GEORGETOWN CHARTER
TOWNSHIP
Building/Zoning
Department
1515 Baldwin
Street
PO Box 769
Jenison, MI
49429-0769
06/29/2007
Don Johnson
DAJ Properties LLC
580 Ransom SW
Grandville, MI 49418
RE: Zoning issues pertaining to P.P. # 70-14-36-440-000, -001, -002, located at: 5101 and 5105 Kenowa Ave., zoning district: RR
Dear Don Johnson,
In the spring of 2007, Georgetown Township became aware of various zoning issues pertaining to the above noted properties at the time an inspection was conducted for the construction of an accessory building. The situation as it appears is as follows:
HISTORY
Investigation into the situation revealed the following historical information:
1980
The first house was constructed on a parcel described as P.P. # 70-14-36-400-019, located at 5101 Kenowa Ave. As far as can be determined, this construction complied with the Township Zoning Ordinance and Building Code.
1988
A variance was requested in August 1988 for P.P. # 70-14-36-400-019, located 5101 Kenowa Ave., to split the 330 foot wide parcel to create two parcels that did not meet the 200 foot minimum width requirement in Chapter 24 for the Rural Residential district. At the August 24, 1988 ZBA meeting, the variance was denied.
Therefore, the parcel was required to remain as one and only one house was allowed to be constructed on the parcel since Sec. 3.18 allows only one principle building on a parcel.
1999
An application for a private street on P.P. # 70-14-36-400-019, located at 5101 Kenowa Ave., was submitted to the Township and was considered by the Planning Commission at the June 2, 1999, June 16, 1999 and July 7, 1999 meetings. The plan showed a private street along one of the property lines with the parcel split into five parcels having access to the private street. At the July 7, 1999 meeting, the Planning Commission recommended to the Township Board to deny the request. The reasons for a recommendation of denial were as follows: 1) the intention of the private street ordinance was to provide for the development of unique pieces of property and there was nothing unique with this piece other than trees; 2) the request was not consistent with the intention of the private street ordinance specifically related to Sec. 3.26(A)(2) which states that “the proposed private streets will not adversely affect the long term development policies of Georgetown Charter Township,” and to approve it would set a precedent. The reasons that were mentioned at the meeting included the fact that the Township did not want a series of independent “bowling alley” streets that did not interconnect, but rather the Township’s development policy was for plats, streets and developments to interconnect.
At the July 12, 1999 meeting, the Township Board denied the private street request and the minutes noted the Planning Commission’s reasons for denial.
Therefore, the parcel was required to remain as one and only one house was allowed to be constructed on the parcel since Sec. 3.18 allows only one principle building on a parcel.
2000
In January 2000, Jeffrey Ammon, attorney representing Don Johnson Construction, requested that the Township Board reconsider the private street application denial.
The following is an excerpt from the January 10, 2000 meeting where the motion was approved to reaffirm the previous denial:
“Moved by Henry Hilbrand, seconded by James Holtvluwer, to make specific findings of fact regarding the private street meeting the approval standards in Section 3.26(G)(1) in the Zoning Ordinance, and for the following reasons the Board determines that:
A. The proposed private street will be detrimental to the public health, safety or general welfare because the development of a cul-de-sac street without connecting to other streets would not serve the long-range development goals for the Township.
B. That the proposed private street will adversely affect the use of land since it does not serve the best interest for future development of the Township.
C. That the private street is designed and will be constructed with width, surface and grade to ensure safe passage and maneuverability of private and safety vehicles since the revised plan met the design standards of the Zoning Ordinance, Section 3.26(F).
D. That the private street will be constructed so as to protect against or minimize soil erosion and prevent damage to the lakes, streams, wetlands, and natural environment of the Township since the site is flat and there are no streams or wetlands on or near the parcel.
E. That it will be practical to construct a public street by reason of steep slopes, excessive cul-de-sac length or other non-financial constraints since the site is flat and free of any constraints that would unnecessarily inhibit the construction of a public street.
Therefore, it is further moved to reaffirm the previous denial because the request does not meet the approval standards of A., B., and E.
Note1: The attorney gave the opinion that the Board may not approve the request
unless all of the approval standards are determined to be true.”
Therefore, the parcel was required to remain as one and only one house was allowed to be constructed on the parcel since Sec. 3.18 allows only one principle building on a parcel.
2000
On April 25, 2000, Bob Mickevicus, former Township building inspector and zoning administrator, approved and issued a building permit for a second house to be constructed on P.P. # 70-14-36-400-019 (contrary to the previous decisions of the Zoning Board of Appeals, Planning Commission and Township Board). No site plan had been approved by the Planning Commission for a site condo to be developed on the property nor was a private street approved (even though one driveway was shown on the plan to be constructed with connections to both houses and providing one access to the street which meets the definition of a private street). There is no documentation as to why the former building inspector/zoning administrator approved the building permit nor is there any documentation as to how he made the determination that the building permit application for the second house complied with Township ordinances and complied with previous decisions of the Zoning Board of Appeals, Planning Commission and Township Board.
The two houses, each noted on the site plan submitted with the building permit application to be located on 145 by 307.5 foot units of property within the single parcel, were recorded as condominiums and the property areas with the houses are shown on a drawing created by Focus Engineering dated 7-25-00 (which incorrectly lists the property as situated in Cannon Township, Kent County, and states that this report was prepared for mortgage purposes only and does not represent a property line survey. The drawing also shows the existing accessory building in front of the existing house located at 5101 Kenowa Ave. The new house was issued the address of 5105 Kenowa Ave. and the parcel number was changed with Ottawa County Property Description and Mapping to P.P. # 70-14-36-440-000 (and the Township used P.P. # 70-14-36-440-001 and -002 to identify 5101 and 5105 Kenowa Ave.).
In addition, Township officials and staff (other than the building inspector/zoning administrator who issued the permit and left the employment of the Township shortly after this time and the assessor who did not question the situation) did not become aware of this situation regarding the issuance of the building permit to construct a second house on the parcel until recently when the question arose regarding the second accessory building in the front yard of 5101 Kenowa Ave.
Shortly after this time the Township placed a six month moratorium on the construction of private streets and reviewed the private street ordinance. In November of 2000, the Township adopted a zoning ordinance amendment to Sec. 3.26 to eliminate private streets except when developed with a planned unit development or a condominium project including a site condo development. The reason for the elimination of the private street ordinance was because most requests for private streets did not meet the intention of the private street ordinance which was to provide a tool for development of a unique piece of property that could not be developed under conventional regulations. Most applications for private streets were by developers who did not want to meet regulatory requirements or could not comply with Township ordinances and just wanted a quick fix to develop “bowling alley” streets that did not meet the Township’s development policies.
2004
On December 9, 2004, a building permit was issued for the construction of a four-season room at 5101 Kenowa Ave. The site plan provided by the applicant only showed the location of the structure on the 145 by 307.5 foot unit of property rather than the whole parcel which includes the other house along with an accessory building in front of the house at 5101 Kenowa Ave. (The accessory building is outside of the 145 by 307.5 foot unit area.) There would be no way the person reviewing the application would have known that the site plan showed only a portion of the parcel rather than the whole parcel with all the other structures. The building permit was issued and the room was constructed.
2006
On March 10, 2006, a building permit was issued for the construction of a 400 square foot accessory building at 5101 Kenowa Ave. The permit specifically stated that no accessory building was to be in the front yard. Again, the site plan provided by the applicant only showed the location of the structure on the 145 by 307.5 foot unit of property rather than the whole parcel which includes the other house along with an accessory building in front of the house at 5101 Kenowa Ave. The building permit was issued; however, construction did not begin until the spring of 2007.
2007
In the spring of 2007, the Code Enforcement Officer inspected the site located at 5101 Kenowa Ave. since the permit for the accessory building had not been given final approval and over a year had passed since the permit was issued. During the inspection he noticed that construction of the accessory building was just beginning and another accessory building existed in the front yard of the house located at 5101 Kenowa Ave. He was aware that two accessory building were not allowed on a parcel and he was also aware that accessory buildings were not permitted in the front yard. The Code Enforcement Officer knew that as a general practice, applicants were required by the Township to remove an existing accessory building when constructing a new accessory building. He also noticed that a pool had been constructed in the rear yard of 5101 Kenowa Ave. and no permits had been issued for the pool.
Consequently, the property owner of 5101 Kenowa Ave. was instructed to obtain a permit for the pool and to remove the existing accessory building in the front yard since only one accessory building is permitted for a parcel as per Sec. 3.4(I), and accessory buildings are not permitted in the front yard as per Sec. 3.4(A). (If the site plan submitted with the building permit application had shown the addition accessory building, the permit would have included the condition that it be removed since this is standard operation procedures for the issuance of a permit for an accessory building when there is one already located on the parcel.)
It was at this time that investigation took place and the whole situation came to light about the two houses on one parcel without Township approval for either a private street or site plan approval for a site condo.
Consequently, a building permit application was submitted to the Township on June 6, 2007 for the pool and an application was submitted to the Township on June 6, 2007 to request a variance to allow the second accessory building to remain in the front yard. The indication was that the variance application would also include an appeal of the zoning administrator’s determination that the second accessory building in the front yard should be counted towards the property identified as 5101 Kenowa Ave.
ADDITIONAL FACTS
1. The Georgetown Township Zoning Ordinance makes no reference to financial arrangements for ownership of structures on parcels or ownership of parts of parcels. Therefore, whatever financial arrangements have been made between the parties involved with the one parcel are irrelevant to the Township as far as zoning issues are concerned. Regardless of the fact that a master deed has been recorded listing this property as a condominium, Township ordinances were always required to be met. In fact, in two places in the recorded document a notation states that all Township ordinances must be met.
2. Sec. 3.18 of the Zoning Ordinance states that no parcel of land shall contain more than one principle building (barring any exceptions listed which this site does not meet).
3. No land splits were approved for the above noted parcel. In fact, a variance request (as noted above) was denied to allow splits to occur that would result in creating parcels that did not meet the requirements for lot width in Chapter 24 of the Township Zoning Ordinance.
4. Sec. 19.2(C) states that the Planning Commission SHALL be furnished with a site plan of the proposed development prior to the creation of a use or the erection of a building for site condominiums in any district.
5. The Planning Commission has in the past approved site plans for a site condominium project which included a private street. Those site plans that were approved were required to meet all Township ordinances concerning individual setbacks and lot width minimums. The private streets were required to meet Ottawa County Road Commission standards and approval from the Road Commission was required.
6. No site plan application was submitted for the above noted property, nor was approval granted for a site condominium project for the above noted property. In fact, the Planning Commission recommended denial of a private street application and the Township Board not only denied the application once, but reaffirmed the denial of the application a second time.
7. No approvals were obtained from the Ottawa County Road Commission for the private street to access these two houses.
8. No approvals were given from the Township Fire Department for the private street (or driveway), nor were the plans even reviewed by the Fire Department.
9. No legitimate reasons were documented as to why the former building inspector/zoning administrator determined that the building permit application for the second house on the parcel complied with Township zoning ordinances and previous decisions of the Zoning Board of Appeals, Planning Commission and Township Board.
10. No legitimate reasons were documented as to why the former building inspector/zoning administrator did not require the applicant to comply with Sec. 19.2 of the Zoning Ordinance (which requires site plan approval for condominium projects) and direct the applicant to submit a site plan and seek approval for the site condominium project.
11. The Zoning Board of Appeals is the only Township entity that has the authority to waive the requirements of the Zoning Ordinance. Therefore, the former building inspector/zoning administrator had no authority to waive the requirement of the ordinance that site plan approval be obtained for the site condo project.
12. When the application for the building permit for the second house on the parcel was submitted to the Township, a drawing by Focus Engineering dated 7-25-00 was submitted showing the two units of property with dimensions of 145 by 307.5 feet. The drawing shows an accessory building located in front of the southern house.
13.
All site plans submitted with subsequent building
permit applications showed only the individual units of property on the parcel
and did not show the whole parcel nor all structures on the whole parcel.
14. Even given all the above noted information, the fact remains that a former Township employee did approve the building permit application and did issue the building permit for the second house on the parcel.
15. The assumption is made that the applicant acted in good faith when constructing the second house on the parcel and believed that he had obtained the necessary approvals from the Township.
DETERMINATION
Therefore, the following determination is made as to how the Township will view the existing structures on the site, as well as any new applications for construction on the site.
1. If the property owners choose to bring the site into conformance with Township ordinances, a site plan could be drawn with a private street showing all elements in compliance with ordinance standards. The site plan could be submitted to the Township for site plan approval for a site condo project. Once the Planning Commission approved a site plan for a site condominium development (as long as the plan was drawn in compliance with Township ordinances), the site would be established as conforming to Township ordinances.
2. No additional single family residences would be approved for construction on the site unless site plan approval was first obtained and such construction was in conformance with the approved site plan.
3. If the property owners decide to leave the site as it currently exists, the Township will view the two 145 by 307.5 foot units of property on the one parcel as individual entities which must individually meet all Township ordinances for setbacks, lot coverage, structure sizes, etc. In other words, the Township will view each of the two units of property as individual lots (though this is still one parcel). Any further construction on the parcel would be reviewed in that respect.
4. Further, the existing accessory building is either considered to be located on a parcel without a principle building which is a violation of Sec. 3.4(L) which states that no accessory building or use shall be permitted on any lot which does not contain a principle building or use. Or the accessory building is considered to be located in the front of the house at 5101 Kenowa Ave. This conclusion is reached because the applicants themselves have more or less established each individual 145 by 307.5 foot unit of property as a singular lot and this existing accessory building (which is located in front of 5101 Kenowa Ave.) is not shown to be within the boundaries established by the applicant as individual lots. In addition, the existing accessory building is in front of the houses and between the houses and the street (in effect in the front yard).
5. The accessory building is not determined to be an accessory building for 5105 Kenowa because it is not shown on the 145 by 307.5 foot unit of property established by the applicant as the lot for 5105 Kenowa Ave. In addition, even if it was to be considered as such, it would still be located in the front yard.
6. Therefore, prior to any further construction on the parcel (for either units of property) and prior to the issuance of the final Zoning Compliance Certificate and Building Certificate of Occupancy for the newly constructed accessory building (which is located behind 5101 Kenowa Ave.), the accessory building in the front of 5101 Kenowa Ave. must be removed.
It is my understanding that you intend to appeal this decision to the Zoning Board of Appeals along with your variances requests to have a second accessory building and to have an accessory building located in the front yard. Since you were waiting for this letter to clarify my determination, let this letter serve as the decision by the zoning administrator as per Sec. 28.10. According to this section, any appeals from the ruling of the zoning administrator concerning the enforcement of the provisions of this ordinance may be made to the Board of Appeals within five days after the date of the zoning administrator’s decision which is the basis of the appeal. The appellant must file with the zoning administrator a notice of appeal specifying the grounds for appeal.
Therefore, if you still intend to appeal this decision to the Zoning Board of Appeals, please present your appeal in writing within five business days from the date of this written decision. If you have any questions, please contact me at 616-457-2690 ext. 243 or visit the office at 1515 Baldwin St.
Sincerely,
Mannette Minier
Zoning Administrator
cc: Don Johnson, 5101 Kenowa Ave., Grandville, MI 49418
Chuck Dyk, PCI, 1913 Baldwin St.,
Jenison, MI 49428