Zoning Board of
Appeals Minutes
MINUTES
Cascade Charter Township Zoning Board of Appeals
Tuesday, February 8, 2005
7:00 pm
ARTICLE 1. Chairman Casey called the meeting to order.
Members Present: Beahan, Casey, Neal, Richards, Vaughn
Members Absent: Crawley and Lewis (both excused).
Others Present: Planning Director Peterson, Planner Deem, Admin.
Assistant Thompson and those listed on Supplement #1.
ARTICLE 2. The agenda was approved on motion by Member Beahan and
supported by Member Richards. The motion carried.
ARTICLE 3. The Minutes of the January 11, 2005 meeting were
approved as presented on motion by Member Beahan and supported by
Member Neal. The motion carried.
ARTICLE 4. Receive and File:
The Minutes of January 4, 2005 were received and filed.
ARTICLE 5. Case #05-2696: Loubert
(PUBLIC HEARING)
The applicant requested a variance to allow a temporary ice rink in
the front yard at 6715 Tricklewood Court.
Planner Deem related the applicants are requesting a variance to
allow a temporary ice rink in the front yard. The Zoning Ordinance
classifies it as a "sport court".
(Member Vaughn entered the meeting at this time - 7:04 pm).
Planner Deem then went through the criteria to be considered before
granting a variance as listed in the Staff Report. Accessory
structures are not allowed in the front yard unless they are setback
200 feet. The time frame for the ice rink is the end of November to
the beginning of March. There are boards surrounding the ice rink that
are four feet tall. The Zoning Ordinance does allow fences four feet
high in the front yard or six feet high with a Special Use Permit. The
side yard allows six foot high fences or 8 foot high fences with a
Special Use Permit. The height of the boards are consistent with the
Township requirements regarding fences. The location is the front
yard. The ice rink cannot be placed in the side or rear yard due to
the topography of the land. The structure is ten feet from the front
yard set back. Several letters from neighbors were received. Most are
in favor of the variance and one is against it. Staff presented a map
showing the location of the homes of the residents that wrote the
letters. Staff today received a letter from a neighbor at the corner
of Tricklewood Drive and Tricklewood Court. That was the lone response
against the request.
Planner Deem then went through the findings of fact as listed in
the Staff Report. 1) the topography prevents placing the structure in
the rear yard. 2) the topography of the land is not self-created but a
unique case. There is no other place to put the ice rink. 3) to allow
a temporary ice rink is the minimum time needed. The structure will
not be up all year around. 4) Staff has received letters from several
neighbors in support the request. 5) taking all the information
regarding this case into consideration, it makes a unique situation
that would not require changing the Zoning Ordinance. 6) this is the
minimum variance necessary.
Planner Deem related the neighbor from whom the complaint was
received is approximately 10 feet below the property where the ice
rink is. Planner Deem related the neighbors complained about four
halogen flood lights on the rink. He has visited the site three times
and has not seen the lights. The applicant would like to put up the
rink each year. In doing so, Staff feels the time frame would be
limited to November through March, weather permitting. The rink
probably not be useable until December.
Planner Deem recommended approval of the variance with the
condition a time frame be placed on the use from November through
March.
Member Beahan asked will it be taken down March 31, 15th or 1st?
Planner Deem related the applicant would like to use it through
February and take it down during March. He views that as the first
week of March.
Member Neal asked what is the purpose of the wood wall? Planner
Deem responded he is not sure. It is used as a hockey rink. The
applicant will answer that question.
Member Vaughn asked how far in from the property line of the
complaining neighbor is the wall? Planner Deem related probably 35 or
40 feet.
The applicants, Kevin and Kelly Loubert, were present. They
presented pictures of the rink with lights. Mr. Loubert related the
boards were put up with the goal toward their house. They put the
lights up and take them down when needed. They didn't want a permanent
structure. The boards are a way to make the level water in the front
yard. Last year the boards were not quite as high. They increased the
heights this year to make it safer.
Member Beahan asked what time in the evening is the latest you have
been skating. Mrs. Loubert responded 8:30 - 9:00 pm. They re-surface
the ice in the evening.
Member Richards asked is there a reason why you couldn't have the
wall one foot high all the way around? Mr. Loubert responded it is
about 18" deep in one end and 4" on the other. Once the ice
gets to be that high it is better for the kids to have the boards
higher and not worry about going over the side.
Member Richards related you could put the wall 18" at one end
and keep the ice in. Mrs. Loubert responded the boards are four feet
high and not 4-1/2 feet. Mr. Loubert related the boards are painted.
Mrs. Loubert related they knew immediately who complained. They did go
to that neighbor and tried to speak to them. They would have handled
it with them versus going through all of this if the neighbor would
have told them they were not happy.
Member Vaughn asked if they have been doing this for a few years.
Mr. Loubert responded we did it last year on a slightly smaller scale
and increased it just a little this year.
Member Beahan asked will it stay at this size? Mr. Loubert
responded yes. Mr. Loubert asked what time in March would you like to
end. Mr. Loubert related they are always hoping for a cold season to
lengthen the season.
Member Beahan related we can put a date in there.
Member Beahan supported by Member Vaughn moved to open the public
hearing. The motion carried and the public hearing was opened.
Linda Wenger related she lives across the street. Last year before
Christmas she was upset about how it looked. Now, she realizes how
wrong she was. Last year she called the township office and spoke with
a woman and asked her if there was any ordinance that kept them from
constructing this structure in the front yard. It took a week to get
an answer. The response was there is no ordinance, check your
subdivision restrictions. Mrs. Wenger related this year when her own
granddaughter is learning how to skate in a safe atmosphere on her own
street she realized that is what we are all about here in Cascade
Township. Mrs. Wenger referred to the Mission Statement from the
Cascade Township web site: "committed to serve the public by
providing the finest community services possible with respect,
efficiency, and integrity". Mrs. Wenger stated the ice rink has
brought our whole neighborhood out of ourselves and is something
lasting for our children and the Louberts' are doing the right thing.
The person who complained has no children and none are welcome in
their yard. Mrs. Wenger related she has lived there since 1988 and the
Louberts are probably the finest neighbors she has ever had and gives
the most of themselves. It is truly something to be adored. She was
against it until she saw how it has brought all the neighbors together
for fun.
Dave VanderArk of 6728 Tricklewood urged the variance be granted
for a few years while the kids grow up.
Lisa Isler of 6700 Tricklewood related she has a daughter who is
ten and she asked for ice skates this year and skates with all the
other kids. She was not happy to find out the rink may have to come
down. The ice rink is a good thing. It is really important that kids
have some place to go after school and on weekends. The Louberts' are
very safety conscious - all the kids wear helmets. She appreciates the
time and expense they have expended to put it up. She hopes the
township allows it to be up for the winter.
Sarah Snyder of 3075 Hayward related this is a great community and
her kids use the rink. Her daughter is learning to ice skate. It is
has been the draw for the neighborhood and is a definite bonus. She
works for a real estate company and when people are looking for a
house they always ask how many kids are in the area. Mrs. Snyder asked
please let them have the variance. It is more trouble for the Louberts
to do the rink and it is so nice for everybody else.
Member Beahan supported by Member Neal moved to close the public
hearing. The motion carried and the public hearing was closed.
Member Beahan related he drove by it and was amazed. It was one of
the nicest ice rinks he has seen. Over all, he related he can't see
any reason not to grant the variance. If the rink is approved, the
time period needs to be limited. Member Beahan asked Mr. Loubert how
long it takes to put it up. Mr. Loubert responded about a week to put
it up, and about a week to freeze. They probably would not start
before Thanksgiving.
Member Richards related he is really torn with this request. He did
read through all the letters and comments from the neighbors. It is a
wonderful benefit to the neighborhood. The concerns are: 1) it is not
typical to have a temporary structure like this in the front yard. He
understands the topography is not an option for them. It is
unfortunate when this kind of dispute does occur. It causes the
neighbors to draw battle lines and that is a sad thing. 2) The biggest
concern is the precedent that would be set by granting this variance.
In particular he is concerned about the height of the one end. If the
high end were at knee level it would be better. The high boards do
make it more unsightly to those who object to it.
Member Beahan related the height does not bother him too much
because of the slope of the land. That is not a major issue for him.
Member Richards asked isn't it higher than what is allowed for the
fence height. Planner Deem responded fences are allowed to be placed
on the property line at a height of four feet in the front yard.
Member Neal related after looking at the photos and hearing the
comments by the neighbors who are here tonight, he sees no reason why
it should not be granted. It seems to be a definite asset for the
neighborhood. He urged the variance be approved.
Member Vaughn related he is impressed by people saying they like
the appearance of it. He is leaning in the direction of granting the
variance. He would have liked the pictures to have been taken from the
complaining neighbor's back windows and not from the Louberts yard to
get a better perspective for what the complaining neighbor sees.
Member Richards asked what if you ran a wooden fence to screen the
ice rink along the property line. Mr. Loubert responded that wouldn't
add to the neighborhood, but it would make things simple for them. He
hopes there would not be "bad blood" in the neighborhood
over this. Mrs. Loubert related a fence would look really bad as all
of the yards connect.
Chairman Casey related this ice rink does require a temporary use
variance regardless of the complaint or no complaint. Planner Deem
responded correct. The Zoning Ordinance classifies this as a sport
court which is an accessory structure. This is the first ice rink we
have dealt with.
Chairman Casey asked if somebody came in to make application for an
ice rink can you require them to submit a plan and dimensions. Planner
Deem responded yes, that would be required under the accessory
structures standards in the zoning Ordinance.
Chairman Casey asked where does the ice rink (structure) melt? Mr.
Loubert responded into the yard and the larger blocks of ice are
hauled into the back yard.
Member Neal supported by Member Vaughn moved that the variance be
granted.
Discussion took place regarding the time limit.
Member Neal amended his motion to state the ice rink would not be
installed sooner than November 1 nor continued beyond the first week
in March.
Member Richards suggested on March 1 or as soon thereafter as
practical.
Member Beahan related the applicant puts it up the week of
Thanksgiving. He suggested an amendment to put it up the week of
Thanksgiving and take it down no later than March 1 or as soon
thereafter as practical.
Member Neal related he was agreeable to the amendments and will
also include in the motion the Staff Report with the findings of fact.
The motion will refer to the variance as meeting the criteria as
presented in the Staff Report dated January 31, 2005.
The motion carried with Member Richards casting a nay vote. Member
Richards related this is a unique circumstance with a benefit which
outweighs any detriment to the adjoining properties.
ARTICLE 6. Case #04-2691: Gantos/Thornhills Properties L.L.C.
(From the Table of January 11, 2005)
The applicant requested bufferyard and curb cut variances for the
re-development of 2845 Thornhills, SE.
Member Beahan supported by Member Neal moved to remove Case
#04-2691 from the Table of January 11, 2005. The motion carried.
Planning Director Peterson presented two site plans. One showing
what the township would like to see with the buffer yard and strip of
land along the northern boundary. The other plan shows how the
applicant would like the strip of land across the north property line.
The Ordinance would require a 25 foot buffer yard which the applicant
has complied with - with the exception of the north property boundary.
That is part of an easement granted and received by Standard Federal
Bank in the late 1980's. The applicant believes the Township does not
have the ability to require a bufferyard in that area. Staff has
suggested a compromise of a 17 foot buffer yard with all the plantings
of a 25 foot buffer yard. The packet contains a series of
communications and responses from the applicant, his attorney and the
Township Attorney. Staff has followed up with representatives of the
bank, both with the local branch and Detroit, and explained what was
happening. At this point the Bank has not replied with any objection
to the township's idea of extending the bufferyard in the easement
area. Also included in the packet are minutes from the 1989 zoning
case. The unique circumstance is the easement was there as a result of
a condition placed on Standard Federal by the Township. The condition
was that a building would not be allowed within 48 feet of the bank
property line. Planning Director Peterson related the buffer yard
would not affect the parking or access to the site as the bank now
enjoys. The applicant does not believe the Township can put this
condition on. The Township Attorney believes it can be done. The
parties at this time agree to disagree. Staff urged the members to use
the findings of fact in making a decision for this request.
Member Neal related the January 17 letter indicates the Township
should confirm the bank's position in regard to this matter. He
believes the references to the bank being contacted are hearsay
statements. He would like something in writing from the bank. Planning
Director Peterson responded he gave the bank all the information the
Zoning Board of Appeals has, including site plans.
Member Neal asked Staff did you specifically ask if they had any
objection. Planning Director Peterson responded yes, we asked for
something in writing and gave them the date of this meeting. No
response was received. He has not received any written response.
Member Neal expressed his concern of liability for Staff. He
related Staff does not have governmental immunity as a township
employee. Member Neal related he feels uncomfortable without something
in writing from the bank. Planning Director Peterson related he asked
for something in writing. The Township Attorney has supported our
position.
Member Richards related Mr. Peterson, as our Staff member, would be
protected by governmental immunity. He is not worried about liability.
Member Richards related he also would feel more comfortable with
something in writing from the bank saying they do not object. He would
like to hear something back.
The applicant, Mike Gantos, and his attorney, Jeff VanderLaan, were
present. Mr. Gantos related they did make an effort to contact the
bank. They do have an issue with the 17 foot buffer. They prefer the
zero foot buffer because they believe they do not have the legal right
to change somebody else's easement area.
Mr. VanderLaan related the issue is whether or not there is a legal
impediment with regard to the buffer yard. He related Mr. Gantos is
more than willing to accept the compromise of the 17 foot buffer yard,
but they believe it is impossible for them to go in and reconfigure
that easement area. Mr. Gantos bought the property and found the
location of the easement and the conditions that were placed on the
property by the previous owner which pre-dates the ordinance that
requires the buffer yard. Mr. VanderLaan stated they do not have the
right under the terms of the easement to simply reconfigure the area
within the easement area. It is not possible. Mr. VanderLaan gave a
brief history of the communications between the applicant and township
which began on January 11. Mr. VanderLaan further related he objects
to Staff contacting the bank directly and feels it complicates their
relationship with the bank. Mr. VanderLaan then presented an email
from the bank regarding the easement. He related the bank agrees with
the applicant's opinion regarding the affect of the easement.
Planning Director Peterson related the reconfiguration does not
take away parking from within the easement. It keeps all the parking
in the easement just as it is now and he believes the bank agrees with
the Township's position.
Mr. VanderLaan stated we simply have no right to control the
easement. The easement documents as they are today do not allow them
to control the landscaping.
Planning Director Peterson related he read the email from the bank
and it looks like a successful negotiation. All the parking is located
within the easement and appears to be a win-win situation.
Mr. VanderLaan stated he does not know what the bank will demand
from them for a legal document.
Chairman Casey related the condition the previous bank had to meet
was that this parcel would not be built on. The prior owner and bank
entered into the easement. He questioned at the last meeting why the
bank had not been contacted. The township probably should not have
contacted the bank. The situation is a non-conforming situation and we
must make it conforming. Chairman Casey related to the applicant,
Staff has provided a compromise and if the applicant can't live with
the compromise, the site plan has to be altered.
Mr. VanderLaan related the easement will not allow the compromise.
The easement is clear. It doesn't say you have to have a certain
number of parking spaces.
Member Richards clarified your position is your client can't comply
with the suggested compromise because it would impair the neighboring
properties' easement. Mr. VanderLaan responded we cannot comply
because it would render the property useless.
Mr. Gantos related he cannot comply with the buffer yards because
they are zero. He does not have time to sit and wait for the bank. He
needs to get his variance and move forward with the project.
Planning Director Peterson related you can move it forward and
still negotiate with the bank.
Mr. VanderLaan related you could approve the variance based upon
that condition.
Mr. Neal related the bank may ask for nothing as compensation.
Mr. Gantos related the bank bought the easement from the former
property owner. They made a payment between Harkness and the bank.
Member Beahan related he is not sure how the applicant worded his
request to the bank. It sounds like the bank is willing to go along
with this. He thinks it can be done.
Mr. Gantos related he does not want to be legally bound.
Planning Director Peterson related at this point the zoning Board
of Appeals can approve the variance as Staff has suggested. If the
applicant wants to wait until our attorney says you can do this, we
can schedule a special meeting.
Member Richards related the email response from the bank suggests
they are willing to negotiate and agree with a bufferyard so long as
they can keep all the parking they currently enjoy.
Mr. Gantos related he is trying to build a development. He does not
want to be legally required to do the 17 foot buffer yard until the
easement is changed.
Mr. Neal related it seems to him the bank is willing to sit down
and consider specifically what is intended. It is a simple way to
solve this problem.
Member Richards related he is unable to approve the variance until
an answer from the bank is received.
Member Beahan related we have an obligation to the community to get
this site back into proper regulation and we have an obligation to do
it. That obligation is bigger than the applicant's need to get a
development done.
Chairman Casey we can't set a precedent or not have this come to a
conclusion just to expedite matters. This problem was not created by
the applicant. We are obligated to give the minimum variance that we
can.
Member Neal suggests we table the request.
Member Richards moved to table. Member Neal supported the motion.
The motion carried.
Mr. VanderLaan objected to the motion to table.
ARTICLE 7. Any Other Business
None presented.
ARTICLE 8. Adjournment
Member Beahan supported by Member Neal moved to
adjourn. The motion carried and the meeting was adjourned at 8:40
pm.
Respectfully submitted,
Jack Lewis, Secretary
JL:MJT
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