Zoning Board of
Appeals Minutes
MINUTES
Cascade Charter Township Zoning Board of Appeals
Tuesday, July 8, 2008
7:00 p.m.
ARTICLE 1. Vice Chairman Lewis called the meeting to order at 7:00
p.m.
Members Present: Beahan, Casey, Lewis, and Wilson
Members Absent: Vaughn (unexcused).
Others Present: Assistant to the Manager Otey, Recording Secretary
Hern, and Members of the Public.
ARTICLE 2. Pledge of Allegiance
ARTICLE 3. Vice-Chairman Lewis requested a motion for approval of
the July 8, 2008 Agenda.
Member Beahan motioned for the approval of the July 8th ZBA Agenda
with support from Member Wilson. All were in favor, none opposed. The
motion carried, July 8, 2008 Agenda approved.
ARTICLE 4. Vice-Chairman Lewis requested a motion for approval or
corrections of the April 8, 2008 Meeting Minutes.
Member Wilson motioned to approve the April 8, 2008 ZBA Meeting
Minutes, supported by Member Casey. All in favor with none opposed.
April 8, 2008 Zoning Board of Appeals Meeting Minutes was approved as
presented.
ARTICLE 5. Case #08-2935: Andrew Dykema
Property Address: 6735 Cascade Road
(PUBLIC HEARING)
Requested Action: The Applicant is seeking to allow a wall sign where
the tenant does not have frontage.
Assistant to the Manager Otey said the Applicant is proposing
modification of the existing wall sign that will allow one (1) of the
tenants that has frontage on the parking lot side of the building,
south, to exchange that allowed signage for a wall sign on Cascade
Road, west side.
The Applicant is not asking that the sign be any larger than it
currently is, simply to move it. The reason for the request is because
the Applicant has rearranged the interior of the building and the
tenant no longer has Cascade Road frontage.
The P.U.D. has some mixed wall signage. Some buildings have signage on
only walls; others were allowed for wall signage on multiple walls.
The most similar case Staff found was a PUD an amendment for the
building south and west of Family Fare. In that case the Township
permitted any tenants in the building to use the west wall for
signage. In larger part, this is because the building was off the road
and the public could not see the signage from Cascade Road and the
sign cutouts were part of the building, and that was the overall sign
package that was approved when the development was approved.
This building was not part of the same architectural wall sign
system but the building was approved with some spaces for wall signage
which the builder did not build.
According to the Sign Ordinance, the Zoning Board of Appeals (ZBA)
where the literal application of the Ordinance would create a genuine
hardship for the sign user and the following criteria are met may
grant a variance. Before the ZBA reaches a decision, they shall
consider the following Findings of Fact:
The granting of the requested variance would not be materially
detrimental to the property owners in the vicinity and there are
several other similar retail strip buildings in the area. Some of
these buildings may also request a similar variance.
The hardship created by a literal interpretation of the Ordinance
is due to conditions unique to that property and does not apply
generally to other properties in the Township. There is no hardship in
this case since the Applicant created it.
The granting of the variance would not be contrary to the general
purposes of the Ordinance or set an adverse precedent. We have granted
some flexibility for signage as part of an overall package, but not on
an individual basis like this.
Staff would recommend denying the Variance request.
Vice-Chairman Lewis opened the meeting for questions from the ZBA
to Staff.
Member Wilson noted in reviewing Staff's comments and the
Township's regulations, each tenant is allowed to have one sign, is
this correct? Assistant to the Manager Otey said it is correct. Member
Wilson noted that the sign is limited to 1-square foot per lineal foot
of building frontage and Assistant to the Manager Otey said that is
correct. Member Wilson clarified that the request for the Variance is
because they do not have frontage on Cascade Road because the
building's entrance is facing the parking lot and Assistant to the
Manager Otey said that is correct.
Member Beahan asked if the sign the Applicant moved to the parking
lot side of the building meets Township requirements and Assistant to
the Manager Otey said the sign is within compliance.
Member Wilson asked if Staff is proposing that the Applicant leave
the Rehab Pros sign where it is and Assistant to the Manager Otey said
the sign is on the south side of the building and that sign stay where
it is, yes.
Vice-Chairman Lewis invited the Applicant to provide a report to
the Zoning Board of Appeals.
Wayne Wiarda, the building's manager representing Andy Dykema, said
the sign has been located on Cascade Road for eight (8) years and they
are asking the sign remain in that location and they had moved it
temporarily. The Applicant had moved the sign, temporarily, in
obtaining a sign permit to add a fourth listing to the sign for the
new dentist. They are hoping for the variance so they may move the
sign back to its original location on Cascade Road.
Mr. Wiarda noted there are four (4) natural sign locations on this
building with two (2) gable-ends facing Cascade Road and the other two
(2) gable-ends facing the south parking lot.
The Applicant noted that the sign's current location does not have
good visibility and it is squeezed in with an overhang entrance at the
patient drop-off area and are asking that the sign be relocated to its
original spot of eight (8) years.
The Zoning Ordinance in question seems to apply to a multi-tenant
strip center where each tenant has their own entrance with their sign
above. The ordinance does not seem to apply to a multi-office building
with a single-shared entrance. It would not make sense to split the
signs up and hang them above each dentist and office that is occupied.
This is not a retail strip center and does not feel that this applies
in his case.
The Applicant also drove the area and noted a similar building
along Kraft Avenue in the Glenwood Hills area and referred to one (1)
sign placed high on the building for a tenant who occupies an office
in a separate wing on the lower level of the building and provided
other examples within the Township.
Mr. Wiarda believes the current sign's location is not a
natural-look for the building and they are requesting the sign be
placed back to its original location of 8-years.
Vice-Chairman Lewis opened the meeting for any questions of the ZBA
to the Applicant.
Member Beahan asked Mr. Wiarda to clarify that the Rehab Pros sign,
as it was, is the sign that was moved to the west side of the parking
lot? Mr. Wiarda said that they had switched the Rehab Pros sign with
Advantage Health. When the tenants originally leased the building,
Advantage Health was towards the front and Rehab Pros towards the back
and this is how the signs had been for almost the past 8-years. The
signs were switched to conform to the Township's sign ordinance and
now they would like to switch them back. Member Beahan clarified that
there would be two (2) signs on Cascade Road and Mr. Wiarda said there
have always been two (2) signs on Cascade Road and by switching signs
made them more in compliance with the tenant's locations within the
building. They would like to move Advantage Health's sign to the north
and Rehab Pros to the south.
Member Casey said he wanted to clarify that Advantage Health has
been moved and they will stay in their new office location and Mr.
Wiarda said that is correct, they are not allowed to put the Rehab
Pros sign where they would like to, therefore it was moved temporarily
to the south side facing the parking lot. Member Casey clarified that
Advantage Health is no longer behind the large tree indicated in the
site plan and Mr. Wiarda said that as you are standing on Cascade Road
facing the building, the Advantage Health sign is on the gabled-end to
the left and they would like to move the Rehab Pros sign to the
opposite gabled-end to balance the signage. Member Casey said that
Advantage Health's sign used to be on the south gabled-end and Mr.
Wiarda said that is correct. Member Beahan noted that the south
gabled-end is currently empty.
Vice-Chairman Lewis noted that the Applicant has presented
information for consideration by the ZBA but believes that the
allowance of the variance is a concern because the ordinance reflects
that those on Cascade Road are allowed to have the signage. The ZBA
often hears requests from businesses not on Cascade Road to place a
sign on Cascade Road. This situation has a business that is no longer
on Cascade Road and recognizes that if the ZBA were to allow this to
happen, additional businesses not on Cascade Road would request
signage on Cascade Road.
Mr. Wiarda noted that there are four (4) tenants within the
building that share the address of 6735 Cascade Road and all four (4)
of the tenants are equally Cascade Road tenants. He views each of the
tenants as equal tenants, they all pay the same rent, share the one
(1) entrance into the building and share the same address.
Member Beahan asked how the building is entered and Mr. Wiarda said
that there is one entrance door with a shared corridor to each of the
tenants' offices.
There were no further questions of the Applicant and Vice-Chairman
requested a motion to open the Public Hearing.
Member Casey motioned to open the Public Hearing, supported by
Member Beahan. All in favor with none opposed, the Public Hearing was
opened.
Wayne Meulendyk, 2468 Burton Woods Ct. SE, said he believes all of
the tenants are Cascade Road businesses and to enter the parking lot,
to do so is off of Cascade Road. From his perspective as an individual
driving down the street and looking for this business he could see
concern for his safety in trying to locate the place never having been
there before.
Vice-Chairman Lewis asked Staff if the Township received any phone
calls or letters regarding the case and Assistant to the Manager Otey
said they did not.
Member Beahan motioned to close the Public Hearing, supported by
Member Casey. All in favor with none opposed, the Public Hearing was
closed.
Vice-Chairman Lewis noted the Applicant made a good point noting
that all four (4) of the businesses have an address on Cascade Road.
He opened the meeting for additional comments from the Zoning Board.
Member Wilson noted that in reviewing the Findings of Fact the
Board is to make a decision. She does not believe in approving the
variance that it would be materially detrimental to others in the
vicinity and would provide assistance in locating the business on
Cascade Road. The hardship is created by the Applicant but agrees with
the public member noting it would be beneficial to find these
businesses on Cascade Road. These tenants are all Cascade Road
businesses and are not receiving preferential treatment than any other
business on Cascade Road.
Member Wilson motioned to approve the Variance request to allow a
wall sign where the tenant has indicated.
Member Casey noted that the Township has made interpretations over
the years and does not believe the ZBA can go ahead and make changes
and if the change needs to be made, should be done through the
Applicant's zoning. This particular sign would be located right behind
the large tree. The plans indicate the large tree without its leaves,
once the leaves are on the tree, no one will be able to see the sign.
Advantage Health now has more visibility than they used to have and he
can see the logic of the Applicant's presentation. Member Casey,
however, noted that the ZBA has seen numerous requests for signage
along Cascade Road and 28th Street come from one (1) building with
multiple tenants and believes others will request the same variance if
this one is approved. He noted that some of the P.U.D. planning is to
take care of these types of issues. He supports Staff's decision in
denying this request.
Member Beahan noted that the building's entrance is clearly marked
by the canopy that goes towards the parking lot and noted the street
numbers of 6735 are above the canopy. The building has its entrance on
the opposite side of Cascade Road and noted that traffic can clearly
see the entrance points of the building. Member Wilson asked if the
Applicant could put their address numbers facing Cascade Road and
Member Beahan believes the Applicant could move the street numbers,
they are not limited.
Vice-Chairman Lewis noted there are four (4) occupants within the
building with two (2) on the Cascade Road side of the building. The
Township is saying that those located on Cascade Road side of the
building should receive the signage. He noted that the Applicant made
valid points as to the uniqueness of this situation as this property
is not a P.U.D. and this is under the B1 Village Zoning and as such,
the ZBA should be reviewing that zoning which clearly states the
tenant must have Cascade Road frontage.
Vice-Chairman Lewis noted there is still a motion on the table to
disagree with Staff's recommendation and the Vice-Chair is requesting
a second to the motion. Not hearing one, Vice-Chairman Lewis removed
the motion from the table and requested a different motion be made.
Member Beahan motioned to deny the Applicant's request for a
variance to allow a wall sign as requested with the reason that if
this were allowed what is to prevent others from making the same
request, setting a precedent. Member Casey supported the motion.
Vice-Chairman Lewis called the motion to question. Three (3)
members in favor of the motion to deny the Applicant's request with
one (1) opposed. Motion carried.
ARTICLE 6. Case # 08-2936: Albert Sears
Property Address: 6625 Burger Street
(PUBLIC HEARING)
Requested Action: The Applicant is requesting a Variance to construct
a detached building before the home is more than fifty-percent (50%)
completed.
Assistant to the Manager Otey said the Applicant is currently
constructing a new home on this property.
The Township's Variance is needed due to the timing of the
construction of the garage. The Ordinance limits the start of a
detached building until after the home is fifty percent (50%)
completed. The intent of this section of the Ordinance is to avoid
having an accessory building on a parcel with no principal structure.
The Building Department has indicated that fifty percent (50%)
would be when the home is being framed. The Building Department has
also indicated that at the time of the Applicant's Variance Hearing,
the home will be approximately thirty-five percent (35%) complete.
Staff researched previous cases and found a couple of similar
requests in 1995. One case was tabled and the other case was denied
was because the applicants had no plans to build a home and the ZBA
did not want the accessory building on the property for an indefinite
period.
Staff has discussed with the Applicant the idea of providing a
Performance Bond that would allow the Township to remove the accessory
building if the home is not completed. Staff believes this could be
used to help satisfy the intent of this regulation.
Before the ZBA can grant a Variance, they must review the Findings
of Fact:
That there are exceptional or extraordinary conditions or
circumstances that are inherent to the property in question and that
do not apply generally to the other nearby properties in the same
zoning districts. The intent of this section is to avoid having an
accessory building with no principal structure. The Applicant has
pulled the building permit for the home and have already begun
construction.
This is the result of the action by the Applicant but unlike a
setback variance, the issue is timing and not dimensional.
The Applicant is allowed to have the accessory building without the
variance it would be started later, when the home is fifty percent
(50%) completed. The Planning Commission has approved the size of the
accessory building; the Zoning Board is to determine the construction
time of the accessory building.
Staff does not believe the variance would be harmful since the
Applicant has already started building the home.
The Township has received only a couple of these requests over the
past thirteen years. This does not seem to be a common occurrence and
with the home already being built and the Applicant's willingness to
provide a Performance Bond the concern should be addressed.
Staff recommends approval of the Variance with the following
conditions:
1. The Applicant provides a Performance Bond in the amount of $5,000.
2. This bond will be released once the home is completed.
3. The Planning Director will report to the ZBA and the Applicant if
he believes the bond will need to be used.
Vice-Chairman Lewis opened the meeting for questions of Staff by
the ZBA.
Member Casey how the Township arrived at the $5,000 bond and
Assistant to the Manager Otey said it would be used to cover the
expenses of tearing down the accessory building if needed.
Applicant Albert Sears said he is building a detached garage
because he did not believe it would look attractive if attached to the
house.
The lumber for the house was delivered this afternoon said the
construction crew would be putting in the steel beams for the
basement, start with the frame in the morning. He believes the home
would be fifty percent (50%) completed in approximately two (2) weeks.
He would like to pour the garage footings now so the framing crew,
once having the roof completed, could begin construction on the
garage.
Both the house and the garage are being constructed with sip-walls
that are manufactured off-site with the window frames already in
place, making less waste at the site, and also allows for the home and
garage to be constructed faster.
It is a matter of economics to hold onto the framing crew on site
by having the garage ready to go for them next, therefore, Applicant
Sears is asking for the variance by two (2) weeks ahead of fifty
percent (50%) completion of the home.
Mr. Sears also said that according to Staff's recommendations, he
would be willing to provide a Performance Bond in the amount of $5,000
but wondered if this could be waived since he is only looking at two
(2) weeks until the home is fifty percent (50%) complete. He is
willing to do whatever the Board recommends to keep the construction
crew working on his property.
Vice-Chairman Lewis opened the meeting for questions of the
Applicant of the ZBA.
Member Beahan asked the Applicant if he has been held up a bit with
this project and Applicant Sear said he has been since he is doing the
general contracting and he thought he could do the basement and the
garage at the same time and this slowed him down.
He would like to keep the crew onsite and not have to wait for them
to return if he cannot start on the garage.
Member Beahan motioned to open the Public Hearing, supported by
Member Wilson. All in favor with none opposed, the Public Hearing was
opened.
Vice-Chairman Lewis invited members of the public to address the
case.
There were no public members and Vice-Chairman Lewis asked Staff if
any letters or phone calls were received at the Township regarding the
case. Assistant to the Manager Otey said none were received.
Member Beahan motioned to close the Public Hearing, supported by
Member Casey. All in favor with none opposed, the Public Hearing was
opened.
Vice-Chairman Lewis noted that it appears to him that this is a
difficult situation, when the ZBA provides a variance it weakens the
variance as written and sets precedence for future requests allowing
for more leniencies such as three weeks or four weeks. He believes
that if the variance is approved the chances of the bond being waived
are slim.
Vice-Chairman Lewis recognizes the potential of financial hardship
if the Applicant needs to wait two (2) weeks and the Ordinance speaks
clearly that financial reasons are not a determining factor in
changing an ordinance.
Member Beahan said he appreciates the fact that the Applicant
realized that he could not build both at the same time and has worked
well with the Planning and Building Departments instead of proceeding
with the construction.
Member Beahan also noted that the Applicant is seeking the variance
for two (2) weeks and is having the home and building constructed in
quality materials quickly and is comfortable granting the variance.
Member Beahan motioned for approval of granting the Applicant's
request for a variance to construct a detached building prior to the
home being more than fifty percent (50%) completed with Staff's three
(3) recommendations, supported by Member Casey.
Member Casey asked if the workshop included with the accessory
building asked if the building would be used in conjunction with a
business. Vice-Chairman Lewis noted that at last night's Planning
Commission meeting, the Applicant did state that the workshop would
not be used in conjunction with a business and he is constructing the
walls with a thicker insulation to help muffle the noise.
All in favor with none opposed, motion carried.
ARTICLE 7. Case # 08-2938: Mark and Mary Mochel
Property Address: 1919 Watermark Drive
(PUBLIC HEARING)
Requested Action: The Applicant is requesting a Variance to allow a
roof structure on an existing deck that is inside the required
setback.
Assistant to the Manager Otey said the home was built in 2001, the
deck was added after the home was built.
The Building Department has no record of when the deck was built. A
deck of this size and type would have required a building permit.
The Variance is needed because the deck was built inside the
required 25-foot rear setback.
Two explanations for the deck inside the setback are:
a) The deck did not need a permit because it was a low profile, under
30-inches high, and was treated as a patio
b) It was built without the proper permits.
The deck is 36-inches high and cannot be treated as a patio.
Even if it was a patio, adding a permanent roof to the deck would
change it to part of the structure and would require that the entire
structure (deck and roof) meet the 25-foot rear yard setback. However,
the patio deck was installed only 23-feet from the rear property line,
so it is impossible to simply enclose the existing deck without a
variance.
The Township did have one (1) other similar case in the
neighborhood in 2001 and the Township denied the owner a 2-foot
variance for an addition to the home. The case was resolved when
Watermark agreed to sell a small portion of property to the owner.
The Township also had a deck removed from a home in Watermark when
it was discovered that it was located in the rear setback.
Because the Township is now aware of the deck, a decision should
also be made on the location of the existing deck as well as adding
the roof. In other words, the deck cannot stay in its current location
without a variance.
In reviewing the Findings of Fact, there are no exceptional
circumstances in this case. The lot is quite common for this
neighborhood and has no extraordinary conditions. The fact that it
backs up to the golf course is also not unique to this neighborhood or
other developments in Cascade that have common open spaces.
The Applicant did not have the deck built but if a permit were
requested, this would have been avoided.
This is small amount of a variance but the Applicant does have
reasonable use of land without the variance. Denial would not prohibit
them from having a deck or a roof structure but it would require that
the deck be modified to fit the setback.
Allowing the variance could have a larger impact since the Township
has denied one variance in the neighborhood and required another owner
to remove an illegal deck.
With only a couple of similar cases, this is not a common request.
However, Staff would be concerned with the underlying impact granting
the variance would have since the deck was built with no permit and in
the wrong location.
Staff recommends denial of the variance to add the roof structure
to the existing deck and also recommends that a variance not be
granted for the existing deck and that the existing deck be modified
to comply with the 25-foot setback. Once the owner has complied, they
could add the roof to the compliant deck.
Vice-Chairman Lewis opened the meeting for questions of Staff from
the ZBA. There were no questions.
Vice-Chairman Lewis invited the Applicant to provide a report to
the ZBA.
Applicant Mark Mochel of 1919 Watermark Dr. SE submitted his
presentation to the board members and reviewed the documentation.
Mr. Mochel thanked the Board for the opportunity to participate in
the hearing and for their time and attention to his presentation.
After a detailed review of Planning Director Peterson's Staff
Report, it is his conclusion that the basis for his recommendation for
denial of the roof structure variance, and the further denial of a new
variance for the existing structure is based on the following
assumptions:
1. Lack of proper permit for the existing deck structure: the Township
claims to have no record of deck construction.
2. Past precedence: this Board has previously rejected two (2) setback
variance requests for structures in the same neighborhood.
3. Setting of future precedence: approval of the request would have
larger impacts and set the stage for future requests.
In doing his own research of the history of the property and with
support from Legacy Homes, Watermark LLC, and the surrounding
residents, the Applicant has obtained additional information that
addresses each of these concerns.
It is Mr. Mochel's recommendation that the Board should reject the
need for a variance to keep the current structure in place on the
basis that it was built as part of the new construction in 2001, and
was approved by the Township per the issuance of a Certificate of
Occupancy.
Mr. Mochel's recommends that the request to modify the existing
structure by the addition of a roof be approved on the basis that this
planned construction would not change the footprint of the existing
structure that has already been approved by the Township.
Regarding the issue of lack of proper permit for the existing deck
structure, Legacy Homes, with representatives present this evening
Jeff Wassenaar and Gerry Wassenaar, has confirmed that the existing
deck structure, in its current location, was included in the
construction of the home in 2001. The deck structure is shown in the
original home drawings, as they were submitted to the Planning
Department to obtain the initial building permit. The drawings are
shown in Attachment A.
In addition, the Applicant has contacted the previous and only
other homeowner, Steve Carey, of the property. Mr. Carey confirmed
that they did not add the deck following the original construction,
and in fact, purchased the completed home including the deck structure
from Legacy Homes.
It is Applicant Mochel's understanding per Legacy homes that it was
not required to show deck structures as part of the site survey in
2001, although this is now a requirement for new home construction. It
is through his own submission of the new survey that the Township
claims to have been informed of the existence of the deck structure
and referred to Attachment B.
The Township inspected the home and the Final Building Inspection
awarded on August 20, 2001. Independent of any debate regarding the
site plan details on file, with the issuance of a Certificate of
Occupancy, the Township did have the opportunity to review the
structure and did approve the combined home and deck structures in the
existing footprint, referring to Attachment C.
There was no disclosure of any setback concerns by the Township to
Legacy Homes upon final inspection, from Legacy to the first owner in
2001-2002, or to himself when he purchased the home in May 2007.
The current deck structure in its present form has been in place
since 2001 with no known complaints from the neighbors, the Watermark
Country Club or Watermark LLC regarding the proximity of the deck to
the property line.
Conclusion: the current deck structure was not added after the home
was built, and in fact was constructed by Legacy Homes in 2001 and
subsequently approved by the Township through the final inspections
process. On the basis of this conclusion, the Applicant sees no
requirement to initiate a new variance to approve an already existing
structure and respectfully request that the Board reject Planning
Director Peterson's recommendation for denial.
The request for Variance to allow modification to the existing deck
structure through the addition of a roof. Applicant Mochel referred to
Attachment D.
The details of the existing structure and the proposed modification
have been reviewed and approved by the Architectural Committee of the
Watermark Homeowner's Association per the Association bylaws. That
committee is made up of Jack DeBruin, homeowner, and Kevin Einfeld of
Watermark LLC. Mr. Einfeld is also recommending approval by this Board
of the proposed construction and referred to Attachment E that was
faxed to the Township on July 7, 2008.
All of the surrounding neighbors including and in excess of the
300-foot Township requirement has also reviewed the details of the
existing structure and the proposed modification. All have indicated
their support and approval of the existing structure and proposed
construction through petition of signatures referring to Attachment F.
The Planning Department and Zoning Board of Appeals were made aware
of this setback concern through the Applicant's own actions and desire
to follow the permit process within the guidelines established by the
Township. Mr. Mochel is in no way attempting to subvert the building
permit process.
Conclusion: All parties affected by the location of the existing
deck structure and the proposed modifications have indicated their
approval. Mr. Mochel respectfully requests that the Board consider
this general community acceptance in granting approval to proceed with
the roof structure modification on the existing building/deck
footprint.
Past Precedence: the denial of two (2) setback variance requests in
the same neighborhood has been cited as the basis for denial of the
Applicant's request.
In each case, it is Mr. Mochel's understanding that the variance
requests were created by the Applicant on the basis that the planned
construction was designed too close to the lot property line and he
referred to the Findings of Fact requirements referring to Attachment
G.
Mr. Mochel's request for the modification of he existing deck
structure will not in any way modify the existing setback.
Construction is planned within the existing footprint that was
approved by the Township as noted above.
Conclusion: The previous precedence is not applicable, since the
initiation of the variance is for different reasons. Mr. Mochel
respectfully request that the Board consider and approve his request
on the basis of facts presented here, and not on the basis of other
dissimilar cases.
Regarding setting of future precedence and comments from Planning
Director Peterson's Staff Report:
"Allowing this could have larger impacts since the Township
has denied one variance in the neighborhood and required another owner
to remove an illegal deck."
"With only a couple of similar cases this is not a common
request. However, Staff would be concerned with the underlying impact
granting a variance would have since the deck was built with no permit
and in the wrong location."
It has already been established that there is full neighborhood
acceptance of Mr. Mochel's request, and that the previous denials were
based on different set of facts. It has been further demonstrated that
the existing deck structure was not improperly built.
Conclusion: The facts in Mr. Mochel's case are truly unique to the
circumstances of the existing deck structure and the circumstances of
the original site plan, survey, building permit and final inspection.
Therefore, it is Mr. Mochel's opinion that the approval of his request
would not in any way set precedence for future setback concerns. He
respectfully requests that the Board consider this when approving his
request to proceed with the planned construction.
In closing, Mr. Mochel thanked the Board for their time and
attention to the matter at hand, and looks forward to a positive
outcome and approval of his planned construction. He considers the
construction to be an investment in his home, neighborhood and
ultimately the Township through employment of local contractors and
increasing property value.
Mr. Mochel submitted his own Findings of Fact (Attachment G) and
presented his summary.
A. That there are exceptional or extraordinary conditions or
circumstances that are inherent to the property in question and that
do not apply generally to the other nearby properties in the same
zoning district.
" As noted by Planning Director Peterson, there are no
extraordinary physical circumstances or conditions that separate his
property from others in the area. However, the circumstance of the
previous approval of the existing deck structures makes this an
extraordinary case.
" Facts:
a) the existing structure has been in place for seven (7) years with
no complaints.
b) The modified deck and roof structure will not exceed the current
setback.
c) The 23.1-foot setback of the current structure has already been
approved by the Township.
B. That the exceptional or extraordinary conditions or
circumstances are not the result of actions of the Applicant taken
subsequent to the adoption of this Ordinance (any action taken by an
applicant pursuant to the lawfully adopted regulations preceding this
Ordinance will not be considered self-created.
" It can be clearly stated that circumstances of this variance
request are not the result of actions taken by Mr. Mochel. The
Township has already approved the existing setback and his proposed
modification of that deck lies within the same footprint.
C. That such variance is the minimum variance that would make
possible the reasonable use of the land, building or structure.
" The requested variance is the minimum variance that would make
possible the reasonable use of the land, building or structure. The
addition of the roof structure to the existing deck within the same
footprint is the most reasonable use of the above fro cosmetic, cost
and structural reasons. To disassemble and reconstruct an existing
structure is not reasonable.
D. That the granting of the variance will not be injurious to the
neighborhood.
" As has been shown by the support of he Homeowner's Association,
Watermark LLC and the petition of the residents of the neighborhood,
it can clearly be stated that the approval is not injurious to the
Neighborhood. The issues of precedence have already been dismissed.
Therefore, Mr. Mochel also sees no detriment to public welfare.
E. That the condition or situation of the specific piece of
property, or the intended use of the property, for which the variance
is sought is not of so general or recurrent nature as to make it more
reasonable and practical to amend the Zoning Ordinance.
" It has already been established that the existing deck
structure was built as part of the new home construction, was approved
in its current location and therefore no additional permit was
required. This request is unique due to the previous approval by the
Township. Mr. Mochel recommends that this is not common and therefore
does not make it practical to amend the Zoning Ordinance.
F. The Zoning Board of Appeals shall further find that the reasons
set forth in application justify the granting of the variance, and
that it is the minimum variance that would make possible the
reasonable use of the land, building or structure.
" The issue of reasonable use has been covered in Item 3 above.
Vice-Chairman Lewis opened the meeting for questions of the
Applicant from the Board. He noted that building inspectors provide
approval of the construction but do not measure setbacks, etc.
Assistant to the Manager Otey said she is concerned with the
Applicant's statement regarding they are not required to show deck
structures on home site plans. The Township has required that if the
structure was going to be 30-inches or higher it would have to be
including in the building plans so the setbacks are met.
Vice-Chairman Lewis clarified that if a structure is 30-inches or
higher it is a deck and needs approval but if the structure is less
than 30-inches it is considered a patio and would not need a permit.
Assistant to the Manager Otey said that is correct.
Member Beahan asked Staff if they know what the record shows that
is held by the Assessment Department and Assistant to the Manager Otey
said she does not have that documentation but does know that when the
site plan was submitted in 2001, it did not show a deck on the
property.
Member Lewis noted the survey that shows the deck and Assistant to
the Manager Otey said that is a current site plan showing the deck,
the plan submitted in 2001 does not show the deck.
Applicant Mochel noted that in 2001, decks were not required to be
part of the site plan.
Member Wilson asked if this case should be tabled and Vice-Chairman
Lewis clarified that the Board will further need to review the
Township's records and appreciates the packets of information the
Applicant submitted.
Member Casey noted that within the Township's packet there is a
survey of the property without the deck and agrees the Board needs
more information as to if the deck was actually built with the home
and if there was not an ordinance at the time requiring decks be
included in the home's site plan. He is uncomfortable making a
decision with the information presented but would like to hear from
the Public.
Member Wilson motioned to open the Public Hearing, supported by
Member Beahan. All in favor with none opposed, the Public Hearing was
opened.
Jeff Wassenaar of Legacy Homes said he has built several homes
within the Township and practice at that time was to draft the site
survey configured by the cement foundation laid. It has been in just
the past couple of years that the Township required that decks be
included within the site plans. The deck is clearly noted on the plans
requesting the building permit. They were not trying to conceal
anything and the deck was there at the time of inspections in 2001.
Vice-Chairman Lewis noted that Mr. Wassenaar has built a lot of
homes in the area and was familiar with the setbacks during
construction and asked if they measured for the setbacks during
construction?
Mr. Wassenaar noted that the posts for the deck are within
compliance of the setback and the deck's cantilever is not. The
practice in 2001 was not to show the decks in the surveys.
John Tambor, a Watermark resident, said his house was built also
built by Legacy Homes in 2003 and has the same issue as the Applicant.
He is curious to know where the Board will go with this issue, if they
table the case is it due to the Findings of Fact or when the
Certificate of Occupancy was issued. His home was constructed with the
deck and has the same exact problems that the Applicant does. The
findings will be crucial to many homeowners in Watermark. He believes
there are quite a few homes that have the same issue.
Vice-Chairman Lewis said the Board needs more information on this
case. Mr. Tambor appreciates the Board reviewing additional
information and he is a member of the Homeowner's Association.
Vice-Chairman noted that if the case is tabled, they will seek more
information from the Assessment Office and the Township and the case
will be reviewed next month.
Member Wilson asked Mr. Tambor if he knows how many homes this
affects and Mr. Tambor said approximately twenty (20) homes.
Member Beahan asked if the golf cart path is close to the property
line and Vice-Chairman Lewis said it is very close at some property
lines and there would not be an option to purchase additional land.
Vice-Chairman asked if the Township received any phone calls or
letters regarding the case. Assistant to the Manager Otey said the
Township did not.
Applicant Mochel asked what makes up a proper building inspection:
the builders and the inspectors? It seems the Township is taking the
direction that they had no knowledge of the deck and that is not
correct. The deck is there, it was visible during construction and
concerning parties at the time of construction raised no issues. He is
here before the ZBA strictly by his own actions in trying to follow
Township procedures. He is curious as to his next steps regarding the
issue but the deck was there when the home was constructed.
Gerry Wassenaar of Legacy Homes said he told the Applicant when
approached about enclosing the deck that he would talk to the Township
regarding if the roof is allowed. The Township told Mr. Wassenaar that
if the deck was an existing structure then enclosing the deck should
not be a problem. In his mind, the deck has been in existence and
therefore included in the Applicant's plans for the variance.
Member Beahan motioned to close the Public Hearing, supported by
Member Casey. All in favor with none opposed, the Public Hearing was
closed.
Vice-Chairman Lewis opened the meeting for any further comments
from the Board. There were no comments.
To answer the question of the Applicant of what will happen next,
Vice-Chairman Lewis explained that the Board will be sitting down with
the Planning Department, the building inspector and probably with the
Township's Attorney to review the background of the property, the
Township's position regarding the case and the case will be brought
back at next month's meeting. The Applicant's porch may be on hold for
the next month or maybe longer depending on the information received.
He thanked the Applicant for the information he presented this
evening. Applicant Mochel asked if he would be contacted during the
course of the research by the Township and would like to be included
in the meetings and conversations. Vice-Chairman Lewis noted that the
Applicant may be contacted during the research but would depend upon
the information received and no decisions would be made prior to the
next Zoning Board Meeting.
Member Wilson motioned to table Case # 08-2938: Mark and Mary
Mochel until additional documentation and information is reviewed from
the appropriate parties at which the case may be brought back next
month provided that the ZBA has the documentation and information that
they need. Member Beahan supported Member Wilson's motion. All in
favor with none opposed, motion carried. Case # 08-2938: Mark and Mary
Mochel tabled.
ARTICLE 8. Case # 08-2939: BZ Ventures
Property Address: 6640 28th Street
(PUBLIC HEARING)
Requested Action: The Applicant is seeking a Variance to allow for a
taller and larger ground sign than permitted by the Sign Ordinance.
Assistant to the Manager Otey said the Applicant is here this
evening seeking a Variance for a ground sign for the development of
the new building at 6640 28th Street that is within the B1 Zoning
District.
Within the Board's packets, Staff has provided the regulations for
the B1 Zoning District regarding ground signs.
The Applicant is proposing a sign of approximately 6.5-feet high
and 57-square feet in area. This would require a setback of 25-feet or
more from the property line. The Applicant is proposing a front
setback of 10-feet.
The reason the Applicant is seeking the variance is because of the
large amount of road right-of-way present in front of the parcel.
When 28th Street was moved, the right-of-way never changed so the
setback of only 10-feet actually looks much further back.
The Applicant did check with the Kent County Road Commission (KCRC)
about reducing the right-of-way. However, due to the amount of
utilities in the right-of-way it would not be practical. However, the
KCRC did indicate that if the current road had the "normal"
right-of-way, as shown on the drawing, the sign setback would not need
a variance.
The only other similar variance Staff found was the variance
granted to Cascade Roadhouse in 2006. They were allowed a taller sign
but only because it was on top of the waterfall. The sign itself was
within the Township's limits.
In reviewing the Findings of Fact, the properties on Old 28th
Street also are impacted by the wide right-of-way. However, this
property is the most impacted by the excessive right-of-way due to the
corner.
The excessive right-of-way makes this situation unique even from
the others. They are not asking for a sign any larger than what would
be possible in the B1 Zoning District. They have also determined that
if the "normal" right-of-way were in place, this sign would
not need a variance.
Given the unique right-of-way and the sign would otherwise be in
compliance it would not set an adverse precedent.
Staff recommends approval of the variance as requested.
Vice-Chairman Lewis opened the meeting for questions of Staff from
the ZBA. There were no questions.
Vice-Chairman Lewis invited the Applicant to provide a report.
Nathan Vriesman from Prein and Newhof was representing the
Applicant and had no further comments to Staff's report.
Vice-Chairman Lewis asked Mr. Vriesman if the site plan he reviewed
was based on the "normal" right-of-way and referred to the
line drawn on the site map. Assistant to the Manager Otey said that is
correct. Vice-Chairman Lewis said if this was the case then the Board
is to refer to the size chart, provided in their packets, in relation
to the setback feet, the size of the sign is 50-square feet and should
be back 25-feet. Assistant to the Manager Otey said this is correct
for the sign the Applicant is proposing. Member Lewis said the setback
in the chart says 10-feet, is that correct? Assistant to the Manager
Otey said that if the Applicant were to measure from the
"normal" right-of-way, they have the sign setback 10-feet
and in looking at the chart, the Applicant could have a sign of
30-square feet at 5-feet high. The Applicant is requesting a 6 ½-foot
sign at 57-square feet.
Representative Vriesman said that he has spoken with KCRC regarding
the right-of-way and they said in a normal situation KCRC would
require 60-feet road right-of-way. The line on the drawing behind the
sidewalk is where the KCRC, if they were to have a normal situation,
is where the road right-of-way would be. This is identical to the road
right-of-way on the north side of the road. If you were to measure
where this sign is located in relation to where the road right-of-way
line would "normally" be, there is approximately 35 to
40-feet of setback. Representative Vriesman noted the sign's location
that is 10-feet within the existing right-of-way line that is
artificially large on the map. They are measuring from the
"normal" right-of-way line that is 60-feet.
Member Wilson clarified that the line labeled "typical"
is the line to be used as the setback line and asked if KCRC concurs
as well. Mr. Vriesman said they do agree and for their purposes they
do not care about this land. Their concern is to have enough land to
maintain their road and have said that 60-feet is enough for them to
maintain the road.
Vice-Chairman asked if he has written documentation from KCRC
regarding their comments and Mr. Vriesman believes Staff spoke with
the KCRC but does not have documentation.
Member Beahan referred to the sign's dimensions and then to the
drawing within the Boards' packets.
Vice-Chairman Lewis asked if this is the only sign for the property
and Jack Vos, sign engineer, said it is. Vice-Chairman Lewis asked if
tenants would be added to the as they moved in and that is correct.
Member Wilson motioned to open the Public Hearing, supported by
Member Casey. All in favor with none opposed, the Public Hearing was
opened.
Wayne Meulendyk, owns the building at 6701 Old 28th Street, and is
in the process of putting a sign up and has been working on it for a
year. He had to reconstruct his property in order to comply with the
Township. He approves of the site plan now that he has seen the
details.
Assistant to the Manager Otey reported that the Township did not
receive any phone calls or letters regarding the case.
Member Beahan motioned to close the Public Hearing, supported by
Member Casey. All in favor with none opposed, the Public Hearing was
closed.
Vice-Chairman Lewis noted the Applicant is correct that in some
cases the Township has changed the size of the sign in relationship to
the road, with those that are further back having larger signs and
those closer have smaller signs. In this particular case the question
seems to be where do you measure from the road itself. The Board has
heard that the KCRC does not care if the Applicant places the sign in
the proposed location but nothing formally documented.
Member Beahan asked if there would be additional signage on the
building and Representative Vriesman said there is no present signage
on the building and the tenants may want wall signage in the future.
Member Beahan asked how much they are allowed and the representative
said they would comply with what they are allowed per square footage
of road frontage.
Member Casey noted that the building has an upper level and asked
if the upper level tenants would also request signage? Assistant to
the Manager Otey said it is possible if they are along 28th Street
noting that the Applicant is allowed to have a free standing sign
along with wall signage.
Member Beahan motioned to approve the Applicant's request for a
variance as requested for the placement of a taller and larger ground
sign being placed within the proposed setback of 10-feet as requested.
Member Casey supported the motion.
Member Wilson wanted to note the uniqueness of this property since
28th Street was reconfigured and is secure in not setting precedent.
Member Beahan also believes this is the largest space created by the
reconfiguration of 28th Street.
All in favor with none opposed. Motion carried.
ARTICLE 9. Any Other Business
Vice-Chairman Lewis opened the meeting to any other business of the
ZBA.
Member Casey commented that one of the things the Township is very
involved in is the planting of landscaping and people want to protect
the green space. His concern is that the Township requires the
planting of trees but does not require the maintenance and upkeep of
them. Vice-Chairman agreed that the Township should be able to follow
through. Member Casey referred to trees at Wal-Mart and 36th Street.
Vice-Chairman Lewis suggested writing this criteria into the Master
Plan.
Assistant to the Manager Otey noted that the landscape bonds are
for the installation of the landscape and once the plantings are
installed the bond is released.
Member Wilson noted that maintenance should be implemented on the
plantings.
ARTICLE 10. Adjournment
Member Wilson supported by Member Casey moved to adjourn. The motion
carried and the meeting was adjourned at 8:58 p.m.
Respectfully submitted,
Jack Lewis, Vice-Chairman/Secretary
Lisa Hern, Recording Secretary
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