MINUTES OF THE REGULAR MEETING OF THE GEORGETOWN
CHARTER TOWNSHIP ZONING BOARD OF APPEALS
HELD DECEMBER 14, 2005
The meeting was called to order at 7:30 p.m. by
Chairman Daniel Lennington.
Members Present: Daniel
Lennington (chairman), John Fanthorpe, Carl DeVree, Greg Honderd and Joyce Weise
Members Absent: none
Others Present: Craig
Noland, Special Township Legal Council, Mannette Minier,
Secretary and Zoning
Administrator, and the applicants
#051214-01 - Approval of the
minutes
The minutes of the regular meeting held on October
26, 2005 meeting were presented.
Moved by Carl DeVree,
seconded by John Fanthorpe, to approve the minutes of the regular meetings held
on October 26, 2005, as presented.
MOTION CARRIED.
#051214-02 - (VAR0211)-Unfinished Business
Great
Lakes Society, 7277 40th Ave., is appealing the Zoning
Administrator's decision/interpretation that the proposal in the special use
permit application (SUP0204) (including subsequent submissions) is not a church
for zoning purposes, under Sec. 28.10, in a (LDR) Low Density Residential
district, on a parcel of land described as P.P. # 70-14-18-400-043, located at
7277 40th Ave., Georgetown Township, Ottawa County, Michigan.
Dan
Lennington presented the item and explained that at the October 26, 2005 ZBA
meeting, the ZBA had tentatively concurred with the zoning administrator’s
determination that the building proposed by GLS was not a church for zoning
purposes. He said that the ZBA had
fortified the record with facts and based the motion on material and competent
facts in compliance with the statements made by Judge Bosman in his
opinion.
The
chairman opened the floor to public comments.
No one was present to comment on this item. The chairman closed the floor to public
comments.
Moved by Carl DeVree, seconded by John Fanthorpe, to
approve the following resolution:
RESOLUTION ON REMAND UPHOLDING THE
INTERPRETATION/ DETERMINATION OF THE ZONING ADMINISTRATOR THAT THE
PROPOSED FACILITY BY THE GREAT LAKES SOCIETY IS NOT
A CHURCH FOR THE DEFINITIONAL PURPOSES OF THE
TOWNSHIP’S ZONING ORDINANCE
I.
A. Prior Decision Of The Township Zoning
Board Of Appeals
On April 17, 2002, Mr. John
Cheetham, Director of the Great Lakes Society (“GLS”), filed an Application
with the
B. The
Great Lakes Society’s Second Special Use Application
On February 18, 2003, GLS
filed another application for special land use approval describing the proposed
building and use as “church services and supporting ministries.” The application included floor plans prepared
by The Architectural Group dated
C. Circuit
Court Complaint Filed On Behalf Of The Great Lakes Society
On April 1, 2003, the Great Lakes Society filed a Complaint in the Ottawa County Circuit Court naming Georgetown Charter Township, the Zoning Administrator, and individual members of the Zoning Board of Appeals as defendants. The Complaint (i.e. lawsuit) included an appeal to the Circuit Court regarding the Zoning Administrator and the Zoning of Appeals’ interpretation/ determination that the Great Lakes Society’s proposed facility was not a church for the definitional purposes of the Zoning Ordinance.
D. Stipulated
Record Submitted To The Circuit Court
The Township
and the Great Lakes Society submitted to the Court a document entitled
STIPULATION REGARDING RECORD OF PROCEEDINGS AND DOCUMENTS REGARDING COMPLAINT
ALLEGATIONS (the “Stipulated Record”).
The Record of Proceedings conducted in connection with the plaintiff’s
Application for special land use approval dated April 17, 2002 are set forth in
Exhibits 1-38 of the Stipulated Record.
The Stipulated Record also referenced GLS’s second Special Use
Application dated
II.
OPINION AND ORDEROF THE OTTAWA COUNTY
CIRCUIT COURT
On June 3, 2004 the Honorable Calvin L. Bosman, Ottawa County Circuit Judge issued an Opinion and Order regarding the Great Lakes Society’s Appeal.
A. The
Limited Definitional Issue On Appeal
The Court’s Opinion and Order noted that the sole issue on the appeal portion of the lawsuit was the ZBA’s determination that the proposed building was not a church for purposes of the Zoning Ordinance. In the words of the Court:
It is important to keep in mind that the ZBA did not, in the strict sense, deny the Society’s application for a special use permit. In fact, the ZBA never considered or reviewed the Society’s application. Instead, the ZBA ruled that because the proposed building was not a ‘church,’ the Society was ineligible to apply for a special use permit. It is this decision – the ZBA’s determination that the proposed building was not a church for the purposes of the Georgetown Charter Township Zoning Ordinance – that presents the sole issue before this Court on appeal. (Opinion and Order, p 6)
B. The
Court Agreed With The Township’s Definition Of “Church” For Purposes Of The
Zoning Ordinance
The Court’s Opinion confirmed the ZBA’s interpretation of what constitutes a “church” under the Zoning Ordinance, noting:
The Township’s zoning ordinance does not define this
term. Court and counsel agree that under
Specifically, the Court focused on the definitional issue as follows:
The issue was this: what was to be the principal use of the proposed building? The principal use of a building is determined by the activities that take place inside the building. (Opinion and Order, p 9)
C. The
Court Considered Evidence Concerning The Historic Use Of The Parsonage Or
Activities Of GLS To Be “Immaterial”
The Court’s Opinion and Order concluded that factual findings pertaining to the historic use of the existing parsonage were not “material” to the issue of whether the proposed building would constitute a church under the definitional section of the Zoning Ordinance.
D. Remand
To The ZBA
In its Opinion and Order, the Court did not find that there are no material facts that exist that could support the ZBA’s decision. Rather, the Court remanded the matter to the ZBA to afford the parties “the opportunity to fortify the record with material facts.” (Opinion and Order, p 6)
III.
SCOPE
OF REMAND AND FURTHER DECISION
OF THE ZONING BOARD OF APPEALS
As noted, the Court’s Opinion and Order (p 6) identified the “sole issue” to be the ZBA’s determination that the proposed building was not a church for purposes of the Zoning Ordinance.
A. For
The Limited Purposes Of This Appeal, The ZBA Is Not Challenging GLS’s Standing
As A Religious Organization
In prior proceedings, and in the present proceeding, the ZBA has not undertaken a determination of whether the Great Lakes Society is a religious organization in general with respect to its organization and beliefs. For example, in its July 22, 2004 Resolution, under the heading “Scope Of This Decision” it was noted, “that neither the Zoning Administrator nor the ZBA has asserted that GLS is not a religion or a church with respect to an organization…. The Township is loath to examine or scrutinize the religious beliefs of others and has not done so in this case. The Township must examine the proposed use in this type of situation, not religious beliefs.” A zoning definition and determination should focus on uses and activities.
Clearly, a particular religious organization can be a church or religious denomination in general, but a particular facility or building owned or operated by such a religious organization might not be a “church” for zoning definitional purposes.
For purposes of the definitional appeal, the ZBA has not and cannot make factual findings concerning the status of the organization or beliefs of its members. Labels do not control. Zoning addresses actual uses and not beliefs, and the role of the ZBA is to focus on the definition of church recognized by the Court, and the proposed use of the facility.
B. GLS
Requested Cancellation Of The September 8, 2004 Special Hearing
Before The ZBA
In follow-up to the Court’s
Opinion and Order, the Township scheduled a continued public hearing before the
ZBA and sent out public hearing notices.
The hearing was scheduled for
IV.
SUPPLEMENTAL
RECORD
Prior to the scheduled hearing
on January 12, 2005, GLS filed a packet of documents which included GLS’s
mission articles, and member statements.
A certified court reporter prepared a transcript of the
During the hearing, reference was made to information and documentation generated by discovery in the pending lawsuit. The ZBA decided to expand the record to include the discovery materials specifically identified on pages 60-62 of the Hearing Transcript. (p 67)
At the conclusion of the hearing, GLS requested additional time to supplement the record. The ZBA agreed, and the matter was tabled. (p 68) On or about February 25, 2005, GLS filed PLAINTIFF/APPELLANT GREAT LAKES SOCIETY’S EXHIBITS SUPPLEMENTING THE STIPULATED RECORD OF EXHIBITS DATED DECEMBER 15, 2003 FILED IN OTTAWA COUNTY CIRCUIT COURT.
V.
FINDINGS
OF FACT AND CONCLUSIONS
A. The
Great Lakes Society’s Description Of The Use Of The Facility
The proposed uses of the
building was described by Mr. Cheetham in correspondence to the ZBA dated
GLS sanctuary – 2,400 sq. ft. GLS counseling – 1,600 sq. ft. GLS tape production 1,500 sq. ft. GLS ministerial training 1,800 sq. ft. GLS administration 1,200 sq. ft.
The area of designated use –
as described by Mr. Cheetham – was summarized in a table of uses (Exhibit
28). The uses are also illustrated in
the floor plan drawing (Exhibit 45). The
floorplan shows a 30’ x 32’
GLS indicted that 26 members are prepared to attend worship on Sundays.
B. Health
Ministry And Food Bank
The health and nutritional ministry was described by Mr. Cheetham in his deposition (pp 70-75). GLS operates like a food co-op (p 73). GLS obtained a license as a non-profit cooperative. On average, 12 members of GLS place orders for a variety of food and non-food products (p 75, see also Answers to Interrogatory 29). Donations are made for these products and are summarized in the Supplemental Record. For example, the health ministry donations in 2002 was $98,174.00.
Mr. Cheetham’s initial description of the proposed uses, as outlined to the ZBA in correspondence dated May 15, 2002, did not identify any area dedicated for a “health ministry” (Exhibit 14C).
In subsequent correspondence
dated
In correspondence to the ZBA
dated
GLS is not publicly listed or
advertised as a church. GLS obtained a
non-profit tax status for its “programs on health and nutrition” (Exhibit
29). The original documents submitted to
the Planning Commission noted reference to a “food bank for the chemically
sensitive or allergic members…” (
The Zoning Administrator’s
memorandum to the Planning Commission (Exhibit 20) referenced substantial truck
traffic and delivery at the existing parsonage.
This was described as daily deliveries of products and materials (see
Niezink letter – Exhibit 21) and statements of neighbors as set forth in the
minutes of the
During the ZBA hearing, Mr. Cheetham confirmed that all of the activity relating to the food ministry would occur at the proposed new building. (Hearing Transcript, p 38.) There will be up to 3 delivery trucks a week. (Hearing Transcript, pp 52-54.)
The “food bank” or health ministry was further described by Mr. Cheetham in his deposition. GLS advertises under nutritional research. This advertising is a means by which GLS acquires at least 80% of its new members (deposition, p 70).
GLS operates somewhat like a
food co-op (pp 72-73). Twelve members of
GLS take advantage of the co-op (answer to Interrogatory 29f) as do “one or two
individuals who are supporters of the church but do not attend services”
(answer to Interrogatory 29g). They fax
order requests for products, and GLS uses assumed names such as Country Oaks
Service, and Nutritional Research to purchase the products. Payment by GLS members is in the form of
donations, and in 2002, the health ministry donations were approximately $98,000.00. The product purchased by GLS includes food
and non-food items. Receipts for the
products are shown in Supplemental Exhibit L.
The health ministry products include venison patties, elk patties, goose
legs, and lamb patties from Broadleaf (a distributor from
The health ministry product activities and food bank as described by Mr. Cheetham do not constitute public worship.
C. Counseling
Ministry
There is conflicting evidence concerning the proposed use of the facility for counseling.
According to GLS, the area dedicated for counseling is approximately 1,600 sq. ft. (see Exhibit 14C). Mr. Cheetham denied that GLS charges money for counseling. (Exhibit 32, Hearing Transcript pp 23-24.)
The “GLS COUNSELING MINISTRY”
was first described by Mr. Cheetham in correspondence to the ZBA dated
GLS COUNSELING MINISTRY - Our counseling ministry is guided by Christ message in Luke 14:18 and most of our members are active in improving their spiritual and physical lives. Therefore the counseling section in the sanctuary requires meeting rooms, group conference, meeting lounge, and bathroom. We estimate this area will be about 1,600 square feet.
Information and documentation generated by court proceedings confirms that GLS and Mr. Cheetham do, in fact, charge for counseling. The evidence that GLS charges for counseling is set forth in the Affidavit of Harold DeYoung and Anna Mae DeYoung. While the GLS considered such payments to be “donations” (Hearing Transcript, p 24), the CONFIDENTIALITY AGREEMENT, DISCLAIMER, ACKNOWLEDGMENT AND RELEASE prepared by GLS confirms a commercial-type use.
Specifically, GLS utilizes a form document entitled CONFIDENTIALITY AGREEMENT, DISCLAIMER, ACKNOWLEDGMENT AND RELEASE. The terms of this Agreement indicate a commercial enterprise and not “public worship.” The form agreement utilized by GLS in its counseling includes such provisions as disclaimer of warranties, and specifically:
8. The undersigned agrees to release, hold harmless and indemnify, Great Lakes Society, Great Lakes Society for biblical research, John Anthony Cheetham, nutritional research, County Oaks Service, and their agents, employees, directors, officers, shareholders, attorneys, counselors, assistants, and persons affiliated or acting or contracting with them, and all other persons, firms and corporations from any claim arising out of personal injury, death, or property damage, including claims based upon negligence, malpractice, breach of warranty, and all other claims which result from any cause whatsoever in anyway, at anytime, and at any place.
The Affidavit of Mr. &
Mrs. DeYoung, and the related documents, are made part of these findings. If the proposed counseling ministry use is
accurately illustrated by the Affidavit, this would certainly indicate a
commercial or services type of use, and not a form of “public worship”
regardless of how that term may be defined.
D. Ministerial
Training
Mr. Cheetham’s initial description
of the proposed use of this facility outlined an area of “about 1,800 square
feet” for “ministerial training.” Mr.
Cheetham’s correspondence of
Our ministerial training program is essential for qualifying our ministers for ordination. This will require classrooms, research library, study area, exercise room, kitchen and bathroom. We estimate this area will be about 1,800 sq. ft.
Since its creation in 1974, GLS has had only two ministers, Mr. John Cheetham and Mr. Timothy DeYoung. (Hearing Transcript, p 31.) The estimated area for this use – according to Mr. Cheetham – is 1,800 sq. ft.
E. Youth
Ministry
Mr. Cheetham’s initial
description of the proposed facility to the ZBA did not identify any space or
use for a “youth ministry” (Exhibit 14C).
Mr. Cheetham’s further description presented to the ZBA by
correspondence dated
F. Other
General Characteristics and Traits
There
have been other characteristics and traits of the proposed use and facility
mentioned by both Mr.Cheetham and members of the public at the ZBA hearing and
meetings which normally (or at least, quite frequently) denote a use other than
a church. Those traits or activities
include the following:
In summary, by all outward objective
appearances, the proposed use appears commercial, fraternal, health-related
services, and product-oriented in nature, rather than predominantly public
worship. It is the ZBA’s decision that
all of the evidence, facts, and information about the proposed GLS
facility/building taken together cumulatively demonstrates that the principal
use of the proposed facility/building will not be for public worship.
VI.
DECISION
Upon consideration of the
record, the Zoning Board of Appeals hereby concludes that the principle use of
the proposed facility is not a church as that term was defined in Judge
Bosman’s Opinion and Order of
Greg
Honderd stated that the resolution was in order.
Carl
DeVree said that he has reviewed the facts again and concurs with the
resolution.
Craig
Noland, Special Township Legal Council, stated that the resolution should be
incorporated into the minutes.
Carl
DeVree, the person who made the motion, and John Fanthorpe, the person who
seconded the motion, agreed to add the wording to incorporate the resolution
into the minutes.
Dan
Lennington said that he has reviewed the resolution and believes that it
accurately represents what was discussed and the general conclusion of the ZBA
on the topic.
Yeas: Dan Lennington, Greg Honderd, Carl DeVree,
Joyce Weise, John Fanthorpe
Nays: none
MOTION CARRIED.
#051214-03 - (VAR0509)
Grace
Bible Fellowship Church, 1260 Chicago Dr., is requesting to have a church with
a lot area of 73,891 square feet, a variance of 58,229 square feet from the
132,120 square feet required in Sec. 20.4(E)(1), and to have a church parking
lot without a twenty-five foot setback and greenbelt as required in Sec.
26.3(D), in a (HS) Highway Service and (MDR) Medium Density Residential
district, on a parcel of land described as P.P. # 70-14-23-100-088, located at
1260 Chicago Dr., Georgetown Township, Ottawa County, Michigan.
Steve Witte, Nederveld
Associates, represented the applicant and presented the request. He said that Randy ZanBergen, Pioneer
Construction, was also present. He
stated the following. Two and a half
years ago the church added to the south side of the building and added
parking. Two variances were obtained
because the south side of the parcel is zoned MDR and a special use permit for
a church in MDR has size and frontage requirement which the parcel did not meet. During the process of obtaining a special use
permit, the parcels were required by the Planning Commission to be
combined. At this time the church would
like to sell the house. In order to sell
the house, two more variances are needed to further reduce the area because with
the proposed split the parcel does not meet the ordinance requirements in
square footage and to waive the 25 foot greenbelt requirement because there is
no greenbelt in this area. The two
important issues to consider are that the only reason the variances were needed
was because the southern portion of the site is located in the MDR zoning
district. The site would not change and
no improvements are proposed at this time.
The northern portion of the site is zoned HS and a church is permitted
by right with no area requirements. The
church proceeded with obtaining a special use permit rather than requesting a
rezoning to HS. The previous area
amounts had been miscalculated. The 25
foot greenbelt could be replaced with a combination of plantings if the
Planning Commission would approve it.
The church building is not located on the property zoned MHR.
Steven Witte explained the
application and described how he determined that the request met each of the
seven standards of the ordinance. He
said that the sign does not exist and they would work with the Township on the
location of the sign. He said that they
could carve the parcel to exclude the parking or that the parking spaces could
be used by the residents of the house.
He said that the property buyer will know what they are getting ahead of
time. He said that other churches do not
have split zoning. He said that they
could have requested a rezoning to HS and not gone through what they went through, although he did acknowledge that the Township would
have had to approve the rezoning.
Steve Witte said that the
second important issue to consider was that there was not proposed improvements
or changes to the site.
The zoning administrator
presented a review.
Request The applicant would like to split off a parcel of land
at the southeastern portion of the church parcel with property that contains
the house and garage along with parking places for church use. The property with the house and garage had
initially been a separate parcel that had been acquired by the church and
combined with the church property in order for the church parcel to have more
acreage to meet one of the special use permit standards for a church and for parking. The two other issues involved in the proposed
split include the fact that the church had combined the property in 2003 when a
special use permit was sought to construct a church addition. At the time in order to meet a special use
standard for the church, the parcel with the house and garage had been combined
with the church property because the church needed more acreage to meet the
special use permit standard for acreage and needed the additional area to meet
parking space requirements for the number of seats. In addition, the combination of the two
parcels was a condition of approval for the church addition.
History. Prior to 2003, the church
existed on a parcel of land in the HS district where the use of a church is
permitted by right in Sec. 16.2(A) and 15.2(D) (no special use permit is
required in the HS district, hence no specific special use standard are
required to be met). In 2003, the church
acquired additional property to the south with the house and garage (located on
12th Ave.) and expanded with a 10,800 square foot addition to the
church building as well as additional parking spaces to meet the requirements
for the additional seating.
The additional property that was acquired was located in the MDR
district and a house was located on the site.
Since a special use permit is required for a church use in the
MDR district under Sec. 19.3(A), the determination was made that a special use
permit would be required due to the fact that the parking on the additional
property in the MDR district would be used for a church use.
Therefore, the specific special use standards in Sec. 20.4(E)(1) would
also have to be met. The frontage on
Chicago Dr. is 199.17 feet and Sec. 20.4(E)(2) requires 200 feet of frontage on
a major street. A variance was obtained
for the .83 feet (see the excerpt from the ZBA meeting of June 25, 2003). In addition, a specific special use standard
requires that the site have a minimum of two acres plus an additional 15,000 square
feet for each one hundred seating capacity or fraction thereof in excess of the
first one hundred. A variance was
obtained for the church to have a lot
area of 89,661 square feet, a variance of 42,459 square feet from the minimum
lot area of 132,120 required in Sec. 20.4(E)(1) for a special use permit for a
church in a residential district.
After the variances were obtained, the applicants sought a special use
permit for a church. The site plan
presented showed parking spaces on the newly acquired parcel and there was
discussion about the use of the remaining house on the new parcel. The applicants indicated, as noted in the
Planning Commission minutes of July 2, 2003, that the house would remain and be
used by the church either as a parsonage or as a place to house
missionaries. The special use permit and site plan were approved with the condition
that the parcels be combined.
Sec. 26.3(D) requires that a 25 foot greenbelt be installed adjacent to
a parking lot which adjoins a residential district. The property to the south of this church site
is in a residential district. Therefore,
a greenbelt was shown and installed along the southern property line for the
distance of the parking spaces, but ends at the spot where the garage and house
are located. The reason it ends by the
house and garage is because the house and garage separate the parking spaces
(to the north of the house and garage) from the residential district to the
south and no greenbelt is required to screen the house and garage (on the
church property) from the adjacent residential district to the south. However, if the property with the house and
garage were to be split from the church parcel, the 25 foot greenbelt would be
required to be installed between the house and the eleven parking spaces to the
north of the house as well as between the garage and the parking to the west of
the garage.
Therefore, the applicants have requested a variance to have a church
parcel with less than the acreage required by the special use permit standard
(actually still less than had previously been approved by the variance granted
in 2003). In addition, in order to split
the property, they have requested to not have the greenbelt between the house
and garage and the eleven parking spaces to the north, and between the garage
and parking to the west.
The use of the house and
garage is one principal use, specifically a residential use. Sec. 2.1a defines an accessory use as “A use
naturally and normally incidental and subordinate to, and devoted exclusively
to the main use of the land or building.”
The use of the parking spaces would NOT be considered to be an accessory
use to the residential use. Nor would
the use of parking for the church be considered to be part of the principal use
consisting of the residential use of the house.
The parking spaces would become a second principal use on the site and
two principal uses are not permitted.
The
chairman opened the public hearing.
Gerry
Snyder, 6863 12th Ave., said that she lives south of the church and asked
about the greenbelt.
The
applicant explained that there would be no improvements and no change to what
currently exists.
Gerry
Snyder asked if the current trees would remain and was told yes.
The
chairman closed the public hearing.
Joyce
Weise asked why the church had to sell the house.
Steve
Witte said that he was not sure of the reason, but it could be the upkeep of
the house. He said that it had been the
original intention to use the house for a parsonage or to house missionaries. He said that the church may want to sell it
for monetary reasons, though he knows that monetary reasons are not grounds for
a variance. He said that the site is not
being used as it could be used.
Randy
ZanBergen, Pioneer Construction and a member of the church, said that the
church had wanted the land behind the house for additional parking and the
house owners wanted to sell the whole site.
He said that the church has no need to house missionaries and has found
a buyer.
Joyce
Weise asked if the perspective buyers intended to live in the house or to rent
it and was told they intended to live there.
Greg
Honderd asked if the church needed the 11 spaces to meet their requirements.
Steve
Witte said that they needed 92 and have 97, so six of the 11 were needed.
Greg
Honderd said that the Planning Commission looked at the use of the house and
considered that it would be a parsonage to meet the ordinance
requirements. He asked why the church
initially had presented the proposal as they did.
Steve
Witte said that the church had been interested in the back half of the parcel
and he did not know what the outcome would have been if the church had only
purchased the back part of the parcel.
Dan
Lennington clarified that the parking on the site created two principal uses
and resulted in the fact that standard 2 was not met.
John
Fanthorpe said that he has lived along church property and sharing parking does
not work. He said that he could tell
that from experience because he lived in three houses that adjoined churches.
Steve
Witte said that the line for the parcel could be moved to take care of this
issue and that there was no room to relocate the parking because the site was
maxed out.
John
Fanthorpe said that realistically they needed to have the greenspace buffer.
Joyce
Weise asked if they could eliminate seven parking spaces.
Steve
Witte said that the Planning Commission could approve a fence.
Dan
Lennington said that he understood that there was the split zoning issue and no
changes were proposed for the site but he was against granting the variance
because combining the parcels had been a condition imposed by the Planning
Commission. He said that they did not
know what would happen to the special use permit if that condition was
violated. He said that they need to have
a rezoning. He said that he does not
want the ZBA to step on the toes of the appropriate Boards and Commissions who
are the experts in zoning. He said that
it was the ZBA’s job to interpret the zoning ordinance. He said that these were very large variance
requests and the second point was the split use problem on the residential site
that they could not get around. He said
that the third problem was the required greenbelt and the church had no
argument other than they just did not want to have it.
Steve
Witte said that this application was with the understanding that the church
would have to go back to the Planning Commission and the Township Board for
special use approval again. He said that
the use is not changing and the split use is a problem that they could get
around. He said that they could come
back and cut out a piece if they could satisfy the 25 foot greenbelt
requirement. He said that it was at the
Planning Commission’s discretion and the greenbelt was to protect the property
owner, which is the church itself.
Dan
Lennington said that the parcels were combined as a condition of the special
use permit approval.
Steve
Witte said that the use of the site was not changing and the ZBA could grant
the variance prior to the church going back to the Board.
Joyce
Weise said that the parcel should be rezoned to address these issues.
Steve
Witte said that the church had pursued this avenue rather than seeking the
zoning because this zoning district was less dense. He said that they did not request a rezoning
because if the church would sell, auto repair could go into a HS site.
Carl
DeVree said that a lot of variances were needed by the church.
Dan
Lennington said that the variances were large amounts, too.
Steve
Witte said that it was 15,000 more than needed.
Dan
Lennington said that it was still 42,459 square feet.
Greg
Honderd said that they would need less if they moved the lot line.
Steve
Witte said that the amount previously proposed was within 2,000 square feet of
each other.
Moved by Greg
Honderd, seconded by Carl DeVree, to deny Variance (VAR0509)
for Grace Bible Fellowship Church, 1260 Chicago Dr., because the request does
not met the standards of the ordinance.
Steve Witte said that even if the
parcel were to be rezoned to HS, they still would have the issue of the 25 foot
greenbelt.
Joyce Weise said that they can’t
achieve screening and it could be explained to a potential buyer.
Dan Lennington said that the use
of the property will not change and the special use permit given by the
Township stated that they could have the use of the church with the condition
that the parcels be combined. He said
that he does not know if the variance were to be granted if that would
invalidate the special use permit. He
said that these were big variances and there were no extraordinary
circumstances.
Joyce Weise said that the
Township must take care to have the best possible viable site for the Township
and for property owners and there were so many differences requested with the
variances.
Steve Witte said that if the ZBA
denied the variance for the area and approved the variance for the greenbelt,
the Planning Commission may suggest alternatives.
Dan Lennington said that certain
boards were responsible for certain things.
Joyce Weise said that if the
church goes to the Planning Commission, Greg Honderd could tell them what was
said at the ZBA.
Greg Honderd said that he could
appreciate that the church was not in the rental house business. He said that although owning the lot
presented maintenance issues now, it may be in the best interest of the church
to hold on to the site for future possible expansion additions or parking
additions. He said that he is not
convinced that in the long run it would be worthwhile to grant the variances.
Dan Lennington said that they
applied for the variances and the ZBA should act on both. He said that he thinks that both should be
denied.
Greg Honderd said that he thought
the variances should be take one at a time.
He clarified the previous motion to include only the square footage. He clarified the motion, with Carl DeVree’s concurrence, to be worded as follows:
Moved by
Greg Honderd, seconded by Carl DeVree, to deny Variance (VAR0509)
for Grace Bible Fellowship Church, 1260 Chicago Dr., to have a church with a
lot area of 73,891 square feet, a variance of 58,229 (or less) square feet from
the 132,120 (or less) square feet required in Sec. 20.4(E)(1), in a (HS)
Highway Service and (MDR) Medium Density Residential district, on a parcel of
land described as P.P. # 70-14-23-100-088, located at 1260 Chicago Dr.,
Georgetown Township, Ottawa County, Michigan because the request does not met
the standards of the ordinance.
MOTION CARRIED.
Moved by Joyce
Weise, seconded by John Fanthorpe, to table Variance (VAR0509)
for Grace Bible Fellowship Church, 1260 Chicago Dr., to have a church parking
lot without a twenty-five foot setback and greenbelt as required in Sec.
26.3(D), in a (HS) Highway Service and (MDR) Medium Density Residential
district, on a parcel of land described as P.P. # 70-14-23-100-088, located at
1260 Chicago Dr., Georgetown Township, Ottawa County, Michigan until the
Planning Commission can look at the site.
Yeas: Joyce Weise, John Fanthorpe
Nays: Greg Honderd, Dan Lennington, Carl DeVree
MOTION DENIED.
Dan
Lennington said that they should deny both variances and that both variances
should be acted upon because they were requested.
Moved by Greg
Honderd, seconded by Carl DeVree, to deny Variance (VAR0509)
for Grace Bible Fellowship Church, 1260 Chicago Dr., to have a church parking
lot without a twenty-five foot setback and greenbelt as required in Sec.
26.3(D), in a (HS) Highway Service and (MDR) Medium Density Residential
district, on a parcel of land described as P.P. # 70-14-23-100-088, located at
1260 Chicago Dr., Georgetown Township, Ottawa County, Michigan because the
request does not meet the standards of the ordinance.
Yeas: Greg Honderd, Dan Lennington, Carl DeVree
Nays: Joyce Weise, John Fanthorpe
MOTION CARRIED.
#051214-04 - (VAR0510)
Tracy
DuBois/Joan DuBois, 2780 11 Mile Rd. Rockford and 62 Mill Ave., are appealing
the Zoning Administrator’s decision/interpretation under Sec. 28.10 that a
non-conforming structure located at 62 Mill Ave. was damaged by fire more than
50% of the fair valuation of the entire building or structure at the time such
damage occurred under Sec. 27.4, in a (I) Industrial district, on a parcel of
land described as P.P. # 70-14-13-428-005, located at 62 Mill Ave., Georgetown
Township, Ottawa County, Michigan.
Randy DuBois and Tracy DuBois
represented the applicant and presented the request. They stated the following. The Township established the repairs to the
house to be greater than 50% of the value of the structure and denied
rebuilding. Their argument was that many
mistakes were made and they were asking for a reassessed value. The structure is a three family dwelling and
the $63,000 value was a mistake.
Randy DuBois said the
following. On page 9 of the itemized
summary from AAA Insurance, there were many mistakes including the listing of
$450 for the removal of the bathtub and removal of 12 inch insulation in the
ceiling because neither exited. The
demolition amount of $1,000 is not necessary because the structure is sound and
they have removed the unsafe debris. They
will use their own dumpster and not have contractor overhead. The summary is full of errors in quoting
amounts such as removing the vinyl flooring.
The $70,000 value is a mistake because they have been in since 1959 and
if a person is in a structure for a long time the value is not correct. The assessor used the assessed value and is
way off. The appraised value they
obtained was for $99,000 for just the house.
(He submitted information to the ZBA.)
In the early 60’s he helped his father with the house. This was a hotel in Jenison in 1860 and still
remains. Very little was destroyed. If they fixed it themselves like they did
before, they could do a better job. He
could do the work for $9,600 and get a licensed contractor for the
electrical. (He supplied pictures after
the quote.) The pictures show the
removal of the charred debris. The fire
did not make it through the plywood. After
tearing down the debris, they found the area above the ceiling tiles
untouched. The plywood saved the
walls. They would just have to put up
drywall. The wood is good and not a
single board needs to be replaced internally.
They had a construction company give a quote that the cost to repair the
structure was $30,000. With the house
being worth $100,000 as they supplied on the appraisal, the $30,000 is below
the threshold of the 50%. They were
asking for a re-evaluation.
The zoning administrator
asked if they had called AAA Insurance Company and told them that their summary
and payment were incorrect.
The applicant said that they
did not have time because the meeting was today and they just got the
information today.
The zoning administrator
presented a review. A fire occurred at
62 Mill Ave. on July 10, 2005. The
structure was built in the 1970’s and was being used as a three family
dwelling. The structure is
non-conforming and the use of residential is non-conforming since the lot is
located in the Industrial district and residential uses are not permitted. Sec. 27.4 states that nothing in the
ordinance shall prevent the reconstruction, repair or restoration and the
continued use of any non-conforming building or structure damaged by fire
wherein the expense of such reconstruction does not exceed fifty (50) percent
of the fair valuation of the entire building or structure at the time such
damage occurred. After the fire
occurred, the Township Assessor was asked to provide a fair valuation of the
entire structure at the time the damage occurred. The Assessor said that the house and garage
in combination had a fair valuation of $84,869 and the house by itself had a
fair valuation of $70,282. However,
after revisiting the issue, the Assessor has determined that the garage
structure has no separate independent value in and of itself. Therefore,
the Assessor has revised the fair valuation of the structure to $84,869. Further, if the fair valuation of the
structure is $84,869 and the damage is $63,722.71 (as determined by the
property owner’s insurance company), the damage would be 75.08%, well over the
50% amount. In addition, the
Township Building Official visited the site said that the expense of
reconstruction, repair and/or restoration would be more than half of the fair
valuation of the structure. The Township
obtained a copy of the Adjuster Summary from AAA Insurance Co. and the amount
of damage was stated as $63,722.71, which would greatly exceed 50% of the value
of the structure.
Carl DeVree said that they
could have called the insurance company today and he asked if they would accept
the amount from the insurance company that they determined the damage to be
rather than the higher amount stated by the insurance company.
Dan Lennington asked about
the value amount that the Township calculated.
The zoning administrator
stated that she had obtained the value of the structure from the assessor and
that the amount was $84,869 rather than the $70,282 that he initially stated
because he found that the garage structure had no value independent from the
house structure. She said that she had
not been aware that the applicants were disputing their own insurance company’s
monetary amount of damage and saying that the damage was less than AAA’s total
on the summary.
Casey DuBois, 112 Baldwin
St., said that his house was 115 years old and about two and a half years ago
his house appraised for $110,000. He
said that his house was smaller and his opinion was that the Township’s
valuation was underestimated. He said
that he looked at the fire damage and it was only about 30% which is less than
half the value of the structure.
The chairman closed the floor
to public comments.
Dan Lennington said that the
biggest dispute appears to be over the repair costs. He said that the assessed valuation seems to
be calculated by the assessor as two times the SEV (state equalized
value). He said that the appraisal is
$110,000 and this appraisal is more credible.
Randy DuBois said that the
appraiser compared this structure to similar structures in Grand Rapids on
Broadway and Hamilton Streets and that everyone knows that structures are worth
at least 10% to 20% more in Jenison.
Dan Lennington clarified that
the insurance company figured it would take $63,000 to fix the house.
John Fanthorpe asked how much
the structure was insured for.
The applicant said that it
was insured for $210,000. He said that
the insurance company’s summary of the damage was riddled with errors.
Dan Lennington asked if the
errors were greater than $30,000.
Randy DuBois said that yes,
there was more than $30,000 in errors.
He said that the insurance company included an amount in the summary to
remove a bathtub and there was no bathtub in the bathroom. He said that the insurance company included
an amount in the summary to remove insulation from the ceiling and there was no
insulation in the ceiling. (Pictures
were shown demonstrating the applicant’s statements). He said that he could fix the house for about
$6,900.
Carl DeVree asked if they
would accept $6,900 from the insurance company to fix the house.
Randy DuBois said that the
expense summary from the insurance company was riddled with mistakes and that
they had ripped off the debris and was no insulation in the ceiling.
Dan Lennington asked what was
wrong with the insurance company’s summary.
Randy DuBois said that an
amount was listed to fix the entry way and there had been no damage to the
entry way. He said that amounts were
listed to repair the kitchen and living room and that no damage had occurred
there.
Joyce Weise said that
realistically they would have to hire a contractor to do the repair.
John Fanthorpe said that the
insurance company was not going to pay a non-licensed contractor to do work of
this extend.
Dan Lennington said that it
is a criminal offense to have an unlicensed contractor do the work.
Randy DuBois said that a
member of the immediate family can do the work.
There was discussion
regarding the insurance company’s summary of damage and each line item was
discussed, with the applicant stating that many items listed on the summary
were incorrect and listed wrong with much higher amounts than needed to fix the
damage. He said that the correct amount
of damage was much less than listed by the insurance company because of all the
errors.
Dan Lennington said that it
would be a good idea to give this criticism to the insurance company adjustor
because something has gone awry.
Randy DuBois said that he has
looked at the house himself to see if there was $63,000 in repairs.
Dan Lennington said that they
need more information.
Joyce Weise said that there
were different amounts and not enough information from the insurance
company. She asked how the insurance
adjustor prepared his evaluation.
Randy DuBois said that the
adjustor just walked through the house.
John Fanthorpe said that he
has 22 years experience in the insurance business and that a three family
dwelling could not be built for under $100,000.
He said that he had not seen the house prior to the fire, but did drive
by after the fire without going inside.
He said that many times after fire damage a house would have to be
stripped to the studs because the smoke damage would not come out. He said that it often has to be replaced to
be livable. He asked about the three
units.
Randy DuBois said that the
front two apartments were not touched by the fire.
John Fanthorpe said that the
assessor uses square footage to calculate costs, just like a realtor, and the
estimate is based on construction style.
He said that the value of the building was closer to $200,000 than the
assessed value and that the repair costs were less than half the value of the
house. He advised against doing the work
themselves because they might not be covered.
He said that they should have contractors having seen the home after the
fire and in pictures. He said that he is
not an adjustor but he does figure out value in the first place. He said that he is not convinces that either
value is entirely accurate. He said that
if the insurance company’s estimate of repairs was compared to the insurance
company’s insured value, the repairs would be less than the value of the
structure.
Randy DuBois said that they
just want to repair the structure and to rent out the additional spots. He said that not one single support board was
damaged.
Greg Honderd asked how
accurate insurance adjustors were because normally people complain the other
way that they don’t receive enough money to cover the damage.
John Fanthorpe said that
sometimes the adjustment figures are padded.
He said that for instance, a house could not be built today without insulation
and two by sixes are not even made any more.
He said that the structure was originally constructed and reinforced
back in the 1960’s. He said that the
water damage concerns him because it soaks in.
Greg Honderd asked how
accurate the information was from the insurance company.
John Fanthorpe said that it
should be fairly accurate because they are educated and there are all sorts of
policies.
Greg Honderd said that the
insurance company generally takes pictures to see if it is worth the estimated
amount.
Greg Honderd asked how much
the units were rented for each month, if they were rented for about $400.
The applicant said that she
rents to friends and each spot for $250, so about $450 total.
Greg Honderd asked about the
square footage and was told the amount was 1400 square feet with three bedrooms
as listed on the assessing card. He said
that some of the value was as income property.
The applicant said that she
was not charging market value for rent.
Joyce Weise asked the zoning
administrator how she had derived her calculations.
The zoning administrator said
that she obtained a value of the structure from the Township assessor and the
Building Official provided the information that the structure was more than 50%
damaged.
Dan Lennington clarified that
the Township had not obtained an appraisal.
John Fanthorpe said that
normally the assessed value is less than one half the cost to replace the
house. He said that the house is worth
between $150,000 to $200,000.
Moved by Greg Honderd, seconded by Joyce Weise, to not concur
with the zoning administrator’s determination that the damage to the structure
is more than 50% of the fair valuation of the structure at the time the damage
occurred. This determination is based on
the following findings of fact:
1. The fair valuation of
the house is at lease $140,000, as evidenced by the willingness of the
insurance company to insure the house for more than $140,000;
2. The amount of damage is
$64,000, as evidenced by information provided by the insurance company; and
3. Therefore, the amount
of damage to the house is less than 50% of the fair valuation of the structure
at the time the damage occurred.
John Fanthorpe said that this
was based on the willingness of the insurance company to insure the structure
for $210,000. He said that the
assessor’s calculation is off because this is income property and the
evaluation should be judged by the income.
Yeas: Daniel Lennington, John Fanthorpe, Joyce Weise, Carl
DeVree, Greg Honderd
Nays: none
MOTION CARRIED.
#051214-05 - (VAR0512)
Champion
LLC, 4433 Byron Center Ave, is appealing the Zoning Administrator’s
decision/interpretation under Sec. 28.10 that dry sewer-mains do not fulfill
the requirement of installed sewer under Chapter 24, footnote (e) and (f), in
an (LMR) Low/Medium density residential district, on parcels of land described
as P.P. # 70-14-18-300-021 & -022, located at 7448 48th Ave. and
4724 Baldwin St., Georgetown Township, Ottawa County, Michigan.
Steve Smit, Focus
Engineering, represented the applicants and presented the request.
Dan Lennington asked if the
applicant was considering the construction of two-family dwellings and was told
no.
The zoning administrator
presented a review and said that she basically made the determination that
sewer was required because that was the wording of the ordinance. The summary is as follows. The applicant submitted an application to the
Planning Commission to rezone property from (RR) Rural Residential and (LDR)
Low Density Residential to (LMR) Low/Medium Residential. At issue is the fact that sewer is required
by the ordinance for all lots in the LMR district and sewer is not available to
service the subject property. In fact,
sewer will not be available to service the property at any time in the near
future, according to the Director of Public Works. At the Planning Commission work session, the
Planning Commission directed the applicant to appeal the determination of the
Zoning Administrator that dry sewer does not fulfill the requirement of sewer
to the ZBA because he did not agree with the zoning administrator’s
interpretation and the Planning Commission did not want to rezone property to
create non-conforming lots. The Schedule
of District Regulations, Chapter 24, lists two footnotes for lots in the LMR
district for lot area, footnote (e) and (f).
(e) All lots
shall be serviced by public water and sanitary sewer.
(f) All two
family dwelling structures shall have a minimum lot area of fifteen thousand
(15,000) square feet and a minimum lot width of one hundred twenty (120) feet,
provided when public water and sanitary sewer are available (installation of
dry sewer mains fulfills this obligation on installed sewer) the minimum
frontage requirement is reduced to one hundred (100) feet and the lot area is
reduced to fourteen thousand (14,000) square feet.
Footnote (f) is a moot point
because two family dwellings ARE NOT PERMITTED and have not been permitted in
the LMR district for at least the last ten years. Another point is that footnote (d) is listed
for LDR lots.
(d) Lots not
serviced by public water and sanitary sewer (installation of dry sewer-mains
fulfills the requirements of installed sewer) shall have a minimum size of
thirteen thousand three hundred (13,300) square feet and a minimum width of
ninety five (95) feet.
Dan Lennington said that the
ordinance states two family dwellings with 15,000 square feet and a width of
120 feet can meet the sewer requirement with dry sewer, but the dry sewer
allowance cannot be uncoupled from the stipulation of a two family
dwelling. He said that the installation
of dry sewer does not fulfill the requirement of sewer for all dwellings. He said that it was evident from reading the
plain text. He said that he can see the
applicant’s argument, but reaches a different conclusion.
The applicant said his
interpretation was obtained from looking at the footnote and that he thinks the
intention of the ordinance was that the text would have been bulky and should
be cross-referenced. He said that it was
a logical conclusion that if dry sewer was appropriate for two family dwellings
that it extended to include one family dwelling units.
Dan Lennington said that he
understood that the applicant interpreted footnote (f) to extend to include
footnote (e).
The applicant said that he
understands that footnote (f) does not apply to LMR because two family
dwellings are not permitted.
Dan Lennington said that the
ordinance could have said it more simply.
The applicant said that in
the LDR zoning district, 11,475 square foot lots were permitted with sewer and
dry sewer fulfilled the requirement. He
said that the state ordinance supersedes the Township ordinance and if the
Health Department finds a lot insufficient, they will drive up the square
footage. He said that it was intended to
be handled by the Health Department.
Joyce Weise asked if the lots
could be developed as LDR lots.
The zoning administrator said
that this site could be developed with lots in the LDR zoning district because dry
sewer fulfills the requirement of sewer according to the ordinance.
Joyce Weise asked if they
would catch the storm water and if the site would have to be serviced with
septic systems.
The applicant said that there
would have to be dry sewer and septic systems, and that they would catch 100%
of the storm water. He said that they
were obligated to build the drain fields.
Greg Honderd said that he
would provide background on the ideas of the Planning Commission when the
ordinance was adopted. He said that the
original ideal was to have a zone that allowed smaller more affordable lots
with smaller houses. He said that there
were some successful LMR areas in the Township and they worked well for both
the Township and developers. He said
that when the ordinance was written, he thought the intention of the Planning
Commission to add the requirement of sanitary sewer was because the lots would
be so small that sewer would be necessary and septic fields would not fit. He said that to allow the dry sewer to
fulfill the requirement of sanitary sewer service defeats the purpose of LMR
lots with the minimum requirements of less frontage,
less lot area, and less expensive housing.
He said that there was supposed to be a cost savings, along with more
affordable housing. He said that if dry
sewer was allowed to fulfill the requirement of sanitary sewer, they would not
be taking advantage of the smaller lots to be more affordable because people
would have to pay for both the sewer and septic systems and when sewer becomes
available, the people would have to pay for the hook-up fees. He said that the zone was intended to be more
efficient rather than making people pay two times for private septic systems
and for sewer. He said that in turn, the
people would be forced to pay to hook up to sewer when it is available after
they paid for the septic systems. He
said that this was not in the spirit of the ordinance and not the intention of
the Planning Commission when the ordinance was adopted. He said that these were the reasons that sewer
was required in the LMR district.
Joyce Weise asked if any
development could take place.
Greg Honderd said that yes,
the site could be developed in the LDR zoning district, with 85 foot lots and
more room for the drain fields and still have the reserve system.
Joyce Weise said that
reducing the number of lots would make the lots the right size.
The applicant said that this
piece is unusual because the width from east to west does not lend itself to
two streets. He said that the cost of
development is based on how much street there is. He said that to keep costs down for each lot,
they had to make the lots narrow. He
said that the State Act in effect since 1967 allows a minimum width of 60 feet
for lots without sewer and requires 12,000 square feet in area.
Joyce Weise asked if the
development was not affordable if the lot sizes weren’t reduced.
The applicant said that to
build more expensive homes at this location does not justify costs because this
is close to a campground.
Joyce Weise said that Chateau
West was close to this location with more expensive homes.
The applicant said that the
Planning Commission thought that LMR uses were appropriate at this location but
did not know how to approve it while meeting the ordinance. He said that if this did not work, he was
going to ask for a text amendment to the ordinance to allow the installation of
dry sewer to fulfill the requirement of sewer in the LMR district.
Dan Lennington said that the
only way to use footnote (f) was in reference to two family dwellings and the
language of the ordinance requires that there be no other reading of this
wording. He said that the zoning
administrator made the logical decision.
Moved by Carl DeVree, seconded by Joyce Weise, to concur with the
Zoning Administrator’s determination that the ordinance requires sewer in LMR
lots and that the installation of dry sewer does not fulfill the requirement
for sewer in the LMR lots. This
determination is based on the following findings of fact: this interpretation
is consistent with the language of the footnotes in the zoning ordinance.
MOTION CARRIED.
#051214-06 – Adjournment
The meeting was adjourned at 9:40 p.m.
[1] On