ZBA minutes 7-25-07

MINUTES OF THE REGULAR MEETING OF THE GEORGETOWN CHARTER TOWNSHIP ZONING BOARD OF APPEALS HELD JULY 25, 2007

The meeting was called to order at 7:30 p.m. by Vice Chairman John Fanthorpe.

Members Present: John Fanthorpe, Greg Honderd, Stanley Sterk and Carl DeVree

Members Absent: Joyce Weise

Others Present: Mannette Minier, Secretary and Zoning Administrator, and the applicants

Note: Daniel Lennington resigned and Stanley Sterk was appointed on 7-23-07

#070725-01 - Approval of the minutes

The minutes of the regular meeting held on May 23, 2007 were presented.

Moved by Greg Honderd, seconded by Carl DeVree, to approve the minutes of the regular meeting held on May 23, 2007, as presented.

MOTION CARRIED.

#070725-02 – Election of Officers

Current officers are: Dan Lennington, chairman; John Fanthorpe, vice-chairman; and Joyce Weise, secretary. Since Dan Lennington has resigned his position on the ZBA, Stanley Sterk, a Township Board member, was appointed to the ZBA.

Moved by Carl DeVree, seconded by Stanley Sterk, to appoint the following to offices on the ZBA: Joyce Weise as chairman of the ZBA; John Fanthorpe as Vice Chairman, and Carl DeVree as secretary.

Moved by Stanley Sterk, seconded by Greg Honderd, to table the motion because Joyce Weise was not present to accept the nomination.

MOTION CARRIED.

#070725-03 – (VAR0704)

Don Johnson, 5101 Kenowa, is appealing the zoning administrator’s determination concerning the enforcement of the provisions of the Zoning Ordinance under Sec. 28.11(A) and/or is requesting to have two accessory buildings, a variance of one from maximum of one accessory building permitted in Sec. 3.4(I) and/or is requesting to locate an accessory building in the front yard, a variance from Sec. 3.4(A) which states accessory buildings and uses shall not be erected in any front yard and a variance from Sec. 3.4(F) which states that in residential districts a detached accessory building shall be located in the rear yard or non-required side yard, in a (RR) Rural Residential district, on parcels of land described as P.P. # 70-14-36-440-000, -001 and -002, located at 5101 and 5105 Kenowa Ave., Georgetown Township, Ottawa County, Michigan.

The zoning administrator presented a review for the appeal as follows:

REQUEST

Due to unique circumstances relating to the development of the property, a ruling from the ZBA is necessary in regards to the zoning administrator’s determination for administering Township ordinances for the site. The unusual history of development has lead to complicated circumstances in administering the provisions of the ordinance. A ruling from the ZBA will aid in current, as well as future, construction and development of the site. In addition, if the ZBA concurs with the zoning administrator’s determination, variances are requested to permit the second accessory building to remain in the front yard. A new accessory building is being constructed in the rear yard of 5101 Kenowa Ave. and the applicant was informed that the existing accessory building in the front yard must be removed since the ordinance only allows one accessory building and requires that accessory buildings and uses be located in the rear or non-required side yard. Rather than remove the existing accessory building, the applicant has appealed the zoning administrator’s determination and has applied for a variance to allow the second accessory building to remain in the front yard. Sec. 3.4(I) states that only one accessory building is permitted per parcel. Sec. 3.4(A) states that accessory buildings must be located in the rear yard (or non-required side yard) in a residential district.

SUMMARY

There are two components to the request: 1) the appeal of the zoning administrator’s determination; and 2) the variance request to permit the second accessory building to remain. Depending on the outcome of the appeal deliberation, the ZBA should consider the variance requests to allow the second accessory building to remain in the front yard. The appeal should be considered first because if the ZBA should decide not to concur with the zoning administrator’s determination and change this determination, the variance requests might not be necessary.

The attached review contains information regarding the appeal and consideration of the seven standards required in Sec. 27.11(C) to be met in order for a variance to be granted.

Points to consider:

· While the parcel itself is not different from the surrounding parcels in the area, the exceptional and unique circumstances are related to the situation under which the site was developed.

· Although there are appears to be no practical difficulties to prevent the removal of the existing accessory building in the front yard, the unusual circumstances are related to history of the development.

· The applicant sought approvals from the Township to develop the site through various application processes and finally received the approval from a Township representative who was a zoning administrator/building inspector in early 2000.

· Based on that approval from the Township, the applicant in good faith developed the site as it exists today with the belief that the two single family dwellings and accessory buildings, along with the accessory building in the front yard, met Township ordinances.

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HISTORY

In the spring of 2007, Georgetown Township became aware of various zoning issues pertaining to the properties located at 5101 and 5105 Kenowa Ave. at the time an inspection was conducted for the construction of an accessory building. The situation as it appears is as follows:

· The property was developed as a site condo without site plan approval as required in Sec. 19.2(C);

· Two houses were constructed on one parcel as site condos;

· A new accessory building is being constructed at 5101 Kenowa Ave. and an accessory building already exists in front of the house with this address (though according to the unapproved site plan for the site condo, the accessory building is located on the common area);

· Direction was given to the applicant to remove the existing accessory building that is located in front of 5101 Kenowa Ave.

Investigation into the situation revealed the following historical information:

1980

The first house was constructed on a parcel described as P.P. # 70-14-36-400-019, located at 5101 Kenowa Ave. As far as can be determined, this construction complied with the Township Zoning Ordinance and Building Code.

1988

A variance was requested in August 1988 for P.P. # 70-14-36-400-019, located 5101 Kenowa Ave., to split the 330 foot wide parcel to create two parcels that did not meet the 200 foot minimum width requirement in Chapter 24 for the Rural Residential district. At the August 24, 1988 ZBA meeting, the variance was denied. Therefore, the parcel was required to remain as one and only one house was allowed to be constructed on the parcel since Sec. 3.18 allows only one principle building on a parcel.

1999

An application for a private street on P.P. # 70-14-36-400-019, located at 5101 Kenowa Ave., was submitted to the Township and was considered by the Planning Commission at the June 2, 1999, June 16, 1999 and July 7, 1999 meetings. The plan showed a private street along one of the property lines with the parcel split into five parcels having access to the private street. At the July 7, 1999 meeting, the Planning Commission recommended to the Township Board to deny the request. The reasons for a recommendation of denial were as follows: 1) the intention of the private street ordinance was to provide for the development of unique pieces of property and there was nothing unique with this piece other than trees; 2) the request was not consistent with the intention of the private street ordinance specifically related to Sec. 3.26(A)(2) which states that “the proposed private streets will not adversely affect the long term development policies of Georgetown Charter Township,” and to approve it would set a precedent. The reasons that were mentioned at the meeting included the fact that the Township did not want a series of independent “bowling alley” streets that did not interconnect, but rather the Township’s development policy was for plats, streets and developments to interconnect. At the July 12, 1999 meeting, the Township Board denied the private street request and the minutes noted the Planning Commission’s reasons for denial. Therefore, the parcel was required to remain as one and only one house was allowed to be constructed on the parcel since Sec. 3.18 allows only one principle building on a parcel.

2000

In January 2000, Jeffrey Ammon, attorney representing Don Johnson Construction, requested that the Township Board reconsider the private street application denial.

The following is an excerpt from the January 10, 2000 meeting where the motion was approved to reaffirm the previous denial:

“Moved by Henry Hilbrand, seconded by James Holtvluwer, to make specific findings of fact regarding the private street meeting the approval standards in Section 3.26(G)(1) in the Zoning Ordinance, and for the following reasons the Board determines that:

A. The proposed private street will be detrimental to the public health, safety or general welfare because the development of a cul-de-sac street without connecting to other streets would not serve the long-range development goals for the Township.

B. That the proposed private street will adversely affect the use of land since it does not serve the best interest for future development of the Township.

C. That the private street is designed and will be constructed with width, surface and grade to ensure safe passage and maneuverability of private and safety vehicles since the revised plan met the design standards of the Zoning Ordinance, Section 3.26(F).

D. That the private street will be constructed so as to protect against or minimize soil erosion and prevent damage to the lakes, streams, wetlands, and natural environment of the Township since the site is flat and there are no streams or wetlands on or near the parcel.

E. That it will be practical to construct a public street by reason of steep slopes, excessive cul-de-sac length or other non-financial constraints since the site is flat and free of any constraints that would unnecessarily inhibit the construction of a public street.

Therefore, it is further moved to reaffirm the previous denial because the request does not meet the approval standards of A., B., and E.

Note1: The attorney gave the opinion that the Board may not approve the request

unless all of the approval standards are determined to be true.”

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Therefore, the parcel was required to remain as one and only one house was allowed to be constructed on the parcel since Sec. 3.18 allows only one principle building on a parcel.

2000

On April 25, 2000, Bob Mickevicus, former Township building inspector and zoning administrator, approved and issued a building permit for a second house to be constructed on P.P. # 70-14-36-400-019 (contrary to the previous decisions of the Zoning Board of Appeals, Planning Commission and Township Board). No site plan had been approved by the Planning Commission for a site condo to be developed on the property nor was a private street approved (even though one driveway was shown on the plan to be constructed with connections to both houses and providing one access to the street which meets the definition of a private street). There is no documentation as to why the former building inspector/zoning administrator approved the building permit nor is there any documentation as to how he made the determination that the building permit application for the second house complied with Township ordinances and complied with previous decisions of the Zoning Board of Appeals, Planning Commission and Township Board since no site plan approval had been given as required in Sec. 19.2(C).

The two houses, each noted on the site plan submitted with the building permit application to be located on 145 by 307.5 foot units of property within the single parcel (and are each site condo units), were recorded as condominiums and the property areas with the houses are shown on a drawing created by Focus Engineering dated 7-25-00 (which incorrectly lists the property as situated in Cannon Township, Kent County, and states that this report was prepared for mortgage purposes only and does not represent a property line survey). The drawing also shows the existing accessory building in front of the existing house located at 5101 Kenowa Ave. The new house was issued the address of 5105 Kenowa Ave. and the parcel number was changed with Ottawa County Property Description and Mapping to P.P. # 70-14-36-440-000 (and the Township used P.P. # 70-14-36-440-001 and -002 to identify 5101 and 5105 Kenowa Ave.).

In addition, Township officials and staff (other than the building inspector/zoning administrator who issued the permit and left the employment of the Township shortly after this time and the assessor who did not question the situation) did not become aware of this situation regarding the issuance of the building permit to construct a second house on the parcel until recently when the question arose regarding the second accessory building in the front yard of 5101 Kenowa Ave.

Shortly after this time in 2000, the Township placed a six month moratorium on the construction of private streets and reviewed the private street ordinance. In November of 2000, the Township adopted a zoning ordinance amendment to Sec. 3.26 to eliminate private streets except when developed with a planned unit development or a condominium project including a site condo development. The reason for the elimination of the private street ordinance was because most requests for private streets did not meet the intention of the private street ordinance which was to provide a tool for development of a unique piece of property that could not be developed under conventional regulations. Most applications for private streets were by developers who did not want to meet regulatory requirements or could not comply with Township ordinances and just wanted a quick fix to develop “bowling alley” streets that did not meet the Township’s development policies.

2004

On December 9, 2004, a building permit was issued for the construction of a four-season room at 5101 Kenowa Ave. The site plan provided by the applicant only showed the location of the structure on the 145 by 307.5 foot condo unit of property rather than the whole parcel which includes the other house along with an accessory building in front of the house at 5101 Kenowa Ave. (The accessory building is outside of the 145 by 307.5 foot unit area.) There would be no way the person reviewing the application would have known that the site plan showed only a portion of the parcel rather than the whole parcel with all the other structures. The building permit was issued and the room was constructed.

2006

On March 10, 2006, a building permit was issued for the construction of a 400 square foot accessory building at 5101 Kenowa Ave. The permit specifically stated that no accessory building was to be in the front yard. Again, the site plan provided by the applicant only showed the location of the structure on the 145 by 307.5 foot condo unit of property rather than the whole parcel which includes the other house along with an accessory building in front of the house at 5101 Kenowa Ave. The building permit was issued; however, construction did not begin until the spring of 2007.

2007

In the spring of 2007, the Code Enforcement Officer inspected the site located at 5101 Kenowa Ave. since the permit for the accessory building had not been given final approval and over a year had passed since the permit was issued. During the inspection he noticed that construction of the accessory building was just beginning and another accessory building existed in the front yard of the house located at 5101 Kenowa Ave. He was aware that two accessory building were not allowed on a parcel and he was also aware that accessory buildings were not permitted in the front yard. The Code Enforcement Officer knew that as a general practice, applicants were required by the Township to remove an existing accessory building when constructing a new accessory building. He also noticed that a pool had been constructed in the rear yard of 5101 Kenowa Ave. and no permits had been issued for the pool.

Consequently, the property owner of 5101 Kenowa Ave. was instructed to obtain a permit for the pool and to remove the existing accessory building in the front yard since only one accessory building is permitted for a parcel as per Sec. 3.4(I), and accessory buildings are not permitted in the front yard as per Sec. 3.4(A).

It was at this time that investigation took place and the whole situation came to light about the two houses on one parcel without Township approval for either a private street or site plan approval for a site condo.

Consequently, a building permit application was submitted to the Township on June 6, 2007 for the pool and an application was submitted to the Township on June 6, 2007 to request a variance to allow the second accessory building to remain in the front yard. The applicant is also appealing the zoning administrator’s determination that the second accessory building in the front yard should be counted towards the property identified as 5101 Kenowa Ave.

ADDITIONAL FACTS

1. The Georgetown Township Zoning Ordinance makes no reference to financial arrangements for ownership of structures on parcels or ownership of parts of parcels. Therefore, whatever financial arrangements have been made between the parties involved with the one parcel are irrelevant to the Township as far as zoning issues are concerned. Regardless of the fact that a master deed has been recorded listing this property as a condominium, Township ordinances were always required to be met. In fact, in two places in the recorded document a notation states that all Township ordinances must be met.

2. Sec. 3.18 of the Zoning Ordinance states that no parcel of land shall contain more than one principle building (barring any exceptions listed which this site does not meet).

3. No land splits were approved for the above noted parcel. In fact, a variance request (as noted above) was denied to allow splits to occur that would result in creating parcels that did not meet the requirements for lot width in Chapter 24 of the Township Zoning Ordinance.

4. Sec. 19.2(C) states that the Planning Commission SHALL be furnished with a site plan of the proposed development prior to the creation of a use or the erection of a building for site condominiums in any district.

5. The Planning Commission has in the past approved site plans for a site condominium project which included a private street. Those site plans that were approved were required to meet all Township ordinances concerning individual setbacks and lot width minimums. The private streets were required to meet Ottawa County Road Commission standards and approval from the Road Commission was required.

6. No site plan application was submitted for the above noted property, nor was approval granted for a site condominium project for the above noted property. In fact, the Planning Commission recommended denial of a private street application and the Township Board not only denied the application once, but reaffirmed the denial of the application a second time.

7. No approvals were obtained from the Ottawa County Road Commission for the private street to access these two houses.

8. No approvals were given from the Township Fire Department for the private street (or driveway), nor were the plans even reviewed by the Fire Department.

9. No legitimate reasons were documented as to why the former building inspector/zoning administrator determined that the building permit application for the second house on the parcel complied with Township zoning ordinances and previous decisions of the Zoning Board of Appeals, Planning Commission and Township Board.

10. No legitimate reasons were documented as to why the former building inspector/zoning administrator did not require the applicant to comply with Sec. 19.2 of the Zoning Ordinance (which requires site plan approval for condominium projects) and direct the applicant to submit a site plan and seek approval for the site condominium project.

11. The Zoning Board of Appeals is the only Township entity that has the authority to waive the requirements of the Zoning Ordinance. Therefore, the former building inspector/zoning administrator had no authority to waive the requirement of the ordinance that site plan approval be obtained for the site condo project.

12. When the application for the building permit for the second house on the parcel was submitted to the Township, a drawing by Focus Engineering dated 7-25-00 was submitted showing the two units of property with dimensions of 145 by 307.5 feet. The drawing shows an accessory building located in front of the southern house.

13. All site plans submitted with subsequent building permit applications showed only the individual condo units of property on the parcel and did not show the whole parcel nor all structures on the whole parcel.

14. Even given all the above noted information, the fact remains that a former Township employee did approve the building permit application and did issue the building permit for the second house on the parcel.

15. The assumption is made that the applicant acted in good faith when constructing the second house on the parcel and believed that he had obtained the necessary approvals from the Township.

DETERMINATION

Therefore, the following determination was made as to how the Township will view the existing structures on the site, as well as any new applications for construction on the site.

1. If the property owners choose to bring the site into conformance with Township ordinances, a site plan could be drawn with a private street showing all elements in compliance with ordinance standards. The site plan could be submitted to the Township for site plan approval for a site condo project. Once the Planning Commission approved a site plan for a site condominium development (as long as the plan was drawn in compliance with Township ordinances), the site would be established as conforming to Township ordinances.

2. No additional single family residences would be approved for construction on the site unless site plan approval was first obtained and such construction was in conformance with the approved site plan.

3. If the property owners decide to leave the site as it currently exists, the Township will view the two 145 by 307.5 foot units of property on the one parcel as individual entities which must individually meet all Township ordinances for setbacks, lot coverage, structure sizes, etc. In other words, the Township will view each of the two units of property as individual lots (though this is still one parcel). Any further construction on the parcel would be reviewed in that respect.

4. Further, the existing accessory building is either considered to be located on a parcel without a principle building which is a violation of Sec. 3.4(L) which states that no accessory building or use shall be permitted on any lot which does not contain a principle building or use. Or the accessory building is considered to be located in the front of the house at 5101 Kenowa Ave. This conclusion is reached because the applicants themselves have more or less established each individual 145 by 307.5 foot unit of property as a singular lot and this existing accessory building (which is located in front of 5101 Kenowa Ave.) is not shown to be within the boundaries established by the applicant as individual lots. In addition, the existing accessory building is in front of the houses and between the houses and the street (in effect in the front yard).

5. The accessory building is not determined to be an accessory building for 5105 Kenowa because it is not shown on the 145 by 307.5 foot unit of property established by the applicant as the lot for 5105 Kenowa Ave. In addition, even if it was to be considered as such, it would still be located in the front yard.

6. Therefore, prior to any further construction on the parcel (for either units of property) and prior to the issuance of the final Zoning Compliance Certificate and Building Certificate of Occupancy for the newly constructed accessory building (which is located behind 5101 Kenowa Ave.), the accessory building in the front of 5101 Kenowa Ave. must be removed.

The letter with the above noted information was sent to the applicant on Friday, June 29, 2007 as the determination according to Sec. 28.10 with the understanding that the applicant intended to appeal the zoning administrator’s determination along with requesting the variances to have two accessory buildings and to have an accessory building in the front yard. As per Sec. 28.10, any appeals from the ruling of the zoning administrator concerning the enforcement of the provisions of this ordinance may be made to the Board of Appeals within five days after the date of the zoning administrator’s decision which is the basis of the appeal. The applicant filed an appeal with the zoning administrator specifying the grounds for appeal.

Don Johnson, 5101 Kenowa Ave., presented the request.

The chairman opened the public hearing. No one was present to speak on the topic. The chairman closed the public hearing.

Moved by Greg Honderd, seconded by Carl DeVree, to concur with the zoning administrator’s determination based on the following findings:

· The parcel will be viewed as a site condo development as per the plan drawn by Focus Engineering dated 7-25-00 (though no formal site plan approval is granted by this finding).

· The individual condo units of property (each 145 by 307.5 feet) will be viewed as separate entities (though on one parcel) and ordinances will be administered as such. Any future construction on either of the condo units of property must conform to Township ordinances which will be administered by viewing each condo unit of property as one separate lot.

· Prior to any future construction of single family dwelling units anywhere on the property or any other construction outside of the 145 by 307.5 foot condo units of property, the applicant must seek and obtain site plan approval from the Township for a site condo project under Sec. 19.2(C).

· The additional accessory building in front of 5101 Kenowa Ave. and located outside of the designated condo units of property may remain as it currently exists.

MOTION CARRIED.

The zoning administrator presented a review for the variance requests.

Although there are two separate variance requests, they are reviewed as one and are really interdependent because if the variance is granted to have two accessory buildings, but not granted to locate the building in the front yard, the applicant would still have to remove it. Conversely, if the variance was granted to locate the accessory building in the front yard, but not granted to have two, the applicant would still have to remove the accessory building.

Variance standards in Sec. 28.11(C) are required to be met in order for a variance to be granted. The standards that have objectively been met are noted with an “X” in the “yes” column. The others are open to interpretation by the ZBA and the ZBA should determine if those standards are met.

Variance ID			VAR0704
Applicant			Don Johnson
Address			5101 Kenowa Ave.
Request			To have 2 accessory buildings and one in the front yard
Date			Applied for July 25, 2007 meeting
#	YES	NO		CONDITIONS (Chapter 28.11-C)
1				Granting the variance(s) will be in the public interest and will ensure that the spirit of the Ordinance shall be observed.
2	X			Granting the variance shall not permit the establishment within a district of any use which is prohibited, nor shall any use variances be granted.
3	X			That there are practical difficulties in complying with the standards of the Zoning Ordinance resulting form exceptional, extraordinary, or unique circumstances or conditions applying to the property in question, that do not generally apply to other property or uses in the vicinity in the same zoning district; and have not resulted from the adoption of this Ordinance.
4	X			That the granting of such variance will not be of substantial detriment to adjacent properties or improvements in the vicinity; or, that the application of conditions of an approved variance will eliminate or sufficiently mitigate potential detrimental impacts.
5				That granting such variance is necessary for the preservation of a substantial property right possessed by other properties in the vicinity in the same zoning district.
6				That granting such variance will not cause any existing non-conforming use, structure, or condition to be increased or perpetuated, contrary to the provisions of Chapter 27 of this Ordinance, except in accordance with Section 27.12.
7				That the variance is not necessitated as a result of any action or inaction of the applicant.

The ZBA will have to decide if they agree with the determination that standards 2, 3 and 4 are met. The ZBA will have to determine if standards 1, 5, 6 and 7 are met.

Standard #1 - Granting the variance will be in the public interest and will ensure that the spirit of the Ordinance shall be observed.

The ZBA will have to determine if this standard is met.

Discussion: nearly all the parcels in the whole section are zoned RR and meet the minimum district regulations of 200 feet in width and 30,000 square feet in area. However, no parcels in this section that the Township is aware of were developed as a site condo development. There are large trees around the accessory building that block the view of it from all adjacent parcels.

Standard #2 - Granting the variance shall not permit the establishment within a district of any use, which is prohibited, nor shall any use variances be granted.

Met. The use of a single family home and accessory building are permitted in the RR district.

Standard #3 - That there are practical difficulties in complying with the standards of the Zoning Ordinance resulting from exceptional, extraordinary, or unique circumstances or conditions applying to the property in question, that do not generally apply to other property or uses in the vicinity in the same zoning district; and have not resulted from the adoption of this Ordinance.

Appears to be met. The practical difficulties result from the exceptional and unique circumstances under which the site was developed. Although there are appears to be no practical difficulties to prevent the removal of the existing accessory building in the front yard, the unusual circumstances are related to history of the development. The applicant sought approvals from the Township to develop the site through various application processes and finally received the approval from a Township representative who was a zoning administrator/building inspector in early 2000. Based on that approval from the Township, the applicant acted in good faith and developed the site as it exists today with the belief that the two single family dwellings and accessory buildings, along with the accessory building in the front yard, met Township ordinances.

Standard #4 - That the granting of such variances will not be of substantial detriment to adjacent properties or improvements in the vicinity; or, that the application of conditions of an approved variance will eliminate or sufficiently mitigate potential detrimental impacts.

Met. As a site visit and the pictures show, the accessory building is not visible from the street or from adjacent properties due to the great distance and the large amount of trees.

Standard #5 - That granting such variance is necessary for the preservation of a substantial property right possessed by other properties in the vicinity in the same zoning district.

The ZBA will have to determine if this standard is met.

Discussion: While other site condo developments have the right to have single family dwellings along with accessory buildings as well as accessory buildings on the common area, it does not appear that other parcels in the vicinity were developed as site condos.

Standard #6 - That granting such variance will not cause any existing non-conforming use, structure, or condition to be increased or perpetuated, contrary to the provisions of Chapter 27 of this Ordinance, except in accordance in Section 27.12.

The ZBA will have to determine if this standard is met.

Discussion: Due to the unusual circumstances under which the site was developed, there is no determination as to whether or not the site conforms to ordinances. If the site were to be developed today under the current standards, it would not meet ordinances; however, the development was approved by a Township representative who would have had to make the determination that the site and construction was conforming in order to issue the building permit. It does not seem appropriate that the ZBA should consider the past actions of a former employee at this time, but rather give the benefit of doubt in favor of the applicant and former employee.

Standard #7 - That the variance is not necessitated as a result of any action or inaction of the applicant.

The ZBA will have to determine if this standard is met.

Discussion: The applicant acted in good faith when he received an approved building permit in 2000 for the construction of the second house (with the existence of the accessory building in the front yard) believing that he had all the Township approvals he needed. Although it is the unusual circumstances under which the site was developed that result in the necessity of variances, it was the action of the Township by issuing the building permit for construction on the site that contributed to the necessity of the variances.

Greg Honderd stated that it would be in the best interest of the Township to deny the variance requests because the accessory building is really not a part of the site condo area and variances are not needed.

Stanley Sterk said that the accessory building is located in the common area and oftentimes condo developments have buildings or pools in the common areas that are not counted toward any of the condo units.

Greg Honderd said that it would be okay to have one garage in the common area. He asked how the zoning administrator viewed the garage.

The zoning administrator stated that she determined that it should be permitted to remain due to the unusual circumstances under which the site was developed, but she thought that a ruling was necessary from the ZBA.

The chairman opened the public hearing.

A member of the audience asked if the applicant would be allowed to have two accessory buildings. It was explained that the ZBA was deliberating on that issue.

The chairman closed the public hearing.

John Fanthorpe said that there was a large common area and the accessory building on the common area should not be counted toward either house.

Stanley Sterk asked if the parcel was 1000 feet deep.

The applicant said that it was 1320 feet deep.

Stanley Sterk said that it was a quarter mile deep and it doesn’t make any difference if the accessory building is there or not.

The zoning administrator said that it mattered because of ordinance requirements and a determination was necessary from the ZBA in order for it to remain.

Moved by Greg Honderd, seconded by Carl DeVree, to deny the variance request for (VAR0704) Don Johnson, 5101 Kenowa, to have two accessory buildings, a variance of one from maximum of one accessory building permitted in Sec. 3.4(I) and to locate an accessory building in the front yard, a variance from Sec. 3.4(A) which states accessory buildings and uses shall not be erected in any front yard and a variance from Sec. 3.4(F) which states that in residential districts a detached accessory building shall be located in the rear yard or non-required side yard, in a (RR) Rural Residential district, on parcels of land described as P.P. # 70-14-36-440-000, -001 and -002, located at 5101 and 5105 Kenowa Ave., Georgetown Township, Ottawa County, Michigan (site plan showing two units of property each with 145 by 307.5 feet of property on one parcel, application and GIS map showing one parcel, letter to applicant with determination, 1988 variance application and minutes with denial, minutes of previous requests and denials), based on the declaration of findings as follows:

1. The requests do not meet all the seven standards that are required to be met in order for a variance to be granted.

2. It is the determination of the ZBA that the accessory building is considered to be located on the common area of the site condo development outside of the condo unit areas and will not be counted as an accessory building to either of the principle buildings on the condo property units.

3. The accessory building can remain.

4. Any further change or construction on this common area or alteration to this existing structure in the common area would only be allowed after site plan approval is granted by the Township and is in conformance with this approved plan.

MOTION CARRIED.

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#070725-04 - (VAR0705)

James Boutell, 6761 Shady Oak Lane, is requesting to park a recreational vehicle in front of the front face of the principle building, a variance from Sec. 3.17(A) which states that recreational vehicles shall be located behind the front face of the principle building, and is requesting to construct a six foot fence within the front setback area, a variance from Sec. 3.8(A) which states that a fence may not exceed a height of three feet within the front setback area, in a (LDR) Low Density Residential district, on a parcel of land described as P.P. # 70-14-19-400-046, located at 6761 Shady Oak Lane, Georgetown Township, Ottawa County, Michigan.

The zoning administrator presented a request as follows.

REQUEST

The request is to park a fifth-wheel trailer on the side of and in front of a house situated on a heavily wooded metes and bounds parcel consisting of about 2.5 acres. The rear yard consists of ravines and Rush Creek flows through the rear yard. Sec. 3.17 states that the outdoor storage or parking of recreational vehicles must be behind the front face of the principle building. In addition, the request is to construct a six foot high fence in the front setback area which is essentially adjacent to the rear yard of the adjoining houses. Sec. 3.8(B) states that a fence may not exceed a height of three feet in the front setback area of all streets. Sec. 3.8(C) states that a fence up to a height of four feet may be permitted within the front setback area provided, in the opinion of the zoning administrator, the design, location and materials of such fence will not obscure the visibility from such setback area of vehicular or pedestrian traffic along the street.

The determination has been made by the zoning administrator that a four foot high fence would be approved (according to the provisions of the ordinance without the necessity of a variance) along the side property lines (the same as requested in the variance application for the 6’ high fence) up to a distance no closer than at least forty feet from the right-of-way line of Shady Oak Lane. The reason for approval is because the design, location and materials of such a privacy fence will not obscure the visibility from the setback area of vehicular or pedestrian traffic along the street.

DISCUSSION.

This is a uniquely shaped large heavily wooded lot with side property lines that abut the rear yards of the adjoining properties. In addition, Rush Creek flows through the rear yard and ravines are also located in the rear yard. An existing pool is located in the side and rear yard. It appears as though it would not be physically possible for the applicant to meet the ordinance and park the RV behind the front face of the house. Further, since this is a large heavily wooded lot, it does not appear as though parking the RV on the side of and in front of the house would negatively impact the adjoining properties since the RV would not be easily visible due to the dense woods. In addition, the RV would be parked in a spot that adjoins the rear property lines of the adjacent properties. The attached picture demonstrates that the site where the RV would be parked is surrounded by a densely wooded area that would even obscure visibility from the applicant’s house.

The same factors pertain to the request for the 6’ high fence with the exception that the applicant has the ability to meet the ordinance requirements by installing a 4’ high fence rather than the 6’ high fence. The zoning administrator has determined that the 4’ high fence would be approved because the design, location and materials of such a privacy fence will not obscure the visibility from the setback area of vehicular or pedestrian traffic along the street.

SUMMARY

For the variance to park the RV in front of the front face of the house it appears as though all the standards of the ordinance have been met in order for the variance to be granted because of the following reasons:

1. This is a uniquely shaped large heavily wooded lot with side property lines that abut the rear yards of the adjoining properties.

2. Rush Creek flows through the rear yard.

3. Ravines are also located in the rear yard.

4. An existing pool is located in the side and rear yard.

5. It appears as though it would not be physically possible for the applicant to meet the ordinance and park the RV behind the front face of the house.

6. Since this is a large heavily wooded lot, it does not appear as though parking the RV on the side of and in front of the house would negatively impact the adjoining properties since the RV would not be easily visible.

7. The RV would be parked in a spot that adjoins the rear property lines of the adjacent properties.

8. The site where the RV would be parked is surrounded by a densely wooded area that would even obscure visibility from the applicant’s house.

For the variance to have a 6’ high fence in the front yard setback it appears as though standards 1, 2, 4 and 6 have been met and that standards 3, 5 and 7 are not met for the following reasons:

1. This is a uniquely shaped large heavily wooded lot with side property lines that abut the rear yards of the adjoining properties.

2. However, the applicant has the opportunity to meet ordinance requirements by installing a 4’ high fence.

The following documentation provides details as to how the determination has been made of either meeting or not meeting ordinance standards.

Variance ID		VAR0705
Applicant		James Boutell
Address		6761 Shady Oak Lane
Request		To park a recreational vehicle in the front setback and to have a 6’ fence in the front setback
Date		Applied for July 25, 2007 meeting
#	YES	NO	CONDITIONS (Chapter 28.11-C)
1	X (both)		Granting the variance(s) will be in the public interest and will ensure that the spirit of the Ordinance shall be observed.
2	X (both)		Granting the variance shall not permit the establishment within a district of any use which is prohibited, nor shall any use variances be granted.
3	X for the RV	X for the 6’ fence	That there are practical difficulties in complying with the standards of the Zoning Ordinance resulting form exceptional, extraordinary, or unique circumstances or conditions applying to the property in question, that do not generally apply to other property or uses in the vicinity in the same zoning district; and have not resulted from the adoption of this Ordinance.
4	X (both)		That the granting of such variance will not be of substantial detriment to adjacent properties or improvements in the vicinity; or, that the application of conditions of an approved variance will eliminate or sufficiently mitigate potential detrimental impacts.
5	X for the RV	X for the 6’ fence	That granting such variance is necessary for the preservation of a substantial property right possessed by other properties in the vicinity in the same zoning district.
6	X		That granting such variance will not cause any existing non-conforming use, structure, or condition to be increased or perpetuated, contrary to the provisions of Chapter 27 of this Ordinance, except in accordance with Section 27.12.
7	X for the RV	X for the 6’ fence	That the variance is not necessitated as a result of any action or inaction of the applicant.

The ZBA should determine if they agree with the determination that all the standards are met for parking the RV in front of the front face of the house and that 1, 2, 4 and 6 are met for the 6’ high fence, but 3, 5 and 7 are not met.

Standard #1 - Granting the variance will be in the public interest and will ensure that the spirit of the Ordinance shall be observed.

Met for both requests. The request to park the RV and have a 6’ fence in the front setback area appears to meet the spirit of the ordinance and the public interest will be met since this is a large heavily wooded lot where the side lot lines abut the rear property lines of the surrounding properties. The intention of the ordinance is that the parking of a RV and a 6’ fence would not negatively impact the neighborhood and become unsightly. Due to the wooded area, the intention of the ordinance is met.

Standard #2 – Granting the variance shall not permit the establishment within a district of any use, which is prohibited, nor shall any use variances be granted.

Met for both requests. The use of a single family home, parking a RV and having a fence are all uses permitted in the LDR district.

Standard #3 – That there are practical difficulties in complying with the standards of the Zoning Ordinance resulting from exceptional, extraordinary, or unique circumstances or conditions applying to the property in question, that do not generally apply to other property or uses in the vicinity in the same zoning district; and have not resulted from the adoption of this Ordinance.

Met for parking the RV in the front yard. The practical difficulties result from the exception, extraordinary and unique circumstances due to the heavily wooded lot, the location of the pool on the side and rear of the property and the fact that the rear yard consists of ravines and the fact that Rush Creek flows through the back yard. For all these reasons, it is impossible for the applicant to meet the ordinance and park the RV behind the front face of the house.

This standard does not appear to be met for the fence request. The ZBA will have to determine if this standard is met for the 6’ high fence since the request is still impacted by the facts of the woods, ravine and creek. However, the ZBA will have to determine if a 4’ high fence (which meets ordinance requirements) would fulfill the same need for the applicant.

Standard #4 – That the granting of such variances will not be of substantial detriment to adjacent properties or improvements in the vicinity; or, that the application of conditions of an approved variance will eliminate or sufficiently mitigate potential detrimental impacts.

This standard appears to be met for both requests. In regards to the RV parking in the front yard, the lot is heavily wooded which shields the RV from the view of the adjacent property owners, including from the front yard. In regards to the fence, a 4’ high fence would be permitted without a variance and the two more feet would not detrimentally affect the neighbors since all of these adjacent neighbors have the right to have a 6’ high fence along their rear property lines in virtually the same locations (which are the side property lines of the application that are located in front of the house).

Standard #5 – That granting such variance is necessary for the preservation of a substantial property right possessed by other properties in the vicinity in the same zoning district.

Met for the request to park the RV in the front yard because the applicant is UNABLE to park the RV behind the front face of the house like most others in the vicinity would be able to do due to the facts that the lot is heavily wooded, the pool is on the side of the house and the rear yard consists of ravines and Rush Creek flows through it.

This standard is not necessarily met for the 6’ high fence since other property owners in the vicinity would not have the right to have a 6’ high fence in the front setback. However, the property owners in the vicinity would have the right to have the 6’ high fence along their rear property line which is the same property line where the applicant has requested to have the 6’ high fence. Due to the shape of the lot, this property line is determined to be in the front setback area of the subject site.

Standard #6 – That granting such variance will not cause any existing non-conforming use, structure, or condition to be increased or perpetuated, contrary to the provisions of Chapter 27 of this Ordinance, except in accordance in Section 27.12.

Met for both requests. As far as is known, no elements on the site are currently non-conforming.

Standard #7 - That the variance is not necessitated as a result of any action or inaction of the applicant.

Met for the request to park the RV in the front yard because the applicant is UNABLE to park the RV behind the front face of the house like most others in the vicinity do due to the facts that the lot is heavily wooded, the pool is on the side of the house and the rear yard consists of ravines and Rush Creek flows through it.

This standard is not necessarily met for the 6’ high fence because the applicant would be permitted to have a 4’ high fence anyway in the same location as the 6’ high fence is requested and it appears as though it is only the applicant’s desire to have a 6’ fence that necessitates the variance request.

James Boutell presented the request. He submitted a letter in support of the variances and pictures of the site. He said that his neighbor, John Grootenboer, 6785 Shady Oak Lane, was present in the audience and was in favor of the variance requests.

Carl DeVree said that he understood that the area was screened by a heavily wooded area, but in the fall the leaves will fall and there won’t be such a screened area.

The applicant stated that they leave on December 26 every year to go to Florida for the winter.

Carl DeVree said that the applicant’s site now was obscured by the trees but would not be screened with the trees are bar with no leaves.

The applicant stated the following. The recreational vehicle was a beautiful unit and looks better than the truck that could be parked there and would be parked there if the variance was denied. The RV is quieter than the truck because the truck is diesel. He looks out his front window so see the rear yards of his neighbors. He sees the piles of stuff they all have in their back yards. The house was built 39 years ago and the house could have been built up 50 feet closer to the front lot line to allow the RV to be parked in the rear. The ordinances regarding the parking of recreational vehicles were probably not in effect at the time the house was built.

John Fanthorpe noted that letter in favor of the request from Bruce and Margaret Lynds, 4331 Shady Oak Court.

The chairman opened the public hearing.

Caroline Kapteyn, 4363 Shady Oak Ct., stated the following. She lives on lot 22 directly behind the applicant’s property. The driveway on the applicant’s property comes into the garage and there is enough room to park the RV if they get rid of some landscaping. She measured the property and there is enough room for the applicant to park behind the house even with the ravine and heavy woods. The RV would be parked right behind their house. They sit in their back yard and don’t care if the RV is a $100,000 vehicle because it still would be an eyesore. She talked to a realtor and was told that it would affect their property if they decided to sell. The realtor said that it would not be good and suggested that they call their neighbor and ask for the RV to be moved if they had a showing of their house. It would be fully visible and they would rather see a truck. A six foot high fence would not block the twelve foot high RV that is 50 feet long. They would rather not have the fence because they enjoy the trees. She submitted a letter from their neighbor in opposition to the variance requests.

The chairman noted that the letter in opposition was from Janice Gwasdacus, 4379 Shady Oak Ct. and the letter in support was from John Grootenboer, 6785 Shady Oak Lane.

John Grootenboer, 6785 Shady Oak Lane, said that his property directly abuts the applicant’s site and he is in favor of the variances. He said that the yard of the people who are complaining used to be full of trees but they were cut down; so now there is no protection.

Caroline Kapteyn said that they did not cut the trees.

Ruthann Boutell said that they could remove the trees and put in a fast-growing hedge that would block the view. She said that a 6 foot high fence would screen normal activities and the neighbors would not see into their yard.

Cornelius (Corey) Kapteyn stated the following. They look at the yard and developed gardens and put in bird feeders. They look into the yard a lot and enjoy the woods. They don’t want to look at a big twelve foot high RV or a six foot fence because even with the fence they would see a vast majority of the RV. The applicant could park in the driveway and back the vehicle further back behind the front face of the house and still park the other vehicles in the garage.

The applicant said that the trees are his trees and are on his property. He said that the neighbors are allowed to put an RV in their back yard and their backyards were adjacent to his front yard. He said that he would have to take the trees out to park in the back yard.

Caroline Kapteyn said that the applicant put up a second building that does not meet the ordinance and either the ordinance was not in effect at the time or they constructed it without a permit.

The chairman closed the public hearing.

Greg Honderd asked if the applicant’s front yard would actually be a rear yard if the site had been developed into subdivision lots rather than the unusually shaped lot.

The zoning administrator stated that if the applicant’s parcel had been developed as a plat, his front yard would be rear yards adjacent to the rear yards of the adjoining properties which is the area where the RV would be required to be parked.

To have a six foot high fence in the front setback area:

Moved by Greg Honderd, seconded by Carl DeVree, to deny the variance request for (VAR0705) James Boutell, 6761 Shady Oak Lane, to construct a six foot fence within the front setback area, a variance from Sec. 3.8(A) which states that a fence may not exceed a height of three feet within the front setback area, in a (LDR) Low Density Residential district, on a parcel of land described as P.P. # 70-14-19-400-046, located at 6761 Shady Oak Lane, Georgetown Township, Ottawa County, Michigan, based on the findings that the request does not meet the seven standards of the ordinance necessary in order for a variance to be granted.

Stanley Sterk asked if the fence would be allowed to be six feet high if it were to be moved over two feet. The zoning administrator clarified that if the fence was constructed on the adjacent properties as a rear yard fence, it would be allowed to be six feet high.

Yeas: John Fanthorpe, Greg Honderd, Carl DeVree

Nays: Stanley Sterk

Absent: Joyce Weise

It was clarified that the Zoning Enabling Act requires a concurring vote of the majority of the ZBA members; therefore, the motion passes.

MOTION CARRIED.

To park a recreational vehicle in front of the front face of the house:

Moved by Stanley Sterk, seconded by Carl DeVree, to approve the variance request for (VAR0705) James Boutell, 6761 Shady Oak Lane, to park a recreational vehicle in front of the front face of the principle building, a variance from Sec. 3.17(A) which states that recreational vehicles shall be located behind the front face of the principle building, in a (LDR) Low Density Residential district, on a parcel of land described as P.P. # 70-14-19-400-046, located at 6761 Shady Oak Lane, Georgetown Township, Ottawa County, Michigan, based on the findings that the request meets the seven standards of the ordinance.

MOTION CARRIED.

#070725-05 - Adjournment

The meeting was adjourned at 8:30 p.m.