SPECIAL MEETING OF THE ZONING BOARD OF APPEALS OF THE CITY OF NOVI

CIVIC CENTER - 45175 TEN MILE RD.

WEDNESDAY - APRIL 30, 1997

The Meeting was called to order at 7:01 p.m., with Chairman Antosiak presiding.

ROLL CALL

Present: Members Brennan, Reinke, Harrington, Bauer, Antosiak, Baty (alternate)

Absent: Member Meyer

Also Present: Donald M. Saven - Building Official

David Fried - City Attorney

Nancy McKernan - Recording Secretary

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Chairman Antosiak indicated this is a Special Meeting and we only have one item on the Agenda. I will ask if there is any suggested changes to the Agenda. Hearing none; all in favor of approval of the Agenda, please say aye. All yeas. Agenda is approved.

Chairman Antosiak indicated since there is no public present, we will dispense with the Public Remarks.

Chairman Antosiak indicated with our alternate present we have a full Board this evening, so any decision made on this variance request will be official tonight.

Continuation of case filed by the City of Novi requesting a variance to the front yard setback requirement in the taking of the properties located at 41325 Thirteen Mile Road; (variance of 15.88' for front yard setback and 17.88' for the front porch under allowable projections).

David Fried was present for the City of Novi.

David Fried: I appreciate the Board meeting on this occasion to address this matter. We have requested a special meeting of the Board because we have a trial coming up on November 5th and the Board’s decision on this matter would become a part of the record of the trial. As you know by our request we are asking for a front yard variance and we are asking for a variance in regard to the porch and decks on this piece of property at 41325 Thirteen Mile Road. The cause or the necessity for the City to request a variance is that we are improving Thirteen Mile Road and by improving Thirteen Mile Road we are taking 27 feet of the property at 41325 Thirteen Mile Road. As a result that property will lack 15.88 feet in it’s front yard in order to comply with the front yard setback.

Dave Fried: The authority of the City to appear before you on this is granted by a statute that was adopted and was effective as of December 26, 1996. For the record let me read that portion of the statute which is Section 4, parent 2 of the statute as it comes into play in regard to our request.

"(2) If the acquisition of a portion of a parcel of property actually needed by an agency (and the agency is the City of Novi) would leave the remainder of the parcel in nonconformity with a zoning ordinance, the agency, before or after acquisition, may apply for a zoning variance for the remainder of the parcel. In determining whether to grant the zoning variance, the governmental entity having jurisdiction to grant the variance shall consider the potential benefits of the public use for which the property would be acquired, in addition to those criteria applicable under the relevant zoning statute, ordinance, or regulation. The agency must actually acquire the portion of the parcel of property for the proposed public use for the zoning variance to become effective for the remainder. If a variance is granted under this subsection, the property shall be considered by the governmental entity to be in conformity with the zoning ordinance for all future uses with respect to the nonconformity for which that variance was granted. However, if the property was also nonconforming for other reasons, the grant of that variance has no effect on the status of those other preexisting nonconformities. An owner shall not increase the nonconformity for which a variance is granted under this section without the consent of the governmental agency".

Dave Fried: We are applying for this variance under that section of the statute. We think that the legislature was acting properly and in great wisdom when the adopted this section because governmental agencies such as the city often come in and take parts of the property leaving the balance of the property as nonconforming and that is unfair to the owner and it leaves a rather bad situation because you have an illegal nonconforming use of the property or an illegal nonconforming structure and really the governmental agency can’t do anything about it because they cause it. If the agency went into court and asked the court to bate the nonconformity the court would just laugh at them because you create the nonconformity and then you ask to abate the nonconformity.

Dave Fried: What this in effect does is that it allows that particular parcel of land to conform with the zoning ordinance and all future uses with respect to that particular nonconformity.

Dave Fried: It was necessary to take this 27 feet because Thirteen Mile Road is being widened all the way down and we have acquired all of the property along Thirteen Mile Road for increasing the road and this is the only parcel left. We have already acquired the 27 feet and the only matter before the court on Monday’s trial is the matter of just compensation.

Dave Fried: I will be very happy to answer any questions that the Board might have of me. I again appreciate your coming down for this special meeting so that you can address this case.

DISCUSSION

Member Brennan: When we had our last meeting where this was tabled the homeowner’s attorney suggested that what was going on was illegal; I assume that by nature of his not being here that is a moot point. Have you had any discussion with their attorney?

Dave Fried: What ever has been claimed in regard to illegality he can raise at the time of the trail and that will be resolved by the judge. I don’t know where he claimed illegality was; certainly the statute gives this Board the jurisdiction to grant this variance.

Vice-Chairman Reinke: I think that from what I recall that the homeowner really had no objection to the variance.

Dave Fried: I really can’t see why the homeowner would.

Vice-Chairman Reinke: If I recall, the attorney said that it really wasn’t going to affect them and that they really didn’t object to it. I don’t know whether that just on the legalities of taking the property or something was what their objection was; but as far as the variance was concerned that they really didn’t have an issue with that.

Dave Fried: That is my recollection and the minutes of the Meeting reflected that statement.

Member Harrington: My recollection was a little bit different and I think that I was instrumental in suggesting some more information from the representative of the property owner. The presentation at best was ambiguous as to what the position of the property owner was and in fact it was uncertain whether the property owner even had Notice until the gentleman stepped up. It seemed to be that there was an objection being raised on technical terms and it seemed that if the Board was to act properly that we were entitled to more information regarding the nature of the objection and the like. I recall that there was some Notice issue regarding the attorney and it seemed like he needed more time and in fairness I felt that the Board should have additional input if there was an objection, we could deal with that objection to give the petitioner or the opponent (if there was one) the opportunity to present materials. It is somewhat disturbing that no such material has been presented. My recollection of that meeting was that there would be economic consequences if we did not grant the variance. I was very interested to know what those economic consequences would be in terms of the exercise of our discretion. Thus far we haven’t heard anything and it is in the nature of a default that the property owner has not appeared through Counsel here this evening, and I have been assured by Ms. McKernan that there has been proper notice. The one question that I have and before I ask that question let me indicate for record purposes that I think the City Attorney’s office does a wonderful job, you guys are in a tough position and I wish that we would see you more often at our Meetings but you guys do a terrific job. Having said that, have there been any attempts made to adjourn the trial and I think that Mr. Fried mis-spoke when he said November 5th, you probably meant May 5th; where there any attempts made to adjourn the May 5th trial a week or 2 weeks or a month, so that we could take care of this in the ordinary course?

Dave Fried: We have made no attempt to do that. This trial was adjourned one time and the judge that is handling this matter does not normally adjourn proceedings.

Member Harrington: My reaction to that is that if no attempt was made, I know that the City employees who are here tonight are being paid overtime, I know that all of the Board Members are receiving no compensation for their attendance here and I know that the City Attorney is being paid for his presence here tonight and I think that in fairness to the Board common courtesy would have suggested that at least the preliminary attempt of "Judge, can we kick it a week because we have a Board Meeting next Tuesday?". I think that common courtesy would have suggested that before having us here for a Special Meeting and had reasonable efforts been made, that is fine and we would do what we had to do at any time, day or night if there is a City emergency. I know that you were not here at the last Meeting, so maybe there was some slippage in between and that to me would seem to have been appropriate rather than calling in this entire Board on an emergency basis for something which could have been avoided and we could have handled this at Tuesday night’s Meeting. That is my comment on our emergency session tonight. I think that it is not an emergency. I think that it is inappropriate. I am prepared to deal with the issues and obviously the variance should be granted because there is no opposition. But, we could have done that next Tuesday. That is only my comment.

Dave Fried: Do you want me to respond to that?

Member Harrington: If you would like to.

Dave Fried: I don’t really want to respond to that.

Moved by Vice-Chairman Reinke,

Seconded by Member Bauer,

DISCUSSION ON MOTION

Chairman Antosiak: I just want to clarify that technically there are two variances, one for the house setback and one for the porch setback. The house setback is 15.88 feet for the variance and the porch is 17.88 feet.

Member Brennan: Further clarification, if I am not mistaken, this variance is forever for any property of that property.

Chairman Antosiak: It runs with the property, that is right.

Member Harrington: Before we vote, let me ask the question that I really wanted someone to answer. Mr. Fried are there, in your view, economic consequences if we do not approve the variance? Like do they get more money from the City if we don’t? Is that an issue that is out there? What is going on in that District Court case?

Dave Fried: I am curious as to why you are concerned about the economic consequences of this. I don’t think that this Board should involve itself with the economic consequence of the variance. This Board should either grant a variance on the merit or not grant a variance on the merits. I have just read the statute to you and the statute does not have anything to do with economic consequences. So, you should decide this on the basis of whether the City needs the property and the City obviously needs the property, the City took the property and there is no question on the need of the property and whether there is going to be economic consequences is for the judge to decide and for the jury to decide. It is not for this Board to decide. It is not an issue for this Board at all. It should never be an issue for this Board and I don’t know why you raise it as an issue.

Member Harrington: Because I was curious at the last Meeting and I am curious at this Meeting, what the consequences of our decision are and that is a fact that is apparently associated with the case. I have asked the question and you prefer not to answer and I respect that.

Dave Fried: Let me tell you why I have asked for this Special Meeting. I intend to tell the court and the jury that the Zoning Board of Appeals pursuant to this statute has granted a variance and that it is now a legal nonconforming use. That is the reason why I have asked for this Special Meeting. I wanted to make that my opening statement. I intend to, if this Board votes on this and approves it, to make this my opening statement. The counsel for the property owner can do what he sees fit in that regard.

Member Baty: Wouldn’t it still be legal nonconforming use if the variance wasn’t granted?

Dave Fried: It would be an illegal nonconforming use and that is an anomaly. The City creates the illegal nonconforming use and normally where there is a legal nonconforming use, the City would go in and ask that the nonconforming use be abated; but when we create the nonconforming use then we go in court and say abate this nonconforming use, the court would throw us out. That is why they passed this statute, so that we can come before the Zoning Board of Appeals and say that this is not right for the property owner to have this illegal nonconforming use; now you can have a legal if the Board grants it. A legal nonconforming use. The distinction between an illegal nonconforming use and a legal nonconforming use is that the municipality should abate all the illegal nonconforming uses. Go into the court and abate them. If they are legal nonconforming uses the City can abate them. Does that answer your question?

Member Baty: I understood most of that.

Member Bauer: You are giving the property owner not a nonconforming use, you are giving them a conforming use; so when he does go to sell it there is no problem.

Roll Call: Yeas (6) Nays (0) Motion Carried

Chairman Antosiak: The variance has been granted.

Dave Fried: Thank you, I appreciate your help in this problem. I again thank you for coming here.

Vice-Chairman Reinke: I have a couple of issues that I would like to bring up. There are justifications for Special Meetings, but I think that we really need to look at our fee schedule for the petitioner’s coming before the Board. I think that we are totally, unreasonably cheap.

Don Saven: I would like to respond to that particular issue based on the fact that we are going through changes in our fee structure and part of it is dealing with all of the communities. I was talking with Alan about sign issues the other day involving the fee structure and one of the things that we happen to get before the Board a lot are violations that are associated with signs. We have reviewed several communities who are in the same line as us as far as populous is concerned or whatever and one of the things that came up was that fees for signs were pretty heavy. You start off with a hundred dollar fee which is normal, but if there is a sign violation it was three hundred dollars, and that was other communities very similar in nature to this particular issue. Certainly we have to deal with changes in accessory structures; sometimes the notifications alone the paper is just covered and not even the clerical time that is put into this thing. We really do have to make changes. We have not made a change to anything in the Zoning Board of Appeals resolution since 1978 and that is the same thing with the changes in our fees for permit fees and things that are related. There have been so many things that have come about and one of the things that we receive a lot on are specialty ordinance things like basketball hoops and special uses like that we would normally get and it is kind of hard to try to figure out how much we should be charging. It is the same type of scenario, we are still notifying people within the 300 feet and that is a cost, a major cost involved. We are kind of hashing out and trying to come up with something that is reasonable. I would suggest that before I do anything, I come up with a structure and present it to the Board for your review and your comments and we will go from there. We pretty well have it put together in terms of the similarness; but we are so behind with everything that is involved in the Zoning Board of Appeals requirements.

Member Harrington: I have a memory of probably 2 years ago, plus or minus; of commenting on a fee issue and my memory of the discussion at that time was that we don’t want to discourage the people from obtaining variances that they need. The focus was on the people. But it is not normally the residential citizens who are seeking variances so much as commercial businesses and I think that is by and large what we are seeing here. There may want to be some consideration regarding the differential structure or fee structure depending upon whether it is residential or commercial or signs or the like. My sense then was that the fees were to low. Not that it could ever be a profit making or even break even for the City, it couldn’t be; but it should be something more realistic based on today’s cost. That was my sense then.

Don Saven: One other issue that you are bringing up is the fact that if we deal with a problem that is inherent to one particular site, they might have 4 variances. You are not just working with one variance, you are dealing with 4. Should we charge by variance, or the number of variances that are associated with that project? In other words to break it down to commercial, or residential or?

Vice-Chairman Reinke: I think that we are looking at the residential and that would be more affordable, of course, than what the commercial is; but I think that if somebody really wants to do something I don’t think that $100.00 is unreasonable.

Don Saven: I don’t think so in comparison with other communities. That is basically the minimum requirement.

Member Harrington: Most of the cases that we see involve more than $100.00; but most of them involve more than $100.00 and I think it would be reasonable.

Vice-Chairman Reinke: I am saying that residential wise it is giving them an avenue of relief and commercial wise I think should be more than that. I see that any case coming before us that the administrative cost should be at least a minimum of $100.00. More than likely a lot of times it would exceed that. I feel that would be a minimum and it gives the residents an avenue of relief but it is kind of offsetting the cost of what the administrative and notifying everybody and bringing it before the Board and getting all the information would be. Commercial, I think should be somewhere in the range between $300.00 to $500.00. If somebody wants a Special Meeting, I think it should be $1000.00. That is my kind of guide line and I would think that you are going to come back with a recommendation.

Don Saven: I will go from there.

Chairman Antosiak: It would be interesting to see what the other communities do.

Don Saven: We have that information.

Don Saven: The issue with signs is one thing. I know that kind of irritates me to no end because I would like to do something more in this area to have these people look a little bit more for conformance. The same thing with residential, $25.00 for a setback requirement for an addition or maybe something like that, when the person could possibly conform but he is there because he really wants this extra space and he stretches the limits of what this Board can really look at as far as a hardship is concerned. We want to try to make that person understand that he going before the Board really based upon the hardship and not just the fact that he just wants to use all of his land. The idea is that it can stretch the limits of $25..00 and take up a lot of everybody’s time.

Vice-Chairman Reinke: The one thing that I really like is what you are talked about when somebody was cited with a violation that when they come before the Board it is going to be more expensive than to come to the Board first. I think it is a very good idea.

Don Saven: I was really impressed by it. It was put out by West Bloomfield. They have a forerunner of all new ordinances and it appears that it is an assistance in helping people comply with the ordinances.

Vice-Chairman Reinke: The avenues are there, but if they feel that they can get away with it well the biggest thing that is going to happen is that they are going to get caught and then they will come before the Board; maybe they got away with it for 2 or 3 years before they were caught and then they come before the Board.

Vice-Chairman Reinke: Number one, I think that the Board is too lenient. Number two, is that unfortunately with the staff that Don has he is not able to monitor everything that sticks up around the corner every night. It is a duo fold problem that we have.

Don Saven: What I will do is to present to you something and I am not going to say by the May 5th Meeting, but what I am trying to do is to try to package everything before July 1. I would like to start off my new fiscal year with some of the changes that we are looking at as far as the fee structure is concerned. If we don’t have any major catastrophes here maybe I can try to put something together before then. But at least by the June Meeting we should have something that we could take a look at as a proposal and then we could try to get it on the Council docket for sometime in the latter part of June and then hopefully it would be adopted by July 1.

Member Harrington: That is the kind that we have no approval power, we can make recommendations and we are the Board and you are the Department that sees the affect of those kind of changes. I think that it is appropriate to get input from the Board in terms of recommendations .

Don Saven: You have to understand one thing; as a Board you are receiving those people that are coming before you. You have no idea what the staff does prior to them getting to you. You try to understand and I can’t read the Board, sometimes I think that what would go would probably not go or whatever the case may be. I can’t tell this person how the Board is going to react, but I will tell them this to stay away from fire problems, to get at least 5 foot or more away from the side yard or this might not be receptive and they are fooling with this thing. Well if they are fooling with this thing and making the adjustments then certainly they could try just a little bit harder for $25.00. If you add a little more money they are going to say "well I really don’t want to go to the Board that is costing a lot of money"; the money factor right up front could probably get them to think a little bit more about requesting a variance and to try to live within the ordinance. It might be something to take a look at.

Vice-Chairman Reinke: The thing is that it is an avenue of relief, but yet I think that they should be responsible for paying for the majority or all of the administrative costs in association with their appeal.

Don Saven: You have touched base with something a little bit earlier coming to the Board is automatically granting a variance, sometimes the people have this idea and I am trying to tell them that it doesn’t happen that way and there is a lot of decision that the Board makes, they feel they will pay the $25.00 and get the variances. No, it doesn’t work that way.

Member Harrington: Is that our Novi people who think that way? Or is that the out of state commercial guys who are applying for these Meetings?

Don Saven: Homeowners. I will tell you this if you ever take a look in the Audience they are doing the game plan. They are making all the moves. They are listening to every word that you guys are saying. It is just like a side bar out in the hall type of a thing. These people who are doing this stuff you watch them and it is very interesting to watch them and how they do it.

Vice-Chairman Reinke: It is the same thing for signs. People will come in asking for 900 feet when really they only want 200 feet because if they ask for more they know that get what they really want.

Don Saven: I hate to say this but I use the terminology if you ask for 110% you will get 100%. This is when we ask for plans and reviews we ask for 110% we want more and the best and we will get our 100%. If you ask for 100% you may get 90%; we want everything done correctly.

Chairman Antosiak: When you were looking at other communities did you get a sense of the volume of variance requests, Novi versus others?

Don Saven: We have a greater volume and there is no if and or buts about that. There are communities that do two meetings a month but they take a 5 case maximum.

Nancy McKernan: There are also communities that only take 3 a month and they don’t care if they are maxed out for 6 months.

Vice-Chairman Reinke: The thing is the differential; we a thriving and growing community. The other situation that we have and we run into this a lot of times is odd sized lots. So, to say that we are going to limit the number of cases, I don’t know. I think that the fee structure will help us out that way and will also offset the administrative costs. I think that this would eliminate some people coming to us.

Don Saven: We are pretty heavy with 15 cases. Think about it. Sometimes we get a case that lasts three quarters to an hour and that is just one case out of 15 cases. I don’t know how Council does it to be honest with you when they go until one or two o’clock in the morning. It would be very difficult for me to try to concentrate and to try to do something at that time of the morning.

Member Harrington: Just one comment, because I know that the minutes actually read a little bit different than the thrust of the conversation. I don’t hear anyone saying that we should be using the fee structure to consciously limit applications because I think that the citizens of the community have the right to come before us. But it sounds like where we are at with our fee structure is way out of wack with contemporary costs; especially when we have City employees and yourself excluded who have additional cost to be here and to transcribe. It is an additional burden and the fee structure will more appropriately address those costs to the City which are being generated by the applicants. If it turns out that there are fewer applications for variances as a result of increased fees that may not be the intended result but I don’t know anyone who will be disappointed by that.

Don Saven: I think that the we will get the seriousness back.

Chairman Antosiak: I suspect that given today’s costs of printing, mailing, postage, etc. it is probably at least a dollar a letter and I know that we have cases where there are 50, or 60 or more adjoining property owners are notified.

Vice-Chairman Reinke: And when you get into multiples you are sending out 300 or more.

Chairman Antosiak: So the costs could easily be $100.00.

Vice-Chairman Reinke: $25.00 on any administrative cost to do things is not going to go very far at all. I think it is unreal to feel that we can operate with those guidelines.

Don Saven: I just did a little bit of an analysis with an adjacent community and we don’t have a fence permit. As a matter of fact I would probably stay away from this more than anything else as far as an ordinance is concerned; just make sure that your fence is in line with whatever. But you are going to get a fence case at the next meeting. It is a Hatfield and a McCoy issue

Don Saven: There are so many things happening even with the changes in our ordinances. The ordinances are getting a little stickier and the population is getting more and there are more requests for things that are happening. To be a little bit more realistic and not to make the assumption that this Board is here just to wash everything. That is not what it is. It is not an automatic approval. Somehow residents don’t understand that.

Don Saven: Personally in total honesty our Board is probably the best that I have ever seen anywhere or even have heard of anywhere. We do a lot of digging here. It is not like other communities. We are growing fast, moving fast and there are a lot of things coming before you and a lot of heavy decisions that have to be made that take a lot of thinking, It isn’t just a situation were it is cut and dried. There is a lot of issues that are out there that take a lot of time and I think that we do a good job.

Member Bauer: I don’t think that in 22 years that one Board Member ever thought of a case on time.

Don Saven: When we talk about the amount of cases that we used to have and I think that a few times we had 18 or 19, someone on the Board said that 15 was the limit and they couldn’t take anymore because it is just to difficult to deal with the situation. That worked well; but now even dealing with the 15 the way things have been happening that is not the average case.

Vice-Chairman Reinke: I think that we are getting into more as our growth and development grows faster and it becomes more complex. You are not just having the average case coming in any more, it is something that has to be looked at and dealt with a lot differently than cases that we were dealing with 10 years ago.

Vice-Chairman Reinke: The other thing is that I think the Board is very appreciative of your and Nancy’s work and the support that you have given this Board; and if there is something that we can discuss and maybe as a Board make a recommendation to the Council we would like to openly discuss this with you in looking at the fee structure. We have no direct power but I think that if we made unanimous recommendation to the Council they would probably support the endeavor of what you are trying to do or trying to improve with the system of what is in existence today. The Board would like to openly work with you and your Department. Maybe we can sit down and discuss this as a topic and kind of maybe kick a few things around. Maybe if we looked at it and the City approached it this way and we made a recommendation to Council to try to support your endeavor I think we would be more than willing to sit down and work with you on that.

Don Saven: That would be good. We have a breakdown of about 6 or 7 communities. What I can do is to have this available for the next meeting. I will have it available at the table. At your leisure take a look at it and see what you think. Beat it up a little bit. Comment.

Vice-Chairman Reinke: If you could do it that way, and then maybe at the end of the Meeting maybe we could just have it as a general discussion topic and the following Meeting look at it more realistically.

Don Saven: Thank you.

ADJOURNMENT

Meeting was adjourned at 7:50 p.m.

Date Approved Nancy C. McKernan

Recording Secretary