REGULAR MEETING – ZONING BOARD OF APPEALS – CITY OF NOVI

CIVIC CENTER – 45175 TEN MILE RD.

Tuesday – December 1, 1998

The Meeting was called to order at 7:30 p.m., with Chairman Reinke presiding.

ROLL CALL

Present: Members Brennan, Antosiak, Meyer, Reinke, Bauer, Harrington

Absent: Member Sanghvi

Also Present: Terrance Morrone – Deputy Building Official

Khanh Pham – Staff Planner

Alan Amolsch – Ordinance Enforcement Officer

Nancy McKernan – Recording Secretary

Chairman Reinke indicated the Zoning Board of Appeals is a Hearing Board empowered by the City Charter to hear appeals seeking variances from the application of the Novi Zoning Ordinance. It takes at least four (4) Members to approve a variance request and a vote of the majority of the Members present to deny a variance. We have a full Board tonight so all decisions will be final.

APPROVAL OF AGENDA

Chairman Reinke inquired if there were any changes or updates to the agenda? Hearing none, we will approve the agenda. All in favor please respond by saying aye. All opposed respond by saying nay. (All yeas) AGENDA APPROVED AS WRITTEN

PUBLIC REMARKS

Chairman Reinke indicated this is the time for Public Remarks, if there is anybody who would like to make a statement not pertaining to cases that we have before us; as we will have ample time given when the case is called. (No one wished to be heard at this time.)

Continuation of case filed by Glenda’s Garden Center requesting a variance to increase the size of an existing concrete slab and add a temporary bin outside for the purpose of selling bagged and bulk salt at 40575 Grand River Avenue. The present use of two thirds of the subject site is for buildings and seasonal outdoor storage and display. Outdoor storage is not permitted in an NCC District. Applicant to provide environmental information on containment.

There was no one present for the case. It will be called later in the Meeting.

The applicant was granted a six (6) month permit on April 7, 1998 in Case No. 98-018 and is requesting a permanent or temporary use permit for an indefinite period of time to store a boat under a canopy which is located two (2) feet from the property line, for property located at 1185 South Lake Drive.

There was no one present for the case. It will be called later in the Meeting.

Brightmoor Tabernacle is requesting three variances: (1) a variance to Section 402.1.e, to allow parking the front yard; (2) a height variance of 25 feet to Section 2400 to allow a building height of 60 feet instead of the required 35 feet; and (3) an extension of the time limit on the variance, if granted, from 90 days to 150 days for the building permit.

Calvin Ratz, Chris Mackey and Timothy Gambino were present and duly sworn.

Chris Mackey: As you have mentioned we are going for three (3) variances and I would like to address them individually. The first one is for a variance from the requirement for a church use to not having parking in the front yard of the lot. The reason that we are proposing to have parking on the side of the building facing Thirteen Mile is that this is a combination church and school facility. The school facility is located on the south end of the building facing Thirteen Mile Road, for reasons of safety and for the use of the school, parking exclusively on the north side of the building presents a problem because there is excessive distance to go and the grade slopes, so there is a change of grade of about 15 feet that students would have to negotiate between the parking lot and the school entrances; what prohibits us from parking on the side is the steep topography sloping down to the wetlands on the east side which we are already terracing out in order to meet the requirements for the building.

Vice-Chairman Brennan: I am sorry to interrupt, the display as shown is that I am looking north?

Chris Mackey: That is right. (He then explained the display to the Board.)

Chris Mackey: This is the school wing with the school entrances. The church function is in the back northern part where the main church entrance will be coming from the north. The predominance of the church parking is the north side and we have as little as we felt responsible for the school to be placed on the south side.

Chris Mackey: Those are the reasons that we have placed the parking where it is at. Some things that you should know that will alleviate the impact of the parking is the setback from Thirteen Mile Road. (chart shown the Board showing the relation of the parking to the building and to the street) You can see that the parking is set back approximately 235 feet from the right of way of Thirteen Mile Road. In that distance we have considerable landscaping, a landscaping berm, a retention pond that will screen the parking from Thirteen Mile Road as well as you can see on the diagram because of the grade and the elevation of the building and the berm in relationship to Thirteen Mile Road the site line from passing traffic on Thirteen Mile does not even see the cars parked in that area.

Chris Mackey: The second item is the building height. The nature of the facility is a large worship center. The highest portion of the building is in the center of the building. Because of it’s size in order to be acceptable for the use that is going on in there it needs the additional height. I would like to add that this site has an extreme amount of topography in it. In order to accomplish this we are already taking off a hill in the area of the building and we are taking off the top 15 feet of the hill in order to get the floor level at a level that we can get access from the parking on the north. It slopes down to the south and to the east. We have attempted to nestle the building in following the grade as it slopes on down. The height of the building in the way that your ordinance reads is measured from the lowest level. So, we have a two level building which is essentially a walk-out building and at no place on the building is it more than 35 feet high from the adjacent grade. It is due to the sloping nature of the site that we have tried to fit it in to the site. We placed the highest mast of the building away from edges of the building in order to minimize the impact as you approach the building from the north side and the east side which are the residential areas and that is where those areas are all one story. We have a higher space for a lobby and a gymnasium and then it steps on up to the highest point which is the worship center there. During our application for a special land use on this project the opinion of the City’s consulting architect was asked by the Planning Commission as to the appropriateness of this massing for this size of a building and he indicated, at that time, that in his opinion it was appropriate.

Chris Mackey: The third item is the extension from 90 days to 150 days and that is due to the size of this building and the possibility of getting our construction documents done in 90 days we would like, if something happens during that time, that we would not have to come back for an extension of that time period. So I am asking at this point for that extension.

AUDIENCE PARTICIPATION

Pastor Ratz: Mr. Mackey has explained our reasons and our rationale and I would simply like to highlight from a pastoral point of view. On the use of the building, we flipped the footprint of the project around several different ways and because of the topography this was the only way that would work. Originally we thought that the front of the church would be on the west side on the new road that is going in and we have been informed that we really have 2 sides that are on the front. This has made it difficult for us and that is really clarified by the fact that we have to put a second road in from Thirteen Mile to give us 2 accesses. The parking issue is very critical to us on the flow of the traffic through our building and our facilities; with parents dropping off students, drop off and pick up and all of that, parents coming to pay fees, to drop in to see a teacher; they have to be able to park somewhere near the school and the distance from the northern parking lot to the southern part would create great difficulty. I think that with the difference in elevation between that road and Thirteen Mile and the berm that most of the parking would not be visible from a good part of Thirteen Mile Road just because of the change in elevation and the berm in between. The elevation is very critical to us because of the acoustics and the type of dramatic presentations, musical presentations that we do on Christmas, Easter and throughout the year. It is very critical that we have more than a hotel ballroom for a ceiling and that is very, very critical for us that we are able to get the elevation that we have requested and we would really appreciate your consideration on both of those issues. Thank you.

DISCUSSION

Khanh Pham: At the November 4^th Planning Commission, the Planning Commission reviewed the Brightmoor Tabernacle site plan. At that meeting the Planning Commission approved the site plan unanimously and even put a little motion in there to recommend the ZBA grant the variances. Furthermore, just to clarify Chris’ comment in a RA District parking under special land use is not allowed in the front yard. Also in a RA District a special land use cannot exceed 35 feet and as a church the Planning Commission understanding the use did give it a positive recommendation. Our architectural consultant did concur that with the design and how it is set up the massing of the building is very deceiving and it does not look like 60 feet.

Terry Morrone had no comment.

Chairman Reinke indicated there was a total of 24 Notices sent to adjacent property owners. There was no written response received.

Vice-Chairman Brennan: I would like some clarification on how we establish the height differential. The petitioner made a comment that the height of the building is measured from the lowest level of the property site; would that be the swamp on the right or the southeast corner?

Khanh Pham: When Rod measured this, he did measure this as 60. Correct me if I am wrong, but it is at the grade where the building starts and not at the lowest point of the property.

Vice-Chairman Brennan: What is ordinance?

Chairman Reinke: That would be 35 feet.

Vice-Chairman Brennan: Measured from what?

Khanh Pham: From the ground level where the foundation starts above the ground.

Vice-Chairman Brennan: So we are essentially talking from the front of the parking lot of the school? Is that from the south end of the building, right where the trees are?

Khanh Pham: That is correct.

Member Harrington: The trees as presented on the rendering are quite impressive, is that shrubbery or trees currently on site, so that is an accurate rendering? Will trees of that size and scope be there when the building is open, or is that a suggestion of what will happen to trees when they grow in the future?

Khanh Pham: The site that Brightmoor Tabernacle is located on is about 130 or 132 acres, the site where the tabernacle is situated is 34 acres. They have an ample amount of wetlands and natural woodlands back there.

Member Harrington: I am asking about the drawing, is this what we are going to see when it opens?

Khanh Pham: For the landscape requirement, yes.

Member Harrington: So that is what is on site?

Khanh Pham: Yes, but not on site now. This is depicted to show what it could look like.

Member Harrington: So, it is not accurate? There are 100 or more trees on there and that is really not going to be what it looks like when it opens up?

Chris Mackey: The trees that are depicted on the model are trees which will be planted by the applicant; they will not be the full size when they are planted, they will be smaller and per the City ordinance for planting.

Member Harrington: So those represent what may be or will be future plantings but it will be a number of years before the site as it develops will look like what is presented with tonight.

Chris Mackey: Until it matures, that is correct.

Vice-Chairman Brennan: When I first looked at this even prior to coming here tonight, it seemed to be a very isolated site along the M-5 corridor and fronting Thirteen Mile. I think that has some bearing in our consideration. The other issue is the setback for the front of that building be 235 feet and that is pretty substantial. With the data that they have given us and the number and the significance of the parking in the front, I think it is rather minimal. I think that portion al least from my prospective is an acceptable variance. I think that there is some measure of support for their variance in the height of the building in addition to what has been said this is a church and churches have special requirements. All and all I don’t have any particular issues with any of the variance requests.

Chairman Reinke: I really think that for the development and what they are doing it is kind of hard to go into something like that and not need some deviations. I think that the request for the deviations have been minimal.

Member Harrington: My thought is that we didn’t make Lifetime Fitness dig a hole to put their building in to get a variance and we didn’t do it for Husky and I certainly can’t justify it here. This makes sense. If there is a topographical hardship presented this is it. I will support a motion in favor of this variance. My only problem is the one that I addressed and my question it seems to me that if we are to get an accurate rendering it ought to be an accurate rendering and not what it may look like in 10 years after the trees grow. In view of the fact that visibility from Thirteen Mile is an issue and you can barely see the building from this part here because of the trees and I don’t think that is exactly accurate to the Board, but it doesn’t affect my view on the merit. The merit is that it should be granted.

Moved by Vice-Chairman Brennan,

Seconded by Member Harrington,

THAT IN CASE NO. 98-093 THE PETITIONER’S REQUEST 1, 2 AND 3 BE MOVED FOR APPROVAL. THEY ARE WITHIN THE SPIRIT OF THE ORDINANCE AND ARE LIMITED IN NATURE.

Roll Call: Yeas (6) Nays (0) MOTION CARRIED

Claudio Rossi, representing Mirage Development LLC, is requesting a 10 foot variance to Section 2400.c of the Zoning Ordinance for lot 1 of Amberlund Estates Subdivision, 22440 Amberlund Court to allow a 20 foot exterior side yard setback from the south side property line instead of the required 30 foot setback for a corner lot.

Claudio Rossi was present and duly sworn.

Claudio Rossi: I am here on behalf of Mirage Development owners of the property at 22440 Amberlund Court, otherwise known as lot 1 in Amberlund Estates. Also here tonight are Mr. and Mrs. Butros, they are the probable purchasers of this lot depending on tonight’s decision on the requested variance.

Claudio Ross: We feel that lot 1 contains a hardship that other lots in the subdivision do not have. Lot 1 contains a 20’ wide landscape and sanitary easement along the south property line. The current required setback off of this side is 30 foot due to this lot being considered a corner lot. Without the easement the 30 foot setback would not be a problem. Mr. and Mrs. Butros have a house plan that they would like to build on this lot, which is approximately 75 foot wide. Under normal circumstances this house would fit on the lot. If the easement were not present then the side entrance driveway could be located on the south side of the lot within the 30 foot setback as long as it was no closer than 3 foot away from the property line and the minimum 15 foot setback could be held on the north side thus allowing a 75 foot wide building envelope. It is important to note that all other lots in the subdivision provide for at least a 80 foot wide building envelope and that the homes already in the subdivision range from 4000 to over 5000 square feet in size. However, because of this 20 foot wide easement that exists on the south side of this lot, the driveway cannot be placed on this side since City ordinance does not allow any part of a structure or driveway to be placed within an easement area. Therefore, in order to better utilize the building space the driveway would have to be placed on the north side as shown on your plot plan which would then necessitate a minimum of a 25 foot setback on this side along with a 30 foot setback required on the south side; together the side yard setbacks would total 55 feet allowing for only a 65 foot building envelope. We are asking that by reducing the setback from 30 foot to 20 foot on the south side that this would allow the Butros’ to build their house plan and their structure would still be outside of the easement area as required by the City ordinance. It is also important to note that the landscape easement is heavily planted with evergreen trees and does screen Nine Mile Road from the property. Also the right of way area from the back up curb on the north side of Nine Mile Road to the adjacent lot 1 south property line has a dimension of 46 feet. This together with the requested 20 foot setback allows 66 feet from the side of the house to the edge of the road which we feel is an adequate amount of distance and is more distance than what is required for the front setback on the Amberlund Court side. We feel that this is a legitimate hardship and one that no other lot in the subdivision has to contend with. Therefore, we are requesting that the Board consider the approval of this variance. This variance has already been approved by the architectural committee for the subdivision and we feel that the house that is proposed to be built on this lot will be a good compliment to the other homes in the subdivision. Thank you for your time, I will be happy to answer any questions that you may have.

AUDIENCE PARTICIPATION

Richard Bond, 46700 Nine Mile Rd. The western boundary of my property abuts Amberlund Estates. I would like to state that I am here on my own free will. I got the Notice in the mail and I was not requested to come here by any one. I have absolutely no problem with the variance that Mirage Development is asking for. The job that they have done in that subdivision is literally outstanding. The trees and the shrubbery that that have been put in is better than any other subdivision around there. I am sure that they are going to do a quality job on this house. I fully support their request. There is one other issue and I don’t know if it is within the realm of your capabilities tonight, but the setback from the street and the centerline of Nine Mile for their subdivision is 60 feet. My property abuts their subdivision as I am on Nine Mile. My setback is 33 feet from the centerline of the street. If possible, your sidewalk ordinance which would be on the south side of this lot that we are talking about brings their sidewalk essentially into my side lot line. If the sidewalk could somehow be curved to make a more natural flow I am sure that someday the City will have sidewalks in there and when the time comes a more natural flow to prevent the people from walking down the sidewalk on Amberlund and across my property and direct them more toward the right of way, that would be my only request if possible and if it is agreeable to Mr. Rossi. Those would be the 2 conditions.

Dona Butros, we are trying to build our dream house. We love the City. We love the area. We love the community. We are planning to have kids one day and want them to be going to the schools in the area and to grow up in this area. We basically want to build a house that we want to customize. We want to build the house that we want and not what other people want to give us with restrictions on. This house is the house that we would really like to build. We have been looking at other homes trying to build the dream house that we would like and we have come up to a certain floor plan and the way that the floor plan is set up that is the way that we would like the flow of the house to be. We are planning on building a house between 4800 and 5000 square feet and basically we want to customize it and put it the way that we would like with our own restrictions and not anybody else. Basically this is going to be a dream house that we want to build and this is the best area that we have looked at in months. This is the kind of area where we would like to have our kids grow up in. The community and all of the neighbors seem very nice.

Suheja Butros: For myself I am a newcomer to this state. I used to live in Minnesota. I moved here about a year ago. I do practice in different parts of the City, the south part, Troy and Livonia. I really like this City. If possible look into our application and consider it. As my wife has mentioned we would like a certain sized home and less than 75 feet on the front is really restrictive. Thank you for your consideration.

DISCUSSION

Terry Morrone: The Building Department has no objection.

Chairman Reinke indicated there was a total of 52 Notices sent to adjacent property owners. There was no written response received.

Member Meyer: I was just wondering about this sidewalk; is there a way of realigning that sidewalk?

Claudio Rossi: Yes, I don’t see a problem with that. We can keep it at our normal right of way line and then as we get closer to the neighbors property we can put a little jog or a curve into it so that it doesn’t go onto his property and he can maintain his yard as it is. I don’t have a problem with that.

Member Harrington: Then you would have no difficulty if we conditioned a variance, if we were so inclined, upon the restructuring of the sidewalk?

Claudio Rossi: That would be no problem at all.

Vice-Chairman Brennan: Are there any other houses in your development that are 65 foot in width?

Claudio Rossi: Not in that subdivision, they are all well over 70 feet, 75 feet and even 80 feet.. They are all in that neighborhood.

Vice-Chairman Brennan: My point in asking was that if you would have to build in order to meet that ordinance, would it make this house out of place?

Claudio Rossi: Yes, if the house had to be built to a 65 foot width, I think that it would definitely restrict the size of house and the actual layout of the house and I don’t think that it would conform to the other homes that are in the subdivision.

Vice-Chairman Brennan: You know that we have had this unspoken rule or even spoken rule about considering variances on new houses. I don't know if you have ever been in front of the Board for a variance and it doesn’t really matter; but the point is that in general we feel that if you are starting with a piece of property you ought to be able to find a way to stick a house in there and to meet the setbacks and there are exceptions to every rule. This may be one. You have this greenbelt that is required and that is eating up a section of that piece of property. I guess my general thought is that I am driven to supporting your request, unless there is someone else on the Board that comes up with something that blows me away.

Member Harrington: It sounds pretty quiet. This is a classic case of a practical difficulty not created by the petitioner, not adversely affecting other neighbors, I am not persuaded that we should be considering dream houses but that is not relevant to my consideration in this issue. You have a unique situation. This property and permitting the variance, in my view, will permit a development consistent with other homes in the neighborhood.

Chairman Reinke: I agree with Mr. Harrington, because it is circumstances here that have affected this lot that doesn’t affect other situations where we have run into problems which Mr. Brennan has addressed. I can support the direction that Mr. Brennan is going.

Moved by Vice-Chairman Brennan,

Seconded by Member Bauer,

THAT IN CASE NO. 98-094 THAT THE PETITIONER’S VARIANCE REQUEST BE APPROVED FOR THE PURPOSE OF THE UNIQUE PROPERTY CONSTRAINTS.

Roll Call: Yeas (6) Nays (0) MOTION CARRIED

Case No. 98-086 filed by Glenda’s Garden Center

No one was present for the case.

Recalled from earlier in the Meeting.

Andy Kowal was present and duly sworn.

Andy Kowal: I had earlier come before this Board for this canopy which I put up even before I knew that I needed a variance for it. At the time, I asked to store a helicopter underneath that canopy or a boat and you did not believe that a helicopter was a recreational vehicle and could not be stored there. I solved the problem with the helicopter. So I do want to store a boat there. The canopy has been up since the beginning part of this year. There has been no objections to it. At the earlier Meeting our neighbor at the Southpointe Condominium was the only objecting party. Their objection as I remember were mostly about the broken brick and concrete that we temporarily placed on their land accidentally which we removed and they were objecting to some trash going onto their property during construction. We have taken care of that problem at least. No one else has objected as far as my knowledge to the structure and where it is at. The reason that we placed it where it is at is that it is the only place that it can go in the yard on my property without having to tear down a large walnut tree or a large fir tree which helps to screen the Southpointe Condominiums and which creates a better atmosphere for the one objecting party to this request

.

Andy Kowal: That is all that I have to say unless you want me to go back into why we need it there and everything else and what it is.

AUDIENCE PARTICPATION

There was no audience participation.

DISCUSSION

Terry Morrone: If the Board considers granting a variance to allow a permanent structure I would request that the Board consider a separate permit be issued for this as it was not done in the past and that the structure be moved from the property line no less than 5 feet. The reason for that is that this would be consistent with the building code and that the building code requires any exterior wall within 5 feet be protected by a one hour fire resistance rating. This canopy does not have a one hour fire resistance rating to it and more importantly it is what goes into the structure than the structure itself. We want to try to prevent a spread of fire from one lot to the next by keeping it a distance away from the property line or protected will enable a certain amount of safety.

Chairman Reinke indicated that there was a total of 68 Notices sent to adjacent property owners. There was a total of 8 written responses received; 2 voicing approval and 6 voicing objection. Copies in file.

Andy Kowal: First of all there is a very large separation between the 2 structures, the neighboring structure Southpointe Condominium naturally has a very large side yard setback so it is not like there is 2 houses close to each other.

Chairman Reinke: I don’t think that is really pertinent to what he is looking at, because he is looking to have enough room to get around the building within your own lot line.

Andy Kowal: I understand that. The other thing, I believe and I am not sure, I believe that the canopy has a one hour fire resistance but I am not 100% sure. But, I believe that it does.

Vice-Chairman Brennan inquired of the Building Department. Has there been any complaints in the last 6 months on this?

Terry Morrone: Not that I am aware of.

Vice-Chairman Brennan: I ask that because there are some objections that are still discussing the issues of trash which was prevalent in our first hearing 6 months ago. There are two letters that are claiming that the specific location of this canopy is not 2 foot off of the property line. Can the Building Department tell me whether that has been verified? You have issued a permit, he put it up, has anyone ever checked? Do we know whether it is 2 foot or not?

Terry Morrone: No, the Building Department did not issue a permit. There was a permit issued originally for an addition to go onto the home. There was a separate permit, a temporary use permit applied for but denied and sent to the Zoning Board of Appeals. Once the approval was given by this Board, Mr. Kowal more or less used the permit for the addition to say it included the canopy and the Zoning Board of Appeal case variance. So a separate permit has never been issued.

Vice-Chairman Brennan: I am sorry to interrupt but I want to understand this whole thing. When we gave him a variance 6 months ago, he never came back to you to get a permit?

Terry Morrone: Correct.

Vice-Chairman Brennan: So he has been in violation for 6 months?

Terry Morrone: Technically.

Vice-Chairman Brennan: Not technically, the parting words of the Chairman at that time was that you have been granted your variance, see the Building Department for a permit. I believe those are the parting words. Did you go to the Building Department to get a permit?

Andy Kowal: I called the Building Department and I said did you want me to come down there and get a separate building permit and the lady said that it wasn’t necessary because it was on the minutes of the meeting.

Chairman Reinke: I find that highly irregular.

Member Meyer: You were operating under the impression that you had a permit, due to that phone call?

Andy Kowal: Yes, definitely. I called on it actually twice, because it struck me as funny that I did not get a piece of paper that said you have a permit. I have been in the construction business all of my life and I deal with permits.

Member Harrington: I have a couple of questions. First of all how did you resolve the helicopter issue and what did you do with it?

Andy Kowal: I stored it in a huge barn on my partner’s friends property in White Lake Township.

Member Harrington: Terrific, you were able to work that out. Now, what kind of boat do you have there now?

Andy Kowal: I have a 18 ½ foot Bayliner runabout; but I am probably going to trade it in for an 18 foot jet boat.

Member Harrington: And your intention would be to store your new boat that you are going to buy under this canopy 12 months of the year when it is not being used?

Andy Kowal: Either that or I might…..my boat has always been in Glen Arbor, Michigan. But I wanted to bring it here; but I hate transporting it back and forth all of the time. The only reason that it hasn’t been out here because it was under repairs and it just got out of repairs about 2 weeks ago. So I just left it at the repair shop up in northern Michigan. But, it is already now but in the spring time I would bring it down here and store it there and use it on the lake and then in the summer leave it on the lake.

Member Harrington: But you are aware that there is a ton of commercial storage space in the Novi area as well as the adjoining areas.

Andy Kowal: Sure, but I am also aware that everyone and their brother has a boat on their property in Novi and I should have the same opportunity.

Member Harrington: Thank you, you have addressed my question to Mr. Morrone. Is the issue the structure or storing the boat in the back yard? If this structure were not there, could the petitioner simply keep the boat in his back yard.

Terry Morrone: Yes, but it would have to be stored in the same location that an accessory building would be.

Member Harrington: Inside of the accessory building?

Terry Morrone: Not necessarily, but in the same location.

Chairman Reinke: In other words he would have to have so much space.

Terry Morrone: He would still need to have a safe space between the recreational vehicle and the adjacent property.

Member Harrington: Understood, but he has a canopy there now and the variance goes to the canopy not the storing of the boat?

Terry Morrone: If you allow the canopy, then the boat can go under the canopy.

Member Harrington: But if we don’t allow the canopy, can he store his boat there legally?

Terry Morrone: He still has to be 6 feet from the property line. That is the minimum distance that a shed would have to be.

Member Harrington: But otherwise, he could park his boat in the back yard?

Terry Morrone: Yes.

Vice-Chairman Brennan: You have not in this last 6 months since the variance was granted in April, have you had a boat under this canopy?

Andy Kowal: No. I have construction materials under the canopy.

Vice-Chairman Brennan: Is this part of the issue of the people complaining about trash?

Andy Kowal: No, the only recent complaint that I got from there was about the property line dispute. I got a letter from them about 2 weeks ago.

Vice-Chairman Brennan: We went to great lengths to give you a variance to store your boat here and now you tell me for the last 6 months you have stored construction material under this; in addition to not having a permit to do it.

Andy Kowal: You allowed us a temporary permit to leave up the canopy.

Chairman Reinke: We allowed you a temporary variance, we didn’t allow you a temporary permit.

Vice-Chairman Brennan: To store a boat.

Andy Kowal: To leave it up….there was an issue of leaving up a canopy. I put up the canopy without the knowledge that I needed a variance because I did not believe that it was a structure. As an engineer I still don’t believe that it is a structure as it is not fixed to the ground. That issue was brought up that I did not have to tear it down for 6 months. I am back here to ask that I can bring down my boat and store it in there year after year for an indefinite period of time. In the mean time I put whatever I want under that canopy, to keep it out of the weather.

Member Antosiak: That is contrary to the variance that was granted.

Andy Kowal: It is not contrary to the variance.

Member Antosiak: I am looking at the document that says the existing structure shall remain 2 feet from the property line to store a boat and not to store construction materials. To store a boat.

Andy Kowal: That is what this permit says.

Member Antosiak: This is not a permit, this is what the variance says.

Andy Kowal: OK, that is what this request is for.

Chairman Reinke: OK, stop. Address your questions and comments to me please. We are not going to get things going back and forth here on issues and points. Issues and points will be directed to the "chair". Comments by any Board Members on any discussion from this point will be directed to me.

Andy Kowal: Fine.

Chairman Reinke: I, myself, from the number of objections and the problems that have been created in this area with this and what it has been used for and it is not what was intended and what was presented to us; I see no hardship. I think that it is causing more problems than anything else and I cannot support the petitioner’s request.

Member Bauer: I cannot support this either, I think that it is self made.

Vice-Chairman Brennan: For the purpose of clarification, if indeed the petitioner’s request tonight is for a permanent or a temporary use permit and if that is denied we still have the issue of an existing canopy that is erected on the site without a building permit; is that a problem for the Building Department to address or for us to address?

Chairman Reinke: I, myself, would say that is the Building Department’s issue and not ours.

Moved by Member Bauer,

Seconded by Chairman Reinke,

THAT IN CASE NO. 98-089 THAT THE VARIANCE REQUEST BE DENIED DUE TO INSUFFICIENT HARDSHIP.

Roll Call: Yeas (6) Nays (0) MOTION CARRIED

There was no one present for this case.

Chairman Reinke inquired if there was any correspondence from Glenda’s?

Nancy McKernan: I have not heard from them.

Chairman Reinke: What is the Board’s pleasure?

Member Antosiak inquired of Terry Morrone: Did Glenda’s get a copy of the JCK and the Fire Department letters on the issues that we raised?

Terry Morrone: I don’t know if they have received the copies.

Member Harrington: My thought on the Glenda’s matter is as follows; normally it is my inclination that when someone doesn’t appear at the original hearing or a continued hearing to consider that as an abandonment of the petition. In this particular case, however, I don’t feel and will not make a motion to deny the variance because a large portion of what I was interested in seeing by way of written materials I did see and I was impressed. My concerns were addressed. Nonetheless, he is not here and if he were here I would be inclined to support a motion to approve. Nonetheless, I am aware of a historic difficulty with prompt and timely compliance and the like and the nonappearance by the applicant is consistent with that history over the period of years. It being the month of December and the holiday season, my sense is that I would be favorably disposed to consider this matter in January with or without the appearance of the petitioner. But, I would not deny it tonight; nor would I grant their selling of the salt as proposed either. I would be inclined to and I don’t want to use the word table….

Chairman Reinke: Are you suggesting that we postpone this to our next meeting?

Member Harrington: Yes, that we would postpone this.

Member Meyer: I would like to support that.

Member Bauer: Can a letter go out to the petitioner stating that this will be heard in January?

Chairman Reinke: Yes, snow, sleet or rain we will act on this in January.

OTHER MATTERS

Chairman Reinke indicated the Bylaw Committee report consisted of Mr. Harrington, Mr. Antosiak and myself. I must extend a great deal of credit to Mr. Harrington and his preparation in putting this together. I hope that everyone has had a chance to read through this and I would like to open it up to the Board for discussion, comments, critiques, criticisms, suggestions and so forth at this time.

Vice-Chairman Brennan indicated I have four minor notes and I can maybe direct them to Jim. Section 2.0 on Membership; the end of the sentence reads and we are speaking of the appointments but the resignation or the removal of the member from office and that is only by the Mayor, is that correct? Just a clarification.

Member Antosiak: By Council.

Member Harrington: The intention is that this Board does not have the power to remove a member. They are appointed and may be withdrawn by Council or the Mayor or by voluntary resignation.

Member Meyer: While we are still on that section it appears that there should be a word "as" instead of "a" decreed. In other words the appointment shall be for such a period of time as decreed.

Member Harrington: Correct.

Vice-Chairman Brennan: The next item was 2.1 and I understand what we are trying to say here with regard to absence. Is this to suggest that procedurally if one of us is missing at any meeting, that we have a quick vote that we consent that the party is missing?

Chairman Reinke: The intent of this is that we try to encourage attendance by everybody at all meetings. There are times and circumstances that come up that anybody can have that does not enable them to attend a meeting. Usually at any time when that happens that individual notifies Nancy about it and we are well aware of it before the meeting starts that this is going to happen and this is the situation that we are going to work with. We have never found this to be a problem. What we are looking at in this is if somebody just and maybe for lack of a better term, looses interest and maybe other things are more interesting and they just don’t show up for the meeting; that after 2 meetings we are going to take actions or make recommendations. That is what it is in there for.

Member Antosiak: It is important for Nancy before she makes her calls on Tuesday morning if someone is likely to be missed, because she will encourage the others.

Vice-Chairman Brennan: My next item is 8.1 towards the back and I am glad that we are addressing this. This is the issue of asking for a mock up go up at least 7 days prior to the hearing of that variance. Is that to say now that if we have somebody who is putting this mock up on the day of the meeting that we are not going to hear that case and that we will bump it a month? Or is it our discretion?

Member Antosiak: I would say that it is our discretion.

Chairman Reinke: It is our discretion. What we are trying to do is to say that to give fair consideration or to give us the time to consider it, that it should be up 7 days before the Meeting. If it is put up this morning for a meeting tonight, I might not be able to get there to look at the mock up prior to coming to the meeting.

Vice-Chairman Brennan: Is this type of information relayed to the petitioner typically?

Vice-Chairman Brennan: On the very last page, I think that Mr. Meyer is the secretary. Although I will say that I talked to the Mayor and the Mayor was pleased to hear that this was being drafted and as soon as it was complete to please get a copy to the City Clerk immediately.

Member Meyer: In my reading of it, on Section 8.4 once again I was reading it from the view point of the flow and here it says if an applicant does not appear in support of the appeal the ZBA may move to dismiss the appeal for reasons "on" nonappearance and I thought that the word ought to be "of" nonappearance.

Member Harrington: You are correct.

Member Meyer: Those were the only 2 that I saw. The actual content of the guide lines were to the point and very much appreciated. I think that they should be given to every person who comes on this Board to be aware of before they are sworn in. That way they know and particularly if they are an alternate that their comments and insights are respected and appreciated even though they may not be able to cast a vote when the full 6 Member Board is present, unless one Member declines from voting because of conflict of interest.

Member Bauer: I think that under secretary item 3.3 that it should say they issue the oath for the applicants who are going to participate.

Member Bauer: I mentioned to Vern before that some of these items are in the ordinances. One that by ordinance is that if we turn down a case tonight they automatically have 20 days to request a rehearing if they come up with new information.

Vice-Chairman Brennan: Section 9.1 deals with appeals, to appeal within 30 days and the applicant shall have the appeal of right to the ZBA within 30 days.

Member Harrington: Mr. Bauer is it your memory that the ordinance of the City does permit the applicant 20 days for a rehearing or a newly discovered hardship or the like?

Member Bauer: It was in the ordinance a long time ago and we have had people do this; not many but a few. It must be something new and not hashing over the same thing.

Member Harrington: New evidence that was not available and in the exercise of due diligence could not have been available at the initial hearing, is that correct? It is not because they did not do their homework, correct?

Member Bauer: Yes, new evidence and when they do come it is still our right to accept or deny it. I think that we have only had that in a few cases.

Member Antosiak: The ordinance says that the Board may in it’s discretion grant rehearing of any decision to consider additional matters related to the relief requested when such rendering is requested within 20 days of the Board’s initial decision.

Member Harrington: If the it is the Board’s sense that we should reiterate these in the rules, I don’t have a problem with that. One of the things that a committee attempted to do was to make clear that these rules are to be read consistent with the ordinances of the City and are not intended to enlarge or contract the powers the Board. That rehearing rule would of course be in effect, but for tidiness it probably makes sense to add that language to these rules.

Member Bauer: I think that this is the best document that I have ever seen.

Chairman Reinke: That is very true.

Member Meyer: I agree with you Mr. Bauer.

Member Meyer: On that particular one; 20 days or 30 days – is 20 business days or 30 business days?

Chairman Reinke: Twenty days.

Member Meyer: I am playing with that one. It seems to me that maybe when the ordinances are revisited periodically they might want to put down the word business days.

Member Harrington: Thank you for the thanks, but this was a collegial effort between Mr. Antosiak, Mr. Reinke and myself. We did spend significant time together as a group going over the old rules and drafts and redrafts to put this into a form. So, I will accept the thanks on behalf of the subcommittee.

Member Harrington: With respect to approval of the rules, I would move that the Rules of Procedure be approved by the Board this evening subject to the amendments that we have discussed, the typographical, the amendments, the 20 day rule as discussed and that a formal copy be signed at our next Meeting in January and that these rules also be presented to the Mayor for review and comment and Don has mentioned that he wanted to send a copy over to Dennis Watson. If Mr. Watson has some concerns that he wants to bring to our attention that is fine and if he is silent that is fine too. If these rules be deemed effective if approved and signed by the Chairman and Secretary at the January Meeting. That would be my motion.

Seconded by Member Bauer.

Chairman Reinke: That is moved and seconded to follow Mr. Harrington’s directions concerning the revisions to the Rules and Procedures of the Zoning Board of Appeals.

Roll Call: Voice Vote All Yeas MOTION CARRIED

ADJOURNMENT

The meeting was adjourned at 8:45 p.m.

Date Approved _ _

Nancy C. McKernan

Recording Secretary