Pittsfield Charter Twp, Michigan

REGULAR MEETING January 6, 2003 6:30 P.M. _____________________________________________________________________________

PITTSFIELD TOWNSHIP ZONING BOARD OF APPEALS MINUTES ______________________________________________________________________________ Members Present: Kenneth Brostrom, Robert Grosshans (arrived at 7 p.m.), Ishwar Naik, Edward Resha and Alayna Stagg

Members Absent: None

Others Present: Michael Grady, Bruce Laidlaw, Township Attorney, Ismal Habhab, James Walter, Don Marhofer, Todd Qautro, Robert Jacobs, Maureen Walters, Rachael Pries Bell, Rod Arroyo, Barbara Schulke, Leslie Adiska, Agus Kilgore, William Anderson, Chris Bell, Kathy Bell, Mary Jane Bell, Zoning Administrator Mark Spencer and Marge Burkheiser, Recording Secretary

1.0 Call Meeting to Order/Determination of a Quorum

Chairperson Naik called the meeting to order at 6:37 p.m. and determined a quorum was present.

2.0 Approval of Agenda

Motion by Member Resha to approved the agenda as presented.

Motion by Member Brostrom to amend the previous motion to move item 5.0 (Election of Chairperson, Vice Chairperson and Secretary) to follow item 7.2, supported by Member Stagg.

MOTION CARRIED

3.0 Communications and Announcements

Chairperson Naik stated one member was running late and asked the applicants if they would like to postpone their application until the next ZBA meeting, until all members were present. He also stated there is the possibility of a split vote with one person missing.

1. Jacobs, representing the applicant for Arbor Oaks, agreed to proceed.

An unidentified person stated he was with Golfside PetroMart and the applicant was on their way. He didn't want to agree to proceed or agree to postpone the application.

Member Resha suggested the Board recess until the arrival of Mr. Grosshans.

Members very briefly discussed a recess.

Motion by Member Resha, supported by Member Brostrom, to move item 7.1 to become 7.2 and item 7.2 to become 7.1.

MOTION CARRIED

4.0 Items from the Floor

Chairperson Naik briefly explained the order of presentations for everyone present.

The Zoning Administrator also gave some clarification on procedures.

Chairperson Naik queried the audience if they were any items to be discussed other then the items on the agenda.

There were none.

5.0 Election of Chairperson, Vice Chairperson and Secretary

Item moved to follow item 7.2 of the agenda.

6.0 Old Business

None.

7.0 New Business

7.1 ZBA 02-08 Golfside PetroMart [submitted for sign variance]

Item moved to follow item 7.2.

7.2 ZBA 02-07 Arbor Oaks [submitted for a variance to allow development with R-1B Standards in a R-1A District]

Robert Jacobs, representing the applicant (Arbor Oaks, LLC/S. R. Jacobson Development Corporation) introduced: Bill Anderson of Atwell-Hicks, Rod Arroyo, of Birchler Arroyo, and Don Marhofer, of Arbor Oaks LLC. Mr. Jacobs stated that a recent court of appeals case, gave ZBA's the ability to grant a use variance to relieve the applicant of certain hardships. Mr. Jacobs stated they were told by the Township that water and sewer was available to the property before they purchased it and applied for a rezoning of the property. He continued stating that at the time they filed the rezoning petition it was consistent with the Master Plan and since that time, it was revised, with the assistance of LSL. He said the area was reclassified in the Comprehensive Plan [dated July 11, 2002] and this property would no longer be served by water and sewer.

1. Jacobs said that Atwell-Hicks conducted a study and determined there was sufficient [sewer and water] capacity to serve the property; and the removal from the water and sewer district area was not the doing of the applicant. He continued and stated the applicant went to the Township Planning [Commission] and to the Township Board meetings and objected to the change. He said McDowell Associates and Atwell-Hicks both have determined the soils on the property were not suitable for a single family subdivision using septic fields, as well as by the standards of Washtenaw County.

2. Jacobs then stated that the applicant requested the density be in accordance with the prior Comprehensive Plan of 2.5 units per acre (R-1B), but the Township rezoned the property to R-1A which requires that well and septic be used to service this property. Mr. Jacobs said "this amounts to a taking of the property".

Then Mr. Jacobs said the Court of Appeals has stated that there are four conditions that need to be met for the ZBA to grant a variance: 1)--The property can not be reasonable used in the matter consistent with the zoning. 2)—The landlord's plight are unique circumstances and not the general conditions of the property. 3)--The use authorized will not alter the character of the locality. (He added that he could not see what is being altered; there is an adjacent Class A road and the surrounding area has water and sewer.) 4)--The hardship is not the applicant’s fault. Mr. Jacobs continued and said he feels the properties' development is consistent with the Master Plan [Comprehensive Plan] before it was changed and with the surrounding area and experts agreed the property can not be used for farming.

Chairperson Naik interrupted Mr. Jacobs stating most of the information being presented has been already presented to the Members and to move the presentation along.

1. Jacobs acknowledge Mr. Naik and continued stating studies have shown no traffic concerns and the findings of Atwell-Hicks have shown there is capacity for water and sewer therefore the property should not be deprived of service. He said Atwell-Hicks has also stated that the property can not be used under an R-1A District or support well and septic systems. Mr. Jacobs continued stating Mr. Spencer's report said the requested rezoning would only have a minor fiscal impact upon the Township, property is consistent with the old Comprehensive Plan and that the water and sewer line have sufficient to serve the property. Mr. Jacobs ended his comments by stating without the variances requested, the property can not be use for any viable economical purpose and the variance must be granted for the applicant to receive a reasonable return on his property. Zoning Administrator Spencer stated Mr. Jacobs covered the history of the application well and said they have asked for a use variance to allow 126 units to be developed in accordance with the R-1B Single Family District. He said the State Court of Appeals had determined that the ZBA can act on these matters and grant a use variance. He continued and said the Township Staff and Planning Commission have not reviewed any specific plans for a certain number of units and he requested the specific number of units be left out of any discussion.

Zoning Administrator Spencer said Staff did not dispute the following: 1)--Water and sewer lines with sufficient flow capacity exist to serve the property along Platt Road. 2)--(stated the following was not in his report) The YCUA sewer plant has sufficient capacity and the Township's current sewer and water usage is below the contacted capacity for water and sewer service. He continued and said if all of the available property that was [in the water and sewer district was] built upon, the Township would be at or over contracted capacity. 3)--Staff did not dispute the fact that properties in the surrounding areas to the north, northwest, and west had densities similar to the R-1B District and the 1995 Comprehensive Plan did call for 2.5 units on this property. 4)--He further stated Staff added that grain farming would not be an economically feasible use on this property but that specialty farming may be profitable. 5)--The fiscal impact[of this proposed use] would be minor on the Township's budget.

Zoning Administrator Spencer said the applicant contents that they could not make a reasonable return on the property if they abided by the R-1A District requirements. He then stated the applicant purchased the property for $390,000 [$6,500/acre] in July, 2001 and vacant property, about one acre in size, was selling for $50,000 to $125,000 between 1998 and 2002 and that these properties did not have public water and sewer. He said that since the township did not receive any development cost estimates Staff did not believe enough evidence had been presented to say an adequate profit could not be made. He then stated that the soil tests did not indicate if “perk” testing was ever done and the Township did not receive any information from the County Health Department stating drain fields were denied. He then said the County has not said the applicant could not have well and septic on the property. He then discussed the zoning of the surrounding area and stated the proposal was not consistent with the density on the properties to the south and east. He said when the current Comprehensive Plan was developed, a transition area was planned for between the two areas and this was one reason for one acre zoning. He said Staff felt one acre zoning would do substantial justice to the residents of Pittsfield Township; it matches the Comprehensive Plan, and blends in well with the lower density residential neighborhoods to the south. He said the Township attorney has stated the applicant did not have a vested right to obtain 2.5 units per acre for zoning in this area. The reduction of sewer and water service district was presented to the Township [Board] in a May 2000 waste water flow study prepared by the Township Engineer. On September 25, 2001 the Township Board passed a motion, for utility purposes, to use that plan "…to reduce the size of the sewer service area to match the Township's contracted sewer capacity with YCUA", and said this predates the applicant's application to rezone this property. On December 2001, Township Staff and Administration met with the applicant an advised them this property was not in the water and sewer district. May 2002, a draft of the Comprehensive Plan was presented that excluded from the water and sewer service district and in July 2002 the Comprehensive Plan was adopted and it excluded this property from the water and sewer district. He said after reviewing the traffic studies by Birchler Arroyo Associates, he found that the studies did not take into account the increased traffic that would be generated by the approved Rosewood Village (CSPA 98-47) and Rolling Meadows (SP 02-01) plan and the uses proposed on the Burton-Katzman property; nor did it consider the unknown amount of traffic that could be generated by the State facility, currently under construction in York Township.

Zoning Administrator Spencer said that the applicant quoted Carl Schmult's report [dated August 8, 2002] as stating "the petition is consistent with…", the quote was not complete. Mr. Spencer read the complete statement from Mr. Schmult's report including, "However, these areas are in the Township's water and sewer service district. R-1B is not appropriate outside of this district. The petition is not consistent with the existing residential uses and AG zoning to the east, south, and southwest."

Bruce Laidlaw, Township attorney, stated that until a few years ago the ZBA could not grant use variances. He then stated a lawsuit was filed and the outcome was that the Court of Appeals said the ZBA could grant use variances. He read part of Act 125.293 which states in part "…the ZBA may vary or modify any of its rules or ordinances so that substantial justice is done". He also stated that they do have the authority to change the rules and the standards are not the same as for the Township Board. They can only change the Zoning Ordinance and the issue before them is sewer service which is not a zoning issue and they do not have the authority to change it.

Chairperson Naik asked if Mr. Laidlaw would elaborate on the standards used.

Bruce Laidlaw stated that the standards should be within the spirit of the ordinance, public safety and substantial justice. He said that this is not a rezoning issue; you are to find if is there is real a hardship regardless of how it applies to the Comprehensive Plan. This is broad statement but these would be the standards.

Chairperson Naik opened the floor for comments.

Leslie Adiska of 3940 Steamboat, stated that Mr. Spencer mentioned about when the Township was totally built out, what would happen if at or over capacity. Would the Township contact more services?

Zoning Administrator Spencer stated the Township contacts for a certain amount of capacity and we pay a large sum for it. He said to increase the amount of service contacted through YCUA, the amount of money is an unknown amount. If property is added to the service areas, others would have to be removed.

Jim Walter, Township Supervisor, stated that the current contracted capacity was negotiated by the previous Board and YCUA, at that time, was asking $5,000,000 for each million gallons per day of capacity, for expansion of cost and they are not interested in increasing current capacity. He said the Board felt current capacity is adequate. He asked members to look at traffic counts, and the added proposed units in the area, stating he felt traffic will double on Platt Road. He further stated responsible planning looks at water and sewer service areas and felt the Planning Staff and Board have made a wise decision.

Member Resha inquired when the current contact expires.

Jim Walter stated it is hard to reopen the contact and he did not feel the Township could get a new capacity contract for approximately ten years. The cost would be to support the infrastructure of YCUA.

Jim Walter, Members and Staff briefly discussed the public meetings and community input obtained for the development of the current Comprehensive Plan.

Bill Anderson, of Atwell-Hicks, stated if every plan the Township has received was built, usage would be about be about 60% of capacity and the Township might need additional capacity in 10-20 years. He also stated he felt the Township is doing backward planning, by taking capacity and building to it.

Member Resha interrupted Mr. Anderson and stated that this capacity was inherited.

Bill Anderson continued by stating that you are reducing zoning to match capacity and if more capacity is needed, the fees are passed on to the developer, with capital connection fees and not the current water users. He said the residents would not be paying for development and maintenance is done by the fees paid for water and sewer service.

Ken Brostrom stated he had a several questions related to water and sewer. He asked Mr. Walter if he would respond to Mr. Anderson's comments. He also asked if the previous statements were accurate.

Jim Walter stated he was not able to answer the question but not all development cost can go to the developer.

Ken Brostrom speaking to Mr. Jacobs stated they have been told they have the authority to change the zoning but that Mr. Laidlaw stated they do not have the authority to change the water and sewer service area.

1. Jacobs stated you [the ZBA] have the power to relieve a hardship that is not self imposed. He said that letters or other methods of communications were not sent to the affected property owners stating they were losing their sewer and water. He restated he felt the Township does have capacity to grant justice to the applicant. He also stated the applicant is aware the ZBA could not grant approval for the proposed 126 units. He further said there is water and sewer by the property, YCUA has said there is capacity. He further added they did do 12 pits and 12 borings and would be happy to share the reports.

Ken Brostrom interrupted stating the word "impossibility" has been used numerous times and that Mr. Jacobs has said repeatedly that this property can not be used with well and septic fields and did not address Mr. Spencer's comments on "perk" testing.

1. Jacobs stated the only objection was from Mr. Spencer stating we did not do a perk test.

Zoning Administrator Spencer mentioned we have not seen the report but from what was stated the pits were dug down to between 7 and 12 feet. He than stated the County recommended excavations be done down to 20 feet.

Member Resha stated the information provided did not show depths and other information pertaining to a perk test. He asked why the applicant is against doing perk tests.

1. Jacobs replied this is 60 acre lot and they would need to do 60 perk tests to make a determination. He was told by his the Engineers that the soils were of such poor quality they did not want to incur the expense of doing the test. He then asked if Member Resha knew what they were.

Member Resha replied he did; he use to do them.

Roy Arroyo stated traffic questions were similar to those asked at the Planning Commission. He also stated an area study was usually done at site plan level, not for a rezoning. He also stated they offered to do additional studies for the Planning Commission but that they did not request any further studies.

Mike Grady, of 3320 Merritt Road, stated the whole area has changed since moving here. He stated he has a well and septic system with a 16 foot deep [drain]field. His neighbor's is 18 feet deep and neither of them have any problems. He further stated the area can be on septic. It is a nice area and felt the subdivision was being jammed down their throats.

Zoning Administrator Spencer, read part of the report from McDowell concerning twelve test pits and they stated that they [were dug] at depths varying from 5 feet 6 inch to seven feet.

Bill Anderson, of Atwell-Hicks, stated they referred to [Washtenaw] County list stating the soils are not suitable and that McDowell used a grid like pattern on site for testing. It has been determined a septic field is not appropriate but they can look at alternative systems.

Motion by Member Resha, supported by Member Grosshans, to close the public hearing.

Discussion follows.

Bob Grosshans inquired that if 15 feet is the standard and not the 20 feet; if sand was found at 18 feet, would they be able to put in septic field.

Ken Brostrom asked Mr. Grady when the house was built.

Mike Grady replied 1955 and they have had no problems with the system.

Member Resha stated that if the soil was not good at seven feet they should have drilled further down. Other homes in the area have good systems using between twelve to eighteen feet and felt the report was not viable since they did not drill deeper.

Bill Anderson stated they drilled to 15.5 feet and they concluded they could not use a conventional system.

Chairperson Naik asked Mr. Laidlaw to restate the authority of the Board [ZBA] and asked if a use variance is within their authority.

Bruce Laidlaw stated you have the power to vary the Zoning Ordinance. The Township can not be compelled to provide sewer and water service. Chairperson Naik stated the issues are zoning and they will go through the findings.

Bruce Laidlaw stated the findings have to be a hardship, whether they are self created and to address the standards.

Ken Brostrom asked if a more through traffic study is possible and whether the study was done at various times of day. He further stated they needed to think of the residents in the area.

Member Stagg made the general statement that the more people, there would be more traffic.

1. Arroyo gave a brief explanation of how and when the traffic study was done, including the dates and times it was conducted.

Zoning Administrator Spencer stated he wanted to clarify the up to use of 20 feet depth for a [drainfield] was provided by the [Township] engineering department and that it was confirmed with the County.

MOTION CARRIED

Chairperson Naik requested a motion for this variance.

Motion by Member Brostrom, supported by Member Stagg, to deny ZBA 02-09 Arbor Oaks.

Chairperson Naik read the Findings.

Before the Zoning Board of Appeals can grant a variance it must make findings that the following requirements from Section 60.04 (B) of the Zoning Ordinance are met:

1. That strict compliance with the restrictions governing area, setbacks, frontage, height, bulk or density would unreasonably prevent the owner from using the property for a permitted purpose, or would render the conformity with such regulations unnecessarily burdensome.

   The Members answered not true. (no discussion)

2. That the granting of a variance would do substantial justice to the applicant as well as to other property owners in the district, or whether a lesser relaxation than that applied for would give substantial relief to the owner of the property and be more consistent with justice to other property owners.

   The Members answered no. (no discussion)

3. That the plight of the applicant is due to unique circumstances of the property and not to general conditions in the area.

   The Members answered no. (They stated there was nothing unique to the area)

4. That the plight or problem is not self-created.

   The Members answered no, it is self-created. (The members agreed this is self-created)

5. That no non-conforming use of neighboring lands, structures, or buildings in the same district, and no permitted use of lands, structures or buildings in other districts shall be considered grounds for the issuance of a variance.

   Not part of the discussion.

6. That the variance observes the spirit of the Ordinance, secures public safety, and does substantial justice.

   The Members answered no. (no discussion)

ROLL CALL

Kenneth Brostrom Yes Robert Grosshans Yes Ishwar Naik Yes Edward Resha Yes Alayna Stagg Yes

MOTION CARRIED (passed)

Item 7.1 moved to follow item 7.2.

7.1 ZBA 02-08 Golfside PetroMart [submitted for sign variance]

Todd Quatro, engineer for the applicant, stated the previous variance did not include the sign.

Planner Goddard reviewed her report relating some of the past ZBA requests concerning this site. She stated this request was for a reduction of the sign setback requirement to 9.45 feet from the right-of-way; adding if the required 13 feet was imposed the sign would be located in the main driveway of the site. She further stated the proposed sign would be approximately 32 feet in area and have two sides. She further stated that three logo type signs have already been installed without proper permits.

Todd Quarto stated he was unaware that the logo type signs were not allowed with out permits.

Member Grosshans asked if the 9.45 feet is on Golfside and would it be a hindrance to traffic. Planner Goddard replied yes; the proposed sign is on Golfside and it meets the setbacks on Washtenaw. It is located outside the sight triangle [clear area] for both roads.

Member Grosshans asked if signage would be on one side of the sign.

Planner Goddard stated the proposed signage would be on both sides and the square footage allowed was based on the face of one side and not both sides.

Ken Brostrom inquired for clarifying that you would be able to see the prices posted from both roads.

Todd Quatro stated yes and said they were hindered by the existing footings and did not have much area to work with.

Zoning Administrator Spencer stated the Members could grant the variance and add reasonable conditions to make the variance more acceptable to the neighborhood. In this case, he continued, Planner Goddard is recommending that since the proposed sign is so close to the road, the proposed size is acceptable.

Planner Goddard stated this sign [size] would be unique to the site.

Chairperson Naik asked if this was acceptable to Staff.

Planner Goddard replied it was.

Todd Quarto stated the company will not allow the station to open without the logo present and would not allow the fuel to be delivered without the logos. There is the possibility two logos could be removed from the canopy.

Zoning Administrator Spencer reminded the applicant that there are to be no wall signs in addition to the one canopy sign and that windows coverage be no more then 25 % of available window space. He also reminded the applicant that logos are not permitted on the pumps.

Member Naik stated the applicant repeatedly has been coming to ZBA for variances.

Todd Quarto replied this has been a difficult site.

Todd Quarto and Staff discussed various types on signs and postings that would be allowed on the gas pumps.

Motion by Member Grosshans, supported by Member Resha, to approve ZBA 02-08 Golfside PetroMart and grant a variance to allow a 9.45 foot front yard and setback [from Golfside Road]for the location of a ground sign with the following conditions:

1. That all existing signs are removed from the site and no sign shall be installed without proper application and approval from the Township, including said ground sign.

   1. The size of the ground sign shall be limited to a maximum of 35 square feet.

Chairperson Naik read the Findings.

The following is a review of Section 60.04 paragraph B. “Prior to granting a variance the Board of Appeals shall make findings that the following requirements have been met by the applicant for the variance” for each request.

1. The Board must determine if adhering to the 13-foot front yard setback for a sign is burdensome.

   The Members answered yes.

2. The Board must decide if granting this variance would do substantial justice to the applicant and other property owners.

The Members answered yes.

1. The Board must determine that their plight is due to the unique circumstance of the property.

   The Members answered yes.

2. The Board must decide if the problem is self-created.

   The Members answered no.

3. The Board must not consider other non-conforming uses as grounds for granting this variance.

   The Members answered they did not.

4. The Board must decide if granting this variance is in the spirit of the ordinance.

The Members answered yes. ROLL CALL

Kenneth Brostrom Yes Robert Grosshans Yes Ishwar Naik Yes Edward Resha Yes Alayna Stagg Yes

MOTION CARRIED (passed)

Item 5.0 moved to follow 7.2 of the agenda.

5.0 Election of Officers

Motion by Member Brostrom, supported by Member Resha, to nominate Member Naik to continue for Chair.

Motion by Member Resha to close the nominations for chair.

Motion by Member Grosshans, by affirmation we nominate Ishwar Naik.

Motion by Member Resha, supported by Member Brostrom, nominates Member Grosshans for Vice-Chair.

Motion by Member Resha, supported by Member Brostrom, to close the nominations for Vice-Chair.

Motion by Member Grosshans, supported by Member Resha, to nominate Member Stagg for Secretary.

Motion by Member Grosshans, supported by Member Resha, to close the nominations.

Motion by Member Resha, supported by Member Resha, to elect by affirmation the above nominations.

MOTION CARRIED (Chair Naik; Vice-Chair Grosshans; Secretary Stagg)

8.0 Zoning Administrator’s Report

None.

9.0 Secretary’s Report

None.

10.0 Chairperson’s Report

None.

11.0 Approval of Prior Minutes

11.1 Minutes of July 15, 2002.

Motion by Member Resha, supported by Member Brostrom, to approve the minutes of July 15, 2002, as presented.

Member Grosshans noted a correction on page two that his name was listed without comments and inquired why.

His name was there in error and the comment by Zoning Administrator Spencer was added to reflect his reply to the previous statement.

Member Stagg noted an error in the date of the header on the pages of the minutes. This should be corrected to the date of the meeting.

Members briefly discussed the minutes.

Member Grosshans amended the previous motion to read; "to approve the minutes of July 15, 2002, as amended, supported by Member Resha.

MOTION CARRIED.

12.0 Adjournment

Motion by Member Stagg, supported by Member Resha, to adjourn the meeting.

MOTION CARRIED

Chairperson Naik adjourned the meeting adjourned at 8:40 p.m.

______________________________________________________________________________ s/Alayna Stagg, Secretary April 2, 2003