REGULAR MEETING August 23, 2004 6:30 P.M.

_____________________________________________________________________________

PITTSFIELD TOWNSHIP ZONING BOARD OF APPEALS MINUTES

______________________________________________________________________________

Members Present: Robert Grosshans, Edward Resha, Ishwar Naik, Alayna Stagg and Kenneth Brostrom.

Members Absent: None.

Others Present: Kelly Eicher, T. Neumann, Allen Philbrick, Zina Dennis, Jim Harmon, Larry Siden, Janet Dillingham, Jerold Lax, Mei-Fu Sheng, Cheryl Thornton, Tom Thornton, Victor Lillich, Thomas Meagher (arrived during the executive session), Assistant Planner Jennifer Black, Zoning Administrator Mark Spencer, and Recording Secretary Marge Burkheiser.

1.0 Call Meeting to Order/Determination of a Quorum

Chairperson Naik called the meeting to order at 6:38 p.m. A quorum was present.

2.0 Approval of Agenda

Motion by Member Resha, supported by Member Brostrom, to approve the agenda, as presented.

MOTION CARRIED

3.0 Communications and Announcements

None.

4.0 Items from the Floor

None.

5.0 Executive Session with Township Attorney to Discuss ZBA 04-06

Motion by Member Grosshans, supported by Member Resha, to adjourn to an executive session, with the Township attorney.

MOTION CARRIED

Chairperson Naik adjourned the meeting at 6:40 p.m.

Chairperson Naik called the meeting back to order at 7:50 p.m.

6.0 Old Business

6.1 Amend Minutes of May 10, 2004

Motion by Member Grosshans, supported by Member Stagg, to move Item 6.1 to follow Item 7.1.

MOTION CARRIED

7.0 New Business

7.1 ZBA 04-06 Rosewood Village LLC

[submitted to appeal the Zoning Administrator's decision]

Zoning Administrator Spencer requested that his report be attached to the minutes. He then reviewed his report. He stated the applicant has applied for an appeal to his administrative decision to stop issuing zoning clearances for the Rosewood Condominium project. He said on April 8, 2004 he sent a letter (to Rosewood) stating that he would not issue any “Zoning Clearances for Building Permits or Certificates of Occupancy on this site until your firm can provide evidence of legal access to the site.” He mentioned that at the Zoning Board of Appeals hearing on July 19, 2004, the ZBA determined that the appeal was untimely. He said he still believes this is the correct position. He mentioned a reversal of his decision would mean there were no violations under the Zoning Ordinance, and the permits and zoning clearances would have to be issued, and the project would continue even with the Washtenaw County Road Commission (WCRC) stating no one has legal access to the site. He added that items 13 and 24 in the appeal (from the applicant) do not need to be considered because they are not administrative decisions.

Zoning Administrator Spencer continued and stated that the matter of the appeal is a pending lawsuit against the Township. He highlighted the history of events listed in his report. He mentioned on March 24, 2004, James Harmon from the WCRC sent a letter stating that Rock’s temporary permit had expired, and they no longer had legal access to the project. He said this project also did not have legal access from any public roads. He said Section 52.02 A of the Ordinance states, “Each building must have access from a public street or a private street approved by the Township Board.” He said that without WCRC approval they did not have legal access to the project. He said a notice was sent to the applicant who applied for the building permits and the certificates of occupancy (C of Os).

Zoning Administrator Spencer stated the WCRC issued temporary permits because they believed the negotiations were going in the right direction, and those permits expired on April 29, 2004. He said Rock Construction and Rosewood, LLC have known that no new permits would be issued to the buildings until the WCRC issues were resolved. He said staff inspected the site and found that 12 units were being occupied without C of O’s. He said two of the petitioners, Terry Neumann and Janet Dillingham, matters were resolved the same day they requested temporary C of Os. He mentioned both of the residents applied for temporary C of Os, although those have expired. He added they sought to renew them on July 21 (2004). He said those temporary C of Os were issued, although as of August 20, 2004 those permits have not been picked up or paid for. He said Shirley Rickerman of the Building Department notified the residents that the permits could be picked up.

Mr. Victor Lillich, Township Attorney, stated the WCRC has to issue their permit, which provides legal access to public roads, to resolve this issue.

Chairperson Naik asked if Terry Neumann and Janet Dillingham applied for the C of Os before or after they moved into their homes.

Zoning Administrator Spencer stated the temporary C of Os were issued originally to Rock Construction for those two units. He said those expired and they needed to be renewed to still maintain legal occupancy of the buildings. He mentioned the two individuals (Terry Neumann and Janet Dillingham) came in to renew the C of Os. He said he elected not to take enforcement action against them or the other individuals that had temporary C of Os.

Member Brostrom asked if the Township notified them (Terry Neumann and Janet Dillingham) that the C of Os had expired.

Zoning Administrator Spencer stated this is a building department function, and he is not sure if they notified the builder or the homeowner.

Motion by Member Stagg, supported by Member Resha, to add Zoning Administrator Spencer's report [dated August 19, 2004] to the minutes.

[Attachment #1]

MOTION CARRIED

Jerold Lax, attorney for Rosewood Village, stated Terry Neumann and Janet Dillingham did not know that their C of Os were approved and available. He said after listening to Zoning Administrator Spencer’s presentation, it seems odd that he said various things cannot be done because the WCRC has not approved the permits, but it seems possible, out of compassion, not to threaten the residents that they will be removed from their homes. He added that if either people desire to live there they should be entitled to the same degree of compassion. He said if the developer was allowed to dig basements, which is what the building permits are needed for, the developer could start to provide homes for the residents who want to live there. He said if Zoning Administrator Spencer could renew the homeowners C of O’s without their knowledge, it does not seem right to deny the permits based on what the WCRC did or did not do.

Member Grosshans asked if Mr. Lax was asking the ZBA to revoke the C of O’s for these people (Terry Neumann and Janet Dillingham).

Mr. Lax replied no. He stated it does not seem to be a significant legal problem for those C of Os to be issued. He said Zoning Administrator Spencer has determined not to issue C of Os because of the WCRC’s position. He said this conclusion is based on Article 52 of the Zoning Ordinance, which talks about access to public roads. He said Section 52.02-A states, each lot in the principal building shall have vehicular access from public street or private street approved by the Township Board. He said the Township Board approved the site plan in 2002, and the developer provided the exact access that was on that plan. He said if it is the position of Township Officials that the site plan has been violated, the Ordinances provide procedures for revoking site plans. He said Section 55.16 indicates that if there is a site plan violation, the Planning Commission after a hearing, can consider revocation of a site plan. He said the provisions that Zoning Administrator Spencer is relying on do not require him to refrain from issuing the permits, and indeed for him to act in this way is superceding the Ordinance. He said the Ordinance does talk about access; however it does not talk about access as approved by the WCRC.

Member Stagg stated Zoning Administrator Spencer said there is a difference between an overall plan being acceptable, and permits being issued. She said they (Rosewood/Rock) were given permission to do this (start construction) although the permits were not issued. She added that it was thought in good faith, that the things were going to be done.

Mr. Lax stated the language Zoning Administrator Spencer relies on talks about plans approved by the Township Board. He said the Township Board approved the plans.

Member Resha stated the Township Board approved the plans with conditions. He said one of the conditions was to have approval from the WCRC.

Mr. Lax stated this issue does require some further discussion about the negotiations with the WCRC.

Member Stagg stated the ZBA is not the WCRC.

Mr. Lax agreed. He said the (ZBA) is not the Road Commission, although they are the Township, which enforces its own Ordinances, and has some independence in determining what constitutes compliance with Road Commission requirements. He said Rosewood is prepared to build precisely the same entrance the WCRC has asked them to build. He said they have posted a $435,000 bond to insure the work will be done. He said the reason the work has not been done is because the WCRC has not issued a permit. He said the WCRC will not issue a permit until the developer agrees to build the road that the WCRC wants developed, and agrees in advance that the developer waives their opportunity to ask any questions about the cost of the road. He said the changes in the plans that the WCRC has asked for would cost the developer approximately $80,000 in addition to the $435,000. He said Rosewood wishes to maintain the right to question whether they should have to pay that $80,000. He added this is why the WCRC has not issued them a permit.

Chairperson Naik asked Mr. Lax if the WCRC singled out Rosewood for this requirement.

Mr. Lax stated this is a process that the WCRC uses.

Chairperson Naik stated this is a matter between the developer and the WCRC.

Mr. Lax stated this is relevant to the ZBA. He said if the WCRC is acting in an unreasonable manner, there is nothing in the Ordinance that requires someone to abide by the WCRC standards. He said there is nothing in the spirit of the Ordinance to allow anyone to withhold the permits under these circumstances.

Member Stagg asked Mr. Lax if Rock Construction wants to comply with what the WCRC is saying, but they want to say how much they want to spend. She asked if Rock Construction feels the WCRC is asking for too much money.

Mr. Lax stated this is true in short. He said it is inappropriate for the WCRC to require any developer to give up the right to make the argument (regarding costs), and therefore the Township does not have to withhold the permits because the WCRC insists on this process. He said they want to build the road the WCRC wants.

Member Resha read Section 58.18, regarding violations of a site plan. He said it is a requirement of the Planning Commission to have both WCRC and Washtenaw County Drain Commission (WCDC) approval before a final site plan is issued. He said they (the applicants) are also informed that if at any time those approvals are withdrawn, the (Township) Planner has the right to stop all permits and C of Os. He said the Ordinances were followed by the (Township) Planner.

Mr. Lax stated he believes that the (Township) Planner was under no obligation to do this.

Member Stagg asked if Mr. Lax believes the (Township Planner) should not have issued the temporary C of O’s to these people (Terry Neumann and Janet Dillingham).

Mr. Lax stated he believes that (the Township Planner) did behave appropriately in issuing the permits. He feels that (the Township Planner) should also issue permits to any other people who would like to live in the development.

Member Stagg asked if Mr. Lax feels (the Township Planner) should give the permits to everyone.

Mr. Lax stated (the Township Planner) should exercise his discretion appropriately. He said appropriate action would lead to permits being renewed and permits being issued.

Member Brostrom asked Mr. Lax if the WCRC has stated that any of the residents of the development no longer have legal access to public roads.

Mr. Lax stated the implication of the WCRC’s position is that the development does not have legal access to Platt Road.

Member Brostrom stated he understands that Mr. Lax would like the ZBA to overturn the Zoning Administrator’s decision, and allow permits to be issued. He said the WCRC would then decide how they would deal with the developer while the development continues, and the Township allows more people to move in. He said what Mr. Lax is asking the ZBA to do would create a number of serious issues that would affect people who would purchase property in this development, and people who already have property in the development.

Mr. Lax stated he is asking the ZBA to fulfill what the Township Board did in approving the site plan.

Member Stagg asked if the site plan was approved.

Zoning Administrator Spencer stated the Planning Commission approved the site plan, not the Township Board. He said after a road is constructed it is typically inspected.

Chairperson Naik mentioned he would like Mr. Lax to answer the issue of jurisdiction regarding the sixty (60) day time limit, and why there was a lawsuit filed instead of the applicant coming to the ZBA.

Mr. Lax stated in the second appeal filed items 11 through 24 related to denials of permits within sixty (60) days of the time the petition was filed. He said between the times of Zoning Administrator Spencer’s letter of April 8, 2004 and the June appeal, there have been approximately a dozen events of permit denial. He mentioned he did not file the lawsuit, although he believes it would have been appropriate for them (the applicant) to come to the ZBA (before a lawsuit). He said he does not think there are any legal principles stating that an appeal of an administrative remedy cannot be pursued while a lawsuit is in progress.

Member Stagg stated it is bad faith to go to court rather than going through established channels.

Mr. Lax stated he hopes that this Board would reach a conclusion, whether or not the applicant came before the Board first or went to court.

Member Brostrom asked Mr. Lax if he is saying that Mr. Spencer should have responded to every request for permits in recent months, even though on April 8 (2004) he sent a letter stating that no other permits would be issued.

Mr. Lax replied yes. He said when a person applies for a permit, he (Zoning Administrator Spencer) can say no. He said if a temporary permit expires and a person comes in to renew it, it should be approved.

Member Resha stated he does not believe that (Zoning Administrator Spencer) can do that legally within the Township Ordinances. He said if he (Zoning Administrator Spencer) issued this (a C of O) after the (April 8, 2004) letter was sent out, and after the WCRC permit was withdrawn, he would be in violation of the Ordinance and the Land Development Standards.

Mr. Lax stated it was not inappropriate for individuals to ask him (Zoning Administrator Spencer) for this.

Member Resha stated he agrees. He said he does not understand why Rock Construction did not respond to any of the current or prospective homeowners when they were notified of this. He said Rock Construction did not respond to the Township either, they went to court.

Mr. Lax stated he believes, although he is not positive, that Rock Construction did explain this to the homeowners.

Member Stagg asked Mr. Lax if the homeowners were notified that they would not have C of O’s after a certain date.

Mr. Lax replied yes.

Member Stagg asked Mr. Lax if any of the homeowners asked Rock (Construction) why this was happening. She asked what Rock’s response was to them (the homeowners).

Mr. Lax replied yes. He said Rock’s response was that they are having this controversy.

Zina Dennis, prospective homeowner of 3116 Primrose, stated she came in last week to talk with Mr. Spencer and Jim Walter (Township Supervisor). She said Mr. Spencer’s decision and the WCRC’s decision are not fair to her, her family, or to other homeowners. She mentioned that she moved to the area, into a condominium because she is a single mom and did not have much assistance with her previous home. She said she sold her previous home on June 17 (2004) and paid extra money to remain in the home. She said on June 25 (2004) she moved in with a friend, and her loan fell apart, which she believes had to do with the C of O not going through. She said in July (2004) she moved in with her mother, out of State, for a month. She said at that time her son did not see his father for a month, and he felt she was keeping him away from his father and his friends. She said at the end of July she moved back here and she was supposed to close in early August (on her unit). She added that did not happen because of the C of O. She said she did not do anything to deserve this. She said she cannot do her work because her computer and her possessions are in storage. She added that her storage rental expires soon. She said she considers herself and her son homeless.

Member Stagg stated the ZBA is not doing this to her.

Ms. Dennis stated she saved all her money to get into this unit. She said she signed an agreement in June 2003 to buy the unit.

Member Grosshans asked Ms. Dennis why she is not angry with Rock (Construction).

Ms. Dennis stated she does not know who is to blame. She said she and her son are in the middle of this.

Chairperson Naik told Ms. Dennis the ZBA has heard her story. He said this is the first time this issue has come before the Board.

Ms. Dennis stated she has saved her money, and she is a good citizen. She said she does not have access to her computer. She then stated she was leaving because she was very upset.

Chairperson Naik stated he would like to hear from the WCRC.

Allen Philbrick, attorney for the WCRC, stated this all started when Rock Construction came to the WCRC asking for approval of their plans. He added that the WCRC completed a traffic impact study, and found that if they built more than 90 units it would require a left turn lane. He said the left turn lane was made a requirement to get the permit. He said they (the applicant) submitted a set of plans that included a left turn lane. He said these plans were the plans that the WCRC approved in April 2002. He said for the past two (2) years they (the applicant) have made excuses as to why they should not do it, saying it is illegal for them to do it, and that the WCRC cannot make them do it. He said the developers want to build the road and have the WCRC pay for it. He said if this was not required (by the WCRC) it would set a precedent throughout the Township. He said Judge Connors would not grant their (Rock’s) injunction. He said this is not illegal. He said the statutes of the State of Michigan that say the WCRC can require, as a condition of obtaining a permit, that they (the developer) first agree to build the left turn lane.

Member Resha asked Mr. Philbrick how many letters the WCRC has received from Rock Construction denying the legality of the turn lane.

Mr. Philbrick stated they have received approximately five (5) letters. He read one letter from Rock Construction, by Greg Elliot, on June 26, 2003 stating, “You may accept this memo as our commitment to do the following: complete revisions to the plans from the Platt Road right-of-way improvements consistent with your most recent review, install those improvements, obtain a declaratory judgment regarding the appropriateness of the work we propose to do in the Platt Road right-of-way, if your counsel feels that is necessary.” He also read, “….We would greatly appreciate it if you would reassure the Township that our current “driveway” permit will be extended…” He said it makes it sadder to deal with them when they keep moving people in illegally.

Member Resha requested a copy of the letter that Mr. Philbrick was referring to, so it can become part of the public record.

Mr. Philbrick agreed.

Member Brostrom asked Mr. Philbrick if the left turn lane they are attempting to require is an issue of public safety according to WCRC standards.

Mr. Allen stated it is a written standard.

Member Grosshans asked if this turn lane (requirement) if different than any other in the Township.

Mr. Philbrick replied no. He said there are at least three (3) projects within a half mile with turn lanes like this. He said the WCRC requires written agreements from developers that say they will do this. He said the WCRC has had developers say they will do something, the developers receive the permits, and then they say they will not do it. He said after this happened the WCRC adopted this procedure so that if a developer agrees to complete something they cannot weasel out of it.

Member Resha asked Mr. Philbrick, when the developer requested a letter from the WCRC to present to the Planning Commission, was the turn lane requested by the WCRC.

Mr. Philbrick replied yes. He said the plans submitted to the WCRC show the turn lane.

Chairperson Naik asked Mr. Philbrick to address Mr. Lax’s statement regarding the applicant’s objection to the language in the agreement about the costs.

Mr. Philbrick stated there are four or five (5) issues that they (Rock Construction) have with the WCRC. He said they do not want to pay for the turn lane. He said they (Rock Construction) once stated that the WCRC should pay for half of the project. He said they also feel the thickness and length of the pavement is inappropriate. He said Blue Heron Pointe is being built to the north, and they have agreed to build their turn lane. He said Rock Construction believes that the WCRC is imposing additional costs on them.

Member Brostrom asked if this is the first project Rock Construction has done in Washtenaw County. He said he would like to know if this is a new behavior for the company (Rock Construction).

Jim Harmon, Assistant Director of Engineering for the WCRC, stated Rock Construction has built in Washtenaw County before. He said the development was called Hickory Pointe, in Pittsfield Township, on Munger Road. He said Rock had to improve Munger Road, and those improvements were completed.

Member Grosshans asked if the road improvements for a project are the burden of the developer.

Mr. Philbrick replied yes. He said the WCRC has no funds. He said the WCRC is required to maintain the roads in the County. He said the only money the WCRC has is from weight and gas tax money issued by the Michigan Department of Transportation (MDOT). He said they do not have money to build turn lanes for developers. He said the WCRC does have the right to withhold access permits based on the traffic volumes, the adjacent use of the property, what will be on the property, and the public interest.

Member Brostrom stated Platt Road is currently a two-lane road, and this development would require people traveling southbound to stop traffic to turn left, and this is a dangerous situation.

Mr. Philbrick stated with the volumes of traffic this road reaches, a two lane road would be dangerous.

Member Stagg asked Mr. Philbrick if the WCRC is just asking for a left turn land and not a light.

Mr. Philbrick replied yes. He mentioned the impact study stated the development would affect Michigan Avenue. He said the developer is not being asked to address every impact issue they are going to make.

Terry Neumann, homeowner at Rosewood, stated under no circumstances was she notified by mail, or by leaving her number with the Building Department, that the temporary C of O was extended. She said the left hand turn lane for Bridgefield Estates was installed recently, and that development is sold out. She said the multi-cultural center is moving trailers onto their site, and there is no left turn lane for that development. She said she believes exceptions are made with the WCRC. She said Bridgefield Estates has been there for five (5) years and their turn lane was just recently added. She asked that the ZBA consider the people who would like to move into their homes.

Member Grosshans asked Ms. Neumann when she moved into her home.

Ms. Neumann stated she closed on July 2003. She said this is an investment property for her. She said the individual that rents from her moved in, in June 2004.

Chairperson Naik asked Ms. Neumann if, when she bought the home, Rock (Construction) notified her that there was no C of O.

Ms. Neumann replied no. She said she found this out when she came to the Township (offices).

Member Stagg told Ms. Neumann that Rock (Construction) said they notified all residents that no C of Os would be allowed. She asked Ms. Neumann if she received anything from Rock.

Ms. Neumann stated she had a temporary C of O that later expired.

Janet Dillingham, homeowner in Rosewood, stated she did not know that the C of O was extended until this evening.

Member Grosshans asked Ms. Dillingham when she closed on her home.

Ms. Dillingham stated December of 2003. She said she was issued a temporary C of O, only “temporary” because it did (the home) not have the lawn or the sprinklers in. She said these things were not done because it was December. She then showed a copy of the C of O to Member Grosshans. She said they were never told about this (the C of O expiring), and she found out because she was planning to refinance. She said she was never notified. She said her home is also an investment property, and the people who live in the home have been there since February 2004. She said the people may have to move out because of legal wrangling between Rock Construction, the WCRC, and the Township.

Member Grosshans stated the Township did not volunteer to intercede in this matter. He said the Township was brought into this matter. He stated a C of O would have been issued when the sprinkler was put in, although this matter came to the Township in April (2004).

Zoning Administrator Spencer stated site issues are more extensive than just sprinklers. He said there could have been numerous site issues. He said there are no permanent C of O’s issued in Rosewood at this time.

Ms. Dillingham stated they have their sprinklers and the lines on the parking lot. She asked why the Township doesn’t wait until the lawsuit is settled, and the decision is made, and then decide if the C of Os should be issued.

Zoning Administrator Spencer stated everything is on hold until the lawsuit is settled.

Ms. Dillingham stated some of the homeowners bought their properties before these issues came up.

Member Resha stated Rock Construction is the one that is not meeting the Ordinances.

Ms. Dillingham stated she does not see it this way. She said her place has passed all the inspections, and they have pulled all permits, they are now just waiting on the WCRC.

Chairperson Naik stated the Township is in the middle of the lawsuit, but the applicant asked for this hearing. He said the applicant filed an application for this hearing, and they have to hold it.

Member Brostrom asked Ms. Dillingham if she heard anything from Rock Construction when her C of O expired.

Ms. Dillingham stated (Rock Construction) does not issue the C of O.

Member Brostrom asked Ms. Dillingham if she has professional connections with Rock Construction.

Ms. Dillingham replied yes, she works for them, for another week.

Ms. Neumann stated she does not see what this has to do with anything.

Chairperson Naik asked Ms. Neumann if she works for Rock Construction.

Ms. Neumann replied yes, although she does not see what that has to do with tonight. She asked if this would change the ZBA’s mind.

Member Stagg stated the ZBA asked if Rock had informed you that there are problems with the C of O. She said Rock’s attorney stated that they did inform the residents.

Ms. Neumann stated they do not deal with Rock Construction anymore because they closed on their homes.

Kelly Eicher stated he has only heard from what was presented tonight that Rock Construction is willing to build the road.

Zoning Administrator Spencer asked if a road or maintenance agreement was signed.

Mr. Eicher stated he did not know. He said the original C of Os were temporary because of landscape issues only. He said Rolling Meadows has a left turn lane, and why can’t there be temporary access through there until Primrose Lane is 100%. He said there are acceleration and deceleration lanes, and this is a mistake.

Mei-Fu Sheng stated she signed a purchase agreement in March 2004. She said she heard about the situation two weeks ago. She was supposed to close on her unit by September 7, 2004. She said she is concerned about no temporary C of Os being issued. She asked how Rock Construction could still ask her to close on her unit (if a C of O would not be issued).

Chairperson Naik asked Ms. Sheng if she signed the purchase agreement, but has not closed on the unit. He asked if Rock Construction mentioned anything to her.

Ms. Sheng stated she just signed the agreement. She said Rock Construction has not mentioned anything to her. She said she found this information out from her realtor.

Member Grosshans asked when the purchase agreement was completed.

Ms. Sheng stated it was around March 13, 2004.

Member Grosshans stated Zoning Administrator Spencer issued his statement in April (2004).

Member Brostrom asked Ms. Sheng if she is expecting to close in September.

Ms. Sheng replied yes.

Mr. Lax stated he stands by the fact that Rock is willing to build the road. He said Mr. Philbrick acknowledged that in certain cases property owners do have the right to question the reasonableness of the WCRC. He said Mr. Philbrick wants the WCRC to reserve the right to limit which cases have the right to question this reasonableness. He said they will build the road the WCRC wants to build. He said Rock Construction only wants to reserve the right to question some of the costs. He said there is no reason for Zoning Administrator Spencer to exercise his discretion as an enforcement device to allow the WCRC to pursue the position that the property owners cannot question the reasonableness of the decision.

Member Resha stated he does not believe that this is a correct understanding of the situation.

Member Grosshans asked if Rock Construction knows that the people who are closing on their units will not receive a C of O.

Mr. Lax stated this is true.

Member Grosshans asked why Rock Construction would close with the people if they know the people are buying something they cannot live in.

Mr. Lax stated Rock Construction is willing to close with people who know the facts. He said Rock Construction has been dealing with realtors.

Member Stagg stated that Mr. Lax said that Rock Construction had informed people of this.

Mr. Lax stated he did not say this. He said it was his understanding that Rock had informed the people.

Tom Meagher, township attorney, asked Mr. Lax what he can do with his clients to make sure that people who have not yet closed on their units are informed.

Mr. Lax stated he will inform them and ask his client what they can do. He said he will provide information on this, when he has asked his client.

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

MOTION CARRIED

Chairperson Naik stated the ZBA needs to discuss the jurisdiction issue, the Zoning Administrator’s decision, and any other matters.

Member Brostrom stated there are people who are suffering hardships in this situation. He said when the ZBA last met on this issue they decided that the Ordinance was clear, and that the appeal had not been lodged in a timely matter. He said the conclusion was that they did not have jurisdiction. He said he has not heard anything tonight to convince him that they were wrong.

Motion by Member Brostrom, supported by Member Stagg, to declare that the ZBA does not have jurisdiction in this matter, because of the time issue.

Discussion:

Member Stagg stated she thought the proposal was that they did not have jurisdiction because of the WCRC.

Member Brostrom replied no. He said jurisdiction concerns the timeliness of the appeal. He said the Ordinance states sixty (60) days and this (the appeal) was filed in 102 days.

Member Stagg asked if the Board can make amendments and say they think it is the WCRC’s responsibility.

Member Brostrom stated that is a different issue.

Zoning Administrator Spencer stated that it is his opinion that he only had to make this decision once, that it does not have to happen with each event. He said they can make repeated requests every day. He said he made that decision on April 8, 2004 and he asks the ZBA to support that.

ROLL CALL VOTE:

YES: RESHA, GROSSHANS, STAGG, BROSTROM, NAIK.

NO: NONE.

ABSENT: NONE.

ABSTAIN: NONE.

MOTION CARRIED

Chairperson Naik stated the second discussion is on Zoning Administrator Spencer’s decision, and whether the ZBA agrees with him to withdraw the C of Os.

Motion by Member Brostrom, to support Zoning Administrator Spencer’s decision of April 8, 2004.

Mr. Meagher stated that the ZBA had already voted that it is without jurisdiction to address this appeal. He said the ZBA might want to give some direction about what they would do if they did address the appeal.

Member Brostrom withdrew his motion.

Member Brostrom stated this matter is being litigated and the ZBA had reached the same decision, that it does not have jurisdiction. He said it would still be wise for the ZBA to indicate, in an advisory way, how the ZBA would rule hypothetically on Zoning Administrator Spencer’s decision.

Chairperson Naik stated that no motion was necessary, but the ZBA can have this discussion. He asked Mr. Lax how many people have moved into the units.

Mr. Lax stated a number of people moved in with C of Os.

Zoning Administrator Spencer stated his list does not include all of the people with temporary C of Os. He said the people who were there legally at one time are basically grandfathered in.

Mr. Lax stated he does not have information regarding how many people are there and when they moved in.

Zoning Administrator Spencer asked if there are more people in this situation who were not listed in the application.

Mr. Lax stated he is not sure.

Mr. Meagher stated that they are trying to find a way not to affect the people who are already living in their homes, if this can be done and still remain consistent with the decisions made.

Mr. Lax stated he can take the ZBA’s questions and get the answers.

Member Stagg asked Mr. Lax if he wants the Township to give him the information on which people have C of Os and who is close to having C of Os.

Mr. Lax stated he needs this information to be able to answer the questions. He said he does not know when the people moved in or who they are.

Member Brostrom asked how it is possible for people to close on a house without a temporary C of O.

Zoning Administrator Spencer stated the Township included the petitioners, and other people on a list. He said there could be 40 to 50 people. He mentioned staff could provide a list of who has temporary C of Os that have expired. He said Mr. Lax could provide a list of people since July 21, 2004 who are trying to move into their homes.

Member Stagg and Member Brostrom stated they would like both of those lists.

Member Brostrom stated that these people are being victimized by Rock, and the ZBA does need a list of who is presently living there.

Mr. Lax stated if a Township official lets him know what they want, he will provide it.

Zoning Administrator Spencer suggested the ZBA postpone or table this meeting and discuss this issue further at another meeting. He said the Township attorney can consult with Mr. Lax about the information needed for the next meeting.

Motion by Member Resha, supported by Member Grosshans, to postpone the meeting.

Discussion:

Mr. Lax suggested that the ZBA discuss whether it is in the jurisdiction of the ZBA to conduct a further investigation of this. He asked whether the ZBA is the right forum for this, and whether they would like to take this on as their jurisdiction. He said Mr. Meagher, Mr. Lillich, and Zoning Administrator Spencer are already conducting a further investigation of the jurisdiction.

Member Grosshans asked what will be done with Ms. Dennis.

Mr. Lax stated he would take the information to his client regarding the concerns of Ms. Dennis, the Township, and other individuals.

Chairperson Naik asked Zoning Administrator Spencer and the Township attorneys to work with Mr. Lax and come up with an agreement.

Mr. Meagher stated they have been working together and will continue to work together.

Mr. Lillich stated that if this is something the ZBA will consider at a later date, an adjourn date should be set at which time the information will be given.

Mr. Lax stated the ZBA may want to consider if it should get into the discussions of the lawyers. He said it does not make sense to have an adjourn meeting to hear the relief the ZBA may want to fashion.

Mr. Lillich stated he thinks the ZBA does have the statutory authority to make variations in the Ordinance. He said the issuing of C of Os deals with this. He said in the Zoning Ordinance they cannot issue C of Os or zoning compliance certificates because there is no legal access, because the WCRC revoked their permit.

Mr. Lax stated he would do what the ZBA would like him to do, and he will answer questions to the best of his ability.

MOTION CARRIED

Member Brostrom stated he believes that the ZBA, if they had jurisdiction in this case, would have agreed with Zoning Administrator Spencer’s decision.

Member Resha agreed. He said Zoning Administrator Spencer followed the Ordinances.

Item 6.1 Amend Minutes of May 10, 2004, was moved to follow.

Zoning Administrator Spencer stated the minutes of May 10, 2004 were approved without the document being attached to the minutes. He suggested that any resolution approved become part of the minutes.

Member Grosshans stated he had a question about the vote record on the bottom of page 5.

Members briefly discussed and determined the record was correct.

Motion by Member Resha, supported by Member Grosshans, to amend the minutes of May 10, 2004 to attach and incorporate into the minutes the exact Document discussed in detail at that meeting being titled "In the Matter of Arbor Oaks, LLC (ZBA 02-07) Discussion of the Zoning Board of Appeals On Use Variance Application." The original of the Document will be attached to the May 10, 2004 minutes and an exact copy of the Document is attached to this motion, as corrected. (Attachment #2)

Zoning Administrator Spencer noted the word "Discussion" should be "Decision.”

Member Grosshans supported the above motion, as corrected with the word "Discussion" to "Decision.”

MOTION CARRIED

8.0 Zoning Administrator’s Report

Zoning Administrator Spencer noted Fairwood Green [ZBA 04-03] is scheduled for September 13^th [2004] and there is one request pending which is firmly for September 13^th also. He noted this has not been published at this date.

Chairperson Naik stated Fairwood Green should be the only item for the 13^th and the pending item on the September 27^th [2004] meeting.

9.0 Member's Report

None.

10.0 Secretary’s Report

None.

11.0 Chairperson’s Report

None.

12.0 Approval of Prior Minutes

12.1 Minutes of July 7, 2004

12.2 Minutes of July 19, 2004

Member Brostrom stated he would like to postpone the minutes because he has not had time to review them.

The Member’s agreed.

Motion by Member Brostrom, supported by Member Stagg, to postpone approval of the minutes.

MOTION CARRIED

13.0 Adjournment

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

MOTION CARRIED

Chairperson Naik adjourned the meeting at 10:10 p.m.

________________________________________________________________________s/Alayna Stagg, Secretary October 11, 2004

(Attachment #1)

zoning APPEAL review

TO:                ZONING BOARD OF APPEALS

FROM: MARK SPENCER, zoning administrator

                  SUBJECT:    ZBA 04-06 Rosewood

DATE: 8/19/2004

cc:                 TWP. ADMINISTRATORS, ENGINEERING &                   PLANNING

A Zoning Ordinance violation notice was sent to Mr. Steve Rosenthal of Rock Homes Construction dated April 8, 2004 stating that that the Zoning Administrator would not issue any “…Zoning Clearances for Building Permits or Certificates of Occupancy on this site until your firm can provide evidence of legal access to the site (Section 58.03 and 58.06B).” See attached. This decision was first appealed by petition dated 7-12-04. At the ZBA hearing dated July 19, 2004, the ZBA determined under Section 60.01(C) of the Zoning Ordinance that the appeal was untimely because it was filed more than 60 days after the April 3, 2004 decision. The current petition before the ZBA is essentially a repeat of the first appeal. However, in the current appeal the petitioners are suggesting that after my April 8, 2004 Notice of Violation it was my further responsibility to deny each and every request for occupancy certificates and/or Building Permits. I believe this may be an attempt to avoid the consequence of the 60 day limit for appeals. I do not believe that an individual response is required for each request for a certificate of occupancy and/or building permit when my blanket determination that there are zoning violations and no further permits will be issued until the zoning violations are cured, constituted my final decision regarding such permits.

However, on July 21, 2004, the Township received the current petition from Rosewood Village, LLC, Terry Neumann, and Janet Dillingham, whose addresses are listed on the petition as 20555 Victor Parkway, Ste. 250, Livonia, Michigan, to again appeal my administrative decision(s) regarding the withholding of Zoning Clearances for the Rosewood Village Condominium project (Project) until approval for access is received from the Washtenaw County Road Commission (WCRC). A reversal of my decision would mean that there are no zoning violations under the terms of the ordinance and Building Permits and Certificates of Occupancy would have to be issued and the development continued in spite of the fact that the WCRC has stated that the project no longer has legal access to public roads. It should be noted that items number 13 and 24 in the application are not administrative decisions and need not be considered in this appeal. Paragraph 13 references a correspondence sent to the Township Supervisor and no zoning decision was made or required by the Supervisor. Nor is the Supervisor responsible for making interpretive decisions of the Zoning Ordinance that would be subject to ZBA review. Item 24 is a request for the ZBA to review my opinion that the first appeal was untimely when the ZBA has already made its own determination regarding that issue.

Even if you looked at items one to 10 independently, no timely appeal was filed. In every case the last day for appeal was May 22, 2004 at the latest.

It should be noted that the matter that is before the ZBA on appeal is also the subject of a pending lawsuit against the Township. Instead of appealing my decision to the ZBA in a timely manner, Rosewood Village, LLC filed a lawsuit against the Township and myself to reverse my administrative decision of April 8, 2004. In a preliminary injunction hearing, they asked the court to order the Township to issue Zoning Clearances, Building Permits and Certificates of Occupancy. The court denied that request.

I present the following information regarding this petition:

Rock applied for Township approval to develop a condominium project within an approved PUD Zoning District in Pittsfield Township. Under Section 55.02(J) of the Zoning Ordinance, a condominium development requires site plan review and approval. Under Section 55.08 of the Zoning Ordinance, application for site plan approval requires the developer to provide the information required for a final site plan as stated in the Township’s Land Development Standards. Section 2.03(dd) of the Township’s published Land Development Standards specifically requires the developer to provide evidence of WCRC approval. Based on the information provided, including WCRC approval of the plans, Rock received site plan approval from the Township Planning Commission to build the Project. In addition to these requirements, and prior to any site construction, Rock was required under Section 55.09B to obtain any and all required permits from the County, including a public road access permit. The WCRC issued a temporary access permit to use Platt Road in accordance with its practices and procedures.

Rock entered into a development agreement with the Township Board of Trustees on August 23, 2002 to build Phase 1 of the Project and construction began shortly after the parties signed the agreement. Through March 2004, the Township issued several Building Permits and Certificates of Occupancy for buildings and units in the Project. The development at that time was moving forward in accordance with the Township’s Zoning and other regulatory requirements.

Then, on March 24, 2004, I received a letter from James Harmon, Assistant Director of Engineering WCRC, stating Rock’s temporary access permit #2002-543 expired and that they no longer had lawful access to the Project (attachment A). I have not included any discussion of the reasons for the lack of approval from the WCRC. I believe this is a matter that must be resolved between Rock and WCRC.

Under Section 58.03 of the Zoning Ordinance, the Zoning Administrator cannot issue any permits or Certificates of Occupancy for any construction that does not conform with requirements of the Ordinance. Section 52.01 states in part that all “…information regarding uses of properties as shown or as part of an approved area plan, and on site plans … approved subsequently thereto, and all conditions of approval, shall have the full force and permanence of the Zoning Ordinance as though such regulations were specifically set forth in the Zoning Ordinance. Such regulations shall be the continuing obligation of any subsequent interests in the land in a PUD or parts thereof and shall not be changed except as approved through amendment or revision procedures as set forth in Section 52.12, herein.” It was my determination that not having valid/legal road access and/or a required road access permit from the WCRC was a violation of zoning requirements that such legal access to public roads be maintained. In accordance with Section 55.09B, they would not have been able to commence any site work without the required permits from the WCRC.

On March 26, 2004, I notified Steve Rosenthal of Rock, by copy of a memorandum from myself to the Township Building Department (attachment B), that the Township Planning Department would not approve any additional Building Permits for the Project until legal access was obtained from WCRC. On April 8, 2004, I notified Mr. Rosenthal that Rock was violating Sections 52.02 A. and 52.18 B. of the Zoning Ordinance (attachment C).

On about April 12, 2004, Rock stated they had legal access to the Project via the roads in the neighboring subdivision of Rolling Meadows. I questioned Mr. Harmon on this matter and he responded that Rosewood had no legal access to public roads (attachment D). In discussions with Mr. Harmon, he stated that the WCRC could physically close all access points to Rosewood, but this would be a last resort if an agreement could not be reached with Rock.

Section 52.02 A of the Ordinance states: “Each building must have access from a public street or a private street approved by the Township Board.” WCRC approval was required for site plan approval and the access and construction plans approved by WCRC are a part of the approved site plan. WCRC approval is required for the Project to have legal access. Site construction of the project could not have commenced without the required permits from the WCRC. Therefore, the withdrawal of approval from WCRC is a failure to comply with the approved plan and other zoning requirements and a violation of the Ordinance. Section 52.18 of the Ordinance states that “Violations of any plan approved under this article, or failure to comply with any requirement of this article, including conditions attached to an approved plan, shall be considered a violation of this ordinance, as provided in Article 58.0, herein.” Section 58.03 of the Ordinance states “It shall be unlawful for the Zoning Administrator to approve plans or issue any permits or Certificates of Occupancy for any excavation or construction until he has inspected such plans in detail and found them to conform with this Ordinance…”

Since approval from WCRC is a condition attached to the approval of the Project, and without that approval the Project is in violation of the Ordinance, the Zoning Administrator cannot issue Building Permits or Certificates of Occupancy for buildings within the Project. I reached the above conclusion after reviewing relevant Zoning Ordinance provisions in consultation with Victor Lillich, Township Attorney. Without WCRC permitted access, residents in the Project could be forced to walk into their homes if the WCRC elects to physically close the access points. Limiting this problem to the exiting residents reduces health and safety issues that could be compounded by allowing additional people to occupy homes in the Project until this issue is resolved.

On April 15, 2004, WCRC issued an additional temporary permit for access to the Project that expired on April 23, 2004 (attachment E). Based on the fact that Rock now had legal access to the Project, although it was only temporary, I approved the Zoning Clearances for six Building Permits and three Temporary Certificates of Occupancy during this period.

On April 21, 2004, the WCRC temporarily extended their previously expired permit to April 29, 2004, to allow Rock to obtain a Certificate of Occupancy for one unit in the Project (attachment F). Based on the fact that Rock now had legal access to the Project, although again it was only temporary, I issued a Zoning Clearance to issue a Temporary Certificate of Occupancy for the requested unit (attachment G). However, since April 29, 2004, I have withheld Zoning Clearances no additional Building Permits or Certificates of Occupancy have been issued for the project. I have approved the reissuing of temporary Certificates of Occupancy for those units that were issued a Temporary Certificate of Occupancy before April 29, 2004.

On June 3, 2004, Rock filed a lawsuit to reverse my administrative decision (attachment H). At that same time they also filed a suit against the WCRC.