Pittsfield Charter Twp, Michigan

REGULAR MEETING February 25, 2004 6:30 P.M. PITTSFIELD TOWNSHIP ZONING BOARD OF APPEALS MINTUES

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

Members Absent: None.

Others Present: Robert Jacobs, Heidi Hanson, Jon Caterino, Alan Jacobson, James Blackburn, Mark Pascoe, Chris Bell, Kathy Bell, William Anderson, Assistant Planner Jennifer Black, Assistant Planner Paul Montagno, Zoning Administrator Mark Spencer, Recording Secretary Marge Burkheiser, and others who did not sign in.

1.0 Call Meeting to Order/Determination of a Quorum

Chairperson Naik called the meeting order at 6:35 p.m. A quorum was present.

2.0 Approval of Agenda

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

MOTION CARRIED

3.0 Communications and Announcements

None.

4.0 Items from the Floor

Chairperson Naik requested anyone with comments pertaining to Arbor Oaks to withhold their comments until the item was presented. Other comments were welcomed at this time.

Chairperson Naik noted there were no additional public comments.

5.0 Election of Chairperson, Vice Chairperson and Secretary

Motion by Member Grosshans, supported by Member Brostrom, to reappoint Member Naik as Chairperson and Member Stagg as Secretary.

Motion by Member Brostrom, supported by Member Resha, to reappoint Member Grosshans, as Vice-Chairperson.

Motion by Member Resha, supported by Member Brostrom, to re-elect the above officers, by acclamation.

MOTION CARRIED

6.0 Old Business

6.1 ZBA 02-07 Arbor Oaks [submitted for court ordered rehearing for a use variance R-1A to R-1B]

Chairperson Naik introduced the item and stated he worked for Ayres, Lewis, Norris & May, Inc., the Township engineer, but he did not work on this project. He requested that if the applicant had any objections to please say so.

Robert Jacobs, attorney for the applicant, stated he did not feel this would prohibit Mr. Naik from being impartial, unless he felt so himself. He also said he would accept Mr. Naik’s decision.

1. Naik asked Bruce Laidlaw for advice.

2. Laidlaw, Township attorney, stated he did not believe a recusal was required or there was any direct financial interest in the project. Mr. Laidlaw stated the petitioner was not objecting and since Mr. Naik had indicated he was not involved in this project, he did not feel it was required that he disqualify himself.

3. Naik assured Mr. Jacobs that his decision would be based on the facts and not preconceived ideas.

4. Jacob accepted Mr. Naik’s decision to participate in the hearing of this appeal.

Chairperson Naik briefly gave instructions for the order of presentations and requested all parties to keep their comments brief.

1. Jacobs stated he was present along with Scott Jacobson of Arbor Oaks, Bill Anderson of Atwell-Hicks, Jon Caterino of Boss Engineering and formerly with MDEQ, and Heidi Hanson of Birchler Arroya Associates. He said they had received the report of Zoning Administrator Spencer, but have not had time to respond to all the comments. He noted there were additional handouts for the ZBA Board Members.

2. Bill Anderson, of Atwell-Hicks, reviewed his report of February 16, 2004, and stated utility systems are available on Platt Road in anticipation of service for the area.

3. Anderson said the Township utilities were designed and constructed in anticipation of providing service for this property. He continued and stated the methodology used by the Township for Flow Reduction is inappropriate to the property in question. He said a Township memo dated July 1, 1998 contained five (5) criteria for property being removed from the service area. He said the first criterion was that the areas are currently undeveloped without immediate availability of water and sewer. Mr. Anderson said this is not true, there is public sanitary sewer and water and they do exist along the property within the right-of-way of Platt Road.

He said the second criterion was that the areas are served by poorly maintained gravel roads. Mr. Anderson said this is not true. Platt Road was and is a paved County collector road that provides adequate service for the residential development existing and proposed along the roadway.

The next criterion was that the area is among the most environmentally sensitive and aesthetically beautiful areas of Pittsfield Township. Mr. Anderson stated this is not true for this parcel. He said this property has very few trees or topographic relief. The site is relatively flat and open with no sensitive woodlands or wetlands with no natural beauty to preserve.

He stated the next criterion is that the area provides a logical separation between the east and west utility areas of the Township. Mr. Anderson stated this is not true and that this property is near the middle of the service area. The east/west utility split is about two (2) miles further west along Michigan Avenue.

He read the final criterion, that providing service in this area would involve literally thousands of feet of infrastructure that would have to be maintained and operated by an already understaffed department. Mr. Anderson said this is not true. He said public sanitary sewer and water are along the frontage of the property and available for connection. He also said this criterion was not appropriate for determining operation and maintenance cost and that as the system grows, so would the customer base and usage fees.

1. Anderson concluded by stating that none of these criteria applied to the Arbor Oaks property. He said when they submitted the rezoning application it had, and still has, available public and sanitary sewer and public water main as defined by state, county, and Township codes.

2. Anderson said that when the rezoning application for the subject property was initially discussed at the Planning Commission in August 2002, it had, and still does have available public sanitary sewer and public water services, as defined by State, County and Township statutes. He reviewed part of the State law concerning sanitary sewer systems and septic tank disposal systems which states in part: sewer systems are essential to the health, safety, and welfare of the people of the State, that septic tank disposal systems are subject to failure due to soil conditions or other reasons, that failure or potential failure poses a threat to the public health, safety and welfare, presents a potential for ill health, transmission of disease, mortality and economic blight; and constitutes a threat to the quality of surface and subsurface waters of this state. He said the connection to available public sanitary sewer systems at the earliest, reasonable date is a matter for the protection of the public health, safety, and welfare.

3. Anderson related part of the Washtenaw County Environmental Health code for available public sanitary sewer systems, stating in part: this is a public sanitary sewer system located in the right of way, easement, highway, street, or public way which crosses, adjoins, or abuts upon a property and passing not more than 200 feet at the nearest point from a structure in which sanitary sewage originates. He also said the sanitary sewer located along Platt Road is definitely within 200 feet of any proposed project. He also referenced a letter from Richard Fleece of the County Health Department, dated February 10, 2004, that said connection would be required if a sewer was available.

Member Grosshans asked if the sanitary sewer is on the front of the property along Platt Road.

1. Anderson said the sewer is on Platt Road on the front of the property.

2. Anderson said Article VI of the Pittsfield Charter Township Code (Sewer use) is consistent with State and County policy, and defines public sewer as follows.

Chairperson Naik interrupted Mr. Anderson saying he did not think he needed to read this. The Members understood this [Township Code (Sewer use)].

1. Anderson responded that he disagreed and felt this was a key point. He asked to be allowed to read the section. He read:

“Public sewer means a sanitary sewer owned and controlled by the township serving or designed to serve two or more separate buildings. All owners of abutting properties shall have equal rights of access to such a sewer.” He also read the Township Code, Section 36-192 regarding connection to public sewer which in part states "The owner of all houses, buildings or properties used for human occupancy, employment, recreation or other purposes within the Township and abutting a street, alley, right-of-way or any easement in which there is public sanitary sewer of the Township, is required at his expense to install suitable sewerage facilities and connect such facilities directly to the proper public sewer.”

1. Anderson then said this Code specifies that the sewer in front of our property, in Platt Road, is a public sewer, giving this property the right to that public sewer. It further states the Township is legislatively required, if the applicant builds a home on this property, to connect to it, by the Township Code, by the County, backed by the State Code. He stated he felt this was critical.

Member Grosshans asked if the developer pays for all the hook up fees; who will pay for the overage gallons to YCUA.

1. Anderson stated he did not think there will be an overage. He said the State will look at the application and if the State felt the project, in their opinion, would push the Township over their capacity limit within the treating body, YCUA, they would not allow it and the project could not be built even if the Township wanted it.

Member Brostrom stated this sounded as if the Township really does not control the sewers, that once sewers are installed everyone that has possible access to sewer and water has a right to it and it must be granted by the Township.

1. Anderson replied that this is what your Code says. That is what County and State public policy says is appropriate.

Member Brostrom stated he understood that if sewer and water were given to one individual or property, then certainly everyone else along those lines would have equal right. He said that Mr. Anderson's reading suggested the Township really does not control these decisions, that once sewer and water is available anyone that has property along those utilities can hook up, if they pay for it.

1. Anderson stated that was correct if they paid for it.

2. Anderson continued, stating wastewater treatment and pipe transportation capacity for the subject site were and still are available for the subject property. He said the system has capacity. He stated the system was designed for and has adequate capacity to service the site with a density of 2.5 dwelling units/acre in a R-1B zoning. He said the Township’s contracted capacity is for 4.5 MGD (million gallons/day) and usage is about 2 MGD. He said if you looked at everything on the books, the projected increase is .81 MGD bringing the Township usage to 62% capacity. He said the Township could have purchased additional MGD and in five years do another expansion. He said the Township did not need to reduce the need [utility district] and there is capacity. He said he had discussed future expansion with Mr. Thomas of YCUA who stated the Township has undefined capacity.

Chairperson Naik asked how the proposed project's needs were determined.

1. Anderson stated they came into the Township offices and talked to staff and looked at plans for every project the Township had. He said they looked at concept plans, site plans, and engineering drawings. He said they also talked with Stan Ewell at YCUA about the plans the Township has approved dealing with sanitary sewer and water. He said they tied a flow to that and added everything in the plans up. He said they assumed in their calculations that all these projects were going to be built, although he knows projects come and go. He said if these projects were all built, the additional flow would be .8 MGD. He said the Township would be at a 60% capacity. He said there is capacity for everything, and this project would not come close to putting the Township over its limits.

Chairperson Naik asked if they used a 100% build out of the Township or just the projects on the books.

1. Anderson replied that this was for 100% of everything that is on the books.

Chairperson Naik asked about projects that are not even in the conceptual stage.

1. Anderson stated there is much land and if you let 100 units in the sewer district now, in 20 years there could be 100 units that do not get in. He said it is first come first served in making connections to a public utility. He said we can all guess how many people per home there are and how much sewage will flow from every acre of land. He added that all these projections were done at 2.5 units an acre, and some of these [properties] were going to have parks, wetlands etc. and they will develop at a lesser density. He said the 2000 waste water projection was 5 MGD and the Township purchased 4.5 MGD. In another ten (10) years, the Township does not know where it will be on capacity, but YCUA may have another expansion. He said the Township cannot deny appropriate present-day connections for some future connections that might occur.

Member Resha interrupted Mr. Anderson stating he wanted to make a correction. He said we are talking about water and sewer. The ZBA has no authority to let anyone hook up to water and sewer. That has nothing to do with the ZBA.

1. Anderson replied the reason it is so critical is that they have requested R-1B zoning, which is public water and sewer, 10,000 square foot lots and 2.5 units per acre. He said he felt that is an appropriate zoning. The new Comprehensive Plan shrank the utility district and took the property out, and now the property is R-1A. He said the Plan disregarded their request to zone it R-1B and made it R-1A on the premise that water and sewer will not be available to this property. He said that premise is inappropriate, because there is public water and sanitary sewer in front of the property; it is appropriate to allow the connection; hence, it is appropriate to be in R-1B zoning.

Member Grosshans stated that one issue from the last hearing was the statement that the land would not perk.

1. Anderson stated this was correct and that no reasonable residential development could be constructed there without water and sewer and the appropriate lot sizes. He stated the soil is a big issue in developing one-acre lots and that percolation tests are no longer done by the [County] Environmental Health Department. He added the Department wants to see and feel the soils and they require on-site soil evaluations for every project. He said generally a developer hires a consultant, who performs a preliminary soil investigation for the suitability of the soils for a septic field and bearing capacity, etc. and those tests have been done. He stated that after the preliminary soil investigation, a preliminary site plan is generally put together and brought to the municipality for approval. He said after a preliminary layout is approved, you know where your septic systems need to go and then you involve the Washtenaw County Health Department to do soil investigations and investigate each site.

2. Anderson said you modify the layout if needed and go forward with your final site plan. He said they hadn’t gotten past the point of soil evaluations to determine the soil suitability of the project. He said the soil consultant’s evaluation was done twice, (August and November 2002). He said to summarize, the soils are predominately clay material and clay material is not considered permeable and suitable for wastewater discharge. He said some of the borings encountered very moist compact sands at depths greater than ten feet, and the County Health Department and the State of Michigan do not accept saturated formations, including sands, deeper then six (6) feet as an acceptable soil formation for subdivision septic fields. He added that the conclusion of the McDowell report was that the site is not acceptable for subdivision septic fields. He said he also said previously that engineered fields, of which there are two types, are not appropriate for this site, since it lacks topographical relief.

Member Grosshans asked if this was done after the [ZBA's] last meeting.

Member Resha noted the test was done November 18, 2002.

Member Grosshans asked if at the time of the last meeting the deepest the applicant had gone was six (6) feet.

1. Anderson replied no, we indicated 15 feet.

Member Resha interrupted and stated they previously indicated borings of 5 to 7 feet and that was when he asked about the perk test.

1. Anderson replied that was the first evaluation of test pits, which were 5 to 7 feet deep. After looking at the County soil information, the subsequent study in November had gone to 15 feet and looked at the soils more extensively.

Member Grosshans said the neighbors [on well and septic] mentioned they went 15 to 20 feet, and if that was the case, wouldn’t you do testing to 22 [feet] .

1. Anderson stated they looked at neighboring well logs and septic field information for existing homes, and there was information on clay to 22 plus [feet] , static water and ground water holding. He said they took their data for soil evaluation and met with the Environmental Health Department, and their comment was that the soils are not conducive to septic fields and wells. He said that given the materials found at those depths and understanding the area, it is their opinion that septic field construction is not appropriate for this site. He said Mr. Spencer's report stated that there are 30 approved septic fields within 2,000 feet of the site; although interesting, it is not relevant to the site because soil formations change across every site. To state there are approved septic fields thousands of feet away doesn’t necessarily doesn’t speak to the soil formation on this site.

Member Grosshans asked that if you had gone down to 20 feet, might you have gotten dry sand.

1. Anderson stated their conclusion was no.

2. Anderson continued, stating they looked at the 30 sites, and generally those with functioning septic fields are three acres and larger. He said this [1-acre] size lot would substantially limit the yield they could get from the property. He said they never claimed they could not get an acceptable field out there, but they believe they cannot get a reasonable number of them. He said they might be able to get 8 to 10 acceptable perks at the end of the day. He said they do not believe this is a fair and acceptable yield given the location of this property.

3. Anderson stated the Township has indicated that about 42 lots could be developed with well and septic for about $30,000 each. Including land cost and appropriate profit you have a $50,000 developed lot. With water and sewer, he said you are looking at a $70,000 development cost.

4. Anderson said there have been projections by the Township that show a fair and reasonable return with well and septic on this site. He added this would assume the 42-one-acre lots would be an appropriate yield if there was great sand on this site. He said if they got 15 good sites, and using the same figures, these lots would cost $140,000 to develop. He said with this cost the homes would sell for about $600,000-$700,000 and he did not believe there is a market for them. He said they have heard from several different home developers that have said there is no market in that location.

   Chairperson Naik asked if this projection was for 15 lots, which would be over three (3) acres per lot.

   1. Anderson replied yes, at best, adding he did not think they would get 15.

   2. Anderson continued by stating hypothetically the case with 42 lots in R-1A with water and sewer. The Township estimates the cost at about $2,000,000 to develop, and there are a few things that were not included in those cost estimates, including franchise utility. The Road Commission will require a center left turn lane, and there are landscaping, street lighting, street trees, signage, water and sewer benefit charges and others fees such as legal and sales cost. The result is an $85,000 to $90,000 total development cost per lot, with a general home price range of $350,000 to $450,000 per home. He did not believe there is a market or that this is the place for such homes. He gave some background on the expertise of Atwell-Hicks, stating they are the largest land developer in Michigan; they have worked for every large developer in SE Michigan, including Pulte, S. R. Jacobson, Centex, Peters Building, Guenther and others.

Member Resha asked if it is going to cost $85,000 per lot and if we're dealing with 42 lots with water and sewer, how can you do it cheaper for 126 lots.

1. Anderson stated the denominator grows substantially and construction cost doesn’t go up. He said the R-1A lots are 150 foot minimum, and running water, sewer, curb, gutters, sidewalks etc. are very expensive and rarely done. He stated that if you have a 70 foot lot, like R-1B, then the costs are nearly half and the lot is more marketable and reasonably priced. He stated that for 30 years this property was R-1B, 2.5 units per acre and had potential access to public utilities. He said this site is in the Milan school district, adjacent to a 70-unit subdivision with public utilities, flat, with no interesting features and has clay soils. He pointed out the differences between [this property and] some other developments in the area including the Willow Pond subdivision that has Ann Arbor Schools, and Hunter’s Pond, which is a very small development with 10 lots that he was not sure could be considered successful; but it has rolling terrain and is in Saline Schools, and not comparable to this site. Brookview Highlands is very high end with half-million dollar homes, Saline Schools, near the downtown and has 120 lots, rolling topography, and great shallow dry sandy soil. He said it is nothing like our site.

Chairperson Naik asked if the Saline Schools are supposed to be good.

1. Anderson replied that Saline is perceived to be good. He said that it is all market driven and Hunters Crest is not a development, Sand Creek is a small development in the Milan School District, and Legacy Heights of Peter’s Building is in the Saline School District. The developer [of Legacy Heights] did 46 test pits and found sand, which was completely different from the Arbor Oak site.

Member Brostrom asked how large the Peter’s project is.

1. Anderson stated he did not know but thought it was 46 lots, roughly 30, 000 square feet per lot, and possibility a 50 to 60 acre site.

Member Brostrom stated he was reviewing the Arbor Oaks map of the test borings and there were 19 as compared to 46 borings in the Peter's Development. He said he wondered if the number was adequate and added that he did not know the difference between test pit and soil boring. He noted there were 12 test pits and 7 soil borings over 60 acres.

1. Anderson stated the test pits are done with backhoe excavation. Those were the ones originally done at 5 to 10 feet. He said that for a general investigation they are done one for each 5 acres.

2. Jon Caterino, of Boss engineering, stated his work experience in the field of sanitary engineering and public health since 1973, including the State of Michigan Department of Public Health, the MDEQ, the military and Washtenaw County Environmental Health. He said he has 28 years of experience working with subdivisions in Michigan. He said he was asked to discuss on-site sewage issues. Generally, State requirements for on-site sewage disposal for a subdivision are more stringent than local county sanitary codes because of the more dense development. He noted that the sanitary code in the Washtenaw County code is one of the better ones in the State and is very similar to the requirements in the State code. He said that if you are proposing a subdivision, the first question is whether sanitary sewer is available and accessible. He said if it is, then it must be utilized. He said the Township has control over where sewers are built; but once the sewers are built, there are State laws, the public health code, the public land division act, county statutes, county sanitary codes and your own Township ordinance that dictate that it has to be used. He said you cannot build sewer systems and not use them. They cost money to build and to operate. Therefore, you need customers. He said if you don’t have flow that is consistent with the size of the sewer, there will be problems and backups.

He said that if sewer is not available, the State is looking for about 4 to 6 feet of dry permeable soil for subdivisions. He added that if you do not have 4 to 6 feet of dry permeable soil, then, under certain conditions, if you can [find] such soil at deeper depths, you can utilize it. He noted from a 1989 memo that "deep cuts should not be made into or through saturated soils," and if there is any water table in the top 20 feet that you have to cut through to get to sand, you can’t do it. He also said if you cut through clay to get to wet sand, you can't do it. He said the decision was made to protect people who [have wells that] use shallow aquifers.

Member Grosshans asked if there is a difference for the times of year.

1. Caterino replied that they are always evaluating seasonal high-water tables using a worst-case scenario, which is the spring of the year. He said they don’t want to cut into saturated conditions any time of the year to protect aquifers and to get proper treatment of septic tank effluent. He added that if the water table is coming up into the sand in the spring, then you do not get proper treatment and it is not permitted to use that sand. He said the 1989 soil map of the site shows that it is subject to ponding in the spring, meaning water is on top of the soil. He also said the ground is flat with very little slope (1-2%) and you would not be allowed to develop these soils with individual on-site sewage disposal systems under State rules. He briefly discussed percolation rates for acceptable soils and said that he felt the soils were five (5) times worse than the Washtenaw County Health Department's requirement and more than six (6) times worse than the State's requirements. He said the water table fluctuates between two and ten feet. He said if they dug to 15 feet and were in water, going to 20 feet means they would still be in water. He said the soil textures here for a subdivision on well and septic are not suitable under the State rules and would not be approved. He said, as an engineer working for developers, he would say if a sanitary sewer is not available, do not buy the site. He added that under the County rules, there are some systems that could be built, if there is a 6 to 15% grade.

Member Grosshans asked about the soils and whether they were surface soils.

1. Caterino said soil logs go down to 60 inches and that from his past experiences working for the State and County he felt this site is not suitable for development without the use of public sewer.

Member Grosshans asked if he was considering this site for development, would he decide not to buy it.

1. Caterino replied that the first thing to do is find out if the sewer is there, and if the sewer is there, then you get to use it.

Member Grosshans asked if the number of test borings was acceptable for a development like this, or should there have been more.

1. Caterino stated at this preliminary stage the number was more than adequate. He said normally you do one boring for every four/five acres and you look at soil conservation service maps; then you go out and do a half a dozen or a dozen borings on the site, and if that confirms the soil conservation service maps, then you say no and find something else. He added if the soil maps say you will find good sand and you find it, this may explain why there were 46 on the other development. He said that the current practice by the State and County Health Departments is that at the time they approve the final subdivision for individual on-site sewage systems, they will want a boring on every lot. He said even with the good sands further south, the soils can change quickly. He said in Livingston County, where he worked for 25 years or so, the soils can change in 100 feet. He said after the initial borings, they lay out the site maps and dig every hole. He stated they still call it perking, but it’s old terminology and no one does perkings any more. He added they weren’t doing perk tests in 1973, when he started.

Chairperson Naik called a brief recess and said the meeting might not conclude that day. He said that with all the information they may not be able to reach a decision and would likely schedule another meeting.

1. Jacobs agreed.

Chairperson Naik called for a ten-minute break at 8:50 p.m.

At 9:00 p.m. Chairperson Naik called the meeting back to order.

1. Jacobs stated that Mr. Jacobson went to the Township and was told water and sewer were available and that the properties on either side were already zoned the same. He said Mr. Spencer stated in his report that they had never asked the Board for sewer service, but they did and were denied because they were not in the sewer and water district. He stated that they talked with Brad Strader of LSL (Langworthy, Strader, LeBlanc & Associates) and were told that the Township said the property was not in the district and to make it R-1A. He said you cannot zone property to remove it from a district and you cannot deny sewer, because YCUA has capacity. You cannot deny it on the basis of whether there is future capacity. He said a report from Mr. Mulvany stated there is no agricultural value to the property, it cannot be used for farming. He said your Ordinances say you must connect, if sewer is available. He said Atwell-Hicks has established there is future capacity and a 1998 staff memo states the Township will have to renegotiate its contract with YCUA.

2. Jacobs continued and said there is little land available in the service district. He stated Jon Caterino, Atwell-Hicks, and the County Health Department said that if there is public sewer available you must hook up; and you cannot develop 46 separate septic fields on this property. The soils are not appropriate. The County Health Department and Atwell-Hicks have both stated that you cannot use them. He said a hardship has been created that is not self-created. He stated the applicant didn’t create the soils on the site, the applicant didn’t place the site close to US 23, the applicant did not Master plan [Comprehensive Plan] this property, and the applicant did not remove the property from the water and sewer district. He said they believe the Township did this to control density. He said that with R-1A zoning a reasonable return on the property is impossible; the property is worthless. He said the ZBA has the right to grant a variance for density that is consistent with the need for sewer and water; and it has the right to grant a variance to allow development at a density resembling R-1B to allow a reasonable use of the property without rezoning.

3. Jacobs said that Mr. Spencer said just because it is not economically feasible or reasonable does not mean that you cannot develop this property. Mr. Jacobs stated they have unique circumstances with this property. He said they have water and sewer right at their property and the development is compatible with the neighborhood. He said the sewer is available and has capacity. He said the Township stated the removal from the district was to save future capacity. He said this amazed him because everything he has read from the Township says it is for future capacity. He then asked what is future capacity for: if this is not it, what is? He said the Board has the sole power to right a wrong, and all the requirements have been met. He said you have to look at the record: there are no non-conforming uses and this use does substantial justice and is in the spirit of the Ordinance.

4. Jacobs stated that Atwell-Hicks did a good job in the evaluation of the figures from Mr. Spencer’s report. He said that he and Mr. Spencer both agree there are no negative impacts from development on this site for schools or the Township. He said a traffic study was done by Birchler Arroyo and some said the study was not specific enough; it was not required, but it was done. He stated traffic would have a marginal impact.

5. Jacobs said in conclusion: we believe we have shown the soils are not suitable; we cannot build and make a reasonable return with wells and septic; there is no need or market for one-acre lots. We have demonstrated water and sewer is available and the fiscal impact will be a benefit to the Township. The hardship is not self-created, and we ask you to review this material. He stated they felt Mr. Spencer’s figures were flawed.

6. Laidlaw asked Mr. Jacobs if he was seeking a variance of the Comprehensive Plan.

7. Jacobs stated they were seeking a variance from R-1A.

8. Laidlaw asked whether he contended that R-1A prohibits water and sewer.

9. Jacobs stated the R-1A Zoning Ordinance categorically prohibits them from having sewer and water. He added the category has been defined by the master plan and does not allow water and sewer.

10. Laidlaw asked if that was a Yes or No answer.

11. Jacobs said R-1A presupposes there should be septic and well. Mr. Laidlaw asked if this property were to have public utilities, would the only hardship be density, and would an increase in such make this development feasible?

12. Jacobs stated he was claiming they cannot economically develop the property with septic and well and without R-1B density.

13. Laidlaw asked if they have applied for a sewer connection permit.

14. Jacobs replied they have not; it was never offered, and that Mr. Laidlaw should confirm that by reading the transcripts.

15. Laidlaw said the Comprehensive Plan only recommends and does not state the property should not be served by utilities.

16. Jacobs said he was only stating what is in the Comprehensive Plan, and what Mr. Laidlaw does not understand is they are not able to have sewer and water.

17. Laidlaw said if sewer and water were permitted in R-1A, would the hardship be relieved?

18. Jacobs replied that he did not say that. He added that they cannot develop one-acre lots, there is no market for them, so the answer to your question is that R-1A is not appropriate.

19. Laidlaw asked whether he needed to go to 2.5 units per acre.

20. Jacobs stated that if Mr. Laidlaw wanted to negotiate a settlement, then he would be glad to talk to him on that matter.

Member Grosshans ask if R-1B means the property has sewer and water, and if with R-1A it has to be on well and septic?

1. Jacobs replied that was correct.

Chairperson Naik said the Ordinance does not necessarily allow you the right to connect.

1. Jacobs said he disagreed, and added that the Township Ordinance is in conflict with the utility ordinance and the definition of public sewer and the requirements to hook up. He said the Township feels it is necessary to have one-acre home sites, but the developmental costs are not reasonable.

Chairperson Naik asked if the economics of the development costs are in the picture rather than just reasonable use. Mr. Jacobs stated it is not only that. He said the case of Jansen versus Holland Township could be instructive. He said in this case farming was a permitted use, although a change of circumstances made this use no longer viable. He said farming is not productive unless it is mechanized. He said viability, utility and economic expectation of return on investment was not present in this case. He said viability can only be achieved on what was there and that is why a variance was being requested.

1. Laidlaw asked Mr. Jacobs, where in R-1A does it state you cannot have water and sewer?

2. Jacobs read the purpose of the R-1A district from the Ordinance.

Member Resha stated that this does not stop the Township from granting the use of sewer and water. He said you are saying R-1A is not good enough because you cannot make enough money.

1. Jacobs said your Ordinance and the Master Plan state that R-1A should be served by septic and well, and R-1B is not. We are asking for you to relieve us of this hardship.

Member Resha said you're asking for a zoning change.

1. Jacobs replied that he disagreed.

Chairperson Naik said the Board would take some comments from Mr. Spencer and possibly reconvene.

Zoning Administrator Spencer stated he had some comments on a few statements made tonight and then he would discuss items from his report. He said Mr. Anderson incorrectly said the sewer line was built to service this property; in fact it was put in to service the prison and the Forensic Center.

Member Grosshans asked if this line goes to Bemis Road.

Zoning Administrator Spencer said yes and a little further south. He said the Township recently learned the prison is removing 500 men and bringing in 800 women and the State controls what can be put through the force main. He said that Atwell-Hicks has stated there is nothing to preserve on this site; but there are 20 acres of woods and wetlands and he wondered how they missed them. He stated that many areas of the Township have one-acre lots, and he named Hunter's Pond, Brookview Highlands and others. He said many areas average one-acre density including Stonebridge and Lake Forest. He also said infrastructure cost could be lowered with clustering, if done per Article 56 of the Ordinance.

Zoning Administrator Spencer stated he would present his full report at the next meeting. He also reminded the Members that the estimates from Ayres, Lewis, Norris & May for the roads and utility lines were extremely over-estimated. He said he had always heard it is possible to make a profit from a development. He stated the applicant had not submitted figures to support their statement that R-1A was not viable. He said he would be happy to review them when submitted.

Motion by Member Resha, supported by Member Stagg, to postpone ZBA 02-07 Arbor Oaks until the next scheduled meeting.

Discussion:

Chairperson Naik asked if it will be necessary to publish a notice of the date.

Zoning Administrator Spencer stated the Township could mail the surrounding residents notice since there were some that had left the meeting and did not have an opportunity to speak.

Members and Staff discussed having time to review the information.

1. Jacobs agreed with the postponement and asked for advance notice of the meeting.

MOTION CARRIED

Zoning Administrator Spencer stated he would like to ask for three weeks and would like Engineering to attend in order to address issues at the next meeting.

Chairperson Naik stated the meeting could be three weeks from today.

Zoning Administrator Spencer suggested a deadline could be set for submittals.

Members discussed various dates and agreed on March 22, 2004 at 6:30 p.m. in Morris Hall for the next meeting, with a deadline for all submittals on March 15, 2004 by 5 p.m.

Zoning Administrator Spencer told the Members that they would receive the submitted information on March 16, 2004.

Chairperson Naik stated the next ZBA meeting will be held March 22, 2004 at 6:30 p.m., with the submittal deadline on March 15, 2003 by 5 p.m.

7.0 New Business

None.

8.0 Zoning Administrator’s Report

None.

9.0 Member’s Report

Members and Staff briefly discussed attending Spring workshops offered by MTA. These are basic zoning sessions and everyone is welcome to attend. It was also stated there are funds available within the budget to pay for educational classes. A number of members expressed interest in attending.

10.0 Secretary’s Report

None.

11.0 Chairperson’s Report

None.

12.0 Approval of Prior Minutes

Motion by Member Resha, supported by Member Grosshans, to approve the minutes of October 27, 2003, with corrections.

MOTION CARRIED

13.0 Adjournment

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

MOTION CARRIED

Chairperson Naik adjourned the meeting at 9:07 p. m.

s/Alayna Stagg, Secretary May 24, 2004