REGULAR MEETING July 19, 2004 6:30 P.M.
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PITTSFIELD TOWNSHIP ZONING BOARD OF APPEALS MINUTES
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Members Present: Edward Resha, Alayna Stagg, Robert Grosshans, Ishwar Naik, Kenneth Brostrom.
Members Absent: None.
Others Present: Mohamed Aly-Khalafalla, Richard Clark, Gregory Elliott, Michael Belevender, Gail Monds, Michael Ignaffo, Keith Hickmon, Tom Thornton, Assistant Planner Paul Montagno, Zoning Administrator Mark Spencer, and Recording Secretary Laura Ford.
1.0 Call Meeting to Order/Determination of a Quorum
Chairperson Naik called the meeting to order at 6:33 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 New Business
5.1 ZBA 04-05 Rosewood Village LLC
[submitted to appeal the Zoning Administrator's decision]
Zoning Administrator Spencer stated that on March 24, 2004, the Washtenaw County Road Commission (WCRC) stated in a letter to Rock Construction that their access permit had expired. He said on April 8, 2004 he notified Rock Construction that it was his administrative decision to withhold zoning clearances, building permits, and Certificates of Occupancy
(C of Os) until the WCRC permitted access to the project. He said Rosewood filed a lawsuit instead of appealing the decision to the Zoning Board of Appeals (ZBA). He said Rock Construction asked the court to make the Township issue the zoning clearances, building permits, and C of Os. He added that this request was denied. He said that on July 12, 2004, Rosewood Village LLC applied to the ZBA for an appeal to reverse the administrative decision. He said Section 60.01 Paragraph C of the Zoning Ordinance states appeals cannot be filed more than sixty (60) days after a decision was made. He recommended at that time that the ZBA not take any action on this matter. He referred to two (2) letters from the Township Attorney. He suggested that the members adjourn to an executive session of the ZBA to discuss the letters with the Township Attorney.
Chairperson Naik stated that this issue involves attorney-client privilege.
Motion by Member Resha, supported by Member Brostrom, to adjourn to the executive session.
MOTION CARRIED
Chairperson Naik adjourned the meeting at 6:39 p.m.
Chairperson Naik called the meeting back to order at 7:02 p.m.
Chairperson Naik stated that ZBA members had received material today from Mr. Elliot which they would like to give to staff for review. He said a preliminary matter was the timeliness of the appeal. He said this appeal was not filed within the required sixty (60) days. He said the petition was filed on July 12, 2004, which was approximately one hundred and two (102) days after April 8, 2004. He said Section 60.01 C. of the Zoning Ordinance states that “Appeals shall be taken within a reasonable time, not to exceed sixty (60) days.”
Member Grosshans stated Section 60.02 of the Zoning Ordinance states, “The Board of Appeals shall hear and decide only those matters which it is specifically authorized to hear and decide as provided in this ordinance.”
Member Brostrom stated the ZBA has no jurisdiction to hear this appeal at this time.
Greg Elliot, Attorney representing Rosewood, asked if he would be allowed to speak on the petition.
Chairperson Naik stated the Members have all of the information they needed at this time.
Member Brostrom stated the Ordinance is straight-forward and clear on this matter. He said there was no other option for the ZBA at this point.
Motion by Member Brostrom, supported by Member Grosshans, to not to take action on ZBA #04-05 Rosewood, to reverse Zoning Administrator Spencer’s decision of April 8, 2004 regarding Rosewood Condominiums, because the petition was not filed in a timely matter, and therefore the Zoning Board of Appeals had no jurisdiction in the matter.
Section 60.01 C of the Zoning Ordinance states “Appeals shall be taken within a reasonable time, not to exceed sixty (60) days.”
Section 60.02 of the Zoning Ordinance states “The Board of Appeals shall hear and decide only those matters which it is specifically authorized to hear and decide as provided in this ordinance.”
Therefore, the ZBA is not allowed to hear this petition because of the way the Ordinance is written.
ROLL CALL:
YES: RESHA, GROSSHANS, NAIK, STAGG, BROSTROM.
NO: NONE.
ABSENT: NONE.
ABSTAIN: NONE.
MOTION CARRIED
Mr. Elliot stated this item was on the agenda, and Chairperson Naik stated that the public would be given an opportunity to speak on the agenda items.
Chairperson Naik stated Mr. Elliott could make a short comment.
Mr. Elliot stated that he was present without receiving staff’s comments. He said the petition was submitted on July 12, 2004 and the report submitted tonight, dated July 19, 2004 was supplemental. He said this matter was not discussed in a public session. He said if the ZBA had reviewed this report, it would have found that Rosewood Village had no notice of the Zoning Administrator’s decision. He said the decision by the Zoning Administrator was addressed to the builder of Rosewood Condominiums and not to Rosewood Village, LLC. He said the Ordinance is not clear on the time limit, and the ZBA had failed to discuss latter sections that deal more specifically with administrative appeals that do not provide a time limit for appeals. He said that within the sixty (60) day period Mr. Cohen, representing Rosewood LLC, contacted Mr. James Walter, the Township Supervisor, regarding Zoning Administrator Spencer’s interpretation of the Ordinance. He said Mr. Walters told Mr. Cohen to provide a written position, which he did on June 8, 2004. He said that correspondence was not responded to by Mr. Walter. He said for those reasons the ZBA should have jurisdiction to hear this matter. He said the ZBA should have heard him before it took action.
6.0 Old Business
6.1 ZBA 03-08 Jasinski
[requests a variance to use an existing non-conforming road for access to 7465 Fosdick Road, Section 33, parcel #L-12-33-100-041]
Chairperson Naik stated a letter was received from the Township attorney stating that there is a court order granting this appeal, and directing the ZBA to grant the variance request.
Zoning Administrator Spencer stated the Judge ordered the ZBA to grant the requested variance.
Member Grosshans asked if this variance was the one with the gravel road. He then asked what the variance request stated.
Zoning Administrator Spencer stated the applicant wanted to improve the road by adding gravel shoulders to the paved driveway.
Member Brostrom asked if the Judge approved this.
Zoning Administrator Spencer replied yes, for this house only.
Member Resha asked if extra gravel was done on the road.
Zoning Administrator Spencer stated this is not an issue tonight.
Member Resha asked if it was done.
Zoning Administrator Spencer stated that he had not been notified that this had been done.
Member Resha stated the applicant did not follow the guidelines of the agreement.
Zoning Administrator Spencer stated the applicant does not have to do so, until he is ready to occupy the house. He said that issue will be brought up when the C of O is requested.
Member Brostrom stated there were concerns with public safety, and if fire trucks could enter the site.
Zoning Administrator Spencer stated the court felt that the ZBA did not make enough findings on the record. He said the Judge did not have any findings to consider, and he ordered that the variance be granted.
Member Grosshans asked if the Board could vote this issue down.
Zoning Administrator Spencer stated that if they did, they could be in contempt of court. He said this involved a court order and the ZBA was a named party in the lawsuit.
Member Resha asked what the modifications were.
Zoning Administrator Spencer stated that as modified, it would be what was in the application. He said this was to provide an extended road and a
turn-around.
Member Resha stated this could not be approved because it was not modified. He said the court order stated, “as modified.”
Member Grosshans asked if the modification would be completed first and then the ZBA would approve it.
Zoning Administrator Spencer stated the modifications would need to be done before a C of O is issued. He said the ZBA should take action on this matter now.
Member Grosshans asked if the ZBA could appeal the court’s decision.
Zoning Administrator Spencer stated that the Township attorneys were recommending that the ZBA not go to the appeals court on this matter. He said the Township attorneys agree that it was right for the Township to deny the applicant on this matter on the staff level and on the ZBA level.
Member Resha stated that the applicant had not upheld his end of the bargain.
Zoning Administrator Spencer stated that there was a lack of record for the court to review.
Motion by Member Resha to call the question.
Chairperson Naik asked which members were in favor of the call for the question.
YES: GROSSHANS, RESHA
NO: NAIK, STAGG, BROSTROM
MOTION FAILS
Member Stagg asked if stipulations could be made to make sure (driveway improvements) are done before a C of O is granted.
Zoning Administrator Spencer stated that if the improvements were not done the applicant would be in contempt of court. He said the court did not order the Township to give the applicant a C of O.
Member Naik recommended changing “due to” to “in compliance” in the motion.
Member Brostrom accepted the amendment.
Motion by Member Brostrom, supported by Member Stagg, that in compliance with the order of Judge Conners, of June 24, 2004, the Pittsfield Charter Township Zoning Board of Appeals hereby grants the petitioner’s request in the matter of case number ZBA 03-08, to use the existing non-conforming road, as modified, for access to 7456 Fosdick Road, parcel #L-12-33-100-041, to permit a building permit to be issued to said parcel.
ROLL CALL:
YES: RESHA, STAGG, BROSTROM, NAIK
NO: GROSSHANS
ABSENT: NONE.
ABSTAIN: NONE.
MOTION CARRIED
6.2 ZBA 04-04 Mohamed Aly-Khalafalla
[submitted for use variance]
Zoning Administrator Spencer stated a variance request was submitted on July 7, 2004, to permit a two-family dwelling on the subject property. He said Section 57.02 that states a non-conforming use cannot continue if abandoned for more than 180 days. He said a variance from Section 57.02 (as requested) did not clearly indicate the nature of the applicant’s request. He said the request was published as a variance to Section 21.02, permitted uses, in an R-1B district, to permit a two family dwelling at 2472 Hawks Avenue. He said the R-1B Zoning District that this property is in does not permit two-family dwellings. However, he said the building was used as a two-family dwelling for many years.
Zoning Administrator Spencer stated that after 1970 this use became a
non-conforming use in this Zoning District, when the Zoning Ordinance was adopted. He said before November of 2002 the two-family use was abandoned. He said the ZBA could ask the applicant to confirm that date. He said a real estate listing from November 5, 2002 states that this home was once a duplex. He said that in December of 2003 the applicant applied for a permit to extensively renovate the building, which included replacing structural support walls. He said Section 57.02 states, “If such non-conforming use of a parcel or lot ceases for any reason for a period of more than 180 consecutive days, the subsequent use of such parcel or lot shall conform to the regulations and provisions set by this ordinance for the district in which such parcel or lot is located.” He said the two-family use ceased after more than 180 days.
Mohamed Aly-Khalafalla, applicant, stated that this property was listed for sale in December 2002. He said the property was shown as a duplex with two units, one upstairs and one downstairs. He said each unit has two entrances. He said he started to remodel the home and his first application was to replace the roof. He mentioned he bought this property from a bank and it was a foreclosure. He said the property was abandoned for approximately one year before he purchased it. He said he had no reason to think the property was to be used for anything other than a duplex. He said on the building permits they circled the use as “two family.” He then showed a copy of the permit.
Mr. Aly-Khalafalla stated that his contractor found many problems in the house. He said they brought everything up to code. He said he did not know there would be a problem with the duplex use, and he was not aware of the 180 day time limit. He said he found out there was a problem with two units was when he tried to get two water meters. He then showed pictures of the property, which showed that the air conditioning, heating, and plumbing were separate for the units.
Member Resha asked if the units had separate utilities before he purchased the house.
Mr. Aly- Khalafalla stated there were two water heaters when he purchased the house. He said he separated the electric for the units. He said it had cost him $85,000 to remodel the home, and he owes his contractor $99,000. He said the home was not up to code and there were a number of problems.
Chairperson Naik asked Mr. Aly-Khalafalla how much he owes for the home.
Mr. Aly-Khalafalla stated $99,000. He said he never thought he would have these problems.
Member Resha asked how the property was marketed by David Fuller, and if it was marketed as a duplex.
Mr. Aly- Khalafalla stated the real estate agent said it was used as a duplex.
Member Grosshans asked if Mr. Aly-Khalafalla was not arguing the fact that the property was abandoned for over a year.
Mr. Aly-Khalafalla replied no. He said he had no reason to think of this home as anything other than a duplex. He then showed the members of the ZBA pictures of the home before he bought it.
Member Grosshans asked what the neighbors think about this home being reconverted back to a duplex.
Mr. Aly-Khalafalla stated his neighbor is okay with a duplex.
Member Resha asked if there are any other non-conforming duplexes in the area, and how long have they been there.
Zoning Administrator Spencer stated there are approximately three. He said based on the findings, the ZBA cannot consider other non-complying structures in making a decision. He said he did not research this because of that fact.
Member Stagg stated the ad for the house states the information (in the ad) is believed accurate but not guaranteed.
Mr. Aly-Khalafalla stated he did not look at the area when he bought the property. He said he saw a for-sale sign, and if he had known it was
non-complying, he would not have purchased it.
Chairperson Naik stated the ad suggests the home needed a lot of work.
Member Stagg stated the ad said this home was once a duplex.
Mr. Aly-Khalafalla stated he has spent used a lot of money. He said when he found out that he had to ask if the property was a duplex, he came to the Township and was informed that it was unoccupied for over 180 days and he cannot use it until he submits something. He said he followed the procedure and submitted for a change in zoning. He said there was supposed to be a hearing and he paid the fees. He said a week before the hearing he was notified that this was not the right thing to apply for. He said he then withdrew the application, and filed a petition for a variance. He added that he tried to follow the procedures.
Chairperson Naik asked the applicant when he found out that the home could not be used as a duplex.
Mr. Aly-Khalafalla stated he found out when he applied for two water meters.
Chairperson Naik asked if it was approximately in 2003.
Mr. Aly-Khalafalla stated it was sometime after the first permit was applied for.
Member Resha stated the building permit was issued on December 19, 2003. He asked if all of the renovation was completed after this time.
Mr. Aly-Khalafalla replied yes.
Member Resha stated the applicant received a permit in 2003, and he has been working on the home ever since. He said it came to the attention of the Planner when the applicant applied for two meters.
Member Stagg asked what the date was when the applicant applied for water and was told of the situation.
Mr. Aly-Khalafalla stated approximately last fall. He said the first permit was for the roof. He said he applied for four (4) different permits for remodeling.
Zoning Administrator Spencer asked if the applicant applied for the water meter before the building permit.
Mr. Aly- Khalafalla replied no. He said he applied for the water meter after the four (4) building permits.
Zoning Administrator Spencer stated that at the time of the application for the remodeling permit, the Building Department was not requiring Planning and Zoning review. He said these permits did not make it to Zoning. He said if staff had known this home was coming through as a duplex, they would have stopped the permit. He said they did have conversations with some people about this property who indicated that this property had been abandoned, and it may have been the realtor.
Chairperson Naik asked if the property was foreclosed.
Mr. Aly- Khalafalla replied yes.
Richard Clark, Clark Improvement, stated he was asked by the applicant to bring the house to code. He said the roof was leaking severely, and he had to pull his people off the job. He said he noticed numerous problems and he contacted the applicant to discuss the cost to fix the problems. He said the neighbors love having the applicant as a neighbor. He said the neighbors saw the property as a problem.
Chairperson Naik asked what the property to the north is.
Mr. Clark stated there is a commercial business in a house. He said the neighbors were concerned with property values. He mentioned there is another duplex down the street.
Chairperson Naik asked if there is another structure three houses to the south.
Mr. Clark stated this home looks like a multi-family house. He said none of the neighbors have a problem with the use.
Member Brostrom asked if the applicant purchased the property as an investment.
Mr. Aly- Khalafalla replied yes.
Chairperson Naik asked if the applicant knew how much he would have to put into the home.
Mr. Aly-Khalafalla stated he talked to Mr. Clark about how much it would cost, and he thought it would be between $10,000 to $20,000, He said they changed the estimate three times.
Chairperson Naik asked the applicant how he paid for it.
Mr. Aly-Khalafalla stated he received a home equity loan.
Member Resha asked if permits were pulled on the first additions to the home.
Zoning Administrator Spencer stated in the 1970’s permits were being pulled through the County.
Member Resha stated there has been a dramatic change in the appearance of this home. He said it is like day and night.
Motion by Member Resha, supported by Member Brostrom, to close the public hearing.
MOTION CARRIED
Chairperson Naik read through the findings:
1. That strict compliance with the restrictions governing density would unreasonably prevent the owner from using the property for a permitted purpose, or would render the conformity with such regulations unnecessarily burdensome.
Member Resha agreed that complying with Section 21.02 would be burdensome for the homeowner. He said the home has been renovated, and the applicant spent thousands to renovate the home, and bring it up to code. He said he does not believe that anyone lived in the home since it was abandoned. He said he does not believe it was used between times as anything other than a duplex.
Member Brostrom stated he agreed with Member Resha. He said the home has been radically improved.
Member Stagg asked if this is approved now, can the ZBA say further down the line that this needs to be a single-family use.
Zoning Administrator Spencer stated if this were approved, the duplex would remain the approved use. He said there could be a condition that it is only these two units. He said the ZBA could clarify that they do not want the home expanded to a bigger two dwelling unit. He said the ZBA may want to address other burdensome factors other than the investment.
Member Brostrom stated that if the applicant had to change the use into single family it would be very expensive. He said to renovate this home into a single family unit would be burdensome.
Chairperson Naik stated the applicant spent $80,000 on improvements.
Member Resha stated the applicant purchased the house as a two family home, not a single family home. He said in the advertisement it states it was used as a two family home. He said there was nothing in the listing stating it was non-conforming. He said the applicant had spent a large amount to bring this home up to a safe two family dwelling. He said it has never been used as anything other than a two family dwelling since it was foreclosed.
Zoning Administrator Spencer stated the ZBA should decide if the use was abandoned.
Member Resha stated he thought the home was foreclosed, not abandoned.
Chairperson Naik stated they have maintained the spirit of the Ordinance. He stated the statement by Member Resha makes a lot of sense. He said the home was purchased in 2002, the applicant applied for a permit, and then he found out that the use was non-conforming. He said the applicant had met the burden.
Member Grosshans asked if the duplex was empty for more than 180 days, would it lose its use.
Zoning Administrator Spencer stated the Ordinance says that if a
non-conforming use is discontinued for 180 days, the subsequent use shall conform to the Ordinance.
Member Stagg stated the applicant applied for permits, and he did what he thought he was supposed to do. She said the applicant was not told until later that the intent was not appropriate.
Zoning Administrator Spencer stated the findings are that the investment made was burdensome, converting this home back to single-family would be burdensome, and the home would be less profitable as a single-family home.
The Members all agreed with Finding #1.
2. That the granting of a variance would do substantial justice to the applicant as well as to other property owners in the district would give substantial relief to the owner of the property and be more consistent with justice to other property owners.
Member Resha stated the applicant obtained four building permits, brought the home up to code, beautified the neighborhood, and raised the values of the neighboring homes. He said this would do substantial justice to the applicant and the neighbors.
Chairperson Naik stated this was all done in good faith by the applicant.
The Member’s all agreed with Finding #2.
3. That the plight of the applicant is due to unique circumstances of the property and not to general conditions in the area.
Member Brostrom stated he agreed with the finding.
Member Resha stated the plight was not due to the circumstances or conditions of the area. He said this home does not take away from the value of neighboring homes now, although it did before. He said the property and the area has been upgraded.
Chairperson Naik stated the home was a duplex, and to have it act as
single-family would be expensive and impracticable.
The Member’s all agreed with Finding #3.
4. That the plight or problem is not self-created.
Member Brostrom stated this was unfortunate for the applicant. He said there was a lack in communication. He said the applicant was unaware of the problem he was going to confront. He said if staff had known early on what was intended, they would have communicated immediately with the applicant. He said he cannot see that staff or the applicant was at fault.
Member Grosshans stated the home looked like a duplex, and was renovated as a duplex.
The Members all agreed with Finding #4.
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.
The Members all agreed that this was not considered.
6. That the variance observes the spirit of the Ordinance, secures public safety, and does substantial justice.
Member Resha stated he agrees with the finding, and the home is now safer for the neighborhood.
Zoning Administrator Spencer stated the ZBA should consider how many off street parking spaces are provided. He said there should be a condition that four (4) parking spaces are provided. He said there is probably enough room on the side of the home to have a concrete or asphalt driveway large enough for four (4) cars.
Mr. Clark stated there is enough concrete now to park four (4) cars.
Zoning Administrator Spencer stated he is fairly happy with this if the concrete is maintained.
Mr. Clark stated the concrete will be fixed.
Member Grosshans asked if four cars could get in and out of the spaces easily.
Mr. Clark stated he had numerous large trucks parked here and he never had to move other trucks to provide more room. He said on the first building permit application he crossed out single-family and put in two family. He said he wanted this to stick out in case there were any problems. He said they did not know of the problem until they tried to get two water meters.
Chairperson Naik stated there have been many improvements to the home. He said the building is safe now and it was unsafe before the renovation.
Zoning Administrator Spencer stated the request for the four spaces as a condition can be withdrawn because the concrete is already there.
Member Grosshans stated this still needs to be a condition.
Mr. Clark stated there is about thirty (30) feet for people to park on.
Member Resha stated it could support six (6) cars.
Member Grosshans stated he would like staff to see the site and the parking area.
Zoning Administrator Spencer stated that he would do so.
The Members all agreed with Finding #6.
Motion by Member Grosshans, supported by Member Stagg, to recess the meeting to allow staff to prepare a resolution based on the findings.
MOTION CARRIED
Chairperson Naik called for a recess at 8:21 p.m.
Chairperson Naik called the meeting back to order at 8:31 p.m.
Motion by Member Resha, supported by Member Brostrom, to approve petition ZBA #04-04 Mohamed Aly-Khalafalla, to permit the use of 2472 Hawks Avenue, for a two family dwelling based on the following findings:
1. That strict compliance with the restrictions governing density would unreasonably prevent the owner from using the property for a permitted purpose, and would render the conformity with such regulations unnecessarily burdensome.
A. Because an investment (for remolding) was made of over $80,000.
B. The cost to convert back (to single family) would be excessive.
C. There would be less chance to get a reasonable return on investment.
2. That the granting of the variance would do substantial justice to the applicant as well as to other property owners in the district, would give substantial relief to the owner of the property and be more consistent with justice to other property owners.
A. The applicant received permits from the Pittsfield Township Building Department.
B. The renovation has beautified the neighborhood.
C. The renovation has increased neighboring property values.
D. The renovation fixed safety issues with the dwelling.
E. The applicant proceeded in good faith.
3. That the plight of the applicant is due to unique circumstances of the property and not to general conditions in the area.
A. The property looked like a duplex when purchased.
B. The home fits into the neighborhood.
C. The use does not take away from the character of the neighborhood.
D. The structure was a duplex since the 1970’s.
4. That the plight or problem is not self-created.
A. The applicant was unaware of the requirements due to building permits being issued.
B. The realtor did not disclose that the duplex use was abandoned.
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 were considered grounds for the issuance of a variance.
6. That the variance observes the spirit of the Ordinance, secures public safety, and does substantial justice.
A. It improves the general area.
B. It makes the building safer.
With the following conditions:
1. Any expansion of the building must be approved by the Zoning Board of Appeals.
2. Must provide a minimum of four (4) off street parking spaces.
ROLL CALL:
YES: RESHA, GROSSHANS, NAIK, STAGG, BROSTROM
NO: NONE.
ABSENT: NONE.
ABSTAIN: NONE.
MOTION CARRIED
7.0 Zoning Administrator’s Report
Zoning Administrator Spencer stated he is looking for sample bylaws, and he will present these in the future. He said the ZBA could set a shorter time limit than sixty (60) days for appeals of administrative decisions.
8.0 Member's Report
None.
9.0 Secretary’s Report
None.
10.0 Chairperson’s Report
The Members and staff discussed holding regular meetings and decided to hold meetings the second and fourth Mondays of the month. They also agreed that the first meeting of the month is on an as needed basis, and the second meeting is the primary meeting.
The next meeting will be held August 23, 2004.
The Members scheduled the following dates for meetings; September 13, 2004, September 27, 2004 (primary), October 11, 2004, October 25, 2004 (primary), November 8, 2004, November 22, 2004 (primary), and December 13, 2004 (primary).
11.0 Approval of Prior Minutes
None.
12.0 Adjournment
Motion by Member Brostrom, supported by Member Resha, to adjourn the meeting.
MOTION CARRIED
Chairperson Naik adjourned the meeting at 8:57 p.m.
___________________________________________________________________
s/Alayna Stagg, Secretary October 11, 2004
