REGULAR MEETING July 20, 2004 6:30 P.M.
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PITTSFIELD TOWNSHIP ZONING BOARD OF APPEALS MINUTES
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Members Present: Edward Resha, Robert Grosshans, Ishwar Naik, Alayna Stagg, Kenneth Brostrom.
Members Absent: None.
Others Present: Sandra Hogue, Robert Jacobs, Jim Pryce, Kenneth & Julie Weiss, James Morris, Mary Cortese, Inok Chung, Woowon Chung, James Rushton, Jon White, Melody Yu, Yu-Faug Yu, M. Dwyer, Jeff Vicars, Steven Cortese, 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 6:39 p.m. A quorum was present.
2.0 Approval of Agenda
Motion by Member Resha, supported by Member Grosshans, to approve the agenda as presented.
MOTION CARRIED
3.0 Communications and Announcements
Chairperson Naik stated there was correspondence from the Zoning Administrator Spencer, and letters from various property owners, concerning Item 5.1.
4.0 Items from the Floor
None.
5.0 Old Business
5.1 ZBA 04-03 Fairwood Green
[submitted for use variance]
Chairperson Naik stated the public hearing for this petition would continue tonight, because of the amount of time the public hearing took at the prior meeting (of July 7, 2004). He said when the meeting was postponed the ZBA was in the process of hearing comments from the residents who are opposed to the petition. He said when the public comments are complete, the public hearing will be closed, and the ZBA members will discuss the petition. He added the ZBA would then go through the findings. He said once this is completed the ZBA will entertain a motion to grant or deny the variance, and then they will have a roll call vote. He said letters were received from the following residents and those letters will be read into the record:
Tushar Dani, 4832 North Ashford Way, stating their opposition to the petition.
Kevin Walsh, 5575 Redbud Court, stating his opposition to the petition.
Kevin Geltz, 5839 Cottonwood Drive, stating his opposition to the petition.
Thomas Powell, 5950 Cottonwood Drive, stating his opposition to the petition.
Kristine Rincher, 4790 Sycamore Drive, stating her opposition to the petition.
Chairperson Naik opened the public hearing.
Kenneth Weiss, 5184 Hickory Pointe, stated the people who live in the subdivisions put time and money into this, and there are quite a few people to consider, not just the owner. He said he does not want the zoning changed; he wants it to stay recreational.
Melody Yu, 4620 Shellbark Drive, stated she is against the rezoning. She said the population density is already high, and the golf course provides a conservation space in the area. She mentioned the animals will lose their place to live if the rezoning is approved. She said the traffic on Crane and Michigan Avenue will get worse. She said the owner of the golf course is trying to make money out of the rezoning instead of improving his business. She said there are things the community can do to help each other. She said there may be potential buyers who want to preserve the golf course. She added that the Township could buy the course and turn it into a park. She said she enjoys the newly built Lillie Park (in Pittsfield Township). She said the rezoning is against the overall direction of the Township’s Environmental plan. She said the residents appreciate the area enough to help pay to pave Crane Road and Munger Road. She said the increased density would overload the existing infrastructure. She said this development would permanently damage the quality of living in this part of the Township.
James Morris, 4883 Sycamore Drive, stated his family purchased their home six (6) years ago because of the neighborhood and the abundant open space. He added that the open space is disappearing quickly. He said just like the golf course owner, he too bought his home as an investment. He added that if the housing industry was to fall and the food industry was to rise, it would not be reasonable for the Township to rezone his property to allow a McDonalds. He said he cannot understand why individuals would expect their property to be rezoned to receive a higher profit from the sale.
Mr. Morris said in the past six (6) years he has never seen a flyer distributed to his neighborhood. He said the neighborhood around the golf course would be a likely candidate for advertisement. He said the residents are not asking for a change to make their quality of life better, they are asking that the property keep its current zoning. He said the people who have spoken in support of this proposal have either made a profit from a similar decision, were paid to speak at the hearing, or could make a profit from this decision. He said the neighbors have invested many hours to attend and speak at the meetings for no other reason than to retain the quality of life they expected when they purchased their homes.
Jeff Vicars, 4695 Sycamore Drive, stated he appreciates that Mr. Fulton would like to maximize his benefit on his property. He said the fact that this would be detrimental to the neighboring property owners has escaped Mr. Fulton’s evaluation. He said the credibility of Mr. Fulton’s so-called experts does not bolster his argument. He said he could not ask the ZBA to look at his investments and grant him relief if he lost money in the stock market. He said if he brought reports to the ZBA, just because he could pay a person to produce the report, this would not validate his claim. He said if a person brought in a report without being paid, it would be less subjective and opinionated.
Mr. Vicars said the owner (of Hickory Woods) has every opportunity to make a profit by either selling his golf course to a potential buyer for another business, or finding a business who wants the land to maintain it as a golf course. He added there are numerous financial manipulations that the owner could pursue that are legal. He said there is expertise that a real estate broker brings, that can push this item through. He said there is no justification for a move that penalizes people who own homes in the area and respect the applicant’s property. He said he was only hearing the sense of investment necessity from the applicant. He said this is a slanted view that is easily manipulated.
Jim Rushton, 4713 Sycamore, stated he moved to the Township over a year ago. He said at that point he was not aware there was a subdivision proposed. He said he checked the zoning of the land and it was labeled as open space, which is what attracted him to the area. He said he strongly supports the Township Ordinance and the existing zoning, and he would like the current zoning to remain. He said he is the Township Assessor, and the taxes on this property have been assessed as agricultural, not commercial. He said the total value is around $500,000, which is equal to approximately two (2) houses in a subdivision. He said the owner has not been paying much in Township taxes.
John White, 4641 Sycamore, stated he is opposed to the rezoning. He said the proposed use will overburden the utilities and the roads in the Township. He said he does not want to see another subdivision between Ashford Village and Hickory Pointe. He said if that happens, there will be subdivisions stretching from Textile Road to Michigan Avenue. He said he has lived here for seven (7) years, and he purchased his property because of the golf course and the green space.
Woowon Cheng, 4747 Sycamore, stated he bought his home because of the open space, and now he is being told that it may be gone. He said he would like the land to be kept a park so the community can enjoy the open space. He said he commutes through Crane Road and Michigan Avenue, and feels the traffic is already congested. He added if this use is developed, the traffic will get worse. He said he would like the land zoned as open space.
Mary Cortese, 4701 Sycamore Drive, stated there are forty-seven (47) acres being represented. She said the witnesses (for the applicant) stated four (4) acres would be woodland, and there would be a four (4) acre park. She said if you take the eight (8) acres away from the forty-seven (47) acres, it leaves thirty-nine (39) acres for 116 homes. She added that the developer wants 2.5 units per acre. She said the math equals 3.3, and she questions the math in the applicant’s claim. She said the square footage of the homes where she lives range from 1,634 to 2,175 square feet. She said the square footage for the homes in the proposed development would be 1,500 to 1,900 square feet, and they would sell for $250,000. She said the applicant’s figures do not compute and they do not make sense. She said the purchasers would be getting a smaller home for a lot more money. She said in the past two (2) weeks the activity at the course has been amazing. She said her mother lives with her and she has said there are many people playing at the course. She suggested that the applicant’s books be obtained so people can see the number of people coming through the golf course.
Mr. Jacobs, Attorney representing the applicant, stated he received a report from Zoning Administrator Spencer this morning that contained some calculations and questions. He said part of the calculations were Mr. Spencer’s idea of certain costs of development.
Chairperson Naik stated the Members also received the report, and it would be best if the Members asked Zoning Administrator Spencer questions about the report and Mr. Spencer could give his explanation.
Mr. Jacobs stated that one of the people quoted in Zoning Administrator Spencer’s report was from Peters Building Company, and that person has provided a letter that explains some of the figures. He said the letter confirms Wexford Development’s figures, and it establishes some of the questions and it answers some of the questions. He then distributed the letter to the Members.
Zoning Administrator Spencer stated he would like an opportunity to review the letter and consult with his associates before he gives a formal response to the new information. He said his report is a response to the numbers that were presented at the prior meeting. He said if the ZBA finds there is a hardship, staff would like to submit reports that are more detailed. He suggested that the ZBA request more information at this time, so they can determine what would be a reasonable return on the property if a hardship is determined.
Motion by Member Brostrom, supported by Member Resha, to close the public hearing.
MOTION CARRIED
Chairperson Naik asked Mr. Jacobs if his petition is for a zoning change from Recreation to R-1B.
Mr. Jacobs replied no. He stated the petition indicates that single-family housing is a permitted use. He said they are asking for a variance from the standards because there are no real standards under the RC zoning. He said they are asking that a density or dimensional equivalent of the R-1B zoning be applied, which would provide for 2.5 dwelling units per acre, which is agreeable with what is surrounding the property. He said they are not asking for a change of use, because the use is a principle permitted use, which is single-family residential.
Chairperson Naik stated that, after looking through all the evidence, the ZBA might decide that one (1) unit per acre is a reasonable use. He asked Mr. Jacobs what his reaction would be.
Mr. Jacobs stated that would not be reasonable or appropriate, and it does not answer the issue for which the variance was requested. He said once the hardship is established, then a reasonable return on investment will be decided.
Chairperson Naik asked Mr. Jacobs what his reaction would be if the ZBA approved two (2) units per acre.
Zoning Administrator Spencer suggested that if the Chairperson is going to continue with this line of questioning, that the ZBA adjourn the meeting, and ask the Township attorney to be present.
Member Resha agreed with Zoning Administrator Spencer. He asked whether the ZBA is discussing a hardship that Mr. Fulton is enduring, and if this is why he wants to sell the golf course.
Mr. Jacobs replied yes.
Member Resha stated that, based on all of the evidence presented, he had not seen anything that says the owner has lost anything. He suggested that Mr. Fulton supply his books to the Township Accountant to show the losses, and provide the sales agreement.
Mr. Jacobs stated Mr. Fulton had provided material evidence. He said that Mr. Fulton has testified he is losing money, and he cannot make a living doing this. He said the Mr. Fulton owes taxes and cannot make payroll or pay the IRS. He said Mr. Fulton has also provided a letter from his accountant that indicated that he cannot operate, and he is operating at a loss. He said Mr. Fulton’s attorney has come before the ZBA to represent the same claims. He said this constitutes under the law, clear testimony. He said an audit is not required by the case law. He said Mr. Fulton has brought in a parade of people who are in the industry. He added that those people have indicated that nine (9) hole, par three (3) golf courses are failing. He said there is no market or demand for the courses. He said Mr. Fulton has produced competent evidence, and the case law does not require him to submit his books.
Member Resha stated his previous question was directed towards the Chairperson and the ZBA Members. He said he knows what has been produced and it is not good enough. He said much the evidence is people’s opinions. He added no tangible evidence has been provided. He said he would like to see the books, to know in fact that the applicant is losing money and is not out for mere profit.
Member Stagg asked what specifically is the scope of the business presently. She asked if vending machines, concession stands, or something other than golf is provided.
Mr. Jacobs stated that it was his understanding that the business is primarily a golf course, and the revenues are primarily from golf. He said he does not mind showing the purchase agreement. He said Mr. Welch has indicated he would make this available if it is required.
Member Stagg asked if the business is only golf.
Mr. Jacobs replied yes, primarily. He said the owner does not have a liquor license, and there is not a banquet facility. He said there is not a multitude of different sources of revenue.
Member Stagg stated individuals can make money from selling simple food.
Mr. Jacobs stated business owners pay the vending machine operators for the service. He said the total revenue is a loss.
Member Stagg stated she was trying to find out what the exact operation is.
Mr. Jacobs stated the operation is a golfing enterprise with 85% to 95% of the revenue derived from the playing of golf and leagues.
Member Stagg asked if the golf course has a pro-shop.
Mr. Jacobs stated he is not aware of a pro-shop.
Member Stagg asked if the grounds are used during the winter.
Mr. Jacobs stated Mr. Fulton decided it was not a profitable endeavor and there was no real market for it.
Member Stagg stated there are more neighbors in the area and this may have changed. She asked what efforts Mr. Fulton has made to increase business.
Mr. Jacobs stated Mr. Fulton has advertised on cable, in newspapers, and he attempted to enlist advertising for people who came into the golf course. He said Mr. Fulton used cable television more than any other source.
Member Stagg stated she would like to talk to Mr. Fulton again (in a future meeting).
Member Brostrom stated he is not too concerned with viewing Mr. Fulton’s books, although it would be useful. He said it is not the primary role of the ZBA to guarantee the profitability of a business. He said Member Resha’s request to see the sales agreement is a different matter. He said the cost estimate of $2,100,000 for the land, which is approximately $45,064 per acre, seems very high. He said part of the issue of determining a hardship is the accuracy of the figures. He said the ZBA might want to see the sales agreement to make sure the figures were not inflated. He said before the ZBA goes any further, the sales agreement should be provided. He said he is concerned with the lack of history of marketing, and the lack of effort to market the property for another purpose allowed within the zoning district. He said any history of a marketing effort would be beneficial to the ZBA. He said the ZBA has heard suggestions from residents who are in business, and the suggestions are not extreme like the proposals suggested by Mr. Jacobs. He said the Ordinance, referring to lot area, states; “no building or structure shall be established on any lot less than ten (10) acres in area.” He asked Mr. Jacobs if the applicant is requesting a variance in the RC zoning district for one (1) house per ten (10) acres, or 2.5 dwelling units per acre.
Mr. Jacobs stated they are requesting the permitted use for single-family homes. He said the RC district does not talk about houses, it talks about buildings. He said the zoning does not address density or the amount of single-family houses.
Zoning Administrator Spencer stated that is a wrong interpretation. He said the density is assumed in the Ordinance.
Mr. Jacobs stated the density is not specific and the Ordinance is vague. He said they are asking for a dimensional variance that is equal to the surrounding area, which is 2.5 dwelling units per acre.
Member Brostrom stated it would be difficult for the ZBA to determine what is a reasonable use within this range of densities.
Mr. Jacobs stated they have tried to show the economics of this and how the density was derived. He said the report from Peter’s Building Company indicates that this is a reasonable approach by Mr. Welch. He said the realtor and the appraisal have indicated that the suggested density was viable. He said Mr. Peters has stated that he pays approximately $25,000 to $35,000 in land acquisition costs per unit for the same type of units, and Mr. Welch has indicated on his cost analysis $18,000 per unit. He said Mr. Welch will tell the ZBA the terms of the purchase agreement, and provide a copy. He said the experts have stated that this is a reasonable and appropriate value for land in the Township, which is served by Township Utilities, and could possibly be used for residential purposes.
Member Grosshans asked Mr. Jacobs if he is stating that golf courses are not making money because of the thirty-six (36) golf courses in Washtenaw County, or nine (9) hole courses are not making money.
Mr. Jacobs stated this nine (9) course (Hickory Woods) is not viable. He said if there was another nine (9) hole course in the Township that was viable, it is not part of the criteria. He said this circumstance is not unique to other properties, and the hardship is not self-created.
Member Grosshans asked if other nine (9) hole courses are making money and doing well, and Mr. Fulton’s course is not, wouldn’t that imply that this is self-created.
Mr. Jacobs replied no. He said a person could have a nine (9) hole course that has the greatest exposure and the best demographics, and that is not the case there.
Member Grosshans stated he is a golfer and he is well aware of the golfing industry. He asked if Mr. Fulton’s golf course is doing poorly because of the location, and not because of poor management, or poor marketing.
Mr. Jacobs stated the experts explained why certain golf courses fail. He said most of the golf courses doing well are eighteen (18) to thirty-six (36) hole courses with amenities. He said the experts were not paid to testify. He said Insite (Realtor) showed and explained the sales of golf courses. He said Mr. Fulton described why this course has failed as a business enterprise. He said Mr. Fulton did not make the golf course fail. He said the owner mortgaged and doubled mortgaged his home to keep the course open. He said the owner’s accountant states the owner cannot pay his payroll taxes. He said this course does not have the facilities, location, or the exposure. He said the experts who testified are owners, operators, and members of the association, and they have more experience than the ZBA. He said the experts came in unpaid, because the property is antiquated and cannot be used for the purpose.
Member Grosshans stated the previous owners of Rustic Glen Golf Course (Michigan Avenue) were having trouble making money. He added that the new owners improved the course and added a clubhouse, and the business is doing a lot better. He said he would appreciate the applicant providing numbers for the past five (5) years, so the ZBA can be accurate in determining if the applicant is turning a profit. He said the golfing industry is in bad shape and there are too many courses. He said it would save the applicant time if concrete information was provided. He said people can state that golf courses are doing poorly, but he wants to know that Mr. Fulton’s business is failing.
Mr. Jacobs stated Mr. Fulton’s accountant showed in a letter that the revenues are declining.
Member Grosshans stated a company may have declining sales but that does not mean they are broke.
Mr. Jacobs stated the letter indicates that for the last five (5) years Mr. Fulton has been losing money.
Member Grosshans stated the letter says the income is going down, but it does not say he is not turning a profit.
Mr. Jacobs stated he would ask Mr. Fulton’s account to provide a letter saying Mr. Fulton cannot afford to operate the business because he is losing money. He said he has represented six (6) courses in the previous years, and three (3) of those courses were sold because they could not be utilized profitably.
Craig Welch, Wexford Homes, stated he would like to speak about some nine (9) hole golf courses. He said Ann Arbor Golf and Outing (across from Michigan Stadium), is a private membership course in a good location. He said the course is private, the members pay to belong, and there is a long waiting list. He mentioned some people do not want to play eighteen (18) holes because of their age. He said this course relies on membership dues, not the outside public. He said Georgetown is a family club, and in addition to golf there is a pool. He said this golf course is selling a family recreational facility and the primary use is not golf. He said this course also relies on private membership dues, not the general public. He said Rusty Glen was a nine (9) hole course on Michigan Avenue, and as part of their upgrade they went to eighteen (18) holes.
Mr. Welch said the Township stopped Mr. Fulton (from being able to expand) by granting the rezoning of the properties to the north and south to residential. He said Mr. Fulton has no room to expand. He said the applicant cannot expand the business to be competitive, because the area does not allow for it. He said the experts state golf courses are making money on amenities such as clubhouses and banquet facilities, but the applicant does not have these services. He said Mr. Fulton does not have the capital base to draw upon to engage in a 1.5 million dollar expansion. He said he will send a copy of the purchase agreement to the Township. He said the purchase agreement is for 2.0 million dollars, and this does not include interest costs. He added by the time the transaction is complete the purchase will exceed 2.1 to 2.2 million.
Mr. Welch stated he has not seen Mr. Fulton’s books. He said Mr. Fulton came to him and expressed his dire financial situation, and he (Mr. Welch) advanced Mr. Fulton $75,000 so he could pay his bills. He said Mr. Fulton has borrowed everything he can from the bank, and he is now borrowing from them (Mr. Welch). He said Mr. Fulton is in a difficult situation, and he cannot pay his payroll taxes. He said if a course can expand, it may change the business, but Mr. Fulton does not have this flexibility.
Member Brostrom asked how many acres this site is.
Zoning Administrator Spencer stated 46.7.
Member Brostrom stated he was looking at the applicant’s estimates and it indicates for 116 units it would provide a profit of 8.07%. He added this seems reasonable. He said 116 units would take up every square yard of the site. He said there would be no room for the green space or the woods.
Zoning Administrator Spencer stated the area plan the applicant submitted shows some open space. He said it is not a relief of lot size or setbacks in this case. He said the area plan was presented as a condominium, which is one lot, not many lots. He said the questions being asked by the Members are beyond the findings of hardship. He said if the Members did find a hardship, this discussion should be focused on determining the level of relief required. He said the Members should ask Mr. Jacobs if he is seeking the density of an R-1B district, as stated in the Ordinance.
Chairperson Naik asked Mr. Jacobs if he applied for a zoning change to the Planning Commission.
Mr. Jacobs replied no. He said he went to the Planning Commission regarding a Planned Unit Development (PUD) request. He said the Planning Commission did not approve the PUD because it did not meet the zoning in the Comprehensive Plan. He said he is not asking the ZBA to approve a given site plan.
Chairperson Naik stated it appears that the neighbors already had reservations regarding the site. He asked if the Planning Commission denied the request.
Mr. Jacobs stated they (the Planning Commission) denied consideration of the PUD because it did not meet the Comprehensive Plan zoning.
Chairperson Naik asked if the plan proposed is the same or different.
Mr. Jacobs stated they have given the conceptual plan as an illustration for the density they would like to receive.
Zoning Administrator Spencer stated this is not what the application states. He said the application asks for a use consistent with the R-1B district per the enclosed site plan (provided) by Midwestern Consulting.
Mr. Jacobs stated that nowhere in the application is there a request (for the ZBA) to approve the site plan.
Zoning Administrator Spencer read from the application, “The applicant is requesting a use variance from the permitted uses in the RC district, in order to permit development of the subject site for single-family residential use consistent with the density permitted in the R-1B district, 2.5 dwelling units per acre. In addition the applicant is requesting approval of the attached open space site plan.”
Mr. Jacobs stated the open space site plan is not being requested. He said they are not asking the ZBA to approve the site plan. He said they are asking for a density variance, and it is a dimensional variance because the use is there. He again stated they are not asking for the ZBA to do that (approve the site plan).
Zoning Administrator Spencer stated it is in the application, and staff’s reports reflected the fact that the applicant was requesting approval of the site plan.
Mr. Jacobs stated the report did not reflect this. He said the report stated the applicant is asking for a dimensional plan.
Zoning Administrator Spencer questioned if the site plan is not for consideration.
Mr. Jacobs replied yes. He said the site plan is only illustrative of the units that may be placed there.
Member Resha asked if the rezoning request went before the Board of Trustees.
Mr. Jacobs stated they did not go before the Board for a request of rezoning. He said they went before the Board for approval of the PUD. He said that PUD was denied for the same reason (the Planning Commission denied it).
Chairperson Naik asked if the ZBA could ignore the entire document because it says rezoning and PUD.
Mr. Jacobs stated there was never a request to rezone.
Member Resha stated the Board minutes say, “Therefore be it resolved that the Pittsfield Township Board of Trustees denies petition RZ #03-04 Fairwood Green to rezone parcel number L12-24-100-008, from Recreational Conservation to Planned Unit Development.” He further read, consideration of resolution to deny the petition to amend the Pittsfield Charter Township Zoning Ordinance on RZ #03-04 Fairwood Green [first reading]. The Board Members resumed discussion on the motion made earlier in the meeting, which was as follows, “Motion by Clerk Lirones, supported by Trustee Burhop, to adopt the resolution for denial of a petition to amend Pittsfield Charter Township Ordinance on RZ #03-04 Fairwood Green [first reading].”
Mr. Jacobs stated they asked for a rezoning to the PUD category.
Member Resha asked if Mr. Jacobs asked for a rezoning in any other way.
Mr. Jacobs replied no. He said they have not asked for a change in the category. He said there was never a petition to rezone the property to R-1B.
Member Resha asked if Mr. Jacobs just wants the variance.
Mr. Jacobs stated that when Janssen vs. Holland Twp. came about, Zoning Boards of Appeals were allowed to grant dimensional and use variances. He said the standards are different: one is legislative and one is administrative. He said they are not asking for the property to be rezoned.
Chairperson Naik stated the end result is the same.
Zoning Administrator Spencer stated there are differences in the application. He said the application did specifically address a site plan as if it was a PUD. He said you could look at Birchler-Royall’s rezoning plan and analysis and it discusses open space that the site plan provides. He said it was geared in that direction.
Mr. Jacobs stated it was their intention, if the variance was approved, they would take the site plan/dimension to the Planning Commission. He said the site plan was illustrative of what could be done with the site.
Mr. Welch stated they put together a plan that would develop the site consistent with the neighboring properties. He said those lots are 70 feet by 140 feet. He said the site plan had some open space in the middle of the site. He said that plan had 105 sites. He said the plan was brought into the Township so they could have a discussion and get a sense of what the Township was looking for, before they submitted their application. He said the Township wanted the woods and open space preserved. He said they have tried to come up with a plan that creates open space so fewer houses back up to other homes. He added that they incorporated a park for the neighboring properties. He said with conventional lots that are 70 feet by 140 feet there would be 105 lots. He said with the detached condominiums they held the number of lots to 116 because it was consistent with the 2.5 dwelling units per acre. He added that they created as much open space as possible.
Zoning Administrator Spencer stated that a comment was made that the applicant was trying to maximize the number of lots possible. He said the applicant stated fewer lots would work better and fit into the community. He said the site plan issues can be addressed separately. He asked if he was wrong in saying that density was inferred by a minimum lot size in the RC district. He said he would like to know if Mr. Jacobs thinks any of the zoning districts address density. He said the word does not crop up in the Zoning Ordinance. He said the application for density might be a moot point because the density is not addressed. He said the ZBA might want the Township attorney to comment on this matter before going any further. He said the Comprehensive Plan addresses density, but it does not address density in Public Facilities and Public and Private Recreation/Open Space Areas.
Member Stagg asked if density is not addressed in the Ordinance, but the Comprehensive Plan does address density, but not in the RC zoning district.
Zoning Administrator Spencer stated the Ordinance does not directly address density. He said the zoning districts allow uses that are not contemplated in the plan for the long-term use of a property. He said for the agricultural district, residential use is not the primary permitted use, although most of the Township’s agricultural land is used for residential purposes. He said the Township attorney can address this point.
Zoning Administrator Spencer stated the ZBA may want more information to determine if there is a true hardship on the property. He said the same argument comes from people in the industrial zoning district. He said those people feel the land is not reasonable at this time because of the downturn in the market for industrial property. He said the ZBA has asked if the property was marketed as recreational property, and if there is a market for that use. He said the ZBA Members may want to compare other nine (9) hole golf courses that are operating successfully. He said management questions can be asked to Mr. Fulton directly. He said the neighbors have stated there has been no investment or improvements to the golf course.
Zoning Administrator Spencer stated that if the applicant is looking for 2.5 dwelling units per acre, this could be addressed after determining if there is a hardship. He said that density may not be the minimum density needed for relief. He said if the ZBA were to determine relief, they would need to look at the costs of developing the property. He said before this is done a hardship needs to be determined. He said one witness that owned a golf course stated business was down but they were still making money. He said there could be accessory businesses like vending machines. He added that typically the vending machine company pays the business to have their machine there.
Chairperson Naik asked what modification to the language in the application the ZBA is making.
Zoning Administrator Spencer stated the true variance the applicant is seeking is for density.
Mr. Jacobs stated they are requesting a dimensional variance that is consistent with the 2.5 dwelling units per acre. He said this translates into the requirements of the R-1B district.
Zoning Administrator Spencer stated it could translate into an area plan for condominiums.
Member Resha asked what the RC zoning district says about residential uses. He asked if there is a certain amount of land.
Zoning Administrator Spencer stated ten (10) acres.
Member Resha asked if this is for any structure or building.
Zoning Administrator Spencer replied yes. He said a residential structure is permitted, and they would need that minimum lot area. He said Section 10.04-A, Lot Area, states, “No building or structure shall be established on any lot less than ten (10) acres in area.”
Member Resha asked for clarification on the second portion of the section which states, “No lot without a building or structure shall be established less than one (1) acre.”
Zoning Administrator Spencer stated some of the permitted uses are game preserves. He said you could have un-buildable lots of less then ten (10) acres.
Member Resha asked if there is any deviation of this.
Member Grosshans asked if the 2.5 dwelling units is for all forty-seven (47) acres.
Zoning Administrator Spencer stated it depends on how the variance is granted. He said if the variance was granted to provide lot dimensional relief, and 10,000 square foot lots that were 70 feet wide were required, and including the setbacks, there may not be room for the 2.5 dwelling units per acre. He said the lot area and density are not exactly the same thing.
Member Resha asked if the 2.5 density includes the infrastructure.
Zoning Administrator Spencer replied yes. He said it would be the gross area, minus the existing right-of-ways, and 90% of the wetlands and surface water. He said if this was a straight R-1B zoning district, everything would need to fit onto the 10,000 square foot lots. He said all the roads and detention ponds would be separate. He said if you divided the 10,000 square foot lots up without infrastructure, you would get four lots per acre.
Chairperson Naik stated the ZBA needs to find if there is a hardship. He said the Members should go through the findings and discuss them.
Zoning Administrator Spencer stated the ZBA can ask for additional information if it is needed.
Member Brostrom stated he would like additional information. He said he would like to evaluate the letter from Mr. Welch, and the cost estimates from Zoning Administrator Spencer. He said he needs to review the mind-boggling variance that is being requested from one structure per ten acres, to 2.5 units per acre. He said the zoning cannot be changed so it will still be in the RC district. He said he needs to look at the issue of hardship more carefully.
Mr. Steve Cortese, 4701 Sycamore, stated he came in late and he knows the public hearing has been closed, although he does have additional information that he would like to submit.
Chairperson Naik directed Mr. Cortese to submit the information to Zoning Administrator Spencer.
Chairperson Naik asked if the ZBA is looking for better documentation of what has happened.
Member Brostrom replied yes. He said the sales agreement has been offered (by Mr. Welch).
Mr. Jacobs stated that is correct. He said he will also receive additional information from the applicant’s accountant.
Member Stagg stated she would like to talk to Mr. Fulton again.
Member Resha stated he feels the ZBA has enough information.
Chairperson Naik asked if the variance requested is for 2.5 or ten (10) acre density. He said he would like to know what the ZBA’s authority is if they do find a hardship and what the basis is for it. He said the site plan presented may not be what the ZBA goes by.
Zoning Administrator Spencer stated the ZBA may not want to consider the site plan, although there is information in the application that needs to be reviewed.
Chairperson Naik asked Mr. Jacobs if he can clean up the application.
Mr. Jacobs stated the ZBA should look through the application. He said the ZBA should also review the Janssen case, which sets forth the criteria for this case. He said the application gives a history of events, and it contains exhibits from the appraiser and the accountant. He said the traffic study by Birchler-Royall is important. He said there is a study from Birchler-Royall on the planning and the use of the property. He said he is providing information that he feels is important to help the ZBA. He said there is evidence that the hardship has occurred, it was not self-created, and it will not change the basic character of the neighborhood. He said Zoning Administrator Spencer and Planner Schmult have stated that the proposed use will not be a burden because of the existing utilities and infrastructure. He said he will provide more information.
Chairperson Naik asked if Mr. Jacobs has any response to the neighbors.
Mr. Jacobs replied yes. He said he understands why the residents want the site to stay a golf course. He said this is a private and commercial piece of property and changes do occur. He said the realtors may have told the residents that the use would not change, although the law has provisions for variances where there are hardships. He said a beautiful subdivision will not be a detriment (to the neighboring properties). He said the homes will be of good quality. He said there was an unfortunate expectation that the golf course would always remain a privately owned golf course.
Member Grosshans stated that Mr. Fulton, the applicant, would like to sell the property, although he has not had the land for sale as RC to anyone else. He said no one knew this property was for sale until someone had made an offer. He said there may be a potential buyer who would purchase this property as RC. He asked if it can be a hardship if the first buyer wants to develop 2.5 dwelling units, although someone may want to keep the property as RC zoning.
Mr. Jacobs stated the use of the property is permitted [for residential] under the current zoning. He said a commercial use such as a softball city, the Ordinance does not allow.
Member Grosshans asked if Mr. Fulton had the property for sale for other buyers under RC.
Mr. Jacobs stated there is a case that has recently come up called the Braun case. He said this is a case that Mr. Laidlaw is very familiar with. He said he does not have to show every single use that this property could be sold for. He said he has to address that they are not reasonable or appropriate. He said there has been testimony that the other [permitted] uses are not reasonable.
Member Grosshans stated that he has to make a judgment call. He added experts have given testimony with valid points. He said if you were the owner and you could not make money, and you wanted to sell the land, and you cannot sell the land as RC, then it makes sense to do something else.
Mr. Jacobs stated the law requires him only to show that the present use is not a reasonable use of the property.
Zoning Administrator Spencer stated legal questions should be directed to the Township attorney. He said it is Mr. Jacobs opinion that he has presented enough information to the ZBA. He said the Township attorney could elaborate on the Braun case. He said it may be beneficial to reopen the public hearing so the citizens can speak on this matter.
Motion by Member Resha, supported by Member Brostrom, to reopen the public hearing.
MOTION CARRIED
Steve Cortese, 4701 Sycamore, stated he has researched hardship in regards to zoning. He read, “Hardship exists where the application of the regulation to property greatly decreases or practically destroys its value for any permitted use, so as to deprive the owner of the land of all beneficial use of that land.” (Wells & Highway 21). He also read, “Hardship requires showing that land cannot yield reasonable return if used only for the purpose allowed in that zone.” (Concerned Residents vs. ZBA of Ross Twp). He said they are not talking about a golf course; they are talking about other uses that could be in that zone. He said they have not heard whether Mr. Fulton has tried to improve the golf course. He said all he has heard is that Mr. Fulton is not making money as a nine (9) hole golf course. He read, “Hardship requires showing that the land is virtually useless as it is presently zoned.” (State vs. Winnebago County). He read, “Rezonings are justifiable under one of the following circumstances; when the requested rezoning is consistent with long range land use plans adopted by the appropriate governing body.” He read, “The often repeated, although ill defined, limitation upon the exercise of the zoning power, requires that zoning ordinances be enacted for the health, safety, morals or general welfare of the community.” He said community is not just one resident.
Jeff Vicars, 4695 Sycamore, stated the ZBA is trying to give them (the applicant) a fair and open opportunity to present their case. He mentioned he has background in real estate in Superior and Canton townships. He said it was not unusual for someone to receive consideration for a loan of $75,000 as part of the option money that the seller is offering to tie up the property for a period of time. He added that it is not necessarily a noble act by the purchaser. He asked the ZBA not to give this (loan) a lot of weight. He said it was mentioned that Mr. Fulton had delinquent taxes, specified as payroll taxes, not personal income taxes, he withheld for his benefit. He said Mr. Fulton should be a conduit for these funds and should have passed this money onto the government, which in essence is an illegal act. He said the ZBA does not have to grant relief for something that is illegal.
Sandra Hogue, 4709 Sycamore, stated she strongly opposes this request. She said a member of her congregation in Ann Arbor announced that his son was a special needs child, and he and a group of other children were finally able to find a nine (9) hole golf course for the children. She added she is not sure which golf course it was. She said one golf outing meant so much to the children that they want to do it every summer. She requested that this property stay recreational.
Jim Pryce, 5870 Cottonwood Drive, President of Ashford Village Homeowners Association, stated his son has Asperger Syndrome. He said Hickory Woods is a nice place to take his son. He mentioned his son does not have the hand eye coordination for baseball or softball. He said golf is a sport his son can participate in. He added his son loves to drive the golf cart. He said there is another nine (9) hole golf course on Willis Road. He said he has played Hickory Woods as long as he can remember. He said the course is the same. He said hole number 4 needs a platform because it is swamp land. He asked the ZBA to deny the request and keep the property as recreational for the children in the neighborhoods.
Motion by Member Resha, supported by Member Brostrom, to close the public hearing.
MOTION CARRIED
Chairperson Naik stated the ZBA has requested documents, and those documents are needed before proceeding. He said the information needed is: the financial information from Mr. Fulton to indicate his economic situation for the last five (5) years, the sales agreement, and Zoning Administrator Spencer’s report regarding the numbers submitted by Wexford Homes. He asked Mr. Jacobs what information in the application that the ZBA should ignore.
Mr. Jacobs stated the material that relates to the site plan. He said all the other information is informative to the ZBA.
Chairperson Naik stated he would like to go through the application and write a note that the following sections are not applicable.
Zoning Administrator Spencer stated in the Table of Contents there is a section on Rezoning to PUD. He asked if this is applicable.
Mr. Jacobs stated he would almost take off the table of contents.
Zoning Administrator Spencer asked Mr. Jacobs if he would like to resubmit the application.
Mr. Jacobs replied no.
Chairperson Naik asked what is not applicable.
Member Brostrom requested that Mr. Fulton attend the next meeting. He said the property was not marketed, although a buyer did come along and offer 2 million. He said Mr. Fulton stated his principal mortgage outstanding was $400,000. He said the price per acre is $46,000. He said Zoning Administrator Spencer has given estimates of similar average purchases and the average cost was $20,000. He said either Mr. Fulton drove a tough deal, or he (Member Brostrom) was confused by the high price per acre.
Zoning Administrator Spencer stated the Township Assessor may be able to comment on this.
Mr. Rushton stated typically the sales price is based on density. He said the typical density for sales is probably less than 2.5 units per acre. He said the Township is assessing this type of property for approximately $600,000 to $650,000, which is 1/3 of the asking price.
Zoning Administrator Spencer asked what this type of property is selling for in the Township. He said other members in the Assessing Department have stated $25,000-$30,000 per acre.
Mr. Rushton stated some properties are as low as $15,000 (per acre). He said this is for lower density.
Mr. Welch stated this was addressed in the letter that Mr. Haussler has confirmed. He said Mr. Haussler represents the largest purchaser of land in the County. He asked Mr. Haussler what he is paying on a per unit basis for land that has water and sewer, paved roads, and in Pittsfield Township, and his response was $25,000 to $35,000 per unit. He said with 2.5 units to the acre, at $30,000, it would put the value at $75,000 per acre. He said this is a well-negotiated deal. He said the price is consistent with what is happening elsewhere. He said [Referring to the City of Ann Arbor’s Greenway purchase program] in Ann Arbor Township they were offering $12,000 to $15,000 per acre, and the farmers were looking for $40,000 to $50,000 per acre. He said he could bring in appraisal experts to show that $45,000 for land like this is a reasonable price from both sides.
Zoning Administrator Spencer stated the ZBA can ask the Township to spend money for an appraisal. He said an appraisal would be important to determine a reasonable return.
Zoning Administrator Spencer stated the Township’s attorney can give clarification on the property not being marketed for recreational use, and the Braun case.
Mr. Welch stated the Township Board authorized $3,000 for an appraisal to be done on this site last year.
Chairperson Naik stated the ZBA is requesting the following items: financial data from Mr. Fulton from the past five (5) years, the sales agreement, Mr. Fulton to be present at the next meeting, Mr. Jacobs to clarify the use variance application, Zoning Administrator Spencer’s report on the letter received from Wexford Homes, the Township’s attorney to be present at the next meeting, and clarification on the Braun case.
Mr. Jacobs requested a copy of the information that is being requested so he can review it.
Chairperson Naik stated this can be done.
The Members agreed to reschedule this meeting until September 13, 2004 or
September 27, 2004.
The Members, staff, Mr. Jacobs and Mr. Welch agreed that August 30, 2004 is the deadline for information to be exchanged, and September 6, 2004 is the deadline that no other information can be submitted.
Motion by Member Resha, supported by Member Grosshans, to postpone
ZBA 04-03 Fairwood Green, until September 13, 2004 or September 27, 2004.
MOTION CARRIED
6.0 New Business
None.
7.0 Zoning Administrator’s Report
None.
8.0 Member's Report
None.
9.0 Secretary’s Report
None.
10.0 Chairperson’s Report
None.
11.0 Approval of Prior Minutes
11.1 Minutes of May 24, 2004
Motion by Member Brostrom, supported by Member Resha, to approve the minutes as presented.
MOTION CARRIED
12.0 Adjournment
Motion by Member Resha, supported by Member Brostrom, to adjourn the meeting.
MOTION CARRIED
Chairperson Naik adjourned the meeting at 9:16 p.m.
____________________________________________________________________
s/Alayna Stagg, Secretary October 11, 2004
