Pittsfield Charter Twp, Michigan

REGULAR MEETING March 22, 2004 6:30 P.M. _____________________________________________________________________________

PITTSFIELD TOWNSHIP ZONING BOARD OF APPEALS MINUTES ______________________________________________________________________________ Members Present: Robert Grosshans, Edward Resha, Ishwar Naik, Alayna Stagg and Kenneth Brostrom.

Members Absent: None.

Others Present: Robert Jacobs, Jon Caterino, Scott Jacobson, James Blackburn, William Anderson, R. Arroyo, Assistant Planner Jennifer Black, 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 to order at 6:35 p.m. A quorum was present.

2.0 Approval of Agenda

Motion by Member Stagg, 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 Old Business

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

Chairperson Naik stated this was a continuation of the February 25, 2004 meeting that could not be finished due to the lengthy comments. He briefly reviewed the last meeting including asking the applicant if there was an objection to Mr. Naik remaining on this application. The applicant had no objection. He said they have heard from the applicant, attorneys and consultants. He said the packet of information that was submitted was reviewed and it was decided, with the consent of the applicant, to continue the meeting. He asked the applicant if there was any additional information, and reminded them to keep their comments as brief as possible.

Robert Jacobs, for Arbor Oaks, stated they do have additional materials that were submitted by the deadline so all parties would have time to review them. He also asked for a brief opportunity to respond to the Township comments, later in the meeting.

Chairperson Naik asked the Members if this was acceptable to them.

The Members agreed.

Zoning Administrator Spencer said the S. R. Jacobson Development Company submitted an application for a use variance on November 21, 2002, “to allow development of a 126 unit single family development according to R-1B [Single Family Suburban Residential] Zoning standards” and “inclusion in the Township’s water and sewer service area per the intent of the R-1B District regulations.” He said the Township staff and the Planning Commission have not reviewed, nor commented on a proposed site plan for the subject property. He said without such a review, it would be premature to speculate that 126 units could be placed on this site even if the R-1B District rules were applied.

Zoning Administrator Spencer said he would briefly review the variance procedures from his report. He said the Township Zoning Act empowers zoning appeal boards to hear appeals from administrative decisions and to grant variances. He said where there are practical difficulties or unnecessary hardships in the way of carrying out the strict letter of the zoning ordinance, the Board of Appeals in passing upon appeals may vary or modify any of its rules or provisions so that the spirit of the ordinance is observed, public safety secured, and substantial justice done. He said the only question the Board needs to consider tonight is does the R-1A Zoning District, its uses, yard requirements, and the density allowed, permit a reasonable economic use of the property? If not, what uses, yard requirements, and/or density relief would provide the developer a reasonable economic return on the property.

Zoning Administrator Spencer said the applicant contends that one-acre lot zoning prohibits the owner “from making any reasonable use of or securing any reasonable return on its investment in the property,” if they have to abide by the requirements of the R-1A District. He said staff believes that the property as zoned permits a reasonable use of the property, and it does not impose any substantial burdens on the property based on the following facts: The applicant recorded the purchase of the subject property in July 2001 for $390,000 (approximately $6,500 per acre). Vacant 0.7 to 1.2 acre parcels on improved roads and without municipal sewer and water have sold for $50,000 to $125,000 in Pittsfield Township between the years 1998 and 2004 (see table 1 Appendix B). The Township had not received a development-cost estimate from the developer at the time the Zoning Administrator's review was written; they did supply one on March 15, 2004 with a cost of about $155,000 per lot including a 25% mark up. They stated the cost was too high to permit a reasonable use of the property.

Zoning Administrator Spencer asked the Members to open the cost estimates from Mr. Anderson of Atwell-Hicks, and the cost estimate from Ayres, Lewis, Norris and May [ALNM] . He said there were some things brought up that were not included in the Ayres Lewis cost estimates. He said cost estimates are just that, cost estimates, and are based on people's knowledge of the business and the estimated cost of contracting out services. He said these can vary substantially and depend on how well they contract for these things, how many other projects they are doing, and how hungry the contractor is. He said there is much variability in cost estimates.

Zoning Administrator Spencer began with the ALNM cost estimate of $866,500, and added the purchase price of the land, including interest at 6% for 18 months ($425,000), and street trees at $300 each ($3,600), total of which only 12 would be required of the developer. He said the rest of the street trees would be required of the individual homebuilders. He said he used the estimates provided by Atwell-Hicks for these two items. He said add to the ALNM estimate for an entrance structure and landscaping, $10,000. He said a pathway would be required along Platt Road with an estimate of $10,000. Adding these additional costs, the ALNM cost-estimate total would be $1,315,100 for 35 lots, and the cost per lot would be $37,600. Adding a 15% markup, the lot cost would be $43,200 and with a 25% mark up, the total would be $47,000 per lot. He said this is the cost including profit. Mark up is profit. He also noted the adjusted ALNM estimate was based on a 35-lot subdivision without water and sewer. He said the required improvements include a 24-foot wide asphalt road with 4-foot shoulders. He said the [Washtenaw County] Road Commission allows this type of road for half-acre lots and larger. He said the cost also included grading, detention facilities, storm culverts and stand pipes. He said a storm sewer system would not be required; it would be handled by the use of swales. He said he had already mentioned the landscaped trees, the entrance sign and the pathways.

He said there were the same criteria used as the basis of the adjusted Atwell-Hicks cost estimates. He said the following items should be subtracted from the Atwell-Hicks estimates: $480,000 for the sanitary sewer, $432,000 for water, 90% of the cost of the storm sewer system (which is $630,000), the adjusted cost of road improvements ($313,000) because no curb and gutter would be required and the pavement would be considerably less (24 feet versus 31 feet), and the adjusted street-tree cost estimate ($29,400 for 98 fewer street trees). He said he adjusted the Atwell-Hicks Township review cost based on the Township fee schedule. The fee schedule required $9,200 in planning reviews; and therefore $35,200 was subtracted. The Township inspection cost was reduced by $19,590; and since there will not be any YCUA water hook-up, sewer, and cap fees, this was reduced by $90,000. Zoning Administrator Spencer said a development fee was included in the Atwell-Hicks estimate, which he felt was part of the profit; thus the estimate is reduced by another $105,000. A sales office would not be needed, since these lots will be sold with the homes (subtract another $20,000). Marketing would not be needed because these lots would be sold with the homes, so he subtracted another $10,000. He also said the sale commissions would not be needed since the lots would be sold with the houses; so he reduced the cost by an additional $168,000.

Zoning Administrator Spencer stated this brings the adjusted Atwell-Hicks estimate costs to $2,001,300, and divided by 35 lots this equals $57,200 per lot. He said with a 15% mark up it becomes $65,800 and with a 25% mark up it becomes $71,500. He stated this was a conservative estimate because he did not reduce interest rates, nor the high legal fees that were included with the Atwell-Hicks estimate. He said he felt the engineering and planning costs were too high, but he left them in the cost estimate.

Zoning Administrator Spencer said estimates are estimates and reasonable people disagree on things. He said he averaged the cost between the Ayres, Lewis/Township adjusted estimate and the Atwell-Hicks adjusted estimate, and it equaled $54,500 per lot with a 15% mark up, and $59,250 with a 25% mark up.

He said ¾ acre lots without water and sewer were estimated per lot to sell in the proposed Legacy Heights for about $115,000, based on information provided in a letter signed by Mr. Jim Haeussler of Peters Building. Mr. Haeussler stated that there is a premium on lots in the Saline school district of 10% to 20%. Zoning Administrator Spencer said if 10% were subtracted from the price, it would bring it down to $103,500 per lot; and if 20% were subtracted from the lot price it would bring the selling price to $92,000 per lot, which is still above the average estimated cost he presented.

Zoning Administrator Spencer said he also worked up another scenario based on a subdivision with sewer and water, and by using the open space provision of Section 56.22 of the Zoning Ordinance to reduce the lot area to ½-acre lots. He said with this scenario he reduced the cost of the infrastructure by 40%, he reduced the engineering inspection cost by 30%, and he included a 24-foot wide road with no curb or gutters or interior sidewalks.

Zoning Administrator Spencer said he started with the Atwell-Hicks estimate of $4,333,500; he reduced the pre-development costs by 30% ($43,800), site grading by 40% ($212,000), sanitary sewer by 40% ($192,000), and water by 40% ($172,800). He stated for the storm sewer he was using the same number for reduction again of $630,000, because there would only be a minor amount of storm sewer to be done since they would be using swales, ditches and culverts versus piping and edge drains. He said he reduced the road cost by $313,000 and reduced street trees by 104 trees for a savings of $31,200. He said Township review fees were reduced by $35,200 and the Township inspection fees by 40% for a reduction of $11,800. He noted the Township review fees were based on the Township fee schedule. He said the fees for construction inspection of the roads were reduced by 30%, which would save $7,500 and construction staking was reduced by 40% which would save $13,500. He said as built plans were reduced by 30% to save $6,000.

Zoning Administrator Spencer said that, just as in the first scenario, he reduced by 100% the overhead of $105,000, the sales office of $20,000, the marketing by $10,000 and the sales commission by $168,000. He said that after the reductions the total cost is $2,362,700 and said that for 35 lots the cost would total $67,500 per lot. He added that with a 15% mark up the cost would be $77,500 and with a 25% markup it would be $84,400. He said he did not reduce the interest rates, legal fees, nor the high planning and engineering fees.

Zoning Administrator Spencer said it is reasonable to assume that if the ¼-acre lots selling for $67,000 in the 45 lot Willow Pond subdivision (with water and sewer), and ¾ acre lots selling for $115,000 in the 43 lot Legacy Heights site condominium (without water and sewer), then ½ acre lots with water and sewer should sell for $91,000 in those areas. If 10% is subtracted for being in the Milan schools, the sales price could $81,900, very close to the inflated cost of $84,400 previously mentioned. If the same homes that were built in Willow Pond and sold with their lots for $234,000 to $270,000 were placed on these [Arbor Oaks] lots, they could sell for an additional $17,400 and be affordable at $251,400 to $278,400. This is including the 25% mark-up per lot and the same profit that they made at Willow Pond.

Zoning Administrator Spencer said he wanted to emphasize that this was far from the Atwell-Hicks estimate of the $600,000-$700,000 price for the homes that would be sold on these lots. He said the developer might like to sell million dollar homes but to say there is no market for affordable homes was not reasonable. He said the letter from the Peters Building Company indicates they believe there is a market for these homes.

Zoning Administrator Spencer said he also did another cost analysis based on the provisions of the Land Division Act and not doing a subdivision or site condominiums, and without water and sewer. He said he felt 11 lots could be obtained. He said he worked up a scenario of 10 lots at 2 acres with 4 acres set aside for a private road and a related detention pond, and a remaining parcel of 36 acres. He briefly explained how he arrived at the number of splits permitted on a 60-acre parcel using the Land Division Act.

Chairperson Naik asked Mr. Spencer if the Members had the information he was presenting.

Zoning Administrator Spencer apologized, stating this scenario was outside the information provided.

1. Jacobs stated he thought he was going to have all the information by March 15th [2004] .

Zoning Administrator Spencer replied his report was turned in by March 15th [2004] and that he was now providing a response to their submittal. He also said he did not provide any additional information to the ZBA Members after March 15th.

Chairperson Naik asked about the 10 lots with 2 acres, and indicated he was trying to understand the information.

1. Jacobs said they would like to have the opportunity to review this new material with sufficient time to respond.

Chairperson Naik assured Mr. Jacobs he would have time to respond.

1. Jacobs stated he had not heard any of this information previously.

Chairperson Naik replied as many meetings as necessary would be held and reasonable time would be allowed.

Zoning Administrator Spencer restated previous information concerning splitting the 60 acres into 11 lots.

1. Naik and Mr. Spencer discussed the mechanism for parcel splits.

Zoning Administrator Spencer reviewed his cost estimate for developing 11 lots using parcel splits. He listed the following costs: $100,000 for the class "A" private road and related drainage facilities, $390,000 for the cost of the land, $35,000 for the cost to carry the loan on the land at 6% interest for 18 months, $12,000 for the cost to finance the construction for 2 years at 6% interest, and $86, 400 for the marketing cost at 7%. He stated the total development cost would be $623,400.

Zoning Administrator Spencer said he also estimated sale revenues for the 2-acre lots at $100,000 each, and the 36-acre lot at $6,500 per acre for a total of $234,000. He said this would total $1,230,000 and provide a profit of $610,600, or a return on investment of 97.9%. He said if the 36 acre lot was given away there would still be 60% return on investment.

Chairperson Naik asked what was included in the cost for the 11 lot development.

Zoning Administrator Spencer stated he estimated the cost at $100,000 for the road and accessory drainage facilities. He stated this was for a metes and bounds division. He said there were many of them throughout the Township, including Shadow Court, Thompson Road, and Crane Court.

Zoning Administrator Spencer stated that the applicant had supplied letters from builders stating there is no market for one-acre lots, but Staff disagrees with that statement. He noted successful one-acre lot developments including Hunter's Pond, Brookview Highlands, Hunter's Crest, and Sand Creek. He also said Phil Conlin is presenting a final site plan for a 115-unit one-acre subdivision, and that Peters Building Co. had received approval this year for a PUD for site condominiums with an average density of less the one unit per acre.

Zoning Administrator Spencer said the Board can decide if being located on the border of denser developments is a burden and would need relief from the requirements of the ordinance. He said the applicant’s property is bordered by single-family suburban residential zoning districts R-1B, and PUD districts, with single family houses on the north and west borders. He said it borders agricultural property on the east, with single-family houses on 2 ½-acre lots. He said to the south are vacant parcels in the agricultural district. He said part of the south also borders the R-1A district and is vacant. He said further to the south and southwest are many single family homes located in the agricultural district and the R-1A district. He said in the staff’s opinion, granting a reduction in the lot-area requirements is not consistent with the large lots to the south and southeast.

Zoning Administrator Spencer said one-acre lots as zoned promote a public interest by providing a transition between the 10,000 square foot lots to the north and the west, and the 2 ½ acre lots to the south and the east.

Zoning Administrator Spencer said use of the Township’s water and sewer is not a zoning issue. He said the planning staff and the Planning Commission have no authority to grant permits for connection to the Township’s water and sewer; therefore the ZBA has no authority to tell the Township a development has to be connected to the Township’s sewer system.

Zoning Administrator Spencer said the applicant has not asked the Township Board to provide sewer service to this property. He said the hardship claim based on soil conditions presented by Mr. Jacobs is premature. He said the applicant has stated, “Septic fields cannot be reasonably utilized for use of the property for development due to the physical characteristics of the property.” He said the applicant had not provided proof that the soils on the site would not allow septic systems, nor had they not provided proof from the County Environmental Health Department. He said Richard Fleece’s (Washtenaw County Department of Environment and Health Regulation) letter, dated February 10, 2004, stated, “Before a final determination could be made, an on-site soil evaluation by a representative of this department will be necessary.” He added this was not done.

Zoning Administrator Spencer said Robert S. Czachorski and Roger Memmer of ALNM stated in their letter, dated March 15, 2004, that “the use of deep cut excavation or on-site wastewater disposal systems may be feasible” and that “the investigation performed is largely inconclusive due to the inadequate number of soil borings evaluated and a lack of a reasonable estimate of the high groundwater level.” He said Majed Ghussani, a public health engineer at the Washtenaw County Environmental Health Department, stated this site will need as many as 60 test holes. He also said that ALNM stated that boring numbers 2, 6, and 7 of McDowell’s results suggest they could be conducive to on-site disposal systems. He said all the borings terminated at less then the maximum depth of 20 feet permitted by the Health Department. He also said that shared drain fields might be permitted, which would permit smaller lots with shared drain fields in the common areas. He added that Robert S. Czachorski from ALNM was present to answer the Members’ questions.

There were no questions from the Members.

Zoning Administrator Spencer stated the applicant has contended that the Township must provide sewer connection because there is a sewer line in Platt Road adjacent to the property. He then stated that Richard Fleece from the Washtenaw County Health Department, stated, “Availability of sanitary sewers is determined by the municipality that has ownership and/or jurisdiction over the sewage system”, and that structures “shall be connected to an available public sanitary sewer if required by the city, village or township.” Zoning Administrator Spencer said based on this information it is clear that the Township is permitted to determine if sewer is available.

Zoning Administrator Spencer said Atwell-Hicks stated there were five criteria used to establish the revision of the sewer service area. He said they based this on a report dated July 1, 1998 by John Enos, the Director of Municipal Services at that time. He said the letter does not state these are the only reasons. He said the big emphasis of the letter was that the Township could reduce the projected service needs by: removing from the service area properties that were not committed to development, reducing the projected densities within the service area, and reducing the use assumption factors (the number of persons per household). He said the areas recommended for removal were in the center of the Township and along the southern border of the service area. He said it would be hard to service the central areas because they have no infrastructure. He said the southern area reductions represented a consolidation of the boundary based on the southern edge of areas committed for development.

Zoning Administrator Spencer said in May of 2001 ALNM produced a Pittsfield Township Wastewater Flow Study. He said this report illustrated the predicted flow to YCUA for a build-out area that would be up to 6.85 million gallons per day (MGD) based on three-person households. He added three people per household is an industry standard for calculating needed capacity. He said that if the build-out dropped to 2.4 persons, the projected use would drop to 5.8 MGD. He said the 2000 census shows between 2.4 and 2.5 people per household. He said in November of 2000 the Township signed a contract with YCUA for 4.5 MGD. In September 2001, the Township Board passed a motion to have the engineer use the revised service area map for engineering purposes (it closely matches figure 4 in the 2000 wastewater flow study) to bring the build-out sewer usage closer to the contracted capacity. He said the Township felt this was necessary since to increase the capacity would cost $5,000,000 per MGD and the plant expansion would require a minimum commitment of 6 million gallons. He said this is $30,000,000. He said the Township felt this would place an unreasonable cost on the users in the Township. He said in July 2002 the Planning Commission adopted the Comprehensive Plan that included an "existing and planned public utilities" map that follows the revised service area map. He said this was approved as a draft in May of 2002.

1. Robert Czachorski, of Ayers, Lewis, Norris and May (ALNM), stated that in the Members' packets was a letter dated March 15, 2004 from himself. He said the letter outlines the procedures the Township used to reduce the water and sewer district boundaries. He said the Township has a contract with YCUA of 4.5 MGD. He said in 2000 the Township was asked to project their wastewater flow needs in the YCUA system for a potential YCUA wastewater treatment plant expansion. He said a study was prepared in May of 2000 on the Township’s wastewater flow. He said this report showed a build-out flow to the YCUA system of 6.85 MGD. He said they used industry standard projections for land use density, number of people per household and flow per person in the report. He said the three people per dwelling unit is a standard for the density expected in Pittsfield Township in 2020. He said this is based on data from SEMCOG and census data. He said the Township felt it would be a burden for the current users to buy additional capacity in YCUA.

2. Czachorski said he would like to expand on the risk of committing to additional development, which can result in additional flow beyond 4.5 MGD. He said YCUA asked for 6 MGD and it has to be in increments of five MGD. He said the Township could partner with other communities to obtain the capacity. He said this capacity might not exist in the future in the YCUA system. He said in 10 or 15 years when the Township approaches the 4.5 MGD capacity, the YCUA plant may require an expansion which would make this even more expensive. He said the property owners could find themselves in the middle of the Township surrounded by water and sewer and not have access to them. He said the water and sewer districts were reduced together and the districts are identical because the Township has a requirement that water and sewer must be connected together.

3. Czachorski said in 2000 the reduction of the district boundaries focused on two areas. He said the first is referred to as the Central Preserve. He said this area was removed because it is low-lying with many natural features. He said this area would require several sanitary pump stations to be serviced. He added this would be expensive to construct and operate. He said some of the southern areas in the Township are not cost effective. He said after the southern area was taken out, the Township was still not near the 4.5 MGD after build-out. He said rural areas where there was no development planned were considered for removal. He said areas that were being developed were left in the water and sewer district. He said to reduce the demand, the developable acreage or the density must be lowered.

Chairperson Naik asked if there was an error on page 2 of Mr. Czachorski’s letter.

1. Czachorski stated that page 2, item 3 should read, “it is generally not cost effective to provide water and sewer to these areas.”

Member Grosshans asked Mr. Czachorski to expand on the applicant's statement that the property will not support septic systems.

1. Czachorski stated this was the basis for his March 15, 2004 letter. He said four of the soil borings show it may be feasible to use septic systems on this site. He said the Health Department requires sandy type soil in the top six feet of the soil. He said if this material does not exist, the Health Department does allow deep-cut excavation up to 20 feet. He said three of the four soil borings encountered a sandy soil. He said the Health Department states that 60 soil borings would be suitable, and only 7 were done. He said to determine the level of groundwater, you should dig a well in the ground and let the level of water equilibrate over the course of several days. He said this type of analysis was not done.

Member Resha asked if the Health Department was present for the soil borings.

1. Czachorski stated they were not there.

Zoning Administrator Spencer stated that finding out where the groundwater is requires good testing. He said the Health Department does not accept borings; they typically want a trench dug with a backhoe. He added that the Township does not know what the capacity will be at the YCUA plant in 20 years. He said environmental health regulations and air pollution standards might restrict them from expanding the site. He stated that the applicant has said that the Comprehensive Plan that was in effect at the time they petitioned for the rezoning should be used. He said the Township attorney has stated that the previous Comprehensive Plan does not give the applicant a vested right to obtain 2 ½ dwelling units per acre, nor the use of utilities. He said zoning districts and their permitted uses are established by the Township Board.

Zoning Administrator Spencer stated that after many steering committee meetings, Board meetings and Planning Commission meetings, the draft Plan of May 2002 and the adopted 2002 Plan excluded the subject property from the water and sewer service area and designated the property for one unit per acre. He said the planning process was extensive and that it reflected the will of the community. He further said that contrary to Mr. Jacob's contention, removal from the water and sewer service district was not the only reason the property changed to 1 dwelling unit per acre.

Zoning Administrator Spencer said the current zoning for the parcel represents good planning practices. He said this parcel is at a density desired by the Township and its citizens. He said the density respects the limitations of the public sewer system and helps preserve plant capacity. He said the density is consistent with (Land Use) Chapter 2, Vision A, Policy 5 of the Plan. He said that the build out of Rolling Meadows, Rosewood, and Platt Road Condominiums will add about 5,000 trips per day to Platt Road. He added that this would almost double the 6,000 trips recorded in 2002. He stated that the proposed density in the plan provides a transition between the moderate density to the west and north with the lower density to the south and east.

Zoning Administrator Spencer said reducing development along Platt Road will help with the congestion at Platt and Michigan. He added that the comment from Atwell-Hicks stating that the area does not have any natural features is false. He said 20 acres of this property contains woodland and wetlands. He said the applicant did not consider clustering according to the provisions of 56.22 of the Zoning Ordinance. He said this provision states that the lot sizes could be reduced by half with the provision that they save 50 percent of the property as open space.

Chairperson Naik asked if the Members have questions for Mr. Spencer or Mr. Laidlaw.

Chairperson Naik asked if Mr. Laidlaw had anything to present.

1. Bruce Laidlaw, Township attorney, stated he provided the Board and Arbor Oaks with a memo on the 15th outlining his view of how this matter should proceed. He said he feels the issue of sewer and water is irrelevant to the ZBA. He said the ZBA does not have the authority to grant water and sewer connections. He said the question is whether this property can be developed economically at the density that it is zoned for (R-1A). He said the Board can look at the cost estimates and decide if it is uneconomical to develop this property, and if it is the Board can grant a variance to reduce the minimum lot widths. He said the question the Board needs to focus on is whether this property can be economically developed as zoned. Member Grosshans said the contention from Mr. Jacobs is that the sewer line is on Platt Road, and this is why it should be used rather than a septic and well system.

2. Laidlaw stated the parcels fronting Platt Road might have a right to access, although this is not an issue for the ZBA.

Chairperson Naik asked how long Mr. Jacobs' presentation would be to determine if the Board should take a break.

1. Jacobs stated he expected the presentation to take at least an hour.

Chairperson Naik called for a ten-minute break at 7:45 p.m.

Chairperson Naik called the meeting back to order at 7:55 p.m.

Chairperson Naik stated Mr. Jacobs spent a long time presenting his case at the previous meeting. He said he hoped Mr. Jacobs would not be repeating old information.

1. Jacobs stated he did not intend to repeat anything. He said he did intend to rebut the comments made tonight.

Chairperson Naik stated he would reserve the right to interrupt any repetitious information.

1. Jacobs stated some of the information would need to be repeated in order to address certain issues. He stated there are four criteria that have been established by a recent case, and he would like to address this tonight. Number 1- the property cannot be used in a manner consistent with the existing zoning. Number 2- the landowner’s plight is due to unique circumstances and not the general conditions of the neighborhood that may reflect the unreasonableness of the zoning. Number 3- is that a use authorized by the variance would not alter the character of the property. Number 4- that the hardship is not a result of the applicant’s own actions. He noted that these criteria are stated in Jansen versus New Holland. He said they did not rezone the property to R-1A, and said they did not install the sewer and water on Platt and Merritt Road, and said they did not remove themselves from that [sewer] district.

2. Rod Arroyo, Vice President of Birchler-Arroyo Associates, stated the PUD option should not be considered because it is not a permitted use. He added that a PUD is a permitted use in an R-1A district, but the PUD is a discretionary decision by the municipality. He said the site also does not qualify for the open space option. He said the Zoning Ordinance specifies that neither the parent lot nor the individual parcel or condominium unit within a proposed open space development is dependent upon the extension of public water, sewer, or sanitary sewer services. He said one criterion is, can the property be used in a reasonable manner as zoned, and can the applicant achieve a reasonable return on investment. He said that experts have stated the soils are not suitable for septic systems, which requires the site to hook up to water and sewer. He said what is unique about the property and not found throughout the Township is the presence of water and sewer adjacent to property; the property is a half mile from a state trunk line, and a quarter mile from an interstate highway. He added these are situations that are not typical for every property. He said these are unique situations that are associated with this property.

3. Arroyo said this is not a self-created hardship. He said the soil conditions and other changes to this site are not a result of the applicant’s action. He said he would like to discuss transitional zoning. He stated that throughout the Township R-1B zoning is adjacent to agricultural zoning. He said Platt Road is adequate for the additional traffic generated by this development.

Chairperson Naik asked Mr. Arroyo why he felt a PUD district was not reasonable.

1. Arroyo stated a PUD district requires you to change the zoning and the zoning map. He said this is something that the developer cannot rely on. He said the PUD is up to the discretion of the community to grant, and it should not be a factor in consideration. He said the uses that can occur within that zoning district should be looked at. He added that if the applicant were given R-1B zoning, and water and sewer were provided, a PUD could be pursued.

Member Resha stated this Board cannot grant a PUD, this is up to the Planning Commission. He added this has not come before the Planning Commission yet.

1. Arroyo stated the applicant has not applied for a PUD.

Member Resha stated the applicant has not applied for water and sewer, and the applicant has not contacted the Health Department to obtain proper boring samples.

1. Arroyo stated the applicant wants the Board to consider the facts in the application, and grant the use variance.

Member Resha stated the Board cannot grant a variance when the information presented has been false.

1. Arroyo stated the application stands on its own, and there would be testimony from numerous people to address the facts.

Member Brostrom stated the Board is considering a use variance. He asked the applicant if he expects the Board to change the zoning to R-1B. Mr. Arroyo stated the density can be changed to be equivalent to what an R-1B zoning would allow. He said the lot sizes and setback requirements could be modified.

1. Bill Anderson, Atwell-Hicks, stated if the R-1A zoning with utilities were viable, there would be more of it throughout the Township. He then reviewed his cost estimate. He said problems can arise that are not anticipated in cost estimates. He mentioned a site can require almost $20,000 in additional paving. He said there are three rules of land development: it is going to cost more money than you thought, you are going to get fewer lots than you thought, and it is going to take longer than you thought. He said when you add school premiums, location premiums, and great sites, you get a higher marketability.

Member Brostrom said that Mr. Anderson stated at the last meeting that there might be 15 locations on this site where well and septic are possible. He said Zoning Administrator Spencer presented a scenario with 11 lots, wtih a 91% return on investment.

1. Anderson stated their numbers are significantly different. He said it would not be appropriate to connect so few lots without water and sewer to an urban subdivision off Platt Road. He said the Ordinance says if the utility is in the right-of-way, that the property owner has the right to connect to the utility.

Member Resha stated it is not the developer’s right to access the utilities. He said it is the right of the people with failing septic tanks to hook up to the utilities.

1. Anderson stated the important issue is, are public sewers required. He said the public sewer means, “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 sewer.” He added that this property was designated to have sewer. He said a subdivision on well and septic would not be viable.

Member Grosshans stated that Mr. Anderson had discussed the test borings and claimed the property would not be suitable for well and septic, and yet tonight the Board was hearing conflicting information.

1. Anderson stated the land division act has a more lenient code relative to septic field design, and in what locations you can go to a deeper septic depth. He said the Township will not get a viable subdivision with these soils. He said it is not appropriate at the rezoning stage to get the Health Department involved. He said usually a site receives the appropriate zoning, then you do a preliminary layout, and then you involve the Health Department. He said it was appropriate for them to have R-1B zoning because there are utilities there.

Member Brostrom said that assuming the ZBA granted 2 ½ units per acre density, it has no authority to grant the water and sewer. He said the ZBA would put the Township Board into the position that it has to grant access to sewer and water.

1. Jacobs stated the ZBA has the ability to relieve hardships that may not be self-created. He said the ZBA can give 2 ½ units per acres if the physical layout warrants this. He said Mr. Laidlaw has stated the Board has the right under the R-1A zoning to grant this. He said the Board is supposed to relieve unnecessary hardship, and this hardship was not self-created.

Member Brostrom asked what would happen if the Township Board said no.

1. Jacobs stated this is a prerogative of the Township Board.

Chairperson Naik asked if a 25% return on investment is reasonable, and if it is, how did they come to this conclusion.

1. Anderson stated land developers look at the different costs they will face in a project. He said they allow 15% to 30% as a typical return.

Chairperson Naik asked Mr. Anderson if he had an opinion on Zoning Administrator Spencer’s alternative development plan.

1. Anderson stated this is not an appropriate and fair use for this property. He said there is a reason this property was originally put in a R-1B district. He said this was because of US-23, Michigan Avenue, and the Township Hall. He said this is where the Township put in utilities and planned for development.

Chairperson Naik asked if Mr. Anderson had an opinion on the different design standards on the site.

1. Anderson stated if you wanted to remove curb and gutter and go to a ditch standard, there would be big marketing questions. He said he would have to ask if this is a reasonable location for a half-million dollar home. He said not many builders would say this.

2. Caterino stated he would like to discuss the soil borings. He said ten borings were done, and they all showed surface clay. He said clay soil is down 6 to 15 feet. He said a water table is not seen in every boring, because the soil texture is fine and the water moves through it slowly. He said of the two that showed sand, one showed a water table just below the interface, and the other showed a water table below the sand. He said one boring shows clay to 6 feet 3 inches, and sand to 15 feet 8 inches. He said the water table was found below the clay at 6 feet. He said if soils are compacted tightly, the water will not move through them. He said water will not be seen unless the hole is left open for an extended period of time. He said boring numbers 2 and 4 are close together. He said you do not usually see a change in the water table of eight or nine feet from one side of a site to the other. He said there can be a lot of silt in sand, and this soil is compacted and the water does not move through it. He said in other instances you find sandy and granular soil, which the water moves through better. He said the borings can take longer to fill depending on the texture of the soil. He noted that he talked with Mr. Dick Fleece and Mr. Majed Ghussani [both of the Washtenaw County Health Department]. He said he had not asked them to formally evaluate the site because he felt it was not warranted. He said he provided Mr. Ghussani with information on the site and asked if he could get 35 lots out of this property. He said Mr. Ghussani said no, from an estimated point of view. Mr. Caterino said he has worked 28 years on approval of onsite sewage disposal for subdivisions. He said he was the one to make the final call for a site. He said when the State wrote the guidelines for on-site disposal, he chaired the committee and drafted the reports. He said he does not see a way to get a subdivision on this site approved with on-site sewage disposal.

Member Grosshans asked why the borings did not go down to 20 feet.

1. Caterino stated the reason they may have stopped is because they encountered saturated soils above 20 feet. He said you can cut to sand if you do not go through the water table to get to it. He also said they do not have a 15-foot auger. He said they found saturated sand and did not want to waste the client’s money by digging further.

Member Resha asked whether they would waste money by going down the extra 5 feet.

1. Caterino stated 20 feet is not a magic number.

Member Grosshans stated the county says to go to 20 feet.

1. Caterino stated this is only when a water table is encountered, and they did.

Member Resha stated he does not believe they encountered water at 7 feet.

1. Caterino stated in one boring they encountered water at 6 feet.

Member Grosshans asked what would happen if you reached 18 feet and found dry sand.

1. Caterino stated that if there is water at 16 feet, there will be water at 18 feet.

Member Grosshans said that the water table could be at 6 feet with a layer of clay below. He said the clay is like a wall, and if you went down to 18 feet you could hit dry sand.

1. Caterino stated this could not happen because of the way soils are laid down in this area. He said on this site you can dig deep and find blue saturated clay. He said this area was a lake bed. He said you can open a hole in the blue clay and it will fill, although it will take a long time. He said these borings were done in August, but if they were done in March or April, the water table would be higher.

Member Grosshans stated ten borings were done, although the Board only has information on seven.

1. Caterino stated he was sure ten borings were done.

The Members and Mr. Caterino discussed the different boring reports submitted, and it was determined that Mr. Caterino had a report with findings that were not the same as those submitted to the Board.

1. Czachorski put the same question Mr. Caterino asked Mr. Ghussani about the site being developed with 35 sites to the Health Department. He said the Health Department stated community on-site disposal systems may be a possibility.

Member Grosshans asked if this would be a cluster of houses serviced by one septic field.

1. Czachorski answered yes.

Member Grosshans asked if the sites were suitable.

1. Czachorski stated a better way to determine this is to place a well there. He said the tests are inconclusive, because a proper investigation has not been done.

Member Resha stated sand is self-compacting. He said if you have this amount of earth on top of sand, it is going to be compacted. He added water will move through as long as the sand is not saturated.

1. Czachorski stated the rate water moves may vary. He plotted the locations of the borings and they are clustered. He said if you drill on a high part of the site, you could encounter sand above the groundwater table. He said proper investigations may find suitable locations for deep cut on-site excavation, or for a community disposal system.

Chairperson Naik asked what the difference in elevation is.

1. Czachorski stated if 60 borings were done throughout the site as recommended by the Health Department, suitable sites may be found.

2. Brostrom asked how much dry soil or sand is needed above the water table in order to have a septic field.

3. Czachorski stated two feet.

4. Caterino stated the State’s code asks for 4 feet.

Member Brostrom stated the one-acre lots where he lives sell very fast. He said he is not convinced that one-acre lots are not marketable. He added the lots near him are near US-23 and Michigan Avenue. He said his property is near the water table, and in 30 years, he has never had a problem with the septic field. He asked what would happen if this site is unsuitable for well and septic would the Township provide water and sewer if necessary.

Zoning Administrator Spencer stated if this was impossible the Township would agree to water and sewer hookups. He said they might ask the developer to do a PUD District.

1. Jacobs stated that the Present Condition Rule requires that you look at the present condition of the area and not what is in the future. He said a PUD district is completely discretionary, and that they are not in the sewer and water district because the Township wants to preserve capacity for future developments. He said letters from YCUA state there is additional capacity. He said they are faced with a situation where they cannot get a return on an investment-backed opportunity. He said the lost opportunity costs and the interest rates need to be looked at. He said their figures are absolutely conservative.

Chairperson Naik stated Mr. Jacobs was repeating everything the Board has already heard.

1. Jacobs stated that he wanted to indicate everything that had been established tonight. He said the hardship is not the applicant’s fault. He said the property cannot be used under its current zoning. He said the land uses proposed by Zoning Administrator Spencer cannot be accomplished. He said the plight is unique, and it is not due to general conditions of the neighborhood. He said the use will not alter the character of the property. He said they are asking that 2.5 units per acre be granted, and if necessary sewer and water be provided.

Chairperson Naik stated that, assuming we go with the R-1B density, even though we are not calling it a zoning change that is what we are doing.

1. Jacobs stated he is asking for a use change.

Chairperson Naik said this is the same thing. He then asked what the return on the investment would be if 2.5 units per acre were granted. He asked what Mr. Jacobs thinks is a reasonable return on the investment. He also asked if Mr. Jacobs thinks the ZBA is qualified to determine what a reasonable return is on any investment that the developer makes.

1. Jacobs replied no, this Board is not qualified to make that decision. But he said the only practical way to develop this site is to grant it a density equivalent to R-1B and allow sewer and water.

Chairperson Naik stated this Board has not seen plans detailing the costs so the Board can compare them.

1. Jacobs stated they have said this cannot be done on well and septic. Water and sewer on one-acre lots would not help. He said a site plan would not be appropriate, because they are asking for the dimensional requirements of the R-1B density.

Member Brostrom asked when the property was purchased.

1. Jacobs stated the property was purchased in June of 2001.

Member Resha asked why the owner of the property did not attend the meetings involving the revision of the Comprehensive Plan.

1. Jacobs stated he was at every meeting, and the owner attended the meetings. He said he objected to the site being taken out of the utility district and he asked to be put back in.

2. Jacobs stated the plan asked for by Chairperson Naik earlier is in the use variance application.

Zoning Administrator Spencer stated this plan was referenced in his report. He said he does acknowledge the Township has a copy of this.

Zoning Administrator Spencer stated that it had been claimed that Section 56.22 of the Zoning Ordinance could not be applied to this property, because it would be dependent on water and sewer. He said this was not true. He said this could be done with joint drain fields. He added that the facilities would not have to be on the lots, they could be in easements or in the common area. He said he agrees with Mr. Anderson that 10 to 15 sites could be found for on-site sewage disposal on the site. He said a PUD District cannot be considered right now for this site. He said a PUD District is an option that could be pursued, although it would be an action separate from the variance being requested. He said it is hard to believe that they need a 250 percent variance to meet their requirements. He said the utility lines were not built specifically to service this property. He said it is appropriate for the residents of the Township to have a say in what is developed and what they want for the Township. He said the reports received regarding the borings showed moist soils from top to bottom. He said some of the borings were dug to 15 feet and were still moist, not saturated.

Chairperson Naik stated the Board had been discussing this for a long time, and there was a great deal of information for the Board to digest. He said the Board had heard all sides of the story. He said the ZBA is governed by Ordinance number 60.04, which requires the Board to go through the findings. He added the following statement from the Ordinance: Under no circumstances shall the Board of Appeals grant a variance to allow a use not permissible under the terms of this ordinance in the district involved, reduce the required lot area or road frontage below the minimum required for the district therein located or permit any use expressly, or by implication, prohibited by the terms of this ordinance in said district.

Zoning Administrator Spencer stated this Ordinance was written in the 1960s, and since that time the courts have stated that Zoning Board of Appeals can grant use variances. He also mentioned his cost estimate calculations could be presented in writing.

1. Laidlaw stated the courts have decided that the Zoning Board of Appeals has the power to grant use variances and that this power cannot be restricted by the Township. He said the quoted Ordinance attempts to take away the use-variance power, and the courts have said it goes too far. He said the quoted language could be ignored, because it attempts to diminish a power of the Zoning Board of Appeals already granted by State statute. He said to get this matter into a position where a court could review it, the Board needs to make a decision and then back that decision up with detailed findings..

Chairperson Naik asked if the ZBA has to make a decision one way or another.

1. Laidlaw replied yes.

Member Resha asked if this decision had to be made tonight.

1. Laidlaw replied no. He added that if the Board finds a hardship, it might be relieved by perhaps a 15% variance, not necessarily by 250%.

Chairperson Naik stated a decision needs to be made, although he is not sure if the decision should be made tonight in light of new information.

Member Brostrom stated he would like to reflect on the new information. Chairperson Naik said unfortunately this is a financial decision, and this is why he kept asking about reasonable investment. He said he would like to make sure all the information is considered.

Zoning Administrator Spencer stated the Board can set another meeting in order to evaluate the information.

Member Brostrom stated he would feel comfortable with this.

Member Resha stated he agreed with setting another meeting.

Member Grosshans asked if 1.5 or 1.75 units per acre would be reasonable.

Zoning Administrator Spencer stated the Board should consider all the information and find a number that is reasonable. He said one alternative is a land division with a 97% return on investment. He told the Members more information could be requested if it is needed. He asked if a copy of the transcript could be received from the court reporter attending the meeting.

The ZBA and the court reporter came to an agreement.

Members, staff and Mr. Jacobs agreed to a meeting time.

Motion by Member Resha, supported by Member Brostrom, to postpone ZBA 02-7 Arbor Oaks rezoning, to convene March 29, 2004 at 8 p.m.

MOTION CARRIED

6.0 New Business

None.

7.0 Zoning Administrator’s Report

Zoning Administrator Spencer stated if the Board requests additional information he would provide it.

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 February 25, 2004

Motion by Member Resha, to approve the minutes of February 25, 2004, as distributed this evening.

Member Resha withdrew his motion.

12.0 Adjournment

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

MOTION CARRIED

Chairperson Naik adjourned the meeting at 10:05 p.m.

________________________________________________________________________ s/Alayna Stagg, Secretary May 24, 2004