Pittsfield Charter Twp, Michigan

REGULAR MEETING May 10, 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: Michael Baker, Robert Jacobs, Assistant Planner Jennifer Black, 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 6:34 p.m. A quorum was present.

2.0 Approval of Agenda

Motion by Member Grosshans, supported by Member Brostrom, to move Item 5.1 of Old Business to follow Item 6.1 of New Business.

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 clarification of previous action for a use variance R-1A to R-1B]

Item moved to follow Item 6.1 of New Business.

6.0 New Business

6.1 ZBA 04-02 Big Sky Development/U. S. Storage [submitted for a variance to increase the size of a wall sign]

Mike Baker, Schonsheck Inc., stated he is here tonight to discuss a variance to allow an (area) increase for a wall sign. He said this is a multi-building site with two buildings that have frontage along State Street. He said one building is a speculative multi-tenant building, and the other is a national storage chain. He mentioned they worked with Pittsfield Township and the Washtenaw County Road Commission (WCRC) and consolidated the entry and exit points on this site. He said after this was done he found out that once a property has shared amenities such as circulation and single property ownership, the property becomes a business center. He said the Ordinance pertaining to signs states a multi-building site in a business center reduces the signage in half. He said this is not a problem for the multi-tenant building, although it is for the storage depot. He said normally a building in the I-1 zoning district would allow an eighty (80) square foot sign. He added that an eighty (80) square foot sign is five (5) feet more then a typical sign for U.S. Storage Depot. He said to take the signage for the storage depot down to forty (40) square feet would put the sign under the corporate standard for U.S. Storage. He said this would provide a burden to the user. He said if it is assumed that the multi-tenant building would have two (2) tenants with 100 foot frontage, they would be allowed a sign area of forty (40) square feet. He said this would give the smaller of the two (2) buildings eighty (80) square feet of sign area, and would give the larger building forty (40) square feet. He said they are asking for a variance to allow the larger of the two (2) buildings a sign area of eighty (80) square feet.

Member Brostrom asked Mr. Baker to repeat his final comment regarding the sign size for the separate properties.

1. Baker stated if these were separate buildings each one would be allowed eighty (80) square feet of signage area. He said one (1) square foot is allowed per linear footage of frontage. He said with two hundred (200) linear feet this would give you two hundred (200) square feet. He added that the Township Ordinance limits this to eighty (80) square feet. He said because this is a business center the sign area for the site is reduced by half. He said by creating a business center they satisfied the Township’s design preferences, although it reduced their signage.

Member Grosshans asked how many businesses are in the business center.

1. Baker stated there are approximately ten (10) businesses shown on the plans.

Member Grosshans asked how big the building frontage is. Mr. Baker showed the members on the plans where the buildings are located. He then pointed out the frontage for the different buildings. He mentioned that U.S. Storage Depot has two hundred and sixty-three (263) feet of frontage. He said the proposed sign is seventy-five (75) square feet.

Member Resha asked if the sign is neon.

1. Baker stated the sign is internally lit, and the neon is not visible.

The Members and the applicant referred to the plan and discussed the buildings.

Member Grosshans asked Mr. Baker if he feels doubling the signage would increase the traffic into the storage facility.

1. Baker stated it would be more recognizable. He said the signage is a corporate standard. He added that a bigger sign would mean better visibility.

Member Grosshans stated people looking for a storage facility are not just driving down the road and looking for the first storage facility they see. He said the people would know ahead of time where they want to go.

1. Baker replied this is correct. He said there is some marketing to casual drive bys, because people would come to recognize the facility. He said a larger sign would draw the eye of the people. He said they are not asking for anything that is above or beyond what the Ordinance would normally allow.

Member Grosshans asked if the storage facility was the only business on the site, would an eighty (80) foot sign be allowed.

1. Baker replied yes.

Member Resha asked what the height of the sign is.

1. Baker stated the proposed sign is approximately thirty-four (34) inches high.

Member Resha asked if the sign will be twelve (12) inches deep.

1. Baker replied yes. He said it is twelve (12) inches deep to maintain the mechanical features.

Member Brostrom asked how far off the road the storage facility is. He mentioned it has to be fairly close to the road because it is very visible.

1. Baker stated the building is one hundred and sixty-five (165) feet off the road. He mentioned the building setback is more than what is allowed because of the parking in front of the building.

Zoning Administrator Spencer reviewed his report and stated the Board must review this and compare it to the standards in Section 60.04 [of the Zoning Ordinance]. He said the Board must decide if adhering to the maximum permitted wall sign area of forty (40) feet wide is burdensome. He said the Ordinance permits a sixty-five (65) square foot ground sign with two (2) faces for the entire business center. He said the ground sign would be perpendicular to State Street. He said the ground sign could say just U.S. Storage Depot, or it could have the other business names in small print. He said the Ordinance permits forty (40) square foot wall signs, and each business unit can have one sign equal to half the frontage, up to forty (40) square feet. He said on the north side of the site are the multi-unit speculative units, and some have frontage and some do not. He said the ones without frontage could have a combined twenty-four (24) square foot sign. He said the forty (40) square foot sign would be located one hundred and sixty-five (165) feet from the centerline of the road. He mentioned that would be a readable sign. He said a sign that is three (3) feet tall and thirteen (13) feet wide would be thirty-nine (39) square feet. He said the Building Identification Ordinance states that to accurately identify a building ninety (90) feet from the road, you need nine (9) inch high numbers that are 1 ½ inches thick. He said if this was one hundred and eighty (180) feet from the road the numbers would be eighteen (18) inches high to be readable.

Zoning Administrator Spencer stated the Board must decide if granting the variance would do substantial justice to the applicant and other property owners in the district. He said the owners of other properties must comply with the sign regulations in the Zoning Ordinance. He said the purpose of Article 53 in the Zoning Ordinance is to regulate onsite signs and outdoor advertising to protect the welfare, property values, and character of various neighborhoods, the display of signs must be appropriate to the land and the sign should be adequate but not excessive. He said the Ordinance states that with respect to signs, it is intended to avoid excessive competition and clutter among sign displays. He said business centers have more than one tenant so they demand more signs, and the Ordinance compensates for this by reducing the area of the signs. He said if the variance is granted for this wall sign, the applicant could still have the same signage they are allowed in the Ordinance on the rest of the buildings.

Zoning Administrator Spencer said the Board must determine if the plight of the applicant is due to unique circumstances of the property and not the general conditions of the area. He continued and said having one entrance into the site gave the applicant a benefit. He said there are no setbacks between the properties. He said normally the Planning Commission would have required landscaping along the property lines. He said the driveways would have had to be the same width for each business. He said the applicant might not have been able to build buildings of this size if this was not combined into one lot. He said there was a definite advantage for the applicant to have taken this choice.

Zoning Administrator Spencer said the Board must decide if the problem is self-created. He said the construction of a business center was the applicant’s choice.

Zoning Administrator Spencer said the Board must not consider other non-conforming uses as grounds for granting this variance. He said the Board must decide if granting the variance is in the spirit of the Ordinance and does substantial justice. He said increasing the sign area over the maximum permitted in the Ordinance is contrary to Article 53 regarding keeping signs adequate.

Chairperson Naik asked if there was a variance on this property for another reason.

Zoning Administrator Spencer replied yes. He said the variance was granted regarding the number of stories (3).

Member Grosshans asked what happens to the other businesses in this business center as far as signage.

Zoning Administrator Spencer stated they will be able to have the signage that is permitted in the Ordinance. He said five of the business units have frontage onto State Street.

Member Grosshans asked how many businesses could be built on the site.

Zoning Administrator Spencer stated there could be twenty (20) square foot signs for each business, plus twenty-four (24) square feet for the rear units in the building, which totals one hundred and twenty-four (124) square feet of signage on the building. He said on the ground sign, they will be allowed to use part of the sixty-five (65) square foot sign. He said the sign could be prorated so each business has a spot on the sign.

Member Grosshans asked if this was approached as two separate entities.

Zoning Administrator Spencer stated it is being treated as one business center.

Member Grosshans asked if there is any history to this.

Zoning Administrator Spencer stated they talked to the Township about doing two separate uses on the site. He said with the parking, driveways, and drainage facilities combined they decided this should be a business center. He said this is one development. He said the applicant brought in one site plan and it went through the Planning Commission as one unit.

Member Grosshans asked if Avis Farms is a business center.

Zoning Administrator Spencer replied no. He said Avis Farms is an industrial park. He said there are some business centers located within industrial parks.

Member Resha asked Mr. Baker if a ground sign and a wall sign are proposed just for U.S. Storage Depot.

1. Baker stated there will be one ground sign that identifies the entire development.

Planner Black showed on the plans what was proposed for the ground sign to Member Resha.

Member Resha stated on the plan the ground sign is one hundred and twenty-eight (128) inches long and the height is seventy-three (73) inches.

Zoning Administrator Spencer stated the ground sign does not get regulated based on the front footage of the building.

Member Resha stated he cannot see why the applicant would need a ground sign this big, and a wall sign that will be eighty (80) square feet. He stated the applicant agreed to put the building under one ownership and the applicant should have researched this more.

Member Stagg stated the applicant has substantially benefited by (this project) being one unit, because of the shared parking, driveways, and drainage. She said with a building this size people will see it. She said she would like to keep the signage to an adequate but not excessive amount. She said she feels this proposed amount of signage is excessive.

Member Brostrom stated the applicant emphasized the corporate standard for the sign rather than the visibility factor.

1. Baker stated this is correct. He said the building has a corporate identity. He said the design of the sign, the size, and the location are part of the corporate identity.

Member Brostrom asked Mr. Baker if he was taking strong issue with the Zoning Administrator’s comments that a smaller sign could have letters that are three (3) feet tall. He said a sign with letters of that size would be visible from State Road.

1. Baker stated he agreed. He said the recommendation at ninety (90) feet is to have letters that are nine (9) inches, and at one hundred and ninety (190) feet, the letters would be eighteen (18) inches. He said at one hundred and sixty-five (165) feet they are proposing letters that are twenty (20) inches. He said this figure it not that far off from what is recommended.

Zoning Administrator Spencer stated the proposed sign is forty (40) inches high, and 86.58 square feet. He said the gaps in between the letters were not accounted for. He said based on the Ordinance these gaps are counted.

Member Grosshans asked if the sign would just say U.S. Storage Depot.

Zoning Administrator Spencer stated this could be split up. He said if this was prorated at six tenths for U.S. Storage, and four tenths for other signage, they might be able to keep it at twenty (20) inches.

Member Grosshans asked if the words “climate controlled self storage” were taken off, would it meet the requirements.

Zoning Administrator Spencer stated the applicant wants this twenty-six (26) feet long. He stated the total height proposed is forty (40) inches, which is 3.33 feet. Multiply this times 26 feet, which equals 86.58 square feet.

Member Resha stated this is larger than the eighty (80) square feet allowed.

Zoning Administrator Spencer stated the applicant thought the footage was seventy-eight (78) square feet when they submitted it. He said this can be adjusted.

Member Resha asked if it would be twenty (20) inches in height, and thirteen (13) feet long to be adequate.

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

MOTION CARRIED

Motion by Member Brostrom, supported by Member Grosshans, to grant the variance request (for ZBA 04-02 Big Sky Developments/U.S. Storage).

Member Resha stated the Township does have Ordinances that are explicit. He said the Township staff is always available to help builders and property owners at any given time. He said when an applicant goes into a project like this they need to know everything there is to know, especially if it is a corporate sign that is the same on every building. He said there are sign regulations in every township. He said he feels the joining of the properties has nothing to do with the signage. He said the sign stands on its own, and the applicant should have researched this more.

Member Brostrom stated this is an issue that comes up in a lot of cases. He said he has gone to commercial sites that have come before the Board to see if the signage is too small, and in every case, the signs were very visible. He said the Township Ordinance dealing with this issue is completely reasonable. He added he is uneasy about setting a precedent and allowing the applicant to have a larger sign.

Chairperson Naik stated he agrees with Member Brostrom. He said the same issue with corporate themes arose with Applebee’s. He said Flagstar Bank was turned down for their sign request. He added a precedent would be set if this was granted.

Member Stagg stated that having a ground sign and a wall sign is enough signage, and she believes they will be visible.

Chairperson Naik read the Findings:

1. The strict compliance with the restrictions governing permitted sign area permits the owner to use the property for the permitted purpose because of the following reasons:

2. The Zoning Ordinance permits a 65 square foot ground sign with two faces for the whole “Business Center.” B. The Zoning Ordinance permits up to a 40 square foot wall sign for any business with frontage in the “Business Center” up to the square footage equal to one-half the front footage of the unit. C. A 40 square foot sign located 165 feet from the centerline of State Road would be very readable from State Road.

   YEAS: RESHA, GROSSHANS, STAGG, BROSTROM, NAIK. NAYS: NONE.

3. That the granting of the variance requested would do substantial justice to the applicant but is not consistent with justice to other property owners in the district because of the following reasons:

4. The owners of other properties also must comply with the sign regulations in the Zoning Ordinance. The purpose of the Article 53 of the Zoning Ordinance is “… to regulate on site signs and outdoor advertising so as to protect the health, safety and general welfare, to protect property values, and to protect the character of the various neighborhoods in Pittsfield Township” and “It is intended that the display of signs will be appropriate to the land, building, or use to which they are appurtenant and be adequate, but not excessive, for the intended purpose of identification or advertisement. With respect to signs advertising business uses, it is specifically intended, among other things, to avoid excessive competition and clutter among sign displays.”

Chairperson Naik stated he believes this would not be achieved if they granted the variance.

Member Brostrom stated the issue of clutter was discussed and it is a real issue.

YEAS: RESHA, GROSSHANS, STAGG, BROSTROM, NAIK. NAYS: NONE.

1. That the plight of the applicant is not due to unique circumstances of the property but to general conditions in the area for the following reasons:

2. The combining of the properties to permit the joint use of the driveway and parking facilities provided a benefit to the applicant by reducing the amount of driveway pavement and setback area required along with the combining of the drainage facilities permitted larger footprint buildings to be constructed on the site.

Member Brostrom stated this is what the discussion focused on.

Member Grosshans asked Zoning Administrator Spencer if in the discussions he had with the applicant, was it made clear that if a business center was created there were certain conditions that would apply.

Member Resha stated when a business center is created the applicant should research all aspects of the Ordinance. He said if this was researched by the applicant, they would have known this proposed sign would not fit with the Ordinance. Mr. Baker stated he was not made aware that this property was going to be classified as a business center, until he submitted for a sign application. He said unless you read the definitions in the Ordinance it is hard to find what classifies a business center. He said there was no discussion between himself and the Township in terms of being classified as a business center. He said it was his responsibility to research this but he would have appreciated knowing it in advance.

Member Grosshans asked Mr. Baker if he had known this was going to be classified as being a business center, would this have stopped him from constructing the business.

1. Baker stated he does not think he would have received approval. He said they would not have had approval from the WCRC, therefore, this drove his decision.

YEAS: RESHA, GROSSHANS, STAGG, BROSTROM, NAIK. NAYS: NONE.

1. That the plight or problem is self-created because of the following reason:

   1. The construction of a business center was the applicant’s choice.

Member Resha stated he believes the plight was self-created, although he does not know what drove it to that decision.

YEAS: RESHA, GROSSHANS, STAGG, BROSTROM, NAIK. NAYS: NONE.

1. The Board did not consider the non-conforming use of neighboring lands, structures, or buildings in the same district, nor any permitted use of lands, structures or buildings in other districts as grounds for approving the subject variance petition.

   YEAS: RESHA, GROSSHANS, STAGG, BROSTROM, NAIK. NAYS: NONE.

2. That the variance requested does not observe the spirit of the Ordinance for the following reason:

3. Increasing sign area over the maximum permitted in the Ordinance is contrary to the purpose of Article 53 to keep signs adequate and to avoid excessive competition and clutter among sign displays.

YEAS: RESHA, GROSSHANS, STAGG, BROSTROM, NAIK NAYS: NONE.

ROLL CALL:

YEAS: NONE.

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

ABSENT: NONE.

ABSTAIN: NONE.

MOTION FAILS

Chairperson Naik stated the findings do not support the motion for approval of the variance.

Member Resha asked if a resolution for the motion is needed.

Chairperson Naik replied no.

5.1 ZBA 02-07 Arbor Oaks

Item 5.1 of Old Business moved to follow Item 6.1 New Business.

Tom Meagher, attorney representing the Township, stated he felt it was appropriate to come before the ZBA to discuss why they reconsidered this recently. He said the Board should make it clear why they voted as they did and what the record does say. He said this would make the Boards decision clear to anyone who reviews the minutes, without having to review the transcripts. He said once the lawsuit was filed in 2003, Judge Conner’s ordered the matter be sent back here and reopened to bring in new evidence. He added this was done. He mentioned reports were generated and findings were made, and another public hearing was held. He said the petitioner had the opportunity to provide more information, and they did. He said the Board voted on a motion that essentially said what extent the petitioner should be able to vary the particular aspects of the Ordinance as it applies to his property. He added that the ultimate vote on a 3 to 2 basis was 0%, and no variance would be granted.

1. Meagher said when he reviewed the vote and the materials submitted, he did not feel that the Board had made their decision clear. He mentioned Judge Conners stated the Board should make it clear how the decision was made. He said before he goes before the Judge again he would like to be able to explain the decision, and allow the Judge to review it. He said he and Zoning Administrator Spencer prepared a report by pulling together information from the record that accurately reflected the Boards decision. He said this report was presented to Mr. Jacobs on May 6, 2004, so Mr. Jacobs could respond with any concerns he might have. He said that he had spoken with Mr. Jacobs since that time, and Mr. Jacobs had not voiced any objections to this report. He said he feels this report is accurate and comprehensive. He said he would like to know the Board’s opinion on the report, and if the Board feels any (additional) information should be included. He said he wants the Judge to know that the Board made their decision based on a lot of work and the materials presented, and they did not make their decision by pulling it out of mid-air. He added that is why we are meeting tonight. He said he will leave it to the Board to decide if the petitioner can speak tonight. He suggested the Board make a motion to adopt the (drafted) decision as the findings that were made, to support the vote. He said the Board could also change the information based on their discussions. He said he would like to be able to take this to the Judge and show him what he asked for was done.

Member Brostrom asked if the minutes of the three (3) previous hearings will be supplied to the Judge.

1. Meagher stated all of the minutes will be supplied as part of the record. He said the record will also include the transcripts of those meetings. He said although this is part of the record, it may or may not be part of the Judge’s ultimate decision. He said the exact document and statements will be for himself and Mr. Jacobs to discuss and bring to the Judge.

Member Brostrom stated he was reviewing the minutes and they need work. He then asked Mr. Meagher what the deadline will be for the completion of the minutes, in a finished form.

1. Meagher stated if the minutes have not been approved it is “fair game”. He said the Board should do what they normally do when they review minutes. He said the Board cannot create minutes just to satisfy the Judge. He said when he reviewed the minutes the Board did not make it clear whether they were for or against the proposal.

Member Resha asked if the Board did not make it clear on an individual basis.

1. Meagher stated the vote was clear, although how the Board got to the vote was not clear.

Member Resha stated the Board got to their decisions based on the discussions, the evidence presented, and the rebuttals. He said he based his decision on what was presented.

1. Meagher stated that when reviewing the information presented it is clear why the Board came to their decisions. He said it will be useful to walk through the findings tonight. He said he is not suggesting the Board go back to square one.

Member Grosshans stated the issue was to either keep the site at one acre lots or put 126 units on the site. He said there was no in between. He said Mr. Jacobs brought in “big shooters” who could not answer basic questions about why well and septic could not be installed. He said Mr. Jacobs was determined to get tied into the (utility) systems because he had water and sewer in front of the property. He asked why the people who did the test borings were not at the meetings. He added there were people at the meetings interpreting the test borings. He said Mr. Jacobs needed to prove he could not do the one acre lots, and he failed to do so. He said so much money and time has been spent fighting this decision, when this site could have been constructed and the petitioner would have saved money.

Member Resha stated the ZBA does not have the right to allow people to connect to the Township’s water and sewer. He added this is the responsibility of the Township trustees. He said he asked the petitioner if they had the County Health Department at the site when the test borings were done, because the Health Department had particular ways they do things. He said the final approval or disapproval is the responsibility of the Health Department. He said if the petitioner was interested in getting this done, he would have had the proper people viewing the test borings. He said he asked Mr. Jacobs if the 60 acre property is all useable. He said there have been statements that the property is flat with no vegetation, but there are wetlands on the site. He then asked Zoning Administrator Spencer if the wetlands on this site are regulated.

Zoning Administrator Spencer replied yes, the wetlands are regulated by the Township.

1. Meagher stated he brought this back before the Board because Judge Conners stated it is not enough to say it is a black-and-white issue and that the applicant cannot have it. He said the Judge wants to know why they cannot have it. He said it is worthwhile to show the Judge why the Board made their decisions based on the findings. He said the reasons of the Board need to be put into one document.

Member Resha asked how this is going to be conducted.

1. Meagher stated he is going to answer the Board’s questions. He again said his suggestion is that the Board accept the findings (in the proposed decision) with or without changes.

Member Brostrom stated he has read Mr. Meagher’s document and he feels it is a good summary of the issues that were central to the discussions. He said the only problem he found was in the final motion. He said the person who made the motion and the person who seconded the motion are reversed. He said the motion was made by himself, and seconded by Member Resha.

Zoning Administrator Spencer stated that after he reviewed the proposed decision, he saw that the majority of the information was already in the previous motion, that was put together by Mr. Bruce Laidlaw. He added that Mr. Meagher just added more detail to the facts.

1. Meagher stated he brought to the record things that have been seen over and over again. He said he saw that there was a specific reason the Board made the motion they did, although the reason was not identified.

Member Stagg stated this report was presented as Mr. Meagher’s summary of what the Board did. She asked if the Board agrees that this report (proposed decision) encompasses the major points of the discussions, then the Board can support this report and it is over.

1. Meagher stated it is not over. He said if the Board reads the report and finds parts they feel are not accurate, then they need to discuss it, and either change it or add to it.

Zoning Administrator Spencer asked if the Board should put a motion on the floor first, and then read through all the paragraphs of the report.

1. Meagher stated the Board can read this report line by line if they choose to.

Chairperson Naik asked Mr. Meagher if he had the transcripts and the minutes when he put this report together.

1. Meagher stated he was given the transcripts by Mr. Laidlaw. He said in this transcript there were presentations by Mr. Jacobs.

Chairperson Naik stated they went through the findings and made the motion at the last meeting March 29, 2004.

Zoning Administrator Spencer stated there were transcripts from March 22, 2004.

Chairperson Naik stated the minutes of March 29, 2004 show that the Board did the findings and made the motion. He said the Board members had different opinions on each finding. He said he would like to look at the transcript before he says which Board member voted for what.

Zoning Administrator Spencer stated when the Board goes through each finding tonight they can agree that this is the way they voted.

1. Meagher stated when he put this report together he knew that not every Board member agreed on each finding. He said the report shows that the finding that supports the ultimate resolution is set forth in the document. He said this report shows to the Judge that this is the basis for the Board making this decision.

Chairperson Naik asked what the time frame is on reviewing the findings.

1. Meagher stated people are entitled to a decision if not now, very soon. He said the special meetings are called so they do not have to wait a month.

Chairperson Naik stated that since this is going to court, the Board should be very sure about their individual decisions. He said he is not in favor of reading through the findings again. He said the report presented by Mr. Meagher provides a good summary of the findings.

Member Stagg stated she received the report in her packet, and she received no other information stating the weight of the report. She said she would like to read through Mr. Meaghers report again and have the Board come back in a week for another meeting to discuss it.

Zoning Administrator Spencer stated if the Board read through the information now, they may find the information comes back to them. He said the Evidence part of the report is very similar to what was said at the meeting of March 29, 2004. He said after the Board reads through the report they may think of something they would like to include.

Chairperson Naik again stated this is going to court and the Board should not take it lightly.

Member Resha stated this has not been taken lightly.

Chairperson Naik stated he is not excited to go over the findings again, although he believes it should be done. He said he wants the Board to be consistent and accurate.

Zoning Administrator Spencer stated the Board is not being asked to re-review the whole record.

1. Meagher stated after the discussion the Board can either make a motion or postpone until they have had time to review the information. He said he wants to make sure the Boards decision is accurately set forth.

Member Resha stated this is the same information in a different format.

Motion by Member Grosshans, supported by Member Stagg, to review the document regarding the use variance for ZBA 02-07 Arbor Oaks, as presented by Foster, Swift, Collins and Smith finding by finding this evening.

ROLL CALL:

YEAS: RESHA, GROSSHANS, STAGG, BROSTROM

NAYS: NAIK

ABSENT: NONE

ABSTAIN: NONE

MOTION CARRIED

Member Grosshans read the first paragraph of the document.

1. Meagher stated since the document will be incorporated into the minutes, the Board can read the information to themselves, and then review it together.

Member Brostrom stated the members should read the document to themselves and then go through it together.

The Members read through the document to themselves.

Member Resha stated paragraph one does not fully describe that sewer and water is outside the area for this property. He said it should be added that the petitioner did not go to the Township to request sewer and water.

1. Meagher stated the Members should read the entire document and then they can address their concerns.

Member Grosshans stated he would like to review the last paragraph on page 3 regarding the soil conditions. He said when the evidence was presented, the petitioner had incomplete test borings, and there was information missing on the test borings. He said when the test borings were given to the Board again at the next meeting; they still had missing information from certain levels. He said the people who did the test borings were not at the meeting to explain what they found. He said there were people interpreting what was done. He said the evidence on whether the ground would perk or not, was incomplete. He said a statement was made that the land has no slope, although the land has slope. He said he would like these issues added to the findings.

Zoning Administrator Spencer asked Member Grosshans if he felt it would be more appropriate for the sentence to read that “staff presented evidence to show the petitioner had not adequately tested, and the Board found it was incomplete.”

Member Brostrom stated this paragraph is lacking information.

Member Grosshans stated the main issue was whether or not the ground would perk. He said the test findings only went down fifteen (15) feet, when the County could go down to twenty (20) feet. He said if someone is trying to prove that they cannot build on this land, they should have the tests go down to twenty (20) feet. He said the petitioner failed to do so. He said he was one of the members that voted for this, because there should have been a compromise in between.

Member Brostrom stated he has minor issues on the last paragraph of page 3. He said it should be more specific and say the developments are one acre lots.

Zoning Administrator Spencer stated those lots were not presented as one acre lots. He said they were presented close to one acre lots. He said the total acreage and units are accurate.

Member Brostrom stated he would like to have something added about the approximate size of the lots.

Zoning Administrator Spencer stated he has a copy of Mr. Haussler’s letter if the Board would like to review it.

Chairperson Naik stated the second paragraph from the bottom where it states “Although asked to do so, the petitioner did not present evidence to show at what point the density would be sufficient to achieve a fair rate of return. Petitioner did agree, however that, it had the burden to show the property cannot be practically developed under the current zoning, or as that use is varied by the ZBA.” He then asked Mr. Meagher what he is trying to say.

1. Meagher stated this says the petitioner agreed that it had the burden to show the property could not be practically developed under the current zoning. He said he is trying to convey that, nor as it varied some way other than the request of the variance. He said the last line can be taken out and the sentence can end at “current zoning”.

Chairperson Naik stated he does not want to just strike the last sentence because there was some sort of compromise. He said on the next page, first paragraph, “the petitioners attorney asserted that R-1A zoning district regulations did not permit the development using public sewers, but other Township Ordinances require the Township to provide sewer service to the property,” he also stated “a request had not been made to the Township for sewer services for the property and because the request has not been a review has been undertaken to this date.” He stated this was said by Zoning Administrator Spencer.

1. Meagher stated they could put a period after “property”. He said the next sentence could start with “because.” He said if it is more accurate, they could put “The Township staff stated.”

Member Grosshans stated the second sentence should read “the Township staff stated.”

Chairperson Naik asked what the members think about page 3.

Member Grosshans stated there was discussion on doing a PUD. He said Stonebridge and Lake Forest are examples of this. He said this should be added to the document.

Chairperson Naik stated the petitioner did have the burden to show the property cannot be practically developed under this current zoning. He said there were discussions and the specific zonings discussed were R-1A and R-1B and nothing in between. He said R-1A is proposed by the ZBA.

Member Grosshans asked if the alternative of a PUD should be put into the document.

Zoning Administrator Spencer stated it was discussed that it was not an issue before the ZBA to discuss a PUD.

Chairperson Naik asked if this is irrelevant.

Zoning Administrator Spencer stated they can look in the transcripts to see exactly what was said. He said he is sure Mr. Jacobs agreed that it was their burden to show that the land could not practically be developed with the current zoning, or as that use is varied by the ZBA.

Member Grosshans stated it could say “unless varied by the ZBA.”

Zoning Administrator Spencer stated the meaning of the sentence is that it cannot be developed as it is, or that it would be the petitioner’s burden to say they need a 10% variance to make it profitable. He said the sentence could be dropped.

1. Meagher stated he is hearing the sentence should state, “There are alternatives to planned proposed density discussed although the petitioner did not present the evidence.”

Member Resha stated he remembers one alternative being discussed that was blatantly ignored.

Member Grosshans stated there were alternatives to making it a site condominium development.

Member Stagg stated there are a few grammatical errors with this paragraph. She said the word practically is misspelled “practicably.”

1. Meagher stated this is a word, and it is lawyer lingo.

Member Stagg stated where it says, “The petitioner did agree that it” she said this should read “The petitioner did agree that he.”

1. Meagher stated the petitioner in his understanding is not an individual.

Member Brostrom stated on page 4, in the paragraph that starts “March 15, 2004” should there be a reference that this study was done in connection with the new Comprehensive Plan.

Member Resha stated in the next paragraph that is stated.

Member Brostrom stated he did not see that, and it may be adequate. He said the build out study was done in connection with the development of that plan, which triggered the rezoning.

Member Grosshans stated the comment Member Brostrom made should be added.

1. Meagher asked if it should read, “This information had also been relied upon during the Comprehensive Plan review process.”

Member Brostrom stated he wants it to be clear, this was the plan that triggered the rezoning.

Member Grosshans stated it should be clear because a third party may not pick up [on that point].

Chairperson Naik asked if the Board wanted to go through each finding one at a time.

The Members agreed they should go through each finding one at a time.

Member Grosshans asked Mr. Meagher to explain the first finding of the document.

1. Meagher stated it is stating that the petitioner did not submit evidence to show that the property could not be used under the current zoning. He said additional information was presented to the ZBA by different sources that was to the contrary.

Member Resha asked if something should be put in there to show the information was presented from a different source. He said the sentence sounds now like the petitioner is presenting evidence on both sides of the case.

Member Brostrom stated they should insert “Township staff.”

1. Meagher stated it should say “The Township staff presented additional evidence to the ZBA to the contrary.”

Member Stagg asked if they are changing “Township” to “ZBA.”

Member Brostrom stated in the same sentence the word “instead” could be eliminated.

Chairperson Naik asked if the votes of the members for each finding should be repeated.

1. Meagher stated he has no problem with this. He said a poll based on the findings is an accurate part of the minutes.

Chairperson Naik stated there are differences in the votes.

1. Meagher stated the language used in the decision is not the same as in the motion. He said he gives the findings in his language, and these are his suggestions. He cautioned the members about the language not being exactly the same. He said it would be appropriate to use a roll call and if the minutes accurately have the views of the minutes that is fine.

Chairperson Naik asked Mr. Robert Jacobs if he had any comments.

1. Robert Jacobs, representing Arbor Oaks, stated he is not commenting on the action taken tonight or on the minutes or resolutions. He said Mr. Meagher was kind enough to send him a draft of the document given to the Board. He said it is not his function to comment on the accuracy.

Chairperson Naik read finding number one and said this is what the Board said and this is what it says in front of them.

1. Meagher stated he agrees completely.

Chairperson Naik read through the findings:

Findings:

To conclude that a property owner has established unnecessary hardship, a zoning board of appeals must find on the basis of substantial evidence that:

1. The property cannot reasonably be used in a manner consistent with existing zoning.

2. Meagher reviewed with the members how they voted on this findings during the last meeting.

Yes: Brostrom, Stagg, Resha No: Grosshans, Naik

1. Meagher stated that the three Members that voted yes, voted that the petitioner has failed to submit substantial evidence that the property cannot reasonably be used in a manner consistent with existing zoning. He said that members Brostrom, Stagg and Resha agreed with this statement and members Grosshans and Naik did not agree with this statement.

The Members agreed with the statement made by Mr. Meagher.

1. The landowner’s plight is due to unique circumstances and not to general conditions in the neighborhood that may reflect the unreasonableness of the zoning.

2. Meagher stated that four (4) of the members voted no on this finding, and one member voted yes. He then asked the members if this is correct.

The Members stated this was correct.

Member Grosshans asked if number two in the minutes (of March 29, 2004) stating that “the landowners plight is due to unique circumstances”, and what is presented in Mr. Meagher’s report is the same thing.

1. Meagher stated the minutes say that the petitioner has to come forward to make this shown, and what he has in the findings is that the petitioner has failed to submit the evidence.

Member Grosshans asked if just one member agreed that the petitioner failed.

1. Meagher stated no. He said four (4) members agreed that the petitioner failed to submit the evidence.

2. The use authorized by the variance will alter the essential character of a locality.

3. Meagher stated the minutes show that four (4) members agreed that the petitioner failed to present evidence to show that if the use was authorized it would not alter the intent character of the locality. He then asked the Members if this is correct.

The Members stated this was correct.

1. The hardship is the result of the applicant’s own actions.

Member Grosshans asked Mr. Meagher to explain the word apparently in the second line.

1. Meagher stated it is his understanding the petitioners did go to someone in the Township trying to determine whether or not the property would be within the sewer and water service area. He said apparently because he is not in the position to say this happened.

Member Brostrom stated in the same sentence the third line down where it states “and would so in the future” he said the word remain should be put in so the sentence reads “and would remain so in the future”. He said in the next sentence a comma should be put after the statement “in this regard” show it reads “in this regard,”.

Member Grosshans asked if after the comma the rest of the sentence is needed at all.

Member Brostrom stated a semicolon could be placed there and the rest of the sentence could be removed.

Member Grosshans asked if the Members are being judgmental by saying that “a sophisticated and experienced developer represented by counsel.”

1. Meagher stated the sentence could end with the word regard.

Chairperson Naik stated he agrees with this. He then asked if the next sentence “Petitioner should have done so” could also be taken out.

Member Grosshans stated instead of the word “should” in the sentence it could be “could.” He said this was defiantly discussed.

Member Brostrom asked if it could read “Petitioner could not have done so.”

Member Stagg stated asked if Chairperson Naik was suggesting deleting the whole last sentence.

Chairperson Naik stated he is suggesting deleting “Petitioner should have done so.” Member Grosshans then read the whole paragraph with the corrections.

Member Brostrom suggested getting rid of the first comma after “Had Petitioner done so.”

Member Stagg asked if they decided to get rid of the word “apparently.”

The Members agreed to delete the word apparently.

Member Grosshans stated the last paragraph of page 6 stands.

Member Brostrom asked if in the third line on page 6 where it says “Petitioner’s involvement with property” the word the should be inserted to read “Petitioner’s involvement with the property.”

1. Meagher stated yes. He said this was bad grammar.

Member Brostrom asked if on the last line on page 6 it should read “Comprehensive Plan” instead of “Master Plan.”

The Members agreed to make this change.

1. Meagher stated finding number four ended with the Comprehensive Plan. He said the next page is the findings of all the factors.

Zoning Administrator Spencer asked if the members wanted to vote on this finding like on the previous one.

Chairperson Naik stated Brostrom, Stagg and Resha voted yes on finding number four and Grosshans and Naik voted no.

1. Meagher stated he wanted to make clear that finding number 3, on the issue of whether the use authorized would alter the intent of the character of the locality, four (4) members stated it would alter the essential character. He then asked if on finding number 4, on the issue of whether the hardship is the result of the petitioner, all five (5) members voted it was the result of the petitioners actions.

Chairperson Naik replied no.

1. Meagher stated in the minutes on page 31, everyone agreed it was correct.

The Members agreed with this comment.

1. Jacobs stated he was not given a copy of the draft minutes and asked if one could be supplied to him.

Chairperson Naik gave Mr. Jacobs a draft copy of the minutes of March 29, 2004.

1. Meagher asked for clarification on the sentence added to page four, which started “this information had.”

Member Stagg stated the sentence should read “This information had also been relied on in the Comprehensive Plan review process.”

Chairperson Naik stated they were moving on to page seven in Mr. Meagher’s report. He then read the paragraph on page seven.

Zoning Administrator Spencer stated it would be correct to add an “s” to “in the report(s) of.” He said this is because he submitted more than one report.

Chairperson Naik continued to read the paragraph on page seven.

Member Grosshans stated the motion was made by Member Brostrom and supported by Member Resha and this should be changed from “Motion made by member Resha and seconded by member Brostrom” on page seven.

Member Resha asked if voting 0% increase in the lot size, widths and depth, if this [variance] automatically failed.

Zoning Administrator Spencer replied yes.

1. Meagher then reviewed the changes that were made by the members.

Page Three – the word “sated” was replaced by “stated.” In the second from the last paragraph, the end of the last sentence where it states “or as that use is varied by the ZBA” was removed.

Page Four – six (6) lines from the top, “He also” was removed and replaced with “Township staff.” At then end of the next paragraph the sentence was changed to “This information had also been relied on in the Comprehensive Plan review process.”

Member Stagg stated on Pager 4, first paragraph, fourth line, there is a period added after “property” and the new sentence starts with “And because.”

Member Grosshans stated the sentence should not start with “and because” he said those two words should be striked and the sentence should start “The request.”

1. Meagher read the paragraph with the corrections. He then inserted “and” between “made and no.”

2. Meagher continued reviewing the corrections.

Page Five – Take out the word “although” at the beginning of the sentence. After the word “regard” put a period and start the new sentence “Township Staff presented.” Then strike the word “presented,” and the words “Township was” and replace with “ZBA.” Five lines down on page five the word “instead” is deleted.

Member Grosshans asked if the votes made by the Members are being inserted after the findings.

1. Meagher stated he would write them down at this time.

Member Grosshans stated for Mr. Meagher what the votes were for each finding.

Finding Number 1 – Three to two (Brostrom, Stagg, Resha voted yes, Grosshans, Naik voted no). Finding Number 2 – One to four (Grosshans voted yes, Brostrom Stagg, Resha, Naik voted no). Finding Number 3 – Four to one (Brostrom, Stagg, Grosshans, Resha voted yes, Naik voted no).

Zoning Administrator Spencer stated on finding number 2 four members voted that they failed to submit and the petitioners plight is not unique.

1. Meagher stated on finding number 2 Member Grosshans voted that yes the petitioner’s plight is due to unique circumstances.

2. Meagher stated some content was eliminated under number 4 on page 6. He then read how the paragraph should read.

Chairperson Naik stated the word “the” is added and “Master Plan” should be changed to “Comprehensive Plan.”

1. Meagher continued with page seven and stated an “s” should be added to the word “report.” He said the motion needs to be changed to read that Member Brostrom made the motion and it was supported by Member Resha.

Member Grosshans stated he has three sentences he would like to add to page number 3. He stated he would like to add “ The petitioner provided incomplete test borings and missing information on the test borings. The people who did the test borings were not present to provide answers to the ZBA’s questions. Contrary to the Petitioner statement, the property does have slope.”

Zoning Administrator Spencer stated the tentative site plan did show slope but a relatively small amount of slope.

Member Grosshans stated this was a contentious issue for him.

Member Resha stated when this was brought up the Members all discussed it and they were given the wrong paperwork at one point.

Zoning Administrator Spencer asked if the Members agreed this should be added.

The Members agreed with these sentences being added.

Member Grosshans stated this could be added at the beginning of the first sentence on page 4 after the part where it says “wells and septic tanks.” He then re-read his proposed sentences.

1. Meagher stated having gone through the minutes tonight the minutes are quite thorough. He said the decision reflects what is in the minutes. He said the Members should consider making a motion to adopt the decision as the findings based on the minutes and the discussion tonight.

Motion by Member Grosshans, supported by Member Resha, to move in the matter of Arbor Oaks LLC ZBA 02-07 in the decision of the Zoning Board of Appeals on the use variance application that we approve the findings as revised tonight.

ROLL CALL:

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

NAYS: NONE.

ABSENT: NONE.

ABSTAIN: NONE.

MOTION CARRIED

7.0 Zoning Administrator’s Report

None.

8.0 Member's Report

The Members discussed holding a meeting on May 17, 2004.

The Members all agreed to hold a meeting on May 17, 2004 at 5:30 p.m.

9.0 Secretary’s Report

None.

10.0 Chairperson’s Report

11.0 Approval of Prior Minutes

11.1 Minutes of February 25, 2004

11.2 Minutes of March 22, 2004

11.3 Minutes of March 29, 2004

Motion by Member Resha, supported by Member Grosshans, to postpone the minutes until they are revised.

MOTION CARRIED

12.0 Adjournment

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

MOTION CARRIED

Chairperson Naik adjourned the meeting at 9:39 p.m.

____________________________________________________________________ s/Alayna Stagg, Secretary May 24, 2004