REGULAR MEETING September 13, 2004 6:30 P.M.
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PITTSFIELD TOWNSHIP ZONING BOARD OF APPEALS MINUTES
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Members Present: Edward Resha, Robert Grosshans, Ishwar Naik, Alayna Stagg, Kenneth Brostrom.
Members Absent: None.
Others Present: Robert Jacobs, John Norton, Jim Pryce, Craig Welch, Marry Dwyer, Steven Cortese, Mary Cortese, Diane Ringwelski, Jon White, Assistant Planner Paul Montagno, Zoning Administrator Mark Spencer, and Recording Secretary Laura Ford.
1.0 Call Meeting to Order/Determination of a Quorum
Chairperson Naik called the meeting to order at 6:36 p.m. A quorum was present.
2.0 Approval of Agenda
Motion by Member Grosshans, supported by Member Resha, to approve the agenda, as presented.
MOTION CARRIED
3.0 Communications and Announcements
None.
4.0 Items from the Floor
None.
5.0 Old Business
5.1 ZBA 04-03 Fairwood Green
[submitted for use variance]
Chairperson Naik stated Jeffery Fulton (the owner of Hickory Woods) is here to speak tonight. He added that Mr. Fulton needs to leave for a meeting so the other members should ask their questions at this time.
Member Grosshans stated during the first meeting many of the residents did not understand Mr. Fulton’s financial restraints. He asked Mr. Fulton if play (at the course) has picked up since that time.
Jeff Fulton, owner of Hickory Woods Golf Course, stated the numbers are about the same. He added that he has taken another job, and this is helping, although he is still behind on what he owes.
Member Grosshans stated the amount of money Mr. Fulton was using to advertise was not a great amount. He asked Mr. Fulton to explain this.
Mr. Fulton stated he believes it is. He said advertising on cable television costs him $5,000 a year. He mentioned he also advertised through the Ypsilanti Courier, and on the radio. He said he had to decide how much he could spend and if he was getting anything out of the money. He added there are not many golf courses that advertise on television, and he thought that this could be his niche.
Member Grosshans asked if there is a restaurant at the course.
Mr. Fulton replied no. He stated they sell sandwiches, chips, and pop.
Member Stagg asked if this generates income.
Mr. Fulton replied not really. He said he use to make money from selling golf balls, although these can now be bought cheaper at places like Kmart. He said he makes little profit selling sandwiches and pop.
Member Stagg stated if they (the golf balls) are selling at Kmart it proves the interest (in golfing) is there.
Mr. Fulton stated people are playing, but not like they were ten (10) years ago. He said the people who played at his course ten (10) years ago are now golfing at bigger and better courses. He said other golf courses are having trouble too.
Member Grosshans stated the owner of Hickory Sticks said that leagues are the “bread and butter” of his business. He asked Mr. Fulton if his course offers leagues.
Mr. Fulton replied yes, Monday through Thursday. He said if it rains on a league day, the golfers do not play, and he loses a day. He said the players are moving up, and he is losing them to places like Pine View in Ypsilanti Township.
Member Resha referenced the financial data supplied by Mr. Jacobs, and stated that over the past five (5) years, four (4) of those years were in the negative. He asked Mr. Fulton if he tried to market (the property) for anything other than a golf course.
Mr. Fulton replied no. He said there is no money in things like cross-country skiing. He said he once offered snowmobiling but this caused trouble with the neighbors. He said he cannot think of another way to market the property other than as a golf course.
Member Stagg asked Mr. Fulton if he consulted with someone else for their ideas.
Mr. Fulton replied no.
Chairperson Naik asked Mr. Fulton if he is charging $15 for golf.
Mr. Fulton replied yes. He said this is for eighteen (18) holes with a cart.
Chairperson Naik asked Mr. Fulton if he ever increased the prices.
Mr. Fulton replied yes, but it only hurt the business. He said if his prices get too close to his competitors’ prices, the golfers will play at the other course because it is eighteen (18) holes and only costs two (2) dollars more.
Chairperson Naik asked how long the prices were raised.
Mr. Fulton stated one (1) season.
Member Resha stated there are many other recreational uses such as water parks, or skating rinks that are permitted.
Mr. Fulton stated he has not looked into these because it is a nine (9) hole golf course.
Member Resha stated this land can be used for other things.
Mr. Fulton stated he does not have any money, and he owes taxes to the IRS. He added he put $15,000 dollars of his own money into this (course) last year.
Member Resha stated Mr. Fulton could have marketed this property to a company that would build another recreational use.
Member Brostrom asked Mr. Fulton if he offers memberships.
Mr. Fulton replied yes.
Member Brostrom asked if funds could be solicited from the members to help improve the course.
Mr. Fulton stated if all of the members chipped in $100 it would not be enough to do anything.
Member Brostrom stated he is surprised that Mr. Fulton did not try to sell the course. He said it could be sold to someone who wants to use it for recreation.
Mr. Fulton stated he has offered (to sell) the land in the past. He said he offered it to the Township. He said he would have liked them (the Township) to buy it fifteen (15) years ago. He said this is his retirement, and he wanted to run it and someday sell it. He said this course was an investment, and he thought it would only go four (4) or five (5) years. He said he cannot afford the course.
Member Grosshans asked what the Township said when he offered the course.
Mr. Fulton stated in 1984 they (the Township) was interested but could not receive the grants they needed. He said the next time he offered the property the Township was not interested. He said certain (Township) officials have known since 2000 that this was his plan.
Member Stagg stated her friends heard that the course would be selling, and they moved their league to a different course.
Mr. Fulton stated people have known he was going to sell the course. He said the leagues left when they found out he was going to sell the course. He added he could not tell the leagues to stay at the course because he did not know if he would be there.
Member Stagg stated Mr. Fulton has said that there were people in the Ashford Village subdivision that he wrote off and would not distribute flyers to, because he had problems with them cutting down the trees and mowing the rough. She asked Mr. Fulton if he has changed his mind about this.
Mr. Fulton stated there is a lot of history with Ashford Village, and it is not pretty. He said he has had many problems with the developer. He said it never got to the point where he shunned the people in Ashford Village. He said the residents bought property next to the course and they should have known it was there.
Member Stagg stated at a previous meeting the residents were surprised that memberships are offered.
Mr. Fulton stated memberships are a small amount of the business he does.
Member Stagg asked Mr. Fulton if his mortgage payment is it still over $4,000 a month.
Mr. Fulton stated the golf course has been here since 1963, and he bought it in 1980 as a limited partnership. He said through the years he has bought out the seven (7) limited partners, and then he bought out the general partners. He said he now owns the majority of the course, although there are still three (3) limited partners left. He said the mortgage helped him to buy out the general partners. He said the bank said the golf course was the collateral. He said the mortgage has rolled over a few times, and he has borrowed more from it.
Member Brostrom asked Mr. Fulton if his first attempt to sell the course to the Township was in 1984.
Mr. Fulton replied yes.
Member Brostrom asked when the second attempt to sell the course was made.
Mr. Fulton stated in 2000. He said he did not go to the Township directly, but he did put the word out that the course was available through a friend at the Parks and Recreation Department.
Member Brostrom asked Mr. Fulton if he offered the course to a realtor or just to other parties.
Mr. Fulton stated he did not offer the course to anyone. He said in the past he has received phone calls, approximately five (5) a month, from realtors who wanted the land, and he use to blow them off. He said when it got to the point where he had to (sell the course) he started to listen (to the callers) and that is what brings him here today.
Zoning Administrator Spencer asked Mr. Fulton what type of capital expenditures he put into the golf course since he purchased it. He asked if there was any effort to renovate or add new features to the golf course.
Mr. Fulton stated that when he purchased the course twenty-four (24) years ago, the grass for the tee area, the fairway, and the rough was all cut the same height. He added the course looked like a wheat field. He said when he purchased the course he made it look like a real golf course. He said to improve the course through the years he has bought three (3) fairway mowers, which cost between $25,000 to $30,000 dollars. He said the green mowers cost him $20,000. He said he had to buy this equipment to make the course look nice. He said he had sand traps added at one point but these slowed down the play and he took them out. He mentioned extending the pond around the second hole.
Zoning Administrator Spencer asked Mr. Fulton if he ever thought of developing a renovation plan, or adding additional features. He said many businesses invest more money into their business to make it grow.
Mr. Fulton stated they extended the fourth hole approximately five (5) years ago. He said when he is not making money there is not a lot of money for him to deal with. He said it is a forty-eight (48) acre nine (9) hole course with eight (8) acres of woods. He added that he could have lengthened various holes but he did not want to affect the woods.
Zoning Administrator Spencer asked Mr. Fulton if he considered having additional investors to help bring in a clubhouse with dining.
Mr. Fulton stated no, because he did not want the liability of having a liquor license. He felt allowing drinking on the course would cause additional problems. He said even if there was a nice restaurant at the course he is not sure if people would want to come there for dinner. He added that a pavilion was built for the golf outings.
Member Grosshans stated that Stonebridge Golf Course tried to have a restaurant on the course and it did not work. He said they are catering for events at the facility now.
Mr. Fulton stated his course gets the golfers that are new to the game. He said those people want to play nine (9) holes and be on their way.
Zoning Administrator Spencer asked Mr. Fulton if he listed the course for sale with a realtor.
Mr. Fulton replied no.
Chairperson Naik stated the ZBA has heard from staff, the applicant, and the public (which included letters and emails) at previous meetings. He said the ZBA has received additional information as a result of their inquiries. He added that the most important information received was the financial data from the applicant. He said he would like Zoning Administrator Spencer and Mr. Robert Jacobs to comment on the new material presented.
Zoning Administrator Spencer stated the Board’s first order of business is to determine whether there is a hardship. He said the supplemental reports he provided are related to determining what level of relief would be needed.
Chairperson Naik asked Mr. Jacobs to comment on the new information presented.
Robert Jacobs, attorney for applicant, stated the ZBA can see from the financial data presented that the applicant has been in a dire situation for the past few years. He said there is a letter included in the information from Georgetown Country Club explaining the difficulty of operating a nine (9) hole golf course. He mentioned there is a letter from Phil Conlin that says he failed with a golf dome. He said Wexford builders supplied financial data stating that the property cannot be used as zoned. He said the experts and the realtors have stated that golf courses are failing.
Chairperson Naik asked if there are members in the audience that would like to comment.
John Norton, 4777 Sycamore Drive, stated he has tried to play the course since the first meeting and he cannot get onto the course. He said he would like to see information from Mr. Fulton regarding the money he took out of the mortgage to pay investors and odds and ends. He said when he bought his home he asked Mr. Fulton if he was going to sell the course. He said Mr. Fulton stated he would not sell the course in the next five (5) years, and now in the fifth (5th) year he is selling the course.
Steve Cortese, 4701 Sycamore Drive, stated Mr. Fulton discussed selling the course for retirement purposes. He said the Comprehensive Plan and the Recreation Plan are sufficient reasons to the Township to deny this request, and they should be part of the determination of hardship.
Chairperson Naik asked how the property is zoned.
Mr. Jacobs stated the zoning is RC (Recreation Conservation).
Chairperson Naik asked Mr. Jacobs if what he is proposing is a variance of the use.
Mr. Jacobs stated they are proposing that the site be used for single-family, and residential is a permitted use, although, because the degree of the use changes, it is called a use variance. He said they are asking for a use variance with the dimensional characteristics of the R-1B district.
Chairperson Naik asked Mr. Jacobs what the application, that he presented to the Planning Commission was for.
Mr. Jacobs stated the application was for a Planned Unit Development (PUD). He said this is not an appeal of the Planning Commission’s decision.
Chairperson Naik asked Mr. Jacobs if the result of the variance would change this site from an RC zoning to a residential zoning.
Mr. Jacobs replied yes, the practical effect of granting the variance would be for a residential use.
Member Brostrom stated that a residential use is allowed under the RC zoning with ten (10) acre lots. He asked Mr. Jacobs if it was his legal opinion that the ZBA has the power to grant the variance that is being asked for, which would provide the equivalent of the R-1B zoning.
Mr. Jacobs stated he has sent to the ZBA a letter and a copy of the Jansen vs. Holland Township case. He said there is no question that the ZBA has the power to grant this variance. He said the ZBA can grant a variance with conditions also. He said it was thought for some time that the ZBA did not have the ability to do this. He said it is unfortunate to put this burden upon the ZBA when they have not had to make decisions like this before. He said this is the difficulty with these types of cases today. He said the ZBA does have the power and the ability to grant this. He added they (the ZBA) could also grant approval of the site plan.
Member Brostrom stated his impression is that Mr. Jacobs is contending that the only reasonable use of the property would be the density of 2.5 dwelling units per acre.
Mr. Jacobs stated because of the market demand and the ability for a reasonable return on investment, the applicant feels this equivalent (density) would be appropriate, reasonable, and viable.
Jim Pryce, 5970 Cottonwood Drive, stated there was a gentleman that came through his neighborhood with a book that listed every golf course in the surrounding area. He said if you paid for a round of golf and a cart a friend could golf for free. He said there is also a credit card that is affiliated with restaurants and if you use it, you can receive free golf. He said Hickory Woods was not included. He mentioned golf courses in the Upper Peninsula were even honored with the card.
Member Grosshans asked Mr. Pryce if the golf course (Hickory Woods) is busy.
Mr. Pryce replied yes. He said he comes home around 3 p.m and the course is busy. He mentioned he used to be in a golf league with the Knights of Columbus that started at 2:30 p.m.
Chairperson Naik stated he was at the course on Friday at 3 p.m and there were four (4) teams there, and you were not rushed.
Mr. Jacobs stated a hardship does not have to affect everyone in the world. He said the hardship is in respect to this property and no other golf course.
Craig Welch, CEO of Wexford Homes, stated the lower rung golf courses are less desirable (to golfers) and they will not survive. He added that golfers will go to bigger courses with clubhouses and amenities. He said within the past five (5) to ten (10) years there have been more County owned golf courses. He said various businesses such as the water park south of US-23, and the skating rink in Dexter are not doing well. He said the Ice Cube in Ann Arbor is a privately owned business that is not doing extraordinarily well. He said it is hard to be a privately owned business and compete with the government owned facilities that do not have to worry about the return on capital. He said Mr. Fulton has lost approximately $100,000 over the past five (5) years. He said regarding Mr. Fulton not sending flyers to the neighboring community (Ashford Village), those residents knew about the course and if they went there they would have known about the memberships.
Member Stagg stated pizza places put out flyers to advertise their business and get people interested in the business.
Mr. Welch stated pizza places pass out flyers to attract people who do not know where their business is located. He said these residents are in close proximity to the course and they cannot argue that they did not know it is there. He asked if it would have changed the ZBA’s decision if Mr. Fulton would have sent flyers to the residents. He said they have submitted evidence from other golf course owners who stated that their revenues are declining. He said there is a lot of evidence that cannot be ignored.
Member Grosshans stated if the ZBA changed the zoning to R-1B it will not go back to RC.
Mr. Welch stated the zoning would be left as RC with a use variance. He said once homes are built the use will not go back to a golf course.
Member Grosshans stated this would be a major change in land usage.
Mr. Welch stated that Mr. Fulton has submitted to the ZBA tax returns that he has signed. He said it is unfair for the previous audience member to say that Mr. Fulton may be hiding income from the government. He said Mr. Fulton has operated the course since 1980, and he has not been before the ZBA for the past twenty-three (23) years. He mentioned that the Township was in a partnership to put youth programs at the course. He said Mr. Fulton has been running a good course. He said the cost to maintain this course is the same as it would be to maintain an eighteen (18) hole course with regard to purchasing equipment. He added that the market has changed.
Member Grosshans stated he agrees with Mr. Welch that Mr. Fulton is an outstanding person.
Member Resha stated he does not feel that Mr. Fulton is not an upstanding man. He said things that could have been done over the past five (5) years were not done. He said Mr. Fulton should have marketed the golf course or put it with a realtor. He said if Mr. Fulton would have marketed the property he would have had evidence in writing to present to the ZBA that the property was not usable for anything other than residential.
Motion by Member Resha to close the public hearing.
Diane Ringwelski, 4683 Ash Court, stated she knows six (6) people who live in Ashford Village that have joined the Washtenaw Country Club for its swimming pool. She said the applicant could have looked into this type of opportunity.
Member Resha agreed with Ms. Ringwelski. He stated there many things that the applicant could have looked into.
Member Grosshans agreed with Member Resha, and added that if a person does not have capital it ties a person’s hands as far as allowing them to build the use.
Member Resha added he is not stating that the applicant should build new facilities; the applicant should have remarketed the property for other recreational uses.
The Members and staff agreed that a motion was not needed because the hearing had not been reopened.
Member Resha withdrew his above motion.
Chairperson Naik stated he would like to receive the ZBA’s opinion on a few issues. He then listed the issues. 1. The end result of granting the variance is changing the zoning from RC to R-1B. 2. What authority does the ZBA have? He added that Mr. Laidlaw has provided a summary to the ZBA, which states what the Board can do. He then read from the letter, “Whether there are practical difficulties or unnecessary hardship 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 it’s rules or provisions so that the spirit of the Ordinance is observed, public safety secured, and substantial justice done.” He said if he stopped reading right there the ZBA does not have the authority, because the granting of the variance would change (the zoning) from RC to R-1B.
Chairperson Naik stated the ZBA members are appointed, and are not elected by the citizens of the Township. He added the ZBA does not have the staff or all the information needed to act as a Planning Commission. He said the ZBA’s previous meeting was a perfect example of what they can and cannot do. He said a house was purchased as a duplex home, and during the course of remodeling they found problems, and the Zoning Administrator indicated to the purchaser that this home was a single-family residence. He added that the purchaser invested a lot of money to improve the home. He said this is the spirit of the Ordinance that the ZBA is discussing. He said the members felt this was within their authority.
Chairperson Naik continued to read from Mr. Laidlaw’s letter stating, “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 herein, or permit any use expressly or by implication prohibited by the terms of this Ordinance in said district.”
Member Brostrom stated the Jansen decision altered what Chairperson Naik just read.
Member Stagg stated the letter (from Mr. Laidlaw) also stated, “However, based on the Jansen decision it is my opinion that the ZBA has the authority to consider that variance request.” She continued, “To conclude that a property owner has established unnecessary hardship the 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 the existing zoning. 2. 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. 3. The use authorized by the variance will not alter the essential character of a locality. 4. The hardship is not the result of the applicant’s own action.”
Member Brostrom stated in Mr. Laidlaw’s memorandum it referred to the Braun case, and it stated, “The burden of showing what is the minimum variance that is necessary to place the land in productive economic use within the zoning classification is the burden of the petitioner.” He said the first point that Member Stagg listed was that the property cannot reasonably be used in a manner consistent with the existing zoning. He said the R-1B zoning seems extreme and not in the spirit of the Ordinance. He said the ZBA has not received any solid evidence to show that it would be impossible to make money on the property within the existing zoning.
Member Resha stated (the ZBA has) no hard evidence other than people making statements, which is not evidence. He said the property was not marketed for anything other than residential, and it was not listed with a realtor.
Member Brostrom stated he does not believe that the ZBA is under an obligation to determine what is a reasonable use and what variance should be granted. He said the applicant has not met the burden in showing that it is impossible to find a reasonable use with the existing zoning.
Member Grosshans asked if Mr. Fulton had put the property up for sale with a realtor as RC (zoning), and the property was for sale for one (1) year with no buyers, would this constitute a hardship, and allow him to come back to the ZBA for R-1B (zoning).
Member Brostrom stated it would be a serious consideration.
Member Grosshans stated this would indicate there is a hardship, that the applicant cannot afford to improve the property, and there is no one interested in the property under the RC zoning.
Member Brostrom stated if it was marketed with no result, then this would be relevant.
Member Stagg stated the burden of the applicant is to show the minimal variance needed. She said this has not been done and it has not been researched thoroughly.
Chairperson Naik stated that granting this variance would increase the allowed density by 25 times.
Member Resha stated the ZBA does not have to give the applicant a variance of 2.5 dwelling units per acre, they can set the variance that they feel would make the property profitable. He said it would come down to what the applicant thinks is profitable and what the ZBA thinks is profitable.
Member Grosshans stated in regards to continuity of the area, the properties to the north and south of the course are 2.5 dwelling units per acre.
Member Resha stated there are other parts of the Township that do not have this continuity. He said as an example, if the ZBA takes forty-six (46) acres and says that one (1) house is allowed per acre, and the property is now zoned RC, that allows for lots of not less than ten (10) acres, this would be a substantial difference. He added this would be a buffer between the two subdivisions, and there would be less concrete and more open spaces.
Member Brostrom stated the property has been zoned RC for thirty (30) years, and it is zoned like this in the Comprehensive Plan. He said the ZBA has heard from neighbors who do not want to see the green space disappear. He said this is all relevant, considering that the ZBA does not have (from the applicant) enough information to determine the minimal variance needed to make the property profitable.
Member Stagg asked if the properties surrounding the golf course were zoned residential for the past thirty (30) years.
Zoning Administrator Spencer stated the properties were in the Comprehensive Plan for residential use. He said each property was rezoned from agricultural to PUD. He said they were not rezoned until there was an area plan submitted. He said this was done in the late (19)80’s and early (19)90’s.
Chairperson Naik called for a break at 7:54 p.m.
Chairperson Naik called the meeting back to order at 8:01 p.m.
Chairperson Naik read through the 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.
Member Resha stated he disagreed with the finding. He said Mr. Fulton has not marketed the property for anything other than residential, and it was not listed with a real estate company. He said the applicant has not provided evidence that the property cannot be reasonably used in any other manner (than that requested).
Member Grosshans stated if the applicant had put the property up for sale as RC and could not sell it under the RC zoning, then the applicant would have a hardship. He said the applicant has not put the property up for sale for an RC use, he has not marketed the property, thus he has not shown a hardship.
Member Brostrom stated he cannot say with certainty if there is a hardship. He said the applicant did not demonstrate this and it is his burden.
Member Grosshans agreed that the golf business is not doing as well and the applicant has been losing money. He said some other uses might have worked or someone with more capital may have made it work.
Member Stagg agreed with Member Grosshans.
Chairperson Naik asked what the Member’s felt about the applicant stating that he has been trying for the past few years (to make it) and has been losing (money).
Member Resha stated that Mr. Fulton has known what his finances have been for the past five (5) years. He said if Mr. Fulton had marketed the property under the present zoning, it would be substantial evidence that no one was interested in the property. He said Mr. Fulton has only submitted his finances to the ZBA. He said the zoning of the property should not be changed because he (the applicant) has not taken the time to market the property for something else.
Member Stagg stated it was news to her that Mr. Fulton bought the property as an investment, which he wanted to sell within five (5) years. She said the applicant should have tried sending flyers to the residents. She wishes the applicant would have tried to market the property under its current zoning.
Member Brostrom stated Mr. Fulton has said that he let it be known in 2000 that the land was available, and since that time he started losing money. Member Brostrom continued and said that in the last four (4) years very little was done, and the property was not marketed (for an RC use) either. He said there is no evidence to show that he tried to save the business.
Member Grosshans stated if he (personally) owned a business, he would need money for advertising.
Member Brostrom asked why Mr. Fulton did not market the property in 2000.
Member Resha stated Mr. Fulton has said that this (the golf course) was his retirement. He said a piece of property valued at $500,000 that he (the applicant) could get 2 million for (as 2.5 dwelling units per acre/residential), is his retirement. He said the applicant needed to go beyond his own retirement and market the property (for an approved use).
Chairperson Naik asked Member Resha if Mr. Fulton has the right to get the maximum (return from his property).
Member Resha stated the property was valued at approximately $500,000. He said if the applicant is receiving 2 million for it, this is his retirement money. He said the applicant would pay his bills and then keep the rest of the money. He said the applicant knew what he wanted to do, but he did not do what he should have done.
Chairperson Naik asked if the ZBA is not convinced that the property cannot be used in a reasonable manner consistent with the existing zoning because enough evidence was not provided.
Member Grosshans stated the applicant needs to show that this property cannot be marketed as RC and that it is not viable (as zoned).
Chairperson Naik asked the ZBA if it is possible to have something else (another use).
Member Resha replied yes, if the property was marketed correctly.
Member Brostrom agreed with Member Resha that there is a possibility that something else would be possible.
Member Grosshans stated Mr. Fulton has proved that the nine (9) hole golf course is not viable. He said it might be viable if there was a banquet facility and if the applicant had a liquor license, although the applicant needs more capital to do this. He said the course is important to the kids in the community.
Member Stagg stated she learned tonight that there were partners in this business at the beginning. She said the applicant bought them out (the partners) and this may have added to his current state by being almost a sole owner.
Member Brostrom asked for guidance from Mr. Bruce Laidlaw regarding a motion.
Bruce Laidlaw, Township attorney, stated the ZBA should make findings, and incorporate them into the motion. He said if the ZBA does not make findings then the court can send the case back and instruct the ZBA to make findings.
Motion by Member Grosshans, supported by Member Brostrom, that the property cannot be reasonably used in a manner consistent with the existing zoning.
Member Grosshans withdrew his motion.
The Members, staff, and the Township attorney discussed the need for a motion, and then continued with the findings.
Motion by Member Resha, supported by Member Brostrom, to grant ZBA #04-03 Fairwood Green variance as requested for the property between Crane and Munger Roads south of Michigan Avenue.
The Board then reviewed their findings:
1. The property cannot reasonably be used in a manner consistent with existing zoning.
Member Resha disagreed with the finding because the property has not been marketed during the past five (5) to ten (10) years, to find whether another use would work under the RC zoning.
Member Brostrom stated the Braun case indicated that the applicant has the burden to show the minimum variance necessary to place the land in productive use. He feels the burden was not met.
Chairperson Naik stated it is possible that there are other uses (for the property), although documentation showing this has not been provided.
Member Resha stated the landowner has not proved that this property could not be used for anything other (than residential).
Chairperson Naik stated that the property, in its present use, is not making a profit.
Member Grosshans stated the applicant could have shown the ZBA that the property could not be used under its current zoning by putting it up for sale, and if there were no buyers it would show that the applicant’s hands were tied.
Member Brostrom stated substantial efforts were made to demonstrate that other uses in RC were not viable, although the arguments were silly possibilities and no one could really consider uses such as kennels and farming. He said serious possibilities were not discussed by the applicant. He said the argument was tendentious.
Member Resha stated the property has been Recreation Conservation in the Comprehensive Plan and the area plan.
Chairperson Naik asked the Members if they agree that the property cannot be reasonably used in a manner consistent with the existing zoning.
YES: NONE
NO: RESHA, GROSSHANS, STAGG, BROSTROM, NAIK
2. 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.
Member Resha stated he does not feel there are unique circumstances. He said the plight is due to the landowner’s failure to do his due diligence. He said other variances in the area cannot be used as part of the findings.
Member Grosshans stated he does think the (landowner’s plight) is due to unique circumstances because if it was an eighteen (18) hole golf course the owner could generate more play. He said the owner is limited (with a nine (9) hole course) in his cliental. He said Rustic Glen was sold as a nine (9) hole course and it was made into an eighteen (18) hole course to generate more play. He said the owner is landlocked and cannot make the property into an eighteen (18) hole course.
Chairperson Naik stated before 2000 it (the golf course) was a good business. He said the fact that the business is not doing well is not only because it is a nine (9) hole course, but because there are many different courses in the area.
Member Resha stated the zoning of the property is recreation not golf course property. He said the owner’s plight is not necessarily due to the zoning of the property.
Member Brostrom agreed with Member Resha. He added that the important issue is whether the existing zoning is unreasonable.
Member Grosshans stated if the course was eighteen (18) holes he does not think the owner would be here.
Member Brostrom stated if the zoning was completely unreasonable, then the plight would be unique. He said the zoning has been in the Comprehensive Plan for a long time.
Member Resha stated it (the zoning) was not unreasonable until the owner wanted to sell it (the course) and retire.
Chairperson Naik asked the Members if they agreed that 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.
YES: GROSSHANS, NAIK
NO: RESHA, BROSTROM, STAGG
3. The use authorized by the variance will not alter the essential character of a locality.
Member Grosshans stated the current use is a golf course and next it would be a residential community, and it would alter the essential character of the locality.
Chairperson Naik stated there are residential homes to the north, south, and west of the property. He asked how changing the use would change the locality.
Member Grosshans stated there will be forty-eight (48) acres of recreational open space missing.
Chairperson Naik stated the essential character is residential area with open space in-between.
Member Brostrom stated the neighbors can be taken into account in this situation. He said they feel this will change the character of the neighborhood.
Chairperson Naik asked if the Members agreed that the use authorized by the variance will not alter the essential character of a locality.
YES: NONE.
NO: RESHA, GROSSHANS, STAGG, BROSTROM, NAIK
4. The hardship is not the result of the applicant’s own actions.
Member Grosshans agreed that the golfing industry is in dire straits. He said Mr. Fulton is a minnow in a sea of larger golf courses. He said Mr. Fulton has not marketed the property as RC and looked for bidders that would continue to run it as a golf course or marketed it for something else under the RC (zoning). He said Mr. Fulton feels he did what he should have done to market his property. He said the golf business is in trouble. He said the applicant has not tried to sell the property for an RC (zoning) use.
Member Brostrom stated he does not agree with the finding. He said the ZBA determined whether there was a hardship in their first finding.
Member Resha stated in some respects the plight is self-created and in some, it is not. He said he has to look at the fact that the property was not marketed (for an RC use). He said it (the plight) is self-created for the majority of the point.
Chairperson Naik stated he cannot really say that the applicant has created the hardship himself. He added the golf market is partly responsible for the hardship as it pertains to business. He said the applicant should have considered other options. He said he does not think this (the plight) is self-created, and the applicant has been victimized by market forces.
Member Stagg stated Mr. Fulton bought out his partners, and this is part of the reason he is in this situation. She said nine (9) hole courses are not the business to be in, but Mr. Fulton, in buying out other people (partners) helped create the situation, and he did not make much effort to sell the property as zoned.
Chairperson Naik asked if the Members agree that the hardship is not the result of the applicant’s own actions.
YES: GROSSHANS, NAIK
NO: RESHA, STAGG, BROSTROM
Chairperson Naik stated the majority of the votes for the four (4) findings were no. He said the member’s will now vote on the motion to grant the variance.
Member Resha called the question.
YES: NONE
NO: RESHA, GROSSHANS, STAGG, BROSTROM, NAIK
MOTION FAILS
Motion by Member Resha, to have staff draw a resolution with the information pertinent to the findings.
The Members did not feel this would be necessary.
Member Resha withdrew his motion.
6.0 New Business
None.
7.0 Zoning Administrator’s Report
None.
8.0 Member's Report
None.
9.0 Secretary’s Report
None.
10.0 Chairperson’s Report
None.
11.0 Approval of Prior Minutes
None.
12.0 Adjournment
Motion by Member Resha, supported by Member Grosshans, to adjourn the meeting.
MOTION CARRIED
Chairperson Naik adjourned the meeting at 9:08 p.m.
____________________________________________________________________
s/Alayna Stagg, Secretary October 11, 2004
