REGULAR MEETING September 27, 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, and Kenneth Brostrom.
Members Absent: None.
Others Present: Linda Diane Feldt, Doug Trudeau, Kathleen Garon, Joy Shannon, Tracey Samples, 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 6:35 p.m. A quorum was present.
2.0 Approval of Agenda
Motion by Member Resha, supported by Member Brostrom, to approve the agenda, as presented.
MOTION CARRIED
3.0 Communications and Announcements
None.
4.0 Items from the Floor
None.
5.0 Old Business
None.
6.0 New Business
6.1 ZBA #04-07 Kathleen Garon
(submitted for appeal of Zoning Administrator’s decision)
Zoning Administrator Mark Spencer stated that this is a petition to appeal his decision regarding massage therapy services at 2900 Golfside Road. He said the Zoning Ordinance states that this is an appropriate use only in the C-2 (General) Commercial district unless the service is provided by a licensed physician, chiropractor, osteopath, physical therapist, a licensed nurse, or is located in a barbershop or beauty shop, which offers massages to the scalp, face, neck, or shoulders only. He said personal services, manicures, pedicures, and facial massages are not permitted in an O-1 district. He said the definition in the Zoning Ordinance for an “adult physical culture establishment” states, “…any establishment which offers massages, body rubs, or similar treatments by any person.” He said this would not include a licensed operator of electrolysis treatment, continuing instruction in performing arts, organized athletic activity, hospitals, nursing homes, medical clinics, or medical offices.
Zoning Administrator Spencer stated that in a C-1 commercial district a permitted use is personal services, including barbershops, beauty salons, and medical and dental clinics. He said that in a C-2 district a conditional use is an adult physical culture establishment. He said in the Office District permitted uses are administrative offices such as financial institutions, advertising, real estate, etc., but do not include personal services such as hair salons, barber shops, and music instruction studios. He said that based on the Ordinance he decided that this use was a personal service, and it is an adult physical culture establishment, and neither are permitted in an O-1 district.
Member Grosshans asked if an “adult physical culture establishment” would be a massage parlor.
Zoning Administrator Spencer replied yes. He stated there is specific language (in the Ordinance) regarding massages with the exception of head, face, scalp, and above the shoulder massages. He said the Planning Commission has addressed this issue in the past and found that this type of use would require a controlled use permit. He said Section 56.13 of the Zoning Ordinance does not state that the Township would prohibit an “adult physical culture establishment” in a C-2 district if it meets the criteria of the Ordinance.
Member Stagg stated that massage therapy does not fit in with (controlled uses in Section 56.13 of the Ordinance such as) adult motion pictures theaters, and adult supply stores.
Zoning Administrator Spencer stated the extra step in the Ordinance was added (for Controlled Uses) to help prevent problems. He said the Ordinance does not address degrees of massage therapy.
Member Stagg stated massage therapy is different from a massage parlor.
Chairperson Naik opened the public hearing.
Kathleen Garon, applicant, stated house bill #5233 was submitted November 4, 2003, for the licensing of massage therapy. She said that no massage therapist in the State of Michigan is currently licensed. She said that thirty-three (33) states have accepted them into the medical field. She said the minimum requirement to be licensed is 500 hours of training.
Member Grosshans asked what type of training is required.
Ms. Garon stated the training is for massage therapy and the schools are licensed. She added there used to be a training school in Pittsfield Township. She said she has a license from the City of Livonia.
Member Resha asked if any other cities provide this licensing.
Ms. Garon stated she is not sure. She said to receive licensure she had to prove that she had 500 or more hours of training.
Member Brostrom asked what the State licensing requirements would be under this bill.
Ms. Garon stated that 500 hours of training through a State licensed school would be required. She added there is also an exam.
Member Brostrom asked if there is a specific state examination done after the training is completed.
Ms. Garon stated that currently people can take the national certification exam, and they would be exempt from taking the state test. She said she has not taken that test. She then explained the schooling she has taken. She added that to take the national certification test a person has to prove that they have 500 hours of training. She said these hours include hands-on massage, discussions, tests, and class hours. She added that one of her classes was for geriatric massage and it taught her how to work with the skin of older individuals.
Member Grosshans asked Ms. Garon if she receives referrals from doctors.
Ms. Garon replied yes. She said that she works with children and adults. She said there are CST codes for reimbursement from insurance companies for massage therapy. She added that this puts them in the medical field. She said there are IRS tax deductions for massage therapy. She said there is a house bill #5124 for massage therapy, and a bill #5233 regarding adult entertainment. She said those bills are for two different issues. She said she represents massage therapy and not adult entertainment. She said the Township’s laws are unconstitutional, and massage therapists are being discriminated against.
Member Brostrom asked Ms. Garon if there is a distinction between what she does and a medical massage therapist.
Ms. Garon stated that there is additional training for medical massage therapy. She said they conduct the same types of massage, and they receive referrals from doctors. She said they use medical software to accept insurance billing. She said therapists work in many fields such as reflexology, and stretching. She said this is a viable and legitimate field. She said she worked at 2020 Hogback as a massage therapist and it is zoned O-1. She said Zoning Administrator Spencer stated she would have to work with a licensed doctor or chiropractor. She added that 72% of the businesses at the Hogback business center do not work with a licensed doctor or chiropractor.
Member Brostrom asked Ms. Garon if she has contacts with doctors in the Ann Arbor area and if they would be referring patients to her.
Ms. Garon replied yes. She then read a letter from Brian J. Polidori, a dentist in Dearborn, expressing his respect for her as a health care provider.
Member Grosshans asked how many office spaces there are at 2900 Golfside.
Nageeb Doma, owner, stated there are nine (9) office spaces.
Ms. Garon stated there are OBGYNs, doctors, and dentists in this office complex. She said that personal services are not allowed in this zoning district and this is why she was disapproved. She said the IRS definition of personal services is, “Its principle activity is performing personal services. Personal services are those performed in the field of accounting, actuarial science, architecture, consulting, engineering, health including veterinary services, law, and performing arts.”
Member Brostrom asked Ms. Garon if she had signed her lease without checking the zoning.
Ms. Garon replied yes. She said she worked in the same zoning before and did not think this would be an issue. She said she tried to receive her cosmetology license and the zoning issue arose, so she then went to get the zoning clearance. She said that the cosmetology license would be for pedicures, facials, and manicures. She said she asked Zoning Administrator Spencer if she took out the facials, manicures, and pedicures would the clearance be approved and he stated it would still be denied.
Member Stagg stated that in the AARP magazine it said that 21% of Americans have had a massage in the past year, and this shows it is mainstream.
Member Brostrom stated that massage therapy is a legitimate field. However, he said that if this variance were allowed it could set a precedent.
Chairperson Naik asked Ms. Garon what signage would be on the building if the variance was approved.
Ms. Garon stated the sign would say Synergy for Wellness.
The Members, staff, and Ms. Garon discussed the non-conforming businesses located on Hogback.
Member Brostrom asked Ms. Garon if she would have partners in her business.
Ms. Garon stated she would be the sole owner with other massage therapists working for her.
Member Brostrom asked if they would have similar levels of training.
Ms. Garon replied yes.
Linda Diane Feldt, massage therapist for over thirty (30) years, stated this (referring to Ms. Garon’s zoning issues) is the nightmare of massage therapy, and nation-wide this is something everyone (in the industry) deals with. She said they are not prostitutes. She said she had a private practice out of her home in Ann Arbor for over 20 years. She said massage is one of the most recognized and most used alternative medicine therapies. She said the University of Michigan asked her if she would allow observers to come to her home and observe her practice. She added that she had hosted two medical students that afternoon.
Chairperson Naik asked Ms. Feldt if the students were observing her or receiving the massage.
Ms. Feldt stated that the students were observing. She said the Township Ordinance allows them to grant this variance under Section 56.13 – D which states, that location provisions should be waived if it is not contrary to the provisions of the Ordinance, if they are not going to encourage a skid-row strip, if they do not interfere with the development of the improvements plan, and if federal and state laws are followed. She said the Township has a poorly written Ordinance. She said it (Section 56.13) states that they (massage therapists) are engaged in a use which, “is an impediment to stable growth and development because of their disruptive and deleterious effect on adjacent properties, especially when constructed near residential zones.” She said they are professional and this is not an acceptable law for them.
Chairperson Naik stated the ZBA does not have the authority to change the Ordinance. He added that this would be changed by the Township Board.
Ms. Feldt stated that it is not common for a massage therapist to be under the jurisdiction of a licensed doctor.
The Members and Ms. Feldt discussed her certification.
Joy Shannon, massage therapist, stated she has been a massage therapist full-time since 1986. She said she was trained in 1979. She said they have liability insurance provided by their professional organization. She said to belong to the organization they have to take a written and practical test.
Member Grosshans asked if they are tested by the insurance company.
Ms. Shannon replied no. She said they are tested by the professional organization.
Member Grosshans asked Ms. Shannon if a person wanted to get insurance would they have to be certified by the national association.
Ms. Shannon stated she belongs to the American Massage Therapy Association and she had to test with them. She said that when she first started everything was referred by a doctor.
Kyle Rose stated he is a patient of Ms. Garon. He said his mother had severe back problems and Ms. Garon helped her. He said he fell and hurt three disks in his back and the doctors wanted to fuse the three disks together. He said he did not get this done, and Ms. Garon has helped him with his back problems. He added that his wife recently had their third child and she went to Ms. Garon for maternity massage. He said Ms. Garon’s services have been life changing for his whole family.
Member Grosshans asked Mr. Rose if his doctor referred him to Ms. Garon.
Mr. Rose replied yes.
Nageeb Doma, owner of 2500 Golfside Road, stated that he had to cancel Ms. Garon’s lease because of the obstacles she had with the Township. He said after Ms. Garon was gone two physicians in the offices asked why she had left. He added that the physicians stated that they needed her services.
Member Brostrom asked Mr. Doma if he feels that her business would have a deleterious impact on the environment.
Mr. Doma stated that all of the doctors spoke highly of the business and they were very pleased.
Tracy Samples, resident of Valley Ranch, stated that she has been a massage therapist since 1988. She said she is a member of the American Massage Therapy Association. She said she was here to help redefine and open up the possibilities of changing the Ordinance. She added that she will be going to a national convention in Nashville and there are 40,000 members in her association. She said this problem (referring to the Zoning Ordinance) is a nightmare and they will continue fighting these issues.
Doug Trudeau, resident, stated he has been practicing massage since 1989. He said people in the massage profession have many of the same credentials that are required by states that offer licensing. He said he is concerned because he has a business in this area and he did not know about the Ordinance.
The Members and Mr. Trudeau discussed the location and zoning of his business.
Motion by Member Resha, supported by Member Stagg, to close the public hearing.
MOTION CARRIED
Zoning Administrator Spencer stated that if the zoning decision was overturned, it could have implications in the whole Township because he would have to allow massage services in all office districts. He said the Township would have enforcement problems unless the ordinance was changed. He said this is not a site variance request, which would require a different petition from the applicant. He said if this type of variance was granted without definitions or criteria it could cause problems. He said this use is not banned from the Township because it is allowed in the C-2 commercial district. He said the massage industry has done a good job over the years to come up with certification programs that bring creditability to the field. He said a recommendation could be given (from the ZBA) to the Township Board stating that the Ordinance needs to be updated.
The members and staff discussed the meaning of a site variance.
Zoning Administrator Spencer stated that a site variance would mean that this business at 2900 Golfside Road would be allowed to practice massage therapy.
Member Brostrom asked Ms. Garon if she had looked for another location for her business.
Ms. Garon replied no. She said she has her heart was set on this location, and she would like to work closely with the current residents leasing in the building that are in the medical field.
Member Resha asked Ms. Garon if she would consider requesting a site variance for the property.
Ms. Garon replied yes.
The members and staff discussed the possibility of a site variance.
Zoning Administrator Spencer stated that if the ZBA rules against his decision, they should be ready to provide a full set of guidelines. He said that if the Ordinance is going to be changed it requires professionals, research, and reports.
Member Grosshans asked Ms. Garon what the requirements are to get into the massage therapy association.
Ms. Garon stated she is a member of ABMP (Associated Bodywork and Massage Professionals) and it requires 500 hours of training at a licensed school and testing through the school.
Zoning Administrator Spencer asked if the testing has to be done before a person can join the organization.
Ms. Garon stated a person can become a member of the organization as a student at the school without taking the final exam. She said that they have to be insured for hands-on work with clients.
Member Resha asked if the insurance comes through the association?
Ms. Garon replied yes.
Zoning Administrator Spencer asked how long the school has been in existence.
Ms. Garon stated the Michigan School of Mild Myomassology was created in 1993 in Southfield, and in May of 1997, it was renamed the Michigan Institute of Mild Myomassology.
Zoning Administrator Spencer asked if any colleges or universities offer the training programs.
Ms. Garon replied yes.
An audience member stated Oakland Community College and Lansing Community College offer this training.
Motion by Member Resha, supported by Member Brostrom, to accept the Zoning Administrator’s decision and have the Zoning Administrator look into the verbiage of the Ordinance to better define massage therapy.
Discussion:
The members and staff discussed the motion and the grandfathering of a use.
Zoning Administrator Spencer stated in regard to the motion that it would be best to have a recommendation to staff, the Planning Commission, or the Township Board to review the Ordinance.
Member Resha withdrew the second section of the above motion.
Member Brostrom stated the ZBA had not shut the door on the applicant because she can either apply for a site variance or move to another location.
Amended Motion:
Motion by Member Resha, supported by Member Brostrom, to accept the Zoning Administrator’s decision.
Discussion:
Member Stagg stated she would like the second motion to reinterpret this.
Member Resha called the question.
ROLL CALL:
YES: RESHA, GROSSHANS, BROSTROM, NAIK
NO: STAGG
ABSENT: NONE
ABSTAIN: NONE
MOTION PASSES
Member Stagg stated that the spirit of the Ordinance is to have professional people in the O-1 district. She said she does feel massage therapy is a profession and it has changed. She said they receive liability insurance, certification from schools, and in 37 states they can be state certified. She added that 21% of the people in the United States have had massages in the past year. She said citizens here tonight have recommended Ms. Garon’s business. She said the controlled uses in Section 56.13 do not fit into the same category as massage therapy.
Motion by Member Brostrom, supported by Member Resha, that the ZBA recommends the Planning Commission and the Township Board explore the Zoning Ordinance related to massage therapy, for possible revision.
MOTION CARRIED
7.0 Zoning Administrator’s Report
None.
8.0 Member's Report
Member Grosshans asked Zoning Administrator Spencer about the status of the one lane drive off Fosdick. He said a half lane was supposed to be installed and it has not been.
Zoning Administrator Spencer stated that a building permit would not be issued until the driveway improvements are complete.
The members and staff discussed this issue.
The Members and Zoning Administrator Spencer discussed the status of the Rosewood ZBA case and the turn-lane requirements for the Eastern Washtenaw Multi-Cultural Academy school.
Member Resha asked Zoning Administrator Spencer about the development of the Issa property located on Washtenaw Avenue.
Zoning Administrator Spencer stated that they never officially applied for anything.
9.0 Secretary’s Report
None.
10.0 Chairperson’s Report
None.
11.0 Approval of Prior Minutes
11.1 Minutes of July 7, 2004
11.2 Minutes of July 19, 2004
11.3 Minutes of July 20, 2004
11.4 Minutes of August 23, 2004
11.5 Minutes of September 13, 2004
The members reviewed the minutes and made corrections.
Motion by Member Resha, supported by Member Brostrom, to approve the minutes of July 7, 2004, July 19, 2004, July 20, 2004, and August 23, 2004, as corrected.
MOTION CARRIED
12.0 Adjournment
Motion by Member Resha, supported by Member Brostrom, to adjourn the meeting.
MOTION CARRIED
Chairperson Naik adjourned the meeting at 9:06 p.m.
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s/Alayna Stagg, Secretary November 22, 2004
