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Zoning Board of Appeals - MINUTES - 1/26/2006 ZONING BOARD OF APPEALS MINUTES CITY OF MUSKEGO JANUARY 26, 2006 Meeting was called to order at 7:07 P.M PRESENT: Chairman Dan Schepp, Vice Chairman Schneiker, Mr. Horst Schmidt, Mr. William Le Doux, Mr. Richard Ristow and Associate Planner Adam Trzebiatowski. EXCUSED: Dr. Barb Blumenfield, Dr. Russ Kashian STATEMENT OF PUBLIC NOTICE: The Secretary stated the meeting was noticed on January 20, 2006 in accordance with Open Meeting Laws. NEW BUSINESS: APPEAL #08-2005 Petitioner: Michael Birkley, W144 S7931 Durham Dr/Tax Key No. 2213.984. REQUESTING under the direction of Chapter 17 Zoning Ordinance: Section 3.08(1) Appeal Provisions, Petitioner seeks the following variance: Chapter 17- Zoning Ordinance: Section 6.03 Conditional Uses (1)A. Appeal Required: Uses listed as permitted by conditional grant may be permitted in the district in which listed upon petition for such grant to the Plan Commission and subject to the approval of the Plan Commission and to such other conditions as hereinafter designated. A conditional use grant was denied for the above-mentioned property on September 6, 2005, for the operation of a Tree Service/Landscape business. The petitioner is seeking an appeal regarding the Plan Commission denial of the Conditional Use Grant. Mr. Schneiker swore in Michael Birkley, Attorney Richard Zaffiro and Associate Planner Adam Trzebiatowski. Attorney Zaffiro gave some history on Mr. Birkley’s appeal. The issue began July 5, 2005, when a Conditional Use Grant and Building, Site and Operation approvals were applied for and paid for by Mr. Birkley. Problems of woodpiles and vehicles parked on the property were investigated by the City. Since th Dec. 8 some progress has been made on the woodpile and parking. Mr. Birkley is continuing to look for a suitable place to move his business. A potential property in the Town of Norway fell through last week. Attorney Zaffiro stated he is encouraging Mr. Birkley to continue to work with seller. Mr. Birkley stated he is actively pursuing a new location also. He will be meeting with a potential seller on Saturday. The location is a little father away than he would like to go but he is willing to consider it. Mr. Birkley submitted a map showing the businesses that surround his property. Mr. Birkley stated there is an apartment building, Linda’s Place Bar, Schultz Gun Club, Hunters Nest and a storage facility all near his property. Mr. Zaffiro stated the core of Mr. Birkley’s business is not the woodpile. He could move that to another location. The core of the business is to go to places and do work. There were complaints on Mr. Birkley’s business at the public hearing to remove the OHS zoning. Neighbors complained of trucks running up and down the road. Attorney Zaffiro stated these trucks leave in the morning and don’t come back till the end of the day. Mr. Birkley only comes and goes twice a day because he goes to the customer’s location. The other businesses around Mr. Birkley have customers coming and going. Mr. Birkley feels the neighbor that owns the apartment building only complained because her two sons own the same type of landscape business. Other neighbors do not have a problem. Attorney Zaffiro questioned the due process notice rights regarding the denial of Mr. Birkley’s business while other businesses surround his. Mr. Le Doux questioned if the Conditional Use Grant was permissible under the existing zoning at the time of application. Attorney Zaffiro stated yes, under the existing zoning at the time, the Conditional Use Grant was permissible. The code changed three weeks later. ZBA Minutes 1/26/2006 Page 2 Mr. Le Doux questioned the dates of the application process by Mr. Birkley. Attorney Zaffiro stated on July 5, 2005 Mr. Birkley applied for a Building, Site and Operation. On July 25, 2005, the application for the Conditional Use Grant was submitted. Mr. Trzebiatowski explained Ald. Madden requested rezoning based on a few residents who wanted to do additions with OHS (highway service overlay) overlay and because of the zoning they could not. Adam Trzebiatowski stated on July 26, 2005, the zoning was changed by the City. Notification went out a few weeks prior and at this time no one was approved to be running a business in the area. If there were, the property would not have been rezoned. Mr. Schneiker questioned Mr. Birkley if there was a contingency on the property when it was purchased in order to obtain proper approvals. Attorney Zaffiro stated Mr. Birkley relied on verbal assurance by Plan Department staff. Mr. Birkley stated he was told he would not have a problem getting the Conditional Use Grant. Mr. Birkley sent a letter to Director Muenkel confirming the understandings in writing. Mr. Birkley questioned staff at the time of the Board of Appeals submittal what the deadline date was. Staff stated 20 days. Mr. Birkley submitted past the deadline. Mr. Trzebiatowski stated staff must accept an appeal even if it is submitted after the deadline. Attorney Zaffiro stated local time schedules do not over ride constitutional questions. Attorney Zaffiro stated Mr. Birkley has three options: running the business at this site, without woodpiles and trucks within setback of the ordinance, work with other municipalities to move the business or the third option is to go to court. Attorney Zaffiro is requesting a limited period of time to continue to look for another property. Mr. Schmidt questioned how much more time the petitioner is asking for. Attorney Zaffiro stated March or April should be sufficient. Mr. Le Doux questioned if the business is currently up and running. Mr. Birkley asked what is considered up and running. Mr. Birkley also questioned if he answers that is he going to hang himself. Attorney Zaffiro stated in winter months there is not much business until spring. Mr. Birkley is not going to and from locations, but is still cutting wood to get rid of the piles. Mr. Trzebiatowski stated this item was deferred at the last two Zoning Board of Appeals meetings due to the requested adjournment/deferral from the appellant and his attorney. The attorney stated at the last meeting they were not going to ask for any additional adjournments/deferrals. Due to this, action should be taken at the January 26, 2006 Zoning Board of Appeals meeting. No new information has been received at this time. The appellant’s attorney did submit a letter to the City and the Alderman of the applicable Aldermanic District. The letter attempted to get an agreement in place to give Mr. Birkley time to explore his options. The City and the Alderman both agreed that plenty of time has been given and the issues at hand must come to an immediate end. No agreement was worked out. Based upon the facts, the City Staff representative respectfully requests denial of this appeal allowing the reconsideration of a Conditional Use grant denied by the Planning Commission on September 6, 2005. Since the required submittal time frame has elapsed and because the Planning Commission determinations regarding Conditional Use grants cannot be appealed, the appeal should be denied. Mr. Trzebiatowski further stated this appeal is not taking into consideration the storage of the logs or the trucks parked on the property. Those issues are being handled through citations. Reasons for the denial from Plan Commission and the Public Hearing were concerns by residents related to noise of sawing equipment. Staff did meet with Mr. Birkley and staff will never ensure anything, only give the best professional opinion and suggestions. Mr. Trzebiatowski stated he was not aware of the location of the logs. Prior to moving to this site the business has not been approved and should not be and never have been operating on this property. Staff will give options to appeal and give the petitioner a packet of information explaining the process and deadlines. Staff is recommending denial because the Zoning Code states certain decisions by the Plan Commission cannot be appealed, Conditional Use Grant being one of those. The zoning for a business to be allowed ZBA Minutes 1/26/2006 Page 3 on this property is not in place and a Building Site and Operation Plan was denied and the Conditional Use Grant was denied. Mr. Trzebiatowski referenced the map Mr. Birkley submitted. Linda’s Place and Hunters Nest are both in the OLR Zoning district which allows lakeshore recreation such as cottages and taverns. The apartment building is nonconforming and was built prior to the zoning code. The storage business on the west side of Durham is in the OOS overlay and can be used only for storage, businesses cannot be run out of the storage units with the current zoning. The Board discussed the timeline of submittals and determination by the Plan Commission. Mr. Birkley bought the property in August of 2004. Prior to that, he had discussions with the Plan Department staff about operating the business on this property. He stated he was under the understanding it was ok to operate the business in 2004. One year later Mr. Birkley came before the Plan Department to obtain proper approvals. July 19, 2005, Plan Commission approved the removal of the business zoning including Mr. Birkley’s property. July 26, 2005, Common Council also approved the removal of the business zoning. Mr. Trzebiatowski noted the Public Hearing for the removal of the zoning was scheduled and published within the requirements for meeting notices. Mr. Schneiker questioned if Mr. Birkley received the paperwork for a Conditional Use Grant, Building Site and Operation and Zoning Board of Appeals. Mr. Birkley stated he did receive the paperwork. Mr. Schmidt questioned Mr. Birkley if between the time the property was purchased and the zoning change in 2005 were you actively trying to get proper approvals. Mr. Birkley stated for the Building Site and Operation approval he thought he needed building plans for the structure he was going to build on the property. Mr. Birkley stated he was trying to get different quotes for an architect. Mr. Trzebiatowski stated Mr. Birkley did not need the building plans for the structure to apply for Building Site and Operation approval, which is stated in the paperwork. Mr. Trzebiatowski noted the RS-2/OHS zoning was only located in a small triangle on the front corner of the property and the use is only allowed with an approved Conditional Use Grant and Building Site and Operation Plan. The zoning has been removed. Mr. Trzebiatowski stated if the zoning had never been removed and Mr. Birkley went through the Public Hearing and received all approvals necessary, he could have operated a business on this property if the Plan Commission thought it was an appropriate use for the area and would have granted the Building Site and Operation and Conditional Use Grant approvals. Mr. Birkley stated he has also started the process of working with the City to divide lots off of the property. APPEAL #01-2006 Petitioner: Luis and Amy Ceballos, S73 W14270 Woods Road/Tax Key No. 2201.090. REQUESTING: Under the direction on Chapter 17 Zoning Ordinance: Section 3.08(1) Appeal Provisions, Petitioner seeks the following variance: Chapter 17-Zoning Ordinance: Section 4.05 – Accessory Structures (1)(A) Any accessory use or structure shall conform to the applicable regulations of the district in which it is located except as specifically otherwise provided. Chapter 17 – Section 4.05(2)(B)(2) states that accessory structures can consume up to 2% of a parcels total area (2,637 square feet on this parcel). The appellant currently has a 2,188 square foot accessory structure and is proposing to build an additional 1,160 square foot accessory structure. The appellant is requesting to have two accessory structures totaling 3,348 square feet and is therefore requesting a 711 square foot variance from the Code requirement. Vice Chairman Schneiker swore in Luis and Amy Ceballos, Bob Harvey of S73 W14275 Woods Rd, Ald. Pat Patterson and Associate Planner Trzebiatowski. Mrs. Ceballos explained there is no garage on the property. The house is the original farmhouse. There is a barn on the property, but it is not possible to park cars in the barn because of the way it is built. The ZBA Minutes 1/26/2006 Page 4 only place they could attach a garage to the house would be in the rear and they would have to take down three big trees. Mrs. Ceballos is requesting the additional accessory building to park the cars inside. Mr. Ceballos stated he and his son are restoring an old car and would like to do this in the garage. When they worked on it in the driveway the Police Department gave them a ticket for unlicensed vehicle. They usually keep the car in the back in fenced in area. Mrs. Ceballos stated the garage will match the house and have the same roofline as the house. Mr. Schepp asked if they considered attaching the garage to the back of the house. Mrs. Ceballos stated they would lose to many windows if they went off the back of the house. The location of the well would also make it hard to put an addition off the back of the house. The driveway would be installed right over the well. Mrs. Ceballo stated the location of the well is also a hardship on the property. Mr. Harvey who lives across the street stated he supports the additional garage on the Ceballo’s property. Ald. Patterson stated he supports the zoning ordinance and also believes the citizens should be listened too. Ald. Patterson spoke with the neighbors and none have concerns with the second accessory structure on the property. Mr. Trzebiatowski gave the City’s opinion based on the Zoning Code. The petitioner already has an accessory structure that is 2188 square feet. This means the petitioner can already construct an additional 449 square foot accessory structure on their property without a variance. Most residents within the City are not allowed near the total square footage that this property is allowed by right. Being a large property, this lot is allowed a larger total square footage of accessory structures than other smaller properties. Second accessory structures require approval from the Planning Department. This item did receive approvals from the Planning Commission on December 12, 2005. Their approval was subject to the demonstration of an appropriate hardship and approval by the Zoning Board of Appeals. When calculating the allowed square footage of accessory structures, there are three ways to calculate the maximum square footage allowed on a property. The Planning Department will look at each way of calculation and use the highest square footage found. The three ways to determine allowed square footage is as follows: 720 square feet, 60% of the house size or 2% of the total lot size. In this case of the petitioner, the best calculation is when taking 2% of the total lot area. The Planning Commission also stated that if the variance is granted, the garage could only be used to house personal vehicles and restore old vehicles. There are other options for more storage space on this property. An additional accessory structure totaling 449 square feet is allowed on this property that would not require a variance. There is also the option of attaching a garage to the house. The petitioner has stated their hardship would be removing trees and covering windows if the garage were attached to the rear of the house. Staff is recommending denial of this appeal, allowing a second accessory structure that would bring the total square foot of both structures to 3348 square feet, requiring a 711 square foot variance, citing that the variances does not preserve the intent of the Zoning Ordinance because there are not exceptional conditions applying to the parcel that do not apply to other properties. Also, a non-self imposed hardship is not found for the appeal. DELIBERATIONS: APPEAL 08-2005 – Mr. Schmidt moved to defer until the regular meeting of April 2006. Mr. Ristow seconded. Mr. Le Doux supports deferring the appeal in the chance Mr. Birkley could relocate his business. Mr. Schneiker stated with or without deferral of this appeal the business should not be operating on this property, as the zoning is not in place. Upon a roll call vote appeal 08-2005 is deferred 5-0. During deliberations Mr. Birkley returned with the letter written to Jeff Muenkel dated April 17, 2005. The Board requested this be added to the appeal. ZBA Minutes 1/26/2006 Page 5 The Board requested Plan Commission minutes, Council minutes and Public Hearing minutes related to Mr. Birkley’s appeal for the April Board of Appeals meeting. APPEAL 01-2006 – Mr. Schmidt moved to approve the appeal as submitted. Seconded by Mr. Schneiker. Mr. Horst stated the location of the well is a hardship to attach the garage to the house. Mr. Schepp noted the lot is one of the bigger lots in this area and the neighbors and the Alderman of the district have stated they support the additional accessory building. Upon a roll call vote appeal 01-2006 is approved 5-0. APPROVAL OF THE MINUTES: Mr. Schmidt moved to approve the minutes of December 8, 2005. Seconded by Mr. Le Doux. Motion carried 5-0. MISCELLANEOUS: None. ADJOURNMENT: With no further business to come before this Board, Mr. Schmidt moved to adjourn. Mr. Le Doux seconded. Upon voice vote, meeting adjourned at 9:26 PM. Respectfully Submitted, Kellie Renk, Recording Secretary