1000 Rochester Hills Dr
Rochester Hills, MI 48309
(248) 656-4600
Home Page: www.rochesterhills.org
|
|
|
|
|
|
|
Vice Chairperson Koluch called the Zoning Board of Appeals meeting to order at 7:00 p.m. Michigan time.
|
Deborah Brnabic, Jayson Graves, Kenneth Koluch, Charles Tischer, Jason Sakis, Marvie Neubauer and John Young
|
|
|
Chris McLeod, Planning Manager
Jennifer MacDonald, Recording Secretary
Vice Chairperson Koluch welcomed attendees to the April 10, 2024 Zoning Board of Appeals meeting. He noted that Bill Chalmers, previous Chairperson, elected not to seek reappointment as his scheduling kept coming into conflict with the meetings.
He welcomed John Young to the Board.
|
|
February 14, 2024 Zoning Board of Appeals Minutes
A motion was made by Neubauer, seconded by Brnabic, that this matter be Approved. The motion carried by the following vote:
|
|
|
|
None.
|
None.
|
|
PUBLIC HEARING - File No. PVAI2024-0003
Location: 484 Streamview Ct., located north of Walton Blvd. and west of Livernois Rd., Parcel No. 15-09-403-003, zoned R-3 One Family Residential
The applicant is requesting the following:
1. An appeal of the Building department’s determination that Sec. 138-5.100 Schedule of Regulations, which requires a 35 ft. rear yard setback in the R-3 district, is applicable to this lot. The applicant asserts that Sec. 138-5.101(O). Rear Yards Adjacent to Parks or Open Space and by reference Sec. 138-5.201 is applicable, which would allow the proposed covered rear porch to be constructed with a 30 ft. rear yard setback.
2. In addition to the appeal, the applicant has also made a separate request, for a 10 ft. variance from Sec. 138-5.100, the standard 35 ft. rear setback requirement within the R-3 District, which if granted would allow for the proposed covered rear porch to be constructed with a 25 ft. rear yard setback.
(Staff Report dated 4/4/24, Applicant's Letter and Application, Location Map, Plot Plan, Plans and Patio Roof Rendering, Warranty Deed, and Public Hearing Notice (corrected) had been placed on file and by reference became a part of the record thereof.)
Vice Chairperson Koluch introduced this item, and noted that there had been four separate emails that were received including communication from the applicant with signatures from their neighbors. He explained that this was an appeal of the Building Department's interpretation of the rear yard setback; and following that, a request for a variance. He invited the applicant forward and asked for the Staff Report.
Present for the applicant were Matt and Maggie Lerg, 484 Streamview Court.
Mr. McLeod noted that this is a two-pronged request, with the first being an appeal of the Building Department's interpretation of how a rear yard setback is applied to this parcel, particularly when it is adjacent to or abutting a dedicated open space, and particularly relative to an open space subdivision that was originally approved under the City's ordinances as such. The second request, once that determination of the appeal is made, is that the applicant is seeking to build a structure that would cover their rear patio at 25 feet from the rear property line. Depending upon the determination, it would either be a five- or 10-foot variance. If the appeal is denied, it would be a 10-foot variance. If the appeal is granted, it would be a five-foot variance because the appeal would allow for a 30-foot setback rather than a 35-foot setback, which is required for the district. He displayed an aerial photograph showing how the property sets relative to its neighbors.
He explained that there is an existing deck, or there has historically been a deck in this location. To Staff's understanding, the deck will be replaced with a patio and the structure will go over the top of that. What triggers the variance request is the fact that the overhang has columns that come down to the ground, triggering the rear yard setback requirement. He mentioned that it will be an
open-air structure with no walls, so no significant massing would occur as a part of this addition.
He pointed out that a 20-foot segment of the property line abuts the dedicated open space, and he explained how it technically abuts the side lot line of the property. He read from the Ordinance that the minimum rear yard setback requirement may be reduced to 30 feet on lots that border on land permanently dedicated for park, recreation and open space purposes. He explained that Planning Staff and the Building Department, when tasked with determining how the Ordinance applied to this situation, felt that since this is a side yard that abuts the open space, the intent of the provision was really to say that when there is no neighbor behind and it is common open space, there would not necessarily be an impact from a building coming closer to the property line. He noted that this determination triggered the denial of the structure in its proposed location.
Mr. McLeod stated that the purpose of the Board's first task is to determine whether that interpretation was correct. Once that is settled, the applicant has provided a secondary request that would then be triggered for either a five-foot or 10-foot variance to the rear yard setback adjacent to the single family structure's side yard that immediately abuts the subject property's rear yard. He stated that the Zoning Board of Appeals has the absolute right to reverse an administrative decision if it finds that it was erroneous based on material fact or abuse of discretion, or based upon erroneous interpretation of the Ordinance.
He noted that after that, either way, the applicant is still seeking relief from the Ordinance in terms of rear yard setback. He reviewed the five criteria that the Board must consider, and noted that the applicant provided responses to those in the application packet.
Vice Chairperson Koluch stated that the Board will discuss the interpretation first, and the variance request second, as one is dependent upon the other. He asked the applicant if he had anything beyond what Staff has presented specific to the interpretation.
Mr. Lerg explained that his wife actually grew up in this house, moving there in 1990 when she was in sixth grade. They purchased the house from her parents two years ago and have been doing a lot of work on the house since then. He thanked the City for its services, noting that they have been excellent in guiding them through the permitting process for their projects. He noted that the next phase in upgrading their home is the exterior work, and pointed out that they have since gotten new siding on the house, a new roof, and have taken down the old deck. He stated that they intend to install an exposed aggregate patio with a hot tub and the roof structure will give them some privacy.
He stated that there is some ambiguity in the interpretation of the code as it is written, which is why he met with Matt Wells from the Building Department. He stated that they feel that they meet the intent of backing up to or bordering the open space, and feel that their property is unique in how it is positioned to back up to a side yard and not a backyard. He commented that he would argue that it is less intrusive to back up to a side yard, as most people tend to congregate in
either the front or the back. He pointed out that the open space is a wooded lot behind their house.
Vice Chairperson Koluch noted that there are other sections of the Ordinance that do specifically address odd situations with corner lots, and knows of a few interpretations that they have done since he has been on the Board measuring a setback based on the average of houses in certain areas, but there is nothing he sees in the Ordinance that directly addresses this type of situation. He commented that he sees a whole lot of flexibility in the language.
Mr. Graves stated that he would concur that while there is some interesting wording choices that were selected for this final zoning, he would believe that if they looked at the Ordinance intent, it is in reference to open space directly behind and they are at that point not affecting a neighbor by intruding into the required rear yard setback.
Mr. Lerg responded that while he appreciates the viewpoint, he feels that because they back up to a side yard it is a lot less intrusive than if someone is going back-to-back. He pointed out that they are a corner lot and are well above the required side yard setback.
Mr. Graves stated that while he understands what Mr. Lerg is saying, the section cites rear yards adjacent to parks or open spaces, and this rear yard is not.
Mr. Lerg disagreed and stated that the rear yard definition in the back of the Zoning Ordinance states that the rear yard is defined as the whole back, including the rear lot line plus whatever the required setback is. He commented that it doesn't say that it has to abut the rear property line, it just mentions the rear yard.
Ms. Brnabic stated that their job is to interpret the Ordinance and then to rule or protect the integrity of the Ordinance and its true meaning. She commented that she agrees with the interpretation and determination of the Building Department that it does not meet the intent of the Ordinance for reducing the rear yard setback.
Mr. Sakis questioned a reference in the Ordinance to 100 feet in length and asked how it pertained to the subject property.
Mr. McLeod explained how the measurement was calculated and noted that the rear yard is anything behind the rear plane of the house extending the full width of the lot. He noted that the interpretation is necessary because the Ordinance did not anticipate a case of this nature where there is a sliver of property that abuts the open space. He reviewed various measurements, and noted that the Ordinance was trying to provide some flexibility, for instance if there was not 100 feet perfectly behind the entire lot, but one was able to achieve the 100-feet in some form or fashion.
Mr. Lerg stated that a similar structure at 1174 most likely would not qualify to meet the required setback. He noted that yes, this is something he wants to do,
but also feels that it is his right to have reasonable development of his property. He stated that they just want to have the same enjoyment that other properties have, and they want the same consideration for their property that abuts the open space area. He commented that the adjacent neighbor has a similar structure in the setback.
Ms. Brnabic asked if he was saying that the other neighbors do not meet the setback.
Mr. Lerg responded that he has discussed this with Mr. Wells, but has not brought it up to the neighbors.
Ms. Neubauer stated that whenever there is ambiguity in the law or Ordinance, the Board must look at the intent. She commented that Mr. Lerg brought up an interesting point about other neighbors with the same issue. She stated that the whole point of having a Zoning Ordinance is so that everyone in the area has similar structures; and if they did it for example without pulling a building permit she would question whether they could push back to find other similar structures in the subdivision that are in violation of the Ordinance.
Mr. Koluch asked if they might have been grandfathered in from being very old. He mentioned that they had a very similar application last September or October, and in that particular subdivision some of the houses were 10 feet closer to the front yard and some were 10 feet back, resulting in a staggered line. He mentioned that some people had enough room to build covered porches and some did not, and that was just the way that the subdivision was built.
Ms. Neubauer asked if Mr. McLeod had an answer to that.
Mr. McLeod stated that for the property immediately abutting, a deck is allowed to encroach. He commented that he did not see a covered structure there.
Mr. Lerg responded that there is.
Mrs. Lerg stated that 1174 has a screened-in covered porch with a roof on top. She noted that a little bit of deck sticks out, but the majority is covered with a roofing structure.
Discussion ensued as to which properties had covered structures.
Vice Chairperson Koluch commented that it is problematic to do this every time that the Board has a situation like that, noting that someone could go through the entire city. He stated that before moving on, he would like to address the interpretation.
Ms. Neubauer stated that she thinks that the interpretation is correct. She moved the motion in the packet to concur with the City Staff and the interpretation decision of the required rear setback. The motion was seconded by Ms. Brnabic.
After calling for a roll call vote, Vice Chairperson Koluch announced that the motion passed unanimously.
A motion was made by Neubauer, seconded by Brnabic, that this matter be Accepted to Concur with City Staff. The motion carried by the following vote:
|
|
|
Resolved, in the matter of File No. PVAI2024-0003, that the Zoning Board of Appeals concurs with City Staff in the interpretation/decision of the required rear yard setback and that the limited area of twenty (20) feet that the subject property abuts open space, along a side lot line, does not meet the intent of the ordinance in regards to reducing the rear yard setback.
|
Vice Chairperson Koluch stated that the Board would move on to the second issue, consideration of the variance request.
He stated that now that the interpretation has been dealt with, the variance request would be for 10 feet instead of five. He noted that the applicant had previously touched on the various points about the reason that he is requesting the variance. He stated that the Board has to consider practical difficulties, and he commented that this is the one that usually tends to be the most difficult to establish. He explained that practical difficulty exists in the property if there is something that is preventing the homeowner from using it for its intended purpose.
He stated that he has seen a few covered porch requests here on the Board; and the reality is that sometimes the property meets the requirements and their neighbors do not, and it is not always fair. He mentioned that his neighbor has a gazebo on his lot, while he cannot have one because of the way his house is positioned. He stated that one could potentially run into the problem where every single person in the subdivision wants a covered porch even though every single house would not be allowed to have one under the Ordinance, and he questioned where the line would be drawn.
He pointed out that is a corner lot, and there are not that many with that shape. He mentioned that another property on that street is a corner lot as well and they have a deck that he does not believe is covered. He questioned what would happen going forward if they were to say yes to the request. He noted that this is more of a want than a need. He stated that he can understand that they want privacy, but they can still have a back deck; and he does not think that the criteria for approval have been established from what he has heard so far.
Mr. Lerg stated that they looked at many different options for the backyard, one of which was having an accessory structure. He commented that he does not follow the logic that if they are 10 feet off of the main structure, it can be within five feet of a property line. He pointed out that they talked with the neighbors and told them they want to be as minimally invasive as possible, and technically they would not have to go before the ZBA to build a detached accessory structure. He stressed that they are trying to do this the right way and get some kind of a variance so they can have some enjoyment of their property to match
their neighbors.
Vice Chairperson Koluch asked if they had considered a retractable awning.
Mr. Lerg responded that he did not feel that it is a good application for them and he did not think that the neighbors would appreciate looking at that. He added that as it is on the north side, it would get a lot of mold and mildew on it.
Mr. Tischer asked if there was a practical difficulty to prevent them from using their backyard. He stated that he sees no practical difficulty as they could still put a hot tub out there, and have a deck, patio or accessory structure. He stressed that if the Board grants this variance request for one, it will have to start doing it for others, not only in this neighborhood but across the entire city.
Ms. Brnabic stated that she agrees with the members' comments made, noting that they cannot look around the neighborhood as to what happened and if there were permits pulled. She pointed out that there have been numerous requests for a covered structure, and mentioned that in July of 2023 one was denied. She stated that while it was not identical because of the open space question, it was a corner lot. She added that there have been plenty of cases over the years that she found and reviewed the minutes and staff reports where someone wants to add a sunroom or enclose their deck to create a screened-in porch, and they have all been denied. She stated that to her knowledge these two Ordinance sections have not been updated recently. She stressed that there has to be something for a practical difficulty that they can find on the property, whether it is topography or the way it is set up that stands out. She stated that for all those reasons, she would not be able to support approval.
Vice Chairperson Koluch asked for a motion from the Board.
Ms. Neubauer moved the motion in the packet to deny the request for the variance. The motion was seconded by Mr. Young.
After calling for a roll call vote, Vice Chairperson Koluch announced that the motion passed unanimously and the request for a variance was denied.
A motion was made by Neubauer, seconded by Young, that this matter be Denied. The motion carried by the following vote:
|
|
|
Resolved, in the matter of File No. PVAI2024-0003, that the request for a variance of 10 ft. from Section 138-10.100 Schedule of Regulations which requires a rear yard setback of thirty-five (35) feet in the R-3 One Family Residential zoning district, Parcel Identification Number 15-09-403-003, be DENIED because a practical difficulty does not exist on the property as demonstrated in the record of proceedings and based on the following findings:
1. Compliance with the strict letter of the restrictions of the Zoning Ordinance will not prevent the owner from having an outdoor deck, including a portion of such deck at the rear of the residence on the subject property in a manner that complies with the requirements of the Zoning Ordinance and therefore no practical difficulty has been demonstrated for this property.
2. Granting the variance will not do substantial justice to nearby property owners as it
would confer special benefits to the applicant that are not enjoyed by other property owners in the vicinity.
3. There are no unique circumstances of the property that have been identified by the applicant that necessitate granting the variance.
4. The subject property is not situated adjacent to open space in a manner that would help minimize impacts to an abutting neighbor, rather the granting of a variance in this case would allow a residential structure to be constructed much closer to an abutting residence than intended by Ordinance.
5. The granting of the variance would be materially detrimental to the public welfare by establishing a precedent that could be cited to support similarly unwarranted variances in the future. The granting of this variance could encourage further incursions upon the Zoning Ordinance which would result in further variances being considered by the Zoning Board of Appeals and could be construed as removing the responsibility of meeting the requirements of the Zoning Ordinance from applicants.
|
|
Request for Election of Officers - Chairperson, Vice Chairperson and Secretary for a one-year term to expire the first meeting in April 2025
Vice Chairperson Koluch stated that the final order of business this evening would be the election of officers for the coming year, with terms ending the first meeting in April 2025. He noted that the Chair is now vacant.
Ms. Neubauer nominated Vice Chairperson Koluch to be Chairperson.
Seeing no other nominations, Vice Chairperson Koluch called for a vote of affirmation for him to assume the office of Chairperson. The vote was unanimous.
Mr. Graves nominated Mr. Tischer to serve as Vice Chairperson.
Seeing no other nominations, Vice Chairperson Koluch called for a vote of affirmation for Mr. Tischer to assume the office of Vice Chairperson. The vote was unanimous.
Ms. Neubauer nominated Mr. Graves to serve as Secretary.
Seeing no other nominations, Vice Chairperson Koluch called for a vote of affirmation for Mr. Graves to assume the office of Secretary. The vote was unanimous.
Appointed: Kenneth Koluch, Chairperson; Chip Tischer, Vice Chairperson; Jayson Graves, Secretary.
Mr. McLeod explained that the City's Master Plan process is going on right now. He noted that he would be sending out an email whether anyone would like to
participate in the small focus group meetings. He stated that the first meeting is coming up on April 22, 2024, at 4 p.m.; a second meeting will be held in September; and a third meeting in February of 2025. He explained that these meetings will help create and refine the Master Plan, which is the guiding document for land use within the city. He commented anyone willing to participate even if they cannot attend one of the meetings is encouraged, and he stated that a member or two of the ZBA would be good.
Mr. Tischer mentioned that he would participate as a part of the Historic Districts Commission.
Mr. Graves stated that he would be interested.
|
- May 8, 2024
|
There being no further business to discuss, it was moved by Neubauer to adjourn the meeting at 7:42 p.m.
Minutes prepared by Jennifer MacDonald.
Minutes were approved as presented at the May 8, 2024 Regular Zoning Board of Appeals Meeting.
___________________________________
Kenneth Koluch, Vice Chairperson
Rochester Hills
Zoning Board of Appeals
___________________________________
Jennifer MacDonald, Recording Secretary