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Rochester Hills

Minutes

Zoning Board of Appeals

Chairperson Ernest Colling, Jr., Vice Chairperson Gerard Verschueren

Members: J. Martin Brennan, Deborah Brnabic, Jim Duistermars, Michael McGunn, Bryan

Monaghan

7:00 PM

1000 Rochester Hills Drive

Wednesday, February 10, 2010

MINUTES of the ROCHESTER HILLS REGULAR ZONING BOARD OF APPEALS MEETING

held at the Rochester Hills Municipal Building, 1000 Rochester Hills Drive, Rochester Hills,

Oakland County, Michigan.

CALL TO ORDER

1.

The meeting was called to order by Chairperson Colling at 7:05 PM.

ROLL CALL

2.

Jim Duistermars, Deborah Brnabic, Gerard Verschueren, J. Martin Brennan,

Ernest Colling, Michael McGunn and Bryan Monaghan

Present

7 -

Also Present: Judy A. Bialk, Recording Secretary

Chairperson Colling noted for the record that no representatives from City Staff were

present.

DETERMINATION OF A QUORUM

3.

The meeting was called to order by Chairperson Colling at 7:05 PM.

APPROVAL OF MINUTES

4.

4A.

2009-0538

November 11, 2009 Regular Meeting Minutes

Chairperson Colling called for any comments or corrections to the November 11,

2009 Regular Meeting Minutes. Upon hearing none, he called for a motion to

approve.

A motion was made by Verschueren, seconded by Brnabic, that the Minutes be

Approved as Presented. The motion CARRIED by the following vote:

Aye

Duistermars, Brnabic, Verschueren, Brennan, Colling, McGunn and

Monaghan

7 -

RESOLVED that the Minutes of the November 11, 2009 Regular Zoning Board of

Appeals Meeting be approved as presented.

ANNOUNCEMENTS / COMMUNICATIONS

5.

A. Planning & Zoning News, December 2009 Edition

B. Planning & Zoning News, January 2010 Edition

Chairperson Colling noted the Board had received various copies of the Planning &

Zoning News. He noted the Board had also received an informational packet

regarding the matter before the Board this evening. He passed along a color version

of the photographs contained in the packet for the Board’s review, and called for any

other announcements or communications. No other announcements or

communications were provided.

Chairperson Colling stated that the procedure for conducting Public Hearings was

outlined on a flyer located in the rear of the auditorium. He stated that any and all

evidence, and any documents or exhibits submitted during tonight's proceedings,

would be included as part of the public record of the meeting. He reminded the

Board and the audience that all questions should be directed to the Chair.

NEW BUSINESS

6.

6A.

2009-0539

PUBLIC HEARING - FILE NO. 09-004

Location: 46461 Dequindre Road, located on the west side of Dequindre Road,

south of Auburn Road, north of Sibley Avenue, Parcel Identification

Number 15-36-279-038, zoned R-4 (One Family Residential).

Request: A variance from Section 138-4.436(A)(3) to allow the keeping of poultry

(chickens) on a lot lesser in size than one (1) acre. Section 138-

4.436(A)(3) allows the keeping of poultry if there are no more than

12 and the parcel or lot is at least one acre in area.

Applicant: Thomas Noyes

46461 Dequindre Road

Rochester Hills, Michigan 48307

Chairperson Colling read the request for the record, and invited the applicant to come

forward to the presenter's table, state his name and address for the record, and

provide a brief summary of the request. He noted that any documents or other

materials submitted at this meeting would become part of the permanent record.

Mr. Thomas Noyes, 46461 Dequindre Road, was present. He thanked the Board,

Mr. McLocklin, Mr. Delacourt and Mayor Barnett for meeting with him and being

helpful and professional. He stated he had resided in the area for many years having

been raised on Winkler Mill Road, and displayed a picture of his family with chickens.

Mr. Noyes stated he lived on a unique piece of property which was a corner lot and

separated from his western neighbors by a tall wooden fence. He thought he had an

acre of land because he had measured it and paced it out, noting 43,560 square feet

comprised an acre. He thought his property started 50-feet from the center of the

roadway, although it was actually 60-feet from the center of the roadway. Based on

his calculations, he purchased some chickens because he was sure he had an acre.

Mr. Noyes displayed some pictures of his chicken coop, noting he liked to live close

to the earth. He had a hand water pump in the garden; heated with wood; made

maple syrup in the springtime, and the chickens were part of that ambience. He stated

he had made the chicken coop being displayed in the photograph, and commented it

was the perfect place to raise chickens because there were no foxes, coyotes or

raccoons to come in and eat the eggs. He stated the diner across the street saved

their table scraps and cooking scraps for him. The corner grocery, Hollywood

Market, saved greens and fruits and vegetables that are out of date which he feeds to

the chickens.

Mr. Noyes said his chicken eggs are needed, and the droppings from the chicken

coop were used to fertilize the garden. He stated the chickens could flap their wings

and that no fuel was used to produce or distribute the eggs. He felt the chickens put

back more than they took. He discussed the pecking order of chickens and Martha

Stewart's solution to that issue.

Mr. Noyes displayed photographs of the businesses located across Dequindre from

his property, including a car wash and car maintenance facility, a strip mall and a cider

mill that also had farm fowl on its property. He noted those businesses were located

in a different County.

Mr. Noyes stated he had a garden on his property and discussed an unemployed

neighbor who helped him out with the garden, for which they shared the produce and

he gave that neighbor eggs. This fall he turned his chickens loose to have them clean

up the garden. He was absolutely unaware that they were going on the neighbors'

property, until he was across the street taking pictures and noticed a chicken in

another yard. He stated that has not happened since.

Mr. Noyes stated if there was ever a reason to have a variance, it seemed to him this

case should be decided in his favor. He stated his chickens did no harm to anybody.

Mr. Noyes stated he visited with Ms. White, who had a complaint about the chickens

on her driveway. He stated Ms. White had health problems and had not accepted his

invitation to bring her to the meeting, but had submitted a note.

Chairperson Colling stated the Board had received three comments which he would

read for the record and which would be made a part of the record hereof. The

following residents provided their comments by telephone call:

Shurley White, 46317 Dequindre, indicated her concern that if the chickens

were permitted, they be kept penned. She explained the chickens were often

in her driveway, left droppings, and she did not want to clean up after them.

(Chairperson Colling noted this resident had provided a new note to the

applicant which contradicted her earlier comments).

Ms. Jacques, 3099 Hessel, indicated she could not attend the Public

Hearing and did not have any problems with the applicant keeping chickens.

Robert Haynes and Michelle Gaisser, 46281 Dequindre, were unable to

attend the meeting and provided photographs of the chickens on their

property. They were against the request and had filed numerous complaints

with the City over the chickens roaming into their yard, and tearing up their

grass and landscaping. They stated they were not against their neighbors

having chickens, but if the rules were not followed and the animals destroying

their property was an issue.

Chairperson Colling stated that as no Staff representatives were present, he would

read the Staff Report for the members of the audience. The application requests that

the keeping of poultry (chickens) on a lot lesser in size than one (1) acre be permitted.

A copy of the Staff Report has been placed on file and is a part of the record. He

asked if there were any questions about the Staff Report. No questions were asked.

Chairperson Colling opened the Public Hearing at 7:28 PM and asked if there was

anyone who wished to speak on this matter.

Gregory Letwak, 3141 Hessel Avenue, stated he was a long-time resident moving

from Hamtramck in 1972. Avon Township was pretty rural at that time and he had

seen the changes the Township and City had gone through. He stated the Brooklands

Subdivision had always had a bad rep due to the garbage dumps, the mushroom farms

and other issues. The area has progressed in a positive way, although the Brooklands

Subdivision still had a bad rep. Despite that he had built his house there. He provided

some pictures of his house and the area, which have been placed on file and become a

part of the record thereof.

Mr. Letwak stated he lives directly behind the applicant. He explained he can hardly

keep his windows open due to the traffic congestion on Dequindre Road, but did try

to keep them open whenever possible. Now he hears a rooster, which had been

persistent. He thought there were fifteen chickens, but did not know how many

roosters there were. He stated he owned the vacant lot next door and his property

backed up to the fence with the chicken coop directly behind the fence. He thought

the applicant could argue it was a nice chicken coop; he would show the kids and get

close to nature, but when June came along, it would smell. He asked who would

maintain it.

Mr. Letwak stated he was a builder and would eventually build a home on the vacant

parcel next to his house. He felt the chickens would detract from the value of any

house he would build. He asked if Ordinance Enforcement would count the number

of chickens when complaints were received by the City. He did not feel the

applicant's parcel was a commercial setting as it was a residential area. He felt the

chickens were a nuisance because his property backed up directly to them. He stated

he tried to maintain the integrity of the neighborhood. He explained the ten-foot fence

was installed by him at his expense because he was tired of looking at the weeds and

the tree stumps on the applicant's property. He noted the applicant did finally clean up

his property. The fence was a bonus to the applicant because his chicken coop ran

the length of the fence.

Mr. Letwak submitted a petition signed by the neighbors who concurred with his

sentiments on the matter and were opposed. The petition was placed on file and

becomes a permanent part of the record. Mr. Letwak stated there were health issues

with the chickens, and the problem of them running onto Dequindre Road which could

cause a major catastrophe. He asked that his thoughts be considered.

Chairperson Colling referred to Mr. Letwak's photographs, particularly the ones that

depicted a cyclone fence, and asked how that fence was viewed from Mr. Letwak's

home. Mr. Letwak stated that was from the vacant lot. Chairperson Colling clarified

the vacant lot was adjacent to Mr. Letwak's residence. Mr. Letwak stated it was.

Chairperson Colling asked if Mr. Letwak maintained the vacant parcel. Mr. Letwak

said he maintained it like it was a golf course because he lived next door and wanted

to maintain the integrity of the neighborhood.

Mr. Letwak concluded by stating he hoped the Board would decline the request.

Maria Letwak, 3141 Hessel, appreciated what the applicant wanted to have but

did not agree with it. Other than concurring with her husband's comments, she had

other reasons. She explained she has been nurse practitioner for 17 years, having

been a practicing Registered Nurse prior to that, with total years of experience of 25

years. As part of her working experience, she was the manager of an out-patient

asthma and allergy center for one of the major health systems. She submitted two

articles for the record, copies of which have been placed on file and become a

permanent part of the record thereof.

Mrs. Letwak explained one of the articles was from the Center for Disease Control

(CDC) published April 14, 2000. The article speaks of a salmonellosis outbreak

infection associated with chicks and ducklings in Michigan and in Missouri. She

summarized the article indicating several citizens infected with salmonellosis with

symptoms including fever, diarrhea, stomach cramps, and vomiting, with three patients

hospitalized. The illnesses were associated to exposure to chicks, ducklings and a

young turkey. She noted the article stated the Michigan outbreak describes the risk

for infection associated with the backyard production of fowl, which is what was being

discussed at this meeting. She noted the people at greatest risk were children and the

people caring for the animals if they are not using proper hand washing care, and those

people who were immuno-compromised and could not fight infection.

Mrs. Letwak stated the second article was about histoplasmosis which is another

infection associated with fowl, in particular chickens. She stated it was more of a lung

disease transmitted by breathing in dust spores or fungus produced by the chickens.

The symptoms can be flu-like and can become very serious lung infections. At

greatest risk are the young, elderly or those who are immuno-compromised.

Mrs. Letwak explained those diseases bothered her on a personal level because she

had asthma and there was no way for her to control the transmission of them through

the air. She was not aware of the health of all her neighbors, but in her household her

husband is a survivor of cancer with a history of immuno-compromization. She was

absolutely opposed to anything that would compromise his life. She noted it was a

concern for not just her household, but her neighbor's households as well.

Diana Stover, 3171 Hessel, stated the southwest corner of the applicant's property

abuts her property. She stated she could see his property very clearly from their pool.

She stated she had invested quite a bit into landscaping her yard and spent a lot of

time in their yard during the summer with their pool as it was their recreational spot.

She expressed her concern about the odor of the chickens, and with one incident that

occurred earlier this year with skunks coming in her yard. She thought the chickens

would draw wild animals, noting her dogs already got a hold of a skunk. She noted

she had resided there for twelve years and had never had the problem before. She

was also concerned about the chickens being free-range in the garden because the

garden was open area allowing the chickens to run free. She would be concerned

about that, noting the street was heavily travelled with ambulances and she thought the

chickens would be distracting to drivers. She knew about the immuno-compromised

issues because her husband had cancer and could not attend the meeting because of

those issues. That was a big issue for her family. She did not feel that the variance

was a good idea for the neighborhood.

Chairperson Colling called for any other persons who wished to speak on this matter.

There being no other persons wishing to speak, he closed the Public Hearing at 7:43

PM. He then called for discussion from the Board.

Chairperson Colling stated for the record that he lived at 3227 Emmons in the

Brooklands Subdivision and was familiar with all the properties in question. He stated

that the previous night he saw a raccoon in the neighborhood, and there were plenty of

them around the area. He stated the neighborhood had raccoons, skunks and other

kinds of wildlife that are attracted to and eat chickens and their eggs. He was

concerned from the standpoint of why the applicant did not go to the City to validate

he could have chickens before he brought them on to the property, or at least check

the Ordinances. City Staff would have helped with the property boundaries or the

amount of property the applicant owned.

Chairperson Colling stated he has sat on the Zoning Board of Appeals for about

twenty years and been involved with other cases requesting variances from this same

Ordinance. He stated the applicant had to present a practical difficulty, noting the fact

the applicant wanted to keep them was not a unique circumstance. He asked if the

applicant had some extenuating circumstances or insurmountable difficulty to allow the

keeping of chickens.

Mr. Noyes stated he did check with the City prior to purchasing the chickens and

found that if he had more than an acre he could have them. He calculated he had

more than an acre and got the chickens. He did not think he needed to go to the City

because he thought he was right. Since he found out the chickens were travelling on

the neighbors' properties, he had kept them penned. He stated he had to keep them

penned because he would have a garden and the chickens would tear up the garden.

He stated he must keep them penned and fully intended to do that.

Mr. Verschueren stated he would like to make a motion at this time and the Board

could discuss the motion. He provided the following motion, which was seconded by

Mr. Duistermars. Chairperson Colling then called for discussion on the motion.

Mr. Brennan stated that it had been the Board's past practice not to allow variances

for this type of situations with poultry, whether it was chickens or ducks, as the Board

had consistently denied those variance requests. He did not see any compelling

reason that had been presented to grant this variance. He noted the applicant has less

than an acre and he did not find a legitimate reason that complied with the Ordinance.

Mrs. Brnabic stated she could sympathize with the fact the applicant would like to

have the chickens, but it did not fit the criteria to grant a variance. Therefore, due to

the Ordinance and the circumstances, she did not believe the applicant fit the criteria.

Mr. Duistermars agreed with his colleagues that he could not find a practical difficulty

or unnecessary hardship that prevented the applicant from enjoying his land. The

property boundaries as platted when the Brooklands Subdivision was filed with the

County did not equal an acre in size. He referred to the comment about the

surroundings being more commercial. He noted Dequindre was a major road with

jurisdictional lines for the City Limits, State Representative, State Senate and

Congressional District all resting on that street. He pointed out Shelby Township was

on the east side of Dequindre which had its own zoning for that community. He

pointed out the applicant had adjacent property lines that were surrounded by the

Brooklands Subdivision and the applicant’s parcel was part of the Brooklands

Subdivision. The entire subdivision was similarly zoned, and he could not make the

applicant’s property an acre in size as the area was not there.

Mr. Duistermars stated the reason an acre was required for poultry was that chickens

were large roaming birds, able to jump over small fences, and could get on Dequindre

Road creating a public driving problem. He could not find for the applicant in this

instance.

Mr. McGunn stated he was in agreement with the Board particularly in light of the

overwhelming negative response from the neighbors.

Mr. Monaghan stated he empathized with what the applicant wanted to do but the

applicant needed an acre and did not have one, although he might be close to that size.

He thought the strongest argument the applicant had in his favor was that he was close

to an acre, but by itself, that just did not make the criteria. If the Board were to

approve the applicant with .9 of an acre, then they would have to approve .8 and then

.7, and pretty soon the Zoning Ordinance would not be effective. He did not think the

applicant had shown what he needed to show to receive a variance.

Chairperson Colling commented he had moved to the Utica area of Michigan in 1964,

and prior to that had lived on a farm and had raised chickens. He was familiar with

the Brooklands Subdivision. The geese referred to on the other side of Dequindre

Road were part of a cider mill that has been zoned a farm for years. He knew about

the mushroom farms that have since been closed and are now gone. He stated that

the applicant could take care of the chickens and keep the coop clean, cutting down

on the disease and dust. Unfortunately, there was no way to increase the applicant's

property to justify the variance. In all fairness, in the past cases that had come before

the Board, the precedent was set that the Board did not bend the rule for anyone.

Once the Board granted one variance, irrespective of the size of the property, it would

support unwarranted variances in the future.

Chairperson Colling called for any further discussion on the motion on the floor. Upon

hearing none, he called for a roll call vote.

A motion was made by Verschueren, seconded by Duistermars, that this matter

be Denied. The motion CARRIED by the following vote:

Aye

Duistermars, Brnabic, Verschueren, Brennan, Colling, McGunn and

Monaghan

7 -

RESOLVED in the matter of File No. 09-004, that the request for a variance to

permit the keeping of poultry (chickens) on a lot lesser is size than one (1) acre, be

DENIED for 46461 Dequindre Road, Sidwell 15-36-279-038, with the following

findings:

Findings:

1. No practical difficulty or unnecessary hardship exists, or has been demonstrated,

for this property or parcel. Specifically, no unusual property characteristics

impair the appropriate use within the R-4 (One Family Residential) Zoning

District.

2. The granting of the variance is not necessary for the preservation and enjoyment of

a substantial property right possessed by property owners in the same zone or

vicinity, as the use of this property can satisfy the requirements of the R-4

Zoning District.

3. No unique circumstances have been demonstrated that would prevent the use of

the property as intended.

4. The circumstances are self-created by the property owner in the form of the

applicant's desire to keep and raise chickens on a lot lesser in size than one

acre, which does not meet City Ordinance requirements.

5. The granting of the variance would be materially detrimental to the public welfare

or materially injurious to the property in such Zoning District in which the

property is located by establishing a precedent that could be cited to support

similarly unwarranted variances in the future.

6. The granting of the variance would also be detrimental to the public health and it is

a proven fact that chickens easily carry diseases and, therefore, are health

hazards.

2009-0539

Chairperson Colling noted the variance had been denied and the applicant would have

to work with the City regarding the disposition of the chickens.

ANY OTHER BUSINESS

7.

7A.

2009-0540

Adopt 2010 Meeting Schedule

Chairperson Colling stated that in order to be in compliance with the Open Meetings

Act, the Board was required to adopt a meeting schedule for the year. He noted a

copy of the 2010 Schedule was included in the packet and asked if the Board had any

questions or comments. No comments or questions were offered and the Board

unanimously adopted the 2010 Meeting Schedule as follows:

RESOLVED that the Rochester Hills Zoning Board of Appeals establishes its 2010

Regular Meeting Schedule as follows:

The Regular Meetings will be held on the second Wednesday of each month

and will be held at the Rochester Hills Municipal Offices, 1000 Rochester Hill

Drive, Rochester Hills, Michigan, and will begin at 7:00 PM Michigan Time.

2010 MEETING DATES

January 13, 2010 July 14, 2010

February 10, 2010 August 11, 2010

March 10, 2010 September 8, 2010

April 14, 2010 October 13, 2010

May 12, 2010 November 10, 2010

June 9, 2010 December 8, 2010

This matter was Approved

7B.

2010-0070

2009 Annual Report

- Review

Chairperson Colling noted that the Board had received a copy of the 2009 Annual

Report, and asked if there were any comments or questions.

Mr. Verschueren thought the Report should include whether or not the granted

variances were carried out.

Chairperson Colling did not think the Board's records included that information. He

suggested if the records reflected what was done after the variances were granted or

denied, that could be included in the report. He thought another Department would

have to provide that additional information.

Mr. Verschueren stated the Board had never been provided that information and it

was his suggestion that he would be interested in seeing the results.

This matter was Discussed

ADJOURNMENT

8.

Upon motion by McGunn, seconded by Monaghan, Chairperson Colling declared the

Regular Meeting adjourned at 8:12 PM.

__________________________________

Ernest Colling, Chairperson

Zoning Board of Appeals

City of Rochester Hills

__________________________________

Judy A. Bialk, Recording Secretary