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APPROVED MINUTES OF THE REGULAR MEETING
OF THE KENTWOOD ZONING BOARD OF APPEALS
CITY COMMISSION CHAMBERS
SEPTEMBER 21, 2015, 7:00 P.M.
 (return to index)
 
  1. Chair Derusha called the meeting to order.
     
  2. Roll Call
    MEMBERS PRESENT:  Les Derusha, Kemal Hamulic, Robert Houtman, Alan Lipner, Russ Slater, Monica Sparks, Chad VanSoelen
    MEMBERS ABSENT: 
    OTHERS PRESENT: Attorney Jeff Sluggett, Community Development Director Terry Schweitzer, Staff Secretary Monique Collier, the applicants, and 3 residents
     
  3. Approval of the Minutes and Findings of Fact
     
Motion by Hamulic, supported by Lipner, to approve the minutes of August 17, 2015 and August 24, 2015.   
  • Motion Carried (7-0) –
  • Public Hearing
     
    Appeal #V-15-13
     
    Applicant:                               3663 Broadmoor LLC           
    Location:                                 3663 Broadmoor Ave SE
     
    Request:          The applicant wishes to utilize an existing building for a vehicle repair establishment and indoor vehicle sales.  The project involves the addition of overhead doors to the west (rear) side of the building.  The building is setback 90 feet from adjacent residentially zoned property to the west; Section 10.03.C.4 of the Kentwood Zoning Ordinance requires a minimum building setback of 100 feet from a residential district boundary.  The requested variance is for a reduction of 10 feet to the required building setback.
     
    Dan Hula, Hula Engineering and Darehshori property owner of 3663 Broadmoor were present representing the request. Hula stated they are 10 feet off the property line. Darehshori stated there is a big drop from the residential area to the building and a big hill and he is proposing that they will put 8-12 feet evergreen trees along the property line to block noise. He stated it appears to be far enough away from the residential with the drop and with the addition of the trees and the doors being closed; but where the doors will be is the only spot where you can put the doors.
     
    Derusha stated his thought was how often the doors will be open. Mechanic shops tend to be a little noisy but if they are closed most of the time that would eliminate some of the noise. Darehshori stated with the weather 6 months out of the year it has to be closed and once in a while in the summer when the weather is nice it may be open. He stated he plans to landscape the building really nice and plans to block the neighbors in the back. They would plant some evergreen trees. He stated he thinks this will really help as well.
    Hula added there is a berm in back that is fairly high and it is well vegetated right now but it is more deciduous so in the summer time there is a pretty good buffer.
     
    Houtman questioned if need be would they be willing to put a sound fence in back. Darehshori stated yes they would. If they plant the trees and the neighbors complain they would put the fence up. Darehshori stated they want to keep the neighbors happy. Schweitzer stated the fence height in a non residential zone can be as high as 8 feet.
     
    Hula stated the minimum setback to the residents is 20 feet and according to the site plan they have 28 1/2. He stated instead of having 100 feet they have 90.40 therefore when it comes to code you are only talking a few feet. He stated with respect to noise the distance away from the noise source decreases exponentially. He stated it is really difficult to say what the decibel level is going to dissipate but the zoning ordinance is 100 feet and they are within a few feet of that. Discussion ensued.  
     
    Houtman asked if the neighbor was concerned.  Darehshori stated no she is not.
     
    Derusha stated according to the map there is a 10 foot drop between the building and the residential. Hula stated the drop north is lower than the one directly to the west but there is still a substantial berm.
     
    Derusha stated his thought would be an as needed restriction. He thinks plant some evergreens and if needed then a fence some time in the future. Darehshori stated he would assume the neighbor would like the evergreens anyway. Darehshori stated you put a fence on a giant hill then you will have a 16 foot tall area. Darehshori stated they can start with the evergreens and plant those and he will comply with the neighbor if she has a complaint.
     
    Slater suggested staggering the evergreens so they will have two rows of evergreens instead of one and that will make a nice sound barrier.  
     
    Derusha stated his first thought when he looked at the request was if the applicant could put the door somewhere else as you are walking in the building, but there is really no logical place to put the doors other than where they are.
     
    Houtman asked if they will have to expand the asphalt in back. Darehshori stated yes they will have to put a small drive, there is some patchy asphalt in the area in the back. Hula stated they are adding asphalt just for traffic.
     
    Chair Derusha opened the public hearing.
     
    Ken Hollman was present then realized he wasn’t near the property.
    Schweitzer stated the request went through planning commission for special land use approval and during the course of that a conversation came up about the property immediately to the west and the impression we got was the neighbor to the west wasn’t opposed to the project; she just requested that the doors be kept closed as much as possible especially during the summer. Derusha stated his concern was noise; Schweitzer stated that was the conversation that the Planning Commission had too.
     
    Lipner questioned what the recourse would be after the request was granted and the neighbor finds is not acceptable.  Schweitzer stated the Zoning Board can put the condition on the request (if they were to grant the variance), put a condition on a sound wall either right away or if it didn’t work out to put it up thereafter. If that still wasn’t effective she could go to the court to contest the action taken by the City. Sluggett stated if the applicant and neighbor couldn’t work it out and it was disturbing her ability to enjoy her property, she could bring a private nuisance action but that would be a private action that would not be anything the City could do on her behalf.
     
    Schweitzer stated the Zoning Board can grant the variance with conditions or deny it. They can grant the variance with the condition that the sound wall goes up if they get complaints.
     
    Hamulic asked if a condition can be to revisit the request in a year. The commissioners stated the neighbor did not show up at the public hearing nor write a letter and she received the notices.
     
    Schweitzer stated if they are inclined to conditional approval based upon the fence sound barrier and if staff investigates and finds that it is an issue that would be the trigger to require of the applicant to erect the fence .
     
    Motion by Houtman, supported by Hamulic, to close the public hearing.
     
  • Motion Carried (7-0) –
     
    Houtman stated point 1 has been met by reason of the use and development of the property immediately adjoining the property in question where by the literally enforcement of the requirement would involve practical difficulties. Houtman stated point 2 is met it is not so general that we need an ordinance change to take care of it. Houtman stated point 3 is met that such a variance is necessary for preservation and enjoyment of the use of the property and he will not have financial return as a result of the doors being in or out.
     
    Lipner concurred that points 1,2 and 3 have been met and complimented the applicant for the reuse of an existing property.
     
    VanSoelen, Slater, Hamulic, Sparks and Derusha concurred that points 1,2 and 3 have been met.
     
    Houtman stated point 4 is met because the variance will not be detrimental to the adjacent property or the surrounding neighborhood. Houtman stated point 5 is met it will not impair the ordinance. Houtman stated point 6 is met because the difficulty was created by they way the building was built.
     
    Lipner concurred that points 4, 5 and 6 have been met.
     
    VanSoelen stated point 4 will be met with evergreen trees and that points 5 and 6 are met.
     
    Slater stated points 4, 5 and 6 have been met, but he would like to assign conditions of a sound fence if needed and fir tress planted if needed.
     
    Hamulic, Sparks and Derusha stated points 4,5 and 6 have been met.
     
    Motion by Houtman, supported by Lipner, to approve V-13-15. The applicant will be required to install a sound barrier of trees and up to and including a sound barrier fence if necessary as determined by the Planning Department staff.
    1.      That there are exceptional and extraordinary circumstances or conditions applying to the property that do not apply generally to other properties in the same zoning district and the use of the adjacent property.
    2.      Due to the exceptional and extraordinary circumstances applying to the property, the condition or situation of the specific piece of property for which the variance is sought is not of so general or recurrent a nature as to make reasonable practical the formulation of a general regulation for such conditions or situations.
    3.      That such variance is necessary for the preservation and enjoyment of a substantial property right similar to that possessed by other properties in the same zoning district and in the vicinity.
    4.      The variance will not be detrimental to adjacent property and the surrounding neighborhood. There is existing vegetation and a hill to screen the use and more or a wall will be added if needed.
    5.      Due to the exceptional and extraordinary circumstances applying to the property, the variance will not impair the intent and purpose of this Ordinance.
    6.      That the immediate practical difficulty causing the need for the variance request was not created by any action of the applicant.
     
  • Motion Carried (7-0) –
    Appeal #V-15-14
     
    Applicant:                               Karl & Denise Heugel
    Location:                                 1845 Rowland Ave. SE
     
    Request:          The applicants are adding a porch with a front yard setback of approximately 25 feet onto their home and wish to enclose an 8-foot by 7-foot section of the porch.  The property is zoned R1-C Single Family Residential and requires a minimum front yard building setback of 35 feet for the enclosed porch.  The requested variance is for a reduction of 10 feet to the required front yard building setback.
     
Karl and Denise Hugel of 1845 Rowland Ave SE were present. Karl stated they already have approval to add a porch to the front of their house. They want to enclose the section right in front of the current entryway and offset the door so that it would face the porch and that enclosure is 7ft x 8ft. Karl stated when they first contracted for that work their builder looked at the dimensions and measured things off from the house, he had first measured from the edge of the street and thought that they were fine then later on when he turned in the request the Planning Department stated it had to be from the edge of the easement and they didn’t realize the easement was 14 ½ feet from the street. Therefore that put them into the area where they enclosed part of the porch and it does not fit the current zoning.  They are looking for a variance to enclose part the porch which has already been approved. 
 
Houtman asked how big will the porch be. Karl stated the porch sticks out 8 feet from the house, it goes from the north side of the house to about 2/3 or ¾ of the house. The back edge of the porch would be the enclosed part of the porch, 8 feet from the house and 7 feet long, along the house. Houtman stated this sounds like this is just more of an entryway. Karl stated that is correct they are just adding a new entryway, so instead of the front door being right in the living room they would have an entryway. Houtman asked if he will have to take the tree out by his house. Karl stated no that is clear of the area.
 
Houtman questioned the neighbors entryway. Karl stated that is how they found out they couldn’t do their entryway. Hamulic stated it states the neighbors enclosed porch was in 1999 and it was not supposed to be closed. Vansoelen asked if this is nonconforming. Schweitzer stated this is illegal nonconforming. Hamulic questioned if the City will do anything to the neighbors. Schweitzer stated the ordinance allows for an unenclosed porch to extend as much as 10 feet into the required front yard. The required front yard is 35 feet. Schweitzer stated they got a permit to put the unenclosed porch when they enclosed it, it made it an extension of the main building and they are not supposed to have the main building any closer than 35 feet. Schweitzer stated the applicant can do the unenclosed porch with a permit but it’s when they want to put a portion of it on and it’s coming out about 8 feet. Schweitzer stated his interpretation would be that they are asking for a 7 foot variance rather than a 10 foot variance.
 
Houtman stated if he didn’t get the approval what would he do. Karl stated it would just be an open porch.
 
Slater stated he sees in the ordinance that there have been 4 times that the boundaries have changed. Schweitzer stated what that means is depending on along that stretch and depending on when the house was built there are different requirements that come into play.
 
Discussion ensued regarding the neighbors enclosed porch and ordinance changes and when the houses were built.
           
Hamulic asked why he thinks the request will not be detrimental to the adjacent properties. Karl stated one of the reasons is the City has the setback so that they are not blocking view from other neighbors. They feel with the enclosed porch the neighbor to the north would only see the open part, they wouldn’t see the enclosed and the neighbor to the south their house is closer to road than their home and he wouldn’t see the porch and they don’t think it will cause any detriment to their neighbors. The other reason they were looking to have it is for the curb appeal of the house it is going to make it look nicer and they feel that it will help the neighborhood. 
 
            Derusha opened the public hearing.
 
Carl Mast, owner of the property adjacent to the request was present he stated he is in favor of the variance.
 
Schweitzer stated that 1845 Rowland was built in 1971 and 1846 Rowland on the other side of the road was built in 1971 but we don’t have the card as to when 1851 Rowland was constructed. But he thinks it was about the same time because they could go to a 25 foot minimum given the established setbacks in the area. Schweitzer stated they can extend 10 feet but the question is can they enclose a portion of that setback with the addition.
 
Webb had some information that suggest the neighbors applied for a permit in 2007 to enclose the porch they were denied so they withdrew their permit request and it would appear that sometime between 2007 and now they put the addition on. Webb stated they applied for a roof over the porch and then it says they withdrew their application.  Schweitzer stated a roof they can put over the porch but by putting the sides on that makes it enclosed.
 
Schweitzer stated the neighbor applied for a permit in 2001 for the un enclosed deck but when they wanted to put a roof on and enclose it that is when it was denied, they withdrew the request at that time and finished their deck in 2005. Houtman stated their deck is legal everything else from there up is illegal.
 
Discussion ensued.
 
Schweitzer stated there are single family detached homes throughout that subdivision, the setback has changed a little bit but the nearest property for comparison, illegally put on an enclosed porch
 
            Derusha opened the public hearing.
 
            There was no public comment.
 
Motion by Houtman, supported by Hamulic, to close the public hearing.
 
  • Motion Carried (7-0) –
     
    Slater stated point 1 is met the neighborhood has changed in its density and original composition over the years and zoning has been changed over the years. Slater stated point 2 is met if we allow those boundaries from 25 to 40 feet he thinks it has been met. Slater stated point 3 is met he thinks for preservation it will be a nice addition to the house
     
    Hamulic stated point 1 is not met with respect to 1 C he stated it is nothing against the applicants request, but he feels if he approves this it will give everybody an opening and he can’t do that. Hamulic stated point 2 has not been met. Hamulic stated point 3 is met.
     
    Sparks stated points 1,2 and 3 have been met and she understands what Hamulic is saying but the neighbors are not here, we shouldn’t stop them because of the neighbors.
     
    Houtman stated points 1,2 and 3 have been met and he agrees with Sparks we are dealing with the applicant and not the neighbors.
     
    Lipner stated point 1 has been met due to point 1c because in driving the neighborhood he did notice other properties that had enclosed porches and the development of the neighborhood warrants point 1 being met. Lipner stated with the flux of sizes of setbacks point 2 has been met. Lipner stated point 3 has been met.
     
    VanSolen stated point 1 has not been met it is not extraordinary, many of the houses don’t have enclosed porches. VanSolen stated point 2 has not been met he believes it is reoccurring in nature houses on the street that do not have enclosed porches will ask for the same thing. VanSolen stated point 3 has not been met; the enjoyment maybe a little less, but you still have a roof over the porch and he does believe it will increase the house value with the additional square footage.
     
    Dersuha stated point 1 and 2 have not been met the property is rectangular flat and unremarkable Derusha stated point 3 is questionable.
     
    Slater stated point 4 is met it creates a curb appeal and it helps the character of an older neighborhood to be more presentable. Slater stated point 5 is met because the ordinance has wondered all over the map and he thinks this is a marketing, stylistic thing. Slater stated point 6 is met because he is working within the zoning interpretations as it has gone on through the years.
     
    Hamulic stated point 4 has been met. Hamulic stated point 5 is met, he doesn’t know what the intent and purpose of the ordinance. Hamulic stated point 6 has been met.
     
    Sparks, Houtman, Lipner concurred that points 4,5 and 6 have been met.
     
    VanSoelen stated point 4 has been met. VanSoelen stated point 5 has not been met as it goes against what the current ordinance states, it goes against the 35 foot setback and we would have to look at an ordinance change in order to approve. Vansoelen stated point 6 has been met.
     
    Derusha stated he is shaky on points 4 and 5 and they have not been met and point 6 is met.
     
                Motion by Slater, supported by Houtman, to approve V-15-14.
    1.      That there are exceptional and extraordinary circumstances or conditions applying to the property that do not apply generally to other properties in the same zoning district. The ordinance for required front yard setback had changed since the home was constructed.
    2.      Due to the exceptional and extraordinary circumstances applying to the property, the condition or situation of the specific piece of property for which the variance is sought is not of so general or recurrent a nature as to make reasonable practical the formulation of a general regulation for such conditions or situations.
    3.      That such variance is necessary for the preservation and enjoyment of a substantial property right similar to that possessed by other properties in the same zoning district and in the vicinity. Without the variance the enclosed porch could not be constructed.
    4.      The variance will not be detrimental to adjacent property and the surrounding neighborhood.
    5.      Due to the exceptional and extraordinary circumstances applying to the property, the variance will not impair the intent and purpose of this Ordinance.
    6.      That the immediate practical difficulty causing the need for the variance request was not created by any action of the applicant.
     
  • Motion Carried (5-2) –
  • Derusha and VanSoelen dissenting -
     
    Motion by Lipner, supported by Hamulic, to adjourn the meeting.
     
  • Motion Carried (7-0) –
     
     
     
     
    Meeting adjourned at 8:25 p.m.
     
                                                                            Respectfully submitted,
     
                                                                            Alan Lipner, Secretary