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Zoning Board of Appeals Minutes - October 14, 2009

THE CHARTER TOWNSHIP OF CHESTERFIELD

ZONING BOARD OF APPEALS

October 14, 2009

 

On October 14, 2009, a regular meeting of the Chesterfield Township Zoning Board of Appeals was held at the Township Hall located at 47275 Sugarbush, Chesterfield Twp., MI 48047.

1. CALL TO ORDER: Chairman Stepnak called the meeting to order at 7:00 p.m.

2. ROLL CALL: Present: Marvin Stepnak, Chairman

Carl Leonard, Vice-Chairman,

Nancy Orewyler, Secretary Brian Scott DeMuynck, Township board liaison

Paula Frame, Planning Commission liaison

Gerald Blake

James Klonowski

3. PLEDGE OF ALLEGIANCE:

Chairman Stepnak explained the procedures to the audience.

4. ZBA PETITION # 2009-19: Derek Lubinski who resides at 47742 Sugarbush, Chesterfield, MI 48047. Requesting variance to be over 312’ over allowed square footage for 24.5 x 12.8 addition to existing garage., Original garage was approved under the 2/3 rule, therefore, petitioner is seeking variance for the addition of 312’. Location for variance is stated above.

John M. Ketzler, 4225 N. Atlantic Boulevard, Auburn Hills, MI 48236 addressed the board.

Mr. Ketzler, stated that he was an attorney representing Mr. Lubinski. He stated that he was requesting a variance of approximately 300 feet with respect to a standing structure garage that was currently located in the petitioner's backyard. The garage was constructed in 1998 and was standing on his client's property for 11 years. He presented photographs of the home when it was purchased and also pictures of how the home looks at the present time. He explained that the petitioner does not have a basement and he uses the space in his garage for storage of primarily personal and some of his business items. He would like to make the board aware of the fact that the petitioner has meticulously maintained this home and increased the value of the home. He has made many improvements to the home and to the property. The petitioner has spent $20,000 for a concrete driveway. The petitioner has planted numerous trees and also landscaped the entire yard. His client has done a great job in improving and maintaining the property. He stated that the garage was an additional 300 feet and was currently standing there. The garage is part of the structure at this time.

Mr. DeMuynck verified that the home was purchased in 1997, the addition was constructed in 1998, and no permit was every obtained?

Derek Lubinski, 47742 Sugarbush, Chesterfield, MI 48047 addressed the board.

Petitioner answered that was correct.

Mr. DeMuynck asked why the petitioner never pulled a permit?

Mr. Ketzler explained that his client hired a builder to construct the addition to the garage. It was his client's understanding that the builder would pull all the necessary required permits. Apparently, the builder did not pull the permits.

Mr. DeMuynck stated that the petitioner runs a business out of this home. He asked if the business was registered with the Township?

Petitioner answered no and that his business was not at the home; it was everywhere else.

Mr. DeMuynck stated that the business address was registered at the petitioner's home.

Petitioner answered yes it was his home address but that was not where he kept all his stuff for his business.

Mr. DeMuynck stated that the petitioner keeps his truck there.

Petitioner answered that he drives his truck home.

Mr. Ketzler asked if the petitioner's truck was also used as his personal vehicle?

Petitioner replied yes.

Mr. DeMuynck asked about the vans parked out in back?

Petitioner stated that he drives one and one is just a spare.

Mr. DeMuynck asked if the petitioner had a business address in another community?

Petitioner answered no, he just uses his home address. He does his paperwork at home because he has a baby.

Mr. DeMuynck stated that regarding the business, there is a Township ordinance which requires businesses to be registered in the Township.

Ms. Orewyler stated that she had been over to the property and had a couple of concerns. She commented that as much space as the petitioner has, there are still a lot of things sitting around and in back of the garage. There is a trailer alongside of the home that is not on a concrete pad. She really does not have a problem with the addition but there would be stipulations should she make a motion for this variance to pass.

Mr. Klonowski asked if the petitioner stored any electrical equipment or parts for the business in the garage?

Petitioner stated that at times he has some equipment at home, but most of his stuff is in Roseville.

Mr. Klonowski commented that it looked as though only the addition was the issue?

Petitioner answered it was.

Mr. Klonowski asked if that had been there 11 years, or was that a new addition?

Petitioner answered that the addition had been there 11 years.

Mr. Blake had no comments.

Ms. Frame stated that she had an issue with the fact that there were no permits pulled when the structure was built. She stated that she had an even bigger problem with the fact that the petitioner is running a business out of his home that has not been registered with the Township.

Mr. Leonard stated that the petition was requesting a variance of 312 feet. He explained that the main garage measures 26'3" x 39' and the addition was 12'8" x 24'5" according to the paperwork. He was not sure how this was calculated but according to his figures it would be about 400 square feet over what is allowed. He stated that the numbers just do not add up.

Mr. Ketzler stated that the existing garage might have been over the 920 square feet. He asked if that was the point Mr. Leonard was making?

Mr. Leonard answered that in fact the petitioner is asking for a variance of more than 312 square feet.

Mr. DeMuynck commented that the original garage was built in 1990 and was built under the 2/3 rule according to the notes on the agenda.

Mr. Leonard stated that he figured that the original structure was 1,025 square feet and the addition was 309 square feet which would make the total square footage 1,334 square feet.

Chairman Stepnak asked what was the nature of the petitioner's business?

Petitioner explained that he was an electrical contractor.

Chairman Stepnak asked how much of the petitioner's day was spent at his home doing business?

Petitioner answered that he does his paperwork at his home and the mail for his business was delivered to his home.

Chairman Stepnak asked if the petitioner did any wiring or circuit boards at home?

Petitioner answered no.

Chairman Stepnak asked so basically the petitioner has alluded that most of his business is done in Roseville?

Petitioner stated that that was where he kept his stuff, as far as storage.

Chairman Stepnak verified that the petitioner does not really do a large amount of his work out of his home.

Petitioner replied yes.

Chairman Stepnak asked how much material for the business was stored at the petitioner's home?

Petitioner stated that he had a few shelves of work material stored at his home.

Chairman Stepnak asked if the garage was used for anything besides items for business?

Petitioner answered that there was Christmas stuff, bikes, lawn equipment, a four wheeler and some other things in there.

Chairman Stepnak asked the petitioner if he had a basement in the home?

Petitioner replied no.

Mr. Leonard explained that he did not really have a problem with the petitioner having the additional garage space because he does not have a basement. However, the math does not jive. He mentioned that if the petitioner had a garage that was 920 square feet and he had a shed which would be an additional 120 square feet. The petitioner would be at 1,040 square feet. He asked if the petitioner had a shed?

Petitioner answered yes a small portable one.

Mr. Leonard answered is the petitioner did not have the shed and the attached part of the garage was approved, he would only be 300 square feet over the allowable square footage. He asked Chairman Stepnak if the variance request is for 312 and the request should actually be for more like 414 square feet...

Chairman Stepnak stated that he guessed the question Mr. Leonard was asking would be if the publication was proper as sent out.

Mr. Leonard commented that he just wondered if that would be a problem.

Chairman Stepnak asked Ms. Orewyler to read the variance request that was published.

Ms. Orewyler read the published variance request.

Mr. Leonard stated that if the Township was using the 2/3 rule as allowed then the petition request would be accurate as published because they would not be going with the current ordinance of 920'

Chairman Stepnak stated so basically the variance request and the paperwork that the Township has provided to the board was correct.

Mr. Leonard agreed.

Ms. Orewyler read a letter from a Phil Grosso who runs a group home next door to the petitioner at 47754 Sugarbush. Mr. Grosse stated that the petitioner's were great neighbors and that he was in favor of the board granting the variance.

There were no public comments.

Mr. DeMuynck asked Mr. Lubinski if his business was registered in Roseville?

Petitioner answered no.

Chairman Stepnak explained that whether the business is registered in the Township would not really be an issue for the variance. However, he understood Mr. DeMuynck's position as a Trustee on the Township Board and about wanting everything to be proper.

Mr. DeMuynck stated that he understood Chairman Stepnak's comments, but this was something he needed to know as a member of the board.

Chairman Stepnak stated that could be an issue that would be discussed at a different venue. He commented that was not an issue the ZBA would consider for the garage.

Motion by Ms. Orewyler to approve petition # 2009-19 for the requested variance to be over 312’ over allowed square footage for 24.5 x 12.8 addition to existing garage at 47742 Sugarbush. Original garage was approved under the 2/3 rule, so the petitioner is seeking variance for the addition of 312’. The reason for approval was that there is not enough storage room because petitioner has no basement. The petitioner has an oversized lot which would also require more storage for lawn equipment. She added that both of the petitioner's trailers must be stored on concrete. She stated that the shed would have to be removed from the property because the addition on the garage would be the petitioner's accessory building. She added that all of the wheelbarrows and clutter around the garage and in back of the garage must be stored in the garage.

Supported by Mr. Blake

Mr. DeMuynck asked if he could make an addition to the motion?

Chairman Stepnak stated absolutely.

Mr. DeMuynck advised the petitioner contact the Clerk's Office.

Chairman Stepnak asked the petitioner and his attorney if they knew where Mr. DeMuynck was going with this.

Mr. Ketzler stated that they understood what Mr. DeMuynck was talking about. He explained that the petitioner did not have a problem registering his business with the Township. He understood the position regarding what has been presented before the board. He stated that as a gentleman's agreement his client agrees to fill out all the necessary paperwork to register his business and make sure he is in compliance with Chesterfield Township.

Chairman Stepnak thanked the petitioner and Mr. Ketzler.

Mr. Leonard commented that it may be a given but, he thought the garage addition should also be inspected by the Township Building Department to make sure everything was done by code, since the builder never pulled a permit. He added that the petitioner would be required to pull the necessary permits and that inspections be done.

Ms. Orewyler agreed to the additions to her motion

Mr. Blake continued support.

Ayes: All

Nay: None Motion Granted

5. ZBA PETITION #2009-20: Gerald & Tracy Ulewicz who reside at 49340 Bayshore, Chesterfield, MI 48047. Requesting a 1.57 side yard setback variance on the south side of residence leaving 8.43 and a 2.80 side yard setback variance on the north side of residence leaving a side yard of 7.20, for a 12’ x 32’ porch. Ordinance requires a 10’ side yard setback. Location for variance is stated above.

Gerald Ulewicz, 49340 Bayshore, Chesterfield, MI 48047 addressed the board.

Petitioner stated that he was requesting a 1.57 side yard setback on the south side of his residence leaving 8.43 and a 2.80 side yard setback variance on the north side of their new house which would leave a side yard of 7.20, for a 12’ x 32’ porch. He explained that they submitted a set of house plans for approval and when the plans were approved, went to the Building Department to get the permits to start construction. At that time, he related that they were told to modify the porch by narrowing it in by four feet. They were told that it did not matter which way it was done, but that the porch had to be narrowed by four feet. It was written on the plans by his wife in front of the Building Department representative. After that, in July, their architect had to redesign the plans to accommodate the four feet. He had to change the windows, the interior walls, trusses and footings. The architect brought the plans back to the Township offices, to the same Building Department representative, and the plans were approved. The house was taken down sometime after that and he came in front of the ZBA and obtained a variance for the house for the side yard setbacks. After a few days, they resumed their house project. He stated that construction was going well and in September they dug the trenches for the front porch. The trenches were inspected and the footings were poured and passed inspection. He stated that after construction of the porch began, a representative from the Building Department showed up claiming that the porch had to be 10 from the property line on each side. They were not 10’ on each side but they thought they were okay because they were told only to narrow the porch by 4 feet which they did. At that time, they were given a verbal stop work order which has delayed the porch again. He was told that they could just move in on each side of the porch to comply with the R 1 A zoning requirement. He explained, however, that would not be an option because it would conflict with the entire front of the house. The windows and doorwalls would be affected, the roofline would not match properly, the trusses would have to be changed, the interior load bearing wall would have to be changed, the front windows would be misaligned, and the footings would all have to be redone. He stated that if they had been told to move the porch in further at the beginning, they could have done it at that time and the architect could have redesigned it. They could also have requested this variance the last time they were in front of the board, but he was not aware they were in any violation. They requested to see the revised building plans that were in file with the Building Department that showed that the porch was already moved in 4 feet. Unfortunately, he stated that those plans could not be located by the Building Department. However, he did have a copy of those plans after the changes to the porch were approved. He related that according to code R 1 A lots must be a minimum of 90’ wide and the length cannot be greater than 3 times the width. He explained that almost every lot in their subdivision does not comply with that standard. He mentioned that there has been an accepted offer on their rental home and they now have about four weeks to vacate their rental home. He stated that they need to erect the porch in order to continue with the house project.

Mr. Klonowski asked if the petitioner had the copy of the approved plans?

Petitioner answered yes and brought the plans up to the board members.

The board, the petitioner and the architect at that time took a few minutes to review the plans. The discussion was not audible.

Ms. Frame stated that she had no questions.

Mr. DeMuynck stated that he saw the home earlier that day and he had no questions.

Ms. Orewyler had no comments.

Mr. Leonard agreed that the petitioner’s statement about the lot sizes is valid. Very few of the lots are 90’ wide.

Chairman Stepnak stated that when he saw the variance request, he commented that he thought the ZBA had already entertained the matter of the setbacks for this home. The question would be was the porch on the physical drawings. He stated that according the meeting minutes of 8-26-09, there was some discussion between himself and Mr. Shortt concerning the porch.

Chairman Stepnak read Mr. Shortt’s comments from that meeting." Mr. Shortt stated that the petitioner's house would meet all the building codes. It would not have to be a rated wall because it would be greater than three feet from the property line. It would meet all the ordinances and the porch they would be adding onto the back would conform with the R 1 A zoning. The petitioner's would be stepping that in. He stated that the plans that the petitioner submitted to him would meet all the zoning and building codes. It would be an R 1 A zoning on a fifty foot lot. "

Chairman Stepnak explained that the comments were in the meeting minutes and so the board did touch the subject of the porch and the setbacks at the 8-26-09 meeting. He commented that the way he is looking at it, this was settled on the 8-26-09 meeting.

Public Comments

Mr. Paul Lonisell, 24001 Greater Mack, St. Clair Shores, MI addressed the board.

Mr. Lonisell stated that Mr. Gendernalik planned to address the meeting that day; however, he had a conflict and could not make the meeting. He explained that Mr. Gendernalik asked him to step in to represent Ms. Rebecca Johnson and Mr. Melchior who have filed objections to the variance request. He mentioned that Mr. Gendernalik prepared a rather lengthy submission with the detailed objections to the variance.

Chairman Stepnak had not seen the copy. However, his comment was that everyone received the packets to their residences. He explained that past protocol has been that everything presented to the ZBA would go through the Planning and Zoning and the Building Department and the information is then distributed to the board. He did not know if this really followed normal protocol.

Mr. Lonisell explained that unfortunately Chairman Stepnak’s copy came back to their office. He stated that a copy was addressed to the ZBA, and therefore one was actually sent to this building. As a courtesy, Mr. Gendernalik sent also sent copies to everyone's home. He continued that Mr. Gendernalik had many points that were included in his presentation. Furthermore, his client pointed out something that evening that was not in the presentation. He was not sure if the board was aware of this fact; and it might shortcut this hearing or make this hearing illegal, he guessed; or at least not in accordance with the State's statutes. Apparently, the document that was filed for the notice of hearing was dated September 18th and he stated that according to State statute the deadline for an appearance application must be submitted one month prior to the hearing. He pointed out that it was September 14th. He did not know if the board wanted to deal with that issue.

Chairman Stepnak stated that he really appreciated the counselor's comments concerning the documents. However, none of the members of the board are attorneys and they have not practiced law. Basically the board gets the petitions in front of them and they planned to move on the petition as it was presented. He stated that if the board moves on the petition improperly, he believes that they would be contacted via the proper system going through the Planning Commission and coming back to the ZBA or by the Township attorney.

Mr. Lonisell stated that he would rely on someone who is expert on these matters to decide whether the State statute would make this hearing improper. He explained that another point he would like to make was that the petitioner misled the Building authority when he submitted his plans. He added that the original submitted plans were to add an addition on to the home. However, what the petitioner ended up doing was tearing out three walls of the home. He mentioned that fact was not brought up at this hearing. He stated that by doing that, the house predated the 96' zoning ordinances. The house was grandfathered in and was outside the setback requirements of the 96' ordinances. He stated that by tearing down three of the walls, without telling anyone and without pulling a demolition permit, the petitioner kind of brought the delay and hardship upon himself. Their complaint that evening was limited to one small issue, the porch. There will be a second hearing scheduled to address at Judge Viviano's order on the 28th, to address the bigger issue of the house as to whether the house, the rebuilt home, should be allowed, or a variance should be allowed for the rebuilt home. He stated that they would not be getting into that and they would now just be addressing the porch issue. But the Judge did order the board to review the petition and he repeated that was scheduled for October 28th. He added that Mr. Gendernalik would be present at that time to argue the objections to that variance.

Chairman Stepnak stated that the Township attorney would also be present for that hearing on October 28th.

Mr. Lonisell stated that he would mention the issue about the timing and see if they could resolve that issue before that. He continued that their position was that when the architect presented his drawing to the board, he did not include the side line setback measurements. The architect, when he submitted the plans to the ZBA, did not take into consideration that even the porch had to comply with the 10' setback requirements. He stated that their position was that his clients have a narrow lot and if the petitioner was allowed to build the porch, there would be problem getting to the front and the back of the property without encroaching on his clients property. That was his client's objection and their problem. He thought that the zoning rules are there for a purpose and if someone can just go ahead and build their house in violation of those zoning rules, and get a variance, he guessed there was no reason to have zoning rules to begin with. He reiterated that there was a clear violation of the zoning rules because the petitioner was advised early on that he was building his porch within the 10' setback; and he continued to build the porch. So, he was asking the board to take all of that into consideration in reaching its decision. In conclusion, he stated that there are really three requests. He believes this matter, even though it was separate from the variance requested on the house, was similar; they kind of go together. In fact the petitioner was arguing that he needed a porch in order for the construction of the house to be proper.

Mr. Lonisell asked that the board consider tabling this matter before making a decision, so that the decision on this matter and the house, itself, which is basically a newly constructed home, could be made at the same time. He thought the two of them are twined. He asked that at that time, the board would deny the petition on the porch. He explained that if the porch could go a couple of feet into the 10' set off requirement; there was no reason why he could not move it so that it would comply with rules as written. He continued that when the board does make the final conclusion as to this petition, as to the porch, and he hoped that the board would hold off on a final determination until the 28th; they would ask the board that if they grant the variance as to the porch, that it consider certain conditions be imposed on the petitioner for that variance. He stated that the petitioner built a shed within the 10' set off, which is unsightly and was at the front of the property between their house and the water. He also mentioned a swing set that was also in that 10’ set off. In his opinion, it just seemed like, as to petitioner, the 10' set off variance is a non entity. That he does not have to comply with it. He stated that the petitioner thinks he can put the shed where he wants to put it, and put a swing set where he wants to put it, and tear down a house, saying he was only building a second story on to it, and just go about and build it the way he wants. He stated that if the petitioner's architect misses it, well give him a break, because his architect did not catch the fact that he was building a house within the 10' set off. He stated that it was not his client's fault that the petitioner did this and they do not think that because the architect or the petitioner made a mistake and built the porch and house in violation of the ordinances, it was a good reason to grant the variance. He commented that if it was then the ordinances need to be thrown out the window.

There were no other public comments.

Erik Heiderer, 44045 Gratiot, Clinton Township, MI addressed the board.

Mr. Heiderer stated that he took offense to the attorney's comment that he made a mistake on the plans for the home. He did not make a mistake. The original house was already approved during the last meeting. The only thing being addressed today was the porch. He explained that he did not do the site plan. The land surveyor did the site plan and gave him all the information. He used that information and what he was given to them by the Township to design the plans for the home and they were approved that way. Any mistakes made in this situation were not made by him.

Mr. Leonard commented that he thought it was quire amusing that the neighborhood with all those narrow lots would even be listed as an R 1 A. He has lived on the water for over 20 years and the lots are narrow. He has 3' on one side and 5' on the other and that was kind of an established set back requirement on waterfront properties. He stated that as far as being 10' from the property lines and blocking any access from the street to the waterside; the footprint has always been there and the foundation has always been there. The porch was intruding less than the existing footprint that has been there for 50 years.

Chairman Stepnak asked if the petitioner was aware of the neighbor's wanting the shed and the play scene moved over on the property, or was this the first he heard of this?

Petitioner answered that he was aware of the neighbor's objections now, one year later. He mentioned that actually, it has been longer than one year for the play set.

Chairman Stepnak stated that earlier the board looked at a garage addition with a shed; that kind of went together. In this case, the board would be looking at a porch. As for reconstruction this property and site plans, that was really not what the board was considering this evening. He would look at the petition was that on August 26th, the board entertained the setback's for the house and there was some brief discussion in the meeting minutes concerning the porch. He commented that he did not know if it was actually submitted to the board. It did not seem to be an intentional oversight. Regardless, the board already approved the house with the setbacks at the August 26th meeting. He stated that what is coming in the future in which the court will direct the board; they will deal with at that time. He stated that in his opinion, the board already moved on this issue and 80% to 90% of the homes in Chesterfield have back porches. So, people in the house do not just fall out of the back of their home. A porch on a home would be normal. As far as he was concerned, the board already moved on this issue and at this time they would only be clarifying what they had already done.

Petitioner commented that he has complied with everything that has been asked of him. He followed the directives of the Zoning Board and the Building Department and he was at the meeting at that time to follow the board’s directives.

Erik Heiderer asked Chairman Stepnak if the board already approved the porch at the last meeting and they had to pay again for the variance request for this meeting; would there be a reimbursement of the $300 that they paid for something that was already decided?

Chairman Stepnak stated that the petition was being brought in front of the board for clarification.

Erik Heiderer stated that he was just making a point.

Chairman Stepnak stated that the petition had to be republished and information had to be mailed out. He wished that they could reimburse the petitioner, however, there are administration fees and evidently there was a feeling from the Township that the issue had to be revisited.

Motion by Ms. Frame to approve ZBA Petition # 2009-20 for the reasons that it follows

the original footprint and corresponds with the motion that was approved on 8-26-09. Furthermore, the petitioner does have a set of revised site plans that were approved by the Building Department on 7-17-09. She stated that for those reason she made the motion to approve the petition.

Supported by Mr. Klonowski

Ayes: All

Nays: None Motion Granted

6. OLD BUSINESS:

There was no old business.

7. NEW BUSINESS:

There was no new business.

8. APPROVAL OF MINUTES OF PRIOR MEETING:

Motion by Mr. DeMuynck to approve the minutes from the September 23, 2009 meeting.

Supported by Mr. Orewyler

Ayes: All

Nays: None Motion Granted

9. COMMENTS FROM THE FLOOR:

Chairman Stepnak thanked Ms. Frame for her attendance at the ZBA meeting.

10. ADJOURNMENT:

Motion by Ms. Frame to adjourn at 8:06 PM.

Supported by Chairman Stepnak

Ayes: All

Nays: None Motion Granted

Nancy Orewyler, Secretary

Grace Mastronardi, Recording Secretary

 

 

 

 

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