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Zoning Board of Appeals Minutes - June 9, 2010

THE CHARTER TOWNSHIP OF CHESTERFIELD

ZONING BOARD OF APPEALS

June 9, 2010

On June 9, 2010, 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

Nancy Orewyler, Secretary Janice Uglis, Township board liaison

Paula Frame, Planning Commission liaison

Gerald Blake

James Klonowski

Thomas Yaschen

3. PLEDGE OF ALLEGIANCE:

Chairman Stepnak explained the procedures to the audience.

4. ZBA PETITION #2010-09: Ralph Daley who resides at 48762 Salt River Drive, Chesterfield,

MI 48047. This request is to appeal the Building Department Official’s determination and or

Decision not to allow a revised building plan to bring the plans for the garage space into compliance with the zoning ordinance limitations that the garage not be designed to house more than three vehicles. Location is stated above.

Roger Q. Hyde, 42815 Garfield, #214, Clinton Township, MI 48038 addressed the board.

Mr. Hyde stated that he was an attorney for Mr. Ralph Daley, Jr. the owner of the subject property. He stated that before this honorable board was a petition to overturn Mr. Shortt’s decision not to allow a revised plan for the completion of construction of Mr. Daley’s home on Salt River Drive. There are a lot of details in the expression of the petition and he would like to bring a few items into focus and address some points and then answer any questions the board may have on their position. The original plan was submitted based on the original building plans some years ago. At the time, it included a four car garage with two sixteen-foot wide garage doors. He brought the plan before the ZBA for a variance. The concern at the time was the two sixteen-foot garage doors and there was a suggestion made restricting one of the doors to twelve-feet wide so they would not create the appearance of a four-car garage. The variance request was denied because the board did not find grounds for granting that relief. A circuit court lawsuit was filed was brought by the petitioner’s former attorney challenging the ordinance as constitutionally vague. He explained that the ordinance does not say that there is a maximum size for garage doors; it does not really address garage doors or size. Instead it limits the size of the garage structure to a size that will hold three or less cars. In an opinion issued on June of 2005 the Circuit Court dismissed the lawsuit challenge and upheld the ordinance as constitutional. Judge Druzinski stated that the ordinance does not allow for unbridled discretion and the Township could not go all over the map with it. The Township would have to restrict itself in accordance with the ordinance. The judge further stated that what saved the ordinance from unconstitutionality was that if a person stepped in front of the board with a plan for three or less cars in the garage structure and the structure was 920 square feet or less then "it must be approved". The point was if there wasn’t some limitation on the Township then the court would be inclined to think it was unconstitutional because there were not enough restrictions to confine the power of the government. He stated that he met Mr. Daley shortly after that opinion was made final by the Court of Appeals. At that time, the suggestion was made to go back to the Township and provide the building official with a revised plan and include the craft room in the design.

Mr. Hyde stated that his father was an architect for General Motors and he had a craft room in his four-car garage. That was his inspiration for suggesting to Mr. Daley to rather than change the outside appearance of his garage that he change the interior to be in compliance. Mr. Shortt turned down the request guided by the former Supervisor’s opinion that to be in compliance and stated that to proceed with construction that the petitioner would have to reduce the size of one of the garage doors. He mentioned that nothing in the court decision stated the petitioner would have to reduce the size of the garage door. It simply stated that the law was constitutional. Therefore, the petitioner was asking to appeal the decision by

Mr. Shortt to the Construction Board of Appeals. Evidently, the Township does not have a Construction Board of Appeals and that led him to believe that they had to go back to Circuit Court and challenge the decision of the Building Official without coming to the ZBA. The Township defended vigorously and persuaded Judge Druzinski that the ZBA had jurisdiction to rule on Mr. Shortt’s decision concerning this matter and the case was thrown out. The petitioner then went a second time to the Court of Appeals and the Court of Appeals issued a decision that he thought was significant enough that he quoted it in the second page of the petition. He stated that basically the court of appeals stated that they would affirm Judge Druzinski but they made an observation that "the ZBA has not already made a final decision on the issue against the plaintiff Ralph Daley. The 2007 plans were revised to include a craft room, which could rebut the presumption decided in the first ZBA decision that two sixteen-foot garage doors means a four-car garage." Therefore, because the plans were different, the petitioner could come back to the ZBA and ask for a review of Mr. Shortt’s decision with the revised plan to determine if they would be in compliance and therefore have the decision overturned and have the building completed with the addition of the craft room. He stated that the secretary was kind enough to share the letter by the Township Attorney, Ms. Christine Anderson wrote to the board with her opinion. He suggested that

Ms. Anderson seems to think that the decision was made on the fact that the craft room does not have a build out with heating electrical, etc.; such would be existent in a habitable space. He explained that he had the opportunity to meet with Mr. Shortt when he took his deposition in January of 2008. At that time, he put the question to him as to what was the problem with the revised plan. On page 12, line 22, Mr. Hyde asked if the room had to be habitable? He stated that Mr. Shortt ‘s answer was no. Therefore, it was not an issue if the room had heating. He added that the craft room would have electrical by the way. He explained that the point would be would the craft room redesign the structure making the area a three-car as opposed to a four-car garage. On page 18, Line 11 Mr. Hyde asked if looking at this plan is it true that the craft room does eliminate the possibility of a fourth car being parked in the garage? Mr. Shortt’s answer was yes. Therefore, there has been a lot of litigation and expense, but the essence of the petition was that Mr. Daley wants the board to overturn

Mr. Shortt on the narrow issue of the design and structure defined that if he puts in a craft room it eliminates the fourth door and that he does not need a variance and that he would be in compliance with the Zoning Board.

Mr. Shortt stated that the craft room would have to be habitable. He stated that he could not just allow the petitioner to put in a 2’ x 4’ closet. It would have to be a habitable room with heat, 8% of glass of which half would have to be operable, the room would have to be insulated, the petitioner would have to use a 20 minute fire-rated door and there would have to be a separation from the garage.

Ms. Frame had no questions at that time.

Mr. Yaschen asked Mr. Shortt if the installed electrical would have to be 220?

Mr. Shortt answered no. The rooms would have to have a light switch at the door and electrical outlets every six feet.

Mr. Yaschen verified that the room would have to have lights?

Mr. Shortt stated that it would have to have lights, electrical outlets, windows, insulated, capable of heating it to 68 degrees, and there would have to be three feet off the floor for

the room.

Mr. Yaschen asked if the garage door as it stands now would have to be taken down?

Mr. Shortt stated that if it is an insulated door it would have to meet the energy code. Technically, the petitioner should have a sub floor with insulation over the flap to meet the energy codes. He explained that he did not know if the garage door was insulated or not. Furthermore, he was not sure if the petitioner planned to leave it or to build a partition inside it. The petitioner would have to put R15 in the cavity of the wall. He stated that was why the plans were rejected. He wrote on there, when the plans were submitted, that they were rejected because the petitioner did not show a wall section whether it would be built out of wood, 2’ x 4’ with 16" on center, if there would be drywall. He needed the petitioner to show him the fire-rated door, show him the heat, show him a green plate on the slab, and show him what type of insulation would be used. He stated that he had a list and that was why the plans were denied.

Mr. Yaschen asked, to this day, if the petitioner submitted any plans that included this information?

Mr. Shortt answered no.

Mr. Klonowski asked what would happen if the petitioner would sell his home? What would stop anyone now or in the future from taking out that room and utilizing the garage to store four cars?

Mr. Hyde stated that if the building permit was issued and the C of O was issued predicated on the plan as approved by the Building Official and someone would change something in a way that would remove the features that would be necessary for public health and safety then the building could be cited. It would be a crime. It would be a misdemeanor.

Ms. Uglis stated that originally when the house was constructed and the plans were brought in did it show there was a four-car garage?

Mr. Hyde answered yes, that originally there was space for four cars. Then the Building Department scribbled a note by the 16’ door that requested the door be reduced to 12’. He stated that was how the plan was approved with the thought that the petitioner could not go larger than 12’ wide without a variance. That proved to be unsuccessful so now rather than go down to a 12’ door there was wood put up temporarily while they request inclusion of the craft room and keep the outer door at 16’.

Ms. Uglis asked when the plans were submitted with the two 16’ doors and the Building Department put the note on the plans to reduce one door to 12’, why was it still constructed?

Mr. Hyde stated that now they were getting into a lot of factual matters. The inspections occurred based upon how the building was being made at one point the brick had to be put up and according to his client there was a rough inspection that was approved. He thought it was because of the left hand and right hand. He supposed that his client was thinking he was going to the ZBA to get the variance and eventually he will get it. The right hand being the Building Department is seeing a building going up with a space for a 16’ door. This was addressed by the Circuit Court case on different occasions. He thought that was why the petitioner eventually put the wood up to cover the area until this is resolved.

Ms. Uglis stated that when the petitioner found out he could not have the two 16’ doors and he was only supposed to have a three car garage in there, he still had the petitions going. She stated that the only reason she mentioning this was because she did not know the total history on this. She asked shouldn’t the petitioner have gotten the variance before proceeding with the project? She asked wasn’t that the proper way to proceed?

Mr. Ralph Daley, 48762 Salt River Drive, Chesterfield, MI addressed the board.

Mr. Daley stated that he went ahead and built the garage without the variance because he had discussed the issue with Mr. Shortt when he applied for his permit. He explained that if you understand construction, if a door opening for a 4’ door is built and the door size has to be reduced, all that has to be done is a couple of studs have to be added and there is a 3’ door opening. However, to increase a 3’ door to a 4’ door the construction is considerably more horrendous because headers must be ripped out and opening sizes must be changed and a lot more has to be done to the project. In essence, he stated it would be a lot easier to make the door smaller than it would have been to make it bigger. The construction cost alone would have been thousands of dollars to make it bigger. Mr. Shortt and he had both agreed that if he did not get the variance; he could always make it smaller. He was proceeding with the variance at the time of construction. Unfortunately, there were two meetings without a quorum and the petition was tabled. So, he continued with construction and talked to Ms. Shawn Shortt about it. He got his inspections and he made a note on the acceptance for the rough inspection that it was pending ZBA approval. He stated that everything they did, they did together. He stated that they discussed everything and he did everything with Shawn’s approval to that point. He thought hopefully he would get a quorum and the matter would be settled. He went ahead so he would not have to stop construction and face cost overruns and delays.

Ms. Uglis commented that she understood where the petitioner was coming from and agreed as far as building it was a lot easier to make a door smaller that to make the area larger. However, now the 16’ garage door is put up. She asked why the petitioner would do that? Was it because winter was coming?

Petitioner stated that at that time Mr. Shortt would not even give his a temporary C of O without a door there. He explained that he just wanted leave the opening. He did not want to buy the 16’ door and put it in place; but it was required that he have a door there of some kind. He mentioned that once again, if he had purchased a 12’ door and won the appeal, he would have had a door that he could not use. Once again it was easier to make an opening smaller than larger.

Mr. Blake asked if the petitioner had a header on there now for the door?

Petitioner answered yes.

Mr. Blake asked so what was the problem with putting in the 12’ door and putting brick on the outside?

Petitioner asked if Mr. Blake had been by the property to see the house?

Mr. Blake stated that he had seen the house.

Petitioner stated that the aesthetics are symmetrical and that has probably been the biggest stepping stone for his to hurdle. The house was designed symmetrically with both garages being the same size. They are very compliant with each other. He explained that when looking at the house at the front only one garage door is visible and when looking at the side of the house only one garage door is seen. To reduce the one door by four feet, there would still be a two-car garage there, but it looks like he made a mistake. The petitioner stated that he did not want it to look like a mistake. He added that according to the ordinance, as long as the garage is not designed to house more than three cars, it complies with the ordinance. He explained that with the craft room, he cannot get a fourth car in that garage. So, the garage doors should not really be an issue and that is probably why the ordinance does not address that issue. He reiterated that with the craft room, he could not put a fourth car in that garage. So, he stated that he has complied with the ordinance.

Ms. Orewyler stated that she went out to the petitioner’s home and she did not understand why the petitioner would put a craft room where it is and not closer to the house if it was to be usable. She stated that the craft room appears to be smaller than it is on the drawing. She asked why the craft room would not go all the way to the door, if that was what the petitioner really wanted?

Petitioner stated that he has a motorcycle and the craft room is adequate size. He stated that it was 8’ x 12’ 6". He mentioned that his wife gave him the dimensions. She does crafts and wants room to work on her tables out in the garage. The petitioner explained that with the craft room this size, he would also be able to store his motorcycle in the garage. He owns three cars and he would like to put the three cars in the garage. He does not want to keep his motorcycle outside.

Ms. Orewyler asked the depth of the garage?

Petitioner stated that it was20’ 9".

Ms. Orewyler asked if the petitioner planned to put wood walls for the craft room?

Petitioner answered yes.

Ms. Orewyler read a letter from Mr. & Mrs. Joseph Rumenapp favoring the granting the variance.

Ms. Orewyler read a letter from Mr. Ray Saelens recommending the board deny the petitioner’s variance.

Ms. Orewyler asked if Chairman Stepnak wanted her to read the letter from the Township attorney, Christine Anderson.

Mr. Stepnak stated that was not necessary because all the parties involved received a copy of said letter.

Mr. Daley presented the board with a letter from Mr. Dennis Dugan, Pointe Lakeview Drive.

Ms. Orewyler read the letter from Mr. Dugan that in favor of the board granting the variance for the petitioner.

The four letters were all retained for the Zoning Board of Appeal’s records.

Public Comments:

Frank Hubbard, 48759 Salt River Drive, Chesterfield, MI addressed the board.

Mr. Hubbard stated that he thought the home looked symmetrical and was in favor of the board granting the variance.

Art Ashley, 48744 Pointe Lakeview, Chesterfield, MI addressed the board.

Mr. Ashley made a number of negative comments recommending that the board deny the petitioner’s variance.

Mr. Hyde stated that he felt the board had a pretty good understanding of the issues and the concerns. He commented that he hoped the board would disregard the personal attacks on Mr. Daley. He is a citizen of the community, a business man and a long time home owner and his intentions are to abide by the law. He stated that any photographs brought in would not change the issue. The issue would be does the petitioner have a structure that would be designed to house less than four cars, and he does. He stated that what if the petitioner had a sliding 12’ door that would slide back and fourth and allow more than three cars to be parked in the garage. Obviously, that would be hiding a violation and they were not asking for something like that. The petitioner would have room for four cars and would have a sliding door to accommodate that. The petitioner was asking for the craft room to be approved so that he can go ahead and have his three car garage. He explained that the other comment about the petitioner changing the structure back later and that there is a need for a building or deed restriction is nonsense. He explained that if a permit is approved and they had to have upgraded electrical for GFI protection. A person could not go all through the house and take all of those out and expect to avoid enforcement if the inspection comes by. If the electricity was changed and it violated the code, the homeowner would be cited. These structures have windows and the petitioner has offered to have the Building Department come and look in the windows any time they would like to do so.

Chairman Stepnak stated that the comment about what could change; the board has no control over that. The board tries to eliminate going back and they have no reason to police the petitioner’s property.

Petitioner stated that Mr. Ashland signed a petition when he wanted a variance for the garage six years ago.

Mr. Ashland commented from the audience that he did not sign a petition concerning the garage.

Petitioner stated that Mr. Ashland had attacked his character and he would like to state that he has not done anything against the law and regulations of the Township.

Chairman Stepnak stated that the board had no feeling that the petitioner had done anything wrong. He stated that the board was only looking at what had been presented to them that evening. He commented that he tries to remind people to refrain from personal attacks.

Petitioner asked Mr. Shortt if when they talked about the permit and they were both in agreement, if Mr. Shortt let him proceed with the building with the variance in process with the understanding that if the variance was denied, he could close the door up. He asked if that was correct?

Mr. Shortt agreed with the petitioner. He stated that the petitioner proceeded with the construction at his own risk. He explained that it was not out of the ordinary to let someone proceed while they are waiting for approval of something. The Building Department does not want to stop the construction. The petitioner had his lumber out there and he had to wait a month and a half for the ZBA meeting because there was not a quorum. He reiterated that the petitioner understood that he was proceeding at his own risk. It was like the petitioner explained, it was a lot easier to put a 16’ door in. It was a lot easier to put a16’9" header in than try to tear out a 12’ to put in a 16’ if it was approved. The Building Department and the petitioner were under the understanding that the petitioner was moving ahead at his own risk and if it was approved great. Otherwise, the door would have to be converted back.

Mr. Ashland commented that he was not attacking Mr. Daley’s character. He just wanted the board to know his opinion on the matter.

Chairman Stepnak stated that the board was looking at what is being presented that evening. To clarify for the board members exactly how the appeal was submitted and published, he read the appeal as written on the petition: "Appeal from Township Building Official’s decision to not allow a revised building plan to bring the plans for the garage space into compliance with the Zoning Ordinance limitation that the garage not be designed to house more than three cars." He advised that the board would only be looking at what had been presented to them in the petition that evening.

Mr. Hyde stated that it was his understanding that the Township was to provide the board with the existing records from the Building Department. He asked if Mr. Shortt supplied the records to the board?

Chairman Stepnak stated that Mr. Shortt did provide the board with the records and the board has already entertained Mr. Shortt’s comments. Furthermore, Chairman Stepnak stated that he advised the board to ask Mr. Shortt or the petitioners any questions that had concerning the variance. He mentioned that Mr. Shortt was present at the meeting in an advisory capacity and was not member of the board. Mr. Shortt was there to share his knowledge on exactly what had transpired.

Motion by Ms. Orewyler to deny the request to overturn the Building Department Head’s decision to deny the revised building plan having found no hardship or practical difficulty.

Supported by Ms. Frame

Ayes: All

Nays: None Motion Granted

5. OLD BUSINESS:

There was no old business.

6. NEW BUSINESS:

Ms. Orewyler commented that there were five petitions on the agenda for the 6-23-10 ZBA meeting.

7. APPROVAL OF MINUTES OF PRIOR MEETING:

Motion by Ms. Orewyler to approve the minutes from the May 12, 2010 ZBA meeting.

Supported by Mr. Klonowski

Ayes: All

Nays: None Motion Granted

8. COMMENTS FROM THE FLOOR:

Chairman Stepnak stated that he was glad Ms. Frame could join them for the meeting that evening. He thanked Mr. Shortt from the Building Department for attending the meeting.

9. ADJOURNMENT:

Motion by Mr. Blake to adjourn at 7:49 PM.

Supported by Ms. Orewyler

Ayes: All

Nays: None Motion Granted

Nancy Orewyler, Secretary

 Grace Mastronardi, Recording Secretary

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