Board of Zoning Appeals Minutes

1. CALL TO ORDER:

Chairman Stapleton called the meeting to order at 7:30 P.M.

2. ROLL CALL:

Commissioners:

Present:
Rolland Stapleton
Charles Ayers
Chris Gazlay
Bill Lokey
James Bress
James Haveraneck
Carol Maise
Larry Jensen
John Rae

Absent:
Luke Durst – excused
Connie Cronin – excused

Also Present:
Jay Wendt, Chair. Planning Commission
Gary Word, City Manager
Jerry Mittman, City Council
James Gallogly, DPW Director
Mary Massaron Ross, Attorney, Plunkett & Cooney.

Motion by Maise, supported by Bress to approve the agenda. Voice Vote: Ayes: All. Nays: None.

4. MINUTES:

Motion by Rae, supported by Ayers to approve the minutes of the regular meeting of April 7, 2004. Voice Vote: Ayes: All. Nays: None. Motion Unanimously Carried.

CASE #03 - 09
Mike Chiado
539 Rouge Street
Northville, Michigan 48167

The applicant is returning from November 3, 2003. At that time the applicant was offered the

opportunity to return at a later date because of the number of BZA commissioners absent.

The applicant requests a variance to Article 15, subsection 16 – 90% average setback of 24’, 3" to request a 9’2" variance from 24’3" to allow for a setback of 15’1".

Mr. Chiado stated that he wished to add a 200 sq. ft. screened-in porch to the rear of his home. The porch will have neither heat nor running water. The following reasons were listed for the requested variance:

• Due to a landmark black walnut tree located near the house, the porch must be extended to the east or to Oakland Avenue. (Attachment II)
• The proposed 15’ 1" setback is consistent with or greater than setbacks of the adjoining neighborhood homes. (Attachment I)
• Average setback on Rouge Street is 16’ 7" and 19’ 6" on Oakland. (Attachment I)
• Neighborhood approval letter. (Attachment III)

COMMISSIONER COMMENTS AND CONCERNS: The unique aspect is this is a corner lot with two front yard setbacks. If the structure has a footing and a roof over it, it becomes an extension of the building and needs a variance.

Motion by Maise, supported by Haveraneck to grant a 9’2" variance in the rear set back for construction of a porch at 539 Rouge St. Roll Call Vote: Ayes: Ayers, Bress, Haveraneck, Lokey, Maise and Stapleton. Nays: Gazlay, Jensen and Rae. Motion Carried.

CASE #04-06
Our Lady of Victory Elementary School
116, 132 & 224 Orchard
Northville, Michigan 48167

Chairman Stapleton stated tonight’s OLV case is an appeal. He listed the following ground rules:

1. The BZA will review the actions of the Planning Commission, (PC).
2. The BZA members have reviewed over 1,300 pages of materials which were submitted to the Planning Commission.
3. It is the burden of the appealing party to convince a majority of the board to overturn the Planning Commission’s decision. They are not to replay the PC meetings.
4. The opponents will be given an opportunity to state why the Planning Commission decision should be confirmed. They are not to replay the PC meetings.
5. Public comments will be taken. The comments will be in "support of" or "opposed to" the PC’s decision. Only new reasons will be allowed.
6. If a motion is made to reverse the PC’s decision, it should be stated as such.

Commissioner Bress, BZA Secretary called the case:

1. APPELLANT: Our Lady of Victory Catholic Church (on behalf of the Archdiocese of Detroit.)

Represented by Michael A. Nedelman, Nedelman Pawlak PLLC
32000 Northwestern Hwy, Ste. 240
Farmington Hills, Michigan 48334

2. PROPERTY INVOLVED IN THE APPEAL: Our Lady of Victory Catholic Elementary School at

116, 132, 224 Orchard Drive
Northville, Michigan 48167

Legal Description: Lots 48, 49, 50, 51, 52 & 53 – Orchard Heights Subdivision – Tax ID Nos.

48-003-02-0053-001, 48-003-02-0053-002, 48-003-02-0052-002 and 48-003-02-0048-000.

3. APPELLANT’S INTEREST IN PROPERTY : Owner

4. DECISION BEING APPEALED: Planning Commission decision of March 2, 2004.

Specific Decision - Planning Commission denial of application for Special Land Use Permit

5. STATEMENT OF GROUNDS FOR APPEAL: ERROR in the decision or order being appealed. (Article 25, Sec.25.04a) Bress read the Statement Of Grounds For Appeal:

A. The Planning Commission erred as a matter of law by failing to approve the Application for a Special Land Use Permit (the "Application".)

B. The Planning Commission violated Northville Zoning Ordinance 16.01b(3) by failing to consider and vote upon the Application in advance of – and separate from – the Planning Commission’s consideration of the proposed site plan.

C. The Planning Commission improperly failed to determine if the subject property could be used for a school.

D. The Planning Commission unlawfully failed to properly apply the criteria set forth in Northville Zoning Ordinance 16.01c to the proposed use of the subject property.

E. The Planning Commission unlawfully failed to comply with Northville Zoning Ordinance 16.01b (3) and 16.01c, by failing to provide specific reasons for rejection of the Application.

F. The Planning Commission unlawfully failed and/or refused to approve the Application, in violation of the Religious Land Use and Institutionalized Person’s Act of 2000, 42 U.S.C. 2000cc, et.seq.

G. The Planning Commission unlawfully failed and/or refused to approve the Application, in violation of the equal protection and due process rights of OLV as guaranteed under both the United States Constitution and the Michigan Constitution.

H. The Planning Commission unlawfully failed and/or refused to approve the Application, in violation of MCLA 125.584c (1). Since denial was based upon requirements and standards other than those set forth in Northville Zoning Ordinance 16.01c including, but not limited to, consideration of the number of times a week that students of the school attend Mass.

I. The Planning Commission erred in concluding that the proposed school did not meet the requirements of 16.01c of the Northville Zoning Ordinance.

J. Approval of the Application was required by; inter alia, Northville Zoning Ordinance 3.03 and 16.01.

6. GROUNDS FOR APPEAL: The appeal is being made on the grounds that

(a) Appellant alleges that there is an ERROR in the decision or order being appealed. (Article 25, Sec.25.04a)

7. STATEMENT REGARDING JUSTIFICATION OF THE APPEAL was attached.

Commissioner Bress summarized the remainder of the document.

• The site is zoned R-1B in which schools are a permitted use.
• Special Use Permit is legal within the district.
• Referenced the Planning Commission’s Public Hearings of January 6, 2004, February 3, 2004 and March 3, 2004 and are appealing the PC’s decision.

8. ZONING ORDINANCE SECTIONS for which a variance, exception or interpretation is requested: Sections 3.03, 16.01c.

9. NATURE AND EXTENT OF VARIANCE REQUESTED. A complete statement, including necessary drawings regarding the specific variance, exception or interpretation being requested is attached. Exhibits A, B, and C.

Letters from residents which were submitted to the BZA Commission were read into the record.

H. Lynn Stringer and Georgeann Stringer – 905 Spring Drive – against the proposed land use variance.

Tim and Jennifer Luikart – 521 W.Cady St – against the proposed OLV expansion.

Joelle Sarkozy – 672 Thayer – against the proposed expansion.

James Mulady – 340 S. Rogers – against the proposed OLV expansion.

Sean English - 17485 Farmcrest Lane - wrote in favor of the project.

Stapleton called for the representative for OLV to come forward.

Mike Nedelman, attorney for OLV, stated that despite a broad range of errors from the Planning Commission, the primary error was that the Planning Commission failed to approve the Application for a Special Land Use Permit sought by OLV. There is no legitimate legal basis for denying the use of the property on which to build a school. The most grievous error by the PC was its failure to consider the use of the property for a school separate from the site plan itself. Northville Zoning Ordinance Section 16.01b(3) provides "site plan review follows approval of a Special Land Use Permit." The ordinance does not require nor permit site plan approval or consideration prior to special land use approval.

• The PC agenda contemplated site plan review after consideration of the Special Use permit.
• The PC departed from the Northville Zoning Ordinance and applicable law in considering the site plan as an integral part of the consideration. Dissatisfied with the site plan, the PC rejected the use of the property for the school.
• The PC failed to make any findings of fact to support their decision.
• City’s own consultant wrote "The application for Special Use Permit generally meets the standards of 16.01c."
• Unsubstantiated fears of those opposed to the new school building are not evidence nor sufficient to deny OLV use of its property.
• OLV’s church has been an integral part of the community since the 1920’s, and the school since 1952. By definition the school is allowed in an R1- B zoning district.
• PC did not find and could not find that the proposed use and location failed to meet the requirements of 16.01c. Therefore those standards were met.
• Denial of the Special Use permit violates the local zoning ordinance, Federal law, and the Michigan and United States Constitutions.
• The conduct of the City’s attorney, in drafting resolutions for consideration by the Planning Commission after the decision in a belated effort to justify and remedy the errors of the decision of the Planning Commission, is in itself a violation of OLV’s due process rights.

Therefore, the PC erred, as a matter of law, in denying the applicant a Special Land Use Permit. The Planning Commission did not have the discretion to deny this Land Use Permit. Assuming the decision is reversed, the legal obligation is fulfilled. If the use is approved then the PC should be directed to approve the site plan. OLV is willing to go back to the PC and take into consideration their suggestions and modifications to the site plan.

Mr. Nedelman continued that administratively OLV objects to:

• Commissioner Gazlay’s participation in this hearing in any manner. He was a participant in the PC decision as well as the maker of the motion to deny the Special Land Use Permit.
• Commissioner Rae’s participation because he has sought a property tax reduction because of the proximity of his home in relation to the OLV property.

Chairman Stapleton responded that in the City Attorney’s opinion there is no legal basis for Commissioner Gazlay to disqualify himself. Gazlay stated that it is inappropriate for him to do so.

Rae responded that what Mr. Nedelman said was true, but he still did not wish to withdraw from the hearing.

Craig Roney - 456 Orchard Drive - Submitted a document: Summary of Evidence Supporting the Northville Planning Commission’s Denial of a Special Land Use Permit for the Proposed Our Lady of Victory School . (#1) The document referenced City of Northville Zoning Ordinance Section 16.01.c Basis of Determination and the seven standards. Evidence indicated the applicant’s failure to meet all seven standards, but particularly Standards 1, 2, 3, 6 and 7.

Mr. Roney stated that he was a member of the Orchard Heights Home Owner’s Association, an incorporated organization ruled by a five member committee which includes Mike McClish, Jim Stuart, John and Joy Colizzi, and himself.

Richard Coolman – 717 Spring Drive – stated he is opposed to the OLV project. He addressed the seven criteria. Any building of 77,000 sq. ft. squeezed on two or three residential lots is not consistent with the residential neighborhood. The Master Plan references neighborhood schools; however, this is not a neighborhood school. By definition, a neighborhood school is one in a neighborhood serving students in the neighborhood, most of which live close enough to walk to school and all that wishes to be able to attend the school. This is a private enterprise, a private regional school. OLV has stated that 25 % do not live in the Northville Public School District. Most of the other 75% do not live within a one mile radius of the school.

Jim Stuart – 761 Thayer – spoke in support of the PC’s decision. He referenced a letter submitted for the official record. (#2)

State of Michigan

Court of Appeals

March 16, 2004

CASE LAW NO 242938 –Washtenaw Circuit Court

K.M. Young Corporation

vs

Charter Township of Ann Arbor

The case is similar in many ways to the OLV Special Use Determination in the City of Northville.

Mr. Stuart listed the following reasons in support of the PC’s decision:

• The size of the proposed school with 450 students is too large for a three acre parcel of land.
• The close proximity of the school to the neighbors.
• Traffic concerns were not addressed.
• Hundreds of letters and petitions from residents were submitted as testimony.
• The Master Plan allows many other uses for this land.

Jay Wendt – 217 St. Lawrence Blvd. – Chairman of the Northville Planning Commission stated that all of the Planning Commission’s documents and 14 – 15 hours of Public Hearing testimony stand as the official record in support the Planning Commission’s decision.

Mike McClish - 647 Thayer - spoke in favor of the PC’s decision. He referenced a handout (#3)

McClish summarized:

• 50% of those who spoke were not city residents.
• 69% of City residents who spoke were opposed to the expansion.
• 79% of Orchard Heights Neighborhood residents who spoke were opposed to the expansion.
• 1/3 of OLV parishioners in Orchard Heights who spoke were opposed to the expansion.
• A petition with 195 signatures, opposing OLV school expansion, was submitted for the record.

Mike Nedelman – OLV attorney – responded:

• The PC, in its decision, offered no Findings of Fact.
• The building of a new school is not a new use for the neighborhood.

Peter Donnelly – 22473 Morgate (Novi) – spoke in favor of overturning the PC’s decision.

Kerry Smith – 727 Thayer – spoke in support of overturning the PC’s decision. She is a neighbor, and she stated traffic is not a safety issue.

Eric Nichols – 19750 Clement - spoke in support of the PC’s decision. Three months of public comments helped and supported the PC’s decision. The review of the public comments persuaded the Planning Commission in upholding the rules and regulations of the Master Plan. This Special Use should not be granted.

Howard Payne – 211 St. Lawrence Blvd – spoke in favor of overturning the PC’s decision. He has never attended a parochial school, but is in favor of OLV. He asked that the several BZA Commissioners being questioned not be allowed to vote.

John Kaloustian – 870 W. Main St. – spoke in favor of the PC’s decision. As a previous Vice Chairman of Northville PC, living on the fringe of the neighborhood and owning property in the City, the development will affect both homes. The PC assessed the cases and acted appropriately. The facts which were presented by the homeowners substantiated that OLV did not meet the seven criteria of the Basis of Determination. The City of Northville’s Planning Consultant assessed that OLV met most of the seven criteria. When the Planning Consultant made the assessment, he had not heard any of the testimony nor had he heard any of the facts presented by the homeowners. The consultant does not make the determination, but the board does. Under equal protection of the law, he stated that he would like to oppose the appeal. Under Religious Freedom, OLV currently operates under a variance that has not been honored. They have an alternate site on which to build and they have never proven any substantial burden.

Cathy McCann - 21445 Holmbury - spoke in favor of overturning the PC’s decision. The PC violated the rights of OLV by not separating the site plan from the Special Land Use Permit. The PC erred in not finding that the land use was in harmony with the neighborhood; that the school already exists.

Donna Pallas -736 Thayer – spoke in favor of the PC’S decision. The evidence was provided by neighbors. These include a long list of zoning violations and enforcement problems which stretch back over a period of 19 years. The issues continue. She urged the BZA to come to the same conclusion of the PC so that the neighborhood and the City do not spend time and money over the next twenty years in vain attempts to get OLV to live up to their obligations.

Florie Ann Sylvestri, an OLV student - 24780 Monahan Drive - spoke in favor of overturning the PC’s decision. The students have been promised a new school for eight years. The school leaks. There is no gym, library, nor cafeteria. They have to eat at their desks and only have fifteen minutes for recess and have to play on the black top parking lot.

Sean Hughes - 703 Thayer – supports the PC decision. He cited the increase of traffic, both during school hours and after school hours with the use of the gym, as well as, the size of the structure as not being harmonious with the neighborhood.

Terry Simonme an OLV student - 44740 Deep Hollow Court - spoke in favor of overturning the PC’s decision. He stated that he will be attending Catholic Central and has never had a science lab. The students deserve the best. OLV is a Class B school.

Pamela Schulte -119 Rayson - spoke in favor of overturning the PC’s decision. The size of the building does not overwhelm the lot. There are many big homes in Northville that are on small lots. The professionals can alleviate traffic concerns.

Sean Fitzgerald - 20150 Woodbend Drive – spoke in favor of overturning the PC’s decision. The PC, in its decision, made at least three errors:

• OLV meets the size requirements according to the Ordinance.
• The City’s own traffic consultant, Hubbell Roth and Clark, had concerns about certain traffic issues, but they never said it was a threat to health, safety and welfare of the residents.
• OLV did not apply for a special use permit to operate a parking lot. They applied for a special use permit to operate a school.
• If there are parking issues, these can be resolved in the site plan process.

Mike Tolkacz an OLV student - 24241 Kingspointe (Novi) – spoke in favor of overturning the PC’s decision. OLV is harmonious and already in the neighborhood. Northville’s Master Plan states that schools belong in the neighborhood.

Owen Lee – 13053 S. Creek Drive (Wixom) - spoke in favor of overturning the PC’S decision. The Northville Public Schools are becoming overcrowded and are not prepared to handle the increased growth in the Township. The proposed OLV expansion will lessen that burden.

Linda Arnold - 20605 Northville Place Drive – spoke in favor of overturning the PC’s decision. OLV needs a new school, cafeteria, gym and the amenities that go with it.

Joy Colizzi – 841 W. Main - spoke in support of the PC’s decision. She asked how the Planning Commission could address Criteria #7 without looking at the site plan. Chairman Stapleton responded that he could not respond to her question at this time.

• The K.M. Young vs. Ann Arbor Township decision was discussed. The opinion of OLV’s attorney was that the case did not address the obligations of the municipalities under the Religious Land Use and Institutionalized Persons Act (RLUIPA.) There were many issues in that case which were not presented in court. The Young vs. Ann Arbor Township had many issues which were not separated in court. If this case were presented to that court the result would be different.
• Gazlay spoke as liaison between BZA and Planning Commission. PC was advised by the City Attorney, early in the process, that RLUIPA would not be part of the consideration in this case.
• Stapleton responded that counsel has advised that RULIPA is a valid BZA consideration.
• The BZA is to determine if the use of the land for a school is an appropriate land use and the site plan should not be considered as part of the Special Land Use Permit process.
• Concerns were expressed with Criteria #7 "Will meet all the requirements and standards of this ordinance and any other applicable laws, standards, ordinances and/or regulations." A site plan is required as part of the process although it is not acted on until after Special Land Use is granted.
• The action tonight is a request of the applicant to use the land to build a school. Is this an appropriate use for that piece of property?

Stapleton reiterated the question: "Did the PC err in denying the Special Land Use Permit?"

Gazlay listed some of the reasons in support of the Planning Commission’s March decision to deny the Special Land Use.

• There is an existing school on the east side of Orchard and it is not the PC’s intent to disrupt that function. Schools are a good thing.
• What was under consideration was the expansion to the west side of Orchard on a different property (not the present school property.) The PC deliberated over "was that property appropriate for school use?" The majority of the PC decided that it wasn’t because of the seven criteria.
• The PC did not determine that the two operations (east and west side) were separate.
• Many traffic concerns were expressed about the children traveling back and forth across Orchard for Mass.

Questions asked of the appealing party:

• Is it the school’s intent to move all educational activities to the west? Answer- The process of Catholic Education cannot separate the faith (mass) from the education. The intent is to build the school on the west side of Orchard.
• Will the existing school be torn down? (Many instances in the 1300 pages of review state as such.) Answer- Donald Samhat, OLV Attorney, stated:
• All classroom operations will be carried on the west side of Orchard.
• The convent will be torn down.
• Half of the existing school building will be torn down.
• Portion of the existing school will be retained for meeting rooms and church functions.
• The children will cross the street (Orchard) for Mass once or twice a week.

Motion by Bress, supported by Haveraneck to reverse the Northville Planning Commission’s decision to deny the Special Land Use permit for OLV and grant the Special Land Use Permit as requested by OLV, excluding any site plan. This Special Land Use Permit will be solely to allow the land to be used for a school facility. Roll Call Vote: Ayes: Ayers, Bress, Haveraneck, Jensen, Lokey, Maise, and Stapleton. Nays: Gazlay and Rae. Motion Carried.

The PC erred because it simultaneously considered the site plan and the use of the property. These two aspects were never separated. Too much invalid (subjective) data was taken into consideration.

Gazlay stated that the PC’s original motion (in March) was a general motion referencing sections of the Zoning Ordinance. Several weeks later, City Administration asked for Findings of Fact. Now, based on those Findings of Fact, the BZA has reversed it.

Stapleton responded that tonight’s determination is one of land use only.

Motion by Ayers, supported by Bress to reverse the Northville Planning Commission’s decision to deny the Special Land Use permit based on Section 16.01 b.(3) of the Northville Zoning Ordinance. The Planning Commission erred by allowing too much subjective or non validated data to be considered. The Northville BZA has determined that the use of the land, for the building of a school

1. Is harmonious and in accordance with the general objectives, or any specific objectives, of the Northville City Master Plan.
2. Will be designed, constructed, operated, and maintained so as to be harmonious and appropriate in appearance with the existing or intended character of the general vicinity and will not change the essential character of the area.
3. Will not be hazardous or disturbing to existing or future nearby uses.
4. Will be compatible with the adjacent uses of land and will promote the use of the land in a socially and economically desirable manner.
5. Will be served adequately by central public services and facilities or that the persons responsible for the establishment of the proposed use will provide adequately for any service or facility.
6. Will not create excessive additional public cost and will not significantly decrease property values of surrounding properties.
7. Will meet the requirements and standards of this ordinance and any other applicable laws, standards, ordinances and/or regulations.

Additionally, approval of the use of the land for a school is based on applicable City generated documents. When considered, the site plan will be in compliance with all applicable ordinances. Roll Call Vote: Ayes: Ayers, Bress, Haveraneck, Lokey, Jensen, Maise and Stapleton. Nays: Gazlay and Rae. Motion Carried.

Motion by Lokey, supported by Maise to adjourn at 10:05 PM. Voice Vote: Ayes: All: Nays: None. Motion Unanimously Carried.

Respectfully submitted,

P S Howard
Recording Secretary