Board of Zoning Appeals Minutes

CITY OF NORTHVILLE
Board of Zoning Appeals
January 5, 2005 – 7:30 PM Approved as amended 2-2-05
Northville Senior Community Center
312 W. Main Street

1. CALL TO ORDER:

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

2. ROLL CALL:

Commissioners:

Present:
Rolland Stapleton - Chairman
James Bress - Secretary
Chris Gazlay
Bill Lokey
Charles Ayers
James Haveraneck
Carol Maise
Larry Jensen
Luke Durst

Absent:
John Rae – excused
Connie Cronin – excused

Also Present:
Gary Word – City Manager
Jay Wendt - Chair. Planning Commission
Anne Smith – Planning Commission
Steve Kirk – Planning Commission
Tom Swigart - City Council
Jerry Mittman - City Council
Jeff Clark – MMRMA Attorney
Mary Massaron Ross – Attorney, Plunkett & Cooney

50 Residents

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

4. MINUTES:

Motion by Bress, supported by Durst to approve the minutes of the regular meeting of December 1, 2004. Voice Vote: Ayes: All. Nays: None. Motion Unanimously Carried.

CASE #04 - 18
John V. Colizzi
c/o Stempien & Stempien
315 N. Center Street
Northville, Michigan 48167

Commissioner Bress read the submitted written appeal. The appeal is of the final site plan approval granted on November 2, 2004 by the City of Northville Planning Commission for the Our Lady of Victory Catholic Elementary School. The school proposes to relocate from its current site to the property located at 116, 224, and 132 Orchard Drive and the property located on W. Main Street.

The applicant is returning from the December 1, 2004 BZA meeting and states at that time the appropriate documentation had not been submitted to the BZA members in order to make an informed decision.

1. Grounds for Appeal: Error in the decision or order being appealed. (Article 25, Sec.25.04a)

2. The complete statement for the grounds for appeal is attached:

ATTACHMENT TO JOHN COLIZZI’S APPLICATION TO BOARD OF ZONING APPEALS FOR REVIEW

3. ZONING ORDINANCE SECTIONS for which a variance, exception or interpretation is requested: Sections 19.01, 25.04. 26.01.1, 26.01.01.2, 26.01.3, 17.04.b, 17.01.3, 19.05.c6, 19.05.c2.a, 17.02.B.1, 17.02.B.3 17.04.h.

4. NATURE AND EXTENT OF VARIANCE REQUESTED: see attached:

ATTACHMENT TO JOHN COLIZZI’S APPLICATION TO BOARD OF ZONING APPEALS FOR REVIEW

Eric Stempien, the attorney representing John Colizzi, stated that there are eleven grounds for reversing the 11-2-2004 decision of the Planning Commission for the final site plan approval for the new OLV Catholic Elementary School on Orchard Drive. Mr. Stempien referenced a document titled APPLICANT’S SUPPLEMENTAL APPLICATION - BZA Case No. 04-18.

Chairman Stapleton stated that if any new information was contained in the document, it could not be submitted.

Discussion followed regarding the exact plans to be used.

The Chief Building Official offered the board his complete set of stamped, approved plans dated 11-2-2004.

Chairman Stapleton determined that the BZA would consider as approved the set of plans that the PC reviewed at its 11-2-2004 meeting, and as amended by attachmentsC-1, C-2, and SPA – 1.

Stempien stated that, although the decision was approved on 11-2-04 by the Northville Planning Commission, there were violations of the ordinance not addressed by the PC, or there were violations which were addressed, but remain in non - compliance. Of the eleven grounds listed in the application some are general, but at least five are substantial ordinance violations. Three will be addressed in detail:

1. Parking Stall Length - Section 17.01.3 and 17.04b – Northville Zoning Ordinance

The parking lot contains four rows of parking stalls, two of which are 17’ long. The zoning ordinance states that a stall should not be less than 9’ by 19’ (17.01.3 Residential off Street Parking). The parking lot violates the ordinance even though the project has been given a Special Land Use Permit within a residential district.

Nothing in the Zoning Ordinance gives the PC authority to provide an exception to the language as stated in the Zoning Ordinance. (Wortman’s response was that this was allowed because it has been done in the past.)

In a practical sense, there is a reason that the ordinance requires these dimensions. Originally when the ordinance was drafted (vehicles were shorter) the 19’ length probably allowed for a two foot overhang. Today many SUVs are more than 19’ long; some of which are 21’ long. (Wortman’s response was that the shortened length needs to be done because of limited space.) The limited space is self created by OLV because there is an attempt to put a 77,000 sq. ft. building on a three and half acre parcel of land.

Therefore: The Planning Commission exceeded its authority of the Zoning Ordinance or the State Statue by allowing a 17’ stall when a 19’ is required. The only body that has the authority to grant a variance is the BZA.

2. Total Parking Spaces Required – Section 17.02.B1 and 17.02.B3 – Northville Zoning Ordinance.

Parking for elementary and junior high schools is addressed in Section 17.01.B3 of the Zoning Ordinance. One parking space is required for each classroom and office, in addition to the required number for the auditorium, gym or assembly hall. The proposal submitted by OLV does not allow parking spaces for the gym. OLV’s application has only applied half of the ordinance and ignored the other half. The Ordinance states that one space per three seats of permitted capacity, or one space per six feet of bleachers, whichever is greater. The key language is which ever is greater. This site plan states there are 200’ of bleachers within the gym which calculates to 34 sparking spaces. The ordinance states there must be one parking spot for every three seats of permitted capacity. Wortman’s response was that since this will only be used as a gym the first calculation was applied which is one for every six feet of bleachers. The Michigan Building Code lists several different ways to calculate this number. This is clearly a violation of the ordinance.

Stempien continued by stating that, under the ordinance, the comments relating to its use are irrelevant and should not be considered. The ordinance requires that the greater of the two calculations should apply.

3. Traffic Safety Circulation issues - Section 19.05.c.2a – Northville Zoning Ordinance. Vehicular and Pedestrian.

Stempien requested that the onsite traffic study, provided by Jim Valenta who represents Midwest Consulting Inc. (amended 2-2-2005) be included in the packet which was not originally submitted to the PC. This particular traffic study is important and relevant to the sensitive vehicular and pedestrian traffic safety issues, and can be submitted according to state statue.

Under the state statue or "de novo review", the BZA has the authority (as the body or person from whom the appeal is taken) to look at, accept, or reject information as presented.

Stapleton countered that if this is a new analysis not presented to the PC, then the board was not interested in the study.

Stempien continued. The Northville Public Schools provide bussing for private schools within the city. Two different sized busses are used. He listed the safety issues involved:

The school district has confirmed that the 85’ passenger school bus requires a 31’ turning radius. The 65’ passenger bus requires a 28’ turning radius. These radii are not provided for on this particular site plan. The turning radius for the larger bus is 11’ short and 8’ short for the smaller. The buses will either not be able to make these turns, will make unusual maneuvers or will jump the curb. Any of theses maneuvers could impact pedestrian safety. Wortman’s report stated that the bus turning radii are effective, but does not explain what the word "effective" means.

Chairman Stapleton stated that there was no indicated turning radius on the site plan and the point fix center has not been provided.

Stempein countered that the Board is without full information and that information which is found in the report has been rejected for review.

Specific Objections to Mr. Colizzi’s application filed by OLV regarding "standing". Stempien continued:

Standing means a person has the right to do "what ever"; in this case to bring a law suit. Mr. Colizzi has the right to bring this appeal. Nedelman stated that the BZA shouldn’t even be hearing Mr. Colizzi, because he has no right to be heard. The Northville Zoning Ordinance states he does have a right to be heard.

Nedelman, the attorney for OLV, introduced himself and attorney, Elana Gloetzner. He stated that the Board has had the opportunity to read the objections to the appeal.

He further stated that the approved site plan contains all information required by the Northville Zoning Ordinance and that it complies with all the requirements of the ordinance and all lawful conditions imposed therein, and all other applicable state and federal laws. OLV is entitled to final site plan approval as a matter of law, and that approval should not be disturbed by this appeal.

Nedelman countered Stempien’s three claims:

Length of Parking Stalls. The two foot overhang is permitted by Section 19.05-i 3(d) of the Northville Zoning Ordinance. In approving this site plan the PC has done nothing improper or different than what they have approved for numerous other site plans. These are identified in Wortman’s supplemental reports in the configuration of the parking bays.

Number of Parking Spaces. Planning Consultant Don Wortman’s calculations of the number of spaces required for the gym are correct. The Zoning Ordinance is clear that the PC consider the linear feet of bleachers divided by 6 which results in a required number of spaces of 34. OLV has provided 83 parking spaces and the ordinance requires 70. OLV’s plan is fully compliant with the required number of parking spaces.

Traffic Safety Issues. The turning radii provided by the site plan are not dangerous. The driveway design complies with the American Institute of Architects’ Graphic Standards. The manner in which the turning radius is measured is not based on the radius of the curve.

The PC, in approving this site plan, met its legal obligation to approve a site plan that meets all requirements. OLV asks that you affirm that approval.

Chairman Stapleton asked for comments from the audience:

John Kaloustian – 870 W. Main St – referenced Northville Zoning Ordinance p. 26-19 under definitions: A parking space is described as 180 SQ. FT. Or 9’ x 20’. None of these spaces meet the ordinance. The Northville Zoning Ordinance states (p.1) when there is a discrepancy in the ordinance, the more restrictive calculation will prevail. The plan doesn’t meet the ordinance.

Mike McClish – 647 Thayer -asked if information had been submitted to the BZA from the Planning Consultant subsequent to the documentation provided to the PC. If there is additional information, this is a "de novo" review because the BZA Board has that documentation and has reviewed it. The issues presented to the PC in November, namely traffic, parking lot requirements and bus turning radii, should be reviewed by the BZA.

Harry Cusmano – 849 W. Main Street- stated the Planning Commission erred in its decision. It violates the Special Use Permit and the size of the building will destroy the property values of the homes around it.

Ken Koslowski – 835 W. Main Street - stated the Planning Commission erred in its decision. He submitted a letter for the official record. The school is located less than 25 feet from his property line and will have a significant impact on the quality of his life for the following reasons:

1. The property value will decrease. He submitted an appraisal indicating a decrease to the value of his property.

2. The school’s size overwhelms its three acre plot. The building will obstruct his view from the front, back and side of his home.

3. Average roof height is 29’ with the highest point almost 40’ high.

4. An HVAC sound study was never provided. The sound levels will certainly impact him.

5. Adequate landscape buffers have not been provided although they are required by the Master Plan.

6. Traffic is a concern. Vehicles already use his driveway as a turnaround.

7. Drainage plans have never been submitted. Water runoff from the OLV site may end up on his lot’s lowest point.

Other Concerns: (Renumber items 1-9 to 8-16. Numbers 8-16 are a continuation of Mr. Koslowski’s reasons. Amended 2-2-2005.)

8. The OLV parking calculations are based on an "anticipated use" and not calculated on square footage. Use cannot be regulated once the building is constructed.

9. The land use was approved for the Archdiocese, yet the school application is for the local parish. What happens when the Archdiocese says they want to use it?

10. OLV has never complied with an original parking variance granted several years ago.

11. The applicant is short on green space.

12. Safety issues relating to pedestrian and vehicular traffic have not been sufficiently addressed.

13 .Privacy and quiet space have been invaded, especially with the use of security cameras.

14. Approve a plan that is appropriate for the 3 ½ acre parcel of land.

15. The plan does not provide for dual use.

16. Grading Plans have not been submitted. The OLV property slopes significantly toward Mr. Koslowski’s property.

Paul Bacigal – 302 Orchard – stated that the Planning Commission erred in its decision. He addressed the length of the parking spaces. If vehicles overhang the parking spaces in front of his business in Livonia, they would overhang the sidewalk and would restrict pedestrian traffic. If cars were parked further back they would restrict vehicular traffic. There must be regulations to protect the safety of the children. The OLV parking spaces should be 9 x 20 feet as the Zoning Ordinance requires.

Brian Bayer – 738 Grandview – inquired about the calculation of the size of the parking space on the site plan. He questioned what the overhang area would be. Do the parking spaces on the site plan meet 180 sq. ft.? Is there no limitation on how much a car can overhang?

Commissioner Maise stated that the Zoning Ordinance does not provide for maximum dimension of encroachment or the required two feet of overhang. Further, the ordinance does not require for hard surface in the encroachment area. (Amended 2-2-2005.)

Donna Tinberg – 736 Thayer Blvd - stated that the Planning Commission erred in its decision. She is concerned about parking. She lives two doors from the Church and on Fridays and Saturdays she cannot park in front of her own house. If the Zoning Ordinance requires two calculations and only one has been done the BZA needs to affirmatively address the issue.

Steve Lomski – 45929 Northview – stated he is a building contractor and supports the PC’s decision.

He compared the homes across from Cranbrook, Detroit Country Day, or Kingswood schools to the homes surrounding OLV. Many people place the value of their home as it relates the proximity to private quality education. Value is in the eye of the beholder.

The size of OLV is allowed under the Special Land Use Permit.

The bus turning radius and parking requirements are similar to the public school parking lots. The Northville Public schools have downsized parking lots, spaces and turning radii.

Ann Cusmano – 849 W. Main - expressed concerns that City residents’ concerns are being ignored by city officials and commissions. The taxpayers, those directly impacted by a building of this nature, have had little or no say in the process. Lawyers and outside consultants are directing the project yet their homes are not the ones being impacted. Ms Cusmano stated that she is not opposed to a school being built, but is opposed to one not conducive to the existing residential neighborhood.

Amy Horton - 800 W. Main – lives directly across the street from the proposed new school, works at home, and witnesses the ongoing and existing traffic congestion all day. The traffic patterns and the traffic back up will directly impact her ability to exit her own property. When the size of the school increases so will the traffic.

Sean Hughes - 703 Thayer - stated that in April, 2004 the OLV project was given the Special Land Use Permit. In theory, a school could fit harmoniously in the area with minimal traffic. However, a 77,000 sq. ft. building will fail to do this. Traffic problems are created. Does the 77,000 sq. ft. plan fit into the Master Plan? It is disheartening that OLV appears to be running the City.

Dan Horton - 800 W. Main - appealed to the BZA Commission to consider all information presented. As public servants it is the BZA’s responsibility and obligation to do so.

Mike Currie - 728 Grandview - inquired about the previously submitted Midwest Consultant Parking Study. OLV currently has traffic issues. With the increase in the size of the school, the traffic conditions and problems will also increase. Please consider all traffic studies that have been presented.

Kevin Jordan – 370 Eaton Drive – stated he is confused with the definition of the size of a parking space. He asked what interpretation of a parking size is acceptable. Shouldn’t the interpretation be applied for both sides of this case?

Stapleton responded that there is flexibility provided in the language of the ordinance and, in common practice, flexibility in the design industry which designs parking lots. The 2003 Michigan Building Code is being followed.

Did OLV make one or two parking calculations? If two, what was "the greater" number?

Nedelman answered that there are no seats of permitted capacity – simply linear feet of bleachers, or the greater of zero to 34. Stempien argues that there is an unknown greater than 34.

How do we know that the capacity won’t change? Will the facility be rented out for alternative uses?

Nedelman replied that the gym being constructed is for the use of the elementary school. He agrees with Planning Consultant Wortman’s calculations. The number of parking spaces meets the requirements for the use of the building.

How will the community regulate or control the use? Can we put a condition on the motion?

Stapleton stated that the word "seats" means fixed seating and not portable seating. The Chief Building Official affirmed that the fixed seating is correct according to the fire code.

Discussion followed regarding the definition of seats of permitted capacity.

Stempien agreed that the argument has to do with the definition of what is a seat of permitted capacity. Capacity is not defined in the Zoning Ordinance. Permitted capacity is there to modify the word "seat". Permitted capacity means the number of people you can put inside a building. Michigan Building Codes specifically defines how to determine seats of permitted capacity with regard to placement of tables and chairs. The OLV church currently has portable chairs, and does not have permanent seating in terms of pews. Under this analysis OLV would not have to have any parking for the church.

Gazlay stated that originally the OLV application referred to the school’s gym as a Christian Life Center. At the request of the applicant, that phrase has been dropped and it is now called a gymnasium. The intent is to include 200’ of bleachers.

How have the levels of service changed from the attachment of the August 6, 2004 Valenta report?

How did the PC verify that the internal traffic circulation for the parking lot was adequate?

Gazlay responded that three traffic studies have been presented to the PC. All were considered and discussed.

Jay Wendt, Planning Commission Chairman, stated that to his knowledge the three studies which were presented were for the initial building and not the final site plan.

Ann Smith, Planning Commissioner, stated that the traffic studies were for the initial site plan. When the second site plan was submitted to the PC, OLV did not provide another study.

Jay Wendt stated that certain items cannot be discussed because of pending litigation.

Stempien offered that the only traffic report that he is aware of is the one submitted after the Special Land Use was granted.

Commissioner Ayers stated that that traffic issues have been reasonably addressed.

Commissioner Maise expressed traffic concerns based on the size of the proposed building design, and traffic from the existing school, if it should remain Ms. Maise expressed concerns about the technical issues with the screening wall and the interpretations of the two different standards in the ordinance – Section 17.04.

Brian Baer - 738 Grandview - stated that all 11 points listed in the appeal should be considered.

Mike McClish – 647 Thayer - stated that there is documentation on an audio tape that one half of the existing school will be removed.

Kevin Jordan - 370 Eaton - asked the BZA Commission how a decision could be made if all the information, specifically the traffic study, is not considered.

Stapleton stated that the legal responsibility of the BZA is to determine if there is support on the record for the original decision made by the PC.

Motion by Bress, supported by Haveraneck to approve the11-2-2004 actions of the Northville Planning Commission regarding the approval of the OLV site plan because there is adequate support on the record for the Planning Commission’s decision. Roll Call Vote: Ayes: Ayers, Bress, Durst, Haveraneck, Lokey, and Stapleton. Nays: Gazlay, Jensen and Maise. Motion Carried.

Mary Massaron Ross stated that the BZA, in respect to Findings of Fact, can incorporate the ideas of the discussion of the reports into the findings of fact or be more specific, and list them.

Motion by Ayers, supported by Haveraneck that after hearing the evidence offered by the appellant and other interested parties and, after reviewing the record of the Northville Planning Commission in the granting of site plan approval for the new OLV School, the Northville BZA has determined that there is adequate and reasonable support on the record for the Northville Planning Commission decision regarding traffic, parking, general use and level of professional consultation including the Planning Consultant and administrative support and that the plan does not violate the Master Plan. Roll Call Vote: Ayes: Ayers, Bress, Durst, Haveraneck, Lokey and Stapleton. Nays: Gazlay, Jensen and Maise. Motion Carried.

Motion by Ayers, supported by Lokey to adjourn at 9:50 PM. Voice Vote: Ayes: All: Nays: None. Motion Unanimously Carried.

Respectfully submitted,

P.S. Howard,
Recording Secretary