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MARION
TOWNSHIP
Zoning
Board of Appeals
June 7, 2004
MEMBERS PRESENT: John
Lowe, Larry Fillinger, Linda Manson-Dempsey, Dan Lowe, and Dan Rossbach
MEMBERS
ABSENT:
None
OTHERS
PRESENT:
Mike Kehoe
, Township Attorney
Annette McNamara, Zoning Administrator
*************************************************************************************************************
CALL TO ORDER
John Lowe
called the meeting to order at
7:30 p.m.
APPROVAL OF AGENDA
The members
of the Zoning Board of Appeals introduced themselves.
Chairman Lowe reminded members of the
audience
about the sign-in sheet.
APPROVAL OF MINUTES
Zoning Board of Appeals,
April 5, 2004
OLD
BUSINESS
None.
NEW
BUSINESS
ZBA Case #3-04—
Marion
Oaks Golf Course
Tom Kalas, representing the petitioner, made a
presentation to the ZBA requesting a rezoning of Marion Oaks Golf
Course from Suburban Residential (SR) to Urban
Residential (UR). The petitioner
has also submitted an application
for a PUD overlay, which has not been processed by the
township due to the initial rezoning request.
Mr. Kalas
said the conceptual plan has been presented to
the Planning Commission. It
includes a commercial center on the
corner of
Wright Road
and D-19. They are also
proposing single-family lots of different sizes, and condominium
sites. The
proposal calls for 272 single-family attached units (four-plexes), the
clubhouse would be left in place.
The plan also calls for a swimming pool, softball and
soccer fields, and 358 single-family detached units.
The lot
sizes ranges from 55 feet to 70-80 feet.
There are a total of 630 units. The
corner of
Wright Road
and D-19 would
be the location for the proposed commercial center,
approximately 10 acres with a 50,000 square foot center.
Mr. Kalas is asking for a
variance on certain zoning criteria.
He made a presentation to the township
Planning Commission, a
public hearing was held, and the PC recommended denial.
The request then
went to the Livingston
County Planning Commission, who recommended denial.
Finally, the request
went to the township
Board of Trustees, who denied the request.
Under a Michigan Supreme Court
case (Paragon Properties
vs. City of
Novi
), the applicant is required to request a variance from the
ZBA in order to exhaust
all administrative remedies.
This is a step this is necessary before a suit can
be filed with the
Livingston County Circuit Court.
Mr. Kalas
believes the township has established a
precedent for rezoning
for The Meadows,
Woodberry
Park
, and Hometown Village of Marion.
Mr. Kalas’ concept plan
calls for 2.88 units per acre.
Hometown
Village
has 3.34 units per acre,
The Meadows has 3.51
units per acre, and Woodberry has 3.99 units per acre.
He is
seeking a request for variance from certain provisions in the zoning
ordinance, which if granted,
would
allow the property to be developed under the criteria in the
UR
zoning. Specifically, the
first
variance
the applicant is seeking is Section
8.02 F 1 b—(minimum net lot area not less than 20,000
square
feet with public sewer in the SR district).
He is requesting the variance to allow minimum lot
size of
15,000 square feet as provided in Section
8.03 E 1 of the
UR
zoning district. He is also
requesting
a variance for the frontage/width of the lots that are required under SR
versus UR, from the
minimum
frontage of 85 feet contained in the SR zoning, Section 8.02 F 2 b, to minimum frontage of
75 feet
contained in the UR zoning, Section
8.03 E 2. He is also seeking
a variance to the front yard
setback
from 35 feet in the SR zoning district, Section 8.02 F 3 b 1, to 30 foot front yard setback in the
UR
zoning district, Section 8.03 E 3 a.
Linda Manson-Dempsey wanted to confirm
that the request includes a 50,000 square foot retail center at the corner
of
Wright Road
and D-19. Mr. Kalas said it is
proposed. Ms. Manson-Dempsey
said if this request was granted,
that plan would proceed.
Mr. Kalas said yes, but the PUD application would have to be
approved. Ms.
Manson-Dempsey has concerns with
traffic generated by a commercial center and the new high school.
Chairman
Lowe wanted to clarify that Mr. Kalas
is requesting a variance to allow lot frontages as low as 55 feet.
Mr. Kalas
said yes, the PUD would allow it.
Dan Lowe asked Mr. Kalas if he could provide any information showing
numbers
or percentages to support the claim
that the property can’t be developed under the current SR zoning.
Mr. Kalas
said no, the current financials of the
company and discussions held with those who operate the golf course
indicate
that it’s not economically feasible.
Dan Lowe said his question was about developing under the current
zoning, not
operating it as a golf course.
Mr. Kalas said the SR zoning would not give them the flexibility and
smaller lot sizes
they desire.
Ms. Manson-Dempsey asked Mr. Kalas how many lots they could have with
the current zoning.
Mr. Kalas said he didn’t know.
Ms. Manson-Dempsey asked if the Planning Commission was given that
information.
Chairman Lowe said part of the
requirement is to demonstrate that it’s not feasible to develop under the
current
zoning, which was not presented.
A PUD with SR zoning is an option, and there are many examples within
the
township.
You can get a mix of density in the SR zoning using the PUD option.
Dan Lowe asked Mr. Kalas if the
applicant was aware of what the
property was zoned with it was purchased.
Mr. Kalas said yes; however, knowing
what the property is zoned is not
relevant if the zoning is unconstitutional.
Call
to Public
Peggy Neeley, 3220 Osprey:
Ms. Neeley asked Mr. Kalas if he lived in
Livingston
County
?
Mr. Kalas said no.
Ms.
Neeley said her problem is the developer buys property, strips it, develop
it, and then leave the area, and
leave
it up to the residents to build roads, more schools and try to find jobs for
more people.
Marion
Township
and
all the residents have said they don’t want this development.
Is this just about money?
The property was
zoned
SR and now you want to change it to build three times as many homes.
It’s not right and I say we don’t
allow
it.
Pat
Macaluso,
4875 Pinckney Road
:
Mr. Macaluso questioned the overlay compared to the original
presentation.
Is it
the same as presented to the Planning Commission?
Chairman Lowe said yes. Mr.
Kalas said it’s just a concept
plan.
Mr. Macaluso said he opposes this.Chairman Lowe emphasized that the plan
isn’t really what’s being looked at—
it’s
just conceptual.
Betty
Sorg,
2005 Pinckney Road
:
Mrs. Sorg owns 40 acres north of the subject property.
Mrs. Sorg has had to
fight
with
Hometown
Village
for three years regarding drainage. Why
doesn’t the township do something? Chairman
Lowe
said there was a problem with obtaining right of ways, etc.
Chairman Lowe said is was a very complicated issue
and it
wasn’t a good situation. Mrs. Sorg asked where the run-off would be from
this new development, and she doesn’t
want
it coming north to her property.
Rodney
Beckwith,
1980 Pinckney Road
:
Mr. Beckwith said
Hometown
Village
is on his northern lot line and he’s
put up
with dirt ever since the project started.
Mr. Beckwith’s biggest concern is the infrastructure.
We need protection
from
these builders.
Bob
Sorg,
2005 Pinckney Road
:
Mr. Sorg owns 40 acres between Woodberry and the golf course.
Mr. Sorg said
the
proposed development doesn’t fit in, and is concerned he will be zoned
right out of his property. Mr.
Sorg there’s
plenty
of room to develop the property if they don’t have to make the big bucks.
If this property is rezoned, they could
potentially
have 1740 units. He is
definitely opposed to the project. The
infrastructure can’t handle this development.
Ms.
Manson-Dempsey wanted to confirm the number Mr. Sorg stated as 1740
potential units. Mr. Sorg said
he
believes
that is correct.
Mary
Ann Bahr,
3201 Grass Lake Court
: Ms.
Bahr asked the Zoning Board of Appeals to deny the Marion Oaks
Golf
Course rezoning request for the following reasons:
I question the petitioner’s request for the variance in that I
don’t
think
that Marion Oaks is not a viable golf course.
If better marketing and more competitive pricing of golf rates
and
banquet
facilities were implemented, they would have more business than they could
handle. If they wait just a
few
more
months, there will be enough development going on around
Livingston
County
and we’ll have more golfers than
they
know what to do with. The parcel
lends itself much better to Rural Residential or low density housing
that’s fitting
with
the surrounding area. The new
zoning is excessive in its density and it does not follow the township’s
Master Plan.
The
parcel can easily and economically be developed as rural or suburban low
density residential. For the
health,
safety
and welfare issues that would drastically increase traffic that would be
caused on D-19 and to the surrounding
area.
The site lies just outside of the sewer and water district, and while
that is unfortunate for the petitioner, those
taps
have been allocated to other areas that fit the Master Plan already.
I am a little concerned with developers
purchasing
land that they know full well does not fit into their intended use, and then
turn around and threaten to file suit,
not
only against our township, because when they threaten the township, they are
threatening me, a tax-paying citizen.
We
are but a small community in a vast nation.
We need to look for ways to truly preserve rural
America
for posterity
in a
different manner than many public-interest groups and policy makers are
recommending. There must be
someplace
where
you can still say “let’s go take a ride in the country.”
Thank you for your time and consideration, and I request
that
you deny this petition.
Lisa
Barber,
848 Wright Road
:
Ms. Barber feels the developer should be glad the property is zoned
SR. If the
township
had known about the new high school, this property would have been left
Rural Residential. Suburban
Residential
is even overwhelming. The
proposal is too clustered and too congested.
Louise
Dodd, 1722 Fox Ridge:
Mrs. Dodd commended the Board for listening to the residents and
responding to the
residents
by saying enough is enough. We
don’t want this higher density, urban development.
(Close Call to Public)
Larry
Fillinger asked what impact the ZBA has if it did change the zoning.
Does the ZBA have the ability to do that?
Mr.
Kehoe said technically, that is correct.
However, the applicant is asking for variances from the setbacks and
so
forth,
so the requests are dimensional variances.
It’s also correct that while they are requesting dimensional
variances,
if the
ZBA were to grant everything asked for, in his opinion, it would be a
rezoning of the property. Mr.
Kehoe clarified
the
situation by saying there is case law that requires the applicant to be
here. As a property owner, they
are entitled to
request
a variance. A property owner
also has the right to challenge whether the zoning the township has
established
for
this property is legal and constitutional.
The ZBA still has to follow the procedures in place for considering a
variance.
Ms.
Manson-Dempsey asked where this goes from here.
If the ZBA says yes, it goes as planned.
If the ZBA says no,
what
happens? Mr. Kehoe said the
applicant will then file suit against the township to contest the validity
of the
township’s
action. Ms. Manson-Dempsey asked
who will take over the road issue?
Wright Road
and
Pinckney Road
cannot
support this development. Mr.
Kehoe said that would probably be something thrown into the mix of the
litigation.
Traffic
concerns are something you can legitimately think about in this regard.
On the other hand, those are more
planning
issues as opposed to ZBA issues. Chairman
Lowe pointed out that all of those issues were discussed during
the
Planning Commission meetings.
The
ZBA considered each of the following issues:
- How
the strict enforcement of the provisions of the Township Zoning
Ordinance would cause an unnecessary
hardship and deprive the
owner of rights enjoyed by all other property owners owning property within
the same zoning
district.
Ms. Manson-Dempsey said under SR they have the right to
develop, they have the right to apply for a PUD.
They aren’t being told they can’t develop it.
Chairman Lowe said they would be allowed to do what all other
property
owners within the same zoning district can do.
- The
conditions and circumstances unique to the property, which are not
similarly applicable to other properties in
the same zoning
district.
There is nothing unique to the property.
The only difference is the density.
- The
conditions and circumstances unique to the property were not self
created.
The issue is being self created based on the density
requested. Mr. Kehoe also
clarified that the property was zoned
SR at the time of purchase, although the owner has the right
to challenge the ordinance.
- Why
the requested variance will not confer special privileges that are
denied other properties similarly situated
and in the same zoning
district.
The rezoning would confer special privileges.
It could make the township responsible to carry forward that zoning
on
other parcels.
- Why
the requested variance will not be contrary to the spirit and intent of
this zoning ordinance.
It is contrary. If
this was intended, it would have been planned in the ordinance.
Chairman Lowe said it is explicitly
contrary. Ms.
Manson-Dempsey read Section 8.02 A, which states “It is the intent of the
Suburban Residential District
(SR) to provide opportunities for higher density
residential development typically associated with a suburban land use
pattern. This
district includes areas of the Township, which are currently served by a
higher level of public services as
compared to most of the balance of the Township, and these
additional services permit a higher intensity of residential
development while protecting the public health, safety, and
welfare. This district is
intended to implement the planned
future land use pattern of the Marion Township Comprehensive
Plan in the northern portion of the Township where a
Suburban Residential Area is proposed and intended to
accommodate residential developments of a density of one
(1) dwelling unit per acre or greater.
The Suburban Residential District is intended to both permit the
development of
suitable vacant land for residential purposes while also
preserving the residential character of existing area
neighborhoods.” Dan
Rossbach asked if
Woodberry
Park
was part of the Master Plan. Chairman
Lowe said it was
rezoned to
UR
because it was within the sewer and water district, and in the northern
section.
- The
difficulty shall not be deemed solely economic.
Economics appear to be a major part of the request.
The applicant didn’t look at developing under SR as an option.
They haven’t presented any numbers showing that it’s not
economically feasible.
Mr. Kehoe said the
area of
unnecessary
hardship needs to be elaborated on. There’s
a reference in the zoning ordinance to whether or not this
would
create an unnecessary hardship. Also,
part of the variance being requested could also be considered a use
variance,
and the while the township zoning ordinance says the ZBA can’t grant use
variances, there have been recent
court
decisions that talk about taking a look at unnecessary hardships and what
they are. There are four factors
that
should
be discussed:
- Whether
or not the property can be reasonably used in a manner consistent with
existing zoning.
Chairman Lowe said this has been discussed, but would it be
considered an unnecessary hardship for the developer to
develop this under an SR/PUD, which has been suggested by the
township? Ms. Manson-Dempsey
said if the developer
applied for an SR/PUD, it would go to the Planning
Commission, they would provide drawings, etc.
They have the right
to do that. The
property could also be split and sold as ¾ acre lots with a private road.
The township isn’t depriving the
owner of the right to split the property and start
selling home sites.
- Is
the situation due to unique circumstances that is not a result of
general conditions in the neighborhood.
Ms. Manson-Dempsey said the proposal would create a very
unique circumstance for the neighborhood. Chairman Lowe
said it is isolated and would create a spot zoning situation.
The general conditions of the neighborhood are more rural
and less dense than what is even allowed under SR zoning.
- Whether
the use authorized by the variance would alter the essential character
of the locality.
The site itself would change drastically with greater
density, retail, etc. Currently,
the property is a wide-open golf
course in an SR area, surrounded by farmland on the north and
south, and large lot parcels to the east and west.
- Whether
the hardship is a result of the applicant’s own actions.
Ms. Manson-Dempsey said there is no hardship.
Chairman Lowe said this parcel is not unique in any way from
any
other parcel in the SR district.
The township also
offers the Open Space option for development which would allow
flexibility.
Chairman Lowe said this has been suggested to the applicant as a
viable option. Finally, if the
variance
request
were granted, the applicant would gain special privileges in density,
minimum lot sizes, setbacks and uses
prohibited
within the zoning district—it would totally negate the township’s zoning
ordinance.
Motion
Larry Fillinger motioned to deny the variances for
Marion Oaks Development LLC for the following reasons:
1.
The applicant has not
adequately shown it meets the requirements of Section
5.05 C 1 because the
application of the current
ordinance to the property in question does not deprive the applicant of
rights
that are commonly enjoyed by
other property owners in this district.
The fact is that the Township has
told the applicant that it can
develop the property under SR zoning with a PUD option and this has
not
been acceptable to the
applicant. There are numerous
other properties not only in the area, but in the
Township, that are zoned SR and
the applicant is not being treated differently from those property
owners.
2.In regard to
paragraph 5.05 C 2, there are no
circumstances or conditions that are unique to this particular
parcel in regard to its
application. The parcel is
capable of being developed for single-family residential
homes, it can be used
for a PUD, it simply can’t be developed at the density that the applicant
wants. These
same problems could be
faced by other adjacent parcels in this zoning district under the same
request that is
being presented by this
applicant. Furthermore, not only
is there a common nature of this problem in the
immediate area, but
that problem exists in many other areas of the Township where there is SR
zoning.
3.In regard to paragraph number 3 of Section
5.05 C, the conditions and circumstances that the applicant is
complaining of were
self-created because the applicant purchased this property knowing full well
what the
zoning was at the time
it purchased the property. The
applicant must be considered to have known what the
zoning was and what
type of development the existing zoning would allow.
4.In regard to
paragraph 4, the granting of the requested variance would confer special
privileges on this
property that are
denied to other properties in the district because it would allow t his
applicant to have
significantly greater
density that is permitted by the zoning district.
If this variance were to be granted, then
the applicant would
definitely obtain significant special privileges in the form of density,
minimum lot sizes,
set backs, and other
special privileges. Furthermore,
it could open the door to allowing uses within the district
that are
prohibited in this district by the zoning ordinance.
The applicant is seeking to have attached housing,
commercial development,
and other special privileges that are not generally available in the SR
district.
5.As to paragraph 5.05 C 5, the
granting of this variance would be contrary to the spirit and intent of the
zoning
ordinance.
Part of the intent of the suburban residential zoning district is to
permit both the development of
suitable vacant land
for residential purposes, while also preserving the residential character of
existing
neighborhoods.
In this particular area, the residential housing is characterized by
larger lots existing in
certain small tracts of
land and there are a significant number of 10 and 15-acre parcels for which
this type of
density would be
inconsistent and incompatible. The
applicant makes reference to nearby developments such
as the Hometown Village
of Marion, Woodbury Park, and The Meadows, but the fact of the matter is
that The
Meadows and Woodbury
Park are located within the UR zoning district and were rezoned because it
was
consistent with the
Township’s Master Plan. The
Hometown Village of Marion was developed as an SR
development; therefore,
it is not truly appropriate or accurate for the applicant to claim that
those
developments are
comparable to the applicant’s property.
6. The last factor, 5.05
C 6, that needs to be examined is where or not the difficulty is deemed
solely economic.
In this particular
case, the applicant has the opportunity to develop the property with a PUD
under the existing
zoning.
The applicant also has the opportunity to take advantage of the
Township Open Space Cluster Housing
Project, which would
allow it to develop a significant number of single-family residential houses
on the
property while
maintaining open space and achieving many of the goals that the applicant
claims it wants to
accomplish in its
request for a variance. The
applicant has not provided any documentation to indicate that it
can’t develop the
property reasonable with a reasonable financial return under the existing
zoning.
7. Lastly, the
applicant’s request essentially seeks to accomplish what could be
considered a rezoning of the
property.
While the application may be termed as a “request for a
variance,” if the Zoning Board of Appeals
were to grant this
relief, it would in effect rezone the property and the Zoning Board of
Appeals is not
authorized to rezone
property.
8. Additionally, the
request by the applicant could result in the granting of a use variance for
this property.
In reviewing the four
factors that should be considered in order to grant a use variance, (1) the
applicant has
not shown the property
can’t be used consistent with existing zoning.
Current zoning will allow for a PUD
development; (2) the
applicant’s situation is not unique because it shares a very similar, if
not identical,
situation with other
property owners in the area, as well as other properties in the Township
that are zoned SR;
(3) the character
of the area would be seriously changed by the increased density,
multiple-family dwellings
and other development
the applicant seeks; and (4) the hardship is the result of the applicant’s
own actions
because the property
was zoned as SR when the applicant purchased the property and the applicant
h as not
shown the property
can’t be used as zoned. Therefore,
the applicant has not established that it is entitled to a
use variance.
Additionally, under the Township zoning ordinance, the Zoning Board
of Appeals is not
authorized to grant a
use variance.
Dan
Lowe seconded. Roll
call vote: Larry
Fillinger, Dan Rossbach, Linda Manson-Dempsey,
John
Lowe, Dan Lowe—all yes.
Motion carried 5-0.
Adjournment
Larry
Fillinger motioned to adjourn the meeting at
8:50 p.m.
Linda Manson-Dempsey seconded.
Motion carried 5-0.
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