Paw Paw Township Zoning Board of Appeals Minutes May 16, 2018 Chairman Arbanas called the Paw Paw Township Zoning Board of Appeals meeting to order at 7:06 P.M. on May 16, 2018 at the Township Hall. PRESENT: Phillip Arbanas, Ron Cicchini, Neil Boff, Tom Palenick, and Joe Muvrin. ABSENT: None. ALSO PRESENT: Bill Johnson (Farmer), Linda Felcyn (Landowner/Farmer), Charles Felcyn (Landowner/Farmer), Steve Holden (Landowner/Farmer), Lauryn Rosseau (Resident/Farmer), George Molter (Landowner/Farmer), Scott Totzke (Land Renter/Owner/Farmer), Molly Garland (Landowner), Adam Garland (Homeowner), Theodore Felcyn (Landowner/Farmer), Anna Felcyn (Landowner/Farmer), Steven Rigoni (Landowner/Farmer), Randy Cramer (Farm/Worker), Bert Gale (Zoning Administrator), and Kelly Largent (Zoning Administrator). APPROVAL OF THE AGENDA: Motion by Palenick supported by Murvin to approve the agenda. The motion was unanimously approved. APPROVAL OF MINUTES: March 21, 2018: Motion by Cicchini, supported by Boff to approve the minutes as submitted. The motion was unanimously approved. PUBLIC COMMENT: None OLD BUSINESS: None NEW BUSINESS: The Chairman reviewed the application.
A variance request to the lake side setbacks. The proposed construction is for a roof over an existing concrete patio for an existing residence. This parcel is located in the Waterfront area zoning district (WFR). The lot is a legal nonconforming lot. The Chairman opened the Public Hearing at 7:09 PM. Mr. Garland explained the request. They are planning to add a roof over the concrete patio between the two decks. His house is on the East side of the lake. The roof would only extend to the edge of the patio and no farther. Muvrin asked if this was not enclosed. Mr. Garland stated yes, it is not enclosed. Palenick asked if it was a problem with water leaking into the structure. Mr. Garland stated, yes, the wind keeps pushing the rain against the house. Chairman stated that a variance was given for the original house and asked if the roof was to go over the existing concrete pad. Mr. Garland stated that the posts would be against the edge of the concrete pad and to roof would go no farther than that. Boff shared that he has four-foot drifts at his house and the roof over at his house keeps the drifts away from his house. Muvrin asked which neighbor sent the letter from. Garland responded the neighbor to the South. The Chairman read the letter into the record. Garland stated that the lake jogs and the neighbor is in line with them and the neighbor s deck is closer. Boff stated he doesn t have a problem with granting this variance. Cicchini and Palenick agreed. The Public Hearing was closed at 7:30 PM by the Chairman. The Board reviewed Section 42-364(a) and made the following findings:
1. a. That special conditions and circumstances exist which are peculiar to the land, land use, structure or building in the same zoning district so as to present such a unique situation that a precedent will not be established for other properties in the district to also ask the same or similar change through the zoning appeal procedure. Yes. The shape of the lot and there is a very small buildable area. b. That literal interpretation of the provisions of this chapter would deprive the applicant of rights commonly enjoyed by other properties in the same zoning district under the provisions of this chapter. Yes. c. That granting of the variance requested will not confer on the applicant a special privilege that is denied by the provisions of this chapter to other lands, structures, or buildings in the same zoning district. Not it will not. d. That no nonconforming use of other lands, structures, or buildings in the same zoning district, and not permitted use of lands, structures or buildings in other zoning districts shall be considered grounds for the issuance of a variance. No other nonconforming use of lands, structures, or buildings in the same zoning district or permitted use of lands, structures or buildings in other zoning districts were considered grounds for issuance of these variances. 2. The Zoning Board of Appeals found that the requirements of this chapter have been met in the zoning district in which it is located by the applicant for the variance requested. 3. The Zoning Board of Appeals found that the applicant s reasoning did justify the granting of this variance. The Board noted that this is the minimum required to protect the building from further water damage. The Board also noted that a letter from the neighbor had been received supporting the project, the public hearing had been noticed in the paper and there was no other comment from the audience other than the applicant. 4. The Zoning Board of Appeals found that the granting of the variance would be in harmony with the general purpose and intent of this chapter and will not be injurious or otherwise detrimental to the public welfare of the zoning district in which it is located. 5. The Zoning Board of Appeals had no conditions to be placed on the requested variances. 6. The Zoning Board of Appeals found that the use of a single-family residence is allowed in the zoning district. 7. a. The Zoning Board of Appeals found that the requested variance is applicable to only the property under the ownership control of the applicant.
b. The Zoning Board of Appeals found that the requested variance is not the result of an action taken by the applicant to specifically create the conditions leading to the request. c. The Zoning Board of Appeals found that the requested appeal would not be contrary to the intent and purpose of any part of this chapter. d. The Zoning Board of Appeals found that the requested variance would not overcome adversity created by this chapter to the extent that the property cannot be used for any reasonable purpose. e. The Zoning Board of Appeals found that granting the requested variance would not overcome the possibility of economic considerations to the extent that confiscation or the lack of reasonable profit ability of the property will not result, but, if the variance is requested to simply make its use unreasonably valuable, or profitable, the variance has no standing if it is found that these are the only reasons the variance is requested. f. The Zoning Board of Appeals found that the property in question is unique or different from all other properties in the same zoning district as to find it necessary to grant the variance in order to give the unique property the same privileges of use as that which is both permitted and enjoyed by all other properties in the same district. g. The Zoning Board of Appeals found that granting the requested variance would not create a precedent which can be applied generally to other properties in the same district. h. The Zoning Board of Appeals found that granting the request will not cause a substantial adverse effect upon adjacent properties in the district or this chapter in a more general way. i. The Zoning Board of Appeals found that granting the requested variance would not unreasonably alter the essential character of the zoning district in which it is located. j. The Zoning Board of Appeals found that the requested variance will not create a hazard to the public health, safety and general welfare of the persons in the zoning district and the Township generally. k. The Zoning Board of Appeals found that granting the requested variance will not produce nuisance conditions to the occupants of adjacent properties and the surrounding area in terms of the emission of noise, odor, dust, smoke, vibration, glare, heat or inconsistent or untimely activity in relation to that normally associated with the permitted use activities in the district.
l. The Zoning Board of Appeals found that granting the requested variance will not add substantially more to the generation of traffic than that which is generated by other permitted uses in the district. m. The Zoning Board of Appeals found that the requested variance is the result of conditions existing in relation to a lot or parcel but is not the creation of the applicant. n. The Zoning Board of Appeals found that the variance is the minimum necessary to permit the reasonable use of the property in terms of the comparable reasonable use of all other properties in the zoning district. Motion by Muvrin and supported by Palenick to grant the variance with condition that the lean too roof shall not be enclosed and shall not extended more than 4 inches beyond the existing concrete pad as presented and is based on the discussions and findings that there are unique characteristics of the lot size, spacing, location of the lake, neighbors, and road on the East side of the lake. The variance as requested is the minimum necessary to maintain the integrity of the home by providing protection from the elements. The motion was unanimously approved. The Chairman reviewed the application. A variance request to the minimum lot width/road frontage, non-buildable lot, and the maximum setback for the rear of the residence. The proposed construction is for a new residence. This parcel is located in the Agriculture (Farmland Preservation) zoning district (AGR). The lot will be a legal nonconforming lot if the variance is granted. The Chairman summarized that there are two requests before the Board. The first is a variance request for the required road frontage for a lot and the second is for the maximum rear building setback. The Chairman opened the Public Hearing at 7:43 PM. Mr. Vogt presented a letter from his mother authorizing him to represent her for these variance requests. Mr. Vogt presents the requests to the Zoning Board of Appeals. Mr. Vogt stated that the lot width variance request is to allow the existing farmstead to be split from the current parcel to allow him to construct a new residence and place his sister in this home to care for her. Mr. Vogt stated he has reduced his request for the maximum rear building setback from 700 feet to 500 feet. He stated that the power company, AEP, has an easement across his property which is located 170 feet from the road right-of-way and extends to 210 feet from the right-of-way (40 feet wide) which he can t build in. He verified with AEP the minimum distance from the power lines they require. AEP requires 15 feet outside of the power lines. Mr. Vogt stated that his goal is to maintain the remaining land as it currently exists once the new house is constructed. He also talked to AEP about moving the power lines and they are not willing to move the lines.
Palenick stated so Mr. Vogt could build with a front yard setback of 220 to 225 and ask for a variance for the maximum rear building setback. Mr. Vogt stated he is asking to build behind the power lines for the safety of his family. Muvrin asked if the 67-foot width of the proposed building is the entire width of the building. Mr. Vogt stated that no this is just for the house there is a 10-foot porch on the front and a 20- foot porch on the rear. Boff stated so if you round to up to 100 feet for the width for the sake of discussion and the front yard setback starts at 250 feet then the rear of the building would be 350 feet from the road rightof-way. Mr. Vogt stated he is requesting the variance due to his concerns with the power lines and that he would like to have his family be in the front or rear yard without any danger. Mr. Randy Cramer of Lawton stated he has worked for AEP electric company for 40 years and Mr. Vogt could build his residence within 10 feet of the power line. Mr. Steve Holden stated that there appears to be a conflict already with the information provided for the necessary distance from the power lines and the Board should verify this prior to granting the variance. Mr. Gale stated the Board could approve the variance with the condition that the placement of the new residence is in compliance with the AEP easement. The Chairman asked if the new residence were constructed in line with the existing neighboring residences where would the new residence be. Mr. Vogt stated he was not sure. He stated that Mr. Ploeg s residence is 431 feet back due to the power lines according to Mr. Ploeg and Mr. Ploeg s sister. This puts the rear of the residence farther back than 431 feet. Mr. Vogt responded to Mr. Holden s comment and stated that he has an email from an AEP engineer that states 15 feet and is willing to forward this if necessary. Mr. Gale stated that he did some quick math for the Board. There is a 72-foot wide space that is buildable located in front of the easement for the power lines. The proposed design of the new residence may not fit this area. Muvrin asked for help in understanding the measurements and asked if the house plans could be modified. Palenick asked so the current design will not fit.
Mr. Gale explained the zoning ordinance requirements. Muvrin stated that to be in compliance the house could be located between 83 and 170 from the right-of-way OR 210 to 270 from the right-of-way. Mr. Charles Felcyn commented that the application depicts the house in line with the storage building on the farmstead. He stated that the statement for this zoning district created by the Planning Commission is to protect farmland. He disagrees with granting the rear building setback variance and doesn t believe there is a valid reason. Mr. Felcyn stated he talked to John Beak and he indicated the distance to the power line was 10 feet. Mr. Felcyn stated that the power lines could be moved or easily buried. Boff stated that there would still be an easement for the power lines and that he agrees with the maximum 270-foot rear building line setback but there is special consideration with the power lines and their location. Mr. Felcyn stated that every house except 2 are within the 270 feet along this section of road and 14 of those houses are an average of 114 feet from the centerline of the road. It is his opinion that the power line location is not a reason for granting the variance and he is opposed to granting this request. Mr. Steve Rigoni stated that the ordinance was to protect farmland. He is the neighbor to new residence that was granted a variance for the maximum rear building setback and since that house has been constructed it has impacted his farming operation for spraying his grapes. Mr. Rigoni stated that the variance for the lot width and the new parcel width of 297.95 feet is not the applicants making. He stated that I want is not a consideration. Mr. Rigoni stated that the Board s decision may cause a hardship to the neighbor. Mrs. Linda Felcyn stated that there should be something that is unique about the property and it is her opinion that power lines are not a unique feature. The power lines are not a hardship and didn t prevent people from buying property. She stated she is opposed to the request for the variance to the maximum rear building line. Mr. Eric Shane stated that he has worked as a HazMat confined space rescue member. He stated that there is a code of federal requirements. The rescue team uses these regulations and common sense. As for the spraying of the grapes raised early he questioned the concern about the spray traveling to the neighbors. He pointed out that when airplanes are used for crop spraying you can t control the direction the spraying travels. He stated that the concern for falling power lines is controlled by gravity. Mr. Shane stated that the concerns Mr. Vogt has are related to the
duration of exposure. He stated it is like sticking your hand in boiling water: in and out quickly probably no affect, however long term then yes there is an affect. He stated opposing Mr. Vogt is not just for saving farmland in his opinion. He is in favor of approval of a variance request that is reasonable. Muvrin asked for confirmation that the Board is looking at 2 things. Mr. Gale stated yes, the width of the lot and the rear building setback. Mr. Scott Totzke stated that he farms the majority of the land around Mr. Vogt and Mr. Vogt would be down wind of his farming operation. The new residence is going to affect his operation. Boff asked Mr. Totzke if he has to take precautions now. Mr. Totzke stated no. Mr. Vogt stated that there will be 700 feet between the proposed residence location and the grapes. Mr. Holden stated it has nothing to do with who it benefits. They live in fruit ridge area and this land needs to be preserved. He believes the proposed residence shouldn t be built at all. Mr. Rigoni commented further on his neighbor s house. The Chairman commented on spraying crops, that the wind was controlled by nature, and grape processors. He stated that the proposed residence it too far back and needs to move closer. The Board had further discussion regarding the rear building setback. The Chairman closed the public hearing at 8:52 pm. Muvrin commented that the building width of 87 feet hasn t been considered at all which would then not require a variance for the rear building setback. The Chairman read the letters presented at the meeting into the record. The Board reviewed Section 42-364(a) for the requested lot width variance and made the following findings:
1. a. That special conditions and circumstances exist which are peculiar to the land, land use, structure or building in the same zoning district so as to present such a unique situation that a precedent will not be established for other properties in the district to also ask the same or similar change through the zoning appeal procedure. Yes. Lot width is short by 2.05 feet due to the parent parcel width being 497.95 feet. The farmstead child parcel meets the requirements of the zoning ordinance which is 200 feet of road frontage and therefore this child parcel is only 297.95 feet wide. b. That literal interpretation of the provisions of this chapter would deprive the applicant of rights commonly enjoyed by other properties in the same zoning district under the provisions of this chapter. No, it will not for this requested variance. c. That granting of the variance requested will not confer on the applicant a special privilege that is denied by the provisions of this chapter to other lands, structures, or buildings in the same zoning district. No, it will not for this requested variance. d. That no nonconforming use of other lands, structures, or buildings in the same zoning district, and not permitted use of lands, structures or buildings in other zoning districts shall be considered grounds for the issuance of a variance. No other nonconforming use of lands, structures, or buildings in the same zoning district or permitted use of lands, structures or buildings in other zoning districts were considered grounds for issuance of these variances. 2. The Zoning Board of Appeals found that the requirements of this chapter have been met in the zoning district in which it is located by the applicant for the variance requested. 3. The Zoning Board of Appeals found that the applicant s reasoning did justify the granting of this variance. The Board noted that width of the parent parcel is 497.95 feet. The Board also noted that farmstead child parcel meets the requirements of the zoning ordinance. 4. The Zoning Board of Appeals found that the granting of the variance would be in harmony with the general purpose and intent of this chapter and will not be injurious or otherwise detrimental to the public welfare of the zoning district in which it is to be located. 5. The Zoning Board of Appeals had no conditions to be placed on this requested variance. 6. The Zoning Board of Appeals found that the use of a single-family residence is allowed in the zoning district. 7. a. The Zoning Board of Appeals found that this requested variance is applicable to only the property under the ownership control of the applicant.
b. The Zoning Board of Appeals found that this requested variance is the result of an action taken by the applicant to specifically create the conditions leading to the request. c. The Zoning Board of Appeals found that this requested appeal would not be contrary to the intent and purpose of any part of this chapter. d. The Zoning Board of Appeals found that the requested variance would not overcome adversity created by this chapter to the extent that the property cannot be used for any reasonable purpose. e. The Zoning Board of Appeals found that granting this requested variance would not overcome the possibility of economic considerations to the extent that confiscation or the lack of reasonable profit ability of the property will not result, but, if the variance is requested to simply make its use unreasonably valuable, or profitable, the variance has no standing if it is found that these are the only reasons the variance is requested. f. The Zoning Board of Appeals found that the property in question is not unique or different from all other properties in the same zoning district as to find it necessary to grant the variance in order to give the unique property the same privileges of use as that which is both permitted and enjoyed by all other properties in the same district. g. The Zoning Board of Appeals found that granting the requested variance would create a precedent which can be applied generally to other properties in the same district. h. The Zoning Board of Appeals found that granting this request will not cause a substantial adverse effect upon adjacent properties in the district or this chapter in a more general way. i. The Zoning Board of Appeals found that granting this requested variance would not unreasonably alter the essential character of the zoning district in which it is located. j. The Zoning Board of Appeals found that this requested variance will not create a hazard to the public health, safety and general welfare of the persons in the zoning district and the Township generally. k. The Zoning Board of Appeals found that granting this requested variance will not produce nuisance conditions to the occupants of adjacent properties and the surrounding area in terms of the emission of noise, odor, dust, smoke, vibration,
glare, heat or inconsistent or untimely activity in relation to that normally associated with the permitted use activities in the district. l. The Zoning Board of Appeals found that granting this requested variance will not add substantially more to the generation of traffic than that which is generated by other permitted uses in the district. m. The Zoning Board of Appeals found that this requested variance is not the result of conditions existing in relation to a lot or parcel but is the creation of the applicant. The applicant is requesting a land division. n. The Zoning Board of Appeals found that this variance is the minimum necessary to permit the reasonable use of the property in terms of the comparable reasonable use of all other properties in the zoning district. Motion by Boff and supported by Palenick to grant this variance for a lot width of 297.95 feet based on the above discussion and findings. The motion was approved with a 4 yeah, 1 nay votes. The Board reviewed Section 42-364(a) for the requested maximum rear building setback variance of 500 feet and made the following findings: 1. a. That special conditions and circumstances exist which are peculiar to the land, land use, structure or building in the same zoning district so as to present such a unique situation that a precedent will not be established for other properties in the district to also ask the same or similar change through the zoning appeal procedure. No. b. That literal interpretation of the provisions of this chapter would deprive the applicant of rights commonly enjoyed by other properties in the same zoning district under the provisions of this chapter. No, it will not for this requested variance. c. That granting of the variance requested will not confer on the applicant a special privilege that is denied by the provisions of this chapter to other lands, structures, or buildings in the same zoning district. Yes, it will for this requested variance. d. That no nonconforming use of other lands, structures, or buildings in the same zoning district, and not permitted use of lands, structures or buildings in other zoning districts shall be considered grounds for the issuance of a variance. No other nonconforming use of lands, structures, or buildings in the same zoning district or permitted use of lands, structures or buildings in other zoning districts were considered grounds for issuance of these variances.
2. The Zoning Board of Appeals found that the requirements of this chapter have been met in the zoning district in which it is located by the applicant for the variance requested. 3. The Zoning Board of Appeals found that the applicant s reasoning did not justify the granting of this variance. 4. The Zoning Board of Appeals found that the granting of the variance would be in harmony with the general purpose and intent of this chapter. 5. The Zoning Board of Appeals had no conditions to be placed on the requested variances. 6. The Zoning Board of Appeals found that the use of a single-family residence is allowed in the zoning district. 7. a. The Zoning Board of Appeals found that this requested variance is applicable to only the property under the ownership control of the applicant. b. The Zoning Board of Appeals found that this requested variance is the result of an action taken by the applicant to specifically create the conditions leading to the request. c. The Zoning Board of Appeals found that this requested appeal would not be contrary to the intent and purpose of any part of this chapter. d. The Zoning Board of Appeals found that this requested variance would not overcome adversity created by this chapter to the extent that the property cannot be used for any reasonable purpose. e. The Zoning Board of Appeals found that granting this requested variance would not overcome the possibility of economic considerations to the extent that confiscation or the lack of reasonable profit ability of the property will not result, but, if the variance is requested to simply make its use unreasonably valuable, or profitable, the variance has no standing if it is found that these are the only reasons the variance is requested. f. The Zoning Board of Appeals found that the property in question is not unique or different from all other properties in the same zoning district as to find it necessary to grant the variance in order to give the unique property the same privileges of use as that which is both permitted and enjoyed by all other properties in the same district. g. The Zoning Board of Appeals found that granting this requested variance would create a precedent which can be applied generally to other properties in the same district.
h. The Zoning Board of Appeals found that granting this request will cause a substantial adverse effect upon adjacent properties in the district or this chapter in a more general way. i. The Zoning Board of Appeals found that granting this requested variance would not unreasonably alter the essential character of the zoning district in which it is located. j. The Zoning Board of Appeals found that this requested variance will not create a hazard to the public health, safety and general welfare of the persons in the zoning district and the Township generally. k. The Zoning Board of Appeals found that granting this requested variance will not produce nuisance conditions to the occupants of adjacent properties and the surrounding area in terms of the emission of noise, odor, dust, smoke, vibration, glare, heat or inconsistent or untimely activity in relation to that normally associated with the permitted use activities in the district. l. The Zoning Board of Appeals found that granting this requested variance will not add substantially more to the generation of traffic than that which is generated by other permitted uses in the district. m. The Zoning Board of Appeals found that this requested variance is the result of conditions existing in relation to a lot or parcel but is not the creation of the applicant. The Board noted the existence of power lines and an easement for the power lines. n. The Zoning Board of Appeals found that this variance is not the minimum necessary to permit the reasonable use of the property in terms of the comparable reasonable use of all other properties in the zoning district. Motion by Palenick and supported by Boff to grant the variance of 500 feet for the maximum rear building setback based on the above discussion and findings. The motion failed with a 1 yeah, 4 nay votes. The Chairman suggested that the applicant review the numbers and see if he can make things work after he completes his review. ADDITIONAL PUBLIC COMMENT: None. OTHER BUSINESS: None. ADJOURNMENT:
Motion by Cicchini supported by Palenick to adjourn the meeting. The motion was unanimously approved. The meeting was adjourned at 9:47 PM. Respectfully submitted, Kelly Largent Zoning Administrator