CITY HALL • 224 WEST BUFFALO • NEW BUFFALO, MICHIGAN 49117 • 269/469-1500 FAX 269/469-7917

September 28, 2017

NOTICE OF PUBLIC HEARING AND SPECIAL MEETING

The City of New Buffalo Zoning Board of Appeals will hold a public hearing on

Thursday, October 19, 2017 at 5:00 p.m., in the New Buffalo City Hall, 224 West

Buffalo Street on a request made by Jerry Fedorchak of GM Fedorchak & Assoc.

The applicant is requesting to permit a parking variance with license for dedicated

parking spaces on the City right-of-way. The applicant is also requesting a variance as

the patios on southside encroach in rear yard setback. This request involves Zoning

Ordinance Sections: 5-2B, On-Premise Parking and Loading-Multiple Family Dwellings

and 3-11 B (4), Encroachments into Yards-Permitted Terrace, Patio, Porch & Deck

Encroachments/located no closer than ten (10) feet from a street right-of-way line or rear

lot line.

Said property is located at 529 North Drive, New Buffalo, MI. Property Tax Code No:

11-62-0009-0003-16-6. The Zoning Ordinance is available online at

cityofnewbuffalo.org and City Hall.

This meeting is an open meeting. This notice is posted in compliance with Open Meeting

Act, Public Act 267 of 1976 and the Americans with Disabilities Individuals with

disabilities requiring auxiliary aids should contact the City Clerk by writing or calling the

following: Lori Vander Clay, City Clerk (269) 469-1500, 224 W. Buffalo St., New

Buffalo, MI 49117.

Mary Lynn

Deputy Clerk

.

AGENDA

CITY OF NEW BUFFALO

ZONING BOARD OF APPEALS

SPECIAL MEETING

October 19, 2017

1. Call to Order

2. Roll Call

3. Approval of Agenda

4. Public Comment

5. Business Meeting

a) Approval of Minutes of May 18, 2017

6. Public Hearing

7. New Business

a) Variance Request by Jerry Fedorchak of GM Fedorchak & Assoc.

8. Adjournment

Next Meeting Date: November 16, 2017

May 18, 2017 5:02 p.m. Special Meeting/Regular Meeting

Page 1 of 4

Call to Order at 5:02 pm - Pledge of Allegiance led by the Board.

Roll Call:

Present: Vice-Chair Arlene Pokuta, Members Tom Smith, Richard Cooper, Paul Billingslea, Evangelia (Lee) Bloom Absent: Chair Liz Grim-Vaughan, Member Nancy Smith Staff Present: Zoning Administrator, David Richards, Recording Secretary, Mary Lynn

Approval of Agenda:

Motion by Member Billingslea seconded by Member Smith to approve the agenda. Voice vote unanimous, motion carried.

Approval of Minutes:

Motion by Member Billingslea, seconded by Member Tom Smith to approve the minutes of March 9, 2017. Voice vote unanimous, motion carried

Public Comment: None

Business Meeting

Appointment of Officers:

Motion by Vice Chair Pokuta, seconded by Member Tom Smith to appoint Liz Grim-Vaughan for Chair. Voice vote unanimous, motion carried. Motion by Member Billingslea, seconded by Member Cooper to appoint Arlene Pokuta for vice chair. Voice vote unanimous, motion carried Motion by Member Tom Smith, seconded by Vice Chair Pokuta to appoint Member Billingslea for Secretary. Voice vote unanimous, motion carried Public Hearing

Motion by Member Pokuta, seconded by Member Billingslea to open the public hearing at 5:10 pm. Vote unanimous, motion carried.

Variance request by Regina & James Wilkinson

Zoning Administrator, David Richards, read from his Staff Report (a copy of which is attached hereto) as follows: The applicant requests the opportunity to construct an enclosure that attaches the garage (an accessory structure) to the dwelling in violation of the side yard setback required in R1 – Residential districts.

Attorney for applicant, John Wojcik, spoke on behalf of James & Regina Wilkinson relating to the property owner’s intent to seek a variance to allow them to construct a breezeway connecting the garage to the house. He stated that there are similar configurations in the community. In order to do that they would have to build on setback. He also stated that the owner next to them does not object. Construction of the breezeway would not have any negative effect for light or air to adjacent properties. Granting of Variance would not cause increase in risk of fire or public safety. It would instead be consistent of the single-family homes in neighborhood. They are requesting a variance to enable construction of breezeway to connect garage to house.

May 18, 2017 5:02 p.m. Special Meeting/Regular Meeting

Page 2 of 4

Discussion was had by all parties, including the Building Inspector and the Contractor as follows:

According to the Building Inspector, the breezeway was not listed on the original site plan.

The owners indicated that they wanted it after the fact as a matter of convenience due to bad weather and the uneven sidewalk that is between the garage and house.

It was agreed to by the attorney that it was an afterthought. He admitted that a mistake was made by the builder but the mistake was not intentional.

In answer to questions as to why a building permit was not requested to build a breezeway, the Contractor explained that he always gets building permits but sometimes he might be a day late. He had come down to office after he had worked on it for one day.

The Building Inspector said he remembered it was a lot more than one day. Zoning Administrator asked the Contractor to comment on the delay between stop work

order and any building permit being applied. The Contractor stated that it was1-1/2 to 2 days. Zoning Administrator stated that construction started on breezeway for some time before

the Building Inspector put a stop work order on the breezeway. Then the Contractor came in and asked for a building permit.

The attorney acknowledged that a mistake was made and apologized on behalf of his clients. On behalf of contractor and homeowner the mistake was made, a stop work order was put in place and construction was stopped. He stated that they are here following Mr. Carpenter’s advice and are applying for a variance.

Motion by Vice Chair Pokuta, seconded by Member Billingslea, to close public hearing at 5:28 pm, no vote taken. Discussion was had to keep Public Hearing open till after the 2nd Variance Request. Variance request by Robert Athey

Zoning Administrator, David Richards read from his staff report (A copy of staff report is attached) as follows: The applicant requests the opportunity to renew a residential use in the Central Business District abandoned for beyond a year (20-5, E). Section 20-4, G allows for a nonconforming use to be changed to another nonconforming use subject to Zoning Board Approval. While the application is not to change the use, the reuse as a residential property is certainly not more objectionable and does not result in impacts more objectionable than the previous residential use.

Patricia Carpenter, attorney for Robert Athey stated that an application was filed to reconsider/appeal the decision by Mr. Carpenter to classify the non-conforming use as being abandoned as it has always been used as rental property. Last tenant vacated property in approximately May, 2016. Sometime after that he began doing some redecorating to gain another tenant. That was when Mr. Carpenter told him that it was abandoned and he could not use it. Under Zoning Ord. Section 20-3c Cessation it describes and outlines when a non-conforming use shall be determined to cease if one or more of the following conditions exists, and which shall be deemed to constitute an intent on the part of the property owner to cease and abandon the non-conforming use:

1. Utilities such as water, gas and electricity to the property have been disconnected. 2. The property, buildings and grounds have fallen into disrepair. 3. Signs or other indications of the existence of the non-conforming use have been removed. 4. Equipment or fixtures necessary for the operation of the non-conforming use have been

removed.

May 18, 2017 5:02 p.m. Special Meeting/Regular Meeting

Page 3 of 4

5. Other actions, which in the opinion of the Zoning Administrator, constitute an intention of the part of the property owner or lessee to abandon the non-conforming use.

None of the items listed were a condition or the intention of Mr. Athey. They always had utilities connected and property has never fallen into disrepair. In fact, Michigan Supreme Court has spoken on it that abandonment is something more than mere nonuse – not using it is not enough. There has to be an intention and that is not the case. She is stating the Building Inspectors decision is erroneous and should be reversed. She thinks the law speaks for itself.

Applicant stated that water was requested to be turned off November 15th for the winter months. In 2015, when last tenant left, they were in process of renovating the Ice House at Caseys’. When tenant left, he used the subject building for temporary storage for the Ice House and then began redecorating the property, fully intending to find another resident. Applicant was without tenant for one year.

Zoning Administrator said he is correcting his staff report that the last reading was November of 2015 instead of 2016.

Questions from Zoning Commissioners on whether applicant had pulled permits for the windows or re-siding as shown from the pictures. Applicant stated he was in communication with Mr. Carpenter all the time – he did not need one but did get an electrical permit early last summer. The pictures submitted are from summer of 2016. He is planning on putting in new kitchen cabinets, fixing the floor and that is it. It is not a summer rental. He also showed a March/April 2017 water bill.

Motion by Vice Chair Pokuta, seconded by Member Billingslea to close public hearing at 5:43pm. Voice vote unanimous, motion carried.

Discussion on Wilkinson Variance.

Zoning Administrator, David Richards, read from his Staff Report as follows: The applicant requests the opportunity to construct an enclosure that attaches the garage (an accessory structure) to the dwelling is in violation of the side yard setback required in R1 – Residential districts. It is his recommendation that you deny the request for a setback variance.

After reading Section 3-2 Accessory Buildings and Structures, Zoning Administrator stated that granting a variance will impair the intent of the Zoning Ordinance as the site plan was approved and then the contractor changed the project without approval. The project was stopped and now they are asking for a variance after the fact.

While he sympathizes that a mistake was made, if the garage had been attached to the house from the beginning there would be no need for a breezeway or variance and they would have constructed the garage within the setback allowed. He does think the variance should be denied because of that.

Member Billingslea expressed his feelings to deny the variance because this was completely fixable from the first moment and no one tried to fix it. It indicates to him that the applicants knew it would be a problem. He agrees with the Zoning Administrator. He stated the only way that zoning works in towns is if you enforce it.

Motion by Member Billingslea seconded by Member Bloom to deny the variance request of the applicants, Regina and James Wilkinson.

Roll Call:

Yes: Members Cooper, Tom Smith, Vice-Chair Pokuta, Members Billingslea, Bloom

May 18, 2017 5:02 p.m. Special Meeting/Regular Meeting

Page 4 of 4

Nos: None Absent: Chair Grim-Vaughan, Member Nancy Smith Motion carried 5-0 Discussion on Robert Athey Variance

Zoning Administrator read from his staff report as follows: The property at 127 North Barton was historically utilized as a single-family residence and the dwelling constituted an allowable primary structure and use until abandoned for a year. The applicant requests the opportunity to re-use the property as a single-family dwelling. A final water reading was conducted in November, 2015. The applicant admits the residential use was discontinued at the time, claiming the residential use was only temporarily suspended for remodeling. Reusing the property as a residential use is in compliance with standards identified in a Change of Use and does not increase the degree of nonconformity existing prior to its abandonment.

It is his recommendation that you allow the reuse of the property as a nonconforming residential use. The proposed use does not increase the degree of nonconformity existing prior to such change of use. Pursuant to this standard, the proposed use shall not create or result in impacts which are considered more objectionable than the use to be replaced. Such impacts shall include but are not limited to increased traffic, truck deliveries, parking requirements, hours of operation, noise, vibrations, odors, litter, outside storage, pedestrian movement, off site drainage and other factors.

No structural alteration of the existing structure will be required to accommodate the new use, unless the alteration will render the structure more conforming to the underlying zone district standards.

Motion by Member Cooper, seconded by Member Tom Smith to approve the reuse of the property as a non-conforming residential use.

Roll call.

Yes: Vice-Chair Pokuta, Members Billingslea, Bloom, Cooper and Tom Smith Nos: None Absent: Chair Grim-Vaughan, Member Nancy Smith Motion carried 5-0

Member Comments: None

Adjournment:

Motion by Member Billingslea, seconded by Member Bloom to adjourn the meeting at 5:55 pm Voice vote unanimous, motion carried.

__________________________________ ____________________________________ Arlene Pokuta, Vice-Chair Mary Lynn, Recording Secretary