Meeting called to order at 7:40 p.m. by Chairperson Churella.

PRESENT: Members Canup, Churella, Kocan, Koneda, Landry, Mutch, Nagy, Piccinini, Richards

ABSENT/EXCUSED: Member Piccinini (absence excused)

ALSO PRESENT: Planning/Traffic Consultant Rod Arroyo, Staff Planner Beth Brock, Planning Director David Evancoe, City Attorney Gerald Fisher, Façade Architect Christian Fox, Landscape Architect Linda Lemke, Engineering Consultant Victoria Weber

Chairperson Churella asked if there were any additions or changes to the Agenda.

Member Kocan amended the agenda removing Outback Steak House SP 01-41 from the Consent Agenda and placing it under Matters for Consideration item #1 to allow for discussion.

Moved by Kocan, seconded by Richards, CARRIED UNANIMOUSLY: To approve the Agenda as amended.

Yes: Canup, Churella, Kocan, Koneda, Landry, Mutch, Nagy, Richards

No: None

Chairperson Churella announced that he received two (2) green cards to speak on the matter of Novi Promenade, which was removed from the agenda.

Both residents indicated that they preferred to wait to speak at the Public Hearing for the Novi Promenade.

None

Chairperson Churella announced there was one (1) item on the Consent Agenda.

This proposed project is located in Section 17. It is on the northwest corner of Grand River and Beck Roads. The site is zoned B-2 (Community Business District). The applicant is seeking Preliminary Site Plan Approval and a Section Nine Façade Waiver.

Moved by Kocan, seconded by Richards, CARRIED UNANIMOUSLY: To amend the consent agenda to place Outback Steak House SP 01-41 under Matters for Consideration item #1 to allow discussion.

Yes: Canup, Churella, Kocan, Koneda, Landry, Mutch, Nagy, Richards

No: None

David Evancoe, Planning Director introduced Nancy McClain, the new City Engineer. Ms. McClain will be working as a member of the Plan Review Center and with the Department of Public Services. She graduated from Michigan Technology University with a major in Civil Engineering. Ms. McClain has 8½ years of government experience from both Connecticut Department of Transportation and the City of Norton Shores, Michigan. She previously worked with BEI Associates as the Assistant Director of the Civil Engineering Department. She is also a register Professional Engineer in Connecticut and Michigan.

This proposed gas station is located in Section 22, on the south side of Grand River and west of Novi Road. The .69 acre site is zoned TC-1 (Town Center). The applicant is seeking Preliminary Site Plan, Woodland Permit, and Section Nine Façade Waiver approvals.

Member Mutch requested clarification prior to beginning the Public Hearing. He noted the question of non-conformance, which remained an issue with several of the commissioners. There was question if the use was abandoned to the point that the use of the project would not be able to be considered as proposed for the zoning district. He felt the Commission needed to address several issues prior to hearing the presentation. He asked the Legal Counsel for direction. He clarified if the issue of abandonment of the use needed to be addressed first. The Planning Commission would need to make a finding based on the evidence presented. There has been no active use of a gas station for several years. Therefore, a determination should be made of whether the use would remain grandfathered as a non-conforming use or if it should not be considered because the use has been abandoned. If a finding of abandonment was determined, the City would need to have evidence of that determination. He questioned if this was correct.

Gerald Fisher, City Attorney answered, correct.

Member Mutch questioned if this determination should be made prior to the consideration of the issue of the Site Plan.

Mr. Fisher requested permission to provide the guidance in a broader answer. A non-conforming use is created when an Ordinance is modified such that a previously permissible use becomes an impermissible use under the Ordinance. Under the Law of Michigan, (as clarified in the City of Warren case), the Court has indicated the requirement of two (2) elements to indicated the non-conforming use no longer exists. Element one is non-use for a period of time indicating abandonment. Element two is the intent to abandon the rights that were vested under the Ordinance for the non-conforming use. The determination of whether there has been abandonment is a question of fact because it is site specific and situation specific for the particular use. There would be an evidentiary consideration. Mr. Fisher indicated there has been a non-use since approximately 1993 in this case. This amount of time may suggest abandonment, which may be applied to some degree that there may have been intent to abandon. In proceeding with this determination, he suggested giving the opportunity to the property owner to demonstrate that they did not have that intent. The property owner would have the opportunity to provide the Commission with the facts and the details relating to the property. He noted the unsigned Affidavit containing many facts referred to, however, an unsigned Affidavit is not worth a great deal until it is signed. The document would need to be examined to determine if there has been abandonment.

Member Mutch stated if the Commission determined there was abandonment as Mr. Fisher stated (an evidentiary decision based on fact and information provided), what record would need to be established to make this finding.

Mr. Fisher indicated if the property owner presented no information to indicate intent there would be no need to go further with the eight years of non-use. However, if the property owner demonstrates realistic facts indicating there was not intent to abandon, then the burden would fall back on the Commission to demonstrate that there was intent.

Member Mutch stated while researching related cases dealing with non-conforming use, he noted that the Courts considered the question of expansion of the use when considering the non-conforming use. The Zoning Ordinance is designed to reduce and eliminated non-conforming uses over time. The intent of the Zoning Ordinance is to not allow a non-conforming use to expand. In a Court of Appeals case, Charter Township of Wrightung vs. Zeeb, the Court noted "continuation of a non-conforming use must be of the same essential size and nature of the use existing at the time of passage of a valid zoning ordinance. The non-conforming use is restricted to the area that was non-conforming at the time the Ordinance was enacted." It continues to make a finding that the use could not expand beyond the nature of what had been done over a period of years, because it would be an expansion of the use. He questioned if this determination was an issue within the purview of the Planning Commission or decision of the Zoning Board of Appeals.

Mr. Fisher indicated the Planning Commission administers the Ordinance as it relates to the proposal, therefore, they could refer the matter to the ZBA for findings. However, the Planning Commission is entitled to make a decision in the first instance. The property owner could appeal to the ZBA.

Member Mutch questioned how broadly or narrowly the language "non-conforming use must be of the same essential size and nature" reached the concept of making this finding. He questioned if the legal requirement is met by the fact it is located on the same parcel. He stated if there was one gas pump would a request for a second gas pump be considered an expansion of the use. He asked if there were previously no accessory uses would a proposal for accessory uses be considered an expansion of the use. He asked Mr. Fisher to clarify.

Mr. Fisher stated all the factors would be examined to determine if there is an impact on the items (traffic volume, noise, impact on neighbors and items of this nature) being protected in zoning. Hypothetically, if there were two (2) gas pumps, in which the non-conforming use was previously one (1) gas pump, then it could be assumed that the volume of activity on the property would be material increased, which would be an expansion of a non-conforming use.

Member Mutch felt the Commission should make these determinations and indicated that a lot of information would be needed to make these decisions. He noted the unsigned Affidavit concerning their efforts to make use of the property. He noted a couple of issues he felt were relevant to the decision making process. The history of the zoning of the property, possibly back twenty (20) years, to indicate the time period when the property became a non-conforming use and previous Master Plans to indicate the long term intent of the use of the property. He suggested that the applicant provide more information, other than an unsigned affidavit, to bolster the argument they are making. In reference to whether or not the request is an expansion of the non-conforming use, he suggested factual detail be provided regarding the nature of the use when it was last operated. He stated if the Commission gave an affirmative answer that would allow the consideration of a continuation of a non-conforming use, then it would be relevant for the Commission to make the consideration of whether or not it is an expansion. He questioned if the determination of an expansion of a non-conforming use was made, (after reviewing the past evidence), would it be within the power of the Commission (during consideration of the Site Plan) to require them to scale back the nature of the use to its previously permitted on the site.

Mr. Fisher agreed. If it were established that it is a non-conforming then it would be unlawful to put the use there today. Therefore, the only use they would be entitled to is what was there currently on the site. In this regard, the burden is not on the City, but on the property owner.

Member Mutch requested direction because Public Hearing was scheduled, Site Plan and review comments have been provided. He questioned if the commission should move forward or if they should request more information and table to a future date.

Mr. Fisher stated this would be a matter within the discretion of the commission. He questioned if the applicant could provide solid evidence in excess of the unsigned affidavit. More specifically could the applicant provide a signed affidavit with the back up documentation, etc… to make moving forward productive. However, if the applicant indicates that they could not produce the information, there would not be a reason to move forward. Mr. Fisher indicated if the applicant makes a representation to the commission that they can provide the information/evidence that the underground storage tanks have been registered each year, etc… then the commission may chose to move forward.

Member Nagy agreed with Member Mutch’s comments regarding having the issues discussed prior to moving the case forward.

Moved by Nagy, seconded by Kocan, CARRIED UNANIMOUSLY: In the matter of Proposed Gas Station SP00-52 to postpone the matter until the applicant can provide the Planning Commission with the proper information to determine the non-conforming use.

Member Koneda agreed with the comments. He felt that more information needed to be provided. He requested the applicant provide evidence indicating their attempts to lease the building since the time it was not in use. A non-conforming use permits some renovation of the site to make site improvements providing that expansion does not occur. He noted the applicant has attempted to meet the requirements of the TC-1 District with the placement of the pedestrian amenities and required landscaping. Member Koneda asked if the Commission could not disprove the site as having been abandoned and the use is permitted, then are improvements to the site required to meet TC-1 amenities or would there be a minimal to operated as a gas station only.

Mr. Fisher stated if the non-conforming use was not abandoned, the property owner would have the right to do what was there previously.

Member Koneda questioned if this would exclude the TC-1 improvements.

Mr. Fisher answered, yes. He added that it would not be good for the City or the property owner. There is not a prohibition upon making improvements on the property making it less non-conforming. If the uses conform to TC-1 and do not make the use more non-conforming they would be acceptable.

Member Koneda indicated when the site functioned as a gas station; gas stations were strictly service stations and not convenient stations. He believed that the proposed site had history of two (2) service bays.

Mr. Fisher added that the use was not located in the middle of an urban area.

Member Koneda indicated that the applicant would "fall under" the non-conforming that would allow the right to sell gasoline and perform auto service repairs because that was the use at the time. However, the non-conforming expanding uses would be the convenient center uses. He felt that the Planning Commission should ask for the evidence to demonstrate that the site has not been abandoned. However, even if the applicant proved this, he felt it would be within the authority of the Planning Commission to deny the site plan because the site plan is an expansion of usages that were not "grandfathered" in as part of the pre-existing conditions.

Mr. Fisher stated that if the Planning Commission finds that it is an expansion of that particular use…

Member Koneda interjected and stated that the "usages" required the parking spaces and the additional cooler.

Mr. Fisher agreed.

Member Koneda asked Mr. Arroyo if he agreed. He stated that if the Commission voted to table the matter, he wanted the petitioner to be aware what the Commission was expecting when he returned.

Mr. Arroyo indicated that the Commission has requested a very clear, precise description of what existed at the time the site last operated. He stated that with this clarification he would be able to give the Commission a more precise comparison between what was there before and what is now.

Member Koneda clarified if he was indicating that he was not in a position to make the comparison without further review.

Mr. Arroyo stated that it would be better when he has all the information.

Member Landry asked if gas stations and service stations are not allowed in TC-1 Districts.

Mr. Arroyo stated yes.

Member Landry asked if plain convenience stores are allowed.

Mr. Arroyo stated yes.

Member Landry stated that the addition of the convenience store aspect would not be arguably a non-conforming use, therefore, it would not be an expansion of the non-conforming use. He asked Mr. Fisher if he agreed.

Mr. Fisher stated that if the convenience operation is allowed in TC-1 then it could be said that it is not a new use or expansion of the non-conforming use. However, if it is said that authorizing that convenience aspect extends the life of the non-conforming use then it is an expansion.

Member Landry stated that it would not be a physical expansion but a temporal expansion.

Mr. Fisher stated that it would be a viable use, whereas otherwise it would not be a viable use.

Member Landry agreed with the previous comments. He advised the Commission to proceed carefully with this project and ensure that the petitioner is aware of exactly what the Commission wants. He believed the petitioner understood the Commissions’ expectations and therefore there were no surprises. He added that the petitioner has plenty of opportunity to provide what the Commission is requesting. He noted his support of the motion.

Mr. Fisher stated that some time ago, he spoke to Council for the property owner. There was an understanding by the property owner that prior legal counsel for the City had done extensive legal research and whether or not there was a non-conforming use on this property. An opinion had been written to the effect that there was a non-conforming use. He added that with the assistance of the Planning Department he has been unable to find the evidence of this analysis.

Member Canup asked if there was a definition of the term abandonment in the Ordinance. He recalled a few years ago when the standard station was taken out of service on the corner and moved to Twelve Mile. He believed that there was something written that if a use ceased for thirty days…

Mr. Fisher interjected that there is a time period of thirty or sixty days. He stated that it is a very common Ordinance provision that Ordinances have included since the 1920’s. Essentially the Michigan Supreme Court decision makes the language a presumption that it has been abandoned. It throws the door open to the applicant to come forward to say that even though this amount of time did pass he/she did not have the intent to abandon. It is a presumption that can be rebutted by the property owner.

Member Canup felt that this was not the right place for a gas station and the applicant would need to provide the proper evidence to convince him. He indicated that it had been abandoned since 1993. He questioned if the tanks were still in the ground.

Member Kocan stated that she was reading the attorney’s letter and the Ordinance because the attorney did cite a section in the Ordinance, 2505(c). She read the citing "…if such non-conforming use of land ceases for any reason, for a period of more than six months. Any subsequent use of such land shall conform to the regulation specified by this Ordinance for the district in which such land is located." She interpreted that if it is determined that it is a non-conforming use, it ceased operation, it cannot come back (even as a non-conforming use after the six months) and it would have to comply with the TC-1 Ordinance.

Mr. Fisher indicated this kind of provision has been in Ordinances for years, however the decision of the Michigan Supreme Court in 1974 indicates that an intent to abandon needs to be shown. The provision essentially states that it is a presumption that six months is enough, however, if the property owner provides evidence then the presumption "goes out the window".

Member Koneda focused his point. He clarified if petitioner proved they had been trying to lease the building and have expanded the usages of the building, he questioned if this would then be cause for denial.

Mr. Fisher answered, no. He stated that it would not be grounds for denial. It would seem to indicate that they were continuing to use the property as a gas station. He noted a question that would accompany the idea of their attempt(s) to lease the property would include the question of if they were trying to lease it for anything else.

Member Nagy stated that case goes back to 1972. Therefore, she questioned if there had been other cases before the Supreme Court with regard to this issue.

Mr. Fisher indicated that there were a number of cases in the Court of Appeals and probably the Supreme Court, which were related to abandonment of non-conforming use and expansion. He added that most of the cases were of the variety that Member Mutch had referred to tonight.

Member Nagy questioned the set of circumstances were involved in that case to make the decision.

Chairperson Churella noted his agreement with the commissioners’ comments.

Ms. Brock asked if the Commission wanted to adjourn the project to a date specific.

Member Nagy answered, no. She indicated that she wanted to give the applicant enough time to gather the information the Commission has requested. She added that she would also prefer that Mr. Arroyo had enough time to research the information submitted.

Member Mutch felt that it would be the City’s burden to prove that the use has been abandoned. Therefore, he questioned if there was any information the City could provide to assist the Commission.

Mr. Evancoe indicated that the City would review the history of the Master Plan, one or two Master Plans back, the Zoning Ordinance and any previous versions. He added that a review of site plans would also be helpful.

Mr. Arroyo suggested contacting the Building Department and Department of Public Services to find possible records of inspection(s) or other information involved in keeping the site up to date.

Yes: Canup, Churella, Kocan, Koneda, Landry, Mutch, Nagy and Richards

No: None

Chuck Lower, Planning Consultant for GL Investments indicated that he has answers to every question that was raised in the discussion. He stated he would submit the information and would be prepared for discussion. He asked if the Commission’s expectation was to have everything submitted in writing.

Chairperson Churella stated yes.

Mr. Fisher stated that he should provide as much back-up material as possible.

Robert Jacobs, Attorney for GL Investments stated that he is a little disappointed. Previous to this about two years ago he had numerous conversations with the previous counsel, Dennis Watson. He was provided with the affidavit signed and about two inches thick of documents. He contacted Mr. Fisher in good faith and informed him of the previous discussion. He stated if he had the opportunity to be notified of the issues that would have been raised then he would have been prepared to address them. He expressed his frustration with the amount of money and time that has already been spent on Site Plans, environmental studies, engineering and Planning to answer the questions and to accommodate the new zoning. He expressed his disappointment of the last minute item to address without advanced notice. He restated that he would address the issue.

Chairperson Churella informed the applicant that once the needed information was submitted, the item would be placed on the next available agenda.

Mr. Jacobs thanked the Commission.

Member Kocan responded to the Mr. Jacobs’ comments. She stated the commissioners are not aware of what will be said or brought to the table. She noted that to her understanding a Planning Commissioner raised the issue and not the City Attorney. She stated that there is no knowledge of what would be requested in addition at the meeting. Therefore the Staff or City Attorney could not have any indication that a Site Plan would or would not be approved by the Planning Commission until the case is heard by the Planning Commission.

Mr. Jacobs indicated that he has addressed Planning Commissions and Councils for thirty-five (35) years in the Tri-County area. As a courtesy, he indicated that he is typically given the advanced notice if there is an issue of this nature. He clarified that he was not faulting anybody, yet merely expressing his disappointment with not being notified and given the opportunity to address the issue prior to the meeting.

This proposed condominium project is located in Section 25, at the northwest corner of Nine Mile and Haggerty Roads. The 3.627 acre site and is zoned RM-1 (Low-Density Multiple Family Residential) and the applicant is seeking Preliminary Site Plan

Tony Randazzo presented Trillium Village. He described the site as handsomely appointed, although the configuration is dense. The site is narrow in nature. However, with creativity, he indicated they were able to comply with the 45 degree rule and meet some setback requirements. He noted no objections with the apartments to the north and/or to the west and the receipt of letters from homeowners indicating no objections. He noted their compliance with the open space requirement at almost three-quarters of and acre, compared to the required less than ten percent (10%). In addition, there are elevation issues on the site. However, he felt confident that the proposed project would be an asset to the community.

Mr. Arroyo oriented the commission with the site location and its relationship to the surrounding properties. He located the subject’s site on the map in relation to Nine Mile, Haggerty Road and the City of Farmington Hills. The previously approved Palushaj Building (office building) is currently in its final site plan stages. He reminded the Commission that the properties were rezoned with the condition of one point of access to Haggerty Road serving both the office use and the Multiple-Family use. The condition has been reflected on the applicant’s Site Plan, as it designates no specific point of ingress/egress for its site only. Instead it is sharing its access with the office building and locates another access point off of Nine Mile Road, which could be used for both.

Mr. Arroyo did not recommend approval of the Preliminary Site Plan primarily due to the outstanding issues included in the review letter dated July 10, 2001. 1) The plan does not provide front, side and rear setbacks for the district. The applicant is requesting a variance of 30 feet for the front and 55 for the side and rear. The applicant would have to go before the ZBA to address these issues. 2) A complete lighting plan must be submitted that demonstrates compliance with all exterior lighting standards contained in Section 2511. The lighting plan issue could be resolved upon submission, however the setback issue needed to be resolved by ZBA or a modification of the Site Plan. An overview of setback, bulk, density and special conditions, which apply to Multiple-Family developments, were included in the packet. The proposed project meets the 45 degree orientation angle.

In regard to traffic, Mr. Arroyo recommended approval subject to the conditions of the review letter dated July 31, 2001. A cross-access agreement is required to facilitate the shared access, which would need to have the appropriate documentation approved by the City Attorney and submitted. Improvements associated with the Palushaj Building include an extension of a center left turn lane along with other improvements for the shared driveway. In the event the proposed project were to move forward with construction prior to the Palushaj Building, then the improvement would be part of the responsibility with the proposed project. Basically, the first project to move forward would justify having the improvements in place. He advised that this be monitored. The proposed private drive system is common with Multiple-Family development. (It is not a public road nor does it constitute as a private road.) He believed that fire trucks would be able to make the turn around. However, a moving van may have difficulty with off tracking on the interior island. He noted the possibility of recommending a slight concrete apron on the inside radius at Final Site Plan, to facilitate off tracking by larger trucks. He recalled this being done on the church, which was relocated to Beck Road south of Ten Mile. Regarding truck access and Fire Department access, Mr. Arroyo recommended the prohibition of on street parking, which would need to be posted appropriately. These signs would be reviewed at Final.

Ms. Lemke recommended approval subject to the conditions of her review letter dated July 15, 2001 being addressed at Final. She discussed some of the conditions. There appears to be interference with overhead utilities and canopy deciduous and evergreen trees. Show overhead locations on landscape plan and setback canopy trees 20 feet. The zoning for the site is RM-1 with R-3 to the southwest and west adjacent, and therefore screening is required. A 4’6" berm is required. The berm of 4’6" has been provided on the southwest property line. Heights needs to be increased on the western property line to meet the height as measured front the adjacent residential dwelling. She indicated that detailed sections of the proposed walls need to be provided. Opacity requirement will be reviewed in detail at Final. However, additional shrubs between deciduous and evergreen trees will be required.

Ms. Weber recommended approval of the Preliminary Site Plan from an engineering perspective in the review letter dated July 17, 2001. Water and sanitary sewer is available to service the site. The applicant is proposing detention, which will be shared with the Palushaj Building to the south. The Palushaj Final Site Plan indicates the detention is adequately sized to service both developments. The drainage from the basin will run south and connect into the Nine Mile Road storm sewer, where it will discharge. Ms. Weber noted a comment not included in the review letter. If the site were to move forward ahead of the Palushaj Building, then the petitioner would need to construct the storm sewer down to the Nine Mile Road discharge point and possibly obtain the necessary off site easements. She outlined the required easements. 1) A private maintenance and use agreement and easement for the shared detention basin and off-site storm sewer will be required prior to Final Site Plan Approval. 2) A private ingress/egress agreement for shared use of the drive entry off Haggerty Road will be required prior to Final Site Plan Approval. 3) The proposed 20’ wide off-site grading easement will be required prior to Final Site Plan Approval.

Chris Fox, Façade Consultant identified the proposed project as Region 1. In the review letter dated July 23, 2001, he indicated a positive recommendation for a Section Nine Facade Waiver could not be given at this time. He noted several items, which currently do not meet the ordinance requirements. The percentage of brick is required to be at least thirty percent (30%), which is proposed under the required percentage at the front and rear of the building. The use of vinyl siding is permitted at zero percent (0%) therefore; the proposed percentages exceed ordinance requirements. The use of asphalt shingles and trim both exceed the percentages allowed by ordinance. Mr. Fox noted the applicant had expressed to him the willingness to lower the roof pitch below 6’12", which would eliminate the asphalt shingles from the calculations. He indicated that the applicant was given samples of vinyl siding(s) that were allowed on other projects in the past and were willing to use the same vinyl siding, which would give the equivalency of wood. In respect to the ordinance requirement, the material would be considered equivalent to wood and would place the vinyl siding percentages in conformance with the ordinance. The elimination of the asphalt shingles would bring the percentages of brick above thirty percent (30%) and in compliance with the ordinance. He indicated that approval could be recommended if all of the mentioned changes were made. However, at this time, there has not been a plan submitted showing the changes.

Chairperson Churella announced he has received a letter dated June 22, 2001 from Gordon A. Poyhonen, Acting Fire Marshal for the City of Novi Fire Department, which states that the above plan has been reviewed and approval is recommended.

Member Richards announced that he has received a letter from Roger Christiansen 39624 Nine Mile Road, who wrote, "I own the property that is located immediately south of the above mentioned project. I have reviewed the applicant’s Site Plan at the request of the applicant. It is my feeling that this project will be an excellent addition to the community. I welcome this development as a neighbor and would support any variances and waivers that they may require to develop this small and challenging site. Please pass this letter along to the Planning Commission, Planning Staff and other Boards that you feel would benefit by reading this letter."

Chairperson Churella announced it was a Public Hearing and opened the Matter to the Public.

Seeing no one he closed the Public Hearing and turned the Matter over to the Commission for Discussion.

Member Canup stated that it appeared that there was overbuilding for the size of the site. The Ordinances were written for a reason and were not arbitrary. He asked Mr. Arroyo to recap the setback issues he mentioned.

Mr. Arroyo indicated that all setback areas do not meet ordinance standards. There is a thirty foot (30’) variance request for the front and a fifty-five foot (55’) variance from the side. The front setback requirements are seventy-five feet (75’) side, seventy-five feet (75’) in rear and the proposed project is effectively providing for a twenty foot (20’) setback situation.

Member Canup felt it would be tight and restated that the property is being overdeveloped. He stated that although it might be less profitable, the property could be developed with fewer buildings and meet the Ordinance. He stated that he would not support any motion to approve the proposed Site Plan as it has been presented.

Member Nagy agreed with Member Canup. She questioned where guests would park with the imposition of no off-street parking. She added that some of the driveway did not appear able to accommodate more than one car and therefore felt off-street parking was necessary. She suggested that fewer buildings and no 45-degree angle might provide for the necessities such as off-street parking.

Member Mutch agreed with the commissioner’s comments. The Site Plan does not meet the Ordinance setback requirements, which would be grounds for a denial. He stated that the property zoning has been in place. He suggested the possibility that the same property owners may have rezoned the property to the south to OS-1, reducing the amount of RM-1 property to work with and to a degree reducing their flexibility. Therefore, the degree of the property limitations was a known fact upon entering into the process. He wanted to offer the applicant direction. The RM-1 District offers an option of the ability to develop according to the standards of the RT-2 Family Residential District, which he felt might be similar in style to the proposal. The RT District has a lower density of 4.8 units per acre verses 7 units per acre. The RT District has setbacks similar to those of a Single-Family District at twenty-five feet (25’) and thirty-five feet (35’) reflecting the lower density nature of that use. He felt that although the presented plan does not meet Ordinance requirements, clearly there is a use of the property that would meet the RM-1 District standards with creativity. It would also meet the zoning requirements without requiring ZBA variances. He did not feel ZBA would grant a blanket variance as it would be unfair to the developers who developed according to the City standards. Therefore, an exception to the proposed property would be unwarranted. He stated that he would support a motion of denial. However, he encouraged the applicant to review the Zoning Ordinance and explore alternatives. He agreed with Member Canup’s comments regarding the attempt to propose too many units for the property size.

Moved by Landry, seconded by Nagy, APPLICANT WITHDREW REQUEST: In the matter of Trillium Village SP01-40 to deny Preliminary Site Plan Approval for the reason that the Site Plan does not meet the City Ordinances with respect to setback and no Lighting Plan has been submitted.

Member Richards agreed with the commissioners comments regarding the overbuilding of the property. He asked Mr. Arroyo to clarify the difference between an approved private drive and

drive.

Mr. Arroyo stated an approved private drive would meet the overall public, health, safety and welfare issues of the City, which means there is fire truck access, safe and reasonable ingress/egress and provide for reasonable access. Additionally, there are width requirements and other items included in the Ordinance.

Member Richards that he was not comfortable with the comment that a moving truck could not make the turn around. He stated this fact seemed to indicate that the property was being overbuilt.

Member Kocan stated that she would not support an approval for site plan with setbacks less than the Single-Family Residential of thirty-five feet (35’). She commented on the location of the berm being directly on the center of the property line. She questioned if this placement was due to underground utilities or due to the setback of twenty feet (20’). Section 2509 6b(3) of Zoning Ordinance states "Required earth berms shall be located at the lot line, except where such locations would interfere with underground utilities…" She clarified that the Ordinance does note that the berm could be located on the property line. A previous portion of Section 2509 states "The earth berm or wall may be placed upon the adjacent residential property in order to provide continuity with an adjoining berm or wall, provided that permission for such placement is received from the adjacent property owner(s)in the form of a recorded permanent easement for such berm or wall." Member Kocan indicated that there is not an adjoining berm or wall and she questioned why the issue was not addressed in the consultant review letters. She questioned the possibility that if the site were developed as RT; the requirement for a berm would no longer exist. She stressed her concern with having the proper setbacks between the residential properties. She questioned the reasoning for locating the berm on the property line.

Ms. Lemke stated she believed the reasoning was due to the utilities. She noted Ms. Weber believed it would be possible to "pushed up" the utilities. However, if it is pushed up, there might not be room for the sidewalk. She stated that it sounded like a physical constraint to the property rather than a utility problem.

Member Kocan clarified that if the berm is located on the property line, then easements would need to be provided from the residents, which at this time have not been provided.

Ms. Lemke answered, correct.

Member Koneda recalled the rezoning of the corner parcel to OS-1 and discussions regarding the difficulty involved with developing the remaining parcel. He felt the owner of the land (at the time of the rezoning process) understood that the common shared drive and the fact of the land being small would be a burden of his/hers and not the City’s. He stated that he would not accept the proposed setbacks. He noted the option presented by Member Mutch and a second option to eliminate buildings and have fewer spaces. He stated by tabling the matter it would give the applicant the opportunity to go back and attempt to meet the setback requirements by downsizing the development. Unlike a denial, it would be able to return to the commission more quickly. However, if the request were denied, then the applicant would need to start the process over again. He asked Mr. Fisher to verify this information.

Mr. Fisher indicated if the Commission denied the Site Plan for the reason(s) of failure to meet the setback requirements then the applicant would have the right to appeal to the ZBA. If the ZBA granted the variance, then it would return to the Commission for Site Plan approval.

Member Koneda asked the City Attorney to clarify the correct action that should be taken. He addressed the applicant to express their desire.

Member Mutch interjected and suggested obtaining feedback from the Staff. He stated that he was having a difficult time envisioning a plan that meets the requirements that is not a brand new plan. He asked if Member Koneda felt the plan could meet the requirement(s).

Member Koneda stated if five (5) units were eliminated, the site plan could be in compliance.

Member Mutch asked Mr. Arroyo if this could be done without plans being resubmitted.

Mr. Arroyo stated if the intent was to have the application meet all ordinance requirements, then the plan would not appear anything as it has been presented. However, if the intent develop the plan under the RT scenario, then it would be a different project. He suggested that the Commission give direction to the applicant as to what they would be willing to accept on the next submittal. He reminded the Commission that the applicant presented the drawing of the alternative for what would fit according to the Ordinance on the site.

Member Koneda stated if the motion to deny based the setback issue was carried, then the applicant could go before the ZBA and possibly be granted a variance. The Commission would then be in a position to have to grant Preliminary Site Plan Approval.

Mr. Fisher added that the site plan would have to also meet other ordinance requirements.

Member Koneda stated that because the situation involves a variance so great it would not be in the best interest of the Commission to take that course of action. Member Koneda withdrew his comments to the petitioner.

Mr. Evancoe felt that Member Koneda’s comments were sensible. He explained that if the matter were tabled then the issue(s) could be addressed. He did not feel it the Commission would want to have the matter go before the ZBA and have the variances potentially granted.

Member Koneda addressed the petitioner. He asked if he was willing to rework the plan to meet setback requirements.

Tony Randazzo answered, yes.

Member Koneda informed the applicant that this would most likely mean the loss of some units.

Tony Randazzo stated that he was prepared to address the matter. He stated that he preferred to table the matter. He did not feel that the configuration would have been much different when the office parcel was rezoned. He added that they only squared off the property. He did not feel that the reciprocal detention pond would have made any difference in the layout. He agreed with the option presented by Member Mutch. However, he questioned if the 45-degree rule could be abandoned. He expressed the desire to create an expanded and attractive site with a lot of landscaping.

Member Mutch explained the advantage to the RT is that it would not be a rezoning and is permitted under RM-1. The 45-degree rule would not apply because of the more residential nature of the RT use. He noted that this was another reason to consider this scenario as opposed to attempting to create another RM-1 site plan.

Member Koneda stated a motion to table would allow the applicant to make the adjustments to meet the setbacks requirements and entail the RM-1 zoning. The applicant could take the existing plan and eliminate buildings required to meet the setback requirements. He stated if the applicant was to consider a different zoning, then it would become a brand new site plan. Therefore, he questioned if the appropriate action would be to allow the petitioner withdraw the request for Preliminary Site Plan Approval.

Member Mutch stated there were two issues.

Member Koneda interjected and stating that it would have new Site Plan requirements with a new Site Plan proposal.

Member Mutch agreed and shared Member Koneda’s concerns regarding the ZBA. However, he felt the consultant was indicating that the modifications needed to meet the RM-1 specifications would essentially result in a brand new plan. The Commission would not be following the proper procedure(s) by to allowing a brand new plan through an action of tabling the matter. The proper procedure would be for the applicant withdraw or the Commission to deny and the applicant to submit a brand new plan.

Member Koenda agreed. He stated a motion to table would be around the existing plan, giving the opportunity to make the modifications to the existing plan to bring it into conformance with the setback requirements. As second option, the petitioner could withdraw the request, allowing him/her to "stay in the system" and review the recommendation(s) regarding RT. He asked Mr. Evancoe and Mr. Fisher for direction on the matter. Member Koneda indicated that he did not feel a blanket denial would benefit anyone involved in the matter.

Mr. Evancoe agreed with Mr. Arroyo. The next plan would be completely different. He did not find an option for the applicant to meet the setback requirements with a plan similar to the plan already presented to the Commission. Therefore, as a brand new plan, he felt it would require a thorough review process, such as a new submission would be handle. He did not find a preference in the process to obtain that result.

Member Koneda clarified that the Commission could deny the request and the applicant would start the process over or the applicant could withdraw his/her petition knowing he/she would need to start over again.

Member Mutch answered, correct. He supported the idea of the applicant withdrawing the request because there would not be an issue with the Zoning Board of Appeals.

Member Koneda agreed. He was concerned with the granting of a denial and the applicant appealing to the ZBA for reduced setbacks. He felt precedence would be set that would not benefit the City of Novi. He felt confident that the ZBA would not grant the petitioner’s request, however, the possibility exits.

Member Mutch did not feel tabling the matter would accomplish anything.

Chairperson Churella asked the petitioner if they were willing to withdraw their request and return with another plan.

Mark Avenak, of Alexander Bogaerts & Associates explained the site configuration was difficult to layout. He felt that the Site Plan identified the site as almost unbuildable. He stated the site plan meets RM-1 ordinance requirements with the grid plan. The buildings are oriented north/south and twenty (20) units can be developed on the site. He indicated that the attempt to demonstrate to the Commission that the site was unbuildable at forty-five degrees with only six or eight units. Therefore, he wanted to discuss the site itself. However, if the Commission was not comfortable with the proposed setbacks then, he suggested returning with a grid plan that meets the ordinance. Alternatively he suggested they could discuss a reasonable setback. He questioned the Commission felt was a reasonable setback if twenty feet (20’) was not. He stated that seventy-five (75) was not reasonable and created an unbuildable condition, which would send the case to the ZBA. He stated that not all sites could meet the Zoning Ordinance. He suggested the Commission table the matter and with direction for what a reasonable perimeter would be. Mr. Avenak noted the same goal as the Commission to create a project that the community would be proud of.

Chairperson Churella recalled the zoning for the site. He recalled it was intended to be used for the elderly.

Tony Randazzo answered, correct.

Chairperson Churella recalled the homes for the elderly and questioned the concept was not feasible due to the configuration of the site.

Mr. Randazzo indicated that Marriott withdrew from the concept.

Chairperson Churella recalled approving a site plan for the elderly for the site.

Mr. Randazzo agreed. He indicated there were two and the Marriott felt it was too much product and withdrew.

Chairperson Churella clarified that the site was buildable upon approval of the Site Plan for the elderly.

Mr. Randazzo stated that the Site Plan was one large building.

Chairperson Churella indicated the Site Plan was approved.

Member Mutch disagreed with Chairperson Churella. He did not recall approving the Site Plan.

Chairperson Churella directed Member Mutch to research the records. He indicated the land split was because it was for the elderly.

Member Mutch indicated that the petitioner may have proposed the idea, however, he did not recall an approval.

Chairperson Churella directed Mr. Arroyo to respond to the matter.

Mr. Arroyo recalled Pre-Application meetings with several proprietors related to an elderly housing project or assisted living. However, he did not recall a Site Plan coming before the Planning Commission. He noted a concept Site Plan might have been presented, however he did not recall a Preliminary Site Plan coming before the Commission.

Mr. Avenak indicated the elderly housing project was a completely different product involving a higher density, which was self-contained.

Chairperson Churella asked the Commission if they desired to table the matter.

Member Koneda indicated the two options again. 1) Option to table the matter to allow the applicant to meet the setback requirements. 2) Option for the applicant to withdraw their request and explore alternative construction options that would still meet the RM-1 zoning (RT Option).

Mr. Randazzo noted the preference to avoid building a "barrack-looking" development and desire to follow through. He requested the Commission define the setback flexibility that they could work with. He understood the density would decrease to have a more interesting product.

Member Koenda noted his understanding to the petitioner regarding his viewpoint. However, he felt the applicant’s request was for a large setback variance, which was unlikely to be granted. He clarified the options to the applicant. He indicated that the Commission could vote on the motion on the floor. If the request is denied then the applicant could proceed to the ZBA. He explained if the ZBA Variance was not granted they would have to start the process over again. However, if the ZBA Variance were granted then the Commission would be in a position to have to grant approval.

Member Nagy asked where the proposed parking would be located other than the driveway area.

Mr. Avenak stated all the drives are an excess of twenty-five feet (25’) in length. Therefore, each garage is a two-car garage and with each apron having at least two (2) cars or more. He anticipated some of the parking along the southern edge of the street.

Member Nagy recalled the comment indicating no off-street parking.

Mr. Arroyo clarified that there should be no on-street parking anywhere within the elongated island on either side of the street.

Member Nagy asked he was referring to the cul-de-sac.

Mr. Arroyo indicated no on-street parking within the entire cul-de-sac area. However, there could potentially be on street parking toward the eastern or south side.

Mr. Randazzo stated that it was not any different than any other residential subdivision.

Member Nagy indicated her question was derived based on the fact of her residence in a condominium development. She noted that she was not familiar with the site’s history. She agreed that a creative development was preferred. However, she did not feel that the hardship should fall on the City because it has been demonstrated in the past that the site is buildable. Therefore, she preferred the applicant return with a new Site Plan or consider Member Mutch’s comments.

Member Landry interpreted the applicant’s desire to have the Commission compromise the setback requirements. He informed the applicant that he was not prepared to take this course of action due to situations that have occurred with other Commissions and Cities who had given indications. These indications could result with the applicant satisfying the Commission’s indication and then the plan is voted down. For example, to make any implication(s) that if the applicant brought back a plan with X-number of units eliminated and a fifty-five foot (55’) setback then the Commission would grant approval. Member Landry explained that the onus of whether to withdraw or not fell on the applicant. He indicated that if the applicant chose to withdraw and return to the Commission, then decision(s) would be made at that time. He stressed that he was not in favor of the Commission giving any indication(s) that they could "live with" anything less than the required seventy-five feet (75’).

Member Canup indicated that the Planning Commission does not have the authority to waiver from the seventy-five feet (75’) or fifty feet (50’). He stated that the authority falls within the Zoning Board of Appeals. He explained to the petitioners that the Planning Commission does not have the power to grant a variance for the setbacks.

Mr. Randazzo clarified if they would still be in the system and start from scratch if they withdrew the request.

Member Canup indicated they would start over if they withdrew the request. The alternate option would be to table the matter and allow the applicant to revise the Site Plan.

Member Mutch clarified that the table issue should not be part of the discussion. He understood the applicant’s desire to stay in the process. However, the revisions that would be involved would require the applicant to resubmit a new plan. The process does not allow for a plan to be redone completely without a re-submittal. Therefore, he did not feel that tabling the matter was a viable option. He felt the best solution would be for the applicant to withdraw the request and explore the additional options with the RT. Member Mutch stated if the Site Plan was denied the motion should clearly define the viability of the RT option, which the applicant chose to not explore.

Chairperson Churella asked the petitioner if they preferred to withdraw the request or have the Commission vote on the matter.

Mr. Randazzo withdrew the request.

This proposed project is located in Section 17. It is on the northwest corner of Grand River and Beck Roads. The site is zoned B-2 (Community Business District). The applicant is seeking Preliminary Site Plan Approval and a Section Nine Façade Waiver.

Kevin Garden represented Outback Steakhouse.

Chairperson Churella requested that the applicant speak to the façade only.

Member Koneda asked if there would be a review of the Staff Reports or discussion only.

Chairperson Churella indicated that it would be discussion.

Mr. Evancoe stated all of the consultant reviews were all clean with the exception of the façade. Therefore, the consultants would not have to give a verbal report.

Member Kocan indicated that she pulled the item from the Consent Agenda for discussion. Therefore, she suggested addressing her issues and having the consultant’s participate if necessary. She thanked the applicant for providing the visual. She noted the variances requested and recognized the need for the proposed project to be consistent in appearance with the overall development. She clarified that this was not her issue.

Member Kocan noted the parking lot located on the southwest corner of the property is on an angle making the parking spaces on an angle. She questioned if the road needed to be curved due wetlands. She felt it appeared dangerous and questioned this was previously done in the City.

Mr. Arroyo explained that the road shift is due to the City Requirement that the radius of the drive not extend beyond the side property line. This situation has occurred in the past in which the drive is located close to the property line causing the road to swing out to meet ordinance standards.

Member Kocan stated this effects the parking lot. The result is there is not an L-shaped or ninety degree angle on the parking lot.

Mr. Arroyo indicated the proposed project does. However, there have been other situations that did not and the applicant worked around it.

Member Kocan clarified if there are parking standards to allow a configuration that is larger at the front end, similar to a reverse lot plan. She clarified that the proposed is consistent with the City Ordinance providing.

Mr. Arroyo agreed that the intent of Ordinance parking standards would be met providing the minimum width is met at the entry point (the narrow part).

Member Kocan stated the front of the building faces south and the handicap parking is located on the West Side of the building. She questioned if the handicap parking would have access to the side door or if they have to walk around to the front of the building. She noted the "take away" door does not clearly identify if it can be utilized for access into the building. She requested the applicant explore a more inviting entryway for those that are relegated to park on this side of the building. The entryway should be indicated as an entrance and not only take away.

Mr. Garden explained that the "take away" door is for "to go" orders. Employees would to run food out to the customer’s car by means of this door. He clarified that it is not a main entrance.

Member Kocan clarified if the handicap customer would have to walk completely around to the front of the building.

Mr. Garden stated the parking was placed in its location to avoid having the handicap cross a "drive-out" from spaces located across the parking lot. The proposed location allows the handicap to utilize the sidewalk as quickly as possible. He suggested creating an exit on the side of the porch to allow for access as opposed to walking around to the front of the building.

Member Kocan recommended that the applicant explore the options.

Moved by Canup, seconded by Richards, CARRIED UNANIMOUSLY: In the matter of Outback Steak House SP 01-41 to grant Preliminary Site Plan Approval and a Section Nine Facade Waiver contingent upon a more inviting and less inconvenient handicap access being provided and contingent upon consultant’s comments and recommendations.

Yes: Canup, Churella, Kocan, Koneda, Landry, Mutch, Nagy, Richards

No: None

Member Nagy did not feel it was necessary to change the starting time and ending time.

Moved by Nagy, seconded by Kocan, CARRIED (6-2): In the matter of 2002 Planning Commission Starting Time and Ending Time to not make any changes to the 7:30 p.m. start time and if the meeting continues past the current ending time of 11:30 p.m., then the Commission will determine whether or not to proceed.

Member Mutch suggested changing the start time to 7:00 p.m. He stated the School District begins School Board meetings at 7:00 p.m. He felt this would enable residents to contribute their comments to the Commission on controversial issues without having to wait until 9:30 p.m. or 10:30 p.m.

Member Koneda indicated that the motion is to not change what currently exists. Therefore, he questioned if action on the motion was necessary.

Chairperson Churella asked the Mr. Schultz if a vote was necessary.

Mr. Fisher stated that if no change was being made then it was not necessary to vote on the matter. However, because the matter was placed on the agenda, he suggested making some disposition.

Yes: Canup, Kocan, Landry, Mutch, Nagy, Richards

No: Churella, Koneda

Ms. Brock indicated the attempt to coordinate the meeting dates on the second and fourth Wednesday. However, there are occasions in which the date conflicts with City Council. Therefore, it was moved to the first and third on occasional weeks.

Mr. Evancoe stated the point was to alternate.

Chairperson Churella asked the commission for a motion.

Member Richards stated that theoretically the meeting dates would be the second and fourth, with special circumstances.

Chairperson Churella indicated on occasions such as a holiday.

Member Koneda noted the idea was to not have the Planning Commission meetings on the same week as the City Council meetings. However, there are two instances with Planning Commission meetings on consecutive weeks. He stated City Council meets on Mondays, ZBA meets on Tuesdays, Planning Commission meets on Wednesdays and Parks and Recreation meets on Thursdays. He did not understand why the Commission was choosing to change their meeting schedule having to work around other meeting schedules. He felt that the meetings should not be changed because it did not seem to be accommodating the original intention(s).

Member Richards understood the meeting changes were intended to support the Planning Department in their efficiency. He suggested meeting the second and fourth week on Wednesdays. Therefore, the Planning Commission would be meeting to opposite week of the City Council.

Member Nagy reminded the Commission of her Board Meeting commitment on the second Wednesday of the month until May 2002.

Chairperson Churella asked Member Nagy if her Board Meeting could be changed.

Member Nagy stated she would explore the option. However, she reminded the Commission of Member Piccinini’s commitments until June 2002. She noted that she did not want to disregard Member Piccinini’s time.

Member Kocan stated if the meeting schedule remained on the first and third Wednesday of each month, then twelve meetings of the year would occur on the same week as a City Council meeting. If the dates were changed to the second and fourth Wednesday, then there would also be twelve meetings of the year would occur on the same week as a City Council meeting. Switching to Tuesdays would have one meeting on the same week as City Council, however, it would create three back to back meetings in the year. She was not in support of the consecutive meetings. She indicated that they should be sensitive to the people that accepted the job, knowing that the meetings were the first and third Wednesday of each month. She noted that they might have not applied for the job if they were not available on the first and third Wednesdays. Therefore, to ask people to switch mid-year was not considerate of their previous commitments. Tuesdays created two meets that would occur after holidays. She disliked having public hearings on the Wednesday after the holiday and disliked more so the idea of a Tuesday after a holiday. She requested the Commission meet on a Wednesday for the week of Memorial Day and Labor Day. However, this creates a situation of meetings on Tuesdays and Wednesdays, which she did not have a problem with providing that notification appropriately given. She questioned if the consultants were available on a Tuesday schedule. She recommended that if the meeting was changed to Tuesdays then the packets should be distributed on Thursdays.

Mr. Arroyo stated that his office could accommodate the Tuesday schedule.

Ms. Lemke indicated that her office would not be affected by the changes.

Moved by Canup, seconded by Koneda, CARRIED (7-1): To keep the Planning Commission Meetings as scheduled on the first and third Wednesday of the month.

Yes: Canup, Churella, Kocan, Koneda, Landry, Mutch, Nagy,

No: Richards

Moved by Nagy, seconded by Richards, CARRIED UNANIMOUSLY: To cancel the Planning Commission on November 21, 2001 and move the agenda items to the first meeting in December.

Yes: Canup, Churella, Kocan, Koneda, Landry, Mutch, Nagy, Richards

No: None

None

None

None

Moved by Mutch, seconded by Koneda, CARRIED UNANIMOUSLY: To adjourn the Regular Meeting of the Planning Commission at 10:00 p.m.

Yes: Canup, Churella, Kocan, Koneda, Landry, Mutch, Nagy, Richards

No: None

________________________________

Donna Howe - Planning Assistant

Transcribed by: Christine Otsuji

November 21, 2001

Date Approved: December 19, 2001