REGULAR MEETING – ZONING BOARD OF APPEALS – CITY OF NOVI

CIVIC CENTER – 45175 TEN MILE RD.

Tuesday – April 6, 1999

The Meeting was called to order at 7:32 with Chairman Brennan presiding.

ROLL CALL

Present: Members Brennan, Antosiak, Bauer, Harrington, Sanghvi

Reinke (late 7:40 p.m.)

Absent: Member Meyer

Also Present: Donald M. Saven – Building Official

Kelly Schuler – Staff Planner

Alan Amolsch – Ordinance Enforcement Officer

Nancy McKernan – Recording Secretary

Chairman Brennan indicated Mr. Meyer is excused and in lieu of his absence we expect Mr. Reinke at any moment; he typically comes here from Dearborn so I would assume that he has some traffic issues to deal with. At this point we do have a quorum with five (5) Members present. The Zoning Board of Appeals is a Hearing Board empowered by the Novi City Charter to hear appeals seeking variances from the application of the Novi Zoning Ordinance. It takes a vote of at least four (4) Members to approve a variance and a vote of the majority of the Members present to deny. At this point we do have five (5) Members, and a Full Board consists of six (6) Members and since there are only five (5) here and you need four (4) votes for an approval; those petitioners who wish to table at least initially; what we will do is to call cases and if you would like to table we will go onto the next and then you will be heard when Mr. Reinke arrives.

APPROVAL OF AGENDA

Chairman Brennan indicated with respect to the Agenda, we will call the cases in the order that they are written. If there is still only the five (5) Members we will table as we go through the Agenda. Are there any other changes to the Agenda? Hearing none, all in favor of approving the Agenda as written; please say aye. All ayes, Agenda approved.

APPROVAL OF MINUTES

Chairman Brennan indicated we have the minutes of the March 2, 1999 Meeting. Are there any corrections, changes, deletions? Hearing none, all in favor of approving the minutes of the March 2, 1999; please say aye. All ayes, minutes approved.

PUBLIC REMARKS

Chairman Brennan indicated this is the Public Remarks section. This is the portion of the Meeting where people are allowed to make comment to the Board. All comments related to a case on the Agenda should be held until that case is called. If anyone wishes to address the Board on any matter or case that is not on our Agenda tonight, please come forward. No one wished to be heard at this time.

Continuation of case filed by Lee Mamola, representing Johnson Group Services. The applicant is proposing to construct a building approximately 25,000 square feet in an I-1 zoning district and is seeking a variance for the berm, for property located at the southwest corner of Grand River and Taft Roads.

Chairman Brennan inquired would you like to start, as Laverne has heard the previous testimony?

Lee Mamola: We would like to pass at this time and wait for Mr. Reinke to show up.

Metro Detroit Signs, representing Marriott TownePlace Suites is requesting a 4’6" height variance to allow for the placement of a 7’ x 4 3 ¾" (30.17 sq. ft.) ground sign with the height from grade being 9’6", for property located at 42600 Eleven Mile Rd.

Maurice Taitt was present and duly sworn.

Maurice Taitt: Basically we are requesting a variance in height for this 30.17 square foot sign which the square footage is within the allowable limits but basically in order to meet the setback requirement which I think is 63 ½ feet from the centerline; but the way that the topography is on the property, as you should have seen if you saw the sign; the ground slopes away from Eleven Mile Road and we are wanting to basically have a higher base so that the sign is visible from Eleven Mile Road. That is the reason for the request for the height variance. We have also have a small office sign but that is something like 3 square feet which I think is permissible. That is pretty much it.

Chairman Brennan indicated there was a total of 14 Notices sent to adjacent property owners. There was no written response received.

AUDIENCE PARTICIPATION

There was no audience participation.

DISCUSSION

Alan Amolsch had no comment.

Kelly Schuler had no comment.

Vice-Chairman Bauer: I have driven by this sign 3 times now since you have had it up. I think it is too high. I think that you can live within the ordinance. At this time I cannot support the variance.

Member Harrington: I concur with Mr. Bauer. The site lines unlike many of the height variances that we consider; the site lines going to that particular sign are really quite clear and unobstructed. It can be seen from quite awhile and at least the rendering that we saw and I think that a ground level sign that is within ordinance is going to do the job for the hotel. One question that I did have is are there other signs that are going to be on the premises which are permitted by code that we don’t have renderings for? Are there other identification signs for the Marriott or the like?

Maurice Taitt: There is one other that you should have seen out there, a small sign that directs the guests to the registration area. I think that it is called an office sign.

Member Harrington: Is the intent of the height variance that you requested here, to make the sign visible from Crescent Blvd? What is the north/south road there?

Maurice Taitt: Town Center. That is not the intent. The intent is that when the people are driving on Eleven Mile that they can see. That is the intent.

Member Harrington: I agree with Mr. Bauer, I thought that it was higher than it has to be. It is pretty high.

Maurice Taitt: What we showed there is where the base would come below, we didn’t do the base on the rendering. We wanted the top of the base to be slightly above the level of the street at that point.

Chairman Brennan: I might add that your requested height is nearly twice that of what the ordinance allows. I don’t know is there is any possibility of movement closer to what the permitted height may be. That is an option, if the petitioner would like to discuss.

Maurice Taitt: Does the Board understand my comment about where the height is measured as opposed to the fact of where the existing grade of Town Center Drive is and the fact that it is about 3’ lower than where the sign is located than the grade of the edge of the pavement on Eleven Mile. We attempted to show that in the cross section on the sign.

Chairman Brennan: I think that we are pretty clear at least from the grade to the top of the sign that it is 9 ½ feet.

Maurice Taitt: That is true, but, if you can see where Eleven Mile Road is shown on the drawing; the grade on Eleven Mile Road is significantly higher than the base grade of where the sign is located. In other words the sign is in a bit of a depression. The drive entrance into the TownePlace Suites Hotel slopes downward from Eleven Mile Road. In order to meet your setback requirements of 63 ½ feet that determined where the sign had to be located. It was our opinion that this sign would not be easily visible if we kept within your height limit. For example, when we come back for the Courtyard we have a monument sign for that on Town Center Drive and we don’t have that topographic situation there, so we are well within the 5 foot height limit there.

Chairman Brennan: Let me update Mr. Reinke. We have skipped the first case on the agenda as the petitioner asked that we wait for you. This is the second case and we are in the discussion; if you have any questions regarding the Marriott sign.

Member Reinke: The only thing that I am gathering from the discussion here is that we are talking about the height and I think that I am also picking up that the height requested is exceeding what is needed.

Member Sanghvi: It is almost twice the allowed.

Maurice Taitt: May I make a request that instead of establishing grade, can we establish the base grade to be that of Eleven Mile Road. It would be 5 feet above the grade of the edge of pavement at Eleven Mile Road, where the sign would be located.

Vice-Chairman Bauer: The only thing that we have to go by is your rendering and the actual sign.

Maurice Taitt: I understand that, but if we can agree that we can measure our 5 feet height in height…

Chairman Brennan inquired of Alan Amolsch: Can you give us some help here?

Alan Amolsch: Not being an engineer, no.

Member Reinke: What is your estimation that you are sitting below grade of Eleven Mile Road now?

Maurice Taitt: Three feet. In other words the grade at the centerline of the sign is about 3 feet below the edge of pavement on Eleven Mile Road at that particular point. That is where this whole variance request came into being.

Member Reinke: What is there in that grade that would obstruct the view of the sign?

Maurice Taitt: Well, the fact that it is 3 feet below the grade of the road; meaning that people have 3 feet less of the sign to see.

Chairman Brennan: If I understand your argument and you needed 3 feet just to get even and the sign allowance is 5 foot; then your request should be 8 foot and not 9 foot 6 inches.

Maurice Taitt: What I am saying now is that we would be happy to live with 8 feet; we feel that would be reasonable.

Chairman Brennan: So we are from 9 foot 6 inches to 8 foot. Any discussion on the revised request?

Member Harrington inquired of Alan Amolsch or Don Saven: When you are dealing with a depression like this are there restrictions on the developer or the owner from building up the grade in a particular area to ground level?

Don Saven: I think that his issue regarding engineering of the site in regards to drainage and draining purposes that might be affected by the placement of the sign in that area by building up the grade.

Alan Amolsch: Also, the ordinance does not allow you to artificially raise the land or the grade.

Member Harrington: So the gentleman is sort of stuck with the topography of the land as he finds it.

Alan Amolsch: That is right. We measure the sign height from finish grade to the top of the sign structure.

Member Reinke: If there was something really obstructing it, I would see a need for it. But, I think it is going to visible in that direction and I don’t think that it warrants going to that height.

Vice-Chairman Bauer: I agree.

Chairman Reinke: Just for the record we do have a revised request for 8 foot.

Moved by Vice-Chairman Bauer,

Seconded by Member Reinke,

THAT IN CASE NO. 99-015 THAT THE VARIANCE REQUEST BE DENIED DUE TO INSUFFICIENT HARDSHIP. IT HAS BEEN PROVEN FROM THE SIGN ITSELF AS BEING VISIBLE.

Roll Call: Yeas (5) Nays (1) Harrington Motion Carried

Chairman Brennan: This is a continuation of a case filed by Lee Mamola, representing the Johnson Group Services. The applicant is proposing to construct a building of approximately 25,000 square feet in an I-1 zoning district and is seeking a variance for the berm for property located at the southwest corner of Grand River and Taft.

Chairman Brennan: I might add that at our last meeting there was a significant concern from the adjoining neighbors and we asked that you meet with them and to see if you could work something out. That is how we left it.

Lee Mamola: Yes sir, that is essentially how we left it.

Chairman Brennan: You are still under oath.

Lee Mamola: For the Board’s benefit and for anybody in the audience that is here tonight that was not here at the other presentation I would like to take a minute or two and quickly hit the highlights of our previous presentation.

Lee Mamola: This involves approximately a 4 acre site at the southwest corner of Taft and Grand River. At the previous presentation we talked about the nature of the hardship on this site, being bounded on three sides by some rather serious setback issues; being that Grand River is treated as a front yard setback, from Taft Road it is treated as a front yard setback and the Andes Hills Condominium Development is a residential zoning district to the south, and it has some other rather significant setback issues as it is residential. This is what is referred to as a tier 2 use. The site also, as we outlined before, goes from a high point at Grand River and slopes downward towards Andes Hills and quite a significant difference over the length of that site. We are also required to construct a detention basin on this site. When we here in January with the previous site plan, we were seeking the elimination of the requirement to construct what the ordinance would require a 10 to 15 foot tall berm. We did have some communication after the Meeting in January when our request was tabled with the petitioner in the lobby and when we outlined the design and the intent of the plan we also subsequently had some additional information come to us with regard to an update of the boundary survey and that affected some of the design and layouts of the site. After hearing the neighbor’s concerns to the south and what they wanted, we then took a different look and then re-analyzed some of the layout of the building floor plan, some other setback issues, some other engineering issues and the bottom line is that instead of having no berm and just dense landscape at the south border; we have in fact already submitted plans to the Planning Department for a 13 foot tall berm. The ordinance requires a 10 to 15 foot tall berm and we have a 13 foot tall berm.

Lee Mamola: We have also done some other things. The neighbors were previously concerned about the fact that we had our parking approximately 80 feet away from their property line and we have moved that back a distance of 100 feet from the property line and thereby no longer requiring a Planning Commission waiver (which they had granted one previously for 80 feet) so this brings us much closer to alliance with all the other ordinance requirements. There is a curb cut coming off of Taft Road at a preliminary meeting that we had in December with Rod Arroyo and he felt that by moving this curb cut to the north and not to much to the north that it affected a concern for the Grand River and Taft traffic; but we no longer needed a waiver from the Planning Commission for Andes Hills Court to this drive, but it did move to the north and in his recent review letter of a week or two ago he still states that we do require a waiver from the Planning Commission for the drive, but it is much less of a waiver than we had before.

Lee Mamola: The building also is moved back away from the residential towards the north. We have 2 cross sections here representing the differences. The lower is the previous site plan, the cross section Andes Hills a moderate 3 foot berm with some plantings and trees in the background and a detention pond, the parking and then the building. You can see the difference as we are having a 13 foot tall berm, detention pond and parking is farther away as is the building farther away. I think that we have come a very long way in living up to the true intent and letter of the law. We are 2 feet away. I came before you in February and asked to be heard in April because of that time I really felt that we would not have to come and we could make the 15 foot tall berm. My engineer says that it is not possible and we can only get it to 13 feet.

Lee Mamola: I also had a conversation with a developer, Mr. Valbena of Andes Hills Ct. earlier today and I told him that I thought that what this really represents and what it comes down to and one of his primary concerns and those people that live in those housing units there; when they bought those housing units he represented to them that any project built on that industrial property would have to have a 10 foot tall berm and meet all ordinance requirements. It has only been recently that we went from a 10 foot tall requirement to a 10 to 15 tall berm requirement. But our plan meets all of the objectives and intent of what Mr. Valbena represented to the buyers in Andes Hills Ct.

Lee Mamola: We really have given this our best effort and I think that when you look at the nature of the topography and how it has to work with slope and the combination with the detention basin, it can get quite involved in a technical explanation. Thank you.

AUDIENCE PARTICIPATION

Felix Valbena: I represent the homeowners of Andes Hills. Based on the conversation that I had with Mr. Mamola I understand that it satisfies the interest of the people who live in Andes Hills, with the 13 foot high berm, with the landscaping and the setback is within the guidelines. So we have no objection and we support the Johnson Group to develop that and to build the building that they are proposing.

DISCUSSION

Don Saven had no comment.

Member Reinke: If he is having a 13 foot high berm, why is he here?

Chairman Brennan: Well it says 10 to 15. I was going to ask for a summary of the variance requests are and I was assuming that it was the placement of this in an I-1 zoning district; is that all that is left? What is your interpretation of the variance?

Lee Mamola: It depends upon who you talk to in City Hall, one person says they believe that we do not need a variance because we are within the 10 to 15 feet. Another person will say that the berm shall be 10 foot at one end and maybe 15 feet at the other end. I think that at some point in time the Board will have to render an interpretation on that. However, in talking with Linda Lemke on this question, just today, she tells me that the 15 foot requirement is to be eliminated and it is in the works of how they go about in changing ordinances and that a 10 foot berm will be the new requirement in the future.

Member Harrington: In that sense, so we will know what we are doing for our citizens; are you telling me that it is 10 to 15 feet? Where does that come from? Is it an average of one end to the other end?

Lee Mamola: That is a good question. We are meeting the intent of the ordinance by providing a berm which is within the 10 to 15 foot designation, at 13 feet we are right in the middle.

Member Harrington: Is it 10 feet or is it 15 feet?

Lee Mamola: Our berm is 13 feet.

Member Harrington: I know and understand that. Does the ordinance state 10 feet or does it state 15 feet? Or does the ordinance say it can be 10 to 15 feet?

Lee Mamola: Ten to 15 feet is what the ordinance states, yes sir.

Kelly Schuler: The applicant is correct. It is 10 to 15 feet. I think that the leeway is there for the Planning Commission in cases where it may be a heavier use and for the different degrees of opacity of the screening and the landscaping. Right now I am looking at the ordinance and it does read that it should be a minimum of 10 feet; so they need to have at least 10 feet.

Member Harrington: Does it say a minimum of 10 to 15 feet?

Kelly Schuler: No, it just says a minimum of 10, at least 10 feet.

Chairman Brennan: So we now have a plan that is agreeable to the adjoining neighbors, but is requiring no variances.

Lee Mamola: It depends upon who you ask for the interpretation.

Member Reinke: I think that the petitioner has worked around the property and the layout to the maximum extent that he can; but if the ordinance says that he is allowed a 10 to 15 foot high berm and he is coming in with 13 foot; what are we giving him a variance for? There is no variance that is needed.

Vice-Chairman Bauer: I agree.

Don Saven: The only thing that I would bring up is that he was requested to come back to the Board, that was the first thing. The second thing was the issue of the capacity based upon the residents to the south and whether or not that was going to be submission. He meet the requirement of the ordinance.

Member Reinke: I think that what they worked out with the residents and the resolution that they came up with and to what they were initially requesting and this is considerably different. It took care of the residents needs and also in the process met the City’s zoning requirements.

Member Antosiak: Based on the discussion here, if the Board thought that it would be appropriate I would be willing to make a motion.

Moved by Member Antosiak,

Seconded by Member Sanghvi,

THAT IN CASE NO. 98-099 THAT THE BERM AS MR. MAMOLA HAS DECRIBED IS IN COMPLIANCE WITH THE ORDINANCE.

Roll Call: Yeas (5) Nays (1) Harrington Motion Carried

Case No. 99-017 filed by Arnold Serlin, representing Bristol Corners West

Arnold Serlin is requesting to install an entranceway sign 2’6" x 20’ in the island at West Road and South Lake Drive at the Bristol Corners West Subdivision No. 2; a variance is needed to place the sign 10’ from the right of way.

Arnold Serlin was present and duly sworn.

Arnold Serlin: I am here tonight with a request of a variance. The setback requirement for site lines is 25 feet and we are asking for it to be moved forward to 10 feet from the right of way line for better visibility for the entrance to the subdivision. This is exactly the same, and I don’t know if you have had the opportunity to visit Bristol Corners, but the north entrance has exactly the same sign and it also was granted a variance about 2 years ago by this Board to be 10 feet from the right of way line.

Arnold Serlin: I guess it is fairly self explanatory, I would be happy to answer any questions. I have a couple of pictures if you haven’t had the opportunity to visit the site that may help you to understand that I don’t believe that the site lines are being impacted at all by moving the sign which is only 30 inches above grade to 10 feet from the right of way.

Chairman Brennan indicated there was a total of 1 Notice sent to adjacent property owners. There was no written response received.

AUDIENCE PARTICIPATION

There was no audience participation.

DISCUSSION

Alan Amolsch: This is the result of a conflict with the sign ordinance and the clear corner requirement of the zoning ordinance. The sign ordinance only requires the subdivision sign to be 10 feet back from the right of way line and the other zoning ordinance requires it to be a 25 foot clearance. We have informed the City Attorney about this and they are going to work to change one or the other, so that this won’t happen again.

Member Reinke: I don’t see this to be a problem, the other sign is attractive and it is not something that is obstructing traffic or intrusive in nature.

Moved by Member Reinke,

Seconded by Member Harrington,

THAT IN CASE NO. 99-017 THE PETITIONER’S VARIANCE REQUEST BE GRANTED DUE TO THE SUBDIVISION IDENTIFICATION.

Roll Call: Yeas (6) Nays (0) Motion Carried

Lee Mamola, representing Dixon Hall (Dibo Building) is requesting a parking setback variance and landscape variances to allow for the construction of a new office/industrial building to be located north of Grand River and west along Meadowbrook Road.

Lee Mamola was present and duly sworn.

Lee Mamola: As I understand the variances that we are seeking, we are seeking 4 variances and I guess that I would like to make sure that we are all in an understanding with that. There are 2 requiring landscape variances and there are 2 requiring greenbelt setback variances or paving variances.

Lee Mamola: I would like to start with a little background on the history of the development of this project. This project property is located north of Grand River and on the west side of Meadowbrook. This is Meadowbrook here and this is Grand River down here off of the map. The 2 buildings nearest to me represent existing structures. About 12 years ago this property came before the Planning Commission as a 3 phased industrial development and 10 or 12 years ago 2 buildings were built and the third was never built; it was left vacant. Yet, the infrastructure for all 3 buildings was constructed per the approved site plan 12 years ago. The property also has a series of easements that are basically access and utility easements which allow each of the 3 buildings (if the third building gets built) to essentially share all of the driveways and approaches and whatnot. It acts as one site, even though they are 3 separate parcels. There are easements that go off of this site to the west to incorporate some traffic for the Soccer Zone which is there today, there is some easements toward Grand River to an undeveloped parcel; but the easements are recorded. Part of what happened when this project got built the way that it did about 12 years ago and the way that I understand this; is that during the review process at the Planning Board the Planning Commissioners were initially concerned with 3 separate curb cuts for each of these 3 parcels and a very valid concern. Yet, with Bishop Creek running almost the entire length along Meadowbrook it was not feasible to have a service drive between the buildings and Meadowbrook. The solution which evolved was a curb cut to the south and a curb cut to the north, which is now our north property line. It was further suggested that this driveway to the north which frankly straddles our property line (half on our property and half on the other property to the north which is undeveloped) be done so that when the property to the north gets built and developed its access would be by way of our drive and I believe that there are other access points on and off so that the sensitive wetland and woodland area that fronts the property to the north would really not have a curb cut. That was the thinking about 10 or 12 years ago. As I say the pavement and the setbacks and all were in accordance with the ordinances at that time. Now for whatever reason the third building was not built back then, our client has come along recently and has purchased the property and is looking to develop a building that is pretty much substantially what was intended before. We still have the same front yard setbacks, we are still holding basically the same backyard setbacks and we abide by the new building setback lines but we cannot abide by because of existing easements as there is a 4 foot pavement easement extending from the middle building onto our property. You are supposed to have 10 feet of grass, but there is an existing pavement which was there from an existing previously approved site plan. This driveway which is there today as well. It is our intent to repair that driveway, as it is in a state of disrepair and as part of the construction this driveway would be resurfaced and reconditioned.

Lee Mamola: There are 2 other ordinance requirements dealing with landscaping. In Ms. Lemke’s review letter of our preliminary landscape design it sounds like there was quite a bit more that was required. It was a preliminary landscape design and we are able to meet all of the requirements with the exception of 2. The 2 have to do with the fact that we would be required to build a 36 inch berm between the front of the building and Meadowbrook and we are seeking the elimination of a 4 foot wide green area between the back of our building and the parking area.

Lee Mamola: Now the reason that we feel there is valid reasoning for the waiver of the 36 inch berm in the front is because it isn’t going to hide anything. There is an existing ditch for Bishop Creek which falls about 10 feet to the deepest point relative to our existing grade at the front yard setback line. That grade is 4 feet below floor level. So if we build a 36 inch berm we are not even hiding the floor. The berm I think was intended for other situations other than this.

Lee Mamola: The other question with respect to the 4 foot green area here, we have an existing 12 foot greenbelt in the rear and it is 12 feet because of the topography slope; the difference in grade from the Soccer Zone site is higher than our grade and it slopes down at a certain rate, either 3 to 1 or 4 to 1 and that results in the 12 foot green area. We work the parking backwards toward the building and we do have an excessive width of a drive. We have 27 feet for a service drive between the 2 parking bays and we feel that we need that 27 feet because this is primarily a truck access area and the more turning area that you can get for trucks to maneuver and do their turning the safer the site will be. We believe that it is relatively a common sense kind of variance.

Lee Mamola: The other more pragmatic problem happens if this were to become a lawn area, it does become a very difficult thing to maintain. We believe that the backyard of this building will be well kept and it would go a long way to keeping the appearance of this rear building and hopefully spreading the appearance along to the other 2 buildings to the rear.

Lee Mamola: One last word about the developers of this project. They are Dixon Hall, and the family of Gordon B. Hall and Sons who developed a project which is now completed along Grand River and it is known as the tributary, Dixie Cut Stone is in there and there are several other high tech businesses and I mention that only to point to the level of quality that they intend to bring to the area. I believe that the building design and the building facades are a significant improvement to the other 2 buildings which are there today. There is a fair amount of face brick on this building and we did receive the approval of the facades from the Planning Commission when we were before them about a month ago.

Lee Mamola: That is our case. We are available for any questions.

Chairman Brennan indicated there was a total of 9 Notices sent to adjacent property owners. There was no written response received.

AUDIENCE PARTICIPATION

There was no audience participation.

DISCUSSION

Don Saven had no comment.

Kelly Schuler had no comment.

Member Reinke: The façade you say is within the ordinance?

Lee Mamola: Well that depends upon when you ask the question. We did get a façade waiver from the Planning Commission when we were last before them. There was a change in the ordinance and we were caught in that change but we did get a waiver.

Member Reinke: The reason that I brought that up was the letter from JCK.

Member Harrington: Is there an irrigation that is being requested?

Lee Mamola: The water supply to the landscape? No, there is no variance. We intend to irrigate the landscape.

Member Harrington: Quote, an irrigation system is required for all landscaped areas, the proposed plan does not indicate compliance, a variance is needed. Are you asking for that tonight?

Lee Mamola: We intend to irrigate the landscape, so we are not seeking that.

Chairman Brennan: So of the 4 we are eliminating the item 2509.4 as you are complying with that?

Lee Mamola: I am sorry but I don’t have that list. There were items regarding the screening of the transformer and we are going to do that. There are other items requiring additional trees, we are going to do that. There was a requirement to provide additional low growth planting areas in the front yard and we are going to do that. There was a requirement in the south yard not to have stone and to have a lawn or landscaped area and we intend to do that.

Chairman Brennan: I am looking at the summary that was submitted by the Building Department dated March 26^th which lists 4 variance requests. I guess that I would need to know just what you are seeking variances on.

Lee Mamola: If I could see the list, perhaps I could help you out.

Lee Mamola: The 2509.4 irrigation, we are not seeking. The others regarding the side yard setback to the north we are seeking and the side yard setback to the south is a greenbelt setback and we are seeking that; 2909 we are seeking and the last one 9.7 we are seeking as well.

Don Saven: Just as a point of interest, the variance for the 8 foot bike path must go to City Council as well as the easement for the driveway.

Lee Mamola: That would be through the Design and Construction Standards, the width of the existing drive and the 8 foot bike path.

Don Saven: Those are not our concerns, but I know that they are part of your packet and you would probably be questioned on them.

Member Reinke: Section 2509.9, the 4 foot adjacent to the building towards the west and south side I really don’t have a problem with; but the side yard setback and the parking setback I do. This leads me to believe that this building is overbuilt for the property. I don’t see why, the property was purchased knowing what the zoning ordinances are; then we come in and try to build something that is overbuilt for the area.

Lee Mamola: If we built a 500 square foot building we would still have this requirement to come before you for a variance because that driveway is there today. The size of the building has no determination with respect to that variance.

Chairman Brennan: The width of the building would have no affect?

Lee Mamola: No, that drive is there today. Half of it is on our property, about 12 feet and by ordinance that should be greenbelt. But it is a drive.

Chairman Brennan: Can we see the plot plan again?

Lee Mamola: There is about 12 feet of this existing drive which is on our property and by ordinance that needs to be 10 feet of green area. The reason that we are here is because that is an existing drive and it is part of a recorded easement with other properties and it was constructed per a previously approved site plan. This drive also goes off site to the north and it is a part of a legally filed deed easement that allows other parties from other properties to come onto this drive. So regardless of what size this building is, this drive will still be here.

Member Reinke: That is not the problem that I have. The problem that I do have is that if you met the ordinance how much would you have to reduce the width of the building?

Lee Mamola: We wouldn’t reduce the width of the building at all…..

Member Reinke: The thing is that you say you are having a side yard deficiency.

Lee Mamola: Let me back up. If we have a vacant piece of property which has not been developed at all and we laid property lines around the perimeter we would have on the perimeter of the property a 10 foot landscape green area and if that were the case and this drive was not here today, we would have to access somewhere else to the south. There is no way to come 10 feet off of this property line and begin a greenbelt because the driveway itself is 12 feet and it was there for a previously approved site plan and is a recorded easement. There is no way we can within that recorded easement and driveway make it green and landscaped.

Vice-Chairman Bauer: The only way would be to tear it out.

Member Reinke: You are saying that you have to have 10 foot of green space in addition to the driveway that is there, is that correct?

Lee Mamola: That is not what the ordinance requires. The ordinance requires 10 foot from the property line. We meet all of the other interior landscaping requirements.

Chairman Brennan: So the green space that you would need to fill in to meet the ordinance, is currently the driveway?

Lee Mamola: Yes, sir.

Member Harrington inquired of Don Saven: Wouldn’t they be grandfathered?

Don Saven: They would need a variance. This is a new site plan.

Member Harrington: Yes, but the driveway is there.

Don Saven: Understood, but this is a new site plan, and it follows the provision of the ordinance; and this is a practical difficulty that is associated with this site.

Member Antosiak: The driveway that is there currently, was installed pursuant to an old site plan on a prior development?

Lee Mamola: Yes, sir.

Member Antosiak: In order for you to meet the parking lot setback the property owner would have to acquire the easements that exists if they even could be acquired.

Lee Mamola: Correct, not only that but we would have to go 10 feet beyond the boundary of the easement to move this property line. That is correct.

Chairman Brennan: Would you like to reiterate now that we have clarification on that Section 2400, the 2509.9 which is back yard green space; how about 2509.7 the berm on the east side of the building in the ditch area?

Lee Mamola: Let me back up to the 4 foot green area. There is an existing 56 foot wide easement of utilities and access as measured from the property line towards our building. From that 56 foot we can fit in this parking. However, parking is in towards the back of the building. However, due to the higher topography that exists at Soccer Zone it actually starts to slope farther to the west but it comes and meets our pavement. There is a pitch there that results in a 10 foot setback from the property line to the existing pavement line, which we intend to maintain. We have a 27 foot wide traffic aisle and I believe that 24 foot is the requirement for a traffic aisle, and the question becomes where is this few feet better served, between the parking and the building which frankly we believe would become a maintenance issue or do we give that 3 feet to the truckers to come off of the drive and maneuver and do what they have to do. This is after all an industrial area and primarily truck traffic or service traffic in the back of this building.

Lee Mamola: As far as the berm in the front yard, the finish floor and let’s just call it at zero level; if you were to extend that floor out over Meadowbrook, I believe that we would be 4 or 5 feet above Meadowbrook. The building as it meets grade is 4 feet below finished floor and it slopes down towards Bishop Creek. Given the setback requirements and to stay out of Bishop Creek and what is defined by the City as a wetland area or a buffered area to be concerned about we have some difficulties in creating a 30 inch high berm. We question the reasoning in this case for a 30 inch high berm to only hide the grade line at the building; it really serves, in the case, no purpose.

Member Harrington: Of course, if we were to look favorably on your other variances you would consider a 4 or 5 foot berm which would effectuate the purposes of the ordinance, right?

Chairman Brennan: I think that we have some clearer definition of what the variance requests are that are in front of us, are there any other questions?

Chairman Brennan: I suggest that we have 3 variance requests and we will refer to them as Section 2400, 2509.9 and 2509.7; let’s take them one at a time.

Member Reinke: I think that they all tie into together, if we are going to do one then we need to do them all.

Moved by Member Reinke,

Seconded by Vice-Chairman Bauer,

THAT IN CASE NO.99-018 THAT THE VARIANCE REQUESTS BE GRANTED DUE TO LOT ELEVATION AND EXISTING CONDITIONS TO WORK WITH.

Roll Call: Yeas (6) Nays (0) Motion Carried

Gittleman Construction, representing Karlovich/Verplanck is proposing to construct a first and second floor addition to the existing home at 1245 East Lake Rd. The required side yard setbacks are deficient and are in need of variances.

Scott Gittleman was present and duly sworn.

Scott Gittleman: We are looking to add a two story addition to the rear of the residence. Basically we are going straight back from the existing building lines which are nonconforming to the existing ordinance. We are not looking to increase that zoning any more than it is today. The space behind the house has plenty of parking. The addition is about 10 feet deep, with the same height and roof line as the existing structure. Currently there is a small shed in the back that will be removed and we will bring the new addition out to the existing building lines.

Chairman Brennan indicated there was a total of 23 Notices sent to adjacent property owners. There was no written response received.

AUDIENCE PARTICIPATION

Sarah Gray: LARA has no objections to their improvement.

DISCUSSION

Don Saven had no comment.

Kelly Schuler had no comment.

Member Reinke: This is a problem in that area with the width of the lots. The gentleman is proposing an improvement to the property and he is no going past the existing structures side yard setbacks as they are and I think that he has done a good job putting something together with what he had to work with.

Moved by Member Reinke,.

Seconded by Member Harrington,

THAT IN CASE NO. 99-019 THAT THE PETITIONER’S VARIANCE REQUEST BE GRANTED DUE TO LOT SIZE AND CONFIGURATION, I WOULD ALSO DRAW ATTENTION TO THE NOTE REGARDING THE ASPHALT DRIVE.

Roll Call: Yeas (6) Nays (0) Motion Carried

Walton Signage, representing HQ, is requesting to change the sign that was granted on September 24, 1986 in Case No. 1370G, for Builder Square at 43610 West Oaks Drive. The variance as stated: "allowing a 188 square foot storefront sign as shown on their blueprint". The sign that is being requested is 142 square feet and will be the HQ logo sign, Home Improvement Warehouse.

Tom Hodges was present and duly sworn.

Tom Hodges: Basically we are just asking to replace the existing sign on the front of the building to the new HQ sign.

Chairman Brennan indicated there was a total of 7 Notices sent to adjacent property owners. There was no written response received.

AUDIENCE PARTICIPATION

There was no audience participation.

DISCUSSION

Alan Amolsch: Normally when the Board has approved a variance for dimensional reasons there is not further need for a variance unless the Board has limited that petitioner or there is some other mitigating circumstances. In this case there was because the Board language included the language "allowing 188 square foot store front sign as shown on their blueprint". I called the City Attorney and he felt that language meant that the petitioner should come back to see the Board for their approval. They are asking for less square footage than what was originally granted.

Member Reinke: It is a nice clean looking sign. This is a good reason with the way that the previous variance was granted, that way if we do get into change we know what is going on and what we are dealing with. We are very conscientious to what is there and it is to your benefit and also the City’s benefit.

Chairman Brennan: I was very pleased to see that there was an awful lot of renovation going on; as that store really needed it. Glad to have you.

Moved by Member Antosiak,

Seconded by Member Harrington,

THAT IN CASE NO. 99-020 THE VARIANCE REQUEST BE GRANTED FOR STORE IDENTIFICATION AND DISTANCE FROM NOVI ROAD, THIS VARIANCE WILL BE LIMITED TO THIS PETITIONER.

Roll call: Yeas (6) Nays (0) Motion Carried

Caren Nederlander is requesting a 30’ front yard setback variance and a 7’ side yard setback variance to allow for the construction of a covered walk and a carport for property located at 1927 West Lake Drive.

William Brookhoff was present and duly sworn.

William Brookhoff I am appearing to assist Ms. Nederlander. In the tradition of the evening in keeping things brief; Ms. Nederlander owns a home on Walled Lake and she would like to build a carport. The problem that she experiences is that the lot is only 31’ wide. The garage building is 2’ from the border on one side. She would like to build a carport next to it and a covered walkway to her home. I don’t believe that there is any objection and we ask that a variance be granted, particularly in view of the fact that the size of the lot makes it impossible to put anything anyplace else.

Chairman Brennan indicated there was a total of 34 Notices sent to adjacent property owners. There was a total of 3 written responses received. One voicing objection and two voicing concern. Copies in file.

AUDIENCE PARTICIPATION

There was no audience participation.

DISCUSSION

Don Saven had no comment.

Kelly Schuler had no comment.

William Brookhoff : Would photographs of the scene be of any assistance to the Board?

Chairman Brennan: Anything you can give us to help your case.

(Photo’s passed to the Board)

William Brookhoff: The bottom photograph shows the parking area and the garage. The garage is on the street. It has been there since the home has been built. It is not 6 inches from the line, it is 2 feet from the line. As opposed to creating any further difficulty what this would do is to allow the parking of a vehicle where you could actually see something. The problem is parking a vehicle on the street. I think that the concerns that are voiced really are concerns about the building that is there already and not with respect to the suggested change and the request for variance.

Member Reinke: First of all my comment is that the garage is to close to the street. Second the 2 could be incorporated together and moved back a further distance from the street to accommodate what the petitioner is looking to do. I think that this is grossly overbuilt, it is too close to the street and there is no way that I could support the petitioner’s request.

Member Harrington: Could you help me out a little bit. It appears that there is a significant open area between the existing home and the current structure.

William Brookhoff: You are talking about the area to the south of the access building between the residence and the home?

Member Harrington: Correct, is there a well on site or are there things there which would preclude, for example, doing a demo on the access building and perhaps centering a garage a little closer to the house? Is there any reason that it couldn’t be built?

William Brookhoff: That is a garden and it is one of the charms of the home.

Caren Nederlander: There is a well there also.

Member Reinke: Where is the well located?

Caren Nederlander: Do you see where the Mary statue is, that is where the well is.

William Brookhoff: In the top photograph on the right hand side in the shaded area.

Caren Nederlander: We are not talking about building a garage. The garage is already there. It is just a covered area, a carport. Just a cover over the other parking area next to the garage. There already is a parking area next to the garage; do you see the double gates?

William Brookhoff: It is a matter of putting a cover over that parking area.

Caren Nederlander: It is already a cemented parking area.

Chairman Brennan: That is concrete? It appears that it is dirt.

Caren Nederlander: I had to put gravel over it because the road is higher than the land and mud was washing onto it. So I raised it by putting gravel.

Chairman Brennan: My comments are along the lines of the traffic and safety. I think that this proposal adds additional parking capacity to an area that is very restricted and very tight. I think that the comments by the adjoining neighbors are valid concerns.

Caren Nederlander: It already is a parking area. All I am asking to do is to cover it so that I don’t get wet when I walk out of the car to go into the house. I am not asking to build anything different than what is already there, other than to cover it. It is only a cover that I am putting on it.

Member Reinke: When you are covering it, you are increasing the building….

Caren Nederlander: I am only covering the top, the sides are open.

Member Reinke: When you cover that, you are increasing the building capacity of the lot. The thing is that you have a very small and sensitive lot. Your garage is to close to the street as it exists today. To put a cover over that increases the capacity of a building that is to close to the street and there is no way that I can support the continuation and expansion of what is there. You have the room if you wanted to of leveling the garage and move it back, centering it on the lot and be in a much better situation than you have existing currently today.

Chairman Brennan: Just to verify the location of this well, it appears that just looking at the photographs that the well is much closer to the existing residence than it is anywhere near the existing garage. Is that a safe assumption there?

Caren Nederlander: Yes.

Chairman Brennan: So the well itself, if I could scale that just by eyeballing it, maybe it is 10 feet from the back of the house?

William Brookhoff: Maybe 12 to 15 feet.

Chairman Brennan: So the point that someone made that there is room to build a garage more centered and off the road, rather than expanding what is already a dangerous and tightly constricted facility.

Caren Nederlander: Actually, I am really not talking about changing anything other than what is already there other than covering the space that I already use to get off of the road. I already use this all of the time to back out. I just wanted to put a cover over it so that I didn’t get wet.

Chairman Brennan: Yes, that is why you are in front of us, "no such structure may be enlarged or altered in a way which increases its nonconformity", that is why you are in front of us for a variance.

Caren Nederlander: I wasn’t talking about really changing the parking.

Chairman Brennan: Enlarged or altered.

Moved by Member Reinke,

Seconded by Vice-Chairman Bauer,

THAT IN CASE NO. 99-021 THAT THE PETITIONER’S VARIANCE REQUEST BE DENIED DUE TO INSUFFICIENT HARDSHIP.

Roll Call: Yeas (6) Nays (0) Motion Carried

John Gauruder is requesting a 22 foot rear yard setback variance and a 5 foot side yard setback variance to allow for the construction of an enclosed pool in a RA Zoning District for property located at 25334 Birchwood Ct.

No one was present for the case. Case to be called at the end of the Meeting.

Mark Guidobono is requesting to develop a 56 lot, single family site condominium development (Bellagio) located west of Beck Road and south of Nine Mile Road and is in need of a variance from the open space preservation requirement. ( See plan, Preservation Option A).

Mark Guidobono was present and duly sworn.

Mark Guidobono: I am with Cambridge Homes. I currently live at 1014 Elmsmere with my wife and family. We are here today to ask approval of a non-use variance for a 55 site community called Bellagio. We come to you with a positive recommendation from the Planning Commission. The site is 72 acres. The location is on Beck Road between Nine and Eight Mile Roads. The site is zoned for RA or 1 acre site. In order to keep control of the site we will be acting as the builder and the developer. Our intention is to preserve as much of the natural features as possible. Our goal is to create the best plan possible for the City as well as creating a usable central park for the residents that would be living within this community.

Mark Guidobono: I would like to introduce Joe Galvin who will explain to you our practical difficulties and give you reasons why you should grant this variance. Thank you.

Joe Galvin: I am here tonight on behalf of Mr. Guidobono. The practical difficulties which justify this non-use variance are that we are preserving 31% of the total area of this site in regulated woodlands and yet the computation under the ordinance because of the shape, the size and the location of the woodlands on the parcel and of the parcel itself allow us to count in the computation of the preservation credit only 10% of the property. How does that come about? The reason is rooted in the fact that the lot sizes on this parcel require and we have put this up on a board for you, require a total preservation credit area of 13.82 acres. In fact, you have regulated woodlands; woodlands regulated under the City’s ordinance of 22 acres. The problem comes about because the size of the parcel is such and the woodlands are located on the parcel in the place that they are. In order for us to protect that central park area which is the amenity that the Planning Commission found most persuasive in their approval of this plan; in order for us to preserve that and create the subdivision which you see we are only able to count 7.709 acres within the credit calculation. Change anyone of the locational criteria and we would be able to build out this plan preserving precisely the same amount of wetlands. I would like you to focus on the quantity of the woodlands that we preserve. I mis-spoke they are woodland. If this parcel were cut in half and Beck Road ran down the middle, that precise subdivision would be buildable under the preservation credit, because merely by reducing the denominator the percentage would go up and would allow the calculation.

Joe Galvin: What we are really dealing here with is a dimensional problem that the ordinance creates which destroys the ability of the developer to protect the maximum amount of open space. Put another way, by gerrymandering the lots you protect less open space and meet the numerical requirements under the ordinance. What we are asking the Board to do is to recognize the intention that is stated in the ordinance to do that which it is that the ordinance seeks to do which is to protect woodland and to do so by permitting us to count cross hatched areas which will bring it up to the required percentage. Remember the reality is this, you install the infrastructure, you build the houses on the lots as they are shown and what you are protecting is far in excess of the preservation credit. But, because we are dealing with larger lots and are required to do so, we are not allowed to count areas within the perimeter of the condominium units. It is that simple. What we are asking you to do is to grant the dimensional variance to allow us to count these cross hatched areas. They will be restricted to the same degree as this area which we are currently allowed to count. They will be indistinguishable physically from the areas that are in the common wooded area. They will be directly accessible to all of the persons living in the subdivision without crossing lot lines. Through the use of the restrictions they will be totally indistinguishable physically from those that can be counted.

Joe Galvin: The point is simple. We are able physically to create Bellagio, a beautiful place, a place with homes that will be a credit to the community, the sales price for these homes will serve to further the purposes of the preservation option. It is only because of the vagaries of the particular shape, location and layout of this parcel that we are unable to do that. As I understand it, this is the first RA parcel which has come before the City seeking to use this credit. What we ask you to do is to grant us a dimensional variance that will allow us to preserve 31% of this total site; 75% of the regulated woodlands on the site. We submit to you that this is the purpose of the preservation option in a very real and realistic sense. Not to grant the variance is to compel development of the parcel with a total destruction of this area here, because that is what is necessary in order to properly develop.

Joe Galvin: This is the plan which in the minutes of the Planning Commission reflected that the Planning Commissioners said was their preferred plan. They have recommended it’s approval to the City Council subject to the grant of this variance. We most respectfully ask that the Zoning Board of Appeals grant the non-dimensional variance to allow it. Thank you.

Chairman Brennan indicated there was a total of 44 Notices sent to adjacent property owners. There was 2 written responses received, both voicing objection. Copies in file.

AUDIENCE PARTICIPATION

There was no audience participation.

DISCUSSION

Don Saven had no comment.

Kelly Schuler had no comment.

Chairman Brennan: It wasn’t addressed in your presentation, but there were significant meetings with adjoining residents by the developer; can you give you the Board some background on that effort and the end affect.

Joe Galvin: As far as I know those were favorable.

Mark Guidobono: We contacted owners by knocking on their doors and inviting them to meetings in our office on Nine Mile and on Beck Road and we had one neighbor take us up on that request; who came to office on a certain Saturday. We also suggested that if they couldn’t make that meeting that we would have a separate meeting for that individual if the time frame was inadequate.

Chairman Brennan: Did you also have letters from your office to local land owners?

Mark Guidobono: No Sir, we did not send out letters.

Chairman Brennan: I am sorry, I was misinformed. I didn’t want to lead you down the wrong path; but I thought that there was a series of meetings with local residents.

Mark Guidobono: We appeared to have very little interest. That was our impression. Our general mode of operation would be to meet with the adjoining neighbors if they do have concerns and it was our impression that no one did have a concern because of lack of response.

Member Harrington inquired of Planning: Is it accurate that Planning enthusiastically supports this variance request in it’s form tonight?

Kelly Schuler: No, not enthusiastically. I believe that the Planning Consultants in a look to the letter of the law of the ordinance as far as density credit and as far as what is included the environmental areas and the ordinance does state that it cannot be areas which are protected under the woodland ordinance or which have platted lines going through them and that is what they are trying to include. So, I would not say that they enthusiastically supported this variance. However, it was the applicant’s choice to come forward and seek the variance.

Member Harrington: Mr. Galvin, as you know we do not have the power to re-write the ordinance and that gives rise to a question in my mind; is your variance request unique to this property or are there going to be other properties in Novi similarly situated with similar difficulties with a numerator/denominator problem which I am still not sure that I understand yet; but that appears to be the crux of the issue, the technical formulation of the ordinance; is this a city wide problem or is the problem only related to this property albeit that you may be the first but if you are the first of many then I am not sure that we can afford you much relief.

Joe Galvin: I understand the question and the answer is that we believe that because of the location of the woodlands on this particular property and the way that the lot is configured that while it is a numerator/denominator problem as you have described it that it will be unique to this parcel and because of the amount of woodlands on this parcel you are not going to be in a situation where it arises over and over. We have a lot of woodlands and we are protecting a lot of woodlands. So I think not.

Joe Galvin: Mr. Harrington, with your courtesy I would like to give a different point of view to your prior question because I understood it differently and I think that it is important that the Board understand it. The Planning Staff and outside consultants did not support much less enthusiastically support this. What I had said and what my feeling at the meeting of the Planning Commission was, that the Planning Commissioners who voted in favor of the plan did and I will use your characterization "enthusiastically support" this plan; but I don’t want to mislead. The question that I understood you to ask related to the Planning Commission and the question that was answered precisely and properly from the point of view of the person who answered it and spoke to the staff and the consultants and there was that split. What it comes down to is that this particular plan we think is unique. This particular development is unique. This plan in preserving the central park area is enthusiastically supported by the Planning Commissioners who did make the recommendation on it and we laid it all out for them the same way that we are laying it out for you tonight; this is the plan that best serves the health, safety and welfare of the citizenry of this City and the developers intention and the intention of your ordinance as we understand it. It was just fascinating because what you had was and she heard the question properly from her point of view and I say that the Planning Commission enthusiastically supports.

Member Harrington: Those who enthusiastically voted in your favor were enthusiastic about it.

Joe Galvin: That is right and they were.

Kelly Schuler: I would just like to point out that the motions that were carried were 5 to 4.

Member Reinke: I don’t call that an enthusiastic recommendation out of the Planning Commission.

Joe Galvin: All other things aside, this is the preferable way to go and we do meet the requirements for a dimensional variance.

Member Reinke: If you had to develop this piece of property without this variance what could you do?

Joe Galvin: It is in the Planning Commission minutes, there is another plan but the question comes down to whether this dimensional variance is supportable by the criteria for a variance. What it comes down to and that is the only reason in my view that this is at all a tough decision is that I am not going to tell you that we cannot build the other one using the arithmetic but the arithmetic has a basic flawed premise and that is what you count. Frankly, my reasons are that we meet both the intent of the ordinance and the practical difficulties so that the variance can be granted. But, I am not going to tell you because it wouldn’t be true, that we couldn’t build the other way.

Chairman Brennan: The fact that these are condominiums would lead one to believe that this area that you want to count as woodlands because it is condominiums there would be no possibility for the homeowners to level that or clear that and it will always remain the same.

Joe Galvin: That is right. That is part of the point. I could make a cute argument which I won’t make on the letter of the ordinance because I am going to the heart of the matter. The ordinance talks about not counting the area in a platted lot but I am not telling you that. What I am telling you is that we can as you suggest through the condominium document restrict this area from building to the point where it won’t be able to be cleared by an individual lot owner and will be accessible to the unit owners. So, yes and I think that this is a very important distinction with our ability and our power to do that.

Member Reinke: I guess that I still have a problem with the rationale for the hardship for this because the thing is if you didn’t have this, how many lots could you put in there?

Joe Galvin: We would end up with the same number, but we wouldn’t have the park. We would take out the park and we would destroy frankly, in my view, the totality of what we are able to do with this plan is aesthetically much more pleasing than the totality of what we are able to do the other way. Yet, we have taken and if you look at the minutes it says in the minutes that they approved and Kelly will tell you that they approved Plan B as well.

Member Reinke: Do you have a rendering of Plan B?

Joe Galvin: Yes, we will show you Plan B.

Member Reinke: Yes, that will give me a better idea. I am looking at one thing here and I don’t see the other option. What is the trade off?

Joe Galvin: Mark, would you bring it up and show that you are putting lots into the area that we are preserving as the central park area.

Mark Guidobono: It is very similar to Plan A except that we lose the central park. The actual preservation of the woodland areas is very similar. Very, very similar.

Chairman Brennan: You can build in that central depression?

Joe Galvin: Yes.

Mark Guidobono: Yes, you could build in there but if we do it loses the effect of this plan which I really think is the Masseratti of the 2 plans. This is still a good plan. It is a nice plan. It will still be a beautiful subdivision. This I think would be unique for the City. I really think that it would be something different and special and the thing that I like about this is that most open space areas the people that back up to it are the ones that enjoy the central park area; the nice thing about this plan is that everybody in this community can enjoy it because there are no lots backing up to it, there is a road that circles the whole area. It is a park for the kids to play, with bike paths or walking paths through there, gardens, a gazebo and things of that nature. The nice thing about it is that everyone here will be able to enjoy that central park. I believe in fighting for the best plan that I can and that is why I am going through this extra hassle. The lot count is the same, but I just feel that is the Masseratti of the two. I think that is an award winner right there.

Member Reinke: I get a much better understanding now that I see the second rendering with Plan B. My first thought is that we are looking at putting extra lots in on this configuration here and now I see with what you are doing and what the open space is it makes me much more supportive of your request than to just present that by itself because we didn’t have the affordability of having the information of both renderings before us prior this as the Planning Commission had.

Joe Galvin: I appreciate that, but I was aware of the requirement of showing the practical difficulties. We show that first as I read Mr. Harrington’s outline.

Joe Galvin: Now quite seriously, and many of you know me and we do take this very seriously. These are our real reasons and we respectfully ask that you grant this request.

Member Sanghvi: What is the size of the central park?

Mark Guidobono: That is 4 acres. It is a 4 acre central park that one acre of it will be wooded and 3 acres will be grassy area. You will have some tree planted, it will be very nice. There is an area in the back that we will be preserving and there will be grass with a gazebo. The traffic coming in will look at that gazebo; there will be flower gardens. It will be very nice

Member Reinke: I guess that in looking at the 2 outlines that are there, I am definitely in favor of the proposal that you are requesting over the other one because of the open area that the people would have. Really a less congested central area would be the open space part.

Kelly Schuler: I just wanted to point out that what you get credit for is areas that can be used by all of the residents without crossing platted lines; so the areas that they are including in the back of these lots need to be areas that all residents in the entire development can access and can utilize and that is where you get the credit for preservation.

Joe Galvin: And we can do that in the condo docs. We are able to give the right of access.

Chairman Brennan: That is really the thing that caught my attention with this. If this had been residential property with homes, I don’t know how you would protect the woodlands that they are asking to be counted in; but under a condominium development it is a different story.

Member Antosiak: Just a comment. As much as I may feel that the petitioner’s request is a better design than the initial request I don’t believe that the petitioner has demonstrated any particular hardship as to this property itself. I hesitate to put the ZBA in a position of deciding which design is better of similarly sized developments. Clearly the requested design will make that a more marketable development, there is no question in my mind. I don’t believe that the petitioner has demonstrated any particular hardship as to the property and I can’t support the variance. Also, I am a little concerned about the first RA proposal utilizing a preservation option coming in and requesting a variance and the affect of our approving that variance.

Chairman Brennan inquired of Member Antosiak: Just to continue on that thought, if they have that other option which removes sufficiently more woodlands and open space, if they have that option which is approved by Planning as an option; why wouldn’t you encourage or prefer this as an alternative?

Member Antosiak: I may prefer it, but I don’t believe that he has demonstrated a hardship which is a requirement for the variance.

Member Harrington: There may be a philosophical difference here; I think that they have demonstrated practical difficulty. The practical difficulty is preserving the maximum amount of woodland which is clearly the intent of the ordinance. I don’t have a problem with them establishing the threshold case that they need to establish for our approval; the concern I have is whether or not this is in fact an ordinance problem and a City wide problem because if it is we shouldn’t be touching it. I am satisfied based upon what I have seen and heard that this appears to be a unique situation which would permit me to support it. It is not an easy one. I think that there is much to be said for what Mr. Antosiak has suggested, but listening to the arguments and listening to the absence of any opposition from anyone; we are dealing with a particular parcel, we are dealing with a particular practical difficulty in reaching the ends and the goals of the ordinance. I can support this variance.

Member Reinke: Until we have something that is reoccurring we don’t know if we have an ordinance problem or not.

Member Harrington: That is right.

Member Sanghvi: Is there anyway of knowing if there are similar circumstances likely to arise in the future? Are we setting a precedent here?

Chairman Brennan: Everything west of Beck Road is mostly RA, so we will probably see plans like this or similar to this. If you travel the corridor from Eight Mile to Eleven Mile there are woodlands all over there. If we have the option of preserving them versus clear lot development, and if those are the only 2 options before us tonight; unless we would have another option of tabling for a legitimate reason or continuing.

Chairman Brennan inquired of Member Antosiak: Is there any reason that you can give for a continuation to pursue other discussion with other departments or legal counsel or?

Member Antosiak: No, I am willing to deal with the argument that has been presented to us.

Member Reinke: The project is going in, there is no question about it. I compliment the developer on this for his approach in the way that he has tried to make this as appealing to everyone with what he has done, rather than going in there and doing what he can do and then not have as good of a development as what we are looking at in the options. I can support the petitioner’s request.

Moved by Member Harrington,

Seconded by Member Reinke,

THAT IN CASE NO. 99-023 TO APPROVE THE VARIANCE AS PRESENTED PRIMARILY BECAUSE OF THE PRACTICAL DIFFICULTY ASSOCIATED WITH PRESERVING THE WOODLANDS PER THE RENDERINGS DEMONSTRATED TO US THIS EVENING AND THE TESTIMONY.

Roll Call: Yeas (5) Nays (1) Antosiak Motion Carried

Lee Mamola, representing the Santos Building is proposing to construct a 3115 square foot building on a 0.46 acre site zoned I-1 and is in need of an interpretation and variances from the Zoning Board of Appeals.

Lee Mamola, Larry Santos and Cliff Seiber were present and duly sworn.

Larry Santos: I am here this evening to ask the ZBA to grant variances on a parcel of land that is just south of Grand River on Taft Road. It is my intention to build a small building there to house my office and recording studio. I have 2 fine gentlemen with me tonight to present it to you. One is Lee Mamola and the other is Cliff Seiber. Before I turn it over to them, since a recording studio is kind of an oddball thing that many people don’t know about I wanted to give you a little bit background on myself and on the project.

Larry Santos: I have been in the music business all of my life, all the way back to 8 years old when I had my first radio show in upstate New York to 16 years of age when I had my first record out nationally to when I was in college and wrote a song called "Candy Girl" for the Four Seasons and it became a number one hit across the nation. I have recorded 9 albums and was involved in the creation of an award winning children’s show called "Hot Fudge", that was done here in Detroit on channel 7 and syndicated around the country in 92 markets. Back in 1983 I built a home just off of Beck Road, when Beck Road was a dirt road at that time, if you can remember back that far; and over the years I have recorded many records there, a lot of commercials and things that you have heard on radio and television with the latest being a Farmer Jack that has been running for the last 2 or 3 years in which my daughter sings and I produced and wrote the song in my studio off of Beck Road. When I decided to move that studio to another parcel, for a variety of reason with the main one being that I wanted to be close to my present home. I wanted to stay here in Novi. I started to look around and found on Taft Road this small parcel, but large enough for my needs. I didn’t need 1 acre or 1 ½ acres or 2 acres; I needed a parcel that would fit about a 3000 to 3500 square foot building. I found this parcel on Taft Road and felt that it would be perfect for my needs with the location, etc. so that I could stay in Novi because this is where I wanted to continue with my business. Announcers and record people and so forth and so on have been coming to my place over the years and I did want to stay in Novi. That is why I am here before you tonight, to see if we can’t work out some variances that will make it possible for me to build a building on there which I think will be an asset and a very soft usage in light industrial for that particular lot.

Larry Santos: All that being said I want to turn it over to Lee and Cliff and if there are any questions that you might have of me personally, certainly I am here to answer those questions for you. Thank you.

Lee Mamola: When you look at this case if might first seen quite burdensome with all of these items before you to make a decision on. I would like to start by suggesting a way or a strategy if you will, to simplify this case for your decisions. If we can break it down into 3 areas, we have a question of special land use interpretation, one of the zoning variance requests deals with questions of the façade waiver issue or façade requirements, and then the third group are a series of other ordinance issues. I will give you a little peak about what we are going to say about those other ordinance issues and there are really not as many as you might be lead to believe, we are able to cut through a lot of those as being necessary requests for ordinance.

Lee Mamola: I would like to start with the question of special land use and I assume that you have in your packet my letter of March 11^th to Dennis Watson. To give you a little bit more of a background, when the I-1 Ordinance went for a rewrite back about 10 years or so ago, the theory of the I-1 Ordinance was that it would have 3 tiers. What they would call tier 1, tier 2 and 3 use group and they theory was that the softest use would be a tier 1 use and that such a use when it abutted residential districts could go before the Planning Board or Commission without any special land use requirements. The uses listed in the tier 1 generally for the sake of presentation we will say are office uses; but they are soft uses and non-caustic uses. Tier 2 tend to be more your normal modern day industrial uses and may have a little caustic affect and you would have to go to a special land use procedure which is a more stringent level of submission and a higher standard to submit for approval to the Planning Commission and those as I say were offices, tend to be research, industrial warehousing, light manufacturing where there a certain sound issues that you have to be aware of and those could go next to residential districts with special things attached. The third uses were more caustic, they belong in an I-1 use but they could not abut residential districts and there is no question about that.

Lee Mamola: What I feel that has happened here, however, in dating back to December when Mr. Santos met with the Planning Consultant, Rod Arroyo, and I was not at that meeting but according to Mr. Santos there was no mention of this project requiring a special land use. Mr. Santos went and presented to Rod Arroyo the fact that this was going to be a recording studio and probably heard much of the same presentation that he just told you. We submitted the site plans accordingly. We get the reviews back and all of a sudden we have special land use questions because Mr. Arroyo made a certain interpretation, which he has the power to do, to place this sound recording studio in a line item that is in the ordinance as most common to. I would submit to you that the whole strategy and theory of what the City and the way that they are thinking in this review is that intending to think of offices and names of businesses rather how those types of businesses function. In our letter and I won’t go through it all in detail, but generally the characteristics of 1901 or a tier 1 use are white collar, require small spaces, businesses that are 8 to 5, 5 days a week and they are not running shifts 24 hours a day or double shifts or anything of that sort. Generally they are white collar in nature of employment and it is those types of uses that I list in my letter that are characteristic of an office use but are also characteristic of a sound recording studio, they meet all the characteristics of an office use. If you compare a sound recording studio to the characteristics of the uses that are listed in 1902 or tier 2, the 1902 uses tend to have larger volume spaces and structures and it makes sense that if they do that they should have a special level of caution and care if they abut a residential district. They generally have, depending upon, shipping and receiving functions than office use is, as you may get a 65 foot truck delivering things in an tier 2 use and you would tend to have operations which require machinery and equipment. You tend to have chemical and other supplies on site that a tier 1 use would not have and they tend to rely on a showroom for display; they tend to want to be on a main street. An office use, a sound recording use and all of the uses in tier 1 generally don’t require them to be located on a main street for visibility to promote business as some tier 2 uses do.

Lee Mamola: In my letter I go onto the fact that the tier 1 use states that a photographic facility which supports offices and the like and that this sound recording studio is more like a photographic studio then a research and experimental laboratory type of studio that Mr. Arroyo referred to in making his decision. I think, again, it just comes down to analyzing how these uses are used and the caustic affect on the property and the land use. It is on the land use and not a land title issue.

Lee Mamola: Finally, on the land use question there was a letter that goes back to 1991 and I believe that you should have that in your packet (I have additional copies that I could pass out in a moment) that Mr. Watson wrote a letter and the essence of the letter was that as long as Mr. Santos recording at his house at the time, did not violate acoustic requirements of the ordinance that kind of use and function could go along in a residential district. I asked why such a use is OK in a residential district but we are being placed as a tier 2 use – we are making a big leap there to do that. So with that we will rest our case on that; with the idea that there is other additional support and notes and comments and I think that you have in your packet of other studios in other communities and other zoning districts and since we submitted that for your packet, we have doubled that list in other communities around Michigan. They tend to be in an office type of zoning district in other communities, sound recording studios that is. I could only conclude from that, that in other communities which are seeking guidance from other professional planners that they see sound recording studios as a soft, non-caustic use that would function in an office setting. Again, the character of the structure of their spaces of a sound recording studio is more like an office studio.

Lee Mamola: Mr. Chairman should we kind of stop, or should we go with the rest of the questions? Should we just take the land use question at this point?

Chairman Brennan: I would suggest that you probably walk through these and give some comment on each one of them. Briefly.

Lee Mamola: The question of the building façade issue; we had the building designed and we submitted it and had it on it’s way to the City roughly in the middle of January.

Chairman Brennan: Can we go down the list as it is written here?

Lee Mamola: I am going to ask Cliff Seiber to help with that, please.

Cliff Seiber: Just briefly, I want to explain the project and what it is about and what we are proposing here. It is a 3300 square foot building, there are 8 parking spaces along the front as is one of the variance requests that we do provide for front yard parking. The location of this building with respect to the zoning is surrounded to the south, east and north by light industrial zoning; however, across Taft Road is the Andes Hills Condominium complex. Directly across from this building is a large wetland complex which contains, I believe, a wetland preservation easement and there is a storm water detention basin to the south of this existing building and the distance from this first residential unit to this building is 170 feet. (charts are being shown to the Board) As you can see there is a preservation of this wetland and this is part of the Leavenworth Creek and the trees that are adjacent to that wetland or that creek are proposed to be preserved which would provide for some screening from this proposed building to that unit.

Cliff Seiber: We also investigated the point of whether or not that this parcel creates a self imposed hardship. In 1968 this parcel was divided and it consists of .33 acres or about 1/3 of an acre of net area and based upon the ordinance at the time in 1968 we believe that we could actually provide for about 15% more building than what we are proposing. This building provides for 3800 square feet and we have 7 parking spaces associated with this. Back in 1968 the front yard setback was less, there were no parking setbacks to the side and rear but there was at that time no front yard parking provided. So based upon the ordinance at the time that this parcel was split or divided it was possible to achieve a 3800 square foot building with the necessary parking. Actually the parking provided here based upon the ordinance would support up to 21 employees in that building. What we are proposing with the recording studio is only 3 employees.

Cliff Seiber: We have also prepared a plan which outlines what we could do today with no variances. What would happen is that once we observed the 40 foot front yard setback, parking setbacks and loading area we were able to achieve a 451 square foot building. Now there is possibly one problem even with this plan that there is a section of the ordinance that says you must 100 foot setback distance from a residential zoning to the parking; well the 60 foot half width right of way has been dedicated to the City and the residential area being Andes Hills and it is being measured from the 60 foot right of way, measuring over we have 114 feet to the parking under the proposed site plan. However, if that measurement is taken from the centerline to the Taft Road pavement, then actually this plan even does not meet the zoning requirements because it would leave us with only 2 parking spaces even if you had zero employees you are required to have at least 5 parking spaces. So we believe that this plan demonstrates that there is a significant hardship and actually renders the property unbuildable if we were to conform to all of the City’s requirement which are currently in the zoning ordinance.

Cliff Seiber: I will very quickly go through this and I believe that this is in order. The first item is the front yard parking and as I have indicated there is front yard parking proposed here. We did investigate several alternatives and reviewed those with the City staff, the first one provided for some parking along the side lot line rather than directly in front of the building and as you can see there is some parking still required within the front yard setback but I believe that it is about 2 ½ spaces right there. In order to accommodate circulation, however, with this one it was necessarily to traverse the back of the building, cross the Leavenworth Creek which requires a substantial amount of fill and the filling of that wetland and enclosing that creek which presents a problem not only with the City but from the Department of Environmental Quality as they are not real enthusiasts of enclosing creeks. So, we believe that would be a problem and this was not recommended at all by JCK and Associates. Also this design provides a conflict with the approach to Andes Hills. The Andes Hills driveway is located approximately here and the zoning ordinance requires a 200 foot separation between driveways on opposite sides of the road. Our proposed site plan does meet that 200 foot requirement. This site plan with circulation around the building would not meet that.

Cliff Seiber: We have also prepared another plan which did provide for some side yard parking and I believe that this is actually a little bit too tight to accomplish this because of the slopes and the closeness of that parking area. There would be probably be required some enclosure or maybe relocation of the creek in order to accommodate the parking. This shows a looped driveway system and we have the main driveway across the front of the building and then an access to Taft Road at the north end of the property. Again, this provides for enclosure of the Leavenworth creek and the filling of wetlands and the necessity of securing a wetland permit from the State and the City. In addition, we still have that conflict of the driveway approach on Taft Road conflicting with the Andes Hills approach.

Cliff Seiber: With that, we are asking for a variance which would allow our parking to be provided for in the front yard.

Cliff Seiber: The second issue is an 8 foot parking setback at the side yard. We observed the 20 foot side yard setback to the building, there is a 10 foot parking setback. However, our parking is located here and this driveway along the south side of the building is a requirement of the Fire Marshall; he wanted to make sure that 50% of the building had access to the Fire Department. So, by having parking along the front and a driveway on the side for the Fire Department we meet that requirement. In fact the Fire Marshall did recommend approval of this plan, along with JCK and Associates and the JCK wetland consultant. So with this parking be located here and a driveway access or aisle to serve the parking out in front we don’t believe that we need a variance for a parking setback because this driveway is for fire access and not circulation purposes. However, that is listed as one of the variances that are requested.

Cliff Seiber: One thing that we could look at and the Fire Marshall isn’t to enthusiastic about it and that is to provide for grass pavers along that side of the building. It would give us some degree of greenbelt or landscape area and still provide support

Cliff Seiber: The third issue is what I touched on earlier, the 100 foot setback from a residential district. Again, with the dedication of the 60 foot half width right of way on Taft Road we are measuring from the Andes Hills development 114 feet to our parking. However, if you measure from the centerline of Taft Road that distance is 54 feet which then would require a 46 foot variance.

Cliff Seiber: The aisle width is the next issue, we show a 21 foot wide aisle along the front of the building to serve this parking row. Actually the ordinance was changed about a year ago, it was required to bee 22 feet and it is now 24 feet; but again we are providing for 21. The one thing that I would like to point out on that issue is that 24 feet is setup to provide for double loaded parking aisles. In other words, if you parking on both sides of this aisle you would need a 24 foot aisle to accommodate turning. In this case, this is single loaded and we don’t have parking on this side of the aisle. So as cars back out into that aisle they would overhang approximately 3 feet over that curb if the back tire hit the curb and then they would be able to pull out of that space.

Cliff Seiber: We think that actually the 21 feet accommodates that and the maneuvering can still be accomplished since this is a single loaded parking area.

Cliff Seiber: The next item was the noise analysis and if the Board determines that this falls within 1901 then there is no noise analysis that is required. If they find that it falls within 1902 then a noise analysis is required and we would be glad to provide that. We are not asking for a variance on that issue.

Cliff Seiber: The next item is the wetland setback. We received a recommendation from JCK, they are the City’s wetland consultant and they much preferred this plan since it did not impact the wetland and we are not proposing any wetland fill with this plan; so they recommended approval. We believe that based upon the ordinance a Zoning Board of Appeals waiver is not required for wetland buffer intrusion provided that the City’s wetland consultant finds that such an intrusion is not unacceptable to the City, and they have done so.

Cliff Seiber: The next item is the landscaped end island. Ordinance states that in the areas when traffic is low that this item may be waived. There is virtually going to be no traffic on that adjacent driveway or aisle and therefore we don’t believe that there is a need for a landscape island at the end of that row. However, that is listed as one of the variances.

Cliff Seiber: There is a requirement for landscape buffer of a 36 inch high berm along the road right of way. With this layout there is simply no room for that. We have our drive aisle right at the 33 foot statutory right of way for Taft Road and an 36 inch high berm we believe would take up about 22 feet of room which would really pretty much use up all that driveway aisle right there. So that is also an area where we are requesting a variance.

Cliff Seiber: The ordinance also requires a 4 foot wide landscape strip adjacent to the building. Due to the width of this parcel we are unable to accommodate that 4 foot wide greenbelt immediately adjacent to the building.

Cliff Seiber: The last item is the 5 foot sidewalk that is required along Taft Road. That is an issue that we don’t really need a variance from the Board but it is an issue that is taken up by City Council. So we are not requesting a variance from the Board on that point.

Cliff Seiber: With that, I think that lists the various items that are related to that case. Thank you.

Chairman Brennan indicated there was a total of 35 Notices sent to adjacent property owners. There was no written response received.

AUDIENCE PARTICIPATION

Felix Valbena: I am speaking on behalf of the homeowners of Andes Hills. There is only one objection and two concerns. The objection has to deal with the parking in front of the building. We feel that it would be more attractive if the parking would be someplace else. I sympathize with the restrictions of the size of the piece of property. The concerns: One has to do with the landscaping in the front of the building; for beautification purposes we would like to see trees and green. The other concern is that I didn’t see any mention of the sidewalk and I don’t know what the rules are or the ordinance is regarding a sidewalk; but those are our objections and concerns.

DISCUSSION

Chairman Brennan: I think that we can answer one question, the sidewalk variance is granted by City Council and does not fall under our domain. Perhaps the other 2 concerns with respect to landscaping and the front yard parking but I think that the front yard parking was pretty much addressed in their presentation, but maybe they would like to make some comments about what the plans are for that little strip of landscaping there. Although it wasn’t covered and it isn’t relative to us, it is important to them.

Cliff Seiber: This strip of landscaping along the front is actually within the City’s statutory right of way that consists of the road drainage ditch for Taft Road right now and well remain so. There will be some slight enclosure of that to make the slopes work in that area but that is not proposed as a landscape area other than simply to plant grass.

Chairman Brennan: There is no provision for any buffer at all?

Cliff Seiber: No, because it is in the public right of way.

Don Saven had no comment.

Lee Mamola: I am not sure that we covered the question of a façade quite clear enough?

Member Sanghvi: You did.

Chairman Brennan: Is that something that falls under our domain?

Don Saven: Yes.

Chairman Brennan: Then we should talk about that.

Lee Mamola: Just quickly, we had the building designed and submitted and on its way for approval prior to the adoption of the ordinance. Mr. Necchi had stated at the Planning Commission that the design which is in front of you, which was completed before, did comply with the ordinance before it became effective roughly in mid February and now with the new ordinance there is no grandfather provision what so ever that have been in the pipeline more or less. I have been told by Mr. Necchi that the reason that there was no grandfather considerations has to do with other legalities of grandfathering issues in general, which I don’t understand but accept his explanation for that and that we simply ask the Board not to require us to go back and redesign the building which was in accordance with ordinance one day and not the next day.

Kelly Schuler: I have a few things that I wanted to address. The façade ordinance; it was enacted by City Council that all plans that had not yet received preliminary site plan approval by a certain date and I believe that the date was about the 15^th of February, those plans would then have to comply with the new façade ordinance and that is what Mr. Mamola is speaking to.

Kelly Schuler: Another issue that I want to speak on is regarding the wetland buffer. Yes, JCK did give their approval. It was an administrative approval, but because the plan was denied in it’s entirety by the Planning Commission they did not waive the buffer and that is why the 25 foot buffer zone comes to you and a variance is needed for that.

Member Harrington: I have a couple of simple questions and then some comments to make. Mr. Santos, I assume that you are the owner of this property?

Larry Santos: I have an option on the land, yes.

Member Harrington: Are you the owner, or have you exercised the option subject to the variances being granted?

Larry Santos: I am exercising the option, subject to the variances be granted.

Member Harrington: Has that option been exercised?

Larry Santos: I have not received any variances, yet.

Member Harrington: Larry, when did you obtain your purchase option on this property?

Larry Santos: That was on December 18^th, but I had previous meetings with the consultants a month or two before that trying to see if this was a viable situation. The consultants were more optimistic when I talked to them the first couple of times. So, I did talk to them in October or November.

Member Harrington: I am trying to get a sense of what your legal standing is with respect to ownership and how long this project has been in the pipeline. It sounds like about 4 or 5 months.

Lee Mamola: With respect to Mr. Santos, or to myself?

Member Harrington: With respect to the development of this parcel. Have you been involved with this project longer than Mr. Santos?

Lee Mamola: No.

Member Harrington: So, it is 4 or 5 months that we are looking at?

Larry Santos: Yes.

Member Harrington: Up to this point in the meeting and for those of you who are watching on television, you would be unaware completely of a 4 page letter from a lawyer apparently threatening the Board or the City of Novi with a charge of violation of due process and unlawful takings and complete inability to develop the property rendering the purchaser liable for damages and monetary rewards in the event that we don’t pass this variance package. This correspondence was handed to us, with the stuff in the middle of the meeting tonight. Now, if this were Mr. Mamola’s first appearance before the Board I would still have a problem with this procedure, but Mr. Mamola is a long time veteran of this Board and knows what our procedures are and I am advising Mr. Mamola and the petitioner that until and unless this Board Member receives a response from the City Attorneys I can’t possibly vote in favor of the variances. The method of handing this to us in the middle of the meeting, I believe is grossly unfair to us as a Board and I think it is grossly unfair to the City as a whole because no one knows that we have been threatened reportedly by a lawsuit by Mr. Palmiere if we don't grant these variances and I think that we need some professional input from the City Attorney as to whether or not the statement in here "that if we don’t grant these variances a taking has occurred" and second I think that we need from an expert obtained by Mr. Watson or by the City, an expert opinion as to the extent to which these variances are wants and to the extent to which they are needs. As I hear the petitioner and Mr. Mamola, each and everyone of these variances are critical to the project. It sounds like they rise and fall together. It may or may not be, but we a put in the petition of a Board of not receiving any independent input in this regard. I think that because of the nature of the threat of litigation communicated by Mr. Palmieri and delivered to us in the middle of the presentation tonight, coupled with the complexity of the variances requested here; that we do need feedback from the City Attorney. Far be it from this Board to generate a liability to the City. I also think that we need some additional feedback, other than from the petitioner, relative to scope and the complexity of these variances. So, my suggestion to the Board that before we even get into the individual variances is a discussion of are we in a position that we can consider this matter tonight or do we need legal advice and independent architect advice regarding these matters. Those are my comments.

Vice-Chairman Bauer: I would agree with you 100%.

Chairman Brennan: We have a lot of nodding. For Mr. Santos sake, we will just point out that we have historically accepted information that clarifies data in the packet and these renderings were helpful in that regard. However, this troubles me as well; not being an attorney but I will trust Mr. Harrington’s observations and concerns.

Member Reinke: I agree. The other thing there are just too many….maybe there is something wrong with putting this on this piece of property when it requires this many variances. It has to be in a different or something has to be different.

Member Antosiak: For the record, I do agree with Mr. Harrington. I was disturbed to get this in the Meeting and with a quick scan of it; it appears that if the variances are not granted there will be a suit for the taking of the property which I can’t access if it is or isn’t justifiable. I also agree with Mr. Reinke, at this point I don’t know if the problem is the perspective use of the property or the zoning of the property or exactly what. I think that we need some assistance from other City experts.

Member Sanghvi: I would like to go on the record as well that with this letter and the last paragraph "If these administrative liberties are exhausted and the property remains unbuildable court action for compensation for this taking is permitted." I would consider this as a threat. So my suggestion would be that rather than having any further discussion on this, we should table this until we have the adequate legal opinion regarding this letter.

Member Antosiak: I would just like to add particularly so in context of how we are hearing this that there was very little discussion of this project at the Planning Commission and it appeared that at least from the minutes that the intent all along was to go in and get a rejected plan so that a petition could be made to the ZBA.

Member Harrington: My sense is and what I would suggest to the Board, is that the petitioner is entitled to due deliberate and speedy resolution of his variance issues; but I would suggest that this matter be communicated directly to the City Attorney for his comment and his response to Mr. Palmeri’s letter so that we can be guided accordingly. In addition, and I don’t know who the appropriate body is to obtain independent input from, but I think that this is the kind of complex situation that we need someone telling us in addition to the petitioner "yes, that unless we grant this variance there is no way that the property can be developed" which could get rise to a taking. Your lawyer may be right or he may be wrong. We need independent input as some of these issues are quite frankly beyond our individual expertise; we don’t design projects, we approve of variances. We should have some input as to the extent to which there is any room for movement or compromise at an expert level on this whole variety of variances that have been requested. None of which, Mr. Santos, I assure you, communicates any leaning that I have one way or another toward these variances. There is just a whole lot of them for us to look at and I think that we need some additional input and I certainly want to be assured that if there is ultimately going to be a litigation filed that we did so and whatever action that we took was in the context of intelligent advice from the City Attorney. Our local newspapers are full of horror stories and I think that we are entitled to that. We are not delaying you, but my suggestion is that we put you on for the docket next month. Let’s get some help here.

Larry Santos: I understand that. First of all, I have been wanting to speak for 10 minutes here. First of all this letter was not as any kind of a threat. This was an opinion letter. No, this letter was written to me and not to the City, not to the Planning Commission and not to the Zoning Board of Appeals. I asked for an opinion from my lawyer showing him what I was involved in. Believe me I did not approach him with this until 3 or 4 days ago because I didn’t want a lawyer involved in this. We did not in any way, shape or form mean to be grossly rude to the Zoning Board this evening and please don’t hold Mr. Lee Mamola responsible for any of this. This letter is my doing because I asked for an opinion. I needed an opinion to know that if I don’t get these variances "where do I stand?" "Can I still use the land?" "Do I just forget about the land?" "What can I do?" The letter was not meant as a threat, it did not anywhere in there say that there will be a law suit, it said that there could be a lawsuit from either the owner of the land or myself if I picked up the option; if the variances….now, that is his opinion. Once again I think that you are doing the right thing to have another lawyer, Mr. Watson, who has dealt with Mr. Palmieri before discuss it with him or for you to get some kind of rendering from your lawyer.

Larry Santos: I have no problem with you doing that and with me coming back next month, because I want to know too. If I can’t get these variances then the land is not viable. As you can see from the drawings there is not a viable building that can be put on the land with the variances that are in effect as of today. The land was split back in 1968 when the City was not a City. It was a different situation back there. I a sorry that I don’t need a great big plot of land. I just need a small plot of land. There are problems with this particular thing, but I think that I can build something that will be an asset to the City that will be low noise, low odor, low chemicals, low fire danger and a hundred things that are better than what is in a light industrial zoned area. Once again, let me apologize. I know you are getting upset that we just brought this to you, it is my fault that I didn’t contact my lawyer until 3 or 4 days ago because finally it got down to the point when I got this letter from the Building Department that made me look like I needed 18 variances – maybe 6 or 7 but not 18. There are things in here that I definitely believe are in here that should not be in here and they are not variances they are opinions or judgements made by the consultants. In any case, I think that it is lot less than 18. It is a lot less than what this looks like. When I got this thing, at this point and after spending time and effort and money and taking these gentlemen’s time to try and put together a plan avoiding the wetlands, leaving the big green area, trying to do a bunch of things that I thought were assets to the land.

Larry Santos: At the Planning Council, it was a very derisive, negative feeling throughout the whole evening. I wasn’t going to get into all of this, but our landscape consultant giggled for 10 seconds while in her 10 second presentation; she recommended disapproval of my site plan. Now, I have this on tape, do you want me start playing tapes for you? She giggled for 10 seconds and that was her presentation to our Planning Commission. A Member of the Planning Commission said, "well, you know with our restrictions and ordinances in Novi, I think that Mr. Santos should buy more land." Now I was really quite pleased to get his sage advice to me as a business man as to what I need as a musician and as a person who needs a recording studio. Seconds later he put through a motion that the Planning Commission recommends to the ZBA that all my variances be denied. Once again, I was real happy with him. I didn’t see any place in the ordinance that they could recommend to the ZBA anything. They denied my site plan, that is their recommendation.

Larry Santos: All right, once again, let me settle down and say that I am sorry. We did not mean any rudeness to this Board. I think that there your decision to bring me back here as soon as possible obviously and if next month is as soon as possible, hopefully we will all be here next month to do it. Let your lawyer and this was not a threat of a lawsuit, I am not sure that I want to get into a lawsuit if I can’t get these variances and maybe the owner of the land if I don’t get the option does want to; but that is his concern and not my concern. This letter was written to me and it was strictly a letter of opinion and I apologize that it caused you to feel that we were being disrespectful to this Board. I am not disrespectful. You the Zoning Board of Appeals is my last chance to have something on this piece of land and therefore you sit in judgement on it. Hopefully, we can come back and you will take another look at it.

Member Harrington: Part of the problem is the fact that had the correspondence that you just received and I am not arguing with the timing; but having it passed out to us in the middle of the presentation which is 4 pages, single spaced by a lawyer; some of us may be able to deal with that and some of us may not; I think it is the kind of thing that requires careful reflection. It is now part of the record, it is now a part of the package that we have to deal with.

Larry Santos: I totally agree with you, Mr. Harrington. I am sorry and maybe it was a bad move to do this, I did not feel that this was a threat in any sort. I think that if you read if very carefully you will see that he was giving an opinion and rendering that opinion with the facts that I gave him and the zoning book that I gave him as to what he felt on that piece of land. I don’t read any place in there if you read it very carefully that Mr. Santos is suing anybody.

Chairman Brennan: Let me see if we can summarize things and get going here. I think that we have a cooperative agreement here that we will continue this. You will be the first case on the docket next month. I am sorry, we do have another case that will proceed you because they were in line first, but you are number 2. OK? We will ask that this be referred to the City Attorney. I would like Planning to be aware of what went on tonight. I would like the Planners to take a look at what could be done as far as landscaping on that, I think that the abutting residential district has some concerns there and I given that they took the time to express their concerns I would like to re-look at that.

Kelly Schuler: The Planning Department very much wanted to perhaps see a different or a revision to this plan or to have the applicant come in and try to work with the site and we are willing to do that. Actually preliminarily they sketched out what can be built on this site and it is a buildable site with very minimal if any variances. They would like to work with Mr. Santos and are willing to sit down and show him.

Larry Santos: I am sorry, are you saying that the Planning Department has a plan that works with very few variances?

Kelly Schuler: Yes, we have a footprint of a building preliminarily sketched out that could be viable. It might not be what would suit you in particular but it is a building that could be built and in essence it is not a taking of the land since you could actually have a building on the site.

Chairman Brennan: You guys can sort that out. We are continuing this and if you have a revised plan that you want to present next month…..

Larry Santos: We don’t know of any other plan than what we have presented and that is what Cliff has tried to show you, that with the current ordinances the land actually crossed each other. There is not land for building.

Don Saven: Larry, are you willing to sit down with them? Go over what they have now?

Larry Santos: I am 5 months into this thing, obviously I need a certain sized building. You can’t put me in a 20 by 20 building like Cliff showed me that I could be in; but I am the one who said "let’s stay away from the wetlands, leave them alone and let’s build the building down here and leave that green up there".

Chairman Brennan: Board Members, do we have approval on continuing this case? All those in favor say aye. All ayes. Case tabled to the May 4,1999 Meeting.

Chairman Brennan: I think this is a positive move.

Applicant is requesting a 90 day extension of the variance that was granted on December 1, 1998 granting a variance for a 20’ exterior side yard for property located at 22440 Amberlund Court, lot 1, to allow for the construction of a single family residence.

Mauro Petrucci was present and duly sworn.

Mauro Petrucci: I am here on behalf of Mirage Development. We were before you on December 1^st of your 1998 Zoning Board meeting requesting a 20 foot side yard variance for a custom home to be built on lot 1, in Amberlund Estates; which the Zoning Board granted the request that evening. Immediately following the approval, we had taken our preliminary house sketch back to the architect to continue on with completing the architectural and engineering plans. Due to the holidays and many custom changes being made between the homeowner and the architect, we were unable to successfully complete the plans and submit for a building permit in the allowable time. Therefore we are requesting a 90 day extension to the variance that was granted back in December.

Don Saven: That would be no problem.

Chairman Brennan: Board Members, are there any problems? Do we have a concurrent agreement that the petitioner’s request be approved?

Chairman Brennan: All those in favor, please say aye. (All ayes) Request has been approved.

Carl Gauruder was present and duly sworn.

Carl Gauruder: I am John’s brother. John had once gotten a variance, this exact variance before. Upon that he started getting the architectural plans done. He had to move trees out of that area. Remove a deck and a bunch of other things. Finally he has all of his plans approved from the Architectural Committee of his subdivision and he would request that this variance again be requested and granted so that he can go ahead and now get his building permit.

Chairman Brennan: Just for clarification you said that this had been approved before?

Carl Gauruder: Yes, it was approved with Case No. 97-069. September 2, 1997, about 18 months ago. At that time he had gone ahead to do that to just see what would be feasible to go ahead and build. If he could get a variance, then he could figure out what sized addition he actually could put on.

Chairman Brennan: The plans as you are submitting tonight are identical to what we approved in September of 1997.

Carl Gauruder: Yes, I believe that they are.

Chairman Brennan: I will point out that for the record back in September as we heard this case we voted 6 to 0 for approval of this. I will leave it to the Board, do we want to hear this case again or consider their request for an extension and re-approval because the time ran out.

Member Harrington: We should treat this as an extension.

Chairman Brennan: All those in favor of extending the variance request as given in September of 1997, please say aye. All ayes.

Member Antosiak: To what date?

Member Reinke: How long is the extension length?

Member Harrington: How long do you need?

Carl Gauruder: I believe that he has all of his plans ready to submit to the City to go ahead and get a building permit, right as of now. So is the 90 days customary.

Chairman Brennan: That is customary, do you want to waive that and get going?

Carl Gauruder: The 90 days would be fine.

Chairman Brennan: Now that we are clear on that; all those in favor say aye. All ayes.

Chairman Brennan inquired are there any other matters for the Board to discuss tonight?

Don Saven: I received a little memo from Alan regarding Builder’s Square not being in business any more. There was a variance granted for Builder’s Square and for the exterior storage outside was granted until the year 2000, do you wish them to come back before the Board now that they are HQ.

Member Reinke: Does that include this year and next year?

Don Saven: That is correct.

Chairman Brennan: Was that original variance, exclusive to Builder’s Square?

Don Saven: Basically this variance is limited to Builder’s Square only by the Zoning Board of Appeals.

Chairman Brennan: Then they have to come back.

Chairman Brennan inquired when is the May meeting.

Nancy McKernan: The May meeting is on the 4^th, and Mr. Sanghvi said that he would not be able to attend.

Member Sanghvi: Can you fill me in on what happened with the Meeting with the City Council?

Vice-Chairman Bauer: They were very nice.

Member Harrington: It was most interesting; the part that preceded ours.

Chairman Brennan: I think that in general the council was very favorable to the job that we are doing. They reiterated some of their pet concerns which were in line with how we address those types of case and all and all it was productive.

The Meeting was adjourned at 10:35 p.m.

Date Approved _ _

Nancy C. McKernan

Recording Secretary