Flushing Zoning Board of Appeals
Minutes
A Special Meeting of the Flushing Zoning Board of Appeals was called to order on Monday, January 21, 2002 at 7:30 p.m. by Chairperson Robert Kehoe, followed by the Pledge of Allegiance to the Flag.
Present: Elva Cook
Robert Kehoe
George Kozan
Carmon Liversedge
Patrick O’Callaghan
Absent: None
Others Present: Dennis J. Bow, City Manager
Nancy G. Parks, City Clerk/Treasurer
Edward G. Henneke, City Attorney
Agenda Approval – Motion by Cook, seconded by O’Callaghan, to approve the agenda of the January 21, 2002 meeting.
Yea: Cook, Kozan, Liversedge, O’Callaghan, Kehoe
Nay: None
Motion Carried.
MEETING
OPEN TO THE PUBLIC:
Zelma Husband, 220 Mary Street, addressed the Board in reference to the sewer problems present in her neighborhood.
Approval of Minutes – Motion by Liversedge, seconded by Kozan, to approve the October 9, 2001 meeting minutes of the Zoning Board of Appeals.
Yea: Cook, Kozan, Liversedge, O’Callaghan, Kehoe
Nay: None
Motion Carried.
Public Hearing – Zoning Interpretation – 214 Mary Street – Attorney Henneke commented to the Board that this is a case in which the matter has been heard by the Planning Commission. It is now before the Board for the second time, having been here on August 11, 2001 at which point the Planning Commission’s decision to allow the nineteen unit complex to proceed was reversed. The reason for the reversal was with the interpretation of the ordinance based on the definition of unit and dwelling unit. That matter was appealed from the Zoning Board of Appeals to the Genesee County Circuit Court, November 15, 2001. That court, by its order, sent the matter back to the Zoning Board of Appeals. It did not interpret the zoning ordinance and did not ask to do so. The purpose of the order is for the Zoning Board of Appeals, as a body, to make a proper record and in making that proper record, to allow any interested person to present evidence on the issues of appeal. The Zoning Board of Appeals is to make its decision after their discussion and hearing the evidence and the record and their decision must be based on competent material and substantial evidence. The attorney suggested that the Zoning Board of Appeals consider what the ordinance states, the history of the ordinance and any changes, the purpose of the ordinance, the ordinary meaning of the words used in that ordinance and perhaps reference to other sections of the ordinances, or regulations adopted by reference, such as the BOCA building code, and then it is up to the Board to interpret that ordinance. If they support that ordinance, by material, substantial and competent evidence, then this Body will be upheld by the higher court. It must be a reasonable and rational decision based on sound facts. It cannot be based on conjecture or emotional appeal.
Attorney Henneke advised that once all the evidence is in, the Board has discussed the matter, that the Board take a recess and those persons wishing to make a motion, either for – affirming the Planning Commission; reversing the Planning Commission or accepting the Planning Commission’s decision with some modifications. Those persons wishing to make a motion should break away and write their motion up, as to what the motion is specifically with relationship to interpretation and why they reached that decision. This should be read into the record when the motion is made.
The Chairperson advised that the applicant and representative would be asked for comments.
James Dillard, representing Michael Barron the developer of the proposed project, addressed the Board and audience. He stated that one issue needed to be clear from the beginning; this property is zoned for the use Mr. Barron intends to make of it. It is already zoned. The issue before this body is whether there will be nineteen bedrooms in the building, or whether there will be only thirteen bedrooms in the building, and that is the only issue. He stated that the project should be referred to as a “senior citizen dormitory.” Plans have been handed out showing nineteen bedrooms without independent kitchen facilities. He handed out a portion of his brief, filed in Circuit Court, which outlines what a dwelling unit is in the State of Michigan. The first part of the handout contains the state law, which the City has adopted by reference in the zoning ordinance. There is no definition of dwelling unit in the city’s ordinance.
Attorney Dillard stated that the complex proposed falls under what the state law refers to as Class B multiple dwelling; hotels, boarding houses, furnished room houses, clubhouses and the like. He stated that the proposed complex has nineteen bedrooms with no cooking facilities, with a common dining and kitchen area to service the proposed occupants of this complex. Attorney Dillard also quoted from the American Law of Zoning which states a dwelling unit contains complete housekeeping facilities as a boarding house, convalescent home, dormitory, fraternity/sorority house or other similar house shall not be deemed to constitute a dwelling unit. Attorney Dillard also quoted definitions of dwelling units contained in various area municipalities’ zoning codes.
Attorney Dillard stated that the Zoning Board of Appeals must provide an adequate record and explain why they feel that these nineteen bedrooms are dwelling units as that term is defined by the laws of this state.
O’Callaghan asked Attorney Dillard if his client would be satisfied with an absolute prohibition of any cooking facilities such as hot plates, microwaves, etc. Attorney Dillard stated that his client would accept this prohibition of any cooking facilities.
Chris A. Common, 212 Mary Street – Mr. Common stated that the Attorney stated that these were not dwelling units; however, the prints that were supplied to the Planning Board specifically say there are nineteen dwelling units. Mr. Common read several excerpts from the City’s zoning ordinance. Mr. Common stated that it is his opinion, based on the zoning ordinance, that the proposed rooms are dwelling units or apartments. Mr. Common stated that the residents of Flushing were worried about what might go into this building once it is approved.
The Chairperson closed the public portion of the hearing at 8:12 P.M.
Mr. Doug Piggott, engineer with Rowe, Inc. provided history on some of the changes and reasons for the changes in the zoning ordinance adopted by the City in 1994. Mr. Piggott stated that he researched changes made to Appendix A, specifically as it relates to footnote (f) and whether or not those changes might shed any light on the interpretation of the definition of unit versus dwelling unit, etc. Mr. Piggott distributed text from the public hearing that was held prior to the adoption of the zoning ordinance. With regard to footnote (f), there was considerable text that regulated the number of units based on the number of bedrooms. The Planning Commission deleted most of that language. The discussion that they had was that the Future Land Use Plan regulated density based on dwelling units, and allowed for eight dwelling units per acre in the medium density residential district. The regulations as they existed in the ordinance at that time would have limited the number of dwelling units per acre to less than eight if the dwelling units had over two bedrooms or if they had an addition to two bedrooms, a den, or some other room over eighty square feet in size. The feeling was that it was penalizing whomever wanted to come in and put a relatively high quality townhouse development in the MDR district where you had a study or den or some other facility because now rather than being able to build at eight dwelling units per acre, they were limited to six or five or four, depending on how many units they had. That was the reason why the reference to the density per number of rooms over eighty square feet or more including kitchens, dining and sanitary facilities, was removed. The inconsistency in the use of the term unit and dwelling unit in that schedule existed prior to the amendments; the Planning Commission just didn’t do anything to correct it. Mr. Piggott stated that in a cursory reading of the ordinance, that he believes unit meant dwelling unit, but he doesn’t recall any specific discussion by the Planning Commission about the difference in those two terms. He believes that there was no conscious decision on the part of the Planning Commission to leave those two terms in the ordinance as separate and distinct and feeling that they were not interchangeable. He also stated that the provision in the R3-A district allowing for specialized housing for the elderly was taken directly from the recommendations of WBDC who had prepared the City Future Land Use Plan which the zoning ordinance update was based on.
Attorney Henneke asked Mr. Piggott at the time the ordinance was drafted what the term dwelling unit was intended or defined as essentially. Mr. Piggott responded that there was no specific discussion by the Planning Commission as to what the term dwelling unit means. The definition being used for dwelling unit, at the time, was a unit with kitchen and bath facilities, which is the standard definition in planning terms.
Mrs. Cook asked Mr. Piggott how this facility would differ from a boarding house. Mr. Piggott responded that there is some latitude provided in the R-3A district for facilities that are intended to provide specialized housing for the elderly that may have the characteristics of a boarding or rooming house. Depending on what the applicant is proposing with regard to who would be using this facility, that might provide for such a facility even if they otherwise took on the characteristic of a rooming or boarding house.
Mr. Kozan asked Mr. Piggott’s opinion about, in the State of Michigan, if there is adequate attention paid to defining senior facilities, either as independent living, convalescent care, etc., and the facilities that each one should contain. Mr. Piggott felt that it is a nightmare; there are so many different types of definitions for different facilities that overlap. It is very difficult for a community to define by what they mean by this term versus that. The only time there is any kind of certainty is when the terms used are defined by state law.
Mr. O’Callaghan asked Mr. Piggott if it was his opinion that dwelling unit, as in the proposed project, is defined by state law. Mr. Piggott responded that in the very beginning of the zoning ordinance it states that any term that is not otherwise defined is used as in the housing code. Mr. O’Callaghan asked if the housing code specifically defined dwelling unit. Mr. Piggott was unable to answer that question with any professional expertise.
Mr. Kehoe read from a publication from the Department of Commerce in defining units. A housing unit is a house, an apartment, a group of rooms or a single room intended for occupancy as separate living quarters. Separate living quarters are those in which the occupants live separately from other individuals in the building and have direct access from the outside of the building or through a common hall. Mr. O’Callaghan pointed out that this defined a housing unit, not a dwelling unit.
Mr. O’Callaghan made the following statements: He stated that he had reviewed all the documents, for hours, including Judge Yuille’s excerpt reversal of our opinion and bringing it back. I am still tossing in my mind what the proper definition is but I want to make a couple of observations and I’m going from my recollection. If I say I or we, I really mean I, if anyone disagrees please state that. I’m reading Judge Yuille’s definition also, I believe that there has been a request for a cost because we somehow acted arbitrarily several months ago because we did not follow the respected opinion of Mr. Henneke or somebody else and therefore ipso facto, we were arbitrary. I take particular offense to that implication that we were arbitrary because I think we spent quite a bit of time going over all this. I want to compliment Mr. Dillard because a lot of the arguments I wish would have been brought up before, to be very honest with you, but we’ve listened to a lot of the arguments and very little from the petitioner. If we are asked to define what a dwelling unit is then we decide. Then I think it is up to us, but if we decide we want to use the BOCA code there was some discussion at the last hearing using those elements, and I thought very thoughtful discussion by all of us that do these units fall under the BOCA code regulation or definition because I think that was the only definition we had in front of us. The one we were still struggling with was cooking, everything else in my recollection fell under that statute or under that definition. There was some discussion about, well as I asked Mr. Dillard at the beginning about microwaves, hot plates, that was even something in the drawings but I understand that the petitioner has since removed that from his drawing. I don’t think the petitioner ever got up and specifically told us that there was not going to be any cooking facilities. So, I feel very strongly that we did not act arbitrarily last time even if we followed the BOCA definition that we may agree with Mr. Henneke to follow that definition but we may disagree with his conclusion and that under the facts presented to us at that time fell under that BOCA definition. Now, since that time Judge Yuille has ordered us to open this whole thing up again which is different than what my opinion is that you get one shot and you bring your case and then that’s it. I respect Judge Yuille’s opinion that we’re bringing everything up again with additional comments from Mr. Dillard regarding his commitment that there will be no cooking facilities, no microwave, no hot plate. If we ultimately decide to use the BOCA definition and there is no cooking facilities I don’t think this would fall under a dwelling unit. I’m struggling with that but I wanted to make and I’m sorry to take the time but I wanted to make a point, because I know the record is going to be read by the Circuit Court Judge, that I don’t think any of us five acted arbitrarily and we made the decision based on the record at that time. Frankly, if we ultimately decide to follow any of those definitions that either Mr. Dillard supplied to us from various ordinances or the BOCA definition, we get a commitment that there is absolutely no cooking facilities then I guess that wouldn’t be a dwelling.
Mr. Kehoe stated that if this facility is called one unit with nineteen bedrooms, then it will open up a whole other can of worms, like parking for example. Parking for the elderly requires one parking spot per unit. If there is only one unit, then there only needs to be one parking spot. If, under their interpretation, they can have eight of these buildings per acre, up to thirty-six units per acre, the density there would be so great per acre that it would be unrealistic. He also stated that their plans, as submitted, said nineteen units.
Mr. Liversedge said that he found two things very perplexing. Page three of the American Law of Zoning does an excellent job of defining what a dwelling unit isn’t. It starts out to say that a dwelling unit is a building or an entirely contained portion containing complete housekeeping facilities for only one family. That, based on his understanding that these rooms are going to be individually rented, eliminates for one count that the entire structure is a dwelling unit. It also says that a rooming house, boarding house or dormitory, which this has most recently been referred to as, is not a dwelling unit. He felt that if the building itself is not a dwelling unit, then the individual rooms within the building must be units.
He stated that since these are individually rented, they don’t qualify as a family unit, and probably most importantly this is where you dwell, you have no other address. He believes that for these reasons that these are dwelling units.
Mr. Kozan stated that the City’s zoning ordinance states that you cannot have more than eight units per acre. Something has to be a unit, if not nineteen units then it must be one unit. You would not put eight buildings where nineteen people could live on one acre; that goes against common sense. They are going to rent it out, how many units do we have occupied, it’s going to be a question of occupancy. It will be we rented out one today or we rented out A and B today and those will be units, bedrooms, whatever you want to call them. On the other hand, special consideration has been given for senior housing in the state of Michigan. As Mr. Piggott said, when the Planning Commission was putting together the zoning ordinance, they may have been thinking that a good developer may want to come in, want to develop this property. If it’s a good developer and he is going to do it right, then the dwelling unit, as defined by the BOCA code and as it was set up in the original law, should be the way it is.
The Attorney stated that the board needed to make a definition which can be backed up by common sense and have some basis in common application.
Recess – Motion by O’Callaghan, seconded by Liversedge, to take a brief recess.
Yea: Cook, Kozan, Liversedge, O’Callaghan, Kehoe
Nay: None
Motion Carried.
Reconvened: 9:10 P.M.
Mr. O’Callaghan stated that he believes this is a dwelling unit based on the following reasons: there will be individual rent, there will be individual addresses and individual entrances for those individuals, there will be separate parking for each of the dwelling units, the drawings that the petitioner himself noted that these were dwelling units. Not basing a whole lot on that except to point out that this is an area that is fluid, constantly changing it’s difficult to cite something that – may be years old and is a change in society, and have a long discussion about the purpose of all these statutes.
Zoning Interpretation – 214 Mary Street – Motion by O’Callaghan, seconded by Liversedge, that we define this (214 Mary Street) as nineteen individual dwelling units because of the rent, the individual addresses, separate parking, and separate entrances, and that this is an affirmance of the prior decision of this body.
Yea: Cook, Kozan, Liversedge, O’Callaghan, Kehoe
Nay: None
Motion Carried.
Staff Reports – The City Manager requested that the next Zoning Board of Appeals meeting be set for Monday, March 18, 2002.
Adjourn – Motion by O’Callaghan, seconded by Kozan, to adjourn.
Yea: Cook, Kozan, Liversedge, O’Callaghan, Kehoe
Nay: None
Motion Carried.
Adjourn: 9:15 P.M.
______________________________
Nancy G. Parks, City Clerk/Treasurer