Flushing City Planning Commission
Minutes
A Regular Meeting of the Flushing City Planning Commission was called to order on Monday, March 1, 2010 at 7:35 p.m. by Chairperson Kevin J. Keane, followed by the Pledge of Allegiance to the Flag.
Present: Gregory J. Bois
Daniel D. Borgerding
John C. Gault
Kevin J. Keane
Deborah Kiertzner
Robert Matsko
John C. Olson
Absent: C. Neil Blackmore
Dennis Bueche
Others Present: Dennis J. Bow, City Manager
Oath of Office - At this time, City Clerk Nancy Parks administered the oath of office to Daniel D. Borgerding, Kevin J. Keane, and Deborah Kiertzner.
Election
of Officers - Chairperson– Motion by Olson, seconded by Matsko, to nominate
Kevin J. Keane as Planning Commission Chairperson. Nominations closed.
Yea: 7
Nay: 0
Motion Carried.
Election
of Officers - Vice Chairperson – Motion by Gault, seconded by Bois, to nominate
John C. Olson as Vice Chairperson.
Nominations closed.
Yea: 7
Nay: 0
Motion carried.
Approval of Minutes – Motion by Borgerding, seconded by Bois, to approve the minutes of the January 4, 2010 Regular Meeting, as written.
Yea: 7
Nay: 0
Motion Carried.
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Minutes
March 1, 2010
Page Two
New Member - John Gault introduced the newest Planning Commission member, Ms. Deborah Kiertzner, to the members and audience, stating that she is also the Race Director of the Crim Festival of Races.
Dale Harris, 8380 Maurice Lane, proposed an addition to Skip’s Come Back Inn. He proceeded to give an overview of the proposed expansion, including exterior improvements, expansion of lower level for outdoor dining, and an upper level deck for outdoor dining.
Several historic photos, showing upper level porches, were presented, as well as architectural renderings of the proposed expansion, with Mr. Harris explaining their plans.
Elva Cook, 1459 Flushing Road, voiced her concerns that an elevator be installed at the restaurant (Skip’s Come Back Inn).
Kelly Sanders, 413 Coutant Street, stated that she is in support of Mr. Harris’ proposed expansion, giving several reasons for that support.
Don Liske, 200 E. Main Street, agrees that the proposed expansion is a great idea and supports it 100%.
Brent Laponsoy, 114 E. Main Street, supports the concept and feels it would drum up more business downtown.
NEW BUSINESS:
Other Ordinance Amendments No. 1 - Definitions – Chairperson Keane requested City Manager Bow address the commission as to this agenda item.
Bow began by explaining that “structures” are defined as anything constructed, erected, or moved on a premises, the use of which required more or less permanent location on the ground, or attached to something to have more or less permanent location on the ground, excluding landscaping, berms, trees, utility poles and signs.
At a recent Zoning Board of Appeals (ZBA) meeting, an issue before the board was that of a resident who had a deck and pool that greatly exceeded the area requirements for a lot (30%), which prompted whether we want to modify the term “structure,” and, if so, what caveats would be placed on it?
Flushing City Planning Commission
Minutes
March 1, 2010
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Olson feels something should be done with the definition to limit it to decks and similar structures, but added that keeping green space in backyards is also important.
Keane offered that that particular lot also has grade issues that the appellant believed limited use of the property in its full legal description, and, in his (appellant’s) opinion, the decking around the aboveground pool enhanced the value and appearance of the property.
In response to Bois’ question as to what, specifically, the Planning Commission is being asked to do with regard to this issue, Bow replied that 1.) exceptions to the language could be added, 2.) language could be added to the ordinance so that it can be done with certain limitations and standards, and 3.) it could be made a special use requirement if they exceed the 30%, which would give the ZBA some latitude in handling these types of issues.
General discussion followed.
Building Inspector Gerald Hall explained that the 30% coverage formula is a result of the light ventilation that is hampered, and the impervious surfaces that are covered. Therefore, swimming pools aren’t as much of an issue as a three-car garage would be when applying the formula.
Keane gave an overview of discussion to this point; Olson is concerned that the covered square foot minimum should not be affected when it comes to buildings, but perhaps some language could be developed to allow the ZBA to grant variance, in select cases, where it does not negatively affect neighboring properties.
Borgerding questioned whether the ZBA, even with the ability to grant a variance, would have been able to solve this problem. Bow responded that language and standards would apply, and they (ZBA) can be given some flexibility.
Bois commented that it seems we’re better off redefining “structures” and using Special Use Permits.
Bow offered to approach Doug Piggott (Rowe Professional Services Co.) for language, although he doubts we can come up with “one size fits all.”
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Minutes
March 1, 2010
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Other
Ordinance Amendments No. 1 - Definitions - Motion by Bois, seconded by
Borgerding, to recommend that the city manager acquire proposed language
revision from the city planner.
Yea: 7
Nay: 0
Motion carried.
Discussion:
Gault doesn’t feel we should change the language if this is just one unique case.
Borgerding feels it is too restrictive and we need to have some latitude.
Bois agreed with Borgerding and feels the use of a Special Use Permit would give the ZBA the latitude to make a decision. Bow, however, added that the hard part is coming up with standards and the development of the language.
Gerald Hall added that the commission is talking about special and conditional uses, and uses are not dimensional variances. Uses are for uses that may not be compatible in a certain district. That’s why we have special use standards that the ZBA can look at, but there isn’t such a mechanism for variance and dimensional uses.
Borgerding commented that, if he understood what Gerald Hall just said, to allow Special Use language, the structure in question still could not have been allowed, and Mr. Hall agreed.
Other Ordinance Amendments No. 2 – Discussion of Sign Ordinance Provision Considerations – Bow read aloud the request to the Planning Commission that they consider verbiage in the Sign Ordinance, Section 156.15.1, Non-Conforming Existing Signs, Permits and Terms - The last sentence in the section represents a degree of difficulty for sign owners, wherein changes to the face of a sign are made, the result of which mandates the removal of the sign so that it is brought into compliance with current code requirements. This is standard language in many ordinances, not all, but may need to be modified when the change does not increase the degree, or the extent, of the non-conformity.
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March 1, 2010
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The question is, would you recommend allowing some modification to existing signs where the verbiage change does not result in full compliance with current provisions? For example, this section might not apply to instances with the change of a business entity, or where verbiage changes but the same type of business remains with a similar product line. Another example might be a change to a phone number. Modifications such as these would need to be carefully considered, as without verbiage contained in the ordinance requiring current compliance, may virtually eliminate changes that are deemed to be desirable within the community.
Essentially, businesses are asking for changes to an existing sign, such as phone number, and because of the current ordinance, they are required to downsize the freestanding sign to come into compliance, because of a change in phone number. Although it’s not a bad requirement to have in the ordinance, how do you bring current old signs into compliance with the current ordinance?
Bois questioned whether we can allow reasonable variances? If we agreed to make a change, at what point would they be required to come into full compliance?
Bow continued that the city has been approached by a couple of businesses where they have an existing sign and all they are requesting is a change on the faceplate of an existing frame.
General discussion followed.
Olson offered that change of ownership should trigger compliance.
Bois feels that the trigger should be at the point of replacement of an existing sign.
Keane cited 156.15.1, the supposed grandfather clause, which allowed non-conforming signs to remain in place, non-conforming; but changes, any alterations, triggered the mandatory conformance. He continued that the ordinance also mandates a minimum setback from the curb, which brings safety into question.
Other
Ordinance Amendments No. 2 – Discussion of Sign Ordinance Provision
Considerations - Motion by Gault, seconded by Bois, to recommend that the
city manager acquire proposed language from the city planner in this issue.
Yea: 7
Nay: 0
Motion carried.
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Minutes
March 1, 2010
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OLD BUSINESS:
Café Ordinance Amendment/Zoning Ordinance Amendment – Bow stated that the city attorney, who was present at the last meeting, brought out several issues he would be concerned with if the city moved forward with an ordinance that would allow some type of a building improvement extending into the right-of-way from a level other than the first level. Among those concerns were issues of pedestrian safety, patron safety, issues affecting the right-of-way, issues pertaining to a second level deck above Cornwell Park, and experience of other Michigan communities. The ordinance presented this evening has been re-written in an effort to include these concerns, as well as issues brought up at the January meeting.
The building inspector is here to address the Planning Commission relative to issues relating to the ADA and the Michigan Barrier Free Code, as well as language in the proposed ordinance amendment, such as the Zoning Ordinance amendments required to allow encroachments into public space with permanent types of structures, which could be handled through a Special Use Permit tying it into Site Plan conditions.
Gerald Hall, Building Inspector, stated that the Americans with Disabilities Act is a federal law and is enforced by the Department of Justice. Mr. Harris’ architect, Mr. McDade, did a fine job citing the ADA. However, he is required to enforce barrier-free, and both ADA and Michigan Barrier-Free are civil rights laws, with a very narrow margin of latitude. Mr. McDade will supply him with the updated code requirement citations for the Michigan Barrier-Free, so that he can then do the plan review, making sure that it does comply. In short, we are required to provide business services in an integrated environment, which seems to suggest that the second story deck and use of that building would be integrated enough to satisfy at least the ADA. We need to sit down with Michigan Barrier-Free requirements and then balance that with the city’s responsibility to provide for those goods and services in that integrated environment. However, without having that code citation available to see how it complies, it looks like it might work, but then, again, he’s not sure. As far as egress elements go, Mr. McDade provided some citations on the Michigan Building Code that seem to work, but, again, he hasn’t spent the city’s money to make sure that they do; he charges them for that, not the city. They haven’t provided him with everything he needs to get into the code to make sure that these things will work the way they are suggesting. With that said, he then asked if there were any questions that he could address.
Bow stated that, for those who may not be aware of it, Gerald Hall is our building official on a contractual basis. He is not an employee of the city. Whatever he does, those costs get passed through to the people who are applying for permits.
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March 1, 2010
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He continued that secondly, some downtown business owners have been under the illusion that they have to have an elevator, and some have found that that’s not the case in every instance. What are the conditions where you have to have an elevator?
Hall stated that the law requires goods and services be provided in an integrated environment. Now, whether the second story use of that building without handicap accessibility is defined as an integrated environment with the first floor, which is handicap accessible, that’s what we really need to look at, and that generally requires a call to the Michigan Barrier-Free Division of the state to see what their pulse is on it, because that does get refined, from time to time, as these situations come up. So, what we’re looking at with Mr. Harris’ issue is, can we have a viable business use that integrates the environment for everybody, able-bodied and handicapped, without providing an elevator?
Bois inquired as to whether that much modification to the building triggers anything else, to which Hall replied that yes, there are four levels of rehabilitation in the Michigan Rehabilitation Code for existing buildings; repairs and then three levels of construction. Once you hit 51% remodeling in the building, then you have to bring everything up to code. Anything less than that, only that portion being worked in has to be brought up to code. The second floor use, as it gets expanded, would have its own inherent code requirements. Michigan Barrier-Free is the most difficult hurdle to jump at this particular point. The civil rights portion of that is where we really want to be careful and make sure the code citations Mr. McDade provides us are, in fact, something we can hang our hat on.
Borgerding asked if he had any comments on the proposed ordinance amendments, to which he responded that he’s just been introduced to it and requires time to review it in depth.
Bow stated that he would like to review the provisions that would address some of the concerns that the attorney and the insurance company would have, relative to allowing a structure to go out into the right-of-way, and when do you allow that to happen, and can everybody do that in the CBD district, or just certain people? The Zoning Ordinance will have to deal with encroachments into the right-of-way relative to the Special Use Permit.
Bow continued that these amendments should deal with all the issues the attorney and insurance company were concerned with. Section 7, I) requires “all structures projecting into city right-of-way above the first floor level will be enclosed, so as to prohibit debris or other obstacles from harming pedestrians below.” Permanent intrusions into the right-of-way, and when you allow them, is the question that will make or break this issue. Both the Café Ordinance and the Zoning Ordinance will need to be modified in order for this to happen.
Flushing City Planning Commission
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March 1, 2010
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Borgerding inquired as to the strikethroughs in the proposed amendment, to which Bow explained that these issues would be dealt with through the Michigan Code that is in place, and the darkened sections represent the issues raised during the January 4, 2010 meeting.
Bois and Keane asked if this ordinance applies only to the CBD district because of the encroachment elsewhere in the city that is being dealt with. Bow replied that he believes the ordinance applies to CBD, B-1 and B-2 zones, but you can limit it to the CBD and it would apply to all structures within the CBD, as long as they’re serving food. Borgerding asked as to why we would limit it to the CBD, and Bow replied that you don’t have to; you could expand it; but, the question is, would you allow permanent encroachments into any right-of-way in all three districts, on Pierson Road. Could you write it in such a way that you would allow that encroachment out into the right-of-way?
General discussion then followed as to how a business could develop a second level deck without encroaching into the sidewalk, curb, or street, as well as cantilevering and the structural changes that would be required to accomplish this.
Olson inquired as to what is located in the rights-of-way and Bow replied there is storm, sanitary, water, cable, telephone, electricity and gas in the right-of-way. He added that all of the major utilities are down approximately four-five (4’-5’) feet. Keane stated that primary electric is required to be forty-eight (48”) inches, medium pressure gas distribution main at a minimum of thirty-six (36”) inches at one (1’) foot separation from the primary electric, and secondary electric voltage services must be a minimum of eighteen (18”) inches.
Following discussion, Bow advised that the language allowing for encroachment into rights-of-way has yet to be prepared, and that the amendments presented this evening are an attempt to address all the issues brought up at the last meeting. He added that the zoning ordinance provisions will be more difficult, and may require a separate zoning district.
Borgerding feels that the size of any cantilevered/second floor deck needs to be addressed as well.
Bois inquired as to the fire escape ladder proposed and Mr. McDade replied that the state allows a fire escape, but not a ladder. He continued that it would be a mechanical ladder that actually folds, and you would release a latch and it extends out and comes down as a stairway, not as a vertical ladder.
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Minutes
March 1, 2010
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Following Olson’s concerns
relating to affordability of cantilevering, Mr. McDade offered that he designed
the deck so that it doesn’t attach to the building, and is not supported by the
building. Borgerding inquired as to
whether it could be removed in the winter, to which Mr. McDade replied that
there are ways that could be done.
Mr. Harris inquired as to whether an indemnification clause would be of benefit in assuring the city does not incur additional expenses relating to his request to utilize posts in the proposed structure.
General discussion followed.
Café
Ordinance Amendment/Zoning Ordinance Amendment - Motion by Bois, seconded
by Olson, to postpone action on Old Business, Café Ordinance Amendment/Zoning
Ordinance Amendment.
Yea: 7
Nay: 0
Motion carried.
Bow will request Mr. Doug Piggott attend the next meeting.
Adjourn: 10:00 p.m.
Respectfully submitted,
Joanne P. Black
Recording Secretary