BOARD OF ZONING APPEALS
MINUTES
SEPTEMBER 19,
2005
The meeting was called to
order by Chairman Thornton at 7:00 p.m.
MEMBERS
PRESENT: Greg Faulkner, Kelly Thornton, Dick Mickley, Harry McMannis
Excused: Barbara Timmons
OTHERS
PRESENT: City Engineer Roush, Clerk Patterson,
David Toman, Shane Wilkin, Darek Isaacs, Jason Isaacs
APPROVAL OF
MINUTES: There being no additions or corrections,
the minutes for the meeting of August 15, 2005 were
approved as distributed.
AGENDA
ITEMS:
1.
Requesting a variance to
permit 11’ front setback for a shed vs. 25’ minimum front setback required; R-2
zoning district; filed by David M. Toman,
COMMENTS OF ZONING
INSPECTOR AND/OR CITY PLANNER: Per Ms. McCoy’s memo to the Board: According to the recorded final plat for
this section of the Mill Valley Subdivision, the front setback for any structure
is 25’ from the City right of way.
The applicant is requesting 11’ front setback. The zoning permit was issued for this
structure; however, the applicant did not know the part of his property along
COMMENTS OF
REQUESTER: Mr. David Toman addressed the Board. He applied for the permit and did not
understand what a setback was. He
understood a setback to be from the sidewalk, which is incorrect. The shed is constructed and is on a
foundation. The shed is 11’ from
the sidewalk. Mr. Thornton noted
that Mr. Toman has a corner lot, which makes two
frontages. Mr. Toman did not know that. It was not explained to him. Mr. Mickley
asked if the drawing in his possession was attached to the building permit. Mr. Toman said it was.
He showed the Board where he thought the setback was, 5’ from the sidewalk. Mr. Mickley
showed him where the edge of the street was on the map. Mr. Toman said
he was told that was the center of the street to the property line. Pointing to the map, Mr. Thornton stated
had the building been placed 5’ from the one setback and 5’ from the centerline,
it would have been fine. Mr.
Faulkner asked if the drawing the Board had in their possession was the same one
submitted with the permit. Mr.
Toman stated yes. Mr. Thornton asked Mr. Toman how he ended up putting the shed on the outside of his
lot when the drawing shows the shed in back of the house. Mr. Toman
responded that he thought the setback was the sidewalk. He was notified of the error in
placement of his shed after Ms. McCoy’s inspection. The zoning permit was issued using the
map in possession of the Board.
Mr. Mickley asked for confirmation that the shed was built on a
concrete base and was firmly affixed.
Response was yes.
Mr. Faulkner expressed
concern that by approving this, it would set a precedent for other property
owners.
Board members agreed that
the shed is very nicely built and matches the house. Mr. Mickley drove
by and immediately noticed the shed because it sticks out. Mr. McMannis
said he drove by and didn’t even notice it was there when he rounded the
corner. He talked to a couple of
Mr. Toman’s neighbors and they had no problem with the
shed. He stated it is not Mr. Toman’s fault that this happened. Mr. Faulkner feels if the applicant
would have placed the shed where the drawing shows, there would be no
issue.
Mr. Thornton asked if the
shed could be moved with a lift, if necessary. Mr. Toman did
not know. He would have to check
with the company that built the shed.
Mr. Thornton asked who
marked the ground for placement of the shed. Mr. Toman
responded that he marked it. OUPS
came out, the builder came out, the phone company and electric company marked
everything off to where it was going to be. The builder even looked at this and
assumed that where Tammy drew it, the setback was the sidewalk. If the builder went by the drawing, Mr.
Mickley and Mr. Thornton felt the builder would have
been familiar with what the setback lines are.
The shed was constructed on
July 28, 2005.
Ms. Barbara Toman addressed the Board. “When we came in we showed Tammy exactly
where we were going to put it. If
she knew the rules, then she should have told us, and if Barbara had come out
and looked at our property before she issued the permit, she would have seen the
black lines where the shed was going to go. That’s my problem. If she’d done her job, she would have
seen.” Ms. Toman stated it was a mix-up on both behalfs.
Mr. Faulkner moved to table
this request pending the applicant getting an estimate on what it would cost to
relocate the shed, seconded by Mr. Mickley;
affirmative voice vote was unanimous.
Mr. Thornton felt it would
be worthwhile to have the contractor present at the next meeting to help explain
this issue. Additionally, it would
be good to have Barb McCoy present to directly cover this issue.
2.
To hear a request for a
conditional permit to allow retail use, either in a shopping center format or
individual single building, in the M-2 zoning district; to be located at the
west corner of Coleman’s Crossing Blvd. at the Industrial Parkway
intersection. Filed by Lewis
Financial, Inc.,
COMMENTS OF ZONING
INSPECTOR AND/OR CITY PLANNER:
Per
Ms. McCoy’s memo to the Board:
Retail uses are not permitted in the M-2 zoning district. The applicant is requesting a
conditional use to be allowed to have a shopping center that would have a mixed
use of retail uses and also be allowed to have individual buildings that serve
as retail uses.
Although the district
regulations do not list retail as a conditional use in the M-2 zoning district,
Codified Ordinance 1137.02(c) states:
Any use not specifically listed as either permitted or conditionally
permitted or prohibited in Section 1137.40 shall be a conditional use in the
appropriate zoning district and shall only be permitted upon approval of the
Board of Zoning Appeals, rezoning to the land in question or the amendment of
this chapter as provided in Sections 1131.03 to 1131.12 or upon a finding by the
Zoning Inspector that a use is substantially similar to a listed
use.
City Engineer Phil Roush
noted as a point of information, the Planning Commission met on September 26,
2005 and discussed rezoning properties along Coleman’s
Mr. Shane Wilkin of Lewis
Financial addressed the Board. He
explained that without these changes, it would render some of the property
useless. Both of these processes
were recommended by Barbara McCoy because it would be quicker. It is the opinion of the applicant that
by rezoning to SD-1, it gives more conformity throughout the Coleman’s Crossing
subdivision and keeps everything basically in the same line as what is
there.
Mr. Thornton asked if
There was discussion of the
drainage ditch. There is a question
as to who owns that ditch. On the
Coleman’s Crossing plat, it is referred to as the County ditch. Subsequently just this summer, the
Mr. Thornton questioned
these two applications before the Board, when the rezonings in front of City Council would take care of the
issues if approved. Mr. Wilkin
explained it’s important now because there are things
in the works that they would like to move on as quickly as possible. Mr. Thornton commented that he would be
more inclined to wait until Council makes a decision. Mr. Darek
Isaacs, property owner, stated that timing is very important. There is more to beginning a project
than just breaking ground. There is
a lot of prep work that must be done, and timing does impact the project.
Getting approval on these applications would allow prep work to begin
immediately.
COMMENTS OF CITIZENS: No
comments.
DISCUSSION BY BZA
MEMBERS: Mr. Mickley moved to grant the Request for Conditional Use to be
used as retail uses allowed in zoning SD-1, seconded by Mr. Thornton and the
question put, stood:
Mr. Faulkner
YES
Mr. Thornton YES Mr. Mickley
YES Mr. McMannis
YES
Conditional use was
granted.
3.
Requesting a variance to
permit 40’ front setback and 10’ side setbacks as opposed to minimum of 80’
front setback and 30’ side setbacks required for proposed restaurants, retail
buildings and gasoline station; M-2 zoning district; to be located at both
intersections of Coleman’s
COMMENTS OF ZONING
INSPECTOR AND/OR CITY PLANNER:
Per
comments from Ms. McCoy’s memo to the Board: Codified Ordinance 1137.31 requires a
minimum of 80’ front setback and a minimum of 30’ setback for the side property
lines. Because both of these
properties are located at a corner, there are two frontages and two sides as
opposed to one frontage, two sides and a rear property
line.
Mr. Roush added that when
Coleman’s Crossing project was developed, the
dedication of Coleman’s
The Board expressed concern
for the narrow piece of property and what could be put on that piece of
property. The applicant said they
have no firm plans for this piece of land.
The gas station is a concept only; however, it would work well on this
property.
Mr. Thornton cited the
code, “Variances shall not be granted on the grounds of convenience or profit,
but only where strict application of the provisions of this Zoning Ordinance
would result in unnecessary hardship.”
Mr. Wilkin responded that if you take into account the drainage ditch and
the lay of the lot, that’s where their hardship comes from.
Mr. Thornton asked if the
applicant owned the lot that Sam Jackson now owns. Mr. Darek
Isaacs said he sold the lot to Sam Jackson. Mr. Thornton asked why Mr. Jackson didn’t
want the piece of frontage too. Mr.
Isaacs responded that there is a lot of unusable ground on the 6.6 acre parcel
and the 1.65 acre parcel. The main
reason is that the county ditch easement
runs right through the middle and especially dissects at 6.6. When the area was zoned M-2, they never
envisioned a Coleman’s Crossing coming through and changing the landscape of
that area. On the 6.6 pie-shaped
piece of property, if you look at the buildable spot
between the county ditch easement and 80’ setback, that renders the ground
useless and so does the 1.65. There
are very few things that can fit on the 1.65 acre parcel. The only way they can develop that and
bring more commercial businesses to Marysville is to work within those SD-1
setbacks, which are 40’. Mr.
Thornton said the applicant helped create this problem by how he split the
lots. Mr. Isaacs stated no, he
maximized the usable ground in that area.
It was originally thought a gas station or car wash was a good business
for that 1.65 acre parcel. To sell
that piece to Sam and have that run through his property, he was not interested
in that. On the 6.665 acre parcel,
the reason all that is usable is because you can develop on one side and develop
on the other. Everything is cut in
half by that easement. What the
applicant is trying to do is develop on both sides and not just waste an acre of
ground on a good entrance to Coleman’s Crossing.
COMMENTS OF
CITIZENS: No comments.
DISCUSSION BY BZA MEMBERS:
Mr.
Thornton had an issue with the small piece of ground. He had no issue with the 6.665 acre
parcel. He asked the applicant if
it was imperative that they have a decision on both of these parcels
tonight. Mr. Jason Isaacs responded
yes. Mr. Mickley asked the applicant if it would make
a difference if the Board were to vote on each parcel individually.
DISCUSSION BY BZA
MEMBERS:
Mr. Mickley referred to BZA guidelines stating, “Special
conditions and circumstances do not result from the actions of the
applicant.” He feels they
do. The applicant knew the ditch
was there. The zoning has been set
for quite some time.
Due to previous discussion
and a request from the Board, Mr. Isaacs asked to split the parcels so that the
Board can vote separately and also asked to table the 1.65 acre parcel until a
later date, specifically until after Council has considered the zoning.
Mr. Isaacs asked the Board
what problem they had with the 1.65 acre parcel. He noted when looking at these and
trying to utilize the entire piece of property and maximize it, they take into
consideration the zoning, but also take into consideration that the zoning was
set at a point in time when no one knew what this area would evolve in to.
Mr. Mickley responded that the Board has a problem with the
smaller tract of land. The
applicant sold off the rest of it and kept that little piece knowing that it was
not very big, knowing at that point, there was nothing you could do with
it. Mr. Isaacs agreed. They did that to maximize it. Mr. Isaacs was of the opinion that they
would not be approved a lot split if it was an unusable piece of ground.
Mr. Mickley moved to amend the request for variance to split off
the two parcels into separate applications, seconded by Mr. Faulkner and the
question put, stood:
Mr. Thornton
YES Mr. Mickley
YES Mr. McMannis
YES Mr. Faulkner YES
Motion
passed.
Mr. Thornton moved to grant
the variance request on Parcel # 290023054103, 6.665 acres, seconded by Mr.
Mickley and the question put,
stood:
Mr. Mickley YES Mr. McMannis
YES Mr. Faulkner YES Mr. Thornton YES
Variance
granted.
The Board considered the
following: The variance to permit
40’ front setback and 10’ side setbacks as opposed to minimum of 80’ front
setback and 30’ side setbacks required for proposed restaurants, retail
buildings and gasoline station; M-2 zoning district; to be located at
290023054102, 1.687 acre lot.
Per the requester’s
request, Mr. Thornton moved to table this agenda item until Council has approved
or disapproved the potential rezoning of this area from M-2 to SD-1, seconded by
Mr. Mickley and the question put,
stood:
Mr. McMannis YES Mr. Faulkner YES Mr. Thornton YES Mr. Mickley
YES
Motion to table
passed.
ADJOURNMENT: There being no further business to come
before the Board of Zoning Appeals, the meeting adjourned at 8:30
p.m.