Minutes: November 9th, 2011


November 9, 2011

The regular meeting of the Catawba Island Township Board of Zoning Appeals was held on November 9, 2011 in the conference room. The Pledge of Allegiance was recited. The meeting was called to order at 7:30 p.m. by Chairman Bryan Baugh.

The other Board members present included Tom Anslow, Jack DeVore, Sandra Erwin, Dale VanLerberghe, Doug Blackburn, and Jack Zeigler. Zoning Inspector Walter Wehenkel was also in attendance. Todd Sommer was in attendance as well representing the Marine Max application.

Chairman Baugh described the procedure that would be used during the meeting. He requested Sandra Erwin, Secretary for the Board read the first case.

Case # 543693

Sandra Erwin stated the first case was an area variance being requested by Marine Max for property at 1991 N. East Catawba Road. The request is for a reduction of the side lot line from the required twenty feet to five feet for three modular units. All fees have been paid, notices sent to adjoining property owners, and published as required in the newspaper.

Bryan Baugh asked if any member of the Board had a conflict on interest in this case. No member had a conflict.

Todd Sommer was present to represent Marine Max. He was sworn in by Brian Baugh. Mr. Sommer stated he is with Sommer Mobile Leasing. They are the company that will be providing the modular units. They have worked with Marine Max previously. The units will be used for a restroom facility, sales office and parts sales. He clarified the exact location of the new units down by the dock area using a larger drawing. He offered to answer any questions the Board members had on the request.

Bryan Baugh asked if any Board member had questions. Jack Devore stated he was confused. He visited the site and there were no flags or markings for identification purposes. It was difficult to get back there to begin with. He did not have a very clear picture of where each unit would be located. He understood they might be clustered together, but it was not very easy to visualize.

Mr. Sommer stated the fence line is the property line. He apologized for the lack of markings, but stated that Mr. Wehenkel had not informed him to do anything. Mr. Devore asked if the fence was the lot line. Mr. Sommer stated it was. Mr. Devore stated the units as they sit on the site are closer than five feet to the lot line. Mr. Sommer stated he was not aware of the distance the building presently was located from the fence. The variance request is for five feet. The unit would be five feet if the variance were approved.

Doug Blackburn asked Mr. Sommer if he knew if there were docks beyond the location of the proposed building. Mr. Sommer stated he was not sure. He believed there was a bulkhead in the area of the water with a floating dock. Mr. Blackburn stated his concern is ingress/egress for emergency vehicles. If a boat catches fire up against the wall, it is a serious concern. It will really tighten the area up. Mr. Sommer stated the majority of the area is open except for the boat lift.

Tom Anslow stated he had to tie Jack and Doug’s concerns together. He could not tell where the units were going to be sited during his visit to the site. It was hard to visualize. It was not open today with a lot of activity going on. The drawing was a small scale without dimensions on the building or land. Mr. Sommer pointed on the drawing what building would be staying and which would be removed and replaced. Mr. Anslow asked if the unit in the front was being relocated to the rear. Mr. Sommer stated the double wide in the front was being removed from the site, once the office in the front is completed.

Mr. Anslow stated in the previous zoning variance request, the unit up front was to be relocated. There are multiple variance requests, some of which may be conflicting. Doug Blackburn added that with the last variance request some of the proposed uses were being added to the end of the building. With this request they are being located in a different location. They are changing the request.

Mr. Wehenkel stated Marine Max has not applied for any zoning permits from the previous variance requests. In fact, he was informed by Marine Max that they were not interested in pursuing them at this point in time. Tom Anslow asked if they become invalid after a period of two years. Mr. Wehenkel stated there is no time limit unless the BZA establishes one. Dale VanLerberghe wondered if they were good for only eighteen months. Mr. Wehenkel stated that timeframe applies to a zoning permit and not a variance. Doug Blackburn’s question/concern is what would stop them from using the previous variances in the future once this variance is approved. Mr. Sommer stated it all has to do with economics. Indoor storage is at a premium. His present job is to place the three new modular units and remove the modular from the front. Once the building up front is removed, that area will be converted into parking lot. Mr. Wehenkel referenced the Callahan variance from the October 12, 2011 meeting.

Mr. Anslow likened the present proposal to “salami slicing.” How many bites of the apple are allowed? There were the previous variance of a year ago and now this variance. Where does it end? Mr. Sommer stated Marine Max will do it right. The modulars are temporary for four or five years. Janotta and Herner will end up building something nice in the future.

Bryan Baugh asked if a stipulation could be added to this variance that would prevent building from occurring in the areas previously granted variances. Mr. Wehenkel stated
the Board would likely be overstepping their jurisdiction. Bryan Baugh asked if the previous variance request was for a side setback. Doug Blackburn stated that was correct. Jack Zeigler asked if the previously approved variances could be negated. Mr. Wehenkel stated it was his belief that the variances could only be negated with the approval of the property owner. He doubted that Marine Max would agree to do that. Mr. Sommer stated he thought Marine Max might agree to that.

Doug Blackburn stated that as long as the variances remain on the books, Marine Max could use them in the future. Bryan Baugh stated he was not concerned over the addition in the rear being built. There is presently plenty of room in the rear. The previous variance will take away parking as would another building granted by the previous variance. Bryan Baugh stated the lack of parking is their problem. Tom Anslow stated it is so crowded on site today with boats and trailers that parking is a problem. Off street parking dimensions are stated in the zoning resolution. Not sure how they are meeting the current requirements.

Mr. Wehenkel stated there was a meeting previously between Marine Max, township officials, and County officials where building and parking were all identified. He believed that meeting was in 2009. At that time all parking requirements of the zoning resolution were being met. Until additional construction occurs, those requirements should still be met. At this time no zoning permits have been processed. Mr. Wehenkel stated there have been two letters sent to Marine Max this year concerning their operation. One was sent in June concerning the use by Marine Max for parking on the township’s boat launch property. The second was sent in November concerning the staging/storage of boats in a variance area that was to remain unencumbered as a condition for a variance approval in 1997. It is not necessarily what would be expected from Marine Max. Tom Anslow stated he was just there today and there were boats along the entire north property line. Mr. Sommer thought that a lot of the boats had already been moved. Mr. Wehenkel stated the variance approval required it to be unencumbered at all times, not most of the time.

Mr. Sommer stated additional area will be available in the front of the property when the building is removed. Tom Anslow stated he believed that area would be filled with boats for sale and not available for automobiles. He stated it is difficult for zoning boards to take any action that impedes businesses in the present economic times. Doug Blackburn agreed, but stated the zoning boards are not going to do approvals “carte blanch.”

Mr. Anslow had some additional comments. Dimensions were poor. The application was difficult to read. He stated that he was concerned about lot coverage. Mr. Wehenkel stated there is no lot coverage requirement for principal buildings in the “C-4” District. Lot coverage requirements only apply to accessory building. The proposed buildings are not accessory buildings. They will be available not only to customers of marine Max, but to the public. If they were accessory buildings, they could be located five feet from the property line and would not be an issue. A sales office is not an accessory use.

Mr. Sommer stated Mr. Connor would be coming back from Florida shortly. In a conversation with him today, he was told that the modular up front should be gone by Thanksgiving.

Bryan Baugh asked Mr. Sommer if he had additional comments. He did not. Mr. Baugh closed the public hearing portion of the meeting and the Board members began deliberations.

Mr. Baugh stated there appears to be other alternatives to the variance request. Mr. Devore stated he was in agreement that there are other options. Mr. Baugh asked where the parts sales presently are located. Mr. Sommer stated it is up in the front in the modular. Mr. Baugh stated if the modular is removed there is no place for the parts department to go. Mr. Sommer stated in addition to the parts portion, there would be three sales persons in each of the sixty-six foot long modular units proposed in the rear. It will meet all ADA requirements and have a handicap lift at each building versus a ramp.

Mr. Blackburn stated that the width and depth of this modular would appear to fit in the area previously granted a variance at the rear of the building for the parts footprint. He wondered why it wasn’t being located there. Mr. Sommer stated he could not respond to that question. Tom Anslow stated they have about a quarter of a mile under roof. There are other options. Mr. Blackburn stated getting rid of inside space which is at a premium, is probably not desirable. But a location within the previous footprint area would work. Maybe Marine Max needs to reconsider the sales and parts office location and the Board could approve the shower location as it makes sense. Mr. Sommer stated it is up to Marine Max and utilities may be an issue as well. Tom Anslow stated it is not the Board’s function to fix an application, but rather to approve it or deny it.

Mr. Anslow stated he is still having difficulty viewing it in a positive light. Mr. VanLerberghe asked if it would be easier or make a difference if it was outlined in paint. Mr. Anslow thought that it would. Walter noted it would not be marked with flags. Mr. Anslow felt it should have been marked somehow. Mr. VanLerberghe wondered if the best option would be for the application to be tabled, subsequently the site would be marked, and the application would be reconsidered at the next meeting. Mr. Anslow stated he realized it was a parking lot, but something should have been shown. Mr. Sommer stated timing is everything. If the Board wants it marked, he can have it done by noon tomorrow. It won’t take that long to do it. He can’t speak for Mr. Connors of Marine Max, but doing concrete work in January and February is difficult. He can’t do anything until December anyway. Timing is a big issue as is the approval dates. Unless you have a special meeting, it will be difficult if the request is not acted on tonight. Mr. Sommer stated he was not sure if Marine Max would even do the project. The numbers will need to be put together, but they were waiting until this decision was made. Can have it lined by noon on Thursday with orange paint.

Bryan Baugh asked for a sense of the Board. Jack Devore stated they put some thought into the prints, but they should have been better prepared with their ducks in a line. They are professional people. Not the first time they have been before us. Mr. Blackburn stated he has trouble approving this variance with all of the other variances they already have that they have not used. They already have a place to put two of the three structures. He pointed to the spot on the map. Mr. Devore stated he felt they were deceiving the Board. Doug Blackburn stated the economics of the situation would dictate a smaller building located in the previously approved area would work. Mr. Sommer stated anything exists, but it comes down to a dollar and cents decision and what is available.

Mr. Sommer stated the Board is trying to alter the plan of the applicant and he wonders if the Board has the right to do that. Mr. Blackburn responded he knows he has the right not to grant this variance request. Mr. Sommer stated he agreed with that statement, but suggested the Board put a stipulation concerning the previous variance. Mr. Anslow stated the Walter Wehenkel had addressed that issue and he doesn’t see Marine Max or any business giving up something up. Jack Zeigler stated they can review their plans and submit another request.

Mr. Anslow stated the Board needs to discuss the merits of this deal being five foot off property line instead of twenty. The plan also calls for the elimination of ten to twelve parking spaces. He asked Mr. Wehenkel if parking has to be delineated or marked out for each building or can they just say we have enough parking on-site. Mr. Wehenkel stated, to the best of his recollection, the previous 2009 drawing showed all of the parking spaces on site. Mr. Anslow wondered if these parking spaces were shown on the previous 2009 plan. Mr. Wehenkel stated to the best of his recollection, they were not.
Mr. Anslow says these are the types of issues the Board needs to be considering.

Jack Devore asked if Marine Max received a variance for the modular in the rear. Tom Anslow stated he did not believe that they had. Jack Zeigler stated that building was proposed to be eliminated when they built the structure approved under the previous variance request. Jack Devore stated he was just not happy with the picture he was seeing right now and he is not comfortable granting another variance with so many unused variances.

Bryan Baugh read the Finding of Fact questions and responses. Item #1 dealing with a reasonable return. Feel free to chime in at any time. Bryan stated there would still be beneficial use without the variance. However, consider limiting a business from moving forward. Jack Devore stated the previous variance had new facilities going into that building. Now this could be viewed in two ways related to return – more parking versus more facilities. Limited parking creates issues. Bryan Baugh added their answer was that sales would expand through customer base through the relocation.

Question #2 – Is it Substantial. Maine Max answered was convenience for their boaters. Bryan Baugh stated five foot is common and therefore not substantial. They describe it more as a convenience.

Question #3 – Essential Character – Bryan Baugh felt it was at the rear of the property with water on multiple sides with shake siding and not an eyesore. Tom Anslow added it would not substantially hurt anyone. Area is a closed in area. Dale VanLerberghe agreed.

Question #4 – Governmental Services - Their answer is no, but difficult to read. Doug Blackburn stated fire/safety concerns are his issue. Seeing it laid out on the ground would give the Board a better understanding.

Question #5 – Knowledge of Zoning. Bryan Baugh stated it was yes as the expansions have increased business/opportunities and increased customers.

Question #6 – Other Options – Their answer is no. Doug Blackburn stated they already have the solution with previous variances. Tom Anslow added they have thousands of square feet under roof.

Question #7 – Spirit & Intent. – Their answer is yes with minimal effects. Tom Anslow stated that the Board should be mindful of need versus want as it relates to spirit and intent. Other options might exist to solve this proposal. They have a lot of space under roof.

Sandra Erwin asked Mr. Wehenkel if they know they have three open variances. Mr. Wehenkel stated he was pretty sure they have full knowledge of the previous variances. Both Mr. Connors and Mr. Shelly are aware of the three open variances. He reiterated the fact that he would doubt they would give any of those variances back..

Bryan Baugh closed the discussion. He requested a motion to approve, deny, or table the request. Dale VanLerberghe reiterated his comments about tabling which would give the applicant the opportunity to mark the site for the Board understanding of the proposal., A motion that does not pass creates the need for a reapplication by the applicant. If that is a moot point, so be it. Mr. Sommer’s concern is about working in the dead of winter. Tom Anslow stated whether it is tabled or denied, it will be next month in either case. If it is approved they are golden. Otherwise, they reapply. Tabling does not speed up the process, just save them $250.00.

Bryan Baugh asked for a motion to table the request. Mr. Anslow asked if the Board has to ability to take a straw vote. Mr. Wehenkel stated No, No, No. Mr. Anslow stated three no’s must mean no. Mr. Wehenkel stated you only vote on a motion on the floor. Otherwise there is no voting. Mr. VanLerberghe stated otherwise it is discussion.

Doug Blackburn stated that Mr. Sommer indicated they have not crunched their numbers yet. It might be better to have it marked out in the field and be able to see it. There is no doubt parking spots are being lost. Maybe, there can be a discussion concerning other options by Mr. Sommer and his group. He believes there are other options and tabling the request might be the better way to handle it.

Tom Anslow added that it would be nice to have parking delineated, but based upon past history, what they say just doesn’t happen. There seems to be several pages in the file where they tell us one thing and it might not be so and so far we have not been able to come to a remedy on the previous problems.

Doug Blackburn moved to table the application. Bryan Baugh asked for a second to the motion to table. No Board member seconded the motion. The motion to table died for the lack of a second.

Bryan Baugh looked for a motion to approve or deny case # 543693 as submitted. Tom Anslow moved to approved 543693 as presented, stated, and drawn. Jack Devore seconded the motion. A vote on the motion was taken with all Board members voting no except Doug Blackburn who abstained from the voting. Mr. Baugh stated the request is denied.

A general discussion followed concerning the Boater’s Point situation and future public hearings. Bryan Baugh asked for a motion to approve the minutes from the October 14, 2011 meeting. Jack Devore moved to approve the minutes. Tom Anslow seconded the motion. The motion passed and the minutes were approved.

Dale VanLerberghe moved to adjourn the meeting. Doug Blackburn seconded the motion. The motion passed and the meeting was adjourned at 8:32 p.m.


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