Minutes: September 9th, 2015


September 9, 2015

David & Teresa Farrand
Lee Short
Dwight & Barbara Roll
Joseph Williamson
Jack Hilbert
Austin Irving
Jonathan Downing
Kathryn Dale
Robert Pierce
John & Elizabeth Volchko
Tim Volchko
Diane Belden
Matt Montowski

Chairman Bryan Baugh called the meeting to order at 7:00 p.m. The Pledge of Allegiance was recited. Board members were introduced by Chairman Bryan Baugh and included: Sandy Erwin, Jack Zeigler, Jack DeVore and Doug Blackburn. Alternate members introduced were Shelly Stively and Tim McKenna. Mr. Baugh then introduced Walter Wehenkel, Township Zoning Inspector, and Matt Montowski, Township Trustee. Mr. Baugh read through the procedure to be followed for the meeting. He asked if there were any questions regarding the procedure by those in attendance. There were none.

Mr. Baugh requested a motion to remove case #668184 from the table. Jack Devore so moved. Jack Zeigler seconded the motion. The motion passed. Mr. Baugh asked if any member had a conflict of interest concerning this case. There were none.

Mr. Baugh stated the testimony for this case was heard at the August 12, 2015 Board of Zoning Appeals hearing. At that time, the hearing was closed to the public. There was some discussion previously about possible negotiations occurring between the adjoining property owner and the applicant concerning the proposal. Mr. Baugh asked Mr. Short and Mr. Irving if there was anything new to report on that possibility. Both Mr. Short and Mr. Irving answered no to the question.

Mr. Baugh stated that the Board would allow new, and he stressed new, testimony that was not previously offered at the August 12, 2015 public hearing. He asked that individuals not repeat what was previously offered and limit their new testimony to three minutes. Mr. Baugh clarified so that there was no confusion, he would swear individuals in again this evening if they wished to offer new testimony. He asked for any new testimony.

Austin Irving introduced himself and was sworn in by Mr. Baugh. Mr. Irving wanted to confirm that the Board members received correspondence from him in the last day or so. All Board members indicated they had received the correspondence. Mr. Irving stated he believed the correspondence contained new issues for the Board to consider. He stated the application was incomplete and that alone was grounds for denial. He further stated the proposal does not comply with the Kenykirk Subdivision rules and regulations and for this Board to approve the request would be unjust. He stated his memo identifies that the request clearly does not qualify for a variance. The property is not any thinner than the other lots in the subdivision. There is nothing peculiar with this lot. Most of the lots are long and thin. And lastly, the twenty percent rule concerning expansion of a non-conforming building, he believes, will be looked favorably upon by the court.

Mr. Irving stated that if you look at these factors, along the Board’s own application where only one factor is met with six factors not being met, and you have someone who is not satisfied with the Board granting the variance, in combination with the application issues, he believed that was grounds for denial. Mr. Baugh thanked Mr. Irving for his comments.

Mr. Baugh asked the Board members if they had a chance to review Mr. Irving’s latest correspondence (attached as Exhibit 3). All Board members responded that they had reviewed the correspondence. Mr. Baugh asked if there was any additional testimony from the applicant. Mr. Short stated he had none. Mr. Baugh closed the public hearing portion of the meeting for this case.

Mr. DeVore stated, after reviewing the case, he saw nothing that is outstanding concerning the request. The part that they say is non-conforming, he believes is conforming. Mr. Blackburn stated he kind of agreed with Mr. DeVore’s comments. Being consistent throughout the township, he would consider it conforming. Mr. Zeigler stated he had nothing to add except that he agreed with the previous Board members comments. Sandra Erwin stated she agreed, and stated that if the non-conforming issue is thrown out as the use being discussed is conforming to our rules and the zoning book, it eliminates all of those arguments.

Mr. Baugh asked if there were any deliberations necessary. The Board members did not believe so. Mr. Baugh stated the Board would consider the Finding of Fact. Mr. Baugh reminded the Board members to consider the applicant’s responses, those comments offered by Mr. Irving in his letter, those comments offered by Ms. Dale in her presentation, as well as the information each of them obtained during their site visit in responding to each question. With that in mind, he asked the secretary to read the Finding of Fact questions.

Sandra Erwin read each question on the Finding of Fact. To question #1, all members voted yes. To questions #2, #3, and #4, all members voted no. The questions #5, #6, and #7 all members voted yes.

Mr. Baugh asked for a motion to approve case #668184 as submitted. Jack DeVore moved to approve case #668184 as presented. Doug Blackburn seconded the motion. Mr. Baugh reminded the Board members - yes to approve, no to deny. Upon roll call vote, all members voted yes in favor of the motion. Mr. Baugh stated to the Roll’s that their variance request had been approved.

Mr. Baugh stated the members of the audience could stay for their next case or could leave quietly. Walter Wehenkel asked Mr. Baugh for a few minutes to catch up on his note taking before the Board moved onto the next case.

Mr. Hilbert asked if the minutes would be approved now or later in the meeting. Chairman Baugh stated it would be the last item on the agenda. Mr. Wehenkel stated the Board could move the approval up on the agenda if they desired to do so. Mr. Baugh stated no changes to the agenda would occur. The Board would proceed as it normally does.

Case #668193 - Elizabeth Volchko, Trustee

Chairman Baugh requested Sandra Erwin read the case information. The request is to allow an area variance being requested by Elizabeth Volchko, Trustee, for property at 5542 Helmsman Drive and also known as Sub lot 161 of Johnsons Landing Subdivision C in Catawba Island Township. The property is zoned “R-3”. The request would allow an area variance from the required side yard setback for an accessory building. The required side yard setback is 5 feet and the request is for a reduction to 25 inches. A rear yard setback from the five foot requirement will also be required.

The applicant applied for and received a zoning permit to build the accessory building. When it was completed, the neighbor challenged if it was properly located. The property was surveyed and the lot line location was found to be different than originally thought by the applicant, and the accessory building was built too close to the side and rear lot lines. She concluded that all fees have been paid, proper notification given, and that there was no notarized correspondence.

Mr. Baugh asked if any Board member had a conflict of interest. There were none. Mr. Baugh asked who was present to discuss the request. Tim Volchko introduced himself and was sworn in by Mr. Baugh.

Mr. Volchko stated the building is an existing pole barn. It was built with zoning and building permits. The fundamental error that occurred was that the barn was built in line with the existing home and other accessory buildings on the street. The guidance was that if you line it up with the other buildings, it would be okay, and that is what was done. That was found not to be correct. The house was built first, and then the five foot side setback was adopted. The house has been there for fifty years.

Mr. Baugh asked if the survey was done before or after the construction. Mr. Volchko stated it was done after the neighbor raised the issue. When the permits were applied for, the information shared was that a survey was not required. Mr. Volchko stated that the township said to keep it in line with the house. Jack DeVore asked when it was built. Mr. Volchko stated it was built in the fall of 2014 with the concrete floor completed in 2015. Bryan Baugh asked for clarification on the survey. Mr. Volchko stated the township said it was not required, but after the issue was raised, it was suggested that one be done.

Mr. Zeigler asked Mr. Wehenkel if there was a variance requested at the time the zoning permit was issued. Mr. Wehenkel stated no variance was requested at that time. Mrs. Volchko submitted a zoning permit application that showed the house five feet off the side lot line. The accessory building was lined up with the house. Mr. Zeigler asked about the rear setback issue. Mr. Wehenkel stated the applicant lined it up with the other accessory buildings and it was also shown to be at five feet. It was later determined that there was a misunderstanding of a land transfer that occurred years ago. Mr. Wehenkel stated he was told the existing house was too close to the property line when it was built. The owner purchased land from the neighbor to make it right. The present owner believed the purchase was a five foot strip of land. In reality, it appears the purchase was only a two foot strip of land. Mr. Volchko agreed that it was their understanding over the years that the house was five feet from the lot line.

Mr. Baugh stated the accessory building appears to be closer to the rear lot line as well based upon the flags and pins that were visible on the site and in a memo from Mr. Wehenkel. Mr. Wehenkel stated that based upon the survey information, the accessory building is only three feet off of the lot line. Mr. Volchko stated he would like to amend his application to include not only the requested side yard setback, but a rear yard setback from five feet to three feet. The Board accepted the amendment. There were no further questions of Mr. Volchko.

Mr. Baugh asked for other testimony. David Farrand introduced himself as the adjoining lot owner to the west and was sworn in by Mr. Baugh. Mr. Farrand shared some photographs with the Board showing the building, property line and his property. He stated the building could be moved to the east twenty feet and it would not create any issues from the side lot line. Mr. Farrand argued that the setback from the road should be thirty-five feet. He was told that when he built his house. The lot has frontage on two roads. The setback is thirty-five feet off each road. He stated he did not believe any of the other accessory buildings were that close to the road. Mr. Farrand showed a picture of an old lot pin and a picture of the new survey stake. He stated the applicant should have known where the lot corner was located. The pin has been there since the early 1980’s.

Mr. Farrand stated when he called to complain he told the zoning inspector he could show him the pins. The zoning inspector stated they had to have a survey done. He stated it could have saved them money and the results are the same.

Mr. Farrand then discussed the existing home and its gutter. He stated it is about two inches off of the property line. Mr. Farrand stated there needs to be gutters installed on the new accessory building as his driveway is wet and muddy. Mr. Volchko stated they plan to put gutters onto the building, but they were waiting for the outcome of the variance request being proceeding. Mr. Farrand concluded his comments by stating that the setback should be thirty-five feet and not five feet and he is concerned about drainage from the roof impacting his lot.

Mr. Baugh stated that Mr. Farrand had submitted numerous pictures and made some comments, but he wondered if he was opposed to the variance request. Mr. Farrand stated he was very much opposed to the request. They had dirt on my lot when they first built it. The dirt has been removed, but it is always wet. It hems in their yard and the view from the kitchen is impacted. He felt it was pretty inconsiderate to place it there. When he put his shed in, he put it in the middle of his yard so that he did not block any views.

Mr. Baugh swore in Teresa Farrand. Ms. Farrand stated they have been neighbors for many years and have had no issues with the Volchkos. She stated she was very upset this spring when she came up and saw the accessory building. Once they put on the gutters, the gutters will be hanging over their property line. Their driveway is wet and muddy now. Ms. Farrand stated she felt it had to be five feet from the lot line. Their view is gone, and she just feels bad that they need to be going through this process.

Ms. Farrand stated maybe the Volchkos were misled as to where they could put the building. There was just a total disregard for the neighbors by building it where they did. She stated her lot is already smaller than the other lots because her father sold the Volchkos two feet of land to them to make their house legal.

Mr. Zeigler asked the Farrands if they were aware that the construction of the barn was occurring. Mr. Farrand stated they do not come up in the wintertime. After they put up their boat in October, they did not come back up. Mr. Zeigler asked what Mr. Farrand would like to see happen. Mr. Farrand stated he would like to see the building moved over off of the lot line. They have plenty of land to move it over. It would be easy to do. They could install another door and have a drive through type situation.

Mr. Blackburn asked a question of the Farrands. He wondered if their concern was the location of the building to the lot line or the view. He noted that if they moved it to the east, the view would still be impacted. Mr. Farrand stated that would depend upon whether the five foot setback or thirty-five foot setback is applied. If they wanted to move it back twenty feet that would be okay. Mr. Farrand asked if there was an exception to the thirty-five foot setback.
Mr. Blackburn stated the setback being looked at is for an accessory building and not a principal building. Mr. Farrand referenced item 4 in the “R-3” zoning district requirements. If they want to move it to twenty or twenty-five feet and the Farrands would have some view, then that might be a good solution.

There being no additional testimony or questions, Chairman Baugh closed the hearing to the public. Mr. Farrand questioned why the thirty-five foot setback was not being enforced. Mr. Wehenkel stated that the setback Mr. Farrand stipulated was for the main building. The Township’s policy has always been to allow accessory buildings behind the home in the rear of the lot, even if he rear of the lot fronted on a road. Mr. Wehenkel stated that was how the other structures in the rear of the lots were previously permitted to go in and the Volchko’s structure was treated no differently than those other accessory buildings. Mr. Farrand stated they are more than five feet. Mr. Wehenkel stated the other structures were not required to meet the thirty-five foot setback that Mr. Farrand is indicating.

Mrs. Erwin noted that no matter what the outcome of the decision, gutters need to be placed onto the building. That is a large surface to be drained. Mr. Baugh stated the Board should consider the Finding of Fact. Mrs. Erwin stated she had another question. She wondered how easy it would be to move the structure. Mr. Baugh asked what direction. Mrs. Erwin did not care what direction just if it could be easily done. Mr. Volchko stated there are eight by eight support beams into the ground. It is difficult to move a pole barn. Mr. Farrand countered and stated he felt it could be moved over by cutting the eight by eight posts and securing them to a concrete pad with anchors. Mr. Farrand stated that would be the easiest and cheapest method.

Mrs. Erwin read the Finding of Fact questions. The Board all stated yes to question #1. Four board members voted yes to question #2 with one member saying no. There were three yes votes to question #3 and 2 no votes. All of the Board members voted no to question #4. There were two no votes and three yes votes to question #5. There were four yes votes and one no vote to question #6. All Board members voted yes to question #7.

Mr. Baugh requested a motion for case #668193. Doug Blackburn moved to approve case
#668193 with a 37 inch rear yard setback and a 25 inch side yard setback with the condition that gutters and downspouts being installed to take the roof water to the road. Sandra Erwin seconded the motion. The motion passed.

Approval of Minutes

Mr. Baugh stated he had provided to Mr. Wehenkel this evening, a number of minor clerical corrections like misspellings and punctuation to be made to the minutes. Mr. Wehenkel stated he would make those corrections. Doug Blackburn moved to approve the minutes with the clerical corrections. Jack Zeigler seconded the motion. The motion was passed and the minutes approved as corrected.


Sandra Erwin moved to adjourn the meeting. Jack Zeigler seconded her motion. The meeting was adjourned at 7:43 p.m.


___________________________ ________________________________
Bryan Baugh, Chairman Sandra Erwin, Secretary