ZONING BOARD OF APPEALS
MARCH 3, 2003 @ 7:30 PM
MEMBERS PRESENT: John Lowe, Dan Rossbach, Dan Lowe, Linda Manson-Dempsey
and Larry Fillinger
Annette McNamara, Zoning Administrator
Robert Hanvey, Marion Township Supervisor
Mike Kehoe, Township Attorney
Larry Fillinger motioned to approve the agenda of March 3, 2003. Linda Manson-Dempsey seconded.
Larry Fillinger motioned to approve the minutes of February 3, 2003 as amended. Linda Manson-Dempsey seconded.
ZBA Case #1-03—Cesarz
Paul Burns, attorney for Russell Cesarz, is present with his client to request a variance. Mr. Burns then made a presentation that included
a plat of Log Cabin Park subdivision to the board for review, packets containing information in regard to a Michigan Supreme Court case
that he feels supports his client’s position, a survey, and other relevant documentation that he asked to be part of the record.
Mr. Burns’ client is asking for a variance to construct a residential dwelling on Lot 10. Mr. Burns’ legal research refers to a Supreme
Court case in which the exact ordinance language in the Marion Township ordinance appears in the Supreme Court case. In Mr. Burns’
opinion, the Michigan Supreme Court has essentially already ruled on the language. The court’s ruling was that the ordinance was
unconstitutional. The arguments before the court were twofold: one, the ordinance is unconstitutional on its face, because it amends
a plat without going through the plat procedures. Michigan law requires that if you’re going to change lot descriptions in a plat, you have
to go to the Circuit Court and get a court order to change the legal descriptions. The second aspect that was argued was that the
ordinance was discriminatory as applied to a particular individual. This subdivision was platted years ago. Some homes are built on
individual lots; some are built on multiple lots. Along the lakefront, virtually none of them meet the 18,000 sq ft. minimum required by the
ordinance. The ordinance states that if you have two lots together at the time of the adoption of the ordinance, you are required to combine
the lots into one lot, which in effect makes this building site one lot instead of two. It’s an amendment of the plat. It’s discriminatory
because there are people who have built on lots that are 50 feet, and if their home burned down, they could rebuild. If Mr. Cesarz had
bought only lot 10, he could build on it. Because he bought two lots, he loses a building site. It doesn’t change the character of the
neighborhood; it fits in completely with the neighborhood. The purpose of the ordinance is to maintain conformity. The setback
requirements, building code and septic requirement have been dealt with and will be adhered to. Mr. Burns’ position is that the ordinance
is illegal, unconstitutional, and discriminatory as applied
to Mr. Cesarz.
be adhered to? Mr. Cesarz explained the walkway is merely for access to the lake. Mr. Burns stated that the setback would be the
entire lot and the neighbor’s house doesn’t meet the 50-foot setback. Mr. Lowe stated that house is pre-existing. Mr. Lowe felt it would
require a variance. John Lowe asked about Livingston County Road Commission (LCRC) sight distance requirements. Mr. Cesarz stated
he could move the driveway to the top of the site if it was a problem in the current location. He also pointed out that he has a waiver from
the LCRC because they have no jurisdiction.
Roger Pashak, 825 Hurley (lots 54-55): Mr. Pashak feels he will be affected if this variance is granted. The ordinance stated it shouldn’t
solely for economic reasons. Mr.
Cesarz building three houses seems to be for economic reasons.
Jim Barnwell, 701 Pleasant Lake Rd: It was indicated a couple of times that this is the only lot affected. Ordinance was put in effect to
keep them to a minimum. This is not the only “zoning” lot affected. Several lots are over 20,000 square feet.Cedar Lake lots are
combined, Coon Lake lots are also combined for zoning purposes. You can’t take a lot that meets the requirements for the Existing
Residential Subdivision (ERS) district and make two non-conforming lots. There are many other lots that are combined that would fall
under this ruling. It sounds like they are trying to “try” a case here, and he doesn’t feel that this is the purpose of the Zoning Board of
Appeals (ZBA). The ZBA interprets the intent of the ordinance, not decide on the legality of it. By granting this variance, it takes a
conforming site and creates two non-conforming sites. It would add to congestion and change the character of the neighborhood and
Dan Strong, 771 Hurley (lots 19 and 37): Noted that he has been to the township and was told he cannot build. He applied for a
variance to put up a 24 x 20 garage and had to prove a hardship, and it took months before it was granted. The eight issues for granting a
have not been met. There are
two letters from attorneys that do not support the decision.
Dave Hamann, 870 Hurley (lots 61-65): He has a lot and a half adjacent to his house that he bought after he built his house. The lot and
a half are contiguous to his lots. They are lots that are part of ten grants of authorities to the corporation that has owned a minority of that
subdivision. Those lots have a grant against them, if the association issue is not resolved, he plans on selling them or putting a house up
at some time. He’s in a similar situation as Mr. Cesarz. Richter or Ridge Road, which runs across the front, in 1948 was closed,
abandoned by the owners on each side of that road. Therefore, when there’s an issue with building on those front lots, they have to be
tied to the middle lot in order to get egress off of Hurley Road, so that reduces the number of homes that you could have on the empty lots.
Back in 1975, a corporation was established for liability issues. There are only 10 properties. The 10 lots are still tied to that organization
via the grant of authority, but that corporation has no jurisdiction over the common areas, the common areas being the two walkways and
McCain, 883 Hurley Drive: States he doesn’t understand what this has to do with Mr.
Dave Hamann, 870 Hurley: Mr. Hamann clarified by stating that the township identified Section 19.02 as the issue that Mr. Cesarz has
to request a variance for. Section 19.02 is about contiguous lots and Mr. Hamann’s lots are contiguous. The 18,000 square feet isn’t
required if you meet the yard setbacks.
Strong, 771 Hurley: Read the section on “practical difficulty.”
Why are we having more conversation?
Paul Burns, attorney: He understands the argument that economics is not a reason to grant a variance. Mr. Cesarz is building a house
to make a living, because that’s what he does. What we’re saying is, compare your ordinance to the Supreme Court case and the
ordinance is worded almost exactly the same, the Supreme Court ruled that the ordinance is unreasonable and arbitrary. His position is
that the ordinance is illegal. It confiscates the economic value of Mr. Cesarz’s property. This plat was designed back in the 1900s for
each lot to be a building site.
If Mr. Cesarz had only bought one lot, he would be allowed to build.
This is discriminatory.
Dan Lowe stated the builder in the Supreme Court case bought the lot before the ordinance changed. Mr. Cesarz bought after the
ordinance changed.Mr. Burns said the ordinance does not distinguish as to when he bought the lot. The ordinance takes a snapshot of the
time the ordinance passed.
McCann, 883 Hurley Drive: Can the attorney for the township respond?
Mr. Lowe said after the Call to the Public.
Mark Price, 721 Richter (lots 41-43): He’s having a hard time with taking someone’s entire lot and using it as a setback for a walkway.
He has three lots and wants to know if he would have to sell them separately or together. John Lowe stated the lot sizes are 40 feet,
feet, and 35 feet x 150 feet deep, which totals 16,500 square feet, appears
to be one lot under the ordinance.
Roger Pashak , 825 Hurley (lots 13-14, 54-55): John asked Mr. Kehoe about the fire issue, would they be allowed to rebuild if it burned
down. Mr. Kehoe
said it depends on the circumstances, if they do not change the footprint or
meet the setback requirements.
John Lowe asked Mr. Barnwell if the issues referenced in his letter had been addressed. Mr. Kehoe asked if Mr. Barnwell would give the
drawings that he presented to the meeting.
Tom Klebba, 1615 Triangle Lake Road (lots 3-5 on Triangle Lake): Has 3 contiguous lots. If he bought the two on each side,
he would never be able to build on those lots because they don’t meet the 18,000 square feet. He does meet the setbacks. He feels it’s a
taking of property if Mr. Cesarz is not granted the variance. Mr. Klebba believes the planning consultant stated he should
be able to build.
Pashak, 825 Hurley:
Isn’t that why people buy big lots?
When you buy 10 acres and build on it, it’s to have some room.
feel it’s fair that Mr. Cesarz not be allowed to build.
There’s ample room to get through the road. If he wants to sell one
then he could.
(Close Call to Public)
John Lowe gave a synopsis of petition that had been submitted to the ZBA, which references specific sections of the ordinance. The petition
states the request for variance does not meet any of the criteria and would have an extremely negative effect on this subdivision and all
other subdivisions in the ERS district. It would result in further development of substandard lots in this subdivision and others. The petition
was signed by approximately 12-16 residents.
Mike Kehoe, Township Attorney: Disagrees with Mr. Burns about case, there are differences between the cases that are important.
Mr. Kehoe believes it is a factor that the zoning ordinance in the Supreme Court case was adopted after the property was purchased.
Mr. Kehoe stated, in regard to “unreasonableness and arbitrary”, it does say that particular section of the ordinance affected only a minute
portion of the city and the plaintiff might be the only persons prohibited from building on those lots. The language in the township’s zoning
ordinance is not unusual in dealing with substandard lots. Most townships in the county have ordinances with very similar language. The
ZBA should consider not only the affect in the decision that it makes as it relates to Mr. Cesarz’s property, but also consider other areas
of the subdivision. They should consider the affect on other areas of the township as well. When looking at the map of the sub, granting
this variance could result in similar variance requests and they would need to be dealt with accordingly. Although the law says consider
each on its own facts and merits, precedent is also considered. Section 19.02 says that if a lot doesn’t meet the minimum requirements
that the ordinance sets for area or width, but if that parcel was in effect at the time of the ordinance, assuming that yard dimensions,
setbacks, etc. can be conformed to, or if a variance is obtained, then they are entitled to build on that property. If you have two or more
that are substandard, the ordinance says you must combine to meet the requirements of the ordinance. For example, if Mr. Cesarz only
owned lots 10 and 11 and there was no house, he combines the two and still doesn’t meet the requirements. He would still be entitled to
The difference is for the person that only owns one lot.
John Lowe asked about criteria--since property was purchased when ordinance was in effect, is this considered self-created? Mr. Kehoe
said it is a factor—it could be a different situation if he
owned the lots before the ordinance was in effect.
In reference to ZBA Case #1-03 for Lots 10 and 11, the Board then reviewed each of the factors in Section 5.05 C in regard to whether a
variance should be granted and the specific findings for
Section 5.05 C items 1-8 are as follows:
1—No practical difficulty because it is solely economic to build on lots 10 and 11 based on purchasing the property after the ordinance
2—No, it has been demonstrated that this will be recurrent in nature and other lots are similar in nature. May be recurrent in many areas
within the township ERS district.
4—No, it could apply to other ERS districts in area.
5—No, because the variance will not be in harmony with the ordinance or in the surrounding areas. This could result in an increase in
traffic and the number of houses on the substandard road will
increase. There is one point of access.
6—The property is currently being used as the permitted
use, allowing reasonable use, not ultimate use.
8—Property owner is being permitted to use his property
similarly to adjacent homeowners; reasonable, measured use.
Dan Lowe motioned to deny ZBA Case #1-03—Cesarz for variance to Section 19.02 for lot 10 based upon the above findings that the
requirements of Section 5.05 C 1-8 have not been met. Larry Fillinger seconded. Roll call vote: Dan Lowe, Larry Fillinger,
Linda Manson-Dempsey, Dan Rossbach, John Lowe—all yes.
Motion carried 5-0.
ZBA Case #2-03—Hill
Mr. Hill is present to request a variance to Section 8.03 for a 13-foot variance to the 25-foot rear yard setback. The pool size has been
reduced from 15’ x 28’ to 12’ x 28’.
The developer does allow inground pools.
He presented drainage documentation from surveyors.
Call to Public
Kathleen Gawronski, 1219 Portsmouth Drive: Is he asking for a 50% reduction? Ms. Gawronski doesn’t see the practical difficulty
upon the owner; she does see it on herself. Adjacent lots to the Hill’s
are not sold yet and not developed.
John Lowe read letter dated 2/23/03 from “An Opposed Homeowner”, letter dated 3/3/03 from Michael and Kathleen Gawronski, and letter
dated 3/2/03 from Dr. and Mrs. Dennis Bandemer, Jr. Mr. Lowe also read a section from the Master Deed for
David Kovich, 1149 Hudson Drive: Although he doesn’t live near the Hills, the grade of most of the lots is similar. The characteristic of
clay that the homes are built on is a problem for drainage.
character. He does not want to
see any more variances be given on this type of lot.
(Close Call to the Public)
Dan Rossbach asked if Mr. Hill knows the dimensions of a lap pool. Mr. Hill stated that he has not considered a lap pool. He has had an
engineering company and the company that originally designed the lots in this neighborhood review his lot and plans. Mr. Hill would like to
know the minimum size that can be agreed upon.
Mr. Hill’s lot is 5940 square feet. Dan stated there are other larger size lots. Mr. Hill stated he picked this lot because it was flat and
he could easily put a pool on it. At the ZBA meeting for Mr. Hill’s previous variance request, the ZBA board found that items 1, 3, and 6
conformed; items 2, 5, and 7 did not.
Section 5.05 C, items 1-8 criteria:
1—Yes, there is a practical difficulty. A 12-foot pool requires 25-foot rear yard setback, lot is 39 foot and will not meet setback. Larger
lot was priced at a premium and largest model,
Stratford, was built on smaller lot.
2—No, this will be recurrent in nature throughout the
development. The lots are
similar in size and cannot have a pool placed upon them.
3—Cannot be determined. Practical difficulty met because the developer presented the lot as being able to place a pool on the lot.
However, the homeowner did not investigate the township
4—Cannot be determined.
This could set a precedent for other homeowners who would have the
5—No, because although he has reduced the size of the pool
to lessen the size of the variance, it is not in general harmony.
6—Yes, because it is a permitted use to have a pool, but is
not allowed because of the ordinance.
7—Yes, because he is at the minimum amount necessary to use
Larry Fillinger motioned to grant ZBA Case #2-03—Hill, to allow a 13-foot variance to the 25-foot rear yard setback, relaxing Section 8.03 F
C 3. The pool is to be placed 12 feet off the rear yard lot line, based on board discussion relating to Section 5.05 C, items 1-8.
Discussion on motion: Dan Lowe feels that this is unfair to the other residents and if this is allowed, there will be a problem with other
requests. John Lowe said each request is considered on an individual
CALL TO PUBLIC
Linda Manson-Dempsey asked how many ZBA cases are coming up? Is Mr. Ward coming back soon? Annette McNamara said she
didn’t think so. Ms. McNamara will send a letter to Mr. Ward one month prior to the six-month deadline. Mr. Castle asked for item to be
removed from the agenda tonight.
John Lowe said to put Mr. Castle on the April agenda and a decision
will be made then how to proceed.
Dan Rossbach motioned to adjourn at 9:35 p.m.
Linda Manson-Dempsey seconded. Motion
CALL TO ORDER:
APPROVAL OF AGENDA: MARCH 3, 2003
APPROVAL OF MINUTES: FEBRUARY 3, 2003
OLD BUSINESS: CASE # 1-03 - CESARZ
NEW BUSINESS: CASE # 2-03 - HILL
CALL TO THE PUBLIC: