MARION TOWNSHIP

               ZONING BOARD OF APPEALS 

                                  Tuesday September 7, 2004

MEMBERS PRESENT:     John Lowe, Larry Fillinger, Linda Manson-Dempsey, Dan Lowe, and

                                       Dan Rossbach

MEMBERS ABSENT:                 None

OTHERS PRESENT:                  Mike Kehoe, Township Attorney

Annette McNamara , Zoning Administrator

Phil Westmoreland, OHM, Township Engineer

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CALL TO ORDER

John Lowe called the meeting to order at 7:34 p.m.  

APPROVAL OF AGENDA

John Lowe asked to have the agenda item for Updating Zoning Board of Appeals Rules & Procedures just prior to

the last Call to the Public.  Larry Fillinger motioned to approve the agenda as amended.  Dan Rossbach seconded. 

Motion carried 5-0.

MEMBERS PRESENT

The members of the Zoning Board of Appeals introduced themselves. 

CALL TO THE PUBLIC

None.

APPROVAL OF MINUTES

Zoning Board of Appeals, August 16, 2004

Larry Fillinger motioned to approve the minutes as amended.  Linda Manson-Dempsey seconded. 

Motion carried 5-0.

OLD BUSINESS

ZBA Case #4-04— Jesse Drive

Dan Depner from Boss Engineering, representing Ray Ward, reviewed the history of this application. The

applicant has been to the Planning Commission a couple of times over the past few months.  This item was

tabled at the last ZBA meeting.  The Planning Commission made recommendations for the variances being

requested.  As a result of that meeting, the plans changed slightly from what was originally submitted.  The

change deals with one particular variance for the centerline radius of the road. At the last Planning Commission

meeting, the township engineer suggested increasing the radius in the interest of public safety.  The radius has

been increased to 100 feet, and an approval letter from the MDEQ has been received.  This is the first variance

request. The second variance request is for the maximum length of the private road.  The ordinance allows a

maximum length of 2,000 feet.  Jesse Drive is approximately 2380 feet.  The Planning Commission asked if it

were to recommend this variance to the ZBA, what the applicant would be willing to give up in return.  The

compromise reached at the Planning Commission meeting was to include restrictions in the private road

maintenance agreement that would allow only 22 units to access the private road. The third variance being

requested is on the western property line.  The 66’ road easement follows the boundary line, where there are

a significant amount of wetlands.  The applicant attempted to follow an existing two-track through the area to

minimize the impact on wetlands.  The ordinance calls for a 25-foot buffer along the side and rear development

boundaries.  The total length of the variance requested is approximately 175 feet. The fourth variance is for the

frontage on parcel 5.  The ordinance calls for 150 feet of frontage, and parcel 5 has approximately 90 feet due

to the natural features of the site. Kristen Lundeen from OHM indicated the revised site plan was reviewed last

week.  No additional items were found. Mike Kehoe said the ordinance requires that for variance requests that

deal with construction standards, the Planning Commission makes a recommendation on those variances. 

Likewise, on the road construction standards such as length and radius, the Planning Commission made

recommendations in regard to restrictions.  The ZBA has the power and the authority to establish conditions. 

The ZBA can adopt the restrictions as recommended by the Planning Commission, or the ZBA can alter them

as it feels is appropriate.  Linda Manson-Dempsey asked if this recommendation indicates that the Planning

Commission is okay with this.  Mr. Kehoe said yes.  In regard to Mr. Kehoe’s September 7 review letter,

Ms. Manson-Dempsey asked what “…no further parcel splits or lots would be added after station 20+00.” 

John Lowe said it means after the curve of the radius, there will be no further development.  Mr. Kehoe

suggested that the recorded survey and restrictions should incorporate language that states there will be no

more than the number of parcels shown on the drawing, and no further splits past the cul-de-sac. Mr. Kehoe

said he doesn’t like the idea of parcel 2 being bisected by the road.  While the ordinance doesn’t specifically

prohibit this, he feels it would be contrary to the intent of the ordinance.  Dan Lowe asked if the applicant ever

 applied to have the road run straight through the center so that the radius was 230 feet.  Dan Depner said the

 impact on the wetlands would be too great, although he wasn’t certain whether it had been applied for. 

Mr. Ward said it probably wasn’t because Tom Kolhoff from the MDEQ said he wanted the two-track to be

followed as closely as possible.  Mr. Ward said he worked diligently with the MDEQ for over a year to get the

 permit.  Dan Lowe said if the road was straighter, it would eliminate the variance request for the radius and

lot 2 would be all one piece.  John Lowe asked if the change from 50 feet to 100 feet had a change in the

impact to the wetlands.  Mr. Depner said they were fortunate in that respect.  John Lowe said if that change

doesn’t impact the wetlands, maybe more than 100 feet wouldn’t impact the wetlands either.  He is concerned

about setting a precedent.  Ms. Manson-Dempsey said the ZBA reviews requests on a case-by-case basis. 

Mr. Depner said he could submit a drawing to Tom Kolhoff, but based on previous conversations, he believes

Mr. Kolhoff wouldn’t approve it.   Dan Lowe said the point is the ZBA doesn’t know that it can’t be done at

 the 235-foot radius, so the ZBA is being asked to grant a variance for something it doesn’t know can’t be

done.  Mr. Ward said he walked the property with Mr. Kolhoff and he was adamant about minimizing the

impact to the wetlands.  Mr. Ward said the plan as presented only impacts about 40-50% of the wetlands.

Mr. Depner said page 4 of the construction drawings shows the area of wetlands impacted.  John Lowe asked

Phil Westmoreland if he thought there was a possibility that the MDEQ would be willing to allow more.

Mr. Westmoreland said possibly, although he can understand why Mr. Kolhoff wanted the road to go where

it is.  He was trying to minimize the impact to the wetlands and not create a small pocket of wetlands.  From a

safety perspective, the 100 feet seems okay.  Mr. Westmoreland explained the calculations used to determine

the necessary radius.  With proper signage, he doesn’t feel that safety is an issue.  Mr. Westmoreland said from

 a conservative design engineer’s perspective, he tries to minimize wetlands impact whenever possible. 

Larry Fillinger asked Mr. Westmoreland how much more he feels the MDEQ might consider allowing.

Mr. Westmoreland said possibly 125-150 foot radius.  John Lowe asked Mike Kehoe if using the standards

for public roads relieves the township from potential lawsuits if there’s an accident, using Hidden Valley Road

as an example.  Mr. Kehoe said you’re never able to insulate against lawsuits.  Mr. Kehoe said if there’s a

well-reasoned decision for deviating from the standards, there might not be any liability, but it would depend

on the facts of the particular situation.  Dan Lowe said that’s exactly why the ZBA should have a denial from

the MDEQ on the 235-foot radius before granting this variance.  Dan Rossbach asked if it would be possible

to eliminate lot 2 by moving boundary lines to achieve 150-foot frontage.  Ms. Manson-Dempsey asked if lot 5

 is designed as a flag lot.  John Lowe said no, it’s a standard lot with 90 feet of frontage.  Dan Lowe said if lot 2

were eliminated and moved the boundaries, it would eliminate the variance request for lot 5.  Ms.

Manson-Dempsey said lot 2 is 2.35 acres—how many acres are in the unbuildable area?  Mr. Depner said it

 looks like it’s approximately 50/50.  Mr. Rossbach asked again if the applicant had considered eliminating

lot 2 and moving the property lines.  Mr. Ward said if he considered that option, would the township still say

the road has to be run 235-foot radius through the wetlands.  Dan Lowe said at the very least, the township

needs documentation showing MDEQ denied the request.  Mr. Ward said he could provide proof of how

he’s worked with the MDEQ without actually having to go back and submit all over again.  The Planning

Commission asked for a 100-foot radius, now the ZBA is asking to eliminate a lot to prevent the road from

bisecting it.  Mr. Ward said he would consider that even though he will lose a lot.  He said they have done

everything possible with the MDEQ.  John Lowe said again that he would like to know the maximum the

MDEQ will allow.  Mr. Depner confirmed that Mr. Ward would not be opposed to eliminating the bisected

lot to increase the frontage on lot 5. The Planning Commission has not given final approval for this project.

If the ZBA were to grant the variances, the Planning Commission would still have to grant final approval.

Mr. Ward said he’s done everything the Planning Commission asked, and now the ZBA wants something

different.  Mr. Depner said the problem with the process is they were never allowed to submit the site plan to

the township until an MDEQ permit was issued.  If they could have worked with the township and the MDEQ

concurrently, a lot of time could have been saved. Ms. Manson-Dempsey asked if there are other options

available for this property, such as site condos.  Mr. Kehoe said that’s a possible, but they would still have to

 comply with the private road standards because that’s how the property is accessed.  That would change the

lot sizes to a minimum of one acre.  Ms. Manson-Dempsey asked Mr. Kehoe his opinion on setting a precedent.

Mr. Kehoe said it’s on a case-by-case basis, although someone could argue based on what’s been done in this

case. 

Art Mohr, 3012 Sanitorium:  Mr. Mohr said he sat through the Planning Commission meeting. He listened to

John Lowe moderating the meeting and referring over and over again about not wanting to set a precedent.

At the end of the meeting, Mr. Ward was essentially given a checklist of items to comply with that would make

this acceptable to the Planning Commission.  Mr. Mohr was stunned at the “lackadaisical” process used to

arrive at 22 lots—it was like a poker game.  Mr. Ward has complied with the Planning Commission’s

requirement of 100 feet.  John Lowe said he may have met the Planning Commission’s recommendations,

but this is the Zoning Board of Appeals. Dan Lowe said the township was sued on a very similar matter. 

Linda Manson-Dempsey said the township has hired an expert; it should follow his advice.  Dan Lowe said it

was a case where the township deviated from the Livingston County Road Commission’s standards. Larry

Fillinger asked Mr. Ward how much time he would need to reconfigure the lot sizes and obtain a letter from the

MDEQ.  Mr. Ward said he could certainly have it by the next Planning Commission meeting.  Mr. Depner said

the lot sizes could be changed in a day’s time. Dan Depner asked if, in the meantime, they could go back to the

Planning Commission for final site plan approval contingent upon the variances being granted.  Mr. Kehoe said

that seems reasonable. David Bittner, attorney representing Ray Ward, said there’s no reason the ZBA couldn’t

make the variances conditional on receiving a letter from the MDEQ stating the maximum allowed.  Mr. Kehoe

said there’s only about two weeks between the Planning Commission and ZBA meetings.  Annette McNamara

said the next Planning Commission meeting is September 28 and the next ZBA meeting is October 4. 

Motion

Larry Fillinger motioned to table ZBA Case #4-04—Jesse Drive until the October 4, 2004 ZBA meeting, allowing Ray

Ward time to obtain a letter from the MDEQ stating it will not allow 230-foot radius on the road and to advise the

township on the maximum radius the MDEQ will allow, and to allow time to reconfigure lots to reduce the variance

request on lot #5 and to eliminate the bisected parcel.  Linda Manson-Dempsey seconded.  Motion carried 5-0.

NEW BUSINESS

ZBA Case #6-04—Family Golf

Bill Fulkerson from Family Golf was present to request a variance on the height requirement.  Mr. Fulkerson provided

an aerial view of the site.  John Lowe asked about changing the location of the building on the site plan to 100 feet

from the property line.  Mr. Fulkerson indicated he would work with Advantage Engineering.   John Lowe asked

Mike Kehoe if, as part of the height variance from 35 feet to 65 feet, the ZBA could stipulate that the isolation

distance from the lot line has to be 100 feet or 120 feet?  Mr. Kehoe said yes.  Annette McNamara reminded the

ZBA that Mr. Fulkerson would still have to make a presentation to the Planning Commission. 

Linda Manson-Dempsey addressed Section 5.05 C, items 1-6:

1. How the strict enforcement of the provisions of the township’s zoning ordinance would cause an unnecessary

hardship and deprive the owner of rights enjoyed by all other property owners owning property within the same zoning

district. Ms. Manson-Dempsey said there is no unnecessary hardship in her opinion. Annette McNamara said this is

a use permitted by Special Use Permit in the Suburban Residential (SR) zoning district. 

2. The conditions and circumstances unique to the property, which are not similarly applicable to other

properties in the same zoning district.  Larry Fillinger said there are no other driving ranges in the vicinity, so the

circumstances are unique to this property.

3. The conditions and circumstances unique to the property were not self-created. John Lowe asked Mike Kehoe’s

opinion on this item. Mr. Kehoe said he doesn’t believe it’s self-created from the standpoint that it’s currently being used

as a golf range and he’s attempting to make it an all-season facility. 

4. Why the requested variance would not confer special privileges that are denied other properties similarly situated

in the same zoning district. Linda Manson-Dempsey said that any property owner has the right to request a height

variance in the SR zoning district. 

5. Why the requested variance would not be contrary to the spirit and intent of this zoning ordinance.  Dan Lowe said

he believes the intent of the ordinance is for the health and safety in a residential building. John Lowe said there was a

Special Use Permit granted to allow the development of this driving range, which is adjacent to the expressway. 

This business is a buffer to the existing residential area, and this would allow the business to continue.

6. The difficulties shall not be deemed solely economic.  Dan Rossbach said the difficulties aren’t solely economic;

it’s a combination of things.  John Lowe said again that the height restriction was established for health and safety for

residential as opposed to commercial.  Dan Lowe said the establishment is a benefit to the township. Under the

circumstances, this request is less burdensome to the township than a high-density housing development.  This would

allow the property to continue as a viable recreation facility for the residents of the township.

Call to the Public

Leon Steely, 245 Foxfire:  Mr. Steely asked if the dome is closer to Peavy Road .  John Lowe asked Mr. Steely to

come up and take a look at the drawing, which shows it’s about as far away as you can get. 

Motion

Dan Rossbach motioned to approve ZBA Case #6-04—Family Golf to grant a 30 foot height variance to the

requirement in Section 7.10 of the zoning ordinance, from 35 feet to 65 feet, with the stipulation that the

air-supported dome be 100 feet from any property line and the finished floor elevation be no higher than 2 feet

lower than the southwest corner of the parking lot because the applicant has met the requirements of

Section 5.05 C, items 1-6.  Dan Lowe seconded.  Roll call vote:  Dan Rossbach—yes; Larry Fillinger—yes;

Linda Manson-Dempsey—no; John Lowe—yes; Dan Lowe—yes.  Motion carried 4-1.

ZBA RULES AND PROCEDURES

Larry Fillinger motioned to table this agenda item, and to place it at the end of the next meeting’s agenda. 

Linda Manson-Dempsey seconded.  Motion carried 5-0.

CALL TO THE PUBLIC

Art Mohr, 3012 Sanitorium:  Mr. Mohr had a question related to Northern Materials/San Marino’s operation of the

gravel pit.  Mr. Mohr asked if the ZBA knows, at this time, of any issues pending or being discussed to bring before the

ZBA concerning any zoning exceptions, provisions, changes, or different use of the property.  John Lowe said no.

Mr. Mohr asked if there’s any active discussion with either of the parties mentioned or their attorneys about bringing

forward any motions.  John Lowe said no. 

ADJOURNMENT

Linda Manson-Dempsey motioned to adjourn the meeting at 9:50 p.m.   Dan Rossbach seconded.  Motion carried 5-0.