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CITY OF MUSKEGON
ZONING BOARD OF APPEALS
REGULAR MEETING
MINUTES
February 13, 2007
Chairman R. Hilt called the meeting to order at 4:02 p.m. and roll was taken.
MEMBERS PRESENT: R. Hilt, E. Fordham S. Brock, K. Davis, C. Kufta
MEMBERS ABSENT: L. Gomez-Payne, excused; J. Clingman-Scott
STAFF PRESENT: M. Cameron, L. Anguilm, D. Leafers
OTHERS PRESENT: C. Kelly, Parmenter O’Toole; D. Nord, Rhoades Engineering; D.
Henry, Facilities VP for Trinity Continuing Care. Novi MI
APPROVAL OF MINUTES
A motion that the minutes of the regular meeting of December 12, 2006 be approved was made
by E. Fordham, supported by K. Davis and unanimously approved.
ELECTION OF OFFICERS
A motion to nominate R. Hilt for Chairman was made by C. Kufta, supported by K. Davis and
unanimously approved.
A motion to nominate E. Fordham for Vice-Chairman was made by S. Brock, supported by K.
Davis and unanimously approved.
PUBLIC HEARINGS
Hearing Case 2007-001: Request for a variance from Section 2331:Landscaping, Fencing, Walls,
Screens and Lighting, to allow installation of wall-mounted fluorescent emergency lighting,
where the light would not be contained to the development site and the light would be directly
visible from beyond the boundary of the site. This request is for the property known as McAuley
Place and located at 1380 E. Sherman Blvd, by David Nord of Rhoades Engineering Co. LLC on
behalf of McAuley Place. M. Cameron presented the staff report. The property owner is Trinity
Continuing Care Services, dba McAuley Place. The zoning is MC, Medical Care, and it is
currently a nursing home facility. The zoning of adjacent parcels in the City’s jurisdiction are all
MC, Medical Care. The variance request by the applicant is being made because the proposed
lighting will be in violation of the lighting section of the Zoning Ordinance, particularly Section
2331 items 20(a) 20(c) and 20(e). Item 20(a) requires lighting to be confined to the site, item
20(c) requires that the light sources or light lenses are not directly visible from beyond the
boundary of the site, and item 20(e) requires that light sources be either high-pressure sodium or
halogen. Staff agrees with these assessments but believes that the request should include item
20(d) because the fixtures would not be down-type having 100% cut-off. The suggested motion
Zoning Board of Appeals Minutes –02/13/07 1
will reflect this additional item. This request is a result of an inspection and subsequent finding
of deficiency by the Department of Health and Human Services (HHS). Upon inspection HHS
found that the facility did not meet the updated requirements of the National Fire Protection
Association (NFPA) 101 Life Safety Code. The applicant states they are required to provide
emergency illumination on the building exterior to 50 feet from the entrance. During staff’s
research of the code it does not appear to require the lighting to be building-mounted. While
making the site inspection, it appears lighting could be provided by means of down-type fixtures
mounted on poles and using 100% down-type lighting with cut-off techniques. This type of
lighting would meet both our ordinance requirements and the needs of the facility. A site plan
has not been provided by the applicant to indicate placement or numbers of fixtures to be used,
but the applicant states in an e-mail to staff: “We intend to place the new lighting fixtures at the
roof edge near each entrance and "shine" them outward from the building as required to meet the
50'-0" requirement. The fixtures (please refer to the previously-attached fixture cuts) will be
equipped with top and/or full shield hoods to prohibit stray light above the horizon, since it is not
purposeful for the application there is no need to waste lighting in those areas.” The application
indicates that the specification sheet is “typical”. Staff does not know if the lights to be used will
be as specified on the included specification sheet. The conditions of approval, if adopted, should
require the use of this fixture or a comparable alternative. Staff has visited the site and the
included pictures show the points of ingress/egress to the facility. The area directly north of the
facility is wooded and not currently developed, the area to the east is facing the drive or main
entrance to the Mercy Hospital Campus, and the property directly west is the new Shoreline
Ophthalmology building. The applicant has indicated that the lights in question will be used
only in an emergency lighting situation and will be on with generator power during a power
outage to the facility, but not during normal operations. The applicant has indicated that the
proposed lighting will be shielded. If the correct shields are used and the fixture is mounted
properly, there should be no light above the horizontal plane of the fixture. Staff has not
received any comments on this case.
D. Nord stated that the lighting would only be used in an emergency or power outage, and was
not intended to come on frequently. He thought it would be beneficial to neighboring properties
in an emergency situation, not detrimental. E. Fordham asked why there was no site plan. D.
Nord stated that they did not want to spend the funds on it yet if the variance were to be denied.
E. Fordham asked if the applicant knew how many emergencies or power outages had occurred
in the last few years. D. Henry stated that, due to the way the electrical grid is set up, they rarely
have power outages. However, because they have patients on life support, they are required to
have the emergency lighting at entrances/exits for the benefit of patients and emergency
personnel. K. Davis asked if there was any reason to use this particular lighting, besides
economics, since it didn’t meet zoning ordinance requirements. D. Henry stated that there were
specific federal requirements regarding the type of lighting to be used, and these fixtures met
those requirements. K. Davis asked if there was any way to baffle the lighting to reduce spill.
D. Nord stated that there were shields on top of the fixtures to accomplish that.
A motion to close the public hearing was made by S. Brock, supported by E. Fordham and
unanimously approved.
C. Kufta believed that the variance request had merit. For safety reasons, it made sense to have
the additional lighting. The following findings of fact were offered: that there are exceptional or
extraordinary circumstances or conditions applying to the property in question or to the intended
use of the property that do not apply generally to other properties or class of uses in the same
zoning district, that such dimensional variance is necessary for the preservation and enjoyment of
Zoning Board of Appeals Minutes –02/13/07 2
a substantial property right possessed by other properties in the same zoning district and in the
vicinity, that the authorizing of such dimensional variance will not be of substantial detriment to
adjacent property and will not materially impair the purposes of this chapter or the public
interest, that the alleged difficulty is caused by the Ordinance and has not been created by any
person presently having an interest in the property, or by any previous owner, that the alleged
difficulty is not founded solely upon the opportunity to make the property more profitable or to
reduce expense to the owner, and that the requested variance is the minimum action required to
eliminate the difficulty.
A motion that the variance request to allow installation of wall-mounted emergency fluorescent
lighting, not in full compliance with Section 2331, be approved, subject to the conditions that 1)
the additions to the property must be complete within one year (Sec. 2504) or the variance is
void, 2) the variance is recorded with the deed to keep record of it in the future, 3) fixtures are
located only at current ingress and egress locations of the building, 4) an acceptable site plan
indicating the number of fixtures and locations, along with a fixture specification sheet, are
provided for zoning staff approvals prior to application for permits, and fixtures to be used must
have the same specifications as submitted with the application, 5) the lights are operational only
for short-term testing or during power outages, and 6) the lights are shielded and mounted in
such a fashion as to prevent light rays at angles above the horizontal plane of the fixture, was
made by C. Kufta, supported by S. Brock and unanimously approved.
OLD BUSINESS
Tabled Case 2006-020 Request for a variance from Section 2331 Landscaping, Fencing, Walls,
Screens and Lighting, to allow building accent lighting that shines onto the building above the
horizontal plane at 601 Terrace St., by Christopher Kelly of the Parmenter O'Toole law firm. M.
Cameron presented the staff report again, for the benefit of members who were not present when
the case was originally presented. The subject property is located in a Planned Unit Development
with an underlying zoning of B-3, Central Business. The adjoining property to the northwest is a
residential development currently under construction, Muskegon Lake is to the north, and there
is vacant property to the south. This request is the result of enforcement action taken when the
lights were discovered on site by the electrical inspector, and it was brought to the attention of
zoning staff that they were not compliant with our ordinance. The lighting in question was not
part of the approved site plan for the development or even shown on the original site plan. The
lights were installed without proper approvals from the Zoning Administrator as required in the
Zoning Ordinance. In July 2004 during the initial site plan review, staff made the following
remarks, "Please label lighting fixtures. They need to be a down type having 100% cut-off".
While this site plan was submitted before the ordinance language changed, the building wash
lighting was not part of the plans. When the final site plans were submitted for review in March
of 2005 the fixtures in question were not part of the final site plan review either. When the final
site plan was submitted for review in March 2005 the parking lot lighting was labeled and
fixtures were shown as 100% cut-off fixtures as had been requested by staff, but the accent
lighting was still not shown on the site plan. Because the site plan did not show any wall wash-
style lighting, staff could not further advise the applicants of the requirements regarding down
type 100% cut-off lighting. The following statement was included with the site plan approval, "If
any changes are made to the site plan at any time after this approval letter has been received,
you must submit a new site plan, showing changes, to the Planning Dept., for re-approval". This
is used to advise all applicants of the need to resubmit changes for approvals. Staff feels that the
proposed lighting will cause direct light spill into the sky. Only a portion of the lights in place
can actually be aimed in a fashion that will not directly contaminate the night sky above, but
Zoning Board of Appeals Minutes –02/13/07 3
these style fixtures still shine above the horizontal plane (illustration 3) and could still pollute the
night sky to some degree. The remainder of the lights, while minimally baffled (illustration 1),
are shining directly vertical into the sky. Staff feels the intent of this ordinance language is very
clear and had revised the language to make it as clear as possible to be certain that everyone
could reasonably know that the language applied to all outside lighting before submitting it to the
Planning and City Commissions. Both bodies in charge of drafting and approving the zoning
ordinance have had the opportunity to review the ordinance language regarding outdoor lighting
and have determined that outdoor lighting of any kind is not to be allowed above the horizontal
plane and that fixtures should be down-type with 100% cut-off. Staff has the following
comments regarding page two of the application: Question 1: Staff does not agree that the
proposed lighting will not spill light into the sky, and in fact feels some of the fixtures will direct
a significant portion of their light directly into the sky. Question 2: We agree that there are many
examples of light pollution in the city, but there have been no cases that staff is aware of since
our ordinance update, where lights are not the type required by ordinance. It should be noted
however, that the lights along Western that are mentioned by the applicant do not fall under the
jurisdiction of the Zoning Ordinance. Nevertheless, the city has taken measures to ensure that
they are night sky-friendly lighting, and in fact no direct light is allowed to shine upward from
the fixture itself. Staff looked at the fixtures in the early morning and found that they do not emit
any light above the horizontal plane of the fixture and because of the refractors installed in the
lights they are a down-type fixture. They would not be considered a 100% cut-off fixture
because the light does go out on a horizontal pattern, which is the intent of the lighting, but their
scope is limited due to special shielding in the fixtures. I have attached the bid specifications for
the Western Avenue lighting showing the night sky requirements. Question 3: Staff is concerned
with the impact that building wash-style lighting will have on the quality of life for residents of
the new residential condominium directly adjacent to the parking lot of the applicants.
Additionally, while the applicant is a member of the city attorneys' law firm, staff does not
necessarily agree with their interpretations of our ordinance. The remaining comments are all
somewhat repetitive regarding the intent of our ordinance, and various comments regarding the
fixtures themselves that staff has commented on previously. Staff is of the opinion that the
building could still be easily washed with 100% downward light with the use of wall pack-style
lighting. This style lighting can be easily mounted to the walls near the top of the structure,
where the fixtures are easily accessible to wire in a finished building, and staff feels they would
look aesthetically pleasing. I have included a pamphlet with examples of that type of lighting.
Staff would also agree that the top of the building could be considered the horizontal plane, if the
light fixture had been a wall pack design mounted at the top of the wall. Staff has included an
example specification packet on the type of lighting that is acceptable for building wall wash
applications. Staff received one comment on this case when it was originally heard by the ZBA.
D. Harjer owned the adjoining residential development and was in favor of the request.
R. Hilt stated that the lights were already in place and the design seemed to allow for some
control over where the light shone. He suggested a provisional approval of the variance, pending
ZBA review of the lighting after the fixtures were operational. He suggested giving the
applicants time to get the lights working and properly adjusted, then have the ZBA members go
to the site and view the lights. He saw no reason to deny the request if the lights performed as
Mr. Kelly described. K. Davis stated that would be acceptable to him if the light was measured
with a light meter, but he still thought there would be light spill. S. Brock stated that he had
talked to experts in this area and was told that the fixtures in place were some of the most
controllable, as far as where the light shone. K. Davis stated that light aimed at a wall would still
reflect upward. S. Brock asked C. Kelly why the improper lighting was installed. C. Kelly stated
Zoning Board of Appeals Minutes –02/13/07 4
that it was an error on their part. They hadn’t intended to have this type of lighting when they
did the site plan originally. They did include the lighting in their building plans, but forgot to go
back and change the site plan.
A motion to approve the variance request with the conditions that 1) the additions to the property
must be complete within one year (Sec. 2504) or the variance is void, 2) site plan approvals are
received, 3) the applicant has the lights operational within 45 days so that 4) the ZBA will
observe the lighting at the site to see that it conforms to the ordinance requirements to the ZBA’s
satisfaction, and 5) the ZBA Chairman will be the one to determine compliance, was made by C.
Kufta, supported by E. Fordham and unanimously approved, with discussion continuing on the
motion.
K. Davis asked who would provide the equipment to monitor the light, and who was the source
of information stating that the light would not spill into the night sky. R. Hilt stated that the
manufacturer stated that the light could be controlled. K. Davis still didn’t think the light could
be contained once it hit the wall. M. Cameron stated that there was more to the variance request
than where the light pointed. It also shone above the horizontal plane. C. Kufta stated that he
still wasn’t sure that he agreed with the definition of the horizontal plane. E. Fordham stated that
he was an electrical engineer, but not a lighting expert. He suggested that it be the responsibility
of the applicant to supply the expert. S. Brock asked the applicant if he would be willing to do
that. C. Kelly stated that he would.
OTHER
C. Kufta – This is board member C. Kufta’s last meeting. R. Hilt and M. Cameron thanked him
for his service on the ZBA. R. Hilt asked if he could meet once more regarding the above case,
since he was on the board at the time the determination was made and conditions were set. K.
Davis stated that the new board member would still need to be included also.
2006 ZBA Cases – M. Cameron distributed a list of completed ZBA cases from 2006 and
thanked the board members for their extra efforts this past year.
There being no further business, the meeting was adjourned at 5:15 p.m.
dml
2/13/07
Zoning Board of Appeals Minutes –02/13/07 5
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