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CITY OF MUSKEGON
ZONING BOARD OF APPEALS
REGULAR MEETING
MINUTES
December 12, 2006
Chairman R. Hilt called the meeting to order at 4:00 p.m. and roll was taken.
MEMBERS PRESENT: R. Hilt, J. Clingman-Scott, E. Fordham S. Brock, K. Davis, L.
Gomez-Payne
MEMBERS ABSENT: C. Kufta, excused
STAFF PRESENT: M. Cameron, L. Anguilm, D. Leafers
OTHERS PRESENT: C. Collins, 2937 Getty St; H. Puls, 2266 Crowley; M. Fuller, Prein
& Newhof; C. Kelley, 601 Terrace; D. Harjer, Vida Nova
APPROVAL OF MINUTES
A motion that the minutes of the regular meeting of November 16, 2006 be approved was made
by J. Clingman-Scott, supported by E. Fordham and unanimously approved.
PUBLIC HEARINGS
Hearing, Case 2006-017: Request for a variance from Section 404: Area and Bulk Requirements
and Table I Heights, Areas, and Yards, to reduce the required side setbacks for a single story
dwelling at 2270 Crowley St. from a total of 16 feet to a total of 15 feet, by Chris Collins. M.
Cameron presented the staff report. The zoning of this and the adjacent parcels is R-1, Single
Family Residential. This property has been determined to be a legal lot of record as shown on
the 1917 plat map for the Orchard Grove Addition, which was part of Muskegon Township until
the late sixties. Because the property was platted prior to the creation of our zoning ordinance,
the minimum lot size and frontage requirements do not apply and the lot is a legal non-
conforming lot. Any construction on a lot of this type must still meet all other zoning
requirements in effect since creation of the lot. Based on preliminary drawings provided by the
owner, it appears they will be able to meet the remaining zoning requirements. The current
ordinance standards require a home to be at least 24 feet wide or the average width of homes
within 600 feet in either direction. Additionally, structures must have a 12-inch overhang. This
effectively makes the minimum width of the structure from drip edge to drip edge 26 feet. The
homes in the immediate vicinity are a mixture of design styles and sizes ranging from ranch
styles to small homes built by the City of Muskegon under the Turnkey program in the late
1960's. Staff has received no comments on this case.
C. Collins stated that this lot was the same size as many of the lots on this block, and that a house
would improve the lot. S. Brock asked if the lot had always been vacant. C. Collins stated that it
had as far as he knew. H. Puls lived adjacent to this property and was opposed to the variance.
He was concerned about fire safety and that it may adversely affect on his property values. He
Zoning Board of Appeals Minutes –12/12/06 1
asked if he would be able to rebuild if his house were to be destroyed more than 75%. R. Hilt
stated that this case would have no effect on that. Mr. Puls would have to go through this same
process. E. Fordham stated that, as a realtor, he did not think that one foot difference in the
setback would have a negative effect on neighboring property values. J. Clingman-Scott asked if
other houses in the area met the setbacks. M. Cameron stated that many of the properties in the
area were fenced so it was difficult to say, but he thought that many were in this same situation
because of the history of the area.
A motion to close the public hearing was made by J. Clingman-Scott, supported by K. Davis and
unanimously approved.
K. Davis stated that because this was a legal lot of record, there should be some flexibility with
the ordinance to avoid having another unbuildable lot. This was a common situation in this area.
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 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 findings of fact determined by the Zoning Board of Appeals be adopted and
that the variance request to reduce the required side setbacks for a single story structure from a
total of 16 feet to a total of 14 feet 11 inches, be approved subject to the conditions that the
additions to the property must be complete within one year (Sec. 2504) or the variance is void,
and that the building complies with the fire safety code, was made by J. Clingman-Scott,
supported by K. Davis and unanimously approved.
Hearing, Case 2006-018: Request for a variance from Section 2331 Landscaping, Fencing,
Walls, Screens and Lighting, to allow barbed wire atop a fence at 559 E. Western Avenue, by
Mike Fuller of Prein & Newhof, for Verplank Dock Company. M. Cameron presented the staff
report. The zoning of the subject property is WM, Waterfront Marine and its current use is
aggregate storage and underground utility contractor. The owners are requesting a variance to
leave 3 strands of barbed wire on the fence as it presently exists. The zoning of adjacent parcels
is WM, Waterfront Marine with the exception of Fisherman's Landing which is OSC, Open
Space Recreation. This variance request is the result of an enforcement action taken after a
complaint was received by staff that a new fence was being placed on the property and that it had
barbed wire on top of it. Staff went to the site to find Vallier Fence Company working on the
fence with barbed wire on top. When the staff of the fence company was questioned, they stated
that the old fence had been taken down as a precaution during construction in the area. Since the
fence company staff was performing minor adjustments only and the fence was already erected,
city staff did not order them to stop work. All work performed up to this point had been done
without benefit of permits or site plan review by the Zoning Administrator and thus violated
zoning ordinance requirements. Had anyone contacted staff prior to beginning work, we could
Zoning Board of Appeals Minutes –12/12/06 2
have advised them of their grandfather right regarding the old fence that had been on site. Since
the old fence had barbed wire, it was a legal non-conforming structure until the fence was
removed. Once removed it could not be replaced. The applicant's variance application refers to
a letter from the Coast Guard. This letter is only an approval letter concerning the required
Facility Security Plan that the property owner created and was required to submit to the Coast
Guard. The letter from the Coast Guard is just their approval of that plan and is not a letter
regarding the use of barbed wire on the fence. This security plan is a requirement of the Code of
Federal Regulations Title 33--Navigation and Navigable Waters, Part 105. The letter also states
that the plan should be reviewed annually and that the property owner should submit any
amendments to the Coast Guard for re-approval. This process could be used to indicate to the
Coast Guard that there would no longer be barbed wire on top of the fence in question. If the
Coast Guard then required barbed wire, it seems likely they would send correspondence to that
effect and a variance request would seem more pertinent. The applicant states that the area is a
secured dock and must meet certain minimum standards and that the standards include 3-strand
barbed wire. Staff has reviewed Part 105 and cannot find any requirements for barbed wire on
top of fences. Staff also inspected the newly constructed passenger car ferry dock that must
comply with the same rules and it was found that there is no barbed wire used on that site. The
federal requirements appear to require the property owner to provide means to restrict access to
and from the site but the rules do not appear to dictate the exact means to do this. In research for
this variance it has been found that there is a wide variety of security measures that appear
acceptable to the Coast Guard for port security. These range from electronic methods to multiple
fences inside of each other. Staff even found references to the use of an outward curved style
fence that makes it very difficult to climb. The various security levels known as MARSEC
levels that are in effect at a port location also dictate the scope of further security precautions in
effect on a site at any given time. A review of these elevated security levels does not reveal any
increased fencing requirements such as barbed wire but instead mandates among other things,
increasing perimeter patrols. Even in areas that are designated as restricted areas, staff cannot
find any requirements for barbed wire fencing. Staff surveyed adjacent properties in the area
from Shoreline Drive and East Western to the opposite end of East Western and found that there
existed only one property left that has retained a portion of fence with barbed wire. All other
properties, as shown in the provided photos, have complied with the ordinance and put up fences
without barbed wire. During the survey of local fences it was found that the property in question
has allowed a large portion of its fence to fall into disrepair and that substantial portions of the
fence on the same property no longer have barbed wire on top of them. In fact, one section of
fence is at best only four feet high above grade due to changes in grade since the fence had been
erected. This same section of fence has substantial plant growth allowing easy access over the
top. These conditions appear to have been in place at the time of Coast Guard approval of the
Facility Security Plan. Staff has received no comments on this case.
M. Fuller stated that the barbed wire fence was removed when the County put in the sewer in the
area. They weren’t aware that they would not be allowed to put the fence back up. E. Fordham
asked if they would be putting up the same fence that was taken down. M. Fuller stated that it
was the same type of fence. It was determined that the fencing was new, and not the same
material that had been taken down. R. Hilt asked why there needed to be barbed wire on this
section, when there were shorter overgrown sections that could be easily climbed. M. Fuller
stated that he wasn’t sure, since he was just there representing the County. L. Gomez-Payne
asked how much of the fence was replaced. M. Cameron stated that it was the entire length
along Western Avenue. M. Fuller stated that the fence had been removed due to a county sewer
project and they just wanted to be able to replace it.
Zoning Board of Appeals Minutes –12/12/06 3
A motion to close the public hearing was made by J. Clingman-Scott, supported by K. Davis and
unanimously approved.
J. Clingman-Scott stated that she didn’t see anything wrong with the ordinance, the neighboring
properties didn’t have barbed wire, and the Coast Guard was not requiring it, so she could not
see a reason to approve the variance.
A motion to deny the request for a variance to allow barbed wire atop a fence at 559 E. Western
Avenue, was made by J. Clingman-Scott and supported by K. Davis with discussion continuing
on the motion.
S. Brock asked if the new sewer was put in at the request of the property owner. M. Cameron
stated that it was a public service project done by the County. J. Clingman-Scott stated that the
County should have to comply with City ordinances also. K. Davis agreed. He stated that while
the City wanted to protect the shoreline business owners, it also wanted to have a welcoming
shoreline. He stated that the ferry dock didn’t have barbed wire, and he didn’t see a need for it in
this case. R. Hilt asked who would pay for the fence. M. Fuller stated that the County would. S.
Brock thought that they should be allowed to replace the fence as requested, since the County
had it removed. E. Fordham stated that it was unfortunate that the problem was caused by
another governmental unit.
A vote was taken on the motion to deny the variance, which was approved, with S. Brock voting
nay.
Hearing Case 2006-019: Request for interpretation of Section 2331(20) Landscaping, Fencing,
Walls, Screens and Lighting, regarding the 100% percent cut off of lighting fixture requirements
at 601 Terrace Street by Christopher Kelley, Parmenter O'Toole Law Firm. M. Cameron
presented the staff report. Staff inadvertently accepted this case due to it being turned in just a
few hours prior to the advertising deadline for the Muskegon Chronicle. Had staff had sufficient
time to review the case and pertinent ordinance language, staff would not have placed this case
on the agenda. Language in the zoning ordinance under Section 2503 that governs this states: In
the absence of a ZBA rule to the contrary, an appeal or application for interpretation to the ZBA
shall be taken by delivery to the Zoning Administrator on or before thirty (30) days after the
Zoning Administrator’s written decision has been delivered to the applicant. The Zoning
Administrator delivered her opinion to Mr. Kelley on September 12, 2006 via e-mail. Staff’s
concern regarding the timeliness of this appeal goes beyond this case and its merits, to the
precedence of hearing appeals that are clearly after the allowed date. Staff had never been
advised that an appeal of the administrator's opinion was an option the applicant intended to
pursue and if we had, we certainly would have advised the applicant of the dates for such appeal.
Staff feels that the Zoning Board of Appeals should decide whether to hear this case given the
circumstances before proceeding with this report. If the decision were made not to hear the case
due to exceeding the time limit for appeal, the applicant's variance request would still be heard
by the ZBA.
J. Clingman-Scott stated that she didn’t see anything that would mitigate the facts. A motion that
the ZBA not hear this case due to exceeding the time limit for appeal was made by K. Davis and
supported by J. Clingman-Scott, with discussion following.
Zoning Board of Appeals Minutes –12/12/06 4
R. Hilt wanted to clarify that this case was a request for interpretation of Section 2331. M.
Cameron stated that was correct. R. Hilt stated that he wasn’t sure the ZBA had the authority to
interpret that language.
A vote was taken on the motion not to hear the case, which was unanimously approved.
Hearing Case 2006-020: Request for a variance from Section 2331(20) Landscaping, Fencing,
Walls, Screens and Lighting to allow lighting that is not down-type having 100% cut off and
emits light above the horizontal plane of the fixture, at 601 Terrace Street by Christopher Kelley,
Parmenter O'Toole Law Firm. M. Cameron presented the staff report. The applicant is
requesting to illuminate their building through the use of in-ground lighting. The subject property
is located in a Planned Unit Development with an underlying zoning of B-2, Convenience and
Comparison 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 a part of the approved site
plan for the development or even shown on the original site plan, and 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% cutoff". 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. 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 approval. 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
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 Commission and City Commission. 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% cutoff.
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 Avenue that are mentioned by the
applicant do not fall under the jurisdiction of the Zoning Ordinance. Nevertheless, the city has
Zoning Board of Appeals Minutes –12/12/06 5
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% cutoff 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 Ave. 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 condominiums directly adjacent to the parking lot of the
applicants. Additionally, while the applicant is a staff member of the city attorneys' law firm,
City 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 has not received any comments on this case.
C. Kelley from Parmenter O’Toole stated that the light fixtures had adjustable domes on them
that could be adjusted so that no light would spill over the top of their building. They originally
didn’t have the lights in their plans, but as they started working they realized how dark the area
was. They amended their building plans, but it was an oversight on their part not to amend their
site plan also. He stated that even though the lights did not point downward, they could be
adjusted to do that, and he believed that the lights satisfied the City ordinance because they could
be adjusted to comply. He stated that the lighting was also a safety issue, as there are no street
lights in the Edison Landing development. Other buildings in the area were lit up, with the only
difference being that those buildings had awnings where lights could be affixed. He agreed with
the dark sky concept, but felt that could be accomplished with their existing lights. S. Brock
asked if those lights had ever been on. C. Kelley stated that they had not. They were wired, but
not connected yet. S. Brock asked if these were the same lights that Hackley Hospital had. M.
Cameron stated that they were not. S. Brock asked if staff could check out where the lights
shined when they were turned on. M. Cameron stated that the issue was that they were shining
above the horizontal plane. R. Hilt asked if there had been any discussion on where the
horizontal plane was. M. Cameron stated that it was at the fixture. S. Brock stated that no in-
ground lighting would be able to meet the ordinance then. M. Cameron stated that was correct.
R. Hilt asked if staff would be able to monitor the lighting to see that it was properly adjusted.
M. Cameron stated that the City did not have the staff to police it. C. Kelley didn’t believe that
City ordinance specified the horizontal plane as that of the fixture. He thought that it should be
the top of the building. D. Harjer was the developer of the neighboring residential development.
He was in favor of the variance for aesthetic and security reasons, as long as the light didn’t
shine above the top of the Parmenter building.
A motion to close the public hearing was made by K. Davis, supported by E. Fordham and
unanimously approved.
Zoning Board of Appeals Minutes –12/12/06 6
K. Davis stated that there was another way to accomplish what the applicant wanted to do,
without using the ground lights. Had that been on the site plan, staff could have made them
aware of the regulations. E. Fordham had been to the site at night and agreed that it was very
dark. If the lights could be aimed so that they didn’t pollute the sky, he had no problem with it.
J. Clingman-Scott believed that the building should be lit, but that there were other ways to
accomplish that. R. Hilt stated that if the light could be directed, it shouldn’t matter if the
fixtures were high or low, especially if the horizontal plane was not clearly defined in the
ordinance. He stated that if the applicant had equipment that could comply with ordinance
requirements, that should be considered. J. Clingman-Scott stated that the Hackley Hospital case
was very specific that the horizontal plane was from the fixture. E. Fordham asked if there was
anything in writing stating what the horizontal plane was. R. Hilt stated that that was not part of
the determination on that case.
A motion to deny the variance request to allow lighting that is not down-type having 100% cut
off and emits light above the horizontal plane of the fixture, was made by J. Clingman-Scott and
supported by K. Davis. The motion failed on a tie vote, with S. Brock, R. Hilt, and E. Fordham
voting nay.
A motion to table this case until a full board is present for a vote was made by S. Brock,
supported by E. Fordham and approved, with K. Davis and J. Clingman-Scott voting nay. M.
Cameron stated that there were no cases for the January meeting, so this case would not be back
on the agenda until the February 2007 meeting.
OLD BUSINESS
None
OTHER
2007 ZBA Schedule M. Cameron stated that the application deadline for the ZBA was moved
back one day for the 2007 schedule, because of having to meet the Muskegon Chronicle’s
advertising deadlines.
There being no further business, the meeting was adjourned at 5:15 p.m.
dml
12/12/06
Zoning Board of Appeals Minutes –12/12/06 7
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