Questions: ZBA-03-2015 - 1024 & 1026 S. Main, ZBA-04-2015 - 316 W. May
Sent: Tuesday, March 24, 2015 6:24 PM
To: building@mt-pleasant.org
Cc: manager@mt-pleasant.org; planning@mt-pleasant.org
Context:
316 West May Street
"Applicant is requesting a finding on a non-conforming use under Section 154.007"
"Zoning: M-2, Multiple Family Residential"
"the parcel is currently zoned correctly for its use"
Proposed - demolish existing non-family residential rental, construct non-family residential rental
Reviewer: Brian Kench, Building Official, Board Secretary
1026 & 1024 S. Main Street
"Applicant is requesting a finding on a non-conforming use, under section 154.007"
"Zoning: M-2, Multiple Family Residential"
Proposed - demolish existing non-family residential rental, construct non-family residential rental
Reviewer: Brian Kench, Building Official, Board Secretary
154.007-B (5) Change of use. A nonconforming use may be changed to a new nonconforming use if the Zoning Board of Appeals finds that the new use would markedly decrease the degree of nonconformance and would enhance the desirability of adjacent conforming uses. Where no structural alterations requiring a building permit are involved, a nonconforming use may be converted to a similar non conforming use of a basic character and intensity.
___________________________________________________________________
154.007(A) Nonconforming lots. Any lot existing at the time of adoption of this chapter that fails to comply with the minimum requirements of this chapter may be used for a permitted use provided it is in single ownership and that at least 90% of each yard requirement is complied with.
154.007(B)(3) Nonconformance of yards. A conforming use which does not meet the area, yard or height standards of this chapter may be altered or enlarged provided there is no increase in the specific nonconformity. Landscape and parking standards must be met.
154.007(B)(4) Nonconforming uses discontinued. If a nonconforming use is discontinued ... This division shall not be construed to permit the continuance of prior nonconforming use.
154.007(B)(6) Nonconforming use destroyed. A building which has been damaged by fire or other cause to the extent of more than 50% of its replacement value must be repaired or rebuilt in conformity with the provisions of this chapter unless the Zoning Board of Appeals finds that the redevelopment of the site represents a marked decrease in the specific nonconformance per §154.007(B)(4), and there is an equivalent use.
154.163(1), 154.164(A) The secretary or designee of the Board shall serve a copy of the appeal to the city official, board or commission whose decision is being appealed.
154.169 (A) ... the Planning Commission is empowered to review site plans before any building or structure is erected or structurally altered in all Multiple-Family Residential, Commercial and Industrial Districts.
154.169(D) Decisions conditionally approving or rejecting the site plans shall be based upon standards and requirements contained in the Zoning Ordinances.
154.171(B)(5) A use for which a special use permit has been granted shall be considered a conforming use in the district in which the property is located,
- Reviewer (Building Official) is not empowered to review site plans in Multiple-Family Residential Districts.
- Review indicates Use of the sites, existing and proposed, is conforming ("zoned correctly for its use").
- Review indicates building will be damaged to the extent of more than 50% of its value (demolish existing).
- Review indicates structural alterations requiring a building permit are involved (new construction).
- Review indicates Use of the sites will not change, existing and proposed non-family residential rental.
- Review indicates decisions are based on standards and requirements not found in the zoning ordinances.
Questions:
Which Charter and/or Ordinance provision authorizes the ZBA to conduct these "findings"?
What is the relevance of 154.007 when the existing Use is conforming?
What is the relevance of 154.007-B (5) when there is no change of Use?
Which city official, board or commission was served a copy of the Application to the Zoning Board of Appeals?
Thank you in advance,
From: Kench, Brian<bkench@mt-pleasant.org> Fri, Mar 27, 2015 at 3:48 PM
Cc: "Ridley, Nancy"<NRIDLEY@mt-pleasant.org>, "Mrdeza, William"<wmrdeza@mt-pleasant.org>, "Kain, Jacob"<jkain@mt-pleasant.org>
Good Afternoon Mr. Nims
I appreciate your concerns regarding the redevelopment that is being proposed at 316 West May Street. It appears from your email that you are familiar with the process that is being used by the ZBA under the authority granted to them under section 154.007. The approval of the site plan and special use permit is authorized by the Planning Commission once a finding is made on the new nonconforming use. I suspect the process is very similar to the one that was followed during your time on the Planning Commission. Feel free to give me a call or stop by my office should you have further questions.
Questions from your email....
● Which Charter and/or Ordinance provision authorizes the ZBA to conduct these "findings"?
The Michigan Zoning Enabling Act (125.3208 Section 208) and section 154.007 of the zoning ordinance.
● What is the relevance of 154.007 when the existing Use is conforming?
A single family dwelling (permitted use) in the M-2 District is considered a conforming use based on average lot conditions found in the district. Section 154.007 (A) would allow any permitted use to be placed on a nonconforming parcel. Also a single family home has less restrictive parking standards. Rooming Dwelling and RSO Dwellings, which are regulated under a special use permit on the same parcel (as described for a single family home) are considered nonconforming based on average occupancy rates in the district, building area, parking standards, etc.. Those uses would be subject to review standards outlined in section 154.007 where change in the current use are proposed prior to filing an application to the Planning Commission for site plan approval and a special Use Permit. It is only when the Special Use Permit is granted, that section 154.171B considers the use as conforming.
154.007 NONCONFORMING LOTS AND USES.
(A) Nonconforming lots. Any lot existing at the time of adoption of this chapter that fails to comply with the minimum requirements of this chapter may be used for a permitted use provided it is in single ownership and that at least 90% of each yard requirement is complied with.
● What is the relevance of 154.007-B (5) when there is no change of Use?
Any change in the configuration of a nonconforming RD or RSO (Regulated by Special Use Permit in the M2 District) is considered a "change in use" on the property and requires approval before the Zoning Board of Appeals under section 154.007 B5.
154.003 NONCONFORMING USE.
Any property use which does not comply with the regulations of this chapter or subsequent amendments at the time of adoption.
154.007 B(5) Change of use. A nonconforming use may be changed to a new nonconforming use if the Zoning Board of Appeals finds that the new use would markedly decrease the degree of nonconformance and would enhance the desirability of adjacent conforming uses. Where no structural alterations requiring a building permit are involved, a similar nonconforming use may be converted to a similar nonconforming use of a basic character and intensity.
● Which city official, board or commission was served a copy of the Application to the Zoning Board of Appeals?
The application was submitted in accordance with section 154.164 as required under section 154.007.
Have a nice weekend!
Brian Kench
Building Official
Community Services Division
320 West Broadway Street
Mt. Pleasant, MI 48858
Phone (989) 779-5301
Email: bkench@mt-pleasant.org
Website: http://www.mt-pleasant.org/
Sent: Sunday, March 29, 2015 5:58 PM
To: Kench, Brian <bkench@mt-pleasant.org>
Cc: "Ridley, Nancy"<NRIDLEY@mt-pleasant.org>, "Mrdeza, William"<wmrdeza@mt-pleasant.org>, "Kain, Jacob"<jkain@mt-pleasant.org>
Brian - Thank you for responding. I apologize for my previous lack of specificity, please indulge restatement of the questions. Previous responses are enclosed in quotation marks.
First Question -
Which MZEA Section 208/City Code 154.007 provisions authorize consideration of applications for variance based on other than terms and conditions established in the zoning ordinance (i.e. based on standards and procedures adopted by the ZBA and PC)?
"The Michigan Zoning Enabling Act (125.3208 Section 208) and section 154.007 of the zoning ordinance."
MZEA 125.3208 Nonconforming uses or structures, Section 208:
(1) Continue lawfully existing use of a dwelling, building, or structure or of the land.
(2) Change of use or structure based on terms and conditions in the zoning ordinance.
(3) Acquisition for the removal of nonconforming uses and structures.
(4) Elimination of nonconforming uses and structures declared public purpose and use.
City Code 154.007 NONCONFORMING LOTS AND USES:
(A) Continue permitted uses for existing lots.
(B)(1) Continue lawfully existing buildings, structures or uses.
(B)(2) Continue lawfully existing uses of premises or structures.
(B)(3) Change of dimensional nonconformities - conforming use.
(B)(4) Change of buildings, structures or uses - nonconforming use discontinued.
(B)(5) Substitution of nonconforming uses - nonconforming use ongoing.
(B)(6) Change of buildings, structures or uses - nonconforming use destroyed.
(B)(7) Restoration and repair of a buildings or nonconforming uses.
(B)(8) Acquisition for the removal of nonconforming uses and structures.
Second and Third Questions -
Given:
- Differing standards and requirements amongst the eight categories of Dwelling Use.
- Disregard of 154.171(B)(5) with respect to existing category 4 and 6 property uses.
- Complete demolition of existing category 3, 4 and 6 Dwellings.
- Construction of new category 4 and 6 Dwellings on lots located in a M-2 zoning district.
- Applications to the Zoning Board of Appeals do not include requests for use variance.
- Principal uses permitted in M-2 zoning districts include Dwelling category 1, 3, 4 and 6 property uses.
Which state/local statute provisions authorize conformance determination based on other than standards and requirements contained in the zoning ordinance (i.e. Dwelling category 1 - conformance based on average lot conditions; Dwelling categories 4 and 6 - conformance based on average occupancy rates)?
"A single family dwelling (permitted use) in the M-2 District is considered a conforming use based on average lot conditions found in the district. Rooming Dwelling and RSO Dwellings are considered nonconforming based on average occupancy rates in the district, building area, parking standards, etc...”
Which state/local statute provisions authorize change of use determination based on other than the principal use of a lot or structure (i.e. any change in the configuration of a nonconforming RD or RSO)?
Which state/local statute provisions authorize new nonconforming uses in the absence of a use variance approved by the ZBA (i.e. applications for variance do not include a request for use variance)?
"Any change in the configuration of a nonconforming RD or RSO (Regulated by Special Use Permit in the M2 District) is considered a "change in use" on the property and requires approval before the Zoning Board of Appeals under section 154.007 B5."
City Code 154.003 DEFINISIONS:
NONCONFORMING BUILDING. Any building which does not comply with the regulations of this chapter or subsequent amendments at the time of adoption.
NONCONFORMING USE. Any property use which does not comply with the regulations of this chapter or subsequent amendments at the time of adoption.
USE. The purpose for which land or a building is arranged, designed, occupied or intended.
DWELLING. A building used in whole or part for human habitation. Category:
(1) Dwelling, One-Family
(3) Dwelling, Multiple-Family
(4) Dwelling, Rooming
(6) Dwelling, Registered Student Organization
PRINCIPAL OR MAIN USE. The primary or predominant use of a lot or structure.
City Code 154.054 M-2 MULTIPLE FAMILY RESIDENTIAL DISTRICTS.
(B) Principal uses permitted.
(1) All uses permitted and as regulated in the M-1 Multiple-Family Residential District.
(C) Principal uses permitted subject to special use permits.
(1) Registered student organization dwellings.
(2) Rooming and boarding house, tourist house.
City Code 154.171(B)(5) A use for which a special use permit has been granted shall be considered a conforming use in the district in which the property is located, provided the permit was issued in conformity with the provisions of this chapter and all conditions required by the Commission have been complied with and maintained.
Fourth Question -
Which city official, board or commission was served a copy of the application for variance?
"The application was submitted in accordance with section 154.164 as required under section 154.007."
City Code 154.164(A) Applications for a variance shall be submitted and served in the same manner as provided for appeals.
City Code 154.163(A) Appeals.
(1)The secretary or designee of the Board shall serve a copy of the appeal to the city official, board or commission whose decision is being appealed.
Thanks again,
From: Kench, Brian<bkench@mt-pleasant.org> Tue, Apr 7, 2015 at 12:06 PM
Cc: "Ridley, Nancy"<NRIDLEY@mt-pleasant.org>, "Mrdeza, William"<wmrdeza@mt-pleasant.org>, "Kain, Jacob"<jkain@mt-pleasant.org>
Good Afternoon,
Sorry for the delay in my response. Your line of questing is a bit confusing ... . I would suggest that you stop by my office so that we may discuss your concerns.
Have a great week!
Brian Kench
Building Official
Community Services Division
320 West Broadway Street
Mt. Pleasant, MI 48858
Phone (989) 779-5301
Email: bkench@mt-pleasant.org
Website: http://www.mt-pleasant.org/
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