CLAY TOWNSHIP PLANNNG COMMISSION

MINUTES OF MAY 28, 2014

Page 14

MINUTES OF THE CLAY TOWNSHIP PLANNING COMMISSION REGULAR MEETING HELD WEDNESDAY, MAY 28, 2014 - IN THE CLAY TOWNSHIP MEETING HALL, 4710 PTE. TREMBLE ROAD, CLAY TOWNSHIP, MICHIGAN 48001

1. CALL TO ORDER:

Chairman Antkowiak called the meeting to order at 7:34 p.m.

2. ROLL CALL:

PRESENT: Tom Kozel, Mark Borchardt, Lesly Cahill, Christine Holcomb, Whitey Simon, Kathie Schweikart, Edward Keller, and Anthony Antkowiak

ABSENT: Charles Miller

A quorum was established.

Also present: David Birchler, Clearzoning

3. AMENDMENTS TO AGENDA:

None.

4. APPROVAL OF MINUTES OF MAY 14, 2014:

Cahill: Corrections needed: Item #5, just before where I was speaking, the line above it I think it’s supposed to be “we now have in front of us.” Then every roll call it says Charles Miller and it should be me. Also, “colocation” is misspelled a couple of times. On #7, 7 lines down, “ordinances” should be “ordinance.”

Motion made by Holcomb, supported by Simon, to approve the Minutes of May 14, 2014 meeting, with corrections.

AYES: All NAYS: None MOTION CARRIED.

5. WORKSHOP/ZONING ORDINANCE #126:

Birchler: I did take notes last time that when it comes to holding the hearing on these, you like to hold the hearings individually, so I left each one as a separate little amending ordinance so they could be presented individually. The first one that was on our list of things to work on was the unobstructed yard space; which right now is a combination of a definition and standards and a process for obtaining approval of something that does not technically meet the standard, which it doesn’t refer to as a variance, but it gives the power to do that to the Board of Appeals. It seems to me that the simplest way to clean all that up is to separate the definition from the regulations and make sure that we have each in their proper place. I suggested, first of all, just taking a look at that definition and rewording it. My draft says “For purposes of this ordinance, unobstructed yard space shall mean a required or nonrequired yard space abutting designated water bodies that is void of all building structures, fences, shrubs, hedges and similar landscaping, including nonobscuring fences that create a visual barrier over 3’ in height.” It’s sticking with most of the concepts that are in that definition including that height limit. Also, exempts trees that are kept pruned to a minimal height of 8’ from the definitions. It is pretty much the way the definition reads now. I tried to clean it up a little bit. Then what I have suggested in terms of how we deal with regulations for unobstructed yard space is that we create a new section to govern that.

Cahill: In that section, you list Lake St. Clair, the St. Clair River and all that. Shouldn’t it have canals in there too?

Birchler: We can talk about that. That was one of the issues that we only scratched the surface of that prior to my developing a draft that we could actually talk about so we’ll get into that. So, taking a little bit of a clue from some of the discussion last time, I tried to relate unobstructed yard space and people’s desire to have a view of a water body to those things in the township that are legitimate, natural water bodies. I guess there could be some argument as to whether the channels are necessarily natural, because I’m sure some were cut and dredged. But they’re the size of a river for the most part, they’re pretty good sized as opposed to a canal that might be a 50’ wide or less way of getting out to one of those. Just for starters and for discussion purposes, I said that we would be talking about properties that abut the lake, the river and the channels and that they have to maintain an unobstructed yard space beginning at the normal high water mark, so starting at the water and then coming in, the depth of the minimum required rear yard setback for that district or a minimum distance of 25’, whichever is greater. I don’t think there are likely any situations where we’d have a lessor rear yard setback than that.

Borchardt: You’d probably find those on canals.

Birchler: Yeah, that might be an issues if we decide to add canals to this. In most cases, like R4 district has a 25’ rear yard setback, all the others are greater. That’s something we can talk about. You could decide that the rear yard setback abutting the waterway should always be unobstructed and therefore we could change that so that it says the depth of the minimum required rear yard. That would be one way to approach it.

Kozel: What’s the rear yard?

Chairman Antkowiak: The front yard is the roadside.

Borchardt: I have another question. Does it address any existing structures that are currently involved in this guideline?

Birchler: Any existing structure that is already obstructing a yard space would be legally established nonconforming and could remain. But if you remove it you wouldn’t be able to replace it. Your ordinance says the one on the lake is the rear and the one on the road is the front. The rear yard is the correct way to look at it. So, we could talk about whether 25’ is enough or whether the entire required rear yard ought to be subject to that. One of the problems that I had with the way that your ordinance is currently structured is that it appeared to say that whoever got closest to the lake first wins and nobody else can move their house any closer to the lake because they’d be obstructing someone’s yard space. It just seems to me that there ought to be a definitive line, if you’re going to have this concept at all, there ought to be a definitive line that applies to everyone and everyone should have the opportunity to build to the setback line if they can otherwise satisfy the ordinance. So I guess the question is, if someone is not exceeding the limits of the buildable area of the lot, is that something that we want to try to prevent just because someone else’s house isn’t as close? Does a new house obstruct your view? This is a touchy subject. Lakefront and waterfront communities have touchy subjects. Most people that live on the lake consider the whole lake to be theirs and the view of the whole lake to be theirs and I understand that. I’ve worked for communities like this for many years and I’ve heard all those arguments. I guess the challenge here is you have this concept in the ordinance and we’re going to keep this concept in the ordinance and we have to decide what’s a reasonable requirement that in terms of how much of someone’s property they have to leave unobstructed so that their neighbors can still get a view of the lake, or the river, or whatever. And if we want to take that all the way down to the level of a canal than we need to talk about that.

Chairman Antkowiak: In terms of clarification for me, using the illustration 2-8 on our definitions. I know they’re talking about the angles, but you’re suggesting that we start at the normal high-water mark and you go to the required rear setback, correct?

Birchler: The reason is that I don’t know how we determine where the rear lot line is. In some cases it may go way out into the water. Maybe I needed to ask Sid to be here to find out how he interprets that when he decides what somebody’s rear setback line is. Does he measure 25 or 35 or whatever feet in the middle of the river or does he measure it from the edge of the water?

Chairman Antkowiak: In this illustration we see one house that’s towards the water forward, one house in the middle that is quite a ways back and then another house kind of in between those. If we use this concept, which I have no problem one way or the other with it yet, let’s say the left house is built right on the setback, obviously the next house, in the middle, would be not on the setback. But the unobstructed view, in terms of the way you’re defining it, would start where the setback is and go out, is that correct? Not from the corner of the house?

Birchler: Correct. I think the interesting question is, if this house on the left is not to the rear setback yet, let’s say he’s got 20 more feet he can go, but as soon as he goes that additional 20’ he starts to obstruct this guy’s view. Is that wrong if he’s satisfying the setback requirements? I think that’s the question. The way that that is currently drafted, someone could have the right within the scope of the ordinance’s setback requirements to expand the size of their home and yet he may be prevented from doing that because his neighbor chooses not to expand the size of his home, or chooses to have a bigger backyard. And because he has a bigger backyard, he forces the neighbors on either side to have a bigger backyard too because they might obstruct part of his view if they don’t have a bigger backyard. You’re putting the development regulations in the hands of the person that chooses to do the least. There are probably some circumstances where that helps to prevent the “bigfoot” problem from growing any bigger, but maybe that’s the wrong way to do it.

Keller: This, extending the size of your home, and possibly blocking your neighbor, is there a right or a wrong way to look at this?

Birchler: No, I don’t think there is. I think there’s a Clay Township way of looking at it and that’s what we need to figure out.

Keller: Is that something we should figure out or should that be in the hands of an attorney?

Birchler: No, I think it’s a policy question that the Planning Commission and the Township board need to settle. I think it’s your job to come up with a good recommendation and propose that as an amendment to the ordinance and then let the board make a final call.

Chairman Antkowiak: Which would come after we have a public hearing and everything else.

Birchler: Yeah. The whole community would have the opportunity to weigh in. I guess there’s three parts to this. There’s the definition, trying to clean up the definition and get it so that it’s just the definition and not a set of regulations. Then there’s determining and this is the hardest part really, determining what is the appropriate unobstructed yard space and arriving at that. The third thing is the ordinance currently allows the Zoning Board of Appeals to approve a fence that is higher than 3 feet basically, or I suppose a hedge that’s higher than 3’ or a stockade fence or a wall and they need to have some standards for when they’d be allowed to do that. I started from the basic assumption that if you’re allowed to have a 3’ nonobscuring fence that from a security standpoint is enough to keep little children or pets on the property, on the assumption that if they stray off the property they might be harmed. If we assume that that’s adequate for normal safety, then what do we allow to go beyond that and the concept that I came up with is that the board of appeals would have to make a finding that at least two of the criteria below are present in order for them to have a good reason to allow the higher fence. The first criterion is the fence is no more than 10% opaque, so it’s fairly transparent. The second is that it’s necessary to ensure health, safety or general welfare of persons, especially young children, based upon an identified hazard or danger. The third one, the fence or similar structure is necessary to secure communication or utility infrastructure and/or protect the general public from potential hazards associated with those things. The fourth one is, the fence or similar structure is necessary for purposes of Homeland Security. I think that because of the location you’re in there are probably some situations where you could have Homeland Security folks come in and say we’re going to put up some sort of a barrier for this reason or that. So the idea is, the board of appeals can allow that whenever there is two or more of those things present.

Kozel: Could that danger be a dog?

Birchler: Well, I guess it could be, although if someone has a dangerous dog I think there are other ways of dealing with that, assuming that you have some sort of animal control out here. I guess whether or not a next door neighbor’s dog would meet that standard would likely be the judgment of the board of appeals based upon the application presented asking for the fence.

Bryson: Homeland Security, is that just dealing with because we’re on the border?

Birchler: I thought that might be a relevant issue. We don’t have to leave that one in. We have a general security criterion in there already, so if that one doesn’t seem appropriate we can just leave it out and then they just have to prove two of the three above and maybe you only want them to prove one. Maybe you would determine that only one of those criteria is necessary for the board to have a reason.

Chairman Antkowiak: Based on my experience with the ZBA, the issues that we have dealt with are the fences in the unobstructed view are in the neighborhoods where the canals are. The river, the lake those are seldom an issue. Personally, I think by not including the canals in the definition we’re probably going to have this place filled and they may just hang all of us.

Birchler: This is the type of thing that I don’t have that experience. I had to bring you something that was a starting point. We can say that this applies to any navigable waterway and leave it at that. The canals are all navigable and so is everything else I mentioned.

Chairman Antkowiak: Isn’t that kind of what they do in the original? This is a new issue.

Personally, I think any navigable waterway.

Schweikart: I think it’s a hot issue and if you don’t include the canals in some form or fashion, whether it’s spelled out or just use navigable waterways, I think we’re going to be in a boatload of trouble.