as Morrison Drive and to direct the Code Official to abate the violations identified ordinance.

Transcription

1 CITY OF STERLING HEIGHTS NOTICE OF PUBLIC HEARING The Ordinance Board of Appeals held a public hearing at 7:00 p.m. on June 12, 2017 at the Sterling Heights Municipal Center, Utica Road, Sterling Heights, MI in the Council Chambers, At this meeting the Board (1) considered variance requests of petitioners and (2) conducted hearings on abatement of nuisances relating to the property and property owners itemized on the following agenda. AGENDA 1. Acting Chairman called the meeting to order at 7:00 pm 2. Roll Call John Pitrone Chairman, Juli Sala Secretary, Robert Ervin, Benjamin McMartin, Paul Zdzieblowski, Denice Gerstenberg City Development Director, Paul Geiger - Code Enforcement Officer, Dana Vietto Recording Secretary 3. Report from City Liaison Denice Gerstenberg a. All petitioners were notified by first class mail about tonight s meeting. Remove the following items from the consent agenda as they have been cleaned up prior to the meeting G , G , G , G , G , G , G & G b. Presentation from the City Attorney Don DeNault, City Attorney, was present. Mr. DeNault stated that the Ordinance Board of Appeals has been asked to review three cases tonight; body art license facility, appeal of a front yard interpretation and a fence ordinance variance, and an amusement device distributor license denial. When we get to each case Mr. DeNault will go through each ordinance requirements. The Board can ask him questions at that time. It is up to the Board to decide these appeals as an unbiased independent body. It is a due process hearing, so it gives anybody who has been denied by the City to be heard. 4. Removal of Consent Items to New Business a. Moved item 16 to New Business 9a. G Somberg, Blair H Jacqueline Drive b. Moved item 22 to New Business 9b. G Shakouri, Sinan Shell Drive 5. Approval of Agenda Motion by Ervin, supported by McMartin, to approve agenda Yes: All. Motion carried. 6. Consent Agenda Moved by Ervin, supported by McMartin, RESOLVED, to approve the Consent Agenda as amended: 1. To approve the minutes of the regular meeting of April 24, 2017, as presented. 2. G Metro, LLC 7750 Metropolitan Parkway as 7750 Metropolitan Parkway and to direct the Code Official to abate the violations identified in the attached staff reports which give rise to this finding immediately. The Board also authorizes and approves the imposition of a lien against the property, in the amount of the cost of abatement incurred by the City, as permitted by the applicable city 3. G Geralt, Tara R Mandale Drive as Mandale Drive and to direct the Code Official to abate the violations identified 4. G Wells Fargo Bank Morrison Drive as Morrison Drive and to direct the Code Official to abate the violations identified

2 Regular Meeting Page 2 5. G Molnar, Robert J Valusek Drive as Valusek Drive and to direct the Code Official to abate the violations identified 6. G Green, Merle Jean Covington Drive as Covington Drive and to direct the Code Official to abate the violations identified in the attached staff reports which give rise to this finding immediately. The Board also authorizes and approves the imposition of a lien against the property, in the amount of the cost of abatement incurred by the City, as permitted by the applicable city 7. G Zaky, EZ Ryan Road as Ryan Road and to direct the Code Official to abate the violations identified in the attached staff reports which give rise to this finding immediately. The Board also 8. G Lannoo, George & Alice Colony Drive as Colony Drive and to direct the Code Official to abate the violations identified 9. G Shaba, Jennifer Mound Road as Mound Road and to direct the Code Official to abate the violations identified 10.G Nouri, Labeed & Btros, Rouwaida 3142 Albany Drive as 3142 Albany Drive and to direct the Code Official to abate the violations identified in the attached staff reports which give rise to this finding immediately. The Board also 11.G Simkus, Michael Jeorge 2854 Belcher Drive as 2854 Belcher Drive and to direct the Code Official to abate the violations identified in the attached staff reports which give rise to this finding immediately. The Board also 12. G Shamoon, Wadie & Sahira English Drive as English Drive and to direct the Code Official to abate the violations identified

3 Regular Meeting Page G Alysofi, Abdulla Hanson Drive as Hanson Drive and to direct the Code Official to abate the violations identified 14.G Pola Properties, LLC Steede Drive as Steede Drive and to direct the Code Official to abate the violations identified 15.G Mann, Steven Edward & Huntington National Bank 8962 Cologne Drive as 8962 Cologne Drive and to direct the Code Official to abate the violations identified 7. Public Hearing a. G Burke, Brandon Van Dyke City License Denial- Asking Board to reconsider the denial of his City License. Brandon Burke, owner, was present. Mr. Burke stated that when he was filling out his application for his license he did sign to the best of his knowledge that he did not have a criminal act in the past 5 years. Mr. Burke stated that he thought he was past the five years. The body art facility is his life. He is asking the Board to reconsider. He has his state and federal license. They do a number of different Art forms. Tattooing is the staple. Mr. Burke stated that he is just trying to get his license to work to support his family and workers. He does a lot of charity work for the community. Don DeNault stated that as the petitioner explained this is an administrative denial of an application to have a body art facility license in the City of Sterling Heights. A number of years ago the City put in an ordinance to regulate body art facilities. It is actually a permit that the City issues. At the time the ordinance was drafted it was meant to be strict. One of the denial reasons is if you plead to or were convicted to any crime during the five years prior to the date that you submit your application to the City. The City Clerk had no choice but to deny. The ordinance does allow an appeal to this Board. The Board has two options. The Board can overturn the denial and was an error or the Board can grant a variance from whatever provision it was that lead to the denial. The ordinance states that you can t relax, overturn, or grant a variance if the denial is based upon the occurrence of a criminal act. The Boards only charge is was the denial based upon the occurrence of a criminal act or was it based upon something else. If it was based upon something else the Board could grant a variance and direct the City Administration to issue the permit. If it was based upon the occurrence of a criminal act the Board would be restricted by the ordinance to not grant a variance or overturn the denial. Mr. DeNault stated that he can take any questions at this time. Mr. Pitrone stated that if the denial was due to a criminal act the Board can t do anything. Mr. DeNault stated that the petitioner stated that he has a misdemeanor crime and because of that the City Clerk denied the permit. The ordinance says plead to or convicted of any crime during the five years prior. The only room for the Board is does the Board aquat a plea to or conviction of with the occurrence of a criminal act. The standard for the City Clerk was plead to or convicted of. The standard for the

4 Regular Meeting Page 4 Board is was the denial based on a criminal act or was it based on something else. If it was based on something else than the Board can determine if a variance is appropriate. Mr. Pitrone asked Mr. DeNault if a speeding ticket is a criminal act. Mr. DeNault stated, No. A speeding ticket is a civil infraction. Mr. Ervin asked if the petitioner is denied tonight what would be next for the petitioner. Mr. DeNault stated that his administrative options would be exhausted and his last forum would be the Macomb County Court. Mr. Pitrone asked what the date of the occurrence of the criminal act was. Melanie Ryska, City Clerk, stated that the conviction date was January 4 th Ms. Gerstenberg asked Mr. DeNault if there is an interpretation of criminal acts and if it is based on the conviction date can he apply for a new permit on January 4 th Mr. DeNault stated that the City Clerk talked to the petitioner about waiting until January because the ordinance states if you have ever been denied in Sterling Heights you can never apply again. If he is denied here tonight he is not allowed to have a body art facility in the City of Sterling Heights. Ms. Ryska has found that the arrest occurred in June of Mr. Sala asked Mr. DeNault if the ordinance is the date of the criminal act or the date of the conviction. Mr. DeNault stated the City Clerks job is to go five years from the conviction date. The Boards job is to determine if the denial was based upon the occurrence of a criminal act. That gives the Board some flexibility in determining was the denial based on a criminal act petitioner committed or was it based on the fact that he was conviction on a certain day. If you want to make that distinction as a Board you can or are they one in the same. Mr. Zdzieblowski asked Mr. DeNault if the petitioner can still withdraw his appeal tonight. Mr. DeNault stated that he could only withdraw the appeal tonight and the denial would still exist. Mr. Sala asked if the Board could postpone until January. Mr. DeNault stated that the Board can postpone to a future date. Mr. Pitrone asked Mr. Burke if he knows what date the criminal act took place. Mr. Burke thought the date was around June 12 th 2012 around 7:00pm. Mr. Burke stated that the point of him doing this appeal is to open his business he can t wait until January or his whole business will fall. If he can t get the appeal then he can t survive. Mr. Sala stated that if the Board postpones for two weeks they would be past the five years and can the Board say that the denial is no longer based on a criminal act because it is past that five year mark. Mr. DeNault stated that the ordinance states was the denial based on the occurrence of a criminal act. If the denial was not based on a criminal act then you can grant a variance. Mr. DeNault stated that the criminal act took place in June of 2012 and the conviction took place on January 4 th The denial from the City Clerk s office was on April 28 th Mr. DeNault stated that it was denied because of a conviction of a criminal act not for the occurrence of a criminal act in the last five years. Mr. McMartin asked Mr. DeNault if the Board could grant a variance to go into effect in July Mr. DeNault stated, Yes. Mr. Pitrone clarified that he was denied the permit because of a misdemeanor conviction and this Board could look at the criminal act itself. dinance Moved by McMartin, supported by Ervin, RESOLVED, to GRANT a variance to the provision requiring denial due to a criminal act during the five years prior to date of the permit application starting June 2012 so that the permit may be issued, for the reason that the denial was not based on the occurrence of any criminal acts within five years and because exceptional or extraordinary circumstances or conditions are applicable to the applicant and granting the permit will not have a material adverse effect upon the health, safety, or welfare of persons residing or working in the neighborhood or attending the body art facility and will not be materially detrimental to the public welfare or injurious to the immediate neighborhood or the City at large. The following conditions shall apply to the body art facility permit: The variance is not in effect until June 30, b. G Dehondt, Thomas 3777 Lisa Marie Drive Appeal of Zoning Ordinance & Fence Variance Appeal the Planning/Building departments interpretation of the Zoning Ordinance with respect to the Front Yard definition. If necessary request a variance to allow the placement of a 6 foot wood non-

5 Regular Meeting Page 5 sight obscuring garden fence in the front yard. Thomas Dehondt, owner, was present. Mr. Dehondt stated that he has raised a garden on 1.5 acres and struggles with deer. His daughter has a landscape fence that he wants to put on his property. Mr. Dehondt stated that the building department said that the fence has to be located behind the house. The ordinance states that a fence, including one of sight obscuring design, may be erected upon any side or rear lot line and along the front yard setback line, provided the fence is not less than three feet nor more than six feet above grade level at any location, and provided further that adequate access for firefighting is provided. Fences are not permitted to extend into the front yard. The City of Sterling Heights definition of a front yard is an open space extending the full width of the lot, the depth of which is the minimum horizontal distance between the front lot line and the nearest point on the main building. Mr. Dehondt stated that his distance from the front lot line is feet. He is disputing the point of reference. He was told to make his reference line perpendicular to his lot line. The building department is using a standard form based on a straight front line yard. The ordinance references the front lot line. The building department is misinterpreting the zoning ordinance and if that is denied than he would like to request a variance to build the fence in that location. Mr. Pitrone asked what the size the fence will be. Mr. Dehondt stated that the fence would be 30 by 52 and 6 feet high. This type of fence is to keep the deer out. Ms. Gerstenberg stated that the building and planning department are aware of the type of fence and don t have a problem with it. Mr. Ervin asked Mr. Dehondt if the lot will be developed. Mr. Dehondt stated that he would have to acquire more property to develop something. Mr. Sala stated that he is not comfortable with redefining the interpretation of the front yard but would do a variance for extraordinary circumstances because of how the lot is. Mr. Dehondt asked if he could get an interpretation from the City level not just from an individual. Mr. Pitrone stated that he would need to speak to the administration. Mr. Pitrone stated that if he needed additional fencing in the future he would need to apply for a variance. Mr. DeNault stated that if the Board was to accept the interpretation of the front yard by Mr. Dehondt than going forward that would be his interpretation of his property. The Board could decide to decline his interpretation and decide for a variance. It is important that the Board makes a decision on both. Make a decision on the interpretation and then a decision on the variance. The variance would be limited to the facts that were brought to the Board this evening it could not be changed. Moved by Sala, supported by McMartin, RESOLVED, to Deny the appeal because the proposed fence location is in the front yard of the property. Moved by Sala, supported by Zdzieblowski, RESOLVED, to GRANT a variance to the ordinance provision prohibiting a fence in the front yard of the property for the reason that allowing the fence will be in harmony with the spirit of the fence ordinance; the public safety and welfare will be secured; substantial justice will be done; exceptional or extraordinary circumstances or conditions are applicable to the property that do not apply generally to other properties in the City; the variance is necessary for the preservation and enjoyment of a substantial property right possessed by other properties in the vicinity; the granting of the variance will not be detrimental to the public welfare or materially injurious to the property or improvements in the vicinity of the property; and the granting of the variance will not adversely affect the purposes or objectives of the City s Master Plan c. G Palaian, Steven/Nuway Vending 4043 Seventeen Mile Road & Van Dyke Distributor License Denial Appealing the denial of his distributor license Steven Palaian, owner, was present. Mr. Palaian stated that he is an amusement

6 Regular Meeting Page 6 device operator and has been in Sterling Heights for twenty years. He applies for the amusement device license every year. On the application he omitted his conviction record. His daughter filled out the application and he signed it. The police officer called him and said they did a background check on him and asked if he had any convictions and he told the officer that he did have a conviction. He was denied the license. It looks like he lied on the application and he made a mistake. Mr. Palaian stated that he has not been in any trouble. He has been on probation since June 13, 2014 and has paid all his fines. Mr. DeNault stated that this appeal is different it is a discretionary denial. Amusement device distributors are someone or businesses who place the amusement devices in a local business. A distributor has to get a license to place in the City. Our ordinance regulates our distributors and businesses with amusement devices. They have to get a license from the City to place these devices in our City. The Chief of Police does a background check and determines a recommendation to the City Clerk as to whether they should get a license or be denied. This particular case the Chief of Police discovered that this individual had a criminal conviction of conducting a criminal enterprise. It involved some type of gambling or moral turpitude event and when those things are place the Chief of Police can recommend denial if it took place in the last ten years. The Chief of Police did that and the City Clerk shall deny unless it is something that can be fixed. The ordinance states that the petitioner can seek a variance. In order to do that the petitioner must prove that special conditions cause literal enforcement of the provision of the ordinance to cause practical difficulties or cause impractical hardships. If you find that to be true than the Board has the power to modify the provisions of the ordinance in unique circumstances with any conditions or safeguards that the Board reasonably determines with harmony and spirit with the ordinance but still securing the public safety and welfare throughout the community. The Board must look at three criteria and they all must exist for a variance to be granted. Mr. Pitrone asked if the criminal conviction happened in the last 10 years. Mr. DeNault stated that it was July 16 th The report stated that the machines were supplied to a bar that was used for illegal gambling. Mr. Palaian stated that he was charged with attempted gambling and not conducting a criminal enterprise. Mr. Zdzieblowski asked Mr. Palaian if there was a plea bargain. Mr. Palaian stated that there was a plea bargain, they started with conducting a criminal enterprise and brought it down to attempted gambling. He got fines and probation and has not had any problems since. There was a sweep in Flint by the Michigan Gaming Control Board and he had one machine in Flint. Mr. Pitrone asked Mr. Palaian to explain to the Board why a variance should be granted. Mr. Palaian stated that he has done business in Sterling Heights for a long time. It is a hardship not to do business. He stated that it won t put him out of business not doing business in Sterling Heights. He would like to do business in Sterling Heights. He has had a good record since then. Mr. Pitrone stated that the letter he provided to the Board stated that he would like to have his wife apply for the license. Mr. DeNault stated that he would have to transfer the business to the wife because it would still be Nu-Way vending applying which would be denied. Mr. Sala stated that in four applications he stated that he had no criminal history. Moved by Ervin, supported by Zdzieblowski, RESOLVED, to DENY the appeal and DENY a variance for the following reasons The applicant has not demonstrated special conditions that would cause practical difficulties or unnecessary hardships for the applicant due to a literal enforcement of the provisions of the Issuing the license would not be in harmony with the spirit of the Issuing the license would not secure the public safety and welfare. The applicant has not established by a preponderance of the evidence that exceptional or extraordinary circumstances are applicable to the applicant that do not apply generally to other similar applicants. Issuing the license will adversely affect the purposes or objectives of the City s Master Plan.

7 Regular Meeting Page 7 d. G Schaffner, Jessica E Manning Court Fence Variance- Asking Board approval to allow a 6ft white Vinyl sight obscuring fence on a corner lot 3 feet back from the sidewalk along Leech Drive. 8. Old Business Jessica Schaffner, owner, was present. Ms. Schaffner stated that she wants to replace the existing chain link fence with a white vinyl fence. She was unaware that the side yard is considered a front yard. The fence has 60 feet of frontage. She removed the shrubbery to enhance the visibility. Mr. Pitrone stated that he drove by the property and didn t see an issue but doesn t like white fences. Ms. Schaffner stated that if the variance is not approved she will lose $ Mr. Pitrone stated that the Board is not allowed to consider finances. Mr. McMartin stated that he likes the white fence. The neighbors stated that they live next door and she is a considerate neighbor and there is no safety issue. Moved by Zdzieblowski, supported by McMartin, RESOLVED, to approve case G at Manning Court with the following conditions: 1 that the petitioner agrees to abide by and comply with all applicable rules and regulations and orders of every lawful agency or governing authority having jurisdiction, 2 that the decision of the Board will remain valid and in force only as long as the facts and information presented to the Board in public hearing are found to be correct and that the conditions upon which the motion is based are maintained as presented to the Board. 9. New Business a. G Somberg, Blair H Jacqueline Drive Code Enforcement Officer, Paul Geiger, stated as of today there were some changes to the property. Pictures were shown at this time. Nicholas Somberg, owners son, was present. Mr. Somberg stated that everything has been cleaned up and nothing is being stored. The weeds are petty and he is not even going to address it. Mr. Somberg asked if the code enforcement officer was here tonight. Mr. Geiger stated that it is Craig Serafino s case. Mr. Somberg stated that the code enforcement officer should be here tonight and this is hear say. Mr. Pitrone went through the pictures again and asked if everything was removed. Mr. Somberg stated that his tenant is here and he can address that. Mr. Somberg asked them to stay out of his fathers back yard and leave them alone. Mr. Somberg asked if they had permission to enter his property or did they trespass. He stated that he was told to be here at 7 pm it is now 8:30 pm and this is unacceptable. Mr. Pitrone stated that he heard the long cases that we had tonight. Mr. Somberg stated that if they are going to have him be here then he needs a private meeting. He is not going to sit there while the Board dilly dallies with the whole City. Mr. Pitrone stated that Mr. Somberg is saying that everything is all cleaned up then the Board can take whatever action they deem appropriate. If it is all cleaned up there will be nothing to do. Mr. McMartin stated to Mr. Somberg that he has seen the pictures here today and has been out to the property. The Board will close it out today and it will be an immediate abatement. Mr. Somberg stated that the City put a sign out in their yard and wanted to know if that is improperly storing. Mr. McMartin stated that the sign is a notice. Mr. Somberg stated that a notice would be by mail or personal service. Mr. Somberg stated that they trespassed and then trespassed again by placing a sign in their yard and broke our own ordinance by its storage. Mr. Somberg told the Board to, Stop it, seriously. Mr. Somberg stated no signs and stay out of their backyard, leave private property alone, no pictures and no sneaking around. Mr. Somberg stated that their neighbor has his own issues. Mr. Somberg stated that if the Board is going to call him here or his dad then he wants to be at 7:00pm and number one on the agenda or give him a private meeting. Mr. Zdzieblowski stated that he feels threatened by the gentleman. Mr. Somberg said, Snowflake and it is slanderous. Moved by Sala, supported by Zdzieblowski, RESOLVED, to declare that a public nuisance exists on the property commonly known as Jacqueline Drive and to direct the Code Official to abate the violations identified in the attached staff reports, which give rise to this finding immediatley. The Board also authorizes and approves

8 Regular Meeting Page 8 the imposition of a lien against the property, in the amount of the cost of abatement incurred by the City, as permitted by the applicable city Yes: Ervin, McMartin, Pitrone, Sala, Zdzieblowski b. G Shakouri, Sinan Shell Drive Code Enforcement Officer, Paul Geiger, stated as of today there were some changes to the property. Pictures were shown at this time. Sinan Shakouri, owner, was present. Mr. Shakouri stated that when he is told what to fix he fixes it. Mr. Pitrone stated that there is a little bit to fix and how long will it take. Mr. Shakouri stated that he needs a week. Mr. Pitrone stated that if he has questions he can call the City. Moved by McMartin, supported by Zdzieblowski, RESOLVED, to declare that a public nuisance exists on the property commonly known as Shell Drive and to direct the Code Official to abate the violations identified in the attached staff reports, which give rise to this finding after June 19, The Board also authorizes and approves the imposition of a lien against the property, in the amount of the cost of abatement incurred by the City, as permitted by the applicable city 9. Public Participation 10. Adjournment Motion by McMartin, supported by Ervin to adjourn the meeting. Yes: All. Motion carried. The meeting was adjourned at 8:42 pm Respectfully submitted. John Pitrone Juli Sala John Pitrone - Chairman Juli Sala - Secretary Ordinance Board of Appeals Ordinance Board of Appeals