CHARTER TOWNSHIP OF ELMWOOD ZONING BOARD OF APPEALS REGULAR MEETING 4:00 PM at the Township Hall A. Call to order: Debbie Street called the meeting to order at 4:00 PM. B. Nominate Chair: Motion by Street, seconded by Haring to nominate Ansorge as Chair. Motion carried 3-1 with Ansorge voting No. C. Roll call: Present: Tony Ansorge, Debbie Street, Ray Haring, Randy Baidas present Gary Bergstom excused, Jeff Aprill excused due to taking part in the original decision being appealed as a Planning Commission member Staff: Sara Kopriva D. Agenda modifications/approval: MOTION BY DEBBIE STREET, SECONDED BY RAY HARING TO ADOPT THE AGENDA AS PRESENTED. MOTION PASSED 4-0 BY A VOICE VOTE. E. Declaration of a conflict of interest: There was none. F. Purpose of the special meeting: Noverr Farms appeal of the Planning Commission decision to deny approval of the site plan for conditional use 2016-01. Attorney Peter Wendling stated today is the date set for the appeal of the Site Plan approval only portion of the Noverr Farms matter which was heard on December 13 th, 2016. The focus is whether or not the planning commission s decision with evidence that was on the record was a fair exercise of discretion was based upon competent material and substantial evidence on the record for their decision on the Site Plan. Keep in mind this is the case with the ZBA as well but the planning commission makes the decision can use a variety of the exhibits that are part of the record and the evidence used for each finding has to be something more than a scintilla but less than a preponderance. A scintilla is a very low standard of evidence where as a preponderance of evidence goes more than 51 % in one direction. So here even a little bit of evidence is sufficient, so the evidence includes the entire record including letters that you ve received and the expert testimony that was received, everything that was incorporated on the exhibit list. It is not proper for the board to consider evidence outside of the record the planning commission compiled. This is not a hearing about whether the Noverr Farms original application was a good idea or a bad idea. The ZBA is simply reviewing the record of the planning commission based upon the appeal by Mr. Noverr of the site plan standards only and the evidence related to those standards. Presentation by applicant: Fred Campbell asked for the ZBA to approve Noverr s site plan. He referred to the Master Plan and the preservation of Agriculture (see submittal). He talked about the history of the application and referred to Brengman Brother s process. He went through some standards on the Planning Commission s Page 1 of 5
decision. The Master Plan states that it is the desire of the township to seek agricultural functions to continue that are viable. It deals with trying to keep a farm from being taken over and converted to a residential subdivision. The Master Plan says a percentage of the township is agricultural and they would like to see that maintained. Matt Vermetten spoke on behalf of the applicant talking about Judge Rodgers decision, the process for approval, and the Planning Commission decision. The board asked questions of the applicant related to their original application. Public Hearing opened at 5:08 p.m. Ed Schaub lives 9 lots north of the driveway entering Noverr Farms in Bingham Township. His address is 7858 S. Lakeview Rd. He directed his remarks only about the loud noise coming from Noverr Farms current events, he also only wanted to talk about 2 past events although there s over a dozen that he could speak about. Peter Wendling interjected for clarification; the ZBA is reviewing record from the Planning Commission for the site plan review that was done in December. Comments related to the standards of the site plan that would be a better focus for the public hearing. Vermetten commented that he would object to anything that has to do with anything other than the site plan specifically. Wendling noted his objection and it was decided people could comment for the record but the ZBA knows what they re here to do. Ed Schaub finished his comments about loud noise. Dennis Bushey commented about the lack of safety with traffic, width of driveway being too small and stromwater runoff on to adjacent properties. Vermetten objected to all comments except having to do with width of driveway and runoff. Attorney Karen Ferguson for SLAN: represents 99 members of the Southeast Leelanau Association of Neighbors, they own property adjacent to and nearby Noverr Farms and that includes property owners in Bingham Township. Many members stand to be substantially harmed if the ZBA reverses the Planning Commission s denial of the site plan. Because Noverr Farms had held several large events without proper permits, the Planning Commission had a large body of evidence concerning complaints about the unreasonable and intolerable situation due to noise, passing lights, and a number of other nuisances. The record contains affidavits from SLAN members. There was a petition in the record opposing the granting of the conditional use that specifically listed the standards relevant to neighbors, what the conditional use intended to do was incompatible with the residential use. There are at least 3 site plan standards that deal specifically with the neighbors and that s why the previous testimony concerning noise is relevant because it applied to specific standards. She talked about the Master Plan- page 50 reads the intent of township zoning is to protect homes and investments against the potential intrusions of business into residential neighborhoods. There is substantial, competent material, evidence in the record describing that the residential character is 80-90 homes. Page 2 of 5
The standard that is particularly relevant to the neighbors and noise is 13C.5.B.7. No matter what changes they make to this site plan, they cannot make it compatible with the neighborhood. The body of evidence is more than anybody needs to determine that standard can never be met. The commission correctly found there was a significant amount of public comment in the records that addressed these adverse impacts from traffic, light, trespass and noise. Brett Kaufmann commented he has property on E. Lakeview Hills Rd. and also on S. Lakeview Hills Rd. He commented on discussion of Bregman Brothers property and noted it is not in a residential area, they have 20 acres of Ag. Judy Aja lives at 7952 S. Lakeview Rd. reiterated what others have said. The Planning Commission s standard 13.C.5.B7 has to do with the effects on homeowners and occupants in the neighborhood and they are affected by the events going on at Noverr Farms. Vermetten noted they still have objection with anything not related to site plan and also objected to submission of paperwork. Martha Topol talked about how the site plan relates to the Master Plan and the Master Plan supports agribusiness. She supports agri-business, but it depends on where it is. Public Hearing closed at 5:40 p.m. Peter Wendling asked for any follow up questions from the ZBA members for the applicant or staff. Ray Haring asked about the DEQ waste water permit. Fred Campbell responded they do not currently need a permit because they don t produce enough wastewater. Objection by SLAN attorney. This was not in the Planning Commission record. Ansorge commented that his understanding of the process is the applicant comes forward with a conditional land use, they will come to the zoning administrator and start the process and develop an application and then the Z.A. reviews the application for completeness. He asked if there are deficiencies, does she makes note of those deficiencies and notify the applicant of that list of deficiencies. He continued, in this process, he says it gets a little fuzzy because he s not sure she was the person through the whole process, but, did the Z.A. provide a list of deficiencies to the applicant prior to the applicant s packet being placed on the Planning Commission agenda. Staff responded that in 2015 when it was initially submitted, John Iacoangeli was acting as the township planner, reviewed the site plan for completeness and found that the site plan was substantially complete and could be forwarded to the Planning Commission. Later it was determined that the application was ineligible for Planning Commission review, which was appealed by the applicant to the. The Zoning Board of Appeals upheld the decision and the applicant appealed to the 13 th Circuit Court. The Court decision remanded the application to the Planning Commission for a public hearing. In July 2016, Sara did send the applicant a list of items missing from the site plan. Page 3 of 5
Peter Wendling gave guidance on how to proceed. The reviewed the Planning Commission s findings for Section 13C.5.A discussing each individually. There was discussion on if the Fire Department was an outside agency. Motion by Randy Baidas, seconded by Ray Haring that the standard for item 13C.5.A#2 has not been met because approval letters were not received from the Elmwood Township Fire Department and MDEQ, approval for fire access and winery waste water, and the ZBA agrees with the finding that this standard has not been met because the Planning Commission has not received approval from the Fire Department Exhibit R II and MM. Motion approved 3-1 with Tony Ansorge voting against. Motion by Debbie Street, seconded by Ray Haring that the Planning Commission s ruling under section 13C.5.A#3 that adequate essential facilities and services including highway, streets, police, fire protection, drainage, structures, refuse disposal, water and sewage facilities, and schools are available or the provision of such facility and services has been assured, stating that the standard has not been met is upheld based on the record provided. There was discuss about what adequate means in terms of the Fire Department. Motion passed 4-0. Motion by Randy Baidas, seconded by Ray Haring, that the Planning Commission s ruling under section 13C.5.A.#4 be upheld based on the record provided. Motion passed 4-0. Motion by Debbie Street, seconded by Ray Haring, to uphold 13C.5.A#5 of the Planning Commission s finding that this standard has not been met based upon the evidence provided on the record. Motion passed 4-0. Motion by Debbie Street, seconded by Randy Baidas, to uphold 13C.5.A#7 of the Planning Commission s finding that the standard has not been met based on the record. Motion passed 4-0. Motion by Randy Baidas, seconded by Ray Haring, to uphold the decision by the Planning Commission regarding Section 13C.5.A#8 based on the evidence before the. Motion passed 4-0. Motion by Tony Ansorge, seconded by Randy Baidas, that the Planning Commission s ruling under section 13C5A#10 not be upheld due to the lack of information. Motion passed 4-0. There was discussion on whether the Planning Commission told the applicant that they need impervious surface information. There was discussion on remanding Section 13C.5.A#12 to the Planning Commission. Motion by Tony Ansorge that for Section 13C.5.A#12 the Planning Commission did not show enough evidence based on the record because they did not provide the applicant the opportunity to provide the information as required by the Zoning Ordinance. Motion failed due to lack of second. Motion by Randy Baidas, seconded by Ray Haring, to uphold the decision of the Planning Commission on 13C.5.A#12, that the standard has not been met based on the record. Motion passed 3-1 with Tony Ansorge voting no. Page 4 of 5
Motion by Debbie Street, seconded by Ray Haring, that the Planning Commission s decision was proper based upon the record and should be upheld. Motion passed 4-0. Motion by Tony Ansorge, seconded by Debbie Street, that the Planning Commission s decision for Section 13C.5.A#1 be upheld based upon items 5, 13, 14, and 23 of the Planning Commission findings and based on the evidence on the record. Motion passed 4-0. Motion by Debbie Street, seconded by Randy Baidas, to uphold the Planning Commission s ruling to deny the site plan of Noverr Farms for CLU 2016-01, at 7981 S. Lakeview Rd. parcel # 004-101-001-00 based on the ZBA findings as stated on the record. Motion passed unanimously. G. Public Comment: None H. Motion by Ray Haring, second by Debbie Street to adjourn at 7:26PM. Motion passed. Page 5 of 5