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CITY OF MUSKEGON
ZONING BOARD OF APPEALS
REGULAR MEETING
(Amended)
DATE OF MEETING: December 12, 2006
TIME OF MEETING: 4:00 p.m.
PLACE OF MEETING: Commission Chambers, First Floor, Muskegon City Hall
AGENDA
I. Roll Call
II. Approval of Minutes of the Regular Meeting of November 14, 2006
III. 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 from a total of 16 feet to a total of 14 foot 11 inches. This
request is for the property located at 2270 Crowley St., by Chris Collins.
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 Ave, by Mike Fuller of Prien & Newhof.
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, by Christopher Kelley of the Parmenter O'Toole law firm
Hearing Case 2006-020 Request for a variance from Section 2331 Landscaping,
Fencing, Walls, Screens and Lighting, to allow building accent lighting that shines onto
the building above the horizontal plane at 601 Terrace St., by Christopher Kelley of the
Parmenter O'Toole law firm.
IV. OLD BUSINESS
None
IV. Adjourn
AMERICAN DISABILITY ACT POLICY FOR ACCESS TO OPEN MEETINGS OF THE
CITY COMMISSION AND ANY OF ITS COMMITTEES OR SUBCOMMITTEES
The City of Muskegon will provide necessary reasonable auxiliary aids and services, such as signers for the hearing
impaired and audio tapes of printed materials being considered at the meeting, to individuals with disabilities who want to
attend the meeting, upon twenty-four hour notice to the City of Muskegon. Individuals with disabilities requiring auxiliary
aids or services should contact the City of Muskegon by writing or calling the following:
Linda Potter, Acting City Clerk
933 Terrace Street
Muskegon, MI 49440
(231) 724-6705
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CITY OF MUSKEGON
ZONING BOARD OF APPEALS
STAFF REVIEW
December 12, 2006
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 from a total of 16 feet to a total of 15 feet.
BACKGROUND:
Applicant: Chris Collins
Property Owner: Same
Property Address(location): 2270 Crowley St.
Zoning: R-1, Single Family Residential
Current Land Use: Vacant Lot
Lot Dimensions: 41' x 120'
Request: A variance request to reduce the total side setback required to allow construction of a
home.
STAFF OBSERVATIONS
1. The zoning of adjacent parcels is R-1 Single-Family Residential.
2. This property has been determined to be a legal lot of record shown on the 1917 plat map for
the Orchard Grove Addition. Which was part of Muskegon Township until the late sixty's.
3. 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.
4. Based on preliminary drawings provided by the owner, it appears they will be able to meet
the remaining zoning requirements.
5. 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
twelve- (12) inch overhang. This effectively makes the minimum width of the structure from
drip edge to drip edge 26 feet.
6. 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
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7. Staff has received no comments on this case.
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Application Page 2:
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Notice Map:
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Photos of Property:
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Site Plan Provided:
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Sketches & Floor Plans:
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Ordinance Excerpts: (emphasis added)
ARTICLE II – DEFINITIONS [Amended 3/98]
Lot: Land described in a recorded plat or condominium unit in or condominium project,
occupied or to be occupied by a building, structure, land use or group of buildings having
sufficient size to comply with the frontage, area, width-to-depth ratio, setbacks, yards, coverage
and buildable area requirements of this Ordinance, and having its principal frontage upon a
public street or on a private road approved by the City (see Figure 2-6).
Lot Area, Gross: The area contained within the lot lines or property boundary including
street right-of-way, floodplains, wetlands, and waterbodies (see Figure 2-6).
Lot Area, Net: The total area of a horizontal plane within the lot lines of a lot, exclusive
of street right-of-way, floodplains, wetlands, waterbodies, any public street right-of-way
or access easement abutting any side of the lot (see Figure 2-6).
Lot, Corner: A lot which has at least two contiguous sides abutting upon a public street
for their full length (see Figure 2-9).
Lot, Depth of: The average distance from the front lot line (i.e., road frontage) of the lot
to its opposite rear lot line measured in the general direction of the side lines of the lot
(see Figure 2-5).
Lot, Flag: A lot whose access to the public street is by a narrow, private right-of-way
that is either a part of the lot or an easement across another property and does not meet
the frontage requirements of the district in which it is located (see Figure 2-7).
Lot Frontage: The unbroken length of the front lot line which is contiguous to a public
street or private road.
Lot, Interior: A lot other than a corner lot which, with the exception of a "through lot",
has only one lot line fronting on a street (see Figure 2-7).
Lot Lines: The lines bounding a lot or parcel (see Figure 2-7). [amended 10/02]
Lot Line, Front: The line(s) separating the lot from any street right-of-
way, private road or other access easement. Such line shall be continuous
at least a sufficient length to conform with the minimum lot width
requirement of the district.
Front Lot Line, Principal: For a corner lot, the front lot line adjacent to
the street which the front door of the home faces (or is proposed to face).
Front Lot Line, Secondary: For a corner lot, the front lot line which is not
considered to be the principal front lot line.
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Lot Line, Rear: The lot line opposite and most distant from the front lot line. In
the case of a triangular or otherwise irregularly shaped lot or parcel, an imaginary
line at least ten (10) feet in length entirely within the lot or parcel, parallel to and
at a maximum distance from the front lot line. In the case of a corner lot, the lot
line opposite the principal front lot line.
Lot Line, Side: Any lot line other than a front or rear lot line.
Lot of Record: A parcel of land, the dimensions of which are shown on a document or map
on file with the County Register of Deeds or in common use by city officials, and which has
not been combined in use with another parcel or lot, which lawfully existed prior to the
enactment of this or a zoning ordinance previously in effect .
Lot, Through: An interior lot having frontage on two (2) more or less parallel streets (see Figure
2-4).
Lot Width: The horizontal distance between the side lot lines, measured at the two points where
the building line, or setback line, intersects the side lot lines.
Yards: The open spaces on the same lot with a main building, unoccupied and unobscured from
the ground upward except as otherwise provided in this Ordinance, and as defined herein.
[amended 10/02]
Front Yard: An open unoccupied space extending the full width of the lot, the depth of
which is the horizontal distance between the front lot line and the nearest point of the
building. In the case of lots abutting lakes, rivers, and canals, the front yard shall be that
side of the lot or parcel on the street side.
Rear Yard: A space extending the full width of the lot the depth of which is the horizontal
distance between the rear lot line and the nearest point of the main building.
Side Yard: An open space between a main building and the side lot line, extending from
the front yard to the rear yard, the width of which is the distance from the nearest point of
the main building.
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SECTION 404: AREA AND BULK REQUIREMENTS [amended 4/00]
1. Minimum lot size: 6,000 sq. feet
2. Density (see definition in Article II): 7 dwelling units per buildable acre.
3. Maximum lot coverage:
Buildings: 50%
Pavement: 10%
4. Lot width: 50 feet (shall be measured at road frontage unless a cul-de-sac, then
measured from setback).
5. Width to depth ratios: The depth of any lot(s) or parcel(s) shall not be more than
three (3) times longer its width.
6. Height limit: 2 stories or 35 feet.
Height measurement: In the case of a principal building, the vertical distance measured
from the average finished grade to the highest point of the roof surface where the
building line abuts the front yard, except as follows: to the deck line of mansard roofs,
and the average height between eaves and the ridge of gable, hip, and gambrel roofs (see
Figure 2-2). If the ground is not entirely level, the grade shall be determined by
averaging the elevation of the ground for each face of the building (see Figure 2-3).
7. Front Setbacks: [amended 1/05]
Minimum:
Expressway or Arterial Street: 30 feet
Collector or Major Street: 25 feet
Minor Street: 15 feet
Note: For minimum front setbacks new principal structures on minor streets may align
with existing principal structures in the immediate area even if the front setback is below
the minimum required.
8. Rear setback: 30 feet
9. Setback from the ordinary high water mark or wetland: 30 feet (principal structures
only).
10. Side setbacks:
1-story: 6 feet and 10 feet
2-story: 8 feet and 12 feet
Note, setback measurement: All required setbacks shall be measured from the right-of-
way line to the nearest point of the determined drip line of buildings. [amended 10/02]
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11. Zero lot line option: New principal buildings may be erected on the rear lot line
and/or one side lot line provided: [amended 10/02]
a. The building has an approved fire rating for zero-lot line development under the
building code.
b. The building has adequate fire access preserved pursuant to fire code
requirements.
c. The zero lot line side is not adjacent to a street.
d. A maintenance access easement is granted by the adjacent property owner and
recorded with the County Register of Deeds and provided to the zoning
administrator with the site plan or plot plan.
e. It is not adjacent to wetlands, or waterfront.
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DETERMINATION:
The following motion is offered for consideration:
I move 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/denied), based on the following
review standards (found in Section 2502 of the Zoning Ordinance) and subject to conditions:
a. 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.
b. 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.
c. 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.
d. 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.
e. That the alleged difficulty is not founded solely upon the opportunity to make the property
more profitable or to reduce expense to the owner.
f. That the requested variance is the minimum action required to eliminate the difficulty.
CONDITIONS
1. That the additions to the property must be complete within one year (Sec. 2504) or the
variance is void.
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Hearing, Case 2006-018: Request for a variance from Section 2331 Landscaping, Fencing,
Walls, Screens and Lighting, to allow barbed wire atop a fence.
BACKGROUND:
Applicant: Mike Fuller, Prien & Newhof
Property Owner: Verplank Dock Company
Property Address(location): 559 E. Western Ave.
Zoning: WM, Waterfront Marine
Current Land Use: Aggregate Storage and Underground Utility Contractor
Request: A variance request to leave 3 strands of barbed wire on fence as it presently exists.
STAFF OBSERVATIONS
1. The zoning of adjacent parcels is WM, Waterfront Marine with the exception of the adjacent
Fisherman's Landing which is zoned OSC, Open Space Recreation.
2. 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 the fence.
3. 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.
4. 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 the Zoning Ordinance requirements.
Had anyone contacted staff prior to beginning work we could 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.
5. 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 barbwire on top of the fence in question. If the Coast Guard then
required barbwire it seems likely they would send correspondence to that effect and a
variance request would seem more pertinent.
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6. 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 can not
find any requirements for barbwire 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.
7. 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 barbwire but instead mandates among other things, increasing perimeter patrols.
Even in areas that are designated as restricted areas, staff can not find any requirements for
barbwire fencing.
8. 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 still
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 barbwire. 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 barbwire on top of them. In fact one section of fence is at best only
four feet in height 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.
9. Staff has received no comments on this case.
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Application Page 2:
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Notice Map:
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Photos of Area Properties:
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Photos of Subject Property:
Looking Northeast Towards Front Gate
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Verplank Front Gate View
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Looking Southwest Towards Front Gate
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Looking Northwest form Giddings and East Western
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Fence Bordering Fishermens Landing
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Fence Bordering Fishermens Landing
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Photos of a recently constructed passenger ferry site.
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Provided Correspondance:
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Ordinance Excerpts: (emphasis added)
SECTION 2331: LANDSCAPING, FENCING, WALLS, SCREENS AND LIGHTING
[amended 4/00]
The intent of this section is to promote the public's health, safety, and general welfare by:
minimizing noise, air, and visual pollution; improving the appearance of off-street parking and
parking lots reducing heat, noise, and the glare of automobile and site lights; requiring buffering
between incompatible land uses: regulating the screening of property abutting public rights-of-way;
providing wind breaks, protecting and preserving the appearance, character, and value of the
business community and residential neighborhood areas; preventing soil erosion and soil depletion;
and promoting soil and water retention.
1. Scope: These requirements shall apply to all uses for which site plan review is required and
any other use so specified in this Ordinance. No site plan shall be approved unless said site
plan shows landscaping, berms, greenbelts, buffer zones, and screening consistent with the
requirements set forth herein.
2. Landscape Plan Required: A landscape plan shall be submitted as part of a site plan review
application. The landscape plan shall include, but not necessarily be limited to, the
following items:
a. Location, spacing, size and descriptions for each plant type proposed for use within
the required landscape area.
b. Typical straight cross-section including slope, height, and width of berms and
swales, type of ground cover, or height and type of construction of wall or fence,
including footings.
c. Significant construction details to resolve specific site conditions, such as tree wells
to preserve existing trees or culverts to maintain natural drainage patterns.
d. Identification of natural features, natural drainage areas, existing trees and vegetative
cover to be preserved.
e. Identification of areas to be grass or other ground cover and method of planting.
3. General Requirements:
a. A mixture of plant material, such as evergreen, deciduous trees and shrubs, is
required as a protective measure against insect and disease infestation. Landscaping
shall be multi-tiered with the use of canopy and understory species. Use of native
wildflowers and groundcovers other than traditional horticultural grasses is
encouraged.
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b. Areas used for storm drainage purposes, such as unfenced drainage courses or
retention areas in front or side yards, may be included as a portion of the required
landscaped area.
c. A means of protecting site trees against injury from mowing equipment and vehicles
shall be provided.
d. Plantings shall be used to screen service and storage areas and freestanding sign
poles.
e. Additional landscaping may be required adjacent to buildings to break up long
building expanses and walls void of windows.
f. Landscaping may be required to serve as windbreaks.
g. Landscaping shall be designed to blend with that on adjacent parcels where a
road, walkway or other pathway flows between parcels.
4. Landscape Elements: The following minimum standards shall apply:
a. Quality: Plant material and grasses shall be of generally acceptable varieties and
species for the area, free of insects and diseases and hardy to the climate. The
Zoning Administrator shall provide a suggested list of acceptable plant materials.
b. Waterfront Properties: Landscaping provided within a waterfront setback shall be
comprised of native species. A ribbon of at least 30-foot of buffer zone shall be
provided immediately adjacent to the waterfront to serve as a buffer for stormwater
runoff.
c. Placement: Landscaping shall be clustered and staggered rather than situated in
straight rows for interest and variety unless such placement is an integral part of a
design element, such as an alley of trees.
d. Berms and Swales: Berms and swales shall be constructed with slopes not to
exceed a 1:3 gradient with side slopes designed and planted to prevent erosion.
Slopes shall be protected with sod, seed, shrubs or other form of natural
groundcover. Berms shall have a rounded surface, which is a minimum of two (2)
feet in width at the highest point of the berm, extending the length of the berm.
Berms are not permitted adjacent to the waterfront.
e. Existing Trees: If existing plant material is labeled "To Remain" on site plans by
the applicant or required by the City, protective techniques, such as, but not limited
to, fencing or barriers placed at the dripline around the perimeter of the plant
material shall be installed during construction. No vehicle or other construction
equipment shall be parked or stored within the dripline of any plant material
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intended to be saved. Other protective techniques may be used provided such
techniques are approved by the City.
f. Preservation Required: All existing live trees in excess of twelve (12) inches in
diameter and at four and one half (4 ½) feet above the ground shall be preserved as
much as practical.
g. Replacement Required: Should any tree required by this ordinance to be preserved
or planted die, it shall be the responsibility of the owner/developer to replace the
dead tree with two (2) trees for every one tree lost with trees of a minimum of three
(3) inches in diameter four and one-half (4 ½) feet above the ground.
h. Retained Landscaping In Lieu of New Landscaping: Landscaping requirements
may be waived if the existing vegetation to be retained on site meets or exceeds
ordinance requirements for landscaping and screening.
5. Greenbelt Buffers:
a. All required side and rear setbacks shall be landscaped, greenbelt buffers, unless
zero-lot-line is employed for a structure or fire access. At least fifty percent of all
required front setbacks shall be landscaped and adjacent to the road right-of-way.
An average minimum greenbelt of 10 feet shall be maintained along all street
frontages. Greenbelt buffers shall be landscaped in grass, ground cover,
perennials, and/or other natural, living, landscape material. [amended 12/01,
amended 10/02]
b. All required front setbacks shall be landscaped with a minimum of one (1) canopy or
shade tree, two (2) understory or evergreen trees and (2) shrubs, for each thirty (30)
lineal feet (or major portion thereof) of frontage abutting the right-of-way. Access
ways from public rights-of-way through required landscape strips shall be permitted,
but such access ways shall not be subtracted from the lineal dimension used to
determine the minimum number of trees and shrubs required.
c. Deciduous canopy trees shall be a minimum of twelve (12) feet in height and a
minimum caliper of 2 inches at four and one-half (4 ½) feet above the ground.
Evergreen and understory trees shall be a minimum of six (6) feet high at planting.
6. Installation and Maintenance:
a. All landscaping and landscape elements shall be planted, and earth moving or
grading performed, according to accepted good planting and grading procedures.
b. Landscaped areas outside of stormwater management areas, native natural areas,
beaches, and dune areas may be required to be irrigated.
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c. The owner of property that is required to be landscaped by this Ordinance shall
maintain such landscaping in a reasonably healthy condition, free from refuse and
debris. All unhealthy and dead material shall be replaced.
7. Screening Between Land Uses:
a. Upon any improvement for which a site plan is required, screening shall be
constructed at least four (4) feet and up to six (6) feet in height may be required
along all adjoining boundaries with residentially zoned or used property. A
landscape buffer with berming, or landscaping with a fence or a solid wall may be
used to meet screening requirements.
b. Where there is a need to provide a greater noise or dust barrier or to screen more
intense development, a solid wall may be required. Such wall shall be constructed
on both sides with stone, face brick, poured-in-place simulated face brick, or precast
brick panels having simulated face brick.
8. Parking Lot Landscaping: Parking lots exceeding 5,000 square feet (including all
parking spaces, lanes, drives and other areas devoted to vehicular use) shall be
landscaped with at least one (1) landscape island. For each additional 5,000 square feet
(or each additional 20 spaces, whichever is greater) an additional landscape island shall
be required. Landscape islands shall be at least 180 square feet in size, with a minimum
width of three (3) feet. Landscape islands shall be landscaped with one (1) shade canopy
tree and three (3) shrubs for every eight (8) parking spaces. Canopy trees shall be a
minimum of twelve (12) feet in height with a minimum caliper of 2 inches at four and
one-half (4 ½) feet above the ground. [amended 10/00]
The Zoning Administrator may allow the substitution of bump-outs or other landscaping
elements in lieu of landscape islands, as long as the square footage, width, and
landscaping requirements are still met. [amended 10/00]
9. Loading Area Screening: All loading areas shall be fenced and screened whenever abutting
a residential use or district.
10. Mechanical Equipment Screening: (this subsection does not apply to single-family
residential uses, or to any use in an industrial land use category unless it abuts a residential
area.) When located outside of a building, support equipment including air conditioning and
heating devices, and water and gas meters, but not including plumbing or exhaust vents or
chimneys, are to be screened to the height of the particular piece of equipment, as follows:
a. Roof-Mounted Equipment: To be screened by architectural features from the view
of abutting streets and parcels.
b. Equipment at Grade: When located on the ground adjacent to a building,
mechanical equipment is to be screened by landscaping, a solid wall or fencing from
the view of the street or surrounding properties.
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11. Outdoor Storage Screening: Outdoor open storage of any equipment, vehicles and
materials, including waste and waste receptacles, shall be screened from public right-of-
way and residential uses or districts. Such storage shall not be located in the required front
setback. Commercial and industrial uses do not have to screen from one another. Front
yard fencing over 4 feet in height in commercial and industrial zones shall adhere to the
required front setback. A screen of up to six (6) feet but not less than four feet may be
required as part of a site plan review approval. [amended 10/02]
12. Fencing, all Districts: The placement of a fence requires a development permit or site
plan approval. Fencing shall be properly maintained. Fencing materials used as screening
shall consist of the following:
a. Solid board fences of standard commercial construction. The finished side of the
wood shall face abutting properties.
b. Open mesh fencing with woven slats, provided that is of standard commercial
construction.
c. Masonry walls designed and constructed to facilitate maintenance and not modifying
natural drainage in such a way as to endanger adjacent property that is of standard
commercial construction.
13. Placement: A wall, fence or yard enclosure may be erected on the lot line.
14. Height limitations: [amended 10/02]
a. Side and rear yards: In residential districts a wall, fence or yard enclosure may be
up to six (6) feet in height behind any building line of a structure which abuts a
street (see Figure 2.9).
b. Front yards: In any residential front yard (in front of any building line of a
structure which abuts a street), the height of a fence shall not exceed three (3)
feet, unless an open fence is provided (e.g., chain link, picket) in which case it
may be a maximum height of four (4) feet when such fence does not reduce
visibility or interfere with clear vision at intersections, alleys and drives.
c. Commercial and industrial districts: A wall, fence or yard enclosure may be up to
eight (8) feet in height behind the front building line of a structure. In a front yard
(in front of any building line of a structure which abuts a street), the height shall
not exceed six (6) feet and shall not reduce visibility or interfere with clear vision
at intersections, alleys and drives.
15. Barbed wire: No person shall place, string or maintain barbed wire as part of any
fence, other work or structure in any zoning district unless approved by the
Planning Commission as part of an authorized special use. No barbed wire shall be
permitted in any historic district.
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16. Corner Clearance: [amended 8/05] The following regulations shall apply to all
landscaping, fences, walls, screens, or similar devices at street intersections or driveways:
a. No fence, wall, sign, or screen or any planting shall be erected or maintained in such
a way as to obstruct vision or interfere with traffic visibility on a curve, or within
twenty-five (25) feet of the right-of-way of a street.
b. No fence, wall, sign, screen or planting shall be erected or maintained in such a way
as to obstruct vision, between a height of three (3) and ten (10) feet, within twenty-
five (25) feet of the right-of-way of a street.
c. No structure, hazard or obstruction shall be placed or maintained in the right-of-way,
except as may be approved by the city.
17. Fire Hazard: No fence or wall shall be approved which constitutes a fire hazard either of
itself or in connection with the existing structures in the vicinity, nor which will interfere
with access by the Fire Department in case of fire to buildings in the vicinity or which will
constitute a hazard to street traffic or to pedestrians.
18. Waterfront Walls and Fences: No fences or walls shall be erected in the waterfront setback.
Obscuring walls and fences shall not be placed parallel to the waterfront. Approved fences
and walls shall be limited to three (3) feet in height in waterfront yards.
19. Exceptions to Fencing and Screening Requirements:
a. Buildings Abutting Lot Lines: Required screening or fencing may be omitted along
any lot line where a building wall exists immediately abutting the lot line.
b. Existing Screening: Any fence, screen, wall or hedge which does not conform to the
provisions of this Section and which is legally existing at the effective date of this
Ordinance may be continued and maintained, provided there is no physical change
other than necessary maintenance and repair in such fence, screen, wall, or hedge
except as permitted in other sections of this Ordinance.
c. Planning Commission Modification: Landscaping may be waived or modified
provided the Planning Commission first makes a finding that specifically identified
characteristics of the site or site vicinity would make required landscaping, fencing
or screening unnecessary or ineffective, or where it would impair vision of natural
amenities.
20. Outdoor lighting in all districts: [amended 1/05] Outdoor lighting in newly developed
commercial and industrial uses, subdivisions, condominium projects and planned unit
developments, or replacement lighting for such developments and institutional uses, shall
be designed and constructed in such a manner to insure that:
a. Direct or directly reflected light is confined to the development site.
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b. All light sources and light lenses are shielded.
c. No light sources or light lenses are directly visible from beyond the boundary of
the site.
d. Lighting fixtures shall be a down-type having one hundred percent (100%) cut
off. The light rays may not be emitted by the installed fixture at angles above the
horizontal plane, as certified by the manufacturer's photometric test.
e. Light sources shall be high-pressure sodium or halogen. Approved exceptions
shall use warm white or natural lamp colors.
f. Lighting shall be equipped with baffling or other devices to assure that the above
requirements are achieved.
g. The applicant shall submit the specifications for the lights, poles, fixtures and
light sources to the City for approval prior to installation.
h. The height of light poles shall not exceed twenty-five (25) feet as measured from
average grade.
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SECTION 2203: NONCONFORMING STRUCTURES
Where a lawful structure exists at the effective date of adoption or amendment of this Ordinance
that could not be built under the terms of this Ordinance by reason of restrictions on area lot
coverage, height, yards, parking or other characteristics of the structure or its location on the lot,
such structure may be continued so along as it remains otherwise lawful, subject to the following
provisions:
1. No such structure may be enlarged or altered in a way which increases its nonconformity,
except when authorized by the Planning Commission, after Public Hearing as required
for Special Uses. The Planning Commission shall be authorized to determine the amount
of enlargement of any building or structure, consistent with the intent of this article. The
nonconforming structure may be changed to an extent not exceeding thirty percent (30%)
of the total floor area of the existing building at the time of enactment of the Ordinance
from which this chapter is derived, or at the time of its amendment making a structure
nonconforming.
2. No nonconforming building or structure shall be moved in whole or part to any other
location unless such building or structure and the off-street parking spaces, yard and other
open spaces provided, are made to conform to all the regulations of the district in which
such building or structure is to be located.
3. Changes of tenancy, ownership or management of any existing nonconforming structures
may be made, provided that there is no change in the nature or character of the
nonconforming structure.
4. Repair and maintenance work may be performed as required to keep a nonconforming
building or structure in a sound condition.
5. In the event any nonconforming building or structure is damaged by fire, wind, civil
disobedience, or an Act Of God or the public enemy, it may be rebuilt or restored,
provided the cost of such structural alteration or structural repairs shall not exceed
seventy-five (75) percent of it’s replacement cost. The buildings or structures shall be
built in conformance with the requirement of the zoning district in which they are
located.
6. Once any nonconforming structure is removed from the property, its
nonconforming status has expired and it may not be replaced on the property.
Defintion of Structures:
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Structure: Anything constructed or erected, the use of which requires location on the ground or
attachment to something having location on the ground. Satellite dishes over 24 inches in
diameter and antennas shall be considered as structures.
DETERMINATION:
The following motion is offered for consideration:
I move that the findings of fact determined by the Zoning Board of Appeals be adopted and
that the variance request to allow three strands of barbwire on top of the new fence, be
(approved/denied), based on the following review standards (found in Section 2502 of the
Zoning Ordinance) and subject to conditions:
a. 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.
b. 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.
c. 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.
d. 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.
e. That the alleged difficulty is not founded solely upon the opportunity to make the property
more profitable or to reduce expense to the owner.
f. That the requested variance is the minimum action required to eliminate the difficulty.
CONDITIONS
1. That the additions to the property must be complete within one year (Sec. 2504) or the
variance is void.
2. Minor Site Plan review process is applied for and approvals issued.
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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.
BACKGROUND:
Applicant: Christopher Kelley, Parmenter O'Toole Law Firm
Property Owner: Christopher Kelley, member of Newacre LLC
Property Address(location): 601 Terrace Street
Zoning: B-3, Central Business and a Planned Unit Development
Current Land Use: Law Firm
Request: An Ordinance interpretation for Section 2331 (20) Outdoor Lighting.
STAFF OBSERVATIONS
1. Staff has inadvertently accepted this case due to it being turned in just a few hours prior to
the advertising deadline of 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
docket. 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. Christopher Kelley on September 12, 2006 at
2:26 p.m. Staffs concern regarding the timeliness of this appeal goes beyond this case and its
merit's, but 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 limits for appeal, the
applicant's variance request would still be heard by the ZBA.
2. The subject property is located in a Planned Unit Development with an underlying zoning of
B-3, Central Business. The adjoining property to the northwest is a residential condominium
development, Muskegon Lake is to the North and vacant property to the south.
3. 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.
4. This type of case differs from ordinary Zoning Board of Appeals decisions in that this does
establish precedence. The board is in effect determining the intent of the ordinance language.
Unless the Planning Commission changed the language again and that change was later
adopted by the City Commission, the interpretation of the ZBA becomes the procedure and
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intent that staff must use in judging all further lighting issues.
5. The lighting in question was not a part of the approved site plan for the development, or even
shown on the original site plan, 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 still
not part of the final site plan review either.
6. The applicant contends that their fixtures are in fact "down-type" yet all the fixtures emit
light vertically from the horizontal. In other words if the grade the fixtures are installed upon
is zero degrees all light emitted from the fixtures is above that zero degree plane. This zero
degree plane is also known as the "horizontal plane". Furthermore, the applicant contends
that the "horizontal plane" referenced in the ordinance is that of the building. Staff does not
agree. This term has been discussed before the Zoning Board of Appeals during a previous
request for interpretation by Hackley Hospital with the term being understood by all to be
located at the fixture. The actual language containing the term horizontal plane is in Section
2331 item 20d. "Lighting fixtures shall be a down-type having 100 percent (100%) cut off.
The light rays may not be emitted by the installed fixture at angles above the horizontal
plane, as certified by the manufacturer's photometric test." This sentence only references to
the fixture and does not reference a building or structure. The same sentence also references
certification by a manufacturer's photometric test, a test of this nature is not something
normally performed on a building or structure. A photometric test shows the radiation of
light above the light fixtures plane. It is now and has been staffs' opinion that the horizontal
plane is that of the fixture and not the building.
7. Reference is made to three other locations in the city where there are various types of
lighting. The first being the new lights installed along Western Avenue by the City of
Muskegon. The City of Muskegon is in fact exempt from it's own ordinance but has
committed to the dark sky concept and has attempted to balance the need to provide area
lighting for the safety of pedestrians and motorists using the streetscapes, while still
adhering to the dark sky concepts. I have attached a copy of the Request for Quotation, Site
Lighting specifications for your review and this document further shows the city's intent to
use dark sky type fixtures on the Western Avenue project. 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.
The second reference made is to the Walgreen's store located at Henry and W. Sherman.
This site was built prior to the current ordinance language amendment. Staff acknowledges
that the fixtures used at this location are a very good example of shielded lighting fixtures,
which if used properly will meet our current ordinance requirements. Like any type of
fixture, if not mounted or aimed properly they can still violate our current ordinance by
directing light above the horizontal plane. If these lights had been mounted slightly higher
they would comply with our current ordinance and achieve the goal of being able to wash the
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building face with light. Because these were installed prior to our current ordinance
language staff feels we are unable to force Walgreen's to reposition the lights.
8. The Third site the applicant references is Hackley Hospital's building lighting. The current
ordinance language has been in place and was adopted by city commission on January 25,
2005. The ordinance at the time of Hackley Hospital's site plan approvals in 2004 referenced
street lighting in its language and not outdoor lighting, staff had been enforcing it as they felt
it was intended but the applicant disagreed and filed an appeal. Since the Zoning Board of
Appeals felt the language was not clear in 2004 the board ruled in the hospitals favor and
allowed the wall wash lights to remain in place since there site plan had been approved prior
to the new ordinance language of January 2005. At no time during the Hackley Hospital case
were the definitions of down-type 100 percent cut off or horizontal plane brought into
question.
9. Staff conducted a lighting survey of businesses in the immediate area and found that National
City Bank building and the Grand Valley building both use lighted wall washing techniques
that comply with our ordinance, even though both were built before our current ordinance
revision.
10. Staff has received no comments on this case.
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Notice Map:
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Photos of Property:
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Verticaly aimed lights.
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Verticaly aimed lights.
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Angled style lights.
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Angled style lights.
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National City Building
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GVSU Building
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Western Avenue
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Ordinance Excerpts: (emphasis added)
SECTION 2503: APPEALS, APPLICATIONS, FILING PROCEDURE AND FEES [amended
3/97] [amended 11/06]
An application or appeal to the ZBA in cases in which it has original jurisdiction under the
provisions of this ordinance or state law, may be taken by any aggrieved parties, including a
property owner or tenant, or by a governmental office, department, board or bureau. Such
application or appeal shall be filed with the Zoning Administrator, who shall transmit the same,
together with all the plans, specifications and other papers pertaining to the application, to the
ZBA.
Such application or appeal shall specify the grounds for appeal, or reason for application, and be
accompanied by a filing fee in the amount specified in the City's Master Fee Schedule as adopted
by a resolution of the City Commission and in effect at the time of application.
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.
All applications for appeals or interpretations shall specify the grounds for appeal or reason for
interpretation.
The ZBA shall decide all applications and appeals within thirty (30) days after completion of the
hearing thereon, and such decision shall become effective upon certification of the resolution of
the ZBA.
An appeal shall stay all proceedings in furtherance of the action appealed from, unless the
Zoning Administrator certifies to the ZBA after notice of appeal shall have been filed with him,
that by reason of facts stated in the certificate a stay would, in his opinion, cause imminent peril
to life or property. In such case, proceedings shall not be stayed otherwise than by a restraining
order which may, on due cause shown, be granted by the ZBA or by the circuit court on
application, after notice to the Zoning Administrator. The decision of the ZBA on an appeal
shall be final. However, a person having an interest may appeal to the circuit court.
No application for a variance which has been denied, wholly or partly, by the ZBA shall be
resubmitted for a period of one (1) year from the date of the last denial, except on the grounds of
newly discovered evidence or proof of changed conditions found upon inspection by the Zoning
Administrator to be valid.
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DETERMINATION:
The following motion is offered for consideration:
I move that the Zoning Administrator’s interpretation of the Zoning Ordinance Section 2331
Landscaping, Fencing, Walls and Lighting regarding the horizontal plane and down-type lighting
is (upheld/reversed).
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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.
BACKGROUND:
Applicant: Christopher Kelley, Parmenter O'Toole Law Firm
Property Owner: Christopher Kelley, member of Newacre LLC
Property Address(location): 601 Terrace Street
Zoning: B-3, Central Business and a Planned Unit Development
Current Land Use: Law Firm
Request: A variance request to allow Parmenter O'Toole to illuminate its building through the
use of in-ground lighting.
STAFF OBSERVATIONS
1. The subject property is located in a Planned Unit Development with an underlying zoning of
B-3, Central Business. The adjoining property to the northwest is a residential development
currently under construction, Muskegon Lake is to the North and vacant property to the south
2. 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.
3. The lighting in question was not a part of the approved site plan for the development, or even
shown on the original site plan, 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.
4. When the final site plan was submitted for review in March 2005 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 approvals.
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5. 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.
6. Staff feels the intent of this ordinance language is very clear and had revised the language to
make it as clear as possible and 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 that 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.
7. 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 that are
mentioned by the applicant do not fall under the jurisdiction of the Zoning Ordinance.
Nevertheless, the city has 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 condominium directly adjacent to the
parking lot of the applicants. Additionally, while the applicant is a staff member of the city
attorneys' law firm, staff does not necessarily agree with their interpretations of our
ordinance.
8. 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.
9. 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
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the type of lighting that is acceptable for building wall wash applications.
10. Staff has not received any comments on this case.
Notice Map:
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Zoning Adminstrators written opinion
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Western Ave, Bid Specifications Excerpt:
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Photos of Property:
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Verticaly aimed lights.
Illustration 1
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Verticaly aimed lights.
Illustration 2
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Angled style lights.
Illustration 3
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Angled style lights.
Illustration 4
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City Lighting on Western Ave.
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National City Building
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GVSU Building
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Western Avenue lighting.
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Ordinance Excerpts: (emphasis added)
SECTION 2331: LANDSCAPING, FENCING, WALLS, SCREENS AND LIGHTING
[amended 4/00]
The intent of this section is to promote the public's health, safety, and general welfare by:
minimizing noise, air, and visual pollution; improving the appearance of off-street parking and
parking lots reducing heat, noise, and the glare of automobile and site lights; requiring buffering
between incompatible land uses: regulating the screening of property abutting public rights-of-way;
providing wind breaks, protecting and preserving the appearance, character, and value of the
business community and residential neighborhood areas; preventing soil erosion and soil depletion;
and promoting soil and water retention.
1. Scope: These requirements shall apply to all uses for which site plan review is required and
any other use so specified in this Ordinance. No site plan shall be approved unless said site
plan shows landscaping, berms, greenbelts, buffer zones, and screening consistent with the
requirements set forth herein.
20. Outdoor lighting in all districts: [amended 1/05] Outdoor lighting in newly developed
commercial and industrial uses, subdivisions, condominium projects and planned unit
developments, or replacement lighting for such developments and institutional uses, shall be
designed and constructed in such a manner to insure that:
a. Direct or directly reflected light is confined to the development site.
b. All light sources and light lenses are shielded.
c. No light sources or light lenses are directly visible from beyond the boundary of
the site.
d. Lighting fixtures shall be a down-type having one hundred percent (100%)
cut off. The light rays may not be emitted by the installed fixture at angles
above the horizontal plane, as certified by the manufacturer's photometric
test.
e. Light sources shall be high-pressure sodium or halogen. Approved exceptions
shall use warm white or natural lamp colors.
f. Lighting shall be equipped with baffling or other devices to assure that the above
requirements are achieved.
g. The applicant shall submit the specifications for the lights, poles, fixtures and
light sources to the City for approval prior to installation.
h. The height of light poles shall not exceed twenty-five (25) feet as measured from
average grade.
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DETERMINATION:
The following motion is offered for consideration:
I move that the findings of fact determined by the Zoning Board of Appeals be adopted and
that the variance request to allow light fixtures that emit light above the horizontal plan and are
not down type 100% cut-off fixtures, be (approved/denied), based on the following review
standards (found in Section 2502 of the Zoning Ordinance) and subject to conditions:
a. 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.
b. 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.
c. 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.
d. 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.
e. That the alleged difficulty is not founded solely upon the opportunity to make the property
more profitable or to reduce expense to the owner.
f. That the requested variance is the minimum action required to eliminate the difficulty.
CONDITIONS
1. That the additions to the property must be complete within one year (Sec. 2504) or the
variance is void.
2. Site plan approvals are received.
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