LT Twp Zoning Minutes

Little Traverse Township>Zoning Board Agendas & Minutes>2007 Minutes>12-03-07

Little Traverse Township Zoning Board December 3, 2007 7:30 P.M. At the Township Hall Chairman Joe Chattaway called the meeting to order at 7:30 PM. Roll call: Jean Beckley, present Joe Chattaway, present John Johnson, present Ed Shepherd, present Marty Van Berlo, presentAbsent: noneAlso present were Randy Frykberg, Jane Taylor, George Spanos, Bill Dohm, Lynda Arman, Wayne Allerding, Ken Garver, Connie O’Neill, Joe Leach and several guests- see attached list. Minutes:Beckley motioned to approve the minutes as presented and was supported by Van Berlo. Approved by voice vote. There was no objection to the agenda as presented. Case #B-10-2007Conduct a Public Hearing on an application by Mark Smith, DBA Blue Moon to convert an existing residence at 8930 M-119 to Professional Offices.Randy Frykberg reviewed the case saying Mark Smith, DBA Blue Moon, has requested permission to convert and existing residence into Professional Offices. This is a principal use allowed subject to special conditions. The proposal also includes removal of a garage, addition of parking, new landscaping and removal of one driveway. The .58 –acre parcel is in the R-2 General Residential Zoning District. Because the encroaching garage will be removed, all setbacks are exceeded. Drainage calculations for a 50-year storm have been presented. Storm water will be handled on site by two retention and infiltration areas. The existing well and septic will be retained. The 24’X44’ house will be converted to Professional Office Space. The ingress/egress from M-119 will be upgraded to MDOT requirements and will be curbed and paved. The front will be landscaped between the parking lot and bike path. Fourteen parking spaces are shown. Requirements are 1 parking space per 200 square feet of useable floor space plus one per employee. The building has 1,600 square feet of useable space which requires 8 parking spaces and would allow for up to 6 employees. Chairman Chattaway opened the Public Hearing. Bryan Nolan, Benchmark Engineering presented a revised site plan depicting the MDOT requirements for the driveway. Bryan Nolan noted there are no buildings within 100 feet of this project.Jean Beckley was concerned with visibility coming out of the driveway, the additional traffic this would generate on an already heavily traveled road. Mark Smith said the driveway will be consolidated with the existing drive on southern side of this lot now serving the existing duplexes behind this parcel. He said the pines in the front would be removed and replaced with low yews or shrubbery that would remain small so as not to obstruct traffic visibility for either vehicles on the road or users of the bike path. Frykberg noted there are large pines on the front of the back parcel that screens the front lot from the back. Van Berlo questioned the visual impairment of the proposed sign location. Mark Smith said he could move the sign north, farther away from the drive entrance. Frykberg stated that any signage would need to come back to the sign committee for approval and any issues could be dealt with at that time. The Public hearing was closed.Johnson motioned to approve the application by Mark Smith, DBA Blue Moon, to convert and existing residence at 8930 M-119 to Professional Offices, parcel # 24-08-16-15-300-011 as it meets the requirements of the Zoning Ordinance. The large pines obstructing view on bike trail will be removed and replace with low profile landscaping. The sign and sign location will come back To the sign committee for approval. Motion support came from Van Berlo. Roll call vote; Beckley, no; Shepherd, yes: Johnson, yes; Shepherd, yes; Van Berlo, yes. Approved. Beckley explained her no vote was for traffic safety reasons. Case #B-9-2007 Conduct a joint informational meeting with the Township Board and Zoning Board of Appeals to review material relating to potential negative secondary affects caused by Sexually Oriented Businesses ( SOBs) that may operate within the Township. At this point Supervisor Dohm called the Township Board to Order. Roll call showed Wayne Allerding, Lynda Arman, Bill Dohm, Ken Garver, and Connie O’Neill present. Absent; None. Allerding motioned to have the Zoning Board minutes of this meeting incorporated into the Township Board minutes. Motion support came from Garver and was approved by voice vote. Supervisor Dohm explained the objective of the meeting is to establish a legislative history so that Township Officials become familiar with the negative secondary effects studies, judicial decisions, and investigative reports as they relate to regulating SOBs. Dohm presented a hard copy and digital exhibits available to support the objective.Supervisor Dohm introduced an audio recording and accompanying PowerPoint presentation of a teleconference held with Mr. Scott Bergthold, Special Council, and the Emmet County Planning Commission at their meeting of February 19, 2007 at 7:30 P.M. The following is an extract from the minutes of that meeting that accurately depicts the content of that teleconference in its entirety. Teleconference Audio CD and PowerPoint presentation with Scott D. Bergthold, P.L.L.C. [ Michalek introduced Mr. Bergthold and explained that the purpose of the meeting is to answer any questions on the information that the Planning Commission has received regarding Sexually Oriented Businesses (SOBs) and to discuss the negative secondary effects of SOBs. Mr. Bergthold explained that the PowerPoint slide show contains information on different court cases and he would be explaining some of the background behind the decisions and how they will affect the County in their process of writing a SOB ordinance. The first case discussed, Renton v. Playtime Theatres, was a case decided in Washington in 1986 in which the Washington Supreme Court stated that there are negative secondary effects with these types of businesses and said that the city didn’t have to wait until those effects occurred in their neighborhood before they could go about regulating them. Mr. Bergthold explained the various sources used to get data on the secondary effects. These include land use studies, crime reports, judicial opinion, investigator affidavits (undercover investigation reports), and anecdotal reports (input from the public). He explained that when referring to judicial opinion, the Supreme Court has made it clear that other jurisdiction’s judicial opinions may be used. The types of secondary effects were defined. These may include diminished property value or growth in property values, adverse impacts on nearby commercial or residential sites (from behavior of patrons, explicit material being discarded in alleys, etc.), personal and property crimes (vandalism, auto theft, muggings, etc.), lewdness, public indecency, illicit sexual activity, potential spread of disease, and litter, noise, blight and aesthetic impact. The rationale for regulating the secondary effects of adult businesses was discussed. The Supreme Court has made it clear that these businesses cannot be banned but can be controlled. Mr. Bergthold explained that the secondary statement states that this is not a comparative analysis between sexually oriented and non-sexually oriented businesses. The ordinance would be regarding adult businesses only. It would not regulate non-sexually oriented businesses that may have issues; such as bars or nightclubs. Samples of some of the cases relied upon when drafting the ordinance were referred to. City of Littleton v. Z.J. Gifts in Colorado references licensing of SOBs and conduct regulations. California v. LaRue refers to prohibition of alcohol consumption combined with nudity. Samples of some of the cases that deal specifically with adult bookstores were discussed. Mr. Bergthold explained that although the argument is often made that an organization, such as an adult bookstore, is a clean, upscale retail operation, there is documentation that states that there are still negative secondary effects with bookstores regardless of what is inside the building. Some of these include property owner complaints, loss in property values, etc. Another case, ILQ Investments, Inc. v. City of Rochester gave the right to regulate hours of operation. Various cases from the 6^th Circuit Court that handles TN, OH, KY, & MI were discussed. Some of the rulings stated that strip club patrons can be required to be separated from the entertainers, and others regulated peep show booths. Mr. Bergthold discussed the various studies that have been provided to the Planning Commission. He noted that although the reports regarding secondary negative effects are from multiple cities varying in size and population, the adult businesses operate the same way, and the secondary negative effects are not dependent upon the size of the community. He mentioned that one of the cases in Austin, TX noted that many of the patrons of these businesses were from other communities. This may be of particular relevance to Emmet County do to the high tourist presence. Mr. Bergthold concluded by stating that the findings of secondary effects from SOBs are scientifically robust. The County has a substantial government interest in regulating adult businesses to prevent these effects. The sexually oriented businesses industry have funded counter-studies that state that there aren’t any negative effects and the having these businesses is good for the community, however their claims are based in false or misleading data. For example, they may quote that there aren’t many calls for service to a business, however, most crimes such as prostitution and drug use are vice crimes and aren’t reported through calls for service. Mr. Bergthold asked that all material passed out prior to this meeting be made part of the record for this meeting. a. Planning Commission Questions for Mr. Bergthold Neal stated that when looking at the negative secondary effects there isn’t really any place within the County that would be acceptable to be zoned for this purpose. The secondary effects are not acceptable anywhere. Bergthold stated that the Supreme Court has said that these businesses have secondary effects. They recognize the effects but the impacts of these effects can be controlled by placing these businesses in the least problematic areas of a community. The SOBs should probably not be placed near sensitive land uses such as churches, schools, daycares, etc. It is better to place them in a higher intensity district, perhaps near other types of businesses that have secondary effects as well. Neal asked if there is a quota on the SOBs. Bergthold stated that there isn’t a quota. These would be uses by right, there would be no public hearings, however it is up to the County to tell them where in the County they can be. Jones asked about Townships, Villages, and Municipalities regulating the hours of operation and licensing. What all can be controlled? Bergthold stated that the township can control a lot more with general police power. They can enact regulations similar to what a city could do. In Grand Rapids, MI for example, there were regulations that prohibited lap dances, 23 hour operation, and restrictions on liquor. Alexander asked who makes the determination of the areas in which a SOB can be located? Do we have to allow them to be in high traffic areas? Where does the ‘fair and reasonable’ come in to play?Bergthold stated that the courts make the location determinations and they don’t specify that they have to be in a specific zoning district. The courts did strike down an ordinance in Grand Rapids, MI because they only allowed SOBs in 6 out of 2500 commercial parcels. The courts found that to be very inadequate. They advised that commercial space has to be allowed and also, that they have to be allowed to compete in the real estate market. Other cases have said that the relevant real estate market has to include parcels that a local commercial real estate agent would consider a part of the market. If it is a site that cannot be reasonably used, it won’t count. The parcels have to be an area where another business type would go.Alexander asked if any consideration is given that Emmet County is a family oriented, tourist area? Bergthold stated that one judge could say that it is a moral judgment and another judge could say that it makes sense to allow for these businesses. An adult bookstore is protected by first amendment where as a slaughterhouse or some similar use wouldn’t be. If the recommended districts are in the middle of major tourist areas, they shouldn’t be chosen. It’s a case of the lesser of two evils. Neal asked if it would be ok for townships and municipalities to team up and create ordinances that are consistent throughout and sequence them so that they all go live at the same time. Bergthold stated that yes this would work and it has been done in the past. The townships adopted the same or very similar ordinances and worked with the County. This would basically adopt a County-wide ordinance, but they still have to have reasonable area to operate SOBs in the County.b. Conclude Teleconference with Mr. BergtholdMichalek reminded everyone that Mr. Bergthold will be at the Emmet County Fairgrounds on the 29^th of March at 6:00 p.m. for the public hearing to answer further questions. Michalek and the Planning Commission thanked Bergthold and signed off. c. Public Comment to Planning CommissionScott opened the floor to public comment. Michalek explained that there are maps of the County set up around the room that show where the adult businesses could go. He advised that the maps are available from the Planning & Zoning office. Joe Hoffman, Bear Creek Township stated that he found this teleconference to be informative. He can see the benefits to liquor enforcement. He likes the idea of the townships getting together to create an ordinance, this would also help the townships financially as they could possibly hire one attorney. Bob Cardinal, Readmond Township asked who would enforce a township ordinance should it be developed. Kathy Abbott stated that it would depend on how it was set up. Some townships have municipal civil infractions. She stated that the townships should have the assistance of an attorney to determine this. She explained that Emmet County doesn’t have police powers so that is why the township would have to develop and enforce an ordinance if they chose to do so. Perhaps resources could be combined between the townships. She mentioned that they may be able to get some help from liquor control commission as Michigan already has some regulations in that regard. Michalek showed the breakdown of the available acreage and parcels for SOBs on B-2, B-3, I-1, and I-2 zoned properties. A total of 19.4% of those properties are available throughout the County and 21.6% of acreage would be available for SOB use. Kathy Abbott added that herself and staff have spent a lot of time and worked via telephone conference with Bergthold to prepare the maps of available parcels for SOB use. This was done in preparation for review of the draft ordinance. She stated that it should be kept in mind that anytime an SOB locates or a sensitive land use is placed, the map would have to be changed and re-evaluated. Michalek stated that this map reflects the land under County zoning only. The setback distances from sensitive land uses are identified on the maps. There are approximately 112 parcels in 14 general areas of the County that are available for SOB use at this time. Anderson asked if all of these locations were taken, would more have to be provided. Michalek stated that, yes, they would have to allow more locations if the market warranted it. Alexander asked if there was a certain percentage of land that was acceptable to have available for these uses. Abbott explained that there is no set percentage; it is subjective to the market. If the market warrants more locations, more would have to be added. Michalek reminded again that the first public hearing on amending this section of the ordinance will be on March 1, 2007. Bergthold will be in person at the March 29, 2007 meeting at the fairgrounds. Supervisor Dohm then explained that the Zoning Board had been given a copy of the Emmet County Planning Commission meeting minutes of February 19, 2007, March 1, 2007, and the Emmet County Board of Commissioners meeting of March 29, 2007 containing information relative to SOBs. Supervisor Dohm then introduced three additional more recent court cases pertinent to some of the decisions facing the Township in making decisions regulating SOBs. They are: 1.) H.D.V. –Greektown, LLC v. City of Detroit, 2.)TOLLIS INC> v. County of San Diego, and 3.) FANTASYLAND VIDEO, INC. v. County of San Diego. Township attorney, George Spanos, discussed procedure options for processing SOB applications and permits. He also reiterated important points covered in the above three additional court cases. Supervisor Dohm then presented land area, parcel count, and percentage data, as well as land use maps indicating potential sites available for SOBs based on standards set forth in Draft #3 of a proposed zoning ordinance amendment. It was generally agreed that modifications should be made by staff to Draft #3 to reflect concerns relative to timely processing SOB applications, and use districts, (B-1). It was further agreed by consensus that the Zoning Board should proceed with a Public Hearing on the Ordinance Amendment proposal at their Regular meeting to be held January 7, 2008. Open Discussion for issues not on the agenda:a. Correspondence received- Planning Commission Journal and Zoning Bulletinsb. Zoning Board Members- no commentsc. Public comment- no comments. Adjourn: Supervisor Dohm adjourned the Township Board at 9:30 PM. Chairman Chattaway adjourned the Zoning Board at 9:30 PM. Respectfully submitted,