Planning Commission Discusses Non-Conforming Use, Noise & Smoke
IRONWOOD, MI - Thursday, September 2, 2010 - The Regularly Scheduled Meeting of the Ironwood Planning Commission was held on Wednesday, September 1, 2010, in the Community Development Conference Room on the Second Floor of the Ironwood Municipal Memorial Building, Ironwood, Michigan.
1. Call Regular Meeting to Order - Planning Commission Chairman John Wyssling called the meeting to order at 5:30 PM, and he asked Planning Commission Secretary Jane Bowman to record the roll.
2. Recording of the Roll - Roll was taken and Ms. Bowman reported that all members were present: Chairman John Wyssling; Tom Bergman; Jackie Powers; Margaret Rayner; Courtland Gieb; Eric Lytwyniuk; and LeRoy Johnson. Also present for the meeting were ex-facto member Rick Semo; City Attorney Dennis Cossi and City Assessor/Building Inspector Dennis Hewitt. The only reporter present at the meeting was yours truly.
3. Consider approval of the August 4, 2010 Regular Meeting Minutes - After the Commissioners briefly reviewed the minutes of the August meeting, they unanimously approved them as presented.
4. Approval of the Docket - The docket was unanimously approved as well.
5. Citizens wishing to address the Commission on Agenda Items (3 Minute Limit) - Mr. Ed Martinson and Mr. Joe Vairus asked to speak on Item #6. Mr. and Mrs. Misuraco asked to address the Commission regarding outdoor furnances.
OLD BUSINESS
6. Update on Trailer Factory Area - Chairman Wyssling started off by explaining the the City is in the process of researching the zoning of the former trailer factory propery.
Ed Martinson explained that things were much improved in the area, however the plastic on the dirt pile has blown off and much of the stockpiled asphalt has been removed. He said dust hasn't been an issue this summer, largely due to the fact that the area has had so much precipitation. Although there appears to be an improvement in the area, Martinson expressed concern that more materials will be stockpiled there in the near future -- possibly causes problems.
Joe Vairus explained that he attended the meeting to hear what progress has been made on the issue. Wyssling explained that much of the delay is due to the fact that the City is currently without a Community Development Director.
Tom Bergman initiated a discussion about adding a section to the existing zoning ordinance.
"We don't have anything in our ordinance right now that talks about when a change takes affect from one zoning to another." Dennis Hewitt explained. "It's a non-conforming use, with the current zoning. So if we can, with this other section we'd be adding, we can put a time limit on there, where if it's not used as industrial or whatever, and then it would revert to the zoning. It'd be like a twelve month period or whatever. It's a legal non-conforming use."
Bergman said, "I'm a little fuzzy on how this is a 'legal use.' I understand there was a change in the zoning classification, and that the old zoning classifcation was 'industrial' and then it changed to 'commercial,' and that the current use is non-conforming to 'commercial.' I understand all that. Now I understand what I think the logic of all this is that, because it was zoned 'industrial' that use is carried over, and I can understand that. But it sounds like the use that is currently being used started after the change in zoning. If that's the case, it sounds like that's an illegal use because it happened after the zoning change."
"'Industrial' is kind of a throw-all term..." Bergman continued.
"Here's what you're missing, and I'll tell you what's missing in the ordinance... at least up until now." City Attorney Dennis Cossi interupted, "Once it's zoned and once you're in there, even if the zoning changes, you still get to do what you were doing, unless there's a provision in the zoning ordinance -- and I don't know why we don't have it... to be perfectly frank with you, every other zoning ordinance I've ever seen... I think the City hired somebody back ten years ago or something to redo all the ordinances, and it appears to be missing... but there's usually a provision called "Non-Conforming Uses." And that says if there's a zoning change you're allowed to continue doing the uses you had unless you abandon it for -- usually there's a period -- like for one year."
"But, that's abandonment of the property." Bergman responded. Cossi disagreed. Bergman asked what the use of the property was when the zoning district changed in 2000. "What was the use on the property, not the zoning -- the use?"
Cossi went on to explain that the "Non-Conforming Uses" provision generally allowed an entity to continue using a parcel of land after a zoning change as they had been using the land prior to the zoning change, UNLESS the entity ceases that particular use of the land for a period of one year.
"We do not have that provision in our zoning ordinance, and we should!" Cossi remarked. He sited a hypothetical example. If a landowner operated a factory on a parcel of land that was originally zoned as 'industrial' and the zoning changed to 'commerical' while the factory was in operation the landowner had the right to continue operating the factory. If however, the landowner closed down the factory for a period of one year, he would not be allowed to re-open the factory because the property was no longer zoned 'industrial.'
"That's not the situation here," Berman countered, "They're using it to stockpile materials." He went on to say that the first thing the Commission needed to establish is what the current use is.
"What is the permitted use that the landowner is using it for?" LeRoy Johnson asked. "And if that's expanded, well then it's going beyond the 'non-conforming use.'"
It was pointed out that the property needed to be used for 'dirt storage' when it was a trailer factory in order to allow for 'dirt storage' at this time.
Cossi pointed out that the property was zoned as 'industrial' and as such there are a number of things the landowner is allowed to do on his 'industrial' property. He said they don't all have to be done at the same time in order for the landowner to exercise his rights to use the land for an industrial purpose. Even if the zoning changed to 'commercial' the landowner has the right to use his property for 'industrial' purposes.
"It's true! It's true!" Chairman Wyssling added, "You can't just take someone's zoning away!"
Cossi used another example to explain the situation. If a person owned a house and a lot that were both zoned "R2." The property can be used for either single residential or multiple residential. If the homeowner decided to tear down his house to build an apartment building on his land, he has that right. He continued by citing yet another example. If a person owned a parcel that was zoned "industrial" and the zoning changed to "residential" that property owner retains the right to continue to use his property for industrial purposes. In most cases, in most cities there is a provision, however, that says if the owner ceases industrial operations on that property for one year, the property must conform to the current zoning.
Margaret Rayner told the Commission that the current zoning map shows the property listed as "industrial." She asked if meeting minutes were available that indicated that the land was rezoned to 'commercial."
Jane Bowman told the Commission that former Planning Commissioner Brian Lindquist stated the property was never officially rezoned from 'industrial' to 'commercial.'
Cossi asked if the zoning was changed and simply not reflected on the map or if the zoning was never officially passed.
Bowman told Cossi that the Commission wanted to change the zoning on the property, but the City never completed the task.
Wyssling and Lytwyniuk estimated that the change was suggested at least five years ago, but the City Commission never officially acted on the rezoning of the parcel. Rayner said the suggestion was made at least six or seven years ago.
Cossi told the Commission that storage of RVs in the old trailer factory and stockpiling of materials on the adjacent parcel, doesn't necessarily have to be a nuisance to neighbors in the mostly residential area. He pointed out, however, that if the property is zoned 'industrial' someone could open a tanning factory on the property. This could be very problematic for the residents in the area. He suggested that the property be rezoned as originally planned, and that the zoning ordinance be amended to include a "non-conforming use" provision to avoid problems in the future.
The Commission appeared to be in general agreement that changes needed to be made to both the zoning ordinance and the zoning of the former trailer factory property. Jackie Powers indicated that certain things -- even on industrially zoned properties -- are not permitted, and that the residents in the surrounding area still have legitmate complaints that needed to be addressed.
Dennis Hewitt told the Commission he'd check the minutes to see what exactly happened with the zoning. Margaret Rayner said she recalled that the Commission decided against rezoning the parcel in case some company wished to open up a light industrial business on the parcel.
7. Update on Noise Ordinance: Audience City Attorney Dennis Cossi - Dennis Cossi explained that there are two basic concerns when considering the passage of a new ordinance: (1) solving the problem and (2) enforcing the ordinance. He explained that the current ordinance used decibel levels to determine whether or not a noise is acceptable. He said that having a measurable means to determine violations was preferable to having an ordinance that was more subjective and arbitrary. Cossi admitted that many objectionable sounds and frequencies will not register on a decibel meter, but by adding terms like "plainly audible" to the existing ordinance would do little to solve the problem. The current ordinance is cut and dried. If the decibel level is exceeded a citation can be issued. When the matter goes to court, there will be physical evidence (the decibel reading) that will demonstrate a violation.
According to Cossi, changing the ordinance to include subjective observations will not strengthen the City's case for prosecution. What is "plainly audible" to one person may not be "plainly audible" to another.
Recent complaints involve low frequencies such as strong bass notes and drum beats from neighbor's audio systems. Although there is equipment available to measure levels of these frequencies, the equipment is very expensive and it would not be practical to equip police vehicles with such equipment.
Cossi explained to the Commission that he reviewed the current ordinance, and that he also obtained police complaints regarding the problem that brought the matter before them. He said that all of the complaints were from the same person, and that the Public Safety officers investigating the complaints stated on the incident reports that they were unable to hear the noises described by the complaintant. Cossi told the Commission that he didn't doubt there was a problem, however, if he were to bring the matter to court he would have a very difficut time convincing a judge that a violation has occured.
Cossi's recommendation to the Commission was to leave the ordinance as it is written. He said that the current ordinance is objective. The results of a decibel meter can be used to demonstrate a violation. He said that adding language that would include personal observations would make the existing ordinance more subjective, and harder to prove.
Tom Bergman said that other communities have adopted similar ordinances that have included noises that will not register on a decibel meter. Cossi said that passing a new ordinance wouldn't do much to solve the problem. He said that he wouldn't be able to pursue a case when only one person has complained and the police reports state that no violation is evident. Some of the complaints refer to "constant" noise, not necessarily "loud" noise. Cossi said that all of these observations are difficult to prove in court in order to win a case.
Bergman asked if the term "plainly audible," which is included in many city ordinances, would help to enforce the ordinance.
"If you can hear something, it is 'plainly audible.' Does that make it illegal? In other words, anyone who is in Ironwood who playing music or mowing their lawn is in violation. Or are we just going to put it for music?" Cossi said.
Mr. Misuraco interrupted pointing out that mufflers are placed on various motorized mechanisms to reduce the noise. Cossi agreed, but stated that anyone using a device that requires such a muffler would exceed the decibel level and be in violation of the existing ordinance. Cossi warned that an ordinance that includes the term "plainly audible" could lead to much abuse. He said constant noises or "plainly audible" noises aren't necessarily problem noises.
Robin McCarthy, 604 Bonnie Street, addressed the Commission. She was noticably upset. "You have a 'plainly audible' distance of 50 feet for vehicles with playing music and bass. It's in your ordinance. I am not the only one who has filed complaints. Obviously, when the police come to my house, whom I've had a good relationship with. The current ordinances don't cover because of the decibel meter, which will not measure. I'm 100 yards away. My other neighbors are further. Other cities have the 'plainly audible.' It has been held up in court. It is out there. I even talked to a lawyer friend of mine. I would not have gone through this process. I am talking about amplified noise, which, by the way -- I'm sorry -- I am really glad that none of you here have had to deal with this. Like 9:30 on Sunday, with the wind blowing, fans in my house, I'm 100 yards away. It is a football field. I can hear this music. The bass... 'boom bah boom boom!' It is not any different than a car. If a car parked outside of my house and did that, and I called the police, they would have to give him whatever. Other cities have this. To sit here and tell me that they don't is bull!"
"I don't think anybody told you that!" Cossi repsonded.
"I know," McCarthy said,"I'm sorry. But I have don't the research." She went on to say that she was the only one complaining because she was vocal and not passive. She said that her neighbors all complain, but none of them will file a complaint.
Chairman Wyssling told McCarthy that he went to see (and hear) the problem for himself. He said he walked all through the area. He said you can't hear the music, but McCarthy has a sensitive dog, and the bass makes the dog bark. Wyssling explained that he lives along the highway and that he can hear and feel the bass notes as cars pass by. He said the bass notes will rattle the winds.
McCarthy said it's an annoyance.
Jackie Powers pointed out that the Commission was not there to solve Robin McCarthy's problem. The Commission's duty was to examine the ordinance to see if it is adequate to serve the general public. She said it makes little sense to have an ordinance that would prohibit excessive noise from a car, but would allow excessive nosie from a house.
Cossi again cautioned that the term 'plainly audible' invites abuse of the ordinance. Neighbors can report neighbors who are watching their televisions, listening to music, or even talking to one another, could result in police action. Cossi suggested that McCarthy take the matter to civil court.
Commissioner Geib pointed out that sounds don't have to be loud to be problematic. He said different frequencies can cause all types of health issues and can be affect the behavior of people and animals.
Discussion continued on the matter, and although the Commission generally seemed to agree changes needed to be made, what changes needed to be made could not be determined.
8. Comprehensive Plan Review - The Commission agreed that work needs to be started on the Comprehensive Plan. LeRoy Johnson did some research and presented his finding to the Commissioners. The Commission agreed to review the plan to eventually present it to the City Commission.
9. Project Updates - Chairman Wyssling reported to the Commission that the Beacon Ambulance expansion project along Cloverland drive has been suspended until next year.
Dennis Hewitt reported that Phase One of the water and sewer project is progressing along Mill Street and South Range Road.
Hewitt also reported that sidewalk work along Cloverland drive has begun. They are adding handicapped curb cuts prior to remilling and repaving the highway. Paving of US-2 (Cloverland Drive) is expected to begin in two weeks. Lake Street will be remilled and repaved at the same time as Cloverland Drive is being resurfaced.
NEW BUSINESS
10. Consider subscription renewal for the Planning & Zoning News - Chairman John Wyssling explained that the subscription to the Planning & Zoning News was about to expire. He told the Commission that he felt the magazine was very helpful, and he'd like to see the subscription renewed. The Commission unanimously agreed to renew the subscription.
11. Citizens wishing to address the Commission on items not on the Agenda. (3 Minute Limit) - Mr. Misuraco, 301 West Larch, complained about the smoke coming from his neighbor's outdoor furnace. He said he sympathized with Ms. McCarthy for her noise situation. He explained that Ms. McCarthy had a noise pollution problem, while he had a smoke pollution problem. Misuraco explained that he has been in constant contact with Dennis Hewitt regarding the smoke from his neighbor's furnance since the first of June. Misuraco said that the smoke from the furnace has been creating havoc throughout the neighborhood. He asked if something could be done. He suggested that outdoor furnances be banned in the City.
Wyssling stated that the new ordinance addresses most of the issues regarding the smoke and problems for the neighbors.
This reporter addressed the Commission explaining noise and smoke issues are difficult to correct, but both are important to address and perhaps revisit.
12. Other Business - Rick Semo asked the Planning Commission what they thought of sharing Community Development services with the County. It was generally agreed by most of the Commissioners that the Community Development Director's job was a huge task and was a full-time job. It was generally agreed that the position needed to be for the City of Ironwood only.
13. Adjournment - After a brief discussion regarding the Community Development Director's position, the meeting was adjourned.
