Planning
Commission Minutes
MINUTES
Cascade Charter Township Planning Commission
Monday, February 19, 2008
7:00 p.m.
ARTICLE 1. Chairman McDonald called the meeting to order at 7:00
p.m.
Members Present: Koessel, Logue, McDonald, Richards, Robinson, Waalkes
Members Absent: Lewis (excused)
Others Present: Planning Director Peterson, Attorney Rice, Recording
Secretary Hern, and Members of the Public.
ARTICLE 2. Chairman McDonald led the Pledge of Allegiance to the
Flag.
ARTICLE 3. Chairman McDonald requested a motion for the approval of
the February 19, 2008 agenda.
Member Robinson motioned to approve the February 19th Agenda as
presented, supported by Member Richards. All in favor with none
opposed, the motion carried.
ARTICLE 4. Approve the Minutes of the January 7, 2008.
Chairman McDonald opened the meeting for revisions, corrections or
a motion for approval of the January 7th minutes.
Member Robinson motioned for approval of the January 7, 2008
minutes as presented, supported by Member Waalkes. All in favor with
none opposed: January 7, 2008 Planning Commission Meeting Minutes were
approved as submitted.
ARTICLE 5. Case # 07-2914: Jeff Dionne
Address of Property: 2984 Thornapple River Drive SE
(Tabled at the November 19, 2007 Meeting)
Requested Action: To install a fence in the front yard up to 8-feet
high.
Chairman McDonald requested a motion to remove this case from the
table.
Member Koessel motioned to remove Case # 07-2914: Jeff Dionne from
the table, supported by Member Logue. All in favor with none opposed.
Case # 07-2914: Jeff Dionne removed from the table.
Planning Director Peterson noted that this case was tabled at the
November 19th Planning Commission Meeting for two (2) reasons: 1)
There is a portion of the Zoning Code that reflects meeting the
approval of the neighbors and with the Applicant's neighbors
objecting, there was question if this section of the Zoning Code would
apply in this case. The Attorney's letter is included within the
Commissions' packets and Attorney Rice is also in attendance this
evening to address any questions the Commission might have. The
Township does believe this section does apply to this case.
2) The Planning Commission also tabled the case in hopes the Applicant
could provide a rendering showing what the fence would look like and
exactly where it would be constructed. Part of the Applicant's request
is to have a fence up to 8-feet tall, shown in the Applicant's
original plans to be located on the far eastern end of the property.
The Applicant has now submitted a series of pictures that Staff
will have the Applicant explain during their presentation. Planning
Director Peterson provided a couple of pictures of Thornapple River
Drive looking east and showed the three (3) fence posts the Applicant
has along the road indicating the fence line. Pictures were also
presented indicating the fence to be palces 9-feet off the road edge.
Planning Director Peterson referred to the survey and the eastern end
indicating that the road right-of-way is approximately 17-feet from
the road edge and as you get closer to the driveway it comes to
approximately 7-feet from the road edge. If the fence is constructed
at 9-feet from the road edge, a large proportion would be within the
road right-of-way. Staff did contact the Applicant regarding this and
the Applicant did confirm their intent was to put the fence in the
right-of-way.
The Township has had a conversation with the Kent County Road
Commission (KCRC) and they said they would not allow a new fence to be
established within the road right-of-way. The Applicant has provided
some pictures of existing fencing that includes small sections of
4-foot chain-link fencing that is within the road right-of-way. The
Township views the wooden fence as a new fence and therefore would
have to comply.
Given the Applicant's request and the letter from the Township
Attorney, Staff recommends the Planning Commission deny the
Applicant's request for a Special Use Permit. This denial would not
prohibit the Applicant from returning with a different request in the
future.
Planning Director Peterson referred to the section within the
Township's Zoning Code regarding neighbor's approval, the Township's
position is that if the fence were at 6-feet and along the property,
we may feel differently about the application, but given the fence is
requested to be in the right-of-way, Staff recommends denial of the
Applicant's request.
Chairman McDonald asked Staff that the Applicant would be able to
establish a 4-foot fence on their property line without a Special Use
Permit, does Staff mean up to the road right-of-way line? Planning
Director Peterson confirmed that to be correct, the Applicant could
establish a 4-foot fence up to the road right-of-way line without any
problems.
Chairman McDonald referred to Section 4.30.3.a noting that it is
unlawful to construct any wall or fence in any public right-of-way and
if the fence were to be within the right-of-way, according to the
Township's Ordinance, that would be unlawful and the Township has no
authority since the right-of-way is controlled by KCRC and the
Township does not have jurisdiction in the right-of-way and Planning
Director Peterson said that is correct.
Chairman McDonald also noted that Staff is referencing as part of
their recommendation for denial Section 4.30.5.a where the Ordinance
states that the adjoining property owners approve of the fencing and
Staff said that is correct.
Member Robinson asked for Staff's clarification within their
recommendations it notes that they would approve a fence up to 6-feet
but not the Applicant's current request, correct? Planning Director
Peterson clarified that if the fence were at the road right-of-way
line, the Township may look more favorably at the fence being 6-feet
tall if the Applicant could prove that the fence would meet the other
standards for the Special Use Permit.
Chairman McDonald summarized that Staff's recommendation would be
to deny the Applicant's request since the Applicant indicates
constructing the fence within the right-of-way. Planning Director
Peterson said that is correct.
Mr. Jeff and Mrs. Lisa Dionne provided a presentation to the
Planning Commission.
Mr. Dionne said they are requesting this fence for safety, security
and privacy. They would like to keep trespassers off their property,
reduce visibility of their beachfront, and secure their pets and small
children and to provide definition between their property and the
Leslie E. Tassel Park.
Mr. Dionne showed pictures of the Brinks' property and other
neighboring properties to the east that have 6-foot fences.
Mr. Dionne provided photos of the Lawton's view of their property
and their fence along Thornapple River Drive.
Mr. Dionne showed pictures of the new fencing that was approved at
the November 2007 Commission Meeting along with 4-foot high fencing in
the front yard. He noted the property to the east and if a 6-foot
fence were installed, with the land's topography, the fence becomes a
4-foot fence. He also noted that the fence does not block any views of
the river, just their yard.
Mr. Dionne provided pictures of the road right-of-way that is
7-feet down by their driveway and ending at approximately 17-feet
further east. The pictures indicated the preferred fence position by
the Dionne's and showed what they would look like.
Pictures of the sections of existing fence were provided along with
the Lawton's fence. Mr. Dionne noted that the Lawton's erected their
new fence in October 2007 and a portion of the newly erected fence is
within the road right-of-way.
More importantly, these photos show more than 500-feet of 6-foot
fencing along Thornapple River Drive. Mr. Dionne noted that a snow
fence did exist on their property and showed pictures of the existing
sections. Pictures also referred to the previous owner's "no
trespassing" signs on the property, validating there have been
issues in the past.
Mr. Dionne said when he bought the property, he had to resolve many
property line issues and obtain surveys, yes, the existing fence line
is at 9-feet and other fence lines on the properties from their house
to Tassel Park vary from 8-feet to 7-feet and are all within the Kent
County road right-of-way.
A picture of the Lawton's home overlooking Mr. Dionne's home was
provided. Mr. Dionne noted that the Lawton's would still have a direct
view of the river over their fence. They do not feel that they would
be restricting the Lawton's view with their fence. The only view that
would be restricted of the Lawton's would be to the Dionne's
beachfront. Mr. Dionne said the fence would provide them privacy while
enjoying the beach.
Mr. Dionne noted they acquired their home this past summer and at
that time, the Lawton's did not have a riverfront view from their home
since the area was very overgrown and the Dionne's have cleared the
property. Both the Lawton's and the Brinks' have only benefited from
the Dionne's improvements that they have made to the property.
Mr. Dionne provided aerial views of the property noting how the
fencing would screen the beach. They will also have boat docks, boats
in the area along with the beach. Mr. Dionne noted the drop-off in the
topography of the property directly behind their house and the
waterfront is not easily accessed in this area. This is why they are
utilizing the current area for the beach and the boats and seek
additional privacy in that location.
The survey that is being presented this evening is also the same
survey the Lawton's presented in November. The Lawton's failed to
mention that the Dionne's trees were painted for their survey
purposes. The Lawton's have trespassed on their property without their
permission and vandalized their trees. The Dionne's did not commission
the survey.
Mr. Dionne noted phone calls with the Township that verified that
he could erect a fence if there is an existing fence within the road
right-of-way. He presented a 1942 transcript indicating the historical
fence in its current configuration. A survey from 1948 was also
presented noting the fence's dictation; a historical fence running the
property line. To this day, 2007, a survey commissioned by the
Lawton's indicating the existing fence. When the Dionne's removed over
80-yards of debris it included over 100-yards of the chain link fence
that is being stored on his property. He has offered to show the
Township the existing fence he removed but the Township has not
followed-up.
Another survey was shown indicating the road right-of-way, the
existing fence, and the new fence. The next picture indicated the
75-feet the Dionne's would like to have the fence located within the
road right-of-way. They are making this request because there was
existing fence in this area that they had cleared and there is an
embankment in this area.
In conclusion, why should the Planning Commission approve the fence
as submitted? Because of safety, security and privacy. Documentation
of an existing fence within the road right-of-way has been presented
tonight; the Township Staff has indicated in phone conversations that
a fence could be established if replacing an existing fence.
Mr. Dionne also noted that nowhere within the Townships Zoning
Ordinance does it state what constitutes an existing fence. It also
does not state that if an existing fence were to be replaced that it
must be done with the same materials of the original fence. The
Dionne's believe they have a right to place their fence within the
right-of-way of KCRC as replacement ungoverned within the Zoning
Ordinance.
Mr. Dionne also noted that it is evident that the Lawton's have a
boundary issue with the Dionne's. The Lawton's have trespassed on
their property and damaged their trees. It is apparent that the
Lawton's do not know the boundaries and the fence would help establish
the boundary.
The Lawton's have also erected fencing within the road right-of-way
with portions greater than 4-feet in the fall of 2007. In November
2007 Mr. Lawton and his attorney stated their concerns to the Planning
Commission of the Dionne's fence being located within the road
right-of-way but they have done the same thing.
The Lawton's also stated at the November 2007 meeting that they
have not had any problems with trespassers but in their notes, they
defend the new fencing by saying "…to keep trespassers of their
property…."
A concern expressed during the November meeting was that if a fence
were erected, it would block everyone's view of the river. Mr. Dionne
has referenced the Township's zoning bylaws and cannot find anything
that references control of view, ownership of view or blockage of view
of the Thornapple River. Views are not typically controlled unless
governed by a scenic byway status yet undeclared for Thornapple River
Drive.
The survey before the Planning Commission was obtained when the
Lawton's purchased the riverfront property to the far west that moved
a boundary line. The survey indicates the new Lawton fence that was
erected within the road right-of-way and there was not an existing
fence in this area.
Mr. Dionne noted that he has had numerous phone calls with the
Township regarding the 6-foot fence and the Lawton's new fence. The
Township is not in pursuit of the Lawton's new fence located within
the right-of-way as it still stands today.
The Dionne's were also made aware that homes along the river, the
front yard is considered the property's back yard and a 6-foot fence
is allowed in the backyard. Mr. Dionne referenced the Brinks' case
back in November 2001 that was regarding an accessory building
variance. In the minutes of the meeting, Mr. Peterson stated that an
accessory building would be allowed in the backyard of the Brinks'
property since their front yard is along the river.
The surrounding neighbors have all erected 6-foot fences on their
property to keep trespassers off and this is what the Dionne's are
also trying to accomplish.
Mr. Dionne stated that their formal request this evening is to
erect a 6-foot fence to the east of the driveway, roughly 100-feet
long having an estimated 75-feet located within the road right-of-way
at approximately 9-feet from the curb. This fence is for the
replacement of an existing fence, not a new fence, located within the
right-of-way and maintains a height and setback standard consistent
with the neighbors having fencing within the KCRC road right-of-way.
If the approval is granted, Mr. Dionne would drop any formal
complaints he has filed against the Lawton's fence that is erected
within the road right-of-way.
Member Logue asked for a copy of the applicant's survey and asked
the Dionne's if they purchased the property without a survey and the
Applicant said that he cleaned up the property line conflicts at the
time he purchased the property. Mr. Dionne also noted that the
Lawton's believed they owned riverfront property and he notified them
that his surveys do not show that they do.
Member Logue asked Mr. Dionne where he based the right-of-way line
from and what if the road paving does not fall exactly in the middle
of the right-of-way. Mr. Dionne noted that the Lawton's survey shows
the distance from the curb edge to the right-of-way line. Only 75-feet
of their proposed fence would be within the right-of-way and there is
nothing within the Township's Ordinances governing this. Mr. Dionne
believes the Township's Ordinances should address these issues and
what constitutes a front yard from a backyard along the river, etc.
Member Logue asked again about the right-of-way measurements and
Mr. Dionne noted that there is an embankment toward the end of the
property and if a 6-foot fence were erected in this area, down the
embankment, the fence would not be affective in deterring trespassers
and therefore want the fence within the right-of-way.
Member Logue questioned what the KCRC says about establishing a
fence within the road right-of-way. Mr. Dionne said that he has spoken
with contacts in Detroit area that the Township primarily governs the
fence and KCRC should not have a problem with it as they focus on road
maintenance. The Lawton's fence is still standing within KCRC's
right-of-way.
Member Koessel asked Staff that the reference was made to the
Brinks' fence as well as the approved 6-foot fence on the Dionne's
property are within the road right-of-way, is that correct? Planning
Director Peterson clarified the fence is not within the right -of-way.
Member Koessel asked if the Brinks' fence is within the right-of-way
and Planning Director Peterson said it may be as the right-of-way does
change along this stretch of road. This Applicant has the benefit that
less of their property is affected by the right-of-way than some of
the others further west.
Member Koessel's understanding is that the Township does not have
the right to approve the new fence since there is a portion within the
KCRC road right-of-way; it is not within the Township's jurisdiction?
Attorney Rice said that is correct. Planning Director Peterson also
noted that he did contact the Lawton's attorney regarding their
portion of the new fence within the right-of-way that was constructed
and they are willing to remove that portion of the fence, though it
has not been done yet, they have agreed to do so.
Member Koessel noted that the Township does not have the authority
in this case regardless of what exists today. Mr. Dionne referenced
what is not within the Township's Ordinances and maybe that
information is not included because the Township does not have the
authority to grant fencing within road right-of-ways. Member Koessel
does not know if the KCRC would allow the erection of the fence but
the Township does not have jurisdiction in this matter.
Mr. Dionne said he does not see this as erecting a new fence; he is
replacing an existing fence that has been documented. Member Koessel
noted that what the Dionne's are proposing going from one type of
fencing to another and what is there today and whether it could be
replaced is a different question that the Planning Commission of
Cascade Township does not have the authority to deal with. Member
Koessel noted that speaking with a representative in Detroit would not
help with KCRC and the Dionne's may want to contact KCRC for their
input. Member Koessel noted that if the Dionne's obtain written
approval from KCRC to erect the fence within the right-of-way, then
the Planning Commission could handle the other issues regarding the
fence height, etc.
Chairman McDonald supported Member Koessel's comments and noted
that the KCRC is very comprehensive and thorough. He referenced his
personal experience regarding a tree that had branches in the
right-of-way that were trimmed by the KCRC.
Chairman McDonald referenced the ordinance regarding the Township
has no control of public road right-of-ways and if the Commission did
approve the fence, the KCRC could still ask for it to be removed.
Member Koessel also asked the Applicant's what the fence they would
like would look like if it were off the road right-of-way. If the
Dionne's were requesting the fencing on their property, out of the
right-of-way, the Planning Commission could review the case but they
cannot make decisions regarding fencing within the right-of-way.
Member Waalkes stated that because the Applicant is proposing new
materials and changing the height then that is considered new fencing
and Planning Director Peterson said that is how the Township perceives
it.
Member Richards noted that the Commission couldn't grant approval
since the fence is within the right-of-way. If the Township cannot
grant approval, then can we even deny the case? Planning Director
Peterson said he would rather have the Commission take action on the
application instead of leaving it in limbo. The Planning Commission
could deny the application based on not having jurisdiction.
Mrs. Dionne asked what is considered their front yard and their
back yard. Planning Director Peterson noted the front s the area
between the road and the home. The section Mr. Dionne noted earlier
only applies to accessory buildings, not fencing.
Chairman McDonald invited the Lawton's to add their comments. The
Lawton's attorney said that his client has owned property for 13 years
and has never seen a fence there.
The Lawton's do not object to a fence on the right-of-way line, the
problem is some of the right-of-way lines go down hill. At the
driveway, the right-of-way is level with the road but at the east end,
it is approximately 6 to 8-feet below the road level. The Lawton's
would like to see pictures depicting the fencing and the view of the
river and until the Lawton's are able to review the fencing and its
height, they are not in a position to consent to the fencing at any
increased height above 4-feet on the Dionne's property. He noted that
the pictures presented this evening do not provide the actual height
of the fence.
The Lawton's are willing to compromise if it makes sense and they
are not willing to consent to a fence placed within the road
right-of-way.
He believes the small fence along the side of the property line was
erected by the Lawton's and is 5-feet in height. A small portion of
this fence did replace an old portion of fencing that adjoins to other
properties. The old fence was that of snow fencing with wiring and the
Lawton's have replaced it with a more substantial chain fence with a
portion in the road right-of-way and this is the portion the Lawton's
have agreed to remove this portion if the KCRC wants it removed.
The attorney noted there are three (3) properties between the
Dionne's property and Tassel Park. Trespassers may come down from the
road and the Lawton's do not begrudge the Dionne's for wanting
property. They are not opposed to fencing that is located outside of
the road right-of-way.
Virginia Decue-Lawton, 2975 Thornapple River Drive, clarified the
fence within the road right-of-way runs along the two (2) adjoining
lots and they repaired the portion. The fence connects three (3)
properties and if the KCRC asked them to remove their portion, it
could collapse the other two but they are willing to do so if KCRC
requests it.
Chairman McDonald thanked both parties for their excellent comments
and the Planning Commission needs to review what they have control
over from an ordinance standpoint.
He referred to Section 4.30.3.a that says it is unlawful to
construct any wall or fence in a public right-of-way and since this is
in the right-of-way this may be a KCRC issue and if there was a letter
from them supporting the fencing, the Planning Commission could
control the height issue. Planning Director Peterson also added that
it is staff's position that even if approved by the KCRC the applicant
would need a variance from the ZBA for a fence in the right-of-way.
Chairman McDonald opened the meeting for a motion regarding the
case clarifying that if the case were denied, the Applicant could
submit different request at another time. The request would have to be
substantially different, possibly including a letter of approval from
the KCRC for a fence within the right of way or the application could
be for a fence outside of the right-of-way higher than 4-feet,
Planning Director Peterson confirmed this to be correct. Chairman
McDonald referred to section 4.3.2 regarding the clauses for
re-applications.
Member Robinson asked if the Planning Commission should deny the
request or state that they do not have jurisdiction with the request
and asked for legal consult. Attorney Rice advised that the Planning
Commission could reject the request based on the fact that they
Commission does not have jurisdiction. There should be an action on
the application and a denial based on no jurisdiction would be
appropriate.
Member Waalkes motioned to deny the Applicant's request presented
this evening based on the fact that the Planning Commission does not
have jurisdiction in placing fences within in public right-of-way,
supported by Member Robinson. Chairman McDonald called to question the
motion.
Member Logue noted that if the KCRC were to fill the embankment to
the level of the road grade up to the right-of-way line and then the
Applicants were to erect a 4-foot high fence, would that fall within
the Township's ordinances? Planning Director Peterson noted it is not
about the grade but where the fence falls within the right-of-way. If
the area were filled in, the Applicant could have a 4 foot tall fence
on the right-of-way line with no need for a special use permit for
additional height.
Member Koessel also suggested that maybe if the fence at the east
end were 4-feet in height, and because of the topography, and maybe at
the drop-off on the property, that fence is 6 or 8-feet. He was hoping
to view pictures of the fencing on the property line. Mr. Dionne noted
that if this were to happen, the fencing would not be consistent with
what is along Thornapple River Drive. Member Koessel noted that if the
Applicant wants fencing above 4-feet, the Planning Commission is
willing to review what the fencing would look like as long as the
fencing is not within the road right-of-way.
Chairman McDonald asked if there was any more discussion regarding
the motion that has been made. Being none, Chairman McDonald requested
a roll call vote, in favor of the motion say "Aye" and
opposed "Nay":
Member Koessel: Aye
Member Richards: Aye
Member Robinson: Aye
Member McDonald: Aye
Member Waalkes: Aye
Member Logue: Aye
All in favor of the denial of the application based on no
jurisdiction within a public right-of-way with none opposed. Motion
carried.
Chairman McDonald encouraged the Dionne's to speak with the KCRC.
ARTICLE 6. Annual Report
Planning Director Peterson noted this is not an action item for the
Planning Commission. It is a summary of last year's activities. He
noted that the Planning Department had a small increase in projects in
2007. The report also included information regarding the wrap-up of
the Centennial Park Plan, starting the Township's Master Plan as well
as wrapping up the Parks' Master Plan.
Planning Director Peterson will provide electronic copies of the
Annual Report to the Commission.
ARTICLE 7. Any Other Business
Chairman McDonald opened the meeting for any other business.
Member Koessel said that the Township Board did hold their goal
setting meeting. The complete list of goals will be published in the
Township's newsletter but one thing the Board agreed to continue is
the Community Nights. These are events where the various
board/commission members hold an open house with the public to know
them better. More of the open houses will be planned for 2008.
ARTICLE 7. Adjournment
Chairman McDonald requested a motion for adjournment.
Member Robinson supported by Member Logue moved to adjourn. The
motion carried and the meeting was adjourned at 8:19 p.m.
Respectfully submitted,
Jack Lewis, Secretary
Lisa Hern, Recording Secretary
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