Charter Township of Orion
Oakland County, Michigan


Zoning Board of Appeals

Minutes, Regular Meeting, Wednesday, May 12, 2008


The Charter Township of Orion Zoning Board of Appeals held a regular meeting on Monday, May 12, 2008, at the Orion Township Hall, 2525 Joslyn Road, Lake Orion, Michigan  48360 at 7:00 p.m.

BOARD  MEMBERS  PRESENT: Don Walker, Vice-Chairman; Brad Lare, Matt Gibb, Joe Geraci, Dan Durham

OTHERS  PRESENT: Tom Berger, Building Official; Kris Enlow, Twp. Engineer; Brian Drinkard, Pam Omilian, Peggy Miller, Ruth Warren, Jack Warren, Tara Christi, Shelley Tuson, Nick Christi, Ron Fern, Patti Fern, John Hessler, Neal Porter, Jeffrey Rider, George Kosiba, Sharon Kosiba, Eugene McNabb, Ora McNabb, Pete Granzow, Kati Christi, Shawn Gall, Tom Cupples, Ord. Officer; Kristine Sullivan

1. OPEN  MEETING: Chairman Walker called the meeting to order at 7:00 p.m.

2. ROLL  CALL: All members were present except Loren Yaros.  Dan Durham was present as an alternate.

3.  MINUTES: Motion by Matt Gibb, supported by Joe Geraci to accept the April 28, 2008 regular minutes as presented.  All ayes.

4. AGENDA  REVIEW  AND  APPROVAL: Approved as presented.

5. NEW BUSINESS:

  1. AB-2008-18, Christiís Bar and Grill, 95 E. Clarkston

The petitioner is seeking relief from Zoning Ordinance #78, Section 30.07 requesting a temporary use permit for an outside patio for seasonal sales. Chairman Walker asked the petitioner to approach the podium. Nick Christi was present.

Chairman Walker asked if there is an existing patio. Nick Christi replied yes, it has been there since I built the restaurant.

Chairman Walker asked if the patio has been used in past years? Nick Christi replied yes, the first year I was open and did not have permission from the township.

Matt Gibb asked if he will stay within the existing use? Nick Christi replied yes.

Matt Gibb commented there is a stone wall on the parking lot side and if the use is granted will be bound within the boundaries of the patio area. Nick Christi replied yes.  I do have approval of the LCC, Oakland County Health Department, and Oakland County Sheriff Department. 

Matt Gibb asked if this falls under the confines of the liquor license? Nick Christie replied yes.

Matt Gibb asked if there would be any outdoor entertainment? Nick Christie replied no, just the 2 speakers at the entrance for background music.

Matt Gibb asked do you anticipate any special events on the patio? Nick Christie replied I have thought about using a grill outdoors.

Matt Gibb asked the hours of operation for the patio? Nick Christi replied 11 a.m. to midnight.

Matt Gibb commented even though the restaurant is open later? Nick Christi replied yes, but it is hard to say.  We will stop serving food on the patio around 11 p.m.

Matt Gibb asked if there would be any additional music outdoors other than the two speakers? Nick Christi replied no.

Matt Gibb asked if there will be any additional lighting? Nick Christie replied no.

Matt Gibb asked is it essentially landscaping and small flood lights? Nick Christi replied yes.

Matt Gibb asked if the lighting was approved by the Planning Commission? Nick Christi replied yes.

Joe Geraci asked if the patio was in the plans from day one. Nick Christi replied yes, but it was listed as a proposed patio.

Brad Lare stated the closest resident is 500 ft.

Dan Durham stated it appears by looking at the information the patio will not share any entrance or exit space with the main restaurant. Nick Christi replied no, there is a gate on the patio for exit but you have to enter through the main entrance of the restaurant.

Dan Durham asked if the Fire Department has been contacted in regards to the number of people allowed on the patio? Nick Christi replied no.

Dan Durham stated if the temporary use permit is granted tonight you will want to contact the Fire Department.

Chairman Walker asked if there were any comments?

Phil Christi stated his concerns regarding litigation on the ownership of Christiís and request this matter be tabled.

Nick Christi stated on April 15, 2008 we engaged in mediation and have reached an agreement with the Circuit Judge.

Matt Gibb stated the application is on behalf of Christiís Bar and Grill and asked Nick if he has authority to speak on behalf of Christiís? Nick Christiís replied yes.

John Hessler stated I live approximately 100 ft. from the restaurant not 500 ft. and have concerns regarding the hours, noise, and lighting.

Nick Christi stated I am willing to turn off the music or dim the lights if need be.

Pam Omilian stated her support of the temporary use permit.

Peggy Miller stated her support of the temporary use permit.

Joe Geraci asked in the initial planning phase the patio was turned down would that area of been included for more seating? Nick Christi replied I could have gone that route but it would of cost a lot more because of the structural changes.

Matt Gibb stated the disputed ownership of the estate doesnít really bare on the application.

Dan Durham asked if there is a noise ordinance? Matt Gibb stated we can put in the motion no outdoor music and the doors need to remain closed.

Brad Lare asked Mr. Berger if there are any complaints for light or noise? Tom Berger replied no. 

Motion by Matt Gibb, supported by Joe Geraci.  In the case of AB-2008-18, Christiís Bar and Grill, 95 E. Clarkston.  The petitioner is seeking a temporary use permit under Ordinance #78, Section 30.07 asking for a  temporary use permit for the extension of sales of the existing business to be conducted outside.  I move we grant approval of this temporary use permit under section 30.07 with the following conditions:  Permit will commence on May 20, 2008 and extend for 90 days, subject to renewal as the ordinance prescribes.  This request is somewhat of a trial basis and if it is violated they would have to come back to ZBA and we would have the option to deal with it accordingly at that point.  The hours of operation for the permit will be 11:00 a.m. to 10:00 p.m.  This means the patio will be closed at 10:00 p.m. not the last seating at 10:00 p.m. or people lingering and finishing their drink.  These hours would be consistent with other establishments in the community particularly that the Township Board has considered for liquor license issues and 10:00 p.m. is late enough for the patio to be open.   This would be for the service of existing lunch and dinner sales only and subject to whatever conditions or restrictions the Liquor Control Commission through his license would provide.  The following would not be part of this permit Special events, Cinco De Mayo,  BBQís and would require approval again by the ZBA.  There will be no outdoor entertainment, no live entertainment, music of any kind on the patio area.  If there is indoor entertainment then it will be required the french doors to the exterior of the building will be closed during those periods of entertainment to minimize noise onto the adjacent properties.  As far as any outdoor music the two speakers that play continuously are allowed for ambient noise and we will  monitor the noise of these speakers.  There will be no changes to the existing lighting on the patio.  The temporary use permit will be confined to the limits of the existing patio; the entry/exit of the patio will be subject to the approval of the Sheriffís and Fire Department.  I ask the applicant provide something in writing to the Building Department in regards to the approval of the plan for the file.  With all these conditions I move we approve the temporary use permit effective May 20, 2008.

Just as a comment this is an oculus spot in the township, the outdoor use is facing away from the existing residential and faces the Kmart plaza, is well guarded in the sense of the architect of the building and the parking lot.  I believe this is an excellent place for Christiís Bar and Grill to have a trial run to see if on a temporary basis this limited use can be used.  I think it would be a benefit to our community and am in favor of allowing this but restricting it with conditions.  This is a reasonable alternative to the ordinance in considering this temporary use permit and will not set precedent for future requests due to the unique nature of the location.  When you review the criteria under a temporary use permit this particular one meets all the criteria.

Chairman Walker asked to add this will not set precedent for future requests and is a unique situation. 

Joe Geraci asked to add there was a proposed patio from day one on the plans and complies with all regulations. Tom Berger stated when the plans were approved the patio was not included in the approval and would need consideration beyond what the Building Department.

Matt Gibb amended motion.

Roll call:  Dan Durham-aye, Joe Geraci-aye, Matt Gibb-aye, Brad Laree-aye, Don Walker-aye, 5-0.  CARRIED.

  1. AB-2008-19, Interpretation of Bulletin Board Signs

The Planning/Zoning Staff would like to know what constitutes an event under the definition of a bulletin board or announcement sign.

Char Beiser stated  the previous ordinance was it clear, bulletin boards were for churches or schools.  It was clear in the schedule part of the ordinance, one center identification sign was allowed.  The new ordinance allowed identification signs to list all the stores in the center.  Under the current Sign Ordinance certain LED signs were prohibited with the exception of the SP-1 district.  A church is allowed a bulletin board but under new technology a sign can be changed from the inside on a computer and we feel you canít deny someone technology.  Under the definition where it states events, public, or private we are now getting calls from restaurants and they say we have events.  A store will call stating special sales are events and we are confused on what we should consider or not consider an event under the Sign Ordinance.  I donít think the intention of the committee was to open it up to everything in the community but you are the interpreting board we need a definitive definition of what an event is. 

Joe Geraci stated the definition of event is an occurrence, incident, or experience especially one of some significance. 

Matt Gibb stated there needs to be some type of unique attachment to it. 

Char Beiser stated churches and schools are considered to have events week after week or month after month.

Brad Lare stated I interpret it as being a departure from the normal way of doing business.

Matt Gibb stated the main difference from schools and churches they are not a commercial enterprise. 

Brad Lare stated I think the commercial zoning is a big factor to take into consideration. 

Matt Gibb stated my concern is to be careful to go from interpreting to revising the actual ordinance.  My interpretation is it would be a singularly significant occurrence.

Brad Lare stated the word significance leaves itself for interpretation.

Matt Gibb stated an event does not mean a regular or reoccurring course of business.

Char Beiser asked not simply for advertising? Matt Gibb stated correct.

Tom Berger stated the electronic technology is part of the world today and Char and I didnít feel we were in the position to make that clarification. 

Dan Durham stated according to the internet the word event it must be of a cultural and or social importance.  Some of the examples are a festival (such as a long running musical event), a ceremony (marriage, competition, sporting event, convention, or meeting).  The internetís definition is it is not for a short period of time and it is important to a number of people and not just for advertising.

Brad Lare stated that is a better definition.

Char Beiser stated I think that definition would help us define an event.

Motion by Matt Gibb, supported by Dan Durham.  In the case of AB-2008-19 which is a request for interpretation of Ordinance #138, specifically requesting the Zoning Board of Appeals to interpret the definition of the word event as it applies to section 3 of bulletin boards or announcement signs which quotes a sign that indicates an event, public, or private.  It is the opinion of the Zoning Board of Appeals the term event shall have the context of culture or social benefit to promote science mathematics, technology, or the arts.  Examples would be of a festival (ongoing musical event), ceremonies, sports competitions, conventions, or meetings.  The word event would not be singularly identified with commercial advertisement not advertising. Roll call:  Matt Gibb-aye, Joe Geraci-aye, Dan Durham-aye, Brad Lare-aye, Don Walker-aye. 5-0.  CARRIED.

  1. AB-99-2008-01, Bob Warren Trucking, Inc., 7.50 Acres, Lots 29 & 30 Highland Farms

The petitioner is requesting renewal of an Ordinance #99 permit for sand and gravel mining, earth excavation and/or filling and earth balancing. Chairman Walker asked the petitioner to approach the podium. Ruth and Jack Warren were present. Kris Enlow read the review report from OHM.  (Attached)

Joe Geraci asked if the grease pit is being used? Jack Warren replied we use it occasionally.

Tom Berger stated it has been there for years and have never had a problem with it.

Matt Gibb asked how many trips will be generated on the site? Jack Warren replied approximately 10.

Matt Gibb asked if we said 25 a day that would cover you on a busy day? Jack Warren replied yes.

Matt Gibb asked why do you want your hours extended to 7:00 p.m.? Jack Warren replied it depends on the location of the job.

Matt Gibb stated I know you havenít pulled material off the site in a while but you can.  Since Ordinance 99 is designed for that, would you say 10,000 yards of material would be safe? Jack Warren replied yes.  My questions are designed so that you stay compliant but gives you flexibility incase you need it.

Matt Gibb asked if the berm will remain on Jordon Road? Jack Warren replied yes.

Chairman Walker asked if Bonds and Insurance are up to date? Jack Warren replied yes.

Matt Gibb stated the only 2 questions I have are, is there a current topographical map that reasonably matches what exists and do we have a final grading plan.  I believe we have both. Jack Warren replied yes.

Dan Durham asked Mr. Cupples if there are any outstanding code or enforcement issues that you anticipate causing a problem? Tom Cupples replied no, other than the observations Kris Enlow stated in his report.

Dan Durham asked if Mr. Cupples if he expects cooperation? Tom Cupples replied yes.

Motion by Matt Gibb, supported by Brad Lare.  In the case of AB-99-2008-01, Bob Warren Trucking, Inc., 7.50 Acres, Lots 29 & 30 Highland Farms.  I move we approve an Ordinance 99 permit commencing May 15, 2008 and expiring May 15, 2009 subject to the following conditions: appropriate dust control (including chloriding the site as necessary), access entrance off Brown Road,  Berm blocking Jordon Road remain permanently at this time, site limited to 25 trips of both regular and double haul dump trucks, bonding and insurance will be verified through the Building Department as accurate and up to date, hours of operation 7 a.m. to 7 p.m., and excavation or importation of fill will be reserved at this time as the applicant has indicated.

Brad Lare asked to add the removal of miscellaneous debris and unused equipment removed from the site will be coordinated with our Ordinance Officer.

Matt Gibb amended motion.

Roll call:  Joe Geraci-aye, Brad Lare-aye, Dan Durham-aye, Matt Gibb-aye, Don Walker-aye. 5-0 CARRIED.

  1. AB-99-2008-03, Pontiac Sand and Gravel, Inc., 445 Brown Road

The petitioner is requesting renewal of an Ordinance #99 permit for sand and gravel mining, earth excavation and/or filling and earth balancing. Chairman Walker asked the petitioner to approach the podium. George Kosiba was present. Kris Enlow read the review report from OHM.  (Attached)

Joe Geraci asked if the keep out signs are only for a site with standing water or the perimeter fence? Kris Enlow stated if the site itself is completely fenced in then there would be no need to fence around the water.

Joe Geraci stated since there is a body of standing water your recommendation is add signage to the fencing. Kris Enlow replied itís in the ordinance but it also says or as otherwise required by the Board of Appeals.

Matt Gibb stated I thought there was fencing on the north side. George Kosiba stated the site is completely fenced but there are a few areas the fencing is down.

Matt Gibb stated the application states it will take approximately 300,000 yards to fill the site and they are requesting 30,000 for the duration of this permit.  Will the sediment issues be addressed? George Kosiba replied yes.

Matt Gibb asked if there is any sediment control measures that are required? Kris Enlow replied if there is no erosion you wouldnít need any controls but if there is any erosion you would have to put in some soil erosion measures.

Matt Gibb stated the Building Department can watch for soil erosion.

Brad Lare asked if there are any violations? George Kosiba replied yes.

Chairman Walker stated the violation is for outdoor storage.

Matt Gibb asked Mr. Kosiba what are your intentions on the equipment on the site that is not being used? George Kosiba replied I will be selling them.

Matt Gibb asked if they would be stored in an orderly fashion. George Kosiba replied yes.

Matt Gibb stated you have 2 dozers, 10 wheeler, and 2 loader trailers. George Kosiba replied yes and I will be removing the old excavator.

Matt Gibb stated you want to put the equipment behind the north side of the garage and the east side of the property line? George Kosiba replies yes.

Joe Geraci asked what took place between November 13, 2007 when the warning notice was first given until April 21, 2008 when the second and final notice was given? George Kosiba replied when I received the first violation I was in Arizona and contacted Mr. Cupples.  He gave me an extension until the first of April to contact him and when I came into the office he was on vacation and forgot to come in after that. 

Mr. Cupples read statement.  (Attached)

Sharon Kosiba stated she was upset with the violations. George Kosiba stated I have not been rude.

Chairman Walker asked if the Bond and Insurance are up to date? Kristine Sullivan replied yes.

Motion by Matt Gibb, supported by Don Walker.  In the case of AB-99-2008-03, Pontiac Sand & Gravel, Inc., 445 Brown Road.  The petitioner is here seeking a permit under Ordinance 99 for sand and gravel mining, earth excavation and/or filling and earth balancing.  The petitioner has presented the appropriate materials and our engineer has reviewed the same and we have reviewed the report from OHM.  I move we approve a permit under Ordinance 99 for Pontiac Sand & Gravel, 445 Brown Road subject to the following conditions:  There shall be 25 trips  limited per day which includes single and double bottom haulers, appropriate dust control measures including necessary chloride will be completed to control dust, 5,000 yards may be excavated from the site in the form of sand or clay, and 30,000 yards may be brought  into the site for earth balancing and/or filling.  All appropriate fencing will be repaired and erected as directed in the engineerís letter of May 8, 2008, all bond and insurance information shall be maintained up to date with the township.  So long as there is standing water in the pond area of the pit the petitioner will put up keep out danger signs around the pit at intervals not greater than 200 ft. apart on the fencing.  Hours of operation shall be 7 a.m. to 7 p.m., to mine within the 100 ft. setback on the westerly side of the property and a variance granted for the sloping of banks will exceed a 1.3 ratio.  I further move that the petitioner may provide storage of parts and non operational equipment limited to the following:  2 dozers, 10 wheeler, spare loader for parts, construction trailer, and all other miscellaneous debris that has been identified by the violations and the petitioner is looking to get rid of will be actively removed from the property.  The storage of those materials shall be as indicated by the sketch immediately to the north of the garage along the east boundary line and they will not be permitted anymore outdoor storage without an approved site plan through the Planning Commission.  I am not putting a time limit on the removal of the debris but there are other means of enforcement if Mr. Cupples feels there will be any on going issues, my motion is intended to allow Mr. Kosiba to store the larger equipment not used onsite orderly behind the garage.

Joe Geraci asked if the motion is waving Section 16.04? Matt Gibb stated as a condition of the operational permit he can maintain storage for those limited items.

Chairman Walker asked to add a time frame on removal of the items.

Matt Gibb added to the motion that miscellaneous debris other than the 2 dozers, 10 wheeler, spare loader, loader bucket, and the trailer can remain stored behind the garage, everything else will be removed by June 15, 2008.   The permit while effective May 15, 2008 will be suspended until that time be inspected by June 15, 2008.

Joe Geraci stated Bob Warren has a fence around the perimeters around the property for outside storage.  We have asked Mr. Kosiba to remove the equipment before and needs to conform to ordinance in LI-1. 

Tom Berger stated all the materials that are not being used for the business need to be removed from the site to conform to the ordinance.

Matt Gibb withdrew his motion to be more clearly stated.

Dan Durham asked isnít the deciding factor of what can remain and what must go, is everything must be screened from the street and so far not granted by the applicant?

Tom Cupples stated my observation regarding this condition and how it applies to the ordinance.  The concerns are under LI-1 and the intent and scope of this particular ordinance pertains mostly to the interest to maintaining a site that is absent of visually nuisance articles.  As far as debris and garbage by ordinance they are described as different materials other than construction equipment, miscellaneous items of machinery, vehicles, both used on/off of the site, and I think the point is if Mr. Kosiba did have an 8 ft. fence with opaque screening or landscape buffer no matter what he put in the rear storage area that visually the site would be enhanced.  I would like to see the property maintained in an orderly fashion.

Tom Berger stated we would like the site cleaned up and filled. 

Matt Gibb asked under ordinance 99 do we have the authority to say no to a permit unless the debris is cleaned up?

Tom Berger stated I think what you were trying to do is allow the condition of granting the approval for him to continue to utilize Ordinance 99 the way that he has been.  I donít want to say granting a variance based on the fact of what we should do that relates to a Planning Commission item. 

George Kosiba stated the violation I received stated the ZBA can approve a variance for storage.

Brad Lare stated we arenít to consider that tonight; itís not part of the process.  We are only here for the renewal of the permit tonight. 

Chairman Walker asked if we grant a renewal on ordinance 99 with conditions? Tom Berger replied yes.

Chairman Walker stated we are trying to work out some type of compromise to make everything work for both the Township and Mr. Kosiba.

Mr. Kosiba stated he was willing to comply.

Revised motion by Matt Gibb, supported by Brad Lare.  In the case of AB-99-2008-03, Pontiac Sand, 445 Brown Road seeking a renewal of Ordinance 99 permit for sand and gravel mining, earth excavation and/or filling and earth balancing.  I move we approve the renewal of the permit subject to the following conditions:  There will be no more than 25 trips per day of single and double haul trucks in and out of the site, dust control measures will be maintained including reasonable chloriding as necessary, petitioner shall be permitted up to 5,000 yards sand and clay and shall be permitted to input fill and earth balance up to 30,000 yards of material on the site, petitioner shall maintain all proper insurance and bonding information as required by the township, resolve the escrow matter, shall repair and replace as necessary all fencing on the site, and place keep out danger signs at intervals not greater than 200 ft. around the site so long as there is water in the existing pit.  The petitioner shall have 60 days to comply with the cited violations for the removal of all equipment and other debris on site subject to Building Department assistance as to the nature of operational equipment in the screening of the same on site.  Hours of operation will be 7 a.m. to 7 p.m. and a variance granted for the slope ratio on the westerly side of the property from 1:3 to what is there now and the petitioner shall be permitted to mine within the 100 ft. setback on the westerly border. Roll call:  Brad Lare-aye, Matt Gibb-aye, Joe Geraci-aye, Dan Durham-nay, Don Walker-aye. 4-1 CARRIED.

  1. AB-99-2008-04, Pontiac Crushed Cement, 327 Brown Road

The petitioner is requesting renewal of an Ordinance #99 permit for sand and gravel mining, earth excavation and/or filling and earth balancing. Chairman Walker asked the petitioner to approach the podium. Pete Granzow was present. Kris Enlow read the review report from OHM.  (Attached)

Joe Geraci asked if the trailer and conveyers are Mr. Granzowís? Pete replied yes, it is all working equipment that is for sale.

Joe Geraci asked is this equipment needed for daily operation on site? Pete replied no.

Joe Geraci stated we are back into a storage issue, is there a problem with moving the equipment? Pete replied I will do my best to remove it.

Tom Cupples stated if the equipment was put in the fence on Bob Warrenís property that would bring the site into compliance.  There was a vibration complaint and Mr. Granzow took it upon himself to resolve the issue. 

Chairman Walker stated insurance and bonds are up to date.

Brad Lare commented regarding a portion of Pontiac Crushed Cement is on Danís property and Pete needs a letter giving permission to use the property.

Pete stated I was made aware of this situation last week and I will get something in writing.

Motion by Joe Geraci, supported by Matt Gibb.  In the matter of ZBA case AB-99-2008-04, I move the petitioner Pontiac Crushed Cement, 327 Brown Road, lots 29 & 30 of Highland Farm subdivision as well .25 acres north of Bob Warrenís property.  In request for renewal of Ordinance 99 permit for sand and gravel mining, earth excavation and/or filling and earth balancing.  I move we approve the permit on the condition that Pontiac Crushed Cement has 30 days to acquire written permission from Danís Excavating that will require him to be within compliance of Section 8.a because of the north side of the crushing operation encroaches on his property according to the submitted survey.  Also within the 30 day period he is to remove all equipment not essential to his operation and/or be stored within some other area of the property that meets our requirements for storage.  We condition the permit upon proper bond and insurance guarantee information if not already done so.  All dust control issues, including chloride be maintained on the site throughout the permit year.  The applicant is anticipating approximately 15,000 yards of material will be waiting to be crushed and 40,000 yards of material will be stored on site.  Approximately 80,000 yards of broken concrete will be hauled in, crushed, and hauled out.  There will be no more than 50 trips per day on site to include both single and tandem trucks.  Hours of operation will be 7 a.m. to 5 p.m. Monday through Saturday.  Failure to comply with all conditions stated in this motion will cause the permit to be revoked.  Roll call:  Matt Gibb-aye, Brad Lare-aye, Dan Durham-aye, Joe Geraci-aye, Don Walker-aye. 5-0.  CARRIED.

  1. AB-99-2008-2, Danís Excavating, Inc., Lots 10, 11, 12, 13, & 14 of Mt. Judah Farms

The petitioner is requesting renewal of an Ordinance #99 permit for sand and gravel mining, earth excavation and/or filling and earth balancing. Chairman Walker asked the petitioner to approach the podium. Brett Baker was present. Kris Enlow read the review report from OHM.  (Attached)

Brett Baker stated we do not have a loader, dump truck, or diesel tank on site.  I donít believe during the site walk there was any part of the fencing that was down.  All the debris has been cleaned up and will be removed in the next few days.  We are only looking to fill our property not anyone elseís and want to correct the condition that has been there a long time so we donít have any more issues.  The depth of the millings will be a minimum of 9 inches and we will continue to take care of the dust issues.  There is water on site due to us not working in the pit, when we move the dirt the water disappears.  Our preference on the fencing is obviously to leave what is there and continue to monitor it as we have been.  Maybe we can put a metal fencing where there are issues of people entering the site in lieu of not replacing the whole fence, which would be costly.  Right now on site we do have danger no trespassing signs on the fence, maybe not every 200 ft. but there are signs.  As far as final grading we are trying to get the hole filled as quickly as possible. 

Joe Geraci stated since this property was denied itís permit November 12, 2007 by the ZBA, he no longer has a permit.  Under Ordinance 99 Section 4.C this board canít grant a new permit.  Before granting a new permit under the ordinance the Board of Appeals shall refer the application to the Township Planning Commission for findings and recommendations.  Correct me if Iím wrong, he was denied his permit, no longer has permit, but is applying to renew what?

Kris Enlow said he is applying for a new permit.

Matt Gibb asked in the referral process itís not required they go through any type of site plan.  The Planning Commission is essentially reviewing the application.

Tom Berger stated the ordinance was written years ago and has not been modified. 

Joe Geraci stated when we denied the permit it took it out of our hands.

Tom Berger stated we sought legal advice but it was an application for a new permit. 

Matt Gibb stated the ordinance states except that a permit for earth balancing.  To me it doesnít seem like it has to go back to Planning Commission for Planners review. 

Tom Berger stated we already have the review from OHM.

Matt Gibb stated I donít think it would need additional review because we already have one and so it would just be placed on the Planning Commission review then come immediately  back to ZBA. 

Brad Lare asked why does it need to go back to Planning Commission? Matt Gibb replied thatís what it says in the ordinance.

Tom Berger stated I think you need to understand the rule has been around for a long time but has never been utilized. 

Joe Geraci stated there is a process but the ordinance states balancing solely upon his property and do we know for a fact it is all his property?

Tom Berger stated there isnít anymore mining operation done from this site, so now anything we do to the property when we import product in is to balance the property.  I believe we are only balancing the property so to complete this job and bring it back to a state where it can be reclaimed. 

Kris Enlow stated the definition I would be looking at is earth balancing.  Are you talking about someone pushing dirt around on their own site or the overall history of the site? 

Tom Berger stated earth balancing by definition means of moving, grating, or leveling of earth, rock, and material.  The request for a permit would go back to Planning Commission if they wanted to mine the property.  If we were looking at taking the ordinance and using it for earth excavation for mining operations, then I believe the Planning Commission would be involved except for a permit for earth balancing by a property owner solely upon the property need not be referred to the Planning Commission.  ZBA is the interpreting body and then we move from there.  There were concerns with other issues on this site but I believe they have agreed to take care of any issues that would be in violation of possible conditions of the ordinance.  I am asking for an interpretation.

Matt Gibb stated I agree with Mr. Berger.  It is the final earth balancing of this site to close off all operations and that is the goal.  To answer Mr. Geraciís question, Danís has submitted a sealed topographical survey indicating the mined area of the pit would be under their ownership of control.

Brad Lare stated in reviewing Section C referral to the Planning Commission the last sentence referring to earth balancing indicates it can be addressed by the ZBA.

Joe Geraci stated I am confused why we denied their permit in November.

Tom Berger stated there were concerns regarding conditions that were not addressed on the property and have been addressed through our engineers.  I think we are trying to accomplish two goals tonight, one will they comply with all the concerns and meet all the concerns based on how we grant this approval and two is it interpreted accordingly to granted.

Chairman Walker asked if we need a consensus before we move forward?

Tom Berger replied yes.  This board and I were not present when this original document was submitted to the township for approval years ago.  The grades on existing properties were extremely different than now, so by balancing it going back to an original condition of what was there years ago.  The one critical condition tonight is because he only wants to work within the boundaries of property they are responsible for but we still have the properties to the east (at one point and time that had been mined and utilized as part of a pit) and the 100 ft. buffer is what we need to work to.  If we canít get that portion to work to get it filled up that would be the easiest point and then satisfy the need to the property of the east.  I believe we have the willingness to get to that point tonight.

Brad Lare stated we should consider this application as it is presented before us tonight.

Dan Durham stated I agree.

Motion by Matt Gibb, supported by Don Walker.  Due to the intent of the Ordinance 99 permit application in case AB-99-2008-02, Danís Excavating.  Due to the purpose of the permit application being in the nature intending to work toward final grade of this particular operation, the operations are going to be contained solely within the property owned by the applicant as confirmed by the survey submitted April 21, 2008.  I move we interpret this falls under the exception to sub section C which is the portion of the ordinance dealing with referral to the Planning Commission and that we exercise that exception and retain review and control of this application before the board this evening.

Chairman Walker asked to add Section 4.C into Section 3.B the definition of earth balancing.

Matt Gibb added our interpretation of that definition match the purpose and intent of the application.

Roll call:  Matt Gibb-aye, Joe Geraci-aye, Dan Durham-aye, Brad Lare-aye, Don Walker-aye. 5-0 CARRIED.

Chairman Walker asked if there was any public comment.

Louise McNabb stated on advice of council we feel Danís turned in a map with an overlay.  I believe Judah Road was only chlorided twice last year and the approach should be treated daily due to the dust.  We own the back portion of lot 9 that should have been rebalanced 5 years ago, we own the back portion of lot 10, and rebalancing should have started a few years ago.  The fence is on our property and I canít mow close to it.  We canít get our fifth wheel out because the road has been destroyed the road that was given to us by the Warrenís and stayed until they decided they could mine the sand there, so the berm was moved.  The fencing has not been maintained in the last 5 years and is not safe.  Danís has done nothing to help the neighborhood and hasnít paid anybody around here for it.  We have to have written information regarding the maintenance on the drive and what their penalties will be if they donít comply.  The township should look out for people that have been paying taxes for 55 years, Danís hasnít been paying taxes, and as soon as he gets what he wants he will be gone.

Eugene McNabb stated the ordinance states anytime you apply for a new permit you have to go back to the Planning Commission.  Our lawyer says if they donít go back to the Planning Commission call me tomorrow because they have to have permission from the Planning Commission to go back to the Zoning Board.  There has never been anything said in past years regarding lots 9 and 10 being leveled off, now this engineer seems sensible and Tom Cupples is trying to straighten this mess out that has been created by the township.  Sixty days after his permit expired the township was suppose to level our property off and there has been no movement at Danís.   

Louise McNabb stated we have worked on this for many years and if this permit is granted, they will not be the only ones being sued. 

Kris Enlow stated from the plans that were submitted the easterly portion would be the property that should be filled in.

Matt Gibb stated that is not on the McNabb property, it is just within the setback area.  What you are saying is there may be some very old aspect of an original mining and excavating permit on lots 9 and 10 that was either legally transferred, assigned, who knows at this point, itís always been a mystery. 

Kris Enlow stated we donít have any written documentation on any type of agreement between the owner of lots 9 and 10 and whoever was operating the pit at the time.

Joe Geraci stated are we sure we are balancing between his property.

Tom Berger commented Danís has not asked to go outside of his property.

Joe Geraci asked if our engineer can tell us without a doubt the surveyor staked the property?

Kris Enlow replied no, but for situations of large parcels a lot of times they will do the survey from the air.  The surveyors can cover a large area more efficiently than having a survey crew.  To answer your question the plans were stamped with a seal as a professional surveyor by doing so, it is an authentic document that was submitted to the township for the review process.

Tom Berger stated I have talked to Kris Enlow on more than one occasion and I think the biggest concern is we knew McNabbís at one time must have allowed someone to enter their property.  We donít know what type of contingencies were done through the sale of the land.  We donít have knowledge unless someone submits the information to us.  When we looked to this plan we only looked at what pertained to this property with the descriptions he gave us.  We have to fill part of the property to get the slopes back up, they are too drastic now.  We have looked at previous overlays dating back from 1980 with aerial views regarding changes.   

Eugene McNabb stated at one  time Judah Mt. was the highest spot in Oakland County and where my barn sits there was a hill.  Bob Warren took that and we had an agreement of taking it at 10:60 all the way back.  Even on the top of the hill on our property there is topsoil that came off of Bob Warrenís pit and when Danís purchased the property he took over Ordinance 99.  The planning map clearly states that all effective areas will be taken care of according to the township specs. 

Matt Gibb stated we closed Danís down and set very stringent conditions they did not follow so we denied their permit.  I get frustrated being told we havenít done anything but we have.  We have constantly monitored the site, closed the pit, made them clean up the debris, and every time you have brought something to our attention we have acted in someway.  Now we are to the point you are bringing up information about lot 9 and I donít remember this ever being part of the discussion of the permit renewal.

Eugene McNabb commented no it hasnít

Matt Gibb stated now you are threatening we are all going to be sued and I have no idea what you are talking about. Eugene McNabb stated Iím talking about lot 10 and I am saying your engineer and inspector let it ride and did not reclaim lot 9.  The township is obligated to follow the planning map.  You have no authority to help the township in anyway. 

Tom Berger asked Mr. McNabb if he would like to see the pit filled? Eugene McNabb replied I want everything taken care of.

Tom Berger asked how can Danís do that if you donít give him permission? Eugene McNabb replied I didnít say I was going to give him permission to balance the property itís not Danís responsibility.

Tom Berger asked who do you feel is responsible? Eugene McNabb replied the township because he doesnít have a permit.

Matt Gibb stated but itís not Danís property.  It sounds like you are complaining regarding the original permit to Bob Warren. Eugene Warren replied yes, Warren had the permit.

Matt Gibb stated I donít believe Danís has ever excavated on your property. Eugene McNabb stated Danís took over Warrenís responsibility.

Matt Gibb stated it is the original permit from Warren. Eugene McNabb stated I never signed it.

Matt Gibb stated you had a verbal agreement between Bob Warren and yourself.

Eugene McNabb stated that is correct.

Tom Berger stated we have been trying diligently to try and work with the current owner of the property.  We have a lot of time and effort into this situation and the township has taken on responsibility to try and resolve the problem.

Eugene McNabb stated it is the townships responsibility to balance the property and if there is not enough money in his account you can put a lien on his property.

Tom Berger stated as part of a resolution to any problem the township has always tried to work in the direction to get something resolved.  I believe by letting Danís balance the property that is working in that direction.

Eugene McNabb asked why wasnít he stopped from taking our 100 ft. setback?  Anytime an agreement is made it is called royalty, you want to come into my area we make a deal, if we donít make a deal you donít come in. 

Chairman Walker asked Mr. McNabb how do you want this to come out?

Eugene McNabb replied when itís all done I want our property balanced off and restitution from Danís but I want the township to do their job and balance off our property.

Dan Durham asked Mr. McNabb if he had a previous lease agreement with someone? Eugene McNabb replied the back portion was verbally leased to Bob Warren.

Dan Durham asked to remove dirt? Eugene McNabb replied yes.

Dan Durham stated on lot 10 you had a lease agreement that enabled Bob Warren to remove dirt from that area. Eugene McNabb replied yes. 

Matt Gibb stated itís a catch twenty-two, if we issue the permit it starts to get filled and reclaimed and if we donít nothing happens.  We are talking about off site area that is not part of the application tonight and I canít decipher whose permit, whose agreement, and hand shake.

Brad Lare stated if I see a signature and a seal on the topo I have to make my decision on documents in front of me not on verbal agreements discussed decades ago.  Based on the motion made earlier from our interpretation I believe we need to examine the documentation in front of this evening and form a decision.

Chairman Walker asked to fill in the contentious area, how much fill are we talking about? Brett Baker said roughly 40,000 yards.  We have several jobs right now to start filling the site.

Matt Gibb stated 10:60 is the grade you are trying to fill to. Brett Baker replied at least in the interim.

Matt Gibb stated every elevation on the topo is higher than 10:60 and Mr. McNabb is  saying this is a fraudulent document.

Brett Baker stated I have no idea what happened on lots 9 and 10, it was long before I came to Danís Excavating.

Matt Gibb stated McNabbís are concerned regarding the 100 ft. buffer. Eugene McNabb replied yes that was removed illegally.

Matt Gibb stated my motion was an interpretation of this is just land balancing. 

Tom Cupples stated I have been working on this issue for 11 months and have focused on resolving this one issue before us tonight.  I have tried to liaison this matter between the townshipís position.  We were on the verge of resolving this whole matter between Danís and McNabbís and quite frankly Danís have agreed to all the conditions.  The whole point McNabbís confronted me was to help them get that area filled in.  I have to speak on Danís behalf they have agreed to all the conditions and want this resolved as well.  I feel Mr. McNabb has thrown a bolt into the motor here with the issues of the threats, lawsuits, and civil litigation.  The one person who came to me to resolve this matter is now stopping it.  Before you make any decision Danís vice-president has  made a verbal commitment to abide by all the issues and conditions set forth. 

Motion by Matt Gibb, supported by Brad Lare.  In the matter of ZBA case AB-99-2008-02, Danís Excavating, Inc. Lots 11, 12, 13, and 14, of Mt. Judah Farms.  In receipt of a letter from our township Engineer dated May 8, 2008, commencement of that letter indicate the review of the application material submitted by Danís Excavating to support itís application for a new Ordinance 99 permit for the 4 lots designated.  On page 6 of the report, in the conclusion of the report our opinion the topographic survey and application materials as submitted are in substantial compliance with township Ordinance 99, in the townships engineering standards we recommend a permit be issued.  I concur with that recommendation, I move we issue a permit under Ordinance 99 for earth and land balancing of lots 11, 12, 13, and 14 of Mt. Judah Farms pursuant to the application material submitted.  The permit would be subject to conditions.  The conditions will be enforced strictly by our Ordinance Officer this will allow him in conjunction with the Building Department  to suspend the permit operations at the site.  We have had these conditions before but where not so strictly enforced.  Our Ordinance Officer Tom Cupples understands what it means to violate and your permit will be suspended, Danís understands this as well.  Certain conditions will be provided as part of issuing the permit.  The approach between Judah Road and the entrance to Danís Excavating will be suitably covered with fines and asphalt at the discretion of the Building Department to maintain dust and other control.  The haul route established for Judah Road will be renewed with Oakland County Road Commission and a specific plan of grading and chloriding pursuant to the haul route will be kept on record at the township for enforcement purposes.  Additional dust application for the entrance and within the site shall be maintained, including chloriding as necessary to be enforced and at discretion of the Ordinance Inspection Officer.  If we go out to the site and dust is blowing the Ordinance Officer has the ability to tell them to Chloride today and if not there will be a violation and have the ability to suspend the permit.  The applicant needs to provide up to date bond and insurance information as required under Ordinance 99.  All fencing will be maintained and those areas Mr. Cupples  deems need heavier fencing will be replaced with permanent fencing for greater control.  The danger signs will be placed at intervals not greater than 200 ft. and perpetual be maintained.  The 100 ft. setback to the east property line will be the first area of reclamation under the earth balancing permit and will be monitored by the township.  I believe this is appropriate under Ordinance 99 due to our prior interpretation of our ability to do this without Planning Commission review. 

Kris Enlow asked to add the millings would be a minimum of 9 inches.

Matt Gibb amended motion.

Joe Geraci asked did you mean the east property line on lot 11? Matt Gibb replied yes.  Danís Excavating does not have signed permission from the property owner of lot 10, therefore the lot canít be included in any permit application.  I donít believe there is enough evidence before the record to consider any other lots other than 11 through 14.

Matt Gibb amended motion.

Roll call:  Joe Geraci-nay, Brad Lare-aye, Don Walker-aye, Matt Gibb-aye, Dan Durham-aye. 4-1 CARRIED.

Secondary motion by Matt Gibb, supported by Don Walker.   At this time we direct through Mr. Yaros to inquire the Supervisors Office to authorize our attorney to investigate the history of the permitting on lots 9 and 10 and obligation or responsibility the township may have as a result of the original permitting and ask the Supervisor to have the attorney provide a written opinion to the Board of Trustees. Roll call:  Brad Lare-aye, Dan Durham-aye, Brad Lare-aye, Matt Gibb-aye, Don Walker-aye. 5-0.  CARRIED.                                                                                                                            

6. PUBLIC  COMMENTS: Eugene McNabb stated the board overlooked the ordinance states anybody affiliated with the permit has to sign it.

7.  COMMUNICATIONS: None.

8. COMMITTEE  REPORTS: None.

9. MEMBERSí  COMMENTS: Brad Lare thanked Tom Cupples for his comments and documentation presented tonight.

10. ADJOURNMENT: Motion by Brad Lare, supported by Joe Geraci to adjourn. 

All ayes.  CARRIED. Meeting adjourned at 11:31p.m.