ZBA votes to deny BCP use variance

Board ordered by judge to hold vote

By: Kristyne E. Demske | St. Clair Shores Sentinel | Published November 7, 2011

Following the order of a Macomb County Circuit Court judge, the Zoning Board of Appeals voted 5-2 Nov. 3 to deny a company’s request to build a gas station and convenience store kiosk on the corner of Nine Mile Road and Alice.

Zoning Board of Appeals Chairman Duane Michno said the matter was before the board strictly for a vote to approve or deny a use variance for the property, which is currently zoned B-1, not for another public hearing.

“It is a mandate by Judge (Edward) Servitto that the zoning board has to make a ruling on the case, which was not done at the previous meeting back in April,” he said. “Neither side will be represented. They will not be commenting.”

The property, on the southeast corner of Nine Mile and Alice, is owned by BCP Limited. The company is trying to sell the parcel to Kroger, which wants to put a gas station on the premises like the one it has installed at Harper Avenue and 13 Mile Road. Doing so requires a zoning variance, which was denied by City Council in February.

The matter went before the Zoning Board of Appeals April 7, but a motion to approve the request did not get support, so no vote was taken.

BCP Limited filed a lawsuit May 25 against the city seeking to stop St. Clair Shores from enforcing the current B-1 zoning classification or to grant a $25,000 judgment — plus interest, costs and attorney fees — to BCP for the city’s “unlawful regulatory taking of” the property without just compensation.

It’s because of that lawsuit that the matter was before the ZBA once more.

City Attorney Robert Ihrie said the order from Judge Servitto states that BCP Limited’s “zoning use variance request is remanded to the Zoning Board of Appeals for the limited purpose of a vote on the matter and providing reasons for its decision.”

“The Circuit Court judge in this matter is asking for a conclusive vote one way or the other.”

He said the ZBA members were provided with the minutes of the April 7 meeting, and so no further discussion would be held on the matter in order to “for us to stay within the clear confines of the judge’s order.”

Ihrie did remind the board members, however, what four issues they must consider when deciding the use variance: whether the property cannot reasonably be used in a manner consistent with the existing zone; whether the landowner’s plight is due to unique circumstances and not that facing the surrounding area; that the variance will not alter the character of the surrounding area; and that the difficulty is not a result of the applicant’s own actions.

Commissioner Steve Scavone made a motion, supported by Commissioner Pete Stellas, to deny BCP Limited’s request.

“I felt that the petitioner did not prove that their land could not be used in the manner in which it’s zoned,” he said, adding that he believed that increased traffic, noise and fumes would change the character of the neighborhood. “I fail to see proof provided by the petitioner that a hardship exists for the petitioner.”

Commissioner Thomas McKenney and Michno voted against the motion, but it passed 5-2 amid audience applause, denying BCP Limited’s request.

The company’s attorney, Michelle Harrell of Southfield, said they were very disappointed at the outcome

“We had hoped that the board would have made the right decision and considered the interests of the property owner and the significant majority of other residents of the city,” she said in an email message Nov. 4. “One would assume that the city could use the money that will be paid to city attorneys for other city purposes than opposing this small development.

“Now we must proceed with our court case.”

But nearby resident Jim Taylor said he commended the board’s actions.

“Thank you for maintaining my neighborhood,” he said. “A gas station just doesn’t work.”

The parties are scheduled to be in court Nov. 10 for a status conference on the case.