After 37 years of paying his property taxes and trying to be a good neighbor to those around him, John Xerri feels Oxford Township has failed him and ultimately violated his rights.
‘You people got me,? Xerri told officials at the Sept. 22 township board meeting. ‘I’m dead in the water.?
Xerri, who resides at 1820 Lakesview Blvd., wanted to build a private garage on a vacant parcel of land he owns directly across the street from his home, which already has an attached garage.
The proposed detached garage would have been used to store Xerri’s pontoon boat and small trailer, which are currently legally parked on the vacant lot.
Xerri applied for a construction permit in June, but was denied because the township zoning ordinance states an ‘accessory? structure (such as a garage) cannot be constructed unless there is a ‘principal? structure (such as a home) ‘being constructed or already established on the same parcel of land.?
But Xerri argued there are space limitations on his property, which prevent construction of a principal structure, or residence, on it.
Since 1971, Oakland County has owned permanent easement rights to the ‘north 45 feet? of the parcel, which allows it to operate and maintain an underground sanitary sewer lift station.
Although Xerri owns the entire parcel and pays property taxes on all of it, he cannot construct any permanent structures within the county’s permanent easement area, which amounts to approximately half of the lot’s size.
The county’s easement area, coupled with the lot’s already small size, would make it impossible to have the 35-foot setbacks required for a house.
A detached accessory structure only requires 10-foot setbacks, according to the ordinance.
Xerri said the county’s easement would also make it virtually impossible to run the necessary utilities to a residence on that parcel.
‘I could never put a house there, even if I wanted to,? he said.
Xerri said the only thing he has room to build is the 960-square-foot garage he proposed to sit on the southern portion (or rear) of the lot.
In a July 2 letter to Xerri, the Oakland County Drain Commissioner’s Office indicated it had ‘no objection? to the proposed garage’s construction as it appeared it ‘would not interfere with the day-to-day operation and maintenance of the sanitary lift station.?
In addition to the county, Xerri also received no objections from his neighbors, many of whom actually supported the project. Neighbors Fanar and Rick Wright, Brendan and Carol Doyle, Fran and Marge Bertram, and Hal Nixon all approved of Xerri’s efforts.
Xerri and his neighbors viewed the garage as an improvement to the vacant lot, which frequently gets illegally used by some people as a dumping ground, making it an eyesore and safety hazard.
Over the years, Xerri said he’s spent in excess of $500 to have the lot cleaned up. Broken concrete, bricks, branches, grass clippings, bottle, cigarettes and used condoms are frequently dumped on the property, he said.
Xerri said building a garage with some landscaping (grass, shrubs, etc.) in front of it would make the lot ‘look occupied? and discourage illegal dumping.
Determined to not only use, but improve his property, Xerri pleaded his case before the township’s Zoning Board of Appeals Aug. 9 and requested a variance to the zoning ordinance’s requirement of a principal structure in order to build an accessory structure.
The ZBA voted 6-0 to deny Xerri’s request because of it’s ‘inability . . . to grant use variances.?
‘It was the feeling of the ZBA that we just don’t have the right to grant that,? said township Trustee Jerry Dywasuk, who sits on the ZBA, at the Sept. 22 township board meeting. ‘I don’t know if anybody has the ability to grant a use variance.?
Dywasuk questioned whether or not the issue should have been sent to the ZBA in the first place.
‘Yes indeed, it was appropriate to go to the ZBA,? said Building Official/Zoning Administrator Mike Darling. ‘Anything in that (zoning) ordinance should be appealable to the ZBA. That’s what it’s there for.?
Darling told officials there’s a ‘gray area? in the zoning ordinance because in one section it states an accessory structure can’t be built without a principal structure on the same parcel, however in another section it states an accessory structure is a ‘permitted principal use? in single-family residential districts but does not specifically indicate whether it has to be on the same lot as a principal structure.
Following the ZBA’s denial, Xerri wanted to appeal his case to Oakland County Circuit Court. He contacted an attorney who informed him the judge would request a copy of the meeting minutes and an audio recording of the proceedings to review.
When Xerri requested an audio tape of the Aug. 9 ZBA meeting, he was told one was not available because the new recording system malfunctioned and as a result, the tape was blank.
Without a recording of the proceedings, Xerri’s attorney told him his court appeal would be costlier because it would turn into a ‘he said/she said argument? of his word against the ZBA board. A retired teacher of 34 years, Xerri said he cannot afford such a legal battle.
Without a meeting tape, Xerri said, ‘This thing could take forever at my expense and I’m not ready for that.?
So Xerri went before the township board on Sept. 22 and asked for his case to be referred back to the ZBA, at no charge, so it could be reheard and recorded.
Treasurer Joe Ferrari, himself a former ZBA member, supported Xerri’s request because based on his experiences the judge will request both the meeting minutes and a tape of the proceedings. Ferrari said if Xerri appeals and the judge learns there’s no tape, he or she will remand it back to the ZBA.
Having the township board remand it back to the ZBA would ‘eliminate (that) middle step? and save both Xerri and the township some legal costs, Ferrari said.
Dywasuk opposed sending the case back to the ZBA.
?(Xerri) had a hearing and the ZBA found they didn’t have a right to grant a use variance. So, this is a fruitless exercise to put this through the ZBA again,? Dywasuk said.
‘If you (the township board) don’t like what the law says and you think people should be able to build (accessory structures) on lots (without principal structures), then change the law,? Dywasuk told his fellow township officials. ‘The ZBA found what I believe was correct.?
‘I’m not sure what having another meeting is going to do, except provide a tape of something that’s not the real thing,? Dywasuk noted.
ZBA member Sue Bellairs also opposed remanding the Xerri’s case back for a rehearing because the exact same words and language used during the first hearing cannot be duplicated.
‘How can you ask a board to go back and do the same thing?? Bellairs said. ‘I just don’t think you’re going to get an accurate picture of the ruling by rehearing the case again.?
‘The ZBA fully understood the case that came before them. And if the tapes were lost, that isn’t the fault of the ZBA,? Bellairs noted. ‘You have a record. You’ve got the minutes that have been approved.?
Clerk Clara Sanderson asked Xerri if the written meeting minutes alone would suffice for an appeal.
‘The minutes are not that accurate,? Xerri replied. ‘A number of statements critical to my request were somewhat turned around.?
Ferrari made a motion to remand the Xerri case back to the ZBA for a rehearing at no cost to the couple and to provide them, at their request, a copy of the meeting tape and minutes.
The motion failed in a 4-3 vote with Dywasuk, Sanderson, and trustees Shirley Clancy and Charles Kniffen voting ‘no? and Ferrari, Supervisor Bill Dunn and Trustee Pat Fitchena voting ‘yes.?
Without the ZBA meeting tape, Xerri said the township has ‘not allowed me to have due process.?
‘I’m being stonewalled,? he told officials. ‘I don’t have the means to appeal.?
Xerri said he also feels his constitutional right to use his property has been trampled by the township.
‘I feel violated because I’m not being allowed to use a piece property I have paid the taxes on, I’ve maintained and I own,? he said.
Unfortunately, Xerri’s appeal to the township board was his ‘last hurrah? regarding this matter.
‘Normally, the township would have one hell of a fight on its hands,? said Xerri, but his financial constraints coupled with concerns over the health of his wife of 47 years, Joyce, have put paid to the garage project.
‘I don’t want to add to my wife’s stress,? he said. ‘It’s not that important to me to gamble my wife’s health.?
?(The township’s) lucky they’ve got somebody who’s older, a little bit more tired, financially-strapped and concerned about his wife,? Xerri said. ‘Otherwise, I would give them a run for their money.?