The attorney for Porter Beach resident Ray Cahnman said Wednesday his client likely will go to court seeking clarification of town code rather than request a variance from the town Board of Zoning Appeals.

Robert Welsh said Porter’s zoning ordinance that limits fencing and screening, including trees, to 6 feet in height or less is confusing and an ordinance has to be understandable to be enforceable.

The Porter BZA could waive the requirement, but Welsh said it’s his recommendation that a judge be asked to determine whether the applicable zoning section is an objective standard.

At issue is Cahnman’s landscape contractor having planted 24 trees, some large white pines, prompting complaints from neighbors and lengthy discussion yesterday by town department heads meeting as the Technical Advisory Committee.

TAC recommended town attorney Patrick Lyp be advised of the situation.

Said Porter Public Works director Brenda Brueckheimer, “Those trees had to cost (Cahnman) a fortune; they’re huge. It doesn’t look right at the beach. It looks awful. It looks like a Christmas tree farm on the beach. Five years from now it will block everyone’s view.”

Brueckheimer said Cahnman should have planted beach grass, not a forest.

Welsh offered to take photos from neighboring properties to demonstrate that residents can see over the trees, and he cited at least 20 other instances at the beach where someone’s pine trees would be a screening violation.

That wasn’t the only problem. Newly appointed Porter director of engineering and development Matt Keiser said a map provided by Welsh indicates the trees likely were planted over a large portion of Cahnman’s private septic field.

“I suppose we can find out from the landscaper if he hit any laterals,” said Welsh. Brueckheimer and building commissioner Art Elwood agreed to inspect the site.

Keiser said a malfunctioning septic system would drain into Lake Michigan and make the house uninhabitable, both instances something the town should protect against.

Elwood said he ordered the tree planting stopped because the screening issue was raised and no town permit had been issued; once it was, the trees weren’t put in the locations agreed.

TAC and Welsh debated what the trees are intended to do. Brueckheimer said it looks like they screen Cahnman’s view from the Dearborn Street parking lot although she conceded an attempt was made to preserve other residents’ views.

Welsh said the trees only interrupt the view. “There’s nothing wrong with a person wanting to break up an undesirable view. That doesn’t mean it’s a screen.”

Brueckheimer said if the trees aren’t a total screen today, they will be tomorrow. Welsh asked how a 4-foot tree that isn’t in violation today would be considered one five years from now.

Commented Elwood, “Here’s the Building Department stuck on tree policing.”

Several times town planner Jim Mandon said the issue needs to go before the BZA.

“The purpose of the ordinance is not to let people wall themselves in or out, to segregate them from others. That doesn’t mean you can’t do it; you can’t do it by right. You have to ask for a variance,” Mandon explained.

If TAC doesn’t like the screening language it should recommend that the zoning ordinance be changed, he added, but for now it is what it is.

Some questioned whether the zoning ordinance applies in this case to Porter Beach at all. “You’re asking us to say it’s OK and I can’t do that, say it’s fine, issue the building permit so we can move on,” said Mandon.

He noted for 12 years there have been repeated, failed attempts to draft special overlay zoning for Porter Beach.

A new committee currently developing overlay recommendations was formed following public outcry in March, 2008 when the BZA voted 3-2 granting Cahnman three variances to build a garage on an undersized parcel near his 311 Duneland Dr. home.

In the tree matter, Welsh said he’s not trying to intimidate the town by threatening to go to court before the BZA. Typically, a petition is heard and the petitioner seeks judicial review after the BZA decision if the relief sought isn’t granted.

Police chief James Spanier said maybe getting judicial clarification on the ordinance is the best thing to do at this point.

Elwood speculated that if the north side of Cahnman’s house was a junk yard instead of Lake Michigan, nobody would say a thing about the trees.

Posted 5/7/2009