Graham Jaehnig/Daily Mining Gazette Keweenaw County Zoning Board of Appeals Chairman Mark Ahlborn questioned how the ZBA grant a zoning variance requested by someone other than the property owner.

EAGLE RIVER – A two-and-a-half-hour public meeting of the The Keweenaw County Zoning Board of Appeals (ZBA) Thursday, regarding a Right of Way setback on Front Street adjourned without granting the requested variance.

The hearing was for the ZBA to review and take public comments on a variance request originally submitted on Dec. 4, 2023, by the owner of Fitzgerald’s Restaurant.

The zoning variance request is related to the construction of an attached smoker enclosure at the business located on Front Street, in Eagle River. The Keweenaw County Road Commission (KCRC) issued a Stop Work Order on the project in August, 2022, stating the new structure was encroaching on the right-of-way of Front Street.

While public comment at Thursday’s hearing was overwhelmingly in support of the variance, the ZBA felt it could not overlook one major point. According to the Keweenaw County Road Commission Administration Policy, Fees and Forms Regulating All Work or Activity On and Within County Right Of Way (ROW), a right-of-way is defined as “the land area used for the construction, reconstruction, or maintenance of a County Road. Rights-of-way are usually 66 feet wide, but can be more or less and/or as defined in a recorded plat. The entire right-of- way is under the control of the Road Commission, not just the driven path.”

The foundation of the smoker enclosure is 3.2 feet from the edge of the pavement on Front Street, and is therefore on property owned by Houghton Township and the road commission.

Steve Tinti, attorney for Keweenaw County said the intent of the county’s zoning ordinance is in order to file a variance request, the applicant needs to the property owner.

“If you are looking for a solution and you had a request for a variance signed by the applicant in Houghton Township, and the Board and the Keweenaw County Road Commission, you would get around that issue, but you don’t have that. That’s our problem today,” Tinti said. “The Zoning Board of Appeals could ask the applicant why don’t you go back and do that? See if that’s possible. Then you can look at the matter without whose property the building is on.”

ZBA Chairman Mark Ahlborn stated the case for the Board of Appeals. “In my mind, I wonder if we can, or should, act on a variance request for property that they do not own. I would feel a lot better about our situation here if they had already got that cleared with Houghton Township.”

“The corner of the existing building, the addition, is virtually on the property point,” Ahlborn added. “They have zero setback, so anything that they do, that they have built on already, with very little exception, because of the angle of the building versus the angle of the property line, is not on their property. Everything that they’ve built there – a very large percentage of it – is built on Road Commission property.”

Ahlborn then asked how the ZBA could grant a variance on property not requested by the property owner. “What they’ve done is not on their property,” he said. “And I don’t know how we can make that right?”

During the hearing, Ryan Plecha, attorney for Fitzgerald’s, approached Tinti and the two spoke quietly amongst themselves. “A development has occurred at this time that I think it may merit for us to go into executive session to discuss pending litigation,” Tinti said.

After a brief executive session of the attorney and the ZBA members, Tinti publicly suggested a recess.

“I recommend to the Zoning Board of Appeals that we adjourn this hearing at this time to allow the potential entry stipulation to order, or to allow a longer period of time for this Zoning Board of Appeals to render this decision with the intention that the parties are looking at options to clear up legal issues that are present,” Tinti said, suggested scheduling the next hearing for approximately 90 days from Thursday. The ZBA members unanimously voted to suspend the hearing for the suggested time period.