Two changes to Traverse City’s zoning code that would offer flexibility on building height appeared on city agendas this week. One – a change granting extra building height for enclosed rooftop amenities like bathrooms, storage closets, and community spaces – was unanimously supported by planning commissioners and now heads to city commissioners for final approval. But another – a change that would allow an extra five feet of height on buildings facing underground contamination challenges – was tabled for further review after city commissioners raised concerns about the proposal.

After an initial discussion July 6 and a public hearing Tuesday, planning commissioners unanimously voted this week to recommend approval of a zoning ordinance change for enclosed rooftop spaces. According to City Planning Director Shawn Winter, an increasing number of developers are seeking to offer rooftop spaces and amenities in their buildings.

“This is not surprising in that as the value of land has increased, maximizing the efficiency of land use often results in buildings that do not have room left on the lot for yard area at grade, leaving the rooftop as the next best viable option,” Winter wrote in a memo to planning commissioners. “A byproduct of the pandemic has been a new expectation to (provide) outdoor amenities, from sidewalk cafes to residential courtyards. Not to mention we live in an area that provides commanding views from a rooftop vantage point.”

Rooftop uses are already allowed under the city’s zoning ordinance. However, current rules do not allow for having habitable enclosed space on the rooftop above the maximum height of the district. Winter pointed out that the city doesn’t count non-habitable features toward building height, like elevator shafts, stair towers, and utility penthouses. But because habitable space counts toward height, city staff often make developers “remove small restrooms, storage closets, and other reasonable spaces intended to support rooftop access from the plan sets in order to be approved,” Winter wrote. Some developers have sought and received a variance from the city’s board of zoning appeals, but the variance process “comes with a lot of uncertainty” – with some developers receiving approval but not others – and is not a best practice for regulating land use, Winter said.

Accordingly, the city attorney recommended updating the rules to make them consistent for developers. The proposed new ordinance would allow habitable enclosed space on rooftops to exceed a district’s height limit by up to 15 feet, provided that the space is used only for restrooms, storage, community rooms for building occupants, or food and beverage service. The enclosed space can’t take up more than 20 percent of the rooftop area (or a maximum of 1,650 square feet) and must be set back 20 feet from any street-facing façade and rear property lines if next to a residential neighborhood. The new rules also state that food and beverage service must end between 10:30pm and 6am – and live music must end between 10pm and 7am – when rooftop spaces are next to residential neighborhoods.

Planning Commission Chair David Hassing said he thought it was an “oversight in our zoning” to not have addressed spaces like bathrooms and storage closets sooner, given that rooftop bars and other amenities are already allowed. He emphasized that the rule changes don’t expand or add any new uses on rooftops, but simply allow building owners to enclose a small percentage of their roof space without being penalized for extra building height. The city must still follow a recent court ruling stating that any building features over 60 feet will trigger a public vote, so enclosed rooftop spaces would need to stay under 60 feet. But if a district had a maximum building height of 45 feet, for example, a building owner could have an enclosed restroom or community room on part of the roof that could go up to 60 feet. Planning commissioners unanimously supported the ordinance change, which now goes to city commissioners for final approval.

Another proposed change to height rules has been put on hold, however, as city commissioners voted Monday to send the proposal back to the planning commission for further review. The change would allow for an extra five feet of building height beyond the 45-foot maximum in the C-4a district. The amendment would allow the extra height under specific circumstances ­– notably the presence of contaminated soil or other environmental conditions – with the approval of the planning commission. The change is intended to allow properties located on contaminated soil with high water levels – like the Hotel Indigo and a planned new Marriott hotel next door – to have a few feet of height flexibility so they can put parking and basements below-ground without disturbing the water table or risk losing the top floor.

The amendment was sought by Jeff Schmitz of J.S. Capitol Group, which is looking to build the new Marriott (pictured, rendering). Soil analyses identified extensive contamination and high water levels under the property. That means underground parking can’t be sunk down as deep as it normally could, pushing the entire building up further than it would be without those conditions. Accordingly, J.S. Capitol Group could potentially lose its top floor without a height variance due to historic contamination that wasn’t the developer's fault, Schmitz argued. Planning commissioners voted 4-3 in July to recommend approval of the zoning change to city commissioners.

But city commissioners Monday flagged several issues with the proposal they wanted to see addressed. One was giving final approval over developer requests for extra height to city commissioners, not planning commissioners. Commissioner Tim Werner said that instead of awarding extra height based on underground contamination, the city could make the extra height available to any projects that meet certain city goals – such as offering green roofs, energy efficiencies, or stormwater improvements. He said the planning commission might be able to identify other goals they want to incentivize as well.

After an initial vote to pass the rule change failed 1-6 – with only Commissioner Mitch Treadwell in support – commissioners voted unanimously to send the proposal back to the planning commission for further revisions. The board’s motion requested that planning commissioners complete their review within six months, meaning an updated proposal could head back to city commissioners for consideration by early 2023.