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T.he White County Area Board of Zoning Appeals met Thursday, March 21, 2013, at 6:00 p.m. in the Commissioners’ Meeting Room, Second Floor, County Building, Monticello, Indiana

Members attending were: Carl Hites, Dennis Sterrett, Randall Conwell. Absent: Richard Holmes, David Rosenbarger.

Also attending were Attorney Abigail Diener, Executive Director Joe Rogers, and Board secretary Erin Carlson.

Visitors attending were: See Attached

The meeting was called to order by Chairman Hites at 6:00 p.m.




Minutes: Prior to the Board's review and approval of the 2/21/13 minutes, Director Rogers provided an update regarding the Findings of Fact process. He reminded the members that he and the Board attorneys had been working to bring BZA process and procedures more in line with current court precedents and state statutes, and that one of the critical issues addressed was the Findings of Fact format and content. Findings of Fact are now being generated as individual documents, prepared by Director Rogers and reviewed by Board secretary Carlson, and attached to the minutes. Approval of the minutes from now on will also constitute approval of those Findings of Fact. With a majority vote to approve, these Findings of Fact then become a permanent representation of the entire Board's approval, even in the event of a split vote. Going forward, unless Ms. Diener foresees any issues with the new Findings of Fact format or process, we will make these a permanent part of our approval process.

There was a motion by Randy Conwell and a second by Dennis Sterrett to approve the meeting minutes of 2/21/13 as written.

Appeal - Lewellen: Chairman Hites noted that the Lewellen Appeal has been continued until the April 18, 2013 meeting, and asked therefore that the members move forward with variance applications.

Variances & Special Exceptions

Note: At the introduction of each case hearing, Director Rogers requested that the Staff Report be incorporated into the official record of the meeting, to be used as a reference document for the Findings of Fact for each hearing.


#2878 - Marilyn Holscher Variance: That part beginning at the Northwest corner of Lot Nine (9) in the Second Addition to Golden Hill in Union Township, White County, Indiana, commonly known as 5794 E Golden Hills Dr, Monticello, Indiana. Further clarified as the East Part of Lot 9, original plat, Second Addition to Golden Hill Subdivision.

Violation: None

Request: Applicant is requesting a 3' front setback (lakeside) to allow construction of an in-ground swimming pool. The required front setback for properties in this L-1 zoning district is 30'.

Director Rogers provided a summary of the variance request, including a reading of the Staff Report. He advised that the applicant's neighbor to the northeast, Ms. Martin, has no objections to the request, and that the office has received no written or verbal objections to the petition, i.e. concerns regarding obstruction of the lake view or impaired enjoyment of the lake.

Chairman Hites advised the applicant that because only 3 Board members were present and that 3 votes are required for a majority, she had the option of continuing her request until the meeting scheduled for April 18th. He stressed that she would be required to receive all 3 attending Board members' votes in favor in order to receive approval. If all 3 members were to vote against the petition, on the other hand, the denial would be binding. However, should the decision be split, either way, the application would be continued until the next meeting. After discussing this process in further detail, the applicant agreed to move forward with the petition with the Board members present.

Director Rogers asked Chairman Hites to provide an overview of the property pictures that he took on the office's behalf. Chairman Hites walked the audience through multiple views of the house, neighboring properties, and the proposed pool location. During the presentation, the applicant's neighbor to the northeast, Wanda Martin, was introduced, as was the builder of the proposed pool, Terry Pletch. Mr. Pletch interjected during the display of photographs that a) the applicant's property line is actually further out towards the lake than it was first thought, as the updated survey will show; and b) the existing retaining wall will not be disturbed.

When Randy Conwell asked if the pool would be fenced, the applicant and Mr. Pletch advised that it would have a motorized cover on it. Statute requires either a fence or a motorized cover for safety; the applicant chose to go the motorized cover route so that there would be no fence to obstruct neighbors' views.

Chairman Hites asked how stable the ground would be when digging for the project began. Mr. Pletch answered that there are always unknowns, as there is no way to know how the existing retaining wall was constructed until digging begins. He stressed that the pool walls will be steel, the bottom of the pool will be brick mortar with a liner, and that the rest will be #4 compacted stone which will augment the existing retaining wall. He will not use dirt.

Dennis Sterrett asked if the water table would pose a problem. Mr. Pletch replied that it would not, not on a shallow pool such as this one. This pool will have a 6' deep end; at no point will the pool be closer than 1 1/2' above the lake level.

Randy Conwell asked if there would be overflow of any kind, to which Mr. Pletch responded the water would be kept in the pool year-round, treated with water softener salt converted to chlorine. Nothing from the pool will flow to the lake.

Chairman Hites asked Ms. Diener to distribute the ballots so that the members would see what criteria would be used for the vote. Ms. Carlson reminded the members that there were variance worksheets for their convenience on all the tables, as well.

Chairman Hites asked for the dimensions of the proposed pool. Mr. Pletch advised it would have a 16' wide water box, with 3' of concrete on each side. It would be 32' long, with 8' concrete stairs. A decision had not yet been made whether a slide would be added at the deep end of the pool.

Chairman Hites asked the applicant to approach the podium so that any questions posed to her would be answered on the record via the microphone. He then advised her that one criterion the members must consider is whether this variance is necessary to preserve or provide enjoyment that the neighbors already enjoy. In other words, do the neighbors already have the right to build that close to the lake?

Ms. Holscher responded that she would have no issue with neighbors building near the lake as long as the lake was not harmed, the view was not obstructed, and no safety hazards were posed for her family. When asked if she thought the new pool might promote activity that would disturb the neighborhood, Ms. Holscher responded that her family, the only people who really ever visit, are very respectful of the neighbors and would ensure that they were not disturbed.

Randy Conwell asked if Ms. Holscher thought this project might affect neighboring property values, to which she responded she had thought of that, but had no way of knowing what might happen in the future. Mr. Holscher added that they have considered safety, with the cover, and are very family-conscious. They have never even had a party at their home. Randy Conwell asked if extra lighting would be added for this project. Mr. Pletch and the Holschers assured the Board that no new lighting was being added, and that they would only use the existing deck lighting when necessary. Should anyone have objections to the deck lighting being on at certain times, they would simply turn it off.

The applicants' neighbor, Wanda Martin, introduced herself and shared that the Holschers are great neighbors. She never even knows when they have people over unless she actually sees them, as they are very quiet and do not have parties. She agreed when Mr. Holscher interjected that they even ask Ms. Martin for permission to have family members park near her property. Ms. Martin stressed that she has no objections to the applicants' plans for a pool.

Dennis Sterrett asked if anyone had come forward to oppose the application, to which Director Rogers responded there had been no objections received either verbally, by letter, or in person.

Chairman Hites commented that the variance worksheet provided to the members did not match the yes/no asterisks on the actual ballots, and Director Rogers clarified that the YES/NO points on the ballots were the correct ones.

There being no further questions from the Board or from the audience, Dennis Sterrett moved that the petition be put to a vote. Randy Conwell seconded that motion. After all ballots were returned to Chairman Hites, he read the following results into the record:

Result - 3 votes cast; 3 grant; 0 deny; petition is granted.

#2880 - Darryl/Patsy Miller Variance: East of the Southwest Corner of Section 21, Township 27 North, Range 3 West, also known as 110 Francis St, Monticello, Indiana.

Violation: None

Request: Applicant is requesting a height of 26' for an accessory structure (pole barn), which will be used to store a large camper, boat, skid loader and attachments. The maximum height allowed for accessory structures in this R-2 zoning district is 19'.

When asked by Chairman Hites if he wished to move forward with his petition in light of there being only 3 members present, petitioner Darryl Miller responded affirmatively.

Director Rogers provided a summary of the variance request, including a reading of the Staff Report. He stated that, should the Board grant the applicant’s request, he recommended that a condition be placed on said approval to increase the buffer zone by 1’ of additional setback for each 1’ of additional height relief granted (i.e. increase side setback from 6’ to 13') to accommodate the taller building size. This is a common practice by ordinance.

Chairman Hites walked the audience through multiple photographs of the applicants' property, the proposed pole barn location, and neighboring properties. Mr. Miller assisted in showing where the property lines were based on the various photographs presented, and added that he and his wife own the 1-acre lot to the east of the subject property, as well. He pointed out the NIPSCO tower and showed why they were tight on room based on its location.

Chairman Hites showed photos of properties he thought might be most affected by this project, those with back yards abutting Francis Street. Mr. Miller advised that Troy Paluchniak owns one of those 3 properties, and that he had voiced no objections at all when Mr. Miller discussed the project with him.

Randy Conwell asked if there would be any NIPSCO setback issues, to which Mr. Miller responded that while NIPSCO's official stance is they do not want anyone building on the right of way, NIPSCO had told him he'd be fine, as his proposed building would lie along the same line as all those right down the line from him.

Director Rogers advised the members that the applicant is allowed to count NIPSCO's easement as part of his setback, so he is actually 105' back from the property line. Our only concern, therefore, would be with his west side setback. At the 9' designated on the applicant’s submitted survey, the structure would be 50% further away than the required 6’ setback for an accessory structure. The staff believes the applicant has room to meet the 13’ setback suggested by our office.

Mr. Miller shared that, per his new survey, he could move up to 11' and still be off of the NIPSCO right of way. He went on to say that John Eubanks, his neighbor to the west, has no problem at all with his proposed building, and that several neighbors were in attendance at this meeting to show their support for him as well. He has talked to all of adjoining owners listed on the notice letter he received, and has received no objections or complaints from any of them. Director Rogers added that the Area Plan office has received no objections, either. He went on to remind the members and state for the record that the Staff Report he read at the beginning of the hearing would be used in documenting the Board's Findings of Fact.

Chairman Hites asked what size the property to the west of the proposed site was, to which Mr. Miller responded 7 acres. Director Rogers noted that property directly to the west is zoned R-2, like the subject property, while the property next to that one, by the drive-in, is B-2.

Mr. Miller began discussing a picture he was holding in his hand of the building itself that is being proposed, showing they are softening it from the road view with a porch. Director Rogers advised that said document, which was not part of the record prior to the commencement of the session, would now need to be kept by the Board, but that Mr. Miller could get a copy of the document from the Area Plan office.

There was further discussion regarding what height is actually required to store the types of items Mr. Miller plans to keep in the pole barn. Acknowledging the current height request, Chairman Hites shared his concern that widening the setback requirement would move the pole barn closer to the properties he is most concerned about. Director Rogers noted that this was still over 100' away from those neighbors, to which Chairman Hites responded they would still have a clear view of the building.

There was additional discussion regarding ownership of the properties near the golf course and whether or not everyone abutting the subject property had received notice of this petition (Ms. Carlson assured all that they had). Mr. Miller shared his plans to plant evergreens on his 1-acre lot to help beautify the property.

Director Rogers reiterated his recommendation that, should the Board approve the variance request, they do so with the condition that the 9' setback buffer proposed on the drawing be increased by 4', and asked if either the applicant or the Board had any issues with that recommendation. Mr. Miller stated he found that acceptable, as long as there was enough room for the structure. Chairman Hites asked Director Rogers for clarification as to what would happen if the Board agreed to grant the variance but did not agree on the 13' setback condition set forth above. Ms. Diener stated that only a majority vote was required on the setback condition, vs. the quorum required for the variance itself. Dennis Sterrett moved that a vote be taken on the setback condition only before proceeding with a vote on the overall petition. Randy Conwell seconded. Pursuant to a hand vote, 2 members voted to include the above-referenced setback increase as a condition of variance approval. One member voted against including it. As a majority voted pro, the increased west side setback (from 6' to 13') carried, and will be an official condition of the petition should it be granted.

When there were no further questions from the audience, the applicant, or the Board, Ms. Diener passed the ballots.

After all ballots were returned to Chairman Hites, he read the following results into the record:

Result - 3 votes cast; 3 grant; 0 deny; petition is granted with conditions as noted.


Closing Business


Lewellen Appeal Information: Director Rogers reminded the Board that the Lewellen appeal, continued from previous sessions, is scheduled to be heard at the April meeting. Director Rogers provided a summary of the case's history.

The final result was approval by the ABZA of a remediation recommendation for the site which was established without presence of Mr. Lewellen and his attorney, Mr. Altman. The ABZA gave Mr. Lewellen and Mr. Altman 60 days to appeal the remediation determination. Mr. Lewellen and his attorney chose to file suit rather than come back before the Board. Ms. Diener interjected that, at the time of the appeal finding, Mr. Lewellen still had time to make such an appeal to the ABZA.

Mr. Rogers advised he received notification from Mr. Altman, Mr. Lewellen's attorney, stating that he interpreted the court's mandate as allowing him to appeal all matters related to this ongoing situation. Mr. Rogers feels it is Mr. Altman's intention to appeal all of the citations and resulting fines, but, in Mr. Rogers' opinion, he has exhausted his timeframe to do so.

Ms. Diener has since responded to Mr. Lewellen's letter, informing him that the only remaining discussion would be about remediation. Her opinion is that, should Mr. Lewellen bring anything other than remediation up at the next hearing, the Chairman would be best served to state we are not discussing the matter outside of the remediation issue, per court order.

Mr. Rogers shared that, in the meantime, the applicant has taken steps to remediate the site to the satisfaction of the staff.


There being no further business, Randy Conwell moved that the meeting be adjourned; Dennis Sterrett seconded. Chairman Hites adjourned the meeting at 7:25 pm.

Respectfully submitted,


Erin Carlson, Secretary

Area Board of Zoning Appeals


Joseph W. Rogers, Executive Director

White County Area Plan Commission

Document Prepared By: White County Area Plan Secretary, Erin Carlson “I AFFIRM, UNDER THE PENALTIES FOR PERJURY, THAT I HAVE TAKEN REASONABLE CARE TO REDACT EACH SOCIAL SECURITY NUMBER IN THIS DOCUMENT, UNLESS REQUIRED BY LAW.” _________________________________________________





March 21, 2013 - 6:00 p.m.

2nd Floor Conference Room

White County Building

Monticello, IN 47960



6:00 P.M.: The White County Area Board of Zoning Appeals will meet in Regular Session pursuant to Indiana’s Open Meetings Law, I.C. 5-3-1-2 (b) with the following agenda:

READING OF THE MINUTES – February 21, 2013


1. Appeal – Lewellen, continued to 4/18/13


1. #2878 - Holscher Variance

2. #2880 - Miller Variance