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The White County Area Board of Zoning Appeals met Thursday August 21, 2014, at 6:00 p.m. in the Commissioners’ Meeting Room, Second Floor, County Building, Monticello, Indiana.

Members attending were: Carl Hites, Dennis Sterrett, Randy Conwell, David Rosenbarger and Richard Holmes.

Absent: Attorney Abigail Diener

Also attending were Executive Director Joe Rogers, and Board Secretary Jennifer Hill.

Visitors attending were: Gary & Janis Johns, Jeff Ban and Randy Mitchell.

The meeting was called to order by Chairman Holmes at 5:58 p.m.



Minutes: There was a motion by Carl Hites and a second by Randy Conwell to approve the meeting minutes and findings of fact of July 17, 2014 as written. The minutes and findings of fact were unanimously approved.

Variances & Special Exceptions

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

Variance Petition # 2900 & 2901

Chairman Holmes clarified with Jeff Ban, Project Engineer of DVG, if he wanted both 2900 & 2901 heard simultaneously and if he wanted both Variances to be heard on Combo Ballots or separately. Mr. Ban request that they be heard simultaneously and on Combo ballots.

Executive Director Rogers indicated the office had received two phone calls, two contacts related to these requests. One was seeking information on the request and expressed no opinion one way or the other; the second expressed concern about the applicant being able to reduce the parking space count and the ability to put up a fence up if the Variance is granted. The office has had a request to create a new parcel; this qualifies under the administrative subdivision procedure and it does not go in front of a board for approval. Director Rogers advised the board that the office doesn’t grant an approval if there is a non-conformance created by the subdivide proposal, and the non-conformance created here would be the zero setback of the common wall area. The second issue is, if approved, there will be a new parcel and the concern was expressed when there is a new parcel your are allowed to put a fence on the property line of the new parcel so would there come a time when Rural King would decided to put a fence up on their property border, thus disrupting the parking and traffic flow of that particular site. This concern can either be ignored or there can be a condition attached to your consideration that you would prohibit a fence being placed on the property that would interfere with the parking or traffic flow. In addition to this issue, often, when required to review previous variances, one of the difficulties that the office deals with is understanding what the intent of the Board was in many cases. Is this Variance going to be granted as a permanent adjustment so that if a catastrophic event occurs such as fire, tornado, or a major renovation of the building, the Applicant, the property owners at that time, will be allowed to reconstruct to the 0 (zero) setback that is being considered tonight. Executive Director Rogers read into the record the Findings of Fact Clarification for the Boards consideration. The staff is requesting that a determination be made on the fence issue and on this Clarification prior to taking the final vote on the Variance. Executive Director then introduced the staff report and associated documents into the record then provided a review of the application petition and factors pertaining to the request and photos of the site to provide the board and audience with visual depictions of the site. The Applicant is requesting a 0’ side yard setback as well as to keep parking lot as it exists today. Executive Director Rogers also added that the legal matter that was presented to the county, and pending as of the last hearing, has been settled, the litigation finalized and the claim dropped, so that action no longer stands in the way of this hearing. Executive Director Rogers stated there were a couple of concerns with encroachment of a fenced area behind the building that will need addressed. Denny Sterrett request if both the Bank and Pizza Hut were separate parcels from this, to which Executive Director affirmed that they were separate.

Jeff Ban, Project Engineer with DVG.

Mr. Ban explained the creation of the lot line is just an administrative thing, there isn’t going to be any change of use or parking configuration; the granting of this variance will just allow administrative creation of a parcel, which will include the Rural King facilities, for change of ownership. Mr. Ban stated that in the applicants would not resist a no fence condition attached to the approval. Mr. Ban also explained that in reference to the fenced area and air conditioning unit along the proposed property line, the fenced in area was utilized for fork lift propane tanks and is no longer in use, there is nothing in there except for some racking. That fencing would remain on the R2C property and it’s really just an unused fenced in area. The mechanical piece of equipment that is on the ground was an old rooftop unit from K-mart. Since the issue was raised a month ago, R2C Monticello was put on notice that they need to get that out of there and get the unit into a dumpster and hauled away. Executive Director Rogers asked Mr. Ban if inside the fenced area are only removable racking and no permanent structures, to which he replied yes. Chairman Holmes asked Mr. Ban to confirm that the fencing was not attached to the building; Mr. Ban replied that it was not attached. With regards to the parking variance, Mr. Ban stated that they weren’t asking to do anything just to document that it’s non-conforming and that it would be grandfathered through the split process. Mr. Sterrett asked if there was any parking agreement between the businesses. Mr. Ban advised that there was a reciprocal easement agreement in place, which allows all the tenants to share parking; and there is a document between R2C and Rural King as part of that. After further discussion on the parking lot issue, Executive Director Rogers read what was shown. What was provided by Chairman Holmes read: “No fence of any kind can be constructed in such a way to block the flow of traffic”. Dave Rosenbarger moved that be put as a condition, with a 2nd from Carl Hites. Executive Director Rogers requested it be clarified that it was proposed that any fencing cannot interfere with traffic or parking flow.

By hand vote: 5 votes cast, 5 approved to except: “No fence of any kind can be constructed in such a way to interfere with parking or block the flow of traffic”.

Dave Rosenbarger made a motion to except the Findings of Fact Clarification, with a 2nd from Dennis Sterrett.

By hand vote: 5 votes cast 5 approved to except the Findings of Fact Clarification.

When there were no further questions from the audience, the applicant, or the Board, Executive Director Rogers issued ballots for voting.

After tabulating the ballots, Chairman Holmes read the following results into the record:

Result for # 2900- 5 votes cast; 5 to grant; 0 to deny; petitions # 2900 was granted.

Result for # 2901- 5 votes cast; 5 to grant; 0 to deny; petitions # 2901 was granted.

Variance #2902 Gary & Janis Johns

Executive Director Rogers reviewed photos of the site to provide the board and audience with visual depictions of the site. Executive Director introduced the staff report and associated documents into the record then provided a review of the application petition and factors pertaining to request. Executive Director Rogers indicated the office had not received any communication related to the request. Chairman Holmes asked for clarification on which one of the barriers shown in the photos applied to the request.

Mr. Gary Johns stepped to the microphone. He stated that there was confusion over where they’re digging. He has removed that 2nd line to lessen the confusion, and the blue tarps are where they had started the footers but were stopped due to the setback issue. Mr. Johns explained that they’ve been renting a shed and that property where the shed is located has been sold requiring them to move their storage out of that building. This has created the need for a much needed extension to their barn. Chairman Holmes requested clarification of where the Surveyor measured from. Mr. Johns stated that he was out there and it’s 40’ from where that blue canvas or where the holes are, to the right of way line which is 40’ and then there is another 10’ to the edge of the road. So were 50’ from the edge of the road where we stop. Carl Hites wanted to clarify that the North end of the barn is finished and walled off and is a heated area, and the South end is actually tool shed, so if there was a requirement that the building actually would have to go on the North end of the barn, then the shop would be divided in two. Mr. Johns concurred and further clarified that there were two electric lines underground as well as a water line on the North end; it would just be too inconvenient, and unpractical.

When there were no further questions from the audience, the applicant, or the Board, Executive Director Rogers issued ballots for voting.

After tabulating the ballots Chairman Holmes read the following results into the record:

Variance Petition #2902- 5 votes cast; 5 to grant; 0 to deny; petition is granted.

Variance Petition #2903 Hubbard Auto Center

Executive Director Rogers advised that Mr. Hubbard has requested a continuance and read into the record a letter dated August 19, 2014 requesting a continuance until the September 18, 2014 meeting. Executive Director Rogers reiterated to the Board members that Applicants can request up to 2 continuances. This would be the first continuance request, so he will not be heard until the September meeting.

Special Exception Termination # 2857

Executive Director Rogers explained the office has a responsibility if a Variance or a Special Exception Use is identified as having lost its validity, to bring the pertinent circumstances surrounding that determination to the board’s attention and request that the variance or special exception be terminated. The Ordinance provides the criteria that must be met in order to terminate a Variance. There were six inquiries from the community concerning this action, 5 were simply questions of what the notice/posting meant. The office told the citizenry there would be a consideration of termination of the Special Exception Use of the Tattoo Parlor that had operated at the designation location. The other was just a verbal communication; there was no communication with our office for or against the termination. The Board was presented 3 documents: pictures showing that the location is/has been vacant, Exhibit A which is the current Zoning Ordinance Special Exception Use Criteria which would be applied if this Special Exception were being asked for today, the third was a map showing distance requirements to schools, residential districts, etc. All of these documents are being entered into the record to establish a Findings of Fact. Director Rogers read into the record an account of the criteria which, by Ordinance, must result in a termination. He then read into the record the termination justification report. Carl Hites made a motion to terminate the special exception, with a 2nd from Dave Rosenbarger.

Result: 5 votes cast; 5 votes to approve the termination; 0 to deny termination of SE # 2857. Termination is granted.

Miscellaneous Business

Pertaining to the Schaefer Hearing, Director Rogers referenced an email which was sent from Attorney Abigail Diener to the Board Members which included the Findings of Facts which normally is office generated; however, since this regarded a decision of the Executive Director, they come to you as developed by the two attorneys responsible for handling the appeal. Abigail Diener is requesting your signatures approving the Findings of Fact as prepared. The 2nd document that you were provided was the Certification of Record this is required to be supplied to the court as part of the appeal hearing. This document basically lists the exhibits that were submitted that night and any other related documents that pertain to the Findings of Fact. Since Dave Rosenbarger wasn’t present he will need to note abstention from both approvals. There needs to be a vote of approval, disapproval or modification for the Findings of Fact and Decision and the Certification of Record. Chairman Holmes advised the first vote would be for the Certification of Record. Carl Hites moved to take a vote, with a 2nd from Randy Conwell.

-Vote to accept the Certification of Record

Results 5 votes cast; 4 to grant; 0 to deny; 1 abstention

Carl Hites moved that the Findings of Fact be accepted as presented, with a 2nd from Denis Sterrett.

-Vote to accept the Findings of Fact and Decision

Results 5 votes cast; 4 to grant; 0 to deny; 1 abstention

There being no further business, Dave Rosenbarger made a motion the meeting be adjourned with a second from Randy Conwell. Approved unanimously.

Respectfully submitted,


Jennifer Hill, Secretary

Area Board of Zoning Appeals


Joseph W. Rogers, Executive Director

White County Area Plan Commission

Document Prepared By: White County Area Plan Secretary Jennifer Hill “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.” _________________________________________________