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BZA MEETING SEPTEMBER 18, 2014

The White County Area Board of Zoning Appeals met Thursday September 18, 2014, at 6:00 p.m. in the Commissioners’ Meeting Room, Second Floor, County Building, Monticello, Indiana.

Members attending were: Dennis Sterrett, Randy Conwell and Richard Holmes.

Absent: Carl Hites, Dave Rosenbarger

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

Visitors attending were: Marty & Sharon McKay, Scott Carr, Debbie Morrow, Robert Morrow, Matt Hubbard, Jason Getz, Will Getz, Eldon Getz

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

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Business

Minutes: There was a motion by Randy Conwell and a second by Dennis Sterrett to approve the meeting minutes and findings of fact of August 21, 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 # 2903Hubbard GM Center

Executive Director Rogers read the Staff Report into Record as well as an Inspection Report dated July 15, 2014 in reference to Building Permit #19918, he also submitted into the record a letter dated July 17, 2013 to the construction co Tim O’Bryan, that letter includes a summary of deficiencies of the construction site plan. Another letter dated April 8, 2014 to same Tim O’Bryan, this a follow up to the 7/17/13 letter., It was at that time a Certificate of Occupancy was requested and he was advised no Certificate of Occupancy would be issued until the site passed building and planning inspections. A provisional Certificate of Occupancy was offered if they complied with stipulations. A letter dated July 10, that was sent to both Mr. Richard Hubbard and Tim O’Bryan, included a warning ticket in reference to non-compliance of the site. July 20, 2014 at 4 pm was the compliance date, $50 per day fine after that. Also, Executive Director Rogers entered into the record the attachments of the letters; this includes appeal rights, and procedures, as well as any photos. Executive Director Rogers prefaced with the 4 requests that were being considered. First, a request for reduction of parking spaces from 118 to 40. Second, relief from wheel stop requirement in areas designated as parking for “display vehicles”. Third, request that the 20’ striping requirement be reduced to 18’. Fourth, request to be relieved of the pavement and construction standards to allow employee/vendor parking in the gravel area. Furthermore, the applicant requested that each of these requests be heard separately.

Executive Director Rogers explained that the way the office works when a commercial application is received. The office checks for compliance to the zoning ordinance which primarily involves the parking chapter, landscape chapter, and ADA compliance. If any deficiencies are found, the contractor or the applicant, whoever made the submission, is provided a written report of the plan submission and asked that any deficiencies be corrected. On April 4th the contractor came to the Area Plan Office and made a couple of handwritten notes of modifications to the site plan which were approved by the Area Plan office. Director Rogers explained that a site plan, or any other document submitted as part of an application, carries a contractual obligation, in other words, if that site plan is submitted that is what they have to build to. It’s not flexible or optional; the plan is what we approved and, as such, are indicating that the plan complies with the zoning ordinance. If there are any changes after, then that site plan needs to be resubmitted to our office; and those would be evaluated for compliance and then be approved or not approved accordingly. After the project is complete, a call for Final Inspection is made. We generally select a variety of attributes that we want to make sure that are compliant, especially if there are any areas of concern. For example, a step-up; we might have concern for a step-up from an access aisle to an access route. We might have concerns about signage location or signage heights. There is a checklist provided which is also placed into the file. If the Building Inspector goes out and does the inspection for the parking compliance then he comes back and reports to my office. If I go out and do the inspection then I complete the report. Pictures were then shown of the property and its buildings and then a discussion of the pictures commenced. Executive Director Rogers reiterated that they’ve submitted a site plan, they decided after the fact that they weren’t going to comply with the site plan; however, never communicated that to our office. If that site plan had come to us and said that we had 40 parking spaces for our employees back in the gravel area, they’ve always been in the gravel area, that area has not changed and that would’ve been put on the site plan we would have accepted that. The way that the ordinance is structured is that if you have parking spaces and they’re not compliant with the current ordinance they’re grandfathered to the extent that the parking area is not modified. As long as you have parking that is prior to this ordinance and was compliant at the time, that’s grandfathered.

Executive Rogers was followed by testimony from Mr. Matt Hubbard, the applicant’s representative. Mr. Hubbard explained that with the display parking it didn’t allow for lines. The 118 spaces came from the architect putting those spaces throughout the lot. In the rendering, the lines were straight and parallel to the street which wouldn’t allow for display parking. The request was to get those spaces from 118 down to 40. Mr. Hubbard reiterated that he’s here for a variance on something that would have been approved if it had been submitted that way to begin with. If the numbers of spaces are lowered, then that brings down the number of ADA spaces that are needed. Mr. Hubbard explained that they’ve added automatic doors so that when you pull up the door, it automatically opens; there is a sign on the door that shows the ADA space in there. Although, it appears that it may be a bit lower than 66 inches. Attorney Abigail Diener asked if there was a sign when the door was open. Mr. Hubbard stated no. Executive Director Rogers further explained that spot wouldn’t be ADA compliant because it doesn’t have the access aisles and such and ADA spaces cannot be accessible to non-ADA parking. Mr. Hubbard offered a picture of a handicap vehicle in an ADA parking spot to show that it is in fact handicap accessible. Executive Director Rogers stated that he’s driven by the establishment and the handicap accessible spaces had been consumed with display vehicles, and that wouldn’t be permissible under ADA regulations. Mr. Hubbard stated that he wasn’t aware of any thing in front of that spot, and stated that sometimes it’s hard to prevent someone from pulling into the spot. Next, was the exception of the wheel stops. Mr. Hubbard explained that wheel stops wouldn’t allow them to utilize their display area, due to the cars being unable to pull across the wheel stop. Mr. Hubbard advised that his display area is actually the concrete area, not the blacktop area. Executive Director Rogers stated that it depends on what is designated as the circulation route for ADA purposes. If there is an access route to an access door you have to prevent parking from going into that 36 inch protected area. The next thing is the stripes, the issue again is if you put 20 foot stripes on, if there is a vehicle in the spot it won’t allow through traffic. I’m asking for a variance on the length of the stripes. Executive Director Rogers explained when a site plan is submitted, we have a requirement for different parking styles, per the site plan they had the ability to stripe those at 20’ and still meet the minimum 24’ aisle requirement. There isn’t anything that prevents them from having the striping and the 20’ space requirement isn’t applicable to areas dedicated for display cars, if the parking requirement was reduced we would be looking for those 40 spaces to be striped correctly.

Executive Director Rogers also explained that for there to be an official vote there has to be 3 votes either way. If 2 grant and 1 deny or 1 grants and 2 deny, it will be continued until the October 16 meeting.

When there were no further questions from the audience, the applicant, or the Board, Attorney Abigail Diener issued ballots for voting.

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

Variance Petition # 2903 Results

Parking reduction from 118 to 40

Results 3 votes cast; 2 to grant; 1 to deny; Petition is continued until 10/16 meeting.

Wheel Stops

Results 3 votes cast; 2 to grant; 1 to deny; Petition is continued until 10/16 meeting.

Parking in Gravel Area

Results 3 votes cast; 2 to grant; 1 to deny; Petition is continued until 10/16 meeting.

Striping

Results 3 votes cast; 1 to grant; 2 to deny; Petition is continued until 10/16 meeting.

Variance #2904-Sharon & Martin McKay

Executive Director Rogers read the Staff Report into the record and provided photo documentation of the properties in the petition. Sharon McKay explained the need for the special exception use. Executive Director Rogers explained that one of the documents that Mrs. McKay had prepared is a request for a waiver from the handicap parking. He further explained that ADA is federal law and that he didn’t believe that this board had any authority to waiver federal law. Executive Director Rogers requested the Board attach as a condition of their consideration the requirement of an inspection by our office before a special exception permit is actually granted. To deal with this, the Board would have to pass this with a waiver of the parking requirement. Executive Director Rogers reiterated that he was looking for a vote to add as a condition the addition of an inspection requirement, and a vote whether or not to waive the parking. Randy Conwell made a motion for the inspection with a second from Dennis Sterrett, approval unanimous Dennis Sterrett then made a motion for the waiver of the parking requirements, with a second from Randy Conwell, approval unanimous. Attorney Abigail Diener stated that those terms were attached the ballot being considered.

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

Variance Petition #2904- 3 votes cast; 2 to grant; 1 to deny; Petition #2904 is continued until 10/16 meeting.

Variance Petition #2905 Steve Carr

Executive Director Rogers read the Staff Report into record and provided photo documentation of the property pertaining to the petition. Mr. Carr stepped to the podium and explained that he was requesting a 3’ North side setback. Mr. Carr stated that he wants to keep the same aesthetics as currently exists in the area. He further stated that he shares the driveway and parking with the neighbor. Mr. Carr also stated that he wouldn’t be able to get the garage on his lot as it is now because he would lose what parking he has.

When there were no further questions from the audience, the applicant, or the Board, Attorney Abigail Diener issued ballots for voting.

Results: 3 votes cast; 3 to grant; 0 to deny; variance petition #2905 is granted

Mr. Carr was advised to come to the Building & Planning department to obtain his permit.

Variance Petition #2906 Getz Farms

Executive Director Rogers explained that on February 21, 2013 this board adopted a series of by-laws, within the by-laws that were adopted there is a requirement that the applicant shall cause to be erected properly; in a clear manner; a sign abutting the primary street at least 10 days prior to the date set for such hearing. In cases where the property has no side abutting street the staff shall determine where the sign shall be placed. The public hearing notices also have a 10 day notification requirement. The variance request application spells out that the sign must be posted a minimum of 10 full days prior to the scheduled hearing date. In this case, I went out on September 8th in the afternoon. By our calculations the sign should’ve been posted by 12:01 the morning of September 8th. I went out the afternoon of September 8th and the variance sign was not posted on the site. It’s the opinion of the staff that you cannot hear this variance; it must be continued until the sign is properly posted for the required notification period. That’s our position, our office is chartered with enforcing your rules and by-laws and we feel like we’re doing that and in this case we feel that the hearing should be continued until October. Mr. Getz stepped to the podium and explained that he has 10 days in his head when he picked up the sign and he put it out Monday the 8th thinking that was 10 days; the sign was posted in the evening on the 8th. Dennis Sterrett made a motion that this petition be tabled until the October 16, 2014 meeting, with a second from Randy Conwell. Motion carried unanimously.

Results: Meeting continued until October 16, 2014 meeting.

Variance Petition # 2907- Robert & Debra Morrow

Executive Director Rogers advised that in this case the sign wasn’t posted a full 10 days prior to the hearing date. A letter was sent to the Applicant. The application includes the language of the requirement as is instructed in the ABZA by-laws. It’s the opinion of the office that you shouldn’t hear this petition and it should be continued until October. Mr. Morrow stepped to the podium and stated that I posted it 10 days prior, he stated that by the way the office calculates the posting requirement, it’s actually 11 days prior, and I think there is confusion. It was posted at 6pm Monday; I thought that was 10 days. There was some further discussion as to the language on the application in reference to the full 10 days of posting. Randy Conwell made a motion to continue the petition # 2907 until the October 16, 2014 meeting, with a second from Dennis Sterrett. Motion carried unanimously.

Results: Meeting continued until October 16, 2014 meeting.

Other Business:

Executive Director Rogers discussed the summary of Variances report that was included with the Board’s packets. This shows what variances have been granted and what has been denied since he’s started. If there is a developmental standard that is continually being heard and continually being granted, then this Board should be requesting the APC review the applicable section of the ordinance. Executive Director Rogers stated that this information was being presented for the Board’s consideration and that no action was expected by Mr. Rogers as this time.

There being no further business, Dennis Sterrett made a motion the meeting be adjourned with a second from Randy Conwell. Motion approved unanimously.

Respectfully submitted,

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Jennifer Hill, Secretary

Area Board of Zoning Appeals

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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.” _________________________________________________