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January 21, 2016



The White County Area Board of Zoning Appeals met Thursday January 21, 2016, at 6:00 p.m. in the Commissioners’ Meeting Room, Second Floor, County Building, Monticello, Indiana.

Present: Randy Conwell, Carl Hites, Richard Holmes, Dennis Sterrett, Dave Rosenbarger

Absent: Attorney Abigail Diener

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

Visitors attending were: Michal Gregory, Kathleen Miller, Donald Miller, Warner & Alice Mugford, Tina Bernacchi, Doug Wagner, John & Shari Rees, Brooke Johnson, Jerome Pawlak, Carol Pawlak

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






Reorganization: The first order of business was reorganization. Richard Holmes opened the floor for nominations of Chairman. Dennis Sterrett nominated Carl Hites, with a second from Dave Rosenbarger. Mr. Hites was elected with a 5-0 vote. Dennis Sterrett nominated Dave Rosenbarger for Vice Chairman, with a second from Randy Conwell. The motion was passed and Mr. Rosenbarger was elected with a 5-0 vote. Jennifer Hill was nominated by Richard Holmes as Board Secretary, with a second from Dave Rosenbarger. Mrs. Hill was elected with a 5-0 vote.

Minutes: There was a motion by Randy Conwell and a second by Richard Holmes to approve the meeting minutes and findings of fact of October 15, 2015 as written. The minutes and findings of fact were unanimously approved.

Note: At the introduction of each case hearing, Director Rogers introduced the Staff Report and affiliated documents into the official record of the meeting, to be used as supporting documents for developing the Findings of Fact for each hearing.

Variances & Special Exceptions

Variance Petition # 2931- Michal & Marla Gregory

Executive Director Rogers stepped to the podium and read the Staff Report and provided photo documentation of the petition site. Director Rogers explained that the applicants were requesting a side setback of 1.9’ along the east property line and a front setback of 49.9 feet to allow construction of a detached garage. There was short discussion about the orientation of the manufactured home which was allowed in 2002 by the Building and Planning Department, having been allowed to be placed contrary to the survey from the variance which allowed the home in the first place. Ultimately, this change in orientation reduced the amount of space available for a detached garage going to the east of the home. Director Rogers also explained that there had been no community communications in-favor or against this petition. Mr. Michal Gregory, the applicant, then stepped to the podium and spoke on behalf of his request and answered questions from the Board. Mr. Gregory also provided the Board with a signed petition, including the immediate neighbor to the East, supporting their request. Mr. Jerome Pawlak stepped to the podium and explained that he’s 5 lots to the east of the Gregory’s and that he has no issues with the proposed development. Mrs. Carol Pawlak then stepped to the podium and stated that she lives at 5451 E Quietwater Ct and has no issues with the proposed development.

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

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

Variance Petition # 2931 - 5 votes cast; 3 to grant; 2 to deny; Petition # 2931 is APPROVED.

Variance Petition # 2932- Warner & Alice Mugford

Executive Director Rogers stepped to the podium and read the Staff Report and provided photo documentation of the petition site. Director Rogers explained that this request was for a reduction in minimum living space; from the 1200 sq. ft. required by ordinance to 960 sq. ft.. There was one Community Communication with a Charles Schaffer. Mr Shaffer came into the office for information on the request. He offered his support in regards to this request. Director Rogers explained that when the Mugford’s applied the last time for the setback variance, no one in the office picked up that the structure was below the minimum building size. Tina Bernacchi stepped to the podium and spoke on behalf of the Mugford’s and answered the Boards questions.

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

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

Variance Petition # 2932 - 5 votes cast; 5 to grant; 0 to deny; Petition # 2932 is APPROVED.

Appeal # 13 – Brooke Johnson

Executive Director Rogers: The last item of business as far as hearings is Appeal #13. Appeal # 13 comes from Brooke Johnson. She’s appealing a warning citation that was issued on October 19, 2015 this is page 39 of your, of the applicants submission documents or you can find a copy of the citation there. If you look at the violation summary, this office has established that you have located two principal structures on the property with Tax ID # 021-27570-00, more commonly known as 504 Shafer Drive, Monticello, Indiana 47960. This is a violation of the White County Indiana Zoning Control Ordinance, Chapter 3, and Section 3.0.2. When it comes to appeals the Ordinance provides the structure for dealing with an appeal, you’ll find that in Exhibit A and Exhibit B that I’ve prepared and I’ll give you a brief summary. The issue in front of the Board is whether or not the Executive Director made a reasonable interpretation of the White County Indiana Zoning Control Ordinance which is reflected in the Warning Ticket issued on October 19, 2015 and which indicated a violation of Chapter 3, Section 3.0.2 which prohibits locating two principal buildings on a single parcel. Appeals are regulated by Ordinance sections 12.6 which is Exhibit B and 13.1.5 which is Exhibit A. Exhibit B provides the purpose of the appeal procedure and provides the following guidance “The Appeal Procedure is not intended as a means to subvert the clear purposes, meanings or intent of the White County Zoning Ordinance or the rightful authority of the Executive Director to enforce the requirements of the White County Zoning Ordinance. To these ends, the reviewing body shall give all property deference to the spirit and intent embodied in the language of the White County Zoning Ordinance and to the reasonable interpretations of that language by those charged with the administration of the White County Zoning Ordinance. So your job tonight is to determine whether or not I have complied with the intent and made a reasonable interpretation of Section 3.0.2. The appeal procedure is different from a citizen complaint procedure in that the appeal procedure is a judicial jurisdictional matter which falls to the Area Board of Zoning Appeals and a complaint procedure is an administrative matter which falls to the Area Plan Commission. We are here tonight to review the judicial basis of the enforcement action taken by the Executive Director as it relates to Ms. Johnson’s use activities and to determine whether my interpretation of those use activities is reasonable. The appeal process also requires a burden of proof on the applicant as described in Chapter 12, Subsection 12.6-4 C, which requires a letter describing the reasons for appeal noting specific situations of the White County Ordinance or other requirements upon which the appeal is based. That’s the summary of why we’re here tonight and what the intent of the appeal process is. On the ballot that you have tonight you’ll be asked to either Affirm, Reverse, or modify my decision and there will be a series of questions and you will be asked to make a determination as to whether or not my determination was reasonable. I’ll leave it to Brooke Johnson to make her Appeal case.

Brooke Johnson: Hello, I’m Brooke Johnson and I’m running daycare out of the address of 504 Shafer Drive and 504 B Shafer Drive. I opened my first day care when we purchased the home 3, 3 ½ years ago and as I continue to grow I came to the Building Trades Office to talk them to request a permit to convert the garage for purposes of daycare. My carpenter came in and met with the Building Trades person who then, at that time I guess the two offices weren’t one, I’m a laymen so I assume I’m going to all the appropriate people. I get approved to be able to do this. This person actually spoke with my state licensing representative to make sure that I was doing what I needed to be doing to meet state licensing code because for state licensing an accessory structure not a second primary structure can be licensed as a home daycare in the state of Indiana. So after this structure had to meet the building code for an accessory structure, so I had to make it be an efficiency apartment, it is one room, it has a kitchen, it has a bathroom. I had to meet the measurements of a bathroom; the toilet has to be so far away from the shower. I’m never going to use a shower in a daycare, but I had to put one there because it had to be an accessory structure. With that being said after it was all done the building trades guy had to come out and he had to approve for my state lady to come out to approve it for its intended use. I went through all my proper channels and I did everything to the best of my knowledge which I was supposed to do. It was actually the secretary of Joe at the time, whom I don’t know who that was; who was communicating with the secretary of the building trades guy who told me that the way I needed to do that was by calling it 504 B Shafer Drive and that’s the way that happened when you had an accessory structure on a parcel so that’s what I did. So, in going through all of that the one thing that Joe has continued to say is that he can’t enforce anything that’s anything more stringent that the state places. So, I put in there for you guys a copy of the state interpretive guide. The state interpretive guide does allow licenses per parcel. It also allows two licenses per structure as long as you have an efficient fire wall. So every…I did first go before the Board of Zoning Appeals because I was told that was the process I needed to take. So I did go before that board first and they granted for me to come talk to you guys without payment. They said obviously I’ve been given some sort of runaround. I have been given permission to create this building. I did put all of my money from my first year of business into it so that I was offering more service. So, one thing the state does say is that you can have two licenses on one structure with Joe saying he can’t be more stringent than the state I question that. I also just for my own sake want to interject that I feel like if White County made people with businesses request a permit that there wouldn’t be these types of things happen, um, I know that Joe stands on the leg that he was unaware of how I was going to use this property, um I did, you guys have provided where he approved the parking for this property with his signature I don’t know why he would approve parking if it weren’t intended for business but it’s there. Um, so I did really go through all the proper channels, um, I’ve done a lot of research; another thing that was suggested to me someone suggested me to the Purdue University did a model of what an Area Plan should look like. You know what zoning ordinances could or should be. This is a base model of how we should go about this and one of the things in an area like where my daycare is that there may be a neighborhood type ordinance where when you’re by the schools you’re allowed different things. Um, and the last thing that I saw in that Purdue ordinance was pretty much saying that once someone has allowed that use it’s really a burden to go back and take that use away from them. It’s called Avoidance of Undue Hardship, um; I do have all the documentation proving that I requested all of those things. I also since then have purchased a new property which is what caused all this to come about, because when I bought the new property in the neighborhood there were neighbors concerned and calling Joe and it’s his job to get to the bottom of what the issues were. I purchased this property with intent to convert that garage as well, um, I currently service 50-60 children, um, I have a large number of school children which means that before and after school are my busiest times. This garage was going to be converted for just those children. Since then, we’ve had these issues and I’m looking at trying to build on my own property which is Carroll County, to be able to accommodate that. In the meantime there are still school delays where I have 14-16 school children every morning that I’m trying to put in these houses with babies who now the babies are being woke up because I have school kids there extra. I have all of these things that are happening and to close the Clubhouse, which is the 504 B location, would take away 8 children is what I have at that location. Um, it is licensed and was actually just accreditation visit to become the first ever accredited day care home in White County. It holds the highest credentials of any home daycare. So for me, I’m looking at all of this saying why are we trying to take away a good thing? Um, the issues at hand were the parking which was handled immediately. We don’t even park on that street anymore. We park at the church, Zion Bethel is right across they have given us permission in writing to park there. I also have permission from the city to park at Voight Park for the other locations. So we really have done everything that we can to accommodate any issues that anyone has had. We also had a police officer come and sit to see if the use of the daycare was causing unnecessary congestion and the police officer said no. He said you’ve not had more than one car at your daycare and he sat there from 6:30 in the morning until 8 o clock when the kids went to school. So I guess my reason for my appeal is Joe’s reasons for doing this are that you can’t allow more than two primary structures on property and I continue to ask him to define primary structure. I continue to get no answer, so then now we have you can’t have two licenses on one structure. Well, the county can’t regulate what the state can do to licenses me, because that’s the licensing jurisdiction not the county jurisdiction. So I’m messed up in this whirlwind of who do I answer to, I’ve really gone thru all my proper channels. So, I guess that I ask you guys to look at all of this information and look at the integrity of my business and what I’m trying to do for this community and allow my business to remain open and like I said maybe even…you know my intentions were to convert the other garage it is an allowable use to have an accessory use. The state does allow an accessory building to be licensed as a daycare. So unless we are able have a higher jurisdiction than what the state says which Joe has made it clear that the county is not. I don’t…

Dave Rosenbarger: I’m confused there Joe. I thought we couldn’t be less…

Joe Rogers: No, I think. Well, my position has been this…My position has been and I’ve said this to Board Members and I’ve said this to the general public. Many people that I’ve spoken with wanted to ban daycare centers from being in a residential district.

Brooke Johnson: Day care homes.

Joe Rogers: Day care homes in a residential district. State statute says you cannot prevent a daycare home from being in a residential district solely because it’s business. So the justification of saying we’re not going to allow daycare homes in residences because they’re businesses you can’t do that.

Dave Rosenbarger: Okay.

Joe Rogers: That doesn’t alleviate conditional zoning restrictions which are appropriate for the APC to recommend and implement. I further have said that if there is a state statute that says or grants a preventative restriction to this community you cannot pass the zoning ordinance which overrides that restriction. There is nothing in state statute which says that a person is entitled to have more than one license at a site, which is not the question here.

Brooke Johnson: There is though, when I provided the Interpretive Guide…

Joe Rogers: I’m speaking…The question is not how many licenses are on the site. This is detraction here. The question is whether or not there are two principle structures by the definition of the zoning ordinance.

Dave Rosenbarger: Right.

Joe Rogers: What the state defines as an accessory structure has no relevance to the definition of the zoning ordinance. So these issues uh, my position has been you cannot allow a zoning ordinance which prevents a day care home because it’s business, you cannot prevent a day care home because as far as restricting the number of people per license because state statute says you have to allow those and there is not statute which regulates how many licenses you are entitled to. The state, the reference she makes you may have…well that’s right you may have but that doesn’t mean that this county has to allow it. And by allowing it, by having it in two structures you have created two principle structures.

Brooke Johnson: And when I applied for that permit it was, that was not how that was explained to me. I applied for this permit for an accessory structure. It is an efficiency apartment. Any efficiency apartment can be turned into a daycare as long as it meets state regulations.

Dave Rosenbarger: Is this something that could have been alleviated…could she have gone another, could she have come and asked for a variance to that?

Joe Rogers: She could have…

Dave Rosenbarger: I mean that was the way around it, was asking for a variance, and coming in front of the board to ask to have two allowed. But she didn’t…

Joe Rogers: Correct.

Brooke Johnson: I was advised by Joe not to go that route…

Joe Rogers: No you were not…No, I gave you all your options

Brooke Johnson: You did.

Joe Rogers: Including filing suit…

Brooke Johnson: You did.

Joe Rogers: Which you made sure that everyone knew you thought was a stupid idea.

Brooke Johnson: Well, it is…

Joe Rogers: It was she that chose to go the appeal route.

Brooke Johnson: I did, because you gave me my options in order and you told me which you thought was the smartest things to do. So I listened to what you were saying and the first thing on your list was to appeal your decision. So to appeal your decision, I was first told I had to go in front of the APC, which I did. I did that. I went through those channels, I told everyone what was happening, they waived the fee so that I could come before the BZA to appeal his decision. So here is where I am today, so everything that I have done I have asked for guidance all the way along the way. One, I’ve asked for guidance from Joe. Two, I’ve asked for guidance of board members. Three, I’ve asked for…I mean I’ve…I’ve called Doctor Anderson more than once and said “where do I go from here? I’m really frustrated and it’s confusing to me what do I do next?” So I really am trying to follow the proper channels.

Dave Rosenbarger: I see that, I’m sitting here thinking appealing it we can’t really look at all this stuff that you’re putting out here because we have to decide did he interpret the law for the White County Zoning Ordinance.

Carl Hites: The very short part of that is, are there two principle structures on the parcel.

Dave Rosenbarger: Exactly, we’ve got to decide did Joe interpret it is there two principle structures and that’s kind of the end of it. My big thing would’ve been more coming back and asking for a variance to allow it to have it. Uh, because what’s happening tonight…

Brooke Johnson: I have a list of options that as I sat with him and requesting a variance was number 4 on his list, right after was suing the city.

Carl Hites: Right now what we have to deal with is there two principle structures on this property, is Joe correct in that assessment…

Dave Rosenbarger: As written in our ordinance.

Carl Hites: Everything else will have to be dealt with at a different time.

Brooke Johnson: Right, so according to ordinance I was allowed this permit for an accessory structure as an efficiency apartment. It is a home and efficiency.

Carl Hites: So your contention is that there is not two principle structures on this…

Brooke Johnson: Absolutely.

Carl Hites: Can you tell me exactly what makes it not two principle structures?

Brooke Johnson: Because I was an absolute layman and came to the people that knew this and told me how to go about doing this before I did it and they said to make this an accessory structure you have to make it efficiency, you have to put in a shower even if licensing says you don’t need it. And you have to have your shower this far away from your toilet and you have to do this to meet ordinances. The state doesn’t say I need a shower. I mean, I’m not showering kids; there is a shower in there because that was what I was told I needed to do to make that an efficiency apartment so that it was an accessory structure to the home.

Carl Hites: Any other questions?

Joe Rogers: No, but I would like a rebuttal.

Carl Hites: You’ll get a chance to talk again ma’am, would you let Joe have the floor for a minute.

Brooke Johnson: Sure.

Joe Rogers: I would say that I think it’s important that the Board recognize that commentary that is made I would vehemently disagree with and I don’t really believe that it’s an appropriate topic to talk about at this meeting because that’s not the issue. The issue is that whether or not she has two principle structures. In the applicant’s documents that she provided she says on page 10 “My accessory is identical with the principle use of the lot.” So, you can call it what you want; but it’s the use that’s established from the zoning ordinance whether it’s a principle or an accessory structure. So in this case she’s saying it’s identical to what’s on the lot. On page 8 she says and I quote “by all of these definitions I believe I can have more than one principle building within the highlighted exception.” So she’s admitting and acknowledging in her own documentation that she has more than one principle building. That’s the only question that’s in front of you; there aren’t any other questions in front of you. So, if I agree she has more than one principle building and she agrees she has more than one principle building, how she got to that point is irrelevant. Uh, the commentary I think, as far as parking is concerned as far as the building permit is concerned as far as the addresses are concerned, I could go into all of that and I could give you an opposing side to that argument but I don’t believe it has relevance. What’s in front of you tonight is whether or not I’ve reasonably interpreted the ordinance correctly it appears on that matter both her and I are in agreement.

Carl Hites: Joe could you read to us the definition in our code of a principle structure?

Joe Rogers: Uh, yeah, it’s in your packet, uh, she included it with the definitions. Chapter 14, principle structure is the primary structure on a property that’s what a principle structure is called. A principle use is the primary use which the property is devoted is the main purpose for which the property exists. So by having the principle use in two different structures you’ve created two principle buildings.

Carl Hites: Now, could you tell me how that would compare to…well, for example, my veterinary clinic, when I had the clinic and then I had a barn that I used as a clinic so I had two structures and did that make two principle uses? Was I in violation?

Joe Rogers: No, if the barn was used in conjunction with the use of the principle structure you are not in violation. If, I would contend, you had a veterinary office on your lot, another vet came in and put an office in the other building, you have then created two principle structures, and that would not be allowed.

Carl Hites: So, if Brooke had her businesses in just two different buildings but it’s all under one business, would that fall in the same type of scenario?

Joe Rogers: If she had a single license and she converted the garage so that it was suitable by the state that she could segregate the people. Let’s say she has 12 kids and 3 of them are 1-3 years old and she wanted to use that accessory structure to separate the kids under a single license we would allow her to do that.

Carl Hites: Is there some reason she can’t have a single license for that situation that she has?

Joe Rogers: She couldn’t have as many kids then that she has.

Carl Hites: Oh, that’s the limiting factor, the number of children.

Joe Rogers: Yes.

Dave Rosenbarger: So it becomes two separate businesses.

Carl Hites: We have two businesses.

Joe Rogers: Anything else from me?

Dave Rosenbarger: Not right now.

Brooke Johnson: Okay, a couple of things I guess to rebuttal that…I am a sole proprietor of the business. I have 5 day care homes. One of which I live in; I am licensed in each home. I direct all of those programs. It is one business, like you said if you have a vet clinic and the fire marshal says you’re only allowed 12 clients in your home but you might be allowed 6 clients in your garage now you’re allowed 18 clients because that’s what the fire marshal tells you. You may be the one in charge of both of these and it may be one business, but you’re allowed more because of more space and that’s what the state has allowed me to do. The state has allowed me because I am a sole proprietor and I do have the more space to separate those to allow more people. I am sole proprietor; I have one tax id number not five. I don’t file my taxes on each business separate it’s all one business, it’s all one entity, it’s all me. Um, if I’m calling it a primary structure to Joe it’s because at this point I’m trying to agree with Joe that even if this makes it a primary structure, you have allowed this to happen. Do I believe it’s a primary structure? No. I’ve been told if I create an accessory apartment, this is a home, let’s get into this okay…If I buy a home tomorrow and I want to convert the garage into an apartment…if people are living here…and people are living here are they now two primary structures because they serve the same purpose? Cause there are people living there, there are families living in each of them. No. It’s still an accessory structure, what makes something an accessory structure is the structure of it not the content of it. So the content of what is inside is controlled by the state licensing the structure itself is what you guys have jurisdiction over. The structure itself in any R-2 district, I’m… any person is allowed to create an efficiency apartment. What I do with that apartment, unless there is something that says something different, I’m able to do whatever entities tell me to do. I’m allowed to have a business in it, whatever business entity I answer to gives me the restrictions of that efficiency apartment, whether it be someone needs to live there, whether it has to be so many square foot, whether it be you have to have sprinklers systems, whether it be I mean; those are all things that are not with the county.

Carl Hites: Brooke, how do you answer the point that if unless you have two separate licenses your limited with the number of children. It seems to me that the point of the licensing is to regulate the number of children.

Brooke Johnson: Um-hm.

Carl Hites: Certainly with the intention of the welfare of the children involved.

Brooke Johnson: Correct.

Carl Hites: And so if there’s some reason that just because of naming you can house more children than you could if it had a different name that doesn’t seem to me to affect the idea of how many children are in that area. Surely that’s the point…

Brooke Johnson: State licensing also doesn’t allow. So my primary home has a license with X amount of kids allowed to be there. So, I create an efficiency apartment, unless this efficiency apartment is licensed and I have X children enrolled in it in that place, these children from this home aren’t allowed to be there. It’s completely…You have to have children registered for each location. So, what the state does is come in and decides what the safety of the children is for each structure and they do allow more than one license. That’s what I continue to ask Joe, I’m like what makes a second primary structure, originally he said the license and I said “oh well I’ll do away with the license and I’m allowed to have a home daycare, not a house daycare where I can have 6 children or less, other than my own or children that are related to me without a license without any jurisdiction and I can do that. So then I was at a meeting last Monday cause he’s trying to change that rule, trying to make me not be able to do that either. So I’m just sitting here saying well, why did someone approve this? I mean my site plan said exactly what it was for. Dave Anderson spoke to my state licensing representative to make sure that what they were doing met everyone’s guidelines. Never in my million years did I think I would be standing here arguing over this whole deal. I mean I did my research.

Carl Hites: If we could get your opinion in this, what would be Brooke’s next step?

Joe Rogers: If you support my decision?

Carl Hites: Yes.

Joe Rogers: She would go through with the balance of the enforcement procedure. So she would be issued a citation and given so many days to remedy it, remedy the correction at that point she would have whatever options there are, which are what she has now. She could get compliant, she could apply for a variance, she could submit a compliance plan that brings her into compliance.

Brooke Johnson: I suggested that I ask to rezone.

Joe Rogers: Could ask for a rezone.

Dave Rosenbarger: What would she have to rezone to? What would that sit under to be able to have two…

Joe Rogers: Well, you can’t. You know, the rezone doesn’t help the citation. We’re getting into again, a peripheral issue again. First of all let me say that, I’d like to go back for just a minute. The fact that she can create a utility apartment out of a garage does not entitle you to put a day care in it by zoning ordinance an accessory apartment, which is what we call that is provided for in the schedule of uses, that’s what it’s a permitted accessory use in an R-2 district. You cannot find where under the schedule of uses it says where you are then entitled to do whatever you want to with that utility, with that accessory garage. So, the bigger problem…

Brooke Johnson: There’s also nothing restricting that.

Joe Rogers: The building permit that she’s referring to has nowhere on it where it says anything related to day care, it says that she’s going to create living quarters which would be a utility apartment. She could use that for an accessory apartment. That would be a legitimate use. But once you convert it to utilize it as a day care home then you have created a second principle structure and that’s my point. You know, if she, if she can produce documents which say or show we assigned a second address and we assigned it as a principle structure, that we permitted her to put the day care center in there. I’m going to tell you right now it has no merit. Our office has no authority to create law, even if we make a mistake and allow something that is illegal. We have, once it’s identified that we have granted something illegal we have to go back and fix it. And, an individual has rights that they can pursue if they’ve been wronged in that fashion, but in this case the building permit said she was going to convert to living quarters. We have no issue with that that creates an accessory apartment permitted by zoning ordinance. It does not permit by zoning ordinance that you then create a day care home out of it.

Brooke Johnson: Okay, but where in zoning ordinance does it say that if you create an accessory structure that is an efficiency that you cannot have a daycare in it?

Dave Rosenbarger: You can’t have a liquor store in it either.

Brooke Johnson: Right. But what I’m saying is by state, the state says that you can. So when I came to Dave and I said here are what my plans are…Here they’re signed with Joe’s name on 1-16-13 after I received a license at that location.

Joe Rogers: And what does it say, what is the use that it has on there?

Brooke Johnson: It says pre-established grandfathered use as of 1-16-13, may require upgrade on further development of site. It notes the house, the garage, the setbacks and that is when parking became an issue and the church then allowed us to park there and then there was no longer an issue.

Joe Rogers: That’s not true and that’s not relevant to the matter at hand. You had a letter in 2013, which said that parking was only a temporary solution. You had to correct that, you had to make plans to correct it.

Brooke Johnson: I’m only noting that…

Joe Rogers: And it’s not relevant to the matter at hand.

Brooke Johnson: I’m only noting that this acknowledges that you knew I was using it at that time and you didn’t correct anything until there was an upset neighbor.

Joe Rogers: It doesn’t say that you’re using it as a daycare home.

Brooke Johnson: You’re saying how many spaces I need and you’re allowing spaces for two daycares.

Joe Rogers: But that is for the principle structure.

Brooke Johnson: Oh, I need five parking spaces for one structure?

Joe Rogers: At the time you did.

Brooke Johnson: Explain to me how.

Joe Rogers: That’s what the zoning ordinance called out.

Brooke Johnson: Okay. Pull it up for me I would like to see it.

Joe Rogers: It’s been amended since then.

Brooke Johnson: Of course it has.

Joe Rogers: Yea, well she can laugh if she wants, I mean she can come in and get a hold of that ordinance that dictated the parking again is not your main issue at hand.

Brooke Johnson: I’m not saying that parking is the issue Joe, what I’m saying is at this time you acknowledged that for these two structures I needed this many parking spaces. Okay, you signed it.

Carl Hites: Okay, we’re going to stop here; we’re not going to argue who said this and who said this. What we do have to figure out is… are there two structures on one lot. Do you have anything else to add to that conversation?

Brooke Johnson: Yes, that if this is two principle structures on one lot there should be an amendment to the definition of principle structure and accessory structure.

Carl Hites: There may be things about the ordinance that could be changed. That’s not our point tonight. So tonight we just have to decide about the two principle structures. Do you have anything that you can add about that, about the definition?

Brooke Johnson: No, I do question again I guess what he said differently in the Area Plan meeting was that they couldn’t enforce anything more stringent than the state and I do question that.

Carl Hites: And we’ve considered that. Do you guys have any other questions? I think we have other people that would like to comment, so we need to move along. And if you wish to have another comment we will allow that. Brooke, I’ve been informed that under a judicial hearing that I can’t open the floor to comment unless you request someone to comment. It would be up to you to let them do that. So, do you have anyone that you would like to ask to comment?

Shari Rees: I know you want to stay strictly on this but, um, I ‘m Brooke’s mother and I’ve went through part of this process, most of this process with her. My one thing and I just want … when you’re trying to consider what you’re thinking I just have this one question. Joe said that once you realize there’s a mistake you need to correct it. I want to know who bears that financial burden because she was given permission, she’s put considerable money for that purpose into that daycare now does she bear the burden or does the people who make the mistake bear the burden? And I just want you to consider that. Thank you.

Carl Hites: Would you like to call these folks?

Brooke Johnson: No.

Carl Hites: As I understand it that’s what I have to do. Joe is that correct?

Joe Rogers: If I can explain…this is a judicial hearing and so it has to be handled as you are a court of law and I could call witnesses or she could call witnesses but the general public doesn’t get the option to speak.

Brooke Johnson: I really don’t have any issues with anyone speaking, I’m doing this for all the right reasons and the issues at hand that anyone could describe aren’t issues we’re discussing tonight so as far as I’m concerned feel free to speak.

Carl Hites: I don’t think that anybody argues that you’re not doing it for good reasons. Any questions from the board? Joe do you have any last comments?

Joe Rogers: Um, my only final comments would be is to just refer you back to the section of 12.6 and your determination is whether or not I made a reasonable interpretation or not.

Carl Hites: Do you have anything?

Richard Holmes: I have a question, if she’s denied tonight. What steps does she have to…

Joe Rogers: The steps that were outlined when she was…she was told she could apply for a rezone…

Carl Hites: But the rezone won’t solve her problems.

Joe Rogers: Well, not in my opinion but that’s…she could do it.

Carl Hites: A variance would, she could apply for a variance.

Joe Rogers: She could apply for a variance, I think as she stated she could go to the board and ask for a definitional change of principle structure…it won’t help her currently but once that was accepted and went through the legislative process if there was a change…

Carl Hites: Variances are relatively simple to apply for.

Brooke Johnson: Okay, so what could I do that could help my current situation? Not like what could I do that’s not going to help cause that’s kind of where I’m at. I continue to get the run around of answers like that where circles are being talked around me and then I’m confused.

Carl Hites: That’s what we were just talking about, the fact that you could apply for a variance. It’s a relatively simple procedure, although it’s not guaranteed to be a positive outcome and reasonably priced and could be dealt with relatively promptly. We don’t have a February meeting correct? So it seems to me…

Male (John Rees): How do you do that variance?

Carl Hites: How do you do it? Well, I don’t know if you were here for the whole meeting…

Brooke Johnson: You pay $295 and you get a…

Carl Hites: The meeting, the things we did earlier were variance requests. You initiate that process in Joe’s office, we put you on the agenda we come and do these things that we do tonight and we decide if we think the circumstances…

Dave Rosenbarger: And the neighbors get to voice their concerns either or.

Joe Rogers: Yea, there would be notifications go out to surrounding neighbors, sign posted on the yard request for variance and then there would be a public hearing where anybody could comment.

Richard Holmes: That would be your next step or terminate…

Shari Rees: But didn’t I just hear you say that she could do that but it wouldn’t be good?

Carl Hites: No, that’s not true, that’s a rezone. The variance if it was granted let her go ahead…

Brooke Johnson: The Area Plan suggested this route because made me not work with Joe because obviously there’s a conflict there.

Carl Hites: The only thing you would have to do with Joe is…

Dave Rosenbarger: fill out the paperwork.

Carl Hites: Do you have anything else that you would like to add?

Brooke Johnson: No, I think someone else wanted to speak though.

Male (unknown): Did you say if one of the licenses went away it would be alright?

Joe Rogers: If you eliminate the second principle structure then on that regard then she would be compliant.

Brooke Johnson: so I can still have kids there without a license, just no license because the license makes it a second principle structure?

Joe Rogers: If you have, if it is used as, um, well I guess I’m not even going to comment because what she’s asking for is another interpretation of the ordinance and every time I…

Brooke Johnson: But you’re the guy to interpret it and that’s why I…

Carl Hites: For tonight we need to stick with what we’re doing and on top of that our lawyer’s not here and I think we’re getting into sticky legal questions here. We’re not going to comment further on that, that’s not tonight’s point. Sir your name?

Brock Suhr: My name is Brock Suhr, with respect to the board and Ms. Johnson I can understand the boards position and that you have to protect the public and I understand and respect that and I believe that is what you are doing. Ms. Johnson I understand that you have a business and you’re trying to protect that as well and I respect that I think it’s great. My question would be is there a way if you sided on the side of Joe and there would be a fine with that am I correct? There’s a penalty or a fine?

Carl Hites: Well we…there could be.

Brock Suhr: could be okay is there a way that that could be deferred until after a variance?

Carl Hites: The board would have to decide that.

Joe Rogers: Well, wait a minute; back up the way the process would work is if they affirm my decision, I would then take the next enforcement action which would be to issue a citation and a fine. At that point in time she can, whatever action she wants to take including she could appeal that fine to this board and ask that the fine be eliminated or reduced. Okay, she would have an option there. But the next enforcement step is to issue a citation and require compliance within a certain time frame.

Brock Suhr: Okay, that seems reasonable. Alright, that’s all I have. Thank you.

Carl Hites: Okay, do members have any other questions? Anybody? You might regret that…

Dave Rosenbarger: One of the questions on here Joe is did she file an appeal within the 30 days. I can’t find my dates. When was this brought to her attention? And when did she file the appeal?

Joe Rogers: The appeal? Um, her application to appeal was filed uh…

Brook Johnson: I did, I’ll answer that for you. I did appeal within 30 days, it went to Joe’s junk mail but Tina received it and Joe didn’t.

Dave Rosenbarger: Okay, I was thinking that I read all of that stuff and it was like…

Brook Johnson: He issued the citation and then I called Tina and I said “hey I sent this to you and Joe, you should probably check Joes’ and then Joe found it. And he said “sorry it’s the first time your stuff has went to junk mail.”

Dave Rosenbarger: Was it filed in 30 days?

Joe Rogers: We did not consider her filing tardy.

Dave Rosenbarger: Okay, that’s what I needed.

Carl Hites: Ready to vote?

Brooke Johnson: and if I understand correctly the choices are in favor of Joe, against Joe, or to modify Joe’s decision?

Carl Hites: Yes ma’am.

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

Carl Hites: Brooke the board has unanimously affirmed Joe’s decision in this respect. You do have reasonable options as far as trying to proceed, and you can get into compliance or get permission to do. At least one comment was made on our ballots that any fine be waived until you’ve got a reasonable time to try and make some progress on getting to an agreement here. I hope you understand that all of us are compassionate with your position in this respect. But, the fine point was we all agreed that’s how it is. So, I think you have reasonable and relatively simple ways to proceed from here and I hope…

Brooke Johnson: Can I ask a couple of questions?

Carl Hites: You can ask a couple of brief questions. But this is over.

Brooke Johnson: Okay, I understand that. The reason I’m appealing the decision and it’s time to change something is because every time I asked a question I could, if what makes it a primary structure with a license, I can unlicense it and I’m told we’re not sure. I could turn it into a ministry instead of a license and is it still two primary structures, I don’t know.

Carl Hites: Well and those questions I really think you need legal advice.

Brooke Johnson: I could turn it into one structure and Joe can still say I can’t have two licenses.

Carl Hites: I really think you need to talk to someone who could advise you. We’ve given you a couple of options that we’re aware of but you need somebody to help you out. Okay, thank you.

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

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

Appeal # 13 - 5 votes cast; 5 Affirmed; 0 Reversed; 0 Modified

Other Business:

There were two brief items of business. First, there was short discussion about having Director Rogers post the signs for the Variance requests instead of the applicants. Director Rogers explained that there have been times that he’s had to make 2 or 3 trips to get a picture before the sign is actually posted. If he posts the signs then he could take a picture to document it at the same time. There was a motion by Dave Rosenbarger for Director Rogers to post the Variance request signs instead of the applicants, with a second from Dennis Sterrett. Motion carried, vote unanimous. The second item of business was about board packet content and what it was that the board wanted to see in what they received thru email. After short discussion it was decided that what the board was receiving in the packets was sufficient.

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

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.” _________________________________________________