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BZA MEETING

September 20, 2018

 

The White County Area Board of Zoning Appeals met Thursday, September 20, 2018, at 6:00 p.m. in the Commissioners’ Meeting Room, Second Floor, County Building, Monticello, Indiana.

Present: Dennis Sterrett, Chris McWhirter, Randy Conwell, Stan Minnick, and Abbey Gross

Also attending were Executive Director Joseph W. Rogers and Board Secretary Sarah Baunach

Absent: Attorney Abigail Diener

Visitors attending were: Rebecca Longster, Iris Longster, and Tim Trowbridge

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

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Minutes and Findings of Fact: There was a motion by Dennis Sterrett and a second by Stan Minnick to approve the meeting minutes dated July 19, 2018 as written. Motion was carried unanimously.

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 the developing the Findings of Fact for each hearing.

Variance #2984

James, Paula, & Iris Longster & Cynthia White, Rebecca Longster, POA – Developmental Standards Parking – CONTINUED

Special Exception #2985

Executive Director Joseph Rogers stepped to the podium and explained that he was going “old school” since he had only been in the office for eight days. He stated that he was able to visit the sites. He informed the Board that Sarah believes former Executive Director Colin Betts had taken some photos of the sites, however we haven’t yet been able to locate the camera so there are no photos to present. Director Rogers went on to introduce the staff report and affiliated documents into the official record of the meeting for Petition # 2985. He stated that Petition #2985 is a Special Exception Use for a Vacation Rental by Owner. He said the previous Variance that Chairman Dennis Sterrett had referred to had to do with requesting a variance for ADA parking and if the Board would notice in their packet, there was a hand drawn design which showed that they could satisfy ADA parking requirements, so the variance was no longer necessary. It was left on the Agenda as continued because Joe did not want them to withdraw the petition and the Longsters have to refile if the Board didn’t agree with his assessment. If the Board didn’t agree, then the Longsters could be heard next month without paying any kind of fee, paperwork, etc. Basically, ADA Law states that when maintenance is being done to a parking area and you have an ADA requirement, you are required to approximate ADA standards as close as you can. Director Rogers explained that for example, if you are going to restripe a parking lot then that is a triggering mechanism to comply with ADA rules. However, ADA says if you are restriping a lot and you have to put in curb cuts, the parking lot is not slopped correctly, along with other limitations then it is our responsibility to make you comply as close as you can to the law and that becomes acceptable. Therefore, Director Rogers determined that the applicant is able to provide the sized space necessary on a paved surface that leads to an access route that is flat with no major step ups, which makes it accessible. Director Rogers stated that in his determination they have satisfied the ADA requirement and he did not feel it was necessary for them to get a variance for ADA parking. Chairman Dennis Sterrett asked what would happen if the applicant was not able to provide the handicap parking? Director Rogers stated the applicant would have to ask for a variance. The only way you can exempt a property from ADA parking space regulations is to waive all parking requirements. In other words, if you say, we are not going to make you satisfy parking requirements: for example, if someone is going to put in a wireless support structure and there is no parking requirement then there is no ADA parking requirement. However, as soon as you require one space or more then it will trigger an ADA requirement, which is a Federal requirement. This is not something the Board of Zoning Appeals has the authority to waive. Therefore, the Board needs to decide whether the applicant doesn’t need parking at all or they will need an ADA space. Director Rogers stated that with the ADA space, there is some liberty that can be taken to try to satisfy that, but he is not aware of any authority the Board has to waive a Federal Statute. Denny asked that since this may be a vacation home, “doesn’t there have to be parking?” Director Rogers replied that the parking requirement is 2 spaces and requires them to have 1 ADA space, which they have satisfied with the one space requirement. Board Member Randall Conwell asked, “Even though the building is not handicapped accessible?” Director Rogers explained that the ADA standard the Board is considering is relative to the parking space and the access route, everything from the door in…is building code, the Zoning Ordinance only covers the exterior. So whatever building code is required for ADA would be regulated by Jacob Garling, Building Inspector. Director Rogers then continued to go on with the information of petition #2985, informing everyone that the subject property is typical of those targeted for use as a VRBO within this community. The applicant has provided an acceptable design proposal to meet the ADA parking requirements, along with rules & regulations document that was provided to the Board and which satisfied the requirements of the previous Executive Director. Director Rogers stated he had no reason to take exception with Colin’s determination. The file includes an appropriate setback waiver from the neighboring property owner as provided from subsection 3.16.9 of Chapter 3 in the White County Zoning Ordinance. The staff has no current concerns with this request and has not received any communications from the general public. Chairman Dennis Sterrett inquired if they meet the setbacks and how far the neighbor to the North is. Director Rogers stated that the applicant meets the setbacks and the neighbor’s property line to the North is close to 70’ away and then there is vacant ground for quite some distance. Chairman Sterrett asked if there were any questions from the Board. There were no questions. Chairman Sterrett then asked if there was anybody at the meeting to represent the request and Rebecca Longster stepped to the podium. Rebecca informed the Board that she is Power of Attorney for her mother-in-law, Iris Longster. Rebecca stated that she has no questions for the Board. Chairman Sterrett asked if she was renting the home now and Rebecca stated that she has suspended the bookings pending the outcome of the petition, but she has had renters in the past. Chairman Sterrett asked if there were any problems. Rebecca said she has not had any problems or complaints and some of the previous renters have even sat around the fire pit with the abutting property owners. There were no more questions from the Board.

After tabulating the ballots, Chairman Dennis Sterrett read the following results into the record: Special Exception Use #2985 - 5 Votes cast; 5 to grant, 0 to deny; Petition Granted.

Variance # 2986

Executive Director Rogers stepped to the podium to present the next Petition # 2986, TW Buildings LLC, requesting an allowance to build a pole barn with a height of 26’2” vs. the allowable of 19’ for a B-2, General Business District, which translates into a 7’2” variance request. Director Rogers went on to introduce the staff report and affiliated documents into the official record of the meeting for Petition # 2986. Director Rogers indicated the Staff does not believe that granting the variance would be injurious to the public, alter the use, value, or character of the area, or affect neighboring properties in an adverse manner. The Staff also believes the increased height would not negatively affect views or surrounding properties. At the time the staff report was written there had been no communications with our office concerning this request. Since that time, we have received 11 communications from various individuals; all 11 communications were in support of the request. There have been no negative communications from the general public. However, out of the 11 communications, only two of those people are within the interested party area designated by our office. In other words, two of the people that have called, live within the eighth mile or 2 lot perimeter that we define as interested parties, all the rest are not identified on the interested parties mailing list generated by the office. The office does not have any particular concerns with the request with one exception; there is a gravel drive on the east side of the building, which violates zoning developmental standards. The drive exceeds the allowable driveway width provided by the Zoning Ordinance. The GIS website indicates that the driveway was installed sometime between 2013 – 2014. The driveway does not pertain to the variance; however, the variance request has a site condition that is non-complaint. Director Rogers stated that the Board will need to discuss this issue or “kick the can” down the road for some other day. Director Rogers informed the board that there are no other concerns and would agree that the need for boat storage seems to be pretty strong. Chairman Sterrett replied, “Too Wide?” Director Rogers informed him that the maximum driveway width provided by ordinance is 30 foot. Board member Abbey Gross asked how wide the driveway is and Joe stated that it is about 70 foot. Chairman Sterrett then asked what the Ordinance was trying to prevent by only having a maximum width of 30 foot. Director Rogers replied that the Ordinance tries to prevent excessive access to a private or public road by having a 30’ width to keep the traffic down, unless it is commercial and then the maximum width is 40 foot. At that time Tim Trowbridge, 10 W 900 N, Chesterton, IN, stepped up to the podium. Tim stated that on his application he had wrote 24’8” peak height and former Colin Betts crossed that out and wrote 26’2” peak height. Director Rogers informed him that was correct and that he had met with the Building Inspector about the calculation of the height. Director Rogers said that he and the building Inspector figured the height was somewhere between 25’ and 26’, so they were comfortable with leaving the height allowance at 26’2”. Tim said he was fine with that. Tim stated the driveway (located on the Northeast corner of the property) is wide because there are four sliding doors and when backing a boat into the building there isn’t a lot of room between the street and the building. Tim said there was already gravel there prior to him purchasing the property; however, grass had grown over it so he cleaned it up and added gravel to restore it to how he believed it existed. Tim said he hoped that addressed the issue with the driveway. Chairman Sterrett asked if the height of the building was going to be less than the 26’2” and Tim replied that he calculated the height at 24’8”. Tim stated the previous prints had a 3.5/12 roof pitch and he thought that is why Colin had calculated the 26’2”, but now the prints have been changed to a 3/12 roof pitch. Director Rogers said, “If you have a 3/12 pitch, 36’ width, and a 9’ increase, and a height of 15’8” then that would calculate to the 24’8”. However, that doesn’t take into account that the 15’8” measurement is to the lower level of the cross board and the height elevation starts at the top of the cross board so we had to make an allowance for the cross-board height and that’s why we came up with a different number than the applicant”. Director Rogers stated that he just wanted the measurement request to be a safe number. Chairman Sterrett asked what the height of the existing shed is and Tim wasn’t exactly sure. Tim stated that the existing building has two tiers and on the bottom of the trusses its 12’ down, 65’ wide, and the doors are 12’. The back part of the building is probably 16’ to the bottom of the trusses. Chairman Sterrett asked if the new building will be shorter or taller than the existing building. Tim informed him that it will be smaller than the back portion of the existing building. Chairman Sterrett then asked what needed to be done about “Kicking this Can?” Director Rogers informed him that they have the option to do nothing, require him to narrow the driveway to the 30’ width, or they can except that it existed previously and just became grass covered and that it should be considered grandfathered. Chairman Sterrett asked Tim if the driveway width was matching a door width on the building. Tim said that it is pretty close. Chairman Sterrett said that if it was facing West Shafer Dr then it might be a problem and that the County Highway probably would not like it that wide. Director Rogers stated, technically, the property owner would have needed to get a driveway permit before we would ever issue an Improvement Location Permit. However, it depends on whether you determine that it was already there and he just fixed it up and made it look better. Board Member Randall Conwell stated that it should be grandfathered in considering that it was already there and grass had grown over it.

Chairman Sterrett made a motion to consider the driveway width to be a grandfathered use, seconded by Randall Conwell. All voted affirmatively to the motion. Motion was Approved.

After tabulating the petition ballots, Chairman Sterrett read the following results into the record: Variance #2986 - 5 Votes cast; 5 to grant, 0 to deny; Petition Granted.

Director Joe Rogers stepped to the podium. He stated that he has been going through the records from the past year and a half the best he can. He said it appears that several times variances have been granted from the parking requirements for boat storage facilities. Director Rogers explained that legislative bodies are who determine what the developmental standards are for the county & municipalities. For this board to allow a deviation from those standards, someone has to demonstrate a practical difficulty, which can’t be because something is inconvenient or it is going to cost a lot. Also, when you see a reoccurring variance request then that is when you should be directing the Executive Director to go back to the Area Plan Commission and request that those standards be reconsidered. The Board should notice that there is a statement at the bottom of the Findings of Fact that says: “The Board finds that the variance herein authorized and granted is not so typical or recurrent in nature as to make need for the formation of a general regulation under an amendment of the Ordinance for the above said condition or situation of the above said specific piece of property; the Board additionally finds that the above said variance is based on the findings of fact and that said findings of fact support and create a fact situation that authorizes the above said variance as provided for in the White County Indiana Zoning Control Ordinance”. By approving the variance, you are certifying that the variance is not a reoccurring occurrence; if it is reoccurring then the Board needs to have the Executive Director go back to the Area Plan Commission and ask for reconsideration of the standard. Joe stated the other common theme he noticed is the Special Exception Use for Vacation Rental by Owner. Director Rogers said that when he was Executive Director the last time there was a complaint about a VRBO operation and it went to litigation. He said that they won the litigation but it was determined that there needed to be better standards for those types of facilities in order to be able to be more secure in any future litigations. It was never intended to target Vacation Rentals by Owner. At that time the Board and the legislative bodies wanted to be able to deal with situations where there were complaints or aggravations and have the standards that would allow them to do proper enforcement. Director Rogers said that he would’ve objected to all the recent VRBOs that came in front of the board because that was not the intent of the ordinance. Joe stated that once the VRBO applicants came in front of the board then there was the issue of the ADA Parking. Chairman Sterrett informed Director Rogers that he did not understand that and Director Rogers said that the regulations were passed as a defensive mechanism. Director Rogers stated that in the years he has been in the office, the office has never been proactive in seeking violators. He said the only time they have been proactive is when he went to the Area Plan Commissioners and asked to be proactive on signs due to so many signs being put up illegally. Director Rogers stated that otherwise the office has never been proactive. Chairman Sterrett said, “So you would need a complaint from a neighbor or someone?” Director Rogers informed him that was correct and that would trigger the office to do an investigation and get them to comply with the standards or apply for a variance. Director Rogers informed the Board that if there seems to be repetition then the Board should bring that to his attention so he can go to the Area Plan Commissioners and have the standards reviewed and possibly modified, if needed.

There being no further business, Chairman Sterrett motioned to adjourn the meeting, with a second from Board Member Abbey Gross. Motion carried, meeting adjourned at 6:43 p.m.

Respectfully submitted,

__________________________

Joseph W. Rogers, Executive Director

White County Area Plan Commission

__________________________

Sarah Baunach, Secretary

Area Board of Zoning Appeals

Document Prepared By: White County Area Plan Secretary Sarah Baunach, “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.”

__________________________

Sarah Baunach, Secretary

Area Board of Zoning Appeals