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BZA MEETING

May 30, 2019

The White County Area Board of Zoning Appeals met Thursday, May 30, 2019, at 6:00 p.m. in the Commissioners’ Meeting Room, Second Floor, White County Government Center, Monticello, Indiana.

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

Also attending were Executive Director Joseph W. Rogers, Board Secretary Erika Martinez, Office Administrator Annette Cobb and Area Plan Attorney Makenzie Martin

Visitors attending were: Todd Hankins

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

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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 of the Findings of Fact for each hearing.

Continued Variance #2994

Director Rogers stepped up to the podium to provide the Board with an overview of the variance request from the previous meeting of May 16, 2019, along with the current variance request. Director Rogers recapped the concerns the Board and Staff had with the survey that preceded the decision to continue the hearing. Director Rogers stated that the differences between the original survey and Exhibit A caused concern over survey accuracy and the Board decided to continue the May 16th hearing until the Staff and/or applicant could receive clarification over the discrepancies. Director Rogers contacted the surveyor and it was found that the survey dated April 24, 2019 would have actually allowed the garage to encroach in the right-of-way. A new survey was completed and submitted to the Staff. This survey, dated May 23, 2019, provided the distance to the proposed structure from the road asphalt as 15’ and from the property line as point five (.5) feet. As a result, the applicant updated his proposal so that the garage would be attached directly to the dwelling removing the previous 6’ walkway. The corrected survey also indicates that the proposed garage will be 3.6’ from the south property line. The applicant has updated his request as a .5’ rear (roadside) setback and a 3.6’ south side setback.

Director Rogers asked the applicant if he wanted to have the requests heard separate or together. Todd L. Hankins, Owner, stated he wanted the requests to be heard together.

Board member, Stan Minnick, asked if the measurement provided on the survey is to the foundation of the structure or the overhang. Director Rogers stated that surveys are typically measured to the foundation, and the overhang is not considered in the setback requirement unless it is over 16”. Director Rogers asked the applicant if the proposed garage is designed with an overhang. Mr. Hankins stated that the proposed garage will probably have an overhang on all sides of 12”. Director Rogers stated that, if that is the case, he believed the overhang would extend over the property line.

Mr. Hankins stepped up to the podium to represent his request. Mr. Hankins stated the proposed garage is 15’ further in and now will be attached to the house and is now 24’ from the back of the house to the north corner; as a result, he went wider on the proposed garage to try and get more space. Mr. Hankins stated that his neighbor to the south, John Senesac, has no issue with the variance.

Chairman Sterrett asked the applicant where the door is going to be located. Mr. Hankins stated he will be putting in two 16’ doors and a small door on the front side as well as a door where the garage offsets to the south. Chairman Sterrett asked if he would have to construct a retaining wall. Director Rogers stated that a retaining wall would not require a building permit unless over 3’ tall.

A general discussion between Abbey Gross and Director Rogers pursued about the right of way and how wide that right of way is. Director Rogers stated that the original plat survey does not show a consistent dimension and does not include the dimension for the area of concern. Abbey Gross stated her concern is that there is nothing to stop whoever owns the road from constructing the road as platted. Abbey Gross asked the applicant who the party is that maintains the road. Mr. Hankins stated that they have a neighborhood association and that the residents of the subdivision pay $60 a year to maintain the road.

Chairman Sterrett asked the applicant if he thinks he would still have to park on the asphalt. Mr. Hankins stated no, that the whole objective is to get the vehicles off the edge of the roadway and inside the garage.

Director Rogers stated that the applicant originally had plans for a 30’ wide garage that was reduced to 28’ and is now presented again as 30’ wide. Director Roger asked the applicant if there is some reason why he can’t reduce the size of the garage to get it away from the south property line. Mr. Hankins stated that if he takes the proposed garage to 28’ he will not have enough room for three cars. Mr. Hankins also stated that the wider garage allows the access door to be abutted to his existing walkway.

Director Rogers stated that he questions the Board’s ability to grant a variance that will encroach into the right-of-way. Director Roger’s suggested to the Board that they add a condition that the owner must obtain a written right to encroach from the Homeowner’s Association or remove the overhang on the roadside to prevent encroachment.

A motion was made by Abbey Gross that the owner either eliminate the overhang from the rear(roadside) property line or provide a right to encroach from the Homeowner’s Association. The motion was seconded by Stan Minnick. The motion was carried unanimously. Attorney Martin passed out the ballots.

After tabulating the ballots, Chairman Dennis Sterrett read the following results into the record: Variance #2994 – 5 votes cast; 4 to grant, 1 to deny;

Petition GRANTED.

Violation #275 Interpretation History

Director Rogers stepped up to the podium and stated there is a complicated situation regarding a property that has had multiple variances applied to the site and he needs the Board’s advice on how to proceed with enforcement actions. Director Rogers stated the subject property is the restaurant that was previously known as “Jakes” on West Shafer drive, located on West Shafer Driver between two soft curves. This business was acquired a few years ago by Loretta Lord the new ownership has created numerous issues for the Staff. The Board Members were presented with a history of rezones and variances for the site and a capsule of the information to clearly show the timeline of activity.

Director Rogers showed the Board Members detailed information for petition #2692, this occurred after the Lakefront Enterprises, LLC took over and decided that they wanted to expand the operation and needed some variances to do so. When petition #2692 was submitted, the Staff identified that if the restaurant were going to increase in size or change from its previous use to a restaurant, then it had to meet the parking requirements. the Staff identified that as a restaurant, the facility would require 14 parking spaces. The applicant’s owned part of lot 4 to lot 10. They submitted a parking plan which showed spaces on the east side of West Shafer Drive, the same side as the restaurant. The same property owners had submitted variance applications for lots 10, 6, 5 and part of 4 in order to build homes, Petition #2691. Those variances were heard first on the same hearing date in 2008 as variance Petition #2692. The Board determined that if they allowed the houses to be built on those lots, there would be nowhere for the homeowners or visitors to park. This was 40 years ago and, even then, the Board recognized that this was a bad location for vehicle parking and pedestrian safety. The Board turned these variance requests down. At the beginning of the Petition hearing for Petition #2692, the Area Plan Attorney said to the applicants that they had just heard the Board make an unfavorable decision for variance Petition #2691 and the basis for that decision was basically traffic and parking concerns and he wondered if the applicants might want to reconsider their submission for Petition #2692 in light of the Board’s decision on Petition #2691. The applicants asked the Board to move on with other business to allow the applicants time to discuss how they might want to proceed. Petition #2692 was rescheduled to the end of the agenda. Upon completion of the Board’s other business, the applicants were asked how they wanted to proceed. The applicants stated they wanted their hearing to be continued to the following month to allow them time to rethink their request.

Director Rogers showed the Staff report for Petition #2692 which specifies the parking requirements as 14, on-premise spaces. Director Rogers stated that the applicants returned a month later with a new survey delineating a new parking plan which moved the parking across the street to where the Blue Door Cottages are located. The applicants stated that Blue Doors has excess parking and that both the restaurant and Cottages are owned by the same people. The applicant stated that moving the parking to the west side of West Shafer Drive would increase the safety of the site. The applicant was thus agreeing with the Board from the previous hearing that it is less safe to have parking on the east side of the street.

Director Rogers showed the Board Members a section of the 1995 Ordinance, Section 4.2001, which provides for on-premise parking on another property when those two properties are owned by the same entity. It would appear the Board granted its approval on that basis, at least in part.

Director Rogers stated that by granting this variance, in his opinion, the Board was determining that it was impractical to provide parking on the same side of the street as the restaurant and that to provide parking on the Blue Door Cottages lot, the property had to be maintained under the same ownership. The position Director Roger has taken is that this decision prevents parking on the east side of West Shafer Drive. To park on the east side of the street, the owner would have had to come back to the Board and have the Board modify or reverse that decision. In addition, they would have had to provide a parking plan that meets and complies with the current zoning ordinance. At no time since that hearing has that been done. At this point there is no parking allowed on lots part 4 thru lot 10. All parking has to be on the west side of the street. Director Rogers showed that even in the Staff report it stated that they are requesting a parking space variance for 15 parking spaces across West Shafer Drive on 1.63 acres, for the existing restaurant.

Director Rogers showed the Board a letter authored by the applicant and submitted to the Board for their consideration; see file #2701 dated 2/21/2008.

During the meeting, the Board stated to the applicant that they wanted to tie the parking variance request to a commitment which would prevent parking on the east side of West Shafer Drive. The applicant stated that they could not agree to that because their Attorney may advise them that they are creating too much of a liability by requiring parking on the west side and that they may be forced to put parking on the east side. Director Roger stated that there was never a formal action taken by the Board during the hearing to restrict parking to the west side. The applicant never conceded or agreed in verbal form that there would not be parking on the east side of West Shafer Drive.

Director Rogers showed the Board the request for Variance #2692 allowing the existing 6 spaces to encroach into the road right of way and to allow 8 additional spaces to be located across the road. The parking that is being called existing was conceded by the applicant to be located in the road right of way, which is confirmed on the associated survey. Under no ordinance since 1972 has it been permitted to create on-premise parking in the road right of way. Director Rogers stated that he does not consider that the allowance of parking in front of the restaurant in the right of way as legal parking in the first place. In a case where an applicant requested to be allowed to place parking in a right-of-way, the Staff (at least currently) would require the applicant to get an agreement to encroach and then seek a variance to see if the Board would agree to that condition and that has never been done.

Director Rogers showed the Board the minutes from the BZA meeting of February 21, 2008 to demonstrate that Miss Anderson, who was speaking on behalf of the applicants, stated that she met with Steve Brooke, to discuss the situation and that Mr. Brookes agreed that parking was safer on the Blue Door Cottages side of the road. In the final analysis, the Highway Superintendent, property owner, the applicant and the Board all agreed that parking should be on the west side of West Shafer Drive.

Director Rogers provided the Board with information on a different Variance, #2941, and stated that this took place when he was Executive Director. Under this petition, the applicants wanted to expand their business and were told to do so would require a variance. The Staff determined that their expansion plan would require an additional 6 parking spaces. The applicant made the argument that 70-75% of their additional business would come from the boat docks and that, in their opinion, the automobile traffic will be minimal compared to that from the boat docks. This basically promoted to the Board that the increase in customer visitation would come from the lake, not the road side, so the request would not result in any additional traffic issues and; therefore, they did not need additional parking spaces. The Board approved this variance under that presumption.

Director Rogers showed the Board the letter that went out from the County Highway Superintendent to the previous Director. The applicant came to the previous Director and asked if they could put their handicap parking in a manner which would encroach in the County right of way and the Director agreed. The County Highway Superintendent asked the director to enforce the parking restriction as failing to do such would create a safety hazard. The previous Director did not rescind his ADA parking space approval prior to his departure from the Area Plan Department.

Director Rogers showed the Board the Finding of Facts from Variance hearing #2941 which substantiated the considerations made by the Board. First, the applicant provided a lease agreement with the property owner across the road to allow utilization of the lessor’s property to satisfy the applicant’s parking requirements. The purpose of this submission was to demonstrate that the restaurant’s on-site parking requirements were being satisfied by the parking across the street. Second, the proposed improvements are unlikely to have any significant impact on road traffic to the facility or parking space demands since most of the customer base accesses the property via the lake; for safety reasons, it is undesirable to allow parking on both sides of West Shafer Drive which would likely have to occur should additional parking spaces be demanded.

Director Rogers stated that when he came to the office, he contacted the property owner and advised her that the restaurant could not provide handicap parking on the east side of West Shafer Drive and that no parking was currently allowed on the east side along the corridor of road abutting lots part 4 thru 10 of Amos Oak Crest 4th Addition. He told the owner that the previous Director had no authority to grant an encroachment without the right of way owner granting that encroachment; thus, the permission Director Betts granted for ADA parking was an illegal decision, in this Director’s opinion. Director Rogers stated that he told the owner that every car that parks on the east side is a unique and separate civil zoning violation and that a fine to the owner will be assessed in the amount of $100 for each day each car parks on the east side of West Shafer Drive in the corridor area. Director Rogers stated, that thus far in the process, nobody had argued with him that they are allowed to have parking on the east side of the road.

The people that own the Blue Door Cottages previously owned all the lots from part 4 thru 10, including lots 7, 8 & 9 upon which the restaurant is built. The owners then elected to sell the restaurant and lots 7, 8 &9 to Loretta Lord. This created a problem because the parking that was allowed on the west, was allowed partially because they were owned by the same owner; this condition changed with the sale so that the on-premise parking spaces allocated for the restaurant were no longer located on property with common ownership. So, now, the owner of the Blue Door Cottages who still owns Lots part 4, 5, 6 & 10, is now taking the position that his parking on the east side of West Shafer Drive is grandfather because people have parked there in the past. Director Rogers stated that he not only disagrees with that premise but he’s not sure that the variance which was granted providing the parking take place on the west side of West Shafer Drive is even valid at this point.

Director Rogers stated that recently, he had an appointment on West Shafer Dr to do an inspection and upon returning to the office, he noticed 7 vehicles parked on the east side of West Shafer Drive along the prohibited corridor. He stopped and snapped a few pictures and the contractor approached him and asked him why he was taking pictures. Director Rogers explained to him that he is taking pictures because there is no parking allowed on the east side of West Shafer Drive. The contractor is aware of this because he spoke at the variance hearing and was one of the individuals that testified that the increased customer traffic was going to come from the lake docks, not from road traffic. The contactor took Director Rogers around that property stating that the restaurant owner can’t keep people from parking on lot 10 since lot 10 was not owned by the restaurant owner. This interaction took place on Thursday May 23rd. On Friday, May 24th, Director Rogers drove by the restaurant and observed 13 vehicles parked on the east side; the next day there were 9. Director Rogers stated that these violations are just from when he drives by the location and do not consider the balance of time parking may be illegally occurring at the site. The next day, there was 11 vehicles parked along the prohibited corridor for a total of 33 cars in a three-day span. The restaurant property owner had an appointment with the Director to discuss sign permits on Wednesday May, 29th 2019. At the meeting, Director Rogers informed her of the continued problem with cars parking on the east side and informed her of the more than $3,000 of fines that had already been accumulated. Director Rogers advised the Board that the owner has attempted to try and cooperate; she has put up no parking signs on the building and striped the concrete with yellow stripping for no parking. She has placed picnic tables on Lot 10 to discourage people from parking on that lot. People are still parking there all along that corridor. The bottom line is that they are going to have to tell people not to park in that area to have any chance of preventing parking in the prohibited area. This is going to chase some of the business away and Director Rogers doubts that they are going to do that. Director Rogers stated that the owner went back and placed decorative blocks out into the right of way to keep people from parking there; she e-mailed a picture confirming her actions. Director Rogers responded to her e-mail by letting her know that he would have no further comments but would give her feedback after the Board meeting.

Director Rogers stated he wants confirmation from the Board that he is interpreting this correctly and that his position is correct which is that no parking is currently allowed on the east side of West Shafer Drive. If the Board disagrees with this assessment, he would like the Board to provide direction on how he should proceed. Director Rogers stated he wants the Board to tell him that because there is going to be a citation letter issued with a fine assessment with $100 for each car each day one is identified as illegally parked on the east side of West Shafer Drive and by mid-June there will be 5-10 thousand dollars’ worth or fines. That will trigger some kind of legal response from the property owner. Director Rogers stated he wants confirmation from the Board that they support what he is doing, along with confirmation from the attorney that would have to represent this position.

Director Rogers stated that he has spoken to the county commissioners and they have indicated they do not want parking in the right-of-way along the section of road which is the subject of this discussion.

Director Rogers stated that lot 10 is a 50’ deep lot and 54’ wide, which is owned by Blue Door Cottages. A 50’ wide lot, 12’ of which extends to the center of the pavement, which only leaves 38’ of usable space. Out of the 38’, according to the applicant’s survey, there’s another 8’ of right of way which thus reduces the lot to 30’ of usable space. Ordinance requires a 20’ deep space and 24’ isle behind that space to satisfy the parking ordinance. Ninety degree parking cannot fit in a 30’ deep lot. Another factor is that the property line extends along a deep bank protected by a retaining wall. During the remodel of the restaurant, lot areas were covered with gravel. In my mind (Director Rogers) they end up with about 18’ of actual space depth that is not in the right of way. The building is only 5’ away from the right of way on the south end and 7’ on the north end. Lot # 9 has a 46.12’ deep north property line, lot #7 has a south boundary of 50’ deep so none of the subject lots appear to exceed 50’ in depth.

Director Rogers stated that to complicate this matter is the fact that now, the owner of lot 10, which is the Blue Door Cottages (Lakefront Enterprises, LLC), is saying that his parking is grandfathered because the Blue Door Cottages have always used that parking. This is the first time that position has been taken; i.e., that those spaces have been continuously used by the Blue Door Cottages and previous owners. If you go to the sale history of this property, there are three different occasions where the bank owned the property and the property was non-operational. You generally lose any grandfathering rights after a year of non-operation.

Director Rogers stated that in 1980 this property, where the restaurant is, was not zoned for commercial use. That in 1980, the owner came and asked to have fuel sales for the boats and to offer food service and sell clothing. The APC said they did not want them having food or fuel sells on the upper floor and discussed how to condition the rezone approval so that these sales were restricted. Again, the Board failed to take a formal action even though that was their intent. It was suggested to the property owner to include in the lease agreement that you cannot have food or fuel sales on the second floor.

Director Rogers summarized the current parking space lease agreement. Parking spaces will be provided for 180 months commencing on May 1, 2015 and ending April 30, 2030. The lease period will automatically renew for an additional 60 months after the first period and for each 60-month period after unless either party has terminated the agreement. Director Rogers stated that he questioned whether the owner of the Blue Door Cottages had the ability to do a lease agreement because of the bases upon which the BZA had the authority to grant the variance in the first place; i.e., they had to be maintained by the same ownership.

Director Rogers asked the Board what they wanted him to do, if they believe he is taking the right position or not, does he need to back off, or ask both owners to come and meet with the Board?

Attorney Martin stated that she agreed with the position Director Rogers is taking. The next step is to get their remedy, if they truly cannot be parking on the east side, how do they propose to satisfy their parking requirements.

Attorney Martin asked Director Rogers to state his position if the change of ownership voids the variance request. Director Rogers stated that if the Board grants a variance based on a premise and that premise is no longer valid than that particular variance is no longer valid.

Director Rogers stated he thinks Attorney Martin should draft a letter on behalf of the Board that outlines the Board’s position. Attorney Martin reviewed what the Board has stated which is, no parking allowed on the east side, stay all fines that have be assessed up to this date to allow this process to work out, immediately provide the Staff with a parking plan that is in compliance, or alternatively, demonstrate that parking on the east side can be prevented.

A motion was made by Abby Gross to give Attorney Martin time to come up with a letter and review all the documents and submit a letter to the Board for review. Motion was seconded by Chris McWhirter. The motion was carried unanimously.

There being no further business, meeting adjourned at 7:47 p.m.

Respectfully submitted,

__________________________

Joseph W. Rogers, Executive Director

White County Area Plan Commission

__________________________

Prepared by: Erika Martinez

Document Prepared By: White County Area Plan Executive Director Joseph W. Rogers, “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.”

__________________________

Joseph W. Rogers, Executive Director

Area Board of Zoning Appeals