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BZA MEETING

September 19, 2019

The White County Area Board of Zoning Appeals met Thursday, September 19, 2019, at 6:00 p.m. in the Commissioners’ Meeting Room, Second Floor, White County Government Center, Monticello, Indiana.

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

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

Visitors attending were: Dan Sambrooks, Valerie Eichenberger, Bob Wrede, William Eichenberger, Abby Funkhouser, Travis Funkhouser, Vicki Mahoney, Betty Jones, Gary Mahoney, Bobbie Boehlke, Larry Andrews, Nora Andrews, Nanette Rebar, Barry Sawyer, Jennifer Spires, Cheryl Limanni, Phil Limanni, Joyce Spogis, Frank Spogis, Donna Whitaker, Lori Whitaker, Kurt Whitaker, Jim Foley, Chris Gervais, Brad Gervais, Robert Hoefler, William Misenheimer, Shelly Bird, Steve Buschman, Thomas Roth, Jackie Lucas, Carl Lucas, Chastity Robledo, Robert Hadley, Seth Whitaker, Maria Robledo, David Robledo, Jill Guingrich, Jeff Guingrich, Brenda Barnard, Brenda Coff, Stephanie Roth, Dennis Sparks,

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

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Minutes:

There was a motion by Stan Minnick and a second by Abbey Gross to approve the meeting minutes and finding of facts dated August 15, 2019 as written. Motion carried unanimously.

Note: At the introduction of each case hearing, Director Rogers entered all documents provided to the Board in their pre-meeting packets, the Staff Report and all other file documents into the official record of the meeting. All documents entered into the record along with all hearing testimony and record ballets will be used in establishing the Findings of Fact for each hearing.

Note: Director Rogers informed the applicants, before the start of the meeting, that the Board is a five-member Board but is now a four-member Board for the time being. Director Rogers stated that with the four-members present it is considered a full Board and all requests will be heard.

Variance #3000

Director Rogers provided the Board with an overview of the variance requests, reviewed the Staff Report and supplemental information. He then displayed for the Board and the audience a series of photos he had taken at the site showing the area subject to the request along with the surrounding area to the property.

Director Rogers stated that the special exception associated with this request (File #2999) cannot be heard unless the variances are granted and that is the reason the variance is being heard first. The applicant applied for the Special Exception and the Staff, upon review, recognized the site would need to apply for variances resulting in variance Petition #3000.

The property is located at 3885 E 1st Rd in Monticello, it is currently zoned R-2. The property is accessed via a narrow gravel, dead end road (approximately 14’ in width) subject to a 5 mph speed limit, with an approximate 16’ right-of-way bordered by mature trees. The property lies in an R-2 district, a Vacation Rental by Owner (VRBO) is allowed only upon approval from the Board. Director Rogers stated that a Special Exception is a designation that comes from the legislative bodies for specific activities. The reason they assign special exception to certain activities is because they believe that those activities, although compatible with the zoning district, may not be compatible with a specific site or the surrounding area. A Special Exception is a use by right, only the right is contingent upon approval by this Board.

Director Rogers stated that the request has been subject to public input. A call report log was generated on 8/15/19 and contains 14 communications. There was a lot of concern expressed over the impact the request will have on the neighborhood. The people that called live in, near or around the area and feel that the area is a nice, quiet and typical residential neighborhood that they wish to protect. These individuals feel the request will go against that desire and all public communications received expressed opposition to the requests. Director Rogers stated that all the letters submitted were provided to the Board in the pre-meeting packet. Three additional communications were submitted by e-mail after dispersement of the packets to the Board; the e-mails came from Lena Sinclair, Ed & Judy Paoli, Robert Dean Hadley and Betty Hadley. The additional e-mails were read into the record by Mr. Rogers.

Director Rogers stated the survey demonstrates the two issues at hand. The first addresses a setback variance for vacation rentals. The legislative body determined that the proper buffering from a vacation home or accessory building to an abutting property line is 50’ on each side. The west side has a buffer of 12’ and on the east side 15’. The applicant is asking for a 38’ variance on the west side and a 35’ variance on the east side. The second issue is a variance from the parking requirements. The parking requirement for a VRBO is based on the number of bedrooms/sleeping accommodations. The requirement for the subject site is 4 spaces. The standard space is 9’ by 20’ with a 24’ wide rear drive. For the subject site, the parking area would need to be 44’ wide by 44’ deep to meet all requirements (including ADA requirements). The survey shows a very large restriction in depth and width and the applicant has requested a variance to reduce his parking requirement to zero. The applicant has provided an alternative parking area for the Board’s consideration.

Abbey Gross asked Director Rogers whether the applicant not paying association dues and having covenants and restrictions in the deed is something the Board would enforce? Director Rogers responded that the Board has no jurisdiction over association dues and the Board does not have authority over private covenants and restrictions, those are to be dealt with and enforced by the property owners.

Randy Conwell asked Director Rogers if ADA parking is set up by the county or federal? Director Rogers answered that there are dual sources being used, federal standards and zoning standards. The Area Plan office enforces zoning standards. In Director Rogers’ opinion, nothing the Board decides can alleviate a property owner from the federal ADA requirements.

Chairman Dennis Sterrett asked Director Rogers to explain the wavier for property owners that are closer than the 50 ft. Director Rogers answered that when the zoning ordinance for this section was created that there was an understanding that not all vacation rentals are created equal and there are frequent occasions where people use properties for a vacation rental on a small lot. They may only rent to one or two people at a time and the neighbors have no issues. The legislative bodies decided to grant the neighbors the opportunity to have a say so as to whether the buffering requirement was necessary or not. A property owner can go to each abutting neighbor and ask them to waive the requirement; if it is waived, the office does not hold the VRBO operator to the requirement. If either of the abutting neighbors do not sign the wavier, the applicant may apply for a variance to waive the requirement from the Board.

Travis Funkhouser, applicant, stepped to the podium to represent his request. Mr. Funkhouser stated that over the last few years he has become involved with investment properties. That is how he came upon the 3885 E. 1st Road property. He has owned the property for about 3 or 4-years and has remodeled the home from top to bottom. Then he tried to sell the home, and after two years into it there was not a single offer. With mid-summer of 2019 approaching he decided to try something different and start a vacation rental on a weekly basis. Mr. Funkhouser stated he was unaware at the time he needed a special exception and apologized to the Board. One thing he did know was that he was required to pay the White County Inn Keepers’ tax, which he stated was done prior to renting the property out. Mr. Funkhouser stated he feels like he should be permitted to have the property as a vacation rental. He has taken into consideration the value of the neighbor’s homes and the property values along with his own house. Mr. Funkhouser addressed the statement in one of the letters received that residents were shocked to see cars coming and going without any prior knowledge. Mr. Funkhouser stated that before he had one vacation rental, he sent an email to everyone in the neighborhood informing them of his intent and if they see an increase in traffic that would be why. He has created several rules and regulations when it comes to renting the house. This property means a lot to him and the last thing he wants is to have someone come in and tear it up. He is a Monticello resident and if there are any issues that come up with the house, he is available. Mr. Funkhouser stated he has told his neighbors to call him if there are any issues as they have his number. If there is something going on that is not supposed to, it is his right to go over there and make it stop or have them leave. Mr. Funkhouser stated he was running this without a proper permit (special exception use approval) and things that were done to correct the problems were done out of respect for his neighbors. Mr. Funkhouser stated that at the Home Owners Association (HOA) meeting a ladder was in need and he provided a ladder and that was accepted as part of his dues though the balance of the dues were not paid because it cost him money to apply for the variance and special exception. He stated he has offered to pay extra in dues for the up keep of the road since the neighbors have concerns of the road being used too much. Mr. Funkhouser stated that there is a shortage of money in the HOA even with all the neighbors paying to get projects done. Mr. Funkhouser stated he has cameras on the property that he can speak to and he will be able to see if there are more people than scheduled and put a stop to it. Anything improperly going on at night after hours he has the option to pick up on camera and tell the renters to stop. Mr. Funkhouser stated there is max of 8 people that can stay at the rental and he is considering making it a max of 6 adults. With 6 adults there isn’t going to be many kids and he does not want parties or events going on at the rental. Mr. Funkhouser stated he has posted the rules and regulations on the property so the renters know what is expected of them and what rules need to be followed. He stated that he has looked into the HOA and that there is no record of the HOA being legal and has addressed his neighbors that he will not abide by an illegal HOA. Mr. Funkhouser stated he does not have to pay the fees because there is no legal biding HOA, but he is happy to do so and has paid for past years. He stated that the neighbors were contacted and told that he would be doing a VRBO until it sells and that the VRBO was not something that would be long term.

Brenda Barnard, property owner at 3949 E 1st Rd, stepped to the podium to express her concerns. Ms. Barnard stated that she is a permanent resident not a weekender or a vacationer. She stated she has kept an opened mind but since the rental has been going on, she has seen traffic go down the private drive at 40 mph car, boats and trucks. Ms. Barnard stated that with 3 or 4 cars in the drive there is a big encroachment and she can’t get around the vehicles when pulling her grandkids in a wagon. She stated she has had beer cans, bottles, towels and trash thrown in her pontoon because Mr. Funkhouser’s slip is right next to hers. She has had trash thrown in her front yard and seen such in her neighbor’s yards. Ms. Barnard stated that the trash is not from people who live there because they are trying to keep it a nice community. She stated a vacation rental is not good for the private lane because people who are going there to rent are not respectful to the homeowners and property owners that come down on weekends to enjoy their property and families. Ms. Barnard stated that one weekend she walked down to the swimming area and there were young children unattended in the private swimming area.

Jennifer Spires, property owner at 3902 E 1st Road, stepped to the podium to express her concerns. Ms. Spires stated that 3885 E 1st Road is a property that is part of a neighborhood of 11 homes that was developed in the 1960s. There is a privately-owned narrow gravel drive that runs from West Shafer to the lake front and the property owners have easement right to that drive to gain access to their property. The owners do not have the right to use the circular drive located at the end of the gravel road for any kind of use. The road dead-ends and can be problematic if drivers are unaware the road stops. Ms. Spires stated that it can be quite challenging to back up a steep winding gravel road with those unfamiliar with the area. Nearly all of the lots on the lane are all similar to the property on 3885 E 1st Road, the lot was intended to be only large enough to construct a small seasonal family cottage. Ten neighborhood homes, including this one, share the use of a dock with 10 dock slips and a swimming area. In summary, the home owners of the lane have a very small privately-owned lot and share a great deal of common space. Rental owners do have access to that shared common space. Ms. Spires stated that there was no reason provided for necessitating these variances on the application. The Staff report states the requests are driven by the applicant’s desire to continue to use the property as a vacation rental but within compliance with local ordinances. Operation of this vacation rental property at this location as a result of any variances granted would result in an economic gain for the applicant. Mr. Spires stated she is speaking tonight to oppose granting either of the variances. The code defines a variance, as a modification of an ordinance and its requirements to assure that no property, because of special circumstances, shall be deprived of privileges enjoyed commonly by other property in the area. 3885 E 1st Road is a lot that should not be able to operate a rental without the abutting neighbor’s permission due to its small size. Ms. Spires stated that the size of the lot is not a special circumstance because nearly every lot on the lane is of similar size. Therefore, none of the surrounding property owners are able to operate a vacation rental without abutting neighbor permission and that there are no other neighborhood homes of similar lot size enjoying the privilege of renting a vacation rental. The ordinance reads that the building may not be located within 50 ft of the abutting neighbor’s property line. The home is located 12 ft for the property line on the west and 15 ft from the rear and opposite side. So, the variance request he is asking for is a 70% reduction in that setback and 76% reduction in the opposite side setback. It is an enormous short coming of the lot size for the proposed use. The applicant is also asking to waive all parking requirements. The Staff report stated that the applicant would need 4 parking spaces with one being ADA compliant. Ms. Spires stated she has witnessed on multiple occasion where cars, from the renter, were parked three across two deep and a small trailer parked in the mulch area next to the sewer grinder. After requests to keep cars out of the right of way were brought to Mr. Funkhouser, there was one guest who decided to park in the grass area in front of the home. Ms. Spires stated the gravel area the applicant has available for parking is not large enough to accommodate four vehicles. She has witnessed cars trying to back out of the parking area hitting large boulders on the abutting property because there is not enough space for the turning radius that is needed with so many cars squeezed in, it is simply too small to safely accommodate a few cars. Ms. Spires stated there’s a discrepancy on the parking plan submitted from the applicant and that shown on the survey, she asked for that discrepancy to be reviewed. The parking plan submitted by the applicant for the special exception shows 30’ and the survey shows a different dimension. The location of this property is not typical for a vacation rental home. It has a large amount of shared common space, very small lot sizes, the neighbors are going to be forced to tolerate much larger groups of people in the shared area, the road will have excessive wear and tear with the increase of traffic, the community maintains the shared dock and it will also cause excessive wear and tear as boats operated by people of unknown skill level dock into a boat slip. Ms. Spires stated that granting of this variance would negatively impact the neighbors. For these reasons, the vacation rental would be extremely injurious to the general welfare of the community, the use and the value of the adjacent properties are going to be substantially impacted in an adverse manner and the use will essentially alter the character of the surrounding area. Ms. Spires believe the requests are solely based on economic gain and do not believe the applicant is being denied any privileges that nearby owners possess due to any unique feature of this property. It is her assertion that the applicant has not met the burden of proof to demonstrate a practical difficulty and should not be granted the variance.

Cheryl Limanni, property owner at 3877 E 1st Road, stepped to the podium to express her concerns. Mrs. Limanni stated she has owned the property for 11 years and that her house is directly west of the subject property. She presented the Board with the special warranty deed for the subject property and hers to show the Board that both state the property is subject to all covenants, restrictions, conditions and easements. She also presented the Board with a set of photos taken of the cars parked at the vacation rental. Mrs. Limanni is opposed to any variances being allowed for this business to continue to run in the small community of seasonal and permanent single-family homes. Mrs. Limanni then expressed her concerns over the roads, piers, speeding, safety issues, upkeep, parking and several other concerns that Ms. Barnard and Ms. Spires had previously mentioned.

Nanette Rebar, property owner at 5032 N Frank LN, stepped to the podium to express her concerns. Mrs. Rebar stated she is concerned with the parking arrangements and the noise that comes from the rental property. She mentioned that there have been people from the rental trespassing onto her property and fires burning unattended throughout the night.

Maria Robledo, who’s grandma is the owner of 3913 E 1st Road, presented the Board with pictures taken of the subject property where vehicles are parked blocking the lane, using other property owners’ driveways to turn around, and vehicles parking in the grass where there is no gravel. Ms. Robledo stated she does not feel safe in her own home with a rental property in the neighborhood. She has also witnessed two families tie a rented boat to someone else’s lift because the boat was too big to fit into the designated spot. It caused damage and no one was notified of the damage. Ms. Robledo stated people have taken out dead and live mussels, which are endangered mussels that are only known to Lake Shafer and Lake Freemen and kept them for the whole day, which is illegal to her understanding.

Frank G Spogis, property owner at 3858 E 1st Road, stepped to the podium and stated that the lane is a private lane and the circular drive mentioned is his drive, which no one has access to.

Barry Sawyer, property owner at 3923 E 1st Road, stepped to the podium and stated he has the same concerns as everyone who has spoken before him and requests both variances be denied.

Travis Funkhouser stepped back to the podium to respond to all the concerns from the homeowners on 1st Road.

Chasity Robledo presented the Board with a picture of a fire left unattended at the vacation rental. Ms. Robledo stated her safety concerns of having a vacation rental in that neighborhood and request the variance be denied.

There being no more citizens in the audience to speak in favor or against the request, Attorney Martin passed out the ballots.

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

Variance #3000 side setback – 4 votes cast; 0 to grant; 4 to deny;

Petition DENIED

Variance #3000 parking requirements – 4 votes cast; 0 to grant; 4 to deny;

Petition DENIED

Special Exception #2999

Director Rogers stated that with the pervious variance #3000 being denied the Special Exception #2999 is no longer considered valid because the application and supporting documents do not meet the standards which are required for a VRBO special exception use.

Variance #3001

Director Rogers stated that there was one public communication received by the Staff pertaining to this petition; the communication came from Patricia Eden and came in after the packets were sent to the Board. Ms. Eden called the office and stated she had no concerns with the variance request.

Director Rogers then provided the Board with an overview of the variance requests, reviewed the Staff Report and supplemental information. He then displayed for the Board and the audience a series of photos he had taken at the site showing the area subject to the request along with the surrounding area to the property.

William Eichenberger, applicant, stepped to the podium and asked if his two neighbors could speak before him as they had to leave.

William Misenheimer and Roberta Rauch both spoke in favor of the variance request. Mr. Misenheimer is the neighbor to the south and Ms. Rauch is the neighbor to the north who also sold Mr. Eichenberger the part of land where he is intending to build the detached garage.

William Eichenberger showed the Board on the survey where the wastewater easement will be located. He stated he had been working with the city for a while to allow the easement through his property. His plans were to build a long narrow building to store his personal property but with the easement he had to change his plans and build a squarer building with a height to peak of 30’.

There being no other citizens in the audience to speak in favor or against the request, Attorney Martin passed out the ballots.

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

Variance #3001 height allowance – 4 votes cast; 4 to grant; 0 to deny;

Petition GRANTED

Variance #3002

Director Rogers stated that currently the applicant has two separate buildings, a principle structure and an accessory structure. The applicant is wanting to accommodate additional living space and plans to attach the garage to the house which will create one principle structure. The reason the Board is considering the side setback for the accessory building that is already established is because once it becomes part of the principle structure it is subject to different developmental standards and the location can be questioned as to whether or not it is appropriate by the Board.

Director Rogers then provided the Board with an overview of the variance requests, reviewed the Staff Report and supplemental information. He then displayed for the Board and the audience a series of photos he had taken at the site showing the area subject to the request along with the surrounding area to the property.

Daniel Sambrooks, applicant, stepped to the podium to represent his request. He presented the Board with pictures of what the proposed construction would look like when complete. His plans are to bring the property up to standards and make it a nice home where he can retire.

Carl Lucas, property owner at 8079 N West Shafer Dr, stepped to the podium and stated he is in favor of the variance.

There being no other citizens in the audience wishing to speak in favor or against the request, Attorney Martin passed out the ballots.

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

Variance #3001 front, rear & side setback – 4 votes cast; 4 to grant; 0 to deny;

Petition GRANTED

Variance #3003

Director Rogers stated that the Board was provided with a copy of a letter and pictures of the subject property and the surrounding area submitted by Larry Andrews. Director Rogers also stated that the Board was presented with a document that asks for some conditions the Staff would like to be attached to the Board’s approval. Director Rogers stated that there were three community communications that were not provided to the Board in the pre-meeting packets of which two communications came from Larry Andrews and one from Jill Guingrich. Director Rogers read those communications into the record.

Director Rogers provided the Board with an overview of the variance requests, reviewed the Staff Report and supplemental information. He then displayed for the Board and the audience a series of photos he had taken at the site showing the area subject to the request along with the surrounding area to the property

Chairman Dennis Sterrett asked about the 15’ easement that is shown on the survey and why lot 1 in the Hickory Subdivision plat shows lot 1 as a 133’ wide lot and the survey shows 166’. Abbey Gross then asked if it’s possible that everything is not right on the site plan. Director Rogers answered that the office has the ability to confirm that the setbacks as provided will still be retained once the 30’ discrepancy is clarified. Director Rogers stated the Board can proceed and make the approval conditional upon clarification of the survey. The office would be responsible for confirming what happened to the 30’ and that the easement setbacks shown will still be maintained as shown on the plat.

A motion was made by Chairman Dennis Sterrett to make the approval contingent on the verification of the plat and that all setback standards still be met. The motion was seconded by Abbey Gross. The motion was carried unanimously.

Kurt Whitaker, applicant, stepped to the podium to represent his request. Mr. Whitaker presented the Board with pictures of his property and where the construction will be. He stated that the building will be facing towards the south and will not affect Hickory Ridge Ct. The garage doors will be facing to the south towards Quail Run Ct and the driveway to the north can be completely blocked off. Mr. Whitaker stated that the only reason there is all the gravel located on his property is because he owns multiple large vehicles so he stoned the yard for parking of the vehicles; now, with the detached garage, he can bring all those vehicles inside the building and out of the driveway. Mr. Whitaker also presented the Board with three letters from neighbors in support of the variance request. The letters were from Pete & Nicole Garling, Chad & Michelle Henricks and John James.

Larry Andrews, property owner at 6058 E Hickory Ridge Ct, stepped to the podium to express his concerns with the variance request. Mr. Andrews read his letter that he submitted to the Board and also stated his concerns with the driveways facing Hickory Ridge Ct. Mr. Andrews stated in his opinion the proposed building will bring in more unnecessary traffic. He also expressed concerns as to whether the building will be used for a commercial purpose.

Jeff Guingrich, property owner at 6185 E Hickory Ridge Ct, stepped to the podium and expressed he is neither for nor against the request he just wants clarification on how Mr. Whitaker will access the proposed building and his dwelling.

Thomas Roth, property owner at 6132 E Hickory Ridge Ct, stepped to the podium and asked for clarification on how he or his neighbors will know what the decision will be once the extra 30’ the survey shows is clarified. Mr. Roth also asked if Mr. Whitaker would be able to keep the two driveways to his dwelling and a driveway to the proposed building or would he have to block off one of the driveways to the dwelling.

Jill Guingrich, property owner at 6185 E Hickory Ridge Ct, stepped to the podium and stated that her only issue with the request is about the driveways. She stated that if both driveways will be facing Quail Run Ct, she has no concerns.

Vicky & Garry Mahoney, both stepped to the podium to oppose the variance request. Mr. & Mrs. Mahoney stated concerns that property values will decrease with a building that size being built in a residential neighborhood.

A motion was made by Abbey Gross to attach the condition that the driveways accessing the property are brought into compliance with all County Zoning Regulations as written by the Staff before any type of CO can be issued. The motion was seconded by Chairman Dennis Sterrett. The motion was carried unanimously.

There being no other citizens in the audience to speak in favor or against the request, Attorney Martin passed out the ballots.

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

Variance #3003 height allowance – 4 votes cast; 3 to grant; 1 to deny;

Petition GRANTED

Other Business

Director Rogers asked the Board to make a decision on when the Liberty Landfill special exception should be heard. He stated that he informed Liberty Landfill they would be heard when there is no other business on the agenda. Once the Board makes a decision, he then will notify Liberty Landfill on the hearing date and the deadline to submit all documents.

A motion was made by Abbey Gross to have the meeting on November 21st, 2019 if there is no other business, if there is business, an additional meeting will be held on December 5th, 2019 to hear the Liberty Landfill special exception. The motion was seconded by Chairman Dennis Sterrett. The motion was carried unanimously.

There being no further business, Abbey Gross motioned to adjourn the meeting, with a second from Stan Minnick. Motion was passed and meeting adjourned at 9:44 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.”

__________________________

Erika Martinez

Secretary - Area Board of Zoning Appeals