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BZA MEETING

November 21, 2019

The White County Area Board of Zoning Appeals met Thursday, November 21, 2019, at 6:00 p.m. in the Commissioners’ Meeting Room, Second Floor, White County Government Center, Monticello, Indiana.

Present: Dennis Sterrett, Randy Conwell, Abbey Gross and Jeff Guingrich

Absent: Stan Minnick

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

Visitors attending were: Billy Rood, Lisa Disbrow, Chris Shelmon, Amanda Cosgray, Alex Cosgray, Christi Perry, Retta Zerez, Dan Erni, Mike Mahaffey, Chris Rubak, Dale Hoekstra, Frank Boardman, Jim Davis, Greg Hauser, and Jeff Hughes.

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 Randy Conwell and a second by Abbey Gross to approve the meeting minutes and finding of facts dated October 17th, 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 completed ballots will be used in establishing the Findings of Fact for each hearing.

Note: Director Rogers informed the applicant, before the start of the meeting, that the Board is a five-member Board with only four scheduled for attendance at this meeting. The petitioner must obtain 3 votes in favor in order for the petitioner’s request to pass. Since there is not a full Board present, the applicant has the right, to elect to have their hearing continued to next month in hopes for a full Board. The applicant, via their attorney Chris Shelmon, elected to be heard by the four-member board present.

Variance #3009

Director Rogers reviewed Staff Exhibit B with the Board and stated that a special exception use process is different than a variance request process. A variance request requires the applicant to demonstrate a necessity to deviate from ordinance standards and regulations, in a special exception use, the applicant is only required to show compliance to ordinance standards and regulations. If a special exception use is rejected, the Board has to establish the reason for rejection. Director Rogers stated that in the case of special exception uses, the legislative bodies provide criteria which must be met in order to warrant a special exception use approval. These criteria fall into two categories, subjective and objective. Objective criteria are those specific standards that must be met, measurable standards. The applicant is responsible to demonstrate to the Board that they meet all the objective criteria specified in the Zoning Ordinance. Subjective criteria are different. Subjective criteria pertain to the criteria and standards which must be considered by the board but which are not measurable in nature. Courts have recognized that, in those cases, the Board has a wide latitude of discretion in determining whether or not those criteria are satisfied. However, the Board cannot be arbitrary or capricious in their decision making. Thus, to decide negatively on a subjective standard, the Board must provide substantial evidence to support their position.

Director Rogers again informed the Board that the responsibility of the applicant is to demonstrate compliance, if compliance is demonstrated the Board has no legal basis for rejecting the petition.

Director Rogers asked the Board to attach a condition to the special exception use request. The condition being that the properties have to be brought under single title ownership and become a single parcel vs as currently structured as multiple parcels. Thus, should the special exception use be re-approved to cover the proposed expansion, the re-approval would be conditional upon the applicant causing title for each parcel covered by the re-approval to be under exact and common ownership and then combining such parcels into a single parcel, using Area Plan Department process and procedures, within ninety days of special exception use approval by this Board. Failure to execute these steps within the ninety-day time frame provided, shall cause the special exception use re-approval to be terminated and reapplication seeking essentially the same relief will not be allowed within one year from the date the Board takes official action.

There was a motion by Abbey Gross and a second by Randy Conwell to attach the condition provided by the Staff (see file for Executive Director memo dated November 13, 2019). Motion carried unanimously.

Director Rogers stated the existing landfill operation has approximately 9 years of life remaining at current incoming tonnages. The proposed 87-acre expansion to the north and the 27 acres to the east would provide approximately 18 years of additional disposal capacity. A primary function of zoning law is to protect residential areas from nuisances and non-compatible uses through separation, which may include landscaping, buffer areas and developmental standards. In the case of a landfill facility, the Area Plan Commission and the legislative bodies determined that a landfill should be submitted to critical review through the special exception use process and those bodies provided criteria to facilitate the BZA in the review process. In the case of a landfill use, the applicant is responsible to demonstrate compliance to all the criteria requirements of Chapter 3, Section 3.16, Subsection 3.16.2 Category 2 of the White County Indiana Zoning Control Ordinance.

Director Rogers 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.

Lisa Disbrow stepped to the podium to represent the request. Lisa Disbrow stated Liberty Landfill currently owns a total of 604 acres with a current disposal footprint of 169 acres. The landfill is seeking expansion to the north and east that is contiguous to the current property. The proposed expansion will be designed, constructed, operated and maintained in the same manner as the existing landfill and will incorporate the environmental protection systems and operational practices in accordance with IDEM regulations. As required for all landfills in the State, these requirements include a minimum of 30 years of post-closure maintenance and monitoring once the landfill closes, including the funding of required financial responsibility to perform the post-closure activities and maintenance in the event of operator default. Lisa Disbrow stated the requirements were an item that came up in the previous hearing and she wanted to make sure to highlight what Liberty Landfill is required to do during duress.

Lisa Disbrow stated that as a result of the previous rezone hearings, Liberty Landfill committed to several items. Those included traffic control, installation of speed bumps, for drivers to comply to all applicable laws, a tarp inspection program that has already been implemented, a litter control program that has been agreed to and launched, road maintenance, property value guarantee, well testing of residential wells, and community environmental education programs (See file for Written Commitments).

Director Rogers informed the Board that the County Commissioners and Liberty Landfill came to an agreement of commitments which are enforceable as a civil zoning violation if violated. The Commitment Agreement is structured to allow enforcement by either the Area Plan Executive Director or the County Environmental officer.

Lisa Disbrow stated the proposed expansion will incorporate the same environmental protection systems and operational practices as the existing landfill. The environmental protection system will protect both groundwater and surface water in the river area. This system consists of a liner system, leachate collection system, final cover system and surface water management system. Liberty Landfill’s surface water management, which consists of a series of runoff ditches, channels and sedimentation basins, manages and controls surface water. In addition to the groundwater monitoring required to be performed as part of the proposed expansion, Liberty Landfill will implement a residential well testing program that will test neighboring wells in the vicinity of the landfill. The program will also ensure the groundwater resources in the river area are protected.

Liberty Landfill will also patrol and inspect the Carmichael Ditch for any litter along the area. Liberty Landfill is looking at installing a six-foot-high litter fence along the length of the Carmichael Ditch upon receiving all necessary approvals for the fencing from the county.

Jeff Guingrich asked Lisa Disbrow to clarify if the Landfill will be operable for 18 years total, including the 9 years of life the landfill has remaining, or 9 years remaining plus the 18 years for a total for 27 years of additional disposal capacity. Jeff Guingrich also asked if the Landfill will increase the tonnage taken in once the expansion is approved causing the life of the landfill to decrease. Lisa Disbrow replied that with the expansion the landfill will have a total of 27 years left total and the tonnage intake is planned to remain constant which will preserve the life capacity of the landfill.

Randy Conwell asked Lisa Disbrow about the inspection of trucks and tarps. Randy Conwell stated he was at the site and followed a truck out of Liberty Landfill that had trash coming out from under the tarp. Lisa Disbrow stated there’s an area designated in the facility where drivers are asked to clean out the vehicles before leaving and to conduct a tarp inspection. There’s also a litter log and as part of the commitments there are inspections done on the truck route and when trash is picked up its noted in the litter log and those are available for the county inspector with intentions to provide a copy of the litter log to the Area Plan Department.

Jeff Hughes, Christy Perry, Frank Boardman, and Amanda Cosgray were present at the meeting to express concerns and ask questions. The public’s comments and questions about the special exception use included the following:

· Why the $5,000 education program is not offered to other groups besides schools;

· The current truck route is not wide enough to accommodate the large garbage trucks and there are trucks speeding on the designated route;

· If the Board has received specific details on the commitments Liberty Landfill entered into in the previous rezone meeting;

· Specifics on the property value guarantee program;

· If Liberty Landfill would consider increasing the property value program to more than a mile;

· Concerns that in 2005 the landfill was going to last 35 years and now it only has 9 years of life left;

· What the process for the property value guarantee program will be and how will the property owners know when the program starts;

Billy Rood stepped to the podium and stated he is the care taker of the Boy Scout Camp located west of the landfill. He stated that the landfill has contributed to the camp in many different ways and has noticed that there is less trash coming onto the camp since the meeting when the landfills commitments were established.

Lisa Disbrow and Director Rogers responded to the concerns and questions from the public. Lisa Disbrow and Director Rogers responses were as followed:

· The education program is available to any charitable organization within White County;

· The landfill welcomes enforcement of all traffic laws and wants all truck drivers to comply with all traffic laws;

· Director Roger responded that the commitments were an agreement between the County Commissioners and Waste Management. Enforcement would be up to the County Commissioners to work with the Area Plan office or the Environmental office or both to ensure that the steps that they committed to are implemented and sustained;

· The property value guarantee program will become effective when the landfill receives their permit for expansion from IDEM. The property owners will then have 90 days to enter into agreement with Liberty Landfill. The agreement will provide a 10-year coverage term, concurrent with the host agreement. If a property owner sells their property during the 10-year term below an agreed upon appraised value, Liberty Landfill is required to make up the difference between the selling price and the appraised value. If a property owner cannot sell their property, Liberty Landfill will purchase the property at the appraised value;

· Director Rogers responded that the property value guarantee program that covers properties within a mile of Liberty Landfill cannot be modified by the Board of Zoning Appeals. The commitment was established with the County Commissioners and would have to go back to the County Commissioners in order to be changed;

· The landfill will mail out letters to property owners notifying them to sign up for the programs. The property owners can then choose to sign up for both the property value guarantee and the well testing program. Lisa Disbrow and other members of Waste Management stated that notification will be given to the deeded owner in form of certified mail.

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:

Special Exception Use #3009 – 4 votes cast; 3 to grant; 1 to deny;

Petition GRANTED

Other Business

Director Rogers asked the Board to decide on reserve dates in February that all would be available to attend, in case there is multiple variance requests for the scheduled January meeting. With the reserve dates the office can manage the application that are submitted before the filing date of December 23, 2019 and notify the applicants of the reserve dates if necessary.

The Board decided on two reserve dates February 18, 2020 and February 27, 2020.

There being no further business, Abbey Gross motioned to adjourn the meeting, with a second from Jeff Guingrich. Motion was passed and meeting adjourned at 7:12 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