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The White County Board of Zoning Appeals met on Thursday, January 22, 2009 at 7:30 p.m. in the Commissioners’ Meeting Room, Second Floor, County Building, Monticello, Indiana.

Members attending were: Gerald Cartmell, David Scott, Charles Mellon, C. David Hall and David Stimmel. Also attending were Attorney Kevin Riley and Director Joe Rogers.

Visitors attending were: Rodney & Opel Martin, Lori Bussell, Peggy Pyle, Nate Pyle, Bradly N. Denton, Deborah J. Denton, Don Ward, Kay Harrison, Gilda Hickman, Terry Smith and Ben Woodhouse (Deputy).

The meeting was called to order by President David Stimmel and roll call was taken.

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#2795 Harley D. Klopfenstein; The property is located on 46’ off the E/S Lot 20 in Fox & Dibells Addition, in the Town of Wolcott at 405 W. North Street.

Violation: None

Request: He is requesting a 7’ East side setback variance to add a room addition and a 22’ front setback variance to bring the home into compliance.

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#2797 Lake Shafer Christian Center; The property is located on To be known as Lot 1 in LSCC Subdivision, Part W ½ 21-27-3, north of Monticello at 1765 N. West Shafer Drive.

Violation: None

Request: They are requesting a 35,681 sq. ft. lot size variance so the property can be subdivided.

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#2798 Cathy Russell Rentals, Inc.; The property is located on Lots 10-26 in Meadowbrook Subdivision #2, South of Monticello, East of Freeman Road and on the Northwest corner of Chalmers Road and Sheridan Road.

Violation: None

Request: She is requesting a variance for the width and the lot sizes for lots 10-26. This is so the subdivision can be sold as individual lots as platted.


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Appeal #7 Pride Properties, LLC - Appellant; Appellants are appealing from a decision made by the Executive Director in interpreting Rules 4.5.2, 4.5.3 and 4.5 with regards to the Applicant’s request that Lot One (1) in Frank’s Wayside Lodge Subdivision, Liberty Township, White County, Indiana, is a grandfather building lot and that a residence can be constructed on said lot.

 

We’ve got a little bit of a different structure tonight than what we’ve had before so you’re going to have to bare with me a little bit as we go through this. Ordinarily we would be approving minutes but there have not been any minutes presented to the board so we won’t be doing that. Um we are going to ask if there is any new business…anything from you Joe…that Joe is aware of?

Joe stated, Not that I’m aware of.

I have some, one of the things we want to get ready to do at the next meeting for the boards attention would be to set a bi laws and uh, I think in a conversation with Mr. Riley in the last couple of days would be to ask him to put together a set of recommended bi laws by the next meeting. Is that right Kevin we talked about how to go about that?

Kevin Riley stated, it would be by-laws to be considered by this board.

To be considered by the board

Kevin Riley stated, or for adoption at the next public herring.

At the next public herring….so I guess what I’m requesting is a motion from the floor to instruct the attorney to do just that.

Motion was made…

Motion seconded…

Motion was carried.

We are instruction the attorney to put together a list of proposed by-laws that we can study and then have a public herring on. Um what else was…. Oh yea the Herman building permit or improvement location permit. Kevin you mentioned something?

Kevin Riley stated, Just for your information all of you may remember about a month or month and a half ago there were a series of several meetings involving some improvement location permits for some garages for a petitioner applicant by the last name of Herman that this board made a decision on those permits at the December 9 meeting. After that meeting the Area Plan Commissions staff has since received two complaint forms from a Mr. John Powers and Mr. John Hannock. Both of those individuals were present at some if not all of the area plan and BZA meeting and had opportunity to voice their objections at those meetings. It is my opinion in reviewing their complaints that their complaints are basically a regurgitation of what was stated at the meeting, however I do think these individuals deserve a response to their complaints so it was my thought that the proper response would to send them a letter that their complaint has been received, that they had the opportunity to object at a public herring and did so and that their remedy for appealing a board of zoning appeals decision is to file a writ or file a petition with either the circuit or superior court of White County so rather than to have those complaints heard again by this board so….

Commissioner stated, so you will send that letter?

Kevin Riley stated, I would prepare that letter and I am asking direction from this board as to what you want me to do in response to those complaints.

Commissioner stated, I make a motion that you do just what you said there if that’s your advice.

Commissioner stated, I’ll second that

Commissioner stated, all in favor say I……motion carried….Kevin’s going to take care of that. Other new business tonight would be reorganization. That would mean re-electing the president of the board of zoning appeals and the secretary of treasure and what other offices were there…vice president, vice president and secretary of treasure.

Motion was made to keep the president the same as it is, the vice president be Gerald Cartmel and that the secretary of treasure be Dave Scott.

Dave seconded

Commissioner stated, all those in favor raise your right hand….ok officers are established.

Commissioner stated, are you aware of any continuances or withdraws Joe that we had if any?

Joe stated, I’m not aware of any.

Commissioner stated, Ok, alright um I want to talk a little bit about procedures here tonight and these may be a little bit different than what we’ve heard before but each case will be heard following a motion and a second from the board. That means there are only 4 or 5 cases here tonight so it should go relatively quickly. All I ask the staff which would be Mr. Rogers here to see if they have any findings on each case and he will report out those findings. Following the staff report we will ask the petitioner to stat his/her case after which anyone wishing to support the petitioners request for a variance or special exception will be asked to come forward. After hearing from the petitioner and those speaking on his/her behalf we will be asked those speaking against the petitioner to present their argument. The petitioner will then be allowed to rebut argument raised by those in opposition to his/her petition. Following the rebuttal, the board may with to ask questions of the petitioner supporters and opponents of the petitioner and of the staff. The staff will have the opportunity at this time to make any necessary clarifying comments. We will then vote by using a prescribed ballot. There are 3 voted required to make any decision on the board another words since there are only 4 of us here at this point in time you would have 3 of those 4 votes for anything to take effect. In the absence of any 3 votes for or against the petition of automatically continued to the next meeting so if it ends up being split 2 to 2, were going to continue it to the next meeting automatically. We would ask you to do a few things when you come up and testify at the microphone. State your name and address for the record when you speak please. We transcribe all the minutes from this meeting and all the procedures and so the gals and the people who have to record that or type that up need to be able to hear it and understand who is speaking otherwise you don’t get on the record. Limit your remarks to 5 minutes or less. Usually you can state your case one way or the other in 5 minutes or less. Do not repeat arguments that have been brought by others. No sense in being redundant. Remember that all visual aids used to support the argument will remain the property of the board another words if you bring up pictures or drawings or anything like this, we get to keep them. So make sure if it’s something you want us to have let us know. Cell phones please be turned off if you would. Sometimes there are some discussions if you have sidebar conversations that need to go on I ask you if you would take them outside. Your can just step out in the hallway, it just makes it easier on everybody else to be able to hear. Ok with that in mind were going to address the first case of the public herring and that is 2795 and I would ask the board members to read the second page of what I handed to you and ask that there be a motion from the board to that effect. I will give you a minute to read if you haven’t yet.

Charles Mellon stated, do you want the motion to what you just read?

Commissioner stated, no, at the top of the second page Charlie, it basically gives a suggested motion that would essentially um..

Charles Mellon stated, ok

Commissioner stated, to make the ordinance a part of the record.

Commissioner stated, yea, to make the ordinance a part of the record ok, that’s well spoken ok.

Charles Mellon stated, I’ll make that motion.

Commissioner stated, ok do you want to read it?

Charles Mellon stated, I move that there be incorporated into the public herring portion of each application to be heard this evening and to be part of the evidence of such herring. The unifying zoning ordinance, the unified subdivision ordinance, the comprehensive plan, the bi laws and the area board of zoning appeals, the applications and all documents filed. Here with the staff report and recommendations on the application to be heard this evening and responses from the check point agencies.

Commissioner stated, thank you Charlie, do I hear a second?

Commissioner stated, I’ll second

Commissioner stated, all in favor raise your right hand please, alright, carried. Unless the members…any member has an objection, the chair will order the findings of each member casting a vote for the majority board decision of the board to be a collective finding of the board and support of the decision of the board. Herring none its so ordered. Ok.

Someone stated ok.

Commissioner stated, I think were proceeding here. Let’s take the request of motion for the first case. Number 2795 and that motion needs to be in what form Kevin?

Kevin Riley stated, just move that you hear that case number 2795.

Commissioner stated, ok, so I need to hear from the floor that we hear case number 2795.

Commissioner stated, I’ll make a motion that we hear case number 2795.

Commissioner stated, I’ll second

Commissioner stated, alright. All in favor…I….I….

Case number 2795 Harley D Klopfenstein The property is located on 46 ft off the east south lot 20 in Fox and Dibell’s edition in the town of Wollcott at 405 NW North Street. There is no violation. He is requesting a 7 foot eastside setback variance to add a room addition and a 22 foot front setback variance to bring the home into compliance. Ok and Joe you don’t have anything on this do you?

Joe stated, no, this is not a case I am familiar with.

Commissioner stated, ok, that’s fine ok Mr. Klopfenstein are you out there? Oh I’m sorry ma’am would you like to speak about the variance for it. Do you have anything you want to say? Ok, I’m sorry ma’am you’ll have to speak your name into the microphone up hear so we can get it. I’m sorry for making you do that but we got to have it.

Lori Bussell stated, my name is Lori Bussell, Harley’s wife.

Commissioner stated, Charlies wife

Lori Bussell stated, Harley’s wife

Commissioner stated, Harley’s wife, that’s right, ok so there nothing else. Harley’s not coming tonight?

Lori Bussell stated, no

Commissioner stated, ok, do we need anything from him that says that……

Commissioner stated, no she’s the applicant

Commissioner stated, she is the applicant ok alright I didn’t know that ok that will be fine. Ok is there anybody that wants to speak against this variance? Ok hearing none. Have you got your stuff? Ok questions from the board.

Commissioner stated, I’m kind of struggling here a little bit… It says...her letter says, I find the need to have a bedroom downstairs to do this chore I need to build on. Inside space downstairs is limited. Ok for her proposed edition, is a porch with a covered patio from what I understand. Maybe I didn’t read this right.

Commissioner stated, there are two proposed editions.

Commissioner stated, oh there’s the other one, ok, I see.

Commissioner stated, so that’s going to give her a 3 foot setback from the east side?

Charles Mellon stated, a 7 foot east side setback is what she is requesting. It looks like there’s only 3 there.

Commissioner stated, there’s only 3 foot there but she’s requesting 7 ft that is required to be 10 I believe.

Charles Mellon stated, oh yea, yea, I see it now.

Commissioner stated, good combination of what 16 or 18?

Several said 18

Commissioner stated, Ma’am would you come back up to the mic please. I guess the biggest question that I have is just what the compelling argument is to come that close to the property line. Is it just that you need a porch?

Lori Bussell stated, the porch already exists and I just want to go out 2 more feet.

Commissioner stated, well according to the drawing you’re going out another 4 feet.

Lori Bussell stated, ok 4 feet.

Commissioner stated, ok which leaves you 3 feet from the property line and your neighbor it doesn’t say how far he is.

Commissioner stated, is that necessary to get the footage for the room you want?

Lori Bussell stated, yes.

Commissioner stated, any other questions from the board?

Commissioner stated, I see that she has pretty good hardship because the husbands age having to climb those stairs. I know what that is. That’s all I’ve to say.

Commissioner stated, the porch on the east side, that’s non-existing their going to build that on?

Lori Bussell stated, no the porch is there.

Commissioner stated, its there your just want to enclose it.

Commissioner stated, proposed enclosed porch with covered patio.

Commissioner stated, does that porch have a foundation under it now or is it just temporary

Lori Bussell stated, no there is no…

Commissioner stated, you are just going to add on to the foundation?

Lori Bussell stated, right

Commissioner stated, so someone needs to explain to me I guess. Where I’m confused is I’m looking at the drawing here and I’m seeing the hash marks on the drawing and I’m trying to decide whether that’s an enclosure or whether that’s concrete or what it is. What’s going to be enclosed?

Lori Bussell stated, the porch on the east side.

Commissioner stated, your going to have to show me on the drawing ma’am. It’s not going to do any good to just stand there and talk at me because I’m not going to be able to understand it. You look at that drawing.

Commissioner stated, where it says covered porch there, I thinks that’s 3 foot over to that line.

Lori Bussell stated, ok the covered porch is covered to where the line goes south. The hash marks is what I want to put in.

Commissioner stated, now is that going to be an enclosed area then?

Lori Bussell stated, yes half of it. The other half is just where the roof is going to be over.

Commissioner stated, Where the hash marks, is that just have a roof on it. All this is just going to be roofed and open?

Lori Bussell stated, this covered porch goes clear out both sides.

Commissioner stated, oh it goes clear out her like this?

Lori Bussell stated, yea and that will be the room.

Commissioner stated, ok

Lori Bussell stated, that part there is just so… that’s where the roof would half to come.

Commissioner stated, what’s the proposed edition here that’s got the hash markes?

Lori Bussell stated, that’s the other side of the house.

Commissioner stated, yea, you’re adding on to that too?

Lori Bussell stated, yea to make it square

Commissioner stated, oh ok. How do you get along with the neighbors being 3 foot from the line?

Lori Busselll stated, we get along just fine.

Commissioner stated, what’s the boards pleasure? Are you ready to vote?

Several said yes, vote

Commissioner stated, you got ballots? Were ready to vote. Thank you Ma’am.

Several people talking at once

Commissioner stated, there were 5 voted cast and the vote is 3 to deny the petition and 2 to approve the decision. The petition is denied. You did not get your variance ma’am ok.

Ok I need a motion from the floor for variance # 2797.

Commissioner stated, it’s open

Commissioner stated, second

Commissioner stated, all those in favor say I….I….I

Commissioner stated, Variance # 2797 Lake Shafer Christian Center The property is located to be know as lot 1 in LSCC subdivision part W ½ 21-27-3 north of Monticello at 1765 NW shafer Dr. they are requesting a 35,681 square feet lot size variance so the property can be subdivided. Yes sir?

Nate Pyle stated, Nate Pyle Pastor 3147 N. Cardinal Drive.

Commissioner stated, is there anything you want to add sir?

Nate Pyle stated, no

Commissioner stated, as I recall was this the one where the playground was an issue?

Nate Pyle stated, right, we would move the playground if we have to. We prefer not to.

Commissioner stated, right there on the…..?

Commissioner stated, that’s what is says here.

Nate Pyle stated, probably, probably so. We would like to keep part of that too, it’s…either or.

Commissioner stated, so how many feet do they got to move the boundary line to keep from doing this?

Commissioner stated, that I can’t answer.

Commissioner stated, what’s the issue? Is the issue the rear setback?

Commissioner stated, no there wanting to make that lot 1 is not big enough, there short on square footage.

Commissioner stated, right, it’s a 35 thousand something, is that what you’re talking about?

Several said yea

Commissioner stated, yea, lot 1 yea

Commissioner stated, ok so the lot size is actually 94 thousand something almost 95,000 square feet, so its 35,681 short of the requirement.

Nate Pyle stated, right

Commissioner stated, ok, I guess since I’m not familiar with this particular file um why are you requesting to do this?

Nate Pyle stated, we would like to sell it to David Guetwein, he is wanting to purchase it for an investment. He doesn’t have any plans for it right at this moment. We would like to sell it and put it on our mortgage for what we sell it for.

Commissioner stated, I guess I’m not familiar, what is the issue with the playground?

Nate Pyle stated, well if we need the 130,000 square feet then we would have to move it over 60 feet and it would cut through that playground. We could move that whole playground around to the back but we prefer not to.

Commissioner stated, gotcha ok. Is there anybody here who would like to speak against the variance or for it? Ok

Nate Pyle stated, I’ve got 2 here that are for it. They are members of the church.

Commissioner stated, that would be fine ok.

Peggy Pyle stated, I’m his wife Peggy, um in the plans when they have the sewer and all come out, there is plans…its probably on your drawing but they are going to put another entrance on that side for the church and um if you come over then you won’t have that extra entrance into the church.

Commissioner stated, ok, thank you. Dave, are you more familiar with this, what is it about this that has to be 130,000 square feet.

Dave stated, I don’t remember, I was trying to figure that out too and I can’t remember.

Commissioner stated, I mean that’s 2 ½ acres.

Commissioner stated, what’s it zoned?

Several people talking at the same time.

Commissioner stated, B2 general business

Commissioner stated, and the fact that it’s out in the country it may have to have a septic system and they probably have to have footage for that.

Commissioner stated, right, ok, so without the variance does it ok…it either becomes un-sellable as it is or you have to move the play ground. That’s what is sounds like to me.

Nate Pyle stated, what was that now?

Commissioner stated, it either becomes un-sellable as it is, as it is drawn or unless you move the playground right?

Nate Pyle stated, right.

Commissioner stated, cause it has to be 130,000 square feet. Ok, I’m just trying to simplify it.

Commissioner stated, that’s what the ordinance says, the ordinance says it has to be 130,000 square feet, a well I’m not sure why.

Commissioner stated, Ok it’s because its in a B2 and evidently that’s the requirement.

Commissioner stated, what I’m struggling with here is what’s the hardship.

Commissioner stated, yep

Commissioner stated, I mean that’s what I’m struggling with.

Commissioner stated, moving the playground.

Commissioner stated, that’s self inflicted. That’s an economic issue.

Commissioner stated, another thing Dave, how about the drainage? The drainage is poor out there. Do you have to have a drainage permit to sell it?

Nate Pyle stated, were having a grannies plan drawn up now. James Milligan is, he is going to present that to the county surveyor and then to the drainage board, yea that that was contingent before we could sell the property we had to have all that done and then the state would have to approve all that too right?

Commissioner stated, yea

Commissioner stated, Ok

Commissioner stated, if we give him variance um to subdivide this and somebody buys this lot and they want to put a business on there, are they going to be able to do that since it doesn’t meet the minimum square footage or will they have to come get a variance or once its varied?

Commissioner stated, it depends on if they have a change in the variance or the need for the variance, um if you put in…

Commissioner stated, if somebody wants to put something that fits in a B-2 zoning and we’ve varied so he can sell this lot, will they be able to put a building on there without another variance?

Commissioner stated, my understanding is, is that as long as they would meet the setbacks then its buildable, if you grab the variance. That’s my understanding after the whole 4 days.

Commissioner stated, well said Joseph

Commissioner stated, Ok, but are the setbacks different for B-2

Commissioner stated, and what are the setbacks?

Commissioner stated, they are 30 front, 30 rear, 10 side for B-2 zoning.

Commissioner stated, so they are not substantially different for B-2 than they are for R-1? Ok, ma’am you had something to say?

Kay Harrison stated, I go to Lake Shafer Christian Center and I’m sure you are aware that within the next 2 years maybe at the most that the sewer project is coming down 6th street and we have been notified as a church that we will volunteer 25 foot back to put that in so that’s supposed to be within the next couple of years so they told us. Ah so if that septic system has a problem there I would think that it would take care of that.

Commissioner stated, Ok thank you very much. Charlie

Charles Mellon stated, I thought that area was turned over to the city, not the Twin Lakes Sewer District, because they was supposed to have it in by now. The buildings on North, that restaurant and the golf buildings and everything, they got a line right on the north side of that now and they wouldn’t stand it. They wanted to charge them to much 3 or 4 years ago for each room in that hotel building, and they got 2 buildings there now and so they gave it up and turned it over to the city. Well the city was supposed to have something done and the city hadn’t done it. When they came out and talked to….I can’t think of his name, it’s the son-in-law that runs that out there, that owns that. They come out with an enormous fee, about 1 million dollars for his half to put that in and he said aww he couldn’t stand that so that’s up in the air and that’s the first time I’ve heard about the Twin Lakes Sewer District going to put sewer out there.

Commissioner stated, but this variance is only to address the square footage issue.

Charles Mellon stated, I know that, yea

Commissioner stated, is the board ready to vote or do you want to hear anything else?

Commissioner stated, may as well vote I guess.

Commissioner stated, great, thank you sir.

Charles Mellon stated, I’ve got 1 more question I’d like to ask him.

Commissioner stated, go ahead, go ahead

Commissioner stated, is it going to be a great expense to move the playground, or a great hardship? I’m trying to find a way to justify this because really there is no hardship that I can see.

Commissioner stated, to meet the mortgage too, that’s another thing he said.

Several stated, that’s self inflicted though.

Commissioner stated, I would like to sell half of my yard off.

Nate Pyle stated, well it’s the playground and then there is an entrance that when they do widen that road, there going to have a main entrance coming into the church and we could keep that one entrance there. There going to make that into a concrete entrance into the other side of the church and we would have liked to have kept that so we could have an entrance into the other side. Do you see what I’m talking about?

Several talking at the same time discussing drawing

Charles Mellon stated, the other stipulation is that they will have to get a drainage permit.

Commissioner stated, well I think they have to anyway Charlie, I don’t think you even have to stipulate it, yea, I don’t think they can do it without it.

Commissioner stated, to answer your question, I believe that was part of the condition of the secondary subdivision approval is complying with the drainage ordinance.

Commissioner stated, if this was inside the city limits, what would the square footage have to be? Probably just considerably less.

Commissioner stated, you mean if it was on a sewer?

Commissioner stated, no if it was inside the city limits.

Commissioner stated, oh

Commissioner stated, I just screwed some of those Kevin, I just served them out and initialed them is all if that’s appropriate.

Commissioner stated, 5 votes cast, 3 votes vote in favor of the variance and 2 votes vote opposed so the variance is approved.

Several said thank you

Commissioner stated, your welcome

Commissioner stated, alright I’ll entertain a motion from the board on variance #2798 Cathy Russell rental properties.

Commissioner stated, I’ll move

Commissioner state, second

Commissioner stated, all in favor..I…I…I and I don’t see Mrs. Russell here on behalf of the petitioner?

Someone said Oppose

Commissioner stated, that’s fine.

Commissioner stated, Dave someone must be here to representing it or the request must be tabled so…

Commissioner stated, according to the ordinance then, the matter is already tabled until next month, so sorry you wasted your time coming up, but she didn’t show.

Woman stated, will we get a notice on that?

Commissioner stated, you will, if you leave your name and address that would be helpful. Are you an adjoining property owners.

Women stated, yes, yes

Commissioner stated, did you receive any notice recently?

Woman stated, were the only one who got a letter.

Man stated, not the rest of our neighbors in that area.

Woman stated, we got a letter from Charlie Anderson. Were the only ones that live up there out of the whole Gingrich edition that I know of that got a letter.

Man stated, the notice that they posted on the property itself….would you like me to come up and….

Commissioner stated, yes, that’s fine, that’s fine. I would be interested in hearing it.

Rodeny Martin stated, my address is 5802 E. Chalmers Road. I live directly across the road from this property in question. There was a notice posted on this property that they want to rezone as far as the lot sizes and it was posted I believe on paper and its faded away since and no one seems to have been notified out there other than a couple of families and there are a lot of families involved out there.

Commissioner stated, I think the objective usually is to notify the adjoining land owners isn’t it? That is my understanding.

Someone stated, we didn’t get anything.

Commissioner stated, are you adjoining land owners.

Someone stated, yes

Rodeny Martin stated, well we are directly across the road from them.

Commissioner stated, I think it has to be adjoining and that’s what they do is they go look at the property, maps and…..

Rodeny Martin stated, it’s a corn field and on the other side of it is woods.

Commissioner stated, I understand you but I just….

Rodeny Martin stated, but there is also property to the back side of it and I’m sure if those people had been notified, they would be here. I don’t believe they were notified.

Commissioner stated, ok, well ok, would it be inappropriate Kevin to get their names and addresses or have them call into the area plan and leave their name and address so they can be notified on this matter.

Kevin Riley stated, that’s what I would do.

Woman stated, I will go door to door.

Rodeny Martin stated, we will go door to door if we have to and notify them.

Commissioner stated, what I would suggest that you do is, is that it will come up at the next meeting but what I would suggest that you do is call the area plan office tomorrow or next week, what ever you want to do and give them your name and address and ask that you be notified when this Cathy Russell Rental INC matter comes up again and that you would be continued to be notified for any other procedures that happen.

Rodeny Martin stated, you’re saying that this will be tabled until next month?

Commissioner stated, that is correct

Rodeny Martin stated, could I have a date on it for next month?

Commissioner stated, the 3rd Thursday

Rodeny Martin stated, the 3rd Thursday of February

Commissioner stated, yes what ever your calendar says. That would be the 19th looks like. Yep

Rodeny Martin stated, thank you very much gentleman

Commissioner stated, no problem

Commissioner stated, alright that one is tabled.

Brad Denton stated, um were across the road from the property as well, were south.

Commissioner stated, Brad, I’ll tell you one of the problems is going to be is that she is not here to defend herself so if there is anything your speaking against it you might as well save your breath. I mean we will get you notification. Give the area plan office a call tomorrow. That will be a big help. Thanks a lot Brad. Sorry Brad, I wasn’t trying to cut you off, I just, you know, you didn’t understand.

Commissioner stated, the next item I would entertain the motion on is appeal #7. Pride Properties, LLC.

Commissioner stated, I’ll move

Commissioner stated, second

Commissioner stated, all those in favor…I…I….I

Appeal # 7 Pride Properties LLC, appealing from a decision made by the executive director and interpreting rules 4.5.2, 4.5.3 and 4.5 with regards to applicants request at lot 1 in Franks Wayside Lodge subdivision Liberty township, White County Indiana is a grandfathered building lot of that residence can be constructed on said lot.

Terry Smith Stated, I’m representing the owners.

Commissioner stated, thank you Mr. Smith

Terry Smith stated, good to see you Kevin, Joe, welcome aboard.

Commissioner stated, thank you

Terry Smith stated, any questions gentlemen? We had a discussion last time.

Commissioner stated, we did, I guess I would ask if there is any opinion from the director.

Joe Rogers stated, Um well let me just say this, this seems to have kind of an extensive history that I’m not familiar with so I’m going to be basically giving you some input only from a very recent analysis I guess of the information that’s available to me. These properties as I understand have been owned by the same individuals since about 1977. It included 3 parcels, the lot where the principle residents is on, the lot that’s in question for sale and there’s a small parcel in front of those two lots where there use to be a plan for a road I guess at one time. Currently the premises that are on the original lot according to the surveys in our office, encroach on the second lot. The boat house appears to encroach according to the drawings and the deck may. The drawings are unclear as far as the deck is concerned but if you separate the lots, it certainly wouldn’t meet setbacks. So our first issue is that there is encroachment on that lot. Our second position would be is that particular lot is land locked. There is no road access to that particular lot as it is currently laid out. It seems that since 77 that those two lots have really been treated as a single residential parcel. I guess that’s the way I’m going to put it. I don’t know if that’s appropriate or not. We don’t see how you can sell that as a lot available for building.

Terry Smith stated, if I could respond briefly. The current owners haven’t owned it since 1977. Actually the ownership of lots 1 and 2 have historically since 1923 been owned by the same persons through the years. The original developer obviously owned the lots. The original developer sold off a small portion of lot 1 in 1960, retained the balance of lot 1 and 2 and had passed as a unit but as separate lots to the different. My clients have owned the lots, I think 8 or 9 months. With regards to the encroachment, I would have to disagree for two reasons. One the deck doesn’t encroach. There is a boat house and if you extend the lot line into the water, you would find an encroachment but the actual pear itself is not an improvement on this ground. The pier is on the sflec ground so it is not an improvement on the con-finds of lot number 1. With regards to access to the property, at the current time, there is a small triangular piece that abuts the roadway that this owner also owns so access isn’t a problem to the lot. If the lot is buildable, there will be an easement given over the triangular piece and can be given now if that would satisfy this body.

Joe Rogers stated, but currently it is landlocked as it stands right now?

Terry Smith stated, it is not land locked, you are only going to be landlocked if you separate the ground. In other words Joe, if I owned my house and if I own the field next to it, my house doesn’t abut the road but my field abuts the road. I can cross my field to get to my house so I’m not landlocked.

Joe Rogers stated, with an easement?

Terry Smith stated, no I don’t need an easement because I own it. Do you follow me?

Commissioner stated, does that marry the properties together though if….

Terry Smith stated, it doesn’t marry the properties together. You can sell lot 1 as long as there was access. You could sell it to somebody else. But these at the current time if a house is constructed, its going to be constructed by the owners and when sold obviously you would have to give access across their ground but I don’t see that has anything to do with the issue of the grandfather because this lot dose have access because I own the adjoining ground if that makes any sense. You’re never going to be landlocked if you can get from the road across your ground to where ever you want to go.

Commissioner stated, do we have a survey on this property?

Joe Rogers stated, well as far as I know this property had requested a variance awhile back. I don’t have the date on it. This is a map from the variance request which shows where they were going to modify the property line. That was the variance request that was made. That variance was denied.

Terry Smith stated, yea were not here for a variance. There should be….

Joe Rogers stated, so the current drawings that I have in my office do not show the buildings. They show the property but not the buildings.

Terry Smith stated, I thought I attached to my petition a survey. Dave do you got….

Joe Rogers stated, yea, you have a survey shat shows lot 1 and lot 2 but lot 2 does not show where the residences are or whether they encroach on that property line and according to this survey it certainly looks like they do.

Terry Smith stated, the house encroaches?

Joe Rogers stated, no the boathouse and deck.

Terry Smith stated, well the boathouse isn’t on the property.

Joe Rogers stated, well according to this survey, part of it is.

Terry Smith stated, well that would be wrong.

Joe Rogers stated, it was a survey that who ever owned it at the time submitted for the variance.

Commissioner stated, it clearly shows it to be partly on lot 2.

Terry Smith stated, I haven’t seen that Dave

Commissioner stated, this is what I’m looking at right here.

Terry Smith stated, this is lot 1

Commissioner stated. Yep

Terry Smith stated, I don’t see any boathouse. There’s you’re drawing.

Joe Rogers stated, those were the proposed property lines, those are not the existing. That’s what I’m saying your survey includes the property lines but it doesn’t show where the residences or the accessory facilities occur and when we looked at it, it appeared to us that those encroach on the other property but without having a survey I can’t really say that definitively.

Several people talking at once

Joe Rogers stated, and that variance was denied when it was applied for.

Several people talking at once

Joe Rogers stated, that came from the appeal of the variance file that was done when ever the variance was requested.

Several people talking at once

Commissioner stated, are you in a big hurry? Can you bring us back a survey?

Terry Smith stated, I was going to say lets go to the second issue rather than have them spend another $500.00 bucks. If its going to be denied on the contiguity issue, then there’s no sense doing it right? I mean our position obviously still is… and there’s been discussion that the frontage is the lakeside and my argument is maybe it should be and maybe the ordinance should have said that but it doesn’t say that. Um the way I read your current ordinance it doesn’t define frontage. The only reference is to front yard setbacks and your front yard setbacks all go from the road and I assume that a front yard setback is your frontage and if that’s the case, then we don’t have a continuous frontage.

Commissioner stated, can I see that. If that’s the case, is this the actual building area here?

Terry Smith stated, no the actual building area is right there, this was the modification. The actual building area you would say that lot 1 is buildable its right here and if they could put a house within those setbacks, fine, if they can’t, they understand that they can’t build because they’ve already lost the variance.

Commissioner stated, ok so if they…

Terry Smith stated, if they can get a house within the confines of lot 1 as it exists, not what they propose, right here well actually half of this vacated road would then become part of the lot.

Commissioner stated, so the variance was for square footage wasn’t it?

Terry Smith stated, the variance was for square footage and they wanted to include this which is not part of lot 1.

Commissioner stated, the Hickman’s wanted to include that or the…?

Terry Smith stated, the Hickman’s wanted to include it when they asked for the variance and now were coming back and saying we can get a house to meet the existing setbacks on just lot 1.

If we are just dealing with lot 1, my argument is we don’t have continues frontage.

Commissioner stated, if you had this triangle you don’t need a variance, you have the minimum square footage that you need?

Terry Smith stated, I don’t think so. I don’t think even adding the triangle gets us to 10,000

Commissioner stated, and the pattered roadway

Terry Smith stated, well see the roadway has been vacated

Joe Rogers stated, and that property has been evenly divided between the two lots and not any of it has been added to the triangular portion?

Terry Smith stated, right, so my understanding is that if you tell us its buildable then we have to use the existing setbacks and build it within those, cause I..I.. I mean they could come back for another variance obviously but your going to reject it.

Commissioner stated, Yes, you would have to…they would have to meet the current setbacks, he’s right.

Terry Smith stated, correct, unless they get a variance which the odds are slim in my opinion unless the board has a change of heart.

Commissioner stated, but under the new ordinance the setbacks are a little bit more forgiving than the old ones.

Terry Smith stated, the sides are

Commissioner stated, the sides are, right, right

Terry Smith stated, and then you’ve got an issue and I don’t know what you’ve been doing on your lake properties. Are you taking your front yard setbacks from the water or from the road?

Commissioner stated, we did until you came last week.

Joe Rogers stated, by our office they are all taken from the water, that’s how she treats them.

Commissioner stated, but according to our ordinance, that’s not right.

Joe Rogers stated, I see, yea I said that but I’m just saying that’s what the practice has been.

Commissioner stated, so I’m thinking in this case we’d have to look at it like the ordinance says, is that not correct or….

Commissioner stated, well the lot frontage, I mean it says there cannot be continues frontage. Lot frontage is defined as the front of a lot shall be construed to be the portion nearest the street right of away. That’s how lot frontage is.

Commissioner stated, even in an L

Commissioner stated, that’s how lot frontage is defined in the ordinance.

Joe Rogers stated, then how is it not continuous regardless of which side you look at.

Terry Smith stated, well because Joe, on…here’s what happens, when we vacated the road, ok, the road is here so now lot 1 is not on a road so you don’t have continuous frontage on a road.

Joe Rogers, Oh ok

Terry Smith stated, it’s a technicality

Commissioner stated, its all a technicality

Terry Smith stated, yea….So I guess my position is if we’ve got a shot on that then I’ll tell them, if your concerned about…and I’m concerned about the improvements because if I read the ordinance correctly, if there is in fact existing improvements then I’ve got a different ballgame and if there is an improvement from lot 2 onto lot 1 then the either have to take it off or I’m not sure they can build on lot 1.

Joe Rogers stated, I’ve got a hypothetical question, um if the lot…in talking to Diann, basically the conclusion was is that when those original principal facilities were built and accessory buildings, they were built with those two lots being considered as one parcel because they don’t meet any setback requirements, if you look at it just as those as two individual lots. Now if you say that the lot number 1 I think it is, is a buildable lot, that’s what there trying to do, then where does that position the current residence, cause then its non-compliant because it doesn’t meet setbacks. I’m trying to understand how all this is going to work if you don’t consider those a single building parcel.

Terry Smith stated, I mean my opinion would be that lot 2 is non-compliant anyway. If they try and sell lot 2 they are going to have to get a variance because when they purchased it, obviously it was ok but now if they sell lot 2, they have to meet the confines of your setbacks; if it does, then great. I don’t know if it does or not to be quite honest. My guess is that is does not. She says that it meets the existing setbacks so I don’t know.

Joe Rogers stated, ah no I don’t think it does because as I understand it, it has a deck on it that goes out to the waterfront.

A woman stated, We do have a right to encroach already in place with the SFLECC because a corner of the SFLECC line cuts across the coroner of the deck and we already have a right to encroach on….

Joe Rogers stated, ok but what I’m saying is that the deck has to meet the setback requirement, not just the house. Under the new ordinance, the deck is considered a portion of the principal residence, so the deck itself would have to meet the setback. I don’t think it does meet the setback because it goes right up to the property line. There’s no setback there where the deck is.

Commissioner stated, what is the deck setback 4 feet? Or is it the same as the house?

Joe Rogers stated, no same as the house. Under the old ordinance it was 4 feet I believe.

Terry Smith stated, see that problem exists whether you combine 1 and 2 or you just have….

Joe Rogers stated, I was more concerned about the side setback which would no longer maybe be in compliance if you allow the properties to be considered split.

Commissioner stated, if we go back to the appeal, and it seems like maybe we are talking about the appeal but it seems like we’ve gotten astray but the fact that Terry is considered a grandfathered building lot is what you…..

Terry Smith stated, my request is that it be a grandfathered building lot under your current ordinance and our position is that the reason and actually there wasn’t a reason given. There was an oral reason I filed under your ordinance, you then would have to make a request for a determination. A determination was not made in writing, therefore it acts as a denial of my request, then I file the appeal based upon the issues that I formed in my request which was to determine whether or not its grandfathered in your sections pertaining to contiguous frontage issue denies it the grandfather. I guess really that’s all that’s in front of you.

Commissioner stated, That’s kind of what I was thinking.

Terry Smith stated, and then if you say ok your right there not, you don’t have continuous frontage because its not frontage. Then if they come in for a building permit then your going to say you have a setback problem…so I don’t know.

Joe Rogers stated, I don’t think my one man office, I don’t think can really render an opinion without having more information so I’m just going to say if you want an opinion or a recommendation from my office, I would want to see a survey with the facilities located on it and I certainly would want to have a better understanding of how the right of way access would occur. I’m open, I’m not fixed in any particular position but that’s to….to get another opinion from me I would need that information.

Commissioner stated, is that something you want to consider Terry?

Terry Smith stated, it’s your money.

The attorney’s client stated, the access now is actually on that lot, well I mean across the triangle, I mean that’s….

Terry Smith stated, I don’t think that access is a problem as long as long as you own continues ground, then you don’t have an access problem but you may want to talk to Kevin about that. If you then sell something separately, then you have an access problem but I don’t think that has anything to do with this issue.

Commissioner stated, at least the way I read the ordinance, I mean the consideration is that the lots must be in separate ownership and not of continues frontage with other lots in the same ownership. So those are the considerations that are set forth in 4.5.2

Commissioner stated, could you say that again?

Commissioner stated, sure, this section that council is talking about is that the lots have to be in separate ownership (1) and that they cannot be of continuous frontage with another lot of the same ownership. So you have separate ownership. No continuous frontage. Those are the two parts of this ordinance that..that are at issue.

Commissioner stated, so I’m going to ask you of your opinion. I’m not understanding completely, this is not soaking in just right what you’re telling me.

Commissioner stated, well I mean your consideration is whether the lots have the same owner which they currently do.

Commissioner stated, they currently do and we are not concerned about what may happen.

Terry Smith stated, yes

Commissioner stated, you can only look at what’s going on right now, you can’t predict…make this on a future prediction

Commissioner stated, ok, yea what’s going on, ok, right

Commissioner stated, and then the other, it says that the lots must be in separate ownership, that’s one and not of continuous frontage.

Commissioner stated, not of continuous frontage and they do have or they don’t have?

Commissioner stated, they do have don’t they?

Commissioner stated, well I mean that’s a the way you read lot frontage that’s

Commissioner stated, that depends on what frontage is.

Commissioner stated, yea, yea, ok

Several are talking at once.

Commissioner stated, I’m thinking the fronts are water.

Commissioner stated, right

Commissioner stated, but I thought the triangle was split up between the two lots now?

Commissioner stated, no

Terry Smith stated, there’s no road that abuts lot 1 so therefore there is no frontage to lot 1.

Commissioner stated, ok, ok

Terry Smith stated, so there is no continuous frontage.

Commissioner stated, alright, alright, ok

Terry Smith stated, since there is no road

Commissioner stated, but there not owned by separate…there owned by the same party.

Commissioner stated, owned by the same party

Terry Smith stated, and I disagree somewhat with the reading. I think you have to have…if you have separate ownership, you don’t have a problem, then it is grandfathered. If you have the same ownership, its grandfathered if you don’t have continues frontage. That’s the way I read.

Commissioner stated, and that’s different from my reading.

Terry Smith stated, yea, if you had separate ownership, this wouldn’t be an issue.

Commissioner stated, the issue would be in the square footage.

Terry Smith stated, yea, it would automatically be grandfathered if you could meet your setbacks.

Commissioner stated, so do we under….go ahead, I’m sorry.

Commissioner stated, I’m sorry an…and the area and the width, he is right, that if you decide that..that there is not…there is separate ownership and there is not continuous frontage, then yes all they have to do is meet the setback. The lot width and area is not a consideration under… under the way this is written. That’s the way I interpret it.

Commissioner stated, so if we…if we deny the appeal, we’re saying what Kevin, that there is continuous frontage?

Kevin Riley stated, well if you, if you…

Commissioner stated, or there’s, there’s owner.. ownership by the same person.

Kevin Riley stated, let me look at…let me look at the language…the language of the appeal, um, the question is whether it’s a grandfathered property that can be built upon, um, yea, um, that lot 1 be deemed a grandfathered building lot so if the appeal is denied, you would be…your decision would be that it is not a grandfathered building lot. Lot 1 is not.

Commissioner stated, which would mean? What are the requirements for it to be a grandfathered building lot?

Kevin Riley stated, well, I mean, I think, what council is saying, and correct me if I’m wrong, but under 4.5.2 he is saying that its grandfathered in meaning it’s a single family resi…1 single family lot, residential lot, what he is saying is under ah…if…if…if he meets the requirements under this ordinance, then it is a buildable lot even if he doesn’t meet the area or with requirements under the current ordinance.

Commissioner stated, correct, still have to meet setback to get a building permit but would not have to meet the area.

Commissioner stated, but by denying the appeal, we are saying um what?

Kevin Riley, you would be saying that…that in order to build on a lot, they would have to meet all the requirements to build on a lot.

Commissioner stated, of the current ordinance?

Kevin Riley stated, correct, of the current ordinance. Which would include setbacks, lot width, lot area.

Commissioner stated, lot size, yea

Kevin Riley stated, now that would not, in my opinion prohibit them in coming back and trying to get a variance for those lot…lot area, lot with, if that hasn’t been done.

Joe Rogers stated, ok, so my question still stands, though, how can you say yea or neigh if at this point in time were still uncertain as to whether there is an encroachment issue?

Commissioner stated, I think he was wanting a feel..

Commissioner stated, yea, yea, and I don’t think…

Joe Rogers stated, ok

Commissioner stated, I don’t think in regards to this particular issue, whether its grandfathered of not, I don’t think encroachment has anything to do with it, I mean that’s my interpretation I mean it doesn’t make any difference.

Commissioner stated, oh, unless by selling the lot…

Commissioner stated, then you’ve got a problem.

Commissioner stated, then you’ve got a problem.

Commissioner stated, that’s a problem.

Commissioner stated, so we’ve got 3 choices Dave, as I see it, I mean I’m just talking out loud here but one of them is to table it again and ask the petitioner to provide a more detailed drawing that shows the buildings on the drawing so we can assess the encroachment issue if there in fact there is one, or then we vote yea or neigh on the appeal itself as to whether its grandfathered or not. Based on what you’ve heard.

Kevin Riley stated, I mean essentially the vote is either you uphold the executive directors opinion or you overrule.

Commissioner stated, right

Commissioner stated, correct

Commissioner stated, what’s the boards pleasure?

Commissioner stated, I would be interested in going along with what the director said once.

Commissioner stated, the only thing bad about that is though if we go ahead and have them get a survey and then we vote it down, they’ve wasted 500 bucks.

Several stated, yes

Commissioner stated, and it may not be anything to do with essentially the core issue even though it’s a valid issue in and of it self it seems like..

Commissioner stated, no question

Commissioner stated, but it would be an issue at a later point in time to be resolved.

Charles Mellon stated, we’ve spent a lot of time on it already.

Commissioner stated, yea but we’ve got time Charlie, its only 9 o’clock….We got time

Terry Smith stated, Charlie your not getting paid by the hour……

Charles Mellon stated, no, the other thing, do they have to notify the neighbors when these meetings are coming up. It’s a good time to have them, maybe the neighbors are all in Florida. You know at the first meeting, there were a lot of neighbors here that were against it.

Terry Smith stated, you mean for this issue? No, no

Commissioner stated, for this, this is an appeal, no

Commissioner stated, well the first one is a different issue.

Commissioner stated, right, right

Terry Smith stated, no question, they came in for a variance and they had to notify and if they come back, then they need a variance, they have to notify.

Commissioner stated, yea, ok

Terry Smith stated, my only request obviously is that if you approve it I don’t have any request but if you deny it, I would request findings and why you did it and so on and so forth for a record.

Commissioner stated, yea

Terry Smith stated, I would urge you to amend the ordinance though.

Commissioner stated, that’s another issue.

Commissioner stated, and see that’s the thing, if were going by the way the ordinance used to be written for lake…

Terry Smith stated, no question, I wouldn’t be here…I would have said your going to lose.

Commissioner stated, correct

Commissioner stated, can the chairman make a motion

Commissioner stated, yea go ahead

Commissioner stated, no I’m not asking a question consoler. Ok, but I’m just, I’m just. I move that we overrule the directors earlier decision and grant the appellant.

Commissioner stated, second

Commissioner stated, any discussion, further? All in favor raise your right hand. Motion did not carry. Ok, further discussion?

Commissioner stated, why are you looking at me?

Commissioner stated, huh?

Commissioner stated, you’re doing fine, ok, any other motion?

Commissioner stated, I would say at that point uh…..

Commissioner stated, it must be pretty obvious,

Commissioner stated, we don’t need a motion.

Commissioner stated, well I think you do, I think we need to deny the appeal, that’s that we need to do, if that’s the fact

Several talking at once

Commissioner stated, I’ll make the motion to deny the appeal.

Commissioner stated, ok, do I hear a second

Commissioner stated, second

Commissioner stated, all in favor raise your right hand.

Commissioner stated, which side of the fence are you on?

Commissioner stated, oh, I’m sorry, actually I didn’t mean to do that, I was just trying to show you how to do it….right hand verses left hand. I’m going to have to raise my left hand. Let the record show, it was 3 to 2. I really didn’t want to raise my hand. That was a….

Terry Smith stated, could I request at some point Kevin prepare a reason for you guys and sign it.

Two Commissioners stated, findings and fact and conclusions.

Commissioner stated, yep

Terry Smith stated, thanks guys

Commissioner stated, I apologize for the length of time Terry

Terry Smith, hey no problem

Commissioner stated, but it was…

Terry Smith stated, its interesting and seriously amend the ordinance if you want the lake frontage to ahh…

Commissioner stated, that was why I actually voted yes in the first place. Made the first amendment. So ok, yep

Terry Smith stated, thank you

Commissioner stated, thank you. Any further business?

Several talking at once

The meeting adjourned.

Respectfully submitted,

__________________________________

David Scott, Secretary

__________________________________

Joseph W. Rogers, Director

White County Area Plan Commission


Document Prepared By: __White County Area Plan

 

 

“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.”

 

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