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The White County Board of Zoning Appeals met on Thursday, February 19,, 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, David Hall and David Stimmel. Also attending were Attorney Kevin Riley and Director Joseph Rogers.

Visitors attending were: Constanee Bumbleburg, Robert Novak, Joe Dold, Chris Huber, Joe Bumbleburg, Ed Jacabs, Stacy Jacobs, Bhulinder Sodhi, Edwin Buitto, Rocky King, Saryio C.

The meeting was called to order by President David Stimmel and roll call was taken. made a motion to dispense with reading and approve the minutes of the, December 9, 2008, & January 6, 2009.meeting. Motion was seconded by and carried unanimously. Attorney Altman swore in all Board members and audience members.

Motion was made that there be incorporated into the public herring, a portion of each application to be heard this evening and to become part of the evidence of the herring, the unified zoning ordinance, the unified subdivision ordinance, the comprehensive plan, the by-laws of the area plan of zoning appeals, the application and all documents followed there with. The staff report and recommendations on the applications to be heard this evening and the responses from the check point agencies.

Second

Motion carried

David Stimmel stated, unless any member has an objection, the chair will order the findings of each member casting a vote for the majority decision of the board, the collective finding of the board in support of the decision of the board. I’m making that in the form of a motion.

Second

Motion carried

***

#2781 Chris L. Huber; The property is located on Lot 1 in Zorica Subdivision, located East of Monon off of Zorica Lane on the south side of Surrey Court.

Violation: None

Request: He is requesting a 35’ rear setback variance to build a new dwelling.

Chris Huber stated, the reason why I’m requesting this is for one with the setbacks all the way around the house, it’s a pretty small area they require me to build a 2000 square foot home on this area. The main thing is is that it is behind the front of the house that’s adjacent there, Mr. Jim Brown lives in the house there to the east and his house is 85 feet off of the street and with the cul-de-sac there in front of lot 1 and 2, if I would go back 100 feet, I would be 40 feet behind him and so I would like to bring it up so that the houses could be in line. It would be a nicer looking subdivision.

 

 

David Stimmel stated, Chris one of the questions: We were out there today looking at the property and part of the staff report said that the original subdivision setback is more restrictive than the current ordinance.

 

Joe Rogers stated, It was my understanding that the setback of the subdivision is 100 foot. If I’m not mistaken these are L-1 properties and of course our ordinance is less restrictive than that. On our ordinance if you are on L-1 property your setbacks are not 100 foot, they are 30 foot and 20 foot.

 

Commissioner stated, so can we vary from a subdivision ordinance?

 

Commissioner stated, He can properly request a variance for the setback.

 

Joe Rogers stated, The impression that I have gotten is that it was the desire to, I think we spoke as far as small rural communities were concerned. It is to trying to prevent to have houses one 10 feet from the road and the next one 50 foot back. That is what he is trying to accomplish here.

 

Dave Stimmel stated, the thing I’m confused about Joe are we varying from the subdivision or are we varying from our ordinance?

 

Joe Rogers stated, he is requesting a 35 foot rear setback which is a variation from the subdivision. Our setback is only 20 foot on the rear.

 

Dave Stimmel stated, so he is requesting a variance from the subdivision setbacks that he originally set up?

 

Joe Rogers stated, yes that’s how I understood it.

Commissioner stated, who owns the subdivision?

 

Chris Huber stated, Pete Zorica

 

Commissioner stated, is he opposed to this?

 

Chris Huber stated, no, as a matter of fact he doesn’t understand why when it was drawn up that he just kind of said draw it up as you see fit, he told Mr. Milligan and so a lot of the lots in this subdivision have this same problem and he doesn’t understand. He said you will just have to get a variance. He has no problem with it. The neighbors don’t either.

Commissioner stated, that’s quite a large subdivision out there. I know this doesn’t come into play here but if they are going to make this all consistent, why don’t they re-do the subdivision so each guy doesn’t have to come in and get a variance?

 

Chris Huber stated, Mr. .Zorica has approached me on buying the subdivision. He would like to sell it. I don’t know if I could do that or not but I was wondering the same thing that if I did purchase the subdivision to build on, would I have to do this with each individual lot or would there be a way that you could approach the whole subdivision and do it.

 

Joe Rogers stated, if he is not that interested in the subdivision in the first place, he doesn’t want the healthy expense to do it so he would just prefer to let each property owner bear the expense and do it themselves. That’s just speculation.

 

Dave Stimmel stated, ready to vote

 

Dave Stimmel stated, there were 5 votes cast and 5 votes vote in favor of the variance so the variance passes.

 

#2782 Chris L. Huber; The property is located on Lot 2 in Zorica Subdivision, located East of Monon off of Zorica Lane on the south side of Surrey Court.

Violation: None

Request: He is requesting a 40’ rear setback variance to build a new dwelling.

Motion was made for a vote

 

Second

 

Dave Stimmel stated, there were 5 votes cast and 5 votes vote in favor of the variance so the variance passes.

 

 

#2796 Frank L. & Doris A. King; The property is located on 3.478 acres, Part SW ¼ 1-28-3, in Liberty Township, located northeast of Buffalo at 10228 N. Rock Ridge Road.

Violation: None

Request: They are requesting an 11’ front setback variance to bring a gazebo into compliance.

 

Rocky King stated, I’m just trying to bring everything up to date.

 

Dave Stimmel stated, we were out there today and it looked like that gazebo has been there for quite awhile.

 

Rocky King stated, yea it’s been there for awhile.

 

Dave Stimmel stated, I noticed on the blueprint to that there is another building that is actually across the line. Am I mistaken about that?

 

Rocky King stated, yea, that’s one of those trailers from the far end.

 

Dave Stimmel stated, is there some reason why you don’t bring that into compliance at the same time?

 

Rocky King stated, well originally that was an old campground. Them buildings have been down there probably for over 30 years. Basically what is was is an old campground. We had bought it & me and my brother just want to split the property. We’ve got some aunts and uncles that come down on the weekends. Eventually none of that stuff will be down there. There getting up in age and when they leave, the trailer is going to leave with them.

 

Commissioner stated, the gazebo is currently 19 feet?

 

Rocky King stated, yea, I believe we need an 11 feet setback to bring it into compliance.

 

Joe Rogers stated, it was rezoned to L-1 just recently and an L-1 has a 30 foot setback.

 

Commissioner stated, was there a permit for this gazebo?

 

Dave Stimmel stated, the gazebo has been there for quite awhile. The wood looked weathered and stuff. We were out there today.

 

Rocky King stated, originally there were like 40 trailers there and we pulled all of them out and cleaned that whole property up.

 

Dave Stimmel stated, would someone entertain a motion to vote.

 

Motion was made to vote

 

Second

 

Dave Stimmel stated, there were 5 votes cast and 5 votes vote in favor of the variance. The variance was passed.

 

#2799 Harpreet Singh; The property is located on .06, .32, and .57 of an Acre, Out N NW 28-27-3, located in the City of Monticello at 1510 N. Main.

Violation: None

Request: He is requesting a 48 sq. ft. size variance and a 6’ height variance to replace an existing sign.

Joe Bumbleburg stated, I’m with Ball, Eggleston in LaFayette representing the petitioner here. I handed up to Mr. Rogers an affidavit of the sign posting and I’m going to pass to you some exhibits that will maybe be helpful. If there not well we won’t worry about that then.

See Attached exhibit

Joe Bumbleburg stated, the description on the staff report is a description that we will agree with. I suspect that all of you have been to the site. So to tell you that the current sign out there is not exactly a credit to the neighborhood and that a new sign on this site would be an important and good addition. The new sign that we put up will indeed be some several feet farther back from the road because the sign is not as wide and when we take down those posts and that cement base and unhook those members that are holding that sign up right now, the new sign that we post will come inside those and so that will by definition draw that sign back from the road. The current post base is about 14 feet from the apparent right of way and I use that description because on many state and county roads where the actual right of way is, is subject to both interpretation and discussion and at least on the one survey that I had, that’s how they described as the apparent right of way and we are 3 feet from the nearest side yard and the leading edge of the current sign is about another 6 inches in from the road. We are asking for the sign that I’ve actually shown you a picture of that you see there, the color sign, and with that packet there is a copy of the survey and down in the corner of the survey, there are 2 little squares. That is essentially where the bases of the sign are right now and its within that area that we would again place the new sign. We have a stick drawing with that that would help you and you can see then on the last sheet, how we are going to bring the size of the new sign in and set it back a little farther from the road. I’m advised that there is going to be an effort to clean up the parking lot here and the bottom line on any of these is do we harm in any way shape or form the neighborhood and the fact of the matter is the grant of a variance will have no effect on the safety, the morals, or the value of anything in that area. In deed it may help most of those and since we are setting it back just a little bit, if there was any public safety issue, we are going to make that a little bit better. As close as we could tell from some study, the current sign that was up there was a non-conforming sign to begin with. It was likely in use when the first ordinance was passed and under the law it was permitted to stay and Kevin and I could have a whole mornings worth of discussion about whether or not what were doing here tonight was really required and he and I have had a little of that and so I finally concluded based upon his advise, coming in and asking for your permission to do what were going to do here was the prudent thing to do. An academic discussion over non-conforming use didn’t make a whole lot of sense. Again there is no harm to anybody in the neighborhood. We are putting up a nice clean new sign and getting rid of the old one. I have some pictures of the old one and its really decrepit and not helpful to the neighborhood at all. This will be a blessing in that area to have something new and clean and again like I said, there is no harm to anyone by the grant of the variance here and indeed maybe a help so on behalf of the petitioner I would request your approval.

Commissioner stated, have you approached the city and has there been any objections there?

Joe Bumbleburg stated, no I have not approached the city. My client has not indicated to me that there has been any objection. This petition has been on file for quite sometime. We sent the requisite notices. The sign has been up out there and absolutely no one has made any noise.

Commissioner stated, the only reason I bring that up is because in the past, on 6th street we have had some issues and we’ve basically have asked the petitioners that if the city signs off on it, we will approve it. There have been 2 cases or 3 in that regard. This is further north but still part of it.

Joe Bumbleburg stated, I will remember that admonition the next time. It’s a good thought, there is nothing wrong with that.

Commissioner stated, my only thing is, like you were saying, it would be nice to have a letter from the city saying…..we don’t care.

Joe Bumbleburg stated, had I understood that that was one of the ground rules, I would have been over there. Next time I will.

Joe Rogers stated, I have 2 questions, 1 for Mr. Bumbleburg and 1 for the board. I don’t understand why they didn’t just bring the sign into compliance with the current ordinance. They are redoing the whole thing anyhow, why don’t they just bring it into compliance?

Joe Bumbleburg stated, one of the suggestions I would think on this is, that we do have a relatively stable and solid concrete base there already to which to we could affix this sign and to tear that one out and then have to restore in that area and then pour another concrete base would just be a wasteful in our opinion.

Joe Rogers stated, so they tore up all the concrete or the curbs or the isle curbs, or the parking lot which is much more expensive than where the sign is. Why didn’t they just do that all at once?

Joe Bumbleburg stated, you know, the answer to your question if fundamentally, I don’t know. I was just basing my experience on……here this gentleman can help me

Bhulinder Sodhi stated, I am the manager over there. The answer to that question is basically that is an old sign and we have to change is and we are going to order a digital so the specification of that new sign is smaller than what we have over there right now.

Joe Bumbleburg stated, the other question though is why are we not putting the sign farther back as the ordinance would require and I had said that part of that had to do with the tearing out the cement base and then the question from the director was that but you took out other areas of concrete. Why did you take out other areas of concrete but not this area?

Bhulinder Sodhi stated, ok, the size of the digital sign is a little smaller so that is another thing I just want to add in between

Commissioner stated, so he didn’t answer the question

Joe Rogers stated, now I have a question for the board which I’m sure he will be interested in. It appears to me that it is extremely clear under the sign ordinance that that sign should be brought into conformity. There are several places under 10.10 non-conforming signs that say if a sign is going to be re-constructed that it has to be brought into conformance so my question to the board is that, what would be your excuse for not forcing compliance with the ordinance.

Commissioner stated, take a walk down N. Main street and see what you see. The city’s already gave it back to them. It took them 30 years to get there right of way. The first thing they do is put a sign out there Shraders…its 6 feet off the road so were not going to police there mess.

That’s the whole deal, that’s what its all about.

Dave Stimmel stated, it’s a good point and it’s a discussion we ought to have. I’m curious Joe, they are asking for a 6 foot height setback and a 48 foot size variance.

Joe Rogers stated, correct, currently the ordinance requires a maximum of 40 square feet and I think they are at 88 square feet if I’m not mistaken.

Dave stimmel stated so its almost twice the size.

Joe Rogers stated, a little over twice the size.

Commissioner stated, that sign to me doesn’t look abnormal

Joe Rogers stated, I’m not saying that it is not an improvement, I’m not even saying that it is not attractive. All I’m saying is that you guys wrote an ordinance, here’s what the ordinance says.

Commissioner stated, my point is that this sign does not look like it is to big for what they are trying to do here. Is that something that we need to address in our ordinance?

Commissioner stated, It looks like a normal gas station sign to me and that doesn’t fit our ordinance?

Joe Rogers stated, no, it doesn’t fit your ordinance and that’s my charter to interpret the ordinance.

Commissioner stated, you make a good point.

Kevin Riley stated, the only point that I would make is that you have standards for the criteria you consider for a variance.

Joe Bumbleburg stated, the fact of the matter is that all zoning ordinances have standards. Everyone that I have ever dealt with also has a variance provision in it. By definition when you put a variance provision in the ordinance, you are granting to the board a discretion to do something different than what the strict standards of the ordinance are. Any petitioner then has the ability to come before you and say what I have is better than what is there now and will harm no one.

Joe Rogers stated, but one of the things that we require and request when someone petitions a variance is to provide us with a hardship letter as to why to complying with the variance creates a hardship. I haven’t heard where the hardship is in this case.

Dave Stimmel stated, I think the reason that at least 3 or 4 members of the board feel the way they do is a consistency issue. We had 2 or 3 signs up on North Main street. There was no way that those signs were going to get passed if it had been up to the ordinance that was unseeded at that particular point in time and the case was made and the argument was made and the city approved it basically and they had to approve them before the project work was done on North Main street that these were prior commitments that you could put your sign back no matter where there at.

Joe Rogers stated, I perfectly understand that. I’m bringing up these points because I feel it is my obligation the way the ordinance reads that they need to be addressed and what ever you guys decide, decide.

Dave Stimmel stated, I think we all knew that at the time by passing those 2, by allowing those signs that essentially we were opening a door that doesn’t seem fair to deny anybody else

virtually. There are exceptions to that too but it just didn’t seem fair to deny. Am I saying that right?

Several said yes

Joe Bumbleburg stated, and in deed structurally in the way its put together to answer you question is and to go to your point, the hardship is one here that would say these people would not be permitted the same rights that have been previously granted by the city and accordingly there is the hardship. You didn’t make it, my client didn’t make it, somebody else out there….I think Mr. Cartmell probably has his hand on that issue.

Commissioner stated, I knew that was coming.

Dave made a motion to vote

Second

Dave Stimmel stated, there were 5 votes cast and 5 votes vote in favor of the variance. The variance is passed.

 

#2800 Robert T. Novak & Rita A. Mankus; The property is located on pt lots 194 & 183, pt vacated alley in Barrs Addition and a strip of ground off the South side of Jefferson Street, located at 203 E. Jefferson Street in the City of Monticello.

Violation: None

Request: They are requesting a 28’ rear setback variance to build an attached deck on the new home.

Robert Novak stated, I was before this board in April of last year seeking variances for the home I’m building on that lot described. At that time, there was discussion, I presented my project. You the board voted on it and approved the house, front porch and attached deck. I received a building permit and had started construction on the project. The excavation had taken place and then I had the concrete guys there pouring my foundation at which time a member of the APC office that when I was before the board the last time my request was only for the house and didn’t include the deck. So basically to come into compliance, the former APC director instructed me that I had to come back in front of the board and ask for a variance so that I could put my uncovered attached deck onto my house so that’s why I’m here.

Commissioner stated, was there any kind of decision as to whether this variance request needed to be reduced in the amount based on the discussion on the deck? The board needs to be aware of that.

Joe Rogers stated, yes, the variance request was based on a deck being considered part of the principle residence which was the interpretation of the previous administrator. It is my interpretation that the deck is considered an accessory item for accessory use and therefore is subject to the accessory setback which is 6 feet verses 30 feet so the 28 foot rear setback that they’ve filed for at the time which was under the old administration, I believe really should be a 4 foot setback variance request because it is a 2 ½ foot measurement that is shown within the property line of the deck.

Commissioner stated, and that is because he has already received a setback that covers the principle structure.

Joe Rogers stated, if he didn’t have a previous variance, there would have had to have been a variance request for the house also but that variance was granted and the change in the position of the house doesn’t violate that variance.

Commissioner stated, the house is shown what as 18 feet?

Joe Rogers stated, yes 18.88 or something like that.

Dave Stimmel stated, and the proposed patio

Joe Rogers stated, that’s the uncovered deck

Dave Stimmel stated, 2.4 feet or 2.39 feet from the property line.

Joe Rogers stated, Exhibit A is the first drawing upon which he made the first variance request and you can see that the corner of that house looks like its about 19 something again I can’t read it. But Diann had determined he needed a 12 ½ foot variance request which he was granted. That would have got him a minimum of 30 feet with the variance.

Joe Dold stated, my question is that the second map which I just got mine tonight, you can see there is a retaining wall that comes out over and back toward my line, toward the lake and then back and then toward the lake again. That’s already been poured.

Dave Stimmel stated, where is your residence or property?

Joe Dold stated, I am south of them.

Joe Dold stated, instead of it having that little jog in it, it comes straight from the house to the retaining wall parallel to the property line. The contractor when he poured it, he poured 5 ½ feet away because he has concerns. So its already there and its in. My question is, if you grant this, are they going to tear that retaining wall down and move it 3 feet closer and if you do, my concern is, its going to be right up against a full grown tree on my property that shades my property from the west side. If they start chopping in there, they are going to get the roots and that tree is going to die. I think that’s why the contractor moved it back that amount. So the wall is already there and if you are going grant this are you going to tear that wall down and rebuild it?

Robert Novak stated, no the wall has been poured.

Joe Dold stated, that’s kind of a mute point. I don’t have a problem with where the wall is. Its far enough back, the tree wasn’t damaged. I looked at the root when they were digging and there was no root problem.

Robert Novak stated, at the time of excavation, the excavator had informed me that we were coming close to a tree and he said we are going to come so close to the tree that he said we might have to take it down. When we took a look at that and the excavator and my subcontractor and myself unfortunately when vester did the drawing there, it did not notate the exact location of that tree. When we took a look at the tree and where it was, it was very close to the lot line. It was our interpretation that at least half of that tree was on that side but we didn’t know. At that time I went over and talked to Mr. Dold as a neighbor, knocked on his door and asked him what his intensions were on that tree and he said he wanted to keep it so I went back and told my general contractor to go around the tree so basically where that little jog comes out at the south end of the retaining wall, instead of being I think its 2.39 feet, we actually moved it in the back side of that and it is approximately 4 to 4 ½ feet off of the lot line so we had already poured the retaining wall around the tree and that’s already in concrete. That’s set, we have the footings and we don’t have any intensions on moving that. I’m just simply coming back to go ahead, because my deck had to be approved so I’m just coming back simply to be able to run my deck up to my retaining wall.

Joe Dold stated, my concern is that if we don’t change it to what ever it is currently, it fixed in the ground, he would have a legal right to tear it down and make it farther so if he is in agreement and I am in agreement, I think we are, we just need to adjust.

Joe Rogers stated, it is my understanding that you are saying that the current retaining wall, you are planning on building the deck to the retaining wall and no further.

Robert Novak stated, correct

Joe Rogers stated, he says its like 5 ½ feet away and you say its like 4 feet away. I don’t know what is actually is.

Joe Dold stated, I just went out and measured it and I also had Jim Milligan come out and do a survey. He just did it and he has his flags in and the tree is probably 10% on his property on his property and 90% on my property.

Dave Stimmel stated, so it does overlap?

Joe Dold stated, yea just that much.

Joe Rogers stated, my question is if your only going to go to the retaining wall and I don’t know how far you really think it is but lets say if its 5 foot then your really only asking for a 1 foot variance.

Robert Novak stated, that would be correct, basically I think we both agree. The wall has been poured already and that wasn’t the issue, its just where the deck went. If we are in agreement to wherever and I would hate to go ahead and say its 5 feet when it turns out to be 4 and I have to come back but where that wall is right now, I’m fine if I can just run my deck up to that because we have already put pilings into the ground to support the deck and it is an uncovered. I basically needed the pilings because its going to kind of cantilever over the edge so according to the building code, I had to have the cement pilings poured in which are all in the ground already.

Commissioner stated, I was just sitting here thinking about it and it would be my opinion since your building new and your within a foot or two of what it should be, that it should meet the setback.

Joe Rogers stated, what kind of problem does it cause if you only bring the deck within 6 feet of the property line? What kind of problem does that cause you as far as the construction is concerned?

Robert Novak stated, it would end up, if I would go with 6 feet it would kind of end up being two things, 1 is you would have an empty space between the retaining wall. I would have to put a railing so I would have a railing and then you would have ground and then a retaining wall probably a foot and ½ to 2 feet away. The other thing is that the way that the deck is set in square foot wise, because we already have the pilings set, to gain that square foot the only other way for me to go is out but because we have everything set already and the house is actually pretty well underway, it would be very difficult to go out and put additional piling if I’d want to go out more or less at the construction time it would have been much easier when they were pouring and they could get out to the site easier. But right now it would kind of cause a hardship if I want to regain that square foot, I would have to go out and then we would have to somehow put additional pilings to run the deck farther out and this way if we could just go over to the wall where its set now, I would have my square foot, the pilings are in there appropriately for building construction purposes and everything would be fine.

Commissioner stated, the only thing we have to go by is this survey here. And if I’m looking at that survey from Vector and Associates, it says that that retaining wall is 2.3 feet off the property line.

Robert Novak stated, that was the proposed. That was where the proposed building and construction was going to be. That was the part two of when I came in the first time where that was the proposed building, proposed deck, etc and that’s where the retaining wall was supposed to go but because of the tree we just moved the retaining wall.

Joe Dold stated, the retaining wall does not conform to what is on the print.

Commissioner stated, so you think the retaining wall is 5 feet off the property line?

Joe Dold stated, its 5 1/2 . I went out and measured it from the edge toward my property that edge is 5 ½ feet.

Commissioner stated, I am not in favor of a variance like this but if your 5 ½ feet off that property line, I would say that is close enough to go ahead with what he wanting to do. Without a variance as long as you don’t encroach any closer. If your sure that’s 5 ½ feet off, survey’s can be off 6 inches. The next guys comes out there and surveys it again,…what I’m saying is that I don’t like doing something new and putting it 2 foot 3 off the property line. We want to keep distance from the property line. If in fact you are happy with where the survey is and you say his retaining wall is 5 ½ feet off the property line, I think we should not allow variance and let him build where it is. He is within 6 inches of that. I know that’s not accurate. I don’t want to allow him to build within 2 feet of the property line but I am not opposed to him building 6 foot.

Joe Dold stated, I am not opposed to where he is now. Where that wall is, I am not opposed to it. I just want to clarify because if you grant it, he could come back and tear the wall down and move it 2 ½ feet and its still very close too plus the tree.

Commissioner stated, the variance can be adjusted, you don’t have to grant a 4 foot variance. You can grant a ½ foot variance so your not married to this. You can come up with a variance size than what they have petitioned for and we have already done that once because the petition states 28 feet so all I’m saying that if the structure is 5 ½ feet away from the property line, you can consider a ½ foot variance that would get you to a 6 foot setback. It does not have to he the full…

Commissioner stated, I would be willing to vote for a variance for the existing concrete structure that is there what ever it is.

Commissioner stated, one thing that I might suggest and it would be up to you, that since there is some concern over about nobody knows the exact distance is to find out the distance before a variance is granted. It could be a surveyor, it could be…..

Joe Rogers stated, if you go that rout then does this get tabled until the next BZA meeting before it would get decided?

Kevin Riley stated, yes it would be a table. If that is what you decide. I’m not telling you that you have to decide that, I’m giving you that as an option but point being if there if some concern over the distance and you want some clarification.

Dave Stimmel stated, How did you discover that the pouring of the pilings, Mr. Novak and that patio were something you needed a variance for?

Robert Novak stated, Ms. Weaver had called me and had informed me that when I had originally came before the board, apparently that even though the board had voted that I did have a building permit for everything, she said that the original notice of advertisement that you had sent out only spoke to the house and not to the deck and because the deck was closer to the lot line than what my variance was, she said I had to come back and ask for the deck.

Dave Stimmel stated, what I don’t understand quite frankly is when I look at exhibit A, and that’s the survey that you submitted in April and you got the variance for, I don’t see any deck on there so I am curious about how you made the stretch from there being no deck to a deck that is 2 ½ feet from a guys property line on your other drawing without any permits or any approvals or any of that. You just had it redrawn and said were just going to build the thing. Is that correct?

Robert Novak stated, looking back at the minutes of that meeting, in there, there was some misunderstanding about drawings that were submitted from the April 08 meeting there was some misunderstanding about drawings that were submitted and a representative from Vestor was at

that meeting at that time and it states where apparently where the incorrect drawings were distributed to the board but then at that time the correct drawings were I guess given to everybody and they looked at that. It was referenced in the minutes of the meeting.

Commissioner stated, so this isn’t what we looked at, at the last meeting?

Dave Stimmel stated, it looks like exhibit A is dated 5/19/08 and I don’t see a date on exhibit B

Robert Novak stated, exhibit A is the original structure.

Dave Stimmel stated, ok so there was no deck on the original structure, patio?

Robert Novak stated, there was the upper one, not the one that comes farther south towards the lot line.

Dave Stimmel stated, right, you have got to admit there is quite an expansion of square footage there Mr. Novak and I guess that is what I am concerned about is that it appears that you took a variance based on exhibit A that drawing and somehow extrapolated that out to include to this proposed patio that in your drawing was going to come within 2.4 feet of another guys property. I’ve got a problem with that. I just have a real fundamental problem. The house is square on the property. And that is what I’m saying that exhibit A right here does not show that deck or that proposed patio at all.

Robert Novak stated, exhibit A was the original structure that we tore down.

Dave Stimmel stated, it was the original structure, ok, alright.

Robert Novak stated, they said that I have to submit what was there and then what we were going to build.

Dave Stimmel stated, ok, that clarifies that, I appreciate that. That does make a difference.

Joe Rogers stated, when you requested the variance, did you understand that when you were asking for a 12 ½ variance, that ,that only allowed you to get within 17 ½ feet of the property line with your structure. You had a 30 foot requirement and you were asking for 12 ½ feet so that left you with 17 ½ feet and you still didn’t stay away from the property line. Did you understand that, that was what you were asking for?

Robert Novak stated, for the house

Joe Rogers stated, ok and why did you not think that that applied to the other structure, the patio?

Robert Novak stated, well actually the original variance request I made, I came up and I went to the APC office, gave them the drawings and told them what I wanted to do and what I think ended up happening is they go ahead, at least they did for me, one of the ladies in there typed up the variance request and had signed it and I had forgot to take a look and see that it didn’t mention a separate variance for the deck. I’m not in construction trades and I just went in there and said we want to build this house. Gave her the second drawing, I said we want to build this house. She typed up the variance request and I guess an oversight on my part, I said ok that’s what I want and I signed it and it didn’t mention the deck at that time.

Joe Rogers stated, I guess I’m going to defend the unrepresented a little bit here because I came in at midstream of this case here. Diann who was the director at the time, she felt that she was not given both drawings when the original variance request was made and that’s why they typed it up for the 12 ½ foot and it was after the variance had been approved that she was finally provided with a second drawing.

Dave Stimmel stated, so when you say the second drawing, you mean the drawing that shows the existing structure and then the drawing that shows the proposed structure?

Joe Rogers stated, I’m saying that what I got from Diann was that the existing structure, this is the first time I’ve heard that this was the existing structure. I thought this was the original proposal and that’s how Diann conveyed it to me. This was the original proposal, this was the revised proposal so tonight was the first time I heard that that was incorrect. I guess what I’m trying to get was when you made the variance request and you’ve answered this question, why didn’t you recognize at that time that they were not asking for a great enough variance? That was my question.

Dave Stimmal stated, Where I’m coming from Dave is that I would support what you are saying and I agree based on what I’ve heard now, but I would also ask that Mr. Novak provide an as built drawing that shows for the record where that retaining wall ends up so that as part of the record that, that is what the exact setback is. We may just want to table it.

Joe Rogers stated, if we are going to do that, I would like it confirmed by the building inspector.

Kevin Riley stated, I guess legally if you are going to require him to submit a….if you want evidence of the setback distance is table it and give him the opportunity to bring you that evidence at the next meeting.

Dave Stimmel stated, ok, is it going to prevent a serious hardship for you to wait 30 days for the next meeting Mr. Novak to continue that construction?

Robert Novak stated, no

Dave Stimmal stated, I guess that would be my request to have an accurate drawing as to what the as built is.

Joe Dold stated, I’m not knowledgeable on this stuff and obviously I am sensitive about the property lines and that. I’m satisfied with where the foundation is. He is building a beautiful house and that would be nice. My concern is and there has been some things happen that didn’t work out clearly that what ever he puts on it well actually this isn’t what I don’t know. Are you making a deck down below or is that all just foundational stuff and the deck is going to be level with the yard?

Robert Novak stated, no we cut into the side of the hill so basically if you took a look at where you walk out the back door, the deck is going to sit down basically at dirt level.

Joe Dold stated, alright, so your coming out of the lower floor out onto the deck?

Robert Novak stated, yea there would be no upper deck.

Joe Dold stated, so there is a deck and at the end there is a wall going up, the retaining wall going up so there is not going to be anything on top of that on the ground level patio?

Robert Novak stated, no there is not going to be another patio. There will be pursuit into regulation, he will have to build a railing so somebody doesn’t walk like if they were in my yard, they wouldn’t walk right off and fall down

Joe Dold stated, I thought the deck was going to be down below but I don’t want it to have a deck below and a balcony above too.

Robert Novak state, no

Joe Dold stated, so that means that nothing is going to come closer of be blocking views or what ever from where the retaining wall is and I am satisfied with that.

Dave Stimmel stated, I think what we are looking for is a motion from the board to table this decision until the next available meeting and request the applicant to provide an accurate drawing as to how it will be structured. Is that the way I am understanding?

Joe Dold stated, with all the details because there seems to be a lot of add-on thoughts and input and stuff that it is confusing to me.

Dave Stimmel stated, Mr. Novak, it would need to include any kind of overhangs. I guess I’m not just asking for a survey, I’m almost looking for some way to tell….a side view to understand and maybe that is something you have with your house plans, I don’t know. It is still going to have to meet setbacks with the overhang and that is what I’m concerned about. Cause if there not be any misunderstanding about the overhang.

Joe Rogers stated, the setback is measured to the foundation as long as the overhang or the eve is less than 16 inches.

Commissioner stated, what I am saying is that if you have a setback variance, he can’t exceed that setback variance.

Joe Rogers stated, but the setback is measured from the foundation.

Kevin Riley stated, I think what we are saying is that we are talking about a setback from the lot line. The idea is that the setback is from the accessory structure not the principal building so its from the accessory structure so it would be the setback from where ever that ends.

Discussion going on with Mr. Novak about a drawing.

Motion:

Commissioner stated, my understanding that the petition be tabled to the March 2009 meeting with directions that Mr. Novak with submit a survey showing the existing retaining wall with the setback from the south property line.

Second

Dave Stimmel stated, ok, tabled until next meeting.

Dave Stimmel stated, the variances have been completed.

Joe Rogers staeted, on the agenda is appeal #7 which is for Pride properties and that was the description. The description under the appeal was carried over from the previous meeting and was not accurate. What you are actually considering under that appeal number are the finding of facts and conclusions abroad that you were supplied with and that really should have been what was described under appeal #7. That is what this is about.

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.

Kevin Riley stated, the appeal that pride properties filed with regard to, there are 2 lots I question that were along the lake and essentially what they were doing was appealing a decision of that I believe it was that Diann had originally made regarding whether lot 1 was a grandfathered buildable lot. There was a public herring on that last month. There was a discussion among the board. At that herring you heard from Pride Properties attorney. You did in fact vote on that appeal and you will see on the second page of the findings of fact each of your names are listed as to how you voted at that meeting. Under the state statute we are required to have writing findings of fact when there is a decision like this made. The reason it had to be drawn up this way is because we don’t actually have a form similar to the one you use for variances to fill out so what I have done is put together findings of fact and conclusions of law based on the discussion that was held at that meeting and so what I would ask is you need to review those, make sure this is the finding of the board and then we would need you to sign that second page where your name is. I will tell you that in the future, our procedure for this is that we will have the public herring and what I will ask is that the board come to a consensus. We won’t vote the first time. Once the board has a consensus as to which way their going to go, then I will draft these findings of fact and conclusions a loll and at the next meeting there will actually be a vote based on these findings of fact and that is when we would do it. So the procedure was a little jumbled this time.

Dave Stimmel stated, Consensus being what Kevin?

Kevin Riley stated, consensus being majority of the board. It can be a 3 to 2. It does not have to be unanimous. I don’t know if there are any questions on what is here.

Kevin Riley stated, what this does, is under state statute, the board has to have written findings of fact to support its decision and the reason for that is that if I am a petitioner and I want to appeal your decision to a court, then there are findings of fact and conclusions that the court can look at and say ok, this is how the board reached its decision and then the court can determine whether they agree with that or not. That is ultimately the effect. This is not to change the vote that happened at the other meeting. I want to be clear on that. I am not changing the vote, the vote is what is was 3 to 2 against.

Commissioner stated, so where is this heading? To court?

Kevin Riley stated, no not necessarily. It’s a procedural issue, state statute requires us to do it. That is why with these variances, when you see the different statements there, those are specific findings of fact that are written. The problem is when you have an appeal of an administrative officer’s decision, you can’t have a form. There is just so many different issues involved. You can’t just have a standard form. So no I don’t mean to tell you that it heading to court. I mean he is certainly entitled to appeal a decision. I don’t know if that is what they will do or not.

Joe Rogers stated, it should be noted though that he has requested a second interpretation which he has been also provided.

Kevin Riley stated, he has not formally made a request for an interpretation I don’t think filed a

Joe Rogers stated, yea to me.

Kevin Riley stated, he has filed a petition?

Joe Rogers stated, yea I have given him the first interpretation which was addressed at this meeting and then I have given him a second one.

Kevin Riley stated, I know he is still waiting on clarification on that based on what we talked about the other day so that is something where you and I will need to talk and you will need to issue a clarification statement to him.

Joe Rogers stated, ok

Kevin Riley stated, then if he chooses to appeal that then it would go to this board just the way the other one did.

Joe Rogers stated, ok

Kevin Riley stated, lets show on the record that the findings of fact and conclusions of law February 19, 2009 have been signed and that the 3 members have affirmed the decision of the executive director, 2 members have dissented from the findings of fact and conclusions of law and those signatures are shown on the findings of fact and conclusions of law. We will need to serve a copy on to Terry Smith so he has it.

Kevin Riley stated, John Powers who you all probably remember from the Herman improvement location permits, the herring that was here in December, 08. About the end of January, he mailed me a letter again wanting a herring on the improvement location permits. That I received after I had already sent him a letter stating he had already been heard on that matter. He did raise in his letter to me that this board had not issued written findings of fact and conclusions of law. I went back and looked through the minutes. Joe has looked through his file and that is correct. There was a representation in the minutes in December that written findings would be prepared and those were never prepared. Again, under state statute, we are required or you are required as a board to have written findings of fact and conclusions of law. I guess what I am telling you is that that is something that I will have to prepare and that would have presented to you at the next board meeting for consideration and then approval or revision, what ever you select. Again this will not change the vote that occurred in December. My only concern now that I think about it is, I believe there is at least a board member from December who is no longer on the board, so he would need to sign off on that as well as to which ever way he voted. We would need him at the meeting in March to get him entered on the record. My hope is that this will wrap this up because this has been going on for a long time but I statute is clear that written findings need prepared and submitted and it wasn’t’ done so it needs to be done.

Joe Rogers stated, once he receives the findings of fact after they have been approved and signed, does he have a certain amount of time to then appeal those findings.

Kevin Riley stated, that’s a good question and it’s a little unclear in the state statute because the statute says you have 30 days to file a writ of cert. with the circuit court or superior court so he would have 30 days from the day of the decision, now the question is to whether the date of the decision is the vote or is it the date that you enter findings of fact and conclusions of law. In my opinion as an attorney, if I were appealing it, I would say, I can’t logically appeal something to a court until I know what the basis for the opinion was meaning until the written findings of fact are submitted, I can’t appeal. Now obviously there is another argument to that to say the statute says 30 days from the date of the decision and the date of the decision was in December and 30 days have long since passed. Your appeal deadline has passed. You are barred from bringing an appeal. So to answer your question…I don’t know. You do have 30 days but I don’t know at this point whether it’s the date of the decision or the date of the findings of fact. My gut is that we will file the written findings of fact and he may appeal it to a court and then we will have to look at raising a defense that he’s barred because he hasn’t brought it within a necessary amount of time. I don’t know if a court is going to agree with that or not. It’s a good lesson that these things need to be done at the time of the vote rather than waiting a couple of months to do it.

Dave Stimmel stated, Kevin how does the court system work, is there any way that he would have been barred had he said, I’m going to appeal this to the court and gone up to the clerk in the circuit court and said I want to appeal the decision by the BZA. How does that process work?

Kevin Riley stated, well he wouldn’t be barred, I mean what you do is you have to file a written petition with the court. Typically you hire a lawyer to do it, put together a petition, you go into the court, pay your money to file it, its filed, put on the docket and then it goes from there.

Dave Stimmel stated, to do that he doesn’t need those findings of fact and conclusions of law.

Kevin Riley stated, that’s the hazy area.

Dave Stimmel stated, it’s not clear what is required just to file it?

Kevin Riley stated, no because the statute says that you have to appeal within 30 days of the decision. Now is the 30 days the decision of the vote or the board finally enters its written findings of fact and conclusions because if I’m appealing something as an attorney, I’m going to say….how can I appeal a decision where no written findings have been issued yet. I’m just telling you that’s the argument I see on his side.

Dave Stimmel stated, I understand that but I’m trying to understand how or what physically would have prevented him from making that appeal.

Kevin Riley stated, well nothing physically would have prevented him, he knew the vote.

Dave Stimmel stated, another words there’s no requirement that those findings of fact and conclusions go with, when he does file his appeal, they are not required to have it then?

Kevin Riley stated, well I would file it with it if it were me.

Dave Stimmel stated, I know you would but what I’m saying is if they were unavailable and you knew you had a timeline would you not go ahead and file?

Kevin Riley stated, you could but again what I’m telling you is that would certainly be an argument that the board would want to make in its own defense if it comes to that but I’m just telling you that I haven’t researched the case law but I’ve read the statute and I know what the statute says and I know its not particularly clear so to answer your question, he’s got 30 days to appeal. What date that’s going to end up running from….I don’t know.

Joe Rogers stated, but there is no requirement that he have findings of fact to file the suit.

Kevin Riley stated, I don’t know because the problem is again if I were his attorney or if I was an attorney challenging that I would say, my appeal deadline can’t start to run until this is done meaning the written findings of fact.

Joe Rogers stated, I thought the question was if I went up to the court right now without findings of fact, there not going to tell me I can’t file an appeal.

Kevin Riley stated, you’re right, they won’t tell you that. How far your going to get without it, I don’t know but no they aren’t going to dismiss the suit just for that.

Joe Rogers stated, ok

Kevin Riley stated, the by-laws and forms, that is on the agenda….

Joe Rogers stated, That is down for the next meeting. It didn’t make it for this one. I had distributed the wrong document and I think everybody except for Dave has them now because he couldn’t open them in his e-mail.

Kevin Riley stated, I won’t talk about the content of them today. I will just tell you that its done. You have proposed by-laws which are required under stated statute. I have taken the liberty of revising some of the forms that you all use. In large part the revisions were just to clarify some points but also for the petitions for special exceptions and variance to mirror the language that’s in your ordinance which will guide the petitioners and that’s what you want. Also the ballots will be revised some and again the reason for the ballots being revised is to give you all more guidance so when somebody comes in with a variance request, you can look through and know exactly what criteria your making a decision on.

Commissioner stated, I have to tell you Kevin, from day one and I know Dave _____ went through the same thing but from the very first time I ever sat down in one of these meetings, that ballot has been and continues to be one of the more confusing parts.

Kevin Riley stated, the variance ballot?

Commissioner stated, yes, of the whole process.

Kevin Riley stated, I’m not sure if this will be any better and what I’m submitting to you at the next meeting, you either accept or say no we want these changes, no we don’t like this. They are your by-laws, they are your forms. Its my take on what I think they should contain. If there is a format issue that you don’t like that you think there is a change that could be made here to make it easier to understand for me then yea I am happy to look at that.

Dave Stimmel stated, the only reason I’m saying that is that it speaks to what we’ve all talked about a little bit before and that is that some point in time it would be for everybody’s benefit and I believe even Joe’s, to sit down with you and have BZA 101, about that ballot specifically.

Kevin Riley stated, my opinion is, I think that if we can get the by-laws in place and the new forms in place. Get them adopted and then we can take an hour some night or what ever it takes. Wait until after the by-laws are in place because otherwise we will have to get back together again to do over the by-laws but what I would suggest maybe we go through each step….the petition gets filed, this is what is required when they file a petition for a variance, this is what we require when they file petition for special exception. Go through each of those requirements, go through the standards that you have to consider with variance with a special exception and then also go through the by-laws, how do you conduct a public meeting….things like that and I know some of the procedures seem like over kill, I get that but there is a reason for that method and its to make sure that things get into the record properly so that if somebody does challenge a decision you’ve made there’s no questions about whether you went through the proper steps.

Dave Stimmel stated, I have no problem with that personally.

Kevin Riley stated, my proposal would be to have the by-laws considered at the next meeting and then at some point after that, I know that is doesn’t have to be a public meeting in order for us to have an educational session but to set aside some time someday to do that.

Dave Stimmel stated, we were thinking about moving the meeting if that is ok with you.

Kevin Riley stated, I want to make sure we you know if it’s a special meeting and make sure we get notice out to the public as to the change in the meeting date.

Joe Rogers stated, and then does the cut-off date then also move?

Kevin Riley stated, it would move for that unless it is extended. Quite honestly I don’t know that you all even have an established time-line for when people submit there petitions.

Joe Rogers stated, we do

Kevin Riley stated, but its not written anywhere, its just what you do

Joe Rogers stated, right, you mean its not in the book?

Kevin Riley stated, no I’m sure its not

Joe Rogers stated, generally in the past, I don’t know who does it but its been posted on the website as to what the meeting schedule is. I know 2008 was there. I don’t know if 2009 ever made or not.

Kevin Riley stated, well the reason that it needs to be published, I have to check and see if this is going to be a special meeting rather than the regular meeting because its replacing the regular meeting so we’ve just got to make sure we cover the notice standards.

Dave Stimmel stated, so what would anybody suggest as a date? I open all week the next week.

Kevin Riley stated, I do know that the statute requires 10 days notice to interested parties so you have somebody who is filing for a variance and you have adjacent neighbors that you have to send notices to about it. They have to get that notice of the public meeting at least 10 days prior.

Joe Rogers stated, yea, which is how our schedule is set up.

Kevin Riley stated, yea but what I am saying is that if you move this meeting date, that is something you need to keep in mind.

Charlie Anderson stated, one thing Dave I might mention, I don’ know if anybody ever told Joe or not but 2 or 3 days before the APC meeting and our meeting its posted down on the windows in the courthouse.

Joe Rogers stated, when do we post?

Gayle Rogers stated, I was told the day before.

Joe Rogers stated, do we need to do something different?

Charlie Anderson stated, I didn’t see the one for the APC meeting last week.

Kevin Riley stated, I know special meetings are 48 hours. I will have to check and see what the regular meeting is. Typically if you have a regular meeting, you just post your agenda outside the door and so I will have to check and see.

Gayle Rogers stated, we also post it on the window for our regular meetings.

Dave Stimmel stated, Let’s just move it out 1 week. We are going from the 19th of March to the 26th of March.

Motion was made to move the next meeting to March 26th 2009

Second

Motion carried.

Several talking regarding the fee schedule

*****

made motion to adjourn.

seconded the motion.

The meeting adjourned.

Respectfully submitted,

David Scott, Secretary

Joe 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.”