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BZA MEETING MINUTES THURSDAY OCTOBER 15, 2009

The White County Board of Zoning Appeals met on Thursday, October 15, 2009 at 7:30 p.m. in the Commissioners’ Meeting Room, Second Floor, County Building, Monticello, Indiana.

Members attending were: David Scott, Charles Mellon, David Hall and Gerald Cartmell. Also attending were Attorney Kevin Riley, Director Joseph Rogers, Secretary Gayle Rogers and Deputy Ben Woodhouse.

Visitors attending were: Mary Crum, Larry A Norris, Ron Nearon, Kay B. Hall, Don Blair, Petra Garcia, Veronica Montero, Dustin Oqurrio, Dow Dellinger, Larry Redlin, Saundra Green, Mary Gutwein

The meeting was called to order by Vice Chairman Gerald Cartmell. A motion was made by Dave Scott, seconded by Charlie Mellon and unanimously passed to accept the meeting minutes of September 17, 2009 as written.

It was moved by Dave Scott, seconded by Charlie Mellon and carried that there be incorporated into the public hearing portion of each application to be heard this evening and to become part of the evidence at such hearing, the Unified Zoning Ordinance, the Unified Subdivision Ordinance, the By-laws of the Area Plan Board of Zoning Appeals, the application and all documents followed therewith, the staff report and recommendation on the applications to be heard this evening.

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#2829 Petra Ortiz Garcia; Lot Number Two (2) on Race Street in the Original Plat of the Town of New Bradford, now Monon, White County, Indiana.

 

COMMON DESCRIPTION: Property is located in the Town of Monon on the southwest corner of Race Street and Fifth Street at 416 N. Race Street

Violation: None

Request: Requesting an eight (8) foot front setback on the north (Fifth Street) rather than the required thirty (30) foot front setback in an R-2 zoning district to construct an 8’ x 20.3’ addition to the existing garage for a bathroom and personal storage.

BZA Minutes October 15, 2009 Continued


Director Joe Rogers gave an overview of the request:

The applicant was erroneously issued a building permit. The site location is a corner lot that was missed at the time of permit issuance. At the time of issuance this street was picked up (Race St), this street was not (5th St), therefore at the time the permit was issued we assigned a side setback to this area (5th St) which should have been a front setback. The oversight was later identified and a stop work order was issued. The project was stopped during its initial phase. The roughed in plumbing has been installed. The applicants were advised that either the addition needed to be moved so it would be in compliance, or to apply for a variance. The applicants opted to apply for a variance. The applicant is requesting an 8’ front setback for the bathroom and small storage area addition to the garage. The requirement currently would be 30’. We have received one citizen complaint about the addition. That is what prompted the stop work order and the investigation on our department’s part. He then showed the photos of the subject property and surrounding area.

Representing the petition: Don Blair, Attorney for Petra Garcia

The purpose here as has been stated by Mr. Rogers is Ms. Garcia’s application for an 8’ setback variance for real estate at 416 N Race Street. As Mr. Rogers has correctly pointed out, the lot involved is abutted by 5th St on the north, Race St on the east, lot number 4 on the south and an alley on the west. Ms. Garcia is wanting to build a bathroom addition to the north side of the garage next to 5th Street. Because the lot borders two streets, it is considered to have two fronts which require a 30’ setback. If the lot were bordered by only one street, an 8’ setback would be required. If the addition were to be built on the east side of the garage, could we go back to the first slide please, if you’d take a look at what I will call the Race St side, if the lot were to be built on the Race St side, it would result in 81’ of setback. I don’t think there’s any issue that Ms. Garcia would be entitled to a building permit if that’s where the addition were to be located because it meets all criteria otherwise. It’s got the setback requirement if you use 30’ as the criteria. As it is now there’s 89’ setback when you go to the front of the garage, from Race St. Why we are here tonight, I’ll give you a chronological sequence of what took place. April 9th of this year, Ms. Garcia applied for a building permit. There was a request for additional information by the building inspector, Dave Anderson. This request was complied with. She cooperated fully, furnished all materials requested. On May 9th the building permit and improvement location permit were issued. She immediately began construction, sewer line was installed. She has expended considerable money on the project to date, in excess of $2,000. Then, on July 28th, 88 days after the permits were issued and substantial work performed, a stop work order was issued. Petra has complied. She stopped. Has done nothing further. If this board is to grant a variance, it must find three things. One, the approval will not be injurious to public health, safety, morals or general welfare of the community. Two, the use and value of adjacent land, real estate will not be affected in a substantial adverse manner and, three strict application of the terms of the zoning ordinance will result in practical difficulties in the use of the property. Let’s address the first one. Again, I’m going to go back and remind you that, we can build on the east side, the Race Street side. We’re entitled to a permit for that. Setback requirements are met. Now, if we were to do so, what is the difference if the bathroom addition is located here or here? Will it make a difference as to that first criteria as to being injurious to the health, safety and morals of the community? Not one bit of difference. It would not make ONE BIT of difference. The same goes to the second issue. The value and use of the adjacent property is going to be substantially adversely affected. If we build on Race Street side which we’re entitled to do, wouldn’t have to be here tonight asking for a variance, if we build on Race Street side or if build on 5th Street side to the north, what difference will it make with regard to the second criteria. The same applies to the third, the strict application of the terms of the zoning ordinance will result in practical difficulties. We, Petra in good faith made her application for a building permit. She supplied all data and materials that were requested after applying for the building permit. The permit was issued. 88 days later, we’re told, no, you can’t do it, or she’s told, you can’t do it. This was after work done on the project, expenses made, money spent by her. Now you have additional criteria and I’m going to keep coming back to the issue of building it on the north side or the east side. One of the criteria is preservation and enjoyment of the property. We’re talking about not only Petra’s property, but surrounding property owners. Again, what difference does it make if the building, the addition, is on the north side, on 5th Street, or on the east side, on Race Street? It makes no difference. Is there a minimum departure from the development standards? No, there is not. Again, whether we build Race Street or Arch Street, it doesn’t matter, we’re still entitled to build on Arch Street. So what difference is it going to make if she puts her addition on 5th Street? None. Preserving the character of the area, again, what difference is going to make whether the addition is 5th Street or Race Street? None. She could build, as I pointed out, on the east side. A permit would have to be granted assuming all other criteria were met. But why should she have to do it after she was once issued a permit, then 88 days later she was told she can’t do it. It would result in, not a big hardship, but it would result in a hardship to her. She spent some money on the project, she spent some time, she spent some effort. So we’re asking tonight for granting a variance in order that Petra can build her addition on the north side of the garage. Thank you very much, I’ll answer any questions if you have any. I’ll try to answer any questions you have.

BZA Minutes October 15, 2009 Continued


Charlie Mellon: It looks to me like you’re talking about coming out there where the work’s already been done, just 8’ from the road. The next building down north of there is way back. Do you think that’s going to bother the view of people coming down that street?

Don Blair: Probably no more than it would bother the people coming down Race Street looking at it from the east.

BZA Minutes October 15, 2009 Continued

Charlie Mellon: Well, yes it would.

Don Blair: Probably no more.

Charlie Mellon: You’ve got a lot more room there on this side and you wouldn’t have to stick it out next to the road. You could put it back square with that building there, with the garage.

Don Blair: No, that’s possible. Sure it is. Does that answer your question? I don’t think it would bother them anymore than it would bother other people.

Gerald Cartmell: Dave Scott, do you have anything?

Dave Scott: No, I don’t have anything yet.

Gerald Cartmell: Dave?

Dave Hall: I don’t see where the big hardship is. It’s just that what you’ve already got done can stay there, can’t it?

Don Blair: I’m sorry.

Dave Hall: What’s the big hardship?

Don Blair: We were issued a permit on May 5th, July 28th, 88 days later, it was revoked. She spent money, she spent time, she spent effort.

Dave Hall: Is that going to be wasted, what she’s done there?

Don Blair: Absolutely.

Dave Hall: It’s all got to be taken out?

Don Blair: Mr. Rogers?

Joe Rogers: Well, it doesn’t have to be taken out. I mean, I don’t know how much of it she can use. I don’t really know. If we go back to this it’s impossible for me to tell from this photo exactly where the plumbing is accessed from the street. I don’t know if it’s coming into here and then the plumbing can just be run this way. You’re asking me a question I can’t really answer. As far as this plumbing’s concerned, we would require that it be ground level again. Any plumbing that’s above grade, we would require that it be reduced down below grade. Anything that’s below there could be left there, we really wouldn’t care.

Dave Hall: It could come around the corner?

BZA Minutes October 15, 2009 Continued

Joe Rogers: Yes, it could do that, I believe.

Don Blair: It could. I’d like to clarify just what would be required. Would that be wasted which I think was your question Mr. Hall.

Dave Hall: Well, what I’m seeing there, you’ve got to take things back down to ground level. The print, that’s not big deal. There’s no concrete poured there, right? That was my question, could this come around the front and put this room addition on the front?

Don Blair: Sure, that’s possible. But why should we have to is my question, on behalf of Petra?

Charlie Mellon: Don?

Don Blair: Yes, sir.

Charlie Mellon: One of them pictures shows that’s being built right next to the garage door. How are going to use that garage door after that’s on it? To get a vehicle in? You’re going to block it off.

Don Blair: I think that’s going to be the entrance to the garage, I believe.

Joe Rogers: (Pointing at photo) This is going to be storage area, Charlie. Is that the garage door you’re talking about?

Charlie Mellon: Oh, yeah. Okay.

Joe Rogers: This is supposed to be storage area and then the bathroom is right there.

Charlie Mellon: Was that garage built recently?

Don Blair: No, that’s an older garage. What was the year of the building on it?

Charlie Mellon: That’s all right. It looked pretty new.

Don Blair: No, the garage has been there for longer, probably longer than the zoning ordinance. It’s been there awhile.

Gerald Cartmell: Anybody in the audience have anything to say, add or take away, whatever? If you do, please come up.

Larry Redlin: My name is Larry Redlin and am a resident of Monon and I live on the caddy-corner corner of 5th and Race, so I see this all the time. I object to the variance putting it on the north side of the building. I think it obstructs from the view of the street for the other properties. You can see there next to it the houses right there in that picture from diving and I think it’s a very simple thing to put it on the east side facing Race Street. I have no problem with them installing a bathroom. I just don’t think a variance is required. I have signatures of 14 property owners in Monon, mine included, that I’d like to give to the board.

BZA Minutes October 15, 2009 Continued


Joe Rogers: This will stay as part of the permanent record.

Larry Redlin: Okay. No problem.

Gerald Cartmell: Thank you. Anybody else?

Mary Gutwein: Mary Gutwein from Monon. I live at 416 Linden Street and I’ve lived there 65 years so I’ve seen the building for a long time and I have understood that it’s on violation and it’s been built so long, since Monon’s had a building code. So it’s been put on the grandparent, whatever that means. I can’t understand, if it’s in violation, why it was ever given a permit to build onto it, because whatever they build is on violation too. It seems like it should never have been permitted to even build on. It’s too bad it wasn’t tore down when the house was tore down because it’s such an old building to even put money in. So I just disapprove of when things are on violation, then they are, don’t we live by our laws? Thank you.

Gerald Cartmell: Thank you.

Don Blair: How long has the building been there, do you know, Mrs. Gutwein?

Mary Gutwein: Pardon?

Don Blair: Do you know how long the building has been there?

Mary Gutwein: No, I don’t. But it’s been there since Monon had a building code so I think we can find out, probably. And that’s a long time.

Gerald Cartmell: Anyone else?

Saundra Green: My name is Saundra Green and I live at 509 Linden Street. And, that building has been there ever since we built our home in ’63, I know. It’s been there that long. And, my objection is, I’m probably getting off the track a little bit, but why are you putting a bathroom in a garage? I understand this is not to be used as a garage and what other problems are we going to get when they get this bathroom completed in that garage? Is there going to be other violations that is going to be coming along the way?

Gerald Cartmell: Thank you. Anyone else?

Dave Scott: Yeah.

BZA Minutes October 15, 2009 Continued

Gerald Cartmell: Dave

Dave Scott: I’m looking at the garage and there’s no legal survey with it but does the west side of the garage, does it meet the setbacks?

Joe Rogers: Yes.

Don Blair: I apologize. In the materials that I prepared, I omitted the survey. Let me give you a copy of the survey.

Joe Rogers: Let me for the record read the petition that was submitted by one of the representatives here tonight from the Monon community. This is dated September 30, 2009 to the White County Area Plan Department. Request for Variance #2829 at the corner of 5th and Race Streets, Monon, IN. Commonly known as 416 N. Race Street. Sirs: We the undersigned object to the request for variance, front setback, north side, for the addition of a bathroom. We do not object to the owners desire to build a bathroom onto the garage. We believe the bathroom can be built on the east side of the garage without a zoning variance. And this is signed by 14 residents as was indicated by the gentleman when he presented the letter to the committee.

Gerald Cartmell: Are we all done? Any other for’s or against’s?

Dave Scott: I move we vote.

Dave Hall: Second.

Gerald Cartmell: All in favor say aye.

All: Aye.

Findings of Fact

  1. The variance requested does not essentially alter the character of the surrounding area. 2-2
  2. The granting of this variance will not be injurious to the public health, safety, morals and general welfare of the community. 3-1
  3. The use and value of the area adjacent to the property included in the variance request will not be affected in a substantially adverse manner. 2-2
  4. The granting of the variance is necessary for the preservation and enjoyment of a substantial property right possessed by other property owners in the same vicinity and district but which is denied to the property in question. 4-0
  5. The strict application of the terms of the zoning ordinance will result in practical difficulties in the use of the property, provided that the situation is not self-imposed or that the need for the development standard variance is not based on a perceived reduction of, or restriction on, economic gain. 4-0
  6. BZA Minutes October 15, 2009 Continued

    The granting of a variance would be a minimal departure from the strict application of the provisions of the zoning ordinance. In other words, the variance will be the minimum necessary to permit a reasonable use of the land and building. 1-3

Result: Denied; 0 grant; 4 deny

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#2830 Four Soar LLC; A tract of land located in the Northeast Quarter (1/4) Section Twenty-eight (28), Township Twenty-eight (28) North, Range Three (3) West in White County, Indiana.

 

COMMON DESCRIPTION: Property is located at 6586 N East Shafer Drive, Monticello

 

Violation: None

Request: Requesting a 13’ front setback to add a deck, rather than the required 30’; a 12’ rear setback instead of the 20’ requirement to build an addition to the home; and a 7’ side setback to build a deck rather than the required 8’ setback

Joe Rogers explained the request showing photos and the survey on the wall. He read a letter in support of the request and said there were no complaints received by the Area Plan office.

Dow Dellinger and Larry Norris were present to represent the petition. Mr. Dellinger pointed out that this is an odd shaped lot; the owner is turning a “junk” cottage into a nice structure; the deck does not impede anyone’s view as one deck is located on the lake side and one on the road side; the proposed deck on the north side will be further from the property line than the existing house; the addition is to add room inside to make the steps safe; without the variance there will be no deck space to enjoy the land and the view of the lake; the variance will allow improvement of the foundation of the structure.

Dave Scott made a motion to vote with a second by Charlie Mellon.

Findings of Fact

  1. The variance requested does not essentially alter the character of the surrounding area. 4-0
  2. The granting of this variance will not be injurious to the public health, safety, morals and general welfare of the community. 4-0
  3. The use and value of the area adjacent to the property included in the variance request will not be affected in a substantially adverse manner. 4-0
  4. The granting of the variance is necessary for the preservation and enjoyment of a substantial property right possessed by other property owners in the same vicinity and district but which is denied to the property in question. 3-1
  5. BZA Minutes October 15, 2009 Continued

    The strict application of the terms of the zoning ordinance will result in practical difficulties in the use of the property, provided that the situation is not self-imposed or that the need for the development standard variance is not based on a perceived reduction of, or restriction on, economic gain. 3-1
  6. The granting of a variance would be a minimal departure from the strict application of the provisions of the zoning ordinance. In other words, the variance will be the minimum necessary to permit a reasonable use of the land and building. 4-0

Result: Continued; 2 grant; 2 deny Petition will be continued to next meeting November 19, 2009 at 7:30 pm.

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#2831 Ronald L & Myra J Nearon; Lots Numbered Eighteen (18) and Nineteen (19) in

Gano’s Camp Second Addition in Monon Township, White County, Indiana; and the 5’ x 151’ walkway between lots 18 and 19.

COMMON DESCRIPTION: Property is located at 3634 E Bailey Rd, Monticello

Violation: None

Request: Requesting a 14’ rear setback rather than the required 20’ setback to build a detached garage in an L-1 zoning district.

Joe explained the variance with photos and survey. One person came into the

office to inquire about the variance, but showed no opposition.

Ron Nearon was in attendance to represent the request. He answered board members’ questions. He said to set the garage square with his house, he needs the variance, also to make it easier to pull off Bailey Road and into the garage. To move the garage back the six feet he would have to remove large trees and turn the garage. He produced pictures showing other garages down that private road that are 5’ and 10’ off the road. He will have one corner of his garage 27’ off the road (7’ more than required), so it is just one corner that will be within 14’ of the road. If he moved the garage straight back six feet, the garage would block his view of the lake from the picture windows in the main living area of his home.

Dave Scott moved to vote, Dave Hall seconded.

Findings of Fact

  1. The variance requested does not essentially alter the character of the surrounding area. 4-0
  2. The granting of this variance will not be injurious to the public health, safety, morals and general welfare of the community. 4-0
  3. BZA Minutes October 15, 2009 Continued

    The use and value of the area adjacent to the property included in the variance request will not be affected in a substantially adverse manner. 4-0
  4. The granting of the variance is necessary for the preservation and enjoyment of a substantial property right possessed by other property owners in the same vicinity and district but which is denied to the property in question. 4-0
  5. The strict application of the terms of the zoning ordinance will result in practical difficulties in the use of the property, provided that the situation is not self-imposed or that the need for the development standard variance is not based on a perceived reduction of, or restriction on, economic gain. 2-2
  6. The granting of a variance would be a minimal departure from the strict application of the provisions of the zoning ordinance. In other words, the variance will be the minimum necessary to permit a reasonable use of the land and building. 4-0

Result: Continued; 2 grant; 2 deny Petition will be continued to next meeting on November 19, 2009 at 7:30 pm.

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Joe Rogers spoke to the board regarding a sign violation case. Mr. Tom Woods of The Rose Company is in violation of the sign ordinance stating signs may not be posted on utility poles. Joe sent warning letters, removed the signs from poles and sent a citation. All correspondence has been ignored. There has been no communication from the violator. Dave Scott motioned to turn the matter over to Kevin Riley to file suit. Charlie Mellon seconded. The motion passed with a unanimous 4-0 vote.

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Joe informed the board that the Area Plan budget has been cut for 2010 by 16%.

In order to comply with the cuts, the Area Plan office has proposed the meeting

schedule for 2010 be cut by two meetings and requests a start time of 7:00 pm

rather than 7:30 pm. Joe explained that the Area Plan Commission adopted their

proposed schedule and 7:00 pm meeting time earlier in the week. Gerald

Cartmell stated he can not meet earlier than 7:30 pm. Dave Hall moved that the

meeting time remain at 7:30 pm, Dave Scott seconded the motion and it passed

unanimously, 4-0. There was some discussion regarding having two fewer

meetings. Dave Sott moved to accept the proposed meeting schedule with a

second by Dave Hall. The vote passed with 3 in favor, 1 opposed.

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Gerald Cartmell adjourned the hearing at 9:00 pm.

BZA Minutes October 15, 2009 Continued


Respectfully submitted,

________________________________________

David Scott, Secretary

Board of Zoning Appeals

________________________________________

Joseph W. Rogers, Director

White County Area Plan Commission

 

Document Prepared By: Gayle E. Rogers, 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.” ________________________________