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The White County Board of Zoning Appeals met on Thursday, February 20, 2003 at 7:30 p.m. in the Commissioners’ Meeting Room, Second Floor, County Building, Monticello, Indiana.

Members attending were Gary Barbour, David Scott, Carol Stradling, Jerry Thompson and David Stimmel. Also attending were Attorney Jerry Altman and Director Diann Weaver.

Visitors attending were: Mark Swanson, Joe Bumbleburg, Kim Berenda, David Berenda, Charles Mellon, Keith Fafarman, Gregory Moore, Grace Oiler, Jim Mann, George Loy, Jeff Walker, John Hawkins, Joseph Pala, Rob Bartlett, Jay Clawson, and Matt McQueen.

The meeting was called to order by President Jerry Thompson and roll call was taken. A motion to dispense with reading and approve the minutes of the November 21, 2002 meeting. Carol Stradling requested that the December and January minutes be tabled until next month. Gary Barbour seconded the motion and carried unanimously. Attorney Altman swore in all Board members and audience members.

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#1 Toledo, Peoria, and Western Railway Corp., Right Angle Media, Inc., and Hawkins Outdoor Advertising, LLC; Appealing the decisions of the White County Area Plan Commission and Common Council of the City of Monticello, Indiana in refusing to issue and/or denying their application dated 8/23/02 for the issuance of an improvement location permit and certificate of occupancy and require the White County Area Plan Commission to issue the applicable improvement location permit and certificate of occupancy to the appellants. Continued from January 16, 2003 meeting.

President Thompson asked, Jerry do you want to go first or do we want to start with the applicant?

Attorney Altman stated, really the only thing I have to give to the board is that the applicant has filed a notice of appeal. We are setting as we always do as judge of the facts in this situation and applying the law to that fact. They are here tonight to present the appropriate and I guess I’m only saying this not because of the interpret your position. Maybe the city can do the same thing interpreting that. I’m just trying to draw it kind of to analyze situation that we are often customary faced with. This is just a little bit different, but much similar to what we do.


Determining facts, finding of facts, we issue a decision and that is the situation based on the evidence we have before us.

President Thompson asked , is there anyone present for this? Yes sir.

Keith Fafarman stated, yes, I’m Keith Fafarman and I’m an attorney from Lafayette. I’m here representing Toledo Peoria and Western Railway Corp, Right Angle Media, Inc., and Hawkins Outdoor Advertising, Inc. LLC in this meeting. Just to give you quick factual background of why we are here. On 8/23/02 the appellants submitted to the White County Area Plan an application for a location improvement permit and Certificate of Occupancy to erect an off premises sign on real estate by the railroad. With regards to the issuance of the improvement location permit White County Zoning ordinance specifically provides in Section 7.1003 that after receipt of the information required for an improvement location permit the plans commissioners designated administrator shall review the standard sets in this ordinance. If the applicant has met all required standards then within 3 days the improvement location permit shall be issued by the designated administrator. Section 7.1005 then goes on to provide that if any of the major elements are clearly out of line with standards within 3 working days issuance of an improvement location permit will be denied with a written statement specifying the reasons for the denial.

Basically the reason we are here is that on 8/23/02 an application was submitted to the Area Plan Commission and nothing happened. Well I shouldn’t say nothing happened things did happen. On 8/26/02 the Area Plan Commission informed Mr. Walker (Jeff Walker) one of the principals of Hawkins Outdoor Advertising that the application that he had filed on 8/23/02 met the requirements of the White County Zoning Ordinance, but he was also informed that he would need to apply for a sign permit with the City of Monticello. When Mr. Walker went to the City of Monticello City Hall, he was informed by the Mayor’s office that the Citys Fire Chief handles all of the permits. On 8/30/02 Mr. Walker had a conversation with the Monticello Fire Chief and he informed Mr. Walker that he had all necessary information for the issuance of a sign permit and that he needed to attend the Monticello Common Council meeting on 9/16/02 about his sign permit. However, there is no ordinance saying that he needed a sign permit, but we will get to that in a few moments. Mr. Walker on behalf of the appellants attended the 9/16/02 meeting of the Monticello Common Council and Mr. Walker was informed by the Monticello City Attorney that no action would be taken at that meeting regarding the sign permit and it would be taken up at the 10/8/02 Monticello Common Council. There was a plan here apparently. On 10/2/02, in other words after the 9/16/02, but before the 10/8/02 meeting the City of Monticello suddenly adopted an ordinance #2002-12. This ordinance very simply prohibits off premise signs and required sign permits. Prior to the adoption of this ordinance on 10/2/02 the City of Monticello had no ordinances prohibiting off premises signs and billboards. They had no ordinance requiring sign permits in area zones A-1. The area in question is zoned A-1. Indiana law is very clear on this that an application for a building permit has to be decided under zoning requirements in affect at the time the application is filed.

I will quote here from a case of Board of Zoning Appeals of Ft. Wayne vs. Shell Oil Co. in 1975 cases. The right to use property in accordance with prevailing zoning ordinances occurs upon the filing of an application for a building permit. An ordinance of substance character can not later operate to divest such right. In another words with regards to the application for the billboard issue ordinance 2002-12, which was adopted on 10/2/02, is meaning less totally irrelevant. It was adopted after the application was put into effect. However, on 10/8/02 the Monticello Common Council refused to issued the appellants a sign permit based on the ordinance which was passed after they were told to come back to a future meeting. The appellants are entitled to their improvement location permit. At the time they filed their application the zoning ordinances and the ordinances in effect provided that in an A-1 area they are entitled to erect a billboard.

The City of Monticello on the date of last months hearing filed with the Board of Zoning Appeals their position on this and in it they basically state, four reasons why the appellant are not entitled to their location improvement permit. 1. The site plan that was submitted with the application that the sign would actually be in the street right-of-way. I don’t know how they came up with that. The section 4.6002 of the zoning Ordinance requires that all off premises signs be 10’ from the right-of-way. The site plan that was submitted and that is attached to the first filing that we did. The site plan shows that the sign is going to be located 18’ from 6th Street. That has to be the right-of-way because obviously it if was 18’ from the road edge as the City of Monticello is claiming, the sign would be in the right-of-way and could not be done. There is nothing on the site plan to show that it is 18’ from the roadway. It shows 18’ from 6th St, which would be the 6th Street right-of-way and therefore the sign does comply with the setback requirements of the Zoning Ordinance. 2. The City of Monticello claims that the plans submitted by the appellant would have too many signs to be legal. Section 4.6002A of the White County Zoning Ordinance says that outdoor advertising can have no more than 2 signs per facing. Two signs per facing, it does not limit anywhere the number of facings that the billboard structure can have. The city of Monticello was correct that the plan provides for four signs. The sign structure has two facings with two signs each for a total of four signs, but still only two signs per facing. Again there is compliance with the Zoning Ordinance. 3. The City of Monticello also raises that the permits can not be issued in this case because Ordinance 2002-12 doesn’t allow billboards, but as I previously discussed with you all that ordinance was passed after the application was filed, and therefore, that ordinance can not be used as a bases to deny the application. 4. The last reason advanced by the City of Monticello why the permit should be denied is attacking the adequacy of the site plan that was submitted by the appellants with their application. The City of Monticello reasons is that the site plan that was submitted was not drawn to scale. There is no argument here the site plan that was submitted was not drawn to scale, however, the Area Plan Commission has never required site plans to be to scale, it maybe in the ordinance, but it has not been required.

Mr. Walker came up to the Area Plan and reviewed the building permits that were issued during 2002. It was a total of 165 permits were examined and of that 14% did have site plans drawn to scale. 81% had site plans that were not drawn to scale and low and behold 5% did not even have site plans. Of the reviewed permits only 1 was for a sign and that was #13589. That site plan was not drawn to scale. In reality the City of Monticello rejections to the billboard are not based on the zoning ordinance, not based on the statue of an ordinance that they passed after the fact. The City of Monticello filed on 2/16/03 what their true problem is with this. In it they say the sign proposed by appellants would be more property located adjacent to an Interstate Highway. In other words what Monticello is saying we don’t want a billboard in our town, however, billboards at the time that the application was submitted were allowed and just simply because the town decides they don’t want it that is not a bases for the denial. There appears in this case to have been various discussion between Area Plan Commission and the City of Monticello on how the permit can be denied. When it was proper to be approved. Under 42 US Code Section 1983 a persons property rights are protected on the constitutional law under the 14th amendment of the constitution and a violation of those rights by governmental agents or by governmental authority is a violation of federal law that does lead to a claim brought under 42 US C 1983. It would be the appellants hope that is not the avenue that they have to take in this matter. However, if a permit is not issued they would have no alternatives but to pursue this matter both through the Indiana appeal process to the Circuit Court and to the Court of Appeals, but also to bring independent action in Federal Court for violation of their rights under section 1983. It would be all of hopes that could be avoided by the BZA recognizing that the Area Plan Commission acted improperly by not issuing the permit in question. Thank you.

President Thompson asked, does anyone else care to address the board?

George Loy stated, I’m attorney George Loy, I represent the City of Monticello, which supports the Area Plan Commissions original denial of this sign permit? The Area Plan Commission had no choice but to deny this permit for the simply reason, it did not comply with the minimum requirements of the White County Zoning Ordinance. It is extremely important that all applications and all site plans be at least up to the minimum standards of your own ordinances and be closely scrutinized for the reason of, once a sign like this is in the ground, it will not be moved. It is there as a permanent fixture for all to see and the only way it is going to be moved if it is in the wrong place is at the County’s expense. If they made an erroneous rating of this application, and I assure you had the Area Plan Commission approved this application right now, there would be at least the pedestal in the ground. With the leading edge of the billboard about 18’ from the edge of the roadway because that is what their plan calls for. Does everybody have a copy of his or her pencil sketch not to scale drawing? Please take a look at that because for this very significant structure they hastily put together. This drawing by their own admission is not to scale. Your zoning ordinance requires, and it’s not permissive, but it is required that all applications must be accompanied by a drawing to scale. Now why is that? If this would have been approved and the sign installed with the leading edge 18’ instead of the 30’ which it has to be. Which is explained in my response, but I will elaborate a little bit. If it were installed and Don Ward for instance the County Engineer went out and say wait a minute this is way to close to the roadway, it should be the 20’ from the roadway and you have to go 10’ additional beyond that. You know what their response would have been. The County approved it, so there is the plan right there. This plan is so vague if its not to scale and it is so vague, it could mean anything they want it to mean. Tonight they are asking you to believe that 6th Street drawing is the actual right-of-way not the paved portion the right-of-way. They have no idea what the right-of-way was. Sixth Street right-of-way is 60’ wide the paved portion is 20’ wide, therefore, Diann has the plat and I have it with me, but Diann has the original plat of 6th Street. It is in her office. The dedicated right-of-way of 6th Street extends 20’ beyond the actual paved portion, therefore the leading edge of the sign should be 20’ + 10’ or 30’ from the paved portion and there is no way that drawing can be interpreted to mean anything other than 6th Street as it appears and 18’ is to close. Several years from now and its going to happen 6th Street is going to be widened. It’s an 18 million-dollar project cooperative project between the County and the City with Federal funds. It is going to happen.

Attorney Altman stated, Mr. Loy, I’m interrupting here a minute, but for the record. Mr. Loy is making reference to photographs that are in the Commissioners office. On the walls are the photographs of how the 6th Street will be extended and enlarged for a 3-lane highway. The pictures are there, the maps it shows a little more details, and those will be incorporated into the meeting tonight as evidence.

George Loy stated, thank you Jerry. The Top is the before or currently existing roadway that is down by White point Marina right before you get to the Beach. The bottom photo is what the work will look like when completed. The project calls for expansion of 6th Street all the way from Gordon Road to Indiana Beach. It will be 3 lanes. It’s an 18 million-dollar project, and it is a matter of public record. It is an application pending before the federal government. It is being promoted by Steve Buyer. When that road is expanded in this same area where this sign is proposed to be erected, I assure you if the leading edge is where they propose to put it part of that 18 million dollars is dedicated to paying for damages for removal of property that has to be removed and if that sign is put where they propose it. The County would have to pay for moving that sign because they consented to the application, they approved an application for a sign that should not have been put there. There is a good reason why it is required that site plans be to scale for these reasons. Their argument is, yes we agree it’s not to scale so what. That is not a legally viable argument. You can not make that argument in court and I’m sure Keith has never represented a client before that said yea my client committed the offense, but he is not guilty until you catch everyone else. That does not fly in court. We are calling them on it, the County did not grant the application. They had good reason not to. This drawing really does not give you any information what so ever. This is not a minor structure it is going to be there for quite sometime. The other objections that were raised was the right-of-way. That is first and foremost, it is too close. The facing issue, I think this is a real issue.

The ordinance says no more than 2 signs per facing, and maybe that makes some since when you have one facing here and one facing here exactly perpendicular, perhaps that is a facing and this is a facing. Take a look at their plans it is angled. If your ordinance makes any sense they could run it out this way and consider it one facing. Stack another one up and that is another facing, or totem pole facings. I think this is a four facing sign, but at the vary least you have to expect a structure such as this, which is more than someone’s backyard patio to meet the minimum requirements. As far as our city ordinance is concerned, that is a totally separate issue. Your determination tonight is based upon and APC's determination is based upon the County Zoning Ordinance. They simply did not abide by the minimum standards. They could have and they could reply if they want to, but there is no way that anyone should be able to submit an application with a drawing like that, which really tells you nothing, which allows them to come tonight, and oh we mean that is the right-of-way. We will install it later and say no, no that is the paved portion of the road, you really don’t know what it means. If it is not to scale, it is entirely meaningless, should have been denied, and was properly denied.

Keith Fafarman stated, first of all I think Mr. Loy was trying to be a little deceptive in trying to sway the board here when he just made the statement, that of course the appellant can put in a new application. Of course though under the new application Monticello new ordinance which says no billboard would now be applicable, so Mr. Loy’s statement that well they could just submit a new application is pretty much a throw away. A new application could not realistically submitted in this matter because now the ordinance of Monticello would say no billboards. With regards to Mr. Loy asking for strict compliance for the site plan. It must be remembered when you look at that site plan the distances are all given, it may not be scale, but all of the relevant distances are provided in the site plan. In the law we have a maxim and it basically says it is something that you learn in your first day of law school. It pretty much says that the reasons for the rule doesn’t apply, don’t use the rule. The reason for the site plan rule is not to have a site plan that looks pretty, its so somebody can look at it and determined the applicable distances and the locations. Here the site plan map that was provided gives all of that information. Every reason why a site plan map is required, the information there. Finally, Mr. Loy tries to say that when he at least looks at the map he say 6th Street means the paved the surface and not the entire right-of-way. However, the diagram doesn’t say 6th Street pavement. It says 6th Street, and legally the street is the entire right-of-way as far as the city rights under that or any municipality’s rights. Thank is all I have to say. Thank you.

President Thompson asked, does anyone else care to address this? Sir back on your numbers you were throwing out a lot of numbers. Did I hear you right say that only 18% had a to scale site plan?

Keith Fafarman stated, yes, when Mr. Walker reviewed the site plans at the Area Plan Commission Office about 2 weeks ago. He looked at 165 application and this was on February 3, 2003. He reviewed 165 applications. Of those 23 did have applications drawn to scale and on exhibit C on my most recent filing I actually do provide the permit numbers that were to scale. Nine applications had no site plan drawings at all and 133 of 165 contained drawings that were not to scale.

President Thompson asked, you say site plan explain that to me.

Keith Fafarman stated, the site plan map would be the map showing the location of the project and the relevant distances for set backs as required by the zoning ordinance.

President Thompson stated, relevant or specific. With a licensed Surveyor’s seal upon that. Is that what you are calling a site plan?

Keith Fafarman stated, no, I’m not calling a site plan the architect plan for the structure.

President Thompson asked, how many of them had architectural plans then?

Keith Fafarman stated, Mr. Walker?

Mr. Walker stated, 23. Well not all of them had architectural, some people drew theirs drawings to scale. There were several in there that had architectural drawings and.

Keith Fafarman stated, so we are correct in saying the ones that you examined only 23, no more than 23 would have had architectural plans to scale.

Mr. Walker stated, yes, the other drawings were not to scale.

Carol Stradling stated, I just want to clarify this then because I know I have looked at more than 23 surveys where we can identify and locate the building the projected building on a piece of property and identify how far it is from the property lines. I know I have seen more than 23 just in the last 3 months.

President Thompson stated, there is not a one right here that doesn’t have a licensed surveyor’s stamp and signature on them.

Mr. Walker stated, when I looked through the files what I looked for was when someone came in and applied for a room expansion or what ever the drawing was it to scale. That is what I used. There is a lot in there that had surveys with stamps on them, and the drawings were not to scale.

Carol Stradling stated, from where I’m sitting a survey would tell me a little bit more than this and these dimensions of your sign don’t tell me as much about where you are locating it on the property, as a survey would. I would much rather see a survey where you are locating this sign than I would how tall the sign is. All of that is important, but when you talk about to scale and we are talking about distances from property lines and what is within your property and what you are expected to do. I would rather see a survey than I would an architect scaled drawing of the building. To me we get that more than 18% of the time and certainly when we sit here and there is something in question we have a certified surveyor drawing of the property. We may not have an architect drawing of the building, what the roof is going to look like, elevations, that kind of thing, door frames are going to look like, but we know where that building is going to sit on that property. What you showed us, also to back up just a little bit. I don’t know how many times we have had people in here saying they thought their property started at the centerline of the road or they thought their property started at the edge of the roadway and they built according to that. Some of them know where the right-of-way is, but many people don’t. Your drawing doesn’t do anything to say this is the edge of the roadway, this is the edge of the property line, this is the measurement from the centerline. If you had noted that on there and taken the time to do a survey and to improve the drawing, so we could look at an appropriate drawing tonight to scale or not to scale, but otherwise indicated where your measurements were taken from, rather than spend the time going through the records and counting how many you thought were in error. I think I would feel better looking at it. I still don’t know other than what you are saying that we have an appropriate drawing here, you have done nothing to say that is from the edge of the roadway or that is from the right-of-way. You are just saying we are assuming. We can not assume in this position that everybody is talking about the same thing. All of us up here have heard different people say they assumed it was from the centerline, they assumed it was from the edge of the pavement. They have built in the wrong spot, and we have had people tear things down at their expense. We have granted variances when it doesn’t seem to affect the over all property. We have granted variances when that has been required. With an 18 million-dollar road project going on I’m not looking at anything that would tell me the variance should be approved.

Keith Fafarman stated, I guess I hear what you are saying as far as you can’t tell whether if it was going to be in the right-of-way or not in the right-of-way. I think you need to look at this from the current perspective of where we are at right now. Even if the drawing or even if Hawkins Outdoor Advertising was mistake as to the width of the road right-of-way, and was only using the road and not the whole right-of-way. However, the point is at this point they know about it. So where the sign is going to go is going to be within the required setbacks from the road right-of-way.

David Stimmel asked, is this just a matter of amending the application or the drawing? Is that all we are talking about?

Jeff Walker stated, I drew the map and we are in the sign business. We have about 25 signs and we don’t build in the right ways. It is our interpretation if we put a sign up in the right-of-way we could be responsible for moving it. There is no reason for us to put a sign in the right-of-way.

David Stimmel, stated, I guess I have a question for Mr. Loy. Is there going to be additional right-of-way to purchase to the improvements to 6th Street?

George Loy stated, there likely will. In the area we are talking about I don’t know. I assure you as I said before if the sign is put with the leading edge at the 18’ from the road and the county approved it. It would have to be moved and it would be at the County’s expense because you consented to it.

Keith Fafarman stated, I guess the issue is the sign is not being put 18’ from the road. It is being put 18’ from the road right-of-way.

Carol Stradling stated, no, I believe what Mr. Loy is saying is with this expansion even if it were put 18’ from the right-of-way. Down the road when we purchase that additional property to widen 6th Street that sign would have to be moved and then it would be at our expense.

George Loy stated, correct.

Carol Stradling stated, I’m not sure if that is an issue tonight. It certainly is an issue….

Keith Fafarman stated, so what you are basically saying is to deny a person his property right to avoid a future condemnation cost.

Everyone responded with a no.

Carol Stradling stated, I’m not sure that is an issue tonight and I’m not sure you want to look at this as a variance or you want to try to fight this.

Attorney Altman stated, it is not a variance.

George Loy stated, they are appealing the original denial.

Attorney Altman stated, the sign is on the railroad right-of-way proposed.

Keith Fafarman stated, it is on the Railroad right-of-way.

President Thompson stated, let's turn the tables a little bit. You three gentlemen here in the front row. This sketch that we have in front of us. If that were your property would you have accepted that guestimate about where approximately it would set?

Jeff Walker stated, if somebody would have submitted it to me and I was the other person and I had a question when I handed it to them and I looked at it and said well does that mean its all 6th Street through the right-of-way or is it just the street. I would say what it. I would have asked that question. I went to Area Plan to review it and it was fine and the fire chief for the city reviewed it said he had all of the information he needed and at no point and time did anyone say this would be a lot better if you would get a little bit more information. We are not sure what you are talking about. We went to the meeting, we didn’t even get any information about why this was denied for 6 months. We didn’t go to the city meeting and during that meeting they said the drawing is not right, we don’t know anything about it they just said there is an ordinance and there are no signs allowed. You don’t have a choice, so talk about turning the tables that is the tables. That is what we were dealt with. We submitted it and at no point and time did somebody come and say I need more information. If I was the person and I had question on about that, I would have asked a question.

Carol Stradling stated, one of the things I have heard, I believe you understood at the last meeting that was a question, and I still haven’t seen it addressed in a written format.

Keith Fafarman stated, I guess the most important question, is while the application process is going on was nothing was said, well we would like a little more information on your site plan or we would like to make sure that you are talking 18’ from the 6th Street right-of-way and not 18’ from the 6th Street pavement. That wasn’t what happened. What happened was there was a deliberate process by the Area Plan Commission and the City of Monticello to basically say let's kind of delay these people, let's stall them and let's pass an ordinance that say that you can not do it.

George Loy stated, that has nothing to do with these people. You can address that to the city. I will be happy to talk to you about, the county has nothing to do with the Monticello City ordinance. Stop diverting attention away from this totally efficient and unimportant. This tells you nothing. The 18’ is just for starters, you can not tell where anything is on this sketch.

Gary Barbour asked, you say you have 25 other signs, where are they located?

Jeff Walker stated, they are in Lafayette.

Gary Barbour asked, what kinds of drawings do you submit to Tippecanoe County for signs?

Same type of thing?

Jeff Walker stated, yes.

Director Weaver stated, I have one thing I would like to say. I do not agree with the statement that was made that 3 days after application was submitted that you needed to go to the City. That is not true. I personally told you at the time the application was brought into the office that you had to go through the City. At the time it was submitted. It was not a complete application because that is City approval was not there. I personally told you that when that information was submitted.

Keith Fafarman asked, might I, Miss Weaver ask you what the bases for at the time for requiring a sign permit from the City of Monticello?

Director Weaver stated, it is my understanding that the City of Monticello has an ordinance requiring that and it is has been a standard procedure for the Area Plan to require City approval for construction within the city for many years. I have been in the office approximately 10 years, and we have done it consistently since I have been there.

Keith Fafarman stated, but you can’t point to the ordinance or the regulation that requires that.

Director Weaver stated, I do not have that ordinance in my office.

George Loy stated, I can confirm that is the practice, so is to keep people out of City Street right-of-ways. As you are attempting to do.

Keith Fafarman stated, so Mr. Loy…

George Loy stated, I’m not going to argue with you.

Keith Fafarman stated, I’m not going to argue with you, I’m just asking a question. What you are saying it was a practice of the City of Monticello to require sign permits, but there was no ordinance requiring sign permits?

George Loy stated, we have ordinances pertaining to signs. The problem with your application was when, you were not at the meeting, and this gentleman was. When they came in they asked permission for a sign adjacent to a city street. They gave us this site unseen having not seen it before hand and this was simply insufficient information.

President Thompson stated, Mr. Bumbleburg.

Joe Bumbleburg stated, yes sir.

President Thompson stated, you are very familiar with Area Plan of Tippecanoe County.

Joe Bumbleburg stated, yes, but I will have a problem with you are going to ask me about this case. I have open files in the office where I represent Hawkins Outdoor Advertising. It is a conflict of interest.

President Thompson stated, okay, thank you.

Joe Bumbleburg stated, I’m sorry, I would like to help you, but I can’t in this case.

Director Weaver stated, I would also like to point out the statistics that have been presented to the board tonight regarding that permits the were reviewed in the office. Part of the reasons that some of the permits do not have site plans in them, since the building inspector has taken over the permits, some permits do not require a site plan because they are not altering the outside structure. They are only interior and there is not a site plan required for those types of permits. Secondly, some of the site plans are not located within the file because of the size of the site plan they are in another location within the office, and there was none of those requested to be seen. So I do not believe that this information is accurate. I also would like to point out that the drawing that was submitted exhibit D that Mr. Walker was informed at the time he pulled that out and asked us to make a copy of that. He was informed at that time that it was erroneously put in that file. This is a drawing that was pulled out of a permit on a sign that the BZA approved through with a variance that had a survey done on it. He was told at that time that this was not what was approved and this is not what the permit was applied for. Yes it was in the file, but it was by error. It should not have been in the file. We provided him a copy of the staff report of the Board of Zoning Appeals had with a copy of the survey attached to the back of it and they did not bother to let the board know that.

Keith Fafarman asked, if I may ask a simple question of Miss Weaver. Miss Weaver, in your experience as Director of Area Plan Commission, have improvement location permits been issued with applications that did not have a site plan drawn to scale?

Director Weaver stated, yes they have. I will not deny that. Yes they have.

George Loy, stated, which is not an excuse.

Keith Fafarman stated, I guess my question is. This is a quick follow up question. I guess why were those improvement location permits issued, if the site plans were not drawn to scale.

Director Weaver stated, I could not answer that.

Keith Fafarman, stated, was the issuing authorities aware at the time that site plans were not to scale.

Director Weaver stated, the issuing authority prior to 2001 would have been myself.

Keith Fafarman asked, were you aware that site plans were not to scale when they were issued?

Director Weaver stated, yes I was.

Keith Fafarman stated, you were.

President Thompson stated, I do not know when we have approved anything that did not have an official survey site plan presented. We have 1,2,3,4,5 variances to address yet tonight and each one of them have one in our packets. Is there anymore discussion?

Director Weaver stated, might I also state one thing that has not been brought up that is a major factor in this situation, the reason that there was no action taken on this building permit application and no letter sent out by the Area Plan Commission. The Area Plan Commission no longer issues building permits in White County. My signature does not go on any building permit in this County.

Attorney Altman stated, that is because of the adoption of the ordinance that supercedes.

Director Weaver stated, that is correct.

Attorney Altman asked, were they told at the time?

Director Weaver stated, I don’t believe they were.

President Thompson stated, is there anything more discussion on this.

Director Weaver stated, let me take that statement back. They were not told that at the time they made application, they were told that before this appeal was filed before us.

President Thompson asked, is there any comments or questions from the board?

Carol Stradling asked, do you have a survey of the property, do you have a site plan, and do you have a more developed site plan?

Jeff Walker stated, we have looked at the survey in the surveyor’s office to determine the property lines of the railroad.

Carol Stradling asked, is there a reason why that hasn’t been provided?

Jeff Walker stated, we provided all of the information we thought we had to at the time we applied for it.

Carol Stradling stated, even though at last months meeting, you issued a statement that indicated that the right way would be in question. Or was an issue.

Jeff Walker stated, the drawing that we submitted when I drew it we include the street and the right-of-way. We do not build in the right-of-way.

President Thompson asked, do we supply them with a checklist with the details that are required when they apply for a variance?

Director Weaver stated, we do have a hand out in our office that states what is required to file for a building permit. They are there readily available for anyone to pick up.

President Thompson asked, is there any more discussion?

Attorney Altman stated, since this is different. Let me just check this, I would recommend at this time the Board of Zoning Appeals take this matter under advisement. Evidence has been submitted and both parties have no further evidence to present. I would recommend that we receive a brief from the parties if they wish to do so to brief this matter, so I can review it. We usually do that within 30 days receive a brief. Is that a reasonable time for you Mr. Loy and Mr. Fafarman.

Keith Fafarman stated, that is fine with me, but what I would ask is that we just simply be asked to submit to the board a proposed findings and facts of conclusions.

Attorney Altman stated, yes, I said brief, but you are certainly right. If you could that would be excellent. Then I will review that and submit that to each member of the board at the same time, so that probably not next month, but the month after we would be able to render a decision here at the meeting and go from there. Does that sound reasonable to both parties? Does the board understand that? This isn’t a matter that really…. It’s different than your variance or your special exception.

David Stimmel stated, I would like to hear from Jerry what the difference in the facing is. I’m a little confused by that.

Attorney Altman stated, I think it is up to them to present evidence on. They have done that and I’m sure that in the findings of facts and conclusions they will give you more argument and support there of and obviously Mr. Loy will do the same thing. From that I think than you can render a decision. Does the board understand where we are? I will get a brief 30 days from today that will probably be set for final decision that would be in the April meeting.

President Thompson stated, that is April 17.

George Loy stated, I’ll be honest with you, I would prefer a decision tonight.

Attorney Altman stated, well I think we need to go the other way. I think quite frankly your findings of facts and conclusions of law will be very helpful in this matter, as it is the first appeal that we have technically had. That would help the board a lot.

President Thompson stated, so you are saying we will address this at the April 17 meeting. Both parties will come back.

Attorney Altman stated, April 17, if they wish to do so.

President Thompson stated, but no further evidence.

Attorney Altman stated, that is right.

President Thompson asked, is this acceptable to the board?

They all stated yes.

****

#2177 Berenda Inc.; The property is located on Lot #4 in Hughes Business Park Subdivision, South of Brookston at 110 W. 1250 S.

Violation: Running a trucking business without a special exception.

Request: They are requesting a special exception to operate a trucking business.

President Thompson asked, who is representing this?

Joe Bumbleburg stated, I am. I’m sorry I could not help you. I don’t like to turn people down in this particular field. I would say I have been through this kind of procedure and that Mr. Altman advice about the finding of facts and conclusion is clearly the accurate way to do it. It is painful and slow, but it is necessary. On that issue, Jerry is absolutely correct. Berenda Inc., is a trucking company out in the Hughes Industrial park. They bought the property in February of 2000. They came in and got a building permit and at no time at that point did they understand from either the realtor or anybody else that they had talked to that the zoning alone was not going to be enough to let them run a trucking company there. So they went into operation in the middle of that industrial park, and somehow in the fall Diann came of the knowledge that they were there. They were running a trucking company. She sent them, not only the letter suggesting that they were in violation, but interesting enough she sent them the check list that you were asking about, for a special exception. As a result of that I have had some discussion with Diann and we have filed this request for a special exception in order to get this matter straighten out. You should have in your file all of the documents necessary with the check list.

The survey, we actually had a surveyor who had done a survey, and we sent him back out and position or detail where the building actually where the buildings, the driveway, parking lots, and all of those kinds of things. That is in the file, we also have the complete study done and an approval by the State Board of Health. That is also in the file. There are covenants interesting enough for this subdivision and the only history you knew of what was going on. Originally it was B-2 or something. Then they came along some point later and several of the lots in the subdivision they changed the I number under which we are currently proceeding. Why that happen I do not have a clue. I suppose that someone out there came along and thought B was too restrictive and so they opened it up and changed the covenants of the subdivision and broaden them to meet the zoning ordinance district for that particular area. Under your ordinance. Let me tell you about the Berenda’s, they are the couple that is here with me. Also I should also introduce to you Matt McQueen, who is a lawyer in our office. I’m dragging him to these meetings now because I’m getting too old for these late meetings. I’m going to try to let him learn a little bit about this. Frankly, it is a lot more fun representing the Park Department, then it is these nighttime meetings Carol. The 2.3 acres that we have here, they run a truck company, they have about 15 trucks. They service Wabash National and they haul their equipment. They haul parts for SIA. They haul for a birdseed company, and that is essentially what they do. Most of the time during the week there are not any trucks or very few of them out there at all. I hesitate to come to somebody else back yard, and say well here is what the place looks like because I’m assuming that all of you have seen that area. If you haven’t I can give you some pictures. The fact is they are in the middle of this area with their truck company, and Zakian, which is a billboard sign company and Seifert potato chip people, J & J, and a whole series of people down there whose uses are similar in one way or another, trucks coming and going and that sort of thing. But in your ordinance you have a whole series of kinds of things that you ought to be thinking about, like glare and heat and we do not produce either of those. Explosive hazards the only kinds of fuels we have are in the tanks of the trucks. Odors, we do nothing to generate smell. Toxic materials we have none unless you consider the fuel and the kinds of things that are incidental to a truck. Dust that is there on our parking lots are heavy stone with generates less dust producing than the lighter gravel. We have no smoke, or vibrations and the noise that we have are truck motors, which are again the same kinds of noises that you would hear at everybody else in this particular area. There are no houses within any distance, typically special exceptions are review under rezoning rules and under the tradition of zoning to assure that a permitted us like a trucking company does not infringe on the neighbors by various things, like lights, or what have you. Our lights by the way are security lights and so they have no effect on any of the neighbors. In reality our neighbors are people just like us, who are doing this same thing, so the concept of the special exception here. We essentially meet all of the standards. In the building we have a place for the truckers to have a break room, rest room, and offices in it. Most typical day is if there are more than 3 or 4 people out there, it is a heavy day. Our use out there is essentially trucks parked there on the weekends, but the coming and going like Seifert’s where they are a delivery operation we don’t have that kind of impact on that area. Essentially we are in the middle of an industrial park, and our impact in my judgement is zero. The Berenda’s are here and we would be happy to try to answer any questions that you might have on the issue.

President Thompson asked, have you had any response from anyone?

Director Weaver stated, no we have not had any contacts from any of the neighbors.

President Thompson asked, anyone here who cares to address the board this evening, either for or against the variance? Does the board have any questions for the Berenda’s?

Carol Stradling asked, when was the letter sent out that they were in violation Diann?

Director Weaver stated, November, I believe.

Joe Bumbleburg stated, I believe in October or November. I remember talking to Diann about it and she and I said let's get a 30 day going on it. Then I had to get a surveyor to come out and put the lines on the drawings and I tell you trying to get surveyors out, is not a very easy as busy as they are.

Director Weaver stated, November 18.

Carol Stradling stated, you said the covenants were changed from a B-2 to an I-1. Do you know when that happened?

Joe Bumbleburg stated, yes, I have it right here. The covenants were filed in 1989 and then the change of the covenants were done it looks like in 1991. They went from a B-2 to an I-1 zoning. They did it on lots 1, 4, 5, 6, 7, 8, 9, 10, 11, and 12. Some of the lots had been sold.

President Thompson asked, does anyone else have any questions for Joe?

Attorney Altman stated, the only thing is with a special exception remember that the law in the ordinance says that if they prove that they are what the special exceptions says they should be that it is granted. A variance you have discretion special exception once you determine that they are a trucking transfer lot and that is allowed under the ordinance you shall grant this special exception.

Director Weaver stated, Carol I have a file here from where this property was rezoned. It was rezoned by the developer Johnny Hughes and the analysis on that staff report states the business of the potential buyers require the I-1 zonings. Evidentially they were rezoned due to a purchase.

Berenda was not the purchaser at the time, there has been someone in between then.

Carol Stradling asked, have they received all of the appropriate permits?

Director Weaver stated, they have received two permits on this property. One was to build the structure originally a 58 x 90 Pole building for the purpose of the warehouse and the second was to add an office space within the existing warehouse. A 16 x 90 office area.

President Thompson asked, Gary, Dave or Dave Scott do you have anything?

Director Weaver asked, are we voting on the request or dealing with the violation? Your agenda’s have been changed due to the adoption of the $500 fine. The violation does come first on the agenda. I didn’t know if we have to address that first.

Carol Stradling stated, I guess I’m looking at the bottom of the analysis.

“ Someone told me that Angie a former employee of your office knew that this was going to be used as trucking business.”

Director Weaver stated, that is what I was told, but both permits stated on that they were for a warehouse. Kim Berenda signed both of them as well. It was stated right there on both of the permits. I was unaware of the fact that this was to be a trucking company.

Joe Bumbleburg stated, my clients tell me that Angie new exactly what they were going to do out there.

Director Weaver stated, I have shown that on the staff report. That is what she is referring to.

Joe Bumbleburg stated, these people are in the trucking business. Unfortunately the zoning is a little bit complicated for the people trying to do business. A young couple trying to run a trucking company relying on a realtor that everything is okay. They come in and get building permits and there was a communications gap there. There was no effort to deliberately violate your rule at all through this whole process. To fine them the minute it was called to their attention they came, or I called Diann and was started the process to get it straightened out. These are people who are not trying to jerk the system around.

David Scott stated, I make a motion in light of the situation that we waive the fine this time.

Gary Barbour stated, I second the motion.

The motion was carried by 5 affirmative to 0 negative.

Without further discussion the board voted.

The Board finds the following:

1. That the building site is properly zoned I-1, Light Industrial.

2. That the lot is a proper subdivision of land as provided by the White County Subdivision Ordinance.


3. That the site plan survey provided shows the lot size, existing improvements and proposed improvements, see file for exhibit.


4. That no objectors were present at the meeting.

5. That proper notice was given by mail to adjoining property owners.

6. That the request is for a special exception to operate a trucking business

on Lot Number Four (4) in Hughes Business Park Subdivision in Prairie Township, White County, Indiana.

COMMON DESCRIPTION: The property is located South of Brookston at 110 W. 1250 S.


7. That the special exception herein authorized and granted is not so typical or recurrent in nature as to make typical or recurrent the formulation of a general regulation under an amendment of the ordinance for the above said condition or situation of the above said specific piece of property, and the Board additionally finds that the above said special exception is based on the findings of fact so made that are required to be made under the provisions of Section 10.20 of the White County Zoning Ordinance, said findings of fact support and create a fact situation that authorizes the above said special exception under the above said sections of the zoning ordinance.

The special exception was granted based on the findings of fact by a vote of 5 affirmative and 0 negative.

****

#2178 Joseph A. Pala Sr.; The property is located on Lots 3, 4 & 5 in Chapman’s Subdivision, Northwest of Buffalo at 6259 E. State Road 16

Violation: None.

Request: They are requesting a 3’ height variance for an accessory building


for a business.

President Thompson asked, is there anyone here representing this request?

Joseph Pala stated, I am.

President Thompson asked, do you have any extra information that you would like to present tonight?

Joseph Pala stated, it’s just that I want to put up an additional warehouse space and I need to apply for a height variance. I’m actually lower than the original building that was there by 4’. I was told that I needed a variance.

President Thompson asked, Diann do you have anything on this?

Director Weaver stated, I have not received anything from any of the neighbors on this. I did include a copy of a portion of his information that he has submitted for the building permit. This was just to give the board a better idea of what he is proposing to do.

President Thompson asked, he did present this to you?

Director Weaver stated, yes, with the permit information.

Attorney Altman stated, submitted, I’m trying to see what it says side elevation A, side elevation B, apparently showing two give perspectives. Showing the existing building from one side and then from the other side. This is drawn to scale Mr. Pala?

Joseph Pala stated, yes, I had it submitted to scale.

President Thompson asked, is there anyone here who cares to discuss the variance?

Any comments or questions from the board?

Carol Stradling asked, would you re-side the existing building so it will match the new building?

Joseph Pala stated, the new building would match the existing building.

Carol Stradling stated, okay, I’m looking at… What do you call it?

Joseph Pala stated, it will be 4’ lower than the other building which is right next to it.

Carol Stradling stated, but the siding on the elevation that we have, it looks like there is a kind of one siding on the top and then a lower…..

Joseph Pala stated, oh, I have the wainscotting going down on the bottom of it.

Carol Stradling stated, the original building doesn’t have the wainscotting on it does it.

Joseph Pala stated, no it does not. The reason we did the wings coating was because the siding on the existing building had faded some, and I thought if we put the wings coating you wouldn’t notice it as much.

President Thompson asked, is there anything else from anyone? Carol, Dave, Dave, or Gary?

Carol Stradling stated, I also understand that it is easier to replace a wainscotting coating if it gets bumped or nick then it is to replace the whole sheet.

Director Weaver stated, I do want to mention that as you can see in the pictures that the posts have been put in for this addition. I did talk to the building inspector and he was aware that these posts were in and I do not know if the concrete has been poured around them to where they are permanent as of yet. The building inspector did recommend that he stop at this point and the building inspector did tell me that he has stopped at this point. This is the point he told them to stop at.

Joseph Pala stated, there is no concrete around those posts.

Director Weaver stated, he told me he told you not to, and we can determine that by looking at it.

Without further discussion the board voted.

The Board finds the following:

1. That the building site is currently zoned B-2, General Business.

2. That the lot was an existing lot of record at the time of enactment of the ordinance, as defined in Section 2.114.

3. That the site plan survey provided shows the lot size, existing improvements and proposed improvements, see file for exhibit.


4. That no objectors were present at the meeting.

5. That proper notice was given by mail to adjoining property owners.


6. That the request is for a 3’ height variance for an accessory building


for a business on Lots 4 and 5 in Chapman’s Subdivision of Lot 13 in Chapman’s Subdivision in Liberty Township, White County, Indiana.


COMMON DESCRIPTION: The property is located Northwest of Buffalo at 6259 E. State Road 16.

7. That the variance herein authorized and granted is not so typical or recurrent in nature as to make typical or recurrent the formulation of a general regulation under an amendment of the ordinance for the above said condition or situation of the above said specific piece of property, and the Board additionally finds that the above said variance is based on the findings of fact so made that are required to be made under the provisions of Section 10.10 of the White County Zoning Ordinance, said findings of fact support and create a fact situation that authorizes the above said variance under the above said sections of the zoning ordinance.

The variance was granted based on the findings of fact by a vote of 5 affirmative and 0 negative.


****

#2179 Robert E. & Theresa A. Bartlett; The property is located on Lot 7 in Block 13 in the Town of Brookston at 310 S. Prairie Street.

Violation: None.

Request: They are requesting a 10’ front setback variance to place a new

free-standing sign on the property.


President Thompson asked, and you are?


Rob Bartlett stated, I’m Rob Bartlett.


President Thompson asked, what do you have?


Rob Bartlett stated, the property there, and also stockholder of the business. We are required by Ford to put the new sign that you have seen at a lot of dealership and since we moved 4 years ago, they want us to put it in front of our new building. It’s new to us and everybody has the survey. The problem with the 10’ setback is that the building that is there was built in 1976 and it is only 21’ back and you can see the upper portion of the sign is 12’ 2” wide and that is going to put that sign so far back there that part of it will be back behind the front face of the building. We are asking a 0’ setback as illustrated there and the survey there with the sign of course, that actually is going to be 20’ in the air. All that will be close to the ground will be the post which is 36” diameter cladding. The sign that we currently have which I guess is probably a negative 10 setback will be removed so actually it will be improving. That is not in this drawing, but it is towards the North end towards the old show room.


Director Weaver stated, it shows in your pictures that I took for them. The bottom picture you can see that sign.


Rob Bartlett stated, it actually hangs out there next to edge of the road.


Carol Stradling asked, the leading edge does?


Rob Bartlett stated, the old sign, which will come back.


Carol Stradling stated, I’m concern with where the post is going to be. If it is 36” in diameter and the sign from edge to edge is 12’ 2” does that mean the street edge of the pole will be roughly 4 ½’ from the property line.


Rob Bartlett stated, it would be 6’ one inch less 18” so it will be about 4’9” from the property side of the sidewalk.


Carol Stradling asked, and there is a sidewalk there?


Rob Bartlett stated, yes and there is green space, so we have approximately 21’ of green space and sidewalk, plus then the other roughly 4 ½’ before you get to the street edge of the post.


David Stimmel asked, where does the State by the way come to?


Rob Bartlett stated, I’m not sure the right-of-way I need to be concern about is on the side of the sidewalk. I don’t know if that is state, but that was the right-of-way I was told I needed to be concerned with. See the State, I looked at the State and they have no sign ordinance. They said you had to go to the County. They said I could put it up next to the road, the leading face of the sign on the edge of the highway. They don’t have a sign ordinance.


Director Weaver stated, that is correct within the Town on premise sign does not have to go through the State for approval. Your survey indicates that the State road 43 has an 80’ right-of-way.


Rob Bartlett stated, that makes it almost in the green space, doesn’t it.


David Stimmel stated, it does Rob, and that is what I was concerned about are you on the State right-of-way?


Rob Bartlett asked, the sign?


David Stimmel stated, yes, the edge of it.


Rob Bartlett asked, the sign wouldn’t be, would it? It looks like the State right-of-way would either be in the green space or in the sidewalk, 1 1/3”. I would have to put a ruler to it.


President Thompson stated, I would too. I don’t know either.


Attorney Altman stated, it looks like just putting a ruler on it that the 30 is right at the property line. It doesn’t make sense.


Rob Bartlett asked, is that relevant?


David Stimmel stated, I don’t know. I was just asking.


Director Weaver stated, you could not encroach on the right-of-way.


Attorney Altman stated, I guess that is the only thing, if it is 40’ right-of-way line. The scale is right, I would double check it before I put my sign on.


President Thompson asked, you don’t want it back any further than is necessary, is that the idea Rob?


Rob Bartlett stated, yes, because coming from the North I’m afraid the view is going to be obstructed, plus entrance to the show room doors is going to be obstructed.


President Thompson stated, I see.


Attorney Altman stated, I don’t think that we have to do anything other than to instruct him that he can not build beyond his lot, even the leading edge can not be beyond his lot. That is what you are asking for. I guess I’m really concerned why I lay a farmers straight edge down on this 40’ something there is not right. I would really check the survey before you do it. You don’t want to put that out and have to move it.


Rob Bartlett stated, wherever the property line is, is where I want to face the sign.


President Thompson asked, could we pass this with a condition?


Attorney Altman stated, that is what he is doing.


President Thompson stated, I understand that, but should we not have this on the record. Do you understand Rob?


Rob Bartlett stated, yes.


Carol Stradling asked, could he just check could he measure off of the centerline?


Attorney Altman stated, oh no, I would have an engineer or Mr. Milligan do it. Something is not correct on this survey.


Rob Bartlett stated, you could verify the 80’.


Director Weaver stated, I have a scale in my office. We can scale it to see what it measures.


Rob Bartlett stated, but the fact that it is 80’.


Director Weaver stated, I could not verify that.


Rob Bartlett stated, I was wondering where he got that.


David Scott stated, there is not 80’ between those buildings.


President Thompson stated, all right we need to put this part on the record as a part of his condition.


Carol Stradling stated, I move that we vote on this contingent to verification of the road right-of-way and the determination of where the property line.


Rob Bartlett asked, is an official response necessary, or just on record?


Attorney Altman stated, I certainly think you need to give it to our department, to our director when you get your building permit, if not before.


Carol Stradling stated, you might have to adjust it if there is not enough room. You may have to come back.


President Thompson stated, just be in contact with Diann on the thing. Does this simplify everything?


Carol Stradling stated, if I was you and I had already paid Mr. Milligan to do this survey. I would talk to him first before I would involve an attorney. There maybe a real simple explanation for what we are seeing on the paper.


Rob Bartlett stated, sure.


Director Weaver stated, a possibility too would have him stake it. Have him stake the lot line.


Rob Bartlett asked, Mr. Milligan?


Director Weaver stated, yes.


Attorney Altman stated, I sure would talk to the surveyor and ask why inconsistent.


President Thompson asked, does everyone understand what we are voting on and the conditions that go with it?


Without further discussion the board voted.


The Board finds the following:


1. That the building site is currently zoned B-2, General Business.


2. That the lot was an existing lot of record at the time of enactment of the ordinance, as defined in Section 2.114.


3. That the site plan survey provided shows the lot size, existing improvements and proposed improvements, see file for exhibit.


4. That no objectors were present at the meeting.


5. That proper notice was given by mail to adjoining property owners.


6. That the request is for a 10’ front setback variance to place a new

free-standing sign on the property.


Lot 7 in Block 13 in the Original Plat of the Town of Brookston, White County, Indiana.

COMMON DESCRIPTION: The property is located in the Town of Brookston at 310 S. Prairie Street.

7. That the variance herein authorized and granted is not so typical or recurrent in nature as to make typical or recurrent the formulation of a general regulation under an amendment of the ordinance for the above said condition or situation of the above said specific piece of property, and the Board additionally finds that the above said variance is based on the findings of fact so made that are required to be made under the provisions of Section 10.10 of the White County Zoning Ordinance, said findings of fact support and create a fact situation that authorizes the above said variance under the above said sections of the zoning ordinance.

The variance was granted based on the findings of fact by a vote of 5 affirmative and 0 negative.


****

#2180 Michele J. Goebel; The property is located on part of Lot 16 in Richey Park Subdivision, South of Monticello at 5889 Richey Lane.

Violation: None.

Request: She is requesting an 8’ side setback variance to add an attached

garage onto the room addition.

President Thompson asked, and you are sir?

Greg Moore stated, I’m Greg Moore. I’m the building contractor. They wish to add a garage to a structure that is being remodeled right now. The structure does not protrude any farther then the existing room addition that is going on. They want to add a new garage coming out towards the back of the street. The setbacks to that street will be as you require. You have a 10’ side setback on the property line and that her closes will be 8’. As the property line comes back towards the road and gets wider and wider. I believe you have all of the drawings and the survey. It should show the new room addition and the garage.

Director Weaver stated, the board might recognize this name. She has come to us just in the last few months and received a variance to build the room addition, but that request did not include this garage, and this is why she is coming back to you. We have issued a permit for the addition, not including the garage.

Carol Stradling asked, so it was not going to be an attached garage?

Director Weaver stated, there was no plans for a garage on the original plans.

Carol Stradling stated, okay.

President Thompson asked, was there any response?

Director Weaver stated, no.

President Thompson asked, Jerry do you have anything?

Attorney Altman stated, no. This will be on a sewer system or septic system?

Greg Moore stated, yes.

Carol Stradling stated, you were giving some distances. You said it wasn’t any closer than 8’.

Greg Moore stated, no, the garage would extend right on the same plan as the existing addition.

Carol Stradling stated, okay.

President Thompson asked, have you seen the survey that we have seen?

Greg Moore stated, no.

President Thompson stated, look at Dave’s down there on the corner.

They were discussing the survey.

President Thompson asked, any questions, comments, and is there anyone here who opposes the variance?

Without further discussion the board voted.

The board finds the following:

1. That the property is properly zoned L-1, Lake District


2. That the lot was an existing lot of record at the time of enactment of the ordinance, as defined in Section 2.114.


3. That the site plan survey provided shows the lot size, existing improvements and proposed improvements, see file for exhibit.


4. That no objectors were present at the meeting.


5. That proper notice was given by mail to adjoining property owners.

6. That the request is for an 8’ side setback variance to add an attached

garage onto the room addition 75.00 feet off the entire North side of Lot 16 in Richey Park Subdivision in Union Township, White County, Indiana.

COMMON DESCRIPTION: The property is located South of Monticello at 5889 Richey Lane.

7. That the variance herein authorized and granted is not so typical or recurrent in nature as to make typical or recurrent the formulation of a general regulation under an amendment of the ordinance for the above said condition or situation of the above said specific piece of property, and the Board additionally finds that the above said variance is based on the findings of fact so made that are required to be made under the provisions of Section 10.10of the White County Zoning Ordinance, said findings of fact support and create a fact situation that authorizes the above said variance under the above said sections of the zoning ordinance.

The variance was granted based on the findings of fact by a vote of 5 affirmative and 0 negative.


****

#2181 Mark E. Swanson; The property is located on 8.117 acres, West of Brookston, North of State Road 18 at 9127 S. 1200 W.

Violation: None.

Request: He is requesting an 8’ height variance for a 30’ x 30’ detached garage

and a 10’ height variance for a 35’ x 57’ post frame building.

President Thompson asked, you people are?

Mark Swanson stated, I’m Mark Swanson. We are requesting a height variance on a 30 x 30 detached garage. The property that is there now, the garage will eventually be attached to a log home that is there. That will be 2 or 3 years down the road before I build that. What I want to do is get a variance for the height of it, I can have an 8’ pitch roof on the garage that is there now, so it matches the log home when I attach it to the log home. The other variance that we are asking for is, currently I have a building there that over the height variance. It has an apartment in it, so it is legal as far as the 30’ variance that they have, but when I build the log home then, I will have to take the apartment out of the existing building that is there. Then I will need a variance at that time because of the building will be too high, if I take the apartment out.

Director Weaver asked, did the board follow that? He currently has a pole barn that is a dwelling at this time. He wants to build a detached garage. It is going to be taller than our required 15’. He is going to attach that to his home once he builds the home. When he builds that home he is going to remove the living quarters out of this existing building which will then take it out of compliance with our ordinance. He is also requesting a height variance on this building so he can convert it back into a pole building.

Attorney Altman stated, just the opposite of what we usually have.

Carol Stradling asked, he lives in the top of this?

Mark Swanson stated, no there is a section on the side that is actually an apartment and the rest is a garage. What will happen, once I build, I will need more room because the garage I have is apart of an apartment now! There isn’t enough room for everything I have, so that is why I’m building the garage that is detached now, but eventually will be attached to the log home down the road. They said if I was going to build the house at the same time then the garage is legal because it is attached to the house, but right now I can’t do that because it is not attached.

Carol Stradling asked, the neighbors are far away.

Mark Swanson stated, yes.

Carol Stradling stated, I think we are ready to vote.

Without further discussion the board voted.

The Board finds the following:

1. That the property is properly zoned A-1, Agricultural.


2. That the lot is a lot of record and properly divided.


3. That the site plan survey provided shows the lot size, existing improvements and proposed improvements, see file for exhibit.

4. That no objectors were present at the meeting.


5. That proper notice was given by mail to adjoining property owners.

6. That the request is for an 8’ height variance for a 30’ x 30’ detached garage

and a 10’ height variance for a 35’ x 57’ post frame building.

That part of the Northwest Quarter of Section 15, Township 25 North, Range 6 West in Round Grove Township, White County, Indiana, described by:

Basis of Bearings: Indiana State Plane Coordinate System, West Zone.

Commencing at an existing re-bar located at the Northwest Corner of the Northwest Quarter of said Section 15; thence South 01 Degree 05 Minutes 02 Seconds East along the Section Line and the center line of County Road 1200 West, a distance of 528.00 feet to a railroad spike set at the point of beginning; thence South 88 Degrees 42 Minutes 14 Seconds East, a distance of 1035.00 feet to an iron pipe set; thence South 01 Degree 05 Minutes 02 Seconds East, a distance of 343.00 feet to an iron pipe set; thence North 88 Degrees 22 Minutes 33 Seconds West along an existing fence and occupation line, a distance of 373.19 feet to a wood corner post; thence North 88 Degrees 53 Minutes 20 Seconds West along an existing fence and occupation line, a distance of 661.82 feet to a railroad spike set; thence North 01 Degree 05 Minutes 02 Seconds West along the Section Line and the center line of County Road 1200 West, a distance of 343.00 feet to the point of beginning, containing 8.117 acres.


COMMON DESCRIPTION: The property is located West of Brookston, North of State Road 18 at 9127 S. 1200 W.

7. That the variances herein authorized and granted are not so typical or recurrent in nature as to make reasonable practicable the formulation of a general regulation under an amendment of the ordinance for the above said specific piece of property, and the Board additionally finds that the above said variances are based on the findings of fact so made that are required to be made under the provisions of Section 10.10 of the White County Zoning Ordinance, said findings of fact support and create a fact situation that authorizes the above said variances under the above said sections of the zoning ordinance.

The variance was granted based on the findings of fact by a vote of 5 affirmative and 0 negative.

****


Director Weaver stated, I just have an update on the Wiese situation. He still does not have a permit. He is trying to get his permit, I have not sent a letter out to him. Shortly after the meeting he contacted me. He has run into a snag with the State. He is trying to work that out with our building inspector, so he is working on getting his permits. I have not sent a letter out on that because he is making an effort. I’m aware that he is trying to make an effort.


President Thompson stated, I have had several people ask me about, there is a fellow in Chalmers selling these portable carports. I think I know how we are treating them, but I want to hear you say it.


Director Weaver asked, whether they need a permit or not?


President Thompson stated, yes.


Director Weaver stated, someday we do and someday we don’t.


President Thompson stated, well….


Director Weaver stated, I don’t have anything better to tell you on that.


President Thompson stated, I don’t have a legal term.


David Stimmel asked, why is that any different Diann.


Director Weaver stated, in my opinion its not. My opinion they require a permit.


David Stimmel stated, here is the only reason I’m asking. Just in the last couple of days my wife gets all kinds of stuff. He can buy a green house that is 100 x 200 it is all made out of plastic and canvas and the whole nine yards. It is not one bit different from an 8 x 10 carport.


Director Weaver stated, as far as I’m aware at this time, yes they do need a permit. That does change. I apologize for that, but I have no control over it.


President Thompson asked, are we going to treat them as portable buildings.


Director Weaver stated, we treat them like an accessory building and has to meet the setbacks like an accessory building.


President Thompson stated, so the way I explained it once they are glued down they need a permit.


Director Weaver stated, actually they need a permit regardless. They get assessed for them.


President Thompson stated, they do. I’m glad Charlie left. His daughter has one.


All members are talking at this time.


President Thompson stated, I have been delivering seed for Diener’s and it is amazing how many of those green houses I have seen. People are really jumping on that.


David Stimmel stated, when you mean some do and some don’t, how many, what is the reasoning behind that. I need you to explain that to me.


Attorney Altman stated, let me explain. I think I told you the last time the judge got sick on the Indiana Beach arguments. Tomorrow we will get on the phone to reset it. That is all.


Gary Barbour stated, I have one thing on this conclusion on the railroad thing. Explain it to me.

What did that do for either party.

Attorney Altman stated, what they’re appealing, and what they are saying that there is no good reason why their application for a building permit was denied. They are saying to you as a board or it be reasons for its denial be given or order the building permit be issued. That is it. Now what I wanted and what Mr. Bumbleburg confirmed, is I want to know exactly what they want us to do and make them put it in writing. Exactly what the city doesn’t want them to do to put it in writing, then I can set down and basically write it up both ways and the board can look at it and decide what they want to do. The other thing is this isn’t one of those circumstances whereby we can say, and we have done this before. We have negotiated this before. If 18’ weren’t enough would 30’ be enough and that sort of thing. If that is not the problem then the four faces or what ever you want to call them. I understand what you are asking for Dave and I’m not trying to impute, but I don’t know what it was up there yet that is what you are going to have to decide. I will participate as far as you want in a way of discussing it when they are here. I want to see them put it in writing and see what their case law is.

Gary Barbour asked, do we have to tell them why it was denied?

Attorney Altman stated, no.

Gary Barbour asked, it is either a yes or a no?

Attorney Altman stated, in essence yes.

Carol Stradling asked, its either yes we support what the city did, or no we don’t support what the city did? If we do not support what the city did, then the Sign Company can put up the sign.

Attorney Altman stated, no, no, if we don’t support we would either order a building permit be issued or a denial is issued.

Director Weaver asked, how could we order anything, agree, or disagree with anything, when Area Plan doesn’t act on this.

Attorney Altman stated, I have told them that.

Director Weaver stated, I don’t see how we can say yes, no, maybe or otherwise, we don’t have that authority.

Attorney Altman stated, I don’t want to talk about the merits here. Your question I can do without talking about the merits here. I don’t like to do that when they’re not here.

Gary Barbour asked, what was the merit of us …. Conclusion and if we had to get reasons for denial or acceptance either way.

Carol Stradling stated, I guess if we support what the city did, then is it a done deal or do they take it higher.

Attorney Altman stated, they could take it to Circuit Court. Either way if we go the other way the city will take it to Circuit Court.

President Thompson asked, what could happen to us to make this go beyond the April meeting.

What could they do to throw a wrench into it? I just want to put this thing to rest.

Attorney Altman stated, just not give it to us. Quite frankly if they don’t I’m just going to proceed as if they did. Work with the board to issue a ruling.

President Thompson stated, so there should be no way we can not wash our hands of it.

Carol Stradling stated, the ruling is either we accept what the city did or then both parties can take it wherever they want. We don’t accept what the city did and then both parties take it where they want. It doesn’t grant them the permit to put up the sign or deny the ability to put up the sign.

Attorney Altman stated, technically you could order a building permit be issued. That is what they are asking for. Diann I hear what you are telling me. You know I’m not arguing, but technically they are asking for that.

Carol Stradling stated, that is what they are asking for.

Attorney Altman stated, yes, that is one of the things that they are asking for.

Carol Stradling stated, okay, but they have not asked for a variance.

Attorney Altman stated, absolutely no variance, and that is exactly… I don’t want to get into that. It starts talking about them and their merit. No nothing in the way of a variance being asked for in this matter.

Gary Barbour made motion to adjourn.

Carol Stradling seconded the motion.

The meeting adjourned.

Respectfully submitted,

Gary Barbour, Secretary

Diann Weaver, Director

White County Area Plan Commission