Get Adobe Flash player

The White County Board of Zoning Appeals met on Thursday, July 28, 2005 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: Pamela J. Allen, Charles R. Mellon, Eugene Broughton, Don Pauken, Lynn Colby, Bill Pyle, Dow Dellinger, Jeff VanWeelden, Doris Parsley, Tom Parsley, Jon Noe, Jonathan Noe, Larry R. Noe, Floyd L. England, Robert Kinser, John Raines, Terri Raines, Terry Beasy, Judy Kercheval, Bruce Kercheval, Don Wright, Larry Blaser, William Stan Gatewood, Robert Lane, Stan Hockema, Abby Lietz, Georgia Day, Nancy Margraff, Noel F. Lyons (White County Sheriff), Bob Musall and Myron Barnes.


For the record of these minutes, the microphone that was available for the applicants and audience to use was not turned on therefore, it was very difficult to produce a word for word transcribed set of minutes.

The meeting was called to order by President Jerry Thompson and roll call was taken.

President Thompson stated, those of you here that have applied for a variance tonight, you do have a couple of options available to you and I will call on our attorney, Mr. Altman to explain those please.

Attorney Altman stated, thank you very much. First of all, would you please do what I do right now and turn your cell phone off? We take of 3 points if your cell phone comes on, now that’s a joke but, it is not very considerate of the Board and we appreciate that or anyone else here. This is quasijudicial body and anybody giving evidence or testimony this evening needs to be sworn in so if you would please stand and raise your right hand, anybody got to talk or give testimony and I will just swear us all in as a body. Right hand, yes please.

Attorney Altman swore in the Board members and the audience members.

Attorney Altman stated, now if later on you weren’t sworn in and you wish to be we can do that and take care of that but we just do that this way to keep it moving along. This, you have as an applicant for variance, you have a right to have your matter tabled if you wish to do so, you can have it done for 2 times. The Board may table your request but, they often time do so to maybe go look at it again or get more evidence to testimony or ask you to go get more evidence or testimony to bring in. They may just think about a little longer and take that time. Does anyone have any questions about their situations or rights? Thank you very much. Think that we’re


ready, Mr. President.

President Thompson stated, thank you and again if there is ever a question do not hesitate to shoot your hand in the air we will be more than glad to address them as we go through the evening so before we begin are there any questions? If not, we shall begin. We have some old business to take care of here first. We have minutes from the past meetings they are the April 28th meeting, they’re the May 19th meeting and the June 16th meeting. They, we, throughout the year just to explain where we’re at here not everyone is able to attend every meeting we have obligations just like you people do. The best way to handle these minutes is a lot of times when we have a full board and we’re fortunate to have everyone here tonight so lets being wit the April 28th meeting. Any corrections or additions to those minutes? Discussion?

Carol Stradling stated, I only noticed one on page 31 it refers to a 4’ x 4’ Rocky King stated, yes they are just posted frames 4’ x 4’ with roofs over them. I think that’s a 4 x 4 post I don’t think the shed is 4’ x 4’ since it has a roof on it and trailer under it I think it’s a 4” x 4” post.

President Thompson stated, yes.

Carol Stradling stated, Other than that, it looks really good.

President Thompson asked, does anyone else have anything pertaining to the April 28th minutes?

Gary Barbour stated, move to accept them.

President Thompson asked, move and are seconded?

Dave Scott stated, second.

President Thompson stated, it’s been moved and seconded, all in favor signify by saying “aye”.

The Board stated “aye”.

President Thompson stated, all opposed, minutes approved. The May 19th minutes. Discussion?

Carol Stradling stated, I was not here at that meeting so I can’t address that.

President Thompson stated, okay. Gary? Dave? Dave?

Gary Barbour stated, no.

President Thompson asked, nothing to add or correct? Motion to approve?

Dave Stimmel stated, I’ll move to approve.

Dave Scott stated, I’ll second.

President Thompson stated, moved and second all signify by saying “aye”.

The Board stated, “aye”.

President Thompson stated, all opposed. Minutes approved, the May 19th meeting. Let’s move on to the June 16th minutes. Corrections or additions?

Carol Stradling stated, one minute.

President Thompson stated, okay, anyone else…

Carol Stradling stated, um, I’m sorry.

President Thompson stated, no, go ahead.

Carol Stradling stated, at the first I guess that you would call it a paragraph on page 37 it refers to the BSA and that should be the BZA.

President Thompson asked, is there anything else Carol?

Carol Stradling stated, I don’t see anything else, no.

President Thompson asked, okay, Dave, Gary, Dave?

Gary Barbour stated, no.

President Thompson asked, motion? To approve as corrected.

Gary Barbour stated, I wasn’t here, I make a motion they be approved.

Carol Stradling stated, okay…

President Thompson stated, moved and second, okay, all in favor “aye”…

The Board stated, “aye”.

President Thompson asked, all opposed, okay, minutes approved. Yes, Attorney Altman?

Attorney Altman stated, one thing that I did forget to explain, to have any matter approved you need 3 votes. So you do the arithmetic however as our President indicated all 5 members are here this evening so that you can’t, you can but there’s not going to be anyone else here to vote on it other than the 5 members. You still need 3 votes to have any matter approved and sometimes that’s the reason why someone wants to have it continued because of that because they are not all here but I just want to let everyone know that. Does everybody understand? Thank you.

President Thompson stated, all right.

****

#2434 Pamela J. Allen; The property is located on 901 & 10’ off E/E Lot 902 in W.W. Raub’s Fourth Addition at 508 E. Walnut Street in Chalmers.

Violation: None

Request: She is requesting a 32’ front setback variance to replace a detached garage.

President Thompson asked, and ma’am you are?

Pamela Allen stated, Pamela J. Allen.

President Thompson asked, you are Pamela Allen, do you have anything that you would like to present to the Board other than the description that I read?

Pamela Allen stated, you have everything there.

President Thompson stated, okay, all right. Director Weaver, do you…

Director Weaver stated, you should have received in your packet a, obtained a consent to encroach from the Town of Chalmers.

President Thompson asked, care to explain that or need not an explanation I guess.

Director Weaver stated, the reason for this is the ramp and part of the garage encroached on the Town’s right-of-way for First Street and they are going to allow her to continue that.

Pamela Allen asked, I think the encroachment is like 3” isn’t it?

Director Weaver stated, it’s been awhile since I’ve looked at it…

Attorney Altman stated, the concrete pad shows more than that…

Dave Scott stated, 3’ all together, 1’…

Pamela Allen stated, okay, yes.

Attorney Altman stated, on the circle ma’am is what we’re…

Dave Scott stated, on the survey.

Pamela Allen stated, yes.

Dave Scott stated, yes.

President Thompson asked, Attorney Altman do you have anything?

Attorney Altman stated, no I don’t.

President Thompson asked, anyone here speak in favor or against the variance? Okay, Carol do you have any questions for Mrs. Sanders, Allen, excuse me, Ann Anderson on the brain, I’m sorry Allen.

Carol Stradling stated, I understand that the 2’ concrete ramp is there, have you considered moving the building itself. There is 2’ for the concrete ramp and 1’ for the building have you considered moving the building the front of the building back?

Pamela Allen stated, no, that’s been there since the early 1900’s and I would have to tear the entire thing out to move it. That side for the garage…

Carol Stradling stated, I’m not talking about the slab, just the wall. Could you move the wall for the…

Pamela Allen stated, there’s not wall, it’s just a slab, concrete slab. I’m going to put the garage on. I don’t know what wall you mean.

Carol Stradling asked, the wall that’s in the right-of-way, could that be moved back on the concrete slab, just moved back?

Pamela Allen asked, like the front of where the wall will be you mean?

Carol Stradling stated, yes.

Pamela Allen stated, well, no because the slab has a 6” lip on it and there is a piece that comes all of the way around the slab that the frame sets on and then the slab is underneath of that.

Carol Stradling asked, so it’s pretty much set?

Pamela Allen stated, yes.

Carol Stradling stated, okay.

Pamela Allen stated, yes, but otherwise yes is would, if it wasn’t like it is.

President Thompson stated, Carol, I don’t know if you understand, there was a garage there…

Carol Stradling stated, okay…

President Thompson stated, they removed it they kept the foundation and the floor right?

Pamela Allen stated, the prior owners, yes removed it and the foundation the floor is all still there.

Carol Stradling stated, all right.

President Thompson stated, yes, the first, the perimeter base of the first garage is what you’re looking at there on that.

Carol Stradling asked, okay, all right. There are no plans to expand First Street in Chalmers?

Pamela Allen stated,…house but nothing…

Carol Stradling stated, all right.

President Thompson stated, it’s not likely I don’t believe do you Director Weaver?

Director Weaver stated, not that I foresee.

President Thompson stated, I don’t think so.

Carol Stradling asked …questions…

President Thompson stated, that’s fine, Gary do you have anything? Dave Stimmel, Scott, either one? Nothing? If not are you ready to vote?

With no further discussion the Board voted.

The Board finds the following:

1. That the property is properly zoned R-2, One and Two Family Residential.

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 32’ front setback variance to replace a detached garage on Lot 901 and 10.00 feet off the entire East side of Lot 902 all in W.W. Raub’s Fourth Addition to the Town of Chalmers, White County, Indiana.

COMMON DESCRIPTION: The property is located in the Town of Chalmers at 508 E. Walnut 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.

President Thompson asked, you have had your materials for some time haven’t you?

Pamela Allen stated, yes.

President Thompson stated, I see it every day.

Pamela Allen stated, I’ve been trying.

President Thompson stated, I know that you have.

Director Weaver asked, Pam, is that your sign over there?

Pamela Allen stated, yes.

Attorney Altman stated, you need to get a building permit before you proceed.

President Thompson asked, get a hold of Director Weaver okay.

Pamela Allen stated, okay.

****

#2435 Eugene C. Broughton; The property is located on Lot 8 in Block Six in the Original Plat in the Town of Burnettsville at 210 S. Main Street.

Violation: Shed was built out of compliance and not as permitted.

Request: He is requesting a 26’ front setback variance (from eave) and a 4’ height variance to build a detached garage.

President Thompson asked, and sir you are?

Eugene Broughton stated, Eugene Broughton.

President Thompson stated, okay, thank you. You first?

Director Weaver stated, well, he can go first but I want to do some explaining.

Eugene Broughton stated, the shed is not out of violation, the survey the survey is incorrect. That survey shows the shed right on the line, I’m 2’.

Director Weaver stated, you have the corrected survey on the back of your staff report, that is the correct survey. The first one that we received showed I believe it was only 2’ from the property line or something like that and I did send a violation letter out to him and cited him with a violation but there is no violation. He then once he got my letter had Jim Milligan get the survey corrected. If you look at the pictures on the bottom left had picture the orange stakes those are his property lines and the shed to the left is his shed so it’s very obviously farther than 2’ from the property line.

President Thompson stated, yes.

Eugene Broughton stated, the measurements were taken…made a subtraction error.

President Thompson stated, okay, that’s good. Anything else Director Weaver? Attorney Altman do you have any questions?

Attorney Altman stated, no, I don’t.

President Thompson asked, does anyone here care to address the variance for or against? Dave Scott do you have any questions for him tonight?

Dave Scott stated, not right now.

President Thompson asked, Dave Stimmel?

Dave Stimmel stated, no.

President Thompson asked, Gary Barbour? Carol?

Carol Stradling asked, the 26’ front setback is from Main Street, for the garage?

Eugene Broughton stated, yes.

Carol Stradling asked, is the tree, I see a tree right by your sign, it looks like the variance sign is posted right by a tree.

Eugene Broughton stated, chained to that….

Carol Stradling asked, is that about where the garage is going to be?

Eugene Broughton asked, can I come up and take a look at that?

President Thompson stated, yes.

Carol Stradling asked, I guess I’m thinking it would be.

Eugene Broughton stated, this…right here.

Carol Stradling asked, is that what this is on the alley?

Eugene Broughton stated, yes.

Carol Stradling asked, so your garage will be here?

Eugene Broughton stated, yes, this is Main Street the garage will be here between the shed and the street facing two doors facing out.

Carol Stradling stated, okay, so the tree will stay.

Eugene Broughton stated, yes it will.

Carol Stradling stated, okay, thank you.

President Thompson asked, is there anything else Carol?

Carol Stradling stated, no.

President Thompson asked, nothing, is there any other discussion? Ready to vote? Let’s vote.

Director Weaver asked, did you bring your sign back?

Carol Stradling asked, is it still chained to the tree?

President Thompson stated, I’m sorry Attorney Altman, didn’t you have something that you wanted to add?

With no further discussion the Board voted.

The Board finds the following:


1. That the property is properly zoned R-2, One and Two Family Residential.

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 26’ front setback variance (from eave) and a 4’ height variance to build a detached garage on Lot number eight (8) in Block six (6) in the Original Plat of the town of Burnettsville, White County, Indiana.

COMMON DESCRIPTION: The property is located in the Town of Burnettsville at 210 S. Main Street.

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.

Attorney Altman stated, you need to get a building permit before you proceed. To make the record as to the violation that was noticed up on this because I think I speak for the Board that the determination was made that the survey originally was incorrect, has been corrected and there is no violation so therefore, there would be no fine.

President Thompson stated, correct.

Attorney Altman stated, very good, thank you.

President Thompson stated, thank you.

****

#2436 Lynn A. & Karen M. Colby; The property is located on Lot 6 in Shady Point Park in Liberty Township, being north of Lowe’s Bridge at 5155 E. Shady Point Drive.

Violation: Built detached garage taller than permitted and out of compliance.

Request: They are requesting a 1.5’ height variance and a 4’ side setback variance to bring the existing detached garage into compliance so the upstairs can be used for storage.

President Thompson asked, and sir you are?

Lynn Colby stated, Lynn Colby.

President Thompson asked, you are Lynn Colby, okay, all right. Do you have anything to add?

Lynn Colby stated, well, just that the tornado that came through in 2003 blew a tree down behind the house and the garage wrecking the roof. So when we were going to replace that we decided to go up 4’ on each side and how it got a foot and a half high I’ve got my contractor here if you would like for him to explain that if that would help. We did get a permit to change the height but it was a foot and a half too much I guess.

President Thompson stated, okay. So they got the permit…

Director Weaver stated, they got a permit to change the roofline and that was issued July 29, 2003.

President Thompson asked, yes, okay. Anything else Director Weaver?

Director Weaver stated, not that I’m aware of.

Dave Scott asked, and the violation is just totally on the height and not on the setbacks?

Director Weaver stated, no the setback, they added the height onto an existing structure.

President Thompson asked, Attorney Altman?

Attorney Altman stated, I don’t have anything at this time.

President Thompson asked, does anyone care to address the variance? Carol do you have any questions for Mr. Colby?

Carol Stradling asked, I guess I’m struggling when you submitted the application for improvement location it says that there is only 1 story?

Lynn Colby stated, the existing garage was 1 story yes.

Carol Stradling asked, but this is for an application to improve so you were looking to, you wanted, this is your building permit application so you wanted to make it 2 stories?

Lynn Colby stated, yes.

Carol Stradling stated, but your application says 1 story.

Lynn Colby stated, I don’t know. The contractor got the permit I don’t know how it reads.

Carol Stradling asked, proposed use, personal storage, stories 1 type of structure change of roofline and then structure size is 22’ x 24’ with square foot of living area will be 528’ is that second story floored?

Lynn Colby stated, yes.

Carol Stradling asked, okay, is storage considered living space?

Director Weaver stated, it’s still a story and we still charge it as, we charge it the same I guess is the best way for me to answer that. We don’t go by the use, we go by the floor space.

Carol Stradling asked, but since he just…

Director Weaver stated, the permit was only to change the roofline it was not to add a second story. The change of roofline is to change the pitch of the roof it is not to add height to the walls which is what they have done.

Carol Stradling asked, okay, so were there two stories before the tornado?

Lynn Colby stated, no, it was a single garage; a double garage and we added 4’ to the sidewalls to make storage out of it.

Carol Stradling asked, so you added a story so that would…

Lynn Colby stated, yes.

Carol Stradling stated, that would make it two stories instead of one.

President Thompson asked, but your terminology to change the roofline was that your intent to raise it?

Lynn Colby stated, yes, yes.

President Thompson stated, okay. Carol do you have anything else?

Carol Stradling asked, is it customary to put an air conditioner in a storage space?

Director Weaver stated, we have had, I have had the building inspector go inside and it is strictly storage.

Carol Stradling asked, it is strictly storage.

Director Weaver stated, I think, I think the inspector said that someone could maybe sleep up there but it’s not, it’s not livable. It’s not to where you can be in there at home or…

Carol Stradling stated, okay.

Director Weaver asked, he said maybe extra sleeping space but that would be about it. Is that correct?

Carol Stradling stated, okay.

Director Weaver stated, I thought he had told me that.

Carol Stradling stated, okay.

President Thompson asked, Gary, do you have anything?

Gary Barbour asked, how did we find out about the violation?

Director Weaver stated, building inspector.

Carol Stradling asked, on the drawing that you submitted you indicated that your garage was going to be 10’ off of Shady Point Drive and it was built 6’ off of Shady Point Drive.

Lynn Colby stated, like is said the contractor got it if you would like to address him, he’s here. I don’t, we just had an existing building there so we wanted to make a little storage of the place and as far as the setbacks and stuff I mean it was built in the mid 80’s.

Carol Stradling asked, and you were the owner when it was built?

Lynn Colby stated, no, no…

Carol Stradling asked, when the garage was built, were you the owner?

Lynn Colby stated, no.

Carol Stradling asked, but you were the owner in 2003?

Lynn Colby stated, yes.

Carol Stradling stated, okay. I think I would like to talk to the contractor. Is that…

Lynn Colby stated, John Saylor.

John Saylor stated, I’m John Saylor.

Carol Stradling stated, hi. Have you seen these drawings that were submitted with the building permit or with the application? In here it says that the garage is going to be 10’ off of Shady Point Drive and the survey indicates that it’s really only 4’.

John Saylor stated, the foundation of the garage never was moved. All I did was just add the top to it. The bottom square of the garage stayed the same, the frame of it, the foundation was always the same, I just added the height to it for storage.

Carol Stradling asked, and who completed the building permit application?

John Saylor stated, I did.

Carol Stradling asked, you did?

John Saylor stated, yes.

Carol Stradling asked, are you familiar that the maximum building height is 17’.

John Saylor stated, I do now.

Carol Stradling asked, but you didn’t before?

John Saylor stated, he wanted more head room on that by the time that we got it all built then we measured it and realized that it was too tall.

Carol Stradling asked, so you filled this out and you’re the builder and it says that it should be 17’ and it’s a foot and a half over that…

John Saylor stated, yes it is.

Carol Stradling stated, a foot and a half is a big difference what is it measure twice and cut once. I don’t have any more questions.

President Thompson asked, Gary, do you have anything for Mr. Saylor?

Gary Barbour asked, I guess what I want to know, this is, the roofline was changed in 2003? Is that right?

John Saylor stated, yes.

Gary Barbour asked, and it took 2 years to find out that you weren’t in compliance.

John Saylor made a statement but it was unable to be deciphered.

Director Weaver stated, a permit Gary is good they need to start within 6 months and be completed within 2 years.

Gary Barbour asked, and they were being checked by the inspector…

Director Weaver stated, yes….

Gary Barbour asked, that they get it done within 2 years?

Director Weaver stated, they have 2 years to get it completed and inspected yes.

Lynn Colby stated, I did call him twice and waited on him for a couple of hours.

Carol Stradling asked, so did you just recently complete it?

John Saylor stated, it’s been quite a while.

Carol Stradling asked, when did you first call him to let him know that it was complete and ready for inspection?

John Saylor stated, when my last screw was in the top.

Carol Stradling stated, okay.

John Saylor stated, probably I would say after I got completed, I would say probably a month after I got done.

Carol Stradling asked, okay, and when was that? Last year, this year?

John Saylor stated, it wasn’t last year, it was before that.

Carol Stradling stated, okay.

President Thompson asked, Gary do you have anything?

Gary Barbour stated, no.

President Thompson asked, Dave Scott? Dave Stimmel?

Dave Stimmel asked, John, how long have you been a contractor in this area?

John Saylor asked, how long?

Dave Stimmel stated, yes.

John Saylor stated, 30 years.

Dave Stimmel asked, first time that you have ever run into a height problem?

John Saylor stated, yes….in the ground….

President Thompson stated, I think that that procedure is to deal with the variance and then the violation.

Attorney Altman stated, that’s what we usually do, yes.

President Thompson stated, so we can kind of separate the two for right now.

Attorney Altman stated, the questions are very similar but….

President Thompson stated, yes.

Attorney Altman stated, but yes, I think that it’s…

President Thompson asked, Dave Stimmel, anything else?

Dave Stimmel stated, I’m just curious about John is going to tear a foot and half off the top of that sun of a gun and get it back within compliance.

John Saylor stated, it would be impossible.

President Thompson asked, is there any other discussion pertaining to the variance itself?

Dave Scott asked, did you get anything from any of the neighbors complaining about the height or anything?

Director Weaver stated, no I have not.

Carol Stradling stated, it’s quite a bit taller than the other garages in the neighborhood. I mean it’s noticeably different in the pictures.

President Thompson asked, so what are the Board’s wishes?

Dave Stimmel, stated, we vote on the variance.

President Thompson asked, do we have enough information to deal with the variance? Is that agreeable with everyone?

A Board member stated, yes.

President Thompson asked, Carol?

Carol Stradling stated, um, I think so.

President Thompson asked, okay, are you sure?

Carol Stradling stated, as I look at this, it looks really out of place there. If I hadn’t had the picture in front of me to show me out of place that it looks with all of the other garages around it I think that I might have been inclined to approve the variance had it been requested prior to being built.

President Thompson asked, is there any other discussion before we vote. If not, let’s vote.

With no 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 a 1.5’ height variance and a 4’ side setback variance to bring the existing detached garage into compliance so the upstairs can be used for storage on Lot 6 in Shady Point Park in Liberty Township, White County, Indiana.

COMMON DESCRIPTION: The property is located 5155 E. Shady Point Drive

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 4 affirmative and 1 negative.

Attorney Altman stated, you need to get a building permit before you, you have one. Now the violation.

President Thompson stated, okay.

Dave Scott asked, the violation is 500 dollars?

Director Weaver stated, that’s what it’s set at yes.

Dave Scott stated, I make a motion that violation stick.

President Thompson asked, say that again Dave, I’m sorry?

Dave Scott stated, I make a motion that we stick with the 500-dollar violation. It could have been a lot worse.

President Thompson stated, okay, it’s been motioned. That is in form of a motion right Dave?

Dave Scott stated, yes.

President Thompson stated, okay, motion to put the violation fine at 500 dollars. Is there a second or discussion?

Gary Barbour stated, I’ll second it.

President Thompson stated, it’s been moved and second, all in favor.

The Board stated, I.

President Thompson asked, opposed? Motion carried, and that’s due when Director Weaver?

Director Weaver stated, right away.

President Thompson stated, okay, just so they know okay.

Director Weaver stated, that’s due right away.

President Thompson stated, okay, all right.

Attorney Altman stated, you should get your building permit updated so that it shows the granted variance, thank you.

President Thompson stated, okay.

Director Weaver asked, did you bring your sign back? Did you bring your sign back?

Lynn Colby stated, I didn’t bring tonight, I’ll bring it back tomorrow.

Director Weaver stated, that’s fine.

****

#2437 Lawrence Blaser; The property is located on Part of Lots Numbered 32, 33, & 34 and all of Lot 35 in Untalulti Addition, being north of Monticello at 2419 N. West Shafer Drive.

Violation: None

Request: He is requesting a 10’ front setback from West Shafer Drive and a 5’ front setback from Untalulti Drive to relocate the existing on premise sign from the new proposed right-of-way line due to the proposed street widening project.

President Thompson asked, and sir you are?

Lawrence Blaser stated, Larry Blaser.

President Thompson asked, okay do you have anything else that you would like to present to the Board sir?

Lawrence Blaser stated, no.

President Thompson asked, okay, all right. Director Weaver, anything?

Director Weaver stated, no, I don’t think so. I think that it’s pretty self-explanatory this is because of the road widening.

Dave Scott asked, Director Weaver, are we going to have a lot of these?

Director Weaver stated, I believe so.

Dave Scott asked, so we’re going to kind of set precedence here how we handle this?

President Thompson asked, just a second Dave, Attorney Altman, do you have anything to add there? Then I will come back to you Dave.

Attorney Altman asked, the only thing that I would suggest is for the record is I understand that you’re taking the existing sign and just moving it back and putting it in the location as shown on the survey right?

Lawrence Blaser stated, yes.

Attorney Altman stated, that’s what I thought, very good.

President Thompson stated, Dave Scott, back to you.

Dave Scott asked, I guess my question is, are we going to be doing, what’s the setback supposed to be for off premises?

Director Weaver stated, 10’ from the leading edge.

Dave Scott stated, from the leading edge. I can’t tell from this survey, how far is it from the right-of-way?

Lawrence Blaser stated, more than that, it’s going to be, it’s going to be…

Carol Stradling stated, not from the right-of-way it won’t be 10’.

Lawrence Blaser stated, right-of-way no I mean the road.

Dave Scott stated, that’s, this…

Carol Stradling stated, the new project right-of-way.

Lawrence Blaser asked, are you talking about the road or the…

Director Weaver stated, not the surface, the right-of-way.

Dave Scott stated, oh, okay, this is West Shafer Drive here that we’re looking at.

Dave Stimmel stated, the right-of-way is that line right beside it.

Dave Scott asked, yes, right there so it’s 10’ off of West Shafer Drive is what you’re saying?

Lawrence Blaser stated, yes.

Carol Stradling stated, but it looks like it maybe a foot off of the right-of-way.

President Thompson asked, does anyone here care to address the variance for or against?

Attorney Altman stated, I would suggest Dave, that probably from point of view of traffic, I would just suggest that the more important problem is that Untalulti Drive. The height probably makes the location there as good as you can probably get it but that it being set back and all the way that it does is probably the best way you can get away from the traffic problem there Untalulti Drive too so that…

Dave Scott stated, we have to just look at each one of these individually then…

Attorney Altman stated, I think that there’s just no way but look at them individually and you always set some sort of precedence.

Lawrence Blaser stated, I believe, I think they said there will be no visual impairment of any kind of right turn or left turn on Untalulti Drive. I was just, there is a road and a parking lot that goes up what it does is trying to get those signs over as far as possible so the traffic can still turn, it can still be used the way that it is now.

President Thompson asked, Dave Stimmel, do you have any questions or comments?

Dave Stimmel asked, what is it, just take the sign and move it back on the stone further to maintain some of that separation from the right-of-way, it’s not 10’ but it’s 6 or 7 is it going to appreciably injure the effectiveness of the sign?

Lawrence Blaser stated, just getting it as close as possible to where it use to be is, was the primary goal. The secondary is just, I don’t make habit of if the road see not only do cars and vehicles go up this road that we have but, vehicles with and trucks with trailers on them. This is a fairly sharp turn that we had to do to make it as wide as possible which means getting as close as possible to that sign so just giving them more room to do that is what we’re trying to get it as far South as possible.

Dave Stimmel stated, what you just said would lead me to believe that it should be further back for that reason, I mean further North this way.

Lawrence Blaser asked, isn’t the drive right here?

Dave Stimmel stated, yes.

Lawrence Blaser stated, so it would be this traffic coming up this road and making a turn.

Dave Stimmel asked, and the signs going to be where?

Lawrence Blaser stated, out this way, over here.

Dave Stimmel asked, and where is it going to be moved to?

Lawrence Blaser stated, presently it’s right there.

Dave Stimmel asked, so you’re going to turn behind the sign is that what you’re saying?

Lawrence Blaser stated, the traffic comes up this road, this is an old road that goes up to the campground, vehicles come with their trailers up this road to make the turn going this direction, make it as wide as possible to make…rocks….

Dave Stimmel stated, okay.

Dave Scott stated, so you can’t move your sign back or you wouldn’t be able to make that turn.

Lawrence Blaser stated, the footing with go this way on the sign more in the traffic is impaired.

Dave Scott asked, what’s over here nothing?

President Thompson stated, why don’t you explain to them what you did to Dave and Dave if you would please.

Lawrence Blaser stated, presently the sign is here and this is road, this is West Shafer Drive….

Attorney Altman asked, anybody else that is interested please come forward…

Lawrence Blaser stated, but anyway, this dotted line…

Carol Stradling stated, and the angle changes…

Lawrence Blaser stated, yes, this is the present little black top road that we have for parking, going from the lower parking lots to the upper parking lot. This is stone right through there so in order to make a left turn with a vehicle with a trailer they have to do it as wide as possible to get around there which is why we’re trying to get our sign as far as South as possible.

Carol Stradling asked, so this is stone but this is also stone here…

Lawrence Blaser stated, this is the road.

Carol Stradling asked, this is the road but this stone….

Lawrence Blaser stated, it’s kind of hard to point out here but that stone will be, this is a barrier that this stone will be replaced with, the County’s putting in.

Carol Stradling asked, okay, so that stone will go?

Lawrence Blaser stated, yes, that stone is going to go.

Carol Stradling stated, okay, all right.

Lawrence Blaser stated, and this barrier, West Shafer Drive will actually be it will run along the road tie there.

Carol Stradling stated, okay.

President Thompson asked, okay.

Carol Stradling asked, thank you, do you need to include…

Attorney Altman stated, I think it would help to make that part of the record, we will call that Exhibit A please.

President Thompson stated, we should make a copy of it.

Dave Stimmel stated, President Thompson, I have to have more help.

President Thompson stated, I’m sorry, Dave Stimmel has a question.

Dave Stimmel stated, Mr. Blaser, I need some more help, I’m just trying to make sure that I understand and it’s better with less lines. Too many lines confuse the hell out of me, okay like this, you own all of lot 35…

Lawrence Blaser stated, yes.

Dave Stimmel stated, all that I’m trying to say is why not move it back here.

Lawrence Blaser stated, well then we would be getting closer to the road right here.

Dave Stimmel stated, I don’t see a road here that’s what I’m trying to understand.

Lawrence Blaser stated, I understand.

Dave Stimmel asked, where would the road be?

Lawrence Blaser stated, I can’t do that, exactly where the road is….

Carol Stradling stated, this one is the adjusted one because it tells you…

President Thompson stated, that’s a good point…

Carol Stradling stated, it’s the same thing….

Dave Stimmel stated, okay that’s what I was trying to understand because this does not show…

Carol Stradling stated, they’re really changing the angle of West Shafer Drive.

Lawrence Blaser stated, riff raft right here.

Dave Stimmel stated, okay, now I’ve got ya.

Lawrence Blaser stated, that’s Untalulti Drive, that’s the drive here and that’s West Shafer.

Dave Stimmel asked, okay, so they’re going to turn here too or just here?

Carol Stradling stated, here’s the existing one so he’s loosing all on that. His drive is here.

Dave Scott stated, um hum.

President Thompson stated,…come easy any more do they.

Director Weaver stated, no, you should work in the office.

President Thompson stated, oh, I bet.

Lawrence Blaser stated, and that’s West Shafer…

Dave Stimmel stated, okay, so they are going to turn here too? Or just here?

Carol Stradling stated, here is the existing one.

Lawrence Brown stated, actually just a road that leaves to the lower parking lot to the upper parking lot. West Shafer Drive as far as turning, their new turning it’s going to be the Untalulti Drive is going to be way out here. This road is for…

Dave Scott asked, and your new sign is going to be right…

Lawrence Blaser stated, that’s presently there it’s going….

Director Weaver asked, do you want me to tear it off?

Gary Barbour asked, huh?

Director Weaver asked, do you want me to tear it off?

Gary Barbour stated, yes, we could have gone through a big lawsuit over that same thing where the people added the house on their garage to do it.

Dave Scott asked, and when they come out to get on West Shafer from this road they’re going to be sitting there looking so your sign is going to be back?

Lawrence Blaser stated, yes, the sign is not going to be in the way here.

Dave Stimmel stated, okay.

Dave Scott stated, yes.

Dave Stimmel stated, you have to understand that this is the first one that is related to this expansion and to start it off with basically a zero setback of that, maybe not the right precedence to start with.

Lawrence Blaser stated, okay.

Dave Stimmel stated, just so you understand where I’m coming from.

Lawrence Blaser asked, …views?

Gary Barbour stated, and no one is going to be…

Carol Stradling stated, that’s why he was gone but Director Weaver indicated that…

Gary Barbour stated, I think that they could be easier, get a contractor, they know what it takes.

Dave Stimmel stated, yes they do believe me, for the record.

Attorney Altman stated, give it to Director Weaver, she’ll do that.

President Thompson asked, is there any other discussion? Dave Scott?

Dave Scott stated, no.

President Thompson stated, Gary Barbour? Carol? If not, are we ready to vote?

Director Weaver stated, I have something that I want to present.

President Thompson stated, I’m sorry, that’s right, you said that, I’m sorry.

Director Weaver stated, this variance is for an on premise sign and the two little signs that you have down on the bottom that’s what the permit was issued for. Also, those are considered off premise signs so this will not allow those signs to stay on there, the one for Big Chief.

Lawrence Blaser stated, yes, I have already notified both of those folks.

Attorney Altman stated, okay, and that will minimize some of the obstruction of the sign.

President Thompson stated, okay, just so you’re aware…

Larry Blaser stated, yes.

President Thompson stated, I guess, if nothing else, let’s vote.

With no 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 from West Shafer Drive and a 5’ front setback from Untalulti Drive to relocate the existing on premise sign from the new proposed right-of-way line due to the proposed street widening project on Lots numbered 32 and 35 in Untalulti Addition in Union Township, White County, Indiana. Except that part of lot numbered 32 in Untalulti Addition in Union Township, White County, Indiana described by:

Beginning at a ½ inch iron pipe at the Southeast corner of said Lot #32; thence South 87 degrees 06 minutes West 20.28 feet to a ½ inch iron pipe on a tangent curve, concave to the South, having a radius of 175.00 feet; thence westerly along said curve 9l75 feet through a central angle of 03 degrees 11 minutes 32 seconds to a ½ inch iron pipe; thence North 14 degrees 46 minutes 49 second West 88.24 feet to a ½ inch iron pipe; thence North 35 degrees 29 minutes 49 seconds West 41.09 feet to a ½ inch iron pipe; thence North 64 degrees 43 minutes 41 seconds East 15.15 feet to the East line of said lot #32; thence South 26 degrees 54 minutes 13 seconds East 138.44 feet to the point of beginning.

Also lots numbered 33 and 34 in Untalulti Addition, in Union Township, White County, Indiana, Except the following described tract; Beginning at a point which is 644 feet North and North 24 degrees West 318 feet of the southeast corner of the northeast quarter of the southeast quarter of Section 17, Township 27 North, Range 3 West, in Union Township, White County, Indiana. This being the southwest corner of the land to be described; Thence North 41 degrees 30 minutes East 145 feet; thence North 1 degree East 78 feet to a shell bark hickory tree; thence North 23 degrees West 18 feet to an iron stake; thence downhill 15 feet to the water line of Shafer lake; thence following the meandering line of Shafer Lake 176 feet to North and East boundary line of Monticello and Winamac highway; thence following the North and East boundary line of Monticello and Winamac Highway 102 feet to the place of beginning. Being part of lots 33 and 34 in Untalulti Addition, Union Township, White County, Indiana and located in the southeast quarter of section 17, Township 27 North, Range 3 West, White County, Indiana.

Also, beginning at a point which is Six Hundred forty-four (644) feet North and North Twenty four degrees West (N 29 W) three hundred eighteen (318) feet of the southeast corner of the Northeast quarter of the Southeast quarter of section seventeen (17) township twenty-seven (27) North Range three (3) West in Union Township, White County, Indiana. This being the Southwest corner of land to be conveyed. Thence North forty-one degrees and thirty minutes East (N 41 30’ E) One hundred forty-five (145) feet; thence North one degree East (N 1 E) Seventy-eight (78) feet to a shell bark hickory tree; thence North twenty-three degrees West (N23 W) Eighteen (18) feet to an iron stake; thence downhill fifteen (15) feet to the water line of Shafer Lake; thence following the meandering line of Shafer Lake one hundred seventy-six (176) feet to the North and East Boundary line of the Monticello and Winamac highway; thence following the North and East boundary line of Monticello and Winamac Highway one hundred two (102) feet to the point of beginning.

This description being a part of Lots numbered thirty-three (33) and thirty-four (34) in Untalulti Addition, being located in the southeast quarter of Section seventeen (17), Township twenty-seven (27) North, Range three (3) West in Union Township, White County Indiana.

Lots Numbered 32 and 35 in Untalulti Addition in Union Township, White County, Indiana. Except that part of Lot Numbered 32 in Untalulti Addition: Also part of lots numbered thirty-three (33) and thirty-four (34) in Untalulti Addition, being located in the Southeast Quarter of section seventeen (17), Township twenty-seven (27) North, Range Three (3) West in Union Township, White County, Indiana.

COMMON DESCRIPTION: The property is located north of Monticello at 2419 N. West Shafer Drive.

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.

President Thompson asked, while you’re doing this, do you know how many of these we’re going to be faced with?

Attorney Altman stated, yes, you’re right.

Dave Scott asked, pardon me?

President Thompson stated, how many of these we’re going to be faced with up and down that street.

Dave Scott stated, that’s why I said…

Attorney Altman stated, you need to get a building permit.

****

President Thompson stated, I think right now would be a good time to take a couple three-minute break. Go out and stretch your legs or whatever, we’ll take a brief, come back in a couple of minutes. That was Attorney Altman’s idea but, it was a good idea, I have to give him credit.

There was a break among the Board and audience members.

President Thompson stated, okay, everybody take a seat, let’s continue. We have an appeal.

****

Appeal #4 Don Pauken and Bill Pyle, Appellants; Appellants are appealing the Area Plan Director’s determination (interpretation) of Article 9.4002 of the White County Zoning Ordinance at the Area Plan Commission meeting on May 9, 2005. Tabled from June 16, 2005.

President Thompson asked, okay, we don’t do a lot of these, Attorney Altman, where do we begin, who goes first here?

Attorney Altman stated, the appellant comes forth.

President Thompson stated, okay, the appellant has the floor.

Don Pauken stated, my name is Don Pauken. I have a question…. two of the members here were not at the last meeting. Do they have all of the exhibits that were produced prior to this time?

Dave Stimmel stated, I believe so.

Director Weaver stated, to the best of my knowledge, they do.

Dave Stimmel stated, yes.

Don Pauken asked, are the exhibits, were they highlighted like the ones that I produced?

Director Weaver stated, I can not verify that, but they should have been yes.

Don Pauken stated, because it’s important those particular things that are highlighted. Exhibit A if you write on the first page Exhibit A.

Director Weaver asked, I don’t remember who was here do you?

President Thompson stated, no, I really don’t.

Carol Stradling asked, is this what you’re looking for Dave?

Dave Stimmel stated, no, I don’t have it.

Director Weaver asked, that’s all right, I’ll go get you copies. What else is there Don?

Don Pauken stated, it should be marked Exhibit A, B, C and D…

Someone stated, I still don’t have them right this minute, she is going to get me some.

Director Weaver asked, is that all that there was Don?

Don Pauken stated, yes, there was 4.

President Thompson stated, in order to continue…

Don Pauken stated, I have those….

Director Weaver asked, you do?

Don Pauken stated, yes.

Director Weaver stated, okay.

President Thompson asked, Carol and Gary, you each have your copies obviously?

Carol Stradling asked, I think so, lets just, Mr. Pauken, the ones from Merriam Webster on line is that correct?

Don Pauken stated, you have Exhibit D as us, Exhibit A…

Dave Stimmel stated, okay.

Don Pauken stated, Exhibit D, let me find one of those, Exhibit C and…

Director Weaver stated, President Thompson there’s another one of these in their appeal file.

President Thompson stated, this will work, I’m just tired of it.

Don Pauken stated, the issue in this appeal is quite simple. Did the Area Plan Director error in her determination or interpretation of Article…White County Zoning Ordinance Article 9.4002 failure to appear. I would like to initially have a quick review of the previous meetings evidence the quick review of the previous meetings evidence is probably in order, Page 1 of Exhibit A shows the highlighted Article in question 9.4002 failure to appear and I would like to read that again. When a petitioner or authorized representative has failed to appear to present his petition at either of two consecutive meetings the petition shall be dismissed. Exhibits B & C show the appendix sheets from the February 14th and March 14th Area Plan Commission meetings where petitions 873 and 874 were to be acted upon. Neither the petitioner or his authorized representative was present some of the people here tonight as well as my self were at these meetings and can attest those two failures to appear. Exhibit B shows the definitions of the word appear and present taken from Webster’s in accordance with the White County Zoning Ordinance, Article 2.0010 and those things are highlighted. In the Exhibit B and if you look on appear, yes, appear and the, it’s to come in site to be or come in site to show up to come formally before an authoritative body present to bring before the public to make a presentation. So in essence the petitioner and authorized representative was not there physically to present his petition. New evidence, because I did not have the official approved and recorded minutes from the May 9th Area Plan Commission meeting I would like to place into evidence now those pages of the minutes where Area Plan Director expressed her opinion that it was not a failure to appear. The first thing that I want you to look at is on page 11 the second page of that exhibit, Attorney Altman is that Exhibit E? Will you mark that Exhibit E?

Attorney Altman asked, it has been submitted and I presume the Board is willing to receive new evidence today?

President Thompson asked, is that fine with the Board Carol?

Carol Stradling stated, we already have minutes and evidence, Director Weaver….

Don Pauken stated, this was the, these minutes are the official approved and recorded minutes, what I had given you before at the meeting the rough draft.

Carol Stradling stated, I guess what I’m saying is Director Weaver had presented these minutes to us earlier.

Director Weaver stated, those were not recorded, they were not the actual recorded minutes.

Carol Stradling stated, okay.

Director Weaver stated, they were the proposed at that point and time.

Attorney Altman stated, I don’t have any trouble with doing that but are we receiving new evidence this evening is what I’m trying to say. I don’t have any trouble doing that but I think that that Board ought to decide if it is or isn’t receiving new evidence this evening.


Don Pauken stated, what we’re doing is…

Attorney Altman stated, hold on.

President Thompson stated, just a second.

Attorney Altman stated, we have a question before the Board and that’s fine I just, we need to determine that.

Carol Stradling stated, I guess that my position stands that if we’re here tonight we should hear what people have to say pertaining to this, pertaining to this failure to appear definition.

Attorney Altman asked, is that agreeable tot he Board?

Carol Stradling stated, if it’s not pertaining to the failure to appear definition and appeal then no I don’t want to receive any new evidence but if it helps clarify the issue.

President Thompson asked, so you’re willing to accept what he’s handed out?

Carol Stradling stated, yes, yes…

President Thompson stated, okay.

Carol Stradling stated, I guess my initial question was if we already have it do we submit it again but, then we don’t have the recorded minutes in so, it’s not a duplication.

President Thompson stated, okay.

Attorney Altman stated, yes, it isn’t marked Exhibit E it is page 1, Page 11…

President Thompson asked, is that agreeable with the Board?

Dave Stimmel stated, yes.

Attorney Altman stated, and 12.

President Thompson asked, Dave Scott?

Dave Scott stated, yes.

President Thompson asked, Gary Barbour?

Gary Barbour stated, yes.

President Thompson asked, Carol?


Carol Stradling stated, um hum.

President Thompson stated, okay.

Attorney Altman stated, of May 9, 2005 meeting.

President Thompson stated, go ahead sir.

Don Pauken stated, okay, on page 11 second page there is highlighted and I guess as far as the Area Plan Directors’ definition as well as the attorney’s take on the matter and it says, “when I read this information in my opinion I feel that it was not a failure to appear simply because we were notified before each prior that he would not be in attendance”. “I have talked to Jerry Altman our attorney and he agrees with me.” Now on page 12 the next page of that Exhibit E, Mr. Altman also questions whether failure to appear means the petitioner must be physically present. The answer to that is yes according to our Exhibit B, D, which I previously presented you, have to be there in view of the other people. So obviously, you have to be physically there and that’s in the White County Zoning Ordinance that we take the Webster’s Definition when the definition of the word is not in the zoning ordinance itself. That’s in Article 2.001 further down on page 12 Attorney Altman indicated that by the law and by the ordinance the interpretation here is that Director Weaver is to interpretative that and make a decision on that. We disagree with that according to the last page of Exhibit A Section 7.00 the Area Plan Director is to enforce the ordinance not to interpret any specific phrase to her liking. Likewise in Chapter 4 of the Indiana Code local planning and Zoning where the duties of the Executive Director are listed. They do not include anything about interpreting the ordinance further no where in White County Ordinance or Indiana code 36-7-4 does it say or suggest that a petition notification prior to the meeting constitutes an appearance at the meeting. I would like to place in evidence Indiana code 36-7-4-1020 along with page 2 of the white county zoning ordinance.

Attorney Altman asked, I presume we continue?

President Thompson asked, yes, is that acceptable to the Board?

A Board member stated, yes.

President Thompson stated, I believe so okay.

Attorney Altman stated, Exhibit F.

Don Pauken stated, as shown by this exhibit White County is bound to abided by their validity adopted zoning ordinance and you the Board of Zoning Appeals are obligated to take judicial notice of all of the ordinances adopted under the Indiana code chapter 4. The answer to the question I asked previously at the beginning as to whether the Area Plan Director erred in her interpretation of article of the Article 9.4002 is yes. In essence if our appeal is rejected the implication is that for this issue, Articles 9.4002, 2.0010 Section 1.60 and 7.00 of the White County Zoning Ordinance as well as Indiana code 36-7-4-1020 are considered to be invalid by the Area Plan Director and the Area Plan Commissioners legal council. Can you in good conscious allow this to happen?

President Thompson asked, you’re completed?

Don Pauken stated, I’m completed.

President Thompson asked, Attorney Altman do you have something before I…

Attorney Altman stated, no I don’t.

President Thompson asked, care to respond? Okay, all right. Dave questions for him?

Dave Stimmel stated, nothing right now.

President Thompson asked, Dave Scott?

Dave Scott stated, I don’t think that I have anything right now either.

President Thompson asked, Gary? Carol Stradling?

Carol Stradling asked, you know the other night we were looking and on the job description and the duties Attorney Altman, can you help me, what’s the citing on that?

Attorney Altman stated, I would have to look at the book at this time. Page 55 the Zoning Administer a zoning director shall be appointed by the Area Plan Commission to enforce this ordinance he may be provide with assistance from such persons as a commission may direct 6.0001 duties and responsibilities. If the Area Plan Director shall find any of the provisions of the ordinance being violated, he shall notify in writing the person responsible for such violations, indicating the nature of the violations and ordering the action necessary to correct it. He shall order the discontinuance of illegal uses of land, buildings and structures; and the removal of illegal buildings and structures or of other, of illegal additions, alterations, structural and changes; the discontinuance of any illegal work being done. He shall take any other action authorized by this ordinance to insure compliance with or to prevention of violations if it’s of its provisions. The Area Plan Director shall have the authority to make inspections of buildings, premises necessary to carry out his duties in the enforcement of this ordinance. It shall be unlawful for the Area Plan Director to approve a certificate of occupancy or building permit of any excavation or construction or use until he is inspected such plans in detail and has found that it be in compliance. Whenever a violation of this ordinance occurs or is alleged to have occurred, any person having, any person may file a written complaint. Such complaints are stated fully, shall state fully the causes and basis thereof and shall be filed with the Area Plan Director. He shall record properly such complaint and immediately investigate and take action thereon as provided by this ordinance and make answer to the complaint no later than 30 days from the date of the complaint.

Carol Stradling asked, so what you had Mr. Pauken was from the Indiana Code, not from our ordinance?

Don Pauken stated, right, I have that as well as the ordinance.

Carol Stradling stated, okay.

Don Pauken stated, I didn’t site the…whichever is most restrictive is the one that governs.

Attorney Altman asked, will you look at this there are exhibits I don’t see.

President Thompson asked, the last one you mean?

Attorney Altman stated, yes, yes.

President Thompson stated, I have E that’s…

Attorney Altman stated, that would be it…

President Thompson stated, there’s F that’s…

Director Weaver stated, yes.

President Thompson asked, that’s the last one isn’t it?

Director Weaver stated, I don’t think that he gave everyone that.

President Thompson asked, he didn’t?

Director Weaver stated, she just gave it back.

Attorney Altman stated, I have F right here.

President Thompson asked, okay, you don’t think that is the last one or you do?

Director Weaver stated, I think that he handed Carol something that I…

President Thompson stated, okay.

Director Weaver asked, Carol are you the only one that he gave that to?

Carol Stradling stated, I do believe so, I gave it back to him.

Don Pauken stated, I didn’t hand that out.

President Thompson stated, okay.

Don Pauken stated, if you want it…

Attorney Altman asked, and that would be what document are we talking about?

Don Pauken asked, what it make it F?

Attorney Altman stated, no, we already have an F.

Don Pauken asked, all right, G.

Attorney Altman stated, that would be what, I know you said but I wasn’t listening, I was reading the ordinance. I don’t see any reason why, it appears to be I.C. 367-14-312 indicates organization duties of the Executive Director and it indicates the prop, the rest of it I would have to check but I presume is the current…

Don Pauken stated, yes.

Attorney Altman stated, Statute 312 and if so I mean he’s proposing it as an Exhibit G. I would have to check that to make sure but I would presume that is it.

Carol Stradling stated, so Mr. Pauken, your point here is that Director Weaver interpreted the ordinance and she is not allowed to interpret the ordinance?

Don Pauken stated, she is to get, she can, she’s allowed to read the Ordinance and enforce it but, as far as the interpretation or definitions of the words they can’t go against what the ordinance has already said….

Carol Stradling stated, okay.

Don Pauken stated, words out of Webster and so forth.

Carol Stradling asked, who would you say would be charged with interpreting what these words are?

Don Pauken stated, I would say that you go according to the Ordinance and that’s what I meant by the 2.0010 of the White County Zoning Ordinance and let me read exactly what that says here. That’s in your packet page 2, on Exhibit A highlighted it says, any words not defined in Section 2.10 shall be construed in their general accepted meaning as defined by Webster’s Dictionary latest edition.

Carol Stradling stated, let me share with you where I am on this.

Don Pauken stated, all right.

Carol Stradling stated, okay, you share several definitions with us from Webster’s.

Don Pauken stated, that’s correct.

Carol Stradling stated, okay and you can do that for every word in this ordinance. You could, let me finish, you could look up every word in this ordinance and find a whole listing of definitions and it is up to each one of us to choose which one of those specific definitions we are going to apply. I’m going to give you an example, Tuesday night we were here with a committee to re-write the ordinance, so that it is understood, so that it gives the public their rights and their responsibilities. So that it’s easy to use and easy to apply so that it is fully understood. I tell you we were there for hours looking at how things were stated to make sure what each person wanted out of that particular part of the ordinance was represented. I will tell you there were two groups of people and lots of words going back and forth, very good discussion but what one person understands to be a certain way is not what another person understands. No matter how you define it, no matter how clear you get the Webster’s you have highlighted a couple of definitions, I think that I would choose definitions for appear and present or present.

To be honest with you I don’t believe Director Weaver may have interpreted it but it was the Area Plan Commission who voted who made the decision to table and then dealt with it later. There were members on that Board who could have made a completely different decision. We are not led by Director Weaver we refer to her for guidance we look up things on our own and we rely on the public presentation of material and information before we make our decisions. We refer to our attorney and for me I like to hear what everyone wants to say pertaining to an issue just as we allowed you to present more information tonight. I want to hear what anyone has to say pertaining to an issue, so that we can interpret that, we can interpret what the ordinance says and make a decision. To me the ordinance, I could interpret that completely differently, even looking up Webster’s I would interpret that failure to appear definition to be completely different. Thank you.

Don Pauken stated, the uh, in answer to that, the key words are still in the White County Zoning Ordinance shall be construed in their general accepted meaning if you look at Exhibit D, appear the first definition is usually the one that is accepted. To come to be or come in site to show up the second one says to come formally before and authoritative body that’s the first two definitions, those are the commonly accepted definitions. Present to bring before the public is the number one definition. Yes there are other things like the present the number 1, A is to bring or introduce into presence of someone especially of superior rank or status. Well we know what that is, here’s so and so that’s presenting this, B of the number one definitions which is the commonly generally accepted meaning to bring before the public present to bring something before the public that’s what I read the 9.002 or, that’s, 9.4002. That’s how you’re suppose to take this it says in it’s general accepted meaning as defined in Webster’s. Those are the number one meanings yes I suspect you could look down through these and to become manifest to come forward as a patient, well that doesn’t apply.

Carol Stradling stated, from what I understand from our legal advisors failure to appear in a court can have different ramifications and your, you can appear in writing, you can appear having someone else to appear for you.

Don Pauken stated, so could, Rangeline Properties, could have had a representative. They did not have a representative you just said appear before you this ordinance allows that to happen but it didn’t happen.

Carol Stradling asked, so your appeal is as stated the appellants are appealing the Area Plan Directors determination, interpreting of Article 9.4002 of the White County Zoning Ordinance at the Area Plan Commission meeting on May 9th. You are appealing that?

Don Pauken stated, yes.

Carol Stradling asked, for what purpose?

Don Pauken stated, because according to 9.4002 that those two Rangeline Properties petitions should have been, the meeting on April, in April should have never have happened. It should have been dismissed. Now if you go ahead and do something improperly in a meeting where you have votes and it’s found out that you did it illegally, it’s non void and what we’re saying is those two petitions should have been dismissed and they weren’t.

Carol Stradling asked, and you’re saying that they should have been dismissed because of a definition, of Director Weaver definition in May?

Don Pauken stated, well, you want to back up to the Commissioners meeting where these things went to the Commissioners. These two petitions 873 and 874 and at that time I said that this thing, these April meetings where the vote was taken, of course I’m talking about a vote but anyway that meeting should have never happened. The meeting, that part of the meeting should have never happened because Area Plan was in violation of 9.4002 and at that time they tabled it and asked for a determination from the Area Plan Commission on their definition.

Carol Stradling stated, which they could choose to accept or decline.

Don Pauken stated, which they had a discussion at their meeting in May, that’s the, page 11 and 12 out of that meeting.

Carol Stradling stated, okay.

Don Pauken stated, and at that time Director Weaver gave her opinion there was no discussion, it’s an opinion and read it through in the beginning on page 11.

President Thompson asked, does anyone else care to address the Board in this matter? Yes sir?

Dow Dellinger stated, ladies and gentlemen of the Mr. Chairman, I’m Dow Dellinger I’m here on behalf of Indiana Waste Systems, the appellee in this case. Carol has her hands pretty close to being around the issues I think at this point and time this petition or request for dismissal should have actually happened in the appeal not in the request to have the zoning modified. For several reasons, one the appeal has been brought forth on Director Weaver’s interpretation of the statue, which has nothing to do with the action that happened the night that the vote was taken. Secondly, the damage I think that they’re insinuating to would have happened at the tabling of the issue if they objected to the tabling of the issue. They should have objected there on the spot and they should have objected there under Roberts Rules of Order, which I think is what their meetings are governed by. Roberts Rules of Order say that if there is a procedural issue that’s brought forth they want to object to the tabling then someone needs to do it then and there they didn’t do that. They waited until almost 60 days later to object to anything and that was after the issue was brought forth to be voted on in the April Meeting it’s actually, about 57 days past the time the tabling that they are really objecting to happened. So they can’t appeal an issue under your Zoning Ordinance 8.3 I believe I want to make sure that I give you the right paragraph yes 8.3 requires the appeal to take within 30 days of the action or inaction. Simply put, they were just too late to file their appeal. You don’t have the standing to dismiss anything at this point and time the vote has been taken and passed to the Commissioners this Zoning Board of Appeals has no ability to withdraw that vote that has already taken place. They should of objected there on the spot if they didn’t want to have the tabling they should have made the Board take a vote and they didn’t do that. You can’t let them come back in later then and say well we don’t like the vote that was taken we want to appeal it and the appeal itself is dead wrong.

The appeal itself is objecting to Director Weaver interpreting, that’s not what happened, Director Weaver doesn’t run the meetings just like she doesn’t run the meetings tonight the Board is the one that makes, is having the meeting and the board is the one that does the voting. It has nothing to do with Director Weaver’s interpretation of it so this appeal needs to be dismissed it needs to be gotten rid of and the issue with the zoning needs to get to the Commissioners as soon as possible. So I’ll be as brief as I can, do you have any questions, I will be happy to answer those.

We have provided you proposed findings of facts. I prepared those and gave those to Attorney Altman and Director Weaver both if the petition is not going to be dismissed we would like for you to review those and vote on those findings. If the appeal is not denied tonight, we would like for you to review those and vote on those if you would please. If the appeal is going to be denied we will be happy to not make you guys review any findings this evening.

Attorney Altman stated, one second for the record and then there may be questions Mr. Dellinger. Since you brought that up I did write a letter July 13th to Mr. Pauken, Mr. Pyle and Mr. Dellinger asking them as attorney for the Board of Zoning Appeals, requesting that they prepare and submit findings of fact inclusive with the law relative to this appeal I asked to be submitted some time ago. I did get findings of fact from Mr. Dellinger, at this time I have not received findings of fact from either Mr. Pauken or Mr. Pyle. I did some time ago give you those findings of fact, in fact at the last meeting, I think that brings that conversation of record. Director Weaver just took the ones that Mr. Dellinger gave me and are going to run copies of that and I think we’re done until the tape is done.

President Thompson stated, yes.

Attorney Altman stated, until Director Weaver’s back so we’re off of the record right now.

(The tape was changed at this time)

President Thompson stated, okay.

Attorney Altman stated, okay back on the record, again for the record I have just circulated the proposed, findings of facts submitted by Rangeline Properties Inc and Indiana Waste Systems Inc to the Board members at this time.

President Thompson asked, are there any questions for Mr. Dellinger or the Board?

Carol Stradling asked, Mr. Dellinger could you please you are an attorney, you present in court can you tell me ways that you are able to present a client in court?

Dow Dellinger asked, you mean as far as appearing?

Carol Stradling stated, appearing yes please.

Dow Dellinger stated, well, important the way 90 percent of us appear as one of two ways. Either file an appearance in writing, which is just a statement that says I represent the client the client is appearing in this matter and gives notice that everything should come through our office. The second way is to appear at the hearing and say your honor we appear today before this court but, there are jurisdictional issues where you can appear by briefer motion and there are several ways you can appear all of which are included. All of our, some type of writing others just appear in the hearing in person and then can say you’re here in person or on back of so and so there are several ways that you can appear in. An issue in writing I think that’s what your leaning to there’s a couple of ways to do that.

Carol Stradling asked, even if the issue is not addressed at that time in other words the case would not be heard in the court at that time?

Dow Dellinger stated, correct, if there is a jurisdictional issue, often times you will file a brief that says that you appear on behalf of that person just to address the jurisdictional issue. That can be done a lot of times when an out of State Attorney for the Police maybe the issue should be taken up in another court of proper jurisdiction.

Carol Stradling asked, the issue isn’t even discussed at that time its just…

Dow Dellinger stated, the issue won’t be discussed at that time it will be continued until the court can make their ruling on whatever that issue may be as presented, to in writing. Then the Courts of Indiana have great leeway they can decide and issue if they want to and then you can take it up on a proper appeal from there. An appeal the only way that you appear is in writing and in through proper, properly filed documentation and in this issue we don’t think that the issue has been properly appealed and they are not even appealing the correct issues. The issue should be that they should object to is the tabling itself and they are too late to do that they can’t, there’s nothing to appeal with Director Weaver’s interpretation of the statute because it is part of the ordinance that has no effect on the vote whatsoever. Director Weaver can interpret it say that it’s raining outside and that has not effect on the Board’s vote. We’re voted at that meeting and if they wanted to object at that voting they should have made the Board, they should have addressed that at that meeting that they should have never allowed the tabling. Then if they wanted to appeal that issue, you know if the Board then voted on it, then they could take the appeals to you guys and say we object to that issue at the meeting and they overruled it and they voted and then we can go back and say they improperly voted on the issue they can’t do it now because they didn’t object to it. It’s just like if I had a criminal trial I won’t object to the entrance of certain evidence. I can’t come back at an appeal and say you know I’m a better trial lawyer and appeal than I am in trial that issue wasn’t brought forth. The appellant court can’t review that just like you guys can’t review something that had no effect on the vote and that’s what they’re asking you to do, they are asking you to take some appeal to an interpretation that had no effect whatsoever on the issue. The issue was how it got voted on at the board of at the area plan commission.

Carol Stradling asked, and how many members were there that night?

Director Weaver asked, which night?

Carol Stradling asked, at all three. I guess that it would be the February and the March sorry…

Director Weaver stated, I don’t have that book here no, I did the attendance is not on here I have only copied the parts, oh, yes it is…


Carol Stradling asked, actually I think Mr. Pauken…

Director Weaver stated, February 14th…

Attorney Altman stated, eight, eight at February 14…

Carol Stradling asked, there were 8 present?

Director Weaver stated, yes.

Carol Stradling asked, and none of those Board members recorded any kind of an objection to tabling it?

Director Weaver stated, no.

Attorney Altman stated, and eight at the March if my count is right.

Director Weaver stated, I came up with seven.

Attorney Altman asked, how many?

Director Weaver stated, seven, oh, I apologize, that’s the April meeting.

Attorney Altman stated, so eight at both I think Carol.

Carol Stradling asked, and at those meetings you had not made any interpretations of what failure to appear is?

Attorney Altman stated, you better look at the minutes and see. That’s how it speaks, that’s how the Board’s speak is by their minutes and what it really amounts. I think Mr. Dellinger said this the last time I think he’s exactly correct that the bodies do speak by the minutes and you have to refer to that as to what happened.

Carol Stradling stated, I’m just trying to…

Attorney Altman stated, I understand…

Carol Stradling stated, sort through what has been said, and pull out the pertinent facts.

Attorney Altman stated, and the only thing that I’m trying to say is that the pertinent facts are what was, was in the minutes.

Carol Stradling stated, thank you.

President Thompson asked, back on the timetable. I’m like Mr. Dellinger, why wasn’t this brought to our attention earlier and if we do continue through this are we opening the door for anybody and everybody to appeal any of our decisions at any time and there’s no time frame is there?

Attorney Altman stated, I think our ordinance clearly says it must be done within 30 days, the state law says that too.

President Thompson stated, yes.

Attorney Altman stated, that we’re double operating under, so I mean they can file something and as an attorney, you can file in court most anything. As Mr. Dellinger knows there are constraints and you had better be within them if you are going to make a noise like a lawyer and be effective and that’s all that I’m saying. I think that he is exactly correct there are 30 days with which to file appropriate appeal.

President Thompson asked, so we are in that 30-day framework? The are?

Attorney Altman stated, they are required to be within that 30-day framework.

President Thompson asked, are they?

Attorney Altman stated, I think that you’re as good at arithmetic as I am, you take the number of days from that’s your decisions.

Dow Dellinger stated, the appeal was filed about 57 days after the tabling actually occurred.

Attorney Altman stated, the February 14th is the first day that you’re looking at and March 14th is the second day and the appeal I’m looking here…

Dow Dellinger stated, May 11, 2005 is the date of the appeal.

Attorney Altman stated, that is Mr. Dellinger you computed that from March…

Dow Dellinger stated, I think that was the date…

Attorney Altman stated, from March to May the 11th, March 14th to May 11th you computed that is 57 days okay so that’s I think that is the facts.

President Thompson stated, the nuts and bolts of it isn’t it?

Dow Dellinger stated, and more importantly the issue that they have appealed is just not an issue because….it’s simply not an issue of appeal I understand what they have tried to get out of it but they haven’t done it so they can’t come back and say well that’s what my appeal would have meant not it’s just simply not an issue that you guys can grant.


Attorney Altman stated, as your attorney I humbly submit, I agree totally with that. It is not something that was timely filed to make the appeal and I don’t think it has what the appeal has no impact at all on the decision that was made and that’s the tabling decision.

Dave Stimmel asked, it isn’t the fact that they tabled the decision it was based on the fact that Director Weaver got a phone call right?

Attorney Altman stated, but that isn’t what they appealed that isn’t they had to appeal that within 30 days of February the….

President Thompson stated, 14th….

Attorney Altman stated, 14th or March the 14th.

Dave Stimmel stated, okay, I, I….

Attorney Altman stated, they don’t have an appeal of that decision.

Dave Stimmel stated, I agree that, that is another issue but go ahead, go ahead.

Attorney Altman stated, I suggest that’s the only issue…

Dave Stimmel stated, that’s the only issue.

Attorney Altman stated, that when it comes to, I mean you can say and agree with him completely that Director Weaver’s interpretation in May was wrong headed as it can be but to what effect? When it comes down to what they’re when the petal hits the metal on these two issues the only petal there is to metal is in 30 days from March or 30 days from February and it wasn’t done.

Dave Stimmel asked, but isn’t Mr. Pauken, argument that the, the, had she not interpreted that as an appearance that the vote would have never taken place in the first place?

Attorney Altman stated, she didn’t interpret it, I mean you look at the minutes and that’s how you have to look at it…

Dave Stimmel stated, I agree.

Attorney Altman stated, I would say it’s the minutes…

Dave Stimmel stated, I read those several times Attorney Altman, and I guess that’s what I’m beginning to question because I think that it doesn’t in fact say that, it doesn’t mention the phone call, I mean I’m asking Director Weaver, is that exactly what happened they called out of…

Director Weaver stated, February 14th he came into my office prior to the meeting…

Dave Stimmel asked, and said I want to table?

Director Weaver stated, the evening of the meeting…

Dave Stimmel stated, the evening of the meeting…

Director Weaver stated, um hum and I did have it in a written request to table the request what has happened to that request since then I can not tell you.

Dave Stimmel stated, okay.

Director Weaver stated, March the 14th meeting I received a fax from his office requesting to table.

Dave Stimmel stated, okay, that helps me but I understand the other issue the time.

President Thompson asked, so what are the Board’s wishes?

An audience member asked, can we respond to that?

President Thompson stated, just a second, what are the Boards wishes on the point I brought up concerning the time issue.

Attorney Altman stated, I think that you need to vote on that.

President Thompson stated, I do too.

Attorney Altman stated, that’s what it really amounts to and then you decide that’s, okay, I understand I’m not going to stop but I don’t mean for you to stop…

President Thompson stated, yes…

Attorney Altman stated, all that I’m saying is the Board needs to make their findings of fact and that is then the effectiveness of what they decide.

Dave Stimmel asked, do you want to give Mr. Pauken time to, a few minutes to respond or not?

President Thompson stated, not really, I don’t. If the Board wishes I guess I can but I think the time issue answers the whole question.

Don Pauken stated, I would like to…

President Thompson stated, just a second. Would the Board like to have Mr. Pauken respond or would you like to vote on the time?

Carol Stradling stated, I think once again I would really like to hear, I mean this is a place to hear what people have to say pertaining to the issues which to me was, is the same thing as allowing the gentlemen to table it twice and come again. I want to give the public the opportunity to present what they have to say and I would like to give Mr. Pauken the opportunity to respond.

President Thompson asked, okay. Gary do you agree?

Gary Barbour stated, I don’t think that it’s necessary but I will go with whatever the majority of the Board wants.

President Thompson asked, Dave Scott?

Dave Scott stated, yes, I don’t mind listening to what he’s got to say yes, I don’t want Dow to leave though, I have a question for him.

Dave Stimmel stated, I agree, let him speak.

President Thompson asked, okay, do you want to address Mr. Dellinger right now or afterwards?

Dave Scott stated, no, afterwards.

President Thompson stated, afterwards okay, you have the floor.

Don Pauken stated, I have several things to talk about the rebuttal but specifically you want to hear over a time line.

Dave Stimmel stated, I would say that you’ve got about 3 minutes.

Don Pauken stated, okay 3 minutes.

President Thompson stated, good idea.

Don Pauken stated, the time line the area plan commission meeting of April, on their April 11th they voted on petitions 873 and 874 on April 18th the Commissioners met and I have the minutes of that meeting right here.

Director Weaver stated, they have a copy.

Don Pauken stated, and at that meeting when they directed, let me read that little sentence to you, Commissioner Heimlich suggested a motion from the Board to table this petition until discussion is made with Area Plan Commission about this issue. That was roughly 7 days after the April 11th on May 9th Area Plan Commission determined action that action was okay and you have the minutes of that meeting where Director Weaver made her opinion. We filed on May 11th, that’s 30 days from the Area Plan Commission meeting on April 11th, 30 days. The other things that I would like to comment on if I can Roberts Rules you don’t have to follow Roberts Rules. It’s not in the ordinance that we have to follow it, if we followed it, old business comes before the other stuff, we would have been first tonight, we weren’t first tonight and I’m not arguing that point. I’m just saying we don’t have to follow Roberts Rules and you don’t either.

The request for findings of fact I got it in the mail, regular mail on a Thursday afternoon. The request was finding of facts from Attorney Altman on Tuesday of the following week. That gave me two and a half days to get the thing together and get it into his office. That was not realistic at all request that short of a time. I called him about it and he said that you don’t have to do it if you don’t want to which, yes it was a request I admit, so I did not do it. I did not bother to come up with a finding of fact in fact I thought well that’s your job to come up with the findings of fact. Exhibit B was the minutes from February, there is an additional page there, that’s where the minutes were changed. That’s where Mr. Anderson stood up before the meeting started and said we’re not going to, this had been tabled we’re not going to discuss anything on Rangeline Properties 873, 874 all you people here that are here for that can leave now. Then the meeting started the original minutes did not have that statement in there and then the minutes were so called corrected but the proper word is amended later on to include Mr. Anderson’s statement. I don’t know why, that’s significant at all. We were told to leave so we didn’t even have anyone there to say we object to the tabling of course it was February but in, that’s my answer to that. The about appearing in court usually this is worked out ahead of time whether you can appear with a representative or someone else it’s, as far as White Counties Ordinance, Zoning Ordinance you could of. That’s in that Exhibit A, I think that it’s pages 3 and 4 there’s ways that the area plan commission could have tabled it and had no problem. They could of let him go and it wouldn’t of counted against him as two but they have to vote you have to make a motion and vote possessively that he can do that no votes. Yes.

President Thompson asked, question, the first part of your presentation I’m back on dates…

Don Pauken stated, all right.

President Thompson stated, you mentioned March the 11th and April the 11th?

Don Pauken stated, April 11th the Area Plan Commission meeting and that’s when the…

President Thompson asked, and you filed?

Don Pauken stated, no we did not file on that date, we went before the Commissioners on the 18th and said wait a minute those proceedings are non void because he had missed two meetings in a row. He was not there physically he did not appear to present, appear to present.

President Thompson asked, you mentioned March the 11th and you filed April 11th?

Don Pauken stated, May 11th.

President Thompson stated, May 11th?

Don Pauken stated, yes sir.

President Thompson stated, that’s more than 30 days.

Don Pauken stated, no that’s 30 days…

President Thompson asked, huh?

Don Pauken stated, it’s 30 days.

President Thompson stated, March 11th to May 11th….


Don Pauken stated, April 11th to May 11th.

President Thompson stated, that’s 31 days, count them.

Don Pauken asked, how many days in April?

President Thompson stated, I just counted them on my calendar, it’s 31 days, go ahead. Attorney Altman?

Attorney Altman stated, I have nothing of this witness. I think Dave Scott…

Director Weaver stated, Dave Scott still has a question.

Attorney Altman stated, Dave wanted to ask Mr. Dellinger a question I think.

President Thompson stated, that’s right, that’s right.

Dave Scott stated, I would like for you to repeat yourself as to why this has no merit. I’m…


Dow Dellinger stated, a couple of reasons, one is and I don’t have, I thought that I had a copy of the appeal itself, Director Weaver, you guys may have a copy of the appeal.

Attorney Altman stated, right here, this is the original…

Dow Dellinger stated, the word on the appeal is, I think objection is, simply Director Weaver’s, it says that Area Plan Directors determination in parenthesis interpretation of ref expressed at that Area Plan Commission meeting May 9, 2005. Grounds for the appeal under the Area Plan Director erred in her determination of the ref that contract or contact with the Director’s office is part of the need that fulfills the requirement of physical appearance by petitioner and consequently the petitioners petition can stand. It says that the a petitioner or authorized representative physically did not appear at either of the two consecutive meetings February or March of 2005 as manned by ref. Further no where in the White County Zoning Ordinance does it say or implied a contact of the Directors Office prior to the meeting shall be used in lieu of physically appearance therefore petition must dismissed as stated in ref. Their objection is her interpretation of it, not the fact that the action was taken and the action is taken by the Board not Director Weaver. So there is no real, the appeal is non-appealable with you guys and the other thing is that the action that they’re objecting to is the tabling. The tabling happened and it wasn’t in the April meeting, tabling happened in March and again I guess that they could object to the February too. I think that’s the first table that they took so there’s really no standing objection to the February, it’s the March objection that they have, they didn’t make the objection, then and they didn’t file their appeal within that frame or time within that 30 days. So there are two reasons that they can’t appeal it and the first one is blayton is that they are objecting to Director Weaver’s interpretation of the zoning ordinance which she has no control I mean Director Weaver has no control of the meeting what so ever. She doesn’t vote you know, the Board handles the decisions and simply put they should of objected at the meeting. If they wanted to and the proper procedure should have objected to the meeting. If the Area Plan would have had and then made the election at that time or make the vote at that time then they had 30 days from that date to object to the procedural issue and they didn’t do it.


Attorney Altman stated, thank you.

President Thompson asked, thank you, once again, Dave?

Dave Stimmel asked, vote.

President Thompson asked, ready to vote, is that agreeable?


Attorney Altman stated, okay, as far as voting, couple of things. The Board obviously needs to make findings of fact and they also need, I have submitted some time ago and I trust that everyone has brought back their, the ballot and if its such it was and actually it was for you to look at. Obviously since it’s submitted as findings of fact by the Rangeline and Indiana Waste you need basically to determine whether these facts are sufficient, are facts and are sufficient. I think that you’re ready to do that. Does everyone have the ballots and all that I’m talking about? Do we have any questions about it?

Carol Stradling stated, of course I do….

Attorney Altman stated, obviously change and add anything to there, I have no great pride of authorship and neither does Mr. Dellinger I’m sure.

Carol Stradling asked, finding I haven’t read Mr. Dellinger but as I read over, as I read over the ones that we have put together, 8A, did the action of Rangeline Properties Inc.’s agent requesting a continuance on or about February 14, 2005 conform sufficiently to the requirements of White County Zoning Ordinance 9.4002. Such that it’s rezoning #873 and #874 should not be dismissed. I’m confused by the wording in that Attorney Altman.


Attorney Altman stated, if you determine that the appeal you heard Mr. Dellinger say that because, it was not done within a certain amount of time and it wasn’t appealed within that amount of time. That question and issue becomes irrelevant and therefore it isn’t particularly in play. All that I was trying to say is did they, did Rangeline’s agent come close enough to what you thought the ordinance required such that their petition, their rezoning should not be dismissed and you vote yes or no.


Carol Stradling asked, if we change that to read should be tabled and then vote yes or no?

Attorney Altman stated, that, that, their rezoning…


Carol Stradling asked, is that…

Attorney Altman asked, that there rezoning should be tabled.

Carol Stradling stated, correct.

Attorney Altman stated, okay, that would be fine, should be tabled you would be satisfied with that.

Carol Stradling stated, that’s easier for me to understand.

Attorney Altman stated, okay.

Carol Stradling stated, that, that should not be dismissed…

Attorney Altman stated, should be tabled, okay…

Carol Stradling stated, is…

Attorney Altman stated, so that everybody is consistent on the ballot that’s what Carol suggesting if it is so then please mark out not be dismissed and add should be tabled.


Carol Stradling asked, is the rest of the Board okay with that and then that would also hold for 8B for the March 14th meeting…

Attorney Altman asked, should be tabled, not should be dismissed. Anything else Carol?

Carol Stradling stated, I did find a typo on 10A.

Attorney Altman asked, that is what?

Carol Stradling stated, should be White County Area Plan.

Attorney Altman asked, yes, not our plan, okay, anything else? Why don’t you proceed with the ballot.

With no further discussion the Board voted.

Dave Scott asked, what does mean…

Attorney Altman stated, that it just actually the only thing that it says is that their appeals…this board grant, request for the appeals board can grant it.


Dave Scott asked, just….


Attorney Altman stated, …it is not it’s just what you do with it in other words if you think that there is no relief this Board can grant then yes you would say no if you think that there is a relief to grant you would say yes. Just trying to rephrase what it says, but I would suggest that the Board members are done balloting. I think that it’s a useful purpose to, is to take the findings of fact that Mr. Dellinger submitted and what Carol has done is put beside each one a yes or a no as to whether you agree with that findings of fact or not. I think that would be something that would be productive in your balloting, as it is more detail in fact rich than the ballot that you just went upon.


Dave Scott stated, I don’t understand the question….


President Thompson asked, do you want us to go down through all of them, 16?


Attorney Altman asked, I think that I would go through every one of them obviously if a yes no doesn’t answer it then qualify your responses, I’m not trying to tell you how to vote. This is your answer right here?


Dave Stimmel stated, that’s correct.

Attorney Altman stated, okay, I want to make sure.

President Thompson asked, do you want us to initial this or anything?

Attorney Altman stated, I think I would write your name on it please. I think that’s the simplest way to do it is to write your name on it.

Dave Stimmel stated…destroy this one then Attorney Altman.

Attorney Altman stated, we’ll use that part and parcel of the whole thing, yes.

Dow Dellinger stated, if it please the Board, it might be just with time constraints so you guys aren’t in here all night long and trying to summarize it. I have seen other Area Plan Board of Zoning Appeal Boards they will announce at either the approval or denial of the appeal and then let attorneys summarize the basis of the appeal of the findings. Then you guys can do that at the next meeting and give Attorney Altman a break not trying to come up with all of the facts tonight to review all of those that would be kind of tough to do…

Attorney Altman stated, I don’t think I want to go into that I just did want, I will get the vote done and then summarize.


Dow Dellinger stated, and that’s’ what, I have seen other boards, that just said of the appeals tonight or not tonight and then the findings come out at the next meeting to be approved. That might be easier than trying to have them all tallied tonight the findings approves or disapproves at 10:00 tonight.

President Thompson asked, Gary, did you sign that anywhere?

Attorney Altman stated, you don’t have to vote on that I’m just saying is it’s not…

Dave Stimmel stated, so many of these Attorney Altman should be…

Dave Scott stated, I don’t know the answer to the question.

Attorney Altman stated, then just leave that way. I’m not telling you…

Dave Scott stated, sorry.


Attorney Altman stated, I’m not telling you to vote. I have okay let me check the ballots and do exactly what is appropriate because we do have other matters we have to hear tonight. I’m going to announce basic decision that is the results of the balloting on Appeal #4 and that would be number 14 the result of should the appeal of Don Pauken and Bill Pyle filed on May 11, 2005 be granted or dismissed. There are 5 votes that it should be dismissed and we will compile the rest of it and announce that at the next meeting so that at this time the appeal is dismissed.

President Thompson stated, okay.

Attorney Altman stated, by the vote of the bottom.

Dow Dellinger stated, thank you very much.

Attorney Altman stated, thank you also.

****

President Thompson asked, okay, other business tonight, we have an appeal of the fine by Bruce and Judith Kercheval are they in attendance?

Attorney Altman stated, yes they are.

President Thompson stated, okay, all right, okay, who wants to begin?

Attorney Altman stated, Director Weaver.

President Thompson stated, Director Weaver does, okay.

Director Weaver stated, I’ve given the Board a report that kind of summarizes the events that goes with this on March 15th of this year I noticed that there had been a sign put up at Mr. Kercheval’s office that did not have a permit. It appeared to me at that time, it was not meeting setback requirements. We therefore mailed a letter to Mr. Kercheval regarding this. He did come into my office on May 13th and discussed this matter with me on May 18th he filed the appeal, appealing the fine, on June 3rd I received a letter. I set this appeal up for last months meeting and then on June 3rd I received a letter from the Kercheval’s that they could not attend that meeting therefore I put it on the agenda for this meeting. As of this time, the sign is still erected, Mr. Kercheval did come in the office this afternoon and filed the variance to keep the sign where it is located. The survey that was presented at that time and I apologize I did not bring that with me but it does show that the sign is not meeting setback requirements.

Bruce Kercheval asked, can I present some evidence if you call it evidence?

President Thompson stated, yes, yes you may.

Bruce Kercheval stated, I will give each one of you this and you can read it.

President Thompson asked, has everyone had a chance to read that? Would you like to add more?

Bruce Kercheval stated, my customers told me by cell phone that when they drove by my office they could not find it. I’m right across the street because my office sits back I contacted Don Anderson, Liberty Sign Company regarding putting the sign up for us he told me that the Fire Department was the one that would tell me yes or no. I called the Fire Department and Dewitt Robinson, he does not do that, he referred us to Rennatta Berkshire. I talked to Rennatta and she said that as long as I put it on my side of the sidewalk, I was fine. I asked her if there was anything else that I needed to do and she said no as long as it was on my side of the sidewalk I should be okay. I didn’t know that I needed to do anything else.

President Thompson stated, okay.

Bruce Kercheval stated, I’m being as honest as I can be.

President Thompson stated, we appreciate that. Director Weaver, you have something go ahead.


Director Weaver stated, yes, I did omit when I, it is on your, your report that I did receive a phone call from the City of Monticello that does basically did go along with what this letter states. I do have to comment that and I can not give you a date, I do not have records of it but, a few years back Mr. Anderson I believe it was best I remember was going to put a sign up on Mr. Kercheval’s property. We met in Mr. Kercheval’s front yard and discussed the sign and discussed that it could not go at that time. I think that he was going to put it between the sidewalk and the street, discussed the fact that it could not be placed there. So I feel like Mr. Kercheval knew that Area Plan was involved and did have regulations enough to where he should have contacted the office prior to putting the sign up.

Bruce Kercheval stated, that was in January of 2000, at that time, I can’t remember the fellows name but the Assistant Fire Chief…

Director Weaver stated, Bob Braaksma…


Bruce Kercheval stated, had given me approval to put a sign in there because Glen Gilbert is the one that I had purchased the office from Glen Gilbert had a sign and in between the sidewalk and the street. When they left they just broke the posts off so I had contacted Bob Braaksma and he said as long as you can see that there are posts there he felt like I could put an existing sign back there. In January of 2000 Don Anderson came up to put the sign where Bob Braaksma told me I could have put one. While he was doing that Director Weaver came over and stopped us, that was January 2000 and said I could not put one between the sidewalk and the street. Don took the sign back home and stored it because, I was still wanting to find a way to put it between the sidewalk and the street. If you know where my office is and know where the church is, the church built to the sidewalk. So anybody that pulls up to this corner down here still can not see my sign because, it is blocked by the church. That’s why it’s important for me to get it between the sidewalk and the street but, 5 years later Don said that he wanted to get the sign out of his barn and I didn’t think anything about what happened 5 years ago. The only thing that I remember 5 years ago was no you can’t put it between the sidewalk and the street and then when Don told me to call the Fire Department and I did those procedures. I guess if I had really thought about it I might have done something else but I did what I thought that I needed to do. The reason the sign is still up is once Rennatta said to put the sign in Don put 8 pounds of concrete on each post. The sign is a plastic plotted sign to take it out I would probably destroy the sign so I’m not trying to deem it a temporary thing but just asking to give me time to get a variance and let me keep the sign.

Dave Scott asked, what is the setback for an on premise sign?

Director Weaver stated, 10’ from the leading edge to the road right-of-way or property line.

Attorney Altman asked, where’s the property line there?

Bruce Kercheval stated, the survey showed it being right up beside the walkway.

Attorney Altman stated, the side of the sidewalk.

Bruce Kercheval stated, might be my side of the sidewalk, where the flag is presently is still set back farther than the church built up to the sidewalk. I don’t know if that has any bearing but when Don put the sign is he did set it back farther on my property than what the church was allowed to build to the sidewalk.

Carol Stradling asked, do you know why you contacted the Fire Department 5 years ago?

Bruce Kercheval stated, the same thing that Director Weaver said.

Carol Stradling stated, Bob Braaksma was the Building Inspector at the time for the City, so it’s not a Fire Department role to approve or disapprove signs it’s because Bob Braaksma was the City Building Inspector. I’m struggling with you remembering that someone said no but you didn’t remember the agency that said no.

Bruce Kercheval stated, I knew, I remembered…said no but what I remembered was no between the sidewalk and the street.

Carol Stradling asked, but you didn’t contact that agency? Just recently you remembered who said no but you didn’t contact them.

Bruce Kercheval stated, I didn’t think that I needed to contact them because I thought that the city had the right to tell me I could put it on my property and I’m not, I don’t know anything about zoning I’m a CPA.

Carol Stradling stated, it really had nothing to do with zoning to me right now it has to do with in 2000 you had a conversation with a government official that said no you can’t put that sign there no matter where it was. Not thinking, then you would contact them to see if you can put it somewhere else instead of going to the Fire Department again and going to the City like the last time. I mean that’s where you went the last time you went to the Fire Department and you went to the City and then it was Director Weaver that told you no. So instead of going to Director Weaver again you went the same route, the Fire Department and the city who originally told you yes in 2000…

Bruce Kercheval stated, right.

Carol Stradling stated, then they told you yes again, I guess I’m wondering why you would trust their decision when in 2000 their decision was wrong.

Bruce Kercheval stated, I trusted what Don Anderson from Liberty Signs told me to do to get the sign put in.

Carol Stradling stated, twice.

Bruce Kercheval stated, he told me that twice.

Carol Stradling stated, and he was wrong twice.

Bruce Kercheval stated, I trusted what he said and I talked to Rennatta Berkshire I trusted what she told me.

Carol Stradling stated, the letter that I’m seeing it says this office, her office handles temporary signs and you put in a permanent sign.

Bruce Kercheval stated, I think she says that the Monticello Fire Chief they handle different signs…

Carol Stradling stated, no, what she’s saying is that the Clerk Treasurer Office handles temporary signs which is maybe why the fire chief referred you to her I’m also kind of, never mind. Your statement that you would find a way to use that sign and Don Anderson stored it and you would find a way to use that sign…

Bruce Kercheval stated, I never said that statement.

Carol Stradling stated, I do believe you did and it’s on tape.

Bruce Kercheval stated, I didn’t say that I would find a way to use it.

Carol Stradling stated, okay.

Bruce Kercheval stated, I mean if I did I’m sorry I did but I don’t remember saying that. I swear…came back to me and said we need to get it put up.

Carol Stradling asked, and you received the letter it was mailed 5-24 so you received the letter.

Director Weaver stated, we mailed the letter to him on March 18th.

Carol Stradling asked, and today is, when did you file for your variance?

Bruce Kercheval stated, I filed it today.

Carol Stradling stated, today, okay, you’ve been, you haven’t been able to come over and apply for that variance until today?

Bruce Kercheval stated, I contacted Jim Milligan… busy Jim Milligan called me this morning and said I have it ready for you I went over to get it picked it up and I was in Director Weaver’s office at 11:00.

Carol Stradling stated, okay, so the survey was the hold up there.

Bruce Kercheval stated, yes, yes.

Carol Stradling stated, all right.

Director Weaver asked, when did you contact Jim because we have had several variances filed since this all transpired.

Bruce Kercheval stated, it’s probably been 5 or 6 weeks ago. He just called me at 9:30 this morning and I went right to his office and picked it up and I got the other documents that I brought you this morning.

Director Weaver stated, I agree with him.

Dave Scott asked, he just filed for a variance for next meeting?

Director Weaver stated, yes, for the August meeting.

Dave Scott stated, for the August meeting.

Attorney Altman stated, may I make the following suggestion? Since we have the variance applied for and our custom, that we handle and look at a variance before we handle and look at the fine that it might be judicious for us to postpone action on this fine until we see the variance application. Set them both for the same time just like we did with the one we handled to day the variance and then handle, look at the fine. Then we would have more evidence we would have a survey we would have that kind of information.

Carol Stradling stated, I can see why we had to look at this tonight, I can see why it’s on here because we didn’t have a variance to look at…

Attorney Altman stated, yes, no question…

Carol Stradling stated, and we had the variance applied for we have something else to look at.

President Thompson stated, and it would fall on the…

Director Weaver stated, the 18th…

President Thompson stated, 18th of the August meeting.

Dave Stimmel stated, I would rather handle it now personally, get it out of the way to me there is enough information there to make it…that’s just my opinion.

Attorney Altman stated, make a motion, make a motion lets go either way I don’t care…

Dave Scott stated, I make a motion that we waive the fine. It looks like an honest mistake it’s not that serious, like the building of a house or something. I don’t know there is some law office that has their right out there next to the road.

Director Weaver stated, that sign is grandfathered.

Dave Stimmel asked, is it?

Director Weaver stated, yes.

Dave Stimmel asked, if a pickup was to back over that sign and break it off…

Director Weaver stated, they would be in the same situation.

Dave Stimmel stated, okay, just curious.

Director Weaver stated, they have repainted that sign so it does have the current occupant’s name on it but the poles itself is grandfathered, to the best of my knowledge.

Bruce Kercheval asked, once the business goes out of business is there a time limit before the new business has to come in to receive that grandfathering on the old signs?

Director Weaver stated, the way, I don’t believe that’s directly addressed in the ordinance or if it is I’m not familiar with it off of the top of my head. The way that I have handled this situation if the signs is there and in good repair and a new business comes in and repaints it then I let them go with that sign as long as they do not replace the poles or structurally.

Bruce Kercheval stated, because there was a lime up last, that old business closed and the new business opened.

Attorney Altman stated, we’re out of order, we have a motion.

President Thompson stated, yes, that’s what I was going to get back to.

Gary Barbour stated, I’ll second the motion….

Attorney Altman stated, okay discussion.

President Thompson asked, repeat the motion again though Dave, we got away from it.

Dave Scott stated, I’ll make a motion that we waive the fine.

President Thompson stated, okay, there has been a second Dave, discussion?

Gary Barbour stated, I’m not really enthused about doing away with the fine, there is some history to it and I’m sorry the questions are better asked.

Carol Stradling stated, I think that I have proved my comments already.

President Thompson stated, okay, so we have a motion and second. Call for the vote or withdraw the motion. All in favor.

Dave Scott stated, I.

Dave Stimmel stated, I.

President Thompson asked, all opposed.

Gary Barbour stated, I.

President Thompson stated, I.

Carol Stradling stated, I.

Attorney Altman stated, motions to be there and now we’re right back where we were.

President Thompson asked, another motion? Or more discussion?

Dave Stimmel asked, what do you propose Gary?

Gary Barbour stated, I guess that I would at least like to see a hundred dollar fine on that deal, I mean it’s not like he had to go real far to get an answer here.

President Thompson asked, is that a motion or is that a discussion?

Gary Barbour stated, that’s discussion.

Dave Scott stated, I just, according to him he’s made an attempt and some people did give him the authority to do it I guess that’s where I was coming from I mean the Town Clerk Treasurer said yes you can do it.

Gary Barbour stated, it says here though office now handles temporary sign permits, that’s not a temporary sign so if he got a permit it had to say temporary on it.

Dave Scott asked, well, you have to define temporary, is temporary 20 years or…

Gary Barbour stated, no…

Dave Scott stated, I’m kidding.

President Thompson asked, Carol?

Carol Stradling stated, I move that we table it and discuss it when we have the survey for this.

President Thompson asked, second to that motion?

Gary Barbour stated, I’ll second it.

President Thompson stated, move and second, all in favor say I.

Carol Stradling stated, I.

Gary Barbour stated, I.

President Thompson stated, all opposed.

Dave Scott stated, I.

Dave Stimmel stated, I.

President Thompson stated, I.

Attorney Altman stated, another motion.

Dave Stimmel stated, okay.

Carol Stradling stated, now we have, wait a minute.

Attorney Altman stated, three were nays.

Carol Stradling stated, okay, I didn’t hear your voice President Thompson.

Attorney Altman stated, yes, three nays.

Carol Stradling stated, okay.

Attorney Altman stated, another motion, I’m just being the referee.

Carol Stradling stated, okay, so we’re addressing the fine.

Director Weaver stated, could I pin point out something, this is where my problem comes in. The letter was mailed out to Mr. Kercheval March 18th or Mrs. Kercheval actually March 18th. The letter imposes the 500 dollar fine tells them that payment needs to be received by May 19th or there will be an additional 50 dollar per month late fee or if they wish to contest the fine they must appear before the Board of Zoning Appeals before May 19, 2005. The first time that Mr. Kercheval came into my office to discuss this matter was on May 13th. That’s where I have the problem. There was no attempt made to get this taken care of in a timely manner.

Dave Scott asked, you sent the letter out March 18th?

Director Weaver stated, March 18th.

Dave Scott stated, March 18th.

Director Weaver stated, so almost 2 months elapsed before he came into my office.

Dave Stimmel asked, can you help us explain a way that time lapse Mr. Kercheval?

Bruce Kercheval stated, the deadline April 15th everyone personal income tax return is finished, I didn’t really look at it until after April 15th because of that deadline. Once I got past April 15th I went back and looked at it and then I went over and talked to Director Weaver. I wasn’t trying to avoid anything I’m not trying to avoid anything now.

President Thompson asked, Carol? Anyone?

Dave Stimmel stated, I move that we assess the fine at 150 dollars.

Gary Barbour stated, second.

President Thompson stated, it’s been moved and seconded for fine of 150 dollars, is there any discussion.

Dave Scott asked, do we allow him to leave the sign until we get the vote on the variance?

President Thompson stated, yes, is that agreeable? It’s been moved and seconded for a fine of 150 dollars, all in favor signify by saying I.

The Board stated I.

President Thompson stated, all opposed, okay.

Bruce Kercheval stated, how about some time after Tuesday when I pick up the permit for that?

Attorney Altman stated, that would be fine that would be fine.

Bruce Kercheval stated, thank you.

President Thompson stated, thank you

Attorney Altman stated, you’re welcome, thank you.

****

President Thompson stated, okay, we have…

Carol Stradling asked, one more?

President Thompson stated, just a second, I lost my notes, okay we have another appeal of a fine, Leonard and Nancy Margraff. Will you come forward please.

Nancy Margraff stated, can I read a short statement.

President Thompson stated, okay, can I let Director Weaver go first here and then you go is that alright, okay.

Director Weaver stated, okay, this one on May 13th we received a complaint that they had built a shed that was located on a gravel road and also on a NIPSCO easement. Cindy took that complaint when it came into the office, she referred it to Dave Anderson the Building Inspector, he went out to the property and saw that the shed was located where we were told it was, he did not take any pictures at that time. He came in the next day and told me what he had found and therefore I proceeded and mailed a letter out to Margraff’s, went to the, went out the following day after the letter was actually mailed, I took the pictures of it. Mr. Margraff called me, the letter was mailed May 31st….

Nancy Margraff stated, no, Mrs. Margraff.

Nancy Margraff stated, no, Mrs. Margraff…

Director Weaver stated, okay, I put, I was thinking it was you. Mrs. Margraff called me on June 3rd and discussed the matter with me and I believe if memory serves me right, I believe it was the following weekend after we talked that you got the shed moved.

Nancy Margraff stated, yes…

Director Weaver stated, and relocated…

Nancy Margraff stated, I called you Friday morning, I received the letter on Thursday I called you on Friday morning we left Friday night and came to Monticello and…

Director Weaver stated, I received a call on June 8th that they had, because I had asked her to notify me when the shed was moved. I received a call on June 8th that the shed had been moved and then I went back out and verified that the shed had been moved.

Nancy Margraff stated, one thing that I want to correct off of the bat is it was never on a gravel road.

President Thompson asked, can I have your name again please for the record.

Nancy Margraff stated, I read my statement okay, I don’t want to make you stay any longer than it has to be. My name is Nancy Margraff and along with my husband Leonard we own the property located at 3728 N. Lake Road 68 Liberty Township…our primary residence…purchased this property in 1997. We made major improvements we obtained the necessary permit and the necessary inspections for our projects…1999 included a porch and the shed in question. I have the permits here the second permit was obtained in July 2002 to build and addition and a deck it was a two-stage project to be completed mid 2003. With the second construction the shed had to be relocated since the new room addition was to be built on the same spot that the shed was originally put on. The shed was not permanently affixed to the ground and never was and still isn’t and…plan for it’s a vinyl shed and it’s easy to take apart and put together it’s kind of like a toy, big toy. We purchased that kind of a shed because we anticipated possibly moving it in the future. Our plan was to simply back up the shed about 15’ from where it was originally located within the required setbacks but our contractor informed us that due to the limited accessing through the yard and he advised us that …foundation, crawl space we had to leave the designated shed area….to the…required…subcontractor to put in the foundation. The shed was then moved onto the construction area instead on the side of our property which was on our property not on the gravel road, the shed was never put on the gravel road or anything but our own property and all of the construction was fine…looking at the yard…and in fall of 2003 we began level planting grass so we could get our back yard….that’s sort of deceiving notices…the diagrams and they…back yard so it’s not…grinder pump….we decided to leave all of that….grinder stuff…the shed was suppose to be where our septic was and near where the grinder pump already staked to be. We received the notices from the Commission, the following morning I spoke to Director Weaver explaining our concern about the notices. We’re law-abiding citizens and we would see that the shed was moved immediately. I explained the circumstances made sure that it was taken care of at once. She asked that I call her back after the shed was moved, we came to Monticello that night by Saturday afternoon the shed was relocated Monday morning. I called Director Weaver back as she requested and told her that the shed was now located…at the time I…desired to file and appeal. We’re appealing the fine because we feel that the fine is excessive and that property owners should be given a reasonable chance to make corrections before such a hefty fine is assessed. It was a non-mulish intent on our part, we made every effort to follow proper procedures of ordinances in the county we acted immediately in correcting our error. We ask that the Commission take things into consideration and decide in our favor on the outcome of our appeal. I would like to submit pictures of where the shed was originally and where it is now and why we didn’t put the shed, why we couldn’t put it there I don’t know if anyone wants to see any...

Director Weaver stated, they do have copies of my pictures that I took .

Nancy Margraff stated, well, I have pictures of…

Director Weaver stated, that’s fine.

Nancy Margraff stated, you don’t have pictures of where the shed was originally…

Director Weaver stated, no I don’t.

President Thompson asked, now, if you present them we keep those.

Nancy Margraff stated, I don’t care.

President Thompson asked, are you sure?

Nancy Margraff stated, yes.

President Thompson stated, all right.

Nancy Margraff stated,…of my whole shed…

Attorney Altman asked, how many pictures do you have ma’am.

Nancy Margraff stated, there’s 3, well…

Attorney Altman stated, okay.

Nancy Margraff stated, there’s, 3 I really didn’t explain what this one was but I did explain about these.

President Thompson stated, give them to Attorney Altman.

Attorney Altman stated, let me have them and I will mark them.

Nancy Margraff stated, this is where the shed is now and this is the addition that was built and this is….construction of this area…trees…where the shed was.

Attorney Altman stated, for the record, I’ve marked Exhibit A which is the whole sheet which has 2 photographs, Exhibit B is the, excuse me, that she was just testifying now, apparently is the alley.

Nancy Margraff stated, that’s in the after, that’s just…it just kind of shows in relationship to the addition and everything where the shed is suppose to be…construction…

President Thompson asked, Gary?

Nancy Margraff stated, that’s all that I have to say…quicker I thank you for explaining to me through this whole procedure because this is horrible.

President Thompson asked, any questions for Mrs. Margraff? Comments?

Director Weaver stated, I would just like to make one comment so you are aware, there is a platted road…

Nancy Margraff stated, I know there is a platted road, the shed is not on the platted road, I stayed right behind where it is, I know where the platted road is.

Director Weaver stated, I just wanted to make sure you knew that road was there….

Nancy Margraff stated, the reason that people…

Director Weaver stated, even though it’s not actually there I wanted you to realize that…

Nancy Margraff stated, for 50 years and it’s got holes in the middle of it and all kinds of stuff. We were never on the platted road.

Director Weaver stated, the reason that it appeared that way is because there was a dead end sign…

Nancy Margraff stated, because someone moved that dead end sign there, people behind me.

Director Weaver stated, I just wasn’t sure…

Nancy Margraff stated, but that dead end sign…

Director Weaver stated, I just wasn’t sure you understood that that was there.

Nancy Margraff stated, yes, but we were never on that platted road, it never was platted on that road.

President Thompson asked, okay, what are the Boards wishes here? Discussion, it’s getting later.

Carol Stradling asked, when was your construction Mrs. Margraff?

Nancy Margraff asked, the most recent one, the one with the shed?

Carol Stradling stated, when you moved the shed.

Nancy Margraff stated, when we moved the shed originally, 2004, well we got the permit 2002, I had it down there…

Director Weaver stated, yes.

Nancy Margraff stated, I got the permit 2002 the construction began in 2002 and ended in 2003 because it was a 2 phase and we didn’t get it all at once we just had the addition built and then we had the deck built the following spring.

Carol Stradling stated, okay.

President Thompson stated, okay…

Dave Stimmel stated, I move that we impose a 50-dollar fine.

President Thompson asked, second to that?

Gary Barbour stated, I’ll second it.

President Thompson stated, it’s been moved and seconded to a 50 dollar fine in lieu of the 500 dollar fine. All in favor.

Dave Stimmel stated, I.

President Thompson stated, I.

Carol Stradling stated, I.

Gary Barbour stated, I.

President Thompson stated, all opposed.

Dave Scott stated, I.

Attorney Altman asked, payable with?

Nancy Margraff asked, 50 dollars?

Attorney Altman stated, yes.

Nancy Margraff asked, can I give it to you now?

Attorney Altman stated, no, we don’t have the receipt book.

Director Weaver stated, you can stick it in the mail, you can mail it to me.

Nancy Margraff stated, okay.

Director Weaver stated, okay?

Nancy Margraff stated, all right.

Attorney Altman stated, okay, lets go…

President Thompson stated, we have been going.

Attorney Altman stated, we’ve got one more on there.

Carol Stradling stated, I don’t see anymore on there.

Attorney Altman stated, yes there is.

Director Weaver stated, yes there is.

Attorney Altman stated, but I’ll tell you what I done is we have prepared the paperwork to make that judgement of record so we go to Howard County period, which you’re right Carol, I’m not talking anymore.

Director Weaver stated, and I might just add that, that is just on the Fortune violation. Attorney Altman didn’t bother to tell you that.

President Thompson stated, that is yes.

Attorney Altman asked, you say that motion to adjourn?

President Thompson stated, no, but not yet, incase I don’t call, I will be here Tuesday.

Director Weaver stated, okay.

President Thompson asked, I can tell you that much. Isn’t it Tuesday night when the next meeting?

Director Weaver stated, yes.

President Thompson stated, that’s what I thought yes.

Gary Barbour stated, I’ll be there.

Carol Stradling stated, I’ll be here.

Director Weaver stated, okay.

Dave Scott asked, what’s the date?

Director Weaver stated, second.

President Thompson stated, the second, Tuesday that’s our next one.

Carol Stradling stated, you’re going to be here Dave.

Dave Scott stated, I have a board meeting that night.

President Thompson asked, after this one.

Dave Scott stated, during this one.

President Thompson asked, moved to adjourn?

Gary Barbour made motion to adjourn.

President Thompson stated, been moved, meeting adjourned.

The meeting adjourned.

Respectfully submitted,

Gary Barbour, Secretary

Diann Weaver, Director

White County Area Plan Commission