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BZA MEETING MINUTES THURSDAY MARCH 15, 2012

The White County Area Board of Zoning Appeals met on Thursday, March 15, 2012 at 7:00 p.m. in the Commissioners’ Meeting Room, Second Floor, White County Building, Monticello, Indiana.

Members attending were: Carl Hites, Dave Rosenbarger, Dennis Sterrett, Richard Holmes. Absent: Dave Hall. Also attending were Attorney Ben Diener, Director Joseph Rogers and Secretary Gayle Rogers

Visitors attending were: Jerry Altman, Mike Lewellen, Tom Montgomery, Nan Albright

The meeting was called to order by Chairman Shaker Hites. First order of business was the meeting minutes of January 19, 2012. Dave Rosenbarger motioned to accept the minutes as written. Richard Holmes seconded. The motion passed with a 4-0 vote.

Chairman Hites informed all present that there was not a full board present, allowing applicants to request a continuance until the next scheduled meeting, in this case April 19, 2012. He also mentioned that an applicant may request such a continuance up to two times. If the board causes the continuance, such as by a tie vote, this does not count as one of the applicant’s requests. After the applicant has requested two voluntary continuances, the petition must be heard (unless the board causes the continuance) or it will be dismissed. The applicants for both petitions chose to be heard at this meeting.

#2859 Michael A & Marcia K Lewellen; A tract of land out of the North of the Southwest Fraction lying West of the Tippecanoe River in Section Twenty-one (21), Township Twenty-seven (27) North, Range Three (3) West in Union Township, White County, Indiana; more commonly known as 1721 Francis St, Monticello

Violation: None

Request: The applicant requests a 15’ front setback; a 21’ rear setback; and a 7’ side setback to construct an attached garage. The required setback in the A-1 (General Agriculture) zoning district is 30’ front; 30’ rear and 10’ sides.

Director Rogers explained to the Board that the applicant originally applied for a front, rear and side setback to be heard at the October 2011 meeting. Due to a notification error the applicant was continued to the November 2011 meeting. At the November meeting the front and rear setback requests each received a tie vote so were continued to the January 2012 meeting. The side setback was denied at the November meeting. The applicant requested a continuance from the January meeting to the March meeting in order to pursue a rezone of the property.

At the January 9, 2012 APC meeting the applicant received a positive recommendation to have his property rezoned from A-1 to L-1. The request was passed by the City of Monticello on January 16, 2012.

The applicant then submitted an amended variance request due to the rezoning. That rezone eliminates the need for a rear setback variance as the zoning changed the setback from 30’ to 20’ and the applicant meets the 20’ setback.

Director Rogers informed the board that it is his opinion that the board can not re-hear the side setback request because it was denied by an official action of the BZA in November.

At that point, the applicant had three options. He could have appealed the Director’s decision (12.3.15) within 30 days (which has passed) or he could submit a successive application (12.3.1) and the Director will determine if the new grounds are such that the application should be accepted ( 12.3.3) or he could revise his site plan to be in compliance.

After the side setback was denied, the applicant added sill plates to the foundation. He and his attorney were notified by Mr. Rogers that he considered this activity a civil zoning violation and a warning citation was issued. The violation was remedied by removal of the sill plates.

Since the side foundation location was denied by the BZA, Mr. Rogers asked the board to take into consideration what remedy would satisfy them to bring the property into compliance. The Board elected to delay determination of a remedy until an official action of the front setback request was made.

Chairman Hites asked what the setbacks are for “attached” versus “detached”. Mr. Rogers replied that the front and rear are the same no matter which (30’ front, 20’ rear) but the side changes – the side setback if the garage is attached is 11’, detached is 6’. Chairman Hites asked Director Rogers why the difference. Director Rogers said this has always been a puzzle to him and no one has ever been able to answer this question, but that this type of developmental standard differential has existed with every ordinance adopted by the legislative bodies. Mr. Rogers went on to say that the proposal currently is for an attached garage and that the front is the lake.

Attorney Altman stepped to the podium to answer any questions the board might have. He stated that the prior use of this structure has been as a driveway. It might someday be a garage, but has been a driveway to this date. The applicant put 2 x 6’s on top of the block to protect it and removed them when requested. This is a proposed garage. There was a building there before that the owner removed for this improvement. This is an unusual lot with no flexibility – the river is one side, the street on the other. The house was built in 1958 and with the inflexibility of the lot makes the site geographically limited. Mr. Altman went on to ask the board to reconsider the side setback request in order to expedite this matter. Mike Lewellen, property owner and applicant was available to answer questions. He said the proposed garage will sit 1 ½’ – 2’ back further from the water than the kitchen. He stated that when he had his seawall put in he had the block work done for the driveway. Chairman Hites asked if the block work is higher than the concrete. Mr. Lewellen answered no. Dr. Hites asked again. Mr. Lewellen gave the same negative answer. Mr. Rogers projected a photo on the wall he had taken of the development for the Board to view. This photo showed the driveway and block work at the site. Mr. Rosenbarger asked if the driveway puddles. Mr. Lewellen said no. Mr. Rosenbarger asked if there was a drain. Mr. Lewellen said yes there is a drain on the street side of the concrete that drains to the side of the block work and into the river. Mr. Rosenbarger repeated the question as to whether the block work is higher than the concrete to which Mr. Lewellen replied, yes. Photos (Exhibit A) were produced showing the drain.

Mr. Rogers again spoke to say there is no provision in the Ordinance for an expedited process to reconsider an official action of the BZA (in this case, the side setback action). The ordinance is clear as to the steps which are available to an applicant upon a denial of a request by the Board. Mr. Rogers also advised the Board that the applicant was notified via his attorney that Mr. Rogers had determined that the block walls were designed as, installed as, and intended for use as, a foundation. The block walls of the driveway have anchor bolts in them to attach walls. The level of the blocks and the bolts prevent the wall portions from being used as a “driveway”. Mr. Rogers then submitted photos (Exhibit B) to the board that were presented to Building Commissioner Dave Anderson by the applicant (Mr. Lewellen) to prove he has three foot deep footers under the cement block walls proving the structure to be a permanent foundation. This office holds that the structure is a foundation, not just a driveway and, therefore, is in violation of the side setback. Dave Rosenbarger moved to vote on the petition; Richard Holmes seconded the motion. Result: 4 votes cast; 2 grant; 2 deny Petition is continued to the April 19, 2012 hearing.

Findings of Fact

1. The variance requested does not essentially alter the character of the surrounding area. 3-1; Other homes have garages; Too close to front

2. The granting of this variance will not be injurious to the public health, safety, morals and general welfare of the community. 4-0; In line with current house

3. The use and value of the area adjacent to the property included in the variance request will not be affected in a substantially adverse manner. 3-1; Granting front could allow 6’ side setback

4. The granting of the variance is necessary for the preservation and enjoyment of a substantial property right possessed by other property owners in the same vicinity and district but which is denied to the property in question. 2-2; Nearby property is undeveloped or more than 50’ away

5. The strict application of the terms of the zoning ordinance will result in practical difficulties in the use of the property, provided that the situation is not self-imposed or that the need for the development standard variance is not based on a perceived reduction of, or restriction on, economic gain. 3-1; Owner stated he wanted to use area as driveway and can do so without variance

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

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#2865 Basic American Convalescent Centres IX, LLC; A tract of land located in the Southeast Quarter of the Northwest Quarter of Section 28, Township 27 North, Range 3 West in the City of Monticello, White County, Indiana, consisting of .97 acres, .11 acres, .882 acres and .43 acres; more commonly described as 1120 N. Main St.

Violation: None

Request: The applicant requests a 10’ front setback from Sycamore for a walk-in cooler and freezer. The required setback is 30’.

Director Rogers described the variance request to the board. He also stated that the structure is legally nonconforming. It has been a nursing home since inception. The majority of the site is utilized for brick and mortar with some courtyard and parking space. Architect Tom Montgomery stepped forward to answer questions and explained to the board where the construction will be located. Nan Albright, Director of Monticello Assisted Living and Healthcare, answered a question from Dave Rosenbarger regarding why the new construction is not as far north as possible, up against the building. She stated there is a resident’s room there and the windows must remain for egress in the case of an emergency. Chairman Hites asked where the majority of employees and visitors park, to which she answered, across Sycamore Street in the parking lot owned by someone else. He then asked if there is a contract or simply an agreement to park in that lot, to which Ms. Albright responded it is simply where they have always parked and there is no contract. Chairman Hites then inquired as to where parking will be if that agreement ceases and Ms. Albright said it would be in the northwest lot that is seldom used currently. Dave Rosenbarger moved to vote on the petition with a second by Denny Sterrett. Result: 4 votes cast; 4 grant

Findings of Fact

1. The variance requested does not essentially alter the character of the surrounding area. 4-0; it will be located within the extents of existing building; Removes dumpster site

2. The granting of this variance will not be injurious to the public health, safety, morals and general welfare of the community. 4-0

3. The use and value of the area adjacent to the property included in the variance request will not be affected in a substantially adverse manner. 4-0

4. The granting of the variance is necessary for the preservation and enjoyment of a substantial property right possessed by other property owners in the same vicinity and district but which is denied to the property in question. 4-0

5. The strict application of the terms of the zoning ordinance will result in practical difficulties in the use of the property, provided that the situation is not self-imposed or that the need for the development standard variance is not based on a perceived reduction of, or restriction on, economic gain. 4-0

6. The granting of a variance would be a minimal departure from the strict application of the provisions of the zoning ordinance. In other words, the variance will be the minimum necessary to permit a reasonable use of the land and building. 4-0

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Business

A general discussion pursued, initially by Mr. Rogers, who provided an overview of his interpretation of IC 36-7-4-920 as it applies to BZA members. This was followed by input from Attorney Diener concerning the direction the Executive Director and he are taking on procedural issues of the Board.

Secretary Rogers asked what the board thought of the packets being emailed. All board members agreed that they preferred that method.

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As there was no further business, it was moved and seconded to adjourn the meeting at 8:40 pm. So moved.

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Respectfully submitted,

________________________________________

Gayle E. Rogers, Secretary

Area Board of Zoning Appeals

________________________________________

Joseph W. Rogers, Director

White County Area Plan Commission

 

Document Prepared By: Gayle E. Rogers, WCAP “I AFFIRM, UNDER THE PENALTIES FOR PERJURY, THAT I HAVE TAKEN REASONABLE CARE TO REDACT EACH SOCIAL SECURITY NUMBER IN THIS DOCUMENT, UNLESS REQUIRED BY LAW.”____________________________