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BZA MEETING MINUTES THURSDAY APRIL 19, 2012

The White County Area Board of Zoning Appeals met on Thursday, April 19, 2012 at 7:00 p.m. in the Commissioners’ Meeting Room, Second Floor, White County Building, Monticello, Indiana.

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

Visitors attending were: Jerry Altman, Mike Lewellen

The meeting was called to order by Chairman Shaker Hites. First order of business was the meeting minutes of March 15, 2012. Dave Hall motioned to accept the minutes as written. Richard Holmes seconded. The motion passed with a 4-0 vote. Chairman Hites announced that next on the agenda was Variance #2859.

#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 to build an attached garage. The required setback in the L-1 (Lake District) zoning district is 30’ front.

Director Rogers reviewed the petition for the Board: the original request was for three setback variances, front, side and rear. The property was zoned A-1 so had a 30’ front, 30’ rear and 10’ side setback requirement. The side setback variance was denied at a previous hearing; no determination was made on the front or rear setbacks. Since that hearing, the applicant was granted a rezone to L-1, Lake District, changing the setbacks to 30’ front, 20’ rear and sides a minimum of 9’ with a sum of 20’ for the two sides. This brings the rear setback of the proposed structure into compliance. It changes the side setback from 10’ to 11’ because the north side of the structure is 9’ from the line; however, the side was already denied so what faces the board tonight is the front setback. The applicant requests to build his garage 15’ from the waterside property line (30’ required). Mr. Rogers went on to explain that since the March 15, 2012 meeting, Mr. Altman submitted a commitment of which Mr. Rogers has provided the board a copy. Mr. Altman intended to meet with Mr. Rogers to discuss the commitment, however, Mr. Altman has been out of town and that meeting was not possible. Mr. Rogers and Attorney Diener do not recommend accepting the commitments as written.

Attorney Altman approached the podium and stated that he believes Mr. Rosenbarger’s vote from the previous meeting, being a positive vote, should count at this meeting since Mr. Rosenbarger is not in attendance tonight. The purpose of the commitment was to reassure the board that the construction would not go closer than 11’ from the property line. Before the start of the meeting Mr. Rogers mentioned to Mr. Altman that the stipulation of 11’ could unduly restrict the applicant if the ordinance should change in the future. Mr. Altman would like to amend the commitment to allow for changes in the ordinance. Mr. Rogers asked Mr. Altman if he was under the impression that a board member could not change his vote from meeting to meeting upon a continuation of a petition. Mr. Altman said yes, a member may change his vote if evidence dictates. Mr. Rogers contended that we don’t know what Mr. Rosenbarger’s vote would be tonight. Attorney Diener stated that no official action was taken at the last meeting so the vote can not count again tonight. Mr. Altman went on to say the lot is locked by Mother Nature on the front with the river, and by man in the case of a road on the rear. Chapter 12.4 of the ordinance requires burden of proof of a practical difficulty – the setbacks only leave 16’ of building area east to west (front to rear). Section 12.4.7 C states the practical difficulty must not be self-imposed or for economic gain. The petitioners’ situation complies with this section. The current use is as parking space and driveway; the raised blocks are as wheel stops. Mr. Rogers asked the purpose of the bolts to which Mr. Altman responded to hold boards for a bumper and because the applicant hoped for a garage. Mr. Rogers asked if Mr. Altman believed a variance should automatically be granted if the applicant demonstrated a practical difficulty. Mr. Altman answered, yes. Mr. Rogers pointed out that per state statute, other criteria must be addressed. Mr. Altman said the photos proved the other criteria – that granted the variance does not hurt the general public welfare nor does it adversely affect the use and value of the area; Mr. Lewellen does not possess the same enjoyment as neighboring properties in the same vicinity and district because they have garages.

Mr. Rogers recommended the board reject the commitment because in his opinion it is unnecessary as the applicant can not build closer than 11’ to the side property line. Mr. Diener concurred by stating the commitments held no purpose, they are not served by the zoning ordinance.

Chairman Hites asked if the front setback is denied, could the petitioner then apply for a variance for an unattached garage? Mr. Rogers answered, that would be a successive application and up to the discretion of the Director as to whether the board should hear it.

Mr. Lewellen spoke to say the garage will be 2 ½’ shorter than the back of the kitchen. He doesn’t understand because the garage is smaller than the house and not as close to the property line. Mr. Sterrett pointed out that the south end of the property is closer to the water than the north end (where the kitchen is) because of the configuration of the lot. Mr. Lewellen said he could understand if someone had property behind him but no one does, it’s just a river.

Richard Holmes motioned to vote on the front setback. Denny Sterrett seconded the motion. Result: 4 votes cast; 2 grant; 2 deny Petition is continued to the May 17, 2012 hearing.

Findings of Fact

1. The variance requested does not essentially alter the character of the surrounding area. 3-1; If front setback granted it would be closer than any grandfathered part of house; Other homes have garages, they also may have more room and larger lots; the character of the area was established long ago but the current ordinance appears to be attempting to limit this character and promote a more current appearance through larger setbacks.

2. The granting of this variance will not be injurious to the public health, safety, morals and general welfare of the community. 4-0; Same as other houses east of them.

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; 6’ side setback previously denied by BZA if front allowed could allow 6’ side; Would fall under right setbacks; The surrounding area, though undeveloped, would not likely be adversely affected.

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 but lots too small to permit garages of any kind are common on the lakes; No one on back and west side.

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; As long as property owner builds within 11’; The initial use of the area as a driveway doesn’t require variance of the code & many homes both on the lakes and elsewhere are without garages.

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. 2-2; Would be ½ of what is allowed; As long as setbacks are used and permits are in order; Reasonable use of this property does not require variance.

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Business

Director Rogers handed out revised copies of the BZA By-Laws. He explained the red ink is what has been added, the bold cross outs is what has been eliminated. Does the board want to go through this now or take it, read it and review it at the next meeting. Richard Holmes stated he would prefer to review it, as did Chairman Hites. The board agreed unanimously to discuss this at the next meeting.

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As there was no further business, it was moved by Richard Holmes and seconded by Denny Sterrett to adjourn the meeting at 8:00 pm. Unanimously approved.

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Respectfully submitted,

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Gayle E. Rogers, Secretary

Area Board of Zoning Appeals

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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.”____________________________