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BZA MEETING MINUTES THURSDAY SEPTEMBER 20, 2012

The White County Area Board of Zoning Appeals met on Thursday, September 20, 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. Absent: Dave Rosenbarger. Also attending were Attorney Ben Diener, Director Joseph Rogers and Secretary Gayle Rogers

Visitors attending were: Larry & Helen Keesling, Christina Heath

The meeting was called to order by Chairman Hites. First order of business was the meeting minutes of August 16, 2012. Richard Holmes motioned to accept the minutes as written. Denny Sterrett seconded. The motion passed with a 3-0 vote. Chairman Hites announced that there were three members present and a minimum of three votes is required to grant or deny any variance. The petitioners have the option to be heard at this meeting or to continue to the next meeting.

#2662 Larry D & Helen R Keesling; Lot Number 35 in “Isle of Homes” Subdivision situated in Section 8, 9, and 16, Township 27 North, Range 3 West in Union and Liberty Township, White County, Indiana; more commonly known as 5091 E Bluebird Ct.

Violation: None

Request: The Area Plan Executive Director requests termination of this variance allowing a 1’ north side setback, a 6’ south side setback and a 1’ west (rear) setback, originally granted October 18, 2007, due to (12.4.13 C 2) inconsistency with a condition of approval and (12.4.13 C 4) fraud or misrepresentation of facts as provided for in the White County Zoning Ordinance

Director Rogers addressed the Board, requesting that this variance, granted in 2007, be terminated. Section 12.4.13 of the Ordinance provides criteria upon which a variance may be terminated. There are four criteria, two of which apply in this case:

1. Inconsistency with the White County Zoning Ordinance; Not Applicable

2. Inconsistency with a condition of approval; the variance was approved to build a new home. Mr. Keesling has since decided against pursuing the building of a new home and now desires to add on to his existing home. Variances are structure specific, rending this variance null and void

3. Inconsistency with a written commitment; Not Applicable

4. Fraud or misrepresentation of facts; the survey submitted with the variance request does not reflect a 5’ easement on the property along the roadside. The subdivision plat clearly provides for a 10’ utility easement, 5’ of which is at the edge of the road and 5’ that is on the parcel. “No permanent building shall be placed on said easement” per the deed of dedication of the subdivision plat. The variance that was granted allowed the proposed structure to be 2’ from the roadside property line which would be 3’ into the easement. Had the easement been reflected on the survey, it is the belief of the Area Plan office that the 2007 Board would not have granted the variance.

Larry Keesling stepped forward to answer any questions and to state that he does not intend to build a new building. He prefers to add on to his existing home, however, he no longer wishes to add on such a large garage. The original plan showed a three car garage; he now wishes to add a two car garage which would allow him to build within setbacks. Helen Keesling stated she not wish the minutes to reflect that they in any way committed fraud. Mr. Rogers and Mr. Diener assured her that there is no blame intended. The term fraud or misrepresentation of facts applies whether the error was deliberate or accidental. There is no reason to believe the easement information was deliberately omitted from the survey. Richard Holmes motioned to vote; Denny Sterrett seconded. The Board voted 3 – 0 to terminate the variance. Result: Variance #2662 is now terminated making it null and void.

 

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#2871 Larry & Helen Keesling; Lot Number 35 in “Isle of Homes” Subdivision situated in Section 8, 9, and 16, Township 27 North, Range 3 West in Union and Liberty Township, White County, Indiana; more commonly known as 5091 E Bluebird Ct.

Violation: None

Request: The applicant requests a 652.2’ elevation. The flood protection grade is 654’. The maximum variance possible is two feet below flood protection grade, 652’.

The DNR provides for the BZA to grant up to a 2’ elevation variance from the Flood Protection Grade (in this case 254’) to the Base Flood Elevation level (252’). The request is to be at 252.2’. Currently White County has a flood ordinance and the zoning ordinance has a chapter regarding flood districts. It is currently in the works to blend those two ordinances into one. In the past, the Board has operated on the same premise as any variance request, requiring the applicant to present a practical difficulty as burden of proof. Mr. Keesling agreed to be heard despite there only being three members present. He stated he desires to add a much needed garage to his home and would like those to be on the same level. He currently has no steps inside or outside his house and prefers to keep it that way, not only for aesthetics and roof line, but also in case of future health conditions. The parcel is located ½ mile from Norway Dam so it is inconceivable that flooding would occur on his land. In 2008 when the level reached the 100-year flood plain, he did not have water in his yard, nor did any of his neighbors. Denny Sterrett moved to vote on the petition. Richard Holmes seconded. Attorney Diener asked for a vote on item #1 on the ballot: “There exists a good and sufficient cause for the requested variance”. One of the first three items must exist for the Board to be able to consider the request. The vote was 3 – 0 in favor of item #1. Result: 3 votes cast; 3 grant; 0 deny; Petition is granted.

Findings of Fact

1. There exists good and sufficient cause for the requested variance; 3 favorable; 0 non-favorable; Reasons: garage floor & roof line would be 2’ higher than house if FPG used.

2. The strict application of the terms of this ordinance will constitute a practical difficulty to the applicant; no vote required as condition #1 was met.

3. The granting of the variance request will not increase flood heights, create additional threats to public safety, cause additional public expense, create nuisances, cause fraud or victimization of the public, or conflict with existing laws or ordinances; no vote required as condition #1 was met.

4. The variance does not involve a residential use located in a floodway. 3 favorable; 0 non-favorable; Reasons: garage being built.

5. The proposed new structure will be located on a lot contiguous to and surrounded by lots with existing structures constructed below the flood protection grade; 3 favorable; 0 non-favorable; Reasons: house to NW is approx. same elevation.

6. The variance is the minimum relief necessary; 3 favorable; 0 non-favorable.

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Business

BZA By-Laws: Following the special meeting held August 30th, the by-laws were revised to reflect the changes discussed. Director Rogers received Attorney Diener’s stamp of approval that no further language was necessary to reflect that if a member must recuse himself from a meeting due to a conflict of interest, that member may participate in the meeting as a citizen. Director Rogers and Attorney Diener determined there is no allowance in the 900 series (BZA) of IC 36-7-4 for the BZA to hold a special meeting of any kind. Therefore, that section was deleted from the by-laws. The Board was not in favor of this action. Attorney Diener will research further to ascertain whether or not the BZA may legally call special meetings. By-laws continued to next meeting.

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As there was no further business, Richard Holmes motioned to adjourn, seconded by Denny Sterrett, followed by a unanimous vote; President Hites adjourned the meeting at 8:00 pm.

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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, Executive 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.”____________________________