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BZA MEETING FEBRUARY 21, 2013

The White County Area Board of Zoning Appeals met Thursday, February 21, 2013, at 6:00 p.m. in the Commissioners’ Meeting Room, Second Floor, County Building, Monticello, Indiana.

Members attending were: David Rosenbarger, Dennis Sterrett, Richard Holmes, Randall Conwell. Absent: Carl Hites.

Also attending were Attorney Abigail Diener, Executive Director Joe Rogers, outgoing BZA Secretary/now County Auditor Gayle Rogers, and incoming Administrative Assistant Erin Carlson.

Visitors attending were: See Attached

The meeting was called to order by Vice-Chairman David Rosenbarger.

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Business

Reorganization: The first order of business was reorganization. New member Randall "Randy" Conwell was introduced and welcomed. Richard Holmes nominated Carl "Shaker" Hites as "President" - it is noted that the correct titles of Chairman and Vice-Chairman are used from this point forward in these minutes. Dennis Sterrett seconded and moved that nominations for Chairman be closed and vote be called. The motion was passed and Dr. Hites elected with a 4-0 vote. Richard Holmes nominated David Rosenbarger as Vice-Chairman. Dennis Sterrett seconded and moved that nominations for Vice-Chairman be closed and a vote be called. The motion was passed and Mr. Rosenbarger elected with a 4-0 vote. Richard Holmes nominated Area Plan Administrative Assistant Erin Carlson as Secretary. Dennis Sterrett seconded and moved that nominations for Secretary be closed and a vote be called. The motion was passed and Ms. Carlson elected with a 4-0 vote.

Minutes: There was a motion by Richard Holmes and a second by Dennis Sterrett to approve the meeting minutes of 8/30/12 and 9/20/12 as written; so moved.

By-Laws: Director Rogers reminded the board that incorporation of the BZA By-Laws document has been under discussion since July of 2012. Following a special session in 8/30/12, all of the board's requested changes have been made to the By-Laws, so the Director asks that the board approve them at this time. Richard Holmes commented that he still sees no mention of the board's ability to call special sessions in the document. Former BZA secretary Gayle Rogers reminded the members that state statute does not allow special meetings to be called by the BZA. Therefore, we had to remove that section from the By-Laws. Richard Holmes shared that he has spoken with members from two other Indiana area BZA boards, and that they hold special meetings. Gayle Rogers agreed that while they may hold executive sessions, statute does not allow special meetings. Director Rogers reminded the members that this board has the power to amend its own By-Laws at any time, without going through a legislative body. Therefore, he stresses that since the current BZA By-Laws do not reflect how this board operates, it is important to get the new By-Laws approved and in place - the members can always amend them as necessary in the future. Richard Holmes moved to accept the By-Laws as written; Randy Conwell seconded, and the board voted to approve by a vote of 4-0. Director Rogers asked Secretary Carlson to include, for the record, a reminder for him to follow up with the Area Plan Association regarding Richard Holmes' inquiry, and to report back to the board at the next session.

Appeal - Lewellen: Director Rogers noted that the Lewellen Appeal has been continued until the April 18, 2013 meeting, and asked therefore that the members move forward with variance and special exception applications.

Variances & Special Exceptions

Note: At the introduction of each case hearing, Director Rogers requested that the Staff Report be incorporated into the official record of the meeting, to be used as a reference document for the Finding of Facts for each hearing.

#2874 - John Jossund: Lot Number Two (2) in Amos Oak Crest Lodge Addition Number (2) being a Subdivision out of the Southwest Quarter of Section Thirty-two (32) Township Twenty-eight (28) North, Range Three (3) West in Monon Township, White County, Indiana; also known as 5525 N West Shafer Dr.

Violation: None

Request: The applicant requests a 5' rear setback on the North (street) property line, and a 3' East side setback to allow construction of a detached garage. The required setbacks for this lot size in the L-1 zoning district are 20' rear and 6' side.

Discussion: Director Rogers provided a summary of the 2-part variance request and read the Staff Report. He provided additional background regarding a pre-existing building permit obtained by the previous owners in 2008 to construct a garage with a 30' front (lakeside) setback, a 5' rear (roadside) setback, and a 5' side setback. That permit was issued and was in compliance with the ordinance at that time. After the permit was issued, developmental standards changed providing for a 20’ rear (road side) setback and a 6’ side setback. An improvement location permit is valid for 3 years, meaning that the project must be started within 3 years of ILP issue. Once started, there is an additional 7 years to complete the project. However, since this project was not started within the allotted 3-year time frame, the new owners were required to submit for a new ILP, and because the side and rear setbacks now requested are no longer valid, the applicant must now apply for a setback variance. They feel this is necessary in order to construct a garage, due to the placement of a well, 2 existing oak trees and a utility box which limit their ability to build within the required setbacks.

Director Rogers presented pictures of the subject property, including photos of his car parked approximately where the edge of the proposed garage would be located (an estimated 5' inside the road right of way). He continued with a detailed overview of the proposed garage location and the surrounding properties via overhead projection of photos and the applicant's survey.

Director Rogers asked if the board had any questions for him. Richard Holmes asked for clarification as to garage door location and access to the garage, which was then provided and discussed in more detail, including an estimate that, based on the survey, the edge of the proposed garage would be approximately 12 feet from the blacktop edge. With no further questions from the board, Vice-Chairman Rosenbarger invited a representative for this request to approach the podium. John Jossund approached and introduced himself, and was asked if he would like the two parts of his variance request voted on separately or in combination. Mr. Jossund asked for separate votes. When asked if he wanted to table his application until next month, because only 4 members were present and 3 votes would be required to pass, he stated that he would take his chances with the 4-member board.

Mr. Jossund shared the history of this project since he purchased the property. He confirmed Director Rogers' summary was accurate, and added that the footprint originally requested by the previous owners has not changed, and that the additional 2' feet requested on the side setback at this time are so that the existing oak trees may remain in place.

Vice-Chairman Rosenbarger asked if there were any questions for Mr. Jossund from the commissioners. Richard Holmes asked if there had been any input from neighbors. Director Rogers stated that one letter had been received and included in the board packets. This neighbor objected to this request due to visibility of traffic looking northbound. Director Rogers went on to share that there has been controversy in this area, with 2 garages south of this location which were permitted in such close proximity to the road right away by the 1995 ordinance. There was great concern at the time over poor visibility, and while promises were made by owners at the time that they would not park in front of the garages, they did, and it caused problems for drivers in that area. The neighbor to the south of Mr. Jossund's property wrote to express that he fears this may cause the same type of visibility issue.

When no audience members came forth with questions, David Rosenbarger shared his own concern, in that we have not heard from the neighbor to the immediate North/Northeast of the subject property. He wondered if this neighbor would be able to see traffic from the South when backing out of his property before his bumper actually reaches the blacktop.

There was much discussion about visibility, and Mr. Jossund agreed that this is a viable issue. Richard Holmes moved that the issue at hand, the 5' rear setback, be voted upon at this time. Dennis Sterrett seconded the motion, and Ms. Diener passed out the ballots.

Result: 4 votes cast; 1 grant; 3 deny; Petition is denied.

Upon the Vice-Chairman's reading of the result, Mr. Jossund asked the board if there was another number that would be more agreeable. Again, much discussion followed, with the final result being this: It was agreed that a) Part 2 of the applicant's variance request would not be heard at this time, since the denial of Part 1 made that a moot issue; b) the usual 1-year waiting period requirement could be waived if Mr. Jossund submitted a revised plan which addressed the issues brought up at this meeting. This revised version must be submitted to Director Rogers for review; c) Mr. Jossund was encouraged to speak with his neighbor to the North/Northeast and obtain that neighbor's input regarding his proposed garage placement; d) Director Rogers would evaluate Mr. Jossund's revised variance request and, if deemed viable, bring it to the board at a future date for re-evaluation.

#2875 - Kacy Carter (Special Exception): A part of the South East Quarter (1/4) of the North East Quarter (1/4) of Section Twenty-Five (25) Township Twenty-Seven (27) North Range Six (6) West, more or less; also known as 108 S Range St, Wolcott, Indiana.

Violation: None

Request: The applicant desires to operate a tattoo parlor within the 108 S Range St location in Wolcott city limits.

Discussion: Director Rogers provided a summary of the special exception use request and a reading of the Staff Report. He then read 4 additional letters of support into the meeting record, as those were received after board packets had been disseminated. He went on to present pictures of the proposed tattoo parlor and abutting apartment to the board, and concluded by asking if there were any questions he could answer. When there were none, Vice-Chairman Rosenbarger invited a representative of the request to address the board.

Kacy Carter, the owner of the subject tattoo parlor, approached the podium and reiterated that she had received all required health department permits and that she is confident she has adequate parking spaces available for her customers based on the light vs. busy times of her shop and those businesses surrounding her location.

There were no questions or comments from the audience or the board. The Vice-Chairman reminded the applicant that this is a 5-person board, that 4 were present at the time, and that it would take 3 votes to pass. She had the option to table until next month, but advised she wished to move forward with a vote at that time. Dennis Sterrett made a motion to vote on the issue at hand, and Richard Holmes seconded. Ms. Diener passed out the ballots.

Result: 4 votes cast; 4 grant; 0 deny; Petition is granted.

Director Rogers advised the applicant that she would need to appear in the Area Plan office to pay for and obtain her Special Exception Use Permit; she agreed that she would do so.

#2876 - Kesler/Xtreme Contractors Special Exception Renewal: That part of the East Half of the Northwest Quarter of Section 34, Township 27 North, Range 4 West in Honey Creek Township, White County, Indiana, also known as 366 E US Hwy 24, Reynolds.

Violation: None

Request: The applicant requests recertification of the grandfathered Special Exception Use for an asphalt plant. Applicant wishes to add 28' x 14' scale just north of batch plant buildings.

Discussion: Director Rogers provided a summary of the special exception recertification request and a reading of the Staff Report. He explained that because the current asphalt plant use was grandfathered, this hearing would be different in that only recertification of the use was required. While the applicant is not required to carry a special exception use permit, because of the grandfather clause, recertification is required when modifications are planned for the property, and the board must then review to ensure there will be no additional impact to traffic or neighboring properties.

Director Rogers presented photographs of the subject property and neighboring properties, noting the proposed location of the new scales. He also confirmed via photographs that the manufactured home which was once in place on the property has been removed by the applicant, as was required to resolve all previous compliance and split-zoning issues for the parcel (see Staff Report for detailed description of this issue). He then presented the applicant's survey to the board, showing where the additional scales would be located.

When there were no questions for Director Rogers, Vice-Chairman Rosenbarger invited a representative of the request to address the board.

Mike Kesler, with Xtreme Contractors, introduced himself as one of the owners. There were no questions for Mr. Kesler, but Director Rogers was asked to clarify for the board exactly what would be voted on. After his clarification, which included a reminder that this would be a hand-vote only, vs. a vote by ballot, Mr. Kesler added that the primary goal of this expansion was to afford the company the ability to become state-certified and grow with additional state-certified jobs. This expansion will allow him to bid on additional state and county jobs that, prior to this, he would not be able to bid on.

When there were no additional questions or comments, Richard Holmes moved that the recertification approval be put to a vote. Dennis Sterrett seconded. Again confirming with Director Rogers that this would be a hand-vote, Vice-Chairman Rosenbarger called for said vote.

Result: 4 votes cast; 4 grant; 0 deny; Petition is granted.

#2877 - Mag Pellet Variance: Part of the West Half of Section 27 and part of the East Half of Section 28, all in Township 27 North, Range 4 West, Honey Creek Township, White County, Indiana, also known as 64 E 100 N, Reynolds.

Violation: None

Request: Applicant has purchased the former Valero Renewable Fuels site in Reynolds for the purpose of constructing and operating an iron oxide pellet manufacturing plant. Request is broken down into 3 separate items: 1) Building & structure heights; 2) berm height; and 3) landscaping exceptions.

Director Rogers provided a summary of the 3-part variance request, including a reading of the Staff Report. Please see said Staff Report and its attachments A, B and C for details of what was read into the record. Director Rogers found that an iron oxide manufacturing plant would not violate the terms of the commitment agreement attached to the property in question, and found that it would be a permitted use in the zoning district and location in question.

Director Rogers shared photographs of the sizeable parcel in question, showing neighboring properties, residential areas, roads, etc. in connection with the property. He also provided an overview of the applicant's surveys submitted with the variance request, and shared that the applicant was requesting that the 3 items at hand be voted upon separately by the board.

As there were no questions for Director Rogers, Vice-Chairman David Rosenbarger invited a representative for the variance request to approach the podium. Michael Twite introduced himself as the Environmental Manager for Magnetation, and shared that he has served as a planning commissioner on a zoning board for 6 years, himself. He confirmed that Magnetation is requesting this be handled as 3 discrete requests, and provided additional detail about why the 3 variances are necessary for this very specific type of business and its manufacturing process. He stressed that these are the minimum required for Magnetation to be able to utilize this property and to provide the appropriate buffering for neighboring properties. Mr. Twite answered questions from the board about specific types of trees proposed for landscaping (conifer/evergreens), and whether or not he was confident that the height variance he was requesting would suffice (he assured the board it would, as it included a small buffer). He shared that the Allens, the property's neighbors to the South, were in the audience for support. Director Rogers added that John Heimlich of the County Commissioners had spoken with him and shared the County's support, as well.

There being no further questions from the board or from the audience, Richard Holmes moved that item #1 be put to a vote. Dennis Sterrett seconded that motion, and Ms. Diener handed out the ballots. After each set of ballots was returned to the Vice-Chairman, he read the following results into the record:

Result - Item #1/Height: 4 votes cast; 4 grant; 0 deny; Part #1 of petition is granted.

Result - Item #2/Berm: 4 votes cast; 4 grant; 0 deny; Part #2 of petition is granted.

Result - Item #3/Landscaping: 4 votes cast; 4 grant; 0 deny; Part #3 of petition is granted.

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There being no further business, Dennis Sterrett moved that the meeting be adjourned; Richard Holmes seconded. Vice-Chairman Rosenbarger adjourned the meeting at 7:38 pm.

Respectfully submitted,

____________________________

Erin Carlson, Secretary

Area Board of Zoning Appeals

___________________________

Joseph W. Rogers, Executive Director

White County Area Plan Commission

Document Prepared By: White County Area Plan Secretary, Erin Carlson “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.” _________________________________________________


EXHIBIT A

WHITE COUNTY AREA BOARD OF ZONING APPEALS

PUBLIC NOTICE OF REGULAR SESSION

 

February 21, 2013 - 6:00 p.m.

2nd Floor Conference Room

White County Building

Monticello, IN 47960

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AGENDA

6:00 P.M.: The White County Area Board of Zoning Appeals will meet in Regular Session pursuant to Indiana’s Open Meetings Law, I.C. 5-3-1-2 (b) with the following agenda:

READING OF THE MINUTES – August 30, 2012 and September 20, 2012

FINDINGS OF FACT - None

BUSINESS –

1. Reorganization

2. Bylaws, continued

3. Appeal – Lewellen, continued to 4/18/13

VARIANCES –

1. #2874 - Jossund

2. #2877 - Mag Pellet

SPECIAL EXCEPTIONS –

1. #2875 - Carter (Tattoo Parlor)

2. #2876 - Kesler/Xtreme Contractors (Asphalt Plant Recertification)