Board of Zoning Appeals (BZA)

Board of Zoning Appeals March 12, 2013 Pledge of Allegiance was said and attendance was taken by the Secretary. Present: Larry Mitchell, Greg Morical, Steve Schanke, Al Wopshall, Jay Parks. Staff attending: Wayne DeLong, Carol Sparks Drake, attorney. A quorum is present. Mitchell I’m going to call the meeting to order. Again, there are agendas out front if you want to see what’s going on. We have a light agenda tonight. First item on it is the Pledge of Allegiance. All Pledge. Mitchell The next item on the agenda is attendance. DeLong Mr. Mitchell? Mitchell Here. DeLong Mr. Morical? Morical Here. DeLong Mr. Schanke? Schanke Present. DeLong Mr. Wopshall? Wopshall Present. DeLong Mr. Parks? Parks Present. DeLong Thank you. Mitchell We have a full Board. Next item is the approval of the February 12, 2013 meeting minutes. Schanke Once again, I read everything unquoted in here and it’s correct from my recollection. The testimony we heard; I didn’t see anything glaring that didn’t jive so as far as I can tell, they are complete and accurate. Mitchell Would you like to turn that into a motion? Schanke I move that the minutes be approved as presented. Parks Second. Zionsville Board of Zoning Appeals March 12, 2013 Mitchell Motion has been made and seconded. Any further discussion? Hearing none, all those in favor, signify by saying aye? All Aye. Mitchell Opposed, nay? Motion carries. Next, we will conduct new business. There is none on the agenda but we do have some students in the audience from, I think from their government class. Thank you for coming. I’m not sure if you know what meeting you came to. We’re the Board of Zoning Appeals, okay? Zoning regulations. Basically if you want to build a building, you want to add onto a building. You want to do anything, there are zoning regulations that tell you what you can and can’t do. If you want to do something outside that, you have to come in front of this Board to request a variance from that. We either approve it or deny it based upon your presentation and what they call findings of fact. Basically, findings of fact that say, “It’s okay for you to get this variance because you’re not going to hurt anybody else, it’s not going to be a public safety problem. It’s not going to have, you know, any other kind of concerns to the community. So, because of that, we’re going to find it’s okay for you to have the variance. Often, what happens is our staff goes and they work out something with the petitioner so they can still get done what they want but still comply with the zoning. So, we have a Board from various groups. We have certain people that represent the old city limits, if you know the old Zionsville City limits and we have certain people that represent the area outside the old city limits. Schanke You mean township. Mitchell So, we have no other items other than the item to be considered, the execution of the following findings of fact.The first item is 2012-15-DSV C. Bowman. DeLong Yes, we have a set for you this evening. Unless anyone has any—and these are all in your packets—unless anyone has any corrections to the petitioner’s findings, we’ll send a set down for— Mitchell Is there a good way to do this? Just send them all down and we sign them all. DeLong Send them one at a time. Parks Do we need to actually enter this into the record? Schanke Make a motion? Parks Make a motion? Drake I recommend you do so. Parks If that’s the case. I will move that we adopt the findings of fact in 2012-15-DSV as presented. Page 2 of 9 Zionsville Board of Zoning Appeals March 12, 2013 Schanke Second. Mitchell The motion has been made and seconded. Any further discussion? Hearing none, all those in favor of the motion, signify by saying aye? All Aye. Mitchell Opposed, nay? Motion carries. Next item on the agenda is 2012-16-DSV D. Eid. DeLong Again, in your packets, there are these findings related to a variance for a pool for the Eid family unless anybody has any corrections or modifications to the commitments, I’m sorry, not commitment, to the findings of fact rather. We’ll send them down. Mitchell This was one where somebody was going to put a pool in their backyard and the what they call lot coverage which is basically anything that’s not grass is considered lot coverage and their lot coverage because of the pool was going to be larger than what was allowed by our zoning regulations and they came in to request a variance to build a larger pool and we approved it. So. Morical I move that we approve the findings of fact in 2012-16-DSV as presented. Schanke I will second that. Mitchell Motion has been made and seconded. Any further discussion? All those in favor, signify by saying aye? All Aye. Mitchell Opposed, nay? Motion carries. Thank you. Next item on the agenda. I am going to recuse myself from this matter. And, the Vice Chair will take over to chair this item. Schanke Have you all had a chance to review the draft of what we heard at the last meeting? Do you have any comments? Or do you feel this—I feel this accurately reflects the testimony that we heard. Morical I have a few comments if I could. Schanke Absolutely. Morical I believe it would be helpful to note in here though we believe it’s clear that the petitioner had the burden of proof. That’s one item I would like us to modify. I also have a question for counsel. On item #2, it talks about adjacent property. Drake Well, as you may recall, counsel for Wal-Mart, his position was that it is limited to the properties immediately adjacent to their subject’s site. The statute does not say the real estate or the property; it says the area adjacent. So that’s why you see the differentiation in the second finding between what the record indicates on real Page 3 of 9 Zionsville Board of Zoning Appeals March 12, 2013 estate immediately adjacent and the area adjacent based on your record from neighbors, I believe it was Timber Ridge to the north and Weston to the east. Morical Is there any case law that defines how much further away from the actual piece of property an area adjacent would be? Drake I did not find any annotations, definitive case law. Wopshall I seem to remember where we would have to send out notice to people within like 600 feet of the property. Would that be— Drake That’s for purposes of your notice but since the legislature has said the area adjacent, whether they would receive your notice or whether it could be broader than that to what is arguably an area nearby that is affected is an open question. Wopshall Thank you. Drake But, there is a differentiation in there between immediately adjacent and area. And, I do encourage you to ask questions or request revisions because I would note that your actual motion said it was being approved consistent with Staff’s findings. When I drafted these, I went through your entire transcript to try to extrapolate your questions, your comments, particularly Mr. Morical’s after that motion indicated the burden was on petitioner. So, by all means, I encourage you. These need to be your findings, you to be comfortable with them. Morical And, I certainly appreciate that. I would like, if the rest of the Board’s comfortable with this, to get this in a Word document and make some suggested modifications and then circulate it and give everybody an opportunity to review those and then we would consider this at the next Board of Zoning Appeals meeting. Drake I’m not sure if you’re saying circulate a Word document among yourselves for input outside— Morical Outside of the context of the meeting? That’s fine. Drake Yes. Morical Well, I would like a Word document that I could maybe then revise— Drake With the red line. Morical and we could pick it up at the next— Drake And I think if you share that back and forth with counsel that would be great. Morical That would be fine. Page 4 of 9 Zionsville Board of Zoning Appeals March 12, 2013 Drake And I’d be glad if anybody else wanted to email me similarly to kind of be the receiver of all the comments and insert them. Morical Perfect. Parks So rather than sending it to all of us, you would just send it back and forth to each one individually. Drake Yes, please. Parks All right. Drake And then I can circulate a red line version which shows a composite of all of the comments that have come in as well as a clean version for next month. Parks I had one other comment. Schanke Just a second. Mr. Morical, then, will you include in your red line copy where you want to include placing the burden upon the petitioner to satisfy these— Morical The elements in the zoning ordinance? Yes, I will. Schanke I’m sorry, go ahead, Jay. Parks Okay, in the third paragraph, it’s a construction issue as opposed to a factual issues in that you have a verb that doesn’t seem to track with the last part of it. You have, “You conducted a public hearing yadaya, then it says, “may approve” rather than it should be something like either “and may approve” or “it may approve” or something like that. They are two different things. Schanke Page 2? Parks Page 1. Page 1. Schanke Oh, page 1. I was on page 2. Parks Third paragraph. Drake Okay. Thank you. Parks Really they are two different thoughts and the sentence was almost Churchillian in its length. Mitchell Did you want to spell that for the record? Parks Churchill once wrote a paragraph that ended in a semicolon. The second paragraph began without a capital. Page 5 of 9 Zionsville Board of Zoning Appeals March 12, 2013 Morical So, I would move that we provide further comments to counsel on the draft findings of face in 2012-17A-DSV. Schanke Is there a second? Parks Second. Schanke Any further comments? Call for the question. All those in favor of the amendment as presented, signify by saying aye? All Aye. Schanke The motion carries. Al, did you have any input now that we’ve done it? Wopshall No, I am in general agreement with what’s in this document. With the comments we’ve made adding to that, I think we’ll be looking good when we see it as a Word document. Thank you. Schanke Well, Carol will get something to us that we can— Drake Thank you. Mitchell Thank you, Mr. Schanke. Just for you guys, that was the Wal-Mart petition. That was a big one. You guys missed last month when you could have been here for four hours listening to that, so. Okay, next on the agenda is 2012-18-SE under the name B. Slack. DeLong Yes, these findings were circulated in your packet. These were the findings that were submitted by the petitioner. If there are any comments or corrections, I will certainly hear them now. Certainly, prepared for a motion for consideration and then we’ll send down a copy for signatures. Morical Wayne, does this have the “farm addendum” attached to it? Schanke I believe this is the one. DeLong We do have two separate matters. One is the Slack petition. The other is the Bradley petition. Um, both of these findings of face we have a separate document which will be executed, not simultaneously with this action but we don’t have an executable version of this yet back from either of those parties so we’re working on those commitments right now. And, this is provided in your package just for reference. Mitchell Okay, so for clarification, the document that’s labeled “Commitments concerning the use and development of real estate” is a template essentially that you will be using for both 2013-01-SE and 2013-02-SE. Page 6 of 9 Zionsville Board of Zoning Appeals March 12, 2013 DeLong That’s correct. I mean, certainly, if the Board wanted to wait to approve these findings until this is prepared, recorded, executed, all those different actions, certainly open to that. Schanke If I recall, our vote, our motion, clearly said it was contingent upon them agreeing to the right to farm commitment. However, once we sign this, we’re saying, I don’t know. DeLong We’re prepared either way. I mean, the way I’ve seen this typically handled is the commitments are executed at some point in time and it’s up to the Staff to make sure that everything is in line when the building permit comes in. But, certainly we’re here to work at the direction of the BZA. I mean, the home isn’t going to be under construction without this commitment being executed. Schanke So, this was 18— DeLong So we can have this done altogether, that’s fine. Schanke I’ll make a motion that we approve the findings of fact as presented for petition 2012-18-SE, again ILP land improvement permit will be granted contingent upon the commitment to form, commitment considering the use and development of the real estate. Wopshall I will second that. Mitchell Motion has been made and seconded. Is there any further discussion? Hearing none, all those in favor of the motion signify by saying aye? All Aye. Mitchell Opposed, nay? The motion carries. Okay, we have one— Parks I’d rather wait. Mitchell Next on the agenda is 2013-01-DSV S. Bradley. DeLong These findings of fact are circulated in your packet. They are prepared for you this evening. These are the findings that the petitioner supplied and certainly ready for voice vote for approval and signature this evening. Morical Wayne, is this another one where the commitment concerning the use and development of real estate should apply? DeLong The Bradley petition had a variance and a special exception. Offhand, I do not recall if the commitments were tied to the variance or to the special exception. I would say they were tied to the special exception because that’s what approved the dwelling, the use of a dwelling in the Ag District. Page 7 of 9 Zionsville Board of Zoning Appeals March 12, 2013 Mitchell For those in the audience, this is a situation where we have areas of our town that are zoned agricultural which it’s obvious, you know what agricultural means and these were people that wanted to build a house in that agricultural area. And you would think, “What’s the big deal?” Well, somebody might build a house in an agricultural area and then complain about the fact that the people next to them are farming. It creates a lot of dust and stuff like that. I see some of you smiling. It happens. It happens all the time where they complain even though they’ve known. So, we’re approving them to build those houses in those areas but they have to sign a commitment basically saying they’re not going to complain about people farming around them. So. Schanke And it includes agribusiness. You could put a hog feeder in operation. All levels of agriculture. Just so they can’t say, “I didn’t know they were going to have cows next door or chickens that woke up early.” Mitchell All right. Back to the issue at hand. Morical I move that we approve the findings of fact as presented for petition #2013-01- DSV. Schanke As presented? Morical Yes, as presented. Parks I’ll second that one. Mitchell Motion has been made and seconded. Further discussion? Hearing none, all those in favor of the motion signify by saying aye? All Aye. Mitchell Opposed, nay? Motion carries. Next on the agenda is 2013-02-SE under the name S. Bradley. DeLong Again, findings for the special exception were circulated in your packet and are prepared for signature this evening by voice vote related to their approval. This petition is seeking a permit for the new home that they are planning. Schanke I’ll make a motion that we approve the findings of fact contingent upon the filing of the proper right to farm prior to issuance of any ILP for building permits. Morical Second. Mitchell The motion has been made and seconded. Is there any further discussion? Hearing none, all those in favor of the motion, signify by saying aye? ? Aye. Mitchell Opposed, nay? Page 8 of 9 Zionsville Board of Zoning Appeals March 12, 2013 Parks Nay. Mitchell 3 to 1. The motion carries. Last item on our agenda is 2013-03-DSV under the name A. Smith. DeLong Yes, your final set of findings of fact for this evening were prepared by the applicant. The staff did modify some of them; hence, the format you see this evening. Again, these are ready for your voice vote related to their approval and are here for your significant. Morical I move that we approve the findings of fact as presented in petition 2013-03- DSV. Parks I’ll second that. Mitchell Motion has been made and seconded. Is there any discussion? Hearing none, all those in favor of the motion, signify by saying aye? All Aye. Mitchell Motion carries. There being no other matters come before this Board, I call the meeting closed. Page 9 of 9