Board of Zoning Appeals (BZA)

Town of Zionsville Board of Zoning Appeals April 9, 2012 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 All right. I’d like to call the April 9, 2013 Zionsville Board of Zoning Appeals meeting to order. The first item on the Agenda is the Pledge of Allegiance. All Pledge. Mitchell Next item on the Agenda is the attendance. DeLong Mr. Mitchell? Mitchell Present. DeLong Mr. Schanke? Schanke Present. DeLong Mr. Wopshall? Wopshall Present. DeLong Mr. Parks? Parks Present. DeLong Mr. Morical? Morical Present. Mitchell We have a full Board. Next item on the Agenda is the approval of the March 12, 2013 meeting minutes. Are there any corrections? Schanke I have one or two. They’re just minor. In a few instances, I’m referred to as talking about an IOP. It was an ILP, a building permit, a land improvement permit, so wherever you see IOP it really means building permit. It just was in the translation. I was probably slurring my words or something. There was a couple of, as you’ll notice they’re a little difficult to read, but there were a couple of minor spelling [errors]. One was with the intent or the right to farm agreement they have to put in the CCI’s. Anyway, that’s it, nothing major just some minor things. Mitchell All right. Are there any others? Zionsville Board of Zoning Appeals April 9, 2013 Morical I have correction on page 4, top of the page where it says is there any case load that defines how much further away from the actual piece of property in the area adjacent would be, that should be case law instead of case load. Other than that no comments. Mitchell Are there any other comments? Parks Somebody better, own up to being a second on page 2. I would, but I can’t because I made the motion. Top of page 2. Mitchell Top of page 3? Parks Or page, 3 I’m sorry. Schanke If I recall I was seconding a lot of things. In fact, I remember looking down at, yes I’ll own up to that one. Again, I was probably away from the microphone. Wopshall We’ll give you credit for that. Mitchell All right, any further? Hearing none, I would entertain a motion to approve the minutes. Parks I move that we approve the minutes as corrected. Mitchell Motion has been made. Is there a second? Wopshall I second. Mitchell All those in favor signify by saying aye? All Aye. Mitchell Opposed, nay. Motion carries. The next item on the Agenda is the new business. We have two items on the docket tonight. The way these work is the petitioner will come forward to the microphone. Please speak distinctly into the microphone, first of all starting off with your name and your address. Then the petitioners will be allowed 15 minutes to present their case. Any remonstrators will be given 15 minutes to remonstrate. The petitioner will be allowed five minutes of rebuttal and then finally any remonstrators will be allowed five minutes for the final rebuttal. Anybody wishing to speak tonight please stand and hold up your hand, so the staff can administer the oath. Drake Do you swear or affirm that the testimony you will offer tonight will be the truth, the whole truth under the penalties of perjury for the state of Indiana? All I do. Drake Thank you. Page 2 of 19 Zionsville Board of Zoning Appeals April 9, 2013 Mitchell All members wishing to speak have answered in the affirmative. First item on the Agenda is Docket 2013-04-DSV under the name Sullivan Foundation. The address of the project is 2010/2020 West Sycamore Street. It’s a petition for Development Standards Variance to permit the replat of four existing lots into three new lots, two of which will be less than 8,000 square foot minimum and one of which will require setback variances to permit existing structures to remain in their current locations. Would the petitioner please come forward? Evans Thank you Mr. Chairman. My name is Stan Evans with RSE Realty in Indianapolis at 22 East Washington Street. I’m representing the P.H. Sullivan Foundation. That’s probably very familiar to you at this point having been here a couple of times before. So, as described in the petition, this is the Sullivan Munce Museum and the two residential properties to the south of that. We were in here last year seeking to replat from four lots to three with the residential lots being smaller than is shown today. We revised our plan to essentially take the east/west lot line that divides the southern two lots and just turn it to be a north/south line splitting the two houses that are there, so the three lots will incorporate. Lot #1 will actually be the main lot. It will be the museum and then we’ll have two separate residential lots which we’ll now incorporate, also vacated alleys that have been previously vacated. The variances we’re requesting, the minimum lot size is 8,000 square feet. By making these configured this way both of them are just under 8,000 square feet. One is 7,000-- I need my magnifying glass here on this version, but 7,900 feet or so and another is about 7,400 square feet. The setback variances, we picked up an additional setback variance by making this change. One of the variances is the same, which is the setback off of Second Street to the house and then we also pick up, because of where the rear lot line is of that corner lot, we have a half of a foot setback off the existing garage to that rear property line that separates it from the museum property. Staff has recommended that we provide an easement to allow for maintenance along that north line to allow somebody in to maintain that north edge of that garage and we are amenable to that. I’d be happy to take any questions. Mitchell Are there any questions for the petitioner? Wopshall Let’s talk about the garage. You are agreeable to the 5-foot easement. My concern is would you be agreeable to having an amendment that says that this building is grandfathered and when it is in such a state of disrepair nothing else would go that close to the property line? Evans Well, correct me if I’m wrong, but I believe that if this building were taken down it would have to be, the variance would no longer apply. Is that not correct? Wopshall Well that’s true, but you could improve the current building. Evans So you’re asking for an amendment that says if it were to be improved that it would be, it would have to be torn down? I’m not sure how we would measure necessarily what you’re asking. Page 3 of 19 Zionsville Board of Zoning Appeals April 9, 2013 Wopshall I’m just trying to get away from putting something new within 5 feet of the property line. Evans Well I think if we ever got rid of this building I would be fine with that variance going away. I mean I guess the question is if we can maintain it where it is as it is and then if it ever went away that there would not be a building at the same setback. I’m not sure how that’s best worded, but-- DeLong I can jump in here. The way the ordinance is currently worded, the building can exist in perpetuity in its current state. It could actually incur some level of damage and that damage, as long as it does not exceed two-thirds, the building could be reconstructed in the same location, but if there’s an act that causes basically the total destruction or a significant destruction as defined by the code, the building would have to be relocated at a setback. Evans In compliance with the ordinance. DeLong Correct. Schanke Or-- DeLong Seek a variance. Schanke Another waiver would be issued by this Board. Evans Right. We’d have to be back asking again in that event. Conceptually, I don’t think we have a problem that if this building goes away that the next one is not coming back at the same place. Schanke And I’m correct that the 5-foot easement is to the vacated alley? Evans Into the vacated alley for the benefit of the – Schanke Really it’s not a, you know, we’ve heard several people come in and want to put fences and things pretty close to the property line anyway. I don’t, it’s adjacent to the vacated alley. As long as they have an easement to get in I don’t really see a problem with that myself. Wopshall Not currently, yes. I also have a concern about the one house you’re asking for the front variance to be the, instead of being 20 feet it’d be 14 feet. I was concerned about that if that house was reconstructed it would be too close to the front property line. Evans Well it’s a difficulty with this corner lot. Obviously, we have an issue. Part of the findings also will reflect that that setback is consistent with the other buildings on the block. The house at the corner which is the Art Center and they’re not substantially different than that, so we don’t feel as though that’s inconsistent with the character of that street, so I think we would like to be able to maintain that if something happened to be able to come back in. Now it Page 4 of 19 Zionsville Board of Zoning Appeals April 9, 2013 sounds like in this ordinance if it blew down we would be, and having to reconstruct altogether, we’d be back the same way, we would with the garage, wouldn’t we? DeLong Actually, no. There’s a caveat in the code that allows for front yard setback averaging, so a new home could be constructed replacing the existing home and that would actually be permitted to go back at 14 feet and that is the setback that’s established by the museum itself. Now that clause only kicks in if the home site and the museum are under separate ownership, which may or may not- - Evans May or may not, but I would say if somebody is rebuilding it is probably somebody besides the museum. DeLong So I don’t know if that offers the level of protection that you were focusing on. Schanke And Wayne, didn’t you tell us last year at the meeting that these are less than the 8,000, but they’re consistent with some of the other lots in that immediate adjacent area? I believe you stated that there are some of the existing that are less than 8,000. Evans Our remonstrator has a lot that’s smaller than either of the two that we – Schanke That’s correct, yes I remember that. Evans That we’ve now proposed. DeLong Right, the two lots that were proposed back in say September or maybe even during the summer I don’t really recall. Those lots were in compliance with the lots that you find in the Village. Now that the lots are larger that statement is still true and these lots are just a very minor amount below the standard of 8,000. Schanke Rounding error, kind of. Mitchell Are there any more concerns or questions for the petitioner? Morical Just one question. Since we did have a remonstrator last time I just wanted to confirm that the museum sent out notices again for this meeting? Evans Oh yeah, we have. They were notified when we had our hearing to be able to come to this meeting and then they got notice again of this yeah, so. Mitchell All right. Are there any remonstrators in the room tonight? Hearing none, there are no further questions for the petitioner. Is there any further discussion by the Board? Schanke I think it looks better. I know we’ve gone through some iterations and I think we’ve come to an amiable agreement in my mind. With that said, let me find my cheat sheet. I will make a motion that we, hold on a second. I will make a motion Page 5 of 19 Zionsville Board of Zoning Appeals April 9, 2013 that we, I move that Docket #2013-04 Design Standards Variance to allow for lots smaller than the permitted in the Residential Village Zoning District and to allow for an encroachment into the required front yard setback and side yard setback for the properties located at 2010 and 2020 West Sycamore Street be approved as presented with the provision that a 5-foot wide ingress/egress easement being 48.8 feet in length be granted across the museum parcel which is identified as #2 in favor of the two lots at the time that, at the time Lot #2 is conveyed to a party other than the Patrick Henry Sullivan Foundation, Inc. DeLong I do want to point out that the museum lot will be Lot #1. Evans Correct. Schanke Okay. DeLong The motion is still good. Schanke Yeah, yes. Mitchell A motion has been made. Is there a second? Wopshall I second. Mitchell Is there any further discussion? Hearing none, all those in favor of the motion signify by saying, aye? All Aye. Mitchell Opposed, nay. Motion carries. Thank you. Evans Thank you. Mitchell The next item on the docket is 2013-05-DSV under the name T. Kogan, address of the project is 185 South Main Street. It’s a petition for Development Standards Variance to allow for a 240 square foot produce stand with an outdoor display of merchandise on the property between the months of April and November. This will be the primary use of the property without the provision for independent parking, potable water, and sanitary sewer while utilizing 24 square feet of wall signs. That stand will be removed as soon as the selling season is complete and the lot will be returned to its prior condition. Before we start this I am going to have to leave, so I’m going to have Steve take over as chairing this Committee. Schanke There will be no problem. We still have a quorum. We will request unfortunately that Mr. Mitchell leaves the room, but we’ll signal to him. We promise not to make him wait as long as last time okay? Okay, having said that the time rules have presented already. You have 20 minutes to present your position. Page 6 of 19 Zionsville Board of Zoning Appeals April 9, 2013 Kogan My name is Todd Kogan. I am one of three owners of the property along with my two brothers and the petition is kind of self-evident. We think that--We have a vacant lot on Main Street and I have some people that I feel like can – Schanke Can you speak up just a little bit? Kogan The vacant lot is on Main Street, the corner of, just one house over from the corner of Pine and Main and we want to put in basically a fruit and vegetable stand. If you look on the pamphlet there’s some pictures there in the wintertime, which was like yesterday, and the pylons kind of give you an idea of where we propose to build the stand. There’s a plot plan. It sits back off of Main Street and we just feel like it’s the perfect place to do something that’ll bring people downtown and provide a service that brings people to Main Street. I’ve had discussions with all the neighbors and Patrick’s restaurant and the people across the street, the people behind us, the people next to us and it just seems like a common sense use of the land because right now we’re not in a position to develop the land or build a building on it or try to speculate a building and rent it out and I inherited the property four months ago, my brothers and I. I just feel I need to do something with it and it seems like a viable idea. The people that run the stand historically have had one in Carmel, Indianapolis, Brownsburg, different locations and I just feel like it’s a really neat idea for Main Street. The parking. There’s two spots in the back that would be for employees. We don’t really feel like we’re going to pressure the restaurants at 5 o'clock or at noon. Our customers will be throughout the day and hopefully they’ll be repeat customers. And my goal would be to service the Town of Zionsville and half the residents of, say, West Clay. I’d love them to come over, have lunch, buy their fruits and vegetables, get some chocolate, have a coffee and go home. So, there’s a picture in the back. This and that’s in essence what we want the stand to look like. It’s rough-sawn board and batten poplar and there’s some different plans. I think you’ll see the Weber Farms and they’re here if you have any questions for Tip and Todd Weber. And, that’s what I want to do. Schanke Does the Board have any questions for the petitioner? Jay? Wopshall You said that this would be constructed seasonably and then at the end of the season it would it be taken down? Kogan Yes, sir. Wopshall And stored elsewhere. Kogan Yes, sir. Wopshall And then potentially rebuilt? Kogan Yes, sir. Schanke What type of floor is it? Page 7 of 19 Zionsville Board of Zoning Appeals April 9, 2013 Kogan Plywood. Schanke It would be a wood floor? Kogan Wood floor. Schanke And it’ll all come apart. Wopshall The signs you want to put on that, were you want to put the building is kind of isolated, so you can sort of see where the building would be from Main Street, but from the other side, can you see the – Kogan No, you can’t and I think that’s probably more of a sign for enthusiasm and prices and whatever the market is selling that day. Wopshall Okay. Kogan Whether it’s peaches or apples or pears and it’s not a sign that would face the public right away. In fact it’s the back of the Pie Safe. Wopshall Okay, thank you. Kogan And our thoughts are to make really a Village Market where people come down and buy their fruits and vegetables and shop seven days a week outside of the Farmer’s Market. I mean, we don’t want to do anything to interfere with what goes on there socially and economically because I think it’s a neat thing for the Town on Saturday mornings. I’d just like for it to be like six days a week. Wopshall If the Farmer’s Market would stay open all day Saturday would you be – Kogan That would probably interfere with us and I probably, you know, and I don’t think The Friendly would like that, but you know we’d have to work through that. They could come over and may be set up in front of us or along side of us and I mean. It’s fruits and vegetables. My concern was Marsh coming in and telling me that they didn’t want us to open, but I guess they’re not here. Morical My only question is the one raised by Staff as it relates to the size of the – Kogan I think there’s a two-scale drawing of what the Staff had recommended 14.5 square feet. Yeah, I think, look at his over to your left. That’s basically 14.5 square feet of signage. Wopshall See that was my question. You have a sign for Main Street. That’s the sign you can’t see and that’s just for like it says, for advertising. Kogan We were hoping to get more signage, but we’ll do what you recommend. I mean we want to make it nice and we want to make it appealing. Morical What additional signage were you interested in? Page 8 of 19 Zionsville Board of Zoning Appeals April 9, 2013 Kogan Possibly some kind of some display sign on a daily basis if there were like a wagon with cantaloupes and apples piled up in it that said you know a dozen apples for $1.00 or two cantaloupes for 0.50 cents which I’m sure is not the case, but, you know, I’m reaching. Morical And I assume you’d put a sandwich board or something out closer to the sidewalk? Kogan I would hope that we did something on the property that was different than a sandwich board, maybe more appealing. Not that I’m against sandwich boards, but – because where the building’s going to be in relationship to the lot we need to induce people to walk back our path and see it and so I think it takes more than a sandwich board. It’s going to take some visual display of fruit and vegetables, maybe a wagon. Morical Wayne, is that something that needs to be contemplated by this request? DeLong I think just through your motion. They requested 24 feet of wall signs. I mean you could go ahead and indicate that you would be supportive of a certain size ground sign as a part of the approval. And, for example, you could say a 10 square foot ground sign and that would fit right into that 24 square foot package and that’s a 2 x 5 and 3 x something. Schanke Also portable, I would think, because it is seasonal. Kogan Yes. Schanke The building’s going to be removed. I don’t think we want to leave a permanent sign up there. Kogan I would say it would be removed on a daily basis. Schanke I had a couple of questions. I know I generally ask a lot but that’s not going to be. Looking at the snowy photographs who all walks and sits at all the chairs and things now. Kogan My mother did. Schanke Oh okay. I met her a couple of times. Yes, so it won’t be a problem. It’s not really a traffic flow through there so much. Kogan Well it will be because we would like to take out a section of the fence and put in a brick path that’s separate because they’re really two different parcels. My younger brother has inherited my mother’s home and he’s a part owner of this, but he’s not the sole owner of this lot and so I would like to and my older brother would like to have them as separate entities. They’re not together and so we’ll have a separate brick path in that matches the same motif as the houses on both sides and the same landscaping and plant structure. Page 9 of 19 Zionsville Board of Zoning Appeals April 9, 2013 Schanke So that the building looks like it will be offset just, never scaled the drawing, but just – Kogan Just a slight – Schanke Looking at the drawing, you know the property’s 22 feet wide, the building’s 10 feet wide, looks like you’re probably going to have about 8 feet or more on the one side – Kogan Yeah. Schanke And two or three, enough to mow on the other side. This drawing that we’ve got, we received this evening shows the door in the front. Kogan Well, I, I, the drawing is, the picture you have is an idea of what the materials would be for the outside of the building. The – Schanke Would the door be on the front? Kogan We wouldn’t, there would not be a door on the front or the side. It would be on the back for employees and to bring product in. Those are just open. They shutter open for sales and then close at night. Schanke They don’t, the public does not come in? Kogan No. Schanke Oh I’m sorry-- Wopshall The staff had a concern about outdoor display. You’re willing to limit your outdoor displays to the size of the building 240 square feet. DeLong What I was coming up there was we, we need to define whatever that magic number is as to what would be outdoor display. I mean it probably would be atypical to cover this entire parcel minus the square footage of the building with outdoor display for the materials or the produce. Kogan Yeah. DeLong That’s probably not the intention. Kogan No. DeLong But, it’s just coming up with a number and I was starting at 240 square feet. That’s not defining that is here and there. It’s just a, if someone were to ask how much can they display the answer would be the number and no matter where, and you could put it anywhere on the property. Page 10 of 19 Zionsville Board of Zoning Appeals April 9, 2013 Schanke You will run electrical power out to? Kogan No. Schanke Oh, you won’t? Kogan No, there will be no electricity, no water. Employees will have the opportunity to use facilities next door in my brother’s store, but that’s not public. It’s really kind of a clean thing. It goes up and it’s gone in November once the last pumpkin is sold or the mum. Schanke Charge your laptop and your cash register. Kogan The State can track us down. Schanke In Zionsville, it’s not a problem. Some cities it’s tough for some of the cashiers to make change unless the machine tells them how much to give back, but not in Zionsville anyway. Okay, is there anyone present that would wish to remonstrate, either speak in support of or remonstrate against this petition please stand up, come forward. Seeing none, last chance, does the Board have any, yes? Morical I have one further question. The Staff has recommended that we consider granting this variance for a limited period of time and has suggested that it extend until November 1, 2015. Mr. Kogan, are you amenable to that? Kogan You know what, the Staff has been great to work with and that was their recommendation and a three-year business model is enough for me. You know if we have a great summer I promise you you’ll see me back here in the fall that says I want to extend it three more years, but I’m enthusiastic for the opportunity. Morical Okay, great. Schanke Any other discussion? The Chair will entertain a motion. DeLong Steve, I do want to jump in. Schanke Sorry, sorry, go ahead. DeLong And certainly Staff is recommending approval – Schanke Oh we didn’t ask for the Staff – DeLong Staff is recommending approval of the petition. We just want to get on the record what the height of the building is? Kogan 10 feet at the front and it tapers down to 9 I think for the rain, the slope, but the face is 10 x 10 that faces Main Street. Page 11 of 19 Zionsville Board of Zoning Appeals April 9, 2013 DeLong All right, I just wanted that clarified for the record as part of the variance that’s illustrated since Day 1 from the petition being filed, but the building is 10 feet in height, but again staff is recommending approval subject to the items that have been discussed this evening and I’d happy to answer any questions. Schanke That does raise one other minor question. It will have a roof? Kogan Yes sir. We’ve got cheap help, but not that cheap of help. Schanke The Chair will still entertain a motion and no further comments from anyone? Morical I would move that Docket #2013-05-DSV, Design Standards Variance to allow for a 250 square foot produce stand with an outdoor display of merchandise on the property not to exceed 240 square feet of total area between the months of April and November as a primary use of the property without the provision for independent parking, potable water, and sanitary sewer while utilizing a 4 square foot wall sign facing Main Street, a 10.5 square foot wall sign facing south, and a 10-foot portable ground sign for property located at 185 South Main Street be approved based upon the findings in the Staff Report and to be effective for a period of time expiring on November 1, 2015. Parks Second. Schanke A motion has been made and seconded. Any further discussion? Wopshall Before we go further, Mr. Kogan are you agreeable with all those terms? Kogan Yes, sir. Wopshall Thank you. Schanke Call for the question. All those in favor of the motion as presented please say so by saying aye? All Aye. Schanke Opposed, none. The motion is carried unanimously. Kogan Thank you very much. Schanke Enjoy your produce stand. Kogan Come and see us. Morical I think we all will. Kogan Join the one-ton tomato club. Schanke We need to get Larry back. Page 12 of 19 Zionsville Board of Zoning Appeals April 9, 2013 DeLong And even without Larry here. Larry is aware of this next item. It’s not on your Agenda per se, but it was in your packet. The change in legal services that we are working through. We have a Letter of Engagement from Carol, from Drake Law, Carol Sparks Drake and the Town is amenable to this agreement. In fact you have not seen, I know Larry has seen the agreement and this goes back to where the Town has said we need to, we were going to amend the agreement anyway just because the Board of Zoning Appeals is incurring additional hearings per year. We have additional dollars that need to be spent towards transcription services and so we’re going to be looking at our budget for legal services and transcription, so that’s going to be increased regardless, but we’re looking to engage Carol as Drake Law on a going forward basis and so what this agreement has set up is for, would be for Larry to sign. Certainly looking for a, certainly Counsel can guide us as to what needs to be said to approve her services, if that’s just something that we do as a voice vote or I’ll stand back and – Schanke We can approve this, but I believe the Town Council would have to fund or can you move it around in your funds? That’s not of our concern. DeLong We will be going back to the Town Council in May to ask for an additional appropriation. That number will be in $6,500/$7,000 range, but the budget we have currently is sufficient to pay the costs that we’re incurring through September/October. Schanke I understand. DeLong So we’re in good shape. Schanke So what we need to do as a Board is to approve this? DeLong Well, I don’t want to task you to approve it without seeing it. Schanke Oh. I thought we had the other one from – Drake Essentially the terms of the letter that Wayne has just passed out to you track the terms of the Letter of Engagement you had with Lewis and Kappes. They pick up the same arrangement, but I’m certainly glad to answer any questions. Parks And I think what we need to be doing is to first address the letter from Lewis and Kappes itself wherein they want us to make a determination as to whether we stay with them or we transfer to Carol or to retain a new counsel. That’d be the first step and then the second step would then, depending on how we move there, is act on the letter we’ve seen from Drake Law. That would be our part of it and then the Plan Commission on Monday then will review this also because of we’re jointly involved with it. DeLong And Jay, I would want to point out that this letter was transmitted to Allan Rachles and Larry Mitchell and both of those individuals approved switching to Page 13 of 19 Zionsville Board of Zoning Appeals April 9, 2013 Carol, but yeah certainly getting on the record this group’s reaction would be a good thing. Parks Yeah, I was there when we talked about this with Allan Rachles. Morical I have one question for Carol before we move forward. First of all, Carol, you know, appreciate all of your hard work and have enjoyed working with you here. As you moved on to form your own law firm I just wanted to confirm that you have acquired malpractice insurance in the almost unbelievable circumstance where that might occur? Drake I can assure you I would not be sitting in this chair were I not covered, but that’s a very good due diligence question and when my insurance expired on March 31 with Lewis and Kappes my insurance for Drake Law, Carol Sparks Drake began on April 1, 2013. Morical That’s good to know, thank you. Drake Thank you. Good question. I hope I don’t need it, too. Schanke It looks to follow, as I recall the last engagement letter we had seems to track to it very well, so I see no problem with it, but does the Board have any discussion? Do we make a motion to – Drake I would recommend a motion, so yeah. Wopshall We can make several or at least two motions probably. Okay I’ll start with the first one. I recommend that we continue with Carol Sparks Drake and her new law firm, Drake Law, to represent the BZA in our legal matters. Drake And just for clarification Al, Wayne did sign that letter because he did not want to have a gap in services after talking with Mr. Rachles and Mr. Mitchell, so I would recommend the motion as ratifying his actions in signing that on your behalf. Wopshall So Mr. Mitchell signed – Drake No, Mr. DeLong signed the letter dated March 26. DeLong The version that you have is blank, but I did indeed sign it because Lewis Kappes wanted this back ASAP and again that goes back to seeking Larry Mitchell’s and Allan Rachles’ approval to carry on with Carol. Parks Then I would amend the motion by adding that we approve and authorize the signature of Wayne DeLong on our behalf to continue legal coverage during the interim until the new contract is fully signed. Schanke I think we have a motion. Page 14 of 19 Zionsville Board of Zoning Appeals April 9, 2013 Parks I know I’m amending that motion. Schanke Oh you’re amending it? Parks I amended that motion and so, but in order to, because we’re dealing with the Lewis and Kappes letter that relates to that letter. Schanke Al, do you accept the amendment? Wopshall Yes, I accept the amendment. Schanke Do we have a second? Morical Second. Schanke Any further discussion? Call for the question. All those in favor of the amendment as amended signify by saying aye? All Aye. Schanke Opposed? Same sign. The motion is carried unanimously. Two motions, Jay? Parks The second motion would be to, I would move that the Board of Zoning Appeals accept the letter of representation from Drake Law and the points and elements described therein as our legal counsel as we move forward for the rest of this year. Schanke Is there a second? Morical Second. Schanke Any further discussion? Call for the question. All those in favor signify by saying aye? All Aye. Schanke Opposed? Motion carries. Drake Thank you. Schanke I don’t see it on the Agenda, but we had the draft copy of the Wal-Mart findings of fact. Did we need to discuss those? Drake Yes, you do need to discuss and subject to the BZA’s decision whether they are ready to approve or not. Schanke Has everyone had a chance to review them? Any comments from the Board? Page 15 of 19 Zionsville Board of Zoning Appeals April 9, 2013 Morical I do have an additional set of comments. I tried to get to Carol before the meeting, but it was late this afternoon, so unfortunately didn’t capture her attention, but I have redlined the document and I can circulate that to the Board at this time for review. The comments primarily focus on just clarifying what I believe the Board’s findings are. That is, that in the circumstances identified, Wal-Mart had not met its burden of proof on a couple of the items, so I can circulate that for people to review. Schanke So they’ll have to be—we cannot approve them tonight. Am I correct that we cannot approve them tonight because that was a draft and we still have, we have support changes or can we review the changes and agree to the findings – Drake You could do either. I don’t know how extensive the findings are. If they are and folks are comfortable looking at them they can certainly approve them as drafted. We can accept the redline and go ahead and get signatures. Schanke Which would be my preference, but I haven’t seen the redline document. Yeah, it’s coming this way. Parks Basically what you were doing was identifying the comments that were in the original document that talked about our view that the remonstrators made a more convincing argument that you have removed those comments from that? Morical Uh, no. The previously circulated draft made two findings, two draft findings that the Board determined that the Wal-Mart requested variances would actually be injurious to the public health and I don’t think that we made the determination that they’re actually injurious, but I believe we made the determination that Wal- Mart did not prove that they are not injurious. Parks That the burden of proof had not been met. Morical Correct. Parks Okay. Morical And I brought along a clean copy, too. Schanke And then at the end of paragraph two you’re wishing to strike the last sentence, correct? Morical Correct. Schanke Do you feel it’s redundant or just – Morical Again, it makes a substantive finding or would make a substantive finding that we determined that the development as proposed by Wal-Mart will affect the residential areas in a substantially adverse manner. Where I believe our finding is that Wal-Mart failed to show that it would not. Page 16 of 19 Zionsville Board of Zoning Appeals April 9, 2013 Schanke Thank you. Morical And if everyone would like additional time to study this I’m certainly open to taking that time and making a decision at the next meeting. Drake As a point of clarification is that the conclusion of a majority of the Board that Wal-Mart, that you did not find that as proposed by Wal-Mart this will be injurious to public safety, health, morals and general welfare because that, I understand that’s what this stands now. I’m not sure from the Board if that was your conclusion. Morical I believe our conclusion was that Wal-Mart failed to meet its burden of proof that it was not injurious, but I’m open to everybody else’s comments. Schanke Well I recall there was significant remonstrance that indicated in prior instances where Wal-Mart had put in a similar size and hours of operation facility there were several instances of and negative effect on the environment, the health, the security, and all parts of it. Wal-Mart did present some data with reference to, I believe it was police runs, and remonstrators presented data on police runs and I remember the discussion, but clearly Wal-Mart did not give anything saying it was wrong. You know that they did not and they had the burden of proof and they did not, at least in my opinion and my thorough evaluation of the remonstrators, show that that did not, so they did not meet the burden of proving that they didn’t, so I understand what you’re saying. With that said, that’s, what you’re saying Greg is what I perceive in my mind that I was thinking when I was getting all the testimony and evaluating it, but I didn’t really see a problem with the way it was written either, but now that you bring it up I do understand your position on that. Wopshall I agree with what you both have said. We can go back and forth on this a long ways, but Wal-Mart in my opinion did not prove – Schanke That’s what I got, but I realize that the Wal-Mart petitioner did, the presenters did state that well sometimes they just put Wal-Mart down on the accident report or call report. I don’t believe the police are that, the law enforcement agencies are that sloppy, but put that into consideration, but still the minister, she presented a valid case of things that go on when stores open 24 hours a day. Again, the lady with all the crime statistics. I clearly think Wal-Mart did not show that this specific property would be any different than existing ones with its effect upon the community’s health and the other. Jay, any thoughts? Parks That’s why I was asking the question. From the changes that Greg made because of it basically focused solely on the lack of meeting the burden of proof on the part of Wal-Mart and that is, you know, if we look at what might be a, by taking out the statements that you took out relating to the--, we believe the remonstrators were right, they were wrong. It takes away one of their arguments in a legal battle that because really what it says is they didn’t meet their burden of proof and therefore their testimony was flawed and so they have nobody to blame except themselves in effect. Page 17 of 19 Zionsville Board of Zoning Appeals April 9, 2013 Morical Correct. They had a hurdle they needed to get over and they failed to get over that hurdle. Parks Yeah and basically in all three of the areas that we’re talking about. Injurious to public health, the value of the property, and the fact that disapproval would cause practical difficulties in the use of the property. None of which they proved with that or actually would be injurious. Morical In the first sentence of Section 2 we find, as drafted, it finds that Wal-Mart did meet one of its burdens, but other than that, the draft findings provide that they failed to meet any of the other burdens. Drake And, as revised then, these would turn upon Wal-Mart not meeting its burden of proof as opposed to an affirmative findings by the BZA that you were persuaded by the remonstrators. The only observation, Greg, the addition of the open- ended. I don’t think the 125, I think the over 60 was open-ended, but the 125 they identified how much they were going up to, so I would recommend that the redline addition of open-ended on the 125 be deleted. Morical I would be amenable to that. Schanke So to summarize I believe, and I don’t want to speak for the Board, but I believe I heard the Board accepts the redline draft with the exception of paragraph 1, title 1 the words ‘open-ended’ after the sentence that reads variance or ‘Wal-Mart failed to meet its burden proving its proposed variance to exceed 125,000 square feet for an integrated center.’ That ‘open-ended’ not be included. The other redlined deletions which is the last sentence of that section and the last sentence of Section 1 be deleted. You want to look at this again to see and if so we can make a motion that we accept the findings of fact for the Wal-Mart petition. I’m sorry, I forget the number right now. DeLong 2012-17A-DSV. Schanke Yes. 2012-17A-DSV. If it’s, if it’s—so, basically we’re eliminating the last sentence in those two paragraphs and not inserting the words ‘open-ended.’ Morical I move that we approve the findings of fact as revised and as described. Parks I’ll second that. Schanke I’m sorry. Was it seconded? Any further discussion? Call for the question. All those in favor of approving the motion as presented signify by saying aye? All Aye. Schanke There are no opposed. The motion carries unanimously. Page 18 of 19 Zionsville Board of Zoning Appeals April 9, 2013 Parks And what we probably ought to do is get a clean copy and have us stop by and sign, right? Drake I think we could sign the signature page this evening. It does start out with decision, so it’s a good break and I will provide Wayne yet this evening with a revised first few pages consistent with what you approved. Parks Super. DeLong And I will also circulate the findings from this evening’s petitions 2013-05-DSV. We have a single page ready for signature and we have, since there were three, the petitioner provided three sets of findings related, very specific findings related to his very specific request and there are three pages of those, so we’ve got five pages in total for your signature this evening. Schanke Where did that one page get to? I was curious. Okay, we’ll be passing the five findings of fact down the line. While we’re doing that, is there any other, I guess it would be new business, old business? The Agenda doesn’t list anything. DeLong We have no other business for your consideration this evening. Schanke Can we adjourn while we sign these? Drake Yes. Schanke The Chair will accept a motion to adjourn. Morical So moved. Wopshall Second. Schanke Seconded by Al. All those in favor signify by saying aye? All Aye. Schanke Opposed? None. The meeting’s adjourned. Page 19 of 19