Board of Zoning Appeals (BZA)

Town of Zionsville Board of Zoning Appeals November 11, 2014 Pledge of Allegiance was said and attendance was taken by the Secretary. Present: Greg Morical, Chairman, Al Wopshall, Larry Jones, John Wolff, and Bryan Traylor. Staff attending: Wayne DeLong, Carol Sparks Drake, attorney. A quorum is present. Morical Good evening and welcome to the November 11, 2014, Zionsville Board of Zoning Appeals meeting. The first item on our Agenda is the Pledge of Allegiance. All Pledge. Morical Thank you. The next item on our Agenda is attendance. DeLong Mr. Morical? Morical Present. DeLong Mr. Wopshall? Wopshall Present. DeLong Mr. Jones? Jones Present. DeLong Mr. Wolff? Wolff Present. DeLong Mr. Traylor? Traylor Present. Morical The next item on our Agenda, I’m going to add something, that is to recognize any Veterans we have in the audience tonight and to thank you for your service, and on that note, I believe we need to formally acknowledge and approve the fact that we’re meeting tonight in light of our rules which contemplate that this meeting would normally be scheduled for tomorrow, so I would entertain a motion to that effect. Wopshall I’d like to make a motion that we waive the Rules and meet tonight instead of tomorrow. Traylor Second. Zionsville Board of Zoning Appeals November 11, 2014 Morical Yes, thank you. All those in favor say aye? All Aye. Morical Any opposed? Motion carries. The next item on our Agenda is the approval of the October 14, 2014, meeting minutes. I’m advised by Staff that those are still in process, so we will need to take those under consideration at our December meeting. Next item is continuance requests, and I see none on the Agenda, so we will move to continued business which is Docket #2014-18-DSV. Would the petitioner please approach? State your name and address for the record. Price Good evening Mr. President, my name is Matt Price. I’m an attorney for Mr. Pierson this evening with an address of 10 West Market Street, Indianapolis, Indiana 46204 and 485 West Sycamore Street here in Zionsville, Indiana. As you mentioned this is the matter that was continued from the October 14 meeting. It is a development standards variance relative to a request to exceed the maximum lot coverage permissible for this particular dwelling district. An element of the continuance was to give Mr. Pierson and one of his neighbors, who is also present this evening, an opportunity to address a drainage concern that was raised during that meeting, and it is my understanding and what I’d like to represent and certainly his neighbor can speak for himself, I’d like to represent that the parties have reached an agreement in principle on improving the drainage issues and situations that exist between their properties. What we would propose to do this evening is to respectfully request that if the Board chooses to approve the variance, that would be made subject to a commitment for Mr. Pierson to construct certain drainage improvements as set forth in a proposal from Wesley’s Landscape and Lawn Care which outlines, we just, we really just got this within the last hour, but it outlines the principal features of the drainage improvements, indicates that Mr. Pierson will be paying for those improvements and identifies in general terms where those improvements would be located between the two properties. Morical Thank you Mr. Price. Any questions for the petitioner’s representative? ? Has the neighbor seen the proposal that you have in your hand? Price I’d be happy to give you, show it to you. You’re welcome to come up here and review and if we need to I’ll – it’s the second page. That’s the original proposal and then the clarified proposal is the second page. ? In addition is there any way that I could see the proposal? Morical Thank you, Mr. Price. Any further questions for the petitioner’s representative? Seeing none. Sir, as his neighbor would you like to speak tonight? A reminder, please state your name and address for the record. Page 2 of 11 Zionsville Board of Zoning Appeals November 11, 2014 Lawson Good evening Board Members and I [Michael Larson 1199 Winter Wood Court] too want to express my appreciation for anyone in the military here for today. I have a son-in-law who’s been in the military, and I appreciate the services that they perform. With respect to the issue at hand and the primary concern that ultimately brought this whole matter to your attention was the water runoff that we were experiencing on our property line, most notably in the areas that were affected by the improvements. We did, in fact, meet. We spoke. I met with the contractor this morning. He has recommended a solution. I read the solution, and I don’t have any problems with it. I don’t know if it’s going to work. I’ll be very honest. It’s not in place. We only reached that agreement to have that performed, so I don’t have any certainties. I did hear that there would be an agreement and understanding if the Board so moved to approve this that we would have some written agreement and I would want to assure that would occur. If the Board chooses not to grant the variance I would still want to insure that, you know, the water runoff does not continue to occur because I don’t know if that’s going to solve, you know, the problem. With regards to the variance itself, I’m not going to speak to the legalities of whether or not, you know, they had the proper permits and the proper approvals and whether or not this meets, you know, the standards set forth by this community. I’m going to let this Board decide that. I have questions. I have concerns as a neighbor, as the adjoining neighbor, but I will leave it to this distinguished Board to decide how this matter is going to be resolved. I hope that the water is taken care of, but that doesn’t speak to the issues at hand. Morical Assuming that the water issue, the runoff issue is addressed, do you have any concerns with them adding the deck as they’ve proposed? The deck itself. Lawson I have some concerns. Morical What are your concerns? Lawson Well, the concern is, quite honestly, the placement and the near proximity it is to our property. I know that there were several letters written by friends of the petitioner that say it’s in keeping with the neighborhood, but we’re the neighbor most directly affected. Looking at the aerials, you know, the property is angled in such a manner that it’s hard to sit in our backyard when there’s considerable activity across the fence, but I understand that they have the rights to install and enjoy, you know, their backyard. I just, you know, am a little concerned. Morical It appears from the pictures and the aerial that the deck area that we’re talking about is kind of back towards the corner of your house, is that – Lawson Correct. And in just the way that the property’s aligned any activity immediately rebounds right through our property. Wopshall Is it your impression that the proposed deck is in the same location and approximately the same size as the original one? Lawson It is in the same location. I cannot speak to size. Page 3 of 11 Zionsville Board of Zoning Appeals November 11, 2014 Wopshall Okay, so you had the deck in your view prior to this? Lawson I had a deck in my view prior to this. Wopshall Okay, thank you. Morical Was that deck present at the time? When did you purchase your property? Lawson I purchased the property in September 2009, as I recall. Morical Do you recall if the deck was there at that time? Lawson Yes the deck was there. There was a deck there. I do know that there was a deck there. I do know a deck was removed. Morical Okay, thank you. Jones I’d like to make a couple of comments about this and the drainage issues that seem to be at the root of it. If you take a look at Exhibit 3, sort of the site plan provided by Trinity Homes. This lot is somewhat unique, I wouldn’t call it unique, but as it is a corner lot it’s kind of interesting in the way Trinity has developed this subdivision because there’s two examples on the Exhibit 2. These corner lots don’t actually have a direct connection to the, what I would consider, typical rear drainage utility swale that, in a typical designed subdivision connects one lot to the other. Secondly, if you look at the grading provided on Exhibit 3 it shows that the high point of this lot is actually out at the street and that the entire site drains from the, from Huntington Woods Road back towards your lot, sir. I’m sorry, I can’t remember your name. The point I’m going at is that the original design of this subdivision and the natural flow of the land created a situation where any water or any drainage off of this site was going to flow across your property. Now, obviously Mr. Pierson has made some improvements and changes to the site but, you can’t make water run uphill, and it appears from what the platted subdivision plan shows is that the intent, prior to any development or any construction, is that drainage would flow across your property as it made its way to the drainage swale. Now we don’t have the entire site development plan here to see once it gets to the rear of your property if it was supposed to go, you know, east or west or where from there, but somebody, you know what we’re, I guess my concern is I hear these comments about drainage and the way this site is draining is the way it was designed and the way it was implemented and it appears that, you know, the house was placed on this site in just about the only suitable location. It doesn’t appear that it’s been set particularly far forward or far back. It seems like it’s given due consideration to both your home and then the other home on the other side as to place things in such a manner to not affect one or the other particularly greatly, so I mean I’m just, as I listen to these comments I’m very hard-pressed to see if there was any real other options, and I’m very hard-pressed to see if anything the petitioner’s done has really going against what the original layout of the site was intended to do. Page 4 of 11 Zionsville Board of Zoning Appeals November 11, 2014 Lawson May I reply sir? Jones Sure. Lawson Let me just say that we didn’t have any water problems prior to this improvement. I can tell you that the elevation has changed dramatically. If you were to view the property, there’s at least an 18 inch to 2 foot change in elevation within 3 feet of the property fence line. That property was leveled. A patio was put in, and then a bed was put in along the fence and that bed drops off 18 to 24 inches within a 3-foot span. Now I work a lot in the real estate industry and I’m quite aware of the EPA’s attention to storm water runoff. This jurisdiction recently implamented a storm water runoff program. I’m getting the storm water runoff. There are times because of the elevation change, both in the rear side and the front that I’ve got standing water. I didn’t have that before. There isimpervious surface there and I would agree with you sir if it were all landscaped, but this is impermeable surface, and as a consequence the water has got to go somewhere and right now that happens to be, because of the significant elevation change at my fence, it’s coming our direction. Jones Sir, are you amenable to support the petition for a variance if it’s noted that the petitioner perform the work as set forth in the proposal? Lawson As I said I’m not going to support nor recommend denial of the permit for the purpose for which it’s being presented to this Board by the engineering department. I’m not going to speak to the issue, and I’ll leave it up to this Board to determine whether or not there was a violation in exceeding the coverage and whether or not there was a violation in the permits. Morical Before us is the request for a variance which is the granting of an exception to the rule. I think, objectively, it’s clear that they would need an exception. Otherwise, they would not be permitted to have the deck and so we have various elements that we review and consider as part of that and so we’re interested to see whether or not, you raised a concern during the last meeting about drainage. Do you feel that if the granting of the variance was conditioned upon the work done per the outlined proposal that your concern would be addressed? Lawson My concern with the runoff would be addressed, yes. Morical Thank you very much. Any further questions? Okay, thank you very much sir. I appreciate it. Lawson Thank you. Morical Mr. Price do you have any further comments? Page 5 of 11 Zionsville Board of Zoning Appeals November 11, 2014 Price Just very briefly Mr. President. I just wanted to point out a couple of things which is the degree of the departure from the ordinance standard is fairly de minimis here. It’s 1.1 percent over what’s permitted. What causes the improvements on the property to exceed the maximum lot coverage includes the pool itself and as that relates to drainage that’s an improvement that by its nature collects water. It certainly is not like having a basketball court or, you know, an extension of the driveway or some other feature that would exacerbate a drainage issue and so we don’t believe that there has been any change in the grade or any change in the amount of impervious surface for the last 10 years at that site and to the extent that this has been brought to the Board’s attention, my client has, we think, made a very good faith effort to, at his own cost and on his own property, do what he can given the natural features of the property that Mr. Jones has pointed out to address the situation as it exists today, but we feel like this truly is a very technical variance for a very de minimis departure from the ordinance and given the nature of the improvements that are causing the need for this variance we think that’s also a mitigating factor in that it’s a swimming pool and not a surface or a structure that doesn’t itself hold water. And so for all those reasons we think that there is a basis for the variance here in the law and that the best way to address this situation in our view, respectfully, is to approve the variance subject to my client’s commitment to construct the improvements as set forth in the proposal. Morical Thank you Mr. Price. Any further questions for the petitioner’s representative? Wopshall If we deny this proposal what would the petitioner do to be within compliance? Would he take out the deck or minimize the pool? Price Well, we’ve talked about what our options are, frankly including withdrawing the variance because our view is that just, procedurally, our view is that that deck existed 10 years ago. It exists today in exactly the same amount of square feet. The pool which was the last improvement made to the backyard was approved by the Town of Zionsville apparently either missed during the permitting process or was not viewed to be in violation at that time and so we’ve considered either removing parts of the impervious stricture or even withdrawing the variance. Frankly, given the posture of the case and given the great efforts that my client had gone to up to this point to be a good neighbor, we felt like the best thing to do was to see this through and try to reach an agreement even though we’re doing that at some risk that it might be denied, but we think that that result would not recognize, I think, a couple of very strong mitigating factors that are present here that would not create a precedent for this Board with other decisions and I think upholds the spirit and intent of the maximum lot coverage requirement in the ordinance. I might also add, one of the things that’s very apparent from the aerial views of this property is that because it is kind of an irregularly shaped lot, the northwest front again has essentially two front yards. The property appears to have as much or more open space on it as any other property in the development, certainly the properties on either side of it which I think also is consistent with comments made by the Board with regard to the irregular, you know, shape of the property which is certainly contributing to the need for this variance. Page 6 of 11 Zionsville Board of Zoning Appeals November 11, 2014 Morical Thank you, Mr. Price. Any further questions for the petitioner’s representative? Jones Real quick. So this, was the site plan assembled 10 years ago with the deck and the pool for this and then it’s just finally getting completed in the last few years? Price No, the, and Mr. Pierson can correct me on the timeline if I get this wrong, but my understanding is that the deck in question was constructed first 10 years ago. The pool was then built in 2010, received an improvement location permit at that time and that subsequent to the construction of the pool the deck material was replaced, simply upgraded to some of that new kind of decking material that is very popular these days, but the footprint of it, the total surface area of it has not been any different with regard to the deck for 10 years, and the pool and the deck together have been on the property for over four years. Jones And the homeowner did go through all the proper channels to get the permits and the approvals, so it’s mostly a mathematical issue somewhere down the line? Price It is and Mr. Jones to be, to make sure that we’re representing ourselves completely accurately, the deck, the original deck was not permitted, but when the pool was constructed representatives from the Town came onsite on a number of occasions and consulted with Mr. Pierson about the limitations and parameters for his swimming pool. He followed their advice, got the permit for the pool at that time and believed he was in compliance at that time with all of the building standards relative to his property. Certainly was not notified at that time that the construction of the pool with the dimensions that he was proposing and got permitted would result in him being in violation or require the removal of any improvements. Wopshall So this John Merritt, to the best of your understanding, approved for the Town of Zionsville the pool and the deck and everything on the property that’s – Price Yeah, I mean and to be clear about that, Mr. Merritt was the representative from the Town that consulted with Mr. Pierson. I think, he is not to my knowledge, I do not know who with the Town actually physically issued the permit, but the permit was issued for the pool in 2010 and built in accordance. There’s no indication that the pool was built in any other manner than as it was permitted. And so in some ways, you know, I think it’s apparent to the Board we’re in a tough spot. I mean we’re not in front of the Board with this de minimis departure from the ordinance, but nevertheless we’re not disputing that there is a 1.1 percent overage, we’re just wrestling with how best to address it and being in front of the Board and with the dialogue that took place last month we believe that in the spirit of good faith and in following through with what we started that the best thing to do was try to reach accord with the neighbor and deal with the drainage issue which is really the predominant issue here. Deal with that issue as best we can. We think we’ve made a solid good faith proposal that will help, hopefully, push this matter over the top. Page 7 of 11 Zionsville Board of Zoning Appeals November 11, 2014 Morical Thank you Mr. Price. Any further questions? Thank you very much. Staff Report. DeLong Thank you. Staff has nothing further to add. Certainly the testimony this evening I believe summarizes fairly accurately what you heard last month and certainly the direction that was articulated last month to bring this forward again this month. Certainly Staff encourages good neighbor practices and certainly desires to see this worked out as much as anyone. While this is a very minor deviation from the ordinance, it certainly sounds like something that can be worked out. That concludes my comments. Morical So to summarize, Staff is in support of the variance request with the requirement that it be conditioned upon the petitioner completing the work as noted in the proposal. DeLong That would be Staff’s position. We certainly want to encourage, this is a very minor deviation. It sounds like there’s been a lot of back and forth with the petitioner and the neighbor about this and certainly that’s a good discussion to have. I certainly encourage that type of dialogue and again, while this is a deviation from the ordinance, we have some mitigating factors here that I think that nobody may have all the answers to. Morical Thank you Wayne. Any questions for Staff? If none, I would entertain a motion. Wolff Actually I do have one question. What is, sorry I should know this, but what is the setback required, and I got to get my bearings here, well let’s just look at Exhibit 3 and call the top of the page north, what is the setback on the west side required there? DeLong Yeah I do not have the R-SF-2 district table in front of me to know that standard offhand. I do not know that as being an issue. Maybe Carol’s got that table here we can reference. Thank you. Wopshall There’s 21 feet on both sides on the picture. DeLong Side yard shall be no less than 12 feet. Wolff Yeah, it’s difficult, the drawing does appear to be reasonable to scale and I think well within 12 feet, so I know it was really a point of contention but the neighbor did discuss that the location and the proximity of the deck was a bit of a concern. It doesn’t appear that that is a variance issue. DeLong But I would point out that these lots were established prior to our current ordinance, and this current ordinance I’m quoting is from circa 2000. Certainly it’s, while I can give the current zoning ordinance information, we need to look back at the original setback. That would give us the – Wopshall I live in the Trinity neighborhood and a similar situation built about the same time and our side setback is 10 feet. Page 8 of 11 Zionsville Board of Zoning Appeals November 11, 2014 Morical Thank you Al. Any further questions for Staff? Hearing none, I would entertain a motion. Jones I’ll make a motion. I move that Docket #2014-18-DSV, Designs Standards Variance, to increase the lot coverage allowance to 21.1 percent in the RSF-2 single family residential district for the property located at 1209 Winter Wood Court be approved as filed with the condition of adding the what we’ll call it is the perforated drain tile along the property edge as an attempt to rectify the drainage situation be approved as presented. Morical Is there a second? Wopshall I second. Morical Any discussion? All those in favor please say aye. All Aye. Morical Any opposed? Motion passes. Thank you very much. The next item on our Agenda is 2014-20-DSV, Sims Lohman. Please approach and state your name and address for the record. Schrage Good evening, my name is Brad Schrage with American Structurepoint. Our address is 7260 Shadeland Station, Indianapolis. We are here tonight to present a variance request for the setbacks at the Sims Lohman parcel located at 7113 South Mayflower Park Drive. Sims Lohman is looking to do a parking expansion on their parcel to accommodate their employees and the only direction that is really available is out towards Mayflower Park Drive. The current zoning ordinance calls for 20-foot setbacks from any sort of improvements along Mayflower Park Drive and then also a 20-foot setback from the northern property line. The proposed plan provides for 4-foot setback from Mayflower Park Drive and a 5-foot setback from the northern property line. As has been indicated in the Staff Report, prior to this area being annexed the setbacks for non-building improvements would have been 5 feet in this area and so our, this variance is more in accordance with where this would have aligned prior to annexation. The Staff Report also indicates they would be in support of the variance provided that a hedgerow is installed along the western property line to provide a buffer, a further buffer between the Mayflower Park Drive and the parking lot and we are, we do not mind doing that or providing that hedgerow and can update the plans accordingly. I’ll be happy to take any questions there may be. Morical Thank you. Are there any questions for the petitioner? Wopshall Would there be any local park restrictions against the 5-foot setback in the front? Schrage Would there be any – Wopshall Mayflower Park, do they have any restrictions separate from city ordinances? Page 9 of 11 Zionsville Board of Zoning Appeals November 11, 2014 Schrage Not that I’m aware of. Wopshall Thank you. Morical Are the parking spots that you intend to construct for passenger vehicles or – Schrage That is correct. Morical Any further questions for the petitioner? Thank you very much. Are there any remonstrators here tonight? Seeing none, I would ask for the Staff Report. DeLong Thank you. As indicated Staff is supportive of the petition as filed with the provision that a hedgerow be provided and that is to serve to mitigate headlights from meandering off the property onto the property to the west. Again, Staff is recommending approval of the petition as filed with that one condition, and I’d be happy to answer any questions. Morical Wayne, would installing that hedgerow require an encroachment agreement with the Street Department? DeLong During the permitting process for the parking lot we would handle that encroachment agreement at that time. Morical Okay. DeLong And that is if the landscaping does truly encroach. Morical Okay thank you. Any further questions for Staff? Hearing none, I would entertain a motion. Traylor I’ll make a motion. I move that Docket #2014-20-DSV, design standards variance, in the urban I-2 general industrial zoning district to provide for a minimum 5 foot side yard setback and a minimum 4 foot, front yard setback be approved as presented with the condition of the hedgerow being installed. Morical Thank you. Is there a second? Jones Second. Morical All those in favor please say aye. All Aye. Morical Any opposed? Motion passes. Thank you very much. And this concludes the November 11, 2014 – hold on one second. Thank you Carol. So as part of this month’s packet we had a set of dates for our 2015 meetings. Has everyone had the opportunity to review those proposed dates? Any items anybody wishes to Page 10 of 11 Zionsville Board of Zoning Appeals November 11, 2014 discuss? If none, I would entertain a motion for us to approve these as our official meeting dates in 2015. Wplff I’ll make a motion to approve the dates as presented. Morical Is there a second? Wopshall Second. Morical All those in favor please say aye. All Aye. Morical Any opposed? Motion carries. Thank you. Okay, so this concludes the meeting of the Board of Zoning Appeals. Thank you very much. Page 11 of 11