- Good evening, everyone. I would like to call to order the July meeting of the Board of Zoning Appeals.
- Tammy, to get us started, would you please call the roll? Sure thing. Margaret Clements? Here.
- Skip Daly? Here. Pamela Davidson? Here. Guy Loftman? Jeff Morris? Here. We have four people in person,
- and that's a quorum. Could you please introduce the evidence for tonight? Sure.
- I would like to introduce the following items into the evidence. The Monroe County Development Ordinance
- as adopted and amended. The Monroe County Comprehensive Plan as adopted and amended. The Monroe County
- Board of Zoning Appeals, Rules of Procedure as adopted and amended. And the cases that were legally
- advertised and scheduled for hearing on tonight's agenda. I move that we introduce the evidence as you've
- just enumerated. Great. I will second.
- Motion and a second to approve the introduction of evidence. Jeff Morris. Yes. Pamela Davidson.
- Susan Donovan. Is now joining. Yes. Skip Daly. Yes. Margaret Clements. Yes. Motion passes four to zero.
- For our agenda tonight, we have approval of minutes from April and May of 2026, but those are not in
- our SharePoint folder. So could I get approval of the agenda with the line approval of minutes stricken?
- I would like to make such a motion that we approve tonight's agenda absent the approval of the minutes.
- Second. I second that. All right, there's been a motion and a second to approve the agenda as listed
- and noticed minus the approval of the minutes. Skip Daley? Yes. Pamela Davidson? Yes. Jeff Morris? Yes.
- Margaret Clements? Yes. Motion carries four to zero.
- Moving on to administrative business, item number one is the court ordered findings for the Benford
- Recycling CDU-21-3 under 53C06-2110-MI-002052. And is that Mr. Schilling's agenda item? That is 100%
- Mr. Schilling's thing. And he was here a second ago. Stephen Donovan is now exiting.
- I would like to move that we amend tonight's agenda and move Bedford Recycling CDU discussion to the
- final item on the agenda. Second. Motion and a second. Motion and a second to amend the agenda to move
- the Bedford Recycling Admin to the end of the agenda. Let's go. Margaret Clements? Yes. Skip Daly? Yes.
- Pam? Yes. Jeff Morris?
- All right, motion carries four to zero. Okay, so the first item tonight under Old Business is VAR-25-52A.
- This is the Donovan Buildable Area Special Floodplain Hazard Area, various to Chapter 813. So before
- we get into this, I want to explain to the
- the members of the public here how we've been handling these meetings. If there is a petition that staff
- recommend approval for we will ask if there are any members of the public who are against the petition
- and if there are not then we will expedite the conversation and move toward a motion to help speed things
- up to get us through the agenda a little bit quicker. So the first item on the agenda has conditions
- associated with the approval. So do we have the petitioner here in the room with us tonight for the
- first petition?
- or do we have them online? If so, please- They are online. Steven Donovan. Mr. Donovan, if you could
- raise your virtual hand if tech services could unmute you. It looks like you're unmuted, Mr. Donovan.
- Could you raise your right hand and do you swear to tell the truth, the whole truth and nothing but
- the truth? Yes, sir.
- Okay, are you okay with the condition that staff is recommending in tonight's packet, which is to provide
- as-built elevations of riprap gravel parking area to confirm the excavation of earth and replacement
- of gravel following the submitted plans dated June 24th of 2026, or do you have concerns with that condition?
- I have no concerns. I am in agreeance with the recommendations
- Okay, and to clarify, you have no concerns? I have no concerns. Okay, thank you. So do any members of
- the public wish to speak against this first petition? If so, please raise your hand if you're here in
- the room or if you're online and wish to speak against this, please raise your virtual hand. Okay, seeing
- no one, I will come back to members of the Board of Zoning Appeals. We'll make a motion that we call
- the question
- on variance 25-52A for a directed verdict. I second that motion. Okay, so we have a motion to call the
- question. This isn't a motion to approve. This is just to call the question. There's been a motion to
- call the question and a second. Margaret Clements? Yes. Skip Daly? Yes. Jeff Morris? Yes. Pamela Davidson?
- Yes. Motion carries four to zero.
- I would like to motion at this point that we approve variance 25-52A with the stated conditions. I second
- that motion. Right, there's been a motion and a second to approve VAR-25-52A, the Donovan buildable
- area special flood hazard area variance to chapter 813.
- This is to allow a 3,000 square foot gravel area to remain in the special flood hazard area with a specific
- condition that they provide as built elevations of the riprap gravel parking area to confirm the excavation
- of earth and replacement of gravel followed the submitted plans that are dated June 24th, 2026. I'll
- go ahead and call the roll on that one. Pamela Davidson? Yes. Jeff Morris? Yes.
- Skip Daly? Yes. Margaret Clements? Yes. And that motion carries four to zero. Okay, thank you Mr. Donovan.
- And Mr. Schilling, we were lonely without you, so we modified the agenda to move Bedford Recycling to
- the end of the agenda tonight. You're welcome.
- Okay, moving on to item number two, the McWhorter Accessory Dwelling Unit has been withdrawn by staff.
- So that wraps up old business. So we'll move on to new business. The first item is VAR-26-19. This is
- the Sullivan Maximum Impervious Cover Variance to Chapter 805. So this is another one that staff recommend
- approval on and there are no conditions associated with the approval. So do we have anyone here in the
- room who wishes to speak against this petition?
- If you wish to speak against this petition, please raise your virtual hand. Seeing no one, we'll come
- back to the members of the Board of Zoning Appeals. Should we ask the petitioner if they're in the room,
- if they want to make any comment or anything? Should we just ask or not? There were no conditions. Yes.
- I just wondered if they showed up if they were anxious to say something. Maybe not.
- I will make a motion to call the question on variance 26-19 for a directed verdict. I'll second that.
- All right, there's been a motion and a second to call the question. Correct? Correct. All right, for
- VAR-26-19. Margaret Clements? Yes. Skip Daly?
- Yes. Jeff Morris? Yes. Pamela Davidson? Yes. Motion carries four to zero. Chair, I would like to make
- a motion based on staff's recommendation for approval and the fact that it meets the conditions to approve
- variance 26-19. May I add that practical difficulties have been shown? May I add that? Please do.
- and I would like to second that motion. All right, there's been a motion and a second to approve the
- petition VAR-26-19, Sullivan maximum impervious cover chapter 805, based on the findings of fact, and
- the fact that there are practical difficulties that have been demonstrated for this petition.
- Go ahead and call the roll. Skip Daley? Yes. Jeff Morris? Yes. Pamela Davidson? Yes. Margaret Clements?
- Yes. Motion carries four to zero. OK. The next item on the agenda is VAR-26-21. This is the Chamness
- Eco Area 2 15% slope encroachment to Chapter 823. And this one has a recommendation of denial from staff.
- So we'll go ahead and turn to Mr. Brown to go through the presentation tonight. Thank you.
- The purpose of this petition is that the petitioner is proposing to convert an existing residence on
- the property into a detached accessory dwelling unit, as well as establish a new larger single-family
- residence on the property. However, during the review of the residential construction predesign,
- PILP 187, it was found that the petitioners had already begun to clear the area where the proposed home
- will be located. This area is in the environmental constraints overlay area two,
- and has sustained the removal of vegetarian vegetation in areas of 15% slope or greater. Hence, this
- variance petition is required. The petitioner's representative has communicated via the letter to the
- Board of Zoning Appeals, which is exhibit three in the packet, that the soil was not disturbed and that
- the stumps were left in place for the trees that were removed. They have also communicated that they
- are willing to restore the damaged forest.
- And here is the discussion. The subject property does not meet one of the four requirements for properties
- in area two of the environmental constraints overlay as listed in chapter 823-5A. And that is number
- two, which is there shall be no disturbance of natural vegetation beyond the 15% slope line. And here
- are just images of the property showing the location as well as the zoning map. It is on the
- order of the county as well as the comprehensive plan and site conditions map which demonstrates slope
- the latter of which demonstrates slope of over 15 percent and here are some images of the property the
- image on the left shows the existing home that's proposed to be converted into a detached accessory
- dwelling unit the image on the right shows a path leading to the clearing where the new home will be
- placed and these images show
- the site in question, as well as the stumps from the removed trees. The same, the pictures here show
- the same. Here's a letter to the Board of Zoning Appeals from the petitioner. As well as the certified
- plot plan that was provided.
- So in regards to VAR-26-21, staff recommends denial of the forested tree, as the removal of the forested
- tree canopy would be injurious to public health, safety, and general welfare of the community, and practical
- difficulties have not been demonstrated by the petitioner. In order to become compliant, as this is
- after the fact, staff recommends that the property owner be required to submit and follow one
- A remediation plan designed by a professional utilizing the plant list in Chapter 816 of the County
- Development Ordinance, which reflects the landscaping and approval list of plantings. Two, a licensed
- professional is to delineate on-site the 15% slope line. And three, stabilize any slopes necessary to
- prevent further erosion and sediment loss. If action is avoided by the property owner, then an enforcement
- case will be opened, which may eventually allow the county
- to pursue fines and or legal action. And I will take any questions. There's the Board of Zoning Appeals.
- Now we're after the testimony. I think we could go ahead and turn to the petitioner and take comments
- from the petitioner. After that. OK. Do we have a petitioner here in the room? Sir, if you'd like to
- come to the podium and sign your name, I'll swear you in. And then you'll have 15 minutes to speak.
- Thanks. Do you want to swear in too? Come on up. If you could go ahead and sign your name. Is there
- a piece of paper on the podium there?
- While she's signing in, if you could raise your right hand and state your name. And do you swear to
- tell the truth, the whole truth and nothing but the truth? I do. Charles Chamness. Thank you. Then ma'am,
- if you could raise your right hand, do you swear to tell the truth, the whole truth and nothing but
- the truth? I do. And your name is? Bridget. Okay, thank you. So thank you for having us here to talk
- about this variance. My name is Chuck Chamness. And so my wife, Bridget, as you've just met, but I'm
- from Bloomington.
- I grew up here on the east side. My mom taught school at Rogers in third grade for decades. My dad was
- a businessman. I graduated from Bloomington North, graduated from IU. We build our careers elsewhere,
- but it's never changed that I've considered Bloomington a home. And this is our opportunity to move
- back here. In 2019, we bought about 80 acres on Sewell Road. At the time, voters Morgan Monroe
- and Yellowwoods, we'll talk about a little bit more later,
- It had no utilities, no address. There was nothing on it. In 2020, we built a barn. You saw it in the
- pictures. Then with a friend of mine who's a local carpenter, we finished one end of the barn into the
- ADU. We talked about the one-bedroom apartment, which between Dave, the carpenter, and I, we went through
- the zoning and not zoning. Well, I guess zoning, site approval, building process without any problems.
- We also built a septic field, which was good for four bedrooms. So one bedroom counts as the barn. The
- other three bedrooms will be the home we intend to build. So we'd like to build this home. We'll relocate
- from Indianapolis, where we've lived for the last few decades. It'll be our home. It's not a vacation
- property. It's not a rental. It's where we intend to live and be residents of Bloomington, be voters
- and taxpayers.
- As you've seen, we made a mistake as we were on top of this hill or we'd intended to build the home
- close to the septic field because I didn't know. I knew that the slope restrictions were an important
- factor in the building and we're, you know, putting in foundations and building structures, but I did
- not know they applied to trees and vegetation. So we took out a handful of trees, as Bridget will talk
- about a bit, and also some vegetation. That was our mistake. We own it.
- our own ignorance of the rules. So with that, I think I'll introduce Bridget to give a little more context.
- As Chuck said, we purchased this parcel in 2019, and it had previously been logged twice, I think most
- recently in 2014.
- As a consequence, improvements were needed. We worked with the state forester on a management plan that
- we finalized in 2022, and we also retained a private forester in 2023 to give us a more detailed plan.
- We enrolled 77 of the 80 acres in the Indiana Classified Forest Program. Both of the plans note the
- damage from the logging
- including lots of junk trees and invasives. We have been working to implement the plans currently focusing
- on restoring the on timberland improvement and then removing invasives, multi-flora rows and the bush
- honeysuckle being particularly prevalent.
- One of the reasons we purchased the parcel in addition to its proximity to Bloomington is because of
- its unique position in the corner of the two state forests, Yellowwood and Morgan Monroe. And we consider
- ourselves to have an obligation to restore that land demonstrated by what we've done long before we
- move you know trying to move forward with the house uh relocating to bloomington and our recent retirements
- from full-time employment should give us even more time to dedicate to this project we removed the trees
- responsibly even though we were not aware of the slope line restrictions the soil was not disturbed
- we left all the stumps in place and the debris was mulched on site the trees
- below the slope line were low value offsite pine species, were mostly low value offsite pine species
- near the end of life. Several were storm damaged. As you can see, our proactive measures were successful.
- There's been no erosion despite Bloomington having record precipitation this spring. Chuck and I want
- to assure the board that we have respect
- for the slope setback lines. And in my case, that awareness is in part due to my professional background,
- having served as the general counsel of the US House of Representatives committee that has jurisdiction
- over housing policy in Washington DC prior to moving to Indiana. We hope you will weigh an error committed
- in good faith
- and with lack of awareness against our stewardship record and future plans. And respectfully request
- that you approve our requests for the variance. Our surveyor, Scott Pardo, is here to answer any technical
- questions. And we just want to thank you for your time and consideration.
- Thank you. Do any members of the Board of Zoning Appeals have questions for the petitioners?
- Welcome to town. I'm unaware of the Indiana Classified Forest Program. What does that mean for the bulk
- amount of your acreage? Basically, it's a program you opt into. As the president said, we have 77 of
- the 80 acres in it. It gives certain tax advantages.
- for it being a protected forest where no building can take place. So it sets it aside for nothing but
- the forest for the entire period that you have the forest in the program. So to the extent it would
- ever be some future owner might decide to take it out of the program, they would have to pay back property
- taxes. You know, we've been spending it for five years. So whatever 20 years from now, 25 years of back
- property taxes, which pretty much locks it up as a forest
- that's where the home will be located permanently. Oh, sounds great. Thank you for doing that. My second
- question is somewhere in the report, it said the area that is cleared is not where the primary residents
- will be located. Is that true? Did I read that correctly? No, it's where the home will be located. OK,
- that makes a lot more sense as to why you would clear that. Thank you so much. Any other questions for
- the petitioners?
- Thank you, you're welcome to have a seat and we'll turn to members of the public now. So is there anyone
- in here in the room who wishes to speak in favor of this petition? If so, you're welcome to come to
- the podium. Okay. If you could sign in and then raise your right hand, I'll swear you in.
- state your name for us. Scott Harding. Do you swear to tell the truth, the whole truth and nothing but
- the truth? Okay, you'll have three minutes. And tech services, could we get a clock in Teams for three
- minutes? Thank you. I'm also their neighbor. Just so happens that I'm lane servile to you. So I've been
- trying to help them out as we go. But I met Chuck a couple years ago when we did the type E subdivision
- on the lot line adjustment.
- You know, when I went out there to meet with him about placement of the house, I saw the trees removed
- and I thought he took good care of it. He used a forestry mulcher that put mulch back on the slope.
- So I had no problem with what he did really. And then we staked the 15% line. And that's when I noticed,
- you know, we need to move the house back. And I've always been told that you can remove the trees, but
- not the stems.
- And you know I've done this a long time here in Monroe County and that's always been the case that I
- thought. But I didn't know about the vegetation removal over the 15% line either. I always thought it
- was you can remove the trees but not the stems because they log all the time and leave the stems so.
- And like I said, I've gotten the no check and his wife over the years and
- I hope you approve the petition. Thank you. Thank you, sir. Do we have anybody else here in the room
- who wishes to speak in favor? If so, please come to the podium. Anyone who wishes to speak in favor,
- please raise your virtual hand. Do we have anyone in the room who wishes to speak against this petition?
- If so, please come to the podium. Anyone online who wishes to speak against this petition, please raise
- your virtual hand.
- Seeing no one, we will close public comment then and come back to the members of the Board of Zoning
- Appeals. Yeah, Mr. Daley. Thank you. Thank you, Mr. Chair. I have a question for Mr. Brown. Our petitioners
- spent their testimony time explaining, apologizing for the ignorance of mistake that they made of not
- getting permission to cut those down.
- describing how responsibly that they did remove that. But my question is, you have listed on here that
- there are, there should be no disturbance of natural vegetation beyond the 15% slope line. Is there continued
- Was it just the removal of those trees or is there a continuous issue with this 15 degree slope? So
- in regards to the disturbance of natural vegetation, cutting down trees does count even though the stump's
- storming. Okay, but does the building or any future construction violate that 15, in the plan, violate
- that 15 degree slope? Is there any other issue
- moving forward in addition to already having cut those trees down. The soil has remained undisturbed
- as far as we can tell. Though I do believe that the petitioner said during their testimony, and please
- feel free to correct me on this, that part of the building will not be in the 15% slope. Okay, so in
- your opinion, will any of the future building for
- that plan, are we talking about the only matter being something that's already happened? Yes,
- that's correct. The matter is something that's already happened. This is an after-the-fact variance,
- effectively. I just want to be clear on that fact. So the matter that we're deciding is something that's
- already done. Correct. So it's an interesting one in that
- If you approve it, it allows them to have this vista view that we don't let anybody else really get
- to have in Monroe County that's in the Lake Shed watershed, right? So by denying it, you kind of are
- requiring that they do this restoration plan and that they do restore the vegetation, which should include
- shrubs, plants, trees. All of that is protected. And their certified plot plan, which is in the packet,
- Um, we reviewed it, the zoning inspector reviewed it, and it does appear that it meets the slope criteria
- and that the, there should not be any part of that structure within the restricted slopes, but we do
- show, um, that there was vegetation that was preemptively removed prior to that submission. All right.
- And assuming this were to get denied, there's no, we're not a sanctioning body. We don't, we can't impose
- any penalty or,
- fine, they would just have to make the trees repair. Correct. And I've definitely had a couple of other
- these that have come before the BCA before, and I've had to do restoration plans. We don't have a set
- set of specifications in there, but we do require that they follow a professional that that is gets
- involved and can like make recommendations for that specific site. One quick follow up if I may, Mr. Chair.
- Mr. Schilling, is there a precedent on this in terms of a similar situation where I was asking for a
- mea culpa after the fact in terms of something that, if it's a building that was built, we've ordered
- people to remove that building. In this case, it was something that was removed that can't, I mean,
- is there a precedent
- comes to mind? Okay, thank you. May I ask, I don't know how large the footprint of that house will be,
- but I read that they removed nine trees and we can certainly readily understand that some of those were
- undoubtedly storm damaged, which they just testified to that being so. So my question is,
- Do they have enough available footprint with the house to do enough landscaping and tree replanting
- to meet restoration so they can have both of those things? Does it need to be that particular plot or
- can it be? So we're requesting that they delineate the 15% slope on site, which will then confirm that
- their structure of their footprint, their house is going to
- stay within that boundary. But then also, on the other side of that, that is where we are requesting
- that a professional come out and propose a restoration plan for that slope, something that would fit
- within that ecosystem there. So they could have the house that they are hoping to build and also achieve
- restoration, which we seek. Correct. Which we are interested in studying, I should say.
- the house at the moment, even though it meets all of our criteria, because there is an outstanding violation.
- And it's this one right here. This one, yeah. Gotcha. OK, that's very helpful. I just am going to just
- repeat something I heard in the testimony, which was that that land had been logged before. So it had
- been previously logged. So that matters to me because
- because this isn't the first time that land seems. And it probably also means it was not old growth.
- That's right. It was younger than that. That's right. Probably. This is just a unique situation.
- It is unique. Yes. Where the building doesn't violate the code, a previous act violates the code. And
- I'm inclined to
- trust the testimony, which displayed a great deal of integrity for the environment. So if someone were
- to support this, I would gladly second it. Well, I'd like to make a motion then, if it's okay.
- First of all, I find it
- reassuring that so much of the land is being put into Forest Reserve and that you're also, according
- to your testimony, you are taking care of invasive species, which is important to everyone throughout
- the community and to the management of our forests. So with that in mind, on VAR-26-21,
- for the environmental constraints overlay area two at a 15% slope encroachment request variance from
- chapter 823 concerning a property at 1405 North Sewell Road. I would like to recommend approval and
- move that we approve this and I believe that
- they're making their own remediation plan by committing so much of their extra acreage to forest reserve
- and that they will they already have consulted with licensed professionals to delineate what it is that
- has been done on the property and and I know that according to their testimony that
- further erosion has not taken place due to, I guess, their management plan, despite all these heavy
- storms that we've had. So because of those reasons, I move approval on this request for a variance.
- I would love to second that. Would you consider adding
- the staff recommendation of the stabilizing the slopes necessary to prevent further erosion even though?
- Sure. Yes. So in my motion, we request the petitioners to stabilize any slopes necessary to prevent
- further erosion and sediment loss. I will second that.
- We have a motion in a second. Ms. Biermann's finishing notes over there. Should we ask if that's acceptable
- to them, if they're willing to do that? Or choice? Yeah. All right. There's been a motion and a second
- to approve VAR-26-21, the Chamness Eco Area 2 15% slope encroachment for the removal of vegetation.
- I'll go ahead and call the rule. Oh, and with the condition number three of the staff report that they
- stabilize any slopes necessary to prevent further erosion and sediment loss. Margaret Clements? Yes.
- Skip Daley? Yes. Jeff Morris? Yes. Pamela Davidson? Yes. Carries four to zero. Thank you, Mr. and Mrs.
- Chamness for sharing your case with us tonight. Thanks again for the forest.
- Moving on to the next four petitions, these are VAR-26-22A, B, C, and D. This is the upchurch maximum
- height variance to chapter 805. The upchurch eco area two, one acre contiguous buildable area varies
- to chapter 823. The upchurch eco area two, 15% slope encroachment varies to chapter 823. And the upchurch
- eco area two, residential density maximum varies to chapter 823.
- I believe that all four of these have a recommendation of approval from staff as well. So do we have
- any members here in the room who wish to speak against this petition? If so, please raise your hand.
- Or if you're online and wish to speak against this petition, please raise your virtual hand.
- Seeing no one, we will come back to the Board of Zoning Appeals. Mr. Chair, at this time, I'd like to
- make a motion to
- call the question for objective verdict on this matter. Variance is 26-22, Alpha, Bravo, Charlie,
- and Delta. All right, there's been a motion and a second to call the question. Margaret Clements? Yes.
- Skip Haley? Yes. Jeff Morris? Yes. Pamela Davidson? Yes.
- Motion carries four to zero. Do we have a motion to approve these four variances? Yes, Mr. Chair, I
- will make a motion based on staff approval recommendations and the finding of practical difficulties
- being demonstrated and conditions in our code being met that
- We approve with the recommended conditions in the packet for variances 26-22 alpha through delta. Do
- we have a second? I'll second that. All right, there's been a motion and a second.
- to approve VAR-26-22A, B, C, and D. This is the upchurch maximum height to chapter 805. The upchurch
- eco area two variances to chapter 823 for the one acre contiguous buildable area, the 15% slope encroachment
- and the residential density maximum. I'll go ahead and call the roll. Margaret Clements? Yes. Skip Haley?
- Yes. Jeff Morris? Yes. Pamela Davidson?
- Yes. Motion carries four to zero.
- I'm going to excuse myself. You have a quorum to continue while I go down and feed the meter. I hope
- I don't have a ticket on my car. But we'll see. Can you continue without the only right now? OK, moving
- on to the next petition. This one's VAR-26-23. And this is the Olavarieta. And I apologize
- if I'm mispronouncing that. Eco Area 2, residential density maximum varies to Chapter 823.
- And again, we have staff recommendation for approval. So do we have anyone here in the room who wishes
- to speak against this petition? If so, please come to the podium. Or if you're online and wish to speak
- against this petition, please raise your virtual hand. Seeing no one, I'll come back to the board to
- call the question. Mr. Chair.
- If I may, I'd like to motion to call the question for a directed verdict on variance 26-23. Do we have
- a second? That's a second. All right. There's been a motion and a second to call the question for BAR-26-23.
- Pamela Davidson? Yes. Jeff Morris? Yes. Skip Daly? Yes.
- and Margaret Clements has stepped out, so she's unavailable. All right, that motion carries three to
- zero. Do we have a motion? Mr. Chair, if I may, I wish to motion to approve variance 26-23 based on
- the recommendation in diligent work done by staff and that practical difficulties are demonstrated
- for this variance. I second that. All right, there's been a motion in a second to approve VAR-26-23.
- This is the Ola Barrieta Eco Area 2 residential density maximum to Chapter 823. Skip Daly? Yes.
- Jeff Morris? Yes. Pamela Davidson? Yes. Motion carries three to zero.
- Moving on to the last item on the agenda, VAR-26-24. This is the McBride front yard setback variance
- to chapter 805. And again, we have a staff recommendation of approval. So do we have anyone here in
- the room who wishes to speak against this petition? If so, please come to the podium. Anyone online
- who wishes to speak against this petition? Seeing no one, I will come back to the Board of Zoning Appeals
- to call the question.
- absolutely love the opportunity to motion for objective verdict and to call the question on variance
- 26-24. I will second that. Okay there's been a motion and a second to call the question for VAR-26-24.
- Skip Daly? Yes. Jeff Morris? Yes. Pamela Davidson? Yes. Motion carries three to zero.
- Hey, do we have a motion to approve? Mr. Chair, if I may, I would like to motion for approval on variance
- 26-24, McBride front setback variance to chapter 804 based on the recommended approval of staff and
- their diligent work as well as practical difficulties
- being demonstrated in the evidence we have. I second that. All right. There's been a motion and a second.
- And this is to variance VAR-26-24, the McBride front yard setback to chapter 805. So I'm going to make
- a correction that it was 805. And I'll go ahead and call the roll. Jeff Morris? Yes.
- Pamela Davidson? Yes. And Skip Daly? Yes. Motion carries three to zero. I hope Margaret isn't putting
- too much time on the meter. We have a matter to go back to. Yes. Mr. Schelling, we've got the court
- ordered findings for Bedford Recycling CDU-21-3 under 53C06-2110-MI-002052.
- for sure working. Hello. Yeah, there we go. Yeah, we can hear you now. OK, I cannot recall. Did I pass
- out copies of the court's order last time? And did everyone have a chance to look at that? You did,
- and I did, yes. I wasn't here, so I didn't see that. OK. Let me circulate a few of those.
- Thank you. Thank you. After the Supreme Court's decision. I don't think you're on the microphone.
- After the Supreme Court's decision on the Bedford Recycling case, it went back to the trial court on
- Bedford Republic Services petition for judicial review. And the court had conducted a hearing, and these
- are the findings on that hearing. And if you turn to the last page, this is the only thing that really
- concerns us.
- that the court has remanded it to the Board of Zoning Appeals for findings on two issues. And so the
- board will need to make findings on that based on its record from the September 1st, 2021 hearing. And
- so I've outlined, well, that would be a certified record was submitted to the court as part of this
- process and exhibits one through seven, 18 and 19 are part of the record of the September 1st,
- 2021 hearing. So with respect to issue two that we're supposed to consider,
- whether the Board of Zoning Appeals collected proofs that Bedford Recycling delivered to a
- board administrator, a proof that the notice sent by certified mail were either delivered or returned
- undeliverable. There's nothing in the record that satisfies that. And so that was not met. The question
- then becomes, according to Judge Crotty, whether the property owned by Republic Services
- was required, the property owners were required to be given notice by Bedford Recycling. Okay. And under
- the rules, our rules, the ordinance and the board's rules and procedure, abutting property owners are
- required to be given notice. And so the question is whether the Republic Services property abuts
- Bedford Recycling's property. And I guess the legal department has looked at it, staff has looked at
- it, and it is our belief, which you can disagree with, that there is not sufficient evidence in the
- record to make that determination.
- There are no meets and bounds legal descriptions which can be compared that are in the record. Bedford
- Recycling submitted its deed, but it refers to lot one of a subdivision. So there's no meets and bounds
- description on that. And there is nothing relating to Republic's property
- there's no legal document relating to public property in the record whatsoever, because it simply wasn't
- an issue that was raised. And there are a few GIS printouts in the record, probably two or three of
- them. And on one of them, it looks like there's a little gap. But the question is, do you rely on
- the county's GIS records as being accurate enough to establish connection. The county has switched since
- that time from elevate to beacon. So even if we were to look at something now, just that it would not
- necessarily be the same.
- But are we or are we not allowed to look at anything now? Is it just what was presented then? That is
- our belief that we have to base our decision on the record. I don't believe that the board is allowed
- to conduct another hearing on this, but we believe that the trial court can accept new evidence under
- limited circumstances.
- We feel, I mean, it's the legal department's position that we would need to compare legal descriptions,
- meets and bounds, legal descriptions of these two properties to determine whether they abut. From information
- that was in the record at that time in September of 21. Well, that information is not in the record.
- So we believe that a court, the trial court would need to
- ask for that submission of that and evidence gis website says if i'm not mistaken not to be used for
- legal purposes it's a disclaimer on the website isn't it correct yeah so what yours it wouldn't be used
- for legal purposes it would with the legal purpose we would well much like many things that are presented
- to us or not
- used for legal purpose but we make decisions based on testimony that's presented and evidence that's
- placed into the record. So what you're saying to us is the issue is did they get notice which no one
- really knows because it's not in the record and number two were did they deserve notice because they
- abutted and that also
- is up for interpretation. So it sounds like a zero for two in terms of certainty. Yeah, the I think
- it's my understanding that staff's position was if the petitioner is required to send out notices to
- interested parties who are abutting property owners. So Bedford Recycling sent
- republic a notice okay there's there's evidence in the record to support that the notice was sent okay
- there isn't any evidence in the record to support the the finding that it was received or returned
- undelivered so the question is bedford's recycling sent republic
- a notice and as far as the bza is concerned if they did that it's clear that that it's not an issue
- okay it but um there was never any testimony or evidence introduced on the issue of whether republic
- was in the budding property owner because they were just notified so
- to the BZA, it didn't make that much difference at that time because they were sent notice. What the
- problem was, was that Bedford didn't submit the proof of notice. Yes. So what do you seek from us? What
- do we need to decide and do? And when do you seek it? Well, that's up to you. There was no timeline
- on the court's order.
- really just sort of asking you how you want to proceed, what kind of documents would you want to look
- at and consider? And we have proposed findings, but whether you want to see those now or whether you
- want to wait until you've had a chance to study the record yourself, it's up to you. May I? Yeah. I'd
- like to look through.
- what you hear today. And then I would like to kind of take what you said tonight and kind of stood over
- for a few days and over the weekend draft an email with some questions that I have and I I'm proposing
- to send that out to the group and kind of start from there and see where that
- takes us in terms of timeline and if anyone else has any follow-up questions or requests for information?
- Well, I would prefer if any questions that the board has or members directed to staff only and then
- staff can circulate questions. We really have to avoid
- the appearance that the board is conducting an email conversation on this issue. So, yeah. Fair enough.
- And that makes sense in this matter, I guess. All right. I will send you an email on Monday. Then maybe
- that can be a starting point. And then you guys can distribute what you wish through the in the way
- that upholds the integrity.
- Do you intend to have this resolved by next month's meeting or? I personally feel like if I looked it
- over, I could be ready to vote on it next month. Okay. Would that be acceptable timeline wise? Alrighty.
- I'll get you copies of the record exhibits that are applicable to the September 1st hearing. And so
- the only thing we're being asked to certify are
- items number one and two on page 26. Yeah, to prepare findings on those two issues. Prepare findings
- on that. So the findings could be, for example, it's not possible to determine whether or not Republic
- Services abuts the property in question.
- And, um, you know, with item number two, do we always collect proof that, um, that the, this is a specific
- requirement for conditional uses. I see. So you've also told us that there's proof it got mailed. It
- just is unknown if it was received.
- correct? Yes. And that's all part of the evidence entered into the record that we approve at the beginning
- of. I think we have a big problem with item one, the abutment issue. If the staff have perused it carefully,
- if we cannot meet that requirement, then we probably have factual problems succeeding, I would think.
- One of the matters that I'm seeing is I'm interested in knowing Does the statute require receipt or
- does the statute require? Mailing the ordinance requires that before the hearing the petitioners submit
- certified mail receipts proving that it was received or received on a
- deliverable. Okay. So there's no question that that record notices were mailed out. Those were mailed
- out and you have the receipts that it was either received on deliverable. We do not or it was not. Oh,
- you do not. So this could really hinge on whether or not the property is contiguous. That's right.
- Because otherwise the obligation falls by the wayside. That's right. One, two doesn't matter.
- That's right. That's it. That's it. It's like a dance. Yeah. All right. OK. Would you like a motion
- to continue this to the August meeting? Yes, please. OK. Can we get a motion? I will. Oh, sorry. No,
- go right ahead. I will motion that we
- that we table this evening and come back for a vote on this at our next regularly scheduled meeting
- in the month of August. We have a second. I second that. All right, there's been a motion and a second
- to forward and continue
- the court ordered findings for Bedford Recycling, CDU-21-3 under a very long state code to the next
- meeting. Do you want me to read that code? You do. And that would be for, I believe, August 5th to that
- meeting. All right, I'll go ahead and call the roll. Margaret Clements? Yes. Skip Daly? Yes.
- Jeff Morris? Yes. Pamela Davidson? Yes. Motion carries four to zero. Do we have any legal reports tonight?
- No, but would you like for me to email you copies of the record exhibits that need to be looked at?
- I think that would be helpful. Yeah. Yes. Thank you, Mr. Schilling. Do we have any staff reports tonight,
- Tammy? None from planning.
- Do we have a motion for adjournment? I move to adjourn. Second that. Margaret's put money into me.