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.