- Good evening. Thanks for being here. Tonight is the August 5th, 2026th meeting of the Monroe County
- Board of Zoning and Appeals. I would like to call that to order. Can we go ahead with a roll call director?
- Yes, Margaret Clements here. Skip daily. Pamela Davidson here. Guy Loftman here. Jeff Morris.
- So we have four members in person in a quorum. And Director, in the absence of Chairman Morris, I will
- be chairing tonight's proceedings. All right. Let's introduce the evidence, please. OK.
- I'd like to introduce the following items into the evidence. The Monroe County Development Ordinance
- as adopted and amended. The Monroe County Zoning Ordinance and Subdivision Control Ordinance as adopted
- and amended. The Monroe County Comprehensive Plan as adopted and amended. The Monroe County Board of
- Zoning Appeals Rules and Procedure as adopted and amended. And the cases that were legally advertised
- and scheduled for a hearing on tonight's agenda.
- I'd like to move to introduce the evidence as just enumerated. Second. It's been moved and seconded
- to approve the introduction of evidence. A vote yes is about to approve. Skip Daly? Yes. Pamela Davidson?
- Yes. Guy Lofman? Yes. Margaret Clements? Yes. Motion carries four to zero. And with regard to the agenda,
- I'd like to request that we approve the agenda with the change that we
- move administrative business to the end of the meeting. There's also been one withdrawal of the new
- business case. First case V a R dash 25 dash 49. So Blackwell on South Old State Road, 37 general contractor
- use variants that has been withdrawn. Okay, so I'd like to move approval of the agenda with those two
- changes. Administrative business at the end of the meeting.
- and with the VAR-25-49 withdrawn. Before we call a roll on that, could I just seek advice from staff
- to see if you are amenable prior to the board making that decision? Oh, yeah. All right. Carry on, please.
- This needs to be seconded. Yep. Second.
- Okay, it's been moved and seconded to approve tonight's agenda with two modifications as enumerated
- by Miss Margaret Clements. A vote yes is a vote to approve the amended agenda. Pamela Davidson? Yes.
- Guy Loftman? Yes. Margaret Clements? Yes. Skip Daley? Yes. Motion is approved four to zero. There are minutes.
- I would like to ask the board if anybody has not had the opportunity to review the minutes for April
- the 1st, May the 6th, and June the 3rd, all of 2026. Hearing nobody, does anybody have any requested
- amendments or changes to those three for said minutes? All right, those minutes are approved.
- Let's move on to new business, variance 26-14 Charlie and 14 Delta. Oh, are those part? No, those are
- separate. All right, variance 26-14 Charlie and variance 26-14 Delta. Mr. Brown, could you move forward
- with your presentation?
- May I ask the point of information? Is this one that recommends approval? It is indeed. Approval is
- recommended for both variances. That being the case, I suggest that we use the simplified plan we have
- in situations like this, which would first I would ask if any board members
- object to proceeding toward a decision on this without discussion, without presentation? I believe let's,
- before we jump to that conclusion, let me pull that up real quick if you don't mind. All right, let
- me ask in advance if there's any members of the audience or any members online that have any opposition
- to variances 26-14 Charlie and 14 Delta. Seeing no one, would you like to continue with your motion?
- Yes, is there a representative petitioner? Would the petitioner have any objection to the, although
- there are no conditions, so it's hard to imagine the petitioner would have any objections. That being
- the case, I move the question.
- and suggest we proceed direct. There's a motion to call the question on the first order of the new business.
- Is there a second? I second that. Director, could you please call a roll on calling the question? It's
- been moved and seconded to go ahead and follow the staff recommendation for VAR-26-14C.
- which is the eco area one acre contiguous buildable area of variance to chapter 823. And VAR-26-14D,
- which is the karst conservancy area setback to chapter 826. A vote yes is a vote to approve.
- Point of order. I'm sorry. We actually are just motioning for our ability to call the question. Then
- there'll be a motion for approval or denial after. I'm sorry.
- No, that's okay. Thank you for the clarification. So this is a motion to call to order by the board
- on bar-26-14C and 14D. A vote yes is a vote to call to order. Pamela Davidson? Yes. Margaret Clements?
- Yes. Skip Daly? Yes. Guy Loftman? Yes. Is there a motion from the board?
- I move to approve variances 26, 14C and D and adopt the recommendations and conclusions of the report
- in support of that. And may I add, and practical difficulties have been shown? Practical difficulties
- have been shown through the report. Okay, thank you. Is there a second? I second that.
- Okay, it's been moved and seconded now to approve both VAR-26-14C and VAR-26-14D, which is the Eco Area
- 1 and the Kars Conservancy Area Setback variances. A vote yes is a vote to approve both variances without
- any required conditions. Margaret Clements? Yes. Skip Daley? Yes. Guy Lofman? Yes. Pamela Davidson?
- Yes. Motion is approved, 4 to 0. Thank you, Director, and thank you, Mr. Brown. You're good. Congratulations.
- Absolutely not. I'm teasing. I believe that is correct, and Mr. Brown will answer any of your further
- questions.
- With that being said, let's move to page 39 in our books, variance 26-25. And you have the floor. Good
- evening. This is the Crow Crone front yard setback variance. The address is 3880 East Door Road and
- the property is zoned residential one in agricultural residential 2.5.
- So the request is a front yard setback from chapter 805. The purpose is for replacement of a garage
- that will encroach into the front yard setback and is located on neighboring lot. The structure is a
- 576 square foot garage that the petitioner is proposing to place 11.2 to 11.9 feet back from center
- line of East Door Road. That is a local road according to the Monroe County, sorry.
- there's a thoroughfare plan. They're required for a yard setback for the subject property, which the
- garage will be located is 25 feet from edge of pavement or edge of right away. The garage is supposed
- to be placed west of the driveway, the existing driveway that is, and it will be facing east. There
- is a gravel drive that will, the petitioner has stated will connect to that
- structure. The petitioner was informed that the setback request applies only to the structure and not
- to the entirety of the lot for any future development, so they've been made aware. And the boundary
- survey that was conducted by Bynum-Fanio Associates identifies the parcel as 5.0 acres. The petitioner
- states that the area east of the driveway contains a septic field and two mature historic trees are
- located to the south
- of the lot, which constrains viable locations for the structure. The structure will not be located on
- the petitioner's current lot and type E administrative subdivision will have to be pursued to amend
- the lot line so that the garage will be insured to be not only on their
- property, but also be able to meet all applicable setbacks. Should this variance be approved, the petitioner
- will have to pursue the type B administrative subdivision application to amend the lot lines. Like I
- stated before, if the variance request is denied, the petitioner will have to relocate the structure
- to an area that meets the zoning designation development standards for that zoning district. Other than
- that, the property meets all standards of the county development ordinance.
- These are comments from the highway department, project manager Ben Ayers. Would you go back to read
- this? I can't read that. Okay, I'll just go ahead and read it. Thank you stated other than routine maintenance.
- We do not have any plans to widen or make any improvements to East Door Road at this time. The proposed
- encroachment should not impact sight lines for ingress slash egress or motorists along East Door Road
- per the applicant. I do not have any issues or comments with this petition at the time. Thank you. So
- here is a snippet from Beacon GIS showing the location of the proposed garage and showing the acreage
- for both the
- subject property and the neighboring property. As you can see, the little yellow line is based on the
- boundary survey conducted by Bynum-Fano Associates, and that is what the actual property boundary lines
- look like. Here's the location map and the zoning map. As you can see, the configuration looks a little
- bit different than what we see here. We believe that's due to a section line.
- why that property is zoned Residential 1. Here's the comprehensive plan map, the site condition map.
- As you can see in the site condition map, east of the property has pretty steep slopes of 25 plus percent
- on the majority of the eastern portion of the property. And there is a lot of existing tree canopy there.
- Here's a snippet from Eagle View.
- showing the subject property on the east. That is where the garage is proposed to be located. You can
- see the gravel drive east of it. And that is what will connect to the proposed garage. So this is a
- photo I snapped of the existing tree canopy east of the lot. And the photo to the right shows the historic
- trees. To the south that is, sorry.
- The arrows indicate the location of the septic, where the petitioner believes the septic system is located,
- and that's in front of the residence. And the picture to the right is another picture in front of the
- residence showing that same proposed septic location. Here's a letter from petitioner's representatives
- to the BZA.
- Here's the boundary survey that was conducted by Bonifacio associates showing that those property boundary
- lines that I showed earlier. And here's the proposed location that the barrage, as you can see, it's
- just west of where their boundary line ends. So they hope to create that with amending the lot lines
- with the type B administrative subdivision.
- Here's a letter of support that we received. And here's staff's recommendation. Staff recommends denial
- as practical difficulties have not been demonstrated. The petitioner could relocate the proposed structure
- to meet the required front setback. I'll now answer any questions. Well, I think we'll hold on questions,
- but I want to preempt that with one,
- I didn't see in the package. Do you have confirmation that proper notice was sent out to neighbors for
- the record? Yes. All right. Thank you. All right. Is the petitioner or a representative of the petitioner
- either here or online? Looks like here. All right. The things I'm going to ask you guys to do is to
- come up and individually sign in on the book that should be on the podium.
- And then whoever is going to speak first, you will have a collective 15 minutes. That's one five. I
- ask a couple of things. One, that you adjust the microphone appropriately so we can get you on the record
- and we can all hear what you have to say. And two, I will ask that you both swear in at the same time.
- Raise your right hand when you're finished signing the book. You both attest that the testimony you're
- about to provide is the truth as you know it. All right, thank you. Your 15 minutes will begin when
- you speak.
- Hi, my name's Lynn Cron. I'm the petitioner. What we're trying to do is build a pole barn. Graver Post
- is going to build it. It's going to look beautiful. It needs to be closer to the road to avoid the two
- large trees. They're gorgeous trees. You wouldn't want to take them down, but they would be an obstruction
- for the building. So we're asking that we can move that building a little closer to the road to avoid
- the trees and avoid taking the trees out.
- We have purchased the land through an agreement with Ron Crow. It's a 40 by 40 square foot small spot
- at the end of our driveway. We've been neighbors of his since 1994. And so he gave us a good neighbor
- discount on the property. Everyone in our neighborhood that I know of is in support of this. I haven't
- heard any complaints, including from the neighbors across the road. The barn was designed by my husband
- who has passed while we've been waiting on this.
- So I'd like to see it built in his memory. And I'd like you to consider it. We've been a long time in
- Rowe County residents. My husband lived here his whole life. So the point of the barn is to store his
- tractor and our gator and other farm equipment that we have on the property to get them out from under
- tarp and in a decent building where he could work on them. So I appreciate your consideration.
- question. Can we can we hold off until the 15 until they completely. Yes. Any members of the board? My
- for 3880 East Door Road. We're requesting a front setback variance for the 24 by 24 structure. While
- staff recommends denial based on location options, a closer look at the physical site constraints
- demonstrates that the specific location is the only site logical choice that protects the property's
- infrastructure and natural environment. First, regarding the public safety and road maintenance, as
- Ben Ayers said, you guys saw that comment,
- I also have a copy of our survey printed out a little bit bigger if you guys want to see that. There
- were zero sightline issues for drivers, no road, no impact on road operations and no highway concerns.
- East door road is a quiet local road with no future widening plan. Furthermore, the garage will face
- east towards the existing gravel drive, maintain the rural character of the neighborhood without negatively
- affecting the surrounding property values.
- The staff report suggests that the structure could simply be shifted back, however, doing so forces
- into three severe site site conflicts. The area east of the drive is where the existing septic is for
- the house. Moving south or east pushes the structure directly into the 25% slopes and moving the footprint
- back to simply comply with the 25 foot setback would require clear cutting the landmark trees and a
- white oak and a sycamore tree.
- We fully acknowledge that this variance will only take effect following the completion of our type E
- subdivision to clean up the lot lines. This project represents the absolute minimum variance needed
- to allow a functional garage while honoring the natural topography and assets of the land. We respectfully
- request your approval tonight. Thank you. Well, thank you for addressing the slope issue because I read
- that in the report. My question is,
- the building. How far off is your building from the 25 ft setback? How much of an intrusion would go
- up to 12 ft. 12 ft. So half of it? Yes. And I have another paper print out of kind of that. PDF that
- Ray showed if you guys would like to see that as well, you can approach. Hand it to will give it back
- to you at the end.
- That's key. If you can, sir, if you can step back there, I think to the to the mic so that gets on the
- record. And I think we've got the same thing here, but we've got a bigger picture. Absolutely. It's
- the same exact thing. The yellow building is the proposed area. And can you see where my laser is? Yeah,
- that's that's what we're talking about. Correct. I just have a question. And that is, Mr. Mauer, would
- you describe
- the existing septic field and the trees then as a practical difficulty that would justify this, um,
- in approach mint into the 25 foot step back. Absolutely. Okay. As Lynn had mentioned, Michael had passed
- during this time of the project and his is very adamant about protecting these trees as they have been
- historic in this area and have been very mature trees. I know in the picture you can tell that they are
- substantial. So despite trying to just protect them, the cost of clearing them and grinding the stumps
- and such would be our practical difficulty in that aspect. And then obviously, we cannot build over
- the septic, and it would be very expensive to relocate the septic to be able to place the garage on
- that side of the drive. Thank you.
- And we are mindful in our county about tree canopy. We often talk about the importance of trees. I want
- to express my condolences on your loss. I'm so sorry. I'm so sorry. I have no further questions. Ms.
- Lough. I have a quick question for Mr. D'Vaya. He mentioned that there's no viable option without encroaching
- on the 25 foot setback
- You offered in your lack of practical difficulties that there was another place is the two of you in
- conflict of that point or. So the lack of we'll start with the first part the lack of practical difficulties so.
- currently there exists an existing home and an existing garage on the property. So it functions and
- is used as a single family residence. The request to place a second garage is addressed by the petitioner
- and their request and their burden to provide those findings. They could push the garage back or put
- those in another location. They do own five acres. I think that behind the home,
- could be a possibility if they're entertaining a type B at this time. But they have their reasonings
- for why they want to place it where they're placing it. OK, so you're suggesting there could be a viable
- option without environmental intrusiveness? I think based on the slope map, if you would pull that up,
- Ray. The orange line on the right hand side,
- going through the home. That's actually a section line. So there is space, I think, to the south of
- the home that potentially could host a garage. Although I don't know if the petition or the representatives
- are stating that there's not a way to do that. I would disagree with that. I can't use the mic to have
- you in the mic. Sorry. I'm sorry. I would disagree with that only because in the back of the house or
- even more trees.
- And there is a slope from our vegetable garden at the fence row all the way down to the woods that feeds
- a stream. But on top of that, the property line that Ron has with us is so narrow from our garage that
- trucks couldn't get back there to build it. Just the practical aspect of getting vehicles to the back
- of that to build it wouldn't work either. May I ask, if you built it at an alternate location, would that
- be farther from the road? Yes. Yes. So you'd have to put in additional. It would be behind the house
- then. Correct. Additional impervious surface would be required, not beyond your limit, but still it
- would be that. Well, let me ask staff, is the reason that the encroachment, is the reason it's not practical
- to move the trees? That is, if they took out the trees, would they be able to move it?
- matter of practicality, if I may interject, from what I understand is there's not a demonstrated need
- to have this. Therefore, placing it here requires an automatic denial because staff cannot determine
- that practical difficulty. Am I correct?
- So that's why it's in front of the board. Right. And the staff is concerned about the location. If they
- moved it back so that it would comply with the setback, would that require removal of the trees? Are
- you talking about behind the home?
- No, where are the trees in front of the... I'm confused about what trees would have to be removed. Those
- trees there to the right of the barn, between the existing garage and the barn, those old trees would
- be the ones that would have to be removed. Is that right? To place the garage in that area, yes, that
- tree would have to be removed on the screen to be placed right there. Just wanted to make sure that
- removing the trees was the reason
- Uh, it staff maintains that it would be practical to remove the trees and and the petitioner maintains
- that under their circumstances, it's not practical. Okay, great. Just wanted to make sure I had a grasp
- on what the issue is. The other issue is the one is can they move in the back and the other is the trees. So the
- the practicality of moving into the back would be the added cost of the driveway. Again, you're facing
- the steep slopes. I would like to say that this is an accurate representation of the 25% slopes without
- doing an actual topo survey on that. I can't speak to that. I know I've been out there, I've been on
- the property, and it is significant on the slopes. As for, like Guy mentioned, if we were to cut the
- trees, yes, we could get it back
- off of the 25% setback, but the existing garage that is built there is over the setback as is on the
- side yard. That would be corrected in doing the type E. As for the reason for the garage, as Len mentioned,
- is to store the equipment necessary to operate five acres and maintain it. That's the
- That's the reason on why we're trying to get the structure put in. Yes. May I ask a question of staff?
- Somewhere in the notes, it said petitioner believes the septic field is here. Do they check that before
- a structure? So someone else is checking that it really is where it's thought to be?
- That wasn't included on the survey or any documents that we've received, but the petitioner said that's
- where she believes that the septic system is located. We do require the septic system to be located
- on the plot plan when they go for construction. You can either certify that or verify that way going
- to the health department and reviewing the construction documents on file, or you can hire someone to
- probe and find it physically.
- but nobody disputes that the septic system is where they're saying it is. That's accepted. Yeah, we
- don't have information to prove otherwise. I'll also say that typically where the grass is very green
- on the aerials does usually coincide with the septic. That would be the petitioner's next step, should
- they get approval, is to get all those building permits, and they will have to be determined for certain
- of where it is.
- And that would all come. We are in the process of doing a type E, which is dependent on the approval
- of this. And then from the next steps from there, once that gets approved, we will go forward with getting
- the approved site plans and get the correct building permits for this. We have any other questions for
- the petitioners at this point? All right. Any other questions for staff at this point?
- All right, I would like to call anybody that I'm sorry, you guys can have a seat if you'd like. I'd
- like to call anybody either in person or online that wishes to speak for this petition. Seeing nobody
- in person. I don't see any hands online, but can you confirm that?
- Okay. Is there anybody that wishes to speak against this petition, either in the audience or online?
- Please make yourself known. I suppose on the phone as well. All right, I see nothing. Board, do you
- have any discussion you'd like to commence? I think there are practical difficulties, the slope.
- issue. The fact that the sideline is not affected. The highway department has no issue about that. The
- neighbors seem to not have issues about that. And it would be terrible to take down two magnificent
- trees like that. The property has a scarcity of flat ground. And what really
- I think what seals the deal for me is that to relocate it would raise slope issues. So one issue for
- another. So I am comfortable recommending we approve variance 26-25, the Crow Crone front yard setback
- variance to chapter 805 for property located at 3880 East Dora Road. I believe practical difficulties
- have been shown.
- It's been moved and seconded. It's been moved and seconded to approve VAR-26-25, the crow crone front
- yard setback variance to chapter 805. A vote yes is a vote to approve the setback and this would allow
- the petitioner to encroach up to 14 feet into that front setback as shown in this staff report and the
- site plan. A vote yes is a vote to approve.
- Yes. Skip daily. You have your votes. I have to say no, as I believe. There could be practical difficulties,
- but. I'm not. It was not testified. No.
- Yes. Pamela Davidson. Yes. Okay, the motion is approved three to one. Right. Thank you. Congratulations.
- Good luck on the building. And again, not condolences. Let's move on to our next
- piece of business. Page 59 in your packets, variance 26-26 alpha and variance 26-26 Bravo. And Mr. Myers.
- The floor is yours. All right. Pull up in the page here that I want to have.
- So this is the Hurst front yard setback variance to chapter 805. This is at 5320 West Orchard Drive.
- We're in Van Buren Township, section 14. And this is page 59 of the packet. It is zoned residential
- one. And the request, as I stated, is a front yard setback variance in order to construct a new 1,024
- square foot or 768 square foot attached
- or detached accessory structure. The petitioner has yet to decide on the final size and the final design
- with respect to it being attached or detached to the existing residents there. Chapter 805 of the Monroe
- County Development Ordinance requires a front yard setback of 25 feet measured from the edge of right
- of way for property in the residential zone and along a local designated road.
- This property is also listed in the Carmichael First Edition. It's lot number 20. And that subdivision
- plat shows a 25-foot front setback as well as a 60-foot right of way along South Davis Drive. Measuring
- 30 feet from the right of way going west towards the residence plus the 25-foot setback means that we're
- measuring 55 feet from the center line of South Davis Drive for this property.
- The existing residence sits approximately 48 feet from the center line, which results in an encroachment
- of about seven feet. This existing residence is considered legal pre-existing non-conforming as the
- property report card indicates that the residence was built in 1968 and the Carmichael first edition
- was recorded in May 1973. So evidence is showing that the
- property was built and developed before the plat was recorded, which kind of makes sense why the residence
- is sitting a bit into this front setback towards South Davis Drive. On the screen now we have the definitions
- for practical difficulties. This is used in the evaluation of variances and it's one of the criteria
- that we look at when making recommendations as well.
- So we can come back to this if needed. Here we have the table from Chapter 805 for the Residential One
- District. Highlighted in the top right corner is the front yard setback for the local roads being 25
- feet. And that's also the same front setback as platted in the Carmichael First Edition. Here we have
- the location map. And here is the site conditions map.
- No slopes greater than 25%. We are not in the environmental constraints overlay, nor the Lake Lemon
- overlay. There are no known karst or sinkhole features, and it is not in a critical watershed. This
- is the Carmichael first edition plot, lot number 20, showing those setbacks there as well. And here
- we have some
- imagery from a site visit conducted by staff. So this is the residence here in the pictures. And then
- this is the looking from South Davis Drive into the backyard of the property. That is where the proposed
- structure will be built, whether it is attached or detached. More pictures here as we come around the property.
- Now on the screen, we have the letter from the petitioner stating their request. And this is also included
- in the packet. Here we have the petitioner submitted conceptual plot plan. This shows the 32 by 32 design,
- which is the 1,024 square foot option. You can also see there that this is a detached version
- The petitioner had multiple different ideas and is still seeking the front setback, constructing the
- building in line with the existing residence rather than offset. So regardless of the size of the structure,
- being in line with the residence would require a front yard setback variance. And if it is attached
- to the structure, no matter where the addition is located,
- It must require a front yard setback variance because the existing structure is currently nonconforming.
- So anytime we see an expansion to a nonconforming structure, it does require that variance first, even
- if the addition is not creating more of an encroachment itself. Now we have a couple images from the
- petitioner showing those two design options. This is the 32 by 32.
- And this is the 24 by 32, kind of giving you an idea of their deliberations between the two options.
- And I'm sure they will speak more on their options as well. Before we move forward, Mr. Mayor, so thank
- you for that. Did the petitioner demonstrate evidence that they reached out to neighbors? Yes, we have
- proof of neighbor notice.
- So continuing with my presentation here, we have a couple figures next. So this is a staff generated
- plot plan using the Eagle View mapping. The yellow is the 1024 square foot option, that 32 by 32. And
- then the blue is the 768 square foot option, which is the 24 by 32. Both of those are shown here in
- line with the current residence. And you can see this figure is showing them as attached.
- And then we have that measurement there confirming that 48 feet from the center line of South Davis
- Drive. Figure two shows an alternative location generated by staff that meets the front setback of 55
- feet. This one is attached. So a front setback variance would still be required with this option because
- it is attached to a non-conforming structure, as I mentioned before. And this is showing the 32 by 24
- option in size.
- And then figure three here is showing that same 768 square foot option except detached. And this one
- would require would not require the front setback variance because again, it's it's for farther enough
- away from the center line of South Davis Drive. So this measurement is showing 56 feet. So these are
- some alternatives that planning staff generated. These came about through the
- publishing of the packet. So the petitioner reviewed these at the time that they reviewed the packet.
- So these were not discussed during the initial meetings with the petitioner. The petitioner in the initial
- meetings was pretty adamant about wanting it to be in line with the existing residents, hence why we
- are here for the variance request. Okay, that brings us to the staff recommendation.
- So we broke this out into two distinct variance numbers in order to facilitate a good discussion, but
- also provide the opportunity to vote on them separately. So VAR-26-26A is related to the non-conforming
- residence as it sits currently in the front setback. So staff recommends approval of VAR-26-26A, seeing
- that practical difficulties have been met.
- Evidence indicates that the residence was built prior to the recording of the Carmichael first edition
- and prior to setbacks under the county development ordinance. Any expansion to the existing residence
- will first require a front yard setback variance. And then staff is recommending denial of variance
- BAR-26-26B. This is for the addition or accessory structure that's proposed, stating that practical
- difficulties have not been met.
- The proposed structure can meet the front setback through redesign or relocation. The petitioner can
- utilize the 32 by 24 design option and align the structure with the sliding glass doors in the rear
- of the residence and still meet the 25 foot front setback. Read that as 55 feet from the center line.
- I will now take any questions. Let's bring the petitioner up and hear from them.
- petitioner in the room. Come on up, sir. And when you approach, if you could please go ahead and sign
- yourself in.
- please just make sure that the microphone is set appropriately. Could you please speak your name for
- the record? Yes, my name is Paul Hurst. Mr. Hurst, could you raise your right hand and attest that your
- testimony that you're about to provide is the truth as you know it? Yes. All right. You're going to
- have 15 minutes and then we might call you back based on some questions or whatnot. Yeah, I request
- a front side setback.
- to align with the east side of my house. I know it's over the line, but that was a mistake that was
- made 60 years ago. I don't know whether you have the drawings that look at the side of the house,
- the 24. So if I move it over to where it's out of the setback, then it lines up with the sliding glass
- door, which is a problem. If it's unattached,
- just cosmetic more than anything. But if it's a test, then it's not going to work. The same way with
- the 32, it falls right in between. The sliding glass door would become a hallway somehow. Since I had
- to come here and get it, I kind of just stopped looking at talking to contractors because I didn't know
- what I was going to get anywhere. So the whole thing is about whether I move it in or out.
- It's just, and I know according to the ordinance, I've got room on the other side, but this is a hobby
- room for my lawn equipment and storage, and it's just more convenient to have it attached to the garage.
- If I were to build onto the west side of the house where I have more property, it'd be okay for additional
- rooms, bedrooms, or maybe a rec room or something, but it just doesn't functionally
- convenient to have it on the west side. So this is more of a utility type setup. So that's kind of why
- I want it where it is. And it's just plus getting the electricity and the natural gas is going to be
- right there on that corner. So it'll be a lot easier because if I have to run the natural gas line,
- electricity will be a lot more expensive. And the 32 by 32s, I'm
- not leaning that way as much as I was because it's just so big. But the 32, if I had to move it over
- to where it's out of the setback, it's going to be right on top of my septic tank, which is going to
- be almost impossible to put that in there the way it is. Plus, I was trying to figure out how to do
- the patio. If I move that, the five to eight feet doesn't sound like much, but it makes it just not
- common sense way that I would have, you know, common sense says just move straight back and everything
- will be fine. So that's, I don't really have any more to add than that. That I do have, even if I come
- out 12 feet from the house, it still leaves me 18 feet to the north property line where I've got enough
- room to get it graded properly because they built this house one block too low. So half of my yard drains
- back toward the,
- I don't know why the what they were thinking in 68, but I wish they would have graded the property more
- better, but half the water runs back towards the house. So I got to make sure that I can get the water.
- I've had a couple guys out there and said, yeah, we can get this graded and make a swell to get it back
- out to the road because the last thing I want is more water problems. I don't want to add any more water
- onto the septic field the way it is. So that's
- a paramount too, but other than that, I don't have anything other than that. It's just. So Mr. Myers,
- could you go back to the picture that you had? Tell us once again on the record here what this is a
- view of. This is a view of the rear of the property as it exists as it exists and the measurements here
- are the petitioners
- for a proposed addition or detached structure. Let me go ahead. Excuse me. No, go ahead, Mr. Loughlin.
- Well, it's sort of a staff. I see in this picture, am I looking through the open door of the garage
- and the garage doors open at the neighbor across the street? Correct. Okay.
- That I see at the left side of that photo that the eve of the house goes farther out. Is the eve considered
- part of the encroachment? Well, we measure from the top of the building with the aerial imagery. So
- there is a possibility that instead of being what was the distance that we measured
- Instead of being 48 feet, it's possible that it might be 50 feet from the center line, which is still
- a violation of the front setback, if that's what you're asking. Well, I hadn't gotten quite to that
- point. But yes, that's what I'm asking. Yes. So based on the aerial imagery, we measure from where we
- see the edge of the home. And looking at the on the ground photograph there,
- There is quite a bit of an eave, which looks like it could be a few feet. But incorporating that into
- the measurement, there is still a front setback variance for South Davis Drive. But there's slightly
- less, maybe three feet. It looks to me like maybe three feet less intrusion than the eave has. Thank you.
- So with what you're proposing, offsetting it, where would that structure be on this image that I'm looking
- at now? Based on staff's alternative locations, the white polygon would shift to the right and capture
- in front of the patio and capture a portion or its entirety, the sliding glass door.
- So instead of aligning with the existing garage, as I believe it would be a skew and half patio,
- half garage. Correct. OK. Thanks. Does anyone else have any questions of the petitioner or of staff
- at this point? Well, let me just make it looks to me like this picture, you do encroach with your
- 24-foot plan into the patio a little bit. Yeah, that's going to all be jackhammered up. I got to redo
- the whole patio. Depending on the outcome this evening, I've got to come up. The building is the easy
- part. It's getting the attachment between the house is the more difficult thing to do because it may
- require conventional construction.
- as opposed to just a Graber Post building being put in and getting the grade right. I've got a very
- delicate, I want to get the water away from the house as good as I can possibly get it, but that's to
- be determined. Thank you. All right, go ahead and have a quick seat and we'll see if there is anybody
- in the room or online that wishes to speak in favor
- of this petitioner. I see nobody in the room. I don't see any activity online. All right. Is there anybody
- that wishes to speak in opposition to this petition, either in the room or online? Again, I see nobody.
- Correct me if I'm wrong.
- Let's bring it to a board discussion. I'd like to offer something. I think the biggest practical difficulty
- on this property is that it's pre-existing non-compliant in the first place. And the gentleman wants
- to add on to it. And he, I think, is correct to want it to be in line with his house, because that's
- more practical for his uses.
- and for the land. And it seems to me that it would be... Obviously, the property is well maintained
- and aesthetically, there's kind of a mandate for keeping the addition in line with the current property.
- And I don't see how it would
- cause any detriment to any of the adjacent properties because this is on a corner and the home is in
- a setback that was created after the home was built. And so the sight lines aren't going to be harmed
- any further with the new addition because on the corner,
- Uh, you know, the sight lines are what they are and people don't go so fast on those streets anyway.
- So I feel that practical difficulties have been met and I'm going to support this petition. I, I'm going
- to agree that the petitioner has stated, I'm going to second it. I think it was that it was not a motion.
- There's no motion. I beg your pardon. I believe that the petitioner has demonstrated.
- a solid argument for practical difficulty, perhaps mostly with his desire to keep water out of the foundation
- with where I believe the ease would be in line with the garage as opposed to dealing with the structural
- remodeling of the door, etc. So I
- probably also support this should my colleagues present a motion. I'm going to move that we approve
- variance 26-26A, the Hearst front yard setback variance, because as Margaret just said,
- was a nonconforming situation in 1968 when the house was built before it was subdivided in 73. And I
- also want to move that we approve variance 26-26B, the Hearst front yard setback variance addition accessory
- structure to
- property located at 5320 West Orchard Drive for exactly what my colleague has said, that practical
- difficulties have been met because the alliance, the symmetry of the building really has to is what
- is the preferred venue. Could I ask a question of everyone? Because I, you know, what has been brought
- up here is
- I'm sorry to interject because it might be a friendly amendment. The gentleman, Mr. Hurst, has stated
- that he has drainage problems on his property that he's going to try to address those. I don't think
- I would be satisfied putting any limitation on the EVE overhang. I think that it should match the current
- property if that's suitable to
- the solution of the water movement on the property. So I'd like to make that part of the record that
- the motion would include no limitation that would require the overhang to be shorter than what currently
- exists on the home structure. But I would also want it clear, and it is clear from the drawings,
- that the physical structure, not the roof, not the eaves, but the physical structure, must be in line
- with the existing physical structure, and that that would be a condition. Do you accept those? Yes,
- I accept those, and good luck rephrasing those. Good luck. So I would second that. Yeah. Yeah. I don't
- think eaves are... I don't know if all of that is in our purview.
- I'm not, we'll find out from the director once she comes out of huddle. I would just like that,
- because I too, I mean, it has to align. It would be wrong. I'll do that anyway. I don't know if there's
- a- I'll do that anyway for aesthetics. Yes, and that's practical. And the line is cheaper. Exactly, exactly.
- Trying to figure out what we've said. There's an overhang. I don't think an overhang. Some other condition.
- I'm getting old. And to too many VCA meetings. Haven't been through enough. OK. Drew has up on the screen
- that the house
- currently sits 48 feet from the center line. It's required to be 55. But if we give them an encroachment
- allowance of seven feet, even though that's the eve, we could say encroachment up to seven feet also
- in line with the foundation wall of the existing home or something. So then that way it's at worst seven
- at best could be five feet encroached.
- Okay, so what I don't want is for there to be a corner where the water is all coming off the house and
- the addition into a corner that we've required to be manufactured. Right, fine, flush. Yes. Okay. Okay.
- Right, so the structure, the exterior wall of the structure will be in line with the current exterior
- wall of the structure
- the eve of the new structure can extend as far as the eve of the existing structure. Yeah. Yes. Yes.
- Yeah. So I second that. OK, so it's been moved and seconded to approve both VAR-26-26A, which is for
- the existing home, and VAR-26-26B,
- which is for a front yard setback for the addition or an accessory structure to Chapter 805, allowing
- the petitioner up to a seven foot front yard setback on the Eastern property line, but also noting that
- the recommendation is to have any addition flush with the wall of the existing single family residence
- on the property. Okay, a vote.
- Yes is a vote to approve both variances. Guy Lofman. Yes. Pamela Davidson. Yes. Margaret Clements. Yes.
- Skip Daly. Yes. Okay. Motion is approved four to zero. Yes. First, congratulations. I hope you understand
- all of that. I'm sure Mr Myers will work with you on moving that forward.
- not at this time, but I'll coordinate with you for next steps. Thanks for presenting. All right,
- moving along. Page 81 for those of you following along in the packets. Number seven and number eight
- on the agenda, the variance
- 2, 6, dash 2, 7, alpha and 2, 6, dash 2, 7, Bravo. Morro front yard setback variance to chapter 8, 0,
- 5, and the side yard. Mr. Myers, is this you again? Yes. All right. Please, if you will. Thank you.
- So this is located at 3207 South Rogers Street. It's a one acre parcel in Perry Township, section 17,
- and it's a zone to high development residential or HD.
- The petitioner is requesting two development standards variances from Chapter 805 of the County Development
- Ordinance to construct a 720 square foot carport, which will have solar panels on the roof, as well
- as permit an after the fact expansion of a residential accessory structure that encroached into a five
- foot side yard setback on the north property line. The petition site, as I stated, is high development
- residential.
- The front setback, according to the County Development Ordinance, is 35 feet from the edge of pavement
- along a major slash minor collector roadway. The proposed carport structure will sit 30 feet from the
- edge of pavement, which is a five-foot encroachment into that required setback. According to the County
- Development Ordinance, the side yard setback for property in the HD zone is five feet.
- The residential accessory structure on the north side of the property was expanded in a northerly direction,
- which created the current encroachment of almost five feet, which is nearly a zero foot setback. That
- occurred at some point between 2017 and 2020 without an improvement location permit from the planning
- department. This created that encroachment and this came about during the review of the property in
- early coordination with the petitioner
- when they came in to discuss the carport location on the property. During that review, planning staff
- indicated that an after-the-fact improvement location permit will be required for that addition, and
- that because it is extending into the required side setback, that a after-the-fact variance will be
- required as well. Here we have the definitions for practical difficulties, similar to the previous case,
- so we can come back and reference these if needed.
- Now on the screen, we have the table for the HD zone, stating the front setback variances. So that yellow
- should be actually in the front yard minor major collector showing 35 feet instead of the 25 feet. Apologies
- for that. But then on the bottom here, we have the side yard setback listed as five feet. Here's the
- location map along South Roger Street in Perry Township. And here we have the site conditions map, staff
- provided some indicators here on the map showing the proposed carport in blue. And the structure that
- was expanded upon in the northerly direction is identified with the yellow arrow. These are not necessarily
- drawn to scale. Here we have pictures on the ground. So this is the driveway entrance to the property.
- We have the existing residence here in the lower lower right hand corner. You can see a bit of gravel
- in the lower right hand corner as well. That's the location of the proposed carport. Here we have more
- pictures of that particular area. You can see the stakes that are shown here of the potential location
- for that carport structure. Some more photographs here.
- The lower right-hand photograph kind of giving you an idea of that distance from South Rogers Street
- to the pole of the or stake of the proposed carport structure. Now on the screen we have some property
- line indicators that the petitioner kindly indicated to staff during the site visit. So on the left
- side of the screen showing with the yellow arrow you can see a rebar cap that shows the
- property line between the existing property and the property adjacent to the north. Now on the right
- side of the screen, we are looking west towards South Roger Street. We are in the backyard of the property.
- And you can see a couple rebar stakes there as well that indicate the existing property line. And if
- you were to follow those up the property towards the road, you can see where this overhang from the shed here
- extends and gets really close to that property line. Some more photographs of the after the fact structure.
- You can see the addition that was made. So two additions actually were made to this barn structure.
- You can see the addition that was made on the left side of the screen, which is in the northerly direction
- that violates the front or the side setback, excuse me. And then you can see that greenhouse type addition
- that was made to the south of the structure as well.
- On the right side of the screen, we have a picture of the fence, existing fence on the property. You
- can see the telephone pole there. According to the petitioner, the telephone pole is approximately where
- the property line resides. So just giving you some context and some images to look at for this petition.
- More photographs here of that existing after the fact expansion being close to the existing property line.
- Now on the screen, we have the letter from the petitioner stating their request for the setback for
- the carport. On the right, we have the petitioner submitted site plan. That site plan specifically denotes
- the carport structure as stated previously through conversation with the petitioner and full review
- of the site
- The need for the after the fact variance was indicated to the petitioner after they generated this site
- plan for us. All right. I think that covers everything that I wanted to speak on for this petition.
- So that brings us to our recommendation from staff. So overall, staff is recommending denial of VAR-26-27A.
- stating that practical difficulties have not been met for the carport structure. The petitioner could
- reduce the size of the carport to meet the 35 foot front setback or keep the same size and relocate
- the structure closer to the existing residence or place the carport over the existing driveway. And
- then staff recommends denial of VAR-26-27B stating that practical difficulties have not been met per
- the ordinance. Had the petitioner followed the proper permitting procedures
- the planning department would have informed the petitioner of the side setback requirement, and this
- expansion could have been made elsewhere on the structure or not at all. I will now take any questions.
- First and foremost, Mr. Myers, thank you for that. Did the petitioner, do you have evidence that he
- reached out to neighbors? Yes. Thank you. I have one question. Please. Mr. Myers, could you go over
- when carports are considered permanent structures and not, I mean, is this considered a permanent structure
- requiring such a setback? Yes, any structure over 200 square feet, whether it's built on a permanent
- foundation or not, requires a permit through the planning department and building department. Right.
- Let's go ahead and bring up
- the petitioner or his representative. And the same overdeal will apply to you. Please sign. I'm hearing
- impaired. Okay. And the acoustics and the white noise. I can appreciate. Okay. All right. I'm going
- to ask you to sign the book. Okay.
- The next thing I'm going to do is ask you to speak your name into the microphone. William Morrow.
- Thank you, Mr. Morrow. The next thing I will do is ask you to raise your hand and attest that your testimony
- is the truth as you know it. Before we get going, you will have 15 minutes. Would you prefer that I spin this
- television around so you can read the questions. Yes. Yes. Can we? Should we? Will this one? I understand
- most of what you guys are saying, but I gotta do is miss order to for to miss me. Will this one spin
- skip? Yes, that one on the TV can you can move that yeah that or I can. This one would probably be easier
- just because it's closer.
- Okay. All right. Yeah. All right. 15 minutes. Okay. Um, well on the carport structure out front, um,
- I'm wanting to bill that's that parking pads been there 12, 15 years, three cars usually park in there.
- The size of that structure, 30 by 24, I think is what it is, matches my requirement needs for square
- footage of solar panels to supply the house, but basically take care of all the electrical load. And
- I can't really relocate it anywhere else on the property and serve the purpose of parking
- as well, so I'm trying to get both purposes fulfilled. I'm concerned if I move it five feet farther,
- one whole side will be off the pad, which I will dig out and put road base in and compact back, but
- I'm still concerned about that side settling. It also puts it almost on top of the walk
- going up to the house, which I think creates a odd flow and aesthetics too. It's just more evenly spaced
- if it's where it's at now. There's also three incidences of people backing, people park in front of
- the garage and putting it five foot
- farther back, and it doesn't sound like it should be issued. But there's been three little fender benders
- where people parked there have backed out and hit people in front of the garage. So that's just tightening
- up that space that much more. So practical reasons and aesthetics is why I like to move it. Plus, I
- really don't want to reduce the size of it due to getting enough panels on there.
- As far as I know, it's not in any of the right of ways. Won't impede your field of vision anymore going
- down. You have plenty of room to see up and down Roger Street there getting in and out. So that's basically
- my appeal there. I'd like to keep it on the pad where it is now. And back.
- that my folks bought the place, I think, in 68. And dad built that little barn out there and within
- a few years, early 70s, he built it was a dog run is what he called it. It's basically a deck. And it's
- pretty close to the property line, but I don't think it's on property line. And I'm saying this, Drew
- had the pictures of the stakes coming down, which is a
- fence, the Haley's probably put up back in the 50s or 60s. And if you site, it's kind of hard because
- there's trays and stuff, but if you stand on them and site down, it looks like I'm going to say that.
- And also you can see the telephone pole there. I'm going to say that structures, I believe, really like
- three or four feet. I don't think it's five feet, but I think it's three or four feet off property line.
- If those stakes are correct. I know that's not
- a survey or anything, but I also doubt the Haley's gave me any property when they drove the, you know,
- set that fence up in the 50s. So anyway, that's basically my reasoning for asking for the petition.
- Do we have any questions for either the petitioner or staff? I have a question. Sure.
- So if I understand correctly, how long has that existing pad been there and what material is the pad?
- Is it gravel or? It's gravel. Gravel. How long has it been there? Did you put that in? At least 12 or
- 15 years. 12 or 15 years. I don't know. It's been there a while. So your petition is that the carport
- match the size of that gravel pad that's been there for 15 years.
- Yes, yeah, and that's and that's 5 foot closer to the road 35 feet and again I am really seriously concerned
- the structure is not going to have walls on it's just going to be the steel structure with a roof. And
- I'm concerned that if.
- One side of it is on a compacted gravel drive and the other side is on newly excavated. Even if you
- compact it, I'm worried about that structure settling a little off on that side. And that's the side
- where the inverter and eventually batteries will be. And I don't, even if it only settles a couple three
- inches, I'm worried about it affecting the functionality of the solar system.
- So it may not, but that's just a concern of mine. Like I said, it makes it tighter for pulling out.
- So, and again, to reduce, I'm right at the size I need to get enough panels to meet my electrical needs
- for the house. Right. And you also said
- that to move it, the setback is 35 feet, and this encroaches by five feet, is what it does. So to move
- it, to not encroach, would be right next to the walkway to the house, you said? It would be literally
- about that far off the walkway. Thank you for that. That's going to look funky, and it just creates
- a weird, right now there's a bed that's about seven or eight feet wide.
- just, I think that's really going to look funky to have that building right there. The drawing there
- has an arrow, yellow arrow, and that, if I understand it, points to the side yard encroachment, where
- it should be five feet back, and it's closer to that. The yellow arrow. Yeah. When was that structure
- built, to the best of your knowledge?
- When was that structure built? Early 70s. It's been there over 50 years. Well, that's pre-existing.
- Would that be pre-existing? It's hard to tell with the aerial imagery with respect to the original green
- shed and then the dog run as the petitioner has stated. But based on my analysis to the best of my ability,
- it looks like an expansion was made at some point. Looking at the imagery,
- And that's what triggers the review and the requirement for a improvement location permit when you're
- expanding onto a structure. And because it was expanded in a direction that violated the front setback,
- then that was what required the setback variance. Mr. Morrow? I'm sorry. Quick question. So the structure
- on the side was built in the 70s.
- Have you expanded it in recent years? No, my dad. My dad built the original. I'm going to call it a
- barn. It's I think it's 12 by 16. It's built like a barn. It's barn shaped and then I'm going to say.
- My sister said they bought the house in 68 within a short period of time, say through four years they
- built the barn and within another year or two. So I'm going to say five years, six years from 68.
- is when they built the dog room. So thank you. Yeah. And what would be the pre-existing? Have an ordinance
- until the 90s. Right. So assuming that the testimony is correct, which he sworn and I think we should,
- I'm willing to accept if that is pre-existing, would that
- mean that he wouldn't need the variance would be automatic or he wouldn't need it? I think he needs
- it because we can't determine that it's pre-existing and staff has already brought it forward that this
- new construction permit would require that setback be in place unless if he can determine it's pre-existing.
- If we deny the carport,
- then he wouldn't really need the variance, because nothing's changing. If we grant the carport, on the
- other hand, if we're here and we're considering it, it's certainly sensible, so nobody else has to deal
- with this again. Yes, while we're at it. While we're at it, yes. Yes, and I will add that, based on
- aerial imagery, at least between
- 16 and 2019, it looks like the addition on the south end of the barn was added, which would have been
- an addition to a pre-existing non-conforming structure, similar to the past variance case, where because
- the dog run section was violating the front setback by adding an addition to the barn in the south direction,
- it would still trigger the variance requirement because it's a pre-existing non-conforming structure.
- Thank you. Not understanding that. You're saying when I added the greenhouse, which is the south side
- of the bar? Yes. So for a structure, if it violates a setback, even if it's pre-existing, because you're
- adding on to a pre-existing non-conforming structure, even if you're not further expanding in a direction that
- the front setback issue. You're still adding on to a nonconforming structure, and by the ordinances
- language, it says you need a variance in order to do that. Okay. All right. Are there any other questions
- for the petitioner or? All right. At this time, sir, you can have a seat and we'll work it out for you
- here. All right.
- Well, there's nobody in the room. Is there anybody online that wishes to speak for this petition? I
- see no one. Is there anybody online that wishes to speak against this petition? Again, seeing nobody.
- Let's commiserate. I'm sympathetic to this.
- that it's been a parking spot for many, many, many years. The compacted nature of the fact that moving
- it five feet would impede the walk. And I understand about those fender benders, three different fender
- benders for that kind of distance. So five feet into a 35-foot setback, I'm very sympathetic.
- to this case, so I'm going to recommend unless anybody wants to make any other comments. I'm going to
- recommend we accept variance 26-27A and also variance 26-27B. Oh, the Morrow front yard setback variance
- to chapter 805 is the A and the B is the Morrow side yard setback variance to chapter 805.
- I'm compelled by it could be a pre-existing condition. It's been in this situation for a long,
- long time, and I think to move it would have practical difficulties. May I ask you a quick question?
- Is your recommendation an official motion? Yes, it was an official motion. Thank you. I'll second that.
- we have a motion and a second if you will director yes so it's been moved and seconded to approve var-26-27a
- the front yard setback to chapter 805 and var-26-27b the side yard setback to chapter 805 these are
- for the site plan as shown so
- those are specific setback variances as shown in the packet. A vote yes is a vote to approve. Margaret
- Clements? Yes. Skip Daly? Yes. Guy Lofman? Yes. Pamela Davidson? Yes, and I also appreciate your telling
- us about the solar panels and how they will fit dimensionally because that is also a good attribute.
- It doesn't have to do with my vote,
- I just wanted to comment on that. Yes. All right. Motion is approved. Four to zero. All right. Mr. Morrow,
- you are approved. Congratulations. Please make sure you connect with Mr. Myers on next steps. And off
- the record, would your middle name happen to be Thomas? Yes.
- All right, so unofficially, your name is Bill Tomorrow. Oh, that's funny. Thank you. Thank you. Have
- a good evening. And that concludes the petition part of
- our meeting in record time, mind you. Good job, Skip. Good job. It wasn't me. And thank you, staff,
- on all of that. Well, I guess he left. Now that brings us to the administrative business. And I am going
- to yield the floor to Attorney Schilling to discuss
- what he will at his leisure. Thank you very much. This relates to the Bedford recycling case that has
- been through the Court of Appeals into the Supreme Court. And it was back into the trial court. And
- the issue in front of the trial court at this time is whether Bedford recycling
- complied with the notification requirements and gave Republic Services sufficient notice and the court
- considered that and said that the court wants the board to and here's the order is remanded to the Monroe
- County Board of Zoning Appeals to issue findings of fact
- on the following issues. Whether the real property owned by Republic Services of Indiana LP abuts the
- real property subject to the conditional use order, and two, whether the Monroe County Board of Zoning
- and Appeals collected proof that Bedford Recycling delivered to a board administrator a proof that the
- notice was sent by certified mail
- were either delivered or returned undeliverable. So there were two issues that the court wants the BZA
- to address. And I guess we have proposed findings in front of you. And it has three options of whether
- you can look at the record and see whether the property abuts, whether it doesn't abut, or whether you can't
- of the record as to whether the property abuts. The other thing that's kind of confusing and might be
- another approach at this point is that seek clarification from the court as to what they exactly want
- the board to do because
- The record is closed on this, but there is a statute that says that the court may receive evidence in
- addition to that contained in the board record for judicial review only if the evidence relates to the
- validity of the zoning decision at the time the decision was made and is needed
- to decide disputed issues regarding two things. And one of them is the unlawfulness of procedure or
- the decision-making process. This subsection applies only if the additional evidence could not, by due
- diligence, have been discovered and raised in the board proceeding giving rise to a proceeding for judicial
- review. And it says,
- The court may remand the matter to the board before final disposition of a petition for review with
- directions that the board conduct further fact finding or that the board prepare an adequate record.
- If the board failed to prepare or preserve an adequate record, the record improperly excluded or admitted
- evidence from the record or a relevant law changed after the zoning decision.
- So it's not clear to me from the wording of the court's order that they wanted the board to do additional
- fact finding, to gather additional facts. But if you want us to seek clarification from the court on
- that point as to whether the court wanted us to do that, then we can do that, or you can make the decision
- based on the findings that you have in front of you, proposed findings. Anything else you'd like to
- add before I make a few comments? I've done a little bit of work on this.
- What I just showed you is in the record. It is found at the third hour, 19 minutes and 13 seconds on
- the CATS television recording of this. The top picture is on the record, and this is also confirmed in our
- that we received. The top picture. The top picture. There's a picture on the left and a picture on the
- right. The top picture on the left. Thank you. Which is also found on page one. Anyway, it's also found
- on the second to last page in your legal document. It's very similar.
- looks like it's within a few seconds of where I took a freeze frame of this at again, our three minute
- 19 second 13. And the property in question is the the one with the acute angle on the bottom right going
- at the 45 degree going up circled or perimeter in white.
- that is the petitioner's property. And you'll see below that, below that there's a triangle property
- that there's a line between the acute angle going down to the
- triangle of the neighbor's property in question. Now, it was pretty clear to me looking at that, that
- there was a gap. So I blew it up and I will show you that. This is the exact image just magnified.
- little protractor to show that the angles did not line up, therefore there was obviously a gap. And
- I was determined at that point that the properties do not abut definition in a legal sense is to border
- touching an edge. There's not touching
- going between those two properties. Now, I was curious as what today's, I did not weigh in my decision,
- I was curious as what today's GIS imagery shows and today's GIS imagery as
- shown in the picture on bottom confirms that there is no change from what we were shown till today.
- That did not weigh in any decision as I was already set, but I just wanted confirmation that today's
- GIS was showing the same. That's the bottom picture where you show the Republic property in blue, the
- red property above it to the left with the designation Perry showing the township would be the Bedford
- property. So with that acute angle not lining up and the definition of a budding being touching
- I do not see any reason to move forward and with any other aspect of responsibility of notification
- because it is clear to me from the evidence that was presented in that meeting upon review of the Cats
- television that
- it is a black or white decision that it does not abut and the responsibility did not fall on the petitioner
- for that notification. Are you therefore saying that you think the sensible thing is to choose option
- one? I will allow more discussion from the board, but it is my belief that
- Option one is the correct decision. Very good. I just wanted to make sure that I understood where you
- were going and I did. I have a question for counsel. You read a statute and my ears perked up on some
- of the words that were something like, we might be able to consider evidence if it could not have been
- discovered.
- at the time of the hearing. Would you mind repeating that? Well, there's two sections to this statute.
- One is 36741612A. The court may receive evidence in addition to that contained in the board record for
- judicial review
- only if the evidence relates to the validity of the zoning decision at the time the decision was made
- and is needed to decide disputing issues regarding one or both of the following. And one of those will
- be unlawful as of procedure. Then it says this subsection applies only if the additional evidence could
- not by due diligence have been discovered and raised in the board proceeding giving rise
- to a proceeding for judicial review. The second subsection B states, the court may remand the matter
- to the board before final disposition of a petition for review with directions that the board conduct
- further fact finding or that the board prepare an adequate record if the board failed to prepare or
- preserve an adequate record
- the board improperly excluded or admitted evidence from the record or a relevant law changed after the
- zoning decision and the court determines that the new provision of law may control the outcome. That
- one obviously doesn't apply. So that's what the statute says. And the court's ordered the BZA to issue
- findings of fact and it didn't say
- the board conduct further fact finding, in other words, additional facts? Well, if I interpret these
- statutes, neither of which I've read in detail myself and studied, but it sounds like, I mean, basically,
- I agree with Mr. Daley. Our record shows a gap.
- If there's something that would have shown they were touching, it could have been in the record. No,
- it didn't make it in the record, but there's nothing in our record. Anything that would clarify it now
- would have clarified it then. There certainly would be ample. If somebody would come in with a survey
- Bynum Fanyo had shown that this, if you take these legal descriptions, but that didn't happen. It could
- have happened. I think our record is sufficient based on the analysis that has been made by Mr. Daley
- for us to proceed to choose option one. Now, I'm asking you, as our counsel,
- do you have reservations about that decision? Or is that going to have consequences that I haven't thought
- of? The only thing you need to think about is whether there's evidence in the record as sufficient evidence.
- And so as long as there is a scintilla of evidence in the record supporting your decision, then the
- court has to accept that.
- the board also has the authority to judge the credibility of evidence. And so that's why option three
- was provided. If you think these are GIS drawings, if you think that our GIS drawings are accurate and
- sufficient to rely on and credible, then what Skip is talking about makes sense. But if you don't think
- it's credible and that's your call,
- then you could choose another option. Well, my perspective on that is we assume, we presume basically,
- we assume that the GIS documents we have are credible unless there's some reason to question them. That
- reason should have been shown at the time of the hearing. Yeah. And I find then the sufficiently credible,
- certainly at least an iota of credibility,
- to feel comfortable with. Just the reason there was nothing put in the record about this is because
- they did send notice to Republic, okay? So whether they had to or not was never an issue because they
- did. But there was no reply from Republic. Yeah, they did not submit proof that Republic received it.
- That's the issue. But I'm suggesting it's moot. And I want to clarify my comments as to stating what
- we're considering evidence
- It's not our determination whether or not that evidence was admitted properly or not. We're just reviewing
- the evidence, correct? Yeah, this evidence was presented to the board during the meeting. Presented
- to the board, correct. So the board received this as evidence. This is the record that all the courts
- have relied on and that the board can rely on tonight. According to that,
- My finding for colleague discussion is that the petitioner is relieved of the responsibility to demonstrate
- that notice was provided because the properties do not abut. I agree with that, and I was there at the
- hearings here at the VCA.
- on the board at that time. So I would agree with that. Unfortunately, I was actually online, present
- for the meeting. I was kicked offline for a good part of that. So I've relived this several times over
- the last month on Katz TV. That is unfortunate.
- I do want to thank Mr. Daly for the outstanding homework he has brought to this topic. Yes, absolutely.
- Which is not the first time he's done that. That's exactly right. Someone needs to motion on a decision
- if they wish or continue discussing. Well, and if I move and the board accepts
- Mr. Schelling, that option one, you have, I hear no legal reservations about that. No, absolutely not.
- And if you do decide to go with option one, I can run down, take out option two and three and print
- up a new findings of fact for you to sign tonight if you would like that. Let's get that done. Let's
- get that done. I move.
- that the board accept option one as presented by council as our response to the court order. And that
- we do not choose either number two or option two or option three. Second that. Do we need to?
- motion carries, then the second issue is moot. But, uh, I don't know if you want to address that.
- We will. Let's let's see if this motion carries, and then I will recommend a course of action. Yeah.
- All right. We've had a motion in a
- because only we are looking at this document. It's in the record. Is it in the record? Well, you can
- read option one. Yeah, I would just read option one. Yes, you should put that in there. Okay, I will
- read that the board in response to the court's order determines that the depictions of the Bedford Recycling
- Inc. property and the Republican service
- Republic Services of Indiana LP property included in record exhibit five demonstrate that those properties
- are not abutting properties for purposes of the interested parties notification requirement.
- I second that. Okay, the motion has been moved and seconded as noted by board member Mr. Guy Lofman
- and stated
- a vote yes is a vote to approve the option one as stated. Pamela Davidson. Yes. Margaret Clements. Yes.
- Skip Daly. Yes. Guy Laughman. Yes. Okay. The motion is approved four to zero. All right. At this point,
- I would like to request from a colleague that they consider
- moving to remove options two and three from the documents in question. I would like to move that we
- remove options two and three from our findings on remand and I'd can I talk about remand issue number
- two or not yet? No let's get this done first. Okay so I yes we remove options two and three
- from our findings on remand. Second. Okay, it's been moved and seconded to remove options two and three
- from issue number one. A vote yes is a vote to remove options two and three. Barbara Clements? Yes.
- Skip Daly? Yes. Guy Loftman? Yes. Pamela Davidson?
- Well, I'm confused why that would even be needed if we're going to sign off on option one, the other
- two die on the vine. I don't really understand the purpose of this. Because it's been presented as one
- complete document, just because we're accepting this, we're going to remove it and we just need consent.
- This was an actual court filing? No.
- It wasn't a court file. This is just for your use. It's for us. So it's a working paper. But it's in
- our record of this meeting. I agree, Pam. I agree, but I'll say present. Present. Here's three to zero
- on that. Another page from Mr. Daly's book.
- I'm sorry. Miss Clements. You have something to say on findings on remand issue, too. Yes that remand
- issue number two no longer applies, having decided remand issue number one. So I'd like to move that
- we remove or eliminate remand issue number two. Yeah, I mean, and you can certainly do that, but. Remand
- issue number two is a fact.
- And it's your choice, but you could just leave it up to the judge to determine whether it's moot or
- not. I would say that we collected testimony that Bedford Recycling had delivered to Republic. No. We
- say that through option one. Yeah. Well, we have evidence that they mailed
- whether it was actually received or delivered or not, we don't have the proof, right? Okay, so if somebody
- else would like to make an appropriate motion. I mean, that was fine if you wanted to proceed with that.
- I'm a little bit lost, so I'd like it to be correct for the legal plug. Is there now an inconsistency
- in our record because our record says
- that it was mailed, but no proof of receipt. How about this, if I may? Yeah, I move that on findings
- on remand issue number two, we confirm evidence that notification was sent
- although we find it moot. Moot is a technical term I don't think we should use. It's a technical issue.
- I can't go with moot. Unnecessary. Unnecessary is very different to me than moot.
- The question number two is, did Bedford Recycling submit proof of delivery? And I tried to state, yes,
- we have evidence that they presented notification. They presented evidence of mailing. They did not
- present evidence of delivery. They're supposed to
- to provide us with receipts showing that the documents had been delivered. But since the properties
- don't abut, that wasn't necessary. It wasn't necessary, but the actual answer to the question is they
- did not present evidence that it was delivered. Right. OK, I got it. I got it. OK, are you going to
- move? Skip that fact. That fact doesn't change. You're correct. Correct. OK.
- but it answers the question that the court asked us. Delivery and receipt, shipment, delivery, and receipt
- are three things. Delivery and receipt are separate, and delivery and shipment are separate. But how
- about this? Proof is another thing altogether. Proof of delivery is another thing altogether. Well,
- evidence is, and proof is.
- This is a conditional use requirement. And I can read that to you here. And this is from the conditional
- use requirement. Could you speak into the mic? Sorry. Conditional use requirement 8133E.
- At least 10 days prior to the board's hearing on the application for conditional use approval, the applicant
- in the manner prescribed in the board's rules of procedures shall notify all interested persons of the
- public hearing by certified mail. Prior to the hearing, the applicant shall provide the administrator
- with certified mail receipts demonstrating that the required notices were delivered or returned undeliverable.
- I'm not trying to play semantics here. I believe the evidence you have shows it was delivered. I don't
- believe the evidence you have shows it was received. It was mailed. You don't know it was delivered.
- The UPS has not told us they delivered it. You don't know that. Whatever you guys want. Is this even
- necessary?
- Um, didn't we've weren't our findings a fact that we could not say it was delivered. That is correct.
- So we've already addressed that in our finding. No, no. The first finding was it wasn't necessary to
- send notice to them. Okay. So if the judge wants to send it back based on remand issue number two, the
- judge could do that, but the judge will likely not.
- The judge just asked us, did you guys receive any receipts? The answer is no. When she gets your findings,
- she'll say, it doesn't matter that they didn't receive receipts because it wasn't necessary to notify
- them in the first place. They don't abide. OK. I mean, the main question on number one, you've already
- answered, and that takes care of it.
- as far as the court's concerned. So we don't have to do anything else? We don't. Well, we do what the
- court asked us to do, and that is we address this question. But remand issue number two, does it help
- if we certify that? I don't think so. It doesn't help one way or the other. So let's just, if you don't
- mind, you could go down and print that up. Well, I'm still, I'm still,
- The ordinance that requires that they be notified and that we receive proof that it was delivered or
- returned as undeliverable. Was it returned as undeliverable? We received nothing on that that I could
- find in the record. We showed that it was sent, but nothing about whether it was returned as undeliverable.
- I got it. I was missing that fact. I'm now comfortable with that fact. So would it be appropriate for
- me to move, would it create, if we passed a motion that said we adopt findings and recommend issue as
- set forth,
- in your document, that this is what it says, and does not include receiving that they received it, and
- does not include certificate that written notice was undeliverable. It seems to me that those are all
- facts. I'm perfectly comfortable re-establishing those facts. And would that be appropriate at this
- point? Yes. OK. Those are facts.
- Therefore, I move that on remand issue two, we adopt the suggested findings in the document presented
- to us by council. And under the circumstances, they would be numbered 15, 16, and 17. And shall I read
- those? Would that be appropriate? Sure. Okay.
- The finding on remand issue number 15 is subsection 18.3-3e of the zoning ordinance states in part that,
- quote, prior to the hearing, the applicant shall provide the administrator with certified mail receipts
- demonstrating that the required notices were delivered or returned as undeliverable, end quote. 16.
- The record does not include a certified mail receipt demonstrating that Republic Services of Indiana
- LP received notice of the board's September 1st, 2021 hearing on CDU 21.3. 17, number 17. The record
- does not include a certified mail receipt demonstrating that a written notice sent to Republic Services
- of Indiana LP of the board September 1st, 21.
- 2021 hearing on CDU was returned as undeliverable. That was a motion. Yes. Do we have a second? You're
- basically restating findings of facts that per the statute we did not have. Okay, then I'll second that.
- Okay, it's been moved and seconded to approve the findings as put together by Council and restated by
- board member Guy Lofman. A vote yes is a vote to approve the three findings as stated. Skip Daly. Yes.
- Yes. Pamela Davidson. Yes. Margaret Clements. Yes. Motion is approved four to zero.
- Well, certainly showing takes care of getting papers for us to sign. I would like to add a couple of
- things. I have some notes here. I believe. The busy a needs to presume. That the onus of statutory
- requirement to present to the BZ a has been met prior to the meeting. This
- to be confirmed for the record during the staff presentation, the board should insist on knowing that
- this requirement is taken care of moving forward. I noticed this evening you've been asking on each
- case. I have been asking on each case. I'm not objecting, I'm trying to, I just wondered. But the onus
- should be that before it comes to us that
- it should be confirmed by staff that has been taken care of. And if there is a question as to whether
- a property has or has not been in receipt of the proper notification, or if the property's a but or
- not, those matters should be handled prior to
- a petition happening in front of the board. So I'm just looking at one of these. I've got it. I've got
- our BZA agenda from the packet. And I happen to be looking at the morrow, because that's the last one
- we discussed. So are you suggesting that under exhibits,
- We should always request that we have proof of mailing to these people and is that what you're suggesting?
- Yes, I'm suggesting we should not hear a case. We should not allow a case to be heard by the board unless
- if we have somewhere, it might be there and I don't realize where it is, but unless if we know and it's confirmed
- during the presentation or prior to the presentation that notice, because we should never have to have
- this matter before us again. I think that in the introduction of evidence, that it's covered because
- Jackie says that everything has, and when we approve the agenda, everything has been properly noticed.
- And that is included in
- and then we move approval of that. I think she's saying that the notice has been properly, that the
- meeting has been properly noticed in the newspapers. I don't. I agree with what Mr. Loffman has said.
- I see. Well, then would it satisfy everyone if staff merely, instead of giving us proof of it, made
- a statement in each case. Confirmation, I'm not looking for proof. And I'm not suggesting staff is not
- doing their job in any way, shape or form. I'm just saying,
- we should have confirmation on the record moving forward so that a matter like this doesn't happen again
- and making the courts make decisions or having the courts send something back to us to make another
- decision. So just a statement like in our rules and at the opening of our meetings, a certification by staff
- cover us that they have received. But that would be on each case as it comes up. I would do it for the
- whole evening once. Okay. Now, let me, since we've got to head west here and wait for Mr. Schilling
- anyway, it's a great time to have this conversation. If we had done that in the Republic case, it would
- have showed that they didn't notify
- the non-abutting property owner. It would have showed they sent it, but they didn't get anything back.
- That was in the record. Yeah. What I'm saying is it would have shown that this property did not have
- a red receipt for this notification that was sent out, but then staff would have said, oh, hey, look,
- it doesn't apply anyhow because it doesn't have bought and it would have been on the record. Or if they
- said, oh, it didn't come back here, it didn't come back, sorry, you are not allowed to present in front
- of the board because boom, done, shut down. Well, I think this case is an anomaly in every single way.
- We have not had an issue and I'm never in favor of a
- solution in search of a problem. So if we've had problems with inadequate notice or lack of proper notice,
- it'd be one thing. How many percentages of our cases go to a court stage? One at the most. Pardon? One
- percent at the most. Right. So I think suggesting that we're in search of
- a solution to something that's not a problem. It is a problem because this is a ploy by somebody that
- doesn't like a decision that was made to come back and say, well, we didn't receive it. They're looking
- for a loophole. I want to eliminate
- the loophole from the future and by requiring the evidence that somebody did what they had to do statutorily
- before they come to us to require that confirmation by staff, I think it's a no-brainer. I don't think
- it's us going out looking for anything. I think this broad attention, I think it's a bell that we shouldn't
- unring at this point. I think it's an anomaly.
- But because of the way the properties were set up and so on. Because we just have not had this situation.
- Is this the only case like this that we've had in the whole time? That's why I'm saying it's a solution
- in search of a problem. And that's fine. Because factually, if there's a problem, one of the petitioners
- or the parties will bring it up. And it's up to them to say, wait a minute, wait a minute,
- wait the flag, I didn't get the notice. So it's like anything. Sure. It's like anything. But I also
- think that
- having that confirmation from staff prior to would be less of a time constraint than the amount of challenge
- and resistance you're putting up right now. Oh, my. I don't agree with you, Skip. Is that OK?
- Is that OK? They're not agreeing with me? It's absolutely OK. I'm glad. It's OK. Because it just has-
- That's why there's five of us. That's right. It's just not
- I trust the staff professionally to do notice, err on the side of the fact that we didn't have the proof.
- I wouldn't have said to somebody, you're out. You can't pursue it anymore because they can always go
- to court and pursue it and say, was it germane? Was it not germane? I mean, there's another avenue beyond
- us, for sure.
- assume the staff is so professional. It does such an amazing job with everything to impute that maybe
- they're not doing an important aspect. Well, notices or I just, I'm just searching for why it's in your
- brain. I'm searching for that. Let me ask another question that's notices are sent out.
- And in this case, notice was sent to Republican. I'm, you know, you read the statute again, you say,
- wait a minute, if a neighbor doesn't respond, the post office, I guess the question, how was the notice
- sent? Was it sent by, do we know whether? May I ask you, Director, a question real quick?
- certified mail okay was sent by certified we may ask you a question real quick does staff when they're
- doing this work already have to get confirmation that these notices have been sent out and received
- and all of that so i'll answer in the case of the republic services case so they uh the bed for recycling
- case they sent
- a certificate of mailing, which is slightly different than certified mail. Certificate of mailing is
- when you prove that you sent the letters, but you do not have proof that they were received. But in
- order to be heard before the board, does the staff need proof of receipt? And is that what's normally
- provided to staff?
- in the specific prior ordinance on conditional uses. What Mr Schilling quoted was not the CDO. It's
- the prior ordinance there. He quoted that they needed to show that it was either delivered or returned
- as undeliverable. That would not occur with just the certificate of mailing process because that's only
- a notice that the USPS had the letters in their hands and that it was sent
- not that it was received. But what does our so are the current ordinance states what the current county
- ordinance states that somebody has to provide staff. Red receipts or. There's two different things here,
- but I don't want to conflate the issues because we're still on the record. So there's the rules of procedure
- and then there's the ordinance.
- So the rules of procedure do state how notice should be given in the Bedford recycling case though.
- They also were in the ordinance itself, not just the rules of procedure. Yes.
- But to your point, skip by the next meeting. I want to make sure I'm clear with what has happened with
- this case and make sure we don't have this happen again. We do check that notice is sent every single
- time. Absolutely. And this was by no means a slap in the face. It seems like it was turned as if my
- words were
- derogatory towards staff which in no way shape or form was it all I'm suggesting is you've already done
- the work let's get it on the record that it's confirmed during the hearing or before it's even presented
- to us that's that's my only suggestion okay does that make sense or yeah we can we can do something
- like that I mean I mean this this got turned into
- Meet me against the staff. That's absolutely not what I'm saying. I'm saying you're already doing the
- work. Let's just get it on the record that it's done and hopefully that will curtail this problem from
- happening again. Okay, excellent. Good work. Good work.
- Skip, I didn't look at it that way. I just said the staff is very professional and I trust them to do,
- they're professional in everything that they do. So it's just not something that I would worry about
- at all because I... Being professional is not a question here. What is on question is the board should
- have confirmation
- that everything is, all the boxes are checked. All the other boxes are getting checked. We're making
- sure folks are signing their name. We're making sure folks are getting sworn in. We're making sure A,
- B, C, D, E, F, and G. Why skip H? Let's just make sure everything is on the record in order for us to
- hear the testimony. Well, I'm glad we've had this chat.
- While we're waiting, we aren't going to finish it tonight. I'm going to look at the ordinance and the
- rules myself. And I had no idea it was a different rule if it's a conditional use. I mean, there's a
- trap for the unwary, as we like to say, in ordinances and statutes.
- We've had a lot done tonight and including discussion of this tough stuff. And that's right. Thank you,
- Mr. Schelling for a very helpful, useful presentation of our choices and walking us through it. Dave,
- do you need one side copy? And is it all there? You can throw those away. OK, all right. Yeah, I would
- just like to
- go back to something that was said earlier, and that was how grateful I was that you investigated so
- thoroughly that abutment and you presented evidence into the record that was important, and I just really
- appreciated that skill. Every board like this needs a stickler, and we're glad it's you. Just to be clear,
- No new evidence presented tonight. No new evidence. The eight times in the existing evidence, the critical.
- That's right. I stated that three times on the record. Yeah. I just muddled it up. Yeah, but aren't
- we adjourned? All right. Let's go ahead and put this meeting to arrest. All right. Thanks, everyone.
- Thank you.