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use variants that has been withdrawn.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and with the VAR-25-49 withdrawn.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.