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BOARD OF ZONING APPEALS
Regular Meeting
September 17, 2003
M I N U T E S
The regular meeting of the Board of Zoning Appeals was held on September 17, 2003 at 7:00 p.m. in the Porter County Administration Center, 155 Indiana Avenue, Valparaiso, Indiana.
Those members present were Marvin Brickner, Richard Burns, Richard Hudson and Robert Detert. Staff members present were Robert W. Thompson Jr., Attorney Lily Schaefer and Toni Byers.
Mr. Hudson moved to waive reading of the minutes for the August 20th BZA meeting and to approve them as received in the mail. Mr. Burns seconded the motion, which carried on a 4-0 voice vote.
Pending Business:
Case 73-V-34. Richard Wendt, 314 N. 625 W., Valparaiso, seeking an extension of a Temporary Certificate of Occupancy for a mobile home on CR 625 W., between CR 300 N. and CR 350 N., in Union Township.
Mr. Thompson read a letter from the petitioner requesting a renewal of this TCO.
Mr. Detert asked if there have been any complaints.
Mr. Thompson stated that there have been none.
Mr. Brickner stated that this is 30 years and it's been a long time. He asked if that was the original intent of this.
Mr. Detert stated that this is probably one of the oldest ones we have. He stated that we can have staff make a visit or we can have him come in next meeting.
Mr. Brickner stated that he would like to know what's transpired in those 30 years that the trailer has been there.
Mr. Brickner moved to continue Case 73-V-34 to the 10-15-03 meeting, with staff to visit the property. Mr. Burns seconded the motion, which carried on a 4-0 voice vote.
Case 83-V-28. John Pallone, 264 E. U.S. Hwy 6, Valparaiso, seeking an extension of a Temporary Certificate of Occupancy for a mobile home on the South side of U.S. Hwy 6, between Mander Road and the B&O Railroad overpass in Jackson Township.
Mr. Thompson read a letter from the petitioner requesting a renewal of this TCO.
Mr. Burns asked if there have been any complaints.
Mr. Thompson stated that there have been none.
Mr. Burns moved to approve Case 83-V-28 for 1 year. Mr. Brickner seconded the motion, which carried on a 4-0 roll call vote.
Case 84-V-21. Sally Prater, 1401 S. 600 E., Kouts, seeking an extension of a Temporary Certificate of Occupancy for a mobile home on CR 600 E., between CR 1400 S. and CR 1300 S., in Pleasant Township.
Mr. Thompson read a letter from the petitioner requesting a renewal of this TCO.
Mr. Brickner asked if there has been any opposition.
Mr. Thompson stated, no.
Mr. Brickner moved to approve Case 84-V-21 for 1 year. Mr. Burns seconded the motion, which carried on a 4-0 roll call vote.
Case 90-V-26. Irvin Morgan, 1240 S. SR 49, Kouts, seeking an extension of a Temporary Certificate of Occupancy for a mobile home on SR 49, between CR 1200 S. and the Kankakee River, in Pleasant Township.
Mr. Thompson read a letter from the petitioner requesting a renewal of this TCO.
Mr. Burns moved to approve Case 90-V-26 for 1 year. Mr. Brickner seconded the motion, which carried on a 4-0 roll call vote.
Case 99-V-53. Alan Hurst, 988 S. 250 W., Hebron, seeking an extension of a Temporary Certificate of Occupancy for a mobile home on the West side of CR 250 W. between CR 900 S. and CR 1000 S., in Boone Township.
Mr. Thompson read a letter from the petitioner requesting a renewal of this TCO.
Mr. Burns asked if there have been any complaints.
Mr. Thompson stated that there have been none.
Mr. Burns moved to approve Case 99-V-53 for 1 year. Mr. Brickner seconded the motion, which carried on a 4-0 roll call vote.
Case 01-V-29. Ray & Rosalie Stone, 1601 Sanibel Ct., Valparaiso, seeking renewal of a Temporary Certificate of Occupancy for a mobile home on the South side of CR 300 S., between CR 300 E. and CR 500 E., in Morgan Township.
Mr. Thompson read a letter from the petitioners requesting a renewal of this TCO.
Mr. Brickner asked if there have been any complaints.
Mr. Thompson stated that there have been none.
Mr. Brickner moved to approve Case 01-V-29 for 1 year. Mr. Burns seconded the motion, which carried on a 4-0 roll call vote.
Case 02-V-29. Millie Rabatine, 173 E. 600 S., Valparaiso, seeking renewal of a Temporary Certificate of Occupancy for a mobile home on the North side of CR 600 S., between CR 150 E. and S. Baum's Bridge Road, in Morgan Township.
Mr. Thompson stated that there has been no correspondence regarding this.
Mr. Burns moved to send a certified letter to the petitioner and to continue this case to the 10-15-03 meeting. Mr. Brickner seconded the motion, which carried on a 4-0 roll call vote.
Case 93-UV-9. William Joll, 542 W. 450 S., seeking a renewal of a Use Variance permitting a sewing business, on the South side of CR 450 S., between CR 500 W. and CR 600 W., in Porter Township. (This case was continued from the 8-20-03 meeting. This is the last renewal available on this case.)
Mr. Thompson stated that a certified letter was sent to the petitioner and was received, but that no one is in attendance regarding this case.
Mr. Brickner moved to deny Case 93-UV-9. Mr. Burns seconded the motion, which carried on a 4-0 roll call vote.
Case 03-V-33. Petition of Greg Kusmierek, 1203 Meadowglen, Valparaiso, seeking a Variance to permit a 2,000 square foot accessory structure for personal storage, to be located at 84 E. Lamplight Lane, in Morgan Township. (This case was continued from the 8-20-03 meeting.)
Mr. Detert stated that the petitioner has withdrawn this case and will not be building the accessory structure.
Case 01-UV-7. Michael Stephens, 972 N. County Line Road, Westville, seeking an extension of a Use Variance permitting a kennel for service dogs for the handicapped, located on the West side of Porter-LaPorte County Line Road, between CR 950 N. and CR 1000 N., in Jackson Township. (This is the last renewal available on this case.)
Lawrence McAfee stated that I'm a veterinarian in Valparaiso. He stated that I have been Mike's veterinarian for over 20 years. He stated that I knew him relatively well before his accident. He stated that I've gotten to know him very well since his accident. He stated that I have a 56-year-old brother who is physically challenged. He stated that he is paralyzed from the waist down, so I empathize very strongly with what Mike has gone through and I admire him very much for his strength and for the way that he has gotten on with his life. He stated that Mike has a dog kennel and that is why I'm here tonight. He stated that I'm the veterinarian of his dog kennel and obviously he loves animals with a passion and he takes care of his animals very well. He stated that he keeps up to date with vaccines and he has spotless kennels. He stated that I'm out at his facility a minimum of twice a year. He stated that sometimes I'll be there three or four times a year. He stated that he probably takes better care of his dogs than I do of my dogs. He stated that what he is asking for is, I guess, a special Use Variance if he is to get more than 1 year. He stated that I would very much like to appeal to the Board to grant him that. He stated that if this is a special usage variance that you grant him, I would be, if part of this granting him an extended usage would involve my doing a deposition or a statement of fact in front of you annually, sending you a letter annually that he is maintaining a proper facility, a clean facility, a sterile facility, humane treatment of his animals, I would be more than happy to do that for the Board.
Mike Stephens stated that I am here for the petition for the use variance to run a kennel, primarily for the raising of service dogs, dogs to be donated for service dogs. He stated that things have changed a lot since our first petition to the Board. He stated that we've recently purchased a Labrador retriever puppy that has impeccable background, and, in the past, we've had problems with their health being accepted as far as, uh…like when we donate our pups to different service organizations, they have a very strict guidelines of what they accept. He stated that the dog has to be, the parents of the pup that you're donating has to be AKC registered or equivalent, they have to be OFA certified, which is Orthopedic Foundation for Animals. He stated that they rate their hips, whether they're fair, good or excellent, and the puppy we have that we just purchased has excellent hips on both sides of the pedigree. He stated that my wife has a Jack Russell that I took to obedience class and also to good citizens class, both 6-week courses, and I got him certified as a therapy dog, so I could take him into health care facilities. He stated that I talked to Janet Pakish at Porter Memorial Hospital, she's a patient advocate, and I approached her about a pet therapy program they may have and they didn't have one, so I explained to her what it was, and she was very eager to get one started there, and she started researching immediately. He stated that they have everything approved at the hospital and the only thing they are waiting on is the approval by the ISDH, the Indiana State Health Department or something, and I plan on taking the Jack Russell into different
facilities, whether it be Porter Memorial Hospital or like the Willows, just for like pet therapy. He stated that it's really an uplifting experience and it shows recovery time for patients is dramatically reduced by having pet therapy.
Mr. Brickner asked how many dogs you have now?
Mr. Stephens stated, I have six.
Mr. Brickner asked, are these yellow Labs.
Mr. Stephens stated, black and yellow. He stated that I have four Labs, and I have three yellow Labs and one black Lab, and then I have two Jack Russells.
Mr. Brickner stated, we asked that you plant some trees, I think. He asked, have you planted the trees? He stated that I saw the stockade fence and everything else looks really good. He asked, have you planted the trees yet?
Mr. Stephens stated that the trees were planted before the last meeting.
Mr. Brickner stated, in my opinion, the place looks a thousand percent better than the first time I went out there and he does have a stockade fence around the back part of the pen and he's doing a lot of landscaping and I did talk to some neighbors and I heard no complaints, so I have no problem with maybe giving three years of a Use Variance.
Dr. McAfee stated that I'm a veterinarian and I wish my dogs lived in his pens. He stated, they are immaculate.
Mr. Hudson stated that I have no problem with it. He stated, I'd be willing to go for five years.
Mr. Detert stated, I have a couple of questions. He asked, did you have a dog killed recently, running loose?
Mr. Stephens stated that he wasn't running loose. He stated that the answer to your question is yes, he was killed. He stated that it was very sad. He stated, I was working. He stated, I always work on the North property with the dogs, off my driveway, because I don't get around on the grass very well, and our new neighbors that we have across the street, they have a German shepherd, and he's male, also, and they kind of bark back and forth, and I had him out one night, I was working with him retrieving skills and working with his sits and heels and the dog let out a cry and he saw, it was just dusk, just turning dark, and he looked up and saw the neighbors walking around the front of the house and he thought he saw a dog and he took off and I was just really crushed when he got killed.
Mr. Brickner asked, did a car hit him?
Mr. Stephens stated, it was a large car, yeah, it was a Jeep.
Mr. Detert stated, the last time you were here, there was some controversy all about you selling pups. He asked, are you selling pups, as opposed to those going to the handicapped?
Mr. Stephens stated, no. He stated, I haven't sold any pups. He stated that the reason why those pups were sold, originally, last time as pets and hunting companion was because we weren't informed of all the strict guidelines in donating puppies to Paws with a Cause or different organizations, and these organizations, to train and place a dog out, one dog, is over $12,000, so they really want to make sure they're getting a healthy dog with pedigrees.
Mr. Detert asked, what happens to the dogs that don't make the training, flunk the training. He asked, what do you do with them, or haven't you had any flunk?
Mr. Stephens stated, no. He stated that we, there are two things, you can either be a foster parent for the dog and you basically raise the dog until it's 14 months old and then you donate you, or you can donate it at 8 weeks. He stated that there are very strict guidelines to raise a dog, to foster the dog you have to do a lot of socializing with the dog. He stated that you have to take it out at a certain age to a ballpark, introduce it to livestock. He stated that there is all kinds of things; they want the dog really socialized.
Mr. Detert asked, have there been any complaints?
Mr. Thompson stated, I don't have any in the file here, listed.
Mr. Stephens stated that I call every so often to find out if anybody has called and complained and I haven't heard any complaints. He stated that nobody's called me about the dogs.
Mr. Hudson moved to approve Case 01-UV-7 for 5 years.
Discussion:
Joseph Young stated that I live about 325 feet behind Mike, and I really support him in his goals here, but, as a homeowner in that area, I think it's imperative that I speak up for some kind of restrictions on time. He stated for Mike's condition and his desire to do these things, I think it's fantastic. He stated that, I think that…have you sold any dogs at all?
Mr. Stephens stated, I have not.
Mr. Young stated, I would suggest that if you consider extending this on, that you leave the same restrictions that were there before, the curfew. He stated that I think the time period should be restricted to no more than two years and the next time he comes in he would come in under a public hearing.
Mr. Detert stated that the next time will be a public hearing, because this is the last renewal.
Mr. Young stated, and also, I was woken up the night before last at 4 o'clock in the morning with a dog barking in the back of the yard. He stated, I can live with that. He stated, I can talk to Mike if I have to and I want you to know that there are some noises and there are some people have legitimate concerns with something progressing from a primarily gift dog to (inaudible).
Mr. Detert stated, you really should call in if you have complaints about barking. He stated that nobody's called in.
Mary Beech, 3874 N. 350 E., stated, I just want to say one thing that I didn't think was clarified about the selling of the puppies. She stated that when he does raise puppies, they don't take all the puppies. She stated that they only accept so many puppies out of a litter, one or two out of what might be a litter of six. She stated that he also needs the sale of the puppies, and he sells them for quality and to good homes, that's to finance running the kennel.
Mr. Burns stated that I'm in favor of this, but I have second thoughts about five years after some of the neighbors' statements. He stated that I would agree to two or three. He stated that I think maybe 5 would be stretching it. He stated, I don't have a problem with it, but there are some issues.
Mr. Hudson moved to approve Case 01-UV-7 for three years, with the same restrictions. Mr. Burns seconded the motion, which carried on a 4-0 roll call vote.
Public Hearings:
At this time, Mr. Detert read the rules of conduct for a public hearing.
Case 03-V-38. Petition of Verne & Karen Lee, 414 Nantucket Rd., Valparaiso, seeking a Variance to permit a reduction in the required minimum front-yard setback from 75 feet to the centerline of the road to 65 feet to the centerline of the road to build an enclosed porch, to be located at 414 Nantucket Road, in Portage Township.
Mr. Lee stated that I am here to ask the Board to grant our petition to build an enclosed porch at this location. He stated that we purchased this house in 1993. He stated that we are both
professional people and we regard our house as a home that we intend to live in at least for the next 10 years, and we want to put a substantial investment in it. He stated that the porch is, although it may appear large for the dimensions, it's actually relatively small when you consider the fact that we're on a corner lot and on this corner lot this porch will not prove any impedence to anybody trying to look or turn onto either Nantucket Road or Oxbow Road. He stated that we think not only could this porch add value to our home, but it would also provide a safe place for our family to view our children playing in the yard, and also the children playing across the street, and having lived on Nantucket Road for the last 10 years, it is a nice neighborhood, and I would welcome the opportunity to add to it.
No one spoke in favor of this petition.
No one spoke against this petition.
The public hearing was then closed.
Mr. Burns stated that I really don't have a problem with this case. He stated that I really don't see any major issues.
Mr. Hudson stated that I'm really not sure why Nantucket was a 75-foot right-of-way.
Mr. Burns stated, it's not going to cause any visibility issues at all.
Mr. Brickner stated, I have no problem with it. He stated, it's got two front yards, which really causes a problem with the setback, and as long as it doesn't sit more forward than the rest of the homes in the area and the staff says it doesn't, I have no problems.
Mr. Burns moved to approve Case 03-V-38, incorporating the petitioner's proposed findings of fact, said findings being in the file. Mr. Hudson seconded the motion, which carried on the following ballot vote:
Brickner - Yes Burns - Yes Hudson - Yes
Detert - Yes
Case 03-V-39. Petition of Dale & Candy Johns, 840 N. 625 E., Westville, seeking a Variance to permit a reduction in the required minimum side-yard setback from 13 feet to 5 and 6 feet to build an attached garage, to be located at 840 N. 625 E., in Jackson Township.
Mr. Johns stated that we've lived in our current home for three years and we've been saving up to add an attached garage and it turns out the attached garage I want is bigger than what is allowed for the 13-foot setback and we'd like to change it to 6 and 5 respectively.
No one spoke in favor of this petition.
No one spoke against this petition.
The public hearing was then closed.
Mr. Hudson asked how big the garage is.
Mr. Johns stated that it's going to be 30 by 30
Mr. Hudson stated, I don't have a problem with it.
Mr. Brickner asked, how big is your property there?
Mr. Johns stated, it's 130 wide, that's how you get the 13 feet for the 10 percent setback. He stated that it's 4 acres long.
Mr. Brickner asked, and your closest neighbor on the side with the garage is how far away?
Mr. Johns stated that they're approximately 100 feet.
Mr. Brickner asked, and you haven't had any objection from them?
Mr. Johns stated, no.
Mr. Brickner stated, I don't have any problem with it.
Mr. Burns stated, I don't' have any problem.
Mr. Brickner moved to approve Case 03-V-39, incorporating the petitioners' proposed findings of fact, said findings being in the file. Mr. Hudson seconded the motion, which carried on the following ballot vote:
Brickner - Yes Burns - Yes Hudson - Yes
Detert - Yes
Case 03-V-40. Petition of Mike & Stephanie Choucalas, 937-3 N. 350 E., Chesterton, seeking a Variance to permit a detached garage in the front yard, to be located on the East side of CR 350 E., between CR 900 N. and the Indiana Toll Road, in Jackson Township.
Mr. Choucalas stated, I want a variance for a detached garage, which is going to be out in the front yard about 10 feet. He stated that it's 37 by 25.
No one spoke in favor of this petition.
No one spoke against this petition.
The public hearing was then closed.
Mr. Burns asked why can't you place it on the side of the house.
Mr. Choucalas stated that the whole house sits catty-corner on the yard. He stated that there is a pool in the back and on the other side is the septic, where the tanks are.
Mr. Burns asked how much property do you have?
Mr. Choucalas stated that it's 1.3 acres. He stated that we are on a family lot of about 30 acres.
Mr. Burns asked, is the garage going to be completely in the front yard?
Mr. Choucalas stated, no, actually it's going to be sticking out in front by about 10 feet.
Mr. Brickner asked, how big is the garage?
Mr. Choucalas stated that it's 37 by 25.
Mr. Brickner stated, I don't have a problem with 10 feet.
Mr. Hudson moved to approve Case 03-V-40, incorporating the petitioners' proposed findings of fact, said findings being in the file. Mr. Burns seconded the motion, which carried on the following ballot vote:
Brickner - Yes Burns - Yes Hudson - Yes
Detert - Yes
Case 03-V-41. Petition of Harvest Homes, LLC, c/o Todd A. Leeth, Hoeppner Wagner & Evans LLP, 103 E. Lincolnway, Valparaiso, seeking a Variance to permit a reduction in the minimum required front-yard setback from 60 feet from the centerline of the road to 54.5 feet from the centerline to allow for construction of an attached garage, to be located on the Northeast corner of Clarendon Court and Brighton Lane, in Center Township.
Mr. Leeth stated that I am here on behalf of your petitioner tonight, Harvest Homes. He stated, we're asking for a reduction in the front-yard setback on a home currently under construction on Lot 217 in Emerald Ridge subdivision. He stated, I'll get into a little bit of the facts that give rise to the need for this Variance, but I think you'll see how it came out from some unusual circumstances which the petitioner certainly hopes never again will be repeated, given the facts that I'll share with you. He stated, that, however, isn't, in my opinion, the real purpose of your decision tonight. He stated, no matter how the need for the variance arises, I think you should look to the circumstances of what we have there at the subdivision and particularly the corner of Brighton Lane and Clarendon Court, where
this property is located. He stated, I passed out before the hearing began, a series of drawings and exhibits showing the home, the exhibit A, the top sheet, is the home as it is today. He stated that Exhibit C is actually the Duneland Group engineering and surveying surveyor location report that shows the house overlaid on Lot 127 at the corner of Clarendon Court and Brighton Lane. He stated that the home faces Brighton Lane and as you can see from Exhibit A, the garage loads from the South side, off of Clarendon Court, an unusually configured home that's located on a corner lot, again, two circumstances that I think are somewhat unique, in and of themselves. He stated, also, in the fact, you'll note in the photographs on Exhibit D, because it is a corner lot it is our opinion that the aesthetic nature of a front-yard encroachment into the setback will be lessened because it is on a corner lot, in other words, it won't be, if you will, sticking out from both the North and the South sides along Brighton Lane; it only has one neighboring property. He stated that when those homes are developed not, if you will, be in line with, not sticking out in the center of the block, if you will. He stated, secondly, the visibility at the intersection is shown in photographs 1 and 2 on Exhibit D. He stated that I visited this property three times, most recently this afternoon. He stated that there is absolutely no way that a car backing out of the garage, onto Clarendon Court, will in any way obstruct visibility at that intersection. He stated that if you extend the centerline of Brighton Lane to the South, into the intersection, there is approximately 30 feet to the rear of a car that would have exited out of the driveway for this home. He stated that the photographs actually show my blue Dodge Intrepid. He stated that you can't see that Dodge Intrepid from those photographs, partly because they're obscured from some vegetation and some soil spoil that is at that location, but if it were in any way blocking the intersection, that would be apparent from those photographs; it is not. He stated, thirdly, only approximately 20 feet of the frontage of the home that faces Brighton Lane is encroaching part; the garage portion is offset from the main structure, which is conforming. He stated, that, gentlemen, I believe, gives you the clear sense that there is no harm to the neighborhood or locality or the neighboring property owners if you grant this variance. He stated, as you know, I appear in front of you frequently, and I know of your sensitivity with regard to how these types of variances are created. He stated, the home was started as a spec home, in other words, there was no home buyer for the home when it was constructed; it was merely to be built for the inventory of Harvest Homes. He stated, on June 23rd of this year, the developer of the subdivision granted Harvest Homes their building plan approval to construct the home, showing conforming setbacks, similar to the lot configuration that you see on Exhibit A, only the home was pushed further to the East, and I believe also to the South, but certainly to the East so that the conforming setbacks were met. He stated, that was on the 23rd of June. He stated, on the 25th of June, the County issued a building permit. He stated, on the 26th of June, the home sold. He stated, the home buyer then requested that Harvest Homes
modify the building plans to what is shown on Exhibit B. He stated that Exhibit B modifies the garage layout of the home; it also changes the loading of the garage, or the driveway, at least, out to Brighton Lane, rather than Clarendon Court. He stated, on June 27th, the home, according to Exhibit B, was staked by Harvest Homes. He stated, June 30th, the home buyer changed their mind and wished to return to the plan of Exhibit A. He stated that the following day, the basement was dug. He stated, a lot happened in a week. He stated, what happened was, a mistake was made. He stated, the home, as it was staked, was not corrected to the proper location between those two changes back from A to B to back to A; a simple mistake was made. He stated, again, we ask that you look not to the mistake, but to the harm caused; we don't believe there is any, and therefore, the practical difficulties and standards that you look to are clearly met, and, therefore, we ask your approval of this variance. He stated, with me are representatives of Harvest Homes to answer any questions that you or the public might have that I can't answer. He stated, thank you.
Robert Johnson, 3651 Rosedale Ct., stated that I'm in favor of this variance here. He stated, we purchased our home from Harvest Homes approximately one month ago. He stated, we have had nothing but great success with the way they built our house - very little problems with it whatsoever. He stated, they use the highest quality standards and they did it according to our specifications. He stated, my feeling is, and I've taken a look at the house myself, I don't see where there's any harm in the way it's laid out at present. He stated that it's aesthetically appealing to the neighborhood and it's definitely a desirable house.
James and Vanessa Carter, 3254 Brighton Lane, stated that we submitted a letter to you with our concerns.
Mr. Thompson read the letter from the Carters. The letter is in the file.
Mr. Leeth stated, I think the concerns raised in the letter I addressed in my earlier comments. He stated, as I indicated, we're not asking you to grant the variance because of the circumstances that gave rise to the variance. He stated that the variance wasn't brought to the County's attention until we filed the petition. He stated that it had escaped all the inspections to date. He stated that Harvest Homes discovered the non-conformity, contacted my office the following day and we decided at that point in time to file the variance. He stated that it was at that time that the County became aware of the problem, if you will, and we're here, asking for the relief that your ordinance allows us. He stated, we're not asking to change this. He stated, we're not asking to have this carry over to other lots or create a precedence - it doesn't. He stated that it expressly doesn't under state law. He stated that the granting of a variance has no precedential value to any other lot or petitioner. He
stated, what you should be looking at, I think, should be evident from the photographs that we submitted to you. He stated that there is no harm, due, in fact, to the fact that this is a corner lot. He stated that the variance is 5.5 feet, approximately. He stated that the portion of the garage that extends toward the street, Brighton Lane, we also think that the fact that Clarendon Court is a short street, it's only a block long. He stated that this lot and the backing lot, if you will, create the entire length of Clarendon Court, so there's not going to be the significance that you have, if you will, high-speed traffic coming to the intersection. He stated, also, the intersection of Clarendon Court and Brighton Lane is not a through intersection for either street. He stated that it's a looped intersection, if you will, 90-degree turn, so you are going to have slow vehicular traffic in that location to begin with. He stated, for all those reasons, we think the variance is well-suited for granting.
Mr. Carter stated, well, that's good and fine, but we have to look at the house for the next 20 years. He stated, we have to live with it. He stated, no one else here is going to have to live with it - we do. He stated, the other point is, we were never legally notified that this meeting was going to occur, and I think that's wrong.
Mr. Detert asked, are you within 300 feet?
Mr. Leeth stated that it's R-1, so it's 150 feet.
Mr. Carter stated, right across the street.
Mr. Thompson asked, may I ask who built your home?
Mr. Carter stated, Good Homes Inc. He stated that a letter was sent to him. He stated that Harvest Homes contacted him.
Mr. Detert stated, but you were never notified.
Mr. Carter stated, no.
Mr. Detert stated, but you are here tonight, so you did hear about it, correct?
Mr. Carter stated, well, we never received a letter. He stated, Harvest Homes had contacted him in early August in regards to if he had any problems, and he referred them to us because he did not own the house.
Mr. Detert stated, the attorney can correct me if I'm wrong, but my understanding of the law is if you come and you show up you have received notice because you're here.
Mr. Leeth stated, well, I believe that's a true statement, but remember what we as a petitioner are obligated to do. He stated that
we are obligated to search the tax rolls to give notice, and that's what we've done. He stated that the tax records haven't caught up with your purchase and came up with your builder's name.
Mr. Detert stated, I remember a situation I was in when I sold real estate and that happened and it went through a judge and the judge said it was the sender's or petitioner's obligation to notify the people that were there, even though they weren't on the records at that time.
Mr. Leeth stated, that would not be true in this circumstance, Mr. Detert, because your rules specifically say the tax records are what we rely upon and we are not obligated to give any inquiry notice. He stated, I believe your counsel will tell you that's what your rules say.
Mr. Carter stated, I was just wondering what Plan B is if this doesn't go through.
Mr. Detert stated, if there are any legal ramifications, regardless of what this Board does, then you would have to, I assume, go to court.
Mr. Carter stated, that's not what I'm saying. He stated that their whole plan is to get the Variance. He stated, I don't know what modifications they plan to make on the house if they don't get the Variance, or is it all resting on this?
Mr. Detert stated, he spoke to that, and you're welcome to my set of the drawings, but you heard what he said: The garage is going to go over the building line because they added the third garage.
The public hearing was then closed.
Mr. Hudson stated, I have no comment right now.
Mr. Brickner asked, site Plan A is what the building is today?
Mr. Leeth stated, it is, yes.
Mr. Brickner stated, I thought they said that Clarendon Court is where the setback was in violation. He stated that it looks to me like it's Brighton…is it Brighton Lane or Clarendon Court?
Mr. Leeth stated, Brighton Lane is the front yard and that's where the variance is needed.
Mr. Brickner stated, that's what you're talking about, this part that sits in front on Brighton Lane.
Mr. Leeth stated, the original plan was as Exhibit A shows, only conforming with the setbacks, then we went with B, then we came back to A, and the house shifted once, but it didn't shift twice, and when the garage came back on the other side, if you will, then that's what created the 5.5 foot encroachment.
Mr. Brickner asked, the driveway's the same coming in from Clarendon, right?
Mr. Leeth stated, the driveway shifted back and forth, as well.
Mr. Brickner asked, yeah, but where is it now?
Mr. Leeth stated, Clarendon Court.
Mr. Brickner asked, so this is a 2.5 car garage now, is that what it is?
Mr. Leeth stated, three.
Mr. Brickner stated, so all the access and egress is from Clarendon Court.
Mr. Leeth stated, correct.
Mr. Brickner stated, it says that they were notified to stop construction on two occasions and they didn't do it. He asked, is that the way that you understand it, that Harvest Homes was notified to stop construction, but they went on ahead.
Mr. Leeth stated, I don't believe that's accurate. He stated, I believe they were asked once, and didn't stop is what perhaps…after the second time, they did. He stated, the confusion was, I am told, that the communication to stop work was verbal and it was received by my client and his staff to stop work that would affect the encroachment, but they continued to roof, which I think would be allowed anyhow, to protect the work, in any regard. He stated, but, also, there was some dry walling by some sub-contractors inside, as well, and nowhere near the garage encroachment.
Mr. Brickner stated, so, to your knowledge, was the foundation for this garage already in the ground when they were notified?
Mr. Leeth stated, by the time the discovery was made at the end of July or the first part of August, perhaps August 1st, the home was fully framed, foundation poured, frame up, roof was partially…the structure was there and they were finishing the roofing, so it was significantly complete, 50 percent.
Mr. Detert asked, Bob, wouldn't that have been red-tagged?
Mr. Thompson stated, Ray did stop by and give a red tag.
Mr. Leeth stated, there was a verbal, then the dry walling and the roofing continued. He stated, that was apparently a miscommunication between Mr. Weltz and the onsite construction company, and then the red tag came.
Mr. Detert stated, I'm confused. He stated, if Mr. Weltz said stop, how can you say that's miscommunication? He stated, stop is stop.
Mr. Leeth stated, I'm not sure that he said stop. He stated, I don't know. He stated, but, there was miscommunication. He stated, there was no intent to do something other than what Mr. Weltz asked for. He stated, after the red tag came, there was a meeting, I understand between Harvest Homes and Mr. Weltz to see if we couldn't continue to work on the portions of the home that were not affected by the encroachment. He stated that the answer was no, and there has been no work since the red tag, the second request to stop.
Mr. Burns stated, I have the same question: Why didn't they stop?
Mr. Detert stated, I have an additional comment. He stated, we get these overages or intrusions on setbacks and from what you said, I gathered that Harvest Homes does their own staking; they don't hire an engineer, and we don't force them to hire an engineer, but I cannot understand, for the life of me, I understand that on the permit they submitted they were only 2 feet away, they are on a corner lot - it's always a problem on a corner lot for everybody - that they didn't use more caution. He stated, it just, I can't comprehend that. He stated, a guy that's been in business a long time, built a lot of houses, and how can he goof up like that?
Mr. Leeth stated, the surveyor in this instance, under these circumstances, a surveyor wouldn't have helped, because the staking of the lot, then we had another change, and Harvest Homes thought that they were, when the second change or the third time that the home was located, thought that they were where the original staking was, which would have been by a surveyor. He stated that the staking was accurate; it was the change of the house plans on that staking that caused the problem. He stated, it was the shifting back and forth.
Mr. Burns stated, well, they should have know that. He stated, if they are going to change the plan, as a builder, they should have known that.
Mr. Leeth stated, absolutely.
Mr. Detert stated, that's my point. He stated, when they're shifting back and forth and they know they're within 2 feet, to me, that would throw up a red flag and say, hey, you better stop and take a look.
Mr. Leeth stated, to that, the petitioner has no defense. He asked, should they have caught this? He stated, absolutely, but as I tried to lay out the scenario of, they started to lay out the house, the permit was issued, the developer gave his approvals - all of that was happening. He stated, the house was purchased, the plans were changed - all of that happened within 7 days, literally 7 days, working backwards from when the foundation was dug to when the home was sold in 7 days, so, a lot happened in that 7 days, and to answer your question, absolutely it should have been caught. He stated, there's no question it should have been caught, and had it been surveyed, I think the same situation would have presented itself, had we had a surveyor stake the original location for the lot.
Mr. Burns stated, no, but you would have had a surveyor come back to change it. He stated that if there was a change in the design, a surveyor should have come back to restake it, and it would have been caught. He stated, that's how it's supposed to work.
Mr. Leeth stated, I understand. He stated, it's also supposed to work that we catch it. He stated, I guess I'm telling you, I don't think, had the lot originally been staked by a surveyor, I don't think it would have changed the circumstances. He stated, requiring all homes to be survey staked before construction and building permits are issued, is not going to eliminate front yard variance requests.
Mr. Detert stated, I looked at it, and I'm not too happy with it.
Mr. Leeth stated, let me tell you: Harvest Homes and their customer are not happy. He stated, that's the unfortunate thing - we have a customer who now has what they want, but there's an encroachment, and we have to deal with that customer if your decision is negative tonight, as well, and how we handle your denial, is, frankly, largely dictated by that customer, the future homeowner of Lot 217. He stated, I guess, as I presented the case tonight, I appreciate your concern as to how we made a mistake, and I tried to address that because we knew it was always a concern of yours, but if you focus on what's there, I simply don't see the harm for all the reasons I stated.
Mr. Detert stated, you did indicate that you didn't think it obstructed any view, but my impression was that as I came up to it it did obstruct the view, some of the view, some of the site view of oncoming cars. He stated, there was a lot of construction - well, it went both directions. He stated, there were a lot of trucks and stuff sitting around there, construction trucks, that made it a little harder to see, but, obviously, when you have something sticking out, it's going to cut the line of sight to some degree.
Mr. Leeth stated, without question, but again, we've got Brighton Lane and Clarendon Court are only one block long.
Mr. Detert stated, I understand, but these corner lots always become a problem, cul-de-sac lots become a problem, and I just have trouble understanding that somebody that's in the building business doesn't recognize that that if they build on cul-de-sacs and on corners, they have to know it's a problem.
Mr. Burns asked, did Harvest Homes have a problem before with setbacks?
Mr. Thompson stated, that I'm not sure, to be honest with you.
Mr. Burns stated, there was an issue on a cul-de-sac - I can't remember if that was Harvest Homes several years ago.
Mr. Brickner stated, it looks like the vision isn't obstructed on the roads. He stated, we just drew in some lines, some diagonals, across the corner of the garage, and it looks like there would be about 120 feet where if a car was coming down Clarendon Road that he would have plenty of sight line from this. He stated, I think it looks - the pictures that I see here, it sticks out. He stated, I mean, it doesn't look like it conforms to…there aren't any other homes in there, but…the garage sticking out looks bad. He stated, the aesthetics are a little displeasing. He stated, as far as the traffic, I don't think there's a problem there -- you know, Plan B is to take 5.5 feet off of that garage, right, I mean, if the variance doesn't work you're going to have to take 5.5 feet off of the …Harvest Homes is, not you - Harvest Homes is going to have to take 5.5 feet off of the garage.
Mr. Leeth stated, well, I suppose that's one option, and what we do with that 5 feet and make a third bay and where that fits, there's, like I said, there are a few options, none of which are acceptable to our home purchaser, nor are they…
Mr. Brickner stated, the Carters live across the street. He stated, I feel kind of bad for them. He stated, I think they have a legitimate complaint about the visual part of this violation, and I don't know if there can be any kind of agreement worked out between Harvest Homes….
Ms. Schaefer stated, we don't want to do that, we don't go there.
Mr. Brickner stated, but I do feel sorry for the people across the street, because I don't think it looks good.
Mr. Hudson stated, I'm not sure I'm going to even vote because I'm close to these things and see these things happen a lot in my business, but if the people across the street, if I look at that window out there, if that window is moved 5 feet this way, I'm not sure that I could sense that. He stated, if I lived in line with them, next door, and I was looking at the front of the house and it
was over there, then it would be an obstruction for me, but I just say that, because they're across the street, and not in line with it, and I understand that they've complied with all the rules and regulations that visual…are there sidewalks to be placed out here, Todd?
Mr. Leeth stated, yes.
Mr. Hudson stated, then you are going to see the shortness between the sidewalk and the house - I guess that's what I would notice, that short, um, that short yard, but I made a sketch here to show the house, the two cars and a car sitting in the driveway and, in my opinion, there would be no problem with safety from the vehicles. He stated, even the car sitting in the driveway should be able to be seen from both ways.
Mr. Detert stated, my impression was that the visual impact was not good, and I didn't spend a lot of time there, because I didn't have a lot of time, but…
Mr. Hudson stated, it will definitely look closer, because it will be 5 feet closer to the sidewalk.
Mr. Burns moved to deny Case 03-V-41, finding that the grant will be injurious to the public health, safety, morals and general welfare of the community because the house will be too close to the road; the use and value of the area adjacent to the property included in the Variance will be affected in a substantially adverse manner because it could affect property values because the home is not in line with other new homes that will be built; the strict application of the terms of the zoning ordinance will not result in practical difficulties in the use of the property because the garage could be shortened and the home could be lived in. Mr. Brickner seconded the motion, which carried on the following ballot vote:
Brickner - Yes Burns - Yes Hudson - Abstain
Detert - Yes
Case 03-V-42. Petition of Carolyn Sue Devine, 178 W. 75 S., Valparaiso, seeking a Variance to permit a 1,590 square foot storage building, larger than the 1,200 square feet allowed in a subdivision, to be located at 178 W. 75 S., in Porter Township.
Carolyn Devine stated that she is the petitioner in this matter.
John Tietam stated, I am her husband. He stated that if you look at the layout of this particular property here, it is a three-unit subdivision governed by your subdivision rules, but the lots are in size of 16 to 20 acres, and the layout there, we are looking for a larger building. He stated that we contend that the property can take
a larger building or a barn. He stated that we have a letter from our nearest neighbor to where this property would be stating that he has no problem with that. He stated that we will comply with all the other rules. He stated that we have a witness here who is a member of the subdivision who is willing to state for us also that they have no problem.
Mr. Detert stated, maybe the Board members would like to know, why do you feel you need a larger building than what's allowed? He asked, what are you going to put in it?
Mr. Tietam stated, it is a storage building for yard equipment and things of that type that we have on the property right now.
Rachelle Schmidt, 169 W. 75 S., stated that my husband and I own 16 acres which adjoins next to the property. She stated that we have no problem with this. She stated that we and another couple, there are three of us, we have a lot of acreage and a lot of driveway to plow and a lot of grass to cut, so we have tractors and utility vehicles and such.
No one spoke against this petition.
The public hearing was then closed.
Mr. Burns stated, the only question I have, you're not going to operate a business out of this?
Ms. Devine stated, no.
Mr. Brickner asked, what is your line of work?
Mr. Tietam stated, I'm retired.
Mr. Hudson stated, I don't have a problem.
Mr. Burns moved to approve Case 03-V-42, with no business to be run out of this property, and incorporating the petitioner's proposed findings of facts, said findings being in the file. Mr. Brickner seconded the motion, which carried on the following ballot vote:
Brickner - Yes Burns - Yes Hudson - Yes
Detert - Yes
Case 03-V-43. Petition of Kelly Hopkins, 420 Niagara, Valparaiso, seeking a Variance to permit a reduction in the minimum front-yard building line from 25 feet to 20 feet to construct an enclosed porch, to be located on the Southeast corner of Niagara and Old Forge, in Portage Township.
Ms. Hopkins stated that I wish to add to the beauty of my property by adding a covered, enclosed porch. She stated that it will be 22 feet long and 8 feet wide.
Carmen Hopkins, 734 Baltimore Rd., Valparaiso, stated that the porch wouldn't obstruct anything on the front or on the North road, which is located on the West side of our property with a stop sign. He stated that the porch will be well behind any traffic there and it wouldn't obstruct anything coming up to the stop sign or anything like that, so…
Ms. Hopkins stated that there is also a 10-foot roadage that is not mine that is still added to the property, so there is actually 29 feet from my house to the road.
Pat Keith, 421 Niagra, stated that I am directly across the street from Kelly. She stated that I have absolutely no objection to the porch that she's planning to build. She stated that I think it's a wonderful idea. She stated that we happen to live in a very stable part of South Haven and anything that adds to the property value there is much appreciated.
No one spoke against this petition.
The public hearing was then closed.
Mr. Hudson stated, I think with the situation, the sketch that I made on the last petition showing the cars and the possibility of…I don't think it exists that you are going to have trouble visually, a simple sketch, I think, would show that, so I don't have a problem. He stated that the porch would certainly increase the value of the home.
Mr. Brickner stated, I was there. He stated that I don't think it's going to intrude on the visual aspect of the other houses in the area, so I don't have a problem with it, either. He stated, I think it will look in place, considering the other houses on the street.
Mr. Burns stated, I have no problem with this.
Mr. Detert stated, I don't have as much problem with a porch as I do with major structure obstructing.
Mr. Hopkins stated, well, this structure won't be any higher than the house or any other property out there.
Mr. Brickner moved to approve Case 03-V-43, incorporating the petitioner's proposed findings of fact, said findings being in the file. Mr. Hudson seconded the motion, which carried on the following ballot vote:
Brickner - Yes Burns - Yes Hudson - Yes
Detert - Yes
Case 03-V-44. Petition of Erich & Kathy Nightingale, 307 Melody Lane, Kouts, seeking a Variance to permit construction of a pole barn to house machinery, prior to construction of the house, to be located on the West side of CR 50 E., between CR 900 S. and CR 950 S., in Pleasant Township.
Ms. Nightingale stated that we purchased this property a couple of years ago, with the intent of building a home, which we are now prepared to start thinking about doing. She stated that we would like to construct this pole barn to house machinery in order to take care of the property. She stated that right now we are starting to get out there and do a little bit of excavating, a little bit of cleaning up of the property, getting it ready for our future home. She stated that that is our intent for why we wanted to build the pole barn. She stated that aesthetically it is conducive with the surroundings, mostly farm. She stated that the homes that are out there do have pole barns or plan to put some to put some type of storage buildings up in the future.
Mr. Detert stated, would you be a little more explicit on the type of machinery you're going to house.
Ms. Nightingale stated that we have a back hoe out there right now that's just sitting outside. She stated, we have mowers, property maintenance. She stated that we do have a farmer that farms the property and, on occasion, he will leave his machinery out there if he's going to be doing another field; that's some place he could put it in at night if he wished to do so.
No one spoke in favor of this petition.
No one spoke against this petition.
The public hearing was then closed.
Mr. Hudson asked, why a back hoe? He asked, do you have a business that…
Ms. Nightingale stated, no. She stated, we actually inherited it from Erich's father, who passed away. She stated that he had it and we had ordered some gravel and dirt that we were moving around out there. She stated that we may need to do a little bit of excavation
work for the pole barn until it is completely level. She stated that it is something that we inherited and we may use, have need for. She stated that we've cleared some leaves and kind of moved some things around with it out there.
Mr. Hudson asked, are you in the construction business?
Mr. Nightingale stated, no, I am not.
Mr. Brickner stated, you realize if you had a hay baler or combine, you wouldn't need a Variance, don't you?
Ms. Nightingale stated, unfortunately, the farmer that farms our property does; he has all that equipment.
Mr. Brickner stated, the only thing I have to ask is that you make sure this structure is behind your primary residence. He asked, this isn't going to be sitting out in front of your house, is it?
Ms. Nightingale stated, no.
Mr. Brickner stated, and you can never use this to run any kind of business. He asked, are you going to build your house in the next two years?
Ms. Nightingale stated, we hope to. She stated that we may do it as soon as next spring. She stated that our house is just about ready for sale. She stated that we have to do some minor touching up of things, but we hope to get it for sale next spring or the following year, at the latest.
Mr. Brickner stated, normally, we put a restriction on how long it will be before you build your house, if it's going to be two years, or three years, and you don't have it built, then you have to take the building down.
Ms. Nightingale stated, that's our every intention. She stated that we want to get it up there as soon as possible.
Mr. Brickner stated, if we give you three years from now, would you have it built?
Ms. Nightingale stated, absolutely.
Mr. Brickner moved to approve Case 03-V-44, with no business to be run from the property and the barn to be positioned behind the house, incorporating the petitioner's proposed findings of fact, said findings being in the file. Mr. Burns seconded the motion, which carried on the following ballot vote:
Brickner - Yes Burns - Yes Hudson - Yes
Detert - Yes
Case 03-PUV-6. Petition of Joanne Webb, c/o Todd A. Leeth, Hoeppner Wagner & Evans LLP, 103 E. Lincolnway, Valparaiso, seeking a Permanent Use Variance to permit an existing communication and remote control business office, to be located at 608 Northeast Long Lake Road, in Liberty Township.
Mr. Leeth stated that he is here on behalf of the petitioner, Joanne Webb and Will Webb Associates. He stated that Will Webb Associates is a small family-owned business now in its second generation. He stated that Mr. Will Webb started the company in his home and garage at the property that's in question tonight and has been doing so for some time. He stated that the business sells remote control and communication equipment to industry in the area in Northwest Indiana, primarily the steel mill industry. He stated that that business has been operating under a temporary use variance since approximately 1997 and at that time I believe there was a complaint or a concern filed at the Plan Commission office and a temporary use variance with conditions was granted for a period, I think, of one year. He stated that after that, we came back and received our second extension and then in February of this year our third extension was granted by this Board. He stated that now we are asking for a Permanent Use Variance so that the second generation - Mr. Webb has died and his son, who worked in the business, now has primary responsibility for the business, he would like to have some permanency, if you will, knowing that he has a home for his business for as long as he chooses to operate at that location, paying his mother rent, and providing her some income, as well. He stated, I know that there are some concerns from the neighbors with regard to delivery trucks and so forth. He stated that the property is somewhat large - at least there's a paved area that the delivery trucks, UPS is what we receive deliveries from - delivery trucks can come in and make their deliveries and then exit, as well. He stated that the business does have employees. He stated that there is one employee that works business days from 8 to 4. He stated that Mr. Warren Webb is there most of the time; he does make service calls and sales calls and so forth, so he comes and goes. He stated that on Monday and Tuesday there is one employee who comes and assembles the equipment and other than that there are no employees who would come and visit. He stated that there are a number of vehicles, however, that are personal vehicles, that are either Mrs. Webb's vehicles or Mr. Webb's personal vehicles are there frequently, as well, not only the ones he drives, but he also stores two vehicles on his mother's property, as well. He stated that there are other employees who work at a remote location and may, from time to time, come to the business for meetings or to pick up paperwork and so forth, but they are not housed at this office. He stated that the business has been there for a number of years. He stated that there are some residents and neighbors who support this and you have their letters, as well. He stated, again, Mr. Webb simply wishes to continue this small, family-owned business. He stated, as you know, the steel industry is facing hard times for the last few years and those impact their suppliers, as well, and had
it not been for the fact that this has been on family-owned property, Mr. Webb believes that he probably would not have been able to pay rent more than commercial rent and his business may or may not have survived without that. He stated, so, you know, those are the reasons and the justifications for the variance to allow him to continue what's been going there for a significant period of time. He stated that there are letters in support of this petition. He stated that 4 of the 5 are in the notice area and of the 6 in opposition, only 1 is in the notice area.
At this time, Mr. Thompson read letters for and against this petition. The letters are in the file.
Gordon Summers, 2652 LaPorte St., Lake Station, stated that he is very much against this. He stated, I own the house directly across from the two properties that they run the business out of. He stated, when I was informed about the business from the original property owner it was explained to me that it was just a father and son business and it kind of escalated from that to having a two-story garage built, employees coming in, their salespeople, service people, not to mention all the deliveries. He stated, I'm not happy with it at all.
Barbara Malone, 93 E. Long Lake Road, stated that I hope all of you have had the opportunity to go out and view this area, because if you have, you're going to understand my concern, and I'm going to explain to you where I live, okay? She stated, when you come into the area, before you head up to the Webbs, you will be on a curve and then you head up to the Webbs. She stated, that means that every piece of traffic that comes through goes by my house and that dangerous curve before they reach the Webbs' property. She stated that since there is no outlet, I see them twice - on the way in, and on the way out. She stated, my husband has owned the property since 1993. She stated that he was not aware of anything that has transpired about the business. She stated that we were not married at that time. She stated, we have since married and I now also reside at that address. She stated, I had occasion this past summer, unfortunately, to be home recovering from surgery, and while I was home, out on my upper deck, which overlooks East Long Lake, there were a great number of deliveries and of some there were vehicles that carried large wire coming by. She stated, my husband works shift work, which means sometimes he needs to sleep during the day and he had complained to me, I don't understand where all this noise is coming from, and I explained to him, well, let me tell you. She stated that the UPS truck is not that quiet. She stated, the other day, we saw them go by in the morning and it went to the Webb property; in the afternoon, and it went to the Webb property. She stated, also Airborne came through, so it's not that it's one delivery a day. She stated, now, I did get copies of the minutes from 1997 and 1998 and I understand that attorney Todd Leeth did make the comment that there would be the same amount of deliveries in the area as in the absence of this business and I would like for him to explain
to all of us this evening, how he came to a scientific conclusion that there is no more delivery trucks in the area with the business than there was without it. She stated, I want to stress that my husband and I have never had any ill feelings, ill will - we don't even know the Webbs. She stated that that is stated in the letters that you will read and you do not need to read the one from my husband and myself because we have been informed that I can either speak or have my letter read. She stated that I brought the letter in because I've been losing my voice for days and I didn't know if I'd be able to speak or not. She stated, I think everyone in the subdivision that we talked to that signed the letters agreed: We do not want them to have any financial hardship, however, we do not understand asking for a permanent use variance when the temporary use variance is still valid through February of 2008. She stated, we are very upset with the amount of traffic, because as you see, and I believe Attorney Leeth addressed the fact that there were a number of us that were not in the area. She stated, we are all on the main road coming in, so those up above might see that traffic, but we see every bit of it, and when you go through the names, Malone will be on there, Schaffer will be on there, and Kutch will be on there, and if you look at where we live, we have a great impact from that traffic. She stated, I want to close by letting you know it is not our intention to cause this family any financial hardship, however, we feel that with the temporary use variance they still will have the opportunity to run their business until February of 2008. She stated that that will give them ample opportunity to decide if the business is thriving and, if so, it will allow them time for their business to obtain any type of location within the appropriate zoning, rather than residential.
Mr. Leeth stated that I think the number of vehicles on the worst day on average, we're talking about as far as employees and people who might be there, three persons, which would be six vehicular trips in addition to the deliveries, which are sporadic. He stated that the impact on the immediate neighbors, the people who live on either side, I think is far greater than those who live, if you will, down the street. He stated that I guess I don't have any scientific reason for that. He stated, it's just my common sense and my hope that it's well founded that the most important impact is on those who are in closest proximity to the subject property, and I think that's borne out by your rules of procedure. He stated, the rules require us to notify only those within so many feet. He stated, they don't say that you have to notify them along the road, or miles from the subject property. He stated, it's just those in close proximity. He stated, and those from the notice list have written more in support than those in opposition. He stated, it's those that are further away, perhaps closes to Ms. Malone and her neighbors that she frequents, that have signed the form letter that she's prepared in opposition to the petition tonight. He stated, that's what I ask you to focus on, is, in the close proximity, the people who are most impacted, look at their concerns and they are in support of the petition and what the Webbs are attempting to do, and frankly have been doing for a number
of years and have, when asked, have complied with the requirements or conditions in effect in 1997.
Mr. Detert stated, there was one question there that the young lady asked about since you have a use variance in place, why, now, are you asking for a permanent use variance, why the timing, why not work out the use variance?
Mr. Leeth stated, I guess it's one of when did you want him to apply? He asked, did you want him to wait until he didn't have time to seek another business location? He asked, did you want him to wait two years or two months? He stated, I guess there's never a good time when he's trying to make some long-term plans with regard to this location. He stated, I think that that's the answer. He stated, there is no magic. He stated, you're right; we simply received our request in February because we got the letter from the County, and we obviously had the additional time to seek under the temporary procedures and it was at that time that he contacted me and said, you know, what happens in 5 years, and, well, let's just do it now. He stated that we waited from February until today to make the application. He stated that we waited some period of time - we didn't do it right away, and that was simply for vacations and summers, but there was no other reason. He stated that it was simply a matter of, it's now, and he needs to make some of those choices, and he'll have 4.5 or 4 years to make those choices, depending upon your decision tonight.
Mr. Detert stated, since it was a question, I wanted you to speak to it.
Mr. Leeth stated, it's not one that has a hard and fast answer to it, which is why, I guess, I paused as I tried to gather my words for you. He stated, there is no reason why it's now and not next year, but, at some point in time, he has to have that lead time so that he can take his business to an appropriately zoned property, if that's your choice.
Mr. Detert asked, were there any questions that were asked that were not answered?
Ms. Malone stated, two things that are of grave concern, I think, in a permanent use variance. She stated, first of all, that would allow for additional building, construction. She stated, with additional construction, there would be additional space for storage, potentially, additional deliveries; potentially, additional employees; potentially, additional traffic. She stated, that if that did not come to be, additional construction, there could be the sale of the property. She stated, with the sale of the property, um, you have five neighbors that say the Webbs have been a good neighbor. She stated, that if you sell it - and, of course, it might be more attractive if it would be going up for sale in the near future, if it had a
permanent use variance. She stated, we wouldn't need to come and talk to you. She stated that we would acquire a new neighbor that would already have the ability to have that business in our neighborhood.
Mr. Summers stated, I'd also like to emphasize the fact that this is for one residence. He stated that they also use that residence for their office, as storage, as well as the next-door residence, which they own, which has a garage that is directly out my front door, which they also store all their materials at. He stated, that's what I'm wondering is, they also own the house next door to me. He asked, will they be able to just keep moving the stuff around from property to property, or is this just for one particular address?
Gary Walkman, 77 W. Division Road, stated, I own the house at 603 E. Long Lake. He stated that I'm landlord there, and I go out there frequently and that land that she was talking about, it's really kind of a beautiful, natural area and there is almost always people walking their dogs or walking along there. He stated, by my house, at 603 E. Long Lake, really the children in that area use that road as a playground. He stated that they are always out there playing ball or riding skateboards or riding bikes. He stated, I really don't think that's the place to have increased business.
Mr. Leeth stated, with regard to the salability of this property being transferred to other businesses who could use it, it would be more effective on the market with the, my words, paraphrasing, a business zoning, if you will, that can't happen. He stated that the variance is specific to a remote control and communication operation, so we would have to sell, if you will, to a competitor who would operate on that property, and that is highly unlikely. He stated, but, let's address that concern. He stated, we're not here to increase the marketability of the property. He stated, we're here to make sure that this business has a home in the future and so, therefore, we would agree to a condition that this variance, if it were granted as a permanent use variance, be non-transferable. He stated, it would only apply to your petitioner, or to Will Webb and Associates, knowing that Warren Webb is the principal there. He stated that we would agree that it be non-transferable, so it couldn't be sold to other business interests, even as remote a possibility as that might be. He stated, also, we have no intentions of expanding the business. He stated, matter of fact, and it's my sense, and from talking to Mr. Webb, that today the business is probably smaller than it was when we came to you in 1997, so it's not going forward. He stated that it has regressed in its intensity, if you will, of business, and, to that end, we would also agree to an additional consideration or condition that there be no additional construction on the property to alleviate the concerns that this is an attempt to, um, increase the business; it's not. He stated, we simply want some permanency in the operation so that he has that sense of his business having a home so that he is secure in that.
Ms. Malone stated, point of clarification: The business would not have to be sold to a competitor. She stated, it actually could be sold to an existing employee. She stated, there's always that possibility. She stated, you have dealt with the issue of transferability. She stated, you've dealt with the issue of expansion. She stated, however, it is still my contention as a tax-paying resident in that area that it is not appropriate for the area. She stated, if traffic is a problem now, and they have a temporary use variance through 2008, that is something that we will need to deal with; however, if the business is not thriving to the point that it can move to a business or commercial district by the time that 2008 comes, maybe it would be a time for them to take another look at the business, and I don't think there is anyone in this room that understands more the problems of the steel industry right now than I do.
Mr. Leeth stated, Mr. Chairman, I believe I've addressed the concerns of the remonstrators with the offer of the conditions.
The public hearing was then closed.
Mr. Hudson stated, I like the conditions. He stated, until he brought those up, I was a little concerned that this would pass on and continue afterwards. He stated, I always understand that the one way in and one way out has always been a concern, and especially with the availability of those same roads to be playgrounds for children, because it is a dead-end area.
Mr. Brickner stated, we've had this as a temporary variance for a number of years now. He stated, it sounds like the business has grown. He stated, I can remember looking at when Willie owned it and Willie was running it and Warren, too, that it wasn't that big, that there weren't any cars like we see now, and it seems to me that the business has grown a little bit. He stated, I don't think that we've ever approved a permanent use variance for a business in a small residential area like this and I think the biggest concern of everybody here is the permanency, and I agree with them. He stated, I think that a temporary use variance that we have control of every five years, I think that is more sensible for a business that's in this small residential area and I would have no objection to a temporary use variance where we could still monitor this every five years.
Mr. Burns stated, I feel the same way. He stated, I feel they started out as a small family business and it's outgrown the neighborhood, that's what it sounds like. He stated, it sounds like it's growing just from the comments about the traffic and UPS trucks and Fed Ex. He stated, I guess I do have a couple questions: How many houses are they using for the business? He asked, is it two houses plus the garage, three houses?
Mr. Leeth stated, there's a garage that is the main structure of the business. He stated, Mrs. Webb's residence is the residence that is the home that is on Long Lake and there is a two-story garage. He stated that the lower level is primarily storage; that's where John does the assembly work - the gentleman who works two days a week. He stated that then above that is the office for the business. He stated that there is an additional out building, a garage, that is used for storage, which is true, but the home doesn't have any business purpose.
Mr. Burns asked, so they are using two garages? He asked, not a home or part of the home for office?
Mr. Leeth stated, I don't believe so. He stated, no.
Mr. Burns asked, does Warren Webb live there?
Mr. Leeth stated, no.
Warren Webb stated that he lives at 610 N. 70 E. on West Long Lake Road. He stated that West Long Lake Road is 70 and they are 90.
Mr. Burns stated, I guess I'm concerned because it started out, which I had no problem with, as a small family business and I think there were issues with it from Day One, but a small family business - I just think it's outgrown the neighborhood and the main owner is not even living there. He asked, you are the manager, is that correct, Warren?
Mr. Leeth stated, Warren, now, is, if you will, the owner of the business. He stated that his father, Will Webb, died.
Mr. Burns stated, I also think it may be time to relocate to a commercial area. He stated that it's been a great business for the family. He stated, I just think it's outgrown the neighborhood - that's what it sounds like to me.
Mr. Leeth stated, the business, I'm not exaggerating - I believe the business is less today than it was when we came to you in 1997 for the first time, February 1997. He stated, at that time, I described to you the same number of employees. He stated that there are no additional employees. He stated, matter of fact, Mr. Webb, tell me if I'm stating this incorrectly, but he had a salesman travel who was never at this business, so he's actually got one less employee than I know about today than he had back in 1997. He stated that that employee never came to this office unless, again, it was on a very, very irregular basis, unless there was a staff meeting or something along those lines.
Mr. Burns stated, I guess where I'm coming from, we have heard the testimony of all these vehicles in and out. He stated that it just seems like the volume is going up. He stated that I can't recall
hearing that as a major issue as it is now. He stated, another comment: a remote location - there is another location, an office?
Mr. Leeth stated that it's a satellite type of office at one of the steel mills.
Mr. Detert stated that I guess I do like permanent use variances. He stated that they solve a problem. He stated that they give someone who is in a neighborhood an opportunity to run a business, and, if the neighbors don't object, I think that's good. He stated, but, I guess what troubles me here is the area that it's in. He stated, a narrow road, a playground, I can't tell you how I'm going to vote on this. He stated, I just have mixed feelings.
Mr. Leeth stated, I guess I, and I will address, if I may, the comment that you made, Mr. Brickner. He stated, you're okay with the temporary use variance, but it's the permanency that troubles you.
Mr. Brickner stated that I'd like to still be able to hear from people occasionally if there is a big expansion or if things start growing more than they are now, and we've made it a permanent use variance, then the neighbors have no say in the situation at all, and I kind of like having - I think we ought to have some control - because this is a real tight residential area. He stated, I mean if it was anywhere but this really small area, I don't think I'd object as much, because I've know this business for years. He stated that all of us that work in the mills know these people, have known them for many years, and I know they have an outstanding reputation, but I do have a problem with the permanent. He stated, if we could go to the temporary use variance and stay with the use variance, I wouldn't have a problem with it right now, so these gentleman and this lady here could come back in five more years and say, this is way out of control and we could see that it has grown and it does not fit the neighborhood. He stated that I really agree with Rick that somewhere down the road they've got to be looking at a business site for this business because I think that they have a good business, and I know steel mills are not going to be on their ears forever, so I kind of worry about it getting any bigger than it is and then having no control at all over how big it gets in a residential area.
Mr. Detert stated, I guess the consensus here from the testimony I've heard - you can correct me if I misheard it, seems to be that the neighbors really don't object to what they're doing. He stated that they don't want to create it on a permanent basis though for fear it will grow and cause increases in traffic in a very tight, tight neighborhood.
Mr. Leeth stated, I agree with that, and I thought the conditions that I had proposed solved those concerns. He stated, we can't expand because we can't build new, it's not transferable to others; the Webbs are going to be the ones who are going to be there.
Mr. Detert asked, is that specific to one of the Webbs? He stated that there could be Webbs down the line. He asked, when is the terminus date?
Mr. Leeth stated, I guess, let's use the two people that we have in the room tonight, Joann and Warren Webb. He stated that as long as they're the principal owners of Will Webb and Associates, the variance is valid for 6-08.
Mr. Detert asked, how about the growth? He asked, what happens if they double, triple, quadruple the number of peoples that come in to work?
Mr. Leeth stated, we can address that and if you want to fashion a reasonable condition - I'm not exactly sure how you can say that - we'll have no more than perhaps one additional employee, so we have three now - we would have no more than four.
Mr. Detert asked, would you agree to that?
Mr. Webb stated, oh, yes, in fact we'll stay at three. He stated that the thing about the place that we're at - and I understand my neighbors' concerns -- it's an awesome place to have a business because it is in a residential area, unfortunately, but we own enough of the property - we probably own 4 acres there - that allows us to stay out of their way, we believe. He stated that you have a nice office in the woods and you look over a lake. He stated that it's nice to have that. He stated that I know a couple people on this committee know what it's like to work in a steel mill. He stated, it can be, it's not a safe, it's as safe as you make it, but there are dangers there and it's dusty and it's not a pretty place to work, so it's a nice place to do business. He stated that that's why we like it there so much, that's why we want a permanent variance. He stated, we can find another place to go in five years, or, if you would be willing to give us another opportunity for a five-year variance in 2008, we'd be willing to do that also and until that time, we'll live with the stipulations. He stated that the one thing that concerns me about the traffic, though, and their concern with the traffic is, I don't believe anyone here actually has children. He asked, how old are your children? He stated that my point is that I have a 4-year-old that spends a lot of time there and he's out on the road because I'm not watching close enough a lot of times, but we're pretty careful about what we do on those roads because it's my child, also, that's out there, because of his grandma living there and both my wife and myself working that it's a convenient baby sitter. He stated, but, truly, I don't' know what else to tell you. He stated that the reason we want to stay is because we really like it. He stated that it's a nice place to work.
Mr. Brickner stated, if we make all these restrictions and stipulations, what's the difference between a permanent use variance and a temporary. He stated that a permanent use variance is so you
can go in and improve and enlarge and expand and you'll know you are going to be there for a long, long time and you're not going to do any of that, so, what's the advantage of a permanent use variance over the temporary variances we've been giving them over the last several years, the last six years, anyway?
Mr. Leeth stated, as much as we like your company, we've been here three times in seven years. He stated, I guess there is just some permanency in not having to come back and see you every other year, or every so often.
Ms. Malone stated in reference to having children, I do have a 10-year-old step-daughter and in reference to is it acceptable to have a permanent use variance, no, it is not. She stated that we have problems with traffic the way it is now. She stated, that's why we sent you the letters and that's why I'm here tonight. She stated, we have conceded the point that they have a temporary use variance through February of 2008. She stated that Mr. Leeth has informed you that he's been here three times in seven years. She stated, well, tonight's meeting is of their own accord. She stated that they didn't have to come tonight. She stated that they are good through 2008. She stated that they came in '97, they were given one year, to '98. She stated that in '98 they were given five years.
Mr. Detert stated, but anyone has the right to petition.
Ms. Malone stated, absolutely, but as a resident and taxpayer of that area I still do not accept that because of the volume of traffic now and those concessions do not control or do not alleviate our traffic problem.
Mr. Burns stated, I would support a use variance, but I cannot support a permanent use variance, with all the issues.
Mr. Brickner asked, can we change this to a temporary?
Mr. Burns stated, they already have one.
Mr. Brickner asked, if we deny this, what happens?
Mr. Thompson stated, they still have their temporary.
Mr. Detert stated, I think Mr. Webb said that if he had to he would operate under those circumstances. He stated, a denial would not shut him down.
Mr. Brickner asked, and he'd come back here in 2008.
Mr. Thompson stated that in 2008 they would use up all their extensions. He stated that if they did come back in 2008 it would be a public hearing.
Mr. Detert stated, I think you've got sympathy, but you've got concerns.
Mr. Leeth stated, I want the record to be clear that the interpretation allows this, under the temporary use variance, to re-petition at that time, as another continuing temporary use variance.
Mr. Detert stated, absolutely. He stated that we don't know whether we will be here or somebody else will be here.
Mr. Hudson asked, is that correct?
Mr. Leeth stated that there is a question of interpretation of the ordinance as to whether or not you can go through your three five-year periods, and in this case, we had a one-year period and then five years and five years, so, in our case, it would only be 11 years, but maximum 15 years. He stated that there is a question as to whether or not, after the end of that period of time, do you have to petition for a permanent variance or can you start the cycle over with another public hearing for a temporary.
Mr. Burns stated, we should check with the counsel.
Mr. Detert stated, it's always been my understanding, and our attorney is not here, so we apologize, that you could come around and get another 15 years, potentially, but it's hard to speak to that because we don't know whether we will be here. He stated that that's been our interpretation.
Mr. Hudson asked, wouldn't that be a public hearing?
Mr. Leeth stated that I'm not sure that your ordinance is clear if you can even have two consecutive temporary use variances.
Mr. Detert asked, do you think that some board in the future could deny that second round of use variance, is that your contention? He stated, but you could still come in any time between then and now and still ask for a permanent use variance again, after a year.
Mr. Leeth stated that there are some nuances, but I think you're correct, I think after we wait out the one year, under your rules of procedure, we could re-petition for a permanent.
Mr. Thompson stated that he is going to check with Ms. Schaefer sometime about Mr. Leeth's concerns about this. He stated that I just briefly read it and I didn't see any kind of language that would prevent them from re-applying.
Mr. Detert stated, it's always been my understanding that they could do that, but I haven't read it recently.
Mr. Brickner moved to deny Case 03-PUV-6, finding that the grant will be injurious to the public health, safety, morals and general welfare of the community because of the possibility of expansion of the business and increased traffic; the use and value of the area adjacent to the property included in the variance will be affected in a substantially adverse manner because once again any expansion of the business in a permanent vein would increase traffic and be a hazard to people living and playing in the area; the need for the variance does not arise from a condition peculiar to the property because this is a residential area, a very small, tight-knit community that doesn't have a lot of room for businesses; the strict application of the terms of the zoning ordinance will not constitute an unnecessary hardship if applied to the property for which the variance is sought because they can continue their business under the temporary use variance that they have now until 2008 and then they can apply for another variance at that time. Mr. Burns seconded the motion, which carried on the following ballot vote:
Brickner - Yes Burns - Yes Hudson - Yes
Detert - Yes
At this time, Mr. Thompson stated that some of the things that have come out, concerns, I did try to address them today with Commissioner Burrus as far as help in the office, where I asked for the possibility of more, with an additional person in the office, one with a very technical background in surveying, which, one of the things I've been talking about would be goals to working our new person in with some of our new codes that we're hoping to do as far as drainage, and also to check things, such as Harvest Homes came in, we would have someone out there accurately measuring such things on the property and catch it earlier. He stated that I'm trying to work on some of these things.
There being no further business, the meeting was adjourned at 9:30 p.m.
PORTER COUNTY
BOARD OF ZONING APPEALS
S/Robert Detert, Chairman
Attest:
Robert W. Thompson Jr., AICP
Executive Director/County Planner
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