BOARD OF ZONING APPEALS

Regular Meeting
February 18, 2004

M I N U T E S

The regular meeting of the Board of Zoning Appeals was held on February 18, 2004 at 7:00 p.m. in the Porter County Administration Center, 155 Indiana Ave., Valparaiso, Indiana.

Those members present were Marvin Brickner, James Robertson and Robert Detert. Staff members present were Fred M. Siminski, Attorney Lily Schaefer and Toni Byers.

Mr. Brickner moved to waive the reading of the minutes for the January 21, 2004 BZA meeting and to approve them as received in the mail. Mr. Robertson seconded the motion, which carried on a unanimous voice vote.

Pending Business:

Case 99-UV-1. John B. Parry, 1069 N. 550 E., Westville, seeking a renewal of a Use Variance permitting an excavation business, on the East side of CR 550 E., between CR 1050 N. and CR 1100 N., in Jackson Township.

Mr. Detert stated that they have a continuance to the March 17th meeting.

Mr. Brickner moved to continue Case 99-UV-1 to the March 17, 2004 meeting. Mr. Robertson seconded the motion, which carried on a 3-0 voice vote.

Case 89-V-4. Jerome Drazer, 439 E. 700 S., Kouts, seeking an extension of a Temporary Certificate of Occupancy for a mobile home at 439 E. 700 S., between CR 450 E. and CR 300 E., in Pleasant Township. (Petitioner is to appear in person.)

John Lyons stated that I am a lawyer here in Valparaiso and I represent Mr. Drazer, who, I think, is technically the petitioner. He stated, for the record, he is here present. He stated that we've heard your announcement that we could ask to continue the matter if we were at all concerned about having just three members of the Board. He stated that "Babe" and I have talked about it and we're perfectly willing to submit our situation to the three of you tonight. He stated that basically it is this: Mr. Drazer has a mobile home on his property in Pleasant Township which is the home farm that he occupies and farms and on which he lives. He stated that they have a home, and I'm just going to judge maybe 5 or 6 pretty typical sort of farm buildings and in with these buildings is this mobile home, which is occupied by the person who works for Babe part-time and helps them out. He stated that Babe is still very active working. He stated, in a nutshell, our problem is that the mobile home does not comply with the terms of the ordinance. He stated that we know that your records will show that we've had any number of continuances. He stated that I have met with the members of your staff and we've explored possibilities of what it would take to bring this structure into compliance. He stated that we've explored those possibilities with the appropriate people in the field - construction people, surveyors, that sort of thing. He stated that we've come, reluctantly, to the conclusion that it's probably going to cost us a whole lot more to bring it into compliance than it would be worth; therefore, I announce to you that our plan is to abandon it as a residence at this point and I understand that will then, basically, bring it into compliance as long as it is not being used as a residence. He stated that he is going to turn it into a farm storage building. He stated that our request tonight would be that you do not authorize your counsel to take any punitive action against us for a couple of months at least until we…the present tenant has to find a place to live.

Mr. Detert asked, the building will stay on?

Mr. Lyons stated, that's our present plan, yes. He stated that there is a remote possibility that we may try to make it into compliance, but the numbers we're getting are killers.

Mr. Detert asked, so you'd probably like a 60-day, 90-day extension?

Mr. Lyons stated, yes, that would be very helpful. He stated, I think in 90 days we ought to be in compliance.

Mr. Brickner asked, what are you going to do with this thing in the long-term? He asked, is it going to remain there, is it going to be removed?

Mr. Lyons stated, I don't know, but I don't perceive that to be a legal problem one way or the other. He stated, what Babe is telling me, I think it's legal, but he will probably make a storage room out of it. He stated, it's a pretty good-looking trailer.

Mr. Brickner stated, I know, it looks almost like a home. He stated, I was out there and it is, it looks almost like a home, but it is still considered a mobile home. He asked, is it being rented now?

Mr. Lyons stated, yes. He stated that there is a tenant in it now.

Mr. Brickner asked, and the original purpose of this mobile home was for what.

Mr. Lyons stated, it was for agricultural help.

Mr. Robertson asked, how is this different from other continuances? He stated, we've done this sort of thing before. He asked, what was out of compliance with this structure?

Mr. Lyons stated, I understand, having met with your staff, that one of the things we are not in compliance with is that it's more than one residence on a parcel of real estate. He stated that we can either do what I understand your people are calling a mini-subdivision, which would be at least 10 acres - we could carve that parcel out by a separate legal description and that would sort of alleviate that problem. He stated that then we wouldn't have two dwellings on one parcel, however, the structure itself would require upgrading, as I understand it from your staff, to a minimum of what is it - 960 square feet, whatever the requirement is. He stated that that, again, isn't such a tough thing to do, because we could put an addition on it. He stated that the problem is that, apparently, I'm told by your staff, that we have to put a foundation under it and that's where I look at it and they'd have to move the building and probably have to put a foundation next to it and move the building onto the new foundation and then, in addition to it, there may be some other requirements of the building code that I didn't know - we didn't get into all of those technical details with staff. He stated, but, as I said, Babe is getting quotations of $30,000, $35,000, $40,000.

Mr. Robertson asked, so, Mr. Lyons, if there wasn't any money being exchanged, if it wasn't being rented, then we could give you a TCO, is that right? He stated, because we do that all the time.

Mr. Lyons stated, that's a new concept to me. He stated, I can't speak to that.

Mr. Brickner stated, you've got to understand though, the reason we allow mobile homes if for hardships, and they're supposed to be removed after a period of time when that hardship no longer exists, and that's what we're here for, is to make sure that these things are done in a proper manner, and if this home is no longer being used for hardship purposes, for the intent which was originally granted, then the mobile home should be removed. He stated that that's what we want to see, that's what I want to see, is that when these trailers no longer…we don't want to see them upgraded and made into permanent residences. He stated that that's not the intent of this TCO. He stated that it's for a temporary hardship only and, personally, if this is not being used for what it was originally intended, then I don't want to see it upgraded into a home or anything. He stated, I want to see it removed.

Mr. Detert stated, I think that's what he indicated they were going to do.

Mr. Brickner stated, that's why I asked him - what's the long-range thing and now he's saying he wants to add onto it and make it into…

Mr. Robertson stated, no, I think that was one of his…he could have done that, but I think what they are saying is…

Mr. Lyons stated, I didn't mean to say that.

Mr. Detert stated, I think what we need to do, gentlemen, is give him 90 days to figure out where his renter is going to go and have him come back in 90 days or let us know what is happening.

Mr. Lyons stated, I believe in 90 days the problem would be solved one way or the other.

Mr. Robertson moved to continue Case 89-V-4 for 90 days with the petitioner then to appear in person if there is still someone living in the mobile home, or to let us know what is happening. Mr. Brickner seconded the motion, which carried on a 3-0 roll call vote.

Case 03-V-7. Carol Calvert-Ray, 1453 N. 425 E., Michigan City, seeking an extension of a Temporary Certificate of Occupancy for a mobile home at 1453 N. 425 E., in Pine Township.

Mr. Siminski read a letter from the petitioner requesting an extension of this TCO. He stated that I believe Mrs. Ray is a school teacher and teaches in Chicago. He stated that I did visit the site and the site does have a mobile home on it. He stated that it's a large open parcel. He stated that there is an existing trailer on the site and this is an extension of the TCO from last year.

Mr. Brickner asked, do you know what the original use was for this trailer?

Mr. Siminski stated that originally Mrs. Ray was going to build a residence on this property and this was going to be a temporary residence until her structure was built, but I guess financial problems hit her and she has not been able to start. He stated that she has not turned in any permitting paperwork for the start of her building.

Mr. Detert stated that it was just granted in 2003, so..

Mr. Brickner, give her another year?

Mr. Robertson stated, I would say so. He stated, I mean it's hard times for lots of folks and I don't think we should be Simon Legree here kicking someone out. He asked, she's asked for an extension, right?

Mr. Brickner moved to approve Case 03-V-7 for 1 year. Mr. Robertson seconded the motion, which carried on a 3-0 roll call vote.

Case 03-V-37. St. Michael Evangelical Lutheran Church, 805 S. County Line Road, Hebron, seeking an extension of a Temporary Certificate of Occupancy for mobile homes for laborers to live in while helping to build an education center, at 805 S. County Line Road, in Boone Township.

Mr. Detert stated that the trailers are gone and we have heard from them and the need is not there any longer.

Mr. Robertson moved to deny Case 03-V-37. Mr. Brickner seconded the motion, which carried on a 3-0 roll call vote.

Case 03-V-3. Bradley Engle, 2053 Landmark St., Portage, seeking a renewal of a TCO for a Coffee Express drive-through coffee service, located on the Southeast corner of U.S. Hwy 6 and SR 149, in Portage Township. (This case was continued from the 1-21-04 meeting, with staff to investigate which intersection this is on.)

Mr. Detert stated that that location, they no longer have the coffee trailer there. He stated that they have moved it.

Mr. Siminski stated that I did talk to Mr. Engle, and yes, it has been moved to the Northwest corner of McCool Road and U.S. Hwy 6. He stated that he did not realize that he needed to contact anybody. He stated that he thought it was just going to die away, so he has no use for this continuance or this renewal of a TCO.

Mr. Robertson asked, does he need one for the new location?

Mr. Siminski stated, I addressed this to Bob and it's on a permanent foundation and, according to Bob, Bob said there was nothing needed at this time.

Mr. Brickner stated, he's got his grand opening this week.

Mr. Robertson moved to deny Case 03-V-3. Mr. Brickner seconded the motion, which carried on a 3-0 roll call vote.

Public Hearing:

At this time, Mr. Detert read the rules of conduct for a public hearing.

Case 04-V-3. Petition of Kenneth & Laura Roof, 564 N. 175 W., Valparaiso, seeking a Variance to permit a reduction of the minimum required road frontage on a 10-acre-plus parcel from 96 feet to 60 feet, in order to build a house, to be located on the West side of CR 400 E., between CR 600 N. and CR 700 N., Jackson Township.

Mr. Roof stated that my main objective here is that I want to build a house on this 10+ acres that I bought in '99. He stated, basically a house and a pole building because I have horses. He stated, apparently, though the County, I didn't realize that I had to have 96 feet, and I thought the 60-foot easement was plenty, so that's basically what I'm here for.

Mr. Detert asked, did you start building?

Mr. Roof stated, no. He stated, I heard that I can't obtain a building permit because I don't own the required 96 feet.

Mr. Detert stated, sometimes they start building before they get the permit.

Mr. Roof stated, no, I don't work that way.

Calvin Clemens, 668 N. 400 E., stated I live just South of his property that he bought, the 11 acres. He stated that I own 14 on the other side, and I only have a 30-foot road easement for mine, so I don't understand why he has to have a 96-foot road easement. He stated that nobody could show me the standards of what, the standards for what takes a 60-foot road easement, what takes a 96-foot road easement, nobody could show me that in writing. He stated that I've been here, upstairs, down here, in the courthouse and I can't find nothin' (sic).

Mr. Detert stated, we'll take all the questions and then we'll answer them.

Mr. Robertson asked, may I ask, what's your feeling on this case?

Calvin Clemens stated, I'm all for it.

Wilbert Clemans, 8135 N. 500 E., Denver, IN, stated that there's a 60-foot easement going back there and it's already been designated as a public road, a County road, and it has a road number, and where does he have to have the 96 feet, is our question, and, just like my boy said, we've asked for copies of the ordinances and different things and nobody can produce nothin' (sic). He stated, that's all I can say.

Mr. Roof stated, I didn't find out about this because when I bought the property, I bought it from Wilbert, and everything that we were told with the 60-foot easement was fine because there's 4 lots on the North side of me that is designated a mini-subdivision, basically, and there are four property owners on the North side of me, and I just don't understand why I have a 10+ acre parcel and we'd be sharing the same easement as the mini-subdivision that's on the North side of me, and this didn't come to pass until Wilbert was selling the 13.9 acres that's in the front of my property that does border 400 E. and a designated parcel was for my parcel and the 4 lots on the North side of me and I just couldn't figure out, a 60-foot easement and then all of a sudden it's got to be 96 feet road frontage. He stated, I just couldn't understand why, all of a sudden, it changed.

At this time, the public hearing was closed.

Mr. Detert asked, Fred, can you speak to this?

Mr. Siminski stated, me and Bob did visit the site and from what my understanding is - excuse me, because I'm somewhat new -- that anything with an RR designation, which is Rural Residential, needs a 96 foot frontage, okay, and there is no frontage touching a County road.

Mr. Roof stated, in all actuality, seeing as how that easement was designated a County road, my property does, because I don't know if you have the plat.

Mr. Siminski stated, it's showing on here a 60-foot ingress and egress easement.

Mr. Roof stated that I have one here that shows the Jackson minor subdivision that's just North of me that the lots are all divided into different lots and that easement does jog over and it does go into them four lots on the North side of my property line, and I just wondered, because it's a 60-foot square on my actual property. He asked, now, would that be considered because it's 60 feet square, now, that easement comes back, would that entitle me to a 120 feet of road frontage?

Mr. Brickner stated, I don't think so, but I'm not an expert on that, but it's 60 feet of frontage, I mean 96 feet of frontage and you only have 60.

Mr. Robertson stated, well, but there is already an easement there that's going back to a Jackson minor subdivision. He asked, are there homes back in the Jackson minor subdivision?

Mr. Roof stated, no, it's vacant property.

Mr. Robertson asked, but this was okay for the Jackson minor?

Mr. Roof stated that here's the plat that I have for the Jackson minor subdivision. He stated that here's the easement and my property is right here. He stated, see, here's the 60-foot square, then it jogs over and comes down here.

Mr. Brickner stated, but that's on someone else's…

Mr. Roof stated, yeah, but, still, I have that 60-foot square that's…'cause my property is straight here.

Mr. Robertson asked, where's the railroad?

Mr. Brickner stated, right here, where this line is.

Mr. Detert asked, if you were forced to comply with the 96-requirement, what would be your hardship?

Mr. Roof stated, I can't build anything. He stated that I don't own the 96 feet. He stated that it's landlocked and I can't obtain a building permit.

Mr. Robertson asked, what about Parcel 2 here? He stated that it looks like it has a 30-foot easement.

Mr. Brickner stated, yeah, we were looking at it. He stated that that's his property, but I think he owns the property behind that.

Calvin Clemans stated that there is an easement that goes through mine but (inaudible)

Wilbert Clemans stated, it's actually a 60-foot easement, but then it drops off at his property line.

Mr. Robertson stated, well, we've got two things here: We have to figure out if we want to okay this, and the other thing is I think he's owed an explanation of where the 96 foot requirement comes from. He stated, why don't you speak to that first.

Mr. Detert asked, what do you want to speak to? He stated that it requires 96 foot frontage…

Mr. Robertson stated, they're acting like we're making it up out of thin air.

Mr. Detert stated, well, that's what it says. He stated that it didn't come out of thin air. He stated that it's been there, I'm not sure how this got platted or where the 60 feet came from. He stated, another question: We have granted 60-foot easements in the past.

Mr. Robertson stated, for variances, yeah, but it's in the ordinance. He stated, you're saying nobody could show you where it was, but it's…

Mr. Roof stated I've been upstairs in the office and nobody could show me.

Mr. Brickner stated, well, I just looked and I don't know where it is, either.

Ms. Schaefer stated, I don't know where it is, either.

Mr. Robertson stated, it's one of those things we passed a long time ago, and there was a lot of discussion about passing it. He stated that it was passed by the Commissioners as an ordinance. He stated, so, if we could find that or not - just take our word for it - it is a legal law, an ordinance that this County has passed through its Commissioners, and that's where it comes from, and if you have a deviation from that you're entitled to come before this Board and ask for a variance. He stated that I don't know how these other things were platted without our variance.

Mr. Detert stated I'm not sure. He stated that at one time, I think it even was bigger than 96 feet.

Mr. Robertson stated, yeah, it was 120, I think.

Mr. Detert stated, it's in there. He stated, I'm not sure I could lay my hands on it.

Mr. Robertson asked, do you know when yours was platted, that you got this 30-foot easement?

Calvin Clemans stated 1980.

Mr. Detert stated, '83 was the other ordinance.

Calvin Clemans stated, the thing is, in '89, when my dad built the house back on the 14 acres, he filed for a variance so he could build a house back there, and according to the minutes and everything, he was denied, or not denied, but withdrawn, but he still got a building permit to build.

Wilbert Clemans stated that I got the building permit on the 96.

Mr. Detert stated that, gentlemen, you got a couple things you can do. He stated that you can grant it if needed, or you can continue it until we get some better input from Bob Thompson.

Mr. Robertson stated, I feel that we don't need any input as to whether or not it's 96. He stated that I'm satisfied that it's 96 and that we have the right to give him, grant a variance if we feel it's a hardship. He stated that I'd be inclined to go along with it since we already seem to have done this for this other parcel here. He stated, he's not going to create…I mean there's already an easement there, which goes to this Jackson minor subdivision with no homes on it. He stated that it would be a hardship for him in Parcel 1 not to be able to utilize an easement that's already been dedicated to Jackson minor. He stated that nobody in the area seems to complain. He stated that none of his neighbors are creating a problem on it.

Mr. Brickner stated that I don't have a problem with it and none of the neighbors or none of the other people do and this is a hardship. He stated that he has no other way to go. He stated that he's not going to get another 36 feet anywhere, so…

Mr. Brickner moved to approve Case 04-V-3, incorporating the petitioner's proposed findings of fact, said findings being in the file. Mr. Robertson seconded the motion, which carried on the following ballot vote:

Brickner - Yes Robertson - Yes Detert - Yes

At this time, Mr. Siminski stated that Mr. Thompson said he has been getting a number of inquiries about cell towers and he suggests, and is asking the Board, if we can only do one a month, or as they come in.

Mr. Robertson stated that that's what we had decided.

Mr. Detert stated that we felt that one a month would be enough for us.

Mr. Siminski stated that otherwise the meetings would be really long.

At this time, Mr. Brickner stated that we talked about 6:30. He asked if that issue is still…

Mr. Detert stated that we can always change the time.

Ms. Schaefer stated that I think that both meetings ought to be at the same time.

Mr. Robertson stated that it doesn't bother me at 6:30.

Mr. Detert stated that sometimes that makes it hard for someone that's working. He stated that I don't know what Rich Hudson's situation is. He stated that it probably would be all right with him.

Mr. Robertson stated, well, let's ask him and we can bring it up at the next meeting.

There being no further business, the meeting was adjourned at 7:40 p.m.

PORTER COUNTY
BOARD OF ZONING APPEALS

Robert Detert

Attest: Fred Siminski, Assistant Director/Zoning Inspector