BOARD OF ZONING APPEALS

Regular Meeting
August 18, 2004

M I N U T E S

The regular meeting of the Board of Zoning Appeals was held on August 18, 2004 at 6:30 p.m. in the Porter County Administration enter, 155 Indiana Avenue, Valparaiso, Indiana.

Those members present were Marvin Brickner, Richard Burns, Rich Hudson and Robert Detert. Staff members present were Fred M. Siminski, Attorney Lily Schaefer and Toni Byers.

Mr. Hudson moved to waive reading of the minutes for the July 21, 2004 meeting and to approve them as received in the mail. Mr. Brickner seconded the motion, which carried on a 4-0 voice vote.

Pending Business:

Case 99-V-46. Joseph Royko, 342 E. 1300 N., seeking an extension of a Temporary Certificate of Occupancy for a mobile home, on the South side of CR 1300 N., between Brummitt Road and CR 375 E., in Pine Township.

Mr. Siminski read a letter from the petitioner requesting a renewal of this TCO.

Mr. Brickner asked what the original reason was for this TCO. He asked if it was for Mr. Royko or somebody else.

Mr. Siminski stated that on the application it said for the next generation to live in the main house and the trailer will be used in the summer for the retiring generation to dwell in. He stated that it talked about his current medical condition.

Mr. Brickner moved to approve Case 99-V-46 for 1 year, with the petitioner to appear in person. Mr. Burns seconded the motion, which carried on a 4-0 roll call vote.

Case 99-V-47. Raymond & Sherry Carver, 561 N. Old SR 2, seeking an extension of a Temporary Certificate of Occupancy for a mobile home, on the East side of Old SR 2, between CR 500 N. and CR 600 N., in Washington Township.

Mr. Siminski read a letter from the petitioner requesting a renewal of this TCO. He stated that he tried to make contact with them, but couldn't, but there is a mobile home on the property.

Mr. Burns asked what the original reason for this was.

Mr. Siminski stated that it was the mother's financial problems and poor health.

Mr. Burns moved to approve Case 99-V-47 for 1 year. Mr. Brickner seconded the motion, which carried on a 4-0 roll call vote.

Case 01-V-22. Michael Ruggaber, 49 E. SR 8, seeking an extension of a Temporary Certificate of Occupancy for a mobile home, on the Northwest corner of SR 8 and Baum's Bridge Road, in Pleasant Township.

Mr. Siminski read a letter from the petitioner requesting a renewal of this TCO.

Mr. Burns moved to approve Case 01-V-22 for one year. Mr. Hudson 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 04-V-18. Petition of Cindy Hall, 2003 Old Oak Drive, Valparaiso, seeking a Variance in street construction code for a major subdivision from Sec.16.16.020(D)(3) of Title 16 of the Porter County Code, to be located on the West side of SR 49, between CR 400 S. and CR 500 S., in Morgan Township.

Eric Banschbach stated that he is representing and accompanied by the petitioner in this matter. He stated that to give you a little background on this, we were at the April 9th Planning Commission meeting and received primary plat approval of the subdivision with a Variance for the street construction, the code for the major subdivision, but since Planning Commission can't give Variances for that, that's why we're in front of you tonight. He stated that we were required to do the major subdivision because the parent parcel of this, there's already a minor subdivision and you can see on the plat and the plat that you have directly South of this, so the parent parcel already had one minor subdivision and this is a 4-lot major subdivision, which, of course, by your ordinance, requires the County spec road. He stated that the Variance is to construct an 18-foot wide gravel road with 10-inch depth of compacted aggregate. He stated that it's only going to be servicing four lots, which is the same as the driveway on the 4-lot minor sub to the South and the cost of installing the County spec road for the 4 lots precludes the development of the 4-lot minor. He stated that I do have a letter from the County Highway representative, Dave Schelling, basically agreeing that the 18-foot stone road is adequate for the traffic and he's pleased with the entrance on SR 49 being shared with the other minor subdivision to the South. He stated that he is providing a copy of that letter to the Board. He stated that other than that, I'd be happy to answer any questions.

No one spoke in favor of this petition.

Daniel Ziller, 412 S. SR 49, stated that I was just discussing this with Mrs. Hall before the case got brought up and I think she explained it okay. He stated that if I could just get clarification that…it's going to come off that driveway that's next to ours? He stated that the question is, it won't be going through my front yard?

Nicole Ziller, 412 S. SR 49, stated that my concern was that it would affect our property because I was concerned about the traffic and that was basically my main concern. She stated that I didn't want our property to be affected by this because I didn't think it should be.

Mr. Banschbach stated that the first concern, access, I am assuming was how does the 4-lot minor get accessed. He stated that the access is from a single access off of SR 49, which accesses both the 4-lot minor to the South and the proposed 4-lot major to the North. He asked, what was the address on theirs? He stated that if the question is is it going across your property, no. He stated that the existing access which is currently improved that was constructed by the minor subdivision to the South accesses…the minor sub that is proposed accesses from that same point, and the driveway will be on the South portion of this 4-lot minor subdivision.

Mr. Ziller asked, is it going to run parallel with that road that's already there?

Mr. Banschbach stated, yeah, it runs parallel with the South line of the property as well as the North line of the property.

The public hearing was then closed.

Mr. Burns stated, I don't have any problems with this.

Mr. Hudson stated, as long as he's got the letter from Schelling.

Mr. Brickner stated that I don't have any questions at all.

Mr. Hudson moved to approve Case 04-V-18, incorporating the petitioner's proposed findings on facts, 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 04-V-19. Petition of Bosky Development, LLC, 141 Westchester Lane, Valparaiso, seeking a Variance from the maximum allowable block length of 1,250 feet in a subdivision to 1,617.16 feet for Surrey Hill Lane in Shorewood Forest Section 29, to be located on Surrey Hill Lane, between Shorewood Drive and Dorchester Boulevard, in Union Township.

Mr. Banschbach stated that he is representing the petitioner in this matter. He stated that we are seeking a Variance again from the maximum allowable block length. He stated that to give you a little bit of background, we are proposing a 10-lot major subdivision of a 16.82 acre parcel which was previously part of a 27.8 parcel owned by the Shorewood Forest Property Owners' Association. He stated that my client purchased the 16.82 acre parcel from the Shorewood Forest POA in hopes of developing the parcel and building a home for himself on it. He stated that the parcel was sold on condition that the developed parcel be part of the Shorewood development, the overall Shorewood development, and in fact it will be Section 29 of Shorewood Forest; have no more than 10 lots; do not have its own access outside of the development and the POA would retain portions of the original parcel. He stated that they are retaining a 198-foot strip up here, 100-foot strip along the North, a 100-foot strip along the East side of the parcel and a portion that fronts on a portion of the lake. He stated that ultimately the plan that you see before you is a result of the requirements that my client was contractually obligated to meet, which is to illustrate my client's limited access to the street connections. He stated that what my client is asking for tonight is basically an additional 376.16 feet of block length over the maximum allowable of 1,250 feet, without the extension to a boundary line. He stated that in this case it would not be appropriate because, one, the additional 376 feet would not measurably increase the likelihood of access along the road to be blocked. He stated that the proposed development is only adding a maximum of 10 residences. He stated that the length of the proposed block is consistent with the overall development of Shorewood Forest. He stated that the proposed addition would actually be on the short side of existing blocks in Shorewood Forest, and to illustrate that, if you look at the overall development of Shorewood Forest, you can see Wessex Road, which is this road right here, has a block length of 2,399 feet; Shorewood Court, which is this extension here, a block length of 1,609; Devon Road, which is this extension here, 2,091 feet; Scarborough Road, which is this extension here, 2,535 feet; Amhurst Road, this extension here, 2,211 feet; Ashford Lane, which is this extension, 1,617 feet; and Wexford Road, is one of the longest, having a block length of 3,733 feet. He stated that our proposed subdivision would be located right here. He stated that we are extending Surrey Hill Lane to the East and to the South off of Dorchester Boulevard. He stated that in addition, other developments in the County have similar extended block lengths. He stated that for example in Hawthorne subdivision, Thornhill Drive, the block length of that is 1,356 feet, no connection to the adjoiner with single access; St. Andre, St. Andre Drive, block length of 3,188 feet and single access, no connection to the adjoiner; Spring Meadow Estates, total block length if you include the enclosed driveways around there, is 4,574 feet, with, again, single access off a County road with no connection to the adjoiners. He stated that the connection to other roads would not be feasible based on the POA owning the 100-foot strips along the North side, along the East side.

He stated that the topography of the site would require some pretty deep cuts in order to cut any roads into the proposed development. He stated that the lots to the South have already been improved; there are already existing houses on there and they're all owned separately, they're not owned by the POA. He stated that that Shorewood community was developed and sold lots advertising the maximum in beauty, privacy and personal enjoyment. He stated that the connection to the proposed Edgewood development would, most likely, eliminate the privacy aspect of their sale ads and it would most likely reduce the sale value of the proposed homesites in this particular development a well as, most likely, the resale value of the existing homes along Dorchester and Surrey Hill due to the increased traffic and reduced privacy. He stated that in correspondence with the Union Township fire department fire chief, which I have a copy of an email, he writes that he had no problem with the Surrey Hill extension and if you want a copy for the record…He stated that I also have a letter from the Shorewood Forest POA's attorneys endorsing the proposed development and reiterating their agreement with my client. He stated that he is giving the Board a copy of that.

Brian Less, 7980 Catalpa, Dyer, IN, stated that I'm the attorney for the Shorewood Forest POA. He stated that Christian Anderson is here and he's the community manager for Shorewood Forest POA. He stated that Susan Schwab is also here and she is the assistant community manager and Cathy Guy is the POA Board president and she is also present here today. He stated that this has obviously been a culmination of a lot of negotiation and a lot of issues being hashed out between the petitioner and the Shorewood Forest POA and we would like to go on record and state that we're absolutely in favor of this. He stated that we think it's important and it's good for the community and we ask that you accept this variance.

No one spoke against this petition.

The public hearing was then closed.

Mr. Hudson stated that it seems to be consistent with the roads and developments within the Shorewood development, so I don't see where there are any issues, especially if no one has come tonight to express any displeasure with it, and the fact that the POA has accepted it and I'm in favor of it.

Mr. Brickner stated that I don't have any questions. He stated that one thing that jumps out here is the size of these lots are huge compared to the rest of the surrounding area. He stated that I would think that this would be an advantage myself. He stated that I think it's a good idea.

Mr. Burns stated that I agree with Rich's comments.

Mr. Hudson moved to approve Case 04-V-19, incorporating the petitioner's proposed findings of fact, 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 04-V-20. Petition of Design Collaborative on behalf of Verizon, 825 S. Barr St., Fort Wayne, IN, seeking a Variance from the minimum required rear-yard setback from 20 feet to 6 feet and the side-yard setback from 8 feet to 2 feet (on the North side only), to permit construction of a new telephone equipment building around an existing equipment building, to be located on the East side of SR 49, East of CR 325 S., in Morgan Township.

Tim Hamilton stated that he is representing the petitioners in this matter. He stated that I am here this evening on behalf of Verizon to speak in favor of this Variance request. He stated that the current building which sits on this property has reached the end of its useful life. He stated that I've got a photograph of the existing building that I'd like to pass around. He stated that this existing building needs to be replaced with a new building. He stated that the current building houses telephone switches for land lines that serve that region and that area. He stated that in order to preserve those land lines we need to build a new building and in order to do that, we have to do it around the existing building and then we'll tear the old building down once we do that. He stated that with this and the size of the existing lot that is currently there it's not feasible to stay within the setback limits on the property that is currently there. He stated that matter of fact the existing building that is there now encroaches on the current setbacks of today. He stated that this building has been there for several years. He stated that I have a drawing that basically the top drawing here shows SR 49, it shows the existing building; this is the property itself here. He stated that there is an existing farm field to the North and the East of it, an existing farm field to the South and West of it. He stated that currently there is a fence row that's right along here and you can kind of see that in the photograph. He stated that you can see it's very close to the edge of the property now. He stated that this property is only 30 feet wide from North to South. He stated that what we are proposing to do then is to build a new building around that existing building. He stated that there is a front yard setback from the centerline of SR 49, which is 80 feet, and in order to do that we can't really come forward because of that and there's also an existing manhole there with phone lines going through it and we can't cover it up with the building, so, therefore, we are requesting the setback from 20 feet in the rear to be 6 feet, which will still allow room to maintain around the building and then on the North side from the setback to be 8 feet to 2 feet on that side. He stated that we can't just pick the building up and move it to a new location because all the infrastructure is already there, all the phone lines currently all come in there into that switch. He stated that what I also have then is a photograph of what we are proposing for the new building, what the new building will look like, which will be a brick building, which will be durable and last for several years. He stated that this building which we are proposing would also have room for future growth in it so we wouldn't have to enlarge it in the next 20 or 30 years.

No one spoke in favor of this petition.

No one spoke against this petition.

The public hearing was then closed.

Mr. Burns asked where the manhole is located.

Mr. Hamilton stated that the current manhole is right here. He stated that they are just going to build a new building just far enough West to get around that manhole, to leave that manhole intact. He stated that that's a utility manhole by the phone company.

Mr. Burns stated that I was wondering because you have a lot of space to widen the building instead of going back.

Mr. Hamilton stated that the reason we need it is to be able to get equipment inside the building and to be able to get around and work inside the building. He stated that we've got this close enough that we are going to have difficulty just in the construction to be able to do that. He stated that the other issue would be in case of a loss of power they would need to bring a generator in potentially, set it here and it should set alongside the South side of the building to hook in to give the building power. He stated that the building has a limited power supply based upon a power outage. He stated that after that amount of time a generator would have to be brought in.

Mr. Brickner stated that I don't see any fencing around this building or any planting of any kind. He stated that that was never, I guess, part of the original project, but according to this picture it just sits out in the open. He asked, do you plan to put a fence around it to protect it?

Mr. Hamilton stated that we don't typically put fences around the buildings themselves because we find that it leads to kids and stuff trying to get in and then being able to get in there and be hidden in there. He stated that this being open it's more visible. He stated that this is our standard that we typically do with Verizon. He stated that we completed a project similar to this on CR 450 E. last year, just off of SR 2.

Mr. Brickner stated, I see. He stated that right now it's just cornfields around there and the landowner has no objection, evidently, doesn't care about the setbacks, so I guess I don't have a problem, but do you think we ought to have him plant something around it.

Mr. Burns stated that that one picture shows some plantings. He stated that I'd like to see some landscaping.

Mr. Brickner stated that that's just an example of what they're…I don't know if the Board feels like there should be anything around that building, plantings of any kind. He stated that as long as it's a cornfield, it's okay, but if it ever gets to a place where it's a subdivision of some sort or a rural residential area, some kind of arborvitae or something around the building wouldn't hurt. He asked, would you do that?

Mr. Detert stated, I would think that a chain-link fence or something when it becomes populated would be protection for them.

Mr. Hamilton stated that in the past with subdivisions we have screened the building with arborvitae. He stated that that is typical where we have a subdivision, something to screen it. He stated that putting anything on the North side of the building I think would be more in the farmer's way, with the crops that he has there and along that side of the property, and so, the more likely area would be to the back or to the South side, and if it were a requirement of the Board of Zoning that if a subdivision were developed there that we screen it, we would certainly do so. He stated that at this time, I think what the farmers are doing are also accessing their property off of this curb cut because there's a very deep ditch either side and they move through the current stone lot that's there now and we don't want to obstruct them in any way at this time.

Mr. Brickner stated, I don't have a problem with it. He stated that I thought maybe we'd want to see something like that.

Mr. Detert asked, would you be amenable to sometime in the future if we requested screening if it got built up in that area that you would do so.

Mr. Hamilton stated, absolutely.

Mr. Detert stated, I think it would be for your protection, because once you get neighbors close and you get kids who are a bit mischievous sometimes, why, it might be to your own benefit to have something there.

Mr. Brickner moved to approve Case 04-V-20, subject to if the surrounding property becomes residential or a development that they put a chain-link fence and some plantings to screen this building from the surrounding property, incorporating the petitioner's proposed findings of fact, with the addition of the chain-link fence and plantings, 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 04-V-21. Petition of Edgewood LLC, c/o Todd A. Leeth, Hoeppner Wagner & Evans, 103 E. Lincolnway, Valparaiso, seeking a developmental standards Variance for a PUD, to be located on the South side of U.S. Hwy 30, between CR 375 W. and CR 525 W., in Union Township.

Mr. Hudson stated that he will be abstaining from voting on this matter as he is doing work for the developer as far as construction staking on the site.

Todd Leeth stated that he is representing the petitioners in this matter. He stated that this is a Planned Unit Development on 24 acres located on the South side of U.S. Hwy 30, completely surrounded on three sides by the Shorewood Forest subdivision. He stated that this evening's presentation is somewhat difficult because it comes to you so late in the game of the approval process for this development, and, perhaps let me kind of take a step back and go back through a little bit of history of this project. He stated that I don't want to go into the detail of the project unless the Board has individual questions regarding that. He stated, first, when my clients were interested in acquiring this property and ultimately acquired the property, a large part of the year of 2002 was devoted to negotiations with the Shorewood Forest utilities and Shorewood Forest Property Owners' Association. He stated that that culminated in the formal agreement with the association and the utility that indicated that the utility would provide sanitary sewer service to the 50-lot Planned Unit Development and that the developer made certain concessions with regard to the development of the project, primarily, on our Eastern border, you'll see that the lot sizes are larger than the balance of the rest of the development. He stated that you'll also note that we have a large detention area which is a wetland, as well as a wetland in the North and the plan preserves those, as well. He stated that through the process of the negotiation with the association and my clients, we agreed to eliminate a certain number of lots along the East, provide for and protect some existing planting and screening to the Shorewood Property Owners who are immediately adjacent to our Eastern boundary. He stated that we don't have homes immediately adjacent on this side, though I believe the association has, after we acquired our property, acquired that property, as well, that lies between that and the subdivision proper a short distance to the West. He stated that once we had that agreement with the association and knew where our sanitary sewer was going to be provided, we approached the County and started the process - which is a four-step process, as you know, of getting the Planned Unit Development approved. He stated that the first step was to petition the Plan commission, which was done in January of 2003. He stated that the case was then referred favorably to the Board of Commissioners who then returned it back to the Plan Commission. He stated that there were some questions primarily regarding the variances, the very reason we're here tonight. He stated that at that time, the Plan Commission adopted written recommendations, many of which addressed, in detail, the very issues and variances that we're asking you to approve tonight. He stated that that was in February of 2003 and with the favorable recommendation then of the Plan Commission the second time, it was returned to the Board of Commissioners and was unanimously approved in March of '03. He stated that that resulted in the adoption of Ordinance 03-02 and part of that ordinance incorporates, by reference, a series of plans, one of which is the drawing that I have provided to you on the board this evening. He stated that following that, we then have to return back to the Plan Commission under your procedures, under the County's Planned Unit Development ordinance. He stated that we return back and treat it more as a traditional subdivision at that point in time, because we have our zoning, and that's the Planned Unit Development ordinance, 03-02 that I referred to. He stated that we received the Plan Commission's approval of the primary plat for this very layout and design and that was obtained in October of 2003. He stated that before we could return to the Plan Commission and receive our final plat for the process, for the PUD, which would end all of the governmental approvals, Judge Alexa issued a ruling in June of this year on an unrelated case that had to do with the Aberdeen development and one of their phases, which is also a Planned Unit Development, and Judge Alexa's ruling calls into question the propriety of the Board of Commissioners and the Plan Commission and their ability to grant variances through the Planned Unit Development ordinance. He stated that we can all discuss whether or not Judge Alexa's ruling is correct or not, but be that as it may, we are now returning to you to have you review the Planned Unit Development ordinance and the five developmental standard variances that were granted by the Plan Commission and the Board of Commissioners when they adopted 03-02. He stated that those variances are set forth in the ordinance. He stated that they are lot size; the lot sizes vary greatly. He stated that as I indicated, these lots sizes, frankly, are larger than required by the R-1 current zoning and the most important part, I guess, is the R-3 criteria because this is a Planned Unit Development. He stated that the lot sizes through the backs of the development are less than the required ordinance, which I believe is 12,000 square feet in size. He stated that we have reductions in rear and side and front yards, as well. He stated that in the requests before you. He stated that those variances apply to a majority of the lots. He stated that we do not have a table to tell you which lots do not comply, but you can pretty much indicate that all the lots require variances, probably with the exception of the buffer lots, the larger lots, 2-10, the 9 lots on the Eastern boundary on the East side of the subdivision. He stated that that's the process that brings us here to you tonight in our efforts to develop this subdivision, this planned unit development, through the planned unit development statutes of the County. He stated that I would be happy to answer any questions with regard to any specific issues or any specific lots or variances that are part of the petition, but frankly they are so numerous that I don't want to go through them all in the interests of time, recognizing that I believe this is more of a housekeeping matter, rather than a true issue, given the fact that we received the approvals of the County in the past. He stated, with that, I'll be happy to answer any questions that you might have or those that arise from the public.

No one spoke in favor of this petition.

No one spoke against this petition.

The public hearing was then closed.

Mr. Burns moved to approve Case 04-V-21, incorporating the petitioner's proposed findings of fact, said findings being in the file. Mr. Brickner seconded the motion, which carried on the following ballot vote:

Brickner - Yes Burns - Yes Hudson - Abstain
Detert - Yes

Case 04-PUV-2. Petition of Lisa's Gymnastics, 5347 Hwy 6, Suite A & B, Portage, seeking a Permanent Use Variance to permit operation of a gymnastics facility, to be located on the East side of CR 700 W., about 600 feet South of CR 700 N., in Portage Township.

Pete Brandon stated that I am with Chester Inc. and I am representing and accompanied by the petitioner in this matter, Lisa Whipps. He stated that we are here on behalf of Lisa's Gymnastics to ask for a permanent use variance for the parcel that we have illustrated on the board here. He stated that it's about a 10-acre parcel fronting on CR 700 W. and it's about 660 feet South of CR 700 N. He stated that it is screened on the North side with some dense woods, as well as on the East side and I believe there is a farm field behind those woods to the East. He stated that these lots are almost 1,300 feet deep and 66 feet wide. He stated that the parcel in question is 332 by 1,298 or so deep. He stated that we are asking for a use variance. He stated that the parcel is zoned Rural Residential and we are asking for a use variance for a gymnastics facility and it's a building that would be about 80 feet wide by 140 feet long. He stated that the 80 feet would be the part that would be exposed to the road and the 140 feet would run the length of the parcel. He stated that the development would have the parking area entirely behind the building and I think I'd like to have Lisa Whipps, who is the owner, Lisa's Gymnastics, give you a brief description of what her operation and her business does.

Lisa Whipps, 507 Shamrock Lane, Valparaiso, stated that I've owned the business for 15 years and I have grown out of building and building as our little girls keep multiplying and now I'm not actually in need of more space - I'm in need of one building. She stated that we are currently in two buildings and we have small children from the age of 2 to about 18. She stated that we house Hobart High School Gymnastics program that just won high school state last year, IHSAA, and their school is not large enough to house a gymnastics program so they utilize my facility free of charge for their athletes. She stated that I've worked with handicapped kids and I have Century children come over there, under-privileged children to use my facility, so it's for a lot of positive purposes for children along with our athletes that are training for upcoming high school teams and hopefully some collegiate gymnasts. She stated that at any give time there are 30 to 40 children in the gym. She stated that most of our kids are dropped off and picked up. She stated that some of the preschoolers' parents do stay, so there's not an overabundance of cars in that facility and that's why we have put the parking to the rear, knowing that we would be in a residential area and we wouldn't want all that parking out in the front.

Mr. Brandon stated that the building is primarily a large open gym. He stated that it would have a lobby area with observation windows, and then there would be some locker room, restroom facilities in that area, but 80 to 85 percent of the building would be an open gym. He stated that it would be a steel frame building, basically rectangular. He stated that I would point out that this parcel is 332 feet wide, with an 80 foot wide building. He stated that that gives us 252 feet of side yard, that would be divided on either side, so that would be a substantial separation between the building and the adjoining properties.

Ms. Whipps stated that the reason for coming into the township area, we have not been able to find a property site in the City limits that accommodated both our use of the building and the type of building. She stated that generally they put these types of buildings out on route 20 and that's just not feasible to put small children in those light industrial areas. She stated that that's why my original search turned to the county rather than in the Portage city limits.

No one spoke in favor of this petition.

Thomas Kalber, 675 N. 700 W., stated that my property is less than 200 feet from this property. He stated that at one time this was all considered wetlands because my property and the property between mine and this all the water runs to the North. He stated that if this was to be blocked over there our water would have no place to go and at one time the property next to us built a building and he wanted to put a business there and the commissioners would not allow it in a residential neighborhood, so the business was not put in there.

Vera Kalber, 675 N. 700 W., stated that we prefer to keep our neighborhood residential. She stated that we have been there over 40 years on this property in the neighborhood.

Ethel Krohn, 673 N. 700 W., stated that I just want it to stay residential, not business.

Reggie Osborn, 688 N. 700 W., stated that I live right across the street there. He stated that if they build there, that means I get more water and all the water that stayed over there is going to come to my side. He stated that when we get a big rain it floods, 'cause it comes down the road and goes under the road and comes up on my side of the road and it looks like a riverbed. He stated that if they want to build over there and put up a big parking lot or something, that's going to make the water come more towards me and it's going to flood me out. He stated that I want to keep it residential anyway.

Terry Shaw, 652 N. 700 W., stated that I'm a considerable amount down the road, a little bit closer to the golf course than most of the folks and 30 years ago when we moved out to that road, we did so because it was residential and because we wanted to keep it that way. He stated that we've seen that area change. He stated that we have picked up excessive amounts of traffic as a result of the improvements in the road and people using it going back and forth to work, in addition to the Kmart, Wal-mart additions out on 6. He stated that when we put in a golf course, many of us were in favor of it. He stated that we were in favor of it for selfish reasons, I'm sure, because it allowed us to have protection against one humongously big subdivision in the area. He stated that when they put the restaurant in the golf course, that seemed to be no problem, but that got zoned so that it then could become a nightclub. He stated that my concerns are, and I would like them to be considered, is wishing this project no ill will and the fact that they have grown and have to move on, when they move on, then what would that property be available for, in addition to all the other things that we have to deal with in regard to traffic and stuff?

Mark Riggle, 679 N. 700 W., stated that I own the property directly South. He stated that my main concern would obviously be the water problem. He stated that the property to the North side of it is currently there is standing water and wetlands towards the back. He stated that the main problem I have is it would visually kill the value and resale value of my property, putting a commercial building right next to a residential home. He stated that I've dumped over $250,000 into my property. He stated that they are going to start a commercial business directly between two homes. He stated that I don't need the increased traffic. He stated that this is all open land here that I have and I have a direct view of their parking lot. He stated that all the cars would be directly in my back yard. He stated that that would be my main concern, so I'd like to keep it residential.

Larry Drake, 680 N. 700 W., stated that I am directly across the street. He stated that I have several reasons why I'm concerned about the creation of this particular variance. He stated that first of all, the drainage, which most of the people have mentioned, drains through a dry creek through the Northern part of my yard and Mr. Osborn's and when we have heavy rains we have tremendous runoff from some of these people's properties now comes from the back and it drains between our properties behind the Central Baptist Church and all along County Line Road. He stated that if you've ever been in our district, you know we have a significant amount of flooding when we have a heavy rain in a short period of time. He stated that in addition to that, you have a residential community that does not have sanitary sewers. He stated that she's talking about having 20, 30, 40 girls at a time and that would not be on sanitary sewers; that would be on a septic system. He stated that the road is narrow there. He stated that the shoulders are very narrow and it drops off quickly. He stated, ask any of us who mow along there and try to keep it looking decently. He stated that as some of the other people have said, they've been there 30, 40 years. He stated that my wife and I have been there over 20 years. He stated that it's a very stable neighborhood and it was intended to be residential and we wish to keep it that way. He stated that just the fact that the applicant is asking for a zoning variance from commercial to residential…she previously had an application with the City of Portage for a variance of covenants at a previous location and it was denied. He stated that I think possibly it would be appropriate for her to make some changes to her plans instead of us changing ours.

Ruth Drake, 680 N. 700 W., stated that I've been a teacher for 34 years and as such I know that parents don't always come and pick up their children when they're supposed to. She stated that respectfully I'd like to repeat what Mr. Detert said when he said that children have the propensity for being mischievous when they're idle, and if kids are sitting around waiting for their parents to come, that leads to the possibility of misbehavior. She stated that I don't want the lights, I don't want the cars, I don't want the music. She stated that we fold up over there at about 7:30 and we want to keep it that way.

Roandi Solivais, 688 W. 700 N., stated that one of these would be my property, the heavily wooded. She stated that it's not heavily wooded; behind my neighbor's property it is. She stated that there's a wetland property that's sitting idle right now. She stated that it is flooded. She stated that somebody tried to build there and they weren't able to get septic approval. She stated that it then is wooded from the road, and it is flooded, I think even now, and then my neighbor's property, it would be 690, she has woods in her back yard, and then there's my property. She stated that I have a willow tree on the West side and some other tree on the other side and then the next couple houses over, they aren't heavily wooded as this picture shows, but there are the dense woods back here, but I can say three or four of these may not be wooded. She stated that the traffic is unbelievable. She stated that building the Kmart, the golf course, the bars, I've gotten many people out of ditches in my front yard and then along 700 W., I call it Highway 700 N., it's 700 W. She stated that after 6 o'clock in the morning, I run on the roads and I shouldn't be because you're going to have kids and major traffic. She stated that the golf course, it is beautiful, but the traffic's increased because of the golf course. She stated that you can see that. She stated that the schools, when school's out, the traffic increases incredibly and when the property first went up for sale, I got all excited because the sign was up "for sale" and it was (inaudible), so I ran home and got my camera and went back and took pictures of it and…there is a flood…we have a creek going across our back yard, so if you're having a water problem and my property is to the North of the Southern property, you know, I guess, I just don't understand why all the building in residential. She stated that I would rather see one building than a major subdivision put in there, but why here? She stated that by 7, 7:30 at night we're all…you know, it's residential and the traffic is just, you know. She stated that as for children being idle, we have an electric fence to keep our horses in and I would hate to see, you know, somebody hurt.

John McBrayer, 660 N. 700 W., stated that they didn't address the additional traffic on that road and that road is very busy. He stated that they've all made comments about it. He stated that 700 W. is a shortcut from Hobart to Portage. He stated that they come across there so they don't have to hit the other roads. He stated that that's one of my concerns because of the children in that area. He stated that there are a lot of young children on that street and there are no sidewalks, so that puts them on that street, and the additional traffic is just going to make it that much more hazardous. He stated that the other thing I didn't hear them talk about was septic system. He stated that septics are very hard to come by out there. He stated that if you ask anybody that's built a house out there, the septic system is hard to come by, and that is in a wetlands, so it's going to be even harder, so those two questions I'd like to have answered.

Don Riggle, 675 N. 700 W., stated that I'm the person that has an interest in the property to the South of this and I'm the person that does the maintenance. He stated that I cut the grass, I cut the fire lanes at the request of the fire department across the property because nobody takes care of it the last 20 years and I will attest to the water problems. He stated that 375 acres drains across the property to the South, which had culverts installed so the neighbors could have their water drained. He stated that it drains 166 feet to the South line - there's two lots there - and that water comes across there and it would be bad even for a residence. He stated that I don't see how it can perk out there. He stated that the drop from the drop to the South is approximately 3 or 4 feet and it's even more drastic than that going across the middle of the lot, where the parking lot would be, which would be about 180 feet back. He stated that in 1992 a farmer came in and leased this property. He stated that he put corn in there and he didn't plant that corn right for that ditch. He stated that it was fine for the summertime, but come wintertime, in fall and spring, we flooded out. He stated that I had 6 to 8 inches of water over on my property over there, and needless to say, my shrubs and everything rotted right out because the water was all backed up, so that is a water plain that comes all the way through there and goes to Lake George, to give you a picture of it, so it would be hard for a residence even to go in there.

Dennis Kaminski, 656 N. 700 W., stated that I am just down the road a little bit from there. He stated that for all the reasons that my neighbors have said, we are opposed to it, too. He stated that for all the different reasons - they've mentioned the traffic, but what they didn't mention about the traffic is, the posted speed limit there is 30 miles an hour, but I would say that nobody that drives through as a cut-through takes it at 30. He stated that people are going 50 miles an hour. He stated that I almost get knocked off my riding lawnmower sometimes when I'm out on the road trying to cut grass and that's a big concern, the fact that they don't observe the speed limit. He stated that the one lady is the runner out there. He stated that I usually see her in the morning when I'm going and I know that people whiz by her real fast; that's a dangerous thing. He stated that the other thing, too, is the water. He stated that we have tremendous flooding in our yard, as well, and we are opposed to it for those reasons, as well. He stated that in addition to that, I'm also a high school teacher, and she mentioned that they house Hobart High School, and I know what high school kids can do. He stated that they drive and I know what trouble they can get into. He stated that I'm the student council sponsor. He stated that I've been an assistant basketball coach. He stated that I've been active in a lot of things over the years. He stated that I teach at Highland High School and I know what teenagers can get into and I know what kind of trouble they can cause and, um, you know, that's also a possible problem as well, and so, for all the reasons that they said, I'd like to go on the record as saying we're opposed to it, too.

Fred Ahlemier, 654 N. 700 W., stated that I'm opposed to it for the same reasons that everyone else here is talking about. He stated that we have kids on the roads, walking on the streets, and I don't think it's proper for that to be in a residential area.

Mr. Brandon stated that first of all there were some comments regarding the neighborhood essentially closing up at 7:30 in the evening. He stated that I'd like to have Lisa again explain the hours of operation relative to that and I don't believe that the hours of operation would interfere with quiet evening time in the neighborhood.

Ms. Whipps stated that our doors are actually locked at 9:00. She stated that the majority of our children are actually out at 7:00. She stated that the majority of our children are preschool age to school age, not junior high or high school children. She stated that we do have high school children in our gym. She stated that our ratio is 6 children to each coach. She stated that our children are currently on Route 6. She stated that we do not allow them out our front door without supervision. She stated that they stay with their coaches until their parents pick them up. She stated that never are they allowed outside our door. She stated that right now we're in a location that's across the street from a gas station where a gentleman was killed. She stated that that is the policy of our gym: We do not let them out the front door, no matter what age they are. She stated that if they are junior high school they wait inside the facility until their ride comes. She stated that as far as the water problems, these also are a huge concern to us. She stated that some of the other properties that we had looked at were also in a drainage ditch area and I did know there were some water problems by having friends that have day-care on 700, which is just around the corner from this property and she has told me that she cannot get a bigger septic system where she is at, so we were aware of that, but at this first hearing we are just seeing if we can use that property first without going any farther with anything else. She stated that as far as Chester's construction, I am completely entrusted in them that they would be able to with this amount of property retain the water appropriately. She stated that the building is a very small building in proportion to the property size. She stated that I think that's about the only thing I can tell you.

Mr. Brandon stated, first of all, we're not requesting a change in zoning; we are requesting a Use Variance within the RR zoning.

Mr. Detert stated that a Use Variance would restrict it to any future owners to only be able to carry on what's being carried on now. He stated that it would not be an open zoning where anything would go.

Ms. Whipps stated, and I have absolutely no problem with that. She stated that I don't plan on ever retiring, unless I have to. She stated that I've been doing this my whole life, since I was 9 years old. She stated that my children are active in it. She stated that my intention is to pass it onto my children.

Mr. Brandon stated that there was a comment made about when she opens this facility, she'll move on and then what's left of the property. He stated that this piece of property, when you put an 80 by 140-foot building on it, it looks pretty small on this piece of property. He stated that when you put an 80 by 140-foot building on a piece of property that's 1,300 feet long it doesn't even come close to going halfway back on the property. He stated that when I did go out to take a look at the property I walked probably about halfway back and just halfway back is plenty of room to put this facility in with the appropriate septic and parking area and drives. He stated that the drainage issues which have been brought up, when we would do the drainage design for this property we would make sure that the runoff from this property would be at least no more than it is now by the use of either a detention or retention pond. He stated that I think Rich is well aware of how that can be accomplished, and if we had to put even a larger pond in to try to help improve the drainage situation in the area we would be willing to do that. He stated that we've done that on some other projects that we've worked on.

Ms. Whipps stated that I would not be against at all using the remainder of the property to try to eliminate, if we could, some of the drainage problems. She stated that I do not have any other plans for this property, other than this building.

Mr. Brandon stated, the question of the septic systems, we are aware, because of the fact that we have had to do a lot of projects in unincorporated areas, we're very aware of the state and local requirements for obtaining a septic permit.

Mr. Detert stated that that would be a Health Department issue.

Mr. Brandon stated, but we are aware, we have been very successful in getting septic approved on properties that quite frankly look worse than this.

Mr. Detert asked, how do you address increased traffic?

Mr. Brandon stated, increased traffic…as it is now I think probably a number of children are coming across this road (inaudible). He stated that her existing facility is virtually directly North of this on Route 6. He stated that the traffic that her facility would generate is spread out over the day because of the varying ages of children and the numbers of children that she deals with at any given time. He stated that I don't think it would have a significant impact. He stated that it's not like we're going to have 150 or 200 cars coming in there all at once or in a very short period of time. He stated that I think she said that at any given time her parking area might have 20 to 25 cars in it.

Mr. Kaminski stated that she stated a moment ago that it's all throughout the day. He stated that these are elementary school kids. He stated that they're all in school during the day, so that means that they have to be there between 3 and 7 o'clock, so that's the time that we all come home from work, plus we are going to be trying to get into our own houses down there and we are going to have to fight traffic from parents coming and dropping off these kids and so forth. He stated, pre-school kids yes, I can see them there during the day, but not…most of these kids are school-age and they are going to be there after school, 'cause, like I said, I'm a high school teacher and I come home about 4:00 and I know what the traffic situation is there during the day.

Ruth Drake, 680 N. 700 W., stated that I would like to ask about the lighting of the facility. She asked, will it be lit all through the night, as I would assume it would for security purposes and to keep people from wandering around in there. She stated, if so, we are very accustomed to keeping the windows open and everything all night because we are a very secure neighborhood and I would find that to be invasive.

Mr. McBrayer, 660 N. 700 W., stated that he said he would not increase the water flow off the property. He stated, I believe he said he was going to build a 30 by 70-foot building.

Mr. Brandon stated, 80 by 140.

Mr. McBrayer stated, and a parking lot. He stated that that's going to increase water unless they put a retention pond of some kind in.

Mr. Detert stated that's what he was inferring here.

Mr. McBrayer stated that he didn't mention, so that's why I asked.

Mr. Detert stated, yes, he did.

Mr. McBrayer stated the water problem is going to be a big problem.

Ms. Whipps stated that currently our plan has the side packs on the building that are motion sensitive, so once our building is closed down, unless there is somebody really near the property then they won't go on.

Mr. Brandon stated that we have two options for security lighting on a building. He stated that we can have photosensitive so that they will go on when it gets dark out and go out when it gets light out. He stated that the other option is to do it on a timer and we actually can use a combination of the two. He stated that we probably, in this particular case if they are concerned regarding lighting, during the entire night hours we would put a timer on it so that once the building was vacated there would be very few openings in the building anyway for security purposes, we would have the exterior lighting on a timer so that it would go off, it would not be on all night.

Ms. Whipps stated that that was one of the things that was brought up in our earlier plans with Portage, and Kevin had made some suggestions that the lighting would be projected over the parking area and not beyond.

The public hearing was then closed.

Mr. Hudson stated that I don't doubt that the petitioner's engineer or architect can provide the drainage calculations that would show that they could detain the water or retain the water. He stated that I'm a little concerned, that, I think every person…I don't think there was one…and there was 11 people that spoke, every one of them had drainage concerns. He stated that I think those can be overcome. He stated that we don't know. He stated that we don't have a topo in front of us, so I don't know what water actually comes on. He stated that I have to go by what these people say. He stated, the septic issue, I'm not so convinced of because of other developments or other parcels that we've had come before this Board in this area to the North and all the comments talk about the…I believe everyone mentioned septic. He stated, I guess more important to me…in fact, those can probably be overcome, I think the issue of traffic and the fact that at least this area immediately around this..I realize there are some commercial ventures to the South, but this area is residential and that is, I guess, where I have to say that this may not fit.

Mr. Brickner stated, yes, I was there at 4:00 this afternoon, I went to the property, and I was headed West on 700 N. and for me to turn on 700 W. was a long wait. He stated that there were probably a dozen cars behind me by the time I got to turn on 700 W. He stated that the traffic on that road is really heavy and I would be concerned about adding 30 to 40 children with their parents picking them up or dropping off would be a big concern to me. He stated, also, and Rich mentioned the septic, 30 to 40 children on a septic system in an area that I saw is pretty wet would be a concern also. He stated that I really don't think that there would be a septic system that could handle that type of a load in that area because of all the water that I see in the corner there. He stated that I actually thought that this might fit until I got out there and saw the situation. He stated that both 700 N. and 700 W. are really narrow. He stated that there are no turn lanes on 700 W. off of 700 N., or vice versa, and the shoulders drop off steeply and there aren't sidewalks. He stated that there is no way to get around there other than automobiles. He stated that there is difficulty walking in and out of this facility, so, for those reasons….those are the things that concern me right now.

Mr. Burns asked, where are you located now? He asked, on Route 6?

Ms. Whipps stated on Route 6, Midwest Blacktop, I'm tucked back in there.

Mr. Burns asked, if that zoned commercial?

Ms. Whipps stated that is zoned commercial, but the building that I'm in is grandfathered in there, so he's willing to sell me some property, but I can't put the same building in, so I'm kinda of stuck.

Mr. Burns stated, I don't have problems with this; it's just the wrong location. He stated, I feel it's spot zoning. He stated that it's all residential and I cannot support it.

Mr. Detert stated, I feel somewhat the same way. He stated that this is spot zoning and it would be unfair to put the business in there.

Mr. Brickner moved to deny Case 04-PUV-2, finding that the grant will be injurious to the public health, safety, morals and general welfare of the community; the use and value of the area adjacent to the property included in the variance will be affected in a substantially adverse manner; that need for the variance does not arise from a condition peculiar to the property; 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. Mr. Burns seconded the motion, which carried on the following ballot vote:

Brickner - Yes Burns - Yes Hudson - Yes
Detert - Yes

At this time, Mr. Siminski stated that the last Plan Commission meeting they sent a memo basically saying that the Commission voted to place a moratorium on the residential mobile home park located on the North side of SR 130 by Lake County Line Road. He stated that the Plan Commission also recommended that the BZA request Ms. Schaeffer to file an injunction on the development for non-compliance to commitments made to the Commissioners for rezone approval and to the BZA for Special Exception approval. He stated that the BZA approved the Special Exception with two conditions and they are the tree line to buffer development from existing residential and INDOT access approval. He stated that to date a tree line is not present and the developer is not in compliance with the INDOT cut permit. He stated that the commitments made to the Commissioners have not been fulfilled. He stated that most notable of these was the agreement that no unit shall be rented; all were to be owner-occupied. He stated that the memo states that while inspecting the parcel, Fred and I noted a sign that stated "for rent" with the petitioner's business phone number. He stated that the BZA approved the Special Exception request on August 16, 2000. He stated that this was the Martinez case and there has been a lot of discussion; we've been looking at this. He stated that there is a gentleman, I believe, to the West of this parcel that had called the office I believe it was last fall that Mr. Martinez had cut down a lot of the buffer trees, supposedly for some drainage improvements or whatever, however, nothing was ever put really back into place. He stated that Bob and I also found a piece of conduit pipe that's sticking out right by the front row. He stated that I believe there are supposed to be two fire hydrants…there are only three units right now in the whole park. He stated that there is only one fire hydrant there right now. He stated that the place is weedy and there is a lot of sand built up and this and that and mainly this was brought up last week at the Plan Commission and it needed to come to the BZA.

Mr. Burns moved to request Ms. Schaeffer to file an injunction for non-compliance to commitments. Mr. Brickner seconded the motion, which carried on a 4-0 roll call vote.

At this time, Ms. Schaeffer stated that she stepped out to talk to Todd Leeth. She stated that we have a trail scheduled on the Sweeney and Herren cases. She stated that Herren has substantially cleaned up what was involved, so we have an agreed order saying that he is permanently enjoined from violating the ordinance and if, in fact, he does in the future, then we can cite him for contempt of court and I just talked to Mr. Leeth. She stated that Mr. Sweeney is still in violation and Mr. Leeth talked to him and said you gotta clean this up and he keep saying that I'm not ready at my new property and all this stuff, so I said, look, why go to a trial on it? She stated, why don't you just go to an agreed order like I did with the Herron case where he is enjoined from further violations, because he is in violation, and it will say he's in violation and he's enjoined from further violation and then if you go out there and inspect, you can cite him for contempt. She stated, all I need then is a report from Mr. Siminski staying he's after the court order is approved that he's been violating it and then he would be cited for contempt of court.

There being no further business, the meeting was adjourned at 8:15 p.m.

PORTER COUNTY
BOARD OF ZONING APPEALS

S/ Robert Detert, Chairman


Attest: S/ Fred Siminski, Assistant Planner/Zoning Inspector