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HomeMy WebLinkAboutBZA JANUARY 29,2019 MINUTES OF THE JEFFERSONVILLE BOARD OF ZONING APPEALS January 29, 2019 Call to Order Chairperson, Mike McCutcheon called the meeting of the Jeffersonville Board of Zoning Appeals to order at 7:00 pm in Council Chambers, City Hall, 500 Quartermaster Court,Jeffersonville, Indiana. Roll Call The roll call was requested by Mr. McCutcheon, those members present were: Christopher Fox, Mike McCutcheon, David Stinson (arrived at 7:08), Rodger Clarke and Duard Avery. Members absent: none. Also present - Nathan Pruitt, Planning & Zoning Director, Les Merkley, Planning & Zoning Attorney, Ashley Woolsey, Planning&Zoning Coordinator and Peggy Hardaway,Secretary. Approval of Minutes Mr. Clarke made the motion to approve the November 27, 2018 Minutes (no December meeting), seconded by Mr. McCutcheon and motion passes 4-0. Approval of Findings of Fact None Oath Les Merkley, City Attorney for the City of Jeffersonville administered the oath to all those intending to provide testimony before the Board of Zoning Appeals. Mr. Pruitt-At the applicants request BZA-19-04 will follow BZA-19-05 on the agenda. Secretary's note: all plat maps, photos, etc. presented before the board of zoning appeals on this date can be found in the office of planning and development. Old Business None New Business BZA-19-01 Tom Popp on behalf of David and Sara Stemler filed an application requesting a variance from the development standards for property located at 17 Arctic Springs.The applicant is combining 3 parcels (17, 18 and 19) and building a 9,000 square foot residential structure. The variance requests are to encroach into the required side setbacks and exceed maximum lot area coverage allowed.The property is zoned R1, single family residential. Representation: Thomas Popp,TEG Architects, 903 Spring Street,Jeffersonville • Mr. Wayne Estopinal's last design • West side setback 11.6' • East side setback 16' • Lot area coverage 35.3% Public comment: support—none; against—none Board comments: none Jeffersonville Board of Zoning Appeals Meeting—January 29, 2019 Page 1 of 8 The Board of Zoning Appeals in the City of Jeffersonville having heard the application for variance described above and all opposition from parties claim to be adversely affected there by does now enter the findings: 1. The approval will not be injurious to the public health, safety, morals, and general welfare of the community. 2. The use and value of the area adjacent to the property included in the variance will not be affected in a substantially adverse manner. 3. The strict application of the terms of the Ordinance will result in a Practical Difficulty. This situation shall not be self-imposed, nor be based on a perceived reduction of or restriction of economic gain. Based on the finding described above the Board approves this application. Mr. Fox arrived—7:08 pm BZA-19-02 Signarama Dixie on behalf of Walgreens filed an application requesting a variance from the development standards for property located at 2811 Holmans Lane.The existing pharmacy is planning to update their signs. Currently,the monument sign is legal non-conforming. Altering this sign has triggered the need to come into conformance with the Zoning Ordinance.The applicant would like to continue to use the existing sign base and commercial area size, which exceeds height and size limit allowed per the sign regulations in the current Zoning Ordinance. The property is zoned C2 medium to large scale general commercial. Representation: Cynthia Miles Brown with Signarama Dixie 4436 Dixie Highway, Louisville • Update brand standards (replace face)to 90.28 square foot per side and 14.412 feet in height Public Comments: against—none; support—none. Board Comments: Mr. Clark—the size of the sign will not change size; Ms. Brown—no. Mr. Pruitt—the LED portion, is that staying as is? Ms. Brown—yes. Mr. Pruitt—this is a sign that has an exception to the rule of changing one message per hour. This is one of two or three that received a variance way back when. Not sure if this falls outside this request for LED. Mr. Fox the face has two messages also. The Board of Zoning Appeals in the City of Jeffersonville having heard the application for variance described above and all opposition from parties claim to be adversely affected there by does now enter the findings: 1. The variance of the development standards will not be injurious to the public health, safety, morals, and general welfare of the community. 2. The use and value of the area adjacent to the property included in the variance will not be affected in a substantially adverse manner. 3. The strict application of the terms of the Ordinance will result in a Practical Difficulty. This situation shall not be self-imposed, nor be based on a perceived reduction of or restriction of economic gain. Based on the finding described above the Board approves this application. BZA-19-03 Greater Clark County Schools filed an application requesting variances from the development standards for property located at 601 and 605 East Court Avenue. The proposed development is an elementary school. The variance requests are regarding fences, entrances/drive width, lighting, parking, and maximum lot area coverage. The subject property IS-institutional. Representation: Greg Rasmussen with Civil Environmental Consultants, 530 East Ohio Street, Suite G, Indianapolis with the school and Core Construction • The new elementary building will bridge between the old Jeff Gym and the Fieldhouse. • Fence and wall height on Franklin Square 6 foot (playground) Jeffersonville Board of Zoning Appeals Meeting—January 29, 2019 Page 2 of 8 • Entrance drives-two along Meigs Avenue: 120'from 7th Street and 30'from Franklin Square • Separation of entrance drives—30' • New entrance width +25' • Lighting—not compliant due to safety for drop off and pick up • Maximum lot coverage 76% (Franklin Building will be torn down and replaced with hard surface play area) • Parking—84 provided (includes space on Court Avenue and Franklin Square parking) Public Comments: support—none; against—none Board Comments: none The Board of Zoning Appeals in the City of Jeffersonville having heard the application for variance described above and all opposition from parties claim to be adversely affected there by does now enter the findings: 1. The variance of the development standards will not be injurious to the public health, safety, morals, and general welfare of the community. 2. The use and value of the area adjacent to the property included in the variance will not be affected in a substantially adverse manner. 3. The strict application of the terms of the Ordinance will result in a Practical Difficulty. This situation shall not be self-imposed, nor be based on a perceived reduction of or restriction of economic gain. Based on the finding described above the Board approves this application. Mr. Pruitt asked for a brief timeline of the new construction. Core Construction— • Currently in permitting process with the State and City of Jeffersonville • Franklin Building be demolished with a week • Formal bidding process in next three week • March 1 moving dirt to build new school • 13-14 month build schedule • Turn building over to GCCS next spring BZA-19-05 John Kraft filed an administrative appeal under the terms of the Jeffersonville Zoning Ordinance of the determination of the City of Jeffersonville's Building Commissioner and or Plan Commission's Director involving the real estate located at 52 Artic Springs. The property is zoned R1 low density residential. John Kraft with Young, Lind, Endres and Kraft 126 West Spring St New Albany appearing on behalf of Steve West • Mr. West owns a lot which is contiguous to the subject matter(lot 51) • Lot 52 is a legal non-conforming lot and the structure is a legal non-conforming building— ordinance states under 10.3 C legal non-conforming building provided that it remains the same or fits described tolerances. Mr. Moore has increase in the size of the structure that has been built on lot 52. Mr. Moore purchased the property in May 16, 2018 for$100,000. Copy of deed presented and assessor's card which includes square footage at the time the property was purchased • Mr. Kraft presented a booklet which included the following documents: - September 20th wrote to City with regards to structure being built - No response from Building Commissioner or Planning Commission; response from City Legal Counsel dated October 2, stating more definite statement needed Jeffersonville Board of Zoning Appeals Meeting—January 29, 2019 Page 3 of 8 - October 17—West legal counsel response included not only what the issue was but sited specifically to the provisions of the zoning ordinance that were not being met - November 19—Moore legal counsel responded that a variance was not required - West legal counsel filed a petition December 19 with attached exhibits Mr. Kraft—the terms of your zoning ordinance of Article 10.3 defines that a legal non-conforming structure may continue provided it remains the same or fits within the below described tolerances. Any legal structure non-confirming building or structure shall not be enlarged or alter in any manner that increases its non-conformity, but any building or structure or portion there of maybe alter to decrease its non-conforming. • Structures square footage -total 1,370 at purchase; lot .0097 acre—expansion issue is over lot coverage; request for variance should have been filed. • Department of Natural Resources(DNR) application—addition to building that improvement must be 2 feet above the base flood elevation. Base flood elevation on project prepared by Mr. Moore's engineers indicate the first floor elevation of the house 451.25';the base flood elevation is 450', new improvement would have to be 452' in order to comply. • Price—remodeling cost did not exceed 50%of the value of existing home. This is important because of the terms of your ordinance; if the remodeling cost do not exceed 50%of the value of the existing home then you can stay at the level of remodeling of 451.25'. But in this instance it is showing a house at$160,000 that was purchased for$100,000 and breaks down to show that remodeling did not exceed $65,000. Certainly from the stand point if you base it on the purchase price which is of record in the County Assessor office, and the Auditors disclosure the sale price was$100,000 in May as a result of that the$65,000 exceeds 50%of that value. Result then tends that new improvement would have to be at the 2 foot above the base floor elevation and again there is an increase in the actual size. • Request for application dealt with an approval for construction in the flood way, the application filed by Jacobi Toombs and Lantz in which the permit was granted specifically states an existing house will be remodeled and an addition to the structure will be constructed. A new deck will be constructed extending riverward from the new addition. Those were the representations made in order to obtain the approval from the DNR specifically addressing the back. • Though the photos you will see significate change in what was ultimately changed on the property. (Mr. Kraft presented before and after pictures.) • Description in 4th paragraph remodeling estimate that the appraisal estimate pre-remodel value and the 3,310 square feet in their engineering's project description. We ask that you find the decision by the Building Commissioner was incorrect. We ask that you reverse the decision of the Building Commissioner and or Mr. Pruitt whoever made that determination pertaining to that issue. There should have been a variance and a public hearing so that the folks could be here to voice their concerns with what was being done on the property. Steve West—the only issue I have is that Mr. Moore knew that he should have variances and he knew the law. This project was massive overhaul of this structure. He could have brought this structure more in line with the usages of non-conforming lot. I have learned quite a bit because my lot is non-conforming which limits me to what I can do. I believe this is a good ordinance. Mr. Moore should have known or he should have as a government official. What he has done is wrong and he went about it the wrong way. I would ask the Board to reverse what he has done. Thank you Mr. Kraft—Mr. Avery spoke earlier and that tends to be that Artic Springs is an area that with Mr. Stemler's construction and Mr. Stemler's ex-wife also constructed a very nice home. It is an area that most people want to live in, but at the same time, everyone as Mr. Stemler had a representative here this evening, be Jeffersonville Board of Zoning Appeals Meeting—January 29, 2019 Page 4 of 8 required to go through the appropriate process in order to do things that there is a desire to do. This now violates the terms of your ordinance. Public comment: support—none; Against—Alan Applegate on behalf of Mike Moore. Mr. Kraft gave compelling presentation with the pictures. I do not have those pictures. We did file the variance application after Mr. Moore once the Administrative Appeal was pending. The references in the letters to the City from Mr. Kraft indicated that it was the Mayor receiving some backdoor type of treatment, because it was the Mayor's house. The city has always been of the opinion that a variance was not required. I filed the variance application in the event this Board determines that the City's interpretation was incorrect, or a Court after this Board determines that. Mr. Kraft indicated the word structure, and your ordinance and the legal non-conforming use. He put the definition of structure which is subordinate to a primary building, contributes to the comfort, convenience and occupancies of the primary building; does not alter or change the character of the premises is located on the same zoned lot as the primary building. Conforms to setback, height, bulk, lot coverage and other requirements and may not be constructed prior to the primary building. It is not designed for human occupancy as a dwelling or commercial use. Presented the definition of what cannot happen to legal non-conforming building. The building or structure shall not be enlarged or altered in a manner that increases it non-conforming.That is what this is all about: the interpretation of this legal non-conforming residence. It is our position that this is a deck; an unenclosed patio is therefore an accessory structure and doesn't increase the non-conformity of the building that preceded that structure. Rules of Statutory Structure Construction—they are to be applied in construing your ordinance,the primary goal is to in effect get the attention of the ordinance and it is accomplished by examining the statutory language in this case is the ordinance. Words in a particular section cannot be construed in isolation, but must be viewed in the entire act. If they are used in one place in an act they will be construed as used in the same since or other places in the act. When I refer to the word act, I mean your ordinance; unless the clear context of the statute requires a different meaning. Your ordinance using those rules—there is the built upon only if the proposed use is permitted and the development standards of the applicable zoning are met—for a legal non-conforming lot. Definition of porch—as defined as a roofed over structure projecting out from the wall or walls of a main structure and commonly open to the weather in part. That is what you have been seeing pictures of. That's what Mr. Moore caused to be constructed. Under your zoning ordinance porches and decks are not considered to be part of the house to which they are attached. Particularly in the definition of accessory building/structure, none of those did it have to be separate from a residence. Presented information that porches and deck are accessory structures. Building area—the horizontal area of the building on the lot measured from the outside exterior walls, excluding open areas or terraces, unenclosed porches or decks. Floor area—the sum of all horizontal surfaces of all floors and roof portions of the building enclosed by and surrounding exteriors roofs;the floor area of a building shall exclude exterior open balconies and open porches. Main floor area—finished floor area located on the first floor or nearest to ground floor of the dwelling unit the main floor area of a primary structure does not include a garage, carport, deck, unfinished storage, patio or open porch. As, such all of those words in the rules of statutory construction seem to indicate that this addition, and this structure is an accessory structure. The construction of the accessory structure of a porch does not exceed, it is more than 3 feet from the side setback line. We have to follow your accessory structure standards in interpreting this porch or deck. Going back to the initial thing it does not increase the non-conformity of the building to which it was attached. Rather this addition can be made so long as it complies with your zoning ordinance. This structure does comply with the development standard set forth in section 7.5 of your zoning code. Another item of clarity- is accessory structure standards—this is the section of your ordinance dealing with accessory structures; the following are permitted but must abide by all applicable standards—one of the words is deck. Again, looking at your ordinance in total and all of the words used in the ordinance it would appear that this is an accessory structure. Section 7.5 indicates that enclosed Jeffersonville Board of Zoning Appeals Meeting—January 29, 2019 Page 5 of 8 structures such as detached garages, barns, pool houses, are counted toward total accessory building area, but unenclosed structures such as gazebos, picnic area, and etcetera are not. Doesn't say deck, porch, etcetera but it does say that this accessory will comply with all development standards and relate to the primary structure and will not encroach on any platted easement. The characterization of this, because he is the Mayor, we communicated with the Planning Office and Building Commission Office and asked how many variances have been filed for porches and decks in Artic Springs. The paperwork is in your materials—many variances have been filed, page and a half full but nothing for porch or decks. There have been several permits issued by the Building Department for the building construction for decks in Artic Springs, the addresses for those are not on this list, meaning no variances were ever filed for those porches or deck. The City is not singling out Mr. Moore's piece of property for favoritism. There was mention of walls a lot, it is a wall, but it is unenclosed;you cannot sleep out there tonight. It is a roofed portion of the building and therefore a porch or a deck. If this wall had been made of lattice or slatted beams would it would have made a difference? Porch and deck don't say it can only have particular side like materials. I think they are all a porch because that is what your ordinance says that it is. I would ask that you consider the City's interruption of it as the Planning Director and Plan Commission and with that I will stop my presentation and be available for questions. Board questions: Mr. Stinson—the east and west side that jet out there is nothing going across the river view? Mr.Applegate—you have a roof overhead and a wall to the right and left of you when you walk out to the open porch. Mr. Stinson—there is no heat/air/plumbing outside? Mr.Applegate—not to my knowledge. Mr. McCutcheon—is the floor consistent in that area with the deck that sticks out the front? Mr. Applegate—yes. Deck boards. Public comments: closed Mr. Kraft—by virtue of these walls this property does not meet the side setback requirements under the terms of your zoning ordinance. If you look at the photos you will see the proximity of this expanded wall on both side and it proximity to the property line and how close this is. Mr. McCutcheon—what is Mr. West really seeking; tear it down? Mr. Kraft—ideally would be to follow the ordinance. We addressed this in September, in time to attempt to deal with the construction as it was progressing. We are here now and it is close to the end of January and the construction for the most part is complete, had it been address appropriately we believe by virtue of the determination that obtain a variance before you do any of that it would have stopped what has been done. From the stand point of some of those questions that were raised if it was this, if it was that, does not matter what it is, it is a matter that it was not dealt with appropriately and the reversal of the initial determination pertaining to that structure was built. Mr. McCutcheon—what do you feel as an owner of lot 51, 52, 53, what do you feel that those people of those lots and their view—does their view include an east and an west or should it include just as in this case a south view of the river? Mr. Kraft—I will agree that there is nothing specifically that addresses a sight easement on any of those lots. But at the same time when you deal with that and you deal with the fact that this does have an adverse effect upon the value of my client's property by virtue of what has been added. He no longer has that view; he has had it since 1984. Mr. Stinson—on the reverse of that-what is the situation with property value verses that adverse view? The property values with this improvement with this being next door what is going to happen to Mr. West property? Mr. Kraft—I think he will tell you that it takes his property value down. Mr. McCutcheon—how do we proceed forward? Mr. Merkley—you should have in your packet 63 pages is a record of proceeding as it relates to this appeal. On page 21 you will find the decision that was rendered by the City, by my office after consultation with the Planning Department and the Building Commissioner's office and stated what that opinion was; that a variance was not needed for the reason stated. Procedurally on the administrative appeal, our zoning is not statute, but sticking with our ordinance and under 12-4 section F—administrative appeal. The applicant shall submit a written statement, stating the grounds for the appeal and supporting material within 30 days of the Jeffersonville Board of Zoning Appeals Meeting—January 29, 2019 Page 6 of 8 decision, Mr. Kraft has done that on behalf of his client. Secondly, the body of which the appeal is taken, which is the Zoning and Building Commissioner office shall transmit to the Board of the Zoning Appeals all documents, plans, and papers constituting the record of the action, again we have done that. We have complied with paragraph C—public notice in the newspaper; we did notice this hearing prior to pursuit to that statute and we did schedule this at the next regular scheduled meeting after the appeal was filed. Today you are to consider the written appeal that was filed originally that is in the record of the proceeding and the material that is been presented to you today by Mr. Kraft and Mr. Applegate and the testimony that has been presented here today as well. It is the City's position that a variance was not necessary that this has not increased the legal non- conformity of that residence. You have three options: BZA may grant, deny or table the appeal. Grant- Reverse the decision that has been rendered by the City, that a variance is necessary. Deny-Affirm the decision that a variance is not necessary. Within 5 days of the decision a written order is to be prepared by Statute. Mr. McCutcheon—what is your address to the pictures we see that this is an open structure on the south end with deck like flooring? Mr. Kraft—pay attention to the definition of a porch, because it is open to the elements, it doesn't say three wall; it says roof and open to the elements. The result of that tends to be you have it roofed and you have three walls. The other part, photo 5 from the river looking up; we are not dealing with a porch. Mr. McCutcheon—Mr.Applegate did not deny walls. In my opinion, you have not proven this is not a porch. Mr. Kraft—it is an addition. The idea comes from the fact that this is an addition to what was there. Mr. Stinson—what is the definition of an addition? Mr. Kraft—an addition is when you enlarge it. Mr. Stinson—so can it also be considered a deck? Could a deck be considered an addition? Mr. Kraft—it can. You have taken a deck, enclosed it on three sides, roofed it, a violation as it relates to a side setback because you have walls that are too close to the neighbors under the terms of the ordinance and you have the same situation that you have an existing deck that was a concrete patio that was cantilevered out further than what it was. Mr. Stinson—do we consider the structure to be habitable? Mr. Kraft—they could. Mr. Stinson—can someone occupy and live in that space? Mr. Kraft—yes. Mr. Stinson - is that against a zoning ordinance? Mr. Kraft—if you expand the structure—yes. If you look at his documents prepared by his engineers, it said remodeling and putting an addition on. That increases the square footage from a legal non-conforming use. Mr. Stinson—I look at this as a grey area as far as an addition is concerned. Mr. McCutcheon—the interpretations are different from both sides and I think when we talk about additions and things when they don't get specific it leaves it up to interpretation. Mr. Merkley—for clarification, there is no HVAC and the deck area is synthetic trek. This was brought up months ago regarding side setbacks, we looked at what was planned to be constructed. There were going to be problems with side setbacks and we had construction bring it in. We believe the side setback is where the original structure was. We are looking at an area that at one time was a fish camp and has evolved over time and that the historical records would show a lot of people have made changes to their buildings and houses there. The petitioner even added a second floor to his building 20-30 years ago that resulted in blocking the view of the river; that pre-dated the ordinance we are on, but records would show that this is not unusual. Mr. McCutcheon—the setback are not on the property line? Mr. Merkley—he has not gone beyond what the original structure was. Mr.Avery—this is about the need or lack of obtaining a development standard variance; and what the City determined was because this was not a heated/cooled residential area that it did not need a variance because it was a deck or porch. Is a variance standard alteration sufficient enough that it requires it or not? Mr. Merkley—I think if you consider it a deck or a porch the City has not historically required variances for those specifically for Artic Springs. Mr.Avery-and it doesn't encroach itself into a street or setback. It is simple an outbuilding attached, but it is not actually required because it is a deck or porch; it is not heated or cooled. Would a development variance remedy that if it were necessary even if they lost that? Is it a moot point? Mr. Merkley—that will be the next argument that will be presented that the variance should not be granted. Jeffersonville Board of Zoning Appeals Meeting—January 29, 2019 Page 7 of 8 Mr. Merkley—before getting to the variance issue it made since to address and adjudicate the administrative appeal before we do the variance because the City still contents that a variance is not needed. We could set a president here, it is the City's position that if this administrative appeal is granted and the decision is reversed, we are going to have a requirement for decks and porches even when they don't encroach require a variance. I keep stressing the statute and our ordinance contradicts, but under the statute it gives the Board the opportunity to modify the decision that was rendered by the City, so that is another option,the discussion with regards to closing in the south end that the Board could say this is not to be done. Mr.Applegate—I think that you are interpreting your ordinance, questioning whether this is a porch and more importantly all the other references in your materials—unenclosed porch or deck; open balcony, open porch, unfinished—lots of terms that are not defined, but if you look at the whole as you should in terms of reviewing your ordinance—you cannot sleep out there; that porch is not included as part of the living or the main floor area and therefore did not increase the non-conforming. Mr. Clark—if we affirm this, or keep as the City says, do we need to make a motion that he cannot enclose it without getting a variance? Mr. Merkley—yes, my interpretation of the statute is that you can modify the decision to be made. Mr. Stinson—and at that point a new variance would have to be filed? Mr. Merkley—yes, because the City's position at that time would be that it is no longer a porch or deck. Mr. McCutcheon—Mr. West is there anything that has gone on to this point that is going to keep you from doing anything with the situation has occurred and is in place, what hardship will this create in the future? Mr. Kraft—he believes this is devaluing his property. Mr. Fox made a motion to affirm the City of Jeffersonville's interpretation that a variance was not required for this property, seconded by Mr. Clark and motion passes 4-1 (Stinson). BZA-10-04 Mr.Applegate asked for his petition to be tabled for a period of 60 days. Mr. Clark made a motion to table for 60 days, seconded Mr. Fox and motion passes 5-0. Reports from Director and Staff Mr. Pruitt wanted to thank Mr. Avery for volunteering his time to set on this Boards. Board comments: Mr. Avery nominated Mr. McCutcheon to Chair of the Board and passes unanimously. Mr. McCutcheon nominated Mr. Fox to Vice Chair of the Board and passes unanimously. Adjournment There being no further business to come before the Board, the meeting adjourned at 8:38 p.m. . . Mike McCutcheon, Chair 44("1\41' ay.( ggy Hardaway, Secret ry J Jeffersonville Board of Zoning Appeals Meeting—January 29, 2019 Page 8 of 8