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HomeMy WebLinkAboutMinutes BZA 11-24-1440 �,� 1,,ity Ca tc-N)f rmel' / MINiTI'ES Carmel Board of Zoning Appeals Regular Meeting November 24, 2014 6:00 p.m. Council Chambers, Carmel City. Hall Present: James Hawkins, President Leo Dierckman Dennis Lockwood Alan Potasnik Madeleine Torres (alternate) Connie Tingley Recording ,Secretary Maggie Credi'ford, Recording Secretary Staff Members in attendance: Angie Conn, Planning Administrator .Legal Counsel: John Molitor Preyious Minutes: On, a motion made by Leo Dierckman, seconded by Dennis Lockwood: The Minutes of the meeting dated October 28, 2014, were approved as circulated.. MOTION CARRIED UNANIMOUSLY Communication, Bills and Expenditures: Angie Conn 2015 BZA Calendar, Timeline Filing & Notice deadlines approval: On a motion made by Alan Potasnik, seconded by James Hawkins: The 2015 BZA Calendar as presented by staff was approved MOTION CARRIED UNANIMOUSLY Legal Council Report: John Molitor: ® Recommended moving this report to the end of the meeting to discuss a December special Hearing Officer meeting. ® McDonald's at the Bridges -has been :moved from.. the Hearing Officer Meeting to the first item on the Docket for the Regular Meeting this` evening pursuant to our Rules of Procedure and State Law. On a motion made by James Hawkins and seconded by Madeleine Torres To Move the Legal Council Report to the end of the meeting. MOTION CARRIED UNANIMOUSLY WWW.CARMEL.1N.G0V Page 1 of 14 (317) 571 -2417 Carmel Board of Zoning Appeals September 22, 2014 Meeting Agenda Public Hearing: 1 -2. This item was moved from the BZA Hearing Officer meeting (V) McDonald's at the Bridges — Signage The applicant seeks the following development standards variance approvals: Docket No. 14100023 V Z- 550 -11, Section 9:51— Number of Menu signs (2 proposed,1 allowed) Docket No. 14100024 V Z- 550 -11, Section 9.5 I — Menu Sign Square footage (38.81 sq. ft. proposed, 30 sq. ft. allowed) The site is located at the southwest corner of 116"' Street and Illinois Street, just south of the existing multi- tenant retail building. It is zoned PUD, within The Bridges PUD. Filed by Blair Carmosino of Carmosino Group, Inc. on behalf of McDonald's. Present for Petitioner: Blair Carmosino, McDonald's USA, Bill Cook, McDonald's USA • McDonald's at the Bridges is up for ADLS review at the December 2, 2014 Special Studies Committee though the Plan Commission • The Building has been changed to the Prairie Theme style building per the PUD • Requesting a Variance to allow 2 Menu Boards to accommodate a dual Drive Thru system • Sign Locations: • All signs proposed not just ones for variance approval • Entering site directional signs 3ft high no logo (4 total) • Flag Pole proposed off the patio area will be to code • South Side Pick Up/Pay Here Windows • Drive thru Sign Locations and Styles • First sign is a Presale Menu Board • Double Gateway Arch which keeps the cars to the proper height to get under awnings and directs customer to one of two lanes to order ® Customer Oder Display with Menu Boards these are the signs that the variance is being sought for, it will be modified from the picture presented, it will have the stone base added to it. Overall height is in conformance of the 6ft required. • Stone base will be made to match the facade of the building • Ordering Station provides shelter for the customer when they roll down their window • Speakers have automatic volume control ambient background noise will lessen the volume of the speaker • Pay and Pick Up signs are last and are tucked up under the awning • Building.itself hast 3 signs total • Logo Arch on North Facade • Word mark sign on the South side "McDonald's" • Welcome signs at each entry "Welcome ": • Variance as you can see by your Staff Report is supported by Staff • Pictures are presented of an existing on that was recently approved at 750 E Carmel Drive • We took a lot of care to screen the Drive thru signage view from public streets (landscaping) • PUD took base zoning for Drive thru signage and carried it over • Specific language in the Code allows for this type of signage • PUD states to enrich the composition but in.keeping with the quality of the design, the building design shall allow for the individual character of various businesses expressed through elements such as signage and awnings • We believe these elements are in compliance with the intent of the PUD as written Page 2 of 14 Carmel Board of Zoning Appeals September 22, 2014 Meeting Agenda Public Hearing Closed. Department Report: Angie Conn ® Petitioner addressed the request very thoroughly ® PUD allows for a Drive thru restaurant, but due to the prototype of two Drive thru lanes requires the need for the variances Department is generally in favor of the variances with no conditions attached Discussion: • Whatever happened at other McDonald's has nothing to do with the hearing tonight ® The Canopy you have over the drive, what is the bar for so it doesn't hit the canopy? Canopies over the Drive thru appear to be taller than what is being blocked down for. • Arch is advertising • Double Gateway arch is no different than the yellow bar in a parking garage • It is to make customer aware thaulieir vehicle is too large • This is a warning apparatus • Which Canopy would they.hit? o The Order Here Sign • They won't hit an element,on your building they will hit your advertising; it's an arch and its yellow. o It is a canopy, there is a light up in there and shields customer from the weather • That would have to be a straight..down pour; it doesn't account for blowing • It provides shelter to the customer, on a windy day you roll down your window you will probably get wet • It is a warning for the customer that if they hit the arch they need to back out or they will take out the Ordering Canopy • It is for customer direction, not advertising. • Yes there is yellow branding of the corporate colors but there is no logo arch there is no wording. • Your concept behind the two drive thru lanes and what justifies that is the language in the PUD o The two dive thru lanes:are'a request by McDonald's to run the most efficient store they can • Is it to encourage drive thru and not sit down? o It is part of their business model • Was there a letter from a, remonstrator on this? o It was a letter sent to the Plan Commission remonstrance and you were provided copies of it • This project was;supposed tote a hire end product and not one that encouraged drive thru. Two drive thru lanes seems like an over embellishment at this location. No issue with one drive thru but two. What were the comments from the letter? o Concerns about traffic patterns, drive thru, speaker noise, environmental sustainability, high end establishments, number and size of menu board signs • Can't believe the public doesn't realize where they are driving into, how many in percent in buildings today utilize the multi -lane drive thru? o Going forward it is going to 90% not sure about how many have it right now. They are transitioning old and new stores to this system. • So if you could not do two drive thru lanes you would not build in a certain location. o McDonald's would seriously reconsider their position at that location. o It is an acceptable use in the development o Signage is not unique o 70% of business is through the drive thru. Page 3 of 14 Carmel Board of Zoning Appeals September 22, 2014 Meeting Agenda • Back to the graphics, Double Welcome Point Gateway with the guy underneath it. • If a vehicle drive into it and they hit the bar, what happens then? o Right when you drive in you hit that, should it be hit, they need to back out and go around. If they continue in they are destine to hit the Order Here Canopy. • The page with the Order here and the man, is that the same height as the Drive thru sign. o It is the same height as the Double Gateway Arch. It is dangling and will not damage your car. • Will the customer know they hit the bar? o No sounds or buzzers, but hopefully they will hear it. • Sole purpose of the arch is to shelter customers from elements o Yes, it also provides a light down over the customer. • There is no advertising on this structure at all other than the color. Is that correct? o No advertising or text on any that are currently installed and in use. • What would stop you from utilizing, instead of the yellow color on these and instead utilize one of the colors on the building that is the prairie theme. o Preference is to leave those as they are because they are corporate colors, but we can look into that. And will site back to the code allowing for this. • Doing things that might be more tasteful and neighborly to this building should be considered. • You are here tonight to approve two drive thru lanes we could eliminate 50% of signage by not approving those. We really want people to have one drive thru, and only in a location that it is necessary to have two drive thru lanes, not just have two drive thru lanes in all locations. We are here to decide if this location calls for two. When there is a freeway or more heavily traveled location two may needed, but in a residential area like this one, just not sure it is called for. If you can't make a living with one drive thru it is really not our concern. At this location we need to be more careful. • Clarification of a prior comment is needed on the color. We are still in the DP ADLS process, right now we are talking about number not color. • Point is well taken that what happened at 750 has no bearing on this issue, our intent was to show you an application already in place for the two drive thru system. On a Motion made by Leo Dierckman and seconded by Madeleine Torres: Docket No. 14100023 V Z- 550 -11, Section 9.5 I — Number of Menu signs (2 proposed, 1 allowed) be approved to allow for 2 Menu Board Signs instead of 1 that is currently allowed. MOTION CARRIED 4 -1 Leo Dierckman Opposed On a Motion made by Leo Dierckman and seconded by Madeleine Torres: Docket No. 14100024 V Z- 550 -11, Section 9.5 I — Menu Sign Square footage (38.81 sq. ft. proposed, 30 sq. ft. allowed) be approved to allow 38.81 s£ Instead of the 30 s£ Allowed. MOTION CARRIED 3 -2 Leo Dierckman and Dennis Lockwood Opposed. 3. (V) Children's Learning Adventure, 116th St Centre PUD The applicant seeks the following variance for new building and parking lot: Docket No. 14100004 V PUD Z- 484 -05, Section 2.10.A: Parking lots to be to the rear of bldgs, parking on the side requested. The site is located at the NE corner of 116`h Street and College Ave and is zoned 116th Street Centre PUD (Ordinance Z- 484 -05). Filed by Michael Lopez of CEI Engineering on behalf of the Children's Learning Adventure. Present for Petitioner: Steve Hardin: Baker Daniels Law offices, Carl Frontera CLA, Michael Lopez • Site is located on 3 acres at the Northeast corner of 116"' Street and College Ave. • The project is in the DP -ADLS and we are currently working with staff. • PUD states that parking be in the rear of the building. • The best layout for the building would actually have the parking on the side 6f the building not in the rear. Page 4 of 14 Carmel Board of,Zoning Appeals September 22, 2014 Meeting Agenda • We have talked about providing additional landscaping with staff. Public Hearing Closed. Department Report: Angie Conn • The department would like to see more landscaping to screen the parking lot along 116`' Street. • They have agreed not to prohibit parking from the neighbors to the east. We would like this added as a condition if there is a vote to approve. Department recommended positive.consideration with the condition of not prohibiting parking from the neighbors. Discussion: • Parking along College? o That is part of the City Right of way • Will there be a backlog of traffic entering and exiting the building with a drop off lane? o Parents must enter from the front of the building. There will be no drop off or pick up lanes, parents must enter the building and use finger print recognition to retrieve or drop off. • Should there be a commitment°thaf there will be no utilization of a pick- up lane? o It will not be an issue; parents must enter the building to pick up. There is no other option. Motion: On a motion made by Leo Dierckman and seconded by Madeleine Torres: Docket No. 14100004 V PUD Z- 484 -05, Section 2.10.A: Parking lots to be to the rear of bldgs, parking on the side requested, be approved to move the parking from the rear ofthe buildings to the side requested. With the Commitments to.not,prohibit parking from the neighbors, and provide additional Landscaping to along the parking area as discussed with DOGS staff. MOTION CARRIED UNANIMOUSLY 4 -5. (V) Willow Woods Subdivision The applicant seeks the following variances for a new subdivision: Docket No. 14100006 V ZO CH.9.04.03.F: 35% Max Lot Coverage, 45% requested. Docket No. 14100007 V ZO CW9.04.03.A: 30 ft. Min Front Yard Setback, 18 ft requested. The site is located east of McPherson Street between 106 "' and 105`h Street and is zoned R-3/Residential within the Homeplace District Overlay. Filed by David B Klain of DB Klain Construction, LLC. Present for the Petitioner: David Klain: DB Klain Construction LLC. • Located between 106"' and 1.05`x' street just east of McPhearson Not all Lots require variances • Would like to keep residences at single story units • Empty nester style product- one story • Will comply with drainage Hamilton County and Street Department when that time comes ® Upscale product that will enhance the area • Request favorable approval from the community Public Comments Favorable: James Richards • Own two properties to the east on 105'h street • Concern is about the line from South to North, It looks Tike there will be a street put in there. • Concerned if any of this will run over onto my property James Hawkins: • We can have the petitioner come up and answer that but just want to remind you that right now we are looking for Favorable Comments. • Are there any favorable comments at this time? Page 5 of 14 Carmel Board of Zoning Appeals September 22, 2014 Meeting Agenda o There were none Public Comments Unfavorable/ Remonstrators: Mark Anderson, Indianapolis • Houses in that area are acre size lots • Concerned about putting 5 houses on 1 acre • Is the setback change going to affect 106t" street where most of the houses you see are setback 75 -150' from the road? • Does that Variance apply to 105`" and 106"' or just 105'1'9 Thomas Roush, E 106"' street • Adjacent and east of project • Concerned about set backs • My home sits back 75 -150' • Concerned about the 2 units that need the change they will be right outside my front door in front of my house • Drainage concerns Mark Anderson, Speaking again • Does not understand changing the percentages of lot coverage • Will % change increase the density • Would like to increase quality not density Petitioner Response David Kain • Mr. Richards question about the road, the entire road and Right of Way is on our property and will not be on his at all. • The road itself has 10' setback between his property and the road, and we have full intentions of landscaping the barrier between the two properties. • Setback question 106 "h or 105t' the setback we are requesting is off of our road not off of the public streets • We will comply with the setback off of 106th street set by the City. • Drainage- We will have our own internal drainage area to capture rainwater and drainage for our property. • Will also work with Hamilton County on Drainage • Density Issues, the Density does not change, lot coverage does not change density, and we are only seeking 12 units. • Lot coverage refers to the footprint of the house not the number of houses. Mr. Hawkins o There was one more question about the positioning of the houses on the east side. David Kain • We are following setbacks off of 106th street. • His house sits further back than the required setback; we will be meeting what is required. Public Hearing Closed Department Report Angie Conn • Good explanation of lot coverage, foot print, and sidewalk area • Building setbacks are requested to be reduced but will leave enough area for parking in drive • Density is being met • Still will need to go through Primary Plat Approval with Plan Commission Department Recommends Favorable Consideration Discussion o Street is dedicated street? 0 3 houses to the east set back further Page 6 of 14 Carmel' Board of Zoning Appeals September 22, 2014 Meeting Agenda o During Plan Commission process, concerned about orientation of the homes towards major streets • We will enhance the elevations of the homes along 116`" street to go along with the look of other homes along 1,06t" street o On the site plan is that a.building up on 106 "' street further up • No, there is:no: building there • East of College? Any Concern about people. cutting through neighborhood at rush hour • No, they could already take McPherson which is already there. On a Motion,made by James Hawkins and seconded by Leo Dierckman. Motion Approved 5 -0 6. (UV) Nice Laundromat,; Meridian Village Plaza The applicant seeks the following use variance for a laundromat: Docket No. 14100009 UV ZO CH 23B.03: Permitted Uses, laundromat requested The site is located at 13610 N Meridian; Street and is zoned B-3/Business within the US 31 Corridor Overlay Zone. Filed by Mary E. Solada of Bingham Greenebaum Doll, LLP on behalf of Nice Laundromat. Present for the Petitioner: Matt . Price Attorney with Bingham Greenebaum and Doll. Jeff Bart Owner of Nice Laundromat, and Greg Ewing Land'use specialist. • Meridian Village Plaza Shopping Center • West of US 31 North of 136`x' Street • 2800 sf of the smaller building Which is approx. 15,000 sf 'portion of retail center • 130,000 sf retail .space in the entire center. ® Here seeking a Use Variance from the US 31 Overlay preventing a Laundromat. ® Self Service Laundromat • Zoned B -3 • Underlying Zoning permits the use. • Overlay does not • Staff is.in support of request • Use fits in well with other uses • Provides a use not readily -available in the community • Provides a solution for people who'don't have machines in their homes, people who may have machines that are down, and people who need to clean larger items that will not fit in their machines at home. • Not a Dry Cleaning facility • We request approval and would be happy to answer questions No Public Comments Favorable Public Comments Unfavorable Organized remonstrance: David Brannon: Lives in the Hunters Creek Townhomes adjacent to the shopping center. Requests a continuance or a deferral based on.the following reasons • Received the letter mailed on 10/30/2014, to the property management company • I received this on the 4"', 20 days ago • We have not had enough time to speak with the other owners of the Townhomes to find out what their response to the petition would be. • We have talked to adjacent neighbors around the corner • Many neighbors did not know about it do to the letter being sent to the management company and not to individual homeowners. Page 7 of 14 Carmel Board of Zoning Appeals September 22, 2014 Meeting Agenda Gary Havens: • Townhomes of Hunters Creek • Condo is 275' from my backdoor to their front door. • Found out about hearing last Friday. • Would have preferred to write a letter, but did not have time to do that on such short. notice. o Moved to location 19 months ago from Indianapolis. • Came to Carmel specifically because the West Side where I lived for the past 40 years, particularly Pike Township has deteriorated. • When Lowes was built there were rules for Lowes to be one of the most beautiful Lowes in the United States • That is exactly why I wanted to move to Carmel. • There were rules and thoughtful people who decided to make a community that, is a. great place to live. • Particularly coming from Pike Township where I have seen strip malls go downhill. • I am 275' from the strip mall. • I however did not anticipate a self -serve laundry. • I have travelled extensively for work, and had to do laundry on the road. • Self -serve Laundries are always in the worst part of town and in strip malls that have gone downhill. • Meridian Overlay author thought about that same fact. • Refers to the ordinance and the specific exclusion of Laundromats in the Meridian Overlay. • There must be a reason that self - service laundry is excluded in two locations. Meridian Overlay and the Keystone Overlay. • Makes sense these are the two main corridors in and out of our community. • We have been enduring construction right outside our front door. • I don't think a self- service laundry is the way to bring back this strip mall that has been beat up by the US 31 project. • Findings of Fact mention the parking constraints. • Went over there today, there are only 47 parking spaces in that specific area. To also serve Brunchies, and a fitness center. • Most Laundromats do their business on Saturdays and Sundays. So does Brunchies who has just gone through Hell, they were part of the 31 bites because their business was so disrupted. So now, on their two biggest days, they are going'to be faced with people claiming those 46 spaces to do their laundry, because who is going to want to carry their laundry over from one of the other spots further away? • Back to the Overlay zone in the Ordinance, there are two locations where this type of business is excluded and I would like for you to maintain that. Ken Rabbers: Board of directors at the Townhomes at Hunters Creek. • This Center is a neighborhood facility, it is a residential area, businesses in there are things that cater to established neighborhoods • Self- service laundry does not continue that enhancement. • It is an excluded use and we would like to see that upheld Bob Buzby: Crime -Watch Captain at Townhomes at Hunters Creek. • 9 years with a Crime -Watch • Snow birds that live at our complex • I am presenting a letter from one of them • 31 overlay restrictions regarding trash and debris. Continuously generated, and we must call code enforcement all the time to get them to clean it up. • Shows pictures of trash in the area • 12' high retaining wall is feet from Laundromat • Agree with what board says regarding a continuance • 31 residences did not get a letter even though they are the closest to the complex. Page 8 of 14 Carmel Board of Zoning Appeals September 22, 2014 Meeting Agenda James Hawkins- Did you provide the letter you have to the staff? And was there anything in the letter you would like to highlight? That is different than what has been said? Bob Buzby • One interesting comment, but a couple of years ago from the restaurants in the area we noticed sewage water flowing out of a manhole on our property. • Carmel Utilities had to send out an emergency truck to pump the sewer line. They forced a 4' piece of grease out of the sewer line. Carmel Utilities said the 31 units would have had sewage flowing up through toilets. Petitioner Rebuttal: ® We obtained the notice list through the Hamilton County Auditor's office, which is common practice here in Carmel and throughout Hamilton -County. The notice is sent to the association in regards to which property is actually abutting our site as opposed the individual property owners. So I believe there was proper notice under the Ordinance. ® We do not have an objection to a continuance and meeting with them individually or as a group. ® It is a small location in the complex arid we believe it works like a special exception in another context. ® Gives this board the opportunity to look at the request and decide if the departure is a reasonable one, and one that otherwise has compelling reasons, to be approved. And in this case we think that there are compelling reasons, size, a use like the other uses. ® Comments about trash and debris. None of that is coming from this particular land use. ® More closely related to restaurants and this use will not contribute to that and will provide a needed service to the community. ® Overall complex is very well equipped with parking spaces. ® Over 600 spaces over all, customers coming to this use would not need to interfere with the use of Brunchies or other businesses in the location. 6 Complex is in transition and difficulties. 60% Occupied 40% unoccupied. It was struggling even before the construction. ® This is a compatible land use. ® Technically prohibited by the overlay zone, but considering size, it is not inappropriate for the complex. There is a wooden fence that serves as a buffer between the complex and the Townhomes. ® Would make a commitment to not, seek and sign variances. a Would like approval but would agree to a continuance and be able to meet with the homeowners. Public Portion of the Haring is closed. John,: Molitor, regarding the issue of notice:- ® Notice was given in accordance with our rules ® Went to association and rules do not require notice given to individuals but to the association Leo Dierckman: How can that be? Law states that individual property owners should be noticed. Does it say that the association be notified and then pass the information along? It doesn't make sense and I question that issue. John Molitor: ® We could look at our rules, but our rules are in accordance with how the properties are recorded at the county recorder's office. Leo: • They are individual Property owners. • Individuals in a certain radius need to be notified. Page 9 of 14 Carmel Board of Zoning Appeals September 22, 2014 Meeting Agenda Angie Conn: Department of Community Services • Adjacent parcel was probably a common area held by the HOA. Leo Dierckman: • Because they are so far away otherwise they would not have been noticed at all? • That makes more sense. John Molitor: • Our Rules still relate to the adjacent property owners • Must be set up that way at the County Offices • Not saying our Rules are perfect, but notice was given in accordance with the rules. Leo Dierckman: • Rules state that notice be within certain footage of the change and that probably included just the common area and that is why the association was notified. John Molitor: • Which might way as to whether you want to grant the continuance because some of the owners did not know about this until they heard about it indirectly, so I can see where it would make some sense for the continuance. Leo Dierckman: • They technically own that area as home owners. • They own the association and the common area. John Molitor: • They own an undivided interest in the common area. • Individual owners in this case would receive notice in the way of the association. Leo Dierckman: • I think we should just continue it. Department Comments: Angie Conn • There are no December BZA Meetings so this would be a continuance until January 27, 2015. James Hawkins • Is that ok with the petitioner? o We are ok with that. I didn't realize there was not a December meeting, but with the comments made my client has verbally made an offer to meet with the homeowner's association board and return to make our case in January. On a Motion made by; Leo Dierckman and seconded by Alan Potasnik to continue this item until January meeting. Motion Passes 4 -1, Madeleine Torres opposed. J. New Business — None Page 10 of 14 Carmel Board' of Zoning Appeals September 22,2014 Meeting Agenda Legal Counsel Report: John Molitor Re: Suspending the Rules to allow for a Special Hearing Officer Meeting on Docket No. 14100022V McCracken Bourdillon Estate, Lot l -Bowen Accessory Building Height. We elected not to have an executive session even though in some ways this relates to a litigation that is still pending in regards to the Bowen variance request that we denied some three years ago. I don't recall if Ms. Torres was on the board at that time or not. The City unfortunately issued a permit in error that -allowed a barn to be built and completed. On the Bowens property out on the West side, then after the barn was construction process was nearly complete the neighbors realized that it violated the Zoning ordinance which the City ultimately agreed that it did. In so rescinded the Certificate of Occupancy. That provoked a lengthy litigation which went to the Superior Court in Noblesville, which upheld the Bowens arguments that we had violated the Bowen's Constitutional rights when we revoked their Certificate of Occupancy. The Barnett's appealed that to the Indiana Court of appeals who charged the Bowen's and their Architects with,knowledge of the Zoning Ordinance., So even though the City issued the permit and the Certificate of Occupancy in error they were still charged with the. knowledge of the City Ordinances and up held our revocation of the Certificate. They remanded it back to the Superior Court in Noblesville that has not issued a final ruling but there is a telephone conference scheduled with the attorneys involved for December 15`x'. After discussing this with Mr. Hollibaugh we found out that the Bowens have decided to re -file their request for the variance which this board originally denied. They are taking-the position that circumstances have changed so they are entitled to a new hearing on the variance request. In view of the fact that at least three of our. Board members have participated in the original hearing, and have reached a conclusion about how it should be resolved I discussed this with Mr. Hollibaugh and we suggested to both sides that they file this under the Hearing Officer's agenda. Then we had a Pre -Trial conference with all the attorneys involved which took place last week. Mr. Pota "snik has volunteered to serve as; the Hearing Officer since he was not on the Board when this was originally heard. T-hat:meetitrg is scheduled for the morning of Tuesday December 16`h. The Memorandum that I have distributed to you was worked out, in conjunction with the Pre- Hearing conference will all the attorneys involved with this case, which would provide for a special rule providing that hearing to, be conducted by Mr. Potasnik on December 16`x'. First there needs to be a decision made on a question of law, whether or not. circumstances have changed and if they have not, then the variance request should be automatically, dismissed. We have provided an opportunity for the attorneys on both sides to submit briefs. in time for those to be forwarded to the Hearing Officer, at least five days in advance of that hearing. And then if Mr..Potasriik decides not to dismiss the hearing based on those briefs than he would conduct a new hearing on the variance.after'the oral argument on whether the brief should be dismissed. In a roundabout way what I was saying, is the Staff was hopeful that they might be able to make recommendations to the Hearing Officer that would:resolve the case not necessarily to either parties' satisfaction, but to the satisfaction of the parties such that they decide not to pursue further litigation. So that would be the hope here that after the Hearing Officer meeting on December 1:6'4 that Mr: Potasnik in his wisdom would be able to come up with a decision that both parties can live with. Leo Dierckman: You are ,making a pretty big presumption that none of us are going to request that comes off the Hearing Officer Agenda. Heads up. John Molitor: That is true, we are kind of making an assumption, it is your right if you want the full board to hear it, and however it seems to me that there are going to be at least three of the board members would need to recuse themselves which would require us to impanel alternates. I would submit for your consideration this evening this special rule that would apply to the Hearing Officer's meeting on December 16`h but does not preclude the members of the Board requesting a full five member panel assembling to hear the matter again. That would probably take place sometime in January instead of December. Leo Dierckman: I am just throwing it out there because you need to be complete. It is a possibility. Page 11 of 14 Carmel Board of Zoning Appeals September 22, 2014 Meeting Agenda John Molitor: It is a possibility and in your sole discretion to request that. That can be done up to five days before the hearing. James Hawkins: A couple of questions; who is the judge? • Judge Nation, He is under direct orders from the Court of Appeals to remand it in accordance with their decision, which upheld the Cities revocation of the Certificate of Occupancy. • This is why the Bowens are trying again.for this board to grant the variance. After 6 months to they not have the right to come back and make the same request? • They do but there is a legal doctrine called administrative res judicata which would mandate that the Board dismiss the variance unless the Board finds that conditions have changed. If the conditions are the same as when you originally denied it than you would be mandated to follow your precedent and vote the same way you did originally. Is that mandate the same if there are alternates on the Board? • The alternates are required to follow the precedent the same way the original members would be. Do you know specifically off hand who voted the last time? I know I voted on that. • . Leo- I did- I. think the other three are all eligible. Earlene would not be, because she has been on it the entire time that I have been here. What you are talking about is replacing two people. Alan Potasnik: Obviously I am going to be a part of it no matter what happens, we are welcome to look at it along those lines. But do you need five members to hear that? If it is the Boards wish to hear it as the Board of Zoning appeals do you need all five people to hear it? Or would you just need three? John Molitor: We have a quorum with three, if in. fact there is an appeal from your decision than the full board would to hear it and we would attempt to assemble a board comprised of five members. Alan Potasnik: The only way I am looking at this and having read the suggested text that you distributed it sounds like these folks have not come to a conclusion one way or another up to this point. It also sounds to me like it might be a while before they accept a decision, but not withstanding that if it is the wish. of the Board to have it heard by the full `board. What is the appellate process after that? • It goes back to court. The question there would be and this is a new issue in my opinion would it go back to Judge Nation again, or if it would go to a different court. I am not sure I would be able to predict the answer on that. Leo Dierckman: I am confused as to how a Hearing Officer be held on the 16`h but not a full body be held on the 16`x'. John Molitor: We scheduled a hearing for the Hearing Officer. Now if the Board wants it to be held as a full board than you may request it be removed from the Hearing Officer's Agenda. Leo Dierckman: You are saying that since you have noticed it as a hearing officer event that notice cannot serve as a notice for the full board? Because the action is still a Board of Zoning Appeals action. • Yes, now if the Hearing Officer makes a decision and it is not appealed within five days, then the case is over. Aren't there other involved parties? Other neighbors? None of them have taken that much of an interest in the case. But they would be entitled to appear James Hawkins: That was going to be my question is it just the Barnetts or were there other interested parties. Page 12 of 14 Carmel.Board of Zoning Appeals September 22, 2014 Meeting Agenda John Molitor: It was just the Barnetts at the time and no one else participated in the litigation. I cannot recall if there were other neighbors involved at the time. No other neighbor has taken an interest in this subsequent to the initial board decision. James Hawkins: I thought the other neighbors were for it if I remember right. Leo Dierckman: Yah, there were other remonstrators here, I remember that. John Molitor: They are certainly entitled to participate if they wish. All neighbors will get notice. Madeleine Torres: Who is requesting that it goes just to the Hearing Officer? Are the parties involved or is it a staff decision and the parties are agreeable to it? John Molitor: The . parties are agreeable to it; they understand that they still have the right to appeal if they don't like the Hearing Officer's decision. So again what I am asking for is for the Board to suspend your rules .in order to allow the Hearing Officer to hear this case according to this temporary rule as it has been drafted. .James Hawkins: When is the hearing going to take place again? ® December 16'h, 2014 at 9:00 am Leo Dierckman: If we pass that, how can we pull it back off the agenda again? Not that any of us would want to but I am curious. John Molitor: When you get that packet that staff is required to send to you and you do not want it to be heard by the Hearing Officer and you want it to be heard by the full board you would notify .Mr. Hollibaugh to remove it from the Hearing Officer agenda and put it on the full Board's agenda. It seems it would be difficult for us to assemble a full five member board with members that don't have anything to do with the previous case. Otherwise parties may object to participation by other members who have already voted on the issue. James Hawkins: Ultimately they could object to. it anyway and demand a full board. • Yes. Leo Dierckman: If it is contentious then they are automatically going to appeal it. And if they appeal it they are going to say this is only getting approved by one person and snot the full board. The courts will say that. John;Molitor: His decision cannot be appealed to a court; the only place his decision can be appealed is to the full board. Then you conduct a new hearing. On a Motion made, by Leo Dierckman to approve John's request to suspend the rules. Page 13 of 15 Carmel Board of Zoning Appeals September 22, 2014 Meeting Agenda James Hawkins: To Alan Potasnik- You are comfortable with this? Alan Potasnik: I am comfortable hearing it, but I am just as comfortable if you want it to be heard by the full board. But I am most comfortable with whatever the will of the BZA is. If there is anybody that feels this should be heard by the BZA as a whole than I am very comfortable. with that. We are not trying, to do something here to move along something. We as a board have listened to a lot of other contentious and difficult petitions and as a Board and I am fully aware of that and if there is anybody that Teels they would like to have the Board hear it, I have no issue with that. I am not uncomfortable in any way in participating as the Hearing Officer in this either. If they don't like it too bad and we will just go from there. Leo Dierckman: We have been in a situation not long ago that was very.similar to this and it didn't work. Because they ultimately drug us into court anyway. When we arbitrated that potential deal with the baseball player, remember that? Whoever loses is going to appeal your decision anyway and it is going to come before us all. John Molitor.: We didn't use the Hearing Officer but we did do something akin to this with Traditions on the Motion, where we had the City involved and the builder and the residence. That was conducted according to a special rule with the City being a third party involved and ultimately that did not get appealed. James Hawkins: I will second the Motion (made by Leo Dierckman), Motion Passes 5 -0 to suspend the rules and allow for a hearing officer meeting regarding this issue. Adjournment: Motion: On a motion made by Dennis Lockwood and seconded by James Hawkins. The Meeting Adjourned. MOTION CARRIED UNANAIMOUSLY . The meeting Adjourned at 8:08p.m. Approved this Z 4 day of Jef -k&cG c- 20 James Hawkins President Page 14 of 15 Mag . iford Secretary 1 n L