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HomeMy WebLinkAbout01-30-2015 BZA Hearing Officer MinutesCAg� f 'FitiC. X11 ulty nel of Un \NDIANp-'" / Cannel Board of Zoning Appeals Nearing Officer MINUTES January 30, 2015 Meeting Time: 9:00 a.m. Location: City Hall, Caucus Rooms, 1 Civic Square, Carmel, IN 46032 Hearing Officer: Alan Potasnik Staff Present: Mike Hollibaugh Director of DOCS Alexia Lopez Planning Administrator Maggie Crediford Recording, Secretary Legal Counsel: John Molitor BZA Ashley Ulbricht Assistant City Attorney (V) McCracken Bourdillon Estate, Lot 1— Bowen Accessory Building Height. The applicant seeks the following development standard variance approval: Docket No. 14100022 V ZO CH 25.01.01.B.1: 18 ft Max Accessory Building Height; 26.75 -ft proposed. The site is located at 10596 Jumper Ln. and is zoned S -1 /Residence. Filed by Albert Douglas Bowen, owner. Alan Potasnik: Calls meeting to order Would like to go over and make >sure that everything has been done according to what was sent out by the City Lex- The Remonstrator's brief has been submitted? The petitioners brief as well? And pursuant to Indiana Code that the department made a submittal as well. Alexia Lopez: ® Yes Alan Potasnik: ® The.rules of the hearing will be as follows. ® Not more than 50 minutes shall be allocated. for Oral Arguments and Public Comments on the question of whether the petition should be dismissed pursuantto the doctrine of res judicata as it applies to this petition. ® There will be up to 15 minutes for Remonstrator's comments. ® 5 minutes for public support of remonstrator's comments. O Petitioner's comments 15 • Public support of petitioner's. arguments 5 minutes. • Rebuttal of remonstrators is 5 minutes. • Staff argument will be 5 minutes. • Following the oral arguments, I will issue a ruling on the question of whether the petition should be dismissed. • Having said that let's get going here • Hearing open at 9:06 a.m. WWW.CARMEL.IN.GOV Page I of 1 (317) 571 -2417 Carmel Board of Zoning Appeals Hearing Officer Meeting January 30, 2015 Tim Ochs Attorney for the Remonstrator: 0 I am here on behalf of the Barnettes 0 The first part is pursuant to our motion to dismiss for res judicata preclusion 0 It's been briefed by all the parties, we had submitted an initial brief as well as a brief in reply to 0 I think those do a very good job 0 I would like to go through what this basically is. It is not difficult it is actually pretty straight forward and there is no reason to complicate it or throw things in that make it complicated. 0 Fundamentally the BZA and yourself when you sit as a hearing examiner is a quasi-judicial body as opposed to a legislative body like the Council 0 Like any court in the .state of Indiana, once a court decides an issue that's it. You get one bite of the apple. 0 So if you and I have a contract, and I breach it and you sue me, or say I strike you and you sue me for assault and we go to court and the court finds that Mr. Ochs is not guilty of or is guilty of breaching the contract the losing party does not get to re -file that claim and keep going until he gets the decision that that person wants. 0 The prohibition on that is what res judicata is. We have looked at these issues, we have gone through them. 0 It is a waste of everyone's time to go through it all again and, it is not fair. Indiana Law states that resjudicata applies particularly in the case of a Board of Zoning Appeals decision in a rehearing of a variance. • Indiana courts have said it applies, you can't hear it. The only way that you could hear it is if there is "when there is a change in conditions, circumstances or facts that relate specifically to the reasons that the Board gave to denying the variance in the first place. 0 The first thing is then to go back and look o The original hearing in this matter was in April of 2011. 0 I am passing around simply nothing more that the findings that were adopted in May of 2011 after the April hearing. 0 They were drafted after the meeting and then approved by the Board of Zoning Appeals at its May 2011 hearing. 0 As it relates to this particular case, the petition itself is absolutely no different. 0 It is the exact same petition and it (because it has already been built) the exact same barn, there is absolutely nothing different about this petition zero. 0 Now the petitioner, the Bowens allege that there is a mound and landscaping that has been installed on the Barnetts' property, not their property, but my clients' property. 0 That somehow since my client put in a mound and landscaping that somehow that is a change in circumstances that can open back up this variance request. 0 After the BZA heard it in 2011, after it went to the trial court after it went all the way up to the Indiana Appellate court. 0 Now they want to start over from scratch. 0 It is not fair, it is not right and it is contrary to Indiana Law. 0 Let's look at the allege change. 0 Is there a change in circumstances? 0 Does the mound and landscaping relate specifically to the reasons that the board gave when they denied the petition? 0 Finding 1 (from the original Findings of Fact) The existing barn which is approximately 36.5ft in height is visible from adjoining properties and therefor adversely affects the general welfare of the community as it is unsightly and not harmonious with the accessory buildings of the adjoining homes. 0 It is the same barn, there is no change there. 0 They will say that you cannot see the barn like you could before because of the landscaping the Barnetts installed, and I will say time out. 0 Minutes from April 25"' 2011 BZA meeting are presented 0 On page 12 of those minutes you will see at the bottom of that page there is a discussion by Joe Barnett and as it turns out this barn was already built. It was built too tall and that cannot be denied, as it has been decided in the Indiana Appellate case. 0 The Barnettes had already moved forward in trying to do about this huge 2000 +sf barn that quite frankly sits closer to their house than it does to the Bowens. 0 As the BZA was looking at this situation Leo or maybe the Chair asked Mr. Barnett what the pink markings on the trees were in some of the photographs that were permitted. Page 2 of 9 Carmel Board of Zoning Appeals Hearing: Officer Meeting January 30; 2015 le Mr. Barnette explained that those were photos from the landscaper and that there were already a couple of trees planted and he explained exactly what they were going to do. • Joe said we are going to try to shield it the best that we can, we just don't think that we are going to be able to, and then he explained the landscaping. • First and foremost, this isn't a change in circumstances, back.in April of 2011 . the mound and landscaping that everybody is talking about as a change in circumstance was already considered by the Board. • There is nothing different here than that original April hearing. • It shouldn't feel right to you, that here we go again. • Think about the precedent that sets. • Every time someone in Carmel has a variance denied are they just going to come back and re -file until they get an approval? No, that is not right. • It shouldn't be allowed. • Finding of Fact number 2. • The existing barn which is 36.5ft in height.. has been demonstrated to have amaterial adverse impact on the value of adjoining properties as evidence in the affidavit by Karen Hyde French Dated April 1 Stl'.2011. • How can the exact same barn when, this finding has been made and there have been no changes made to the barn, how can that barn cause a loss of value to surrounding properties in 2011 and not do that in.2015? It doesn't make any sense and it shouldn't • If the argument is the mounding and the ,landscaping changes everything, well the Barnetts spent six figures on that landscaping job and now they have a large chunk of their backyard that they can no longer use. • That in and of itself is a loss of use and a loss of value. ® Finally, and quite frankly I toyed with just arguing that last issue and as you well. know, the third requirement for a variance is the strict application of the zoning ordinance; they have to demonstrate that the strict application of the ordinance will result in practical difficulty in the'use of the property. ® The Board decided that the strict application of the zoning ordinance did not result in the loss of use or practical difficulty of the property because the accessory structure can be constructed so that it complies with the Carmel Zoning Ordinances, and any practical difficulties that exist are due to the acts of the petitioner. • The mound has nothing, zero to do with that. • 1 don't care if the mound was l Oft higherand the trees were l Oft taller and it was a. completely solid screen. Nothing regarding that changes that third petition • They are arguing that they want you to believe is a change in circumstance they get to reopen everything. • That is.iiotright. • This determination has been made, and they are simply asking the BZA to remake the decision because they didn't like it the first time. • This is what res judicata is about. It is to prevent these types of things from happening. • It is the law and they are : not entitled tobeireheard one more time. ® Quite fianklywe should °just simply not be here • Two final thoughts, there is a notion under Indiana Law about not being able to benefit from their own wrong doing, this is an interesting situation. Usually when,someone appears before the BZA -and asks for a variance it is to build something that is not yet constructed. In this case this was.already built. So my clients were forced to deal with that reality. They live in their dream home as they testified to in.201.1. They fortunately had the wherewithal to do what they had to do to deal with it. So they took the affirmative steps .to put in landscaping and somehow that is supposed to be a change in circumstances and quite frankly I find that a little bit offensive. Think about what that is suggesting or motivating. Were the Barnettes just supposed to -sit therefor three or four years and just do nothing? That's not right. So now when they say they are going to try to do something about it on their own, not the petitioners, then they jump forward and say now there is a change in circumstances and now we can re -file. To me that is offensive and it is not right. • Let's assume some absurd results. Let's say if you decide to deny our petition and we move forward and you hear their arguments let's say that this case is then appealed to the full BZA which is the right of either party. Let's say the Barnettes go in and tear out all the landscaping that is there and restores the property to the exact same way it was before. Which is their right, it is their property. Then we are right back on all fours. We are right back to the exact same Page 3 of 9 Carmel Board of Zoning Appeals Hearing Officer Meeting January 30, 2015 conditions from which the original petition was denied. And that would be an absurd result and it is absurd because th steps that have been taken the alleged change in circumstances are steps that my clients have taken, not the Bowens, th petition is exactly that same. • My clients have had to live with it now for four years. • Enough is enough, they had their chance, and they had their opportunity. This is the exact same thing, it doesn't change • The barn could have been constructed with in the zoning ordinance. • Any practical difficulty that exists is based on the actions of the petitioner. • There is nothing that can be or has been alleged that changes that. • The Board has already decided it. • This matter should not be heard the Board has already decided it. • It should be dismissed by the application of the doctrine of res judicata. • Thank you for your time, and I would be happy to answer any questions you might have. Alan Potasnik: Do you have no one here at this time to speak in favor of your position? o No, no one else on behalf of the Barnettes. That's fine, thank you very much. Petitioners you have 15 minutes. Brian Falcon: Frost Brown Todd LLC Attorneys a The motion to dismiss fails for two reasons. • It fails because there has been a material change in circumstances and conditions so that res jucdicata does not prohibit a rehearing of this variance. • It also fails because the Carmel BZA Rules allows this variance request to be brought again. • The purpose of res judicata into refuse to allow the Board of Zoning Appeals to indiscriminately reconsider a prior decision absent a change in circumstance. • That purpose would not be served here because there has been a material change in circumstance. Which induce the prior denials. • Each of the rulings and findings back in 2011 are linked to the landscaping changes and additions that have been made to the Barnett property. • The manor to which those changes to landscaping impact and affect this petition for variance. • The first finding as Mr. Ochs stated the accessory structure was visible from adjoining properties and adversely affects the general welfare of the community as unsightly and unharmonious. • Second finding that the accessory structure . had a material adverse effect on the value of adjoining properties. • Finally that any practical difficulties with compliance that exist would have been caused by the Bowen's acts. • We will address each of those in turn. o New facts that exist today that did not exist in April of 2011. • Most notably can be seen in two pictures (referring to, exhibits) • Granted the second picture isn't the best quality. Both pictures, however were taken by the Barnettes. • Mr. Ochs pointed out in April of 2011 as you will see in the minutes Mr. Barnett said we are in thee- process of doing this work. • They were in the process that is right, but it certainly had not been completed. • In or about April 2011 . the first picture is the view of the accessory structure from the Barnett's property. • In the second photo even though the quality is less you can see the top of the structure and the tree line of the evergreens. • Mound is built up and evergreens present. • That is clearly -a change in the circumstances from 2011, when the structure was 100% visible. • I would point out that these are not deciduous trees; they are not Pear trees that will shed their leaves every October an will not bloom again until April. • These are mature evergreen trees and they are.only going to continue to grow and block the Bamett's view substantially at this point. Page 4 of 9 Carmel Board of Zoning Appeals Hearing Officer Meeting January 30, 2015 • The Boffo case sited in our brief and responded to in the remonstrator's brief really just opens and shuts the door on this. • Boffo controls this decision and weighs against dismissal. it • By way of a couple of background, facts on the Boffo case. • The BZA in that case had denied a request for a Special Exception about 6 months later a second request for a Special Exception is made. • Just like here, neighboring land owners argued that res judicata barred the issue from being reheard. • Case is remanded • Board of Zoning Appeals in Boffo finds, petitioner since the initial rejection of the request for variance for a Special Exception has erected a large earthen mound along the northern perimeter of his real estate to block the view of the Sanitary Landfill operation from the view of the church. Petitioner has .graded the western slope of the landfill, constructed a collecting pond and erected and put in place portable backstop type fences. • The Court in Boffo holds that because of the improvements made at the time of the second request, Fence, Mound, Grade didn't exist -at the time of the first request that petitioners demonstrated significant material change in circumstances since the first filing. • Remonstrators make the argument.that it was the Barnettes that took the action to raise the grade in this case and plant the trees. • You can review the Boffo case and various cases that parties have sited and you won't see anything in those cases that it be the petitioner that change those circumstances. • In Boffo, the accessory structure in that case was a landfill that occupied 32 acres. • The petitioner made these changes to another portion of the property other than the 32 acres. • One of the arguments made by the Remonstrators in Boffo made was that they haven't actually changed the portion of the property that is the problem. • The court there said, although the changes may not appear to involve the property for which the special exception is sought, they are material and represent changes in the circumstances and conditions. • So whether we are talking about changes to the physical property or not doesn't matter. • What is key here is has there been a material change in circumstances that impact the accessory structure, and in this case there are sir. • They also point out that in Boffo that there was no specific finding with respect to the first request for a special exception; the court of appeals goes on at some length discussing the differences between Special Exceptions and Variances. At that time Variances had to have specific findings, which were not the case with Special Exceptions. At the end of the day the analysis is the same. • With Respect to the Second request for variance or special exception, has there been a material change in circumstances? • There has. • Just to discuss briefly sort of where it leaves us now and why this motion to dismiss should not be granted. • First finding that it was visible from adjoining properties and adversely effected the general welfare, well the change in circumstances now certainly has impacted how visible it is from adjoining properties as you can see from that second picture, the top of the structure can still be seen certainly at this point when those pictures were taken in November or December whenever it was. • The visibility is clearly impacted. • Also that it adversely affected the general welfare of the community. Mr. Kittle is here if this hearing goes forward on the merits, Mr. Kittle is going to be here to explain to you his thoughts on the general welfare of the community from his perspective. • You have affidavits from Mr. Bodner and Mr. Sheppard to that same effect. • Each of those three neighbors.like the structure, they approve of the structure, and they have no concerns no issues with its location, its style, its existence. There is no loud parties, loud noises, that are emanating from the structure, nothing. • They are all in favor of the structure staying as built. • Second finding, material adverse impact on value of adjoining properties. • We have Mr. Kittle here who will talk about what impact if any this has he thinks on the value of his property. • You have affidavits from the other two neighbors who have no concerns or issues regarding their property value as a reflection of this structure. Page 5 of 9 Carmel Board of Zoning Appeals Hearing Officer Meeting January 30, 2015 • Ms. French's affidavit that has been submitted, well you know, I would submit to you while she is certainly qualified t offer those opinions, she herself states that it is impossible to know what the lost value is, she hasn't fully evaluated th value of the Barnett's property, she states that the encroachment could be the single reason a perspective buyer would buy the Barnett's home. • A barking dog in the Bowen's back yard could prevent someone from buying the Barnett's property if they don't like barking dogs. • So I am not sure we have quite the value evidence coming from the Remonstrator's side that is necessary. • The third fact strict application of the Zoning Ordinance resulting in practical difficulties. • This accessory structure was built first upon plans prepared by Mr. and Mrs. Bowen's architect. US Architects. They went to US Architects, they relied on US Architects to review the Zoning Ordinance and make sure that it was on all fours. • Five comments were issued back nothing about height. The comments and issues were addressed, permits issued, a Certificate of Occupancy issued by the City of Carmel. • Mr. and Mrs. Bowen then go to the expense north of $400,000.00 to design and construct this structure. • Now to remove 8ft of it would probably be somewhere in the neighborhood of $100,000.000 to $150,000.00 dollars. • It is a $600,000.000 outlay for the Bowens at this point in simple reliance on their architect and on the City of Carmel. • I think it is important to note, we are not talking about, and I think Mr. Ochs may have said it too, ifhedidn't I apologize, but I think he also mentioned some reference in the minutes or the argument to a 40ft structure or a 37ft structure. • It is a 26.5ft structure for purposes of the Zoning Ordinances we are talking about 8ft, we are not talking about a structure that for Zoning Ordinance purposes is 22ft. • I don't think you can look at the Barnett's outlay of money for landscaping in a vacuum and not consider against that the Bowen's cost that have been incurred and will be incurred in reasonable reliance upon what has befallen them here. • So there has been a material change in circumstances with respect to landscaping, and neighbor owner support that was not necessarily there last time. • Finally while I fully believe that a material change in circumstances exists here, even if it doesn't the BZA acknowle and allows by its one rule A development Standards Variance Application which has been decided adversely to the petitioner shall not be placed again on the agenda for consideration until legality of the decision is determined or a period of six months following the day of the adverse decision issued by the BZA whichever is later. • That is what the rule says and we are well outside six months. • By the plain language of the rule, the Bowens can be back here before you seeking this variance. • The Remonstrators make some points in their reply that BZA Rules are procedural rules based on the Schluster case • Well in that case those procedures were simple logistics those were true procedural rules. • Time, Place of the hearing when it will take place, this rule from the Carmel BZA that I just read to you is a rule of substance. It allows a subtenant right to come back before the BZA and seek another variance or another bite at the apple so to speak. • They also argue that BZA is limited by its enabling legislation and that is absolutely true, and that they cannot trump statutory rules or cannot step outside the statutory frame work. Res judicata is a common law doctrine. • There is nothing that prevents the BZA from allowing what they allow here. • Resubmission of a second bite of the apple based on the plain language of that rule sir. • With that said, the Bowens request respectfully that you deny the request of the motion to dismiss so that we can argue and hear the merits of this second request for a variance. Alan Potasnik: • Do you have anyone with regards to the question that we are discussing right now here to support you? Brian Falcon: • If we get to the merits Mr. Kittle will talk about that, but as to the legal issue on the motion to dismiss, I don't believe s no. Page 6 of 9 Carmel Board of Zoning Appeals Hearing Officer Meeting January 30, 2015 t Ochs: I will start with his last argument which quite frankly I would go as far as to say is almost nonsense. .The law is the law, whether the source of the law is statutory or the source of the law is case law, as we sit in this room we are bound by law that is the beauty of the United States we are ruled by laws not by people. • Indiana law, even though the source is case law clearly says that res judicata applies to situations where BZA's have made decisions. • It is no different than if the BZA attempted to say we are only going to require 8 days' notice prior to a public hearing when the Statute requires a minimum of 10. • You can't do that. State law trumps. So to suggest somehow that the BZA has adopted a rule that says you cannot re -file for a period of six months somehow allows them to do this is contrary to state law. • State law applies; the common law applies in res judicata. And res judicata applies here. • The rule says what it says, but it cannot trump state law, that is illegal. • I found it interesting when my collogue was arguing, he was arguing the merits, he wants to talk about, well these neighbors will testify that there is changes. • They want another bite of the apple here. • They want to open the issues back up and reargue them and that is exactly what res judicata is to protect against. • They had their chance, they had their shot and they failed. • The Indiana applet court case in this matter makes it clear that all these issues, oh feel sorry for us, they spent all of this money on this barn and it's too tall and we got approval in the first place. • It doesn't matter. What the Indiana appellate court decision and their failure to appeal that to the Indiana Supreme Court means that they built it too tall and they shouldn't have and it is their fault. • Quite frankly they have recourse against their architect because their architect is the one that really screwed up here. • That issue is done, that issue has been settled. It is too tall, it's not Carmel's fault, it is not the Barnette's fault, and it is their fault end of discussion. They lost at the BZA, they lost in,court and then they want to try yet again and that is not right. • I did not hear anything to suggest that there is a change in circumstance that could possibly change the criteria regarding the practical difficulty issue. There is nothing there. • How could landscape ever affect their ability to construct the barn in accordance with the applicable height requirements? • What this is really about is their architect screwed up they built a barn that was too tall. • We can landscape until the cows come home that doesn't change and that was one of the findings of the BZA in April 2011. • There are no circumstances that change that at all. • Res judicata applies here. • This case should absolutely be denied, with that we would be happy to answer any questions you might have. Alan Potasnik: • Ok, Thank you, Staff do you have anything you want to add? Ashley Ulbricht: • Nothing additional. • We would just stand on our statements in our brief. • It is our feeling that despite the tortured route taken by the Bowens in this case that the plain language of our rule does provide that the merits of the petition may be heard by the BZA if that is decided by the Hearing Officer. Alan Potasnik: • Ok, well I have looked at everything that was presented, read the briefs, I have made a tour of the property, I've taken my own photos and looked at those, looked at the past court cases with regards to this, read the minutes of the BZA meeting from April 2011. • Actually I am going to find in favor of the Remonstrator and dismiss this. • Is there anything else I need further? • I don't think we need to hear this. Page 7 of 9 Carmel Board of Zoning Appeals Hearing Officer Meeting January 30, 2015 John Molitor: 0 At this point the Bowens would have the right to appeal the decision to the full BZA. Brian Falcon: 0 10 days? o Five days. Alan Potasnik: 0 I move, hearing no other business come before this Special Hearing Officer meeting, I adjourn it. Meeting Adjourned at 9:48 a.m. Approved this _day of Feb('0aM 2015. . fan �otasnik Hearing Officer Page 8 of 9 Maggie Cre i ord Recording Secretary 1 1 1