HomeMy WebLinkAboutApplication CITY OF CARMEL- BOARD OF ZONING APPEALS \\C �\
APPLICATION FOR ACTION -APPEAL REQUEST 5S c ,
Fee: $163.00 /-
DOCKET NO. DATE RECEIVED: I' & J ZO1
Carrington Woods North Homeowners Association,Inc.,and owners in the Carrington Woods neighborhood identified on Exhibit A.
1) Applicant:
Address:See Exhibit A.
'Badger Fields Special Use Amend Required'-See Exhibit B—Appeal of Administrative Determination by Director of Community Services.
2) Project Name: Phone:
Engineer/Architect: N/A Phone: N/A
Attorney: Harrison & Moberly, LLP - Rory O'Bryan, Partner Phone: 317-6394535
Contact Person: See Exhibit A Phone:See Exhibit A
Email: See Exhibit A Fax:See Exhibit A
3) Applicant's Status: (Check the appropriate response)
(a)The applicant's name is on the deed to the property
(b)The applicant is the contract purchaser of the property
✓ Applicant is a homeowners association and owners of homes adjacent to CDC property known as Badger Fields.See Exhibits A&B.
(c)Other:
4) If Item 3) (c) is checked, please complete the following:
Owner of the property involved:See Exhibit A
Owner's address: See Exhibit A Phone:See Exhibit A
5) Record of Ownership:
Deed Book No./Instrument No. N/A
Page: N/A Purchase date: N/A
6) Common address of the property involved:See Exhibit A
Legal description: N/A
Tax Map Parcel No.: N/A
7) State explanation of requested Appeal: (State what you want to do and cite the section number(s)of the
Carmel/Clay Zoning Ordinance which applies and/or creates the need for this appeal).
See Exhibit B—Appeal of Administrative Determination by Director of Community Services.
8) State reasons supporting the Appeal: (Additionally, complete the attached question sheet entitled "Findings of
Fact-Appeal").
See Exhibit B—Appeal of Administrative Determination by Director of Community Services;and see attached"Findings of Fact-Appeal."
9) Present zoning classification of the property:S-1 Residential
10) Present use of the property:Outdoor Sports fields
BZA Appeal Application-pg 1 rev. 11/19/2015
A 1L
1 1) Size of lot/parcel in question Subject property titled in the name of CDC is approximately 36.63 acres
12) Describe the proposed use of the property Subject property is currently used for outdoor sports fields,an administrative building,and related parking.
The use proposed by CDC's Application for Development Standards Variance Docket No.15110003 Visa new 100,000 SF,74'tall building that
is referred to in its Application as an"air-supported structure"that would include indoor fields(necessarily artificial surface)for year-round recreational activities.
13) Is the property: Owner occupied ✓ Renter occupied Other
14) Are there any restrictions, laws,covenants, variances, special uses, or appeals filed in connection with this
property that would relate or affect its use for the specific purpose of this application? If yes, give date and
docket number, decision rendered and pertinent explanation.
Terms and conditions of original approval for MC of a special use,circa 1978.
15) Has work for which this application is being filed already started? If answer is yes, give details:
Building Permit Number: N/A
Builder: NIA
'16) If proposed appeal is granted,when will the work commence?NIA
17) If the proposed appeal is granted,who will operate and/or use the proposed improvement for which this
application has been filed?
N/A
NOTE: LEGAL NOTICE shall be published in the Noblesville Times a MANDATORY twenty-five(25)days prior to the
public hearing date. The certified "Proof of Publication"affidavit for the newspaper must be available for inspection the
night of the hearing.
LEGAL NOTICE to all adjoining and abutting property owners is also MANDATORY,two methods of notice
are recommended: _
1)CERTIFIED MAIL-RETURN RECEIPT REQUESTED sent to adjoining property owners. (The white
receipt should be stamped by the Post Office at least twenty-five (25)days prior to the public hearing date)
2) HAND DELIVERED to adjoining and abutting property owners (A receipt signed by the adjoining and
abutting property owner acknowledging the twenty-five (25)day notice should be kept for verification that the notice
was completed)
REALIZE THE BURDEN OF PROOF FOR ALL NOTICES IS THE RESPONSIBILITY OF THE APPLICANT. AGAIN,
THIS TASK MUST BE COMPLETED AT LEAST TWENTY-FIVE (25)DAYS PRIOR TO PUBLIC HEARING DATE.
The applicant understands that docket numbers will not be assigned until all supporting information has been
submitted to the Department of Community Services.
Applicant Signature: -�- I`1►c� �h 7 —Je,eve;
Thea applicant certifies bysi in thi��tion that he/ e has been advised that all representations of the Department of
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Community Services are advisory only and that the applicant should rely on appropriate subdivision and zoning ordinance and/or
the legal advice of his/her attomey.
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BZA Appeal Application-pg 2 rev.11/19/2015
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EXHIBIT "A"
1. Applicants: The Carrington Woods North Homeowners Association, Inc.
c/o Douglas Deck,President
5200 Carrington Circle
Cannel,IN 46033
Phone: (213)—645-4006
Email: Doug Deck(ddeck309@gmail.com)
Clint Bucher
5189 Carrington Circle
Cannel, IN 46033
Phone: (317) 903-6757
Email: Clint Bucher(cbucher@pfinancial.com)
Gary Hubbard
5196 Carrington Circle
Cannel, IN 46033
Phone: (317) 525-2611
Email: Gary Hubbard(garyhubbard29@gmail.com)
Bill Farrell
5190 Carrington Circle
Cannel, IN 46033
Phone: (317) 571-9647
Email: farrell_w@att.net
2. Attorney: Rory O'Bryan, Attorney
Harrison Moberly
11611 North Meridian Street
Suite 150
Cannel,IN 46032
Phone: (317)639-4511
3. Subject Property : Real estate commonly known as Badger Fields,
5459 East Main Street,
Cannel,Indiana 46033
The Subject Property is (i) owned by the Cannel Dad's Club, Inc. (ii)
approximately 36.63 acres in size and (iii) is generally rectangular in shape and
located south of 131x` Street in Carmel, Indiana, west of the Northview Christian
Life Church and east of the Clay Middle School on 126th Street.
4. Applicants' Property: Various homes in the Carrington Woods residential neighborhood located in the
City of Cannel, IN on the north side of 125t Street, between Gray Road on the
west and Hazel Dell Parkway on the east, immediately south of and adjacent to the
Subject Property.
AFFIDAVIT
I, being duly sworn depose and say that the foregoing signatures, statements and answers herein contained
and the information herewith submitted are in all respects true and correct to the best of my knowledge and belief. I,
the undersigned, authorize the applicant to act on my behalf with regard to this application and subsequent hearings
and testimony.
Signed: (--- 6192 . DeCia_
(PropeOwner, Attorney, or Power of Attorney)
Douglas Deck,President Carrington Woods North Homeowners Association,Inc.
(Please Print)
STATE OF INDIANA
SS:
The undersigned, having been duly sworn upon oath says th?t thea a info mation is true and correct and he is
informed and believes. 4-)
(Signature of Petition) C�
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County of )---'‘,G`O--)1 --LW-1 Before me the undersigned, a Notary
Public
(County in which notarization takes place)
for 1ar-\o`Cl County, State of Indiana, personally appeared
(Notay Public's, county of residence)
�C�11 0- Oecic and acknowledge the execution of the foregoing instrument
this (Propertwner, Attorney, or Power of Attorney)
7th day ofv\uo0 , 20 ? G .
(day) (month) ( ear)/��
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Notary Public--Signature
(SEAL)
RY';:yd,., LINDA R.CARAHER
Marion County Notary Public--Please Print
;._ My Commission Expires
%;; s' March 31,2016 — My commission expires:
BZA Appeal Application-pg 5 rev. 11/19/2015
1 r
AFFIDAVIT
I, being duly sworn depose and say that the foregoing signatures, statements and answers herein contained
and the information herewith submitted are in all respects true and correct to the best of my knowledge and belief. I,
the undersigned, authorize the applicant to act on my behalf with regard to this application and subsequent hearings
and testimony. s—
Signed: o-'<./k_
(PropeFty Owner, Attorney, or Power of Attorney)
Douglas Deck, Property Owner
(Please Print)
STATE OF INDIANA
SS:
The undersigned, having been duly sworn upon oath sa that the infor ation is true and correct and he is
informed and believes. Cti
(Signature of Petition)
County oft\ 01 l � Before me the undersigned, a Notary
Public
(County in which notarization takes place)
`n
for V V \a< t o‘n County, State of Indiana, personally appeared
(Notary Public's county of residence)
Douglas Deck and acknowledge the execution of the foregoing instrument
this (Property Owner, Attorney, or Power of Attorney)
7 23
day of \(1 ( c(ci, , 20 I
(day) (month) ear)
Notary Public--Signature
i" f ,s: 't ..A�� LINDA R.CARAHE•
Marion County
_ .$EAL ?r My Commission Expir: Notary Public--Please Print
March 31,2016
My commission expires:
BZA Appeal Application-pg 5 rev. 11/19/2015
1 •
AFFIDAVIT
I, being duly sworn depose and say that the foregoing signatures, statements and answers herein contained
and the information herewith submitted are in all respects true and correct to the best of my knowledge and belief. I,
the undersigned, authorize the applicant to act on my behalf with regard to this application and subsequent hearings
and testimony.
Signed:
(Property Owner,Attorney, or Power of Attorney)
Clint Bucher, Property Owner
(Please Print)
STATE OF INDIANA
SS:
The undersigned, having been duly sworn upon oath says at thove information is true and correct and he is
informed and believes. /&=
(Signature of Petitioner)
County of MARL UK) Before me the undersigned, a Notary
Public
(County in which notarization takes place)
for X10 r 0Jr\ County, State of Indiana, personally appeared
(Notarublic's county of residence)
Clint Bucher and acknowledge the execution of the foregoing instrument
this (Property Owner,Attorney, or Power of Attorney)
w day of S3.-1\uL0.rtj 20 ( (c
(day) (month) (year)
Cum
Notary Public--Signature
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I osie Reed ,
Notary Public Seal Woof Indiana ►il G X��-��-�'
MorganCo�Nity R Notary Public--Please Print
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My Commission Expires 02106/2016
My commission expires: • 1p. 9,oI Lo
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BZA Appeal Application-pg 5 rev. 11/19/2015
1 . •
AFFIDAVIT
I, being duly sworn depose and say that the foregoing signatures, statements and answers herein contained
and the information herewith submitted are in all respects true and correct to the best of my knowledge and belief. I,
the undersigned, authorize the applicant to act on my behalf with regard to this application and subsequent hearings
and testimony.
Signed: 6.1,t ,“,..-ze_
(Property Owner,Attorney, or Power of Attorney)
Bill Farrell, Property Owner
(Please Print)
STATE OF INDIANA
SS:
The undersigned, having been duly sworn upon oath says that the ove inform tion is true and correct and he is
informed and believes. cede
(Signature of Petitioner)
County ofo C/ 11 f n Before me the undersigned, a Notary
Public
/� (County in which notarization takes place)
for V `C\ b r County, State of Indiana, personally appeared
(Notary Public's county of residence)
Bill Farrell and acknowledge the execution of the foregoing instrument
this (Property Owner, Attorney, of Attorney)
74" day of y)vac c 1, 20 16' .
(day) (month) ar) p
(4a a �0
Notary Public--Signature
(SEALl
!\ LINDA R.CARAHER
Y'our!. Marion County Notary Public--Please Print
' 4 My Commission Expires
••.1,46;14:= March 31,2016 My commission expires:
i
I
•
BZA Appeal Application-pg 5 rev.11/19/2015
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AFFIDAVIT
I, being duly sworn depose and say that the foregoing signatures, statements and answers herein contained
and the information herewith submitted are in all respects true and correct to the best of my knowledge and belief. I,
the undersigned, authorize the applicant to act on my behalf with regard to this application and subsequent hearings
and testimony. / ,
Signed:
4!
(Pro erty Ow -r,Attorney, or Power of Attorney)
Gary Hubbard, Property Owner
(Please Print)
STATE OF INDIANA
SS:
The undersigned, having been duly sworn upon oath s that the above inf. ma ion is true an. correct and he is
informed and believes. , it
•(Sign(ature of etitiioneer)
County of PaYllI G'k)h Before me the undersigned, a Notary
Public
(County in which notarization takes place)
for WO C) oY) _ County, State of Indiana, personally appeared
(Notary Public's county of residence)
Gary Hubbard and acknowledge the execution of the foregoing instrument
this(Property Owner, Attorney, or Power of Attorney)
6' day of `nlik Gt S , 20 `(=,
(day) (month) r)
0)1
cLeLr7
Notary Public--Signature
LINDA R.CARAHtR
'`'1ar'nr'County NotaryPublic--Please Print
y Cnmrnission Expires
March 31,2016
My commission expires:
BZA Appeal Application-pg 5 rev.11/19/2015
CARMEL/CLAY BOARD OF ZONING APPEALS, CARMEL, INDIANA
Docket No.:
Petitioner: Carrington Woods North Homeowners Association,Inc.,et al
FINDINGS OF FACT-APPEAL
1. The Petitioner has (has not) properly followed the Appeals Procedures outlined in Ordinance Z-160, Section
30.2, et seq. except as follows:
The Petitioner has properly followed the Appeals Procedures outlined in Ordinance Z-160,Section 30.2,et.seq.
2. Nature of action appealed from:
Administrative Determination that Carmel Dad's Club,Inc.,is not required to file for a Special Use Amend.to proceed with project described in DSV Docket No.15110003 V.
Agency:Director of Department of Community Services.
Date of Agency Decision:December 14,2015
3. Attached copy of Ordinance or materials which is subject of Appeal as Petitioner because:
See Exhibit B of Appeal Application—Explanation for Appeal of Administrative Decision
4. The written materials submitted to the Board does support the Petitioner because:
See Exhibit B of Appeal Application--Explanation for Appeal of Administrative Decision.
5. The Agency, Official, Board or Zoning District boundary should be affirmed.
The Administrative Determination dated December 14,2015 that Carmel Dad's Club,Inc.,is not required to file for a Special Use Amend.to proceed with
project described in CDCs Application for Development Standards Variance,Docket No.15110003 V should not be affirmed,but instead should be vacated and reversed.
6. The work on the premises upon which appeal has been filed shall not be stayed because:
All work and proceedings related to CDC Application for Development Standards Variance,Docket No.15110003 V should be stayed unless or until CDC
files for and obtains approval for a Special Use Amend.for the reasons set forth in Exhibit B of Appeal Application--Explanation for Appeal of Administrative Decision.
DECISION
IT IS THEREFORE the decision of the Carmel/Clay Board of Zoning Appeals that Appeal Docket No.
is granted, subject to any conditions stated in the minutes of this Board, which are
incorporated herein by reference and made a part hereof.
Adopted this day of , 20
CHAIRPERSON, Carmel/Clay Board of Zoning Appeals
SECRETARY, Carmel/Clay Board of Zoning Appeals
Conditions of the Board shall be listed on back.
(Petitioner or his representative to sign).
BZA Appeal Application-pg 10 rev. 11/19/2015
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EXHIBIT "B"
EXPLANATION FOR APPEAL OF ADMINISTRATIVE DETERMINATION
I. BACKGROUND
A. Carmel Dad's Club Project
On November 13, 2015, the Carmel Dad's Club ("CDC") filed an Application for
Development Standards Variance with the Cannel Board of Zoning Appeals ("BZA"), seeking a
height variance for"the construction of an air supported structure with a height of 74 feet"in the
S-1 Residence District, for which Section 5.04.01 of the Carmel Zoning Ordinance allows a
maximum building height of 35 feet(the "CDC Height Variance Application"). The
application states that the structure will be located at the south end of the 36.63 acre parcel at
5459 E. Main Street in Cannel, commonly known as the Badger Fields (the"CDC Real
Estate"). The cover letter accompanying the application also notes that maximum permitted
accessory building height in an S-1 Residence District is 18 feet. The application alleges that the
"proposed use of the property" is"same as existing"except that it will "allow these
[sports/recreational] activities to continue in the winter months with a significantly lower number
of participants."
An exhibit to the CDC Height Variance Application labeled"Floor Plan" shows that the
enclosed floor area of the air-supported building(the"Recreation Building")will be
approximately 100,000 square feet. That exhibit also shows that the Recreation Building would
have 2 revolving entries/exits, 4 single door emergency exits, and 2 double emergency door
exits; and that the building will require 2 exterior heating and inflation units, each with a
generator to power the unit. Another exhibit, labeled"Perspective/Elevations" shows a"Vehicle
Air Lock"on one side of the building, apparently so that trucks or other vehicles can drive in and
out of the Recreation Building. Finally,the exhibits to the application also include plans for
interior lighting of the Building, as well as a new paved and lighted parking area with 26 spaces
and a new access drive across the CDC property to the Recreation Building.
The CDC Height Variance Application was scheduled for a hearing on the single BZA
hearing officer's agenda for November 23, 2015,just 10 days after filing. Upon receiving notice
of the hearing, several residents of the Carrington Woods Neighborhood engaged counsel and
contacted the Department of Community Services and other civic leaders. On or prior to
November 23, 2015,the hearing on the CDC Height Variance Application was postponed to
January 25, 2016.
B. Carrington's Request for Determination
On November 24, 2015, counsel for the Carrington residents (collectively"Carrington")
Applicants, by their counsel, filed a letter(copy attached hereto as Attachment 2,the"Carrington
Request for Determination")with the Cannel Clay Board of Zoning Appeals. The letter explains
briefly why CDC's proposed Recreation Building requires a Special Use Amendment,not merely
Exhibit B—Page 1
Amendment,not merely a height variance, under the Carmel Zoning Ordinance,then requests
confirmation of each of the following:
1. That the requested variance will be heard by the full BZA at its hearing scheduled for
6:00 PM on Tuesday,January 26, 2016, or at a subsequent hearing of the full BZA;
2. That, in addition to and independent of its requested height variance,the CDC also be
required to properly notice and obtain a determination on an application for approval
of a Special Use Amend in order for the CDC to erect the proposed Air Supported
Structure;
3. That the CDC project not be allowed to proceed without compliance with all
applicable notice and other requirements for a Special Use Amend, including
thorough TAC [Technical Advisory Committee] review;
4. That the CDC project be placed on the TAC agenda for a regularly scheduled TAC
meeting occurring before the BZA hearing; and
5. That the height variance and the Special Use Amend applications not be bifurcated,
but instead both will be heard by the full BZA on the same evening so that the BZA
can more efficiently, in one hearing instead of two hearings, consider as a whole this
rather substantial and consequential matter.
See Attachment 2,to this Exhibit B.
C. The Director's Determination
By letter dated December 14, 2015 (copy attached hereto as Attachment 1,the
"Director's Determination"),the Director of the Department of Community Services responded
to Carrington's request. Although the Director's Determination speaks for itself, it may
reasonably be summarized as a complete denial of Carrington's Request for Determination. In
short,the Director concluded that that"a Special Use Amendment is not warranted at this time
since the primary use of the property does not change, nor does the number of fields increase,"
and that"only a Development Standards Variance will be required for this proposal." See
Attachment 1 to this Exhibit B.
II. THE DIRECTOR'S DETERMINATION SHOULD NOT BE AFFIRMED
BUT INSTEAD SHOULD BE VACATED AND REVERSED
A. Controlling Carmel Zo$ing Ordinance Provisions
Chapter 21 of the Carmel Zoning Ordinance (the"Ordinance")controls Special Uses
and Special Exceptions,which constitute"[P]ermission for a conditional use of land which is
granted because certain conditions will be met." See Ordinance, Chapter 2, Definitions, Special
Exception. In considering any application, Section 21.03 requires the BZA to examine 25 listed
items "as they relate to the proposed Special Use or Special Exception, including, among other
items: topography, zoning, surrounding zoning and land Use,traffic,parking,building height,
bulk and setback, site coverage by building,parking areas, and other structures, landscaping and
Exhibit B—Page 2
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Perimeter Bufferyards, exterior lighting, on-site and off-site surface and subsurface storm water
drainage, and protective restrictions and/or covenants.
In addition, Section 21.04 lists 5 factors on which the BZA must base its approval, as
those factors relate to the 25 items listed in Section 21.03. The 5 factors include, among others:
• "The economic factors related to the proposed Special Use, such as cost/benefit to
the community and its anticipated effect on surrounding property values."
• "The social/neighborhood factors related to the proposed Special Use, such as
compatibility with existing uses... and how the proposed Special Use will effect
(sic) neighborhood integrity. "
• "The adequacy and availability of water, sewage and storm drainage facilities and
police and fire protection." Special Use or Special Exception.
Ordinance, Section 21.04.01 (Emphasis added.)
Section 21.05 of the Ordinance governs expansion of Special Uses and Exceptions. It
states:
Expansion of Approved Special Uses or Special Exceptions.
An approved Special Use or Special Exception may be expanded up to ten percent (10%)
of the approved gross floor area without obtaining further Special Use or Special
Exception approval if the approved use or exception is continued in the expansion, if the
particular building height, bulk setback, yard,parking, etc. requirements are adhered to
and if the proper permits for the expansion, such as an Improvement Location Permit, are
obtained.
Ordinance, Section 21.05 (Emphasis added.)
B. Application of the Controlling Provisions of the Ordinance
Thus, it is absolutely clear that a previously approved Special Use may be expanded
without further Special Use Approval only if
• the Recreation Building constitutes an expansion of 10%or less of the approved gross
floor area of the previously approved Buildings on the CDC Real Estate;
• the approved use or exception is continued in the expansion; and
• the particular building height, bulk, setback, yard,parking, etc.,requirements are
adhered to:
Of course, a"further Special Use Approval"under Section 21.05 is what is commonly referred to
as a"Special Use Amendment" (or"Special Use Amend"),which requires the property owner
applicant to comply with all the same procedures as apply to an original Special Use application-
solely as applied to the expansion of the use, of course. This common-sense interpretation of
Section 21.05 has been applied to expansions of churches,church related-uses and other Special
Uses in Carmel for many years. A Special Use is,as noted above, is"permission for a
conditional use"of a property that is different from the zoning district in which it is locate, and
that permission is premised upon the understanding that"certain conditions will be met." When
Exhibit B—Page 3
a substantial change is proposed affecting the conditions relating to the use, such as the size,
height, location or other characteristics of the improvements on the Special Use property,the
change warrants the same degree of attention as the original Special Use application. And
Section 21.05 is the measuring stick for what constitutes a substantial change.
The Director's Determination states simply that"as Special Use Amendment is not
warranted at this time because the primary use of the property does not change, nor does the
number of fields increase beyond the current operation. " See Attachment 1 to this Exhibit B.
However,the fact that"the approved use... is continued in the expansion" is just one of the
several factors that must be met under Section 21.05 in order to avoid the Special Use
Amendment requirement. And the"number of fields"is irrelevant to the issue. The Director's
Determination ignores two additional explicit factors that must be met: the"10%of gross floor
area"limitation and the adherence to the"particular building height"requirement.
To apply those factors, we must look to certain defined terms in the Ordinance. First,
there is the definition of"Gross Floor Area":
FLOOR AREA, GROSS. The sum of the total horizontal areas of the several
floors of all Buildings on a Lot, measured from the interior faces of exterior walls.
The term Gross Floor Area shall include basement, elevator shafts and stairwells
of each story, floor space used for mechanical equipment with structural
headroom of six (6) feet six(6)inches or more,penthouses, attic space (whether
or not a floor has actually been laid providing headroom of six(6) feet six(6)
inches or more), interior balconies, and mezzanines. (Emphasis added.)
Despite its extraordinary height,the Recreation Building has but one floor, so we also should
look at the definition of"Ground Floor Area":
FLOOR AREA, GROUND. The square foot area of a Building within its
largest outside dimensions computed on a horizontal plane at the ground floor
level, exclusive of open porches, breezeways,terraces, attached garages, and
exterior stairways.
Thus, for purposes of applying Section 21.05,the gross floor area of the proposed Recreation
Building,with dimensions of approximately 400 feet by 250 feet at its ground floor, is 100,000
square feet. The "Lot"for purposes of determining the "Gross Floor Area"of approved existing
Buildings is the CDC Real Estate. In order for the Recreation Building to meet the test of being
10%or less of the Gross Floor Area of approved existing Buildings,those Buildings would have
to have at least 1,000,000 square feet of Gross Floor Area. According to the Property Record
Card for the CDC Real Estate,the existing Improvements consist of one building containing
2,399 square feet, another containing 4,974 square feet, and a"Dugout"containing 290 square
feet, for a total of 7,652 square feet of Gross Floor Area.
In other words, instead of being 10% or less of the existing approved Gross Floor Area,
the proposed Recreation Building is more than 13 times (or 130%) of that area.
Exhibit B—Page 4
The other relevant test under Section 21.05 is whether or not the proposed Recreation
Building"adheres to"the "particular building height"requirement. The Ordinance defines
"Building Height"as follows:
HEIGHT,BUILDING. The vertical distance from the lot ground level to the
highest point of the roof for a flat roof,to the deck line of a mansard roof and to
the mean height between eaves and ridges for gable,hip and gambrel roofs.
Of course, CDC has applied for a Building Height variance from what it concedes is the
applicable 35' Building Height limit, so we know that CDC has no intention of complying with
that prescribed"particular building height" limit. The only question is whether the words
"particular building height requirement" in Section 21.05 are intended to refer to the limit
specified in the Ordinance, or to the height allowed by a variance. The use of the words
"particular"and"adhere"in the context of Section 21.05 clearly suggests that the intended
reference is to the standard requirement specified by the Ordinance. Otherwise, what is the
purpose of the "adherence"requirement? It serves no purpose if it can be avoided by obtaining a
variance from the "particular" (explicit Ordinance)requirements? Two universal rules of
construction of statutes are:
• words not otherwise defined by the statute are to be given there ordinary meanings, and
• a statute must be interpreted so as not to render any words or parts of the statute
meaningless.
In other words, a legislative body is presumed to have chosen each word for a purpose, not with
the idea that some of the words might be ignored. Applying those rules of construction,the very
facts that CDC needs a variance from the 35' Building Height limit is enough to trigger the need
for a Special Use Amendment. A Special Use, by its very nature, is an anomaly in the zoning
district in which it sits. The Ordinance recognizes this by requiring more scrutiny—a Special
Use Amendment—whenever an owner seeks to modify a Special Use in a manner that would
otherwise require only a variance.
C. The Director's Determination is Erroneous
As shown above, a plain reading of Section 21.05 clearly requires CDC to apply for and
obtain a Special Use Amendment for the proposed Recreation Building. How,then, could the
Director have reached the opposite conclusion? The only way that the proposed Recreation
Building possibly"does not warrant"a Special Use Amendment, as stated by the Director, is if
the Recreation Building somehow is not being considered a`Building"at all. As a"non-
Building" it could have no "Floor Area"to compare to the Floor Area of the existing Buildings
for purposes of the 10%test under Section 21.05. That seems to be the unstated implication of
the Director's statement that"the use of the property does not change, nor does the number of
fields increase." The Director's Determination is thus based on the land area devoted to the
existing recreational use, and ignores the facts, among others that the Recreation Building is a
huge Structure that changes the recreation fields from outdoor to indoor, and that it has all the
relevant characteristics and repercussions for the property and surrounding properties as any
other Building. To treat the Recreation Building as anything other than a Building is
inconsistent with the Ordinance, inconsistent with the CDC's own application for a variance
and, most important, would set a very dangerous precedent.
Exhibit B—Page 5
R k
As a starting point, the Ordinance defines a Building as follows:
BUILDING. A Structure having a roof supported by columns or walls, for the
shelter, support, enclosure or protection of persons, animals, chattels, or property.
When separated by party walls, each portion of such a Building shall be
considered a separate Structure. See also STRUCTURE. See also Section 3.04.
And, Section 3.04,referenced above, states"The word `Building' or `Structure' includes any
part thereof, and the word `Building' includes the word `Structure.' The word"Structure" as
such is not defined in the Ordinance. 1 The closest word to Structure defined in the Ordinance
would be"Improvement":
IMPROVEMENT. Any change in Use, any major exterior remodeling of a
Structure or grounds, any addition to a Structure or parking area, or any interior
remodeling of over thirty percent (30%)of the gross square footage of a Structure.
Reading the above definitions together,the question is whether the proposed Recreation Building
can be treated as a"Structure"and an"Improvement"but still not be considered a"Building."
That would require a narrow reading of the definition of"Building"to the effect that the
proposed Recreation Building, as an"air-supported structure,"has a roof that"is not supported
by columns or walls." In other words, it should be treated like a tent, or maybe a carport,
breezeway, lean-to or awning,rather than a Building. Does that comport with common sense?
What would happen to the"roof'of an"air-supported structure" like the Recreation
Building if it had no sides(i.e. no walls)? All the pumped air in the world could not support a
free-floating roof,unconnected to the ground by supporting or connected sides or walls to
confine the air. Is a wall not a wall simply because it slopes to the ground rather than being
perpendicular? Should we treat the entire air-supported structure as a"roof'without supporting
walls or columns? If so, should that be a loophole through which"air-supported structures"
escape being treated as Buildings? Of course not.
The "Perspective/Elevations attached to the CDC Height Variance Application clearly
show that there are sidewalls to the structure. The Recreation Building,just like any other
structure intended to close out the elements—whether supported by air or otherwise—raise all
the same issues as any other Building, including Building size,bulk, height, elevations, and
appearance,utility connections and usage,traffic and, of utmost importance, drainage of the
storm water that will run off from the more than 100,000 square feet of the domed roof. The
Recreation Building is to be heated and ventilated—for the"enclosure or protection of persons."
It will not have a natural grass surface as in the case of the outdoor fields, but instead it will have
some type of floor with an artificial surface. Ironically, an exhibit to the CDC's application is
labeled"Floor Plan."
Clearly,the proposed Recreation Building changes the use from outdoor to indoor. That
is both relevant and of utmost importance. Several sections of the Ordinance treat indoor and
1 The definitions include only the following,which is not relevant for our purposes:
"STRUCTURE,TYPE OF. Refers to the physical arrangement of Dwelling Units such as a
detached Single-family Dwelling, cluster Single-family Dwelling, duplex or Two-family
Dwelling,Row House or Multiple-family Dwelling. a
Exhibit B—Page 6
I l
outdoor uses quite differently(e.g., a Greenhouse vs. Plant Nursery; Commercial Recreational
Facility, Indoor vs. Commercial Recreational Facility, Outdoor; Indoor Theatre vs. Outdoor
Theatre; Storage/Warehouse, Indoor vs. Storage/Warehouse, Outdoor).
The very fact that the CDC is being required to apply for a Building Height variance
belies any notion that the Recreation Building is not a Building. The Ordinance does not have a
height limitation that applies to "Structures"or"Improvements"that are not Buildings. CDC
has applied for variance from the"Building Height"requirement of 35 feet. If the Recreation
Building is not a Building,then why is CDC applying for a Building Height variance?
The ultimate issue is the intent of the Ordinance. Are the terms"gross floor area" and
"building" as used in Section 21.05 of the Ordinance intended to treat air-supported structures as
something different from other or traditional buildings? Such a conclusion would set a
dangerous precedent. All properties that now have Special Use approvals could follow CDC's
lead and construct air-supported structures with limited, if any, approval requirements. Nor
could such an interpretation be limited to Special Uses. If an air-supported structure is not a
Building under Chapter 21,then it is not a Building for purposes of any other Use under the
Ordinance.
D. The Development Standards Variance Procedure is
Inadequate for the Proposed Recreation Building
The proposed Recreation Building is a huge, overarching behemoth of a structure. If
constructed, it will be one of the highest and largest buildings in Cannel. Contrary to the
allegations in the CDC Height Variance Application,the woods to the south of the structure will
not shield the massive structure from the view of the Carrington Woods Neighborhood. To begin
with,the woods at the south end of the CDC Real Estate are 10' to 15' below the level of the
playing field. The trees do not reach high enough to shield the top of a structure that will be
close to 90 feet higher than the backyards in Carrington Woods. When the trees are bare, which
is nearly half of each year,the enormous bright white dome will dominate the skyline. Aside
from its incompatibility with the surrounding neighborhood,there can be no doubt that a 75' tall
domelike structure with an impervious surface area exceeding 100,000 square feet will
enormously increase storm water run-off from the CDC Real Estate. The back yards in
Carrington Woods already flood when heavy rains occur, a situation aggravated over the years by
changes, additions and other improvements to the outdoor fields made by CDC (apparently
without any BZA, TAC or other review) since CDC obtained its original Special Use approval.
If,to quote the Director, "only a Development Standards Variance will be required for
this Project,the scope of review by the BZA would be limited dramatically compared to the
scope of review required for a Special Use Amendment. In sharp contrast to the 25 listed items
to be considered and 5 factors required to be determined for a Special Use Amendment(as
discussed above), a Development Standards Variance limits the BZA's ultimate consideration to
just 3 factors:
1. The approval will not be injurious to the public health, safety, morals and general
welfare of the community;
Exhibit B—Page 7
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; and
3. The strict application of the terms of the Zoning Ordinance will result in practical
difficulties in use of the property.
These limited considerations for a Development Standards Variance do not even begin to address
the scope of the many potentially adverse consequences of construction of the proposed
Recreation Building. All of those potential consequences deserve a thorough review by the BZA
and the TAC. If anything,the Recreation Building is such a dramatic departure from the existing
use of the CDC Real Estate that it warrants an even higher degree of scrutiny than was given to
the original application for a Special Use approved over 35 years ago.
III. CONCLUSION
For all of the reasons stated above,the BZA should vacate and reverse the Directors
Determination that the proposed Recreation Building does not warrant a Special Use Amendment
and requires only a Development Standards Variance for its height. The BZA should determine
and instruct CDC that the proposed Recreation Building is required to meet the same standards
under the Ordinance as would apply to any other new Building. In other words, pursuant to
Section 21.05 of the Ordinance, CDC must apply for and obtain a Special Use Amendment in
order to go forward with its proposed Recreation Building. To treat the proposed Recreation
Building, because it is an"air-supported structure,"as different from any other new Building
flies in the face of both the clear intent and the specific language of the Ordinance. A rose by
any other name is a rose. So, too, a building by any other name is a Building.
Exhibit B—Page 8
CITY OF CARMEL
JAMES B3RAINARI), MAYOR
December 14, 2015
Rory O'Bryan
Harrison Moberly, LLP
10 West Market Street,Suite 700
Indianapolis, IN 46204
RE: Carmel Dad's Club—Docket No. 15110003 V
Dear Mr.O'Bryan:
This is in response to your letter dated 24 November 2015 to the Carmel Board of Zoning Appeals (BZA),
and is intended to clarify the position of the Department of Community Services(DOCS)on the
referenced Docket number and the issues you have asked about:
1. The DOCS has communicated to Carmel Dad's Club representatives a cutoff date of Monday,
January 14, 2016 to have issues ironed out with adjoining property owners. If Dad's Club is not able
to achieve that,their petition will be bumped to the full BZA meeting on Monday,January 25, 2015.
2. While I respect your view on this matter, my assessment is that a Special Use Amendment is not
warranted at this time since the primary use of the property does not change, nor does the number
of fields increase beyond the current operation. The BZA's action on the height variance will
ultimately determine the appropriateness of the proposal and compatibility of the improvement
with surrounding property.
3. The Carmel Dad's Club previously made proper legal notice for the Development Standards Variance
hearing originally slated for November 23, 2015. That hearing was postponed and notice made to
the full board,as part of the official record,that the hearing was being rescheduled to January 25,
2015. While no additional public notice will be necessary, the City will keep you and the neighbors
updated as to the January 25 BZA hearing date.
4. There are times a project or petition not warrant full Technical Advisory Committee (TAC) review. In
those situations, all of the TAC members are sent plans with the understanding and expectation that
issues will be communicated and resolved between the petitioner and the various agencies and
entities. The DOCS is made aware when issues are outstanding or not ready to be resolved. In
those instances where a full TAC review is not warranted, DOCS coordinates a focused review with
key departments, primarily the City Engineer and Fire Department, to ensure that technical and life-
safety issues are identified, analyzed and resolved. The review process in Carmel is built around
communication and collaboration between Departments; and permit approvals or board of works
approvals are often held until engineering or public safety issues are resolved.
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Rory O'Bryan page 2
RE: Carmel Dad's Club—Docket No. 15110003 V
It is clear this petition will require stormwater management as one of the primary issues-as is
always the case when a proposed improvement involves the introduction of impervious surface. I
am confident the technical review of the submittal by City departments, with input by adjoining
property owners, will result in a thorough analysis of stormwater and other key issues; so that the
result will be an improvement that, if approved by the BZA, will be an asset to this community.
5. As addressed in#2 above,only a Development Standards Variance will be required for this proposal.
It is my hope this letter provides you with a better understanding and addresses any remaining
concerns. Should you find sufficient fault in any of the above that you wish to appeal directly to the
BZA, you may do so within 30 days from date of this letter, pursuant to Chapter 30.0 of the Carmel
Zoning Ordinance.
If you have questions or wish to discuss further any of the above, please do not hesitate to contact me,
via telephone at 317 571 2422,or email;mhollibaugh@carmel.in.gov.
Yours truly,
/ . 1
;�
Michael Hollibaug '/
Director, Dept. of ommunity Services
Copy: file
John Molitor
Paul Reis
R
HARRISON "La MOBERLY, .Y
ATTORNEYS
10• WEST MARKET STREET HAMILTON COUNTY OFFICE:
Rory O'Bryan SUITE 700 11611 North Meridian Street,suite 150
Partner INDIANAPOLIS,INDIANA 46204 C(31a11IIN-4511 46032
Direct(317)574-6057 FAX(317)639-9565 FAX(317)574-6055
E-mail:robryan@harrisonmoberly.com
November 24,2015
Cannel Clay Board of Zoning Appeals
c/o Maggie Crediford,Administrative Assistant
Cannel City Hall
One Civic Square
Carmel,IN 46032
Re: Development Standards Variance Docket No. 15110003 V
Cannel Dad's Club
5459 E.Main Street,Carmel,iN 46033
Project Name: Air Supported Structure
Ladies and Gentlemen:
I and my law firm have been engaged to represent the interests of several owners of
homes in the Carrington Woods subdivision,located immediately south of the land owned by the
Carmel Dad's Club(`.`CDC")on which the proposed Air Supported Structure would be located.
They are very concerned about the potential impact on their neighborhood of the possible
erection of a 100,000 square foot structure rising to a height of 74 feet. Your decision to remove
the hearing from the November 23,2015 hearing officer agenda was greatly appreciated and, I
believe,entirely appropriate,in order to permit consideration by the full Board of Zoning
Appeals("BZA")and to allow affected residents adequate time to study the characteristics and
evaluate the possible consequences of introducing this very unusual building to the CDC
landscape.
Please confirm our understanding that the matter will be moved to the agenda for the full
BZA meeting on January 26,2015,rather than being heard by a single Heating Officer. With all
due respect,not only does this matter warrant a full BZA hearing,but it simply would be unfair
to burden a single Hearing Officer with consideration of this significant and consequential matter
under the Alternate Procedures allowed by Section 30.08 of the Cannel Zoning Ordinance and
Article IX of the BZA Rules of Procedure.
More important,I and my clients believe that this project requires the CDC to file an
application and notice for a Special Use or Exception Amendment("Special Use Amend")in
.addition to their variance application.The CDC's land is in an R-1 Zoning District and its
current recreational use is permitted by a Special Exception,which we understand is now
processed and administered like a Special Use. Under Section 21.03 of the Zoning Ordinance,
the BZA is required to examine 25 specific items before approving a Special Exception or a
Carmel Board of Zoning Appeals
November 24,2015
Page 2
Special Use—the virtual equivalent of what is required for DP/ADLS approval. For that reason,
the Planning Department and the BZA normally and rightfully require a Special Use Amend for
any significant expansion, alteration,or addition to improvements located on Special Use or
Exception property.
This historical Planning Department/BZA Special Use Amend policy is mandated by
Section 21.05 of the Ordinance,which states that a Special Use or Exception Expansion of"up to
ten percent(10%)of the gross approved floor area"will not require a Special Use or Special
Exception approval if,among other requirements,"theparticular building height,bulk,setback,
yard,parking, etc. requirements are adhered to.... (Emphasis added.) The CDC is seeking a
height variance of at least 39 feet—more than double the"particular building height"
requirement. In addition,the 100,000 square foot structure proposed is at least twice the size of
the floor area of existing improvements on the property. Therefore,it is clear that the CDC's
proposed plan for this air supported structure requires a Special Use Amend.
The requirement of a Special Use Amend allows the BZA to consider whether the special
use,as expanded,remains compatible with its underlying,residential zoning. Moreover,a
Special Use Amend requires compliance with the Technical Advisory Committee("TAC")
process in advance of the hearing on the Special Use Amend. This,in turn,requires the
petitioner to submit plans with sufficient detail for the County Surveyor, City Engineer and other
TAC representatives to evaluate the impact of the project with respect to items listed in Section
21.03,including storm drainage(and compliance with the new Cannel Storm Water Ordinance),
surrounding zoning and land use,building height, bulk and setbacks,landscaping and buffer
yards,utilities,and so on. A thorough TAC review prior to approval of the CDC's proposed
structure is crucial,considering the serious drainage and aesthetic issues likely to arise from the
proposed Air Supported Structure. Sheet drainage from the fields as they currently exist has
caused flooding in the past in times of heavy rain. The runoff-from a sloped fabric roofed
domelike structure will undoubtedly be much more problematic.
For the reasons stated above,the on behalf of my clients,I request confirmation of each
of the following:
1. That the requested variance will be heard by the full BZA at its hearing scheduled for
6:00 PM on Tuesday,January 26,2016,or at a subsequent hearing of the full BZA;
2. That,in addition to and independent of its requested height variance,the CDC also be
required to properly notice and obtain a determination on an application for approval
of a Special Use Amend in order for the CDC to erect the proposed Air Supported
Structure;
3. That the CDC project not be allowed to proceed without compliance with all
applicable notice and other requirements for a Special Use Amend,including
thorough TAC review;
4. That the CDC project be placed on the TAC agenda for a regularly scheduled TAC
meeting occurring before the BZA hearing; and
Carmel Board of Zoning Appeals
November 24,2015
Page 3
5. That the height variance and the Special Use Amend applications not be bifurcated,
but instead both will be heard by the full BZA on the same evening so that the BZA
can more efficiently,in one hearing instead of two hearings,consider as a whole this
rather substantial and consequential matter.
Thank you for taking the time to consider this letter on behalf of residents of Carrington
Woods. Please respond in writing to this letter, specifically addressing requests 1-5 set forth
above and don't hesitate to call or email with any questions or comments. Your assistance is
much appreciated.
Yours very truly, -
HARRISON &MOBERLY, LLP
f
B
Rory, i, Bryan
cc: John Molitor
Mark Vollbrecht
Doug Deck