HomeMy WebLinkAboutExplanation for Appeal of Admin Determination S
I T
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" at the
south end of its 36.63 acre property at 5459 E. Main Street, Carmel, Indiana, commonly known
as the Badger Fields (the "CDC Real Estate"),which is in an S-1 Residence District, for which
Section 5.04.01 of the Cannel Zoning Ordinance allows a maximum building height of 35 feet
(the"CDC Height Variance Application"). 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 as "Floor Plan" shows that
the enclosed floor area of the air-supported building(the "Recreation Building")will be
approximately 400 feet long and 250 feet wide, or 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,the Carrington residents (collectively"Carrington" or
"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
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 Zoning 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
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%)
gf 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
r k
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
A 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
� 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 Carmel. 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