HomeMy WebLinkAboutRemonstrator's Supplemental Opposition Brief To The BZA 02-19-21REMONSTRATORS’ SUPPLEMENTAL SUBMISSION IN
OPPOSITION TO PETITION FOR USE VARIANCE (NO. PZ-2020-00229 UV)
211 FIRST STREET SW (THE GOAT)
This submission is respectfully submitted on behalf of Remonstrators Cohen Investments
Partnership, The Railyard Apartments, and The Old Towne Apartments (Railyard and Old
Towne are managed by Barrett & Stokely Management, LLC) (collectively, the
“Remonstrators”) as a supplement to the Remonstrators’ prior submission to address issues
raised by the updated site plan and design recently submitted by The GOAT Tavern and
information included in the Staff Report dated February 17, 2021.
The GOAT’s Updated Site Plan and Design Only Make Matters Worse
The proposed new site plan and structural design do not address the primary concerns
created by The GOAT operations since it opened in August of 2020. Most of the problems arose
from the outdoor activities and were noise related. The concerns came from residents at both
The Railyard to the south, Old Town Apartments to the east, and residential property owners to
the west. This new structure adds considerably more east facing outdoor area including a
breezeway (aluminum pergola) with three-season plastic walls that can be opened when the
weather is conducive. There is an additional bar to the north which also faces east, directly
towards a row of townhomes and apartment flats with only the open Monon as a buffer. With a
capacity exceeding 300 patrons, coupled with known operational issues, this is a recipe for even
more significant, and longer term, problems.
The updated plan, with so much outdoor operations, is vastly different from the
whiskey/cigar bar concept originally approved by the Council in connection with the liquor
license. The original concept was said to have a capacity of 100+ people. These new plans add
a limited amount of indoor area. It would appear that roughly one-third of the new area under
roof is an exterior patio. There is what looks to be a pass through to the outside, the original
concept had a bar. If there is indeed a bar in this area, all of the newly created interior space
would become part of that bar leaving no additional interior seating space.
Moreover, the new concept has no buffer from the residential uses around it. The
proposed amount of new open air bar frontage, in addition to the sand pit make this an outdoor
oriented beer garden. The only true interior space can only accommodate 65 people. The rest of
the 300 or so capacity will be outside. This much outdoor activity directly across from, and
surrounded by, residential use just creates even more noise problems than there were last
summer.
Other nearby restaurants and taverns located east of the Monon Trail (and away from
single family residences (e.g., Sun King, Fork & Ale)) have outdoor eating areas incidental to
their indoor operations, whereas, the GOAT’s operations, located directly adjacent to single
family residential properties, is just the opposite. It is a primarily outdoor focused tavern, which
is an entirely inappropriate use adjacent to residential properties.
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Issues Discussed In The Staff Report Further Establish Why
The GOAT Cannot Meet Even One Of The Statutory Findings Of Fact
The GOAT cannot meet even one of the five statutorily required findings of fact for this
use variance to be approved. Evidence the Remonstrators previously put forth (e.g., photos and
video of The GOAT patrons urinating and vomiting on the Cohen’s property, letters and
petitions from neighbors stating their concerns, over 300 pages of police runs to The GOAT,
etc.) proves that The GOAT' cannot establish that the grant of this variance will not be contrary
to the public interest (Required Finding No. 1) and that it will not be injurious to the public
health, safety, morals and general welfare of the community (Required Finding No. 2).
Written statements from the Cohens and Barrett & Stokely, with specific examples of the
negative impacts The GOAT’s operations have had on their properties, prove that The GOAT
cannot establish that the use or value of the area adjacent to the subject property will not be
substantially affected in any adverse manner (Required Finding No. 3).
And there is certainly no evidence that the need for the variance arises from a natural
condition peculiar to the subject property (Required Finding No. 4). To this point, if given more
recent development in the surrounding area, this property is more appropriate for a commercial
use, then it can go through the rezoning process. But that is not what is before this Board. The
only use before this Board is this particular petitioner’s proposed tavern use—a use which is a
known quantity. There is no need to speculate. The GOAT is asking for a variance to operate
with an infamous track record at this location. This establishment was open on an even smaller
scale last summer and the result took a toll on City resources as well as the adjacent neighbors.
The Commitments The GOAT is operating under today are a direct result of ownership’s
inability to work within the confines of a mixed use area. The way the business operated last
fall is direct evidence of how it will operate in the future.
Required Finding No. 5 requires the petitioner to establish that the granting of the
variance “does not substantially interfere with the Carmel Comprehensive Plan.” The Staff
Report, at p. 16, references the Comprehensive Plan’s Adjacent Land Classification Table. Even
a “Conditional Fit” (C) requires “sensitivity to the adjacent land classification.” The
predominantly outdoor bar, in excess of 300 patrons, is not sensitive to the adjacent residential
properties.
It is important to note that nearly three full pages of the Staff Report are dedicated to The
GOAT’s proposed commitments to control its operations. Presumably to establish that, with
these commitments, The GOAT will be a benefit to the community and will not negatively
impact surrounding property owners. But even after these 2020 commitments were put in place,
The GOAT violated them.
Nonetheless, Staff has indicated that its positive recommendation for this petition is
conditioned upon The GOAT’s agreement to all of the concerns raised by staff, agreement to the
proposed commitments with staff’s revisions, and a time limit of one year. Even more, the City
has recently gone to the trouble of enacting a noise ordinance and urination ordinance to
seemingly control The GOAT’s operations. The City’s public agencies, including the Carmel
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Police Department and code enforcement officials have been called to assist with controlling The
GOAT’s operations since it opened in the summer of 2020. Yet The GOAT still has run afoul of
these extraordinary efforts.
The GOAT is now asking the Board of Zoning Appeals to, essentially, condone all of
these efforts, and to ratify a list of commitments that simply cannot be enforced in a manner that
sufficiently controls The GOAT’s activities. The City, and its public safety agencies and
officials, should not be required to take on this added responsibility.
The Remonstrators respectfully request the Board deny The GOAT’s request for a
variance of use.
Respectfully submitted,
/s/ Michael Rabinowitch
Michael Rabinowitch, #18117-49
Misha.Rabinowitch@Dinsmore.com
Attorney for Remonstrators Cohen Investments
Partnership, Carmel Midtown Building
Corporation, and Old Town Associates, LLC
Dinsmore & Shohl LLP
211 North Pennsylvania Street
One Indiana Square, Suite 1800
Indianapolis, IN 46204-4208
Tel: (317) 639-6151
Fax: (317) 639-6444