HomeMy WebLinkAboutReasons of SupportAPPENDIX 1
In the Matter of CARMEL BOARD OF APPEAL ZONING
Development Standards Variance Application
Subject Property: 17-13-03-00-03-013.000
Reasons supporting why the BZA should grant the Development Standards Variance
The variance is being sought for two reasons: 1. Privacy; and 2. Aesthetics.
Background to the Request
On August 8, 2012 the applicant purchased the home at 10748 Royal Drive (“Home”) on the
Subject Property. As can be seen by the Hamilton County Auditor ’s Notification List and
Adjoiner Notification Map, the adjoining parcel No 12 (“Johnson’s”) adjoins the entire southern
border of the Subject Property. Andrew and Patricia Johnson were our neighbors and they were
the property owners. At the time of our purchase that southern border was lined with numerous
40 foot Colorado Spruce trees. At that time it was not possible to see the house on the
Johnson’s property. Please see Exhibits 1, 2 and 3 which give a representative view of how
private our property was, and how unnoticeable the Johnson’s property and house were.
Exhibit 1 is a photo showing what the tree-lined border looked like in Fall of 2019.
Exhibit 2 shows what it looked like in the winter of 2017.
Exhibit 3 shows what the lined property looked like on Google Earth (image captured Sept 25,
2021).
Without any notice, on or about July 15th, 2021 a crew appeared on the Johnson’s property and
started to cut down the Colorado Spruce trees. A day later joint owner of the Home and Subject
Property, Brenda Stewart-Rudolph, was retrieving recycle bins when a white vehicle stopped
and a man who identified himself as “Jay Roby” shouted out asking who she was, announcing
he was the new neighbour and that they were cutting down the trees, there would be more trees
planted and finished shouting that “They’re all coming down” in other words all of the Colorado
Spruce trees would be cut down, and then drove into the drive of the Johnson’s property. This
was our first interaction with Mr. Roby.
It took almost 7 weeks, but by then only two of the trees were left along the relevant portion of
the southern border. Please see Exhibits 4, 5, and 6 to see the effect. An examination of Exhibit
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6 demonstrates how significant these trees were in providing privacy in comparison to the fence
which is now standing in the shadow of the two remaining trees (which will apparently also be
cut down).
Once the line of Colorado Spruce trees was gone it became apparent just how much privacy
they afforded. It also became apparent that the Johnson’s house was elevated above our entire
property and in particular the property to the immediate north of the southern boundary of the
Subject Property. In other words, when walking in our yard we realized we were looking up at
the Johnson’s house, and they were able to look down into our yard. We had lost all of our
privacy.
As mentioned, Mr. Roby who announced “They are all coming down” has stated he is our
neighbour (we understand he is the husband of Ashley Johnson the home/property owner ’s
daughter). Based on information from the Hamilton County Auditor Andrew and Patricia
Johnson’s are still the property owners. We did not realize that our subdivision is zoned for
rentals. In any event, Mr. Roby advised that he was going to replace the trees. He said he
would be planting lots of trees. Mr. Roby has planted trees along the property line. Exhibit 7
shows the trees which have been planted. From a review of all of Exhibit’s 10, 11, 12 and 13 it
is easy to see that the fence, at just 6 feet without the Lattice Topper, is taller than the trees
which have been planted. It will take decades for those trees to afford any privacy to anyone.
The Fence Permit Application
Initially the applicant sought to build an eight (8) or ten (10) foot fence. While enquiring at the
City of Carmel the applicant reviewed the City Guidances on Fences. The Guidance documents
(older and newer versions) as well as the UDO suggested that a fence of any height could be
built on a property larger than 3 acres. Please see Exhibit 8 which is the newer City Guidance.
The “Quick Facts” portion leads to this conclusion. After discussion with the City and a
subsequent interpretation provided to “Exempted Uses” as set out in UDO 5.09 FW-01 A
(Permit Required) it turned out that the Quick Facts were not actually Facts. In any event it was
agreed that the permit would be for a 6 foot fence. Despite this, the City initially issued a Permit
for an 8 or 10 foot fence. See Exhibit 9 which is a permit issued by the City for an 8 or 10 foot
fence. The applicant pointed this out to the City and was ultimately issued a permit (same
permit number) for a 6 foot fence.
A survey was conducted by Stoppelwerth at the request of the applicant and the Subject
Property boundary re-established. A 6 foot fence was built ½ foot inside the property line for the
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applicant by Draper Fencing. Draper Fencing advised that if a trellis is made to be removable
and placed on top of the fence an additional 1 foot (“Trellis Topper”) could be added to the 6 foot
fence without concern. We agreed to have the Trellis Topper added. It was during the
construction of the Trellis Topper that someone at the Johnson’s house contacted the City and
caused an inspector to attend. Inspector Jocelyn Kass attended and advised that the Trellis
Topper exceeded the City regulations and Fence Permit and would require a variance if it was to
be allowed. The applicant caused Draper Fencing to immediately halt work on the Trellis
Topper and we sought more information about how to apply for a variance, which has resulted in
the present application.
It is fortuitous that construction was halted when it was. It is possible to easily see the effect of
the Trellis Topper because only the bare skeleton of the Trellis is in place. A review of Exhibits
10, 11, and 12 show that from a “line-of-site” perspective, a resident at the Johnson’s house is
minimally affected by the full topper height. It is only when we are in the yard working on our
gardens on the property close to the fence that we have some privacy. As can be seen in
Exhibit 11 and 12 the Trellis Topper does augment this privacy. However, given the lines of
sight based on the elevation of the Johnson’s house, the net effect of the Trellis Topper on the
fence is not significant. Indeed the net effect of the entire 7 foot fence amounts to only one or
two feet when viewed from the front step of the Johnson’s house. To say this differently, for the
applicant, while in the yard, there is enhanced privacy, but for the Johnson property, there is
only a minimal effect. As well, given that the two adjoining properties are approximately 5 acres
each, the requested 1 foot Trellis Topper is not very significant. Indeed once you move away
from the fence on the border, the addition is not very noticeable - see Exhibits 12 and 13.
However, when we are in that yard working on our gardens the extra foot does afford more
privacy. Comparing Exhibit 1 (“Before”) and Exhibit 14 (“After”) shows that some privacy has
been restored. The Trellis Topper will help.
The other basis for the Trellis Topper is aesthetics. As can be seen in Exhibit 15, the fence style
is just more attractive from both perspectives with the Trellis Topper versus being without it.
Finally, we have been advised that the City of Carmel Planning Department is supportive of this
request for a variance.
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