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HomeMy WebLinkAboutMinutes BZA 08-25-08 u u u Carmel Board of Zoning Appeals August 25, 2008 Gl. Report on 1993 Use Variance status - UV-35-93 Discussion was held regarding Item G1. UV-35-93. Mr. Molitor stated he had given copies of his letter to the Mylins Counsel to Mr. Hollibaugh for review, along with the Commitments to be executed. In addition there was a Department Report. He recommended the Board make a motion to conduct a Public Hearing on the matter. Mrs. Torres asked ifthe Mylins were present. Mr. Dierckman moved to conduct a Public Hearing for UV-35-93. The motion was seconded by Mr. Hawkins and APPROVED 5-0. Mr. Broach asked if the neighbors had seen the commitments. Had the Mylins already agreed to the cormnitments at the Department's request? Mr. Molitor stated in his opinion and the Department's opinion these commitments reflect the conditions that were imposed by the Board in 1993. However, there were no written commitments . signed or recorded at that time. All they have gone on in the last fifteen years are the recollections of what the Board had imposed at that time. At this point they have been reduced to a written form exactly as the conditions the Board had imposed in 1993. The public can make comments as to whether the commitments are adequate at this point. Mr. Broach asked if there was anything additional or was this just reflective of the 1993 agreement. Before the public got an opportunity to cormnent, he wanted them to know what they were commenting about. Mr. Molitor summarized the commitments. "The owners acknowledged that the Board granted them a variance of use on or about August 23, 1993 which allows them to utilize the real estate, in particular the outdoor swimming pool located on the real estate, to conduct private swimming lessons. As a condition of the Board's approval and in accordance with Indiana Code 36-7-4-9-18.5 the owners commit that all lessons will be conducted between the hours of9:00 am and 12:30 pm and during a period of not more than nine consecutiv~ weeks each season between the dates of May 22 and August 15. The owners further commit that they shall instruct all persons with whom they do business that they shall comply with all parking and traffic regulations of the City of Carmel." The commitments go ob and indicate that they are binding on the owners and subsequent owners of the real estate if the real estate would ever be sold. The Staffis authorized to record the commitments with the County Recorder. It gives the Board formal authority to enforce the commitments, as well as the Department without the Board's approval. He thought the Department's approach was to get the Board's input, feedback and direction before taking action on its own. The original commitments were signed earlier in the day. They had not been recorded, but were in suitable form for recordation. Dave Coots represented the Petitioner. The commitments presented by Mr. Molitor had been signed and encumbered the property. They were premised upon the use variance that was granted in 1993. Since that time there has been considerable variation over the summers from year to year as to the length oflessons. It grew out of the fact that the school became more and more popular with more students. Mr. and Mrs. Mylin are Cannel teachers and use their summers for swim instructions. They have expanded the school. When it was brought to their attention hy Mr. Brennan at the behest of Page 13 of 17 Carmel Board of Zoning Appeals August 25, 2008 adjoining property owners, an agreement was worked out with the City. The agreement would allow U. ~.. the Mylins to fulfill the commitments they had made to students and also the commitments they had made in 1993 would be acknowledged and reverted to. Those are the commitments that are ready to be recorded after approval by the Board. Members of the public were invited to speak in favor or opposition to the commitments. Remonstrance: Jay Craig, 22 Circle Drive, across the street from the Mylins. An aerial of the area was shown. Fifteen years ago they had supported the Mylins and their request to give swimming lessons, because of the limited hours, number of students and just three instructors. They had been amazed at the Mylins success. They have grown a few lessons into a major business without regard for the impact on the neighborhood. The neighbors have not been able to enjoy their suIirrners for many years. With the success ofthe Olympics there is no doubt they will be able to expand their lessons even further by going to another pool in the neighborhood. All the adjacent property owners were at this meeting because the Mylins refuse to recognize that the business is no longer a small summer sideline business for teachers. As a small business owner he knew how hard it was for someone to make the commitment to move to a new facility that can accommodate an increased clientele. They are sorry they have been forced to ask the Board to enforce the commitments and revoke the variance. Robert Lennon, 26 Circle Drive, across the street. He indicated the street on the aerial. It has become a blind comer with overgrown bushes in the City easement along the Mylin's property. Their commercial swimming operation runs seven day a week, starting at 8:00 am and ending at lJ approximately 4:30 pm, sometimes 5:30 pm. The street has become their parking lot with a minimum of five cars and up to eight to twelve cars. The Mylins place 15 to 18 orange cones along their property line all summer. They had permission from one neighbor to park one student's car in their parking lot. Now that neighbor's lot has five or six cars ata time. There is a furniture refinishing business at the end of the street. Customers park there and walk down the street. They also parkin front of his house and walk across the Mylin's property to an adjacent swimming pool that does not have a variance.. They congregate in the street for up to 30 minutes after lessons. The lessons ate supposed tobe 30 minutes long, so every thirty minutes there is another eight to twelve cars coming in. When he tries to get into his own driveway, he is treated rudely by the customers. They change their clothing in the streets. There are five to twelve cars at a time with two to three kids in each car. This goes on all day long. There are kids screaming in the pool all day long. The swimming instructions can be heard all the way back to the Mcnon. This is a major commercial swimming operation; it is not a school. It is a big money machine. There is no one policing this operation. No one comes by at 12:30 pm seven days a week and tells them they have to stop. Carmel Police have been called for parking violations. The cars park in front of the fire hydrant. One afternoon two police officers came through and there were four or five cars. About ten minutes later the fire hydrant was blocked. He has not seen one ticket written. It was completely out of control. They do not abide by the set rules. There is no one to call at 12:30 pm, 2:00 pm or 8:30 am to report violations. They will be back next summer doing what they want, when they want and however they want. The neighborhood is tired of being bullied. He wondered about liability. He cannot back out of his driveway because cars are blocking it. Parents pull up and let the kids out who run across the street. It is a narrow street. His trash has not been picked up several times U this summer because the trash truck cannot get through. His yard has ruts from the UPS truck, trash truck, utility trucks etc. going through the lawn to get around the cars. Should he take his trash to City . .u . Hall or to the Mylin's when the trash truck cannot get tltrough? Do the neighbors need to get umbrella policies to take care of the liability? He felt the City had some liability because they have allowed the Page 14 of17 u (: U u Carmel Board of Zoning Appeals August 25,2008 Mylins to ignore the variance. There was no one to call to get this stopped. Andrea Kester. 24 Circle, adjacent to the pool area. She had a copy of the Mylin's application for the variance in 1993. They very explicitly state that their hours will be 9:00 am to 12:30 pm, only eight to nine weeks, only Mr. and Mrs. Mylin would teach and possibly one other certified instructor. She also had a copy of the minutes from the hearing with Mr. Coots confirming these conditions. Also there would be three students maximum, and parking would be in the Mylin's driveway. These were the conditions established in 1993. They agreed that teaching children to swim was a good thing. No one wants a child to drown. Even though their children knew how to swim, they sent them to the Mylin's for lessons. As the closest neighbor to the pool, they felt they could live with the conditions stipulated by the Mylins. But then the Mylins turned their good intentions ofteaching children to swim into a big business by operating outside the conditions of their variance. This affected the safety of their neighborhood and disrupted their lives. That was when it became obvious that the Mylin's business needed to be removed from their residential neighborhood. The Mylins started teaching on Saturdays and Sundays and expanded their business hours from 8:00 am to 5:00 pm, they increased the number of instructors, they increased the number of students, they increased the number of weeks of instruction and this year they even increased the number of pools they used. That caused the neighbors to be at the mercy of the Mylin swimming schedule all summer. Ever since the Mylins started this business, the neighbors never have a quiet holiday. They teach on all those days. Kids are constaiJ.tly crying and screaming and the instructors are yelling over them. It makes it unbearable to outside iiI their yard. Over the years when they have had outside work done, they couid not stand in the driveway to talk to contractors because of the noise coming from the poo1. They have to have those discussions inside. If the Mylins had adhered to the hours of operation, they would schedule appointments before 9:00 am or after 12:30 pm. The Mylin's business clients attest to the wonderful job they are doing teaching children to swim. But these clients are only affected by the noise, traffic congestion and parking issues for 30 minutes a day for five days. How many of them would tolerate this activity in their neighborhood all day, every day, all summer? The Mylins have ignored multiple warnings from the City and an appeal from the neighbors. They have made promises to comply with the variance conditions, but they have continued to demonstrate they have no intention to comply with their variance conditions. On March 1 st at a neighborhood birthday luncheon, Linda Mylin had said they would only teach until noon. But when the lessons started in May, they ran from 8:00 am until 5 :00 pm. Their actions indicate they care only about the money the business generates and are oblivious to the hardships created for the neighborhood. This was. why the neighbors felt the Mylins will never comply with the conditions of their existing variance. The business needs to be moved out afthe neighborhood and into a facility that can better accommodate it. The only way to insure the business was moved out of Circle Drive was to revoke the 1993 Valiance. They felt if the Mylins were given another chance to honor the variance conditions, they will overstep the conditions again next May. She gave the copy ofthe variance application to the Department to be copied. Alice Craig, 22 Circle Drive. She showed a layout ofthe subdivision of29 homes. She indicated all the neighbors who were present for this hearing. The owner of the driveway being used for parking is a 95-year old gentleman who is in the hospitaL A residential neighborhood should not be impacted by a business. The Mylins have taken over this neighborhood. Rebuttal: Mr. Coots stated what they had heard at this hearing pointed to the execution and entry of the commitments that are recordable and do have more of an enforcement mechanism, He was aware of one letter last year sent to the Mylins about the extended hours of operation. There was one letter in Page 15 of 17 Carmel Board of Zoning Appeals Augilst 25,2008 June of this year that brought this matter before the Board at this hearing. u The Department did not give a report. Mr. Broach asked if the Board could revoke avariance. Mr. Molitor stated they could not revoke a variance granted fifteen years ago on their own initiative. He would prefer to discuss in Executive Session the Board's authority to initiate litigation with regard to enforcement ofthe conditions that were imposed fifteen years ago. Mr. Broach pointed out the commitments covered the time period, May 22 to August 15 and it covers the time during the day, 9:00 am to J 2:30 pm. But it did not cover the number of instructors and the number of students for intensity. He wondered why that was not incorporated .into the commitments. Mrs. Torres stated the original variance did cover the intensity. Mr. Hawkins wanted a copy of the original application and minutes for that reason. If the original stated three students and parking in the driveway, he would like to see that incorporated into the new commitments. Mr. Broach felt another disturbing issue to him and possibly the other Board members was the fact that they adopt commitments and no one enforces them. There are City employees in the Department whose job is to enforce these commitments. There should be a better mechanism, so that the 0- commitments the Board insists on are adhered to by the Petitioner. . Mr. Dierckman stated there is not enough Staff to enforce these commitments all over the City. They need to approve things that can be enforced. They cannot revoke the variance, so what can they do other than sue on the City's behalf? Mr. Hollibaugh stated the Department had talked about putting a time limit on any Use Variance. Then the Petitioner would have to come back to the Board. They could check to make sure that everything was being conducted according to the variance qr commitments. They do have to rely a lot on the public to let the City know about violations. When that happens the Department does the best they can. They work with the Petitioner to either come back to the Board for a review/update or use the Court for compliance. Mr. Dierckman asked ifthe neighbors could sue on behalf of the City; Mr. Hollibaugh did not know what the neighbors could do. The City can write tickets or site them in City Court. Mr. Hawkins confirmed it clearly stated ~hese would be one-half segments with three students per class, occasionally employing a third teacher, with parking spaces in the drive to accommodate those present for each one-half segment. However, in the overlap period there have been cars parking along iU _ the roadside at the end of Circle Drive and traffic flow is not impaired. That was the fifth paragraph on I page 13 of the minutes of the August 23, 1993 meeting. It ;;eemed to him that at a minimum, these should be entered into the current commitments. Or the commitments should not be recorded because it appeared the minutes from the hearing were more restrictive. Page 16 of 17 ~ u u Carniel !3oard of Zoning Appeals August 25,2008 Mrs. Torres was extremely frustrated to know the Board approved something expecting people to uphold their commitments. She felt the Mylins just wanted to get the Use Variance and they knew all along they were not going to obey the commitments. The Board was stuck because they could not revoke the variance. What action could they take? Why was the Board hearing this? The situation needed to be remedied. Mr. Molitor was sorry to put the Board off, but he would prefer to convene in Executive Session to discuss what action they might take with respect to litigation, instead of discussing it in a public seSSIOn. Mr. Dierckman moved they meet in Executive Session. The motion was seconded by Mrs. Plavchak and APPROVED 5-0. Mr. Hawkins preferred the commitments not be recorded. He was afraid they would supersede what the hearing reflected which was more restrictive. Mr. Molitor reminded them it required 48 hours notice for an Executive Session. Mrs. Plavchak asked if it was something they needed to act on right now or were the Mylins back in school and it would be an issue that needed to be addressed before next year. Mr. Hollibaugh was informed the lessons were to end on or about August 15th. J. New Business There was no New Business. K. Adj oununent Mrs., Plavchak moved to adjourn. The motion was seconded by Mr. Hawkins and APPROVED 5-0. The meeting adjourned at 8:4'0 PM. -'), ~. S:\Board ofZol)ing Appeals\MinuteslBoard of Zoning Appeals - 2008/20080825.rlf Page 17 of 17