HomeMy WebLinkAboutLetter #54 Jack Rogers January 19,2022
Joe Shestak
City of Carmel Planning and Zoning Commission
1 Civic Square, 3rd Floor
Carmel, Indiana 46032
RE: Opposition to Docket PZ-2022-00208-SE
TO: Members of Board of Zoning Appeals
This letter is written in direct response of the Department Report referring to the BZA meeting
on January 23, 2023. It was published on January 18, 2023. It appears to be a replica of the
"Hearing Office Report"previously published. There are references throughout to the"Hearing
Officer." I assume that will now refer to the BZA although I will use the language as stated in
the Report. I will be referring to various portions of the Report. The sections that are bold are
from the Report. I will comment on each bold section by enumerated numbers following the
bold typing.
General Information and Analysis—From the Hearing Officers Department Report, the
Hearing Officer's discretion must be "based on the special unique conditions pertinent to
the site." Then it cites to Sections 5.72 and 9.08. Thus it is important to understand the
specific facts that apply to this case.
I. The BZA must apply the facts in the UDO Section 5.72 and 9.08 to this case.
General Info& Analysis—This part of the Report from the UDO concludes"Group Homes
are residential."
1. The establishment in this case is a profit-making business. This type of establishment has
been considered a business for centuries,but whether you take it as a business or a
residence it is irrelevant to this case. We are looking at single, family dwellings. We are
not speaking of residential in general by any stretch;the proposed variance is not a single
family residence.
2. The single family dwelling area is not just Woodland Springs but is a single family
residential area bounded on the south by 106th Street, on the west by Keystone Avenue,
on the north by 126th Street and on the east by Gray Road. In this entire area,there is no
business zoning variances or other than single family dwellings. The application
requested is not for a single, family dwelling residence.
3. Why is that? Because for many years,the Plan Commission has used Keystone Avenue
as a barrier dividing single residential zoning from business zoning. I have been told on
different occasions that Keystone is a barrier recognized by the Planning Commission. It
has been told to me at one meeting that"in regard to Keystone, business zoning is on the
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west and residential is on the east." This is exactly the way the zoning exists today.
4. To grant this variance would allow, for the first time, other than single family dwellings
east of Keystone.
-Clearly the Petitioner is developing this for a profit-making business.
- Why is this so important? It is the "slippery slope doctrine." In other words, once
business zoning is permitted east of Keystone then others will attempt to obtain the
same zoning. They will argue that if there is one business permitted then to deny them
would be unequal treatment. Thus the whole concept of the Keystone barrier is
completely broken.
Basis of Review—"A Hearing Officer, in reviewing a Special Exception Application,shall
give consideration to the particular needs and circumstances to each application and shall
examine the following items as they relate to the proposed Special Exception." Seven
Points to follow:
1. Surrounding zoning and land use. In this case, all the surrounding areas are single family
residences. No business or general residences are in the area. In fact,there are none east of
Keystone Avenue.
2. Protective residential covenant in Woodland Springs Article VI, Section 6.1. The
covenant prohibits the approval of the variance.
3. What is the result of allowing business zoning in a single residential area?
-The allowing of such business zoning would devaluate the single residential dwelling.
- The purpose of zoning is to separate various activities in different areas. In this case,
Keystone is the barrier separating business from single family dwelling. (The word
"residential" is irrelevant to this case because residential could be an apartment,boarding
house, etc. We are talking about single family dwellings which are stated in the current
comprehensive plan.)
Basis of Approval or Resection—"A Hearing Officer, in approving or rejecting a Special
Exception Application,shall base their decision upon the following factors as they relate to
the above listed items(Basis of Review)concerning the Special Exception. Three points to
follow.
1. The Hearing Officer must base his decision by balancing the cost/benefit to the
community and its anticipated effect on surrounding property values. This in and of itself
should defeat the variance. This will not only have a direct and substantial devaluation of
the surrounding residents' property value, but in addition would open the door for
additional businesses in the area. (I find this request has never been complied with.)
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2. The neighborhood is completely family residential. There is no need to break that long
established criteria.
3. The vehicular traffic in the area would definitely increase when people visit the home and
also the number of deliveries that must be made. The petitioner picked the house on the
narrowest street(22 feet wide).
4. Paragraph seven states that the Hearing Officer must give consideration to"Protective
restriction and/or covenants." The Woodland Springs Covenants state that this property
has been designated as single family residential dwellings.
Special Exception Group Home Decisions: Commitment/Condition.(UDO Section 9.08)
A Hearing Officer may,as a condition of any approval of an application for Special
Exception, require or allow the owner to make any or all of the following commitments
concerning the use of the property.
1. The Special Exception must fully comply with Section 5.72 Group Home Use—Specific
Standards
2. The variance cannot be granted unless all the requirements in Section 5.72 must be
complied with.
Code Section 5.72
1. Section 5.72 A,D,E
Section 5.72 A—Purpose—The first sentence states that, "It is the purpose of this Section
to benefit the general public by minimizing adverse impact on established residential
neighborhoods in the City and the owners and residents of properties in these
neighborhoods which may result from the conversion of residential properties to business
or institutional uses." The real purpose of A Purpose is to prohibit the granting of
business zoning in a residential area when it causes "adverse impact" on the residents in
the area. It presupposes that the allowing of a business zoning or institutional use in a
residential area will lead to adverse impact(devaluation) of the residential property. The
granting of this variance will adversely impact the valuation of hundreds of homes in the
area. The Code Section is designed to prohibit such adverse impact. The whole concept
of zoning is to prohibit adverse impact by requiring other types of zoning in different
areas. It has been a fundamental aspect of zoning that zoning should not be allowed for
business or institutional use zoning in all single residential housing. Reasonable
accommodation is not to be granted if it creates a fundamental change in the
Comprehensive Plan. The Section A Purpose has a"however clause" which prohibits
reasonable accommodations when the "Comprehensive Plan" is violated. This is exactly
what will happen by granting this variance—you will eliminate the "Comprehensive
Plan." Once you allow business zoning or institutional uses in this area the
Comprehensive Plan is eliminated.
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2. D Limitations—The Code, under this section, states near the end, "Nothing in this
Section shall relieve any person of the obligations imposed by any and all application
provisions including provisions for federal and state law...." Currently, a"Declaration of
Covenants and Restrictions for Woodland Springs under Article 6 Section 6.1 states, "all
lots should be used exclusively for residential purposes and the occupancy for a single
family...." The lot requested in this variance is covered by this Covenant. It proclaims
that this lot is limited to the use of a single residential family use. No exceptions! The
variance and the Covenant are two separate provisions. The granting of the variance does
not eliminate the requirements of the Covenant. The Covenant applies to the land itself
and when the Petitioner purchased the home the Petitioner agreed to accept the provisions
of the Covenant. By agreeing to the purchase, the Petitioner entered into a contract with
the Homeowners Association. If the Petitioner attempts to use the property other than
single residential, it is a violation of that contract. The Covenant is not declared null and
void by the passage of the variance.
3. E Reasonable Accommodations—Under this Section, it states that,"Director of
Community Services"will review the application and would apply the reasonable
accommodation "to grant Special Exception." There is no showing that this requirement
has ever been applied by anyone to this case. This includes the Plan Staff or the
Community Service Staff in making their recommendations. It is required that this be
followed by the BZA in making their decision.
Additional Considerations: Although this section appears in this report,it applies to
the"Director of Community Services"and does not seem to apply to the BZA
Hearing. There is no evidence that the Director followed any of the requirements
contained in the Additional Considerations. Seven Points to follow:
Question 1: Is there other group home clustered within the block of the site?
Answer: No.
Question 2: The number of unrelated persons who will be living in the group home, and
whether any professional support staff will also be residing there?
Answer: There is no professional support(i.e. registered nurse)to be there at any time.
There are three staff members but not termed"professional."
Question 3: Will there be any resident cars and more than two staff cars for workers?
Answer: The resident will not have cars.
Question 4: If the Dwelling,existing, modified or new, is similar in design,materials and
landscaping as other adjacent and nearby Dwellings?
Answer: The "Dwelling" is within a single residential family area, and the proposed
group home does not fit into that area.
Question 5: Any other exterior indication that the Dwelling will be inhabited by Group
Home residents?
Answer: The Petitioner states that there is no signage,but there will be cars parked on the
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street and trucks such as food and laundry delivering products to the home.
Question 6: Is there any undue financial burdens imposed on the city?
Answer: If you include the residents as part of the City,there is a direct impact. The
entire residential section east of Keystone is all single dwelling residents. The approval
to the variance will have an impact on the current residents.
Question 7. Is there a Fundamental Alteration in the Comprehensive Plan?
Answer: Not only is there a fundamental alteration in the comprehensive plan, it is
completely destroyed and will never be the same again.
As it exists today, east of Keystone is residential. This includes hundreds of single
residential homes. The Comprehensive Plan indicates that this is the case. This has been
the position of the Planning Commission to keep the zoning east of Keystone residential
for many years. Also,the Commission has stated that the area west of Keystone be zoned
for business. This goes back to the 1970's where I attended a Planning Meeting. There
was a proposal for business zoning east of Keystone. The Plan Commission turned it
down. One member stated that Keystone was the barrier between business and single
family dwelling. The area east of Keystone would remain single residential dwellings.
This is the case which exists today. There is no question that the rezoning east of
Keystone,by the granting of this variance, would completely change the Comprehensive
Plan. The opening of a business or institutional zoning east of Keystone would open the
floodgates of allowing other businesses or institutions in the area. There is no question
that this will be a fundamental change in the Comprehensive Plan.
Code Section 9.08C
1. "A Hearing Officer in reviewing a Special Exception application, shall give consideration to
the particular needs and circumstances of each application, and shall examine the following
items as they relate to the proposed Special Exception:"
2. There are seven points to be considered in this section:
The surrounding zoning and land use—The area east of Keystone is residential and no zoning
for business. This is a strong argument against the variance.
Access to Public Streets—There is a street but it is 22 feet, and when there is a parked car on
the street two cars cannot pass. The Petitioner states the residents will have no cars.
However, care takers will have cars. The problem will be when visitors for the residents and
commercial trucks such as food and laundry are parked at the curb. This street is too narrow
to allow for this kind of activity.
Are there driveway and curb cuts? There is one curb cut there.
Parking Location and Arrangements? There are neither parking areas nor arrangements.
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Trash and Material Storage Since the Petitioner has stated the outside of the dwelling will
not change, there is no change in trash and material storage dwellings.
Exterior Lighting There is no indication of any change in exterior lighting.
Protection Restrictions and/or Covenants There is a portion from Woodland Springs
subdivision Covenants in Article 6 Section 6.1 which prohibits other than single residential
dwelling on the requested variance property. Section 6.1 has been in effect for years. It is a
valid contract that can be enforced by the Home Owners Association. To permit this
variance would be a direct breach of the Covenant.
Findings of Fact:
Please refer to the Petitioner's Findings of Facts included in their SZA Info Packet.
1. This is the only mention of a Finding of Fact in the entire Report. This has been written
by the Petitioner. There is no place in the Report that shows an independent Finding of
Fact or an application to the Code. There is no reference to all of the information
submitted by those in opposition to the variance. In other words, the entire basis for the
consideration of the departments is based solely on the Petitioner's position. They have
failed to even consider the resident's submission in opposition. This is a direct failure to
consider the residents position.
2. The BZA must apply the Facts presented by the residents in their letters and petitions.
Recommendations—The UDO directs us to look at group home special exceptions with
favorable exceptions. The department report and analysis above support that. The Dept.
of Community Services(DOCS) generally recommends favorable considerations....
1. The Plan and Community Services Departments concluded that since the Code "favors
home groups" they recommended the passage of this variance. The Department of
Community Services made this same decision. The Code was written for a reason, and
the fact that "favorable consideration" does not eliminate the need to fulfill the
requirements of the Code. The whole basis of both the Plan Report and the Department
of Community Services Report was based upon the concept of the favorable
consideration. This only applies after the Petitioner has met the requirements of the
Code. In this particular case, neither of the"Departments" even attempted to do so and
rely solely on the Plaintiff's Finding of Facts.
2. In the case of the Department of Community Services, I requested them to provide me
with the information they used. They did not comply
3. First, under the Report, it is clear that the BZA must apply the total facts of this case.
Secondly,they must follow the Code in rendering their decision.
4. As a final point, in my personal opinion, this whole case should have never occurred. It
has cost money,time and concerns of the residents of Woodland Springs. All the
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Petitioner had to do was to place the establishment in the proper zoning. There is no
opposition to a group home in the right zoning.
Jack H. Rogers
16 Horseshoe Lane
Cannel, Indiana 46033
317-846-7944
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