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HomeMy WebLinkAboutDept Report 01-28-02 City of Carmel DEPARTMENT OF COMMUNITY SERVICES Division of Planning & Zoning January 23, '2002 Department Report To: Board of Zoning Appeals Members From: Department of Community Services Re: Projects scheduled to be heard January 28, 2002 B. Public Bearin!!: Ih-9h. These Items Currently Tabled: Lakes at Hazel Dell, Section 1 (UV-133-00; UV-134-00; UV-135-00; UV-136-00; V- 153-00; V-154-00; V-155-00; V-156-00; V-157-00) On November 28. 2001. Ordinance No. Z-365-01 became effective. effectively obviating these petitions. The petitioner's representative has requested that they remain on the Agenda until such time as the petitioner has filed the Temporary Use and Sign Permit applications for these properties. The Department has forwarded the petitioner's representative the paperwork necessary to file the applications. and anticipates that this will occur within the next thirty days. 10h. This Item Currently Tabled at Petitioner's Request: WTF - Sprint Spectrum (A-97-01) Appellant (an Interested Party) wishes to appeal the decision of the Director regarding the collocation of a WTF antenna on an existing private radio tower. The site is located at 1388 Queen's Way. The site is zoned S-l/Residence - Very Low Density. On August 23.2001. the Director issued a letter revoking the building permit (Permit No. 627.01B) for the antenna on this site. The Department believes' it would be premature to consider this petition until the matter of the Subdivision of the Subiect Property has been addressed. The petitioner has requested that this Item be Tabled until such time as the matter of the Subdivision of the property has been addressed. Page 1 Department Report Board of Zoning Appeals January 28,2001 Page 16 of20 I. Old Business. 1 i. This Item Currently Tabled Pending Action by the City Council: Lakes at Hazel Dell, Section 1, Common Area 3 (SUA-63-01) Petitioner seeks to amend Commitment 2(B) (lifeguard) of Instrument No. 199909969620 relating to the Special Use approval granted for the Lakes at Hazel Dell Amenity Area under Docket No. SU-37-99. The site is located at 12474 Dellfield Boulevard West. The site is zoned S-I/Residence - Low Density. Ordinance No. Z-365-01 became effective on November 27. 2001. The following language was adopted: 21.3 Basis of Board Review. The Board, in reviewing the Special Use or 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 Use or Special Exception: 26. Need for lifeguards and other supervisory personnel, in respect to a private recreational development or facility. (Subsection 21.3(26) adoptedper Z-365-01). 25.2 Fences. 25.2.10 Swimminll Pools. In districts where a private swimming pool is permitted as an Accessory Use, the fencing for such pool must comply with both this Section 25.2 and the standards applicable in the district. Whenever the Board grants Special Use approval to a private recreational development or facility that includes a swimming pool, the Board shall require appropriate fencing and shall also require the applicant to make a Commitment that necessary lifeguard protection will be provided at all times when the pool is open for use. (Subsection 25.2.10 adopted per Z- 365-01) At the June 25. 2001. (see exhibit A) meeting of the Board of Zoning Appeals. this Item was Continued in order to allow negative Findings-of-Fact to be drafted by the Board's Attorney. Although a Motion to Approve was made and seconded. no final vote was taken on the petition at that meeting. The only vote taken was to Continue the petition to the July 23.2001. meeting of the Board. At the beginning of the July 23. 2001. (see exhibit B) meeting of the Board of Zoning AplJeals. the Board Tabled the Item pending Council action on Ordinance Z-365-01. The Item was addressed under Old Business. at which time the petitioner's representative requested that the Item be Tabled. The matter at hand - whether or not the pool will be monitored by a lifeguard - was at the time of the approval of SU-37-99 and the filing of SUA-63-01 it was a matter of Commitment between the petitioner and the Board. and was not covered by the Zoning Ordinance. The Department recommends negative consideration of the petition given the position of the Plan Commission and the Council on the necessity of life guarding as evidenced by the adoption of Ordinance Z-365-01. Page 16 Department Report Board of Zoning Appeals January 28,2001 Page 17 of20 Item lie exhibit A Board of Zoning Appeals Minutes June 25, 2001 2Ih. Lakes at Hazel Dell, Section 1, Common Area 3 (SUA-63-01) Petitioner seeks to amend Commitment 2(B) (lifeguard) of Instrument No. 199909969620 relating to the Special Use approval granted for the Lakes at Hazel Dell Amenity Area as Docket No. SU-37-99. The site is located at 12474 Dellfield Boulevard West. The site is zoned S-l/Residence. Filed by Joseph M. Sciniia of Baker & Daniels for Zaring Premier Homes. Joe Scimia of Baker & Daniels, 600 East 96th Street, appeared before the Board representing the applicant. The applicant is seeking a special use amendment to delete the requirement that a lifeguard be present during all hours of operation for the community pool located at Lakes at Hazel Dell Subdivision. This request was first made in the year 2000. After a series of continuances, this case was withdrawn. After that, meetings were held with the homeowners in Lakes at Hazel Dell who asked that this case be presented again to the Board for a final decision; this resulted in the case being re-filed. The Lakes at Hazel Dell is a 280-lot subdivision located south of 126th Street along Hazel Dell Parkway. In 1999, a Special Use Approval was granted to construct a community pool for the subdivision. There were two commitments requested and agreed to at that time. One is that the pool be 25X75 feet in size, and 2) that a lifeguard be present during all operating hours during the time the pool is open to the residents. The petitioner is seeking a special exception to delete the second commitment. There are two reasons for the request. A Legal Memorandum has been provided to Counsel John Molitor, setting forth the petitioner's position and legal analysis as to why applicable state law does not allow the imposition of a commitment requiring a full time lifeguard in the absence of a specific City Ordinanceto4hat-effect. The summary of the memorandum is that state law exempts swimming pools that are less than 2,000 square feet from the requirement of a full time lifeguard; this pool is less than 2,000 square feet. County Ordinances also have the same exemption for pools that are less than 2,000 square feet. Both the state and county law that exempts the Lakes at Hazel Dell pool from the full time lifeguard requirement recognizes that a municipality may regulate swimming pools by adoption of an ordinance. No such ordinance exists in the City of Carmel. Secondly, the residents of Lakes at Hazel Dell do not want a lifeguard requirement at their pool as required by the current commitment. Currently, there are 85 residentS at the Lakes at Hazel Dell; Mr. Scimia submitted a petition signed by 51 of the residents in opposition to having a lifeguard present during the hours of operation of the pool. One letter was received in support of the lifeguard, and there were 33 no responses. This means that more than 60% of the residents do not want a lifeguard commitment of the type that has been imposed on this subdivision. Currently, the pool has a lifeguard from 10:00 AM to 8:00 PM. Recently, a number of residents have said they would like to swim in the morning prior to going to work, or later in the evenings. That is not possible, because a lifeguard is not present prior to 10:00 AM and later than 8:00 PM. Mr. Scimia said there is a significant financial burden upon the residents to support the employment of a lifeguard, and they would like to have free choice to decide if and when a lifeguard would be hired. Mr. Scimia commented that there are very few subdivisions in Carinel that have this requirement. Also, this is not a variance and the standards or findings required are not the same for a variance. The [mancial burden upon homeowners associations was not something the Board wished to consider because they did not feel the financial hardship was a requirement that should be considered in this case. That is a requirement with the Variance petition; however, this is a Special Use petition. Department Report, Laurence Lillig. The question before the Board is one of a commitment between the Board and the petitioner--the Department has no recommendation on this petition. Page 17 Department Report Board of Zoning Appeals January 28,2001 Page 18 of20 Pat Rice asked about economic factors related to the special use such as cost benefit to the community and its anticipated effect on surrounding communities. The cost basis appears to be at the core of the petitioner's request. It is the Department's opinion that the use and value of the area adjacent to the property will not be affected in a substantially adverse manner by the absence of a lifeguard. Laurence Lillig responded that finding No.2 covers economic factors, (cost benefit) and is left entirely up to the petitioner. The anticipated effect on the surrounding property values is another question and that is covered by the Department. Whether or not there is a lifeguard present does not affect property values in the area or surrounding properties. Earlene Plavchak asked Mr. Scimia if there were a lifeguard present in the 2000 season. Mr. Scimi responded negatively. Ms. Plavchak asked how that could be explained when a commitment was made to the Board to provide a lifeguard. If there were no lifeguard, how would the pool be maintained and who would monitor the pool in the event of a fecal contamination? If there were a substantial time gap before it is corrected, the condition would put swimmers at risk. Mr. Scimia responded that this pool would be monitored the same way all other pools in the entire State of Indiana are monitored and exempt from this requirement, as well as all of the pools that currently exist in the City of Carmel that do not have a lifeguard requirement. Mr. Scimia said he had been told by other developers in the area that they will not put pools in their plans because of this situation. There is current discussion--we have asked if this is going to be a requirement, that it be put into an ordinance so it would apply to everyone on the same basis rather than only those that come through the process. Not all subdivisions of this size or in this jurisdiction have this requirement. The residents have said that they feel this requirement has an adverse effect on the marketability of the subdivision. Earlene Plavchak's position was that Zaring Homes and the residents have paid Mr. Scimia more in legal fees than it would have cost to employ two lifeguards. The current situation is a flagrant disregard of the commitment made in writing to the Board in the spring of 1999. Charles Weinkauf said that at the time Mr. Scimia came before the Board for the Special Use, there was full knowledge and understanding of the Board's position regarding the granting of the special use. There were several factors that involved the health, safety and welfare of the residents of the community and protecting the residents of the subdivision during the hours of operation of the pool. It was deemed lawful for the Board to impose the lifeguarding commitment as a condition for the granting of the Special Use. Mr. Weinkauf had understood that the commitment was to build a pool 30X75 feet, not 25X75 feet. Regardless of State Law, this Board, based on the opinion of the Department and Counsel, stated it was lawful to impose that type of commitment. The petitioner agreed to the commitment and then flagrantly violated that commitment in the summer of2000. Mr. Scimia responded that they are in compliance with the terms of the commitment made that there would be a lifeguard on duty at all times during the operating hours of the pool. There is not a lifeguard's chair and there are no plans for one. Pat Rice asked about the operating hours and whether or not the pool can be used at other times. Mr. Scimia responded that there is a lifeguard during operating hours; there is also a lock on the gate. Dawn Barnett, associate of Zaring Premier Homes at 2629 Waterfront Parkway, Indianapolis, said reports have been received that even though the gates are locked, persons have broken the lock and utilized the pool. There is a 6-foot, wrought-iron fence with a gate that is locked at all times, except when the lifeguard is there from 10:00 AM to 8:00 PM. Earlene Plavchak referred to a letter from one of the residents who had refused to allow her children to swim there last summer. The pool was not maintained--it was dirty, trashy and unsanitary. There is also the possibility of a drowning because there was no lifeguard present or anyone available trained to administer CPR. Mr. Scima responded he was not present when his client initially agreed to the commitment. Mr. Scima did not expect this to be a popular request and received favorably by the Board. This application was not casually filed. It was only done so because this developer has found himself'in a catch between this Board and its residents. Every Page 18 Department Report Board of Zoning Appeals January 28,2001 Page 19 of20 HOA meeting held wants something done about the situation. The State and County Boards have made a decision that this is exempt and the petitioner is asking that the Board follow the same laws and not put them at a disadvantage with other communities that do not have this requirement. The petitioner is asking that the Board allow the residents to make the choice--they are the ones who live there and must suffer the consequences. The commitment has nothing to do with the cleanliness of the pool; again, that is regulated by the County Board of Health and the State. They must meet the same standards as any other pool. The fact that there mayor may not be a lifeguard on duty mayor may not change the sanitary condition of the pool. (one person out of 50 made that comment) Earlene Plavchak commented that what is really at stake here is Zaring's integrity. Zaring made a commitment. Ms. Rice asked Counsel if the Board's position would .withstand legal scrutiny. John Molitor said this case would serve neither side well to litigate. However, on balance, it would be likely that the Board's position would be upheld. On the other hand, the petitioner does make a good point--if it is a good idea, perhaps it is a good idea for all swimming pools in the community. The Plan Commission has a technical update ordinance coming before it next month and perhaps the Board would like to take the whole issue under advisement and wait and see whether the Plan Commission would wish to add this topic to that ordinance. Mr. Weinkauf said this Board and members of the preceding Board have taken the position that any special use for a swimming pool should make a lifeguard a requirement. Other subdivisions have committed or agreed to similar commitments and have followed them. This commitment was known full well by Zaring at the time the Special Use was granted for the pool. Leo Dierckman asked if other pools are operating within conformance; Laurence Lillig responded in the negative. Earlene Plavchak moved for the approval of Lakes at Hazel Dell, Section 1, Common Area 3 (SUA-63-01), seconded by Pat Rice. Charles Weinkauf noted that the. ballot sheet for the Finding of Fact had already been filled out by the petitioner. The Board will not be using the ballot sheet provided. John Molitor said he would draft proposed Findings for the Board to consider next month as opposed to the positive Findings prepared by the petitioner. Mr. Molitor could also draft negative Findings in support of denial, if that be the case. John Molitor suggested that the Board vote to continue this petition in order to allow proposed Findings to be submitted on behalf of both an approval and a denial. Pat Rice moved to continue SUA-63-01 Lakes at Hazel Dell, Section 1, Common Area 3, to the July 23, 2001, meeting to allow for the submission of Findings of Fact, for both approval and denial, seconded by Michael Mohr. The motion to continue was approved 5-0. Page 19 Department Report Board of Zoning Appeals January 28,2001 Page 20 of 20 Item Ii. exhibit B Board of Zoning Appeals Minutes July 23, 2001 G. Reports, Announcements and Staff Concerns. John Molitor called attention to an Ordinance Amendment that is in the process of being forwarded to the City Council by the Plan Commission. One of the items for consideration in reviewing Special Use or Special Exception Applications is the need for lifeguards in respect to recreational facilities. Another section would allow the Board to require appropriate fencing and commitments that necessary lifeguard protection be provided at all times when a swimming pool is open for use when a swimming pool is permitted as part of a Special Use Approval. In addition, the alternate procedure for Developmental Standards Variances is also included in the Amendments. If approved, the Plan Commission would have the right to appoint one or more members of the Board to serve as a hearing officer and to have a streamline process for minor Development Standards Variances. In light of the amendment regarding lifeguards and swimming pools, the Board may want to consider TABLING Agenda item 2i. until the Board has had an opportunity to see what sort of reaction the City Council may have to the Ordinance Amendment proposed by the Plan Commission. I. Old Business. 2i. Lakes at Hazel Dell, Section 1, Common Area 3 (SUA-63-01) Petitioner seeks to amend Commitment 2(B) (lifeguard) of Instrument No. 199909969620 relating to the Special Use approval granted for the Lakes at Hazel Dell Amenity Area as Docket No. SU-37-99. The site is located at 12474 Dellfield Boulevard West. The site is zoned S-llResidence. Filed by Joseph M. Scimia of Baker & Daniels for Zaring Premier Homes. For the benefit of the petitioner's representative who was out of the room when this item was TABLED, John Molitor again went over the Ordinance Amendment currently on its way to City Council. The Amendment includes two sections relating to the Lifeguard issue. Firstly, there is the proposed addition to the list of items the Board considers when reviewing Special Use or Special Exception Applications; that would be the need for lifeguards and other supervisory personnel in respect to private recreational development or facility. Secondly, the addition of a new section to the Zoning Ordinance would read as follows: "Section 25.2.10, Swimming Pools. In districts where private swimming pool is permitted as an accessory use, the fencing for such pool must comply with both this Section 25.2 and the Standards applicable in the district. Whenever the Board grants Special Use Approval to a private recreational development or facility that includes a swimming pool, the Board shall require appropriate fencing and shall also require the applicant to make a commitment that necessary lifeguard protection will be provided at all times when the pool is open for use." There was also a question regarding pool size, and the Department will be discussing this item with the Subdivision Committee. Dawn Barnett of Zaring Premier Homes, 2629 Waterfront Parkway, Indianapolis, asked if the Lakes at Hazel Dell commitment would go away if the City Council does not approve the amendment. Mr. Weinkauf's response was in the negative. Dawn Barnett then formally requested that this item be Tabled and the Board granted the request. Page 20