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HomeMy WebLinkAboutDept Report 01-28-02 Department Report Board of Zoning Appeals January 28,2001 Page 4 of 20 . I2h. Northwood Hills, Section 1, Lot 6 (SU-161-01) Petitioner seeks approval of a Special Use to continue a commercial kennel use originally Approved with Conditions for a period of eighteen (18) months on May 22, 2000, as Docket No. 8U-19-00. The site is located at 6320 Northwood Drive. The site is zoned S- I/Residence - Low Density. The definition of Commercial Kennel is as follows: KENNEL, COMMERCIAL. Any Lot on which four or more dogs, or small animals, at least four months of age are kept. The Department would remind the Board that the petitioner also has two cats which count toward the total number of animals on site. Docket No. SU-19-00 was approved May 22.2000. (see exhibit A) with the following Conditions: 1. 2. 3. No open food outside, animals are to be fed indoors (garage); No more than 3 dogs are to be outside at anyone time and one owner must be on the premises during that time; These commitments will expire in 18 months and the homeowner must return to the Board for a review of the situation. Through attrition, the petitioner will be down to 3 dogs and in compliance with the Ordinance. The Department recommends that this Special Use be allowed only to the extent that as the current number of animals diminishes. the petitioner will bring the total number of animals into compliance (a maximum of three (3)) with that permitted within the S-I/residence District. The Department further recommends that the Conditions be restated as follows: 1. No open food outside. Animals are to be fed indoors (garage). 2. No more than three (3) dogs are to be outside at anyone time, and a minimum of one (1) owner must be on the premises during those times. 3. By the end of the eighteen-month approval period, the owner must have reduced the number of animals to three (3) dogs and/or cats in compliance with the ordinance. 4. At the end of the eighteen-month period, the owner must either: a) return to the Board at its Monday, July 28,2003, meeting to demonstrate that they have come into compliance with the ordinance, or b) apply for a new Special Use approval in time to be heard at the Monday, July 28, 2003, meeting. The Department also recommends that these take the form of a written. recordable Commitment. rather than Conditions of approval. Page 4 Department Report Board of Zoning Appeals January 28, 2001 Page 5 of20 Item 12h. exhibit A Board of Zoning Appeals Minutes May 22, 2000 2h. Northwood Hills, Section 1, Lot 6 (SU-19-00) Petitioner seeks approval of a Special Use to establish a commercial kennel. The site is located at 6320 Northwood Drive. The site is zoned S-l/Residence. Filed by Bruce Boje for Gerald & Evelyn J. Easton Bruce Boje, attorney for Mr. and Mrs. Easton, appeared before the Board requesting approval to establish a commercial kennel. Over a period of years, the Eastons have taken in a number of pets who have been abandoned, injured, and in need of special care. Mrs. Easton at one time worked for Home for Friendless Animals and the driveway and front yard of their residence became a designated drop-off place for these types of animals. The Eastons currently care for 12 dogs with special needs. Two of the dogs are over 14 years of age, four or more are over 11 years of age, and the additional 6 dogs are all over 5 years of age. The Eastons have a fenced back yard for the dogs; they are all neutered, and all dogs have their shots. Since the current controversy, it was brought to the Eastons attention by the Department that due to the number of dogs, they were considered a commercial kennel under the Ordinance. The Eastons were advised that they would have to either seek a Variance or a Special Use to continue to keep the dogs. The Eastons have attempted to limit the amount of time the dogs are outside. With respect to the designation of "commercial kennel" -- it is not commercial in the sense that it is done for income or for profit - these are domestic pets for their own personal use and enjoyment. The Eastons are not paid for keeping the pets; they do not receive any income for keeping the pets. In fact, keeping the pets has been a very expensive proposition. The pets are part of the Easton's family. Mr. Boje circulated pictures of the Easton's property among the Board. The pictures were labeled and showed the surrounding area. The Eastons were surprised when they received notification by the Department of Community Services that they were considered a commercial kennel under the Ordinance and would need separate zoning approval. The Eastons had their dogs licensed through the Township Trustee's office and received a minor kennel license from Dixie Packard in the Township Assessor's office. The Eastons thought they had complied with the law. Mr. Boje stated that the Eastons do not want to open this for commercial use. If they are allowed to continue to keep the dogs, the Eastons request that approval only be for them and their use, and only for their situation, and that it not attach to the land and any property rights. The Eastons are willing to commit that no more animals will be added than currently housed by them. In addition to their dogs, they have two cats. (emphasis added) Mr. Boje offered to submit pictures of the animals. In addition, through attrition, the Eastons will be able to bring the number of animals into compliance with the Ordinance. It is felt that the petitioner's request meets the Special Use requirements. Nothing is being changed about the residential use ofthe lot or the character of the area. No structures are being added; nothing is being done to alter the construction of the home. The dogs are not penned outside, the dogs do not generate traffic or income, and the dogs are not kept for commercial use. Members of the public were invited to speak in favor of the petition; the following appeared: Robert Bauxal, 6330 Northwood Drive, a resident at this address for 30 years, stated that he and his wife, Peggy, are immediate neighbors of the Eastons to the east. Mr. Bauxal stated that the Eastons are fine neighbors and good people, and they admire what they are doing. The dogs have never been a disturbance to them during the day and especially at night. It is critical for the Board to understand that this is not a commercial endeavor on the part of the Eastons but rather a humane endeavor. Mr. Bauxal stated that it had never occurred to him that the dogs would, in any way, diminish the value of his property until it was suggested by some people who are opposed to the Eastons. Page 5 Department Report Board of Zoning Appeals January 28,2001 Page 6 of20 ,- Mr. Bauxal stated he still does not believe the dogs devalue his property and he is in support of their petition and would like the Board to grant their request. Lisa Smith, 11966 River Road, a neighbor three homes away from the Eastons, stated that she was not aware of the dogs barking. The only time the dogs barked for any length of time, Ms. Smith thought there was a medical problem at the Easton home. It was discovered that the dogs were barking because a man had come to clean out the gutters, without an appointment. It would be very unusual for the dogs to bark for any length of time. The Eastons are definitely not a commercial kennel but do rescue dogs from a humane aspect. The neighbors have dumped dogs over the fence into the Eastons yard at night, assuming that the Eastons would take care of the animals. Most all of the dogs at the Eastons have come from people in the neighborhood. The problem is not the dogs but rather a problem between the Eastons and one neighbor next door. Mr. . Easton thought he was obeying the law all these years in paying for and obtaining a license for a minor kennel. There was no communication between the zoning board and the licensing agency. Ms. Smith felt that the whole situation was unfair and brought on by one angry neighbor. Donald Woods, 12012 Pebblebeook Lane, Northwood Hills, also owner of six acres of property immediately east of the Eastons home, addressed the Board. Mr. Woods stated he had received a letter from the Eastons explaining their position as to the dogs. The letter reflected a great deal oflove and compassion for the animals. Mr. Woods stated that he did not believe the Variance would detract from the value of his home or the property in the area. If the request for the Variance is not granted, the dogs would have no recourse but to be put to death and this would be most unkind and unfair. Mr. Woods was in support of the Variance for the Eastons. Jill Jensen, 11966 River Road, addressed the Board. Ms. Jensen stated that her home is in close proximity to both the Eastons and to the Miller household. Ms. Jensen stated that she had attended her first Northwood Hills Neighborhood Association meeting, prompted by a letter attached to the Northwood Hills newsletter. At that time, it was thought that the request was initiated by the Association, but later found that it was initiated by Mr. Miller personally; Mr. Miller is also president of the Association. A discussion was begun about the dogs, but it was deemed to be more of a personal nature and was left to be determined by the Board of Zoning Appeals. There were two concerns that were addressed--the setting of a precedent, and devaluation of properties. Ms. Jensen stated that she and Ms. Smith had put in a lot of hours and money restoring a 1911 farm house and they would have a lot to lose if properties were to be devalued. Ms. Jensen believes that the dogs do not devalue her property and that the approval would not set a precedent. Ms. Jensen also stated that the situation stems from a personal nature between the Eastons and the Millers rather than the matter of the dogs. Ms. Jensen stated support for the Variance and requested that no new dogs be added and that the current dogs would be allowed to live out their natural lives. Stacy Easton, 7609 Home Drive, Fishers, son of the Eastons, addressed the Board on beahalf of his two brothers and sister, also in attendance this evening. Mr. Easton agreed with all previous speakers. Mr. Easton stated that he and his siblings had resided at 6320 Northwood Drive for many years. The amount of affection and love given to the animals by Jerry and Evelyn Easton is overwhelming--it is an amazing sight to see and it would be beneficial if the Board could view the situation firsthand. Stacy Easton sated that he works at the Plum Creek golf course and at no time have the dogs barked, distracted, or disrupted the golfers. Stacy Easton was in full support of the request for the Variance. Members of the public were invited to speak in opposition to the petition; the following appeared: Doug Evelo, 6035 Shieling Court, Northwood Hills, distributed handouts to the Board with letters of opposition and a petition signed by 35 individuals who are also opposed to the Variance. Mr. Evelo objected by reason of legal, technical and functional issues. Mr. Evelo stated that the zoning variance had been on the books since January, 1980 and is not new. Mr. Evelo referred to letters of opposition previously submitted. Mr. Evelo gave a brief history of the Northwood Hills Civic Association. Mr. Evelo referred to a previous case in 1995 that was before the Board for Mr. & Mrs. Dodd who had requested a variance for a commercial kennel and it was not approved. Mr. Evelo objected for the specific reasons of property values, noise factor, and general nuisance. Mr. Evelo stated that the Eastons do not meet number 3 and number 4 ofthe application for the special use, and the current use affects the adjacent property values. Page 6 Department Report Board of Zoning Appeals January 28,2001 Page 7 of20 Mary Grillea, resident of Northwood Hills for 32 years, states that she walks every day. There are no sidewalks within the subdivision and Ms. Grillea walks in the street. Ms. Grillea feels threatened by the Easton dogs and states that she was threatened by the leader of the pack and only managed to escape because the lead dog's attention was diverted. Ms. Grillea stated that she no longer feels free to walk in her subdivision on public right-of-way, knowing that people have been killed by a pack of dogs. Ann Davis, Northwood Drive, across the street from the Eastons, questioned the number of cats. There are definitely more than 2 cats and they roam Ms. Davis'. yard. The dogs may be old, but they are virile and can run very fast. If the dogs are so sick and so old, it is not understood how they can escape and run in a pack. Ms. Davis stated that she also loves animals and has a puppy, but it is tethered in the back yard while the Eastons' cats roam. The use of the Easton property certainly does have an effect on the value of homes in the subdivision. Kathy Kessler, 6220 Northwood Drive, stated that she does not work outside the home and is home all day. Ms. Kessler did not wish to attack the Eastons but did want to address the problem. This is a zoning violation, not a neighborhood feud. According to Ms. Kessler, the dogs bark all the time, and the Kesslers cannot open their windows and enjoy their back yard in the summer months. Ms. Kessler has counted II cats. Ms. Kessler states that she also likes animals, but her quality of life is being jeopardized. The current use of the Easton property devalues property. The location for a commercial kennel is wrong. Ms. Kessler stated that she is opposed to the Variance by reason of the noise of barking dogs, health issue--whether or not the animals have had their shots, devaluation of property, and the establishment ofa precedent if this request is granted. Jake Darling 11761 Prairie Place, Northwood Hills, addressed the Board and commented that 16 to 20 animals, living indoors, is not a healthy situation for either the resident or the animals. Public health is certainly an issue. Mr. Darling also stated concern about establishing a precedent. Mr. Darling was not in favor of the variance, and asked that 6 months be given to the Eastons to allow them to come into compliance with the Ordinane of 3 dogs, and that this would be in the best interest of the area. Roy Oliphant, 11932 Westwood Dive, Northwood Hills, addressed the Board. Mr. Oliphant stated that he too had attended the homeowners meeting and there was a great deal of feeling expressed on both sides of the issue. Mr. Oliphant is opposed to a commercial kennel but was hopeful of finding some compromise to the situation so that there are not a lot of ill feelings within the Homeowners organization. Mr..Oliphant stated that he is also an animal lover, and a lot of the people that spoke professed to be animal lovers. Mr. Oliphant's solution: Those people that love animals could each take one animal into their own home and help relieve the anxiety of the Eastons and provide the animals with shelter. Ralph Zimmerman, 11921 Forest Lane, Northwood Hills, addressed the Board as a 30-year resident of Northwood Hills and spoke of the solitude and the abundance of trees. Northwood Hills has been a quiet subdivision, but sitting outside now and having a backyard bar-b-cue involves listening to the barking dogs. Mr. Zimmerman stated that since living in Northwood Hills, he has had a number of cats, dogs, and horses, but NOT all at the same time. Mr. Zimmerman thought that what the Eastons are doing is commendable, but not in a residential neighborhood. There are building restrictions and covenants so that people can enjoy their property and not suffer because of what their neighbors are doing. This is a residential neighborhood, not an area for a commercial kennel. Joe Brown, 6020 Sheiling Court, Northwood Hills, stated that he lives at the farthest boundary of North wood Hills. Mr. Brown stated concern that the petition is for a commercial kennel license and the setting of a precedent. Northwood Hills is a tranquil neighborhood full of trees, and the tranquility has been disrupted. There is no way that the number of animals stated can live within a residence and not be of some type of nuisance to the adjacent property owners. Douglas P. Miller, 6310 Northwood Drive, Northwood Hills, addressed the Board as a neighbor, not a member of Northwood Hills Homeowners Association. Mr. Miller stated definite opposition to the Variance. Mr. Miller stated that his family was formerly good friends with the Eastons and even fed the dogs for them when they were on short trips or vacation. Originally, the Eastons stated that they would take in sickly strays, nurse them back to health and find homes for them. However, the animals have grown in number since 1995. There were numerous confrontations with the Eastons. Mr. Miller stated that his children could not play in the backyard due to the barking dogs next door. Mr. Miller stated that he has contacted the Hamilton County Sheriff, the prosecutor's office, Carmel Page 7 Department Report Board of Zoning Appeals January 28,2001 Page 8 of 20 Department of Community Services, Township Trustee's office, and the Northwood Hills Civic Association. In 1998, the Eastons were served with a citation and since then, their attorney has contacted Mr. Miller in an attempt to resolve the matter. The Eastons have offered to construct a privacy fence and have also offered to put the dogs on a schedule for time outside. This proposal is not acceptable to Mr. Miller or his family, in that it would work in the reverse for the Millers and put them on a scheduled as to when they could enjoy their back yard. Mr. Miller stated definite opposition to granting the variance for a commercial kennel. Rebuttal, Bruce Boje. The request for a commercial kennel was made at the direction of the Department because the ordinance really does not allow the request to fit in any other classification. Mr. Boje stated that he is not aware of complaints being brought to the Department of Community Services prior to 1998. Jerry Easton, 6320 Northwood Drive, addressed the Board and stated that he has a fenced yard, approximately one- half acre, and that is where the dogs are. The dogs are not let loose to run in the neighborhood, and when they are in the fenced yard, someone is out with them. Mr. Easton stated that he has had no complaints from the Plum Creek golf course, and the 11 th tee is 10 to 20 feet beyond his fence. If the dogs were barking, the golfers would certainly complain, and to date, there have been no complaints. Mr. Easton stated that they have had the dogs for 9 years, and all of a sudden, there is a problem. Mr. Easton stated that he followed the law and obtained the license. Dixie Packard told Mr. Easton that the receipt for the license is misleading, and it is possible that the homeowner would not be aware of the 3 dog restriction. Steve Engelking, Director of the Department of Community Services, rendered the staff report. The issue before the Board is whether or not to grant a Special Use which is allowed in a residential area for a commercial kennel. This has been an issue that the Department has been involved in for approximately two years, and it is an emotional one. Mr. Boje has correctly stated the situation that several complaint letters were received by the Eastons, and inspectors from the Department have visited the Eastons on a number of occasions to discuss the situation. Certified letters have been sent to the Eastons and at least one letter from the Department of Law of the City of Carmel. The contacts were over a period of two years, and predicated on the fact that there were initial conversations that seemed to have some fruitful ending in sight, only to find that that was not the case. At one point, the Eastons had offered to sell the property, and it was listed. At that point, the complaints seemed to subside. The property did not sell, and the Department re-visited the issue. The Ordinance is a quandary, but a commercial kennel is classified as anything greater than three pets. The characterization by Mr. Boje is somewhat misleading; there was confusion between the Township Trustee's office and the City of Carmel with regard to the Ordinance, in that the Township Trustee's office does issue pet licenses. However, they do not issue licenses for any commercial operation or kennel operation, only dog licenses or cat licenses. The Township was unaware of this Ordinance for a number of years, and they have since been advised in writing. The Department report is somewhat analogous to what Mr. Boje has offered for some sort of mediation. If the Board chooses to approve the Special Use, they could condition it for a period of time perhaps consistent with the attrition of the pets down to a legal number allowed within a residential zone. The public hearing was then closed. Questions and Comments from the Board: Leo Dierckman asked to see a copy of the Minor Kennel Permit issued by the Township. Pat Rice asked for clarification of the Minor Kennel License which is for less than 15 dogs. Terry Jones stated that the Minor Kennel License is a form that the Township Trustee's office uses. The Township does issue dog tags and specifies certain numbers for major and minor kennels. The result of discussion with the previous Trustee is that they are required to issue the license or a tag seeking the license and not necessarily bound by the zoning ordinances of the City. However, it does not relieve the individual of obtaining the licenses. The Township does notice the individual, but they do issue the license. Pat Rice stated that there is certainly reason for the confusion. Page 8 1 Department Report Bo~dofZomngAppews January 28,2001 Page 9 of20 John Molitor commented that the State Statute explicitly gives the power to the Trustee to issue the license outside the City limits. There is. a Joinder Agreement in Carmel and Clay Township with reg~d to the zomng. The Trustee does not directly regulate the zomng, but does have the power to issue the permits or dog licenses. In a perfect world, there would be better communication and an ordinance would have been passed stating that the licenses should not be issued unless there is a certification that the zoning was in place--but this has not occurred yet. Leo Dierckman questioned the petitioner as to the actual number of pets in his ownership. Jerry Easton stated that he has 2 cats only. (emphasis added) There ~e neighborhood cats that come ~ound as well as raccoons and opossum. There ~e four dogs that ~e 11 years old, one is 13 ye~s old, two are 14 ye~s of age and need medication and special care. Ms. Rice asked again about the dogs and whether or not they run the neighborhood. Mr. Easton responded that his dogs ~e in the fenced back y~d and do not run the neighborhood unless they escape by chance. Pat Rice commented that if the Variance is granted, the Bo~d would need to set some conditions--dogs cannot be left outside all day to b~k. Mr. Easton responded that the dogs ~e not out barking all day. Pat Rice asked if there were any recourse available to the neighbors if the variance were granted and the dogs continued to b~k. John Molitor stated that if Commitments were made reg~ding the maintenance or custody of the dogs to hold down the amount of barking, and a violation of that Commitment occurred, the City could ch~ge the landowner with a violation, or the Special Use could be considered void because of failure to honor the Commitment. E~lene Plavchak asked about the number of pets considered to be adoptable; Mr. Easton stated that there ~e 5, which are adoptable, including 3 puppies left on the front porch in a basket. Ms. Rice asked if the Eastons were extremely attached to the animals; Mr. Easton responded that it was like their children. Leo Dierckman proposed the following commitments: 1) no food accessible outside home and available to any stray animals, including the garage, in perpetuity. 2) no more than 3 dogs outside at anyone time and owner to be present in home when dogs are out. 3) Down to 7 dogs and two cats in 6 months. In other words, find homes for 5 dogs presently on the property. There would be a total of30 months for the term of the permit and for the homeowner to come into totW compliance. Michael Mohr agreed that this is an extremely difficult decision. Mr. Mohr was concerned with the length of term and that the neighborhood would be policing the situation and it may create chaos. There needs to be some resolution to the problems. E~lene Plavchak commented that in spirit, Mr. Dierckman's proposal is good, but in reality it would be difficult to enforce. The Eastons should be able to find a suitable home for the 5 dogs that ~e considered adoptable. The 7 feeble dogs would be difficult to place and would need different consideration--but to set a date for their demise is a little h~d-hearted. As the dogs naturally expire, they should not be allowed to be replaced and the Eastons will eventually be in compliance. Pat Rice, no food outside is an absolutely essentiw idea and that one of the owners be present when dogs ~e outside is great, atso,the natural attrition is good. Any volation in terms of dogs running in the neighborhood needs to be met with some consequence. There is certainly a discrepancy between the Township and the Ordinance. To take away the five dogs the Eastons have become attached to is a difficult decision. Ms. Rice stated she would be inclined to set limits with no outside food, the owner must be present when the dogs ~e out. Michael Mohr asked if there were an wternative to granting a commercial kennel license, and if there were any way to work out a compromise. Page 9 Department Report Board of Zoning Appeals January 28,2001 Page 10 of20 . Terry Jones responded that one of the problems is the number of animals--if they are over that number, by definition, it qualifies as a commercial kennel. Leo Dierckman commented that there needs to be some time constraints for a permit to expire within normal parameters. John Molitor asked that the Board consider the option to grant a Special Use with some Commitments for a period of time, and when the Commitment expires, the Eastons would come back to the Board with a report on the situation and possible renewal. Leo Dierckman moved for the approval of Docket No. SU-19-00, Northwood Hills, Section 1, Lot 6, with the following Commitments: 1) No open food outside, animals are to be fed indoors (garage); 2) No more than 3 dogs are to be outside at anyone time and one owner must be on the premises during that time; 3) These commitments will expire in 18 months and the homeowner must return to the Board for a review of the situation. Through attrition, the petitioner will be down to 3 dogs and in compliance with the Ordinance. APPROVED 3 in favor, one opposed. (Michael Mohr) Page 10