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HomeMy WebLinkAboutMinutes BZA 09-24-07 u City of Carmel Carmel Board of Zoning Appeals Regular Meeting Monday, September 24, 2007 The regularly scheduled meeting ofthe Camlel Board of Zoning Appeals met at 6:00 PM on Monday, September 24,2007, in the Council Chambers of City Hall, Catme1.lndiana. The meeting opened with the Pledge of Allegiance. Members in attendance were Kent Broach, Leo Dierclanan, James Hawkins, Earlene Plavchak and Rick Ripma, alternate. Christine Barton-Holmes, Rachel Boone, Adrienne Keeling and Mike Hollibaugh represented the Department of Community Services. Jolm Molitor, Legal Counsel, was also present. Mr. Dierckman moved to approve the minutes of the August 27,2007 meeting as submitted. The motion was seconded by Mr. Hawkins and APPROVED 4-0 with MI. Ripma abstaining. Mrs. Barton-Holmes gave the Department Report. She stated Item 5-6h, North Meridian Medical Pavilion had been tabled to the October 22, 2007 meeting. U Mr. Molitor gave the Department Report. There will probably be a need for an Executive Session to discuss pending litigation either before or after the October 22,2007 meeting. The members will be polled for availability. G. Reports, Announcements, Legal Counsel Report, <md Department Concerns 19. proposed amendment to Rules of Procedure o Mr. Molitor explained the amendment to the Rules of Procedure. It is an amendment to Article 8, Section 7 relating to a "lockout period" for a Variance that is denied by this Board and how long the applicant must wait before re-filing for reconsideration. There is a coordinating Ordinance Amendment that covers Use Variances, which is included on the back page of the memorandum. On the front page of the memo is the change that is needed to the Rules of Procedure which would cover Development Standard Variances. With a Use Variance the applicant wants to request approval to put ause on the real estate that is not allowed by the Zoning Ordinance. With a Development Standards Variance, the use is allowed on the property but they need some relief from one of the standards in the Ordinance that relates to height, setback, size of sign, etc. The Use Variance situation would be covered by the Ordinance that is pending before the City Council. The Development Standards Variance situation would be covered by this proposed change in the Rules of Procedure. CUlTently the Rule goes back to the controversy with Martin Marietta in December 2002. The Board had passed a rule stating that the Board would not accept a new filing when there was pending litigation regarding an application that had been turned down. Ultimately that rule was invalidated by the Courts because the Ordinance was in conflict. The City Council has taken steps to change the Ordinance, but the BZA Rules have not been changed to conform. The impact of this change to the Development Standards Variance would be that atl applicant that was denied would be "locked out" for another six months or until the matter is concluded by a Court that is reviewing the decision of the Board. He recommended the Board accept Page 1 of 22 Carmel Board of Zoning Appeals Regular Meeting 'September 24, 2007 u this change to cover the Development Standards Variances in the Rules of Procedure. That would allow for the Use Variance situation to be covered by thc Zoning Ordinance. Mr. Hawkins asked about the "lockout period" being waived by a suspension of the Rules by the Board. Mr. Molitor statcd that would be for the Development Standards Variance, lfthe Board believed that six months was not necessary because there were other things that were going on with the application, six months could be waived by suspending the rules. The Board would not be able to suspend the 12 month period that the Ordinance is going to require for a Use Variance. From a procedural standpoint, the Staff would advise an applicant that they would have to wait six months once a Development Standards Variance application was denied. If they requested relief, they could file an application asking the Board to waive the Rule. Mr. Dierckman moved to approve the proposed amendment to tbe Ru les of Procedure. The motion was seconded by Mr. Hawkins and APPROVED 5-0. H. Public Hearing: G 1-3h. Pizza Hut/Wing Street - Sign age The applicant seeks the following development standards variance approval: Docket No. 07080007 V Section 25.07.02-09 Two signs facing a right of way. Docket No. 07080008 V Section 25.07.02-09 Two signs not facing a public street. Docket No. 07080009 V Section 25.07.02-09 Number of signs. The site is located at 1344 S. Range Line Rd., and is zoned B-3. Filed by Keith Sullivan of La Raza Pizza Inc. Present for the Petitioner: Keith Sullivan, La Raza Pizza, Inc. With the rebuilding of the Cannel Pizza Hut, there are two brands rather than just Pizza Hut that has been delivering and serving in Cannel for 30 years. The Wing Street product will add more variety to the menu. Wing Street is a new rapidly growing product with over a thousand locations nationwide. Within the next five years La Raza Pizza lnc. plans on ninety percent of their market being the Wing Street variety of wings. Pictures of their franchise locations in Hereford, TX, and the Indianapolis locations at Shade1and and Castle Village were shown. The Carmel location currently has the Pizza Hut sign facing Range Line Road. They are requesting to add Wing Street to that frontage and Pizza Hut and Wing Street to the parking lot/interior frontage. Pictures ofthe requested signage were shown. This location will have a casual dining/sit- down bar appeal. Members of the public were invited to speak in favor or opposition to the petition; no one appeared. The Public Hearing was closed. lJ Miss Boone gave the Department Report. This Pizza Hut is located within The Centre Shopping Center. The sign package does not specify colors for tenant sigJlage. This tenant is on a corner and bas need for additional signage facing the interior parking lot. However, the Sign Ordinance does not allow for signage that does not face a public street. The Department reconunended positive consideration of Page 2 of 22 I ; u u Cam1el Board of Zoning Appeals Regular Meeting September 24, 2007 the variances. There are no mles against double branding. They are conforming to the required size standards. There are no color requirements; therefore the yellow and white signs are [me. Mr. Dierckman asked about the total sign sizes. Miss Boone stated the signage for each frontage would equal 24 square feet. Forty square feet is allowed per frontage. The current white Pizza Hut sign is about 17 square feet. With the additional Wing Street sign, it would be 24 square feet which is significantly under what is allowed. Traffic from both directions would be able to see the signs. Other signs within The Centre have two colors in their SIgns. Mr. Dierckman asked if they had two kitchens or two entrances. Mr. Sullivan stated they have one kitchen and one main entrance. Mr. Dierckman wanted to know what would prevent McDonald's from requesting a McDonald's sign and a Quarter Pounder sign. Where do they draw the line? He felt it was a bad idea with double branding giving more signage for the same place. It is a brand within a brand. What is compelling? There is the same problem with Noble Roman's which looks terrible. Everybody will want to do the same thing because it is just more advertising to create foot traffic. Miss Boone stated the Sign Ordinance does not specifically address this double branding issue that has come up recently. This one and Noble Roman's Tuscano Sub are the only ones that have been addressed. Mr. Dierckman asked if Noble Roman's had needed a variance and had they gotten them for all their stores in Cmmel. Miss Boone stated they had. She felt they could not discriminate against the name of a company. Mr. Dierckman stated the BZA Board was not precedent setting. Mr. Hawkins asked if they were separate franchises or was it all wrapped into one franchise fee. Mr. Sullivan stated they pay separate franchise fees for the Wing Street product in their restaurant. Mrs. Plavchak asked to see the picture of the Hereford, TX store again. She thought it looked like two entrances and two separate buildings with separate signs. She understood two separate signs in that situation because it looked like two different buildings. Was it all one building inside? Mr. Sullivan stated there was only one entrance to the building. The other door is an emergency exit only. Inside is one restaurant with one kitchen. It is a cityscape building with higher posts and higher elevations. / Mr. Dierckman asked about the Castle Village restaurant. He thought it looked like two entrances; one W under each sign (Pizza Hut and Wing Street). Page 3 of 22 ! I ' Cannel Board of Zoning Appeals Regular Meeting September 24, 2007 u Mr. Sullivan stated there were two doors to enter into that location by the original design of the shopping center. There is only one kitchen and a very limited dining room with seven tables. Mr. Broach was sympathetic to the Petitioner because they are under the sign size requirement. He viewed it as only one sign. Mr. Hawkins felt similar to Mr. Broach. However, he agreed with Mr. Dierckman that it was time to take a look at the double branding for the fast food restaurants. Mrs. Plavchak asked ifthere was a way to make one sign with both names on it. Mr. Sullivan stated that by franchise agreement they had to have two separate signs designating the two different brands. Mr. Ripma asked if they were under the allowable 40 square feet or was it 24 and 24 for 48 square feet. Miss Boone stated if it were allowed on both sides, it would be a total of 48 square feet. Each frontage would be 24 square feet. Mr. Ripma asked if the one spot facing the parking lot could be a different location for another business. Does Pizza Hut have more than one tenant space in The Centre? l.J Mr. Sullivan was not involved in the initial plans and did not know. He thought it looked like one big space when he looked at it. Miss Boone believed it was one tenant space. Mr. Hawkins moved to approve Docket Nos. 07080007 V through 07080009 V~ Pizza Hut/Wing Street. The motion was seconded by Mr. Ripma and ALL were APPROVED 3-2 with Mr. Dierckman and Mrs. Plavchak casting the negative votes. 4h. Westwood Estates Buffer Yard The applicant seeks the following development standards variance approval: Docket No. 07080010 V Section 26.04.04 Buffer yard in regulated drain easement The sites are located at 2165 Renegade Court-2095 Renegade Court and are zoned SIISingle-family residential Filed by Paul Reis of Bose McKinney & Evans, LLP for Justus Home Builders, Inc. LJ Present for the Petitioner: Paul Reis, Bose McKinney & Evans. Also present were Walt Justus and Chris Miller from Justus Home Builders and Rich Kelley, the Engineer in charge of the project. This subdivision primary plat was approved by the Plan Commission in 2002. A site plan was shown. The lots for this discussion were 1 7, 18, 19, 20 and 21. Lot 17 is still owned by Justus and has not been developed. Lots 18, 19, 20 and 21 all have single family residences. These lots are on the south pOliion of the subdivision with a 30-foot utility and drainage easement. In the 2002 Ordinance, the ADLS did not require bufferyards. In the discussion approving the Plimary PIal, a lmldscape plan was required of the Petitioner as a Condition to the approval of the Primary Plat. The lots and 3D-foot drainage easement were indicated on the site plan with a 1 O-foot landscape buffer. Today that would be a Page 4 of 22 u L) G Carmel Board of Zoning Appeals Regular Meeting September 24, 2007 classification of a B landscape buffer. The site plan showed the trees that were to be planted pursuant to the agreement. The homes were laid out, the building pennits were issued by the City for lots 18, 19, 20 and 21 and the homes were completed. A site plan indicating the homes was shown. The 30-foot drainage easement was pointed out. There was no room to install the required landscape buffering. When the homes were completed, Certificates of Occupancy were issued by the City of Cannel and Justus subsequently sold all the homes to innocent third party purchasers. None of those landowners committed to putting in the landscaping. There was not a fomlal COlnmitment. This was made in the fonn of a Condition to the approval of the Primary Plat. As a consequence, when the purchaser did their title insurance it would not show any requirement for landscaping on these lots. It was to be enforced by the City in the Secondary Plat and the Certificate of Occupancy. Not withstanding that, the Developer attempted to install some landscaping. A site plan showing the existing landscaping was viewed. It is within the drainage easement. Legally these trees are not allowed for two reasons: (1) there is a specific section of the Zoning Ordinance that states perimeter buffering or trees cannot be placed inside a regulated drain easement; and (2) they need a Consent to Encroach or an Agreement Not to Enforce the drainage easement from Hamilton County. At the time this subdivision was going through, this was not a part of the City ofCarn1el. That is very important because this was the main County regulated drain that goes through the subdivision. In the process of developing, Justus had to reconstruct and relocate the Stultz Almond County regulated drain. Typicallywhen subdivisions come through, they are looking at stonn water being detained and eventually going into one ofthe County drains. If it is within the City of Cannel, there would not be any landscaping or encroachment within the County regulated drain. In this particular case, it was not within the City and the County Drainage Board basically designated the subdivision drain an urban drain as a part or "arm" of the Stultz Almond drain. A layout of (he two detention ponds, underground drains and the drainage was shown. The County retained jurisdiction of the drain. Not withstanding a recent resolution they passed which dealt with subdivision drains within the City ofCamlel, the County Drainage Board will retain authority to grant or not grant any kind of encroachments. As the Petitioner moved forward, they had been in contact with the County Attorney and messages to a member of the Drainage Board, Christine Altman who is a County Commissioner, to address this matter. A diagram was shown ofthe maximum number of plants they would need to install. This variance was asking for the right to plant within the drainage easement. They were not suggesting any specific plan because the Drainage Board and the Plan Commission may change the amount of vegetation. They had conversations with Mrs. Barton- Holmes and MI. Hollibaugh. There was concern about the amount of plant material that would be going within the space. They would also need to confer with Scott Brewer. He showed a diagram of the maximum amount ofplantings if they followed the Plan Commission requirements. He felt it was important to understand that this was not an open ditch. There is a swale and the water basically travels in the swale to drainage facilities or beehives. The proposed trees would be outside the swalc. He indicated the reinforced concrete pipe on the diagram. The trees and landscaping would not interfere with the stonn water that goes toward the beehive. On the diagram, he indicated the water now to the beehive and then underground to the detention pond. This variance is very important before they move forward. They anticipate there will be a considerable amount of time and additional expense to Justus to get this through the County. He understood that the Staff was concerned about the number of plantings. Right now there are no additional building pemtits being issued with regard to this subdivision, although the lots requesting the pern1its are not affected by this pal1icular issue. They did not feel that continuing the variance request from this meeting would assist them in the matter. They still need to go to the County. They would Ii ke to be able to tell the County that they have approval from the Cannel Board of Zoning Appeals. They understood this Board could make the approval conditional upon the Drainage Board decision and contingent upon Plan Commission approval. If they Page 5 of22 LJ u w Carmel Board of Zoning Appeals Regular Meeting September 24, 2007 do not plant all the plants, they will need to go back to the Plan Commission and show the Plan Commission that they are going to vary from what was required under the Primary Plat approval. Remonstrance: Andy Crook, 2288 W l36lh Street, Carmel. They own 20.34 acres that adjoin the southern boundary of Westwood Estates. They are the only party directly affected by this buffer. On November 19, 2002, this project, at the time known as the Villas at Sweet Charity Famis, was presented to the Plan Commission. He indicated the drainage swales along the rear ofthe property to take water from the site. They remonstrated about drainage, buffering, cOlmective street located directly into their home at the time, density, etc. They had met with Chris White representing Justus to talk about their concems. Their concerns were this type of high density development along their property line without adequate buffering. There were so many subdivisions that were being developed with higher density than the Comprehensive Plan called for that they felt their best option was to negotiate with the developer to try to get protection for drainage and buffering. On November 27, Rich Kelly sent a letter to Jon Dobosiewicz stating that he had met with the Crooks and made the cOllmlitment for additional landscape material behind the lots. The buffering diagram was shown that was approved with the Primary Plat. It showed the landscaping within the drainage easement. They were not aware of the drainage easement. They thought the 51 trees were adequate. On December 3, at the Subdivision Committee meeting presentation was made by the Justus representatives stating and highlighting as a point of selling this project, the landscaping had been increased by almost 50 percent. Back at the Plan Commission for final approval, Justus again stated the landscape buffer had been almost doubled and they had met with the Crooks who were in agreement. They were in agreement with the plan if it had been implemented. In the Primary Plat Covenants and Restrictions subril.itted by Jushls, they talked about keeping obstructions away from utility easements. With the landscape buffering, they were in conflict with their own covenants. The question has come back and forth over time if this is a regulated drain. The Primary Plat submission shows a regulated drain. After the Primary Plat was approved, the Secondary Plat went for approval at the February 19, 2003 TAC meeting. At the T AC meeting, Jenny Chapman the County Supervisor said that plantings in the drainage easement along lots 17 through 21 would need to be removed. They were informed at that time that the buffering, as it existed, was not acceptable. This was followed by a letter on February 21 from Hamilton County reinforcing that these plantings needed to be moved. Subsequent to that, he had a copy of the Secondary Plat that was submitted to both the County and the City showing that the landscape was taken out of the drainage easement and put in the area beside the 30-foot boundary. They also indicated in their application submission that there was a 10-foot allowance for landscaping. Their Secondary Plat again acknowledges that this is a County regulated drain and no structures, including decks or landscaping, would be put in that drainage easement. It is very clear they had absolute prior knowledge. They began to plant trees in the location indicated on his landscape plan. The initial trees were encroaching into the Crook's property line and electric fence for their horse pasture. Justus indicated the fence was on the subdivision property. A subsequent staked survey done by Justus proved that the fence was on the Crook property line. The trees were removed and trees were put within the drainage easement. They then built the homes right at the 30-foot drainage easement line. A diagram was shown. At least two of the homes had rear exit doors that would require the placement of a deck which would knowingly infringe into the drainage easement. He asked the Board to remember the Primary Plat Covenants and Secondary Plat statements that had been made and their behavior in building these houses. The decks were installed without building permits. Kevin Bre1111an, the Code Enforcement Officer, also measured and detennined the decks had encroached. A picture was shown of the Martin deck that encroached. Justus Builders contend this is a closed drain with a solid steel pipe, but it is a major wet area. There Page 6 of 22 u u w Carmel Board of Zoning Appeals Regular Meeting September 24,2007 would be a major concern for the type of landscaping that would go in. A copy of a letter from Kevin Brennan to Mr. and Mrs. Burns indicated the deck was in violation because it was more than 30 inches off the ground (City Ordinance) and encroached into the drainage easement (Development Ordinance). They were to petition the BZA to allow the decks to remain. He Was not aware if that had occurred. Another picture was shown as a pattern of the behavior by the developer. A storage unit was :shown with signs and other trash on the ground. There is no allowance for a storage rmit within a subdivision on a City street stub. It took a lot of effmi on the pali of Kevin Brennan to have the storage unit removed. They also had a construction trailer on the site without a peIinit. He showed a diagram ofthe "As Built" plan with 24 trees planted as of September 23, 2007. They had committed to 51 trees. After some heavy remonstration by Westwood homeowners on a development when they were under contract, he began to investigate what was going on. He infornled Walt Justus in July 2006 of his concern that the buffer had not been installed. In the "As Built", one tree had beell dead for a 1011g time and been removed, one tree had been planted by a homeowner, one tree does not appear to be a maple and each one of the "x' s" lmderneath the maples indicates severe signs of sickness and disease. These trees have not been maintained like the other trees in the subdivision. He pointed out the wet area which would cause problems for the landscape buffer. The "dead" Norway spruce within the wet area had very low tolerance for moisture. A picture was shown that was taken last week. There has not been significant rainfall and there was not significant drainage in the area. He wanted to know where all the pipes, coming out of all the downspouts from the rain guttering on the homes, was going. Piping is shown going into the ground and no exit is shown. This runoff water is contributing to the issue of standing water. He stated there is a very significant elevation difference between the subdivision homes and his property; not level as the developer indicated. Who is responsible for the maintenance of these existing trees that are showing signs of sickness? Tn their Covenants and in their Secondary Plat, Justus stated the homeowners would be responsible for maintaining no obstructions in tills area. A picture of the "blocked" beehive in the open space area was shown. It is to be maintained by the homeowners association, which is reatly Justus until it is turned over to the homeowners. A picture was shown oftheOood level from the spring rains. It is a low area on his property and there is pooling, but this situation has dramatically increased the flow onto his property. He felt there was a pattem of behavior that was ongoing. A picture taken September 23rd of the "clogged" beehive was shown. Another ongoing issue with the developer has been the lack of erosion control and they have been sited for that in the past. Lot 17 is the re-Iocation site of the construction building, after a permit was obtained. It is being used for storage of junk. Erosion was pointed out on Lots 17 and 18. He felt any plans needed to show the reality of the correct elevation. Part of the commitment for landscaping and buffering was a benn. The berm was not installed. The landscaping buffer was actually below the ground level elevation of the homes. They were told in their Secondary Plat that the berm would need to be increased, but it was not done. The City did cite them for the berm not being in place. More pictures were shown of the Stultz Almond drain. Any damage to the area will create a problem for all the adjacent homeowners. Also missing was the progression of actions that have occurred to get to this point. There have been a lot of emai Is and City site inspections as he began to prosecute his concern about the landscape buffer. There was a letter sent on the 22nd from Mike Hollibaugh to Justus citing the missing berm and the missing landscape. Mr. Hollibaugh's goal was to get something resolved in 30 days. That came and went. May 2nd Kevin Brennan sent a letter reviewing those points and stating he wanted to see a timeline by May 15th. The City said they would cease giving building permits. The City did invoke that. On August 2nd Justus was cited by the City for citations on lack of compliance for Subdivision Control Ordinances 8.01, 3.01.01 and 26.04.01. A Court date was set for September 11, 2007 and a continuance was requested by Justus and granted. There are legal issues involved to finally get Justus to the table. He felt there had been devaluation of his property. There is the equivalent Page 7 of 22 i ' u u u Cannel Board of Zoning Appeals Regular Meeting September 24, 2007 density of 3 units per acre. Developers discount the value of his property based on that density and the cost of effective buffering. Developers have estimated $35,000 to $45,000 for the buffering and that is the amount being taken offhis property. It has had a major impact on the marketability of his property. Havi ng to do all this work has created a lot of mental and emotional issues for him and his wife as they have petitioned the City and generated this evidence. As the variance stands, he does not find it acceptable. He felt they made a commitment to him, the City, the Plan Commission and the citizens to put in and maintain buffering in such a way as to enhance rather than detract from the City. He felt no action on this variance should be taken until the following things are done. Jurisdiction over the regulated drain clarified. He knew representatives from Justus have spoken with Greg Hoyes with the Surveyor's Office. He had spoken with Mr. Hoyes twice and was told that under no conditions was it anything but the County's regulation. There should be a meeting of the affected parties, including the Hamilton County Surveyor's Oflice, the Drainage Board, the Plan Commission and Rick Sharp the City Councilman, as well as him and his wife. Due to the lack of cleating the obstructions from the beehive at the west end ofthe drainage and lack of erosion control, he was asking that an independent third party inspect the current condition of the drain pipe to determine what, if any, level of siltation has occurred. If so, it should be cleaned out at Justus' expense. A drainage study needs to be conducted to determine the viability ofplantings in the drainage easement. This should include the impact of roots on the drain pipe installed. He does not accept that they say it is a closed pipe and it will not have any impact. Why is the County so concerned about landscaping? He wanted to know where the runoff pipes go. Strong consideration needs to be given to requiring additional beehives in the drainagc easement to clear excess water, specifically the current beehives that were shown in the pictllres. Also the size, both height and diameter of trees to be planted, needs to be stated. Due to the elevation differences, he felt the minimum of the trees should be 12 feet in height. He felt that any existing trees that are under duress need be replaced and be at least equivalent to the size and the growth that has occurred on those plantings in the subdivision that have been maintained. Responsibility of ongoing landscaping care and maintenance needs to be stated in this variance. He does not know ifit is Justus, the homeowners association or the individual homeowners. He does not have confidence that the homeowners will put the effort in to maintaining the trees. As the adjoining landowner, he wants assurances that this buffer will be put in and maintained. He felt Justus should be required to put up a performance bond to insure the work is done. Then the City could execute that to get the work done. He wanted a minimum five-year prepaid maintenance and replacement agreement to insure the work is done well. He felt the City Forester should be asked to provide an annual inspection ofthis buffer. Consideration should be given for planting materials to provide year round effective shielding from the Westwood property. Deciduous trees are nice during the summer, but they provide very little buffering the other times of the year. The original plan had Austrian pine. There are none in the plans now and he would hke them back in because of their buffering capabilities. The bem1 conmlitted to should be put in and landscaping should be added to that benn. A picture was shown of the fullness of an Austrian pine which prefers soils that are moist and well-drained, but adapts to heavy clay soils that are moist and at times poorly drained. That tree would have a better opportunity tllan the Nonvay spruces. This information was from the Ohio Department of Natural Resources. Its only requirement is not to be sited in wet soils where it will quickly die. Under no conditions should Justus be given a relief of responsibility for the buffer commitments they created. If the landscape is not allowed in the drainage easement, they should be required to build a buffer fence. He had spoken with Christine Altman about this. The County is less concerned about structures than they are about landscaping. If they cannot come to an agreement about the landscaping which he prefers, then they should be required to install a stone masonry fence to a height sufficient to provide buffering from the Westwood Subdivision. They did receive their certified mailing. However, he showed the public notice sign on the propcl1y which Page 8 of 22 G u u Cannel Board of ZOlllng Appeals Regular Meeting September 24, 2007 was blocked by the construction trailer and houses. A lot of residences could not see it. He felt it was representative of the type of behavior they have been dealing with. Justus made a point that this was not part of the City. However, the area was under ajoinder agreement with the City to provide zoning and planning. That is the reality. He requested the variance not be granted until they had dealt with all the issues. Rebuttal: Mr. Reis was given five minutes. He appreciated Mr. Crook's work gathering all the infornlation. However, most of the infornlation is not what is before the Board at this meeting. They were not here to discuss violations. They are in the City Court over that. They were simply asking this Board to consider a variance in order to put sOlne type of landscaping within the drainage easement. If they do not get the variance, there will be no planting and no buffering. There will be nothing put there. They are going to the County. He has confirmed that it is a County drain that cannot be turned over to the City of Carmel. That is a complicated distinction. They were not talking about decks or anything else that had occurred. They were not tallcing about the adequacy of drains or tree selection. All that will come in due time. This is step munber one to see if the Board of Zoning Appeals feels that there is a situation where a variance needs to be granted. The people who bought lots 18, 19, 20 and 21 have no legal obligation to install anything. In fact, they can't. From the correspondence Mr. Crook had, it said to please remove the landscaping. Until the County Drainage Board allows it, all the trees need to go away. If they get this variance, they will go to Hamilton County. They may not grant any kind of right to put anything in that easement At that point, he was not sure legally where they would go. He has had numerous discussions with Mike Hollibaugh and with Tom Perkins, the Assistant City Attomey, trying to figure out where they go from there. Legally there is no place to put any trees. To suggest any thing else, they would need to go back to the property owners and discuss that. He understood this was a very unusual situation. Notwithstanding all the other issues they could talk about, they are simply asking this Board to consider a variance to allow them to put landscaping within the easement. The ultimate landscaping will be approved by the County Drainage Board and the Cannel Plan Commission. As far as how that landscaping will be preserved and maintained, that is part of the ongoing obligation ofthe Department of Community Services and the Code Enforcement. If there are dying trees, for whatever reason, it will be addressed. How the drainage works and whether trees are allowed, the County Drainage Board is going to look at that and may say the trees calmot go in. To conclude, they were simply asking this Board to consider the ability to put landscaping within the drainage easement. The Public Hearing was closed. Mrs. Barton-Holmes gave the Department Report. The fundamental issue is that landscaping is required by the City Ordinance, but there is no room for the landscaping. The houses were built on the easement line. The 30-foot drainage easement which is part of a regulated drain, is not supposed to have any landscaping in it to be able to provide access. The drain is both a closed drain and functions as a drainage swale with the beehives at either end. The ongoing Staff concern is with the nature of screening to be provided. Several of the tree species suggested in the landscape plan provided by the Petitioner do not do that well in the type of environment being provided and would also potentially, if they survived, grow quite large. The yards of the houses in question are not very deep. They are pretty steeply sloped. If there is too much landscaping with too many tall trees immediately adjacent to the houses, within five to ten years, they would lose most oftheir access to daylight on their southern exposure. Another concern is because of the grade change between the houses in question and the Page 9 of 22 u u u Carmel Board of Zoning Appeals Regular Meeting September 24, 2007 property to the south, there has to be some sort of adequate screening which is made more difficult by the grade change which is about ten to twelve feet. The Department recommended that discussion continue between the Staff, the Urban Forester, the County Surveyor's office and the City Engineer's office. They also suggested differeilt species and different types of plantings, perhaps more of a foundation planting with a mixture of shrubs and trees. Shrubs typically have a shallower root system, so they woold be easier to remove, if need be, to provide access to the drain. An example of foundation plantings was distributed. Essentially they did believe there was some sort of equitable and efficient solution for everyone involved. They are just not quite there. They recommended continuing this Petition to the October 22 hearing to give more time for all the parties involved to meet and discuss and try to work out some sort of solution that will provide effective screening and access to the drainage swale and meet the letter of the Ordinance. Mr. Dierckman asked ifit was always plamled to have these homes 30 feet offtbe property line. Or was it surveyed wrong or how did they get this close to the easement? Was it known there was a 30- foot drainage easement with a 1 o~ foot landscape buffer? Mr. Reis stated the 30-foot closed drain is set by the County. That is statutory and actually set by the State. That was 40 feet offthe lot line. If it had been done correctly, there would have been the 30-foot drainage easement and 10 foot buffer. The decks would have been in the I O-foot buffer. There are a couple of things which are not germane at this meeting. But they would have needed an encroachment. Mr. Dierckman felt a continuation was the right thing to do until they have a landscape plan. Especially one that can grow in a soggy environment. Mr. Reis stated they were not asking the Board of Zoning Appeals to approve a landscape plan. Most likely they will be back at the Plan Commission which is where this Condition was created. There was no buffering requirement in the Ordinance at the time of this subdivision. It was a Condition for the Primary Plat. Mr. Crook wanted screening and they said they would plant the trees. Tonight they wanted the variance to allow landscaping within the regulated drainage easement. The Board of Zoning Appeals generally does not approve landscape plans. If they come back for approval, typically the BZA would say the landscaping has to be per the Plan Commission approval. They will go to the Plan Commission, but before that they will go to Hamilton County. The point is that the variance is to allow landscaping within the drainage easement, not an approval of any specific landscape plans, but the ability to investigate putting landscape there. Mr. Dierckman stated they would be giving approval to put landscaping in the drainage easement. My. Reis stated it would be subject to Plan Commission approval. Mr. Dierckman stated that a lot of people will say the Board agreed and condoned it. He did not know of any landscaping that grew well in a drainage ditch. To be of the right mind while making the decision, he needed to see a landscape plan that could actually grow. Mr. Reis stated that the only landscape plan he could present at this meeting was what was required. He has no legal authority from the Plan Commission to give anything different. They are asking for the right to put some kind oflandscaping subject to the approval ofthe Plan Commission and the HanliIton County Drainage Board. Page 10 of22 u u u Carmel Board of Zoning Appeals Regular Meeting September 24, 2007 Mrs. Plavchak felt confused.. They were asking for a variance to put plantings where it has already been determined they are not allowed to put plantings. Whoever regulates the drainage and the swale (the County) has already said they cannot plant in a drainage area. Why would the Board even consider saying that they can? That did not make any sense. The County, whose job it is to maintain drainage and to make sure the drainage works for all the people who live around there, not just Justus, has already said that it is not in the best interest to put plants in the drainage area. She felt it was absurd to even ask for a variance for something the County has already said they cannot do. Mr. Reis stated they were trying toput some type of screening on the back of the lot. They have not gone to the Drainage Board. They have had conversations with the Hamilton County Surveyor. The Hamilton County Drainage Board is made up of three people who are County Commissioners. They ultimately make the decision. Conversations have been with Greg Hoyes in the County Surveyor's office and Kent Ward. They are attempting to say they would like to provide some screening and they know there are a lot if issues with regard to that screening. Maybe at the end of the day, they cannot plant anything. But they had to start somewhere. There is now an Ordinance on the books that says you cannot put landscaping in a regulated drain easement. So ifhe gets the County to approve it, and he does not have the BZA variance, then they will not plant any trees. Mrs. Plavchak was bothered that Justus knowingly put these houses in the wrong place on those plots. Everybody else has to jump through hoops to accommodate them. She was thinking Justus knew where the 3D-foot easement was and they knew they were supposed to leave a 10-foot landscape buffer. Then they still put the houses right on the edge. What do they care now? They already have their money for those houses. Now the Board is supposed to feel sorry for the people who live in those houses that unknowingly bought into this. She did feel sorry for them, but at the end of the day Justus created this problem. They knew what was going on and knew where the lines were. They knowingly put the houses where they were not supposed to be located. Now everybody else has to come up with a solution to make everything better. Justus ought to fight this one themselves. She felt son)! for the people who own those houses and the adjoining landowners. But she failed to see why this Board had to jump through hoops to try to make it better. Justus has to figure it out If they have to tear down the houses and rebuild them forty feet forward, she did not have a problem with that either. Mr. Ripma asked how long Justus had been building homes and how many homes had they built in how many communities. They did not check this before they started building these homes. Walt Justus, 1398 N. Shadeland Avenue. They had been in business 97 years and built thousands of homes in many communities. Honestly, they made a mistake. They have tried to cooperate with everybody since this has been brought to their attention. They by no means did this intentionally. They have worked with Mr. Crook from the "get go", not only through the purchase of his land but through the negotiations on this. They messed up. They had never been in a position like this and had never been taken to Court. They have never had to deal with anything like this having to do with landscape or otherwise. It is an unusual predicament. Mr. Ripma asked if any of the homes they had built in this conullunity had room to plant ten feet behind them. Do any of the homes fit on these lots and still give the ten feet for landscaping? Mr. Justus confirmed they did. Page 11 of22 lJ l.J u Carmel Board of Zoning Appeals Regular Meeting September 24, 2007 Mr. Ripma asked why they did not build those homes on these lots. He had spent eleven years with a builder. He understood the building industry. He had seen builders build intentionally in the wrong area and he believed that was exactly what happened. Justus sold what they could sell on those lots. They knew there was a ten-foot easement. It is absolutely mind-boggling for a company that has been in business a hundred years. There are homeowners in the middle of this which is completely unfair. They have got to do something. Mr. Reis said they just won't put in landscaping. But it was a requirement of the community. It was an agreement. Mr. Reis is the same guy who is going to come back and say "legally, legally" because it is very legal with Mr. Reis. Mr. Justus stated they had just started putting landscaping in the rear of homes in other communities in the last few years. When they started Westwood Estates, they had come up with the majority of the landscaping themselves. Through negotiations with the City or whomever, that got adhered to and added upon. Putting trees in the back of homes that back up to a horse fann was something they came up with. They have added additional trees and extensive landscaping more in this community than anywhere else. When they came to Cannel to build their first community, he wanted to make it something speciaL. They put themselves in this predicament. When they designed the homes, they went through the process of designing them to make sure they fit within the building pad. They made sure when they submitted them to their engineer, they reconfim1ed that they fit within the building pad and did not encroach. Likely when they built the homes they went back and planted that landscaping in the rear of these homes as plmmed and they ended up in the drainage easement. Honestly this would not have been a problem if Mr. Crook had not brought it to their attention. Now they are here, they have to contend with it. He apologized. It just hit him over the last few weeks on the extent of what this entails. This has been going on real actively since late Mayor early June. They have not been able to pull building permits and have been placed out of business at this location. This became a real problem for them the day they could not pull building pennits. That is over six lots of landscaping in the back. Not to make light of the homeowners who have had to go through this, but for that they have been put on hold. Right, wrong or indifferent they have been put out of business. That is their punishment. Mr. Ripma asked Mr. Molitor if the City could fine them for this. Mr. Molitor stated there has been a case already brought, as refelTed to earlier, by the City against the developer for violations of three sections of the Ordinances. That is the case that is pending in City Comi that was scheduled for September II, but has been continued. That would be for fines for violating City Code. Mr. Justus stated they have always operated under the premise of trying to do what is right He had never been sued and never been to Court over a house or subdivision that has been built in non- compliance. They want to do what is right. With the planting as-builts, studies, attorney fees, etc. they have upward 0[$30,000 in expenses and they are not done. He was prepared to continue to make it right, including planting additional trees or whatever it might be. It was a question of how long they would be penalized. They needed to get back in business, Mr. Ripma understood but he did not know how they would make it right. Mrs. Plavchak made a recommendation from Mr. Crook's presentation. The open drainage ditch is a health hazard. There is a horse fann with lots ofnies. There are lots of mosquitoes. West Nile virus is in Hamilton County and a lot of other counties in the Midwest. An open drain with open standing Page 12 of 22 Carmel Board of Zoning Appeals Regular Meeting September 24, 2007 u water is a breeding ground for mosquitoes and for disease. She felt someone from the State Board of Health should be involved on the committee who looks at the drainage easement. With standing water that close to a bunch of houses, there would be a ton of mosquitoes. It cam10t be allowed to be there. The State Board of Health should be involved. Mr. Broach was inclined to follow the Department recommendation to table this for another 30 days. By that time they may have County approval and may have a landscaping plan that agreed with the City Forester. There may be more information for the Board to take action. He was favorably inclined on this because it should be fixed. But he did not know if it was right for the Board to decide at this meeting. Mr. Hawkins asked when this development started and when were these homes constructed. Mr. Justus stated they opened the models two years ago and these homes were constmcted within the last two years. Mr. Hawkins asked about the street stub. Was there an agreement or option to purchase the Crook's land at some point to expand into it and has that option expired? Mr. Justus confinned they had an option that had expired. They did not come to an agreement. Mr. Hawkins asked if action by this Board would affect the Court case. u Mr. Molitor stated if the variance was granted then the Court case with respect to that section of the Ordinance would go away. The Court case has cited three sections of the Ordinances. This variance relates to one of those sections. It would make one ofthe three counts of the City's case a moot point. Mr. Reis clarified the tlu'ee sections cited. The first section says that if they violate a section of the Ordinance, they are in violation. From talking with the City Attorney, they cannot violate the section that creates the violation. The second section says failure to put in a bufferyard is violation of26.04. At the time this subdivision was approved that section was not on the books. The section they are in violation of and subj ect to fines is that in the approval of a Primary Plat the Plan Commission can require certain improvements to be made as a condition to the approval of the Primary Plat. That is exactly what they have, In oi"dcr to get the Primary Plat approved, the Plan COl11l11ission felt there needed to be some buffering. That is the violation. If the BZA continues this or does not grant the variance, it really has no specific impact on the City Court case because a Condition was made to the Plan Commission. They will be dealing with the Plan Commission at some point. That was his legal take. Mr. Hawkins' concern was there was a three-year process, they were in Court and nothing was really being done. He thought it would behoove them to table for 30 days to see what they could figure out, rather than taking a vote at this meeting. It was up to the Petitioner if they wanted to press for a vote. u Mr. Reis felt the Board members would like to continue the matter. There are a lot of issues and he understood the members were uncomfortable. A lot of these issues will be handled at the County level. It will most likely be more than thirty days before they come back to this Board. This may end very quickly if the Drainage Board does not allow the plantings. Page 13 of 22 Carmel Board of Zoning Appeals Regular Meeting September 24, 2007 u Mr. Hawkins asked about the remaining lots that were unimproved. How will they be able to build a like or comparable home to the other homes? He wanted to make sure for the people who have purchased these homes that the undeveloped lots will support what is already there. Mr. Justus stated there are 35 other homes in the subdivision and there is only one other lot that adjoins this drainage swale which is lot 17. He stated they maintain the swale regularly. As homes are constructed and the back yards are graded, it is very cornman for settling to take place, especially with rain and seasonal changes. They have never been one to let someone set with water in their back yard. If called, they do address those problems. As far as the beehive being covered, the site is under construction and that could have been a piece of constmction debris. They have never run into a problem where water has backed up i11to homes, leaked over onto adjoining land or anything like that. That is why these subdivisions are engineered the way they are, so they drain right. Any type of problem is easily fixed. Mr. Hawkins asked if it was continued or tabled provided the Petitioner is in agreement. My. Molitor did not quite hear a formal request for a continuance. But if the Board wished to continue it to the next month's meeting a motion would be in order. Mr. Broach moved to Continue Docket 07080010 V, Westwood Estates bufferyard. The motion was seconded by Mr. Hawkins and APPROVED 5-0. u 5-6h. North Meridian Medical Pavilion - Signage The applicant seeks the following development standards variance approval: Docket No. 07080011 V Section 25.07.02-10 Number of signs facing ROW - Bldg. A. Docket No. 07080012 V Section 25.07.02-10 Number of signs facing ROW - Bldg. B. The site is located at 12188 N. Meridian St., and is zoned B-6. Filed by Doug Staley, Jr. of Staley Signs. This item was TABLED to the October 22, 2007 meeting. 7h. Skin Sense Spa, Old Town The applicant seeks the following use variance approval: Docket No. 07080018 UV Appendix A - Use Table Personal service uses in the R2lResidential District The site is located at 411 First Avenue NW and is zoned R2/Residential Filed by Mina Desai-Patel, Skin Sense Spa u Present for the Petitioner: Sanjav Patel and Mina Desai-Patel, 14698 Drayton Drive, Noblesville. A site plan was shown. It is presently a singe-family dwelling. Mrs. Desai-Patel has been operating a salon/spa at 39 W. Main Street for the past three years. Due to growth and also to prevent her clients from dealing with the Main Street congestion, she wanted to move out of the area. This property came up for sale from Mr. Bill Wiggam (in the audience). They need the Use Variance approval for this property in order to move the salon/spa to this location. They have no plans for exterior modifications. It will require some interior modifications. There will be minimum traffic impact. Page 1401'22 Carmel Board of Zoning Appeals Regular Meeting September 24,2007 U Members of the public were invited to speak in favor or opposition to the petition; no one appeared. The Public Hearing was closed. Mrs. Barton~Holmes gave the Department Report. The requested use would be a low intensity use in an area where there are similar uses. There is a bed and breakfast north of the property and several offices located along North Range Line. This property is one block in from Range Line, but there is still a mix of uses. Since the exterior of the house will not be altered, it will maintain the appearance of a house. Because it is in an area of mixed uses, the Department recommended positive consideration. Mr. Hawkins asked about the two signs that were shown on the site plan. Mr. Patel stated they would need to get a sign permit. Mr. Ripma asked about a parking issue. Mrs. Barton-Holmes stated tbere was parking available in the garage. The driveway is fairly deep and there is on-street parking on 4th Street and I sl Avenue NW. She thought the parking on 1 SI Avenue is limited primarily to residents. On her site visits, there did not appear to be a lack of street parking. Mrs. Plavchak asked what kind of services would be offered, how many clients would be using the salon and spa at the same time and the number of employees. u Mrs. Desai-Patel is currently the only employee. She has a massage therapist that comes in if a client requests a massage. Mrs. Desai-Patel is there full time. The massage therapist is usually there once a week. There is only one client at a time. Mr. Broach moved to approve Docket No. 07080018 UV, Skin Sense Spa, Old Town. The motion was seconded by Mr. Hawkins and APPROVED 5-0. I. Old Business 1-91. Uptown Partners, LLC GUilford Road The applicant seeks the following development standards variance approval: Docket No. 07070044 UV Section 18.01 Permitted uses in the B7 District Docket No. 07070045 V Section 18.04.02 Minimum front yard Docket No. 07070046 V Section 18.04.03 Minimum side yard Docket No. 07070047 V Section 18.04.04 Minimum side yard aggregate Docket No. 07070048 V Section 18.04.05 Minimum rear yard Docket No. 07070049 V Section 18.04.06 Minimum lot width Docket No. 07070050 V Section 18.04.07 Minimum lot size Docket No. 07070051 V Section 18.04.09 Maximum lot coverage Docket No. 07070052 V Section 18.06.02 Areas to be landscaped The site is located at 531 South Guilford Road and is zoned B7/Conunercial Filed by Jim Shinaver of Nelson & Frankenberger for Uptown Partners, LLC. u Page 15 of22 u u lJ Carmel Board of Zoning Appeals Regular Meeting September 24, 2007 Present for the Petitioner: Jim Shinaver, Nelson & Frankenberger. Also present were Justin Moffett and John Hefton from Upton Partners, LLC, and Jim Shields, the civil engineer from Weihe Engineers. These items were presented at the August 27, 2007 BZA meeting. He summarized the proposal for the members who were absent from the August meeting. He also explained the changes they had made to the proposal. The parcel is approximately 6. I acres. Aerial photographs ofthe area were shown. The parcel is surrounded by different types of uses; apartment complex across the street to the west, condominium development to the south and north and east are single-family detached homes subdivisions. A church office is currently on this parcel. The Use Variance and Development Standard Variances are to develop a single-family detached home community in B7/Commercial Zoning. The development will be named Kousa Street Cottages. The community has been designed for the empty nest demographic for buyers who desire to scale down fTOm larger homes into a ranch style with a main level master bedroom. The proposed homes are anticipated to have an average base price range of $250,000 to $275,000. All homes will have patios. They will have the potential option for screened in porches and an option for basements and/or lofts for additional storage space. As they are designed, the homes will have two-car garage capacity. The driveways are designed to accommodate parking for two additional cars. At the last meeting a rendering was shown and a list of potential B7 uses for this site. Generally those uses could include retail office uses and multi-family uses such as townhomes, condominiums or for rent apartments. They have estimated that without a rezone and pursuant to B7 Zoning, they could probably develop 50 townhomes on the site. Instead of developing the real estate for what is permitted, they desire to develop the single-family detached residential community targeted to empty nesters. They felt that type of community would be more consistent with the types of residential uses that surround the parcel. However, the B7 Zoning does not permit the single-family detached type of use. In order to adequately develop the real estate for a single-family detached type of product, it requires the Developmental Standards Variances since the B7 standards do not contemplate that use. More details on all the variances are in the Staff Report and the Packet ofinfornlation. The B7 Zoning would not permit this type of project without the variances. A revised site plan was shown. In the Packet of information was also a more detailed Development Plan, Primary Plat, street detail and lighting plan. The original proposal in August had 33 living units. They have eliminated two units. By eliminating the two units, they were able to create additional bufferyards to the south and create more open space near Lot 17. This revised plan would have about 20 to 21 percent greenspace, including the pond area. They were able to enhance some of the internal connectivity for the site via the sidewalks. He also pointed out the way the homes would appear. The homes on Lots 1-10 are adj acent to Guilford Road. The fronts of those homes would be facing Guilford. The backs of the homes would have the garage access. From the landscape plan they could see the sidewalks running along Guilford Road and up to each unit and the garage entry in the back of each unit. Home sites 11-17 would front onto the internal pond. The garages would be accessed from the internal road. For people to go into the front door there would be sidewalks to the front of each unit. The same for lots 25-31, the fronts would be facing the pond with sidewalks connecting the units. For lots 18-24, the front would face the internal street. Behind Tab 6 in the Packets was the landscape plan. A revised landscape plan, based on the elimination of the two lots, was distributed. This plan was distributed to Scott Brewer and the Staff earlier in the day. With the elimination of the two units, they were also able to preserve more of the tree area on the southern portion of the site. They were able to add additional landscaping to the south of unit 11, to the south oflot 31 and to the extra common area north ofIot 17. They have tried to preserve as much of the existing tree area as possible. They have continued to work with Scott Brewer on that plan for review by the Plan Commission. The project also includes additional plantings along the northern property line, eastem property line, along Guilford and intemal on the site. The landscaping plan for the individual units was shown. The different building elevations were shown Page 16 of22 u u u Carn1el Board of Zoning Appeals Regular Meeting September 24, 2007 with their architectural detail, trim detail and window treatments. The full architectural details would be reviewed at the Plan Commission review process. The homes have been designed to have a charm for the empty nesters and fit with the uses sun-ounding them. A photograph of a similar community in another state was shown. These variances would be the first stage for this process. Pending approval of these variances, they would be required to go to Plan Commission for a complete review of the project for details, elevation, landscaping, architecture, etc. The approval of these variances would allow them to go to Plan Conmlission with this concept for approval. They felt that a single-family detached residential community would be more appealing than the potential uses that would be permitted in the existing B7 Zoning. Since the last BZA meeting they have worked to reduce the unit count, create additional bufferyard areas to the south and will continue to work 011 the issues with the Staff during the Plan Commission process. Justin Moffett will explain why they are presenting this type of project compared to the type of project that could be placed on the site. Justin Moffett, Uptown Partners. He and his partner John Hefton had a keen interest in bringing new concepts and development to Carmel. Cottage communities like this, that have not been done before, supply an underserved market. They felt empty nesters would be the ultimate buyers of these types of homes. When the site went on the market in March or April, they had confidence in writing an offer because the underlying B7 Zoning has a multitude of uses. They felt they could come up with something for the site, if the cottage concept did not work. As they drove up and down Guilford Road, they felt there were too many townhomes on that street. They did not want to face that competition. They decided early on that they wanted to go in a different direction. In April or May he had a chance to meet with Mike Hollibaugh and the Mayor to discuss the site. They had their Weihe engineers put together a conceptual site plan considering the bufferyard and the underlying requirements ofB7. They came up with 40 townhome pads and 15,000 square foot two-story buildings. In general, it fit the idea of B7. The reaction when he met with Mr. Hollibaugh and the Mayor was that they wanted to see something different that appealed to empty nesters. Something with main level master bedrooms and they have accomplished that. These collage communities are on the east and west coasts. Many do not have attached garages, but have shared parking areas and walk several hundred feet to their homes. There is an appeal for living in small low maintenance cottage communities. They felt tbis site would be great for that type of product. They feel this is a good site for development. They will continue to make adjustments and fine tune it as they work through the Plail Commission process. Favorable: Ron Koster, President of the Timbercreek Homeowners Association. He had spoken at the previous meeting. When they look at Guilford, they see the businesses to the north and south. They do not want more businesses just north of their development. There were two other residents in the audience. He could not speak for all the residents, but in talking to them most ate very favorable to this project. They would like to see some homes there. The changes that were made to the buffering were very appealing. Probably two-thirds of the trees are on the north side of their property and are a good buffer. They were very much in favor of the project. Unfavorable: Micah Kinnaman, 438 Oak Drive. He shared a letter on the overhead from his neighbor, Manuochehr Hourmozdi. It was a reiteration of his presentation at the last meeting. The church had promised not to sell the land for commercial purposes, retail, wholesale or otherwise. The church promised to build only a monastery for the Church of God. He was there when they promised to bring art, beauty and goodness to the community. He wanted the church to keep their word with them by bringing art, Page 17 of22 w u u Carmel Board of Zoning Appeals Regular Meeting September 24, 2007 beauty and goodness to the community rather than just profit. He wanted to publicly acknowledge Mr. Hefton for his integrity and authenticity in this matter. Mr. Hourmozdi is committed to having it work for everyone without anyone being left out. On his own behalf, Mr. Kinnaman showed pictures of the existing tree line along the east side. One of his major objections to tbe plan is that the interior access road goes right into the back of his property and the back of his house. He has concerns about the removal of the trees in the development of the property. Then the lights and noise that goes with it. He wanted the full grown tree line to be considered. They purchased this particular home because ofthe open greenspace behind it. They felt there was room in the site plan to incorporate some more greenspace and buffering along Helen Keen Drive and along Oak Drive. Rebuttal: Mr. Shinaver appreciated Mr. Kinnaman's and Mr. Houffi10zdi's approach and professionalism in this matter. They understood their concern about some of the existing tree line. They will continue to work with Staff and the Urban Forester for the ultimate landscape plan that would hopefully be approved for this site if they are able to get through the BZA process. The site plan was shown again. They could also look at the location ofMr. Kinnaman's home when they establish the location of the interior access road. It could be offset. in such a manner that lights would not be going directly into any existing majority portion of the building. They could look at that as they go through the Plan Commission process. They could talk to them about the landscape plan for that portion of the site. If the landscape buffer is such that it prevents them from putting in a significant amount of trees, there might be room for some plantings in their yards to provide additional screening. They would have time to do that as they go through the Plan Commission process. There were discussions about promises made by the Church in the past. As the last meeting there was discussion of some Covenant that was entered into around 1985. The Covenant was running with the land and that was recorded. It talked about the fact that the land and the premises shall not be llsed for any regular c0111ll1ercial purpose either retail, wholesale or otherwise. First of all, that Commitment does not prohibit single family detached residential development. That Covenant would prevent multi-family uses, office uses, institutional or educational uses, not cultural or entertainment uses. That Covenant was ultitnately vacated. He believed it went through a process with the Board of Public Works where it was considered and vacated. He thought that was the Covenant the neighbor, Mr. Houffi10zdi, was referring to. Even if it was relevant to this discussion, it does not prohibit single family detached residential use. Based on the discussion at the last meeting, they also went to a representative that is working with the church to confirm and look internally within their office if they were aware of any other promise or written agreement otherwise separate from the Covenant just described. They did not find anything or have any recollection of any other such agreement. He felt the Covenant was not relevant to this situation. The Public Hearing was closed. Mrs. Barton-Holmes gave the Department Report. As noted by the Petitioner, the site plan has been modified and reduced the lots from 33 to 31. This does somewhat relieve the Staff concern with the buffering along the south property line. One point to emphasize is that if the variances were approved, they would just allow the maximum possible development on this site. It would not tie the Petitioner, the BZA or the Plan Commission to this particular site plan. As the Petitioner said it could still be a work in progress. The Depa11ment had a number of suggested considerations or possible conditions when it gets to the DP/ ADLS stage. They would include installing some sort of pervious concrete or permeable pavers along the access drive along the east. This would both allow greater percentage of the vegetation to remain and to be able to survive tbe construction. It would also alleviate some of the Page 18 of22 u u u Carmel Board of Zoning Appeals Regular Meeting September 24, 2007 drainage concerns. They would also suggest that the pond undergo some redesign. When the landscape plan is submitted it should include the pond with some naturalist features, like reed beds that would help filter the water as it passes through the site, They want to see a detailed tree preservation plan. Given the fact there is a wetland on the site, it may need to be a two-part tree preservation plan with one section for the wetland and one section for the rest of the site. As far as the buildings, to help break up the site, they would request that the elevations not be repeated from one lot to another. A certain minimum have front porches, to be detern1ined at some point, to break up the building pads and linearity at the site. They would need an engineer's site and landscape. plan. From the site plan submitted at this meeting, it looks like some of the patios are possibly encroaching on the minimum front yards. One of the variances that isinc1uded is reduction of side yards from a minimum of ten feet to three feet and an aggregate from 25 feet to 10 feet. The Department does not have any concerns overall with the project and the nature of the request ofthe density on the site. It is in an area that already has a number of pretty dense residential developments with the condos to the south and the apartments to the west. There are a number of Development Standards Variances being requested but they are consistent with the nature of the proposed development creating a small walkable cottage community. The concerns are essentially with refining the site and continuing to work with the Department and the Urban Forester to preserve as many of the trees as possible and provide a more naturalistic detention pond and adequate buffer on the east and north property lines. Ten feet is the minimum required buffer between residential uses, so in that sense the ten-foot buffer request is appropriate. They would like to see a little more creativity because there is already a heavy existing tree line. They would like to tweak the site a little and add porous pavers, etc. The Department recommended positive consideration of the requests. They had recommended negative consideration of the bufferyard request, Docket No. 07070052V. The concerns with that have largely been alleviated with the reduction by two lots. That is something they would like to continue working on with the Petitioner as it goes through the DP/ADLS process. Mr. Broach thought it was very creative and he liked what they had done. He was in favor ofthe use and all the variances except for the landscape buffer. He had concerns on the east side. Would going from 30-foot buffer to la-foot buffer be enough to preserve trees? They would be delegating a lot of responsibility to the Plan Commission and to the Staff to make sure that was done well. He wanted to make sure they were properly screened. Some of the other members have design issues, but those are more properly addressed at Plan Commission. Mr. Moffett stated on the site plan they have a fence along the east side to help screen the site. It was complicated as they designed the site to make the [TOnt doors face Guilford Avenue per a design request. That layered the site design all the way to the back. It determined how the rest of the houses were positioned. They had a debate over the pine tree line. As policy, they had met with the surrounding property owners to get insight and to make them aware ofthe project. Almost everybody he talked to along the north was okay with the site plan and no one had remonstrated. There is sllbstantial buffer to the south. The bigger question is the east property line. Two or three of the neighbors they spoke with along the east wanted the tree line removed. They said it was not a weIl- planned buffer. Pines trees too close together over grow, then one dies and they have a blank spot. Some ofthe southeast tree line was dying. They felt the fencing and new trees that were correctly spaced would make an adequate buffer. It is not a forest now and the pine trees are about 25 years old. They are large, but they are all grown together. Page 19 of22 Carmel Board of Zoning Appeals Regular Meeting September 24, 2007 u Mr. Broach asked if the fence went all the way along the east property line or was it just to protect the Kinnaman's fTom the headlights. What are the materials? Mr. Moffett indicated on the site plan the fence along the east line and stated it was not defined yet, but was designed as a privacy fence for both sides. There are a lot of mini barns, etc. Ideally it would be a six-foot privacy fence, but the material had not been detennined. Mr. Dierckman asked to see the site plan for the north side. He wanted to know the distance from the front of the home to the sidewalk versus the ones on the eastern property edge. It looked like there was more space on the north set versus the east set. Could the north set be pulled down more toward the sidewalk to create more bufferyard on the north side? Mr. Moffett stated it was fifteen feet on the north front yard setback according to the engineer's site plan. There is a 50-foot right-of-way coming in at Lots 18-24, and the sidewalks on the north are in the right-of-way and the common area is within the lot. Mr. Dierckman asked the Department about the pavers on the each side, Was it the kind the grass grows through? Mrs. Barton-Holmes stated it would be up to Engineering and the Fire Department. There are indi vidual pavers the grass can grow through or there is porous conCrete that looks like ordinary concrete, but the water can percolate through it. u Mr. Dierckman thought the Fire Department tum-arOlmd would be great for the grass pavers, but he wasn't sure about the road. Mr. Sbinaver stated all the variances are very important to them. Absent the bufferyard relief, the project starts to change dramatically. He understood that economics should not be the consideration of this Board. But to be truthful, if the project is changed so much that the type of infrastructure cost and other costs associated with doing the project and having to create 30-foot bufferyard areas, it would eliminate even further the number of units that they may be able to build. The infrastructure cost would probably be the same, but it would probably force Uptown Partners to look back to what they could do under B7 Zoning. That goes to the heart of some of the discussions he had with Staff. If this goes beyond the BZA level and over to the Plan Commission level, those are the types of things they want to continue to investigate. The Plan Commission would review the landscape plans in detail. Mr. Ripma asked about the fencing around each of the homes. Mr. Moffett stated it had not been defined. They had thought about a privacy fence, even one made out of masonry brick or wood. They were not prepared to make a commitment. He didn't know ifit would be a requirement. Ideally in the alleyways behind the homes they would have something to screen the patio areas from the street. Mr. Ripma asked about disturbed wetlands and what ,"vere they doing to disturb it. u Mr. Moffett stated it was an area of impact. From what they have concluded, they have had two different firms come out and study the site. It is isolated to the wooded area to the south that they have Page 20 of 22 Carmel Board of Zoning Appeals Regular Meeting September 24, 2007 u tried hard to design around. It is not a Federal wetland. It was their understanding that it was under State jurisdiction. Through a pe1111itting process, they can impact a certain percentage of it. It is over one-half acre in size, about 20,000+ square feet. According to the cunent site plan, they will impact about 1600 square feet. As they go through the Plan Commission process, they will be looking at further ways to improve the site. They will look at the unit design to see if they can alter some of the units so that they do not even encroach on the 1600 square feet. Mr. Dierckman asked about the conditions the Department had requested. The conditions would be taking a lot of leverage away from the Plan Commission. Would they commit to a fence along the east side with brick columns? Mrs. Barton-HoImes stated the Department would typically ask for a privacy fence or a mixture of brick columns and wood. The conditions were just to start the dialogue with the Petitioner rather than conditions they would be asking for as a condition of approval of the variances. They are conditions or commitments that would come up at the DP/ADLS stage. Mr. Dierckman wanted to focus on the fence because of the individuals impacted by the fence and lights and so forth. Mr. Moffett stated they were obviously concerned about that because it was included on the site landscape plan. They would make a commitment for a six-foot privacy fence for the entire row. At this point because of economics, he did not know ifhe could commit to brick columns every six feet. He did not know the standards. u Mr. Dierckman thought it was every 20 feet and Mr. Ripma thought it was every 24 feet with a two- foot column so six-foot fence would fit. Mr. Dierckman asked if they could commit to that. They did not want a fence that would be flopping when it was not built properly. Mr. Moffett asked if they were specifically talking about the east property line and was 24 feet the current standard. Mr. Ripma stated it had gone through the Subdivision Committee. It was twenty-five feet with two- foot cblunms. The sections of fencing are six feet and fit in the twenty-four feet between the columns. Fences at 30 feet come apart. Mr. Moffett stated they could agree to that sort of fence on that property line. Mr. Broach stated he had not seen the fence on the plans. He was okay with the last variance. They would need to work through the ADLS process and work with the neighbors for a proper buffer. Mr. Hawkins thought the utility easements looked close. Based on the previous petition, make stlre the landscaping was done correctly and do not come back and ask for a variance. u Mr. Shinaver stated the date on the Findings of Fact and Ballot sheets had not been changed from the August 27 meeting. Page 2101'22 Carmel Board of Zoning Appeals Regular Meeting September 24, 2007. U\ Mr. Dierckman moved to approve Docket Nos. 07070044 UV through 07070052 V, Uptown Partners, LLC Guilford Road subj ect to the Commitment for the fence on the east side. The motion was seconded by Mrs. Plavchak and ALL were APPROVED 5-0. J. New Business There was no New Business. K. Adjournment Mr. Dierckman moved to adjourn. The motion was seconded by Mrs. Plavchak and APPROVED 5-0. The meeting was adjourned at 8:35 PM. , u u S:\Board of Zoning Appcals\Minutes\Board of Zoning Appeals. 2007\20070924.rtf Page 22 of 22