HomeMy WebLinkAboutMinutes BZA 07-22-02o Q
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BOARD OF ZONING APPEALS
July 22, 2002
The regularly scheduled meeting was held at 7:00 PM in the Council Chambers of Carmel City Hall on
July 22, 2002. Those members in attendance: Leo Dierckman, Michael Mohr, Earlene Plavchak, Pat Rice,
and Charles Weinkauf, thereby establishing a quorum.
Department of Community Services Staff in attendance: Director Michael Hollibaugh, Laurence Lillig,
and Code Enforcement Officer Adrienne Keeling. John Molitor, Legal Counsel, was also present.
The minutes of the March 2002, May 2002, June 6 and June 24, 2002, and July 11, 2002 meetings were
approved as submitted.
John Molitor reported the Executive Session discussion was limited to the pending litigation.
Laurence Lillig noted Items 5 -17j, Carmax Auto Superstores (V -54 -02 through V- 66 -02) have been
tabled.
J. Public Hearin:
1 -2j. Lakes at Hazel Dell, Section 1, Common Area 4a (V- 18 -02; V- 19 -02)
Petitioner seeks approval of the following Developmental Standards Variances:
V -18 -02 §25.7.02 -1(b): Number Type 2 Subdivision Signs
V -19 -02 §25.7.02 -1(b): Number Type unmatched Subdivision Signs
The site is located on the southwest corner of West Dellfield Boulevard and Hazel Dell Parkway.
The site is zoned S -1 /Residence Low Density.
Filed by Joseph M. Scimia of Baker Daniels for Drees Homes.
3 -4j. Lakes at Hazel Dell, Section 1, Common Area 6 (V- 20 -02; V- 21 -02)
Petitioner seeks approval of the following Developmental Standards Variances:
V -20 -02 §25.7.02 -1(b): Number Type 2 Subdivision Signs
V -21 -02 §25.7.02 -1(b): Number Type unmatched Subdivision Signs
The site is located on the northeast corner of East Dellfield Boulevard and Hazel Dell Parkway.
The site is zoned S -1 /Residence Low Density.
Filed by Joseph M. Scimia of Baker Daniels for Drees Homes.
Items 1 -4j were heard together.
Present for Petitioner: Joe Scimia, 600 E 96 Street, Indianapolis. The current suspended signs are hard to
see at approximately 100 feet from the right -of -way. The new signs will be 12 -inch brass letters on the
brick wall. The Ordinance requires all signs to be similar. The square footage of the new signs and the
suspended signs is below the footage permitted in the Ordinance.
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Carmel/Clay Board of Zoning Appeals
July 22, 2002
Page 2 of 9
Members of the public were invited to speak in favor of, or opposition to the petitions. No one appeared
and the public hearing was closed.
Mr. Lillig gave the Department Report. The Department recommends the Board suspend the rules in
order to vote on Items lj and 2j simultaneously, Dockets V -18 -02 and V- 19 -02, and Items 3j and 4j
simultaneously, Dockets V -20 -02 and V- 21 -02. The Plan Commission Subdivision Committee considered
and approved Docket 29 -02 ADLS Amend for the signage. The Department recommends favorable
consideration of these petitions with the condition that the signs comply with the Plan Commission
approval of Docket No. 29 -02 ADLS Amend.
Mr. Dierckman noted that it was Special Studies who reviewed the signage. There were several
remonstrators present in support and Special Studies found the signs appropriate.
Mr. Dierckman moved to suspend the rules. The motion was seconded by Mrs. Rice and APPROVED
5 -0.
Mr. Dierckman moved to approve V -18 -02 and V- 19 -02, Lakes at Hazel Dell, Section 1, Common
Area 4a, with conditions. The motion was seconded by Mrs. Plavchak and APPROVED 4 -1, with Mr.
Weinkauf casting the opposition vote.
Mr. Dierckman moved to approve V -20 -02 and V- 21 -02, Lakes at Hazel Dell, Section 1, Common
Area 6, with conditions. The motion was seconded by Mrs. Plavchak and APPROVED 4 -1, with Mr.
Weinkauf casting the opposition vote.
5-17j. Tabled pending Plan Commission approval of ADLS.
Carmax Auto Superstores (V- 54 -02; V- 55 -02; V- 56 -02; V- 57 -02; V- 58 -02; V- 59 -02; V -60-
02; V- 61 -02; V- 62 -02; V- 63 -02; V- 64 -02; V- 65 -02; V- 66 -02)
Petitioner seeks approval of the following Developmental Standards Variances:
V -54 -02 §14.6: Landscaping Requirements 15' north and east bufferyards
V -55 -02 §25.7.01 -2 8' traffic directional sign E1
V -56 -02 §25.7.01 -2 4- square -foot traffic directional sign E1
V -57 -02 §25.7.01 -2 8' traffic directional sign E2
V -58 -02 §25.7.01 -2 4- square -foot traffic directional sign E2
V -59 -02 §25.7.02- 8(b)(i) five (5) identification signs (A, B, B1, C, D)
V -60 -02 §25.7.02- 8(b)(ii) three (3) id signs oriented east (B, C, D)
V -61 -02 §25.7.02 -8(c) 193 square -foot wall identification sign A
V -62 -02 §25.7.02 -8(c) 193 square -foot wall identification sign C
V -63 -02 §25.7.02 -8(c) 78.33 square -foot ground identification sign B
V -64 -02 §25.7.02 -8(c) 78.33 square -foot ground identification sign B 1
V -65 -02 §25.7.02 -8(d) 8' ground identification sign B
V -66 -02 §25.7.02 -8(d) 12' 3%2" ground identification sign B1
The site is located on the northwest corner of East 96 Street and Gray Road. The site is zoned
B-3/Business.
Filed by E. Davis Coots of Coots Henke Wheeler for Carmax Auto Superstores, Inc.
18j. Burton Accessory Building (V- 92 -02)
Petitioner seeks approval of a Developmental Standards Variance of Section 25.1.1(B)(1):
Maximum Height in order to construct a 19' 10" accessory building.
The site is located at 3227 East 136 Street. The site is zoned R -1 /Residence.
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Carmel/Clay Board of Zoning Appeals
July 22, 2002
Page 3 of 9
Filed by J. Scott Burton.
Mr. Lillig reported the Department recommends this Item be Dismissed for Lack of Prosecution. The
Petitioner has not responded to the comments of the Technical Advisory Committee made at the May 22,
2002, meeting; the Petitioner has not filed Informational Packets as required; the Petitioner has not paid
the filing fee; and the Petitioner has not provided Proof of Notice. He stated that the Petitioner was
present to make a case for why this should not be dismissed at this time.
Public Hearing closed.
Petitioner, Mr. Burton, 3227 E. Smokey Row Road or E. 136 Street was present. Title search did not
indicate this property was covered by the Brentwood Subdivision covenants and restrictions. Upon giving
notice to the Brentwood Subdivision residents, several neighbors thought this property was located in
Brentwood and should follow the Brentwood covenants. He is waiting to resolve the Brentwood issue.
Therefore, he has not turned in the proper documentation.
Mr. Lillig stated if that is case, the Department does not have any objection if the Board is willing to
continue this to a future meeting, so long as the Petitioner makes the effort to keep the Department
apprised of the progress. The Department will need to know in advance if the Petitioner is expecting to be
on the August 26, 2002, agenda.
Mr. Burton stated that it was his intention to have the matter resolved before the deadline for the August
meeting.
Mr. Lillig stated the Department is willing to proceed under the assumption that this Item will remain
tabled until they hear from the Petitioner.
19 -22j. Meridian Mark III, Lot 1(V- 93 -02; V- 94 -02; V- 95 -02; V- 96 -02)
Petitioner seeks approval of the following Developmental Standards Variances:
V -93 -02 §25.7.01 -4(l) Spring Hill Suites off premise
V -94 -02 §25.7.02 -11(c) 28- square -foot Multi -tenant Building Complex Directory
Sign
V -95 -02 §25.7.02 -11(d) eight -foot (8') Multi -tenant Building Complex Directory
Sign
V -96 -02 §25.7.02 -11(e) <10' minimum setback
The site is located at 11895 North Meridian Street. The site is zoned B-6/Business within the US
31/Meridian Street Corridor Overlay Zone.
Filed by Michael W. Wells of REI Investments, Inc.
Present for Petitioner: Julie Christiansen, REI Investments, 11711 N. Pennsylvania, Carmel. At the last
Special Studies meeting adjustments were made. The sign was extended another six (6) inches and red
brick used to match the sign at Residence Inn. The entry road serves two (2) properties with boulevard
type effect at the entry with landscape islands separating outgoing and incoming traffic. This technically
sets within the right -of -way.
Members of the public were invited to speak in favor of, or opposition to the petitions. No one appeared
and the public hearing was closed.
Mr. Lillig gave the Department report. These Items were also the subject of an ADLS Amendment
petition, Docket 73 -02 ADLS Amend, before the Plan Commission. At the July 2, 2002, meeting, the
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Carmel/Clay Board of Zoning Appeals
July 22, 2002
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Special Studies Committee approved the petition with conditions regarding the design of the sign that
were outlined by Mrs. Christiansen. Docket V -95 -02 requests an eight (8) foot sign and should be
amended in the record to request for a seven and one -half (7 %2) foot Multi -tenant Building Complex
Directory Sign. Docket V -96 -02 should be amended to request for an encroachment into the right -of -way,
rather than a reduction of the minimum setback. The Department is recommending favorable
consideration of these petitions with the following conditions: that the sign comply with the conditions of
Docket 73 -02 ADLS Amend; that the Petitioner get consent to encroach approval from the Board of
Public Works and Safety; and the Petitioner submit commitments for removal of the sign should the City
ever require to do work in that segment of the right -of -way.
A picture of the area was viewed, showing existing buildings and location for the sign.
Mr. Weinkauf moved to approve V- 93 -02, Meridian Mark III, Lot 1. The motion was seconded by Mrs.
Rice and APPROVED 5 -0.
Mr. Dierckman moved to approve, with conditions, V- 94 -02, Meridian Mark III, Lot 1. The motion was
seconded by Mrs. Rice.
Discussion followed regarding the height of the sign and the size of the letters. Mrs. Christiansen affirmed
the lettering would be adjusted and made proportionate to fit the 7 foot 6 inch sign.
The motion for V- 94 -02, Meridian Mark III, Lot 1 was APPROVED 5 -0.
Mr. Dierckman moved to approve, with conditions and amendments, V- 95 -02, Meridian Mark III, Lot
1. The motion was seconded by Mrs. Rice and APPROVED 5 -0.
Mr. Dierckman moved to approve, with conditions and amendments, V- 96 -02, Meridian Mark III, Lot
1. The motion was seconded by Mrs. Plavchak and APPROVED 5 -0.
23 -24j. Pilgrim Lutheran Church (SU- 140 -02; V- 141 -02)
Petitioner seeks Special Use approval under Section 5.2: Special Uses of the conceptual
plan for a church on 20.6± acres. In addition, the petitioner seeks approval of a
Development Standards Variance of Section 21.2.7: Time Limit in order to extend the
deadline for commencement of continuous construction to five (5) years.
The site is located northwest of the intersection of West 106 Street and Shelborne Road.
The site is zoned S -1 /Residence Very Low Density.
Filed by Charles D. Frankenberger of Nelson Frankenberger for Pilgrim Lutheran
Church.
Present for Petitioner: Jim Nelson, Nelson Frankenberger, 12481 Medalist Parkway, members of the
congregation and members of the site selection committee. Presently the church is located at 103rd
Meridian Streets in the northwest quadrant of U.S. 31 and I -465. In planning for future re- location, the
church has agreed to purchase a 20 acres parcel located at 106 Street and Shelborne Road. The Special
Use is for church use only of this parcel. No construction will begin until the church reappears before this
Board with construction plans in the form of a Special Use Amend application. The Developmental
Standards Variance is requested to extend the deadline for commencement of construction. The church
has been at the current location for 50 years and has seen substantial development around its existing
location. The need to plan for relocation arises out of plans by the State of Indiana to improve the ramp
system at I -465 U.S. 31, utilizing church property. In order to survive, the church believes it must plan
for relocation today. The church has chosen to acquire land, but does not know what the physical needs
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Carmel/Clay Board of Zoning Appeals
July 22, 2002
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will be nor what it can afford. A conceptual development plan was provided, showing sanctuary,
fellowship hall, multi purpose facility, parking, and some space for recreational purposes. The requested
variance is for August 1, 2007, or one year from the date the Church comes back before the Board.
Members of the public were invited to speak in favor of, or opposition to the petitions. No one appeared
and the public hearing was closed.
Mr. Lillig gave the Department Report. The petition has gone to Technical Advisory Committee for
preliminary review and the Petitioner has been apprised of several items that will become an issue once
they are ready to develop this site. In the future they will come back to the Board of Zoning Appeals for
Special Use Amendment approval when they have prepared specific plans and are ready to move from the
existing facility on North Meridian Street. The Department recommends favorable consideration of these
petitions with the Condition that the fifty -foot half right -of -way for West 106 Street be dedicated once
the church has acquired the property.
Mr. Weinkauf wanted to go on record that a church should not have to go through all of the red tape and
expense to achieve what is already something they basically have the right to do, as churches are allowed
in an S- I area.
Mrs. Plavchak moved to approve, with condition, SU- 140 -02, Pilgrim Lutheran Church. The motion
was seconded by Mr. Weinkauf and APPROVED 4 -0, with Mr. Dierckman abstaining.
Mr. Weinkauf moved to approve V- 141 -02, Pilgrim Lutheran Church. The motion was seconded by
Mrs. Rice and APPROVED 4 -0, with Mr. Dierckman abstaining.
25 -26j. Edmo's Ammo Guns (V- 142 -02; V- 143 -02)
Petitioner seeks approval of the following Development Standards Variances:
V- 142 -02 §25.7.02- 8(b)(i): Number Type two (2) Identification Signs
V- 143 -02 §25.7.02 -8(e): Location setback from Proposed West Smokey Row
Road right -of -way
The site is located at 20 West Smokey Row Road. The site is zoned B -2 /Business.
Filed by Richard W. Edmonson.
Present for Petitioner: Richard W. Edmonson, 15396 N. Gray Road, Noblesville, IN. When he purchased
the property, he replaced the existing signs with new lettering without permits. In January he received
notice that the signs were in violation and he is trying to make them right. Building sets back off the street
and is hard to see, making the ground sign very important.
Members of the public were invited to speak in favor of, or opposition to the petitions. No one appeared
and the public hearing was closed.
Mr. Lillig gave the Department Report. The Department is recommending favorable consideration of
these petitions with the condition that the address on the signs be changed from "20 8 Street NW" to "20
West Smokey Row Road" in accordance with the officially recognized principal name of this road
segment. This is an oddly shaped piece of property and the Department believes there is a hardship with
respect to identification, given the position of this building and the amount of road frontage that is
available.
Mr. Dierckman agreed it is difficult to locate the building. This additional signage is needed.
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Carmel/Clay Board of Zoning Appeals
July 22, 2002
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Mr. Edmonson has had problems with mail delivery to the address of 20 West Smokey Row Road.
Mr. Lillig stated the Post Office has known about this being the primary designation for that street by the
Board of Public Works since April. The Postmaster has been notified and he is notifying his employees.
Mr. Weinkauf asked why V- 143 -02 was needed?
Mr. Lillig stated the signs are required to be set back from the proposed right -of -way in the thoroughfare
plan. The sign is outside the existing right -of -way, but it would be setting within the proposed right -of-
way. The sign would need to be moved at the owner's expense if the City acquires the existing right -of-
way.
Mr. Dierckman moved to approve, with conditions and commitments, V- 142 -02, Edmo's Ammo
Guns. The motion was seconded by Mrs. Plavchak and APPROVED 5 -0.
Mr. Dierckman moved to approve, with conditions and commitments, V- 143 -02, Edmo's Ammo
Guns. The motion was seconded by Mrs. Plavchak and APPROVED 5 -0.
27j. WTF Sprint Spectrum (A- 111 -01)
Appellant wishes to appeal the decision of the Director regarding the revocation of
Improvement Location Permit No. 627.O1b for a wireless telecommunications antenna on
an existing private radio tower.
The site is located at 1388 Queen's Way. The site is zoned S -1 /Residence Very Low
Density.
Filed by Thomas F. Bedsole of Locke Reynolds for Sprint Spectrum.
Present for Petitioner: Richard Nikchevich, 333 W. Wacker Drive, Chicago, IL; Tom Bedsole of Locke
Reynolds, 201 N. Illinois Street, Indianapolis; and John Buchert, 600 N. River Road, Rosemont, IL.
Mr. Nikchevich stated that this appeal centers on a legal question: Was plat approval required in
connection with the issuance of the Building Permit and if so, was it appropriate for the Director to, after
the fact, apply that standard in revoking Sprint's Building Permit?
John Buchert handles Site Development Activities for the Indianapolis market for cell site development
for Sprint. Sprint currently has a 5 -year lease with Dr. Zamber that has 5 automatic renewal options,
subject to exercise by Sprint. Sprint has no permanent easement or real estate interest in the property. The
legal description describes the property owned by Dr. Zamber as approximately five and one -half acres
and this was confirmed with a survey of the property.
Mr. Nikchevich asked the Director, Michael Hollibaugh, if subdivision control was an issue when the
building permit was issued?
The BZA Board had some concerns with examination or cross examination of witnesses during a
presentation. Mr. Molitor stated it is permitted during Board of Zoning Appeals proceedings.
Mr. Hollibaugh stated it became an issue when the Department determined that issue had been missed and
should be addressed. He did not know if subdivision approval had been required for other cell sites or
leasehold interests. He stated that he did not have a great deal of experience relating to these issues.
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Carmel/Clay Board of Zoning Appeals
July 22, 2002
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Mr. Nikchevich stated a Board or Director has only those powers accorded to it under State Law. State
Law does accord power over subdivision control, but in order for that control to exist there must be a
subdivision. A leasehold interest does not create a division. Therefore, there is not authority to regulate
this site under subdivision control basis. This gives cause to revoke Mr. Hollibaugh's revocation of the
Building Permit.
Under the City Ordinance there are two (2) prerequisites for a subdivision. First, there must be a recorded
division and there has been no recorded division of this property. Secondly, there has to be a creation of
two (2) or more parcels. That has not occurred in this matter. Hence, under a plain reading of the
Ordinance, there has not been a subdivision. This then must be applied to other leaseholds and cell
towers. Subdivision control applied to collocation of antenna would defeat the Ordinance's primary goal
to promote collocation. None of the matters that have come before the Plan Commission for plat approval
have involved cell towers. Therefore, like carriers must be treated consistently.
Members of the public were invited to speak in favor of, or opposition to the petitions. No one appeared
and the public hearing was closed.
Mr. Molitor gave the Department Report. The difficulty that occurred when this permit first came in was
that the Department was unaware a new access easement would need to be created. This was a difficulty
whether it was recorded or whether it would be leased to a separate tenant. The problem created was a
mix of uses, conversion from residential to commercial use. Perhaps this issue is moot, now that the
Board has ruled at its last meeting that the conversion of this site to a cell tower site requires a Use
Variance or the minimum, a Special Exception.
Mr. Dierckman asked for the Department's recommendation. Is a subdivision required or not?
Mr. Molitor responded that the Jeffersonville case that was sited was about leasing sites for mobile homes
and did not create a separate access easement. This case creates a separate access easement and he agrees
that a plat would be required.
Rebuttal:
Mr. Nikchevich stated the Jeffersonville case did involve a mobile home park. The park and the pads
within the park do not set on a street and do need a right of access. The Zamber site easement is an
easement or right of access contained within a lease document. According to the Jeffersonville case that
sort of interest is not subject to subdivision control. There are not two (2) recorded parcels and the
Ordinance cannot be applied. Easement in and of itself does not create a subdivision.
Mr. Buchert stated leases for cell sites need a means of access in almost every case.
Mr. Nikchevich stated the Ordinance does not apply. Irrespective of whether there is an easement of not,
that is only one sub -part of a multi -part test under Subsection two. And it is clear that the other two parts
are not satisfied.
Discussion followed regarding collocation and subdividing for commercial use in this area.
Mr. Dierckman moved to approve A- 111 -01, WTF Sprint Spectrum. The motion was seconded by Mr.
Weinkauf.
No Findings of Fact could be located.
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Carmel/Clay Board of Zoning Appeals
July 22, 2002
Page 8 of 9
Mr. Lillig stated specific Findings of Fact do not come with an Appeal.
Mr. Molitor stated the appellants had submitted a proposed Findings of Fact when this appeal was first
submitted last year.
Findings of Fact were discussed and it was decided the Board would like the proposed Findings from last
fall.
Mr. Weinkauf moved for a 10- minute recess. The motion was seconded by Mr. Dierckman and
APPROVED 5 -0.
Mrs. Rice stated from reading the Findings of Fact, it seemed they were putting the cart before the horse
and asking the Board to rearrange. It appears they did not go through the proper channels.
Vote on A- 111 -01, WTF Sprint Spectrum, DENIED 0 -5.
K. Old Business
There was no Old Business on the July 22, 2002, agenda of the Board of Zoning Appeals.
L. New Business
1L. Emerald Crest at Hazel Dell Summit Amenity Area (SU- 13 -00)
The Department of Community Services seeks clarification of the Special Use approval
granted July 24, 2000, per Section 5.2: Permitted Special Uses in order to establish a
private recreational facility.
The site is located northwest of East 131 Street and Hazel Dell Parkway. The site is
zoned S -1 /Residence Low Density.
Mr. Lillig reported that in April 2000, a petition was brought before the Board for an amenity area in the
Emerald Crest at Hazel Dell Summit Subdivision. At that hearing the petition was tabled to give the
Petitioner sufficient time to revise the landscape plan. The Petitioner came back to the Board in July and
the petition was approved with 2 conditions. The first had to do with lifeguarding and the second had to
do with Department approval of the landscape plan. The landscape plan submitted in July was identical to
the one the Board had rejected in April. Since July 24, 2000, the Petitioner has not submitted a revised
landscape plan, but has put in landscaping on the site that is consistent with the rejected April 2000 plan.
The Department has received several complaints from nearby property owners about this situation. Mr.
Lillig distributed a copy of his letter to the Petitioner regarding the course of action the Department would
like to see the Petitioner follow to resolve this issue. The letter set a deadline of August 9, 2002, for the
revised landscape plan that meets the requirements of Section 26.4: Perimeter Landscape Buffering
Requirements and that plan would be subject to the review and approval of Scott Brewer, the Urban
Forester. Photos included in the Department Report show the landscaping which has been installed. From
the photos, there is not sufficient landscaping to buffer this use from the adjacent lots. The Department is
requesting that the Board affirm their decision of July 2000. This is an Administrative matter and the
Department is requesting the Board's support in case the Petitioner comes back and suggests the
Department is misinterpreting the Board's intention.
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Carmel/Clay Board of Zoning Appeals
July 22, 2002
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Discussion was held regarding the ability to enforce the Ordinance with fines or closing down the
operation.
Mr. Molitor stated violation of a zoning ordinance could be charged on a daily basis. It is up to a judge to
impose the fines, if the violation can be proved.
The Department feels this is Davis' responsibility and not the homeowner's association because the
subdivision is not completely developed.
Mrs. Rice moved to begin the process for fining Davis Homes as soon as possible and for the Department
to be as aggressive as possible in enforcing this violation. The motion was seconded by Mr. Dierckman
and APPROVED 5 -0.
M. Adiourn
Mr. Dierckman moved the meeting be adjourned. The motion was seconded by Mrs. Plavchak and
APPROVED 5 -0.
Meeting was adjourned at 9:30 PM.
Michael Mohr, President
Connie Tingley, Secretary
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