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Board of Zoning Appeals
November 26, 2001
The regularly scheduled meeting of the Board of Zoning Appeals met at 7:00 PM on November
26, 2001 in the Council Chambers of City Hall, One Civic Square, Carmel, Indiana.
Board Members present: Leo Dierckman; Michael Mohr; Earlene Plavchak; Pat Rice; and Charles
Weinkauf, thereby constituting a quorum.
DOCS Staff in attendance: Jon Dobosiewicz, Laurence Lillig. John Molitor, legal counsel, was
present. Also attending was Adrienne Keeling, Code Enforcement Officer.
The minutes of the October meeting were approved as submitted.
John Molitor reported on issues being addressed by City Council through proposed Ordinances
some of these Ordinances are being returned to the Plan Commission tomorrow evening. If
approved by the Plan Commission, items lh -3h, 4h, 5h -8h, and 9h. may be removed from the
Agenda. There is no report on Pending Litigation.
Laurence Lillig reported that in addition to the previous items mentioned, item 12h is TABLED to
the January 28, 2002 meeting. In regard to items 15h through 60h, the Board must suspend the
Rules of Procedure in order to hear these items due to public notice of 23 days rather than 25 days
as required.
Pat Rice then moved to re -order the Agenda to hear Docket Nos. V- 113 -01 and V- 114 -01,
Methodist Medical Plaza North, as the first item of business. This motion was seconded by Leo
Dierckman and unanimously approved 5 -0.
H. Public Hearing:
lh -3h. These Items Currently Tabled Pending Action by the City Council:
Lakes at Hazel Dell, Section 1, Lot 16 (UV- 133 -00; V- 156 -00; V- 157 -00)
Petitioner seeks a Use Variance of Section 5.1: Permitted Uses in order to establish a
temporary model home /sales office. Petitioner also seeks Developmental Standards
Variances of Sections 25.7.02 -7(c): Maximum Sign Area; and 25.7.01 -7(d): Maximum
Sign Height. The site is zoned S -1 /Residence Low Density.
Filed by Joseph M. Scimia of Baker Daniels for Zaring Homes of Indiana.
4h. This Item Currently Tabled Pending Action by the City Council:
Lakes at Hazel Dell, Section 1, Lot 17 (UV- 134 -00)
Petitioner seeks a Use Variance of Section 5.1: Permitted Uses in order to establish a
temporary model home /sales office. The site is zoned S -1 /Residence Low Density.
Filed by Joseph M. Scimia of Baker Daniels for Zaring Homes of Indiana.
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Board of Zoning Appeals
November 26, 2001
5h -8h. These Items Currently Tabled Pending Action by the City Council:
Lakes at Hazel Dell, Section 1, Lot 237 (UV- 135 -00; V- 153 -00; V- 154 -00; V- 155 -00)
Petitioner seeks a Use Variance of Section 5.1: Permitted Uses in order to establish a
temporary model home /sales office. Petitioner also seeks Developmental Standards
Variances of Sections 25.7.02 -7(b): Number and Type of Signs; 25.7.02 -7(c): Maximum
Sign Area; and 25.7.02 -7(d): Maximum Sign Height. The site is zoned S -1 /Residence
Low Density.
Filed by Joseph M. Scimia of Baker Daniels for Zaring Homes of Indiana.
9h. This Item Currently Tabled Pending Action by the City Council:
Lakes at Hazel Dell, Section 1, Lot 238 (UV- 136 -00)
Petitioner seeks a Use Variance of Section 5.1: Permitted Uses in order to establish a
temporary model home /sales office. The site is zoned S -1 /Residence Low Density.
Filed by Joseph M. Scimia of Baker Daniels for Zaring Homes of Indiana.
This Item Currently Tabled at Petitioner's Request:
IOh. WTF Sprint Spectrum (A- 97 -01)
Appellant (an Interested Party) wishes to appeal the decision of the Director regarding the
collocation of 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 J. Taggart Birge of Bose McKinney Evans for Richard Deer.
13h -14h. Methodist Medical Plaza North (V- 113 -01; V- 114 -01)
Petitioner seeks the following Developmental Standards Variances:
V- 113 -01 ZO 25.7.02 -10(b) 6 identification signs
V- 114 -01 ZO 25.7.02 -10(b) 4 Identification Signs oriented south toward I -465
The site is located at 201 Pennsylvania Parkway. The site is zoned B -6 /Business within
the US 31/Meridian Street Overlay Zone.
Filed by David M. Link of Bremner Wiley.
David Link of Bremner Wiley appeared before the Board on behalf of HOPI, owner of the
property at 201 Pennsylvania Parkway. The petitioner is seeking a variance to add an additional
sign to the exterior of the building along I -465 on the south side of the building. The sign will
read: "Beltway Surgery Center" and 24" high, 31 feet in length. The sign will match the existing
signage in height, color, and illumination.
The purpose of the signage will be to identify the property for patients —this is a destination
location —and it will help first time visitors to the property.
Members of the public were invited to speak in favor or opposition to the petitions. No one
appeared and the public hearing was closed.
The Department recommended favorable consideration of the petitions. The amended sign plan
for this property was approved as Docket No. 103- 01 -ADLS Amend by the Special Study
Committee of the Plan Commission on September 4, 2001. There are prior developmental
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November 26, 2001
standards variances that allow the current sign plan to exist with multiple signs on 465 oriented
toward Pennsylvania Parkway.
Michael Mohr moved for the approval of V- 113 -01, Methodist Medical Plaza North.
Following a second by Pat Rice, the motion was APPROVED 5 -0.
Leo Dierckman moved for the approval of V- 114 -01, Methodist Medical Plaza North.
Following a second by Michael Mohr, the motion was APPROVED 5 -0.
12h. Concord Village, Section 4, Lot 125 (V- 112 -01)
Petitioner seeks a Developmental Standards Variance of Section 8.4.3(A) in order to
encroach 3' 6" into the 35 -foot R -2 /Residence Minimum Front Yard (yielding a 31' 6"
front setback). The site is located at 412 Lexington Boulevard. The site is zoned R-
2 /Residence.
Filed by Gary Vickrey for Walter M. Tamara B. Keck.
TABLED to January 28, 2002
Note: Leo Dierckman moved for the Suspension of the Rules of Procedure in order to hear items
15h through 60h to allow for 23 days Public Notice rather than 25 days. The motion was
seconded by Pat Rice and Approved 5 -0.
15h -60h. Carmel High School (V- 115 -01 through V- 160 -01)
Petitioner seeks the following Developmental Standards Variances:
SIGN l:
V- 115 -01 ZO 25.7.01 -2 T -tall Traffic Directional Sign (TDS)
V- 116 -01 ZO 25.7.01 -2 17.6- square -ffot TDS
"Note: This sign will also require Board of Public Works approval as it is located
within the East Main Street right -of -way
SIGN 2
V- 117 -01 ZO 25.7.01 -2 4'3"-tall TDS
V- 118 -01 ZO 25.7.01 -2 8.428- square -foot TDS
SIGN 3
V- 119 -01 ZO 25.7.01 -2 5' 10" -tall TDS
V- 120 -01 ZO 25.7.01 -2 5.656- square -foot TDS
SIGN 4
V- 121 -01 ZO 25.7.01 -2 T -tall TDS
V- 122 -01 ZO 25.7.01 -2 9.852- square -foot TDS
SIGN 5
V- 123 -01 ZO 25.7.02- 5(c)(ii) 32.5- square -foot Changeable Copy Sign
V- 124 -01 ZO 25.7.02- 5(d)(ii) 7" 10.5" Ground Sign
V- 125 -01 ZO 25.7.02- 5(e)(i) 0'- setback
V- 126 -01 ZO 25.7.02 -5(i) landscaping
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SIGN 6
V- 127 -01 ZO 25.7.02- 5(c)(i) 88- square -foot Institutional Sign
SIGN 7
V- 128 -01
ZO 25.7.01 -2
4' -tall TDS
V- 129 -01
ZO 25.7.01 -2
21.272- square -foot TDS
SIGN 8
V- 130 -01
ZO 25.7.01 -2
T -tall TDS
V- 131 -01
ZO 25.7.01 -2
3.956- square -foot TDS
SIGN 9
V- 132 -01
ZO 25.7.01 -2
4' -tall TDS
V- 133 -01
ZO 25.7.01 -2
14.188- square -foot TDS
SIGN 10
V- 134 -01
ZO 25.7.01 -2
4' -tall TDS
V- 135 -01
ZO 25.7.01 -2
14.188 square -foot TDS
SIGN 11
V- 136 -01
ZO 25.7.01 -2
5.444- square -foot TDS
SIGN 12
V- 137 -01
ZO 25.7.01 -2
5.444- square -foot TDS
SIGN 13
V- 138 -01
ZO 25.7.01 -2
4'4"-tall TDS
V- 139 -01
ZO 25.7.01 -2
13.970 square -foot TDS
SIGN 14
V- 140 -01
ZO 25.7.02- 5(b)(i)
5 Institutional Signs
SIGN 15
V- 141 -01
ZO 25.7.01 -2
5.444- square -foot TDS
SIGN 16
V- 142 -01
ZO 25.7.01 -2
5.444- square -foot TDS
SIGN 17
V- 143 -01
ZO 25.7.01 -2
5.444- square -foot TDS
SIGN 18
V- 144 -01
ZO 25.7.01 -2
5.444- square -foot TDS
SIGN 19
V- 145 -01
ZO 25.7.01 -2
5.444- square -foot TDS
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Board of Zoning Appeals
November 26, 2001
SIGN 20
V- 146 -01 ZO 25.7.02- 5(c)(i) 33- square -foot Institutional Sign
SIGN 21
V- 147 -01 ZO 25.7.01 -2
SIGN 22
V- 148 -01 ZO 25.7.01 -2
SIGN 23
V- 149 -01 ZO 25.7.01 -2
5.444- square -foot TDS
5.444- square -foot TDS
5.444- square -foot TDS
SIGN 24*
*Note: Sign #24 is completely covered by Docket No. V- 140 -01
SIGN 25
V- 150 -01 ZO 25.7.01 -2 3' 9" -tall TDS
V- 151 -01 ZO 25.7.01 -2 5.386- square -foot TDS
SIGN 26
V- 152 -01 ZO 25.7.01 -2 4'4"-tall TDS
V- 153 -01 ZO 25.7.01 -2 26.480- square -foot TDS
SIGN 27
V- 154 -01 ZO 25.7.01 -2 6'5"-tall TDS
V- 155 -01 ZO 25.7.01 -2 10.699- square -foot TDS
SIGN 28
V- 156 -01 ZO 25.7.01 -2 6'5"-tall TDS
V- 157 -01 ZO 25.7.01 -2 10.699- square -foot TDS
SIGN 29
V- 158 -01 ZO 25.7.01 -2 6'5"-tall TDS
V- 159 -01 ZO 25.7.01 -2 10.699- square -foot TDS
SIGN 30
V- 160 -01 ZO 25.7.02- 5(c)(i) 100 square -foot Institutional Sign
The site is located at 520 East Main Street. The site is zoned R -2 /Residence.
Filed by Michael A. Grubb of Paul I_ Cripe, Inc. for the Carmel/Clay School Corporation.
John Molitor noted that approval could be made in one motion to cover all of the variances under
Article 8, Section 10.
Michael A. Grubb of Paul I. Cripe, Inc. was present for the applicant, Carmel/Clay School
Corporation. Present for petitioner: Michael A. Grubb, Paul I. Cripe, Inc., for Carmel Schools.
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Board of Zoning Appeals
November 26, 2001
The signs are needed for visibility for the public to access the site for extra curricular activities.
The signs are not illuminated and the adjoining properties will not be affected.
Members of the public were invited to speak in favor or opposition to any or all of these
petitions. No one appeared and the public hearing was closed.
Mr. Grubb explained to the Board that these signs were brought to the School's attention about 6
months ago as being in violation. Laurence Lillig commented the signs arose over a period of
time through a need by the school. The school was unaware that the signs would have
limitations and would require permits.
The Department is recommending favorable consideration of all sign variance requests.
John Molitor commented a motion to approve all petitions with one vote requires a motion to
suspend Article VIII, Section 2 of the Rules of Procedure.
Point of Clarification: Signs 1 through 29 are existing signs; number 30 is a proposed sign ust
east of the main entrance at the auditorium.
Pat Rice moved to suspend Article VIII, Section 2 of the Rules of Procedure for the purpose of
casting one vote on all petitions for signage V- 115 -01 through and including V- 160 -01.
Following a second by Michael Mohr, the motion was approved 5 -0.
Leo Dierckman moved for the approval of V- 115 -01 through and including V- 160 -01, Carmel
High School. Following a second by Earlene Plavchak, the motion was APPROVED 5 -0.
I lh. WTF Sprint Spectrum (A- 111 -01)
Appellant wishes to appeal the decision of the Director regarding the revocation of
Improvement Location Permit No. 627.01b 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.
On the advice of John Molitor, the Board addressed the Motion to Dismiss as filed by Mr. Birge
of Bose McKinney Evans and a copy of the Objection filed by Mr. Bedsole. Without this item
being covered by the Board's Rules of Procedure, it is recommended that the Board hear the
attorney who filed the Motion to Dismiss on behalf of Mr. Deer and give the petitioner an
opportunity to respond.
Doug Haney, Attorney for the City of Carmel, was present representing Michael Holhbaugh
Director of the Department, absent from the meeting this evening.
Taggart Birge, 600 East 96 Street, attorney with Bose McKinney Evans, appeared on behalf
of Mr. Richard Deer to discuss the Motion to Dismiss Sprint's appeal of the Director's Decision
to revoke the Improvement Location Permit.
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Board of Zoning Appeals
November 26, 2001
Mr. Birge referred to Section 30.1 of the Ordinance and his interpretation that 30 days for the
action to be appealed should be computed from August 23, 2001, the date of the Improvement
Location Permit (9 days in August, and 21 additional days in September). If the 30 days were to
be computed from August 24, 2001, the Ordinance should have been drafted as follows: "All
appeals shall be filed with the Director within 30 days after the date of the action to be
appealed." It is a subtle but very important distinction.
Mr. Birge said the argument that Federal Rules of Civil Procedure and Indiana Trial Rules
should apply to this body has been rejected by other courts and the Board is not required to
follow that procedure. It is Mr. Birge's position that the Board is not required to extend the
deadline to the date of September 21, 2001, or, allowing for a weekend, September 24, 2001,
(actually the 32 day.) Sprint has had ample time to appeal the decision.
Mr. Birge is requesting dismissal of Sprint's appeal for untimely filing.
Thomas Bedsole, attorney, Locke, Reynolds, appeared before the Board representing Sprint
Spectrum. Mr. Bedsole states there is no law directly on point discussing this issue. One of the
options would be to simply suspend the 30 day rule. The law can be applied to determine what is
fair, reasonable and just under the circumstances. Notice was received on August 24 and is
being referred to as the "first" day. The last day was Saturday, the 22 The next available
business day was Monday, the 24 The Indiana Supreme Court has said in the case of Ball
Stores, Inc. V The State Board of Tax Commissioners, that a 30 day appeal within 30 days
means 30 full days—it does not mean within 30 days (the 29 day). There is a case that does
discuss the meaning of that word and Counsel's argument that it must be filed within 30 days
means it must be filed on the 29 day is directly contradicted by the Ball Stores case. The trial
rules are not applicable here, but they are useful to determine what is fair and just in terms of
applying the rules, and deciding when things are bound. Mr. Bedsole referred to Trial Rule 6a
which discusses time and computes any period as not including the day of the event (the first day
the decision was issued) and the last day is included unless it is a Saturday, Sunday, or legal
holiday, in which case it is the next business day.
Mr. Bedsole believes Sprint's filing was timely, and a fair reading of the statute would agree.
Rebuttal:
Taggart Birge says the interpretation of the Ordinance is simple; a fair and easy reading of the
Statute says, "Within 30 days" which expired September 24, 2001. The Board is not compelled
under Indiana Trial Rules. Mr. Birge requested the Board some a fair conclusion as allowed
under the law.
Robert Bedsole says Rule 93 of Indiana Rules of Trial Procedure should be disregarded by the
Board—it is not fair treatment under the law.
Doug Haney, City of Carmel Attorney, said there is a need for finality in this Administrative
hearing. Mr. Haney said he was only apprised of this situation a day before Thanksgiving and
was not aware until today that Bose McKinney was one of the involved parties. Mr. Haney
disclosed that his wife is a partner in Bose McKinney and is therefore constrained from giving an
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Board of Zoning Appeals
November 26, 2001
opinion from this specific matter. Under the circumstances, Mr. Haney feels it is prudent to
cease and desist.
There was discussion at length. Mr. Birge said they would like to be in a position of having a
public meeting on the merits of the issue. In the event the Board rules in favor of the Motion to
Dismiss, the next step is to forward to the Plan Commission to determine whether or not this
property in a residential should be sub divided to allow this commercial use.
Mr. Bedsole said he had not discussed going to another court to decide this issue. Upon
revocation of the permit, and if the appeal is determined to be untimely filed, Sprint would be
obligated to re -file the permit and upon re- filing, it would presumably be denied by the
Department of Community Services for failure to comply with the Subdivision Control
Ordinances. Upon denial of the permit request, an appeal could be filed of that denial, and we
would be back before this Board to hear what we are prepared to discuss this evening.
Mr. Bedsole said he was informed that the Motion to Appeal regarding co- location cited in item
I Oh. would be tabled until a decision is made in the instant case.
There was further discussion among the Board Members.
Leo Dierckman moved to uphold the Motion to Dismiss, Docket No. A- 111 -01, Sprint
Spectrum. Following a second by Pat Rice, the motion was APPROVED 5 -0.
The Motion to Dismiss is Upheld regarding the revocation of the Improvement Location Permit
No. 627.01b. Sprint now must file a subdivision plat with the Plan Commission for review and
approval. If approved, a permit would be up for determination under item 10h as to whether or
not the Director's initial decision was correct.
I. Old Business.
1 i. This Item Currently Tabled Pending Action by the City Council.
Lakes at Hazel Dell, Section 1, Common Area 3 (SUA- 63 -01)
Petitioner seeks to amend Commitment 2(B) (lifeguard) of Instrument No. 199909969620
relating to the Special Use approval granted for the Lakes at Hazel Dell Amenity Area
under Docket No. SU- 37 -99. The site is located at 12474 Dellfield Boulevard West. The
site is zoned S- I /Residence Low Density.
Filed by Joseph M. Scimia of Baker Daniels for Zaring Premier Homes.
There being no further business to come before the Board, the meeting was adjourned at 8:40
PM
Charles W. Weinkauf, President
Ramona Hancock, Secretary
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