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HomeMy WebLinkAboutMinutes BZA 10-23-00CITY OF CARMEL AND CLAY TOWNSHIP BOARD OF ZONING APPEALS OCTOBER 23, 2000 The regularly scheduled meeting of the Carmel Board of Zoning Appeals met at 7:00 PM in the Council Chambers of City Hall, Carmel, Indiana, on October 23, 2000. The meeting opened with the Pledge of Allegiance. Members present were: Leo Dierckman; Michael Mohr; and Charles Weinkauf. Director Steve Engelking; Terry Jones; and Laurence Lillig were present representing the Department of Community Services. The minutes of the September 25 meeting were approved as submitted. F. John Molitor reported that an Executive Session was held prior to tonight's meeting to discuss pending litigation. There may be a need for another Executive Session prior to the meeting in November; as yet, that is uncertain. G Steve Engelking reported no Department Concerns at the present time. H. Public Hearing: lh -2h. Town Village (UV- 84 -00; V- 85 -00) Petitioner seeks a Use Variance of Section 6.1: Permitted Uses in order to establish a senior housing facility on 16.991 acres. The petitioner also seeks a Developmental Standards Variance of Section 6.4.1 in order to increase the height of the building from the 25 foot maximum to 35 feet. The site is zoned S- 2 /Residence. Filed by Paul G. Reis of The Reis Law Firm for Cypress Senior LP. Paul Reis, attorney, 12358 Hancock Street, Carmel, appeared before the Board representing the applicant. Also in attendance were: Rusty Ross of Golden Living Communities, developer for the owner; Phil Warrenburg of Weihe Engineers; and Steve Fehribach of A F Engineering. The applicant is seeking two Variances: One is a Use Variance to establish an independent, restricted, senior residential living facility; and secondly, a Developmental Standards variance to increase the maximum height to 35 feet. An aerial photograph of the subject site was displayed. The boundaries are 465 to the north; Springmill Road and an undeveloped parcel to the east; 96 Street and residential area to the south; and a residential neighborhood to the west. The proposed use is for the development of a restricted, senior, independent living facility. In accordance with the Fair Housing Amendments of 1998, this community will be restricted to residents 62 s:\BoardolZoningAppeals\Minutes\bza2000oct years of age or older. Unlike other Senior Living Facilities within Carmel and Clay Township, the proposed development does not include a nursing facility, a health care component, nor does it include skilled staff for or to assist the residents. This will be a community where active, independent, senior citizens can reside and continue an independent lifestyle in a safe, healthy, and private setting. All units will be occupied on a rental basis without any ownership interest or lifetime contract. If, at some point, a resident requires health care or skilled staff assistance, the resident would have to seek out a different facility for care. There is no nursing facility or medical or support staff connected with this facility to provide these services. The development will offer certain community amenity services to its residents such as restaurant /private dining for the residents and their guests; scheduled transportation services; housekeeping; and scheduled recreational, religious, social and wellness programs. There will be 24 hour, on -site, property management. All units include full kitchens and will have individually controlled heating and air conditioning systems as well as an emergency call system. Washer and Dryer facilities will be available within the complex. It is important to realize that this facility is not a commercial enterprise. The restaurant facility will be limited to residents and their guests and will not be open to the general public. The Carmel Zoning Ordinance provides for a similar type facility called a nursing, retirement, or convalescent facility. The Ordinance does not break out those separate adjectives as separate facilities -it is all encompassed in one definition. A home for the aged or infirm in which three or more persons, not of the same immediate family, are received, kept, or provided with food, shelter, and or care for compensation but not including hospitals, clinics, or similar institutions devoted primarily to the diagnosis and treatment of the sick or injured. Included are limited care apartments and suites for the elderly. This facility does not fall within the definition. The residents are not admitted and are free to come and go pursuant to their rental agreement; there is no level of care, be it limited or full care. It is not a licensed, assisted living facility, it is purely residential but it is restricted to seniors. The residents are independent, they do not contract with the owner or manager to provide any care or life assistance services. Nor is the owner or manager compensated for any such services or any level of care. There is no responsibility on the part of the owner or its manager to provide any care or service to the residents as required by the definition. The petitioner is seeking a Use Variance because of the unique use and also out of sensitivity to the adjacent single family residential neighborhood primarily to the west and also to the south. This facility is not to be considered a commercial use but a residential use for seniors -it will be home to them and not part of a nursing or larger, assisted care facility. Due to the age restriction on the residents, it does not have the impact that similar, higher density, multi family developments may have on the area. While the number of units exceeds the per unit requirements under the current S -2 Zoning, and some residents may continue to own their cars, the effect and impact of this type of facility on the area will more closely resemble a single family, residential development than a multi family. The residents will have transportation provided and s:\BoardolZoningAppeals \Minutes \bza2000oct 2 even if a resident would own a car, they may not drive at all, and most probably not in peak hours. Traffic trip generation information has been provided to the Department of Community Services. It is also important to note that there will be no effect on the School System, other than a potential positive effect of additional tax base. There is no traffic generated during school hours or concerns regarding school buses entering or exiting the community. By seeking a Use Variance rather than a Rezone of the property to a commercial use or other residential use that would provide for a nursing home or other licensed, assisted care facility, the owner is attempting to be sensitive to the residential uses of the area. A Use Variance would limit the use as prescribed by this facility; should this facility dis- continue its use, the zoning for this site would remain S -2 single family residential. In initial meetings with the neighborhood groups, it was agreed that a rezone of the property was not preferred and that the use was, in fact, acceptable, notwithstanding their current position on the project. The owner's request for a Use Variance is felt to be the most appropriate approach for a site that is clearly between the U.S. 31 Meridian Corridor and the single family, residential neighborhood, since this development clearly is intended to have a residential feel to it. The site has been laid out to preserve as many of the trees on the south and west sides as possible. The detention area is located to the north, away from the residential areas in order to provide significant buffering areas. In response to the neighbors, the buildings have been moved an additional 52 feet to the east in order to increase the buffering. The buildings are located over 320 feet from the west side at the minimum point and over 250 feet from 96 Street to the south. A berm area with significant landscaping is also included; this has been reviewed and approved by the Urban Forester. The single entrance is located at Springmill Road in order to preserve the stand of trees along 96 Street and also to keep the area closed to the south. The style of the buildings is residential in design and materials; the external facade will be brick, cedar, or stone. Although the buildings are to be three stories in height (hence the request for the increased height to 35 feet) the intent is to maintain a residential feel to the community with open areas, courtyards, and tree preservation areas. The significant distances from the south and the west are provided to lessen the impact of the height of the buildings to the adjacent areas. Written commitments have been provided to the Department. These commitments are in response to meetings with the neighbors. There are approximately 27 issues that the neighbors wished to have addressed, and the petitioner has addressed and agreed to 24 of those issues. The petitioner is willing to go a step further and make written commitments in conjunction with the specific use variance to preserve and maintain the residential character of the area, to preserve and maintain the residential character and layout of the development, the operation of the development, and to lessen the impact as much as possible on the surrounding area. Issues of design, operation, and site layout are all addressed. Dedication may be necessary for 96 Street and this may affect buffering to s:\BoardolZoningAppeals\Minutes\bza2000oct the south. Carports have been addressed. No wall -pack lighting as well as decorative fixtures on the other lights; no flat roof tops except for small internal elevations; the external facades and materials have been committed to; no outside storage; service vehicles are not to be parked on the south or west sides of the facility; the facility will not be used to host public meetings, including service organizations; and the restaurant and dining facilities are restricted to the residents and guests of the community. If there were to be tennis courts, they would be located to the north. Finally, the petitioner has committed that all pick -ups and deliveries will not occur between 8:00 PM and 7:00 AM and will either be made at the main entrance to the facility or primarily on the north side. The site detention has been reviewed in accordance with the Hamilton County Surveyor. Conversations have been held with the County Highway Department concerning the possibility of a round -about as suggested by the 96 Street Corridor plan, and there is ample space in the southeast corner of the project to accommodate a round about. Steve Fehribach of A F Engineering reported that trip generations show that during the AM peak hours, a total of 16 trips would be generated (9 entering, 6 exiting.) During the PM peak hours, a total of 22 trips would be generated (13 entering and 9 exiting.) The demographics of the residents completely change what would be expected from a typical, multi family, residential development or a single family development. The density of the development does not generate traffic volumes that one might expect. It is anticipated that the maximum percentage of units with cars would not exceed 50 Mr. Reis feels that this development is well- suited to the site and the Use Variance, coupled with the written commitments, will act to preserve and protect the residential character of the area without adding significant burdens to the roads or schools. The development will also provide seniors living in the Carmel area and the north side of Indianapolis with a unique, living option -a safe and secure, independent living outside of an institutional or commercial setting or commercial area. The development will provide a quiet, residential setting where people of comparable life styles can live together without the distraction of general apartment complexes. The development will also provide an opportunity to live in a locale that may be close to a prior home and in an area that they are already comfortable with, close to friends and immediate family. The petitioner is requesting favorable action on these petitions. Members of the public were invited to speak in favor of either or both petitions; the following appeared. Roger Eiteljorg, 9950 Springmill Road, stated that his family has owned this particular piece of property since the mid -50's. The family has turned down numerous requests for development. However, in light of what is happening on Springmill Road, the current proposal seems to be the highest and best use of this property. Everyone would like to leave the property for the deer and wild animals, but that would not be advantageous as the surrounding area develops. The current proposal is preferable to an apartment complex or a dense condominium. Mr. Eiteljorg recommended that the Board vote in favor of the project. s:\BoardolZoningAppeals \Minutes \bza2000oct 4 Members of the public were invited to speak in opposition to either or both petitions, the following appeared: Dale Skenell, 501 Copley Place, Hamilton County, single family neighborhood comprised of one unit per acre and adjacent to the proposed development, read from a statement prepared by neighbor Pam Lambert. Ms. Lambert is a member of Heartland Coalition which includes representatives covering a geographic area that encompasses nearly 30,000 Hamilton and northern Marion County homeowners. During preliminary attempts to work with the petitioner, the Coalition discovered that the proposal did not meet the statutory requirements for a variance. Based on that revelation and predicated on the Statutory obligations of the Board, Heartland Coalition respectfully requests that the Board deny the petitioner's variance application for the following reasons: First, strict adherence to statutory requirements will not constitute an unusual and unnecessary hardship on the subject site. The parcel size is more than adequate for single family homes similar to those constructed adjacent to the property after the interstate was completed and those existing along 96 Street between Springmill Road and Michigan Road. In fact, Carmel has stated that the surrounding land is the most sought -after property in the State of Indiana. As such, denial of this petition to construct a business to house retirees will not interfere in any way with future development of the site, and unlike the proposal before the Board, would be in accordance with the Comprehensive Plan for Carmel. B -1, B -2, B -6, B -7, and as a special use, B -3, B -5, and R -3 and R -4 permit retirement facilities. The petitioner can seek other, appropriately zoned business areas in Carmel without rezoning the subject site or seeking a variance. There currently exists excellent, vacant, B -3 parcels in Carmel where the petitioner's facility could be constructed. As such, a denial of the petition creates no hardship on the subject site and no hardship on the petitioner. Statutory requirement number one cannot be proven by the petitioner. Secondly, the proposed facility would be injurious to the surrounding area's general welfare by placing a high density business in a low density, residential area. 234 units, a restaurant, a convenience store, and a beauty shop on S -2 property on less than 17 acres equate to almost 14 units per acre. When Hamilton County improves the intersection of 96 and Springmill Road, land will be taken from the subject site which further increases the density. The highest density allowed in R -4 zoning is only 12.4 dwelling units per acre; anything greater is totally incompatible with adjoining, residential homesites because of truck noise, privacy, and safety. Statutory requirement number two cannot be proven by the petitioner. Thirdly, the 35 foot height of the proposed business on the subject site will substantially decrease the property value of adjoining, single family homesites by severely decreasing the privacy. Deciduous trees provide little screening value when there are no leaves on them in the late fall, winter, or early spring, for a total of at least one -half of the year. Mounding and the use of evergreens have little or no screening impact on a 35 foot building adjacent to one's home. With little or no definitive track record provided by the petitioner, the potential for failure exists. Should the business prove unsuccessful, the potential exists for conversion of the facility to standard, multiple family apartments. s:\BoardolZoningAppeals\Minutes\bza2000oct Such conversion would dramatically change the traffic projections of the project and create additional havoc at the adjacent intersection and for the environs that further decreases adjoining property values. Statutory requirement number three cannot be proven by the petitioner. State Law says that denial of this petition is mandated with failure to prove even one of the statutory requirements. Here is shown failure to prove the first three. We urge you to deny the petitioner's request. Alan Klineman, 398 Vantana Court, Indianapolis, Hamilton County, just east of Springmill Road, addressed the Board. Firstly, the Board must find affirmatively that each one of the statutory requirements is met. Mr. Klineman addressed Statutory requirement number 5 and also referred to the Department's staff comments that indicate that this proposal is wholly inconsistent with the Comprehensive Plan which designates this area as very low density residential community. Mr. Eiteljorg, owner of the property, has stated that this would be the highest and best use. It might be the highest (largest) sale price of property, but it is not the best use. The best use for the people who relied upon the Comprehensive Plan would be to leave this as S -2 residential. The proposal results in an almost 14 units per acre density which is totally incompatible with the residential residences surrounding this property. The question of traffic has not been addressed orally this evening. If the entrance and exit location of the development onto Springmill Road were analyzed, just after the rise of Springmill over the interstate, it creates a traffic hazard and is incompatible with safety in this area. There is no left turn lane for persons heading north on Spring Mill that will want to turn left into the development and traffic will stack south to 96 Street. If you are exiting the property onto Springmill Road, it will be almost like a "Dodg'em because motorists come over the hill at a high rate of speed and the Sheriff cannot be there at all times to enforce the speed regulations. It is important to consider the traffic hazard that 234 units will create at this point, regardless of how many elderly reside at the project. In addition to the residents, there will also be staff personnel that will be entering and exiting this property. In conclusion, Mr. Klineman asked that the Board keep in mind requirement No. 5, that this not only doesn't substantially interfere with the Comprehensive Plan but in fact, as an affirmative matter, substantially does interfere with the Comprehensive Plan. George Haerle, 502 Braeside Drive North, Indianapolis, land use chairman of the Nora Northside Community Council, spoke to the Board on behalf of the NNCC Board of Directors. The NNCC Board of Directors met on October 5, 2000 and voted unanimously to oppose both of these petitions. Over the years, the Board has been very supportive of Comprehensive Planning. The Board believes that the proposed, commercial development is inappropriate in this location. A commercial development of this type should not be presented in a single family, residential area by Variance, but if it should be, it should be by rezoning. The Variance sought this evening cannot meet any of the five statutory requirements. There is no hardship on the land; the land is zoned single family residential, and it can be used for single family, residential development. Allowing a commercial project in a single family residential neighborhood violates Carmel's Comprehensive Plan. The NNCC agrees with the Dept. of Community Services s:\BoardolZoningAppeals\Minutes\bza2000oct professional staff that these variances should be denied. Please support the residential neighborhoods, the Comprehensive Plan, and the City's Professional Staff, and deny the petitioner's request. Rebuttal: Paul Reis. Regarding the strict application of the zoning ordinance as a hardship on this particular site -If this property were to be developed as a residential site, it would have two points of access to the community, one on 96 Street and one on Springmill Road. The issue of safety on Springmill Road has been pointed out and of course, the issue with safety in stacking distance at Springmill Road. There is a practical difficulty with trying to develop this site as a typical, single family residential area. The other consideration is the sheer amount of traffic that a single family residential neighborhood would generate. If the property were to be developed under the Residential Open Space Ordinance, the traffic generated may exceed those predictions for this particular use. This particular site has a unique hardship because of the significant inter- section and its practical difficulty with two points of access on two roads that already have significant traffic concerns. There is no uncertainty that a single family residential development could be developed and meet the safety requirements. Secondly, there was reference that this would be a business to house retirees. The proposed is not a business to house retirees. The development would be a person's home, a place where an elderly person could live on his own. It is not viewed as a business -it gives an elderly person options and independence. Any referral to a business is not accurate. There are ancillary amenities offered, but they are in no way considered or intended to be a commercial venture. In regard to the height issue and property values: The buildings have been significantly moved away from the west and south to increase the separation between the development and the neighborhood so that the neighboring homes are not looking into the buildings. Berms have been included so that the sight line will be enhanced by the additional landscaping and species and will offer more privacy. Again, the entrance on Springmill Road can be addressed by Steve Fehribach, traffic engineer. The petitioner does not feel that there will be significant traffic to cause a stacking problem on 96 Street, particularly at peak hours in the morning and afternoon. The maximum staff at this point is estimated to be only ten persons. Again, this is not a commercial venture, it is not a nursing home, it is not a retirement facility as defined under the Ordinance. The various zoning districts that have been suggested do suggest commercial ventures and do involve care being given to the residents and perhaps could be a place that people may be deemed as being "housed." The proposed development is a free choice, they are not admitted into this community, they choose to come to this community. It is important to note that this community provides an opportunity for a growing population of people to live in a very nice apartment in a residential area in a development designed to be residential, and in fact, designed to be as compatible as possible with the residential uses. To not allow this development to proceed will provide a hardship on the property in light of its location, the possibility of additional traffic concerns going forward, and the s:\BoardolZoningAppeals \Minutes \bza2000oct 7 uncertainty of what type of single family residential development could be acceptable on this site. Department Report, Laurence Lillig: The Department received a letter dated October 5, 2000 from the petitioner's representative describing how the intended use as a senior housing facility differs from a nursing home or assisted care facility. Under the land use regulations, the proposed development would fall under either nursing facility or convalescent facility. The information provided did not illustrate any difference between a senior housing facility and a retirement facility. The zoning ordinance provides a number of zones in which retirement facilities are permitted, and as such, the proper procedure for a development of this type is to file a petition for a rezone to the appropriate district. Rezoning by use variance is inappropriate. Furthermore, the proposal is inconsistent with the Comprehensive Plan which identifies this area for very low intensity residential communities. The Department is recommending negative consideration of these petitions. Board Comments: Leo Dierckman asked how many employees would be on the premises at any given time, and whether or not home health care will be available to the residents. Les Ross of Golden Living Communities, developer of the property, responded that there would be a maximum of 20 employees on the premises at any given time, and that residents would be contracting for their own health care. Cypress Senior Living would be the owner of the facility. Cypress is a real estate company based in Houston, Texas, to develop senior living throughout the country. Cypress currently has 9 properties under construction; Golden Living is based in Dallas, Texas. Leo Dierckman also asked the difference between a senior housing facility and a retirement facility. Paul Reis responded that the senior housing community is a totally independent facility with amenities suitable for seniors. A retirement facility provides health care and assistance to its residents. The proposal is a unique type of housing that has been authorized by the Federal Government in recognition of the growing senior population. Laurence Lillig commented that the Ordinance makes no requirement that care be provided -it is an option under the definition. The Ordinance definition separates the three as nursing, retirement, or convalescent facility and does not lump them together as a single type of use. There is nothing in the Ordinance to differentiate a senior housing facility from a retirement facility. Paul Reis said the petitioner had talked with the Department about the Use Variance approach as opposed to a rezone. The petitioner felt that a senior housing facility does not fit within the definition provided -the proposal is unique. Another point is that there is suggestion that the facility could be converted into apartments and a use variance would be workable for that very thing. In sensitivity to the neighborhood and the area and trying not to have an impact of traffic, the Use Variance seemed the logical approach. s:\BoardolZoningAppeals\Minutes\bza2000oct Leo Dierckman asked if his client were willing to subject the project to ADLS approval process by the Plan Commission. Mr. Reis said he was willing to check with his client. Chuck Weinkauf read into the record a letter from Mayor Brainard dated October 19, 2000, addressed to the Board; said letter is attached hereto and made a part hereof. The letter essentially supports the Department of Community Service's position. Paul Reis commented that there seems to be a characterization by the community that the development is commercial; however, it is residential. It is a Special Use in a Residential District. The petitioner is not advocating rezone to a commercial district west of Springmill Road. The Comprehensive Plan does state that the mapping of rural residential and very low density areas is not intended to preclude consideration of innovative, higher density, residential enclaves occurring adjacent to cultural, educational, neighborhood service centers within the rural residential and very low density areas, provided such were designed to serve and enhance the greater community, complement the general architectural theme of the immediate area, and do not generate significant traffic congestion. Therefore this proposal can be considered as not directly opposing the Comprehensive Plan because this is a unique, housing, residential alternative. This proposal is essentially an apartment complex for seniors. Michael Mohr asked what the main responsibility of the employees would be. Mr. Ross responded it would vary, but those duties would include housekeeping, kitchen help, wait staff, leasing and management personnel. Mr. Mohr asked to see samples of their marketing materials. Mr. Mohr commented that he did not see any difference between the proposal for a senior housing community and a retirement facility. Mr. Reis said the only health care was home health care. It could be likened to a community in Florida that you could join, have an apartment, and community rooms would be available within a clubhouse. Essentially, this is an apartment complex that is limited to seniors. Mr. Ross further explained that no care is being provided -the residents are independent and do not depend upon others for assistance or care. Independent living facilities are not State licensed. The public hearing was then closed. Mr. Reis then stated that his client was willing to take this proposal through the ADLS process at the Plan Commission level. Leo Dierckman moved for approval of UV- 84 -00, Town Village, seconded by Michael Mohr. MOTION DENIED 0 in favor, 3 opposed. (Leo Dierckman, Michael Mohr, and Charles Weinkauf) At this point, Paul Reis withdrew the application for V- 85 -00. s:\BoardolZoningAppeals\Minutes\bza2000oct 3h. Lakes at Hazel Dell Subdivision, Section 1, Common Area 3 (SUA- 88 -00) Petitioner seeks to amend the lifeguarding commitment made as part of the Board's approval (Docket No. SU- 37 -99; approved August 23, 1999) of the amenity area. The site is located at 12474 Dellfield Boulevard West. The site is zoned S -1 /Residence. Filed by Joseph M. Scimia of Baker Daniels for Zaring Homes of Indiana. Joseph Scimia of Baker Daniels, 600 East 96 Street, Indianapolis, appeared before the Board representing Zaring Homes of Indiana. This item was continued from the September meeting, at which time the applicant presented his petition for a Special Use Amendment to delete a condition or commitment that required a lifeguard to be present during all operating hours at the Lakes at Hazel Dell Subdivision swimming pool. The Lakes at Hazel Dell is a 280 lot subdivision consisting of four different communities: The Estates; The Meadows; The Overlook; and The Glen. In August, 1999, The Lakes at Hazel Dell received a Special Use Approval for a recreational facility that included a swimming pool. At that time, the Board imposed a condition to require a lifeguard to be present during all operating hours that the pool is open for business. Last month, the petitioner appeared before the Board to request that this requirement be deleted on several grounds. Materials were submitted regarding the legality of the condition imposed by the Board and the Board's counsel was given an opportunity to review the petitioner's position as well as to submit a Legal Memorandum in support of the petitioner's position. In essence, the petitioner is asking the Board to review a commitment that it imposed in connection with the recreational facility, and basically agree with the petitioner that the condition exceeded the Board's authority under the local Zoning Ordinance. Mr. Scimia stated that the petitioner has had difficulty in locating lifeguards to staff the facility; the petitioner also feels very strongly about the matter. Mr. Scimia referred to the previous meeting; the State law provides that swimming pools that have less than 2,000 square feet of surface water area are exempt from the requirement imposed by State law as well as County law, to have a lifeguard on duty. Mr. Scimia also provided the Board with mortality letters from the State of Indiana that according to their records, no drowning has occurred in the City of Carmel since they started keeping records, approximately 1985. The petitioner does not disagree that the City of Carmel can require a stricter requirement than currently required by the State Department of Health and the County Department of Health. The County has adopted identical standards to the State and those standards provide that an operator of a pool must comply with State and local requirements and any other requirements adopted by a local ordinance. The language reads.... "The swimming pool shall be under the supervision of a capable individual; shall assume responsibility for compliance with all parts of this rule which is a State law, and any local ordinance relating to the safety of bathers." It is believed that this was very important language that was added to the State law because the regulation for the safety of bathers is a legislative s:\BoardolZoningAppeals \Minutes \bza2000oct 10 act. It is an act imposed by elected officials, elected by people who have to comply with those requirements. In this case, there is basically a condition of commitment imposed by the Board of Zoning Appeals and not by a legislative body. The legal authority provided to Mr. Molitor supports the proposition that a local, administrative body such as the Board of Zoning Appeals, may not engage in legislative action. Mr. Scimia said the State and local County Department of Health have spoken and they have exempted pools the size of the pool located at the Lakes at Hazel Dell from the requirement that a lifeguard be present. If the City and County would like to adopt a stricter requirement, it may do so, but it must do so by Ordinance, duly adopted and subject to the same procedures that other laws are enacted. The petitioner is requesting the their petition to amend the Special Use Approval imposing the condition be approved. This may become a topic for debate at the City Council, but the petitioner does not feel it is valid the way it was imposed on this developer. Members of the public were invited to speak in favor of or opposition to this petition; no one appeared. Mr. Weinkauf commented that he took great offence to the word "imposed" used by Mr. Scimia. The Board asked for the condition of lifeguarding and received a positive response to the condition requested. It was never imposed, nor was it a strict matter of any type of condition for a positive vote. In regard to Mr. Scimi'a statement about the difficulty in finding lifeguards, Mr. Weinkauf asked if the pool was open this season and if so, there are knowledgeable people who could put Mr. Scimia in contact with organizations that provide lifeguards. Mr. Weinkauf thought the pool was at least 2,000 square feet in size and if it is not, why is it not, because it was agreed that the pool would be at least 75 feet in length and approximately 35 feet in width. Mr. Scimia was apologetic to Mr. Weinkauf and the Board and had not intended to suggest anything other than what he understood to be the case the night of the initial hearing; Mr. Scimia was not representing the petitioner at that time. Mr. Scimia's client felt that it was portrayed to him that if he did not agree to the lifeguard commitment, it would jeopardize their approval of the petition. The petitioner decided to try to employ a lifeguard and make it work. The pool opened in June /July of 2000. Mr. Scimia submitted a list of 20 plus agencies that had been contacted to supply lifeguards and the results of those contacts. The petitioner has not been able to locate lifeguards for the pool. Mr. Weinkauf offered to supply the names of companies to the petitioner. Mr. Scimia said the petitioner had gone to licensing agencies with little success. The pool is 75X25 feet or 1875 square feet. The petitioner anticipated a need of 10 to 12 lifeguards to staff the entire pool. There is a large period of time when the pool is not even in use. There are approximately 60 homes that are occupied. Perhaps at some point s:\BoardolZoningAppeals \Minutes \bza2000oct 11 it would be appropriate to have a lifeguard, whether 75% built out or occupied, but right now, a lifeguard would be guarding himself. There are a number of Subdivisions existing today that have no similar requirement. This has not been a requirement in the past and if it is a requirement, it should be done through the process required by law and applied to everyone equally. Department Report: John Molitor addressed the issues raised by Mr. Scimia in the Legal Memorandum. This case does fall in a "gray area" or tests the limits of what the scope of the Board's authority is in regard to commitments. The case may fall within the general authority of the Board. Generally, the courts have given some deference to local Boards regarding these types of matters. However, there is no case law squarely on point on this particular matter. Mr. Molitor said the Board may want to consider deferring action on this until the matter can be taken up with City Council as to whether or not they would like to pursue the issue in the legislative arena. Otherwise, the Board could make a decision as to whether or not they agree with the petitioner and allow a modification of a commitment previously made. Mr. Weinkauf reiterated that this particular commitment was not imposed upon the petitioner but was asked for and received. The public hearing was then closed. Michael Mohr moved for approval of SUA- 88 -00, Lakes at Hazel Dell Subdivision, Section 1, Common Area 3, seconded by Leo Dierckman. The vote was one in favor, two opposed Michael Mohr and Charles Weinkauf. NO DECISION VOTE. This item will be heard again at the November 27, 2000 Board of Zoning Appeals meeting. Mr. Weinkauf commented that he would like an opportunity to speak to the entire City Council regarding commitments of this type and the fact that such an ordinance does not exist. Mr. Weinkauf stated that the Board had asked for and received the commitment from the petitioner. Mr. Weinkauf was willing to furnish a list of lifeguards to the petitioner for their next season. 4h -5h. Orin Jessup Land Company's First Addition, Lot 126 127 (part) (SUA -89- 00, SUA- 90 -00) Petitioner seeks Special Use Amendment approval to amend the 80 foot height commitment made as part of the Board's approval (Docket NO. SU- 30 -97; approved July 28, 1997) of a telecommunications tower. The petitioner then seeks Special Use Approval to increase the height of the existing tower from 80 feet to 140 feet. The site is located at 750 East 106 Street. The site is zoned B- 2 /Business. Filed by David Gilman of Crown Castle Indianapolis for Westel- Indianapolis. David Gilman, 333 East Ohio Street, Indianapolis, appeared before the Board representing Crown Castle. A commitment amendment is being requested as well as an s:\BoardolZoningAppeals \Minutes \bza2000oct 12 increase in height of the existing tower from 80 feet to 140 feet. The tower is located at 750 East 106 Street in a B -2 district. Mr. Gilman said that the additional height of the Tower is required to allow two carriers the space to co- locate. Omni Point and Clear Wire have made application to Crown Castle to co- locate on the existing tower immediately. Currently, Spring and Cellular One are on the tower. The tower was initially approved in 1997 for an 80 foot monopole. Administratively, the tower was approved to be increased from 80 feet to 100 feet. When the applicant requested an increase in height from 100 feet to 140 feet, the planning staff determined at that time that the applicant should appear before the BZA for any additional height extension. The existing fence and compound area have been landscaped and no additional leased area or compound expansion will be necessary. Crown Castle recently took over management responsibilities of the existing tower -those management responsibilities include maintenance of the facility and co- locating additional carriers on the structure. With the additional increase in height, the tower would be able to co- locate four carriers, a fifth, and possibly a sixth carrier could co- locate from 120 feet up to 140 feet. The initial commitment was for a tower structure to be designed and structurally engineered and erected to a height not more than 80 feet in order to accommodate three additional wireless telecommunication service providers. However, an 80 foot tower cannot accommodate four carriers. The original intent was to design the tower to accommodate four carriers, but initially build it at 80 feet. Hence, the request to modify the original commitment to provide for a height of not more than 140 feet as opposed to a height of not more than 80 feet. The height of the tower was increased to 100 feet administratively. Crown Castle is not a communications provider; Crown Castle erects steel structures and allows any carrier or provider to locate on the towers. At this time, the petitioner is requesting that the tower height be established at the maximum height permitted in the B -2 district of 140 feet. The Special Use is consistent with the character of the B -2 district and towers are permitted as a special use. The area is a mix of heavy commercial and light commercial uses, and the Special Use is physically suitable for the land in question. The tower will not adversely affect vehicular or pedestrian traffic; it is un- staffed and requires no sewer, no water, and no vehicular traffic to and from the site except for one maintenance visit per month. Members of the public were invited to speak in favor of or opposition to the increase in the height of the tower; no one appeared. Department Report, Steve Engelking. The original petition was approved just prior to the approval of the Cell Tower Ordinance in Carmel, and as such, the commitments at that s:\BoardolZoningAppeals \Minutes \bza2000oct 13 time that were offered and included are what are now being requested for amendment. The Department does support the amendment and recommends favorable consideration. If the commitments did not exist and this had come in after the effective date of the Ordinance, co- location and expansion of a tower to a greater height would be automatic and by permit only. It would not have necessitated a return to the Board of Zoning Appeals. The public hearing was then closed. Michael Mohr moved for the approval of SUA 89 -00, seconded by Leo Dierckman. APPROVED 3 in favor none opposed. Michael Mohr moved for the approval of SUA- 90 -00, seconded by Leo Dierckman. APPROVED 3 in favor none opposed. 6h. Vertical Real Estate Telecommunications Tower (SE- 107 -00) Petitioner seeks Special Exception approval in order to establish a wireless communications facility. The site is located northeast of East 106 Street and Hazel Dell Parkway. The site is zoned S -1 /Residence. Filed by Matt Mugavero of CIS Communications for Vertical Real Estate. Paul Helmke, attorney, Barnes Thornburg, Ft. Wayne, appeared before the Board representing the petitioner and Vertical Real Estate. The petitioner is requesting approval for the placement of a cell tower. Vertical Real Estate has been in business for about 15 years and is based in Ft. Wayne, Indiana. Vertical Real Estate is an independent company that establishes cell towers and markets them to as many carriers as possible. Vertical Real Estate is not connected with any single carrier, and it is their philosophy to have towers that can handle as many carriers as possible, thereby eliminating a proliferation of cell towers. Vertical Real Estate has been contacted by a number of carriers regarding gaps in the coverage areas in the Carmel area. As a result, Vertical has located a site and reached an agreement with the owners of the site northeast of East 106 Street and Hazel Dell Parkway. The site has gravel pits and mining operations to the east and west, floodplain to the east and south, and is an area that is not being used as residential, even though it is zoned S -1 residence. The petitioner is proposing to build a 120 foot tower that will have four carriers as required by the Ordinance; the tower will be a monopole. The petitioner has been working closely with the neighborhood associations, in particular Kingswood, regarding placement of the tower. Kingswood is represented this evening by attorney Greg Silver and Tom Yedlick, board member of Kingswood, and other members of the association. At Kingswood HOA's request, the petitioner is willing to agree to some special conditions in regard to the property. Basically, the petitioner has agreed to minimize visual pollution by using "hugging" or flat -type antennae. If this type of antennae is not feasible for the carrier, the petitioner would return to the BZA for an s:\BoardolZoningAppeals \Minutes \bza2000oct 14 alternative. Mr. Helmke distributed pictures to the Board of existing, "hugging" antennae. The petitioner has also agreed to paint the tower in such color as to blend in with the background, such color to be agreed upon with the Kingswood HOA, basically a gray or blue. In order to alleviate the proliferation of towers, the petitioner would commit to accommodate the future cell tower requirements of any carrier within a one mile radius of Clay Township at this site. This is greater than required by the Ordinance and may require a future increase in the height of the proposed tower or the erection of a second tower at this location or any other reasonably feasible alternative. However, the petitioner would be willing to carry any of the carriers in this part of the community that would be needed and work with them to make sure that the cell phone services needed are being provided. Mr. Helmke summarized by saying that there is a definite, and this is a good location. The petitioner is working with the neighborhood association and there is clearly a need for this service. The tower will not increase traffic other than once a month for maintenance, there will be no employees at the site, and there will be landscaping around the site. The petitioner is requesting approval at this time. Jack Buck, president of Vertical Real Estate, was in attendance as well as Matt Mugavero of CIS Communications. Members of the public were invited to speak in favor of the petition; the following appeared: Gregory K. Silver, attorney, 342 Massachusetts Avenue, Indianapolis, appeared before the Board representing Kingswood HomeOwners Association. Kingswood HOA has worked with Paul Helmke on this matter and have come to the satisfactory agreement of the conditions and commitments read into the record. The cell tower is not thought to be in a floodplain and the HOA supports the petitioner's proposal on behalf of Vertical Real Estate. Doug Floyd, Land Rush Company, 970 Logan Street, Noblesville, appeared before the Board representing Lattice Communications, currently Tabled for this evening. Lattice believes that the cell tower located at East 106 Street and Hazel Dell is appropriate for the community's needs and they have been contacted by Kingswood HOA. Lattice intends to have a neighborhood meeting with Kingswood prior to the November Board of Zoning Appeals meeting regarding the location of another tower at 116 Street and Gray Road. This is brought to the Board's attention because the petitioner believes there is a need for carriers such as Mr. Helmke described and for others committed for the tower at I I6 Street and Gray Road. These two sites are less than one mile apart, but the demand for service within the Carmel area has created a situation where there is a need for more than one tower to provide the carriers coverage that would fill in the gaps in their service area. Information will be submitted to the Board in November regarding the Radio Frequency Maps and the efforts at co- location. Unfortunately, this tower, as proposed, is s:\BoardolZoningAppeals \Minutes \bza2000oct 15 not one that all of the carriers could fit on and as a result, there will be two requests: one tabled for this evening, and an additional one next month. Gregory Silver made further comments to the Board. Kingswood is vehemently opposed to the "other cell tower" that Mr. Floyd spoke of. The difference in the two is that in the instant case, it is not hanging over the neighborhood within a few feet, right next to the homes. The tower at 106 and Hazel Dell is far enough away that the homeowners can live with it and work with it and not see it -that is not the case with the other tower. Members of the public were invited to speak in opposition to this petition; no one appeared. Mr. Weinkauf commented that when the cellular towers started appearing before the Board, the Board agreed with Mr. Helmke's observation relative to the number of persons who have and use and desire cellular communications but do not want the towers in their back yard. Initially, the Board was petitioned by licensees Sprint, Cellular One, GTE now Verizon, and the Board's position was that in order to effectively look at proposed locations for towers, certain information was needed from the licensees. The Board has requested information from the licensees as to what their intentions were relative to locations and how they proposed to cover and overlay their zones. Now, with petitions from the actual company that constructs towers rather than the licensees, there is a void of information. In order for the Board to make good decisions for all concerned, there needs to be better information as to what carrier will be located on what tower, where, and for how long. Mr. Weinkauf asked the Department if the petitioners for the cell towers were submitting the type of information initially requested to assist the Board in making good, informed, decisions. John Molitor agreed with the Chair's observation; there currently is not the same type of presentation being made and there seems to be a distinct lack of information. Mr. Weinkauf said that suddenly, because licensees themselves are no longer making the presentation for the petition on the towers, there is a real void in information. The Board is looking for a substantial amount of information. Mr. Helmke apologized to the Board. Initially, coverage maps were submitted from Nextel. The application also has commitment letters from other carriers; this was left out of the presentation. The Nextel map refers to the tower site as Northern Beach; the star is the proposed location and shows a huge gap in the coverage area. The second map shows the tower activated and a major portion of the gap has been filled. In addition, the application shows a letter from Nextel indicating their interest in the site; there are letters from Metrocom, a paging company, Mobec's, and Arch Communications. There is a minimum of four carriers planned for the tower and room for more. Other carriers have been contacted, including Mr. Floyd's client. s:\BoardolZoningAppeals \Minutes \bza2000oct 16 Jack Buck, president of Vertical Real Estate, Ft. Wayne, Indiana, appeared before the Board and agreed that the tower industry has changed a lot in the last 12 to 24 months. Most of the big carriers with the exception of AT &T and Sprint, have sold their portfolio towers to big companies such as the case heard earlier this evening. Vertical Real Estate is unique in that I I towers have been built in the Indianapolis area and surrounding communities, and have specialized in communities such as Carmel. All of the carriers in Indianapolis are Vertical Real Estate customers. There is an average of four carriers per tower. There are no signed commitments for co- location at this site; that would not be done until BZA approval was granted. Mr. Weinkauf had further comments. The Board finds itself in a difficult position. Mr. Silver is a proponent of Vertical Real Estate's tower; it is not in view of the Kingswood home sites. Some of the same companies are interested in both Vertical Real Estate's tower and the tower Mr. Floyd is petitioning for. However, the Board is being asked to make a decision without adequate information. As it is now, it would be extremely difficult to make a decision on the Vertical Real Estate petition because of the proximity of another petition coming before the Board next month with the amount of information currently available. Mr. Helmke responded that one of the crucial factors is the point of location. The reason the Kingswood homeowners are not opposing this is because the location does not have surrounding neighborhoods; these locations are getting more difficult to find. To find a location without surrounding neighborhoods that makes sense for carriers, named or un- named, committed or uncommitted, is becoming the crucial factor. This location makes sense. Also, Vertical Real Estate was willing to work with the neighborhood groups, particularly Kingswood, when the raised issues. Gregory Silver commented that if this were not an acceptable location to the surrounding community, the room would be full of people opposing the tower. There will be hundreds of people opposing the other tower. If this particular one is approved, it would give Mr. Floyd the opportunity to engage those carriers who would otherwise go elsewhere and avoid a confrontation later on. Michael Mohr's comments: The Board must weigh its options. Is it more important to have information about who is going to be on the tower, and maybe those towers go into areas that cause some remonstration, or do we take a good project, a good tower, to where the neighborhood association and the area are workable and in favor. Do we take the chance the tower is going to be filled? It is a difficult decision. Mr Weinkauf further said that in this particular instance, the Board not only must look at location, location, location, but timing, timing, timing! Who's first in an area? If the right amount or enough information or type of information is not provided, maybe the decision made on the first petition would not be a good decision, especially if another petition is filed a few months later. s:\BoardolZoningAppeals \Minutes \bza2000oct 17 John Molitor commented that the Department has been asking the petitioners to provide the same type of information, even though it may not be quite as straight forward for them to furnish it when they are representing not a communications company but a tower company. This is awkward when two of them come in a revolving door. It does seem that the information received on the Vertical Real Estate Tower is complete and a full presentation has been made. It is ripe for a decision to be made this evening. In respect to the other tower alluded to, we don't know whether or not this one may be able, in the future, to accommodate some of the users that might theoretically go to that one. There was an offer of a commitment to accommodate users up to within a mile radius. There was not a specific commitment mentioned to erect the tower to a certain size or structure. Perhaps we could request a commitment from this particular petitioner to ask for a variance if necessary to go up to 150 feet if that does not seem to create any problems at this particular site. They have asked for a 120 foot tower and perhaps they would agree to make a commitment to ask for a variance to 150 feet, we could preclude having a problem -that the tower is not tall enough to accommodate people coming in next month. The recommendation is to consider the petition you have before you, but you may want to ask for a commitment that could conceivably accommodate a problem that might occur next month. Mr. Weinkauf asked if the petitioner would be willing to consider making a commitment to request a variance to a 150 foot tower. Mr. Helmke responded that the petitioner would be willing to request a 140 foot tower. Leo Dierckman asked if there were another cell tower within one mile of the proposed location owned by Mr. Helmke's client or any other cellular company. The petitioner's response was negative. Matt Mugavero of CIS Company, stated that his company does site acquisitions statewide. As a requirement, for carriers or tower companies, they do not locate a site close to another that could possibly detract business. There are no other structures or towers within a one mile radius that could accommodate the height. No other towers at all. A 140 foot tower would accommodate approximately six carriers. Michael Mohr asked if it were higher rent or more advantageous for the cell companies to be located on the top rather than a lower position? Perhaps someone would want to be on the top spot, it would all even out. Mr. Mugavero responded that it was a difficult question with not a definite answer. Some carriers would rather be lower, some would rather be higher. Mr. Weinkauf referred to a previous comment by Mr. Helmke and asked if building another tower at this location was realistic and conceivable. Mr. Mugavero stated that the monopoles his company builds are all capable of accommodating seven carriers, but they have not yet run into that situation. Technically, it can be done. s:\BoardolZoningAppeals \Minutes \bza2000oct 18 Mr. Helmke said those comments were one of the commitments that the neighborhood association asked them to make. Basically, when the petitioner committed to accommodating future cell tower requirements, the language was that "......this may require a future increase in the height of the proposed tower, which is the preferred alternative rather than the erection of a second tower at this location or any other reasonable, feasible, alternative." The most likely would be the future increase in height of the proposed tower, although adding another tower can work. Mr. Weinkauf commented that at some point in time, there will be a new group of people with a new petition and we need to educate the people within the community. When a tower is desired, it must appear before this body and there is a new group of remonstrators because a tower is proposed in their area. Mr. Weinkauf wanted to make sure that the Board understood the situation. How close can the towers be built? Is it possible to build two or three towers in a fairly close location? Mr. Mugavero responded that this company was also a paging company and an SMR company similar to Nextel. There is some history in being a carrier. It would be tricky, but not impossible. Mr. Helmke stated that the only property they are acquiring an interest in is the corner of the property and the balance is basically uninhabited. There is a lot of room if another tower was needed, although it would be tricky. The other crucial and maybe more important is that the mining quarry area is not going to turn into residences, the flood plain area is not going to turn into residences. This is not a situation where 10 or 15 years from now as the community develops, all of a sudden, the housing development is up to the cornfield and the tower is there and there are issues. Basically, there is land here that is not going to be used for anything like that. In summary, there is a clear need, the location is good and the site is good. Approval for the Special Exception is being requested at this time. Michael Mohr moved for the approval of SE- 107 -00, seconded by Leo Dierckman. The public hearing was then closed. Department Report, Laurence Lillig. The Department is recommending favorable consideration of this petition. The Department is requesting that a copy of the commitments be submitted for the file. There was further discussion regarding the commitments. Leo Dierckman withdrew his second; Michael Mohr withdrew his motion. Michael Mohr then moved for the approval of SE107 -00, Vertical Real Estate Telecommunications Tower, conditioned upon the following commitments: a) Minimize visual pollution by using hugging or flat -type antennae -if this type of antenna s:\BoardolZoningAppeals \Minutes \bza2000oct 19 is not feasible, the petitioner agrees to return to the BZA to request an alternative; b) The petitioner agrees to paint the tower a color to blend in with the background, such color to be agreed upon by the Kingswood Homeowners Association; c) In order to alleviate the proliferation of towers, Vertical Real Estate commits to accommodate the future cell tower requirements of any carrier within a one mile radius and Clay Township at the site; this may require a future increase in the height of the proposed tower, the erection of a second tower at this location, or any other reasonably feasible alternative. Seconded by Leo Dierckman. MOTION APPROVED with conditions. 3 in favor none opposed. 7h. Lattice Communications Telecommunications Tower (SE- 114 -00) TABLED Gregory Silver asked the Board to further delay this item to December due to his inability to appear before the Board in November. John Molitor responded that the normal process of the Board is that when an item is tabled, it is usually tabled to the following month. However, if Counsel would like to submit a written request to the Board that this item be carried over to a different date, it would be considered. The Board is not in a position to make that determination this evening without having an opportunity to consult with the petitioner as well. Mr. Weinkauf asked that the petitioner and Department consult with the Board; Mr. Silver's concerns would be taken into consideration. In view of the lateness of the hour, several petitioners expressed a willingness to return the following evening, Tuesday, October 24, for public hearing. 8h -23h. Pearson Ford (V- 117 -00; V- 118 -00; V- 119 -00; V- 120 -00; V- 121 -00; V -122- 00; V- 122 -00; V- 124 -00; V- 125 -00; V- 126 -00; V- 127 -00; V- 128 -00; V- 129 -00; V- 130 -00; V- 131 -00; V- 132 -00) Petitioner seeks Development Standards Variances of Sections 25.7.02 -7(b): Number Type of sign; 25.7.02- 7 -(c): Maximum Sign Area; 25.7.01(m): Suspended or Projecting Signs. The site is zoned B -3 /Business and is located within the U.S. 421 Overlay Zone. Filed by E. Davis Coots of Coots Henke Wheeler for Pearson Ford. Dave Coots of Coots, Henke Wheeler, 255 East Carmel Drive, Carmel appeared before the Board representing the applicant. This item was publicly heard at the September meeting. At that time, the question arose regarding the relocation of an existing pole sign on US 421 within the State right -of -way. Initially, it was intended that the pole sign would be moved, and the Department requested that it be eliminated altogether. Mr. Pearson stated that the pole sign was owned by Ford and not by him individually. The Board granted Mr. Pearson additional time to contact Ford Motor Co. Ford has indicated in a letter that they will remove and replace the Ford pole sign with a s:\BoardolZoningAppeals \Minutes \bza2000oct 20 monument mount sign. This sign would require a variance as to its size and its height, because it exceeds 8 feet; those variances are not before the Board this evening. Currently, the Board is being asked to consider six signs on US 421, and another sign spelling out Pearson Ford on the 106 Street elevation. The petitioner will withdraw the application for the suspended or projecting signs pursuant to the Department's recommendation. At this time, the petitioner is requesting approval of six signs presently existing on 421; however, they will be re- designed. The "New Vehicle Center" sign, the "Pre -Owned Vehicle Center" sign, "Collision Center" sign, "Parts," "Service Center," and "Trucks." The sign on 106 Street will read "Pearson Ford." Members of the public were invited to speak in favor of or opposition to these petitions; no one appeared. In response to questions from Chuck Weinkauf, Mr. Coots clarified the request for the signage. The signs are larger because they include the word "Center." V- 121 -00 through V- 132 -00 for projecting or suspended signs is being withdrawn. Laurence Lillig reported for the Department that the monument sign must return to the BZA at a later date for variances for size and height. The Department is also requesting a site plan showing the proposed location of the sign. The sign package also required ADLS approval by the Plan Commission, since the property lies within the 421 Overlay Zone; this petition has not yet been filed. The suspended or projecting signs were recommended for negative consideration; however, these have been withdrawn. Consistent with the recommendation for signage within the 421 Overlay Zone, the Department is recommending that the sizes be limited to the respective charts in the Sign Ordinance. Mr. Coots stated that the pole sign will definitely be eliminated and the petitioner will commit to that. The pole sign is now on State right -of -way and it will have to come down. The sign could not be re- installed without Department approval and it will not be re- installed. The petitioner is requesting to go ahead with the building, assuming ADLS approval from the Plan Commission, while they are going through the process of the monument sign on the Ford oval to replace the pole sign. The public hearing on the petitions was then closed. Leo Dierckman moved to approve V- 117 -00, subject to ADLS approval, seconded by Michael Mohr. APPROVED 3 in favor none opposed. Dave Coots committed to removing the pole sign either at the time the State removes it or the Board action on the monument sign and the variance application approval, whichever first occurs. If the variance is not approved on the monument sign, the Ford pole sign will be eliminated anyway at the time the State takes the right -of -way. s:\BoardolZoningAppeals \Minutes \bza2000oct 21 Laurence Lillig stated that the Department would not issue a sign permit for the pole sign to be re- installed. Michael Mohr moved for the approval of V- 118 -00, subject to ADLS approval, seconded by Leo Dierckman. APPROVED 3 in favor none opposed. Leo Dierckman moved for the approval of V- 119 -00, subject to ADLS approval, seconded by Michael Mohr. APPROVED 3 in favor none opposed. Michael Mohr moved for the approval of V- 120 -00, subject to ADLS approval, seconded by Leo Dierckman. APPROVED 3 in favor none opposed. 62h. 96 Street Office Campus (UV- 176 -00) Petitioner seeks approval of a Use Variance of Section 6.1: Permitted Uses to permit financial institutions, general office, and /or professional office uses on 6.05 acres. The site is located on the northwest corner of East 96 Street and Day Drive. The site is zoned S -2 /Residence. Filed by Charles D. Frankenberger of Nelson Frankenberger for Paragus Partners 1. Charlie Frankenberger, 4983 St. Charles Place, Carmel, appeared before the Board representing the applicant, Paragus Partners, in the request for a Use Variance. Also present on behalf of the applicant were Gary Ritz and Michael Manse. Mr. Frankenberger referred to previous comments regarding rezoning by Use Variance, however, the 96 Street Office Campus is distinguishable and meaningful in significant ways. The subject real estate is a 4.89 acre, rectangular parcel. The real estate is bordered on the south by the 96 Street corridor. The basis for the request includes the unique characteristics of the real estate, substantial changes in surrounding uses, and consistency with the Comprehensive Plan that suggests residential and medium to high intensity, regional commercial for this area. The real estate has remained zoned S -2 residential, while the character of the surrounding real estate has changed substantially. The Keystone corridor and 96 Street have emerged as commercially prolific areas. The manner in which the surrounding real estate has developed is inconsistent with the residential development of this real estate under the S -2 classification. This is demonstrated by a review of the surrounding uses. To the east of the real estate are Tom Wood Lexus, and Tom Wood Ford; to the south of the real estate, on the south side of 96 Street, there are various commercial uses, including a gas station, a strip center, a liquor store, a fast -food restaurant, and office buildings. To the west of the site are an engineering office, and a dental office, both of which exist by reason of previously granted use variances. By way of general background, a use variance was previously approved for this site for the Finance Center Federal Credit s:\BoardolZoningAppeals \Minutes \bza2000oct 22 Union. Then as now, a use variance was legally appropriate and acceptable to the residential neighbors. Then as now, commitments existed for substantial greenbelt buffers. The Finance Center encountered problems with recently changed Federal laws that limited the expansion of members for Credit Unions and therefore, they were unable to utilize the use variance. The applicant would like to develop the real estate in a manner that responds to change in circumstances. In addition, they want to be considerate of the residential neighbors and have done this in two meaningful ways. First, the applicant has worked closely with the neighbors and honored the neighbors' request to pursue a use variance as the means by which to achieve this development as opposed to a rezone. The neighbors have expressed their strong support of a use variance and their total opposition to a rezone. Out of deference to the neighbors, the applicant did not pursue a rezone and have instead requested a Use Variance. The neighbors find security in the fact that a use variance, unlike a rezone, permits limited exceptions to the existing ordinance without changing the existing zoning. For the residential neighbors, a use variance is a more tailored solution and one that is consistent with other use variances already granted in the immediate area for the dental office, the engineer office, and for this site in 1997. It is helpful to recognize that in situations like these, the granting of use variances by a Board of Zoning Appeals has been approved and permitted by the Indiana Supreme Court. The Court recognizes change circumstances, and the hardship that the changed circumstances impose on the development of the real estate as it is zoned. The plan being proposed provides for essential transition or step -down between residential and higher intensity commercial uses. This is accomplished in part through green belt buffers and recorded commitments. To the north of the parcel is a 100 foot buffer; on the sides are 40 foot buffers that taper to a 30 foot buffer moving south of the residential adjoiners. Green belt buffers account for 1.45 acres or 30% of the site. If the detention and retention areas are also included, 1.82 acres or 38% of the site remains undeveloped by roads and buildings. To a large extent, the developable portion of the site is substantially compressed by external pressures; those external pressures being what is necessary in terms of buffering to be considerate to the neighbors and also what is necessary to accommodate and improve 15 acres of drainage to the west. In order to address the unpredictability of future market demands, the applicant is requesting limited flexibility in size, height and appearance of the buildings. There will be no more than four buildings. Site one footprint cannot exceed 3,000 square feet; site two footprint cannot exceed 5,000 square feet; site three footprint cannot exceed 10,000 square feet; site four footprint cannot exceed 7,500 square feet. The buildings are residential in appearance and are brick exterior. The one story buildings will change in size depending upon which of the four building sites they occupy; the only exception is the number and location of porches. By varying the number and location of porches, the applicant hopes to achieve architectural compatibility without the monotony of architectural identity. Originally, only one -story buildings were planned; however, the s:\BoardolZoningAppeals \Minutes \bza2000oct 23 Department recommended that the possibility of two story buildings not be ruled out. The two story buildings will vary in size and type of porches, and these were displayed on the overhead. The lighting plan minimizes spillage onto the neighboring properties. Materials were displayed showing the color of brick, paint, stucco, and shingles. Members of the public were invited to speak in favor of the petition; the following appeared: John Kassabaum, 2503 Pleasant Way, West Drive, appeared before the Board as spokesperson for the area homeowners in favor of the architecture and orientation of the building as well as landscape buffering, and lighting. The proposed development is believed to be the best transition from auto dealerships, gasoline stations, fast food restaurants, etc. into a residential area. The 450 plus residents favor a use variance rather than a rezone due to technical issues. The proposed development is also consistent with Board's previous approval. The area residents believe a rezone would decrease the surrounding property values. The neighbors are in favor of a use variance; if the development complies with the Department's technical requirements, the residents request that the Use Variance be approved by the Board. Members of the public were invited to speak in opposition to the petition; no one appeared. Department report: Laurence Lillig reported that this development has had a change in the plan and has not been through Technical Advisory Committee review. The Department's position is consistent and recommends negative consideration. There are a number of zones in which the proposed development is permitted and the proper procedure for a development of this type is to file a petition to rezone to an appropriate district. Charlie Frankenberger explained that the plan originally submitted included a 2.11 acres parcel owned by Eldon Palmer. After conferring with the highway department regarding the required dedication, the alignment of roads, etc. it became apparent that the parcel was essentially not developable and it "disappeared." The 2.11 acre parcel was simply removed from the plan and revised plans were submitted. The type, size, and location of the office buildings have not changed. Instead of being perpendicular to 96 Street, the buildings are parallel and larger in size. Laurence Lillig could make no comment on the plan, since the plans had not been reviewed by the Department. Leo Dierckman suggested that the petitioner voluntarily table this item, thereby allowing the development an opportunity to be heard by the Technical Advisory Committee. s:\BoardolZoningAppeals \Minutes \bza2000oct 24 Mr. Kassabaum again spoke to the Board and pleaded with them to approve the Use Variance this evening. Charlie Frankenberger agreed to voluntarily table this item and return to the Board in November. The Board adjourned at 11:35 PM and will reconvene on Tuesday, October 24, 2000 at 7:00 PM in Council Chambers. Charles W. Weinkauf, President Ramona Hancock, Secretary s:\BoardolZoningAppeals \Minutes \bza2000oct 25 OCTOBER 24, 2000 49h -61h Chas. Frankenberger Members of gthe public in favor, none Membewfrs in opposigion, none Dept. Report, Liollig Mmohr, 2nd Lkeo, 159 -00, 3 -0 Dierckman 2nd Mohr 160 -00, 3 -0 V -162 2 Mmohr 3 -0 Mmohr, 2 Leo V- 163 -00, 3 -0 V- 164 -00 Mmohr 2 motion Leo 3 -0 V- 166 -00 Leo Motion, 2 Mmohr 3 -0 V- 167 -00 Mmohr Leo Dierckman 3 -0 V- 168 -00 Mmohr, 2 Leo 3 -0 V- 170 -00 motion Leo 2 Mmohr 3 -0 V- 171 -00 motion Mmohr 2 Leo 3 -0 V- 172 -00 Leo motion 2 Mmohr 3 -0 V- 174 -00 Leo moion 2 Mmohr 3 -0 175 Motion Leo 2 Mmohr 3 -0 33h Laks at Hazel Dell, Section 1, Common Area 1 (V- 137 -00) 34h. Lakes at Hazel Dell, Section 1, Common Area 2 (V- 138 -00) 35h. Lakes at Hazel Dell, Section 1, Common Area 7, V- 139 -00) Joe Scimia s:ABoardofZoningAppeals \Minutes \bza2000oct 26 Llig, signs erected prior to any approval. Bd of Public Wks approval granted for ro V- 137 -00 Mmohr, motion, Leo 2 °a 3 -0 63h North Augusya Subdivision, Section 2, Lot 29a Majestic Corner Plaza V- 177-00 Ron Bussell, atty. Discussion regarding hearing officerf. Adjourned at 9:30 PM s:\BoardolZoningAppeals \Minutes \bza2000oct 27