HomeMy WebLinkAboutCertified ltr from Ryan LewisTo: The Board of Zoning Appeals, Carmel, Indiana' 1
From: Ryan Patrick Lewis 4 ?010
Re: Demand for Ruling re Building Permit 646 N Johnson Drive 6
Docket No. 09020014
Date: November 18, 2010
COMES NOW Ryan Patrick Lewis "Lewis a resident of Carmel, Indiana, and respectfully
requests a ruling by this honorable Board regarding the Appeal of the Building Permit issued
with regard to a garage to be constructed at 646 N. Johnson Drive in Carmel, Indiana, Docket
No. 09020014.
In support hereof, Lewis states the following:
1. Lewis filed his application for a building Permit on or about the 26` day of September,
2008 and a building permit was issued on the 12` day of January, 2009 "Building Permit for
the construction of a garage at 646 N. Johnson Drive in Carmel, Indiana (the "Garage
2. An Appeal of the issuance of the Building Permit was filed by Petitioner in an untimely
manner. As a result of the filing of the untimely appeal, a stop work order was issued on the 26`
day of February 2009 and continues today.
3. The Carmel Board of Zoning Appeals Rules of Procedure, Article V. Appeals. states-
Section 2. (a) The appeal shall be filed with the BZA within thirty (30) days of
the decision of the enforcing official or board that is being contested.
[Emphasis added]
4. The Appeal was filed forty -two (42) days following the action to be appealed almost
two weeks after the deadline had expired and as such should not have been heard. On the 11
day of February, 2009, Petitioner was informed by no less than the Mayor of the City of Carmel
that the time for filing an appeal had expired and admitted to knowing about the untimliness of
the Appeal in the hearing as well as in deposition testimony in subsequent, pending litigation.
5. Further, the Carmel Board of Zoning Appeals Rules of Procedure, Article VI. Hearings
and Notice. states:
Section 3. (a) In appeals and applications for commitment amendments,
variances, special exceptions, and special uses to be heard by the BZA, a legal
notice of the public hearing shall be prepared by the petitioner and advertised in a
daily newspaper of general circulation in the County, not less than twenty -five
(25) days prior to the hearing, not including the date of the hearing itself.
[Emphasis added]
6. Notice of the public hearing was published on the 2 day of February, 2009, only
twenty -one (21) days before the hearing, and failed to provide the statutory period of time
required by the BZA's Rules of Procedure.
7. Notwithstanding the defective status of the petitioners to bring the Appeal due to being
untimely filed and the public hearing being scheduled without sufficient notice, the BZA did in
fact hold a public hearing on the 23' day of February, 2009, over the objection of Lewis and his
legal counsel.
8. The BZA is authorized to hear an appeal of an order, such as the issuance of a building
permit, for the purpose of making a determination as to whether or not in complies with the
zoning ordinances.
Carmel Zoning Ordinance Chapter 30: Board of Zoning Appeals
30.01 Appeals to the Board.
The Board may hear, review and determine appeals taken from any order,
requirements, decision or determination made by the Director or any
administrative official or board charged with the enforcement of the Zoning or
Subdivision Control Ordinance of the City of Carmel. All appeals shall be filed
with the Director within thirty (30) days of the action to be appealed. An appeal
shall also be filed where the Board is required to determine a zoning district
boundary or the existence of a nonconforming use.
and
Carmel Board of Zoning Appeals Rules of Procedure, Article V. Appeals.
Section 1. An appeal from any order, requirement, decision or determination
made by an administrative official or board charged with the enforcement of any
zoning ordinance shall be filed with the BZA.
9. Following the time for public comment at the public hearing, Staff Comments were
offered by the city of Carmel stating, in pertinent part, as follows:
"...the Permit has been reviewed, initially when the application was submitted...
it includes construction details, elevations, site plan, everything that is typically
required for the issuance of a permit and it was reviewed at that time. And when
the Department began to hear of concerns from the neighbors, the permit was
reviewed again and found to be in compliance with the Zoning Ordinance.
and in this instance the size of the structure and the size of the lot permitted an
accessory structure of this size.
in reviewing and re- reviewing and going out to the site the Department did find
that the structure was actually permitted under the Zoning Ordinance and the
requirements of the Ordinance.
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The garage is compliant with the Ordinance as it's written...."
10. It is clear that the Garage and the Building Permit for its construction were and
are without question in compliance with the zoning ordinances of the City of Carmel.
11. Following the staff comments, BZA Member Dierckman inquired to counsel for the City,
Mr. Molitor, as to whether they were to take into consideration the Johnson Acres covenants. In
response, Mr. Molitor stated, in relevant part:
"The BZA's jurisdiction is limited to issues respecting the interpretation of the
Zoning Ordinance itself and not of private covenants and restrictions which are
generally civil matters to be determined between the various homeowners in the
subdivision. And if one homeowner is aggrieved when action is taken by another
homeowner within the subdivision then generally the remedy there is through
private civil action in the courts.
There is case law to the effect that the BZA does not have power to enforce
covenants and restrictions of subdivisions.
These particular covenants have a peculiar provision that actually gives the power
to the Planning Department."
12. By virtue of having held the public hearing on the Appeal, the Board has a responsibility
and obligation to issue a ruling on such Appeal.
Carmel Zoning Ordinance Chapter 30: Board of Zoning Appeals. states:
30.02.04 Approval or Denial of the Appeal by the Board.
Following the public hearing on the appeal, the Board shall approve or deny
the appeal. In exercising its powers, the Board may reverse or affirm, wholly or
partly, or may modify the order, requirement, decision or determination appealed
as in its opinion ought to be done on the premises, and to that end shall have all
the powers of the officer or Board from whom the appeal is taken. Upon reaching
a decision on the appeal request, the Board shall enter into its records the reasons
for its decision and shall provide the appellant with a copy of said reasons, if
requested. The Board shall inform the Director and the appellant of its decision,
including all conditions contained as a part thereof. All further actions taken by
the appellant or the Director concerning the item that was appealed, including the
issuance of Improvement Location Permits, shall be subject to said ruling of the
Board. [Emphasis added]
13. However, upon the conclusion of the public hearing, instead of ruling on what the BZA
was authorized to rule upon whether or not the issuance of the Building Permit was in violation
of the Zoning Ordinances, the Board, at the first suggestion of Board Member Dierckman,
declared that it would table the issue for thirty days so that Mr. Lewis and the neighbors could
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"try to come up with some sort of compromise here that's going to perhaps reduce the size" of
the garage and to give the Plan Commission the opportunity to review and act upon the
covenants.
14. Mr. Lewis attempted to do exactly what Board Member Dierckman encouraged all
parties to do he attempted to negotiate bringing the back wall of the structure in considerably
and his efforts were met with absolutely zero participation by any of the complaining neighbors.
15. Now, some twenty months later, while the Plan Commission has taken up certain issues
via a lawsuit filed in Hamilton County Superior Court, the Board of Zoning Appeals has yet to
issue a ruling as to the issuance of the Permit.
16. The Appeal was filed in an untimely fashion, as was admitted by Petitioner both at the
hearing on the Appeal and in his deposition for the lawsuit. The decision was tabled pending
giving the Plan Commission time to review and take whatever action it deemed appropriate. The
Plan Commission has taken action and yet the BZA has not.
17. The issues before the Board of Zoning Appeals remain unchanged and are long overdue
for a decision. Those issues being whether or not the petitioners were entitled to bring an appeal
before the Board of Zoning Appeals_ whether or not the issuance of the Building Permit for
construction of the Garage was in compliance with the Zoning Ordinances which the BZA is
tasked to enforce and whether or not the construction of the Garage is in compliance with the
Building Permit and the Zoning Ordinances of the city of Carmel. The BZA, as discussed by
city counsel, has no authority to hear matters of covenants. No claim has been made that the
Garage is in violation of any city Ordinances and, in fact, the Garage has been repeatedly
inspected and found to be in complete compliance with the Ordinances and with the plans as
designated by the application for the Building Permit.
18. As a result of having to respond to an untimely appeal and abide by a stop work order for
twenty months. Lewis has incurred significant and unnecessary expense and waste.
19. The BZA has failed to follow, and, in refusing to issue a ruling in this matter, continues
to fail to follow its own rules and procedures for the filing and hearing of Appeals before the
BZA.
NOW WHEREFORE, the undersigned, Ryan Patrick Lewis, hereby respectfully requests that
the Board of Zoning Appeals issue a ruling in this matter without further delay.
Dated this T day of November, 2010.
Ryadi atrick Lewis
646 N. Johnson Drive
Carmel, Indiana 46033
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