Loading...
HomeMy WebLinkAboutMinutes BZA 02-27-124�SV O q 7 aQ' x '0 C i t y of arme �NUTANp MINUTES Carmel Board of Zoning Appeals Regular Meeting February 27, 2012 6:00 PM Council Chambers, Carmel City Hall Present: James Hawkins, President Kent Broach Earlene Plavchak Alan Potasnik Ephraim Wilfong Connie Tingley, Recording Secretary Staff members in attendance: Angie Conn, Planning Administrator Mike Hollibaugh, Director, Department of Community Services Legal Counsel: John Molitor Previous Minutes: On a motion made by Earlene Plavchak and seconded by Ephraim Wilfong: The Minutes for the meeting dated January 24, 2012 were approved as circulated. MOTION CARRIED UNANIMOUSLY On a motion made by Ephraim Wilfong and seconded by James Hawkins: The Minutes for the Executive Session dated February 21, 2012 were approved as circulated. MOTION CARRIED UNANIMOUSLY Department Report: Angie Conn Item #1 -3, Docket No. 12020007 V, Meridian Main, Parcel 1, would need suspension of the Rules of the Board of Zoning Appeals o Public Notice of eleven days met State Statute of ten days, but not BZA Rules of Procedure of 25 days Action: On a motion made by Kent Broach and seconded by James Hawkins: The Rules of Procedure were suspended to hear Items 1 -3. Legal Report: John Molitor MOTION CARRIED 4 -1 Potasnik negative) Nothing further to report on U S Architects/Bowen litigation discussed at the Executive Session WWW.CARMEURGOV Pagel of26 (317) 571 -2417 Carmel Board of Zoning Appeals February 27, 2012 Before the Traditions on the Monon Appeals, he will summarize the Special Rules of Procedure adopted to hear the Appeals Public Hearing: 1 -3. (V) Meridian Main, Parcel 1. The applicant seeks the following development standards variance approvals: Docket No. 11120012 V ZO Chptr. 23B.08.03.A building must have 2 occupiable floors. Docket No. 11120013 V ZO Chptrs. 27.08 23B.12.A.1 required parking spaces. Docket No. 12020007 V ZO Chptr. 23B.08.05.A minimum gross floor area of 15,000 sq. ft. The site is located at 1440 W. Main St. It is zoned B- 6/Business and lies in the US 31 /Meridian St. Overlay Zone. Filed by Joseph Scimia of Baker Daniels LLP, for Meridian 131, LLC. Present for the Petitioner: Jamie Browning, Browning Investments; Kim Reeves, Finance Group of Browning Investments; and Terry Hebert, Engineering Group of Browning Investments Browning Investments been business 30 years Pioneer in developing corner of 116 Street and Meridian Built over 35 buildings on three corners Over 4.5 million square feet in the corridor Purchased property at 131" Street and Meridian 4 years ago o Seventeen acres from St. Christopher's Episcopal Church Site rendering shown o Corner is Parcel 2, formerly owned by City of Carmel City acquired through reverse condemnation Parcel enables rest of development to occur Will be a taking by INDOT for US 31 improvements INDOT will also be taking property from Parcel 1 Site rendering with INDOT takings shown; approximately 3.1 acres Geometry of the taking makes development challenging Trying to build two 15,000 square foot buildings to comply with US 31 Overlay o Maximized number of parking spaces and still build two buildings 127 parking spaces; 150 required Need variance to allow for less parking on the site and still allow for sizeable floor plates US 31 Overlay requires two -story buildings; both floors occupiable With current market, second floor space useable for office space only Medical users want first floor for ease of ingress /egress for patients o Retail also wants first floor Originally granted variance to have 30,000 square feet of retail on this parcel Obviously retail does not work on second floor o Want only one -story users on this site Report by F C Tucker showing 897,000 square feet of unoccupied office space on Meridian Corridor Second story on this building would be adding another 15,000 square feet into completely over saturated market Rents are depressed Page 2 of 26 Carmel Board of Zoning Appeals February 27, 2012 Four years ago rents in the $23 range Rents now $16 Eliminating expenses, rents achieved would be $9, making project economically unfeasible; not worth building at this time Have captive customer for the building: a surgery center Department did not like building not being along 131 s Street Department wanted parking area blocked Modified site plan allows surgery center on north portion of parcel; site rendering shown Building along 131" Street on south portion would block the parking o Plan to make eye appealing architectural building Surgery center needs captive parking for patients to access building o Not compete with another building for parking spaces A building of 15,000 square feet takes out the northern parking spaces o Proposed reducing surgery center to 13,000 square feet o Allows northern parking spaces o Trying to get site plan that is agreeable to City and accommodates surgery center o $5 million project on fast track Hoping to be complete by end of 2012 From the Department Report, it suggests two -story buildings are economically feasible Other buildings look and feel like two -story buildings 116` and Guilford with dentist on second floor Another 8,000 square feet un- leasable Competing with buildings on Meridian Corridor without going to second floor of this building Two -story buildings are tough Elevators are slow Not a business model that makes any sense in this market ADLS application on file looks and feels like two -story building o Can be managed architecturally Instead of 30,000 square feet of retail, it would 15,000 Will look like buildings should look in Carmel Public Input Favorable: Leo Dierckman, 13316 Kickapoo Trail Second story generally a good idea Not applicable in this situation with this potential user Not a destination like Old Meridian or Rangeline Road Not a situation where second floor occupancy is critical for character of area Architecturally attractive building should suffice Ron Giedt, 4904 Rockne Circle, Sr. Warden for St. Christopher's Episcopal Church Page 3 of 26 Carmel Board of Zoning Appeals February 27, 2012 Had previously sent letter from church asking to withhold action until some issues in original contract with Mr. Browning were settled Sent copy of letter to Mr. Browning Mr. Browning called and they met He was withdrawing his request to withhold action with understanding they are working toward resolving issues Issues will be resolved before the ADLS meeting Believe current site plan could resolve their issues; benefiting both parties Public Hearing Closed Department Report: Angie Conn: Two -story buildings more appropriate along Rangeline Road or in Old Meridian District o Just south and east of this site is zoned Old Meridian; promoting two -story buildings o Felt this site would be good transition to buildings that front along US 31 Department in favor of the reduced number of parking spaces Department not in favor of the current site plan Recommending denial of two variances Site plan would be reviewed more at the Plan Commission/ADLS level Whatever BZA approves will affect the building form as far as height Later could not be built as two -story unless first -floor structure would be able to support a future addition of the second story Department recommended positive consideration of Docket No. 11120013 V, required number of parking spaces and negative consideration of Docket Nos. 11120012 V, 2 occupiable floors and 12020007 V, minimum gross floor area of 15,000 square feet. Discussion: Integrity of Overlay Zone should be maintained o Project strictly based on economics Site plan needs work Issues need to be resolved with St. Christopher's Church o Mr. Browning: Staff had suggested a right in/right -out in road along church property Church had no issue with variance request Access along church property will be resolved in ADLS process Will need Engineering approval for drive in right -of -way They plan a building that complies with spirit of the Overlay Architecturally it could look and feel like two- stories without being two stories o Roberts Camera building Economics are not there for two -story building Site plan acceptable to customer Medical use needs isolated parking for their customers Trying to be flexible and meet customer needs Q Board would like to see a site plan the City is comfortable with, then decide variances Page 4 of 26 Carmel Board of Zoning Appeals February 27, 2012 o Would like south building to be more architecturally pleasing for roundabout Just a rectangle Could be moved to screen parking City preferred north building be more south and west 30,000 square in one or two buildings was not the issue INDOT will take property for bridge and on/off ramps in 2014 Formal offer has been made to acquire property Depiction is accurate Mr. Browning: his last packet was his understanding of what Staff expected for parcel Made aware last week that there was different approach to layout Wanted cornerstone building along Main Street Two buildings will be sharing parking Important to have isolated parking with access for medical facility Could do things to make south building architecturally significant Uses could be limited to not permit traffic generators: gas stations, pharmacies, fast food o Mr. Browning not objectionable to those limited uses 127 parking spaces acceptable only with proposed two one -story buildings o Two buildings are taking place of potential parking Desire for parking lot to connect to church parking lot o By agreement, church utilizes extra parking on Sundays 100 percent retail had previous approval Would reduce size Variance to reduce from two -story Variance to reduce parking Board would like to see more work done with Department on site plan, rather than voting now Suggested wedge or L- shaped building for curve of street corner Needs eye- catching building rather than square or rectangle shoved into corner Mr. Browning: Did not have time to make that change to site plan They want comer to be building with architectural significance He has captive user for north building with significant investment Building will look like two stories Is not retail Will be doctors and physicians; becoming more popular along corridor He could not remember ever having a negative consideration from Staff He is amiable to coming back, but has someone ready now o Time kills all deals o Mike Hollibaugh: Had worked with Mr. Browning and suggested he move forward with this site plan Needs of potential user did not allow time for site plan with L- shaped building that would hug corner for retail user With development of interchange of Pennsylvania, Main Street and US 31, density might be difficult on that site Maybe this would be one place where the variance could be granted Mr. Browning could commit to type of building the Board is seeking Page 5 of 26 Carmel Board of Zoning Appeals February 27, 2012 Still needs Plan Commission ADLS approval Issues in Department Report were correct US 31 corridor is critical part of community Adherence to rules in corridor have been important Mr. Browning has been diligent in communicating even after Department Report Do not normally try to negotiate on the dais Integrity of US 31 corridor has always been important issue Department has been working on this development plan since November or December 2011 Mr. Browning proposed if approval was given for north building, there would be opportunity to negotiate corner building during ADLS It would be a building they would all be proud of Hopefully that would manage the issue with site plan Making it more acceptable project Board wanted more creative site plan that was favorable to Department Action: Mr. Browning tabled the project to the next meeting, March 26, 2012, to hopefully resolve any issues. The next two items were heard concurrently (Docket Nos. 11110010 A and 11110011 A) 4. (A) Docket No. 11110010 A: Traditions on the Monon HOA Appeal. The applicant seeks to appeal portions of determination letter issued by the Dept. of Community Services Director. Traditions on the Monon is located near the northwest corner of Range Line Rd. and Smokey Row Rd. (136th St.). The site is zoned PUD/Planned Unit Development. Filed by the Traditions on the Monon Homeowners Association (HOA). 5. (A) Docket No. 11110011 A: Traditions on the Monon Pulte Appeal. The applicant seeks to appeal portions of determination letter issued by the Dept. of Community Services Director. Traditions on the Monon is located near the northwest corner of Range Line Rd. and Smokey Row Rd. (136th St.). The site is zoned PUD/Planned Unit Development. Filed by Timothy Ochs of Ice Miller, LLP, on behalf of Pulte Homes. Present for the Petitioners: Steve Buschmann, Thrasher, Buschmann Voelkel, PC, representing HOA (Homeowners Association) Tim Ochs, Ice Miller, LLP, representing Pulte Company Judy Hester, Brazill Hester Law Firm, representing Mike Hollibaugh and the Department John Molitor, representing BZA John Molitor outlined special rules for this hearing. Homeowners Association (HOA) and Pulte Company both filed appeals on a determination letter issued by Mike Hollibaugh, Director Department of Community Services o Respondent will be Mr. Hollibaugh Article 7 Section 13 of Rules of Procedure was suspended at the January 2012 hearing o Replaced with Special Rule Page 6 of 26 Carmel Board of Zoning Appeals February 27, 2012 Joint hearing covering both appeals Held over two regular meetings: February 27 and March 26, 2012 Possibly continued after March 26 meeting Allotted approximately two hours and fifteen minutes for tonight's meeting and approximately two hours and thirty minutes for March 26 meeting Six topics will be covered; first three this meeting Banked parking Streets and curbs Landscaping and grounds Landscape audit Irrigation system discussion Miscellaneous Petitioners for HOA will present: banked parking, landscaping and grounds, miscellaneous Petitioners for Pulte will present: Streets and curbs, landscape audit, irrigation system discussion Each appellant will have fifteen minutes with respect to each topic Respondent will have five minutes to respond to any arguments At conclusion and responses to Miscellaneous topic, members of the public may make additional statements for fifteen minutes During Public Hearing, parties can cross examine any expert witnesses Time of cross- examination will not be deducted from any time allowed by the Chair for the party's presentation Board members may question Petitioners at the time the issues are presented Time of questions will not be deducted from any time allowed by the Chair for the party's presentation At conclusion of March 26 Hearing, Chair can ask BZA if they are ready to proceed to vote and close the Public Hearing If not ready, Chair can ask if the Hearing should be continued to a future date If continued, Chair can ask either or both appellants to prepare and submit Findings of Fact for the members to consider for a meeting in April Board received copies of a motion filed by Mr. Ochs regarding a motion to define scope of the Director's authority Similar to a motion to dismiss or motion for summary judgment Staff was not prepared to issue a response Mr. Ochs will address these issues during his discussion of the six topics This is Board of Zoning Appeals; not a Court of Law They will not go by the formal rules of evidence or trial procedure Cross examination of witnesses will be allowed Steve Buschmann, Thrasher, Buschmann Voelkel, PC, representing HOA Traditions on the Monon is a high -end, classic style townhome unit community Arranged along intimate streets, courtyards and the Monon Trail Initial price range was $200,000 to $325,000 Site rendering shown Originally created by PUD Ordinance in 2004 and never amended Page 7 of 26 Carmel Board of Zoning Appeals February 27, 2012 Primary plat filed in 2005 Final plat approved in December 2005 Originally developed by Centex Homes; acquired by Pulte Homes in 2009 May 2010 turned over to HOA At that time 22 of the 23 buildings had been completed: 120 of 128 units August 20, 2010 homeowners put together an Issue Report (included in BZA packet) o Number of meetings and discussions among the parties involved November 2010 Building #13 completed o Carmel would not grant a Certificate of Occupancy for building, partially based on issues o Pulte tendered three bonds Parking $39,980 Landscaping $32,290 Irrigation $10,000 o Certificate of Occupancy granted and building sold #1 Parking: Original PUD proposed 140 units with 280 garage spaces, 280 driveway /guest spaces (15 -17 feet), 80 internal guest spaces, 15 adjacent street parking spaces along Smokey Row for public and residents Parking proposal shown: Exhibit G, Appendix B and D to PUD 20 -foot streets, 15 to 17 -foot driveways for each of the 140 units Guest parking ratio 2.68 spaces per unit, overall 4.68 per unit March 2005 preliminary development plan: C2.1 Parking drastically changed Dropped from 140 to 135 units Still had 270 garage spaces /2 per unit Changed to 152 driveway spaces 76 units would have driveways 15 -17 feet, 76 internal, 15 adjacent Dropped guest parking ratio to 1.8, overall 3.8 Approved by City of Carmel Map shown of driveway spaces not long enough to hold a car (9 -11 feet) Driveway spaces all concentrated where there is least amount of interior parking Along Smokey Row where spaces are easily used by the public to access Monon Trail Banked parking on far end of parcel, affecting value of units Buildings cannot be torn down to make more parking Pictures shown of units along Third and Eleventh Streets o Cars parked in driveways stick out into 18 -foot streets Only 90 driveway spaces at 45 units long enough to accommodate cars 95 internal banked spaces added at edge of parcel Other proposed banked parking did not work Current guest parking ratio of 1.54, total 3.54 o Significantly below development plan Mr. Hawkins asked about parking plan that did not work Mr. Buschmann indicated proposed places on map o Spaces did not fit Page 8 of 26 Carmel Board of Zoning Appeals February 27, 2012 Banked parking was put in along the northwest section of the parcel at the service /access roadway and near the southwest end None added along the east edge Mr. Buschmann continued: Four banked parking issues; two the HOA was appealing First: Street lighting near intersections of streets Specifically in northwest corner banked parking area Director felt it would have been nice for safety, but was not necessary Section 9c of PUD states street lighting shall be provided near the intersections of streets and alleyways and along the Monon Trail When first developed, area in northeast corner was service road Now it is banked parking and a major intersection of 11 th Street and 3' Avenue, needing lighting Lighting is essential for residents /guests walking from the south portion of the parcel Second: Additional overflow curbing in the drain Indicated heavily banked area and retaining wall (northwest parcel) Drain in middle of parking area Drain comes out at retaining wall and flows down to creek (pictures) Street drain nearby creates cascading water to drain HOA asked for additional banked parking by the drain to prevent water flowing over it and hitting retaining wall Drain cannot absorb all the water from heavy rains Water rushes over it and gets to retaining wall Additional curbed parking behind drain to hold the water on the parking lot until drain can absorb it Believe it is a safety factor for the retaining wall Director felt it was nice, but was not necessary o Appeal was made with appearance of guardrail Director did hold there should be additional boards and it should be painted HOA was not sure if it should be wood or metal; it is wood It should be completed and Pulte did not appeal Discussion with Board: Second segment of the arguments covers the north end of the development o Director asked Pulte to re -cap the east wall At this time drainage is not a problem for the wall Anticipate it will become a problem Water flows to sub surface drain with man-hole size grate Water goes into pipe at base of retaining wall Also collects water from other places in the development Sometimes cannot accommodate the velocity of water Concern is so much surface water running into a big drain with a big angle Cannot accommodate water in a heavy rain Water discharges into a stream Page 9 of 26 Carmel Board of Zoning Appeals February 27, 2012 Curbing might create retention pond on parking area Do not want to create dams with the retaining walls HOA felt it was better in the parking lot than going into the retaining wall Response: Tim Ochs, Ice Miller, LLP, representing Pulte Company Also present: Tony Barbee, President Pulte Homes of Indiana; Matt Lohmeyer, Director of Land Development Pulte Homes, Dave Compton, Mike Barden, Pulte Country of laws; not whether looks, seems or feels right o HOA is trying to shift cost to Centex/Pulte Group utilizing BZA process Inappropriate for several reasons Scope of Director's authority is not appropriate Has good ideas for Traditions on the Monon, but is a member of Executive branch of government for Carmel Director of Department of Development, Zoning Administrator Scope of his authority is the Zoning Ordinance PUD ordinance Development plans and plats that were approved Subdivision Control Ordinance Director may rely on Carmel City Code, but BZA does not have authority to hear that BZA can hear appeals made by an administrator under the Zoning Ordinance The PUD is not part of the Zoning Ordinance BZA cannot hear it Mr. Hollibaugh does not have authority to bring it into this hearing o Pulte Group and Centex no longer own any vacant lots; all developed and sold Petitioners coming before BZA are property owners wanting to do something Zoning Ordinance is enforced These proceedings are against a party that is not an owner Zoning violations are enforced against the owner, not any previous owners Only here because they could not get Certificates of Occupancy unless a bond was filed They tried to work with HOA, but could not please them They are trying to utilize a process to force payment when it is inappropriate Banked parking: Process is based on decisions made by Mr. Hollibaugh This is Section One of Mr. Hollibaugh's letter Four determinations made: A: Banked parking area should install approximately 160 feet of curb along the sides of the eastern part of the lot according to standards of the Department of Engineering o Pulte has completed; no reason to appeal Page 10 of 26 Carmel Board of Zoning Appeals February 27, 2012 B: Installation of Light would be helpful for safety and security, not a requirement of City Ordinance or PUD and shall not be required If it is not in one of those, it cannot be required Pulte agrees it cannot be required Process for developing PUD is to approve the PUD Pursuant to City Ordinance and PUD, development must get development plan, primary plat, ADLS and detailed development plan approvals Every item submitted must meet Zoning Ordinance requirements, including PUD No light was ever shown in the banked parking area, which is being demanded by the HOA Determination has been consistent for over one year It is not the intersection of two streets but a parking area Not fair to ask original developer to install the light C: Installation of additional overflow curb adjacent to the retaining wall will not result in an improvement to the drainage design and shall not be required Not appealing that determination Mr. Buschmann has no engineering or professional support that the drainage design is inadequate D: Determination that the guardrail design must be completed, including installation of additional segments of missing rail material, approximately eight boards and additional coating of black paint shall be applied to railing already in existence in addition to paint required for the newer sections o That work has been completed Mr. Buschmann confirmed neither party appealed A or D Matt Lohmeyer o Banked parking Length of driveways credited to overall parking in the community Original plan did not require that every driveway meet the 15 to 17 feet That was a standard detail shown in the plans It was a standard but not a minimum requirement throughout the community Any construction or plotted documents for the community had driveways less than the typical standard shown There were areas planned for 15 -17 feet standard and count toward overall parking Pulte was not involved in the building shifting which limited the length of driveways Mr. Hawkins asked if the driveway spaces were never intended to be 15 feet but spaces were being counted as parking anyway. Page 11 of 26 Carmel Board of Zoning Appeals February 27, 2012 Mr. Lohmeyer Number of driveway spaces that were 15 feet or greater were counted. On approved parking plan, some driveways were asterisked and would meet or exceed the 15 feet length During process a couple of buildings along the northern edge were shifted Pulte was not involved but agreed to the banked parking Couple areas on the banked parking plan were not installed Through discussions and negotiations with the HOA they were not installed because landscaping had already been installed One pulled off the roundabout; center island feature in the community Deemed to be safety hazard Run off, need for curb, overall integrity and longevity of the wall Design for retaining wall completed by certified engineer Intent and design of back -filled wall was to carry and allow for drainage to penetrate through the stone and go down the back face of the wall, through the back fill material and into drain tile Tim Ochs In agreement with A and D B and C agree with Administrator; there is no requirement o Might be great idea, but requirement does not exist Do not believe there is any evidence for installation of additional overflow curb is appropriate Whole system designed by professional engineer, pursuant to stamped plans No evidence submitted, other than they don't think it drains right Design is appropriate and went through City process Backfilled with gravel Drainage tile underground along base of wall to catch water that seeps through gravel Request Appeal be granted Alan Potasnik Confirmed drainage was part of Mr. Lohmeyer's expertise as Director of Land Development with Pulte o Mr. Lohmeyer has been with Pulte Homes 9 years in the development capacity Prior to that ten years in highway industry and civil engineering firm prior Asked Mr. Buschmann if HOA or anyone contacted City Engineers to confirm proper drainage configuration o Mr. Buschmann did not know if City Engineer was contacted They did report seeing lots of water accumulating in heavy rain as part of discussion with Mr. Hollibaugh Judy Hester Mr. Hollibaugh, Director, and Mike McBride, City Engineer, were in attendance Pointed out Director had enough authority to get approximately $100,000 in bonds from Pulte o If not the Director, who has the authority? Section 13 in the PUD provided the Director does have authority with regard to final development plan Page 12 of 26 Carmel Board of Zoning Appeals February 27, 2012 Section 13 D: "The final development plan shall be a specific plan for the development of all or a portion of the real estate that is submitted for approval of the Director which shall include reasonable detail regarding the facility and structures to be constructed as well as drainage, erosion control, utilities and building information." Carmel is the way it is today because of the Board and Director; the way everything is done B Lighting: Developer was cited in September 15, 2010 (notice of correction) in regard to shorter parking Resolved with additional parking in northeast corner Extra street light requested Plenty of street lights on development plan; none shown there Director thought lighting sufficient This is not an intersection C Additional overflow curbing with drainage: Mr. Hollibaugh visited site in a downpour Based upon his education and experience, saw drainage was flowing as expected and planned No other requirements were made upon Pulte Mr. Hawkins clarified Mr. Hollibaugh did not feel additional lighting was necessary Mr. Broach clarified the 15 -17 feet driveways are not the issue, extra parking was the remedy Mr. Ochs, Streets and Curbs Will address each of the sub sections that were contained in Mr. Hollibaugh's original letter Presence of 20 remaining cracks in curbing Categorized as to severity by City Engineer Deemed repair essential to longevity of improvement and proper advance of stormwater Obligation of Centex was to construct curbs according to the approved plans That was done with exception of curbing that was added to banked parking area The rest of the curbing was constructed pursuant to the specifications contained in the approved plans; which was done Unfortunately, this is a private street: sidewalk, street, curbs and gutter If it were public, after curbs installed according to approved specifications, they would be inspected Performance bonds are posted for each component After inspection, developer requests performance bonds be released Then maintenance bond is put into place; it lasts three years After three -year period, any required maintenance is City of Carmel for any public improvement These curbs were installed in 2006 How long is developer responsible? Six years is too long for City of Carmel The declaration is in place and binding (Copy in packet of information) Articles of Incorporation, Section 2.2 state "the purpose of the association is to maintain the real estate" o The real estate was the entire project Page 13 of 26 Carmel Board of Zoning Appeals February 27, 2012 Section 4.4, page 10 area of common responsibilities, subpart B states "the private streets, sidewalks and off street parking spaces of the property" o Defining those areas as areas of common responsibility Section 1.4, page 2 defines area of common responsibility "as that portion of the property and those components of the townhomes for which the association has maintenance responsibilities" The Association has had from Day One the obligation for the maintenance responsibility of the curbs That is how this was set up It is not public roads or curbs Mr. Potasnik wanted to confirm Centex developed these as private, not public, streets and curbs that go with the infrastructure. Approved as private streets in the PUD. Remained private when taken over by Pulte and then turned over to HOA Mr. Ochs confirmed maintenance of these private streets, curbs, etc. is responsibility of HOA. This was set in PUD approval at City Council HOA exists from Day One. All owners are members of the HOA, including the developer. Control of Board of Directors changes over It is set up that funding always must come from the HOA for the repair of the curbs Declarant Control Period defined in Declaration Earlier of seven years Voluntary turn over by the declarant When 75% of units have been sold to third parties Until that time, any deficiency in outlays of money to take care of HOA required expenses must be met by developer That occurred end of 2007 HOA now has responsibility for curbs Inappropriate for HOA to suggest that BZA can force developer to come back after curbs have been in place almost six years and suggest it is Pulte's responsibility for repairs o Everything in public record pertaining to this project and titled to their lot said these were private streets Mr. Ochs continued: Concrete driveways at Building #7 and leveling of asphalt or new driveways at Buildings #14 and #15 Everything required was installed according to plans, in the manner it should be installed by approved development plans that went through the City process Every owner would like everything to be flush, but not everything is Is that a Zoning Ordinance issue? A lot of issues to be discussed by the HOA is no different than if someone built a single family home There may be things they do not like Do they come to the BZA every time one of those issues pops up? BZA is limited to the Zoning Ordinance Page 14 of 26 Carmel Board of Zoning Appeals February 27, 2012 There is nothing in the Zoning Ordinance to suggest having an elevation difference between the asphalt and the concrete driveway is inappropriate Can the HOA cite some other standard? Part C: Director determined in four identified locations the edge between the asphalt and the turf shall be improved by establishing a uniform, clean, defined edge of pavement Areas located at ends of dead -end drives (indicated on site plan) Pulte has completed that work and in compliance (Sub- section C of Part 2) Mr. Buschmann Concur with Director on Item A, curbing (photos shown) Breaking up badly City Engineer determined it was appropriate that curbing be repaired HOA asked that be done Driveways (photos shown) o HOA thought it had not been top coated Additional top- coating will impact drainage negatively Director did not recommend top- coating, but bringing driveways down HOA would accept that; something needs to be done Curbs at ends of driveways o Lots of agreements reached after lots of meetings Pulte agreed to perform pavement cores to validate actual pavement and concrete with special attention to pavement ends Pulte said they did it Photos shown with rough ends, not rounded off, quite rough Preference of HOA to have these also curbed Original plan called for curbing along drives and parking Director felt it was a drainage issue In all negotiations, the Mayor agreed to allow HOA to try to get these to be dedicated streets Plat says they are private drives and they are not arguing that November 2010 they filed with Board of Public Works to dedicate streets o That has been tabled until all of this is resolved o Condition of streets is important for that proceeding Pictures are not in packets, but will be submitted; Mr. Ochs has copies Mr. Ochs: Realized he misstated in last issue (Item C) o Mr. Hollibaugh's letter stated in the four identified locations the pavement/turf transition, i.e. the edge between asphalt and turf, shall be improved by establishing a uniform clean defined edge of pavement, and through the careful establishment of turf in those areas, including: proper soil preparation, removal of stones, etc.; seed application and mulching with clean straw. By the time of this letter in October, because of the weather that work has not been done Pulte agreed to do that work and will complete it to Mr. Hollibaugh's satisfaction Page 15 of 26 Carmel Board of Zoning Appeals February 27, 2012 Ms. Hester They are private roads as opposed to public roads o Guilford Townhomes and Guilford Reserve are private developments similar to this situation PUD with private infrastructure to be turned over to HOA Later the developer would not be pulled back into negotiations Here the HOA was in odd transition Defect list had been brought up and HOA had not yet been turned over If not Mr. Hollibaugh, who would help? Because it is a PUD, does not mean you cannot touch it There was a time when Centex/Pulte was the HOA and should be correcting problems Believe cracks in curb were damage caused by the developer and faulty work Not at the stage that developer is not pulled back in o Some curbs have been corrected selectively Why not the ones Mr. Hollibaugh said needed to be corrected before it is turned over completely to HOA? If it happened in 2006 when Pulte was the HOA, why wasn't it corrected? There isn't any other process to inspect a private infrastructure Requesting all curbs and cracks be fixed With regard to the driveway not being flush Standard established from Mr. Hollibaugh's inspection is that all of the driveways were flush except for one Mr. Hollibaugh found that raising the street would affect drainage He asked that it be made flush to comply with the standard The final development plan does have straight lines They said they are going to correct that and we are hearing that for the first time tonight With regard to other curbs the HOA wants Mr. Hollibaugh found they are not on the final development plan If installed, they would negatively affect the drainage Mr. Hawkins questioned the City Engineer, Mike McBride Expected life of these private roads before they require maintenance for curbs and streets Mr. McBride: Typically at least five years on pavement this thickness o Some routine maintenance can extend that City does not do certain types like cracked pavement City does mill and resurface program Asphalt does need maintenance on regular basis Five years is definite with a decent base Ten years is expected City cycle starts at ten years Page 16 of 26 Carmel Board of Zoning Appeals February 27, 2012 Curbs are little different issue From what he had seen, he would not classify the asphalt pavement as inferior Curbs would not be classified as inferior installation or material A lot of times they see lack of care in installation of the building product Once infrastructure is in place, contractors get a little careless in construction of dwellings and using heavy equipment over the curbs See some cracking In a public street scenario, would do an inspection at the end of maintenance bond cycle We would require some replacement in curbs that have been shown in this development Difference is this is private street and City does not typically do that type of inspection, as they would on a public street If the City inherits these streets through the HOA request, the City would eventually have to do some repair on these streets Mr. Hawkins asked Mr. Ochs when streets were originally constructed. Mr. Ochs: Curbs and base coat/binder of street were installed in 2006 o Contractual relationship put in place whereby the HOA has the responsibility Regardless of turnover or not Nothing in any provision of any ordinance that the City of Carmel has that makes turnover control of HOA a magical date It might make sense, but they must abide by ordinances and rules that are in place There is none that developer is required to maintain curbs indefinitely that are private if they were installed properly o Mr. McBride did not give any indication they were not installed properly The maintenance obligation is the HOA HOA does not want to pay for it They are trying to get developer to do it Ms. Hester misspoke: There were two areas where flushness was an issues; not just one o It is issue caused by snow plows and heavy equipment Mr. Hawkins: Was this contractor equipment or snow plows the HOA would have hired Mr. McBride: No way to confirm, other than heavy equipment of some kind City's plows had not been back there Normally it is the early life of curbs that crack Concrete continues to strengthen over time Often construction equipment ran over the curbing when they see the cracking Page 17 of 26 Carmel Board of Zoning Appeals February 27, 2012 Mr. Ochs: It could be garbage trucks or moving trucks o Point: HOA's responsibility Ms. Plavchak: At some time Pulte was Board of Directors of HOA, why didn't they fix it then? Mr. Ochs: They did do repairs as stated by Ms. Hester o When it was clear damage was done by construction work for a home site Ms. Plavchak: Others that were not repaired were done prior to Pulte becoming the builder? Mr. Ochs: Centex was always the builder of all the townhomes They do not know who caused the cracks; what caused the cracks and when each individual crack appeared That is the difficulty of a private road That is why that provision is put into place During initial ownership period until turnover occurred, they had the obligation of covering all shortfalls because there was a cap put on the maximum regular assessment that could be made against individual homeowners Years down the road, they no longer have that obligation They are private roads with contractual obligation on the HOA to take care of that They are not going to argue that maintenance is necessary; the HOA should make it, not Pulte Mr. Wilfong: Year of transition? Mr. Ochs: There are two answers From the terms of the declaration, the first trigger hit was 75 percent of the units sold Pulte /Centex tried to get the owners to be the new board members That was when the issues started happening 2010 the owners started functioning as the Board of Directors for HOA During that time a management company was hired to manage the property like any other developer /owner controlled association The triggers are the earlier of: Seven years from the recording of the declaration Seventy -five percent of the units sold to third parties Voluntarily done by the declarant When roads were finished in 2006, they could have turned over the association Who controls the Board of Directors has no point in this discussion No ordinances discuss it Question is: were the curbs installed properly and Mr. McBride said they were Page 18 of 26 Carmel Board of Zoning Appeals February 27, 2012 Mr. Wilfong: What was the original incorporation that the seven years would go forward from that time Mr. Ochs: Filed in Recorder's Office September 26, 2005 Mr. Broach: Cost estimate on Item B (elevations) If it were a construction issue, would this be a lawsuit? Mr. Ochs: It is their understanding it involves three buildings with average of six driveways each: 18 driveways Different costs if they replace or if they mill Cheapest in excess of $12,000 each If something is built inappropriately, it would be a warranty claim against the builder Alan Potasnik to Mike McBride: Private roads are not typically inspected before performance bond is released Are private streets cored? Mike McBride: Level of inspection by Engineering on any private street is much reduced from a public street throughout the process Level of observation and amount of testing is much reduced Many times private streets are requested by a developer for a number of reasons Cost saving measure From typical standard a public street is much wider Thicker pavement depth Higher traffic volumes expected on public streets Ability for homeowners to control more tightly Inspections are less in private scenario They are out there They watch the roadways go in Ask for proof rolling of the sub -grade before it is paved Even in public streets, they do not request a core, simply observe and measure depth as asphalt goes down Mr. Potasnik: Final dispensation of bond From routine inspections, does anyone ever notice any signs of deterioration or that it is not typical or correct? Page 19 of 26 Carmel Board of Zoning Appeals February 27, 2012 Mr. McBride: This site and most cases with private streets, majority of concern is with elements of infrastructure that are underground o Storm sewer, sanitary sewer o Much harder to address and catch issues o Can have catastrophic results Surface level stuff, curbing and pavement, do not offer same type of risk Level of inspection of underground stuff is much higher They did not know depth of pavement because they did not watch it go down o Requested cores to verify depths Mr. Ochs: cross examined Mr. McBride: Employee by name of Gary Duncan Was Mr. Duncan aware five to six cores were voluntarily done by Pulte and their results Mr. McBride: Gary Duncan is Assistant City Engineer Yes, in all cases cores met the depth required by the plans Mr. Hawkins: How often are private streets converted to public streets Mr. McBride: There is still a fair number of private streets in Carmel Engineering Department discourages Try to push very hard in development approval process that private streets be built to public street specifications They were not successful in this case All review comments suggested these be built to public standards Number of requests recently because public thinks Board of Public Works will look favorably on request Several have been accepted as public; several have not Usually based on how close they are built to public street conformity o It is at the Board of Public Work's discretion Ms. Plavchak: If the maintenance of the private streets is the responsibility of the HOA and they are allowed to fall into disrepair to the point of a safety issue, at what point does the City become involved in making sure they are safe? Mr. McBride: City has extensive property maintenance codes Falls into Code Enforcement under Mr. Hollibaugh Engineering Department would be called up to be expert witness to do the inspection and determine when those things are unsafe City would be enforcing code upon the HOA to maintain Page 20 of 26 Carmel Board of Zoning Appeals February 27, 2012 Mr. Ochs cross: Are code and ordinances just mentioned from the Carmel Zoning Ordinance or sections of the Carmel City Code? Mr. McBride: Does not believe it is addressed in the Carmel Zoning Ordinance Mr. Buschmann Pointed out the turnover was May 2010 Immediately after they started raising issues Many of the photos taken in that era Mr. Molitor suggested Mr. Hollibaugh would know which codes or ordinances would be involved in the enforcement Mr. Hollibaugh: Property Maintenance Code is not in the Zoning Ordinance; it is in the City Code o That was not the intent when the Department tried to get the curbs repaired Mr. Wilfong to Mr. Ochs: In situations of private infrastructure, how much information is given to the HOA members and future Board to what they will have to take care of? Mr. Ochs: The Declaration is part of title to every lot/owner The Declaration gives very specific details as to what portions of the property must be maintained by the HOA It is a contract amongst the parties to that Declaration All of the owners are parties in that Declaration, as well as the HOA itself If the HOA is not maintaining any aspect of the area of common responsibility as defined in the Declaration, a homeowner has a cause of action under the Declaration against the HOA to force them to maintain those roads The source of funds comes from all of the owners If there is a state of disrepair and an owner is not happy, that right exists Mr. Wilfong to Mr. Buschmann: From discussions, what does HOA believe their ownership is in the private infrastructure Mr. Buschmann: In the Declaration, it is their responsibility for ongoing maintenance Issue here is this is developer/builder damage Ten years down the road it will be normal wear and tear They concur with Mr. McBride that the curbs were damaged as part of the construction process and should be repaired by people who did it In a turnover, there is always the issue of what has been done in the construction process and what is normal wear and tear Page 21 of 26 Carmel Board of Zoning Appeals February 27, 2012 They should have a longer life than this Making it contractor /developer responsibility Mr. Wilfong to Mr. McBride: Mr. Buschmann said you had stated this was not normal wear and tear Mr. Wilfong thought Mr. McBride had said from what he had seen, it was normal for the life cycle Are there different scopes for normal? Mr. McBride: The pavement itself is representative of normal wear and tear What they have seen on the curbing and curb sections requested for replacement: Marked and visually inspected by the Engineering Department Marked for replacement as they would be on a public street Typical inspection at the end of the three -year maintenance cycle on public street They have visual standards and rule of thumb standards as guidance for replacement They were not on site, but the cracking is indicative of curbs that were not properly installed, damaged during construction or not backfilled correctly Mr. Ochs cross: There is cracking but Mr. McBride does not really know who or what caused it If a homeowner had work done on his house: The contractor pulled up with a heavy truck onto the private driveway; the driveway cracked If the homeowner complained to the Engineering Department, what would be the response? Mr. McBride: That is correct That would be the homeowner's maintenance responsibility Mr. Wilfong to Mr. Buschmann: If you think this is negligence by Centex or some heavy equipment, how is that different from what Mr. McBride was saying was normal wear and tear? Mr. Buschmann: Normal wear and tear people are not driving over the curbs They may go over them on a driveway, but not other locations o That is where they believe it happened There have been no complaints on the streets; only curbing Mr. Wilfong to Mr. Buschmann: Again, from discussions, what does HOA believe their ownership is in the private infrastructure Mr. Buschmann: Just recently on the case Page 22 of 26 Carmel Board of Zoning Appeals February 27, 2012 They have not spent a long time on how to operate the HOA from this point forward o He represents a lot of HOA's He was not brought in to look at ongoing, but at damage that had occurred before they actually got control Mr. Molitor suggested a break before going on to the Landscaping and Grounds segment. Five minute break Mr. Buschmann: Director made six findings with Landscaping and Grounds Only talking about the retaining walls Under Section C -2.4 in development plan, a typical retaining wall has the soil even with the top of the retaining wall Retaining walls have significant differences The north retaining wall has 7.25 inches difference down the length of the wall (photo) Director found at the time the presentation was made the defects were not identifiable Recent photos show they are identifiable Soil is significantly below retaining wall caps; does not meet C -2.4 The east retaining wall Director said there were problems with the cap and it was to be replaced It may or may not have been replaced He thought they had done that, but soil does not meet top of wall as required in C -2.4 The west retaining wall was not on the list, but has the same problem Significant discrepancies between top of soil and top of wall They believe C -2.4 requires soil be along top of retaining wall to keep water from getting down behind They ask that Pulte be required to re -grade these areas to comply with the development plan Mr. Ochs: Item A: They agree to complete as shown subject to Mr. Hollibaugh's approval Item B: They believe has been corrected Item C: They agree to complete to Mr. Hollibaugh's satisfaction Item D: Item of contention They agree with Mr. Hollibaugh's findings that the defects are unidentifiable and shall not require repair There is nothing to suggest there is anything wrong Item E: Item of contention o There is nothing to suggest there is anything wrong with the exception of the cap stones Those have been repaired If they are not to Mr. Hollibaugh's satisfaction, they will be corrected Page 23 of 26 Carmel Board of Zoning Appeals February 27, 2012 Item F: Agree with Mr. Hollibaugh Mr. Lohmeyer will discuss the retaining walls and elevation of the sod Mr. Lohmeyer: Retaining walls were designed and constructed to accommodate and allow for drainage behind walls HOA concerns were around drainage Stone and drain tile behind each wall to accommodate water Mr. Ochs: Small difference in elevation is desirable for drainage Retaining wall construction details were shown Engineer putting together set of construction plans meets with Dept. of Community Services and Dept. of Engineering to cover any issues They would ask Engineering for Carmel specifications He believed Mr. Buschmann showed the Carmel retaining wall specifications Sod is never above the retaining wall Designs of these retaining walls were for these specific retaining walls and part of the development plans that were approved by the City of Carmel The walls were done consistent with those designs Agree with Mr. Hollibaugh that nothing that has been done is subject to fix Request Mr. Hollibaugh's decision be confirmed with respect to Item D Ms. Hester: Appreciate Pulte's cooperation on several issues Demonstrates expectation that Mr. Hollibaugh has authority in this area Item D: Mr. Hollibaugh stated detrimental to do the backfill and sod requested by the HOA Adequately constructed Pulte's action acceptable to Mr. Hollibaugh In line with the plan Item F the egress had been filled in o Nothing more needs to be done by Pulte Mr. Hawkins asked Mr. Buschmann if the HOA agreed with Items A, B, C and E Mr. Buschmann: Item E: Capstone to be replaced o New capstone created discrepancy between sod and top of retaining wall They are in agreement with Items A, B and C Item F: Ask Pulte to install sod They did not; HOA did City said it needed approval or needed to be removed Board does not need to be concerned with Item F Mr. Ochs: They would have no objection if the HOA sought approval for the additional fill Page 24 of 26 Carmel Board of Zoning Appeals February 27, 2012 Mr. Buschmann: Documents shown that were not part of the BZA packet were submitted for the file and to Mr. Ochs Mr. Ochs: Ms. Hester suggested Pulte's compliance with some of the issues is admission of Mr. Hollibaugh's authority o That is false Do not mistake a business motivation or sense of civic duty for admission of liability Everything they are doing costs Pulte money If an item can be repaired, sometimes it makes sense from a business perspective to go ahead and do it Sometimes in discussions with the HOA, they decided to just do it, but they have to draw the line somewhere It is not an admission of Mr. Hollibaugh's authority Mr. Wilfong question to Mr. Molitor Three sections heard o How is the Board to look at disagreed items? Mr. Molitor: At end of process, Board will probably want to review proposed Findings of Fact from all sides o May want to take under advisement until April meeting His expectation was to go down list of contested items or every item in Mr. Hollibaugh's letter o Indicating whether he should be affirmed or reversed In what respect would he be reversed? What Findings of Fact would support that? Will probably need to vote on each item separately Too difficult to make one motion to cover all items Three choices from submitted information Then a motion will need to be made to accept votes on all 18 topics None of this precludes attorneys or Board from another solution Mr. Ochs: Agreed with Mr. Molitor Within Board's discretion Suggested vote on first three issues at this meeting Fresh in Board's mind now May be hard to recall two months from now Based on vote, Findings could be submitted next month for approval Mr. Hawkins: Ask City for Findings of Fact that eliminated a number of the issues that were resolved o Focus on remaining issues Each party could provide Findings on those specific outstanding issues Page 25 of 26 Carmel Board of Zoning Appeals February 27, 2012 Mr. Molitor: Any inclination to vote at this meeting? It is lawful for Board to make site visits o Difficult to coordinate all three parties at site for fair information Mr. Hawkins: Preferred to review material /information Not imperative to visit at this time March 26 meeting will hear remaining three issues Try to reach decision in April; need Findings of Fact 6 -7. ABLED TO MARCH 26: (V, UV) North Augusta, Lot 4 Retail Use. Deeket No. 11120010 UV ZO G—hptr-. 5.01 23G.03 -Permitted Uses in S 1 distriet. n Dee'k -e N 111 V ZO Ch -37.03 N Mu l b The site is leeated at 9799 N. Miehigan Rd. It is zened S e Adjournment Motion: On a motion made by James Hawkins and seconded by Ephraim Wilfong: The Meeting be adjourned. The meeting adjourned at 9:30 PM. Approved this day of 1 &IP4 L Presid t James R. Hawkins a tx�- !�t Secretary Con rTin y Filename: 20120227.doc MOTION CARRIED UNANIMOUSLY 20/4 Page 26 of 26