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HomeMy WebLinkAbout04-23-12 Pulte Proposed FindingsIN THE MATTER OF THE APPEAL REGARDING THE TRADITIONS ON THE MONON OCTOBER 28, 2011 DETERMINATION BY DIRECTOR OF COMMUNITY SERVICES OF THE CITY OF CARMEL CITY OF CARMEL BOARD OF ZONING APPEALS Docket No. 11110010 A Docket No. 11110011 A PULTE'S PROPOSED FINDINGS Pulte Homes of Indiana "Pulte submits the following Proposed Findings with regard to the appeals filed by Pulte and the Traditions on the Monon Homeowners' Association "Association arising out of the October 18, 2011 letter "Determination by the Director of the Department of Community Services "Director 1. BANKED PARKING AREA 1A. Installation of Curbing. 1. Neither Pulte nor the Association appeals the Director's determination; accordingly, it is not before the Board, and the Board need not address it. 1B. Light Pole. 2. The Director considered the Association's request that a light pole be installed in the parking area. The Director determined that the light pole was not required under any City Zoning Ordinance or Ordinance No. Z- 464 -04 "PUD 3. Pulte has not appealed this determination. 4. The Association has appealed this determination and contends that a light pole is required because the PUD requires street lighting at or near intersections of streets and alleyways. 5. The Board finds that the parking area at issue is not an intersection. 6. The Board has reviewed the PUD and finds that there is no requirement that Pulte install a light pole in the parking area. 1C. Overflow Curb 7. The Director considered the Association's request that the parking area's drainage design be altered to require an overflow curb. The Director determined that installation of an additional overflow curb adjacent to the retaining wall would not result in an improvement of the drainage design and was not required. 8. Pulte has not appealed this Determination, 9. The Association has appealed this determination, and argues that an independent engineering review of the design of the retaining wall is required. 10. The Board has reviewed the PUD and the City Zoning Ordinances and finds that there are no provisions regarding the construction of this retaining wall. 11. The Board is empowered to hear appeals involving only enforcement of zoning ordinances. See Carmel Zoning Ordinance 30.01; Ind. Code 36 -7 -4- 918.1. 1C is not a zoning issue; therefore, the Board has no jurisdiction to hear it. 12. Alternatively, the Board has examined C2.0 (Tab 5 of Pulte Submission); C3.9 and C2.10 (Tab 8 of Pulte Submission). The Board finds that the retaining wall was constructed pursuant to the plans approved by the City of Carmel. Moreover, the construction of an additional overflow curb would interfere with the intended drainage design of the retaining wall and overflow parking by preventing drainage from flowing to the intended drainage swale. 13. The Board finds in Pulte's favor on this issue. 1D. Guard Rail Paint 2 14. The Director considered the Association's request regarding the parking area guard rail and found that Pulte was required to install approximately eight (8) boards to complete the guard rail design. The Director also directed Pulte to paint the guard rails. 15, Pulte has not appealed this determination. 16. The Association appealed this determination to seek confirmation that timber is an approved guard rail material, 17. The Board finds that neither the PUD nor Carmel City Ordinances contain guidelines regarding guard rail materials. 18. The Board is empowered to hear appeals involving only enforcement of zoning ordinances. See Carmel Zoning Ordinance 30.01; Ind. Code 36 -7 -4- 918.1. The Board finds that 1D is not a zoning issue; therefore, the Board has no jurisdiction to hear it. 19. Alternatively, the Board finds that the request by the Director has been fulfilled and the appropriate boards have been installed. 2. STREETS AND CURBS 2A. Cracks in Curbing. 20. The Director considered the Association's complaints regarding pavement defects. 21. With regard to 20 cracks identified in the curbing, the Director determined that Pulte should repair all curbs with cracks rated as "category 2, 3, 4, and 5" in accordance with the standards of the Carmel Department of Engineering. 22. Pulte has appealed this determination. 23. The Association has not appealed this determination. 24. The PUD ordinance is the exclusive means of exercising zoning control over the Traditions on the Monon. Ind. Code 36- 7- 4- 1504(c). 3 25. Section 1.2 of the PUD ordinance states, "Development of the District shall be governed by (i) the provisions of this Traditions on the Monon Ordinance and its exhibits, and (ii) those provisions of the Carmel /Clay Zoning Ordinance specifically referenced in this Traditions on the Monon Ordinance. In the event of a conflict between this Traditions on the Monon Ordinance and the Carmel /Clay Zoning Ordinance or the Sign Ordinance, the provisions of this Traditions on the Monon Ordinance shall apply." 26, The Board has examined the PUD. The Board finds that the PUD does not address the repair of cracks in curbs. In addition, the PUD does not specifically incorporate any provision from the Carmel /Clay Zoning Ordinance regarding curb repair requirements. 27. The Board finds that the Director exceeded his authority in making this determination. See Burrell v. Lake County Plan Commission, 624 N.E.2d 526, 532 (Ind. Ct. App. 1994) ("Mt is well settled that discretion in the formulation of standards is to be exercised when an ordinance is created, rather than when an ordinance is applied 28. Moreover, the Board is empowered to hear appeals involving only enforcement of zoning ordinances. See Carmel Zoning Ordinance 30.01; Ind. Code 36- 7- 4- 918.1. 2A is not a zoning issue. The Board does not have jurisdiction to hear a dispute regarding cracks in curbs. 29. Alternatively, the Board has examined the Declaration, (Tab 3 in Pulte Submission). Section 8.4 provides, "Minor cracks in concrete and asphalt including streets are inevitable." The Declaration further provides that the Association is responsible for repairing '/a inch cracks in concrete. 30. The Board finds that the curbing was properly installed, and cracking is normal for concrete. Moreover, the curbing that has cracked was installed more than three (3) years prior to the complaints by the Association, which exceeds the maintenance obligation period that 4 would ordinarily be imposed on the developer of a project that contained public streets and curbs pursuant to the Carmel Subdivision Control Ordinance and Zoning Ordinance. 31. It is the Association's responsibility to repair the cracks in the concrete. 32. The Board finds in Pulte's favor on this issue. 2B. Addition of finish asphalt top coat and re- installation of driveway pad to units 7, 14, and 15. 33. The Director considered the Association's complaints regarding the finish asphalt top coat around Buildings 7, 15, and 15. 34. The Director determined that Pulte should re- install the driveway pad to each unit in Building 7 and that concrete drives around Buildings 14 and 15 should be repaired either through milling of existing asphalt or reinstallation of the driveway pad. 35. Pulte has appealed this determination. 36. The Association has not appealed this determination. 37. The PUD ordinance is the exclusive means of exercising zoning control over the Traditions on the Monon. Ind. Code 36- 7- 4- 1504(c). 38. Section 1.2 of the PUD ordinance states, "Development of the District shall be governed by (i) the provisions of this Traditions on the Monon Ordinance and its exhibits, and (ii) those provisions of the Carmel /Clay Zoning Ordinance specifically referenced in this Traditions on the Monon Ordinance. In the event of a conflict between this Traditions on the Monon Ordinance and the Carmel /Clay Zoning Ordinance or the Sign Ordinance, the provisions of this Traditions on the Monon Ordinance shall apply." 39. The Board has examined the PUD. The Board finds that the PUD does not address finish asphalt or driveways. In addition, the PUD does not specifically incorporate any provision from the Carmel /Clay Zoning Ordinance regarding asphalt or driveways. 5 40. The Director did not have authority to make a determination regarding the driveway and asphalt construction. See Burrell v. Lake County Plan Commission, 624 N.E.2d 526, 532 (Ind. Ct. App. 1994) [i]t is well settled that discretion in the formulation of standards is to be exercised when an ordinance is created, rather than when an ordinance is applied 41. Moreover, the Board is empowered to hear appeals involving only enforcement of zoning ordinances. See Carmel Zoning Ordinance 30.01; Ind. Code 36 -7 -4- 918.1. 2B is not a zoning issue. The Board does not have jurisdiction to hear a dispute regarding the driveway and asphalt construction. 42. To the extent the finish of the asphalt pavement and street constitute a construction defect, the townhome owner or the Association has an adequate remedy under contract or construction defect laws. 2C. Installation of curbs at ends of drive lanes in four locations; improvement of pavement /turf transition between asphalt and turf. 43. The Director considered the Association's complaints regarding the installation of curbs at the ends of drive lanes in four locations and determined that installation of the curbs will have a detrimental effect on the conveyance of storm water in those areas and shall not be required. However, in those four locations identified by the Association, the Director determined that Pulte was required to improve the pavement /turf transition by establishing a uniform, defined edge of pavement. 44. Both Pulte and the Association appeal this determination. 45. The PUD ordinance is the exclusive means of exercising zoning control over the Traditions on the Monon. Ind, Code 36- 7- 4- 1504(c). 46. Section 1.2 of the PUD ordinance states, "Development of the District shall be governed by (i) the provisions of this Traditions on the Monon Ordinance and its exhibits, and 6 (ii) those provisions of the Carmel /Clay Zoning Ordinance specifically referenced in this Traditions on the Monon Ordinance. In the event of a conflict between this Traditions on the Monon Ordinance and the Carmel /Clay Zoning Ordinance or the Sign Ordinance, the provisions of this Traditions on the Monon Ordinance shall apply." 47. The Board has examined the PUD. The Board finds that the PUD does not address pavement /turf construction. In addition, the PUD does not specifically incorporate any provision from the Carmel /Clay Zoning Ordinance regarding pavement /turf construction. 48. The Director did not have authority to make the determination in 2C. See Burrell v. Lake County Plan Commission, 624 N.E.2d 526, 532 (Ind. Ct. App. 1994) "[i]t is well settled that discretion in the formulation of standards is to be exercised when an ordinance is created, rather than when an ordinance is applied"). 49. Moreover, the Board is empowered to hear appeals involving only enforcement of zoning ordinances. See Carmel Zoning Ordinance 30.01; Ind. Code 36- 7- 4- 918.1. 2C is not a zoning issue. The Board does not have jurisdiction to hear a dispute regarding the driveway and turf /pavement construction. 50. Alternatively, the Board finds that the curbs were constructed pursuant to plans approved by the City of Carmel. See C2.0, C.3.1, C3.2, and C3.3 (Tabs 5 and 7 in the Pulte Submission) 3. LANDSCAPING AND GROUNDS 3A. Missing sod. 51. Neither Pulte nor the Association appeals the Director's determination; accordingly, this issue is not before the Board, and the Board need not address it. 3B. Re- Seeding. 7 52. Neither Pulte nor the Association appeals the Director's determination; accordingly, this issue is not before the Board, and the Board need not address it. 3.C. Failed sod. 53. Neither Pulte nor the Association appeals the Director's determination; accordingly, this issue is not before the Board, and the Board need not address it. 3D. North Retaining Wall. 54. The Director determined that portions of the North Retaining Wall were reconstructed to correct outward shifting. The Director, upon inspection, was unable to identify any backfill or sod issues with regard to the North Retaining Wall. The Director found that Pulte was not required to repair the alleged backfill or sod issues with regard to the North Retaining Wall. 55. Pulte has not appealed this determination. 56. The Association appeals the Determination to seek confirmation that the original wall and the repaired adjacent wall section were inspected per the design drawings and that a copy of the inspection report will be forwarded to the Association's Board of Directors. 57. The Board has examined the PUD. The PUD contains no specifications regarding the construction of the retaining wall. 58, The Board is empowered to hear appeals involving only enforcement of zoning ordinances. See Carmel Zoning Ordinance 30.01; Ind. Code 36 -7 -4- 918.1. This is not a zoning issue. The Board does not have jurisdiction to hear a dispute regarding the retaining wall. 59. Alternatively, the Board has examined the following plans: C3.9 and C3.10 (Tab 8 in Pulte Submission). 60. The Board finds that the wall was constructed to plan. 8 3E. East Retaining Wall. 61. Neither Pulte nor the Association appeals the Director's determination; accordingly, the issue is not before the Board, and the Board need not address it. 4. LANDSCAPING AUDIT 4A. Driveway Landscaping 62. Neither Pulte nor the Association appeals the Director's determination; accordingly, the issue is not properly before the Board and the Board need not address it. 4B. Foundation Landscaping 63. The Director considered the Association's complaints with regard to the replacement of dead or missing plant material and directed Pulte to replace dead or missing plant material around buildings 13, 14, 15, 16, 17, 23, 7, 11, and 20. 64. Pulte appeals this determination. 65. The Association does not appeal this determination. 66. The Board heard the testimony of Jud Scott, who stated that the issues identified in 4B have been resolved. 67. The Board has reviewed Section 8.2 of the PUD, which states, "It shall be the responsibility of the owners and their agents to insure proper maintenance of the project landscaping approved in accordance with this Traditions on the Monon Ordinance. This is to include, but is not limited to, irrigation and mulching of planting areas, replacing dead, diseased, or overgrown plantings with identical varieties... 68. The Board has considered Section 8.1 of the Declaration, which states, "The Association maintains, repairs, and replaces as a Common Expense, all Common Areas (Tab 3 in Pulte Submission). 9 69. The Board has considered Section 8.5 of the Declaration, which states, "The Association will maintain the lawn and landscaping throughout the Property (Tab 3 in Pulte Submission). 70. The Board has considered Section 10.10 of the Declaration, which states, "No person or party (other than the Association) may perform landscaping, planting, or gardening upon the Property 71. The Board finds that replacement of dead plant material is the obligation of the Association. 72. The Association contends that Pulte should be responsible for replacing dead plant material because Pulte controlled the Association until 2010. Control of the Association is immaterial because all maintenance funds come from the same source: the homeowners. Nothing under Indiana law, the PUD or the Carmel Zoning Ordinance allows the Board to pursue the Board of Directors of the Association instead of the Association itself. To the extent the current Association has complaints regarding the way the Pulte- controlled Association handled maintenance, the current Association can bring various contractual or fiduciary claims in civil court against either the former members or the maintenance company. Those claims are not zoning issues, and the Board has no jurisdiction to hear them. The Board is empowered to hear appeals involving only enforcement of zoning ordinances. See Carmel Zoning Ordinance 30.01; Ind. Code 36 -7 -4- 918.1. 4C. Common Area— Inspection Report 73.. The Director considered the Association's complaints with regard to the replacement of dead or missing plant material, and directed Pulte to replace dead or missing plant material at the NE corner for building 23 and 16, funeral home parking area (buildings 17 10 and 16), SE corner of 3 and 10 (buildings 14 and 15) Center Green (buildings 11 and 7), Building 8 (east facade, south corners), and the SE Corner by the Duke substation. 74. Both Pulte and the Association appeal this determination. 75. The Board heard the testimony of Jud Scott, who stated that the issues identified in 4C have been resolved. 76. The Board has reviewed Section 8.2 of the POD, which states, "It shall be the responsibility of the owners and their agents to insure proper maintenance of the project landscaping approved in accordance with this Traditions on the Monon Ordinance. This is to include, but is not limited to, irrigation and mulching of planting areas, replacing dead, diseased, or overgrown plantings with identical varieties... 77. The Board has considered Section 8.1 of the Declaration, which states, "The Association maintains, repairs, and replaces as a Common Expense, all Common Areas (Tab 3 in Pulte Submission). 78. The Board has considered Section 8.5 of the Declaration, which states, "The Association will maintain the lawn and landscaping throughout the Property (Tab 3 in Pulte Submission). 79. The Board has considered Section 10.10 of the Declaration, which states, "No person or party (other than the Association) may perform landscaping, planting, or gardening upon the Property 80. The Board finds that replacement of dead plant material is the obligation of the Association. 81. Much of the diseased or dying plants are due to improper maintenance and damage from vehicles striking the plants, neither of which are the responsibility or fault of Pulte, 11 82. The Association contends that Pulte should be responsible for replacing dead plant material because Pulte controlled the Association until 2010. Control of the Association is immaterial because all maintenance funds come from the same source: the homeowners. To the extent the current Association membership has complaints regarding the way the Pulte- controlled Association handled maintenance, the current Association can bring various contractual or fiduciary claims in civil court against either the former members or the maintenance company. Those claims are not zoning issues, and the Board has no jurisdiction to hear them, The Board is empowered to hear appeals involving only enforcement of zoning ordinances. See Carmel Zoning Ordinance 30.01; Ind. Code 36 -7 -4- 918.1. 4D. Tree Mulch. 83. Pulte has agreed to repair the "volcano mulch" around the red maple trees in the island. 84. To the extent there are other areas of "volcano mulch" at the Traditions on the Monon, the Board has determined that over- mulching is a maintenance issue, and is thus the Association's responsibility pursuant to the PUD and Sections 8.1, 8.5, and 10.10 of the Declaration. In addition, evidence demonstrates that recent edging of the beds had been done in a manner in which the grass and dirt removed from the perimeter of the bed have been placed on the bed contributing the "volcano mulch" problem. 4E. Mulch Bed Restoration. 85. Pulte has agreed to complete this item. 86. The Association has agreed to drop its appeal of 4E. 12 87. The Board finds that Pulte shall restore the mulch bed areas where the repair need exists as specifically identified in Director's Determination, but Pulte shall have no ongoing maintenance obligation with regard to these mulch bed areas. 5. IRRIGATION SYSTEM 5A. Planting Bed Irrigation. 88. The Director found that Pulte was obligated to install irrigation for foundation planting beds at Buildings 7, 11 and 20. 89. Pulte appeals this determination. 90. The Association appeals a portion of this determination. 91. The Board has considered the PUD. Section 8.2 of PUD contains no specifications with regard to irrigation; it merely states that irrigation is to be provided as a part of landscaping maintenance. 92. The Board has considered Mr. Hollibaugh's October 18, 2011 letter, which states, "The PUD Ordinance for the Traditions does not provide precise design specifications for an irrigation system, nor does it require a plan submittal from which an objective evaluation can be made." 93. Mr. Hollibaugh testified that there was no standard in the PUD of the Carmel Zoning Ordinances for irrigation. 94. The Board heard the testimony of Jud Scott, who testified that it is not customary in the industry to install irrigation in planting beds; irrigation is generally used to water turf. 95. The Board finds that given the fact that there are no specifications regarding irrigation in the PUD, neither the Director nor the Board has the authority to require additions or changes to the irrigation plan. 13 5B, As -Built Drawings 96. The Director found that Pulte was obligated to update the as -built drawings to include over -flow parking areas, the irrigation adjustments, and missing zones, 41,42, and 43. 97. Pulte appeals this determination. 98. Pulte agrees it will provide as -built drawings for the overflow parking area and irrigation adjustments. 99. Pulte does not agree to provide an as -built drawing for missing zones 41,42, 43, because Pulte does not agree to add these zones. 100. Given the fact that there are no specifications regarding irrigation in the PUD, neither the Board nor the Director has the authority to require Pulte to install zones 41, 42, and 43 or to submit an as -built plan showing zones 41, 42, and 43. 5C. Amended Irrigation Plan 101. The Director found that Pulte was obligated to amend the irrigation plan following a review of the updated Irrigation As -Built plan to ensure a high level of coverage in the areas noted in 5A and 5B. 102, Pulte appeals this determination. 103. The Board has considered the PUD. The PUD contains no specifications for the irrigation system, nor does it require preparation of an amended irrigation plan. 104. Given the fact that there are no specifications regarding irrigation in the PUD, the Board finds that it has no authority to require Pulte to amend its irrigation plan. 6. MISCELLANEOUS 6A. Building Defects. 14 105. The Director made no finding on the Association's complaints regarding alleged building defects, 106. The Board is empowered to hear only zoning disputes. The Board has no jurisdiction to hear complaints about building defects. See Carmel Zoning Ordinance 30.01; Ind. Code 36- 7- 4- 918.1. 6B. Building and Surface Drainage. 107. The Director made no finding on the Association's complaints regarding alleged poor construction/design of gutters and downspouts. 108. The Board is empowered to hear only zoning disputes. The Board has no jurisdiction to hear complaints about alleged building defects. See Carmel Zoning Ordinance 30.01; Ind. Code 36 -7 -4- 918.1, 6C. Verification and Enforcement of Repairs. 109. Pulte shall have 30 days from the date of these findings to complete the repairs ordered herein. At the conclusion of the 30 day period, the Director shall report to the Board regarding the status of the completion of the repairs ordered herein. 6D. Status of the Three Performance Bonds. 110. The Director made no finding on the Association's complaints regarding the status of three performance bonds, as a result, there is no appeal of an administrative determination to consider. 111. The Board is empowered to hear only zoning disputes. The Board has no jurisdiction to hear complaints about the status of performance bonds. See Carmel. Zoning Ordinance 30.01; Ind. Code 36 -7 -4- 918.1. 15 Respectfully submitted, ICE MILLER LLP Timothy E. ti chs (#16823 -02) Attorney for PulteGroup, Inc. 16 CERTIFICATE OF SERVICE The undersigned hereby certifies that a copy of the foregoing was served on the following this 1? day of April, 2012, via U.S. mail, first class postage prepaid, addressed to: Judy G. Hester BRAZIL HESTER, P.C. 303 N. Alabama St., Suite 300 Indianapolis, IN 46204 John R. Molitor, Attorney at Law 9465 Counselors Row, Suite 200 Indianapolis, IN 46240 Attorney for the Carmel Board of Zoning Appeals ICE MILLER LLP One American Square Suite 2900 Indianapolis, IN 46282 -0200 P: (317) 236 -2100 1/2802588,1 Stephen R. Buschmann THRASHER BUSCHMANN VOELKEL P.C. 151 N. Delaware St., Suite 1900 Indianapolis, IN 46204 -2505 Attorney for the Director of Community Attorney for Traditions on the Monon Services, City of Carmel, Indiana Homeowners' Association 17 Timothy E. chs