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HomeMy WebLinkAbout04-23-12 Director's Proposed FindingsIN THE CARMEL BOARD OF ZONING APPEALS IN 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 Docket No. 11110010 A Docket No. 11110011 A DECISION Upon the appeal of various paragraphs of the October 28, 2011 Determination "the Determination by the City of Carmel Director of Community Services "the Director the Board hereby makes the following decision on the separate appeals filed by on the Monon HOA "Traditions by counsel, and Pulte Group "Pulte FINDINGS In accordance with the Carmel Zoning Ordinance (the "Ordinance and Ordinance No. Z- 464-04 "the PUD the Board hereby determines that the Determination should be upheld pursuant to the following provisions: 1. Paragraph 1.A. of Determination. The Board upholds the determination that Pulte shall install approximately one hundred sixty (160) feet of curb along the sides of the eastern part of the lot, according to the standards of the Department of Engineering. There was no appeal of Paragraph 1.A. of the Determination. The curb installation has been completed. 2. Paragraph 1.B. of Determination. The Board upholds the determination that no street light is required in the new parking lot area constructed by Pulte. Traditions appealed Paragraph 1.B. of the Determination on the grounds that "street lighting shall be provided near intersections of streets and alleyways." Neither the City Ordinances nor the PUD require a street light in the new parking lot area. The parking lot is not an intersection and there are street lights shown on the Site Plan that are near the intersections of streets and alleyways. Traditions' appeal is denied. 3. Paragraph 1.C. of Determination. The Board upholds the determination that an additional overflow curb adjacent to the retaining wall shall not be required. Traditions appeals Paragraph 1.C. of the Determination on the grounds that water drains behind the retaining wall and that an independent engineering review of the design is required to assess and ensure the integrity of the retaining wall. The Director found that an additional overflow curb would not result in an improvement to the drainage design. Furthermore, the request for an independent engineering review of a design in not a proper ground for an appeal. Traditions' appeal is denied. 4. Paragraph 1.D. of Determination. The Board upholds the determination that the guard rail design must be completed, including installation of additional segments of missing rail material, approximately eight (8) boards and that an additional coating of black paint shall be applied to the railing already in existence, with additional paint required for the newer sections. Traditions appeals Paragraph 1.D. of the Determination to seek confirmation that timber is approved guard rail material. The use of timber for guard rail material is not prohibited by the City ordinances or the PUD and, therefore, is not a not proper ground for an appeal. Traditions' appeal is denied. Pulte has applied the additional coat of black paint. The addition of the eight (8) boards has not yet been completed by Pulte. 5. Paragraph 2.A. of Determination. The Board upholds the determination that the repair of 20 remaining cracks in the curbing identified and categorized by the City Engineer shall be performed by Pulte according to the standards of the Carmel Department of Engineering in order to address the longevity of the improvement and for proper conveyance of storm water. The City Engineer was consulted by the Director, provided input, and then assisted the Director in prioritizing the repairs that were needed and then requested in the Determination. The Construction Detail provided by the developer as part of the Secondary Plat provides for curbing and is an integral part of the construction of the Traditions subdivision. The Construction Detail does not contemplate the substantial cracks in the curbing and is reviewed and approved by the Department in light of many factors, including longevity and the proper conveyance of storm water. As such, the Director has properly exercised his authority in requiring Pulte to make the specified repairs, above those repairs made by Pulte prior of the Determination. 6. Paragraph 2.A. of Determination cont. Pulte appeals Paragraph 2.A. on the ground that the curbing is many years old and the responsibility for the maintenance is that of the homeowners association, and that the Director has no authority under the Carmel ordinances or the PUD to require the repair of cracks in the curbing. The City Engineer testified that such curbing would be expected to gain strength over the period of time experienced here and that such cracking is not anticipated. The curbing was installed by the developer, not the homeowners association. The resident timely requested that the cracking be repaired prior to the full transfer of the homeowners association form the developer to the residents. As provided above, the Director has properly exercised his authority in requiring Pulte to make the specified repairs in addition to those repairs made by Pulte prior of the Determination. Pulte's appeal is denied. 7. Paragraph 2.B. of Determination. The Board upholds the determination that the addition of more pavement in the area of Building 7 shall not be required because the finish asphalt has been installed throughout the project and the addition of more pavement in the area of Building 7 will likely have a negative effect on drainage in the area. The Board likewise upholds the determination that the driveway pad to each unit in Building 7 shall be reinstalled so the concrete is flush with the asphalt pavement of the drive lane, and new concrete driveways shall be poured to be flush with the existing finish asphalt. The concrete drives for Building 7 have been improperly installed with a finished grade approximately 1" above finished pavement. The edges of the drives have extensive damage as a result of the installation issue, demonstrating the consequences of the poor construction. Finally, the Board upholds the determination that Pulte shall repair the areas between the concrete drives and the top of asphalt in the area of Buildings 14 and 15 by either milling of the existing asphalt and the laying of new asphalt to the level of the drive, or through reconstruction as required above with Building 7. The offset between the concrete drive and top of asphalt, shown particularly by the growth of moss between the drives and the asphalt, indicating that moisture is being held in that area rather than being shed. It is an elementary principal of engineering that the freezing and thawing that occurs in such a situation in Indiana comprises the integrity of the drives and pavement. These conditions are not in existence in the other drive areas throughout the subdivision. Pulte has not completed the work required under Paragraph 2.B. 8. Paragraph 2.B. of Determination cont. Pulte appeals the portion of Paragraph 2.B. that requires it to reinstall the driveway pads to each unit in Building 7 flush with the asphalt pavement of the drive lane, and that new concrete driveways be installed flush with the existing finish asphalt on the ground that the Director has no authority under the Carmel ordinances or the PUD to require the reinstallation of driveway pads flush with existing asphalt. The Site Plans and Construction Plans do not show the conditions reflected on the drives and pavements at Buildings 7, 14, and 15, and the Director has the authority to enforce the Site Plans and Construction Plans in order to avoid the negative consequences now being experienced in those areas. Pulte's appeal is denied. 9. Paragraph 2.C. of Determination. The Board upholds the determination that the pavement design at the ends of drive lanes in four locations identified by Traditions is per the approved plan for the project, and that installation of curbs shall not be required as they would have a detrimental effect on drainage. The Board further upholds the determination that the pavement /turf transition in those four locations shall be improved by establishing a uniform clean, defined edge of pavement, and through careful establishment of turf, including proper soil preparation, removal of stones, placement of additional top soil as necessary, seed application, and mulching with clean straw. Pulte has not completed any of the work set forth in Paragraph 2.C. 10. Paragraph 2.C. of Determination cont. Traditions asserts that "all road edges should be curbed" because "Traditions on the Monon was designed to be a curbed community; not selective curbing or curbing at the discretion of the developer." Even though the subdivision was constructed as a curbed community, the Construction Plans and Drainage Plans demonstrate that curbing was not contemplated in all area of the community and the project was not approved with curbing in all areas of the community, particularly to address proper drainage. The Director determined that curbing at the four locations would have a detrimental effect on drainage and, therefore, was a design decision approved by the Director, not a decision at the discretion of the developer. Traditions appeal of Paragraph 2.C. is denied. 11. Paragraph 2.C. of Determination cont. Pulte asserts that the Director has no authority to make the determination because neither the PUD nor the Carmel Zoning Ordinance provides a basis for the determination that the edge between the asphalt and turf be improved by establishing a uniform clean, defined edge of pavement and the establishment of turf in those areas. The Site plan and Construction Plans for the Traditions project show straight, clean, defined edges. It is within the Director's authority to enforce the Site Plans and Constructions Plans, which in this instance also serves to provide for ease of maintenance through the life of the subdivision and proper drainage. Pulte's appeal of Paragraph 2.C. is denied. 12. Paragraph 3.A. of Determination. The Board upholds the determination that Pulte shall, for the area between Building 7 and Building 20, provide a comprehensive re- seeding effort, including proper soil preparation, seeding and straw mulch application. There was no appeal of Paragraph 3.A. of the Determination. The Board finds that Pulte has improved the area noted in Paragraph 3.A. and that Pulte shall continue its efforts in that area. 13. Paragraph 3.B. of Determination. The Board upholds the determination that Pulte shall provide a comprehensive re- seeding for the following areas: a. The area surrounding the new parking lot adjacent to Building 9; b. The common area in the southeast corner of the traffic circle between Building 14 and Building 15; c. The lawn area along the eastern side of the subdivision, especially the common area east of Building 14; d. The end area between Building 16 and Building 17; and e. The end area between Building 18 and Building 23. There was no appeal of Paragraph 3.B. of the Determination. The Board finds that Pulte has improved the areas noted in Paragraph 3.B. and that Pulte shall continue its efforts in that area. 14. Paragraph 3.C. of Determination. The Board upholds the determination that Pulte shall install replacement sod in areas where it was previously installed and failed during the dry summer months. There was no appeal of Paragraph 3.C. of the Determination. The Board finds that Pulte has improved the areas noted in Paragraph 3.C. and that Pulte shall continue its efforts in those areas. 15. Paragraph 3.D. of Determination. The Board upholds the determination that Pulte shall not be required to repair any back fill and /or sod issue with regard to the North Retaining Wall because the Director found that the portions of the North Retaining Wall were reconstructed to correct outward shifting and that "back fill and sod issues" were unidentifiable upon inspection. 16. Paragraph 3.D. of Determination cont. Traditions appealed Paragraph 3.D. of 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 be forwarded to Traditions' Board of Directors. The request for a confirmation and a copy of a report is not a proper ground for an appeal of the Determination. Traditions' appeal of Paragraph 3.D. is denied. 17. Paragraph 3.E. of Determination. The Board upholds the determination that Pulte shall repair the East Retaining Wall cap row stones, including a pre repair inspection by the City of Carmel and Pulte, and cap stones re- adhered by Pulte per the manufacturer's specifications. There was no appeal of Paragraph 3.E. of the Determination. 18. Paragraph 4.A. of Determination. The Board upholds the determination that Pulte shall replace missing and dead driveway plant material for all buildings, as well as replanting or replacement of material noted as improperly installed, all as listed on the chart contained in Paragraph 4.A. of the Director's Determination Letter. There was no appeal of Paragraph 4.A. of the Determination. The Board finds that Pulte has completed the replacement requested except for the following: 1 yew at Building 4, 1 yew at Building 5, 3 yews at Building 8, 1 yew at Building 10, and 1 yew at Building 18. 19. Paragraph 4.B. of Determination. The Board upholds the determination that Pulte shall replace missing and dead plant material in the Foundation landscaping installed with construction in 2009 or later for Buildings 23, 17, 16, 15, 14, and 13. Further, that Pulte shall replace missing and dead plan material installed with buildings constructed without irrigation systems for Buildings 7, 11, and 20. The Board finds that Pulte has not completed any of the replacements requested. 20. Paragraph 4.C. of Determination. The Board upholds the determination that Pulte shall replace missing and dead plant material in the Common Area landscaping as follows: NE CORNER (bldg. 23 and 18) 1 crab apple 4 arborvitae Funeral Home Parking area (bldg. 17 and 16) 5 arborvitae C.A. SE Corner 3 Ave and 10 Street (bldg. 14 and 15) 1 crab apple Center Green north half (bldg. 11 and 7) 2 red maple Building 8 (east facade, south corners) 1 oak SE Corner (by Duke substation) 6 arborvitae (top of wall) 2 arborvitae (foot of wall The Board finds that Pulte has replaced the 4 arborvitae in the NE Corner, the 5 arborvitae in the Funeral Home Parking area, and the 6 arborvitae in the SE Corner. 21. Paragraph 4.B and C. of Determination cont. Pulte appeals Paragraph 4.B. and C. of the Determination on the grounds that all landscaping required in the named areas under the PUD Ordinance were properly installed and survived for a period of at least one year. The Board finds from the evidence presented that the specified landscaping was not installed properly and that landscaping materials are reasonably expected to survive more than 1 year. Pulte's appeal of Paragraphs 4.B. and C. is denied. 22. Paragraph 4.B. and C of Determination cont. Pulte appeals Paragraph 4.B. and C. of the Determination on the additional grounds that Section 8.2 of the PUD Ordinance states that owners or their agents are responsibility for insuring proper maintenance of project landscaping, and that this would include replacing dead, diseased or overgrown plantings. Section 8.2 provides as follows: Maintenance It shall be the responsibility of the owners and their agents to insure proper maintenance of project landscaping approved in accordance with the 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 or a suitable substitute, and keeping the area free of refuse, debris, rank vegetation and weeds. The Board finds that the landscaping materials specified in Paragraph 4.B. and C. are those that were not only improperly installed but also improperly maintained while the developer managed the homeowners association and that Pulte is properly held responsible for the requested repairs. Pulte's appeal of Paragraph 4.B.and C. is denied. 23. Paragraph 4.B. and C of Determination cont. Pulte further argues as a basis for appeal of Paragraphs B. and C. that the Director does not have the ability or the authority to determine that Pulte and not the resident run HOA is responsible for the replacement of the landscaping, and that the responsibility to replace the identified landscaping is that of the homeowners association, not Pulte. Again, the Board finds under Section 8.2 that that the landscaping materials specified in Paragraph 4.B. and C. are those that were not only improperly installed but also improperly maintained while the developer managed the homeowner's association and that under Section 8.2 the Director has the authority to hold Pulte responsible for the requested repairs. 24. Paragraph 4.D. of Determination. The Board upholds the determination that most shade trees and ornamental trees have been over mulched, creating a problem described as "volcano mulch," which builds up a high level of mulch around the trunk, which encourages insects and moisture related maladies. Since the Director determined that the practice occurred while the HOA was operated by Pulte and has continued under the management of the residents in Traditions, the cost of the repair of 110 trees shall be split equally between Traditions and Pulte, amounting to $1100 each. The Board finds that the work specified in Paragraph 4.D. is not complete. 25. Paragraph 4.D. of Determination cont. Traditions appeals Paragraph 4.D. on the ground that the volcano mulching did not continue when the HOA was turned over to be managed by the residents. It is clear from the recent photographs of the property that mulch and /or dirt is still continuing to be piled on top of the existing mulch and dirt about the trunk of the trees. Traditions appeal of Paragraph 4.D. of the Determination is denied. 26. Paragraph 4.D. of Determination cont. Pulte appeals Paragraph 4.D. on the ground that nowhere in the PUD Ordinance or the Carmel Zoning Ordinance do any standards exist with respect to the placement of mulch around shade trees. Pulte further alleges that the Director does not have the authority to make any determination, let alone one that splits the cost, because he cannot make rules or regulations. The Board finds that the Landscape Details and Note on the Preliminary Development Plan for the property submitted by the developer provides that there is to be only 3 inches of shredded bark applied to the ornamental, deciduous, and evergreen trees installed on the property and that such mulch is be applied evenly, not in a volcano fashion, thereby providing the Director with the authority for Paragraph 4.D. of the Determination. Pulte's appeal of Paragraph 4.D. is denied. 27. Paragraph 4.E. of Determination. The Board upholds the determination that Pulte shall backfill and restore all mulch bed areas where a repair need exists, including correction of all remnants of pipe removal which were left unfinished, and the correction of erosion channels, with a level of detail indicating care for a quality outcome. There was no appeal of Paragraph 4.E. of the Determination, and the Board finds that Pulte has not yet completed the work specified in Paragraph 4.E. 28. Paragraph S.A. of Determination. The Board upholds the determination that Pulte shall install an irrigation system for the foundation plantings for Building 7, Building 11, and Building 20. The installed irrigation system provides coverage for the vast majority of the property. However, even though irrigation sleeves are already present for Buildings 7, 11, and 20, the irrigation has not been installed there and there are no water spigots located on Buildings 7, 11, and 20, providing the homeowners with no ability to use a garden hose in areas not covered by the irrigation system or to maintain the landscaping. 29. Paragraph S.B. of Determination. The Board upholds the determination that Pulte shall update the Irrigation As -Built drawing to include the over -flow parking areas, the irrigation adjustments, and missing zones. 30. Paragraph S.C. of Determination. The Director had requested an amendment of the irrigation plan in Paragraph S.C. of the Determination, but the Director committed to the Board in the public meeting on this matter that no amendment will be needed or required with the condition that Pulte complies with the installation required in Paragraph 5 A and with the updated As -Built drawing listed in Paragraph S.B. The Board upholds this updated Determination with regard to Paragraph 5C. 31. Paragraph 5. A -C —cont. Pulte appeals Paragraphs 5.A -C. of the Determination, asserting that the Director has no authority to make the determination because neither the PUD nor the Carmel Zoning Ordinance set any standards or requirements with regard to the irrigation system, and neither provides a basis for the determination that the irrigation system installed per the PUD is insufficient. The requirements must be sufficiently definite to be understood with reasonable certainty or they are not enforceable. See Hendricks County Board of Commissioners v. Rieth Riley Construction Company, 868 N.E.2d 844 (Ind. Ct. App. 2007), citing T.W. Thom Const., Inc. V. City of Jeffersonville, 721 N.E.2d 319, 327 (Ind. Ct. App. 1999). 32. Paragraph 5. A -C —cont. The PUD specifically provides in Section 8.2 Maintenance It shall be the responsibility of the owners and their agents to insure proper maintenance of project landscaping approved in accordance with the 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 or a suitable substitute, and keeping the area free of refuse, debris, rank vegetation and weeds. To insure proper maintenance of project landscaping and to avoid deal and diseased plants, the irrigation specified in Section 8.2 must actually reach the project landscaping. The developer installed irrigation sleeves for Buildings 7, 11, and 20, but did not install the irrigation and specifically decided not to provide spigots on those Buildings, thereby depriving the homeowners of any other way to irrigate the plantings than the irrigation system being installed in those sleeves. The Board finds from the developer installing the sleeves at Buildings 7, 11, 20 and from the Irrigation Plan provided to the Director that the developer understood with reasonable certainty the requirements of the irrigation provisions in Section 8.2. As such, Section 8.2 will be enforced by upholding Paragraphs 5.A -C. of the Determination. Pulte's appeal is denied. 33. Paragraph 5. A -C —cont. Traditions appeals part of Paragraph S.A. -C. of the Determination, asserting that the Director failed to reference the October 14, 2010 three -party agreement between Traditions, Pulte, and the City in support of the Director's decision, that an that an Irrigation Performance Bond was put in place for the irrigation system to be complete by July 1, 2011, that this has not occurred, and the bond should be drawn upon to rectify all issues with the Irrigation System in Paragraph 5.A -C. While the Irrigation Performance Bond may be drawn upon to address these issues, it is not a ground on which to appeal the Determination and the findings in Paragraphs S.A. -C. Traditions appeal is denied. 34. The Director's Determination of October 18, 2011 was written and finalized after almost over a year of information- gathering, meetings, and review /analysis of the Traditions on the Monon Defects List dated August 29, 2011. The review and analysis included consultation with DOCS staff, City Deptartment of Engineering personnel, City Forester Deptartment personnel, and outside experts. Meeting also included representatives of the Traditions on the Monon Homeowners Association, as well as representative from Pulte. The resulting Determination is fair and balanced. Filed in the Office of the Carmel Board of Zoning Appeals this day of April 2012. John R. Molitor Attorney for the Board ATTEST: Connie S. Tingley Secretary