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HomeMy WebLinkAboutMinutes BZA 03-26-12City of Carmel MINUTES Carmel Board of Zoning Appeals Regular Meeting March 26, 2012 6:00 p.m. Council Chambers, Carmel City Hall Present: James Hawkins, President Kent Broach Alan Potasnik Ephraim Wilfong Ramona Hancock, Recording Secretary, pro tem Absent: Earlene Plavchak Staff members in attendance: Legal Counsel: John Molitor Alexia Donahue Wold, Planning Administrator Daren Mindham, Urban Forester Mike Hollibaugh, Director, Department of Community Services Previous Minutes: On a motion made by Ephraim Wilfong and seconded by Kent Broach: The Minutes for the meeting dated February 27, 2012 were approved as circulated. MOTION CARRIED UNANIMOUSLY Department Report: Alexia Donahue Wold Items 7 -8, Docket Nos. 1112 -1- UV and 11120011V, North Augusta, Lot 4 Retail Use, tabled to April 23, 2012 meeting Legal Report: John Molitor Docket Nos. 11110010 A and 11110011 A Traditions on the Monon continued from last month o Had met with legal counsel for all parties No problem with Ms. Plavchak being absent as long as she is provided with a video of the meeting and any written submissions to be prepared for continuation to April 23 meeting Asked to give remainder of Legal Report at end of meeting regarding pending litigation Public Hearing: WWW.CARMEL.IN.GOV Page 1 of 34 (317) 571 -2417 Carmel Board of Zoning Appeals March 26, 2012 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 Petitioner: Jamie Browning, Meridian 131 Associates, LLC Forty -acre development at corner of Meridian and Main o Site map shown One variance provides 140 parking spaces versus 150 spaces or one per 200 square feet of floor area o This section of site is 3.1 acres o INDOT proposing right -of -way taking of approximately .7 acres o US 31 Overlay District requires 15,000 floor plate, restricting area available for parking o Changes made in site design, adding ten spaces Request from Staff for placement of buildings o 15,000 square feet floor plate on corner o 13,000 square feet for second building o Variance from US 31 Overlay for 15,000 and 13,000 square feet building 13,000 square feet building allows more parking spaces Final variance for one -story occupiable building with minimum height of 26 feet 2 inches o Meeting height requirement o Asking for only one occupiable floor Negotiating for doctor's office and surgery center Previous site plan showed south building more adjacent to US 31 o Staff asked for cornerstone building to be more inviting Will be on corner of Main Street at roundabout Building moved to transverse corner of roundabout Site plan and renderings shown Would need ADLS approval Public Hearing closed Department Report: Alexia Donahue Wold Petitioner worked with Staff on site plan Happier with building fronting corner o Will address streetscape along US 31 o Massing and proportions give feel of two -story building o Still working on connectivity of sidewalks to Main Street and potential location of dumpster o Those will be handled at ADLS Page 2 of 34 Carmel Board of Zoning Appeals March 26, 2012 Department recommended positive consideration of all three variances with Commitments for permitted uses not to include gas stations, pharmacies or fast food with drive through Discussion: Petitioner amiable to Restrictions /Commitments o Those are main restrictions for one -story building Petitioner willing to work with Department on connectivity and dumpster location before the ADLS Plan Commission committee meeting o Willing to install sidewalk for bike access and walkability Motion: On a motion made by James Hawkins and seconded by Kent Broach: Docket Nos. 11120012 V, 11120013 V and 12020007 V, Meridian Main I, be approved with Commitment there will be no gas stations, pharmacies, or fast food with drive through. MOTION CARRIED UNANIMOUSLY 4. (V) D Wilkinson's Addt'n, lots 17 -18 part 440 1st Ave NE Carport. The applicant seeks the following development standards variance approval for a carport: Docket No. 12020001 V ZO Chptr. 23D.03.C.3 setback The site is located at 440 1st Ave NE. It is zoned R -4 /Residence, within the Old Town Overlay Character Subarea. Filed by Carmel Dept. of Community Services (DOCS), for Richard Habegger of Melray Properties, LLC. Present for Petitioner: Kevin Buchheit, Planner with Krieg DeVault, Mr. Mrs. Habegger, Melray Properties, and Paul Reis, Krieg DeVault Located at southwest corner of 1" Avenue NE and 5` Street NE Mr. Habegger began renovation and improving property last Fall o Submitted applications for permits; reviewed by Planning and Building Departments Permits were approved and issued October 24, 2011 o Stop work order issued on carport on front of building Staff took lead for variance application for front setback Staff submitted Findings of Fact Site plan and rendering shown Carport is open -air design with no full wall enclosures Petitioner has talked with neighbors to work out agreement Copies of letters of support were in the packet Location map of letters of support shown on all four sides Staff had number of points Carport is in keeping with design of house Will never be enclosed Adds to character of neighborhood Unique design adds to eclectic design of neighborhood Agree with Findings of Fact put forth by Staff Remonstrance: Kevin Lavelle, 621 1" Avenue NE Page 3 of 34 Carmel Board of Zoning Appeals March 26, 2012 Unsightly and extends from building to within few feet of sidewalk o Nearly 30 feet long o Completely out of character for Old Town o Negatively impact home values in neighborhood Found three apartment dwellings in Old Town north of Main Street o Carports behind buildings o Carports parallel to front of building o Carports set back more than 30 feet from sidewalk Built their home in 2007 o Prior to construction, obtained copy of Zoning Ordinance to be in compliance o City firm in making them adhere to all Ordinances o This carport violates Zoning Ordinance No addition, except open air porches may be added to front of building Except where building is set back more than 30 feet from setback line of nearest neighbors Parking is not allowed in front yard of any property Except in driveway leading to garage Pictures showing this driveway does not lead to garage Ample parking on north side of building facing 5 Street NE o 60 feet wide and accommodates six cars o Used by previous building tenants o Additional space on west side of building; approximately 20 by 100 feet would accommodate at least five cars Bill Greenwood, 311 5 Street NE A neighbor 3 lots west of his house applied for variance o No one spoke out against it and it was approved o Picture shown o None of the neighbors are happy o It is out of character for neighborhood Streets are not alleys and buildings should not be built that close to the street Lived in their house 34 years o Know why they came and stayed o Raised children and grandchildren Despite improvements to building, oppose carport variance o Unbecoming to neighborhood Not good relationship to override wishes of neighbors Setbacks and parking space requirements established for a reason o Parking space requirements cut in half with Overlay Now there will be six units instead of previous three or four o Encroachment to single family homes Property values have slashed o Hope Carmel does not create more problems Rosalie Lavelle, 621 1" Avenue NE Page 4of34 Carmel Board of Zoning Appeals March 26, 2012 Had signed petition from neighborhood with 42 -44 names against variance Rebuttal: Kevin Buchheit Proximity to street caused variance request Design intended as cover for two automobiles in driveway Also provide additional length for cover for students waiting for school bus Believe design is attractive addition to architecture of neighborhood Old Town is unique area with different designs present Paul Reis Please note people most affected are in support of variance Open air structure o Definition of building can be problematic o Created difficulty for developer o There are no walls or roof making an enclosed structure o Structure has open roof and columns o Impact of carport looking up and down street is minimal Pictures available o Architecturally similar with building Did not feel any evidence of negative impact to property values Carport is back from sidewalk o No impact on public welfare or safety of neighbors Department Report: Alexia Donahue Wold Unfortunate in this position for variance In general it could look pleasing o Matches architectural character of building Garage has been rehabbed into apartment units Carport visually better than parking pad in front of building It is out of character with Old Town It encroaches significantly into front yard setback Department Recommendation: After all comments and concerns have been addressed, the Dept. of Community Services recommends that the BZA vote on Docket No. 12020001 V this evening Discussion: How was length of carport determined? o Twenty -four feet would allow enough space under roof to protect cars o Additional six feet would allow children to be out of weather waiting for school bus o Eighteen feet would cover average car Oversized vehicles may be longer Looks like building break or fence at end of carport so cars cannot pull forward o Fence provides front courtyard for adjacent unit o Shields headlights from carport Page 5 of 34 Carmel Board of Zoning Appeals March 26, 2012 o Safety feature to keep vehicles from accidentally pulling forward into building Prior to renovation car did pull into structure Did not appear to be sufficient as opposed to metal or concrete pylons Petitioner willing to decrease length to 18 feet to cover vehicles Staff did not have positive or negative recommendation since they had approved it originally o It was oversight from SDR Driveway was pre- existing Carport in process of being constructed Approved as oversight by Department o Construction was stopped Structure needs to conform with front yard setbacks Richard Habegger (property owner): Structure does not lend itself to being enclosed in future o Has foundations for posts only o Would not be in code if sides added o Currently no electricity installed Garden look to cover cars Driveways on 5` Street along north side of property o Holds six to seven automobiles Carport would expand over two -car width of driveway, approximately twenty feet Discussion continued: If denied, cannot build carport, but cars can still park there Building materials are timbers made of treated lumber o Hardy Plank siding will be used for trim around bottom and posts o Painted to match building o Ceiling joists made of treated lumber with treated plywood deck with thin white TPO /rubber membrane on top to keep weather off Conversion to garage would not be possible because of garage setbacks o Petitioner willing to commit to not being enclosed Motion: On a motion made by James Hawkins and seconded by Kent Broach: Docket No. 12020001 V, D Wilkinson's Addition, lots 17 -18 part 4401 Avenue NE Carport be approved with Stipulation it cannot be converted to a garage. MOTION DENIED UNANIMOUSLY Following dockets heard together: 5. (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). 6. (A) Docket No. 11110011 A: Traditions on the Monon Pulte Appeal. Page 6 of 34 Carmel Board of Zoning Appeals March 26, 2012 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: Last month covered first half of these two petitions o Banked parking o Streets and curbs o Landscaping and grounds Tonight's topics: o Landscape audit o Irrigation system o Miscellaneous /catch all Petitioners wish to raise Under temporary rule: o Petitioner in Pulte Appeal to make presentation first with respect to landscape audit and irrigation system o Petitioner in HOA Appeal to make presentation first with respect to miscellaneous items o Respondent/Director of Department of Community Services has option to make five minute presentation after Petitioners have gone first and second on each topic o Fifteen minute time limit for presenting Petitioner, fifteen minutes for responding Petitioner and five minutes for Director to respond o At end of three topics, additional opportunity for any public testimony in support of or opposition of either of the Appeals of not more than fifteen minutes James Hawkins: Confirmed all parties agreeable to Ms. Plavchak listening to this meeting and participating at the final hearing Tim Ochs: Referred to his memorandum submitted prior to first hearing o Put forth couple of important arguments "It is well settled that discretion in the formulation of standards is to be exercised when an ordinance is created rather than when the ordinance is applied." from Indiana Appellate Court The Carmel City Council has authority to adopt standards o It did so when it adopted the PUD for the Traditions on the Monon Mr. Hollibaugh as the Director of the Department and Zoning Administrator for Carmel has obligation and duty to apply that PUD Page 7 of 34 Carmel Board of Zoning Appeals March 26, 2012 o He does not have the authority to create his own standards o To the extent he has done that, they continued to object o If Mr. Hollibaugh attempts to apply an ordinance that is not a Zoning Ordinance, this Board does not have authority to enforce In many instances last month, they indicated a number of items had been completed o Not an admission of agreeing with Department's determination, but an attempt to resolve issues from various discussions and meetings as best course of action from a business perspective Landscape audit: Jud Scott, owner Jud Scott Consulting Arborist and Vine Branch Jud Scott Consulting Arborist, regional consulting firm that deals with landscaping and tree care; registered consulting arborist; handles dispute resolution of trees. Hired for this project to look at Point #4 of Zoning and Quality Construction letter dated October 18, 2011 o Found most of the inadequacies had been addressed Except mulch needs to be installed as per original landscape specification with three inches of shredded back and six inch saucer (point D) Check accepted original landscape plan Few red maples in center island need soil excavated Mounded root balls inadequacy at planting time Contributes to "volcano" mulch; mounding mulch and soil Soil needs to be removed carefully so as not to cut roots Norway spruces on south and east corner mulch needs to be pulled away Looks like it has been dumped Needs to be pulled away and saucer ring installed Best time is Spring when any additional mulch is added at proper specifications Bed restoration (point E) Mulch has washed away and exposed areas Needs to be tidied up and possibly more stone added Future specifications should say just a top dressing of mulch; not four more inches Tim Ochs: Follow up to Mr. Scott's testimony o When Pulte received his letter (dated March 23, 2012), bullet point regarding red maples stuck out Installation was Pulte's responsibility and they will correct the problem Felt it was part of PUD Section 8.1 for planting standards Landscaping package was part of approval This package used for Mr. Hollibaugh' s audit Once all landscape package was installed, Pulte's obligation with the Zoning Ordinance was met Requirement in PUD Section 8.2 states "It shall be the responsibility of the owners and their agents to ensure proper maintenance of project Page 8 of 34 Carmel Board of Zoning Appeals March 26, 2012 landscaping approved in accordance with this Traditions on the Monon Ordinance." Contract for maintenance from beginning was HOA responsibility o Date of control of HOA is irrelevant Contracting party and owner is the HOA Control is who appoints the board members When Pulte was in control of the board (appointed board members), source of funding for HOA expenditures was still the same the homeowners Pulte could have taken steps to fix the problems, the money comes from the same source The obligation to maintain was the HOA o The Declaration of Record supports that o Section 8.1 states "The Association's maintenance obligations will be discharged when and how the Board deems appropriate. The Association maintains, repairs and replaces as a common expense all common areas and any component of a townhome or lot delegated to the Association by this Declaration as an area of common responsibility." o Section 8.5 states "The Association shall maintain the lawn and landscaping throughout the property, including the lots as set forth in the Zoning Commitments. However, each owner must keep the lawn located on its lot clean and free of debris and free from animal waste." o There is no violation of the Zoning Ordinance, unless it is against the HOA for not fixing it. o Not a Zoning violation if current Board feels previous Board or Pulte was derelict. Mr. Potasnik: Once Pulte completed installation and received occupancy permits that complied with PUD and Ordinance, even though Pulte controlled the HOA, it was still an HOA responsibility. o Sounds like an issue of Covenants at this point Mr. Ochs: If Mr. Hollibaugh had issued the letter four or five years ago when Pulte was still in control of the Board, it was still enforcement action against the HOA o The HOA can allege a violation, but not appropriate issue before this Board They did not believe any had occurred o 10.10 of Declaration says "No person or party other than the Association may perform landscaping, planting or gardening anywhere upon the property or any lot." Mr. Ochs continued: Pulte has fixed Items A, B and C o Believed they have complied with Ordinance Items D and E o Item D involves the volcano mulch Page 9 of 34 Carmel Board of Zoning Appeals March 26, 2012 This occurs because every Spring Mainscape would re -mulch Mainscape' s contract with the HOA May not have been done properly Over time mulch builds up into volcano issue Nothing in PUD or Zoning Ordinance gives Mr. Hollibaugh authority to say there is too much mulch on a tree His determination is to split the cost It is either a Zoning Ordinance violation or it is not He does not have authority o Item E Do not feel Mr. Hollibaugh has the authority They fixed it anyway; does not mean they agree with it Feel they have complied with A, B, C and E of Section 4 Object to D; do not feel Mr. Hollibaugh can impose his determination Mr. Buschmann: Developer had complete control until May 2010 Owners prepared August 20, 2010 Transition Issues Report o First chance they had to get into the issues Improper plantings resulted in dead plants Plants provided in Development Plan were not what was planted within the development Lack of irrigation (next topic) killed lots of plants To obtain Certificate of Occupancy, Pulte posted bond of $32,290 to comply with Landscaping Audit o Preference is for Pulte to forfeit bond and let HOA complete work Vicky Mandras: Resident; degreed chemical engineer with twenty years of experience; capable of reading architectural drawings and landscape plans; Master Gardening course through Purdue; involved with landscaping since becoming Board member Timeline of sequence of events o Board of Directors established May 13, 2010 o May 26 HOA met with Mainscape, landscape company contracted by Pulte until December 31, 2010 o June 1 to July 1 evaluated landscaping based on landscape plan and observations o July 2 requested to meet with Urban Forestry to do landscape inspection Based on differences found in drawings and actual development o July 20 Urban Forestry issued letter to Pulte Homes indicating their findings Lot of improper plantings Incorrect mulching Incorrect planting of trees; one of their biggest concerns o August 20 worked together as HOA to prepare transition issues report which included details and pictures of findings and observations o September 1 met with Mayor Brainard, Mike Hollibaugh and John Molitor to discuss report findings, including landscaping issues o September 15 City issued letter to Pulte Homes asking them to correct the landscaping; missing or dead plants, inconsistent mulching and installation from PUD requirements Page 10 of 34 Carmel Board of Zoning Appeals March 26, 2012 Plan by Pulte to correct landscaping inconsistencies by October 1, 2010 o October 4 Centex and Pulte sent letter of response to City stating most of the inconsistencies were the responsibility of HOA due to maintenance required of plantings HOA contention that it was originally installed incorrectly; therefore still responsibility of builder o October 14 met again with City and Pulte to arrange proper planting inspection with Urban Forestry to conform to PUD and Urban Forestry's recommendations Also talked about making driveway plantings more consistent City committed to work with HOA and Pulte to develop mutual plan to rectify issues o October 27 met with City and Pulte Determined Mainscape would remediate all improper plantings Pulte would be responsible for completion Upon completion Urban Forestry would re- inspect Still to meet to come up with agreeable plan for driveway plantings o November 17 met with City and Pulte Landscaping performance bond was established to rectify problems Primarily volcano mulching discussed by Urban Forestry Big issue in appeal letter Remediation was to start immediately; completed by July 1, 2011 o November 19 another landscape walk through with Urban Forestry and Pulte Homes Urban Forestry wanted to confirm plantings were done according to 01.4 of the officially approved Landscape Plan Mr. Mindham, Urban Forester, provided details for correct planting o Proper tree mulching guidelines Number of damaged trees in common area Landscaping company had placed stakes in ground for support o Never removed o Grew into trees o Severely damaged number of trees o Mutually agreed to replace one severely damaged tree o December 2010 Mainscape planted trees incorrectly She contacted Urban Forestry Urban Forestry demonstrated correct procedures to Mainscape for tree planting and mulching Mainscape' s contract ended December 31 Because of problems, HOA did not want Mainscape to finish Mainscape placed unplanted trees in large bank of mulch o Another landscape review took place o April 14, 2011 walk -thru with HOA, Mayor Brainard, and Tony Barbee of Pulte to look at issues from transition report o July 5 landscaping recommendation that was not completed per the plan HOA considered it a default on performance bond o October 18 City issued Letter of Determination Keith Schornhorst, US Lawns; 16 years landscaping experience around Indianapolis Page 11 of 34 Carmel Board of Zoning Appeals March 26, 2012 Photos shown of incorrect plantings throughout property o Shrubs planted above grade with burlap still attached o Unhealthy plants o Large plants in front stop irrigation from reaching smaller plants in back o Dead plants in front from lack of irrigation in front of buildings o Combination of improper planting and irrigation (irrigation covered later) o Agreed with volcano mulch assessment Not just in park area; throughout whole community o From installation, ropes tied around trees and burlap remained Does not meet diagram on landscape plan showing correct planting details Planted at ground level, remove wire basket and ropes, pull burlap back Photo shown of correctly planted tree with no volcano mulching o Stakes and hoses never removed from trees, making them unsalvageable Landscape Inspection provided by Daren Mindham detailed problems throughout community o Need proper walk -thru to determine if plan completed properly HOA requesting bonds be released to correct problems o Timeline showed length of process Landscape audit included in packet listing corrections needed Things were not planted correctly, causing a lot of the issues Mr. Ochs questioned Mr. Schornhorst: Number of years with US Lawns and formal training or education Mr. Schornhorst: In the industry for 16 years Attended Purdue University; not in horticulture Learned from experience in the field over past 16 years Not a certified arborist Mr. Ochs: Can you discern between lack of maintenance and improper installation? Do you know who was responsible for maintenance? Mr. Schornhorst: There is a discernment o Each is a case -by -case scenario They took over in April 2011 o His understanding was the Pulte controlled Board contracted Mainscape Ms. Hester: It appears both sides and the Director agree the trees and mulching are not right o Problem is how to fix The Director agrees with Mr. Scott's letter Mike Hollibaugh, Director, and Daren Mindham, Urban Forester, available for questions Director's letter Section 4, B and C covers situation with trees o No one appealed Section 4, A which dealt with dead and missing trees for driveways o Pulte appealed B which is foundation landscaping and C the common area landscaping In the beginning the developer/Pulte was the owner Page 12 of 34 Carmel Board of Zoning Appeals March 26, 2012 They called Daren Mindham for inspections If trees are improperly installed and not correct quality, they cannot say "Well, I installed them, it's your problem." Landscape Plan submitted by developer states what will be installed Cannot be installed improperly Cannot be poor quality landscaping Landscaping details states "landscape architect (who is employed by developer) will remove rejected plants and materials promptly from project site." It is clear there are dead and missing trees o Mr. Mindham has inspected numerous times over past two years Never all correct All agree it is not proper There is a Landscape Plan approved by the Department and Director There are standard details stating anything improper, dead or missing, is going to be removed by developer o Request B and C asking Pulte to replace dead and missing trees be upheld for the Director He does have authority It is on all the landscaping plans o Regarding mulching Agree with Mr. Scott's letter Is Pulte agreeing they will correct the matter? Mr. Ochs: As reflected in Mr. Scott's letter, it has all been done Their position is A, B and C had been done o They are arguing responsibility for D and E Ms. Hester: From their position B and C had not been corrected o They agree it should be three inches as per landscape plan Pulte did not appeal E o They were going to correct it o HOA is appealing E Mr. Ochs questioned Mr. Mindham: Was volcano mulch installed that way or did it happen as mulch was installed each Spring? Problems other than red maples occurred during the maintenance of landscape beds and trees? When was the last time he inspected trees at the Traditions on the Monon and was it before or after banked parking area had been installed? Mr. Mindham: Islands with maples specifically installed with extra mulch (in Mr. Scott's letter and Pulte agreed to fix) o Additional mulch was put on top each year after it was improperly installed Number of pictures around the project also show volcano mulch Page 13 of 34 Carmel Board of Zoning Appeals March 26, 2012 o A lot had been fixed, but not all locations Last time was October 10, 2011, after banked parking installed Ms. Mandres: Through December 2010 Mainscape was landscape maintenance company Mr. Ochs objected: He ask his questions on cross They had their opportunity to present their material o Now they are trying to present additional material outside established timelines Mr. Molitor: Recommended Board sustain the objection HOA can cross examine any witness o They do not have ability to rebut what has been presented by other two parties Ms. Hester follow up to Mr. Mindham: Do you agree red maples definitely had issues with the volcano mulch which Pulte has agreed to address? Are you aware of other volcano mulch throughout the rest of the project? Mr. Mindham: Yes Hit and miss throughout the neighborhood o Especially along 136` Street o Also other areas with volcano mulch Mr. Hawkins question to Mr. Buschmann: Which items are still a concern out of the Landscape Audit? Mr. Buschmann: Very little of the work has actually been done o Basic problem after a couple of years Mr. Potasnik to Mr. Mindham: Were you at this development prior to City signing off on occupancy? Is it part of your job to make a determination if the landscaping has been put in per the PUD Ordinance? Mr. Mindham: He had been to the project a number of times over the past few years o Not sure when the Certificate of Occupancies were issued Mr. Potasnik: Did you make an inspection to determine if the landscaping and trees were installed according to City Ordinances Mr. Mindham: After inspections, he sent review comments email to Pulte reviewing what was lacking o Something has been lacking in each report, according to the PUD Ordinance Page 14 of 34 Carmel Board of Zoning Appeals March 26, 2012 Mr. Buschmann questioned Mr. Mindham: Was all landscaping put in at exactly the same time? Mr. Mindham: No, it has been put in over the course of many years Mr. Buschmann: Did you make an inspection every time a different segment of landscaping or trees was put in? Mr. Mindham: He had inspected, depending on the location, when asked, but there was always a running list of discrepancies Mr. Buschmann: Did you issue a letter requesting the Certificate of Occupancy for Building 13 be withheld until landscaping could be corrected? Mr. Mindham: No, he did not believe so Mr. Buschmann: In regard to trees with volcano mulch as shown in the photos, is it easy to get the huge piles by putting on a little at a time? Mr. Mindham: Usually volcano mulch is grown over time, but it is not uncommon to be overly mulched the first time. Mr. Buschmann: You believe many were overly mulched the first time? Mr. Mindham: Yes Mr. Ochs to Mr. Mindham: How do you know after all these years (2005) what is the result of improper maintenance over time and what is the result of improper installation? Mr. Mindham: The red maples on the island were always a topic of conversation. o 136` Street had originally been oaks incorrectly installed; all but a couple died Replanted with red maples; all volcano mulched Mr. Ochs: Other than those two locations, do you know for certain whether it is maintenance or something else? Mr. Mindham: He would be less inclined to know specifically Mr. Hawkins to Mr. Scott: From the slides shown by Mr. Schornhorst, could you tell if plantings were installed correctly? Mr. Scott: It was hard to say o A couple shrubs were out of place, but it depends on why they were out of place Were they planted improperly or did someone back into them? Noticed at ends of driveways, numerous places cars or snow plows had driven Page 15 of 34 Carmel Board of Zoning Appeals March 26, 2012 People cut the driveways and run over the yews When he was there last summer, he suggested something other than yews should be there so they could be run over and grow back He did not do plant -to -plant audit, so it would be hard from a couple pictures Mr. Hawkins: From the $32,000 bond, how much has Pulte spent correcting the problems in A, B, C and E? Mr. Ochs: When Pulte posted the bond, they had a complete building with contracts with customers o Carmel would not issue the Certificate of Occupancy and Pulte could not fulfill the contracts o They felt they had no choice but to post the bonds in order to fulfill their contracts Matt Lohmeyer, Director Land Development for Pulte Homes in Indiana From a quick tally, they are at about $29,000 to date on plantings Amount for performance bond was based on Mr. Mindham' s original assessment of what may or may not have been installed up to that point Since this was an ongoing project, as buildings were completed, landscaping specific to those building was installed o Common areas surrounding those buildings were completed some point after Mr. Wilfong: Thought he had heard conflicting statements with what the three parties are agreeing o HOA is taking the side of the Department's letter and feel Items A, B, C, D and E should all be corrected by Pulte Do you feel Pulte has completed any of those items or a sub -item within the item? Mr. Buschmann: Did not feel any of them had been fully completed They did not appeal A, B or C; appealed D and E Mr. Wilfong: Which items has Pulte appealed and which items do you feel you have completed? Mr. Ochs: They felt they had done A and did not appeal it They did not appeal E and feel as though that had been completed Appealed B, C, and D o They believe B and C have now been completed They object to E, with the exception of the red maples, because those are maintenance items and not Pulte's responsibility Mr. Wilfong: Out of the Department letter the only thing you think should be fixed is the red maples? Mr. Ochs: Correct Mr. Wilfong: Ask the Department what items or sub items had been fixed? Ms. Hester: Item A was not appealed; they do not have a position on everything in A being corrected Items B and C were appealed only by Pulte Page 16 of 34 Carmel Board of Zoning Appeals March 26, 2012 They would need to make another re- inspection on Item D, which both parties appealed o Everyone agrees on the red maples o There are a few more that need to be addressed Item E ask Pulte to make corrections and they did not appeal; they were going to address it o HOA appealed even though they ask only Pulte to make the changes Mike Hollibaugh: Under Item E, as of last week there were still a number of areas where no effort had been done to restore mulch areas Mr. Hawkins: What was the purpose in HOA appealing Item E? Ms. Mandras: Could not speak to Item E Mr. Ochs: They had agreed to repair a specific item in E It has not been done because they are waiting on completion of this hearing Mr. Hawkins: So Pulte agrees to Item E and agree it has not been done? Mr. Ochs: Specifically within Item E and that is why they did not appeal They will go out and fix it once, but it will be an ongoing maintenance item Mr. Ochs: Will Mr. Hollibaugh or HOA go back out to the sight for another audit before the April meeting? Mr. Hawkins: Agreed that audit should be updated and dates given when Pulte would have items completed Ms. Hester: They would coordinate the visit with all parties Mr. Ochs: With respect to those items they both agree to fix and have not; they can do that Not sure that will cover everything that would be audited Could schedule date for audit and things noted that have not been done o Pulte could agree to do them The red maples will be taken care of as noted in Mr. Scott's letter During walk -thru Pulte can point out what they will fix or not fix Mr. Buschmann: Would like a date certain when items will be fixed When items will be fixed has been an ongoing problem Mr. Hawkins: Would like a survey indicating what has been completed, what is intended to be completed and provide date of completion He felt it should be a small group of experts and attorneys Mr. Molitor: Item E still seems to be an outstanding issue or does HOA want to drop that appeal? Page 17 of 34 Carmel Board of Zoning Appeals March 26, 2012 Mr. Buschmann: Basis of appeal they filed for Item E was a symptom of incorrect drainage of gutters to be covered in last issue It can be dropped here What Mr. Ochs stated would still stand; it will be fixed Mr. Hawkins: Noted dismissing Item E Irrigation: Mr. Broach: If items could be covered as A, B and C, it would be easier for the Board to follow Mr. Ochs: Stated Mr. Hollibaugh gets to enforce the rules, he does not get to make them From Mr. Hollibaugh' s October letter: "The PUD Ordinance for 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." o If you cannot make an objective evaluation, then you are making it up as you go. o You may think the rules Mr. Hollibaugh came up are great and reasonable and should be adopted as Carmel's Ordinance dealing with irrigation system installations; that is not for him to say. He can say the requirement is "X" and you have to do "X" o The landscaping plan we just went through is very detailed Giving caliper of trees, heights, species, number planted Either it is done or it is not o There are no requirements or specifications for an irrigation system Section 8, Landscaping, of PUD has planting standards, building base landscaping, perimeter planting, bufferyard requirements, interior plantings and tree conservation Those are five of the six sections of the PUD Section 8.2, Maintenance, has only reference to an irrigation system: "It shall be the responsibility of the owners and their agents to ensure 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 and overgrown plantings." Mr. Hollibaugh does not have the ability to make up the rules as they go. This is a maintenance obligation; same rules apply o Mr. Scott will testify as to what he believes is typical or standard for beds. The areas Mr. Hollibaugh noted in Section A "Irrigation system shall be installed by Pulte for foundation planting bed Building 7, 11, and 20" These are irrigations just for beds that are mulched, not for lawns Mr. Scott: Irrigation systems are generally installed for irrigating turf o As an arborist, he hates it when people have sprinkler systems hitting plants Page 18 of 34 Carmel Board of Zoning Appeals March 26, 2012 Rust occurs, red stripes on plants, drowned out plants, mildew Drip irrigation system is better Generally irrigation systems are for watering the turf Mr. Hawkins: Who put in irrigation system? HOA or Pulte /Centex Mr. Lohmeyer: Pulte /Centex installed irrigation system to the extent it is in Mr. Ochs: Item 5B, they understand Mr. Hollibaugh is determining Pulte provide as "as- built" drawing that is updated to include three areas that are not on an "as- built" drawing that Pulte already provided o There is no requirement to provide an "as- built" drawing for an irrigation system o Nowhere in any of the Ordinances does a requirement for an "as- built" exist o They provided an "as- built" drawing because it was helpful and they had it o They are willing to include the irrigation that was put in at the over -flow parking areas and irrigation adjustments they have already done. o Missing zones 41, 42 and 43 they believe apply to the planting beds for Buildings 7, 11 and 20, which is Part A o They do not believe they are responsible to install the missing zones 41, 42 and 43, therefore "as- built" will not show those Mr. Hawkins: Missing zones means missing irrigation plans? Mr. Ochs: Mr. Hollibaugh requested they do Item A and then provide the "as- built" items They suggest they do not have to do A o They can easily provide "as- built" for first two items: banked parking and adjustments that have already been made because Pulte has sent their contractor to make those adjustments in an attempt to try to settle this matter o Since they do not believe they should do A, they will not show "as- built" Mr. Ochs continued: Item C: Director determined "the irrigation plan may need to be amended following review of the updated irrigation `as- built' to ensure a high level of coverage in the amended areas noted above." o Nothing to base that determination on o Everyone may agree a high level of coverage in the amended areas would be a great idea, but Mr. Hollibaugh cannot do that. o He could rule something completely different for the next project that does not have standards. That's why they abide by the process /rule of law of elected officials that make determinations and those judgments are consistently applied to everybody that does business in Carmel Even one person making determinations from case to case, that is not the rule of law, but the rule of Mr. Hollibaugh Page 19 of 34 Carmel Board of Zoning Appeals March 26, 2012 That is not appropriate even if it makes sense o On that basis, they object to C Mr. Hawkins to Mr. Scott: You are saying there should not be any irrigation in the planting beds at all. Mr. Scott: It is not standard installation for landscaping o Commercial installation is usually installed just to irrigate grass o Anything extra would be an additional add -on, owner driven Mr. Hawkins: Would that be consistent with what the Department feels about irrigation and beds? Ms. Hester to Mr. Hollibaugh: What is throughout Traditions and irrigation throughout the community? Mr. Hollibaugh: The Determination in A to irrigate Buildings 7, 11 and 20 was to treat that area as other areas in the development had been treated. o There is irrigation in beds throughout o There is no specification as to how, other than to just do that o When reviewing the "as- built" plan, it is apparent there is conduit or sleeves in the ground ready to accept irrigation. It was just never implemented for those areas Mr. Hawkins: Would that be typical for other developments? Mr. Hollibaugh: (That all the buildings be irrigated Typically that is not something the City delves into. o There is often a requirement for, but there is no provision or standards for irrigation in any of the PUDs or in the Zoning Ordinance. Mr. Ochs: As part of the approval process, approval of the development plan and all the plans resulting in an ILP and building permit being issued to construct individual buildings at the Traditions on the Monon, was there ever a requirement or did you ever review any plans that involved irrigation in order to stamp those approved? Mr. Hollibaugh: Until the very end, when we actually got a copy of the "as- built" plan, there had been no review of irrigation. Mr. Ochs: concluded their presentation on irrigation Mr. Buschmann to Mr. Hollibaugh: Was there a blueprint of the irrigation plan that was approved by the City? Mr. Hollibaugh: The only plan the City received was the "as-built" plan o After it was requested o After a number of walk throughs, it was easy to see things were not going great as far as the irrigation system Page 20 of 34 Carmel Board of Zoning Appeals March 26, 2012 Mr. Buschmann: All in agreement Section 8.2 of PUD requires irrigation o Matter of how that is interpreted Mr. Schornhorst covered irrigation points, installation and how things should be installed based on irrigation industry standards: Irrigation heads should not be sticking out of the ground (pictures shown) o Should be flush to ground o Risers raise up to irrigate property based on area for irrigation Tall risers for high areas; shorter risers for small areas Designed specifically to reach different areas System is two -core system o One of most integral systems on the market o Two -core system is a one wire system with two wires that go around the entire property o Most important thing is wire connections If one wire not properly connected, the whole system can stop running, parts can stop running or a small section can stop running Property connections and fittings very important Improper fittings with dirt and debris cause problems (pictures shown) Number of valve boxes throughout property have water standing constantly Electrical wires in a pool of water; causing problems Water in valve boxes occasionally, but cannot be constant o Constant damage due to construction Mail box posts have broken lines, pipe and wire Broken or nicked wire causes problems Often hard to locate nicked or broken wire in mulch beds Often not notified before construction and whole street floods when wires hit Causing emergency maintenance and shutting off water o Irrigation head coverage Appropriate coverage is "head -to- head throwing water from one head to the other Minimal amount is 80 percent overlap Any wind can change coverage, especially if less than 80 percent overlap o Properly installed irrigation Lines should be run in equal "T formation" from line out of valve box Gives equal pressure throughout system Current system is linear Straight lines from the valve box o Causes pressure to drop as it goes away from valve 44 zones on property with little to no pressure at end of zone o Even with properly spaced heads, it needs proper PSI and gallon per minute o Irrigation heads water usage Spray heads use 1.65 to 2.1 gallons per minute (GPM), depending on nozzle Rotor uses 2.5 to 6.0 GPM One -inch PVC pipe (currently runs all the water) does 16 to 37 GPM Based on this, only 13.5 sprays heads and 9 rotors per zone Page 21 of 34 Carmel Board of Zoning Appeals March 26, 2012 Currently average heads per zone is 15 to 20 o Factors causing more problems to irrigation system: Friction loss at change in direction reduces flow and PSI Extra heads cause loss at end of cycle Elevation will reduce PSI and GPM PVC pipe size dictates GPM Larger pipe increases GPM Carmel City water averages 60 PSI Not high, would require pump to increase PSI Water viscosity /thickness can slow things Linear installation and too many heads causes problems Maintenance cannot correct this installation problem Ran system every day: 22 zones each evening for 8 to 9 hours to keep grass green o System should not need to run that long to keep lawn and plants watered o Majority of irrigation systems in Carmel include landscape beds for initial water when beds installed After plants established, will not need irrigation in beds This system designed to cover initial plantings Improper overlap will cause more GPM per every cycle run to adequately water all areas Main loop design would have helped give constant pressure throughout system o Current state of irrigation system Audited system to determine problems (copy in packet) Included information to install irrigation for Buildings 7, 11 and 20 Only buildings without irrigation on front sides /front door areas "As- built" shows pipes and lines Mr. Hawkins to Mr. Schornhorst: Irrigation systems for Buildings 7, 11 and 20 not installed because they would interfere with front doors? Mr. Schornhorst: No, these are mulch beds, not lawn, on the fronts of the buildings These are the only buildings in the property that do not have irrigation in the front beds in the fronts of the units Mr. Schornhorst continued: Only "as- built" drawing was submitted to the management company o It is not an "as- built" o It is a pre -plan with a few items listed as to where they supposedly are located o For winterization at end of season, because of lack of power from construction, they had to manually find each zone They had to open and manually compress from the main line Page 22 of 34 Carmel Board of Zoning Appeals March 26, 2012 Using their "as- built" it took two and one half days to locate 43 of the 44 valve boxes "As- built" not correct He included price to trace all wires and create an "as- built" from nothing With two -core system it is a needle in a haystack to find the problem wire Most of the buildings have too many heads per zone o Most of the buildings coming in from 136`" Street have entire building on one zone with over 20 heads Combination of landscape areas and mulch beds Industry standards separate lawn and bed areas They require different water cycles Heads are unevenly spaced throughout the neighborhood o Spaced five to ten to fifteen feet apart; no rhyme or reason Huge effort to get system running again o Exploratory to locate lines o If bond money is released, they can get the system to a functional state o Construction damage from Pulte o At commissioning Barthuly, Pulte, HOA and City present Supposed to show system worked completely Did not happen He ran system because Barthuly did not know how Three fourths through, zones 37 -44 did not operate o Witnessed by everybody Was not turned over to US Lawns because system did not work completely o He has gotten close over the past year o Can now keep green grass o Need to find construction damage o Cost information in packet to make system work completely o Zones 41 -44 and 39 exist, just do not come up when turned on Mr. Ochs cross of Mr. Schornhorst: When was the first time you inspected the irrigation system? Mr. Schornhorst: May 2011 Mr. Ochs: Do you have any idea when first pieces of the irrigation system were installed? Mr. Schornhorst: I do not know Mr. Ochs: You do not know if it is true or false that it was installed in 2005? Mr. Schornhorst: I do not Mr. Ochs: Page 23 of 34 Carmel Board of Zoning Appeals March 26, 2012 Irrigation systems require pretty vigilant maintenance? Mr. Schornhorst: Depends on what it is Some things need maintenance Installation is a different thing Mr. Ochs: If HOA ask you to plant a new tree and you break an irrigation line, is that a Zoning Ordinance violation? Mr. Schornhorst: Did not feel it had anything to do with it. If he broke a line, he would fix it He does not know the Zoning Ordinance Mr. Ochs: In a normal situation, at this HOA or a house, if you did not fix a break, what would the owner do to you? Mr. Schornhorst: Probably sue me for not fixing it Mr. Ochs: Impressive presentation about what is wrong with the system and how it can be fixed What is your basis for that? Your recommendations are based on what? Mr. Schornhorst: Recommendations based on overlapping coverage and correct GPM Mr. Ochs: Who determines what is correct? Where does the standard come from? Mr. Schornhorst: It is an industry standard GPM o Mathematical calculation in every irrigation plan designed by an engineer for irrigation Determines enough GPM for efficient coverage Proper coverage is same coverage across lawn and landscape bed throughout area Mr. Ochs: Can you point to anywhere in PUD or Carmel Ordinance that provides any of those specifications? Mr. Schornhorst: PUD not part of his expert opinion His expert opinion is on irrigation Mr. Ochs: I think I heard you say this is a system that is not functioning; it is really a mess and needs complete overall or replacement? Mr. Schornhorst: I did not say it needed to be replaced It needs to be corrected They need to find issues If clock turned on, nothing will happen Mr. Ochs: Page 24 of 34 Carmel Board of Zoning Appeals March 26, 2012 You provided a quote to do that? Mr. Schornhorst: Yes Ms. Hester: PUD, under Landscaping Section 8.2. Maintenance: "It shall be the responsibility of the owners and their agents [reminder Centex/Pulte were the owners] to insure proper maintenance of the project landscaping approved in accordance with the Traditions on the Monon to include but not limited to irrigation, mulching of the planting areas, replacing the dead, diseased or overgrown plantings in identical varieties with suitable substitute, keeping the area free of refuse, debris, rank vegetation and weeds." o It is the Department's position that it is the responsibility of who installs it to insure there will be the ability to have proper maintenance of the installed vegetation. That is a requirement; a standard that something has to be irrigated o The Department is not trying to tell Pulte how to irrigate; just to complete irrigation as designed o The HOA is trying to tell Pulte how to do it and goes too far The Department/Director does not have an issue with the quality or accuracy "as- built" provides, but it needs to be completed in accordance with the design (irrigation plan shown) o A of the Determination is Buildings 7, 11 and 20 Those areas receive lots of sun Sleeves are installed and ready Only place where irrigation is not provided There are no water spigots in these areas Neighborhood HOA could not water these locations or insure it is maintained through the irrigation That is all the Director is asking; they be inserted in existing sleeves in these three sections o Referring again to A, B and C If A, they install irrigation in the sleeves for these three buildings B, Mr. Ochs says they are willing to do Then C, there would be no amendment Those are the only things being requested; so it is complete according to the plan Mr. Ochs: Source of this plan and when? Mr. Hollibaugh: Provided by Pulte, Fall 2011 Mr. Ochs: Safe to say, at no point in time was this plan part of the review process by your Department prior to the issuance of an ILP or building permit Mr. Hollibaugh: That's correct. Mr. Ochs: When ILP and building permit is issued, that's a determination of what? Page 25 of 34 Carmel Board of Zoning Appeals March 26, 2012 Mr. Hollibaugh: When an ILP is issued, it is reviewed for building code and site plan Mr. Ochs: If you issue an ILP, is it safe to say that Staff has determined the structure for which you are pulling a permit complies in your determination with the Building Code and applicable Zoning Ordinance requirements? Mr. Hollibaugh: Yes, that is correct. Mr. Ochs: Building permits and ILPs were issued for all the buildings at Traditions on the Monon, making that determination and then in Fall 2011 you suddenly say, "I've changed my mind. I shouldn't have issued the ILP because the irrigation wasn't proper." Mr. Hollibaugh: The issuance of the ILP was never questioned. It was whether or not the irrigation system fulfilled the mission that an irrigation system was supposed to. Mr. Ochs: Correct me if I'm wrong, but if this particular irrigation plan is a Zoning Ordinance requirement, which our position is that it must be in order for it to be before this Board, it seems to me and our argument would be that this has already been determined. In other words, you should not have been issuing the building permits and ILPs unless this plan was part of it, if it was a requirement of the Zoning Ordinance. Mr. Hollibaugh: Maybe you're right. Mr. Hawkins to Mr. Lohmeyer: What percentage of developments in Indiana does Pulte put in irrigation systems? Mr. Lohmeyer: Depends on where irrigation goes Typically they will put irrigation in an entranceway to any community. As far as irrigation of townhome type community, it is hit or miss o It depends on the end -user or homeowner This was a Centex community they acquired in 2009 o This determination was made at some point prior that an irrigation system would be installed o Could not speak to how or why that was determined Mr. Potasnik: It is not unusual to issue an Occupancy permit, then continue to work on an outstanding issue or two Mr. Hollibaugh: It happens all the time Mr. Buschmann to Mr. Hollibaugh: The Occupancy permit on Building 13 was withheld pending the resolution of certain issues, including irrigation. Mr. Hollibaugh: Page 26 of 34 Carmel Board of Zoning Appeals March 26, 2012 He would need to look at the correspondence that went along with it. He thought the bonds placed by Pulte that included irrigation does show some indication that it was an issue at the time Miscellaneous: Mr. Buschmann: They will deal with warranty claims possibly in future litigation Tom Sharp, elected member of Traditions Board and owner of 926 Third Avenue NW Summary: Twenty -two months ago homeowners HOA was elected; taking over from developer HOA o They discovered there was no formal transfer process o Information and financial records came; they were asked to form new HOA o They knew of several defects in the neighborhood o Pulte did not cooperate in resolving the issues o Two months later, when the Director got involved, they started having monthly three party meetings o In order to document all the defects found at the beginning of their ownership of HOA Board, they put together a report talking about transition issues August 20, 2010 report documented PUD issues and other defects they saw in the beginning Are the defects construction or maintenance? From their standpoint it did not matter They took over ownership in May 2010 o They worked for seven monthly meetings on the issues Many items addressed in Letter of Determination are result of those discussions Minutes were provided documenting three -party agreements o Many of the agreements were not carried out o Bringing us to the Director making a Determination o They have gone back to the PUD Parking in sixty percent of the driveways does not meet the PUD Three points: o Homeowners have spent about $10,000 and many volunteer hours on this o The PUD defects were identified on Day One when homeowners gained control of HOA o Many PUD requirements have not been met That is why they are in front of the Zoning Board It is his understanding the PUD is a Zoning legal requirement Steve Surette: Building inspection business over 20 years; consulting relationship with Traditions on the Monon for three years Code violation: plumbing vent height o Various heights throughout the property o Found Code for terminating vents 12 inches above the roof Some vents above 12 inches and some under 6 inches Need to extend 6 inches above the roof surface so snow and water do not run back down inside the pipes Page 27 of 34 Carmel Board of Zoning Appeals March 26, 2012 Ice damming: melting of the snow on roof, refreezes, dams up causing water to go places it should not go o Rare occurrence on residential, multi family structure o Leads to series of mistakes causing hazardous situation o Complete draining and discharging of water is not happening in a couple locations on this property Sidewalks impassable o Excessive water summer or winter (photos shown) o Quoted Code from Ohio: In no case shall water from roofs be allowed to flow upon sidewalks o Pulte should know how to manage water off the buildings o Pictures shown of icing on walks and front patios; dangerous icicles (ongoing situation) o Quoted Indiana IRC Code: for roof drainage at least 5 feet from foundation walls Several buildings have no provision to discharge water 5 feet from building (photos shown) Building 3, constructed several years ago, is experiencing structural defects o Laser level shows one inch loss of elevation (photo shown) o Water not only unsafe for those walking, it is also causing structural damage He did not intend to say that minimum code was met or it should be followed this way to give you an interpretation o Codes are designed to promote life- safety and long -term durability of building o In this situation there is more that needs to be done Mr. Ochs cross Mr. Surette: Three issues: vents, ice damming, uneven masonry rows Mr. Surette: Control methods, water drainage coming off roof into landscaping beds across sidewalk and away from property Mr. Ochs: Does basis or criteria for those come from the PUD Ordinance or Carmel Zoning Ordinance? Mr. Surette: He is not that kind of expert Mr. Ochs: Been meeting with neighbors two years, every time list grows longer o This was built in 2005 o Process is set up so that the Board does not need to hear these things o Zoning Ordinance Section 30.01 and Indiana Code 3674918.1 indicate Board is allowed to hear challenges to the Zoning Ordinance Pulte fundamentally disagrees with conclusions Mr. Surette stated For purposes of this hearing, it does not matter, because it is not appropriate Overwhelming if Board heard every item homeowner did not like Not goal or appropriate for BZA Appropriate form would be lawsuit if builder does not build pursuant to Indiana Code City Prosecutor pursues code violations Page 28 of 34 1 Carmel Board of Zoning Appeals March 26, 2012 Ms. Hester: No violation of any Code or Standards o Roof is designed appropriately o Ice occurred winter of 2010 -11 with extreme ice and snow events o Standard in Carmel is 48 hours for rain to dissipate o Plan for downspouts and gutters to prevent ponding approved by City Engineer HOA wanted to change the plans to French drains Developer agreed Perorated pipes removed New system installed for HOA Some issues caused by this system Mr. Hawkins to Department: This section is not something the Board should hear in terms of the Ordinance? Mr. Hollibaugh Did not weigh in on those issues other than Building Code issues o Soil stack which Pulte agreed to fix throughout their series of meetings Ms. Hester: Mr. Hollibaugh stated earlier to her that they are not issues addressed in the letter because he did not find them to be issues Mr. Buschmann to Mr. Hollibaugh: You said Pulte agreed to fix some of these Code things o Was there a deadline? o Is there a reason they are not fixed now? Mr. Hollibaugh: He did not recall if there was a date agreed upon o It had been ongoing o Pulte explained part of the problem was getting access to private homes for repairs being done after construction was completed Mr. Buschmann: How do you verify they are doing this or what units they are having trouble getting into? Mr. Hollibaugh: Since monthly meetings have ceased, they had not done any verification other than updates provided by Pulte Do not know specific units Public Testimony: No one appeared Mr. Hawkins summarized: Board would like survey of landscaping; have everyone represented preferably with experts involved Identify date that everything would be complete to accommodate both parties Landscaping Pulte contests Page 29 of 34 Carmel Board of Zoning Appeals March 26, 2012 Mr. Wilfong to Pulte/Mr. Lohmeyer: When Pulte has an HOA formed, there is a time when Pulte will be managing the HOA, o There will be residents that can give input to the HOA to say there is something they feel should be fixed, That is not meeting the standard of the neighborhood; trees to be put in and they have not been put in yet. Is it true that a resident can bring it up as an issue and then Pulte can respond that it has not been done yet, but will be our next item? For some other neighborhood, not this one in particular. Mr. Lohmeyer: Typically but did not want to speak for Traditions on the Monon being a standard o An advisory committee comprised of a group of homeowners or volunteers from the community that will act as a transitional committee Lots of times people from the advisory committee will elect or choose to be on an acting board of directors at the point of turnover o Yes, any homeowner can bring to Pulte or the management company something that needs to be taken care of o It does not have to be an advisory committee member as a liaison Mr. Ochs: It is important to note the Declaration is a formal contract and a homeowner that believes that the Declaration is being breached has the ability to bring an action to enforce that Mr. Wilfong: If Pulte decided not to comply with the standards of the neighborhood, how long could they be out of compliance? o Until they are sued by an individual? o What forces a resident's suggestion, when Pulte is in charge of the HOA, to complete an item? Mr. Lohmeyer: Not sure of how long of duration would be acceptable Typically when they understand and are in agreement there is a deficiency or something has been done improperly or just not done at all, standard operating procedure is to take care of that issue immediately or as reasonably possible o For landscaping, some plants are not available year round Mr. Wilfong: Pulte took over from Centex in 2009? Was there any record Centex had from being in charge of the HOA as to resident complaints that Pulte received? Mr. Lohmeyer: No record, the management company that was representing the HOA for Centex continued on when Pulte acquired Centex. o There would have been some continuity o There was not an active list of complaints presented by the management company that he was aware of Mr. Wilfong: That management company was the same management company until Pulte turned over the HOA to all the residents that live in that community in August or May, 2010? Page 30 of 34 Carmel Board of Zoning Appeals March 26, 2012 Mr. Lohmeyer: Yes, that is correct o When they acquired Centex, it was a community at the threshold or past the threshold of needing to be turned over o With the acquisition process Centex and Pulte had gone through, he believed the turn- over was delayed to let others take care of it Mr. Wilfong to HOA: How much history do you have for complaints going back beyond 2010? How long had Mr. Sharp been a resident? Mr. Sharp: He bought investment property from Centex in 2007 or so. They asked for official minutes of the developer/homeowners meetings o They are not available from Pulte or Omni, which was the management company They accepted a contract in May o They stayed with Omni as the management company o Feeling that would be the best working relationship as they tried to get things corrected o Put in new management company at end of year because they felt Omni was representing the developer HOA and not the homeowner HOA o Worked with Omni through their contract period Mr. Wilfong: What do you mean the minutes are not available? Not given or disappeared? Mr. Sharp: They asked for any developer /HOA Board meeting minutes of official meetings that were held o They were not given any o Don't know whether they are available, not available or just not given to them o They thought they should have been passed as part of the transfer process from developer HOA to homeowner HOA with the financial records and things like that Mr. Buschmann: He had been representing HOAs since the mid -80's He would not want to indict Pulte o If there is a management company that keeps minutes when it is in control of a development, if Pulte does it, they would be the first he had ever seen. o Normal rule, they don't have meetings. They will appoint one or two people and let a management company run it until they turn it over Mr. Wilfong: There could be very little or zero ability to determine if residents had raised complaints before May 2010? Mr. Buschmann: Unless the management company kept a record and turned it over, that is correct Ms. Hester: Regarding the re- inspection together o May be helpful to Board if the Director could submit before and after pictures to show comparisons of things that have changed Page 31 of 34 Carmel Board of Zoning Appeals March 26, 2012 Mr. Hawkins: Anything that would be helpful Mr. Wilfong: Any sort of record would help keep score on different positions or sub item within an item Ms. Hester: Mr. Molitor has arranged for her to do an initial draft of stipulations to let out what the Board does not have to consider o They will be reviewed by counsel and submitted to Board Mr. Molitor has also arranged for all three to do proposed Findings of Fact for a road map o Up -to -date information of things that have changed Mr. Molitor: Would like to make recommendations to the Board on the issues o Subject to the Board's approval, he will follow that course of action which Ms. Hester just described Suggested they make a motion to continue the hearing to next month o Would allow all matters to be addressed by various counsel o Also allow Ms. Plavchak to address any questions she has after she has a chance to watch the entire evening's proceedings o Any additional questions from Board o May still be some public testimony Would like to suggest schedule for counsel to meet deadlines so the Board can take action at April 23 meeting Mr. Ochs: If at all possible, they would like to know if missing Board member has questions of Mr. Scott, so they can make sure he attends o That would require communication before the hearing o He would stipulate that was acceptable Mr. Molitor: With Board's permission he will discuss with Ms. Plavchak o Will try to find out at least one week in advance whether certain experts are willing to attend the meeting again for questions Mr. Hawkins: After reviewing all this and according to what the Department provides, there could be follow -up questions of any of the experts. Motion: On a motion made by James Hawkins and seconded by Ephraim Wilfong: Traditions on the Monon be continued to the April 23, 2012 meeting. MOTION CARRIED UNANIMOUSLY Mr. Molitor: Discussed following schedule with counsel of all three parties to ultimately submit proposed Findings of Fact for Board's consideration o Ms. Hester would need to put together suggested stipulations as to which issues are now undisputed; not requiring proposed Findings Page 32 of 34 Carmel Board of Zoning Appeals March 26, 2012 To have that information to all counselors in the next few days Have all three parties agree not later than April 2 on which issues are now undisputed o By April 18 all three parties submit their proposed Findings to Mr. Molitor so they can be transmitted to the Board not less than five days before the next hearing o He would offer to transmit to the Board members a proposed outline on how the Board would make their decision no later than Friday, April 20 Recognizes it is only a weekend before the hearing Hoping it provides checklist of decision points that need to be addressed April 23 Assuming the Board wants to make a decision April 23 Ms. Plavchak has confirmed via phone that she will watch the video and review any written submitted materials 7 -8. TABLED TO APRIL 23: (V, UV) North Augusta, Lot 4 Retail Use. Legal Report continued: Mr. Molitor Regarding pending litigation o He did not schedule another Executive Session because he did not feel it would require much time Did not get a favorable response from the attorneys for adversaries for U.S Architects or the Bowens Board members had expressed effort for some sort of mediation Asking Board's permission to file motion for Summary Judgment or Judgment on the Pleadings He had cordial phone call with attorney for U.S_ Architects Said he would get back within a week and it has been two weeks Inferred client does not want to proceed Motion: On a motion made by James Hawkins and seconded by Kent Broach: Allow Mr. Molitor to move forth with either /or Summary Judgment or Judgment on the Pleadings. Adjournment Motion: On a motion made by Alan Potasnik and seconded by James Hawkins: The Meeting be adjourned. The meeting adjourned at 9:30 PM. Page 33 of 34 MOTION CARRIED UNANIMOUSLY MOTION CARRIED UNANIMOUSLY Carmel Board of Zoning Appeals March 26, 2012 Approved this 2'3- day of resident James R. Hawkins Page 34 of 34 20 IL-- Filename: S/B7.A/'∎linuted20l2/032612 doe