HomeMy WebLinkAboutMinutes BZA 04-23-12Present: James Hawkins, President
Earlene Plavchak
Alan Potasnik
Ephraim Wilfong
Connie Tingley, Recording Secretary
Recused: Kent Broach (joined meeting after Items 1 -4, 111 Congressional signage)
Staff members in attendance:
Legal Counsel: John Molitor
City of Carmel
MINUTES
Carmel Board of Zoning Appeals
Regular Meeting
Monday, April 23, 2012
6:00 p.m.
Council Chambers, Carmel City Hall
Rachel Boone, Planning Administrator
Alexia Donahue Wold, Planning Administrator
Angie Conn, Planning Administrator
Mike Hollibaugh, Director, Department of Community Services
Previous Minutes:
On a motion made by Ephraim Wilfong and seconded by Alan Potasnik:
The Minutes for the meeting dated March 26, 2012 were approved as circulated.
MOTION CARRIED 4 -0
Department Report: Rachel Boone
Department requested Board vote to withdraw Items 7 -8H, North Augusta, Lot 4 Retail Use,
due to lack of prosecution
Motion: On a motion made by Alan Potasnik and seconded by Earlene Plavchak:
Items 7 -8H, North Augusta, Lot 4 Retail Use, be withdrawn, due to lack of prosecution
MOTION CARRIED 4 -0
Legal Report: John Molitor
Filed motion for judgment on pleadings regarding U.S. Architects involving the Bowen structure
o Plaintiffs asked Court for additional time to respond to motion
o Court granted 30 days
o May have report for next meeting
As discussed via email, prepared sample ballots for Items 5 -6, Traditions on the Monon
o Can discuss any questions when Board gets to those items
WWW.CARMEL.IN GOV Page 1 of 25 (317) 571 2417
Carmel Board of Zoning Appeals
April 23, 2012
Public Hearing:
1 -4. (V) 111 Congressional Signage.
The applicant seeks the following development standards variance approvals:
Docket No. 12020026 V Chptr. 25.07.02 -10 b): Number of signs (6 proposed in 14 possible
locations, 3 allowed)
Docket No. 12020027 V Chptr. 25.07.02 -10 b): Number of possible signs facing all ROWs (2
proposed, 1 allowed to each ROW)
Docket No. 12020028 V Chptr. 25.07.02 -10 b): Number of signs not facing east ROW (2
proposed, 0 allowed)
Docket No. 12020029 V Chptr. 25.07.02 -10 c): Total square footage (450 sq. ft. proposed, 315 sq.
ft. allowed)
The site is located at 111 Congressional Blvd. It is zoned B -6 /Business. Filed by Steve Granner of Bose
McKinney Evans on behalf of Lauth.
Present for Petitioner:
Steve Granner, Zoning Consultant with Bose McKinney Evans, and Robert Stefanski, Lauth
Located northeast corner 116` Street and Pennsylvania
Congressional Partners purchased property last Fall
o Fair amount of vacant space at that time
In anticipation of leasing spaces, signs are very important
Variances and ADLS petitions filed to set up sign package for this building to allow additional
wall signage
o Signage important to tenants within the US 31 Corridor
o ADLS request for new directory sign and updated ground sign
Requested sign package would allow maximum of 6 wall signs in 14 potential locations
o Sign Ordinance allows one sign per street frontage
o Variances would allow additional sign per street frontage
o Maximum square footage for all six signs combined would not exceed 450 square feet
75 square feet average per sign
Typical or smaller than other signs permitted in Corridor
Package consistent and similar to other buildings in Corridor
450 square feet is 135 square feet more than permitted for 3 signs
One -story building in same location permitted 3 signs totaling 315 square feet
This is five -story building with five times square footage to lease
Similar variances have been approved for other buildings in Corridor
o Site plans
10 potential corner locations
4 potential mid facade locations
Mid facade sign does not permit corner signs on same facade
Corner sign would permit two on same facade
These potential locations would cover placement of 6 signs for prospective
tenants
Location of existing ground sign and new directory sign indicated
o East facade does not front a street; variance needed
Lauth sign will be moved from current building
Second sign needed on east facade
Page 2 of 25
Carmel Board of Zoning Appeals
April 23, 2012
o Potential of 3 signs facing west /Pennsylvania Street and 3 signs on south facade /116`"
Street
L- shaped building creating the 3 sign locations
Will not have appearance of 3 signs along L -Shape
o Additional square footage would allow 6 signs averaging 75 square feet
Renderings shown with potential sign locations on all sides
Corners or middle locations
Lauth sign will be one of the signs facing Pennsylvania
Ninety square feet
Existing sign from previous location
Four -foot letters
Shepherd Insurance sign will be one sign on the west elevation
Seventy -five square feet
Three -foot letters
o Adequate signage needed for potential tenants
o Building owners are reluctant to have holes drilled into buildings, thereby limiting
number of signs they want on each building
Public Hearing closed
Department Report:
Rachel Boone
This is sign package for whole building
o Six signs in 14 possible locations
o Good scenario to know all the possibilities
o Common request from other office buildings to divide square footage, add a little more
square footage, limit number of signs, limit maximum square footage use average guide
for size of signs, maximum height and colors
Package will be heard at Special Studies Committee for color and size
o Variances are for the locations, 6 signs with maximum 450 square feet and signs not to
exceed 90 square feet (75 square feet average)
o This system in place for a few other buildings in US 31 Corridor
o With L- shaped building, all the possible locations will not be seen at the same time
The different angles will make it seem there are not as many signs
Department recommended positive consideration of all Variances
Discussion:
Five or more sets of buildings in the Corridor have ask for relief
o Sign Ordinance does not account for multiple tenants in multi -story buildings
o Ordinance permits one sign per street frontage, regardless of height of building
Two previous signs on buildings
o Asking for six signs; not one for each of the 14 possible locations
Purpose is to be competitive in leasing space
Tenants #7 or higher will not be permitted signs
o Only possible if square footage has not been used for the 6 signs
Page 3 of 25
Carmel Board of Zoning Appeals
April 23, 2012
Center sign on any facade would not allow any additional signs on that facade
o Only L -shape would permit one in center and two on edges of other facade
Maximum 90 square feet, including 25 percent logo, for any sign
No minimum established
Motion: On a motion made by James Hawkins and seconded by Ephraim Wilfong:
Docket Nos. 12020026 V through 12020029 V, 111 Congressional signage, be approved
for number of signs (6 proposed in 14 possible locations, 3 allowed); number of possible
signs facing all ROWs (3 proposed —west and south, 2 proposed north, only 1 allowed to
each ROW); number of signs not facing east ROW (2 proposed, 0 allowed); and total
square footage (450 square feet proposed, 315 square feet allowed).
MOTION CARRIED 3-1 (Mr. Potasnik negative)
Mr. Broach joined the meeting
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.
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 (Traditions on the Monon
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
Mr. Molitor:
Pursuant to Board's instructions, all three parties filed proposed Findings of Fact to support their
argument
o Forwarded to Board members and each party
As directed by Board, he prepared outline for depository motion to deal with outstanding issues
o He used submitted proposed Findings and photo documentation provided by Department
o Seven paragraphs from the Director's Determination did not remain under Appeal
1A, 3A, 3B, 3C, 3E, 4A, 4E
Recommended Board move those paragraphs be affirmed
o Remaining thirteen outstanding paragraphs
1B, 1C, 1D, 2A, 2B, 2C, 3D, 4B, 4C, 4D, 5A, 5B, 5C
o HOA noted two additional issues not addressed in Director's original letter
Page 4 of 25
Carmel Board of Zoning Appeals
April 23, 2012
6A Plumbing vent height
6B Roof drainage
Recommended these be discussed and voted on separately
o Pulte Appeal included two issues in their proposed Findings
6C Verification and enforcement of repairs
6D Status of three performance bonds
Recommended these be discussed and voted on separately
o Prepared 17 proposed ballot sheets, labeled by issue /paragraph
Included proposed Findings/Basis to support each determination
Additional Conditions can be imposed by Board member on bottom of ballot
Different from normal decisions /votes
o Recommended separate vote on each of 17 issues
o At conclusion of 17 votes, take final vote that incorporates by reference the 17
preliminary votes
o Final recommendation to delegate to him the responsibility of rolling all votes together to
one complete set of Findings of Fact
o Recommended Board move to adopt this format
Motion: On a motion made by Alan Potasnik and seconded by Ephraim Wilfong:
Adopt the format set forth by our attorney, having an individual vote on each issue and
then a summation at the end that would include all seventeen of the votes.
Discussion:
Mr. Hawkins:
Should there be a time limit on each item?
Mr. Molitor:
If this motion is approved, the Board is at its own discretion as to how long it wants to discuss
each item
Unless the Board asks questions, there is no room for any further oral argument
The only thing remaining from last month was the conclusion of the Public Hearing with respect
that Mrs. Plavchak did not have an opportunity to pose questions of any of the parties
o Mrs. Plavchak indicated she did not have any questions
Mr. Buschmann:
Did not want any further discussion but would answer any questions
Mr. Ochs:
No further discussion
At conclusion of last meeting, the parties were going to meet at the site for an inspection as to
where things stand and landscape audit
o Did not know how that would be worked into the proceedings
Mr. Molitor:
Felt the proposed Findings of Fact had a couple days to incorporate any changes that might have
been compelled because of the inspection
When the Board reaches that point in the balloting, perhaps they should quiz the parties if there
is anything they wish to add to their proposed Findings (Items 4B, 4C, 4D)
Page 5 of 25
MOTION CARRIED UNANIMOUSLY
Carmel Board of Zoning Appeals
April 23, 2012
Discussion:
Bottom of ballots will be signed and dated individually
Check mark will indicate whether Board members affirm the Determination or the Appeal
should be upheld
On or more boxes should be checked to support the vote
These check marks will be reconciled on final Findings prepared by Mr. Molitor
Parts of all three Findings could be utilized in Final Findings
If any party objects to Findings of Fact, they can file a lawsuit
VOTES:
Item 1B:
Street light not required. Neither the City Ordinances nor PUD required a street light in the new
parking lot area that had been constructed by Pulte
Results 1B: 5 Affirmed Director's Determination (1 a; 5 b)
Item 1C:
Additional overflow curb adjacent to the retaining wall will not result in an improvement to the
drainage design and shall not be required.
Results 1C: 5 Affirmed Director's Determination (2 a, 4 b)
Item 1D:
The guard rail to be completed, including installation of additional segments of missing rail
material, approximately eight (8) boards. An additional coating of black paint shall be applied to
the railing already in existence, with additional paint required for the new sections.
HOA appealed: Seek confirmation timbers are approved guard rail material
Mr. Buschmann:
o Pulte did not file initial Appeal, they sent Findings
Mr. Molitor:
o Used proposed Findings indicating they had an issue with the Director's Determination
Mr. Ochs:
o Pulte indicated they would install the eight boards
Mr. Molitor:
o If that is an indication the two parties are in agreement and wish to uphold the Director's
Determination, then Board could dispense with vote on this issue.
Results 1D: Director's Determination affirmed by Default no vote added to Paragraph #1
Item 2A:
Repair curb cracks: Presence of 20 remaining cracks in the curbing has been identified and
categorized as to their severity by the City Engineer. The repair of those cracks is essential to the
Page 6 of 25
Carmel Board of Zoning Appeals
April 23, 2012
Item 2B:
longevity of the improvement, and for proper conveyance of storm water. The repair of all curbs
with cracks rated as "category 2, 3, 4, and 5" shall be required according to the standards of the
Carmel Department of Engineering.
Traditions did not appeal
Pulte alleges the Director has no authority under Carmel Ordinances or the PUD to require the
repair of cracks in the curbing. Pulte asserts they were property installed and cracking is normal
for concrete. Further Pulte argues much of the curbing referenced in the Determination is many
years old and the responsibility of maintenance is that of the HOA
Mr. Hawkins:
o What is typical life of concrete curbing?
Matt Lohmeyer, Director of Land Development, Pulte:
o How long concrete would remain in place is different from cracks in the curbing
o Suggestion in needing to replace the curbing is the cracks are creating a detriment or
failure
o Typically speaking concrete is a 50 -year design product
Mr. Hawkins:
o Recalled claim that concrete could have been damaged by construction vehicles
Mr. Lohmeyer:
o That is one possibility
o Also possible it could have been damaged by moving trucks when residents moved into
their homes
o Snow plows, bobcats, other equipment during maintenance of the property /common areas
Results 2A: 3 Upheld Pulte's Appeal (2 e, 1 f [when and how cracks occurred])
2 Affirmed Director's Determination (2 b) (Hawkins and Potasnik)
Finish asphalt has been installed throughout the project. The addition of more pavement in the
area of Building 7 will likely have a negative effect on drainage in this area, and shall not be
required. However, the concrete drives for Building 7 have been installed with a finished grade
approximately 1" above finished pavement, causing a maintenance problem. The driveway pad
to each unit in Building 7 shall be re- installed so the concrete is flush with the asphalt pavement
of the drive lane and new concrete driveways shall be poured to be flush with existing finish
asphalt. Further, in the area of Building 14 and Building 15, the offset between the concrete drive
and top of asphalt is a maintenance problem and shall be repaired by Pulte either through milling
of existing asphalt and the laying of new asphalt to the level of the drive or through
reconstruction as required with Building 7.
Traditions did not appeal
Pulte appealed that part of paragraph 2.B of the Determination which requires them to re- install
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 existing finish asphalt.
Pulte further alleges that the Director has no authority under the Carmel Ordinance or PUD to
require the re- installation of driveway pads flush with existing asphalt.
Page 7 of 25
Carmel Board of Zoning Appeals
April 23, 2012
Mr. Hawkins:
o Were drives in when the units were sold or put in subsequent to sale?
Mr. Lohmeyer:
o Did not know
Mr. Ochs:
o Form of the Pulte purchase agreement, often a unit can be sold, contract entered into prior
to construction being completed in some instances.
o In other instances, the unit would have been complete
Varied from unit to unit
o Either way, the closing on the acquisition would not have occurred until every item was
completed
Particularly the driveway, because it would be necessary to access the unit
It would need to be done to pull an occupancy permit
Hawkins:
o Did Centex/Pulte typically have the buyer inspect the property /final walk through prior to
closing?
Ochs:
o Will not comment or know
o Project started by Centex, separate from Pulte
Pulte took over after project commenced
o Answer will only cover after Pulte took over
Buschmann:
o No homeowner can inspect the street, it is common property
Hawkins:
o Is concrete flush with drive for model home?
Buschmann:
o Mr. Sharp told him that both models were in Building #1
There have been no issues with Building #1
Mr. Ochs:
o Pulte has a walk through with the development of a punch list as a standard operating
procedure under Pulte's sale and purchase agreement
Those items are typically completed post closing
Sometimes with an escrow established
o During a certain period of time, there could have been a lip on Building #1
Perhaps, the top coat on the street for Building #1 may not have been installed yet
Do not know when top coat was put on
Since it was not in Mr. Hollibaugh's original findings, they assume it was put on
sometime
It was flush or grade difference was not large enough to have made his
original finding
Mr. Hawkins:
o Did Pulte or Centex sell the units in Building #7?
Mr. Hollibaugh:
o Building #7 was built by Centex
o Map provided with buildings built by Centex
Page 8 of 25
Carmel Board of Zoning Appeals
April 23, 2012
Vacant area later built by Pulte
o Indicated asphalt that was part of the original pour
Mr. Ochs:
o They do not identify buildings in same manner
o After viewing Mr. Hollibaugh's map, they are in agreement in terms of timing
Mr. Hawkins:
o Generally in the State of Indiana a punch list id given to the builder of new construction
in the first twelve months.
Mike Barden, Pulte Process Improvement Manager
o Centex operated under a warranty service on demand
Homeowner's responsibility to report any defect to Centex
o Pulte does a scheduled service request with the customer one year after closing
Mr. Buschmann:
o Remember the original appeal that brought this before the administrator was an appeal
that the top coat had not been applied in front of these three buildings
Complaint was not about the driveway
Street had not been paved, so they were not equal
Director determined if they applied additional paving before Building 7, it would
create a drainage issue
Director found they could do additional paving in front of Buildings 14 and 15
Whole basis of the appeal was the HOA did not think they had finished the streets
Not an individual unit argument
Mr. Hawkins:
o Are streets finished?
Mr. Ochs:
o Streets are finished
o Believe the top coat has been applied to all streets
Mr. Hollibaugh:
o The project was a work in progress beginning with the initial building through the final
Certificate of Occupancy
o Initial appeal was top coat had not been applied throughout entire project
o During process, Pulte did apply top coat on vast number of streets, but they did not along
entire stretch along initial /perimeter streets, including area of Buildings 14 and 15
Surprised owners
They felt additional work needed to be required
A lot of top coat was installed properly
Mr. Ochs:
o Testimony in first hearing showed from a number of borings on the streets, according to
the City Engineer, reflected they met the requirements for the streets
Would have included the top coat
Mr. Hollibaugh:
o That is pavement thickness
o This is about relationship of pavement to driveway
Mr. Ochs:
o Thought the question was whether the top coat had been applied everywhere
Answer is Yes
Page 9 of 25
Carmel Board of Zoning Appeals
April 23, 2012
With top coat installed, is there a small difference in grade between driveway and
the street is a different question
Ms. Hester:
o When whole dispute started, top coats were not down
o Director was waiting for top coat to catch up with driveway
o When top coat was installed, he saw it did not catch up with driveways on Building 7 and
also Buildings 14 and 15
Mr. Hawkins:
o So issue is the top coat is down according to Pulte, HOA originally appealed it was not
down, Director determined there was not enough of it down
Mr. Hollibaugh:
o It was not correctly installed.
Mr. Hawkins to Mr. Buschmann:
o To your knowledge did any of these unit owners identify this issue with Centex?
Mr. Sharp (HOA):
o No, they do not have anyone that can address that
o Problem when the owner HOA took over from the developer HOA
o Typically an owner does not concern themselves with the exterior of the building in
townhomes
Concerned with paint on interior walls
HOA handles exterior items: landscaping, streets, drainage, etc.
Mr. Hawkins:
o How long have the owners been in Building 7?
Mr. Sharp:
o Did not know
Results 2B: 4 Affirmed Director's Determination (2 a, 4 b)
1 Upheld PuIte's Appeal (1 d, 1 e [street issues should have been addressed at
time of City inspection; driveway defects should be addressed before buyer took
ownership]) Plavchak
Item 2C:
Pavement designs at end of drive lanes in four locations identified by Traditions is per the approved plan
for the project, and that installation of curbs would have a detrimental effect on drainage. As such, curbs
shall not be required in those areas. However, in those four locations identified by Traditions, the
pavement/turf transition 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.
Traditions appeal, asserting that the Determination should state that "all road edges should be curbed"
based upon the proposition that "Traditions on the Monon was designed to be a curbed community; not
selective curbing or curbing at the discretion of the developer."
Pulte appeal Paragraph 2.C. of the Determination, asserting that the Director has no authority to make
the determination because neither the PUD nor the Carmel Zoning Ordinance provides a basis for the
Page 10 of 25
Carmel Board of Zoning Appeals
April 23, 2012
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.
Item 3D:
Portions of the North Retaining Wall were reconstructed to correct outward shifting and that "back fill
and sod issues" were unidentifiable upon inspection. As such, Pulte shall not be required to repair any
back fill and/or sod issues with regard to North Retaining Wall.
Pulte did not appeal
Traditions appeal: in order 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.
Results: 5 Affirmed Director's Determination (2 a, 4 b)
Action:
Results 2C: 3 Upheld Pulte's Appeal (1 e #49& #50, 1 f, #50, 2 g #49 and should have been
addressed at City street inspection])
2 Affirmed Director's Determination (2 a)
Mr. Hawkins asked for report on planting survey
Mr. Ochs:
o Pulte's landscape expert, Jud Scott, present for inspection and could report his
observations
Mr. Buschmann:
o Agreed before the meeting if experts were to testify, they would be notified in advance
Their expert, Mr. Schornhorst, was present for the inspection
Not present at this meeting
Mr. Ochs:
o Did not recall agreeing to that
o Board specifically requested the landscape person and one person from each client attend
Thought they would be able to discuss results that occurred after last hearing
Mr. Molitor:
o Suggested Board may want to ask Department whether they wish to make any change or
modification in their Determination as a result of on -site inspection
Ms. Hester:
o Findings from audit were incorporated into Department's Findings
4B no replacements were done
4C there were replacements of 4 arborvitae in northeast corner, 5 arborvitae in
funeral home parking lot and 6 arborvitae in southeast corner
4D for volcano mulch, there were dirt piles in place of mulch around trees
Findings are result of what Mr. Mindham found
Mr. Molitor:
o Suggested they ask HOA and Pulte group whether they have made any modifications in
their proposed Findings as a result of the inspection tour
Page 11 of 25
Carmel Board of Zoning Appeals
April 23, 2012
Mr. Buschmann:
o Had not made any modifications
Mr. Ochs:
o Only modification they made was built into several of the Findings that Pulte complied
with its obligations with respect to landscape audit
o Abundantly clear during inspection, as Board can see from some photos the Department
took, several shrubs were damaged from cars driving over them, exposing the ball /root
o Three bushes look like they have been damaged from dog urine
o There are a lot of dead and diseased trees, but that is not a function of improper
installation, which needs to be distinguished
o Pulte's position was once installation occurred, obligation for maintenance was the HOA
o There was evidence on the volcano mulching that improper maintenance is ongoing and
occurring now with edging of some beds
Instead of removing dirt, they threw dirt on top of mulch
o Requirements of PUD Ordinance was installation of material
At one point in time, every planting, hundreds and hundreds, was done
Small number with maintenance issues, but that is not responsibility of Pulte
Mr. Buschmann:
o Issue of the walk through was a determination of change
o Everything Mr. Ochs just said existed and could have been part of presentation in March
o Whole argument at the beginning was they were improperly installed
There were balls out of the ground
Had nothing to do with cars; many are not near a driveway
This is restatement of an argument they could make
City said purpose of walk through was a change
They found no changes, other than a few things that were installed
There is no additional argument that could not have been made at the March
meeting
Item 4B:
Pulte shall replace missing and dead plant material at the foundations installed with construction in 2009
or later for Buildings 23, 17, 16, 15, 14, and 13. Further, that Pulte shall replace missing and dead plant
material installed with buildings constructed without irrigation systems for Buildings 7, 11, and 20.
Traditions did not appeal.
Pulte appeal: 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. Pulte argues that
Section 8.2 of the PUD Ordinance states that owners or their agents are responsible for insuring proper
maintenance of project landscaping, and that this would include replacing dead, diseased or overgrown
plantings.
Pulte further alleges that the Director does not have the ability or the authority to determine that the
Applicant and not the 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 the
Applicant.
Page 12 of 25
Carmel Board of Zoning Appeals
April 23, 2012
Mr. Hawkins:
o Ask Director if there were missing plants?
Some say dead and missing from photos
Mr. Hollibaugh:
o There are missing plants
o His understanding that everyone was in agreement on what needed to occur in driveway
areas for 4A
o He was not on the inspection
o From photos it is apparent there are a number of missing shrubs
Mr. Hawkins:
o Lack of irrigation on Buildings 7, 11, and 20 contributed to demise of these plants?
Mr. Hollibaugh:
o Did not know
o Difficult to have them properly maintained if they do not have access to water
Mr. Hawkins:
o Ask if it was acceptable procedurally to allow PuIte's landscape architect to discuss this
without Traditions' expert witness?
Mr. Molitor:
o Public Hearing was closed subject to Ms. Plavchak's right to ask questions; she waived
that right
o Unless Board wishes to reopen Public Hearing, he did not see that it was appropriate at
this time
Mr. Ochs:
o Went on record as objecting on the grounds there was additional work and evidence
submitted as a result of that inspection
It is additional information Board is considering
If they do not have a proper opportunity to discuss that and provide response, that
is a violation of due process rights
If they go forward and are not given the opportunity, he wants that to be reflected
on the record
Mr. Molitor:
o So noted
Mr. Potasnik:
o Under this item in the booklet they received, what is significance of blue tags in certain
landscaping photos?
Ms. Hester:
o As group was going around, certain trees in prior report were dead and were still dead.
o Jud Scott was blue ribbon marker
o Some pictures were taken before blue tags were on
o They are not nursery tags
Mr. Hawkins:
o Does that mean the ones that do not have blue tags were alive at the prior one?
Ms. Hester:
o No, it could have been picture was taken before trees were tagged
Page 13 of 25
Carmel Board of Zoning Appeals
April 23, 2012
Mr. Ochs:
o Not sure any significance on tags
o It was for their purposes as they were doing the inspection
Mr. Hawkins:
o Ask Pulte if their landscape architect inspected this subsequent to last meeting?
Mr. Ochs:
o Yes, he was present on the walk through
Mr. Hawkins:
o Is there anything he found different on this walk through than he found previously? On
second walk through, what would be good for Board to know?
Jud Scott, with Jud Scott Consulting Arborists:
o Has not done two landscape audits
o Has been on site multiple times; looking at volcano mulch the first time
o Looking through the booklet that was given to Board, it appears this is worst looking
landscape in town
o Counted 40 plants in booklet; roughly 2,000 to 3,000 plants on site; so very small number
o He did not see a lot of plants he thought were missing from the original installation
Tthought they were missing from dying over the years; maybe someone did not
like them and removed them.
Did not know why they were missing
Did not think they were omitted
Noted he is a registered consulting arborist; not a landscape architect, but he does a lot of
landscape audits
Reading through plans submitted by David Kalauba, Iandscape architect, it says
he will provide an inspection at the end
Any plants that do not comply with his inspection will be replaced under
his direction
Tells him Mr. Kalauba had opportunity to inspect and at that time if things
were missing from original installation he would have pointed them out
o A lot of plants along driveways are run over when people cut corners
Suggested ornamental grass which will come back instead of yews
Yews were probably improperly specified by original landscape plan
o There are some dead plants
Two summers of drought have contributed to a lot of dead plants
In irrigated and non irrigated areas
Plants are living things and unfortunately they die
Mr. Hawkins:
o Had Pulte engaged a landscape architect to finalize the audit?
Mr. Lohmeyer:
o The majority of this was completed under Centex management
o Did not know if they had enlisted Mr. Kalauba
o Pulte has not done that on anything they have installed
Ms. Plavchak:
o Questioned lack of irrigation available around Buildings 7, 11, and 20
Any plants were probably dead in the ground to start since there was no way to
water them
Page 14 of 25
Carmel Board of Zoning Appeals
April 23, 2012
Mr. Scott:
o In theory it makes sense, but fact is he cannot say all dead plants are around those
buildings
Intermittent through whole project
Ms. Plavchak:
o Plants around 7, 11, and 20 that were alive? Were most of the dead plants around those
three buildings?
Mr. Scott:
o Yes, plants were alive around those three buildings.
o No relation to those buildings and dead plants
o Forty plants in book are throughout project
Not correspondent to a blighted area or area with no water
Could not tell which areas did not have water
Mr. Hawkins:
o If there were 2000 to 3000 plants since 2009, what percentage would you expect to die?
Mr. Scott:
o Had folded up his landscape business.
Plants die for numerous reasons
They were always doing replacements
o This is maybe two percent of total plants
That's reasonable
As a landscape firm, he would not have been surprised to replace that many plants
over a five or six year period
Mr. Buschmann:
o Testimony Mr. Scott gave was not limited to first inspection and this one
He was "supposing" about what first person did
He reopened his testimony from March meeting
They have not been afforded opportunity to do same thing
He objected and felt they had been denied due process
They were not informed testimony would be reopened at this meeting
Were told if Ms. Plavchak had questions, both would bring experts
Mr. Scott answered Board's questions, but it was open ended
Mr. Molitor:
o Are you requesting hearing be continued so you can bring expert?
Mr. Buschmann:
o Felt Mr. Schornhorst could be available
o Would be at Board's discretion to reopen hearing to take additional testimony or simply
to note objection and to move on
Ms. Hester:
o Pointed out submission made by Department was within the five -day statutory period.
o No one else submitted an update
Mr. Hawkins:
o How many other items open up to this 4C, 4D, 5A C?
Mr. Buschmann:
o Walk through did not specifically deal with irrigation
Page 15 of 25
Carmel Board of Zoning Appeals
April 23, 2012
Mr. Ochs:
o Under impression Ms. Plavchak might ask questions.
Came prepared
Would be unfair to them to delay this because HOA was not prepared
o Putting aside issue on walk through, on any other issue, Board has ability to ask questions
Nothing irregular about that
Knew it and HOA should have known it
If they were concerned, they had ability to bring their expert
Mr. Buschmann:
o They were specifically informed that if Ms. Plavchak had any questions of experts, they
would be notified in advance to bring their experts
They were not so notified
Mr. Molitor:
o Confirmed that was true
Mr. Hawkins:
o Agreed with Mr. Ochs that Board has right to ask questions after public portion of
hearing has been closed
Mr. Molitor:
o Confirmed that was true
Motion: On a motion made by Mr. Hawkins and seconded by
In order to be fair to all parties, continue Items 4B, C, and D.
Results: Motion died for lack of second.
Results 4B: 3 Affirmed Director's Determination (1 a, 3 b)
2 Upheld Pulte's Appeal (2 e [when or how damaged and/or missing])
Item 4C:
Pulte shall replace missing and dead plant material in the Common Area 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` St (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)
Traditions did not appeal
Pulte appeals 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. Pulte argues that Section 8.2 of the
PUD Ordinance states that owners or their agents are responsible for insuring property maintenance of
project landscaping, and that this would include replacing dead, diseased or overgrown plantings.
Pulte further alleges that the Director does not have the ability or the authority to determine that the
Applicant and not the 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 the
Applicant.
Page 16 of 25
Carmel Board of Zoning Appeals
April 23, 2012
Mr. Hawkins:
o This is not lack of irrigation but simply trees that have expired over time?
Mr. Hollibaugh:
o Confirmed it is not an issue of irrigation
Mr. Hawkins:
o Are these since 2009 or prior to 2009 or is it a mixture? Were they prior to the drought?
Mr. Lohmeyer:
o Believed they were a mixture
At this point, all would have been planted over a year ago
Believed some were planted prior to drought
Results 4C: 4 Upheld Pulte's Appeal (2 e, 1 f #82], 1 g [when or how damaged])
1 Affirmed Director's Determination (1 a) Broach
Item 4D:
With regard to tree mulch, 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 HOA was operated by the developer and has continued under the management of the
residents, the cost of the repair of 110 trees shall be split equally between Traditions and Pulte,
amounting to $1100 each.
Traditions appeals with the argument that the volcano mulching did not continue when the HOA was
turned over to be managed by the residents and the objection to a splitting of the cost of repair.
Pulte appeals with the argument 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.
Mr. Hawkins:
o From photos, it appears a lot of mulch has been removed and there is just dirt
Mr. Hollibaugh:
o Not consistent throughout the project at this time
Looks like a work in process
Mr. Hawkins:
o Has HOA engaged anybody to do this?
o Who is responsible for this partial work?
Mr. Buschmann:
o Mr. Schornhorst has been doing the work
Mr. Scott:
o Chunks of dirt are from recent re- edging of trees
Mulch has been placed on top of the dirt chunks
That is part of problem if it has gone on for six years
Common practice would have been to remove dirt chunks
Mr. Buschmann:
o HOA raised this issue two years ago about improper mulching
Page 17 of 25
Carmel Board of Zoning Appeals
April 23, 2012
Ms. Plavchak:
o Has any landscaping company been instructed to install mulch since May 2010 when
HOA took over?
Ms. Victoria Mandras, HOA Board member:
o They did not specifically detail anyone to add mulch
May through December 2010, landscape contract was still held by Pulte HOA
They walked through development in 2011 with their landscape company, US
Landscape
Specifically told not to add mulch because HOA had documented volcano
mulch problem and did not want to exacerbate condition
Ms. Plavchak:
o HOA had a landscape company of their own choosing for 2011 and did not ask them too
mulch?
What exactly did they do?
If there were issues, why didn't they fix them?
Did they do any edging?
Ms. Mandras:
o HOA was trying to work with Pulte and City in numerous meetings to get these resolved
without taking on the responsibility
Photos from 2010 in initial transition booklet showing volcano mulch was
installed that way
Their landscaping company did edging last couple weeks
Results 4D: 4 Upheld Pulte's Appeal (2 e, 2 f, 3 g [maintenance issue, not zoning issue, HOA
control since 2010 could have corrected, can't prove trees died because of volcano
mulching))
1 Affirmed Director's Determination (1 a) Hawkins
Item 5A:
The irrigation system audit conducted by the City Department of Community Services was complicated
by an As -Built plan which accounts for only forty (40) of the forty -three (43) irrigation zones, does not
indicate recent updates from the parking construction and /or subsequent resulting irrigation adjustments.
Field inspection and As -Built plan indicates the installed irrigation system provides coverage for the vast
majority of the property, but foundation plantings for Building 7, Building 11, and Building 20 where
irrigation conduit exists but irrigation hardware was not provided. In certain areas, and along the eastern
edge of the property, plants have been lost to drought because there is no ability to use a garden hose in
areas not covered by the irrigation system. As such, Pulte shall install an irrigation system for the
foundation plantings for Building 7, Building 11, and Building 20.
Traditions appeals part of Paragraph 5.a. of the Determination, asserting 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 to require Pulte to install an irrigation system for the foundation plantings for
Building 7, Building 11, and Building 20.
Pulte appeals Paragraph 5.a. 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
Page 18 of 25
Carmel Board of Zoning Appeals
April 23, 2012
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.
Mr. Hawkins:
o In reviewing his notes, thought there were no appeals for 5C
Second paragraph of 5C indicates Pulte installs irrigation in existing sleeves for
Buildings 7, 11, and 20 that irrigates the foundation planting beds for those three
buildings which is part of 5A which both appealed
Seems to contradict itself
Mr. Molitor:
o Agreed they seem somewhat contradictory
Vote on 5A may obviate a vote on 5C
Suggested they see vote on 5A and how it may affect whether there is need for
vote on 5C
Mr. Buschmann:
o Thought Mr. Schornhorst testified the presented plans were defective in other areas
Pulte would not do a plan on those three areas if Pulte was not going to fix them
Mr. Ochs:
o Had previously agreed to provide under 5B As -Built drawings that are updated to include
overflow parking area and irrigation adjustments
Since they appealed the missing zones of 41, 42, and 43 which relate to Buildings
7, 11, and 20, they said they would not provide that
Since they are objecting to 5A, 5C is included to be consistent
Results 5A: 4 Affirmed Director's Determination (4 a)
1 Upheld Pulte's Appeal (1 f [Pulte findings #92, 93, 94]) Wilfong
Items 5B and 5C:
Mr. Hawkins:
o Is there a need for a vote on Items 5B and C?
Mr. Molitor:
o Would leave it to discretion of the Board
Implied to him if four wished to uphold the Director's Determination on 5A, the
same four would presumably favor Director's Determination on 5B
Recommended Board vote on 5B
Item 5B:
Pulte shall update the Irrigation As -Built drawing to include the over -flow parking areas, the irrigation
adjustments, and missing zones, 41, 42 and 43.
Item 5C:
The irrigation plan will need no amendment if Pulte updates the Irrigation As -Built drawing to include
the over -flow parking areas, the irrigation adjustments, and missing zones. And Pulte installs irrigation
in the existing sleeves for Buildings 7, 11 and 20 that irrigates the foundation planting beds for those 3
buildings.
Page 19 of 25
Carmel Board of Zoning Appeals
April 23, 2012
Mr. Ochs:
o Asked for clarification as to the Director's intent with respect to 5C so that everyone
knows what Board is voting on because language is such that Pulte is uncertain as to
exactly what Director means.
One member of Pulte team suggested amending the plan to just show all irrigation
that would be installed
Someone else suggested when it is all done, they will need to amend it and
modify the system
Mr. Molitor:
o Thought request was well taken
Suggested complete vote on 5B before clarification for 5C
Unless request relates also to 5B
Mr. Hollibaugh:
o It was not clear without having a chance to look at As -Built with amendments
Needed to look at plan to determine if one or two heads may be required
Was not to look at entire irrigation plan and then make recommendations
Results 5B: 4 Affirmed Director's Determination (4 a [1 #29])
1 Upheld Pulte's Appeal (1 f [no specs in PUD]) Wilfong
Item 5C repeated:
The irrigation plan will need no amendment if Pulte updates the Irrigation As -Built drawing to include
the over -flow parking areas, the irrigation adjustments, and missing zones. And Pulte installs irrigation
in the existing sleeves for Buildings 7, 11 and 20 that irrigates the foundation planting beds for those 3
buildings.
Mr. Hawkins:
o Are the adjusted drawings something that would typically be reviewed for a
development?
Mr. Hollibaugh:
o It is atypical
Irrigation plans have not historically been part of anything going before Plan
Commission
Mr. Hawkins:
o As he reads it, there is nothing that suggests a review in this circumstance in the
Determination
It indicates the irrigation needs to be installed according to the As -Built drawings
Mr. Ochs:
o If Pulte does not appeal (That determination has not been made), this provision, if parties
would agree they would stipulate that with respect to Buildings 7, 11 and 20 which is
missing zones 41, 42 and 43, they would submit the plans as to what they were going to
do to Mr. Hollibaugh ahead of time
He could approve those plans.
They would install pursuant to those plans
If they installed pursuant to those plans, they would be done
Mr. Molitor:
o Did not think it changed the provision
Page 20 of 25
Carmel Board of Zoning Appeals
April 23, 2012
o What did Mr. Hollibaugh think that would do with respect to his determination on 5C?
Mr. Hollibaugh:
o Until the City receives As -Built drawing, a real determination cannot be made
o If other Appeals would have been upheld, they would not have to discuss it
City needs to get As -Built plan before any further action or determination can be
made.
Mr. Ochs:
o In addition to what he suggested, plans for those zones would be shown on As Built
Mr. Molitor:
o As he understood, it does not appear the Director wishes to modify this paragraph of his
Determination
Maybe Board members will need further clarification
Not sure what the result would be in terms of how Director would proceed
Ms. Hester:
o It is confusing, but seems if they are going to amend it, they have to see it before they go
any further
It may render it moot or completed
Could it be continued?
Mr. Buschmann:
o Maybe they should hold 5C until the May meeting if there is a determination to make a
ruling on 5C
Mr. Ochs:
o Suggested getting Director everything he needed
suggested Director approve final design, taking into consideration the As Built
that shows everything
Once approved, Pulte would install pursuant to what Director approved
Did not understand why they needed to hold this open for any reason
Mr. Hawkins:
o Should that have been stipulated in 5B and 5C dropped?
Mr. Molitor:
o At this point there does not seem to be any draw back to affirming the Director's
Determination with respect to 5C
Action: On a Motion made by Mr. Hawkins and seconded by Mr. Potasnik:
To amend 5C to affirm the Director's Determination in 5C with the stipulation that the
plans be reviewed and approved prior to installation.
Results 5C: 4 Affirmed Director's Determination (2 a, 3b [stipulated plans be approved by the
Director prior to installation])
1 Upheld Pulte's Appeal (1 f [Pulte Finding #103]) Wilfong
Items 6 A -D:
Mr. Buschmann:
o Clarification for Items 6 C and 6D
6C Pulte had proposed any work order to be done would be completed in 30 days
HOA had requested July 1, but would stipulate to 30 days
Page 21 of 25
Carmel Board of Zoning Appeals
April 23, 2012
That would save a determination
6D he and Mr. Ochs agreed in their Findings this Board does not have authority to
direct City to do any action one way or the other with regard to the bonds
Mr. Ochs:
o They do not believe they were appropriate
They do not want to waive that argument
Mr. Molitor:
o Can 6C be withdrawn because both appellants are in agreement?
Mr. Buschmann:
o Under 6C, Pulte proposal is that any work would be done in 30 days
HOA said July 1, so 30 days is fine
Ms. Hester:
o Fine with 30 days
Mr. Ochs:
o That provision in their Findings was written to be consistent with Findings as they
proposed them.
Not sure they could do irrigation in 30 days
Need As -Built
Get plans and submit to Staff
Work through any proposed changes
Not sure capable of doing it within 30 days
Everything they agreed to in their Findings could have been done in 30
days
With some votes, that has changed
If they do not appeal, they anticipate moving forward promptly on the
repairs
Probably the irrigation and street could not be done in 30 days
Mr. Buschmann:
o Their biggest concern expressed in their Findings was wanting an end date after two
years
Ms. Hester:
o Suggested they go with the July 1 date
Mr. Ochs:
o Assuming there is no appeal, the July 1 date would be acceptable
o If they move forward with planting, one caveat would be to not plant trees or bushes in
July
Plantings subject to product availability
Mr. Buschmann:
o That is acceptable to HOA
Mr. Molitor:
o Believed that would still require a vote on 6C
Perhaps from Pulte Findings in mixture with HOA Findings
There was no Determination by Director
Vote needed to cover issue of 6C
Mr. Buschmann:
o Did not have a Findings on Pulte's Issue 6C
Page 22 of 25
Carmel Board of Zoning Appeals
April 23, 2012
o HOA used July 1 in each of their Findings
Mr. Ochs:
o Board did not have to follow ballot
Could make a motion based on discussion
Mr. Molitor:
o Perhaps Pulte would like to make a motion that their Findings be adopted subject to Mr.
Buschmann's concurrence
Mr. Ochs:
o Requested Pulte Findings be adopted
Mr. Buschmann:
o If Pulte Findings are amended to July 1, they agree
Ms. Hester:
o Agreed
Mr. Molitor:
o Vote would be on suggestion made by Pulte
Mr. Ochs:
o Vote would be based on request made by Pulte that absent an appeal, all work would be
completed by July 1 with caveats for availability of specific plant materials and planting
during high heat months
Mr. Buschmann:
o Clarified July I, 2012
Mr. Ochs:
o Agreed
Mr. Hawkins:
o Vote will be to uphold Pulte's Findings on 6C and as stipulate
Results 6C: 5 Upheld Pulte's Appeal (5 d [stipulation already made])
Item 6A Plumbing vent height:
Mr. Molitor:
o Photo documentation does not include anything for 6 A, B, or D
o 6A is HOA appeal with regard to plumbing vent height
Photos were in original submission
Mr. Potasnik:
o Since Director made no Determination on Findings, the Ballot says "Director's
determination should be AFFIRMED..."
Mr. Molitor:
o Affirming the Director's Determination means that nothing needs to be done
Ms. Hester:
o Those are not Zoning issues, so were not addressed in Director's Determination
Their proposed Findings state that
Results 6A: 5 Affirmed Director's Determination (2 a, 2 b, 2 c [not Zoning/BZA issue])
Page 23 of 25
Carmel Board of Zoning Appeals
April 23, 2012
Item 6 B: Roof drainage
Mr. Molitor:
o This was appealed by HOA because Director did not make a determination about roof
drainage
Results 6B: 5 Affirmed Director's Determination (4 a, 3 b [not relevant to BZA])
Item 6 D: Performance bonds
The Director made no finding on the Association's complaint regarding the status of three performance
bonds, as a result, there is no appeal of an administrative determination to consider. The Board is
empowered to hear only zoning disputes. The Board has no jurisdiction to hear the status about
performance bonds. (from Pulte's Proposed Findings)
Mr. Molitor:
o Suggested Board ask for further explanation of Director's position
Pulte felt it was an issue
Director and HOA did not address it
Mr. Buschmann:
o In each of their Findings, they basically said it was at discretion of the City
It was not within the Board's authority to direct the City
Ms. Hester:
o The appeal was made on the determination of the Director
It did not involve the performance bonds
It may enter into some decisions later in legal negotiations
Results 6D: 3 Upheld Pulte's Appeal (2 c, 1 d f [Pulte Finding #111])
2 Affirmed Director's Determination (2 a, [not relevant to BZA]) Hawkins, Plavchak
Mr. Molitor:
o Per previous motion, the Board shall take a vote by show of hands on both Docket Nos.
which shall show by reference the preliminary result on each of the 17 issues on which a
vote was taken and would include all the conditions and stipulations that were adopted by
the Board as part of these votes
Only sixteen votes taken; one removed at the beginning of meeting
Motion: On a motion made by Mr. Hawkins and seconded by Mr. Broach:
Hand vote be taken on the preliminary results of the sixteen ballots with the conditions and
stipulations contained therein.
Page 24 of 25
MOTION PASSED UNANIMOUSLY
Vote: Show of hands on::
DOCKET NOS. 11110010 A AND 11110011 A.
MOTION PASSED UNANIMOUSLY
Motion: On a motion made by Mr. Hawkins and seconded by Mr. Broach:
Delegate the announcement of the final vote and Findings of Fact to the Board's counsel.
MOTION PASSED UNANIMOUSLY
Carmel Board of Zoning Appeals
April 23, 2012
Mr. Molitor:
o Intended to consult with each attorney involved where the Board voted in favor of their
position on the issues
Did not promise to incorporate their suggestions, but will seek them out
7 -8. (V, UV) North Augusta, Lot 4 Retail Use. WITHDRAWN ON VOTE BY BOARD
The applicant seeks the following use variance development standards variance approvals:
Docket No. 11120010 UV ZO Chptr. 5.01 23C.03 Permitted Uses in S -1 district.
Docket No. 11120011 V ZO Chptr. 27.03 No parking lot curbing.
The site is located at 9799 N. Michigan Rd. It is zoned S -1 /Residence, located within the US
421/Michigan Rd. Overlay Zone. Filed by Christine Jones.
Adjournment
Motion: On a motion made by Earlene Plavchak and seconded by James Hawkins:
The Meeting be adjourned.
The meeting adjourned at 9:43 PM.
Approved this q4 day of 20
resident James R. Hawkins
Page 25 of 25
MOTION CARRIED UNANIMOUSLY
Secretary Con ie Ti
Filename: 20120423.doc