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HomeMy WebLinkAboutFindings of Fact • IN THE CARMEL BOARD OF ZONING APPEALS IN RE THE SEPARATE APPEALS ) FILED IN RESPECT TO THE OCTOBER ) 28, 2011, DETERMINATION BY ) THE DIRECTOR OF COMMUNITY ) SERVICES OF THE CITY OF CARMEL ) Docket No...11110010 A REGARDING THE TRAD.ITIONS°ON ) Docket No. 11110011 A THE MONON PLANNED UNIT ) DEVELOPMENT DISTRICT AND ) THE CARMEL ZONING ORDINANCE ) ) DECISION OF APRIL 23, 2012 Having heard the separate appeals as filed by the Traditions on the Monon Homeowners Association (the "Homeowners") and the Pulte Group("Pulte") and having reviewed the several, tabulated provisions of the October 28, 2011, Determination (the"Determination") by the City of Carmel Director of Community Services ("Director"), the Board hereby makes the following decision regarding both of these appeals, pursuant to Indiana Code 36-7-4-918.1, which decision affirms in part and reverses in part the Determination as herein provided. FINDINGS In'accordance with the Carmel Zoning Ordinance (the "ZO") and Ordinance No. Z-464- 04 (the "PUD"),the Board hereby makes the following conclusions and findings of fact regarding the respective provisions of the Determination as set forth below: 1 A Paragraph 1.A of Determination. The Board AFFIRMS the Director's order that Pulte shall install approximately one hundred sixty (160) feet of curb along the sides of the eastern part of the lot, according to the standards of the Department of Engineering. There was no specific appeal of Paragraph 1.A by either appellant. The curb installation has been completed. A Paragraph 1.B of Determination. The Board AFFIRMS the Director's order that no street light is required in the new parking lot area constructed by Pulte. The Homeowners appealed Paragraph 1.B on the grounds that "street lighting shall be provided::near intersections of streets and alleyways." Neither the ZO nor the PUD requires a street light in the new parking lot area. The parking lot is not an intersection and there are street lights shown on the Site Plan that are near the intersections of streets and alleyways. A Paragraph 1.0 Of Determination. The Board AFFIRMS the Director's order that an additional overflow curb adjacent-to the retaining wall shall not be required. The Homeowners appealed Paragraph 1.0 on the grounds that water drains behind the retaining wall and that an independent engineering review of the design is required to assess and ensure the integrity of the retaining wall. The Director found that an additional . overflow curb would not result in an improvement to the drainage design. Furthermore, the Board rules that a request for an independent engineering review of a design is not a proper ground for an appeal. A Paragraph 1.D of Determination. The Board AFFIRMS the Director's order that the guard rail design must be completed, including installation of additional segments of missing rail material, with approximately eight (8) boards, and that an additional coating of black paint shall be applied to the railing already in existence, with additional paint required for the newer sections. The Homeowners appealed Paragraph 1.D to seek confirmation that timber is approved guard rail material. The use of timber for guard rail material is'not prohibited by the ZO nor the PUD and, therefore, the Board rules that it is not a not proper ground for an appeal. However, Pulte`has applied the additional coat.of.black paint. The addition of the eight (8)boards has not yet been completed by Pulte. Paragraph 2.Aof Determination. The Board REVERSES the Director's order that the repair of 20 remaining cracks in the curbing identified and categorized by the City Engineer shall be performed by Pulte according to the standards of the Carmel Department of Engineering in order to address the longevity of the improvement and for proper conveyance of storm water. The Board upholds Pulte's appeal, finding that the curbing was properly installed, and that cracking is normal for concrete. Moreover, the curbing that has cracked was installed more than three (3) years prior to the complaints by the Homeowners, which exceeds the maintenance obligation period that would ordinarily be imposed on the developer of a project that contained public streets and curbs pursuant to the ZO and the Carmel Subdivision Control Ordinance. 2 A Paragraph 2.B of.Determination. The Board AFFIRMS the.Director's order that the addition of more pavement in the area of Building 7 shall not be required because the finish asphalt has been installed throughout the project and the addition of more pavement in the area of-Building_7 will likely have a negative effect on drainage in the area. The Board likewise AFFIRMS the Director's order that the driveway pad to each unit in Building 7 shall be reinstalled so the concrete is flush with the asphalt pavement of the drive lane, and,new concrete driveways shall be poured to be flush with the existing finish asphalt: the Board finds that the concrete drives for Building 7 have been improperly installed with a finished grade approximately 1" above finished pavement, and the edges.of the drives have extensive damage as"a result of the installation issue, demonstrating the:,consequences of the poor construction Finally, the Board AFFIRMS the Director's order that,Pulte shall repair the areas between the concrete drives and the top Of asphalt in the area of Buildings 14 and 15 by either milling of the existing asphalt and the laying of new asphalt to the level of the drive, orthrough reconstruction as required above with.respect to Building 7. The offset between the concrete drive and top • Of asphalt, shown particularly by the growth of moss between the drives and the asphalt, • indicates that moisture is being held in that area rather than being shed. It is an elementary principal of engineering that the freezing and thawing that occurs in such a situation in Indiana compromises the integrity of the drives and pavement. These conditions are not in existence in the other drive areas throughout the subdivision. The Site Plans and Construction`Plans do not show the conditions reflected on the drives and pavements at.Buildings 7, 14;and 15, and the Director has the authority to enforce the Site Plans and Construction Plans in order to avoid the negative consequences now being experienced in those areas. • A Paragraph 2.0 of Determination. The Board REVERSES the Director's order that the pavement design at the ends of drive lanes in four (4);locations identified by the Homeowners is per the approved plan for the project, and:that installation of curbs shall not be required as they. would have a detrimental effect on drainage. The Board further REVERSES the Director's order that the pavement/turf transition in those four (4) locations:shall be improved,by establishing a uniform clean, defined edge of pavement, and through careful establishment of turf,including proper soil preparation, removal of stones, placement of additional top soil as necessary,seed application: and mulching with clean straw. The Board upholds Pulte's appeal, finding that the curbs were constructed pursuant to plans•approved by the City. A Paragraph-3.A of Determination. The Board AFFIRMS the Director's order that Pulte Shall, for'the area between Building 7 and Building 20, provide a coinprehiensive re- nseeding effort, including proper soil preparation, seeding and straw mulch application. Therewas no appeal of Paragraph 3.A.The Board finds that Pulte has improved the area noted in Paragraph 3.-A and that Pulte shall continue its efforts in that area. A Paragraph 3.B'of Determination. The Board AFFIRMS the Director's order that Pulte -shall provide a comprehensive re-seeding for the following five (5) areas: the area 3 surrounding the new parking lot adjacent to Building 9; the common area in the southeast corner of the traffic circle between Building 14 and Building 15; the lawn area along the eastern side of the subdivision, especially the common area east of Building 14;the end area between Building 16 and Building 17; and the end area between Building 18 and Building 23. There was no appeal of Paragraph 3.B. The Board finds that Pulte has improved the areas noted in this Paragraph 3.B and that Pulte shall continue its efforts in that area. A Paragraph 3.0 of Determination. The Board AFFIRMS the Director's order that Pulte shall install replacement sod in areas where it was previously installed and failed during the dry summer months. There was no appeal of Paragraph 3.C. The Board finds that Pulte has improved the areas noted in Paragraph 3.0 and that Pulte shall continue its efforts in those areas. A Paragraph 3.D of Determination. The Board AFFIRMS the Director's order that Puke shall not be required to repair any backfill and/or sod issue with regard to the North Retaining Wall because portions of the North Retaining Wall were reconstructed to correct outward shifting and that "backfill and sod issues" were unidentifiable upon inspection. Furthermore, the Board examined plans C3.9 and C3.10 in Pulte's submission to the Board and finds that the Wall was constructed to plan. A Paragraph 3.E of Determination. The Board AFFIRMS the Director's order that Pulte shall repair the East Retaining Wall cap row stones,pursuant to a pre-repair inspection by the City of Carmel and Pulte, and cap stones should be re-adhered by Pulte per the manufacturer's specifications. There was no appeal of Paragraph 3.E. A Paragraph 4.A of Determination. The Board AFFIRMS the.Director's order that Pulte shall replace missing or dead driveway plant Mate-dal for all buildings, wlicl °shall include replanting or replacement of material noted as improperly installed, in accordance with the chart contained in Paragraph 4.A. There was no appeal of Paragraph 4.A. The Board finds that Pulte has completed the replacement ordered except for the.following: 1 yew at Building 4, 1 yew at Building 5, 3 yews at•Building 8, 1 yevv at Building 10, and 1 yew at Building 18. A Paragraph 4.B of Determination. The Board AFFIRMS the Director's order that Pulte shall replace.missing and dead plant material in the foundation landscaping which was installed during the construction ih 2009 or later of Buildings 23, 17, 16, 15, 14, and 13, and further, that Pulte shall replace missing and dead plan material installed adjacent to the three (3) buildings constructed without irrigation systems (Buildings 7, 11, and 20). The Board finds that Pulte has not completed any of the replacements ordered. 4 9t A Paragraph 4.0 of Determination. The Board REVERSES,the Director's order that P.ulte shall replace various'missing and dead plant materials in the Common Area landscaping, and upholds Pulte's appeal. The Board finds that it was not demonstrated when or how the respective plants were damaged, and that Pulte cannot be held responsible for improper maintenance or for damage from vehicles striking these plants. A Paragraph 4.D of Determination. The Board REVERSES the Director's order that the problems caused by the"volcano mulch"practice, which builds up a high level of mulch around the trunk,of a shade tree and encourages insects and moisture related maladies, should be jointly repaired by the Homeowners and Pulte. The Board upholds Pulte's appeal, finding that over-mulching is a maintenance issue and is thus the Homeowners' responsibility pursuant to the PUD. A Paragraph.4.E of Determination. The Board AFFIRMS the Director's order that Pulte shall backfill and restore all mulch bed areas where a repair need exists, including correction of all remnants of pipe removal which were left unfinished, and the correction of erosion channels, with a level of detail indicating care for a quality outcome. There was no appeal of Paragraph 4.E, and the BOard finds that Pulte has not yet completed the work specified in Paragraph 4.E. Para_raph 5.A of Determination. The Board AFFIRMS the Director's order that Pulte shall install an Irrigation system for the foundation plantings for Building 7, Building 1 1, and Building 20. The installed irrigation system provides coverage for the vast majority of the property;however,:even though irrigation sleeves are already present for Buildings 7, 11, and 20,.the irrigation system has not been installed there and there are no water spigots located on Buildings 7, 11, and 20, which leaves the Homeowners with no ability to use a garden hose-in areas not covered by the irrigation system nor to maintain the landscaping. A Paragraph 5.B of Determination. The Board AFFIRMS the.Director's order that Pulte shall update the Irrigation As-Built drawing to include the overflow parking areas, the irrigation adjustments, and missing zones. A Paragraph 5.0 of Determination. The Board AFFIRMS the Director's order that the Irrigation As-Built drawing will need no amendment (pursuant to Paragraph 5.B) if Pulte installs the irrigation system (pursuant to Paragraph°5.A) in the existing sleeves for Buildings 7; 11; and 20 in order to provide irrigation for the foundation planting beds for those three (3) buildings. However,the Board finds that the Irrigation As-Built drawing must be reviewed and approved by the Director prior to the installation of these irrigation facilities by Pulte. 5 A Item 6.A as considered by the Board. The Board DENIES the Homeowners'complaints regarding building defects, specifically plumbing vent heights, finding that the Director made no finding on this issue and that, in any event,the Board is empowered to hear only zoning disputes and has no jurisdiction to hear complaints about alleged building defects. A Item 6.B as considered by the Board. The Board DENIES the Homeowners' complaints regarding alleged poor construction/design of gutters and downspouts, finding that the Director made no finding on this issue and that, in any event, the Board is empowered to hear only zoning disputes and has no jurisdiction to hear complaints about alleged building defects. . A Item 6.0 as considered by the Board. The Board hereby determines that Pulte shall have until July 1., 2012, to complete all repairs ordered herein. At the conclusion of the repair period, the Director shall report to the Board regarding the status of the completion of the repairs ordered herein. A Item.6.D as considered by the Board. The Board DENIES the Homeowners'complaints regarding the status of three(3)performance bonds, finding that the Director made no finding on this issue and that, in any event, the Board is.empowered to hear only zoning disputes and has no jurisdiction to hear complaints about the status of performance bonds. Filed in the Office of the Carmel Board of Zoning Appeals this day of August, 2012. / , I nes R. Hawkins Chairperson ATTEST: • afri.... Connie Tingley • Secretary 6 • • IN THE CARMEL BOARD OF ZONING APPEALS IN RE THE SEPARATE APPEALS ) FILED IN RESPECT TO THE OCTOBER ) 28, 2011, DETERMINATION BY ) THE DIRECTOR OF COMMUNITY ) SERVICES OF THE CITY OF CARMEL ) Docket No...11110010 A REGARDING THE TRAD.ITIONS°ON ) Docket No. 11110011 A THE MONON PLANNED UNIT ) DEVELOPMENT DISTRICT AND ) THE CARMEL ZONING ORDINANCE ) ) DECISION OF APRIL 23, 2012 Having heard the separate appeals as filed by the Traditions on the Monon Homeowners Association (the "Homeowners") and the Pulte Group("Pulte") and having reviewed the several, tabulated provisions of the October 28, 2011, Determination (the"Determination") by the City of Carmel Director of Community Services ("Director"), the Board hereby makes the following decision regarding both of these appeals, pursuant to Indiana Code 36-7-4-918.1, which decision affirms in part and reverses in part the Determination as herein provided. FINDINGS In'accordance with the Carmel Zoning Ordinance (the "ZO") and Ordinance No. Z-464- 04 (the "PUD"),the Board hereby makes the following conclusions and findings of fact regarding the respective provisions of the Determination as set forth below: 1 A Paragraph 1.A of Determination. The Board AFFIRMS the Director's order that Pulte shall install approximately one hundred sixty (160) feet of curb along the sides of the eastern part of the lot, according to the standards of the Department of Engineering. There was no specific appeal of Paragraph 1.A by either appellant. The curb installation has been completed. A Paragraph 1.B of Determination. The Board AFFIRMS the Director's order that no street light is required in the new parking lot area constructed by Pulte. The Homeowners appealed Paragraph 1.B on the grounds that "street lighting shall be provided::near intersections of streets and alleyways." Neither the ZO nor the PUD requires a street light in the new parking lot area. The parking lot is not an intersection and there are street lights shown on the Site Plan that are near the intersections of streets and alleyways. A Paragraph 1.0 Of Determination. The Board AFFIRMS the Director's order that an additional overflow curb adjacent-to the retaining wall shall not be required. The Homeowners appealed Paragraph 1.0 on the grounds that water drains behind the retaining wall and that an independent engineering review of the design is required to assess and ensure the integrity of the retaining wall. The Director found that an additional . overflow curb would not result in an improvement to the drainage design. Furthermore, the Board rules that a request for an independent engineering review of a design is not a proper ground for an appeal. A Paragraph 1.D of Determination. The Board AFFIRMS the Director's order that the guard rail design must be completed, including installation of additional segments of missing rail material, with approximately eight (8) boards, and that an additional coating of black paint shall be applied to the railing already in existence, with additional paint required for the newer sections. The Homeowners appealed Paragraph 1.D to seek confirmation that timber is approved guard rail material. The use of timber for guard rail material is'not prohibited by the ZO nor the PUD and, therefore, the Board rules that it is not a not proper ground for an appeal. However, Pulte`has applied the additional coat.of.black paint. The addition of the eight (8)boards has not yet been completed by Pulte. Paragraph 2.Aof Determination. The Board REVERSES the Director's order that the repair of 20 remaining cracks in the curbing identified and categorized by the City Engineer shall be performed by Pulte according to the standards of the Carmel Department of Engineering in order to address the longevity of the improvement and for proper conveyance of storm water. The Board upholds Pulte's appeal, finding that the curbing was properly installed, and that cracking is normal for concrete. Moreover, the curbing that has cracked was installed more than three (3) years prior to the complaints by the Homeowners, which exceeds the maintenance obligation period that would ordinarily be imposed on the developer of a project that contained public streets and curbs pursuant to the ZO and the Carmel Subdivision Control Ordinance. 2 A Paragraph 2.B of.Determination. The Board AFFIRMS the.Director's order that the addition of more pavement in the area of Building 7 shall not be required because the finish asphalt has been installed throughout the project and the addition of more pavement in the area of-Building_7 will likely have a negative effect on drainage in the area. The Board likewise AFFIRMS the Director's order that the driveway pad to each unit in Building 7 shall be reinstalled so the concrete is flush with the asphalt pavement of the drive lane, and,new concrete driveways shall be poured to be flush with the existing finish asphalt: the Board finds that the concrete drives for Building 7 have been improperly installed with a finished grade approximately 1" above finished pavement, and the edges.of the drives have extensive damage as"a result of the installation issue, demonstrating the:,consequences of the poor construction Finally, the Board AFFIRMS the Director's order that,Pulte shall repair the areas between the concrete drives and the top Of asphalt in the area of Buildings 14 and 15 by either milling of the existing asphalt and the laying of new asphalt to the level of the drive, orthrough reconstruction as required above with.respect to Building 7. The offset between the concrete drive and top • Of asphalt, shown particularly by the growth of moss between the drives and the asphalt, • indicates that moisture is being held in that area rather than being shed. It is an elementary principal of engineering that the freezing and thawing that occurs in such a situation in Indiana compromises the integrity of the drives and pavement. These conditions are not in existence in the other drive areas throughout the subdivision. The Site Plans and Construction`Plans do not show the conditions reflected on the drives and pavements at.Buildings 7, 14;and 15, and the Director has the authority to enforce the Site Plans and Construction Plans in order to avoid the negative consequences now being experienced in those areas. • A Paragraph 2.0 of Determination. The Board REVERSES the Director's order that the pavement design at the ends of drive lanes in four (4);locations identified by the Homeowners is per the approved plan for the project, and:that installation of curbs shall not be required as they. would have a detrimental effect on drainage. The Board further REVERSES the Director's order that the pavement/turf transition in those four (4) locations:shall be improved,by establishing a uniform clean, defined edge of pavement, and through careful establishment of turf,including proper soil preparation, removal of stones, placement of additional top soil as necessary,seed application: and mulching with clean straw. The Board upholds Pulte's appeal, finding that the curbs were constructed pursuant to plans•approved by the City. A Paragraph-3.A of Determination. The Board AFFIRMS the Director's order that Pulte Shall, for'the area between Building 7 and Building 20, provide a coinprehiensive re- nseeding effort, including proper soil preparation, seeding and straw mulch application. Therewas no appeal of Paragraph 3.A.The Board finds that Pulte has improved the area noted in Paragraph 3.-A and that Pulte shall continue its efforts in that area. A Paragraph 3.B'of Determination. The Board AFFIRMS the Director's order that Pulte -shall provide a comprehensive re-seeding for the following five (5) areas: the area 3 surrounding the new parking lot adjacent to Building 9; the common area in the southeast corner of the traffic circle between Building 14 and Building 15; the lawn area along the eastern side of the subdivision, especially the common area east of Building 14;the end area between Building 16 and Building 17; and the end area between Building 18 and Building 23. There was no appeal of Paragraph 3.B. The Board finds that Pulte has improved the areas noted in this Paragraph 3.B and that Pulte shall continue its efforts in that area. A Paragraph 3.0 of Determination. The Board AFFIRMS the Director's order that Pulte shall install replacement sod in areas where it was previously installed and failed during the dry summer months. There was no appeal of Paragraph 3.C. The Board finds that Pulte has improved the areas noted in Paragraph 3.0 and that Pulte shall continue its efforts in those areas. A Paragraph 3.D of Determination. The Board AFFIRMS the Director's order that Puke shall not be required to repair any backfill and/or sod issue with regard to the North Retaining Wall because portions of the North Retaining Wall were reconstructed to correct outward shifting and that "backfill and sod issues" were unidentifiable upon inspection. Furthermore, the Board examined plans C3.9 and C3.10 in Pulte's submission to the Board and finds that the Wall was constructed to plan. A Paragraph 3.E of Determination. The Board AFFIRMS the Director's order that Pulte shall repair the East Retaining Wall cap row stones,pursuant to a pre-repair inspection by the City of Carmel and Pulte, and cap stones should be re-adhered by Pulte per the manufacturer's specifications. There was no appeal of Paragraph 3.E. A Paragraph 4.A of Determination. The Board AFFIRMS the.Director's order that Pulte shall replace missing or dead driveway plant Mate-dal for all buildings, wlicl °shall include replanting or replacement of material noted as improperly installed, in accordance with the chart contained in Paragraph 4.A. There was no appeal of Paragraph 4.A. The Board finds that Pulte has completed the replacement ordered except for the.following: 1 yew at Building 4, 1 yew at Building 5, 3 yews at•Building 8, 1 yevv at Building 10, and 1 yew at Building 18. A Paragraph 4.B of Determination. The Board AFFIRMS the Director's order that Pulte shall replace.missing and dead plant material in the foundation landscaping which was installed during the construction ih 2009 or later of Buildings 23, 17, 16, 15, 14, and 13, and further, that Pulte shall replace missing and dead plan material installed adjacent to the three (3) buildings constructed without irrigation systems (Buildings 7, 11, and 20). The Board finds that Pulte has not completed any of the replacements ordered. 4 9t A Paragraph 4.0 of Determination. The Board REVERSES,the Director's order that P.ulte shall replace various'missing and dead plant materials in the Common Area landscaping, and upholds Pulte's appeal. The Board finds that it was not demonstrated when or how the respective plants were damaged, and that Pulte cannot be held responsible for improper maintenance or for damage from vehicles striking these plants. A Paragraph 4.D of Determination. The Board REVERSES the Director's order that the problems caused by the"volcano mulch"practice, which builds up a high level of mulch around the trunk,of a shade tree and encourages insects and moisture related maladies, should be jointly repaired by the Homeowners and Pulte. The Board upholds Pulte's appeal, finding that over-mulching is a maintenance issue and is thus the Homeowners' responsibility pursuant to the PUD. A Paragraph.4.E of Determination. The Board AFFIRMS the Director's order that Pulte shall backfill and restore all mulch bed areas where a repair need exists, including correction of all remnants of pipe removal which were left unfinished, and the correction of erosion channels, with a level of detail indicating care for a quality outcome. There was no appeal of Paragraph 4.E, and the BOard finds that Pulte has not yet completed the work specified in Paragraph 4.E. Para_raph 5.A of Determination. The Board AFFIRMS the Director's order that Pulte shall install an Irrigation system for the foundation plantings for Building 7, Building 1 1, and Building 20. The installed irrigation system provides coverage for the vast majority of the property;however,:even though irrigation sleeves are already present for Buildings 7, 11, and 20,.the irrigation system has not been installed there and there are no water spigots located on Buildings 7, 11, and 20, which leaves the Homeowners with no ability to use a garden hose-in areas not covered by the irrigation system nor to maintain the landscaping. A Paragraph 5.B of Determination. The Board AFFIRMS the.Director's order that Pulte shall update the Irrigation As-Built drawing to include the overflow parking areas, the irrigation adjustments, and missing zones. A Paragraph 5.0 of Determination. The Board AFFIRMS the Director's order that the Irrigation As-Built drawing will need no amendment (pursuant to Paragraph 5.B) if Pulte installs the irrigation system (pursuant to Paragraph°5.A) in the existing sleeves for Buildings 7; 11; and 20 in order to provide irrigation for the foundation planting beds for those three (3) buildings. However,the Board finds that the Irrigation As-Built drawing must be reviewed and approved by the Director prior to the installation of these irrigation facilities by Pulte. 5 A Item 6.A as considered by the Board. The Board DENIES the Homeowners'complaints regarding building defects, specifically plumbing vent heights, finding that the Director made no finding on this issue and that, in any event,the Board is empowered to hear only zoning disputes and has no jurisdiction to hear complaints about alleged building defects. A Item 6.B as considered by the Board. The Board DENIES the Homeowners' complaints regarding alleged poor construction/design of gutters and downspouts, finding that the Director made no finding on this issue and that, in any event, the Board is empowered to hear only zoning disputes and has no jurisdiction to hear complaints about alleged building defects. . A Item 6.0 as considered by the Board. The Board hereby determines that Pulte shall have until July 1., 2012, to complete all repairs ordered herein. At the conclusion of the repair period, the Director shall report to the Board regarding the status of the completion of the repairs ordered herein. A Item.6.D as considered by the Board. The Board DENIES the Homeowners'complaints regarding the status of three(3)performance bonds, finding that the Director made no finding on this issue and that, in any event, the Board is.empowered to hear only zoning disputes and has no jurisdiction to hear complaints about the status of performance bonds. Filed in the Office of the Carmel Board of Zoning Appeals this day of August, 2012. / , I nes R. Hawkins Chairperson ATTEST: • afri.... Connie Tingley • Secretary 6 •