HomeMy WebLinkAboutCorrespondence: John Molitor MEMORANDUM
TO: Members, Cannel Board of Zoning Appeals
FROM: John Molitor
Counsel to the BZA
DATE: January 24, 2012
RE: Docket Numbers 11110010 A and 11110011 A (Traditions on the Monon)
—Recommended Suspension of Procedural Rules
Members of the Board Mr. Hollibaugh, Ms. Conn, and I met in a pre-hearing
conference on January 3, 2012, with the respective attorneys for the petitioners in the
above dockets; both of these appeals relate to the Director's interpretation of various
provisions of the City's Planned Unit Development district ordinance that governs the
Traditions on the Monon development. All parties were able to reach consensus as to
proposed recommendations as to how the Board should handle, procedurally, these two
appeals. Both of them are now scheduled to be heard during the Board's regular meeting
of February 27, 2012. In order to provide for a full and fair hearing of both of these
appeals, I am recommending that the Board suspend Article VII, Section 13 of its Rules of
Procedure (which provides the normal procedure to be followed for the holding of a
public hearing)and instead provide for the following procedure in lieu thereof.
Section 13 (Temporary). The procedure to be followed for the holding of public hearings
on Docket Numbers 11110010 A (the "Homeowners Appeal") and 11110011 A (the
"Pulte Appeal") shall be as follows:
(1) The Board shall conduct a joint hearing on both appeals at its regular meeting of
February 27, 2012. Not later than February 1, 2012, the respective attorneys for the
petitioners shall exchange lists of their spokespersons and any witnesses to be called
during the hearing, which shall include the general nature of their expected testimony.
(2) The Chairperson shall officially open the public hearing. A total of
approximately three (3) hours and forty-five (45) minutes shall be allotted for the entire
public hearing. During the hearing, the Chairperson may limit the length of time all
persons may speak or request that repetitious statements by different speakers be avoided
in order to reasonably limit the length of the hearing.
(3) The public hearing shall be divided into six (6) segments of approximately thirty-
five (35) minutes each, to cover the following topics in the following order— (A) Banked
Parking; (B) Streets and Curbs; (C) Landscaping and Grounds; (D) Landscape Audit; (E)
Irrigation System; and (F) Miscellaneous.
(4) The petitioners in the Homeowners Appeal shall make their presentation first in
respect to Topics A, C, and F listed above. The petitioner in the Pulte Appeal shall make
its presentation first in respect to Topics B, D, and E listed above. The Chairperson shall
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allow not more than fifteen (15) minutes for each of these six (6)presentations.
(5) The petitioner in the Pulte Appeal shall make its presentation second in respect
to Topics A, C, and F listed above. The petitioners in the Homeowners Appeal shall make
their presentation second in respect to Topics B, D, and E listed above. The Chairperson
shall allow not more than fifteen (15) minutes for each of these six (6) presentations.
(6) The respondent in both appeals is the Director of the Department of Community
Services (the "Administrator"). The Administrator or his authorized representatives will
be heard third in respect to each of the Topics listed above. The Chairperson shall allow
not more than five (5) minutes for each of the Administrator's responses (if any).
(7) If, at the conclusion of the presentations and responses (if any) in respect to
Topic F, there are additional statements and/or letters from the public in support of or in
opposition to either of the appeals, the Chairperson shall allow not more than fifteen (15)
minutes for all such statements and/or letters to be presented.
(8) During the public hearing, the parties shall have an opportunity promptly to
cross-examine any expert witnesses called by the petitioners concerning their respective
appeals. The time consumed by any cross-examination of witnesses shall not be deducted
from the time allowed by the Chairperson for any party's presentation or response.
(9) During the public hearing, the BZA members shall have an opportunity to
question the petitioners concerning their respective appeals. As deemed necessary,
members may also ask for clarification of points made by witnesses or the public, or may
request a legal opinion from the BZA's counsel regarding any aspect of the appeals.
(10) The Chairperson shall ask if the BZA is ready to proceed to a vote and close the
public hearing. If the members are not ready to proceed to a vote, the Chairperson shall
then ask if the hearing should be continued to a future date. If the hearing is continued to
a future date, the Chairperson may request that either or both petitioners prepare and
submit proposed findings of fact for the members to consider.
(11) At the conclusion of the hearing, a member of the BZA may make an
appropriate motion for disposition of either or both appeals, which must then be seconded
by another member. Any conditions regarding the upholding or denial of an appeal must
be so stated in the motion.
(12) Further discussion may be called for by the BZA. Any amendments to a
pending motion must be made, seconded, discussed and voted on, and the question shall
then be put to the BZA.
(13) Pursuant to Article VIII, Section 5 of the BZA's Rules of Procedure, the BZA
may adopt written findings of fact as submitted by either petitioner or by any interested
party, with or without modifications, specifications, or limitations, or the BZA may
delegate to its counsel the authority to prepare written findings.
cc: Stephen Buschmann, Esq., Counsel for the Homeowners
Timothy Ochs,Esq., Counsel for Pulte
Douglas Haney, Esq., City Attorney
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