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HomeMy WebLinkAboutRemonstrance: Springmill Streams HOA letterTo: Carmel Board of Zoning Appeals Date: March 15, 2013 From: Springmill Streams Homeowners Association, Inc. Board of Directors ( "SMSHA Board ") 8 I ECEIVED MAR 1 5 2013 +SACS 9_ Re: Application for Development Standards Variance dated January 7, 2013 Carmel Clay Advisory Board of Zoning Appeals Docket No 13010008V 1631 W Main Street Carmel IN 4603217 -09 -27 -00-00- 028.000 Petitioners: Andrew and Laurel Schneider ( "Variance Application ") Requested Action for the March 25 Meeting: (1) Because Ms. Plavchak was not present at the February 25th Meeting, and in light of certain potentially misleading statements made by the Petitioner during the Rebuttal and Question /Answer period at the February 25th Meeting (discussed in more detail below), the SMSHA Board respectfully requests that it, and the impacted neighbors in our neighborhood who provided information at the February 25th Meeting, be given the opportunity to address the BZA at the March 25th Meeting to (i) address the BZA with any questions or clarifications that Ms. Plavchak may have, and (ii) correct the record with respect to the potentially misleading statements made by the Petitioner in the Rebuttal and Question /Answer period; (2) The SMHSA Board respectfully requests the opportunity at the March 25th BZA Meeting to address any amendments to the Variance Application submitted by the Petitioner since the February 25th Meeting (if any); (3) The SMSHA Board respectfully requests the opportunity to address the BZA to update the BZA Members on the progress of any negotiations between the Petitioners and the neighbors as recommended by the BZA at the Feburary 25th Meeting; (4) The SMSHA Board understands that Mr. Potasnik is not available for the March 25th Meeting. Because he was an integral part to the discussion and recommendations of the BZA at the February 25th Meeting, the SMSHA Board respectfully requests that the BZA postpone any vote on the Variance Application until the full BZA can be present to vote; and (5) Finally, if the BZA decides to vote without Mr. Potasnik, the SMSHA Board respectfully renews its request that the BZA deny the Variance Application, because the Petitioner has not demonstrated the requisite undue hardship or practical difficulty required by applicable law to obtain a variance from the required 20 foot setback. 1. There Has Been No Showing of Undue Hardship or Practical Difficulty by Petitioners The only limitations or difficulties that have been demonstrated by the Petitioner are those that have been self - imposed by the Petitioners themselves. There are no utility lines, no sewer lines, no drainage Letter to Carmel Board of Zoning Appeals from SMSHA dated March 15, 2013 1 easements, etc or any other hardship or difficulty that requires the home and garage to violate the 20 foot setback set forth in the applicable City Ordinances. • The lot is almost 3 acres in size. There is plenty of space for the Petitioners to move the house and garage northward and /or eastward to meet the 20 foot setback with minimum disruption. • The Petitioners argue that they cannot move the house to another spot on the property, without cutting down two (2) trees at the south end of the tree "allee". The two trees in question are Norway Spruce trees. They can be replaced by planting new trees at the north end of the " allee," and they are only two (2) trees among 45 other mature trees on the property. The Petitioner's "preference" not to cut down these two (2) trees does not constitute an undue hardship or practical difficulty, especially in light of the admitted fact that the Petitioners are perfectly willing to cut down a similarly mature tree to build the master bedroom wing for the new house. • The Petitioners argue that the location of the existing circle driveway prevents them from moving the house or garage northward. However, the circle driveway essentially no longer exists. It has been dug up in the process of demolishing the previously existing house and garage and is now a dirt pathway. Even if the driveway still existed, the current proposed garage plans render the old circle drive unusable, because the new 40' by 25' proposed garage sits on top of the southeastern corner of the circle [See plot plan provided by Petitioners with the Variance Application]. The Petitioners have not demonstrated the requisite undue hardship or practical difficulty required to obtain the variance they are requesting. 2. The Department Report Cannot Be Relied Upon for A Decision Because It Does Not Properly Reflect the Reality of the Site or the Impact to the Neighbors. In the February 25th Meeting, the neighbors provided substantial evidence and information to demonstrate that the Department's Report does not properly reflect the reality of the site or the impact that an approval of this Variance Application would have on the neighbors: • The Department Report references certain "existing physical constraints" that include (i) trees; and the (ii) existing driveway (see discussion above). No other constraints are mentioned. In the February 25th Meeting, the neighbors provided relevant evidence to demonstrate that the only infrastructure still existing on the property is a dirt drive, a small fountain and an old cement block outbuilding. There are no foundations, no basement, no paved drive, no brick and no raised driveway bed on the southern end of the property. • Contrary to the Department Report, the proposed home and garage do not match the "existing footprint" of the old buildings. The new house is approximately twice as large as the previously Letter to Carmel Board of Zoning Appeals from SM5HA dated March 15, 2013 2 existing home and now extends 7 feet into the 20 foot setback. The old, approximately 20' x 20' garage is being replaced with a 40' foot wide, three -car garage that sits one (1) foot from the from the property line. Together, the proposed house and garage represent a combined 75+ feet long, 10+ foot high building, across the back of the impacted neighbors' properties, all of which is in violation of the 20 foot setback requirement. • The report references the legal setback requirements for a "detached" garage, but fails to mention that the new house would (i) need to be 10 feet away from any detached garage, and (ii) also need to meet the 20 foot setback requirement. In this case, neither requirement is met. This reference to a detached garage is misleading, because the proposed garage is an "attached" garage, so the 20 foot setback ordinance applies and should be followed. • The Department Report relies on the utility and drainage easement in the neighbors' yard as a "buffer" for the setback violation. Petitioner should not be permitted to rely on an easement on a neighbor's property to satisfy the Petitioner's own legal obligations. Allowing such reliance would set an unwarranted legal precedent that would undermine the very purpose of the zoning ordinances. In addition, contrary to the Department Report, the neighbors' easement is not a full vegetative barrier, and any trees or vegetation on the neighbor's easement can be removed at any time by the City. • Finally, the Department Report concludes that approving the variance would "not have a negative effect" on the surrounding properties or the community. However, the neighbors and the SMSHA Board respectfully point out that granting this variance would shift to the neighbors the entire burden of preserving the reasonable expectations of privacy that are intended to be promoted by the applicable zoning ordinances. While the improvements will add value to the Schneider property, they do so AT THE EXPENSE of the neighboring properties and thereby HAVE A NEGATIVE EFFECT on the surrounding properties. 3. Potentially Misleading Statements by the Petitioners during Rebuttal The Petitioner and Mr. Garcia made a number of potentially misleading statements during the Rebuttal and Question /Answer period. The following facts are provided to address these statements. The SMSHA Board respectfully requests the opportunity at the March 25th Meeting to address these issues. a) The Original House Was Not in Violation of the 20 Foot Setback Ordinance. When asked by the BZA whether the original home (now demolished) was in violation of the 20 foot setback, we understood Petitioner to imply that the original home was in violation of the setback ordinance. Based on a review of the plot map provided by the Petitioner to the BZA in its application dated January 7, 2013, it is clear that the original home was at least 20 feet back from the property line, well in compliance with the 20 foot setback requirements. [See plot plan submitted by Petitions with the Variance Application.] Letter to Carmel Board of Zoning Appeals from SMSHA dated March 15, 2013 3 b) The Circle Driveway is Neither "Raised" nor Can it Be Reconstructed Under the Current Plan. The Petitioner made a number of statements regarding the importance of retaining the "raised" driveway and being able to reconstruct the circle at the end of the driveway on top of the gravel base. The SMSHA Board respectfully points out: i. The "raised" portion of the driveway ONLY extends about half way into the property from 131g Street. As the drive goes back into the property, it dissipates into a dirt path. The southern portion of the dirt drive adjacent to the proposed home and garage is level with the ground. There is no gravel base infrastructure remaining on which a new driveway would be placed. ii. The current proposed location of the new garage sits directly across the southeast portion of the old circle drive, blocking the completion of the circle. [See plot plan submitted with Petitioner's Variance Application]. Under the plan proposed by the Petitioner, the full circle drive cannot be reconstructed. c) Trees in Tree "Allee" Are Not 150 Years Old. Petitioner stated in its Variance Application, on several occasions throughout his presentation, and in the Rebuttal and Question /Answer period that the "character" of the property was derived in large part from the tree "allee" and the other remaining trees on the property. The Petitioner also stated that the new house cannot be moved northward because it would require the cutting down of two (2) 150 year -old trees in the tree " allee." The SMSHA respectfully points out: • There are at least 18 trees in the tree " allee;" • Based on reliable information, the two Norway Spruces that the Petitioners are unwilling to cut down at the South end of the "allee" are likely between 20 to 30 years old, and are at risk when the basement for the home is dug next to them and destroys their root systems; ▪ There is plenty of space in the north portion of the lot for another two to four (2 -4) more trees that can be added to the " allee" to provide privacy and "character" for the Petitioners, especially if two trees at the south end of the "allee" are cut down or removed; • Alternatively, because the two Norway Spruces that the Petitioners are unwilling to cut down are not the same distance from the south property line, it is possible for the Petitioners to gain an additional 10 -15 feet of space to move the house northward by cutting down only one of the these Spruces (the Spruce closest to the proposed new house). Letter to Carmel Board of Zoning Appeals from SMSHA dated March 15, 2013 4 • Throughout the property there are at least 45 other mature trees (one of which will be cut down to make room for the proposed master bedroom addition); and • There is significant space to the east of the proposed house location into which the house and garage can be shifted, while preserving a majority of the tree "allee" and reasonably preserving the architectural design of the proposed house. Each of the issues that the Petitioner raises regarding the trees and tree "allee" are self - imposed restrictions based on (1) how they want the house to look, (ii) where they want to place the house and garage, and (iii) how big they want their house and garage to be. None of these restrictions constitute undue hardships or practical difficulties like water or utility lines and easements that the variation approval process is designed to address. d) Petitioners Are Not Proposing A Detached Garage. At several points in the Rebuttal and Question /Answer period, members of the BZA and the Petitioners discussed the setback requirements for a "detached" garage. The SMHSA respectfully points out that the Petitioners Application is for an "attached" garage, and no amendments have been made thereto. An "attached" garage is required to meet the 20 foot setback requirement. Even if the garage is "detached ", the home would then (1) need to be at least 10 feet away from the garage and (ii) also 20 feet from the property line to be compliant with the existing requirements for detached garages. 4. Pattern of Misstatements As pointed out in the February 25th Meeting and as supplemented by the information set forth above, the SMSHA Board remains significantly concerned about the "pattern" of inconsistent and potentially misleading statements by the Petitioners and in the Petitioner documents throughout the process. • In the initial communications that the Petitioner provided to the neighbors in January [See January 5 Letter to Neighbors attached to SMSHA Board February 19 Letter to the BZA], the Petitioner made misleading statements about the distance of the house from the property line (Le., the Petitioners letter incorrectly states that the house "will be 23 feet from the property line ") and incorrectly referenced the February hearing date. • In the February 25th Meeting during his presentation, Mr. Schneider made a number of misleading statements about the age of the trees, the existing infrastructure on the site, and the location of the buildings on the sites. The neighbors addressed a number of these statements in the remonstrance period, but the Petitioners made additional misleading statements in the Rebuttal and Question /Answer Period. The SMSHA and the impacted neighbors wish to be good neighbors for the Petitioners, but our neighbors and neighborhood should not be required to shoulder the detrimental impact of the proposed Variance Application, based on a pattern of potentially misleading statements by the Petitioner. Letter to Carmel Board of Zoning Appeals from SMSHA dated March 15, 2013 5 5. Status of Negotiations In the February 25th Meeting, the BZA offered the Petitioners the opportunity to (i) have the Variance Request go to a vote or (ii) go back to the neighbors to work out a possible compromise. The Petitioners chose the option of going back to the neighbors to work out a possible compromise. The Schneiders made initial contact with Mr. Muller of the SMHSA Board by e-mail on Friday, March 8th. Mr. Muller responded on March 9t while traveling. Mr. Schneider and Mr. Muller spoke on the afternoon of Monday, March 11tH In that conversation, Mr. Muller on behalf of the neighbors and the SMSHA Board, directed Mr. Schneider to the offer that the neighbors had sent by e-mail on Sunday, February 24 prior to the February BZA Meeting. In that offer, the neighbors agreed to discuss a reasonable compromise that involves a setback for the garage between 10 -20 feet from the property line, under the assumption that (i) the house would be fully behind the 20 foot setback, and (ii) any compromise on distance of setback would be made up with appropriate permanent vegetative barriers or landscaping. The Petitioners came back to the neighbors late Wednesday evening, March 13 with a proposal whereby the Garage would be moved back to nine (9) feet from the property line, and the house would be moved back from seven (7) feet in the setback to four and one half (4.5) feet into the setback. However, Petitioner would not be willing to cut down any of the trees in the "allee" to move the house further north. As of the date of this communication, the neighbors are reviewing the Petitioner's proposal in more detail but have communicated to Petitioner that they do not believe it meets their previously stated expectations. The SMSHA Board requests, on its own behalf and on behalf of the neighbors, that the BZA provide it an opportunity to provide an update on any negotiations between the parties between the date of this communication and the time of the March BZA Meeting. The neighbors have been more than willing (and have demonstrated that willingness on multiple occasions) to work with the Schneiders to find a reasonable compromise so long as this compromise does not disadvantage their properties. 6. The SMSHA Board Respectfully Renews Its Request That The BZA Reject This Variance Request as It Stands. The SMSHA Board is very much in favor of ensuring that properties within, and bordering, the Springmill Streams neighborhood are properly maintained, meet code and architectural requirements, and follow local applicable zoning requirements. This applies to all new construction, development and improvements. The Board always welcomes new neighbors and any improvements to their properties. However, the SMSHA Board believes that it would not be fair for certain homeowners within the neighborhood to be disadvantaged by zoning variances that would set a new precedent for properties adjoining the neighborhood boundary. Letter to Carmel Board of Zoning Appeals from SMSHA dated March 15, 2013 6 In this instance, while the improvements to the Schneider's property are indeed welcome, and the SMSHA Board understands the time and effort put into the design of the new construction and the request for the variance, the location of the new Home and Garage are in direct violation of the zoning requirements. With only modest changes, the plan could easily be improved to meet the neighbors' reasonable proposals on compromise. Allowing the requested variance in this case would be unfair to the neighboring properties, create an unwarranted precedent for future properties in this area and will likely result in negative economic impact to the adjoining neighbors. If the Board of Zoning Appeals has any question or concerns, it may contact the SMSHA Board through its designated contact for this matter: Michael Muller, Board Member, at 317 - 997 -0752. Sincerely, Springmill Stream Homeowners Association, Inc. 4- - ''.gbi CZ--- Michael J. Muller, on behalf of the SMSHA Board of Directors Letter to Carmel Board of Zoning Appeals from SMSHA dated March 15, 2013 7 ika L-tribV lT l S ` zo l January 5, 2013 Dear Neighbor, We wanted to introduce ourselves as your neighbors to the North. We purchased the property nearly a year ago and are getting ready to build. As we start this process, we wanted to keep you, our neighbors, informed of our plans and progress. We've also included our contact information below - feel free to call us with questions. We've put together the attached document as a quick overview. Some key highlights: House: We purchased the house because we loved the land, the neighborhood and also the house itself. It needed a lot of work but we had hoped we could remodel it back into shape. After meeting with multiple experts, the structure was deemed not usable for rehab and needed to be torn down. We are planning to build a home that looks very similar in style to the prior house and use as much of the original footprint and existing driveway as possible. In addition, we're trying to conserve as many of the mature trees as we can. You'll see a render of the house in the first section of the document. The house will be 3885 square feet and fitting with the value of homes in the area. Placement The new home will be moving a few feet north on the property. The new garage and patio will move North a foot. The front porch will move North by 10f t. Due to the large pines to the North (that we'd like to keep), this is as far north as the house can go. We are also building out to the east by a few feet to e' accommodate a main -level master bedroom. The house will be 23 ft from the property line with a stone courtyard behind (similar to the original brick courtyard). We've included an aerial view of the house to give you a sense for footprint Variance: Carmel building ordinances require properties to be 20ft away from property lines. We've requested a variance from the city of Carmel as our garage will not be 20ft due to existing driveways, prior building footprint and trees. We wanted you to be aware of the variance request as you'll be receiving a notice in the mail that we have applied. Law requires that neighbors be notified of any building variances requested and we didn't want it to catch you buy surprise. We also would like to ask for yoursupport in this variance. Again, our goal is to put our new house in the existing footprint; we are just upgrading the structure. We would appreciate an email of support by WednesdayJanuary llth when our variance application is due. Our contact information is below. Timing. Our variance goes to vote on February 26th by the City of Carmel. Assuming its approval, we begin building in March with anticipated finish in Septeg nued > I of We're so excited to be in this area and surrounded by wonderful neighbors like you. We fell love with the area and were so lucky to find this property and the land. We couldn't ask for a better location to build a house as we build our family. We look forward to being your neighbors and please feel free to contact us with any questions. Thank you for your support. Andrew and Laurie Schneider Andrew Schneider C: 317 - 938 -8718 E: Arid -ew.Schneids( grnai:.corn Laurie Schneider C: 317 -371 -9205 E: L.aureIEjizalheth0209( gmail.cnrn