HomeMy WebLinkAboutMinutes BZA 08-27-01
City of Carmel
BOARD OF ZONING APPEALS
August 27, 2001
The regularly scheduled meeting of the Board of Zoning Appeals met August 27, 2001 in the
Council Chambers of City Hall, One Civic Square, Carmel, Indiana, at 7:00 PM.
Members Present were: Leo Dierckman; Michael Mohr; Earlene Plavchak; Pat Rice; and Charles
Weinkauf.
Department Staff in Attendance: Laurence Lillig, Jon Dobosiewicz; and Adrienne Keeling, Code
Enforcement Officer. John Molitor, Counsel, was also present.
The minutes of the July meeting were approved as submitted.
John Molitor reported that an Executive Session was held at 6:30 PM in the Caucus Room to
discuss pending litigation. Several items tabled are related to an Ordinance currently before the
City Council; this includes item 2i., Lakes at Hazel Dell Section 1.
Laurence Lillig reported the following items as TABLED: 1h through 9h for Lakes at Hazel Dell;
items 15-17h, Shell Station; 18h, Hazel Dell Corner, Lot 4; 2i., Lakes at Hazel Dell Section 1,
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Common Area 3; and 3i, East 96 Street Auto Park, Lots 1,3 – Tom Wood Volkswagen, sent to the
Plan Commission Special Study Committee for review.
H. Public Hearing:
Donatos Pizza (V-66-01; V-67-01; V-68-01)
10-12h.
Petitioner seeks Developmental Standards Variances of the following Sections of the
Sign Ordinance:
25.7.01-2: Traffic Directional Sign 5-square-foot directional sign
25.7.02-8(b): Number & Type 2 Identification Signs
25.7.02-8(b): Number & Type 2 wall signs on the east façade
The site is located at 1422 Keystone Way East. The site is zoned B-8/Business and is
located partially within the SR 431/Keystone Avenue Overlay Zone.
Filed by Kevin J. Cavanaugh of Kevin J. Cavanaugh, & Associates for Donatos Pizzeria
Corp.
Kevin Cavanaugh, 7705 Andrew Pass, Plainfield, appeared before the Board representing
Donatos Pizzeria, assisted by Donatos Board Member Jeff Pruder, 9243 Waterfall Glen Court.
The overall plan was reviewed by the Special Study Committee of the Plan Commission and was
approved by the full Commission with some modifications. The existing building is located at
1422 Keystone Way East, and is partially with the SR 431/Keystone Avenue Overlay Zone.
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The petitioner is requesting permission to allow a four-square-foot directional sign. The sign is
used nationally throughout Donatos system and is a standard size, not typically alterable in their
manufacturing process from their vendors.
The oval wall sign is again a standard sign used by Donatos, approximately 16 square feet,
located on the tower of the building. The individual lettered, fascia sign was modified to a
back-lit sign. The petitioner states that these variances will not adversely affect the area
properties, in fact, it is believed that the new facility would actually enhance the area properties.
The access to this site is not readily apparent from the major traffic ways of Keystone and is
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sheltered from 116 Street by buildings on the north and south sides as well as the west side, the
rear of the site. The signs will better secure the business success of this facility. The total
square footage allowable is 35; the combination of the two signs being requested is
approximately 32 square feet.
Members of the public were invited to speak in favor or opposition to these petitions; no one
appeared and the public hearing was closed.
Department Report, Laurence Lillig. The Department is recommending negative consideration
of Docket No. V-66-01, V-67-01 and V-68-01. In the case of the traffic directional sign, no
practical difficulty has been shown that would necessitate a four square foot sign versus a three
square foot sign that is allowed by Ordinance. Allowing two identification signs where any
other business would be permitted a single identification sign would allow this petitioner a right
that is not generally allowed to other businesses in the community.
Ms. Rice said she did not have a problem with the oval sign and looked at it as a logo, but not
two separate signs. As far as the directional signs, there does not appear to be a necessity for
having them larger.
Charles Weinkauf did not see any practical difficulty with the production of a three-square-foot
directional sign as opposed to the four-square-foot sign. Mr. Cavanaugh could not guarantee
that the sign could not be produced in a three-square-foot size—only that the four-square-foot
size is their standard and to reproduce in a three-square-foot size would increase the cost and
degree of difficulty in obtaining the sign.
Laurence Lillig commented that the term “practical difficulty” is applied to the property—there
must be some difficulty with the property that prohibits the petitioner from being able to meet the
ordinance requirements.
Leo Dierckman asked about the amount of illumination from the oval sign. Mr. Cavanaugh said
the sign is internally illuminated using florescent tubing, electrical load 2.4 amps. Mr.
Dierckman did not want the sign to appear as a “beacon.” If the sign is determined to be too
bright, Mr. Cavanaugh committed to tone down the sign if and when requested to do so.
Michael Mohr would rather the sign not be illuminated at all and he did not care for the red.
Mr. Cavanaugh said the red border is not illuminated.
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V-66-01
Leo Dierckman moved for the approval of , 4 square foot directional sign for Donatos,
seconded by Earlene Plavchak. The vote was 1 in favor 4 opposed (Mohr, Plavchak, Rice,
MOTION DENIED
Weinkauf.) .
V-67-01
Pat Rice moved for the approval of , 2 Identification Signs for Donatos, seconded by
MOTION APPROVED
Leo Dierckman. The vote was 5 in favor none opposed.
V-68-01
Leo Dierckman moved for the approval of , two wall signs on the east façade of
. MOTION
Donatos, seconded by Pat RiceThe vote was 5in favor none opposed.
APPROVED
Crooked Stick Estates, Section 2, Lot 44 (V-90-01; V-91-01)
13-14h.
Petitioner seeks Developmental Standards Variances of Sections 5.3.1 and 25.1.2 in order
to construct an accessory structure within three (3) feet of the east lot line and forward of
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the principal structure. The site is located at 1801 West 116 Street. The site is zoned
S-1/Residence – Very Low Density.
Filed by Blake Lee Neubauer.
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Blake Lee Neubauer, 1801 West 116 Street, Carmel appeared before the Board requesting a
zoning variance to construct an accessory structure. Mr. Neubauer submitted a letter of Support
from immediate neighbors submitted.
The plans were submitted to the Crooked Stick Owners Association last year and approved
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December 18; the plans have also been reviewed by the Technical Advisory Committee. The
property has two septic fields that make it impossible to either construct a driveway or to locate
the structure anywhere else on the property. Given the existing structures and features, the only
logical site is the one proposed.
A variance is requested for a 3 foot sideyard, and the accessory building that is forward of the
principal residence. Mr. Neubauer stated that his next door neighbor, Mr. Irsay, has three
structures on his property; one is a guardhouse, a utility structure, and a garage. These three
structures do project forward from the principal residence.
Mr. Neubauer submitted a photograph with a ten-foot masonry wall in the background that will
have minimal impact on the neighbors to the east. The garage door will not be evident from the
street view. The west elevation shows the masonry and trim detail that blend with the existing
structure.
The landscaping plan necessitated moving several trees, some of which are Bradford Pear and
some evergreen trees. The proposed, detached garage is located in an area that is free of
existing structures and septic fields. The design and execution of the proposed structure will
replicate the existing style and features. The garage will be landscaped so that it blends garage
with the existing topography and the foliage. There is minimal, visual impact to the neighbors.
Mr. Neubauer displayed samples of the proposed building materials, bricks and shingles.
Members of the public were invited to speak in favor or opposition to these petitions; no one
appeared and the public hearing was closed.
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Department Report, Laurence Lillig. The Department is recommending negative consideration
of V-90-01 and V-91-01, given the Findings of Fact expressed in the Department Report.
In response to questions from Laurence Lillig, Mr. Neubauer pointed out the trees that will be
moved to the front of the property and where new trees will be planted.
V-90-01
Pat Rice moved for the approval of to allow an accessory structure within three feet of
APPROVED
the lot line, seconded by Earlene Plavchak. 5-0.
V-91-01
Michael Mohr moved for the approval of to allow an accessory structure to be placed
APPROVED
forward of the principal structure, seconded by Leo Dierckman. 5-0.
I. Old Business.
Moehl Residence (V-55-01)
1i.
Petitioner seeks a Developmental Standards Variance of Section 2.4: Lots in order to
build on a parcel with 23.89± feet of frontage on a public street. The site is located at
1866 Valley Drive. The site is zoned R-1/Residence.
Filed by Timothy F. Moehl.
Gordon Byers, attorney, Noblesville, appeared before the Board representing the petitioner and
assisted by Tim Moehl; Heather Moehl was also present. The petitioner is attempting to
construct a single family home on the subject site.
The lot was created by metes and bounds, probably in the 1950’s, and pre-dated the zoning
Ordinance. This is a non-conforming lot, and by definition, with land, its shape exists and
nothing can be done to change that. The Subdivision Ordinance requires reasonable, public
frontage on a public way. The Department has interpreted the Subdivision Ordinance and has
come up with 50 feet, deemed to be reasonable public access. In most of the Subdivisions, 50
feet is road right-of-way and the actual road size is typically 28 feet. The 50 feet provides for
drainage easements, sidewalks, utility easements, etc., but the physical road is 28 feet. This
particular tract has an issue—it does not have the full 50 feet at the cul-de-sac
The history of this Subdivision is that the first developer went under and Al Hughey stepped in
and completed the Subdivision. The Subdivision immediately to the west was completed in
February, 1950; this particular Subdivision was done in the 80’s. A public road was created to
mirror the existing road that had functioned since the 30’s and 40’s in providing ingress and
egress. This was done by public way, Valley Drive, and created a “hammerhead” cul-de-sac and
made it a public road. They did not create a full cul-de-sac because to do that would have
required condemning property from the property owner. If the traditional cul-de-sac would
have gone in when it went through Technical Advisory Committee, there would not be a
dilemma with this lot. Since the cul-de-sac is a hammerhead and because the property was not
condemned and the arch completed, there is approximately 24 feet of ingress and egress. Again,
the Department deems reasonable public access to be 50 feet.
The variances from the requirement, the interpretation and subdivision ordinance of 50 feet, is a
developmental standards variance and is 24 feet. Mr. Byers said 24 feet is adequate for
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reasonable ingress and egress to this lot and it does not create a dangerous situation—24 feet
satisfies the intent of the Ordinance.
This situation is a necessity for a practical difficulty.
A tree inventory was done of every tree 5 feet tall and 4 inches in diameter and upward. The
petitioner is willing to commit to preserve substantially all of the trees depicted on the tree
survey. Eventually, Mr. and Mrs. Moehl plan to construct an additional garage, and that may
necessitate the removal of a few trees. Substantially, all other trees on the north perimeter, on
the front perimeter, and trees of any character will be preserved. The footprint of the house,
total living space of 3,000 square feet, is a substantially significant, architecturally designed
house, full basement, and a large investment by the Moehls. The trees will be removed where
the house will sit, so there will be no more tree cutting except for the construction of an
additional garage at some future date. There are several other homes in this area that have this
same problem. In the immediate vicinity, there are 12 other homes existing that have this same
issue. The lot to the north is heavily wooded, and the visual impact will not be affected.
Members of the public were invited to speak in opposition to the petition; the following
appeared:
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Taggart Birge, attorney, 600 East 96 Street, Indianapolis, appeared before the Board
representing Joann Phillips and members of the of Bailey Hamilton Highland Subdivision. 5
persons in the audience stood in opposition. Mr. Birge said the undeveloped lots were originally
deeded to adjacent property owners in their entirety since the 1950’s until the mid 1990’s. The
lots were deeded to Joann Phillips at the time a road was proposed to be located on the eastern
edge of the properties going north/south. That road was denied and at that time, the developer
conveyed a metes and bounds description to the property owners. In 1996, James Mathers
subdivided the lot in question by conveying the eastern portion to Greg Mathers. When
originally conveyed to Greg Mathers, Greg knew he could not build on the lot so he attempted to
obtain additional right-of-way from the property owner to the south, Carol Hiatt, in attendance
this evening.
The members of the Bailey Hamilton Highland Subdivision have understood for 45 years that the
subject lot could not be developed upon unless they could obtain additional right-of-way.
Accordingly, Mr. Mathers repeatedly tried to get additional right-of-way, but the neighbors had
no interest in changing the nature and character of their area and denied those requests. Shortly
thereafter, the ground was sold to Timothy and Heather Moehl. If Mr. Moehl was not aware
that a variance was needed, it should have been disclosed to him by Mr. Mathers.
The petitioner is requesting a variance from section 2.4 of the Zoning Ordinance which is
adequate frontage on a publicly dedicated street. The petitioner has 23.89 feet of frontage.
Section 6.5.1 of the Subdivision Ordinance states that a minimum frontage of street right-of-way
of 50 feet is required. In addition, the subdivision requirements, section 7.12, state that the
maximum deviation for a dimensional requirement that would include street frontage is 35%.
Modification greater than 52% is being asked in order to allow the 23.89 frontage to meet the
requirement. The remonstrators have worked with Mr. Moehl for a solution and that proposal is
to re-purchase the property. Mr. Birge submitted an appraisal to the Board referring to the
property as an “undevelopable” lot. Joann Phillips has made an offer to the Moehls to purchase
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the lot for an amount $10,000 greater than the appraised value. Mrs. Phillips is also willing to
make commitments that when purchased, the property will not be developed and that is
consistent with the way the property has been for 45 years and the understanding of the
neighbors in the Bailey Hamilton Highland Subdivision. A purchase price was not offered at a
developable market price because the lot is not developable. In Mr. Birge’s opinion and his
clients, developing this lot will harm the adjacent property owners—developing this lot will
completely change the character of the area. Mr. Birge urged the Board not to grant the
Variance; the Ordinances are in place for a reason, and the character and nature of the
neighborhood should be maintained as it has been for 40 years.
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Carol Hiatt, 1510 East 106 Street, Lot 12, said she was approached by Mr. Mathers to sell part
of her land. Mr. Mathers said he wanted to build a house, and the Hiatts refused to sell. Ms.
Hiatt said they purchased their home with the assurance from a realtor that this ground would
“never be developed.” The Hiatts were told the lots could not be divided and a home could not
be built. Ms. Hiatt said the construction of a home would disrupt wildlife and destroy her view
of trees and woods.
Joann Phillips, 10655 Highland Drive, said many trees have been removed on the proposed home
site. When winter comes, the view will be only of the home and not the woods. When Ms.
Phillips purchased her property, she was told that nothing could be built on the subject property.
Robert Jiglum, 10699 Highland Drive, confirmed that the property along the border was for a
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drive to come out onto 106 Street, and this was denied. Chester Bailey, developer, gave the
property to the property owners on Highland Drive. There have been other efforts to break up
property, and the residents, most of whom are the original purchasers, do not want to see this
ground developed.
Lewis Phillips, 10655 Highland Drive, wanted to challenge the understanding that any existing
trees on the northern boundary of Mr. Moehl’s lot would, in effect, block the view of the home.
Mr. Phillips said the construction of the home would definitely have an impact on the view from
the rear of his home. A small stream to the rear of the site has been diverted and a pipe or tile
installed. The stream also passes through Mr. Phillips lot, and this is worthy of mentioning.
Members of the public were invited to speak in favor of the petition; no one appeared and the
public hearing was closed.
Department Comments, Laurence Lillig. The right-of-way was created in the 1920’s as part of
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the Lincoln Highway Estates Subdivision. On the northwest corner of 106 and Westfield
Boulevard, there was a six-lot subdivision platted by the Orrin Jessup Land Company called
Lincoln Highway Estates. In the 1980’s, three of those lots were re-platted as Orchard Estates,
the subdivision south of Valley Drive. It is the plat of Lincoln Highway Estates in the 1920’s
that stubbed the street to the west. When Bailey’s Hamilton Highlands was platted in the 1950’s
this stub was not connected.
The Department is recommending favorable consideration of this petition. This property is a
legal, pre-existing, non-conforming property. As a matter of clarification, Subdivision Control
Ordinance 6.5.1 and 7.12 have no bearing on this lot—this lot was created before those
Ordinances came into being and therefore, the configuration of the lot was not subject to those
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Ordinances at the time it was created. As far as the City can tell, this property was created
legally at the time it was created. Section 6.5.1 specifies a minimum of 50 feet of frontage on a
public street for lots in a platted subdivision. Section 7.12 is completely irrelevant to the entire
discussion—that is a section of the Ordinance that is specific to Residential Open Space
Subdivisions and has no bearing on this Docket in any respect. Section 2.4 of the Zoning
Ordinance stipulates that all properties must have adequate frontage on a public street, but it does
not specify how much frontage that should be. It is the Department that draws the analogy
between that requirement and the Subdivision Control Ordinance and administers adequate
frontage as 50 feet of frontage. If adequate frontage was interpreted to mean 20 feet or 100 feet,
that is how it would have been administered. Tomorrow, or five years ago, if the Department
Director had decided to make an interpretation that adequate frontage meant 20 feet or 100 feet,
that is how it would have been administered. The Developmental Standards request could have
just as easily been filed as an appeal of the Director’s decision for that reason. The 50 feet is
how the Department administers it and that is what they are seeking relief of. However, the
controlling Ordinance is the Zoning Ordinance.
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Tim Moehl, 104 and College, responded to questions from Michael Mohr. Mr. Moehl paid
$45,000 cash for the lot. The neighborhood homeowners offered Mr. Moehl $29,000 for the lot.
Leo Dierckman said he objected to the free-standing garage that is proposed in addition to the
main residence because that is the closest structure to the property line; although it is outside of
the 10-foot side yard. Secondly, there is pavement indicated within the 10-foot side yard and
Mr. Dierckman is not comfortable with that. The third item is a landscape buffer on the south
side starting from the east property line 650 feet to the west. A landscape buffer two trees wide,
perhaps Blue Spruce; elimination of pavement in the 10-foot side yard so that landscape
buffering could be done there; elimination of the free-standing garage, and a commitment that
the residence, as currently outlined, would be the only structure built on the property would
make sense and considered to be progress.
Pat Rice asked Mr. Moehl when he realized he would need a variance on the property and
whether or not the seller informed him of that. Mr. Moehl responded in the negative to both
questions.
Pat Rice also asked if Mr. Moehl would have legal recourse if he were not given the correct
information regarding this piece of property.
Taggart Birge’s opinion was that if Mr. Moehl was given incorrect information and purchased on
the strength of that incorrect information, he would be able to bring a lawsuit for damages—that
he was sold a lot that was not developable.
Mr. Molitor opined that he did not necessarily have all of the facts before rendering an opinion or
advice, but it would seem if someone in that situation were getting advice from Counsel, their
Counsel would probably advise them that they had a possibility of suing either the seller of the
property or the Board of Zoning Appeals for denying the variance. They would not have a
100% chance in either case, but neither would they have zero percent chance. There would
certainly be the possibility of suing the seller for not making appropriate caveat at the time.
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Leo Dierckman asked what the petitioner was willing to do given his three earlier comments, i.e.
the asphalt sideyard, landscape buffer, and the garage.
Gordon Byers responded that Mr. Moehl’s option would be to do a three car garage which would
push the house back closer to the stream and that is felt to be inappropriate. With a house this
size, more than a two car garage is needed, and that would allow him to save the trees and site
the house in that location and not push it farther back. Mr. Moehl would like to have the ability
to have a three-car garage later. This is a young family, and they do not want to make a
commitment that ultimately could affect resale or their use of the property.
Leo Dierckman was in favor of tabling this matter unless the petitioner could describe what will
be included in the 10-foot sidey ard.
Gordon Byers said the petitioner is willing to commit to the planting strip on the south, buffer the
garage, buffer the house, and leave it up to the Department to come up with some kind of
evergreen planting strip as a condition of approval to buffer the house now. If the garage would
be added, the petitioner would also commit to buffer the garage. The petitioner feels he is
leaving this lot natural and committing to the Commission that every tree in existence will be
maintained. In regard to additional landscaping, Leo Dierckman felt that a minimum of four-
foot tall trees, when planted, numbering approximately 40, would be appropriate to create a
buffer for 650 feet. An arborist is on staff that could give input.
Laurence Lillig, clarification: the two properties being referred to on the east end are probably
somewhere between 200 and 225 feet combined width. The total depth of the property in
question is 325 feet.
Earlene Plavchak said the only item to be ruled on by the Board in this case is whether or not this
piece of property is a legal, non-conforming, pre-existing site. If it is determined to be so, the
Board has no choice but to grant a variance. Once that is done, Ms. Plavchak did not feel the
Board had the right to put stipulations on the land owner as to how many trees he puts on it,
whether he constructs an unattached garage on it, or anything else. If the petitioner has the
space to construct an unattached garage, why would this Board put a stipulation on him that we
would not put on anyone else?
Mr. Molitor agreed with Ms. Plavchak, but added that the Board does have some discretion with
regard to commitments exacted from the petitioner, if they decided to grant the variance.
Regarding the landscape buffer, Laurence Lillig said the Plan Commission has adopted
bufferyard guidelines that do set a bufferyard standard between single family properties if the
Board would like to apply that standard. This would also give Scott Brewer something to use
for comparison and evaluation.
Pat Rice asked about a commitment from the petitioner regarding the cutting of trees on the site.
Gordon Byers said the trees that are in place and are over 4 feet tall, except for those removed for
construction of the garage, will be left in place. The petitioner will file the tree inventory and is
willing to commit not to remove any more trees except for the garage addition.
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V-55-01, Moehl Residence
Earlene Plavchak moved for the approval of , seconded by Pat Rice
APPROVED
and 5-0.
Gordon Byers agreed to draft the aforesaid commitments and submit them to John Molitor prior
to any permits being issued.
There being no further business to come before the Board, the meeting was adjourned at 9:30
PM.
__________________________
Charles W. Weinkauf, President
________________________
Ramona Hancock, Secretary
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