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HomeMy WebLinkAboutMinutes BZA 1-24-00 A Special Use Variance is being requested to continue operating a three-unit, apartment complex in a residence located at 740 North Rangeline Road. Mr. Wendling gave a history of the property. Last fall, the petitioner had appeared before the Board of Zoning Appeals with a request to convert a two-car garage into a working barber shop. At that time, there were questions from the Board; the Department comments recommended that the proposal be accepted. Ms. Rice asked about an adjoining property and whether or not it was properly zoned, since it was a four-unit apartment complex. The answer at that time was not known, and the item was tabled until the status could be known. Mr. Robinson had been in communication with the City because of a question of zoning classification. The property is on the west side of Rangeline Road, several houses south of 136th Street. Mr. Robinson purchased the property in 1992 from a Mrs. Boselle who had lived there for 4 1/2 years. Mrs. Boselle occupied the property until she could no longer maintain it; then the property was taken over by Mr. Robinson. At that time, he submitted an application for a building permit through his contractor, James Allen, to convert the property to a three-unit apartment complex, one unit upstairs, two units downstairs. At that time, Mr. Allen obtained an Improvement Location Permit and the development of the project was left up to the contractor, James Allen. In the meantime, Mr. Allen suffered a heart attack, but did eventually complete the project and a Certificate of Occupancy was finally issued and inspections made. The property has been leased continuously since its completion as a three-unit apartment project. There has been a remonstrator who has brought this to the attention of the City Council and the Mayor, and as a result, the Department of Community Services has brought the matter to the attention of Mr. Robinson. Mr. Robinson has been responsive from the first time he was notified that there was a problem with the zoning. Mr. Robinson thought he had complied with all requirements, inasmuch as he was given a Permit and a Certificate of Occupancy. No one told Mr. Robinson he needed special permission to receive a zoning variance. It should be noted that there are numerous duplexes and apartment complexes within this particular corridor on North Rangeline Road. Mr. Wendling circulated photographs of the completed apartment complex at 740 North Rangeline Road. The City requested that Mr. Robinson go through the process to obtain a Special Use for a three apartment complex out of a single family residence. The house contains almost 1600 square feet. The lower level consists of 1,058 square feet, divided in two units containing 529 square feet each and marketed as efficiencies. The upper level consists of 560 square feet and is a one (bedroom?) apartment unit. Since the conversion of the property into rentals, there has been nothing cited by the City indicating that there have been problems, or code violations, or violations of any nature. It was discovered that the property should have gone through the zoning process at the time the building permit was s: \B ZA \Minute s. bza \bza2 OOOj an 2 requested. According to Mr. Wendling, his client takes responsibility for the situation and should have followed up. Mr. Robinson owns a number of properties throughout the community that he leases and has tried to be a good neighbor. Mr. Robinson creates a market for individuals that need smaller, efficiency living in the Carmel area. The units are presently fully leased, and have been for a number of years. Mr. Wendling reminded the Board that in a B-5 Business district, it is an intention of the district to allow for comparable mixed use of residential and business in close proximity. A Special Use shall generally be considered favorably by the Board and excepting cases where the Board finds that the proposed Special Use is obviously.inappropriate due to unique considerations. In other words, if there is something so unusual about the way the property is operated, the Board would go against the presumption of approval. Mr. Wendling presented letters to the Board from individuals in support of Mr. Robinson's project and photographs of other properties that Mr. Robinson owns in an effort to show the types of citizens Mr. Robinson target markets. Members of the public were invited to speak in opposition to this petition. The following appeared: Chuck Phillips, 730 N. Rangeline Road, Carmel, stated this home had been in his family since 1959. Mr. Phillips had filed a complaint with the City in 1996 when Mr. Robinson moved in next door and started construction on the property. Mr. Phillips was under the impression that Mr. Robinson was constructing a double. At that time, Mr. Phillips was told that a double was allowed within the zoning. Mr. Phillips learned that a building permit had not been issued. Mr. Phillips then filed a Request for Information on the entire project. At an even later date, Mr. Phillips found that a permit was issued under another person's name as owner of the property, and incorrect zoning was recited. Mr. Phillips stated that Mr. Robinson owns a number of properties in and around Carmel and should have been aware of the zoning of the property. Mr. Robinson knows what he is doing when he renovates properties, and is aware of the process. Mr. Robinson should have had a proper permit from the inception. Mr. Phillips stated that according to Mr. Wendling, there have been no problems with any neighbors; however, Mr. Phillips produced a newspaper article regarding a neighbor with 30 to 60 cats in residence. People drive through his yard to get to the neighbors' and park in his driveway. Mr. Phillips submitted photographs to the Board showing the cars parked blocking his drive. Parking is very limited in this area. Mr. Phillips. stated that according to the B-5 zoning, there should be 800 square feet per dwelling unit. Mr. Phillips also submitted a copy of the Complaint he filed in 1996. Mr. Phillips asked that the Board not approve the Special Use. Lance Harting, 641 First Avenue NW, Carmel, three lots away and behind the subject property, appeared before the Board as president of the Old Town Neighborhood s: \BZA \Minutes. bza \bza2000jan 3 Association. Mr. Harting stated that he had added a second story to his home and a carriage house garage, and had complied with the zoning rather than requesting a variance at the time he constructed his garage. The Old Town Neighborhood is not a subdivision and does not have covenants and restrictions. The only protection the residents have is the zoning and Mr. Harting was hopeful that the Board would enforce the zoning in place, not grant the Variance, and protect the people in residence. Mr. Harting did not believe that Mr. Robinson was not aware of the zoning. The original permit, filed by James Allen, listed Mr. Allen as the property owner. This information is incorrect ifnot fraudulent--Mr. Allen was never the property owner. The neighborhood does have rental properties and there is no problem with responsible renters and responsible landlords. The first responsibility of a property owner is to make sure you comply with the zoning. Mr. Harting commented that allowing three rental units under 500 square feet, crammed into an original, single dwelling unit is not an asset to the neighborhood. The neighborhood is in transition, and the City has thus far put a lot of money into the area by installing old style street lights, brick sidewalks, and sewers. The City government has been responsive to the Old Town Neighborhood and Mr. Harting was hopeful that the Board would also be responsive and not allow the three-unit, multi-family use in this location. Members of the public were invited to speak in favor of the petition; the following appeared: Chastity Heist, 740 North Range Line Road, Carmel, spoke as a tenant of Mr. Robinson. Ms. Heist currently lives in the unit previously occupied by the "cat lady." Mr. Robinson had offered the return of Ms. Heist's security deposit if she wanted to move, or, if she preferred to stay, Mr. Robinson approved having the carpets steam-cleaned and deodorized any time at his expense. Ms. Heist stated that her apartment is in good working order, and any problems she has had, Mr. Robinson has responded promptly. There are designated parking spaces and two additional spaces for visitors. Most residents are at work during the day and the lot is empty. Ms. Heist stated that Mr. Robinson takes care of the apartments and maintains the grounds--the apartments are not an eyesore In any way. Charles Hook appeared before the Board on behalf of "TTTLLP" which purchased a property at 750 North Range Line Road approximately one and one-half years ago. The property is a 1950's white ranch home adjacent and to the north of Mr. Robinson's property. Mr. Hook converted the property into a business for his business and his wife's business. Many of the recent homes sold in this area have been sold as commercial sites. Mr. Hook stated that he had worked with the Department of Community Services and the City Engineer to make sure that he was in compliance with regulations, zoning, drainage, landscaping, etc. A number of owners have made tremendous capital improvements to their properties. s: \B ZA \Minute s. bza \bza2 OOOj an 4 Mr. Hook stated that he had toured Mr. Robinson's apartments and was impressed with them; they were all new appliances, neat and clean. Mr. Robinson has been an excellent neighbor. Mr. Hook shares parking with Mr. Robinson property--the driveway and parking lot (5 spaces) is asphalt covered--Mr. Phillips' drive is gravel and there is a definite property line between the asphalt and gravel. Mr. Hook stated that he was not aware that there was a Neighborhood Association for the Old Town neighborhood, however, Mr. Hook was hopeful of getting involved with the Old Town Neighborhood Association after this evening. Mr. Hook stated that Mr. Phillips had put "boulders" on his property line that make it very difficult for Mr. Hook's invitees to turn around in order to exit his property. Mr. Phillips also parks his auto in such a position to be as close to the asphalt as possible, directly opposite the stairs, and creates a very narrow pathway for vehicles to navigate in and out of the property. Mr. Hook stated that Mr. Robinson has been an excellent neighbor and was hopeful that the Board would be favorable to Mr. Robinson's request for a Variance. Mr. Wendling's rebuttal: Mr. Wendling was complimentary of the City's efforts on behalf of Old Town Carmel. Mr. Wendling showed a "before" photograph of the property. Mr. Robinson has paved the parking area to accommodate 5 vehicles; there is also street parking available. The "cat lady" had cats in the unit for 5 days before Mr. Robinson took legal action to have the cats and the renter removed. Mr. Wendling did not understand why this was a concern at this point. The contractor filled out the Improvement Location Permit, and the location clearly says 740 North Rangeline Road and describes the work to be done. Mr. Wendling stated that his client did not side-step, deceive, fraud, or misrepresent. Mr. Wendling was hopeful that the City would be responsive to the question as to whether or not Mr. Robinson has been responsive to the inquiry. Terry Jones of the Department of Community Services reported that the history of the issuance of the permit was accurate. The zoning maps are probably not the best available . and there are probably incorrect designations on the maps. The situation on North Rangeline Road is even more complicated because there are pieces of property zoned differently that are only one property away from each other. The individuals that review plans do their best to make sure that the zoning is correct within the classification. In this particular instance, a mistake was made and a permit was issued. A Special Use should have been obtained prior to filing--the square footage for each unit should be 800 square feet in a B-5 District. The Department does not support the application for a Special Use. If the Board does deny the application, the Department would recommend giving the petitioner additional time to allow the tenants to re-Iocate. Mr. Weinkauf noted that the permit application does recite the owner as James Allen rather than Pat Robinson, and that it also indicates the type of improvement as being a porch with "re-model" being checked. The statement under type of construction says "Made three small apartments out of one house." Does this mean that this was written s:\BZA \Minutes.bza\bza2000jan 5 compliance with code sections of electrical, exits, plumbing, all manner of things, and Mr. Robinson left it up to Mr. Allen. Mr. Allen may have made a mistake, we don't know. We did what we thought was appropriate--we spent the money to get the application, spent the money for the Improvement Location Permit, we obtained the Certificate of Occupancy--that means someone inspected the property. If the petitioner had known that he had to go through the process to obtain a Use Variance, or a Special Use Variance, or a Developmental Standards Variance, we would have done so. We are here today because we have been working with the City to resolve this problem. We did not try to avoid it and no legal argument has been made that says you are estopped for bringing this up. In response to questions from Pat Rice regarding Mr. Allen, Mr. Wendling stated that Mr. Allen is presently paralyzed as a result of a heart-attack. Pat Rice asked if the owner were responsible for any mistakes or oversights that Mr. Allen may have made on his behalf. John Molitor responded that ignorance of the law is no excuse. This case is just a lot of honest mistakes occurring. Mr. Molitor did not feel that the City was deliberately trying to lead this land owner astray by telling him he could do something he was not allowed to do. Charles Weinkauf then commented that there may have been mistakes made in the issuance of the permits. The remodeling went forth, but even if the apartments met the square footage requirements, the fact remains that a Special Use permit for any type of multiple family dwelling would have needed to take place. It is difficult to believe that someone in the rental business is not aware of what needs to be done as far as various Special Use permits, zoning ordinances, etc. are concerned. Beyond that, let's assume that those mistakes were honest mistakes and the issuance of the permits were honest, etc. The apartments are still under the allowable square footage already in place by the zoning ordinances at the time of the application. That would be the ignorance of the law if anything were to exist at that time. The mistakes can be overlooked, but the square footage requirement was bothersome. Mr. Wendling responded that Mr. Weinkaufwas correct, his client should have been responsible for knowing what the zoning codes are. When the application was submitted and approved, and there was no response, then the permit was issued, it only reinforced to his client that it was an allowable development. Mr. Wendling stated that his client is not trying to pull one over on everybody, his client has not willfully tried to skirt the responsibilities of the zoning. Mr. Weinkauf referred to the application that refers to the type of improvement as being "remodel, a porch--type of construction, multi-family." It does not state anywhere on the application that the structure is to be remodeled into three apartment that are less than the 800 feet requirement per dwelling by Ordinance. s: \BZA \Minutes. bza \bza2000jan 7 Mr. Wendling stated that the plans were submitted with the application. Terry Jones confirmed that the plans were attached and a multi-family indicates 3 or more units. The individual who reviewed the plans in the Department was not aware of the 800 square foot requirement in the B-5 District. Leo Dierckman commented that the issue is not so much the past, but whether or not conversion of single-family residential properties to multi-family housing should be encouraged. In response to questions from Pat Rice, John Molitor stated that the landowner is ultimately responsible to follow the code. It is unfortunate that the City made mistakes, but the City does not have any liability unless, again, there is an Estoppel which only occurs when there is some sort of deceitful intent--Mr. Molitor did not believe that that was the case in this instance. There were questions asked of the Department regarding the process in making application for an Improvement Location Permit. Mr. Robinson stated that he had no idea of the 800 foot requirement until this evening, however, he did suspect there might be "something going on." Mr. Robinson referred to another project of his that would be heard this evening--also small apartment units. The units in the Docket being discussed are about 20 to 30% larger than the ones located across the street that have been there for approximately 13 years. From an owner's standpoint, Mr. Robinson stated that his place is nicer, bigger, and better than others he had seen. It was Mr. Robinson's belief that he was helping Carmel and helping the Mayor with restoration up and down the street--and then find later that it is not correct. Mr. Robinson stated that he did entrust the project to Mr. Allen, and Mr. Robinson thought he had done it correctly. Mr. Robinson stated the property was inspected and if anything structurally, electrically, etc. had not been in compliance it would have been fixed. Likewise, when it was inspected, there was no mention of the size of the units or the number of units, so Mr. Robinson assumed the project was OK. Mr. Robinson reiterated that he had not tried to shirk his responsibilities at any time. Mr. Robinson stated that ifhe had known it wasn't right, he would not have bought it in the first place (1992.) Mr. Weinkauf asked if it were possible to renovate the building to provide for 2, 800 square feet apartments. Mr. Robinson responded that it was virtually impossible because of the layout. A lot of square feet would be lost in constructing a stairwell on the inside. John.Molitor explained to the Board that there are two more options available than just to confirm or deny. Even if approval were granted, the applicant would have to apply for a developmental standards variance in order to have units smaller than 800 square feet. The second option on the approval side would be to treat the entire application as a Use Variance--this also requires a higher burden of proof and proof of certain hardships on the petitio.ner. There are two options on the deny side. One is to deny bec.ause of non- compliance and immediately stop violating the ordinance and come into compliance s: \B ZA \Minutes. bza \bza2 OOOj an 8