PLAINFIELD BOARD OF ZONING APPEALS
MARCH 19, 2012
CALL TO ORDER
Mr. Monnett: I would like to call to order the Plainfield Board of Zoning Appeals meeting for March 19, 2012.
ROLL CALL/DERTERMINATION OF QUORUM
Mr. Monnett: I will ask our board secretary if you would please have a roll call for determination of a quorum.
Mr. Carlucci: Mr. Brouillard- here
Ms. Duffer- here
Mr. Cavanaugh- here
Mr. Gibbs- here
Mr. Monnett- here
We have five members present, none absent; we have a quorum for conducting business.
PLEDGE OF ALLEGIANCE
Mr. Monnett: Would you all please rise for the Pledge of Allegiance.
APPROVAL OF MINUTES
Mr. Monnett: I will now entertain a motion for approval or changes to our board meeting from February 23, 2012.
Mr. Gibbs: I move that we accept the minutes as written.
Mr. Cavanaugh: Second.
Mr. Monnett: I have a motion and a second, all in favor say aye.
Mr. Carlucci: Mr. Brouillard is not voting tonight.
Mr. Brouillard: Abstain.
Mr. Monnett: I will welcome our new member Mike Brouillard to our board.
OATH OF TESTIMONY
Mr. Monnett: For those of you testifying tonight, if you would please rise for the oath of testimony given by our Town Attorney, Mr. Daniel.
Mr. Daniel conducted the oath of testimony.
Mr. Monnett reviewed the guidelines governing the conduct of public hearings.
Our first petition tonight is BZA-12-001 Harland Holdings.
Ms. Sprague: This one was continued from the last meeting and just to get you familiar with the location again, it is on the southeast corner of Stafford Road and Brookside Lane. It is surrounded by residential but is right now an industrial building with a pallet or a wood company inside. The last meeting you guys asked us to work with the petitioner to come up with some commitments that they might be able to record to help insure that the office that they are proposing would be less intense than the current business. So the request is a variance of use to try to reduce the intensity of the current non residential use there and the plan is to change it to office, but to not actually ask the pallet company to move until they are ready to themselves. At the time that it would become an office they propose to make several site improvements with a new entry way, to put in some screening in the fencing, to put in a parking lot that is required by the ordinance and things like that. As I mentioned the variance of use in this case is intended to allow the use to be less intense than what is currently on the premises. We spoke with the petitioners, and they came up with a list that we also helped narrow down from our office district use, which was just the list of just no architect engineer, basically just office type stuff along with the painting contractor which is what one of the owners would be doing out of the building. They agreed that there would be no outside storage of materials, obviously in this case particularly, paint, or anything of that nature. As far as vehicles go, based on the painting contractor business, was the 4 half ton vehicles, or limiting it to the 4 half ton vehicles and possibly a trailer, then they would park those in back if they were going to stay outside. Then we do have a note, our Exhibit C has on it, basically it refers to owners and future owners, we propose to change some of that so that it refers specifically to Harland Holdings so that it would not run with the land, sort of speak, it would just go for this owner. We didn't talk to the petitioner, but I think they knew about that kind of intent. How does the board feel about the proposed commitments, do you feel that covers what you were concerned about last time? The office use hopefully has much potential to be less intense than the industrial that is out there right now, and then any of the improvements would be or would require an improvement location permit to be submitted to staff so that we could make sure that they follow through with what they said they would do. Then do you feel that there are any additional conditions that would maybe make it more favorable long term? I know the petitioner is here if you have any questions and I can answer any questions for you.
Mr. Monnett: The petitioner, please come forward.
Mr. Danforth: My name is Andy Danforth; I live at 7835 Quail Ridge South Drive in Plainfield.
Ms. Duffer: I have one question, in the statement of commitments number 3, you had the 1 enclosed trailer 7' by 14', what size is the trailer that is out there now, is this smaller than the trailer that is out there currently?
Mr. Danforth: Yes, that is a semi trailer, this would be more like something you would pull behind a pick up truck, it isn't a large trailer, it would have my company name on it, and it would just be to take to job sites.
Ms. Duffer: Thank you.
Mr. Brouillard: I understand you are going to put some kind of covering on the fence.
Mr. Danforth: In the back, yes.
Mr. Brouillard: Would that cover up that trailer, would that trailer not be seen?
Mr. Danforth: I do not believe that the trailer would be above the epoxy fence is, no, I do not think it could be seen, I don't know that for sure, but I don't think it would, I think the fence is 8'.
Mr. Carlucci: I was at the meeting that you had, I spent a long time there at the meeting, and one thing I guess because I've been in the Planning and Zoning, unfortunately for a time I was the Planning Director and then the Council decided they wanted someone that actually went to Planning school I guess. But one thing I have never heard of is as long as I have been here is taking a legal nonconforming use and granting commitments, I just don't know, maybe you can answer that Mel. I'm trying to understand how you can do that, how you can have a legal nonconforming use and then adopt commitments to do that.
Mr. Daniel: Well there is a lot of things about this that is frankly I've been representing this community for 30 years and in fact I called Joe this afternoon, I didn't look at this thing unfortunately until later this afternoon, and the commitments that have been proposed in their design for a standard, you can look at the language at the bottom of the commitments where it talks about this takes care of anybody that is interested in the property, this (inaudible), well the owner as I understand it we are not granting this to the owner, we are granting this to somebody that doesn't own this property, and in the commitments on this sort of thing (inaudible), you really got a lot of steps here that I don't think this board or this community has ever dealt with, we are talking about somebody that is talking about buying a piece of property, leaving a non conforming use, asking this board to grant a use variance, which is very hard to do, (inaudible), this is a residential area, and for some reason this can't be used for residential purposes.
Mr. Danforth: I don't think from a financial standpoint it makes sense not to go down this road.
Mr. Daniel: This board knows that economics is never (inaudible), there is nothing existing on this property that can keep it from confirming with our residential zoning commitments, am I correct on that Joe?
Mr. James: I'm not sure what the lot size is, it might be legal nonconforming, but regardless to lot size.
Mr. Daniel: It is a half acre.
Mr. James: A house could fit on the lot then it would have to comply with the R-2 standards.
Mr. Daniel: Half acre, it has city utilities doesn't it?
Mr. James: Yes.
Mr. Daniel: Half acre, there is plenty of room to build a house on.
Mr. James: But with it being a corner lot, it has two 30' setbacks, it would still have to comply with all the R-2 standards.
Mr. Daniel: I mean there is a house on the other corner out there; I think it is about the same size lot as this one. If you look at the plat, I think all of those lots are pretty much the same size, you can see the lots there, I think they are all about the same size.
Mr. James: Yes, I am pretty sure a house would fit.
Mr. Daniel: So anyway, I'm trying to help you out Rich, it is a struggle for me because I'm not sure how this board grants an owner a use variance, but then it is supposed to be restricted to not being able to convey it to someone else, but yet they are going to turn around and convey it to someone else and leave a non conforming use there for how long? How long has this pallet company been operating?
Mr. Danforth: Until they are done, we have no plans on having them leave.
Mr. Daniel: So we could have some sort of a restricted use variance granted for somebody that put something in there sometime I guess. I'm (inaudible). Is there any other condition on that property out there that would prevent it from being used for a single family residence like it is currently zoned?
Mr. James: I don't know if there are any environmental problems, once they did take down the building or if they try to convert the building into a single family, I don't know what all of the issues are.
Mr. Daniel: You don't know if they have raised any, they haven't raised any questions as far as it being able to be used for single family residence?
Mr. James: No.
Mr. Daniel: I don't know if that helps you out or makes it worse Rich.
Mr. Carlucci: I struggle with this and I struggle with at the meeting that we had, on the legal nonconforming uses, I mean to me it seems you have a legal nonconforming use there, and the only choice you have is to either make it legal or keep it as is, I honestly don't know how in zoning you do anything else to this property.
Ms. Duffer: Legal nonconforming is just for the current owner, so if you have a new owner.
Mr. Carlucci: It is also in the property, the property is the legal nonconforming use.
Ms. Duffer: So technically, a new owner could have it as long as they got the variance for the legal nonconforming use.
Mr. Daniel: They wouldn't need it; the current owner could sell it to someone else or continue to operate that same business there, as long as they don't change that business.
Ms. Duffer: Which is what they are talking about doing right now, because when I asked last month about how long the pallet business, just like you asked, it is still that they don't know, it could be for a very long time. So the only time they would need something would be when that pallet company needs to go away and they need to do something else with the building, and they are wanting the guarantee that we will allow you to do something else whenever that point comes up which could be 5-10 years from now, correct?
Mr. James: Yes, as a legal nonconforming use another owner can come in and keep doing the same business as long as they don't expand it or increase the intensity of the use on the property.
Mr. Daniel: These folks that want to buy it, could buy it right now and my understanding they are going to continue it as the pallet business, they can continue what they are doing, and then at such time as they decide to do away with the pallet business, then they could come into this board and tell this board exactly what they are proposing to put in out there, we deal with that at that time rather than trying to come up with conditions or commitments or whatever else and hope that somewhere down the road it is satisfactory to the community to the neighborhood.
Mr. Brouillard: Excuse me, I've got some catching up to do, I wasn't here last month. Does Harland Holdings currently own it?
Mr. Danforth: No, we are proposing to buy it, but it doesn't make sense for us to buy it if the pallet company goes away and we have a piece of property that basically useless. We have made an offer, but it is contingent upon us being able to do something with it.
Mr. Brouillard: I see.
Mr. Cavanaugh: Mel, am I understanding correctly that if the current owner or Harland buys this today they own it, and they can come in for a similar request like they are doing now, and the consideration be different, is the biggest issue that we are considering a petition from someone who doesn't actually own the property?
Mr. Daniel: It is complicated, I do think secondarily to that, still for them to come in and say well we don't know yet what we are going to do, but if you will grant us this variance we will agree to do these things if nothing else, we use that example on the corner there of Stafford, but when they came in, they knew exactly what they were going to do, (inaudible) restricted, and I think I mentioned to them, they can't even park a truck outside that property down there because it is on the corner of a residential district, if the board is very very careful, and there's a hardship, that's a flood zone, they couldn't put a house on there. Here you can put a house on that tomorrow, but here they are asking basically to continue a business in an area zoned residential with no legal hardship, there is no hardship on this property in my opinion. (Inaudible) they may not want to do something else, but it really does complicate things trying to do what we are doing now and say well grant us this, whatever they are asking for, even though we don't own the property, it creates a lot of layers of I think administrative problems down the road for the Town. I do think it does create some precedence, make people start looking at what is a hardship in Plainfield, Indiana, I think they are going to look at this and say there's no hardship here.
Mr. Monnett: Any questions from the petitioner? If there is anyone in the audience that would like to speak for or against this request, please come forward, if not, I will close it to the public portion and open it up to our board for some discussion and or a possible motion.
Mr. Daniel: I will say if you consider granting this this evening, I would ask that we be authorized to complete or revise Exhibit C because (inaudible).
Mr. Brouillard: Can we even grant this to someone that doesn't even own the property?
Mr. Daniel: Well they are the petitioner; I mean you can grant it to the petitioner but…
Ms. Duffer: In theory their financing could fall through, I don't know if you've secured financing or not, but in theory it could fall through, and then this is a mute point.
Mr. Daniel: That is what complicates this, because we really don't have the owner here, I think it creates more problems.
Mr. James: They do have authorization from the owner, and we do that all the time with rezones, it is most common with rezones. Someone has an option on the property and they will get authorization from the owner to proceed with the rezone.
Ms. Duffer: And the owner was here last month.
Mr. Daniel: But as you can see, as we were talking about Exhibit C, the variance would be granted to the owner, well the commitment has been that if the property is transferred the use goes away, well the transfer we are talking about here is to Harland, so if the current owner transfers the property to the Harland's, the use variance goes away, so that would have to be re-drafted and re-clarified and explained, and know that they will be allowed one transfer to Harland's, but no additional transfers.
Mr. Monnett: It seems very complicated, but then again to me it seems to make sense to leave it as the pallet, and not grant this right now just because of all the, as I call it, side tracks, branches that come off this, because it is very complicated to me, and I cannot see as Mr. Brouillard kind of mentioned that maybe granting any type of variance no matter what it is to someone that is not the legal owner yet, and having to come back and redo everything if that is even possible. I am not for this.
Ms. Duffer: Greg I am going to have to agree with you, I think we need to take it upon Counsel's advise, either re-draft this, but again if we leave it alone the way that it is and the purchaser purchases this property, they can keep it as it is, the legal nonconforming use, and then at the time which again could be all new board members at that time make the decision to rezone it or rework the property at that time.
Mr. Cavanaugh: I think what I am hearing our consensus is that when Harland finally owns this it is time for them to come forward.
Mr. Monnett: That is how I feel, yes.
Mr. Daniel: I think two things, I agree with that but then I also agree (inaudible). If this pallet business goes out, I mean even if the Harland's come back in 60 days, and say the pallet business is still going to be there, we don't know how long but we would like to go forward with this, I just think it is bad timing.
Ms. Duffer: It needs to be done at the time that the pallet company goes away, and potentially something new to go in.
Mr. Daniel: We don't know what the neighborhood could look like in five to ten years from now, how the neighbors may feel at that time.
Mr. Cavanaugh: If there is a denial on this isn't there a time limit before they can make a similar application?
Mr. Daniel: There is, but it can be waived by the board. I think it is six months, is that right Joe?
Mr. James: Yes, six months.
Mr. Cavanaugh: If we were to deny this, and then Harland purchases this property and they close the pallet business and they are ready to come back with new application, the formal process it has to be at least six months past the denial or they can request a waiver of that time frame and they can complete their transactions (inaudible).
Mr. Carlucci: It seems like we are dancing on this issue of what we are going to do here. Let's say Harland, they come in to buy it, it is still a legal nonconforming use, you are still stuck with trying to do this down the road. It doesn't get any easier I don't think.
Mr. Daniel: If they apply again.
Mr. Gibbs: It is the hardship that has to be proved.
Mr. Daniel: It will still be an issue at that time.
Mr. Cavanaugh: So hardship exception still exists no matter what, and what is making it (inaudible) now is that the lack of direct ownership and the potential transfers, and the language (inaudible).
Mr. Daniel: The timing and not knowing what they want to put in there at the time.
Mr. James: If it is withdrawn by the petitioner before there is a vote, it can be brought back in three months.
Ms. Duffer: Would we like to give the petitioner the option to withdraw?
Mr. Monnett: It is an option if you want to withdraw and come back.
Ms. Duffer: I think again the hardship piece is going to be the hard part to prove, I don't think that we have a problem with the ownership, you owning it and letting the pallet company stay, I think it is the hardship once that timeframe is complete and we know exactly when they are leaving, that is going to be the challenge for you to prove to us that there is a hardship and that you would like to keep it in the plans and the scope that you have set forth.
Mr. Danforth: Ok.
Mr. Daniel: If you would like to withdraw your petition you can ask the board to do that.
Mr. Danforth: Can I withdraw my petition?
Mr. Monnett: The petitioner would like to withdraw his request for BZA-12-001.
Mr. Cavanaugh: So move.
Ms. Duffer and Mr. Gibbs: Second.
Mr. Monnett: I have a motion and a second, Mr. Carlucci would you please poll the board.
Mr. Carlucci: Would you break the tie on the second.
Mr. Monnett: I will go with Mr. Gibbs.
Mr. Carlucci: Mr. Cavanaugh made the motion, seconded by Mr. Gibbs,
Mr. Brouillard- yes
Ms. Duffer- yes
Mr. Cavanaugh- yes
Mr. Gibbs- yes
Mr. Monnett- yes
Five ayes, none opposed, motion is approved.
Mr. Monnett: Next petition, BZA-12-004 SC Petroleum.
Ms. Sprague: This one is for the southwest corner of Main Street and Moon Road. This triangular piece there that we recently rezoned General Commercial so that they can try to put a gas station on the property, the site has proven to be a little bit difficult, it is kind of small and with the shape the triangular shape there, it shows the building over to the east and there is a power line easement as well as the power line that is actually on the property on the south side that pushes the building up towards the north and basically so that in order for them to have the usual interior access drive go around the property, some of that is in the front setbacks on the east and the north, so their request is to allow that drive within the front setback. Normally we would allow parking or a driveway, a driveway connects the right of way to the lot whereas this interior access drive is basically what makes the lot work. So there is a little bit of a definition issue there. They do have all the landscape areas that they need and it is just a little bit of a squeeze there, and I guess the (inaudible) guys think that there is a hardship from this property based on the two frontages which requires more setbacks and primarily the power line and the easement at the rear. The development plan was approved at the last Plan Commission meeting; they will need to get approval from INDOT for the driveway on Main Street, other than that I think they should probably be good to go besides this variance. I know the petitioner is here if you have any questions.
Ms. Duffer: Thank you.
Mr. Carlucci: Isn't there already an opening on 40? Do they want to widen it, is that what they want to do.
Ms. Sprague: There is not one, there is one in the median I do know that, but it goes to the residence on the north side, and so I think they will use that to go maybe both ways.
Mr. Monnett: Is the petitioner here?
Mr. Daniel conducted the oath of testimony.
Mr. Spiars: My name is Russell Spiars; I live at 650 Eagle Creek Circle in Zionsville. I am the Civil Engineer. I have no specific presentation to make, but I am here to answer questions if you have any, I will do my best.
Mr. Cavanaugh: The question I have, first hand Mr. Spiars you guys have been working with INDOT on this entrance on the plan, have you had plenty of time to collect their input?
Mr. Spiars: Yes we have started that process, that long meeting with them and they lined what their road map was to getting the driveway cut, they did have an issue with the driveway cut, they wanted to know primarily how much traffic it might generate, whether it would be a problem with the existing crossover that is set up for the residential property to the north, so we haven't started the traffic study yet, but they didn't shut us down from the get go, and implied it was doable just primarily to sizing and traffic flow and that kind of questions.
Mr. Cavanaugh: Thank you.
Ms. Duffer: So you will be able to turn both east and west out of this off of 40, in theory?
Mr. Spiars: Turning west, that is the concern, and they will have to do something to protect that to prevent somebody cutting across and going west, so that is one other concern, and the intention is not to set the thing up where it is a math configuration to turn left, unless we move the whole thing or widened it and made it where it worked, it would have to be widened and then moved and then we would have to coordinate with the residents to the north, maybe realign their driveway.
Mr. James: (inaudible)
Ms. Duffer: And you know they will.
Mr. Brouillard: So if that cut is widened, it would be allowable to come out of that driveway, cut across and then go west, is that what I am hearing?
Mr. Spiars: I'm not sure what the maximum limits of their width are, but you could widen it or shift it, you'd have to widen it obviously, but you would have to line it up further to the east, widen it and perhaps move it. Now the driveway to the north, coming down from that home, is sort of in the middle of their lot, and just a gravel drive, so it might be possible to talk to them about shifting to the east, it doesn't seem like it would be a hardship, just an additional cost, but it would probably be workable to line it and move it to the east. We really haven't entered that process yet of talking to the neighbor to the north.
Mr. Monnett: Joe, when McDonald's went in here to the west, coming out of that, where you cannot go back west, I assume that was the State's call there wasn't it? I would assume if I was the State I'd have them do the same thing, which would prevent…
Mr. Spiars: Right in right out.
Mr. Monnett: Right.
Mr. Spiars: Of course somebody in a 4 wheel drive truck or a truck could go across that then they can do all kinds of things and all kinds of situations, we can't prevent everything, but we can minimize the chances.
Mr. James: (inaudible)
Ms. Duffer: But this is not a deal breaker for you is it?
Mr. Spiars: The variance right now is, there is really no way to make this work without having a…
Ms. Duffer: I know it is the interior access piece that is what I was asking.
Mr. Spiars: We just cannot move the building further to the south to get that drive out of the front yard.
Ms. Duffer: I am very familiar with this property, the company I work for looked at it at some point and time too, and it is a very awkward piece of property, and I can see where that hardship is.
Mr. Carlucci: I don't think the issue would be that the Town and INDOT.
Ms. Duffer: Correct.
Mr. Monnett: Questions?
Mr. Gibbs: No, I saw this come before the Plan Commission twice; they were pretty supportive of this project and what is going on here. It is a tough application; they've done what they can to make it work.
Mr. Monnett: I will open this up to the public if there is anyone that would like to speak for or against this petition. Seeing none, I will close it to the public and open it up to our board for discussion or a possible motion, which I am for this 100%; I give them all kudos for going in on that size of property, and I know it will work.
Mr. Cavanaugh: I think it is consistent with other variance requests that we have granted as far as the setback and a corner lot. I move that the Board of Zoning Appeals approve BZA-12-004, as filed by SC Petroleum and Mike Badesha requesting a variance to allow the interior access drive and front setbacks to allow the development of the proposed 4,880 square foot Marathon Convenience Store and Gas Station at 1101 West Main Street subject to the following conditions: 1.) Substantial compliance with the site plan file dated February 17, 2012 as approved with development plan 12-004.
Ms. Duffer: Second.
Mr. Monnett: I have a motion and a second, Mr. Carlucci would you please poll the board?
Mr. Carlucci: The motion was made by Mr. Cavanaugh, seconded by Ms. Duffer. Mr. Brouillard- yes
Ms. Duffer- yes
Mr. Cavanaugh- yes
Mr. Gibbs- yes
Mr. Monnett- yes
Five ayes, none opposed, motion approved.
OLD BUSINESS/NEW BUSINESS
Mr. Monnett: Old business or new business Mr. James?
Mr. James: We have 2 petitions filed for April meeting, so we will have a meeting in April, Jill says we have 3, so I guess we have 3.
Mr. Gibbs: Business is picking up.
Mr. Duffer: I have a question, the sign for Dairy Queen, is that approved when they did that re-did Main Street and everything?
Mr. James: No, they came in last year and went to the Plan Commission and brought the sign in with a develop plan.
Ms. Duffer: That is what I figured then. Thank you.
Mr. James: I talked to Lee Faulkner he is the guy that put up the sign and we are going to try to maybe put a cabinet around it with a Route 40 logo on it, because the Plan Commission wanted it to blend more with the US 40 theme because it sort of sticks out like a sore thumb right now.
Mr. Carlucci: The rotation on the messages?
Mr. James: I emailed him about that, that it can't change more than once every ten seconds and it has to be a static change.
Mr. Carlucci: It can't be rolling, it has to stop.