| Paul Panczuk, Chairman | Drago Popovic | Rick Eberly, Building & Planning Director |
| Mark Lareau, Vice Chairman | Brendan Sheeran | Joe Svetanoff, Town Attorney |
| John Kennedy, Executive Secretary |
(The Pledge of Allegiance was recited by all.)
Absent: None.
Mr. Panczuk welcomed the new members: Brendan Sheeran and Drago Popovic.
Mr. Kennedy asked Mr. Panczuk if the minutes of the July 24, 2017 meeting looked accurate to him. Mr. Panczuk responded in the affirmative.
Motion to approve the minutes by Mr. Kennedy. Seconded by Mr. Lareau. Motion carries 5 ayes to 0 nays.
Chair:
Nomination for Paul Panczuk as Chairman by Mr. Kennedy. Seconded by Mr. Lareau. Nomination carries 5 ayes to 0 nays.
Vice-Chair:
Nomination for Mark Lareau as Vice Chairman by Mr. Kennedy. Seconded by Mr. Popovic. Nomination carries 5 ayes to 0 nays.
Executive Secretary:
Nomination for John Kennedy as Executive Secretary by Mr. Lareau. Seconded by Mr. Popovic. Nomination carries 5 ayes to 0 nays.
Recording Secretary:Motion to appoint Margaret Abernathy as recording secretary by Mr. Kennedy. Seconded by Mr. Lareau. Motion carries 5 ayes to 0 nays.
Mr. Eberly advised that the list of variances is attached to all the agendas, posted on the doors, and included in the board members’ packets.
Mr. Panczuk advised that Public Hearing was closed at the December 17, 2018 meeting; however, the decisions were carried over to this meeting.
Mr. Eberly stated that there was a restrictive covenant on the property that underground storage tanks were prohibited, and the petitioner was able to get that restriction changed, so this petition may proceed. Mr. Eberly advised that Mr. Svetanoff has had a chance to review the document lifting the restriction along with the document regarding the drive-through.
Mr. Eberly noted that the list of variances is a paired down list based on feedback from the December meeting. The petitioner made changes to their Site Plan, which is the Site Plan in front of the board. The one variance that the petitioner is still requesting that the BZA was at odds with are the two 25-square-foot canopy signs, and the ordinance restricts those signs to 6 square feet.
Mr. Eberly stated, for the edification of the new members, that the BZA wanted to make sure that there would be no left-turn access to the parcel from southbound US 41 into or out of the property, as well as onto eastbound US 231. INDOT is going to allow the petitioner to install delineators on US 41 and US 231. Additionally on US 231, there will likely be restriping of the roadway that will allow eastbound traffic to flow without being held up by persons turning left into the private drive or Schneider Place in an effort to get onto the property.
Mr. Eberly explained that the initial thought was that an additional lane would need to be added on US 231 to accommodate the through traffic; however, Mr. Post with Indiana DNR checked with INDOT to see if restriping could be put in place as the pavement is wide enough to accommodate the left-hand turn into both of the roadways without adding any pavement, and INDOT was receptive to that.
Mr. Eberly advised that the variance requests that are on the list reflect changes to the Site Plan requested by last year’s BZA.
Mr. Eberly provided an updated landscaping plan to the members and stated that there is a change to the landscaping on the south side of the property that came about due to a discussion between the petitioner’s representative and Mr. Tom Post, who is with the Indiana Department of Natural Resources and represents the interest of that body relative to Biesecker Prairie Nature Preserve on the southeast corner of US 231 and US 41.
Mr. Panczuk stated that the board asked the petitioners to meet with Mr. Post to get direct feedback and work together. Mr. Eberly was included in that meeting. During the meeting, the BZA gave directive on what they were in favor and not in favor of, and the petitioner has pared down the list significantly.
For the edification of the new members, Mr. Panczuk reviewed the US 41 Overlay District and the US 231 Overlay District, including lot size (2 acres) and building size (15,000 square feet on the footprint) minimums. Mr. Panczuk explained that some properties are grandfathered in because they predate the Overlay Districts and that the purpose of the BZA is to make exceptions when a hardship exists.
Mr. Panczuk stated that this parcel predates the Overlay Districts, and as such is less than the 2-acre minimum and would be undevelopable without a variance.
Mr. Eberly advised that this property is subject to three zoning districts, C-2 is the underlying zoning district, and the US 41 Overlay District and US 231 Overlay District are the other two zoning districts. Mr. Eberly further advised that, while the two Overlay Districts are very similar, there are differences. For instance, in the US 231 Overlay District, this use is allowed. It requires a Special Exception under the C-2 the US 41 Overlay Zoning Districts. There are other differences between the zoning districts, and it creates, kind of, a perfect storm that a petitioner finds themselves in on a piece of property that is serving three masters.
Mr. Chris Kalischefski with WT Group stated that the owners of this property actually live in St. John and are here with him; they are Kalpesh, Shamir, and Sonny. The developers from Hutton Development are also here. They are happy to answer any questions the board may have. Mr. Kalischefski emphasized that these gentlemen are local people wanting to build locally, using high-quality materials that last.
Mr. Kalischefski briefly reviewed the location of the property and the entry/exit access points. Mr. Kalischefski stated that they will be asking for variances for lot and building sizes; and based on the parcel, both those minimums would pose a hardship. Mr. Kalischefski noted that the Special Exception is required for a fuel station by the US 41 Overlay District and the C-2 Zoning District.
Mr. Kalischefski reviewed the changes to the Site Plan made at the request of the board. There was a diesel component on the original plan that has been removed leaving the auto component, the quick-service restaurant, and the convenience store.
Mr. Kalischefski reviewed the parking variance requests along with the impervious surface variance request, which present hardships based on the size of the lot and the nature of the business being built on said lot.
Mr. Kalischefski commented that due to the constraint of the lot size, the planting requirements required in the front, sides, and the landscape island requirement every 20 spaces or 100 linear feet, as outlined in Chapter 13, are hardships that would hinder the usability of the lot as well as the convenience and safety of the customers. He further commented that where it is practical, they have included planting islands.
Mr. Kalischefski addressed the lighting plan and photometrics. Mr. Kalischefski stated that the Illuminating Engineering Society of North America shows what they feel is safe on this type of a site. The guideline states for a rural area it allows 30-foot candles under the canopy and 5-foot candles for the parking area; and they are asking for 20 under the canopy and 1 on the drive aisles. He explained that the illumination under the canopy needs to be 20 because you are in a part of the business that is a task-oriented environment. It will be the least-illuminated retail petroleum site in the community.
Mr. Kalischefski noted that Mr. Post has concerns for the moths, the invertebrates, and their attraction to the light. The rays on the cooler side of the spectrum attract insects, while the warmer rays, yellows and reds, do not attract the insects. Mr. Kalischefski advised that they are working with LSI to make the lighting a 3000 Kelvin light.
Mr. Kalischefski stated that with LED lights, the spectrum can be reduced, where older canopy lights were emitting light horizontally and were not within a 70-degree cone. If the lights are flatter than 70 degrees, it attracts insects; furthermore, when lights are cooler on the Kelvin scale, it also attracts insects.
Mr. Kalischefski stated that they are proposing to install 3000 Kelvin lights; the lights under the canopy will be a 20-foot candle, on average. All the fixtures are horizontal fixtures with a vertical cutoff. Mr. Kalischefski stated that in the area between them and the bank, the combined lights will be at 1.4-foot candles. Mr. Kalischefski indicated various areas on the lighting plan and specified the foot-candle amounts.
Mr. Kalischefski explained that the southerly border of their property will have a berm with evergreen-style landscaping bushes, selected from a list that Mr. Post provided, on top to create a wall effect to help reduce the impact of headlights from vehicles that will be driving through and/or parking in the southerly parking spaces. Mr. Kalischefski stated that their landscape architect removed all species that were on the list as unacceptable and added those that were acceptable.
Mr. Kalischefski stated that the 17-foot candles in the drive aisles has a bit of spillover just outside the canopy. He further stated that only that one area between their property and the bank exceeds the standards.
Mr. Kalischefski noted that the Landscape Plan indicates where the bollards will be placed to further enforce no left turn into or out of the property. The bollards will extend in both directions beyond the radius of the turns.
Mr. Eberly stated that the bollards are a temporary fix because the Town has asked INDOT to address that by installing a permanent, raised median in place of the delineators when they complete the center-turn-lane project on US 41, from US 231 to just a bit north of 97th Avenue. INDOT said that they would consider it.
Mr. Kalischefski stated that on US 231, they are creating designated left-hand turn lanes, via striping and curbing, to prevent left turns in and out of the property; and that restriping will also straighten out the through lane.
Mr. Kalischefski addressed the signage variance requests. They are asking for two canopy signs at 25 square feet each, one on the north side and one on the south side. They are also asking for a variance to allow a total of 179 square feet, where only 100 square feet are allowed by Ordinance.
Mr. Kalischefski stated that this is more than just a gas station. One business is the auto islands; the others are a QSR, (quick-service restaurant) which will be Cousins Subs; a convenience store; and a coffee offering with a drive-through; so they are asking for a variance from the number of signs. They would like to have a total of 6 signs: one ground sign, two canopy signs, and three wall signs.
Mr. Kalischefski stated that refracted light is similar to when light goes through water, which can draw certain insects; and shiny surfaces can create that same effect; therefore, they are using a rough-texture masonry product and the south wall will have a slope towards the outside so any light hitting that will go down rather than bounce off and emit a reflection drawing any insects. Mr. Kalischefski noted that they will have a very dark brick look masonry on the elevations and will tilt the windows to create a dark shade to eliminate reflection.
Mr. Panczuk asked the dimensions of the canopy signs. Mr. Kalischefski responded that they are 2 feet by 12.5 feet. Mr. Panczuk asked what the dimensions are of the fascia at the end of the canopy. Mr. Kalischefski responded that they are 30 inches high by 30 feet long.
Mr. Panczuk stated that the petitioner reduced the size of the monument sign from 80 square feet to 30 square feet in favor of keeping the two larger canopy signs, and in his opinion, the canopy signs are less intrusive.
Mr. Lareau asked how the evergreens that they are proposing will interact with salt, road grime, and anything else that comes off the road. He is concerned that they may die as a result of what they may be exposed to. Mr. Kalischefski stated that they have tried to do a berm as tall as possible and that they are back from the road due to the right-of-way, so they don’t feel the spray will be as invasive; additionally, the species selected is a heartier species.
Mr. Panczuk asked if there will be a watering system in place. Mr. Kalischefski responded in the affirmative.
Mr. Popovic asked if there is a percentage difference between the cool light and the warmer light and the attraction to the insects. Mr. Kalischefski responded that on the warm side, there is a very small percentage. There is one type of bug that needs more studies; however, 95 percent to 99 percent of all bugs are attracted to the UV side of the spectrum.
Mr. Kennedy asked if they are proposing to have no sidewalk in their Site Plan along US 41 and US 231. Mr. Kalischefski stated that they were not aware that sidewalks would be required; and there is a detention area that runs through the frontage there.
Mr. Eberly stated that a sidewalk would be in the right-of-way.
Mr. Kennedy asked if the restaurant will be a sit-down or grab-and-go style. Mr. Kalischefski responded that Cousins Subs will have a few seats in the front area. Mr. Kennedy asked if they need the two extra parking spaces as they are over the impervious area. Mr. Kalischefski responded in the affirmative.
Mr. Panczuk expressed concern about traffic backing up onto US 231 with the drive-through window and asked if the window is where the coffee station is. Mr. Kalischefski showed where the drive-through window is and where orders will be taken for the coffee station.
Mr. Shamir Manhani responded that the drive-through will have a very limited menu. It will be something like Scooter’s Coffee or Biggby Coffee, which don’t have a lot of food item offerings. It won’t be anything like a Starbucks or Dunkin’ Donuts.
Mr. Panczuk asked if there are plans for a drive-through at Cousins. Mr. Mahani responded that there would not be a drive-through there.
Mr. Kennedy asked if the canopy signs will be illuminated. Mr. Kalischefski responded in the affirmative.
Mr. Panczuk expressed concern about the illumination of the canopy signs and the impact on the nature preserve. Mr. Kalischefski advised that there is a band above the light fixture that will wash the face of the fascia; it is not a backlit, horizontal illuminated sign.
Mr. Panczuk asked if the drive to the east and north will be repaved as part of this project. Mr. Kalischefski responded in the affirmative.
Mr. Panczuk reopened the floor for Public Hearing, which was closed at the December meeting.
Tom Post, Indiana Department of Natural Resources (402 West Washington, Indianapolis): I’m not based in Indianapolis, but that’s where our business office is, on that one. Mr. Chairman, thank you for allowing me to make some more comments this evening to you folks. I believe you have two new members, tonight.
(Mr. Panczuk stated that there are two new members and one that wasn't present at the last meeting.)
And one that wasn't present, so I will briefly try and – and tell you why the DNR is so interested in a gas station across the street from us. (Mr. Post asked who had the remote and asked Mr. Eberly to go back to the map that shows the whole area.)
So immediately south of this proposed development, there is a vacant 35 acres or so that the Department of Natural Resources owns. We purchased it back in the early 1990s. It’s an excellent example of what the prairie looked like in central Lake County, and also in Indiana. And we just don’t have very much prairie left at all in Indiana; um, so that’s why we purchased it. It has a number of rare plants and animals on it, including a number of insects, which you’ve heard the consultant discuss quite a bit about lighting and insects.
And over the years, we’ve become more and more concerned with the effects of lights on these night-flying insects out there. And you’re all aware of what happens at night when you turn a light on; bugs come from all over the place to it. We’re trying to minimize that, one of the concerns that we have here on that one. But that’s what we’re interested in; that’s why this department is here. Um, that’s why we’ve worked with the consultants trying to mitigate some of these factors that we’re concerned with out there. Um, we did meet on January 7, and we all sat down: Mr. Eberly, the consultants, the owners, myself, and tried to address some of the concerns and figure out ways to try and lessen them and its impacts on the nature preserve across there.
Um, one of the big ones was traffic congestion, especially US 231. (He asked Mr. Eberly to find the proposed lane signage.) You’ll see we’ve talked about restriping the pavement there to allow for a left turn lane going northbound in there. I believe Mr. Eberly said INDOT is agreeable to that.
(Mr. Eberly stated that he is correct.)
Do they have anything in writing, or do you have anything in writing, or the consultants, that says this is a good idea and we’re agreeable to doing this on this?
(Mr. Eberly responded that he has an email from the La Porte District Director indicating that it meets with his approval; however, it is not in any set of plans as yet.)
And is that – is that up to INDOT to restripe that whole area then to – to bring those lanes into configuration.
(Mr. Eberly responded that INDOT will require that it is striped to their specifications; however, he believes it will be the petitioner’s responsibility to do and/or pay for the striping.)
(Mr. Kennedy asked if that would be handled at the Plan Commission level. Mr. Panczuk responded that it would be a contingent on our approval of the Special Exception.)
And the – the reason DNR is concerned with that because, without doing anything, people that are turning left, going north into that subdivision, they back traffic up. And people being people, they just, kind of, go around on the side. Yes, we put in a – a 4-foot temporary passing shoulder when “IDOT” improved that, but that’s not up to INDOT’s standards. It was just something they did on our request. So we’re trying to – to minimize that, people going around right-turn business over there; and this is the idea that we discussed and seems to be most favorable.
Um, Chris is that – is there going to be permanent structures there or is it just going to be striping, um, on US 231 – or Mr. Eberly do you know?
(Mr. Eberly responded that there will be both striping and delineator barriers.)
So if – if that is what is acceptable to the BZA, that is what the DNR would prefer is that kind of, um, setup and contingent upon whatever approvals you give that that be done at that location to help us with some – some traffic congestion going on there.
You heard there was much discussion about lighting, and it’s about the insects using the area. Um, I found out some more details They’re going to use, um, it’s 3000 Kelvin, which is kind of more toward the yellow end of the spectrum. It’s not the really bright, clean lights that you see in here or at Coyne’s veterinary clinic, which I noticed tonight when I drove up here; it’s like whoa! Um, so they’ve really addressed that. It’s – and when it comes to lighting, it’s not only what color lights you’re using, but how the lights are directed and how much light escapes from the property itself. Um, so we like the idea that they’re going to use 3000 Kelvin in LED lights with directional straight down rather than allowing the light to escape on that thing.
Um, the wall or the south windows slanting in was another effort to cut down on reflection or polarization – is that the correct term – to – that would draw the insects there as well.
Um, Chris, have you done anything with reflective services off of the ground itself and the building, or not?
(Mr. Kalischefski responded that they are considering rouging the surface of the asphalt and/or using an optional granular additive to reduce the reflectiveness.)
The other thing we’re talking about right now, gentlemen, is – is the pavement itself tends to reflect light; and light is the key thing for all these insects we’re concerned with; so they hopefully can do something, um, that way as well. Uh, but then my question, again, is are these all contingencies that would be part of your approval if you do approve it? Or would it be something that the consultant says, yes, we’re going to do this but may not happen? I want to, you know, I’m – I’m hoping that what they say will happen; but how does that happen?
(Mr. Panczuk stated that whatever the BZA deems necessary to be done will be placed as a contingency or contingencies on the approvals.)
I mean, the DNR would like to see that, that those all be met as – as it’s developed. Um, the last thing we talked about in our meeting was landscaping, and I’m much more comfortable with their landscaping plan this time around.
But Jim, I do have a couple of tweaks, maybe, on the berm and what might be used for planting, particularly in the light of Mr. Lareau’s comment about salt and, um, things dying on that one.
Um, I was hoping the berm could be higher, but there appears to be constraints in there as to how high they can go because of the width that they have to work with. Again, what – what I’m trying to address there – and this comes out of talking to Illinois people that worked with WT on a different gas station – was actually the headlights shining out. And, um, I think you’ve all seen vehicles these days; the headlights are getting higher and higher on some of these trucks and SUVs and – and things like that.
So that’s what the berm idea was about is trying to cut off some of that headlight light that might be escaping from the property, as well as the landscaping that will be used on top of the berm. So I like the berm idea. I have a few tweaks to make with, um, the consultants about what is actually planted on top of the berm; but I like that as well.
So that’s basically my comments, trying to lessen some of the impacts to the State nature preserve across the street from this property. And I appreciate the opportunity to sit down with the – the owners and the consultant. All that being said, though, that doesn't mean that the DNR is saying, “Yes, we think this is a great idea here.” I’m still curious or wondering if there might be other options for developing on this corner that may be more compatible, in terms of less traffic congestion, less lighting, and that kind of stuff.
So yes, we’ve worked with them, but we’re not going to say, “Yes, we approve of what they want to do on this corner.” So that’s my comments for the evening. Thank you for letting me address you again. I appreciate it.
Having no one else wishing to speak, Mr. Panczuk closed Public Hearing.
Mr. Lareau stated that he is concerned with the overall amount of signage. He is fine with the canopy signage, but not the total amount. He asked if perhaps a compromise could be had.
Mr. Eberly advised that per Ordinance the wall signage is allowed to be 1 square foot of size per each linear foot of frontage of the building. The wall signage they are proposing meets the standard and is right at 1 square foot per linear foot of building. The monument sign meets the standard at 30 square feet. The two canopy signs don’t meet the standard; and they are requesting that the monument sign in addition to wall signs, so that’s where the 179 square feet comes in to play, where 100 square feet is what is allowed.
Mr. Lareau stated that he has no problem with the monument sign; but the overall square footage is what was throwing him.
Mr. Panczuk stated that this has multiple businesses, and none of the wall signs have anything to do with the gas station itself. The gas station has a canopy with signs facing north and south, which is fine for westbound traffic on US 231 and the northbound and southbound traffic on US 41; however, eastbound traffic on US 231 will not have visibility of any of the gas station signs but will have visibility of the monument sign as they approach the intersection. Mr. Panczuk stated that he sees the hardship where they need the three signs for the gas station as well as the three signs for the various businesses.
Mr. Lareau stated that he was mostly concerned with the total square footage; however, with all the other aspects laid out, he is fine with it.
Mr. Lareau asked if there is a concern about the lighting amount. Mr. Panczuk stated that originally, they had a diesel canopy with 30 feet less of grass in front and the lighting was significantly higher. The petitioner has gone in the right direction, and most of the excess lumens are under the canopy.
Mr. Panczuk stated that he typically worries about excess light spillover onto other properties, and the only spillover is to the east on that private road, which he is fine with that being lit. If it didn’t have spillover there, streetlights might need to be installed, so it serves a function. Mr. Sheeran stated that he’s sure the bank won’t mind the extra light.
Mr. Eberly stated that the original version had approximately 323,000 lumens, which has been reduced to 211,000.
Mr. Panczuk asked what the height of the berm is. Mr. Kalischefski responded that they can only get a 3:1 slope and they have 6 feet; so the berm is 1 foot. Mr. Panczuk stated that he thought they had 10 feet there. Mr. Kalischefski responded that when you come in and start, you get the 3:1 slope. He stated that they will try to get it as high as they can.
Mr. Kalischefski asked if they could to a 4:1 slope. Mr. Eberly stated that it has to be able to be mowed, and they will be the ones mowing it. Mr. Panczuk stated that he would prefer to have more of a berm to help protect the nature preserve to the south.
Mr. Sheeran asked if there is a schedule for when they plan on doing the work on US 41. Mr. Eberly responded not yet as the BZA will make a recommendation to the Town Council on the Special Exception, and if the Town Council doesn't approve this, it will not go forward.
General discussion ensued regarding delineators.
Mr. Panczuk explained that the US 41 Overlay District Ordinance is designed for larger scale properties with larger buildings and larger lots.
Mr. Panczuk stated that there was talk about turning the building around, and the BZA discussed the Casey’s in Valparaiso, at Sturdy Road and US 30, at the December meeting. The building was turned around, and it looks strange. The service doors are facing US 30, and it’s just ugly.
Mr. Panczuk shared his thoughts on the Special Exception hurdle that he has had, as he is typically against gas stations. Mr. Panczuk stated that when Circle K was trying to build in town, the remonstrators said they would like a gas station but indicated that they wanted it down at the south end of town; and for him to be in favor of a gas station, it has to pass many hurdles.
Mr. Panczuk noted that he did an exercise with Mr. Eberly, via email, to see what could fit on this parcel other than a gas station. The property being only 1.4 acres in size is an issue, and there isn’t anything else that will fit there properly. In order to have another type of business there such as a restaurant or a drug store, the buffer would almost have to be completely removed to provide enough parking.
Mr. Panczuk commented that this petitioner has done a good job mitigating all of the concerns. Mr. Lareau added that they have come a long way since the first meeting.
Mr. Lareau stated that the gas stations presently in town on US 41 are bad and deplorable, and he wants to make sure it will be maintained.
Mr. Manhani stated that they own the BP gas station in Dyer on 81st Avenue, which is an 18-year-old property. They refresh the blacktop every year and keep that location maintained, so it is a good indication of how they take care of their property. Mr. Manhani stated that they would like the proposed gas station to be a BP as well, but with BP’s gas prices, they wouldn’t be able to compete.
Mr. Svetanoff advised the members to keep in mind that it will be local ownership that’s going to be owning and managing the property; so they have a vested interest in the upkeep of the property.
Mr. Lareau stated that the property where they will build is the first thing folks see when entering the town from the south, and folks he spoke with said the gas station is fine, but they reference the other two currently on US 41. Mr. Svetanoff responded that all you can hope for is responsible ownership to come in and do the job necessary; and these gentlemen run a lot of centers. BP is a fine example of the job they’ve been able to do in the communities that they serve.
Mr. Panczuk stated that it is the best scenario when it’s someone who lives in town as it is their front yard as well.
Mr. Panczuk asked if outside storage, such as propane, firewood, etc., is allowed in St. John. Mr. Eberly stated that there are some exceptions to that, but generally, they are not allowed. Mr. Panczuk advised the petitioners that no outside storage is allowed.
Mr. Panczuk asked the board for any questions or comments on the Special Exception request. Hearing none, he stated that he would entertain motions and deferred to Mr. Eberly and Mr. Svetanoff for the easiest way to get through the variance requests if the board is in favor of them.
Mr. Eberly advised that he prepared a Findings of Fact for each of the Developmental Standards Variance requests. Mr. Svetanoff advised that the motions would need to be made subject to Town Council approval of the Special Exception.
Mr. Panczuk stated that they will address the Developmental Standards Variances first in groups.
Mr. Kennedy asked if the Findings of Fact can be referenced if it is a favorable motion, or if they have to be verbally listed. Mr. Svetanoff responded that the Findings of Fact can be referenced; however, if there are any contingencies or special conditions; they must be noted within the motion.
Motion to approve the following Developmental Standards Variances:
1. Relief from Chapter 8, §§ 8.4, E.1 and 8.5, E.1; allowing a lot size of 1.4 acres;
2. Relief from Chapter 8, §§ 8.4, F.5 and 8.5, F.5; allowing a building size of 4,925 square feet. gross-floor area;
3. Relief from Chapter 6, § 6.2, J; Chapter 8, § 8.4, K.2; Chapter 10, § 10; allowing building materials to be a 4”x16” concrete block, in a reddish color that looks like clay brick with a split-face concrete block base around the building;
Referencing Findings of Fact; all of which is contingent upon the windows being sloped to minimize light refraction and reflection and the Town Council’s approval of the Special Exception for an automobile service station, by Mr. Kennedy. Seconded by Mr. Lareau. Motion carries 5 ayes to 0 nays.
Motion to approve the following Developmental Standards Variances:
1. Relief from Chapter 8, § 8.4, G.2; allowing 13 parking spaces along the south property line along the front-yard setback form US 41;
2. Relief from Chapter 10, § D; allowing impervious surface of 69.9 percent per lot area;
Referencing Findings of Fact; all of which is contingent upon the Town Council’s approval of the Special Exception for an automobile service station, by Mr. Kennedy. Seconded by Mr. Lareau. Motion carries 5 ayes to 0 nays.
Motion to approve the following Developmental Standards Variances:
1. Relief Chapter 13, § 0.3 A; with no plantings required on the west elevation of the building;
2. Relief from Chapter 13, § 0.3 B; with no plantings required along the south elevation of the building;
3. Relief from Chapter 13, § P.2 V; with no landscape island required in the parking spaces along the west side of the building;
Referencing Findings of Fact; all of which is contingent upon the Town Council’s approval of the Special Exception for an automobile service station, by Mr. Kennedy. Seconded by Mr. Lareau. Motion carries 5 ayes to 0 nays.
Motion to approve the Developmental Standards Variances for relief from Chapter 14; §§ C.1, C.2, and C.4; allowing 211,582 total lumens with 136,740 lumens under the canopy; allowing up to 17- foot candles on the drive aisles; and allowing the maximum amount of light emitted onto adjacent rights-of-way, not exceeding 1.4-foot candles, referencing Findings of Fact; all of which is contingent upon the petitioner using 3000 Kelvin light color as specified and the Town Council’s approval of the Special Exception for an automobile service station, by Mr. Kennedy. Seconded by Mr. Lareau. Motion carries 5 ayes to 0 nays.
Motion to allow 2 canopy signs at 25 square feet, one on the north side and one on the south side; 3 wall signs; and 1 monument sign; total signage square footage shall not exceed 179 square feet; Referencing Findings of Fact; all of which is contingent upon the Town Council’s approval of the Special Exception for an automobile service station, by Mr. Kennedy. Seconded by Mr. Lareau. Motion carries 5 ayes to 0 nays.
Mr. Panczuk stated that Mr. Lareau had mentioned the asphalt to him and asked the board for their thoughts. Mr. Kennedy asked if the special asphalt to minimize light refraction and reflection needs to be made a condition of a motion.
Discussion ensued; and Mr. Eberly advised that they could address the asphalt at the Plan Commission level. Mr. Svetanoff stated that the petitioner is taking in all the information right now and will likely try to fit this into their business plan; and before they appear before a board or commission again, they will figure out something to work with the Indiana DNR and the Town to accommodate any and all concerns.
Mr. Panczuk entertained a motion for the Special Exception, Chapter 3 § E for an automobile service station in a C-2 and US 41 Overlay District, with the contingency that the turn-lane improvements and safety barriers as outlined in the plan presented tonight be a contingency on that approval.
Motion to send a favorable recommendation to the Town Council for the Special Exception variance request from Chapter 3, § E, to allow an automobile service station in a C-2 and US 41 Overlay District; referencing Findings of Fact; contingent upon a minimum of 150 linear feet of delineators be installed along US 41; a minimum of 250 linear feet of delineators be installed along US 231, to deter left-hand turns; and the proposed restriping along US 231 creating a left-turn lane for the private drive and Schneider Place be completed by Mr. Kennedy. Seconded by Mr. Lareau. Motion carries 5 ayes to 0 nays.
Discussion ensued; wherein, the members agreed upon the date of March 12, 2019, at 6 p.m., in the Town Hall Public Meeting Room.
Respectfully submitted;
Margaret R. Abernathy, Recording Secretary
St. John Board of Zoning Appeals
| Paul Panczuk, Chairman | Drago Popovic | Rick Eberly, Building & Planning Director |
| Mark Lareau, Vice Chairman | Brendan Sheeran | Joe Svetanoff, Town Attorney |
| John Kennedy, Executive Secretary |
(The Pledge of Allegiance was recited by all.)
Mr. Panczuk welcomed everyone, gave a brief introduction, and turned the floor over to Mr. Eberly.
Mr. Eberly stated that the members have a printout in front of them of the training PowerPoint Presentation in the event they wish to make notes by any of the slides as it is gone through.
Mr. Eberly stated that they have a copy of the Rules and Regulations of the Board of Zoning Appeals, which were revised and adopted April 24, 2017. In August of 2017, the Plan Commission Rules and Regulations were so that both sets of rules and regulations are as uniform as possible. The boards have different tasks; however, public hearing notification is the same for both boards.
Mr. Eberly discussed the Zoning Ordinance binder and then read through the first few slides.
Slide 1:
The BZA adopted its latest set of Rules and Regulations in April of 2017. That document describes the conduct of meetings, how and to whom petitioners must give public notice of public hearing matters, election of officers, etc.
Slide 2
During a public hearing the petitioner presents its case to the BZA and engages in a discussion with the members on the subject matter. The BZA then opens the public hearing for comment. At the conclusion of the public comment the public hearing is typically closed and the petitioner has the opportunity to address the comments.
Mr. Eberly stated that the public is supposed to direct its questions to the board; they are not supposed to turn around and talk to the petitioner. However, that does happen from time to time. Once the public comment period is finished, we typically close the Public Hearing. Mr. Panczuk will reopen the Public Hearing as necessary to make sure the public has its chance to speak on a matter.
Slide 3
Any decision by the Plan Commission, Legislative Body or Board of Zoning Appeals can have Judicial review if filed within 30 days per I.C. 36-7-4-1600
Mr. Eberly explained that he does not quote the Indiana Code often, but the Indiana Code regarding the BZA can be found at Indiana Code 36-7-4-900, the 900 series of the Indiana Planning Law talks about the makeup of the Board of Zoning Appeals and what its duties and responsibilities are.
Mr. Eberly stated that he is going to start with the questions for training. The members, especially the new members, are not expected to know the answers.
(The balance of the slides that were presented are in Q&A format below. Unless otherwise noted, the paraphrased comments were spoken by Mr. Eberly. )
Q. Does the BZA hear variance requests relative to the Subdivision Control Ordinance Regulations?
A. No. The Plan Commission rules on the Subdivision Control Ordinance. The BZA hears variance requests from the Zoning Ordinance regulations.
The Zoning Ordinance consists of a number of ordinances, the Sign Ordinance, Landscape Ordinance, the Parking Regulations, etc., and is an all-encompassing ordinance.
Q. Does the BZA conduct rezoning public hearings?
A. No, the Plan Commission does that.
This can be confusing since it is called the Board of Zoning Appeals. The BZA does not rezone property. You conduct Public Hearings related to developmental variances, for things like building heights, setbacks, parking spaces, landscape, lighting, and a whole host of things; use variances; special exceptions; and appeals of decisions made by administrative officials.
Q. The BZA conducts Public Hearings on:
Development Standards Variances
Use Variances
Special Exceptions
Appeals of decisions made by administrative officials
Of these 4 matters, which does the BZA have exclusive jurisdiction over?
A. Development Standards Variances and appeals of administrative decisions.
The BZA makes recommendations to the Town Council on Use Variance and Special Exception requests, and the council then makes the final decision. That only applies in Lake and St. Joseph counties. In the other 90 counties in Indiana, the BZA has exclusive jurisdiction over all matters that it hears.
The Town Council can go along with the BZA’s ruling, or they can overrule it. That only happens in Lake County and in St. Joe County in Indiana. The BZA of the other 90 counties in the state have exclusive jurisdiction over every matter that it hears.
Mr. Panczuk referenced the Lucky Brothers’ Special Exception variance for their gas station in the US 41 Overlay District. The BZA made a favorable recommendation to the Town Council; and the Town Council could have decided that they didn’t want it and flipped it. Mr. Panczuk stated that the Lucky Brothers also had a number of Developmental Standards Variances that, if not approved, could have kept them from building.
Mr. Eberly reviewed Slide 10:
A Development Standards Variance is for things such as building heights, setbacks, building size, building materials etc.
A Use Variance would allow, for example, a C-3 use in a C-2 zoning district.
A Special Exception is a use listed in a given zoning district in the Zoning Ordinance that must meet certain criteria prior to being able to be operated.
You will see the Schedule of Uses in Chapter 3 of the Zoning Ordinance. If a use is not listed in a zoning district, then it needs a Use Variance in order for that use to be conducted in that particular zoning district.
An Appeal from an Administrative Decision is a request by an aggrieved party contesting a ruling made by a town official.
Mr. Eberly introduced Sue Zerante, his administrative assistant, and Mary Philbin, Code Enforcement Officer. If Mary makes a determination in doing her job that somebody contests, they can actually bring that to the Board of Zoning Appeals and say she’s not interpreting the ordinance correctly.
Q. Once the BZA certifies its recommendation on a Special Exception or Use Variance to the Town Council, the council has 90 days to act on the matter.
What happens if the council fails to deny the petition within that 90 days?
A. The request would be approved regardless of the BZA recommendation.
Even if the BZA makes an unfavorable recommendation to the Town Council on a matter, if the Council doesn't act on it and doesn't deny it within 90 days, it is approved as requested by the petitioner.
Mr. Lareau asked if it has ever happened. Mr. Eberly responded that it has not happened in St. John in the past 2-1/2 years that he has been here; however, Dyer had a rezoning with a favorable recommendation from the Plan Commission that the council failed to act on within 90 days. The council in Dyer did not want to approve it, but lost its opportunity to deny it because it didn’t act on it within 90 days.
Mr. Eberly passed out the findings of fact for each of the variance types for review.
The Developmental Standards Variance and the Use Variance criteria are established by State law, so we don’t make those up.
The individual municipalities are free to make their own list of Special Exception criteria, and we have done that. Our criteria are different from Dyer’s, and Dyer’s criteria are different than Schererville’s.
Q. Sally Johnson has applied for a Development Standards Variance in order to build an oversized garage on her property. She placed the proper notice in the newspapers, filed her application in a timely manner and paid the application fee. At the meeting, it is discovered that she did not mail the notices out to the adjacent property owners. Can the public hearing proceed?
A. No. Notice to adjacent property owners much have been mailed in a timely manner. Same applies to PC public hearings.
We require a 15-day notice for public hearing, by either the Plan Commission or the BZA. The petitioner must mail a certified letter, return receipt requested, at least 15 days prior to the Public Hearing. It must be postmarked 15 days prior to the Public Hearing. The petitioner must put a notice in two newspapers, specifically the Times and the Post Tribune, 15 days prior to the Public Hearing. A sign must be posted on the property indicating that they are coming for a Public Hearing at least 15 days in advance.
Public Works makes the sign and lets the petitioner know when it’s ready to be picked up. The petitioner picks it up and posts it on their property.
Mr. Kennedy asked if we have approved allowing a petitioner to move forward when they haven’t met the 15-day minimum requirement. Mr. Eberly responded that the State law required a 10-day notice. We have gone above and beyond that. We can’t waive a State law, but we can waive one of our rules; any rule can be waived at a meeting by a majority decision.
Q. Speaking of timely notice requirements, how far in advance of a meeting must the notice be published in the newspapers at a minimum?
A. 15 days – same applies to PC.
Q. In what newspapers must the notice appear?
A. The Times and the Post Tribune. Same applies to PC. The particular newspapers are chosen by the Town Council at the beginning of each calendar year.
The State law says it has to be a newspaper of general public circulation published at least on a weekly basis in the county in which the municipality resides. We use the Times and the Post as they are daily newspapers.
Q. How far in advance of a public hearing must notices be sent to adjacent property owners?
A. They must be post marked at least 15 days prior to the date of the public hearing. It should be noted that the date that is used is the date the Post Office stamps on the white mailing receipts rather than the date that they either actually attempt to deliver the letter or the date that the letter is signed for. The petitioner cannot be held responsible for postal delays or unsuccessful delivery attempts. Again, same applies to PC.
It must be postmarked 15 days prior. If the post office takes 5 days to get the letter to the receiving party, or if it never gets there, we don’t hold the petitioners responsible for that. Once they put it in the US Mail, it’s out of their control.
When the petitioners send out their mailings, they get a white receipt where the post office stamps the date the notices are mailed. If they never get the green cards back, that cannot be held against them. By showing the white receipt, a petitioner is showing that they’ve mailed the notices in a timely manner.
Q. If an adjacent property owner appears at a meeting and declares that they did not receive proper notice of the hearing and it is discovered that they are not on the list of property owners provided to the petitioner by a source approved to provide such lists, does this invalidate the hearing?
A. No. For one thing, the fact that the person is at the meeting is presumed to be evidence that they did receive notice whether that notice was timely or not and such would not be reason to invalidate the hearing. Additionally, the petitioner is not held responsible for the mistakes made by the entity providing the list, provided that the entity is one of the approved providers as listed in the BZA rules and regulations.
If the St. John Township Assessor’s Office leaves somebody off the list, that can’t be held against the petitioner. Again, it must be a list provided by one of the approved providers as listed in the rules and regulations. The petitioner can use an attorney, a civil engineer, title company, or the assessor’s office to get the list of adjacent property owners.
Mr. Kennedy asked why we would hold it against a petitioner if the newspapers make the mistake of not running the notice on time when they received the information in a timely fashion to post said notice. Mr. Eberly responded that it is the board’s decision to make; as long as that notice is published between 10 and 14 days, you must decide as a body whether or not you to waive that rule. It takes a majority vote of the members to waive that rule; it does not have to be unanimous.
Mr. Eberly stated that the sign is 12 square feet. The petitioner must put it on the property where it can be seen by the public at large. The Building & Planning Departments fills out the form and faxes it to Public works. Public Works makes the sign and notifies the petitioner when it is ready to be picked up. The petitioner gets the sign from Public Works and posts it on the property.
Q. Can the BZA make its decision/recommendation conditioned on approval being granted to the specific petitioner and not to the property in general?
A. No. The decision or recommendation needs to be made for the property in question and not for the specific petitioner. For example, you either feel that a cell tower is an appropriate use on a residential lot or not. Your decision should not be dependent upon who the petitioner is.
The answer is no. The decision is made relative to the property in question, not for the specific petitioner. If it happens to be somebody we all know and like, we can’t grant a variance based on that. You must consider whether or not it is applicable or appropriate for the property in question.
Once the variance is granted, it runs with the property. It cannot be made specific to a petitioner, which is why Paul was particularly careful with Lucky Brothers. If we grant all the variances, it applies to the property, even for the next person who takes over that property if Lucky Brothers never develops the property.
Q. There are three statutory conditions that must be considered in a Development Standards Variance. Which of the following are those three conditions?
The approval will not be injurious to the public health, safety morals, and welfare.
A majority of adjoining property owners must be in favor of the request.
The use and value of the area adjacent to the property included in the variance will not be affected in a substantially adverse manner.
Development standards cannot be exceeded by more than 20 percent.
The strict application of the terms of the Zoning Ordinance will result in the practical difficulties in the use of the property.
A. The approval will not be injurious to the public health, safety morals, and welfare.
The use and value of the area adjacent to the property included in the variance will not be affected in a substantially adverse manner.
The strict application of the terms of the Zoning Ordinance will result in the practical difficulties in the use of the property.
Mr. Popovic asked if it is written in stone that it transfers with the property or if it could be made conditional. Mr. Eberly responded that the law says you are supposed to grant the variance with the property in mind, not the petitioner in mind.
Mr. Panczuk noted that for the Lucky Brothers Developmental Standards Variances, they were all made contingent on the Special Exception being approved by the Town Council so if Town Council turned down the Special Exception, all of the Developmental Standards Variances would have dissolved.
Many times the public wonders why we are even hearing petitions, and the answer is that we have no choice. Property owners have a right to ask for the ability to build a “cell tower” in their back yard that is 300-feet tall. They’re not going to get it, but they have a right to ask for it. People assume that when they are sitting in the audience that this board is just going to grant the approval and that the petitioner is just going through the formality of asking, which is far from the truth.
The same thing is applicable for the Plan Commission. People don’t know that, but some will make that assumption.
Q. There are five statutory conditions to consider in hearing a Use Variance. Which of the following are the valid conditions to be considered?
The approval will not be injurious to the public health, safety, morals, and welfare.
The highest ranking elected official must approve the request.
The use and value of the area adjacent to the property included in the variance will not be affected in a substantially adverse manner.
The use must not be prohibited in the particular zoning district.
The strict application of the terms of the Zoning Ordinance will result in an unnecessary hardship.
The need for the variance arises from some condition peculiar to the property involved
The approval does not interfere substantially with the Comprehensive Plan
All five members of the BZA or of those present (assuming a quorum is reached) must approve the request
A. The approval will not be injurious to the public health, safety, morals, and welfare.
The use and value of the area adjacent to the property included in the variance will not be affected in a substantially adverse manner.
The strict application of the terms of the Zoning Ordinance will result in an unnecessary hardship.
The need for the variance arises from some condition peculiar to the property involved.
The approval does not interfere substantially with the Comprehensive Plan.
Mr. Panczuk reviewed and reinforced the differences and commonalities between the types of variance requests for the members.
Q. True or false. There are no statutory conditions to consider in making a recommendation on a Special Exception request?
A. True. The town is free to develop its own set of criteria to consider in the case of these requests. We have established 7 criteria listed in our Zoning Ordinance at section 18D.6b.
The criteria or conditions in the Findings of Fact for a Special Exception Variance are made by the Town and are not conditions listed in State law.
The three conditions for Development Standards Variances and the five conditions for Use Variances are listed in State law.
Q. Can the BZA grant/recommend approval for a Use Variance for a use that is specifically prohibited in a given zoning district?
A. Yes.
That would be a Use Variance.
Q. State law requires that “interested parties” be given notice of a public hearing before the BZA (and Plan Commission). Who determines who “interested parties” are and how they are notified?
A. State law provides that the municipality can make that determination. We define “interested parties” in the Rules and Regulations for both the BZA and the PC.
That is left up to us, and we do that in the rules and regulations. We have identified that people within 300 feet of the boundary of the property that is the subject of the petition that’s before you must be notified by the three ways that were mentioned: letter, notice in the newspapers, and the sign on the property.
Mr. Kennedy asked if we exclude street in that distance. Mr. Eberly responded that the street does not count as a buffer, so you treat it as though it is not there.
Q. Can BZA members discuss a pending agenda item (petition) outside of the confines of the actual meeting?
A. Only with BZA staff (Board Attorney, Director of Building and Planning, Town Manager). They cannot discuss such matters with the particular petitioner or general public. This is referred to as ex-parte communication and is prohibited by state law.
The BZA can discuss a petition with me, but you’re not supposed to discuss those matters with the particular petitioner or general public outside of a meeting. It is ex-parte communication and is prohibited by State law.
Mr. Kennedy asked if they can discuss it each other. Mr. Eberly responded that any two of you can get together and talk about it. If any three of you gets together, that’s a meeting; and you can’t do that without notice.
You can discuss it with each other; you can visit the site and look at it; but you shouldn’t discuss it with any members of the general public or, particularly, the petitioner outside of the meeting. The Plan Commission can do that, but the BZA is a quasi-judicial body.
Mr. Panczuk noted that the members are allowed to discuss whatever is for public knowledge. If a neighbor said they heard there is a treehouse on the agenda. You can say, yes and that they can go see Rick Eberly in Building & Planning to see the plans. If someone asks what you think of it, that is where you stop.
Sue keeps a copy of all the packets so that if someone comes in when I am not there, she can share it with them and allow them to look at it.
Mr. Kennedy stated that Mr. Eberly has helped him many times in the past and will sit down and chat with any of the members and advise what rules and laws apply to a petition; however, he doesn’t tell you what you should think or decide.
You are all intelligent and can make your own decisions. I believe in providing you with the information. If you, as a BZA, ever want me to make a recommendation, I will. I don’t feel it is my position to try to sway anybody. My job is to give you as much information as I can to help you make the decision you want to reach.
Q. Can the BZA impose reasonable conditions on the approval of a Special Exception?
A. Yes per I.C. 36-7-4-918.2
Q. Can the BZA impose reasonable conditions on Use Variance requests?
A. Yes per I.C. 36-7-4-918.4.
Q. Can the Town Council change, add to, or delete the reasonable conditions that the BZA attached to a recommendation?
A. Yes. The Town Council is the adjudicatory body of the town and is free to change any such condition they choose.
When I first developed the training materials when I was in Dyer, the answer to that was no; and the town attorney in Dyer is the one who told him that. When I got here, Dave Austgen said yes, the Town Council is the adjudicatory body of the Town and is free to change any such condition they choose. I have not had a chance to speak with Joe Svetanoff to see if he agrees with that.
I will say something that I mentioned earlier, “Can the BZA grant a use variance to a use that is prohibited in a zoning district?” When I was with Dyer, Dyer’s town attorney, Bill Enslen took the position that you cannot grant a variance to a prohibited use. If the use isn’t listed as an allowable use or special exception in a zoning district, that is one thing; but when it’s listed as a prohibited use, we took the position over there that you could not seek a variance to it.
Dave Austgen’s opinion was different, and Dave’s firm represented the Town, so Dave was the final answer on that. That could change per the attorney’s opinion.
Q. Can the BZA impose reasonable conditions on Development Standards Variance requests?
A. Yes, per I.C. 36-7-4-918.5.
Mr. Panczuk stated that if the BZA feels strongly about a contingency, we tie the Development Variance to the Special Exception, and back and forth, so the Town Council can’t unwrap it if we’re worried about a serious safety-related issue like the US 41 and US 231 improvements.
Mr. Eberly provided scenarios for discussion.
Scenario #1
Henry Ford appears before the board to petition for permission to build an auto sales lot at the northeast corner of W. 85th Avenue and US 41. The property is zoned C-3 and is also located in the US 41 Overlay District.
Q. Does he need a variance, and if so, what type of variance is he seeking?
Special exception
Use variance
Appeal of an administrative decision
Development standards variance
None of the above
A. C3 zoning allows auto sales by right; however, that land is also in our US 41 Overlay District which requires such a use to seek a Special Exception.
We found that happed with the Lucky Brothers; two of the three zoning districts in which that property resides required a special exception for a gas station. The US 231 Overlay District allows it by right. Because the C-2 and the US 41 Overlay District require a special exception, they had to request a special exception.
Mr. Panczuk advised the members to mark the chart of Uses for reference in Chapter 3.
Q. What document(s) would you research to determine the type of variance request?
Subdivision Control Ordinance
Zoning Ordinance
Comprehensive Plan
The Magna Carta
A. Zoning Ordinance. Specifically Chapter 3 Section E Schedule of Uses.
Q. What authority does the BZA have in hearing a request for a Special Exception?
Power to grant or deny the request
Power to make a recommendation to the Town Council on the request
No authority at all
A. Power to make a recommendation to the Town Council.
This is a special exception, so you are making a recommendation to the Town Council. You have three options: You can make a favorable, unfavorable, or no recommendation to the Town Council. You can punt all together and just let the Council make the decision if you’d like.
Mr. Kennedy asked what a 2-2 vote would result in. Mr. Eberly stated that is a no recommendation.
Q. Match the statutory findings with the particular variance request (Special Exception):
Not injurious to public health, safety and welfare
No substantially adverse effect on the adjacent area
Hardship
Practical difficulty
None of the above
A. None of the above. Special Exception criteria are determined by the municipality not by state statute.
This is a trick question because special exception criteria are not statutory.
Q. Who has the final authority in this matter?
BZA
Plan Commission
Town Council
None of the above
A. Town Council
Scenario #2
Stardust Corporation wishes to open a bowling alley on Olcott Avenue in an area zoned R-2.
Q. What type of variance would they be requesting?
Special Exception
Use Variance
Appeal of an administrative decision
Development Standards Variance
None of the above
A. Use variance. When a use is either not listed as an allowable use or is listed as a prohibited use in a given zoning district, then a Use Variance would need to be granted before the use could locate in such a zoning district.
Q. What statutory conditions does the request have to satisfy in order for the BZA to grant approval? Check all that apply.
Not injurious to public health, safety and welfare
No substantially adverse effect on the adjacent area
The need for the variance arises from a condition peculiar to the property
Hardship
Does not interfere with Comp Plan
All of the above
A. All of the above
You have the Findings of Fact that have the statutory criteria in them.
Q. Who has the final authority in this matter?
BZA
Plan Commission
Town Council
None of the above
A. Town Council
Scenario #3
Jane Doe wishes to build a room addition onto the side of her house. She is located in an R-1 zoning district. The room addition would be built to within 8 feet of the side property line. The minimum side yard setback requirement in an R-1 zoning district is 10’.
Q. What type of variance would she be requesting?
Special Exception
Use Variance
Appeal of an administrative decision
Development Standards Variance
None of the above
A. Development Standards Variance
Her request is for height and size.
Q. What statutory conditions does the request have to satisfy in order for the BZA to grant approval? Check all that apply.
Not injurious to public health, safety and welfare
No substantially adverse effect on the adjacent area
Hardship
Practical difficulty
None of the above
A. Not injurious to public health, safety and welfare
No substantially adverse effect on the adjacent area
Practical difficulty
State law makes a distinction between a hardship and a practical difficulty. We tend to use those terms as though they are the same; but it’s actually a practical difficulty. It is up to the petitioner to convince you that they meet those criteria.
I always tell the petitioners, “You need to try to convince the BZA that you meet these conditions.” The typical homeowner who is up here trying to make their case don’t do this on a regular basis, so they get lost in the weeds a bit.
Mr. Kennedy stated that Mr. Panczuk is good with reminding us to ask ourselves if it is really a hardship on the petitioner.
Mr. Panczuk stated that we have to ask if it makes the property unusable. Everything we do is a case-by-case basis. We’re supposed to defend this book. We’re standing between everyone that wants to build anything. This book is going to build our town right, and it’s our job to defend this book properly. We need to compare everything they propose. Will following this book make them not be able to build the property? If the answer is no, then you shouldn’t grant the variance.
Mr. Panczuk further stated that if they have something really great to build and there is some technicality in here that is keeping from them building what we all think is really great and it’s causing a hardship, that’s when we kick in our decision making. Everyone that comes in here, you start out at a no, and they have to convince you to the yes.
Q. Who has the final authority in this matter?
BZA
Plan Commission
Town Council
None of the above
A. BZA
The BZA has exclusive jurisdiction over Development Standard Variance requests.
Scenario #4
John Doe wishes to develop a warehouse on property zoned C-2. The proposed use is not allowed in C-2 but is allowed in the Industrial zoning district. The lot is 14,000 square feet in size. The minimum lot size in a C-2 zoning district is 32,000 square feet.
The building will encroach on both the front and rear yard setback areas. It will also be 5 stories high (a total of 55 feet in height). The maximum building height in a C-2 zoning district is 50’.
Q. What type of variance(s) will he need? Check all that apply.
Special exception
Use variance
Developmental Standards Variance
All of the above
In this case they will need a Use Variance for the warehouse use on a property zoned C-2. The rest of those are Development Standards Variances.
A. Development Standards Variance for lot size, building height and setback relief
Use variance to allow an Industrial use in a C-2 zoning district
The BZA decides the Development Standards matters.
Q. What are the reasons for each of the variances?
A. Lot is too small, violates front and rear yard setback regulations, building is too tall
The use is not listed as a permissible use in the C-2 zoning district
Q. Who has authority over each of the variance requests?
A. The BZA has authority over the Developmental Standards Variance requests.
The Town Council has the ultimate authority over the Use Variance request.
Scenario #5
A town official has a temporary development sign removed from the premises at 9800 Joliet St. due to a lack of a permit for the sign. The owner disputes the removal claiming that the sign ordinance allows the placement of such a sign without a permit. Rick refuses to allow the replacement of the sign and insists that a permit must be obtained by the owner prior to putting up a new sign. The owner appeals to the BZA for help.
Q. What type of action is being sought?
Special Exception
Use Variance
Appeal of an administrative decision
Developmental Standards Variance
None of the above
A. Appeal of an administrative decision
They think the public official is misinterpreting the ordinance.
Q. Who has the final local authority to rule on such matters?
BZA
Town Council
Plan Commission
Police Commission
A. BZA
In the case of an administrative appeal, it is the BZA that has the final say. And you do conduct those the same as you do any other meeting. They have to advertise, put notice in the newspapers, and do all of those things.
Mr. Eberly turned the floor back over to Mr. Panczuk.
Mr. Panczuk advised that they didn’t use the Findings of Fact as per usual in February and that normally the member making the motion reads through the Findings of Fact.
Mr. Panczuk read through the Findings of Fact as an example for the members and reiterated that it is best to approach everything as a no until the petitioner has really substantiated what the difficulty is.
Mr. Panczuk used the Boyer project at 93rd Avenue and US 41 and the Lucky Brothers’ project as examples to explain the practical difficulty of a lot size smaller than what predates the Overlay District requirement minimum of a 2-acre lot. If the lot isn’t 2 acres, it is a practical difficulty as it is difficult to build a structure of 15,000 square feet on a lot that small. The variance can be granted providing it doesn’t create an issue for another finding, such as the health, safety, welfare, etc.
Mr. Eberly stated that Mr. Panczuk is good about reminding the members that if you deny something, it doesn't mean that it doesn't meet each one of those. Even if you don’t meet one of the criteria, it is reason enough to deny the petition. The petition must meet all three criteria to be approved, but if even just one is not met, the petition is denied.
Mr. Panczuk gave a few examples of previous petitions that appeared before the board and stated that being on this board requires us to exercise patience and restraint as there can be a lot of pressure at times.
Mr. Lareau asked if Mr. Boyer will be back before the BZA again regarding the property at 93rd Avenue and US 41. Mr. Eberly responded in the affirmative.
Mr. Panczuk advised the members that, when Mr. Eberly sends information about a petition, they should look up the rules that apply to any variance being requested.
Mr. Lareau noted that Mr. Eberly had advised him to drive by the property to get a visual of it when he was a new member.
Mr. Panczuk explained that they gave Lucky Brothers definite things that would not allowed and gave them the opportunity to defer, make changes, and come back.
Mr. Eberly advised that starting with the Developmental Standards Variances is key because there could be something in those that could kill the petition, so there is no sense getting to the Special Exception.
Mr. Panczuk stated that public comment is sometimes negative on what we do; however, the purpose of the BZA is to give variances and exceptions as long as the requests meet the criteria. If we make it too difficult to develop a piece of property that makes it undevelopable, we can end up in court for making it unusable.
And, uh, we complained to him, and, uh, he said, “Well, if you pay half of it, I’ll replace it with, uh, better fencing.” Which I didn’t think we should have to do. He was the, uh, business, um.
(Mr. Eberly advised that Lake Central Plaza predates the US 41 Overlay District and the current buffering requirements and explained where Golden Pond is.)
Golden Pond, yeah. Behind Livio’s, in back of Livio’s. Yeah.
(Multiple speakers – indiscernible.)
Denny Meyers.
(Mr. Eberly stated that Denny Meyers developed Golden Pond and is doing the one just south of that too. Mr. Panczuk stated that the BZA defends the book, but they do not write it. The Plan Commission writes it.)
Oh, so I need to go to them?
(Mr. Panczuk responded in the negative)
Oh, okay.
(Mr. Panczuk explained that the Plan Commission writes and revises the Zoning Ordinance. The BZA defends it. If we don’t grant a variance, then it has to be built according to the Zoning Ordinance, and it’s up to the Building & Planning office to ensure it is. Once it is built, it is handed off to Code Enforcement. If there’s something that’s a maintenance issue, it would be Code Enforcement or the Town Manager.)
His new addition, though, uh, there is stockade fence behind his new addition also; and that was under the new overlay.
(Mr. Panczuk stated that the Zoning Ordinance is available on the website and explains how much green space is required.)
Well, he doesn't have that.
(Mr. Panczuk stated that, if Mr. Meyers didn’t want to do those things and came and got a variance, he’s off the hook.)
Yeah, he has an alley and a fence. He, sort of, tries to bend the rules.
(Mr. Panczuk stated that shouldn’t happen and that he can meet with Mr. Eberly regarding what is allowed by way of variances or otherwise.)
And – and also, he – his parking lots go into our pond, his runoff; and uh, I don’t know if you have any pond rules and regulations for homeowners.
(Multiple speakers – indiscernible.)
Well, it was developed that way.
(Mr. Eberly advised that it is where the runoff is supposed to go. Mr. Panczuk stated that Mr. Kraus reviews the stormwater. If it meets code, we have to defer to his professional opinion.)
I see. Yeah, but in your zoning, in your decisions, do you, uh – is runoff important to you, I mean, in your decision making for –
(Mr. Panczuk responded that the BZA doesn't cover that.)
Wow.
(Mr. Panczuk stated that only the Plan Commission covers that.)
Yeah, yeah.
(Mr. Panczuk further stated that runoff is extremely important and there are no exceptions. You have it to have per code.)
Sure.
(Mr. Panczuk stated that we defer to our paid engineer and professional staff to make sure that it meets the requirements. The BZA doesn't address that.)
Yeah, well, as a town, I can see that in the future you’re going to have a lot of problems with ponds, with silt, with –
(Mr. Eberly advised that the Code Enforcement Officer is working on that.)
We have a lot of silt in Golden – in Golden Pond, we have a lot of silt because the parking lots run into our – and we were never told that, when we bought, that our pond –
(Mr. Panczuk stated that it is not this board’s job, but there needs to be maintenance, which is usually an HOA or POA thing.)
Yeah.
(Mr. Sheeran stated that, when his place was built, that pond was probably sized to capture additional acreage later. Mr. Eberly advised that the pond was built for Golden Pond and the commercial development.)
And only the old, old – only the old commercial.
(Mr. Eberly concurred. This development that Denny Meyers is doing has a pond for the new commercial area.)
And that’s going into that pond?
(Mr. Eberly responded in the affirmative. Mr. Sheeran stated that there’s usually a release rate with a pond, and it will eventually release to the north.)
Yeah, it goes up to the north to 77th. Yeah.
(Mr. Sheeran stated that silt shouldn’t be getting in. During construction it’s very difficult.)
Well, it’s because we’ve had a lot of flooding; and you know, once the – it floods, then all of the – the, uh, shoreline just goes right into it.
(Mr. Sheeran stated that ideally once it’s built out, that’s compensated for in the design. For the year or two while it’s getting built, there is going to be some headaches.)
Well, we never had flooding. When he just had the, uh, south side developed, we never had flooding. But when he, uh, paved the north parking lot, then we had a lot of flooding.
And one – one other thing, um, do you require – I – I don’t think you require, uh, fire and, uh, police safety sign off in your decision making. Uh, Schererville does. I know Schererville does for – I don’t know if Dyer does.
(Mr. Eberly responded not usually for BZA meetings; and stated that he has staff meetings with the Police Chief, Fire Chief, and the Public Works Director on Plan Commission proposals to get their input and only occasionally on BZA matters, depending on what it is. Mr. Panczuk stated that Mr. Eberly meets with them as staff. Mr. Panczuk stated that at times a petitioner is asking for a cul-de-sac longer than what is allowed, and the concern is whether or not the Fire Department can get in there.)
Or a narrower road or street.
(Mr. Panczuk added that Mr. Eberly would come back the next meeting with the Staff recommendations.)
And I – I know – I know none of you fellows were, uh, involved in us having to go through a parking lot to get to the stoplight, or an alley, but that’s a pet peeve of mine. I hope you never, ever authorize a subdivision having to go through a parking lot to get to a stoplight.
(Mr. Panczuk stated that is a Plan Commission thing; the BZA doesn't get into that kind of stuff. Mr. Lareau commented that at least there is a choice and they don’t have to risk their lives going southbound on US 41.)
Well, I usually – I still go that way because we have – now we have a middle turning lane.
(Mr. Lareau stated that is true, but he prefers the stoplight.)
Well, if – hey, if they back out of a parking space real fast and you’re going through there and they hit you, it’s not even a police matter. It’s between you and the other person.
(Mr. Sheeran stated that with the fence, he needs to deal with the Town’s compliance officer. Mr. Eberly stated that it depends on what his regulations were.)
Well, it just upset me that Denny Meyers made us pay half of the fee of the fence.
(Mr. Panczuk stated that if it is his property, it’s his fence. He shouldn’t make you pay anything if it’s on his property.)
No, no. Right, right.
(Mr. Eberly stated that he doesn't know whose fence it is in this case, if it is a commercial or residential fence.)
Well, the residents wouldn’t really need a fence. I mean, he’s blocking the commercial property for the – uh, with the fence.
(Mr. Panczuk stated that normally, if he put it up, it would be on his property and be his responsibility.)
It is his property, yeah.
(Mr. Panczuk stated that is something to take up with Code Enforcement.)
Just remember, guys, stand your ground. The future of St. John rests right here with you – you – with your commission.
(Mr. Panczuk thanked him and stated that he agrees.)
Okay. Thank you.
Mr. Panczuk asked if there were any further comments. None was had.
Respectfully submitted;
Margaret R. Abernathy, Recording Secretary
St. John Board of Zoning Appeals
| Paul Panczuk, Chairman | Drago Popovic | Rick Eberly, Building & Planning Director |
| Mark Lareau, Vice Chairman | Brendan Sheeran | Joe Svetanoff, Town Attorney |
| John Kennedy, Executive Secretary |
(The Pledge of Allegiance was recited by all.)
Absent: John Kennedy.
Mr. Panczuk declared the presence of a quorum.
Motion to approve the minutes for the February 25, 2019 meeting by Mr. Lareau. Seconded by Mr. Popovic. Motion carries 4 ayes to 0 nays.
Mr. Eberly advised that all items are in order for the petitioner to proceed.
Mr. Balog stated that he wanted to build a tree house for his children and didn’t know that he needed permission to build a tree house on his own property.
Mr. Eberly displayed the property on the viewing screen and showed the tree where the tree house is being built. Mr. Eberly advised the members that the petitioner has provided pictures of the structure and handed the same to them.
Mr. Eberly asked Mr. Balog if the structure would be kept within the maximum 14-foot overall height, and Mr. Balog told him that it would.
Mr. Eberly advised that it is a 10x12 tree house. That tree house combined with the existing shed on his property would put Mr. Balog over the maximum allowable accessory structure space of 250 square feet, so that is the variance he’s seeking.
Mr. Panczuk asked him if there will be support under the tree house. Mr. Balog responded in the affirmative and stated that as there are no specs for using a tree as a bearing structure, so it will have to be built like a deck.
Mr. Balog stated that the construction of the tree house is not treated lumber, but it will be completely covered with siding and a roof, so it will not be subjected to the weather. Mr. Balog will submit, for the permit, the piers and support as the bearing structure.
Mr. Eberly stated that he has met with the building inspector to talk about the necessary support for the structure.
Mr. Balog stated that he was provided with the specs by the building inspector and that he has to use the specs for building a deck. He will be using piers and redesign the whole thing.
Mr. Popovic asked if it was purchased or manufactured. Mr. Balog responded that he designed and built it himself.
Mr. Balog stated that he went overboard on support. He has been in construction for over 35 years, and he knows what it takes to hold something up. Since the Town doesn't allow the tree to be the bearing structure, he will use four 6x6 posts and support those with 2x12s.
Mr. Balog asked if there is any way he could keep the way he has the tree house supported at this time. Mr. Eberly stated that Mr. Gill has said that Mr. Balog has done a great job of supporting the structure, but we don’t have anything saying how much a tree will support.
Mr. Balog stated that he understands the liability. However, as a property owner, he is liable; so he doesn't understand the grey area and how the Town can say what he can do on his property. Mr. Eberly responded that it is part of the zoning regulations.
Mr. Balog agreed to comply with the decking issue; as far as the existing structure goes, it won’t comply with the decking building code for being treated lumber. It will be covered and will not rot. Mr. Eberly concurred.
Mr. Balog stated that whatever he builds from here on out will be treated lumber.
Mr. Eberly explained that it is a State building code issue. Mr. Eberly stated that Mr. Gill has been a fan of the tree house since he saw it; Mr. Balog just can’t use the tree as the support.
Mr. Panczuk stated that he is fine with this structure putting him over the 250 square feet maximum as that is intended more for someone who wants to build two sheds, three sheds, and it starts looking like a shanty town. This is in a separate category. If the board chooses to approve it, there will need to be a contingency that the additional square footage is allowed only for this particular structure.
Mr. Lareau asked Mr. Svetanoff what the language should be for this contingency. Mr. Svetanoff responded for this petitioner only, for this use only, for this structure only.
Mr. Svetanoff advised that there should be a contingency that he complies with all building codes and the building department.
Mr. Balog stated that he will not take anything out, but he will add whatever he has to add to be in compliance with the specs for a deck.
Mr. Panczuk opened the floor for Public Hearing.
Ed Conn (9227 West 91st Court): So as I have five children through the years, and we’ve built little things here and there, but nothing this size on the property. So without having this Zoning Ordinance in front of me, is it because it’s a ground structure? Whereas if he had a larger tree and it was suitable to be constructed with the wire, cables, and all that, would the Town even have anything to do with that? Or is it structure-wise under this ordinance for either tax reasons, or would he be free to build that? Or is he getting – are you getting complaints from your neighbors cause it’s out in the open?
(Mr. Balog replied, “No complaints; I believe it was the building inspector drove by and saw it and red-lined it.”)
So that’s just my question is clarification, I guess. If it’s a ground structure or if it’s aerial, does that (inaudible) those guidelines?
(Mr. Sheeran responded that it isn’t necessarily because it sits on the ground. It is because it is an auxiliary structure. Outside the main house, you’re allowed X amount of square feet. Mr. Eberly concurred and stated that 250 square feet of accessory structures are allowed on a residential property with a shed being a maximum of 160 square feet and then another 90 feet of some other type of structure.)
Yeah, cause I have – I have a 16x10 shed, so that’s the 160 feet.
(Mr. Eberly stated that is right. If you don’t have a shed at all, a 250-square-foot gazebo or something like that could be built. It is the limitation of accessory building space on a lot that causes this petitioner to be here.)
That’s fine; that was my curiosity from – without looking at the ordinance. Thank you.
Mr. Panczuk closed Public Hearing.
Mr. Balog stated that the exterior will be an aluminum corrugated siding and a corrugated galvanized tin roof. It will be like a barn-red siding. The supports will probably be a split, half log siding type of thing.
Mr. Panczuk asked the board for any further questions or comments. Hearing none, he entertained a motion.
Motion to approve the Developmental Standards Variance for relief from the maximum of 250 square feet of accessory space, including the Findings of Fact: Approval will not be injurious to the public health, safety, morals, and comfort, or general welfare of the community; the use and value of the area adjacent to the property included in the variance will not be affected in a substantially adverse manner; the strict application of the terms of the Zoning Ordinance will result in practical difficulties in the use of the property; all of which is contingent for this petitioner only, upon the use of this structure, and this structure only, and said structure will comply with all building codes, by Mr. Lareau. Seconded by Mr. Popovic. Motion carries 4 ayes to 0 nays.
Respectfully submitted;
Margaret R. Abernathy, Recording Secretary
St. John Board of Zoning Appeals
| Paul Panczuk, Chairman | Drago Popovic | Rick Eberly, Building & Planning Director |
| Mark Lareau, Vice Chairman | Brendan Sheeran | Joe Svetanoff, Town Attorney |
| John Kennedy, Executive Secretary |
(The Pledge of Allegiance was recited by all.)
Mr. Panczuk declared the presence of a quorum.
Motion to approve the minutes for the March 12, 2019 and March 25, 2019 meetings by Mr. Lareau. Seconded by Mr. Sheeran. Motion carries 4 ayes to 0 nays.
Mr. Eberly advised that all items are in order for this petitioner to proceed and reviewed the applicable variance requests.
Mr. Eberly advised that he had received an email in regards to this petition from Mr. Greg Volk, and he wanted to make sure that the petitioner was made aware that no business can be conducted in the structure. Mr. Eberly advised that our ordinance does not allow a home-based business to be conducted out of a detached accessory structure.
Mr. Juan Palacio stated that he wants the structure, which will be a steel pole barn, for personal use only as an extra storage building to store his belongings.
Mr. Eberly asked how many acres the property has. Mr. Palacio responded that records show it is 5 acres; however, the survey says it 4.80 acres or something like that.
Mr. Eberly showed the property lines on the Lake County GIS map and noted that the three lots west of Clark Middle School have some sort of larger outlot building on them.
Mr. Eberly showed where Mr. Palacio would like to build the new structure and gave an overview of the property, including wetlands at the back of the property, which is not where the structure would be built. Mr. Palacio commented that it will be right next to the other accessory building on his property where the pad is.
Mr. Panczuk asked if the pole barn would be built due east of the neighbor’s pole barn. Mr. Palacio responded in the negative and explained that his structure would be built farther north than the neighbor’s structure. Mr. Palacio added that the structure will be 16 feet off of the side property line. Mr. Eberly advised that the code requirement is 5 feet from the side-yard property line.
Mr. Sheeran asked if the neighboring buildings that already exist are taller than 14 feet in height. Mr. Palacio responded in the affirmative.
Mr. Panczuk commented that he drove the area, and he finds no issues with granting this petition.
Mr. Palacio stated that he spoke with his neighbors to see if they were okay with it before pursuing this project.
Mr. Lareau asked if Mr. Palacio is replacing the existing structure or building this in addition to it. Mr. Palacio responded that he his building this in addition to the existing structure. Mr. Lareau asked what size the existing structure is. Mr. Palacio stated that it is a 20x50-foot structure.
Mr. Panczuk opened the floor for Public Hearing. Having no one come forward to speak, Mr. Panczuk closed Public Hearing.
Mr. Panczuk asked Mr. Palacio to confirm that he is not intending to run any business out of the home. Mr. Palacio stated that he is not.
Motion by Mr. Lareau to approve a variance to construct a pole barn on the property located at 8723 West 93rd Avenue, including the following Findings of Fact:
With the following contingency hereby made part of the record:
Seconded by Mr. Popovic. Motion carries 4 ayes to 0 nays.
Respectfully submitted;
Margaret R. Abernathy, Recording Secretary
St. John Board of Zoning Appeals
| Paul Panczuk, Chairman | Drago Popovic | Rick Eberly, Building & Planning Director |
| Mark Lareau, Vice Chairman | Brendan Sheeran | Joe Svetanoff, Town Attorney |
| John Kennedy, Executive Secretary |
(The Pledge of Allegiance was recited by all.)
Mr. Panczuk declared the presence of a quorum.
Motion to approve the minutes by Mr. Lareau. Seconded by Mr. Sheeran. Motion carries 3 ayes to 0 nays with 1 abstention by Mr. Kennedy due to absence from that meeting.
Mr. Eberly advised that all items are in order for this petitioner to proceed.
Mr. Santiago Solis stated that he is requesting to build a pavilion at his new construction home and found out that he needed a variance when he filed his paperwork with Mr. Eberly. Mr. Solis stated that he would be happy to answer any questions.
Mr. Eberly advised that Mr. Solis has received Architectural Design approval from the design committee on April 10, 2019. Mr. Eberly further advised that the patio is compliant with Town regulations at less than 15 percent of the lot size.
Mr. Solis noted that he has to make a slight adjustment and move the patio closer to the corner of the lot on the back side.
Mr. Eberly advised that the requirement is that the structure must be at least 5 feet off the rear and side property lines and that it can’t be on any easements.
Mr. Eberly stated that Mr. Solis is proposing a 360-square-foot pavilion, which is 110 square feet over the maximum allowed for accessory structures. Mr. Eberly explained where Mr. Solis plans to put the pavilion, which is toward the back of the yard, and stated that there is a railroad track to the rear of the lot. Mr. Eberly also showed the proximity of the neighboring properties to the location where the pavilion would be built.
Mr. Panczuk asked what the lot size is. Mr. Sheeran responded that it is nearly 3/4 of an acre. Mr. Sheeran added that where his pavilion will be built can’t be seen from anywhere but the backyard of Mr. Solis’ property. Mr. Sheeran noted that he is very familiar with this home and the site where it is located.
Mr. Kennedy asked how far it would be from the retaining wall to the north property line. Mr. Sheeran responded that it would still be within the property lines and the setback lines. Mr. Kennedy then asked if there would be any walls. Mr. Sheeran responded that there would only be posts and beams.
Mr. Panczuk opened the floor for Public Hearing. Having no one come forward to speak, as there was no public present, Mr. Panczuk closed Public Hearing.
Mr. Eberly advised that the height of the structure will be less than 14 feet in height; therefore, no variance is needed for height.
Mr. Panczuk stated that he feels this is a unique use for the property that our Ordinance doesn't have anything built into it to address this type of structure.
Mr. Eberly stated that it may be something to consider modifying at the Plan Commission level as these structures are typically very attractive. Mr. Panczuk concurred.
Mr. Sheeran commented that the landscaping plan shows that things are being done nicely.
Mr. Svetanoff advised that Mr. Solis is adding to the value of his home and improving the surroundings of the adjacent property owners as well.
Motion by Mr. Lareau to approve the pavilion accessory structure plan, not to exceed 360 square feet in size, including the Findings of Fact:
Seconded by Mr. Kennedy. Motion carries 4 ayes to 0 nays.
Mr. Solis thanked the board.
Respectfully submitted;
Margaret R. Abernathy, Recording Secretary
St. John Board of Zoning Appeals
| Paul Panczuk, Chairman | Drago Popovic | Rick Eberly, Building & Planning Director |
| Mark Lareau, Vice Chairman | Brendan Sheeran | Joe Svetanoff, Town Attorney |
| John Kennedy, Executive Secretary |
(The Pledge of Allegiance was recited by all.)
Mr. Panczuk declared the presence of a quorum.
Motion to approve the minutes by Mr. Kennedy. Seconded by Mr. Sheeran. Motion carries 3 ayes to 0 nays with 1 abstention by Mr. Popovic due to absence from said meeting.
Mr. Panczuk advised that the first item on the agenda is Petition No. 2019-0005, Culver’s. The petitioner is seeking several developmental variances as well as a Special Exception.
Mr. Panczuk apologized for the late start to the meeting as there were last minute revisions to the site plan that were being discussed.
Mr. Eberly stated that Mr. John Terpstra will be making the presentation this evening and that Mr. Russ Pozen with DVG is also here. Mr. Eberly advised that all items are in order for this petition’s Public Hearing to proceed.
Mr. Eberly informed the board that he had met with Fred Terpstra; Mike Wondaal, Fred Terpstra’s son-in-law; and Larry Spender of Prestige Landscaping. They revised the landscape drawing and Mr. Spender brought it in this afternoon. Mr. Eberly stated that he reviewed it, created a spreadsheet from that review, and provided a copy to them.
Mr. Eberly advised that the plan is still deficient in terms of landscaping; however, it is a paved outlot that is almost 90 percent impervious surface as it stands; and as proposed, it will have a little less impervious surface at 84 percent. Mr. Eberly further advised that there are areas where they are having difficulty meeting the landscape regulations.
Mr. Terpstra stated that he is Attorney John Terpstra and signed the application as a registered agent for the owner and operator of Culver’s. Owner-Operators Fred Terpstra and Mike Wondaal, and Russ Pozen, of DVG, are present also; and they are here to seek a Special Exception and approximately 16 Developmental Standards Variances.
Mr. Terpstra turned the floor over to Mr. Pozen to go over the revised Site Plan that was drafted as a result of concerns that were raised at the Plan Commission Study Session.
Mr. Pozen stated that there were concerns that the entrance that was located near the dumpster site would have created some issues, so they have closed down that entrance and extended the curb and gutter. The dumpster has been rotated for ease of access. The only access to the drive aisle would be from the north entry or through the southwest corner of the lot via the outlot just to the south of their property. Mr. Pozen advised that up to 19 cars can be stacked in the drive-thru.
Mr. Pozen expressed gratitude for the Plan Commission’s input and stated that their comments were duly noted and addressed.
Mr. Panczuk stated that it is a better plan and that he feels that it would be satisfactory.
Mr. Kennedy asked if it will still be two ways in and out. Mr. Pozen responded that every drive is still a two-way drive except for the drive-thru area.
Mr. Kennedy asked if there is any concern if someone comes in from the northeast entryway and tries to turn into the order pickup stacking area. Mr. Pozen responded in the negative and stated that there will be a do-not-enter sign placed in a strategic location.
Mr. Terpstra stated that he has never seen that amount of cars in queue at a Culver’s restaurant. The pickup lanes can hold up to nine cars waiting for food and another eight cars can be waiting to order, which is an extraordinary amount.
Mr. Kennedy asked if the parking spaces that are marked for asphalt resurfacing will have a median or curb and gutter separating it from the existing Target lot. Mr. Pozen responded that it would be continuous parking.
Mr. Terpstra stated that if the Special Exception is approved, it would allow a use or development that would not be injurious to the public health, safety, morals, comfort, or general welfare of the community; will not adversely impact adjacent properties; will conform to the character and use of adjacent properties within this commercial area.
Mr. Terpstra requested to start with the Special Exception request for relief from Chapter 3, § E requiring restaurants with a drive-thru to seek a Special Exception if the amount of business generated by that drive-thru is more than 50 percent and then address each variance.
Mr. Panczuk stated that after Mr. Terpstra works through the document, the board would address the requests and may lump some of the variances together.
Mr. Eberly advised that typically the BZA will address the Special Exception last and make any decisions regarding the Developmental Standards Variances contingent upon the Town Council’s approval of said Special Exception. If the Special Exception is denied by the Town Council, the Developmental Standards Variance requests become moot.
Mr. Terpstra stated that they are requesting a variance from Chapter 8.4, § E.1, for relief from the minimum lot size of 2 acres to allow a lot size between 0.75 to 0.99 acres as Target would not yield a larger outlot for development in the Purchase Agreement. Target has an easement agreement on record that accommodates cross-parking and excludes development of the parcel directly adjacent to the south of the parcel.
Mr. Kennedy asked if the size of the lot is unknown. Mr. Pozen responded that the lot size is 0.99 acres as it stands currently.
Mr. Kennedy asked why the request is for as low as 0.75 acres. Mr. Terpstra responded that they are uncertain what the final plat of survey will look like as there is an issue with the bank’s sign, which is on their proposed parcel. Mr. Pozen advised that they feel they have addressed the issue, but as a precautionary measure, they would prefer the range.
Discussion ensued regarding the minimum to be specified in the variance, if awarded.
Mr. Eberly advised that he had originally asked them to carve out the area where the bank sign is located to avoid making it legal non-conforming. It is already a legal non-conforming sign because it is on Target’s property, currently, not the bank’s property; so they no longer need to carve that area out of their parcel and that lot should remain as it is shown right now at 0.99 acres.
Mr. Panczuk stated that he would be comfortable with a range of 0.9 to 0.99.
Mr. Terpstra stated that they are requesting a variance from Chapter 8.4, § F for relief from the restriction of parking only on the rear and sides of the building to allow parking along US 41 using the existing parking spaces that are currently there. This allows for 100 percent of self-parking, which complies with the recorded Target agreements and conforms to the surrounding businesses.
Mr. Terpstra stated that they are requesting a variance from Chapter 8.4, § F.5, for relief from the minimum square footage of 15,000 square feet. The building size is 4,310 square feet, which is the Metro-L plan size and building design as set forth and mandated by the Culver’s Franchising Systems, Inc., (CFSI).
Mr. Kennedy asked if the building size would change if the lot size were to be smaller than 0.99 acres. Mr. Terpstra responded in the negative and stated that, if anything were to be decreased due to a smaller lot size, it would likely be landscaping.
Mr. Kennedy expressed concern about reducing the landscaping. Mr. Terpstra responded that he doesn't expect a reduction of the building or lot size based on Mr. Eberly’s explanation of the bank sign’s impact on their lot; however, he does appreciate the consideration of the minimum at 0.9 acres.
Mr. Terpstra stated that they are requesting a variance from Chapter 8.4, § F.a, for relief from a maximum impervious surface of 65 percent. The proposed impervious surface is 84 percent.
Mr. Eberly advised that this is a drop from the current percentage of impervious surface, which is over 86 percent and closer to 90 percent, currently.
Mr. Terpstra stated that they are requesting a variance from Chapter 8.4, § G.2, for relief from no parking allowed between the US 41 right-of-way and the front build-to line of the building. This would allow the parking spaces that are currently present along US 41 to remain, which is commensurate with the design and character of the adjacent properties.
Mr. Terpstra stated that they are requesting a variance from Chapter 12, § C.1, for relief from parking space size restriction of 10 feet by 20 feet. This would allow the current parking space size, which is currently 9 feet by 18 feet. All the spaces in the St. John Marketplace are that dimension, and this allows them to stay in compliance with the parking agreement tied to the parcel as well as the CFSI allocation for parking. Mr. Terpstra noted that the ordinance requires them to provide 26 parking spaces, and their current plan provides 49 parking spaces.
Mr. Kennedy asked if Target would potentially not approve the purchase if the parking spaces were anything different than the 9 feet by 18 feet spaces. Mr. Terpstra responded that there is a risk that Target would not approve the development.
Mr. Terpstra stated that they are requesting a variance from Chapter 13, § I.2, for relief from providing a solid landscape buffer or screen at least 5 feet in height and 15 feet in width. This would allow them to have a 3-foot ground buffer between the outlot and the adjacent commercial lot to the south. The proposed separation conforms to the existing separation from Fifth Third Bank and this outlot and permits patrons parking to the south to see entryways in the outlot design for safety and traffic flow.
Mr. Terpstra stated that they are requesting a variance from Chapter 13, § O.1, for relief from the 30-foot Greenbelt restriction. This would allow for the existing 16-foot Greenbelt currently existing between the parking spaces and the US 41 right-of-way, which conforms to adjacent parcels and utilizes the current parking.
Mr. Terpstra stated that they are requesting a variance from Chapter 13, § O.2, for relief from the 5-foot planting strip minimum. This allows the parking to directly abut the property line to the north and allow a 3-foot planting strip to the adjacent property to the south. The lot line to the north terminates in the center of a common right-of-way and cannot accommodate a planting strip as required. The lot line to the south must be maximized to accommodate maximum parking and sufficient queue area for the drive-thru.
Mr. Kennedy asked if Fifth Third had sent anything to the Town. Mr. Eberly responded in the negative.
Mr. Terpstra stated that they are requesting a variance from Chapter 13, § O.3, for relief from planting area minimums adjacent to buildings along US 41. This would allow for 5-feet deep planting on the façade facing US 41 instead of 25 feet plus 20 feet (extending 10 feet on both sides); 6-feet in depth by the width of the building plus 5-feet on the north façade, 9 feet in depth by the width of the building plus 5 feet on the south façade, and no planting on the east façade instead of 10 feet in depth on all other sides. The lot size and location do not accommodate the required amount planting by ordinance.
Mr. Terpstra advised that Culver’s maintains strict scrutiny and inspections of the franchises, including the landscaping, for compliance with the Franchise Agreement.
Mr. Terpstra stated that they are requesting a variance from Chapter 13, § O.4, for relief from the planting minimums within parking lots. This is to allow fewer trees and shrubs than what is currently required by the 49 parking spaces provided on their lot due to the constraints of the parcel. Mr. Terpstra advised that it will be aesthetically pleasing.
Mr. Kennedy asked how many trees they are taking out. Mr. Terpstra responded that they would be removing 14 trees due to the islands that need to be removed.
Mr. Eberly advised that all together, they will be planting 26 trees and more than 100 shrubs.
Mr. Terpstra stated that they are requesting a variance from Chapter 13, § O.5, for relief from the landscaping minimum of 15 percent of side-yard and rear-yard. This would allow for 3 feet of landscaping to the south and no landscaping to the north or east due to the constraints of the parcel.
Mr. Terpstra stated that they are requesting a variance from Chapter 13, § P.2, for relief from the minimum parking lot interior landscaping requirements. This would allow no placement of an island in the out-parcel parking lot adjacent to the north as opposed to the requirement to install an island with space for pedestrian and vehicular travel due to the constraints of the parcel.
Mr. Terpstra stated that they are requesting a variance from Chapter 15, § C.9, for relief from certain prohibited signs. This would allow the installation of an in-color electronic message center along US 41. CFSI requires an electronic reader board as part of its standard monument design. The color would add aesthetic appeal and would be consistent with the character of companion in-color electronic message boards along US 41; furthermore, it sends a message of high quality and customer satisfaction.
Mr. Terpstra stated that they are requesting a variance from Chapter 15, § E.2 (d), for relief from the maximum allowances for directional signs. This would allow directional signage of up to 3.24 rectangular square feet as opposed to the maximum size of 2 square feet. The number of directional signs will remain compliant with the ordinance. The oval shape and design, which will read “Please do not enter” on one side and “Thank you” on the other side, is in compliance with CFSI requirements, from which they cannot deviate. The actual square footage of the oval sign is 2.55 square feet.
Mr. Terpstra stated that they are requesting a variance from Chapter 15, §§ E.5 (a, i and ii) for relief from the total gross combined area of all signs not to exceed 100 square feet and relief from the maximum monument sign size of 30 square feet; and (b, i and iii), for relief from the maximum of 2 wall signs, and if there are 2 wall signs, no ground sign shall be permitted. This would allow for gross signage just over 234 square feet, consisting of 4 permanent wall signs on the building and one monument sign of 48 square feet.
Mr. Terpstra advised that the permanent wall signs will consist of approximately 134 square feet; three 29-square-foot signs plus a mains sign of 47-square-feet sign over the entrance. The monument sign will be approximately 48 square feet at 8 feet high and 6 feet wide and have an in-color electronic messaging board of approximately 12 square feet. The drive-thru will have a menu board and a customer wait sign.
Mr. Panczuk stated that he doesn't believe the monument sign includes the 5-by-5 cap. Mr. Pozen responded that the cap is for visual purposes and not part of the actual sign.
Mr. Eberly advised that clarity is needed as to what the sign variance requests are.
Mr. Panczuk asked if the sign would be less square footage if they were to calculate the square footage of the sign based on the actual oval shape instead of using the rectangular equivalent. Mr. Terpstra responded in the affirmative.
Mr. Kennedy stated that it doesn't appear to be the same size at the Crown Point store. Mr. Terpstra confirmed that it is not the same size.
Mr. Panczuk stated that he can see justification to have four wall signs due to the location and that he is okay with the directional signs. He advised what the BZA typically will approve is the size of the monument sign should be no greater than 30 square feet with the reader board no more than 30 percent of that 30 square feet and in one color, typically amber, with restrictions for no graphics, no flashing or scrolling text, and no less than 6 seconds before the message changes.
Mr. Kennedy stated that the ordinance doesn't say it has to be monochrome. Mr. Panczuk responded that it says it cannot be a flashing type of sign, which means no LED whatsoever; so we have put that restriction on for the purpose of safety and general welfare and not to “Vegas” up the strip like US 30 through Dyer; take a ride past Patti’s gymnastics and the castle sign at night.
Mr. Kennedy stated that it is because they are so bright. Mr. Panczuk responded that there are issues with controlling it, and that is out of our hands once that happens; the yellow monochrome is generally controlled well and non-obtrusive.
Mr. Kennedy referenced the Site Plan shown at the Plan Commission meeting and asked if they still have 49 parking spaces with taking a spot for the monument sign. Mr. Pozen stated that they had 49 parking spaces on the plan that was shown at the Plan Commission meeting, which included the monument sign.
Mr. Panczuk stated that their monument sign may obstruct the bank’s monument sign and asked if the sign could be moved south a few spaces. Mr. Terpstra responded that it is up to the engineer.
Mr. Terpstra stated that once the parcel is carved out and they own this lot, there will be more questions to be answered by the bank with respect to the bank sign; and if anybody, they should be the one to move their sign to the north, which would be more in front of the bank itself. It is already off premises and not in compliance.
Mr. Kennedy requested to see the building sign renderings for a visual understanding of the square footage of the signs. Mr. Terpstra went through the renderings and explained the various sign examples.
Mr. Panczuk expressed concern regarding the brightness of the main sign above the entrance and its effect on the subdivision across from them on the west side of US 41.
Mr. Kennedy asked if the monument sign being proposed is 30 square feet. Mr. Terpstra responded that it is proposed to be 48 square feet. Mr. Kennedy countered that 48 feet is the overall rectangular size, not the oval.
Mr. Panczuk stated that the current square footage includes the reader board. Mr. Terpstra concurred and stated that the electronic messaging board would be about 5 square feet, 1 foot by 5 feet of operating square footage, if they stay within ordinance.
Mr. Panczuk stated that, with the recognition of Culver’s, 30 square feet is sufficient if the BZA allows four wall signs with the additional square footage.
Mr. Kennedy asked if a reader board can only be 30 percent of the sign. Mr. Eberly advised that there are no regulations on the size of an electronic message board, nor is it specified that someone cannot have an electronic message board; the ordinance states that a flashing or flowing sign is not allowed. Electronic message boards are capable of both; so when one is proposed, it’s brought before the BZA for approval.
Mr. Eberly stated that the BZA has typically allowed the electronic message board to be roughly 30 percent of an allowable monument sign, which is 30 square feet, and is typically between 8 and 9 square feet.
Mr. Panczuk stated that the idea is to allow businesses to have a reader board but not have to stick letters up anymore; so basically it is a modern version of a black-and-white reader board without adding clutter to the Wicker Avenue corridor.
Mr. Eberly stated that the monochrome preference has become a practice of the BZA; it is not a standard in the sign ordinance.
Mr. Terpstra proposed that, if the board is inclined to approve the message board, the approval include stipulation that it is not to exceed 8 square feet of the overall square footage of the monument sign so they are safe and clear.
Mr. Kennedy asked about the brick pedestal’s effect on the square footage of the monument sign. Mr. Eberly advised that the brick pedestal counts in the overall height of the monument sign but not the square footage.
Discussion ensued regarding the size of the monument sign wherein it was deduced that the monument sign is in compliance with the maximum square footage.
Mr. Kennedy stated that he is in favor of a color message board and that he is concerned about brightness. Mr. Panczuk responded that he is opposed to color.
Mr. Panczuk stated that if it’s the board’s pleasure to limit the reader board, a motion could be made to approve a reader board of up to 10 square feet, monochrome; however, a variance is not needed for the size.
Mr. Panczuk explained that he would be grouping like variances together when the board addresses them for action and stated that Culver’s would be an improvement over the sea of asphalt that is currently there, which is non-conforming.
Mr. Panczuk stated that he is a stickler about green space and would like to see the Landscape Plan before opening the floor for Public Hearing.
Mr. Kennedy stated that it is his understanding that they have tried to get additional acreage. Mr. Terpstra confirmed the same.
Mr. Terpstra stated that their Landscape Plan is pretty extensive, due to the ordinance, which will have a positive impact and outcome on the aesthetics along US 41 as there is a mixture of colors, flowers, shrubs, grasses, and shade trees in the plan.
Mr. Eberly handed out the renderings of the Schererville store to the board since they are representative of the landscaping they intend to bring to the St. John store.
Mr. Kennedy asked if the petitioner has turned in the Landscape Plan. Mr. Eberly responded that it was turned in this afternoon. Mr. Eberly advised that it is not available electronically yet and showed the original plan for a reference point
Mr. Eberly provided a spreadsheet of the landscaping required plantings and proposed plantings and reviewed the same with the board.
(The landscaping spreadsheet referenced is attached hereto and made a part thereof as Exhibit No. 2019-06-24-BZA. Category headers provided in the spreadsheet have been included for a reference point.)
Length of US 41 Greenbelt in Feet:
Mr. Eberly advised that the 30-foot buffer required cannot be met, they only average 18 feet in width of greenspace currently on the parcel.
They have 220 feet of frontage on US 41 which would require:
1. 11 shade trees, they show 6
2. 7 ornamental trees, they show 4
3. 33 shrubs, they show 20
Mr. Eberly stated that since they have half the space to work with in the US 41 Overlay District, they are coming up with a little better than half of the landscape numbers they’d have to provide; so they are, basically, achieving the ratio. Mr. Eberly advised that the number of evergreens required is an either/or where they can either put in shrubs or evergreens. They do not have to do both.
Mr. Kennedy asked if everything should be based off of the spreadsheet when the board takes action on the landscaping variances sought. Mr. Eberly responded that the spreadsheet should be referenced if the members are inclined to approve what is before them.
Mr. Panczuk asked if the shade trees are similar in size at maturity to what is existing in the parking lot currently. Mr. Terpstra responded that he is not sure what is in the St. John Marketplace currently, but they are proposing a mix of crab trees and maple trees. If there is any latency in the size, they should catch up relatively quickly.
Mr. Panczuk asked if they would have a full watering system. Mr. Terpstra responded in the affirmative.
Mr. Eberly advised that they meet the caliper size at planting per ordinance.
Linear Feet of Planting Strip:
Mr. Eberly stated that they theoretically have 620 linear feet of planting strip area: 200 feet of depth on the north and south lines by 220 feet of length on the east property line. They are unable to provide any landscape island on the north, so they are down to 420 linear feet where they can provide something, and parts of those frontages are taken up with entrances to the site taking close to another 50 feet of that 420 linear feet.
Using the raw number of 620 linear feet would require:
1. 11 shade trees, they show 7
2. 12 ornamentals, they show 4
3. 62 shrubs, they have 28
Mr. Eberly stated that, given the limitation, they are actually down to about 370 linear feet, so it’s almost half of the numbers that are shown.
Mr. Eberly changed the linear feet in the spreadsheet to show a better representation of the plantings to linear feet of planting strip available for this particular lot so the members of the board could see the difference.
Planting Depth Proposed Along Building:
Mr. Eberly stated that the board has already dealt with the 25-foot depth for the width of the building, including 10 feet on either, side north to south. They are requesting a variance of that. They are providing some, but not all, of the 25 feet. It is the same thing on the north and south side. On the east side, it would be nothing.
Mr. Terpstra stated that there would be a very small area in the approach to the drive-up window.
Mr. Panczuk advised the board that the landscaping standards are for larger stores with larger lots and that he is okay with everything up to this point.
Mr. Panczuk opened the floor for Public Hearing.
A gentleman spoke from his seat and stated that he was here for a separate matter; but that this is a great experience for his first BZA meeting. He was informed that the matter he was here for was removed from the agenda for failing to give proper notice in a timely fashion.
The gentleman stated that he is happy to hear that Culver’s is coming into town. The gentleman further explained that he was here as he was intrigued on what it took to petition for sign ordinances.
Mr. Kennedy stated that the gentleman and his partner who is with him own Sips & Stones.
With no one wishing to officially speak for Public Hearing, Mr. Panczuk closed the floor and brought the matter back to the board.
Mr. Svetanoff asked Mr. Panczuk if he would be grouping like variance requests together as he has done in the past. Mr. Panczuk responded in the affirmative.
Mr. Kennedy asked for clarification that any variances should be contingent upon the Town Council’s approval of the Special Exception. Mr. Eberly and Mr. Svetanoff confirmed the same.
Mr. Panczuk stated that this is an unusual situation with Culver’s requirements and Target’s parking agreement, as well as the existing parking space size of 9X18.
Mr. Terpstra noted that Culver’s does have a “max capacity, plus” requirement in the CFSI for the Culver stores and that they are tied to a parking agreement and an easement agreement, which includes the entirety of the St. John Marketplace, as well as an agreement with Target to be 100 percent self-parking.
Mr. Svetanoff stated that this is required by Target, the franchise CFSI, and is consistent with the development.
Mr. Panczuk entertained a motion for the Chapter 8 Developmental Standards Variance requests.
Motion by Mr. Kennedy to approve variances for Chapter 8.4, § E.1, to allow a minimum lot size of 0.9 acres; Chapter 8.4, § F, to allow use of the existing parking along US 41; Chapter 8.4, § F.5, to allow a building size of 4310 square feet; Chapter 8.4, § F.6.a, to allow the impervious area to be 84 percent; Chapter 8.4, § G, to allow the existing parking to remain within the front setback line of US 41; Chapter 12, § C.1, to allow 9-foot by 18-foot parking spaces to match the existing parking; based on the Findings of Fact:
Seconded by Mr. Popovic. Motion carries 4 ayes to 0 nays.
Motion by Mr. Kennedy to approve variances Chapter 13, § I.2, to allow the parking lot to abut the property line on the north and have a 3-foot wide buffer on the south; Chapter 13, § O.1, to allow approximately a 16-foot Greenbelt, as depicted on the Site Plan, which is the existing Greenbelt; Chapter 13, § O.2, to allow the parking lot to abut the property line to the north and have a 3-foot planting strip on the south; Chapter 13, § O.3, to allow a planting area of approximately 5 feet by 6 feet to 9 feet, respectively; Chapter 13, § O.4, to allow less plantings than required, exact figures in the spreadsheet; Chapter 13, § O.5, to allow the parking lot to abut the north property line and have a 3-foot planting on the south; Chapter 13, § P.2, to allow no landscape islands on the north portion of the site as it is a common drive; based on the Findings of Fact:
All of which is contingent upon the Town Council’s approval of the Special Exception and contingent upon the number of plantings outlined in the spreadsheet marked as Exhibit No. 2019-06-24-BZA and as depicted on the Landscape Plan and Site Plan.
Seconded by Mr. Sheeran. Motion carries 4 ayes to 0 nays.
Mr. Eberly advised that 100 square feet is the maximum total signage square footage, which includes the total of all permanent wall, window signs plus the monument sign.
Mr. Kennedy asked if there is any leeway in reducing the size of the 47-square-foot wall sign. Mr. Terpstra responded in the negative and stated that it is a CFSI requirement.
Mr. Panczuk stated that he is in favor of the wall signage with the smaller monument size and advised that the only variances needed are for 164 square feet of total signage and for a monochrome reader board of 10 square feet or less with no scrolling, flashing, or animation, and minimum of 6 seconds in between messages.
Mr. Terpstra stated that they will be in compliance with the monument sign with the exception of needing a variance for the electronic message board, with the condition that it does not take up more than 30 percent, or 10 square feet, of the monument sign itself.
Mr. Panczuk reiterated the preference for the monochrome color of amber and stated the reasoning. Mr. Terpstra responded that a color electronic message board is cleaner and more modern; nonetheless, he agreed to a monochrome electronic message board.
Motion by Mr. Kennedy to approve variances for Chapter 15, § E.2, to allow two standard directional signs of 3.24 square feet; Chapter 15, § E.5, to allow four permanent wall signs and a total signage square footage area not to exceed 164 square feet, not including the directional signage; and Chapter 15, § C.9 to allow a reader board that is no more than 30 percent of the monument sign, or 9 square feet, with a 6-second delay between monochrome messages that are amber in color and are not scrolling, flashing, or animated; based on the Findings of Fact:
Seconded by Mr. Sheeran. Motion carries 4 ayes to 0 nays.
Motion by Mr. Kennedy to send a favorable recommendation to the Town Council regarding the Special Exception variance request from Chapter 3, § E, to allow Culver’s Restaurant to have more than 50 percent of its business by way of the drive-thru; based on the Special Exception Findings of Fact:
Mr. Panczuk advised that the recommendation will go to the Town Council for final determination.
Mr. Terpstra thanked the board.
Respectfully submitted;
Margaret R. Abernathy, Recording Secretary
St. John Board of Zoning Appeals
| Paul Panczuk, Chairman | Drago Popovic | Rick Eberly, Building & Planning Director |
| Mark Lareau, Vice Chairman | Brendan Sheeran | Joe Svetanoff, Town Attorney |
| John Kennedy, Executive Secretary |
(The Pledge of Allegiance was recited by all.)
Absent: Brendan Sheeran and Paul Panczuk.
Mr. Eberly advised that the petitioner is requesting a waiver from the posting of the sign as the sign was posted 14 days in advance instead of 15 days in advance; which is still in accordance with the State law requiring 10 days of notice; all other items are in order for this petitioner to proceed.
Motion to waive the minimum of a 15-day notice on the sign and allow this petition to proceed having a 14-day notice on the sign by Mr. Kennedy. Seconded by Mr. Popovic. Motion carries 3 ayes to 0 nays.
Mr. Eberly advised that Michels restaurant’s sign was damaged by a motorist driving off the highway. The sign was legal when it was initially installed; however, the sign ordinance has changed, and now the sign ordinance is more restrictive. As such, they are requesting a variance for the size of the sign and to add an electronic message center to the proposed sign. The sign is roughly 48 square feet and the electronic message center would be roughly 20 square feet as proposed.
Mr. Eberly advised the members on the standards allowed by ordinance as well as the past practices of the BZA regarding signs and electronic messaging centers.
Mr. George Michels, Owner of Michels Sports Eatery, stated that he is here this evening with John Mathewson of Sign-it.
Mr. Eberly advised that the total height of the sign is 9.5 feet. The upper portion that reads “Michels Sports Eatery” is 4.25 feet by 8 feet; and the amber message center is proposed at 2.5 feet by 8 feet. The height of the sign is not in question; it is only the square footage of the sign.
Mr. Mathewson stated that the size of the proposed replacement sign is the same as the damaged sign that is currently there.
Mr. Kennedy requested confirmation that the sign itself is 34 square feet. Mr. Mathewson confirmed the same.
Mr. Lareau advised that we have an ordinance prohibiting flashing and flowing messages and asked what would be on the message board. Mr. Mathewson responded that it is double-sided, amber-colored message center that can be changed every so often.
Mr. Lareau asked what kind of messages. Mr. Michels responded that it would be daily specials and special events and that it would replace the old letter board messages.
Mr. Kennedy stated that the message center can only be about one-third of the size of an existing sign, or 12-square feet, that the messages must be amber in color with a minimum time between messages. He asked if 12 square feet would be sufficient.
Mr. Eberly stated that the petitioner has specified it would be a monochromatic, amber message center and advised that 30 percent of the signage is what is typically allowed for an electronic message center, which is roughly 10 square feet for this project. Mr. Kennedy responded that he understands it’s 30 percent; however, he would be willing to allow one-third.
In response to Mr. Kennedy’s previous question Mr. Mathewson stated that he will have to see what they can get and that 2.5 by 8 is a readily-available and cost-efficient size; and Mr. Michels stated that he would be comfortable using whatever size the board would allow him to use.
Mr. Lareau opened to floor for Public Hearing. Having no one come forward to speak, Mr. Lareau closed the floor.
Motion by Mr. Kennedy to approve Michels’ monument sign variance to allow total signage of 46 square feet, for a 34-square-foot name sign and a 12-square-foot electronic message center, with the contingency that the message center must be an amber monochromatic display with a minimum of 6 seconds between message changes, including the Findings of Fact:
Mr. Eberly advised that all items are in order for this petitioner to proceed: Mr. Wernersbach has an existing 550-square-foot attached garage on a corner lot with the garage entrance on Tulip Lane. He wishes to add 720 square feet, for a total of 1270 square feet of attached garage space, which is 170 square feet above what the ordinance allows. The proposed addition meets all the setback and height requirements.
Mr. Lareau asked if the new garage will start where the existing driveway ends. Mr. Wernersbach responded that there will be some concrete taken out due to working with existing utilities and adding a breezeway, so they do not lose any existing windows.
Mr. Eberly advised that the fence is not his property line; it is there to enclose the pool.
Mr. Wernersbach stated that the fence will be changed and that the garage will be 3 feet in front of the fence. The garage addition will match what is currently existing. They are building the garage because he has a work vehicle, which must be parked in a garage, and to create more room to park for when their kids start driving.
Mr. Wernersbach commented that he was proactive and created a petition in support of his variance request to get signatures from the folks who were sent notices. He noted that he was able to get signatures from all but four of them, who were not home on any of the occasions that he went to their respective homes.
Mr. Lareau asked Mr. Eberly if he had received any letters of remonstrance. Mr. Eberly responded in the negative.
Mr. Svetanoff stated that we would accept the petition as evidence as a part of these proceedings.
(A copy of said petition is attached hereto and made a part thereof as Exhibit No. 2019-07-22-BZA.)
Mr. Kennedy asked if there would be any commercial activity being done out of the proposed garage. Mr. Wernersbach responded in the negative.
Mr. Wernersbach noted that the 70-square-foot breezeway is not included in the garage square footage.
Mr. Lareau opened to floor for Public Hearing. Having no one come forward to speak, Mr. Lareau closed the floor.
Mr. Kennedy asked if the 70 square feet for the breezeway needs to be added to the 720 square feet of the garage space. Mr. Eberly advised that it does not need to be included.
Motion by Mr. Kennedy to approve the variance for the oversized, attached garage addition of 720 square feet, for a total attached garage space not to exceed 1270 square feet, for the property at 9779 Tulip Lane, including the Findings of Fact:
Mr. Eberly advised that all items are in order for this petitioner to proceed. He further advised that this variance request comes about as a requirement of The Gates of St. John, Pod 5, as we are tied to their covenants, conditions, and restrictions by virtue of their annexation agreement; therefore, we must enforce them in the same manner as our setback regulations. In Pod 5, and select other pods, the distance between structures must be 12 feet; however, it does not have to be equidistance between the properties. For example, one lot could be 4 feet off of the property line and the other could be 8 feet; it can be any combination as long as the distance totals 12 feet.
Mr. Eberly advised that the plat of survey that was submitted with the original building permit for the lot next door to the subject property was proposed with a 16-foot setback from the other property. The foundation survey showed it to be 15.92 feet, which is still in excess of the 12 feet. The surveyor for that adjacent property made the mistake; and it was 11.1 feet as opposed to what was shown on two different surveys: one being 16 feet, the other being 15.92 feet. We issued the permit thinking they were in compliance.
Mr. Lareau stated that essentially the first builder got it wrong. Mr. Eberly concurred.
Mr. Tim Kuiper stated that he is here on behalf of Lennar Homes regarding 10322 Adler Cove. Mr. Kuiper passed out some photos for reference and stated that the difference isn’t noticeable to the naked eye. Once the mistake was learned, it was looked at more closely and ended up being 11.02 feet instead of the required 12 feet. There is plenty of room on the other side of the house, so the house could have been moved.
Mr. Kuiper advised that a very small triangle at the corner of the structure is over because the house angles, so the best way to rectify it is to go seek a variance and leave the structure as is.
Mr. Kuiper referenced the Findings of Fact in support of leaving the structure as is.
Mr. Kennedy asked if Mackie Consultants did the surveys for both homes. Mr. Eberly stated that he believes Mackie Consultants do all of Lennar’s survey work.
Mr. Kuiper stated that CalAtlantic was merged with Lennar, and he doesn't know if that was a prior survey as some of the surveying was switched and can’t speak to that.
Mr. Lareau asked if the property next to it is another Lennar building. Mr. Kuiper responded in the affirmative.
Mr. Kennedy asked if this situation has occurred with Lennar before. Mr. Kuiper stated that it has not happened in The Gates and that there are no incidents that he is aware of in Lake County. He further stated that Lennar runs a tight ship and is upset about this.
Mr. Kennedy asked Mr. Eberly if Lennar Homes and Mackie Consultants are free from this type of error in St. John prior to this issue. Mr. Eberly responded in the affirmative.
Mr. Eberly displayed the survey submitted for the building permit and the survey that was submitted after the foundation was poured on the media screen. He explained that the permit plat of survey had a 16-foot total difference between the two structures with 5.5 feet on the subject property and the balance being on the property next door. The foundation survey shows it to be 15.92 feet between the two structures, with 5.42 being on the subject lot. As it turns out, those are erroneous measurements, and it is just over 11 feet.
Mr. Lareau stated that both of them are incorrect. Mr. Eberly confirmed the same. Mr. Kuiper stated that they basically added a “1” before the “6” and before the “5” adding 10 feet, so the distance was never questioned.
Mr. Eberly advised that Lennar was advised they had two options: Either to come before the Board of Zoning Appeals and seek the variance or cut a corner off of that portion of the building to make the 12-foot setback. He further advised that Mr. Lotton, the owner of the development, told Lennar Homes to seek a variance from the BZA first; he wouldn’t just let them cut that corner off.
Mr. Lareau stated that the homeowners association could have a difference of opinion with what the BZA agrees to. Mr. Kuiper responded that if this body approves it, it is fine. If this body doesn't approve it tonight, then Lennar will have to come back for something different to show how they would lop that off, which would not match the design of the general area.
Mr. Kuiper stated that there would be no further encroachment of that setback by the rest of the building or anything else, and this is not a carte blanche to continue.
Mr. Eberly advised that both houses are angled, which created the less than 12-foot difference.
Mr. Lareau opened the floor for Public Hearing.
Janet Cox (10300 Adler Cove): I lived in this area for about 13 years, in October. The house – I’m just going to correct you here – the house to the north of it was not built by Lennar; it was built by Phillippe Builders about 11 years ago. I notified, back in October, the homeowners association, which as of January 1 got, um, added on the ARC. Previously, they did know about the error – when I saw the survey sticks going up – and the response I received from them was – is this going – home going to be approved by – to be built on Lot 334? Her response was, “If it meets all requirements in the covenants, then yes.”
So I don’t know, since then, maybe they changed their mind and told you they would suddenly approve it, cause it doesn't meet their covenants. Um, I continued to let her know, prior to the concrete being poured, that the distance did not meet the requirements. I wasn’t getting a response.
I emailed Jon Gill, let him know. He sent me the surveys. I said, “I think that looks great on paper, but someone needs to get out there and take a look.” No one ever did, evidently. In May, we went out there, measured, 11 feet 1 inch.
My husband, prior to the home being built, went to the sales office and told their individual, “That is a smaller lot; they cannot build a bigger home on that lot.” She said, “I have nothing to do with that.” So now Lennar, previously CalAtlantic, whatever, they were informed. So now I think it’s a safety issue. There’s a huge difference. Any surveyor should know the difference between 15 feet 9 inches and 11 feet. That’s all I have to say.
Having no one else coming forward to speak, Mr. Lareau closed the floor and brought the matter back to the board.
Mr. Eberly informed the board members that the correct plat of survey shows the distance from the property line to be 5.42 feet for one home and 5.62 for the other feet.
Mr. Lareau asked for clarification that the home on the lot to the north was not built by Lennar. Mr. Kuiper stated that it is possible that Phillippe sold this pod to CalAtlantic at one point. Mr. Kuiper further stated that it is his understanding that Lennar built the home to the north; but if she says Phillippe built it, then he would believe her on that as she was there.
A gentleman was speaking from the back of the room, so Mr. Lareau reopened Public Hearing and asked him to please come forward and speak at the podium.
Richard Cox (10300 Adler Cove): They built his house next – sideways, so they actually gave him more property on the, uh, what would be (Mr. Lareau, “South side.”) yeah. So I walked in there and talked to the, uh, saleslady and told them that they were only going to be able to build one house there and it was going to actually be two lots that – that’s what CalAtlantic was going to build one house, one big house, and it was going to be a – a three car, because they knew that the lot wasn't big enough for another house. So she knew, and they knew what was going on. But they want to get that extra house in there; and that’s what comes into play, all of this. So that’s all I got to say.
Mr. Lareau again closed the floor and brought the matter back to the board.
Mr. Lareau asked Mr. Kennedy what his thoughts are, as he is also a member of the Plan Commission. Mr. Kennedy responded that it is human error; he listened to what Janet and Richard Cox has said; and if this was a common mistake by this firm, he would tell them to rip it out. It’s a one-time issue.
Mr. Kuiper stated that there are no mechanicals or anything that would be on that side of the house. It will remain open with no further encroachments, so no public safety issues about getting around the house would be impeded.
Mr. Kennedy stated that his issue with this is 16 feet was shown; and from a visualization, anyone in this room should be able to tell the difference between 16 feet and 5 feet. Mr. Kennedy stated that he has heard different measurements and wanted to know what the actual distance is. Mr. Kuiper responded that it is 11.04 feet.
Mr. Kennedy stated that he would be comfortable approving this at 11.04 feet.
Discussion ensued as to what restrictions should be added to the motion; and Mr. Eberly advised them to be cautious because the issue of distance is just between the two points and, as you come closer to the street, the structures comply with the 12 feet, most of the area is compliant.
Mr. Eberly advised that three surveys are required in the typical home building process: a permit plat of survey, a foundation survey, and a final survey when everything is completed. Had the mistake been noticed early on, there was space to move that house to the left because there is 13.42 feet between this house and the house to the left of it.
Mr. Eberly advised that Phillippe was going to build on this lot; however, they didn’t have a floor plan that would fit on the lot; Lennar did.
Motion by Mr. Kennedy to approve the variance to allow a side-yard setback of 11.04 feet, with the condition that no further encroachments, mechanical or structural, be allowed in the affected area, including the Findings of Fact:
Respectfully submitted;
Margaret R. Abernathy, Recording Secretary
St. John Board of Zoning Appeals
| Paul Panczuk, Chairman | Drago Popovic | Rick Eberly, Building & Planning Director |
| Mark Lareau, Vice Chairman | Brendan Sheeran | Joe Svetanoff, Town Attorney |
| John Kennedy, Executive Secretary |
(The Pledge of Allegiance was recited by all.)
Absent: John Kennedy.
Motion to approve the minutes by Mr. Lareau. Seconded by Mr. Popovic. Motion carries 4 ayes to 0 nays.
Mr. Eberly advised that all items are in order for this petition to proceed.
Mr. Eberly stated that the media equipment is not working, so he has provided additional hard-copy drawings for reference.
Mr. Eberly stated that this is a simple matter for a square footage variance request for an oversized shed. Our maximum size is 10 feet by 16 feet, and the petitioner is requesting to be allowed to have a shed of 14 feet by 16 feet. Mr. Eberly further advised that Mr. Forrest is not requesting any variances from the setbacks or height requirements.
Mr. Ken Gembala spoke from the audience and explained the setback requirements were for sewer lines that were installed in 1985.
Mr. Eberly stated that Mr. Gembala lives a couple houses down from Mr. Forrest, is a surveyor by trade, a past member of the Plan Commission and Town Council, and a current member of Sanitary Board.
Mr. Panczuk asked what the lot dimensions are. Mr. Eberly responded that it is 100 feet by 200 feet and reviewed the accessory structure allowances for that size of a lot.
Mr. Forrest stated that the shed will be used for storage yard maintenance tools and equipment. He stated that he intentionally made the shed 14 deep feet by 16 feet wide so nobody thinks he will be parking a vehicle in it.
Mr. Panczuk asked if there are any other structures in the backyard. Mr. Forrest responded in the negative and stated that the proposed shed will be the only structure in the yard other than a deck that he has a permit to build.
Mr. Panczuk asked what size the garage is. Mr. Forrest responded that his garage is 23 feet by 28 feet.
Mr. Forrest stated that the shed will be directly behind the house and garage, not off to one side, and will be 15 to 20 feet from the south lot line.
Mr. Lareau asked if the materials of the shed will match that of the house. Mr. Forrest responded in the affirmative and stated that the shed will have LP Smart Siding on the lower portion, Masonite cement-board gables that look like stucco, and trim that is the same as the house.
Mr. Lareau asked if it would be a stick-built shed. Mr. Forrest responded in the affirmative.
Mr. Lareau asked if it will have a poured pad. Mr. Forrest stated that the pad was already poured when he had other concrete work done.
Mr. Popovic asked if it is strictly for personal use. Mr. Forrest responded in the affirmative.
Mr. Panczuk opened the floor for Public Hearing.
Kenneth Gembala (9403 Belmont Avenue): I think two of the questions might have been answered. One of them is the height; there is no variance on the height?
(Mr. Eberly responded that a height variance is not required.)
And you said the other one was for storage, personal. There’s no business associated with it?
(Mr. Forrest responded that it is just for storage.)
Okay. Otherwise, because I – I believe you have a business, so that’s why. It’s not that storage for anything?
(Mr. Forrest assured him it is only for personal storage.)
Yeah. Uh, the only comment I want to make is I was on the BZA for five years; and uh, we always struggled with setting a precedent. And, uh, you know, it’s hard to approve one shed, oversized, and deny another one. And we have large open lots, uh, and there are nice views. Nobody has fences, and I’d hate to see a bunch of larger buildings going up in the neighborhood.
Uh, I am not objecting to this petition; but I do, strongly, request that the board consider in their Findings of Fact and put something unique in the Findings of Fact for this approval it would not be a carte blanche for any more sheds going up with that size. They would be individually considered.
Um, I know the attorney would say that, but I sat there for five years and it was tough trying to – trying to do something where you – you made each one unique and didn’t, basically, change the ordinance by BZA action. So that’s my request, and again, I am not – I have no objection to the petition.
Having no one else wishing to speak, Mr. Panczuk brought the matter back to the board.
Mr. Panczuk stated that the petitioner only has a two-car garage and could easily add more square footage than the shed to his garage without asking for a variance, so that makes his situation unique and he is amenable to granting this request.
Mr. Lareau stated that most of the homes on that street have sheds on the property.
Mr. Popovic stated that it is tough to have enough storage without a shed with needing a tractor, mower, and snow blower.
Hearing no further discussion from the board, Mr. Panczuk entertained a motion.
Motion by Mr. Lareau to approve the variance request for relief from Zoning Ordinance Chapter 11 § A.2 to allow an oversized shed of 14 feet by 16 feet to be constructed at 9443 Belmont Avenue, including the Findings of Fact:
Seconded by Mr. Sheeran. Motion carries 4 ayes to 0 nays.
Respectfully submitted;
Margaret R. Abernathy, Recording Secretary
St. John Board of Zoning Appeals
| Paul Panczuk, Chairman | Drago Popovic | Rick Eberly, Building & Planning Director |
| Mark Lareau, Vice Chairman | Brendan Sheeran | Joe Svetanoff, Town Attorney |
| John Kennedy, Executive Secretary |
(The Pledge of Allegiance was recited by all.)
Absent: John Kennedy and Joe Svetanoff, Town Attorney.
Mr. Eberly stated that Mr. Svetanoff was unable to attend due to a scheduling conflict.
Motion to approve the minutes by Mr. Lareau. Seconded by Mr. Sheeran. Motion carries 4 ayes to 0 nays.
Mr. Eberly advised that all items are in order for this petition to proceed.
Mr. Doug Rettig with DVG stated that he is here representing Kurt Kropp. The 11-acre parcel lies west of Hart Street and north of Joliet and has drainage issues, floodplains and wetland areas. St. John Ditch cuts through the property towards the south end. They have had the wetlands delineated, and the buildable ground is on the westerly portion of the property near the railroad tracks.
Mr. Rettig stated that to gain access to Hart Street they have to cross a small portion of the floodway. The impact on the floodway will be minimal as they only intend to put in one driveway to be shared by both properties. Mr. Rettig stated that this parcel has always been zoned industrial, and the minimum lot size used to be 1 acre.
Mr. Rettig asked when the change came about. Mr. Eberly responded that the change to the minimum lot size requirement came about in 2009.
Mr. Rettig stated that they do have 10 acres on one lot; however, they wish to subdivide it into two undeveloped lots to sell as they feel more people would be interested in a 2-acre or 3-acre lot as opposed to one person buying the whole thing.
Mr. Rettig advised that they will have stormwater detention for both lots due to the topography, a detention area to the north and another to the south.
Mr. Eberly showed an aerial photo of the property and indicated where the wetlands were on the property, where the lots would be split, and what areas are buildable land.
Mr. Panczuk asked what the hardship is that they are not doing a 10-acre lot. Mr. Rettig responded that there is not 10 acres of usable land because of the floodplain and wetlands; the owner believes two smaller lots would be more desirable. He added that the alternate is to come in with a 1-lot subdivision; however, this plan is what they desire.
Mr. Sheeran asked if there is any variation for the building setback lines. Mr. Rettig responded in the negative.
Mr. Sheeran asked if there are special setback lines for industrial lots. Mr. Eberly advised that there are; however, the petitioners for this property would not need any variances from those. He further advised that there are no maximum setbacks required.
Mr. Lareau asked how much land is considered buildable in total. Mr. Rettig stated that it might be 5 acres.
Mr. Popovic asked if there is any consideration for a culvert for maintaining water flow through the front portion. Mr. Rettig responded that they will install a culvert if necessary.
Mr. Popovic asked if the property would remain industrial zoning. Mr. Eberly responded in the affirmative.
Mr. Panczuk opened the floor for Public Hearing.
Walter Kucharski (10410 Joliet Street): (Mr. Kucharski spoke too far from the microphone to be heard while he provided a written remonstrance to the board.)
However, one thing he did say that I take exception to is he’s looking to sell the lots; but he implied he has control over what’s going to go in there. He stated there would be nothing built there, which is erroneous advice.
There’s a little background here, so please bear with me. If somebody would care to read that in the record, I’d much appreciate it.
The second question I have regarding this survey, it lists the property on Joliet Street being owned – owned by Hamers.
(Mr. Eberly asked Mr. Kucharski to come to the microphone to speak.)
It – it – on the survey, the plat of survey, it lists the property as owned by T and C Hamer. Hamers have not owned that property for two years. Thus, it shows – it throws this whole plat of survey into question.
(Mr. Rettig stated that this sketch is based on a survey that was done about three years ago.)
Well, I was looking for accuracy. Okay.
(Mr. Panczuk asked Mr. Rettig if the petitioner currently owns the property. Mr. Rettig responded in the affirmative.)
Would you care to read that?
(Mr. Panczuk agreed to the same.)
I’d appreciate that. Yeah, so everybody else gets it. I have been here for 30 years. I was here for the first round of this.
(Mr. Panczuk read the remonstrance aloud. The same has been attached hereto and made thereof as Exhibit No. 2019-09-23-BZA1.)
(Mr. Panczuk stopped after reading the first two paragraphs and explained that the BZA has no bearing on the zoning of that property.)
I understand that completely. I understand that, I – once it’s zoned it is. But like I said, the Town recognized it 25 years ago and said, you know, this was done back when it was farmland; we understand. I guess the intent of this, as you read through, will be all right, it’s a bad situation; why make it worse?
(Mr. Panczuk continued reading the letter aloud.)
One final question, uh, it hasn’t been made clear what the, uh, undue hardship would be for denying this petition other than financial gain at the expense of others.
(Mr. Panczuk replied that the hardship is part of what the board is charged with determining tonight. Mr. Panczuk stated that under the current zoning, he could still build the lot at 10 acres.)
Totally understood. And he’s come out and said he’s only got about 6 or 7 buildable acres anyway.
(Mr. Panczuk stated that the lot could be platted containing some of what is floodplain at his own risk; our choice isn’t what the zoning is or even if he can build on it.)
I understand it totally. My point is, is you’ve got a – a terrible situation there. I understand him looking to maximize his money that he can get; but he doesn't live in the neighborhood. And I’m saying we’ve got a bad situation, please don’t make it worse. I appreciate your time.
Raymond Penkala (9725 Hart Street): I live in the duplexes, and my big concern is the traffic. Uh, when you’re living on the east side of 41, 93rd cannot handle traffic and will not handle the traffic after all the building is done on the east side of town. It’s being overbuilt. It’s also being overbuilt on the other side; but I’m concerned about the east side of 41.
To get out onto 41, Joliet, I can easily go north from my house; but if I want to go south, it’s suicidal to go south because everybody’s turning. So I always go to 93rd, and at certain times of the day, you can’t even get out on 93rd because all the traffic coming, and the school buses. As far as Hart Street, of where they want the industrial park – not industrial park, but the – uh the lots broke up. My concern is to keep it to one lot like it is. We don’t need two lots and more traffic.
That’s our main route of getting out. Everybody in Three Springs that wants to go west, that’s the main route. And when it did flood that time, we were cut off. I see they put a pipe in, but if they’re going to put in, uh, uh, and use this land, they’re going to probably have to build it up a little. And like the man says, it’s going to cause more flooding. And that’s going to really cut us off if that happens. So my big concern is St. John, from 41 east, was never planned for what we’re doing today. I think you all realize that.
You – you would have to buy 93rd and knock all the houses down and make that a four-lane highway because what’s being built from 41 east is an overkill; and I think anybody that lives on this side knows that. And that’s my big concern, so I would oppose breaking that up into two lots.
Lester Fox (10753 Thielen Street): I just got a few notes here, which I promptly clicked on and lost now. Excuse me; there we go. So when I look at this, this zoning request in and of itself, I understand the constraints your under that, um, you know, it’s “I” now. We’re not to – we can’t change that. We’re here to talk about just splitting it up.
And my problem with this is that’s what keeps happening. We keep looking at every one of these decisions myopically. We don’t look at the total plan for the east side here, even more specifically, this, uh, 93rd – Joliet corridor here with this pie shape between the tracks on – on either side of that. Three Springs when it. Now you’re going to put a roundabout in over here that supposedly they don’t even want. You took Thielen’s, uh, uh, cabinet shop there –
(Mr. Panczuk and Mr. Fox were speaking simultaneously and some comments were indiscernible. Mr. Panczuk stated that the BZA didn’t have that control.)
Right. Right. And maybe I could support that even – there was even a plan at one point to take part of the park and cut through, uh, onto Thielen Street and have that for that. And so there was some Comprehensive Plan – air quotes just so you can’t see that in the recording there – but, uh, there was a Comprehensive Plan supposedly for that.
That Comprehensive Plan was, again, myopic because it just looked at really what one development, uh, developer needed instead of what all the developers in the area are going to need, and the landowners, because, uh, you know, I feel for the man and his family. They want to be able to sell this property and move on. But by looking at this as a simple decision of just splitting up the lot, you are, again, passing the buck down the road. Again, you’ve got the drainage issues and everything, I think the previously read, uh, letter – remonstrance into the record was – was a great, uh, uh, listing of all the issues, really, that come up with this.
Um, but I think there has been a failure here from the farm days when this was all just zoned “I”. And the buck keeps getting passed down the road. But, uh, one thing I think that’s different now that I hear the plan and I think about things and I see the, uh, the layout here of the, uh, the wetlands and the drainage is that – is that there’s other solutions than simply dividing it up and developing it because that’s what they are going to do.
This is a simple first step. I think everybody in the room knows that from the language that was already used that this will be developed by them. Why doesn't the Town, perhaps, just buy this piece of land and turn into a wetland and leave it? You’ve got “I” and R-1 across the street right there on Hart Street. Of course, you’ve got three corners here that already have houses on it, R-1.
Um, again, the failure is there that there’s no buffer zones. The tracks was the buffer zone. This is already skipped over that. This has happened to me. I’m in the upper left hand corner there where the industrial park was put in behind the houses at Thielen Street. So I’m literally the little – the little guy on the end here cause the Town bought across the street there where the drainage is, the Town bought those houses, tore them all down and turned that into a, uh, uh, a Public Works building.
So there’s four-letter word I’d like to say there, but that’s what you’re doing to us on that street. It starts with an F by the way, right. So what happens to my property values now and going into the future? Well, you’re just taking them away, so what’s going to happen to me? Well, I think we already know. It’s probably already happened.
I’m against this, uh, this plan as it stands; and I think that you need to look at things cohesively. And I know that’s not the question here tonight, but I think, um, I can be rezoned back to R or C. It rarely happens because it’s very hard; but I think this may be a case where the Town, not this board, but the Town should look at that. And then I think that might solve their side of making some money off of this. That’s all I have to say.
Having no one else wishing to speak, Mr. Panczuk closed Public Hearing and brought the matter back to the board.
Mr. Panczuk stated that the authority he has tonight is lawfully defined; and he cannot do anything outside of deciding on one lot or two lots tonight and advised that issues with broad planning and traffic and concerns over compatibility of zoning should be taken to the Town Council, who has the authority to decide whether to attempt to take land or not.
Mr. Panczuk stated that the petitioner has a right to develop the property as a landowner; and the BZA can only address the lot size. He noted that it doesn't mean they don’t care about those other things; however, the BZA doesn't have control over them. Mr. Panczuk stated that this will go before the Plan Commission regardless of tonight’s decision
Mr. Eberly advised that if this goes forward to a Plan Commission meeting, it will have another Public Hearing where things are discussed relative to engineering and platting, whether it is a one-lot or two-lot subdivision; and the folks who were notified of tonight’s meeting would also be notified about the Plan Commission Public Hearing as well. Mr. Eberly explained the difference between the Plan Commission Regular Meetings and Study Sessions for the edification of the public present.
Mr. Popovic asked if it is outside of the BZA’s jurisdiction to address the conflict with the property being zoned Industrial and Hart Street having a “No Truck” stipulation because industrial traffic would wreak havoc on that road in its current condition. Mr. Eberly responded that those things are outside of their jurisdiction as a BZA.
Mr. Eberly stated that it is his understanding that Kurt Kropp’s father brought this before the Town many years ago; the plan was denied; and there was a lawsuit that followed that Mr. Kropp won. Part of the reason for denying it may have been that Hart Street is not built to take the traffic. The “No Trucks” signs on either end of Hart Street with no weight limit speaks volumes; however, it is zoned light industrial and the property owner has the right to pursue a development plan.
Mr. Rettig stated that the plan 20 years ago was for 9 lots fronting on Hart Street. Mr. Rettig stated that sanitary sewer and water main run along the front the property; so the utilities are there and it is a developable piece; however, the signs create an issue.
Mr. Panczuk stated that he interprets the 2009 revision of the Ordinance as they are trying to maintain the size of lots. He further stated that we have the same kind of requirements for more organized development in commercial areas, residential, etc.
Mr. Panczuk stated that personally he does not find hardship in one lot versus two as it can be a 10-acre parcel and be sold and built just the same as two parcels. Mr. Panczuk made reference to the Findings of Fact item 3 and stated that he doesn't believe that the strict application of the Zoning Ordinance will result in practical difficulties.
Having no further questions or comments, Mr. Panczuk entertained a motion.
Motion by Mr. Lareau to deny the variance request for relief from Zoning Ordinance Chapter 7.1 § E.6, requiring the lot-size minimum in an Industrial Zoning District of 10 acres, for the property located at 10460 Joliet Street, including the Findings of Fact:
Seconded by Mr. Sheeran. Motion carries 4 ayes to 0 nays.
Raymond Penkala (9725 Hart Street): Not to take anything away from anybody, but they bought the property knowing it was zoned that way. And it is wetland, so we’re not taking nothing away that they didn’t know about by denying it. Uh, that’s all I, like, you know, they – they knew what they bought.
Having no one else wishing to speak, Mr. Panczuk closed Public Comment.
Respectfully submitted;
Margaret R. Abernathy, Recording Secretary
St. John Board of Zoning Appeals
| Paul Panczuk, Chairman | Drago Popovic | Rick Eberly, Building & Planning Director |
| Mark Lareau, Vice Chairman | Brendan Sheeran | Joe Svetanoff, Town Attorney |
| John Kennedy, Executive Secretary |
(The Pledge of Allegiance was recited by all.)
Absent: Mark Lareau.
Motion to approve the minutes by Mr. Sheeran. Seconded by Mr. Popovic. Motion carries 3 ayes to 0 nays and 1 abstention by Mr. Kennedy due to absence from said meeting.
Mr. Eberly advised that all items are in order for this petition to proceed.
Ms. McCloskey introduced herself.
Mr. Eberly advised that a side-yard fence cannot be closer to the side property line on a corner lot than the building line. In this case, there is a 20-foot building line off of 109th Avenue. Ordinarily, that is as close as they can get with a side-yard fence, and they would like to cross over that building line and get a little more use out of their yard. The fence that they are proposing will not cause a line-of-sight issue. There is significant landscaping in that area, so the fence may not even be seen from Hillcrest Lane.
Mr. Eberly stated that they want to line their fence up with the neighbor’s fence that is behind their lot.
Ms. McCloskey stated that they would like extend their fence by one additional 8-foot panel further to the south property line.
Mr. Panczuk asked if the fence would cross the 10-foot easement line. Ms. McCloskey responded in the negative.
Mr. Panczuk asked if it will line up with her neighbor’s fence. Ms. McCloskey responded in the affirmative.
Mr. Panczuk asked if the existing fence is being relocated. Ms. McCloskey responded that they want to extend it out by one panel; the gates and everything else will stay exactly where it is located.
Mr. Sheeran asked if there is an HOA review with this project. Ms. McCloskey stated that the HOA received the certified letter and that Peter Bylen presented it to the board, and there were no issues.
Mr. Svetanoff stated that the architectural standards committee may have to review that.
Mr. Sheeran asked if they are already okay with that. Ms. McCloskey stated that they have; she forgot to print the email, but she agreed to forward the same to Mr. Eberly.
Mr. Eberly stated that the neighbor didn’t bring their fence all the way to the south property line, but they could have. Ms. McCloskey responded that is because of the utility boxes.
Mr. Sheeran asked if he used another fence or connected to her back fence. Ms. McCloskey responded that he is tied into her fence.
Mr. Eberly stated that the fence would be about 12 feet off of the south property line.
Mr. Panczuk stated that typically there is a sidewalk when someone is asking for a side-yard fence variance; we usually leave enough room for a buffer for landscaping. He further stated that he has no issues with this variance request.
Mr. Eberly advised that no letters of remonstrance were received for this petition.
Mr. Sheeran stated that he has no issues with it as long as she has the HOA approval. Ms. McCloskey responded that she will email that to Mr. Eberly.
Mr. Kennedy asked for clarification that she only wants to move the fence 8 feet south. Ms. McCloskey confirmed the same.
Mr. Panczuk opened the floor for Public Hearing. Having no one wishing to speak, Mr. Panczuk closed Public Hearing and brought the matter back to the board.
Mr. Panczuk asked if the fence will encroach the berm. Ms. McCloskey responded in the negative.
Mr. Panczuk entertained a motion.
Motion by Mr. Kennedy to approve the variance request for the property located at 10885 Hillcrest Lane for relief from Zoning Ordinance 13F5c2, allowing the side-yard fence to extend beyond the building line with the contingency that the fence must be at least 12 feet from the south property line, including the Findings of Fact:
Seconded by Mr. Sheeran. Motion carries 4 ayes to 0 nays.
Respectfully submitted;
Margaret R. Abernathy, Recording Secretary
St. John Board of Zoning Appeals
| Paul Panczuk, Chairman | Drago Popovic | Rick Eberly, Building & Planning Director |
| Mark Lareau, Vice Chairman | Brendan Sheeran | Joe Svetanoff, Town Attorney |
| John Kennedy, Executive Secretary |
(The Pledge of Allegiance was recited by all.)
Absent: Brendan Sheeran.
Motion to approve the minutes by Mr. Kennedy. Seconded by Mr. Lareau. Motion carries 4 ayes to 0 nays.
Mr. Eberly advised that all items are in order for this petition to proceed.
Mr. Eberly clarified that the garage and driveway are pre-existing and are legal, nonconforming at this time. The garage is a detached garage and currently sits 1’8” off of the side property line at one corner, the other is 4’8”. By today’s standards, they must be a minimum of 5 feet off of the rear and side property line. The petitioner intends to remodel the home and connect the garage to the existing home; which eliminates the pre-existing condition and would require the garage to comply with a 10-foot side-yard setback as an attached structure.
Mr. Eberly advised that the driveway also exists and encroaches onto the neighbor’s property who lives to the east. The petitioners intend to modify that and remove that section of the driveway out that encroaches and leave the rest of the driveway in place going back to the detached garage. The driveway will be against the property line, as it already is; however, because they are modifying the driveway, he advised them to advertise for the driveway variance as well. Mr. Eberly stated that the argument could be made that the driveway is already existing and that they are not changing the driveway, so it is grandfathered.
Mr. Catalin John Tartareanu and Ms. Bryonna Hartlerode introduced themselves.
Mr. Tartareanu stated that they bought the property in August and received a survey at closing from the original owners that was inaccurate. They paid for an architect to redesign everything for their addition, got an updated survey, and realized how the house and driveway are sitting. The lot is 1.27 acres, and the house was built in 1943. They intend to keep the house and garage where they are currently and add a second story.
Mr. Tartareanu stated that the driveway to the property line is 9.3 feet, which makes it difficult for a vehicle to make it all the way to the garage, and they would like to receive approval to be able to keep what they have there instead of reducing it to 6 feet in width, as a car may not be able to fit on it.
Ms. Hartlerode stated that they only want to the driveway.
Mr. Tartareanu stated that there is a small amount of approximately 4 feet that need to be removed from the neighbor’s property. They want to remove the 4 feet from the neighbor’s property and add it to the west side of the existing drive and reshape the front. He further stated that they have over 104 feet of frontage to work with; however, where the house sits currently is tight as it is.
Mr. Tartareanu asked if the board would like him to speak about the attachment to the addition.
Mr. Panczuk asked Mr. Eberly if the attachment is causing the setback issue. Mr. Eberly responded that the need for the garage setback brought it about.
Mr. Panczuk explained that the board will look at the side-yard setback for a garage that is currently grandfathered in as existing, legal, nonconforming.
Mr. Panczuk opened the floor for Public Hearing.
Robin Jones (7996 Linden Street, Dyer): I’m here on behalf of my mom, Rita Berg, who lives next door, 10351 Joliet Street. I have a statement that the family has put together in regards to all these variances. I have copies if you’d like a copy of it. I’d also like to read it. Would you like a copy of it?
(Mr. Panczuk responded that he would like a copy and that she may read the same into the record.)
(Ms. Jones handed copies to the board and read the statement into the record. Said statement is attached hereto and made a part thereof as Exhibit No. 2019-11-25-BZA-1.)
I have pictures.
(Ms. Jones passed out a copy of the photos to the board to review.)
So what you showed from Google Earth is one thing, but that’s not what’s going on. And I took these pictures two weeks ago, and now it’s changed and the yard is even worse than it was from the construction trucks that have gone through. I went up to the property and I measured so that we were 9 feet from the building. Just to be clear, the driveway’s already been removed from the front of the house to the back driveway. It’s been removed; it’s not there. And so I measured and so you could see exactly where things are, where the dirt pile is and how things are on her yard and have been destroyed.
(Mr. Eberly stated that an “As-built” survey is required at the end of a project. The petitioners will have to provide another survey at the completion of the project showing the actual conditions and would assure the location of the new driveway.)
That takes care of the first part, but what’s going to happen if it’s not?
(Mr. Eberly responded that they would not be granted an occupancy permit until the project is compliant; so they would not be able to occupy the house until they’ve satisfied that condition. Mr. Eberly further responded that we can’t condition an occupancy permit on the damage to the property, as that is an issue between the two property owners. In an earlier conversation with the petitioners, they recognized there are damages to the property which they intend to rectify. )
(Mr. Svetanoff advised that it is a civil matter.)
(Mr. Eberly stated that we cannot hold up their occupancy because of that damage.)
But you can for the driveway, so if the driveway encroaches her property, you can hold up occupancy until it’s fixed.
(Mr. Eberly responded in the affirmative.)
(Mr. Svetanoff stated that until we get an As-built drawing showing that the driveway situation has been corrected. Mr. Eberly concurred.)
And that it will not encroach her property.
(Mr. Eberly stated that is correct.)
Because somehow that happened last time. I don’t know when it happened, but obviously when we saw the survey and realized what part of the driveway was on her property, we were like – I mean, how could that be?
(Mr. Eberly responded that somebody added to it at some point in time.)
Okay.
(Mr. Eberly stated that the Google Earth picture is probably from a couple of years ago and was before the construction on the house.)
Is it also possible, is it considered for construction etiquette that there be some kind of loose fence put up in between, on the property line, so that construction trucks know where not to go?
(Mr. Eberly responded that it is not a requirement, but it commonly is done.)
(Mr. Svetanoff stated that it is good practice.)
And that wasn’t done this time, so.
(Mr. Eberly advised that it is not required; it’s not a Town Ordinance.)
But that’s common practice?
(Mr. Svetanoff advised that it is good practice, not common practice.)
Oh, good practice. Okay. And just to be clear, the pictures I gave you were two weeks ago, and now the ruts and the damage in her yard are worse because they’ve come back and they’ve started working on the big pile of dirt that was on both properties. And because of that, now there’s more ruts and more mess in her yard. I could take more pictures if you need me to, but I didn’t do that for today.
(Mr. Panczuk thanked Ms. Jones for the pictures and explained that the BZA has no jurisdiction over the damage done and that this board can only look at the variances for the driveway and the side-yard setback.)
I just thought it was important that you knew what was going on over there. I understand, legally, that you couldn’t do anything, but I think you – since they’re here asking for things, I think you should know what’s been going on.
(Mr. Panczuk stated that he understands her concerns and asked if she had any further comment.)
No, I was just wondering if you had any for us.
(Mr. Panczuk stated not at this time.)
Rosemary Fletcher (1316 Gatewood Drive, Lowell): I’m Rita Berg’s daughter. So just also part of my research on this was just because the trees were inadvertently taken down, and so I contacted – and once again, I realize this has nothing to do with the variance. But the fact of the damage to the property is I contacted a professional landscaping company just to get the value of the two – the trees that were taken down. Um, and, um, just so it could be as a matter of public record. So I have their estimate here. I have two copies if you guys would like.
(Mr. Panczuk explained that it is not a matter the BZA can take under advisement.)
Correct. I just didn’t know whether to add to what Robin already presented, or –
(Mr. Panczuk responded that he has no say so over that matter.)
Okay.
(Mr. Panczuk asked Ms. Fletcher if she had any comment on the variance requests.)
As long as the whole driveway is taken care of, and I don’t, you know – and it’s – I just thought it was interesting that the fact that – that, that wasn’t thought out ahead of time with the survey and they didn’t put the driveway on the opposite side of the house. But it is what it is. I mean there’s not much we can do to prevent that, but we just want to prevent any further damage and keep that driveway off her property.
Having no one else wishing to speak, Mr. Panczuk closed Public Hearing.
Mr. Kennedy asked Mr. Eberly if the petitioners are required to seek a variance since they are making modifications to the driveway. Mr. Eberly responded that they are not required to seek the variance; the removal of that part of the driveway that encroaches onto the neighboring property is a civil matter between the two parties. He further responded that if the petitioners were not to do anything with the driveway, it would be legal, nonconforming and not need a variance; however, since the petitioners are modifying it, he felt they needed to seek a variance for the setback of the “newly, to-be-constructed driveway”.
Mr. Kennedy asked for confirmation that doing so would result in this site always having a variance for that driveway. Mr. Eberly responded in the affirmative.
Mr. Kennedy asked if the petitioner could make the modification to the driveway as shown without a variance approval. Mr. Eberly responded that it is safer for them, as the property owners, to get the variance than to not. Mr. Eberly stated that he could make an argument that they don’t need the variance for the driveway.
Mr. Svetanoff stated that anybody can make the argument; the problem is you put the petitioners in legal jeopardy of always having a civil legal challenge.
Mr. Kennedy asked if that would be just for the driveway. Mr. Eberly responded in the negative and stated that it would be for the driveway that is closer than 3 feet to the property line.
Mr. Panczuk stated that it appears in the pictures that the driveway is gone. Mr. Tartareanu responded that they removed the first layer of the asphalt because they were trying to get the area cleaned up. He stated that they are not trying to do the driveway until spring. They were requesting the variance now since they were already going to be requesting the variance to attach the detached garage to the home in conjunction with an addition they are having done.
Mr. Tartareanu stated that he wanted to address the comments made by Ms. Berg’s daughters: He stated that they had a conversation with Ms. Berg when the contractors were there. The contractors asked if they could park on the side of the driveway for space because of the materials and debris being where they are as well as traffic; to which she responded that is fine. The contractors caused some damage that they told Ms. Berg that they would get that taken care of in the spring and restore the yard to the same way it was.
Mr. Tartareanu stated that in regard to the two trees that were removed, when going by the old survey, it showed the property line to be to the east side of those trees. The new survey is angled and shows that the old survey was off by about 2.5 to 3 feet from the trees they had cut down. He explained that they cut them down because the insurance company contacted them and was going to cancel their insurance due to the branches that hang over the roof and side of the garage and shed behind the garage, as they are a hazard, and gave them 30 days to rectify the issue.
Ms. Hartlerode stated that she spoke with Ms. Berg in the morning about having somebody removing the stumps and planting new trees.
Mr. Panczuk stated that the tree issue is not relevant to the matters that the BZA is considering and asked the board if they have any questions or comments about the two variances in front of them for consideration.
Mr. Tartareanu stated that they are going to get another survey done with stakes to ensure the driveway is only on their property from the street to the garage.
Mr. Panczuk read the Findings of Fact and explained that those findings are what the BZA utilize to make their decisions and stated that he is looking at the lot and having a hard time with finding that it would result in practical difficulties in the use of the property.
Mr. Tartareanu stated that they are connecting the westerly 6 feet of the garage to the addition as a hallway so that the garage is connected to the house. He indicated where the addition would be on the drawing on the media screen.
Mr. Panczuk stated that typically when you are doing a remodel, the idea is to bring it into conformance at the time, and it appears you would be able to bring a driveway in on the other side of your house and would likely have to add a garage door to the garage to make that functional. Mr. Panczuk further stated that he feels that the property could still have a driveway back there, still have a garage back there, and not have it on the property line.
Ms. Hartlerode asked if he is talking about taking down the existing garage. Mr. Panczuk responded in the negative and stated that he is talking about moving the driveway to the other side of the house and swinging it around the back into the side of the garage, perhaps.
Mr. Panczuk stated that he has to look at if the property would be usable without the variance and that he is seeing that it could be usable without approval of this driveway because they could bring a driveway in on the other side.
Ms. Hartlerode stated that the reason she wants to attach the house to the garage is for security reasons. Mr. Panczuk stated that it has nothing to do with attaching it and that he is just looking at the location of the driveway.
Mr. Lareau stated that he doesn’t have a problem with the driveway and that bringing it to the other side is going to make it more difficult for them to actually use the property. He further stated that he thinks what Mr. Panczuk is suggesting is a big ask as they would have to redesign the whole project then.
Mr. Eberly asked Mr. Panczuk if he is saying that they have an opportunity to come around the west side of the house and come into the garage on the west side, moving the garage doors to that side to meet the setback. Mr. Panczuk responded that it was a possibility.
Mr. Eberly advised that a neighbor came into the office to ask about this situation; and when he explained to her what the variance was and that it had to do with this driveway and attaching this house to the garage and occurring on the east side of the property, she said that she just wanted to make sure it wasn’t happening on her side (the west side) of the property.
Mr. Kennedy asked if there are other lots that have the driveway right on the lot line. Mr. Eberly responded in the affirmative and showed a few examples in the vicinity of the property in question.
Mr. Popovic asked if there is a situation of adverse possession here. Mr. Svetanoff responded that it would be if they are paying taxes and that it would be a civil legal argument that would have to be adjudicated in court.
Mr. Kennedy stated that he is not concerned so much with the garage as he is with there being a zero lot line with the driveway and granting a variance to allow that in perpetuity because that lot could potentially redevelop again in the future with no recourse for the owners to the east. Mr. Kennedy added that there is at least 1.5 foot to the garage, which still isn’t a lot.
Mr. Kennedy stated that he appreciates what they are doing and stated that the value of the homes are going to go up in that area.
Mr. Panczuk asked if the petitioners would be required to have a variance for the driveway if they simply milled and repaved. Mr. Eberly responded in the negative.
Mr. Panczuk stated that if the board does not approve the driveway variance, it will continue to exist as legal nonconforming and avoid the issue of the perpetuity issue. They would still be able to have their driveway; they would be in respect of Rita's property line, and it would not be in perpetuity.
Mr. Panczuk stated that, regarding the garage, he is concerned that somebody could come in the future and knock the house down, and put up a mansion 2 feet from the property line. He further stated that perhaps the garage should stay existing, nonconforming detached and not open ourselves up to a future of that.
Mr. Panczuk asked Mr. Eberly if the garage just exists nonconforming if the petitioners leave it detached. Mr. Eberly responded that it is a legal, nonconforming structure that isn’t necessarily in perpetuity; if the garage were to be damaged by fire or tornado or something, in order to be rebuilt, it would have to meet the setback.
Mr. Panczuk stated that moving the driveway would change the property and would change the tree line for the neighbors to the west, so he would like to avoid that situation if possible, so the solution of leaving it legal, nonconforming and not allowing the attaching of the garage is the best scenario.
Mr. Panczuk asked the board for discussion. Discussion ensued.
Ms. Hartlerode asked if the board was talking about the addition or the driveway. Mr. Panczuk responded “both”.
Mr. Kennedy stated that we are talking about the location of the garage’s proximity to the property line and where the current driveway is.
Mr. Panczuk stated that if we approve anything tonight, it stays with the property in perpetuity and explained that if the board approves a 2-foot side-yard setback, the structures existing on the lot could be razed and a new mansion could be built 2 feet from the property line.
Mr. Tartareanu asked if the petitioners at that time wouldn’t need a variance themselves if they were to take it back down. Mr. Panczuk responded in the negative and stated that once it is granted to the property, it is stuck forever.
Ms. Hartlerode asked Mr. Panczuk if he is saying that they can’t do the addition at all. Mr. Panczuk responded in the negative.
Mr. Lareau asked Mr. Eberly and Mr. Svetanoff if the house were sold to somebody else would they have to abide by the ordinances that are in place if they tore it down and built a new structure. Mr. Eberly responded that the BZA would be granting a 2-foot side-yard setback variance.
Mr. Svetanoff advised that they could build a mansion 2 feet from the property line.
Mr. Kennedy asked if the petitioners were on a timeline. Mr. Tartareanu responded in the affirmative as the materials are sitting there and the roofline is just covered with tarps.
Mr. Eberly explained to the petitioners that if the board does not grant the variance for the setback for the side-yard, due to attaching the garage to the house, an addition can still be put onto the house, but it has to be separated from the garage by at least 6 feet by state building code.
Ms. Hartlerode asked if they are debating whether or not they can connect the house to the garage even though the addition would be 20 feet away and the garage is not habitable space. Mr. Eberly responded in the affirmative and stated that when it becomes connected to the main structure then it is part of the main structure and its setback has to comply with the R-1 zoning regulation, which is a 10-foot side-yard setback. He explained that connecting the two structures is what is causing the issue on the setback for the garage as it sits.
Mr. Tartareanu and Ms. Hartlerode stated reasons why they want the attached garage.
Mr. Panczuk stated that the board members understand all their wants and to trust him as he has an attached garage and likes it.
Mr. Lareau asked if a contingency could be made on the basis that if it were to be approved the way it sits today only to the ownership of these people. Mr. Eberly and Mr. Svetanoff responded in the negative.
Ms. Hartlerode asked if there is any way to make the addition work with being connected to the garage. Mr. Panczuk stated that it would mean moving the garage.
Mr. Kennedy stated that hypothetically it would mean taking off 8 feet of the garage to the east and moving it to the west or buy a strip of land from your neighbor.
Someone in the audience said, “That’s not going to happen.”
Mr. Kennedy explained that they would either have to come up with a solution for the garage on the east side to bring it over by 8 feet to attach that addition.
Ms. Hartlerode asked if the problem is connecting to the garage how it is currently sitting. Mr. Kennedy explained that once they attach to the garage, the property no longer meets the ordinance of the side-yard setback.
Ms. Hartlerode asked if the board hears how ridiculous that is by saying it out loud.
Mr. Panczuk stated that the garage is existing, nonconforming. It is way too close to the property line, and it can stay there. But as soon as it were to be attached to the house, it would require the lot to allow any building that were to be on that structure to be built 2 feet from the property line, from the front of the lot to the back of the lot. It changes the property forever.
Mr. Panczuk stated that doing the addition without connecting to the garage and keeping the legal, nonconforming garage and driveway is a better solution than some of the others. It is against today’s rules, but it is grandfathered in so they would still have the garage and driveway, modified out of Ms. Berg’s property, to use.
Motion by Mr. Kennedy to deny both variance requests for the property located at 10393 Joliet Street for relief from Zoning Ordinance 5E3c and 5E3e, allowing a side-yard setback variance for an attached garage and a driveway setback variance, including the Findings of Fact:
Seconded by Mr. Popovic. Motion to deny carries 3 ayes to 1 nay by Mr. Lareau.
Rosemary Fletcher (1316 Gatewood Drive, Lowell): And mine I guess is just more of a question with all this with them with the driveway. Will they, um, if that gets, like, repaved along the property line, is it still going to have to be proven that they aren’t on Rita's property to be granted occupancy?
(Mr. Eberly responded that they would still need an As-built survey for what they’re doing for the property in order to get a certificate of occupancy.)
So they will need to prove that they are not on the property?
(Mr. Eberly responded in the affirmative.)
Okay. That’s all. Thank you, sir.
Having no one else wishing to speak, Mr. Panczuk closed Public Comment.
Respectfully submitted;
Margaret R. Abernathy, Recording Secretary
St. John Board of Zoning Appeals
| Paul Panczuk, Chairman | Drago Popovic | Rick Eberly, Building & Planning Director |
| Mark Lareau, Vice Chairman | Brendan Sheeran | Joe Svetanoff, Town Attorney |
| John Kennedy, Executive Secretary |
(The Pledge of Allegiance was recited by all.)
Absent: John Kennedy, Drago Popovic, and Joe Svetanoff, Town Attorney.
Mr. Eberly explained why Mr. Svetanoff was unable to attend this meeting.
Motion to approve the minutes by Mr. Lareau. Seconded by Mr. Sheeran. Motion carries 3 ayes to 0 nays.
Mr. Eberly advised that all items are in order for this petition to proceed, there were no remonstrances received by his office, and gave an overview of the variance request.
Mr. Eberly stated that the fence just inside the northerly property line has been in place in their yard and across the street for years; and the neighbor across the street has already connected to the fence on their side with a variance in approximately 2011.
Mr. Trump and Ms. Millen explained that there is a fence in their side-yard that was built as part of the entrance for the subdivision and stated that they would like to install a fence of like kind and materials that would abut to it for the purpose of keeping their dogs safely contained in their yard.
Mr. Trump stated that the fence would extend from the rear of the home to the existing fence, with a 6-foot gate on the north side; from the rear of the existing fence to the setback line on the south side yard; run easterly to the rear of the home; and finally run northerly and attach to the other side of the house, with a 4-foot gate on that side of the property. Mr. Trump stated that Reeves, the fencing company that will be installing the fence, informed them that it is an aluminum fence.
Mr. Panczuk asked what the side-yard setback is for this home. Mr. Eberly responded that it has a 40-foot side-yard setback for the north property line.
Discussion ensued regarding the restrictions of a corner lot.
Mr. Sheeran asked if they have a homeowners association. Ms. Millen responded in the negative and added that they only plan to run the new fence up to the existing fence instead of attaching to it. Mr. Panczuk and others on the board stated that they would rather have them connect to it and maintain it.
Mr. Panczuk opened the floor for Public Hearing. Having no one wishing to speak, he closed Public Hearing and brought the matter back to the board.
Motion by Mr. Lareau to grant the variance request for the property located at 9316 Renaissance Drive for relief from Zoning Ordinance Chapter 13 § F5 C(ii), allowing a side-yard setback variance, with the contingency that the fence be no closer than 5-feet from the north property line, including the Findings of Fact:
Respectfully submitted;
Margaret R. Abernathy, Recording Secretary
St. John Board of Zoning Appeals
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