MINUTES
AREA
BOARD OF ZONING APPEALS
Regular
meeting held in the Commissioners Meeting Room
Third Floor, Court House
MEMBERS
PRESENT:
Larry Willis, Chairman; Don Mottley, Vice-Chairman; Richard Medcalf , and Dennis
Taylor.
Also present were: Sherri Phillips, Secretary
and Executive Director, Leslie Shively, Attorney; and Susan Weigman, staff.
MEMBERS
ABSENT:
William McCune, Duane Erwin, and John Peninger
MINUTES:
A motion was made by Don Mottley to
approve the minutes of the last regular meeting of the Area Board of Zoning
Appeals held
The Chairman explained the Rules of
Procedure to the audience.
HEARING OFFICER:
BZA-V-04-21 – Applicant: Amanda
Cundiff Owners: Amanda & Kevin
Cundiff
Premises – Property located on
the S side of
Nature
of Case
– Applicant requests a Variance from the requirements as set forth in the
Comprehensive Zoning Ordinance in effect for
Ms. Phillips stated
this is the individuals that did not
send out the return receipts in the proper manor. She stated Mrs. Cundiff came
into the office and picked up a waiver for all her adjoining property owners to
sign. She stated after Mrs. Cundiff obtained all of the signatures a hearing
officer meeting was held and she approved the Variance.
SPECIAL
EXCEPTIONS
BZA-SE-04-27 – Applicant:
Premises – Property located
1300’ E of
Nature
of Case
– Applicant request a Special Exception from the district requirements as set
forth in the Comprehensive Zoning Ordinance in effect for
Attorney
David Pike, Attorney, asked in terms of how
those rules would be implemented, if they end up in a scenario in which they
did not have a unanimous vote either, as they say in
Attorney
Present were David Pike, Attorney with Pike
Legal; Bob Grant, Attorney with Pike Legal; Kenneth Ubelhor, owner; Roy
Johnson, project manager on behalf of Cingular Wireless; and Marty Brown, Real
Estate Appraiser.
The Chairman called for a staff report.
Ms. Phillips stated all return receipts from
certified mail to adjacent property owners have been submitted. She stated this
matter was continued from the
a.
Plat
book page
b.
Plot
plan:
1.
500’
vicinity map
2.
Legal
descriptions
3.
Flood
plain certification
4.
Site
plan
5.
Vertical
tower profile
c.
Tower
and foundation design and qualifications statement
d.
Map
of like facilities in vicinity
e.
Collocation
report
f.
Recorded
deed
g.
Copy
of real estate agreement
h.
Notification
listing
i.
Signed
statement regarding tower removal if it is no longer needed it will be removed
within 6 months.
The Chairman asked if the applicant had
anything further to add to the staff report.
Attorney Pike stated he has his presentation
prepared whenever the Chair is ready for him to proceed.
The Chairman stated they were ready.
Attorney Pike stated his contact information
is of record as part of the materials they filed as part of the administrative
proceedings. He stated he wanted to thank Ms. Phillips for her very hard work,
not only her, but her entire staff in dealing with what has been a complex
application. He stated the volume of paper work that has been submitted, he
dares to say it is A typical, but he hopes that reflects their degree of
commitment and effort to try to comply with not only the letter but also the
intent of the local zoning regulations and comprehensive plan. He stated they
have tried to do their homework and do it well in this case. He stated there
are three points he would like to cover before he begins his presentation in
chief. He stated first to comply with the twenty minute limitation imposed by
the regulations, he is going to use a summary submission format with later
adoption of his comments by his witnesses. He stated second they recognize that
towers are not popular and seldom are. He stated in dense commercial areas they
aren’t such as this. He stated however they have a mission imposed on them by
not only the federal communication commission, but home land security to
provide an appropriate level, not of just person communications capability, but
emergency response and home land security response capability. He stated if
they did not believe in that strongly, they would not be here with the room
full of people that they have here this evening. He stated they would not have
spent the time, money, and effort that they have in this application. He stated
finally Mr. Chairman, with his permission and the permission of the Board, this
is a pretty fast pace presentation he has, he would like to get through all of
it and defer all questions from the Board until the end of the presentation, it
would be helpful.
The Chairman stated that would be fine.
Attorney Pike stated first let us talk a few
minutes about the need for the facility. He stated there is a package of
materials that they have distributed to the Board. He stated he is going to be
walking though those materials on a summary basis during his presentation. He
stated at the end of his presentation he will be moving to admit them as formal
exhibits in this proceeding. He stated this is an area in southern
Attorney Pike stated they have thoroughly
investigated collocation options in this area. He stated if there was a
collocation option they would have availed themselves of it, because it is
cheaper, easier, and it is the right thing to do. He stated if they don’t have
to build a tower, they don’t want to spend the money, take the time, and make
the effort, in order to build a tower. He stated he would call their attention
to the exhibit showing the area water tanks and towers, an issue that was
raised in some previous discussions with members of the local neighborhood
community. He stated all of which are located well outside of their search
area. He stated again, in order to be able to serve this area, they have to be
within the search area and a copy of that map is included in the packet
submitted.
Attorney Pike stated he thinks their proposal
on balance was very well summarized by Ms. Phillips in her summary. He stated
he would like to point out a couple of highlights just to make sure they are
effectively understood this evening. He stated first of all collocation is
available at this tower site for at least three major wireless carriers, which
is an invitation for other wireless companies to be able to collocate on this
structure, there by providing improved wireless communications capabilities for
those companies as well in this vicinity without the construction of an
additional tower. He stated he is also authorized on behalf of his client to
indicate emergency communication antennae on behalf of government entities can
be located at this tower for a fee of approximately one dollar per month. He
stated the reason for the rental fee is so the computer systems can keep tract
of who is there and who is not there.
Attorney Pike stated the existing zoning is
“C4” General Commercial and that is a preferred zone for the placement of
wireless communication facilities under the terms of the regulations and
Comprehensive Plan. He stated lets talk a few minutes about the surrounding
area, some of which can be seen on the slide projected on the wall. He stated
first lets talk about the area to the South of the proposed facility. He stated
SR 66 runs across the southern part of the slide and this is an area of
intensive commercial development. He stated in some of the documents submitted
to the Board make that all too vividly clear. He stated as they flip through
the exhibits in front of them, they will see there is one billboard and high
rise sign after another in this immediate vicinity. He further stated all of
them are lighted as well. He stated it is important to note that their
facility, although taller, was specifically configured not to be lighted. He
stated under the circumstances the placement of a monopole in this vicinity is
not only appropriate, he dares to say from the high rise sign perspective; he
would suggest that it is effectively integrated with the existing land use
pattern in what is an intensively developed commercial vicinity. He stated he
has also provided the Board with a listing provided by the land owner of over a
hundred and fourteen business enterprises in this immediate vicinity again
documenting the extensive nature of the commercial development in this vicinity.
He stated to the Northwest of this site is an agricultural area zoned AG, a
large undeveloped area with an extensive mature planting material and trees to
help shield the base of the tower from those tracts of ground. He stated to the
East is a residential apartment building and is zoned again “C-4” Commercial in
nature and is shielded by extensive mature plant material. He stated they
supplied them with a number of photographs documenting the nature of that
mature planting and the nature of the shielding that it represents. He stated
to the Northeast is the Springston Subdivision, again they have an extensive
landscaping buffer in the form of a large number of mature trees the nature of
which is documented in the photographs submitted in the exhibit packet. He
stated finally to the West is a large agricultural area, but as they can see
from the flood plain map they have submitted, almost all of that is within the
flood plain and hence not suitable for the construction of a wireless
communications facility under the current provisions of the FCC regulations.
Attorney Pike stated he thinks if they take a
look at the nature of the exhibits they have submitted associated with their
filing, he hopes whether the Board Members are inclined to vote for or against
this application, that they will at least draw the conclusion that they have
made an effort to be thorough and professional and try to take into account
local plan concerns in not only their choice of location but also in terms of
the materials they have submitted to the Board. He stated in addition to plot
plans, other materials, tower and foundation drawings, they have also provided
a wealth of additional information including service affidavits, proofs of
service, photo simulations, tower safety report, radio frequency letter
discussing the need for the tower, aeronautical studies, FCC tower aero reports,
and RF exclusion letters. He stated they have submitted the additional exhibits
they have tendered to the Board in the package they gave this evening. He
stated they have dealt with some of those and let us return to some of those
now. He stated the reason he would like to return to them is to briefly discuss
several issues that where raised in their neighborhood meeting that they have
done their best to try to accommodate when possible.
Attorney Pike stated first of all safety
concerns regarding the tower. He stated they have submitted a report stamped
and sealed by an Indiana Licensed Engineer, a copy of which is in the materials
submitted to the Board, documenting that this tower is built to not only State
design standards, but to National design standards that are even stricter. He
stated it will be able to withstand winds way in excess of 70 mile per hour
with a full half inch of radial ice on a sustained basis. He stated ultimately those design standards exceed
the design standards for all commercial and residential facilities for this
area. He stated they have also provided the Board with appropriate
documentation to show the Board that this tower under current FCC regulations
is not required to be lighted. He stated if they are fortunate enough to
receive an approval from the Board will construct the tower without lighting
and the tower was specifically configured to make that the case so that it
could be effectively integrated or more effectively integrated in the area they
are seeking to serve.
Attorney Pike stated another area of concern
expressed by area residence was maintenance. He stated Cingular is responsible
for the maintenance of this compound and this tower. He stated make no mistake
about it, it is a small lease area approximately 50’ X 150’, the lease requires
them to do that, they would do it anyway, and they are committed to doing so.
He stated they will also be posting on the exterior of the facility a phone
number which anyone can call if they have any concerns regarding the nature of
the maintenance or operation of the facility and that number is manned 24 hours
a day. He stated next, another issue was tower removal in the event of disuse
in the future. He stated this has never happed in his representation of
Cingular in a multi-state area, but for some people this is an issue of
concern. He stated their lease makes provision for the removal of the tower and
restoration of the area to its current condition, and they have also filed with
the application a signed statement that the tower will be removed within 6
months of nonuse as required by the local regulations. He stated next, did they
select the design that would most effectively integrate in this area, is it
“stealthy” enough. He stated the application is for a 150’ monopole, not a
guyed tower, not a self supporting tower; the reason that type of facility was
selected was specifically because it is the type of tower that has the lowest
visual cross section of all the types of possible structures they could build
at this location. He stated they have configured it in a fashion so that it
does not have to be lighted, all of which, they believe, is a reflection of
their effort to be a good neighbor when possible and still provide the critical
services for their customers, the community, and the national mandate that they
have to serve.
Attorney Pike stated the next area of concern
is graphic simulations, they can see from the package submitted to the Board,
they were requested and they have been provided. He stated another area of
concern is alternate locations. He then stated more than 50% of this search
area, as they can see from the materials submitted, is located south of Highway
66, that is an area first of intense commercial development, but further south
there is extremely dense single family development with way more houses per
square mile than is the case to the North of Highway 66. He stated from a
planning perspective a smaller area is impacted and a small number of homes is
necessarily impacted as a matter of sheer mathematics by placement north of
Highway 66. He stated they have already alluded to the fact that the area west
of
Attorney Pike stated a final document in their
stack of materials they submitted to the Board is a list of stipulations and
these are voluntary stipulations. He stated they attempted to reach an
accommodation with the neighborhood association that did not work out; they
could not do everything they wanted them to do. He stated he is still willing
on a voluntary basis to do the things that are listed in those stipulations
dealing with screening and maintenance, tower illumination, and tower removal.
He stated he told people that he thought that was something they could do and
as a result that is something they are going to do, even though they were not
able to reach an agreement with them. He stated he hopes that is a reflection
and is seen as a reflection of the fact that they are more than just an
applicant, they are a utility, and they provide a needed service for this
community and they thought that was responsible. He stated he would encourage,
in the event they are fortunate to have an approval, that those stipulations be
incorporated as part of that approval.
Attorney Pike asked Mr. Brown to step up to
the podium and state his name.
Martin Brown joined Attorney Pike at the
podium.
Attorney Pike asked Mr. Brown if he is
familiar with the representations and the report that he eluted to in his
summary of it.
Mr. Brown stated yes.
Attorney Pike asked if it was truthful and accurate.
Mr. Brown stated yes it is.
Attorney Pike stated thank you.
Mr. Brown was seated in the audience.
Attorney Pike asked Mr. Johnson to step up to
the podium and state his name.
Roy Johnson joined Attorney Pike at the
podium.
Attorney Pike asked Mr. Johnson if he is
familiar with the rest of the presentation and documents they have submitted
and can he adopt it as truthful and accurate in his testimony.
Mr. Johnson stated yes.
Attorney Pike stated thank you.
Mr. Johnson was seated in the audience.
Attorney Pike stated towers are permitted as a
special exception under the terms of the regulations. He stated they have
worked hard to show that this should not be a special case, that this is not
just a good location in the search area; this is the location for this
facility. He stated they know that what they do is often times not popular, but
this gives new meaning to the term “NIMBY”, not in my back yard. He stated
everyone here, in all likelihood, has cell phones and depends on them and they
certainly will depend on them in the likelihood of a national emergency. He
stated it is their job to see to it that they can depend on them day to day and
even more important that the people that serve them can depend on them when it
really counts. He stated they have to build a network that can do that and that
is why they are here tonight. He stated they are encouraging collocation by
other providers at this facility in the hope that other customers will be able
to benefit from the construction of this facility. He stated at this point Mr.
Chairman, he would move to admit all of the exhibits he has tended this evening
as well as all the materials they have previously tendered in this
administrative proceeding as part of the record being forged here tonight. He
stated if the Board has any questions, he will be glad to answer them, and he
thinks that is under 20.
The Chairman stated pretty close, it is under
twenty but close. He then called for questions by the Board.
Don Mottley asked if directly to the west,
just past Frame and
Attorney Pike stated that is way out of their
search area and would not meet their objectives.
Larry Willis asked if there would be any
intrusive lighting on the tower.
Attorney Pike stated none, the only light is
typically a small light over the door to the shelter and if that is problematic
they will tell people to bring a flash light.
Mr. Willis asked if it would be a wall pack on
the side of the building.
Attorney Pike stated exactly, but no lighting
on the tower itself. He stated they shortened the tower enough to see to it
that it would be the case.
Mr. Willis asked if there was any other
location within the vicinity that would be better suited for this cell tower.
Attorney Pike stated no sir, ultimately where
they put this people are going to be able to see it, and if they move it, it
would be close to someone else. He stated this, he believes, is the best sight
and he believes they have built a strong case for that being the case in the
materials submitted, or at least they have tried too.
Mr. Willis asked if in the service area that
they have now they are having customers that are having dropped calls and
things of that nature.
Attorney Pike stated the technically nature of
the problem is called that there is no dominate server as they can see from
letter submitter from the RF Engineer, which means this is something of a neither
land, in between other towers and other cells. He stated the results it that
there is not enough capacity and the cell phone is constantly trying to lock
onto one or more facilities, because it can’t “make up its mind” would be a way
to think of it. He stated the result is that you have dropped calls,
inconsistent and unreliable calls, placement of this facility at this location
will correct that problem.
There being no other questions by the Board
the Chairman called for remonstrators.
The Chairman then reminded the audience that
there is only 20 minutes in total for remonstrators.
Richard Hoffman stated he lives at
The Chairman stated yes.
Mr. Hoffman stated he would first like to
thank the Board for giving them the chance to voice their option as citizens of
Mr. Hoffman stated Senator Leahy and his staff,
when they wrote the findings, and of course this are critical when they
introduce a bill, says that, “The placement, construction, and modification of
wireless facilities near residential communities can greatly reduce the value
of residential properties, destroy the views from properties, produce radio
frequency interference, raise concerns about potential long-term health effects
of such facilities and reduce substantially the desire to live in the areas of
such facilities.” He stated now that is a finding of Congress, that is not his
option. He stated also, “States and local governments have traditionally
regulated development and should be able to exercise control over the
placement, construction, and modification of wireless facilities through the
use of zoning and other land use regulations.”
He stated that is what the Board is doing here tonight. He stated also,
“Alternative technologies for the placement, construction, and modification of wireless facilities may meet
the needs of a wireless service provider in a less intrusive manner than the
technologies proposed most wireless services provider, including the use of
small towers that do not break skylines or protrude above tree canopies.” He
stated interestingly the trees that were eluted to by his predecessor are all deciduous
trees and of course in the winter, it won’t be long before the leaves will be
all gone and that tower will not be hidden by the trees. He stated in light of
what he stated above one of the purposes of these bills also says it is going
to hold accountable applicants for permits for the placement of facilities for
the truthfulness and accuracy of representations and statements placed in the
record of hearings for permits, such as tonight, licenses, or approvals. He
stated they realize that local officials such as themselves face significant
challenges as they try to protect local interests like imposing reasonable land
control while, at the same time, promoting the development of new
telecommunications technologies. He stated the key section of the
Telecommunication Act of 1996 is section 332 C 7, gives them a great deal of latitude,
as long as they put their objections in writing and support it by evidence,
they are permitted by federal law to deny these requests. He stated it states
that they shall also not prohibit the provisions of personal wireless service.
He stated not building this tower does not prohibit the provisions of wireless
service in that area. He stated he uses his phone every day he happens to call
Mr. Hoffman stated gentlemen and ladies, this
is bottom line a market share issue, they know it and he knows it. He stated he
retired from a fortune 500 company and he was in marketing, he knows how he
used his legal department, its bottom line is market share for cellular
wireless, they know that. He stated there are service providers available in
Mr. Hoffman stated he is going to leave the
Board a lot of materials that will site cases that hopefully they will take the
time to look at these other cases that have prevailed. He stated the issue will
not go away, it is only going to get worse. He stated there are going to be a
million cell towers in the
Mr. Hoffman stated he hopes they will look at
the evidence that he has collected for the Board, he is not a professional and
he does not have all the legal terminology that they have. He stated he does
not have copies for everyone, but he does have copies of everything. He stated
they as a group of voting citizens of
Mr. Mottley asked what the Senate Bill number
that he said was.
Mr. Hoffman stated the House Bill is 5631 and
the Senate Bill is 3103.
Mr. Mottley asked how long Mr. Hoffman has had
this information, because he would have liked to have had some of this
information he shared before, so he could have a chance to review it.
Mr. Hoffman stated he put it together between
2 and 4 o’clock today. He stated he is sorry about that, he works and is not a
full time attorney who spends his entire life working on cell tower issues and
he did it as best he could and he took today off so he could have some time to put
all this together. He stated he has some more information he could almost not
handle it and he barely touched the surface of the cases that have been won
against cell tower placement in the
Richard Medcalf asked how many names are on
the petition Mr. Hoffman has.
Mr. Hoffman stated they quickly got 95 out of
the 150 homes and most of them work during the day and have a difficult time
getting them.
The Chairman informed Mr. Hoffman if he handed
them the petition they would keep it.
Mr. Hoffman handed the petition in and stated
to keep it.
Mr. Medcalf asked if the 95 was households or 95
signatures.
Mr. Hoffman stated it was 95 signatures and he
is not sure how many households. He then submitted the material he spoke on.
Mr. Mottley stated in the 8 years he has been
on the Board, this as been the best presentation by any resident on this issue
and that is why he asked for those numbers, he wanted to make sure he had them
right.
Lisa Rush stated he lives at
Mr. Medcalf asked if this was appropriate, is
the pink dot what they are looking at as to what they are proposing right now.
Mrs. Rush stated that is a different map from
what she has. She stated she cannot reference that to the map she has, she does
not see the lots that are divided in Mr. Ubehlor’s subdivision.
Ms. Phillips stated what Mrs. Rush is
referring to is Mr. Ubehlor has a primary plat approved for this property and
it has not been recorded, so there are proposed lots and are not recorded at
this time so they do not exist.
Mrs. Rush stated she would be happy to leave
this with them so they know the location they are speaking of.
Mr. Medcalf stated he just wants to get a
clear understanding that where their association Okays it to be moved, it does
not impose on someone else.
Mrs. Rush stated well that is one thing, it
would not impose on anyone else. She stated it would still be on the, she has
to admit she is a woman and directions are not her thing, Northeast corner of
Highway 66 and
Mr. Medcalf asked if they told them that sight
would be workable for their problem.
Mrs. Rush stated Cingular says it does work
for them. She stated Mr. Pike did bring up one comment, which he did not say to
their community, when he spoke to the neighborhood association that the tower
would have to be taller. She stated there is a slight elevation; she does not
know what that elevation difference is, so she does not know what the height
difference would be. She stated she cannot imagine the height difference being
that much more, if it had to compensate for the height difference in the
elevation, she still thinks the neighborhood association would be fine, because
there is a row of trees between their housing communities and that location,
which will help disguise the view of the tower from the residential area. She
stated Mr. Pike also brought up that there are billboards along Highway 66, all
of the things that obstruct the view are next to the highway, which is where
they are asking for the tower to be located. She stated closer to Highway 66
and
Mr. Medcalf asked if their location would be
closer to
Mrs. Rush stated yes, and her home is the closest to
Ms. Phillips asked if Mrs. Rush was talking
just north of the storage buildings.
Mrs. Rush stated yes.
Mr. Medcalf asked if there were maps.
Ms. Phillips stated there should be a map in
Mr. Medcalf’s packet.
Mr. Medcalf asked what exhibit that was.
Ms. Phillips stated they are in exhibit B.
There being no other remonstrators, the
Chairman asked if the applicant had any rebuttal.
Attorney Pike asked if the Board would like to
do questions or should he do his presentation first.
The Chairman stated just the rebuttal.
Attorney Pike stated he obviously disagrees
with the legal conclusions that were voiced earlier, but this is not the time
or appropriate venue to discuss what the law is and isn’t. He stated besides
this Board obviously has an attorney that will interpret those requirements for
it.
Attorney
Attorney Pike stated he noticed his book open
and thought that might be the case. He stated this is an emotional issue and
lots of times they are able to defuse those emotions and deal with those
issues. He stated they were successful in part based on all the people who are
not here, but not entirely successful. He stated he wishes they could have
been, but they can’t be in this instance. He stated the one issue that he
thinks does deserve some leave of response is alternate locations on the
Ubehlor property. He stated first of all as he has indicated anything closer to
Kenneth Ubehlor stated basically when they
look for a sight like this they also look for height, that was one of the
things so they could pick it up. He stated they also look for screening and if
they would go by that sight, they would notice there is about a 7 to 8 foot
drop in that corner. He stated the bottom of that 7’ drop on the tower site
basically has a land berm behind it, then the trees behind it or probably 50 to
60 feet tall. He stated those are pine trees on the back side of those. He
stated a monopole is about 3’ in diameter and even if the leaves are off the
tree in the winter time, the pole will blend right in there with the branches
of the tree. He stated the only portion of that tower will be 75 to 80 feet of
the top of it. He stated he guesses a person could hide the tower in those
trees at which point their cell phones would not work.
The Chairman stated he thinks the question was
why he could not move the tower over to lot 7 or 8 on his property.
Mr. Ubehlor stated he did not know where 7 or
8 is right now, but those other sites have utilities located in them, forced
mains, some have drain problems, and that is why they would not work well in
those areas. He stated in their history they have probably developed over 3000
parcels of property here in
Attorney Pike stated no matter where it is on
the property everyone will be able to see it, they cannot hide it. He stated it
is a tall structure and they have tried to make it as short as possible and
still be able to provide the service needed. He stated they have put it at a
location and structured it at a height that makes it possible for them not to
light it. He stated anywhere in this area they are still going to be able to
see it. He stated he wishes that was not the case, but laws of physics tell that
it is the case. He stated he would like to thank this Board for its consideration
this evening. He stated this is an emotional issue for the people who are here
this evening and they have tried to do their best to present the best possible
planning justification, which is what they think and hope this Board will
choose to act upon.
Attorney
Attorney
Mr. Mottley asked could the Board make a
motion to continue this to have time to look at some of the evidence that the
citizens have presented and also would give this body a chance to have all 7
members present at the next meeting.
Attorney
Mr. Mottley stated he knows they have had
other cases like the lions and things that they tabled so they could look at
the sight and came back. He stated there has been several cases the Board has
done that. He stated he does have a question for Mr. Pike. He asked Mr. Pike
when he had a seminar here several years ago, he attended it, he talked about
collocation, he talked about at Cincinnati where they located on high school
stadium lighting, there are so many of these signs and things shown here, and
he believes at one time there was a sign there at the corner of 66 and Bell
Road that Mr. Ubehlor came and got a Variance on the sign because it extended
out over a building, are there any of these signs out there that would give
them the same height and collocate on them.
Attorney Pike asked if he was in order to
respond.
The Chairman asked Mr. Mottley if he was
finished with his question.
Mr. Mottley stated yes.
The Chairman stated he could respond.
Attorney Pike stated great question. He stated
the answer is yes, they looked at every one of them and they are all way to
short. He stated in order to meet the service objectives they have to A: Be
within in search area and B: it has got to be tall enough and there is nothing
tall enough in that area. He stated as he has pointed out during his
presentation in chief although these facilities are lighted and theirs is not,
theirs will be much taller than those structures. He stated none of them are
even close to that height and they modeled them all, no way. He stated they
have done some of the billboard signages in very densely populated metropolitan
areas where they were seeking to fill a very small service objective. He stated
that will not work here, they have to have the height they are requesting to do
the job.
There being no further questions by the Board
the Chairman called for a motion.
Don Mottley made a motion to table this until
the next meeting and at that meeting allow additional evidence by both parties and
hopefully the other Board members will be here. He stated he knows so often
when it is put down, 4 of them have to vote the same way, for it to either pass
or deny that if there had been one more Board member it might have been
approved. He stated he would also like to get copies of the material presented
tonight.
The motion was seconded by Richard Medcalf and
unanimously carried.
Ms. Phillips stated that the next meeting will
be October 27th at 6:00 PM.
The Board took a 5 minute recess.
CONDITIONAL
USES:
BZA-CU-04-30 – Applicant: Crofts
Carriage Service by Thomas Crofts, Manager
Owners: Thomas &
Premises – Property located on
the S side of Jenner Rd (S 150) approximately 300’ E of the intersection formed
by Jenner Rd and Baker RD (W 425). Boon Twp. (Complete legal on file.) 4177 Jenner Rd
Nature
of Case
– Applicant requests a Conditional Use approval to allow a Private Recreational
Development including hayrides, small weddings, and birthday parties in an “A”
Agriculture and “CON” Recreation and Conservancy zoning districts.
Present was Thomas Crofts.
The Chairman called for a staff report.
Ms. Phillips stated all return receipts from
certified mail of notice of this meeting, except from Roslin Road Development
have been submitted. She stated the white pay stub has been submitted and was mailed
to the correct address. She stated the applicant is requesting a Conditional
Use approval to allow a private recreational development including hayrides,
small wedding, and birthday parties. She stated the applicants have submitted a
letter which lays out their plans. She stated they have also submitted a plan
& drawing which shows 7 areas of their proposed use and the applicant will
need to explain further to the Board his plans. She stated the property is
approximately 50 acres zoned “A” Agriculture and “CON” Recreation and
Conservancy. She further stated the surrounding property is zoned the same,
with there being residences to the East, the property to the North, South, and
West is vacant. She then stated there is some flood plain on the property and
any additional structures that are built will need to be either not built in
the flood plain or submitted to the Department of Natural Resources and submit
a certified plot plan showing the elevation being 2’ above the base flood
elevation.
The Chairman asked if the applicant had
anything further to add to the staff report.
Mr. Crofts stated first off after reading all
this and getting all this and talking to the lady from Victoria National there might
have been a little misunderstood as parking for their events and so forth. He
stated they intend on keeping parking, he thinks it says in the letter, they
are going to build parking in the rear, which is not there yet and will not be until the pit
is filled the rest of the way. He stated they intend on parking in the two
front pastures marked A and B. He stated they are not theirs; they are leased
from the adjoining neighbor to them and they intend on parking in that pasture,
but if it does rain hard it will be hard for them to put cars in there without
tearing up the pasture and getting stuck. He stated until the parking situation
is taken care of in the lot in back, they are going to park in there unless the
weather is coming upon them at which point they have a driveway they will park
down, but there may be some over flow on the road out there. He stated they
have taken into consideration that there is a large ditch on one side and they
are going to put up stakes with caution tape so that they cannot park there,
they will just park on one side of the road which is towards the property and
flat, and there should not be any problem with that.
Mr. Willis asked if Mr. Crofts has checked
with the
Mr. Crofts stated no.
Ms. Phillips stated she does not think the
County will allow parking on the road and that probably should be a condition
on this approval.
Attorney
Mr. Crofts stated he should have just kept his
mouth shut and no one would have know and it would have probably been alright.
He stated he does not do that, but the parking will be along on side of the
drive and in the pasture that goes back to the existing barn. He stated any
events later on will be a half a mile off the road back on site 5 which will be
a 25 car parking lot.
Mr. Willis asked if this was the trail road
around the property.
Mr. Crofts stated yes and anything they do
will be entirely on their property, the only thing that would not be is the
parking in the front pasture, but they do lease that from their neighbors.
Ms. Phillips asked who he leased the pasture
from.
Mr. Crofts stated the Hildebrand’s, who did
get a certified letter from them and are aware of it.
Attorney
Ms. Phillips asked wouldn’t the Hildebrand’s
have to agree to them using it for parking and be a part of the application.
Attorney
Mr. Crofts stated that any lease they give him
would be year to year, he is not going to give him any long term leases. He
then asked if he would have to come in every year if he has a different lease
every year. He then asked what concern is it of this body what he does with the
property.
Attorney
Mr. Crofts stated there is 5 acres for
parking.
Attorney
Mr. Crofts stated so in other words keep his
mouth shut because he has said two things just to help them all out and ended
up getting himself in trouble, so unless they have any questions for him.
Ms. Phillips asked with the 50 acres of
ground, why they can not park on their own property.
Mr. Crofts stated that 99% is reclaimed strip
mine.
Ms. Phillips stated which means it has pits
and things.
Mr. Crofts stated exactly and forested.
Mr. Medcalf asked if he is basically doing
this to have horse buggy rides.
Mr. Crofts stated it is part of their long
term goal that they have hayrides on the property.
Mr. Medcalf asked if the hayrides would be
open to the public.
Mr. Crofts stated yes, during the month of
October.
Attorney
Ms. Phillips stated yes with a Conditional Use
approval. She stated she did not know that he was going to use the adjacent
property owners ground as part of this application, it just says pasture, it
does not say parking. She stated on a previous application, similar to this
they were going to use some of the adjacent property owners ground for pasture
ground, they had to be a part of the application, and they had to sign the
application, and had to be present at the meeting. She stated they even
continued the matter because they were not here.
Attorney
Mr. Crofts asked what if there was no parking
in the pasture and the parking would all be along the driveway and spilled out
onto
Attorney
Mr. Willis stated he is not comfortable with
parking on the street. He stated there is a tremendous turn at Jenner and
Baker. He stated he cannot speak for the sheriff, but more than likely he would
have those cars towed and that would not be good for business. He stated this probably
needs to be refiled to include the neighbors property for the parking area,
they need to be a part of the application, or he needs to show where the
parking is going to be on the property.
Mr. Crofts asked if it could be amended so
that they approve it along with him bringing in something from the neighbor
which is not going to be a problem what so ever.
Mr. Willis stated if he stays on his property
is what he has notified the adjacent property owners to is one thing, but, if
he is going to use this other property then the adjacent people who were not
noticed, they he would have to start all over.
Attorney
Mr. Willis asked if Mr. Crofts could show them
where the parking is going to be on his property and continue to hear the
application.
Ms. Phillips stated it is Mr. Crofts' choice;
he can either show the parking on his property and proceed with the hearing
this evening or he can show the parking in the lease area and continue it to
the next regular meeting.
Mr. Crofts asked if later he did start to use
the lease area for parking would he still have to come back before this Board.
Mr. Willis stated if he would start using the
agricultural property for parking for this use, then he would have to get a use
on that property as well.
Mr. Crofts stated he is dealing with a time
deadline. He stated he’s only planning on doing this during the month of
October this year and it would be a moot point after this year.
Mr. Medcalf asked if this Conditional Use is
for just this year.
Mr. Crofts stated no, the parking situation is
only going to be a problem this year.
Mr. Willis stated he doesn’t have the
available facilities to have a parking lot on his property at this time because
of the spoils and water that is in this area and he was going to use his
neighbors pasture area for parking which he leases.
Mr. Crofts asked if there was anyway to get a
Variance to allow parking or the Engineer could allow parking of any kind.
Mr. Willis stated he is not sure what the
County would do on that.
Attorney
Mr. Willis stated they have to operate within
the Ordinance’s of the County and the State and Federal Laws.
Attorney Shively stated even if the Board
would approve this this evening, they are going to require him to stay on his
property for off street parking and if he cannot do that, then he will have to
come back to the next meeting with another conditional use to utilize that
leased property for parking.
Mr. Willis asked if they could go ahead and
hear this petition that is in front of them this evening and then he can make
application to use the pasture at the next meeting.
Attorney
Mr. Medcalf stated if he comes back with the
additional application, that would not be an issue anymore.
Attorney
Mr. Crofts stated if he is understand this he
is going to have to have all the parking on his property, which is physically
impossible to him. He stated if they operate during the month of October and
put cars in that pasture, they could theoretically come out and shut them down.
Attorney
Mr. Willis stated the neighbors to this
pasture have not have been noticed that it is going to be used as parking.
Attorney
Mr. Medcalf asked if he was going to tell them
about all of the sites.
Mr. Crofts stated sure, site 1 is existing and
no change other than the line on the aerial photo might be off a little because
it shows his barn being on the adjacent property. He stated there is an
existing 4 horse barn, small hay shed beside it, with a small parking lot,
which will not be used for parking during October because it will be used for
people to gather in. He stated site 2 is the existing neighbor’s barn and run
in shed. He stated site 3 is a proposed implement shed for the tractor and bush
hog, it is totally shielded from the road and nobody sees it. He stated site 4
is probably a half mile from Jenner Road, so nobody sees the sites at all, it
is an existing cleared site and it will be a barn with hopefully some day an
apartment in it so they can live on the land. He stated site 5 is directly
across the road and will be a 25 car parking lot.
Mr. Mottley stated he would like to go back to
site 4 for a second. He asked will the small apartment be for rental or for his
personal living quarters.
Mr. Crofts stated there are two proposed
apartment sites.
Ms. Phillips stated that would get into having
2 residences on a piece of property and would have to do a variance for that.
Mr. Crofts stated then nix the apartment; he
just wanted a place for someone to stay free of charge that would take care of
the property. He stated site 6 is the house which they will eventually live in
and site 7 is a shelter house which will be used for the hay rides.
Mr. Medcalf asked if the existing road shown
on the plot plan is dirt, gravel, or paved road.
Mr. Crofts stated from
Mr. Medcalf asked if the adjacent property was
only going to be used for parking.
Mr. Crofts stated yes, pasture A and B are
leased from the neighbor and pasture A is where they wanted to put the parking.
Mr. Medcalf asked if pasture C was Mr. Crofts.
Mr. Crofts stated yes.
Mr. Mottley asked if this was on the East side
of 261.
Mr. Crofts stated no it is on the West side of
61.
Mr. Mottley stated he thought Jenner ran East
to West.
Mr. Willis stated Jenner does run East and
West, but this part of Jenner is between Indiana 61 and
Mr. Mottley stated he was over the other way.
Mr. Willis stated he thinks he is a little confused
right now. He then asked if he was asking for all of this tonight or just what
is he asking for.
Mr. Crofts stated the horse barn and operation
that has been going on with Crofts Carriage Service has fallen under the
Agricultural aspects. He stated the fact that they want to have hay rides and
have something other than private parties and being open to the public, that is
when it gets to the line of running a business in order to get the hay rides
and so forth.
Ms. Phillips asked if Mr. Crofts wanted to
amend his application this evening to not include pastures A and B shown on the
plot plan and ask for approval without those areas.
Mr. Crofts stated yes.
Mr. Willis stated he still has concerns about
all these sites.
Mr. Mottley stated he has another question.
Attorney
Ms. Phillips asked Mr. Crofts if he is asking
for hay rides, small weddings, and birthday parties, that’s it.
Mr. Crofts stated that was correct.
Attorney
Mr. Crofts stated he entirely expected to have
to come back before the Board later on.
Mr. Mottley stated he had a question for the
attorney. He asked if there should be a hold harmless agreement if he is going
to have public out there and some of them are dirt roads.
Attorney
There being no other questions by the Board
and no remonstrators the Chairman called for a motion.
Don Mottley made a motion to approve
BZA-CU-04-30, subject to the following conditions:
1.
Subject
to any required Federal, State, or Local permits being obtained.
2.
Subject
to the property being in compliance at all times with the applicable zoning
ordinances of
3.
A
sign not over thirty (30) square feet in area related to the use conducted on
the property may be erected.
4.
Subject
to no on street parking.
5.
Subject
to driveway entrance being upgrade per the Warrick County Engineers
specifications.
6.
Subject
to all rules and regulation of the Local and State Health Department.
7.
Subject
to hayrides, birthday parties, and weddings.
The motion was seconded by Dennis Taylor and
unanimously carried.
OTHER
BUSINESS:
None
ATTORNEY
BUSINESS:
Attorney
EXECUTIVE
DIRECTOR BUSINESS:
Mr.
Medcalf stated he has a questions. He stated they come in here and see this,
this evening. He asked why can they not get this stuff earlier.
Ms.
Phillips stated he can, just come in the office and get a copy. She stated
everything is filed 3 weeks before the meeting
Mr.
Medcalf asked if they could have it 3 weeks before the meeting.
Ms.
Phillips stated yes, the applicant has to file it 3 weeks before so that it can
be advertised.
Mr.
Mottley stated but they still would not have had the new stuff that was present
here this evening.
Ms.
Phillips stated but all the applications are there and she thought all of the
Board knew that. She stated she thinks if someone is going to be a Board Member
they should come in and get a copy of the applications.
Mr.
Medcalf stated he thinks they should take it home and go through some of this
stuff.
Ms.
Phillips stated when the members get the agenda they should go by these places
and look a the site.
Discussion
was held on what members can and cannot do.
Being
no other business the meeting adjourned at 8:00 P.M.
Larry
Willis, Chairman
ATTEST:
The
undersigned Secretary of the Warrick County Area Board of Zoning Appeals does
hereby certify the above and foregoing is a full and complete record of the
Minutes of said Board at their monthly meeting held September 22, 2004.
Sherri Phillips, Executive Director &
Secretary