Board of Zoning Appeals - Regular Meeting

Heat. [Music] Heat. [Music] Heat. Heat. [Music] Heat. Heat. [Music] available to the tables to the right of the audience. This meeting is being recorded for the public record. Because of this, we request that personal conversations are kept to a minimum and cell phones are set to vibrate with any phone calls taken outside the chambers. If you're interested in commenting during any public hearing, please sign up on the sheets located the tables to the right of the audience. When your name is called, please step forward the podium. State your name and address for the record. Please address your comments to the board, not to staff or the appellant. Your comment should relate directly to the case at hand. We do understand there be there may be several persons who wish to speak. The chair may therefore impose a time limit for each person. Federal law federal law requires

the town make available to all attendees a title six public involvement survey. These surveys are on the table to the right of the audience. Members of the public who wish to complete this survey may do so and place them in the designated area. If because of a disability any person in attendance needs assistance or accommodation to fully participate in this meeting, please notify staff. Thank you for your assistance in facilitating a respectful, fair, and timely meeting. Again, welcome to our meeting. Please stand for the pledge of allegiance to the flag of the United States of America and to the republic for which it stands. One nation under God, indivisible, with liberty and justice for all. Can we take a roll, please? Paul Gugberger here. Annne Enman here. Katherine Ransburg here. Marcy Tassler here. Marcus Turner here. First item is approval of the minutes. These are from February 18th of this year. Is there any discussion? Any corrections? And if there are none, we'll entertain a motion. I move that we approve the meeting minutes of February 18th, 2025 as submitted. A motion by Mrs. Ransburg and a second by Mr. Genberger. Any discussion? All in favor say I. I. Anyone oppose? Minutes are approved. Move on to request for continuences or agenda modifications. Thank you, Chairperson Turner, members of the board. staff would draw your attention to the two petitions on the agenda. SE 2405 and V2

2407 at 7893 East US Highway 36. As I'm sure you're aware, this has been these have been continued a few times. uh petitioner is requesting addition uh one an additional continuance uh for two months to your June 17th hearing. Um without getting into too many details um the these cases do involve a property that has an outstanding um issue that needs to be addressed from the prior approval at the Lowe's property. the petitioner is not the property owner. So, there has been discussion with the property owner and the petitioner. Um, we are hopeful that they're going to make some proposal before the June hearing um that staff can consider and hopefully that we can come forward um and have the matter heard at that time. So staff is supportive of additional continuous request that would be without additional published notice but it would be with mailed notice by the petitioner and again to the June 17th hearing. So this request is being this request for continuance is because of things that are happening that are beyond the petitioner's control. Is that would that be a good way to say it? Yes, that that's fair to say. It involves um certainly it involves an issue that the property owner Lowe's um has as an outstanding obligation that staff feels should be addressed before there are any additional approvals at the site. So the petitioner is obviously working with the property owner. Um staff has had conversations with the property owner and the petitioner and at this point we're just waiting for a proposal to come back from

the petitioner and the property owner on addressing that obligation. So how many times have we continued these cases? Um I believe this has been continued three times. It was originally docketed in December, continued to January, then continued to February and then continued to today. So, how many times can they request a continuance? Uh, I believe your rules of procedure allow you to grant um with it's within the board's discretion to grant as many continuences as they believe are reasonable. They're only entitled, I believe, to one um by right, but you can continue it, I believe, as many times as you find to be appropriate. And have all these continuences been because of this the issue with Lowe's? Correct. Yes. I think that we ought to give the continuence because we're going to have to revisit this over and over again with other businesses unless we see this one through. I agree with that. But it it is concerning to me that we've got a third party who is interfering basically with the business of the town um because they are either not I don't know if there's contentious negotiations happening or they're just dragging their feet and not being timely in providing response. But I it bothers me that we've got an outside party who is not part of this proposal who is causing all these delays. I don't know what the solution is, but it's bothersome. And just to follow up, so if we get to

June and things aren't resolved, then we're still in the same situation, would we is it fair to assume that we would be seeing another request for continuence? Is that helping you to continue it or would it help to not continue it and to say like, June, we want you to come present. How how would that help staff? because you know you're the ones that are working on this. Yeah. So Steph's position is that we are supportive of continuing at this point because we do think there's been some progress made um however slow it has been. So we think this is an opportunity to resolve an issue that's been outstanding for many years um absent the town taking legal action. Um so if we can come to a resolution that's agreeable to both the town and the property owner um without a legal action that's always beneficial and if we come back at June in June and we haven't made any additional progress you know we might provide a different recommendation on a continuance at that point but um since we have seen some progress made Um, we think it's it's beneficial to continue it and Okay. and hopefully make more progress. All right. I move that we continue SC 2405 and V 2407 7893 East US Highway 36, excuse me. a special exception to allow for a drive-thru facility within tier one of the US Highway 36 overlay and a variance of development standards

to allow for drive-thru components to be located within the front yard along US Highway 36 to the June 17, 2025 hearing without additional published notice but with mailed notice to be sent by the petitioner. Motion by Mrs. Ransburg. Is there a second? I'll second. Second by Mrs. Inman. Any discussion? Roll call vote, please. [Music] Genenberger, four. Inman, four. Gransberg, four. Tachler, four. Turner, four. We'll move on to public comment. Would anyone like to speak? I got nothing. I got nothing either. So, with no one coming forward, we will close public comment at looks like 6:40. We have no old business. We have no new business. Uh we're going to go into our training session guys for coming tonight just for training. Yeah, much better. All right. Thank you guys for coming tonight. Um, so tonight I'm just going to go over some training. The purpose of training is obviously to prepare you guys for the cases that are going to come before you. Um, I've given you guys some written materials. A lot of this for a lot of you is going to going to be review, but we did have more than ever new cases at the court of appeals level

this year. So, some of it will be new and some of it will be review. So, if you guys will turn to page two of your materials. So the most important thing I think to remember is when a case comes before you just ask yourself what kind of case am I hearing you guys uh hear four different kinds of cases administrative appeals variance of development standards variance of use and special exceptions. Um so you'll just kind of say what kind of case am I hearing and then you can kind of go through the different factors that you'll be considering. The first case the one the first kind of case you hear administrative appeals is where you guys get your name. Board of Zoning Appeals um is also the least common kind of case that you hear, but it's still very important and often the most interesting kind of case. There's potential for you guys to get them every year. Um so it's always good to remind yourself what those are. Um in these cases, it's whenever um an appellant, someone that's agrieved by a decision of your staff um wants to come before you and ask you how either the zoning ordinance is interpreted or what it means or how it's being applied. So, in these circumstances, your staff is often administering your your UDO. They're issuing permits. Um they're issuing violations of the code and they're telling petitioners that come before you and the plan commission, this is what we think the code mean means and this is how you're going to comply. If they ever disagree with that decision, even if it's not the petitioner, it may be uh the community um at large. Um anyone who's agreved has the right to come before you and have you guys have a hearing on that. your um your review is essentially saying is our staff correct in their determinations or are they not correct or are they partially correct. So in those circumstances the staff will present their side the appellent will present their side and then you guys will have a discussion and you'll issue findings. So in this case you can say yes they're right no they're wrong or uh they're kind of right they're kind of wrong and this is what we think the case is supposed to the outcome should be. So we have some examples I'll kind of touch on them briefly. Um the one we

talk about all the time that happened here was the badass coffee case. Um this was when they came um for a sign permit. Um it was a coffee shop that had um like a burrow on it. And members of the community thought that the name of the business was profane. And so our administrator had to make a decision as to whether that was obscene or whether it was not obscene. Um and there was disagreement as to that. So, it became an appeal where the board of zoning appeals had a discussion as to whether that the name on the sign was profane or not. Um, and so that would be an example of something a decision you might have to make um in an administrative appeal. If you go to page three, um this is a city of Noblesville case. This is about billboards. Um many jurisdictions, especially in Indiana, have pretty much outlawed billboards, but there's a rule essentially that if you have one already existing, you can't force them to remove it. Um, so that's called legal non-conforming status. In this case, a storm came through, destroyed the billboard. Um, and they had to repair it. Um, in doing so, they rebuilt it about 3 in away from where there was originally built. Staff came out, said that you relocated it, you lost your non-conforming status, and therefore um, you can't have your billboard anymore. Billboard company appealed to the board of zoning appeals, which affirmed the decision saying yes, you relocated it, you lost your non-conforming status. This went all the way up. Um, and the court had to decide what does was that slight movement a move or was it a relocate? Um, and so the simple question is what does the word move mean and what does the word relocate mean in the context of city of Nobleville Noblesville's zoning ordinance. In this instance, the court said since they didn't define move and relocate in the ordinance, that slight movement isn't enough to be considered a relocation and said that sided with the billboard company. Uh the takeaway from this is, you know, when if you run into issues with your UDO, it's important to be clear um as to what the UDO intends. That's more on the obviously the town council plan commission side, but this would be something that would come

before you where you're deciding what those words mean. A new one this year is the Greenfield Avenue Properties case. This was out of Noblesville. Um this one dealt with a drug rehabilitation and job training facility for a conditional use permit. Um, in this case, it was a church that was operating or wanting to operate this facility. Um, the board of zoning appeals uh denied the permit and the church appealed saying that the denial of the permit infringed on their first amendment right um of free exercise of religion. The court, the board of zoning appeals affirmed the staff's decision and it was appealed to the court of appeals. The court of appeals ultimately said that the denial of the permit did not infringe upon their ability to exercise their religion even though they contended that it did. And part of the reason I bring this decision is not only to show you this would be an administrative appeal case, but also there's going to be three cases in your materials that touch on this exact subject, which is um D drug rehabilitation centers coming in. Um it's extremely popular all over the state of Indiana. We have tons of cases on the court of appeals level right now. A lot of appeals are being made. Um so I just want you to be kind of familiar with this issue because it's going to be coming before you both on a first amendment issue, free fair housing act, those sorts of things. So just want to point that out to you. Yes. In this decision again to support certainly we provide you with the memorandum memorandum decisions. Usually these cases aren't used as they're not cited by other courts in Indiana, but they're instructive because if we were to go to a trial court or court of appeals, they're still going to rule on our case regardless. And so we can kind of get a sense on how they're going to rule, how they're thinking, even if that case isn't actually something that can be cited amongst before the court. Precedent. It is not. No, it's just informative, not precedent. Yes. Yes, they could. Yes.

Not that I know of. No. Um, it could get appealed to the Supreme Court of Indiana. Yes. I don't know if Cersei has been denied. I haven't looked at that, but I I don't think so. Okay. So the next type of case, the most common kind of case that you get is going to be the variance of development standards. This is when a petitioner is asking from relief from your development standards. Often we see setbacks, building height, those sorts of things. Uh for this CA for these this type of case, we have our factors. Um and the ones I want to the two I want to touch on first is pract practical difficulty. Um, as you guys know, we changed our UDO this year to add new factors for you guys to consider. Um, but we still have our original three from uh, Indiana statute. Uh, just kind of want to review what practical difficulty means because sometimes it can be a little confusing. Um, practical difficulty just generally the courts interpret practical difficulty to mean that the strict application of the UDO will cause it will cost more a lot more. So it cause significant economic injury. That's what we really b it down to when we think about practical difficulty. It's the lesser standard in comparison to unnecessary hardship. Uh some examples are if we have to comply with the UDO, we're going to have to move the whole house is going to cost $75,000 when instead you could just grant us a setback variance. That could be an example of significant economic injury. Um you're also looking at other things though. You're looking at did the petitioner or in your UDO a former property owner cause this issue in the first place. You're looking at that and you're also looking at is there any other alternative? Could they have thought of something different that could have negated their their ability their need to come before you and ask for a variance of development standards. So, I've kind of got some bullet points for you here that you could kind of ask yourself that these are questions that courts ask straight out of court cases. Um, is the difficulty more than insubstantial? So, is this do they have to be coming before you? Is it just do they have to just pay to comply with your ordinance? Are they

going to pay a lot more to comply with your ordinance? Uh, is it the minimum necessary to make reasonable use of the land? So, when they're coming before you, are they asking for everything under the sun, or are they asking for just exactly what they need to achieve the purpose, their purpose, which is to make use of their land? Is there anything special about the property or the circumstances of the case um that was created by the owner's own action? And then, can the applicant um can they figure out something else? Can they find another feasible alternative that would negate their need to come before you and ask for a variance? So, these are just some things questions to ask yourself if when you're going through the cases and saying, "Hey, I'm not sure if this is a practical difficulty or not." These are just some questions that you can ask yourself. So, Anna, so when you talk about cost, does it cost more or a lot more? I mean, that that's a matter of perspective, right? It's like, well, what's a lot more? $100 could be a lot more to a person or 10,000 could be something that you know it's like that's a lot more I think of the we had a case about locating a pool in the sideyard or in the backyard cost a lot to put in the backyard and we we heard that so it's still in the sideyard but then can it be as wide as they wanted or did it need to be narrow so I mean so cost how do we how do we come to the point where it's a lot more because I'm like Hey, $5,000 may not be a lot more. Any advice or guidance on that? And and I wish I could provide you advice because obviously it's always going to be different. I mean, what is a lot of money? It's constantly changing and it will depend on the petitioner that comes before you to some degree. Um, but I think it's going to have to be discretionary to you. I I think when you see it, you'll know it. When when they're saying, "Hey, it's going to cost us hundreds of thousands of dollars for a simple issue that could be c fixed with a variance." I think it might it will jump out at you. Um I think if it's a close call for you then it then it may not be a significant economic injury, but I can't answer that question for you

because these cases I mean I've seen courts say significant economic injury on under 100,000 and I've seen them say it's not enough for a large company when they come before them for a half a million dollars. So it it I can't unfortunately provide you too much clarity on that but it will just depend on the facts and circumstances of the case. you know, a resifting rules. It says significant economic injury to be self-created must be no feasible. Feasible alternatives. Feasible is a subjective term to take Paul's point. But then under unnecessary hardship, case law says economic loss is not enough. And I I feel like where we struggle is that economic loss is not enough. Doesn't matter how much more it's going to cost you, you have to conform. we can give you a waiver. But then we also have this that says significant economic I feel like there are two conflicting uh rules coming out of these cases. One that says economic loss cannot be the only reason. The other one that says yes significant economic injury with feasible alternatives. And I think I can clarify that to some degree. We put both these are two different standards. So unnecessary hardship, those cases are saying you've met the practical difficulty threshold. It's going to cause you significant economic injury. That's not enough for unnecessary hardship, which would be your variance of use standard. But for a variance of development standard, we're looking at economic injury. So the cases are different because they're applying different standards. So for just development standards, we're just looking at practical difficulty. You're really focusing on economic injury when you're having a variance of development standards come before you. If it's a variance of use coming before you, you're looking at something entirely different, a much higher standard, unnecessary hardship, where you can take into consideration economic injury, significant or otherwise. But you also need to be looking at can you put this property to any use without um granting

a variance of use. So this is the is the yard state for variance of use. Practical difficulty is for variance of development standards. Yes. and we put them on the same page so you can kind of see because these are your two standard standards and see how they're different. But as far as variance of development standards goes, we're just focusing on practical difficulties. So significant economic injury and I will say to some degree it's nice it can be assist you and that it isn't a hard fast rule and what is significant economic injury because you have so much discretion on these cases that it's it's up to you to make that determination based on the facts ahead of you. Um, so it you're not trapped in just deciding, you know, there's no formula. So it can provide you some discretion in that regard. So when we have those discussions there, there's a couple things I'm thinking about is that and I know we've had um cases where we're discussing with staff um about the what's being recommended, maybe our perspective. The the thing I would ask is that as we get into some of these, I always look for um you to to chime in when maybe we're going off course or delving into things that we shouldn't be discussing in that case. Yes. Um because Dan has a way of giving a look. He does and saying, "Hey, you guys are you're way off course here. So, I'd ask that you jump in and and bring us back if you know we're deviating from where we need to be. Um, and I forgot my second point because I made that first point. I'll think he'll let me know what it is, but certainly I'd be happy to do that. Okay. So, if we'll move to page four, I'll come back to unnecessary hardship to kind of keep them separated. Um, we have your five factors now there. So uh the original three you guys normally deal with but we've brought in that the variance requested is the

minimum necessary and the need for a variance is not caused by the owner previous or present. So as we discussed in discussions of uh changing the UDO these really kind of are part of the standard of practical difficulty but this just makes it a little bit clearer for you. As I mentioned earlier this decision is discretionary. It's always important what kind of case am I hearing and what is my standard of review? uh discretionary you even if you think that they met all five factors you can say I still don't think that this is best for Avon as long as you have some kind of uh reasoning to back up your decision then you're able to make that decision you can ask what is best for the town um and deny it even if you think all of the factors have been met so let me this was my other point um I know that we've been asked to make sure that we're discussing and making the points to the criterion and make sure we get that on record. And there's been some cases where I feel like we just jump right to the motion after hearing um the the petitioner and staff. And I guess you or or Lyn and Paul to help us make sure that we've covered that because I think about I know Marcus has a couple times just gone in and said, "Okay, made sure we covered that to get it verbally on record." which seeing the meeting before this meeting is that does that I assume helps you guys that that verbal recording is something to go back and to show proof that things were considered. Yes. I would always prefer you guys have a conversation before you make a motion. Um because one way to challenge your decision is that you guys had preddecided. So you'd had some kind of conversation before. So how did you guys know that you didn't need to have any conversation? How did you guys all know that you agreed and took the motion? So, I'd always like to have something on the record in the event that the decision was appealed, for example, by the remmonstrator, even if you vote for it, the remmonstrators could say, "Why did you decide it that way?" I I have no nothing to base on why you guys you didn't talk about it. You didn't have

any kind of questions for the petitioner. Um, even if you have a public hearing, you should always discuss the case, discuss the factors, ask questions of the petitioner. It doesn't have to be a long process, but just if necessary, you can say, "Hey, what do you guys think about practical difficulties?" And someone will say, "Yeah, I think it's met for this reason." I mean, even that is enough, which is what the courts have said. Okay. Um, I'll kind of go conditions are for all of these cases because you can impose reasonable conditions on this. Um, I'll get back into kind of what we look for when we look for conditions. Um, but you can also grant a variance different than the request. So, if they come before you and say, "Hey, I want a 50 foot setback." You could say, "I'm only willing to give you guys 40." That's totally fine. You guys have the discretion to curate the um the granting of a variance to what you think is appropriate. Okay, variance of use. This is a little different and this is when we're going to get into the unnecessary hardship. So, this is when they're requesting relief from your use table. Um, and you might ask yourself, why would someone ask for a variance of use and not just reszone the property? And usually this is because they're small properties or small uses that wouldn't have a large impact on the surrounding area. So, for example, this may be a hair salon in a um neighborhood or a um child care facility in a neighborhood. That would be an example where we might not want to reszone that small parcel. We might want to just ask, can we use it for something different than we're than we're using it for. And so, um, for these sorts of cases, um, we have our five factors, but this is going to be our unnecessary hardship standard. So, um, unnecessary hardship is the higher standard. Um, so it's saying after we look at all of the facts together, can the property the property can't be put to any kind of reasonable use unless we grant relief from the UDO. So, this is a very, very high standard. It's essentially saying that the land can't yield any reasonable return um other than what the UDO says that it can uh be used for. And so on page four, uh if you go back a little bit, I've I've tried to put some bullet points in there. Um so at this, like you mentioned earlier, Katherine, this isn't

just economic injury. This is economic injury and can we not use the property at all anymore because we have to use it for what the UDO says it has to be used for. Um we're still looking at whether the owner caused this problem. We're still looking at whether this is the least necessary, but what we're really looking at is, you know, can we not use this property at all because of the topography of it, the shape of it, the location of it. It's not just that it's located in this neighborhood or it's a part of this development. It's saying there's something really unique about the circumstances of the situation of the property that essentially unless we grant relief, this property is not going to either develop or be used in any kind of reasonable way. It's a very high standard. Uh again, this is discretionary. even if you find it meets all five factors, you can still say no. Um if you can uh support your decision. So on that one, um how how does that work? Because if we say no, it's like, hey, the evidence supports this and staff recommends approval and we deny it because we don't think it's appropriate. I I'm like, how do we support that decision on record saying it's just not the right thing and we don't support that? We don't. Yes. Yeah, you still could. I mean, even though Okay, for example, public, it may not be injurious to the public health, safety, and welfare, but it may cause an increased amount of traffic that isn't in the best interest of a. So, you could still say it's not bad injurious to public health, safety, and welfare. And no, it's not going to substantially impact property values, but I still don't think that this is the right uh use of this property at this time. So there are still other um intents and different things listed in the UDO that the UDO is trying to achieve u that aren't necessarily always captured in all the factors that you're looking at and as long as you can look to one of those in the UDO and say yes the factors have met but this is part of the thing this is something we're trying to achieve through the UDO through our land use policies and I don't think that that those are achieved by granting this even though the other factors are met. So I would encourage you to just look through

the UDO especially the section that you're looking at for that use. Yes. Um just following up on that just curious what your opinion is like I understand that you can find all five factors in that deny something but I always also feel like when you look at the first one public health safety morals and general welfare that typically it seems like to me anything that you wouldn't want in the community somebody could make an argument there that whether it's public safety or general welfare like Is general welfare just kind of what's best for the community? Yes. So, is it better to I guess I'm kind asking is it better to always even though you could find say yes, all the findings are met, but we still are denying this to if there is a way to make the argument that one of the findings is met that you're going to be on more solid ground if there were a legal appeal or something. I would put it a different way. I think you you're going to be fine either way, which is why I put this in here to give you assurance that you can make the decisions that you think are best. Um, it's very rare that I I don't think I've ever seen you guys find that all the factors are met met and still deny it. So, generally speaking, there's a reason that you guys don't want to approve it and you usually say exactly why and it usually connects to one of the factors because you guys hone in on the factors like you're supposed to. So, yes, I would say if you if you don't think a factor is met, you should say that instead of saying they were all met and then find another reason. But it is possible to do so. Other board of zoning appeals have done that before and the courts will back them up. They back them up every single time. Okay. Same for the other one. You can grant conditions for this and you can also grant something different than the request. Okay. The last kind of case you hear is special exceptions. So obviously in your use table um there are certain uses that are listed as only by special

exception. These are usually uh uses by their very nature require some kind of uh oversight, a more intense look at the request uh by request of the town council when they adopted the use table. Uh the original for these is landfills. Yes, we know we need landfills and we might need one in our community. We just want to really pay attention to where we're putting the landfill. That's essentially the really general highle idea of why we would want a special exception. So obviously it has to be listed in the use table as a special exception. And then you have your four factors and three additional considerations. For this case, it is a ministerial review. So if you find that all three factors and four factors and three additional considerations are met, you must approve the request. For conditions, uh this kind of this applies to all the conditions for all the cases. We just put it here. Um you can grant you can require conditions on all all of your approvals. However, the courts have said these are the seven things we look at and whether they are uh legal or not legal for when you impose a condition. Nationally, we think about this as the nexus test. Uh we use lawyers use that in court cases all the time. We call it there's a nexus. Are they reasonably related? So, is what's being requested related to the condition that's being imposed? Um but really, you're looking at these seven things. Is it constitutional? Is it within your scope of authority? Um is it uh does it offend any other part of the UDO? Does it require the petitioner to do something illegal? Is it in the public interest interest? And this is kind of the nexus. Is it reasonably calculated to achieve a legitimate objective of the UDO? And it should not impose any unnecessary burden on the land owner. So in review of conditions, most cases are looking at permits. A lot of people impose per conditions on permits, but even for other cases, some examples of what would be an improper condition um could be um essentially that you require payment of like a mitigation fee for granting a permit. Um that would be exceeding your scope. You guys don't uh

impose mitigation fees. That's not within the board of zoning appeals authority. So that would be an example. um or there aren't a lot of examples, but the goal is is if they're asking for something, make sure that your condition is related to that request. So, if it's for a setback, make sure that whatever the condition is trying to achieve, it's trying to mitigate your concerns as it relates to the request. It's not just tacking on, well, now that you're asking for um a special exception or a variance, let me tack on these seven other things I'd like to achieve in the meantime. Make sure it actually relates to the request that's being made. Okay? Okay. And we've put into your no uh your materials all the different things that you have for special exceptions. You guys have a lot 69. Um so just being familiar, these are the if you're going to get a special exception, it's going to be on this table. Okay. If you'll jump all the way back to page 10, art of making findings, as Dan likes to say. Um you're required to make them by law, so you might as well do a good job while you do them. Uh, so under a there, the most important thing is asking questions and asking the right questions. So, as we kind of touched on tonight, figure out what your factors are and ask questions that relate to the factors. This is important because, well, you might as well ask questions about the factors because that's what you're supposed to do is figure out if they've met the findings or not. Um, but also because petitioners can appeal your decision to the courts because they can say that because you asked all these other questions that don't relate to the factors that you actually made your decision on all those unrelated things and therefore your decision was arbitrary and capriccious. So it makes our lives easier to defend you if it was ever appealed if you guys talked about the factors. Um, but also you just want to protect yourselves in that way. And the way to do that is just read your staff reports in advance and prepare questions on your own. Staff reports are great. They're a great starting point. You don't always have to agree with staff, but it's really important to know, why did staff reach the conclusion they reached? And then say, well, I don't I don't think they answer these questions for me, or I'd like the petitioner to answer these questions for me. And come to the meeting with those, and it'll kind of

guide you through the meeting. So, we don't go down the rabbit hole um in the meeting. Also, keep in mind that the petitioner has the burden to prove this to you. Just like in a court, uh the judge isn't going to make my argument for me or the other side's argument for me. they're going to expect you to make the argument. And if you don't do a very good job of it, that's kind of on the petitioner because they're asking for something, they should have to prove it to you. Uh, the reason I say this is often we're trying sometimes I see us try to we don't always ask questions of the petitioner. We kind of ask them of staff. Um, and I still want you to ask questions of staff, but I do want you to kind of if you don't think that they've answered a question, ask them because that's the best opportunity for you to figure out what you need to know and for them to say, "Hey, I think I've met these five factors for this reason." It's really is their burden. Okay. Oh, yes. So, I got to ask a question. So, there's two that pop to mind that always come up to drive-thrus. Yes. I always get that. And you know what we hear is, well, you everybody else has them. So, basically, they make reference that they've been approved in other areas. And yeah, I think we've tried to make the point that no one case sets a precedent for a follow-on case, which is something that if nobody else says it all, I would say it because just make sure they hear that. And as this board would change, I would hope that they would feel and be given guidance that you don't have to do that. But then I also heard from uh maybe one of your predecessors that well you can't be arbitrary in how you make that decision. So I'm I'm like if we say we're not going to give you the special exception for that drive-thru even though we've done it all up and down 36, is that going to cause some sort of litigation that we the town's in a bad position for? No, certainly not. Every case is different. The facts of every case is different. the design of the project is different. It's always going to be different. It's very fact-sp specific and no, you don't set precedent with your cases. Um, so in the event of

appeal, yes, they could probably say, "Yeah, everybody else in 36 has a drive-thru." But we would respond, "But that doesn't matter because they didn't prove they didn't reach their meet their burden of showing that they met all the factors." And so if you were to not grant a drive-thru because they didn't meet one of the factors, um, that would be within your discretion to do so. They have to prove that to you. It so yes, you can think about it. Yes, bunch of people have drive-throughs and we've talked about possibly amending the UDO to account for that, but every case is different when it comes before you and the cases that came before you and the ones that come after you. Doesn't matter. So on another case would be if an auto dealership came and said that they would need a 30-foot pylon uh sign to match other dealerships in the area um or it would cause them economic hardship that that any advice on that? I mean, is that one where it's like, okay, is that is that truly something that would be a special exception that we would need to consider, or would we question, does it really cause you an economic hardship or not? So, for that one, if they're asking for a sign, um, they'd have to prove to you what would what would be the significant economic injury is what I would have you ask them. And they would say, well, we have evidence that in our other businesses that have smaller signs, we make X less dollars every single year. That's what you would want to ask the petitioner. They can't just say, "Well, it's not fair. Ours is smarter. We'll make less money." They're supposed to present evidence to you on how much money do they anticipate losing, and then you'll make a decision as to whether that is significant or not. Yes. Yeah. So, and that's if you're not really sure, that's when you need to ask questions. Give me evidence. You know, how has this worked in other jurisdictions? How has this worked with your other businesses? Are you really sure you're going to lose a lot of money, or are you just speculating that you will? Because you should not make decisions on speculation. You should always make decisions on the facts that are presented in the actual case presented before you on that day. All right. Thank you.

Okay. We're going to jump all the way back. We've got a lot of cases to get through, so I'm going to try to touch on just other things I have to remind you of. On page 12, conflict of interest. You guys are great at this, but just as a reminder, you um cannot participate in a hearing if you are either biased or prejudiced, which would render you impartial or if you have a direct or indirect financial interest in the outcome. Direct or indirect financial interest should be pretty clear. Obviously, if you're going to make money or lose money because of a case, I you cannot hear that case. That's automatic. Bias and prejudice is a little bit tougher. Um, and the courts have sometimes waited on this to provide a little clarity, but the idea is that you're always going to have your own opinions. You're going to have your own emotions. You're going to have friends. You're gonna have family. Um, the key thing is, do you think sitting and hearing that case that those relationships or feelings or emotions are going to impact your ability to be partial? That's the ultimate question you have to ask yourself every single time. Just because you're friends with the petitioner or the person that's going to be negatively impacted is not enough is what the court has said. Uh I remember in the case the BCA uh president pretty much said I'm friends with everybody in this group and some I might lose friends over this but that doesn't mean that I can't be impartial and the court upheld that. What's most important is uh not making statements prior to the hearing that would render you impartial. So if at lunch or even to your family members you say I'll never approve a part anything to do with apartments. All it takes is in a case that we subpoena them. We depose them. They say yes they said that. Now you can never hear cases again about apartments. So it's really the stuff that you guys say can come back to get you. So it's just important that um if you really are impartial, if you really did feel that way, you wouldn't be able to hear those cases and you should know that. Okay, let's jump uh back to um let's go all the way back to page 14. So this is about defending BZA decisions on appeal. If your decision was ever to

be appealed, these are some examples. Um, so we look at number four on page 14. Um, this is the self- storage facility case. We've gone over this and you guys actually cite it during your hearing sometimes, which I'm always proud of. Um, but this is about the case where a self- storage facility came in uh making a request and the other businesses in town were monstrated and said, "Hey, we have too much self- storage in our in our city, so can you please not grant this?" And just as a reminder, it is not within the Bezy's purview to regulate competition within the community. um that is the market's job to do that. You're just thinking about land use. So we have too much fast food restaurants. We have too many car dealerships. We have too many banks. Chicken restaurants comes to mind. Remember the statements thing, Catherine. I'm just kidding. So just as a reminder, you get this argument all the time. This is it's not it's not your job to worry about whether there's enough or too few of a business in the town. Number five, um this is more for staff, but as a reminder, just to have petitioners always follow an ordinance. This case was kind of surprising, but this was the big solar development um up in Madison County. Um but essentially, the petitioner submitted like 13 of the 14 things that were required to uh build the solar farm. And their demonstrators came in and said, "Hey, I didn't get all the things I was supposed to get, all 14 things, so this is they shouldn't have granted this." And the court said, "That's correct." um when they submit things to staff and to you, it's not only for your benefit, but it's also for the public's benefit. So, just as a reminder, we have to follow our own ordinance. Okay, let's jump all the way back to um page to the 2024 cases. I think it's on page 15. This is the most cases we've seen in probably 20 years, all in back to back to back. So, um pretty exciting year for the BCA. Um I won't go through all of these. Uh you guys can review these in your free time, but I'll hit some highlights. So, the first case I want to touch on is the uh Typton County BZA case, Hope for Hurting. This is one of those examples I talked about earlier, which is drug

rehabilitation centers. Um, so in this case, our drug rehabilitation center came into a pretty nice neighborhood um with their intent of having two or three people that were in drug rehabilitation live there. Um, so they uh came to the BCA and the BCA denied their request to do so. In most of these cases, they're denied, which is how we end up in the courts. In the hearing, the petitioner explained all the security measures they're going to have, the background checks they're going to require, the drug testing they're going to require, and they presented actual evidence that there was no no effect on property values because of this. Remonstrators came in and said that they didn't want criminals in the area. Um, they didn't want increased traffic, but most of it was speculation and opinions and fears. Um, but there wasn't evidence presented, and the BCA still denied um denied the request. And a reminder for these cases is not only do we have the first amendment for the other case where the there was a church asking it for the religious mission but we also have something called the fair housing act. So people who are suffering or recovering from drug addiction are by definition persons with disabilities that are protected under the Fair Housing Act. So we always have to keep that in mind um and not make our decisions to to not allow something because of someone's status as u being in drug uh drug addiction rehabilitation. But the big takeaway for you really for this case is that the BCA found that this the court found that the BCA's decision was not founded in facts but on unfounded speculation. So in order to make a decision, make sure that you have uh substantial evidence to support your decision. Uh so listen to the demonstrators, listen to the petitioner, and make sure that whatever decision you make, you're considering actual facts that are presented before you when you make your decisions. In this case, the court overruled and upheld the granting of the request. Okay. If we'll jump to the Monroe County BZA case number C or letter C. Uh this is from my hometown actually. So this is an issue where the lawyer disagreed with staff. Um so this was a request for a permit to operate a

recycling center. There was nothing in the use table that related to this in this circumstance. So the planner made the decision that that sounded like garbage. So that was the use the standard they permitted and the BCA granted the permit. The lawyer later when they were drafting the findings um thought that it was actually a mistake and that it should be not garbage but scrap metal because that's actually what's going to be happening at the recycling center. The BCA then upon the advice of council revoked the permit and then that was appealed and the court actually said yes if there's a mistake in law you can revoke and go back and correct your decisions which was kind of surprising. So even if we get something wrong and it's a mistake of law you're allowed to go back and correct that decision is what this case said. Okay. D. Uh, BCA can enforce obligations to construct sidewalks. Uh, Dana, I've seen this in some other of our clients jurisdictions, but just as a highlighted reminder, um, this was essentially the city was enforcing its requirement that the petitioner construct a sidewalk. We do this a lot here where we're trying to connect or build our sidewalks. Um, and they said, "Hey, you really shouldn't be doing this through the BCA through planning. You guys should do this through, you know, a funding mechanism for public improvements." and the court said, "No, if if if you impose a condition or they make a commitment to construct those sidewalks, we can go in and enforce that." So, that's that and that would likely be something that come up on an administrative appeal to you, just as a heads up. But just a reminder that you do have the ability to enforce those obligations. Okay, I'll skip most of the rest of these and I'm going to jump all the way back to I um this is another drug rehabilitation um case and this case uh doesn't it's pretty much up in the air right now but this is one that went all the way to federal court and is still ongoing. It's been about four years that this case has been ongoing. Um but this is just another issue where the federal court um there was a denial of a variance for operation of a drug rehabilitation center and the court said there's enough there's enough facts here under that there's rights under the fair housing act that we're going to kind of make the um the BCA make their arguments as to

why they did not violate the fair housing act. So just as a reminder that um if we want to talk more about this in the future and I can provide more information to you on this but just as a reminder this is this is important and this is going on right now. And the last one, a fun one, denial of a lighting permit. So, this took place, this is a seventh circuit case, so this took place um up north up in Wisconsin, but in this case, there was a parochial school that um they had their Friday night, they had their football games on Saturday because they didn't have lighting for their football field. And they applied for a general lighting permit uh so they could have Friday night lights essentially. and the um city denied it and they appealed and they said, "Hey, all the public schools have lights and we're not allowed to have lights. So, this is infringing on our freedom of religion, freedom of exercise, and this is our our LOPA case." So, um this is federal law protecting uh religious land use. And the court said, "No, no. Um they're not, it has nothing to do with your religious mission that they denied it. It's because you're in a specific area where you're around a lot of residential um housing. we don't want bright lights shining on the into these people's back windows and said they're allowed to deny that it has nothing to do with religion in this circumstance and just because all the other public schools have Friday night lights doesn't mean that we're imposing on your ability to uh have free exercise you can still have free exercise even if you can't have football on Friday nights so just as a reminder that you always have these uh federal statutes freedom of religion our loopa um fair housing acts kind of um things just keep in your back of your mind when these cases come before you I think there are a lot of people Who would say football is religion? I think this could Yes. If this had been in a different part of the country, I think that we would have said it's Friday Night Lights is religion in every meaning of the word. All righty. Well, that's all I have for you guys tonight. I'd be happy to answer any questions either now or in the future. Um, but thank you to read this week.

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