Board of Zoning Appeals - Regular Meeting

[Music] Heat. Heat. [Music] Heat. Heat. N. [Music] Hey, [Music] hey, hey. [Music] [Music] Welcome to the town of Avon board of the

zoning appeals meeting. If you are interested in having a copy of the agenda, they are available on 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 all cell phone ringers are turned off with any phones taken outside the chambers. Hearings on individual cases will be continued in will be conducted in accordance with the board's rules of procedure. Planning staff will first introduce the case, provide a summary, and make a recommendation. Petitioners will be given up to 10 minutes to present their case. Persons or groups opposed to the proposal will be provided a total of 10 minutes to present objections. Persons or groups in support of the proposal will be provided with 10 minutes to present comments in support and any individuals shall be allowed a maximum of three minutes. A person representing a group or organization shall be allowed a maximum of five minutes. The petitioner shall then have five minutes for rebuttal. No further testimony will be heard unless it is at the discretion of the board. If you are interested in commenting during any public hearing, please sign up on the sheets located on the tables to the right of the audience. When your name is called, please step forward to the podium. State your name and address for the record. Please address your comments to the board, not to the staff or appellant. Your comments should relate directly to the case at hand. We do understand there may be several persons who wish to speak. The chair may therefore impose an alternate time limit for each person. Thank you for your assistance in facilitating a respectful, fair, and timely meeting. We also wanted to point out it looks like there's only three of us here tonight. Uh therefore, to approve any request on the agenda, it will take a unanimous vote and anyone who wishes to may request a a continuence by right. With that, welcome to our meeting. Please stand for the pledge.

To the flag of the United States of America and to the republic for it stands one nation under God indivisibley and justice for all. Can we have roll call please? Anne Edman here. Katherine Rinsburg here. Marcus Turner here. We'll show Marcy Tassler and Paul Guggenberger absent.

First I'm first item on the agenda is the approval of the minutes from August 26th, 2025. Were there any comments, concerns? And if there are none, we'll entertain a motion. I'll make a motion to approve the minutes of August 26, 2025 as written. Motion by Mrs. Inman is our second. I'll second. Second by Mrs. Randberg. All in favor say I. I. Anyone opposed? Minutes are approved. Next item is request for continuences and or agenda modifications.

Excuse me. Thank you, Chair President Turner, members of the board. Um staff would draw your attention to items SE24-05 and V24-07 both pertaining to a request for a Dutch Brothers coffee establishment. The petitioner has requested that these two petitions both be withdrawn and this only requires acknowledgement of the board chair. Okay, with that we will withdraw those two items from old business and just this is the Lowe's outlot situation. Correct. Correct.

Okay. Old business. We'll go straight into new business. This is V2504 Village Place Town Homes Fence. Thank you again, Chairperson Turner, members of the board. V25-04 is a request for a variance of development standards related to a privacy fence at the property known as the Village Place Town Homes. Specifically, it's a variance of UDO chapter 5.11D1 to legally establish an impervious fence in a drainage easement. The property is actually technically in common areas of the subdivision, which I don't believe has a technical address assigned, but it's behind the townhouse units that will be addressed as 8779 to 8985 Willis Way. The common areas are a couple of acres. I believe the um the overall property is over 10 acres. Um this is a look at the site here. So this is County Road 900 here along the east side of the property, US 36 down here. This is the the Village Place Town Homes property. Um the fence is kind of circled in this blue oval here along the south property line. You have Costco abuing to the south. The Ace Hardware and multi-tenant commercial property that's currently underruct under construction also to the south. You have the YMCA property to the west. And then you have single family homes that are within county jurisdiction to the north and east. Um as well as a church to the north, which is also in county jurisdiction.

Just kind of walk you through the site here in case you haven't been there or aren't familiar with it. This is facing north along County Road 900 right here. This County Road 900. This is the subject property with town home buildings under construction. Some of them are at or near completion. I'm not sure if any are yet occupied. Um this is the fence in question and I'm standing on the property to the south which is under construction. So this is just turning to my left about 90 degrees looking mostly west which again you see the privacy fence that runs almost a quarter of a mile all along the south property line. Again the the townhouse is on the subject site here and the construction site to the left. And then this is just looking on the subject site property as you can see the fence um and where it sits in relation to the townhouse buildings. And then finally just looking south from the interior of the site from Willis Way which is the east west street running through the development facing south you can see the fence here along the perimeter. This is Costco behind and then the Ace Hardware construction site over here. This is a copy of the village place town homes plat that was recorded laying out the the lots as well as the common areas and drainage and utility easements. Um I circled these two notations here because these labels indicate county road D and county road E. It's probably actually a little clearer if you look at the screen behind you which is slightly less blurry. Um, I circled those because underneath the labels for the common areas, it indicates D and UE, which labels that that is a drainage and utility easement.

So, the fence starts about here and runs generally along the property line [Music] going west all the way over to the border of the site with the YMC YMCA property. This is uh the site plan that was submitted by the petitioner. Again, here's the townhouse property, the south property line. The fence is located just inside the property line. Their application indicates that it's approximately two feet off the property line. Um, and you can see the the fence is this line here, which I think has little X's on it. And then this line here is noting a storm sewer pipe that's buried underground. And you'll see inlets along here. Um, that's important to note because the fence doesn't interfere with access to that storm water infrastructure. And also, it should be pointed out that storm water flows east and west along here. It's not intended to flow across the property line north and south. Impervious fences or walls are prohibited within drainage easements in order to prevent interruption of storm water flow. As I mentioned, the fence roughly delineates the south property line, separating this residential site from the commercial developments to the south that are both existing and under construction. The fence isn't within the low point of the drainage easement where storm water would flow from east to west. Therefore, it shouldn't cause any problem with storm water flow. Um, and for that reason and for the fact that it doesn't interfere with access to the underground storm water pipe or the drainage inlets that the town might have to maintain at some point. The Department of Public Works has specifically indicated that they have no objection to the location of the fence. Now, in evaluating the variance of development standards, you have five findings that you need to find are met. Three of those are statutoily required.

Um and then the fourth and fifth are the ones that the town has adopted as a stricter test than the ordinary practical difficulties test which statute allows. So quickly those findings being essentially that the the variance not be detrimental to public health safety, morals or general welfare that it not be injurious to the use or value of adjacent properties. that there be a practical difficulty that would result from strict application of the ordinance, that the variance relief that is requested is the minimum necessary, and that the need for the variance is not created by the owner previous or present. Staff believes that um well, staff is pretty confident that we believe the first four findings are met. We don't believe that a fence um that is typical of a residential development would have any negative impact to the public or to the use of or value of adjacent properties. And again, as I mentioned, it does not interfere with storm water flow or access to storm water infrastructure. We do believe that the presence of a uh drainage easement on uh most of the area between the rear of the town houses and the south property line does present a practical difficulty in be able to install a privacy fence to separate or provide some screening between this residential site and the commercial properties to the south. And we believe that it being near the property line and out of um well out of the the the low point of the swale, it would represent the minimum necessary to address said practical difficulty. Um where we run into a little bit of an issue is with the fifth finding requiring that the need for the variance

was not caused by the owner previous or present. And it does appear that the need for the variance may have been caused by the owner who platted the site um created the drainage easement and then installed the fence without making application for a permit from the town um in the drainage easement. So in summary, we're confident that the first four required findings would be met, the three that are statutoily required by state law, as well as the first finding that the town has adopted as a more stringent practical difficulties test that the relief request would be the minimum necessary to address the practical difficulty. Um it's just that fifth finding that the need for the variance not be essentially self-imposed um that staff has struggled with. So if the board believes that all findings have been met, then we'd recommend approval of this variant subject to substantial compliance with the site plan that you saw. However, if the board does not believe all the findings have met been met, then we would recommend that you deny this variance request. With that, I'd be happy to answer any questions the board may have.

Questions for staff? Yes. So, do I understand it correctly that Lonard did not come to the town first to det ordinances before putting up the fence? That is correct, Paul. We didn't we didn't have that plat map in our in our packet. Um, and quite frankly, I don't think the information I wanted to see is on there. Um, you say that the fence is 2 feet off the property line. So, I'm assuming that that is 2 feet north of the property line. And

correct if you look at the the site plan exhibit that the petitioner submitted which is in your packet. I mean it's it's difficult to see but it certainly appears that the fence line is shown just north of the property line.

So f first of all what there's infrastructure on the ground. There is a pipe. What's the size of the pipe and where is the pipe located? The pipe is should be located where this solid line indicated with the ST mark for storm water where that line is which uh the petitioner might be able to give more information on the size of the pipe in a specific location that they believe it is from the fence. Well, our the quite frankly the the language of our ordinance is kind of silly with respect to the fact that we're not going to impede overland flow. This is about access to infrastructure. So, I think the location of the pipe is important. The size of the pipe is important because if anything needs to be done, the town's going to need to get an excavator back there and dig it up. And if that thing is 2 feet off the fence, we're going to have a problem. But the waiver is simply to have to allow for an imperous fence. Correct. It's it do I understand the the placement of the fence is not the issue. The question is that it's an that they are they've put in an impervious fence without permission. They needed to do that because it was within the ease the water easement and the argument is the water is flowing east and west. Therefore, an east west fence is not going to cause problems. Is that

correct? And if this fence were u an impervious fence like either I mean chain link probably wouldn't be required in in this scenario, but like a um like a rod iron open fence, it it wouldn't be prohibited within the drainage easement. It's just impervious fences because of the ability to um to impede storm water flow. Now, the ordinance, I believe, does require that that any fence in a drainage easement be at least 5 feet from uh a storm water pipe underground. And this should be I'm you know, of course, we're relying on information um submitted by the petitioner. So, some of these questions you might want to ask the petitioner as well because we don't have a

Right. Well, that that's why that's why I was asking the the size of the pipe and how far it is from the fence,

right? I mean, there is a requirement in a storm water management ordinance that easements must be 10 feet um from the top of a bank or on each side of a channel or each side of the center line of an underground pipe 36 in in diameter or less. I'm not a storm water guy, but I would guess that probably with the size of this development, the pipes are less than 36 in. So that the easement has to be 10 feet on either side. So that would imply that the storm water pipe should be at least 10 feet from the property line and if it's two feet inside the property line as the application indicates then it should be 8 feet from the storm water pipe. Um and again I would note that we did talk to the department of public works and they are aware of where the fence is and where the uh the storm water pipe is and they have no objection to the variance. The other I guess my other concern was that when I looked at the when you had the pictures up there, it showed pine trees behind the fence and I'm going presumably that's directly over storm water pipe and that that that creates another impedance for

staff to get back there and do their work. So, to answer your question about the size of the pipe, Linda has informed me from a review of the plans that it's a 15inch pipe, which would be well under the 36 inch um standard that would require a 10-ft easement on each side. Um I I I don't know if I can comment to whether there's any concern from public works about the trees that are in the easement. Um, but I would just say to the board that the trees are not part of the variance that's being requested. We're only discussing the fence. Um, and if there's an issue with where the landscaping is, public works will be able to address that.

Has the DPR been approved for this? I'm assuming it is. It looks like everything's um this this I don't believe would have had a DPR being that it's zone residential. Um the final plat would have shown landscape plans that would have been approved.

Okay. I mean, but there's nothing restricting having landscaping. No, just that it can be ripped. So, Linda's indicated that part of the pipe is actually 18 inch and part of it 15 inch. Um, and there's nothing restricting having landscaping in the drainage easement, but being in an easement, it is subject to potential removal by Department of Public Works if necessary to access. And so there's not an issue with the location of the fence. It's just the fact that it's impervious and it's not supposed to be. or because I heard you were talking about 8 feet and this is only two feet from the the fence is only two feet from the pipe. Correct.

That's correct. The only issue is the the imperousness of the fence. The fence is two application indicates the fence is 2 feet from the property line which means it should be at least 8 feet from the underground drainage pipe and the inlets whereas the ordinance requires it to be at least five feet from those. So there's no issue with the location of the fence. The loca the the issue is simply that the fence is impervious and would not allow water to flow through it if water were flowing north to south be. So the fact is that it's impervious in a drainage ement. We're we would be recommending approval but for some concern about the fifth required finding that the town has added um because we don't believe that storm water should be flowing north to south. So it shouldn't cause any impedance of storm water flow and it shouldn't cause any um issue with access to the storm water infrastructure as indicated by the director of the department of public works. Was the town given any notice that a fence at any point in the plat review or any or landscaping review or anything like that that there was going to be a fence erected?

Not to my knowledge. Okay. And Paul, you said the the water flow was east to east to west. And yeah, that's probably true based on the placement of the pipe because of the slope of the pipe, but really what the ordinance is getting back at about overland flow is the surface flow. So which way does the grade go and which way does the does the overland water flow? That's the real question here, right? And that's the the the plans show that the grading has a dip in the drainage easement near the center of the drainage easement which is where the pipe is which is where the inlets are above it. So

So so you're saying that the the surface grade is east to west in a central east west and a and converges. Well, in the area of the drainage easement, it's from the north end, it's sloping in towards the pipe. From the south property line, it's sloping in towards the pipe. And then as it gets in there, the it flows east and west, but there shouldn't be water running from the adjacent site to the south onto this site. they will have their own drainage infrastructure to deal with their storm water and the water from this site shouldn't be flowing across the property line to their development. So that's why public works doesn't have a concern with it impeding water flow. Okay. Any other questions for staff?

Not for staff. We are ready to hear from petitioner Just make sure that green light is on. Good evening HWC. Thanks for the very detailed uh summary of the situation here. I guess the only that I could add before answering any questions is that on the primary plat and on the secondary plat

before we get into questions. Let's open the public hearing on this. It's uh what is it? It's 6:53. Is anyone signed up to speak? We'll open the public hearing now. No one signed up to speak? No. And is there anyone that wishes to speak? Now with no one coming forward, we will close the public hearing at 653. Okay. Questions?

I guess my question is, I mean, LAR is not some fly by night organization. You guys have been around for quite some time. You have good reputation. You've got legal on your staff. Why did you not make sure that the fence placement and the type of fencing was in compliance with the ordinances?

I guess maybe you know we proposed the fence and the ordinance says that can't have a fence that impedes drainage flow. Fence doesn't impede drainage flow. And so I guess it that wasn't indicated to be a problem until after the fence was constructed. I I don't know that that's just um that just seems sloppy to me. I'm just to me you should always dot your eyes and cross your tees on on everything, especially for you know if if you were some local guy who was doing his first project, it'd be a little more understandable, you know, learning the ropes. But you guys have been doing this for a long time and that is bothersome to me that Nobody thought, let's just make sure that that's what that actually means. So,

well, and and again, to my concerns, this really isn't about overland flow. It's about access to the fence. And I don't have any information in my packet that tells me how far the pipe center line is from the fence or the property line. Didn't they say two feet? Well, it's two. The fence is 2 ft from the property line, but we don't we don't know exactly where the pipes are. Pipes are

we don't we don't have any and how are we supposed to how I say we how is the town supposed to access that and maintain it when you know when you have a problem it's going to be a big problem. That whole back area is going to flood. It's infrastructure that the town's accepting. How are they supposed to service that when there's this fence? But that's that's not what's being asked. I mean the according to staff the only thing that they don't find an agreement with is criterion five which has to do with what was a self-created and you know access to being able to do infrastructure repair or that kind of stuff I don't think is part of what we're being

that's why drainage and utility easements exist that's their whole purpose I know that but that's not what's being asked today we're being asked to to we're being asked does you We need to meet all five criteria and staff believes four criteria have been met but five may not have been. Well, and I'm questioning whether some of those other criteria met. I mean, well, that's true. You were you were going to public safety and property values and I mean that all that's part of this conversation. You said you can give some information.

Yeah. storm sewers an additional property line of separation between the pipe and the fence and the pipe is roughly 3 ft. Okay. Okay. That that that's helpful information that resolves that. Yeah. size utility and drainage ement. Correct. In retrospect, if that would have been stopped short, you know, if we would have drawn a line 2 ft north and stop the drainage ement there, we wouldn't be here.

Okay, that makes thank you for bringing those dimensions. That that gives me a little bit more comfort.

If I might, I'm sorry. Go ahead. I Well, I was just going to ask, could you put the picture of the of the fence back up again?

Um, do you have something that shows the fence? Well, what's the one before that? I guess we can't see it. So, that one. So, the fence goes all the way down to the ground. Uh, yeah, it's probably off the ground. Yeah, the panels don't touch the ground at the bottom.

So, I guess then that creates So, I guess then we get to what's the definition of impervious? Because if it's a solid fence, but you've got space underneath it, then is it truly impervious? I mean, to me, a a um if you had like they do out in Arizona where there's cement block, it is impervious. I've had those fences before. You don't get through it. Is this really I wouldn't consider this impervious. If water can get out underneath, you know, if your cat can dig a hole and get out underneath, it's not imper or dog rather.

Yeah. So, I mean, I can cite from the UDO that any fence, wall, or structure within a swale must allow for the movement of water through the swale. The area between the finish grade and an elevation one foot below the top of the swale must have a minimum unobstructed pvious area of at least 20%. for fences. So, can you put that in English and and it doesn't and it doesn't seem like there's a soil here. It's flat and it's piped. Well, 20% of one foot would be a little over two inches,

which And we've got you've got three inches. Yeah, I think in this photo you can see the Oh, okay. We can see it there. By the sign to the right of the sign. We're not in the parallel.

I don't think that's impervious. Well, I think this is an interesting case because u all without getting hung up on the definition of impervious, the staff's conclusion is that they don't think there would be any any impeding of surface water flow because of the way the fence has been constructed and designed. So, it really presents a very unusual case to the BCA. And the um the second thing the second thing about this case is that um given the fact that the budding properties are both commercial, you have a future Ace Hardware and you've got Costco behind it. Um this is a case where you might think about using your discretion um like we talk about in training about you know what's the best thing here. So, if the fence if if the fence doesn't impede the flow, um the BCA could use this discretion to say, you know, the variance here gives us a better result than a denial. That's up to you all. But that's just something to think about. If the fence created an impediment, this would probably be a pretty easy case, right? This would be easy

if this was a cement block fence. Sure. But I don't think it's impervious, which means I don't think a waiver is even necessary. Well, I understand. But but potential. What how do you define impervious? Sure. Well, I think what I think that traditionally in our ordinance, the type of fence solid fence is thought to be impervious, whereas fences that are not solid or slatted and have space are thought to be are thought to be uh pvious regardless of of the installation.

Correct. So what Paul did, I think rightly so in his staff report is talked about well although it it looks like an impervious fence, modifications were made in the implementation, I'll call it construction or implementation that um made it so there'll be no impediment and that's why he supported the u you know that's why he found positive on the on those factors. But I think that I think that yeah, you you could say, well, you know, but but factor five is a hard one because uh I really think that uh the petitioner rightly said it that uh slightly more precise drawing of the easement would have uh obiated the need even to have this hearing. It was kind of that I would call loose uh concept of the drainage and utility easement led us to where we are today. But again, the BCA has discretion. And if if you lived in those town houses, you would probably want a privacy fence. And although the commercial uses on the southside probably have no concern about it at all, um again, the result here may be better if there is a privacy fence. You have that discretion. Um you don't have to exercise the discretion you have, but you do have that kind of discretion. I think we should grant the waiver myself. Um because number one, I just I I understand what the definition of impervious and non-imperous means according to the rules. But I think that is fairly restricted. You know, I think it's just very hard. We see that there's a clear gap that looks like more than three inches to me.

Um that if Oh, first of all, we've got the situation of the how it was constructed and the way that the land is graded. So water is not going to be expected to go anywhere except along the fence line east to west. If we have a massive rain that creates a a flooding situation in that area where water spills out and goes out, it can go underneath the fence. The fence doesn't imp doesn't impede it from doing that. So, I'm inclined I'm not sure that a waiver is even necessary, but I'm inclined to grant the waiver. That's my position. Variance or variance. Sorry,

last night. That was last night. Sorry, I got to put a different hat on.

I would uh if I may point out in response to one of the questions one of you, I believe had about whether a fence was shown on plans that went through the platting process. Um, and I indicated that I was not aware of that being shown. Linda has been able to uh pull up plans that went through the plat process and there is a landscape plan that does show a fence indicated in this general location near the south property line which is labeled as a privacy fence. Um I don't know if Mr. Taylor would have any additional comments on that. Um you know typically you don't get you don't get to deviate from the ordinance just because something slipped through and whoever reviewed those plans two years ago roughly didn't catch that. Um, but it is something I think for you to consider that they did give that indication. Again, that doesn't absolve them of the requirement to apply for and obtain a permit, but it does show that there was intent to do offense similar to this.

And and that was what the comments that we got from the petitioner was first thing you said was that they had been included in that I I think the existence of the privacy fence on the plat and uh showing the intent uh again um lends uh more weight to granting the variance because it is consistent not only with the presentation but it clearly shows that we that town staff at least had one opportunity to stop them before they before they built the fence. And again, using your discretion as to what's best for this particular site in the town that that should all be taken into consideration.

I do have a question. Is the definition of impervious and non-imperous is that something that who determines what that definition mean? Is that statute? Is that your staff? They're the zoning administrators. They decide what we're doing in our ordinance. Okay. And I can address that the UDO defines imperous as incapable of being penetrated semicolon not letting water through. So the town would look at any solid fence as is it referring to something impervious

the material or just a fence because you could have a fence you could have a chain link fence that has somebody has put I've actually seen this because I come from white trash country where somebody has put um um boarding along the bottom to keep dogs from digging out, you know, and So technically that non-imperous fence would become imper would be I'm confusing myself would become impervious because of that.

I don't know that we need to go through the hypotheticals of if you weaved something into a chain link fence would it be impervious or not for this purpose a solid vinyl fence is clearly impervious. Now, as we've discussed, there there is a method that it would appear that the ordinance would allow um for such a fence if it were lifted up off the ground adequately. Um, you know, I'm also aware that town staff has in the past historically had concerns about whether or not um, you know, how high off the ground something would need to be because in the event of flooding, debris and and sediment could, you know, block that area if it's if it's only a small area under a fence.

But the definition is assigned to the material, not the installation. Is that correct? Well, I think you're kind of parsing. I'm not sure. Maybe I'm misunderstanding. Well, I mean, a solid vinyl fence is a design. Design would be the better way to think about it. Okay. Thank you.

Because materials could vary, but we generally think of a a fence without space between the the elements of the fence. Traditionally, we've said that's impervious. But again, uh Paul in his report went to great lengths to say why he believes that even though it has that definition, it doesn't it does not impede the flow. And again and um I think that's important maybe to move to impervious but does not impede again open the door for Paul's analysis which I thought was good about the function of the fence and I think that's the most important thing in terms of this. The other thing I would say staff has sometimes been concerned about fences in various places when the water flows toward the fence

and that 12 in height will allow for quite a bit of flow. I'm not an engineer, but if you think about it, that would allow a little bit of flow. Uh again, uh I think Paul's report rightly points out that the way this uh the contours are on this property, uh water to the south is going to flow south, water to the north is going to flow north, and that the only water we're going to really be dealing with will be um the water that's on the ground right by the fence. So, we're not there is no major swale or there's not like the land of the south is higher. I I thought that Paul's analysis of that was very good. Also, the fact that the drainage mechanisms to the north of the pine trees there you can see in the picture are obviously lower where the pipe is. So, it appears that and obviously that that area is also lower than the the um the base level or the foundation level of the town home. So you can kind of see that there's been uh contouring done so that the water will flow away from the fence. I think that's really important too because in cases where we've had enforcement on this and I've been involved in those. It's where a fence was constructed right where we expected all the water to flow. And that's different here. I thought the staff report went to these links to talk about what we could expect in a rain event and Paul's conclusion was that he thought that the measures taken in terms of the spacing and also other measures were adequate to not lead to the impediment of flow. Well, I think if you to me it looks like the the grading has created a a wide shallow culvert for water to or basin, if you will, between the town homes and the trees. And so water on the fence side will flow in that way. Water on the cond on the town

home side will flow in. So it all gathers in that area. Um so I mean I I still I still think the waiver should be granted. So with the clarifications from the petitioner on where everything is, I'm perfectly happy with criteria 1 through 4. The big thing sticking out here is the need for the variance was not cor caused by the owner previous or present. Yeah, I think our our hang-up there relates to the fact that the privacy fence was shown on the plat and approved. And so that concerns me because then the uh petitioner thought they were they were fine to go ahead with the way that was. And so they could have drawn that line differently. We wouldn't even be having the conversation. But I think that um I think that the petitioner thought they had the approval to go ahead and put a fence there because it was shown in both their preliminary and their final plat. If we if the staff and it wasn't the staff then, but if the staff had caught that and said, "No, no, no, you can't do that." Then we probably would be having a different kind of conversation. They could have amended the plat and created that drainage and utility line farther to the north a couple feet. that's probably would have been the easiest way to rectify that. Uh and and maybe maybe even easier than a variance. But again, I think this is where uh I think that's the those are the facts that uh would lead me to say those are noteworthy facts that should be considered. If those facts weren't here, I feel the opposite.

Okay. Um got one more question for you. Dan, we we've run into this situation in the past and we we've had a variance. It's been within the last two years where we had a residence come in. I believe it was over in the Austin Lakes area and we had granted him a very similar variance. But we also said, "Hey, um the next time you do major repair on that fence or need to replace it, you're going to move it out of the drainage and utility easement. Is that appropriate to do in this situation?" request that same agreement.

Well, I'm glad that you remember that and I like that way of thinking. I think in this case there may be nowhere to move it to. Um and and so the um and also the lack of impediment makes me think differently, but the real cure for this would be just a a replat. If if the development of the area were different and there was going to be development, say residential development to the south here, we might think about that. But I think that in this particular case, um the the petitioner has nowhere really to go except uh closer to the property line, which their attorney doesn't want them to get that close to the property line because, you know, property lines are. So, I think it's different, but I I do think there are many cases where that kind of a condition is really appropriate here. I think they're kind of backed up against the wall as far as they can go.

Okay. Thank you. I I agree that if staff had caught this earlier and said yes or no, then then we or had said no and then the fence went up anyway, it would be a different conversation. But fact is staff didn't catch it and I believe the petitioner took that as TASA approval for what they intended to do. So I don't know that it can be said that they caused this because they didn't they didn't put the fence up contrary to what they'd been told.

Okay. Any other discussion? We'll entertain a motion. I move that we approve V2504 Village Place Town Homes fence, a variance of development standards of UDO5.11d to legally establish an impervious fence within a drainage easement because it will meet all the requirements for variance of development standards under state law and subject to the approval to the approved findings of fact. A motion by Mrs. Ransburg. Is there a second? I'll second. Second by Mrs. Inman. Any discussion? Roll call vote, please.

Enman four. Ransburg four. Turner

four. Thank you. Um, our next item on the avail our next item on the agenda is VU 25-05 advanced automotive. Thank you again, Chairperson Turner and members of the board. VU2505 is a request for approval of a variance of use of UDO chapter 2.10E to provide for an expansion of an automotive repair use within tier one of the US Highway 36 overlay. The property is located at 8397 East US Highway 36, a little less than a half mile east of Dan Jones Road. I'm going to get into details on the property, but it consists of the legal description and the site plan that were submitted. The property consists of four platted lots. Lots one and three of the gatherings minor plat one of Infinity Subdivision. So lot one of the gatherings is a little under an acre. That's where the automotive repair use exists and wants to expand. The overall site is about 6 and a half acres. Lot one of the gatherings again where the use would where the use is and and is requesting to expand is zone C2. The remainder of the property is zoned I2 and that's a look at the property. So this is US 36 to the north. Down here, hard to see, but that's Kingston

Street to the south. This is lot one of the gatherings, lot two of the gatherings, lot three of the gatherings, and lot one of Infinity Subdivision. This is generally the area that we're going to be discussing, although we'll touch on some of what has occurred in the past and is ongoing here as well. But this is the building in question fronting US 36. The existing auto repair use is the western most tenant space and it's requesting to expand into the adjacent space to the east. So it would take up approximately half of that existing building. The site was originally developed as a lumber yard prior to incorporation of the town of Avon in 1995. In 2006, the lumber yard went away and at that time there was a resoning for the northernmost lot, what is now the northernmost lot. Uh it was reszoned from I2 to C2 and the entire lumberyard property. It was at the same time subdivided into three lots known as the gatherings. So in 2006 and 2007, development plan review approval was granted by the plan commission to renovate the building on lot one for commercial retail uses and the two buildings on lot two for industrial tenants. Subsequently, a special exception was granted to allow an indoor commercial recreation use on lot two in the I2 district. And it's believed that this automotive service repair use, although previously under different ownership, began in 2007, which but would have been just prior to the adoption and implementation of the US Highway 36 overlay regulations that went into effect in 2008. Um, again, just pointing out the zoning. This blue area is what's zone C2. The green wrapping around to the south,

west, and east is zone I2. This property to the west is vacant. This property to the east was escaping me for a moment. I believe these are single family dwellings. Um I think this one on the corner is vacant. It's been subject of a petition to reszone to commercial which was denied last year, but I believe the rest of these going south um are still used residentially at least up to this point. And the red ones are actually under county jurisdiction. Um, and then again to the south you have Kingston Street down here and some undeveloped space along with the retention pond for this property. So this is a look at the front of the site facing south from US Highway 36. This is the west end of the property where the automotive repair use currently operates. This is the empty tennis space to the east where they would like to expand. This is a view of that just looking southeast from kind of the corner of the property. And here are the overhead doors where cars are taken in to do repair work and service. This is facing north back towards 36 from just kind of the guess that would be the southwest corner of the building. You can see where cars are lined up here kind of double stacked. That's an issue that we're going to talk about a little bit more. These are presumably vehicles uh awaiting repair or awaiting pickup. And then finally, this is just looking at the back of the building where there's an overhead door that um the petitioner could clarify. I believe their plan shows that they already occupy this very back corner. Um but they would also take over this space, this back corner, and then the front part of the building up here as well. This is the site plan that was initially submitted with the application. Again, just to orient you, US 36 to the

north. Kingston would be down here off the screen to the south. This is the building on lot one. I've highlighted in blue the area generally of the existing auto repair use. And in red, the area that's proposed for expansion, save for this little corner here that they're apparently already occupying. And then this is a revised site plan that was submitted after we had some discussion with the petitioner. Um, it still has the the proposed and well, they've they've labeled the the existing and proposed tenant spaces here. Um, what they've also added is a note that they will plant landscape, excuse me, landscaping here along the west property line. This is the area where you saw in the photo, vehicles were double loaded along this west side of the property. So, they were kind of there's gravel there. those vehicles are encroaching into the the west perimeter yard that should be landscaped. Um, and they also kind of when they're double stacked there, they they somewhat impede the ability to have two-way traffic on this side of the building. So, since they're showing this landscaping here and and that there would only be one row of parking for cars here, they've also added this space down here on lot three, which they're showing as an additional area, an overflow area for vehicles awaiting repair. Now, um well, this this just shows you here the floor plan. Again, this would be to the north. Um this is the existing space. Apparently, they have this space as well. and then they'd be expanding into the rest of this tenant space to the east. So, some of the things that staff considered when evaluating this is that this request would not propose any changes such as the inclusion of overhead doors on the front facade of the building, which therefore would not significantly alter the visual impact of this use on the US 36 corridor. I

mentioned the double loading of parking along the west side of the building, which we think was an issue. Um, and also what I haven't noted yet is that when we when this was filed and we investigated the the previous approvals and what's currently there, we noted that there were site improvements proposed back in 0607 such as interior parking lot landscaping, which would be all of these little islands that are shown throughout the parking lot. Those were all proposed and required as part of the DPR approval. they would be required to meet the interior parking lot landscaping requirement which was in effect then as well as now. Those have not been done as well as a privacy fence along the east property line that was proposed in uh a condition of the DPR approval 18 19 years ago. Um that fence is not present. So, and then as well, um, I believe looking at old aerial aerial photography, there were ADA reserved parking spaces properly marked and signed, but perhaps with the resurfacing or restriping of the parking lot. Um, those are that's now out of compliance. So again, to address that, the petitioner did propose to install landscaping along the west property line to prevent the the double stacked parking there, which would interfere with two-way traffic flow around the west side of the building. Um they've created that overflow parking lot area to the south and they have indicated that they're agreeable to addressing these other site deficiencies whether it by complying strictly with the plan that was approved in 2007 which was the basis for this plan. So, the same things you're seeing on the plan that was submitted today um are consistent with what was was required back approved and

required back in 2007. Um they've indicated that they're willing to again address that. It could either be again be done through strict compliance with this plan or they could file an amended development plan review with the commission if they wanted to propose a different layout for the interior landscaping um or for any of the other site improvements. So the staff is agreeable to those non-compliant items being addressed in the near future and our proposal would be to withhold a permanent certificate of occupancy for the proposed expansion area until those items are all addressed. Um, so that would allow if we find that the that the petitioner is making progress either through indicating specifically that they're going to comply with this plan and and starting um or if they want to file an amended DPR if they actually do that, the town could issue a uh temporary certificate of occupancy which would allow them to uh occupy the area of expansion. And that's typically for a period of 6 months, but they would still need a permanent certificate of occupancy. Um, which we would require that they actually comply with all of those deficient items on the the site plan before they would get that permanent certificate of occupancy. So to address the findings of fact that are required for a use variance those being that essentially the first that it's not injurious to public health safety morals or general welfare of the community. Um we don't believe that the expansion of this use would have a negative impact on the public. The second required finding being that the use and value of adjacent areas not be affected in a substantially adverse

manner. again without uh changes to the exterior of the building with addressing the the double stacked parking and creating an overflow parking area in the back and complying with the things that were required on the previous development plan review. specifically the privacy fence required between this site and the dwellings to the east, the interior parking lot landscaping and the proper uh striping and marking and signage of ADA reserve parking spaces. Um staff doesn't think this would have a negative impact on surrounding uh properties. The third required finding being that the need for the variance arises from cons some condition peculiar to the property. We do believe that the property originally being built as an industrial building um it being renovated for commercial use before the US 36 overlay was adopted. Those are conditions peculiar to this property. The fourth finding being that the strict application of the ordinance would constitute an unnecessary hardship if applied to this property. Um, again tying back to the fact that this property was developed prior to the town incorporating and then being renovated prior to the adoption of the US 36 overlay. We think that strict application of the ordinance would constitute an unnecessary hardship if applied to the property. I would also point out that the US 36 overlay restricts certain uses that would otherwise be permitted by the underlying zoning. This site being C2 uh an auto services um business such as auto repair would be permitted by the underlying C2 zoning, but the the US 36 overlay uh prohibits that use in tier one. um

it's allowed by special exception in tier two and is permitted by right in tier three. So being in tier one, the overlay prohibits this use. But it is worth noting that for the the first I guess that would be 14 years of the US 36 overlay um auto services such as auto repair was actually permitted by special exception. Excuse me. I don't know the rationale as to why that changed when we went from the old zoning ordinance to the UDO a couple years ago. Um but if they had undertaken this request a couple years ago, they would have just needed to meet the special exception findings. Um now they need to get a variance of use. But um all of those factors tie into staff's interpretation that strict application of the ordinance would constitute an unnecessary hardship from allowing a successful business to do a reasonable expansion that we don't think is going to have a negative impact on the public or adjacent properties. So we think that's something that the town generally wants to be supportive of. And finally the the requirement that not interfere substantially with comprehensive plan. The current comprehensive plan recommends area retail which generally um which generally lines up with the C2 zoning which would allow this use if not for it being in tier one of the US 36 overlay. So for all those reasons, um staff does believe that the required findings have been met and we would recommend approval of VU25-05 subject to the two conditions listed in the staff report that I've discussed which um are that it would be substantially compliant at least in the interim with the the the site plan that's been proposed specifically to the area that they're expanding into. it wouldn't allow them

to expand into the entire building just to what they're um what they're showing on the site plan that they'd be required to do the the two items that they've already shown here that they would landscape this to make this clearly um only allowing single loaded parking and that they would create this overflow area back here for when they have additional vehicles awaiting repair that won't fit up here. And then the second condition being as I mentioned um that and I'll read it just to make that clear a certificate of occupancy shall be issued prior to occupancy of the proposed expansion area and that could be a temporary certificate as I mentioned but that a and a permanent certificate of occupancy shall be issued shall not be issued until the entire site is in compliance with the ordinance. I hope that made sense. I'm guessing there'll be a couple questions and I'm happy to answer those if to the best of my ability.

Questions for staff. So, Advanced Automotive owns the entire six acres. I do not I believe Advanced Automotive is just a tenant. They don't own any of the property. Okay. They have consent of the property owner. Okay. That was my question. So the the using that southmost area for overflow was an agreement with the with the property owner. Correct. That would be our understanding. But that would be a question best addressed to the petition.

So So to that point, if Advanced Auto is not the owner, then why would we attach these conditions to the tenant? Why wouldn't we just go forward with the use variance and enforce upon the owner? That's I was wondering that too. Why would Advanced Automotive be responsible for the landscaping that

they wouldn't be responsible? The the owner of the property would be responsible as the one who is being they're the one who will own the variance approval. Um it it relates to the land, right? So it doesn't relate to any particular occupant or petitioner. It's that the approval would be granted to this space to this property. So the the owner would be the one responsible to make sure that um that the operation of the the business if you grant the variance would occur in compliance with any conditions that you would that you would impose. And so the owner would be the one responsible uh for making those site improvements,

but the owner isn't a party to this petition. Well, the owner has granted consent to the petitioner. Um and in fact, again, I mean, the I think the petitioner's representative can speak to this. Um we've had plenty of discussion with the owner. Um in fact, maybe I can look at the petition. And don't get me wrong, I I love your idea of tying the CIO to it. That makes sure it's get it gets done, but these are two different parties. I That's my concern, too.

So, the the petitioner listed the applicant as Advance Automotive. The owner is Churchyard LLC. The petitioner's representative signed the application. Um, but the property owner, Chad Kirkoff, member of Churchyard LLC, signed the uh authority um to seek a variance of use to um David Gilman, who is a petitioner's representative. So, so Advanced Automotive is acting as the owner's agent in this.

Yes. I mean, Advanced Automotive or David Gilman who's here to speak to you who's um we haven't had really we've had very limited discussion with someone from Advanced Automotive um prior to this being filed. We've had more discussion with the property owner, Mr. Kirkoff. Well, Advance Automotive is listed as the applicant. It says by David Gilman. What is David Gilman's connection? Are they David Gilman as I understand was hired by either Advanced Automotive or the owner? Um, that would be a question to address to him, but the owner has signed authority to David Gilman to make this request. So, okay,

David Gilman has indicated Advanced Automotive as the applicant um because obviously they're the one that would is looking to expand their business. Um, but he's authorized to represent the owner. So, David Gilman represents the owner who is requesting this variance on behalf of his tenant. Correct. The owner could allow the tenant to make the request. They could come here themselves. Um, the owner could make the request themselves. They could allow David Gilman to do it as they've authorized. So, does the variance go with the tenant or with the land?

No, the variance would be granted to this property. So, much like I'm

very confused. Much like when you have a a use that's permitted and then that tenant goes away and someone else occupies the space doing the same thing or a business gets sold. The the the rights of what you can do on the property, stick with the property, not with the the particular operator that happens to be there at the time that an approval is granted. So, if you grant this variance, it's not it's not going to be exclusive to Advance Auto. If they sell the business or change the name or they close and a month later a different automotive business goes in, they would have they would have the same ability to operate because the variance is granted to the property, not not to the the the tenant.

So, I guess Mr. Taylor, are are we just overthinking this or is this what we would call a script a scrivener's error in terms of who the applicant is? Yeah. Well, we know the applicant is the petitioner, but I think I think we're just getting into issues that we're in the weeds. Yeah, you Yeah, you're you are allowed to impose reasonable conditions upon a grant uh like this. Whether those are necessary or not will be developed. I think when you had the petitioner speak, but remember use variance is exactly like Paul said, it is if you look at the use table, this use is not does not have a P there. It's not permitted.

We normally have that booklet with us.

And so, so when someone asks for a use for all they're doing is saying, could we just put a P in there for my one thing that I want to do here? So they could get a reszone and they could just reszone it to the appropriate designation, but in certain circumstances, this uh use variance is the other way. So all you're being asked to do is to put a little P on this property and say that that intended use is permitted. That's all you're being asked to do. So there so there's no so the applicant even though it says the applicant is Advanced Automotive by David Gilman which means David Gilman is acting as the agent on on this it says it sounds like he's the agent for Advanced Automotive but he's actually agent for the owner. Correct.

Okay. Don't I just wouldn't get hung up on that. The tenant is requesting the use variance. a tenant or a non-owner must obtain the authorization of the owner to file anything with us. That's all normal. Okay, that's all normal. But if you grant a use variance, it goes with that space. Okay, it goes with that space and that says that someone can do something there legally that prior to an approval they could not do. And we could not be here tonight if the owner had not signed off on Advanced Automotive coming here. Correct. Okay, that's all I needed. Correct.

Any other questions for staff? I think we're right here from petitioner. We were out of here by 7:30 last night. I've never heard of a PC meeting going on with a plane commission meeting.

I don't think it ever was. It's red. [Music] Y, can you hear me? I don't know what I did to my left to right, Paul. Right there.

Thank you. For the record, my name is David Gilman. My address is 211 South Ritter Avenue, Sweet H, Indianapolis 46219. I represent um Churchman LLC who owns the property and we are here um doing the business as Advanced Automotive and that's just for um clarity to let you know what business is in Avon that's asking for this expansion even though when I write the um petition when I write the commitments that are going to be binding for the property um we do that on behalf of the owner owner agrees to this, the owner agrees to that. Um, it is their tenant. So, it's in their best interest to obviously work with their tenants and their opportunity to allow them to expand. So, in the first tab of the handout I gave you, I call it a narrative. It's basically the letter that we submitted to our petition um to the board members. As mentioned um by Paul in his presentation, we're seeking a use variance to allow the continued operation and expansion of an automotive repair business for light vehicle repairs as defined by your ordinance. Advance Automotive has been at this location since 2007 and have developed a very credible business in the community. And in order to meet this demand for their services, they're requesting to occupy a recently vacated spot adjacent to their existing business. The ordinance does have a provision, and I only bring this up just for comparison purposes, but if you're a legally established non-conforming use, you are allowed to expand within that building as long as that building was for that use. And even though our

building has other tenants, it's zone C2. C2 permits automotive repair. So, I only want to bring that up because there are provisions in your ordinance that acknowledges businesses that want to expand and stay in the building, not do exterior changes that are allowed as a matter of right to do that as opposed to requesting a variance. In this case, the building has multiple tenants, and that's one of the reasons why we're here asking for your support to allow um a legally established non-conforming use to be able to expand. In the second tab, um this just says the the overall site plan um that shows you that we are um the the building closest to uh US 36. You see there are three or four buildings on the property. Um this building as as uh staff mentioned was a lumber company. The entire site, the six and a half acres. Over the years it's been remodeled, repurposed for commercial tenants, commercial businesses. Um, one of the things that I've discussed with the staff prior to the filing, um, is to, um, take that 2000 plan that was agreed to and approved, but some of the things were not, um, complied with. I want to assure that I have the cooperation of my client to immediately start working with the staff to bring this 2007 plan in compliance. I think I'll have my team rework some of that interior landscaping where it's more effective than just scattering it out all over the site. Um, but that's one thing that we'll probably bring back to the plan commission as the DPR. But the objective that I committed to the staff and my owners committed to me to u advance this is to make sure we meet the standards that were agreed to. But we may do it in a little bit different

manner that we think would be more effective and present itself better to the community than what was originally approved back in 07. So the next tab um is simply the floor plan. So we think uh that this slide um demonstrates that the existing advanced automotive space at the western end of the building and the proposed expansion space will address their immediate concerns and future needs to provide more service bays and more work space for their employees. The site plan shows uh the site plan that we presented here is the 2007 plan with some modifications to build what we would consider smart growth principles for the automotive use expansion. The western parking area will now be fully landscaped and screened from the view of the open bays and the vehicles awaiting repair. The need to double park in this area will be mitigated with the new additional service bays that the expansion area will provide as well as the owners have already provided a paved parking area at the rear of the center commercial center to allow additional parking or storage as needed. This is an agreement between the landlord and the tenant. This new storage lot will be completely screened with an opaque solid fence. [Music] And then the final tab in my handout, these are the commitments that are in the staff report. Um, we would agree to the following commitments to ensure Advanced Automotive Expansion is in compliance with the plan that you saw today dated September 12th, the landscaping, the overflow parking. And we will also commit to this board and to the staff that we will bring the

total site in compliance or seek a new development plan review before the plan commission again. Um and that is before final occupancy permit would be permitted. And I think that just helps the staff have some leverage to hold us accountable for things that we commit to that sort of fell through the cracks in 07. And we don't want that to happen again. my clients um would like to have their property uh be able to expand and have new users come and go um without having, you know, a lot of a lot of problems or issues. And it's uh again, they've they've authorized me to start working on that immediately with the staff and in the new plan. So, with that, I'm going to incorporate the findings that I submitted, which parallel the uh findings that the staff had presented, and I'm here to answer questions. We're go ahead and open up the public hearing. It's uh let's see, it's 7:48. Is anyone signed up to speak?

There is not. Would anyone like to speak? And with that, we'll close the public hearing at 7:48. Questions? I'm glad to hear that the owner is wanting to make sure that he or she or they are in compliance with the 2007 commitments that obviously got uh fell through the cracks. Um and I'm looking forward to seeing what a proposed landscaping plan might look for. I'm familiar with Advanced Automotive. But sorry to hear of Howard's passing and um I have wondered why the lobby was so small.

I didn't have any questions, but just couple quick comments. Uh first of all, this is kind of exciting because I think this is the first case I ever heard when I was when I came to the plan commission in 2007. So I guess everything went full circle here. Um, I'm I'm in agreement on the staff report. I I thought staff did a pretty good job on this with with criteria one, two, three, and five. Uh, I do not agree with their analysis of criteria four, however, which is the strict application of the terms of the ordinance will constitute an unnecessary hardship of the property for which the variance is sought. and the staff says that the building predates adoption of 36 overlay. I reject this notion that there's a um that there's an unnecessarily hardship simply because we have an ordinance, be it a new one or an old one or revision or whatever. However, I thought the petitioner's explanation that hey, we've invested in this property, we just need to grow. I think it's a reasonable explanation. So, with that, I'm happy to support this.

I would agree. I move that we approve VRU2505 advanced automotive expansion a variance of use of UDO2.10E to provide for the expansion expansion of an existing auto repair business in the tier 1 of the US highway 36 overlay because it will meet all the requirements for a variance of use under state law and subject to the adopted findings of fact. M. Ransburg, I would just ask if you could add to your motion that it would be subject to conditions indicated in the staff report

and subject to the conditions indicated in the staff report. Thank you. A motion by Mrs. Ransburg. Is there a second? I'll second a motion. Second by Mrs. Enman. Any discussion? Roll call vote, please. Enman Ransburg for Turner. Four. Thank you very much.

Thank you. Next item on the agenda is V25-06 Harlem Bakeries expansion. [Applause] Thank you again, Chairperson Turner and members of the board. The last but certainly not least, we have V2506, a variance of development standards for Harland Bakery's expansion, including loading do loading docks that would be oriented towards US 36, specifically requesting approval of a variance of development standards of UDO2. 2.10 J7 to allow for a building addition with loading docks facing US Highway 36. This property is located at 7597 East US Highway 36. That is the address of the existing Harland Bakeries facility. Also included with this request is 132 through 210 Production Drive. The addresses are a little odd on Production Drive. believe there's a fourdigit address in between there in our GIS system which it appears to be an air but um I'll show you on the map where this is but the Harland Bakery's existing property was platted as Harland Bakery's lot one and then we have six unplatted parcels

along the west side of production drive all total the property is about 14 and a half acres so this is the existing facility for Harland Bakeries which is addressed off of US 36, although it does not actually have frontage on US 36. It probably did at one point before these retail properties were developed between the bakery and US 36. This is the area of the six unplatted parcels along uh the west side of production drive that is a major portion of the expansion area. The expansion would be in this area here. Just to take a look at the site. This is facing north from production drive or across production drive. This is the existing industrial bakery facility here. The expansion would happen in this area here. US 36 is well back in the distance behind some other buildings that intervene. This is facing west across production drive, which may be confusing if you haven't gone down production drive and realized that it travels north south and then makes a 90° turn to travel west around the perimeter of the site or at least partially around the perimeter of the site. So this is facing west across the north south part of production drive. The industrial bakery is back here. These miscellaneous buildings will be demolished. These parcels again have been already acquired by Harland Bakeries to um provide for the expansion they're proposing. This is a similar view facing west towards the the existing bakery area from the west side of production drive. This is facing south from the basically you're in the area where the uh expansion would take place facing south across the east west ex uh portion of

production drive. Oops. And then finally, just wanted to show you, sorry, facing uh east back across the north south portion of production drive, you may recall this building, which was the subject of a variance application last month. And then finally, just looking north along production drive. So the area of expansion would be off to the left here. US 36 is in the background. Um, important to note that this is a commercial retail multi-tenant building which is between the bakery site and US 36. So, this building is going to screen the proposed building addition and the loading docks from US 36. The site is zoned I2 which allows the industrial bakery that is there and it's located within tier three of the US Highway 36 overlay zoning district. Obviously, tier one being the area closest to 36, as we were discussing in the last case, tier three being the farthest away, which is property that is more than 660 ft or an eighth of a mile from the US 36 right away. Tier 2 being the the areas that lie in between. Um, the existing industrial bakery was constructed prior to incorporation of the town. After incorporation of the town, several development plan reviews and variances have been granted by the town allowing for incremental expansion of the industrial bakery facility. This is the conceptual site plan that was submitted. Again, US 36 up here to the north. You've got outlot retail. You've got this multi-tenant retail building here. Then you finally got the industrial bakery in tier three of the overlay. And here is the expansion area with loading docks here on the north side of the expansion area which

technically face US 36. So they're not required by the standard or they're not permitted by the US 36 overlay even though they would be blocked from m view by this building. Not to mention the fact that they're um 800 feet or so from US 36. This is just a closer look so you can kind of see more closely. Here's where the loading docks would be. And again, if you're on Udus 36, you might not see through the covers, but you might see around it, but you're not going to see through this building to see the loading docks. So, um, in addition, it's important to note that in addition to the loading docks not being allowed to face US 36, the overlay district also prohibits them from facing any other public street. So even though the site doesn't front on US 36, the loading docks can't face north towards US 36. They can't face east towards production drive because this is a public street. They can't face south because this is also public uh a public street, an extension of production drive. So, the only place that they could really um put loading docks on this building expansion would have to be on the west side or they'd have to wrap an L-shape around and have um have the loading docks somehow screened by an L or U-shaped building, which would be very impractical. So, we do find that there's a practical difficulty in designing a building addition with loading docks that don't face north, east, or south. Um again they would be screened by essentially two layers of commercial development intervening between this site and US 36. So again looking at findings back to the same findings we had in the first case that it not be detrimental to the public health safety

and morals of general welfare of the community that it not be injurious to the use or value of adjacent properties. um that the strict application of the ordinance result in a practical difficulty which I've touched on that the variance relief requested is the minimum necessary. We do agree that that's the case and that the necessity of the variance is not created by the owner previous or present. Um and we find that all of these findings are met for the reasons that we've discussed. And so having found that, if you agree, which we hope you will so that this business can expand um and continue to be an employer in the town of Avon, we uh we recommend that you approve this variance subject to substantial compliance with the conceptual site plan filed dated 18th of September of this year. And with that, I'd be happy to answer any questions the board members may have. questions for staff.

So the ordinance simply says not that it can't be seen in 36 but it can't even face 36. Correct. That is correct. There is no exception unfortunately um for when when it wouldn't be visible from 36. Okay. Anything else for staff? We're here from petitioner.

Hello. Good evening. Ben Culmer, 71 West Marian Street, Indiana 46122. Here on behalf of Harland Bakeries LLC with me here tonight to help answer any questions you may have. Um, so the It's a freezer warehouse building that they want to add that they don't have that now at this site. And um it's going to be a um huge investment in the town. 30 to 35 million employ 15 to 18 addition people uh at this site. Um I really don't have anything else to add as far as the criteria criteria go. Paul's done a nice job. It's not viewable from 36 technicality on having to to face the docks north and get this. So hope you understand happy to answer any questions.

Very good. We're going to go ahead and open up with public hearing. It's uh what 8:01. Is anyone signed up to speak? No one has signed up. Would anyone like to speak? And with no one coming forward, we'll close the public hearing at 801. questions, discussion.

I think this is a a perfect example of why the waiver process or variance process is Thank you. Wrong night is so important because we're not dealing we're not talking about creating or doing an expansion on a property that's sitting out in a 100 acres and and where you have lots of options. I I we h we are going to continue as we grow to find ourselves facing situations where the ordinance cannot be practically applied because of so many pre-existing conditions and um I don't want Harling going anywhere. So, um I think that maybe the ordinance needs to be revisited in terms of what facing north means or facing 36 means if you've got two buildings that are blocking it. So, um I I think this is a perfect example of why our our waiver or variance process is so important and this is a perfect example of when it should be applied. I'm in agreement with the staff report and I thought you guys did a great job on practical difficulty on this

as always noted on the change noted that we we will look into that. Yes.

Any other discussion? We'll entertain a motion. I move that we approve variance 25-06 Harland Bakery's expansion a variance of development standards of 2.10 J7 to allow for loading docks oriented to face US highway 36 because it will meet all the requirements for variance of development standards under state law and subject to the approved findings of fact. Motion by Mrs. Inman, is there a second? A second. Second by Mrs. Ransburg. Any discussion? Roll call, please. Inman or Ransburg or Turner. Four.

Thank you all very much. Thank you. Do we have any other business? We do not. Then we are journed. Thank you. Just in time to watch America's Got Talent.