Board of Zoning Appeals (bza) - Regular Meeting

Yeah, but remember her. Yeah.

I'd like to call tonight's meeting of the board of zoning appeals to order. and uh ask Danielle for a roll call when she's ready. Randy Jones present. Dilberger here. Darla Brown present. Jang Gore here. Andy Boils present. You all received copies of last month's meeting minutes. Uh have a chance to review there any changes to suggest to those amendments? I entertain a motion to approve them as written. So moved. Second. Danielle, a roll call vote on approving last month's minutes when you're ready. Jane Gore, yes. John Dilberger, yes. Andy Boils, yes. Brown,

yes. Randy Jones, yes. Okay. Minutes are approved. Uh the we have an item of old business which is docket number 25-sec. This was a something the petitioners requested that we table until December 18th meeting. I don't have a problem with that. So moved. I'll second the motion. Okay. Um we have a motion to uh table the doc number 25-sec till the December 18th meeting. It's been seconded. Roll call vote when you're ready. Danielle John Delver. Yes. Andy Boils. Yes. Charlie Brown. Yes. Randy Jones. Yes.

Jane White. Yes. All right. Next item on the agenda tonight is document number 25-8-02. This is a request for uh to appeal a decision made by the Brown County Area Planning Commission director for regarding issuance of a sign permit. Kayla staff report whenever you're ready.

All right. Staff report for appeal of director's decision docket number 25- A-02. Hearing date, November 25th, 2025. Commissioner Penny Scrogggins request appeal the decision of the planning coordinator, director of the area plan commission regarding issuance of a sign permit. Ordinance provisions. Chapter 7, administration, enforcement, and appeals and the board of zoning appeals rules of procedure. Article 5, powers and duties 1A. General history. One, the petitioner is requesting an appeal of the director's decision to issue a signed permit for KOA on May 28th, 2025. Two, at the time the ter the termination was made, the appeals process was explained to the petitioner under the board of zoning appeals rules of procedure and appeal must be filed within 45 days of a decision. And this timeline was met as the petitioners produced an application for an appeal of the decision on July 8th, 2025. Three, the appeal was docketed on August 4th, 2025. The legal notice was published in a timely manner and the petition was slated for the August 27th, 2025 BCA meeting. Four, the Board of Zoning Appeals heard the petition on August 27th, 2025 and decided in favor of the petitioners. Five, after after the decision was made, it was realized that an error had been made during the docketing process and notification was not sent to all interested parties as required by the board of zoning appeals rules of procedure. Six, once the notification error was realized, the board agreed to rehear the petition. The reharing was scheduled for November 25th, 2025, and the decision of the board will be based on this reharing. The docketing procedures were completed by staff.

General findings. One, in the zoning ordinance 7.5, appeals provides a decision of the planning coordinator enforcing this ordinance may be appealed to the board by any person who is adversely affected by the decision. For filing fees, C chapter 8, section 8.2 to and on an appeal under under subsection A the board may make any decision that the planning coordinator might have made. Two, the board of zoning appeals rules of procedure. Article 5 powers and duties 1A states the board shall have the following powers and it shall be its duty to hear and determine appeals from sorry there's something in my way here. hear and determine appeals from and review any order, requirements, decision, or determination made by the director in the enforcement of the ground county zoning ordinance or the Nashville zoning ordinance. All appeals must be filed with the commission within 45 days of the order, requirement, decision, or determination made by the director. Three, according to the petitioner, there was a sign in the same location many years before the petitioner purchased the property. This sign was blown down during April of this year. It is unclear when the original KOA sign was placed on the parcel as a sign permit was not found. Four, the sign says it's on property owned by the petitioner, but which has an easement named KOA Drive for the KOA campground. The [clears throat] easement reads, "A perpetual non-exclusive easement for ingress and egress over and along a 50- foot wide established roadway leading from State Road number 46 to the above described real estate. Five, the petitioner is the owner of a tourist property located at 2298 State Road 46 East as well as five additional adjacent tourist properties.

The home most affected by this sign is under construction currently. The petitioner has provided a petition with 118 signatures asking for the sign to be taken down. And I'm trying to go forward on my slides. There we go. Six. Carpenter Legacy Management is the current owner of the KOA campground. A special exception was approved on January 29th, 2014 under docket number 14-se to operate a travel trailer park and campground. Historical reports from staff state that the property was used as a campground for approximately 40 years prior to the necessity of a special exception. Seven. According to the zoning maps, the Scragggins properties are zoned GB, general own business, while the KOA campground is zoned FR, Forest Reserve. The KOA's newly installed sign is located on the GB property and is 80 square ft. There are vastly different maximum sign area allowances depending on where the sign is located. Eight. On the sign permit application form, it is stated that written proof must be attached to this application of owner permission if application is made to allow a sign on property that is not owned by the applicant. Nine, during the application process for this sign, staff made Kway representative aware of this requirement. 10 in a letter from Clintoning Johnson and Borer PC attorney representing the KOA staff was made aware of a court of appeals court of appeals of Indiana first district decision Wendy's of Fort Wayne Inc. versus Fagan. The judgment in this case was the trial court's finding

that the grantee of the easement has quote the right to erect the directional sign in the easement because that use is incidental to to making the grant of ingress and egress effectual. Indiana cases clearly have held that the owner of an easement possesses all rights necessarily incident to the enjoyment of the easement and that he may make such repairs, improvements or alterations as are reasonably necessary to make the grant of easement effectual. Summary. After reviewing the case law, staff granted approval of the application for a signed permit in the easement as staff interpreted that this the trial court found that a grantee has the right to erect a sign to make the easement effectual. All right, that's the end of the SA report.

Thank you, Kayla. Any questions from the board for Kayla? So, if I understand right, we are rehearing the case. Correct. As if we haven't before. Correct. The decision should be made off of what's in this board packet and what happens at this hearing is there questions. Um I see the petitioners here tonight. U did you want to add anything to Kayla's staff report? Anything to share with us? Yeah, if you come up to the microphone and identify yourself for the record, I'd appreciate.

Hi, I'm Kurt Scrogggins. And as far as any new um nothing has changed since the last meeting, so I didn't think I had to go over everything that I'd said last time, but when after I reviewed the sign ordinance permit process, I did notice one spot in there that said that the signs must have a setback from the state highway 46 rideway. And just wanted to note that the signs are on the rightway line or in the rightway. I'm not sure which. But if you did ground the permit to put the sign up, they do need to be set back from the rightway line. That's the only thing new that I've got.

All right. Um before you leave, um Dave, um Mr. Scrogggins of course gave testimony at the first public hearing. Um, are we allowed to consider that testimony in the exhibits he presented or does he need to retestify and represent? Well, this is a new hearing. Yeah. Um, so I I would say that would be the safest practice. Okay. All right. Um, then does anybody have any questions for Mr. Scrogggins? Anybody from the board? I had I'm sorry. With

respect to the measurement that you were referencing, did you did you take the measurements? Which measurement are? Well, you talking about the offset from the Sid 46 back. I'm sorry. Did you have you taken those measurements?

I I measured the sign height and it's approximately 16 ft high. So, I'm assuming that means it's supposed to be 16 ft back from the rightway line. And the sign is on the rightway line right now. So, I'm hoping to take the sign down completely, but if it does end up being put up, it does need to meet meet the setbacks. I feel like put some pictures of the sign in question and then another sign. Uh, but she didn't give any information about those. Um, it looks like the sign in question is in front of this tourist home that's under construction. Is that right?

Yes, they do have other signs there that I feel like constitutes the ingress egress thing that the state showed in the Wendy's versus Fagan. You know, they have a sign there showing where the road is and where their campground is. I just don't want that big huge sign that's right in my front yard blocking my view of, you know, the golf course and the pretty aesthetic Brown County landscape. Okay. So, this sign sits in your view that otherwise looks at the golf course across the road. Yes.

And then a lot of the ordinances, you know, I just keep reading over and over in the purpose and intent section that, you know, signs are supposed to be aesthetic looking. They're supposed to blend in with the landscape. They're not supposed to cause any hardship on any property owners or anybody adjacent to the sign, which this sign does all that. You said there's another sign. Is that the smaller one that Kayla showed a picture of?

Yes, there's another sign across the road. They have a propane filling sign there. They have a KOA drive sign. They have a KOA sign on the KOA drive sign. So, they've got like four signs on the opposite side of the drive. We're just we're just arguing this one sign. Okay. So, Mr. Scrogggins, if I'm understanding you correctly, your your primary objection to this is basically line of sight of sex. Yes. That's the biggest biggest thing.

Okay. And Mr. Initially when you had reported uh to this board, you had talked about what happened, the events after the sign blew down that you had made contact or that they had made contact with you uh and it was made known then that you didn't want it and can you walk us back through that cuz I don't remember the details. Yeah, in the very beginning when we first bought the property, we were opposed to the sign then and the previous owner was also and he had went to the county planning commission and they told him it had been there long enough that they weren't going to make him take it down. But they said if anything ever happened to it then it would have to be, you know, back to a legal sign and it would have to be permitted and they'd have to approve it. You know, I'd have to approve it since I'm the land owner. I told him then that, you know, we we'll wait and see. You know, someday it'll come down. I wasn't in any big hurry, but when the winds blew it down in the spring, we all thought, okay, if it's down, you know, it'll be done. We don't have to look at it anymore. Well, he not too long after that, maybe a couple of months after it blew down, you know, he was erecting it back up, put a new sign up a little bit bigger than what was there. and I confronted him and told him, you know, you need to have a permit to put that sign up. And he told me that he did not need a permit. He was a an American. He paid his taxes. He could do whatever he wanted. So I said, "Okay." And we even called the sheriff and they sent a couple deputies out. They talked to him and they said that they didn't know enough to really do anything. So then I went back to the planning commission and told them what happened and told them again that you know I didn't give him permission to put that up. So they said okay we'll not issue

the permit will tell him he needs to take it down. Well, in that at that point then he got a lawyer come up with this Wendy's versus up in Fort Wayne had a some type of whatever that case was that said that they could put a sign up. But in that decision that said, you know, a mere 52 in sign could be put up because it was a hardship case. There's no way anybody could find it. So I'm looking at, you know, the smaller signs on the other side of the road. takes care of that point. So now I'm back to the big sign that's just in our view.

So you're not opposed to the other three signs. How many other signs are there?

No. No. The signs on the other side of the dry is fine. We don't care. That's, you know, we're business people, too. We would want a sign showing where our business is. And we've got a sign there that says Bears's Den for our vacation cabinets. You know, I'm not against signs. It's just this one huge sign that's in my yard that he's got lights shining up. You know, it reflects. It's kind of a reflective yellow sign. You know, if you're sitting on my back porch looking out at night, you know, it kind of blinds you. Light shines back at the house. You know, I just feel like it's not a necessary sign.

So, you said, Mr. Scrogggins, that your objection to the sign was it blocks your line of sight from your house. Would it be possible or would you be willing to, assuming that KOA has a right to put a sign in the easement, would you be willing to enter some sort of encroachment agreement with them to have them put the sign somewhere else on your property, just not there? And would that even be practical? Cuz I know on the east side of your property, you've [clears throat] got a bunch of trees and it looks like it's hilly, so I don't even know if that would work. But

yeah, I don't feel like it would. You know, any of the signage that's on the west side of KOA Drive is fine. You know, I'm okay with anything up and down through there, but anything on my side where the cabin is. It's just it's just not easy. I don't feel like. All right. I understand. Any other questions for Mr. Scrogggins? No. Okay. Thank you. Thank you. Uh, is there anybody else here tonight that wants to speak in favor of this petition? Oh, yes, the co-etitioner, of course.

I'm assuming Penny Scrogggins. I'm assuming I need to be up here again since I was already here a few months ago. Well, this is a new hearing, so if there's anything you'd like us to to know, there's nothing new. Everything is the same as when I was here before, but do you need to hear it all again or It would be helpful for us to hear it again. As Randy said, or Andy said, our memories aren't always 100%.

Okay. Well, the sign obstructs the view from our cabin and the view is of the Salt Creek Golf Course, which is beautiful. Um, as outlined in the county zoning ordinance, the goal is to man maintain and enhance the aesthetic environment of Brown County, which I think is important, and we all think that's important. Um, the sign is 8 foot wide by 12t tall, which is more of a billboard than a sign. And they already have three other signs. [snorts]

You know, the Wendy's case allowed one sign in an easement, not three. So, you know, and we're not arguing about the other signs across the easement. It's just this one that is in the view of our cabin or the view from our cabin overlooking the golf course. And I think that's all I have. Okay. Any questions for Miss Grogggins?

I mean, you know, you know, Kurt pretty much said it all. I don't want them to not have a sign. I just don't want this sign in this location. Across the drive is fine. Sure, they need a sign. People need need to be able to find KOA. Although, I happen to think that you don't jump in an RV and then try to find a place to go camp. You usually have a destination in mind, but that's neither here nor there. They have a right to have a sign. They're a business. Okay. All right. Thank you for that. [clears throat]

Good evening. Yes, sir. My name is Tom Densker. I'm a lawyer in Bloomington with Barbara Dford. I was asked by Mr. Mrs. prog to come down and address any legal issue. Sir, could you get a little mess up my microphone just so that we can record it? Is that better?

Yeah. Um anyway, I was asked to come down and address a legal issue that's been raised has to do with this case of Fort Wendy's uh Fort Wayne that's been cited in the staff [snorts] uh directory and the or the staff report and and there are there are parts of that case that are clearly not in dispute in terms of um an easement and possessing certain rights. This easement happens to be ingress and egress which means they can come and go. Um, but they don't have the right necessarily to unilaterally expand the use of that easement, for example. They they they probably couldn't use it for large commercial vehicles or or uh expand it uh the use to, you know, uh include, you know, residential developments back in that road. So, when you acquire an easement, you're stuck with what it is you acquire acquired. And in this case, they acquired a right to have vehicles come and go across uh the property. They want to expand that use to include the sign. Um so the burden is on them to demonstrate that that u that expanded use was permitted or was contemplated under uh under this easement. And it it simply was not. It referenced simply ingress and egress, not signs, not utilities, not any other uh expanded use. This the the case that is cited is is rather unique to that particular situation. In that situation, there was no um obvious uh point of ingress and egress. It's how do you find this business? It was 261 ft off the main road. So in that case, the court found that the purpose of the

easement included the the right to put up a very small sign at the entrance to allow employees, customers, suppliers, and other and others access to the property that would be rendered virtually meaningless without the installation of a directional sign. Well, that's clearly not the case here. There's three other signs that that are available. uh to locate this property and it's called KOA Drive. It's not a mystery to someone traveling down the state highway where you turn off to get to this place. So the the the the the finding there or or any reliance on this case is um somewhat um expansive of what the actual holding is and also expansive of what easement rights were acquired uh by the KOA camp when [music] they when they purchased this property and began using that road some some decades ago. So that's really all I have. I brought a copy of this case that I'd like to provide to Mr. Chilling in case there is uh some question about the legal authority and the citation to this uh case as Christ.

Thank you. Thank you. You're welcome. Um before you go sir if I could just ask you a couple of questions. So you mentioned the fact that in the case that you are talking about the business wasn't visible from the road. Um, I believe this business isn't visible from the highway either. Um, no, but the point that it wasn't visible made the sign that much more important. Yes.

In this case, this large sign is is less important because there's three other signs that people can can use to to find the business. It's not essential to to people locating uh the business. And that's kind of what distinguishes this situation from that particular legal practice. Okay. Thanks for that. Any other questions? Uh yes. Um were you reading directly from the findings of the court then? You quoting that particular about the sign section there as far as

Okay. the I was reading about the the the court's finding that this particular sign in Fort Wayne was incidental to the ingress and egress because it was necessary for customers, vendors, suppliers and guests to find the business. So that part of what I was that part of my presentation was directly from the case. Okay. All right. Thank you. Thanks for that.

Thank you. Uh, is there anybody else here tonight that wants to speak in favor of this petition? Okay. I'm assuming some of you folks want to speak against this petition. Then, um, I am going to let you decide what order to take it in. Let's [clears throat] see. Apologize. I got to get my ducks in a row here. Oh, that's fine.

I noticed you picked a yellow animal. Sorry. You'll get it. I'm a little disappointed. I think I want to see that work.

Okay. Um [clears throat] I don't need pens. I just like throw them on the ground actually. Okay. I really don't like them. I'll probably throw more. Uh my name is Alex Martin. I represent um KLA Campground Carpentry Legacy Management. Um and I would just obviously like to thank the board for being here for that reconsidering this matter. Um, this matter though, this sign is a dispute about KOA sign that sits along a driveway that leads to the KOA campground. KOA campground, that's not it. It's in the back. You can't see it from the road. Um, and this sign has been here for some odd 40some years with no issues pertaining to this sign. Um, and then of course Scrogggins move in, a storm blows this sign down, and that's kind of where this whole thing started. And that's no surprise. Um, the Scrogggins own their own business. Um, Bears didn't vacation cabins, which is very akin to the recreational camping cabins uh the KOA campground runs. So, it is no uh it's no surprise that they have a little competition here and there. And that's fine. And that's, you know, as they said, that's fine competition happens. But what this really is about isn't about the sign placement. It is not about whether or not the sign is ugly or not. This is about stifling competition unfairly through the means of this procedure. But aside from that, um you know, I would just respectfully request this board to hear um what has to be said and respectfully allow the sign to stay. um a few points of contention first that I will address for the legal matters. First of all, um the case that is being relied upon. Uh uh council Tom Densford stated it's kind of uh incidental to that matter that they couldn't find it that they couldn't find the uh they

couldn't find the business. Can't find KOA either from the road either. If you come from if you're coming and heading east, you can't see the sign that they actually are talking about. That's okay. That is okay. There's foliage there and it's only a one-way sign. You can't see but you can't see the campground either. You can see that cabin, which you might believe is GOA, but it's not. It's actually in the back. Second, the egress or the uh the easement that was given in Fort Wayne does not mention using it for signs either. In fact, it says this and I will quote the case. The executive and easement which provides impertinent part Wendy's does grant to William Pay a permanent easement and right away for the purpose of egress and ingress from the real estate. The easement shall be for the non-exclusive use and benefit of Fagan and Wendy's reserves the right of use of real estate contained within the easement not inconsistent with the grant for purposes of ingress and egress from any part of or all of the land owned by Wendy's abuing or adjoining the easement. The easement shall include the right infeors of signs forever to enter upon and within the easement to maintain, repair any roadway, street, drive constructed over the easement and to do all things necessary in regards there too. Nothing says that they nothing says that a grants that they can place a sign just like the easement in this. It's a grant for an easement for ingress and egress just like this one in Fort Wayne. And once again, if we're going off of the fact that you use the e the the easement, placing a sign in there to effectuate the purpose of the easement, this satisfies that. However, I want to reiterate that this is not an argument about the constructional or contractual interpretation of an easement. This is

rebutting or refuting a valid sign permit. This isn't about arguing about whether it's valid through the egress or ingress of an easement. This isn't anything to do necessarily about law. This is about how they have to show that this sign is invalid after obtaining a valid permit from the planning commission. The primary uh the primary argument first of all is that they say it's ugly. And you know, beauty is in the eyes of the beholder as we all know. But the problem is is that just because it's ugly doesn't mean it's not valid or even if it isn't, it's not ugly to begin with. But what I'm saying is the subjective determination of whether it's ugly or ugly for this board should be put aside. It's whether or not this sign is invalid up against a valid sign permit. And looking at the requirements from the ordinances, this is a valid sign. Um, this meets the requirements. It's 8 by 12. That's still less. It's 96 square feet. That is less than um the sign requirement of either one single sign being 100 square ft or total area signage being 144 square ft. The signs that they're um talking about on the other side though don't effectuate that purpose of this easement. One sign is covered by foliage when you head the opposite direction. It's only 4x4. Can't be seen from the road when you're driving. eastbound could be possibly seen from the road when you're driving westbound. The little tiny sign is a 1x4 sign, which is four square feet, which is not regulated by the guidelines of the ordinance. Um, and so even if you did take all of the square footage signage, it still is less than 144 square ft in any particular area. Um,

but so there is there's that that part about the square footage of a sign is being too big or anything like that. It meets the requirements of the ordinance. It's a valid sign. The second thing I want to point out is if you look at the picture here, what is being built and what is already constructed. I mean, when they built this cabin, they knew that the sign was there. It's not like they didn't see it. It's not like when they didn't know when they were planning out when to build the cabin that this sign was going to not be there or be there at all. I mean, their whole hopes was we don't like the sign. We're going to hope for something bad to happen to this sign. Unfortunately, something did happen to this sign and now they're mad because the sign is back up there and it's legally backed up there. Um, but the whole point of their argument is that, well, that sign's ugly and we want to move. Move your cabin. Don't put the cabin right behind the sign. You see the sign, you see where it's going to be at. Why would you put your cabin right behind the sign? You can move the cabin over. You can move the cabin back. You could do anything other than put your cabin right there when you know the signs there. I mean, they're complaining about the sign being here and then they built the cabin right there. So, just take that in consideration when you're making your decision, please. Is that the sign was there first, the cabin was there second. So I I implore you to uh to at least consider that. Um in regards uh to the multiple other signs, I've already talked on this. Um and there might be an issue with the three signs. There is no requirement [clears throat] under the ordinance that limits the number of signs. Now, we understand that this could possibly be read as you could put a 100 signs up there, which I understand that, but that's why we have the total square footage area under the sign under the signed regulations under the guidelines. And the ordinance does prescribe

numerical limitations in other areas. So, the drafters of the ordinance understood that it could have put a sign limitation in a certain specific area and it didn't. Just because there are there's one ugly sign, two ugly signs. As the shrugs say, there could be 20 ugly signs. So long as they meet the square footage requirement, which the this one in particular does and it's a valid sign permit, they have to show something more than it's has to show something other than that. Um, and that is where the reliance on the Fort Wayne case is misconstrued. That is not a case invalidating a a board zoning of appeals decision. That is a case in which the property owners have actually filed a lawsuit to enjoin and it's a deck action. They're asking the court to interpret an easement as to whether a sign can be there and the court said the sign can be there. I understand that that was a mere 52 in. But that is something that's a moot point because it's not invalidating the sign based off of the size of the sign. It's validating the sign because of the fact of interpretation of easement. So I don't want this board to get twisted. This is about a valid sign permit, not about a valid easement. The easement is valid and the sign's valid, but I don't want the board to get um confused on that matter or maybe twisted around for that for that. And I just want to clarify um that issue.

Just a point of clarification real quick. Your office presented us with the Fort Wayne Wendy's versus Fagan lawsuit, right? Uh correct.

Okay. And that is the reason the reason why we used that case was because when you apply for a sign permit you have to have permission from the owner of the land the land owner should it be on someone else's land. The use of that case was to demonstrate that an easement that we have obtained from the prior owner is an implicit. We don't need explicit um we don't need explicit permission from the landowner. By a matter of law, we have the permission we need already. That is what the easement satisfies. And that was the purpose of that whole tire. Throwing that case in there was to show and and sub um subsequent cases in there was to show to satisfy the requirement under the permit application that we didn't need the SCRA's written permission because we had that easement and that's the reason for throwing that case in there and for citing that. It wasn't to argue that the easement was valid or that the you know any placement along any um right away or anything like that was invalid or valid. was just to effectuate that purpose that we do not need express written permission from the Stravins as a matter of law that easement satisfies that. But now I just want to kind of take a few closing remarks um in terms of KOA. First of all, there's 118 signatures supposedly from the SCRA to take the sign down. That's fine, but it's a valid sign. It's legally entitled to be there. 118 signatures is moved. But KOA is a trusted national brand. It's got a huge it's huge economic impact on any community it goes into. This KOA specifically brings in approximately 18,000 guests per year. So those visitors, they come into Nashville, they support your local businesses. You guys have lovely arts and crafts shops here. You guys got some great restaurants that come down here very frequently. And those 18,000 people that are drawn in, they benefit not just Nashville, but the community at large in

Brown County. And this sign, it's large enough to be seen in inland weather. When you're driving, much as like today, it's foggy, rainy. When I was coming in, you can see that sign coming in from Bloomington. You can see it. It helps the travelers find where they need to go. As we all know, we kind of live out here in Brown County. GPS isn't necessarily the greatest thing to be using, but that sign helps travelers when they're coming to Brown County to stay at KOA. So, yes, they do have a second sign, but they're not really looking for that. When I was coming here today, I wasn't looking for these smaller signs. I'm looking for the giant big KOA sign, the national brand sign that recognizes that I am there to stay at their campa. And this sign, it's large enough so that people driving caravans, trailers, hauling camping gear can see in time to slow down, make a stop, and turn safely. It's not just because it's there just because they want everyone to say, "Hey, look at me. Here's our campground." It's big enough so that everyone traveling can see where it's at. People hauling large loads and heavy um trucks can stop on time RVs and make a safe turn. travelers, they don't just look for the sign to see where KOA campground is. They rely on the sign to get there safely. And so I just respectfully ask that this board allow the sign to stay, hold that the permit is valid. Um, and I thank you all for your time.

All right. Any questions from the board? I had a couple questions. Yeah, of course. You you referred several times to this sign, but it seems like you were referring sometimes to the old sign that blew down and sometimes to the new sign. We're actually talking about two signs, right? No, this is the same. This sign got blown down and then if it's my understanding they got put back up and then it got taken down. That's not my understanding. So, I'll ask for clarification. Maybe maybe you'd want to clarify that. I think that this is not the sign that blew down. This is a new sign. This is the same sign that same sign. This is the same sign. Same sign. Exact same sign. New post. Same sign.

Okay. So, it's the post that that fell and it fell off the post and you put it back up with a new post. Got it. Okay. Um, and you spoke about a valid sign permit. What What is it that makes a signed permit valid? That it meets the requirements that are required by the planning commission under the ordinance. Well, it doesn't meet the requirements, I guess, because it doesn't have the landowner's permission,

but the e the easement already by law allows for us to put a sign there regardless of the scrotgin's permission. That's what the easement is for. The easement is to effectuate that sign being there effectuates the purpose of the easement pursuant to the case law, you know, Fort Wayne and the subsequent cases.

Well, actually, Wendy v. Fagen sets up two tests to decide if the sign actually is uh is permitted. Um and one of them is is it necessary to effectuate the purpose of the easement for ingress and egress. And what I'm hearing is that there are multiple signs there. Why is this sign necessary when the others are not? Yeah. So, first of all, um the first sign, the small sign is 4 square ft. You'd miss it if you weren't looking at it. Doesn't effectuate the purpose of the easement because you can't see it from any great distance, unless of course you're standing right there on top of it. Okay.

The second sign only faces in one direction. I think we're seeing a picture of that second side. You're talking about the small one. Correct. So, the the small one is over here off screen. There might be another one. This one. There it is. Thank you. It's fairly small. It's four square feet. You'll probably miss it if you're not looking for it, especially in inclement weather. You will you will you will miss this sign. Okay.

And then if you want to go to the second sign, this sign only faces one direction. So, it faces east. So, only traffic from a westward direction can see it. This road bends back here and there's foliage behind it. You cannot see this sign until you are clear of the foliage which not would not affectuate the purpose of the easement because the distance between there and there is not so far away. It doesn't affectuate the purpose of the easement if you're heading east because you would never see the you would never know where KOA is at. You would drive right past it until you saw in your rear view the giant yellow KLA sign sitting in the back there and then you'd say, "I gotta turn around on a hilly road." So

So imagine if I'm driving east on Highway 46 here that I won't see this sign until I've passed the driveway.

You will not see the sign until it is almost too late to pass the driveway. You would see it probably right in this area. Whereas the bigger sign, you can see those posts. I didn't the sign's obviously down. You can see those posts sticking up above this foliage and clearly around this bin. You can see the top of this post. And then when you get closer, you can actually see the sign laying on the ground before you can see the the eastward facing sign. Also, I'd like to point out that there are no illuminating lights like spotlights. They are garden lights or something of that effect that will allow people at nighttime to see the sign when they're driving. It's not like they have a big Batman sign posted right there in the window of that cabin. It's there to make sure that people driving at night, inclement weather or anything like that can see this sign. But to your point, um, Mr. Dilberger, uh, I would argue that those two signs do not affectuate the purpose of the easement. This big sign would be the purpose for that easement. Yes.

I'm sorry. Did I answer your question or I'm sorry, I didn't mean to. Hold off for that. Like a teacher out here. Sorry. Yeah. No, I want to explore this a little bit further. So, so is it the size of this sign that makes it work where the other sign doesn't or is it the location that makes it work or is it the illumination that makes it work? I would say it's a combination of all of them. The size of the sign allows people to see it from a greater distance. The illumination allows it for people to see it at night and its position relative to the driveway in the road allows people to see it around corners, bins, or anything of that nature. So, I would say it's all three. And the reason for those are there to effectuate all of those to effectuate that purpose.

Okay. All right. So if I hear you right then if the sign to the west were larger as large as this sign and if it were illuminated like this sign it still wouldn't effectuate the easement because of its location. Correct. Okay. So you're arguing that the location of this sign is necessary to effectuate the easement. Yes. Okay, I have one more question. Somewhat rhetorical. Okay, Kayla, could you go back to the what we're referencing as the small sign? Yeah, I did a poor job of uh labeling my signs here.

Are we talking about this sign here, the smallish sign? Okay. One that's on the Yeah. So, that sign you said was approximately 1 ft by It is 1 ft wide by 4t tall. That's four square ft. Okay. Do you see the blue sign on top of it? Yes, I do. Okay. In this county, all of the road signs are printed on a steel backing like that road sign, but they're green. Okay.

That is what the county uses to indicate where roads are and what they are. Crosssections, intersections, county roads. That's there's a sign and they're from Nelly Sison to Grandma Barnes. So they we got some interesting names on Sonic, right? So they vary in length. Yeah. But they're all 8 in tall. Okay. And green, which is for most months out of the year the color that is

they are surrounded by this vertical KOA sign is both wider and longer and yellow a yellow reflective material. So if if all the other road indicating signs in the county are that size, wouldn't you think that that would be big enough to indicate where to turn as well?

I would argue no. And the only reason for that is because it's not big enough in order to figure out if you're coming around, if you're driving and you're looking for a sign and you're sitting up tall in an RV, that's going to be below you. You're going to be wanting to look at your eyesight. I would say it's too small. It's only four square feet. I mean, it's really I know it seems it looks a lot bigger than it is. Um, but four I'm very familiar. I've hit the big big sign multiple times with golf balls, unfortunately. Not that bad. So, it's my fault. I thought it [laughter]

But this sign I I would argue is not big enough toffectuate the purpose of an easement. No. To effectuate to signal to in individuals driving that that is where KOA would be located. Okay. And that was four square feet, so eight square feet because it's two-sided, right? Well, I would argue there is no definition in the ordinance that says that a two-sided sign counts as two signs. Okay. I I don't know. I'm not certainly not an attorney. Kayla, could you go to the mediumsiz sign?

Okay. And how big is this one with the propane filling? It's a 4x4. Um, it is a So, it's 16 square ft. Okay. So again, every other sign in the county to indicate a road to know where to turn is less than four square ft. Okay.

So that's approximately four times that size and bright yellow. Are you following what I'm where I'm going here? Like if if it's to affectuate the the ingress and egress Both of those also exceed the minimum. I I totally get from a branding aspect. I'd want it as big as I could. I get it. I I totally understand. But you can't say that these don't meet they don't affect ingress and egress because they're bigger than all of the county signs put together.

I will say that the I will say that the regulations governing county signs is different than that of governing commercial signage governing. Yes. is our I mean that's state budget stuff like and I'm not quite sure if that yellow one is is reflective or not. I was there during the daytime. I didn't I I don't I don't know but it could be.

I mean it could be but I I would argue I don't think it and I'm getting headshakes here from the the my my clients here that it's not. Um but I think you know to see where your point is that this sign is bigger than most county road signs and most bigger than most signs. Sure. Only if you're coming from one direction. you come the other direction, you're looking at the back of of a map and that's a I mean, you're looking at the back of of a sign. It's just wood back there. So, you wouldn't see that sign until a you got close enough and b you wouldn't know it was AOA sign until you passed it. But maybe that location could have a bigger sign.

Maybe, possibly, but then you'd have to get past the argument that there's foliage. So you have to either cut down the foliage or make the sign so big that it could be seen coming around the bend over there. So uh are your um are your clients is their argument on this sign more for direction or for information? Hm. Is this sign your clients, do they consider this sign more direct for direction or for information? It

could be for both. It can also it can inform individuals that KOA is here. Just as if I'm not camping today, but I drive on this road and I look at it and I'm thinking, oh, KOA campground. Okay, that's great. Maybe I want to take my girlfriend for a camping trip or a family or maybe we want to go do a family thing. All right, cool. Advertising. So then all of a sudden I decide to make that choice. I'm driving. It's night time, anything like that. And then I think, "Oh, my GPS isn't working. Where's KOA? I know it along this road." Driving. Driving. Oh, there's there's KOA signs right there. Got it. Turn in this driveway. Obviously, it's not going to be the giant cabin. It's labeled um Bear's Den. Keep on going back towards the back. Um and that's where you're going to find it. So, it can be used for both, but in two different circumstances. And you're basing the legal validity of this on the easement. Is that correct?

I'm basing the legal validity of the sign on the planning commission's granting the permit for the sign. I'm granting I am relying on the easement for the purpose of that I do not need to go to Mr. and Mrs. Scrogggins to get written permission because of the fact that I have that easement. You're saying the easement allows this sign to The easement allows this sign because the sign perpetuates or effectuates the purpose of ingress in egress back to KOA's campground. Correct.

Because you cannot see the KOA campground from the road. It's up a hill fairly steep. I walked in today. Um Wendy's vagen also sets another test that we're supposed to pay attention to before a sign on an easement and it says that it should not amount to an offensive burden on the serving of state. Um we've heard Miss Grogggins testify that they consider this an offensive burden on their property. Um is it your contention, your client's contention then that it doesn't constitute an offensive burden?

Correct. it does not constitute an offensive burden. Um, a for two reasons. One, again, I can't stress this enough, the Fagen court is not overruling a BZA decision. This is not a court that's saying that the commissioners or anything like that has to make that determination. The purpose is because in that case Fagan sued Wendy's, actually sued them to get the sign off. And the court said that the easement that was granted from Wendy's to Fagan allows for a sign to be placed so that it it can allow its customers to go to the auto body shop or the business that Fagan ran. So, it's not directing the BZA to bring that is into a factor when it makes determinations on the validity of a sign. I guess it's directing it in terms of it's a factual difference different fact pattern. They're deciding the rights based off of an easement. That is something that is more along the lines of uh you know this is a valid easement. Here's the sign. Also, I mean, whose harm is it anyway? It's 52 in. But they're not saying that they had to go back to the BCA, argue in front of the BCA or the commission that this is a uh you know that this is something that causes an offensive burden. They're not directing that and that's not what it is. It isn't a remand back to the BCA to take that into consideration. It's a decision of the court that says that you have legally binding easement. And that's really what the holding of this case is. It's not whether or not someone has a 52-in sign or is offensively burdensome to certain extents. Um, and that is that is that holding that issue.

I I'm feeling like there's a distinction without a difference here. If if I may as well

Oh, okay. Sorry. It's just that the second point I have goes back to the fact that you have an offensive burden because the sign is there. So, when the Scrabins purchased the property, the sign was there. So if that's the time that they determined that this was an offensive burden to them, why would they put a cabin right behind the sign? It's they are complaining about a situation that they put themselves directly into. The sign was there first. I mean, you know, and I'm not saying chicken or egg or anything here, but I'm saying that in the terms of a matter of its offensive burden, the one way to avoid the offensive burden is to not put right behind a sign that's going to offend you. I understand. So that would be I mean that's you know so but that those are my two talking points for for that question.

Okay. Well with respect I mean the we at the BCA here sit as a quasi judicial body and and we were not the ones that reached back to case law and that actually was you who reached back to case law in order to inform us.

And so it it seems a little disingenuous to do that and then ask us to not pay attention to the case law where it doesn't suit you. Well, and and I will I will I'm not going to get into an argument regarding the legalities of case law. Um, and I do understand that the administrative body here does take on quasi judicial roles, but the judicial interpret interpretations from the board um are taken as, you know, it's it's not given difference. If this were to go to a court, the court would review based off of the however the court wants to read it really. And I'm not saying that it doesn't hurt or I I'm not taking it into a genuous consideration. I don't mean any offense to that. I'm saying is that the issue in Fagen is not arguing a valid sign placement. They're arguing whether the easement allows for a sign to be placed in the first place. Here in this situation, we are arguing that our sign is valid, that it has a valid permit, and that it should stay. The only reason why the Fagen case was mentioned was to show the the planning commission that we did not need the written permission from the Scro because of the easement. But what he's trying to explain to you is even though your case law doesn't say that, our county ordinance does that you are required according to our ordinance to provide the plan director with written permission from the land owner to erect a sign. It's in the ordinance.

Correct. And

so should we follow our ordinance or should we follow the case law that says we don't need the the landowner's permission? Well, if you follow your ordinance, then you would probably likely deny our sign and then we would go to the court and make the argument that we don't need written permission in the first place and then we would follow what the court can say. So, I can't obviously direct you on what decision we would make obviously, but I and I'm not challenging you on that. I'm just saying that those would be the two turn of events um that would occur if this is the line of thinking that would be going down from the board's decision. Just following from a merely procedural aspect on on where our argument would lie if that's if that [clears throat] is where this issue would be honed in on that's where the issue would be on in the judicial review as well and that's what we'd be arguing for as well.

Well, we're very much aware of the fact that all decisions are subject to judicial reviews. Yeah. And I'm not making I think we agree on this. So where were that? Okay. So with regard to that sign, why couldn't you put a KOA sign on the other side and then put garden lighting under it? What you describe as garden lighting?

What my clients have decided? I don't I don't know the reason for uh the sign being up there uh in the first place in terms of what was the the thought process behind putting the the the sign up there in the first place. Um, but it could be just merely because there was a different need for a vigorous sign. It could be that sign was there in the first place before the big sign occurred and it doesn't have a backing to it. I I I I can't pin on the original landowner putting that sign there or anything of that nature. And then of course turning around putting the big sign up as well. I can't I can't determine the the reason why the original owners put put those there. So, I want to make sure that I fully understand this as far as the timeline on the sign. Um, that sign, the one that's out there standing this evening as we're speaking of the same size, has been there for 40 years, except for the short period of time that a storm came through and took it down.

Not that side. Not this sign. The big the big sign that we're talking about. I'm I'm sorry. That's this side right here. The big sign. I said the one that's out there now. Yeah, correct. The same dimensions in the same location. Is that correct? Yes. You're It was there for 40 or 50 some odd years. Wait a minute. I'm getting a Yes. And I'm getting some heads flying this way. So, do you have access to the internet? Are you connected to this? Can you go to Brown County GIS, please? Well, right now, um, we I I'll show you a representation of that sign standing in place 20 years ago that you have access to 20 years ago.

20 years ago. There's an overlay of Putton County GIS in 2005 of that sign standing around 20 years ago. The original owner asking when you sign up. Well, all right. Please. Um, we're going to we're going to take testimony one at a time just so we can keep things organized and keep our record straight. Um, if you want to talk to are you are you the client? Yes. If you want to talk to him and clarify to answer Ry's question, that's fine. Yeah. There's open source intelligence on Brown County. The way that I understand is that signs been standing for at least between 40 and 20 and 40 years. 20 years. Correct.

Yes. Correct. sign there is written documentation or photographic documentation or mapping documentation that shows that that sign has been there for at least 20 years. Yes. 2005 was the original sign. I can verify that the sign has been there since 1980 if it helps. Well, probably 897. All right, that answered my question. Okay, I apologize for the confusion.

No problem. And I think there was a question about the square footage. It is the same. We we were I believe we were told in a previous hearing that the new after it blew down the one that went back up was larger. The backing or whatever the size was back up was. So, it's a it is a factual it is a factual clarification that it is actually 8 by 12, not 8x10 because of the holiday um at the holiday sign attached to the bottom or it's connected to the bottom of the KOA sign. So, it is 8x 12. It's 96 square ft. And the previous one was 8 by 10.

The previous Yeah, I'm sorry. That's what I That's what I heard you say. The previous is the previous one if I was No, it's it's always been this. It's always been this. So again, I apologize. It's always been apparently. Okay. So KOA franchise agreement the regent. Could you step up the mic? We record these meetings.

I understand. Caleb Carpenter uh Carpenter Legacy Manual. So for a KOA franchise agreement, KOA mandates that the top portion of that sign be 8 by 8 and then the writer that's underneath is what holiday is called is the addition to that and that's what we established has been there for at least 20 years. So thank you. So 8 by 8 8 by 8 is the top portion is different than 8 by 10 and different than 8 by 12. Just just spoke that that was a clarification issue on on actual measurements. Okay. that that is an 8 by 12 and then the holidays do that has the due f to the bottom. I'm sorry 8 by 12. I was going to say your math ain't math.

Yeah, 8 by 10. You're correct. 8 by 10 and holiday has tot but you said the agreement is 8 by8 for the KOA. So per mandate per per KOA franchise agreement the top portion where you see the KOA in yellow. You see the difference in the yellow and the sign is 8 by8. That's what that's what they provide. That's what they said. But that is not 8 by8. that is 8 by 10 plus 2. The holiday the holiday adds the additional two feet to the bottom as brighter. So that's a clarification to the type of park that it is. If it were a resort, it would say resort. If it were a um nothing other than having a base park, it would just be

I'm not trying to be difficult. I promise or obtuse 8x 8 + 2 is 8x10. Correct. That is 8x2. The height overall is 8 by 12. And where is eight by eight? I don't understand. You see? You said 8 by eight plus two. Two feet. Two feet air underneath it. Oh, you're talking about air below it. He's talking about the height of the sign, not the square footage of the sign. And it's actually less than 12. We're just presuming it to be the top the sign portion itself. 8 by 8 in the L square. Two more feet of holiday. Two feet of air. Got it.

I wasn't the air hatching. I was like, man, listen. I'm not great at math, but that doesn't work. It just doesn't add up. I will represent to you guys that the sign the just the total sign we're talking up and over is 8 by 12. How about 8 by 10 with 2 ft of air? With two feet of air. Yeah. I don't understand the two feet apart because that wouldn't count towards your square footage sign boards. The sign boards that have been there for 15 years at least. This exact sign has been there for 15 years.

All right, we we'll get to your testimony in just a minute. Um, any other questions? Uh, Mr. Martin? Well, I'm not sure. I should have brought that subject up [laughter] because what I want to make sure of is you you made comments this evening that that sign that sign has been there. That sign one that's out there tonight has been there and I heard the word 40 years and I heard it revised to 20 years. What I want to make sure is that we're comparing apples to apples on this that is the exact sign, size, width, length, everything in the same location. Correct. 20 years ago.

That is correct. Is that a safe statement? And you can prove that through documentation, correct? Okay. Thank you. That's all I need to know. Okay. So, for my for me, if you'll help me. Um, we've been talking about a valid sign permit. Um, if this is the same sign that's been up there for 20 years and it blew down and then was put up again a few months later, did it need a sign permit?

It was. Yes. So, we reached out I reached out and spoke to Matt Fitz from the planning commission and he indicated to me that yes, even though this sign had existed for some odd years, it was the planning commission's goal and intention to bring all signs into conformity with uh requirements from the planning commission which then of course kicked off us filing and for our permit. So, we we did try to ask for a grandfather in and uh that that was uh that was kicked back. Okay. Logan fits. Logan fits. Yeah. Okay. Okay. All right. Thanks for that. Any other questions for Mr. Mark?

Are we good for limited on each person? Should we take a small restaurant? I want to see how it goes. Do you want a small restroom break before we proceed? Just saying if we're, you know, got old man over here. Um, why don't we take a break for a few minutes and we'll resume at 7:15.

It's always me.

I apologize for delaying this. 30 more seconds. I just forgot. Yeah. A little bit. Yeah.

[bell]

There's a tax on golf. I'll tell you that. Truer than you know, my friends. It's a sport. It's a sport. All right. Looks like everybody's back. I'll resume this public hearing um and ask if there's anybody else here who wants to speak against this petition. do not see any. Oh, well, if if if you could come to the microphone and ident or we can take the microphone off and bring it to you. There you go. Make sure you turn back on. I think you can stay there, sir. Okay. I talk pretty loud.

I'm not used to that.

Okay. Thank you very much. I uh I don't uh Oh, and and who are you, sir, for the record? Okay. Ernie Forester. I'm an ex Kelly owner. I was there in 70 I guess went in 78 and there about 15 years. But all I wanted to comment about the sign was and the rideway. Uh when I bought the place they said they made all of that. We had a 50 rideway. We had signage there and KOA Sportage. The size the size of the sign was always been KOA. If you travel and vacation with your camper, you'll see that big sign. It's almost in every campground. That's just their sign. They put a sign. I put them up and maintained it. I probably changed it three times while I was there. So you say it's been there 20 years. It's not, but it's been up and down. And then the zoning commissions never questioned me when I done done the work on the signs. So I just figure it's a grandfather cost. What else can you do? And why could you take it down? That's just all I'm going to say. Thank you. Thank you, sir. Um, anybody else who wants to speak against this petition? Yes, sir. Oh, here's the microphone back.

Go ahead, Mr. Braden.

My name is Chuck Braden. I'm just a citizen here in the county. Uh, I'll just say that the sign's a landmark and it's been there since the 70s. People use it as a landmark. It's part of the atmosphere of Brown County. That's all I'll say. Okay. I [clears throat] one more time. Is there anybody who wants to speak against this petition? I don't see anybody. Any questions from the board for anybody that we've heard from that haven't been asked. I have one. But it it it sticks in my mind that at the last hearing it was said that that was not the one that's there now is not the one that blew down.

Yes, that's my recollection as well. No, you're not reading me. That's my recollection as well. Um Miss Grogggins, would you come up to the microphone if you have something to speak to this because I I [laughter] have that same memory. I have a photograph of the sign that was after we purchased the property. Okay. You like to see it? I think it was in the original packet actually. Yes, I would like to see that. I don't think we have the original. That's the sign that was up when we purchased the property. That's from ML's listening when we purchased it.

Okay. And how is this differentiated from over here? Well, it doesn't doesn't say holiday at the bottom and it appears to be closer to the ground. I don't know if it's foliage in front of it or what, but that's 4t off the ground. Yeah.

Did you see? You're the one that asked. Get it to you. Okay. It looks and appears that it's this one's Yeah, you know, I just had that from the listing. I didn't you get the chance before you go tonight, we'll need you to email that to Kayla. Okay. I can do that. I think I can send it to you, but I'll I don't remember seeing this one. Okay. All right. May that one more time. And I have one quick question for you, sir. You had mentioned looking up Putnham County GIS. Brown County.

Okay. If you look at Brown County GIS, you can go tools on your mobile tools and then layers. If you guys direct me to do that, I can show you the screenshot. Uh why don't you give it a try? Even if it takes 10 minutes. The only difference is that that one does not have holiday on it. Is that correct? The two 2 by 8.

Yes, that's correct. Uh Kay Parker again Legacy Management. So the holiday was actually added on. It was actually up in the shop. Um KOA was actually a little upset that it hadn't been placed on there yet. So, it had been missing for some time and then it was it went back up when the sign went back up. It's Yeah, it's part of the branding because of the designation for that type of part. The upper portion of that that is just the KOA brand logo is the same. Okay.

And what layer did you say to see that? 2005. I still got it pulled up on my this the computer screen, but it's not [clears throat] showing to the side screens. Of course, it's not. What are you trying to do here? [laughter] No, I promise you. Well, we can look at it on your laptop if necessary. I'll print this out and put it in the packet, too. All right. Well, so you're saying there's not a like a Google Earth view where you can look at. you can see. No, they didn't have Google Earth feedback, but you could clearly see the shadow from the sign in 2005 location. So, it's just showing that a sign was present at location.

I believe that this is I I can confirm that a sign has been there as long as I can. Yes, I see it. And then when you lay it over GIS, you could also get a reference for property line and see its distance from the state. I don't trust their GIS. But if you look at how the road lays, if you look at how the road lays, it's going to adjust further south. Well, we don't know if it's exactly I'm perfectly content to accept that a sign like that was there 20 years ago or 40 years ago. I got it. And yes, that clearly shows a sign was there.

But I I think we've just been proven that there's something different about this current version and the original version. Am I incorrect? All All that was added was the writer on the All that was added to that sign was the writer on the bottom. I understand. But we we were making a point that that is the same sign, but it has not increased in size. It's it's three pieces. That sign is constructed in three pieces. And the top two pieces are the same. They went right back up onto the new post. The post rotted off and broke. So those signs that went on to new post. How tall were the old posts?

They're the same size. Yeah, that that was the 16 off. Cut off the top. Yeah, they're were actually lower. Yes.

Okay. And I would argue since I'm up here, if you've got GIS up, you can actually use the measurement tool and you can site the line make the line of sight argument and you have to consider from a safety standpoint why the it's pertinent to have that sign in that location and that size. The the largest rig that's been in there today was just over 80 ft long. That's a semi. You put yourself in the shoes of a semi moving at 50 miles an hour, 45 mph zone, 50 mph trying to get stopped and they're coming from Nashville, they need they need that visual reference to know what they're aiming for. And without it, if you move it to the other sign, you put a smaller sign up, which is not that violates our agreement with KA. If we put a smaller sign up, that that won't work for them. Um, but the location of it actually, I mean, it would be more suitable to be further even further east and and south would make it even more visible for a safety standpoint. So, it's already compromised where it's at.

So, you're saying you you would be willing to move the sign further to the east or west? I would if it were

I heard east south it would be from a safety standpoint if you're going to put that most ideal place where you have the longest line of sight to see that sign it would have actually move further south and east further off our ement onto the per so it's within the confines I think you can't see right of Okay. Anybody else who has something they want us to hear about this? If not, I'm going to bring this back to us on the board to discuss and uh and reach a decision on and hear from each of you in terms to start with. James, you never get to go first.

So, we do now have a a signed um not signed approved sign permit in this packet now. Yes. Okay. I mean, not timely filed, but filed. You mean a written policy? No, a sign permit. Excuse me. I would like to correct. It's a It's a timely filed sign permit. We do it with Can you go to the microphone if you're going to

All right. Um, Alex Martin once again uh for KOA. It is a timely filed sign permit. Speaking with the planning commission, we filed it. Um, we actually got an extension in order to file it because of the by the time that my office had received word that there was that they might they were in violation. I actually reached out to the planning commission and got an extension for 2 weeks and that's when we timely filed it. So it it is a timely file permit. It is not untimely. It is sorry. Sorry. So are you asking did Kayla issue a sign of her? Yes. The answer is yes. I did. Yes. Okay.

And the petitioners are challenging her decision. Yes. Say she made the wrong decision to issue that permit. My bad. Okay. any thoughts about uh whether or not you want to uh grant their appeal or not? Well, I was one that voted that the uh on the side of the petitioners, but I Well, now you test, right? I'm I'm going to change my mind. All right. Do you care to explain what's made the difference just for us?

Because that's the that's the original sign. I was with the understanding that it was a new sign, a bigger sign and but it's not. It's just in compliance because it has the holiday on it now, but it didn't have a holiday plaque. It didn't have any fruit. So your thinking is they don't need the land owner's permission as our ordinance says because Yes, I do think they do need that with our ordinance.

You do? Okay. Well, they don't have it. So why wouldn't you grant their effort? Yeah. Oh, think about Randy. Dave, question for you. Um, you heard this all this testimony information that's been expressed here this evening. Has your uh opinion legal opinion changed since the previous one or you still contend that the easement allows for this sign to be there? And I might I don't want to put words in your mouth, but

No. Um I I I would just say that that's the issue for you guys to decide tonight is whether the the the signed cases are preided would satisfy the requirement of a property owner's permission or not. And I think your recommend what we did you have a recommendation on whether you think it does or is not. I I I think that's for the board to decide. Sounds a lot like I do not recall council.

Any thoughts you want to share with Well, I'm sorry.

Any thoughts you want to share with the rest of us up here? Uh well, the last time I voted, um not in favor of petitioners because, uh based upon what I thought I'd heard Dave say and also the recommendations of the staff, um it seems to me that they have a right to place that there just based upon um the allowance under the easement. Um, I'm not convinced that they have to have the owner's permission because I'm wondering if the easement does not um transcend that and allows for that to take place. Um,

so something that supersedes our ordinances. Well, you use a lot of things that can supersede our ordinances. But well, I'm asking because, you know, the attorney for the campground said that we can't let you know the legal cases that they brought before us and stuff that that doesn't influence our decision as a BCA. Who you well at the same time saying that we ought to pay attention to certain parts of those cases. Who you quoting? Uh Mr. Martin. Yeah. You make a point that we aren't to be influenced or controlled by case losses being brought before us.

Uh if I may sir, we're actually in Let them finish discussing first because right now technically we brought it back to the board. Thank you. Not that we don't still need input, but let them finish their I'm on the spot now. I'll let you think about it. Well, unless unless you want a long time. It wasn't through talking. [laughter]

Yeah. I uh Well, I voted I'm going to keep my vote the same way, but I hadn't last time based upon what I've heard. The testimony, I felt like it was fairly compelling. The sign has been there for 20 years. We have evidence of that. Uh I understand the petitioner's concerns. Um, I'm sure it could be somewhat of a a visual obstruction to what you would like to see, but I think the um the evidence that I've heard I think really is weighted more towards allowing for the um the sign to remain.

Okay. You want to go next? So, last time I decided reluctantly against the petitioners and um I'm going to reluctantly decide against them again for the reasons that have already been discussed. I think the point of our ordinance to require permission from the land owner would apply if there were an easement there. And so I went into some detail at the last meeting about why I didn't like a lot of stuff in a lot of language in the Wendy's of Fort Wayne case, but I think it does apply. The sign was there first, the cabin was there second. Um, just as a side note, it would be nice if KOA would talk to your neighbors. At some point, you're going to have to go down to Bear Hardware and get something. So that's neither here or there. So I am not going to change my rope. And

I I don't believe that I've been shown not sure how to say this. I believe I'll keep my vote the same as previously stated. Um the summit was erected before the permit was issued. It was taken down after a a [groaning] order from our office was asked them to. Um according to our ordinance they are required to have a homeowner signature for a valid permit. That's that's in our ordinance. Um I believe section 4 15 in our ordinance also talks about uh the necessary effectual let me find the let me find the verbiage that I'm wanting to Uh, is the sign necessary to affectuate the easement? The answer is no. It's not absolutely necessary. The other there are two other signs or another lo the other location work absolutely they exceed what the county uses to dictate where roads are now. Um, so I don't I don't see the need for that to affectuate the ingress and egress. Um, the argument was made that people need to see. I understand [clears throat] that like a digital billboard. I mean, is that if

we're going for bright and loud, you know, we've dealt with this previously in this county with other national brands. McDonald's wanted to put up a lit sign, the golden arches. They're iconic for I would say it's almost as iconic as the KOA logo. They fought tooth and nail with the county. We have a sign ordinance that says you can't have lit signs. It didn't meet the ordinance. We didn't let them know, but they still don't have it. They have a an externally lit sign. Now, whatever you feel about lit signs, our we have an ordinance that we follow and that's that's what this board makes decisions off of. Uh the other one would be uh I tried to write it down, but I can't read my writing. Uh there we go. Uh section 4.15 of Brown County's zoning ordinance entitled miscellaneous sign provision states that among the purposes or objectives of section 4.15 are minimizing the possible adverse effect of signs on nearby public and private property. example, the adverse effect of obstructing natural scenic vistas or maintaining and enhancing the aesthetic thing, but I I don't believe I understand it's a brand thing. I think that there's a solution here both ways. Um, and I'd love to see that worked out. Uh, but as far as my decision this evening, it's going to be based the same as it was before. I I I think it needs to come though.

Okay. All right. Um Jane, anything else you want to add before I talk? Okay. All right. Here's the way I'm looking at this based on what I heard tonight. Um Mr. Martin's client is not challenging the fact that they need a sign permit to erect this sign. I've heard testimony that suggests that this sign is a different sign than the one that was originally up there. But that makes no matter. They once informed of the fact that they needed a signed permit, they filed for a signed permit. They received a signed permit. The question before us is was that signed permit issued properly or should it not have been issued? And the reasoning that the petitioners are giving is that our ordinance requires the permission of the land owners in order to erect a sign. Mr. Martin on behalf of his client is telling us that we don't need to pay attention to our ordinance because the land the the his client has permission based on Indiana case law which sets a precedent. And that precedent is that you can have a sign on your easement and the landowner doesn't have to give permission. Permission is automatic, if you will, based on case law. Um, now the case law that he's referring us to says that there's two conditions to decide whether or not uh you're permitted to put up a sign on an easement for ingress and egress. One is, is it necessary to effectuate the purpose of the easement? We've heard a lot of testimony tonight that this sign is not necessary to effectuate the purpose of the easement. You can find KOA Drive from the several other signs that already exist there. Setting aside GPS or a map or anything like that, you there are signs there to

affectuate the purpose of the easement. The case that Mr. Martin cited also says that that sign if you decide that it is necessary should not place an undue burden on the subservient estate. An offensive burden is the language that's used. We've heard testimony that in the opinion of the petitioners, this is an offensive burden on them. This sign is erected here. So in my mind, the case law president doesn't apply here. It doesn't override our ordinance. our ordinance governance here and our ordinance says that they need the landowners permission to put up this summit and so for that reason I'm going to grant the petitioners request everybody understand my reasoning

okay yeah very well very well put okay um any further discussion then. Yes. Go ahead. Uh I would like to allude to what Darla had said earlier that it would be nice if the two parties can come together and do some discussing and talking about if there is some common ground here on resolving this issue. That's not something for us to dictate here with this board. But just for the sake of community civility, I think would be really positive move to if that can be done for that to be done. I tried. Pardon me.

I tried. Okay. I'm I'm not asking for any comments to what I just stated. I'm just going to lay it out there and leave it and that's all I have to say. Okay. All right. Then uh get get Mr. Martin, you look like you wanted to share something with us. Yeah, I just had a quick Yeah, forgot. Got to go to the podium. Sorry. It's it's so that when they listen to record minutes, we know who said what. I was just confused on Miss Gore's decision. I didn't catch it, I guess, and I just wanted to know what what the decision was from from Miss Gore.

Well, I guess we'll get her final decision when she votes, but you're welcome to explain your reason. Oh, I didn't know. I didn't know if she voted or I haven't voted yet. No. Okay. When I bring this back to the board, it's for us to discuss among ourselves. Got it. Leading that discussion. That's okay. Thank you for clarifying that before I interrupt with my uh unsolicited comments. Well, all right. So, I've lobbied as effectively as I can. I don't think I can lay out my reasoning any better than I just did. I would be willing to make a motion. All right.

Make a motion to approve docket 25- A-02 uh with the reasons being no valid owners land owners permission at the time of permit. So that that that kind of makes the whole thing invalid. Um and that I don't believe that particular sign that particular size makes whether it's there or not makes that act easement ineffectual. It doesn't stop anyone from coming or going. And that's well [clears throat] and it is causing because it causes undue uh whatever that verbiage was on the prevailing estate. I'm not

No, no, no. That's fine. Um those are my reasonings. So, if I understand right, what you're making a motion that we grant the petitioner's request to reverse the decision of our planning director to grant this sign permit. Correct. Because our ordinance requires the permission of the land owner and the planning director did not have that permission. Correct.

And therefore, she made her decision. Okay. Okay. I understand. I'll second that motion. Any discussion on the motion? All right. Um Danielle, roll call vote when you're ready. This is on the motion to grant the petitioner's request to reverse the decision of the planning director to grant the sign permit. Andy BLS, yes. Donald Brown, no. Randy Jones, no. Jane Buer. No. Ron Delberger.

Yes. Okay. The motion fails. Further discussion then on this particular case. Yes.

Unless someone wants to make another motion. I am leerary myself of throwing our zoning ordinance out the window, which it feels like we'll be doing if we do not grant this request. Because if we choose to grant a to deny this request, let Kayla issue a signed permit without the permission of the land owner, then we're basically invalidating that part of our zoning ordinance. Was that something I want to do or not? No. A vote was taken. There was a vote taken. The motion did not pass.

The motion failed. The motion failed. So, no final action has been taken on the application. That's correct. I'm just confused on where we're doing that. Oh, we had a motion to uh grant the request. That motion failed. Correct. So, um, and I have not had a second motion presented to me, so we're still discussing. No decision has been reached. Okay. I, thank you for just want to clarify where we're at.

I understand your concerns about what our ordinance says about getting permission from the land owners, but I really I really do think that applies in situations where there's not an easement. Mhm. So then we're back to the ease in the question how that intertwines with Yes, we are this particular issue. So do you think the land owner do you think that a person can erect any sign in the easement without the permission of the landlord? No, I still think it has to meet um our ordinance requirements.

All right. Right. So, it has to meet the size requirements and uh the lack of of internal illumination and the other requirements of our sign ordinance. Is that the only thing that's necessary for them to put up a sign in the easement? There's testimony that this sign has been there for quite a while. So, so are you treating this as a sign that requires a permit or not? Well, I think I can take into consideration, even if it requires a permit, the fact that it is similar to or the same as signs that were there previously.

All right. Well, it could be a totally different sign, but you're saying that they don't need a sign permit because it's on an easement. Is that right? Not saying they don't need the land owners permission to put it up because they have the easement. It's the permission. But isn't that a requirement of issuing the permit? I mean, our ordinance doesn't make an exception for except unless the sign is located on an easel. So, how do we how do we get to that exception that isn't written in the ordinance? May I intercede something?

Sure. In my mind, if we vote to approve this petitioner's request to deny the item, we are not violating our ordinance unless it were to be taken to the next level of court and a judge determines that our ordinance violates something. If we vote to deny this petition, we are superseding our ordinance. Yes, I agree.

One is definitely superseding our ordinance. The other may or may not, but that that this board is I don't know that that's our job to determine. I think that would be on a civil court to determine. Can I say something? question.

I think if there had never been a sign there, if it wasn't the same sign that went back up, all of this would be necessary. The permission and everything else. It's it's already been proven that the sign has been there 20, 30, 40 years. I don't know. It's several other numbers put out there. So, the fact that it's just putting the sign back up kind of grandfather is that in yes or no. I don't know if that's the right term, but Well, it is. If I understand you right, you're arguing that grandfatherings, even though the parties involved understood that a signed permit would be necessary. If the sign ever came down and it were to go back up, a signed permit would be necessary. The grandfathering wasn't forever. You're arguing that you think grandfathering should have been forever for this summer.

They No, because they got it. I'd like to go to a point of order here. Yes. Uh I think our work is done. Uh we got a motion. There was a second. There's discussion. Vote was taken. And uh I think we have a uh resolution or finality to not do that. No, we did not. need to make a motion to deni to deny the appeal and have a majority uh agree to that. So go ahead. No, it's okay. Okay.

No, the the the original motion was to uh affir to appeal to to grant the appeal in you know revoking the sign permit. That motion got two votes. It was to to be a final action. you would have had to have had three votes. So nothing happened no official action was taken on that or no final action was taken on on the on the case before you. So if you want to move it forward, you would need to make a motion to say we deny the appeal and see if you get three votes. And if you do get three votes, then the appeal is better than I. And I will make that motion. I move that we deny docket number 25- A-02. And I will second that motion.

Okay, we have a motion that's been seconded to deny the petitioner's request to reverse the decision of the planning director to issue a signed permit. Is that anybody? All right, Danielle, roll call vote, please. Round. Yes. Randy Jones. Yes. Ber, yes. John Dilberger, no. Andy Boys, no. All right. Um, your request has been denied. Thank you everybody. Thank you.

Thank you. Everybody get a chance to look at the proposed dates for meeting next year. I would get rid of probably but I don't thank you everybody. Thank you very much.

Thank you very much.

Thank you very much. Thank you so much. Thank you. You too. Um then I move to accept the proposed dates for uh the docu dates and meeting dates for 2026.

Yes.

Brown. Yes. Um, a reminder to everybody that our meeting in December is on a different date. Same time, different date, the 18th, not the 17th, right? On Thursday, December 18th. Yes. Uh, we've got two variances and then the tourism that we've had on the agenda for the last two months. Unless they want us to table, I believe they can only take they can request a table twice. I believe they used up there. I believe so. I'll check that too. Any announcements, sir. No.

No. Oh, that's okay. When is the meeting next month? It is on its normal day, which is the 16th. December 16th. It's just this board that gets kicked out of the room. That's such a harsh term. Kick out. All right. Well, in that case, I didn't entertain a motion to adjurnn. I make a motion to adjourn. I'll second the motion. Okay. Oh, now we agree. Danielle, roll call vote to adjurnn, please. Jane, yes. John, yes. Brown,

yes. Yes. This meeting is adjourned. All right, guys.