Board of Zoning Appeals - Regular Meeting

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I don't have a script tonight, so I'm winging it. Welcome to the Town of Avon board of zoning appeals meeting. If you'd like an agenda, they're on the table over there. And if you would like to speak on any topic tonight, please sign up on the signup sheet over on that wall. Um, we will call you forward. We'll ask you to state your name and record, your name and address for the record. Um, we ask that uh you set your cell phones to silent and if you need to take any phone calls, please step out in the back room. We will get started. Please stand for the pledge of allegiance. To the flag of the United States of America and to the republic for which it stands. One nation under God, indivisible, with liberty and justice for all.

Roll call, please. Paul Guggenberger here. Ann here. Katherine Rensburg here. Marcy Tassler here. Marcus Turner here. First item is uh election of officers. Does anyone have any nominations for chair? Like to nominate Marcus Turner for chair. nominate. Any other any any other nominations? Okay. All in favor say I. I.

Anyone opposed? Next, we'll have nominations for vice chair. I'll nominate Annman for vice chair. Second. Any discussion? Any other nominations? All in favor say I. I. And finally, we will open nominations for secretary. Nominate Paul Lambi for secretary. I'll second. Any other nominations? All in favor say I. I.

Okay, we'll move on to the minutes from the January 20th, 2026 meeting. Anyone have any questions or comments? And if there are none, we'll entertain a motion. I move we approve the the meeting minutes from January 20th, 2026 as presented. There's a motion by Mrs. Ransburg. Is our second? I'll second. Second by Mrs. Tashel. Any discussion? All in favor say I. I. Anyone opposed? Meeting minutes are approved. Next item is request for continuences or agenda modifications. We do not have any.

Next item is public comment. Does anyone wish to address the board?

And with no one coming forward, we will close public comment. We have no old business. We'll move on to new business. Uh this is V26- 26-01 Chick-fil-A East. Thank you, chairperson Turner, members of the board. V2601 is a variance of development standards to allow for an encroachment into the required 60-foot front yard setback uh within tier one of the US Highway 36 overlay. It would allow for construction of an expanded canopy over the drive-thru of the existing uh fast food restaurant located at 10791 East US Highway 36, which is lot 2 in the Meer Park subdivision. It is a 1 and a half acre parcel. Uh you can see it on the overhead outlined in turquoise along the south side of US 36 almost halfway between Ronald Reagan Parkway and Raceway Road. It is uh surrounded by u commercial retail uses on all sides, all of which are zone C2, all within the US 36 overlay. for this particular property. The building was constructed in 2002 after receiving development plan approval and variances variances of development standards which related to basically the parking and drive aisles. Um, interestingly, for what it's worth, many of those items are now compliant. Um, our ordinance previously allowed or required um what I think would objectively be viewed as a ridiculously

high number of parking spaces for a fast food restaurant. Um, and at the time that these variances were approved back in 2001, we didn't our ordinance didn't apparently did not distinguish between oneway and two-way drive aisles. So there was a requirement for a a wide drive aisle even where uh there was angled parking and oneway traffic. So uh that's just a little history on um how the building came to be and the approvals it received. And then then in 2018, the board of zoning appeals approved a special exception and plan commission approved a development plan review to allow for a small building addition and the addition of a second drive-thru lane. Um and then earlier, well last year, uh we administratively approved a development plan review to make minor revisions to the parking and landscape layout. This is a look at the front of the building facing generally south from the US 36 frontage. You can see the existing drive-thru pickup area. And you can see that there is a canopy there that does extend out from the building. It's I'm not sure what the exact um projection is on that, but it probably covers about half of the first drive-through lane. What they're proposing would u cover both of the drive-through lanes. This is just looking west um in the area of the drive-thru. Again, you can see the canopy sticking out. um 6 or 8 feet from the building and covering part of the first drive-thru lane. This is look then looking the opposite direction east. Um US 36 of course would be out on the left side of the frame there. And these would be the two

drive-through lanes coming north in front of the building along the north side of the building. This is just kind of a zoomed in view looking east. um noteworthy in addition to all the sign structures and things that um are out in the required front setback area, which is okay because signs are allowed to be out there. They're not required to comply, but they do provide um a lot of visual obstructions, which is relevant to how we judge granting or um making a recommendation on a variance in the setback area. But in addition to these signs out here, you can see in the background, this is the canopy for the Meyer gas station. It extends out further into the setback. Um the Meyer was constructed back in 1995, prior to the town um having zoning control. So it both before the town had a zoning ordinance and before, of course, the US 36 overlay was in effect. But the proposed canopy that we're talking about today would come out over this drive-through lane. And I will mention when the petitioner speaks, I know their presentation they kind of have a better representation um illustration showing how that'll look, but it wouldn't be out of character with the surroundings. This is a look at the site plan again, US 36 here at the top. The site is accessed from this um private drive aisle between Chick-fil-A and Meyer. And traffic for the drive-thru comes in on the south side of the building. They order in this general area here and come around and pick up here. This just a little bit maybe slightly zoomed in view of the outline of the canopy here where that would sit. Um extending out from the north facade. What we're trying to show here is an

approximation of the required 60- foot front setback line um on both the north and south side of US 36. That setback which is greater than what would be um required in a typical commercial district um is specific to tier one of the US 36 overlay which is the properties that front right along US 36. Um again if um outlined in blue here is the Chick-fil-A site. The red line is giving an approximation of the 60 foot front setback line. And you of course you can see here the Meyer gas station canopy that extends well into the setback. Um to the west where the McDonald's is, they actually, it's hard to see on this exhibit, but they do have um very small canopies over their drive-through ordering area that are out in the setback. You can see the White Castle extends, encroaches into the setback as well as the two retail buildings to the west of it. And then directly across the street where you have the crew car wash. Um, one of their buildings extends into the setback. And then you have this entire building which I believe was constructed as a dwelling back in 1993, but it's now a veterinary office. The entire building is within the 60oot front setback. And then a little further to the east, you have the Speedway gas station that has their canopy extend well into the setback. They got a variance for that in 2006 to have a 25- foot front setback for their canopy. So what the what is before you today is a request to have a 35 foot front setback. So it' still be back farther than both the Meyer and the Speedway canopies as well as some of the other structures like this uh veterinary office directly across 36. So of course looking at the findings that are required for a variance of development standards. The first being

that it would not be injurious to public health, safety, morals and general welfare of the community. We see no reason why this proposed enlarged canopy would be injurious to the public. um by and large because of all the other obstructions that are already out in that required front setback area along this portion of 36. And a lot of that has to do with a lot of these buildings and structures being developed prior to the adoption of the US 36 overlay which went into effect in 2008. Um as well as some of the previous variances that have been granted. But having all those encroachments already out there, um, we feel that, you know, adding this one, it's not going to, it's not as if you have an open vista in that 60 foot front setback where this is going to stick out like a sore thumb, so to speak. Um, it would really be consistent with what's there. The second finding being that the use and value of area adjacent to the property would not be affected in a substantially adverse manner. Um again for similar reasons because encroachments into the required setback are common place. We find that, you know, this would be consistent with the development pattern of the area and therefore we think that any impact on the neighboring properties would be minimal. Um, if there would be any at all given that there are encroachments into the 60oot front yard setback for most of the adjacent properties. Third finding that there'd be a practical difficulty in the use of the property if we strictly apply the ordinance requirements. And um two things, the fact that this site was platted and developed prior to adoption of the US 36 overlay, which is what

imposes the greater setback requirement. Um we certainly believe that's a practical difficulty. Um, also if you look at just the shape of this lot, it's considerably wider than it is deep, which is a little atypical for a commercial outlot along US 36. You can see most of the other outlots are a bit deeper. Um, so that gives them a a makes it easier to comply with a front setback requirement, whereas this one is certainly not as deep north to south. So that contributes to the practical difficulty as well. And then getting to our two additional findings that the variance request is the minimum necessary. Um we do believe that this is a the minimum deviation required to provide the desired shelter to customers and the employees who will be outside delivering orders. most specifically to the the second drive-through lane which can't be reached obviously from the building. And then finally that the variance was the need for the variance was not caused by the owner previous or present. Again um we think the practical difficulty is mainly due to adoption of the US 36 overlay standard and applying that to properties that were already platted and developed. Um, so for all those reasons, we do believe that the required findings would be met and therefore we are recommending approval of this request subject to substantial compliance with the site plan. And I'd be happy to answer any questions the board may have.

Questions for staff? Would it be correct to say that in order to be completely in compliance, they would almost have to completely rebuild the building because of the size of the lot and the way the building is currently situated?

Yeah, I believe that I believe that is a fair statement. Um I believe the the existing building is um well with the existing canopy has about a 55 foot setback um from US 36. So it's non-compliant although you know it's it's a legal non-conforming um situation at this point. But yeah, certainly if they wanted to meet the or meet the 60 foot front setback in its entirety, they would need to make changes to the site for sure.

Anything else for staff? We're right here from the petitioner. Hi. Did I just press the button? Okay. Okay. And you're going to actually point that way, not at the screen. Okay.

Hi, my name is Brandy. I am from Orlando, Florida. Address is 220 East Central Parkway, also called Springs, Florida. Um today today we're talking about Chick-fil-A. Um Paul did a great job kind of explaining it. Um this is the current project site. Uh this location is existing. It's already offshore operational. Um at the drive-thru the site currently utilizes a dual stacking approach, two ordering points and a dual fulfillment lane. Yeah.

Okay. Um the site is heavily congested during peak hours. Um the installation of the canopy over two lanes at the order mill delivery. Um as depicted in the picture that you guys saw before. This is to protect members from the elements along with uh customers that are coming. Um there's no heaters right now out there. So when they are delivering the mills to the second lane, they're not protected at all from the rain or the snow or ice or anything. Um, there will be heaters out there. There will be fans when it's hot. Um, to kind of make the staff comfortable while they're out there delivering and to also make everything go smoother and faster. The canopy system greatly helps expedite cars through the drive-thru and it allows for multiple orders to be taken and multiple meals to be delivered simultaneously. Airplane is requesting the following variants. Um, a 25 encroachment on the open air um order meal delivery canopy. Um the requirement is a 60 foot front yard setback. Uh this is how the site currently looks. This is what it will look like with the new canopy. Uh the variance approval will better serve more customers on site, a safer environment for the team members to help them through the elements and reduce customers drive-thru wait times. Um this is basically going over what we just talked about. uh the property um granting the variance does not affect the other properties around it. The proposed variance allows for installation of the dual OMD canopy that improves operational safety and effective without increasing building square footage. So we wouldn't be changing anything else on the site or the building itself, just the canopy. Um the hardship is not self-imposed. We need the variance arises for existing site conditions and the abolition of the drive-through operational um requirements rather than any action by the current property owner. You unique characteristics of the

Chick-fil-A. Um we all know that Chick-fil-A typically generates a lot of traffic. Um you guys are blessed to have two within 8 minutes or 10 minutes apart from each other. I noticed yesterday. So that's very nice because it kind of breaks up the traffic from being all into the street. And this is only going to help serve that even better. Um, on-site stacking. The basis for this request is to increase the on-site stacking and reduce off-site stacking in order to improve traffic congestion during peak hours and better protecting the team. No harm to the public welfare. Granting that this variance will be determined to the public rather than the intent to improve the existing conditions, specifically the traffic congestion during peak hours, which will lead to more efficient drive-thru and improve the overall customer experience and safety. And that is it.

At this time, open up the public hearing at uh 650. Is anyone signed up to speak? I believe the only other person, Roxanna, I was with the petitioner, so nobody else has signed up. Nobody else. Would anyone else like to speak? And with no one coming forward, we'll close the public hearing at 6:50. We'll open it up for discussion. Um, yes. I do have a question for the petitioner. So, this request is for the the dual drive-thru lane already exists, correct? Yes, it already exists. The lane is already there. It's just for the canopy. Yes, ma'am.

And how does extending the canopy improve customer service times? I could see how having having two having an additional drive-through lane, but the additional drive-through lane already exists. So, how does the canopy right now? They're not properly serving that second lane. So, if it snows or if it's raining, they're not they're not using it. They're not using it properly because it's not covered. Okay. Thank you.

Other discussion. I guess I'm pretty much in agreement with the staff report with the exception of the criteria three for for practical difficulty and uh the the addition of the canopy. I mean it's it's I guess in my mind it's a preference and they really haven't addressed practical difficulty here. And I'll go to what the what our staff said about it. It talks about how the uh uh how the lot is wider than it is deep and it would preclude development of the site in a manner similar to other lots fronting 36. I I agree this is consistent with what other lots do. However, the site's already developed. So adding a canopy is not developing the site. It's not precluding development. It's something that's already there. And then to what the petitioner said, they said without the variance, and the variance being for the canopy, the site would be unable to reasonably accommodate modern operational standards and safety measures for drive-thru service. I'm going, what are these what are these modern operational and safety standards

right now that not that not everybody else appears to have? Oh, I'm sorry. Go ahead. No, I'm so sorry. I didn't mean to. No, you're okay. So, when you're looking at this picture here, there's a curb there. Right now, there's nothing. So, as cars are using that bypass lane, there's a potential to hit not only the cars in that driveway, but staff that are delivering meals there. There's nothing to there's no there's delineators there, but there's nothing really stopping them. So, if you go back to where the new canopy will be, that new curb stop will be there where the footers are. So it's not only protecting the food footers but the drivers in that lane and the staff that are delivering meals to that lane.

Okay. So that that physical barrier will be the barrier that's for the circulation of the traffic and everything on the on that on the right hand side would be the only places where staff would be. Okay. Yeah. I have a lot I have a lot easier time accepting that. Yeah. Right now they just have delineators out there. I mean, that's not stopping any car from running over those. They're made of plastic. So, with that clarification, I'm happy with the practical difficulty. Thank you.

I agree. I think um you know, ordinances exist for a reason, but so does the waiver and variance process. And I think this is a perfect example where the variance process works to achieve a desirable out outcome for everybody. So, I would agree. I mean, I think what staff has presented is is they did a good job in this that you've got a business that's been operating for a while, now they're improving operations and making it safer. And the one thing we always talk about um in commercial developments is making sure you got safety for pedestrians as well as drivers and for the workers. So, you know, I think and it fits the character of that area for the commercial development. So, it's not a oneoff in that area.

Any other discussion? We'll entertain a motion. I move that we approve V 2601 Chick-fil-A East, a variance of development standards to allow for 35 ft front setback for an expanded driveth through canopy in tier one of the US Highway 36 overlay, minimum 60oot front setback required because it will meet all the requirements for variance of development standards under state law, subject to the adopted findings of fact and subject to the condition listed in the staff report. Second.

There's a motion by Mrs. Mrs. Ransburg and a second by Mr. Gutenberger. Is there any discussion? Roll call vote, please. Genenberger, four. Inman, four. Ransburg, four. Tachler, four. Turner four. Thank you.

Much appreciated. Thank you. Our next item on the agenda is variance 26-02 joint. Yes, thank you. The joint property is uh located at 226 North Avon Avenue. uh they are requesting a variance of development standards to allow for a 336 square f foot building when the minimum of 750 square ft is required for a primary building. Again, it's at 226 North Avon Avenue is it is an unplatted parcel 93 of an acre. Uh it was previously approved with a single family dwelling and that was demolished in 2022. This is the zoning map of the site. Uh the blue is C2. So the blue from where the Kroger Plaza is extends north on Avon Avenue. Kroger is here and it extends north on Avon Avenue. And this is the site here. This is just a zoomed in version of that map without the zoning overlay. So the site is here. Um, directly across the street is Moody Meets and then there's a commercial strip center to the south of it. And then north is a is a hair salon, previously a home, but has been converted to a hair salon. This is the subject site looking north. Avon A is off to the right. You can see it is is vacant except for the the tree line that is there. This is looking northwest into the site. There is a small equipment P. I believe it's a generator of some sort.

It's a cabinet. Basically the same thing the building will do.

This is looking across the street. That is the Modi Meets building. And then this is the commercial center to the south. So, the petitioner originally filed a variance to have not only this building, but to have uh quite a bit of outdoor storage of material and possibly equipment. Uh we made them aware that we were not supportive of a variance for outdoor storage that much outdoor storage without a primary building. they have then um requested to withdraw that part of the var or that variance request and I'd like the board to acknowledge that at this hearing and then the site plan was revised the outdoor storage area that I spoke of was going to be this area in here and that being withdrawn we're just left with the small building and a small parking area and then the this would show the landscaping around the parking area and the I don't believe I included this in your mailed packet. I apologize for that. This is an example of uh what they're wanting to put on the site. Um this is transported as a unit to the site. So it's brought in on a truck and then placed on a foundation. It's not constructed on the site. Uh the ordinance requires 750 square ft for a primary building. This type of building would normally be considered an accessory building and it wouldn't have a minimum square foot size, but because this is the only building being placed on the site at this time, um it is it becomes the primary building and therefore is not able to meet the minimum square foot, the 750 square ft. Um this is again not again, but this is for a fiber optic internet provider. If

you didn't know what Joink was, that's what they are. Uh come to town to um provide fiber optic internet with throughout the community. Findings of fact uh the first one being injurious to the public health, safety, and general welfare. Uh we see no reason to believe that a small fiberactic building located at the back of this property would have any impact on public health, safety, morals, or general welfare. Number two, the use and value of the area adjacent to the property would not be affected in substantially adverse manner. Um because the proposed structure would be located at the back of the property. We believe it would have minimal impact. Um it would be difficult to see visually, it would have very little traffic to it, so there would not be um comingings and goings at all kinds of times of the day. Um, and then the tree line that's on site already would screen it from the residential that's to the west and it would also screen it from the property to the north, although that's not uh residential. Number three, the strict application of the terms of the ordinance would present a practical difficulty. a utility provider or f fiber optic internet provider is a permitted use in the C2. But the ordinance doesn't contemplate a utility provider that doesn't need a building to provide any kind of services. It doesn't have an office. It doesn't have a retail front for anybody to come and but they're utilizing the site to provide the service. So if a utility wants to use the space and they are permitted use but they don't need a building, the ordinance doesn't recognize that sort of function. And so we believe there is a practical difficulty in for this provider to

provide their service without having to build an unnecessary building. Uh the variance requested is the minimum necessary. We believe that they have provided a small building but it would be the minimum um that they would need to bring a portable type structure to the site that anything more would be a full construction of a building that again would not be necessary and the variance is not caused by the owner previous or present. We believe this is due to the ordinance not contemplating a utility type of use at the site that would not need the structure that's contemplated in the minimum floor size for the building. Again, it's a relatively small concrete shelter located at the rear of the property. Uh we believe the intent of the standard of 750 ft is there to promote reuse of buildings when they become vacant. So if you have a small very small structure and it becomes vacant, not a lot of businesses will want to use that or can find ways to use that. So it it promotes the reusability down the road. We don't find that here because it's a structure that when they leave, if they leave, the structure will simply be removed and then the lot can be um utilized for a new development per standards. I already covered that. It would be on a permanent val foundation meet building code. Uh I mentioned the reuse. Uh, one other thing is that if they did want to build another building, if they

decided they wanted offices here or wanted a retail presence in the community, which I do believe they want, but they're going somewhere else with that, they could build a building at this site still because of the location at the back of the site away from Avon Avenue. Therefore, we do recommend approval of this variance request subject to compliance with the stat with the site plan that is in your packets. be happy to answer any questions you have. Questions for staff?

Yeah. Um I do I just want on the language on the recommendation. So when you say subject to substantial compliance with the conceptual site plan, what what does that really mean? That they have to meet the site plan, but if they have minor very minor changes, we as staff could approve those. So if they wanted to shift it a few feet here or there but still in compliance with the ordinance. Okay. Or maybe the structure would be, you know, tilted slightly or something like that.

Okay. And with the the the building of the putting in the small building, however they do that, is there also a requirement to meet like a paved driveway, parking spaces? It shows that in the conceptual plan, but is concept right now. So well I mean I say conceptual but that is the plan they are proposing and yes they need to meet parking which they have provided. Okay. And could they use any part of that property as a lay down yard for outdoor storage?

So yeah I mean a lay down yards like come in and and we'll I'll we'll get to you when you do your presentation. Outdoor storage is only allowed on this site if it's on this site plan for the well when they file their DPR I should okay and it has to comply with that and if they don't get approval for any outdoor storage it would not be permitted and we would site them or go and talk to them should that become a problem.

Okay. Thank you. Any other questions for staff or are you hear from petitioner? Good evening. Um can answer some of them questions a little. Also, we do not plan to use that. We will.

I'm sorry. I'm Tim Mcomes. Yes. Uh work for Joink. I'm out of Terode, Indiana, 1801 Oakidge Parkway South. um been with the company 10 years, been through a lot of communities and uh um can appreciate that you guys are allowing us to build here. So, uh the site plan we had proposed originally was just uh for temporary while we're doing the construction to bring our rails off the roadways out of the way and have a place to put it. When we realized it conflicted with that, we decided to go away from that. We're we're actually getting a lot right now from the town that we're going to have to move off of. So, we're looking for another lot for that use outside of that zoning. Um, as far as the building in the picture that she had shown earlier, you seen the little cabinets that that is uh in the back corner of the rideway or lot. Typically, those are built in rightways out by the roadways. So, when you're driving down the road and you see these little boxes on the roads, that's what other telecom companies are doing. And then they're putting those all over the area. This one structure that we're putting in here is it's I think it's 12 by 30 foot. It is a hurricane proof building. Uh good example of why you would do that is uh like Sullivan, Indiana got hit with a tornado. We were the only internet provider there out of four companies that could keep FEMA with fiber because everyone else is on poles. Our fiber is completely underground. we spend the money to put these in instead of having them all over your town in the rightway where they can get hit by cars or storms or anything like that. This building is about a quarter million dollars uh to to protect our fiber. So, uh we're we are tucking it all the way toward the back. Uh we've really already cleaned a lot of this lot up. It was very overgrown. Um we're going to work

to make it look real nice. We do have a storefront. Uh we just closed on a lease. We're out at uh out on 36. We're we're leasing an office space that'll also kind of serve as a little warehouse for small parts to come to the homes and install routers, things like that. So, uh that this is the only use we're wanting for this property. Um any questions you guys have, I'd love to answer. Before we get to questions, let's open the public hearing. Is anyone safe to speak? We do not. Would anyone like to speak now? With no one coming forward, we'll close public hearing.

Is this building that you're this pre-constructed building that you're bringing in are is this going to be considered a permanent location for this building? You could uh for us, as long as we're serving fiber, we would like to have it here. At the point that we if later down the road, fiber internet's not a thing. I can't predict that. Uh, and the town wanted us to get rid of it. It's It's as simple as uh uh putting it back on a truck. I mean, disassembling everything, getting it back on a truck. But this isn't just a temporary location until you get the other No, that's situation.

We We've actually already went through the process of getting a temporary for that little cabinet you seen out there in the corner. So that cabinet that's in the corner will service immediately while we're doing construction, but it doesn't have the capability to go very far. So this location and the reason we targeted it is because it's right in the middle of all of our build plans. It's kind of the crossroads of our mainline back feed. Um, and when we had acquired it, we were told by our broker it was zoned for that use. So or it wouldn't be here asking for this. Um, but that building will allow us to build like 20 miles both all directions and everyone still gets that great service. You're not worried about kids are home from school now my internet's slow because we're able to put that in there and and have a great service in the area.

Uh, do you have any perspective plans for the rest of that? I mean, this is almost an acre property with a no 350 square foot building on it.

If if you go out to the lot, the snow doesn't really do it justice. It kind of goes downhill back behind us and in those woods there's a lot of trees. I think we'll work with the the town on some permitting on some tree removal to get rid of some that may fall. Uh just to kind of clean the property up, but we have no plans for the rest of that parcel as of now. Um, that's not saying I'm not in front of you in four years asking for uh some kind of structure or something, but as of now, we're just wanting to find a spot to land that to make sure that the people that are already signing up can be covered. Is your intention um to pave the driveway and goes in there?

I think we have to I think we have to put asphalt to meet the the code. It's a pretty big pretty big expense and the parking lots are uh required. I you'll see whenever we get this building in, you may see a truck every month, one pickup truck pull up to the building just to go in. Um, and just in case there's going to be a question about it, there's it's just like walking around the outside of your house, unless the power's out, there's a generator inside of it, but it's it's just like your home generator, and it's actually quieter because it's insulated in there. U, you can walk around this, there's no noise. It's not like a lot of people get the fear of the Bitcoin mines and all the noise and stuff. It's this is just like walking into IT area in your office. Uh it's going to be just all IT equipment that's boosting our stuff. So,

is there any intent to use any part of the area for a layown area? No, sir.

No, we already we already have uh like I said, we we worked with the town to get a lot that the town owned. Uh that's where we're currently storing all of our reels and extra parts as they come in. Um as we're working to do restoration work behind us, fill in holes, grass seed, things like that. That's where we're storing that. We are looking for another lot to do that since we found out that we weren't going to be able to here. So is this area and the other area lot that you talked about the town's providing why do you not use that for your equipment that's being used for pulling cable instead of parking that equipment in people's yard and I'm talking about the one device that pulls cable underground which I see sitting in yards

drills which I believe well beyond the easement because I don't think the ement goes up to the house. Okay. Um to answer that I would just say that we are working with the town to understand and following beacons right away as well as documents. Um if there is an area concern I'm the person to get with on that and I'll make sure it's done right. Um I do lead the department that does all that research and uh all the engineering work. So u I would if you have any questions like that I'll make sure I leave my cards for you guys. But, uh, as far as being in that area there in the rideway, uh, where we're working, we have to have that drill to be able to send it underground. Okay.

And it should be restored. If it if you have trouble or you have a mess, I'll also take care of that and make sure that it's taken care of. So, the intent is to res basically to return the area to its previous condition or better. Okay. Um, that is 100% how we handle that. um after after all the installation's done because there's there's stuff you got to do. I understand that. And I would also like to say that it's the middle of winter and the the dirt sticks out really bad whenever you're working. So it even looks worse when it's white snow and brown dirt on the ground. We'll we'll work to uh fix that.

And I want to say thank you for adding that. It doesn't really pertain to what we're talking about here, so I took us off on tangent. I apologize, but thank you for adding that. Yeah. Um, and I think you answered my question about the variance. Okay. I think you've already hinted at this, but you said you were from Teroot. I'm assuming this is the same joint that's the internet provider in the southwest quadrant of the state.

We're we're not. So, we're from We go to Teroot. Then, if you know where Vincens is, we don't go that far south. Okay. We go just past Sullivan County and just right at the edge of uh of Knox County and then we run north all the way up to uh Oxford which is above Williamsport. We go east. Well, now here we were we just built out all of uh Park County and was going to just keep working our way to the east here. We have uh another company we own that is joint for the last four years and that pretty much does the same big huge uh ring in Illinois. So, and this this structure it's it's really small. This is not anyone's designated work site. It would be more like a location where something breaks and a couple vans are going to show up to fix it. That's

Yes, sir. That's the extent of the traffic in and out of there. Yeah. Um it it should just be if if a one of our boards go bad, a guy brings a board, puts a board in. Um I mean it there's not going to be anyone working out there daily except during the installation. You I I tell you that because I don't want you to hear me say you might see a truck and all a sudden there's three pickups. Well, they're all in there building the racks, putting things together. Then it's a unmanned building. Is there an intent to add more landscaping to the front of the property that borders Avon Avenue?

Yeah, we we will uh uh do what it takes to meet the code and try to make it look good for for the area through there. Like I said, I don't think you're I think if you went through there now and there's no stow, you'll see we've already improved what it looked like on the front and we're working with the town to get permits to remove some more trees along the front that are uh there's a bunch laying over kind of in the ditch and things like that. So,

so the one thing that and I'll just offer this now while we're having discussion here is that the criterion three on the practical difficulty and again it's it's kind of like what we had talked about in the previous case. like seems to be a preference, not really a practical difficulty. The property allows for the property size. It's not like there's something unique that would prevent having a a house, a building that would meet comp the ordinance. So, that's where I'm going to have a hard time with understanding how this is a practical difficulty on this. I'm just not seeing that.

I I can uh I can respect that. uh the option the alternative option is for us to put them in the rideway and that's not what we we want to try to tuck it away out of sight and be able to provide a better signal but like I said with that little cabinet we have back there that are typical in the rideway you would have those like every mile every two miles and uh I mean they're they're very small fraction of the price but it's just that's why you see those is because it's cheaper to do that it's easier to do that and this would allow you to uh keep your rideway uncluttered. I mean, we've we've tried to over the last 10 years adapt to where when you see people come through, they put posts out in your yard by their hand holes. We we've tried to put everything inside those handholes. We have very little footprint and that's kind of what keeps us uh above the others is what I'd like to say.

Thank you.

Yes, sir. I'm um persuaded by the fact that as we're discovering with our new UDO that sometimes there are pockets where that where we did not consider and I'm sure 10 especially anything having to do with technology in 10 years who knows what's going to be out there that we had no idea of contemplating. Um, I don't see this as being um the practical difficulty. I understand Paul's position, but I also think that um it's it's a it it's not even a gray area. It's just a a blank space. And um asking them to double the size of that just to meet the ordinance because the ordinance says we should do this when the ordinance didn't anticipate this type of building is um not thinking in terms of what's best for the town or what's best. It's it's just this is what the ordinance says, therefore we have to stick to it. And as I often say, there's a reason we have a variance and a waiver process so that we come out with a good solution for everybody. And I I am inclined to think that this to agree with staff that this is something we should approve.

I agree with I agree with Paul that this is a little bit of a weirdo weirdo situation. However, I think staff correctly points out that hey, there's no there's no primary building. This would be the accessory building to it. Um, so it it does create kind of a weird thing and the door is open for this site to be I'll say fully developed later. I mean, it's like this is this is like phase one with the accessory use and then maybe in the future it develops into something something else. Maybe it doesn't, maybe it stays the same. And actually staying the same is pretty nice. You know, this this lot is located in a transitional area between the the commercial and the residential uses. uh from that standpoint with respect to other criteria you know concerning you know travel safety general welfare property values things like that it it's all a plus but I think in terms of practical difficulty I I guess I'm looking at as an accessory use without a primary use that could be determined in the future so it's it's kind of a stretch but

the other thing I I I see too is and I'm I'm extremely familiar with that stretch of road and I actually would prefer to see something like this than another commercial building across from Moody's where that road curves and there's already a lot of congestion and I'm kind of happy with the idea that there might be somebody out there once a month. Yeah, I was just going to add um regardless of what I just said because I live in that neighborhood right there and it it seems like a good use of that property because you describe probably didn't do justice to the characteristic of the land. I mean falls away pretty much right behind that cabinet uh down to the creek back there. So to have something that's not high traffic um on the curve going into that curve or coming out of that curve, it it does fit that kind of the the characteristic of a lot that being used but not being used a lot.

And I like the idea that should you vacate the property, it can be removed and it's not going to interfere with future uh how we would want to see that land in the future. The footprint is small and can be easily accommodated. So yeah, it and it would be moved if it ever stopped being used because they're so valuable in the telecom business that you wait for those. So we pre-order them and wait and wait and wait. So it'll definitely be resold and moved out of there.

Anything else? If not, we'll entertain a motion. Oh, go ahead. Do you have a a start date or a timeline yet or

Well, I I was hoping I was made aware I was made aware I was made aware today that it's probably going to be pushed back to April before we can do the construction with this development plans and everything else, which is a little uh like a little longer than we thought. So, there's going to be some delays on some customers up the line. Um that cabinet will serve most of the area around it and probably down County Road 100 a little, but uh if we try to expand much further, we're we're not selling a service we want to sell. We're um kind of relying on being able to boost that up with this building. So yeah, so as quick as possible, would you mind?

I'd like to make a motion. Uh, I move that we approve variance 26-2 joint minimum principal building size a variance of development standards to allow for a 336q ft principal building minimum 750 square ft required because it will meet all the requirements for variance of development standards under state law subject to the approved findings of fact and subject to the condition listed in the staff report. I second a

motion by Mrs. Inman and a second by Mrs. Ransburg. Any discussion? I'm sorry. And to clarify, your motion did have the back end in it and that there's not going to be any outside storage. Oh, no. I didn't say that. Okay. um with the caveat that there will not be any outside storage. Yeah. Mrs. Ransburg, are you okay with that amended motion? Um I am, but it look I see some discussion happening over here with smarter people than me.

Okay, I'm fine with it. Yes, I I second the amended motion. Okay, we have a motion, a second. Any discussion? Roll call vote, please. Genberger, four. Enman, Ransburg, four. Tachelor, four. Turner, four.

Go ahead. Thank you. Yeah, I'm gonna leave here. I'll make sure. Thank you.

Next item is BCA training.

That's why they have on demand. I demand to watch my own TV. You can pull it up on the water on YouTube.

I'll strive to be a little bit more concise than Dan sometimes can be. Um, but um hopefully he doesn't watch this back, but all right. So, for your yearly training, um we're going to do it a little bit differently this year than we usually do it. U most of you are pretty old hat with most of this. So, my goal today is to start with some points of emphasis. Um some things to drill down on um like findings of fact, variance of use, those sorts of things. Um then just lightly touch on, you know, the different kind of cases you may be hearing. Um that's the part you guys are pretty familiar with. and then uh end with a couple case updates from this last year. And if you have any questions throughout, just flag me down and um I'll answer them. All right. So, if you guys will turn to page two, we have a 2026 points of emphasis. So, the thing I want to start with first is findings of fact. Um we harp on these quite a bit and so we just wanted to kind of lay out um not only what the law says about findings of fact but um also provide an example of some compliance uh findings of fact. So um finding facts are important because the law requires you to make them um it's one of your primary roles um and also to make specific findings of fact. Um so if you look at that number a that Riverside Meadows case it's a relatively new case. I guess it's 9 years old, but this is when we got the direction from the courts that our findings of fact need to be specific. And when I say specific, I mean if you were to have your case appealed um when the court reviews it, they need to know why you made the decision that you made. Um so oftentimes other BCAS will kind of have a general discussion and then they'll just move to approve and looking back on it, you may have no idea why they ever reached that conclusion. And that's what we're trying to avoid here is if a court were to go back in time

and look at the record, would they know why you reached the conclusion that you did? Um, and the way in which they do that is by looking at your findings. So, preferably, um, when you make your findings, it's instead of saying I mo I move to approve, it's I move to approve because um, so that because is what we'd like to see. Um, or in this in your discussions, you know, and I'm looking at this criterion, I find that it's not met because of this. Um, it's really that's that conjunction that we're looking for. Um, because that makes it very clear that you're not only focusing on that criteria and that factor, but you're saying that you think it is or is not met um because of whatever facts have been presented to you. For the uh Carlton case, this is a pretty old case, but it's pretty seinal. It's just saying that merely restating the factors found in the ordinance is not specific enough because again restating the law doesn't really say anything about the facts that were pres presented to you either by the um petitioner or by the any by staff or by anybody who comes up to this podium um on behalf of the public. And so when we um make our findings, we'd like to see something in addition to just saying these factors are met because they meet the ordinance. That's again doesn't really if a court were to review that they wouldn't really know what facts related to each factor in the case. And that's all to say if if one of your decisions were appealed um the court would look at your entire record. They would look at you know the board discussion. They would look at the staff report. They'd look at everything that was said at this podium. Um but the easiest way to do it is in your motion to go ahead and say I think that these factors are met because of these reasons. And so we've included here an example um of a compliant set of factors for a really simple setback um for a two twoft setback. But essentially you can see here it would say public health, safety and welfare. It's not injurious because the land of um to the rear of the subject property

is undeveloped woods and it wouldn't affect neighboring properties. So that would be an example of that reasoning the facts that were presented before you. you're kind of linking those to that factor. And so whether you say that during your deliberations or during your motion, that's kind of how you would make a finding a fact. Um, and this is also to remind you, it's important to just ask uh questions about the factors. It's perfectly normal to be curious about other things in the case, and it's okay to ask questions about those. Um, but we'd like to have most of the deliberation center around the factors. The best way to do that is to write down questions that relate specifically to each of them. So just list them all out depending on how many factors there are and say okay what questions do I have that relate to each of these factors. Um and then again state why the facts that were presented to you at the hearing um do or do not support those factors. All right. Do you guys have any questions about findings of fact? All right. So the next thing I want to hearken down on a little bit is variance of use. Um, I would say that variance of use and variant variance of development standards are pretty frequent um, cases that you guys hear. Um, and sometimes it can become easy to mix them up. But as you guys well know, we're always paying attention to that in addition to the other factors that pract practical difficulties versus unnecessary hardship um, standard. So um unlike practical difficulty which you guys experienced tonight which is what what is applied to um development standard variances that is a much lower standard than unnecessary hardship. Unnecessary hardship is a really hard standard to meet. It's much it's the strictest standard that can be applied. Um so kind of deciding when or not that has been met um can be difficult sometimes. So, just as as you guys know, variance of use is whenever someone's deviating from the use table. Um, and they're asking you as the board of zoning appeals for a variance of use rather than going through uh the full intensive reszone process. I mean, theoretically, if you want to use your

property differently than you're able to, you either go through a full resone before the plan commission or you come to you guys and ask for a variance of use. um we see variance of use more frequently when it's a smaller site or potentially the development is a massive isn't a massive de development that would require a full reszone. Um but just because it's coming before you or it is a little bit less intensive than a full resone, it doesn't mean that it's an easy standard to meet. So um you guys have those factors before you, but we're still looking at public health, safety, morals, general welfare. We're still looking at the effect on adjacent properties. Um, but we're also looking at whether the need for the variance arises from from something peculiar to the property. I think that's an important one to pay attention to because it also loops in with the next factor which is the stripped act application of the UDO will constitute an unnecessary hardship if applied to the property. And then the last one is um the compliance with the comprehensive plan. So if you look at um C on page three. Yeah. Oh, sorry. Well, I just you made you said something that made me want to ask can is a uh a valid reason to deny a variance of use um be that I believe this needs to go to the plan commission for a reasonzone rather than asking for varance of use.

Um I think it potentially could be. I mean as a reminder you are allowed to find that every single one of the factors is met and still believe that it should be denied. Um, but again, if they're coming before you and putting on a full petition, um, I would recommend you make that decision at that time whether you think that variance of use is good for the community or not, even if all of those factors are met. Um, but usually when they're going to the plan commission for a full resone, um, I mean, that's when you want to see them go through a development review plan, those sorts of things. Variance of use would be something a lot less strict. Um, so I do think that you could tie that into one of your reasonings as to why you would deny. Um, but for the most part, I would rather you be focusing on the factors. And generally that wouldn't relate to one of the factors when you're um when if petitions come and been filed for you before you for a variance of use. One of the factors isn't whether or not it could theoretically be filed as a um reason.

Okay.

I have a question on paper gravel case. So this says the courts have interpreted this statement without a useful interpretation statutoian case law interpretation of reasonable but then underneath it says economic loss is not enough. So does economic loss mean less than ideal profit, less than ideal uh business operations or does it mean we can't operate this if if we try and do it under the ordinances without hearings? Um we would lose money. I'm just trying to to y

to mesh paper with this statement the economic cost.

Absolutely. and and let me give a primer on that case because that was our big 2025 case and then I'll answer your question. Um so the beaver gravel case came to us this year which um pretty much reiterated what we knew about variance of use and especially unnecessary hardship. This is kind of a unique case. Um, so in this case, Beaver Gravel Corporation, um, they were a company that owned an agricultural piece of property. Um, and by the name of their corporation, they wanted to mine gravel. And, um, what you'll find interesting about this, this is out of the city of Noblesville. Um, you don't see the city of Noblesville in the title of the case, which is not very common for cases involving board of zoning appeals. Um, but in this case, the board of zoning appeals approved a variance of use. Um, and I'll get a little bit more in depth of it later, but essentially what the BZA was saying is that, you know, they there was an unnecessary hardship because mining wasn't permitted there, which again, it wouldn't be permitted there. You wouldn't be asking for a variance of use. Um, the area adjacent to it was already being used for mining. So, they thought that, you know, that site should also be used for mining. Um, poor roads around it made residential development unlikely and that without a variance of use, minerals could not be extracted from that property. So that's what the BCA used as their support for their unnecessary hardship. That's what they discussed at their um public hearing. Um a neighbor then sued um and said I don't think that they the BCA made the correct finding when it came to unnecessary hardship and wanted the court to review specifically that part of it. And the court actually agreed with the neighbor and said the BCA got this one wrong. That the things that I just mentioned to you wasn't enough to support an unnecessary hardship. They said the facts that were presented, you know, that it wasn't a permitted use, that's not an unnecessary hardship. That they couldn't mine there, that's not an unnecessary hardship. That roads didn't support residential development, that's not unnecessary hardship because the property can still

be used as agricultural property. um it was used as agricultural before, it can continue to be used as agricultural now. And so that's when we say it's a very strict standard because all the facts taken together, you're saying that you do not believe that the property can be put to any kind of use that would have a reasonable return. And in this case, they said it can have a reasonable return. It can have agricultural return. It may not have that you're wanting.

And that's exactly the key. So, um, oftentimes you're going to have petitioners come before you and say, "I can't make the amount of money I want to make, or I can't make money off of this property the way that I want to make it." That's not the standard. The standard is they there's something so peculiar about this property that if they had to comply with your ordinance, they would pretty much have very little to no return off of that property. Comply with ordinance, there's no way this property can basically give a return.

Yes. And and I'll remind you again of that Udica case that we talked about in previous years where the fire department purchased um a residential property to be used as a substation for the fire department and then the town came in and said, "Hey, you shouldn't have that there. You need to seek a variance of use." And they said, "Well, we can't operate as a substation unless we get a variance of use." So, they're pretty much saying, "Your ordinance doesn't allow us to use it the way that we want to use it." But all that entire time they could still be used as a real estate as a residential property as whether it's you live there. You don't make any money when you live somewhere, but it can still be used that way or you could make it a rental property if that was permitted. Um so that's it's a very strict standard in that most property can be used and it can have some sort of return. Um it just is often not going to be the return that the petitioner wants or they wouldn't be standing there before you.

Which takes us to the economic loss is not enough. It has to be there can be no economic gain of any kind if we adhere to the standards. It doesn't have to be necessar I mean that's you have discretion in that regard. You always have discretion in that regard. But um for example and the gravel case I think is really informative in that um it could have they would have pretty minimal return on that agricultural property but it it would be significantly less than if they were able to mine it. Um but there was still some return there. or agriculture still has a large amount of return depending on where the property is located.

So, how do we It It seems like we've had cases where you get petitioners like I want to do this on this property. Um, and it may be variance of use, variance of development standards, which I don't know if there's a difference there, but

um, and it seems like I'm not sure now over time I've heard different guidance on this, like well that's what you want to do, but maybe what you want to do needs to be done somewhere else. And but can we deny that specifically? Like that use isn't permitted. We don't agree with that. So therefore, it's going to be denied. If you want to do that, find a property that's going to allow that. And I I think that gets into too what staff looks at and what, you know, I consider is like they're looking I think what I see the history and what's being developed and everything, but it's like that just doesn't seem to be right there. So, how do you state that to where you look for you don't come back and go, "Whoa, whoa, whoa. Don't say it that way."

No, that's perfect. And that that's that's the wonderful thing about variance of use is I think even if you've met all those it factors I don't think this is good for the town because of X I don't think this is the right site for it. I mean that is that's your discretion right there. Um so you can state that even if it doesn't relate to the unnecessary hardship factor. I mean if you don't think that that development in that place is good for the town you have the discretion to say I'm denying it for that reason as long as you state what those reasons are. If we get into that and and I'm taking a position that's opposite of what staff recommends, should I be asking staff for more detail then to explain it to to help understand that to get one to get it on the record um if nothing else but because maybe I'm missing something. Is that a a good approach to doing that to make sure that if somebody's listening at this for future litigation, it's all out there on record?

Certainly. Yes. every even if you make that decision that you think all the factors have been met and you decide to go a different direction, you still need to have facts that support your decision. Um so anything that's presented at the hearing, um you would want to just ask questions of staff, ask further questions of the petitioner or the public if they're here. Um and then you could say, I heard this today from these people and based on what I've heard today, I believe that this is good or bad for the town and therefore I'm deciding to approve or not approve. Okay. Thank you. Well, this could also

this could also be applied to the argument for approving a variance because we could say, yeah, the and especially since we've got so many pockets, you know, we're not dealing with lots and lots of open land that we can, you know, I I you know, perhaps we can say doesn't exactly meet this, but it's good for the town and it's a good fit And so the variance works correct. It doesn't mean it I'm sorry. Did you say if it doesn't necessarily meet the findings?

Well, if I'm well like so in we just had the the why are we putting this little tiny building on this, you know, thing. Technically, it doesn't meet the requirement, but the variance it works for the town and a little bit different here. So you can find that all the factors are met and still deny. But in order to approve, you need to find that the factors were met. Okay? Because you have to be looking at all those and find that they are met. Um and however you choose to fashion. I know that seems a little bit odd, but you can't say it's not met none of these, but I just really want this project. That means there's no facts supporting any of the factors.

How do you say it met all the factors, but I'm going to move to deny the variance? That that's where I get into and I think at one time Dan maybe is in the plan commission said what are you basing your denial on because you're you're moving to reject the staff recommendation. Do we have to state I'm denying it because of even though it met all the factors?

I mean yeah you would say I still I find that it's met all I mean usually you're going to find a factor that it doesn't meet. I don't think I've ever seen you guys actually find all the factors are met and get to this point. But if you do get to this point and you find that all the factors are met, you could say, I don't think it substantially interferes with the comprehensive plan, but I don't think it matches these three ideas that are implemented in the comprehensive plan. So in that way, you could say, I think it's it complies with the comp plan. It doesn't substantially interfere with it, but I don't think that it's fulfilling the vision of the comprehensive plan with respect to this area of town. That would be an example where you're hearkening back to the comprehensive plan, but still finding that you believe that factor probably could be met. Um, but you would still have a reason. It wouldn't just be I just don't like the petitioner. I don't like um this particular development. You know, you'd have to have a legitimate reason. And usually it would relate to kind of one of the factors. Um, you could still find that it meets the factor, but there's still something out there that relates to that that may sway you one way or another. Okay. So, I think that mostly covers unnecessary hardship. Um, so yeah, this this beaver gravel case, it's um there's a little bit more of a description in the back of your materials um on page 24 if you want to read through that um at your own time. Um but just wanted to point that out to you because it was uh really helpful to um BCAAs across the board and to us attorneys kind of reminding us, yeah, all these cases that are in place for unnecessary hardship, we're letting them stand um and that courts will actually go through that process of applying that standard.

Why didn't the neighbors sue the board? Why did they sue the gravel? um they appealed the decision and the BCA at that point didn't have a stake in it and so they were appealing the decision and the um appel at that time the one who wanted to defend the decision was not the BCA it was the gravel company. Yeah. Kind of unusual though.

Usually they just sue the BCA. Yeah. Okay. The next one I want to touch on is special exceptions. You guys get a lot of these especially with regards to drive-throughs it feels like. Um but um I just want to go through them because I feel like we train so hard on the variance of use that we don't always talk about special exceptions and I just wanted to touch on these um and kind of go through the exercise of making findings if you were to have a special exception before you. Um so as you guys know special exceptions this is anything that's listed on the use table as a special exception. Um it's anything that the town council has decided is a type of use that requires your scrutiny prior to coming into town. Um there's 66 of them that you um could potentially see here in town and all of those are in a chart later on in your materials. So um just quickly go through the criteria with you. It has to be listed as an exception or as a special exception. It has to not be detrimental public health, safety, welfare. Um you're going to be looking at the impact on property values that it not be injurious to adjacent properties. On page four, you're looking at whether or not it's adequ adequately served by essential public facilities, you know, fire, police, roads, highways, those sorts of things. Um, you're looking at whether it has any negative community impacts requiring, you know, excessive or additional public expense. Uh, easy one, have they been denied? If so, have they waited a year? And then you also have supplemental considerations that you can consider which is looking primarily at the UDO whether the remainder of the site would be compatible with the UDO and compatibility with adjacent properties. Again, you're looking at adequate provision of public services. This is where you're getting into traffic which seems to be a common one. Um and any kind of amenities that are being provided in additional to the um in addition to the use and then you're again going back to your comprehensive plan. Um, so at the bottom of page four, as you guys know, and you guys say usually at the beginning of your meetings, that this may be a ministerial

decision and that you cannot um you don't have discretion here. Um, but that doesn't mean that you have to grant every single special exception that comes in the door before you even hear the case. Um, if you find that all the factors have been met, you must grant. That's the difference between the variances. But that doesn't mean that you have to still find that each of those factors were met. Um and sometimes we kind of focus more on one than the other depending on the type of case. But it is important um to there have been a lot of cases where BCAS have said hey I don't think I don't think the drainage meets the code in this way and so therefore we're denying. So it's a lot like on the plan commission side like on a DPR. Um there are a lot of technical things that go into a special exception. That's why it's requiring additional scrutiny. So it is important to make sure that all of these factors have been u met and not just assuming because it's a ministerial decision. you know, I I don't have any leeway here in denying you do if you find that any of them have not been met. Um, so I do want to go through kind of an example um on page five of going through um applying this the facts to um the factors. So for example um a proposed asphalt plant comes to town in an agricultural district in Avon. So you guys this would be something new here. um asphalt plant is listed as a special exception in your um UDO. So you know first you would see say yes it has been listed and then you would go to is it injurious to public health safety and welfare general welfare. So since asphalt plants would be new and unless you have some in-depth knowledge of asphalt plants this is where you'd be wanting the petitioner to tell you things about asphalt plants. How do they affect you know air quality? How they affect water quality? how do they um what kind of fire prevention would be necessary for this type of development? So, those are the kind of questions you want to be focusing on when you're talking about health um safety, public general public and general welfare um impact on property values. So, you would be wanting the petitioner to

present evidence to you as to property values, not just saying, you know, we've had these all over the state and we haven't really had many complaints. You know, they may want you may want them to actually present evidence on this fact. you know have after asphalt plants go in have property values been affected and also the neighbors may come in who are monstrate and they may also present evidence as to that fact as well. So, in this example, it would be important for them to present evidence to you um that you could base your decision on adequate services. Um this is where you're asking, you know, who's coming to the site, what kind of vehicles are coming to the site, how frequently, um those sorts of things. Um for negative uh community impacts, again, you're going to want to say, you know, is this going to really damage the natural or scenic environment? Um is this going to, you know, result in the destruction of anything historical in the town? those sorts of things you're going to want to be asking about. Um, and then one year is pretty simple, the one-year denial period. And then your supplemental considerations, you take them if they're favorable to the applicant. Um, but you'd be looking at, you know, is this compatible with the area? Um, just because it's a special exception. Asphalt plant may not be compatible on one agricultural property while it may be on others. So, you want to be looking at compatibility um to the area. And then you're also going to be looking at the method in which um the special exception makes adequate provision for public services. So, you know, are we going to have a lot of um traffic? Are we going to have a lot of u light pollution, air pollution, those sorts of things? How's it going to look from the road? That's when you can be asking questions about fencing they'll be providing or landscaping. And then lastly, looking at the comprehensive plan. And this is just kind of to remind you all about your new comprehensive plan. It's a large document. It takes a long time to get through, but it has a lot of great material as to what the future land use of that property would be. So, it it talks about agricultural districts. This is what we want to see in them, and you would want the petitioner to present to you as to why they think an asphalt plant would further the directives in

the comprehensive plan as they relate to um agricultural districts. So, this is kind of just an example of how you'd go through a special exception, go through each of the factors, and kind of ask the petitioner to present evidence to you as to each of these. You guys have any questions about that? All right. So, just a quick few more things. I'm not going to go through um all of the stuff in the inside. This is stuff we usually give to you every year. Um it's each type of case you're going to hear which is administrative appeal which is a reminder is um when somebody who's agrieved by a decision of your staff can appeal that decision to you. Um so if they ever disagree with a determination that your staff makes they'll ask you to have a hearing and review those decisions. Um we talked about variance of use variance of development standards and then you'll have those special exceptions. If you'll jump back to page 17 with me, um just the most important thing here to remind you is about conflicts of interest. Um I wouldn't be a good lawyer if I didn't remind you of this every year. Um in the event that you believe you cannot be objective about a case or in the event that you have a direct or indirect pecunary interest in the outcome of a case, you should recuse yourself. Um if it's financial, it's just automatic. If you have questions, you can always talk to us or staff about it. But if you feel as though, you know, you like someone too much or you don't like someone too much, you can't be objective, then we'll just ask you to recuse yourself from that case. It's not just about who you know, because you'll probably know a lot of people in Avon. It's just whether or not you think you could still hear the case and reach a decision. All right. And the last thing I'm going to touch on is on page 24. This is more of a corrective matter. Um, we got a new case this year that worked its way through the courts for quite a period of time. So, last year I came before you and talked about a case which was Monroe

County, BCA, Bedford Recycling, um, my hometown pretty much. So, in this case, the BZA was presented with a use variance. Um, staff had prepared a staff report providing the definition of one of the uses. After the hearing, the board's attorney met with staff and said, "I think you used the wrong definition. You should have been using this one and you presented the board with this other definition from the UDO." And so what they did is they reheard that case entirely um and reached a different conclusion. So they essentially revoked a prior approval because of and the basis was um because it was a legally flawed um determination. and they were using the wrong law, the wrong part of the UDO when they reached that conclusion. That got appealed to the court of appeals. The court of appeals that's said originally that's fine. Um if you can revoke a prior approval if the prior decision was legally flawed, this continued on. So that's why I told you last year. Um this went on to the Supreme Court and the Supreme Court went the other direction. They said, "No, the Board of Zoning Appeals does not have the authority to revoke its own approvals." um that could be potentially something in the future if the legislature decides to do so, but that is not one of your powers. Um so in the event that you um have an approval that will not ever be coming back before you um for you to revoke that if it's based on bad law essentially. This is a little different though because I know recently we had a situation of like uh improper notice. That's something a little different. I just wanted to point that out so that's not confusing. um situations where there's improper notice, those decisions are abnicio. So from the beginning, before you even heard that case, it was void because it was improper. The legal procedure to get to the hearing was improper. That's a little different than what I'm talking about in this case. In this case, they just misapplied law. So that's like if I told you the Supreme Court said yes about this and that was wrong and you

based your decision on that, you couldn't then go back around and say, "Oh, Anna told me the wrong thing. I want to change my mind." Procedural error versus legal error. Exactly. Yeah, exactly. So, that's what this is talking about here. And then that beaver gravel case there. There's a little bit more of an explanation if you wanted to read it about the BCA's findings. But, um, other than that, that's everything that I have for you guys tonight. Um, I recommend you go through all these materials. Um, and then let us know, Dan, or if you have any questions. Is there anything tonight that I can answer for you before we wrap up? Can I add one thing?

Yes, of course. This came up at one of our cases this year um in that granting of a variance is to the property and not to the petitioner that's filing. So if you know it comes before you and it's Joe's chicken shack and then they leave and another chicken place wants to come in that they can utilize that variance. It doesn't go away because Joe's left. So just make sure it's clear that it's you're granting it to the property and it stays with the property and then future property owners can utilize that same variance.

Do we have any recourse there? Because some I've seen like we've approved some uh I don't know if it land commission or BCA on property south of the

Yeah. And then it was a um supposed to be a sewing business. It's that property south of the bank on Avon Avenue up at 100 North and or the Indian restaurant and grocery that was supposed to be beside Moody's Maids and it's not there and looks like property's up for sale. So we make an approval that people seek before they invest in doing development but then they don't go forward on the development. Now that's already been reszoned or variance. Um, is there no way to tie it to a specific petitioner? So, if that petitioner doesn't do it, then it goes away and reverts to the original condition.

Generally, they run with the land. So, the variance of you're talking about how do you want the property to be used. You're not asking how do you want this petitioner to use that property. Um, so when that's why it's so important to be really careful with these is that you're saying, "I believe that it's okay to use this residential property as commercial. Um, you're not really hearkening down on, you know, the particular petitioner." So, if it's one chicken restaurant or another, you're saying, "I think this property would function well as a commercial use." You're not really saying commercial use so long as it's a chicken restaurant with a drive-thru um that's open these hours of the day. So if we are looking to grant a variance of use, can we do like uh the plant commission when they do the reszone and say we'll grant the variance of use for these specific uses as opposed to well we'll approve this variance of use. So that just allows that along with every other use. But if we want to make it a little more constrictive, can we be that prescriptive on how we put a put a condition on the variance of use such like that?

Certainly. Yeah. So that would be kind of like which in your experience with the plan commission they're saying we're okay with commercial but we don't want these 16 things that fall under commercial. You can do that usually with you can do the same thing with variance of use in the sense that you're saying I'm okay with you using your residential property as commercial as long as it's this type of use um this type of commercial use since obviously not all commercial uses are the same. Typically use variances come through you with a use. Yeah. They want to open a dry cleaning business or something like that. It's not the whole category. If it's the whole category, we're going to tell them to resone. We We'll tell them not even to file. Good point.

I mean, they could come if we want all C2 uses and we we just say no, go get a resone and there's no reason. And if we really if we were that hesitant about it being used, granting the use variance because of what might happen in the future, then we shouldn't grant the use variance at all. I mean, this is for development standards, too. If they get for a building footprint and we grant them a setback variance and they never build it, but somebody else comes in, they can utilize that variance. If they can't make their site plan work with the site plan that was previously proposed or you said it's subject to a site plan, then we have some teeth. Yeah.

And often you guys do put conditions like substantially like tonight like substantially compliant with the site plan. That's a little different for development standards. Um, but that in that regard that would run with the land, but unless another petitioner is going to come in and build that site plan, right? Which presumably you'd be okay with because that's what you approved. That's kind of how we do it, those site plan commitments is so that if they somebody else comes in and says they want to do the same thing, but we want to build our building, then we're like, sorry, you got to go back.

And that actually does get back to the question you asked earlier, Paul, when you said, you know, is should I Sometimes we just say this should be a a plan commission matter. This should be a full resone. I mean, Linda just told you that they'll they'll pull that early. They're not going to let it get to you if they believe it should be a full resone. So, all righty. Well, thank you guys. I appreciate it. I I do have one more question. Oh, yeah. Certainly. Do you think the Canadian curler double touched the stone? I missed because that is a huge that is huge right now. Everyone's like I have a I'm on a legal Facebook page and we are all like are you following the girl?

I'm gonna I'm gonna turn the microphone off.

Anything else for good cause? We are ajourned.