Board of Zoning Appeals - Regular Meeting

Okay, it's 11 o'clock. We'll get this meeting started. Would you please rise and we'll flaggy for all. Okay, welcome everybody to the BCA meeting. My name is Steve Canfield. I'm the chairman. Um, I guess we're ready for the minutes. Have we got Have you looked at the minutes, guys? Any changes, corrections? I'd like to make a motion to approve the minutes. I'll second that. Okay. All in favor?

I. Okay, that's taken care of. Okay. Now, Mark, why are we here? What's our first order of business?

Okay, your first case today is ZV2509. Uh the petitioner is Jason Wagner and the location is 3071 North 350 East. I do have it up on the map here. Uh the type case is the variance of development standard setbacks and your your case is discretionary. Uh today you'll conduct a public hearing to consider a variance from the development standards of chapter 159. Specifically, the petitioner requests variance from the bulk standard setbacks. The petitioner requests a variance to build an accessory building on a vacant lot which is adjacent to his single family dwelling lot. Uh notice of the hearing was published on July 28th and to the property owners prior to July July 28th. Um no health department review was required. Um the county reviewed storm water compliance for the property uh in the variance and the drainage via the west and you can see the contours uh and the reason for the variance is because of the contours of the property and natural grade and the impervious toll will be 4%. A flood plane was reviewed on property and that is not a special flood hazard area. Access is from 350 east and the property is zoned residential. Uh the property will need not need an address because it will be joined to the property to the south owned by Mr. Wagner and it is served by well and septic. The owner is requesting reduction from 60 foot to 30 feet. U staff does recommend approval of the variance with a condition and normal condition building permit approval required from McGomery County.

Okay. Is there someone is the petitioner here? Could you come forward and just tell us what you want to do and why you need the change? Yes, we're building I'm wanting to put a pull barn in for storage for a camper and tractor and vehicles and such. The lot line I don't have enough room because of the drop off on the back edge of the property. It's about a 40 foot drop. I I put on there for a 30 foot from the road. I really think it's going to be around 40 feet, but I just wanted to make sure to put a little bit of wiggle room in there. Um, and that's it.

Guess we'll open this up. Thank you, sir. Thank you. I think we'll open this up for public hearing. 113. Anybody want to make any comments, statements? Okay, I guess we'll close it. Um, is there any other I'd like to know where is this in the county? Sure. So this is 300 east.

So is this over near Garfield? Okay. State 47. Okay. Is this near the Carl farms down in that area? Okay. Okay. Okay. Okay. Yeah. I used to live there.

No, we didn't have any outside comments. Initially, u the previous owner had filed for a permit for the location and Mr. Wagner has purchased that. Um the the previous owner was going to have the same issue with setback. So Mark, does the county have any plans to widen that road that you're aware of? No, they do not. It is not on the hill. Not very likely. It is not on the hip.

It does. The only thing I didn't uh I don't know the posted speed limit on that road and I don't have it in my data here. So I is the posted speed limit on that road.

Okay. I would just say for the board your five factors this case is uh fits into some of your uh criterion that as you know uh it does would not appear to be injurious to anyone around um or probably have have any effect on surrounding properties. Practical difficulty is a good example of a practical difficulty in that uh if uh the relief is not granted in order to to um build a barn this size would require substantial earth work and probably some retaining and a lot more expensive and that's that's kind of practical difficulty right there. Um and then the fifth criteria which we don't often see this is a perfect example of when u the the your factors say the need for the variance arises from some condition peculiar to the property. This is a perfect example of uh this may not be the exact location that Mr. Magnar wants. The the the terrain dictates much of the decision making and so this is a good example of a case for variance of your criteria.

I don't have anybody have any more questions. I'd entertain a motion.

Second. Okay. Motion in a second. All those in favor? I Okay. All right. You're good to go. Thank you. Okay, Mark. What's next on our agenda?

Sure. You're good to go. Okay. Case number two is ZV2510. Uh petitioner is Sasha Graham. The location is 7179 South Cendria Lane with Indiana. Type of case is variance of use. It's discretionary. Uh today you'll conduct a public hearing to consider a variance from use from chapter 159. Specifically, the petitioner to request variance from uses for a residentially zoned property. The petitioner requested variance of use to have a small business on a residentially zoned property. The small business fits inside the commercial classification. The property exists with a single family dwelling and accessory structure. The petitioner requests variance from the McGomery County zoning code for commercial business building on the property and the location is in country view estates subdivision which is south of 700 South and Clark Township. Uh notice was published on July 28th and to the adjoining land owners prior to July 28th.

Again they are requesting a variance to place a small business building on the property. The business building will house a dog grooming business with the expected excuse me expected daily client traffic of three to four per day. Uh county has reviewed the site for storm water compliance. Property was reviewed based on the size of property and the improvement plan for the site and it would be less than the 35% imperous ordinance requirement. Access to the property is via Sandria Lane, which is a privately owned road by the homeowners association. Uh the gravel private road is maintained by the owners of the subdivision. Sandria Lane is also a deadend road without a culde-sac. The property is zoned residential and the new addition to the property would be served by private well and septic. Uh staff recommends denial of the variance. The use and the value of the properties in the country estates would be impacted uh by the maintenance of the private gravel road that serves a subdivision and the variance does not follow the intent of the comp plan for subdivision areas. Yes. Now we're ready for the Anybody want to come up or the petitioner want to come up and tell us what you want to do? why you want to do it.

Um, so the plan is just to put a structure in next to our home uh for my dog grooming business. It's a pretty small operation, like three to four clients a day. Um, and it's one-on-one, so it's not everybody at once. It's appointment based. And, uh, we I do have the, uh, man who runs the homeowners association, we have already gone through that to get it passed to be able to have my business as far as the homeowners association bylaws. So, okay. So, they have approved. Yes. Yep. All right. Thank you. Thank you.

Uh do we have any uh anybody against this? Did we get some letters or Yeah. Oh, okay. That's right. Yes. Okay. Yeah. We'll open up a public hearing at 11:12. Anybody want to come up and make any comments? Okay. I guess we'll close the public hearing at 11:12. You say we do have three.

There's actually four. I sent one yesterday to you. So, you should have four letters and they are in your packet. Yeah, that's fine. Could you come up here? Come up here. Yeah. Okay.

So, you're actually just the first house. Well, who does who does maintain the right?

So potholes And the business is whatever.

Yeah. Okay. Any other questions? Just out of curiosity, I guess. different question if they ever sell their place or decide to change or whatever. How does that affect?

Okay, two different questions. The first one, no. when you have a use a use variance which is rare but when you have use variance you have to look at the facts of each particular case so it isn't really uh establishing precedent but if you look at the five factors that you have used variances are rare because it's very difficult to get them based on this criteria uh so it's you know you're if if BCA's could simply say is this a good idea whatever that's one thing but that's not what the law says the law says You have to look at these five factors. Whether it's injurious to anyone really, how it would affect fair market value. Is it consistent with the comprehensive plan? Uh and then is there some condition peculiar to the land? Those four you hear a lot about, but the one that's very difficult is undue hardship or unnecessary hardship. And just like in the last case on a variance of a development standard all the petitioner has to show is practical difficulty that really means in most cases that I have a topographical problem or it or or complying would cost me a lot of money. So in the in the whole use fairance, this is a whole different thing because the petitioner could go to the county commissioners and ask to reszone the land to commercial and if she were able to get that done, then she could she could do what she she could have a commercial business on her on her residential property. That'd be fine. Use variance though says that she has to show unnecessary hardship. And unnecessary hardship, as we've talked about in training, means that if she doesn't uh get the variance of use, she can't use her property. And the cases say, "No, you can continue to use your property for a residence." So, I think that's that's a really difficult task

when you have fairy use cases is how do we how do we get over that hurdle about unnecessary hardship? Because it's not practical difficulties. It's a higher standard than your your development standard variance cases you guys normally see. That's why use variances are granted much more seldom than development variances happen. You guys know this happen all the time. Use variances are much more difficult. So, but the law requires you guys to look at every every case differently and that's why you you don't have to really be focused about what happens next time we get one of these. If you can satisfy yourself that certain facts exist for this petition, then that's what you're supposed to do. Focus on these five factors and um it's a discretionary view, which means um that you need to look at those and make sure they're facts to support your decision. But you do have discretion even if the petitioner could show you all these all five factors were met. Still still kind of up to you. I always recommend that you follow the facts. You know, if if the petitioner can show those five, well, we better have a good reason to say no. But that that factor number three, unnecessary hardship, that's the one that makes these cases different from other variants that you see. Well, it would, but it would, but there's a there's a way to deal with that. And so you Yeah, you asked kind of two questions about that, too. One is does it stay with the land? It does. It does stay with the land. So, the next owner could have a commercial use there. You are allowed in the granting of a variance though to impose reasonable

conditions. And so you what you are allowed to do uh as a condition is you could approve it and say that this variance of use is granted but it only applies to uh dog grooming business on the property and nothing no other commercial use. So that if the petitioner sold the property and the next owner wanted to use it as a wood shop, we had a case like that once, that owner would have to come before you and ask to get approval for that change in business. So that's that's a good way to deal with that concern if you were to approve it to uh to instead of saying any commercial use would be okay. You could limit it to what the actual request is for. Uh again, just making sure that you're limiting the approval to uh what is being asked for and not opening up because commercial is broad. If you look at the use table about what's allowed in commercial, there's a lot of things the petitioner probably wouldn't want on that property, let alone let alone us. But that is a a really long uh use table. There's, you know, probably 30 uses there. So that that's the way to deal with that, John. If you were looking toward an approval is to condition that approval to exactly what is being asked for. That's a way to avoid un intended consequence.

Yeah. Michael Graham. Same address. That's um the homeowners association has it though to where it got passed that you have to have 75% vote to even have a business factor. So it's not like anyone can just say tomorrow we want to do this and come to you guys. It has to voted through the homeowners association even get passed. So like it would like if someone said they want to have a mechanic shop back there, they're going to have to go in front of the home owners association. Everyone's going to have to vote. So yes, please come up.

When I did go around to get approval for the homeowners association, something that was discussed with the other uh owners in the area was to um if we were going to admit admend the bylaws um was like you know like you had mentioned if somebody were to own the property in the future and they wanted to put a different business in there if there is any other differing businesses it would have to go back through the homeowners association to get approval. So if there is any change even with my own business as far as I know. So

thank you. Well, I want to ask too, if we do a vote to approve this, can we put a requirement on there that the road has to be maintained by these folks or can we do something like that or because that seems like that's and everybody that was against it, that seems to be a prime reason why they would like it or one of the reasons I guess this this is a private street owned by the owners of the subdivision. So, we can't put any requirements as far as the street goes. Okay. Just the use of this property. We don't own the property. We don't have jurisdiction. We don't maintain.

Yeah. If it were a public street, we could look at road impacts and we could require any petitioner to make improvements on a road or do something. But this is a private road, so it's just outside of our jurisdiction. Um, it's private road. So, if if this if this subdivision were to be brought to you now, the roads would have to be public. We we wouldn't have this issue uh this particular street issue. We wouldn't have it now under our under our zoning law, but it was uh done before the zoning ordinance. So, this is a a remnants a remnant of prior days where the county has no jurisdiction over that road. public road. Yes, we can do that.

Sounds like the HOA may be taking care of it, which is the good news. But yeah, it does. And then and it's good to know they have covenant restrictions, but we have no power over their covenants or restrictions.

Okay. Well, we have any other questions? Are we ready? The first iteration said practical difficulties and uh I noted pointed out to Mark that in our in our zoning ordinance that that very that is not practical difficulty. It is um and I'll just read read it but it it um it's it's hardship and that's just different different thing altogether and and again unnecessary hardship we talked about this in training but you know practical difficulties means it would be and it might cost me more money and it's not an easy threshold to get over, but it's kind of right here. Un unnecessary hardship is um is even higher and it its definition is it's got to be even more than difficult and money. It's got to u mean that the owners can't enjoy their property or get a reasonable uh return on their property. and um in within the cases involving what unnecessary hardship means and uh it it is the standard kind of review for variance of use in most jurisdictions. They they talk about how if if you know there's a case we talked about in in training and uh that arose in Hendricks County um where a fire department bought a house in a

subdivision and wanted to make a a Well, they called it a substation. Basically, a very small fire department and the uh the BCA said no and and the fire department appealed and the court said no, you can still use your house as a house. Um, you know, there's nothing wrong. You you want to add something to it. Um and again that's why I think your challenge here is to say well you know do we have unnecessary hardship or don't we and then when I take all these five factors together how does that make me you know which way does that go but that's a tough one because that's a very high standard now the others are a little easier in this particular case uh not injurious fair market value consistent with the comp plan um I I don't I haven't heard anything yet about any condition procedury, but I think that hardship one is difficult. The others are a little easier. But that hardship is really tough and and the reason it is such a high standard is because of the idea uh in the zoning law that uh variance of use is should be rare because of the expectation people have that the use is going to stay the same. We do allow changes. It's not like we never allow variance use, but it's it's not nearly the same thing because of this higher standard as the development standards variance that like the case you just had where you're saying 30 feet, 60 feet, setback, the threshold for that is much lower.

And I did highlight that entire line in number three, but the only two words that changed were unnecessary and hardship. So the rest I Yeah, I highlighted the whole thing, but it was only those two words that changed. So are you saying really this should have gone to the plan commission first? No, the owner has a choice. Okay.

The owner could um could either ask for a reason or ask for a use variance. Now, for a home in a subdivision that is bound by covenants uh in their property, this is probably the only practical option that they had because it's I don't know what the county commissioners would think about reszoning one lot in a subdivision. That would be very unusual. So, I think there I think the request is the best one the owner can make. I don't think a reasonzone in this particular case is uh very practical because part of a subdivision. But I'm just saying that when someone wants to change the use on their property, they have those two choices, right?

Variance of use or reason. Variance of uses are generally uh very small changes to the property. Uh and also uh and what I mean by that is in the spectrum of zoning there's a which is thought to be the least intensive and I say that because and I'm not a farmer. I know Don't mean anything disrespect about that. It's very intense at times, but in generally generally a's not very hard on the land, right?

And then you have industrial way over here, which is the most intense. And so if you're going from a to residential, that's a change where that's not as big a change as going to industrial. Same with this. This this is not asking to skip over some uses. This is the residential and then the next use commercial. So they are side by side in that. spectrum and so in terms of that consistency that that makes sense. The change the change proposed is you know you need to look at how intense is the use which I think the petitioner has noted not very intense three to four customers a day um not a lot of traffic it's not a McDonald's drive-thru um you know and it is probably um The nature of that business for all of us dog owners we know is uh you know it's not going to be a 24-hour business. It's going to be like normal hours. Uh maybe six days a week though, right? Uh maybe. But um and obviously the petitioner could put her business in a retail center and try to be super busy. But again, I think she's presented evidence this would be a low impact youth. Um, and so when you start evaluating it, that I think that's a really important fact is how much would the change really impact the surrounding area. Not just I would caution you, not just the owners in the subdivision, all the owners in the area is what you're looking at. So, uh, it is kind of isolated out there. I've been there. I know one of your neighbors uh been there once, but I mean it's kind of isolated in terms of there aren't a lot there aren't a hundred houses around it, but I think the nature of the use is is works in the petitioner's favor. Not all these factors work in her favor, but this

really this this factor works in her favor that it's a very moderate commercial use, not an intense use. And u so that's a factor you have to consider. I guess we need a motion one way or the other. ask a question. Would the petitioner come up? I just have a quick question. something I just thought of. So on the I'm I'm thinking about the unnecessary hardship factor although it would still involve uh use variance but you how you own two acres there is that correct?

I do not. I live there. Yeah. Um my mother-in-law owns it. Okay. Um yes

but it's two acres. Okay. So, um, so what the owners could do is it is two lot. I noticed this line. I didn't really notice it before, but the line on the property north south. So, the owner could uh theoretically split that property. Um, so that um instead of being one combined parcel with two different uses. You know, you could you could really separate it and treat it as one lot. Um they would need HOA approval for that with restrictions, but that's something that might go might go to the benefit of the petitioner on this unnecessary hardship issue. Um might help the petitioner just a little bit on that is that of course there would be a lot of trouble to do that and that kind of goes a little bit to something procure the land. It is a combined. It's two lots in one. And that might be something that sways that factor a little in her favor.

Um, and if I could, so lot five, which is the back end of our lot. Um, we originally had talked about putting the business there, we were against it because it does go past two neighbors homes. So, we thought it might be more as far as like the homeowners association is concerned, it might be a little bit more beneficial to our neighbors to have it up by the home so that way they weren't driving past uh law six and seven, our other neighbors since they were concerned about the lane.

Yes. Yes. Um they are exempt. um they created the homeowners association. Um so they they aren't responsible for the lane the use of the lane or anything like that. Yes.

My name is Lisa Graham and I live at the same address. Um originally I bought lot and went put the house there and then we bought five. So they were separated and I had them separated for a long time, different tracks and then they told me it would be a little cheaper on my property tax if I put them together. So that's why I I do have two lots but they're showing one track right now. So I guess we could split it back apart if if that's kind of what you were

I'm not I'm not suggesting it. I'm just saying that in in the uh on the issue of undue hardship, the BCA had not heard any reasons why doing it this way might be uh that there might be some impediment to um doing it a different way. So, the lot split or the pulling that residential lot out of the subdivision is an option um and having it reszoned. It's just that's a lot more complicated. And I just was pointing out, I'm not suggesting it should be done. I was just

pointing it out to the BCA. That's a fact that they could consider. That fact tends to help the case. Um, just trying to point that out to the BZ. I wasn't suggesting that's what you should do. Okay. Okay. But that's what it was. I bought them separated, then I left them like that for a long time, and then I put them together. I think what you did is great. I'm not I'm not I'm just I was just trying to help the board a little bit.

Okay. John made a point earlier. I agree. I think if you're going to make a motion to approve, I would make it with the condition that the use be limited to uh what was actually requested, not not all commercial uses. Yeah. I think we're all just about right there. And we don't want to I I don't want to stomp on a business that somebody wants to start, you know, but we want to keep it for everybody. more more than likely not. You have to remember my review isn't just general uh use of the property. It's it's about the comprehensive plan. It's about do we have jurisdiction over these things? What are they planning to do on the property for the variance? I mean, they are planning to build another building on the property. So these are the things that I review and that's why the staff recommend recommendation is the way it is because it's a private road. Um the owners of the subdivision, all the owners are all involved in maintaining

that road. Um and then the comprehensive plan focus is on residential and not commercial in residential areas. So that's why those are the two topics in uh my recommendation. I'll make I just I make a motion to approve this, but we also make the limit on it could only be that certain business and that's all dog grooming business. Yeah, I don't want to open it up for you guys. Put that the next guy wants to put in a car repair shop and you have 40 cars sitting around, you know. So, that's I want to put a limit on and I'm just I'm torn because I don't want to go against Mark's recommendation, but it just seems to me like that should work. So, that's my

business. And so that's my motion. We need a second. All those in favor. Okay, we got it. You're good to go. Okay.

Talk to Mark. Talk to Mark. He's the He's the administrator. Mark's the guru. Mark's the guru. Yeah. Okay. All right. Thank you. That was pretty interesting. It kind of it kind of me because I come in.

Yes. Okay. Now, any other business? Okay, then I guess we're