Board of Zoning Appeals - Regular Meeting

all right we'll go ahead and call the august 10th 2026 meeting of the board of zoning appeals to order um we'll start with roll call if everyone could just instead of me saying your names if we just want to start over here with greg we'll all say our names greg zank laurie jackson anthony cyphers jake vissing city attorney james moore chuck williams all right with that we only have one order of business before us i do not have the docket number in front of me but it is uh 2026-7 2026-7 this is a continuation from last meeting we held a public hearing in which we voted to table the matter seeking some additional information and that is what we are here tonight to discuss and to get to the bottom of and then figure out what we're going to do so I know James was not here last meeting, so he's just looking over some photos. Ronnie, if you don't mind, would you come up here so we can get an update on a couple things? So the question, I believe, and anyone correct me if I'm misspeaking, just so that we can kind of rehash and for everyone's benefit know where we're at. There was a variance application for a three-foot variance. The applicable side with the application was on the west side of the house. The questions, though, that were brought up were two one was on the west side was it a three foot variance being requested or a five foot and it was three foot off the property line um that small detail small detail that does matter just for purpose of granting the variance there and then looking at the east side we realized we didn't really know we didn't have the answer to at that time where the property line was so was the variance whatever was being sought was it enough to encap and sort of encompass both sides of the property with the deck not just the one So that's where we were having some question because we couldn't really make a decision until we got some clarification on those issues. Were you, Ronnie, able to get with the applicant and figure that out?

Yes. The variance was filed for on the east side of the property.

Or I'm sorry, am I mixed up? I'm saying east versus west on the opposite. It's actually east side. I'm sorry.

And the property is currently zoned R2. and when they filed for the variance we went down and measured it all started when he put the deck over on this property line and so and there was a concern that if a fire or something broke out she they could not get between them and johnny properly didn't agree she did get a variance back in several years ago, put her deck against the property line. And so I advised him that he'd either have to take it off or come in and get a variance. So that's what he's here tonight for, to get the variance. And right now, as the pictures show, it's sticking out about three feet past the house.

So just so you guys know, that is the original deck and then he redid it to that. So originally it was that, then he took it up and redid it to be that.

I believe both parties are in agreement on where the property line is on the east side.

Okay. So... So if you're saying that other fences or the other deck is on the property line. Yes. Okay. So setback in our two is eight.

Mm hmm. So really the house, the house itself is, yeah, it doesn't, those houses were built before zoning.

Yes. So they, yeah, they were built prior to the adoption of the current zoning ordinance with the current setbacks, then they would be typically considered legal nonconforming. Um, you know, you, you just wouldn't, couldn't go out and now make them occupy a larger nonconforming footprint.

And I don't know that this doesn't mean that we can't handle this tonight. But one thing just for bookkeeping and for clarity purposes, I know Ronnie had mentioned last meeting. Again, I'm not out there at the tape measure. I'd just like to see that application updated. that's going to be in a file somewhere that this looks to be about three feet off the property line. And if the setback is eight feet, instead of asking for a three foot variance, it'd be a five foot. So it's technicality, but I think it matters because 10 years from now, no one's going to remember what the heck anyone talked about or meant, you know. So I'd like to see that. Now, my question, though, was on If I could see those real quick, if this is the east side, I think the question that sort of stumped me last time where I really felt and the applicant can chime in here if he knows the answer to where is I'm looking at a picture of the west side of the house and I see where the deck is and there's some cars and you can kind of see the driveway. Where is the property line? roughly speaking, in relation to the deck on the west side of the house.

So from what I my measurements and from the deed and going from the 24 feet over on this property, the deed says and then comes over 34 feet. It's almost a foot still to the right from my measurements.

So a foot to so a foot to the right of the deck. Yeah. If you're facing them. Yeah. Okay.

So there... That's not an actual survey, just from what I... Okay.

So then let me back up. You see now where my... With the application itself and granting, potentially granting a variance goes, if we're only a foot on that side, now we need a seven-foot variance. We need to ask for seven feet instead of five feet now, because on that side, we're all but a foot off. Am I making sense, or am I being too...

Well, so if you're, I guess to break this down. So on the east side of the property, which was the subject of the application, the ask is for a the ability to build three feet into the setback. It's an eight foot setback. So, you know, if Essentially, it would have to be built to five feet off of the boundary line. And again, we don't have a survey before us. We don't have kind of renderings of where it is relative to the actual monumented boundary line. But if the board were to grant a variance as to that east side of the property, with a variance to allow building three feet into the eight foot setback, then it would need to be five feet off the boundary line to be in compliance with that variance. The other issue that you're bringing up is a potential apparent setback issue with regard to the deck on the west side of the property, which the applicant estimates to be roughly one foot off of the boundary line. if if a variance were sought as to that side the board could entertain two separate variances as to the east side of the property and the west side of the property it wouldn't all necessarily have to be a uniform variance sought That's the purpose of the variance process is to entertain both of those based on the particular facts and circumstances relative to that request.

But a variance is granted just to the oh, so it's granted specific to the

the property for which it sought. And at times it could even be limited to, you know, in terms of if you think of a use variance to just a particular owner, not just, you know, running with the property into the future. So, you know, so a variance that was granted for a separate property, neighboring property, no benefit of that variance would be given to a neighboring property.

And I guess where I was coming at, I think, with this is just trying to, we're talking about the deck as a whole. Obviously, we can look at one side versus the other, but my thought was if we could talk about, trying to get to where we can talk about and discuss and... figure something out for the whole thing, and that way it's just done. That's my goal. That's what I'm after, not to make things difficult.

Trying to have privacy for us, trying to have privacy for them. That was the biggest thing. And then to have where you can actually lock out the back door and get back.

Does anyone else have any questions right now? Nope. As far as discussion goes, I think when when we look at what are the criteria we need to meet to grant a variance, I feel like especially this side here, the East side sort of checks all the boxes. This seems to be based on the construction age of the homes when they were made, when they were built before zoning. I mean, neither house, it would seem, meets the current setback requirements. The houses themselves do. So this is a very peculiar situation, not... typical to something we'd see in new houses built today. It doesn't feel, when it comes to this side of the property, to me anyway, please feel free to oppose me on this, it doesn't feel right that there's the same thing over on the other side. The benefit of the use here for this homeowner, it seems that it would be to allow them the same use of their property.

And I think that you went through the measurements, too, that shorten this deck down to where it's not right on top. Right. In case there was an emergency or something like that, too, they can always head to the backyards.

Yeah, there's a cut-through there that a person could pretty easily, that seems pretty easily make it through. So if there were a need to go around, you know, there's no... It seems like that got rid of a potential hazard, a danger there. So...

And just to remind the board, so the criteria under the zoning ordinance as well as under Indiana statute. So under the Salem zoning ordinance for developmental standards variance to be approved, it may be approved when such departure from the developmental standards is not contrary to public interest and due to conditions peculiar to the property and not a result of the actions of the applicant. A literal enforcement of the Salem zoning ordinance would result in unnecessary and undue hardship. That's the zoning ordinance's criteria. The Indiana statutory criteria under Indiana Code 36-7-4-2 918.5 states that a developmental standards variance may be approved only upon a determination that the approved first, the approval will not be injurious to the public health safety morals and general welfare of the community. Second, that the use and value of the area adjacent to the property included in the variance will not be affected in a substantially adverse manner. And third, that the strict application of the terms of the zoning ordinance will result in practical difficulties in the use of the property. So if you were inclined to approve the variance that's being sought, you would have to find in the affirmative on all three of those criteria.

Barring any unknown information, I don't personally see how this how I mean, it fits all of those.

So he took the extra steps to kind of shorten the deck down, you know, where it wasn't doing any of those. Yeah.

Again, it's it's hard with these houses built the way they were, where they were on the parcels of land. to apply the rules strictly because they did that. Like I said, I don't think these houses themselves meet current setback.

Could we.

You're saying say three feet on the east.

You could say three feet. You could have the variance to be three feet on the east and you know, it would be seven feet on the western side of the property.

That would make it all push. We're talking about a deck right now. We make this variance. How can they put that under roof?

It would be limited to a deck.

It would be limited to what we approve.

And you can add conditions to the approval that it remain an uncovered deck, that there be no further expansion beyond the approved footprint.

um you know expanding the non-conformity um i was just trying to think down the road you know what could happen what could happen chuck if it's okay could i could i

would you withdraw your motion let me make them yeah i would make a motion that we approve a is a matter of order the president the presiding members should not be offering a motion right so i make a motion that we make the ordinance of the uh make it fit um of the setbacks of what it needs so three feet on one side, and then you're saying five feet on the other.

So it would be three feet on the eastern side and seven feet on the western side.

To make it fit and work.

Okay. Motion has been made.

Seconded.

Motion's been made and seconded. All in favor? Aye. Those opposed? All right. The variance has been granted. With that, Ronnie, I don't think there's any other business for us to discuss tonight. All right. With that, I would entertain a motion to adjourn. Motion made and seconded. All in favor?

Aye. Thanks, Anthony.