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Board of Zoning Appeals Minutes: June 30, 2011

BZA minutes are transcribed in a summarized manner. Audiotapes are available in the Planning Department for reference. Videotapes are also available for viewing in the Audio-visual (CATS) Department (phone #349-3111 or E-mail address: of the Monroe County Public Library, 303 E. Kirkwood Ave.

The Board of Zoning Appeals (BZA) met in the Council Chambers at 5:30 p.m., members present: Pece, Murray, Aquila, Klapper, and Southern (Seeber absent).

APPROVAL OF MINUTES: None at this time.


1461 W. Bloomfield Rd.

Request: Use variance to allow outdoor storage within a Commercial Arterial (CA) zoning district.




1200 N. Walnut St.

Request: Use variance to allow first floor apartments, and variances from minimum parking, parking setback, building setback, and landscaping standards.

Case Manager: Jim Roach

Eric Greulich (Zoning Planner) presented the staff report. The subject property is located at the northeast corner of Walnut and 16th Streets. The property is zoned Commercial General (CG). The Garden Hill Neighborhood is located to the east of this site; this neighborhood is all zoned Residential Core (RC). To the north, south and west of this property are various multi-family, single-family and commercial uses. This site is approximately 0.23 acres in size, and it currently contains three buildings. Each building has one unit-a mix of bedrooms within each building. This particular site came to the Board of Zoning Appeals (BZA) in 2007 for a series of variances to construct one, three-story mixed-use building. That particular petition was eventually denied due to various concerns from adjacent neighbors. The petitioners have been working with the neighborhood since then to come up with a revised plan that would address a lot of their concerns from 2007. The petitioner is now coming forward with a revised petition from the first hearing. This is a request for a use variance to allow for ground floor residential units, as well as a series of four variances to allow for two of the existing homes to be removed (The two residences along 16th Street). Each of those homes would be removed and each would be replaced with another unit. There would be three individual residential units on the property. Currently there are nine (9) bedrooms; with this petition there would be a total of ten (10) bedrooms on the property. There is an alley that runs along the east side of the property that the petitioner would utilize to access parking spaces that are on the property now; these spaces would be improved and deepened. Once those spaces are improved, you could get a total of six (6) parking spaces directly off of the alley. Those spaces would be paved as well. Also, new landscaping would be installed throughout the property. In terms of the site plan; the two new buildings will be constructed in approximately the same location as the existing buildings. As previously stated, the petitioner is requesting a use variance since the Commercial General zoning district does not allow for ground floor residential units. The petitioner is proposing to replace the existing residential use with similar residential use. They are also requesting a variance from the minimum parking number. A total of ten (10) parking spaces are required-one for each bedroom. The petitioner would have six (6) on-site parking spaces as well as six spaces that are located on 16th Street, immediately in front of these buildings. Also requested is a front yard parking setback off of 16th Street. The zoning code requires 15 feet from the proposed right-of-way for new construction. The petitioner is proposing a 10 foot setback. This setback would match the setback of the residential house immediately to the east. Also requested is a variance from the front parking standard. The parking standard in this district is 20 feet behind the front of the building (from 16th Street). The proposed parking spaces would be even with the front of the building. The fourth variance is from landscaping standards. This relates to the buffer yard landscaping standards section of the code. This requires that an addition amount of vegetation be planted within the 22 feet that serves as a buffer yard along the east side of this property. The petitioner isn't able to get the required number of trees within the buffer area. The building located at the southwest corner would be a two-story, four-bedroom house. To the east of that, the building would be a one-story, three-bedroom house. As part of this petition, the sidewalk along 16th Street would be repaired (there are several cracks along this sidewalk). New street trees would also be installed in the tree plot along 16th Street. Greulich said there is not a true tree plot along Walnut Street; the sidewalk goes right up to the edge of the right-of-way line. Therefore, street trees will be installed along Walnut Street along the back side of the sidewalk. Parking will be installed off of the alley to the east. These spaces will be paved and deep enough so that you could get a total of six cars in the parking area. This parking will be formalized, striped and finished. Greulich stated that both buildings would be clad in hardiplank siding and have a shingled roof, similar to other structures found throughout the neighborhood. The Plan Commission reviewed this petition for compliance with the Growth Policies Plan (GPP) at the June 13th meeting. The Plan Commission forwarded a positive recommendation to the BZA. They found no substantial interference with the GPP. The petitioner has balanced the layout of the property to meet as many requirements of the UDO as possible while redeveloping this underutilized parcel. Staff finds no adverse impacts to adjacent properties. There is adequate on-street parking on nearby streets to handle potential spillover parking. Staff finds peculiar condition in the small size of the property, the redevelopment nature of the project, and its location at a corner of two streets. Peculiar condition is also found in that the presence of commercial uses and commercially zoned land along Walnut Street and the adjacent street corners lessens the need for this property to have commercial uses. Staff finds that the site plan provides an appropriate level of rehabilitation of the site, and it compliments the adjacent residential neighborhood. Staff recommends approval of this petition based on the written findings in the staff report, including the following conditions:

1. Building elevations and architecture must be consistent with submitted elevations.

2. The petitioner shall execute a recorded commitment which states that the petitioner shall agree to forgo any damages during the acquisition of any needed property for widening of N. Walnut Street that would be incurred due to the approval of this variance. This commitment must be recorded prior to release of any building permits.

3. One additional tall canopy tree needs to be shown along Walnut Street.

Doug Bruce, Tabor Bruce Architects, is representing the petitioner. The proposal that was brought forward in 2007 or 2008 was much larger. It wasn't something that his firm worked on. The previous project was too large (the density), and the building was too commercial and didn't have a residential feel. At that time, the neighborhood was opposed to the project. He said they met with the neighbors and the Historic Preservation Commission (HPC). They felt like they could keep the one house. The two-story home has its own issues but it's currently occupied. The smaller home along 16th Street has been unoccupied for a year. The smaller home doesn't have a true foundation and also has some roof trusses that are coming apart, including some other issues. The current proposal is a result of meeting with the neighbors and Planning Department. These three homes are part of the Garden Hill Neighborhood. Therefore, they wanted to keep a residential feel for this project. Having a residential feel really precluded them from having ground floor commercial space. This lot sits 4 or 5 feet up from Walnut Street so it's somewhat isolated. It also has a great deal of fall from along 16th Street-from east to the west. There is parking along the alley with a retaining wall. He said they are proposing three units with a total of ten (10) bedrooms.

Jenny Southern: The tree located by the graveled parking, is that the one that's going to removed and replaced with evergreens?

Bruce: Yes.

Southern: Will the two large trees stay?

Bruce: Yes, those stay.

Southern said she wouldn't mind trading the tree for the evergreens. Does anyone know what kind of tree it is?

Greulich: I think it's a redbud. The site plan identifies it as a redbud.

Bruce: I agree with you but the hardest part is that we're required to put so much into evergreen on the space. If we can keep the tree; I think we show it outlined right now that we're going to try and keep it.

Greulich said more than half of the tree is going to have substantial disturbance to its root bed, but Staff can work with the petitioner to preserve the tree if possible. He added that the evergreens are a requirement of the landscape buffer yard to provide year round screening.

Southern said evergreens aren't doing very well right now due to the weird weather. Southern referred to the two large trees that are going to be along the street. She encouraged the petitioner to swerve in and around those trees when the sidewalk cracks are repaired as to not damage the tree roots.

Greulich: The petitioner will plant two, large canopy trees along the Walnut Street side to function as street trees since there isn't a tree plot there.

Southern: Will the City or petitioner be responsible for the tree plots if they get blown over?

Greulich: The petitioner.

Southern: Will there be an easement?

Greulich: No, they will be on their property.

Barre Klapper asked about the front setback off Walnut. Why aren't the porches lining up with the existing porch that's going to remain?

Greulich said the porch would meet the setback requirement. The only thing that's in the code for construction next to "historic" is actually just in the downtown. In other districts, you're not required to adjust architecture or site plans if you're next to an historic building.

Bruce said they've already met with the HPC. While they haven't approved a Certificate of Appropriateness for this two-story building, they have for the single story. He said the HPC gave them a site plan approval. They just don't have enough room. They have to keep a minimum space between the two buildings, which kind of pushed this building forward.

Klapper said from a street perspective it's sort of odd to push that building forward.

Bruce: Obviously, the developer wants to build the smallest footprint that they can and get the most return with the bedrooms. It's a balancing act. As we start to go in to the construction drawings, if we find that we can take a little bit of room out and bring the footprint smaller, we will certainly look at that if we can.

Klapper said it also looks like the building is offset to the west from the existing building. You might be able to push it back a little more. If there is anyway to push the building back it would be a better presentation to Walnut Street.

Klapper: What's the relationship going to be of the finished floor of the house to the parking elevation? Will you maintain that?

Bruce: Definitely. We haven't shot any grade elevations yet. We obviously can't change the grading significantly of the parking lot because of the existing alley.

Klapper suggested maybe having a sidewalk or curb rather than trying to create a green space.

Duncan: I agree, but part of that was the landscape requirement.

Patrick Murray asked the petitioner if he or the developer attended neighborhood meetings.

Bruce said they both did.

Murray: Number of meetings where you worked through the plans?

Bruce said at least two meetings. The developer was at one other meeting that he couldn't attend. The developer also went to meetings for the conservation district.

Murray said this proposal is considerably different from the first project a year or two ago; considerably improved in terms of its scale and compatibility with the neighborhood.

Milan Pece said the sidewalk appears to be bumped out at the 16th and Walnut intersection. Is that to protect the parking lane or does it just look that way on the drawing?

Bruce: The little leg that comes towards the south?

Pece: Yes.

Bruce said its there and they discussed it on-site. They plan to remove the two steps and re-grade. Where the sidewalk heads south and crosses 16th Street, they're going to do a recessed/ADA curve ramp-opposed to coming out straight onto Walnut Street. The curb will remain on Walnut Street.

Pece: Is the north/south alley two-way or one-way?

Greulich: It's only 12 feet wide.

Pece: It's just any way you want to go?

Greulich: Yes.

Pece: Where it intersects 16th Street, is that going to affect the site lines where there are evergreens?

Greulich said we might need to adjust some trees that are at the far corner to make sure it's not in the sight triangle.

Patrick Shay, Development Review Manager, added there is approximately 13 feet from the trees to the actual street intersection, which should be enough room to get the view you need from a car.

No remonstrance.

**Aquila moved approval of UV/V-20-11 based on the written findings, including the three conditions outlined in the staff report. Murray seconded.

Aquila thinks this project is much more consistent with the current neighborhood. It's a nice improvement.

Roll Call: Motion carried 5:0-Approved.

120 E. Dixie St.

Request: Use variance to allow multi-family occupancy within a Residential Core (RC) zoning district.

Case Manager: Patrick Shay

Patrick Shay (Development Review Manager) presented the staff report. The site is located at the southwest corner of Washington and Dixie Street. The property is zoned Residential Core (RC). There are currently two structures on the site-a duplex, as well as a three-bedroom home that the petitioner lives in. There is also a small parking area along Dixie Street. The three-bedroom structure is the one in question. The petitioner is seeking a use variance approval to allow for a maximum of five (5) unrelated adults to occupy this structure, rather than the three unrelated adults that is allowed by the RC zoning district. This property received several variances in 1990 to allow the single unit structure (120 E. Dixie) to be relocated from a downtown location to this lot. The property was zoned multi-family (RM) at that time and allowed for multiple units on the property. The petitioner purchased the property in 2004. The property was still zoned RM. Again, the property included two, one-bedroom units on the corner and one, three-bedroom unit within the structure in question. At that time, with multi-family zoning, the property at 120 E. Dixie would have been able to be rented to a maximum of five unrelated adults. However, an occupancy limit of 5 was never established because it wasn't being rented, it was being utilized as an owner-occupied unit. No additional units or bedrooms would have been permitted under that zoning. With the adoption of the Unified Development Ordinance (UDO) in 2007, the Plan Commission and Common Council were asked to evaluate a few multi-family zoned areas within core neighborhoods. They were being asked to determine if these areas should be downzoned to single-family to better achieve the City's goal of protecting and enhancing core neighborhoods. The petitioner's property was located within one of the discussion areas. This area considered for downzoning included 11 properties along S. Washington Street, between commercially zoned properties along S. Walnut Street and residential properties within the Bryan park Neighborhood that were already zoned single-family. Ultimately, the Plan Commission and Common Council downzoned these 11 properties, including the petitioner's property, from RM to RC. At that point, all of those properties became lawful non-conforming properties. Shay noted that 10 of these properties, including the petitioner's, have multiple units. Four of the 11 properties had units with occupancy permits for more than 3 unrelated adults and were eligible for certificates of non-conforming use regarding occupancy. As previously stated, the petitioner would have been allowed to rent the structure to 5 unrelated adults. However, since it was utilized as an owner-occupied structure, it was not eligible for a certificate of non-conforming use for higher occupancy. The petitioner would like to rent the structure to 5 unrelated adults rather than 3. The petitioner intends to get married and move from this structure. He would like to register it as a rental unit and finish the mostly unfinished basement and add two new bedrooms. Shay stated the current zoning does not allow for an occupant load of 5 unrelated adults or an increase in the number of bedrooms because it is a lawful non-conforming use. Staff finds that although the surrounding area is similar to the petitioner's in terms of use and density, the proposed occupancy increase is in direct conflict with the policies of the Growth Policies Plan (GPP). The GPP discourages the conversion of single-family homes to apartments. The GPP gives guidance to conserve community character and to maintain the current maximum occupancy standard of three unrelated adults within single-family residential zoning districts. Staff is sympathetic to the petitioner's case due to the heavy multi-family use in the area. However, Staff finds that the Plan Commission and Common Council understood the potential impacts to individual properties rezoned in 2007. Future increases in density and occupancy should not be permitted or encouraged. Shay stated this request is inconsistent with the GPP and the policy change for the area as evidenced by the new zoning. The Plan Commission voted 6-2 at their June 13, 20ll meeting to forward a negative recommendation to the Board of Zoning Appeals. Staff recommends denial of this petition.

Michael Korus said he owns the property at 120 E. Dixie Street. He would like to obtain an occupancy permit that would allow him to rent his home (2400 sq. feet) to the same number of people that he was allowed to rent to when he purchased the property. This property is located next door to a commercial junk yard. It's surrounded by multi-family properties. He said this property wouldn't be especially appealing for a family, but it would make a great rental property. This property is ½ block from a bus stop and a bike line. It's also a short distance from the B-Line Trail and the downtown. This property is technically located in the Bryan Park Neighborhood. This property is a far cry from properties near the park or slightly further into the neighborhood. The view from his front porch is one of cars rushing by the "S" curve on Walnut Street and the 3-story apartment building. He was required to notify twenty-one people as part of this process for variance; he has received no opposition. In fact, three people took the time to wish him good luck on his appeal. He said 5 people renting this house would actually fit in with adjacent properties; one house directly across the street has a five person occupancy. He said it's hard to understand why these properties were rezoned from multi-family to Residential Core in the first place. If he had never lived there or done any improvements to the property, he could've had a 5 person occupancy permit. He said Patrick Shay, Planning staff, confirmed at a Plan Commission meeting that no notice is needed for this-for properties to be downzoned. He said he does face hardship. The zoning change did nothing to support owner-occupancy of his property. The alley did nothing to serve as a buffer. He would like to be able to sustain his property but without a variance it won't be possible. He believes his situation is unique and that it deserves special attention. He encouraged the Board to grant his use variance request.

Milan Pece asked Staff to clarify the notice requirements for downzoning.

Patrick Shay, Development Review Manager, said when there is a city-wide zoning update/change, including zoning maps, there is no requirement for individual notice to property owners. It happened in 1995 and in 1973.

Klapper: The petitioner cannot lawfully add any bedrooms?

Shay: Correct. That is under the old zoning and the new zoning.

Public Comments:

Jan Sorby said there was and is a demonstrated need for larger, single-family houses in this area. Downzoning was done to support the goals of the GPP, protect the historic character of the area, and put into place a mechanism that would allow the neighborhood's largest houses to revert to single-family when and if the housing market showed a need. This was the right decision. Higher densities on small lots have created a lot of problems for the general welfare of the community. Parking is tight in this section of Washington Street, especially during the school year. Sight lines are difficult on the cross streets. Along with the additional people come more cars, noises, smells, garbage, friends, etc. Washington Street is beginning to be reclaimed as a desirable single-family area. This is an area that is right for rehabilitation. She encouraged the Board to deny the variance.

Jenny Bower owns a home on S. Washington Street. She's lived here for approximately 14 years. This petition moves the zoning in the wrong direction. The petitioner already has a certificate of non-conforming of use for the property and now wants a variance to increase the occupancy for a house that's been used as single-family for over 20-years. The property enjoys multi-family status as-is because there are three units on the property allowing for a total of seven occupants. What Mr. Korus is asking for would take the property from multi-family to "super" multi-family. In her opinion, seven renters are enough. She said zoning requirements are legislative changes, so the "notice" is public notice. When something is done at the State House in Indianapolis, she doesn't receive notice about it, but there is public notice in either the newspaper or online. She encouraged the Board to deny the variance.

Jeanette Rehart said she and her parents have lived in this area for years. She looked on the GIS system and it didn't list Michael Korus as the owner of the property. She said she didn't have time to go to the Auditor's office, but it leads her to believe that he's buying the house on contract. Is he the correct person to petition the BZA for this request? She is also questioning the issue of hardship to Mr. Korus, especially when he owns eleven (11) other rental properties.

Dave Stewart has lived near Bryan Park for the last nineteen or twenty years. He said that he's appalled at Michael Korus' view of the neighborhood. He doesn't want the neighborhood to change and upgrade into a bunch of people. The petitioner talked about how he didn't like the neighborhood, but yet he lived there. In his opinion, it's very disturbing. He said this whole process is encouraging in that the Planning staff recommended "no" and so did the Plan Commission with regard to this variance request, but it also makes him worry about his neighborhood in a way that he hasn't in the last twenty years. He encouraged the Board to protect the Bryan Park Neighborhood.

Tonya Matthew is a resident of Bryan Park and a member of the Bryan Park Neighborhood Association. She agrees with the City planning staff and the Plan Commission. She believes this petition should receive a negative recommendation due to its conflict with the core neighborhood policies outlined in the GPP. This lot already has two rental structures on it, double the usual for a core neighborhood. South Washington is a street that is revitalizing itself with more stable residences. To that end, the property on the northwest corner of Washington and Davis has become an attractive residence; this property was an abandoned commercial site for several years.

Marylou Mitchell has lived in the neighborhood forty-five (45) years. She would like to see the neighborhood stay the same. She asked the Board to please deny this petition.

Steve Volan, Council representative for District 6, said he was present at the inception and development of the UDO. This was the petition that he expected would eventually raise its head. He said during the development of the UDO, we knew that we wouldn't be able to anticipate everything that was coming forward. If we could have anticipated this problem, we would've tried to account for it. However, at the rapid pace the Council had to consider the UDO in late 2006, it's now led me to slow down the pace at which the Council considers legislation. We were pushing to get it done by the end of 2006 and we worked until the very last minute of that year. The neighborhood of Bryan Park actively embraces Walnut Street, and that makes a difference in the way the neighborhood thinks about itself. There is so much multi-family there that this problem is only going to continue in the future. Regardless of zoning or the intent 20-years ago, this building is effectively considered commercial by banks. He thinks the petitioner is right. He recommends that the zoning go back to RM eventually.

John Lawrence said the petitioner is basically asking for a spot zoning. The petitioner is legally using the property as multi-family now. He has two apartments and an historic house on Washington that allows 4 unrelated people to live there legally. The single-family dwelling with 3-bedrooms on Dixie Street allows 3 unrelated people. Currently, he is allowed 7 unrelated people. This property is located on a corner. It can easily be subdivided into the traditional pattern of two smaller lots, which is seen throughout the neighborhood. He could potentially make more money with two single-family houses. With his current situation, the petitioner could gross $3,500.00 per month from both of these houses, with the current zoning.

Ian Woolen lives at 1106 S. Washington Street. He would like to be able to support the petition but there isn't a win-win situation here; no win for the neighborhood.

Pece said the 2007 action was to encourage lesser density in that area. He is sympathetic to the petitioner's situation, but the point remains that the Plan Commission and Common Council spoke clearly and it's to discourage density. He said it's a small incremental step but it's a step in the right direction.

**Aquila moved denial of UV-21-11 based on the written findings and recommendation in the staff report. Klapper seconded. Motion carried 5:0-Denied.

Meeting adjourned @ 7:00 p.m.