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10/14/2020 Board of Zoning Approval Minutes

CITY OF FRANKFORT
Board of Zoning Appeals
October 14, 2020

The Frankfort City Board of Zoning Appeals met at a Regular Meeting on October 14, 2020, in the Council Chambers, 301 E. Clinton Street, Frankfort, Indiana at 5:30 p.m.

President Kevin Myers was present and called the meeting to order. Upon roll call, the following members were present: Richard Greeno and Isac Chavez. Also present: staff members Don Stock, Zoning Administrator, Les Bergum, City Attorney, and Susan Palmer, Secretary.

MINUTES: Minutes of the September 9, 2020, meeting were presented. Richard Greeno made a motion to approve minutes as presented. Isac Chavez seconded the motion. Upon roll call, three “ayes” were recorded. Motion carried and the minutes were approved.

NEW BUSINESS: Myers opened the public hearing for Docket #2020-14, Stephani Cooper owner of 600 S. Clay Street asks for a Variance of Developmental Standards to allow a six-foot privacy fence to remain as constructed within 25 feet of the street right-of-way in a residentially zoned district.

Myers called on Les Bergum, City Attorney. Bergum stated Ms. Cooper has requested a variance of developmental standards under the city zoning code. Bergum presented to the board a copy of Indiana State Statue 36-7-4-918.5 and read into the record as follows: for a variance of developmental standards. A board of zoning appeals shall approve or deny variances from development standards (such as height, bulk, or area) of the zoning ordinance. The board may impose reasonable conditions as a part of the board’s approval. A variance may be approved under this section only upon a determination in writing that:

  1. The approval will not be injurious to the public health, safety, morals, and general welfare of the community;
  2. The use and value of the area adjacent to the property included in the variance will not be affected in a substantially adverse manner.
  3. The strict application of the terms of the zoning ordinance will result in practical difficulties in the use of the property.

Bergum went on to explain it is these three findings that Don Stock laid out in his staff report and that the board needs to meet in order to make their decision also pointing out halfway through section 918.5 it states the board may impose reasonable conditions as a part of its approval.

Bergum read into the record the Municipal Code defining a variance as follows, VARIANCE a modification of the specific requirements of this chapter granted by the Board of Zoning Appeals in accordance with the terms of this chapter for the purpose of assuring that no property, because of special circumstances applicable to it, shall be deprived of privileges commonly enjoyed by other properties in the same vicinity and district.

Bergum also passed out and read into the record a copy of the municipal code 155.013 Fences  (F)   In residential or business districts, no fence or wall of more than six feet in height may be placed, built or installed in the side and rear yards of any lot.  No fence or wall of more than 42 inches may be placed, built or installed within 25 feet of any street right-of-way in any Residential District or LB District nor within 75 feet of any street right-of-way in the RB District.  All fences and walls must be in compliance with visual clearance area requirements of this chapter, Bergum pointed out the 25 feet is of any street right-of-way is not for just the front of the home, adding right-of-way means any street right-of-way, and with this being on a corner lot is one issue that could be considered, along with the situation that the original plat of this subdivision when adopted was prior to the 1964 Zoning Code and it’s restrictions, Bergum asked Ms. Cooper if she would like to go next and she declined. Bergum thanked the board and turned the meeting over to Don Stock, Zoning Administrator

Mr. Stock greeted the board and touched on Bergum’s comments referencing his staff report and reminded the board that his staff report is not a binding report and is not something the board has to agree to. The board can find their own findings to make the variance acceptable, however, it is the staff’s recommendation to not accept the variance. Stock explained how he arrived at his 25 foot set back so that everyone is on the same page, looking at the pictures of the fence its self both from the East and West looking at the fence you can see the proximity to the sidewalk, also pictures from beacon this is the GPS pinpoints of the property, property lines and also a beacon map showing the street right-of-way which is a 50 ft. right-of-way. Stock explained how he arrived at the right-of-way point and read into the record his staff report and how the need for this variance occurred. A variance may be approved under this section if, after a public hearing, the board makes findings of fact in writing that;

  1. The approval will not be injurious to the public health, safety, morals, and general welfare of the community
    • This fence was erroneously permitted by the Department of Building Services. Since the fence has been in place, it has not caused any harm. It will not be injurious to the public health, safety, morals, and general welfare of the community.
  2.  The use and value of the area adjacent to the property included in the variance will not be affected in a substantially adverse manner.
    • The surrounding area is also zoned C Residential. The fence has existed at this location since spring and has not caused any problems to surrounding properties. Since fences are allowed in all districts as long as they’re installed properly and in compliance with the ordinance, it should not adversely affect adjacent properties.
  1. The strict application of the terms of the zoning ordinance will result in practical difficulties in the use of the property.
    • By ordinance, no fence over 42 inches in height may be built or installed within 25 feet of any right-of-way. Section 155.013 (F) would allow the owner of this property to leave the fence at the same location simply by decreasing the size of the fence to 42 inches within 25 feet of the right-of-way. After the 25 foot setback has been met, the fence may be installed at 6 feet tall. The strict application of the zoning ordinance will not result in practical difficulties in the use of the property.

It is the opinion of the staff that the Variance of Developmental Standards should be denied subject to the findings of fact in this staff report. If the board wishes to approve the request, we ask that the fence be brought into compliance with any change of ownership. Myers thanked Stock and called on anyone else. Greeno asked if the post were 36” deep and cemented into the ground. Stock acknowledged yes adding that Daniel inspected the holes and they were code. Myers thanked Stock on his report and called for any other questions, hearing none, Myers called on the petitioner to speak.

Ms. Cooper stated that the fence post was 36” deep and set in concrete and the reason she could not come to an agreement with Mr. Stock is that the fence was installed for her dog, a 60lb Lab if she would drop the fence to 42” her dog could jump over. Asking her to move her fence after it has been in place for several months, she feels is unfair. Ms. Cooper added that it did go through an approval process and she understands that people do make mistakes, but between Mr. Stock and Mr. Howe they were out to her property 4 different times approving her fence as is. Cooper said her neighbors love the fence and thought it looks beautiful and her dog and family enjoy having a backyard that they can play and run in without worrying about the dog getting out.

Myers called for any questions. Zack Light a friend and neighbor of Ms. Coopers said the fence has been up several months with no issues in the neighborhood stated it’s a nice-looking fence.

Myers called for any questions or comments from the board or anyone else, hearing none Myers closed the public hearing. The board took note the notice of public hearing was ran on October 3rd, 2020 in the Frankfort Times, certificate of mailings were mailed to every property owner within 100 feet of the petition site on September 29th, 2020, and there is no conflict of interest and a quorum exists. Myers called on any discussion or a motion. After a brief discussion between the board members, Myers made a motion to grant the Variance of Developmental Standards according to the findings of facts in Don Stock’s staff report for the first and the second finding as stated, however and the 3rd finding. The strict application of the terms of the zoning ordinance will result in practical difficulties in the use of the property due to being a corner lot and the fact it will reduce the size of enjoyable space for her family and large dog. Myers also added a condition that if this property changed ownership, the new owners would need to bring the fence into compliance with the current zoning code and that this approval with its conditions be recorded. Isac Chavez seconded the motion. Upon roll call, three “ayes” were recorded. Motion carried the Variance of Developmental Standards with conditions is approved.

With no further business before the board, the meeting was adjourned.

Susan Palmer

Secretary of Board of Zoning Appeals

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