HomeMy WebLinkAbout07-24-17 Zoning and Annexation ��SpUTgB�,�,O
F
U C
W kACE
�fe rJ�_ a�
r"
a a
1865
OFFICE OF THE CITY CLERK
KAREEMAH FOWLER,CITY CLERK
ZONING &ANNEXATION JULY 24, 2017 5:05 P.M.
Committee Members Present: Oliver Davis, John Voorde, Gavin Ferlic, Jo M. Broden
Committee Members Absent: None
Other Council Present: Regina Williams-Preston, Karen White, Dr. David Varner,
Tim Scott, Randy Kelly
Other Council Absent: None
Others Present: Graham Sparks, Bob Palmer
Presenters: David Stanton, Angela Smith, Rodney Wekkin, James
Masters
Agenda: Bill No. 34-17- Rezoning at 4640 S. Michigan
Bill No. 40-17- Indoor Storage Text Amendment
Bill No. 17-37- Special Exception at 1502 W. Dunham
Committee Chair Oliver Davis called to order the Zoning and Annexation Committee meeting at 5:05
p.m. He introduced members of the committee and proceeded to give the floor to the presenters of the
legislation.
Bill No. 34-17-Rezoning at 4640 S. Michigan
David Stanton, Area Plan Commission with offices on the 11 th floor of the County-City Building, stated,
The petitioner is requesting a zone change from GB, General Business District and SF-1, Single-Family
and Two (2)-Family District,to CB, Community Business District. On the site is a former retail space.
To the north of the site is a retail/automotive establishment zoned GB, General Business District, vacant
lots zoned CB, Community Business District, and homes zoned SF-1, Single-Family and Two (2)-
Family District. To the east of the site are homes zoned SF-1, Single-Family and Two (2)-Family
District. To the south of the site is the St. Joseph Valley Parkway. To the west of the site is a retail
complex zoned CB, Community Business District. The four point one-five (4.15) acre site is part of a
larger project to convert the retail structure, adjacent to the lots currently in petition,to a proposed
207,469 square foot retail store that will be accessed from St. Joseph Street. The area is being zoned, as
primarily shown, as retention areas on the proposed site plan. The remainder of the project is already
455 County-City Building•227 W.Jefferson Boulevard-South Bend,Indiana 46601
Phone 574-235-9221 •Fax 574-235-9173•TDD 574-235-5567•www.SouthBendfN.gov
JENNIFER M.COFFMAN ALKEYNA M.ALDRIDGE JOSEPH MOLNAR
CHIEF DEPUTY/DIRECTOR OF DEPUTY/DIRECTOR OF POLICY ORDINANCE VIOLATION CLERK
OPERATIONS
zoned CB, Community Business District. Based on the information available prior to the public hearing,
the staff recommends the rezoning petition be sent to the Common Council with a favorable
recommendation. Rezoning this site to CB, Community Business District, will allow for the reuse of an
existing commercial property in a manner consistent with the comprehensive plan.
Committee Chair Davis opened the floor to questions from the Committee or Council for the petitioner.
Committeemember Jo M. Broden asked, Could someone please highlight the recommendations that
were given from the Department of Community Investment?
Angela Smith, Area Plan Commission with offices on the 11th floor of the County-City Building, stated,
The petitioner can address those. The plan does provide for a bike rack. All the variances and
development standards will be handled through the Area Board of Zoning Appeals so some of the
landscaping may be addressed there.
Committeemember Gavin Ferlic stated, So it looks like this isn't just using the old K-mart Building, this
actually is a demolition and a rebuild.
Rodney Wekkin, Menards Inc. with offices at 5101 Menards Drive in Eau Claire, WI, stated, Some of
the buffering and additional landscaping will be on the northeast side of the site. We've put in several
additional shade trees as well.
Committeemember Broden asked, Is there sidewalk access?
Mr. Wekkin replied, Yes and, as mentioned,there are bike racks in front of the store.
Councilmember Karen White asked, What are your plans with your old site and how many employees
will be retained?
Mr. Wekkin replied, We will try to retain all of the employees. If there is any delay with the closing of
the old one (1) and the opening of the new one (1), we will try and have them work at a nearby Menards
until the project is complete. We do own the property there and it is not yet determined what we will do
with the site. We've tried to use it for storage but we will most likely market it for sale for another user
there.
Committeemember Broden asked, The total site area on the petition says five point four(5.4) acres on
the petition and then on the staff report it says four point one(4.1), why is there a difference?
Ms. Smith stated, It is probably closer to the five point four(5.4) number. Because their property
incorporates some vacated rights of way, it is hard to determine the exact number.
Committee Chair Davis then opened the floor to members of the public wishing to speak in favor of or
in opposition to the legislation. There were none. He then turned the floor back to the Committee for
further comments or main motions.
2
Committeemember Ferlic made a motion to send Bill No. 34-17 to the full Council with a favorable
recommendation. Committeemember John Voorde seconded the motion which carried unanimously by a
voice vote of four(4) ayes.
Bill No. 40-17- Indoor Storage Text Amendment
Ms. Smith stated, Before you is a text amendment to add a new use to the South Bend Zoning
Ordinance. We already have many self-storage warehouses but in recent years we have had instances
where developers have wanted to reuse vacant retail spaces that have all the necessities for storage units.
We don't have anything in our ordinance that addresses that right now and we have been treating them
like mini self-storage warehouses. We would then run into a conflict where they can't also have retail in
the same complex. There was a PUD, Planned Unit Development, at the corner of McKinley and
Hickory that faced this problem. We are trying to move away from the use of PUDs and this is a
solution that we think will be valuable going forward. The text amendment before you creates and
defines that use and allows for it within the CB, CBD, and GB Districts. They are already allowed in the
LI, Light Industrial Districts. It also incorporates some development standards. The intent is to maintain
the retail character of the district they are in. This comes to you from the Area Plan Commission with a
favorable recommendation. Modifying the zoning ordinance to allow for this adaptive reuse of large
vacant commercial structures for the creation of conveniently placed new storage facilities will promote
the stability and vibrancy of the Commercial Districts within the City.
Committee Chair Davis opened the floor to questions from the Committee or Councilmembers for the
petitioner. There were none.
Committee Chair Davis stated, I am one (1) of the cosponsors of this legislation. As it was presented, the
Area Plan Commission was in favor of this. We have many situations that this could apply to.
Committeemember Broden stated, I think this is one (1) of those `vacant-to-value' situations, but on
steroids. We have the opportunity to put back into use and recycle old buildings for new purposes.
Obviously there are some environmental benefits that are of interest to me and my support of the
legislation. We are trying to meet a basic service for individuals but this is a possibility across all the
districts. From a developer's standpoint,the cost is greatly reduced by repurposing these buildings and
there is also a built-in market. The buildings are right in the middle of the activity of the given market. I
want to thank the Area Plan Commission and the Office of Community Investment.
Committee Chair Davis then opened the floor to members of the public wishing to speak in favor of or
in opposition to the legislation.
Mike Divita, Office of Community Investment with offices on the 14th floor of the County-City
Building, stated, As Councilmember Broden pointed out,we worked closely with the Area Plan
Commission staff. We think this change will offer property owners an economically viable reuse of the
building, specifically the big-box and other large structures. With the standards proposed, it really gives
flexibility to allow buildings to shift to and from self-storage use as the market dictates.
3
Chuck Bulot, Building Department with offices at 125 S Lafayette Boulevard, stated, Any time we add
flexibility to streamline an operation of building use and development, it is a positive thing and this aids
in that development.
With no other members of the public wishing to make comment, Committee Chair Davis turned the
floor back to the Committee for further comments or main motion. Committeemember Ferlic made a
motion to send Bill No. 40-17 to the full Council with a favorable recommendation. Committeemember
Voorde seconded the motion which carried unanimously by a voice vote of four (4) ayes.
Bill No. 17-37- Special Exception at 1502 W. Dunham
Bob Palmer, Common Council Attorney, stated, This is a unique position for the Council to be
in. In ruling on a special exception, the Council is acting as a quasi-judicial body, instead of a
legislative body. Therefore, there are specific criteria to look at in passing this petition. Those
criteria are as follows: One (1) is the determination of whether or not the proposed use will be
injurious to public safety, comfort, community moral standards, convenience or general welfare.
Two (2) is the determination of whether or not the proposed use will injure or adversely affect
the use of the adjacent area or property values therein. Three (3) is the determination of whether
or not the proposed use will be consistent with the character of the district in which it is located
and the land uses authorized therein. And four (4) is the determination of whether or not the
proposed use is compatible with the recommendations of the City of South Bend Comprehensive
Plan. Also, unlike your legislative function in which you consider the wishes of your constituents
and any other item you believe is relevant in passing legislation, since you are a quasi-judicial
body, your review should be limited to the record proceedings in the ABZA Meeting,the
Committee hearings and the Public Hearing you will hear tonight. The Council should not
consider any other communications that have not been provided to all Councilmembers and the
general public.
James A. Masters, 350 Columbia Street, stated, I am here on behalf of Robert Burg for the
special exception for property at 1502 W Dunham. The petition is to permit a special exception
for the property. This property has a history that bares some recognition. There had been a bar
there called the `Dunham Inn' for at least fifty (50) years and the property was zoned C,
Commercial. In May of 2004, there was a paper zoning change by the Area Plan Commission
that changed the zoning to MU, Mixed-Use.Nobody asked for that and the property owner
didn't request the change, for there was no consent. The effect of that zoning change made the
property a legal non-conforming use. It could remain a tavern, it was just no longer in the proper
zoning district. In Mixed-Use zoning districts, you have to ask for a special exception to have a
tavern, so here we are. So the change is the tavern wants to have a deck. That has been the
subject of some consternation. Could things have been done differently? You bet. Should it have
been done differently? I think so. But, we are now before you asking for the special exception. It
comes to you with a favorable recommendation from the Area Plan Commission as well as the
Area Board of Zoning Appeals. I hope you have all had the opportunity to go through the
minutes of the ABZA meeting. They went through this subject pretty thoroughly. Written into
the record of that meeting are numerous letters from people that support the granting of the
special exception. Your Council, Mr. Palmer, has suggested to you that your review be limited to
the four(4) statutory exceptions for granting this. The ABZA found that it met all the legal
4
requirements for granting a special use. One (1), with the appropriate written commitments, the
proposed use should not impact public health, safety, or general welfare of the community. The
owner has presented written commitments concerning the use of the property, and that is the key
to the case before you. I wouldn't have brought this before you without coming to you with
something like this. When the Council gets one of these `hot potato' issues, you've got to be able
to deal with it in a way where you can control the granting or denial of the special exception. Mr.
Masters stated the three (3)proposed written commitments. They are: One (1)—No music will
be played on the outside deck or anywhere outside of the building premises. He stated, We are
open to finding language that will be most agreed upon but I think no music is pretty clear. No
music means no music. Two (2)—The use of the deck will close at 11:00 p.m. every night the
bar is open. Three (3)—There will be no parking on the site due to the parking adjacent to the
building.
Mr. Masters continued, So with the written commitments in mind,the second criteria is met. The
approval of the special exception should not affect the use or value of adjacent properties,
provided the written commitments are fully executed. The site has been a long-standing business
and operation for many years. The third criteria is met as well. The proposed use is located in an
area with a mix of Single-Family, Multi-Family and Mixed-Uses. The use is consistent with the
neighborhood and the character of the neighborhood. The fourth criteria is met as well. The
proposed use is compatible with the future land-use plan within the City. This references the
November 2006 City Plan, which identifies property between Harris Street and Walnut Street as
low-density residential, high-density residential, and Mixed-Use. Certainly based on what we
present tonight we will find what the Area Board of Zoning Appeals found, and that is granting
this exception will meet all four(4) statutory criteria,particularly with the commitment that
limits the use of the property. We look forward to your favorable action.
Committee Chair Davis opened the floor to questions from Committee and Councilmembers for
the presenter.
Councilmember Regina Williams-Preston asked, Who enforces the written commitments?
Committee Chair Davis requested someone from the City Administration to, at the 7:00 p.m.
Council meeting, speak to this question with regard to what enforcement means.
Mr. Masters replied, You do know that your rules and ordinances specify how these
commitments have to be drafted and who has the right to enforce them. These commitments state
they can be enforced jointly or separately by the Area Board of Zoning Appeals, The City of
South Bend, or owners of property within three hundred(300) feet, which is what your ordinance
says.
Committee Chair Davis, I would still like tonight for someone from the City Administration to
comment on the enforcement.
Committeemember Broden asked, Since these commitments are different from any other bar that
has a deck, do these commitments put your establishment at a disadvantage business-wise?
5
Mr. Masters replied, Tonight you will hear from a number of clientele. They just want to be able
to sit outside and enjoy an adult beverage. Mr. Burg's competitors are within walking distance
and one (1) of them has a huge outside beer garden. Mr. Burg's establishment is not a huge
place. The patrons want to have a place where they can go and, on nicer days, sit outside and
enjoy an adult beverage. He made mistakes early on by using the deck for bands and music, and
he has learned not only that isn't what he wants but it wasn't compatible with the neighborhood.
Mr. Burg is fine with the commitments.
Committeemember Broden then asked, How might this affect other legal non-conforming uses?
Mr. Masters replied, This is specific to this establishment and primarily,the use of the outside
deck. A bar is allowed to have an outside deck, it is just that this one (1) didn't have a deck,they
built one (1), and it was considered an expansion. We are asking for something we don't
currently have, arguably.
Committeemember Ferlic stated, I apologize. Aladean DeRose and I had been working on
language and she was supposed to share that with you and it included the word `broadcast' to
ensure there not to be any music not only being played on the patio but also being broadcasted
onto the patio. I will work with Ms. DeRose and Council Attorney Palmer and we will present
some language to you before the 7:00 p.m. full Council meeting tonight.
Committee Chair Davis opened the floor to members of the public wishing to speak in favor of
or in opposition of the legislation.
Linnie Caye, 821 S Walnut Street, stated, You have to imagine having an outdoor night club
within three hundred (300) feet of your home. With approximately twenty(20)to twenty-two
(22)people,this zoning petition for a special exception might be the only protection we have as
residents for peace and tranquility against the potential disruption of this one (1)multi-
millionaire business-owner and his desire to reuse his deck as a night club. Nearly a dozen
residents have complained over the years.Nevertheless,the voice of even one (1) of the
resident's complaint should take precedence over a business in a residential area. The statements
from patrons who do not live from within three hundred (300) feet of the bar should be
irrelevant. The denial of the special exception will not shut down or adversely affect the bar. It
will simply force the owner to use the bar as it has been used for decades, without a patio. I urge
you not to reward him for his blatant disregard for rules and regulations. Residents in my
neighborhood have coexisted with a number of bars for decades. None of these bars have
conducted business with an outdoor night club. Regardless of what commitment clause is made
with relation to the deck, he has clearly demonstrated his disregard for the law by not obtaining
the zoning approvals before he built and then by using the deck even after knowing it was illegal,
forcing the City to obtain a motion to cease the use. He has also demonstrated on how he intends
on using the deck, indicative of the past three (3) disruptive years. He has not proven himself to
be trustworthy and, therefore, should not be granted the special exception use. Since he violated
zoning for two (2) years, what indication has his behavior provided to give cause for anyone to
believe that he will not violate again? Maybe he knows that playing music and having patrons on
the deck past 11:00 p.m. is a violation that will be extremely difficult if not, impossible,to
enforce. The South Bend Police Department will have no jurisdiction to enforce a violation of a
6
commitment clause in a zoning petition. Zoning and Code will need to observe the violation in
order to cite and their authority is limited to citing and issuing fines. They have no jurisdiction to
request a cease and desist. Once again,residents will be held hostage by one (1) business. They
want this petition to be approved because he knows that if he violates the commitment clause, it
could take years before he legally has to stop. Or maybe he knows he would then be unstoppable.
Either way, all the residents in a residential area lose to one (1), single, disruptive business.
Maybe the existing zoning ordinance was written to help protect residents from this type of
problem and, if so, I'm urging you not to allow a special exception to take away our only
protection.
Committee Chair Davis turned the floor back to the Committee for further comments or main
motions. Committeemember Ferlic made a motion to send Bill No. 17-37 to the full Council with
no recommendation. Committeemember Voorde seconded the motion which carried
unanimously by a voice vote of four(4) ayes.
With no other business, Committee Chair Davis adjourned the Zoning and Annexation
Committee meeting at 5:48 p.m.
spe y S e ,
vi ommittee Chair
7