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HomeMy WebLinkAbout07-10-17 Zoning and Annexation �SpUTF18�� d U d W PF.ACF. S �,e 1865 OFFICE OF THE CITY CLERK KAREEMAH FOWLER,CITY CLERK ZONING &ANNEXATION JULY 10, 2017 4:00 P.M. Committee Members Present: Oliver Davis, John Voorde, Gavin Ferlic Committee Members Absent: Jo M. Broden Other Council Present: Regina Williams-Preston, Karen White, Tim Scott, Dr. David Varner(late), Randy Kelly (late) Other Council Absent: None Others Present: Kareemah Fowler, Graham Sparks, Aladean DeRose, Elliot Anderson Presenters: Chuck Bulot, James A. Masters Agenda: Bill No. 17-37- Special Exception at 1502 W. Dunham Committee Chair Oliver Davis called to order the Zoning and Annexation Committee meeting at 4:00 p.m. He introduced members of the committee and proceeded to give the floor to the presenters. Bill No. 17-37- Special Exception at 1502 W. Dunham Chuck Bulot, Building Department with offices at 125 S Lafayette Boulevard, stated, At the July 5t'meeting, the Area Board of Zoning Appeals referred to you all a special exception to allow a tavern with two (2) variances. One (1) being to allow the exceeding of the three (3) foot maximum height for a privacy fence to seven (7)feet. The other is to allow the for the petitioner go from the required eighteen(18)parking spaces to zero on property located at 1502 W. Dunham. Committee Chair Davis asked, What is the timetable we have to address this issue? Mr. Bulot replied, You have ninety (90) days from the ABZA approval. Councilmember Tim Scott asked, Is there a court injunction with this property regarding the zoning?Also,we don't have the minutes from the ABZA meeting, do we? 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.SouthBendIN.gov JENNIFER M.COFFMAN ALKEYNA M.ALDRIDGE JOSEPH MOLNAR CHIEF DEPUTY/DIRECTOR OF DEPUTY/DIRECTOR OF POLICY ORDINANCE VIOLATION CLERK OPERATIONS Mr. Bulot replied,No,the minutes are not completed yet. However,the audio is available. Councilmember Scott continued, I'm not on the committee but I rather see this continued so we can get all the data. I would like to hear from Mr. Masters about the court injunction. I think in lieu of this and especially with Councilmember Jo M. Broden asking for the data that has lead up to this property,that information is not available. Committee Chair Davis asked, When will the audio be in written form? Mr. Bulot replied, I'm not sure. It could probably be available in say, a week. I can forward the audio still. Committee Chair Davis requested the audio and Mr. Bulot stated the audio will be given to Councilmembers by tomorrow, July 11. Councilmember Scott stated, I want to apologize for any confusion on the dates to this meeting. What we enacted about four(4) years ago was a fast-track approval process which took out about ten(10) days from the process. If there was an ABZA meeting, we would set at our previous meeting a timeframe where we could hear the legislation right after the ABZA meeting. There was a little confusion with this. We have gone through some transition in Council so we had some dates mixed up. We were trying to do the fast-track program. What it has done is it has allowed petitioners and businesses to move on with their projects ten(10) days sooner than possible. Mr. Masters and your client, if there was any confusion, we take responsibility for that. What we typically do, if everything is clear-cut and moving forward, we stick to that process. Whenever there has been something that needs detail or attention, we tend to ask for a continuance. James A. Masters,Nemeth, Feener, Masters & Campiti P.C. with offices at 350 Columbia St., stated, I am serving as attorney for Mr. Burg. Your Council,Mr. Palmer, was at the ABZA hearing on Wednesday afternoon. After the ABZA ruled, he said this would be coming before the Council in two (2)weeks on July4. So I told that to my client and he said he would be out of town at that time. I asked him if we want to move forward with this or not and he said yes, so he canceled his plans to be out of town that day. Thursday, I then find out that this was set for hearing for today. My client has arranged to have a number of people come tonight to speak on behalf of this petition. Are you going to tell those people that will show up tonight that you are going to continue this?Are you going to send me back to my office to call these people in the next hour? I don't think that is quite fair to my client. Mr. Masters continued, This is a petition for a special use exception to allow a tavern in an area zoned MU, Mixed Use. This is all necessitated because of a paper rezoning that was done by the City in May 2004. The zoning districts were changed. For decades,that has been a bar known most recently as the `Dunham Inn.' In 2004, they changed the zoning to MU, Mixed Use. This meant that any place that had been zoned that way is now a legal non-conforming use meaning, it can operate until there is a change. My client acquired the property in 2014 and wanted to put in an outside deck. He went to the City Building Department and asked for a permit and they told him he doesn't need a permit. My client builds the deck and the City then sues him for, among 2 other things,having the deck. The contention in the lawsuit is that the deck is an expansion of the prior use. It is non-conforming and, therefore, not permitted. The case was scheduled for trial last month. The City Attorney's office and I determined that perhaps a better way of going about this was to come forward to the Council and ask for the special exception. The only difference with the special exception is that the deck will be a permitted use. With the petition filed with the ABZA we also filed written commitments. The commitments assure there will be no live music on that deck at all and the deck will close at 11:00 p.m. every day the bar is open. As far as the lawsuit is concerned,there is conflicting evidence before the court right now. We have a bartender that signed an affidavit who says that under the prior operation, they used the backyard to serve drinks,play games and have music. The person who claims to be the prior owner signed an affidavit saying they didn't use the backyard. The court is going to have to hear all that and make a decision. The difference with your action is this. If Mr. Burg were to prevail in court and we can prove there was a prior use of the backyard, which would make this deck lawful,there would be no restriction on the use of that deck. This proposal comes with written commitments that are enforceable against not only him but any subsequent owner of the real estate. Again,the commitments are that there will be no music what-so-ever outside and that the deck will be closed at 11:00 p.m. You don't get that any other way. Committee Chair Davis asked, Let's say we pass this. With passing this, it comes with the commitments? Committeemember Gavin Ferlic asked, So if we do grant this exception,the lawsuit is dropped? Mr. Masters replied, It would make the lawsuit moot, yes. Committeemember Ferlic followed up, If we do not pass this, you would proceed forward with the lawsuit? Mr. Masters confirmed, That is correct. Also,there was a report done in the South Bend Tribune stating the tavern was a chronic nuisance violator. First of all, it only takes a lot of complaints to become a chronic nuisance violator, the complaints don't even have to be proven. My client entered an agreement with the City in effect from Maw through November 2016 to remediate any chronic issues. There has not been a single valid citation issued against this property for noise violations. There was one (1) citation issued by the South Bend Police that was rescinded because there was no proof they exceeded the noise levels. Part of the chronic violation agreement had required my client to maintain a decibel meter while they had music to determine if they were violating. Any time the police were called by the one (1) complaining neighbor, the police came out and verified they were not in violation. You get a person calling a lot and getting a lot of complaints, you become a chronic nuisance, even though you never violated anything. My client satisfied those requirements last November. Councilmember Dr. David Varner inquired,And that agreement was in writing? Mr. Masters confirmed, Yes. It was between the South Bend Police Department and my client. We are trying to resolve two (2)problems. One (1) is the lawsuit with the City and secondly, as the ABZA pointed out, by having the written commitments,to assure there be no adverse impact 3 on the surrounding neighborhood, which satisfies the requirements for granting the special exception. When you, as a Council, are here making the decision, you act as a Zoning Board. You have to make sure the special exceptions satisfy the three (3)main criteria. Primarily that there be no adverse impact on surrounding properties,that it is consistent with the other uses and is consistent with the comprehensive plan. We think this is a way of resolving and addressing all of the issues. Committeemember Ferlic asked, The language for the written commitment `no music shall be played outside,' does that include within the garage or within the bar playing out onto the deck? Mr. Masters replied,No music will play on the outside or anywhere outside of the building premise.No music outside,period. We were asked that question at the ABZA meeting too. They won't be propping open the doors or windows, either. They may have music inside but they won't have the door propped open. Committee Chair Davis asked, Is there a standard decibel meter that everyone is using? Mr. Masters replied, My client calibrated his with the South Bend Police so they both read the same. Mr. Masters also notified the Council of his willingness to amend the written commitments if need be. Committee Chair Davis asked if there was anyone to represent the City Legal Department. Elliot Anderson, City Legal Department with offices on the 12th floor of the County-City Building, stated, As far as it relates to the lawsuit,I don't have much more information. With regard to the request for the special exception use, I view that as a separate issue from the lawsuit. The lawsuit was filed to enjoin the owner of the property from using the outdoor area of the bar solely for that purpose. It was alleged to be an unlawful expansion of a legal non- conforming use. So there is currently a preliminary injunction in place but that is really the extent of the lawsuit. Committee Chair Davis asked, What is the normal practice of the City? Is that a typical action the City would normally take? Mr. Anderson replied, Ordinarily there are a few things that happen before we get there and in this case there were a number of citations that were issued relating to the unlawful expansion of the non-conforming use. The owner was generally unresponsive,there was the remediation agreement that was entered into but it was flawed in a way. It read as if it was authorizing the use of the outdoor area when there was no concession on the City's behalf that it could be used. The chronic remediation agreement has language in it that could be interpreted to suggest the City was condoning outdoor use of that property, which it was not. As Mr. Masters pointed out, subsequently there was injunction filed not long after the remediation agreement was entered but that was because the City remained steadfast in its resolve that the outdoor area could not be used, which is why the lawsuit was then filed. 4 Committee Chair Davis asked, And that document in question, who agreed to that? Mr. Anderson replied, I would need to take a look at the specific parties. I know that Tasha Reid- Outlaw formally was in my office and may have been the drafter of that document along with Keenan Lane from the South Bend Police Department. Councilmember Scott asked, Which other house is owned by the property owner? Mr. Masters replied, He owns the house next door. But I did want to mention one (1)thing. Mr. Bulot mentioned something about the variances with the fence and the parking. That is not an issue before the Council. Rather, that is an issue before the Area Board of Zoning Appeals. Councilmember Scott followed up, How long has the fence been there? Mr. Masters replied, It has been there for decades. We have pictures going back twenty(20) years of that fence. It has not always been at the height. Take a look at this from my client's viewpoint. He goes to the City and asks for a permit to build the deck and they say you don't need a permit, so he builds the deck and gets sued for building the deck. There was a six foot high fence along Harris Street which has been there for decades. Under that change of the zoning code that I referenced from 2004, the area is no longer considered the backyard but is now the front yard and the limit of a fence on a front yard is three (3) feet. So even this decades old six (6) foot fence is not lawful. So my client goes and gets a permit from the City to build a six (6) foot high fence and they sue him for having a six (6)foot high fence. Mr. Anderson interjected, Just to clarify that comment, there was no suit filed based on the fence. Mr. Masters replied, Yeah, it's in your lawsuit there, take a look at it. That's one (1) of the things you enjoined. That is one (1) of the things that Mr. Bulot testified about was that fence. We have a situation where we ask for a seven(7) foot high fence and the reason is because the excise has a requirement,the Alcoholic Beverage rules,that if you have an area outside where alcoholic beverages are being served, the fence must be six(6) feet high. Because this deck is a foot up off the ground, the fence had to be raised a foot. That's why we ask for the provision to have a seven (7) foot high fence, which was granted by the ABZA. The fence had originally been there for years and it was six (6) feet high and it now has another piece on it to make it seven(7) feet high. But, like I said,my client gets a permit to build it and then gets sued for building it. Committee Chair Davis stated, With all due respect I know you see them as two (2) separate issues but these situations seem very dependent on one (1) another. You just shared with us that there could be two (2) different interpretations of the documents that you signed. If there are clear issues where there could be two (2) interpretations, why did the City sue them when there are issues that could be made? Mr. Anderson replied, Are you referencing the agreement the City made with Robert Burg? The remediation agreement states, "...due to a number of nuisance calls resulting from complaints of loud music being played outside, the owner will limit the volume of outside music to at or below 5 the loud noise ordinance decibel limit with it to end by 11:00 p.m." With that language specifically, one could see how it might be thought that the City was condoning that action. Subsequently though, a letter was sent to Robert Burg following the remediation agreement and expressly informed him that it was not the City's intention to condone the use of the deck. Specifically, a letter that was sent by myself that states, "Please be advised the chronic problem property remediation agreement that you entered with the South Bend Police Department on or about May 19th, 2016 for nuisance related matters does not authorize you to provide outdoor entertainment in violation of the City Zoning Ordinance. Rather, should you be authorized to provide outdoor entertainment after following the proper procedure under local law, your remediation agreement will govern your use in accordance with the relevant noise and chronic problem property ordinances." Committee Chair Davis stated, Did you and the tavern have any conversation before this point? Mr. Anderson replied, We on several occasions made efforts to interact with Mr. Burg regarding this issue and to deal with it administratively. I know that at one (1)point Mr. Bulot had spoken with Mr. Burg over the phone and he also spoke with Mike Danch about preparing a special exception use application last year or two (2) years ago. But we found Mr. Burg to be generally unresponsive to the City's request to take action. Essentially,we were guiding him in this direction a couple years ago to legalize the use because we didn't believe that he could legally use the backyard area. So we made contact with him, issued citations, sent letters notifying him what it was he needed to do and he took no action, which afforded us no other alternative than to file an injunction and seek preliminary relief. Committee Chair Davis asked, So there was an agreement entered into and two (2) months later there was a lawsuit? Mr. Masters replied, What we did was when this was coming up for trial in early June 2016, we concurred to postpone the trial and instead petition for the special use, with the conditions that there would be no outside music and use of the deck past 11:00 p.m. That would resolve both the neighborhood complaints and would allow the use of the deck and make the lawsuit moot and avoid the need for the trial. Mr. Anderson stated, I think your question is also relating to why the remediation agreement occurred. Specifically, the temporal aspect of why the remediation agreement occurred. It does seem like not long after there was a suit filed. At that point there had been about ten(10) citations issued and the situation had been going on for several months with the Department of Code Enforcement, the Building Department and the Police Department all making contact with Mr. Burg. So it wasn't as if the issue suddenly arose after the remediation agreement was entered into. This is something that had been enduring for some time before that remediation agreement was entered into. The citations Mr. Masters are referring to are specifically for the noise. There were other citations issued relating to the unlawful expansion of the legal non-conforming use and the outdoor use of that area. The Building Department issued a number of citations,to my recollection, it was ten(10) in two (2) five (5) day periods. Committee Chair Davis asked, Were they found to be invalid? 6 Mr. Anderson replied,No they weren't invalidated. The City didn't pursue collection of the penalties because by that time we had sought injunctive relief through court action and we saw the citations as a preliminary step getting us toward that court action, should it be necessary. The citations were issued in hope that we could come to some informal resolution with Mr. Burg before we had to step foot in a courtroom. So after the remediation agreement was entered into, that letter I just read to you regarding my clarification of the purpose of the remediation agreement had another paragraph which states, "Unless you take appropriate action prior to the next Area Board of Zoning Appeals filing deadline of June 14, 2016, the City will seek to enjoin you from further use of the outdoor area at 1502 and 1504 Dunham. The pursuit of injunctive relief in accord of confident jurisdiction is an action authorized under Municipal Code Section 21-10 g(3)." So we advised him expressly through correspondence that if he doesn't do this thing,which he is now doing,then we will pursue an injunction against him. And he didn't file, so we did that. It wasn't a surprise, it was an issue that has been enduring for some time. Mr. Masters stated, The difference is that we've had a full year that has passed. Everyone has had an opportunity to step back. They've seen the operation of the bar. They've seen that in fact, even under this agreement with the South Bend Police there were no violations of the noise ordinance. You'll hear other people testifying about the operation of the bar but it's been going on for a full other year and things have all calmed down pretty much. It seems to me that this is the best way of getting a resolution that services everyone by agreeing to something that you can't get in court even if you win, which is not having music outside. By the way I'm not sure what more you need. This says "No music will be played on the outside deck or anywhere outside of the building premises." Councilmember Ferlic stated, Vague language is never ideal. `No music will be played' can be interpreted different ways. It might be good to get this airtight. Mr. Masters replied, If we start doing that stuff, then you are creating bigger problems. Just make it straight forward, there is not going to be any music outside,period. Here is the difference; I write it, I have to live with it. You write it, you have to live with it. If you start tinkering around with it, you may not end up with what was intended. The idea is that we're not going to put any music outside. Committee Chair Davis opened the floor to comments from the Committee or Councilmembers. Councilmember Dr. Varner asked, Is Mr. Bulot okay with the statements that have been made? Do you have conflict with regard to the issuance of the permit? Mr. Bulot replied, My only involvement in this is making sure the zoning ordinance is complied with. The issuance of the permit to build the deck was a mistake out of the Building Department office. That is a mistake with the physical deck. Along with that, what you have is a use violation because that is considered an expansion of the use. So when you do that,you are not allowed in a legal non-conforming condition to increase the degree of non-conformity, which the deck would be because there is evidence that it was being used in conjunction with the bar. 7 Committee Chair Davis asked, If there was a mistake, what kind of burden is on the City and what is the remedy of that? Mr. Bulot replied, Generally we will, if it is a mistake on our part, contact the owner and say, "We made a mistake on this." But with the deck, I believe they eventually got a permit. Mr. Anderson interjected, There is no permit that is required for the deck. That isn't a sufficient height to require a permit. Mr. Bulot replied,No. Mr. Masters interjected, Yes, the answer is yes, Chuck. Your regulations say you don't need a permit for a deck that is less than three (3) feet high. Mr. Bulot replied, And that is only for residential. Mr. Masters stated, Well, you told him that. When he went into the office to get a permit you told him he didn't need a permit. Councilmember Scott stated, There are many questions here and Councilmember Broden has concerns she has expressed to me. For the record, I would like to see a few things before I can make a decision on this. I would like to see the ABZA meeting minutes,the chronic nuisance agreement with the City and the court injunction, as well as the written commitments by the petitioner. I would like to get at least two (2)weeks before we make a decision. We need time to get the ABZA minutes. So with that, I would encourage a continuance to the July 24th, 2017 Council meeting. Commiteemember Ferlic made a motion to continue Bill No. 17-37 to the July 24th, 2017 Council meeting and requested the documents referenced by Councilmember Scott be provided prior to the July 24th,2017 Council meeting. This motion was seconded by Committeemember John Voorde which carried unanimously by a voice vote of three (3) ayes. With no other business, Committee Chair Davis adjourned the Zoning and Annexation Committee meeting at 4:37 p.m. 60Respe lly tted, liver Davis, Commit e Chair 8