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HomeMy WebLinkAbout03-08-04 Zoning & Annexation Zoning and Annexation Committee The March 8, 2004 meeting of the Council's Zoning and Annexation Committee was called to order by its Chairperson, Council Member Ervin Kuspa,at 4:27 pm in the Council Informal Meeting Room. Persons in attendance included Council Members Dieter,Pfeifer,Kelly,Puzzello, Varner,Kuspa, Coleman,Kirsits, and White,Jeff Myers, Building Commissioner Don Fozo, City Clerk John Voorde, Timothy Hughes,Richard J. Deahl,Mike Morris, Terry Bland of the SoutR'Read TitibuKe,and Kathleen Cekanski-Farrand, Council Attorney. Council Member Kuspa noted that the Committee consisted of Council Members Puzzello,Kelly,Kelly and himself. Council Member Kuspa called for a presentation on Substitute Bill No. 3-04 which is a rezoning request for the property located at 234 Tonti Street. Jeff Myers of the Area Plan staff noted that the Area Plan Commission held its public hearing on February 17,2004 and sends the Bill to the Council with an unfavorable recommendation. The Commission believes that permitting a two-family zoning in a single-family neighborhood would not be desirable. The property would be zoned SF2 Single-Family under the new zoning ordinance. (report attached). The petitioner, Timothy Hughes,then addressed the Committee. He noted that he lived at the property for seven(7)years but does not live there currently. He stated that he has improved the property and that people are "getting excited over a definition". He noted that he needs to refinance the property in light of the property taxes. He circulated a petition signed by ten(10)people in favor of the proposed rezoning. He noted that he is maintaining the property "very well". In response to a question from Council Member Dieter, it was noted that Mr. Hughes contacted twenty(20)home owners near the site with several not being home. Council Member Kirsits stated that the North Shore Triangle Association is against the proposed rezoning. They believe that the zoning should not be for a duplex. They understand that Mr. Hughes needs to refinance the property but they are concerned that if the property is sold that it could become a tri-plex which is located in the middle of single-family residences. Council Member Kirsits noted that it appears that the situation is similar to the one in the northwest which was later withdrawn. Mr. Fozo stated the if the property is a legal non-conforming use in existence prior to 1968 then it would be protected and a rebuild letter could be issued once the new zoning ordinance becomes effective. If it is not a legal non-conforming use then information would have to be submitted, a petition would have to be filed for BZA consideration as a special exception with the Council having the final authority in the area, once the new ordinance is in place. i Zoning and Annexation Committee March 8,2004 Page 2 Council Member Coleman noted that the new zoning ordinance will be in place in the "very near future"and that it is his understanding that none of the amendments being proposed by the Area Plan staff affect this area. He noted that Mr. Lee on California Avenue was faced with a similar situation. Council Member Coleman stated that he believes that the new ordinance may accommodate the situation. In response to Mr. Hughes' question, it was noted that proof of a legal non-conforming use included tax records,tax papers for assessment and city directory information showing a double address. City Clerk John Voorde noted that the Assessor's Office has records from 1949, 1962 to 1968, and recommended that the petitioner could access information on the property through the township assessor's office. The Council Attorney noted that the Council has ninety(90)days from the Area Plan Commission's action to take action on this substitute bill. Following discussion, Council Member Coleman made a motion, seconded by Council Member Kelly that Substitute Bill No.3-04 be continued until the April 26th Council meeting, at the request of the petitioner,Mr. Hughes. The motion passed. Council Member Kuspa then called for a presentation on Bill No. 13-04 which is a zoning request for the property commonly known as 508-536 Crescent Avenue. The Council Attorney noted that she had discussions with the Area Plan Staff and because Bill No. 13-04 would correct a scrivener's error in the legal description it was determined that the petitioner would not have to file an ordinance which would be sent to the Area Plan Commission and then back to the Common Council. Mr. Richard J. Deahl, a local attorney made the presentation. He stated that after the Common Council passed a prior ordinance on the same property on February 9th, a scrivener's error was found in the legal description. The proposed ordinance correct the legal description. Council Member Coleman made a motion, seconded by Council Member Kelly that Bill No. 13-04 be recommended favorably to Council. The motion passed. Council Member Kuspa then called for a presentation on Bill No. 04-29 which would approve a petition of the South Bend Board of Zoning Appeals for the property located at 1020/1022 S. Webster. Building Commissioner Don Fozo stated that the Board of Zoning Appeals sends the petition to the Council without recommendation. Mr. Fozo rioted that since the BZA meeting the 'Wig/ Zoning and Annexation Committee March 8,2004 Page 3 Administration believes that the request with the commitments to be provided would not constitute a transfer station. Dumpsters would be handled at the site. The Council Attorney asked Mr. Fozo what definition was being used for a"transfer station",noting that the term is not defined in the Zoning Chapter of the South Bend Municipal Code,but that it is defined in Chapter 4 addressing licensing. Mr. Fozo confirmed that"transfer station" in not defined in the zoning ordinance and that the operation with the commitments would not be required to be licensed under the local city ordinance. Council Member Kuspa expressed concern in light of the fact that"transfer station"was used throughout the petition and resolution pending before the Council. Mr. Thomas M. Walz,the attorney for the petitioner Juno!!Ltd. then addressed the Committee. He stated that they are seeking a special exception for the use of the containers. His client acquired the property on Webster and plan to make"extensive rehabilitation"to it. He noted that the sent a letter dated March 4, 2004 to Catherine Brucker(copy attached)which among other things to limit their request to permit the storage of dumpster containers overnight for transportation to the applicable landfill the next business day; and to not transfer from one container to another. Mr. Walz then circulated a letter dated March 5, 2004 from Aim-Carol Nash in the Department of Law(copy attached) which states among other things that"...it does not appear that your client's operation will fall within the definition of a transfer station, and it will not require a license under Section 4-51 of the South Bend Municipal Code". Mr. Walz also circulated a letter dated March 8, 2004 from Donald F. Fozo,Building Commissioner which states in part that"It is this office's opinion that the proposed use and commitment on the use would not classify the operation as a transfer station". Since the property is zoned E-Heavy Industrial a special exception would be required. Mr. Walz stated that he does not believe that this would impact the residences;that there would be no fossil waste involved;that they plan to address drainage and black top the area; renovate the offices,etc. He noted that it would be an undue hardship if they do not get the special exception. Construction waste needs to be addressed and his client would do that. He stated that Michigan landfills may not be accepting out-of-state waste in the future; and that it takes an hour each way to travel to the local landfill whose hours are 7-4. The Council Attorney noted that Section II of the resolution as presented written does not address any of the commitments referenced by Mr. Walz. At a minimum that section should have language such as "subject to the commitments set forth,in Section V of this resolution" Zoning and Annexation Committee March 8,2004 Page 4 being added and then a new Section V should be incorporated and present Section VI being re-numbered. She also noted that the petition references "transfer station" and should be amended. Mr. Walz stated that his client prepared the petition themselves,and that they do not want to start a new process. Council Member Kuspa then opened the hearing to comments from the public. Mr. F. James Hammer,President of Imagineering Finishing Technologies,which is located at 1302 West Sample Street then addressed the Committee. He stated that he protests having another transfer station noting that the west side has enough of them. He stated that g g g Reinke owned the property in question for over 100 years and that the property was sold as "distressed property". He noted that there are Phase II issues addressing environmental concerns and that due diligence required a Phase I audit addressing pollution issues. Mr. Hammer stated that there has been substantial investment in surrounding properties in the general area. He questioned how the property in question would be monitored and policed if it is"not a transfer station and would not be licensed by the city". Mr. Hammer stated that Imagineering Finishing Technologies had 32 employees in 1996 and today has 52 employees. He then provided handouts to the Committee(copy attached),the first being a picture of a typical dumpster without a lid which is used by the petitioner, and a 6-page handout which included a summary of his company's operation and five pictures of the petitioner's property. Mr. Hammer stated that Code Enforcement must not know that Wesbster exists in light of the many code violations depicted in the pictures. He stated that he is concerned about property values of his and others property if the city permits the request. Mike Morris of 1420 S. Walnut then spoke in opposition to the Bill. He noted that he owns another business but is not a direct competitor of the petitioner. Storing and warehousing overnight he believes does constitute the petitioner's operation being a"transfer station". He then handed out a copy of 329 Indiana Administrative Code 11-2-47 defining"transfer station" (copy attached). He stated that if the operation falls under this definition that others could come into the property and use it. He added that approximately one(1)acre would be used which he does not believe is enough area in light of buffering, green space and that there would be blowing debris since covers to the dumpsters would not be required. In response to a question from Council Member Kirsits,Mr. Hammer stated that his operation may move to Blackthorne in the future but that they would keep there current location as a possible incubator. He must have good tenants and therefore he is very concerned about the proposed transfer station. Under rebuttal,Mr. Walz stated that there is no legal responsibility to have green space and that they did not cause the deterioration of the street. He noted that he has been straight-forward and that his client is willing to make the commitments referenced in his letter. He concluded that the City Attorney's Office has signed off on the petition and that he hoped that the Council would approve the petition. He stated that property would never look like Blackthorn and that because of the landfill hours they need the special exception. Council Member Coleman noted that there has been major investment in the area and that the Council should make sure that operations close by not be adversely affected. He stated that he would prefer to see the commitments in writing. The fears which Mr. Morris has highlighted also need to be addressed. Following discussion,Mr. Walz requested that the resolution be continued until the March 22nd Council meeting. Council Member Dieter stated that the Council needs clarification on what is a"transfer station". Following discussion,Council Member Coleman made a motion, seconded by Council Member Puzzello that Bill No. 04-29 be continued to March 22nd, at the request of the petitioner's attorney. The motion passed. Council Member Pfeifer stated that the Council utilizes the advise of their Council Attorney and that they will ask her for an opinion on the proposed transfer station. There being no further business to come before the Committee,Council Member Kuspa adjourned the meeting at 5:40 pm. Respectfully submitted, Council Member Ervin Kuspa, Chairperson Zoning and Annexation Committee KCF:kmf Attachments