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REGULAR MEETING July 24, 2017
<br /> controversy regarding this particular piece of property. I can't remember, in recent history,when
<br /> any bar or even any business in South Bend has occupied so much attention in the local media.
<br /> Mr. Masters continued, I want you to take a look at a couple of things from Mr. Burg's
<br /> perspective. When Mr. Burg acquired this property in 2014,he went to the City Building
<br /> Department to obtain a permit to build the deck. Mr. Burg was told that no permit was required,
<br /> because no permit was required for a deck that was under three (3) feet off the ground. After Mr.
<br /> Burg built the deck and began using it, and the neighbors started to complain,the City said the
<br /> deck wasn't permitted. The Building Commissioner told you before, at the committee meeting
<br /> two (2)weeks ago,that that was a mistake to issue a permit for the deck. Yeah, but whose
<br /> mistake? Mr. Burg applied and obtained a permit from the Building Department to replace the
<br /> six (6) foot fence on the side of the property along Harris Street that was in disrepair. After he
<br /> replaced the fence, the Building Commissioner decided that the fence should be three (3) feet
<br /> high, because what is the side of the yard,the Building Commissioner said, is the front yard. To
<br /> make it even more difficult for Mr. Burg,the Alcohol and Tobacco Commission regulations
<br /> require the fence to be seven(7) feet off the ground, because of the deck. So, Mr. Burg applied
<br /> for the variance for the fence, and the ABZA approved that variance. Because of the complaints
<br /> against the property,primarily from one (1) neighbor,the property was labeled a"chronic
<br /> problem property."Now, understand: in your City rules,to be a chronic problem property you
<br /> don't have to be found guilty of anything, you don't need to be convicted of any violations—all
<br /> you have to have is someone call and make a lot of complaints about you, regardless of whether
<br /> they are valid. The complaining neighbor apparently knows that all it takes to get Mr. Burg's
<br /> business in trouble with the City is just to,keep calling the police and every other City
<br /> department.
<br /> Mr. Masters continued, In May, 2016, Mr. Burg signed a remediation agreement with the South
<br /> Bend Police Department—and this was to address citations that had been issued. Again,none of
<br /> them brought ever reduced to any judgment or conviction. That agreement was in effect from
<br /> May, 2016 through November, 2016. There were no additional violations during that time. The
<br /> remediation agreement was satisfied in November, 2016. The effect of complying with the
<br /> remediation agreement was to have all prior citations rescinded. That remediation agreement
<br /> specifically stated that Mr. Burg was allowed to have outside music on the deck until 11 p.m. so
<br /> long as he gave notice to the neighbors, and the volume of the music was within City decibel
<br /> meter guidelines. The ink was not dry on that agreement before the City sued Mr. Burg for
<br /> having music on the deck. So, we are here with this petition to try to resolve the problems that
<br /> address the neighbor's concerns and,hopefully, yours. As your counsel has told you, when the
<br /> Common Council considers a special exception,your role is valid before the Zoning Appeals.
<br /> You must determine if the statutory standards for granting a special exception will be met based
<br /> on the evidence you hear. The offered commitments exceed any other legal requirements and are
<br /> intended to appease any neighborhood concerns. These commitments offer protection for the
<br /> surrounding neighbors.
<br /> Mr. Masters continued, You may hear from a number of supporters of Mr. Burg's petition. You
<br /> will also hear from an impassioned opponent. You know, I'm personally all in favor of people
<br /> who come before the public and speak out on matters that affect their lives and their property. I
<br /> admire those people; I occasionally represent opposition in hearings just like this. But I would
<br /> hope, and I would expect,that people who speak against this petition will present truthful facts—
<br /> not make up statements—and be accurate in what they tell you. I'm sure you're going to hear
<br /> tonight all about things that happened in 2014 and 2015.Now, granted,there may have been
<br /> some mistakes along the way that got us to where we are,now. Mr. Burg could—and probably
<br /> should—have done some things differently when he first opened,but now the main argument of
<br /> the opposition is that Mr. Burg should not be rewarded for his past conduct. Certainly, none of
<br /> you believe that. That argument has nothing to do with whether the four(4) statutory criteria for
<br /> granting a special exception are met, and that argument absolutely flies in the face of the legal
<br /> requirement that you base on your decision on the statutory criteria for granting a special
<br /> exception. The Area Board of Zoning Appeals sent you the special use with a favorable
<br /> recommendation. The staff of the Area Plan Commission also recommended approval. The
<br /> ABZA found the special exception meets all of the legal requirements for granting a special use:
<br /> one (1), whether the proposed use will be injurious to public safety, comfort, community moral
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