REGULAR MEETING July 24, 2017
<br /> that this was always an option. Mr. Burg always had the opportunity to go before the Board of
<br /> Zoning Appeals and go before the Council and have his special exception use recognized and the
<br /> expansion then carried out into the outdoor area outside of the bar. So, there was never any
<br /> decision on my part that pushed them into that idea. It was always,something that was available
<br /> to them, and they determined, I suppose, during the pendency of the litigation pertaining to the
<br /> injunction that that was the avenue that they wanted to access at this point.
<br /> Councilmember Davis responded, Thank you for that. There has been some testimony,the last
<br /> few weeks,that the Building Department gave a permit and then said no... Councilmember
<br /> Davis asked Mr. Anderson to share with the Council and public the Building Department's side
<br /> of the story regarding the improper issuance of a permit,regarding the fence, as well as what led
<br /> to the injunction.
<br /> Mr. Anderson responded, I believe that Mr. Masters' representation regarding the permit for the
<br /> deck is correct. At one (1)point, Mr. Burg tried to determine whether or not he needed a permit.
<br /> Mr. Anderson explained that at the time it was assumed that the property was a residential
<br /> property, which has no deck requirements,.but it was actually in a Mixed Use District, so a
<br /> permit is required to have a deck. Mr. Anderson stated, At this point,that's sort of been shelved
<br /> because we've had the injunction on the way. As for the fence, I believe that there was not a
<br /> permit that was obtained initially. Later, there were conversations with the Building Department
<br /> and subsequently, Mr. Burg did obtain a permit for the fence. That was with the input with, I
<br /> think it was ATC—sorry, the State Excise Police—that determined that a seven (7) foot fence
<br /> was required. As far as the noise issue goes, the noise was sort of ancillary to the actual zoning
<br /> violation that the Building Department had-
<br /> Councilmember Davis asked Mr. Anderson to break down how the noise issue was ancillary.
<br /> Mr. Anderson responded, The zoning violation was the expansion of the use into the outdoor
<br /> area. Part of the expansion of the use into the outdoor area carried with it, then,the noise that
<br /> took place when that use occurred. And so, the injunction that was filed would have been filed
<br /> irrespective of noise, assuming that there was some other issue related to that use. Now, the noise
<br /> was necessary to show to the court,because it became an issue of the use and enjoyment of the
<br /> neighboring properties. So, it was sort of ancillary to the expanded use issue,but the true part of
<br /> the injunction was the expansion of the use, not the noise.
<br /> Councilmember Davis asked Mr. Anderson how long after the remediation agreement was the
<br /> lawsuit filed.
<br /> Mr. Anderson responded, So,the remediation agreement was entered, I believe, in late 'l 5. The
<br /> use of the deck stopped as a natural consequence of South Bend's weather, so we didn't hear
<br /> anything from about October,November, through April of 2016,presumably because no one was
<br /> using the outdoor area. So. I think it was sometime in April,then,that we received first contact
<br /> from a neighbor of the property, and after that contact the injunction was filed in, I think it was,
<br /> June, 2016.
<br /> Councilmember Davis asked, So, you heard something in April and you enforced it in June?
<br /> Mr. Anderson responded, That's correct, sir. It was either April or May, and the injunction was
<br /> filed in June. Mr. Anderson verified the date on which a letter was sent to Mr. Burg from the
<br /> City informing him of the potential of injunction should he fail to get noise levels under
<br /> control—June 6 h, 2016. As well, Mr. Anderson verified the date on which he received an email
<br /> complaining about an escalating conflict between patrons and members of the community—June
<br /> l Ott', 2016. Mr. Anderson stated,After that was received,the injunction was filed. I filed my
<br /> motion June 21St, 2016; I think I filed the complaint for injunctive relief within a day or two (2)
<br /> prior to that.
<br /> Councilmember Davis asked, You acted pretty quickly, when it came to that situation,based on
<br /> everything else, correct?
<br /> Mr. Anderson responded, Uh, yeah, I would say so.
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