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When only three of the five Warsaw Board of Zoning Appeals members are present, it takes all three to take any action on a petition.
Unfortunately for Harvey Hayes, his petition for a variance from development standards at 985 N. Lake St. was tabled Monday to the board’s November meeting after it became clear he wasn’t going to get a decision on his petition one way or the other from the three members present.
In presenting the petition, Assistant City Planner Leah Parker said, “The petitioner is seeking a variance from development standards to allow a gravel lot in a (Commercial)-2 zoning district. Pursuant to the Warsaw municipal code, all areas for parking and maneuvering should be graded for proper drainage, either paved or concrete. Any deviation from this ordinance needs approval from this board.”
While the properties across the street are out of the city’s jurisdiction, Parker said some of those businesses have gravel lots and none of the adjacent properties have voiced any opposition. The petitioner also will install concrete access to the lot in an effort to prevent gravel from getting onto the main road.
“So based on the information provided and the findings of fact, it is the opinion of the Planning Department to grant permission to the petitioner to allow a variance from development standards and allow a gravel lot in a C-2 zoning district, given the petitioner install a concrete access to mitigate gravel getting on the road,” Parker concluded.
Hayes, owner of H&L Motors and Decorative Beginnings, told the board, “Concrete and asphalt were suggested. Very expensive products. Once we put them in, we wouldn’t be able to put a building in there. Beyond that, proper drainage is actually better with the way we access the land. For gravel to be there, it’ll run off naturally and have some soak-in possibilities, also.”
The gravel also will still make for a good area to park cars and any equipment they have. He said they want to use Duraberm, a process gravel from Jack Owens. Hayes said the Duraberm stays in place better than the gravel does.
BZA member Duane Huffer asked him to clarify if he was going to build a building if they put asphalt there. Hayes said they looked at building a building there at one point in time, but Covid came along and “$600,000 was too much money to spend at this point in time.” He’s 82, doesn’t know what his kids are going to do and they didn’t want to “wander into that kind of cost on another building. Eventually, we’d like to put a building there, I think, but at this point in time, I don’t think it’s going to happen.”
Huffer asked him if he didn’t want to put concrete or asphalt down because of the expense. Hayes said that was one of the reasons. “Basically, if we put concrete in, going to have to bust it all up, redo everything to do everything the way we want to do it, I’m sure,” Hayes stated.
Huffer asked him what he wanted to do with the property. Hayes said at this point in time, he just wanted to use it for a lot for their excess, rental and sales vehicles. Eventually, down the road, maybe they’ll want to put in another mechanical shop there.
There were no remonstrators from the public so Board President Tammy Dalton closed the discussion to the public.
Huffer said, “I guess I understand what he’s saying, but the statute requires asphalt and concrete. It says we can deviate that with BZA (approval), but when we look at the order and ordinance authorizing us, it says that the board, in granting a variance from the terms of this ordinance shall determine because of particular physical surrounding shape or topography conditions of this specific property and unnecessary hardship to the owner would result as distinguished from a mere inconvenience or economic hardship. From the evidence I heard, it’s an economic hardship. Nothing he said with the land that would prevent it from being paved. So can we really do this under our authority?”
Dalton said she drove out to the property Monday. She asked Hayes what the surface was of his current parking lot where his business now stands. Hayes said there was a trail but the rest of it around there was gravel. Dalton said it looked like it served Hayes well for his needs.
Huffer said across the street is in the county, but repeated his question if Hayes wanted to use the gravel for an economic hardship, can the BZA allow it? Dalton said Hayes was coming before the board for an exception.
Board member Zach Tucker pointed out Hayes already has a similar setup as it is. Huffer wandered when that was put in and if he got an exception for that. Huffer wanted another reason to approve the petition other than an economic hardship.
City Planner Justin Taylor pointed out the property is in a flood plain, which could create practical difficulties for developing the site with a building. Huffer said Hayes doesn’t have any plans for a building presently.
Huffer then asked city attorney Scott Reust if he could provide the board with any information on their legal authority and if they can ignore the economic hardship.
“It means what you three think it means. I don’t define that for you,” Reust said. “It says ‘the strict application, the terms of the zoning ordinance will constitute an unnecessary hardship in the development and use of the property.’ You all get to decide each time whether the applicant has presented you with information that makes you think that’s true.”
Reust also said “there has been substantial case law and reference that an economic hardship alone is not a substantial hardship. If that’s the sole purpose.”
Huffer made a motion to table the petition to the November meeting.
“Clearly, I don’t think we’re going to get the votes tonight, so I’ll second that until next month,” Tucker said.
Dalton and Tucker both apologized to Hayes, with Dalton telling him that hopefully they’ll have a full board next month.
“And we have necessary evidence,” Huffer stated.
The motion to table passed 3-0, with board members Dave Baumgartner and Rick Keeven absent.
Petitions that were approved by a vote of 3-0 included:
• Richard Reynolds’ petition for a use variance to allow a used automobile dealership in a C-2 zoning district at 1002 E. Winona Ave. The property has been used as a car dealership in the past.
• Kim Obacz’s petition for a variance from development standards to allow a 2-foot setback in a Residential-2 zoning district at 607 Oldfather Road. She wants to put up a shed, but the city’s municipal code requires a 3-foot setback for an accessory structure adjacent to a lot, which wouldn’t leave her much room in between a shed and the patio.
There were no remonstrators to any of the petitions.
