Metropolitan Board of Zoning Appeals Division 1 Hearing - February 7, 2023

On February 7, 2023, the Metropolitan Board of Zoning Appeals Division 1 met at 18:15 to hear various petitions, including variances of use and development standards. The board, chaired by Peter Nelson with members David Duncan and Jennifer Witt, reviewed continuances, expedited petitions, and two contested variance cases. Several procedural actions and one indecisive vote resulted in continuations to future hearings.

Consent Calendar (Expedited Petitions and Unopposed Proceedings)

• The board unanimously approved moving petition 2023 DV1002 (902-922 N Capitol Ave) to the expedited docket after a request by petitioner's representative Joe Calderan. No opposition was noted.
• Petition 2022 UV1035 (6234 E Hannah Ave) was continued for 30 days to the March 7 hearing at the petitioner's request; staff had no objection.
• Petition 2022 DV1047 (409 E Morris St) was moved to the expedited docket after the petitioner submitted an amended site plan (reducing from three to two and a half stories) and staff changed recommendation to approval. The board acknowledged withdrawal of the three-story variance request.
• Four automatic continuances were acknowledged: 2022 DV1-062 (1012 Olive St) to March 7; 2022 SE1-002 (9140 E McGregor Rd) to March 7; 2022 DV1-063 (114 E 49th St) to March 7; and 2022 UV1-027 (300 E Fall Creek Pkwy) was withdrawn.
• The following expedited petitions were approved unanimously (3-0):
  • 2023 UV1001 (1344 S Belmont Ave) – variance of use for a triplex.
  • 2023 UV1002 (1090 W 23rd St) – variance of use for a daycare.
  • 2023 UV1003 (2962 N Delaware St) – variance of use and development standards for a triplex.
  • 2023 DV1002 (902-922 N Capitol Ave) – variance of development standards for a mixed-use building.
  • 2022 DV1047 (409 E Morris St) – variance of development standards for lot width and setbacks.

Discussion Item: Continuance and Transfer of 2022 UV1044 (5702 N College Ave)

• Petitioner Tim Schluge requested a continuance and transfer to Division 2 due to a quorum issue (member Duncan recused). Remonstrator Joseph Lisi (Meridian Kessler land use chair) objected because the case had been continued multiple times and neighbors were not notified. Legal counsel explained that without three voting members the case could not proceed. The board voted to transfer the petition to the February 14 meeting of Division 2. (Duncan abstained? Actually he recused, so only two voted? But transcript shows vote with Duncan recusing? Wait: The transcript says: "All right, board, we have a request to continue and transfer petition 2022 UV 1044... can I get a motion? So moved, wit. And a second, Duncan second. Motion and second, call for vote. Duncan? Duncan, yes. Wit. Yes. And Nelson, yes." This implies Duncan voted despite recusal? Possibly the recusal was for the merits, not procedural. Regardless, the transfer was granted.)

Discussion Item: Opioid Treatment Program Variance (2022 UV1-038) – 4010 W 86th St

• Petitioner Presentation: Joe Calderan (attorney) and Kristen Primo (Valley Vista Health System) requested a variance of use to operate a state-certified opioid treatment program (OTP) in a C1 office zone. They argued the facility functions as a medical office, but because it administers methadone, it falls under the definition of "methadone clinic," triggering a variance. The 500-foot separation requirement from protected districts is not met (160 feet to residential-zoned parcels), but those parcels are used commercially. A detailed plan of operation was submitted. Doug Hunsinger, executive director for drug prevention and chairman of the Indiana Commission to Combat Substance Use Disorder, spoke in support, citing Governor Holcomb's goal of placing an OTP within an hour's drive of every Hoosier. He noted that crime decreases near OTPs and that the facility has gone above outreach. Valley Vista already operates a successful OTP in Greenwood.
• Remonstrance: Susan Blair, president of the Pike Township Residents Association (PTRA), opposed. She stated the board of PTRA voted against the petition. She cited Indiana Administrative Code requiring strong community support, which she said was lacking. Data from the Marion County Public Health Department showed Pike Township had 5% of opioid deaths in Marion County, with 39 overdose deaths in 2022; she argued need is lower elsewhere. Five OTP facilities exist within 10 miles, including one 0.2 miles away. She argued the use is too intense for C1 zoning and should be in C4 or higher. Letters of opposition from Councilor Leroy Robinson, Crooked Creek Alert, and a petition from Pike residents were submitted.
• Staff Comments: Staff recommended approval, stating that the site's context (long-standing commercial use of nearby residential-zoned parcels, proximity to major commercial node at 86th and Michigan Rd) makes C3 or C4 uses appropriate. They did not believe the request would have a negative impact.
• Rebuttal: Petitioner provided support letters from Greenwood Mayor, Deputy Mayor of Public Health, and others. They noted additional outreach including a visit to KinderCare (which did not oppose). Dr. Simon Fung, medical director of the Greenwood OTP, distinguished methadone clinics from suboxone clinics, emphasizing the unique need and safety.
• Vote: The board voted 3-0 to approve the variance.

Discussion Item: Driveway Variance (2022 DV1-057) – 401 N Park Ave

• Petitioner Presentation: Brandy Wadi and Simone Mitchell requested a variance of development standards to legally establish a driveway providing street access to an existing detached garage (access from alley required) and to legalize side and rear setbacks of the garage. They noted similar driveways on the street and provided neighbor support signatures. They also committed to replant a tree removed during construction.
• Remonstrance: A representative from the Meridian Kessler Neighborhood Association (land use committee) stated the committee voted 6-0 in opposition and the full board unanimously opposed. The primary concern was that work was done without permits (driveway appeared first), and the driveway access from the street is inappropriate when alley access exists. The group did not oppose the setback portion.
• Staff Comments: Staff gave a split recommendation: approval of the existing setbacks (Part A), but denial of the street access (Part B). Staff argued that granting street access would be injurious to safety and welfare by increasing curb cuts and disrupting pedestrian experience, and that the petitioner could remove the concrete block and access from the alley. They noted the violation and lack of due diligence.
• Vote: The board voted separately:
  • Part A (setbacks): Approved 3-0.
  • Part B (street access): Received 2 no votes (Duncan and Nelson) and 1 yes vote (Witt), resulting in an indecisive vote. The petition was continued to the March 7 hearing for rehearing. Part A was also continued for adoption of revised findings of fact.

Key Outcomes

• All five expedited petitions were approved unanimously.
• Continuances and transfers: 2022 UV1035 continued to March 7; 2022 UV1044 transferred to February 14 (Division 2); four automatic continuances acknowledged.
• 2022 UV1-038: Opioid treatment program variance approved (3-0).
• 2022 DV1-057: Setbacks approved (3-0); street access continued to March 7 due to indecisive vote (2-1).
• Findings of fact for previous cases (2022 DV1-051 A and B) were adopted.
• Meeting adjourned after no further business.