Metropolitan Board of Zoning Appeals Division 1 Hearing - December 5, 2023

This public hearing of the Metropolitan Board of Zoning Appeals, Division 1, was called to order by Chairperson Peter Nelson. The board addressed several continuances, transfers, and expedited petitions, along with a contested appeal regarding the legal non-conforming status of a waste processing facility. The meeting included public testimony, staff presentations, and a vote on the appeal.

Continuances and Transfers

• 2023 DV1 56 (3777 West 69th Street): Continued to January 2, 2024, without additional notice, to allow the petitioner to present to the Pike Township Residents Association.
• 2023 UV1 026 (6524 Dover Road): Transferred to Division 2’s January 9, 2024 hearing with new mailed notice, due to petitioner’s travel conflict.
• 2023 UV1 021 (7040 Rockville Road): Continued to February 6, 2024, with new notice, to allow research and possible amended petition.
• 2023 DV1 058 (7215 East Thompson Road): Continued to January 2, 2024, with notice, at staff’s request for an additional variance.
• 2023 UV1 018 (5524 Georgetown Road): Moved to the expedited docket per agreement with staff and no opposition, with the understanding that the grant would not be subject to a site plan review.
• 2023 DB 104/59 (3835 East 96th Street): Automatic continuance to January 2, 2024, acknowledged due to a timely filing by an auto-registered neighborhood organization.
• 2023 AP 1002 (1001 North Rural Street): Automatic continuance acknowledged.

Fee Waiver Request

• Petitioner Cameron Parasuti requested a waiver of filing fees for petition 2023 AP 1001. Staff recommended against the waiver, noting fees had already been paid and the request was for a refund. The board took no action after hearing no motion.

Expedited Docket – Unopposed Petitions

• 2023 DV1 048 (1305 South Biltmore Avenue): Variance for a masonry fence encroaching into a clear site triangle.
• 2023 DV1 055 (5326 Riverview Drive): Variance for a detached garage and secondary dwelling unit in the front yard.
• 2023 UV1 018 (5524 Georgetown Road): Variance of use for a liquor store.

All were approved unanimously by ballot (no opposition noted).

Contested Appeal – 2023 AP 1001 (1511–1555 De Loss Street)

Cameron Parasuti appealed the administrator’s determination that the waste processing facility operated by Scott Isaacs (Kurt and Jerry Sewer Service/Commercial Grease Trap) is a legally established non-conforming use. The board heard extensive testimony.

Petitioner’s Position (Cameron Parasuti, supported by community members and elected officials):

• The facility processes grease trap waste and septage in a three-walled structure, causing odor, health impacts, and violations (four IDEM violations in April–May 2023, waste leakage beyond lot lines, and building condition violations).
• The property was vacant from 1984 to 1991, so the use was not continuous. Under the 1996 ordinance, a legal non-conforming use must have existed prior to 1969 and continued uninterrupted – which the site does not meet.
• The use should be classified as a solid waste facility, requiring a special exception in I4U district, not permitted in I2U.
• Performance standards (odor, waste discharge) were violated, and the facility is incompatible with the adjacent residential neighborhood.
• Elected officials (Councilor Zach Adamson, Councilor Kristen Jones, Representative Blake Johnson, Senator Andrea Hunley) submitted letters or spoke in support of the appeal, citing health and quality-of-life concerns.

Remonstrator’s Position (David Rutherford, attorney for property owner):

• The business is properly permitted under IDEM and handles only commercial grease trap waste (no human waste). The dewatering process is an accessory use to the primary plumbing business, established in 1992.
• The use was permitted by right in 1992 under the I2U district; 1996 changes do not retroactively affect it. There has been no abandonment – the use has continued since 1992.
• Violations have been cured; the business has made operational improvements. The owner is willing to adopt new technology (fractal tank) to further reduce odors, but the neighborhood’s enforcement demands are better handled by IDEM and health departments, not this board.
• Staff’s determination that the use is legally non-conforming is correct and should be upheld.

Staff Presentation:

• Principal Planner Eddie O’Neill and Planning Administrator Matt Pleasant explained that the I2U district allowed the use by right in 1992, prior to 1996 amendments. The use is legally non‑conforming based on 1992 establishment and continuous operation. Staff cited case law supporting that permit issuance history can factor into legal non-conforming status.
• Staff clarified that this appeal is about the administrator’s interpretation, not enforcement. A “yes” vote would overturn the administrator’s determination (favoring the petitioner); a “no” vote would uphold it (favoring the property owner).

Board Deliberation:

• Board members questioned the continuity of use, the relevance of the 1969 date, and the distinction between primary and accessory use. Staff confirmed that the 1992 establishment was as of right, and no abandonment was found. The board also discussed the burden of proof and that the appeal is a fact-finding question.

Key Outcomes

• Continuances and transfers were approved as outlined above.
• Expedited petitions were approved unanimously.
• Fee waiver request was denied (no motion made).
• Appeal 2023 AP 1001 was denied by a vote of 4–1 (Duncan, Catona, Duke, Nelson voted no; Witt voted yes). The board upheld the administrator’s determination that the facility is a legally established non-conforming use. The case will be continued for adoption of findings of fact.
• Revised findings of fact for a prior case (2023 UV1 102) were adopted.