Metropolitan Board of Zoning Appeals Division III Public Hearing – February 18, 2020

The Metropolitan Board of Zoning Appeals (BZA) Division III held a public hearing on February 18, 2020, at 6:15 PM, chaired by Craig E. Von Dalen. Board members present included Marisal Govea, Anatoly Tony Boschenko, Janice Golson Dunlap, and Beth Whitaker. Legal Counsel Chris Steinmetz and Division of Planning staff, including Senior Specialist Heather Stevens and Principal Planner Larry Callaway, supported the proceedings. The board heard two continuance requests, one automatic continuance, two expedited cases, and four variance petitions, approving all but one with conditions.

Consent Calendar

• 2020 DV 3003 (325 West Morris Street and 350 Kansas Street): An automatic continuance to the March 17, 2020 hearing was acknowledged by the board without objection.

Public Comments & Testimony

• Fountain Square Neighborhood Association (Josh Martin, 1229 Spruce Street): Expressed support for residential development on the Calvary Street properties but requested a covenant requiring adherence to D5, D52, or D8 residential standards, citing concerns about open space and stormwater mitigation. Martin noted drainage issues in the neighborhood, including water reaching the top of the sidewalk at Orange and Spruce during rain.
• Councillor Kristen Jones (District 16, 714 Shepherd Street): Stated support for the Fountain Square Neighborhood Association's position and their due diligence process on both Calvary Street petitions.
• Natalie Records (CEO, Collaborative Behavior Solutions): Expressed that the Arlington Avenue facility provides applied behavior analysis services to 23 children with autism and supports nearly 40 staff. She described CBS as a neighbor that enhances the area and warned that denial would remove unique opportunities for children with autism.
• David Rutherford (property owner and attorney, 8801 Southeastern Avenue): Expressed appreciation for staff and community support on the Southeastern Avenue sign variance, noting the project took four and a half years and involved door-to-door collection of signatures.

Discussion Items

• Continuance Requests: Joe Calderon (11 South Meridian) requested a continuance for 2019 DV 3044 (6139 West 79th Street) to March 17, 2020, citing ongoing negotiations with the Pike Township Residents Association and a neighboring property owner; Murray Clark (300 North Meridian Street) supported the request. Justin Kingan (618 East Market Street) requested a one-month continuance for 2020 DV 3001 (2050 Carrollton Avenue) to allow more time to meet with neighborhood groups and staff. Both continuances were approved without additional notice.
• 2019 DV 3004 (8602–9010 Southeastern Avenue): David Rutherford sought a variance to legally establish and replace existing wall, pole, monument, and pylon signs within the 15-foot setback and right-of-way, with a 10-foot setback from the back of the curb. The property, in Franklin Township, is zoned D3, C4, C4, Flood Fringe, C5, SU1, and SU10. Rutherford explained that the historic village of Wanamaker was built along former State Highway 421 with a 100-foot right-of-way, leaving most signage nonconforming. Staff recommended approval with four conditions, which the petitioner accepted. The board approved the variance unanimously.
• 2020 DV 3004 (759 and 761 South Sherman Drive): Andrew D. Baroker represented Geiger and Peters, an I-4 industrial steel manufacturer operating since 1954. The petition sought to expand an industrial building with a 30-foot north side transitional yard and legally establish an existing nine-foot yard, versus the required 50-foot side transitional yards. Baroker noted 97 notices were sent to neighbors with no objections, and four neighbors called in support. Staff had no additional comments, and the board approved unanimously.
• 2019 UV 3010 (2630 South Arlington Avenue): Justin Kingan and Natalie Records represented Collaborative Behavior Solutions, seeking a variance for a behavioral analysis facility for autistic children, a trash container in the front yard, and a sign (sign request withdrawn). The use is not permitted in the D3 zone. CBS provides in-home and wraparound applied behavior analysis, with up to 40 hours per week per child. Staff recommended denial, citing the intensity of the use (up to 25 children and staff in summer), parking concerns, and inconsistency with the comprehensive plan's suburban neighborhood typology. The petitioner rebutted that peak on-site children number only 7–10 at a time on a six-acre site, and offered a commitment to return the property to residential use if CBS vacates. The board approved 4–1, with Marisal Govea dissenting, and directed that the commitment be memorialized in revised findings.
• 2019 UV 3016 (1024 Calvary Street): Mark Crouch sought a variance for a two-family dwelling with a five-foot front setback and three- and five-foot side setbacks (30-foot front and 20-foot side setbacks required) on an I-4-zoned property. The Fountain Square Neighborhood Association and Councillor Jones requested a covenant to meet D5/D52/D8 standards. Staff noted the surrounding area is D8-zoned and recommended approval, but suggested D8 standards would be more appropriate than D5. The board approved unanimously.
• 2019 UV 3017 (1018 Calvary Street): Adjacent to the previous petition, this sought a two-family dwelling with a five-foot front setback, four-foot side setbacks, and detached garages with three-foot side and five- and eleven-foot rear setbacks. The neighborhood raised stormwater concerns, noting limited green space and tree planting opportunities. Staff recommended approval, noting 47% open space if D8 standards applied. The board approved unanimously.
• 2020 DV 3002 (1431 Lexington Avenue): Mark Crouch and Joe Belaski sought a variance for an 816-square-foot secondary dwelling over a three-car garage, exceeding the 720-square-foot maximum. The property is zoned D5 and located in a transit-oriented development area. Staff recommended denial, arguing the size could be reduced to 714 square feet without a variance and that the large garage conflicts with the comprehensive plan. The petitioner argued that the design, including the stairwell placement, justified the size and that the carriage house would serve visiting family. The board approved unanimously, overruling the staff recommendation.

Key Outcomes

• 2019 DV 3044: Continued to March 17, 2020, without additional notice.
• 2020 DV 3001: Continued to March 17, 2020, without additional notice.
• 2020 DV 3003: Automatic continuance acknowledged.
• 2019 DV 3004: Approved 5–0 with four conditions.
• 2020 DV 3004: Approved 5–0 with no additional conditions.
• 2019 UV 3010: Approved 4–1 (Govea dissenting), with a commitment that the variance applies only to Collaborative Behavior Solutions and the property reverts to residential use upon their departure; revised findings to be adopted.
• 2019 UV 3016: Approved 5–0.
• 2019 UV 3017: Approved 5–0.
• 2020 DV 3002: Approved 5–0, despite staff recommendation for denial.

The meeting adjourned with a note from staff expressing hope that all five appointed members of Division III would be present at the March hearing to elect new officers.