Metropolitan Board of Zoning Appeals Division III Public Hearing - November 28, 2023

The Metropolitan Board of Zoning Appeals (BZA) Division III, chaired by Joanna Taft, held a public hearing on November 28, 2023, to consider petitions for variances of development standards and a use variance. The board acted on proposals involving fencing, residential setbacks, commercial signage, and a Dollar General Market in a transit-oriented development overlay district.

Consent Calendar (Special Requests, Continuances & Expedited Actions)

• The board unanimously approved a waiver of its rules to allow consolidated voting on expedited petitions.
• Continuances Granted: Petitions 2023 DV3040 (8850 E. 21st St.), 2023 SE3006 (1140 Dr. MLK Jr. St.), 2023 SE3005 (6179 E. 26th St.), and 2023 SE3007 (1841 Ludlow Ave.) were continued to the board's December 19, 2023 hearing.
• Other Administrative Items: A two-day notice waiver was granted for 2023 UV3021 (1838 E. Upler Ave.). An additional commitment limiting a proposed freestanding sign to 8 feet was accepted for 2023 DV3042 (6830 Lake Plaza Dr.).
• Expedited Approvals (Unanimous):
  • 2023 DV3042 (6830 Lake Plaza Dr.): Approved 5-0 for a third freestanding sign, subject to the 8-foot height limit.
  • 2023 UV3017 (5420-5418 McFarland Rd.): Approved 5-0 to legally establish a 19,966 sq. ft. parcel and allow a dwelling with reduced street frontage and side yard setbacks.

Public Comments & Testimony

Members of the public provided testimony on several agenda items, supporting or opposing specific variance requests:

• 2023 DV3039 (Fall Creek Rd. Setback): Neighbors Kenneth Beach, Fiona Devon, and Leno Puente opposed the request, arguing it violated the zoning code they complied with, degraded their viewshed, and raised traffic safety concerns on a road with a documented history of accidents.
• 2023 DV3041 (Roosevelt Ave. Skyline Sign): Vernon Compton of Brightwood Concerned Citizens spoke in opposition to prevent sign proliferation and protect community sightlines.
• 2023 DV3043 (38th St. TOD Variances): James Kane of the 38th & Franklin Road Neighborhood Association opposed variances, citing traffic safety risks and the need for the developer to adhere to established codes.
• 2023 UV3021 (Epler Ave. Commercial Vehicle Storage): Richard Oldham, representing Edgewood United Methodist Church, opposed the use variance, citing concerns over a commercial business operating in a newly rezoned residential area.

Discussion Items

2023 DV3035 (2305 N. Leland Ave.) – Fence Height Variance

• Proposal: A variance to permit a wooden privacy fence ranging from 8.5 to 9.5 feet tall within the front yards and a clear sight triangle. The maximum permitted fence height in this I-2 industrial zone is 3.5 feet, and encroachment into the sight triangle is not allowed.
• Petitioner Position (Philip Chambers / Pat Rooney): The fence is critical for security in a high-crime neighborhood (46218 zip code). Petitioner stated he was initially told a 10-foot fence was allowed. The petition included letters of support from 90% of neighbors and the Warren Township Development Association.
• Staff Position: Recommended denial. The fence is over twice the permitted height, creating blind spots and safety hazards.
• Outcome: Approved 4-1. (Taft, Bland, Binder, Bohannon voted yes; Rivera voted no).

2023 DV3039 (6422 Fall Creek Rd.) – Front Yard Setback Variance

• Proposal: A variance to reduce the required 84-foot front yard setback to 36.17 feet for a single-family dwelling, necessary due to severe topography (floodplain, steep slopes) on a vacant lot.
• Petitioner Position (Drees Homes for Sean Clausen): The site constraints make building with the standard setback impractical. Petitioner offered a heritage tree preservation plan.
• Remonstrator Position: Neighbors strongly opposed, stating they met the code at great expense and the variance would degrade their viewshed, reduce property values, and create a safety hazard.
• Staff Position: Recommended approval, noting the site's practical difficulties and a preference for the proposed side-yard garage configuration.
• Outcome: Denied 2-3. (Taft and Binder voted yes; Rivera, Bland, and Bohannon voted no).

2023 DV3041 (1409-1411 Roosevelt Ave.) – Skyline Sign Variance

• Proposal: A variance to allow a second skyline sign on the northwestern elevation of a building, where one skyline sign per elevation is permitted.
• Petitioner Position (Tim Oakes / Early Learning Indiana): The building’s location abutting a railroad makes other elevations invisible. The petitioner offered commitments to limit skyline signs to two total and prohibit them on the south facade.
• Remonstrator Position (Vernon Compton, Brightwood Concerned Citizens): Opposed, stating it would open a “Pandora’s box” for sign proliferation.
• Staff Position: Recommended denial, citing a lack of practical difficulty (modern wayfinding tools exist) and the risk of setting a precedent for sign proliferation on large buildings.
• Outcome: Denied 1-4. (Bohannon voted yes).

2023 DV3043 (7801 E. 38th St.) – Multiple TOD Variances

• Proposal: Five variances for a Dollar General Market in a Transit-Oriented Development (TOD) overlay district, involving building entrance spacing, lot occupancy, front building line, parking location, and driveway width.
• Petitioner Position (Misha Rabinowich / Joe Leonard): Strict TOD standards are incompatible with the site’s narrow configuration and location 300 feet from the transit line. The project, in a designated food desert, includes concessions such as narrowed driveways and a crosswalk commitment. Supported by the Warren Township Development Association.
• Remonstrator Position (James Kane, 38th & Franklin Road Neighborhood Association): Opposed the three principal variances, citing traffic concerns and code adherence.
• Staff Position: Split recommendation. Supported variances for lot occupancy and driveway width (reduced to 30 ft). Opposed variances for the 10-foot front building line (63 ft requested), parking in the front yard, and the remaining driveway width.
• Outcome (Split Vote):
  • Part A (Entry & Lot Width): Approved 4-1. (Taft, Bland, Binder, Bohannon yes; Rivera no).
  • Part B (Setback, Front Parking & Driveway): Denied 1-4. (Bohannon yes; Taft, Bland, Rivera, Binder no).

2023 DV3044 (2440 W. County Line Rd.) – Pylon Sign Height Variance

• Proposal: A variance to increase the height of a pylon sign from the 25-foot maximum to 35 feet for Norma’s Fine Wines and Spirits.
• Petitioner Position (John Reader / Brian Toy): The business was forced to relocate by the I-69 expansion. The new site is 25-30 feet below the highway grade with severely reduced visibility. Petitioner committed to no additional primary freestanding signs. No remonstrators were present.
• Staff Position: Recommended denial. The sign is intended for interstate visibility, beyond the street-level wayfinding purpose of such signage.
• Outcome: Approved 3-2. (Rivera, Binder, Bohannon voted yes; Taft and Bland voted no).

2023 UV3021 (1838 E. Upler Ave.) – Commercial Vehicle Storage Use Variance

• Proposal: A use variance to permit the outdoor storage of four commercial utility trailers with 14-foot cargo beds (exceeding the 12-foot limit) in a D3 residential district.
• Petitioner Position (Griselda Delgado / Jim Brown): The trailers are needed for a family roofing business. Parking at home provides security against theft. Petitioner offered commitments including a privacy fence, limiting the use to specific trailers, and tying the variance to the current owner.
• Remonstrator Position (Richard Oldham, Edgewood United Methodist Church): Opposed. The church rezoned the property for residential use before selling. Concerns included the nature of commercial vehicles and potential business expansion.
• Staff Position: Recommended denial. The use is inappropriate for a residential district. The claimed hardship is purely financial.
• Outcome: Approved 4-1, subject to the offered commitments. (Rivera, Bland, Binder, Bohannon voted yes; Taft voted no).

Key Outcomes

• Next Meeting: The board will reconvene on December 19, 2023.
• Continuances Granted: Four petitions were continued to the next hearing.
• Expedited Approvals: Two petitions were approved unanimously (5-0).
• Variances Approved: 2023 DV3035 (4-1), 2023 DV3044 (3-2), 2023 UV3021 (4-1), and 2023 DV3043 Part A (4-1).
• Variances Denied: 2023 DV3039 (2-3), 2023 DV3041 (1-4), and 2023 DV3043 Part B (1-4).
• The board acknowledged the service of departing member Paula Angarita Rivera.