Plan Commission

Culver Plan Commission – “Natural Grade”

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The June Culver Plan Commission was an interesting one. Most of the agenda was thrown out due to an appeal against the decision of the building permit on the establishment of “Natural Grade”. I put Natural Grade in quotes because that’s the way it appears in the ordinance, which was stated that way intentionally when it was written. So, I mostly sat quietly at the meeting, while biting my tongue. Here’s some history, from memory, of my involvement and how we got to where we are today. This tends toward personal rant, so be aware going in.

Somewhere around six acting Culver Building Commissioners ago, then Building Commissioner, Russ Mason, asked me to write something that defined the starting elevation on a site when determining maximum building heights. This had particularly come up around some of the lake lots with large slopes. At that time, the zoning ordinance definition of Natural Grade was vague. Builders would argue to use the highest point on the lot as zero for measuring height, but then show a house down the slope and include walk-out basements creating houses fully 35’ above the top of the slope, but dug out to create one or two stories further down facing the lake.

In discussions with the Plan Commission, it was determined that the base point for natural grade should be the center of the building, from which there should be no more than 35’ in height above that point and no more than 15’ of exposed structure below that point.

The methodology I came up with for this was fairly simple and covered options for new construction on undisturbed lots and for construction on lots where existing structures were to be removed. It includes illustrations to demonstrate how it should be done. The methodology for alternate interpretations was more rigorous. This was intentional as all involved felt like there should be significant effort put in if the decision of the Building Commissioner was to be overturned by the Plan Commission. It seemed likely that if the more rigorous information proved out a different number, then the Building Commissioner would acquiesce before it was pushed up the chain of command.

Why did this go to the Plan Commission rather than the BZA? The Plan Commission determined that this was an appeal of the Building Commissioners decision, not an appeal of the ordinance. This was an appeal of site condition determinations, not an appeal of ordinance requirements.

Based on my knowledge of the ordinance, the June meeting was quite interesting. I started out pleased to hear the attorney representing the property owner say the methodology in the ordinance didn’t allow for much interpretation. Yep. Intentionally. But then he glossed over the secondary methodology required for an appeal and basically said the Plan Commission could ignore the ordinance stipulations and set natural grade wherever they liked! Their request was to set Natural Grade at ~7’ above what was determined by the Building Commissioner, with no evidence that the previous determination was done incorrectly!

From there the presentation was more like a BZA hearing, discussing how it affected the neighbors, aesthetics, hardships that would force a single-story home in lieu of a two-story home. All this going back to the assumption that the Plan Commission could determine whatever Natural Grade they wanted. Again, despite specific methods for determining Natural Grade laid out in the ordinance. A couple commissioners then got off track, asking questions about constructability and building engineering, which are not in their purview. There was also a question about the ambiguity of the word “Natural” and how far back in history to go to figure that out…

In the end, the hearing was continued to the next meeting with a work session on the topic in between. After the petitioner left, the Town’s attorney, noted while the petitioner’s attorney was correct, i.e. the Plan Commission could set the grade wherever they liked, but they would be doing so without the petitioner following any of the methodology listed in the ordinance to make the appeal. And, while a court challenge was unlikely, going counter to their own ordinance, based on their feelings on the issue, wouldn’t past muster with a judge. He also noted that while there were no objections expressed at the meeting, there wasn’t the same notifications for this hearing that there would be for a BZA hearing. Considering that there were already disputes with neighbors regarding access to this site, it seems prudent to be sure. The Town Manager, currently acting as Building Commissioner, recognized this and requested the commissioners filled out findings of fact, much like they would if it were a BZA hearing.

In my mind, the questions about the ambiguity of the word “Natural” were a bit odd when the ordinance specifically referenced how Natural Grade was defined. The only thing that came up where it appeared that the ordinance was lacking, was that there is no accounting for fill on a site before Natural Grade is determined and a building permit is requested. At the time this was written, the Plan Commission felt this was covered by the requirement to obtain an Erosion Control Permit for any site work disturbing more than 500 square feet. This would have alerted the Building Commissioner to work being proposed and would have created documentation of changes. Over the years, that portion of the ordinance has rarely been enforced and definitely not documented in a way that would prevent this situation.

There is no doubt that this site is challenging. The previous Building Commissioner started this conversation with the property owner and had already raised the natural grade elevation up to the minimum elevation required above lake level due to a depression on the site. I’m not sure that they shouldn’t be granted some relief on this. There is significant grade difference between this site and the adjacent site, which has been filled. There are some significant drainage challenges. But those things are better addressed at the BZA with a height variance request.

I’ve discussed institutional memory here before. This is a different Building Commissioner and all different Plan Commissioners. No one is on the Plan Commission that knows how or why this was put in place in its current form. As they were advised by the Town’s attorney, there is nothing to stop them from rewriting this portion of the ordinance, but I feel like they are committed to uphold the current version until that time. Hopefully they take the time to read this section of the ordinance before their work session. They need to have an understanding of what it does. As the appeal attorney said, it leaves little room for interpretation. Intentionally. It has served the community well for close to two decades.

Culver Zoning Revisions II

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I wrote about the current round of revisions to the Culver Zoning Ordinance here. They were discussed and tweaked at the September meeting of the Plan Commission. A public hearing was held at the October Plan Commission meeting and a vote to send them on to the Town Council for approval was passed. As always, before I gently criticize, I want to start by giving kudos to people that volunteer for posts such as the Plan Commission. I appreciate them stepping up to work that is generally thankless. I always want to give them consideration and I will defend them on this, even when I don’t agree with them.

As a person that tends to attend meetings and pay attention to what’s going on, I don’t have a lot of patience for those that complain about things happening without their knowledge, when it has been advertised and presented in public meetings. Culver is above average in asking for input in most cases. In this case I may fault them for some large changes to the Zoning Ordinance that were probably not adequately advertised. As stated in the meeting notice to the right, a public hearing was properly advertised for “…amending the Culver Zoning Ordinance to correct clerical errors and make revisions.” I don’t fault them for thinking that what they added/changed were minor improvements, but not everyone will see them that way. That agenda item sounds pretty innocuous and for the most part it is, but there are a few things included that may end up causing some controversy:

  1. The first, which I mentioned in a previous post, is the change in accessory structure height for the S-1 District. This was a specific request from the farm community that has been carried forward. It allowed a 50′ accessory structure height without need for a variance. This was to accommodate grain legs on silos. Since that time, Culver created a specific AG district, but there is still some farmland within the S-1 district. Interestingly, the AG district only has a 35′ height allowed, but I’m pretty sure both should be at 50′ per previous conversations. This is a minor issue for these districts and are an easy accommodation to the farm community. Since a future goal in the Comp Plan is to expand our extraterritorial boundary, it just makes sense to play nice with that community. Slipping in a change is not playing nice. The Town Manager has been having meetings with the farm community, so a heads up on this would have been good.
  2. Another that may cause a stir with the extraterritorial land owners is eliminating the average setback requirement on lake frontage. This sentence being eliminated is, “Where property immediately adjacent on either side of the lot is already developed with principal structures, the required setback shall be determined by a line drawn between the farthest extension of the adjacent structures including any decks or raised patios.” Admittedly, this has been a controversial requirement and has spawned many BZA hearings, but it has been in place for decades. Many houses have been forced back from the lake because of this rule. House shapes have been changed to meet this rule. Where variances were requested, neighbors howled and called foul!!! I would be extremely upset if I had been forced to follow this rule sometime recently only to find out that it had been eliminated on a whim…
  3. Under the Development Standards and under Definitions, a new “Institutional” category was created and defined. This has been discussed for years and under the previous building commissioner, there was a subcommittee of the Plan Commission formed to work on this. At that time, the thought was that it affected both the private school and the public schools so representatives of both were included in the discussions. The new definition excludes the public schools, stating it is “Specifically for Culver Educational Foundation…” I don’t know if the public schools were consulted before being excluded, but it would seem they should be part of this.
  4. Under Intent, the language that set a minimum front yard setback of 10′ has been removed in favor of allowing the Building Commissioner to determine an “average” and allow that as the setback. This seems loosely defined and a potential issue. I understand the intent, which mostly refers to the average setback on a block and realistically one side of the block. But lawyers will be lawyers, i.e. block, neighborhood or zoning district? Both sides of the street? What if there’s an alley breaking up the block? Average implies the mathematical definition, but the intent is when 4 of 5 houses are 5′ off the sidewalk, the 6th one can be 5′ off the sidewalk too, but that’s not the “average” if one of the original five is setback 25’…
  5. Under definitions: Nuisance Building – Includes structures with appearances that detract from the neighborhood (such as properties that are not properly maintained, abandoned, structures covered with graffiti, or vacant buildings), as well as properties that present safety issues (such as fire-damaged buildings or structures that remain partially built or partially demolished). Nuisance Real Property – IC 32-30-6-6 While it references Indiana Code, this definition goes farther than the code definition. While I don’t particularly have a problem with the definition, I have to question why it is being added and how it is intended to be used. My concern is that it portends an expansion of the duties of the Unsafe Building Committee, which already often ventures into aesthetics verses safety. First off, the area of aesthetics slippery slope, extremely subjective, and being fair with them is tough. Second, for some reason, this seems to be an area where Culver is all stick and no carrot… It would seem to be more productive to help find tenants for vacant commercial buildings and with our shortage of houses, help find new residents for vacant homes.

There were only a few people at the hearing in on Tuesday. For those of us that did attend, they didn’t have copies of the proposed changes for us to review. They also voted to waive reading them aloud at the meeting. When the notice leads by saying, “…correct clerical errors…” it’s not too surprising that there was no one there to listen, even if it had been read aloud. I had already commented on 1 & 2 at the September meeting and they said there was no agenda on 4. In the spirit of Culver seeking input, it would seem that some notice should have been given to the Township Trustees, the school superintendents, the Lake Maxinkuckee Environmental Council and the Lake Maxinkuckee Association. That would have allowed information to be circulated to those affected. My sense is that may well have increased the attendance and audience participation!

The list of changes is 9 pages long… The five I listed above are the ones that jumped out at me as potentially controversial or difficult to administer, but that doesn’t mean others aren’t affected by more of them and might have comments on them. Because this is a change to an ordinance, the Plan Commission is only sending on a recommendation to the Town Council. The council then adopts, rejects or sends the changes back to the Plan Commission. I believe that requires another public hearing, so there’s still time. We’ll see how it goes.

Finally, I want to reiterate my commendations to Mr. Gorski for tackling this. My commentary here is in no way meant to diminish the work he put in. Sometimes you can’t know or glean the history and the historical reasons may or may not be pertinent, but should be explored never the less. He is on his way out, leaving the Building Commissioner position after three years. I want to wish him the best in his future endeavors.

Disannexation

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A new word! This isn’t one I was familiar with, though the meaning of “disannexation” is pretty self-evident. Here’s an excerpt definition from Justia:

The property in question is part of the 70+ acres owned by Culver Investment Corp which was annexed as part of a mixed use PUD project at the northwest side of Culver. (Outlined in cyan and yellow on the GIS map to the right.) The project proposal included a large residential subdivision for most of the property and a gas station/convenience store on the NE corner of the intersection of SR 10 & SR 17. A preliminary PUD plan was presented and the developer entered into a development agreement with the town, which included the annexation. Since that time, the town has rezoned the property back to S-1, Suburban Residential, The developer has sold the north two parcels which are on the north side of SR 10 to two different purchasers and the remaining property has been on the market for some time.

It will be interesting how the Culver Town Council handles this. Disannexation seem counter to the reasons it was annexed in the first place and counter to the Comprehensive Plan, which includes developed uses for this property as part of Culver and expansion of the extraterritorial boundary based on this annexation.

The suggested disannexation is roughly the middle third of the overall property, parcel 502117203032000022 on the adjacent map, that was in the original annexation. If this goes through, this effectively creates a non-contiguous annexed area north of State Road 10. There are a few exceptions to the contiguous rule during annexation, but the exceptions generally apply to industrial parks and municipal properties. A brief search online didn’t turn up any consideration for creating orphan annexed property no longer contiguous to the town limits.

Disannexation Plat

I wrote about this a while back in a post here: Municipal Services As stated in an update at the bottom of that post, the town believes Culver Investment Corp is still responsible for extending services. I am not an attorney, but I do continue to have questions about that. Allowing this disannexation before having a resolution of the utilities issue would further complicate this in my mind. I would assume the new property owners have an expectation of utilities from the town. The town’s remedy for supplying these utilities would be the Culver Investment Corp Development Agreement. Messy at best…

I know it might be expedient to allow this disannexation and to pursue disannexation of the properties across SR 10, but my opinion is that would be a mistake. Culver should control these areas and particularly the intersection there. Culver is in somewhat of a growth phase, so giving up property control seems counterproductive to that. I hope the Council looks at the Comp Plan and the work that went into it before making a rash decision here. Time will tell…

Culver Zoning Revisions

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Steve Gorski, Culver Building Commissioner, has stepped up to the task of updating the Culver Zoning Ordinance. Having served on multiple committees to do this, I know this can be a mind-numbing and somewhat thankless task. This was one of the goals of the 2024 Comp Plan and Mr. Gorski has tackled it. At the last meeting, he presented a lot of the changes and corrections he is proposing. It wasn’t really open to the public for discussion, but was handled as a line-by-line presentation to the commissioners.

For 100% of what he presented, I appreciated what he was trying to do and the clean-up it represented. I think there was 10% that could have been improved by some additional input. My concern with the current approach being taken is two-fold:

  1. Mr. Gorski is the Building Commissioner, so naturally he tends to look at things from the administration and enforcement side of things. While those are relevant and extremely important, it doesn’t always pick up the implementation side that is important to the citizens when they try to comply with the ordinance.
  2. In the past, this has been done by a subcommittee, involving Plan Commission members and members of the public. While Mr. Gorski has a good working relationship with the Plan Commission, it’s harder for the Commissioners to question his suggestions since they are more personal than if they were created by a subcommittee. It’s impossible for one person to do this without it being affected by their personal experience. That is tempered by a committee. (Though this can easily double the time it takes to do this work.)

There is also the factor that Mr. Gorski has only held the position for a couple of years. I’ve written about “Institutional Memory” here before. This applied to more than a few items that he suggested changing. A couple examples just in the category of height restrictions:

  1. In the existing ordinance, there is a restriction that accessory structures in the residential districts have a height limit of 16′. This was added to the ordinance because multiple permits were issued for garages that later had a second floor area remodeled into a second residence, which was not permitted. Mr. Gorski has been questioned multiple times about this and would like it remove it.
  2. In the existing ordinance, the S-1 district allowed accessory structures to have a height of 50′, above the regular height restriction of 35′ in other districts (except A1 – Agriculture). The 50′ limit is there to accommodate grain elevator legs from before there was a separate A1 district. It was left in the ordinance during the last revision so existing farmers in the S-1 weren’t forced to rezone to comply if they added an elevator to their silos.

The ordinance is meant to be somewhat of a living document, so I am by no means saying that these things are written in stone. But the institutional memory of why they are there, could temper the decision to change them.

A couple larger items I struggled with on the changes were:

Image borrowed from the Strong Towns link (Hierarchical Zoning) to the left.
  1. Many of the tweaks, were to address current recurring problems, such a setbacks on small lots. I whole-heartedly agree with the thought process that the ordinance should be changed to reflect the reality of variance being given. Where I struggle with this is in the tweaks being made to setbacks in the R-1 district (as an example) to eliminate current setback issues on existing small lots, without considering how this would affect new lots with the larger lot sizes recommended by the ordinance. If the smaller existing lots are acceptable in R-1, then change the ordinance so new developments mimic the existing. Else, leave them intact as aspirational to what is desired in new construction. Or create new districts and district overlays to accommodate the current needs.
  2. The Comp Plan suggested some major changes in how zoning is handled. In some ways, it suggests moving away from Euclidean Zoning to more Hierarchical Zoning. This wouldn’t have to be done all at once, but could be done in steps or waves. Much of what is currently being fixed reinforces the current Euclidean Zoning. I did bring this up in the public comment section of the agenda and those that seemed to agree with me felt that fixing what we have is a good first step towards this. I hope that’s true since I know sometimes things get busy and major change is hard.

Overall, I commend Mr. Gorski for taking the bull by the horns and moving something forward. I hope the Plan Commission continues to work on this and takes the next steps recommended by the Comp Plan.

Disappointing…

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The February meeting of the Culver Plan Commission has been cancelled because “there are no agenda items”… This is a missed opportunity to tackle the myriad of suggestions from the the new (last year) Comprehensive Plan.

For Example, this would have been a great opportunity to invite Donny Ritsema from MACOG to come speak about areas of the new Comprehensive Plan that fall under the plan commission’s purview. Donny lead MACOG’s group (along with Olivia Nix) that helped coordinate the comp plan steering committee, helped organize much of the public input and produced the final plan. I’m sure he could have helped define a plan of attack and weeded through what needed addressed by the Plan Commission on their own and for some things, in concert with the Town Council or other Town entities.

I would suggest that the Comprehensive Plan should be a standing agenda item for the Plan Commission as a reminder that there are things to address. When there is a pressing agenda that takes a lot of time, then it would get passed over, but when there is a short agenda or like this month, nothing coming before them from outside, then it could be picked up and moved forward. Incremental advances are better than nothing. As always, I respect that the Plan Commission members are volunteers and appreciate the time they put in. It’s often a thankless job. The comp plan items should be easy items to move forward though. Those items have already gone through community review, plan commission review and town council adoption. Now we just need to implement them.

For some of my previous thoughts on this, see my Implementing Culver’s Comprehensive Plan post.