By PAULENE POPARAD

The Porter Town Council was told Tuesday that state law prevents it from asking the town’s zoning board to review its March 19 decision that allows a 20-foot by 28-foot garage to be built on a 20-foot by 100-foot parcel at Porter Beach.

Town attorney Patrick Lyp advised the only way to review a Board of Zoning Appeals decision is for someone to file a legal appeal. The deadline to do so is April 19. The Porter BZA has been hit with several such lawsuits in recent years over its rulings.

Lyp also warned that if the council tries to interfere with the BZA variances already granted, petitioner Ray Cahnman could sue the town to uphold them.

Lyp said he’ll recommend that the BZA conduct a closed executive session to discuss threatened litigation. He noted even if members say they were wrong and want to undo their decision they can’t, but if someone files a lawsuit that gives the BZA flexibility to resolve the matter.

The garage petition brought by Cahnman was heavily remonstrated against with more than 25 letters sent and additional opposition voiced in person at the public hearing. Tuesday, beach resident Roger Carnell said the remonstrance letters weren’t given due consideration and at the very least the BZA should have withheld a decision until all members read them.

Last week Jamie Hogan of Porter Beach sent the Town Council a detailed four-page letter laying out her reasons why the BZA action should be reviewed and asking the council to intervene.

“The BZA’s got to be accountable for what they do,” said Councilman Dave Babcock. “We’re not here to sue over a stinking garage. There’s no sense letting this get out of hand.” Councilman Jon Granat said he, too, would like to head off a lawsuit if possible.

Lyp said the only involvement the Town Council has with the BZA is to make appointments to it when terms expire.

BZA members Lorain Bell, Bob Kremke and Bruce Snyder granted Cahnman three variances to build the garage with no sideyard setbacks on a lot that has no principal structure and on a parcel less than the minimum lot size required. The garage will be separated by a public alley from Cahnman’s 311 Duneland Dr. home.

BZA members Greg Stinson and Henry Huyser voted against the variances. Town planner Jim Mandon told the BZA that he and all department heads supported the variances being granted.

Council president Bill Sexton said it’s troublesome that the BZA did an end run around the Town Council in that last year Cahnman asked to vacate the alley so he could build the garage and the council said no, only to have the BZA approve its construction. “I want to see the findings of fact,” said Sexton.

Hogan also raised that point saying because the one-sentence finding for each of the three variances gives no reasons why the BZA majority voted the way it did, the findings are legally insufficient. Lyp said a court could remand the findings back to the BZA to be expanded.

A key point raised by remonstrator Elka Nelson at the March 19 meeting and by Hogan in her letter is their belief that the parcel for Cahnman’s garage is actually on three lots with three distinct tax bills and not one lot of record as the Porter ordinance requires. “In spite of the fact that the BZA had no jurisdiction and the (Porter) Plan Commission first needed to hear a petition to replat these lots into one parcel,” said Hogan, “the BZA did in fact hear and act on the variances requested.”

Lyp told the council that normally a petitioner gets lots unified before building but the BZA has the power to vary town code. Waiving the lot of record requirement was not one on the variances Cahnman sought. When Lyp was asked if the BZA can grant a variance that was not even requested, he said no.

Babcock and Sexton are both former Porter building commissioners. They said there’s no way a 20-foot garage could be built on a 20-foot lot without roof overhangs extending over the lot line or the excavation footprint disturbing the public alley and adjacent property, which is co-owned by Cahman and two others.

Sexton wanted the BZA to review their findings and the process it used to consider the variance. Lyp said there’s case law allowing a BZA to revoke a variance if its terms are violated but having a BZA review a decision short of that is a murky area of the law.

Babcock said BZA members should be accountable. “Their job is to have people come in front of them with facts. If they make this decision, they should stand up and say this is why we did this and we feel it’s right.” Lyp said the logical conclusion to be drawn is the BZA majority found Cahnman attorney Bob Welsh’s arguments to be more compelling than those of the remonstrators.

Today, Welsh said, “Pat Lyp is correct. The BZA decision is not reviewable by any other town body. The BZA is supposed to be independent of political interference.”

Welsh also said he did submit detailed findings of fact supporting the variances. As for whether the Cahman garage parcel is separate lots or one lot of record, Welsh said, “It’s all nonsense. It wouldn’t make any difference if it’s a lot. It’s a distraction. All the reasons for granting a variance would have been there.”

Council member Michelle Bollinger asked Babcock what he expects the BZA members to do, cautioning it might not be right to say they’re avoiding the issue when they legally can’t address it. Babcock said, “They may be right. I don’t know,” but he questioned whether a BZA should have such a free hand.

Another point raised in Hogan’s letter is that the BZA was told only practical difficulty, not hardship, need be considered when making a determination to grant or deny a development standard variance. “This is in complete conflict with the adopted language of the 2003 Porter zoning code for such (a) variance,” according to Hogan.

During the BZA hearing remonstrators said there is no practical difficulty or hardship because Cahnman has a garage at his home and has access to a second on the parcel he co-owns. Welsh said they are not suitable for Cahnman’s present needs.

Hogan also questioned the recommendation by Mandon from the town department heads, who meet as a Technical Advisory Committee to the BZA and Plan Commission, as to whether TAC complies with the Indiana Open Door Law. TAC to date has given no notice of its meetings, not kept minutes or made written recommendations although Sexton has asked them to begin doing so.

This morning, notice of a TAC meeting for April 15 at 3 p.m. at the town hall was given.

Regarding the March 19 BZA decision, Hogan said, “Open and honest government is a minimum expectation. A full review of the flawed procedures and an audit of the discrepancies between what is clearly in the Porter Zoning Code and any actions taken contrary to that code is in order.”

She also encouraged the town to resume consideration of a zoning overlay that would create a lakeshore preservation district at Porter Beach; first proposed in 2005, it was never pursued.

Posted 4/9/2008