By PAULENE POPARAD

Porter Building Commissioner Dave Babcock said he won’t order David and Cheryl Lagestee to tear down their nearly completed $30,000 pole barn until directed to by the Town Council.

The Porter Board of Zoning Appeals on Wednesday voted 5-0 to deny the couple’s development standard variance seeking permission for a third accessory structure --- the pole barn --- at 420 Wagner Rd. A public hearing was conducted on the petition Aug. 18.

The Lagestees were issued a valid building permit last year for the structure by former building commissioner Doc Whisler, but Babcock red-tagged the construction recently as illegal.

In 2003 the couple had a separate petition for a use variance denied by the BZA on a 3-1 vote; at that time they sought to park a semi-tractor and trailer in an oversize garage they planned to build. The semi can be parked in the pole barn, now maintains Lagestee attorney Charles Parkinson, because his interpretation of Porter town code is that there is no prohibition against it.

Wednesday, Babcock said he didn’t know whether Parkinson is correct but the town’s Plan Commission last night worked on a draft amendment to the zoning ordinance dealing with parking recreational, commercial and construction vehicles, especially in residential zones. The Lagestee property is zoned residential.

The BZA also approved 3-2 a motion recommending the Town Council enforce the 2003 denial of the semi-parking request. Voting no were John Beckman and Michael Liebert. Beckman later said, “As I understand it, a truck can be parked in an enclosed building and (Wagner Road) is a truck route.” Liebert said he didn’t know if the semi-parking would be illegal or not.

David Lagestee said after the meeting he could have avoided the current petition for the pole barn if he tore down the detached garage on his property, which also has an attached garage, but the detached garage is usable. “I’m certainly not going to tear it down voluntarily.”

During the meeting BZA member Lorain Bell said he was told by Whisler that Lagestee agreed in 2003 to tear down the detached garage. Later, Lagestee said Bell’s statement was false and he never indicated to Whisler in a personal meeting or otherwise that he would tear down the garage.

The BZA is required to adopt findings of fact setting out the basis for its decision. Although formal findings won’t be prepared for and voted on until next month, Bell’s motion to deny the Lagestees’ petition cited the absence of any of the three criteria needed to be granted a development standard variance. Lagestee later said much of the discussion prior to the vote centered on the use of the pole barn, the same facts debated for the 2003 use variance, rather than on the building’s merits.

BZA President Bruce Snyder asked who owns the red dump truck and equipment parked at the Lagestee property. David Lagestee replied the concrete firm that poured his pole-barn floor, but he is using the equipment to lay railroad ties to separate gravel from his driveway and the grass; about 12 ties are yet to be laid. Snyder asked why the equipment moves on and off the property. Lagestee said the owner occasionally uses it but returns it as a convenience to Lagestee so he can finish his driveway.

Snyder asked if Lagestee is operating a trucking business from his home. Lagestee, a semi owner/operator, said all he uses is a checkbook and some credit cards but is incorporated for tax purposes. With the concrete equipment leaving and returning, Bell said two businesses are being run from the site because “as an owner/operator, (Lagestee) is a business.”

Bell said the current petition is basically the same one denied last year. He also said in 2003 the Lagestees initially did not own the property yet bought it anyway after the use variance was denied. “This is a buyer-beware situation and any hardship put on the petitioner is self-inflicted.” Later, Parkinson said hardship has nothing to do with a development standard variance and should not be a factor in that decision. He also said it was troubling that if no one could say for sure the proposed semi-parking is illegal, that shouldn’t be the central factor for denying the pending variance.

Snyder, saying his concern is increasing the non-conformity of the property, asked the petitioners if they had any other issues with another government body because of a billboard on the Lagestee property. Parkinson said there is a dispute over ownership of the sign but he’s not aware of any allegations of zoning violations. Said Snyder, “When we make our vote I want all the cards on the table and we’re on the same page.”

Snyder also said Whisler had noted that his permit was for constructing the pole barn only and he did not have the power to permit large trucks at the Lagestee property.

After the vote Parkinson said at this time his clients aren’t contemplating legal action against the BZA until they see the board’s findings, however, the Lagestees have 30 days to appeal in Porter Superior Court.

In a related matter, the BZA met in closed executive session prior to the public meeting to discuss how to respond to a lawsuit filed last month by Paul Nelson, whose petition to locate an advertising billboard between Interstate 94 and Old Porter Road was denied by a 3-2 vote on July 21. A court hearing was slated for Friday but BZA attorney Patrick Lyp said he was granted a continuance. The BZA also is defending itself in a third lawsuit over its upholding of building permits allowing reconstruction of a home at Porter Beach.

Posted 9/16/2004