By PAULENE POPARAD

Porter Beach residents Elka Nelson and Jamie Hogan said money and energy would be better spent developing a new way to make informed zoning decisions rather than waging a protracted legal battle over an unpopular ruling made by the Board of Zoning Appeals last month.

Although the BZA, which they addressed Wednesday, had no comment its attorney, Patrick Lyp, said he will recommend to the Town Council at its Tuesday meeting that a committee be established to revisit an earlier attempt to draft a zoning overlay for the beach area, which Lyp said doesn’t easily lend itself to conventional development ap-proaches.

Nelson said such a commitment is important. “What I hear from you tonight may help convince me to forgo my efforts in organizing necessary parties to seek a writ of certioriari.” The writ is the vehicle that allows citizens to seek judicial review in Porter Superior Court of a BZA decision.

Town Council member Bill Sexton, who last week with Councilman Dave Babcock criticized the BZA’s March 19 vote, said they both are committed with the support of other council members to come up with a beach zoning overlay.

Lyp warned the last attempt about four years ago died because beach residents failed to reach a unifying consensus on what they wanted. If this time is to succeed, he urged Nelson and Hogan to foster agreement among their neighbors on what’s best for Porter Beach.

The committee likely would consist of representatives of the Town Council, Plan Commission, the town planner and beach residents. The commission eventually would have to make a recommendation to the council for final action.

Nelson said all Porter residents who jog, bike, swim or recreate there, not just those living at Porter Beach, would benefit from the protections of a zoning overlay.

The controversy that prompted renewed calls for the overlay was the 3-2 BZA vote granting Ray Cahnman three variances so he can build a 20-foot by 28-foot garage on a 20-foot by 100-foot parcel separated from his Duneland Drive home by a public alley.

Five persons remonstrated in person and 23 persons sent remonstrance letters. Not one word of their statements or concerns is included in the March 19 BZA minutes adopted last night.

One resident did speak in favor of the garage variances. Cahnman’s attorney Bob Welsh has said the variances were legally granted and his client has a legitimate expectation the decision will stand.

Nelson asked that the Porter Building Department and Town Council do what they can to monitor construction of Cahnman’s garage to ensure there is no abuse of the variances, no further encroachment of the building line and that there are no decks, improvements or extensions made to the permitted but non-conforming structure.

Based on her assessment as a real estate attorney, Nelson was of the opinion her review of the facts shows the BZA was working on misinformation or lack of material facts and/or knowledge of the law. Instead of reaching hasty decisions in the future, she urged BZA members to become more familiar with the zoning ordinance and relevant facts of a petition, and to listen to and understand the points made during public comment by remonstrators.

Regarding the Cahnman petition, “Unfortunately (our) information fell upon deaf ears and some information was ignored completely. This is a town you are running, not a family business. Rules must be understood by those in a position to enforce them and they must be strictly adhered to. All information required to properly analyze the variance request was public information and easily accessible on due inquiry.”

Paraphrasing Babcock’s comments April 8, Nelson said, “This is not about Mr. Cahnman’s stinking garage.” Her stronger concern is the manner in which the BZA reached its decision and hope that everyone involved has learned a lesson, she added.

Hogan expanded on that point. She asked that apparent confusion between the standards being used by the BZA and those in published code be resolved. Furthermore, she said the findings of fact BZAs are required to make are deficient in Porter’s case because they do not explain why the board voted the way it did. “I don’t think we should wait for lawsuits to demand that of yourselves on this board.”

Hogan also said she is troubled by the reliance in making decisions on town department heads meeting as the Technical Advisory Committee. “There needs to be a clear understanding of TAC’s limited power and that it is not a judge and jury for the BZA.” Additionally, Hogan asked that every future remonstrator who submits comments in writing be assured their input will be heard.

She, too, was looking for a commitment from town officials for positive change. “I believe that it is always better for neighbors and community members to work out their differences though compromise and open discussion.”

Regarding the findings, Lyp said state law mandates findings be adopted within five days of a decision and he can’t draft them in any detail at the meeting. He also said if a lawsuit is filed, a court looks at what was said during the meeting, not just what the findings say.

Unlike Chesterton and Burns Harbor, Porter does not require zoning petitioners to submit proposed findings the BZA may adopt, amend or reject.

Split Brack decision

In an unexpected vote the petition of Andrew Brack narrowly was approved 3-2. No one commented during a public hearing. He wants to build an addition in line with his 124 Rankin St. home in downtown Porter. The legal but non-conforming existing house has a 10-foot front yard setback; under current code a setback of 30 feet is required for the corner lot so a variance is needed.

BZA member Lorain Bell moved to grant the variance, then voted no as did Greg Stinson. Henry Huyser, Bruce Snyder and Bob Kremke voted yes. When asked after the meeting why he voted against the variance, Bell said, “I just felt like voting no.” Stinson said he would have preferred to table the petition over the findings of fact issue. No findings were adopted. Lyp said he’d prepare some for the next meeting.

Posted 4/17/2008