Bza-1735 Richard G. Black Variances Staff Report February 22, 2007 bza-1735

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Richard G. Black


Staff Report

February 22, 2007


Richard G. Black


Staff Report

February 22, 2007


Petitioner with consent of owner Derek J. Loverich, is requesting the following two variances for a proposed winery (See BZA-1736 for the required special exception for this use):

  1. To allow a front setback of 8’ instead of the required 40’ from CR 200 N, classified a rural secondary arterial in the Thoroughfare Plan (UZO 4-4); and

  2. To allow a side setback of 14.66’ instead of the required 30’ from the east side property line where it abuts R1 zoning (UZO 4-4-12);

on property located at 3233 E 200 N, Fairfield 14 (NE) 23-4.


The property, zoned R1 since the inception of zoning in the County in 1965, was recently rezoned A, Agricultural by petitioner specifically for this proposed use. All surrounding properties were also originally zoned R1 and remain that way today, except for 77 acres immediately across the county road, which were rezoned to Agricultural in 1976 (Z-768). Flood Plain zoning associated with Wildcat Creek is located farther to the south of the rezone site and also west of the interstate.

The only variance granted in the area of this site was for a 2.5’ side setback for a detached garage on property farther to the east approved in 2004 (BZA-1654, Douglas & Cynthia Garwood).

Currently on site is a two-story, single-family dwelling and three accessory structures. The first floor of the house would have the tasting room, retail sales, and the office. The second floor would be used as a residence. Although petitioner has future expansion plans that would change the configuration of the buildings and create additional indoor space, his immediate plans are to leave the buildings in their current arrangement. I-65 forms the western border of this triangular-shaped property; land across the county road is farmed. Large-lot single-family dwellings line CR 200 North on both sides farther to the east of this tract; the property adjacent to the east has a single-family home approximately 90’ from the lot line it shares with the proposed winery. The newly platted, 17-lot, Polo Fields subdivision is under development on the north side of the county road, with Watkins Glen subdivision beyond that to the north.


The second page of the submitted site plan shows a 100’ x 60’ parking lot between the buildings and the interstate right-of-way. Two existing driveways, one on either side of the house, would both be used for the proposed business. Parking in the A zone does not have to be paved. The two variance requests would not impact traffic generation. For more information regarding parking and the proposed use, please see the BZA-1736 staff report.


Petitioner has state approval for a new septic field, half of which would be located within the 60’ wide I-65 building setback, well south of the existing buildings. Two septic tanks are shown on the site plan, one would be next to the septic field, and the second would be used as a holding tank for unwanted wine byproducts. For more information regarding existing and proposed utilities, please see BZA-1736.


The proposed winery would be utilizing a house and three outbuildings or barns that are already in existence. Building #1, which is the house, would have the tasting room and retail sales. Building #2 would be used for wine fermentation and wine bulk storage. The two variances requested pertain to these two existing buildings which petitioner has no plans to enlarge. Two other buildings, labeled #3 and #4 would house bottling and finished goods storage and equipment storage, respectively.

Petitioner has submitted three pages of a site plan package which indicate 1) existing conditions on site, 2) immediate improvements, and 3) future expansion. The third page which shows future expansion indicates the possibility of buildings #2 and #3 being razed and building #4 being moved on-site farther to the northwest. A new “potential building” of 100’ x 50’ in area is shown along the eastern 30’ building setback. This potential building meets the ordinance-required 30’ side setbacks for wineries.
The house, a.k.a. building #1, was constructed in or before 1957 according to historical aerial photographs and predates the construction of I-65 by several years. While INDOT did purchase some of the CR 200 N frontage of this property in order to build the bridge over the interstate, this taking did not affect the existing house’s setback from the county road, since the taking did not extend to the area immediately in front of the house. Clearly the house is a legally non-conforming structure, because the building with its 8’ front setback predates the 1965 zoning ordinance by many years. If it were to continue as a single-family residence, no front setback variance would be necessary; because petitioner is proposing a change of use, a variance is needed so that the development standards of the ordinance can be met for this new business.
Building #2, which was constructed with a 14’ 8” setback from the east property line is complying as an accessory structure to a residence, because that only requires a setback of 6’. The proposed winery has a side setback of 30’ when it abuts residential zoning.
If this were an unimproved piece of land, it is likely that no variances would be needed for a winery. There is sufficient area on-site to construct the necessary buildings within the parameters of the zoning ordinance. Because petitioner has chosen to utilize existing buildings on the property, instead of demolishing usable buildings and constructing complying structures, these two variances become necessary. Both the house and building #2 were constructed in a complying manner and would continue to be legitimate if the property were only a residence: the house because no setback regulations existed when it was built, and the second building because it meets the 6’ side setback for an accessory structure.

There is no question that these two variance requests represent a practical difficulty for petitioner. To remove walls or tear down usable buildings makes little sense. However, the definition of hardship states, “self-imposed situations…will not be considered hardships. Self-imposed situations include: the purchase of land with actual or constructive knowledge that, for reasons other than physical characteristics of the property, the development standards of this ordinance will inhibit the desired improvement…”

Regarding the ballot items:

  1. The Area Plan Commission has determined that the variances requested ARE NOT use variances.

And it is staff’s opinion regarding both requests that:

  1. Granting these variances WILL NOT be injurious to the public health, safety, and general welfare of the community. The house has existed on this site with an 8’ setback from the road right-of-way for approximately 50 years without being a hazard to the public. The setback for building #2 would not impact the general public in any way; at nearly 15’ back from the side property line, sufficient space exists to prevent the spread of fire and allow ease of maintenance.

  2. Use and value of the area adjacent to the property included in the variance requests WILL NOT be affected in a substantially adverse manner. The house’s setback would remain unchanged from its current position which has not adversely affected the neighborhood during its 50 years of existence. Likewise the setback for building #2, though approximately half the required setback, would still provide 105 feet of distance between the closest neighbor’s house and the nearest building of the proposed winery.

  3. The terms of the zoning ordinance are being applied to a situation that IS NOT common to other properties in the same zoning district. This is only the second proposed winery in Tippecanoe County since the winery regulations were adopted in 2004. Because that first winery special exception was withdrawn, petitioner’s proposed business would be the only winery in the county making the situation unique to this site; however

  4. Strict application of the terms of the zoning ordinance WILL NOT result in an unusual or unnecessary hardship as defined in the zoning ordinance. The zoning ordinance definition states, “self-imposed situations…will not be considered hardships. Self-imposed situations include: the purchase of land with actual or constructive knowledge that, for reasons other than physical characteristics of the property, the development standards of this ordinance will inhibit the desired improvement…”

Note: Questions 5a. and 5b. need only be answered if a hardship is found in Question 5 above.

5a. The hardship involved IS self-imposed and solely based on a perceived reduction of or restriction on economic gain. Because petitioner chose a property which he knew would require variances, the “hardship” is self-imposed. The only way to make the property complying would be to remove two of the buildings and construct new ones which would reduce economic gain; however,

5b. The variances sought DO provide only the minimum relief needed to alleviate the hardship. Petitioner is not expanding the existing buildings into the setbacks further than they already exist; therefore the setbacks requested are minimum relief.

    1. Denial

    2. Denial

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