Attorney Steve Snyder presents the Galloways’ three variance petitions Monday to the Warsaw Board of Zoning Appeals. Photo by David Slone, Times-Union.

By David Slone
Times-Union

WARSAW — After being tabled from the December meeting to Monday night, Jan. 22, all three variance requests for 4 Yarnelle Point were denied by the Warsaw Board of Zoning Appeals.

The petitions from Toby and Annelise Galloway, represented by attorney Steve Snyder, were tabled in December so Snyder could add language to a covenant proposed for the property after board members expressed concern about the property potentially being used as a rental.

The first petition was for a use variance to allow a secondary residential structure in a Residential-1 zone, according to Assistant City Planner Jackson Longenbaugh. The owners are planning on rebuilding the current accessory structure with a second story, and removing and rebuilding the primary residence. While rebuilding the primary residence, the owners plan to live in the newly rebuilt accessory structure. After the primary residence is finished, Longenbaugh said the accessory structure is to be used as a guesthouse or living quarters for family and friends. There is no plan to rent the space in the future, he said, and multi-family uses are not allowed in R-1 districts.

Longenbaugh stated it was the opinion of the Warsaw Planning Department that the use variance should not be ruled favorably.
The second variance petition was to allow an accessory structure to be 21 feet, 6 inches in height, when the maximum allowed height for an accessory structure is 18 feet.

The third variance request was to allow an accessory structure with an 18-feet, 6-inch lake setback. The allowed setback along a lake or waterway is 25 feet, but the petitioner wanted to rebuild the accessory structure in the existing nonconforming footprint of the boathouse on the property.

Adding on to what Longenbaugh said, Board President Tammy Dalton referenced a May 29, 2018, BZA meeting in which the board denied a petition for a use variance for 4 Yarnelle Lane to allow a multi-family residence in an R-1 zoning district.

Dalton said the bottom line was the board denied that petition in 2018 and “I feel like we’re back with the same thing. The only difference here is that we have Mr. Snyder representing the petitioners.”

Snyder’s first comment was that they weren’t back with the same thing.

“That was a request for multi-family use in an R-1 district. This will continue to be a single-family use. There’s a major difference there simply because the use variance was directly for multi-family use with the intent that there could be three separate families occupying three separate structures. It’s not what we’re applying for here,” he stated. “We’re applying for a single-family residence with a guest house that will be used by that same single family.”

He said at the December meeting they had a discussion about the restrictions that would be placed on the use and what the BZA wanted to see. Snyder had presented the board members with the revised deed that would impose those covenants on the tract.

A paragraph from the quitclaim deed states that the use of the real estate “shall be for single-family purposes” and not multi-family, Snyder said. “Neither of the two residences on the real estate may be rented separately or used for income-producing purposes, one from the other, without the approval of the Warsaw Board of Zoning Appeals. This shall not prevent rental of both residences to the same tenant or use of either residence by extended family or guests.”

It also limits the stay of any guest in the guest house to 10 consecutive days, and states that the covenant may be enforced by the Warsaw BZA or the owners of properties at 1, 2, 3, 5 and 6 Yarnelle Point, Warsaw.

Snyder said he believed the language in the deed addressed all of the issues the BZA raised concerning using the property for rentals and for income-raising. He reiterated the property will be for single-family use.

He also elaborated on the need for the other two variances the Galloways were seeking approval on.

“Let’s talk a little bit to the height at 21’ 6”. It will be lower than the new residence when it is constructed. We need the variance now simply to construct it before the replacement main residence is constructed so the parties can live in it,” Snyder said.
As for the 18 feet, 6 inches from the water, he said that’s the same as the current structure.

Responding to a question from Board Vice President Rick Keeven, Snyder said there were two residences on the property (and a boathouse) but one residence is being torn down so when everything is completed there will be one main residence and a guest house. The second residence was not used as a rental, he said. None of them will be used as rentals and the covenant on the title to the property would be to that effect so it binds not only the Galloways but also to anyone they would sell the property to down the road.

Keeven said during the December discussion, it was mentioned that the Galloways could simply build a breezeway between the two properties and overcome the whole situation. Snyder said they could connect them in such a way that it would be satisfactory to the planning department staff, but it wouldn’t look good, be functional or compatible with the neighborhood.

“It would be a long, narrow hallway, if you will, but that would allow then for this overflow residence to be constructed as we’re proposing,” Snyder stated.

Dalton reminded the board they had five letters remonstrating against the petitions. Two of those letter writers were Carlye and Jeff Baenen, who also spoke at Monday’s meeting.

Carlye said he neighborhood of 125 homes doesn’t have an home owners association, and there are no guest houses on any single-family property.

Jeff said it wasn’t unreasonable for the neighbors to be skeptical “about the security that we have that no rentals will take place, or this or that will be done. The truth is, we’ve been living with a burnt-out hulk for years now at that location. If the owner had the money or cared enough about the neighborhood to fix it and address the problems, we wouldn’t be as skeptical as we are.”

He also was concerned that if the board approved what the Galloways wanted to do, it would set a precedent with the other neighbors.

Snyder responded that the Galloways and their insurance company still are in dispute over the claims for the fire that took place at one of the residences and when that will be resolved is still unknown.

“It hasn’t been resolved in six years, correct? That’s what gets me. That’s not good,” Board member Dan Smith said.
Reust reminded the board that when they make their decision, they can’t consider the character of who is involved in a case. No legal precedent is set with anything the BZA decides either, he said.

Board member Jeff Johnson said it was clear what the board’s five guidelines are, and several of them do not apply to the petitions at all. “There is no need for this variance because there is a particular issue with this property,” he said, and there is no unnecessary hardship for the property.

He made a motion to deny the first variance, and his motion was approved with four votes. Keeven abstained. Keeven then made the motions to deny the second and third petitions, which also were approved.