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As members of the Syracuse Town Council, Barbara Carwile and Larry Siegel should never have served on the Syracuse Board of Zoning Appeals, an attorney says.
But because they did, two petitions brought before the Syracuse BZA this year must be reheard.
On May 15, Syracuse attorney Steve Snyder filed petitions in Kosciusko Superior Court 1 on behalf of Douglas and Jeanine Shrock and also for Grace Lutheran Church. In part, the Shrock petition challenges the makeup of the Syracuse Board of Zoning Appeals because "it's not properly constituted," Snyder said Friday.
The Shrock petition asks the court "to issue a writ of certiorari to the Kosciusko County Board of Zoning Appeals" and "to enter an order modifying the illegal decision of respondent made on April 17" denying their variance request.
The Schrocks own real estate at 631 E. Northshore Drive, Syracuse, and on March 31, the Schrocks filed an application for a variance to allow an in-ground swimming pool to remain as built, 25 feet, 6 inches from the water's edge. On April 17, the Syracuse zoning board denied the variance.
Grace Lutheran Church sought a variance to allow a sign to be placed on the church property. It also was denied April 17.
The Shrock petition to the court alleges "the decision of respondent is illegal in whole or in part" for the following reasons: the board failed to make adequate findings of fact; the board disregarded the evidence and denied the request; the decision was arbitrary and capricious; and the Syracuse BZA is not properly constituted, its members not having been appointed according to state statute. The petition claims any decision made by the board is void.
The Grace Lutheran Church petition calls the decision by the Syracuse BZA illegal because there was no adequate findings of fact and evidence was disregarded. The church's petition also says the regulations imposed on the petition are a violation of the separation of church and state.
The Syracuse BZA has to have an appointment from the Kosciusko County Area Plan Commission, according to plan commission assistant planner Matt Sandy. By default, whoever represents Syracuse on the plan commission also sits on the Syracuse BZA. Carwile has served on both boards for a number of years. Last year, she asked for a proxy to serve for her and Siegel was appointed to serve as her proxy. During the April 17 meeting, neither Carwile nor Siegel was at the meeting, Sandy said.
Siegel was elected to the town council last fall.
According to Kosciusko County Area Plan Commission Director Dan Richard, Snyder is contending that by Indiana code, a member of the Syracuse Town Council should not serve on the Syracuse BZA.
Snyder's contention is that the Syracuse BZA should be drawn up like the Kosciusko County Area Plan Commission, which means it would include a representative from Syracuse, one from Milford, two from the county plan commission and one from the county commissioners.
But Richard said the Syracuse BZA was formed using a different formula based on laws that are no longer on the books. If Snyder's theory should prove to be true, the only cases affected would be the "ones that were appealed." Worst case scenario, Richard said, is that the Syracuse BZA would have to get a new member and rehear the cases.
But Snyder said he and Syracuse Town Attorney Mike Reed agreed Friday morning that a town councilman was not a proper appointment to the Syracuse BZA. He and Reed, he said, agree the zoning board need to rehear the cases. The town council can appoint someone to the board, but it cannot be a town councilman.
The two petitions could be reheard as early as July.
Snyder said if someone were to raise the issue, others may have the right to contest decisions on their requests for variances while Carwile was on the board. Normally, a person loses the right to appeal a denial of a variance after 30 days, but in a case like this, Snyder said, a time limit may not apply.
