Kosciusko County Area Plan Commission voted Wednesday against giving a favorable recommendation to a road vacation in Cherry Creek Manor subdivision.
The request was made by Jacob and Kathleen Macke who live on Blossom Lane in the subdivision located off Packerton Road between Pierceton Road and CR 225S.
When the Mackes' property was built it was within the 35-foot setback required by county ordinance.
The home's builder, Wendell Miller, was given three options, according to Area Plan Director Dan Richard.
The foundation could have been moved, they could have applied for a setback variance with the County Board of Zoning Appeals or asked for a road vacation of a portion of Blossom Lane that extends out like a cul-de-sac.
Richard Helm represented the Mackes and said the problem was self-reported.
Helm said his legal experience led him to apply for a road vacation rather than a setback variance.
"This fits the criteria for a variance not nearly as well as it meets a vacation," said Helm.
Helm said the neighbors in the subdivision have no problem with the road vacation.
Board member Larry Coplen asked if utilities ran along that section of road. Helm said there may be electric and gas lines.
Coplen expressed concern that in the future that may be a problem if the home is sold.
Helm said they could create a separate easement document and cross-index it to avoid any problems.
The attorney earlier stated that utilities have access to areas no matter what is decided by local boards.
County surveyor Dick Kemper said he had several problems with the petition.
Kemper said a builder should pull out the plat before any work is done.
The home is about 5.5 feet inside the setback requirements.
Kemper said he also felt like getting a setback variance with the BZA was the way to go.
"I do have a small problem this far along in the process being told to start over," said Helm, saying that the Mackes are on the line punitively.
Kemper also said this is the third instance of setback violations with Miller as the builder.
"Though if it was a first-time contractor I'd still have the same opinion," said Kemper.
"I'm simply questioning why it should happen," said Kemper of the builder not meeting the setback requirement "And because of that we're being asked to vacate on a five-year-old subdivision."
"It's inexcusable to me," said member Bob Conley of the setback requirement not being met before the house was built. "Get it right."
The board voted 8-0 to recommend to the County Commissioners that they not approve the vacation and have the issue taken to the BZA.
The commissioners will hear the vacation request Jan. 18 to make a decision.
A final plat was approved as the plan commission voted 8-0 to approve a residential development on a 5.773-acre tract of ground. The property is on the south side of Old 30 about 4,700 feet west of CR 450 in Wayne Township.
The petition was filed by Scott Miller. The preliminary plat approval was made in December. Attorney Steve Snyder represented Miller for both hearings.
A hearing for Don Impey was continued for the second straight month.
Impey's petition is to rezone ground on property on the south side of Ind. 13, 2,300 feet west of CR 650E, in Turkey Creek Township from agricultural to residential.
At the plan commission's December meeting, the board wanted more information on soil samples. The health department also wanted more information.
That information still wasn't ready as of Wednesday.
The Area Plan Commission is a nine-person board. Members are appointed by different governing bodies in the county.
James Moyer is the county council's representative. Conley represents the county commissioners. Charlie Haffner is an appointee of the Syracuse Town Council. Keith Hardy is an appointee of the Milford Town Council. Coplen is an appointee of the county council. Kemper is the county's surveyor. Kevin McSherry is an appointee by the county commissioners and represents agriculture and emergency services. Dr. Lee Harman was appointed by the county's school superintendents. Vic Virgil represents the Small Town Advisory Board.
Virgil was absent from Wednesday's meeting as he is dealing with health issues. Area Plan Director Dan Richard told board members that Virgil is out of intensive care and is now preparing to begin rehabilitation.
The four members who can serve as proxy for Virgil on the county's Board of Zoning Appeals were approved. Hardy, Coplen, Harman and McSherry were approved as proxies.
Moyer, Conley and Kemper can't be proxies because they are elected officials. Haffner already serves on the BZA.
Virgil was re-elected as chairman of the plan commission while Haffner was re-elected vice-chairman.
Kemper will once again serve as the plan commission's secretary.
The plan commission's next meeting is Feb. 2 at 1 p.m. in the Old Courtroom.
