Continuously serving Kosciusko County since 1854
The owners of Pie-Eyed Petey's Pelican Bay may not get their restaurant after all.
Tuesday, the Kosciusko County Board of Zoning Appeals denied Roy and Barb Hamer's petition for an exception to change a non-conforming use to put in restaurant facilities at the marina.
The petitioners planned to operate the restaurant instead of selling new and used boats at the marina.
The property is in a residential district on the north side of EMS T16 Lane in Tippecanoe Township. The property formerly was operated as Plaza Marina and Precision Marine.
The board denied the petition by a vote of three to two.
Attorney Richard Helm, representing the petitioners, said no decision on whether to appeal the decision has been made.
Helm told the board boat sales would be eliminated entirely. Small parts for boats - such as spark plugs - would be sold and a mechanic would be on hand to help boaters install the small parts. But no more than three boats would be left outside.
Boats and trailers of people using the lake would still be parked on the property, and during the winter, boats would be stored.
"The shift in focus is because my clients want to operate a seasonal restaurant," said Helm. The building would not be expanded except for a patio to allow outside dining.
Helm said the restaurant would close at 10 p.m. on weekdays and midnight on weekends.
Attorney Steve Snyder represented several remonstrators. He said the non-conforming use could not be changed because the non-conforming use hasn't been in existence during the winter. If a non-conforming use does not exist for more than six months, it ceases to exist, he said.
Snyder presented what he said were sworn affidavits from several people who said no business was conducted by the previous owner at the business from last summer to this spring.
He said ordinances also prohibit a new non-conforming use to be more intensive than the previous use. A restaurant would be more intensive.
"It's not compatible," said Snyder.
Two remonstrators also complained about traffic and the possibility of alcohol sales at the building if the restaurant is approved.
In rebuttal, Helm presented letters from a number of people who said they had business dealings with the previous business owner over the past winter. He also said since the marina is seasonal, the six-month period does not apply.
"If I stop serving chicken for six months, am I prevented from serving chicken again? That's the analogy I just heard," Helm said.
With no boat sales, the restaurant business would be no more intensive.
Area Plan Commission Director Dan Richard said the board has the authority to change a non-conforming use if it's not any more intensive than the previous use. If the non-conforming use wasn't already in place at the property, the petitioners could not ask for the exception for the restaurant in a residential district.
"I don't think there's a question that there's going to be more of an intensive use," said board member Walter Church.
Charlie Haffner, board member, said he wanted more time to think about the petition.
Church said he also didn't like the possibility of alcohol being sold with children and boating in the area. He motioned to deny the petition. Board member Ron Sharp seconded the motion. Sharp said a restaurant would be more of an intensive use than the boat sales or otherwise the business won't make it. Board member Vic Virgil also voted in favor of denying the permit.
In other business, the board:
• Approved Marie Savage's petition for a variance to permit a 9-foot fence along the back property line. The maximum allowed by ordinance is 6 feet. The property is on the west side of Country Club Road and 1,130 feet south of CR 225S in Wayne Township.
• Approved a petition by ERI Housing for an exception for manufactured home sales and service in a commercial district. The property is on the east side of Ind. 15 and south of CR 600N in Plain Township. Restrictions put on the approval included the exception, that property will be reviewed in six months and that petitioners must receive a permit from Indiana Department of Transportation to have access onto Ind. 15. No junk or trashy homes may be on the site.
• Continued Becky Stump's petition to the Aug. 14 meeting for an exception for a bait and tackle shop in an agricultural district. The property is on the south side of CR 1050N and 490 feet west of CR 1000E in Turkey Creek Township. The property must be cleaned up, the board said, before they will make a decision on the petition.
• Due to concerns regarding visibility at the street corner, the board denied Robert Mensinger's petition for a variance to allow an enclosed platform 16 feet from a south right of way and 19 feet from a east right of way. The property is on the north side of EMS D25 Lane and zero feet west of EMS D2 Lane in Van Buren Township.
• Approved a petition by Fahl Homes for a variance to permit allowing a residence to remain 30 feet from a west side road right of way. The property is on the south side of Lantern Road and 200 feet east of CR 100E in Plain Township. Because the residence was built in violation of county ordinances, a fine settlement of $2,500 was proposed. The petitioner can accept or reject the settlement. If they reject the settlement, they will be taken to court.
