A rezone request for Lake Lemon Marina was denied by Monroe County’s three-member board of commissioners at its Wednesday meeting.
Voting against the request were the two commissioners present—Julie Thomas and Penny Githens. Lee Jones was absent.
Based on commentary during Wednesday’s meeting, the case will eventually be litigated in the Monroe County circuit court.
The father-son owners—Stephen A. Werner and Stephen M. Werner—are not looking to use the land for anything other than a marina. Their petition even specified the same zoning district in the requested rezone—from Limited Business (LB) to Limited Business (LB).
So why did the Werners want the land rezoned and what’s the impact of Wednesday’s denial?
The point of the “rezone,” from LB to LB, was to remove a condition of approval for a previous rezone that was approved in 2007.
That condition required the marina’s driveway eventually be shared with the adjacent residential properties to the west, in order to provide those properties with access to Northshore Drive. Those properties to the west were not allowed, under the 2007 zoning, to create their own driveway cut onto Northshore Drive.
So that condition represented a liability for the marina, which Werner’s acquired by purchasing Schell Group LLC from John and Lora Schell at the end of 2021.
Connected to the zoning condition requiring a shared driveway was a $42,000 letter of credit—which was money that the Werners had to keep in the bank, just for the potential purpose of meeting the zoning condition. That’s what motivated the Werners to ask for a rezone that eliminated the condition requiring a shared driveway configuration.
Based on the unanimous vote in support from the Monroe County plan commission, at its June 20, 2023 meeting, the Werners seemed to be on a path to winning approval from the county commissioners.
There was a wrinkle that gave the commissioners pause—a driveway cut that had been installed onto Northshore Drive by a neighboring property owner to the west sometime around 2016. It was the same issue that had led the planning staff to recommend against dropping the condition requiring shared driveway use.
The additional driveway should have been prohibited at the time, but was not. The zoning condition that was put in place in 2007 was clear about no new driveway cuts onto Northshore Drive:
Access to proposed lots be provided by an ingress-egress easement at the existing petition site entrance or via an easement from another existing driveway cut. No new driveway cuts shall be allowed onto east Northshore Drive.
But the highway department issued permits for the construction of the driveway on Nov. 17, 2016. It’s a topic that came up several times at the three meetings in recent weeks when the county commissioners discussed the marina’s requested rezone—on Aug. 23, Aug. 30, and finally on Sept. 6.
According to Monroe County planner Drew Myers, and Monroe County highway director Lisa Ridge, those permits were revoked the same day.
During his allotted time, petitioner Stephen M. Werner noted this Wednesday that Ridge had said at several meetings that the permits had been revoked. Stephen M. Werner added, “But there is no documentary evidence that that driveway permit was revoked.”
He said, “I’m not saying it didn’t happen. But if we have to go to court, we’ll discover that—we’ll definitely go after that.” The younger Werner is an attorney who is also the ownership’s legal counsel.
On Wednesday, Ben Ayers, project engineer with the Monroe County’s highway department said at the time he had spoken to the property owners, the Johnsons, about the driveway permits that had been issued in error, then revoked. “I…explained it to them. And they were going to make it right,” Ayers added, “As we know, that didn’t happen.”
The driveway permits, issued in error, led to the current configuration, where there’s an illegal driveway just to the west of the marina’s driveway. Under the zoning condition from 2007, making things right would require the other driveway cut to be eliminated, and a segment of driveway to be constructed parallel to Northshore Drive linking up with the marina’s driveway.
There’s at least one other complicating factor: The land where the alternate driveway would be constructed is not owned by the Werners. That real estate belongs to their eastern neighbors, Karen and Colin Hamer.
The Hamers, and neighbors on the other sides, were in favor of the rezone request by the Werners.
The impact of the rezone would have been to declare as legal the configuration on the ground that has been in place since the illegal driveway was constructed in 2016.
In supporting that approach, Monroe County plan commissioners replaced the old zoning condition of approval with one that was meant to address concerns about traffic safety.
The specific concern was about adequate sight distance approaching the driveway from the northwest. So the new zoning condition of approval was:
The petitioner contract an Indiana licensed engineer to prove that sight distance can be met and approved by the Monroe County Highway Dept. This information shall be provided before the petition is heard by the Monroe County Board of Commissioners.
The Werners hired Bloomington-based Bynum Fanyo to do the sight distance analysis. By the time of the Aug. 30 meeting, the Werners had submitted the engineer’s report, but planning staff had not relayed it to the highway department. That meant the county’s highway engineer had not reviewed it.
The postponement until Wednesday was mainly to allow county highway engineer Paul Satterly to have time to review the Bynum Fanyo sight distance analysis.
On Wednesday, Satterly confirmed that the analysis was based on correct information: “They are correct in terms of the required sight distance of 335 feet for a minor collector 30 mile an hour speed limit.”
Satterly continued, “The basic geometry as shown there on the horizontal view is OK.” But Satterly concluded that because achieving 335 feet would require cutting across the inside of the curve, where vegetation could block the view, “I would not recommend approval of this driveway at this location.”
Satterly’s evaluation was enough for county commissioner Julie Thomas to vote against the rezone.
Thomas serves on the county plan commission as the appointee from the board of commissioners. So at the June 20 meeting, she had, like all the other plan commissioners, voted to support the rezone.
On Wednesday, Thomas said that as a plan commissioner she had at first been opposed to the petition. But she had joined the unanimous vote in favor of a positive recommendation, because of the new condition requiring the engineer’s analysis.
But in light of Satterly’s assessment, Thomas said she could not support the petition. Penny Githens, who described how she had visited the site, also voted against the request.