County denies variance for ATV track
After a meeting with the city, several months of meetings with the county and lots of wrangling over noise, traffic and safety, the residents of northern Greencastle Township finally have an answer.
The Putnam County Board of Zoning Appeals (BZA) will not allow a use variance for an off-road dirt bike and four-wheeler track north of the city.
The answer came at the end of several months of hearings before the BZA, including a May meeting that lasted nearly three hours.
The May and June meetings involved testimony from both those for and against the variance for the area zoned as Agriculture 1, which has been used for such a racecourse for more than five years now, with no endorsement from the county.
The petitioner was Jeff Cantonwine, owner of the property at 474 W. CR 50 North. Speaking out against the variance was Mark Smith, another property owner in the area.
The BZA heard arguments on a number of subjects, including noise, litter, traffic, safety and economic impact, but the ruling had to be based on the following five findings of fact, as mandated in the Putnam County Zoning Ordinance:
1. The approval will not be injurious to the public health, safety and general welfare of the community.
2. The use and value of the area adjacent to the property included in the variance will not be affected in a substantially adverse manner.
3. The need for the variance arises from some condition peculiar to the property involved.
4. The strict application of the terms of the Zoning Ordinance would constitute an unnecessary hardship if applied to the property for which the variance is sought.
5. The approval does not interfere substantially with the County Comprehensive Plan.
Although points were made on both sides of each of these five issues, the 5-0 vote to deny the variance seemed to come down to the first finding of fact for most of the BZA members.
With an eye to "the public health, safety and general welfare" of Putnam County, all five members balked at the idea of violating Indiana law and possibly leaving the county open to substantial lawsuits.
This was one of the main points made to the members in a letter from County Attorney Jim Ensley, who was out of town Monday for a birth in the family.
Ensley advised that the races, which cross county roads as well as go through waterways and even under roads through culverts, violated Indiana Code in four ways.
First, by crossing roads, the races would involve drivers under 16 years of age operating ATVs on county roads. Secondly, the vehicles are operated at excessive speeds, which is also in violation of code.
Additionally, the courses often involve driving through a creek in the direction of the current. Driving in streams is only allowed in order to directly cross them.
Finally, the races involve the use of the public property without state consent.
Ensley further advised that the county's risk management firm Bliss McKnight did not recommend the approval, although they would not go so far as to say the county's coverage would be dropped.
Ensley also contacted the liability insurance company used by the two racing series, and the company had not answered his question on whether the coverage would apply in a case that state law is being broken.
Most telling in Monday's decision were the votes to deny from board members Raymond McCloud and Kevin Scobee, both of whom voted to allow the variance in May, when the motion failed in a 2-2 tie.
McCloud said he had problems with unlicensed drivers on the road, saying breaking the law could open the county to a major lawsuit and cost a lot of money.
"We have to meet all five (findings of fact) and that's the major one," McCloud said. "I can't vote to put the county in a lawsuit."
Scobee said it simply came down to the insurance in his mind.
"I would grant him (Cantonwine) a variance if it wasn't for the insurance," Scobee said.
Ron Sutherlin, who appeared he would be the swing vote after missing the June meeting, was also swayed by the insurance questions.
"My biggest concern is dealing with the insurance -- the risk that the county is put in because of the road and the creek," Sutherlin said.
Randy Bee and Lora Scott, who chairs the board, objected on more than one count, although only one is required.
Bee was worried about the health, safety and welfare aspect, but said he also believes the ground could be put to another agricultural use and that the approval would interfere with the Comprehensive Plan.
Bee pointed out that Cantonwine had formerly used the land for hog lots until the operation was shut down by the Indiana Department of Environmental Management. He could have, Bee said, chosen to build a hog confinement operation.
"That's his choice in not electing to invest in that kind of operation," Bee said.
He went on to say that the land could be used for other types of livestock or to grow hay -- something Cantonwine is actually doing on the land.
Going back to work he had taken part in to create county zoning some years ago, Bee said the committee had believed that "God wasn't going to make any more tillable ground," therefore they wanted to create the A1 district and "stick firm to it."
In making this decision, he believed the BZA was standing firm.
Saying the decision had been weighing heavily on her, Scott denied the variance on all five findings of fact.
In addition to the objections of her colleagues, she said the variance was likely to impact property values and that nothing "peculiar" existed to keep it from being an A1 piece of property.
But even in Scott's objection, the strongest argument again came in the first finding of fact, saying it could create a county liability and a high financial risk.
"In fact, it could bankrupt the county," Scott said.
With the arguments of the five members made, the vote seemed a foregone conclusion. Bee made the motion to deny, which was seconded by Scobee.
In a role call vote, each member cast an "aye" vote to deny.
The BZA denial comes following mixed results before three other boards in the last year.
In February, the City of Greencastle BZA voted 3-1 to allow the variance. The City also has jurisdiction in the area because it lies within its two-mile fringe.
In November, the Putnam County Commissioners voted 2-0 against allowing racetracks as special exceptions in A1 districts. This followed the County Plan Commissions vote to allow such exceptions.
The argument may still not be at an end, however, as Scott pointed out at Monday's meeting that regardless of the outcome, the decision could be appealed in a court of law.