Board of Zoning Appeals affirms certificate of completion for Franklin Street Lofts fence, 4-2

At its June 18 meeting, the Board of Zoning Appeals affirmed a staff decision and the building commissioner—s certificate of completion for an opaque fence at 400 North Seventh Avenue, sustaining the certificate by a 4-2 vote.

The appeal was filed by Franklin Street Lofts LLC, represented by attorney Jim Johnson, who told the board the fence installed along the property line uses repurposed trailer sides, is not uniformly colored or attractive and does not match the applicant—s approved site plan, which specified a "white, opaque, metal fence." Johnson asked the board to revoke the certificate of completion and require installation of the fence shown on the site plan.

Area Plan Commission staff had inspected the completed fence in February and determined it met the objective definition of an opaque fence in the Evansville Municipal Code (Title 18, Chapter 18.05.030). Staff—s written report cited the code—s definition of "opaque fence" (materials such as painted rust-proof metal, vinyl or treated wood so long as it is durable, uniform and attractive) and recommended upholding the certificate.

Laura Scott, attorney for the neighboring property owner/operator (identified in the record as BNAB / Vision 4 and represented on-site by Andy Cosgrove), told the board the fence was built from recycled metal with a white automotive powder coating and that what appears in photos as underlying colors are the result of natural wear of the powder coat over time. "We were certainly satisfied with the certificate of completion that was issued, and we feel like the staff's decision should stand," Scott said.

Board members discussed two strands of authority: whether compliance should be judged only against the zoning code definition of "opaque fence" or whether the board should also enforce the additional color detail (the word "white") that the applicant included in the approved site plan. Several members said the zoning code sets objective criteria and that color notes on a site plan are not part of the code language staff enforces at inspection.

Members and the applicant discussed potential remedies short of removal, including painting the panels and installing planted screening. John Clark, a Franklin Street Lofts owner, said the repurposed panels are factory-coated aluminum that has begun to show undercoatings and that painting would need to be done correctly to last.

A motion to affirm the staff decision (thereby leaving the certificate of completion in place) carried 4-2. The roll call as recorded in the hearing transcript showed four votes to affirm and two to reverse. The board chair directed staff that future site plans and inspections should be written and documented carefully to make clear what elements (code requirements versus voluntary site-plan details) are conditions of approval.

The board cited Evansville Municipal Code Title 18, Chapter 18.05, in its discussion about the definition and objective criteria for an opaque fence and the limits of subjective aesthetic requirements.

The effect of the board—s action is to leave the building commissioner—s certificate of completion intact for the project at 400 North Seventh Avenue; the board did not impose additional conditions at the hearing.