Vanderburgh County
Rezoning Board
December 17, 2001
 
The Vanderburgh County Rezoning Board
met in session this 17th day of December, 2001, at 7:35 p.m.
in Room 307 of the Civic Center Complex with President David Mosby presiding.
President Mosby: Call to order the
Vanderburgh County Rezoning meeting for December 17, 2001.
Commissioner Mourdock: Motion to approve
minutes of the previous meeting.
Commissioner Fanello: Second.
President Mosby: I have a motion and
a second. So ordered.
President Mosby: First readings. Petition
A, VC-1-2002, University Shopping Center, Incorporated, 111 North Red Bank
Road, Request from Ag to C-4. VC-2-2002, Petitioner: Gene Whitney Properties,
401 North Elm, R-1 to R-3. VC-3-2001, Petitioner: Catherine Elbert and
Linda Kay Elbert, 4950 Seven Hills Drive, from Ag to R-1.
Commissioner Mourdock: On first reading,
I will move approval of the three zonings.
Commissioner Fanello: Second.
President Mosby: I have a motion and
a second to approve on first reading.
|
Final Readings: VC-16-2001: Petitioner: Martin
Woodward 15515 N. Posey County Line Road Request: Ag to C-4 with UDC
|
President Mosby: Final readings. Tonight
we will hear VC-16-2001, Martin Woodward, 15515 North Posey County Line
Road, Poseyville, Indiana, Request from Agricultural to C-4 with use and
development commitment.
Martin Woodward: I'm Martin Woodward.
My attorney is here somewhere. I don't know where he has gone.
Commissioner Mourdock: Mr. Bohleber
represents Mr. Woodward, I believe.
President Mosby: Yeah, he does. I
got the letter-
Martin Woodward: If you could wait
just a minute.
Philip Hayes: He was here earlier.
Martin Woodward: Yeah.
Commissioner Mourdock: If as he walks
in we say, so ordered-
President Mosby: Yeah, that's fine.
Commissioner Mourdock: -approved and
so ordered.
President Mosby: I don't have a problem
with that.
Unidentified: Here he comes.
Steve Bohleber: Boy, when you say
ten minutes, you mean ten minutes. Mr. Shively and one of my clients come
running to get me. I apologize. Lady and gentleman, I represent Mr. and
Mrs. Martin Woodward, and I'm Steve Bohleber. The Woodwards are the petitioners
in this petition. I don't want to repeat myself from the Plan Commission
particularly, but so I'll do this very quickly. Mr. Woodward has operated
a back hoe and concrete business at this site for the past nine years.
It's adjacent to his home. It has not only provided financial support for
the family has serviced customers throughout the area, and often many of
his neighbors as well. He recently sub-divided the lot, which is the subject
of this rezoning, and now is seeking to rezone a portion of it. All the
documents, including my letter of December 13th, describe that
section as 1.14 acres. The actual legal description would reflect that
there is 1.256 acres, I believe. So, there have been several scribbners
errors made in that regard, but the legal description does reflect the
slightly larger parcel. That doesn't include the residential portion of
the Woodward property, or the residential portion of the sub-divided lot.
Unfortunately, he does need this C-4 classification to allow the business
to operate, and to make the improvements that he intends to make at the
site. The site plan that was submitted to you does show the conceptual
plan for a proposed office and a shop building of 2,400 square feet on
that location. Yet he's been operating there, but he wants to improve it.
We believe this will improve, will result in a more functional and pleasing
operation. There is a use and development commitment submitted, since it
is a C-4 use. The only types of activities permitted are those that we
felt were consistent with the types of services provided by my client,
Mr. Woodward, historically. Everything else has been excluded. He has no
intention of changing his business operation. No intention of doing anything
different than he has done over the past nine years, but simply wants to
bring into compliance with current zoning regulations. We've encountered
no opposition in the neighborhood. No one showed up to remonstrate at the
Area Plan Commission meeting, and it has been our opinion all along at
this remote location, and the type of business is really not a detriment
to the neighborhood. The pole barn structure that he envisions, the type
of equipment that he uses to operate in his business are very similar in
appearance and size and configuration to the agricultural buildings and
the machinery used in connection with that throughout the neighborhood.
This matter comes with a 9-2-1 due pass recommendation from the Plan Commission.
Mr. and Mrs. Woodward are here to answer any questions, as am I, and we
ask for a positive consideration from the Commissioners. Thank you.
Commissioner Mourdock: One question,
Steve, the use and development commitment is specific to the Woodwards,
is that correct?
Steve Bohleber: No. It's specific
to the land.
Commissioner Mourdock: Okay, so-
Steve Bohleber: But it's specific
to the Woodward's use of the land. He doesn't plan to do anything different.
Expand his business.
Commissioner Mourdock: Right, but-
Steve Bohleber: This is his home.
This is his business. This is where he's (Inaudible).
Commissioner Mourdock: -if Mr. and
Mrs. Woodward sold their property to John Smith, would John Smith have
the rights to do-
Steve Bohleber: Yes.
Commissioner Mourdock: Okay.
Steve Bohleber: Yes, it's the standard
use and development commitment . There's not one that's specific to the
current owners. It's just specific to their use, which they anticipate,
probably for the rest of his life, and beyond, if the kids take up the
business? Okay.
President Mosby: Any other questions?
Is there any remonstrators that would like to speak? Seeing none. Chair
would entertain a motion.
Commissioner Fanello: Motion to approve.
Commissioner Mourdock: Second.
President Mosby: I have a motion and
a second. Commissioner Mourdock?
Commissioner Mourdock: Yes.
President Mosby: Commissioner Fanello?
Commissioner Fanello: Yes.
President Mosby: Commissioner Mosby,
yes. Being three yes' and no nays, it goes (Inaudible) due pass, passed.
Excuse me.
|
VC-17-2001 & VC-18-2001
Petitioner: Three I Properties
LLC
600 & 601 E. Boonville-New
Harmony Road
VC-17-2001: Request: Ag and R-1
to C-4 VC-18-2001: Request: Ag to C-4
|
President Mosby: Next we will hear
VC-17-2001, Three I Properties, 600 East Boonville-New Harmony Road, Agricultural
to R-1 and C-4.
Commissioner Mourdock: And I think
you want to hear concurrently this one and the next one? Is that correct?
Les Shively: Yes.
Commissioner Mourdock: David, so.
President Mosby: Okay. Then VC-18-2001,
Three I Properties, 601 East Boonville-New Harmony Road, Ag to C-4.
Les Shively: Mr. President and members
of the Board of Commissioners, my name is Les Shively, representing the
petitioner, Three I Properties LLC. My presentation will concern both petitions.
I have given you all a map, a drawing, prepared by Bernardin Lochmueller
Associates, Jim Farney from that firm. Back in December of 2000 the area
in green as we start to the west and move east was rezoned to C-4. The
first part of last year, or this year, we came to you with a request to
rezone an additional eight acres, part of which would be on the north side
of Boonville-New Harmony Road. The balance which would be on the south
side. That request was denied by the Board of Commissioners. We since then
have modified the request down to 5.7 acres. The area that you see that
is in pink or salmon, depending upon how you identify the color, is the
area that is being rezoned now. A part of that, which is cross hatched,
has already been approved as a parking lot facility under a special use
permit granted last month by the board of zoning appeals. We have also
entered into a use and development commitment , a revised use and development
commitment, with folks that were here before you, I believe in February,
the Voice for Opposition, that were represented by Mr. Bohleber, who is
present here this evening. Essentially, without reading that verbatim,
we have eliminated 52 commercial uses on, in the pink area being rezoned.
We have left, we have left in the provisions that were there before that
is anything that we do out there, before we pull any permits, we will have
to complete a traffic impact study to be reviewed by the Indiana Department
of Transportation, the Evansville Urban Transportation Study, and Mr. Stoll,
your County Highway Engineer. In addition, we have set forth buffers for
the north, and buffers on the very sides. We've also, in very great detail,
and this is the input from the neighbors, from Mr. Bohleber's clients,
outlined how the parking lot will be laid out with landscaping and such.
This was negotiated in great detail, and with a lot of effort by both sides,
and what is attached and was approved by the Plan Commission at it's meeting
earlier this month incorporates those negotiated provisions in the use
and development commitment, which will be part of the rezoning ordinance,
if adopted here this evening. In addition, the area that's still shown
in green, the far eastern area, where the existing lake is located, we
have entered into a private covenant with adjacent neighbors, landowners,
which in effect keeps the property at it's present classification, and
prevents it from being changed, the northern portion for a period of 35
years, the southern portion a period of 15 years, with some other stipulations
in there as well. We understand that you can't enforce, cannot enforce
those private covenants. However, the reason I'm making them a record here
this evening, is that is a representation that everyone is relying upon
in doing this rezoning request. As you know, state law provides if you
find out that we've misrepresented something, you can request of any party,
or on your own, you can nullify any approval you may have given. So, we
are simply entering that of record because since everything is not completely
signed yet, so we keep our good faith commitment to the residents out there.
Also representation I made to this Commission back in October, when we
requested to come back in less than one year, representation, the commitment
that I made to your counsel that we would dismiss the pending law suit
before we came back to you. I am pleased to represent, it's dismissed.
It's finis, finished and the judge, I believe it was Judge Meyer, a special
judge in this case will be sending us an entry any day now. We have filed
our dismissal, and that law suit has been eliminated. Again, that's pretty
much an overview of what took place. It took several months to work it
out. Mr. Bohleber very vigorously represented his clients. I think we have
a good result here that balances all of the interests. For your information,
the vote on these two petitions, respectively, was ten in favor with two
abstentions. The other petition, the one for the south side, was 11 in
favor, with one abstention. Mr. Jim Farney, Bernardin Lochmueller, is here
this evening to answer any technical questions regarding this particular
request, or requests I should say. Mr. Bohleber is here this evening to
correct me if I say something that was not correctly stated with regard
to our agreement. Most importantly, the Broerman's are here, the McKinley's
are here, the Anderson's are here and the Habermel family is represented
because their property, the Welch's are not here this evening, but they
are the properties closest to this project, and also the properties we
are acquiring, which will also benefit, be the one's who benefit initially
if this rezoning request is approved.
Steve Bohleber: I can confirm to the
Commissioners that what Mr. Shively states is accurate. We do have one
of the two covenants that Mr. Shively made reference to executed. That's
the one for the parcels to the north, the 35 year restrictions, with Three
I Properties. Mr. Habermel, however, principal in Habermel Investments,
LLC, has taken a powder till the first of the year, apparently, for a vacation.
So, we don't have that signed, but upon Mr. Shively's representations made
here this evening, we are comfortable moving forward and saying that we
have reached a compromise and no longer have opposition to these rezonings.
I will leave with the Commission copies of the covenants, just for your
record, that we have entered into. Neither of these are signed. The one
with Three I Properties was executed, and I have that copy. The one with
Habermel Investments will be executed upon the return of Mr. Habermel on
January 2nd or thereabouts.
Commissioner Fanello: Do these covenants,
are they mainly to, I guess, address concerns of aesthetics more than anything?
Steve Bohleber: Actually, these two
covenants address adjacent property that is not the subject of this rezoning.
They provide an additional buffer by requiring that property to remain
residential, one for 35 years, one for 15. Which means, in essence, that
there can be no commercial rezonings petitioned for, or approved during
those time periods. So, they should remain pretty much the same. The only
exceptions we have is if the government condemns those properties, or a
significant portion of them, then that would take this off the rolls, and
also if there is some adjacent rezoning all around it-
Commissioner Fanello: Uh-huh.
Steve Bohleber: -that would permit
them to do it, so.
Commissioner Mourdock: So the covenants
actually cover the green shaded area?
Steve Bohleber: Yes. The covenants
cover areas beyond the scope of this rezoning that are under the control
of the principals of Three I. One parcel being owned by Three I LLC, the
other by another LLC that's owned by one of the principals, and that's
Mr. Habermel, and he's the one that is on vacation. So, the covenants themselves
impact, not what you are considering here this evening, but they are a
consideration for my clients not opposing this rezoning.
Les Shively: But that doesn't (Inaudible),
as you recall, the big concern was rezoning out to Old State Road.
Commissioner Fanello: Uh-huh.
Les Shively: We took the area in green
out of our request, pared it down to 5.7 acres. Mr. Bohleber, who's representing
his clients, said, well, that's fine, but what prevents you from coming
back next year-
Commissioner Fanello: Uh-huh.
Les Shively: -after you've already
zoned the 5.7, and that's when the covenant came into place, suggested
by Mr. Bohleber, representing his clients. So, basically, that's why the
covenants are in place to at least preserve this are in it's present classification,
assuming other things don't change around it. To keep it at it's present
classification so that Mr. Bohleber and his people don't have to keep coming
back here every year.
Steve Bohleber: Right, and then again,
this is the portion of where Mr. Habermel has a 15 year restriction, the
portion to the north is a 35 year restriction against any commercial or
industrial sites.
Commissioner Fanello: So, basically,
a safe guard against future development?
Steve Bohleber: Yes. Yes.
Commissioner Fanello: Which really
doesn't address my concerns about traffic.
Steve Bohleber: Well, the traffic
concerns have been addressed.
Commissioner Fanello: Well, I'm looking
at this letter from November 5, 2001 from INDOT. So, I guess, Jim, do you
have any comments on?
Jim Farney: My name is Jim Farney.
I'm with Bernardin Lochmueller. I'm an engineer on the project. We did
do a traffic impact study. We had a meeting with INDOT approximately, I
think, I think it was around November 3rd, or thereabouts, regarding
this project. It was held at the local sub-district. Present at that meeting
was a EUTS representative and also John Stoll. We discussed the project
and the traffic considerations that surrounded the project for about an
hour. It was concluded that there were two things that the state wanted
us to add to the traffic impact study; number one being the left turn lane
for the west bound approach, which would be the road in front of, between
the north and south end of the (Inaudible). That lane would be extended
further east through the intersection into the project, onto Old State
Road to increase the length for that turn lane. At that meeting we concurred
and agreed to do that. The second item that was discussed in that meeting
is the need to lengthen the right turn lane, northbound on 41. When we
did the original traffic impact study, that study made the assumption that
there would be a right on red that would be allowed at that intersection.
It's from that that we derived our length. However, Dale Lucas, with INDOT
suggested that he didn't want us to assume that was available. Therefore,
taking that into account, that added, I think, about 200' onto the length
of that lane. We concurred or agreed to do that. Shortly after that then,
we wrote a letter to the state saying that we agreed to do those two elements,
and then in response to that there was a letter forwarded from EUTS, I
think, first that said that they were in agreement with that, but suggested
that if there need be consideration for additional right-of-way granted
for a future lane that could be built on Boonville-New Harmony Road as
part of an INDOT study or plan project to improve 41 from, I think, Petersburg
Road up to this location. With that response in their letter, then, I think,
INDOT followed up with this letter that you've got here tonight. They may
have reiterated that about the right-of-way or not, I don't know if it.
Then last, in response to that particular request, at this point in time,
we have, or the state I should say, currently has 90' of right-of-way in
that stretch. We are proposing as part of this traffic impact study to
build five lanes, 12' lanes, which would be 60', in that 90'. So, if they
were to build, or want to build another lane in the future, that would
bring the total pavement width from 60' to 72'. That's still less than
the 90' that's there.
Commissioner Mourdock: And that's
for the entire Boonville-New Harmony stretch from 41 to Old State?
Jim Farney: That's from the 41 to
the entrance. Beyond the entrance, I don't think they ever planned on widening
the road, but if there is additional right-of-way required on the north
side of Boonville-New Harmony Road, I think I'm speaking on behalf of Three
I, that that's not a problem in granting that.
Commissioner Mourdock: I thought I
heard you say a moment ago that you were going to widen all the way to
Old State.
Jim Farney: We are going to widen
the road all of the way, yes.
Commissioner Mourdock: Okay.
Jim Farney: The widening, what it
will add to the original traffic impact study is one additional lane on
Boonville-New Harmony between the entrance and Old State Road to create
that additional length of left turn lane. Now the other thing that that
accomplishes and helps out is, if this rezoning is passed tonight, you
can see on the part that's salmon shaded that the, to enter into the properties
to the south, the intersection will, the drive will line up with the intersection
to the north. That is why it's very important that that rezoning be approved
tonight. But the addition of that lane from that intersection east to Old
State Road will allow a short left turn lane for someone wanting to negotiate
a left turn into that south side. So, in light of that fact, we agreed
that it would be a good idea, along with INDOT, to add that lane, or lengthen
that lane all the way back to Old State to provide that additional left
turn, plus provide additional storage for the left turn at 41. So, those
two lane improvements that were asked for at that meeting, we've concurred
with that, and in the letter we've said that, and this was Dale's response
to that.
Commissioner Fanello: (Inaudible.
Mike not on.) The last sentence in Dale's letter that says;
In addition INDOT also agrees with
EUTS recommendation that the right-of-way, if necessary, to construct an
additional 12' lane be dedicated to INDOT, so that if an additional lane
is required on Boonville-New Harmony Road that it could be constructed
during the future US 41 reconstruction project.
So, how does a reconstruction project
affect this development?
Jim Farney: The reconstruction project
that INDOT's talking about, they are saying that at that point in time
that they do that reconstruction project, they may deem that they want
to add another lane on to Boonville-New Harmony. What they are trying to
ask us is, is there sufficient right-of-way there at this time that they
would have room to do that if they decided to. Or should there be additional
right-of-way granted at this time to make that possible to do that at a
future time. What we've said so far is there is 90' of right-of-way, and
we're only using 60' of it for pavement with our project. So, we believe
there is adequate right-of-way there to add that lane in the future. Now
if EUTS or someone wants to come back and say, no, we want so many more
feet, then that needs to go back to the owners, but I would assume that
that can be worked out. At this time, I guess, our position is that we've
got 90' of right-of-way. So, we feel that we've got adequate room.
Les Shively: Does that answer your
question? Let me just point out again, Commissioner Fanello, the use and
development commitment requires that, number four, where it says;
Petitioner commits to conduct a Traffic
Impact Study for the proposed development. Petitioner further commits to
take all action necessary, including the dedication of any right-of-way
necessitated by the proposed rezoning request, in order to comply with
all requirements or recommendations made in the Traffic Impact Study and
that may be additionally made by INDOT and/or the County Highway Engineer
and/or Evansville Urban Transportation Study.
So, we are locked in to following
their recommendations, and our own traffic impact study as a condition
of development of this property. So, granting this rezoning incorporates
that condition on us being able to pull any permits or do any development
out there. So, we are locked into whatever INDOT dictates, EUTS dictates,
and the county dictates.
Jim Farney: I think what Les is saying
in that, I think, just to add to that is, basically, we, the understanding
that I have is we did the initial traffic impact study, we came up with
recommendations. We had a follow up, or final meeting, to discuss any changes
to that. EUTS was at that meeting, John Stoll and the state, and as a result
of that, what came out of that meeting that day were the two lane improvements.
That day there wasn't a question on the additional right-of-way. Since
then, EUTS has come out suggesting maybe they need right-of-way, and INDOT
has said that if EUTS thinks they need it, then we agree with that. So,
I guess, what, where we're at at this point, is we need a final directive
as to based on how much right-of-way is there and them understanding that,
if they feel like they need more right-of-way then, of course, what Les
has just read is we've agreed to give that to them. Is that correct, Les?
So, I guess, we are needing a final, in order to completely close it, we
need a final, we need something affirmative or not affirmative from EUTS
that says, yes, we want it, or no, we don't. In other words, they suggested
if we need it, we want it. Well, we need for them to say, yes, we don't
believe you've got enough, we need more. They need to say, okay, you've
got 90', that seems to be enough, we're okay. In either instance we've
agreed to conclude whatever they think they've got to have. If they think
that the 90' isn't enough, then, I guess, Dave should stand up here and
say it, but instead of me, but I think the response would be, yes, we'll
give it to you.
Les Shively: Let me also add this
too, one of the biggest issues back when we actually rezoned the area to
the west a year ago, was the fact they didn't like the idea of the proximity
of our entrance, proposed entrance. It was too close to the intersection
of and Boonville-New Harmony. This rezoning, much to the delight of not
only INDOT, the County Engineer, but also EUTS, moves that entrance further
to the east. Not only is it lined up with the south, but puts it at a location
which everyone of the traffic folks, the governmental traffic folks, feel
is far superior, and therefore this rezoning not only brings this other
property on line for commercial, it makes the property already commercial
safer and better for ingress and egress. We are sharing that ingress and
egress for all that land that's been previously rezoned, and what's before
you this evening. That's a major step forward that I think INDOT, EUTS,
and everyone was pleased with.
Jim Farney: Yeah, I think that's a
very good statement that needed to be said, that it's...this plan, the
current traffic impact study that INDOT has tentatively agreed upon, and
also EUTS and John Stoll is based on the premise that this property is
rezoned and this intersection into the properties can occur in this pink
or salmon shaded area. If this property cannot be rezoned tonight, then
we go back to having to move that intersection closer to 41, which no one
wants. No one being EUTS, John Stoll or INDOT. Basically, INDOT in their
light of the world, with only their concerns, would like the intersection
to be, of course, as far away as possible from 41. So, any opportunity
we have to increase that distance is only a betterment to the improvements
that we can make, rather than being forced to propose an intersection closer
to 41.
Les Shively: Can I just add, you know,
that the state and the county can only make us do things on the property
we own. If this rezoning doesn't go forward, then we are not compelled
to buy the property. We don't own it, and so we are going to have a substandard
ingress and egress point. If this rezoning is approved, then we've got
to buy the property from these folks back here who, obviously, want to
be able to relocate. Then because it's common ownership, then all of the
governmental agencies can force us to have common entrance, like we have
here, and can force us to have it as far east as it will work, as it will
go, and it's an overall better project. What you are seeing right now in
this correspondence is, normally that correspondence would take place after
the rezoning was approved. We're just a little bit ahead of the game, and
you are sort of seeing the back and forth that happens once the traffic
impact study is done, and you've got three governmental agencies looking
at it, and we're like 95% there before the rezoning is even approved. So,
we're a long way farther ahead of the game than we normally would be, but
the big news, the best news is the fact that if this rezoning is approved,
you have a far better ingress and egress point for the property that is
already zoned C-4. Incidentally, this will come back to you again for drainage
approval. That's another condition, we can't pull any permits or do anything
until we file our drainage plan and have you all approve it.
President Mosby: Excuse me, questions?
Commissioner Mourdock: Just formally,
any remonstrators? Seeing none. Are you ready? Do you have any other questions?
President Mosby: No, I'm ready.
Commissioner Mourdock: Okay. We do
need to vote on these, obviously, separately. So, I will move approval
of VC-17-2001, 600 East Boonville-New Harmony Road, from Ag and R-1 to
C-4.
Commissioner Fanello: Second.
President Mosby: I have a motion and
a second. Commissioner Mourdock?
Commissioner Mourdock: Yes.
President Mosby: Commissioner Fanello?
Commissioner Fanello: Well, I do appreciate
you all working together and trying to come to resolve, but I still have
major concerns about development on 41, so I'm still going to have to vote
no.
President Mosby: Commissioner Mosby?
I haven't changed my mind from the previous time. I still have concerns
further on back towards Old State Road, and I'm going to vote no.
Commissioner Mourdock: For VC-18-2001,
601 Boonville-New Harmony Road, Ag to C-4, I'll move approval.
Commissioner Fanello: Second.
President Mosby: I have a motion and
a second. Commissioner Mourdock?
Commissioner Mourdock: I'll again
vote yes, and note that with the Master Plan that is in place for the US
41 Corridor, I think this certainly fits as what they describe as a buffer.
I also think it sends a bad signal when we encourage people to leave this
meeting after, either APC or this meeting and tell them to work together.
They work together to come back so there are no remonstrators, and then
we change our mind, it appears. So, again, I vote yes.
President Mosby: Commissioner Fanello?
Commissioner Fanello: Just in response
to what Commissioner Mourdock just said, it's great to work together, and
I think they did work together very well, but the fact remains that there
are traffic problems on US 41. Things haven't been developed properly out
there. I'm still concerned about...the day I can drive down US 41 and not
think I'm going to get killed, then maybe I'll be happy about development
out there. That has nothing to do with residents working together. You
know, their concerns were, I believe, safe guarding against future development
out there as well. So, I don't know that their completely in favor of it,
they were just trying to meet in the middle. So, I'm still going to vote
no.
President Mosby: Commissioner Mosby.
Just to answer your one question, I will state for the record, I was not
here when this was brought up for reconsideration. Have I to this day talked
to anybody since the last rezoning meeting about any of this? The answer
is no. So, I've had no info on this, and I was not here at the reconsideration
meeting to vote that night. I vote no.
Les Shively: Mr. President?
President Mosby: Yes.
Les Shively: May I make an inquiry
of the Commission?
President Mosby: Sure.
Les Shively: I will request this,
first of all I was working through your counsel, because of the things
that were pending. We thought we had met all of the concerns. In fact,
we were told that, in fact, when we were here for the reconsideration,
I did not realize you weren't here, Councilman Mosby, I would have been
more than happy to table it at that time. I thought you were here at that
meeting, I don't recall you being absent at that meeting.
President Mosby: I believe I was in
Indianapolis, I think.
Les Shively: The only thing I recall,
the conditions were for us coming back is that we satisfy the concerns
of the neighbors, and that we come back and that we dismiss the pending
litigation, which we have done.
Commissioner Mourdock: Let me add
one more, that you address the issue of traffic going out on Old State
Road, which you have also done.
Les Shively: The point of the matter,
and I guess, Commissioner Fanello, you have a piece of property that is
commercial that will be given a, it will have to be given a cut on Boonville-New
Harmony Road. You have an area that has already been approved for parking.
What you are going to have and ,Commissioner Fanello, I know that your
interests are in the best interest of the people of Vanderburgh County,
but this rezoning resolves in, comparatively speaking, a sub standard development.
What I would respectfully request, and I know this is highly unusual, would
you feel better if we had everything signed, sealed and delivered with
INDOT, and with EUTS that showed that they had reviewed our plans, and
that we were doing everything they told us to do? Would that put you in
the comfort zone?
Commissioner Fanello: I don't know.
You made an interesting comment earlier that we've seen more information
because you've kind of given more information than you usually get before
rezonings. I think that is good. I just have a lot of concerns about development
on 41. I don't know, I mean, not knowing what that correspondence would
be, or what their answers would be-
Les Shively: They basically have said
the only thing left is the commitment to donate additional right-of-way.
I've told you here, we've told you here this evening that my client is
prepared to donate that right-of-way. He is committed to do that directly
or indirectly as a result of the use and development commitment . What
I'm saying to you is, if that is somehow in writing where the tender of
the right-of-way is made and accepted by the state, because, again, I reiterate,
we are improving an area for development that has already been approved
for C-4. Plus we're eliminating a lot of the high traffic generators. What
I, and Commissioner Mosby, with all due respect, I certainly, it was not
my intention to keep the Commission in the dark. In fact, we communicated
through your counsel. Did the things we were supposed to do, and I tried
to do it in a professional way. I'm just, I have to admit to you, I'm somewhat
surprised and I don't know what more we can do. Here's the other unfortunate
thing, these folks back here, homes will remain here. This was an opportunity
for them to relocate. It also was an opportunity for Mr. Bohleber's clients
to not have to come back year in and year out. I'm not saying that there
is going to be other developments, petitions out there and such, it was
going to provide a permanent 35 year covenant, private covenant, protecting
this area. I would respectfully request an opportunity to come back. Commissioner
Mosby, again, I am more than happy to meet with you at any time. If that
is appropriate. To have Mr. Farney meet with you, but I, if there has been
a miscommunication here, I will on behalf of my clients will take that
responsibility. I thought we were working through the appropriate channels.
I would like to have the opportunity to come back the first of the year
and be able to fill in any of the gaps, but as you can see, there are no
landowners out there that oppose this. In fact, everybody is benefitting
from this, including the public in general, because, again, I don't want
to repeat myself, you have a tract of land that is already ready to go
that is, unfortunately, going to have a relatively sub standard ingress
and egress because of where this thing stands today. I'm simply asking
you to, I know you have a lot of stuff on your plate lately, I just would
like to have an opportunity to answer any questions you might have, and
please reconsider this. We could come back at your January 14th
meeting. I would appreciate being able to do that. There is no remonstrators
here. All the affected people are here this evening, and I think you could
appropriately do that. Mr. Mosby, I will make myself available to you at
any time and place to and you can have anybody there to answer the questions.
I'm sorry, I thought we had covered everything.
President Mosby: I don't know that
it can come back without a reconsideration, but the point I was making
when Mr. Mourdock made his comment is, I was not here at the meeting where
you voted for reconsideration. I didn't make any commitments to anybody.
I just wanted to clarify that and leave it at that.
Les Shively: No, no, Mr. Mosby, I
didn't signify that you had made any commitments.
President Mosby: I didn't say you,
I said when Mr. Mourdock made his comments in his vote, that he kind of
made, acted like, maybe somebody led you on. I was not here at the reconsideration
meeting. I didn't vote, and I didn't lead anybody on.
Commissioner Mourdock: My comments
were not regarding the reconsideration meeting anyway. My comments were
in regards to when this came the first time and was voted down, that's
when the comments were made about the access on to Old State Road, and
the necessity of having the neighbors protected with some long term covenants.
During the reconsideration meeting, and I don't have the minutes in front
of me-
Commissioner Fanello: (Inaudible)
really said anything.
Commissioner Mourdock: -yeah, all
it was, is are we going to hear this again? And the answer was, two to
nothing, yes.
Commissioner Fanello: I know there
were no commitments from me that night.
Commissioner Mourdock: No commitments
from Catherine or me.
Les Shively: The fact, and-
President Mosby: At that point I wouldn't
have misled them and I would have voted no.
Commissioner Mourdock: And it still
would have passed, two to one.
President Mosby: Exactly, but I would
have been on the record.
Jim Farney: Can I add something to
this, if I may? I don't want to be repetitive, but I do want to try to
get the point across that I have as an engineer. As an engineer I feel
that it is very vital that this salmon piece be rezoned. If this salmon
piece is not rezoned, it makes it much more difficult to engineer as well
as we could with the salmon piece the project as it will be. Because, as
Les said, that part of it is already rezoned. I really, you know, I think
it would be very important for you Commissioners, if this is possible,
to discuss this project with any technical staff you have, be it EUTS,
be it John Stoll, be it State Highway, be it Dale Lucas. I think everyone
of those entities will tell you that this is a much better situation than
what you currently have, and what was rezoned previously. I really faithfully
believe that, and I think that you need, I think you should take the time
to discuss this project with those peoples and get their inputs.
Commissioner Fanello: I guess my question
right there would be, I guess, if they are talking about the other, this
rezoning really needs to happen to go along with the other rezoning, why
was the other rezoned in the first place first?
Les Shively: We didn't-
Commissioner Mourdock: They didn't
own the land.
Commissioner Fanello: Oh.
Jim Farney: They don't own the property.
Les Shively: Ms. Fanello , let me
explain what happened.
Commissioner Fanello: Because I don't
know the sequence of events.
Les Shively: The sequence of events
were this. After we rezoned this property, we were approached by the landowners
that live closest to it. They were, obviously, wanted to look at the possibility
of selling their property and being able to relocate. So, the people most
affected by that rezoning we accommodated, and said, and we worked out
a number with all of them, and said we'll buy your property if we can get
it rezoned. So that's then when this took place. In the meantime, there
was a prospect, a couple of prospects which would justify economically
buying these people's property and moving forward to expand the project.
Plus, there again, I know we've said it several times, when this rezoning
was approved, December of 2000, comments were made that, gee, we wish you
owned property further to the east so that you could move that access point
further to the east. We said we didn't, but we also, in effect, said if
we did, we would. Well, now we, well, we don't, right now, but we would.
If the concern is 41, I mean, that horse is out of that barn, and we've
eliminated 52 commercial uses, including truck stops, all those high traffic
generator situations, which there in effect, in itself, is a significant
reduction. Plus we're now working with the state well farther in advance
than most developers ever do. I mean, we've committed, what INDOT tells
us to do. What EUTS tells us to do, what the County Engineer tells us to
do. We're going to have to do it whether we like it or not in order to
pull any permits, to be able to build any buildings, to be able to sell
any property out here. It's going to be a far better project than just
selling this acreage that has already been rezoned and using the area that
has been approved, especially used for parking. I respect the Commission
because the way our zoning laws are set up is that the elected official
should have the final word. If there is something, information that you
don't have, I take it as my responsibility to get that information to you.
Again, I thought I was working through the proper channels, and I would
like to have the opportunity to answer any more questions that, again,
as Mr. Farney suggested, have you all independently through whoever you
want to talk to Mr. Lucas at the Vincennes office of INDOT. Or have someone
from EUTS, or Mr. Stoll, I mean, whatever you need we can provide. We are
committed to do whatever they tell us to do anyhow, but if seeing it in
writing, or for them to say, hey, we've looked at their plan, we believe
these folks can do this. Then, if it takes another two or three weeks to
do that, fine, but please don't ruin the dream for these folks and don't
prevent this project from being a quality project, and something that enhances
what's already out there, makes it better. So, I would respectfully ask
that this, that you this evening orally accept our request for reconsideration
and put this on your January 14th docket.
Commissioner Mourdock: Let me ask
the question of staff, Bev, and I don't recall one coming back to us, in
effect, a third time, or coming to us a third time. Is there any reason
that you know of through the APC ordinances and rules that we could not
do that? Oh, just happen to have it in front of you, okay.
Philip Hayes: (Inaudible. Mike not
on.) 17.36.070, Time Limits, Section B says that there is an exception
to the rule that a denial by the County Commission prohibits the Area Plan
or the Commission from hearing the petition on that property or any part
thereof for 12 months after the date of denial, but the exception is that
by a unanimous vote of the County Commission, then that may be heard at
an earlier time. So, the body could by it's unanimous decision consent
to rehear the petition or a part thereof, and that would apply to both
of those.
Les Shively: Also the vote in this
case was not a recommendation of denial by the Plan Commission.
Philip Hayes: We understand, right,
there was not a denial recommendation before.
Commissioner Mourdock: Right.
President Mosby: Is that a unanimous
vote of the members present?
Philip Hayes: It would be a unanimous
vote, it just simply says of the County Commission-
President Mosby: Then I guess my question
is-
Philip Hayes: --a quorum, yeah, I
couldn't answer whether that's of a quorum or not.
President Mosby: Well, my question
is, when you heard it the first time, it was illegal. I thought that when
I heard that. When I got back in town, because you heard that for reconsideration
on a night I was gone. If it takes unanimous approval of this body, you
only had two present.
Philip Hayes: It does say unanimous.
President Mosby: That is the rules
for reconsideration. The same rules we used over in the City Council.
Commissioner Mourdock: Well, I'm not
sure that's the case, but let's assume it is for a moment. We can correct
that mistake. I move approval, or I will move that we rehear this petition,
or these two petitions at the regularly scheduled zoning meeting of January
2002.
Les Shively: May I just request this?
I mean, I didn't mean to get in the middle of your motion, but if in so
you would place it on the January zoning docket, so there is no confusion,
we will renotify all adjacent land owners. Although, I don't know that
necessarily is required, to make sure that everyone understands that this
is back on the docket, and everyone has an opportunity to be heard. So,
that we haven't left any stone unturned.
Commissioner Fanello: (Inaudible.
Mike not on.)
Philip Hayes: You have a-
President Mosby: There is a motion
on the floor.
Philip Hayes: I'm sorry.
President Mosby: I'm not seconding
it.
Commissioner Fanello: (Inaudible.
Mike not on.)
President Mosby: It dies for lack
of a second. Is there any other questions or comments?
Commissioner Mourdock: Motion to adjourn.
President Mosby: I have a motion,
hold on a second.
Commissioner Fanello: To adjourn?
President Mosby: Yes.
Commissioner Fanello: Second.
President Mosby: I have a motion and
a second. So ordered.
The meeting was adjourned at 8:20
p.m.
Those in Attendance:
David W. Mosby
Catherine Fanello
Richard E. Mourdock
Philip Hayes
Beverly Behme
Madelyn Grayson
Steven Bohleber
Les Shively
Jim Farney
Others Unidentified
Members of Media
APPROVAL:
VANDERBURGH COUNTY
BOARD OF COMMISSIONERS
______________________________
David W. Mosby, President
______________________________
Catherine Fanello, Vice President
______________________________
Richard E. Mourdock, Member
Recorded and Transcribed by Madelyn
Grayson
|