VANDERBURGH COUNTY

REZONING BOARD

JANUARY 16, 2007

The Vanderburgh County Rezoning Board met in session this 16^th day of January, 2007 at 4:30 p.m. in room 301 of the Civic Center Complex with President Cheryl Musgrave presiding.

President Musgrave: We’ll go ahead and open the rezoning, for the agenda for the Vanderburgh County Commissioners, January 16, 2007 at approximately 4:30, advertised at 3:30.

President Musgrave: I understand that the first thing we need to do is elect a President.

Commissioner Nix: Excuse me, I make a motion that we re-elect Commissioner Musgrave as President.

Commissioner Tornatta: Second.

Commissioner Nix: All in favor? Oh.

President Musgrave: All in favor?

All Commissioners: Aye.

President Musgrave: Do we also have a Vice President at this? It’s been a year since we did it last time.

Commissioner Tornatta: I recommend Commissioner Nix as Vice President.

President Musgrave: And I will second that. All those in favor of Commissioner Nix being Vice President say aye?

All Commissioners: Aye.

President Musgrave: The motion carries.

President Musgrave: We go now to first readings.

Madelyn Grayson: We need to approve the minutes from November 21^st also.

President Musgrave: Is there a motion to approve the minutes?

Commissioner Tornatta: Motion to approve the minutes.

Commissioner Nix: Second.

President Musgrave: All those in favor?

All Commissioners: Aye.

President Musgrave: The motion carries.

Brad Mills: First readings, we have docket number 2007-4-PC, VC-2-2007, this is a zoning request at 3916 Charlotte Street, a change in zoning from agricultural to R-2. The next item is docket number 2007-5-PC, VC-3-2007, at 6511 and 6531 Petersburg Road, this is a request to change the zoning from C-1 to R-3. The last first reading is docket number 2007-6-PC, VC-4-2007, at 7800 Morgan Avenue. This is a change from agricultural zone to M-2 zone with a use and development commitment.

President Musgrave: Is there a motion to adopt these on first reading?

Commissioner Nix: So moved.

Commissioner Tornatta: Second.

President Musgrave: All those in favor?

All Commissioners: Aye.

President Musgrave: The motion carries.

Commissioner Nix: Do we need a roll call on that?

President Musgrave: Does this require a roll call, Mr. Mills?

Brad Mills: Not on first reading.

Commissioner Nix: Not on first? Okay, I’m sorry.

President Musgrave: Okay.

Brad Mills: Alright, final readings? Alright. We only have one item tonight for final reading, and that is 2007-2-PC, VC-1-2007, Spurling Development is requesting to rezone two parcels located at 5103 Spring Valley Drive to C-2. The 1.16 acre site located north of Spring Valley Road is requested to be zoned from agricultural to C-2. The 3.22 acre site along the south side of Spring Valley Road is proposed to be down zoned from C-4 to C-2, to allow expansion of the apartment development. Both sides are adjacent to existing retirement housing. The County Engineer has the following comments, “As a part of the settlement agreement between Warren Spurling, Broadway Summit LLC and Vanderburgh County, perpetual and non-revokable access easements must be dedicated between Heritage Park Subdivision and the Schnuck’s development. The perpetual access easement is required to eliminate the need for construction of Cullen Avenue between Davis Lant Drive and Spring Valley Road. The northern most parcel of the land that is proposed to be rezoned in this petition lies in the path of the proposed Cullen Avenue extension, therefore, recorded documents providing evidence that the perpetual, non-revokable easement must be provided prior to development of this northern parcel. If this perpetual, non-revokable easements do not exist, as required by law settlement agreement, there could still be a need for the extension of Cullen Avenue. Since the development of this northern parcel will eliminate any possibility of extending Cullen, no development of this northern parcel should proceed until it is verified that all required easements have been obtained.” This is a petition to rezone C-4 and agricultural to C-2, a commercial classification which will allow construction of apartments, a residential use otherwise prohibited in the existing zoning classification districts. The site is within an area designated as commercial within the comprehensive plan. The surrounding area is completely commercial with mixed commercial and high density residential uses. This down zoning from the existing heavy commercial designation to the lighter commercial C-2 designation, and the rezoning to C-2 of a small, undeveloped parcel surrounded by commercial zoning, is consistent with the overall development plan for the area, and is consistent with the adjacent commercial and residential development. On January 11, 2007 the Area Plan Commission voted seven yes, zero no, and zero abstention to recommend approval.

President Musgrave: Have we changed our processes? So, you’re not–

Brad Mills: We just didn’t bring it for the one rezoning.

President Musgrave: Okay.

Brad Mills: With that, I also had conversation with Mr. Spurling and with John Stoll about the documents required, that the perpetual easement had been recorded. It’s my understanding that it had been recorded, but there are some questions on that. So, you might call Mr. Stoll up to speak to that.

President Musgrave: Mr. Stoll?

John Stoll: I was forwarded a copy of the cross access agreement between the Spurling property and the Broadway Summit property. Everything looked okay other than at the tail end of the document there was a provision in there that allowed for termination of the cross access easement between Spurling and the Broadway Summit properties. So, I contacted the County Attorney about that. After speaking with Andy Spurling of Spurling Properties, Mr. Spurling had suggested that he could commit to taking care of that through a recorded document and making it a non-revokable easement. In speaking with the County Attorney, he agreed that that would be acceptable. I don’t want to put words in your mouth, but if you’ve got anything that I’m not stating here correctly, feel free to let me know. And, likewise, Andy Spurling can get up to the microphone as well and address what our end of the conversation was, but in a nutshell, the agreement would be modified, I guess, for lack of a better term, with a new statement indicating that the termination clause is eliminated, and that would take care of my concern with this. Other than that, the cross access easement addressed what it needed to as far as I was concerned.

President Musgrave: Has this document been filed?

Ted C. Ziemer, Jr.: The document has been recorded. The problem is, I mean, it was all appropriate in every case, described exactly the easements that were supposed to be described. In the end of the document it had a provision that either party could terminate the easement at any time. The settlement agreement specifically says that the cross easements must be perpetual. So, they did not comply with the terms of the settlement agreement. We’re not allowed to approve a rezoning on a contingent basis, so, we have two options. We can accept the word of the Spurling’s, on the record, that they will execute a document satisfactory to the County Attorney to make the cross easement for their part perpetual. We’ll have to get the same thing from Broadway Summit, but we can’t expect Spurling to do anything about that. So, if they make that statement on the record, that would be satisfactory, or we could put this off for a week and get this statement, I mean, get the document included within the next week, and approve the zoning next week, instead of today.

Commissioner Nix: My personal preference is to have it all cleaned up prior to us signing anything, because, I, you know, this board’s been told things before that never did take place, and I just, I just have a problem with that.

Andy Spurling: Thank you. Andy Spurling, 3201 North Green River. To clarify, the agreement is not able to be terminated by either party. It has to be terminated by both parties. So, it’s not a wildcard that Jim, I’m sorry, that Broadway Summit can do something aside from us, or we can do something aside from them. It’s typical language of a two party contract that states this is the contract unless we agree otherwise, basically. But, what the preparer of the document failed to realize is that other people are relying on it. I can affirm that we’ll correct that, and if we correct, I don’t believe Jim Vincent or Broadway Summit would need to correct it, because we would be agreeing that we would never agree to alter the contract without the county’s consent. So, I would appreciate it if you would approve it.

Commissioner Tornatta: What is, what is the time line? And, when would the next meeting be if that had to be accomplished?

Brad Mills: You could bring it back next week, if that’s your desire.

Commissioner Tornatta: Then, how long would it take you to get that document signed?

Andy Spurling: We would be the only one signing it, so, it would be, I would need someone to prepare it, and to have you review it, I’m sure.

Commissioner Tornatta: Ted?

Ted C. Ziemer, Jr.: What I would like to do, I understand what you’re saying, and I think I’m just looking at the document now and it does say that it would require both parties to agree to terminate it. I would rather have Broadway Summit sign it as well. If they don’t, I agree with you that if you appropriately agree with the county that you will never consent to the termination of that easement, then it can’t be terminated. But, in the next week, we could easily work with Broadway Summit and with Lakeside, I believe that’s the entity that’s involved here, is that right?

Andy Spurling: It’s, actually–

Ted C. Ziemer, Jr.: Lakeside–

Andy Spurling: –it’s actually Warren W. Spurling.

Ted C. Ziemer, Jr.: Well, according to the agreement, it’s Lakeside Development LLC, which is a limited liability company. That’s who will have to sign the revised agreement.

Andy Spurling: True, for the cross access. Then, yeah, and I can commit to that side of the drive. You know, Broadway Summit, I don’t know–

Ted C. Ziemer, Jr.: I understand that. I understand that. What I’m saying is, that, yes, it can be done within a week, if we have the cooperation of the parties involved.

Commissioner Tornatta: And, does this set you back in anyway? For one week?

Andy Spurling: If it’s a week, I don’t guess it’s going to, you know, it’s not going to hurt us, no.

Commissioner Tornatta: Okay, I mean, I didn’t know if there were things on the books–

Andy Spurling: We still have, we’ve been to site review, not site review, we’ve been to sub review for the apartment development, and we’re just kind of waiting for the pieces to fall in place, and this is one of them. But, you know, a week’s not going to kill us, if that’s what it takes.

President Musgrave: Has there been a motion to recess this meeting for a week, while those documents are prepared and brought back next week?

Commissioner Tornatta: I make that motion.

Commissioner Nix: Second.

President Musgrave: We have a motion and a second. Any further discussion? All those in favor?

All Commissioners: Aye.

President Musgrave: The motion carries.

Ted C. Ziemer, Jr.: Just as a housekeeping matter, Les Shively is your attorney on this, is he not?

Andy Spurling: I believe he is, yes.

Ted C. Ziemer, Jr.: Okay, would you instruct him to contact me, and we will work out what kind of a document we want.

Andy Spurling: Yeah, we’ll forward it to you directly.

Ted C. Ziemer, Jr.: Yeah, thank you.

Andy Spurling: Okay, thank you.

Commissioner Nix: I guess, we would not recess then? Or, we would recess, or how, what’s the procedure for that so that we can meet?

Ted C. Ziemer, Jr.: You know, actually, this is just a continuation of the meeting of the Commissioners. The Commissioners hold their regular meeting, and when that agenda is finished, you then hear rezonings. So, you didn’t have to recess the earlier meeting, or adjourn the earlier meeting. Nonetheless, this can be taken up at the regular Commission meeting next week, as part of your regular agenda.

President Musgrave: Without additional advertisement, is that correct?

Ted C. Ziemer, Jr.: Yes.

Brad Mills: That’s correct.

President Musgrave: Alright. Well, then we’ll have a motion then to adjourn?

Commissioner Tornatta: So moved.

Commissioner Nix: Second.

President Musgrave: All in favor?

All Commissioners: Aye.

President Musgrave: Mr. Mills, would you go ahead and bring the visuals. The folks at home like to see those.

Brad Mills: Be happy to do that, sorry.

(The meeting was adjourned at 4:49 p.m.)

Those in Attendance:

Cheryl Musgrave                      Bill Nix                                      Troy Tornatta

Ted C. Ziemer, Jr.          Brad Mills                                  Madelyn Grayson

Andy Spurling                           John Stoll                                  Others Unidentified

Members of Media

VANDERBURGH COUNTY

REZONING BOARD

Cheryl A.W. Musgrave, President

Bill Nix, Vice President

Troy Tornatta, Member

Recorded and transcribed by Madelyn Grayson.