The Vanderburgh County Rezoning Board met in session this 20^th day of January, 2009 at 5:25 p.m. in room 301 of the Civic Center Complex for the purpose of hearing county rezoning petitions.

Approval of the December 16, 2009 Rezoning Meeting Minutes

Janet Greenwell: Janet Greenwell with the Area Plan Commission. I would ask that you approve our minutes, the minutes from the last meeting.

President Tornatta: Step right up. I need a motion to approve the minutes, please.

VC-10-2008: Petitioner: Majestic Place LLC

Address: 333 & 815 S. Eickhoff Road and 201 & 351 S. Roesner Road

Request: AG to R-3, R-4 and C-4 with UDC

Action: Sent back to APC 3-0

Janet Greenwell: Yes, we have two petitions on your agenda tonight. The first is 2008-36-PC VC-10-2008. The properties on Eickhoff Road and Roesner Road. Majestic Place is requesting to rezone the 220 acre site to a combination of commercial and high density residential. I have been following the newspaper and following all this stuff, and I’m hearing that it’s being continued, but I would ask that you please take a vote, if you intend to continue it, to send it back to Plan Commission, so that the 90 day window doesn’t close and the Plan Commission doesn’t become a final action.

President Tornatta: Okay, and to that, I have received something from Shively and Associates, in association with Krista Lockyear, that says that there are possible amendments to the use and development commitments. That is following a line of discussion from the Westside Improvement and other people in the neighborhood. So, I’m going to submit that to the record, so that’s available. I would entertain a motion from our Commissioners.

President Tornatta: The motion is to actually continue this and send it back to Area Plan?

Commissioner Melcher: Yes, I think we just need to say that we’re not sending it back because of us. We were requested to send it back, because they want to do a special use. They’ve got one, but they are going to modify it, right?

Janet Greenwell: –take a vote within that 90 day window, after Plan Commission approved it, then the Plan Commission action will become final.

Commissioner Melcher: I understand that. That’s why last week I said we would have to vote on it.

President Tornatta: Right, and there is actually a meeting tonight, and we’re live, being January 20^th, and the time of that meeting, if you’re watching this meeting is 7:00 at the St., where?

President Tornatta: The St. Phillips Conservation Club. So, I expect it will be packed out there, to talk to the developers and their attorneys about any concessions that can be made, and any concerns that those people have, in that area. To reiterate, just for people to try and understand, if we don’t send this back today, and we don’t vote on this, the action of the 8-1 to approve will stand.

President Tornatta: Since we have both individuals, or both groups, the people that are against the development and the people who are trying to develop that want to send this back, obviously, this is a no brainer to do that.

President Tornatta: So, with no further discussion, I will call for a roll call vote.

Final Reading: VC-1-2009: Petitioner: Tim Moll of T&T Development Inc.

Address: 15901 Petersburg Road

Request: Change from AG to C-2 with UDC

Action: Approved 3-0

Janet Greenwell: The other petition we have on your agenda tonight is 2009-1-PC VC-1-2009. Its’ for T&T Development. They’re requesting to rezone the property located at 15901 Petersburg Road from agricultural to C-2 with a use and development commitment. It’s a ten and a half acre site located south of Baseline from Petersburg to State Road 57. It’s the old Kings Men’s Club. The Kings Men’s was a private, exempt religious organization, and the new owners want to do a commercial enterprise as a party house/meeting house. Just pretty much a continuation of the use that’s been there, but it will be a private entity and it will be a commercial enterprise, so it needs to be rezoned. The use commitment limits it to party house/meeting house, and the Plan Commission voted for, to recommend approval with 11 affirmative and one negative vote.

Justin Shofstall: Justin Shofstall with Easley Engineering. I just reiterate what Ms. Greenwell stated was, that again, that the Kings Men’s Club has been in operation since the early 1960's, for 40 plus years. The new owners purchased it, I believe they closed on October 6^th of last year, and are wanting to keep the same enterprise, as far as using it for the party house/meeting house and other uses similar to what it has been in the past. I request that you vote for approval.

Justin Shofstall: Whenever, it was one of the things as far as they did purchase the property prior to doing some good research to see what type of encumbrances there are. The property itself is in the flood plain. The existing finished floor elevation on the building itself is approximately five inches above the 100 year flood elevation established for that area. So, there are a few issues, and as far as getting in and out we’re trying to address that with the site plan.

Commissioner Melcher: I just want it on the record tonight that there is flooding there. So, I didn’t want them coming back on us or anybody.

Justin Shofstall: –within the National Flood Insurance Program, and FEMA mapping that it is in the flood plain.

Bill Jeffers: Good evening, Bill Jeffers, Vanderburgh County Surveyor. Quite a few questions were asked at Area Plan Commission when this came up. The gist of the questions was that there was activity going on out at the site without permits, and possibly without the knowledge of the developer of what permits are required. I won’t go into any great detail, but I don’t think anybody wants to stop the work. I don’t think anybody wants to prevent them from converting it to a party house. I think it’s an ideal place for a party house. I think the other commissioners on the Area Plan Commission thought somewhat along the same lines, but we wanted to reinforce to the developer that there are certain permits that must be obtained from local agencies that had not been obtained. There were certain permits that have to be obtained from State agencies of environmental protection and the State Department of Natural Resources when dealing in the floodway and plain. There would be a variance that needs to be obtained, because the finished floor elevation that exists out there is five inches, well, as Justin pointed out, is below flood protection grade. I think it may be their idea that they want any expansion of the building would be at the same elevation, and the flood plain management committee has never allowed a commercial establishment with a finished floor elevation lower than six inches above flood plain. So, there’s a lot of issues that I just want to make sure that the developer is aware of. I just wanted to go on record. I do want to tell you that I know that Justin has informed the developer of each and every one of these issues. I just want to reinforce it, because, I think that some of the cautions did not get fully through to the developer, and I want to give him every opportunity to know that when it comes back to site review, especially in front of Drainage Board, and I think I can speak for some of the other review agencies, all developers are treated the same in Vanderburgh County. The same rules apply, and the same rules will apply to this development.

President Tornatta: Bill, the one remonstrator, or the one no vote, and maybe this is a question for Janet, but I feel you were there, what concerns did they have? Or did that individual have?

Bill Jeffers: I think Janet should answer that. I don’t truly recall what the no vote involved.

Janet Greenwell: I believe our no vote came from Dewey Colter, a member who felt that the activities going on without permits didn’t need to be rewarded. There’s a saying in the Board of Zoning Appeals, asking forgiveness rather than permission, and I think that was the, yeah, he made it clear that he was not approving because they were doing stuff without permits.

President Tornatta: Okay, and, Janet, is there a way that we can address that particular issue?

Janet Greenwell: Yes and no. Yes, all permitting is required. They did a lot of, I haven’t been out there since, Mr. Colter said that they had done some concrete work, they had changed the lay of the land, they had done some addition, started an addition, without any permits. There are built-in repercussions in the ordinance for doing that. They will, it’s like what comes first, the cart or the horse? You know, they had to have the zoning in place to be eligible to go to site review to get the commercial permits. So, essentially, they were told to stop everything, don’t do anymore work until you get all of your ducks in a row. There are repercussions. The Building Commissioner can issue tickets against any of the contract workers, and Plan Commission, ours is a little more complicated, but mostly enforcement through Plan Commission goes through court.

President Tornatta: Do we need to hold off on this measure until we have compliance? What’s the recommendation of your office?

Janet Greenwell: I think that, again, the cart or the horse? They cannot proceed with commercial permits unless they are zoned commercial. If we look at strictly is this good land use, which I think is what our board was looking at, we want to deal with the, okay, approve the zoning and let the enforcement agencies take it from there. We, I’m sure Mr. Jeffers will see to it that we follow up with all required permits. They, our site review is not about to approve something that’s going to be contrary to a State law, or wetlands regulations.

Commissioner Winnecke: Mr. President, I’m the Commissioners appointment to the Area Plan Commission. Mr. Jeffers and Ms. Greenwell characterized everything, I believe, accurately. I think it would be my recommendation, based on hearing presentation from Justin that day, and again today, that we move forward with the rezoning and let the enforcement agencies handle their tasks.

Commissioner Melcher: I would agree with that, because, just like she said, what comes first or comes second? We’ve been fighting this for years. I always like them to go to BZA first, but, you know, I understand that. I just feel like that flood thing, because I just didn’t want, I know there’s problems. I just want it on the record what’s going on.

President Tornatta: One of the things we’ve talked about with Roger is the ability to be able to utilize the building once you get to that point.

President Tornatta: And, one of the things we are implementing is a procedure that if you don’t have those fines paid, or if you don’t have all the permits that need to be there, in line, that you can in turn not be given the right to run that building, although it’s built. So, you might caution your client that that could be the case.

Justin Shofstall: Just for on the record on that, and, again, as far as with the lengthy discussion that I had with Mr. Jeffers during the public meeting, where we did place that on record. Again, we were hired after they first started doing work in which was required to have, with their acreage they’re required to have an erosion control plan of any type of earth disturbing activity. We were hired after the fact, after the State came down. The State representatives did perform a, I would say chastising would be one way to put it, to the Vanderburgh County Engineering Department, and I believe, did they make any reference to the County Surveyor’s Department, Mr. Jeffers?

Justin Shofstall: Okay. But, it one of those things, as far as why are they allowing this to go forward, and if somebody’s moving forward without the proper permitting, Vanderburgh County itself does not have the manpower to watch every single thing–

Justin Shofstall: –every single day. This happened to catch two days after they started doing the work. In reference to the work that Dewey Colter on the Area Plan Commission was recommending voting no, I was on the job site the following day, because I received a phone call from the property owners and developers two hours prior to the Area Plan Commission saying, “Will this be a problem?”. I’m not sure. We’ll find out. As of Friday morning, on January 9^th, I did take several pictures of what was going on the site itself, the construction that was going on on the outside that Mr. Colter was referring to was actually for a free-standing, non-attached awning/canopy. As per what the, my client had informed me, was, well we talked to Roger Lehman, it’s free-standing, it’s not attached, it’s a canopy, doesn’t require the actual permit on that. Now, the concrete, that would have to go through site review, because it is tied with the drainage plan, and as per the exhibit that is on there, with one of the notes, proposed building addition and necessary hard surface parking. Will require a site grading and drainage plan, as should be heard before the Vanderburgh County Drainage Board in a public hearing. So, even with, they had these exhibits prior to the rezoning, in which they were going to take these exhibits, speak to Roger Lehman, the Vanderburgh County Building Commissioner, in terms of their possibility of getting the variance. I informed them, I said, with the possibility of them doing the actual building addition, it’s very, you know, slim to none on doing the building addition and going to the variance. From the last discussion I had with them, they’ve scratched that idea. Currently, what it’s slated is for this project, with the existing building and the proper hard surface parking and drainage facilities that serve this building alone, as is, is going to be heard at the site review this upcoming Monday, once it’s filed tomorrow morning, after this rezoning.

President Tornatta: Okay. So, it looks like we’re okay with moving forward, but we do need to convey that information.

Justin Shofstall: I reiterated again to my clients, Friday morning, on the 9^th, after the APC meeting, as far as with general perterbance from other Area Plan Commission staff, and comments made by other recommending bodies at Area Plan Commission, that, again, do work that you only have permitting for. I believe with the current permit that is on file with the Vanderburgh County Building Commissioner, and which I confirmed again with Mr. Mills in the Area Plan Commission, was that their current building permit is for interior work of windows and doors only on the existing building.

President Tornatta: Okay. Alright, summation? I think we’ve already been there. Looking for a motion to approve.