VANDERBURGH COUNTY

REZONING BOARD

JANUARY 27, 2003

(The meeting was reconvened at 7:00 p.m.)

President Mosby: We will now reconvene Board of Commissioners of Vanderburgh County hearing January 27, 2003, Rezoning agenda. Do I have a motion to approve the minutes of the previous meeting?

Commissioner Fanello: So moved.

President Mosby: Second. I just did that because you weren’t there. So ordered.

President Mosby: First reading, VC-7-2003, petitioner, Onyx Waste Services, Incorporated, 8136 Baumgart Road. Request a change from Ag to M2. Do I have a motion to accept it?

Commissioner Fanello: Motion to accept first reading.

Commissioner Crouch: Second.

President Mosby: So ordered.

President Mosby: We will now move to third, and final reading of all zoning ordinances. I need a motion to send VC-2-2003, Donaldson Capital Management, LLC, 7424 Darmstadt Road, R-1 to CO-2, I need a motion to send that back to Area Plan to be amended.

Commissioner Fanello: So moved.

Commissioner Crouch: Second.

President Mosby: I have a motion and a second to send back to Area Plan. So ordered.

President Mosby: Next, VC-3-2003, petitioner, Alan Gauger and Angela Gauger, 2012 Koring Road, change from Ag to C-4. Mr. Bohleber.

Steve Bohleber: Good evening, members of the Commission. My name is Steve Bohleber, and I represent Mr. and Mrs. Gauger, who are seated behind me here. They live at 2012 Koring Road. In addition to working professionally as a cabinet maker for others in the past, Mr. Gauger has done cabinetry work in his garage, as a hobby, for a long time. He now wishes to expand the range of that hobby into a business. Therefore, this zoning become necessary. Since this is a jump up from an agricultural zoning to a high commercial, my clients have done several things to make it acceptable. Rather than zoning, rezoning the entire portion of their property, they’ve simply carved out the garage, where the hobby has been in the past, and where the business will be in the future, if you approve this, and rezone that portion of the property, along with the drive and space for parking. As I say, the Gauger’s live on this property. Their home is next to this garage. As such, there will be no employees other than Mr. Gauger. There will not be a retail showroom. His work is custom ordered, and would generate little traffic. In fact, to the outside world nothing will really change at the Gauger residence, except where the work product goes from the garage. Rather than as a hobby for family and friends and himself, it will actually be a business. Even though nothing will change, and probably no one would ever know what they’re doing, they certainly want to be in compliance with all the laws, including the zoning laws, and that’s what brings them here this evening. The Gauger’s talked to all their contiguous neighbors. All of them fully support this request. To further ensure that this will be an innocuous business that can only be utilized, from a practical standpoint, and legal standpoint, by the Gauger’s, they do submit a use commitment that eliminates all the C-4 uses except the one that would include what he’s doing there, and that’s by definition something from use group 10 of the code for cabinet and carpentry shop. Since billboards theoretically could be erected there, although I can’t imagine anybody would want to put a billboard there, they have prohibited those. The large signage that could be available is also limited by this use and commitment, use and development commitment, signage no more than 15 square feet, not illuminated, and not higher than the commercial structure, that would be the garage. So, that would allow for a small sign on the side of the garage, if this approved. This matter comes to you with a 9-1-1 do pass recommendation. I ask that the Commission likewise approve this ordinance. Again, I’m here, as well as my clients to answer any questions you might have.

President Mosby: Questions by any member of the Council, or the Commission? Seeing none. Any remonstrators in the audience for 2012 Koring Road? Seeing none, chair would entertain a motion.

Commissioner Fanello: I would make a motion to grant the rezoning request from Ag to C-4.

Commissioner Crouch: Second.

Kevin Winternheimer: You need a roll call.

President Mosby: I was going to say, how about a motion to call the roll. I have a motion to call the roll on VC-3-2003. Commissioner Crouch?

Commissioner Crouch: Yes.

President Mosby: Commissioner Fanello?

Commissioner Fanello: Yes.

President Mosby: Commissioner Mosby, yes. Three yes’, no nays.

Steve Bohleber: Thank you very much.

President Mosby: I hereby declare it adopted.

President Mosby: Next we have VC-4-2003, Herbert Grimm, 975 Hillsdale Road, request to change from Ag to R-1.

Bill Nicholson: Good evening. My name is Bill Nicholson. I’m here with Mr. Grimm. We’ll be here to answer any questions you might have. Of course, we’re requesting this property zoned R-1. All the other properties around are zoned agricultural, at present. To the north of us, across Hillsdale Road is Blue Grass Farms Subdivision. Cypress Creek, and Plantation Estates are to the east. The rest of the property to the west and south of us is still agricultural farm land. We do not, at this time, have a site development plan. It will be subdivided as a subdivision, but as of this date we don’t have any development planned as yet. All of the utilities and everything are present at the site, and anything that would have to do with the subdivision would be addressed later by the Plan Commission. Of course, drainage will be addressed at that time too, as the development plans are presented. Be glad to answer any questions you might have.

President Mosby: Questions by any member of the Commission? Is that your pleasure then, to put a subdivision in? Is that what your intending to do?

Bill Nicholson: Yes.

President Mosby: Any remonstrators present for VC-4-2003, 975 Hillsdale? I have a remonstrator.

Steve Bohleber: Ladies and gentleman, once again, I’m Steve Bohleber, and I’m here representing Mr. and Mrs. Randall Craig, who own lot 12 in Plantation Estates, which joins this proposed rezoning. As Mr. Nicholson and his client have stated, they are going to put a subdivision here, but as of yet have no plan for developing that. It’s probably that lack of a plan that caused the Craig’s to retain me to interpose their objection. It’s clear to my clients, and it’s clear to me, and I’m sure the Commissioners, and even before the question was asked, that this is being done so a subdivision can be developed. My client has no problem with that either. The problem is that there is a large stand of mature trees adjacent to his lot, and several others contiguous to his, before you get to the open fields that compose this parcel of property. My client would like to preserve some of those trees as a buffer, if at all possible. I approached Mr. Nicholson on behalf of the Craigs about this before the Plan Commission meeting, and he spoke with his client, and represented that certainly they wanted to leave some trees present. I take them at their word, as does my client, but there’s only one way to ensure that will happen. There is no requirement, as far as I’m aware of, in the subdivision ordinance that would require a buffer of trees under these circumstances. There is certain setbacks, there are a variety of other things. The only thing that would preserve that buffer would be this rezoning submitted with a use and development commitment. If that were done to accommodate my client’s wishes, we wouldn’t be here this evening. But, Mr. Grimm and Mr. Nicholson choose not to do that, and I fully understand their rationale for doing it. That would have been to continue the matter, and create some additional expense for them. But, that’s the reason we’re here. This is the only opportunity that my client has to make that request, and get that guarantee in an enforceable fashion. Hopefully, even if this is approved that promises will be made to this body that such a buffer will be left behind, because I think it’s logical, and I’ll certainly continue to talk on behalf of the Craig’s with Mr. Grimm or whoever develops that subdivision. But, in the absence of a use commitment that provides for such a buffer, in a legally enforceable and guaranteed fashion, we respectfully object to the rezoning, and ask the Commission not to accept it. Thank you.

President Mosby: Thank you. Is there any other remonstrators present? Mr. Nicholson, would you like to say anything?

Bill Nicholson: Just a second, Mr. Grimm will speak to that.

Herbert Grimm: We have no plans of stripping the trees out there. The trees are an asset to us, the same as they are to the neighbors. So, we will take no more trees than necessary. A lot of the trees that they are speaking of are second growth trees. I bought that place in 1978, I think it was, and at that point in time it was a pasture. So, what trees are there now, except for a few pear trees that were there when I bought the place, are all second growth stuff. Now, there’s some trees on the line between this, which we will have no reason to even disturb. So, as far as taking any trees out, there would be no reason. Of course, trees are an asset to us also. A treed lot always sells better than a bare lot.

President Mosby: Questions?

Commissioner Fanello: Just looking over the Area Plan minutes, they talked about the buffer that Mr. Bohleber just referenced, and the use and development commitment. Is there a reason that you do not want to enter into a use and development commitment?

Herbert Grimm: Yes, because I don’t want to guarantee that I can keep a tree that I can’t keep. Other than that, no. So, we have no reason. It’s farm land now, I mean, we could have cleared the trees a long time ago, if we wanted the trees out. So, we have no reason to take them out, other than for a road, which won’t be next to them anyway. There will be a lot between them and the road.

Commissioner Fanello: Since you mentioned the road, there was also the issue of access brought up. So, how do you intend to address the access part?

Herbert Grimm: You’ll have to ask my engineer on that. It’s being worked on.

Commissioner Fanello: Okay, I mean, do you see some problems with that? I know they talked about it in the Area Plan meeting. I think Mr. Jeffers, he says in here that he;

“Encourages the developer to create as much in setback along the north line. I would also encourage him to seek access from both the north and south for public safety reasons.”

Herbert Grimm: We intend to work with the proper authorities on that. We don’t have a problem with that.

President Mosby: Commissioner?

Commissioner Crouch: What, how would you, you know I’m kind of new at this. So, help me. How would you do a use and development commitment, and designate certain trees? I can certainly understand this gentleman’s concern, because if they’re secondary trees, they really aren’t adding any worth to the project. He wouldn’t want to be committed to keep those, so how would you–

Steve Bohleber: As a visual buffer. I mean, obviously, we wouldn’t have each individual tree designated, but we would (Inaudible) strip of property. (Inaudible).

Madelyn Grayson: Mr. Bohleber, can you go the microphone please?

Steve Bohleber: Sure. You know, this is just my thought, the use and development commitment would say they shall not remove trees, you know, 15', 20', whatever, along that property line. That’s all my client would really want. That could be done in a use and development commitment. If they die, they die, I mean, it’s, you know, but they would just not remove them. Maintain that natural buffer.

Commissioner Crouch: And that’s not something you’re willing to consider? A certain amount of feet? If you intend to keep them there anyway.

Herbert Grimm: Yes, in a way. I just, I hate to guarantee, or say I’m going to do something, if something, if SIGECO comes through, they are supposed to be in the front, so there shouldn’t be a problem there. The telephone is supposed to be in the front. The water will be in the front, and the sewer is already in the front. So, I don’t foresee anybody going through there to where we’ll have to take these trees out. Obviously, you’ve got to take enough trees down to build a house. If somebody buys the lot, and it’s full of scrubbed trees, they’re not going to want to keep all those. Now, there’s very mature trees on the fence line, and I don’t think we can cut down if we wanted to. We don’t have any plans of taking a good tree down.

Commissioner Crouch: So, I guess I don’t understand why you wouldn’t want to put that in a use and development commitment.

Herbert Grimm: Probably for the same reason he wouldn’t want me to ask him to commit part of his ground for my benefit. I don’t have a problem leaving the trees. It’s just I would have to know what he wants as far as use and development.

President Mosby: Are there any other questions?

Herbert Grimm: But, to answer your question, I probably wouldn’t have a problem with it. If I knew what it was.

Commissioner Crouch: So, can you all decide what it is?

Steve Bohleber: Well, the idea had been rejected in each overture that we’ve made. So, we haven’t gotten to the point of any detailed discussion. The concept is simple. A buffer, there are a whole bunch of trees there now. Just leave “x” number of feet, which is something we could talk about and negotiate, if they are interested, and put that in a commitment. You know, they shall not cut trees along this property line. I’m sure Bill could come up with a legal description, or it could be just 15' or 20', whatever we can negotiate and agree upon, off this property line would not be developed. The trees wouldn’t be cut. Houses wouldn’t be built there.

President Mosby: So, you’re looking for us to, I guess, as part of the record–

Steve Bohleber: Well, you know, again, there’s no ability to do this at the Plan Commission level–

President Mosby: Exactly.

Steve Bohleber: –as part of the subdivision ordinance. If the rezoning weren’t here, he’s right, he could cut the trees down without anybody’s permission.

President Mosby: Exactly.

Steve Bohleber: But, you know, this is a guarantee. This is the only way my client can guarantee that legally. Had this rezoning not been filed, we wouldn’t be here. He could have cut the trees down, and this wouldn’t have been an issue, but this does give us the opportunity to preserve something my client wants with a use commitment. You know, I take them at their word. I’m happy to talk to them about easements, and other ways to do this, and other accommodations, you know, as this project goes along, but a simple way to do it now, and the only way to do it now, would be a use commitment. That’s what my client is asking for. I understand that they don’t want to do it. I appreciate their thinking in that regard, but my client, nonetheless, wanted to make that request in the hopes that we could form a commitment that would preserve a buffer of trees between my clients lot and this subdivision. They are already there, it’s just a matter of not cutting them down, and developing along whatever size strip we agree upon.

President Mosby: I know it don’t hold up in court, but, I mean, I guess, we could ask him to state for the record his commitment to a 15' buffer between your clients property and this subdivision. I mean, I know it don’t hold up in court, but–

Steve Bohleber: Well, statutorily any promise made to induce a rezoning could be the subject of litigation (Inaudible).

President Mosby: Well, exactly, and that’s why I’m asking him to state it for the record. So, otherwise, to do a use and development he has to go back to Area Plan, and come back, and that’s a 60 day deal.

Steve Bohleber: Absolutely, and I understand why he wouldn’t want to do that.

President Mosby: I do too.

Steve Bohleber: I wouldn’t want to do that either if I wanted to get this project moving.

Herbert Grimm: I have no problem with that. The problem I have, we’re not going to save the 1" trees. If it’s a tree of any size, of any value at all, we intend to save it.

President Mosby: I guess, and the way I understand Mr. Bohleber is he is just looking for you to say that you will leave a 10' or 15' strip, as a buffer, between the subdivision and the residential. Which I understand what he’s saying, I mean, that happens a lot of times in zonings. We ask for buffers. Sometimes we ask you to plant a buffer.

Herbert Grimm: Right.

President Mosby: You’re lucky you have one.

Herbert Grimm: Thank you. I would have no problem with a 10' buffer, as long as the people that live there are able to maintain. I don’t want it to be something that’s going to grow up wild and into something you can’t walk in, or at least be able to mow. Do you have a problem with that?

Steve Bohleber: It would be something we could discuss.

Madelyn Grayson: Mr. Bohleber, you’re going to have to make them on the–

Steve Bohleber: It would be something that we could certainly discuss and put in a use commitment, but, again, we haven’t seen any interest in discussing it. They flatly said they don’t want to do it. We could come up with all sorts of particulars, and put it in a use commitment that would address all of those issues.

Kevin Winternheimer: I was going to just throw out, if I might interject, to keep the ball rolling, so to speak, and not have to go back to Plan Commission and come back, which might take a number of months, if you put it off until a date certain, give them time to work out a private covenant, or whatever you want to call it, that would be recorded, run with the land, and so forth, to be enforced by your client, or the Plan Commission, that sort of thing they could work up–

Beverly Behme: We don’t enforce them.

Kevin Winternheimer: –okay, they say they don’t...well, anyway–

Steve Bohleber: No, it would be privately enforced–

Kevin Winternheimer: Okay.

Steve Bohleber: –and that’s, that’s certainly acceptable as well. It could be an easement preserving the trees. It could be a variety of things if, you know, if the dialogue would take place, we could work something out.

Kevin Winternheimer: As long as you said when you are bringing it back for approval for a date and time certain, then you could go ahead and approve it without sending it back to the Plan Commission. It would be a private agreement. It wouldn’t be part of this rezoning, so to speak. That’s another option I just wanted to make you aware of.

Commissioner Crouch: Would we have to wait until the next Rezoning meeting? Or could it be at a regular meeting?

President Mosby: Any meeting.

Kevin Winternheimer: It could be at any meeting, as long as you announce tonight when it is coming back for consideration, for them to report back, you could do it at any meeting. Is that acceptable to the two people? The Commissioners are thinking along that line to the two parties.

Steve Bohleber: It’s acceptable to my client to see if we can work something out. If we can’t, we can’t, but, you know, we’ve got to be able to talk and be on the same page before we know if we can work something out. I don’t think it’s going to be that difficult, quite frankly.

President Mosby: I mean, if we’re going to pass this zoning.

Kevin Winternheimer: No, what you’d be doing is continue the zoning until a date certain.

President Mosby: Oh, continue.

Kevin Winternheimer: Give them an opportunity to work out a private agreement, then if they do work out a private agreement, then you should take a vote on it. If they don’t, then you take a vote on it based on their inability to reach an agreement. So, we’re just putting off the final decision date, and giving them an opportunity to work it out. I think if they try to work it out here on the floor tonight it’s going to take quite a bit of time tonight to do that, and we’re pretty late already.

President Mosby: I mean–

Kevin Winternheimer: (Inaudible. Mike not on.) sit down together and work it out, because there’s some details, like you said, do you want to keep the saplings, do you want determine tree size, how big. Mr. Bohleber probably needs to talk to his client again, you know, they can work that outside the meeting room.

President Mosby: I mean, I don’t know. I’m satisfied with, they, I don’t know, whatever the Commission, whatever you want.

Steve Bohleber: Two weeks would be fine from my perspective.

Commissioner Fanello: I was just going to make a motion to continue it for two weeks to give you time to talk with him, and try to work something out.

Commissioner Crouch: Second.

Commissioner Fanello: So, that would be February 10^th.

Commissioner Crouch: February 10^th?

President Mosby: Yep. So, I have a motion to–

Herbert Grimm: Excuse me just a minute. Bill, did they ever contact you and ask you to put a buffer in there?

Bill Nicholson: Well, he called me, and I called you.

Herbert Grimm: Yeah.

Bill Nicholson: And you didn’t want to. I mean, that’s what you told him.

Herbert Grimm: I said I wouldn’t agree to whatever (Inaudible). Okay, I’m sorry.

President Mosby: I have a motion on the floor to continue VC-4-2003, 975 Hillsdale Road to, continuance until February 10^th.

Kevin Winternheimer: At 5:30.

President Mosby: At 5:30. I guess, we need to vote on that. Commissioner Crouch?

Commissioner Crouch: Yes.

President Mosby: Commissioner Fanello?

Commissioner Fanello: Yes.

President Mosby: Commissioner Mosby, no. Being two ayes and one nay, it’s continued.

Steve Bohleber: I’ll make arrangements immediately. Talk to my client tomorrow to get with them, and we’ll work something out.

Herbert Grimm: Thank you.

President Mosby: VC-6-2003, Sterling Development, 6649 Old Boonville Highway, request change from agricultural to R-3.

Kent Heckaman: Good evening members of the Commission. I’m Kent Heckaman. I’m Vice President of development for Sterling Development. I’m here to answer any questions that you may have with respect to the petition before you for the rezoning of this property. We are, just a real brief statement about Sterling, we are a developer of multi-family housing throughout the Mid-West; Indiana, Michigan, and Illinois. We have developed over 6,000 apartment units in 50 communities. 51 communities now, I guess. We did, Ms. Fanello was gracious enough to give us a few minutes of her time in December to introduce our company to her area. Our petition tonight, again, is subject to our proposal, which we have laid out a preliminary site plan that shows this property of a little over 17 acres, and our intention is to develop and own and manage the proposed 176 apartment units that would fit within the guise of the R-3 zoning, without any special use permits or anything. Again, I’m here to simply answer questions. I know that you have a packet before you. So, I won’t divulge anymore, and I’ll pause at this time.

Madelyn Grayson: Can you spell your last name for the record?

Kent Heckaman: Yes, I’ll give you a card, if that helps you.

President Mosby: I’m looking for my notes here, but, I believe, did you not have, was there somebody that expressed a problem with entrance on this? Can you address that?

Kent Heckaman: Yeah, sure. This property is, does have legal access to it currently off of Old Boonville Highway. Albeit through a 15' wide access easement, which is certainly not large enough to provide access to and from our property into a development of this size. So, what Sterling, and what we have been able to do prior to the rezoning petition even reaching the Planning Commission, was to gain an agreement in writing with the adjacent property owners, who own the property that more adequately, if you will, comes out with frontage along Old Boonville Highway. While that agreement is a letter of intent, it clearly does spell out the intent to provide, upon final engineering, in other words, exactly how wide this needs to be. We have yet to be determined this easement area, but roughly 100 plus feet of property to the south of the adjacent property that fronts Old Boonville Highway, which would adequately do two things; not only provide frontage and access, greater access, to our community, it’s a 17 acre community, but also the adjacent property too, we would, we would be under agreement with them to, at our cost, design and build that road, and provide them an access stub out to their property, so that it would also adequately serve the balance of their land.

President Mosby: Okay. Any other questions? Any remonstrators present? I thought you was wanting to say something, Bill.

Beverly Behme: David, if I may, site review will work on this.

President Mosby: I knew it would go to site review, but I just, that was a question that I had.

Beverly Behme: His frontage requirement is satisfied on the interstate, but, of course, there’s no access there. The site review, and EUTS, and the County Engineer will be involved in this access road.

President Mosby: Okay. There being no further questions and no remonstrators, do I have a motion?

Commissioner Fanello: Motion to approve VC-6-2003.

Commissioner Crouch: Second.

President Mosby: Motion and a second. Commissioner Crouch?

Commissioner Crouch: Yes.

President Mosby: Commissioner Fanello?

Commissioner Fanello: Yes.

President Mosby: Commissioner Mosby, yes. Being three ayes, no nays, petition VC-6-2003 is hereby declared adopted. Any other business to come before the Commission on rezoning? There being none, chair would entertain a motion.

Commissioner Fanello: Motion to adjourn.

Commissioner Crouch: Second.

President Mosby: I have a motion and a second. So ordered.

(The meeting was adjourned at 7:30 p.m.)

         Those in Attendance:

         David W. Mosby             Catherine Fanello           Suzanne Crouch

         Kevin Winternheimer      Bill Fluty                          Tammy McKinney

         Madelyn Grayson           Phil Lawrence                 Rebecca Gootee

         Dennis Feldhaus            Melvin Beeker                 Roger Madden

         James Tolen                   John Stoll                        Dennis Hudnall

         Gary Hohman                 Steve Bohleber               Bill Nicholoson

         Herbert Grimm                Kent Heckaman              Beverly Behme

         Others Unidentified         Members of Media

         VANDERBURGH COUNTY

         BOARD OF COMMISSIONERS

         David W. Mosby, President

         Catherine Fanello, Vice President

         Suzanne Crouch, Member