VANDERBURGH COUNTY

BOARD OF COMMISSIONERS

JANUARY 29, 2008

The Vanderburgh County Board of Commissioners met in session this 29^th day of January, 2008 at 5:02 p.m. in room 301 of the Civic Center Complex with President Jeff Korb presiding.

President Korb: Old business, rezoning of VC-15-2007, 12700 Old State Road. Welcome back.

Chris Wischer: Thank you. Excuse me.

President Korb: State your name for the record, please.

Chris Wischer: Chris Wischer, Bamberger, Foreman, Oswald and Hahn. Here tonight on behalf of Habermel Investments LLC. John Habermel’s in the audience with me. As we go, he can answer any questions that I can’t, I’m sure. To be, kind of briefly recap where we were two weeks ago. We were here on a petition to rezone the property in the white outline at 12700 Old State Road, the corner of Boonville-New Harmony and Old State Road. Yeah, that’s a good map. The, as you can see from the map it’s completely surrounded to the north and to the west with C-4 property, which, the final leg of that was done in November. When we were here two weeks ago, the issue came up as to access to this real estate. Oh, thank you. I think the issue, as I understood it, was whether or not the access to this property could then be utilized in some future case as a direct access to the greater Schnuck’s development, which is what we understand the remainder of the property to be zoned for. I think that, in some instances came about from my statements about the potential use of this property, which I need to say for the record, was clearly hypothetical on my part. There’s, at this time, no interest been expressed on either side about that happening, about any combination of this property with the Schnuck’s property. I’m not even sure Schnuck’s owns it at this point. It’s my client’s intention to utilize this property as a single lot. In that event, what we’ve done is we’ve come up with a private covenant that we believe addresses the concerns. I know my client has spoken with each Commissioner individually to gauge their concerns, and I’ll submit this. What you have before you is a private covenant that my client would agree to execute, in the event that this rezoning ordinance is approved. Paragrah one is the access paragraph. As you can see from the map, right now there’s actually two curb cuts on the property. It’s the recommendation of the County Engineer and others that there be one access, and that it be, my understanding is, as far north, probably in this area.

President Korb: Right.

Chris Wischer: We’ve committed in this paragraph to that there would only be one access along that property line, to make it clear that that’s our intention, or my client’s intention. Further, that the access to this property would be exclusively for the purposes of access to this property. I’ve had several conversations with John Stoll, we believe that once folks are on this property, it makes sense not to have them dump back onto the road, and have the possibility, if it ever works out, if, you know, moving from here to there. This wouldn’t necessarily preclude that, but what it would preclude is this access being used as a direct access for the rest of the property. If it can be used for this property and the uses by the occupants of this property. That’s the intention. Just clear for the record. Additionally, the covenant would be enforceable by the County Commissioners, and the covenant could be modified by agreement of the property owner, and a majority of the County Commissioners. So, if, once the property is developed, if there becomes some other intention for the property, this thing isn’t necessarily set in stone. We could conceivably come back and ask again that it be expanded or changed. But, at this point, I think we’ve attempted to be clear, as to what this access would be for.

Commissioner Nix: I guess, I’m the one that raised the flag last week, or two weeks ago. I guess, the concern, when the other parcel was rezoned was that there not be more than one access on Old State. What I didn’t want to see happen was that the development take over this parcel, and then there would be another entrance into the larger development there.

Chris Wischer: Right.

Commissioner Nix: So, that was the concern I had. But, if, in fact, there’s a common roadway, or a drive between the two, I don’t necessarily have a problem with that.

Chris Wischer: Okay.

Commissioner Nix: I just did not want to see two accesses off of Old State. That was one of the concerns that the, in the rezoning that we heard before.

Chris Wischer: Right. I think that there’s no intention for this access to become some second access. I know there were statements made about their being one access by the Schnuck’s folks in their rezoning. This is certainly in no way intended to circumvent that commitment.

President Korb: I guess, my question is, in the event, I know that you’ve said, right now, there’s not a deal in the offing between you all and Schnuck’s.

Chris Wischer: Right.

President Korb: If that develops, is that language in here that does not become a double access for them?

Chris Wischer: Well, I think what they would, it’s exclusive for this real estate. What, the way I intended that to be, was, I mean, it’s possible that Schnuck’s could acquire the real estate. And, again, possible in the sense of, you know, within the realm of possibility, but, again, there’s no intention there, at this point. And, if so, it would have to be, they could not convert it to a main entrance, or a primary entrance, or even a secondary entrance for the development. It would have to be used for access to that lot. So, if they decided....one reason that we opted not to commit to eliminating it if they own it is, what if they own it with the intent of creating and using it as a separate out lot, as we have it. We don’t want to foreclose that possibility. It could be acquired and then sold as an outlot. As long as it continues as an outlot the access would be there for that property. So, my reading of it is, it would prohibit them using it as a direct ingress/egress from this road to their property.

President Korb: Okay. Mr. Nix, does that satisfy you?

Commissioner Nix: Yes.

President Korb: Okay, great. Any other questions?

Chris Wischer: I think that’s in line with their commitment. So, that shouldn’t have been an issue with them anyway.

President Korb: Mr. Ziemer, does this look okay for you?

Ted C. Ziemer, Jr.: Yes.

President Korb: Okay, great. Do we need this in the form of a motion? Any other public comment about this? Seeing none.

Commissioner Nix: Move approval.

President Korb: Second. All those in favor say aye.

Commissioner Nix: Aye.

President Korb: Aye. Opposed same sign. It passes. Congratulations.

Chris Wischer: Thank you. We’ll execute and record this.

President Korb: Ah, roll call vote. Okay. Mr. Nix?

Commissioner Nix: Yes.

President Korb: Mr. Korb? Yes. The motion passes.

Chris Wischer: Thank you.

President Korb: You’re welcome.

Madelyn Grayson: I will need a copy of the private covenant.

President Korb: There you go.

Those in Attendance:

Jeff Korb                                   Bill Nix                                      Bill Fluty

Ted C. Ziemer, Jr.          Marissa Nichoalds                    Madelyn Grayson

Dave Rector                             Marsha Abell                            Cheryl Kuchna

Roger Lehman                          Bill Pedtke                                Z. Tuley

John Stoll                                  Chris Wischer                           Willard Shrode

Mike Sitzman                            John Shrode                             Larry Cavins

Others Unidentified                   Members of Media

VANDERBURGH COUNTY

BOARD OF COMMISSIONERS

Jeff Korb, President

Bill Nix, Vice President

(Reported and transcribed by Madelyn Grayson.)