VANDERBURGH COUNTY

REZONING BOARD

JULY 19, 2004

The Vanderburgh County Rezoning Board met in session this 19^th day of July, 2004 at 6:23 p.m. in Room 307 of the Civic Center Complex with President Catherine Fanello presiding. The rezoning petitions were heard during the course of the regularly scheduled Commission meeting.

President Fanello: Now we’ll move on to the rezoning portion of our meeting. As soon as I can find my agenda, Mr. Bodkin.

President Fanello: Do I have a motion to approve the minutes of the previous meeting?

Commissioner Mosby: So moved.

Commissioner Crouch: Second.

President Fanello: So ordered.

President Fanello: We have no first readings, and only one final reading.

President Fanello: VC-4-2004, and Mr. Bodkin is at the podium.

Tom Bodkin: I am. Good evening, ladies and gentleman. We are here on a piece of ground along Burkhardt Road. In fact, this is about the last part of Burkhardt Road frontage that’s not been developed. My client, the Hirsch family, owns a large, large tract, as you know, in fact, their land goes from Burkhardt Road to the interstate. The parcel at issue here is a 47 acre tract all along the frontage of Burkhardt Road that’s 700 feet deep and over 2000 feet long. We are requesting zoning it to C-4. The Plan Commission vote was six in favor, four against, and two abstentions. We have met extensively with the County Engineer with regard to the road issues on this parcel. We have given a use and development commitment, it’s really a development commitment, I suppose, where we are agreeing to dedicate the necessary right-of-way for the extension of Vogel. That’s one that is very critical to your long term plan, one that John was very, very interested that we do. The dedication will occur the entire width of the 700 foot strip of ground, so that Vogel begins it’s process moving east. We also are dedicating the necessary right-of-way to widen Columbia, which you may recall is at the south end of this parcel, right by the Krispy Kreme donut shop, we’ll be widening it. In fact, we’ve met with John extensively on that. Let me digress just a moment, the commitment is to dedicate the land, and that’s exactly what we’re going to do. As of today, or yesterday, I guess, we do have a signed purchase agreement on a two and one half acre parcel at that corner. I am not at liberty to tell you who it is, other than it’s a local company that’s been here a long time. That, obviously, will now necessitate us building Columbia. We’ve met with John several times about what that needs to be. It looks like it will probably be five lanes wide, at that point, with appropriate turn lanes. I can tell you also that we have, attempted, perhaps is the best word, since last October, on numerous occasions, to deal with Wal-Mart with regard to their letter of credit and whatever it is they are or are not going to do on that side of Columbia. We have dealt with three different people at Wal-Mart in the last nine months. We continue, they have a new young man as of a week or so ago, we’ve resent the same data to him, we’re going to continue dealing with Wal-Mart, but Columbia will have to now be built, because we’re going to have a sale. I can tell you also that our buyer, who is going to in addition to us, my client, will build Columbia. Our buyer is then going to start the road that runs north/south. It would be the equivalent to a frontage road along Burkhardt. Both these roads to county standards, both roads at whatever the County Engineer determines they need to be. That will happen now fairly quickly. We’ve also agreed with the County Engineer that we will not access Burkhardt Road, in terms of crossing Burkhardt, other than at Columbia, at Vogel, when it comes time to do that, Oak Grove is at the north end of my parcel. We also agreed that we will only access Burkhardt across from Florida, and across from Waterford, but those streets will not cross, they will not be cross streets. So, we’ll access in and out potentially in those locations down the road, but we will not cross. So, we’re limiting the access on Burkhardt as the County Engineer and EUTS had requested. The land immediately to the north of this strip is zoned M-2. Now, that’s the land north of Burkhardt Road, I think all the way to Morgan and back to the interstate, or almost all that way. Directly across from this parcel, if you were to extend Oak Grove Road, I said Burkhardt, I meant Oak Grove, extend Oak Grove Road, the land immediately across, for some distance south, is zoned C-4. We’re asking for C-4 for this parcel. There’s a strip of ground that’s zoned C-2, and we have another strip of ground zoned C-4 right up to Vogel Road, basically, then we have more C-2,and then at the far end down by Columbia, right across from the two and half acre that we have a buyer for now, that is zoned C-4 as well. We believe, there is no question that the Master Plan calls for this entire area to go commercial. My clients own the biggest part of it, maybe not quite all of it, but a big chunk of it all the way to the interstate. At the Plan Commission meeting there was one other presentation, and I’m sure he’s going to present again, but I’m going to leap on it ahead of time. I’m not sure you’d call it a remonstrance, it’s kind of interesting, because you have no residential uses out here, so, we have other commercial people who want other things. One of the requests that have been made to my client that is not acceptable is that we agree to extend Columbia so that it curves down, and we pay part of the cost. That it curves down in to real estate owned by Regency. My client owns land all the way to the interstate. Columbia is going to be an extremely important road for us to access the southern part of our land as we get closer to the interstate. I can also tell you that right behind Wal-Mart, the property where there’s an apartment complex built now, there is no dedication, at least as of last Friday, of any land to allow Columbia to be extended across that real estate. Columbia cannot go straight and hit the interstate from our land, because there’s an apartment complex on the east end, right along the interstate, that comes up along the ditch. So, we’re going to be required as we continue to develop going east to curve our road back to the north so as to provide access to our real estate. Again, Vogel, under your long term plan will go due east. I understand from EUTS they would like an overpass either there or at Columbia, probably both, none of us will be alive probably when it gets to the point of building it, but we are committing the real estate for Vogel. We also indicated to the County Engineer that as we come to the plat, which we will now do, because we have a potential buyer. Whatever studies he wants done, or whatever he wants done with regard to Columbia, for lights and such, will have to be done. That’s simply a matter of the plat. So, our use and development commitment is to give you the land, and then we’re committing to extending Vogel all the way across the parcel being sought, and restricting access to Burkhardt. If you have questions, I’ll try to answer them. We have received, and perhaps you did too, one other letter from an interested party, again, I’m not sure if I would use the word remonstrance or not, that was a party that did not appear at the Plan Commission who had a number of requests that my client consider with regard to making, I hate to use the word commitment, because it’s not really that, it was sort of like agree to build what I want you to build so it will look like what I want it to look like. We are not interested in dealing in that kind of a mode. This is C-4 ground, or we want it to be C-4 ground. The ground across the road is C-4. The ground immediately south is C-4. There are no use commitments on any of the real estate out here. So, the C-2 ground is C-2, the C-4 ground that’s already zoned is C-4, there are no limitations on it’s use. My client does not choose to put limits on that use, at this point anyway. If you have questions, I would be glad to try to answer them.

President Fanello: Do either of the Commissioners have any questions? I only have one, will you be, and I sent, talked to Mr. Wischer and left him a message, will you be committing to a traffic impact study?

Tom Bodkin: Yes, but not in the use and development commitment. If I do that, I’ve got to go back to the Plan Commission, and I don’t have time for that, I have a buyer. Our contract with our buyer requires us to build Columbia. Our discussions with John Stoll, as we’ve indicated here, we’ll do whatever study he wants done at whichever road we’re building at. Whatever needs to be done, that’s what we’ll have to do. That will happen at the plat, because it has to happen at the plat.

President Fanello: So, you have no problem doing the traffic impact study–

Tom Bodkin: No, ma’am.

President Fanello: –during the site review, or–

Tom Bodkin: That’s correct. And that will happen at sub review probably.

President Fanello: At sub review, okay.

Tom Bodkin: Yeah, sub review.

President Fanello: Sub review, sorry.

Tom Bodkin: Correct, we do not have a problem. Whatever that requires, that’s what we’ll need to do.

President Fanello: Okay.

Tom Bodkin: This is kind of the opening, if you will, the opening shot (Inaudible) one of my clients with their very, very big piece of real estate. This is the front door to the rest of their real estate. There is no way they are going to develop it poorly, nor would you want to pay the money that it’s going to cost to buy the land to develop it poorly. So, we’re obviously not in the market of doing anything foolish to this real estate.

President Fanello: We just, we get those questions, and we just want to make sure and get them on the record.

Tom Bodkin: I understand. I can tell you at least my understanding. What we have committed to is what your engineer requested. That’s why we put it in the commitments as we did.

President Fanello: Are there any remonstrators, or other interested individuals who would like to speak?

Les Shively: Madam President, members of the County Commission, my name is Les Shively, I represent Regency. First of all, before I get into specifics, I know, I’m sure Mr. Bodkin didn’t do it intentionally, but he did misrepresent what my clients concerns are. You have access to the minutes from the Plan Commission meeting, and I want to make it very clear before I begin my presentation, so that there is no confusion in your minds, and, hopefully, no confusion in Mr. Bodkin’s mind, that my client does not ask, does not ask that the Hirsch’s or their successors in interest build anything on my clients property. That was never requested, never stated, and I’m not sure where Mr. Bodkin obtained that information. Let me first begin by making this statement, and I opened with this at the Plan Commission meeting. It’s a foregone conclusion that the Comprehensive Plan calls for this area to go commercial. We’re not here to debate the change in classification. But under your zoning ordinance, in particular 17.36...rather than read out the numbers I’ve made a copy for you.

President Fanello: Thank you.

Les Shively: It talks in terms of Commission action and commitments in conjunction with rezonings. As we get into this, I’m not going to read through all of them, but sub-paragraph (b) of 36.050 states the following: “The Area Plan Commission and the legislative body”, which is this body, “shall pay reasonable regard to the following.” I would call your attention to five, “reasonable development and growth”. Now, this rezoning, by the petitioners spokespersons own admissions, takes a little under 50 acres which fronts Burkhardt Road, and it begins the process of changing to commercial classification all of that property that starts at Burkhardt Road, which the Hirsch’s have control, that runs all the way to I-164. This is the moment in time, as you sort of light that fuse, that you should pay particular attention to your ordinance and say, hey, at the time we are going to change that classification, is everything in place to ensure reasonable and appropriate development? I would also submit to you that I think it’s going to happen in my lifetime that once this property is rezoned it’s not going to be too long before the rest of it takes off and we have fill out development all the way to I-164. I think we’ve all lived through the rapid development that has taken place in the Burkhardt Road corridor area, and I don’t see any signs that things are going to slow down. The comments with regard to the use and development commitment, again, the petitioner indicates that they have done everything that John Stoll has asked them to do. Have all of you received Mr. Stoll’s memo that he prepared following the Plan Commission meeting? Mr. Stoll told me that the reason that he prepared this was because of some, shall we say less than clear statements made with regards to what the County Engineer’s position was or was not. So, this very detailed, single spaced memo was given to you. I’m not going to read it to you, you’ve already read it, but let me hit the highlights. First of all, the first thing that Mr. Stoll says that, in his opinion, any plan that is presented that does not provide for an extension of Vogel in this manner is unacceptable. Vogel and Columbia are key concerns for him. Reading through his memo, it’s not just dedicating right-of-way, which is all this use and development commitment does, it’s talking about having a plan in place that sees that those roads and that appropriate traffic infrastructure is constructed. Towards the bottom of the first page of his memo he lists infrastructure improvements that he believes will be, that most likely will be necessitated by this rezoning. There’s eight of them listed there. Other than dedication of a little bit of right-of-way that abuts this parcel, there is no commitment to construct anything. There’s not even a commitment to do a traffic impact study. There’s discussion about frontage roads, there’s no commitment to build frontage roads. If you read the use and development commitment they’ve made very carefully, it’s sort of a touchy, feely, well, you know, if it looks good, we may do it, we may not do it. There’s not a commitment to do that. In short, Mr. Stoll concludes by saying that he is agreeable to this use and development commitment, with a few exceptions, but states that there must be assurances that the infrastructure improvements are able to be required through the subdivision review or site review process. Well, let me pick up on the last line of Mr. Stoll’s memo, first of all, there is no guarantee and no requirement that this tract be subdivided, and go through the subdivision review process. In fact, what the petitioner has represented was quite candid at the Plan Commission meeting, he said they may subdivide, they may not. So, we have the site review process. Site review is constrained to look at that particular site. Their focus is extremely narrow. The only macro approach, in terms of impact that can be done to make sure that once this is set in motion, that everything is done properly, the infrastructure, it’s not this right-of-way dedicated but actually built. We’ve seen what the problem is further up on Columbia Street, we’ve got halfway commitments. Is either through the subdivision approval process, and, again, there’s no requirement that that be subdivided, or, right now, to use the power that you have, under 17.36.050. I’m going to come back in a moment and suggest to you what I think this Commission ought to do in the interest of good planning for the entire community. In so doing, let me go back, if I can, in recent history, take you down memory lane where development in this particular area, development that I was very much involved with. Crossroads is right up here at the corner, before the County Commissioners, Commissioner Borries, Commissioner Tuley and (Inaudible) approved that rezoning, they not only wanted a commitment of the roads within our tract, but a commitment that we build this portion of Virginia Street on Regency’s property (Inaudible), and this portion of Cross Pointe. We had to make that commitment in order to get our rezoning approved. We did that. My clients who’s family had owned this land for a long period of time just like the Hirsch’s made that commitment. In fact, had to borrow close to a million dollars to build out those roads. Not just dedicate, but to build the roads within their subdivision, dedicate right-of-ways through the subdivision, and then build out over on the Regency property where right-of-way had already been dedicated. Regency built the rest. That was appropriate sharing of the burden, certainly didn’t put it on the county, but it was something that we, my clients, the Hartman family land trust, was required to do. In a moment you are going to hear from the Decem Group, which is working with several families that owned property on the east side, west side of Burkhardt Road for a significant period of time, and they have been required to make similar commitments. I’ll let them speak for themselves. But, what we are asking here this evening, especially with regard to roads, especially with regard to Columbia, and, again, if you look at Mr. Stoll’s comments about Columbia, contrary to what Mr. Bodkin said at Plan Commission and what he said here again this evening, Columbia is going to be necessary for the Hirsch property as it develops to the east. Columbia will never cross I-164. The most important reason for the, there is no right-of-way on the other side of I-164 to pick it up. Moreover, I doubt that that is a major, high priority project for Vanderburgh County or the Indiana Department of Transportation given their laundry list of much more important projects. John Stoll makes that clear. What Regency is committed to do, as this marketing map shows, is when Columbia gets to the point, they are going to carry Columbia the most logical place it can go, on their property, we will dedicate the right-of-way, and they are going to build Columbia. They’re also going to build this little area up here, about 380' that fronts the property owned by the Hirsch’s. Granted property that’s not subject to this rezoning, but property that’s going to be given a strong catalyst for rezoning and development. All we had requested is that in their use and development commitment, that when they do develop that property, that when they do rezone that property, assuming by that time that Regency will have already built Columbia, that they simply pay their one half share of the cost of Columbia Street. That maybe could be a year from now, it could be ten years from now, it could be 20 years from now. We’re not asking for....that was the proposal we made. We are flexible, and we’ve been trying to work for at least a couple of months now with the representatives of the Hirsch family to work out something so that the burdens of paying for the actual construction of the roads is shared proportionately and fairly, especially when Columbia Street with all those folks doing development in that area. What we would ask for you to do tonight, we don’t want to ask you to turn down the rezoning, because that would put these folks out for a year, and the land use classification is appropriate, but the plan is not appropriate. They are not sufficient commitments to build the infrastructure, as John Stoll notes in his memo. What we would ask you to do is to send this matter back to the Plan Commission to cause appropriate commitments to be placed of record to see that Columbia, and all other necessary infrastructure is done. Maybe the simple solution is to modify the use and development commitment to require the traffic study. There are many ways we can accomplish this, I’ve just simply suggested one because no other ideas were coming from the other side. But, it is in the best interest of this community, and in fairness of all the stakeholders in that particular area that there be more than just dedication of right-of-way, that there be commitments to build the infrastructure. The time to do it is right now, when we have before us opening up this untapped area which is going to go all the way to I-164. I would be more than happy to answer any questions you have at this time.

President Fanello: Does either Commissioner have any questions? Thank you, Mr. Shively. Do you want to go ahead and speak, and then they can–

Krista Lockyear: Good evening, Madam President, members of the Commission, my name is Krista Lockyear. I’m here tonight representing Decem Investments, a developer of the real estate along Burkhardt Road to the west of this property. Also Glenn and Fred Hessman who are owners of 21 acres that are undeveloped currently on the southwest corner of Burkhardt and Oak Grove Road. I would like to pass out some maps, just to help orient you with the properties that are owned by my clients and that have been developed by my clients.

Madelyn Grayson: Krista, do you have an extra one for the record? Is that the Waterford Park?

Krista Lockyear: Yes, I’ve got a record copy here. One point of clarification that I would like to make, as you can see on the maps I went ahead and just quickly hand wrote in the properties that are zoned C-4. It’s not the entire parcel of property across from what is being requested to be rezoned tonight. There are four individual plots that were zoned C-4, and in just a little bit I’m going to give you some history of my clients development, and I will explain how those C-4 zonings came about. Similar to Les and his clients, my clients do not oppose this rezoning. Obviously, this property is going to end up being a commercial development, and we’re very much in favor of that. What we do oppose is unrestricted C-4 development that doesn’t have any protection built in for the abutting land owners and surrounding developers. As your obviously aware, this area is rapidly growing and I also have a copy of the map from the most recent Comprehensive Plan. I’ve circled this undeveloped area, and it really brings in to focus how important starting this rezoning process is, as Les pointed out for the remaining unzoned, or non-zoned commercial property that the Hirsch’s currently have. Many developers in this area, including the county, have invested enormous amounts of money to cause this area to be the quality development area that it is becoming. These developers include Decem Investments, Regency, Cross Pointe, East Park Development, and Head Investments, LLC. Most of those companies constituted members that owned land out here similarly situated to the Hirsch’s for years and years. It’s only fair, and we’re asking you to help protect the developments that these developers have installed to date, and help protect their land values so that we don’t have a diminution into what has been built up to be a very nice area. We are not asking that these developers build the style building we ask them to develop. We don’t care what way they make the commitments for quality control. It could be by way of use and development, it could be by way of private covenant, it could be by way of limitation on uses, although when we initially approached them, we felt that that would be more restrictive than simply asking for quality control, as opposed to limiting the uses. The history, like Les told you the history of his clients, when Decem developed most of this area that you see on the colored map that I passed out to you, came in to....and Barbara Cunningham was with the Area Plan Commission at that time, Barbara we would like to go C-4 zoning with this property, and she and the consensus of the Area Plan Commission and the Commissioners at that time, let’s not bite off more than we can chew. Let’s take it a step at a time, let’s do it right so it is a quality development. They required Decem to come back and to rezone to C-2, at that time. Obviously, there are much, many fewer uses in C-2, the outside storage is significantly restricted in C-2, we had to restrict billboard uses, the ability to install billboard and pylon signs. All of that led to the type of development that we have out in the area at this time. When we did come up with the few C-4 uses that you see on your map, that I’ve pointed out, we had a particular user, and then came to Plan Commission with particular designs. The infrastructure, at that point, was already in place, under the C-2 overall development, and then asked to rezone up to C-4 grade, in order to accommodate the users, Southern Indiana Tire, Sonic, those type entities needed the C-4 zoning. Another example of a way that I keep saying quality controls can be implemented came about just recently with David Hirsch and Head Investments. David Hirsch sought to rezone a portion of the property that is at the northern end of your map, very close to Burkhardt and Florida, and wanted to go C-4 and came to our clients and said, this is what we want, can you support us? Again, we said, we’re happy to support your C-4 zoning, but we want some assurances that you’re going to make it as nice as we were required to make it. David Hirsch did agree, they entered into a private agreement that provided standard quality controls that you would find in a typical commercial covenant and restriction. That was perfectly agreeable to our clients and we moved forward. So, there are many methods that we can get these controls put in, but we really think it’s only fair that all developers out there, in some way or another, are required to put the quality controls in. Outline of the major points we would like to see, and that’s in my letter that I handed out with your packet; quality of structures, simply facade materials, some restrictions that we don’t have simply concrete block buildings built; limitations on outside storage. Clearly an example that I like to think of, we have Raffi’s restaurant with a nice, outside seating area. I’m not sure patrons are going to enjoy sitting there if they have to look at an outside lawn equipment storage area. It’s, we want to preserve the quality and the character of this area. Limitation on billboards and pylon signs, which Regency and Cross Pointe, as well as Decem and Head Investments have committed to. And some landscaping commitments, and we’re not, again, we’re pretty wide open on this, we’re not dictating this much green space, this many trees, but it’s the overall look and character of the area that we’re after. As Les pointed out the roadway development, these developers that I mentioned earlier have installed roadways. They have made the commitments and followed through with the traffic lights, with the traffic impact studies. Whereas this is a blanket C-4 without a plan, we have gone step by step in implementing the plans and showing you the plans before we got the rezonings. The, it’s kind of been alluded to and I was very familiar with it, because I helped out the developer that built the apartments behind Sam’s. The exact scenario that Les outlined to you is what happened with Columbia, Wal-Mart came in for their rezoning and said we’ll dedicate the right-of-way as a requirement to subdivision final platting. When my client came in to purchase that land, it was a large enough chunk of land they didn’t have to follow through with the plat, so we went in to Plan Commission and Blaine Oliver said, sorry we don’t need the plat filed. So, we have Columbia Street with not enough right-of-way dedicated now, and I think it’s that,”we don’t have to do it now because we’ll catch it at the next stage of the game”, mentality that led to that. Because we may not have the ability to catch it at the next stage of the game. Now you have the broad sweep, the broad view protecting abutting property values, and quality growth for the area that are both criteria that are set forth in the ordinance and in the state statutes as reasons that you can deny a rezoning. Again, I want to emphasize, we also don’t want you to deny this rezoning. We’re simply asking that you send a message to the developers, send this back to Plan Commission, get some written requirements that everyone can be assured will protect abutting land owners, will protect Vanderburgh County, and the development of the infrastructure in the future. I would be happy to answer any questions.

President Fanello: Are there any questions for Krista?

Commissioner Crouch: I don’t know if this is a question you can answer, Krista, or maybe Bev, but if we at subdivision review, if we require construction of the roads, is that enforceable? Can we, I mean, can we–

Bev Behme: Well, during the planning of the subdivision, right-of-way and the actual construction is required. Subdivisions can be approved by Plan Commission, and this is what happened with the Glass Subdivision, it wasn’t recorded. So, until that subdivision is recorded the right-of-way and the conditions are not there.

Commissioner Crouch: So, the safest way to guarantee that is through use and development?

Bev Behme: Is the use and development, because then it’s here at the zoning. Then, even if it would go to site review, they would come across the use and development and say, here’s what you have to do. That includes the construction of the right-of-way, and the dedication of the right-of-way. If that’s in the use and development commitment, there’s no question as to whether or not they would do a subdivision, or whether or not it gets approved at site review.

Krista Lockyear: The other thing I might add, at site review and subdivision approval they are very limited to the exact land they are looking at, which is, I believe Mr. Shively said that as well. Whereas in zoning, you are authorized to look at abutting properties, comprehensive growth, what this does to the area, as opposed to simply the real estate that’s being rezoned.

President Fanello: Thank you, Krista. Mr. Bodkin, did you want to rebut?

Madelyn Grayson: May we make a quick tape change please?

President Fanello: Sure.

(Tape Change)

Madelyn Grayson: Thank you.

Tom Bodkin: Very briefly, the area on his big plat that shows Columbia Street dipping down into Cross Pointe’s property, that’s not platted, that’s empty real estate that’s not been platted. As I indicated at the Plan Commission, who says that’s going to be Columbia Street? My people own all the land north of that. We have reason to want Columbia to lay on the property line as we get that far east, so we have access to the road. If Columbia dips down, as Mr. Shively’s map would show you, my parcel, basically, doesn’t have access to it, because both sides of his Columbia are in his clients real estate. That’s one reason why we’re not interested in sharing the cost of building a road to his real estate so that we can lose the advantage of it. Secondly, that’s miles and years down the road. The piece at issue here is 700 feet wide. It doesn’t even get all the way back to the apartment complex. By the way, we’re dedicating the right-of-way now. There’s no problem like the apartment complex. The apartment complex doesn’t have any dedicated right-of-way at all, period, end of debate. We do, we’re dedicating the right-of-way. As I indicated to you, we’re going to have to build Columbia now because we have a buyer. So, the issue in terms of where Columbia is going to go is going to be an issue that is going to have to be decided by my client, his client, a lot of other people when we get there, but while it may not go over the interstate, and I would agree it can’t go due east along my property line because it runs right into an apartment complex for which there was no dedicated right-of-way for Columbia about five years ago, let alone the other side of the interstate. It can indeed curve north with my property line and provide access to my 200 plus acres. Secondly, we are dedicating Vogel all the way across the 700 foot strip, which John was very interested in, as is EUTS, because that’s the one that’s going to be the big, major collector, I guess, in the middle. From what I understood from your engineer, he anticipates Cross Pointe Boulevard going due north, tying into Vogel as a way to get to Burkhardt. It’s very interesting that everybody wants me to have my zoning, but only on their terms. I guess that’s normal. Unfortunately, I’m not sure that’s really the issue though. Let me turn to Krista’s clients, Krista’s clients have unrestricted C-4 properties right across the road. Now, you can talk about my C-4 use, then I might have somebody that doesn’t want to look at Indiana Tire either, that’s really an irrelevancy. All I heard, and all I read when I got the letter from Krista a couple three days ago was you come back to Plan Commission, let’s draw restrictions on what you can do with your land, in terms of what the buildings have to look like, or what you can build, or whether you can do this or that. Across the road, in two different locations, is ground that is C-4, was rezoned C-4 by Krista’s clients with no use restrictions. Now, the fact that Barbara Cunningham talked them into C-2, so be it. I don’t believe there’s any record that the property was ever brought to the Commissioners as a C-4 and turned down. It started as a C-2, it got a C-2. When they wanted to upgrade to a C-4, they upgraded to a C-4 with no restrictive covenants at all, none. By the way the covenant between David and one of these plaintiffs was a covenant that dealt with widening of, dealing with roads and dealing with what’s going to happen when Florida Street got built. My clients own all of the land going to I-164. It is absolutely fascinating to me that somebody would suggest they’re going to develop it in such a way as to cause it to go down in value. That’s absurd. The only thing that’s going to happen to the land across the street, once we get started, is that’s it’s going to go up in value. But, there is absolutely no basis for you or the Plan Commission to require me to agree with them what my buildings will look like. It’s just simply not in the ordinance, and I submit to you that’s not really the purpose for zoning. This land is zoned agricultural. Your Master Plan notes it’s going to be commercial. That’s what we’re asking for is commercial. It’s in keeping with your Master Plan. We’re dedicating the right-of-way that your engineer wants. I’ve now told you, because we now have a sale on two and a half acres, we’re going to have to do the traffic study and build Columbia, and that will have to happen, because it’s got to be subdivided to do it. It will be in on sub review with regard to that. As I read John’s e-mail, perhaps I read it wrong, I got the impression that he basically reiterated what I just told you, if we did these things, that that was acceptable to him at this point for zoning. I would request that you grant this zoning so that we can move on with the issue. By the way, the frontage road issue, that’s a word of art, the contract I now have with a buyer requires the buyer to build what...a frontage road is a road parallel to Burkhardt, alright? They are going to have to build that to county standards, and John’s aware of that. That’s the first opportunity to move the roads north and south parallel to Burkhardt, as well as now east and west off of Burkhardt. The restrictions we’ve given with regards to access to Burkhardt protect Burkhardt, protect our land too, quite frankly, and more importantly protect the people across the road. We’re not going to be impacting their ability to get out of their land at, because we’re only going to be crossing Burkhardt Road at Vogel, at Oak Grove, and at Columbia. Nowhere else will we cross Burkhardt Road. We’re simply committing to that. I would request that you grant the zoning. If you have questions, I would be glad to try to answer them.

Commissioner Crouch: Mr. Bodkin, does the use and development commitment say that you’re going to construct the road?

Tom Bodkin: The use, the development commitment says we will dedicate the right-of-way. It does not say, we did not commit to build all the roads, at this point. Only to dedicate the right-of-way.

President Fanello: Do you have anymore questions, Suzanne? Do you have any questions?

Tom Bodkin: Thank you.

President Fanello: Thank you, Mr. Bodkin. Will the, did you, will the road construction be addressed during sub review?

Bev Behme: If a subdivision is required. If, and I understand the one lot subdivision is going to be required on the first one, but that’s just two and a half acres. That’s not the rest of the 47. Parcelization, they do not require the dedication of roads. It has to be a subdivision. Then again, I’m not sure site review has jurisdiction to require right-of-way or the dedication or the construction of right-of-way. A subdivision would require it, but, again, it has to be a recorded subdivision. A letter of credit would be put up in the amount that John requires for the roads, but there’s no guarantee, at this point, that they’ll be anything other than the one lot subdivision, right now.

President Fanello: And the traffic study, is that something that you can–

Bev Behme: If a subdivision is required, and anything that would be sold in increments of five acres or less, then subdivisions are going to be required. But, if one person developed, like Lloyd Crossing, then a subdivision would not be required, and an impact study would have to be done, I guess, at site review, and I’m not sure how much leverage site review has to require an impact study.

President Fanello: Do you have a question, Commissioner Mosby? Mr. Bodkin, does your client have any problem with putting the wording about a traffic study in the use and development commitment?

Tom Bodkin: The only problem is a time one, because, again, we now have a purchase agreement. If we change the use and development commitment, which as I understand your ordinance, we have to go back to Plan Commission, which then, and then come back to you, and that’s just a timing problem. At the time we’re at the Plan Commission we did not have a signed purchase agreement. We do now have a signed purchase agreement.

President Fanello: In order to expedite that, can we make that a requirement of this rezoning? A traffic impact study?

Kevin Winternheimer: If you put it in the zoning and make it part of the use and development commitment.

President Fanello: But it still has to go back–

Tom Bodkin: Right, as I understand the state law, if I make a representation to you that my client is going to do x, y, or z, and they don’t, then you can undo the zoning. That’s my understanding of the change.

Les Shively: You only have 90 days to do that under the statute.

Tom Bodkin: Well, so in 90 days if I haven’t undertaken the traffic study, if the engineer wants it, then they can come back and ask you to undo the zoning. It’s a timing problem more than anything else for us.

President Fanello: And I’m not really, it depends on, I don’t know what your buyer, or how your buyer is going to develop, and I don’t know what’s going to happen up front, but my conversations with Rose today were, I’m not so concerned about the traffic study being done up front before you know exactly what’s going to go in there, it’s as you develop the property. Because the traffic impacts will change.

Tom Bodkin: Correct. The use makes such a difference as to what the study would show.

President Fanello: Exactly.

Kevin Winternheimer: If I might ask a question, Tom, what does one week do to you and your sale?

Tom Bodkin: One week is not a problem.

Kevin Winternheimer: Then I ask for comments from the other attorneys that are here. I appreciate your concern for not having to bounce back to the Plan Commission and then waiting and then coming back here, those things that you have outlined verbally, what if you reduced that to an agreement running to the County Commissioners, not part of the zoning use, but a separate agreement. That gives you time, John’s not here, I don’t know when John’s coming back.

Commissioner Mosby: Wednesday.

Kevin Winternheimer: Wednesday. Review that with our County Engineer, and then they could just continue this rezoning until next Monday.

Tom Bodkin: I have no problem. I would be happy to do that, make it a private covenant to the county as long as Mr. Shively and Krista agree, that’s reminiscent of another fight somebody had some time ago, as I recall about covenants, private covenants as opposed to being restrictive covenants, as opposed to being use and development commitments.

Les Shively: Mr. Bodkin, if you remember correctly the Court of Appeals upheld them.

Tom Bodkin: That’s true they did. You’re right. So, I guess, it’s okay. We’re happy to do that. Just want to make sure we don’t get into any of that fight. I’ll have it for you by Wednesday.

Kevin Winternheimer: Well, my concern is not whether you or your client will live up to their verbal commitments, my concern is that everybody understands what you’re doing.

Tom Bodkin: Right.

Kevin Winternheimer: That way reduce it to writing, everybody understands what’s to be done.

Tom Bodkin: We will prepare that tomorrow, fax a copy to Les and Krista, and you, and be prepared to submit it as a private covenant running with the land enforceable by Vanderburgh County, and come back and visit–

Bev Behme: (Inaudible. Mic. not on.)

Tom Bodkin: If you want to you can, but you always tell me that you don’t want to.

Kevin Winternheimer: They don’t build roads.

Tom Bodkin: I know. They also don’t force me to either.

President Fanello: I appreciate that alternative. I don’t doubt what you’re saying.

Tom Bodkin: I understand.

President Fanello: It’s just that–

Tom Bodkin: Be happy to do that.

President Fanello: –Kevin put it best, reducing it to writing.

Tom Bodkin: Sure.

President Fanello: That’s my concern is the traffic impact study. I don’t know if the other Commissioners have additional concerns.

Kevin Winternheimer: So, if you go that route, what you would be doing is continuing this rezoning, everybody would have the right to come back and say what they want at next week’s meeting at 5:30.

Tom Bodkin: Would be happy to do that.

Kevin Winternheimer: Do you have any comments on that, Mr. Shively?

Les Shively: On behalf of Regency, we’re certainly willing to give it a shot.

Kevin Winternheimer: Yeah, no one’s committing to vote for or against it.

Les Shively: I understand. We’re certainly willing to give it a shot.

Kevin Winternheimer: We’re just reducing to writing what his client, and clarifying what his client is willing to do.

Les Shively: We’re willing to give that a shot.

Tom Bodkin: One week from tonight?

President Fanello: Yes. Do we need a motion to continue this?

Kevin Winternheimer: Yes, we’ll just continue this matter until next week’s meeting at 5:30.

Commissioner Mosby: I’ll make a motion that we continue the rezoning for Burkhardt Road, VC-4-2004 until next Monday night at 5:30.

Commissioner Crouch: Second.

President Fanello: So ordered.

Tom Bodkin: Thank you.

President Fanello: Thank you, Mr. Bodkin.

(The rezoning portion of this meeting recessed at 7:11 p.m.)