VANDERBURGH COUNTY

REZONING BOARD

JULY 26, 2004

(Continued from July 19, 2004)

The Vanderburgh County Rezoning Board resumed their continued meeting from July 19, 2004 at 6:51 p.m. on July 26, 2004 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: Rezoning, final reading for VC-4-2004.

Chris Wischer: Good evening, Chris Wischer here from Bamberger, Foreman, Oswald and Hahn. I’m here on behalf of the petitioner, the Hirsch family limited partnership. I’m here with David Hirsch who is a partner in that family limited partnership. This is a continuation of last week’s rezoning meeting. You recall last week we came before you with a petition that included a use and development commitment. To remind you, that commitment, by that commitment our client committed to limit access to the 40 acre parcel that we plan to rezone to, directly from three locations, that being, when I say access, I mean access to Burkhardt Road, that being Florida Street, Vogel Road and Waterford Boulevard. In addition, of course, the real estate would be accessible from Oak Grove Road and Columbia Street extended. In addition, that use and development commitment called for the dedication of right-of-way for an extension of Vogel Road, the route and width to be determined at the time of site review or subdivision, but in the event of any subdivision or parcelization, that commitment preserves the extension of Vogel Road, as was required by your County Engineer. In addition that use and development commitment committed to dedicate such right-of-way as was necessary for an extension of Columbia Street along the southern border of the property to be rezoned. We also made a commitment regarding drainage, I don’t believe that commitments been an issue. Concerns were raised during last week’s meeting about, even though our client had committed the right-of-way, they had made no real commitment to pay for the road, and there was concern expressed about the need for traffic studies, if and when that was necessary during the development of the property. The meeting was continued so that we could craft a private covenant, which we did, and we provided copies of that covenant last Friday to each Commissioner, to the County Attorney, to the County Engineer. I’ve provided copies to counsel for Regency who was here that night, and counsel for Decem Investments who was here that night. I have additional copies, unless you have a copy of the actual covenant.

President Fanello: I have my copy. Does everyone have a copy?

Kevin Winternheimer: I would like a copy.

Madelyn Grayson: I’ll need one for the record also, Chris.

Chris Wischer: Essentially this covenant does three things, two things, however you want to look at it. It’s an attempt to address the concerns raised by the County Commission last week. With respect to Vogel Road the commitment provides that at the time Vogel Road is built, whether it’s because the property is parcelized or subdivided, the property owners abutting Vogel Road, as extended, will be responsible for the cost of putting in the road. It doesn’t give a date or a time that Vogel Road is going to be built, because as we said last week, we don’t know when that’s going to be, it’s going to be dictated by the timetable of development for the entire parcel. But, when coupled with the use and development commitment, at the time the property is developed, right-of-way will be dedicated, and the property owners, whether that be our client or whoever, it is going to run with the land, whoever owns the property is going to be responsible for the construction of the road. Same holds true with Columbia Street, that’s paragraph two of the covenant, as such time as Columbia Street is built, those property owners abutting Columbia Street will be responsible for the cost of extending Columbia Street. Essentially, when it’s built, my client or whoever comes after my client in the ownership of the property will pay for the construction of those roads. With regard to the traffic study, the covenant basically provides that at such time as the property is either subdivided or parcelized, either one, whether it comes to sub review or site review, a traffic study, if required by the County Engineer, will be conducted. Speaking with the County Engineer, and I had the opportunity to speak with him today, after he got back from vacation and was able to review the covenant, we don’t know yet whether a traffic study is really going to be required. It depends on the use, it depends on the layout, it depends on the plat, what we’re platting at the time. Obviously, the first lot we plat on Columbia Street, you know, it maybe will require a traffic study. If John Stoll believes it needs a traffic study, then we’re going to have to do a traffic study. Now, when we plot lot number two right next to that lot, who’s to, you know, we may or may not need an additional traffic study. So, you know, we’ve given a little bit of power here to John, you know, if he says we need one every time, then, by God, we’re going to have to do it every time, but we’re hopeful that we can sit down with him during the site review process, sub review process and really determine what’s needed, and once the traffic study is done we’ll be armed with that information to determine what improvements need to be done with the property. So, I think that addresses the specific concern of Commissioner Fanello about a traffic study. I would also like to comment, you may note that one of the remonstrators from last week, Decem Investments, is not present tonight. Following last week’s meeting I’ve had several conversations with Krista Lockyear, their counsel, who was here last week. I, you will recall that Decem’s concerns related to use commitments and restrictions they would like to see on the property relating to things such as outside storage and building materials and other kinds of more aesthetic kind of concerns. Through our discussions, I assured Krista and her client that their concern, which primarily related to property values and preservation of property values, was shared by our client. Essentially, our client, the Hirsch family limited partnership, has approximately, you know, 190-200 acres left after this rezoning and this development. They certainly share the same concern that Decem Investments did in preserving property values for the remainder of their development, and in no way intend to do anything with their development that is going to damage property values for Decem Investments. Essentially, I assured Krista simply that our client intends to do it right, she conferred with her client and was satisfied and did not appear tonight. She asked me to make those comments on the record, and so I have done so. In a nutshell, that’s where we are. We’ve done our best to address the concerns that were specifically raised by Commissioner Crouch with regard to construction of the road, and from Commissioner Fanello with regard to the traffic study. I believe we’ve done that. Certainly we’ve come a long way since we initially filed this with no commitment, and left the county in a better position, I think, for it. So, with that, we request your approval.

President Fanello: Are there any remonstrators here?

Les Shively: Madam President, members of the Board of Commissioners, my name is Les Shively, representing Regency Properties. Let me just, and I’m not going to rehash what we talked about last week, but let me remind you all, this is 50 acres for a carte blanche C-4 with no limitation on uses, something that’s very rare in this community anymore, since we started utilizing the tool of use and development commitments. Fifty acres that will start opening up this entire section that has been undeveloped, starting to the east. Your County Highway Engineer, who you rely upon, and rightly so, in looking at traffic, infrastructure and needs for traffic, gave you a very lengthy memo. I’m not going to read it to you, but I’m going to hit the highlights. He goes;

“Finally it was noted that during the APC meeting that the use and development commitment only states that right-of-way will be dedicated for Vogel Road and for Columbia Street. It does not mention construction of either of these roads.”

Final line in that memo, from Mr. Stoll is:

“I’m agreeable to this so long as all applicable infrastructure improvements are able to be required through the subdivision review/site review process.”

In other words, what Mr. Stoll, and he can speak for himself, if he’s still here, the point he’s making is, I’m fine so long as there’s something in the system that sees that these roads get built. Let me tell you what my client has already done, and this was also, I’m sure inadvertently misrepresented last week, but let’s clear the record, Columbia Street within Cross Pointe, part of which goes into Cross Pointe has already been dedicated to the county, and a letter of credit has already been posted. Here is the section (Inaudible).

Madelyn Grayson: Les, I’ll need one for the record also.

Les Shively: Madelyn, I didn’t forget you. We not only have dedicated it, which as Mr. Stoll says is half the equation, the other half is guarantee that it gets built. There’s a letter of credit. We’ve got to build it. We’ve got to build within a certain period of time, or that letter of credit goes to the county, the county will have the money to put it in. Regency doesn’t work that way, we will build it. That’s why we dedicated it, that’s why we posted the letter of credit. Wal-Mart has already posted their letter of credit for Columbia. Let me also make it clear that last week I heard Commissioner Fanello, as well as Commissioner Crouch say, we want to see a commitment for a traffic study. I didn’t hear you say, we want to see a commitment if some third party wants a traffic study. You wanted to see a commitment for a traffic study, and you wanted to see them work up some private agreements and disseminate it to the parties of interest. Now, I didn’t get my draft e-mailed until 9:00 this morning, and my office got it, and I was in trial in Warrick County. I called Mr. Wischer on Friday morning, reminding him of the fact that I had not received anything, and that I would like to have an opportunity to review it. He indicated to me that there would be no way that he would be able to get it to me today, that day, on Friday. The best he could do was sometime Monday. I explained to him again my dilemma. Apparently he stated here this evening that other parties received copies on Friday. Be that as it may, I’ve had an opportunity to review this, and this covenant commits the Hirsch’s to do nothing. It basically says as to Vogel and Columbia, when we build Columbia, we will build Columbia. It’s nonsense. It’s sarcuitous. What needs to happen, there needs to be a commitment that says we will build this road. There will be a commitment to build that road, that part of the road within the right-of-way that we’re dedicating that runs along our property. It doesn’t say that. It says that;

“As such time as the extension of Columbia is actually constructed”

Constructed by whom? They ought to have a commitment to do the construction now. The traffic study, here’s what it says, it says, basically, on number three that they are going to do a traffic study. It doesn’t say that they are bound by the traffic study, they’re just going to have a traffic, what the use is a traffic study if they are not going to be bound by the recommendations of that study. This private covenant does absolutely nothing. Now, you heard last week that time is of the essence for them. Do you know why time is of the essence? Because they had the audacity, after the Plan Commission failed to give them a do pass recommendation, they had the audacity, assuming you would just rubber stamp and give them approval, they had the audacity to go out after that meeting and sell a part of this property. Now, they say they’ve got to hurry up and close, and you’ve got to hurry up and make a commitment that this community is going to have to live with for years to come. They haven’t done what they said they were going to do. I don’t know about the Decem folks, my conversation with the Decem folks during my lunch break today was not that they were happy, that they were very unhappy, but that the Hirsch’s were unwilling to go any further to address the issues that were of concern to them, and that’s why they wouldn’t be here this evening. I don’t think they’re just shot in the you know what with this particular project, but they understand that what you asked to be addressed in these new commitments did not go into the aesthetics, and I think that’s why they’re not here this evening. This agreement does not answer the question, and I know...still, as much as I feel they’re giving everybody here the run around, and I feel very frustrated, and I feel very frustrated that your time is being wasted, I still don’t want to see them being shot down on this rezoning. I just want to see it be done right. This is the time to do it. When this community commits to change from agricultural 50 acres to C-4 and set the wheels in motion for this development to run all the way to I-164, the time to do it is now. If it takes another week to get this thing right, let’s get it right. But, it’s not right, and it’s just words on paper that are absolutely meaningless. We ask that you delay voting on this until we get it right.

President Fanello: Thank you, Mr. Shively. Chris, did you have anything that you wanted to add?

Chris Wischer: I can. I disagree. With all due respect to Mr. Shively, this commitment does do something that our prior covenant didn’t do. It obligates, whoever those owners are when that road is built to pay for the construction of the road. It obligates them to do a traffic study, if the County Engineer wants one done. I’ve had discussions today with Danny Leek who’s the engineer on this property about the traffic study, and you all have dealt with traffic studies before, traffic studies are somewhat arbitrary in that they look at a proposed development with a lot of assumptions and fact to come up with recommendations about what that person doing the study thinks will be necessary. It’s, I understand where Les is coming from, but I certainly am not going to advise my client to obligate him to do everything that a traffic study says. That traffic study is going to come back, and it’s going to say, based on what we know about the use, these are the things that are recommended. Everybody, all the planning folks at the site review, sub review are going to have that information, our client is going to have that information. That will arm us to be able to sit down with the County Engineer and the other entities involved, and really look at what needs to be done. We hadn’t committed to do that before, we’ve committed to do it now. I don’t think that it needs to be done, quite possibly, every time we plat a lot. So, our thought, was we’ll let the County Engineer say, when he has concerns about the proposed use, he can say when we do a traffic study. If he says we need to do a traffic study, we’re going to have to do it. He may say it on every lot, then we’ll have to do it. It’s an expensive undertaking, but it’s certainly worth it if it’s important, if it’s necessary for that development to ascertain what improvements need to be done. With regard to when the covenants were sent, I apologize to Les. You all will see on your e-mail it came from Tom Bodkin. I happened, I was in the office early on Friday, but I left and spent the day with my family, and had been told that it would probably be Monday, because John was gone, that we would send it, that it would be done, and the e-mail was sent, and I got in this morning and sent it to Les and to Krista. That gave them a day to review it, which isn’t a lot more time than you all had, but with that being said, I apologize to Les for that. I don’t think that should have any bearing on whether you act tonight. I don’t think your time is being wasted. I think, I take umbrage at that comment. Put simply, let’s just look from a practical standpoint, we’ve obligated that no access will be on Burkhardt Road, no access, except at three distinct locations. It’s quite, my understanding, and John Stoll is here and he can speak to these issues, that Waterford and Florida will likely not be direct extensions of those streets, but simply entrance points, right turn lane only more likely than not. With this buyer that we have, and we’re platting a small lot on the corner of Columbia and Burkhardt, we have no choice but to build Columbia. How else are they going to get to that property? It’s simply a practical necessity that we build Columbia. And we’re going to build it, it’s in our contract that we have to build it. So, I want you to be assured that our client intends to do this right, we’ve done our best to give assurances where we could that we’ll build those roads, and that’s what we’ve done. Again, with that, we request your approval. I can answer any other questions.

President Fanello: John....does anybody have any questions for Chris? John, did you have anything that you wanted to add about the private covenant?

John Stoll: I can’t really address what was said last week, since I wasn’t here, but my understanding was that the traffic study was an issue. In that regard, like I said in the e-mail that I sent out, sometimes developers don’t want to do those because of time and expense, and I’ve had one engineer for a developer say tell me what I need to build and we’ll go build it, and get my project moving faster. Likewise, one’s like Wal-Mart on the west side, for example, everything they did out there is the direct result of a traffic study. So, either way, as long as we can get the infrastructure improvements, I’m okay with it. Like Chris Wischer said, an individual lot may not warrant it, but as far as when the remainder of that property starts developing, if it’s in groups of lots, or large, single developments, then it may warrant a traffic study at that point. Based on what’s been done out there on previous developments, existing developments that are out there right now, I could give you a pretty good list of what I think is going to have to happen, and a lot of that was in that e-mail as well, as far as traffic signal modifications, turn lane extensions, road extensions, you name it. I think I could give a pretty good list of what would need to be done right now without a traffic study. However, a developer may dispute that and want to do a traffic study to say, no, I don’t want to do those things. So, either way, a traffic study or not, as long as we can get the infrastructure improvements, I’m okay with this, and the original use and development commitment implied that the site review or sub review process would be the point where we could mandate the improvements. So, I didn’t see anything that made it impossible for us to get the improvements. Like I told Mr. Wischer this morning, the original proposal did not have a use and development commitment, and when that was provided it was a step better. With this private covenant, I think it’s a step better still. I don’t know if there’s any legal loopholes, I don’t know if you saw anything like that, Kevin, that would prevent the county from being able to mandate the improvements, but short of that, I was okay with it.

Kevin Winternheimer: I guess, the bottom line is, John, the county will not build a road. So, if somebody wants to develop on a lot, somebody’s going to have to pay for it, but it’s not going to be the county. The county will not build a new road for these people.

John Stoll: Right. It will need to be built to handle the traffic generated by that development.

Commissioner Crouch: Bev, is Area Plan also satisfied with the changes that were made?

Bev Behme: On the private covenant? We actually (Inaudible, microphone not on) the Commissioners and John. We can the use and development commitment, but not this private covenant.

President Fanello: I am just going to ask Chris one question. I think Mr. Shively does bring up a good point, after I re-read that paragraph, can you explain the wording of that, ”at such time as the extension of Vogel road is actually constructed”, I’m not–

Chris Wischer: Well, I guess, when it’s built, they’ll pay for it, is what it says.

President Fanello: Okay, well, it almost assumes that there’s someone else–

Chris Wischer: Well, here’s, let me tell you, and this has been, we’ve been up front with John Stoll in our conversations with him about, you know, this could be a long time in developing. You know, the, it may be the Hirsch’s that own the property, it may be somebody else that’s developing the property, and what that paragraph does is say that when the road is built, those property owners along Vogel Road or Columbia Street will be responsible for building that road.

President Fanello: But, it almost makes it sound like the road’s constructed before their responsible for building the road.

Chris Wischer: Well, they’re responsible for the cost. They’re certainly not going to pay for it, they’re responsible, I can see what you’re saying. I think it’s–

President Fanello: It’s a little confusing.

Chris Wischer: I think it’s a matter of semantics, and I think the key point is that the county is not responsible for the cost of the road. As Mr. Winternheimer says, the county is not going to build it. Whoever develops it is going to have to build it. Again, practically, it’s got to be built. There’s really not going to be anyway around it.

President Fanello: Kevin, do you have any...is it–

Kevin Winternheimer: I mean, I don’t have anything to add other than that point, that when it’s to be built, it’s not going to be the county, it’s going to be the people who are trying to develop behind, I guess behind would be the term, behind your client there, if it’s not, in fact, your client. They are going to have to put that road in.

Chris Wischer: Right.

Kevin Winternheimer: Otherwise, they’re going to have a piece of dirt there and that’s it.

Chris Wischer: To go through the process, the use and development commitment says when we develop it, sub review/site review will dedicate the right-of-way. This goes a step forward, and it just says, at such time as the extension is contemplated by the dedication of the right-of-way, which is in the use and development commitment, at such time as that right-of-way is dedicated, as such time as the road within that right-of-way is constructed, it’s going to be those property owners responsibilities to pay for it. That’s what it says.

President Fanello: I think you could read it a couple of different ways.

Kevin Winternheimer: But, it’s your intent, and you’re drafting this, that either your client or your client’s purchasers will pay for that road, is that right?

Chris Wischer: Absolutely. I don’t know that I have a, what do you call it, a provision that says that the writing is the writing and that’s all it is, is not in there, so in extent these representations could be incorporated into that bargain, or that covenant, you know, in the future if that needs to be implied, so be it. But, absolutely, our client, or successors, will pay for any construction of any road that we’ve set forth in here, Columbia or Vogel.

Commissioner Crouch: And you’ll do so when the County Engineer deems, or site review or sub review deem that it’s necessary?

Chris Wischer: To build it?

Commissioner Crouch: Uh-huh.

Chris Wischer: Certainly at the time it’s developed it’s going to have to be built. So, at the time, you know, I can’t put a...development, I can’t put a timetable on at what point, when we start breaking ground, then so many days after that we’ve got to build the road. I mean, we haven’t thought, we don’t know when that’s going to be built. So, we’ve not put those timetables in there, but that’s the intent.

Commissioner Crouch: Can we enforce intent?

Kevin Winternheimer: I’m sorry?

Commissioner Crouch: Can we enforce intent?

Kevin Winternheimer: Sure. I just want to clarify, in case it’s on the record and this record is kept forever, so, when neither I nor you nor he are sitting here–

Chris Wischer: That’s right.

Kevin Winternheimer: –at the time when this comes up to be built, they are on the record for what they intended that to mean.

Chris Wischer: That’s right. Absolutely, it’s our clients, and/or it’s successors, as property owners along that extension responsibility to pay for that road.

President Fanello: Is there anyone else in the audience wishing to address the board?

Commissioner Crouch: I was going to ask your opinion.

Bill Jeffers: I’m not sure I’m going to express my opinion. I just have a question. I would like to play the devil’s advocate and point out a situation, having been on the site review committee for several years, and the subdivision review committee for several years and seen how it’s played out, and wiggled, and so forth, and how various applicants come up with their legal and engineering consultants and say, the code doesn’t require us to do this. Area Plan Commission is saying, we don’t enforce private covenants, and so forth. So, I’m just going to ask for someone’s opinion on one example. What happens, as Mr. Wischer points out when the property is developed along one of these extensions of one of these roads that’s not built yet, and the right-of-way is dedicated, but the clients on the north half of that right-of-way, on the north side of that right-of-ways says I only have to build half the road. Now, this has already happened. When Wal-Mart dedicated their half of Columbia Street, correct, Bev?

Bev Behme: That’s right.

Bill Jeffers: They put up a letter of credit for their half of Columbia Street, but they wouldn’t build it, because the other half lay on the Hirsch’s property, and the Hirsch’s wouldn’t put up a letter of credit for the other half. So, that letter of credit languishes there as the price of construction, you saw the prices of asphalt go up year by year, earlier in the meeting, the prices of concrete do the same. The price of the labor does the same. So, when Wal-Mart goes to build, or when someone goes to build Columbia Street with the Wal-Mart letter of credit, I don’t know just how far they are going to build it. But, my question is what happens when a buyer of a parcel of the Hirsch’s property says, okay, here’s my plan, but I only want to build half the street, because that’s the half that serves me. The other half hasn’t been sold yet, it still remains a part of the Hirsch’s property. Who builds the other half of the street? It’s not just the street, it’s what lies under the street in the form of drainage infrastructures. I only want to put in my side of the drainage curb inlets and pipes. I don’t want to have to make the connection to the rest of the system, because that’s on somebody else’s half of the right-of-way.

President Fanello: Thank you, Bill. Is there anyone else in the audience wishing to address the board?

John Stoll: I was going to say in regard to what Bill’s talking about, he’s exactly right, that is what’s happened out there on Sam’s Club. To carry that further, the lot behind Sam’s, immediately east of Sam’s, was parcelized rather than being included as part of the subdivision, because the subdivision, basically, expired. So, that was the reason why I was looking for a trigger in the use and development commitment that allowed the site review process to mandate infrastructure improvements. Which, my concern was, this same parcel of ground could be parcelized just like that was, then we would lose all leverage to try to get any kind of improvements. So, I think the use and development commitment at least addressed that. In regard to the streets being built half at a time, if that same situation occurs on this one, I guess, the only leverage I could say that I would have would be I wouldn’t sign the permit until a plan was presented to build the entire road. Whether or not that would be enforceable, and if it went all the way to court, remains to be seen, but that would be the leverage if somebody on the south side of Vogel came in and said I want to come in and develop this lot, and the person who owns the north side was not willing to participate, then I wouldn’t sign their site review permit. Obviously, I wouldn’t be able to bring a set of street plans in here. Short of that, I don’t know what other mechanism we would have in place that would prevent the same problem we’ve got with Sam’s from occurring again.

President Fanello: Thank you, John.

Commissioner Crouch: So, John, what you’re saying is there’s nothing we can do that could prevent that from happening. Is that what you’re saying?

John Stoll: Going back on the wording of the private covenant, I don’t know if that would give us the grounds to force both parties to participate, because the way the wording is in the covenant, to me it indicated that they would have to come to the table and build the road, because it says abutting and adjoining. If that was sufficient to force them, there again, I don’t know how you’d force them to ante up and pay their share of it though.

Kevin Winternheimer: Well, you can always go to court to enforce the agreement, is the bottom line. I’m not familiar, totally familiar with the Wal-Mart situation, but it sounds like there are some different, factual differences, between that situation and this. In this situation, is the dedicated right-of-way all on their property?

John Stoll: Right, in this case.

Kevin Winternheimer: It sounds like Wal-Mart was a little bit different. It sounds like half was on one parcel, and half on another.

John Stoll: Correct.

Kevin Winternheimer: Therein was the dispute. Where I think that could be an important difference between that situation and this situation. But, yeah, we have a lot of leverage on the permit process to enforce this. The bottom line is we’re not building the road, period. They are going to have to come to you and the Commissioners for various permits to get it done. We could stop them there. If that doesn’t get the job done, then we could always resort to court for it.

John Stoll: And there may be some other loophole that I haven’t thought of, or Bill, or anybody else on some way that somebody could find a way to go around the process and not build those roads. I couldn’t think of it off the top of my head, but it could be out there. Like Bill said, we’ve seen many variations on how these things occur. In reviewing both the use and development commitment and the private covenant, I was looking at it from the perspective of trying to cover the county, but, likewise, work with the developer and their attorneys to give them the flexibility to develop the ground as they see fit. Usually, what the developers want and what the county wants, don’t necessarily coincide. So, that’s where it got to be a problem on trying to get it specific enough to cover the county’s interests. Likewise, to give them their flexibility in how they want to develop their property.

President Fanello: Thank you, John.

Bill Jeffers: Very briefly, one more scenario. In other subdivisions where the developer builds the entire road and drainage infrastructure and then sells the individual lots. In this case, what if he sells a lot or two beyond what’s been built? Then that developer of that lot comes in and says, well, the road hasn’t been extended to the lot that I bought, and I’m ready to build, but the people that way from me haven’t built the road yet, but the county entered into an agreement that prohibits my access. You know, inhibits my ability to access my lot. So, I want somebody to build that road. Somebody is responsible for giving me access to that parcel I bought so I can go ahead and develop now.

Kevin Winternheimer: This should be in his chain of title. I assume the legal description covers the entire parcel.

Chris Wischer: Right.

Kevin Winternheimer: So, when they bought that, he’s on notice that the, as a sub-purchaser, he’s responsible for it, that the county is not going to build him a road. That’s not what we do.

Chris Wischer: Just to expand on that. The access limitation is in the use and development commitment, not the private covenant. Either way, whether it’s in one document or the other, it’s going to be in the chain of title, just as Mr. Winternheimer said. Any person who buys is obviously subject to those things that are in their chain of title, those restrictions. They’re going to be on notice of that access restriction, and I think they would be hard pressed to claim that they didn’t have reason to know about that access restriction. I would also like to, just one point I think I would like to clarify, when we were here last week, let me back up, the most likely scenario for this property is that it’s subdivided. Through that subdivision process, certainly there are, letters of credit have to be posted, the roads will have to built, they are all going to be internal, our client owns the entire property. Okay? What we tried to do was to assist the planners in the event that somebody would buy a larger portion and parcelize, which there was no protection. There’s no protection in the ordinance for a parcelization. Even in the case of a parcelization, which would not be otherwise required by your ordinance, there will be right-of-way dedicated, and the party abutting the road will be responsible for it’s cost. There are always going to be scenarios we could think of that would come up that may put this to the test, but the more likely case is that we subdivide it. The reason we put these covenants in here was to give the extra protection, that even in the case of a parcelization and site review, the traffic study is going to be done, which otherwise wouldn’t have happened, and that it’s clear who’s responsible for paying for the road. Because Mr. Winternheimer has said the county is not going to build it, somebody is going to have to build it. They are going to have to come to the table, or they have no road.

President Fanello: Thank you, Chris. If there are no more questions or comments–

Les Shively: One more comment.

President Fanello: Okay.

Les Shively: You know, I went to law school to learn how to draft documents so that they are clear and unambiguous and lay people know what their rights are. Not to create ambiguities that can later ripen into law suits. Why not get it right the first time? Why do we have to have all this nuance on the record about what the intent is, what...say it in good old English what the commitment is so it’s in the...right now it says we will build it when we build it. That’s no commitment. Let’s get it right. All this nonsense about these minutes, you know, these are outside the four corners of the instrument. Yes, maybe they can be used in court cases, but why create a situation that is going to invite interpretation five, ten, twenty years from now? Let’s get it right the first time. Again, I don’t want to see this rezoning defeated, I just want to see this document be placed of record to do what it was represented to do. Very simple.

President Fanello: Thank you, Mr. Shively. Chair would entertain a motion.

Commissioner Mosby: I will make a motion to accept VC-04-2004 with use and development and private covenant, and call the roll.

Commissioner Crouch: No.

President Fanello: I need for you to second it to get it on the floor, and then I’ll roll call vote.

Commissioner Crouch: Second.

President Fanello: Okay. Roll call vote. Commissioner Crouch?

Commissioner Crouch: No.

President Fanello: Commissioner Mosby?

Commissioner Mosby: Yes.

President Fanello: Are you sure you don’t want to go back and do some rewording?

Chris Wischer: Obviously, if the Commission were to require some rewording, then we would take that time, and avoid a denial, then, certainly, we would have to do that. Otherwise, obviously, we would be barred for a year from bringing it back.

President Fanello: Well, and that’s what I...Commissioner Crouch, if they came back with rewording on the construction of the road are you concerned with that?

Commissioner Crouch: Yes. I think the Surveyor raised a couple of good points. You know, we ought to look to avoid law suits, not invite them.

President Fanello: I don’t want to have, for you to have to wait for a year, but if I go further, you’re going to have to wait for a year.

Chris Wischer: Okay, well, that’s fine. Absolutely.

President Fanello: I don’t know, can I stop the–

Kevin Winternheimer: Well, they can rescind their motion and second, and have a new motion to hold it again. We’re not in the 90 day window, or whatever?

Bev Behme: No, we’re okay.

Kevin Winternheimer: We’re okay on that?

Bev Behme: The Plan Commission voted July 7^th, so we have plenty of time.

Kevin Winternheimer: Okay, we’re good. We have time.

President Fanello: Because I don’t think anybody’s intention here is for you to be defeated for a year. I would hate to see that happen.

Chris Wischer: We don’t want to be defeated.

President Fanello: Would–

Kevin Winternheimer: I forgot who made the motion.

President Fanello: Mr. Mosby made the motion to get it on the floor. Would you entertain rescinding that motion?

Commissioner Mosby: Sure.

Commissioner Crouch: Second.

President Fanello: So ordered. Why don’t you tighten up the language on the construction of the road, and we’ll put it back on for next week.

Chris Wischer: Okay.

Kevin Winternheimer: For the record, anyone who’s interested here, we’ll be back next week–

Chris Wischer: Next week.

Kevin Winternheimer: –at the regular Commission meeting.

Chris Wischer: Okay.

Kevin Winternheimer: So, we don’t have to readvertise.

Chris Wischer: Just to clarify, so that I understand, we’re talking about construction of the road.

President Fanello: We’re talking about construction of the road.

Chris Wischer: Making sure that it gets built.

President Fanello: Yes.

Les Shively: I will assure the Commission, if we get that language agreed to, I won’t be here next Monday evening, because we will have something that we’ve already signed off on (Inaudible).

President Fanello: Well, I think there’s some good points raised here tonight. I really do, and, but I don’t want to see you defeated for a year.

Chris Wischer: No. Again–

President Fanello: I don’t think that’s necessary.

Chris Wischer: It’s always been our client’s intention to develop this property right, and if we need to take a week, put some harder language in there to assure you that that’s, you know, give you comfort that is our intent, then we’ll do so.

President Fanello: Okay. Thank you, Mr. Wischer.

Chris Wischer: Thank you.

(The rezoning portion of the meeting was recessed at 7:32 p.m.)

President Fanello: Do I have a motion to adjourn the Commissioners meeting?

Commissioner Mosby: So moved.

Commissioner Crouch: Second.

President Fanello: So ordered.

(The Commission meeting was adjourned at 7:33 p.m.)

CONSENT ITEMS:

         Jail Expenses:

         United Consulting Engineers: $20,832.79

         Vectren Energy Delivery: $17.59

         Williams Brothers Construction: $1,153,030.48

         Great Lakes Hotel Supply: $16,975.80

         Peyronnin Construction Company: $116,329.05

         Mel-Kay Electric Company, Inc.: $32,400

         integrator.com: $3,800

         Travel Requests:

         Health Department (1)                        SWCD (1)

         Employment Changes:

         Knight Township Assessor (1)            Circuit Court (2)    Burdette Park (2)

         Voters Registration (1)

         Requests for Telephone Service:

         Weights & Measures (1)                     Circuit Court (1)

         Treasurer: Submit Monthly Report for June 2004.

         Auditor: Submit Financial Statement.

         County Clerk: Submit Monthly Report for May 2004.

         EMA: Indiana Citizen Corp Council Grant Agreement

         Sheriff: Submit Weekly Jail and Community Corrections Reports.

         Those in Attendance:

         Catherine Fanello           David W. Mosby             Suzanne M. Crouch

         Bill Fluty                          Kevin Winternheimer      Tammy McKinney

         Madelyn Grayson           Phil Lawrence                 Brad Ellsworth

         Troy Tornatta                  Royce Sutton                  Bill Lockard

         John Stoll                        Dennis Hudnall               Gary Hohman

         Chris Wischer                 Les Shively                     Bill Jeffers

         Bev Behme                     Others Unidentified         Members of Media

VANDERBURGH COUNTY

BOARD OF COMMISSIONERS

Catherine Fanello, President

David W. Mosby, Vice President

Suzanne M. Crouch, Member

Recorded and transcribed by Madelyn Grayson.