VANDERBURGH COUNTY

REZONING BOARD

NOVEMBER 15, 2005

The Vanderburgh County Rezoning Board met in session this 15^th day of November, 2005 at 4:25 p.m. in room 301 of the Civic Center Complex with President Cheryl Musgrave presiding.

President Musgrave: I would like to reconvene our meeting. We have a couple of items on tonight’s agenda, a first reading, and then a final reading. If we could cover the first reading at this time.

Commissioner Nix: I would like to move approval of first reading for Bruce Biggerstaff, Sr, 7900 Telephone Road, change from agricultural zone to R-1 zone. It’s docket number 2006-1-PC VC-1-2006. Move approval for first reading.

Commissioner Shetler: Second.

President Musgrave: Any discussion? All those in favor?

All Commissioners: Aye.

President Musgrave: The motion carries.

Commissioner Nix: Roll call?

President Musgrave: Roll call? Commissioner Shetler?

Commissioner Shetler: Aye.

President Musgrave: Commissioner Nix?

Commissioner Nix: Yes.

President Musgrave: And I vote yes.

President Musgrave: We move now to docket number 2005-29-PC VC-9-2005, the petitioner, Gregory C. Moore, represented by Mr. Shively. Mr. Shively?

Les Shively: Madam President, members of the Board of Commissioners of Vanderburgh County, my name is Les Shively, representing the petitioner. Prior to proceeding here, I believe my associate gave each of you a blue folder. I’m going to follow that tract of my presentation, and we will walk through that. Then we’re more than happy to answer any questions you have included in that presentation. The first item I would turn to, call your attention to, is item number one which is the staff field report. I won’t read this in it’s entirety, but the proposal here to change the zoning to R-3 multi family is consistent with the comprehensive plan, and not only that, it is also consistent with the change in circumstances in the immediate area as a result not only of the proximity of the property to the existing highway, state highway, but also to the University Parkway project. In a moment here, I’m going to show you some recent photos of the area to give you a better idea of what we’re talking about in terms of the fact that this area has changed. This aerial photo here, the GIS doesn’t show the improvements in place for University Parkway. Again, towards the end of the presentation we have some recent photos that will give a little better description of that area. Again, this is, we would be consistent with the comprehensive plan, which, and I will read from the staff report:

“The step up in zoning to R-3 is consistent with the overall residential plan for the area.”

Multi-family development is considered a residential use. As you know, there is no particular classification for student housing. That is the intent to use this property for a student housing project, but it is done so under the R-3 classification. The staff report also makes reference to a use and development commitment. As you know, if a rezoning is approved, and if it’s subject to a use and development commitment, that commitment becomes a part of the zoning ordinance and controls all development on that property in addition to requirements under state law and the ordinance, notwithstanding whether the property changes title, what have you. As they say, in the law it runs with the land. Let me, on tab two, excuse me, yes, tab two I have a copy of the use and development commitment. I’m not going to read it verbatim. I would like to hit some of the highlights. There are no highlights on the first page, that’s just the standard whereas boilerplate they require you to put there referring to the enabling statute for these instruments. The first item on page two of the use and development commitment is the traffic impact study. The petitioner will make as a condition, that prior to any development out here, to conduct a traffic impact study for not only those things which must be done to accommodate this project on-site, but off-site improvements as well. This indicates, presently, that the off-site work that would be necessitated by the impact study that the developer would contribute up to $150,000. The developer stated at the Plan Commission meeting, and states this here again today, that the developer’s intention is not to have any cap. The developer has worked before well with the County Engineer’s office and EUTS and is prepared to take on those responsibilities for the off-site improvements necessitated by this project with no cap. I would note that you’re going to hear from some of the residents out there, there is some indications of some existing problems out there that are going to have to be addressed by the county at some point in time in the future regardless of whether this project comes forward. So, one of the things you need to consider is not only is this appropriate land use given the comprehensive plan, which it is, but what it will do in terms of assisting the county to meet an already existing problem in this particular area. The second item of the use and development commitment is the commitment by the developer to extend not only sanitary sewer to serve his property, but also to run the sanitary sewer in such a way and to create laterals to all of the adjacent single family residences, so they may avail themselves of city sewer. Almost all of these homes, I think 100 percent are on septic systems. As you know, septic systems are problematic by nature, and property values certainly go up when one has sanitary sewer. It increases the value, it increases one’s investment. Mr. Moore’s intention is to extend that sewer in such a way so that each one of those properties can access it, via a lateral to their property. It was noted in the staff report, that the sewers that are presently there, that we would be tying into have not yet been accepted by the utility, and we understand that that is one of the steps that will have to be completed before we do any sewer work out here, but that the existing sewers would have to be accepted by the utility and we understand that. In addition, we are going to provide you those adjacent property owners $5,000 per property to be used as they deem fit to assist them for any on-site work that they have with a plumber to connect their sewer and to do any landscaping in the area where we’re going to put the buffer fencing which is mentioned in item number three. It’s our intention to create along the property lines that are adjacent to the single family properties a privacy fence. The ordinance says the maximum height is six feet. We would also, if this is approved, make good faith efforts to obtain a variance up to eight feet so that we can totally screen this particular community from the single family residents. The fourth item is that the number of units would be limited to 250 would be the maximum number of units. I would note parenthetically that a feasibility study is going to have to be done for this project, and the feasibility study will actually dictate how many units will go there. The 250 just sets the max. It could conceivably be based on whatever current demand and need is at that particular time, and that could be less than the 250. 250 is the max. Also, as we start working on the site plan for this property, it may very well be that we can’t get 250 units there and still meet parking requirements, landscape, set green space setback requirements. As I indicated before, maybe I didn’t, when this was originally filed it was filed for R-4. This is R-3. We changed it to R-3 and make it clear that the structures will have no more than two stories as item number five. Number six, the community will be operated by a professional management company, and will have appropriate security. In regards to item number seven, site plan, as you all are probably aware, even if a rezoning is approved, before you can start building, I mean, before you even start getting a building permit, you have to go to what they call the Site Review Committee, have your site plan approved. How you’re going to access the property. How you’re going to provide for utilities. How you’re going to have your parking. How the building is going to look on the property, etcetera. This is a committee that meets weekly and has all the city and county technical people that closely scrutinize that site plan. At this point in time, we don’t have a definite site plan at this juncture. We’re still looking at it from different perspectives, but what we have said to the residents, and what we have put in the use and development commitment, is that we will provide to all of the adjacent landowners prior notice, at least ten days prior to the Site Review Committee meeting, so they can attend that meeting and have input on that layout. Because of the number of acres involved, this is about 11 ½ acres, we will have to go to drainage board for approval of a drainage plan to handle the surface water, and we will also be providing notice to those landowners as well, as is required. Finally, lighting, any lighting on this particular property will be done in such a way as to illuminate the community and not to bleed over and to create interference of quiet and enjoyment by the neighbors. We came to this use and development commitment and the amendment to the original request as a result of an initial meeting we had back in August with many of the landowners out there. Although we didn’t get specific recommendations, we heard a lot of concerns and we tried to address those concerns by putting this use and development commitment together and incorporating those things that can be enforced through a use and development commitment. You’re going to hear this evening from several people that say that this property should be used for single family. The fact of the matter is that rightly or wrongly this property no longer is suitable, from an investment standpoint, for single family residential. I provided to you under tab three a letter, an opinion letter, regarding this property from Mr. William Bartlett. Mr. Bartlett is a certified real estate appraiser with MAI designation. Mr. Barlett is a member of the Appraisal Certification Board. He’s a past president of the local and state Association of Realtors. In fact, he is an individual who’s been hired by governmental agencies, including Vanderburgh County, on various appraisal issues that have arisen for public projects. I won’t read his letter, it’s pretty concise, but essentially Mr. Bartlett states two opinions; number one, this subject property is not suitable for single family residential development, it is more suitable for the R-3 or the multi-family, and also indicates that with the use and development commitment adhered to that he sees no detrimental impact upon adjacent residential properties. Finally, since the aerial photos that are available now do not completely show what’s going on in this particular area, I’ve included a series of four photos. The first two photos that are provided under tab four are looking from the property towards campus looking at the exit ramp off of State Road 66, and also viewing parts of the new University Parkway. The two other....folks, it’s not those photographs.

Unidentified: These are our photographs.

Les Shively: The other two photographs are, again, photographs of the subject property and where it lays and how it lays in relationship to University Parkway and in relationship to existing highway, the state highway in that particular area. Before I open it up for questions, let me make a statement here absolutely clear that this project will not proceed until the concerns that were set forth in a letter that was addressed to Mr. Mark Foster of the Area Plan Commission by the USI’s President dated October 10^th of this year, until those concerns and other concerns which USI officials have raised in our discussions with them concerning input on design and security, until these are addressed to the satisfaction of USI, and until USI’s satisfaction with those issues, by the way that would also include a feasibility study conducted by a consultant that the university feels comfortable with that can show that there is a demand and that the existing university feels these facilities will not be a negatively impacted. Until all of that can be put in writing to the satisfaction of the university, this project will not move forward. Because this project is meant to compliment what the university is doing out there, and not to be a negative aspect to it. Finally, I have one thing I negated to, neglected to point out, is the projection of additional property tax dollars to be generated from this project. We based that upon the construction cost and they vary. As you can see that’s our last item there. There was a lot of discussion at the Plan Commission meeting about how much tax revenue would be generated. It suffices to say that the tax revenue generated will be in the mid six figure range, and that’s not only based upon our projections on construction costs, but also looking at some smaller developments, in particular, Cross Lake Apartments on the east side which presently generates at least $170,000 per year in tax revenue. That’s significant not only from the standpoint that that’s revenue going to the county, it’s significant from the fact that this is private property and it’s less, it’s a project being done with private dollars not public dollars. It allows the public dollars from higher education to be used for more direct higher education type facilities. So, it’s a win-win proposition from that standpoint. Finally, there was a lot of discussion about occupancy rates, etcetera for facilities on the west side. A feasibility study was done by the firm of Will Stump and Associates of Carmel, Indiana on behalf of Mr. Moore regarding some other, regarding the Eagle Village Apartments. This was done the early part of this year, and I don’t have extra copies, but I have the complete report here. I’m more than happy to share it with you, but here are the findings that he had, and he worked in conjunction with data prepared by Mr. David Matthews. I’m sure you all are familiar with Mr. Matthews. He maintains an on-going data bank, if you will, on apartments and vacancies. And just going through some on the west side, at that time that this report was done, Copper Creek was at 99 percent capacity, Mission Viejo 97 percent, Westwood 89 percent, Foxfire 92 percent, Orchard Gate 93 percent, Lakewood West 100 percent, the Brickyard 98.78, Brooklyn Place 90.69 percent, and Cross Lake, which is at 90.87. So, as you can see, that’s pretty good occupancy, and we all know that many students do live in these apartments. So, there again these apartments are pretty well saturated with not only students but other tenants. Again, I will try to answer as many questions that we believe are relevant to this request. I’m more than happy to answer any questions you might have at this time. Also with us this evening is not only Mr. Moore, but in the back is Mr. Jim Morley, Jr. of Morley and Associates the project engineers.

President Musgrave: You referenced two documents, the letter from USI of October 10^th--

Les Shively: Yes, Ma’am.

President Musgrave: –and the study that you have in your hand which you didn’t name that study.

Les Shively: I’m sorry, this was an appraisal of the Eagle Village Apartments, 810 Schutte Road prepared for Geneva Capital by Will Stump and Associates of Carmel, Indiana, dated March 21^st of this year.

President Musgrave: Will those documents, copies of those documents, be submitted for the record?

Les Shively: We can do that. Sure, you can have this complete document.

President Musgrave: Thank you.

Les Shively: I’ve tabbed the part that I was reading from on the record.

President Musgrave: Thank you.

Les Shively: There you go.

President Musgrave: The letter from USI.

Les Shively: It’s already part of the letter from the Plan Commission, I believe.

President Musgrave: Okay, if you could give a copy to...okay, thank you.

Les Shively: I’m sorry, I thought that was already part of the record.

President Musgrave: Different sets of records.

Les Shively: Okay, alright.

President Musgrave: Do the Commissioners have any questions?

Commissioner Nix: One question.

Les Shively: Yes, sir?

Commissioner Nix: 250 units maximum?

Les Shively: Yes, sir.

Commissioner Nix: And that would be four, these are four bedroom units?

Les Shively: Yes, that’s my understanding yes.

Commissioner Nix: So, potentially we’re looking at 1,000 people in this 11 acres?

Les Shively: If the feasibility shows that it can financially support 250, and if we can get 250 units in there under the present code and still have sufficient parking and still be able to meet all the other development requirements from the zoning ordinance, that would be the max.

Commissioner Nix: Would it be your client’s, and he may need to answer this, I don’t know–

Les Shively: Sure.

Commissioner Nix: –would it be his intention to possibly sell this parcel after it’s rezoned before he ever develops it?

Les Shively: The, and he can answer that question, but normally what would happen in a situation like this, even if there was a sale, he would be required to complete the project, he would be required to remain a part of the project and to get it up to the point where it achieved a certain occupancy rate before there would be a complete turnover. So, he’s going to be the one that has to invest the capital to build it, to get it to the appropriate occupancy level to meet the projections of the feasibility study. So, that’s something where, if your question is will he get it, if it’s rezoned today is he going to sell it tomorrow? No.

Commissioner Nix: Okay.

Les Shively: If there is a sale, like a purchase agreement, there will be all these contingency things that he is going to have to do like complete the construction, get all the infrastructure in, take care of everything else and then guarantee a certain occupancy level.

Commissioner Nix: You addressed some concerns about, and some money that you looked to put out there to help county road issues?

Les Shively: Yes, sir.

Commissioner Nix: Have you addressed anything with INDOT? Because it looks like that’s only part of the problem here. Has INDOT been, have you, is there a commitment? Or is there anything beyond county roads to address traffic concerns? Because, once again–

Les Shively: Yeah, I’ll let Mr. Morley answer that, but you’re right, because, and the reason we....what the county has told us, Mr. Nix, is the fact that most of this is INDOT’s jurisdiction. So, we don’t want to get into one of these. So, if the feasibility says that certain things have to happen before, and in implementing those we’ll have to work with INDOT as well as the County Engineer. Maybe Mr. Morley can answer that in more detail for you.

Jim Morley, Jr. : The existing traffic concerns were brought up at our first meeting that we had with the neighbors, and so I followed up with that. I told them I would. I spoke with John Stoll, the County Engineer, and he said that the signalization of that intersection there where the off ramp comes off, which is where the people are having a hard time getting off at, he said that is an INDOT issue. I spoke with Dale Lucas at the Vincennes District of INDOT and he said that they had no plans to do anything there. He was aware that the traffic had been switched so the off ramp went straight through, but as far as any kind of modifications there, they had nothing on the books there at INDOT. I told him that University Parkway was getting ready to open within the next six months or a year, and he said they had nothing planned to do any kind of improvements there.

Commissioner Nix: I guess, you touched on this too, Mr. Shively–

Les Shively: Yes, sir?

Commissioner Nix: –usually when things come before this board there’s some conceptual things, there’s a plan that shows a number of buildings–

Les Shively: Right.

Commissioner Nix: –some building layouts and that type of thing. This is really kind of hard for me to understand how we can get to this without really knowing what we’re going to be putting on there. I mean, other than the fact that we’re looking at 250 units, maybe, I mean, how many buildings is that? Twelve buildings? Or 14 buildings? Or have you researched that at all? Have you looked at–

Les Shively: That’s an engineering function. I’ll let Mr. Morley answer it, but there has been significant work done in that regard, and he can explain to you why we are where we are at this point.

Jim Morley, Jr. : If you did eight unit buildings, then you would end up with 32 buildings, I believe, I think is what the count is. It is undecided at this time what exactly those buildings look like. Through the development of Eagle Village, Mr. Moore has looked at what he likes and what he doesn’t like about Eagle Village, and would want to redo the building plans. For example, I think that one of the things that he’s considering is instead of each apartment having two bathrooms, each apartment would have four bathrooms. Or, you know, a modification like that. So, no new footprint has been put together to put on a plan. If you use the same building footprint that you use, that Eagle Village was, then I think it ends up being 32 units, or 32 buildings roughly. But, that’s the intent is to probably use a larger footprint, a larger apartment to give a little more room to the students and some more amenities. So, because that exact footprint has never been laid out, or that floor plan has never been determined, an exact site plan has never been created. But, my guess is that we’re only going two stories and buildings typically go in intervals of eight units, because the stairwells, you know, and usually from a grade change standpoint it works better if you have an eight unit building, oh, excuse me, and then step to another eight unit building. They could be combined to have two 16 unit, you know, two eights put together and create one 16. So, then, I guess, you have 16 buildings. But, that has not been finalized or worked out with the scenario of only having two story buildings and a larger footprint.

Commissioner Nix: I guess–

Les Shively: There’s something I want to add to that too. This is something that’s not going to happen in 2006. It’s going to be down the road. The first thing would be to have that feasibility study done. Whatever, that feasibility study will be done by consultants, not that just do appraisal work, but are specialists in these types of projects. They will say, yes, a project like this will go at that location with this type of configuration, these kinds of units. That’s what’s going to really drive a lot of the design as well.

Commissioner Nix: One other question, just curious.

Les Shively: Yes, sir?

Commissioner Nix: There was a statement that you made a little bit ago about this lends to an R-3 versus just a residential. Why would not just homes be adequate in this? I mean, if it’s just for the sake of money, is that it?

Les Shively: Well, I can give you two reasons. In my, I’m not a real estate evaluation person. Years ago when my late father was in the real estate business and I was practicing law we had a deal. He told me I promise I would never give an opinion on the value of real estate and he said he wouldn’t practice law and write leases. So, we had....so, this is not my opinion, I rely upon on experts. He taught me that a long time ago. That’s why I went to one of the best, Bill Bartlett, I mean, you can look at Mr. Bartlett’s opinion. Moreover, two things I would tell you, I represented the Hartig family in their negotiations with the county for the part of their property that was acquired for the University Parkway property. Two things I learned from that experience, number one there weren’t any developers beating their door down to buy that property for single family development purposes. The main reason is the proximity of the now two highways in that area. Also, the price that was ultimately negotiated in an arms length situation with the input of several professional people was a price per acre reflecting a multi family type of utilization. It’s interesting to know, I represent a lot of developers that are always looking for land, and there’s not too many of them looking for land at that particular spot so close to a highway. If you look at where the developments are going, especially where things have merged on the north side, which is our fastest growing area in the county, they’re off of county roads and away from four lane highways. You know, the closest one to a highway that I can think of is Clear Creek Village and that’s pretty well far off of Highway 41. So, it just doesn’t lend itself even though, you know, builders, the housing market is still strong around here, builders are still looking for land, but they will, they’re in competition, and that just does not lend itself, as Mr. Bartlett pointed out in his opinion. Again, that’s not mine, that’s just what the experts have said. Okay, yes, sir?

Commissioner Shetler: Can you clear up a few things here?

Les Shively: Sure.

Commissioner Shetler: As I understand it, there’s a feasibility study is what will be the triggering device in order to give you the green light to build?

Les Shively: Absolutely. Absolutely.

Commissioner Shetler: And that will also dictate the kind of construction?

Les Shively: Yes.

Commissioner Shetler: And the amount of construction?

Les Shively: Sure.

Commissioner Shetler: And the whole business?

Les Shively: Right, because, I mean, there are professional consultants that go, the trend nationally, from what I’ve been told, the trend nationally is to where it’s possible for universities that have resident students to depend upon the private sector to provide those needs. As a result there have emerged these consultants to go, that specialize in this kind of work, doing these kind of feasibility studies. That’s what drives the lending, that’s what drives the scope of the project, it drives everything. You’re right, Mr. Shetler. In addition, because the concerns USI has raised as well, the comments they’ve had, the feasibility is number one, but also, you know, it has to be something too in it’s appearance and the way it’s set up compliments the university’s facilities.

Commissioner Shetler: Isn’t that contrary to most business practices though? I mean, it seems as if most business activities that I’ve been involved in in the past, the feasibility study comes first to tell me whether or not there’s a need for that particular activity. Then everything else centers around that. It just seems as if we’re kind of flipping–

President Musgrave: I’m going to interrupt everyone at this point in time. The sirens are going off, and there are tornado warnings for Vanderburgh County. We haven’t had an announcement from the Building Authority to take cover–

Unidentified: I don’t think there’s a speaker in here.

President Musgrave: Is Marissa still here?

Madelyn Grayson. Yes, and she’s watching it live.

President Musgrave: Do we want to continue? Or would we like to take cover?

Unidentified: Continue.

President Musgrave: I’m sorry?

Unidentified: Continue.

President Musgrave: Alright, anybody who would care to take cover, now would be a good time.

Unidentified: Where would we go to take cover?

President Musgrave: Go out, take a left, take another left, as if you’re going in the Commissioners doors, and there’s a staircase directly across from the Commissioners doors that will take you to the basement. Okay? We have somebody who’s watching the internet coverage in the next room who will come in and tell us should the situation develop from here. But, I did want to tell you that there is a tornado warning and that the sirens are going off. That’s an opening there above here and it’s plexiglass with glass above it, so, even though we’re in an interior room this is not a windowless interior room.

Commissioner Shetler: I might suggest too that anybody that feels like going down three floors down the steps and everything like that, that maybe some of the other, maybe some of those folks may be able to use this room here, because it’s an interior, particularly for folks that–

President Musgrave: It goes right in that door.

Commissioner Shetler: Right.

President Musgrave: I’m sorry to have interrupted you with that.

Commissioner Shetler: I think I had it out.

Les Shively: I recall your question, it’s a good question. If Mr. Moore was the owner of this property, something he’d held on to for a long period of time, that’s exactly what he would do. The point of the matter is, he doesn’t own the property, he has a window of opportunity to purchase it, and that window is narrowing, and he’s in the position where he can buy it and hold on to it, but he’s not willing to do that if he doesn’t at least know that he has the zoning classification in place. That’s purely the reason why we’re moving forward with the zoning now. That’s got to be done before he commits to buying the property and hanging on to it.

Commissioner Shetler: Okay, thank you.

President Musgrave: I have one further comment. You’ve made two verbal promises here tonight. One is that in your use and development document, number one, the traffic impact study has no cap of $150,000.

Les Shively: Right.

President Musgrave: And, two, that you will be doing a feasibility study, which is not reflected anywhere in this use and development plan. Why have you not committed those two promises to writing?

Les Shively: Well, I guess, that’s a little misstatement of the record. In the Plan Commission meeting, the $150,000 cap was discussed, and after there was feedback in the public hearing, which is what I assume public hearings are for, we agreed to remove that cap. So, if this is approved, I suspect what we would have to do is go back and amend the use and development commitment to add, to take that away and we would have to come through the rezoning process and come back to you to take that out. So, we’re saying that if this is approved, we’ll do that and take that cap out by an amended petition, an amended use and development commitment.

President Musgrave: Okay, they are telling everybody to take cover. We’re suspending the meeting. What do you call that?

Commissioner Shetler: Recess.

President Musgrave: Recessing this meeting right now.

Commissioner Shetler: That was my favorite time of the school day.

(The meeting was recessed at 4:50 p.m. for a tornado warning in Vanderburgh County.)

(The meeting was reconvened at 5:08 p.m.)

President Musgrave: As soon as I get the television’s attention we’ll go back on the air. Alright, Mr. Shively?

Les Shively: Yes, Ma’am?

President Musgrave: I’m not sure if you were in the middle of an answer, or if I was in the middle of a question.

Les Shively: Let’s see if I recall your question. Your question was about the removing the cap on the traffic off-site work and also about the feasibility study. We probably would have to, as I indicated before, we would have to amend the use and development commitment to do that to remove the cap. And, also to add the language in the feasibility study. Now, let me tell you why it wasn’t in there before. The Plan Commission usually has been very, very specific about what they want in a use and development commitment and don’t want, because they want to be able to have something that’s related to specifically land use, per se. But, while during the break here I was trying to kind of come up with some language, and this would be up to Mr. Mills in the sense that, you know, well, first of all if that’s what you all wanted, to change the use and development commitment for a feasibility study and to remove the cap, you would have to send it back to the Plan Commission for us to amend it accordingly. Then it would have to go through that process. If that is your desire, while we’re already going back to remove the cap, we would work with Mr. Mills and his folks, but some language that I thought might work is something to the effect that says, “subject to a feasibility study warranting demand and need for student housing and constructing only those units warranted by the feasibility study up to the 250 max”. Now, I just roughed that out while we were taking our storm break. But, I mean, if we’re going to have to go back and remove that cap, and it has to go back to the Plan Commission, we can certainly put some language in there regarding the feasibility study, assuming that the staff of the Plan Commission feels comfortable that there’s some way they can monitor that. I suspect we could also put something in there that would say that upon completion of the feasibility study a copy would be submitted to the Plan Commission and put in the file and become a part of the official record, and the Plan Commission on this property. There’s all ways to do it. We’re certainly willing to do that if the staff of the Plan Commission says, yeah, we’ll allow you to do that and allow the use and development commitment. Again, I guess, the beauty of that is the fact that it runs with the land. If it is sold or whatever, anybody in the chain of title that wants to do this kind of project as outlined, we’ve outlined here today in the use and development commitment would have to do that feasibility study and submit it to the Plan Commission staff to show it’s been completed and put it in the file, and be subject to the parameters of that study. We’re willing to do that.

President Musgrave: Are there any other questions of the petitioner? Are there remonstrators? Mr. Claybourn?

Jim Claybourn: Can I use this pointer here? Is that okay? I just kind of want to point out a couple areas on the overhead there. How far away will this work?

Unidentified: Push that button.

Jim Claybourn: Okay, obviously, this is the Lloyd Expressway, USI’s on the southern side, this is university housing. This segment right here is now almost complete. The University Parkway going north. This section of Eickhoff now is cut off, it’s a dead end. Eickhoff now picks up right here at Middle Mt. Vernon and joins in over here. So, right where it says University Parkway is where Eickhoff actually is now. So, this property is right on Eickhoff. This is the exit that comes off of the Lloyd and turns into 62, and if you can see there the dark streak right there, that’s the left turn lane people coming off the Lloyd make to go into USI. People sit here for ten, 15, 20 minutes at a time right now waiting to get across. I had somebody coming to work on my house a couple of weeks ago and he made the mistake of turning off here and coming over, and had to sit here, he said 15 minutes before somebody would let him through, which makes sense, this is a right-of-way. So, anyway, this is a mess now. That’s the intersection that’s such a problem. Instead of a cloverleaf being built and going right in, for some reason they built this ramp that went to the left turn. This would be the access road to the property. This little short segment right here would tie Eickhoff to University Parkway, which would be these people would be coming up and waiting, a thousand cars waiting for who knows how long without some major changes being made. I just wanted to point that out before I got started. My name is Jim Claybourn. I live at 513 Coffeetree Lane, in the Willow Acres Subdivision, which is this subdivision right here just to the east of the property in question. I and our fellow neighbors would like to thank the Commissioners for this opportunity to speak to the rezoning on this piece of property. Mr. Shively in his presentation mentioned that the rezoning petition meets one of the criteria of the comprehensive plan, that being maintaining it as a residential use of the land. Technically speaking this may be true, but we as neighboring property owners feel that it does not comply with the spirit of the plan. To classify the R-3 zoning requested for this particular 1,000 bedroom project that’s fitting in with the current surrounding residential development, is not meeting with the intent of the plan. As you can see from the map, nearly all the property north of Indiana 62, within almost a mile radius is currently zoned either agricultural or R-1. That was the white and yellow map, and this is the one that we have here. The white and yellow is the zoning. You all are familiar with the color coding. USI is over here. This is the university housing area.

President Musgrave: Would you hesitate just a moment while we change the tape?

Jim Claybourn: Sure.

(Tape change)

President Musgrave: Please proceed.

Jim Claybourn: Okay, the proposed R-3 zoning allows, and this particular project proposes a high density apartment complex with up to 1,000 bedrooms planned. You heard that figure from Mr. Shively and from Mr. Moore. We feel this type of development definitely does not fit in with the current and desired future use of this surrounding neighborhood. Please note that I do not use the term neighborhood loosely. This is a very stable neighborhood of owner occupied, single family homes. Many owners have lived here 30, 40, 50 years or more. Several of the homes are occupied by the original owners. There are several widows, retired single ladies of retirement age who live in the area. They stay there because these are the homes and the neighborhood that they have invested a large portion of their lives in. They feel secure and a part of the neighborhood. It’s not right that after nearly 40 years of investing in their home and neighborhood that they would have to wake up every day to a 1,000 bedroom student housing complex practically in their backyard. One of the things that we did, this map we have here, we had petitions drawn up, took to all the neighboring property owners within the radius that we looked at before, 101 people that we asked to read the petition and to sign it if they were opposed to this rezoning. We had 100 people who signed it that they were opposed. We have quite a few people here. Neighbors, stand up if you would anybody from our neighborhood. So, you know, in spite of inclement weather this is very strong feelings about this. Any of you that are in favor of the zoning stand back up again. Okay, so you can see it’s, everybody here it’s unanimous, and like I say we only had one of the 101 property owners that we contacted did not sign the petition. The red pins on the map are the property owners we contacted and the ones that signed the petition that they were against the rezoning. I have a handout that I would like to give to you. This is some figures from USI, their occupancy rates on their university housing. There are three columns there, three sets of numbers. The numbers to the left are on-campus housing. You can see the percentage occupancy of those on campus units ranging from 78 to 92 percent, roughly, for the last five years. Fall semester on the top, spring semester on the bottom. The next, the center set of figures is the Golden Tower Apartments, which the university purchased several years ago when they anticipated a need for housing. You can see that those have been around 55 percent, down to a low of 33 percent this past spring. The university has divested themselves of that property. The right column is the combined figures on those two, and you can see that it has been under 80 percent for most of this time period down to this past spring it was 73.1 occupancy rate. So, there is some numbers there, actual numbers from USI as far as what the university housing situation is. According to the letter from President Hoops, which I think you have received, he mentioned that Golden Tower was sold because of the declining occupancy of the university housing. The university has developed primarily within the boundaries of Schutte Road, Highway 62, Farmington Road and Broadway, the area south of Lloyd or interstate, I’m sorry, Indiana 62. At the time most of us moved out there, our houses were built, we knew that it was a growing area, we knew that it was a growing school, but we felt pretty confident that the development would stay south, which it has. The university has stayed south there. We would like to see it continue growing, but to continue growing in that direction. In the recently publicized master plan the university sent out, they said that they would like to have all residences within a ten minute walk on the campus. The campus would be all enclosed, a loop around the campus, no more than a ten minute walk from the housing to any university building. Parking has been mentioned as a concern. Mr. Moore and Mr. Shively have said that they will meet the code for the number of parking spaces required. There is, I call it a loophole in the code, it was written several years ago, probably did not have student housing in mind. The code requirement for any apartment unit of more than two bedrooms is only 2.33 parking spots per unit. That calculates to 582.5 parking spaces for a 1,000 bedroom complex. I know several of you have children in college, probably most of them, or all of them have a car at school, most kids do anymore depending on the campus. If every student had their own car that means there’s going to be over 400 cars that are looking for a parking place every night. Mr. Moore has had to buy some property adjacent to Eagle Village to increase the parking there, because it looks like it’s going to be inadequate. People are parking in the apartments that are not even yet rented. Mr. Moore and Mr. Shively, along with Morley Engineering, did hold two meetings with neighbors to answer questions and concerns. Very little information was offered, only what was requested by direct question. At the first meeting there were some drawings that looked like they were from Eagle Village presented as a probable building design. At the second meeting no drawings or plans were presented. We have not seen a site plan for the proposed property. Basically, all we know is that they want rezoning in order to build a 1,000 bedroom apartment complex on an 11 plus acre lot. Mr. Moore, Mr. Shively mentioned that Mr. Moore has offered to pay the 15 or so property owners who’s lots adjoin this site $5,000 to help with sewer tap in fees, etcetera. We contacted all these property owners to determine their interest in this offer. Most felt that their property values would fall far more than $5,000,not to mention any other costs that they may incur to try to deal with the increased noise, lighting, loss of privacy, litter, etcetera. Not a single owner wanted the money if it meant having this development in their backyard. In fact, several gave a more graphic description of where the money should go. They felt very strongly about that. Speaking of litter, we wonder what kind of trash collection facility or dumpsters will be required here? Where that would be? When those would be emptied? You know, if it’s along the back line along the houses there, that’s another concern that we have. Mr. Moore and his associates have attempted to anticipate and address to some degree certain construction related topics. The two meetings we had those were the kinds of things that came up. We’re not used to this type of a procedure. We’re not elected or appointed officials, we don’t deal with rezonings. I’ve lived out there 23 years, and this is the first that I remember it coming up. So, we were kind of fighting it the only way we knew, which was kind of the drainage, lighting, landscaping, traffic and so forth. However, the bottom line is this proposed 1,000 bedroom student housing complex is wrong for this neighborhood. One of the ladies who spoke at the Planning Commission meeting, Mrs. Wigginton, lives on West Terrace Drive, which is right up here, I’ve got another handout that I want to show you, it’s a blow up of the intersection there where Eickhoff goes into the University Parkway. The orientation, the incomplete road would be to the north, which would kind of match up with that. On the right, the top right corner is the proposed rezoned area. Those little dots on the streets there are, we took a, this aerial view, found a car on one of these streets, superimposed it in this area to see how many cars could fit on there. On that little link between Eickhoff and University Parkway you can get four cars there. You can see the three cars backed up waiting to turn left. It doesn’t take very many cars before you’re back to the turn. Somebody coming around the curve there could have very limited site. It could be a really dangerous intersection. The other thing Mrs., building on this, Mrs. Wigginton mentioned at the last meeting was, if this is backed up, if the entrance of the apartments is farther north, which is kind of what we’ve been led to believe, then the, somebody running late for class is not going to want to wait here very long to make a left turn, then get up here and wait another 15 minutes. We’ve got a feeling that they are going to turn right here, go up to West Terrace Drive, cut through, right here is West Terrace School. This is Key West Subdivision, and we feel like they would go up here, turn right on Schutte Road to get back to USI, or back to the Lloyd to turn left. So, they are very concerned, obviously, about traffic shooting through the neighborhood. A college student who is late for class, not to mention all the traffic and congestion here with West Terrace School. Mr. Shively also mentioned that this area is not conducive to R-1 type construction. Key West Apartments have been built within the last few years, there’s been a couple of houses, this development here has been built in the last few years, and there’s been a couple of other houses along Middle Mt. Vernon that have been built. So, there has been some construction of R-1, single family, owner occupied homes there within the last several years. The thing I want to wrap up with, some of you may be familiar with the management, motivational author, Steven Covey, known for his “Seven Habits” series of materials, Seven Habits of Effective People. In one of his presentations he stresses the importance of knowing the difference between “doing the thing right”, and “ doing the right thing”. Now, Mr. Shively even said they are trying to “do things right”. Which, you know, trying to meet some of the construction things to meet the codes, albeit some of it very minimal. They are trying to “do the thing right”. But to illustrate the difference Mr. Covey uses a medical example. Modern physicians have many tools in their arsenal to treat ailments. We don’t go to a physician because she has nice handwriting on the prescriptions that she writes. We go to her because she knows what drug to prescribe. She needs to know what to do, and also how to correctly do it. “Doing the thing right”, and “doing the right thing”. Medieval physicians used a technique called “blood letting” to try to treat certain conditions. However, a doctor no matter how judicious and precise in doing a “blood letting” would not do their patient any good. In fact, many patients died as a result of the procedure. “Doing the thing right”, in Mr. Covey’s example a perfectly designed and executed “blood letting”, is not the same as “doing the right thing”. By meeting applicable building codes, meeting some of the adjoining property owners construction concerns, and even going so far as to offer some property owners $5,000 if this zoning is approved, this development team may be attempting to “do the thing right”. But, rezoning this property for this 1,000 bedroom complex would not be “doing the right thing”. We respectfully request that you do the right thing, help us maintain the character and values of our neighborhood and deny this rezoning request. Thank you.

President Musgrave: Are there any questions? Thank you, sir.

Jim Claybourn: No questions? Thank you.

President Musgrave: Appreciate it. Are there any other speakers? Yes, Ma’am. Please state your name for the record and your address.

Donna Decker: My name is Donna Decker, and I reside at 8300 Middle Mt. Vernon Road. This proposed rezoning has already had a negative impact or effect on (inaudible) rights of individual property owners to use, enjoy, and even sell his or her property. My mother has already lost a sale of her home because of this rezoning petition, just the petition. On July 24^th she put her house at 8300 Middle Mt. Vernon Road on the market. On July 26^th she received a deposit for the house. On July 31^st, after the potential buyer learned of the rezoning petition and the possibility of apartments being built, he cancelled the sale. She has had very few inquiries since this deposit was made, and since this proposal was made public. How will this proposal influence property values and the ability of homeowners, the current homeowners, to sell homes in the surrounding neighborhoods?. It’s already affected us negatively, and this is something that we’ve had on the plans since March. I too urge you to vote against this proposal. Thank you.

President Musgrave: Thank you. Any questions? Are there any other remonstrators? I see approaching Mr. Fred Padget.

Fred Padget: I’m Fred Padget, and I represent the Westside Improvement Association. I don’t know if it’s appropriate, but before we start I, number one would like to compliment all of the first responders and the other agencies and groups involved with the recovery effort and rescue effort out with the tornado a week or so ago. I would also like to compliment the Commissioners for the action taken yesterday, which I thought was quite innovative and should be very beneficial to the people that were involved in the devastation out there. So, we thank you for that. The last time I spoke before this body, if I remember correctly, was June 7^th this past summer. We were also discussing student housing at that time. We appreciate the Commissioners listening to our comments about this proposed project tonight. There are some who frequently comment that the Westside Improvement Association is against everything. I do have about a half hour speech about all that we do support, but we’ll save that for another day. Though we often have concerns about projects, it may interest you to know that in my four years as president of Westside Improvement Association, we’ve remonstrated against rezoning a total of three times, and we’ve spoken in support of rezoning many times. We completely agree and support what you have heard tonight in opposition to this project. One of the things Mr. Shively, the developers attorney, talked about the Dave Matthews information as dealing with vacancy rates for apartments, and he looked at only the west side. We feel that maybe in talking with people we know that a lot of the students live in places other than just the west side, and it may be appropriate to look at vacancy rates for a larger area. In the Dave Matthews study for 1999 he had a 4.1 vacancy rate for apartments. In 2001 it was 6.1 vacancy. In 2002 the vacancy rate was 8.7, and in 2005 the vacancy rate is greater than 10 percent, and that figure does not account for roughly 1,300 units that are proposed to be built in 2005. We’ve talked a little bit, or you’ve heard a little bit about USI and the possibility of them, or their philosophy of building residences for their students as they expand. The USI campus occupies 330 acres donated by Southern Indiana Higher Education. That’s a non-profit foundation who holds more than 1,000 additional acres for future expansion. A recent article in the Courier Press indicates future plans for USI include building additional residence halls as needed. The Courier article indicated that USI felt that by doing this it would not be an unwieldy sprawl, but rather an efficient use of existing space. Dr. Hoops had sent Area Planning Commission a letter dated October 10^th, and I would like to quote a couple of things out of that letter. This is Dr. Hoops quote:

“I believe there’s a need to clarify the university’s future plans for developing on campus student housing. The university has taken a conservative approach to the development of student housing, and has constructed additional housing as enrollment has increased on an “as needed” basis. In 1996 the university developed a ten year housing plan for 1996 through 2005. It was predicted that a total of 2,716 beds would be needed in 2005 to accommodate the growth in student enrollment. The university currently has available 3,044 beds.”

Further in that same letter he goes on:

“At presently projected growth levels we believe that sufficient housing exists to meet student needs. Additional construction at the present time might be harmful to the USI housing program, and might subject commercial housing to a non-acceptable risk or failure. USI has attempted to be a reasonable neighbor to westside residents. We have purchased adjacent housing within a given cost range to prevent it’s turning to student housing of a non-desirable nature. It is important that over built commercial housing does not have an outcome similar to the one we attempt to avoid.”

Further in the letter:

“An additional point of consideration for the requested rezoning is the increased traffic and potential concerns for safety at the entrance to the university’s campus. With the completion of University Parkway, there will be additional traffic on the overpass. Rezoning of the proposed area for a higher density use would create additional traffic and safety concerns.”

As I understand it, the Commission was hand carried a letter dated, I think, November 14^th from USI to reaffirm this letter of October 10^th. At this point, I know you’ve received my letter of a few days ago, and some other recent information. It may have been more than you wanted. But, at this point I would like to emphasize a few of the points contained in that information, and especially pertaining to some of the policies, objectives, and criteria set out by the current comprehensive plan in regard to evaluating rezoning decisions. I do this because the Indiana Code outlines some very detailed criteria to be considered when making rezoning decisions, and our comprehensive plan follows the Indiana Code very closely in that regard. As you know, our comprehensive plan is adopted by resolution by the Vanderburgh County Commissioners, as well as the City of Evansville and the Town of Darmstadt. The resolution states:

“The comprehensive plan reflects the vision and desires of the citizens, the APC, and elected officials on the future development of our community.”

The plan’s intention is to guide growth in a manner that supports and reinforces the community qualities important to city and county residents. A summary of the plan goals include; arranging land uses to create a pattern of orderly development, and to value neighborhoods. The plan’s objective is to preserve the character and aesthetics of the neighborhood environment. In residential neighborhoods, exclude incompatible uses that would alter the character of the area. As part of that process the plan outlines the advantages of a neighborhood planning and development program to include emphasis that neighborhoods are an integral part of the quality of life of the city and county, and to provide an opportunity for involvement by neighborhood residents, and allowing residents who best know their area to identify their neighborhood’s improvement needs and the actions required in solving those needs. Section 20 of the comprehensive plan goes into great depth to outline how zoning proposals should be evaluated and the criteria that should go into any rezoning request. It states that the following criteria should be used to evaluate proposals. Suitability of property for the uses allowed under the current zoning ordinance. Existing zoning and uses of surrounding properties. Existing and future character of the adjacent area. The type and extent of positive and/or detrimental impacts to adjacent properties or the community at large. The impact of proposal on public services, utilities, and facilities. Benefits to the public health, safety and welfare compared to any hardship imposed. Relative conformance of the proposal to the land use plan and the goals, objectives, and policies, and consideration of responsible development and growth, as well as any other relevant information. To assure conformity between zoning regulations and the comprehensive plan, while providing for an orderly and responsible sequence of development, the following principles should be employed; zonings should be used to guide development activities into appropriate locations and to enforce development or redevelopment standards in accordance with the plan, and zoning districts should be designated and administered in such a way that protection is given to the existing and future use areas from encroachment by uses inconsistent with the plan. Significantly, the Indiana Supreme Court heart a recent case, and a decision was handed down on January 5, 2005, Chief Justice Randall Shepard wrote the majority decision. In his decision he states that:

“Zoning bodies must also consider current structures and uses in each district, the most desirable use of the land, property values and responsible growth and development.”

In the same decision, Chief Justice Shepard goes on to state that:

“A comprehensive plan is a community’s long range vision for physical development, but implementing the plan as regards a given piece of real estate may not be the best course of action for the community on a given day. “

We can find no more powerful statement of why this proposal should be denied. This proposal does have numerous issues, as pointed out earlier, in earlier testimony that are not in harmony with the above criteria and methods. It does not fit with the current conditions and character of the neighborhood. There will be devaluation of property values. We’ve already seen some of that. Expression of the near neighbor’s desires through petitions, involvement in the many letters you and the APC received, clearly indicate the project is not wanted in that location. It is not the most desirable use. There are serious traffic and safety issues. It is not responsible growth and development. Additionally, the courts have generally held that property owners are not necessarily entitled to the highest and best use of the property, but only to a reasonable use. Based on the abundance of negative aspects inherent with this project, the expression of considerable neighborhood concern and objection, the failure of this proposed project to meet most if not all the appropriate criteria for a rezoning as contained in the current comprehensive plan, supported by the Indiana Code and various court rulings, we respectfully ask you this evening to vote no on the petition to rezone 8530 Middle Mt. Vernon Road. Thank you. If there’s any questions, I’ll certainly try to answer them.

President Musgrave: I received by e-mail this 12 page document, along with some photographs, is it your desire to enter this into the record?

Fred Padget: Yes, it is.

President Musgrave: Okay. Do you have questions? You referenced a letter that Dr. Hoops sent, and I would like to enter it into the record as well.

Fred Padget: Yes.

President Musgrave: It’s dated November 14^th.

Fred Padget: Okay, that’s the one that, I have not seen that one. The October 10^th I did, but, yes.

President Musgrave: Would you like me to read it?

Fred Padget: No, not really. If you would like to, you’re welcome to.

Commissioner Nix: It’s this same letter?

President Musgrave: I would like to read a couple of parts that I’ve highlighted.

“Additional construction at the present time might be harmful to the USI housing program. USI will welcome commercial partners if our enrollment growth warrants it, but it seems counterproductive at this time. Rezoning of the proposed area for a higher density use would create additional traffic and safety concerns.”

I will go ahead and put this in the record as well.

Fred Padget: We appreciate that.

President Musgrave: Have, and this question may be more for Mr. Shively.

Fred Padget: Okay.

President Musgrave: Have you received any promises, or have you made any promises regarding lease restrictions, a club house, any outdoor recreation areas?

Les Shively: I’m sorry, I did not hear your question.

President Musgrave: Are there any lease restrictions that you’re proposing at this time? Will there be a club house or any outdoor recreational areas?

Les Shively: There’s no club house, no outdoor recreation or lease restrictions. And the parents of the students are required to sign off on the leases as well.

President Musgrave: Is there a possibility that student housing would not be built, but other R-3 acceptable units would be built?

Les Shively: The plan right now is to do student housing. If it turned out that it’s not feasible to do student housing, then the developer would have to go through, effectively go back through the rezoning process, because you would have to remove parts of the use and development commitment, or change it that pertain to the student housing aspects.

President Musgrave: Has USI endorsed your plan? The letter seems to indicate that they have not.

Les Shively: No, they have not.

President Musgrave: Okay.

Les Shively: And we never have indicated that they have. I would note that Dr. Hoops did note in his October 10^th letter that he did not oppose Eagle Village.

President Musgrave: Are there any other questions? Are there any other remonstrators?

Commissioner Shetler: Actually, I don’t have a question of Mr. Shively, but I do of Mr. Mills. Being the new kid on the block here, I guess, I can say kid, grandfather, I don’t know if I can. The new guy on the block here. Just some questions about what’s the categories and stuff on zonings. On an R-3, I guess there’s no distinction between, we don’t have any differences between student housing and other kinds of high density type of multi-family dwellings and stuff?

Brad Mills: Currently the ordinances don’t distinguish the student housing as an apartment separate than what our current apartments are.

Commissioner Shetler: Like in a restaurant that’s serving like alcohol, and I’m thinking in terms of like Biaggi’s or Bone Fish, you know, it’s kind of an upscale type of restaurant like that versus like a strip bar, is there, will we distinguish between that in the zoning codes?

Brad Mills: There are different, there are adult uses versus a standard or a restaurant use. Yes, there are differences.

Commissioner Shetler: I’m just wondering if it wouldn’t be helpful sometime in the future that we did distinguish it in the code, and that that were developed. Because I think there’s a clear difference. My son is freshman at Xavier. I talked to him Saturday night, and he was going to a party across the street from the campus. I don’t know why. I don’t have the slightest idea why he might have been going across the street to a party, but it seems as if every time I call, he’s going across the street. So, I’m just wondering if that’s something we should look at in the future, you know, because there are sometimes things that go on like that that, you know, maybe would fit better in to some neighborhoods than they would others. Or certain areas that, you know, of the county and stuff than they would others. Just the point that I was thinking about there, but right now we, it all fits into the same category?

Brad Mills: Correct. We do have a separate classification for fraternities and sororities, but as far as just a separate stand alone student housing, no, we do not have anything.

Commissioner Nix: Excuse me, just one question quickly. We did do something recently with the parking, didn’t we?

Brad Mills: We are currently, at the Area Plan Commission, looking at a modification to the parking to require one parking space per bedroom for student housing. However, that has not been passed by the Area Plan on to the Commissioners at this time.

Commissioner Shetler: Because that’s kind of fitting in mind with what I was thinking, and that is if this were approved and at some later point in time it would go to site review, what kind of authority do they have to, you know, like for example if the parking requirement, what was the ratio used, 2.53?

Brad Mills: 2.33. It takes two per unit, plus one visitor for every three units.

Commissioner Shetler: Alright, so if you’ve got that ratio, but yet you’ve got four bedroom apartments, it seems to be, and, believe me, even the high school kids are pretty much one for one anymore, vehicle versus student, I would think that in this particular kind of housing, that’s why I think we ought to distinguish between the two as well, that you’re going to get up close to that.

Brad Mills: Yes, that’s what we’re attempting to do.

Commissioner Shetler: Right. But, at this present time, that would not go into effect. So, that if this were approved today, I’m assuming that that would fall underneath the guidelines, the site plan would fall underneath the plans of how it was approved at the time.

Brad Mills: No, it would apply at the time the applicant submits his plans for site review and subdivision review. It goes through both of those. So, we would review those plans at the time that he submits them. So, if what I understand they are going to delay and wait some period of time before they move forward with the project, then it’s possible that we would have the opportunity to make some amendments to our ordinance prior to that.

Commissioner Shetler: So, he’s not grand fathered?

Brad Mills: Not at this time.

Commissioner Shetler: Okay. Thank you.

President Musgrave: Just to make certain I understand it. The verbal assertions, promises that he’s made today would have no effect unless we sent this back to Area Plan to have the use and development commitment revised?

Brad Mills: In regard to the items he referred to in the use and development, yes, it would require it to come back to Area Plan, and then come back to you again.

President Musgrave: Thank you. Sum up?

Les Shively: Yes, thank you. If I could just, I’ll pick up on the parking issue that was discussed, and I’m surprised that when Mr. Padget was reviewing recent Indiana Supreme Court cases he didn’t talk about the Pinnacle Media Case which is right on point which says, basically, in effect, the development standards then in effect when you apply for your permit to build are those that control. Not when you got rezoned or whatever. So, Mr. Mills is exactly right, and since this project is a long way off, if the zoning code is changed, the development standards are changed with a different type of formula for parking, that’s what controls, not what’s in effect right now. I know you’ve been here a long time, and I’m going to be brief, but I do think there’s some important issues here. One thing I want you to keep in mind, you’ve heard from a lot of people, you’ve seen a lot of pins on a board here, and I don’t want to argue whether it’s people way out to the northwest are going to be affected by that, but I will say this to you, there’s 170,000 people in Vanderburgh County, and this is not just about my client and the people in this room, or the people that were here at the Plan Commission meeting. It’s about what’s good for Vanderburgh County and those 170,000 people. I wanted to compliment the remonstrators, it was, I thought that the discussion today was focused on land use, but a few things I felt were a little in error and I want to respond to them. Most of all, I’m taken a little bit aback by the comments about our meetings. We had a meeting back in August, five minutes into the meeting several of those assembled said they were against anything other than single family. They were against any kind of multi-family, be it condos, be it conventional apartments, be it student housing. Now, ladies and gentlemen, I’m just going to tell you right now, you can look at this picture, but the most glaring and graphic photographs of what’s going to happen, what’s going to drive that is those photographs in that handout I gave you this evening. Those were taken today. That’s going to be multi-family or commercial. That’s what it’s going to be, and don’t take it the wrong way, but the public projects that have been developed along this area, which include the Lloyd Expressway, Eickhoff exit, the exit was done during the Borries administration, Tuley administration, the University Parkway project, and the growth of the university, those are the factors that drive this. That’s why your comprehensive plan, when it was just recently approved, made that observation. The issue is appropriate land use. Now, something else you need to keep in mind, there’s a landowner just to the west and to the north along University Parkway that has I don’t know how many thousands of feet of frontage this landowner has, but several acres, maybe close to 40 acres that has been given a direct cut on University Parkway. My experience would tell me you’re not going to see that developed as a residential subdivision. You’re going to see some sort of commercial type of development. Now, we can talk about vacancy rates, the fact of the matter is, I represent one of the largest, multi-family developers and managers south of Indianapolis, the Neville family; Mission Viejo, Copper Creek, Sugar Mill Apartments, Bryce De Moray, everyone of their facilities that are of the west or east side of Evansville are at 95 percent or better capacity. They talked about Golden Towers, do you know why the university got rid of that? Do you know where Golden Towers is? I’m sure you do. Westsiders know where it is, it’s on Red Bank Road. You can’t even see Red Bank Road on that aerial photograph. That’s why it didn’t work. That’s why Eagle Village is working, and that’s because students want to live near the university. The fact of the matter is, the letter from the university of October tenth and the letter dated yesterday, we don’t disagree with. We will have to do the feasibility study. We’re going to have to establish that there is demand for the student housing. We believe that it’s prudent to buy this land at this point in time, do the feasibility study and do this right and take the time to do it, because this comprehensive plan of the university, that was at least the version of it that I saw in the Courier, shows a projected student enrollment of 18,000 students. Yet, that same plan showed one dormitory to be built. I doubt 8,000 students are going to go in one dorm. The first night we met also, one of the residents there who I believe lives just east of the subject property in the residential area there said I’m already having problems with students. I said, what do you mean you’re already having problems? We’re not even there yet. We haven’t even had our first public hearing. She says, well, one of the homes in our neighborhood is rented out to students. You talk about your gap in your zoning ordinance, a person can own a single family residence, lease it to four or five students, it doesn’t have to be zoned R-2, R-3, R-4 or anything and put them in there, and she was complaining about the noise and the problems. Isn’t it better to have them in a facility that designed for students, as opposed to having them right there in the neighborhood. To the lady who said her mother lost a sale, I would think, basically, it could be probably an effect of what’s already there, not something that might be there three or four years down the road. As we noted, parking—

(Tape change)

–criteria will be that criteria that’s then in effect at the time that we go to site review, not what’s presently there. I suspect that we’re going to have a different parking criteria by that particular point in time. Mr. Padget mentioned a Supreme Court case that said, well, the comprehensive plan is not controlling, and in some circumstances you can disregard that. In that particular case, as most cases, they turn on the facts. In that particular case someone basically came before the Plan Commission or County Commissioners and said, we want commercial just because everybody near us is commercial. They had no plan. They had no thought. They had not approached it in a systematic way. That’s hence the decision and the opinion and the statement by Chief Justice Shepard. That’s not what you have before you this evening. This project is not going to happen until a feasibility study by a competent consulting firm says it’s necessary. We’re willing to put that in the use and development commitment, and put it in the language in such a way that Mr. Mills and his staff feels that they can monitor that, and make sure that that plan ends up in their file before we go to that first site review meeting, what have you. In addition, we will amend that development plan so that there is no cap on the infrastructure that has to be built off-site as a result of a traffic impact study. As you’ve heard from some of these residents, apparently there’s problems out there already that are going to have to be dealt with. This is an opportunity, quite frankly, for the county to move a little bit of that responsibility from the public sector to the private sector. Again, let’s look at the total big picture here, and the 170,000 people that you serve, is this a good project? Is it good for the community? Yes, it is, and it meets the criteria, and you have, we will have, if this goes back to the Plan Commission, if the use and development commitment is amended, this will be unlike any rezoning I’ve ever been involved with. It will have more checks and balances associated with it than I’ve ever seen, and rightly so. And rightly so. To see that it’s done correctly, and done in keeping not only with the spirit, but the letter of what that commitment says, that runs with the land, is binding upon all future owners of this property, whoever they may be. Again, under the circumstances of the weather and such and the heat in this room we appreciate your patience. Again, I also appreciate the patience and the civility of the folks that are in opposition to this this evening. We ask for you to take the appropriate action. Again, we are certainly amenable to sending it back for those amendments as we’ve outlined. Thank you very much.

President Musgrave: Any further discussion? Is there a motion?

Commissioner Nix: I move we deny docket number 2005-29-PC VC-9-2005, rezoning R-1 to R-3.

Commissioner Shetler: So moved.

Commissioner Nix: Second.

President Musgrave: Any discussion? Hearing none, I’ll cal for the vote. All those in favor?

All Commissioners: Aye.

President Musgrave: Does that require a roll call vote? Commissioner Shetler?

Commissioner Shetler: I would like to say that I think that looking at the 170,000 people, the university, we’ve got a huge investment as a community and as a state in that university, and I think there’s some real concerns that they have on this project and others. So, that’s the reason why I’m voting in opposition to this. So, voting yes for the motion.

President Musgrave: Commissioner Nix?

Commissioner Nix: Yes.

President Musgrave: And I vote yes.

(Rezoning petition VC-9-2005 was denied 3-0.)

President Musgrave: The only other item of business that we have on the agenda tonight is to approve the rezoning minutes for October 25^th of ‘05.

Commissioner Nix: So moved.

Commissioner Shetler: Second.

President Musgrave: All those in favor?

All Commissioners: Aye.

President Musgrave: I believe that concludes the business this evening. Is there a motion to adjourn?

Commissioner Nix: So moved.

Commissioner Shetler: Second.

President Musgrave: All those in favor?

All Commissioners: Aye.

(The meeting was adjourned at 5:56 p.m.)

         Those in Attendance:

         Cheryl Musgrave                      Bill Nix                            Tom Shetler, Jr.

         Brad Mills                                  Ted C. Ziemer, Jr.          Madelyn Grayson

         Les Shively                               Jim Morley, Jr.                Jim Claybourn

         Donna Decker                          Fred Padget                    Others Unidentified

         Members of Media

VANDERBURGH COUNTY

REZONING BOARD

Cheryl A.W. Musgrave, President

Bill Nix, Vice President

Tom Shetler, Jr., Member

Recorded and transcribed by Madelyn Grayson.