VANDERBURGH COUNTY

REZONING BOARD

NOVEMBER 21, 2006

The Vanderburgh County Rezoning Board met in session this 21^st day of November, 2006 at 4:25 p.m. in room 301 of the Civic Center Complex with President Cheryl Musgrave presiding.

President Musgrave: Now to the rezoning portion, and Mr. Brad Mills from Area Plan is here. Do we have rezoning minutes to approve?

Madelyn Grayson: Yes, we do. They are from October 17^th, I believe.

President Musgrave: Is there a motion to approve those?

Commissioner Nix: So moved.

President Musgrave: And, I’ll second. All those in favor?

Commissioner Nix: Aye.

President Musgrave: Aye. The motion carries.

President Musgrave: First reading on the agenda tonight, Mr. Mills?

Brad Mills: You just did minutes? Is that correct, approval? First reading tonight is docket number VC-1-2007, the petitioner is Spurling Development LLC, the address is 5103 Spring Valley Drive, and the nature of the case is a change from agricultural and C-4 zone to a C-2 zone. That was all for first readings.

Madelyn Grayson: Do you need an agenda?

President Musgrave: Yes, I do. Well, no, I have the agenda, what I don’t have is my own agenda, and I see Marissa is not here today. Alright, so, the first one on the docket is Spurling Development, correct?

Brad Mills: Yes, that was the first reading that I just–

President Musgrave: And, you need a motion to approve it on first reading, is that correct?

Brad Mills: Yes, please.

President Musgrave: Is there a motion?

Commissioner Nix: So moved.

President Musgrave: I will second. All those in favor?

Commissioner Nix: Aye.

President Musgrave: Aye. That motion carries.

President Musgrave: So, we move now to final reading, the Broadway Summit LLC, go ahead please.

Brad Mills: Alright, the final item is docket number VC-15-2006, Broadway Summit is requesting to change the zoning of their property located at 2708 North Green River Road from agricultural to C-4 with a use and development commitment. This is a 66.26 acre site located on the west side of Green River Road, between Theater Drive and Spring Valley Road. This petition was continued at last month’s meeting to allow correction and amendment of the use and development commitment. The new commitment was included with the staff field report. Evansville MPO states that access directly to Green River Road should be limited to two access points, and internal access should be provided by a frontage road. A traffic impact study is warranted by the MPO’s access management manual. It should be used to determine if any off-site improvements are warranted. County Engineer, John Stoll’s comments are, “Number one, this development must connect to and complete the frontage roads planned in the development on the north and south boundaries of this site. Number two, road improvements other than a traffic signal may be required given the size of the site. A detailed traffic study could be necessary to determine what improvements are needed.” Subdivision review committee reviewed the primary plat of Stonefield Park Subdivision, a 12 lot commercial subdivision at their meeting on September 12, 2006. The subdivision is designed to comply with the standard for commercial development, and approval of the subdivision plat was continued until the December Area Plan Commission hearing to allow approval of rezoning prior to hearing of the commercial subdivision plat. Site review committee will address compliance with all code requirements upon submission of plans for the development of the site. A portion of this site is within an area designated as commercial on the comprehensive plan future land use map. Adjacent to the south is an area of mixed commercial and high density residential proposed for development as Theater Commons Subdivision, and an apartment community. North is Mystic Creek commercial subdivision and a proposed high density residential planned unit development. Across Green River Road, east of this site, is mixed commercial and Sugar Mill Creek apartments. Adjacent west of this site is single family residential development. The Area Plan Commission on November 9^th voted a no recommendation to the County Commissioners, with six voting affirmative, one negative and one abstention. As you know, it takes seven votes to send a recommendation to the Commissioners. That’s all.

President Musgrave: Thank you. Mr. Shively, are you here to represent the petitioner? No? You are, sir? Please come forward.

Chris Wischer: Good evening. Chris Wischer, Bamberger Foreman Oswald and Hahn. I’m here on behalf of Broadway Summit. The members of Broadway Summit are Jim Vincent, who’s here with me, and Keith Hinderliter who’s not. Dave True from Landmark is here as the engineer on the project. This property, I’ll try not to repeat too much of what Mr. Mills already has said in his summary of this project. It is at 2708 Green River Road, at least that’s the address we’ve given to it, for about 66 acres of property there on Green River Road north of Theater Drive. The area is, you can see on the western boundary there’s a pretty, fairly large single family residential subdivision. To the north is Mystic Creek, which is a newly zoned, I guess, in the process of development, commercial and PUD development. To the south, on Theater Drive is a property that’s been recently zoned and is in the process of being developed to commercial and residential by Spurling Development. Then on the other side of Green River Road there’s a large apartment complex and some other commercially zoned properties. We’ve also filed a subdivision plat, which I think was overlaid on the, you have one that overlays the subdivision plat. We filed a proposed subdivision plat at the same time we filed the zoning, that has been reviewed, but is on hold and will go through the subdivision process following, assuming the, you know, under the assumption that it would be approved, then would proceed next month to the Plan Commission. But, you can see we have, I think, 12 lots of commercial development, some frontage out lots and then some larger lots on the rear of the property. Excuse me, I’m a little under the weather today, and I’m not thinking as fast as I normally do. I’m not sure how fast I think normally, but. The access to the property will be, there will be access directly to Green River Road in likely two places. There will be a frontage road, you can see running between the out lots and the larger lots, and those will access frontage roads that will be, that are proposed within the Spurling Development and the Mystic Creek development. There will be no direct access to the rear of the property, obviously, through the residential subdivision. With this zoning we are asking for a C-4 zoning classification, but we have filed a use and development commitment with that request. I would like to take a few moments to go through that use and development commitment with you. First, let me say that this is the, you’ll see that, the one you have should say amended use and development commitment. We had previously gone to the Area Plan Commission, and it was pointed out during that meeting that there was some language issues, or clarification that could be had to some of the language. So, we worked pretty diligently following that meeting. We postponed the matter and made some significant language revisions to the UDC to tighten it up. The other issue that came up at that original Plan Commission meeting was in relation to some buffers on the north and south boundary, which I’ll get to in a minute, but, as a result of those meetings we made some changes, and that’s what you have today. So, I want to make sure that you have the right one in front of you. Going through the UDC, as you know, with commercial zoning, there’s quite a few commercial uses that are allowed within a commercial C-4 zoning, and Broadway Summit has agreed in that commitment to reduce and eliminate some of what we would call the more intense border line industrial type uses, or uses that would not be generally acceptable to our residential neighbors. We are very cognizant, in putting this together, of the residential subdivision to the rear. Those folks have been there for, you know, 30 or more years, and they’re single family houses. I think there’s more than 20 that actually abut the property. So, we felt it very important to consider those when preparing this UDC. In addition, there’s some restrictions on lighting and signage. The lights will not be directed towards the residential adjoiners, and the signage will be shielded from visibility from those residential adjoiners. We’ve got some restrictions on trash, I guess, disposal and use, and where it will be stored, and dumpsters that will be properly screened architecturally. We have, we are creating a requirement for a buffer along the western boundary, again in an attempt to kind of proactively alleviate what our anticipated concerns would have been from those folks along the western boundary. You know, when you’re going to bring a high retail commercial use, it’s going to cause those folks to be rightfully concerned, and we really went out of our way, I think, to alleviate those concerns. We’ve required a 50 foot setback along that boundary, with a seven foot berm that would be landscaped, and that landscaping would have to take place within one year of construction of the berm, and a five foot opaque fence on top of that berm, the length of that property. Later on in the UDC there’s a provision for maintenance and construction of that berm and fence. What it says, and this came as a result of the original APC meeting, it makes it clear that no, none of those single lots could be utilized and constructed upon until the berm required to be constructed within that particular lot was finished. That way, there was some concern expressed that we would begin the berm at one end and go build on the other end. So, essentially, that’s going to make sure that the berm’s in place, at least for that particular lot. This will probably be developed in phases, so, it doesn’t necessarily make sense to construct the entire berm. So, this will allow that berm to be phased in as construction takes place. There’s also provisions in there for a northern and southern buffer, and if you’ll allow me, I will address that at the end of my presentation. There’s also restrictions on temporary structures and a commitment to put a traffic light in should that be deemed necessary in the site review process. So, we go through site and subdivision review, if a traffic light is deemed necessary, it would be the commitment of the petitioner to make that installation. I do want to talk again for a minute about the adjoiners on the west, because, again, when we got this petition, we were thinking through this petition, in light of some of the past issues with, an example, the Target development in the city, and other commercial developments, you know, residents, people who own their homes along those potential developments do get concerned. So, we had a meeting after we filed the petition at the Black Buggy in September, invited all of those folks, and quite a few came out. We went through the entire proposal with those folks, asked for comments, the big concern we heard in that meeting was drainage, apparently particularly on the southern end of our development there’s some real drainage issues. A lot of that probably comes with the fact that ours is farmland, and really, I think, it’s higher than those folks, so, the water really has nowhere to go but on their properties. We’ve been working with our engineers, as you know, the drainage code requires that we do nothing on our property to make their drainage situation worse than it already is, but we’re actually trying to take steps to make it better, to identify, we think the berm that we put there will have an impact on that. We, those particular residences are actually located in the city, and I understand that our client had Pat Keepes out there this week to look at the drainage situation, and we’ve been working with the county folks as well, and are hopeful that we’ll come up with something that will actually make things better than they are now. With regard to the properties to the north and the south. As I said, when we first got this zoning petition and were putting it together, our main focus was with those single family residences, again, they’ve been there 30 years. They have properties, they’re not one developer who can take, you know, collectively take care of themselves, they are 20 or more people, or 40 or more people, or even more depending on the size of the households. So, we really went out of our way, and I think as you can see, I’m not sure if any, some of those folks are here tonight, but I would be surprised if there’s any real concern, because I think we’ve talked a lot with them, we’ve met with them, and we’ve dealt with those problems. With regard to the north and south, both Mr. Spurling and Mr. Tubbs came to the original APC meeting and the second APC meeting and expressed a desire that they be treated similarly to the folks on the west. We think there’s some real distinctions, but we committed in our second use and development commitment to work with them to come up with an agreement to address their concerns on the buffer. We have, I can report to you tonight, in the hallway, worked out a, what, I guess, would call a tentative agreement, since we’ve not signed anything yet, on the buffer to the south with the Spurling folks, that would require the installation of a fence along the property line. The shared cost of the installation of that fence. So, Mr. Shively and I will put a covenant together, I suppose, here shortly after this meeting to address that issue. With regard to the property owner to the north, we’ve made a written proposal, much like we did with the Spurling’s as to what we would agree to do on the north. Mr. Tubbs initially expressed that he would agree only to, only if he was treated exactly the same as the folks in the back. We had a meeting, my understanding is my client had a meeting scheduled yesterday with Mr. Tubbs, and that meeting did not take place. So, again, our commitment requires us to negotiate in good faith for a buffer for screening on the north boundary line, as well as the south. We’ve completed that with regard to the south, and we fully intend to discuss with Mr. Tubbs. There are some other issues, as you can expect when two developers adjoin each other, in their process of developing, there are issues outside of that, and we’re talking about all of those things. In particular is where our roads are going to interconnect, and that will be addressed in the site review process, I’m sure. But, for purposes of today, I have to tell you, I’m not aware of too many places where we have required, or where there has been required particular buffers and screening between multi-family and commercial developments. I’ve seen it quite a bit with regard to single family. I’m not saying that I don’t think it’s, you know, an appropriate thing for the parties to agree on, but I think there may be some mutual costs that need to be shared with regard to that, and that’s what we’re trying to work toward. But, again, to stress, our commitment requires us to negotiate, and we intend to continue to do that with regard to the folks to the north. If there are any questions with regard to any of that, I would be happy to address those.

President Musgrave: I have no questions. Do you have any questions?

Commissioner Nix: I have none.

President Musgrave: At this point then, I will call for remonstrators. Are there any remonstrators for this petition? Mr. Shively?

Les Shively: Madam President, member of the Board of Commissioners, my name is Les Shively representing Spurling Properties. I wouldn’t necessarily put us in terms of a remonstrator, per se. Mr. Wischer outlined the agreement that we have reached, reached about 30 minutes ago, in regards to the buffering of our property and the proposed C-2 property form ours. Just for the record, Mr. Wischer, if we could get some time I’ll show you countless examples of where there’s buffering between multi-family in this community and commercial. But, be that as it may, we are pleased with the agreement we have reached, just to make sure that we’re clear here, and if I misstate this, I would like for Mr. Wischer to correct me, because we are withdrawing our remonstrance in reliance upon these representations. As you know, if a representation later turns to be false, that could be a basis within the statutory time period for this board to reconsider a rezoning that had been granted. We don’t think that’s going to happen, but we do want to make it clear that we are stepping down, so to speak, based upon those representations. Which Mr. Wischer has stated that they will, on that borderline area, we will share in the costs of an eight foot fence, which will be on the property line. It will be maintained by my clients, by Spurling. This is conditioned upon there being adequate area to go in there and do the maintenance, but I believe the ten foot setback requirements and green space requirements will provide that additional, that adequate area for those purposes. Since we do not have anything in writing today, and it’s not in the use and development commitment, we were asking that that be reduced to writing within 60 days of today’s meeting, so, we’re going to do it in the form of a private covenant. Something that would be recordable between the parties. So, that’s basically where we’re coming from, and providing that is the agreement of the parties, we would show that we would stand down in turn of any opposition based upon those representations by the petitioner. Any questions by the Commissioners?

President Musgrave: No.

Les Shively: Thank you.

President Musgrave: I do have a question for our attorney or Mr. Mills, whichever is appropriate, this private covenant is enforceable by the parties and does not involve the government except insofar as this rezoning issue stated by Mr. Shively?

Ted C. Ziemer, Jr.: That’s correct. When you say involves the government, it is actually between the parties. The only involvement of the government is that if you should approve this rezoning tonight based on that representation, then if that representation turns out not to be true, that could be cause for you to reconsider this.

President Musgrave: Just the rezoning portion of it though?

Ted C. Ziemer, Jr.: Right.

President Musgrave: Mr. Tubbs, did you care to also remonstrate?

Jack Tubbs: Jack Tubbs, Mystic Creek. I’m the developer to the north of the proposed Stonefield Park. I just want to go on record to say that I am for commercial development. I do not have a problem with the commercial development that Mr. Vincent’s proposing, welcome it to the area. My concern has been two things, it’s been buffer and it’s been inner connectivity. Going through the process before, I understand the issue of inner connectivity is a site issue, and hopefully that’s something we can work out, especially with us having our plat recorded where our easement is. My concern is still buffer. I’ve worked with Mr. Wischer before, I respect what he’s saying. I’ll acquiesce too, provided that we can work on some details on how we can buffer together, but right now what’s been proposed is not acceptable to us. What’s been proposed has been two row of pines, half on our side, half on Mr. Vincent’s side with equal sharing of costs, equal sharing of maintenance. We have 40 condos we’re going to be putting in. Each one is sale priced $170,000 to $180,000. A substantial investment on the development side, substantial investment from the individual homeowner side. Having commercial next door is going to be an amenity, but there has to be some type of a buffer. So, I’m looking forward to discussions, resolving this, and coming to conclusion here, hopefully, before the holidays start.

President Musgrave: Thank you. Right now they have a use and development commitment on record, and I’m asking you, Mr. Mills, that requires this two foot berm with the pine trees, isn’t that accurate?

Brad Mills: For the north and the south, I believe it’s just that they are going to negotiate between the two of them–

President Musgrave: Okay, that’s fine.

Brad Mills: – and they’ll resolve it, is that correct?

President Musgrave: Alright. Are there any questions?

Commissioner Nix: Mr. Shively?

Les Shively: Yes, Sir?

Commissioner Nix: I’m just curious, is this something that you think you can get done, what kind of time frame are you looking at between you and Mr. Wischer?

Les Shively: I’ve already done a rough draft today and sent it over to Chris. There’s some, I know there’s some changes that Chris will make to it, but I don’t think we’re going to need all that time, quite frankly. We want to get it done, like Mr. Tubbs said, before the holidays are over. We want to get it done, at least that soon, if not sooner. Yes, sir?

President Musgrave: Mr. Wischer, do you care to sum up?

Chris Wischer: I don’t think we’ll have any problem getting, excuse me, getting the agreement done within a reasonable amount of time. Like Les said, he’s already provided us with a draft, and we’ve, you know, worked on some changes to that here tonight. So, we’ll put something together and I’m sure, as we committed to do, we’ll get that done. Then I appreciate Mr. Tubbs’ comments, and we’ll be getting with him as well. But, in a nutshell, I mean, this is property that, you know, out on Green River Road, it’s hard to imagine zoning it anything other than something like what we’re planning to do. We would ask that you approve it.

President Musgrave: Thank you. Are there any questions?

Madelyn Grayson: Commissioner Musgrave, I did have a question. The use and development commitment, is there someone authorized to sign that present tonight? Because it’s not signed.

Chris Wischer: No, I will get that signed within the next week or so.

Madelyn Grayson: Okay.

Chris Wischer: As in the past, we, since we change them so often, you know, you don’t want to have one signed floating around that actually gets recorded. But, no, not here tonight.

President Musgrave: Is there a motion?

Commissioner Nix: I move approval.

President Musgrave: And I will second. All those in favor? Aye.

Commissioner Nix: Aye.

President Musgrave: The motion carries.

Commissioner Nix: Does that take a roll call?

Chris Wischer: Thank you.

Commissioner Nix: Roll call? Does that take a roll call?

President Musgrave: Is that a roll call?

Ted C. Ziemer, Jr.: Yes.

President Musgrave: Commissioner Nix?

Commissioner Nix: Yes.

President Musgrave: And I vote yes. Show the motion as passed. Thank you.

Madelyn Grayson: Chris, I will also need you to sign the redactment statement on the ordinance.

Commissioner Nix: Is that all the business?

President Musgrave: Yes.

Commissioner Nix: I will entertain a motion we adjourn. I will make a motion that we adjourn.

President Musgrave: You make it and I’ll second it. All those in favor? Aye.

Commissioner Nix: Aye.

President Musgrave: Thank you.

Commissioner Nix: I forgot which hat I was wearing.

(The meeting was adjourned at 4:50 p.m.)

Those in Attendance:

Cheryl Musgrave                                Bill Nix                            Brad Mills

Ted C. Ziemer, Jr.                              Madelyn Grayson           Chris Wischer

Les Shively                                         Jack Tubbs                     Others Unidentified

Members of Media

VANDERBURGH COUNTY

REZONING BOARD

Cheryl A.W. Musgrave, President

Bill Nix, Vice President

Recorded and transcribed by Madelyn Grayson.