VANDERBURGH COUNTY

REZONING MEETING

SEPTEMBER 18, 2007

The Vanderburgh County Rezoning Board met in session this 18^th day of September, 2007 during the regularly scheduled County Commission meeting in room 301 of the Civic Center Complex with President Bill Nix presiding. The rezoning portion of the meeting began at 4:20 p.m.

Janet Greenwell: Good afternoon. I’m Janet Greenwell with the Area Plan Commission.

President Nix: Good afternoon, Janet.

Commissioner Korb: Hello.

Janet Greenwell: Welcome aboard. We have one zoning for final reading tonight. It’s docket number 2007-23-PC VC-12-2007, petitioner, DPF, Inc. DPF, Inc. is requesting a change in zoning from agricultural to C-4 with a use and development commitment. It’s a 6.95 acre site located on the north side of Hogue Road. The petition was heard at the July 12, 2007 Area Plan Commission hearing, and was recommended for approval with ten yes votes. This site is immediately north and west of the northern terminus of Rosenberger Avenue. The Evansville MPO has stated that the access to this site should be limited to one shared access that lines up directly with Rosenberger Avenue approach, and has recommended that a traffic impact study be required to determine needed improvements at this intersection, including a traffic signal. The County Engineer, John Stoll, indicated through his comments to Plan Commission that the development of this site will require detailed drainage plans, since the entire site appears to be in the Carpentier Creek flood plain. It’s more recently been brought to the attention of the Area Plan Commission that, by the Building Commissioner, that approximately half of the site lies within the Carpentier Creek flood way, and that a determination of the wetlands will have to be accomplished before any tree removal, fill, or any alteration of the natural terrain commences on this site. A flood way permit from DNR and a permit or approval from the Army Corp of Engineers will be required prior to commencement of any activity on the site. The proposed C-4 abuts an area projected as commercial on the future land use map in our comprehensive plan. The lots adjacent north, south and east of commercial development. Residential development is adjacent to the west. This is a request to expand the commercial development west along the north side of Hogue Road to include this 6.95 acre site. The comprehensive plan encourages the use of landscaping and buffers when commercial abuts residential development. The zoning code requires that a minimum ten foot open and unobstructed side yard must be maintained adjacent to that residential, and requires that when a commercial lot abuts a residential lot in the same block frontage the 25 foot grass yard requirement applies to the commercial lot. A use and development commitment is included as part of this rezoning request. The commitment identifies 16 specific uses to be prohibited on this site, and prohibits billboards on this site. A copy of the use and development commitment was included with our staff report. If you have any questions, I would be glad to try to answer them.

President Nix: Questions from the board?

Commissioner Korb: Do we have any clue what’s going in there?

Janet Greenwell: Not a clue, sir.

Commissioner Korb: My concern is you go from agricultural to C-4, and C-4's a very broad brush. I mean, that gives the developer any type of ability that he wants to put anything in there. So, I have a concern about that. Number two, don’t know that it’s true, just wanted to find out, someone has told us, erroneously or not, that the developer has already gone in and started removing some trees. Do we know that to be a fact?

Janet Greenwell: I met with the Building Commission earlier today. The Building Commissioner said they received a complaint two or three weeks ago and sent an inspector out, and that they did stop Mr. David from cutting down trees that were in the flood way.

Commissioner Korb: Okay. Well, I mean, it’s kind of been an eyesore for a long time on the west side, I mean, it’s kind of our last patch of trees, I guess, but I would prefer to find out what his intentions are for that area. I realize that probably the Corp of Engineers might stop it anyway because it does sit in the flood zone. But, I would feel a lot better, especially for west siders, if we knew what his intentions were, because there is some residential, and there is some concern about that on my end.

Janet Greenwell: I, whatever is your pleasure.

Commissioner Tornatta: We do have a period of–

Janet Greenwell: It’s your final vote.

Commissioner Tornatta: –time, and Krista might want to address this, but we do have a period of time which we are still under the 90 day cap before this gets sent back to Area Plan.

Ted C. Ziemer, Jr.: One week.

Commissioner Tornatta: One week? Okay.

Krista Lockyear: If I might, Commissioners, Krista Lockyear, I’m the attorney representing DPF, Inc., and can probably fill in a lot of the gaps, and hopefully answer questions, and, maybe, Commissioner Korb, bring you up to speed, and really the rest of the Commissioners too, because we went to Plan Commission and had this discussion and then some time has passed to allow us to see what we can do to address any issues before we come to you. We’re kind of at a point where there’s not much more we can do, but let me kind of fill you in. We did file a use and development commitment with this, but your initial question, what is the plan for this property? We don’t have an end user for the property at this point. We did do the use and development commitment after talking to Mike Lockard with the Westside Improvement Association about what are the big concerns Westside Improvement Association would have on this property, and most of that stems from its proximity to Carpentier Creek. So, we have limited what Westside Improvement kind of uses the environmentally sensitive type of uses that would be in the C-4. No pest control, no battery type plants, automobile related things that could adversely affect Carpentier Creek in an environmental way.

Commissioner Korb: Does that include–

Ted C. Ziemer, Jr.: No dry cleaning plant.

Commissioner Korb: –yeah, and that includes gas stations, I guess?

Krista Lockyear: I don’t have it in front of me. The other things that we did indicate could not go on this property were businesses that we felt would compete in a direct manner with new businesses that have moved into the area, most specifically Bob’s Gym. We want to be a good neighbor, don’t want to do anything that could hinder or bother their business. So, we come forward, we don’t have a particular use for the property, and here’s one of the big keys, this land is going to be difficult to develop. We have flood way issues, which means that buildings can’t go in a flood way, unless DNR comes in and gives us approval to do so. Flood plain, there has to be fill to get it up, but with the close proximity with the flood way, that’s also sensitive, and DNR and our County Surveyor are going to watch that very closely. That really, when you take a step back, although it makes this property difficult to develop, it’s a lot more eyes watching this development of the property, because we can’t go forward without the DNR permits. With the wetland issue, there may be wetlands on this property, if DNR and the Indiana Department of Enviromental Management determine that there are wetlands, of course, we cannot develop that wetlands area. We’re talking about a roughly six and a half acre parcel. Looks, from the 2003 maps that Morley generated, that perhaps half of it is in flood way. So, we’re only talking about the ability to develop maybe half of this property. When we came forward, and knowing that, you know, in our county we try to get specific with the uses, my client and I met and they went to the engineers first and said, look we need to come up with drainage plans, site plans, tell us how much land we can use here and where it’s going to have to be located so that we can market to an end user. The cost of doing that is pretty significant. If this property cannot be developed as commercial property, probably it is kind of cost prohibitive to develop it at all. So, that’s why we kind of regrouped and said, let’s go ahead, let’s put the best zoning, commercial zoning forward we can, with the use and development commitment, keeping in mind that, again, this is designated for commercial development in the comprehensive plan, we don’t have any neighbors that are concerned with us using this as commercial development, and Westside Improvement Association, even in the minutes and in my discussions with Mr. Padget and Mr. Lockard have said, we agree, from a land use point of view, commercial is appropriate for this property. The reason for the time is let’s take a step back and see can we get any further with the permitting without spending a whole lot of money? The answer is, no. We’re just at a point where to get with DNR, that’s the next step, and it’s going to cost a bit and we want to make sure we can do that with commercial development. So, I would like to just, again, remind you this is a land use decision. Everything else we do on this property will require a permit of one kind or another. Access to Hogue Road will have to be approved by site review. The flooding and drainage issues, of course, will be reviewed by County Surveyor and a drainage plan approved. Flood way, any fill issues have to be permitted by DNR, and wetland issues have to be permitted by DNR. So, commercial land use, sure. There are still a lot of hurdles to get through, but there’s no sense in even getting on the track until we’re sure that we can go forward with commercial. So, that’s why we ask for your approval to move forward with the commercial zoning. We got a positive recommendation from Area Plan Commission. I think they recognize where we’re at. We’ve done everything else we could in the meantime, and now we would ask for your approval.

President Nix: Thank you.

Commissioner Korb: Fred, have you got a comment on this?

Fred Padget: Oh, yes.

Commissioner Korb: Okay. I’m shocked that you do, but that’s okay.

Fred Padget: Mr. President, Commissioners, I’m Fred Padget, I represent the Westside Improvement Association. We do have some comments. Mike Lockard, chair of the Westside Improvement Association Land Use Committee and I did meet with the petitioner’s attorney the other day, along with many phone conversations to try to work out some assurances as to our concerns, which are, basically, the primary traffic at the intersection of Hogue and Rosenberger; the ingress/egress, and where that works or how that works out; excel/decel lanes; additional right-of-way possibly may be required to make Hogue wide enough to handle an excel/decel; we have drainage issues; flooding at Hogue and Rosenberger intersection is a concern; the condition of Carpentier Creek on the north and west side of the property we have a concern; and along with the small bridge that allows Carpentier Creek to go under Hogue Road, just a little bit west of the, east of the property. The petitioner did not attend that meeting, nor have we met with him. Based on John Stoll’s comment in the Area Plan Commission staff report, this total area up here is to be in the flood plain, and this is the first I’ve heard that there was some flood way through there. We thought maybe there was, but we hadn’t heard that definitively. I know site review will look at this closely and will be required, they will be required to have a drainage plan, if it’s approved. Even so, it is always a concern when construction takes place on the flood plain. Ever since Bob’s Gym was built, and maybe before, flooding at the intersection of Rosenberger and Hogue was a problem. The reconstruction of Carpentier Creek on the Kohl’s side that went along with the Kohl’s construction, did help considerably, but, at least in our opinion, did not totally solve the problem. We certainly don’t want to worsen this problem because of the proposed development, and maybe the proposed development could be encouraged to help eliminate the remaining problem. If Carpentier Creek is to take on more drainage from this property, is it capable of handling it? We have a question about the condition of the creek north of Hogue Road, as well as the small bridge across Hogue that I’d mentioned previously. Additionally, the creek handles drainage from the east around Vanness Street, Dane Avenue, and that area. They currently have some problems. They had some issues with the Drainage Board maybe a year ago, we don’t want to see that problem worsened. The other concern about flood control is that often the solution is retention ponds or something of that nature. Since the plan’s not far enough along, we don’t know how the drainage is going to be handled, but, for the most part, I think retention ponds are an attractive nuisance, but, more important is maintenance of the retention ponds. I’ve not been able to find an agency that has inspection powers after construction of retention ponds on private property. Even if they do, do they have work force to handle it? If a retention pond is not properly maintained, it doesn’t perform adequately, of course. Whatever drainage plan is approved, it should include provisions for some landscaping to keep some of the mature trees. It would be great, if there is a wetlands there, to make it into kind of a riparian habitat. We also have concerns about ingress/egress to the property. Hogue Road curves near the west of the property and is a heavily traveled two lane road. The staff report recommends a traffic study, but, so often a traffic study is done indicating a certain traffic pattern, but, subsequently the traffic increases. Provisions should be made that the developer is responsible for some portion of the cost, if improvements, such as a light or a road widening is required in the future because of a cumulative effect of development. What I’m really talking there is an incremental participation in whatever the cost is. Excel/decel lanes would seem to be required, and if it was at all possible, it would be ideal to have the entrance aligned across from Rosenberger, at the intersection there with Hogue. Maybe the major concern is the quality of the proposed development. This developer owned property on the south side of the Lloyd, across from Dorothy Drive. It was used as a landfill for many years, contaminating Carpentier Creek, and as I understand, had unresolved violations with either DNR or IDEM for at least 12 years or more. The developer either never reacted, or apparently was not inclined to resolve those violations. The violations were finally lifted when Dennis Owens took control of the property and did the remedial work. Based on these actions, and to the best of my knowledge, the inexperience of the developer doing this type project, I’m very concerned about what quality of development would take place. Does past practice predict future actions? This area is surrounded by commercial, manufacturing, agricultural zoning, and all this considered, the proposed zoning is probably appropriate to the area. Though it’s more of a business decision, we already have vacancies in the area, especially in the University Shopping Center. Without a preliminary plan, it’s difficult to judge if the rezoning request is on a sound basis, and if it will be in the best interest of long term development in that area. Having said all that, we do wish we had some assurances about our concerns, but we do have faith in the Drainage Board, we have faith in site review, and the other agencies that will be involved to assure proper development, particularly if it’s wetlands there will be a lot of oversight. We also have many neighbors who will for sure help watch over the project, if approved. Based on that, we do not oppose the project. So, thank you. If there’s any questions, I’ll gladly try to answer them.

Commissioner Korb: Sounds to me like there’s a lot of “what if’s” there. Your meeting with Krista, were you comfortable?

Fred Padget: Pardon?

Commissioner Korb: Were you comfortable in terms of you felt like you were being told the truth? Again, west sider–

Fred Padget: Our contacts have been primarily with the petitioner’s attorney, and we’ve dealt with her on many occasions, and we have a high regard for her and her integrity and we believe we were being told, as best they could, what they felt was the situation right now. It’s like a catch 22–

Commissioner Korb: Sure.

Fred Padget: –we don’t know anything about the plan, and from their side of it they don’t want to do any more of the plan, because of the cost, unless they have some assurance that they can go forward with the project. So, it’s–

Commissioner Korb: But, initially, what you’re saying is C-4 you’re comfortable with that?

Fred Padget: The C-4 doesn’t bother us with the use and development eliminating the businesses. A C-4 has roughly 174 type businesses it can have.

Commissioner Korb: Right.

Fred Padget: They are eliminating I think 16 or so of the most onerous.

Commissioner Korb: I just don’t want to see another Eagle Valley.

Fred Padget: I agree with you.

Commissioner Korb: Because we’re going to have some kid get killed out there because the developer just flat out came in and fibbed to us.

Fred Padget: Well, as you well know, we feel like we were slightly misled on Eagle Valley.

Commissioner Korb: Slightly?

Fred Padget: Or Eagle Village. There was another proposed rezoning for some student housing that we did object to and fought strenuously against. I agree with you, I think Eagle Village is poorly devised.

Commissioner Korb: Krista, can you come back to the microphone? Fred, would you just stay there, if you would. You know, you’ve gotten a pretty high recommendation there from a tough old boot, which is great. How can you work with the Westside folks to, I mean, I’m assuming Jerry is going to put something in there either business related or something to lease. Just guessing. Oh, yes?

Dennis Owens: Can I (Inaudible. Not at mic.)

Commissioner Korb: Absolutely. Are you Jerry David?

Dennis Owens: No, I’m Dennis Owens.

Commissioner Korb: Hi, Dennis.

Dennis Owens: How are you? Welcome.

Commissioner Korb: Thank you.

Dennis Owens: I’ve been up here many times to you guys. I developed Carpentier Creek.

Commissioner Korb: Okay.

Dennis Owens: I’ve worked with Fred, and when this first came up I went to Fred and told him that Jerry, what he wanted to do.

Commissioner Korb: Okay.

Dennis Owens: There’s about six acres over there, and I do have most of the hydraulic work, and I know what it’s going to take to get that done. It’s going to be expensive, depending on how much Jerry wants to save. Now, I’ve talked to him and I think their main thing is that they would like to do actually is put an office building over there, which I think he’s talked to Fred about an office building over there. Him and I have talked about that, and that’s basically for their concrete plant. He, and move their, a few storage buildings over there.

Commissioner Korb: Okay.

Dennis Owens: And, that’s basically, I’m of the opinion guys, and I think I probably know as much about this thing as anybody around, about what can be done over there, and I’m of the opinion that if he gets four acres out of it, he’s going to be doing good. Because, and they do own ten acres in the back of there, so, retention ponds and everything that Fred and I talked about, and if you can tell Fred, or ask Fred, I’m the one that talked to him and Mike about this thing, about the county donating that ground over there, because that road is going to have to be widened sooner or later anyway. They need to get access in there. They need to have decel lanes, just like they say, and that’s what needs to be done. So, that’s not an issue. He’s going to have to do that to get that done.

Commissioner Korb: He being Jerry?

Dennis Owens: Him, being Jerry David.

Commissioner Korb: Okay.

Dennis Owens: And, I’m the one that advised him to, you know, try to get you guys to go along with this and approve the rezoning, so he don’t have to spend a ton of money. That’s, it’s really going to be expensive to get that, the study done.

Commissioner Korb: Uh-huh.

Dennis Owens: But, it might not be. It may depend on how much he’s willing to give up–

Commissioner Korb: Uh-huh.

Dennis Owens: –and what he has to do here to get it done. So, but, it can be done, believe me, I know. He will do whatever, and, you know, Krista she don’t fool around. She’s well respected by all of you, and I know that. I’ve copycatted a bunch of her things that Westside Improvement puts in these things whenever you agree to this. So, I know that she knows what she’s doing, and Fred is willing to work with her. I think that you would be safe in letting Jerry do this, because it’s a good project for him. If you’ve got any other questions about the technical parts of it, I think I can answer them. When I can’t, I think Bill Jeffers is here. Is he still here? Yeah, he can answer about anything about this thing, because I’ve been working with him on this thing for three or four years.

Commissioner Korb: Okay.

Dennis Owens: And John Stoll too. All he wants to do is get the thing rezoned, and then let you guys, the site and everything else will take care of itself. If he can’t meet the criteria, it will never happen.

Commissioner Korb: Krista, are you comfortable that your client will work closely with Mr. Padget?

Krista Lockyear: Jerry?

Commissioner Korb: And the Association?

Jerry David: I’m sorry?

Krista Lockyear: Will you come up here?

Jerry David: Thank you.

Commissioner Korb: Sure.

Jerry David: I’ve got two artificial knees, and neither one of them work. Yes?

Krista Lockyear: They would like an assurance that you would work with Westside Improvement Association as you develop.

Jerry David: Yeah.

Krista Lockyear: Okay.

President Nix: Please state your name for the record.

Jerry David: I’ll work with anybody.

President Nix: Mr. David?

Jerry David: To me it’s therapy.

Commissioner Korb: Jerry, we need to have you say your name and–

Jerry David: Jerry David.

Commissioner Korb: There you go.

Jerry David: I live down in the river bottoms out on Shore Road.

Commissioner Korb: Sure.

Jerry David: I bought this property recently. I own, I did own the blacktop plant next door. I sold that to my kids.

Commissioner Korb: Okay.

Jerry David: We’ll probably use that also as parking area for them.

Commissioner Korb: Okay.

Jerry David: Of course, my daughter wants a three story building for an office too, but, I mean, that’s out of the question.

Commissioner Korb: Kids, I tell ya.

Jerry David: Whatever we have to do will be done.

Commissioner Korb: Okay, okay. I appreciate that.

President Nix: Is there any other public comment?

Jerry David: I’m sorry?

Commissioner Korb: Uh-oh, here comes Mr. Jeffers.

Bill Jeffers: Good afternoon. I wish I had written down several things other people had said so I would cover everything, but that’s probably unnecessary anyway. Earlier in your staff meeting I made a comment that the flood way issue had been brought up during the Area Plan Commission hearing of this petition, and that was an incorrect statement on my part. I checked the minutes, the lady who keeps the minutes for the Area Plan Commission is extremely accurate and keeps them verbatim and prints them, and publishes the verbatim minutes, and it was not brought up. I did not bring it up. I thought I had. I checked my, went back to my office and checked my notes and found that I had brought it up to Mr. Owen at one of our casual meetings, you know, just an office meeting to discuss some aspects of this development and the one across the street called Carpentier Creek Pavilion. That’s when that issue was discussed. I wish, and I don’t know, does this picture expand out? Okay, so, you can see the location, there was a pointer up here at one time. Caddy corner from your....that’s the location that the petitioner owns, and then caddy corner is the Carpentier Creek development that houses Kohl’s department store currently. The old creek, or the creek bed runs down through here, through Mr. David’s current asphalt batch plant, and then it used to run through the Carpentier Creek property where that green area is. That channel has been moved over here, as everyone knows. So, Mr. Owen is correct when he says anything can be done. When he went and brought that property, I told him there was no way that the Corp of Engineers and DNR would ever allow for that new channel to replace the flood way. That was my opinion. Bob’s Gym is totally, if you would go to the flood way diagram you have. Bob’s Gym, as you can see, is 100 percent in the flood way. That is all flood way, according to this map, the 1981 flood way. I told Andy Easley when he went to build Bob’s Gym, or design it for the fella, there was no way that DNR and the Corp of Engineers would ever allow that to be built in that flood way, and it’s built there. Now, there have been two flood way studies done, one by Mr. Easley and one by Morley and Associates, and you can go back to the previous picture, that, as you can see, Bob’s Gym is built. The flood way’s been altered according to DNR and the Corp of Engineers. Kohl’s was built. The flood way’s been altered according to DNR and the Corp of Engineers. It’s now contained within the new channel. That was something that I never thought would happen. Now, when Mr. Owen had his study done for Carpentier Creek Pavilion, DNR did not require him to go north of Hogue Road with his permitting. They only required the permit to cover this area down through here. But, as Mr. Owen said, told you earlier, there is preliminary engineering that covers all this entire area up here, and that preliminary engineering could go forward to determine the possibility of a new flood way. The problem that occurs is that this channel that runs down through Mr. David’s property through the asphalt batch plant, or his heirs and assigns property at this time, is not sufficient to carry the water to the bridge. The Hogue Road bridge, owned by the county, can carry more water than it currently does, but this channel is not capable of getting the water to the bridge. The channel from the bridge down through Carpentier Creek is sufficient that the Corp of Engineers and DNR has assigned a new flood way within the channels. The bridge going to Kohl’s will pass the 100 year storm. So, what I’m getting to is that, if you would imagine that the Hogue Road bridge were elevated and widened, the same as or nearly equal to Kohl’s entrance bridge, then you would see a bridge in Hogue Road that would pass the 100 year flood, thereby allowing the flood way to be contained within this channel here, if that channel were reworked, same as or similar to the channel that was reworked through Kohl’s. Until that happens, and you can go back to the previous, the reason I didn’t make all these comments in Area Plan Commission, basically, is they wanted them all to made here or at Drainage Board. Right now the flood way looks like this down to Hogue Road, which is right here, but south of Hogue Road the flood way is right along Rosenberger and over here in the new channel. So, to reduce this down to something similar, you would have to rework this entire old channel and carry the water through that asphalt batch plant and through a new bridge that the county would have to build, and it would have to be elevated at least as high, and made to be at least as wide as what Kohl’s paid to have done to enter their property. In doing that, and I’m sure that your County Engineer will verify that, Mr. David, or his heirs and assigns who now own the batch plant, are going to have to give up substantial right-of-way for a new, elevated bridge. I mean, you’ve run into that out on Green River Road. The higher you go, the wider you go. So, they’re going to lose all that property. I just want to point those things out, because they’ve come up in discussion today and previously, and thought it might be pertinent to your consideration.

Commissioner Tornatta: Okay, then I have a question. Let’s say we grant them the rezoning, is there, how would a contingency, or is there such a thing to have a contingency on this grant that they would be receptive to opening up for that particular right-of-way that would encompass the waters for Carpentier Creek?

Bill Jeffers: That sounds more like a legal question, as to whether you can attach those kind of contingencies on a petition. The way I understood it, I’m a member of Area Plan Commission, as you know, and, because we’re told basically just to consider the–

Commissioner Tornatta: I guess, what I’m looking at is, that would potentially open up their entire acreage, would it not? Because then they wouldn’t be considered in the flood way, is that correct?

President Nix: Let’s get Mr. Mills to answer that.

Bill Jeffers: I think Mr. Mills might be able to answer that for you.

Commissioner Korb: Brad?

Dennis Owens: Go ahead, Brad.

Brad Mills: Okay. Brad Mills, Area Plan Commission. Your question on the contingencies, you can do private covenants and restrictions, a private agreement, however, that’s really what the use and development commitment is used for. So, if you want to have some conditions, if you want him to agree to dedicate a certain amount of right-of-way, agree to put so much money towards a traffic signal, towards construction of the bridge, widening out the existing channel, that’s something that we really should have in the use and development commitment. He can stand here and tell you that he’s a good guy and he’s going to do all these things right, but we really don’t have anything that we, in the Area Plan Commission, could enforce, unless it’s in black and white saying he’s going to be a good guy and give us “x” amount of right-of-way, he’s going to put this much money towards a bridge. Whatever it is, he needs to spell it out for us to enforce.

Commissioner Tornatta: Well, in light of our County Surveyor presenting us this type of information, this might be good for the entire west side. If we were to at least revisit and address the potential that we would have, maybe relieve some of the water way by putting it in channels, which would then go through Carpentier Creek. That’s a pretty substantial movement of water, and potentially opens up some land in that area.

Brad Mills: I agree completely. If, I mean, like Mr. Owens goes through and makes those major improvements, it definitely would improve it. So, if he’s willing to commit to that, but, obviously, that would be his decision.

Krista Lockyear: If I could, Commissioner Tornatta, he doesn’t own that land that Mr. Jeffers just showed us needs to be improved. I mean, Carpentier Creek is not on my clients land that we’re seeking to rezone right now.

President Nix: The question was, there’s, the land that this bridge or this structure abuts is part of your, the bridges in the front of the property?

Krista Lockyear: It’s in front of the–

President Nix: Salvage–

Krista Lockyear: –cement batch plant, not in front of this property we’re rezoning.

President Nix: So, that–

Krista Lockyear: So, a use and development commitment regarding this rezoning–

President Nix: Is owned by someone–

Krista Lockyear: –can’t affect other–

President Nix: –else?

Krista Lockyear: Exactly.

Commissioner Tornatta: Okay.

Dennis Owens: Troy, I have something. That, John Stoll and I talked about this when, we was trying to figure this out the best way to go. We explored that, the fact of, even building a new bridge there, but that bridge is not old enough. John and I examined it, and I don’t think it’s near, I mean, where it would be cost prohibitive to do that, and the bridge is not that old. But, the hydraulics that I have, and show, there’s about two and half times the amount of water comes on that batch plant, which Bill and I have talked about before, sits in the middle of one, that creek over here, and then the flood water that comes across the back of that property there, which is Mr. David’s. Now, there’s more water that comes across there than comes through that creek. Then, if you can believe it, but I’ve got the numbers, and the hydraulics prove it that it does. By putting that, widening Carpentier Creek on the other side, we have reduced the amount of water that backs up in Bob’s Gym by at least 70 or 80 percent.

Commissioner Korb: When you say on the other side, you mean where Kohl’s is?

Dennis Owens: Yes, sir.

Commissioner Korb: Okay.

Dennis Owens: By that, we opened that creek up and made it wider. The bridge is put in there at the height of the 100 year flood. We’re about two tenths higher. That thing right there, we have almost eliminated the water that goes up in Bob’s Gym parking lot. Now, if he puts in retention ponds in the back of this property right here, it’s going to benefit Bob’s Gym, Hogue Road, and everybody else, because there’s a tremendous amount of water coming across Hogue Road still. But, it’s able to take it because of Carpentier Creek, it’s on the other side there. The drainage runs in front of Bob’s Gym, his drainage ditch combined with our creek being that much larger, but, it’s not even financially feasible to Jerry, for six acres, to ever consider anything like that, and he don’t even own the property. What he’s got to do is go over there and come up with retention ponds back there, in the back of there they own ten more acres back there, and back, that runs along that creek, which could be utilized for these holding ponds, or whatever you want to do. This thing here can be done, and it will be a benefit to everybody, it will pick up the tax base again, and it’s not necessary to even consider anything on that scale. I mean, you know, down the road you guys get ready, when that bridge wears out, John and I have talked about it, you put in a new bridge, elevate it up, and everybody will be better off. But, just to do that for a six and half, 6.2 acres project, is not even feasible. Thank you.

John Stoll: Two things, first on that bridge, long term ,when that eventually is replaced, if you can picture it being a similar elevation like the private bridge that Kohl’s owns, and then try to picture providing access to those abutting properties on the north side of Hogue, that will be the biggest obstacle, because you’ll have extremely steep driveway grades. So, there would be a substantial problem there. I know that that’s not part of the petitioner’s property, but that would be a major issue, if and when that bridge is ever replaced and the road is elevated. The other issue, I guess, would be kind of in regard to what Brad Mills said about the use and development commitment, as it stands now, I guess, there’s no guarantee that the recommendations for the traffic study would be implemented, if I understand it correctly, so, would we need a use and development commitment to at least ensure that any recommendations from the traffic study were constructed? Because if it came to site review without any binding commitment, I guess, how would we make sure that those recommendations were all enforced?

President Nix: Thank you, John.

Commissioner Korb: Really, John, what we’re talking about, even if we ask for those things, that doesn’t necessarily mean they’re all going to be implemented. So, there may not be that cost to Mr. David in the development of this property, is that correct?

John Stoll: It would depend ultimately on what was built there, what the traffic study–

Commissioner Korb: Right.

John Stoll: –said the traffic generation was, and take it from there. So, if it wasn’t a high traffic generator, you wouldn’t have massive improvements.

President Nix: Thank you.

Bill Jeffers: Just to clarify one or two points, and I’ll try to be brief. Detention basins work fine, you know, if they’re placed properly and sized properly, however, when you try to build a detention basin in a 100 year flood plain, I don’t think DNR or Corp of Engineers is going to allow you to elevate the 100 year flood plain in a flood way up to the point that it will contain the 100 year flow. So, basically....oh, do you have a tape change? I’m sorry. So, basically, well, that can be taken up in Drainage Board. What’s happening here is you have a watershed that goes all the way up to Kasson, Indiana. Red Bank Road on one side, Harmony Way on the other side, all the way up to 66. All that water is coming down through here. Way over there from Diefenbach, all that water is coming, from Koring Lane, all that water comes down through here, a little mud puddle duck pond is not going to control anything but what runs off this six acres. The reason that yellow shaded area is shaped like it is, and I’m not being contentious, and I’m not disregarding or disputing what Mr. Owens is saying, it is true that that bridge can carry about one third of the water that comes down from all that watershed I described, because only one third of the water is being channeled to that bridge. The rest of the water spills out of the creek back here at the railroad tracks, goes across the entire six acres, two thirds of the entire flow from the 100 year flow is coming across that acreage, that’s why it’s so wide there. Then, it comes across Hogue Road. I didn’t want to belabor this because all this is going to be discussed eventually in Drainage Board, at some point in time, whether I’m there or not, because it could be, you know, whenever. But, I heard at least one of the Commissioners express a concern about flooding Hogue Road. The reason Hogue Road is flooded is because two thirds of the water that comes down out of that watershed is not making it through the bridge, it’s going over the top of the road, at or west of Rosenberger Avenue. So, in order, I’m just repeating myself because to get the water off this ground that is seeking to be rezoned, the water has to be carried through a channel and to the bridge. I believe the bridge has to be elevated and widened, similar to Kohl’s entrance bridge.

President Nix: Thank you, Mr. Jeffers.

Bill Jeffers: Those are the comments I have today.

President Nix: We’ll hold just a second for a tape change.

(Tape change)

Commissioner Tornatta: If this project went back to Area Plan, with use and development commitment to be established, what does that do to the time line? Or does that restart the 90 days?

Brad Mills: That would restart the 90 days if we send it back. It would be a modification to the use and development your asking for to include some of these comments, is that what you’re implying?

Commissioner Tornatta: Well, it just seems to me like, you know, it’s warm and fuzzy, we have everybody here, but at the same time we’ve run into this before that if it’s not in black and white, we have no jurisdiction to go after, or to give any type of, levy any type of issue on these people. And, everybody here I feel is telling the truth, but at the end of the day, it needs to be in black and white. So, you know, I would almost challenge the Commissioners to follow me and recommend this go back to Area Plan for a thorough use and development commitment.

President Nix: Mr. Mills, do you have any other comments?

Brad Mills: No.

President Nix: Is there any other public comment?

Dennis Owens: Well, Troy, I agree with you, we’re all hearing a warm and fuzzy thing and you want to cover, you know, all the things that can happen, but if you pass this thing, and you give him the C-4 thing, we all know that he can’t do anything without the site review and everything else. You already have all that complete control. That cannot get out of that site thing, no matter what he, if he don’t do what’s in this thing here, and he don’t meet the federal thing, if he don’t get the codes, if he don’t get the permits, if he don’t get all that done, you guys aren’t going to give him no permit anyway. The fact that he agrees to everything up there, is of no significance, if, when you get to the thing, you’ve still got the last say. There’s no way that you guys can lose any control over this. If you go ahead and give him this thing, give him, pass the, give him the C-4, with that on the thing, and he has to do everything to make the commitments to get the permits. I mean, that’s the law.

Commissioner Tornatta: It’s not, it’s just going back to the fact that we don’t know when this project is going to be done, we don’t know when everything’s going to transpire, and we don’t know that these people are going to be sitting here or he’s going to be sitting there. So, that’s a commitment that we’re making mano a mano that we need to be making on paper. If it makes the Area Plan feel more at ease, if it makes these other organizations feel more at ease, then I think for what the time it would take to run through that process again–

Dennis Owens: Well, I don’t have any problem with that.

Commissioner Tornatta: –it’s going to bring everybody in line. That’s all. That’s all, because I trust Jerry and what you’re saying, and Krista, don’t get me wrong, but, I think that we now need to see it on paper, once it’s on paper it runs through and everybody gets on board.

Dennis Owens: Okay, but what, well, what are you looking for as far as the commitment things? I mean–

Commissioner Tornatta: Well, I think that’s going to be discussed during Area Plan, and then they are going to send it back to us with a blessing on what has been established in the meeting and what has been established by the Westside Improvement and the people that are remonstrating.

Dennis Owens: Okay.

President Nix: Mr. Owens, I’m just curious, what role are you playing in this? Are you going to be the developer?

Dennis Owens: No.

President Nix: Or are you just here speaking on behalf–

Dennis Owens: I’m just helping Jerry.

President Nix: Okay.

Dennis Owens: Him and I have been friends for 50 years, and whenever that, I tried to buy that property over there. I was going to extend my permit over there, which I know can be done now see. Because I already had the Corp, if I could have got that bought, they could have took my permit and extended it all the way out there.

Commissioner Korb: Are you the guy who did the Kohl’s development?

Dennis Owens: Yes, sir.

Commissioner Korb: Thank you.

Dennis Owens: Why, your wife likes it?

Commissioner Korb: No, it just makes the whole west side look like less of an armpit and I really appreciate the way that looks coming over the bridge.

Dennis Owens: Well, I think we done a really good job, and I think that Fred and them can tell you that I was probably one of the few contractors that ever did a job out here where I done everything exactly like I said I would do. This thing here with Jerry, I know all he’s going to get out of this thing is a couple of storage buildings and an office warehouse. I hate to see him at his age go out here and spend a ton of money to get something that you’re not going, you know, it’s not going to fly anyway. So, I mean, he can’t spend all his money without having the thing, I mean, it’s just logic. It’s not financially feasible.

Commissioner Tornatta: Yeah.

Dennis Owens: But, he needs to determine how much ground he can get, and whatever else, and you guys are holding all the cards.

Commissioner Korb: Ted, how much control will we lose over this if we grant the C-4 today, do we have a final say in it?

Ted C. Ziemer, Jr.: No. If you approve this today, you’re approving the rezoning, and then it is subject to, as everyone has said a number of times, they have to get site review approval, they have to get DNR approval, and they have to get all those approvals before they can go ahead with their construction, but they won’t be coming back to the County Commissioners again, except to the extent that the Commissioner are involved on any of those boards.

Dennis Owens: But, every one of your, every one of your agencies, Jeff, is going to have a final say. Bill Jeffers, John Stoll, everybody is going to have a say. You’re not, we can’t do anything without all these agencies. We’ve got to comply. We can say we’re going to fly over the moon, but it don’t mean nothing if you guys don’t see us do it.

Commissioner Korb: Okay, thank you.

Dennis Owens: Thank you.

President Nix: Any other public comment? Ms. Lockyear, would you like to close then?

Krista Lockyear: Sure. I would like to add, with regard to the traffic impact study, a traffic impact study is only as good as exactly, you know exactly what is going to go on that property. How much area will be developed, what type of use it is. We called Jim Morley’s office and said, hey, is there anything we can do to just kind of project? He said, you’ve got to know what you’re doing before you can tell us what traffic count, and, again, you know, we’ve got a lot of lay people, we’ve got a lot of educated people throwing out all kinds of ideas about drainage. I don’t have a DNR rep. here, and we’re going to have to get permits from a DNR rep. We don’t have an IDEM rep. here, and we’re going to have to get some permits from IDEM. That’s why this zoning is tough. It’s a tough piece of property to develop. But, this is rezoning, this is land use only. It’s not about whether there’s a wetland there and we get a permit. We can’t touch a wetland. It’s not about permitting to develop in the flood way. That’s DNR’s jurisdiction. It’s not a zoning issue. We’re only asking for a zoning commitment. The use and development commitment that, you know, Jerry makes promises is, I’m not sure what good that does you. That’s land use, and we did make the promises on land use that the west side group is concerned about. That we won’t do the environmentally nasty things on this property. Moving forward, there’s all kinds of other jurisdictional agencies out there that are going to be watching over this. I think Mr. Padget said it too, hey, we know we’ve got all those agencies watchdogging this, we’ve got Westside Improvement Association watchdogging this, we’ve got you guys all watchdogging this. I mean, from a land use point of view, the commercial zoning is appropriate.

President Nix: Okay, thank you. I believe there’s a motion on the floor. Is there not?

Commissioner Korb: Not yet.

President Nix: Okay. Mr. Tornatta? Or, Mr. Korb?

Commissioner Korb: Well, here’s where I am with this. It may or may not be appropriate discussion, but, I mean, really Krista’s right, we’re talking about a zoning deal here. We’re not talking about bridges, we’re not talking about expansions of roads, we’re not, I mean, all those things are important. With all due respect, at the same time, as a west sider, who has moved from the east side to the west side to get away from the east side congestion, what has been developed with Kohl’s is great, and I want to continue to see that. The thing we have going on with Wal-Mart right now is a blight. It’s hideous. Let’s not be coy about this, yes, the Jerry David concrete asphalt operation is owned by his kids, and eventually this project will be too. Unless they do something horribly disrespectful to you, Mr. David, and I hope they don’t. Yeah, I know you do too, except for that three story building. So, I, you know, I want to have some control over this, but I feel much better hearing Fred’s comments, because I respect where he’s coming from. I know he’s got reservations, but I’m still conflicted. I don’t have 100 percent feel good thing about it, but I don’t want to push it back another 90 to 120 days for you, that’s a half a year goodness sakes. So, I’m stuck.

Commissioner Tornatta: Would a week help you get unstuck?

Commissioner Korb: Well, you know, it would. I know that if we don’t vote on this now, then it flies on through and it’s all a moot point–

Commissioner Tornatta: No, not this, I mean, we can vote on it next week. We can come back and do the same issue next week, and have the same amount of time to vote.

Ted C. Ziemer, Jr.: Yes, you can take this under advisement and indicate, and vote to hear it again next Tuesday.

Commissioner Tornatta: I mean, I’m not one to stall the issue, but the one thing that I was concerned about was that you’re newly elected on this board, you haven’t had ample time to be able to go over any of these issues and then make a vote that’s in the best interest of actually the place that you represent.

Commissioner Korb: Right.

Commissioner Tornatta: So, at the same time, I mean, I can understand that, and would like, if you want to, or make a motion that we delay this a week and see this–

President Nix: Let me just throw something else out, if we act on this next week, that really doesn’t give Area Plan any time to make any corrections, changes, or it’s basically still going to be a gentleman’s agreement. Correct me if I’m wrong, Mr. Mills. There won’t be any other things done through the Area Plan to make this any more binding at all?

Brad Mills: That’s correct. You are acting on the use and development commitment that was submitted, and previously Area Plan has seen. Any changes that we would enforce have to go back to Area Plan Commission.

Commissioner Tornatta: But, if we send it back–

President Nix: If we send it back, then it won’t necessarily be approved next week, because you all will need to hear this again before it comes back to us, is that right?

Brad Mills: Right, our deadline is Thursday that we would be sending out legals. So, it wouldn’t go to October’s meeting, but it would be able to go to November’s meeting, and then you guys usually see it the week after that. So, this would be–

President Nix: I guess, my point is, is that we can sit and think about this for the week, but nothing’s going to change on their behalf, because you all won’t meet until after our meeting next week to make anything, any more agreements between the groups, is that correct?

Brad Mills: That would be correct.

Ted C. Ziemer, Jr.: I would just mention, from a legal perspective, some of the conversation that’s been had here today, which addresses what will take place at site review, or in obtaining permits from the Department of Natural Resources, you can’t really put that in a use and development commitment. You can’t say, I agree to get the consent of the Department of Natural Resources. You’ve got to get the consent of the Department of Natural Resources anyway. So, I think it’s a little puzzling, if you want to have an expanded use and development commitment, there ought to at least be some indication to the petitioner of what you want to see in the use and development commitment.

Commissioner Tornatta: I think the thing that’s happened is, they’re doing it backwards. Normally, you have all these things done, and then you bring it to the board. We’ve got this approved, this approved, this approved, and they’re doing it in a different way. So, all, I guess, that’s maybe what, and everyone’s not comfortable with, although, you know, we’ve heard a lot of information today. I just, that’s what I’m looking at.

Ted C. Ziemer, Jr.: Except, Commissioner, it went to the Area Plan Commission, there was a use and development commitment, and the Area Plan Commission on hearing that, with a use and development commitment, approved it, ten-zero.

Commissioner Tornatta: Uh-huh.

Ted C. Ziemer, Jr.: So, the commission charged with advising the Commissioners–

Commissioner Tornatta: Right.

Ted C. Ziemer, Jr.: –as to land use has indicated that this should be approved. The only thing I think, and with all due respect to everything everybody’s had to say here today, I do think the petitioner, if they are going to be asked to do something further with the use and development commitment, ought to have some direction as to what that might say. Otherwise, I frankly don’t know what they would put in an extended use and development commitment.

President Nix: Once again, the point I was trying to make was that nothing is going to change between now and next week, if we do in fact vote on this next week.

Commissioner Korb: So, what are we wanting? We’re wanting double egress lanes, drainage? No, we’re shaking our heads. I mean, what are we after? Because of terms of development of what they want to use their property for, I’m comfortable with that. I’ve heard from Fred, I’ve heard from Krista, I’ve heard from the developer, you know, as long as it’s not another Arby’s, or a gas station, and we’re not doing that. So, I’m good with that.

Commissioner Tornatta: Then make a motion.

Commissioner Korb: I move we go ahead and accept this, as a C-4, from agricultural to C-4, and I say that because there are enough hurdles that this developer is going to have to jump over to get to this point. I think it’s logical to understand, that if it’s in a flood zone and he’s dumb enough to build something there, then the insurance company isn’t going to cover it anyway. If the bridge collapses, it collapses, but at this point in time I think that I’m comfortable with saying let’s go ahead and accept this as a C-4 zoning. Primarily because of the commitment and the comments that we heard tonight from Fred Padget, because I think that what he says really represents a lot of what we do on the west side of Evansville. So, I move that.

Commissioner Tornatta: Okay. I would second that knowing that you feel comfortable enough to vote on it.

Commissioner Korb: Thanks.

Commissioner Tornatta: And your meeting, so, I’ll second the motion.

President Nix: A motion has been made and seconded. All in favor?

All Commissioners: Aye.

President Nix: Opposed same sign. Roll call vote. Commissioner Tornatta?

Commissioner Tornatta: Yes.

President Nix: Commissioner Korb?

Commissioner Korb: Yes.

President Nix: And I vote yes. Any other issues?

Commissioner Korb: Thank you everybody. Thank you, Troy.

President Nix: We’ve got one item, a little housekeeping item, we need to approve the minutes of, the zoning minutes of 8/21/07.

Commissioner Tornatta: So moved.

President Nix: I second. All in favor? Aye.

Commissioner Tornatta: Aye.

President Nix: Thank you.

(The meeting ended at 5:20 p.m.)

Those in Attendance:

Bill Nix                                      Jeff Korb                                   Troy Tornatta

Janet Greenwell                       Brad Mills                                  Ted C. Ziemer, Jr.

Madelyn Grayson                     Krista Lockyear                         Fred Padget

Dennis Owens                          Jerry David                               Others Unidentified

Members of Media

VANDERBURGH COUNTY

REZONING BOARD

Bill Nix, President

Jeff Korb, Vice President

Troy Tornatta, Member

(Recorded and transcribed by Madelyn Grayson.)