VANDERBURGH COUNTY

REZONING BOARD

SEPTEMBER 26, 2006

The Vanderburgh County Rezoning Board met in session this 26^th day of September, 2006 at 4:24 p.m. in room 301 of the Civic Center Complex with President Cheryl Musgrave presiding.

Bev Behme: Do you want me to go ahead and do first readings?

President Musgrave: Would you please?

Bev Behme: Good afternoon.

Bev Behme: First on the agenda, we need to approve the rezoning minutes.

President Musgrave: Bev, please move the microphone closer to you. Thank you.

Bev Behme: The rezoning minutes for July 18, 2006.

Commissioner Nix: So moved.

Commissioner Shetler: Second.

President Musgrave: All those in favor?

All Commissioners: Aye.

Bev Behme: We have three first readings, I’m sorry, four first readings. VC-13-2006, the address is 3910 North Burkhardt Road, from agricultural to C-4. Do you want to do these as a group?

President Musgrave: Yes, please.

Bev Behme: VC-14-2006, the PAMS, LLC, 4905 Pollack Avenue, agricultural to C-4 with a use and development commitment; then VC-15-2006, Broadway Summit, LLC, 2708 North Green River Road, agricultural to C-4 with a use and development commitment; VC-16-2006, Elite Development Group, LLC, 1034 Beacon Hill, change from an agricultural zone to a C-2 zone. These just need to be read into the record and forwarded to APC.

President Musgrave: Is there a motion to approve?

Commissioner Nix: So moved.

Commissioner Shetler: Second.

President Musgrave: All those in favor?

All Commissioners: Aye.

President Musgrave: We move now to the final reading.

Bev Behme: We have one final reading. That’s VC-12-2006, petitioner is Hugh Hazelwood, 8100 Pollack Avenue, R-1 to C-4 with a use and development commitment. Mr. Hazelwood is requesting to change the zoning of a portion of his property located at 8100 Pollack Avenue from R-1 to C-4 with a use and development commitment. This two tenths of an acre site located on the north side of Pollack Avenue, just west of Indian Mounds Boulevard. On July 18, 2006 the Vanderburgh County Commissioners voted to send this petition back to the Area Plan Commission to allow further amendment to the use and development commitment. The new use and development commitment limits the site to a single C-4 use, a home and business improvement company. The commitment limits use of the site to office and storage of equipment, vehicles, and work related non-hazardous materials. All storage will be contained within an opaque fencing. There will be no display of materials, no direct sales from the site, no semi-trailers allowed on the premises, and the existing 2,400 square foot building shall not be enlarged. This site on Pollack Avenue was the former location of Knight Township Fire House number seven. The original block garage on this site was built in the mid 1930's and was certified as a legal, non-conforming commercial neighborhood retail use by the Area Plan Commission in 1982. In December 1989 the fire house was established on this site by approval of a special use permit by the Board of Zoning Appeals. The legal, non-conforming commercial classification was abandoned by the owner of the site upon conversion to the public building use as a fire station. Two additions were made to the fire station during their occupancy of the site. This is a request to rezone the vacant site to C-4 with a use and development commitment to allow re-establishment of a commercial use within the commercial building on the site. Pollack Avenue at this location has no curbs or sidewalks, and the property is currently graveled to the street. Commercial use of the site will require review and compliance with a site review committee recommendations. Comprehensive plan future land use designates this are as residential and undeveloped, surrounding area is completely agricultural and residential. The Area Plan Commission heard this amended petition on September 14^th. Their no recommendation vote was five affirmative votes, three negative votes, and one abstention.

President Musgrave: Mr. Shively, are you the attorney this evening?

Les Shively: Madam President, members of the Board of Commissioners, my name is Les Shively, I’m sort of the second stringer here, filling in for Ed Johnson who couldn’t be here today. So, bear with me. I’m sorry Ed couldn’t be here, and you’re going to have to deal with me today. Let me just, the staff report that Beverly gave you is very detailed, but let me hit a couple of highlights that I think are important, just so we can put this all in perspective. There have been comments made, and I read in the minutes from the other hearings that I was present at, this is not the only C-4 in the area. Do you see the purple strip running up and down? That’s the back portion, if you will, of Stemaly Excavating’s operations. They extend over to Fuquay Road. That is zoned C-4, and it extends all the way to Pollack Avenue. In my understanding, reading the maps, everything just south of Pollack Avenue across from that does belong to Angel Mounds. So, there is presently now a C-4 directly across, just directly north of the Angel Mounds property. So, I want to make sure everybody understands that. If you could, do we have the photographs of the building? As you can see from the structure, that structure has never been a residential structure. It was a service station back in the ‘30's, and remained a legal, non-conforming, in fact, it was established before we even had zoning law in this particular part of Vanderburgh County. It was used for commercial purposes and got the legal, non-conforming designation. That all changed when Knight Township entered into an arrangement to utilize the property for it’s operations until this last year following the tornado, with you all assisting them in their new location, and I’m sure you’re well award of the transition. Because of that, it lost it’s legal, non-conforming status. My client now is in the horns of a dilemma. This property has never been used for residential purposes. He wants to put the property to some sort of economic use. He’s retired, he’s on a fixed income, this helps supplement his income, the rent. He’s found the perfect tenant, the one that will fit perfectly there, that doesn’t need all of the typical things you would have with a commercial, and thus we are, my client’s in a position to put this very restrictive use and development commitment. Essentially, limiting it to this particular user, this type of user. No semi-trailers, the building being, the footprint of the building itself will not change. Any outside storage will have to be behind the opaque fencing, no sales display, no, you know, sales activities, this is just basically for the office and storage of materials for this particular business. It does it’s operations at other sites for it’s customers. It’s a great fit. As I’m sure you all are aware, on use and development commitments, if the ordinance is approved, these commitments run with the land. Should Mr. Hazelwood decide to sell this property, these restrictions run with the land and they are binding upon subsequent owners. The only way they can be changed is if someone brings a petition to get relief from that vis a vis a rezoning petition, and you all would ultimately be the ones to make that decision. Until that happens it will remain in perpetuity limited to this very narrow type of use. Again, without this, this property basically will remain vacant, not useable, probably generate little, if any, kind of tax revenue. This is a win-win for everyone. It gives the neighbors out there some assurances of what’s going to be there, and more importantly what’s not going to be there. Some things I would like to share with you, because I know you’re going to hear from Mr. Roberts, I went out there after Ed had asked me to pinch hit, and I took my digital camera, and I’m not the best photographer in the world, but I stood a the entrance to Angel Mounds and looked out towards where this property is located, which is about three tenths of a mile. You can’t even see this property from Angel Mounds. I’m going to share these photographs with you here in a moment, but, again, I would bring to your attention, there’s already C-4, I believe it’s unrestricted, immediately across the street there as you go further to the west, as you go towards Fuquay Road, immediately across from Angel Mounds property. So, here are the photographs. Again, we believe this is a win-win proposition. It reaches the concerns of the neighbors, and I believe there’s one neighbor, I believe her name is Sheryle Mills, who was here the last time, and she had talked to the Plan Commission, and she expressed the fact that she was pleased with this use and development commitment, because she knows it’s going to be limited to what’s there, and it will at least be productive and won’t be abandoned, which leads to other problems, as you know. We believe you’ll probably here from a little bit later, we have a gentleman here just briefly, if you would come forward, sir, and state your name.

Bobby Dancy: I live at 8022 Pollack. It’s just to the left of the property that you have there. It will be (Inaudible. Microphone cutting out.) My name is Bobby Dancy. It will be a, I like the security lights and all (Inaudible. Microphone cutting out.) that will be added.

Les Shively: Thank you. Again, we’ve tried to meet the needs and the concerns of the neighbors, and, again, not to repeat myself, but this is certainly a better solution than having the building abandoned. The neighbors seem to be pleased with it. Again, we’re more than happy to answer any questions you have. Mr. Hazelwood is here this afternoon as well. Again, we would be more than happy to answer any questions you have about this request.

President Musgrave: Are there any remonstrators to speak? Sir, would you come forward and state your name?

Mike Roberts: My name is Mike Roberts. I’m president of the Friends of Angel Mounds. Since Mr. Shively used my name, I guess, I’d better get up here and say a few words. Our objection still remain that regarding this as a C-4 development. We believe that this building’s time has passed. We are concerned with C-4 development along the whole area. As Mr. Shively pointed out, there’s another one down the street, which, frankly, I don’t think anybody’s real happy with. I just feel strongly that we ought to be able to find another use, that this building should be fixed up. I know that comments have been made by Mr. Hazelwood, to some people, that after the tornado how little money was actually put in for repairs. He got volunteers to help him repair the building. I also know that the first time this went around to the Area Plan Commission, I questioned the integrity of the building, and I’m not a building person at all, but, you know, this is an old building. I appreciate the people’s concerns about a building standing vacant, that is true, but also structures that stand vacant very long, quite frankly, should be done away with, in my view. There is another problem there that came to my attention recently, and it’s been there a long time, so, this is a long standing problem, and it is a problem all over the county, and that’s standing water. We do know that this property is a little bit higher than some of the other property, and I know that some of the residents out there, very near there, have had a real problem last weekend with the water. At the last time the Area Plan Commission met a week or so ago, that very day I was meeting with Ms. Gail Rieken, of the Parks Board, regarding Angel Mounds boat ramp. It was very interesting because after we met at the boat ramp and looked at some things, I was approached by a gentleman who wanted to make, talked to me and my friend about the boat ramp, had a proposal to put in a boat storage facility near there. I didn’t have a chance to talk to him, but I quickly realized there would be a little bit of a problem because of the flood plain. Obviously, we would be opposed to this, because this is right on our doorstep, because now Angel Mounds does have all the property up to Lenn Road, even the property that is now being cultivated, it is under our control, because we have a little over 600 acres. This is a dilemma. I do not believe that this is the solution to the dilemma. I do believe, and Mrs. Musgrave can correct me if I’m wrong, Mrs. Lynn of the Area Plan Commission, the first time this came around, she spoke up talking about that this should be made in to something else, residential or, you know, some other type of facility. We believe that should be. This area is growing. There are more and more people. We are on the edge of Warrick County. I know we’re not, have much to do with Warrick County, but I would like to point out from Stacer Road all the way to Mulzer Stone, there’s just a whole host of houses and apartments being developed, and the traffic is increasing all the time on Pollack Avenue. I’m not sure this Commission will have to face this problem, but I would predict the day will come when you’ll have to take a serious look about expanding and doing something with Pollack Avenue, because I’ve already seen the traffic. I’m sorry, but we remain opposed and do not believe that this should pass.

President Musgrave: When you say, “we”, to whom do you refer?

Mike Roberts: I’m talking about our board of directors. We had a meeting the other night, we have a monthly meeting, and we talked about this again because it was coming up again.

President Musgrave: That’s the board of directors for the?

Mike Roberts: Friends of Angel Mounds. We meet on a monthly basis. We have about 20 members-

President Musgrave: Fine.

Mike Roberts: --on our board.

President Musgrave: So, they have asked you to appear here and to oppose?

Mike Roberts: That’s part of my job being president.

Commissioner Nix: Congratulations.

President Musgrave: I do have a question for Bev Behme, if you’re available? Thank you, sir. This twice failed to win the approval of the Area Plan Commission?

Bev Behme: The first vote was on July 13^th was denied, zero yes, ten no’s, and two abstentions. Then, on the 14^th of September, there was a no recommendation. You have to have at least seven one way or the other. It was 5-3 and one.

Commissioner Nix: The first time it was, it came to the board with just a C-4 zoning, is that correct?

Bev Behme: Correct, well, I think it had a use and development commitment, but they amended that to make it more restrictive.

Commissioner Nix: And that was on the second vote through?

Bev Behme: That’s correct.

Commissioner Nix: Okay.

President Musgrave: To clarify about it’s “grandfathered” zoning, when it was part of it’s use as a fire station, could you explain a little bit, when Vanderburgh County adopted zoning regulations, some properties were described as legal and non-conforming, why would those properties have been given such a status? Why weren’t they zoned one way or another?

Bev Behme: Well, there still exists legal, non-conforming property in Vanderburgh County that was either there prior to the zoning requirements, or the zoning requirements have changed, or they were actually annexed into the city. Then, a lot of agricultural property that was brought into the city, and it states in the zoning code, it automatically becomes R-1. But, this was commercial property, when the fire station received their special use it became a fire station. Once it became a fire station, it lost it’s commercial, non-conforming status.

President Musgrave: My question is more why was it considered non-conforming? Why wasn’t it zoned what the use it actually had?

Bev Behme: Well, unless the property owner petitioned to have it zoned. I mean, we normally don’t go and rezone property to bring them into compliance.

President Musgrave: I guess, I’m still not sure you answered my question, which is when we adopted the zoning regulations and it was called non-conforming, is that because the area around it was considered residential and this was thought to go back to residential at some point?

Bev Behme: No, well, to have something legal, non-conforming, it’s always our plan to bring those into conformancy there, either by rezoning or if it were....well, even if it were taken down, it would still retain the zoning. But, as I said, there’s still property, and you have down zonings, we have at least two or three a month, every month at Plan Commission, because they’re residences in commercial areas, and those are there until the property owner attempts to rezone them.

Commissioner Nix: How much property is this sitting on? I think it was brought up a few minutes ago.

Bev Behme: It was two tenths of an acre.

Commissioner Nix: Two tenths? And that includes the building and the lot we’re looking at, and the lot around the back? There’s a drive with it?

Bev Behme: Correct. I think, originally, it was Mr. Hazelwood’s house, to the east of that, and I believe this was the garage.

Commissioner Shetler: Actually, I’m sorry, were you finished? Actually, I think if the Area Plan, at the time of that ordinance, would have just gone through and just given each one of these legal, non-conformings the new change in status, for example, made it C-3, or C-2 or C-4, we would be facing a real problem today in that there’s a whole lot of things they could have put into here, as opposed, without ever coming before this body, or anyone else.

Bev Behme: That’s true.

Commissioner Shetler: So, by doing it the way they did it, it does allow some public review, so that we are able to make sure that it fits within 2006 standards, as opposed to 1950 standards.

Bev Behme: And there was a public hearing when the Board of Zoning Appeals awarded the special use for the fire station.

Commissioner Shetler: Right, and when they did that, by the special use, had to go with an R-1 compatibility, and you didn’t have legal representation, I don’t think, at the time to adequately explain to you what the effect would be down the road. Had you had that professional legal advice, perhaps you would have done something different on getting that–

Hugh Hazelwood: I think I would have asked for a C-4 with (Inaudible. Microphone cutting out.)

Bev Behme: Well–

Commissioner Shetler: I’m trying to give a commercial here for our professional attorneys.

Bev Behme: I know, I know, but normally on fire stations all over the city and the county, those are special uses that can go in any zone. So, the zoning was not an issue when the fire station, once the special use was there, whatever commercial zoning had been legal, non-conforming was wiped out.

Commissioner Nix: From a practical standpoint, I’m looking at this picture right now, and I’m saying if a person decided they wanted to put apartments in there, the things you would have to do to build apartments on two tenths of an acre, you don’t have enough parking, structurally you would have to do a tremendous amount of things, cosmetically, to rent it out. So, I don’t–

Bev Behme: You would have to rezone it even for that.

Commissioner Nix: It still would have to be rezoned.

Bev Behme: Right. It would still have to be rezoned.

Commissioner Nix: Right, so, that’s, I mean, then there could be some issue about trying to do something else with it, it doesn’t appear that there’s any other logical thing to do other than try to make that work or tear it down. What do you have when you tear it down?

President Musgrave: Well, I think somebody who wanted to live in the house and had several vehicles to store, this would be absolutely perfect for that.

Bev Behme: That would take a commercial zoning for that.

President Musgrave: For a three car garage?

Bev Behme: Yes.

Commissioner Nix: Free standing?

Bev Behme: For a commercial vehicle storage–

President Musgrave: No, I was just talking about personal vehicles.

Bev Behme: Well, that’s the same thing. It’s the same thing. It would still require commercial, it’s a commercial storage area.

President Musgrave: So, the houses we see around the county with more than two car garages–

Bev Behme: No, if they’re on the same lot, if they’re attached, that’s one thing–

President Musgrave: Right.

Bev Behme: –but this is separated now. So, it really has lost all residential flavor it had.

Commissioner Nix: This, it sits on it’s own lot?

Bev Behme: Now.

Commissioner Nix: Now?

Bev Behme: I mean, I don’t think it was legally separated, but it is now, after all the use that was there.

Commissioner Shetler: So, this is a classic dilemma?

Bev Behme: Yeah.

Commissioner Shetler: I mean, this boils down to the fact that really we leave the gentleman with really no alternatives, no practical alternatives but to perhaps tear it down, which, you know, I’m not sure what purpose that would be. So, we are looking at a situation here that it could either become a serious eyesore if it’s left to deteriorate.

Bev Behme: That’s possible.

Commissioner Shetler: Or, we, you know, do something that the remedy may not be perfect, but it certainly resolves a certain amount of problem that’s at hand anyway. So, it’s really confined. I mean, he can do nothing else with it–

Bev Behme: No.

Commissioner Shetler: –but specifically to that one specific–

Bev Behme: Exactly.

Commissioner Shetler: –area.

President Musgrave: I have a question for Mr. Hazelwood or Mr. Shively, someone, somewhere told me that you actually are an attorney or that you were at one time, is that accurate?

Les Shively: He was land man. He (Inaudible. Microphone cutting out.) He worked for the coal companies, acquired land and such.

President Musgrave: Was he an attorney?

Les Shively: Yes.

Hugh Hazelwood: Yes, I was admitted to the bar.

President Musgrave: So, he was admitted to the bar at the time that he transferred the–

Les Shively: Well, Madam President, I’m an attorney practicing law, but I’ll tell you one thing right now, I wouldn’t try to patent something, I wouldn’t try to get a copyright, that’s beyond my area. Zoning is a very specific, unique area, even for people who do real estate. I get a lot of referrals from real estate lawyers that do title work, because they don’t know the first thing, with all due respect, regarding zoning and land use. That’s a very unique area in and of itself. So, I can see how a practitioner may not be aware of all the nuances.

President Musgrave: Let me make sure I’ve asked for all of the remonstrators who may be present wishing to speak. It appears that we have heard from all of them. So, I’ll ask for your summation, Mr. Shively.

Les Shively: Again, there’s only one particular use that can go here. This is not really, it’s a C-4 with a use and development commitment. This is not a carte blanche C-4. The reality of the fact is, that for 71 years this property has never been residential, it’s been some kind of commercial or public use. Again, had, the time the fire station went in in 1982, there’s certain things that could have been done that would have allowed that legal, non-conforming to be perpetuated, which would have had no restrictions on commercial. Let me tell you what legal, non-conforming is, the United States Supreme Court held a long, long time ago when communities started doing zoning, that if a use was previously established legally, I think back before zoning the only thing you had were building permits, was established legally and the use in there was a legal use, it wasn’t some type of nefarious activity, it could continue in that classification, unless something would trigger it by changing the use, or what have you. So, that was the thinking back in those days. Another point, and curious enough, Mr. Roberts brought this out in his comments, although, I don’t really think you can show how this could in any way, shape or form affect the wonderful work going on out there at Angel Mounds, but he talked about standing water. If you’ll recall Ms. Behme’s report to you a moment ago, even if you would approve this this evening, before this tenant can go in there, this is a change in use which requires him to go to site review. Bev, you interrupt me anytime if I’m stating something wrong here, they’re going to have to show the site plan. If there are concerns about water and surface water, they’re going to have to address those. So, this is an opportunity, if standing water is a problem here, although that little piece of property can’t, I don’t think it’s creating a major problem out there, but for what it’s worth, there’s an opportunity to deal with that issue. Again, and this is not a traffic generator, I would note that as well. This is a compromise that takes into consideration all of the concerns, allows this property to be productive, allows Mr. Hazelwood to continue the use or this property. It’s a win-win for everyone. As you can, there have been no adjacent neighbors that are upset with this. Abandoning this property and allowing it just to deteriorate would not be in the best interest of anyone. We would ask for you favorable action here this evening to approve this with the use and development commitment. Thank you.

President Musgrave: We’ve heard the testimony, remonstrators, I believe it’s customary to ask for a motion to approve a rezoning, and then if you are not in favor to vote against. That makes the record clear what the intention of the motion was. So, I will ask for a motion at this time.

Commissioner Shetler: So moved.

Commissioner Nix: Second.

President Musgrave: Alright, we have a motion to approve. All those in favor?

Commissioner Shetler: Aye.

Commissioner Nix: Aye.

President Musgrave: Opposed? And I am opposed. So, show it two to one approved. If there are not further matters?

Bev Behme: Are you going to have a roll call?

President Musgrave: Commissioner Nix?

Commissioner Nix: Yes.

President Musgrave: Commissioner Shetler?

Commissioner Shetler: Yes.

President Musgrave: And I vote no. So, if there are no further matters to be brought under the Area Plan portion of the meeting. I show it adjourned, and we move to drainage board.

(The meeting was adjourned at 3:50 p.m.)

Those in Attendance:

Cheryl Musgrave                      Bill Nix                                      Tom Shetler, Jr.

Kathryn Schymik                      Madelyn Grayson                     Bev Behme

Les Shively                               Bobby Dancy                            Hugh Hazelwood

Mike Roberts                            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.)