MINUTES

WARRICK COUNTY AREA PLAN COMMISSION

Regular meeting held in Commissioners Meeting Room,

Third Floor, Court House,

Boonville, IN

Wednesday, October 13, 2004, 6:00 P.M.

(Meeting actually began at 6:30 P.M.)

MEMBERS PRESENT: Guy Gentry, President; Robert Addington, Carl Conner, Duane Erwin, Gary Michel, Mike Moesner and Larry Willis.

Also present were Sherri Phillips, Executive Director, Les Shively, Attorney, Sheila Lacer, Assistant Director and Angela Fehr, Staff.

MEMBERS ABSENT: None

Roll call was taken and a quorum declared present.

MINUTES: Upon a motion made by Larry Willis and seconded by Robert Addington the Minutes of the last regular meeting held September 8, 2004, were approved as circulated. Carl Conner abstained from voting and all other members voted in favor of the motion to approve.

The President explained the Rules of Procedure to the audience and added that any rezoning receiving a recommendation this evening would be forwarded to the County Commissioners on November 10, 2004.

REZONING PETITIONS:

PC-R-04-26 - Petition of Donald & Celinda Sisco to rezone 1 acre located on the S side of Golden Dr. approximately 300’ E of the intersection formed by Bell Rd (W 850) & Golden Dr., Ohio Twp. from “A” Agriculture to “C-4” General Commercial. (Complete legal on file.) Advertised in the Boonville Standard September 23, 2004.

Donald and Celinda Sisco were present.

The President called for a staff report.

The Executive Director stated the return receipts from certified mail of notice of this meeting to the adjacent property owners have been submitted. She stated this petition is to rezone 1 acre from Agriculture to “C-4” General Commercial. She explained that for a commercial zoning there is no minimum lot area required. She explained the applicants are living on the property and have a garage on the property and they are requesting to rezone the property in order to bring their garage into compliance with current zoning. Ms. Phillips stated the property to the north is zoned R-2B – Springview Apartments; to the south is R-1A – Green Springs Valley Subdivision; to the east is Agriculture – Residence and to the west is C-1 – TQM Development – proposed mini strip mall. She stated there is no flood plain on the property and added the property fronts on Golden Drive which is a described as a road by deed but not maintained by the County. She stated it will be up to the County Highway Engineer to determine whether the driveway will need to be upgraded for a business. She further stated an automotive repair garage which is allowed in a C-3 zoning as well as the C-4. She informed the Board that the Siscos obtained a Variance from the Board of Zoning Appeals in 1998 to build the garage. She stated the Variance was due to them not fronting on a maintained County roadway. She added that when the permit for the garage was issued, Mr. Sisco certified that it would not be used commercially. She added they also had to enter into a hold harmless agreement with Warrick County due to them not fronting on a maintained right of way.

Mr. Sisco stated they also work on trucks and occasionally they will have heavy equipment and machinery there. He stated he thought the C-4 zoning might be better for that.

Ms. Phillips stated she thought that he just operated an automotive repair shop. She then asked him how long he has been operating this garage.

Mr. Sisco stated he has been operating there for six years.

The President called for questions from the Board.

Larry Willis stated Mr. Sisco indicated to the BZA back in 1998 when he got his Variance that it was not going to be used commercially and now he says he has been working there for six years.

Mr. Sisco stated he started there in January. He stated when he originally built the garage he had a shop in Evansville and had about 9 people working for him and then about a year after he completed this building he and his partners had a disagreement and he didn’t know what he was going to do and then someone asked him to work on his truck and then it just went from there. He stated it grew a little more than he wanted it to.

Ms. Phillips asked if he has a septic system to which Mr. Sisco stated he does. Ms. Phillips then asked him if he has spoken to the Health Department regarding regulations for commercial systems.

Mr. Sisco stated he did check about six years ago about putting in a sewer line and they asked him if his septic was working, and it was. He stated they had a new field bed put in about five years ago.

Ms. Phillips asked Attorney Shively if she is correct in saying that if the rezoning is approved that it doesn’t mean that they meet all of the requirements of any other local or State agencies, such as the Health Department.

Attorney Shively stated that is correct. He stated the zoning means that they can use it for the commercial purpose but the Health Department will still be regulating the commercial septic.

Mr. Sisco stated they don’t have any public restrooms there.

Ms. Phillips stated they don’t know if there is or not, they are just trying to inform him that the Health Department does have regulations regarding commercial property.

Mr. Sisco stated if they need to put in a sewer that won’t be a problem.

Attorney Shively stated all they are trying to say is they want him to be aware that if the zoning is approved he could still have issues that need to be resolved regarding his business operation.

Mr. Sisco stated he appreciates that.

Ascertaining there were no other questions from the Board, the President called for remonstrators.

Jack Tubbs, TQM Development, submitted some photographs to the Board. (Copies on file.) He stated he owns the property immediately to the west of the Siscos and it is zoned C-1. He stated he rezoned his property about three years ago proposing to build about a 12,000 square foot strip mall. He stated during that time Mr. Sisco and he have had different discussions about access and utilities. He stated according to his title work on his property and the opinion of two different attorneys, Golden Drive, at least on his frontage is not a dedicated right of way. Mr. Tubbs stated he is not here to quash what Mr. Sisco wants to do but he thinks it a bit premature right now to even consider a C-4 zoning for his property.

Mr. Tubbs stated they met out at his job site about two weeks ago because he had numerous questions that he thought needed to be addressed on a private matter before they could consider rezoning the property to C-4. He stated those questions were access across his property, pavement upgrade because he is going to be spending money on his portion of the property and as they can tell by the photos, Mr. Sisco does run heavy equipment to his property. Mr. Tubbs stated that he doesn’t have them there routinely but they are there more than what he alluded to. Mr. Tubbs stated he wants some assurances that the pavement that he puts in on his property is not damaged by the vehicles coming in. He then stated there is some septic leakage on to his property that needs to be addressed along with utility extensions (water and sewer). He stated right now the utilities cross his property to the Siscos. He then asked how he is going to handle his storm water release from his property to the pipes that have been put in on his (Tubbs) property to connect to Bell Road. Mr. Tubbs stated it is his understanding that when he built that building it was for private use. He stated whenever he builds a commercial building he has to send his plans to the State for plan approval as well as going through all of the local approvals for permits. He stated he doesn’t see assurances as an adjacent property owner that Mr. Sisco’s building meets State and local building codes for a continuing operation. He stated the last thing is that there are a lot of obnoxious activities that can go in a C-4 zoning and he would like to have Mr. Sisco consider a private use and development covenant between him and the neighbors that would help protect them in the future. Mr. Tubbs stated another thing he would like to say is that if he gets this C-4 then he will come back before the Board to have them reconsider his property’s zoning from the C-1 to C-4 as well. He stated he thinks his property has less impact on the neighbors because he fronts on Bell Road and if they consider Mr. Sisco for a C-4 then he thinks it would be logical that his property should also be C-4.

Mr. Tubbs recommended this issue be tabled for consideration in order for him and Mr. Sisco to work on their issues and hopefully come to a resolution.

Attorney Shively stated unless they have something definitive that Golden Drive is dedicated to the public, that issue alone is something that he would recommend they hold up on with this zoning until they get confirmation. He stated Mr. Tubbs says the access goes across his property.

Mr. Tubbs stated when he bought the property three years ago it was his understanding his was the last piece of property in the Golden Family. He stated the property originally went back about 500 some feet and the opinions that he got was that his is private property and there was never any easement dedicated as far as access and there has never been any easement dedicated as far as utilities.

The Executive Director stated this situation with Golden Drive has been going on for years. She stated she doesn’t have all of the documents with her but as she recalls the Goldens originally owned all of this property and when they started deeding off parcels they would say subject to a roadway 40’ wide on the north side for ingress/egress.

Attorney Shively asked if there is any record of the County accepting that.

Ms. Phillips stated that was also a debate because at one time the County put some rock on it and it has been listed on the County Road map but it has never been accepted for maintenance and she has never seen an official road dedication. She stated it is only by deed.

Attorney Shively stated in Indiana you can create a dedication or public right of way by deed where there is evidence it has been accepted by the governmental entity and it is being maintained. He stated it can also be dedicated through use, such as twenty years by the general public. He stated the Board can do whatever they want but he thinks the access question is a serious enough issue that it needs to be clarified before the petition is acted upon and that is his recommendation.

Ms. Phillips stated the Siscos have owned the property since 1975 and have used the road. She stated she would have to go back and trace the records to see when it was first divided. She stated that when the Springview Apartments were constructed, they agreed to dedicate more of an easement to get back to there as well. She stated this has been an issue that no one has answered. She stated Mr. Tubbs obtained a commercial driveway entrance off Golden Drive from the County Engineer.

Attorney Shively stated Mr. Tubbs commented that he would like to have Mr. Sisco do a use and development commitment and stated that right now the County doesn’t require that and so if they entered into a commitment it would have to be a private covenant. Attorney Shively then stated he thinks the better way to handle the right of way situation is to have Mr. Tubbs submit the legal work his attorneys have prepared for him to the County Attorney since the Commissioners is the body that accept roadways. Mr. Shively stated he and Attorney Martin could look at that together. He stated he thinks that is the best way to handle it. He stated changing the zoning on a piece of property from Agriculture to commercial is an important issue and since there is an issue of access across private property.

Mr. Sisco stated his deed states that his pins are located along the right of way and that is a right of way for them. He stated they have a surveyor’s drawing done from 1960 that states that 40’ of that is road way and shows that. He stated that 20’ was off each piece of property when it was originally divided. He stated it is well stated that it is right of way and his deed states that. He stated Mr. Tubbs is trying to isolate half of the right of way and say it is private property and if that is the case then he can’t even leave his property because they have to cross the right of way to get to the right of way on the other side. Ms. Sisco stated all forty feet of that is right of way and they have maintained it, mowed it and put gravel on it for the thirty years that he has lived there. He stated it is his right of way and they can’t keep him from crossing it or using it for any purpose that he sees fit.

Mr. Sisco stated in regards to the sewer/septic issue they said that goes to the Health Department but he doesn’t see where that would restrict him and differences of opinion of what he does there he doesn’t see where that makes any difference as far as the zoning goes because those are issues between him and Mr. Tubbs to work out.

Ascertaining there were no other questions from the Board and being no comments from the Board, the President called for a motion.

Carl Conner made a motion to follow the recommendation of Attorney Shively and continue this matter until they can review the situation with the County Attorney, Charles Martin. He suggested that any information either party has submit to them so they can make it part of their study.

Mike Moesner seconded the motion.

Larry Willis stated right now Mr. Sisco is in violation of his BZA approval for that garage. He stated he would like to see that until this matter is resolved that he can still continue with his business because he would hate to see any small business man go out of business. He asked if Mr. Conner would amend his motion to include that.

Carl Conner apologized for not being clear because he was operating under the assumption that he could continue with his business and he amended his motion to include that the business could continue to operate. Mike Moesner amended his second.

The President called for a vote. The motion unanimously carried.

The Executive Director asked if this is to be placed on the next agenda to which the President stated the motion was to continue it until the attorneys say they are ready.

SUBDIVSIONS FOR PRIMARY PLAT APPROVAL:

PP-04-11 – Engelbrecht Place Sec. 2 By Engelbrecht Dev. LLC, Allan R. Holweger, Mbr. OWNERS: Engelbrecht Dev. LLC, Allan R. Holweger, Mbr. and Joseph & Nichole Engelbrecht. 53 +/- acres located on the W side of SR 261 0’ W of the intersection formed by SR 261 & Peachwood Dr. Ohio Twp. (Complete legal on file.) Advertised in the Boonville Standard September 23, 2004.

Alan Holweger and Jim Morley, Jr., Morley & Associates, were present.

The President called for a staff report.

The Executive Director stated they have submitted the return receipts from certified mail of notice of this meeting to the adjacent property owners with the exception of Keith & Jada Robinson and Robert & Thomacine Bartley. She added the notices were sent to the address on file in the Auditors Office and any approval should be subject to the submittal of either the return receipt or unopened envelope. She stated the property is zoned “C-4” which has no minimum lot area requirements. She added that Single Family Dwellings are allowed in this zoning but must meet the yard requirements for a residence. Ms. Phillips stated there is no flood plain on the property and added that this subdivision contains 87 lots and lots 1-17 are planned to be commercial lots and the remainder are to be residential lots. She stated the street construction plans were approved by the County Commissioners this evening. She stated approval of the plat tonight would need to be subject to INDOT approval for the entrance on SR 261 as well as consent agreements from several utilities where the right of way crosses over. She stated the drainage plans were approved by the Drainage Board. She added that a guard rail would be placed around the retention area. She stated they have submitted a capacity letter from Chandler Utilities for both the water and sewer. She stated the plat is in technical conformity.

Ms. Phillips added that this subdivision does have four access points; two on Vann Road, one on SR 261 and one connecting to Park Place Drive. She stated that entrance will connect to allow traffic from SR 261 to Bell Road.

Guy Gentry stated he knows there have been several discussions regarding the alignment of the entrance on SR 261 and his concern is they approve this plat and then the State says they can’t have an entrance at this location. He asked if that happens will they amend the plat.

Mr. Holweger stated right now the State is saying the entrance is okay. He stated there is still discussion regarding stop lights as well but they won’t know for sure until the State makes up its mind.

Mr. Morley stated this plats reflects the latest information from INDOT.

Attorney Shively stated if they approve this plat subject to INDOT approval and they don’t get it they will have to come back before the Board with a new design.

Mr. Morley stated the residential portion of this property will be the first developed and the entrance off SR 261 probably won’t affect the residential part. He asked if they could bring it in sections.

Attorney Shively stated they could record portions at a time.

The Executive Director stated they could record all of the plat with the exception of the two lots and the entrance.

Mr. Morley stated he just didn’t want the condition of the INDOR approval to hold up the rest of the plat.

The Executive Director stated she would also like to add that the Commissioners have also agreed to upgrade Vann Road sometime in the future.

Gary Michel asked if they are going to remove the sharp S curve to which the Executive Director stated the road is to stay “as is” for now. Discussion then ensued over possible realignment of Vann Road.

Ascertaining there were no other questions from the Board the President called for a motion.

Duane Erwin made a motion to recommend approval of PP-04-11 Englebrecht Place Subdivision Phase 2 with the conditions as stated by the Executive Director. The motion was seconded by Robert Addington and unanimously carried.

PP-04-12 – Freedom Subdivision by REC Group, LLC, Steven Orth, Mbr. 52.8 acres located on the N side of Folsomville Rd. approximately .6 mile SW of the intersection formed by Folsomville Rd. & Ellison Ridge Rd. (E 75), Boon Twp. (Complete legal on file.) Advertised in the Boonville Standard September 23, 2004.

Steven Orth and Mark Chamness, Chamness Land Surveying, were present.

The President called for a staff report.

The Executive Director stated they have submitted all of the return receipts of certified mail of notice of this meeting to the adjacent property owners. She stated the property is zoned Agriculture which requires a minimum frontage of 50’ at the right of way and a minimum frontage of 100’ at the building line. She stated it also requires a minimum of 2 ½ acres per lot since septic sites are required. Ms. Phillips stated there is no flood plain on the property and this is a six lot residential subdivision ranging in size from 4.7 acres to17.8 acres. She stated the Commissioners ruled this evening that no improvements to Folsomville Road would be required. She stated they requested the Drainage Board not require them to submit drainage plans due to the size of the lots. She stated the County Surveyor agreed to this submittal and this matter was on the Drainage Board agenda this evening, however, no one was present at that meeting due to a misunderstanding of the time of the meeting. She stated they are requesting the primary plat be approved this evening with the condition that they go to the next scheduled Drainage Board meeting in order to obtain their approval of no drainage plans being required. Ms. Phillips stated the final septic sites will need to be approved by the Health Department and added they have a letter from Tennyson stating they have an existing water main along Folsomville Road that is capable of servicing the six single family dwelling lots. She stated the plat needs minor corrections but it is in technical conformity with the Subdivision Control Ordinance.

Guy Gentry stated he sees that some of the lots have shared driveways.

Mark Chamness stated that was a suggestion by the County Engineer.

Guy Gentry asked about the entrance for lot 1 to which Mr. Chamness stated there is no restriction for the driveway on lot 1.

The Executive Director stated lots 2 & 3 share a driveway; lots 5 & 6 share a driveway and lot 4 is to be located as close as possible to the southeast corner of the lot.

Guy Gentry stated the safest driveway would be lot 4 as far as he is concerned. He commented the area is very hilly.

Mark Chamness stated the County Engineer has looked at this extensively and this is what he feels to be the best solution.

Robert Addington questioned the size and location of the existing lake.

Ascertaining there were no remonstrators present and being no other questions from the Board, the President called for a motion.

Larry Willis made a motion to approve PP-04-12 Freedom Subdivision with the condition they receive Drainage Board approval. The motion was seconded by Robert Addington and unanimously carried.

OTHER BUSINESS:

Victoria Village PRUD – Building envelopes

Tom Kimpel, Attorney representing Victoria Manor, LLC was present. He stated they are present this evening for clarification and direction on how to proceed with an existing plat. He stated as part of the plat there is a footprint on each lot for a house. He stated what they would like to do is build houses on the lots that are different than the existing footprints. He stated they don’t want to change any lot lines and they don’t want to change any roads or easements or any other part of the plat. He stated they are just asking that they be allowed to vary from the recorded footprint.

Attorney Kimpel stated what they need the Board’s assistance on is how to proceed. He asked if they can just have the Executive Director issue building permits even though the houses don’t fit the footprint or do they proceed with a replat of the subdivision to show the change. He stated he has spoken with Ms. Phillips about this as well as Attorney Shively. He stated they all thought it best to present this to the Board for some direction on how they would like them to proceed.

He stated he would like to point out that under the existing ordinance for PRUDs where there is a minor change, the Executive Director may approve minor plan changes in regard to size of buildings or location of buildings, etc. as long as the changes are not more permissive or less restrictive than the final detailed development plan which was approved by the Plan Commission. He stated obviously they feel that they should be able to get permits even though the footprint is somewhat different than what is on the PRUD and it would be up to the Executive Director to make that determination.

Mr. Kimpel stated in the alternative the only other solution is to do a replat and go through that process. He stated on that issue he thinks there are two potential procedures that can be followed under the State Statute. He stated one of them is getting all of the property owner’s signatures and approval and the second is filing a petition for a replat and setting it for public hearing and notifying all of the property owners and appearing before the Board.

Attorney Shively asked if all they are doing is changing the footprint. He then asked if they know what the footprint is going to look like.

Discussion ensued over the old versus new footprint.

Attorney Kimpel stated they had their engineer develop a non-descript envelope. He stated the envelope is exactly what is allowed for yard requirements for a single family dwelling. He stated the original plat shows a building footprint for attached houses and what they are finding out is that large single family homes are selling and the others are not. He stated in that respect they will be lessening the density of the subdivision.

Guy Gentry asked if they have talked to any of the homeowners in the subdivision about this to which Mr. Kimpel stated they have talked to every homeowner about this and everyone agrees to this with the exception of one homeowner who lives in Texas and they haven’t been able to secure his signature or consent.

Carl Conner asked if he understands correctly that if they want minor changes they could be brought to the Executive Director to approve but if they go to the replat it would take a lot more time.

The Executive Director stated her question is that in a PRUD you are supposed to show either the building layout or the envelope and that gets recorded. She stated it isn’t like a regular subdivision where there is a lot and they have to meet yard requirements. She stated this plat was recorded with the footprints and people have purchased the lots and have built homes there. She stated her question is can she approve a change like this with out the OK from all of the lot owners who have purchased a lot thinking that was how the subdivision was to be constructed.

Guy Gentry stated some of the original lot owners have built according to the recorded plat and perhaps would have liked to build something different but they had to comply with the recorded plat.

Ms. Phillips stated that is why she asked them to come before the Board this evening.

Carl Conner stated Mr. Kimpel has stated that all of the owners other than the one are in agreement.

Attorney Kimpel stated that other lot owner hasn’t said he won’t agree he just hasn’t agreed yet.

Attorney Shively read the ordinance regarding to PRUD’s to the Board. He stated if this is more permissive or less restrictive then they have to through the process.

Guy Gentry stated this is more permissive in his opinion.

The Executive Director asked if they have to go through the process with the whole subdivision will all owners have to sign or just the lots they want to change.

Attorney Shively stated just the lots that change. He stated the Statute that requires the sign off by all of the lot owners is the statute that comes into play because of a 52 year old Supreme Court decision that says replatting is the same as vacating and it has to do with lot lines. He stated he thinks if the Executive Director makes the determination that this is more permissive then they need to redo the phases that show the new envelope.

Attorney Kimpel stated the way he looks at it is if as long as the structure is not encroaching on the yard requirements and it is a single family house it is not more permissive. He stated some of the footprints were for duplexes and now they only want single family dwellings so they are cutting down on the density.

Attorney Shively stated “permissive” is not an objective word.

Larry Willis asked if they are changing any lot lines to which they stated they are not.

Attorney Kimpel stated if they leave it up to the Executive Director to look at and then if she feels that it is more permissive than it should be then she would have the authority to say no but if in her review of the plot plan felt it was a minor change then she could approve it.

Discussion ensued over the required and allowed square footage of buildings.

The Executive Director stated she thinks they should do an amended plat to record in order to show the new envelopes.

Attorney Shively stated that is her call and if Attorney Kimpel’s client doesn’t like that call then they can appeal staff decision to the Board of Zoning Appeals.

Attorney Kimpel stated they just want guidance because they have about three people who want to start construction and they are going to do what ever they are told to do.

Attorney Shively stated this Board can do whatever they want to do but the ordinance says the Executive Director makes the determination.

Guy Gentry stated he would be leery of giving permits that he knows doesn’t fit inside a recorded envelope and he would hope that Victoria would learn from this mistake.

Attorney Kimpel asked if they would have to file a new petition.

Attorney Shively stated what they would do is an amended PRUD of those lots.

Ms. Phillips stated she would check that plat against the existing plat and then record it.

Mr. Kimpel asked if they would have to give notice and go to a public hearing.

Ms. Phillips stated they would turn in an amended secondary plat of just the lots they are changing and then she can determine they are not less restrictive or more permissive and then record the plat and cross reference it to the original plat and then it will be done.

Attorney Kimpel stated he would prefer that as well so there won’t be any questions later on.

Zoning Violation – William & Jacquelyn Pemberton – cabin located on property without proper permits – 2755 Turpin Hill Road

The Executive Director stated this matter has been taken care of and the permits have been obtained.

EXECUTIVE DIRECTOR BUSINESS:

The Executive Director introduced Angela Fehr to the Board as the new office employee.

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Ms. Phillips stated Bernardin and Lochumuller has submitted two bills for payment for the Subdivision Control Ordinance update. She stated one is $1,004.70 and the other is for $2,330.80. She stated they are pretty close in getting the ordinance done.

Attorney Shively stated he has reviewed what changes they want to make with the enabling statutes and they are ready to go forward.

Carl Conner made a motion to approve payment of the two claims. The motion was seconded by Larry Willis and unanimously carried.

* *

Duane Erwin made a motion to authorize the Executive Director to terminate the employee discussed during the Executive Session. The motion was seconded by Mike Moesner and unanimously carried.

* *

Guy Gentry stated he and Larry Willis set in on the interviews that were held before they hired Angela Fehr. He stated there were several good candidates and he sees no need to re-advertise for the coming opening. He stated they had narrowed the list of candidates down to 3-4 possibilities and he would make a motion to authorize the Executive Director to hire a new employee from that list. He stated that should the first choice decline the position then she could make her second choice from that list. The motion was seconded by Larry Willis and unanimously carried.

Being no other business the meeting adjourned at 7:45 P.M.

___________________

Guy Gentry, President

ATTEST:

_______________________

Sherri Phillips

Executive Director