PORTER COUNTY BOARD OF COMMISSIONERS
REGULAR MEETING
NOVEMBER 4, 2003
10:00 A.M.

The regular meeting of the Porter County Board of Commissioners convened at 10:00 a.m. on Tuesday, November 4, 2003 in the Commissioners' Chambers of the Administration Center.

Those present: Commissioners David Burrus, John Evans and Bob Harper and County Attorney Gwenn Rinkenberger.

President David Burrus called the meeting to order with the Pledge of Allegiance.


WELCOME NEW COMMISSIONER, ROBERT HARPER

Com. Burrus, "We have a full agenda this morning but before we begin I would like to recognize and welcome our new Commissioner member, Bob Harper. Welcome aboard, Bob."

Com. Harper, "Thank you."

APPROVAL OF CLAIMS

Com. Evans moved to approve the claims of November 4, 2003, Com. Harper seconded, motion carried.

APPROVAL OF PAYROLL

Com. Evans moved to approve the payroll of October 20, 2003 and November 3, 2003, Com. Harper seconded, motion carried.

APPROVAL OF MINUTES

Com. Evans moved to approve the minutes from September 2, 2003, Com. Harper seconded, motion carried.

PRESCRIPTION DRUG PROGRAM RECOMMENDATION PRESENTATION
Mike Anton, Anton Insurance Agency

Mr. Anton, "Thank you, and I would like to personally welcome Commissioner Harper and I look forward to working with you. I was instructed by the attorney to keep it short, but that is difficult for me as you guys well know. It is no secret that medical inflation has been in double digits for the past decade and one of the significant components of that is the medical inflation is associated with the drug card programs. Pharmacy has increased that medical inflation between 25% and 30% depending on who you ask. So it is during the past decade we attempted to keep a watch as to availability of programs that might benefit the county without detracting from any benefit structures and without creating any inconvenience to county employees. I would note that during the past ten years there has been three recommended changes. We are here this morning to recommend another change. Before I get into the specifics I would like to say this change we are going to recommend will come seamless to county employees as there will be no change in services offered. Prescription drugs as prescribed by doctors will go unchanged as far as any county employee is concerned. So what we are talking about specifically is Pharmacy Benefit Managers. Currently the County has a contract with Express Scripts which is a PBM, or Pharmacy Benefit Manager. That contract has been in place for approximately five years. Because of this cost to the County ever increasing, in fact, we went back and looked and in 1998 the County's pharmacy drug card program had a total cost of about $292,000.00 based on 510 lives during that time. Currently based on a current enrollment of 520, we are running about $600,000.00 projected for the year 2003. So in a five year period we have basically doubled our prescription drug card cost. That is why we pay a lot of attention to this particular line item. There are considerable issues related to the pharmacy program. In our discussions with Stewart C. Miller, and for Commissioner Harper's knowledge, that is our third party administrator out of Lafayette. In our ongoing discussions with them and our concern about this particular line item, it was discovered there was a group out there called AELRX that does benefit consulting and we contacted these people and asked them to take a look at the prescription drug program that is offered by Porter County Government and if there was anything that could be done in terms of improving our cost issues. They came back and gave us a presentation and an analysis of the County's prescription drug program and the PBMs. I will give you a copy of that report. That report is fairly comprehensive. I think in the beginning of the report is some boilerplate information that I won't go through but as you go through you will see there has been an in-depth review of the prescription drug benefit for the county. If you go to the last half, you will see this is the result of the comparative study of other PBM's with the county's current provider of Express Scripts. Without going through all the proposals that were reviewed, I would bring your attention to the one that is headed by EHS. That stands for Eckerd Health Systems. Eckerd isn't a major known name in this particular part of the country, but in the south it is huge as pharmacies. As you look in those columns on page 17, you will see we are in the red with the current situation with Express Scripts. I am going to point out the significant features of the relationship and that is we are currently getting a 13% discount on the average wholesale price for our prescription drugs. You will see the proposals are 14% from the other PBMs. So we would benefit by a 1% deeper discount. If you drop down to the next line is says dispensing fees for per rx. That is the fee we pay for each script written and filled. Currently we are at $2.50; Eckerd would be at $2.20. You see there is an administration fee common to these programs. Currently we are paying $.50 per script. The Eckerd proposal would be at $.35. That runs true as we go down through the list for services provided. A key issue is that currently we are not receiving any rebates from the PBM. And rebates are those deeper discounts earned by volume that a PBM gives through the drug manufacturers. We are not eligible or not making ourselves eligible for any of those through our current provider. You will see under the EHS that their listing on $1.35 and $4.40 rebates per script that would be based on volume. The upshot of this is that very simply, for no cost to the county and a potential based on our previous history, so it is not guaranteed because our history can change with future purchases, will result in a $50,000.00 savings to the county if you were to choose the Eckerd Health System proposal. Now as an inducement to accepting that, EHS has agreed to credit for the first month $1.75 per member just as a transitionary incentive because we do have some from our administrative side some issues we have to deal with that are going to take a little extra effort on the part of some county employees through the Auditor's office and that sort of thing. That equates out to be roughly $2,000.00. I will open it to any questions you may have but our recommendation is that you would consider accepting the proposal from EHS and accept that with a transition date of 1-1-04 so we would have a seamless transition for the calendar year."

Com. Evans, "You said EHS is very active in a lot of stores in the South, so that is not going to change anything for our employees; they can go to any drugstore and give them their card and they can still get their prescription filled?"

Mr. Anton, "Right. And I don't want to confuse that because EHS is a separate operation to the Eckerd Drug Stores in the South and is nationwide. You are right, it will have no effect to the county employees because they will go to the same providers that they have gone to all along. Nothing changes there. If you go down South, if you go to Florida or Georgia, you can find those stores all over the place."

Com. Burrus, "To emphasize again, our people can go to the same stores; the same sources?"

Mr. Anton, "Absolutely. It is absolutely seamless to the employees. We would obviously have a new card that would come out and there will be a new kit that would be announced to each employee and they would each get a new prescription drug card. Other than that, nothing changes."

Com. Burrus, "I was in on some of these discussion with Mike and this provider, and I had a couple of notes of my own view I wanted to share on this. For one thing, the prescription costs tend to be somewhat of a shell game. Whenever you might see a savings on one area, and unbeknownst to somebody in our position, they might in turn raise the cost in other areas so it is very difficult to analyze the entire spectrum of prescription costs. It is difficult not only to analyze but make comparisons with other providers, too. AEL is in the business of analyzing prescription costs and they have done so and given us this matrix which shows what we are paying now versus what could be expected from other providers. The conclusion they came up with is that we can do better with the Eckerd system that Mike has proposed and the tune of savings is around $50,000.00. He stressed, and I want to stress the fact this is not going to change or impact the location where our people buy prescriptions, that would remain exactly the same. This is an administrative proposal. The last thing is if this is going to be a savings to us, then how much are we going to pay for this. Surprisingly the answer is nothing because of the fee. This consultant is paid through the marketing budgets of the providers. So therefore it is virtually one of those few, rare win-win situations where we do stand to save approaching 10% almost of our prescription costs and not have to lay out any cash for it. From our point of view, we have struck onto something that is worthwhile."

Com. Evans, "The analysis is pretty good, going back in history rather than trying to pick out certain drugs and then saying let's see what we pay here. Lets base it on our history of use that we already have so I agree. It is a no brainer to say we are going to save $50,000.00 simply by making a vote so I will make the motion."

Com. Evans moved to approve the drug benefit offered by Eckerd Health System, Com. Harper seconded, motion carried.

Mr. Anton, "We will get it instituted and we will do it as seamlessly as possible and I would certainly say this that if anybody does experience some kind of an issue, feel free to call Bob or I."

REQUEST FOR QUALIFICATIONS FOR PROPOSED PORTER COUNT HAZMAT BUILDING-
Russ Shirley, Hazmat director

Com. Burrus, "This was delayed or tabled from our last meeting being cancelled. Becky has the proposals ready. If you open them and pass them down, I will read the proposals. Our procedure will be to open and see if there is a price we can read and then I will turn them over to Russ for evaluation. When he is able to, he will bring them back with his recommendation or if not we will take them under advisement until our next meeting. The first one is from Morton Building and their place of business is located in Wanatah, Indiana. This is for the design\build of a post frame building for EMA."

Mr. Shirley, "There wont be any pricing information in there; just qualifications."

Com. Burrus, "The second one is from Maca from East Chicago, Indiana. The third proposal is from Chester, Inc., US Highway 30 in Valparaiso. The fourth one is from Trant Construction, Woodlawn Avenue in Griffith, Indiana. So those are the four interested parties that would be proposing the design/build service for the Hazmat Building."

Mr. Shirley, "I think it would be best if we held off until the next meeting."

OFFICE HOLDERS/DEPARTMENT HEADS

Application for IDEM Rule 13
Kevin Breitzke, Surveyor

Mr. Breitzke, "Well, in golf, the Rule 13 is play it where it lies. With this Rule 13 as IDEM proposed, it is an unfunded mandate as Dave and I have discussed over the last couple years. We have tried to figure out ways to manage this issue through using our own resources with possibly the exception of one. Let me explain that what we are dealing with is basically the Clean Water Act precipitated the National Pollutant Discharge Elimination System. In time, the larger cities like Indianapolis and Chicago, became Phase I cities where they had to impose a series of six minimum control measures for storm water quality. They were complaining that donut holes were left throughout the country so they went to the smaller communities surrounding them and it was decided by EPA that we would treat the urbanized areas, those are areas of 1.000 people or more per square mile. Or universities or prisons or etcetera where large populations were where large amounts of storm water run off could be predicted and expected. The map I have here shows what Porter County would be responsible for in the orange. Because the other entities, Portage, Valparaiso and Chesterton and Porter, would have their own MS4 operations. And MS4 stands for Municipal Separate Storm Sewer Systems. They are responsible for those issues. Two of our conservancy districts have in their charter responsibility for storm water management, those being Twin Creeks or the South Haven area and Valparaiso Lakes Area Conservancy District. The third conservancy district, Aberdeen, which is Natureworks, only has two functions as a conservancy district leaving them our responsibility. Likewise, there are a couple communities that are conditionally exempt those being Beverly Shores, the Pines and Burns Harbor. They have regulated drains of which the county is responsible for that storm water conveyance. What we are dealing with is any conveyance in the MS4 that deals with man made ditches, channels and streams, curbs, even streets haven't considered a conveyance of storm water. There are six minimum control measures as I mentioned. The first is public education and outreach. The second is public involvement and participation, the third is illicit discharge protection and elimination; fourth is construction site, storm water run off control; fifth is post construction storm water management and the sixth is pollution prevention. The first two I mentioned, with the assistance of the Northwest Indiana Regional Planning Commission through watershed planning that we have been doing for the last two years through and EPA grant, we brought all the communities in Northwest Indiana together to see if we could do this on a region wide basis as far as the education, outreach and participation. They put together a packet at minimal cost and that was part of what I hope was being considered for the CEDIT monies to help enhance our participation. Its not totally necessary, our fulfillment of our obligation to our neighbors, that is the towns and cities, Chesterton, Valparaiso, Portage and Porter who will be paying and participating in this as well as the conservancy districts, have committed to participating the public outreach and education. We can help as a county and keep the cost down and help with that outreach as well as they will help us with the participation. The illicit discharge requires the development of a storm water discharge map on location of out falls where this water is going. We have largely done that; we continue to do that and something to bear in mind, this program will fall over about a five year period. The commitments are spread out over a long term. The construction site storm water run off control is in line with another unfunded mandate that is coming our way. Currently, IDEM and DNR do erosion control on our sites. By the end of next year, that will no longer be the case and we'll need to think about having a local agency take responsibility for managing and dealing with the erosion control issues. We will no longer be able to call Department of Natural Resources as we have to date to manage that. That will be the beginning of 2005. One of the things we will have to consider is the creation of a number of ordinances dealing with erosion control and storm water management. Here again, regionally, the technical heads, along with assistance of attorneys from some of the sanitary sewer districts have been discussing these ordinances and seeing what is applicable and practicle and where we can assert what is called best management practices or BMPs. They have a lot of initials, this is government. The best management practices are meant to best suit our type of construction, what works best for our contractors in our communities. So we will probably have slightly different ones from Valparaiso to Porter County and the urbanized areas. But we are on the fringe of our cities and we really try hard to work with the municipalities and the cities toward that end. So we would like to see a cooperative effort. Our choice here was to either go to a countywide effort or to minimize the impact by strictly holding to these urbanized areas such as I have marked out. We have somewhat restricted our liabilities. I think with that, it is such a long agenda, I will leave that to questions."

Com. Burrus, "First question based on your proposal is what is the action required on our part; what kind of time line are you looking at?"

Mr. Breitzke, "As I told you a month or so ago, today the Notice of Intent must go out. Today is the deadline and Part A of the Storm Water Quality Management Plan basically given a general agenda for the next five years of cost, and bear in mind most of these costs can be absorbed in our own manpower and within our existing budget. However, public outreach, education, participation, this is best left to people who can use a multiple format; who are educators such as the NIRPC staff."

Com. Burrus, "This Notice of Intent has to do with the first two items only?"

Mr. Breitzke, "No, it will deal with all; it is the process and it is a five year process."

Com. Evans, "So what exactly does it bind us to and how much money?"

Mr. Breitzke, "That is yet to be seen. Really, I wish I had a definitive answer at this time. County surveyors are still arguing with IDEM over specifics. Right now we need to commit ourselves to is doing the public outreach and the public involvement with NIRPC, that involves about $10,000.00 per year or more."

Com. Evans, "We have already dedicated $20,000.00 of CEDIT money towards this project."

Mr. Breitzke, "Right. We can use that additional. I am trying to leave a gap there because in time we will need to do some testing and have some expertise toward water testing so we show we have done some measurable improvement. We may need some legal analysis so a little bit of cost is left there on the balance."

Com. Evans, "The money we have set aside there is for the education portion, what are the ramifications if we don't go any further? I hate being told we have to do this and we have to do it today or we are not going to get what?"

Mr. Breitzke, "I totally agree with you and I resent it, too all along. The penalties are if they impose the penalties and fines is $25,000.00 a day for noncompliance and possible imprisonment."

Com. Evans, "If we don't sign the contract, we are not complying?"

Mr. Breitzke, "Basically, yes. It is frustrating for me, too."

Com. Harper, "Who is requiring this be done?"

Mr. Breitzke, "The Environmental Protection Agency, IDEM, through the state."

Com. Harper, "Okay, and exactly what are they requiring?"

Mr. Breitzke, "A commitment that we will make an attempt to follow through with creating ordinances."

Com. Harper, "What kind of ordinances?"

Mr. Breitzke, "Erosion control and storm water management. Now bear in mind some of this we already do."

Com. Harper, "What kind of outreach; what are you going to educate the public on, I don't understand that exactly."

Com. Burrus, "I think the focus on this thing is non-point source of pollution. In other words, run off water that gets polluted through multiple sources."

Mr. Breitzke, "It is something as simple as statsling drain, telling people not to dump waste product directly into the storm sewer systems as they are conveyances to our rivers and lakes; educating the children. It is similar to the recycling education efforts of the '70's that are ongoing right now. Fundamentally they are trying to get the contractors to go to different practices on site. They are restricting site disturbances, anything down to an acre will now require FTDS consideration. This is a national phenomenon, we are not being singled out or picked on."

Com. Harper, "I agree with Commissioner Evans. Has our attorney been provided with this and how do you know we are required to do this and where did you get this information?"

Mr. Breitzke, "The state has been working with us for five years now."

Com. Harper, "I understand, I am not questioning that they did, but did they give you documents?"

Mr. Breitzke, "Yes, we have state statutes."

Com. Evans, "Why does it have to be done today?"

Mr. Breitzke, "Well, the Notice of Intent is due today. This is something Dave and I have been discussing for some time."

Com Evans, "If we write all these ordinances and, don't get me wrong, I think the education portion is a very good idea, but I have a hard time with telling people on their own property what they are going to do as long as they do it in a legal manner and they are not polluting. Who is going to enforce the ordinances?"

Mr. Breitzke, "That is why we design the ordinances so that we have some kind of empowerment to enforce. I am just as frustrated. The County Surveyor's Association has been very frustrated with this whole process. We were stuck with basically, it came down to they said the county surveyors or the city storm water utility or sanitary facility would be responsible for pursuing this."

Com. Harper, "I would suggest at least we go on with the rest of the agenda, take a break, and give the attorney at least a chance to look at what this involves."

Com. Burrus, "I think that makes sense, but I want to make one other comment on this. Kevin what was the date of the statute, this thing has languished and just recently been defined, is that correct?"

Mr. Breitzke, "They kept pushing the date back, they finally had their reading and finished it up in August and set the deadline for November 4th for the Notice of Intent letter."

Com. Evans, "What about our neighbors in the municipalities?"

Mr. Breitzke, "They have signed it. Portage has turned theirs in already. I talked to IDEM last night just to find out where we were all at with this."

Com. Harper, "I would like to call Portage to see if they could fax us a copy of what they turned in."

Mr. Breitzke, "It is identical."

Com. Burrus, "Is it a form letter?"

Mr. Breitzke, "Basically."

Atty. Rinkenberger, "But is a Notice of Intent that binds the County to follow through with those six items and we don't have the money. . . we cant say if it is needed today we have the money to do that. So, that is the problem I have."

Dave Schelling, "I have a quick question. Half the roads in Aberdeen are privately maintained and you have nothing to do with it, do we get charged with doing something out there as a private road?"

Mr. Breitzke, " Not with the private roads, but the storm water management as far as the households are concerned, I am sure."

Com. Burrus, "I think the comment Bob made is the most appropriate. I think however long it takes we need to satisfy ourselves and that we are taking a step here that is consistent with what we want to do. Personally, I would be prepared to take a risk and turn this thing in late if we have to."

Mr. Breitzke, "Or I could turn it in today as an incomplete application, that is not a problem for me. But I think we need to turn it in today even if it is incomplete."

Atty. Rinkenberger, "Yes, I don't have a grasp on it yet; who's mandating us to do it and how they can force us to do it and what are the ramifications if we sign it and we can't do it."

Com. Evans, "Why don't you send it back and write on it 'under review'?"

Mr. Breitzke, "Because wisdom tells me that it's government, so I should turn in something."

Com. Evans moved to approve Mr. Breitzke return the application to IDEM and marked pending investigation, under review, Com. Harper seconded, motion carried.

PROPOSALS FOR 100 SOUTH PROJECT TO RELOCATE DITCH
David Schelling, Highway Engineer

Mr. Schelling, "I have four quotes from contractors. We have a project on 100 South
right near the Norfolk Southern Railroad. We need to relocate a ditch so we can widen out the railroad crossing approach. That crossing does have gates and flashers now and we previously had a stop sign there and we want to make it as safe as possible for the public. To do that, we need to get this ditch out of our way so we can widen the road. We contacted six contractors; four responded and the ones that didn't were Reith Riley and Brown, Inc."

Com. Burrus, "We have those here then that did respond. The first contractor is GE Marshall, Inc. of Valparaiso. The base bid price is $38,500.00. We will read the base bid only."

Mr. Schelling, "We requested that the people have the hydro seeding as an option for us removed just in case it was a situation where it was too late in the year to actually put it down."

Com. Burrus, "The base price was $38,500.00 and the alternate dealing with the hydro seed is $3,100.00. The second quote is from Derflinger and Son of Medaryville, Indiana. Their price is $5,000.00 base bid with $1,000.00 for seeding and mulching."

Com. Evans, "Did everyone understand the scope of the work?"

Mr. Schelling, "I think so."

Com. Burrus, "The third contractor is Misch Trucking and Excavating of Wheatfield, Indiana. Their base bid is $17,800.00 and the hydro seeing price is $2,500.00. fourth and final proposal is from Kankakee Valley Construction, Inc. from LaPorte, Indiana with a base bid of $30,000.00 and their hydro seed price is $2,900.00. David, if you would take these and evaluate them and we will have a second session here this morning where we can address these if you are prepared. If not, we will do it at our next meeting."

Mr. Schelling, "For your information, my estimate was around $20,000.00 so there is a wide range."

APPROVAL OF NEW HIRE FOR EXPO CENTER ASSISTANT MANAGER DUE TO JUDY HERZOG'S RETIREMENT

Com. Burrus, "Lonnie Steel has informed us that one of his employees, Mrs. Judy Herzog, has retired and he is in need of replacing Judy and her position as assistant manager. He has advertised that internally and externally. He came in with a number of proposals or recommendations and he has pared it down to two. He has asked me also to interview these two people and I concurred with his recommendation who is Mr. Michael Thomas. Mr. Thomas' cover letter and his resume is attached here. He has quite a background and he has agreed to accept the position at its current salary. So having talked with Lonnie and having talked with the individuals that were interviewed, I would make the recommendation that we authorize the hiring of Mr. Michael Thomas. Since Lonnie is not here, if there are any questions, I will glad to try to answer those."

Com. Burrus moved to approve the hiring of Michael Thomas,

Com. Evans, "I know that he did extensive research and this is a position he depends upon greatly and he will be an asset to him."

Com. Evans seconded, motion carried.

COMMISSIONERS REPORTS

North District: Com. Evans

1. Approved copy of the Memorandum of Agreement for the Transfer of Maintenance for the Proposed Midwest Steel Highway Industrial Complex Access Roadway to the City of Portage and Porter County.

Com. Evans moved to approve, Com. Burrus seconded, motion carried.

2. Jackson Minor Subdivision #2523-C-1 Road Agreement, located on the west side of CR 400 East between US 6 and CR 700 North. Offer to contribute $750.00/lot, for a total of $1,500.00. Owner and subdivider is Lydia Jean Juhlin.

Com. Evans moved to approve, Com. Burrus seconded, motion carried

3. Papillon Estates Acceptance Form and Maintenance Letter of Credit #734 from Centier Bank in the amount of $65,000.00. Recommend approval.

Com. Evans moved to approve, Com. Burrus seconded, motion carried

4. Letter to William Proud, INDOT concerning US 6 Reconstruction Project between
Airport Road and SR 149. The letter requests changes in the proposed sidewalks at intersections as well as adding pedestrian signals to the new signals at US 6 and McCool Road and at US 6 and Juniper. These items were requested at the final field check on October 22nd. This letter from the Commissioners will help accomplish these changes.

Com. Evans moved to approve, Com. Burrus seconded, motion carried

5. Utility Agreement for NIPSCO to replace and set 6 new poles on Calumet Avenue. Recommend approval.

Com. Evans moved to approve, Com. Burrus seconded, motion carried


Center District: Com. Harper

1. Glenwood Hills Subdivision Performance Letter of Credit is a cashiers check from Bank One in the amount of $3,000.00. Recommend approval.

Com. Harper moved to approve, Com. Evans seconded, motion carried. Bridlewood Phase "C" Bridlewood Lane Acceptance Form. Recommend approval

Com. Harper moved to approve, Com. Evans seconded, motion carried

3. Emerald Ridge Subdivision, Phase B, Performance Letter of Credit #2003-ILC-493
from Bank Calumet in the amount of $33,000.00. New expiration date is January 16, 2004. Recommend approval.

Com. Harper moved to approve, Com. Evans seconded, motion carried

4.Emerald Ridge Subdivision, Phase C, Performance Letter of Credit #2003-ILC-494
from Bank Calumet in the amount of $31,000.00. New expiration date is January 16, 2004. Recommend approval.

Com. Harper moved to approve, Com. Evans seconded, motion carried

5. Center Minor Subdivision 1528-D-1 Road Agreement , located on the west side of CR
50 West between CR 450 North (Ransom Rd) and CR 550 North. Offer to contribute 750.00/lot for a total of $750.00. Owners and subdividers are James E. and Beverly Ann Hutton. Recommend approval.

Com. Harper moved to approve, Com. Evans seconded, motion carried

6. Center Minor Subdivision 1938-D-1 Road Agreement, located on the west side of Sturdy Road between Division Road and Cr 100 North. Offer to contribute $750.00/lot for a total of $750.00. Owners and subdividers are Robert and Teri Gray. Recommend approval.

Com. Harper moved to approve, Com. Evans seconded, motion carried

7. Utility agreement with NIPSCO with regard to the location and installation of one
40' pole and two downed guy wires on the east side of CR 100 West approximately 55 feet from Blarney Stone Drive. Recommend approval.

Com. Harper moved to approve, Com. Evans seconded, motion carried

South District: Com. Burrus

1. Accept quotes for CR 100 South Ditch Relocation Project and possibly award work.

Com. Burrus moved to approve, Com. Evans seconded, motion carried.

2. Prairie Crossings Subdivision Road Agreement, located on the southwest corner of CR 100 South and CR 500 West. Offer to contribute $900.00/lot, for a total of $171, 900.00. Owner and subdivider Prairie Crossings of Porter County LLC.

Com. Burrus moved to approve, Com. Evans seconded, motion carried

3. Porter Minor Subdivision 1242-A-1 Road Agreement, located on the north side of CR
200 West between CR 200 South and CR 150 South. Offer to contribute $750.00/lot for a total of $3,000.00. Owners and subdividers are Myron N and John J. Tyler. Recommend approval.

Com. Burrus moved to approve, Com. Evans seconded, motion carried

CORRESPONDENCE

Veteran's Service Officers monthly report for October 2003 is on file.
Weights and Measures monthly report for October 2003 is on file.
Clerk's monthly report for September 2003 is on file.
Court Security monthly report for September 2003 is on file.
Building Department's monthly report for September 2003 is on file.
Treasurer's monthly report for September 2003 is on file.

Request for transfer of funds-Commissioners' office

Fund 01.30$500.00from acct 3160Vet Services
Into acct 3410Official Bonds

(This is to be entered into the record. To pay official bonds. This was approved by Council October 28, 2003)



Request to use Courthouse grounds for community celebration of Holly Days/Live Nativity

Com. Evans moved to approve the use of the courthouse grounds on December 5, 6, 13, and 20, 2003 for the community holiday celebration, (Holly Days and Live Nativity), contingent upon the standard insurance requirement, Com. Harper seconded, motion carried.

To be entered in the record: The request to use the courthouse for Trick or Treat Fun Night was approved by telephone due to the Commissioners' meeting of October 21, 2003 being cancelled.

Request by VU Student Christa Peters of Aliveness Project to use courthouse grounds in honor of World AIDS day December 1, 2003

Com. Evans moved to approve with the correct certificate of insurance, Com. Harper seconded, motion carried.


COMMISSIONER'S REPRESENTATIVE TO PLAN COMMISSION; COM. HARPER

Com. Burrus, "As you know the Commissioners have a reorganization responsibility every year in January at our first meeting and some of those responsibilities will be reorganized at that time. Of an immediate nature we felt it was appropriate to address the Commissioners' representative to the Plan Commission. As an interim representative, I have been attending those meetings and we have discussed this individually and believe that with Bob on board and with his interest in planning issues that we would make the recommendation that Bob Harper be assigned as the Commissioners representative to the Plan Commission."

Com. Evans, "I think it is a very big part of the responsibility of a Commissioner employed in this county and we are glad that Bob has an interest there and we think he is going to be a definite asset."

Com. Harper, "I would be glad to serve there and I appreciate that appointment."

Com. Burrus moved to approve the appointment of Bob Harper to the Plan Commission as the Commissioners' appointment, Com. Evans seconded, motion carried.

COMMISSIONERS' APPOINTMENT TO NIRPC; COM. BURRUS

Com. Evans, "The other appointment is the Commissioners appointment to the NIRPC Board; that was another board that Larry Sheets filled for us and was one of the major ones we kind of let go by the wayside during his illness because there simply wasn't enough ways to divide the two people that were here to cover it. With Commissioner Harper on board, now I think that it would be an adequate time to put a member there."

Com. Evans moved to nominate Dave Burrus to the appointment on the NIRPC Board as the Commissioner's appointment, Com. Harper seconded, motion carried.


RETIREMENT OF COMMISSIONERS' ADMINISTRATIVE ASSISTANT

Com. Burrus, "Another announcement we have is the resourceful assistant in our office, Linda Walker, has announced she will be retiring at the end of the year. We want to recognize Linda for her service as she has been invaluable but at the same time we can also appreciate her desire to have more free time to enjoy her family; especially her grandkids. Along those same lines, the notice has already gone out and we will be following the traditional required notification advertisement procedures to find a similar replacement as we go into next year. The experience we have had here the last year with Larry's illness, this office has become very very close and depended upon one another. Linda, we wish you the best. I think that date will be the first of January. Thank you again."

PLAN COMMISSION MEMBER VACANCY FOR PUBLIC

Com. Evans, "One thing we should mention is there is a vacancy currently exists on the Plan Commission for a member and the public should send in applications if anyone is interested. The member we lost is Michael Herzog and he is from Union Township so that area should be on the alert and anyone interested should get their application to us."

Com. Burrus, "I think we should ask the newspapers to make that announcement and to put it out like they normally do so we can have full distribution."

Atty. Rinkenberger, "After Plan Commission, can we go back; I have some suggestions as to what board action you can take on Kevin Britzka's Rule 13?"

Com. Burrus, "Yes. We will now take a ten minute break and reconvene for the Plan Commission."

Com. Evans moved to recess for a 10 minute break, Com. Harper seconded, motion carried.

PLAN COMMISSION SESSION-Rezone, R1 to PUD, Accent Homes, Owner, 1st reading

Com. Burrus, "Is there anyone here that would like to speak in favor of the development?"

Mr. Etzler, "I am Todd Etzler with Burke Costanza and Cuppy of Valparaiso, 57 North Franklin, Valparaiso, Indiana and this is John Krempke with Duneland Group and I have with us one of the principals of the developers, Tim Henderlong. This is a request for establishment of an ordinance for a Planned Unit Development in Portage. It has been properly noticed for today; however, just five minutes ago, I found out that the city of Portage has passed a resolution concerning this. We had no idea that occurred and they want us to show how this development would comport with the Portage zoning code if it were in Portage. We would like to request a continuance this morning so we may prepare the appropriate information necessary to respond to that request."

Com. Harper, "Well, these people have come to make their comments so whatever we do I think we should hear their comments this morning."

Com. Evans, "I think we could hear those that are to speak both for and against it and continue it with the public hearing portion still open and allow you then to reintroduce that at the next hearing."

Com. Burrus, "Would that be appropriate to have two public hearings on that?"

Atty. Rinkenberger, "That would be the prudent way to go. I would caution you about the time frame we work under and under our own PUD ordinance and not take any action because we have serious problems for this board, we need to make sure that we take action. . . ."

Com. Evans, "We have ninety days. . . "

Atty. Rinkenberger, "What's our deadline, Bob, do you know?"

Mr. Thompson, "September 10th is when the Plan Commission did forward it to the Commissioners and the certification letter did come and it would be 90 days from September 10th. So it would probably have to be heard by the Commissioners at least by the first meeting in December."

Com. Burrus, "Todd, we have a November 18th meeting or a December 2nd meeting."

Mr. Etzler, "Probably the November meeting if appropriate. I also believe it would be more beneficial if you heard all of this argument at one time rather than hearing the argument over a period of two months. I realize there are people from the city of Portage here that have shown up for this hearing but also we had no idea they were going to showing up and getting this type of commentary. If we would have know about this last Friday we could have prepared and responded to this. I would prefer to have the entire hearing at one time."

Com. Harper, "Let's take one step at a time. I don't think we should go any longer than November 18th. Are you sure we are going to be in the time frame? Are we sure of the starting point?"

Atty. Rinkenberger, "Is the starting point from the date it was certified to us or the date it was heard by the Plan Commission? Lets do the worse case scenario and use the date it was heard instead of the date of certification and then run the 90 day time frame."

Mr. Thompson, "I think the 90 day time frame from September 10, but I think the certification letter came . . ."

Com. Burrus, "We can entertain a motion to continue this to the November 18th meeting, however, we need a resolution as to whether or not we are going to continue with the hearing at this time. Bob, your comment was in favor of that. Do you have any second thoughts?"

Com. Harper, "How do you feel about this, Bob? These people have taken time from their day."

Com. Burrus, "I agree and understand it takes away from their jobs. The only thing I think we heard some credible argument Todd made to hear it all at one time and reach a conclusion at that time."

Com. Harper, "Is there any problem having the public meeting and reaching a conclusion at the same meeting?"

Atty. Rinkenberger, "No, you could open the public hearing, have the public hearing, close the public hearing, discuss it and reach a conclusion."

Com. Evans, "At first I was thinking we should accommodate the people that have shown up but I can appreciate Todd's point of view, also."

Ken Elwood, "I am the attorney for the city of Portage for the Plan Commission and I have conversations with Todd prior to this meeting. Our resolution essentially references the buffer zone we had proposed and which existed in both comprehensive plans and our Plan Commission president is here today and he will read that resolution if you allow him to do so. I don't think there is any precedence that doesn't allow you to have a public hearing and then proceed at a next meeting and leaving the public hearing open to a vote. I think part of the problem of having a 10:00 a.m. meeting is it hurts the number of people that can attend because of their employment. I think the people that have been able to attend certainly ought to be able to speak up. There is no detriment whatsoever to the petitioner."

Com. Harper, "I can't see what two more weeks is going to do one way or the other so I think we should let the people speak and then if someone wants to comb back if something changes they can come back; at least give them a chance to speak. Maybe they should be here, maybe they would be more powerful if they are here the next meeting, and I think we should let them speak."

Com. Evans, "I can go along with you. They have taken their time to be here today maybe we should add a caveat to that that those who speak today will be concluded from speaking again."

Atty. Rinkenberger, "I don't think that is fair because we will have new issues raised. We don't want to preclude them from speaking again because they don't know everything they are going to speak about yet because all the issues aren't before us. I wouldn't feel comfortable putting any constraints on the public hearing and continuing it."

Com. Burrus, "Lets keep this as open as we can and proceed with the public hearing. We will have the opportunity for Todd and John to make their presentation on behalf of this and then we will hear the opposition and then we can also continue this until November 18th."

Mr. Etzler, "This is 127 acre parcel in unincorporated Porter County which is bounded on the south by 700 North and on the north by 750 North. On the east of the parcel is the current South Haven subdivisions that exist. The property around us is zoned R1 and it has a density that is comparable to this parcel. This property is shown in your growth management plan as urban fringe development. This hand out you are receiving this afternoon is a exhibit to your growth management plan. The growth management plan is part of your comprehensive plan. You will note that in the yellow portion where it is located at Inverness, the growth management plan shows that as urban development. In urban fringe development, the grown management plan states that this is supposed to be a more dense area that fringes around the cities, towns and other already built up places also it deals with residential development. The growth management plan in urban fringe development indicates that it should be developed with a density of between four to seven units per acre. This property now is 3.77 units per acre. The area that you received shows a couple of calculations. The area of general around this development is approximately 3 ½ units per acre; however if you take this property and move it over and clip so you have the same amount of area immediately adjacent to this, it goes up somewhere about 4 units per acre for the existing development. This grown management plan also was put in place and given to the city of Portage for comment. They had a representative on this process and I believe that staff had meetings with the city of Portage at the same time. They had the opportunity to comment on the growth management plan. This is concerning the future areas where the county believes that more intensive development should take place. This parcel is in the area of the most intensive development that they have for inside the county. Any more intensive and they are suggesting it be apartments or be within a city or a town. We have on this property utilities necessary to serve each of these properties and storm water drainage available to cover not only this parcel but they have excess storm water retention. The storm water retention will be up at the Twin Creeks Conservancy at the northeast corner of this parcel. All storm water from this subdivision will be directed to the northeast corner and will be stored within that basin. That basin was constructed to take developments such as this in this area. Sanitary sewer we expect to be using South Haven Sewer Works and we have the capacity for that. Water will be provided by Indiana American Water Company,. Therefore, all utilities are available to this property. That is important in Porter County because if you have these utilities you are entitled to a greater density or smaller lots whichever you wish to stake. On our traffic, we have done a traffic study and on all of the intersections around this we have a level of A or B. The Department of Transportation has four levels: A through D with the best of capacity of being an A and the least capacity being a D. Most of INDOT's usually designed for somewhere around the C or D area so they have significant traffic capacity. We also have very good access to this parcel. There are three entrances to the east; two on the west; one on the south. You see the plan up there will be changed however, because we understand there is a dispute concerning a strip of land on this parcel. Therefore, we are requesting an amendment to the ordinance to take out the access to 700 North and it will look like the drawing that John has here. It will be an interior subdivision with two access points; we are not dealing with cul-de-sacs, we are dealing with a couple round about areas. Therefore we don't have to access 750 North and any dispute concerning that access is no longer a problem. We have provided in our ordinance that instead of or as part of our road plan, road maintenance plan that we have with the Highway Department, that we would be widening 750 North being that we will not be using 750 North anymore, we will not provide that in time contribution, but instead will work out a road agreement with the Highway Department based on what Dave Schelling believes is appropriate for the subdivisions. Therefore, we are not going to make improvements to 750 North, we will pay for whatever is necessary for this subdivision. This subdivision has a bit of a unique situation. We looked at the area surrounding the subdivision and found out that it already has many amenities in terms of recreation facilities and open space that are available to the areas to the citizens in this area. There is a Little League baseball park on the northwest corner of this; the Field of Dreams park is south of 700 North; there is the Porter County Library right on the southeast corner and the Boys and Girls Club is immediately to the east in the South Haven subdivision there. We looked at all these opportunities for recreation and open space. One more space of open space is that the Conservancy District on the Northeast corner; although that is not accessible to the people that will live in this subdivision, it is open space that does permit green area and provides are for filtration. Both water and ability to give views that if it was completely developed, would not exist. Therefore, the developers have requested the Plan Commission, and the Plan Commission worked out a program for providing monies in lieu of the recreation and green space that is often in Planned Unit Developments. The developers will be contributing $60,000.00 to three of the non profit entities in this area. $20,000.00 will be going to the Little League baseball park; $30,000.00 will be going to the Portage Township for their Field of Dreams Park for construction of a path and $10,000.00 will be provided to the Boys and Girls Club. The details of that are in your packet from the Plan Commission. Once those improvements are constructed we have also set up a program of ongoing maintenance in perpetuity at these improvements. $100.00 from each lot will be contributed to the Porter County Foundation in a specified set aside fund for use of these three non profits. We expect that for the first five years, money will just be deposited into this account, after the five years, it will be an annual distribution of the income from that money up to the amount of the income that comes out or 5% of the income. So, if we have $42,000.00 which we expect to with a total number of lots at $100.00 per lot, we expect that an annual payment would be initially around $2,100.00 per year. That would be split equally between the three non profits. This will be a restricted fund; it does not terminate. If one of the non profits happens to terminate themselves, then the remaining funds will be split among the two, then if there is none of the non profits existing, the money will go to the Park Department, having jurisdiction over this property at that time. That is an overview of this subdivision. I did get a chance to look at the resolution from Portage and they have provided in that resolution that the Comprehensive Plan that any development within two miles of their city should be done according to their standards. In this case, they are claiming it should be an R1 subdivision. This is not an R1 subdivision, it is a Planned Unit Development. They are put together based on an analysis of the area around it; what is best for the area, what is consistent with the area. Your growth management plan which is part of the comprehensive plan, states that this is exactly what Porter County wanted in this area. In fact, Porter County wanted a density of four to seven units per acre and we are at 3.8 units per acre. So, this is entirely consistent with that plan. John will also pass out a document that is part of your comprehensive plan from vision 20-20 which indicates the hot spots for development in the area. That study, done by NIRPC, provides that the subdivision is placed in one of those development hot spots. Asking to develop this area residentially is not at all inconsistent or foreign to the County. The County looked at this very closely. The city of Portage wants an R1 subdivision. If this were developed in R1, I believe that the square footage of a lot in R1 is about 8,800 square feet in Portage and has an 80 foot frontage on the roads. You will look at this property, and many of those lots have to meet those requirements and in a situation of doing a Planned Unit Development, we will actually be consistent with that type of development. Even considering Portage's complaint, I believe this development is consistent with everything that is right around there. Immediately to the north, if Portage is bring down their concerns about annex and this property a lot of that property up north is commercial; you can see that on the growth management plan picture I gave you. It is the colored picture showing the red circles that indicate commercial areas. I would expect that it is not inconsistent to develop a subdivision with 3.7 units per acre or 3.8 units per acre near or around an area that is surrounded by commercial, similarly dense residential areas. With that I will take comments and respond."

Com. Harper, "I encourage you because the more I think about this, the more I think we can get this done today. I don't think we are bound by a resolution of Portage's; they are making it, we listened to it like everything else, so I would encourage you, . . . ."

Mr. Etzler, "Well, let me finish then. In your packet, we spent from May until September on this at Plan Commission meetings, in the newspapers, editorials. Findings of Fact that you received which are seven pages long show that the issues considered by the Plan Commission were lengthy; they were detailed and they were negotiated. The indication is that this development and its amenities will be consistent with this property with these surrounding areas and actually despite any public comment it will be a benefit to this area."

Com. Burrus, "In a moment, we will open the hearing for those that wish to speak against the proposal but before we do that, I would like to request a couple of things. Number one, whoever is acknowledged to speak, please stand and state your name and address. We must have this for our record and speak clearly. We have a mobile microphone that Linda will pass around. To the extent that you can, it will beneficial if you don't duplicate previous comments too much. We don't want to get too repetitious because once we hear it, we know the point. Before we begin that, is there anyone else who would care to speak in favor of the proposal? Since there is none, I will open the hearing for those who would like to speak against. I will recognize you and you can stand and state your name."

John Rhame, "My business address is 2684 Willowcreek Road, Portage, Indiana. I am an attorney in Portage and I represent Joe Sasak and he is a property owner at 423 W. 750 North. One of our main points was and has now been eliminated by Mr. Etzler, is we actually owned the property right across the street from where they were going to merge on 750 North and Mr. Sasak and some of the other property owners who had to pick their location, were obviously not going to be pleased with having that traffic right immediately in their front yard. So we quite honestly applaud they are not going to move into that area and we actually own some land on the south side of 750 and as long as that road is not going to be cut through there, that is a major plus to the individuals on the north side of 750 and we do applaud that. In other respects concerning this subdivision, individuals who have asked me to represent them want us to talk about what is the vision for this particular area. If this is now going to be a PUD and not R1, what is the point of moving in that area with what we actually believe is a higher density than the R1. If it wasn't going to be a higher density and going back through the minutes of the Plan Commission where we are struggling to understand why we would do that if in fact the density is not going to be greater. We are also concerned if density is not issue, then how are we also going to justify the infrastructure in this particular matter. They said they believe at this point in time they could tie into the sanitary sewers, we have not been able to determine if that is in fact true. We are not questioning anyone's veracity, but we would like to have something stating that they can tie into the sewer system that is presently available. We are also questioning if we are not going to have the traffic coming onto 750 North, they stated at the Plan Commission that they were going to rework 750 because any of you who have driven on 750 realize it is about 18 feet wide or less, it is blacktopped, it is full of ruts, it is like a washboard. So if we can talk about that traffic is not going to be influenced by taking it off 750, I guess that is a positive because obviously McCool, 700 and on 750 are much better for handling the transportation. We are concerned also that particular area about the fire coverage for that particular area. We are also concerned about police coverage in that area. We just think that when the Commissioners looked at that in conjunction with their overall plans, we need to make sure the infrastructure that the other ancillary facilities that need to complement that are going to be considered. Thank you."

Lloyd Stantin, "I live at 711 N. McCool Road. Since I face McCool Road, all of these houses are going to have their back yard to my house which I don't really want the guy to build a shed in the front yard. Another thing, every time they get too many customers, they enlarge the plan and we always get _________________. I have lived there almost 40 years and they have enlarged the plan several times. Now we have one of the highest sewer bills around. I know they tell you the more people hook on, the less you have to pay. But every time more people hooked on, it gets too small and we have to rebuild it which is a big problem for the people that live in South Haven. Our friend who has been working on this for six or eight months, he did not say how many of these lots are 80 foot wide, he said many. The majority of the lots in the subdivisions in South Haven are 80 foot wide. Maybe out of 400 could be 35, I don't know, but if I was going to state this to you in his position, I would say I have 800 lots that are 80 foot wide and the rest of them are too small. I guess that is all I have to say."

William Cronch, "I live on the corner of 450 and 700 North. My concern is when they say density, they always flip it over to the South Haven side. What about the density on the other four sides of this subdivision. It doesn't match near what we have on our acreages there. I have been there for 30 years, I have 3 acres with one house on it. You are talking about putting about 5 houses on one acre or 7 houses, whatever. I am just saying they always talking about the ____, what about the other people who put their lives into the subdivision and put their acreage around there and improved it?"

William Walton, "I am the president of the Portage Plan Commission. I would like to read into the record the resolution kind of in response to Mr. Etzler's comments and not knowing about this. Unfortunately we didn't meet until last night. My address is 6771 Trail Side Avenue in Portage. This is Resolution 01-2003, Comes now the city of Portage Plan Commission on November 3, 2003 meeting and does hereby resolve by motion and second and by unanimous vote seven to nothing as follows: that the city of Portage's comprehensive Plan and the County of Porter's Comprehensive Plan does call for a two mile radius buffer zone around the borders of the city of Portage that is located within the County of Porter that would require development in that zone to be developed pursuant to city of Portage's standards. That the development known as Inverness does not comply with those zoning requirements and as such, the Plan Commission of the City of Portage would ask the Porter County Commissioners deny the approval of the Inverness Development until such time as it meets the requirements of the zoning ordinance of the City of Portage. Be it and it is hereby resolved this 3rd day of November, 2003. this was action taken at last night's meeting of the Plan Commission. Also, on another note, I sit on a steering committee in the City of Portage and we have been working diligently on our Master Plan and Land Use and while this piece of property is not in the city of Portage, we do have a vision for the growth of Portage in the future and inevitably the growth will head south. Not that we are planning on doing this in the next couple months, but our vision for that land down there is not in the density of 3.8 units per acre. I think that is what this fringe development cooperation was that the County would come to the city and talk with myself or our planning director who is also here and ask what our plans are for that piece of property. If they are going to develop it with substandard infrastructure, in our opinion, I do see that it has sidewalks but it does not seem to address curbs, it doesn't seem to address sewers, I don't know how it addresses the drainage. In reading all the meeting minutes from this project, it was brought up at the second meeting whether or not they would have IDEM approval. The answer was a continuous no by the petitioner and they finally said we don't really need that at this point. In order to approve a PUD for any development, they should have to have proof and approval that they can tap into the infrastructure that is there. While South Haven might have the capacity its my understanding they have to do some serious improvements to their own infrastructure before they accept these additional customers. And if they don't have that approval from state, I believe this was from June that this resolution came down, I don't believe they spent 6 or 9 million dollars there since June. I don't see how we could possibly pass this. Some of the other things I have as a citizen of Portage, I am concerned with the infrastructure of Portage. This thing is going to dump a lot of their traffic onto Samuelson and McCool Road. I am sure you are all familiar with Samuelson in Portage; it is the direct route to Route 20 that has a one lane bridge. That is an issue that Portage is working on but I don't see it is going to be resolved any time soon and it is going to be a serious issue with traffic if it all ends up on Samuelson Road, which from what I can see from here, taken this 40 foot strip of land out, this is going to direct it right to that road. Another issue that pertains to our PUD ordinance is they don't allow you to take a 40 foot strip of land and not develop it. They either have to get ownership of it or work with the current owner. What does the county want, do we want a 40 foot piece of land that nobody ever takes of that was divided by a road at some point in the past? I personally am offended with this proposal for this $60,000.00 one time payout and $100 a lot in exchange for green space. Green space is a major issue in the city of Portage; it is something we try to incorporate into all of our developments, especially the PUD's. They get to 85% density but in exchange for that they have to create the green space and offsite green space is not acceptable in the City of Portage. They call their green space a detention pond which I don't want my kids playing in a detention pond. They call it an off site park and they are offering $30,000.00 towards but if they want them to build the trail, it comes out of the $30,000.00. How absurd is that? The county parks don't have the money to do this now, it is obvious the $30,000.00 is just going to pay for that trip. $100.00 per lot is probably one half percent profit they are going to make on density. They are going to develop it at $20,000.00 per lot, and $10 million worth of property? And we are going to get a hundred grand out of it and no green space. I am also concerned about, I noticed in the meeting there is reference to an eagle living on the property. If that is the case I don't know if it is true, but if its an eagle, they are found on the endangered species list I think a study should be done to find out if it is truly nesting there and what could be done to avoid disrupting that."

Joe Sasak, "423 W. 750 North. The two questions I have are density. Mr. Etzler speaks about 3.8 units per acre. It is my understanding that most of these units are going to be duplexes. Duplexes mean two. Isn't that just about double the amount of units per acre? If you have approximately 400 or 420 units that are being built on this acre, today everybody has two cars, you are talking about adding 1,000 cars roughly in this area which is quite a bit. That's all I have to say."

Ken Elwood, "I live in Portage and practice law in Portage with the firm of Rhame and Elwood. It is not very efficient for both of us to be here but there is probably only one of us getting paid today. My address is 2684 Willowcreek Road. I am also a voter and I think the most important classification you need to consider me today is as a taxpayer. In reviewing the minutes and talking to individuals that were here at the previous evening meetings, this room was completely full. I want to thank the Commissioners for allowing this public hearing to proceed. I think that is important and I think it sends an important message. It is clear from reading those minutes and talking to the people that were here that there are a number of people concerned about this petition. Unfortunately when the Commissioners choose to have a 10:00 a.m. meeting it does nothing but limit public comment; particularly on a petition as this important. I think it promotes, and I am in no way accusing anybody of this, because I know many of the gentlemen before me and they are very respectable men, but it promotes the concept of dealing behind closed doors and the "old boy network" and I think we need to not promote that concept. The petitioner's counsel has preferred to why PUDs were created and what the purpose of them are. In the 1995 Comprehensive Plan there is a purpose set forth in the county ordinance for a PUD. Unfortunately, in the current ordinance there is not a purpose set forth, however, the purpose and the reason the PUDs were created is to allow a cluster or spotting of particular uses on smaller lots to create a mixed use neighborhood. However, it is not to be developed to the detriment of density meaning the density of the underlying zoning district is to remain. That density is to be made up through green space, open space and parks, etc. on the same site. I agree with Mr. Walton, it makes no sense to donate dollars to a fund to create green space off site. It does not meet the purpose of this ordinance and the purpose of PUDs. By my calculations, and I take some of this information from comments made by Mr. Etzler in the minutes, they have created an additional 90 units by using the PUD ordinance versus the residential zoning district in the county. Developers have traditionally attempted, in my opinion, to misuse the PUD ordinance for exactly what it is not intended for and that is to create more density, more lots and in turn more dollars for themselves. That has been attempted in many communities including Portage and we have denied the vast majority of those who have used them for that purpose. The resolution is important. I agree with Mr. Harper; it is simply part of the public record, you are not bound by it but ironically, the request from the city of Portage to create this bumper zone came from a previous development that was petitioned on this property. This same parcel. There was a developer that came to the City of Portage and presented a proposal and asked the City of Portage to annex this parcel. That was denied. They then came to the Porter County Commissioners and the Porter County Plan Commission and asked for the same thing. The City of Portage in response came to Porter County and asked to create this buffer zone and once again, both of our Comprehensive Plans asked for unified growth in this unified fringe development. So I would ask the Commissioners to consider that in making their decision and to deny this petition."

Lewis Hass, "260 W. 875 North. Only a half mile frontage on 450 West bounded by US 6 and 750 North. This is the first notice of any discussions on this project that I have received. On South Haven sewer, the federal EPA per the July 23, 2003 issue, has determined the sewer plans inadequate for current dates. And do need $7 million worth of work for current needs, not future needs. You are getting futuristic by loading this place up when it doesn't meet federal standards. In addition, on my parcel is a toxic lead site as proven by this $4,000.00 report, unaddressed, a hazardous to everyone in the area. Which has been allowed to develop over a period of time with full county inobservance of the laws. I will leave you a copy. Maybe you can act on this."

Tracy Wood, "I live 425 West 750 North. One thing I would like to bring up today with this 11:00 meeting; I know it has been stated before, but I do have over 220 signatures of people that could not be here today and are all opposed to this petition. A few points that were brought up in the first public hearing that to me were never addressed after that meeting. The school systems; we have 28 kids per classroom in our school system. I had brought that issue up and they had stated they talked to the superintendent and that they were acceptable to this kind of growth. I had information that had never been presented to the school board so that is one of my main concerns. Their roadways on their drawing was brought up that, and I believe one of the planning commissioners stated that it is a speedway for teenagers with no stop signs and such things that would prevent that kind of driving. They came back in the second hearing and tried to appease the people on McCool Road and 700 by saying they would be leaving a 40 foot tree line for the environmental issues of the forest but I don't see it on their drawings so we would like to know how and if that would be accommodated. I think our main issue over all these things, everyone gets emotional about their property but we would like to see it left R1. We don't have a problem with it being developed eventually, but being this large of a development is not favorable to any of us. They say it is going to improve our property but I would just like to see it left R1."

A.J. Monroe, "I am the Director of Community Development with the City of Portage, 6070 Central Avenue. There has been several comments regarding the sanitary sewer connection. Mr. Etzler previously stated that the South Haven Utility is at capacity. I have not seen any record that indicates that. I believe another gentleman here made reference to the US Environmental Protection Agency and the Department of Justice's findings as of July 22, 2003. That report as released is on the region 5 weather guide and its number is 03-0PA113. In the consent __________ lodged on July 17, the South Haven Utility agreed to do the following: 1) Not expand the service area until it can demonstrate that it has the capacity to treat additional waste; 2) stop accepting all unauthorized non-municipal waste; 3) to eliminate by-passes and overflows at the wastewater treatment plan; 4) to monitor and sample wastewater entering and leaving the system and report the results to the EPA and the Indiana Department of Environmental Management to evaluate its entire system and identify the causes and propose solutions for sanitary sewer overflows; to install a back up power generator to prevent by-passes during power outages; implement the passing of overflow response plans including replacing major sewer lines and interceptors; develop preventative maintenance programs; submit quarterly reports to the EPA and the Indiana Department of Environmental Management and report all by-passes and overflows within 24 hours of becoming aware of them. This consent is something I think is very important in considering whether or not this development has the necessary sewer capacity for the densities that are being proposed. As previously stated, the sewer works were to pay a penalty of $250,000.00 and to spend approximately six to seven million to develop and implement the program to comply with its permit and the Clean Water Act. There have been over 1,000 instances between 1994 and 2001 when the treatment plan has exceeded its permit's limits ranging from 2 to 1,900 %. That bypass and overflow was going directly into Salt Creek, and traveling through unincorporated Porter County as well as through the city of Portage and through the national park. I think this is a very important matter and it should be considered in your decision today. Thank you for your time."

Wayne Shuler, "I live at 716 N. ____________ Road. Enough has been said about the wetlands and this piece of property. I have a map that indicates six delayed wetlands, one which has already been eliminated. There are people in the area that depend on well water for their drinking source. I am concerned if these wetlands are eliminated, it might affect our drinking water. That is all I have to say at this time."

David Lyons, "I live at 400 West Finewood Drive. My house faces McCool but I have a Finewood address, I don't know why. No one is talking about all the traffic that is already there, in front of our properties. It is like a drag strip. The police that are supposed to be watching that area, every so often they do a little ___________ on these people and when we get these houses they got three roads that are going to come out just on our area alone and if they put down a road strip and start counting the traffic like they said they would, it is a lot higher than they said; it is constant traffic. Every household has at least two vehicles and if you have a duplex, that is four vehicles. And the green space, her and I have actually seen the eagle with binoculars, it is there. Why cant they build within and leave more than 40 foot like they did in Portage and on 149; I don't object to any kind of building but just not this."

Com. Burrus, "Anyone else care to speak in opposition to this proposal? Seeing none, our next step will be to allow the developer and the representatives for the developer to respond to your questions and issues."

Mr. Etzler, "I need to clarify something for the record. Mr. Walton, Mr. Elwood, and Mr. Monroe, were they speaking on behalf of the city Plan Commission for Portage or were they speaking personally? It makes a difference for notice purposes."

Mr. Elwood, "I was speaking personally and on behalf the City of Portage Plan Commission."

Mr. Walton, "I was speaking on behalf of the City of Portage."

Mr. Monroe, "I'm speaking for the City of Portage."

Mr. Etzler, "Generally, there was several comments regarding the density of this property. I think I addressed it at the beginning in my presentation that this is consistent with the City's, County's compliments of their growth management plan. There hasn't been any comment that this is not consistent with it. The facts are in front of you and the drawings and the long time period of deliberation on the Growth Management Plan are before you. The consideration of whether this is a PUD or not, a request was made that it be mixed use development. It isn't a mixed use development with single family and attached two family homes so one building having two homes on it on a single lot. With the density on this, we are looking at 418 lots single family, 59 duplex. 418 total lots, we have lost 2 when we configured that north portion from 59 duplexes on that. The density is calculated as . . . we haven't done anything with the density, that is odd calculations but it is calculated as all other densities are calculated and is comparable to your Growth Management Plan. I will read this. This is the Urban Fringe Development to show you this is consistent. Urban Fringe areas are located adjacent to existing cities and towns and are proposed to encompass future urban expansion. Since this is next to Portage, you have heard the testimony of Portage that this is somewhere they are looking to expand so this falls within that urban fringe development. These areas are proposed for primarily residential growth and the density comparable to that of adjoining urban areas. We have shown our consistency with that to the east. To the west is undeveloped. I would expect that if this Growth Management Plan is applied that you will probably have additional growth in that area similar to this. In addition, single family residences uses, these areas may include multi family developments, institutional uses, and some neighborhood commercial uses oriented to the neighborhoods of which they are located. Recommended densities are between four dwelling units per acre and six dwelling units per acre for single family developments and ten dwelling units for multi family developments. Connections to public water and sewer systems are required for this land use category. That is straight from your Growth Management Plan and straight from your Comprehensive Plan. Does it meet R1 density or is it higher than what would have been permitted in R1? Yes, it is, that is why we are doing this as a Planned Unit Development. Is it higher than what is in Portage? Yes, it is, but I would submit that it would also be consistent with the development going on in Portage. Concerning the density around the area for the east, those lots are between 7,000 and 9,000 square feet. That is about where we are on our parcels. Their widths are somewhere in the 70's to low 80's on those parcels that are consistent next to us. I know this doesn't comply with the R1 ordinance for Portage; the county has looked at giving towns and cities a 2 mile buffer and have decided against that. So, we have not gone to Portage and tried to comply with their ordinance, we are dealing with the county ordinance here in Planned Unit Development. Talking about the city's master plan and land use which is ongoing, we are dealing with a future plan that the county has put together for county property. This is the county plan for county property of which Portage was a participant. They could have stated that you do nothing around this area and leave it as shown on your maps there as an unplanned area leaving it to the cities and having the cities come and annex that and have chosen not to do that in this case. The property will have curbs and sidewalks. The curbs, sidewalks and streets are developed to the County's standards or a PUD and are adequate for its traffic. Those considerations concerning traffic, as we stated earlier, in the Technical Advisory Review process and in the Plan Commission process we submitted a document approximately one inch thick showing the calculations for all the intersections in this area. This is an A-B intersection traffic zone, even considering all the traffic that comes out of all the other subdivisions that presently exists. Capacity exists for this entire development. As for the condition of 750 North you will see since we have cut off that access to 750 North that there is no reason for anyone in this subdivision to drive on that stretch of 750 North. Anyone coming out of the east, will drive up McCool Road north if they want to go north and McCool Road south but they are not going to cut through 750 to go north. Same thing with anyone within the subdivision would either choose to go either east or west within the main subdivision or artery that exists there; two of which go straight through the subdivision that is appropriate. As with the IDEM approval, we are required to deal with wetlands issues; they have been considered; this development will not do any work on wetlands that is not permitted. We have determined that the US Corp of Engineers does have jurisdiction over those wetland and the proper permits will be filed for that. That does not mean that in a PUD planning process, that this body cannot approve a plan saying that in concept, this is good but you are not permitted to do anything unless you've got the Corp of Engineers or IDEM's approval. We will be doing that and it will be done, we are not permitted to construct anything without that type of approval. The $30,000.00 for the trail, that is correct, that is what that is for. It is not $30,000.00 and a trial, it is $30,000.00 for the trail. It was worked out with the trustee on how much that would cost and that is an estimate of what that would be so that is what we are providing."

Mr. Kremke, "Mr. Walton made reference to substandard infrastructure. I think that is not an exactly right statement simply because infrastructure as we all know needs to be designed to a certain standard simply to gain the state approval necessary to get the sanitary sewer, drainage and all those things. Needs to be designed to those standards, no matter where you design, whether it is in Valpo, Portage, Crown Point or anywhere else in the state of Indiana. So the infrastructure is not substandard in any way. It does meet the County's standard and actually exceeds it in many circumstances. Are there differences in standards? Sure there are, every community has different standards but it does meet and/or exceed every County standard. And for fire protection, this development will be served with pubic water and therefore, it will also be served with fire hydrant protection. A copy of the drawing has been sent to the fire chief so he can tell us where he wants the hydrants located. We locate them where he tells us to locate them for his use and for every consideration he has. Again, in terms of sanitary system, this development has been in front of ……….. It is has been given a certificate of territorial authority from the Indiana Utility Regulatory Commission, it was a six month process that got us to this point where this development was seeking approval to connect and yes, South Haven Sewer has some things they need to do but we cannot connect until those are done and we know that and they know that and they are diligently working to complete those things in a timely manner. Oh, Mr. Stanley, the question about the back yards on McCool. That was done as we go through the TAC process and discussions with County Highway. County Highway prefers to limit access simply to the roads and not with a bunch of driveways coming out onto the county roads. For that reason, these houses were turned around. They actually make the roads a bit safer and limits people backing out on the roads. The number of entrances was also negotiated with County Highway because they like to have an optimum number of entrances. Too few is not good, because the front of the traffic has too few locations and too many is not good, this is the number that was negotiated with County Highway. In closing, there was a comment concerning the history of this parcel and a previous development that was attempted, and I believe the implied statement is this is the same thing. This just is going over the same land. That was just exactly opposite of what is going on here. That was a trailer park with much smaller parcels and was developed in a much different way and has nothing in common with this property that this project except that it happens to lie on the same property. So nothing about this was submitted to Portage before; nothing about this was commented upon or was submitted to this Board before or commented upon. Lastly, in reference to the 'Old Boy Network', in this situation, I am sure that will make the papers tomorrow about how this was an Old Boy Network negotiation. Let me tell you the story that started in May. We had 3, 4, 5 meetings, from May to September, public meetings here in the evening, and everyone that was off work could come there to those and it was indicated this room was filled at those times. Sometimes it was and sometimes it wasn't. everything done here was provided to the Plan Commission in writing and provided to them in an open public meeting subject to comment at every point in time. There has been no negotiations with any people, any Commissioners or any Plan Commission members and agreements made outside of this public hearing. So if it is this project or having this hearing at this time, the Old Boy Network is simply improper. That is the end of my comments if you have anything else, I would respond."

Com. Burrus, "At this time I would like to offer the opportunity for any follow up comments. We are not going to reinvent the wheel but if there is anything that was not addressed, we will take a few more comments from the audience."

Joe Sasak, "423 W. 750 North. I attended every one of those meetings in the evening that started in May, June, July, August and September. The only time we got to speak was at the May meeting; at the following meetings we couldn't say a word. We had to sit there while Mr. Etzler had the floor and we couldn't say anything. Then at the August meeting when they voted it was four against and three for the proposal. At the following meeting in September, all of a sudden, everyone was in favor of this thing and the proposal he came up with that annuity, the Plan Commission thought that was the best thing since sliced bread which I didn't really understand."

Tracy Wood, "425 West 750 North. I just wanted to reiterate Mr. Sasak's statement that we were not allowed to speak at those meetings and we kept coming up with the same issues from the first meeting that were never addressed at those meetings. It seemed like after the second meeting, the only issue was the green space issue which still is not inside their development. They're still using parks that are outside their development for their green space which from what I understand is against the PUD. Mr. Etzler said no one is going to be driving on 750; you cant say that. You cant add 800 cars and expect no one to use that road. It still needs to be improved. You cant improve everything around it and leave that road the way it is now. As far as traffic control, and their rating of the A, B or whatever it is, I have an article that says Route 6 and McCool Road had the highest accident rate over a period of time. They did some studies and Route 6 is the worst. That intersection right there had the highest accident rating of all. You are going to add more cars and you cant expect there won't be more accidents. The issue of turning the houses around for the back yards, okay, that was addressed in the second meeting and again, they said they were adding a 40 foot tree line. I believe that is in the minutes but I don't see it on their drawing and I didn't hear them say that is still in place now. By them taking away the 40 foot tree line on those two roads, how does that affect their density? That has to take away some of their acreage to consider into their density. Thank you."

Mr. _________,(inaudible) "One of the things I want to mention, at the first meeting, they mentioned that in Portage, that they were saying it was just like or similar and now Portage is saying………. (inaudible.)

Mr. Elwood, "Again, I feel compelled to respond to what Mr. Etzler said about improper comments. I thought I made it very clear that I was not accusing anybody of an Old Boy Network or making decisions behind closed doors. What I am expressing is a concern among taxpayers. Mr. Etzler asked in what capacity I was here and I indicated clearly that was one of the capacities I was here. I think a 10:00 a.m. meeting infers that and I think the Commissioners need to consider possibly alternating their two meetings a month to one in the evening and one in the morning doing something to better accommodate public input. Thank you, Mr. Sasak for giving the history on this petition because if you read the minutes, I agree with exactly what Mr. Sasak said; it was a 4-3 vote against and miraculously, without explanation, it gets approved unanimously. With regard to the history that I gave on this parcel, I was not attempting to infer anything but now that Mr. Etzler brought it up I would like to point out that the density was almost identical to the density being set forth and requested in this petition. Thank you."

William Walton, "6770 Trail Side, Portage. Mr. Etzler made a comment that this PUD is consistent with what Portage has done. I've sat on the Plan Commission for Portage for approximately 4 years now, my first year as president and a couple years as vice president. I have watched PUD's come through. We have approved them and they are truly mixed use with commercial; with residential; single family with residential multi family. We did have an attempt in the last year to get a PUD through that was simply density. They offered a lot in exchange for this density which we as a Plan Commission, there is another member here that can attest to this, we did not approve this and then revert it back to an R1 development which is moving forward and it is being developed right now. My comment about the infrastructure being substandard is truly in regards to Portage. For us to, in the future, and not speaking as a member of the city but speaking as a person that lives in Portage that lived in South Haven most of his life, the expansion of Portage we have to have infrastructure that meets the infrastructure we have. In order for us to annex something in the future, we can't do upgrades to substandard infrastructure compared to ours. One of the problems with South Haven, if somebody lived there for 15 years, has always been the infrastructure. The roads are in disrepair; the sewers are in disrepair; the drainage, well I can remember swimming on my street when I was a kid, with it being over my head. Obviously we have tried to address that, the retention seems to be working and it doesn't flood like it used to but I think that the standards on the fringe development need to meet the city's standards that they are on the fringe of. That should hold true for Valparaiso or Chesterton or Portage or Wanatah or wherever they are going to be. The $30,000.00 for the trail for the trade off, I think the Commissioners and the County have learned a valuable lesson in the last year and that lesson is that the band aid approach is not a good approach to fix anything. The $30,000.00 donation for a trail that would get spent immediately in exchange for people using a park that we can't afford to keep maintaining now is just ridiculous. This annuity according to the meeting minutes is going to approve $262.00 a month five years from now. If you calculate that out at minimum wage it is roughly 40 hours a week that we've got to use to maintain all the parks out there. I think the Commissioners are well aware and the Parks Department and the Porter County Planner that in that 40 hour work week you are not going to get all the work that needs to be done and we missed the ball again. I also did not hear them talk about IDEM approval for tying into the sanitary sewers. They seemed to tap dance around that one but I heard them say IDEM as far as wetlands are concerned but I didn't hear anything about IDEM approval for tying into the South Haven Water Works Company and as I stated earlier in order to approve a PUD, I believe they have to prove the infrastructure is capable of handling that and that they can make that tie in and I will see that they have done that. I think the Commissioners don't have any choice but to deny this petition."

Com. Burrus, "If all the speakers have been completed we will offer the petitioner one more time to rebut any comments that were made."

Mr. Etzler, "IDEM approvals, again, in a typical subdivision development where there aren't any variances needed or you don't have to go through the PUD process, typically IDEM approval is requested from IDEM once the development has primary plat approval, because that assures there aren't any changes to the design requested by the municipality. That was the same approach we were taking in this case because we were at a PUD rezone, it didn't seem to make any sense to submit the drawings to IDEM that until we go through the full primary plat hearing, may not change. That was the issue; it is not that we are dancing around it, is just the normal course of action in developing a piece of property is how it is approached. I wanted to let you know it wasn't a dance issue, it is just how things occur. Again, the tree issue, I am glad that was brought up because in a drawing that was presented in one of the Plan Commission meetings, we did show some trees. This area right now is all trees and we had committed in that meeting to keeping the tree buffer 40 feet wide along this perimeter which would hopefully help because the tree buffer is the natural tree stand there."

Com. Burrus, "Okay, at this time we will close the public portion of the meeting and the Commissioners will deliberate on the issue before us."

Com. Harper, "I have a question for Mr. Etzler. Can South Haven Sewer provide service to you at this point at they sit?"

Mr. Etzler, "I do not know. They told us they would have capacity for us."

Com. Harper, "Have they told you they cannot do it right now?"

Mr. Etzler, "Actually, there is some work that South Have needs to do."

Com. Harper, "Have you been told right now as they sit they cannot provide these services?"

Mr. Etzler, "We have not been told that. We have been told that there is work that needs to happen before they tie on."

Com. Harper, "Well isn't that what that means, that they can't provide these services?" Have you gone to the city of Portage and told them South Haven can't provide these services and you would like Portage to provide these services?"

Mr. Etzler, "We have asked that question."

Com. Harper, "Have they agreed to provide services to you?"

Mr. Etzler, "They have said they would like to discuss it further."

Com. Harper, "Have they agreed to provide services to you?"

Mr. Etzler, "Has the Water Reclamation Board agreed? No, but they are willing to consider it."

Com. Harper, "So you don't have an agreement with anyone at the present time for sewer services, is that correct?"

Mr. Etzler, "Can we go in tomorrow and build this? No."

Com. Harper, "That answers my question."

Com. Evans, "One speaker referred to notice and said that he had not received notice and he is an adjoining property owner. Bob, has the notice been properly issued? Did the Plan Commission hear this under proper notice?"

Mr. Thompson, "I would have to look through the file on it. They didn't have the required notification by certified mail, also, publication with a newspaper. I know public notification in the newspapers has been completed. As far as the notification by certified mail, they did hand in all the green cards and receipts saying they did attempt that. We did have some letters returned, I cannot tell you who exactly. I will have to look through the files."

Com. Evans, "As a point of clarification for me, the same speaker spoke of a toxic site in proximity to this development. Does that have a bearing on the development?"

Mr. Thompson, "I would have to see the report before I can answer something like that."

Mr. Etzler, "We have Phase I on our project and there is not a toxic site on that project."

Com. Burrus, "I have a question for you, John. On the issue of the entrance off of 750 North and your decision to eliminate that, exactly what pre-empted that?"

John Krempke, "Most county roads are build along the section line, all the sections dividing things up and in this case 750 North is moved off of that section line to the north and as legal descriptions are written for parcels, they are written to that section line. Well since the road and the subsequent right of way that was granted 100 years ago, it appears that some people may own property south of the actual roadway up to the section line. That being the case, then, that road really cannot be improved, at least by our developers and access to that would be difficult without agreements from all the property owners along there. We opted to remove that entrance but still grant the County to require a 40 foot actual right of way so in the future that right of way exists and it can be continued east and west as it becomes available for those parcels."

Com. Burrus, "Now does that have any impact on the boundary description of your parcel?"

John Krempke, "No, because everything meets at the section line."

Com. Burrus, "You mentioned a total of 418 lots, what are your total number of living units?"

Mr. Etzler, "The 418 plus 50 units or 477."

Com. Harper, "I would just like to see this. In the first place, I know you gentlemen have put a lot of thought and hard work in this and you have been to a lot of meetings. My understanding, and I think the true statement made here today was made by Tracy Wood that says this land is going to built on because all the land in Porter County probably eventually will be built on. We all know that whether we like it or not, we understand that. I think we have a wonderful opportunity, because we have a lot of open lands yet, not to make the mistakes a lot of other communities have made in the way of progress with the development of our land. I am not sure our PUD ordinance has been re-written and I am not sure that it has all the elements in it of what was originally envisioned by those that came up with the Planned Unit Development. It is used around the state and when it is used wisely, it's helped maintain a flavor and the enjoyment of land by the residents that are currently living there by doing this, not by changing density. That is not what it is for. It was intended so that builders and developers could take an area and perhaps change density to the effect that they build all the homes on half of the area but the other half would be left open for green space; parks, rivers and streams. That is what this ordinance is for. That is why the Portage ordinance says that they will not allow a density change of more than 5% because people have realized there is a danger. Anytime you create something there is a danger that is going to be abused. The only hope I have, because I know the County is going to be built on from one end to the other, I want that we do the best job we can as to how that building will be, to maintain the nicest possible area we can. Down in Nobelsville, Indiana, down there north of Indianapolis, they are using these Planned Unit Developments and creating some beautiful areas and I hope we can do that here. This is not a Planned Unit Development; maybe called a Planned Unit Development. This is an excuse to put 100 extra lots or so at $20,000.00 a lot is $2 million. They are talking about giving the community $60,000.00. It doesn't make any difference if they were giving $1 million. That is not the best use of the land for the people that are here. This project does not have, at the present time, utilities necessary so based on that I move that we deny this application at this time. Thank you."

Com. Evans, "I would like to read a paragraph from our Planned Unit Development from our zoning codes. It says: 'A Planned Unit Development means a development of an area planned as a single development scheme which combines a mixture of uses including residential, business, professional and/or light industry.' It goes on to talk about density and there is nothing in this development but residential units. I know where the money is going or supposed to go to other entities and other type uses and we should mention we received several letters of support from people that sit on those boards. Some very prominent individuals have written to us to tell us they endorse the funds going to those different units but that is going to happen one time. Then they are going to be sitting there wondering where the rest of the money is. The dollars are a good thing. I don't know that we can give up dollars for open space because they are making any more dirt and when we give it all away and we build on all of it, we have to have something to look at to catch the fish and look at the trees. The sewers are a big issue; if you don't have sewers you don't have a development. There is no letter in the file that says anyone is going to give you the ability to hook onto their utility. South Haven may someday be able to do that. When they are, we can revisit this issue but at this point I don't think we can go any further. I will have to second Commissioner Harpers' recommendation for denial. Also I would like to admonish Attorney Elwood that this is not an Old Boy Network; we meet two times a month in this room for years, it has been that way every time. The Plan Commission does our bidding at their evening meetings. We have several evening meetings that we attend also so there is no Old Boy Network going on here."

Com. Harper moved to deny the request to rezone from R1 to PUD for Accent Homes, Com. Evans seconded, motion carried.

Atty. Rinkenberger, "I just want to make sure the motion we are making is clear. If you look at our PUD ordinance, the Commissioners have the right to review the developmental standards set forth at 17.24.030. They have the right to evaluate; the evaluation criteria set forth at 17.24.010 and they have the right to review the written recommendations by the Plan Commission. I would ask that is a motion is being made, that many of the facts brought up here today are contained in those evaluation criteria, it should be included in the motion to deny because all of those are fair factors for this Board to consider in its discretion in denying the PUD at this time. Including sewers, density, open space, access, traffic, the buffer zone, failure of approval by IDEM, off site green space versus on site green space, the notice problems, school systems, wetlands, traffic and eagles are all the types of factors that are intended to be considered in a denial or approval of a PUD. I just wanted the record to be clear that we were considering one or more of all of the factors that were sited today."

Com. Harper, "I will restate my motion."

Com. Burrus, "I have a question before you do and that is by virtue of the fact that we are convened for a public hearing to receive that input and we have reached a conclusion at the end of that pubic hearing, would that not follow that is taken under consideration?"

Atty. Rinkenberger, "I would like it clearer in the motion."

Com. Harper moved to deny the request based on what was heard at the meeting today, based on the fact that there is no existing agreement that provides sewer to this property, based on the fact of the high density on the property, the fact there is no open space, the effect it is going to have on traffic and all the other factors heard today and based on the type of housing such as duplexes that they are asking for on this area, Com. Evans seconded based on the evaluation under Ordinance 17.24.100, motion carried.

Rezone-AG to C2, Doug Wilks, 1st reading

Mr. Thompson, "This is Plan Commission Resolution 03-14, Petitioner Douglas A. Wilks, requesting an amendment to the master plan; requesting a parcel be rezoned from AG to C2, offices and institutions. This was heard by the Plan Commission at their September 10th meeting and was forwarded to the Commissioners with a favorable recommendation by 8-0 vote."

Com. Burrus, "Can you give us any more specifics on the location?"

Mr. Thompson, "This is located right at the corner of CR 325 South and State Road 49. There is C2 zoning existing there at the time that encompasses the building that has the existing adjacent seat and feet on the parcel. What the petitioner is proposing to do by the legal description is rezone a parcel of land that is essentially L-shaped that goes around this parcel. At the Plan Commission he did state the reason for this was so that way he could construct the warehouse for purposes of storing seed and feed that is now being stored in trailers on the property."

Com. Burrus, "Since this is the public hearing, we will make the offer to anyone who is here that would like to speak on behalf of this. Seeing none, I would make the offer to anyone to speak against this. I am familiar with this parcel; it is immediately adjacent to State Road 49, approximately ¾ of a mile south of Morgan School. This is a small seed business as indicated here and the gentlemen is Jake Blastic, former trustee of Morgan Township. The corner where this is located was a restaurant years ago; it was already commercial. The parcel was acquired adjacent to the restaurant and the feed store has been constructed and operating there for a number of years. As Bob indicated, they have a need for additional storage. As I recall, at the time the petition was made before the Plan Commission there were no remonstrators present."

Mr. Thompson, "I think there were four citizens that were in support of it."

Com. Burrus, "With that background and no further discussion, we will close the public hearing and discuss it."

Com. Evans, "He is just trying to square up his parcel of ground to make it conform to what he wants to do with the seed company and get rid of these semi trailers used to store the things he would probably build a shed or barn to hold?"

Mr. Thompson, "Yes, I have a drawing here."

Com. Evans, "Actually the zoning is on the outside and the inside is already C2."

Mr. Thompson, "Right. The crosshatched area is what they are requesting to rezone to C2."

Com. Evans moved to approve the rezone from AG to C2, Com. Harper seconded, motion carried.

ORDINANCE NO. 03-13; AN ORDINANCE REGULATING THE CONSTRUCTION, PLACEMENT AND MODIFICATION OF ADULT ENTERTAINMENT BUSINESSES-2ND READING

Com. Burrus, "This was passed on the first reading at our previous meeting. Is there any further discussion on it today?"

ORDINANCE NO. 03-13
PORTER COUNTY BOARD OF COMMISSIONERS
AN ORDINANCE OF PORTER COUNTY, INDIANA, TO REGULATE
THE CONSTRUCTION, PLACEMENT AND MODIFICATION OF ADULT ENTERTAINMENT BUSINESSES.
_____________________________________________________________________________
WHEREAS, the Board of County Commissioners believes it to be in the best interests of the residents of Porter County, Indiana, to regulate the construction, placement and modification of Adult Entertainment Businesses; and,
WHEREAS, in order to achieve such goals, the Board of County Commissioners has deemed it to be in furtherance of the health, safety and general welfare of the citizens of Porter County to regulate the construction, placement and modification of Adult Entertainment Businesses in order to locate such businesses while considerate of nearby residential uses, parks, schools, public institutions, public gathering places and the quality of life within Porter County; and,
WHEREAS, the Porter County Board of Commissioners adopted the Porter County Municipal Code on Tuesday, December 2, 1997, pursuant to Ordinance No. 97-38; and,
WHEREAS, the Porter County Board of Commissioners has deemed it necessary to add an Ordinance to the Porter County Municipal Code that addresses adult entertainment issues;
NOW, THEREFORE, BE IT, AND IT IS ORDAINED THAT, Chapter 17.104 (Ordinance regulating Adult Entertainment businesses) is added to the Porter County Municipal Code to read as follows:

(A) 17.104.010 Purpose and Intent:Section 17.104.010 (Purpose and Intent) is added to the Porter County Municipal Code to read as follows:

It is the purpose of this chapter to regulate sexually oriented businesses to promote the health, safety, morals and general welfare of the citizens of the county, and to establish reasonable and uniform regulations to prevent deleterious effects of sexually oriented businesses within the county. The provisions of this chapter have neither the purpose nor effect of imposing a limitation or restriction on the content of any communicative materials, including sexually oriented materials. Similarly, it is not the intent nor effect of this chapter to restrict or deny access by adults to sexually oriented materials protected by the First Amendment to the United States Constitution or the Indiana State Constitution, or to deny access by the distributors and exhibitors of sexually oriented entertainment to their intended market. Neither is it the intent or effect of this chapter to in any way condone or legitimize the distribution of obscene or material harmful to minors.

(B) 17.104.020 Applicability: Section 17.104.020 (Applicability) is added to the Porter County Municipal Code to read as follows:

This ordinance shall apply to the construction, placement and modification of Adult Entertainment Businesses, as hereinafter defined, within unincorporated Porter County. No such Adult Entertainment Business shall be constructed, erected, placed, modified or altered within unincorporated Porter County unless: an Improvement Location Permit has first been obtained as required in this ordinance; and such Adult Entertainment Business otherwise complies with the terms and provisions of this Ordinance.

(C) 17.104.030 ADULT ENTERTAINMENT BUSINESS DEFINITIONS: Section 17.104.030 (Adult Entertainment Business Definitions) is added to the Porter County Municipal Code to read as follows:

Adult Motion Picture Arcade. An establishment where, for any form of consideration, one or more motion picture projectors, slide projectors, or similar machines for viewing by five or fewer persons each are used to show films, motion pictures, video cassettes, slides, or other photographic reproductions that are characterized by an emphasis upon the depiction or description of specified sexual activities or specified anatomical areas.

Adult Live Entertainment Arcade. Any building or structure which contains or is used for commercial entertainment where the patron directly or indirectly is charged a fee to view from an enclosed or screened area or booth a series of live dance routines, strip performances or other gyrational choreography which performances are distinguished or characterized by an emphasis on specified sexual activities or by exposure of specified anatomical area.

Adult Bookstore. An establishment that has as a substantial portion of its stock-in-trade and offers for sale, for any form of consideration, any or more of the following:
1.Books, magazines, periodicals, or other printed matter, or photographs, films, motion pictures, video cassettes, slides or other visual representations that are characterized by an emphasis upon the depiction or description of specified sexual activities or specified anatomical areas; or,
2.Instruments, devices, or paraphernalia that are designed for use in connection with specified sexual activities.
Substantial shall be defined as 20 percent of stock, 25 percent of floor area or 160 square feet of floor area and greater which is accessible to customers in the establishment.

Adult Cabaret. A nightclub, bar, restaurant, or similar establishment that regularly features live performances that are characterized by the exposure of specified anatomical areas or by specified sexual activities, or films, motion pictures, video cassettes, slides, or other photographic reproductions in which more than 10 percent of the total presentation time is devoted to showing of material that is characterized by an emphasis upon the depiction of specified sexual activities or specified anatomical areas.

Adult Mini Motion Picture Theater. A building or space with a capacity for fewer than 50 persons used for presenting material distinguished or characterized by an emphasis on matters depicting, describing or relating to specified sexual activities or specified anatomical areas as herein defined, for observation by patrons therein. The phrase "used for" in this definition shall mean a regular and substantial course of conduct and not a one-time presentation of such material.

Adult Motion Picture Theater. A building or space with a capacity of 50 or more persons used for presenting material distinguished or characterized by and emphasis on matters depicting, describing, or relating to specified sexual activities or specified anatomical areas as herein defined, for observation by patrons therein. The phrase "used for" in this definition shall mean a regular and substantial course of conduct and not a one-time presentation of such material.

Adult Sauna. A sauna that excludes minors by reason of age, or which provides a steam bath or heat bathing room used for the purpose of bathing, relaxation, or reducing, using steam or hot air as a cleaning, relaxing or reducing agent, if the service provided by the sauna is distinguished or characterized by an emphasis on specified sexual activities or specified anatomical areas as defined herein.

Adult Theater. A theater, concert hall, auditorium, or similar establishment characterized by activities featuring the exposure of specified anatomical areas or by specified sexual activities.

Adult Hotel/Motel. A hotel, motel or similar commercial establishment which:
1.Offers accommodations to the public for any form of consideration where patrons are provided closed-circuit television transmissions, films, motion pictures, video cassettes, slides, or other photographic reproductions that are characterized by the depiction or description of specified sexual activities or specified anatomical areas and has a sign visible from the public right-of-way advertising the availability of this adult type of photographic type reproductions;
2.Offers a sleeping room for rent with rates for a period of time that is less than 10 hours;
3.Allows a tenant or occupant of a sleeping room to sub-rent the room for a period of time that is less than 10 hours.

Adult Massage Parlor. An establishment where, for a form of consideration, massage, alcohol rub, fomentation, electric or magnetic treatment, or similar treatment or manipulation of the human body is administered, unless such treatment or manipulation is administered by a medical practitioner, chiropractor, acupuncturist, physical therapist, or similar professional person licensed by the state. This definition does not include an athletic club, health club, school, gymnasium, reducing salon, spa, or similar establishment where massage or similar manipulation of the human body is offered as an incidental or accessory service.

Adult Modeling Studio. An establishment whose primary business is the provision to customers of figure models who are so provided with the intent of providing sexual stimulation or sexual gratification to such customers and who engage in specified sexual activities or display specified anatomical areas while being observed, painted, painted upon, sketched, drawn, sculpted, photographed, or otherwise depicted by such customers.

Adult Sexual Encounter Studio and Rap Parlor. A business establishment wherein the patrons thereof are invited to discuss sexual matters or engage in sexual activities with an unclothed or partially unclothed person, and who pay a fee for such discussions or activities. This definition shall not include therapy sessions conducted by physicians, therapists and counselors licensed and regulated by the state.

Adult Sexual Paraphernalia Store. Any retail store specializing in the sale of paraphernalia, devices, or equipment distinguished or characterized by an emphasis on depicting or describing specific sexual conduct or used in connection with specified sexual activities.

Adult Specified Anatomical Areas. As used herein specified anatomical areas means and includes any of the following:
1.Less than completely and opaquely covered human genitals, pubic region, buttocks, anus, or female breasts below a point immediately above the top of the areolae; or,
2.Human male genitals in a discernibly turgid state, even if completely and opaquely covered.

Adult Specified Sexual Activities. As used herein, specified sexual activities means and includes any of the following:
1.The fondling or other erotic touching of human genitals, pubic region, buttocks, anus, or female breasts;
2.Sex acts, normal or perverted, actual or simulated, including intercourse, oral copulation, or sodomy;
3.Masturbation, actual or simulated;
4.Excretory functions as part of or in connection with any of the activities set forth in subdivisions 1 through 3 of this subsection.



Escort. A person who, for any form of consideration, agrees or offers to act as a companion, guide, or date for another person, or who agrees or offers to privately model lingerie or to privately perform a striptease for another person.

Escort Agency. A person or business association who furnishes, offers to furnish, or advertises to furnish escorts as one of its primary business purposes for a fee, tip, or other consideration.

(D) 17.104.040 DEFINITIONS: Section 17.104.040 (Definitions) is added to the Porter County Municipal Code to read as follows:

Day Care Centers. A facility: (1) licensed by the state, if applicable; (2) providing care for five (5) or more children or adults who do not reside in the facility, are present primarily during daytime hours, and do not regularly stay overnight; and (3) which may include some instruction.

Libraries. A public facility for the use, but not sale, of literary, musical, artistic, or reference materials.

Public Building. Any building owned, leased or held by the United States, the state, the county, a city/town, any special district, school district, or any other agency or political subdivision of the state or the United States, which building is used for governmental purposes.

Public Park and Playground. Public land which has been designated for park or recreational activities including, but not limited to, a park, playground, nature trails, swimming pool, reservoir, athletic field, basketball or tennis courts, pedestrian/bicycle paths, open space, wilderness area, or similar public land within the county which is under the control, operation, or management of the county or a city park and recreation authority.

Religious Institution. Any church, synagogue, mosque, temple or building which is used primarily for religious worship and related religious activities.

Residential district or Use. A single family, two-family, multi-family structure, or residential mobile home park or subdivision as defined in the Porter County Municipal Code. Said residential districts include, but not limited to RR, Rural Residential; R-1, Low Density Residential; R-2, Medium Density Residential; R-3, Medium/High Density Residential; RMH, Residential Mobile home and PUD, Planned Unit Development.

School. Any public or private educational facility including, but not limited to, nursery schools, preschools, kindergartens, elementary schools, primary schools, intermediate schools, junior high schools, middle schools, high schools, vocational schools, secondary schools, continuation schools, special education schools, junior colleges, colleges and universities. The term school includes the school grounds, but does not include facilities used primarily for another purpose and only incidentally as a school.

(E) 17.104.050 Site Review:Section 17.104.050 (Site Review) is added to the Porter County Municipal Code to read as follows:

Adult entertainment businesses may only be located in I-1, Light Industry and I-2, General Industry Districts. No adult entertainment business may be located in the I-1, Light Industry and I-2, General Industry Districts unless approval has been granted by the Technical Advisory Committee in accordance with Chapter 17.68 of the Porter County Municipal Code, as amended. An application for site review for an adult entertainment business shall be subject to the following requirements in addition to those in Chapter 17.68:

A.The owner and proposed operator of the facility shall file an
application for a site review with the Plan Commission Office in accordance with the Rules and Procedures of the Porter County Plan Commission;
B.The Executive Director