PORTER COUNTY PLAN COMMISSION
Regular meeting
August 24, 2005

M I N U T E S

The regular meeting of the Porter County Plan Commission was held on Wednesday, August 24, 2005 at 6:30 p.m. in the Administrative Center, 155 Indiana Avenue, Suite 205, Valparaiso, Indiana.

Those members present were Eric Biddinger, Rick Burns, Tim Cole, Robert Detert, Commissioner Bob Harper, Elizabeth Marshall, Herb Read and Kevin Breitzke, President. Staff members present were Robert W. Thompson Jr., Attorney Karen Tallian and Patricia S. Gibson.

Mr. Biddinger moved to waive the reading of the July 27, 2005 Plan Commission minutes and approve them as received in the mail. Mr. Burns seconded the motion, which carried on a unanimous voice vote.

Mr. Biddinger moved to waive the reading of the August 10, 2005 Plan Commission minutes and approve them as received in the mail. Mr. Burns seconded the motion, which carried on a unanimous voice vote.

Pending Business:

Case 05-FP-12. Petition of Timberland, LLC, P.O. Box 472, Valparaiso, Indiana seeking secondary plat approval for Timberland Subdivision (Damon Run) Phase 1, to be located on the Southeast corner of CR 900 N. and Meridian Road in Liberty Township. (To contain 60 lots on 40.38 acres. Property is zoned R-1. Con’t from July 27 mtg.)

William Ferngren stated I am from Hoeppner, Wagner & Evans. He stated here tonight I have with me Jack Barko, Charlie Ray and Mike Duffy. He stated this is Case 05-FP-12 and what we are here tonight seeking is secondary plat approval of Phase I, Timberland Subdivision, which is formerly known as Damon Run Subdivision. He stated this particular Phase consists of 59 lots on approximately 40.38 acres.

At this time, Plan Commission member Dan Whitten joined the meeting.

Mr. Ferngren stated again we are here looking for approval of this particular component of the plat this evening. He stated the project is located at the southeast corner of CR 900 N. and Meridian. He stated it is also part of what is commonly known as


the Damon Run Conservancy District, which is a district established by Court Order in Porter County and includes provision of sanitary sewer domestic water storm water management among other features. He stated the history of the development is the plat approval was obtained in February of 2003 with a 9-0 unanimous approval and that is the plan you see before you on the tripod. He stated the original developer conveyed the property to the current owner who through his diligence and those sorts of things it took a little bit of time for us to get back before you including of the establishment of the conservancy district and other things which simply took some time before we could finally get to applying for this secondary plat approval of this phase. He stated in June of this year this particular Phase I was reviewed by the Technical Advisory Committee in accordance with your County Ordinance 16.20.010. He stated the Technical Advisory Committee provided a unanimous approval in accordance with that ordinance and forwarded the matter on to this Body. He stated however, at that meeting they suggested it may prove helpful if the Plan Commission was given the opportunity to know what the construction schedule was for the district so we agreed to continue our hearing date and provided that schedule as requested. He stated at the July 13 Plan Commission meeting after we presented the evidence with respect to Phase I there was a lot of discussion and this Commission referred the matter back to the Technical Advisory Committee for discussion of four items. He stated those items included the opportunity for recreational trail along what use to be the Gary Inter Urban Railway, which is also along the northern property line; whether application was in fact made for rerouting of Damon Run Ditch; how the discharge of water into the existing wetland would be handled; the assistance and remediation of drainage problems on the west side of Meridian Road. He stated on July 22 we went to TAC and discussed each of those four items. He stated again TAC approved what we outlined for them and referring the matter back to this Commission. He stated on July 27 we came back with our first opportunity to attend to address those four particular items that TAC approved. He stated unfortunately we were not given the opportunity to present what we had discussed and the efforts that were undertaken in that previous two week period but we are prepared to do that for you tonight. He stated the four items again are no. 1 relating to the recreationally trails. He stated the engineers and Mr. Thompson contacted Mr. Melendez from the Porter County Parks Department and met with him. He stated needless to say the Parks Department was very excited about the opportunity for a recreational trail on this property. He stated that was agreed to be provided. He stated this recreational trail is located all along the north and the west property line. He stated it is approximately eight feet, crushed limestone. He stated this is all done through working with the Porter County Park


Department again showing an effort of this developer to work with the appropriate Body’s when requested to do so. He stated in addition to the trail there is a large wetland area at the northwest corner of the property and there will be a lookout area provided off of the trail for people who are walking down the trail giving them the opportunity to come out onto this lookout and observe and enjoy the wetland area. He stated the second item was the ditch reroute for the ditch located on the property. He stated the application was provided which was requested. He stated on July 19 it was mailed to each Plan Commission member as well as being delivered to this particular location. He stated on a related note Charlie Ray from the Duneland Group personally traveled to Detroit and met with the Army Corps of Engineers to discuss the application and again showing the good faith effort with this particular developer to do the things the Plan Commission asked. He stated next we presented information to TAC about how the water will be treated before it gets to the wetlands and that was explained to TAC that there will be grassy swales in and about this property where the storm water will filter over this grassy area prior to entering the wetlands. He stated finally we presented plans to TAC addressing the remediation of the storm water issues on the west side of Meridian Road and CR 900 N. He stated those plans were submitted, reviewed and approved by the Technical Advisory Committee. He stated over the last month your attorney and I have corresponded on several occasions regarding this project, which has resulted in a lot of information being passed. He stated one of the items of discussion is phasing. He stated your ordinance expressly contemplates phasing of projects to occur. He stated primary plat is granted and when a developer goes through to develop certain portions of that the ordinance simply states that the developer needs to tell you what part they are going to secondary plat at that time and designate it as such. He stated that is exactly what we have done here. He stated we said this is primary approval of February of 2003 for Damon Run now known as Timberland. He stated we came to you with an application for a phase of the development indicated to you what it was and designated it as Phase I. He stated these particular phases are independent of each other as well. He stated the Duneland Group will go into an explanation about how these two phases really don’t have an affect on each other. He stated concerning the ditch rerouting. He stated as I explained the permit application as requested was mailed to each of you and delivered to this building. He stated this is not part of Phase I. He stated it is expressly in Phase 2 or even a later phase. He stated its in no way affects is no way including and no way encroaches upon what we are proposing for you as Phase I tonight. He stated it is not necessary for this phase and again Duneland Group will explain to you why that is true. He stated soils for construction was


briefly touched on at the previous meeting. He stated as I indicated at that time all the home construction will be done in accordance with your local building codes. He stated if there are any sites that are not conducive to basements crawl space construction will be undertaken at that time. He stated that will be done on a case by case site by site basis. He stated this plat in no way circumvents our obligation or our builders obligation to comply with the appropriate building code and to build the building according to that code and provide the building that meets the health, safety and welfare requirements required by your building codes. He stated another issue or concern that was brought to the attention of the developers was that there were commitments made when the primary plat approval was given back in 2003 and we recognized that and we agree that there were commitments that were made. He stated with this plat there is no way any attempt to alter or modify any of the terms of those commitments or those commitments themselves. He stated in fact, we repeatedly indicated that this development fully includes all those and we understand those and they are all part of this process. He stated one of the commitments was a commitment to filter storm water before arriving in a wetland. He stated as I explained to you a few minutes ago that is undertaken through a grassy swale system where the filtering of that water will occur before the wetlands. He stated the Duzur property, which is located to the south and in the February 2003 meeting there was a commitment made to clean several hundred of that ditch. He stated granted it is not very clear what exactly cleaning the ditch means and the Duneland Group will explain to you what that is. He stated that is part of this plan that is part of this phase. He stated this is something that will be done when this phase of the project is approved and construction is being undertaken. He stated after the last meeting we met with Mr. Duzur outside the building and the Duneland Group has met with him on a number of occasions and he indicated at least to us that he is in favor of this particular cleaning of the ditch and the project. He stated the last commitment made was the storm water on the west side of Meridian. He stated as I previously indicated plans for that were submitted to TAC and the Duneland Group will explain to you in more detail how that actually functions. He stated that commitment was made and that commitment is still made tonight as part of this plat approval. He stated this property as I mentioned is part of the Damon Run Conservancy District. He stated Judge Harper approved the order establishing that. He stated the Department of Natural Resources has approved the district plan. He stated the district plan includes providing water and sewer service to this property and the area. He stated the district is in place to provide those services as well as storm water management and other items. He stated it is part of an interval part of this development. He


stated without this development that conservancy district will probably not exist at least extending water in this direction. He stated the State of Indiana has expressly indicated that it is their public policy to get its citizens on domestic water and sanitary sewage treatment like we are proposing. He stated the State has recognized the importance of that and that is exactly what we are trying to do and exactly what the conservancy district was established to do. He stated one of the items Ms. Tallian had a question about and this Plan Commission had concern about and that is they wanted some local influence or some local control. He stated I can tell you that the developer is local, hires local people, engineers, lawyers, contractors and a number of them are here this evening. He stated it really is a local type of project. He stated with that aside the law simply requires local input and it cannot have the situation without local input. He stated the initial appointment of Conservancy District Board of Directors is done by the County Commissioners. He stated that was done. He stated after the project undergoes construction there are elections from the free holders in the district. He stated the free holder is the term under the conservancy act and that essentially means the property owner. He stated residents in this development whether it is lot 1 or lot 162 will be eligible to be on the Board of Directors of the Conservancy District because they are a free holder and a tax payer in the district. He stated should the residents in the area elect them by the majority to be on they are on. He stated it doesn’t matter where other people are located. He stated it is a locally controlled district and a locally controlled unit of government. He stated local control is hands down a mandatory situation for this particular district and any other for that matter. He stated turning now to the storm water drainage, which is something that has been a large topic of discussion.

Charlie Ray stated what I am going to do is explain basically the concept of the drainage on this project. He stated we will be using detention ponds. He stated what happens is when the rain comes down on an undeveloped field or site the water sheet drains to the ditch at a high rate of speed. He stated it runs into the ditch, which causes the ditch to rise up and the level will come up very fast. He stated this increases the velocity of the water moving through it. He stated that picks up debris and sediment and takes it down and deposits it as soon as the stream starts to slow down, which is probably why the Duzur site south of this is experiencing some problems. He stated what we will be doing is when it rains it will come down be captured in pipes run to the detention ponds. He stated these detention ponds will slow the water down by means of a small throttling pipe into the creek or wetland or wherever it would go. He stated what that does is that allows the water to go into


the creek at a slow rate. He stated in this particular case it is less than a ten year rate. He stated the creek doesn’t come up the sediment doesn’t come out and it is not deposited on the land to the south. He stated that is basically the principle that is going to be used on this particular site. He stated the ponds will be sized to take on 100 year rain that will meter it out at a ten year rate. He stated it would be like a ten year storm, which happens all the time, would be happening. He stated that is with the stream and the wetland. He stated Mike and Matt our drainage people can describe more of how it is going to work.

Mike Duffy stated I am from the Duneland Group. He stated the first phase water shed already is going up to the northwest corner of this site. He stated the water is going to be carried in storm sewers and pipes and brought up there and metered out through an existing standpipe that was put in by County Highway some time ago. He stated this takes the water down CR 900 and dumps it back into this ditch at a release, which Matt can elaborate more on.

Matt Keiser stated I am with the Duneland Group and I am a drainage engineer. He stated this is an additional drawing showing the phase line of the subdivision. He stated the phase line is in green and shows two phases along with cyan line, which is underneath the green. He stated the cyan line is directly out of the drainage manual for a subdivision design. He stated as depicted on the drawing you can see that Phase I is completely inside of the cyan line meaning the water from the west side will be taken to the northwest into that large wetland and released out through the standpipe. He stated Phase 2 will be routed through a different storm sewer system. He stated the two are unrelated. He stated the storm sewer in the east side does not need to be put in for the west side construction. He stated this was done because of topography and there is a large ridge that runs through this and good engineering provides to leave the land the way it currently lays for topography. He stated on the west side if you look on the west side of CR 900 we show the additional storm sewer system that was being put in to pick up that lot on the other west side and south side of CR 900 and Meridian. He stated we are unable because of elevations to drain that water into the storm sewer system and into that wetland. He stated however, we are able to transfer that down to the south with the conservancy district and meter it into low land that is to the south of this property. He stated it will be contained on this property, however. He stated the Porter County Ordinance allows for a ten year pre-developed rate. He stated this is something that Mr. Ray touched on. He stated the pre-developed rate of the entire site was calculated to allow 40 cfs release rate after this gets developed. He stated we have designed this


site to release 15.8 cfs after it gets developed or 40% of the allowable rate.

Mr. Ray stated what he is saying is that we are considerably lower than what the County will actually allow for release. He stated the other thing I would like to touch on is cleaning of this ditch to the south. He stated what has happened is the water coming down through here because of the water rushing into the ditch and bringing down the sediment when it hits this point here it starts to flatten out and deposits…it is pretty much…the ditch is not defined. He stated it is flattened out considerably. He stated so what would happen is we would go down through here and redefine this ditch. He stated that is what I was up at the Army Corps talking about earlier this week. He stated what we are doing is working with them on that. He stated actually we will be cleaning the ditch. He stated the other nice thing is everybody wonders who’s going to take care of everything here. He stated this of course falls underneath the conservancy districts. He stated the conservancy district takes care of all the maintenance on the ditches, the detention ponds and everything else that is in here.

Mr. Ferngren stated to conclude this developer has worked very hard on this project. He stated he has developed other property in the area and I believe through the other development and this one has shown willingness in good faith to continue to work with County officials and meet with County officials to provide information and do the things that are necessary to accommodate the county and to provide for a good development. He stated we are only here tonight asking what we are lawfully entitled to, which is secondary plat approval of this phase of the development and ask that this Commission make its decision in accordance with Indiana Law that requires approval for the same. He stated with that we respectfully request your approval.

Mr. Whitten stated I will defer my questions for later.

Mr. Detert stated I will defer for now.

Mr. Burns stated you said that you met with the Army Corps of Engineers. He asked did they give you approval?

Mr. Ray stated no. He stated we went up to discuss what they would allow us to do and what we are doing is preparing drawings to send back to them on it. He stated what they want to do is they don’t want us to deposit that sediment so it doesn’t go back into the ditch. He stated so what we are doing is we are pulling it out and actually taking it away. He stated so we have to haul it away.


Mr. Burns asked so you are waiting for approval or do you have approval to do that?

Mr. Ray stated we would have to get approval for that. He stated they are working with us on it.

Mr. Biddinger stated I think I will defer as well.

Mr. Cole stated I guess most of you know my thoughts on this. He stated I am a residence of this area and have been all my life. He stated certainly no stranger to development and not all of us are antagonistic to development but of course Liberty Township is dear to our hearts and we want the best there is for Liberty Township. He stated I think we all agree on that. He stated as I have said before I would have voted against the primary plat if I had the chance. He stated not specifically against development per say but perhaps through the method of this development. He stated I still feel that this is too dense for this area. He stated this is urban fringe development in a rural area and against the accepted Comprehensive Land Use Plan. He stated the soils in this area are not recommended for construction and basement construction in particular would not be recommended and we have addressed that. He stated I have also previously commented on the lack of recreational area planned for this subdivision. He stated in reading through some of the documentation I have noticed that the unnamed tributary of Damon Run that snakes its way through the east end of Timberland has been variously called seasonal ditch, intermittent stream and natural drainage ditch. He stated I have lived in this area for 66 years and I can tell you unequivocally that this is a spring fed stream that has always fully flowed into and out of this proposed development. He stated it has had water ten inches deep and six feet across during the driest times. He stated with this being likely the driest spring and summer in most peoples memories and until the rains in the last two weeks it was measured at a point at 78 E. CR 900 N. to be eight inches deep and five feet across on an average across several feet of that flowing stream. He stated it was flowing. He stated it was moving. He stated the fact that it appears both deeper and wider at the south edge of the proposed Timberland leads me to think that there might well be more springs, active springs, within the subdivision area feeding the stream. He stated I really should insist that this Board and I am going to insist that this Board and the developer begin thinking of this as a continually flowing spring fed stream and stop using words such as drainage ditch, seasonal and intermittent. He stated it is not a ditch. He stated just because it looks like a ditch. He stated it is a stream of water spring fed. He stated on the other hand I have to commend the developer for a quick concession to provide a


walking path and wetland outlook the answer to some of the recreational area that I was concerned about. He stated two amenities that I feel will go far in aesthetically improving this proposal as well as provided the residents with recreation and the beginnings of a safe pathway that can be used by the area children. He stated I am also very much in favor of the conservancy district formation. He stated it is much needed for Liberty Township and I hope to see it expanded along the gaps and further north by incorporating Liberty Township citizens on this and that has been addressed. He stated I think that this is a favorable point for Liberty Township. He stated I guess I find myself they call it the “Horns of the dilemma.” He stated I don’t want the subdivision but yet I like the amenities provided with it. He stated I am not entirely sure until I hear the rest of the Board and their comments just exactly how I will vote, but I will insist that if we do vote for approval of this Phase I that it will not require approval of Phase II as platted. He stated if changes must be made for Phase II then those changes must be made before approval of Phase II. He stated approval of Phase I is not going to guarantee approval of Phase II as it is shown here. He stated I want that essentially put in any motion of approval if there is such a thing.

Mr. Read stated incidentally that Corps of Engineers permit had a seasonally dry was the term used. He stated what we are concerned with is that portion of this waterway that goes through your client’s property. He stated it might be dry in the very upper reaches but certainly not where it goes through your property. He stated I have some other questions here that have not been addressed. He stated the very first thing that we were trying to determine was there a difference between the layout as approved in 2003 and as we see it now in 2005. He stated so I asked for the Plan Commission staff to provide me with the drawings that were submitted in 2003 to the 2003 Plan Commission, which they did. He stated a similar drawing, actually an identical drawing, was submitted to me fairly recently by Mr. Ferngren. He stated a funny thing happened on the way to the bank as the saying goes. He stated the drawing that was supposedly submitted to the Plan Commission in 2003 has a revision date of 2005. He asked now by what magic or crystal ball is occurring here? He stated also that revision in 2005 says revised water plan. He asked what was that revision and how did a revision that was done in 2005 show up in 2003?

Mr. Ray stated it is the water company. He stated the water company reviews the plans for putting in water systems. He stated when they send it back then what we do is we change the water system that we have to meet their specifications. He stated that is why it would say revision for the water.


Mr. Breitzke stated for clarity the preliminary plat does not require the construction drawings.

Mr. Read stated that is not my point.

Mr. Breitzke stated please let me finish. He stated several companies’ present plans with substantial construction drawings attach to the preliminary and that is not a requirement of preliminary. He stated so they probably amended the water distribution system more in placement on what side of the street and for taps for hydrants and those kinds of things.

Mr. Read stated I have no problem with that. He stated the point is I asked for the drawing and the Plan Commission asked for the drawing as it stood in 2003 and I haven’t gotten it. He stated now it might be the same drawing. He stated what that says to me and I have dealt with drawings for longer than some of you guys have been alive. He stated I have gone through many revisions on my own drawings as well as everything else. He stated the point is that somebody if you changed the original tracing and added the 2005 somebody should have kept a record of what it was the drawing in 2003 without the 2005 revision date.

Mr. Breitzke stated for clarity you do have a copy of the Plan Commission’s for 2003.

Mr. Read stated that is not was submitted to me.

Mr. Breitzke stated you were requesting from them the 2003 but you do have a copy from our staff, right?

Mr. Read stated I do not have, it happens to be Sheet A-2. He stated I do not have a print of Sheet A-2 that does not have the 2005 revision date on it. He stated so what that says to me is it is a different drawing. He stated well if it is a different print maybe there isn’t any difference in the layout. He stated maybe the only difference is the water line, which I have no objection to at all. He stated but in affect we did not get and I did not get I don’t know about the rest of the members of the Board the record drawing of Sheet A-2 of what this was approved by the Plan Commission in 2003.

Mr. Breitzke stated as a matter of record we keep those files. He stated we can only trust the files we have in our records.

Mr. Read stated what I got from your files was the drawing that had the 2005 date on it. He stated okay, I’ll pass it for the moment. He stated we don’t have a satisfactory answer yet


but I will pass it because I have a lot of things that I want to talk about. He stated Pond A or the wetland there was reference in many of these old hearings about an existing drain tile, a standpipe, in the wetland, the eastern part of the wetland. He stated that tile based upon the description in the hearings from the minutes of the meetings went north to the south side of 900 N. and then went east and dumped out somewhere to the east. He stated I could not tell where. He stated now this particular drain tile and standpipe is critical to maintaining & preventing overflow from the wetland. He stated what you are calling a detention basin is actually a natural wetland. He asked do you know where it is obviously in Phase II some place in your northeast corner. He asked do you know exactly where that existing drain tile exits or dumps into the existing drainage system?

Mr. Keiser stated the ditch runs to the northeast meets up with the right-of-way of 900 and follows the right-of-way of 900.

Mr. Read asked how far?

Mr. Keiser stated 800 feet, 900 feet. He stated they’re under the driveways. He stated there is a driveway with a large 36 inch steel culvert running…the first house that is on the south side east of this has a culvert underneath it. He stated the ditch runs all along the right-of-way and then turns and follows back to the south end.

Mr. Read asked at some point does it get to what we are calling a tributary to Damon Run.

Mr. Keiser asked you are talking about the pipe now?

Mr. Read stated I am talking about the existing tile. He stated none of this was shown on the drawings, which is one of my objections. He stated we didn’t have complete files. He stated it was essential for draining of the site to prevent overflow and yet it didn’t show up anywhere. He stated I think you should have included that if you know exactly where that thing is it should go on a drawing so that it is a matter of record where the intake is, which is shown in one of the drawings, where the standpipe is and where it exits. He stated then where it goes after it leaves the drain tile where it joins the Damon Run water way. He stated so we are into Phase II on this. He stated I think Mr. Ferngren you didn’t want to talk about Phase II at all last time. He stated I think it is on the table now. He stated we have to talk about it.




Mr. Keiser stated it actually does not run in Phase II of the subdivision. He stated it runs along the right-of-way east of this site to another manhole and then turns and runs at a 45º angle into the ditch off site. He stated where the ditch runs up that 45º angle and runs into the county right-of-way is where the County Highway put the pipe.

Mr. Read stated I understand that and Mr. Schelling explained that going back into the minutes here.

At this time, Mr. Read recognized Mr. Bartholomew to speak.

Mr. Bartholomew stated I live on CR 900 N. and the man has the water running the wrong way. He stated the water runs from the west to the east back to the south. He stated it does not run underneath that 36 inch culvert that he is talking about because it runs from the east to the west from that point. He stated I have lived there for thirty years and I know what I am saying.

Mr. Read stated I am now totally confused as to where it goes. He stated I think that there are others also. He stated it happens to be a very important point to maintain the level of Pond A. He stated this is the watershed plan going up stream from this unnamed tributary to Damon Run. He stated since this was made back in 2003 it goes past the church on old SR 49 and since then they have apparently cut in slightly or I am not sure how far into the high point north of the church. He stated they took away a lot of sandy like soil that was there. He stated that might change your arrow a little bit and add to the amount of area going to this unnamed tributary. He stated more importantly is they paved it all. He stated so now you have to have a fast run off. He stated I think that this would affect your figures. He stated I don’t know how much or where but I think that it would affect your figures. He stated in addition to that we have this Damon Run Tributary that runs from the southeast across Mr. Duzur’s property, which is off your property, and so you didn’t consider this at all in your total water, but it happens that these two branches join almost at the same spot. He stated one coming from the northeast down to the southwest and one running from the southeast up to the northwest. He stated the water that comes in that other ditch that you didn’t calculate for has a big chance of pooling and puddling at the lower end of your property and maybe backing up somewhat. He stated I think you are not being conservative in not considering that watershed to some extent. He stated maybe not all but to some extent I think you should. He stated now lets get to the road situation. He stated what you are doing is you are taking the first road to the west,


I forgot the name of it, and you are putting in the loop around so that you don’t have to have a cul-de-sac or a dead-end, which is one of the things that we brought up before. He stated that means you are running the roadway into Phase II of which I have no objection if you want to do that. He stated that means that we have to talk about Phase II to some extent anyway. He stated now before you put that roadway in that loop of the roadway you have to put in some storm drainage and I presume you are going to put in your gutters and whatever piping goes underneath the road, which is some of your storm piping and your curb gutters and a portion of your sanitary sewer also goes in there. He stated part of that if I am reading these drawings correctly discharges into that wetland or detention basin that is in the lower corner. He asked is that correct?

Mr. Ray stated yes it is correct.

Mr. Read asked can you do that lower corner detention basin with or without moving the ditch or the water way?

Mr. Ray stated yes.

Mr. Read asked are you going to do it?

Mr. Ray stated I guess we are a little bit confused. He stated we are trying so hard to work with you guys. He stated first of all we had it just coming down and dead ending with “T’s” on it and then you mention something about having the road continue through in one of your letters. He stated so we said okay we’ll go ahead and put the road through. He stated it is a considerable cost.

Mr. Read stated we didn’t say put the road through. He stated when you first came in you had dead end roads. He stated we leave it up to you to say what you want to do and it would seem to me that you either have a choice of making a change for the cul-de-sac or doing what you are proposing to do. He stated I have no objection to you doing what you are proposing to do.

Mr. Ray stated I guess we didn’t know really what you wanted us to do. He stated if you want us to put the road in we will put it in.

Mr. Read stated the letter from our attorney says it is not up to us to solve these problems. He stated it was a problem because it was a dead end. He stated okay let’s go on to something else. He stated let’s go on to something that I am very interested in and that is the water quality of the storm



water and where it goes and what kind of treatment it has. He stated in 2003 the representative made some promises. He asked do you agree to meet those promises that were made in 2003? He asked should I read the promises to you?

Mr. Ferngren stated the commitments that were made in 2003 as part of the approval I stated earlier tonight remain in place this evening.

Mr. Read stated let me read it to you. He stated it says, “He stated” this was the petitioner at that time, “the developer has elected in Damon Run to hold himself to much stricter design standards in terms of storm water release and water quality issues then the current standards and ordinances that the county calls for.” He asked do you subscribe to that?

Mr. Ray stated yes.

Mr. Read stated then it goes on to say, “The standard that the developer was following has held himself to is increase storm water runoff quality.” He stated not just maintain it but he is saying to increase it.

Mr. Ferngren stated that is correct.

Mr. Read stated now I am going to ask you how are you going to do this? He stated a grassy swale…

Mr. Ray stated we have hired a soil scientist to work with us on this so the grassy swales or whatever he tells us to put in there we put in. He stated what that will do is not only will it knock down the quality but it will knock out the sediment that can be pulled out of there, which will not be going into the wetlands. He stated that is what we are trying to do.

Mr. Read stated let me say one other thing. He stated grassy swales what is mentioned in here is special wetland vegetations.

Mr. Ray stated exactly.

Mr. Read stated this requires not just long grass going down.

Mr. Ray stated we realize that and that is why we hired a soil scientist to work with us on that.

Mr. Breitzke stated it was one of my requests from the beginning. He stated we have a wetland there. He stated there


was no requirement. He stated no open space, no wetland protection and no easements. He stated they agreed to have experts come in to do specialize planning because this is the type of thing…that is one of those things. He stated I agree with you Herb.

Mr. Read stated I commend you that you brought it up repeatedly in these TAC meetings and the previous…

Mr. Breitzke stated they are trying in earnest to work with us, I think.

Mr. Read stated we have these cases where the back of the lot is partially in the wetland. He asked how are you going to treat that? He asked are you going to identify where the wetland overlaps the back of the lot?

Mr. Ray stated yes. He stated in fact the developers have done another project where the same thing has happened. He stated we have defined the individual lots indicating where the wetland is so when a person purchases the lot they realize this is indeed a wetland and the requirements that they are not allowed to fill it and things like that. He stated in fact we are doing it now in Eagle Ridge, which you approved earlier this year.

Mr. Ferngren stated as part of the restrictive covenants that we provided as well is language limiting any kind of disturbance in that area, construction in that area. He stated if it is the Commission’s preference we can specifically recite that on the deed that is binding on the grantee and its successors and all owners of that property.

Mr. Breitzke stated I will add to that that we requested and were given wetland preservation easements over portions of the lots along the wetlands. He stated one of the things that you and I find fault with our own wetland ordinance is the fact that they had an easement and they eliminated the easement when they did it, which would have been a higher protection. He stated easterly it tapers but it increases as they go easterly.

Mr. Read stated that takes care of the backs of the lots. He stated however, you are collecting runoff water from the streets and gutters, which would be contaminated with salt, grease, oil and whatever and putting it into a pipe. He stated that pipe goes into what you are using as a detention basin is a natural wetland. He stated so that pipe goes into a natural wetland. He stated if I am looking at this correctly over here some place. He asked how are you going to treat that?



Mr. Ray stated we are going to be putting in wetland plants…

Mr. Read stated you can’t grow grassy swales in a pipe or a gutter. He stated so it has to be outside of the pipe or gutter.

Mr. Ray stated I agree. He stated we have committed to that.

Mr. Read stated I have some other things I want to take up but I will pass because I am holding up the two on my left.

Mr. Whitten asked are we saying that when it comes to secondary plat approval that the open space ordinance does not apply?

Mr. Breitzke stated this preceded the open space ordinance.

Mr. Whitten stated I thought I read something that said secondary plat approval will be subject to this ordinance. He asked is this not right?

Attorney Tallian stated I sent around a legal opinion on this about probably four or five months ago in a letter.

Mr. Whitten stated let’s talk about what your opinion is now.

Attorney Tallian stated my opinion hasn’t really changed and if you want me to get it out I will get it out. She stated I would rather do that.

Mrs. Marshall stated I want to go back to the Army Corps permit. She asked why was it only applied for in June of this year?

Mr. Ray stated because the developer purchased this property from another developer. He stated what happened was the first developer got the approval and he sat on it. He stated what happened was…Mr. Ferngren might be able to explain this better than me.

Mr. Ferngren stated that property was platted in February of 2003 as you see it tonight. He stated this property was acquired by this particular developer in late December of last year. He stated this particular developer hasn’t owned the property very long but once he did acquire the property he began to put the wheels in motion again to start the secondary platting process. He stated the delay between the initial plat approval


and when this current gentleman purchased the property the fact that the previous owner didn’t do anything is through no fault of this particular guy. He stated as soon as he did acquire the property he put those wheels in motion to say “Duneland Group let’s go. Let’s do this and get the permit applications filed. Let’s start platting this property.” He stated coupled with the fact that trying to get the Conservancy District up and running takes a lot of time. He stated it takes a lot of effort and it just simply took this amount of time before we could get to that.

Mrs. Marshall stated in submitting this for this permit you said you had gone to Detroit to talk to the office there. She asked did you get any consensus or did you just simply present your plans? She stated we have nothing in writing that says we are going to give this consideration as far as the Army Corps is concerned. She stated then comes a period that people will want to challenge this permit and they have a right to do that.

Mr. Ray stated what happens is when they get all the information they need put together they advertise and it will be advertised locally. He stated then what happens is you have a 30 day period for people to write in and express their concerns or whatever. He stated after that period of time they look and see what they have and they have up to 120 days to make a decision on what they want to do. He stated they can say that we can move this but we might you to do some remediation down here or they want us to make wetlands over here. He stated there are some things that they can do. He stated we don’t really know until the people remonstrate against it. He stated as soon as they get that information then they sit down and go through their guidelines talk with their field people and that is where it goes. He stated right now what we are doing is sending the final information to them so that they can have and hopefully they can advertise next week. He stated the reason that is so late in happening is because the developer who we worked with put everything on hold because they were in the process of getting the district up and running. He stated the sale didn’t take place until the end of the year and by the time it came around to everything finishing up we were told to jump on it. He stated that is what happened.

Mrs. Marshall stated we are still out 120 plus 30. She stated we are still out five months at minimum.

Mr. Rays stated I did ask them about that and I asked them how long did it really take. He stated we have legally 120 days but it usually takes a maximum about one month. He stated that is what they told me.



Mr. Read asked are you going to correct the seasonally dry phrase that you use?

Mr. Ray stated actually that came out of their stuff. He stated we utilized their information to fill out the application so I will call them and let them know. He stated we even sent them a video of the stream itself and there was water running in it. He stated we are trying to be as honest as we can about all of this. He stated it is not like we are trying to skirt around something or misrepresent.

Mr. Read stated I know there are some records out there that are wrong. He stated we are dealing with reality here.

Mr. Ray stated we know that and that is why we sent them a video of the stream itself.

Mr. Ferngren stated as Mr. Keiser pointed out the drainage the reason it wasn’t applied for at the time when secondary plat was applied for Phase I because it is in Phase II. He stated the wheels being put in motion and filing these applications and when the engineer felt it was the appropriate time to do.

Mrs. Marshall stated you have talked about Phase I and the other phases. She stated since you brought it up I want to talk about it also. She stated you are the ones that are suggesting that this be phased. She stated if this Plan Commission recommended that this whole project be one total project because I think some of us what I am hearing is that we believe that the drainage for Phase I enters into the Phase II that you are saying that is going to be Phase II. She stated so phasing may be legal just like spot zoning is legal under the law but I think that if the Plan Commission would suggest to you or tell you that this should be one whole subdivision because now you are even saying that you are going to put some of the roads in order to avoid stub roads and cul-de-sacs. She stated I know that it is legal to say you are going to phase it. She stated I think that if this Plan Commission and I are hearing that among these members is that if this should be perhaps a subdivision not Phase I or Phase II. She stated I am wondering why you keep saying and I know phasing is legal. She stated I know that but why should you have the option to say that it is going to be phased when in fact the Plan Commission is the one that tells you what they are going to give approval for.

Mr. Ferngren stated my reaction is you could not have said it more clearly yourself that it is legal and we can do this and it is common place to do this. He stated that is what we elected to do for a number of reasons. He stated like Charlie mentioned


earlier we are trying to work with you. He stated if the traffic flow was an issue. He stated drainage that is independent. He stated Mr. Keiser has explained that. He stated we simply elected to phase this project. He stated as you mentioned the ordinance contemplates it and it is legal.

Mrs. Marshall stated I am saying that but what if we told you it had to be done as one subdivision.

Mr. Ferngren stated I suppose we would disagree.

Mrs. Marshall stated I think that there is a misunderstanding here. She stated I think that you think that going to the TAC committee is the way that and I read it a number of times that we have a list at TAC that we check off this stuff and I am going to agree with you at some time I think you can’t demand any more of a petitioner. She stated I think that we have to come to an end with this. She stated we have to say this is what we want and not add on anymore. She stated I think that in these minutes that I read that you have avoided some of the questions and some of the concerns. She stated TAC is comprised of five members if I remember right. She stated so we have the Highway Department who is going to talk about the impact on the roads. She stated we have the Health Department who is going to talk about where the sewage and the water and the health aspects of this and they don’t address anything else. She stated we have Soil Conservation and he brought up in one of these TAC meetings the fact that there is going to be some drainage problems and there is going to be some houses that cannot have basements. She stated but Mr. Ferngren in one of the recent meetings said you are bringing up something that we should have been past. She stated we didn’t get an answer the first time around. She stated so anything that happened with another developer or anybody else you need to answer those questions. She stated sometimes I think that you just sit there and you don’t answer them. She stated I don’t understand why.

Mr. Ferngren stated I am trying to answer all of the questions that I am being asked. He stated if you ask me a question I will answer your question.

Mrs. Marshall stated just like you said phasing and it is legal. She stated I know it is legal. She stated maybe this is not what we want in this subdivision. She stated lets see who else is on TAC. She stated the County Surveyor. She stated he sees to it that we get the plans. She stated the purpose of TAC when it was established fifteen years ago or so was that we wanted to get all of the technical information together so that the Plan Commission would not sit here all night to discuss this


subdivision. She stated there should be a letter in the file from the Highway Department and there should be one in there from the Health Department. She stated then you should send out plans so that we can review them with what we each have to offer. She stated the other person is Mr. Thompson I believe. She stated he doesn’t speak for any of us. She stated he is there to keep the record and to get all the stuff together.

Mr. Breitzke stated also to read the check list we created as a Plan Commission because that is what we created.

Mrs. Marshall stated but sometimes we don’t get all the things that are on this so called check list. She stated I don’t like that word.

Mr. Read stated the minutes of these TAC meetings does not reflect that whether or not some of these answers have been submitted and whether or not the TAC people accepted them.

Mr. Breitzke stated to Mr. Read, please let Mrs. Marshall finish what she was saying.

Mr. Read stated okay.

Mrs. Marshall stated I appreciate that and I think he understands what I am trying to say here. She stated he is helping me.

Mr. Ferngren stated you haven’t asked me a question but I presume that you are correct. He stated there are five members on TAC and you correctly identified who those people are. He stated each of those people have particular expertise. He stated Mr. Breitzke is on that Committee. He stated he knows drainage and he can review drainage calculations and I presume that once that check list is gone through the Technical Advisory Committee is approving or comfortable with the things that your Subdivision Control Ordinance requires. He stated otherwise they would not send us out of TAC. He stated we go to TAC on more than one occasion. He stated it is very rare when it is just one meeting. He stated it is often times more than one. He stated that is when the technical components insure compliance with the Subdivision Control Ordinance and your standards are addressed. He stated Mr. Thompson points out the deficiencies at that point and we come back and correct those.

Mr. Read stated if I may on the same subject. He stated let me give you an example. He stated the very last time that this went back to TAC after this Board kicked it back to TAC. He stated I have read those minutes of that meeting. He stated you


have a letter in here in which you said that TAC reviewed and approved what was said. He stated they may have but it doesn’t show up in the minutes. He stated there is no recommendation at all in the minutes one way or the other. He stated that is all we have to go on.

Mr. Ferngren stated we don’t create the minutes for TAC. He stated but we were at TAC and Charlie explained what happened at TAC.

Mr. Ray stated I was at the last TAC meeting and I specifically asked if there were any other concerns after what I addressed what we did. He stated TAC said no.

Mr. Read stated that doesn’t specifically say you have answered everything and approved. He stated we were looking for a recommendation from TAC.

Mr. Ray stated Kevin didn’t I ask if everything was approved and I asked did you have to take a vote.

Mr. Breitzke stated our direction wasn’t for a recommendation but to see through that these certain items followed that were suggested at the previous TAC, which he addressed in his report at the very beginning of this discussion.

Mr. Read stated what I am reading at the TAC meetings there is a wind up phrase or a wind up paragraph underlined.

Mr. Breitzke stated there probably was when this was forwarded originally to this Board that it met the minimum requirements or standards as set by this Board.

Mrs. Marshall stated I would like to talk about the drainage on CR 900 N. She stated I understand that the county paid for the drainage on CR 900 N. She asked is that correct?

Mr. Breitzke stated they as the developer wouldn’t know but I am of the understanding from Mr. Schelling that yes this was done many, many years ago by the County Highway.

Mrs. Marshall stated I think Mr. Thompson, in one of the minutes from 2000 something else, talked about when he was at the Highway Department the drainage on CR 900 N. She asked is that correct?

Mr. Thompson stated that is correct.




Mrs. Marshall asked Mr. Thompson what do you know about the drainage on CR 900 N.? She asked did the county put it in? She asked what was the purpose? She asked which way does it go?

Mr. Thompson stated I wasn’t the project engineer. He stated I just helped with the surveying on it. He stated in that situation I know the wetlands were coming very high and a lot of times with those wetlands there is a pipe that went underneath Meridian Road that was flooding those yards on the west side of Meridian. He stated also there was a catch basin series at the intersection there at CR 900 N. that was inadequate for handling the water flow. He stated they did not see any real control for how to maintain that level of that wetland or maintain it at a certain level without having to flood everything. He stated the Highway Department went out there and Ray Riddell was the project engineer on that situation. He stated we tried to find an outlet for at least those wetlands to try to direct the water to stop the flooding in that area. He stated we looked south, west, north is very short because of the rail road and east. He stated it was decided to take it east. He stated there is a pipe about half way in the middle of the green area I think. He stated I am just approximating. He stated it goes back into the wetlands a little bit and comes out and goes to CR 900 N. He stated they ran a series of pipes going down east along CR 900 N. He stated I can’t tell you exactly where but it does head back to the south again to outlet into the ditch. He stated I apologize I can’t tell you exactly if it is on this parcel or if it goes south or if it is on another parcel and goes to the south and into the ditch.

Mrs. Marshall stated this drainage was put on their property, wasn’t it?

Mr. Thompson stated it was run along the south right-of-way line of 900 N.

Mrs. Marshall asked is the petitioner going to use that drainage?

Mr. Ray stated yes.

Mrs. Marshall asked have you gone to the County and talked to…

Mr. Ray stated yes. He stated they are the ones that suggested it. He stated when we started this whole thing they are the ones who suggested using it.

Mrs. Marshall stated so we use county money to put in drainage that is now going to be used for a subdivision.

Mr. Thompson stated it was done back in 1994 or 1995. He stated here again I am not sure of the year but the whole purpose of it was to try to free up the flooding on the west side of Meridian basically in the southwest corner of Meridian Road.

Mrs. Marshall stated you are going to try to drain the corner of 900 and Meridian Road. She stated you are going to try to use the Conservancy District but you would say to better the properties like the Duzur property. She asked is that what I am hearing you say?

Mr. Ferngren stated a conservancy district can be established for a lot of different reasons. He stated one of them includes storm water management. He stated this property is in the conservancy district so it is going to be part of the storm water management for the conservancy district.

Mrs. Marshall stated the only names I know out there are Duzur and Gaither. She stated I don’t know those other people. She asked are they going to become a part of the conservancy district and have to pay?

Mr. Ferngren stated to my knowledge they have not approached the conservancy district asking to be annexed into the district.

Mrs. Marshall stated but you are going to do some work on the property in order to alleviate the water problem and you said something about Duzur agreeing to clean out some ditch or something. She stated that is part of the conservancy district that is going to do this.

Mr. Ferngren stated as part of the work that is associated with this project the developer has agreed back in 2003 to clean part of the ditch that is located on Mr. Duzur’s property. He stated Charlie, Mike and Matt have explained that to you and if Mr. Duzur or Gaither want to be in the district they need to approach the district if they want to be in there.

Mrs. Marshall stated from what you are saying they don’t need to get in the district because they are going to get drained.

Mr. Ferngren stated not with respect to what they are going to do here initially, no not at all. He stated that is all part of what is committed to being done on that ditch.

Mr. Ray stated not unless they want sewer and water will they have to approach the district and annex. He stated they would be able to because they are adjacent to it.

Mrs. Marshall asked is that going to be Indiana American Water?

Mr. Ray stated Indiana American Water.

Commissioner Harper asked Mr. Read will you tell me why you think that Phase II is affected by the way Phase I is drained.

Mr. Read stated one is Pond A. He stated we don’t know exactly where that goes in. He stated if the end of that tile or if any water goes in to the existing ditch down stream from where the split off is on the rerouting then there is a big problem. He stated at this point we don’t even know which way it is suppose to run when it gets in that tile. He stated if the water discharges into that existing water way down stream from where you peel off you have a water problem. He stated a real serious water problem. He stated if it joins the water up stream from where you branch off for the bypass then maybe you don’t.

Mr. Keiser stated it is up stream. He stated if you look on sheet 12 of the drawings the plan and profile. He stated the line is not shown, however, the existing sanitary manholes are shown along CR 900. He stated there is another manhole shown off site of this property, which is probably the second to the last one before the pipe turns and runs down to that ditch.

Mr. Read stated I haven’t had a chance to look at all of these. He stated at this particular point I don’t know if it does or not.

Mr. Keiser stated I am showing him the plan and profile.

Mr. Read stated I see 900 N. and there is a driveway up here.

Mr. Keiser stated these are the existing storm mains. He stated here is one, here is one all the way down. He stated I am pretty sure there is another one even further down because the ditch is still running at a 45º at this point, which is to the east of this site.

Mr. Read stated I see what you are showing me but I don’t see anything in here that shows where that existing tile joins the Damon Run Tributary.

Mr. Ray stated Kevin has the drawings for that. He stated we can get those from Kevin and pass them on to you.

Mr. Breitzke stated I don’t have them with me. He stated


what I am suggesting if this is a concern you could still run a tile along your east line and just take it south right into the ditch and not go easterly at all. He stated that could be simply solved to the existing water way right on the east line of the property. He stated that is a construction matter.

Commissioner Harper stated that is why I think we get in trouble when you come up with a suggestion like that. He stated now we are dealing with an ambiguity.

Mr. Breitzke stated it is not an ambiguity. He stated it is a solution…

Commissioner Harper stated we haven’t got an agreement on how we are going to do this. He stated that is what I see in these TAC minutes. He stated “Well we could do it this way. Oh yea, that sounds like a good idea” and then it goes out the window and that is what is wrong. He stated Mr. Read has taken a lot of time tonight and I know that is aggravating but you know it might be better if TAC took a little more time and worked through some of these the way I read these minutes.

Mr. Breitzke stated it is not that aggravating Bob and we do take a heck of a lot of time.

Commissioner Harper stated I look at these minutes and it is not Mr. Ferngren’s fault but I read questions that are not answered then onto something else. He stated if you sit down and read these TAC minutes they really don’t read that well. He stated we have two matters at the end of our meeting tonight about people who are being flooded by subdivisions. He stated maybe if we take a little more time.

Mr. Breitzke stated let’s get back to this issue. He stated you seem to have a problem with the water line, the highway ditch going east…

Commissioner Harper stated I want to know if Mr. Read is finished with the reasons he thinks the drainage from Phase I may affect Phase II.

Mr. Read stated there is one other thing and that is on page 2 we show various discharges into Outlot C and an overflow from the existing one into Outlot C also. He asked what is the capacity of Outlot C? He asked will it take what is shown in the existing one that shows an overflow from the existing one at the south end and then it shows the bypass going around that.

Mr. Ray stated that is in Phase II.


Mr. Read stated that is in Phase II. He stated that is right.

Commissioner Harper stated I think that is his point. He asked is some of the drainage in Phase I going into Phase II.

Mr. Ray stated no.

Mr. Read stated it is going into Phase II. He stated you said you are going to build Outlot C anyway. He stated that is really part of Phase II.

Mr. Ray stated I guess we are going to have to go back…are we going to complete the road around to make it a circular road? He stated if that is what you want then yes we will be doing Outlot C.

Commissioner Harper stated which will affect Phase II.

Mr. Ray stated well it doesn’t affect Phase II because when the pond goes in it actually goes into the stream the portion that wouldn’t be rerouted.

Commissioner Harper stated okay, I hear what you are saying.

Mr. Keiser stated also I would like to add that I believe the pipes that you are looking at are not discharging. He stated I believe that they are overflow pipes to contain the water elevation from those wetlands. He stated I believe. He stated those are not discharging into those outlets. He stated those are standpipes that are put in to control the elevation to keep the wetland growing outside of the preservation easements that our attorney said and delineated.

Mr. Read stated we didn’t say that you had to put in the loop. He stated that was your suggestion.

Commissioner Harper asked has anyone found those original plans that Mr. Read was asking for that weren’t marked up? He stated I thought maybe if they had he could take a look at them while I continue with a few more of my questions. He stated it sounded to me like everybody’s got a copy of them. He stated we all should assume that we all have a copy of them. He stated I am asking has anyone found them?

Mr. Ray stated I think we have a copy here.




Commissioner Harper stated if you do could you have Mr. Read take a look at them while I am asking a few more things. He stated I would like to recognize Mr. Bartholomew to speak on the way this water is running. He stated I would like him to stand up and explain to us what you have observed about this water while you have lived there that makes you draw the conclusion that you have drawn.

Mr. Bartholomew stated that man down there said was that the water coming on 900 runs to the east, which he is right. He stated but it turns at Moe Anderson’s house and goes south. He stated the water coming under that 36 inch pipe that he is talking about at the old Harold Esterman’s (sp) house runs from the east from the church out there by Tim’s house, it runs to the east to the west and it goes past Liberty School eventually. He stated the water that he is talking about does not go that far. He stated those manholes that the county put in with our good money to drain that land so that they could sell it originally does not go that far. He asked am I clear on what I said, Mr. Harper?

Commissioner Harper stated fine, thank you. He stated let me ask a question. He stated you are talking about it going down, you are going to take it down this road past this property, to the east of the property on the north side along CR 900. He stated then it turns around and comes back south. He asked is that correct? He stated when it comes back south where does it go? He stated it goes in a ditch that comes back south, right?

Mr. Ray stated correct.

Commissioner Harper asked where does that ditch run in relation to Phase I and Phase II of this property?

Mr. Ray stated it runs down into Phase II.

Mr. Keiser stated this line here is the current edge of bank.

Commissioner Harper stated this water is going to run down this ditch that runs through Phase I and Phase II.

Mr. Ray stated the amount of water is going to be no more than what is running right now currently because it is being throttled by that standpipe in the wetland.

Commissioner Harper stated because that ditch is part of your drainage plan that runs through Phase I and II do you have any plans for that ditch or is it just going to remain like it is?

Mr. Ray stated the plan is to reroute the ditch. He stated that would be the plan for a section of Phase II.

Commissioner Harper asked why would you reroute the ditch in Phase II? He stated I don’t know I am just asking.

Mr. Ray stated the original developer wanted us to reroute the ditch and they hired a company called Earth Source to do that. He stated after the preliminary plat was passed and of course we had done the engineering on it, after the preliminary plat was passed he pretty much put the project on hold and nothing ever happened after that. He stated I guess I’ll throw it out there and ask would you rather see the ditch where it is? He stated I need to get some feedback from the Board.

Commissioner Harper asked why would you move the ditch? He asked was it for lot size or was it because he thought it would be…I guess I am really interested in that. He asked did he plan to move the ditch for the convenience of the development of Phase II or did he plan to move the ditch or did you plan to move the ditch because you thought it would drain the project better?

Mr. Ray stated actually we didn’t plan to move the ditch. He stated he is the one that wanted us to move it.

Commissioner Harper asked do you know the reason for that?

Mr. Ferngren stated to accommodate the configuration of the plat that is before you, the plat that was approved in 2003.

Commissioner Harper asked it wasn’t a drainage issue then?

Mr. Ferngren stated no. He stated that relocation of that ditch would address the drainage.

Commissioner Harper asked what do you mean by that?

Mr. Ferngren stated the proposal to relocate the ditch is to allow for the configuration that you see before you tonight. He stated when it is relocated the relocated ditch will be the drainage.

Commissioner Harper stated I thought you said that the relocation was in Phase II. He stated it is not relocated in Phase I. He stated it is relocated in Phase II.

Mr. Ray stated that is correct.

Commissioner Harper stated Mr. Bartholomew I am going to recognize you one more time.

Mr. Bartholomew stated in his meeting in Detroit with the DNR or whoever and if they said “No we can’t redo this ditch or we can’t reroute his ditch” then what happens? He stated are we here for another eight months telling him he has to do something different. He stated we are either going to move the ditch for drainage purposes, which I don’t understand or if someone tells them they cannot move the ditch then what are we going to do with this property? He asked will they just leave it be?

Commissioner Harper stated yes that was a question I wanted to ask. He asked what happens if you don’t get approval up there?

Mr. Ray stated I guess we will have to follow what Mr. Cole said. He stated we will have to come back and have to reconfigure the property.

Mr. Ray stated there is one question I would really like to ask everybody on the Board. He stated I get feelings that you really don’t want the ditch relocated.

Commissioner Harper stated we have concerns about drainage and whether these two plans are together. He stated that is my concern. He stated I am just trying to get an understanding on what we are doing here.

Mr. Cole stated you probably hit the nail on the head there. He stated the concern is looking at the configuration of the relocated ditch it seems to me that the ditch might not want to stay in that location. He stated when you get some heavy rains…when I was down at that 36 inch culvert under 78 E. Mr. Cleveland’s property I noticed a mud line. He stated Mr. Cleveland was there and I said did the water actually comes up 18 inches from that little inch and a half rain that we had last week. He stated Mr. Cleveland said it did and it is usually higher than that after most rains. He stated that is an awful large increase. He asked what if we got a four inch rain? He asked what if that damn that the up stream owner is putting in suddenly fails and all that water comes through it is going to hit this relocated ditch and it is going to move it. He asked do you have plans for that?

Mr. Ray stated yes we do.

Mr. Cole asked what are they?

Mr. Ray stated a large portion of the relocated ditch is actually a pipe.

Mr. Cole asked a pipe? He asked how big of a pipe?

Mr. Ray stated it is a 72 inch pipe. He stated actually it is larger than what is required because the Drainage Board asked us to increase the size of it.

Mr. Cole stated 72 inches is big enough for a kid to get into.

Mr. Ray stated the reason it is 72 inches is because of the slope of the pipe so that it will convey the water. He stated it won’t run full. He stated that is what is required for the hydraulic radius.

Mr. Cole stated if there are springs in that area, perhaps they are dry, perhaps they are active, I don’t know and I haven’t walked that area. He stated I assume there are springs currently along the present configuration of that stream. He stated putting it in the pipe is going to prevent those springs from going into the drainage. He asked then what happens? He stated you will have a spring that has no where to go and it is on the edge of your property.

Mr. Ray stated we have been with a soils engineer and have dug holes all over that site. He stated we haven’t found a spring yet.

Mr. Cole stated you haven’t found a spring yet but more water comes out of it then goes into it. He stated I looked at both sides of this subdivision on that stream and there is more water coming out than there is going in. He stated that water is coming from somewhere. He stated well okay, that is Phase II. He asked are you going to be allowed to tube this stream? He asked what if they don’t allow you and now you are going to have an open ditch across the back of twenty or so properties here. He stated we see problems in Phase II. He stated I am just simply adding my concerns. He stated that is not part of Phase I so I think we should continue. He stated I think that those problems need to be thought about, addressed and part of any motion if so made to approve this secondary plat. He stated I think a lot of engineering still needs to be done.

Commissioner Harper stated Mr. Ferngren let me ask you this question. He stated I am sure that there is no one here more aware of our subdivision ordinance than you are and I am sure you are aware of this section so let me ask you what this section means. He stated “Primary subdivision approval shall be affective for three years unless renewed. However, all secondary subdivision shall be developed to the latest standards adopted by the Board and applicable codes and ordinances.” He stated it seems to me that the Green Space Ordinance applies to this. He


stated you may have a different take on that. He asked are you familiar with this section?

Mr. Ferngren stated yes I am.

Commissioner Harper asked what do you say to that?

Mr. Ferngren stated I think that the intent to that would be regarding construction standards more than anything else. He stated retro active application of an ordinance is contrary to the law in Indiana. He stated I provided Ms. Tallian a short time ago a series of cases that are on point that say an ordinance enacted after an application is filed can’t undo that application. He stated the ordinance even if it is reading it that way is in conflict with State Law. He stated I don’t know that that particular provision of your ordinance has ever been challenged but I am confident that if it was based on the cases I have provided Ms. Tallian old cases and new cases would say that that particular section couldn’t undo this plat and make it comply with open space. He stated that is my opinion.

Commissioner Harper stated it would seem to me that when this ordinance was passed your subdivision was developed pursuant to our subdivision ordinance, which was affect at the time your preliminary plat approval came through. He stated it was approved subject to our ordinance and our ordinance says if there are any new ordinances they shall apply. He stated I think that is what our ordinance says. He stated it is not like you came in and got…by the way if this wasn’t in or ordinance I think your argument would be much stronger if we didn’t have this section in or ordinance. He stated if we didn’t have this section in our ordinance that puts you on notice that if you came in later for a secondary it would be subject to the latest standards and the thought that it is contractor’s standards we aren’t in the business of setting contractors standards here.

Mr. Ferngren stated to interpret the ordinance that way. He stated the law in Indiana is very clear that you have to have concrete standards. He stated the developer has to know what the rules are when they develop the property. He stated you created the rules and we comply with the rules and to change the rules midway through the process the courts have repeatedly held is unlawful. He stated whether it is in this ordinance or not putting us on notice of that it is putting us on notice of no concrete standards. He stated we are not on notice of anything. He stated we are on notice that what is the rule then? He stated then there is no function of a primary plat. He stated if at any time thereafter you can adopt a new ordinance then that plat has no meaning. He stated people rely on the rules to undertake


their development and if you change those rules during the process they can’t rely on any sufficient standards and it is contrary to law. He stated I think that that particular ordinance would not stand. He stated Karen I gave you those cases and you are welcome to pass them to Mr. Harper. He stated it is well set of law that retroactive application of ordinances is simply not permitted.

Attorney Tallian stated the letter that I wrote on March 23, 2005 had to do with the affect of Judge Alexis ruling in the PUD case but the research that I did at that time, dealt with the affect of a retroactive affect of a court ruling. She stated at that time the opinion that I wrote basically agrees with what Mr. Ferngren just said that even the courts say that we are not going to make these opinions or these interpretations retroactive. She stated that was my opinion about that. She stated I was not specifically asked to do an opinion on Section 16.16.020, which is the section that Bob just quoted. She stated before I would give you an official opinion I would have myself at the Law Library but based on the research that I did before I think there is a conflict between what this ordinance says and what is Indiana Common Law having to do with retroactive application of ordinances, which is usually not allowed. She stated whether that is superseded by having something in your ordinance that says this I can’t tell you that as I sit here right now.

Commissioner Harper asked Dan do you have a copy of this?

Mr. Whitten stated not with me.

Commissioner Harper asked would you like to see it?

Mr. Whitten stated I have seen it before. He stated I guess I am just concerned. He stated I agree with Mr. Ferngren to a degree. He stated I think that Bob raises some interesting points. He stated I would like to have an answer because I think what we do here is going to set a precedence what we do for the next ones.

Attorney Tallian stated on the other hand you have done it many times since all those ordinances have been passed. She stated this Plan Commission has given secondary plat approval on a number of subdivisions that were enacted. She stated you have given primary approval prior to the Green Space Ordinance and the Plan Commission has not made that applicable.

Commissioner Harper stated I don’t think anyone has called this section of the ordinance to our attention either.



Attorney Tallian stated that may be true.

Mr. Detert stated we have dealt with this for a long time and we probably have taken more time then we should. He stated I do want to see this done right and I am not complaining but we do have other people on the agenda. He stated some points have been raised here that really trouble me. He stated I have never been comfortable with phases. He stated I would like to know if phasing is a right of a developer or whether this Plan Commission has a right to say you can phase it or you can’t phase it. He stated I think Liz Marshall brought that up. He stated what troubles me is that we are sitting here and we are talking about Phase I and then we are talking about Phase II and they are going to change a ditch, a ditch that we don’t even know that they can get changed. He stated the phases work together and the whole drainage picture is working together. He stated we got rid of the minor subdivisions and it had a lot to do with the drainage picture because we weren’t getting the whole picture. He stated we were getting these little bitty subdivisions and we didn’t get the whole picture. He stated I think we need the whole picture now. He stated I would like to know whether you have the right or we have the right to say whether phasing is appropriate.

Mr. Ferngren stated I think I have your answer.

Mr. Whitten stated in all do respect I would like to have our attorney give us that answer.

Mr. Detert stated I have always been an advocate of somebody who lives in the area knowing where the drainage goes rather than an engineer looking at a topo map or drawing that up. He stated I don’t think I got a satisfactory answer yet that a gentleman that says the water doesn’t run the way these guys are saying it runs. He stated I don’t feel comfortable with that. He stated also on the Open Space Ordinance you can say that there is a possibility that it applies and I am not saying that it does at this point. He stated I think it would be appropriate for us if we had that right to ask for open space or you could volunteer to put some open space in here and get rid of that monkey off your back. He stated that is up to you. He stated TAC forwarding I have to agree that we don’t get all the stuff and that is an internal problem we’ll have to work on. He stated I got a plat in the mail today. He stated it was a primary plat of the original subdivision here and I got it around 4:00 p.m. this afternoon. He asked what am I suppose to do with that between 4:00 p.m. and 6:00 p.m. when I leave to go to the meeting. He stated to me that information is too late for me to make a decision tonight.



Mr. Ferngren stated you did just receive the packet I mailed to you and you are correct. He stated none of the less all of this information is on file at the Plan Commission office. He stated this information has been here. He stated you have had ample opportunity to see that information.

Mr. Detert asked why did you mail it to us?

Mr. Ferngren stated the reason why we sent this information, now Mr. Detert you were here and voted in favor of this plat two years ago. He stated so was Mr. Burns, Mr. Biddinger and Mr. Breitzke and the rest of the people were not. He stated as a courtesy to these people because they didn’t understand what happened and they didn’t have all the information we sent them this and also to everybody else. He stated you had all of this information two years ago when you voted in favor of the plat.

Mr. Detert stated you are missing the point. He stated I don’t know what you are expecting me to do.

Mr. Ferngren stated I guess what I was expecting you to do is to understand that this Commission has asked for information. He stated Ms. Tallian in her correspondence says pieces have been dribbling in bit by bit. He stated the reason that it was bit by bit is because it was only bit by bit asked for. He stated finally we said we are going to get everybody all the information because we are not sure what everybody is looking for. He stated this information has been in the Plan Commission office for two years. He stated this is the same information Mr. Detert that you saw when you voted in favor of it.

Mr. Detert stated wait a minute, wait a minute. He stated I don’t like you making those accusing remarks. He stated I am saying that I got a packet in the mail today and I don’t know what you want me to do with it. He stated I am coming to a meeting and what do you expect me to do with it. He stated it has nothing to do with how I voted on this thing before. He stated there is no explanation and I didn’t see anything in there that said you wanted me to look at this or you wanted me to do something with it. He stated I guess one thing that irks me is to come to a meeting and have somebody drop on my desk something that I am suppose to read and absorb while somebody is out there talking about the project. He stated I don’t think that is fair to me and if you don’t put something in here as to what you want me to do I don’t know why I got this. He stated this has nothing to do with how I voted.




Commissioner Harper stated Mr. Detert asked the attorney that opinion and that there are two parts to that opinion that should be asked. He stated one what is the legality of the Plan Commission asking for the entire plan but more importantly what is the legality of the Plan Commission asking for the entire plan if they feel that for example this drainage ditch in the second plan may somehow have some affect on the drainage in the first plan. He stated I think it is a two phase question. He stated number one the question is can they just ask for it but number two can they ask for it if there are drainage issues being handle for the first phase that somehow is connected to the second phase, which I think is pretty clear they are here. He stated in fact not only are they connected but there is one of them that is unanswered and that is because of the Army Corps of Engineers. He stated I guess in addition to going to the library on the Green Space Ordinance there are a couple more things.

Mr. Biddinger stated as I listen to this we spent an awful lot of time talking about Phase I and Phase II. He stated something to consider is that Phase I is the only part of this that is in front of us right now. He stated what happens with Phase II, well I do agree it is difficult to look at Phase I without considering Phase II. He stated Phase II as the way it is brought up in front of us has to be considered separately. He stated if the tubing of the creek or the stream doesn’t happen what that leads us up to is the need to replat the entire Phase II. He stated if that happens the Open Space Ordinance comes back into play most definitely. He stated this could very well happen if this isn’t allowed. He stated the other thing is we are at the secondary plat approval and it has been brought up a number of times that this is simply administerial. He stated I talked to a number of my colleagues who serve on Plan Commissions across the State. He stated there is a good number of Plan Commissions where secondary plat approval is not even brought up for a vote. He stated it is simply signed off on and by State Law it only needs to be signed off on in some cases two members of the Commission or something along those lines depending on how their rules and ordinances are written. He stated I want to thank the petitioners for being as flexible as you have been. He stated I think we have a better plan because we have gone through and some great improvements and some great concessions made here. He stated with that being said I think it is the responsibility or my own opinion it is the responsibility of this Commission to pass this secondary plat approval.

Mr. Biddinger moved to approve Case 05-FP-12 for secondary plat.

Motion failed due to a lack of a second.


Mr. Detert stated I have a suggestion. He stated the people who are the most knowledgeable about this particular area are Mrs. Marshall, Mr. Read and Mr. Cole. He stated I still have some unanswered questions and I just brought them up. He stated I wonder if it would be worth while for these people to sit down across the table from the people most knowledgeable about that area and even if Mr. Bartholomew would like to show up it would be okay with me. He stated maybe we could get some of these things ironed out to the satisfaction of those that live there. He stated Kevin as the President I imagine you should attend that. He stated nobody else here could attend that because we would be breaking the law.

Mr. Breitzke stated we have to be careful of a quorum and that is what Mr. Detert is saying.

Mr. Detert stated I think we need to end some of this confusion and get everybody on the right track.

Mr. Detert moved to continue Case 05-FP-12 until the next Plan Commission meeting and in the mean time the committee I suggested, Mrs. Marshall, Mr. Read, Mr. Cole and Mr. Breitzke meet with these people and try to get some of these issues settled. Mr. Burns seconded the motion.

Discussion:

Mr. Ferngren stated I guess I would like to understand what the motion was to meet with these three folks here.

Jack Barko, 18013 Vivian Court, Orland Park, Illinois. He asked when will they meet.

Mr. Breitzke stated let’s go through Bob’s office to get the date together so we can proceed with this meeting.

Motion carried on the following voice vote:

Biddinger - No Burns - Yes Cole - Yes
Detert - Yes Harper - Yes Marshall - Yes
Read - Yes Whitten - No Breitzke - No

Case 05-FP-15. Petition of Hampton Downs, LLC, 237 W. 500 N., Valparaiso, Indiana seeking secondary plat approval for Hampton Manor Subdivision to be located on the North side of CR 500 N. between CR 250 W. and CR 175 W. in Center Township. (To contain 36 lots on 19.97 acres. Property is zoned R-1.)




Donald Bengel stated I am here this evening representing Hampton Downs LLC. He stated there have been no changes in this plat. He stated it conforms to the primary plat. He stated this is all one phase. He stated we will have sewer but it will have wells. He stated we did go to TAC and we had no issues when we went. He stated there are two detention ponds that will be under the jurisdiction of the Drainage Board and there will be assessments to pay for the maintenance of the ponds. He stated there are 36 lots but one of the lots has an existing house on it and that is lot 1. He stated it is almost a two acre lot and that is where the developers have their present home.

Mrs. Marshall asked why did we just get a copy of the preliminary yesterday?

Mr. Thompson stated I am sorry that was sent from our office.

Mr. Breitzke stated Mr. Bengel is submitting secondary plat of a subdivision that was approved some time ago.

Mr. Bengel stated the reason it took a long time to come here is that we are hooking onto South Haven Sewers and we were part of the EPA hold up. He stated we were waiting for the letter from EPA stating that Hampton Manor was accepted for hook ups.

Mr. Detert stated I have no comment.

Commissioner Harper stated I think we should get our answer on the Green Space Ordinance before we move on this. He stated we should continue this for two weeks to give our attorney time to give us her decision on the Green Space Ordinance. He stated this was past before the ordinance.

Mr. Bengel stated my understanding is that it has been for years that it referred to construction standards that any changes that came about we had to do those. He stated generally that has been in road specs and things like that. He stated I would ask for approval tonight because everything we have is in line. He stated the financing, the contracts and we are ready to go to beat the weather.

Mr. Read stated Mr. Harper brought up a point I hadn’t thought about but I think it is worth considering. He stated I have a couple of other observations or questions. He stated the land that it is on is higher than most of the surrounding land. He stated so you really don’t have any problem getting rid of the water on your land or on your clients land. He stated we just


held Damon Run proposal to a standard where they are required to show at primary the water shed and what is flowing in and what is flowing out. He stated that should have been done at primary. He stated I don’t see any evidence that it has been done from what has been submitted to me. He stated maybe someone from the TAC meetings can clarify that for me. He stated I know there was a lot of discussion about drainage and where it came from and where it goes. He stated I would bring that up and I don’t know the answer and whether that has been submitted.

Mr. Breitzke stated yes it is part of the requirement for preliminary plat.

Mr. Read stated I think we ought to see those things.

Mr. Breitzke stated the Plan Commission saw it when it was passed as preliminary plat. He asked Mr. Thompson when was this passed as preliminary plat.

Mr. Thompson stated February of 2004.

Mr. Burns stated if I recall there was a major discussion about the drainage and the adjacent neighbors were here and they did make some changes if I recall. He asked Kevin do you recall this.

Mr. Breitzke stated yes.

Mr. Burns stated there was a lot of discussion on this subdivision.

Mr. Bengel stated we had several meetings and we increased the size of our pond. He stated we feel that we will not adversely affect the neighbors. He stated I am guessing that 80% of the water goes to the north into our big pond. He stated just a little bit of water comes down to the front pond, Pond A, and there was extensive discussion on drainage. He stated I believe we satisfied TAC as well as the Commission at that time.

Mr. Read stated you said that most of it goes to the north.

Mr. Bengel stated actually to the northwest. He stated actually it leaves the west side of our property to the north end.

Mr. Read stated oh to the pond that is on the northwest part of your property.

Mr. Bengel stated the pond that is on Lots 28, 29 and 30.


Mr. Read stated it may not be very important maybe for our discussion but I wish some of the engineers around this place would take a landscaping course in school and make these detention ponds something rather than rectangular outlines.

Mr. Cole asked is Mr. Gesse satisfied with your changes in drainage.

Mr. Bengel stated no probably not.

Mr. Cole that is really my main concern, however, since Herb brought it up. He stated it has been one of my pet peeves, not much creativity or esthetic value is shown in these retention or detention ponds. He stated I really don’t know what problems Mr. Gesse might have with the drainage if you have provided adequate means to absorb it or retain it and prevent it. He stated unless you could perhaps improve the drainage that was presently on his property in some way.

Mr. Bengel stated we offered to put a pipe through his…he has a swale that runs out to a pipe across the road and we offered to swale it and that didn’t satisfy him. He stated we cut that release rate down from what is allowed. He stated I think that we made a real effort to protect him.

Mr. Detert stated I have nothing.

Mr. Biddinger stated on the landscaping the French Classical Design actually uses many straight lines so anyway…He asked were there any changes from the primary to the secondary.

Mr. Bengel stated no.

Commissioner Harper moved to continue Case 05-FP-15 for two (2) weeks until we have time to get Attorney Tallian’s opinion on the Open Space Ordinance. Mr. Burns seconded the motion, which carried on the following roll call vote:

Biddinger - No Burns - Yes Cole - Yes
Detert - Yes Harper - Yes Marshall - Yes
Read - Yes Breitzke - No

Public Hearing:

At this time, Mr. Breitzke read the rules of conduct for a public hearing.

Case 05-Z-10. Petition of Scot Shears, 6400 Mulberry Avenue, Valparaiso, Indiana for a proposed amendment to the


Master Plan to rezone a parcel of land from C-1, Neighborhood Business to I-2, General Industry to allow a construction company office with indoor and outdoor storage to be located at 973 N. SR 149 in Liberty Township.

Bill Ferngren stated I am from Hoeppner, Wagner and Evans and I am representing Scot Shears tonight who is the petitioner and owner of the property. He stated the petition is to rezone the property before you from C-1 to I-2. He stated generally speaking the property is located on the east side of SR 149. He stated the northerly boundry of the property is the B & O Rail Road line and the southerly boundary is the Indiana Toll Road. He stated it is a triangular shaped piece of property about 1.797 acres of land is included within the parcel. He stated Mr. Shears contacted me maybe a month and a half ago and asked what he needed to do and how do I go about getting my business located at this particular location. He stated Mr. Shears appeared before TAC and said that he wanted to develop this site for his building and TAC asked him what he did. He stated Mr. Shears told TAC that he was a concrete contractor and that he wanted to have his office there. He stated at that point Mr. Shears learned that that is not a permitted use under C-1. He stated Mr. Shears was under the impression because of his prior research the property was zoned C-1 expressly for mini-warehouses. He stated Mr. Shears thinking was that his building was much like a mini-warehouse it stores his own belongings. He stated the primary difference is that he may have a desk with a computer and a phone at this location instead of your traditional mini-warehouse where there isn’t anybody there. He stated he logically thought this is where he could be this kind of structure. He stated much to his dismay he found out that wasn’t true. He stated we researched a little bit and I asked Scot what do you do and what do you need to do. He stated he said that he has a small concrete construction company and I am renting a location now and I can’t grow at this location and he needed more space and a space to have his equipment and store some of his materials. He stated in speaking with Mr. Thompson and in reviewing the ordinance we discovered that this type of a general contractor’s office with indoor storage is only permitted in C-4. He stated Scot is a concrete construction company and most of his work is flat work sidewalks and driveways and that sort of thing. He stated part of what he needs to be able to store is sand or gravel, which he uses for the base and for the driveways, the basement floors and the sidewalks and that sort of thing. He stated this is not a big company. He stated the amount that we are looking to store at this location is not a large amount. He stated it is not a manufacturing component. He stated they are not making concrete at this location. He stated it is simply to store some of the raw materials he needs to provide the finished base for his


product. He stated the projected use for the building as shown on the larger drawing that you have before you tonight, 4700 square foot office building. He stated it is a very traditional pole barn type of a structure. He stated this is what you would see from the road. He stated it would be two office bays and initially Scot doesn’t how much he is going to take. He stated he may need to take it all. He stated initially the intent is to locate his business within one of those two ends and then use as much as this indoor space as he possibly can to accommodate his business. He stated he may end up leasing of additional space within the building should the approval be granted. He stated the building is located on the property generally in a north south fashion this way. He stated the existing entrance is here the Toll Road and the Railroad here. He stated the parking lot would be in front and the proposal is for a fence around the perimeter much like you would see up and down SR 149 at this time for the various businesses. He stated this would be a very similar type of look. He stated there will be drainage swales along here to route water to a detention basin. He stated Mr. Shears contacted an engineering firm, the Duneland Group, and had them fully engineer the site. He stated he has done that and all the drainage and swale and septic system, mound system located in this area all of it has been fully engineered, which then can be reviewed by TAC. He stated the building has a 60 foot setback along SR 149. He stated as I mentioned the Toll Road is here and the Railroad is there. He stated it is really a hard thing to see. He stated I took a bunch of pictures and I drove around out there and tried to get a little bit of an idea on how it looks when you are driving down SR 149 and quite honestly you can’t see this site. He stated the Toll Road abutment is very large. He stated the railroad to the south like all railroads has a raised type of feature to it. He stated this piece of property kind of actually sits down in a hole so it is not very visible. He stated it is a very unique interesting property to say the least. He stated as I mentioned there would be a fence around the perimeter to protect the site from anyone trying to get in there. He stated a little history about this property, this was previously rezoned C-1 in 1994. He stated the reason for that it was expressly done to allow for mini-warehouses at this particular location. He stated that didn’t work at this location. He stated this piece of property is very unique and has very limited types of opportunities to be used because of its location with the toll road and the railroad. He stated the mini-warehouse really didn’t even work to be a very good feature for this site. He stated that was 1994 and now it is 11 years later and Scot is not on the property that often long. He stated those people never put them in. He stated they realized that this was not a good location for that. He stated this particular spot because of the uniqueness of the property doesn’t fit very well


for many uses. He stated it happens to fit well for Scot’s use. He stated it is located on a highway and U.S. 20 is to the north and U.S. 6 is to the south. He stated it is along an industrious type of corridor. He stated it is a central location to allow him to get in and around his business area. He stated there is similar zoning in this area. He stated the first packet that I handed out to you there are other I-2 zoned properties and there are some commercially zoned properties. He stated there is also residentially zoned property even across the street but nevertheless up and down SR 149 there are other industrially zoned types of property. He stated as I mentioned mini-warehouses are permitted now, which is a very similar type of use and may in fact create a different type of environment on the property an absentee type of environment versus one where a building owner is actually on the site on a very regular basis. He stated the railroad sits up high and the toll road sits up even higher. He stated this property sits down in the hole. He stated it is a tough thing to see so even with the outdoor storage if you are coming from the south you will never see it. He stated if you are coming from the north you still probably will never see it because what we are committing to do is everything will be stored behind the building and as I mentioned there is a 60-foot setback right now to the front of the building and then behind the building there will be some open area where the vehicles can maneuver behind the building. He stated then the storage will be even further beyond that. He stated even traveling down the toll road it is not an easy place to see even from there. He stated these pictures were actually taken standing on the side of the toll road and the view is really obstructed. He stated there is a number of trees and the toll road right-of-way. He stated those are not his and those will remain. He stated everybody else driving down the toll road was going 65 mph and maybe even faster. He stated the opportunity to see this property even as fully developed is very, very low. He stated again all the storage will be outside behind the building. He stated there will be fencing along the front and it is really not a visible thing. He stated by the time you get the building set in there and the parking lot etc. it is a very small area and again it is conducive to what Mr. Shears business is. He stated it is a small concrete company to store small amounts of sand and gravel. He stated to explain how he would store these it would be much like you would see; maybe the best example would be Reed’s Nursery, where they have the concrete barriers. He stated the sand would be store in one and the one next to it would be the gravel. He stated so his equipment can get in there with a front end loader to pick it up. He stated that would contain all of the materials within these barriers. He asked why I-2. He stated my biggest concern when Scot and I talked about this is that there are a lot of things that can be done in an I-2. He stated this


is an industry district. He stated there is only one more that I would say is higher than the I-2 and that is the I-3. He stated again the reason is because the need for the contractor with the outdoor storage and that was the reason that we selected that. He stated we recognize the concern of the general industry. He stated what we did then we spoke with the Town of Chesterton. He stated today I spoke with them as a matter of fact and they acted very surprisingly why am I even calling because they submitted a letter saying that they don’t have a problem with it. He stated I then talked with A.J. Monroe the Planning Director of the City of Portage and told him what we are trying to do. He stated I told him what your concern may be and that is the wide open nature of I-2. He stated A.J. asked me what we want to do. He stated I told him the same thing that I explained to you tonight. He stated A.J. agreed that this property is extremely unique and agreed that this would be a good fit for. He stated he didn’t officially provide me with an opinion. He stated I don’t know if he corresponded with you, Bob, but he indicated that he was going to do that. He stated further recognizing that concern and one that I talked at length with Scot about and I sat down okay this is zoned C-1 right now for mini-warehouses. He stated Scot’s use is I-2. He stated how do we protect the constituents of Porter Count and how do we make sure that Portage is okay with what we want to try to do. He stated I flipped through your ordinance and kind of looked to see what you can do in C-1 that you can do in I-2. He stated quite frankly, a lot of them overlapped. He stated what we also found was that there was some I-2’s that are not permitted in C-1. He stated what I have done is prepared an agreement for written commitments on what we think are the noxious types of uses that are permitted in I-2 and then we will say this property will not be used for that. He stated we would make an agreement that would run with the land binding on Scot binding on everybody who buys the property or owns the property at any time thereafter. He stated I have a draft of that for you tonight. He stated if you turn to page 2, section 4 it lists the uses that I carved out that is not at all what the intent for this property. He stated the intent is to do exactly what I described for you. He stated I took out the things that are really a problem in my opinion. He stated I have listed ten or fifteen or so. He stated in looking through the ordinance these are the types of things that didn’t have the overlap and these are the ones we thought were a problem. He stated in quite frankly, even if this property was zoned I-2 it is such a unique site that a lot of these wouldn’t even be able to be located there. He stated you certainly aren’t going to have any landfill there because it is not big enough. He stated a race track is absurd and there is not enough room for that. He stated shooting range, stadium, coliseum, tavern, outdoor theater, slaughter house, airport, heliport and all of those things. He stated we


took those out because we want to commit to you that this use is for the things that we have explained to you. He stated this is a binding agreement that runs with the land. He stated one thing that I did add to this is in paragraph 5; I know that the county is now going through a look at their zoning ordinance and looking at new classifications for the ordinance. He stated so what I have added is that if that happens we are going to look at something that if we rezone this to I-2 now and it changes to M something or whatever the new classification would be it would be the most similar consistent zoning classification to accommodate the contractors office and storage both indoors and outdoors. He stated none of the other restrictions that we have placed would go away. He stated they would still all be there. He stated the point is to say make sure that it runs through and stays with the land. He stated this property is unique and I know you all go out to these and you drive by them and I suspect you have in this case. He stated it is a really difficult piece of property to do much of anything with. He stated I doubt if you, Mr. Harper, would want your law office to be there. He stated I know I wouldn’t want mine there. He stated it is just not a good location for that type of a use. He stated again the protection afforded by saying, “Here is a 60-foot setback and here is a building that is consistent with those up and down SR 149 and certainly this is much higher than any storage could possibly be behind it.” He stated the nature of the ordinance says you have to have this classification in order to do that. He stated it is close proximity to other highways. He stated it is centrally located and it is really an isolated type of a parcel that doesn’t impact the adjoining parcels.

No one spoke in favor of this petition.

Ruth Lute stated my address is 483 SR 149. She stated my brother and I are part owners. She stated our family owns the property across the road. She stated the Ramsey family owns the other part of that property across the road. She stated Mr. Ramsey couldn’t be here tonight. She stated we are opposed to this. She stated we have two concerns. She stated our number one concern is on the plans he shows a retention pond, which drains directly onto our property. She stated we have an easement that will drain that directly on. She stated so anything on his property any water that will accumulate on his property is going to come into ours. She stated our property has a pond on it. She stated it is a seven acre pond that is privately owned by the Ramsey and Kitchel families. She stated we have owned it for 47 years. She stated the farmer to the south of the Toll Road, the Griffith family, also drains into there. She stated for many years when they were doing heavy farming on their land we had many problems in our lake because their fertilizer drained and


came right into the lake. She stated in a rainy season you could see it bubbling out of the drainage tile. She stated our concern is if he is storing things on this property or cleaning up equipment that you use to pour concrete the water that comes off of that would be negative to the pond life. She stated our second concern is the zoning change going from C-1 to the other zoning, which is very broad and goes on to many undesirable possibilities. She stated we are long term residents and we are the only property directly affected by the change in his property because the toll road and the railroad are natural barriers in that location. She stated there is a subdivision to the south. She stated Chuck Lorenz the insurance agency has the farm to the north and the land on the north side of the railroad is farmland now. She stated our concern is the zoning change because it allows for things like liquid fertilizer storage, petroleum tank farm, and slaughter house. She stated in the event that he eventually sells this property it now has what we feel is a very broad and undesirable zoning for something else to be put in. She stated the property has for 47 years that we have owned the lake the property across the street has been empty except for when it had a small nursery, which is under the C-1 zoning. She stated it burned and was not cleaned up well and left as an eyesore. She stated I have to give Mr. Shears credit because he cleaned the land up and we are happy to see it cleaned up some. She stated I understand he needs to have this zoning change but my two concerns are that this leaves that very broad zoning in place. She stated they have addressed that issue some. She stated my question is this commitment that the lawyer talked about with his intent on what he wants to put on this property, how good is that commitment if Mr. Shears in four years says, “Wow, my business has boomed and I am moving on to more property. I need to sell this.” She asked does this commitment really bind the next owner to really what is kind of in the spirit of C-1. She stated my second concern is the land on the north side of the railroad tracks is now for sale. She stated the lawyer made you feel that there is industrial property all along SR 149. She stated north of this property there is but there is a fence company or the Great Oaks Nursery that would be the closest commercial kind of property to Mr. Shear’s property. She stated in between there there are houses. She stated there is a new subdivision going in on the west side of SR 149 north of this property. She stated there is considerable subdivision development south of this property so the way I see it it is more residential then business in that particular area. She stated if the land immediately north of the railroad is for sale and the owner lives in Alabama the zoning for his business has been changed for industry couldn’t I correctly assume that that owner is going to say, “Well, hey, he got an industry zoning so maybe I could go for that too.” She asked is the Plan Commission opening


the door for that person to say that his land is going to be more profitable for me to sell my land to a big business rather than to a developer for homes. She stated those are our concerns.

Max Kitchel, my address is 966 N. SR 149. He stated I share very much similar concerns. He stated my concern again is if it is identified as I-2 and that opens up Pandora’s Box for a lot of other I-2 classifications. He stated we use this lake for recreation. He stated we swim in it, boat in it, and fish in it. He stated our concern is the chemical discharge that comes through that waterway. He stated that easement waterway when the Toll Road was installed was to allow for drainage of the farm fields on the other side. He stated any water that comes to this property will come down and drain across that and come into our lake. He stated what chemicals he might use over there such as solvents for cleaning those would be entering our pond. He stated we don’t have city water and we do drink off of well. He stated those are my primary concerns.

John Lute, my address is 483 SR 149. He stated the first business that was there they allowed the zoning to change to the nursery type of thing. He stated in that C-1 is included mini-warehouses and what the owners intended to do I don’t know. He stated the fact of the matter is it was still zoned a nursery. He stated we didn’t find that offensive when that was happening. He stated the heavy business or industry that I think I heard him alluded to on this property south of Rt. 6 the only business’s there is on the south side of the road and that is mini-storage. He stated the rest are either residential or farm. He stated if you go north the heavy industry the first place you get is Great Oaks Nursery and Security Fence is no longer in business. He stated then you go into Burns Harbor. He stated in Burns Harbor you have Metal Matics (sp). He stated I don’t know what you folks know about Metal Matics. He stated Metal Matics is an acid regeneration plant. He stated it is a filthy thing but it is industry. He stated again, that is in Burns Harbor. He stated I would hope that we don’t want this parcel in Porter County to have that type of thing. He stated again he may have the best intentions in the world. He stated I have no reason in the world to believe he doesn’t. He stated I don’t see how we can justify the zoning change in a residential area.

Mr. Ferngren stated they couldn’t have hit it any more on the head with what my concerns are when Scot came to me and said this is what I like to do. He stated that is why I did this. He stated I opened up this book and said let’s take these things out. He stated let’s make these commitments. He stated those list of things like the petroleum tank storage are taken out. He stated again a lot of these things overlap from C-1 to I-2. He


stated what I tried to do is take the things in I-2 that are the problem because right now they can do all the things in C-1. He stated that is how I went through and started picking these things out the petroleum tank farm, slaughter house and all of those kinds of things. He stated I can tell you that a written commitment is binding. He stated Karen can probably tell you that. He stated we should hear from Karen and her legal opinion. He stated my opinion is that it is binding. He stated State Law provides that you can do this and I will tell you that it is running with the land and it is binding on successor owners. He stated there is no doubt about it. He stated the focus is on the use and the things that Mr. Shears is trying to do. He stated I don’t think that this opens up a slippery slope because zone changes are discretionary. He stated that is clear under State Law. He stated you look at these on a case by case basis and look at the property and what is the uniqueness of the property and what are the limitations imposed by that property. He stated in this case this property can serve this purpose as an I-2 with these protections in place. He stated the larger parcel that she speaks of to the north across the railroad tracks I can’t say that somebody wouldn’t try to come in but it is sure within your discretion to say 1.7 acres between a railroad and a toll road is a heck of a lot different than 20, 30, 40 acres of property that now is just farm ground. He stated in my opinion it is much different. He stated mini-warehouses can be put here now. He stated it is a very similar type of look, use and occupancy. He stated as I mentioned it is fully engineered. He stated again to focus just on the use. He stated this zone change if you are to permit this doesn’t in any way circumvent the obligation to go through all of the process that the county has with reviewing drainage. He stated that is kind of how we found out that we needed a different zoning in the first place. He stated Bob brought this to Scot’s attention. He stated so with respect to the detention and all of those sorts of things. He stated all of that is addressed through TAC and Scot will never get a building permit until those things are addressed to TAC’s satisfaction. H stated again zoning is really the focus on the use and not so much the technical components of how the handling of storm water is done, although, admittedly that is why we provide you with as much information as we can. He stated that is why we engineer the plan as we can so you can get the best possible idea about what that is going to be. He stated so I don’t believe this is a slippery slope and I can’t stop somebody else from coming but I tell you that this piece of property is a heck of a lot different than the others in the area. He stated I never intended to make it sound as though this is an industrial corridor. He stated it is not. He stated there is residential property right across the street. He stated there are mobile home parks not too far from here. He stated there is also commercial property and


industrially zoned property. He stated it is kind of a mix all through out this area. He stated I know for one thing this is never going to be a home site. He stated it was never even turned into a mini-warehouse. He stated it is a unique shape of property. He stated SR 149 is not intended to be an industrial corridor. He stated I just wanted to point out that there are businesses in the area. He stated again this commitment does run with the land. He stated just to make sure that the lady and gentleman behind me understand that those things do in fact exist and are there.

Mr. Lute stated from the last statement made when he said the ordinance doesn’t address the drainage or maybe I didn’t quite catch that right. He stated if the drainage becomes a problem and we get something drained on our property that is objectionable to quality of the lake is there a responsibility of Mr. Shears to correct that. He stated is there an option that I might ask the Commission to look at if we can change this to an I-2 with all these restrictions why can’t we leave it as C-1 with an exclusion and then that would alleviate some of my concerns that it could roll over into a heavier industrial application. He stated if it stays as C-1 with an exclusion only because of outdoor stored material then if we can change with restrictions on an I-2 why couldn’t we do the same for a C-1.

Mrs. Kitchell stated the petitioner said that the outdoor storage would be piled up something like Reeds Nursery and that is not exactly what we would like to look at. She stated you did mention a fence. She asked is the fence going to be down in the hole or up by the road. She stated from the road you can see down in there. She stated if there was a fence then that would at least block that view for us.

Mr. Ferngren stated the fence will be around the entire perimeter of the property. He s