PORTER COUNTY PLAN COMMISSION

Regular Meeting
September 28, 2005

M I N U T E S

The regular meeting of the Porter County Plan Commission was held on Wednesday, September 28, 2005 at 6:30 p.m. in the Porter County Administrative Center, 155 Indiana Ave., Suite 205, Valparaiso, Indiana.

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

Mr. Biddinger moved to waive the reading of the minutes for the August 24, 2005 meeting and approve them as received in the mail. Mr. Burns seconded the motion, which carried on a unanimous voice vote.

Correspondence:

Mr. Thompson stated I passed out to everybody a letter addressed to the Plan Commission members concerning 2 Dreams LLC from Mr. Ronald Stangebye. He stated this is concerning a case that we heard at the last Plan Commission meeting.

Pending Business:

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 175 W. and CR 250 W. in Center Township. (To contain 36 lots on 19.97 acres. Property is zoned R-1. Con’t from 9-14-05 mtg.)

Todd Leeth stated I am here on behalf of your petitioner this evening. He stated as you know from the last meeting we were seeking secondary plat approval for the entire subdivision to be know as Hampton Manor Subdivision. He stated at that time you were dissatisfied with our evidence of how we were going to hook up with South Heaven Utilities. He stated as I indicated to you at that time there is a sewer line for South Haven immediately in the right-of-way on my client’s property. He stated South Haven believes that utility is private in nature and is in the process and have reached an agreement in principle to acquire the rights to that private utility line. He stated I don’t have any documentation that this acquisition has taken


place but I can report to you that formal documentation has been tender to the owner of the line or the perspective owner of the line, I guess, by South Haven Utilities. He stated that documentation hasn’t been returned or signed by the owner. He stated that is the only thing that I can report to you that has happened since we last appeared before you. He stated it is our opinion that the ordinance allows for us to receive approval tonight based upon the letters that have submitted to you from South Haven indicating that they have the ability and capacity to service the subdivision. He stated that is what your ordinance requires. He stated with that we would ask for secondary plat approval.

Commissioner Harper asked what does our ordinance require.

Attorney Tallian stated as to what.

Commissioner Harper stated as to approving a secondary plat approval on a subdivision when it is not entirely clear that they have worked out their sewer agreement.

Attorney Tallian stated certainly we know that a subdivision can get secondary approval if you put up a bond for the construction of the sewer. She stated we don’t have that situation here because we have more than just the construction of the sewer at issue. She stated what we have is the permitting of the sewer and I don’t find anything in the ordinance myself that says they have to approve it if there is no sewer line in place.

Mr. Leeth stated I am reviewing your subdivision control ordinance and under the primary plat approval remembering that we are at the secondary stage now. He stated at primary approval we are required to provide you evidence or documentation from the utility and it shall be submitted indicating the ability and capacity of the utility to service the subdivision. He stated we did that and that is why we received primary plat approval. He stated now we are at the next stage, the secondary plat approval. He stated the ordinance is silent as to what we have to show you with regards to the utility service to this property.

Attorney Tallian stated I don’t think that there is any court that is going to say that just because South Haven Sewer sits over there and has the ability to serve you if you don’t have the ability to get there that this Board has to approve you. She stated I don’t think you are required to do this if you don’t have an assurance that you have a sewer line. She asked are you waiting for a signature.

Mr. Leeth stated I am not exactly sure what the hold up is.


He stated I am not in the process of negotiating the acquisition. He stated the utility is. He stated we are waiting on the utility who assures me that in fact is coming and they have an agreement in principle. He stated something they didn’t have until the utility received the letter from the USEPA back in June releasing them from restrictions on new connections on this property as part of that June letter. He stated that was one of the holdups that we were waiting on. He stated once we got clearance from USEPA then we came back to you with the understanding that we then had the ability to tie into the sewer. He stated the method in which we do that, where we put our pipe is the issue. He stated do we tap into the existing line or do we run a parallel line or is there a combination of both. He stated that is an easement issue that frankly I don’t think has ever been required to be resolved when developers have come before the Plan Commission for secondary plat approval.

Commissioner Harper stated obviously this issue is not worked out at this point.

Mr. Leeth stated it is not.

Commissioner Harper stated so if we would approve this what would you do. He asked would you start something before you had this worked out. He stated I am just trying to get a picture of what we are talking about here.

Mr. Leeth stated one of the emergencies or the pressures that we are really facing is financing issues and the time value of money. He stated so yes, we would close on the construction loan and probably begin construction of the infrastructure. He stated obviously we can’t put in the pipe because we are not exactly sure what that pipe is and where it is going to be. He stated we are so confident that I know my client would begin construction on the other infrastructures, the roads, detention ponds and so forth. He stated based upon the fact that they would then have the ability at some point in time to connect either through the existing pipe or in a parallel pipe. He stated the thing that concerns my client and frustrates my client is the county has allowed extensively another property owner to run a sewer pipe in the public right-of-way. He stated but that land is owned by my client. He stated there is a statutory easement for the county for the county road. He stated but my clients land runs to the center line by legal description. He stated the county has allowed the sewer line and now the county is telling my client who owns the land they can’t put a parallel line on their property through the right-of-way to connect up to the utility. He stated we have to wait for the whim of whoever owns this line. He stated I believe the utility owns it but they


don’t share that belief and they are willing to pay for what I think they already own. He stated we are being held hostage at the whim of the owner of this private utility line to transfer it to South Haven so that we can tie into it.

Commissioner Harper asked who is telling you that you can’t run a separate line.

Mr. Leeth stated the Highway Department.

Mr. Breitzke stated maybe I can shed a little bit of light. He stated I’ve had to do my own investigation and do what is happening with South Haven Sewer. He stated I have had conversations with Dave Saylor who runs the operation. He stated as of last Tuesday apparently the developers, the Frobergs to the East, have now waived, from what I understand and I have not seen the document itself, their remonstrance to South Haven Sewer. He stated they were trying to get Valparaiso to serve their area, I believe, in anticipation of annexation. He stated that is not going to happen now. He stated South Haven Sewer Works is going to serve this area. He stated the 6-inch line is maxed out for that.

Commissioner Harper stated the annexation is not going to happen.

Mr. Breitzke stated no. He stated the annexation may happen but the service provider for waste water treatment will be South Haven Waste Water Treatment Plant and not Valparaiso. He stated I think Valparaiso and the Frobergs maybe were seeking to have Valparaiso serve the area.

Commissioner Harper asked so who is going to serve the area.

Mr. Breitzke stated this is South Haven Sewer Works. He stated the point being until last Tuesday we weren’t even sure about what the capacity issues of the 6-inch main were. He stated now the capacity is tied up. He stated David Saylor would prefer and actually is requiring this developer along with the additional developers along the way that there will be a trench with two pipes in it. He stated an 8-inch with a 4-inch over the top of it. He stated the 4-inch to be servicing this sewer line in the interim for what I understand. He stated there are utility issues. He stated the laws are such that they may permit the construction of utilities in public right-of-way in our streets. He stated I am not quite sure about this because I don’t know the utility law. He stated it has been indicated to me in the past that they may have a right to do it. He stated our concern with


the plans were that the engineer who prepared the plans also had a lot of conflicts with power poles along the way and some other issues that needed to be resolved and haven’t been as of now. He stated the IDEM permits, I don’t think, are a major issue. He stated personally I think that they are attainable but they need to be applied for and it takes between 30 and 60 days to get the IDEM permit for the waste water treatment line once all the information is provided to IDEM. He stated so there again that is kind of another issue.

Commissioner Harper stated let me ask you this, Kevin. He stated here is what bothers me about this. He stated nobody has any certainty. He stated we don’t have any certainty and they don’t have any certainty. He stated this happens again and again. He stated I am thinking about stuff that happened two weeks ago where we approved a subdivision and they aren’t as near as these people are. He stated nobody seems to have certainty. He stated when South Haven put these sewer lines in did they have to have county approval to do it.

Mr. Breitzke stated Froberg put the lines in. He stated the county didn’t put the lines in.

Commissioner Harper stated it sounded to me like we let put people put sewer lines in and not require that if they run in front of somebody else they let them tap into that. He stated now that doesn’t make a lot of sense to me to start with. He stated it seems to me that this is a mistake right out of the box. He asked do you agree with me on that where we shouldn’t be letting someone put a sewer line down a road in our right-of-way unless they are going to allow people that they run in front of to tap in.

Mr. Breitzke stated it makes sense to me Bob but it is tempered by what the law says too. He stated utility laws are a little bit different than other types of property law.

Commissioner Harper stated are you telling me that the county can’t require people to put pipes down rights-of-way if they run right by someone to allow them to tap in.

Mr. Leeth stated my understanding of utility law is that if in fact there is a privately owned utility under utility law may have the right to obtain a recapture fee. He stated in other words if somebody wants to tap in they have to pay what the law calls “their fair pro rata share” and this is something my client is willing to do. He stated my client has offered the Frobergs $5000 for the right to tie into this private line. He stated they want a $1000 per lot. He stated we are willing to pay $5000


because that is our estimated cost to run the line to the manhole independently of theirs. He stated we are willing to pay what we would otherwise pay.

Commissioner Harper stated I think what we should do right now tonight so that we don’t run into this again. He asked who gives these permits to run the utility lines. He asked is it the Highway Department that gives them. He stated I will make a note to ask the county attorney to research where we can require this in our future ones so this doesn’t happen again. He stated he is right. He stated this is right down the front of their property in the right-of-way. He stated here they are being held hostage in a way and I can sort of see that. He stated the second thing I think we should do is have some standards about what we are going to do about these subdivision that are asking for secondary plat approval if they are in the position that these guys are in so they are sitting out there wondering and we are not sitting here wondering what our rule is so it doesn’t become a case by case rule. He asked do you understand what I am saying. He stated I think we need to get something down so we have a rule and here is what our rule is.

Mr. Leeth stated your council in private discussion on this matter made a very good point. He stated her concern was how do I as the county get from point “A” to point “B.” He stated you post the bond Mr. Developer and I have the dollars to do it but I don’t have the route and I don’t know what the cost of that route is. He stated that is a very good point. He stated if that were the issue I would agree with you. He stated you should not grant approval until I have a dedicated right-of-way or a way to get there. He stated I do and it is called the right-of-way and you have allowed another developer to do that. He stated with our bonding we will guarantee to the county that the money is sufficiently there to build this sewer pipe and you have the right-of-way to get from my clients subdivision to the manhole. He stated that is how I think your ordinance was written and the State law certainly envisions it and that is why the public is protected if you were to grant secondary plat approval. He stated if you don’t believe that we have the right to go through the public right-of-way then you shouldn’t grant the approval tonight but we do. He stated it is a public right-of-way and we do have the ability to go from point “A” to point “B” to get the sewer there.

Mr. Breitzke stated you brought up a good point and that is that the presumption before was a tap in on the existing 6-inch. He stated there will be requirement by South Haven Water Works to build a new main. He stated we need bonding in addition to what was put together for the bond estimate. He stated like I say


this is a current event as of last Tuesday for the additional bonding amount. He stated that way we have assurances for the repair of the county pavements, driveways, utility relocations etc.

Mrs. Marshall stated in this Technical Advisory Committee, which met on August 5 it says, “Forward the case to the Plan Commission subject to the EPA letter including this in the South Haven Sewer District.” She stated we don’t have that.

Mr. Leeth stated yes you do. He stated that is the June letter that I referred to from the USEPA.

Mrs. Marshall asked is Hampton Downs included in the Frobergs number.

Mr. Leeth stated it is not included in the Frobergs number. He stated it is separately listed on that letter from the USEPA indicating that there is 38 taps. He stated in this subdivision we are asking for approval tonight for 36 lots under the number that has been released by the USEPA.

Mrs. Marshall stated I take exception to the fact that you don’t think you have to supply in a secondary thing when in fact Mr. Breitzke said that primary is conceptual idea. She stated I think that all papers have to be in order to gain approval. She stated you aren’t there.

Mr. Breitzke stated I just want to make clear that the capacity of South Haven now is 4.2 million gallons a day. He stated they are currently at 1.2 million gallons a day. He stated they have the capacity for…30 lots is kind of a drop in the bucket for what they can take on.

Mrs. Marshall stated it is not whether they have the capacity or not.

Mr. Breitzke stated I just wanted to bring that up just so nobody is mislead. He stated it is not an issue with the plant. He stated it is with the conveyance to the plant that has been an issue with the other subdivisions. He stated in this case they will build new lines to much improve standards. He stated the letter is in the file and it has Hampton Farms for 38 lots. He asked what is the current name.

Mr. Leeth stated it is Hampton Manor.

Mr. Cole stated I am sitting in the middle on this. He stated I find myself embarrassingly having to agree with Todd.


He stated he is probably right. He stated why should a private developer be allowed to put a sewer main down the public right-of-way without allowing somebody to tap into it at some future time. He stated that doesn’t make sense. He stated I think by nature of a private developer putting a sewer line in the public right-of-way he gives up the issue of privacy in that private ownership in that case. He stated I think I would like to see this go forward at this point. He stated I really feel that Hampton Downs deserves that sewer line. He asked is that 6-inch a force main.

Mr. Breitzke stated yes.

Mr. Cole stated so it needs to be upgraded from this point to South Haven.

Mr. Breitzke stated it is not at capacity. He stated the capacity is spoken for. He stated the builders of the line have used up the capacity through their agents themselves. He stated what the anticipation is is to build a smaller line then merge the two at a later date when there is enough effluent because we get very concerned about the waste going septic in the line if there is not enough force and material going through it.

Attorney Tallian stated I am not sure I understand this business about you need secondary plat to be able to do the infrastructure because we all know you don’t. She stated I don’t understand what the emergency is to get secondary plat, which means you are recording everything with the ability to sell lots to the general public when you can start your infrastructure with using the primary plat.

Mr. Leeth stated a reading of Indiana law you would be correct. He stated the problem that my client is facing is that their lender is requiring secondary plat approval before they get the dollars to begin construction.

Mr. Burns stated I have nothing.

Mr. Detert stated I guess this really bothers me. He stated I don’t know why we should be giving approval when we don’t have…I hear the attorney say they can go from point “A” to point “B” but they can’t.

Mr. Leeth stated I can either tie into the line that is out in the front that currently exists. He stated if it needs to be upgraded then we have some development issues to work out with regards to the sizing of the line. He stated from a practical standpoint one of two things has to happen. He stated


my client has to have the right to tap in to the sewer line that is on their property and in the public right-of-way or the county has to grant us the right to run a parallel line to the manhole. He stated one of those has to happen and that is the way my client is going to service the subdivision with sanitary sewer utility. He stated one of those two has to happen. He stated you can’t withhold the right from my client to run the pipe when you granted the same right to somebody through my clients own property. He stated it doesn’t jive.

Mr. Detert stated if we okayed this tonight what are you going to do tomorrow.

Mr. Leeth stated my client is going to go and close the loan, obtain the financing in order to begin construction.

Mr. Detert asked will you start putting sewer lines in.

Mr. Leeth stated we can’t put the sewer lines in because we don’t know yet where they are going to go because we don’t know which pipe it is.

Mr. Detert stated you are asking us to approve something that isn’t settled yet.

Mr. Leeth stated two things are going to happen after that. He stated we are going to resolve the issue about whether we are going to use the existing pipe, upgrade the existing pipe or a combination of both. He stated we are going to do that with the approval of South Haven because they are involved because they have to be involved and second of all we are going to get an IDEM permit to all of the above and they are the ones that permit the construction of the transmission line the pipe that we are talking about from the subdivision to the manhole and into the existing gravity system for South Haven. He stated IDEM has to approve whatever method that we ultimately resolve. He stated with that we will show whether it is a 6-inch line or and 8-inch line and exactly where it is going to go. He stated they are going to approve the collection system within our subdivision as well. He stated that is something we haven’t talked about. He stated TAC looks at that and the pipes are in the ground throughout my clients 20 acres. He stated that is something that IDEM permits as well and they will have to look at that.

Mr. Detert stated I kind of feel that we are being put in a trick box when somebody else needs to make some decisions as to where you are going to hook in.

Mr. Leeth stated my client doesn’t mean to put the Plan


Commission in a trick bag. He stated it is something that is unique because of the South Haven issue and the USEPA’s consent decree and so forth that kind of heightened your awareness of all of these issues. He stated the manner of sanitary sewer service and the method of transmission is always there. He stated you are just not focused on where the easement is all the time and in this case it happens to be out in front.

Mr. Breitzke stated if we approve it tonight and if we put conditions on the plat our fear is that we will have a recorded plat out there with lot sales going on and people coming in for building permits prematurely. He stated the condition being that we have the IDEM permit in hand and that we have a bond for the offsite work, which I believe is going to end up being the requirement because of last Tuesday’s decision.

Mr. Leeth stated I don’t think there is any question that you have to have that.

Mr. Breitzke stated also the sewer agreement in any case.

Mr. Thompson stated before we put signatures on the plat.

Mr. Leeth stated I believe my client would find those conditions acceptable.

Mr. Biddinger stated I was going to say something along those lines. He stated I believe we put a moratorium on occupancy permits before.

Mr. Breitzke stated I appreciate that Mr. Biddinger but the problem is that individuals end up with these lots rather than the developer.

Mr. Cole stated if the contingencies cannot be met what happens to the subdivision or the plat.

Mr. Thompson stated it won’t be recorded as a platted subdivision if they can’t meet the conditions.

Attorney Tallian stated lots can’t be sold and building permits cannot be issued.

Mr. Thompson stated they are essentially on the clock now because if you approve it now by code they have three (3) years that this approval is good for. He stated so they are going to have to meet all three of these conditions within that three years. He stated within that three years if they can’t meet it then the plat expires.


Commissioner Harper stated I would like to ask if there is anyone here that would like to speak on this.

Mr. Biddinger moved to approve Case 05-FP-15 with the conditions of the South Haven Sewer agreement, IDEM permit, no signatures on the plat until those are shown, with the construction drawings and the bonding for the offsite. Mr. Cole seconded the motion, which failed due to a lack of a majority vote:

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

Mr. Thompson stated this case is continued till the next meeting.

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. (Con’t from 8-24-05 mtg.)

Bill Ferngren stated I have with me tonight Scot Shears. He stated I would like to make one thing clear and that is the agenda tonight still makes a reference to request to rezone from C-1 to I-2. He stated if you recall from the last meeting we retracted the I-2 request and rather said we would go and ask for the C-4. He stated if you recall this property is located on the east side of SR 149 and the north side of the property is bounded by the B & O Rail Road, south is the Indiana Toll Road. He stated it is a triangular shaped piece and is approximately 1.8 acres in size. He stated it is presently zoned C-1. He stated the request for C-4, Mr. Shears is in the construction business and does concrete flat work, basically sidewalks, driveways, basement floors those types of things. He stated the request is that he would like to locate his business to this property and build a new structure and have his construction office located here. He stated C-1 doesn’t permit that. He stated it permits a lot of other things but a contractor’s office with indoor storage is not permitted in C-1. He stated that is exactly what he would like to do here. He stated right now it is zoned C-1 and was rezoned for that purpose to have mini-warehouses on this property. He stated the difference between Scott’s business and mini-warehouse is typically mini-warehouse doesn’t have a phone, maybe a computer on a desk but certainly a storage type of use, indoor storage, doesn’t mean Scott and his employee’s would visit this property intermittently throughout the day to check on voice


mail messages do their computer business and other typical items associated with running a business. He stated the proposal before you includes one 4700 square foot FBI pole barn type of building. He stated it is similar to other types of building up and down the road. He stated as I mentioned this property is C-1 and there are other residential property across the street. He stated if you traveled up and down SR 149 you would see other types of pole barn buildings and this is not an unusual looking building. He stated it is a rather very common for that type of an area. He stated I have a color rendering for you of what the building would look like with some landscaping included in front. He stated it is a very traditional pole barn type of building. He stated the garage doors in front and two offices located on either side of the building. He stated at the last meeting there was a lot of discussion from some of the neighbors who I do see here tonight and the Plan Commission about an issue of drainage. He stated originally this was designed to have a detention basin located in the southern most portion of the drawing there that you are looking at. He stated incidentally this is the enlarged version of the drawing that I mailed to everybody last week. He stated the initial plan called for a detention basin with a release from that basin through a pipe under SR 149 onto the property across the street as it does now. He stated there was a lot of discussion about that and concerns about what happens to…you know the affect of the water on the property across the street including their pond. He stated so what we have done is created a retention pond in this location in lei of the detention pond, which now means that the water stays onsite. He stated it does not go through the pipe onto the adjoining property owners’ property. He stated it will stay on this property. He stated I believe that would satisfy what I think is the biggest concern what is the runoff affect on the adjoining properties. He stated I don’t see any runoff occurring anymore. He stated this is a very low piece of property bounded on all sides by a railroad a toll road and a State Road and now the water is going to stay on the site. He stated additionally there are plantings as you see on the drawings that are native vegetation to help even clean the site storm water before it gets to the retention pond. He stated they are all native vegetation and Mr. Biddinger indicated to us at the last meeting we could contact him to get some additional suggestions and we certainly are hoping to do that. He stated this property will contain all of its own storm water on site. He stated another issue that I sensed was the landscaping concern. He stated the people across the street have a very nice home and a very nice piece of property as are many others up and down the road. He stated what I have provided to you tonight with the color rendering and in this drawing is the commitment of Mr. Shears to provide a series of arborvitae landscaping and some other ornamental types of grass up and down SR 149, which would


drastically minimize the view of this building from the road. He stated having said that mini-warehouses can be located on this property. He stated other buildings like this can be located on this property. He stated other uses more intense than this proposed use can be located on the property, which would not require the landscaping or the drainage that we are proposing for you tonight. He stated I think that we have shown the effort to go above and beyond what is required in an effort to curb the concerns at the last meeting from both the Plan Commission and the folks sitting behind me and address those particular issues. He stated this landscaping plan before is one that Scot commits to and would like to do on the property. He stated the other issue is I-2. He stated obviously, as I stated earlier and at the last meeting that is retracted. He stated we don’t want that. He stated we are no longer asking for that. He stated we are looking for C-4 to allow Mr. Shears to have this contractor’s office at this location for indoor storage, which is preciously what he is going to use the building for. He stated in the packet that I mailed everybody earlier in the week there is a copy in the table of permitted uses and I highlighted all of the permitted uses that are both permitted in C-1 and C-4. He stated I think that if you kind of just scan through those pages you will see that a great number of those overlap. He stated there are a lot of things that can happen in C-4 that can already happen in C-1. He stated in addition to that I revised the written commitments that I provided for you at the last meeting and now reflecting C-4 rather than I-2. He stated in Section 4 of the written commitments we have carved out what we believe the most obnoxious types of uses on this property. He stated the property is a unique piece and as we discussed at the last meeting even though there may be permitted uses under a certain zoning classification many of those uses will never be used on this location. He stated if you look in Section 4 of the written commitments and if you look at the table of listed uses I have gone through and taken out a couple dozen of the uses that would be permitted in C-4. He stated those things that we thought maybe are kind of obnoxious or a more intense impact on the people across the street.

Mr. Breitzke stated in Section 4 “Restrictions” you have a reference to the second line, “Generally consistent with I-2.” He asked was that intended to be C-4 and are those uses…

Mr. Ferngren stated it should have been included in the packet that I sent out.

Attorney Tallian asked is there a revised one.

Mr. Ferngren yes. He stated there is a revised one. He


stated those uses can be gone through and I spoke with Scot and told him that is really not what you want it for so let’s go and carve those uses out. He stated at the last meeting Mr. Detert and Mr. Burns also suggested that maybe we should go to the BZA and make a very specific request. He stated we can make those same kind of protectionary measures today through the written commitments with all the things that we have carved out. He stated Mr. Shears was told to go through this process and he paid his $575 and he paid for his certified mail to come here with that being the direction given to him. He stated he is not trying to go around the BZA’s authority in any capacity but that was the direction in which he was guided. He stated again I think all of these protections can be wrapped up into these commitments. He stated if you look at all the uses permitted in C-1 I think you would find that a lot of these uses really do overlap. He stated the use that Mr. Shears is proposing certainly is far less intense than many including the right to locate a service station on this property. He stated this can be your Family Express store, it could be a Speedway location and it could be any one of those today without any precautions taken with respect to the pipe going under the road other than we meet your current ordinance and the release rate for that. He stated he went beyond that and created retention situation and not using that pipe. He stated I think we have shown that the protections are in place. He stated we have addressed the drainage concerns. He stated I did try to communicate and actually set up a meeting with the adjoining property owners. He stated their schedules and our schedules never did match entirely but I did, as you see on the correspondence that I sent to you last week, sent everything that you got they got.

Mr. Detert stated one of the things that people were concerned about was traffic. He stated I see quite a few things in here left that could create traffic. He stated a Trade or Business School, a Lodge.

Mr. Ferngren stated if there are other items. He stated I just went through and I guess when I looked at this I saw gas station, service station. He stated I didn’t feel that a Trade School was going to generate the same level of traffic that a service station would. He stated I didn’t see that as a harmful type of use. He stated keep in mind that this is not a big piece of property. He stated this is 1.797 acres.

Mr. Detert stated I assume there are types of lodges that could get an alcohol permit.

Mr. Breitzke stated I would like to point out to you, Mr. Fergren, that you have not excluded the filling or service station, contrary to what you are just saying.

Mr. Fergren stated I never said that. He stated I was simply pointing out that today a service station is permitted. He stated if we never came here Mr. Shears could come to TAC and say I want to put a gas station on this property and he could do that because it is permitted under C-1.

Mr. Breitzke stated I am going to suggest that you exclude automobile repair and service station.

Mr. Burns stated I also have the same concern as Bob with the traffic especially traveling north. He asked did you get a visibility study.

Mr. Ferngren stated we haven’t had a visibility study but Mr. Civanich has indicated that he spoke with John McFadden from the State Highway Department who indicated that their location of the entrance way shown there is okay.

Mrs. Marshall asked do you have an accel or decel lane because I am sure that some of these trucks are slow moving or up to speed. She asked did the Highway Department say that you didn’t have to have any of those lanes.

Mr. Civanich stated they said that they would like to leave it like it is. He stated there is a slight decel lane but the fact is that it enough to be able to…

Mrs. Marshall asked how many employees did you say you have Mr. Shear.

Mr. Shear stated at this time there are five.

Mrs. Marshall stated since you are the expert on the drainage or retention pond are you going to deepen that area to have the retention that is necessary for all the water on this property.

Mr. Civanich stated yes. He stated actually we will be raising the site by two and a half to three feet from what it is now. He stated we will be raising the building and raising the parking lot up. He stated right now it is at 95 and we will raise it to 98.

Mrs. Marshall stated I see here you have a stand pipe.

Mr. Civanich stated the stand pipe has been removed. He stated that is the old drawing.

Mrs. Marshall stated there is not going to be any water that leaves this property to that pond.

Mr. Civanich stated no. He stated when we calculated it we actually oversized it.

Mrs. Marshall stated I heard of over sizing before and they flood.

Mr. Ferngren stated certainly it can’t go north because the railroad is much higher. He stated it can’t go south because that is much higher and quite frankly SR 149 is higher than this property as well.

Mr. Detert stated you know we really aren’t against what the gentleman wants to do. He stated I still say that my other comments were more appropriate. He stated there are so many things that can go in here. He stated the next thing I can see is somebody buys the property. He stated we are concerned about what happens when he leaves.

Mr. Ferngren stated we are open on removing additional things.

John Lute stated I live at 483 SR 149. He stated I actually have a lot more concerns after I received the paper work. He stated I thought verbally we had said that there would be no open storage. He stated if you look at this list and the past list neither one of them eliminate outside storage. He stated if you go through this list and it is not the same as the list that is here. He stated there are still fourteen items on here that are in question that I kind of thought that we talked about. He stated there are still business’s that are still on here that we don’t want. He stated my feeling is we were going to meet them and discuss this and the reason this didn’t happen is there is a four individual who is involved. He stated the guy is 61 years old and he is trying to get a college decree. He stated he is in class every night. He stated if it was an important issue I think we could have met on a Friday night. He stated the whole thing in my mind and maybe I am totally wrong but in my mind is starting to loose credibility on the zoning change. He stated if he wants to build this and get a variance so be it. He stated the spot zoning here I think should be in question. He stated I am involved in some property in St. Joe County and I know St. Joe County is not Porter County. He stated in St. Joe County to build a house you have to build it on 20 acres with 600 foot of road frontage. He stated my point in saying that is not every piece of land in Porter County is ought to be considered buildable. He stated my concern here is what are we really going to do here presently and long term.

Mr. Ferngren stated we went through the list and we will


take out all those things that you asked us to. He stated quite frankly, we don’t have a problem with that. He stated just to address the gentleman concerning the only time they could meet was on a Friday. He stated I have a family and others have families and I understand the limitations and it is an important issue. He stated we did offer to meet with them individually and Mr. Ramsey left a message and said that he didn’t see any reason for us to meet at all. He stated so we did try to meet with them. He stated we didn’t change anything from what we told these people in the hallway after the last meeting and as I just committed to you tonight we will take all of those uses out.

Mr. Detert stated we could have done this a lot faster if you would go for a permanent use variance.

Mr. Burns stated I agree. He stated you should have gone to the BZA.

Mrs. Marshall asked did you ever give consideration to the permanent use variance.

Mr. Ferngren stated we never filed the petition that way. He stated Mr. Shears came to TAC and said what he wanted to do. He stated he left here with the impression that he was supposed to get a zone change. He stated that is why the petition was filed.

Mrs. Marshall stated we have that avenue opened in the ordinance and it was suggested at the last meeting. She asked did you explore that and use it as a guide that maybe you had applied for the wrong thing. She stated we wouldn’t have to have any kind of written agreements and we could limit him under the current use variance to the business that he wants. She stated I don’t think that there is anybody here that is opposed to what Mr. Shears wants. She stated I wish him well. She stated I do have concern about all the things that are allowed in a C-4 and no matter what you do you are going to loose those assigns that you are willing to commit to tonight and somebody else is going to come along and buy that property and then go in and say, “I have a C-4. I can do this.” She stated I am going to tell you that the permanent use variance is the only way to eliminate this entire problem.

Mr. Ferngren stated I understand that but at the last the meeting I explained to you that he was guided in that direction after TAC. He stated that is why the petition was filed that way. He stated plus we didn’t go to the BZA because Mr. Shears already spent $575 on a filing fee to come here. He stated talking to Mr. Thompson it would have been another filing fee.


He stated I do disagree with you that these written commitments will be ignored. He stated this is recorded and State Law permits it. He stated every title commitment in world from this point is going to show this of record. He stated anyone who is going to buy this property is going to know whether it C-4 or not that they are subject to these terms and conditions.

Mrs. Marshall stated perhaps we could waive the fee for them to go to the BZA.

Mrs. Marshall moved to waive the fee for the Permanent Use Variance and forward this to the Board of Zoning Appeals. Mr. Detert seconded the motion, which carried on a unanimous roll call vote.

Mr. Thompson stated this will be heard on the October 19, 2005 BZA meeting in this room at 6:30 p.m.

Public Hearing:

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

Case 05-P-13. Petition of Floramo Partners, 1804 Garnet Court, New Lenox, Ilinois seeking primary plat approval for Falling Waters Subdivision to be located on the North side of CR 100 S., approximately ¼ mile East of Lake-Porter County Line Road in Porter Township. (To contain 10 lots on 8.09 acres. Property is zoned R-1.)

Michael Capp stated I am the engineer for Floramo Partners. He stated I am here before you this evening for what will hopefully be the second replat of Falling Waters. He stated this is a subdivision that essentially is spanning the distance between Division Road on the north to CR 100 S. on its south end. He stated what you have before you is a proposal to subdivide some lots around the north entrance, which intersects Division Road. He stated what we are proposing here is 8 additional lots. He stated it is probably instructive to review very briefly the history of this project. He stated this subdivision originally consisted of about 237 acres. He stated it was originally approved for 397 single family lots. He stated primary plat approval of the original subdivision was given in the fall of the year 2000. He stated final plat approval was given approximately a year later. He stated the plat was recorded in early 2002. He stated one of the conditions of the approval of the original subdivision was for the owner to seek to obtain and construct what would be considered a more proper intersection with Division Road. He stated the original proposal was making use of a rather


narrow easement and it was thought that a more proper intersection would be more appropriate. He stated so the owner acquired some suitable property and the first replat for this subdivision, which was approved about three years ago included a reconfiguration of the lots at the northeast corner of the original subdivision and more importantly it included the extension of McCala Drive with Division Road. He stated so that roadway as you see it was and has been previously platted. He stated what you see before you is similar in character to the rest of the subdivision. He stated the site is heavily wooded and very hilly. He stated the average lot size is a little bit larger than a third of an acre. He stated as the summary indicates we are increasing the number of lots in total from 397 that were originally approved by 8 for a total of 405. He stated this subdivision is served with centrally provided water and sanitary sewer facility. He stated the water is provided by Indiana American Water Company. He stated the waste water treatment and sewers are provided by the Falling Waters Conservancy District. He stated the storm water for this part of the site is routed to an existing pond what would be the south side of the proposed cul-de-sac, Vesuvea Court. He stated this pond was created with the first replat. He stated the first replat provided for a dedication of 30 feet along the south side of Division Road. He stated this eventual replat provides an additional 10 feet of right-of-way for Division Road for highway purposes. He stated the intention is for Vesuvea Court and the rest of the streets to be built to county standards; however, they will be privately maintained. He stated these are the facts of our petition.

No one spoke in favor of this petition.

No one spoke in opposition to this petition.

The public hearing was then closed.

Commissioner Harper stated I have no questions.

Mrs. Marshall stated first of all I go by there twice a day, going to work and coming home. She stated I see this every day. She stated there is a 40 foot building line from Division Road. She asked is that correct.

Mr. Capp stated that is correct.

Mrs. Marshall stated it is pretty close there. She stated if you are coming down that road it doesn’t leave much of a backyard there. She stated there is not going to be any access from these lots onto Division Road. She asked is this correct?


Mr. Capp stated that is correct.

Mrs. Marshall asked what is the status of the sewers that will be servicing this. She stated we had a plan that we were going to be operational. She stated they have not been operational because they were talking earlier this year about the equipment being installed and so forth. She asked what is the status of the sewer plant.

Mr. Capp stated first and foremost I have to emphasis all prior objections and challenges to the IDEM construction permits have finally been resolved. He stated the construction permits contemplated the installation of the sanitary sewers as well as the construction of the waste water treatment plant. He stated the waste water treatment plant is located in the side of a hill and roughly the central part of the site along the former railroad right-of-way. He stated the structure had been completed probably a year or so ago. He stated right now at this moment all of the mechanical equipment that is part of this treatment process has been installed and by that there are blowers which will air into the sewage, all of the valving the piping that controls this airflow. He stated there are a couple of decanter mechanisms that siphon off the clear liquid and then all of the transfer pumps. He stated so all of the mechanical equipment has been installed. He stated at this very moment the electrician is working to install conduit runs, wiring from the motor control center and the main disconnects to power the various equipment. He stated the pumps of course need power and the valves are also mechanically operated. He stated I think the electrician may have at least a week or a week and a half worth of work. He stated he has had contact and I think it may have been reported to you that the next step in the process is to power this site with electricity from the Kankakee Valley REMC. He stated the electrician has met with REMC about placement of the transformer and the secondary generator. He stated so those arrangements have been made. He stated that is the current status with the waste water treatment plant.

Mrs. Marshall stated so we haven’t turned the switch on yet.

Mr. Cap stated no.

Mrs. Marshall stated Mr. Floramo was here before. She asked didn’t he give us a date certain as to when this would be operational.

Mr. Thompson stated I believe it was at the end of September.


Commissioner Harper stated I thought this problem was solved because I thought we were going to have a report at every Plan Commission meeting. He asked Bob can you tell me why we haven’t had that on the schedule.

Mr. Thompson stated I will tell you that our Code Enforcement Officer, Jack Clem, going out there every week looking at it.

Commissioner Harper stated but we haven’t had a report and I thought that was what we were going to have. He stated in my mind this wasn’t going to be an issue tonight because we haven’t heard about it in at least three meetings.

Commissioner Harper moved to continue Case 05-P-13 until the problem with the waste water treatment plant is solved. Mr. Burns seconded the motion, which carried on the following roll call vote:

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

Mr. Capp asked my appearance here in this manner does that satisfy the needs for the updates.

Mr. Breitzke stated yes I believe it does. He stated it is the best way to do the updates is to have someone here.

Mr. Capp stated if by the next meeting everything is ready and waiting for REMC I am certainly willing to appear here and report that but we still may not have it operational by then.

Mr. Breitzke stated could you please at least report in writing if you don’t appear.

Mr. Capp stated I can do that.

Case 05-Z-11. Petition of Charles & Colleen Guyer, 1455 Sherwood Dr., Valparaiso, Indiana for a proposed amendment to the Master Plan to rezone a parcel of land from R-1, Single Family Residential to C-2, Offices and Institutions to allow for the redevelopment and use of the Real Estate as a beauty salon to be located at 181 W. Hwy 30, Center Township. (Property contains 1.99 acres.)

Todd Leeth stated I am here on behalf of Todd & Colleen Guyer. He stated they are the owners and applicants in this petition. He stated as you have indicated the property in


question is currently a single family home on approximately two acres located on the north side of U.S. Hwy 30. He stated they have 150 feet of frontage on Highway 30. He stated the property is near and west of the corporate boundary’s for the City of Valparaiso and is currently under the county’s zoning ordinance zoned R-1. He stated our petition is one to seek from you a favorable recommendation to the Board of Commissioners to rezone the property these two acres to the C-2 zoning classification, Offices & Institutions, which would allow the Guyer’s to move their existing business to this property. He stated they have been in business for 17 years operating a beauty salon in the Wise Way Shopping Center, which is frankly in the City of Valparaiso and a bit to the east. He stated they purchased this property and wish to remodel the home if appropriate. He stated they filed with the Plan Commission office a general layout of how that can be accomplished and move their business to this property. He stated we recognize that the C-2 zoning classification carries with it some uses that probably do not fit in the particular area recognizing some of the surrounding properties are in fact single family homes and remain so today, even though we believe that the area certainly is probably beyond transition. He stated it has already turned into a commercial area. He stated we have proposed to you a series of commitments. He stated I have passed out prior to the commencement of the hearing tonight and filed with the Plan Commission office at the time we filed the petition a proposed agreement for written commitments, which is allowed under your local ordinances as well as State Law. He stated to paraphrase or briefly describe the commitments Section 4 eliminates some of the uses that would otherwise be allowed in the C-2 zoning classification. He stated we chose C-2 for the reason that it allows for professional offices that the C-1 zoning classification doesn’t. He stated I think that is one of the failings of our ordinance, frankly, in the fact that I think Offices & Institutions ought to be allowed in the C-1 zoning classification but that is not the case. He stated our attempts were in Section 4 to carve out what we think are the objectionable uses from the C-2 to arrive at something that fits most generally with what we are trying to propose and that is a business in a business area that allows for the Guyers the most flexibility to utilize that property and yet protect the neighboring property owners. He stated Section 5 is more specific with regards to the operations of the beauty salon in the fact that it is a 6 day operation. He stated there would be no operations or business conducted on Sundays. He stated the current salon that the Guyers have eight chairs. He stated they wish to have a little bit larger square footage then they currently have and expand their business to ten chairs. He stated the property is about 2 acres in size and has 100 feet of frontage. He stated for that acreage it is 578 feet deep and


backs up to a subdivision on the north. He stated my clients don’t need all of the depth of the property. He stated they can work with the southern portion. He stated we have proposed that there would be no improvements on the north end of the property. He stated the development would essentially be on the south half of the 578 feet. He stated I think in the language in the restriction over on the top of page 4 I have indicated that they would limit their development to the south 300 feet and not go beyond that so that the northern 278 would be restricted from further improvements and left in it natural state. He stated that is the agreement that we are proposing. He stated I know in the staff report you have each received a description as to the character of the neighborhood. He stated let me briefly described that to you. He stated on the north side of Hwy 30 it is very much commercialized. He stated the City of Valparaiso stops at Hayes Leonard Road, which is probably four or five parcels to the east. He stated as you move then from the east to the west you are going to find a vacant parcel and then you are going to find a commercial park. He stated it is nine acres in size and it is zoned C-4 the highest commercial classification under the zoning ordinance. He stated in that little commercial area there is three businesses. He stated there is a dance studio or a dance school, a contractor’s window showroom and there is another business in there. He stated immediately west of that is the Kirscher dental facility. He stated that was approved by the Board of Zoning Appeals for a permanent use variance. He stated then there is a single family home on a similarly sized parcel and then you reach this parcel in question. He stated if you move further to the west you will find another single family home and then a sign business. He stated this is very much a commercial area. He stated there are nearly 30,000 cars traveled on U.S. 30 in this area each day according to a 2003 Department of Transportation traffic study. He stated this is very commercialized very high traffic area and we think that this is a well suited and meritorious petition.

No one spoke in favor of this petition.

Susan Handschy stated I live at 199 W. U.S. 30. She stated I have the sign business. She stated we were grandfathered in years ago. She stated this is a quiet neighborhood. She stated it is single family as far as that goes. She stated the house next door is a single family. She stated how do you figure the parking for the beauty shop. She stated if you are going to have 8 chairs you are going to be a busy person in that area. She asked what happens with me. She stated once I get past Hayes Leonard Road 50 miles stops. She stated across Hayes Leonard it is 55. She stated now I am lucky when I get behind a truck just to get off Hwy 30 to get to my driveway. She stated they are going to bring in more traffic.

Ann Handschy stated I live at 199 U.S. 30. She stated my concern is where are you planning to park all these cars. She stated that driveway is not very big. She stated the land behind is much lower than the way the house sits. She stated there is a drastic drop off. She stated if there is going to be additional parking and blacktop where is the runoff going to go to but to the ditch that is to the north of the home. She stated this wraps all the way around and drains on my mom’s property.

Mr. Leeth stated with regards to the parking the site plan such as it is has not been engineered but the proposal is to park both on the east side of the existing structure and then add additional parking in the rear. He stated we would anticipate that the parking on the east side would probably first used because it would be nearest to the entrance way to the business. He stated parking on the north side would be more limited and north utilized but for the busiest of times. He stated with regards to how many patrons are going to be there on any given day that fluctuates with season as well as the day of the week. He stated I don’t know the answer to that. He stated if that is important we can probably find out and provide you with something as far as historical business data that the client has recognizing he has been in business for a number of years. He stated drainage would be something that would be a requirement of TAC. He stated this falls within the overlay ordinance, which dictates and mandates that there be a staff review. He stated any commercial building permits would require that as well.

Mrs. Handschy stated I would like to say one thing about the drainage and the ditch. She stated I may have some acreage and my low land is the retention pond. She stated I live in the subdivision that is north of this. She stated the water comes under Hayes Leonard Road from all of the commercial development. She stated our property is considered business but we have the problem with water. She stated we have wells and we don’t have city water.

Mr. Leeth stated I would also like to reiterate that while my client has provided a rough site plan of the property the decision hasn’t been made completely whether or not he is going to use the existing structure. He stated he may if we receive your approval. He stated he may simply raise the building and build a new structure, which would be more suited to a business rather than to spend the money to remodel the existing home. He stated that decision hasn’t been made though I think he would probably remodel the existing home and move forward in that manner. He stated in either case we are going to have to submit all of the plans to TAC and that is a requirement of your zoning ordinance for commercial building permits and it is doubly so


because it is a requirement of the overlay ordinance, which is in play here.

The public hearing was then closed.

Mr. Burns asked how many property owners were notified.

Mr. Thompson stated there were 15 sent out and 15 responded.

Mr. Detert stated it seems to me if you are proposing 8 chairs there is going to be a pretty heavy inflow and outflow of traffic. He stated I am concerned about the parking also. He stated if you had 8 operators you would only have about 7 places left to park. He stated that wouldn’t allow enough room to park. He stated we don’t know what you are going to do. He stated I think that you are asking too much for this location. He stated I would have to say again that if that is all you want to do is run a beauty shop you might be better off with a permanent use variance.

Mr. Leeth stated first of all let me clarify. He stated we are asking for 10 not 8. He stated we currently have 8 at our existing business.

Mr. Detert stated that makes it worse.

Mr. Leeth stated again we think that the location on U.S. 30 we can’t have a business having more access to a road that can handle the traffic than the one that we have. He stated I think that is where our point is. He stated I don’t even think that this is an area in transition. He stated it has already transformed itself to a commercial area. He stated the uses that are there now, the single family homes, are encroaching upon the business because the business already moved there. He stated it is already a commercial area in my opinion.

Mr. Biddinger stated I have no questions.

Mr. Cole stated a 10 chair salon, 15 parking spaces it is going to be fairly water use intensive on well and septic. He stated that is a lot of water going into a septic field. He stated that concerns me. He stated are these parking spaces…in the sketch it looks like it goes up to the property line. He stated if I were the neighbor I would be rather upset about that. He stated as you say most of the uses in this area are commercial and are going more and more commercial. He stated the traffic obviously is going to be a problem. He stated whether it is Hwy 30 four lanes, decel lanes or not. He stated I can tell you from


my own experience speeds in that area are upwards of 65 to 70 mph and that is with trucks as well. He stated I am bothered by it.

Mrs. Marshall stated I have several questions. She stated the U.S. 30 overlay ordinance you have to leave a 40 foot right-of-way so already in order to be in business this needs a variance because the house doesn’t sit back far enough. She asked is this an option to purchase or are they already the owners.

Mr. Leeth stated they are already the owners.

Mrs. Marshall stated it says here in the notes from the staff that it will require a variance from the overlay. She asked are you willing to do that especially since we are getting commercial. She stated you have to remember when Ms. Kirscher came in for her permanent use variance for the dental office part of that presentation was that she was going to live in the structure, which I believe she does. She stated it came into the BZA as a home occupation, which rightfully it was granted. She stated I have seen Mrs. Handschy’s property under water. She stated I have seen her mow a certain distance down and she waits for it to drain. She stated by the way she keeps it very mowed down there. She stated the back of this house is almost an immediate drop off. She stated I don’t know where you are going to put parking on the north side of this house. She stated I wonder if this house is really suited to be a beauty shop. She asked are they going to put it in the bottom level or in the top level. She stated to the front door there is really a stretch to get up there. She stated it is right up hill. She asked do you know if it is going to be upstairs or downstairs.

Mr. Leeth stated it will be on the main level. He stated the main level is the level at which you enter the home. He stated it is not upstairs.

Mrs. Marshall stated it is going to be on the main level of the house and then there is going to be a basement under it.

Mr. Leeth stated I am not familiar with the inside of the house.

Mrs. Marshall stated you can tell that by the outside.

Mr. Leeth stated I will take your word for it.

Mrs. Marshall asked are you willing to leave this 40 foot setback from the frontage dedication. She asked are you willing to put a frontage road in front of this property if it becomes commercial.

Mr. Leeth stated the answer to both is yes. He stated the frontage requirement and some of these statements in the staff report I take exception to. He stated I am not sure that all of the area in both requirements that are set forth in the overlay ordinance would apply if you were to grant the rezoning. He stated I don’t believe that all of those apply. He stated the requirement to have a frontage road, however, may very well. He stated to the extent that it is required we would certainly dedicate and provide for that. He stated I note from the Porter County Auditors maps it appears that the dental office two parcels to our east has dedicated that right-of-way but not constructed the frontage road and that may be something that we could inquire about or simply comply with the requirements of the ordinance. He stated that is certainly a possibility if we receive the zoning to investigate that. He stated we are aware of the frontage road requirement.

Mrs. Marshall asked are they going to provide any access for handicapped people.

Mr. Leeth stated they will have to, yes.

Mrs. Marshall asked could that be an elevator.

Mr. Leeth stated it would not be an elevator. He stated it would be a ramp. He stated an ADA approved ramp.

Mrs. Marshall stated a 10 chair salon even if you only had 8 people working there, they would want to have someone in the chair and someone sitting waiting in the waiting room to fill the chair as soon as it is vacant. She stated it will bring business. She stated I want to say that I don’t know Mr. Guyer but he has a wonderful reputation as a hairstylist. She stated with that reputation I would suggest to that he is going to attract business.

Mr. Leeth stated I think that is one of the purposes for the petition to have him move his business so he can do that.

Mrs. Marshall stated I do have some reservations though about the traffic it is going to create, the size of the parcel and the house itself as far as transforming it into a beauty salon. She stated I am also very concerned about the drainage because I know that Mrs. Handschy gets drainage on that property. She asked this create anymore. She stated you blacktop spaces for cars and it is going to runoff from there.

Commissioner Harper asked why do we have this requirement of the setback if we don’t require these access roads.


Attorney Tallian stated the access roads are in the requirements.

Commissioner Harper asked does this dental office have an access road.

Mr. Thompson stated the way the ordinance talks about is for new commercially zoned property must set aside this 40 foot easement with a 65 foot total setback.

Commissioner Harper stated they can set it aside but they don’t have to put the road in so we can just keep putting commercial things down Hwy 30 with individual entrances.

Attorney Tallian stated it says, “access road shall be required.”

Mr. Thompson stated I can’t speak for the ones that might be for the east of it and if they did set it aside and did not build it. He stated I don’t know.

Commissioner Harper stated the whole idea of economic development in this county is to make these roads somewhat uniformed and to make this not look like a hodgepodge, which it sounds to me that we are adding one hodgepodge to another. He stated I just wonder why they have these other building in there and they don’t have the access road.

Mr. Leeth stated with regards to the setbacks I don’t believe we have to comply with the setbacks. He stated with regard to the frontage road my clients have indicated a willingness to comply with that.

Commissioner Harper stated let say that your client wasn’t willing to comply with it and we said we are going to change the zoning do you think he is required to do it.

Mr. Leeth stated I think he is probably required to do it. He stated let me offer my suspicions as to why Kirschers did not. He stated their property received a use variance so their zoning remains the same. He stated the requirement for the frontage road says, commercially and industrially zoned property has to have the frontage road. He stated theirs remained R-1.

Mr. Breitzke stated you are exactly right. He stated they agreed to set aside the frontage road at that time. He stated this predated me.

Commissioner Harper stated in this plan how far is the building from the road.

Mr. Leeth stated I don’t know the exact distance.

Mr. Thompson stated I made an approximation by using the NIPSCO power poles. He stated generally they are fairly close to the right-of-way. He stated I am not going to tell you that it is right on the right-of-way but using them as a benchmark I wheeled off 25-feet to the garage door going up the driveway.

Commissioner Harper stated explain this 40 foot to me.

Mr. Thompson stated they have a choice. He stated they are either going to have to tear down the building and comply with the ordinance or they can go in front of the Board of Zoning Appeals and request a variance from the U.S. 30 Overlay requirements.

Mrs. Marshall stated Mr. Leeth do you think you could give consideration to a permanent use variance in this situation. She asked do you have to have a C-2.

Mr. Leeth stated my client and I have discussed variance versus a rezoning. He stated he has expressed to me a willingness or desire to continue on seeking the zone change. He stated the reason that it provides more permanence to the value of this property if in fact he is not there as a beauty salon in the future. He stated we have tried to provide the protection for the community and the county in the agreement for written commitments that would other wise be reasonable conditions if this were a permanent use variance. He stated we have done that. He stated let me offer to you the opportunity for me and my client and go back and see if we can’t address some of the issues that have come up tonight. He stated therefore I would ask for this case to be continued to your next meeting. He stated in that interim my client can one, revisit the use variance but I think he is going to want to move forward. He stated in that regard we can come back with something that is perhaps a little bit more detailed with regard to the lay of the land, where we think that the parking can be and provides some more answers to access issues and where that is all going to be.

Mr. Biddinger stated the petitioner and Mr. Leeth have shown a lot of knowledge of the expectations of what is going to happen if this rezone comes in and the things that will have to be done to the property in order to make the setbacks, make the frontage roads and that sort of thing. He stated as long as they make those qualifications and are willing to put the investment into the property to do that my thought is I don’t care how they do as long as they can make the building in compliance.



Commissioner Harper moved to continue Case 05-Z-11 to the next Plan Commission meeting. Mr. Burns seconded the motion, which carried on a unanimous voice vote.

Case 05-Z-12. Petition of Jeremy Nelson, 2843 Calumet Ave., Valparaiso, Indiana for a proposed amendment to the Master Plan to rezone a parcel of land from AG, Agriculture & Open Space to RR, Rural Residential to allow for a one-lot subdivision to be located on the East side of CR 500 W. between CR 300 S. and CR 400 S. in Porter Township. (To contain 1 lot on 2.00 acres.)

John Sturgill stated I am with MCMann Associates and I am here to represent Mr. Nelson in his petition. He stated he would like to rezone 2 acres that he is in the process of purchasing. He stated the property address is 375 S. 500 W. He stated the property is situated on the east side of CR 500 W. about a ¼ mile north of CR 400 S. He stated his petition and his intent with this petition is to first get the zone changed to RR and then develop a one lot subdivision for the purposes of constructing a home for his daughter and son-in-law. He stated Mr. Nelson has provided us and we have subsequently provided to the Plan Commission staff a soil report for the site conducted by Soil Solutions Inc. He stated that soil report was also filed with the County Health Department and we have the septic and well field investigation report for the site that shows the site is suitable for single family residential septic system of a gravity type. He stated also included in the packet is a copy of the Auditor’s map highlighting the two acre parcel that is before you tonight. He stated the area is a mix of AG and single family residential uses. He stated separated from this parcel by one parcel to the south are two single family residences and across the street from this is another single family residential site. He stated this is just south of Boone Grove School and there are a number of single family uses along CR 500 W. in this location.

No one spoke in favor of this petition.

Lisa Landgrebe stated I live at 381 S. 500 W. She stated I am two properties over. She stated one of our initial concerns is when the property went up for sale I actually called the realtor about the property. She stated I was told at that time they thought it was residential. She stated I asked them if they thought or if they knew and they said they thought. She stated if it had been still zoned agricultural my sister-in-law, my husband and I and my in-law’s probably would have bought it. She stated that was definitely a concern of ours. She stated I have a major list. She stated first of all drainage. She stated in front of our property and my sister-in-laws property it is low. She stated when we have heavy rains that spot does flood. She


stated we actually built our house beyond that to avoid that. She stated now with another house how will that going to impact our property. She stated that area is heavily farmed. She stated we have about 12½ acres. She stated the property just to the north of the property in question the property to the west and the back half of our property is still farmed and it is farmed yearly. She stated the size of the property compared to the others around it. She stated this is a 2.00 acre and we are at 12.5 acres and my sister-in-law is at nearly 13 acres. She stated there are animals nearby. She stated we have pets. She stated there are people who have chickens and cows. She stated we did have a question about rural residential. She stated when we built our house and my sister-in-law and her husband built their house we were told we could not purchase and build on a two acre lot. She stated we ended up going with the twelve. She stated this doesn’t fit that and we would like to know why.

Mr. Sturgill stated I am not sure of how to address the issue or I am not sure I understand the question relative to the farming activities there taking place around the area and how the construction of this home on this parcel is affected by that. He stated the other question was why rural residential. He stated the site size conforms to the rural residential zoning restrictions. He stated it is a 200 foot frontage on CR 500 W. He stated the minimum frontage for rural residential is 160 feet. He stated rural residential requires one acre and this is a two acre site. He stated this is the lowest most restrictive residential use that can be placed for a single family house. He stated that is the intent here. He stated it is going to be one single family residence. He stated like I said it would be kept within the family for constructing that home for his daughter and son-in-law. He stated as far as the drainage concerns there are drainage concerns throughout the county I a lot of different areas. He stated quite frankly at this time topography has not been shot on the parcel to determine whether or not this will create any impacts. He stated looking at the site this site does sit a little bit higher than the Landgebe’s property. He stated however, the amount of impervious surface area that would be place with a typical single family residence would be very small and considerably smaller than what they have on their site with the longer driveway that reaches back to their home.

Mrs. Landgrebe stated my husband grew up in the house next door and my in-laws live there. She stated people move to the country because they think it is going to be quiet. She stated I can say that a lot of times it is very quiet but I guarantee that in April, May and the beginning of June it is not quiet when you are out tilling the fields and planting the crops. She stated then again in late fall.


Mr. Sturgill stated as far as the agricultural uses and for lack of better terms, being a good neighbor. He stated I am sure that Mr. Nelson and his daughter and son-in-law have done their investigating as to where they wanted to purchase land and build their future home. He stated I would suspect that they are aware of these conditions. He stated anyone that lives in rural Porter County, Lake County or LaPorte County realize that the farming industry does run at all hours weather dependent and that during these times of the year in the Spring and in the Fall that there are certain nuisances to rural life that you have to learn to live with.

The public hearing was then closed.

Mr. Breitzke stated just for clarification this is a southwest corner of a 72 acre piece of ground. He asked is Mr. Nelson in ownership of the 72 acres.

Mr. Sturgill stated no he is not. He stated Peterson Family Farms is in ownership of the remainder of the residual of this parent parcel. He stated the two acres from what I understand was separated in 1994. He stated Mr. Skinkle is the current owner of the property and he is selling it to the Nelson’s.

Mr. Breitzke stated just by way of explanation it was subdivided but because it wasn’t by court order and it wasn’t within the direction of the Plan Commission it would have had to be a ten acre parcel to be a building site.

Commissioner Harper stated if we do two acres here it seems to me that we will start a roll at two acres, two acres and two acres. He stated this seems to be out of character for the area.

Mrs. Marshall asked how long has this two acre been in a legal description. She stated you say a Mr. Skinkle owns it. She asked how long has he owned it.

Mr. Sturgill stated yes he owns it and I believe that the conveyance was made in 1994. He stated that is when the property was surveyed and parceled off by Emil Beeg Land Surveyors.

Mrs. Marshall asked in 1994.

Mr. Sturgill stated yes, in 1994.

Mrs. Marshall stated so the rules were already in place.

Mr. Sturgill stated that is correct. He stated Mr. Nelson has gone into this deal with his eyes wide open. He stated Mr.


Skinkle has been very forthcoming in the fact that this was a non-buildable parcel. He stated from what I understand talking to Mr. Nelson it was a two acre reservation when Mr. Skinkle sold the parent parcel to Mr. Peterson. He stated he wanted to hold onto these two acres. He stated for what purpose I don’t know. He stated he did and now he is in the process of selling it to Mr. Nelson.

Mrs. Marshall asked you couldn’t add any land to these two acres.

Mr. Sturgill stated that is correct.

Mrs. Marshall stated this is two acres out of 72 acres parcel.

Mr. Sturgill stated that is correct.

Mrs. Marshall asked has those 72 acres now been subdivided.

Mr. Sturgill stated no it has not.

Mr. Cole stated how long has it not been farmed.

Mr. Sturgill stated for about five years and probably since 1994 it hasn’t been farmed.

Mr. Burns stated this is out of character and I think they should stay with the ten acre parcels.

Mr. Sturgill stated if you look at the Auditor’s plat there is this two acre parcel, then the two 12 acre parcels, immediately south of that is a one acre parcel. He stated then there are about 140 acres in Peterson’s name. He stated then there is a five acre parcel and a two acre parcel.

Mr. Detert stated I have nothing.

Mr. Biddinger stated I am going to have to agree with Mr. Harper. He stated this is a little frustrating to see. He stated I understand your predicament. He stated you have a two acre parcel that you really can’t do anything with. He stated at the other hand I can’t see why somebody would have let this two acre parcel go through without getting it rezoned at the initial start.

Mr. Breitzke stated the Skinkle farm was auctioned off about this time. He stated it was huge. He stated the parcel up on CR 300 S., which is now owned by the School Corporation


possibly where a future elementary school would go on CR 500 W. and CR 300 S. was all part of this. He stated the Peterson brothers bought part of this. He stated a lot of this land was out of a huge Skinkle farm. He stated in 1994 we were making the transition. He stated the building codes prior to that were the old fashion land divisions. He stated these went to TAC and they were of varying sizes. He stated the one acre parcels weren’t unusual. He stated we were getting no dedication of right-of-ways and no consideration for drainage, utilities and those kinds of things. He stated I think this might have been one of those things that was caught in the middle in transition. He stated I think what we have is a two acre parcel out here that is pretty much not doing much good for anybody, especially the farmer. He stated it might be just better off if there was a residence there. He stated added to that there is a one acre site right across from it.

Commissioner Harper stated so if we add this one and the next time we come back here we have twice the argument to put two more two acre things, one right next to another one.

Mr. Breitzke stated let me say this. He stated they had a pre-existing parcel. He stated we don’t have to cave just because we have a residential house here. He stated we have one across the street and one here. He stated the reality is this is a situation where we just can’t give a variance for a house, I don’t think. He stated they have to rezone to build a structure there.

Commissioner Harper moved to forward Case 05-Z-12 to the County Commissioner’s with an unfavorable recommendation. Mrs. Marshall seconded the motion, which carried on the following ballot vote:

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

This case will be heard by the County Commissioners on October 18, 2005 at 6:00 p.m.

Case 05-P-16. Petition of Aberdeen Limited Partnership, c/o Benchmark, LTD, 57 S. Franklin, Suite 207, Valparasio, Indiana seeking primary plat approval for Aberdeen Subdivision, Phase I, which is an extension of Larwick Circle between Prairie Parkway and Hawick Drive in Union Township. (To contain 27 lots on 13.012 acres. Property is zoned R-1.)

Laura Frost stated I am with Hodges and Davis and I am here


on behalf of the petitioner Aberdeen Limited Partnership. She stated also here this evening is Robert Palm of Palm and Associates. She stated he is the project engineer and surveyor. She stated also here this evening is Barbara Young who is the President of Benchmark Limited, which is the general partner of Aberdeen Limited Partnership, the developer. She stated as you mentioned we are here for Aberdeen Phase I. She stated we are here for primary subdivision approval of this plat. She stated as you mentioned there is approximately a little over 13 acres of land in both Center and Union Townships. She stated there is a proposal for 27 lots for single family homes. She stated lots 1 through 11 are in Center Township and the remainder of the lots are in Union Township. She stated this property is zoned R-1. She stated they are in compliance with all of the R-1 requirements with regards to lot widths, lot size, setback etc. She stated it will be served by public water from Valparaiso Water Department and public sewer from Nature Works Conservancy District. She stated we have submitted favorable capacity letters with regards to that for the application. She stated the development plan also is in compliance with the 20% open space requirements. She stated the development is the last part of the Aberdeen community. She stated it is located between the Links neighborhood up here to the north and the Prairie neighborhood down here to the south. She stated this is the Fairways neighborhood over here to the southeast. She stated this is the golf course area over here and I believe this is the Highlands over here. She stated Aberdeen Phase I is proposed as the missing link in the Aberdeen community necessary to connect up with the Links development and the remainder of Aberdeen. She stated it will also give the Links neighborhood people direct access to the remainder of Aberdeen and vise versa through residential streets mainly Larwick Circle which will be continued from up here down to here. She stated the development will be in accordance with the existing character of the rest of the Aberdeen community. She stated it will be subject to the Aberdeen master covenants. She stated there will also be individual supplemental covenants for this neighborhood. She stated the proposed covenants were submitted with the application and they are basically the same as the supplemental covenants for the Fairways neighborhood. She stated we will also have sidewalks in the area. She stated as far as the proposed housing styles for this development. She stated they will be compatible with what is in the Links and the Fairways neighborhoods. She stated the proposed price range would be starting at approximately $350,000 and going up from there. She stated I have some photographs here from homes in the Links. She stated I don’t want this to be taken as this is what we are going to build in this area. She stated these are representative of the types of housing that will be built in this area. She stated the roads


will be private. She stated the road to the north in the Links and the road to the south in the Prairie area to which this road will connect on either end are both existing private streets. She stated they have existing 50 foot right-of-ways and existing 28 foot pavement widths. She stated for safety concerns and to connect up to the existing roads we propose to make the road through Phase I also 50 foot wide and 50 foot right-of-way width and a 28 foot pavement width and also to have the road private versus a public road. She stated it will be maintained by the Aberdeen Property Owners Association in accordance with the covenants as are the remainder of the private roads in Aberdeen. She stated we will be filing a variance application for that purpose. She stated the approval we are requesting today is subject to getting that variance approval for the private road. She stated as indicated in our application that was filed we believe that approval of the plat for Aberdeen Phase I is appropriate. She stated this has been before TAC on September 2 and forwarded to the Plan Commission with a favorable recommendation. She stated we have received IDEM permit for the sanitary sewers and Drainage Board approval on September 12 and a favorable highway report.

No one spoke in favor of this petition.

No one spoke in opposition to this petition.

The public hearing was then closed.

Commissioner Harper stated I have no questions.

Mrs. Marshall stated you said that this is going to be in both Center and Union Township.

Mrs. Frost stated that is correct.

Mrs. Marshall asked so the people that live in Union Township are going to go to the Union Township schools.

Mrs. Frost stated yes.

Mrs. Marshall stated you are going to have two bus systems going down the same road every morning.

Mrs. Frost stated that is what would be required. She stated it happens now in other areas of Aberdeen also.

Mrs. Marshall stated I want to reiterate that the sewer plant, the non-functioning Nature Works Conservancy District sewer plant. She stated you know all the effluence from that leak


and it has been several times came onto my property, which I don’t appreciate. She stated it was not suckered up as they said. She stated it is still out there. She stated do we have an agreement that the sewer plant is going to work.

Mrs. Frost stated I can empathize with your concern regarding the sewer. She stated all I can say is Nature Works Conservancy District is a separate entity from Aberdeen Limited Partnership and it did request and did obtain a favorable capacity letter from them.

Ms. Young stated I am the general partner for the Aberdeen development. She stated I also serve on the Nature Works Conservancy District Board. She stated there was an occurrence and IDEM has cited the plant because of that occurrence. She stated it has been cleaned up. She stated all the reports that required by IDEM have been filed in response to that clean up. She stated that is now all sitting in Indianapolis waiting for them to evaluate all of that. She stated the plant has been corrected. She stated there has been no additional effluent. She stated it was a mechanical failure. She stated we also felt that our operator did not respond the way we wanted them to respond and we have entered into an agreement with a new operator, which will begin on October 1.

Mrs. Marshall stated you say that all the things were filed with IDEM but they didn’t go any clean up on my property.

Ms. Young stated there are certain reports…

Mrs. Marshall stated a report isn’t going to fix what is on my property. She stated there seems like there should be some action there.

Ms. Young stated there are experts that were brought in to address that issue. She stated you can call Dave Hollenbeck who is the attorney for the conservancy district.

Mrs. Marshall stated years ago when Aberdeen came in there was a road agreement that Aberdeen was going to contribute to the roads. She asked is that still in place or have they reneged on that.

Ms. Young stated the road agreement that was entered into the beginning of Aberdeen was completed before Aberdeen ever sold its first lot. She stated it was the resurfacing of CR 250 beyond our boundaries up to the southern road of Sylvan Manor.

Mrs. Marshall asked what about CR 100 N.


Ms. Young stated that was not part of the Aberdeen agreement.

Mrs. Marshall asked are the roads in the Links public roads.

Ms. Young stated no, they are private roads. She stated that development was not done by Aberdeen.

Mr. Cole asked how many notices were mailed out.

Mr. Thompson stated 42 notices were sent and all notices were received but one.

Mr. Cole stated I sympathize with Mrs. Marshall concerning accountability and responsibility. He stated that to me in my mind for any developer I think it can’t be brushed off. He stated I know that you are not doing that. He stated I just want to reaffirm that I do like accountability and responsibility.

Mr. Burns stated will the private roads be built to county standards.

Mr. Palm stated yes.

Mr. Detert stated I have no questions.

Mr. Biddinger stated I have no questions.

Mr. Burns moved to approve Case 05-P-16. Mr. Detert seconded the motion, which carried on the following ballot vote:

Biddinger - Yes Burns - Yes Cole - Yes
Detert - Yes Harper - Yes Marshall - Yes
Breitzke - Yes

Finding of Facts:

Case 05-P-14. 2 Dreams LLC.

Mr. Detert moved to approve the Findings of Fact for Case 05-P-15. Commissioner Harper seconded the motion, which carried on a unanimous voice vote.


Case 05-P-15. John T. Arndt

Commissioner Harper moved to approve the Findings of Fact for Case 05-P-15. Mr. Detert seconded the motion, which carried on a unanimous voice vote.

Mr. Thompson stated we need to cancel our second meeting in November and the second meeting in December due to the holiday season.

Commissioner Harper moved to cancel the November 23 and the December 28 Plan Commission meetings. Mrs. Marshall seconded the motion, which carried on a unanimous voice vote.


Mr. Biddinger moved to approve the calendar for the November and December meetings. Commissioner Harper seconded the motion, which carried on a unanimous voice vote.

There being no further business the meeting adjourned at 9:45 p.m.


PORTER COUNTY
PLAN COMMISSION


s/ Kevin Breitzke, President

Attest: Robert W. Thompson Jr. AICP, Executive Director/County Planner