PORTER COUNTY PLAN COMMISSION

Regular Meeting
October 26, 2005

M I N U T E S

The regular meeting of the Porter County Plan Commission was held on Wednesday October 26, 2005 at 6:30 p.m. in the Porter County Administrative Center, 155 Indiana Ave., Suite 205, Valparaiso, Indiana.

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

Mr. Cole moved to waive the reading of the September 14, 2005 minutes and approve them as received in the mail. Mr. Burns seconded the motion, which carried on a unanimous voice vote.

Mr. Cole moved to continue the reading of the September 28, 2005 minutes. Mr. Burns seconded the motion, which carried on a unanimous voice vote.

Old Business:

Findings of Fact: Case 05-P-18. Petitioner Mark and Kelly Holder.

Mr. Detert moved to approve the Findings of Fact. Mr. Burns seconded the motion, which carried on a unanimous roll call vote.

Case 05-P-13. Petition of Floramo Partners, 1804 Garnet Court, New Lenox, Illinois 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. con’t from 10-12-05 mtg. Public hearing is closed.)

Mr. Breitkze read a letter from Mike Capp who is asking for a continuance to the next meeting. Mr. Breitzke stated Mr. Capp also has a report on the waste water treatment plant. He stated the report states: Mechanical, the UV disinfection chamber has been delivered and the contractor is in the process with the electrician of connection of the discharge piping to the vessel. The recent rainy weather has interfered with the schedule plans to connect the external discharge from the disinfection chamber out through the wall to the receiving manhole. This contractor is also authorized to install the conduit sleeves under Ketill Terrace for the KVREMC’s primary cables to the transformer at the southwest corner of this plant. The electrical portion: The contractor has not yet completed the installation of the conduit runs. He is still awaiting the shipment of the correct control switches (sludge and transfer pumps, level controller, and decanter mechanism.) The manufacturer was sending a service representative with these correct parts later this week. The electrician prefers to place such local control stations before he completes his piping runs. This piping must, of course, be completed before he can pull cables and wires to these devices. This contractor also had to return incorrect lighting fixtures and ballasts. It appears that the KVREMC is prepared to schedule the installation of the transformer and primary cables once the conduit sleeves are in place. As a consequence, we must ask for a continuance on the matter of the second replat at the north entrance on Division. Once again, my hope is that my next report announces that we have successfully completed these tasks before your next meeting. If any questions arise, do not hesitate to call.

Mr. Burns stated I thought most of this work was done. He stated I thought we were just waiting for the utility company.

Mr. Breitzke stated no. He stated he has been reporting regularly.

Mr. Burns stated it sounds like he has a lot of work to complete.

Mr. Breitzke stated no. He stated what happened was he had the wrong parts delivered and he had to send them back when they didn’t fit.

Mr. Burns asked is there a date.

Mr. Breitzke stated yes. He stated they are working on it as we speak. He stated he really hopes to be here next time for the November 9 meeting.

Commissioner Harper moved to continue Case 05-P-13 until the November 9 Plan Commission meeting. Mrs. Marshall seconded the motion, which carried on a unanimous roll call vote.

Case 05-FP-18. Petition of SW Developers, LLC, 2602 Beech St., Valparaiso, Indiana seeking secondary plat approval for Beauty Creek Estates at Windsor Park North to be located East of CR 150 W./Froberg Rd., South of CR 450 North/Ransom Rd., Center Township. (To contain 117 lots on 56.54 acres. Property is zoned R-1. Con’t from 10-12-05 mtg.)


Bill Ferngren stated as you may recall this was continued. He stated we had inadvertently failed to mail the plans out timely to the Plan Commission members for the last meeting. He stated this is the entire development and there is no phasing of this project. He stated it is a single family development located at the southeast corner of Ransom Road and Froberg Road. He stated there will be 56 approximate acres and 117 lots.

Commissioner Harper stated I have a question for our attorney. He stated I thought the last time we were here the goal was to make everyone feel secure about this thing and we were going to come up with some approval that was conditioned on these representations being met. He stated further and above covenants. He stated I thought that was what this whole discussion was about. He asked has anything been put in place to do that.

Attorney Tallian asked which things besides the covenants.

Commissioner Harper stated we got here by these folks wanting to build this subdivision and through the rezoning and preliminary approval making certain…

Mr. Ferngren stated we didn’t go through a rezoning. He stated this is the single family development.

Mr. Thompson stated I think one of the things that was questioned within the covenants and restrictions was some of the architectural standards and there was one comment on it saying what is to prevent somebody from coming out and doing the siding on their house with plywood. He stated I think that they were going to go back and tighten up the covenants and restrictions on that particular point.

Commissioner Harper stated I thought we were going to do it a little different than just covenants.

Mr. Thompson stated we also talked about the idea of recording this on the plat.

Mr. Burns stated I think the concern was that it could be changed after it was approved.

Mr. Ferngren stated Karen and I spoke at least one time about changing that so it isn’t such a free lance opportunity for change. He stated we will be willing to put the appropriate language on the plat for those particular components you are concerned about. He stated the plat is something the property owner can change without coming here.


Commissioner Harper stated I just want to make sure that these people are protected that tomorrow this thing doesn’t get changed. He stated that is all I am asking.

Attorney Tallian stated one of things that the way this is set up is that the developer has essentially an architectural review board and it has a set of covenants and then this architectural review board that is going to approve everything in this subdivision. She stated the question is do you want it on the plat that because this will continue for the next forty years that you can only have these four kinds of siding.

Commissioner Harper stated I want it on the plat and I don’t know how any of the other members feel but I think that these guys are going to do this pretty quickly and this thing is going to be done and it will probably be done in two years. He stated we have a group of people who are already there that are very concerned about it. He stated we have a lot of representations that were made. He stated I thought we were all pretty much in agreement with that. He stated maybe I am wrong. He stated I thought we were all pretty much there and we just have to be told legally how we can reach that goal.

Attorney Tallian stated there are a couple of ways. She stated one way is that you can take all of these covenants record them with the plat and then I guess if somebody wants to change that they will have to come back to the BZA but the covenants themselves allow for change. She stated even if it is recorded on the plat you still have a mechanism to change the covenants and that is generally through whenever you have covenants. She stated there is a mechanism for changing because you need that because sometimes covenants written today aren’t going to work twenty years from now. She stated one of the things that you can ask them to do is to put in something that says covenants can’t be changed for a couple of years or whatever. She stated that is another mechanism that is done. She stated I have seen it done where it says covenants can’t be changed for five years and then after five years in order to change them they have to have a vote of two-thirds of the property owners or whatever. She stated that is another way to accomplish this.

Commissioner Harper stated that sounds like a much more…because if we don’t do that we are going to do what we always do. He stated there are no property owners now. He stated there’s just a bunch of empty lots so tomorrow if someone wants to change this they can change it. He stated but if you do something like, which sounds sensible to me, make it five years and two-thirds of the owners then the people who are living there five years from now are going to have the same interest as the people in the subdivision that are living there now. He stated I think we need to do that. He stated I don’t think they have any big problem with it. He stated I haven’t heard them say they have a big problem it. He stated I think it is just a matter of getting it done.

Mr. Read stated I thought we discussed this all last time. He stated I thought we would come to this meeting with it all in black and white in English understandable.

Attorney Tallian stated we were real close.

Mr. Breitzke stated let’s go to Article 4 on Amendments or Changes. He stated Mr. Ferngren can you address that somehow. He stated what Mr. Harper is suggesting is that at least putting a minimum time limit to hold these covenants before any amendments or changes take place. He asked Mr. Harper are you suggesting five years, ten years.

Commissioner Harper stated I think that five years sounds…by five years there are going to be those people living there that have the same interest that goes on there as the people here tonight. He stated to me it seems that five years would be sensible.

Mr. Breitzke stated it seems reasonable to me.

Commissioner Harper stated when we are done with this I want to give anyone who wants to speak a chance to speak now that we have these new covenants.

Mr. Read asked which set of revised covenants are we talking about.

Attorney Tallian stated we are on the Estates not the Villas.

Mr. Ferngren stated I am concerned about the five years. He stated it is a living and breathing document to a certain degree and I understand the Plan Commission’s, however. He stated five years is too long because I think a lot of these lots are going to be sold before that time.

Mr. Read stated what’s the problem. He stated I don’t see any problem with five years or three years or two years. He stated we are talking about a long term thing here.

Mr. Detert stated I think what we are concerned about is somebody pulling a fast shuffle sometime and I am not accusing you of doing that. He stated I think we should put some language in there like if you want to use five years fine but if something urgent comes up that language could also incorporate the ability of the developer to come back before us and change them if we agree. He stated what we are trying to do here is to protect the citizen that moves in there.

Mr. Ferngren stated I understand that. He stated covenants are a private contractual agreement between all of the property owners that live in the development. He stated these are all made available to people when people come to Brian’s office to buy property. He stated they buy into this development knowing that this can be changed. He stated I think five years is too long. He stated there is no intention here at all to change what I think you all are concerned about. He stated there are other things in here, what if for instance, some of these restrictions on accessory structures or antennas for instance with respect to FCC regulations come into affect and now we are locked in to a requirement on an antenna that we can’t even comply with the Federal Law, if that were to change. He stated those are the things that we are concerned about.

Commissioner Harper stated what about five years or after 80% of the homes are sold.

Mr. Ferngren stated I think two-thirds are a fair number.

Commissioner Harper stated if two-thirds were home owners I guess it would be sort of fair. He stated if it is owners of empty lots it’s not fair.

Mr. Ferngren stated I guess I think this is fair. He stated this is Brian’s development and I think he should be able to control how his development looks. He stated we are here explaining to you what the plats going to look like and how that development is going to occur. He stated this is Brian’s project and his dream and it should look like he wants it to look and this is what we are trying to accomplish here by taking into consideration.

Commissioner Harper stated if you are not bound by what you are telling us what good is it of you telling us that. He stated that is my point and that is why we have gotten in trouble here time and time again. He stated if you are not bound by what you are telling us why even tell us.

Mr. Ferngren stated I don’t know why we are bound. He stated we have committed to you on record about the siding issue.



Mr. Read stated we have already gone through the loopholes in this thing. He stated there are loopholes and we are trying to close the loopholes. He stated as far as changes goes five years to me seems to be a reasonable period of time. He stated two-thirds or three-quarters of the homeowners not counting empty lot owners or not counting the original developer. He stated if the original developer intends to keep with this why does he want these loopholes. He stated some of the loopholes that you mentioned are governed by Federal Law and not us anyway. He stated if he is in a position to say this is what he wants why isn’t he willing to stick with it for five years.

Mr. Ferngren stated I think as we sit here today to the best of his intentions this is what he thinks this place should look like.

Mr. Read stated is he willing to stick with it for five years.

Mr. Ferngren stated what if he wants to make it better then we can’t do that. He stated I think you are boxing the wrong thing in here. He stated I think we should have the opportunity to amend these covenants and I think that five years is too long.

Mr. Read stated I have a question for our legal person here. He stated under Article Two Section Two, Platting and Subdivision Restrictions. He stated it says, “The developer shall be entitled and at any time and from time to time to plat, replat or vacate existing plats on all or any part of the real estate subjected to this declaration and the file subdivision restriction and or amendments thereto with respect to any undeveloped portion or portions of or additions to the subdivision.” He asked how does that fit in to what we are talking about. He asked is that a loophole.

Attorney Tallian stated absolutely.

Mr. Ferngren stated I did amend the covenants to, I think, address what Mr. Read is talking about and I added and I sent these to you. He stated on your copy that I e-mailed you it was added.

Attorney Tallian stated that is the one I don’t have with me.

Mr. Ferngren stated I added to this section, Mr. Read, “That provided, however, that approval of said plat, replat or vacation of plat is subject to the review and approval of the local governmental authority with jurisdiction over the property


that is the subject of this declaration.” He stated so again this is not something where we amend covenants and this plat goes away.

Mr. Read asked does it close the loophole or does it just make it pleasant.

Attorney Tallian stated the reason I didn’t bring the copy is because all the new changes had blue on them so when I printed it all the places that were blue were blank. She stated that is why I didn’t bring the copy. She stated but if this is what it says then I think he has fixed the problem because now it says is that if he wants to change it he has to come back to the Plan Commission.

Mr. Read stated if this is going to be annexed into the City of Valpo you don’t come back to this Body anyway. He stated that is why I think the suggestion of a time period and a certain percentage is a better way out.

Attorney Tallian stated there are actually two things. She stated there is the section that you talked about replatting anything and once it is annexed by Valparaiso there is not much you can do about that. She stated it does say that the developer can’t come in and do a unilaterally. She stated he has to come back to the Board, whether it is this Board or the City in order to change or replat any lots. She stated now it doesn’t answer your question about whether until they sell and develop “x” number of lots can they change the covenants. She stated originally these covenants were written to say that they can change the covenants at any time until the last lot is sold. She stated Bill and I talked about that and said that this is not a good idea. She stated they did go back and they amended that number and so now once two-thirds, 66% of the property is sold off then the Home Owners Association has to be powered and all covenants and everything else has to be done that way.

Mr. Ferngren stated I can add to that two-thirds from the get go but the Home Owners Association is turned over when two-thirds of the homes are built. He stated keep in mind this is Brian’s dream and his project. He stated he needs to be able to control his development and his project. He stated that two-thirds is a safe number for us.

Attorney Tallian stated but you are right on the last issue and that is you sign all of this tonight and it says you can do “x, y and Z.” She stated it is absolutely true that tomorrow before any lots are sold they can all be changed.



Commissioner Harper stated if what you say is true don’t ever come back here again with a subdivision and have drawings and pictures of buildings and tell us…why would you even bring those to a meeting and say that you want this rezoned and here is what you are going to do. He stated why would you even tell us what you are going to do if it is none of our business.

Mr. Ferngren stated I am not saying nothing is your business. He stated certainly all of the subdivision control is your business and your ordinance requires us to provide you covenants and that is it and we have done that.

Commissioner Harper stated and our attorney is telling us that you can change this tomorrow so we are immaterial.

Mr. Ferngren stated I guess I disagree with you because you approve the plat.

Commissioner Harper asked do any of the neighbors have any comments on the new covenants that were written.

Dale Kroger stated I live at 2804 Prince Dr., Windsor Park. He stated I come before the Commission here as a property owner. He stated when we bought our home it was the biggest investment my wife and I made and we relied upon what the realtor told us what the builder told us and what the developer told us. He stated this is what is here today and this is what is going to be here tomorrow. He stated then we are faced with looking at the covenants of this which streets in my subdivision go right through and there are no cul-de-sacs. He stated now we are looking at things where they might use vinyl siding if they feel it is okay.

Commissioner Harper stated is your problem with this vinyl siding.

Mr. Kroger stated yes.

Mr. Ferngren stated that has been removed.

Commissioner Harper stated our copy of the covenants states that vinyl siding is not permitted.

Mr. Read stated the question is can he change these things and is there a loophole.

Mr. Breitzke stated I hear the question of can the adjoining home owners assure these home owners that they are not going to change theirs. He stated we have them having stricter covenants and ordinances but I agree with you Bob. He stated there should be some kind of time element in there so it gives a confidence that it is not going to be tomorrow or next year that they change their minds. He asked is three years something you would consider.

Mr. Ferngren stated I was going to suggest two years we would commit to not changing them.

Mr. Detert stated the part that bothers me is if the covenants are fair. He stated I don’t have a problem if the developer wants to change them to better the community. He stated what I don’t want is someone walking in blind that didn’t bother to look at them and then find out that they are stuck with something that didn’t think they had. He stated that is the case on the attorney fees that you and I discussed. He stated I think that should be a two way street. He stated now we are talking about changing them. He stated what if somebody changes that wordage out of there. He stated I don’t ever want to see that wordage changed.

Mr. Ferngren stated we can say that this section can’t be changed. He stated with the remainder I am comfortable with two years.

Mr. Detert stated we have to get past this period of time where somebody can just in a fast shuffle change the covenants. He stated we need some kind of time limit or we need them on the plat.

Mr. Burns stated if there is a need for change before three years are up they have the ability to come in front of us or the BZA. He stated things do change.

Mr. Read stated there is more to fear than vinyl siding at stake.

Mr. Burns stated there were two issues that I remember from the last meeting. He stated they were vinyl siding and the pitches of the roofs.

Mr. Fergren stated vinyl siding is out. He stated the roof pitches are on the other one.

Jody Snyder stated I live at 2900 Kickbush. He stated I think that changes are okay now. He stated I do agree with this three year thing but he doesn’t have to come before this Board. He stated that is all he has to do is change these and have them recorded. He stated if you do three years on this they can change them after three years.

Commissioner Harper stated if you put in something like three years at the end of three years enough of these properties will be sold that if they are going to be changed people in the community will make the changes. He stated that is what the thought is.

Mr. Snyder stated let me tell you about Windsor Park. He stated in Windsor Park there are five lots left. He stated five lots in Windsor Park and the Frobergs will not turn that Association over to the people

Mr. Breitzke stated that is Windsor Park. He stated first of all covenants and restrictions you are right from the get go. He stated we really can’t enforce them. He stated however, when we put the three year term in and make it part of the plat then they have to approach the Plan Commission for a replat in the meantime. He stated also they are making two-thirds not 100% of the lots.

Mr. Snyder stated 80% is what Frobergs have.

Mrs. Marshall stated the covenants are part of getting approval and so you presented one. She stated the covenants are really for the people that are going to live there and so I think that the only thing that the Board can do is look at how fair it is. She stated I don’t think you as the developers’ attorney…now on the other side of the coin we have people who represent the people who live in these houses. She asked how many cases are taken to court using the covenants. She stated you have to be on the other side of the table representing this development. She asked have you ever been to court and had a case brought because the covenants said something.

Mr. Ferngren stated yes and Mr. Detert and I talked about the fairness component and it now provides that if the Association or some other owner wants to bring a cause of action against another owner the prevailing party wins. He stated so if it a home owner that is being hounded by the Association and the court determines that the Association was wrong the Association would then have to pay that owners attorney’s fees. He stated that is exactly what Mr. Detert asked us to fix so that fairness component is truly within this document.

Mrs. Marshall stated you are going to turn this over to the Association at two-thirds of the lots being sold.

Mr. Ferngren stated that is correct.

Mrs. Marshall stated and then they are going to establish a Board.

Mr. Ferngren stated actually the Property Owners Association has been created as of October 17. He stated I filed the Articles of Incorporation with the Secretary of State. He stated it is an entity now. He stated Brian’s company, SW Developers will act as the Board for the Home Owners Association until two-thirds of the lots are sold at which time there will be an election from the home owners.

Commissioner Harper stated are we at the point, Karen, that if we set three years for the subdivision since it is residential and we recorded these covenants for at least the three year period and that they could not be changed until they came back here.

Attorney Tallian stated yes, I think that it is true and I will say that I have worked with Bill and Rich Hudson both on these covenants. She stated originally…

Commissioner Harper stated they don’t mean much unless we have some way to firm them up.

Attorney Tallian stated we have had a lot of issues on these and they have been very responsive to changing these. She stated I think that you are right that this still is the last final loophole and if you want to put it on that they can’t be changed for three years without coming back here or until you have two-thirds of the home owners living there. She stated I think that this is reasonable.

Mr. Burns stated I feel good about this.

Mr. Burns moved to approve Case 05-FP-18 with an amendment to Article 6 and to add the covenants can’t be changed for a three year period. Mr. Detert seconded the motion.

Discussion:

Mr. Detert stated I just want to make clear that he is going to do what we talked about on not changing that.

Commissioner Harper asked Karen on which Article are you talking about.

Attorney Tallian stated I am talking about page 23 No. 6. on how to amend covenants and then you would put in there “provided that these covenants may not be changed…”





Motion reads as follows:

Mr. Burns moved to approve Case 05-FP-18 subject to the change in the covenants of Article 10, Section 6, which should be amended to state that there will be no changes in the covenants for a period of three years and subject to the bond and recording of the covenants prior to the final plat being signed. Mr. Detert seconded the motion, which carried on a unanimous roll call vote.

Case 05-FP-19. Petition of Naples-VPZ Development, LLC, 421 West Lincoln Highway, Schererville, Indiana seeking secondary plat approval for Beauty Creek Villa Homes to be located East of Windsor Park and CR 400 N. in Center Township. (To contain 110 lots on 72 acres. Property is zoned R-2. Con’t from 10-12-05 mtg.)

Rich Hudson stated I am from the Bonar Group and I have here tonight with me Dave Croft from our office and the developers’ attorney, Jim Weaser is here. He stated he also happens to be one of the partners in the development. He stated Mike McCoy is also here from VPZ Development LLC developers of what is now called Beauty Creek Villa Homes. He stated several of you received the amended covenants by e-mail and the rest of them were hand delivered. He stated these changes were made in conjunction with calls between your attorney and the developers’ attorney and as of today several of you may have received copies that late because they were just done yesterday afternoon and could not go out in the mail and get to you for tonight’s meeting. He stated the set of covenants that you have should have everything that was changed darkened. He stated on your computer it was probably yellow. He stated all of these changes came about by discussions that happened at our last meeting two weeks ago. He stated the darkened ones are most recent and the ones that are italicized are the immediate changes that happened the next day after our meeting. He stated we are presenting what is zoned R-2. He stated we anticipate having duplex units on 110 lots. He stated this was approved as an R-2 zoning back when the Frobergs owned this property. He stated there were conditions that were placed upon this. He stated we have complied with all those conditions. He stated we are here tonight seeking your approval for secondary plat.

Jim Weaser stated I am an attorney from Schererville and I represent the developer and actually am one of the developers. He stated the changes that you see before you the ones in italics were those we picked on for our last meeting on October 12 and we feel comfortable with and that you had sought to see those in there. He stated for example Mr. Detert’s concern about the


prevailing party, which we put in there. He stated the ones in the darkened areas are as a result of discussions between Karen and I, which resulted in a letter from Karen to us several days ago saying, “In addition to what you did we think you should do further.” He stated I believe in each and every instance we had no problem with that and we incorporated those as well. He stated so that is the distinction between the two.

Mr. Detert asked would you be comfortable with doing the same thing on this section on enforcement in that it cannot be changed.

Mr. Weaser stated we are comfortable with that.

Mr. Detert stated I have a couple of typos that I ran into. He stated on page 5 you have “a Board if Director’s” and it should be Board of Directors. He stated you might want to clear that up.

Mr. Thompson stated also on page 5 at letter S at the very top where it says, “Trees.” He stated you mention in that paragraph appendix G of the Lake County Subdivision Control Ordinance. He stated we like the trees and everything and I know we want to see the trees but the only thing we are going to create a conflict with this statement because of the fact that you are asking for it to be planted in the parkway. He stated as much as I love seeing trees planted in the parkway the Highway Department does not.

Mr. Hudson stated so those will be in the front of the lot.

Mr. Breitzke stated as long as they are not in the parkway.

Mr. Read stated is this the one that has mention of the roof pitches. He stated I don’t object to what you have in here but as an architect I’ve designed many buildings including homes going anywhere from flat to less than six. He stated I realize that most home owners today don’t like flat tops. He stated I think you can have an attractive one with less than six in twelve but it is up to you.

Mike McCoy stated I would like to touch base with you on that Mr. Read. He stated six twelve is not a flat roof.

Mr. Detert stated on Article 5 that first sentence it says, “By the agreement of lot owners and their respective mortgages.” He stated I think you would want to say mortgage holders or mortgagors.



Mr. Burns stated I just want to make a comment on the pitches of the roofs. He stated the residents were concerned because most of the homes out there are eight twelve. He stated I agree that the porches should be lower but the main roofs are higher.

Mr. Read stated you also start and I run into this problem in several jobs I have now is that the steeper you get you can’t use a standard eight foot ceiling without having the head of your windows at seven feet. He stated that limits the amount of horizontal projection of your eave. He stated there is a little interplay back there. He stated as far as I am concerned I have no problem with the way it is written.

Commissioner Harper stated I would just like to ask if there is anyone in the public that would like to make a comment.

Jodi Snyder stated I live at 2900 Kickbush. He stated looking through this they did a pretty good job. He stated there are a couple of things like on the cost. He stated they are putting the value of the lot in there. He stated it was my understanding was that it was to be the cost of the unit itself without the lot. He stated that would be Article 2 Section C-4.

Mr. Breitzke stated I think what we wanted to make clear was that each dwelling unit rather than the whole duplex was $200,000 or $199,900.

Mr. Snyder stated under “exterior” it says, “Only in cases where architecture would be impaired.” He stated I was wondering what the terminology of “impaired” is going to be. He stated what they are saying here is if they don’t want stone in the front because we think it doesn’t fit in the architecture. He stated it kind of contradicts what is…actually it is giving them a way out of using stone in the front. He stated it says, “No residential dwelling shall have less than one hundred (100) percent of stone or face brick on the front exterior. Only in the case where architecture would be impaired, the architectural control committee may grant an approval of the plan and a variance to this restriction.”

Mr. Read stated from an architectural standpoint I see no reason why you have to have 100% of the face of one material.

Mr. Snyder stated they may not do any at all. He stated I have one other comment to make and that is I think that in spite of you granting Brian Sewin three years on his term because the amount of absorption on a single family residence is going to be a lot quicker than it is on a duplex. He stated if you give


these guys three years and all they sell is 20% whatever they have or 10% in three years they can come back and change this and wipe it all out. He stated I am only going by experience in Porter County. He stated I have been here a long time and I build here. He stated duplexes are not the fastest selling units in Porter County. He stated if you give them the same amount of leeway that you do in a residential single family it is not a comparison. He stated it is a totally different type of market. He stated I think you need to make it longer.

Mr. Breitzke stated let me make it clear that Mr. Weaser volunteered three years right off the bat.

Commissioner Harper stated he is right that the one sentence sort of does away with the whole requirement of brick.

Mr. Weaser stated the idea was you put only in cases and we actually added that word. He stated it is kind of what Mr. Read was saying and what Mr. McCoy was saying that there are potentially styles very attractive and very expensive styles construction that don’t involve brick. He stated we would be precluded in the architectural review committee that I think is going to exercise and I anticipate they will exercise some judgment because these are going to be either the developer who is putting up this or the property owners. He stated it allows them the discretion to use an attractive style that doesn’t necessarily involve brick. He stated the was the primary reason that was put in there because there are very, very attractive styles of construction that don’t utilize or are not required to utilize brick. He stated as Mr. Read was saying it could be the difference from the upstairs to the downstairs.

Commissioner Harper stated how can we solve this so they and we feel because really what it does tomorrow your architectural review committee can decide that…I mean that is what technically can happen.

Attorney Tallian stated that this is only in cases only applies to using 100% stone on the front of the building. She stated if you go down to the next sentence it says you can’t put vinyl siding or aluminum siding or four by eight sheets of plywood up in any case. She stated the only variance that is really going on here is do you have to have stone on 100% of the front face. She stated that is pretty minor.

Mr. Hudson stated the existing homes in Windsor Park don’t all have stone or brick on the face of them. He stated there are several that have no brick at all.



Mr. Read stated you really should design a house or building so that it is attractive on all four sides. He stated this idea of only having brick on one side and two sides are something else looks to me like a Hollywood movie set. He stated I have seen some very attractive vertical siding and my own house has redwood siding not cedar. He stated you are locking yourself in here. He stated as an architect I like to have some flexibility in what I am doing. He stated I know what is good and what is not good. He stated I have no problem getting rid of the vinyl siding and the aluminum siding. He stated I think you are locking yourself in to something that isn’t necessary.

Commissioner Harper stated I would like to give Mr. Snyder a chance to respond to that.

Mr. Snyder stated basically what they are doing is a cost thing. He stated if you don’t have to use stone you are going to cut $30,000 out of the front of your house or $20,000 or whatever it is. He stated it is a value thing on your unit. He stated the cheaper the unit the more they are going to sell. He stated I am not interested in what they are going to sell. He stated what I am interested in is protection of my home that I have and what I am going to be looking at. He stated I will not be looking at not just one of these units but five of them.

Mr. McCoy stated let’s take the only out and let’s do the 100% face brick. He stated what my concern is if you have a gable end at the front of the building you don’t want to run brick up that. He stated we have to have some kind of clearness here. He stated what if we make first stories 100% brick and go from there. He stated there are homes in Windsor Park that have no brick on them.

Commissioner Harper stated can we do five years.

Mr. McCoy stated we can do five years.

Commissioner Harper stated we are trying and it is not easy to sit here and give you a hard time. He stated we are trying to reverse a trend that has happened in every population area in this Country that has grown as fast as Porter County has grown. He stated and that trend is for things to get messed up and not become good for the environment or the rest of the citizens that are here. He stated it is not easy and I know that it is not easy for you to come and put up with us. He stated we are trying to be especially sensitive to the people that are already here and trying to create a community that will be the best community we can for our kids.



Mr. Burns stated if I understand this right you are saying that all of your ranches one story will be brick and your story and a half and two stories the lower level will be brick.

Mr. McCoy stated the first floor fronts will be brick or stone.

Mrs. Marshall stated it says that no dwelling including the value of the lot shall have an initial offering price of less than $199,900. She stated so we have two units. She stated the units together will have a value of $400,000.

Mr. Weaser stated minimum value of just slightly under $400,000.

Mrs. Marshall stated can I ask you how you came up with that price in light of the cost of…

Mr. McCoy stated that was originally agreed on a year ago so we are just running with it.

Mrs. Marshall stated these are supposed to be owned by a person who lives there.

Mr. McCoy stated right.

Mrs. Marshall stated how are you going to keep these from being rental units.

Mr. McCoy stated we talked about that before and we have a lot of different issues. He stated basically it is no different than anybody who lives in Windsor or Beauty Creek and they decide to rent their house out I don’t think you can stop them.

Mrs. Marshall stated do you think that this is affordable housing.

Mr. McCoy stated there are a lot of people who are trying to downsize and who may have winter homes in different places. He stated they don’t want to leave Porter County but they still want to have a foothold here but they don’t want the big house and the big yard.

Mrs. Marshall asked have you done a market research.

Mr. Weaser stated yes.

Mrs. Marshall stated so when this originally came in did it come for a rezoning first to an R-2.


Mr. Thompson stated yes and I think it was in 1999.

Mrs. Marshall stated did you say that this was something that was a part of what the Froberg’s did.

Mr. Thompson stated the rezoning was done by the Froberg’s. He stated the full 72 acres that they are proposing. He stated a primary plat was not presented to the Plan Commission until last year and it was the Froberg’s property still then but different developers that were going to work with the Froberg’s at that time. He stated they were the ones that proposed $199,900.

Mr. McCoy stated when we got involved they were all 80-foot lots. He stated we cut I don’t know how many lots by making them all minimum 90-foot. He stated that is something that we voluntarily did because we thought it was better for the subdivision and better for us to build on it. He stated we threw away 19 lots.

Mrs. Marshall stated are you using different architectural features on a number of houses. She stated every other house isn’t going to be the same thing or every house on the street isn’t going to be the same thing. She stated you’ve got some kind of features that make it look like it fits in.

Mr. McCoy stated yes. He stated they will all blend in with each other and there will be different models.

Mrs. Marshall asked how many models do you have at this time.

Mr. McCoy stated two-thirds of the lots are committed to right now and they are working on three different drawings.

Mr. Detert moved to approved Case 05-FP-19 subject to the following changes in the covenants: Article 2 item e, says that first floor is to be 100% stone or brick; Article 2 (s) has to make the changes about trees not being in the parkway and about deleting the reference to the Lake County Subdivision Ordinance; Article 4 item b talks about a resolution for changes or amendments to the covenants provided that no changes to the covenants should be made before five (5) years; subject to the bond of $2,120,000. Mr. Burns seconded the motion, which carried on a unanimous roll call vote.

Case 05-FP-20. Petition of Yellowstone Development, Inc., 352 S. 700 W., Hebron, Indiana seeking secondary plat approval for Yellowstone Subdivision Phase “C” to be located at 643 W. Old Faithful Dr. in Porter Township. (To contain 4 lots on 12.47 acres. Property is zoned RR.)

Don Bengel stated this is Phase C of Yellowstone Subdivision. He stated all of Phase A has been completed. He stated we have Yellowstone Drive, which will serve the balance of Phase A and will serve Phase C. He stated we had six lots in here and we cut those lots down to four. He stated these are rather large lots.

Mr. Detert stated the last time they were here I made the same comments on their covenants that I have made here tonight on Beauty Creek. He stated the minutes will reflect that they agreed to those comments on attorney fees and to my knowledge those covenants have never been changed or recorded. He stated as far as I am concerned that is a commitment that they haven’t lived up to and they need to before we approve any more plats.

Mr. Bengel stated Bob I don’t understand what you are saying.

Mr. Detert stated the covenants. He stated I objected at that time to that not being a two way street on the attorney’s fees which we just talked about on Beauty Creek.

Mr. Bengel stated I thought they changed that.

Mr. Detert stated I just like to see that they were changed.

Mr. Breitzke stated maybe we could make it subject to that being in the covenants prior to signing for these lots.

Mr. Read stated the lots that you are talking about now are lots 38, 39, 40 and 41.

Mr. Bengel stated right.

Mr. Read stated they are two or more acres with the exception of lot 41, which is close to two acres. He stated just as a matter of information your previous lots 36, 37, 35 and so forth what kind of acreage were those.

Mr. Bengel stated they were all one acre lots.

Mr. Read stated on septic tank and well.

Mr. Bengel stated yes.

Mr. Cole asked has construction begun on a foundation and a basement on lot 41.

Mr. Harrison stated yes.

Commissioner Harper asked how do you get a permit for a lot before it is platted.

Mr. Thompson stated it is one of the faults that I see with our whole permitting system. He stated when someone comes in with the information and hands it to us the deputy’s don’t know. He stated we have so many subdivisions. He stated they probably handed the information in and the clerks believed that it was a recorded subdivision and therefore they issued the permit for it. He stated am I happy to announce that, no. He stated it is something that I am going to go out there tomorrow and they are going to cease and desist until this is recorded.

Mr. Bengel stated most of the time the girls in the office check to see if it is recorded.

Mr. Thompson stated we have been very busy lately.

Mrs. Marshall asked who obtained the permit.

Mr. Bengel stated I think I did a plot plan for them.

Mr. Thompson stated I agree with Karen on how can they sell a lot with the title company and give clear title on something that is not recorded.

Mr. Breitzke stated the problem is a lot of people do things on contract or cash out of pocket so if it doesn’t involve the title company then there is no title search etc.

Mr. Cole stated I see that you have an abandon railway right-of-way the old Erie Lackawanna. He stated you may or may not be aware that a National or Federal Biking and Pathway Coalition have been anticipating a path to go clear across the United States called the American Discovery Trail. He stated one of the pathways that they have been looking at is the Erie Lackawanna Pathway. He stated would you consider allowing that right-of-way to remain open in anticipation of a bike path or walking path through there.

Mr. Bengel stated I think that is going to be a road.

Mr. Breitzke stated I think what Tim is talking about is the parcel to the west as well.

Mr. Cole stated there is a pipeline easement that follows that same road.

Mr. Bengel stated everything that Mr. Harrison owns is being platted.

Mr. Read stated you have a total of 100-feet, 60 of which is the road and the rest of it is a pipeline easement. He stated can you put a bike trail or a walking trail on a pipeline easement.

Mr. Breitzke stated yes.

Mr. Bengel stated the pipeline easement is off the right-of-way of the railroad. He stated it lies about five feet north of the north line of the railroad. He stated if you are talking about the right-of-way you are going to have a public road come down here…

Mr. Breitzke stated we are talking about westerly of the cul-de-sac. He stated since there is a pipeline there it is just an availability of access just in case an issue happens to the south of that where the actual right-of-way is so there is connectivity.

Mr. Cole stated going through the subdivision I noticed that a couple of the people in the beginning phases have already established little walking paths that extend back to that same railroad right-of-way. He stated this is what you experience in bike paths. He stated people begin to build their own trails on their own property to access these areas.

Mr. Harrison stated we tried to build as many as we can. He stated we already have walking paths in the subdivision.

Mr. Cole stated would you consider this.

Mr. Harrison stated I have no problem with that. He stated I think it is a great thing.

Mr. Cole stated the Erie Lackawanna is an established paved and well used trail already from Crown Point to Hammond.

Mr. Read stated I would like to see some kind of written commitment that this area would be made available if this pathway goes ahead or even locally it would be handy for you.

Mr. Cole moved to approve Case 05-FP-20 with the condition that the developer adjust in his covenants according to the minutes of the original approval; the public access easement on the south sixty-feet of lot 39; the bond needs to be established by County Highway of $131,271 and that the plat not be signed until proof of the covenant changes being rectified. Mr. Read seconded the motion, which carried on a unanimous roll call vote.



New Business:

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

Case 05-P-19. Petition of Walnut Ridge, LLC, 307 W. 500 N., Valparaiso, Indiana seeking primary plat approval for Walnut Ridge Subdivision, Unit 3 to be located at the Northwest corner of SR 149 and CR 500 N. in Union Township. (To contain 4 lots on 3.038 acres. Property is zoned R-1.)

Todd Leeth stated I am here on behalf of your petitioner, Walnut Ridge LLC. He stated I am joined with Chuck White a principal in that organization. He stated we appear before you tonight for approval of a four-lot subdivision which is essentially the third and final phase of Walnut Ridge Subdivision. He stated I have posted for your review a copy of the primary plat of Walnut Ridge the overall subdivision. He stated I did that so that we can orient ourselves to the lots in question as they play in the overall subdivision. He stated in 1999 the Plan Commission approved the primary plat for a 33 lot subdivision, which we now know as Walnut Ridge. He stated as part of that the plat was presented as I have shown you. He stated for orientation let me show you that the eastern boundary of the subdivision is SR 149. He stated the southern boundary is CR 500 N. He stated after the subdivision was approved the primary plat in 1999 we came back to you in May of 2001 and platted the first phase with the final plat which was essentially this area 20-lots in size. He stated then in September of 2004 we came back in and platted the southern portion, which contained 9-lots. He stated we had a little change when we did the final plat. He stated we don’t come out now to CR 500 N. He stated Walnut Ridge Lane is now Ridge Lane and ends in a terminus cul-de-sac at that intersection and that was all dealt with. He stated the entire subdivision is serviced by South Haven Sewer Works. He stated before we could come back to you to do the final plat for the last four lots South Haven Sewer Works had their moratorium and our primary plat approval expired. He stated so what we are now doing under your rules we have to start over and that requires a public hearing and a primary plat to approve the four lots that were approved back in 1999 in their original configuration with the original plan with no changes. He stated that is where our petition is tonight. He stated as you know in June of this year South Haven was released from their moratorium with regards to specific lots. He stated 13 of those lots are within Walnut Ridge. He stated those 13 where Phase 2 that was platted in 2004 and these four lots and these fours lots were released in the June 15 letter from the USEPA. He stated so our request is to have this plat approved that are the four lots that we have here that are part of and were included in the original subdivision.

He stated in the interim you have adopted the Open Space Ordinance and our plat shows that there is an open space dedication easement a conservation easement, which is 1.1 acres in size located in the area over by Pepper Creek. He stated Pepper Creek runs through this area and is really the reason why the subdivision has such an unusual shape in the fact that when it was originally platted in 1999 it was pulled away from the Pepper Creek Corridor as it goes around the western edge of the subdivision.

No one spoke in favor of this petition.

No one spoke in opposition to the petition.

The public hearing was then closed.

Mr. Burns stated I don’t see any problems.

Mr. Detert stated nothing.

Mr. Cole stated on your vicinity map there is a large black area to the west along Salt Creek. He asked is that the public fishing area.

Mr. Breitzke stated no it is not.

Mr. Read stated you are asking approval for the lots in yellow.

Mr. Leeth stated yes.

Mr. Read asked how many lots are there.

Mr. White stated four.

Mr. Read stated when I drove around there today I went west and followed the curve around there and there was a large wooded area. He asked is that part of it.

Mr. Leeth stated no. He stated the four lots in question are really…as you can tell from the map you basically drove around the entire area. He stated it is kind of the highest point of the subdivision the four lots that we are talking about.

Mr. Read stated it was that little run off pond…where is that little pond and the wooded area.

Mr. Leeth stated the pond is back in this area. He stated there is a detention area here and then down in this area as


well. He stated the wooded area frankly follows the border on the rear of the lots and in the corridor around Pepper Creek.

Mr. Read stated does this meet the current open space.

Mr. Leeth stated yes. He stated the amount of dedication 1.1 acres on a three-acre subdivision far exceeds your requirements, yes.

Mrs. Marshall asked where is that 1.1 acre.

Mr. Leeth stated it is located in this area.

Mrs. Marshall asked can you set aside open space in another place.

Mr. Leeth stated this is a copy of the plat that we are asking approval with the four lots shown. He stated the open space comes off of Walnut Ridge Lane and is a conservation easement that has Pepper Creek actually running through it.

Mr. Read stated that is Outlot A.

Mr. Leeth stated yes. He stated I think that is the appropriate place to have open space rather than have it along SR 149.

Mr. Read stated anytime you can take advantage of a watercourse that is always good. He stated are you setting up a POA to own and manage this. He asked what are your plans. He stated you have options and you know the options.

Mr. Leeth stated the POA has been established. He stated their covenants have been recorded when the subdivision was originally platted in 2002. He stated one of the POA’s duties and obligations is to own and manage the common area now. He stated when those were written it was not anticipated that the common area would be open space and conservation easements because the open space ordinance wasn’t around. He stated when I write restrictive covenants today we are a little bit more specific in specifically refer to the dedicated open space required by county ordinance and so forth. He stated I am confident that the duties of the POA in maintaining common area would carry over to this dedication as well.

Mr. Read stated I just want to make sure that the conservation easement is nailed down.

Attorney Tallian asked who is going to own this.


Mr. White stated I intended to maintain ownership.

Attorney Tallian stated you individually.

Mr. Read stated I don’t think that is permissible under the open space ordinance.

Attorney Tallian asked do you own property next to it.

Mr. White stated we can do this anyway you need to do it. He stated it makes no difference. He stated I own the property next to it and I own that property.

Attorney Tallian asked the conservation easement being what.

Mr. Leeth stated I guess we have to create that because the plat just shows the four corners of the description.

Attorney Tallian stated but when you say conservation easement you are talking about property that is going to be set aside for the use and benefit of the general public or for the people in…see we have two ways that this goes in the green space ordinance. She stated either you set it aside for the use and benefit of the general public or you set it aside for the use and benefit of the subdivision. She stated ownership is actually a different deal. She stated that can be set up in different ways but is this going to be dedicated to…

Mr. White stated the idea is in general not just the subdivision.

Attorney Tallian stated so it is the use and benefit of the general public as an easement and is there an access way.

Mr. White stated yes up on CR 500 N.

Mr. Leeth stated there is a strip here that comes out to the public right-of-way.

Mr. White stated it faces on CR 500 N. so there is access there.

Mr. Read stated you can’t own it because you can’t sell it either.

Attorney Tallian stated is this what you have on the plat now.

Mr. White stated yes.

Attorney Tallian stated it says that Outlot A has been created as permanent common open space intended for the common use and enjoyment of the residents of Walnut Ridge 1, 2 and 3. She stated you can keep it that way if you want. She stated it has the restrictions.

Mr. Breitzke stated who is going to pay taxes and insurance and also be responsible for the maintenance.

Mr. White stated I would continue to do that as I do now.

Attorney Tallian stated what it says is that ownership of Outlot A is subject to the restrictions and is vested in Charles White his heirs, assigns and subsequent owners.

Mr. Read stated that won’t stand will it. He stated doesn’t he have to transfer ownership. He stated the POA can own it, a county or local park district can own it or a 501C3 tax deductible can own it.

Mr. Breitzke stated our concern is that we don’t end up having it come back for tax sale.

Attorney Tallian stated this is the problem the way this is set up right now.

Commissioner Harper stated shouldn’t the Property Owners Association own this outlot.

Attorney Tallian stated then you have a not for profit owning it. She stated otherwise you are going to get the taxes on it.

Mr. Read stated I think with some modification of this wording this will meet the requirements.

Mr. White stated what about the 501C that you were talking about.

Mr. Read stated well, if you get an organization which is a 501C3, which is a Federal Income Tax deductible for people who donate that. He stated if you donate that that would give you a Federal Income Tax deduction, which you can take in one year or spread over a number of years. He stated as long as it is an organization which is set up to own and manage these properties in perpetuity. He stated you also have the option of putting in some kind of development like picnic tables or trails but you don’t have to. He stated most of the people who have a nice river valley like that basically leave it the way it is. He stated I think you ought to discuss that with your attorney.

Mr. Breitzke stated I would suggest that you go to the DNR and get it classified as either wildlife habitat or whatever.

Mr. White stated obviously I am interested in meeting the ordinance regarding ownership but I am also interested in it not being mowed and planted in grass and turned into a silted stream.

Mr. Read stated my aims are the same as yours.

Mr. White stated depending on who controls that concerns me.

Mr. Read stated you can work that out with the 501C3.

Commissioner Harper stated there are some houses being built there right now, right?

Mr. White stated yes.

Commissioner Harper asked who is doing that.

Mr. White stated I am one of the builders there.

Commissioner Harper stated do you have your silt fencing up?

Mr. White stated I got red tagged yesterday because it got torn down and I didn’t get it back up before I had another inspection.

Commissioner Harper stated I have no problems with this. He stated just take care of your silt fence in that subdivision.

Mr. Read moved to approve Case 05-P-19 subject to the ownership and use of the conservation area being clarified and subject to the approval of this Board at secondary plat. Mr. Cole seconded the motion, which carried on the following ballot vote:

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

Case 05-P-20. Petition of Michael & Charlene Swift, 620 N. 50 W., Valparaiso, Indiana seeking primary plat approval for Swift Subdivision to be located at t 620 N. 50 w. in Liberty Township. (To contain 2 lots on 4.19 acres. Property is zoned RR.)



Eric Banschbach stated I am from Emil Beeg Land Surveying representing the petitioners Michael and Charlene Swift who are with me tonight. He stated we are seeking primary plat approval for Swift Subdivision. He stated we are proposing a 2 lot residential subdivision of 4.19 acres. He stated the parcel is currently zoned RR. He stated the adjoining land is also zoned RR. He stated the parcel is bounded on the north and south by lots in Woods of the Winding Creek, Unit 6 development. He stated on the east and west by existing county roads. He stated the reason that this is a replating of a portion of Woods of the Winding Creek is the inclusion of a small nonbuildable strip along the east side of Winding Creek Path that was platted as Outlot 1 in the original development. He stated my client acquired Outlot 1 by tax deed which in affect gave them access to frontage along Winding Creek Path. He stated there is an existing home site located on what would be lot 1, which is currently being renovated and lot 2 would be the proposed building site. He stated Outlot 1A and 2A were created to meet the open space requirement and the restrictions are on the plat address their use and maintenance responsibility to their respective lots. He stated access to lot 1 will be maintained from CR 50 W. He stated lot 2 will access from Winding Creek Path, which is a dedicated county road. He stated there is an existing retention pond located on the west side of lot 2, which outlets to the west by means of an existing 12-inch cmp. He stated the pond appears to be an isolated storm water collection point for basically this parcel alone. He stated the County Highway Department requested that a portion of the pond located in the right-of-way of Winding Creek Path be moved. He stated that area would need to be filled to keep the pond out of the right-of-way and to siltate the installation of the standpipe, which TAC recommended to be installed would be .10 of an acre. He stated we met with the Drainage Board on August 8 and they did not require the pond and outlet to be regulated. He stated the owner of lot 2 will be solely responsible for the maintenance of the pond and the outlet structure as stated on the plat. He stated we met with TAC several times on this development and they were satisfied with its compliance with the ordinance. He stated the only outstanding issue was the road agreement and that has since been signed by my clients.

No one spoke in favor of this petition.

Hubert Hoffman stated I live at 624 Winding Creek Path. He stated my main concern was the pond. He stated now that they have mentioned here that they did go before the Drainage Board so I guess if the Drainage Board was involved its okay. He stated I know with twenty years experience here that pond has always had water in it. He stated some of it was pumped this past summer


and now there is water back in it again. He stated my main concern is that I don’t want some of this water end up over on my property. He stated what about the covenants.

Brad Dirks stated I live at 622 Winding Creek Path. He stated do you know what kind of house will be built there. He stated I don’t want to see modular homes there.

Gretchen Johnson stated I live at 632 Winding Creek Path. She stated I am concerned about the drainage in the area and that it will be taken care of. She stated there are culverts there.

Mr. Banschbach stated we have been to TAC and they reviewed the drainage calculations for the site. He stated basically the pond is an isolated for storage pretty much for this parcel by itself. He stated it doesn’t seem to get much water other than maybe off of the people to the south. He stated nothing is really going to be changed other than the County Highway requirement of moving a portion of the pond out of the right-of-way, which will require fill. He stated but we are installing the standpipe and extending the outlet for the pond so it is actually on the property of lot 2 and not in the right-of-way. He stated the existing 12-inch cmp will be maintained. He stated the concern about the covenants my clients this evening expressed a willingness to accept the same covenants that Woods of the Winding Creek Unit 6 has when it was originally recorded. He stated we can put those on the plat or have them recorded along side the plat. He stated concerning the houses, they will have the same restrictions on them as Woods of the Winding Creek has in their covenants. He stated basically their size requirements. He stated my clients will be owning lot 1 and they are going to be living there. He stated they have a vested interest just like all the adjoiners.

Mr. Hoffman stated the covenants will be made part of the plat.

Mr. Banschbach stated yes and it will either be on the plat or record it right along side of it.

Charlene Swift stated we have a house on lot 1. She stated I just want to mention that my husband and I are not developers nor do we ever want to be professional developers. She stated we live on this property and the only reason that we are developing and dividing it into two lots now is because of a hardship need. She stated we had a fire last and 90% of our residence was destroyed and the insurance company only gave us 25 or 30% on the dollar to rebuild our house. She stated so the need has arisen for us to try to rebuild our house. She stated we haven’t lived


in it since December of last year. She stated that is what we are trying to do to develop part of it and sell it immediately and raise the funds to finish the rebuilding of our house. She stated we have an interest also in who lives next door to us.

The public hearing was then closed.

Commissioner Harper stated Mr. Dirks you live right across the street and have for ten years. He stated tell me what happens when there is a heavy rain out there. He asked is there water running off of this property at this time.

Mr. Dirks stated when we built our house they had to fill in ours and put the culvert in and we had to reroute the creek. He stated when it rains heavy the water runs.

Commissioner Harper asked does this property contribute to that in any great way.

Mr. Dirks stated I am sure it does.

Commissioner Harper stated I want to ask Kevin is this going to increase any problems with drainage out there.

Mr. Breitzke stated we have a ravine back there and they refer to it as Winding Creek but it is just an area that the water has been going to. He stated a lot of it is the road that goes back there. He stated I think one of the wisest things was to put in a culvert out of the pond. He stated it gives the pond an outlet so it doesn’t overflow and overflow the road and onto their lot. He stated rather it goes back to the creek behind the house. He stated that should alleviate any issues in the future.

Commissioner Harper stated they are going to have to cut the size of the pond.

Mr. Breitzke stated they are going to cut it but the outlet is still the same height. He stated the water is still going to be maintained at the same level. He stated one of the things that they could do is dig back a little bit further along the edge because they need some fill dirt to fill in the highway up along that.

Commissioner Harper stated you have the covenants of Woods of the Winding Creek. He asked do you have those today.

Mr. Swift stated yes.

Mrs. Marshall stated this detention pond it looks like some of the water stands in the road now.

Mr. Banschbach stated it is in the right-of-way. He stated the physical pavement isn’t actually in the center line of the right-of-way. He stated the actual physical pavement is probably ten or fifteen feet west of the edge of the pond. He stated that is the reason why the County Highway Department requested us to fill in that area so the pond stays out of the right-of-way. He stated it is not actually on the road if that is your question.

Mrs. Marshall stated you said the detention pond has an outlet pipe.

Mr. Banschbach stated right.

Mrs. Marshall asked does it keep it at that level.

Mr. Banschbach stated right.

Mrs. Marshall asked is that outlet pipe in already.

Mr. Banschbach stated it has been in.

Mr. Read stated I see the line running to the west here underneath the road invert 795.9 being in the pond and dropping down to 789. He asked am I correct on that.

Mr. Banschbach stated yes.

Mr. Read stated actually the overflow from the detention pond goes onto what you call 157. He stated what is on 157.

Mr. Banschbach stated the house.

Mr. Dirks stated my house.

Mr. Banschbach stated there is a ravine back there but it wasn’t our property.

Mr. Read stated it would help if you would show some of these contours.

Mr. Banschbach stated it wasn’t our property so we don’t have the right to over onto theirs.

Mr. Read asked where does that water go.

Mr. Banschbach stated it goes into that ravine.

Mr. Read stated that ravine is low enough that his house doesn’t get flooded.


Mr. Banschbach stated that is correct.

Mr. Read asked what percentage is the open space.

Mr. Banschbach stated 20%

Mr. Read stated I have a problem with that. He stated all of this area except where your house is has what we defined as natural features. He stated you have the pond and the woods. He stated by the open space ordinance you are required to preserve 100% of the natural features up to a cap of 40%. He stated in other words you have a lot that is completely full of natural features. He stated we are not holding you to 100% of that. He stated there is a cap of 40%. He stated how does that fit into our open space ordinance.

Attorney Tallian stated when you have a parcel with natural features and they are defined in the ordinance you have to go out there and make a determination of what are natural features that are required to be maintained. She stated so if you want to hold somebody to…20% is the bottom. She stated if you want to hold somebody to more than that you need to identify that these are natural features that are required to be maintained under the ordinance. She stated I don’t know the answer to this. She stated I don’t know what is out there.

Mr. Read stated it is heavily wooded and there is a slope rising up with this pond down here and then it slopes up several feet. He stated we define something with slopes too. He stated somebody being the petitioner, it has to initiate with the petitioner to determine how much of this property is natural features. He stated you have some very nice natural features and I would like to see as many of them preserved as possible as I think you would. He stated we want to have it meet the ordinance.

Attorney Tallian stated I would tell you that in my opinion that the ordinance is unclear about who is supposed to do this designation.

Mr. Read asked Mr. Thompson have you seen the property.

Mr. Thompson stated around the pond I thought there are a lot of small trees. He stated yes it is totally wooded. He stated one of the situation that I was looking at when this came in is if you go 40% you do have an unbuildable lot now because you probably predominately taking most of the property and they may not be able to make their hardship situation go. He stated one of the things that I always talked to the Health Department


on this situation is the possibility of instead of making this an Outlot look at the ideal of conservation easements. He stated the conservation easement with the understanding that they also can use it for the usable acreage of their septic system. He stated so if we can ask them to possibly put in a smaller conservation easement in some of these wooded areas that the Health Department would agree to be using for the usable acreage for the septic and still fit a house in we might be able to make this work.

Mr. Breitzke stated we also have a lot that is largely built on, an existing residence and also a pond that probably isn’t natural. He stated it was probably caused by the construction of a roadway and that goes back to one of the drainage problems originally and conceptually was the road damning up water on one side of the road.

Mr. Read stated so a combination of the outlots and an easement would give him a buildable lot satisfactory to the Health Department for his septic. He asked were you here on the earlier discussion on the ownership and management of the open space.

Mr. Banschbach stated yes.

Mr. Read stated it is your decision and you have a number of options.

Mr. Banschbach stated we are only dealing with two lots, two ownerships. He stated I think the easiest way to keep control of that is to have the ownerships of each of the outlots be owned by the owners of the buildable sites.

Mr. Read stated does that equal our…

Attorney Tallian stated yes, yes. She stated we have had that before. She stated what you do is record on the plat that this is a conservation green space and not buildable and list the various restrictions. She stated open space under our ordinance can be owned by an individual owner. She stated if there is no Property Owners Association yes and we have done this before.

Mr. Breitzke stated another thing to bear in mind the pond and detention pond easement are already set aside and they can’t build in that area or use it for much anything else other than detention pond or a utility line that may have to go around it.

Commissioner Harper stated the 40% and I am just telling you because as we are having this discussion tonight my thought


goes back on this ordinance getting passed and what a fight it was. He stated perhaps there are some places that should to be revisited and perhaps this is one of them. He stated trust me the 40% was at the insistence of the builders that were on the committee that created this ordinance because they insisted bringing down the percentage that you would have for an open field. He stated so they said what if you have all this land with all of these natural things. He stated they said we will save 40% of that but you bring us down to 10% or 15% if we don’t have anything on it. He stated at the time it was pointed out to the builders’ representatives that this is only going to apply to a few parcels of land and it may be a problem. He stated I just wanted you to know that is how the 40% got into the Open Space Ordinance.

Mr. Read stated can I ask our Director to make that determination. He stated it might not qualify for that much percentage.

Mr. Thompson stated I had been out there for the staff report but I didn’t go over the fence to physically walk the parcel.

Mr. Read asked you don’t mind if he crosses the fence.

Mr. Swift stated I have no problem with that.

Commissioner Harper stated let’s continue this for two weeks and give you a chance to work this out.

Mr. Read stated work out the wording.

Mr. Banschbach stated the wording on what.

Mr. Read stated the determination on how much of this land qualify’s for natural features.

Mr. Banschbach asked who is going to determine that.

Mr. Read stated our best is our Executive Director.

Mr. Breitzke stated you and Bob will get this worked out. He stated what you have is 1.4 acres of usable ground for septic. He stated you probably can come down to the .4 now. He stated it is not going to be 40%. He asked is it important from the primary plat standpoint to get this resolved tonight or could this go on to final plat and they have to have all this resolved by final plat.



Mr. Burns stated this is my concern. He stated if they have a true hardship I hate to slow them down. He stated they are trying to rebuild their house on a certain time frame.

Mr. Read stated I have no objections to that. He stated you have really two things to ultimately settle. He stated you would have to settle with Mr. Thompson and you would have to run the wording of the ownership and management past our lawyer.

Mr. Banschbach stated that is on the plat already.

Commissioner Harper stated I would like to see if there is anymore comment from the audience.

Mrs. Hoffman stated if you are talking about water running that water runs down our creek, which we live to the north of their property. She stated when that water runs it runs. She stated the Dirks had to spend a lot of money to put their septic system in. She stated if you are going to preserve 405 or 305 of this property how large will this house be. She asked will it go with the covenant.

Commissioner Harper stated we have already decided that the covenants are going to be the same covenants.

Mr. Breitzke stated they must have an acre of usable land which is bigger than many of the lots in Woods of the Winding Creek.

Attorney Tallian stated you have talked about the covenants and about using the covenants that are part of Winding Creek. She stated I don’t know what the covenants of Winding Creek say and I don’t know if Winding Creek has a POA. She stated you cannot just take the covenants and put them on here. She stated you can adopt the same standards but you can’t join their covenants.

Mr. Banschbach stated we can adopt the same standards.

Mr. Burns moved to approve Case 05-P-20 contingent on working out the open space with Mr. Thompson and running the wording of the ownership and management past the Plan Commission Attorney before the final plat. Mr. Read seconded the motion, which carried on the following ballot vote:

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



Discussion concerning drainage problems with Autumn Oaks Subdivision and the Gray property.

Commissioner Harper stated Jack Clem has been talking to her and I think he told her that the next time there is a heavy rain he will go out there and take a look to see what has been rectified so far. He stated I know that the developer has been working with them. He stated I don’t know about the builders.

Mr. Thompson stated we are calling an Executive Session before the meeting on November 9 at 5:30 p.m. in the small conference room on the third floor in room 307. He stated this is to discuss pending litigation.

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