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PORTER COUNTY PLAN COMMISSION
Regular Meeting M I N U T E S The regular meeting of the Porter County Plan Commission was held on Wednesday, September 26, 2007 at 6:30 p.m. in the Administrative Center, 155 Indiana Avenue, Suite 205, Valparaiso, Indiana. Those members present were Tim Cole, Robert Detert, Bob Harper, Herb Read, Rita Stevenson and Kevin Breitzke, President. Those members absent were Rick Burns, Todd Hutson and Elizabeth Marshall. Staff members present were Robert W. Thompson Jr., Raymond S. Joseph Jr., Attorney Scott McClure and Patricia S. Gibson. Mr. Detert moved to continue the reading of the September 12, 2007 minutes. Mr. Cole seconded the motion, which carried on a unanimous voice vote. Correspondence: At this time Mr. Thompson read a letter from John Worstell who is unable to attend tonight’s meeting due to illness. Mr. Worstell will be present at the October 10, 2007 meeting to discuss the drainage problems at Pheasant Hills Subdivision. Mr. Cole moved to continue the discussion on Pheasant Hills Subdivision to the October 10, 2007 meeting. Mrs. Stevenson seconded the motion, which carried on a unanimous voice vote. Old Business: Case 07-P-12. Petition of Dean Bucher, 179 Buckskin Lane, Valparaiso, Indiana seeking primary plat approval for Pleasant Subdivision, Part Two, to be located on the East side of CR 150 E. approximately ½ mile South of CR 600 S. in Pleasant Township. (To contain 1 lot on 0.78 acres. Property is zoned R-1. The public hearing is closed.) Dean Bucher, 179 Buckskin Lane. Randy Peterson, Land Surveyor with McMahon and Associates, 952 S. SR 2. There were two issues that needed to be addressed from the last meeting, one of which the Plan Commission requested that DLZ review this subdivision from a drainage standpoint. DLZ’s approval letter is included in your packets. They reviewed it with one minor comment. They concurred with my drainage assessment. The second thing was the open space. The original plan showed a ten-foot strip easement along the rear of the lots to the South of this lot, where Mr. Bucher has planted many, many trees and he wanted that to be preserved. We have removed that as open space and just expanded this lot to incorporate open space on the lot itself. Those were the two items of discussion and we have addressed them. Mr. Detert stated, I have no questions. Mrs. Stevenson stated, I have no questions. Mr. Cole stated, I have no questions. Mr. Read stated I specifically mentioned a number of things at our last meeting, which have not been addressed. I will start out by saying that this is only one house and, in the grand scheme of things this is very minor in comparison, say, to a 50-house subdivision. I want to get several things into the record because some people either don’t understand our ordinances or are not following the ordinance. We asked for a DLZ review and it was very cursory. It says, “Subject to any required agency review, DLZ finds that the revisions appear to be in conformance with the County’s Storm Water Management requirements. Should you have any question…” I did have some questions, so I called Mr. Kenning from DLZ and I asked him, how much of a review did you give this? Well, all of the information was supplied by the petitioner. DLZ did not do any independent research or independent analysis. One of the reasons that we are doing this is that DLZ is supposed to do independent analysis. Then I pointed out that the Northwest corner of this property has arrows showing surface water draining off the property to the North. I specifically mentioned that at our last meeting. I asked Mr. Kenning about that and I asked him if he looked into that. Mr. Kenning said he did not look into that and he did not consider that at all. I was tempted to ask him if he had ever read our code. But, as it stands, that area to the Northwest drains onto somebody else’s property and the storm water flow is very easily limited for very minimal amount of money. I would tell you how, but Mr. Breitzke keeps reminding me that I am not here to design for you. I think that the petitioner’s engineer presumably has read the ordinance and should know that the storm water flow shouldn’t be going to the North. The storm water flow should be diverted to the swale, which can be done very easily just by moving a little bit of dirt around and possibly to build a small berm. The next thing was that the swale has no outlet. As we were told last time, the ground was sand and storm water would go into the ground. I mentioned at the time that I have 50 to 60 years living on lots that have an underlay of sand and I have seen many instances where there was standing water. So it is critical whether or not that swale overflows or whether the underlying soil will absorb storm water or not. This is something that I think DLZ should have looked into, also. If it requires soil borings, so be it. These things have been ignored. If I had sprung this on you now, you might have something to come back and object to, but I did bring this up to you last time. Well, I am not going to hold this up but I think it is absolutely necessary that we have some kind of meeting with DLZ, which I did think in this case did not do a proper job, and his only comment was that there was only one house. Okay, I will go along with that. We have to have some kind of understanding, and, certainly, the petitioners engineer should be familiar with the requirements. Then we don’t have to go through all of this stuff. Supposedly, it gets caught before it gets to us. With that I will vote for it. I will be looking for this stuff in the future and I want to see it remedied. Commissioner Harper stated I want to thank Mr. Read for taking the time to call this to our attention and I further want to thank him for agreeing to vote for it. I think Mr. Bucher is caught in our problem and I understand that he has done a lot of engineering on this lot. I learned about this and I called DLZ. How much did you have to pay for this review? Mr. Bucher stated I haven’t got the bill yet, but I heard it is $810 or $710. Commissioner Harper stated I am going to vote for this and I don’t think the fault lies with the petitioner because I think we are not entirely committed to our ordinance or someone would have told Mr. Bucher the first time he came that he had to fix that or it is not going to pass. I would like to see the minutes of this meeting typed up and Mr. Read’s comments typed up. I will make a motion to that effect after we get done with this hearing and (get it) sent to DLZ. I think some of his comments are well taken. Commissioner Harper moved to approve Case 07-P-12 for primary plat. Mr. Read seconded the motion, which carried on the following ballot vote:
Cole - Yes Detert - Yes Harper - Yes Commissioner Harper moved that the minutes of this case be transcribed as soon as possible and a copy sent to DLZ. Mr. Cole seconded the motion, which carried on a unanimous voice vote. Case 07-FP-12. Petition of Larry Bucher, 215 S. 75 E., Valparaiso, Indiana seeking secondary plat approval for Arborview Industrial Park, to be located approximately 0.31 miles North of Evans Avenue on CR 325 E. in Washington Township. (To contain 26 lots on 41.13 acres. Property is zoned I-2.) John Sturgill stated, I am with McMahon Associates representing DBL Development, and I am accompanied by Steve Hardin, attorney for DBL Development. Also here tonight is Larry Bucher. The proposed subdivision encompasses 26 lots on 41.13 acres. We have received primary plat approval and are seeking secondary plat approval this evening. We have attended DAC meetings on August 31 and September 14 where we made some minor revisions and those revisions are incorporated in the plans that were distributed to the Plan Commission members. Mr. Detert stated, I have no questions. Mrs. Stevenson stated, I have no comments. Mr. Cole stated, I have nothing. Mr. Read stated, we have before us a secondary plat, one sheet. There are other sheets that are part of this total package which shows things like detention basins, requirements for screening, and so forth. They are not in this package that was sent to me. I have been through this question before, also. I will say it again that even though it is secondary, I want to see the total package sent to me. Now maybe the other members of this Board feel they don’t need it, but I do. I am going to ask Mr. Thompson to make sure that on secondary on this job or any other job that I get the total package. There are several reasons for this. First of all, in some cases there has been considerable time between primary and secondary. There has been one where there was five or six years. Also, there have been instances where there are new people on this Board that have never seen the primary documents at all. Again, I will not hold this up. I am putting everyone on notice that I want to see the total package before me or I won’t vote it. Commissioner Harper stated, there is a list of covenants that they discuss. Mr. Thompson stated, correct. We did that at primary plat. Commissioner Harper, stated so those are all in place right now. Mr. Thompson asked, do you have an actual set of covenants recorded and in place?
Mr. Sturgill stated, no, the covenants are not recorded yet. Commissioner Harper stated, I agree with Herb and I am not going to hold this up, but we should have the covenants at this meeting to look at. I might have a few less questions than I have. What written confirmations do we in place on the landscaping around the outside and tell me a little bit about it. Mr. Hardin stated, when we were here for primary plat we then provided a set of commitments and covenants that specifically set out and I can read them to you. It says, “That the developer agrees to construct an undulating berm of topsoil planted with two rows of staggered evergreens along the Real Estate’s West and North property lines and to create a 30-foot landscape easement along the Real Estate’s East property line planted with two rows of staggered evergreens. These landscaping screens shall not be required in those areas where it is inappropriate to do so due to the location of streets, drainage or other infrastructure. The developer shall determine the size, species and spacing of trees and the height of the berm, using guidance from landscaping professionals”. I believe that was something that when we were here at the original Plan Commission meeting there was some question about the exact terminology to that. We were encouraged to go back and look at the minutes from the previous meeting to try to make that verbatim to how that was done. We did that and submitted it to the county’s attorney for approval. Commissioner Harper stated, that is fine with me, except I pose this question. On future developments are we being specific enough with that? Does our new code discuss this in any greater detail? Mr. Thompson stated, as far as landscaping, it does not, but it does talk about the infrastructure requirements prior to improvements. Commissioner Harper stated, when I hear what he reads it sounds to me like he can put in two rows of trees and if each of them are two feet tall he will meet the requirements of what he has agreed to do here, unless I misunderstand what that says. I am not asking it to be changed at this late date. I am asking, is our code… Mr. Thompson stated, our code is pretty tough as far as landscaping standards goes and not necessarily all evergreen trees. We try to throw in deciduous trees also to try to make more of a natural… Commissioner Harper stated, what he just read there, couldn’t he just put a couple of rows of trees in. There is no height requirement. Mr. Thompson stated, in our current UDO there is a specific spacing that they must meet per foot. Commissioner Harper stated, they aren’t subject to current codes, correct? Mr. Thompson stated, correct. The primary plat was approved prior to adoption. Also, in this situation, each one of these lots when they come through with the development on it will have to come in front of this Board with the development approval. It won’t be a public hearing because we have already been through a public hearing with the subdivision. It will be under old business and at that time you can check to see to it that each one of those lots in those areas along that we can make sure that we try to notify this Board on those borders where they are at and to make sure that they have the berm that they said and that the plantings are in. Mr. Read stated, I heard you say on what you just read refer to the East boundary. As I recall, the North boundary borders the residential area. Do you have a screen on the North boundary, as well as the East boundary? Mr. Hardin stated, I may have read a little too quickly, but you may not have been able to hear me when I read that -- The undulating berm and topsoil and planting of two rows of staggered evergreen trees along the real estate’s West and North property lines. Then there was an additional provision along the East, as well. So the answer is “yes.” Mr. Read stated, at least a portion of the east boundary which abutted residential is what we are looking for. The Southern portion of the East boundary was school property. Mr. Hardin stated, correct. Mr. Read stated, the Northern portion abutted residential and our purpose here was to get it along the roadway and where it abuts residential property. You are covered on all of that. Now getting back to what Mr. Harper brought up, you may not be required to in this case, but I think that for an effective screen, we should make sure that we require a mix. With two rows you can have low-lying evergreens, and I think we lean toward evergreens because it screens also during the winter. White pines are often planted. That is what many developers choose to plant. One good thing about a white pine is that it grows very fast and it goes up high. The lower branches die out, though. So an effective screen after a certain number of years of maturity may have white pine up high and lower evergreen shrub height as the second row. In some cases I think that we should think about a third row. Commissioner Harper moved to approve Case 07-FP-12. Mr. Cole seconded the motion, which carried on a unanimous roll call vote. Case 07-FP-13. Petition of Archer Properties, LLC, 412 Woodland Meadow Ct., Valparaiso, Indiana, seeking secondary plat approval for Archer Industrial Park, to be located at 408 E. 333 N. in Washington Township. (To contain 7 lots on 17.7 acres. Property is zoned I-2.) Eric Banschbach, Torrenga Surveying, LLC. With me tonight is Shaun Byvoets, the petitioner. This is a petition for the final plat approval for the seven-lot industrial park subdivision called Archer Industrial Park. This was previously approved by this board for primary plat on December 14, 2005. The petitioner elected to complete the infrastructure items for the subdivision after receiving the primary plat approval. All the items on the original bond estimate have been installed, constructed or completed, including the construction of the road, the pond and the outlet structure. The pond and the outlet was approved as a regulated drain, with maintenance assessments to be collected. The plat was reviewed by DAC on August 31 of this year. Mr. Detert stated, I have nothing. Mrs. Stevenson stated, I have nothing. Mr. Cole stated, I have nothing. Mr. Read stated, you heard my previous comments about having the total package at secondary. Again, I will not hold this up but there are other documents that I recall coming with this. Commissioner Harper asked, what do we have now in place with this as far as screening, if any. Mr. Thompson stated, to the South and to the North is all industrial property. Therefore, by code, they did not have to screen. To the West is the road where they have other industrial Properties, such as Heat Wagon and others, so they didn’t have to screen. The East side is bordered by a ditch. It is a regulated drain and it is residential on the other side of the ditch. They have kept the regulated drain easement, the 75-foot easement, and I believe it is heavily wooded in that area and they have agreed not to touch anything. Mr. Banschbach stated, there is a substantially existing tree line on both banks of the ditch. Commissioner Harper asked, where is that in writing? Mr. Thompson stated, first it is in a easement, which is on the plat. It is a 75-foot regulated drain easement and they cannot do any work in that easement unless they get approval from the Drainage Board. Mr. Breitzke stated, they have a pond on the other side of it too, so it is really not too practical. Commissioner Harper stated, the state statute doesn’t say that you won’t cut trees down in an easement that you have on your property. I don’t want to stop this subdivision. I am pointing out to you that we should have some written commitments if we are relying on that. Mr. Thompson asked, would you be willing to put on a note or a commitment on your plat that when it is recorded that it states that you will not do any clearing of the trees within the drainage easement? Mr. Banschbach stated, I think Mr. Byvoets would be… Mr. Byvoets stated, that is fine. Mr. Breitzke stated, the Drainage Board may have to take down some, particularly for diseased trees or trees falling down and to have heavy equipment get back there rather than get on the residential side. One of the things that I am going to suggest when they do the commercial buildings is that they commit to a screening on those two end lots on the West side of the pond to also help with that screening. Mr. Thompson stated that if they agree to that commitment on the recorded plat he will see to it that that is on the plat before he signs it. Mr. Banschbach asked if they mean a commitment for the lots for when Lots 4 and 5 are approved and a screening along the West side of the pond. Commissioner Harper moved to approve Case 07-FP-13 with the understanding that within 10 days they provide staff with a commitment that they won’t cut down trees on the drainage easement and that they commit to putting in a screening on the West side of the pond and along the East side of Lots 4 and 5; and that said commitments be along the lines that the Buchers just made on the East side of their property so they have a possible description; and that that be provided to staff within 10 days. Mr. Detert seconded the motion, which carried on 6-0 roll call vote. Other business: Commissioner Harper moved to approve the Rules of Procedure, as amended. Mr. Cole seconded the motion. Discussion: Mr. Read stated that there is a potential of another paragraph on the existing that might be in conflict with the revised rules of procedure. The new one was intended to make sure that people were notified properly when things went up before the Commissioners. The new section is Paragraph D, but there was a section in here in which there was an occasion when a plan was postponed or delayed for some reason or other. His problem is that the paragraph C, on Page 14, under the heading of continuances, could conflict with requiring the proper notification. That paragraph says: “The Commission or BZA may determine if renotification of adjoining property owners may be required”. The new paragraph says that renotification is required. He thinks they should be renotified in both instances. He asked Mr. McClure to give a reading on that or whether it should also be amended to require renotification. Commissioner Harper stated that he thinks if they don’t amend it they will be voting every time that they get a continuance on whether to notice or not. Mr. McClure stated that he thinks the original notification was for rezones, in which case they have to give notice of the Commissioners’ meeting. This is an all-encompassing that says, whenever this Commission wants to they can make a petitioner renotify, so, one is specific that you must for rezones; this one is that whenever this Board feels like it, they can make the petitioner renotify the adjoiners. Mr. Read stated that he thinks adjoining property owners should be renotified any time there is something happening with property that is within their zone of interest. Mr. Detert stated that he would think the second time they notify they could do it with regular mail. Mr. McClure stated that right now we are notifying on public meetings; some of these things aren’t public meetings. Mr. Thompson stated, especially since the one Mr. Read mentioned is under the section referring to continuances. Mr. McClure stated that when a public hearing is closed and a case is closed and then, if they renotify, there may be some confusion as to when the public hearing portion is over. Mr. Read stated that he doesn’t think that’s too confusing. People have at least the right to come back and see whether the things that were discussed and changed have been done, even if the public hearing is closed. He thinks the public should be notified under any and all circumstances. Commissioner Harper stated, usually, if there is a public hearing and there aren’t a lot of questions the Commission votes on it that night; most of the time, when a petition is continued, it’s because the Commission feels they either have to change something or provide more information. He agrees that the public should be notified when the Commission is coming back to that meeting. Mr. Detert stated, on occasion there is a split vote. If that happens and it’s automatically continued, should there be renotification on something like that? Commissioner Harper stated that that could be decided on a case by case basis. Mr. McClure stated that he doesn’t think there is any problem with notice when this board requires notice to do it by first class mail, to have the petitioner be responsible for it and to pay for it and to provide an affidavit back affirming that so that there is no additional cost or work for the County. Right now, it’s already at the Commission’s discretion. Commissioner Harper stated that perhaps they could pass this tonight and then start thinking of some instances where it should be made mandatory and then it could be amended again. Mr. Thompson stated that one instance that probably should be automatic notification is when the board continues for additional information. Mr. Detert stated that he agrees. Mr. Read stated that that’s a good way of defining it: When there is going to be a change or an addition or revision, then everybody should be notified; if it is merely postponed because someone had a toothache, then that’s a different story. Mr. McClure stated that he thinks it should be decided, if a case is continued for more information or changes and notice is to be given, are we going to reopen the public hearing? His concern is a member of the public attends a meeting, not understanding the process, and then the case is continued and he’s renotified, but he is not allowed to talk. Commissioner Harper stated that he agrees that’s a problem. Let’s pass it as it is tonight and then start thinking about times when there should be additional notice and perhaps it should be put in that notice that the public hearing is closed and it can’t be guaranteed that there will be any public discussion section. Mr. McClure stated, alternatively, the Commission could move to continue the hearing, renotify and reopen the public hearing. Commissioner Harper stated that amendments could be brought up at the next meeting, but we should get at least this part of it in place. Mr. Detert stated that he found a bunch of things in here and most were typos, but there is one section where it refers to 4.5 of these rules, and there is no 4.5. Mr. Thompson stated that the Commission’s attorney at that time, Karen Tallian, is the one that drew those up, and he does have an electronic copy of that, so he can go through and fix the typos and try and figure out what the reference to 4.5 is. Mr. Detert stated that we don’t really differentiate in here between continuing a meeting and tabling a meeting and there is a difference under Robert’s Rules of Order and he thinks we should follow those, and there are two steps that can be taken. He would think that notification on something that was tabled would be important. Mr. Read asked if a motion to table cuts off discussion. Mr. McClure stated that any motion cuts off discussion. Once there is a second it can be reopened for discussion, most of the time, on that motion. Mr. Read stated that he had heard that a motion to table, with a second, cuts off discussion. Mr. Detert stated that he doesn’t think that’s true; you always have the ability to discuss the motion. Commissioner Harper moved to approve the Rules of Procedure, as amended. Mr. Cole seconded the motion, which carried on a 5-0 roll call vote. Discussion on Falling Waters subdivision. Mr. Detert stated that he thinks we are at an impasse again where we are not getting things done and he thinks maybe Tony Floramo should come back again. Don Plumb asked if the Commission got a copy of the list of items and completion dates. Mr. Thompson stated that we did, but pages are missing. Mr. Detert stated that everyone he’s talked to has said that what the Commission has done has improved the subdivision substantially, but, when he goes through there, there are still a lot of things that aren’t done. The roads are going to pot. Mr. Plumb stated that at the last homeowners’ meeting they talked about the roads, and it was the consensus of the property owners to wait for the final coat. Mr. Detert stated that that’s not a reason not to patch where it’s crumbling. Mr. Plumb stated that there should be patching where it’s crumbling, but, like the sunken curbs and things of that nature, he’s been told that that will be done when Mr. Floramo does the final lift. Mr. McClure stated that he’s hearing two different things, one issue is dips, sunken areas, curbs that are failing etc. are part of the final binder application, and he believes that that’s standard; then he thinks that the question that Mr. Detert has, if there are crumbling areas, is there anything for patching in the meantime? Mr. Plumb stated that he was told by Mr. Floramo that it’s his intent to patch where needed. He’s going to go along with the wishes of the residents and not put the final lift on, the concern being that trucks rolling in and out are going to tear up the final lift and that will become the responsibility of the homeowners then. Most of the things that are on the list to be copied are on the final lift. Mr. Detert stated that if there is a hole that is not immediately patched, it’s just going to get bigger. Mr. Plumb stated that when a hole forms he was told that Mr. Floramo’s intent was to go ahead… Mr. McClure asked if there are chuckholes, are there still issues? Mr. Detert stated that there still are a few. In the back, there is an area about 6-foot-long and about a foot wide and it’s all crumbling. He is concerned about winter coming on if it’s not patched beforehand. Mr. Plumb stated that he would recommend that the Commission ask Tony Floramo to come in and speak directly to the board. Mr. McClure stated that he believes the decision of the current homeowners to delay placement of the final lift puts the Commission in the situation where 60 percent of the list isn’t going to be fixed for two or three years or however many years it’s going to be. Mr. Plumb stated that the opinion of the homeowners may change if things haven’t changed drastically in the next couple of years. Mr. Detert stated that he agrees with the homeowners putting that off. He thinks we have to see that those areas that are crumbling are patched so that down the road we don’t have roads that are inaccessible. Mr. Plumb stated that one of the things Mike Cap discussed with him was the possibility of using a chip coating (sic) or something at the edges where the catch basins are an inch above the flow line in an effort to try to collect water and stop some of the ponding that happens around the catch basins, and that would only be done in the areas where water flows. Mr. Detert asked what’s been done to resolve the issue between the neighbor and Mr. Floramo at the lake at the West end where the person has the signs up saying “no trespassing”. Mr. Plumb stated that the problem, as he sees it, is that the line falls very close to the edge of that lake, about where the sign was placed. If you were to extend the Quarter Section line through there that’s about where it would fall. If the gentleman on the West side of that lake is laying claim to that line, that might be where he posted his sign. If that’s the case, it becomes a legal issue as to who has rights to the water and who can do anything with it. Mr. Floramo might not have enough access, legally, to get into that lake and do anything to clean it up. He’s looked at it on an aerial photo and he’s got shoreline all the way along there, but he doesn’t really have a lot of access to the water out in the lake. It may go out 10 feet and then the peninsula cuts it off. He stated that he talked to Mr. Floramo today, and the aeration of the lakes has been a sticky point. It’s a long story of inaction with trying to get used pumps to work. Mr. Floramo’s position right now is to wait until spring, buy two new pumps and new lines and have it all installed at one time by a contractor, rather than trying to have his maintenance people patch things up. One of the problems they ran into is they bought some wire to run them out and it’s a 400-foot-long piece of wire and it got sabotaged and cut before it was installed. It was done by some of his maintenance people and was kind of a haphazard application, but, since he would be taking the aerators out in about a month anyway for the winter, he said that he would just as soon wait until spring. The South gate, the in gate, was damaged by a car ramming the gate. The homeowners’ association has an insurance policy that would cover damage, but it’s a $1,000 deductible. Right now, it’s about $40,000 in arrears in dues and there are no funds to pay the deductible, so the gate sits there, and it’s going to be discussed at the next homeowners’ meeting to see why the residents aren’t paying their dues. In his opinion, it’s not a developer problem – it’s a homeowners’ problem. Mr. McClure asked if the homeowners’ association is active. Mr. Plumb stated that it’s active in the sense that Mr. Floramo is the major player. He has two votes per lot for his lots. Everybody else has one vote. Commissioner Harper asked if his dues are up to date. Mr. Plumb stated that he doesn’t think there are any dues due until it’s sold out of his hands. If it’s sold to a builder or something and it’s an empty lot he thinks it’s like $300 a year and then jumps up to $600 a year when a home is built. Mr. McClure asked if there are mechanisms in the by-laws of the homeowners for collection. Mr. Plumb stated that there are and they have not been exercised up until this time. When he discussed that with him today, why there’s no funds there, Mr. Floramo told him to file a lien or send collection letters out or to do whatever he has to. Mr. McClure stated that that’s a fairly standard legal action that almost every homeowners’ association in this County has taken themselves on a daily basis. Commissioner Harper stated that Mr. Floramo is saying that this homeowners’ association is based on votes per lot, even though those lots are not paid. So you’ve got one guy who’s apparently not paying any homeowners’ dues that runs it, and that’s what they have to make sure doesn’t happen again. Mr. Read stated, as far as enforcement of the dues, as he recalls, in the ordinances it gives the homeowners’ association lien rights. Commissioner Harper stated that Mr. Floramo can say that he’s the president and Joe is the treasurer and vote and they are not going to do anything. Mr. Plumb stated that there’s been enough pressure now that he believes that the request has been made to go ahead and turn the non-payers over to an attorney, send collection letters and file liens, if necessary. Mr. Plumb stated that the next homeowners’ meeting is going to be on the 11th of October and that will be a topic of discussion. Commissioner Harper stated that he is raising the problem as a homeowners’ responsibility and some of the homeowners are mad that the others aren’t paying and that the association isn’t doing anything. But nothing can be done unless Mr. Floramo takes action. He thinks that becomes a problem in the homeowners’ meetings, that they don’t get down to brass tacks. The brass tack is that either he agrees that either those people that are paying have the votes…you have to empower the homeowners when they go into a meeting to let them demand that they change the charter immediately to provide that those paying dues are the voting people of the homeowners’ association so they can start doing something. Mr. Plumb stated that that wordage is going to be in the amendments that they are going to be discussing at the next meeting, that if you don’t pay your dues you don’t have a vote. Mr. McClure stated that he thinks Commissioner Harper’s point is that he doesn’t think they have a vote right now. Commissioner Harper stated that the homeowners don’t have a vote until they cut out Mr. Floramo’s vote. Mr. McClure stated that if there is a person living in the subdivision who hasn’t paid any association dues and that person sells their home under that state, they are never going to get those homeowners’ association fees. They’re just gone. Mr. Plumb stated that retaining wall caps were one of the issues. Mr. Floramo told him he’s found a supplier for the oversized caps and plans to install them before winter. Mr. Read stated that once water gets into those walls and there is a freeze-thaw cycle it’s going to crumble out the whole wall. Mr. Plumb stated that he thinks Mr. Floramo understands that and he told him that he’s planning on doing it before winter. Mr. Read stated that he could do it with poured concrete, if he can’t get the precasts. Mr. Detert stated that it looks like things have stopped again. Mr. Plumb stated that he thinks there’s been a lot more maintenance, as far as mowing and cleaning, but, as far as repair issues…in this letter it does explain what happened with the lights, why some are not completed. There were a few pieces of connections that wouldn’t fit the new lights and they had to send them back. One lamp was broken entirely and had to be replaced. Mr. Read asked what happened to the watchman that was supposed to be there fulltime. Mr. Plumb stated that he doesn’t think there was a watchman; it was a maintenance guy. Mr. Detert stated that he hears that Mr. Floramo laid him off. Mr. Plumb stated that he doesn’t know. He heard that there was an intent to do that. He doesn’t know if it was ever done. Mr. Detert stated that he’s not sure where the photos that they have came from. He asked if that’s the house that had the sewer problem. Mr. Plumb stated, yes. Mr. Detert stated that that’s why that’s in the road. They had a plugged-up sewer in the line going to his house, so that’s not the fault of the developer…or, it could be, depending on where it’s plugged up. Mr. Plumb stated that he was standing there when they uncovered it. The tap comes up out of the main and turns and goes toward the house and that connection had collapsed. So, it was something that had taken place when the sewers were installed. The backfill was all clay. It was not sand. It was bedded in stone with stone on top of it, but then on top of that, it was clay. The tap has been repaired, but he doesn’t think the concrete has been replaced yet. He thinks it was repaired by the homeowner’s contract in an effort to get them back in the house. Commissioner Harper asked, since the last time they were here, what’s transpired about getting this paperwork done so that the way that these houses are assessed for the bond issue is by lot. Mr. Plumb stated that one of the issues they’ve had is the electric to the gate on the North end and Kankakee Valley has been requesting to run the electric in. The backfilling has been done and they’ve got a place they can put the line in; they’ve just been dragging their heels and haven’t got it done yet. Commissioner Harper stated that that should be followed up on tomorrow and call Kankakee Valley to see if they have been called more than once and have been paid. Mr. Plumb stated that the exceptional benefits tax – he talked to Mr. Dave Hollenbeck today and he said that the conservancy district board voted to invoke the exceptional benefits tax and instructed him to prepare the papers to submit to the court because this has to be a court action. He has to substantiate the exceptional benefit in order to use it. He has to show that without the sanitary sewer and the water lines that it would be well and septic and what the value of the property would be, and if this is of benefit to the property and if it does increase the property value. They have not submitted any other budget to the state, so, if they don’t do this, there won’t be any money collected next year to pay off the bond from the homeowners because the tax won’t be in place. Commissioner Harper stated, so, basically, per his prediction, since the last time they were here, nothing has been done on that. Mr. Plumb stated, well, it has been done in the sense that the board voted on it and instructed the attorney to… Commissioner Harper stated that he thought that’s what he told the Commission last time. He stated that it’s almost unbelievable to him that they don’t have an attorney in place making sure that this is done. He told Mr. Plumb two weeks ago that this is not going to get done unless he stays on top of it. If this plan goes through, the developer is going to have to come up with $400,000 or $500,000 a year to maintain this. That’s telling you that you don’t know who is going to be owning those lots two years from now and that they better get this plan in place. The Plan Commission cannot put that plan in place for them. Mr. Plumb stated that he’s not basing his judgment on what Mr. Floramo is telling him; he’s basing it on what Mr. Hollenbeck told him and he said that he’s been instructed to take it to court. He has every intention of calling Mr. Hollenbeck weekly to see what the progress is. If this tax is not done, there won’t be any income from taxes in 2007, payable in 2008. Commissioner Harper stated that that may or may not be true. Mr. Plumb stated that the statement came from Mr. Hollenbeck. Commissioner Harper stated that you guys should have an attorney representing you in this matter. Mr. Detert stated that the greatest thing they’ve got going for them is the covenants, and he’s been told, sitting on this panel as long as he has, he’s been told repeatedly that covenants are even stronger than the County ordinance. They need to get an attorney to look out for their welfare. Commissioner Harper asked Mr. McClure if he’s right in thinking that things might happen, that somebody might take over the bond issue. Does he have a copy of the minutes from the meeting where they adopted this tax? Mr. Plumb stated that he’s taking Mr. Hollenbeck’s word for it. Commissioner Harper stated that it's such a critical issue. Mr. Plumb stated that he feels comfortable at this particular time that in his discussion with Mr. Cap and Mr. Floramo and Mr. Hollenbeck separately, not all at one time, that it appears to him that it’s their intent to do this and do it now and get it done. Mr. Cap told him today that he’d like to see it done before November, to have the correction in place. Commissioner Harper stated that they’d better start looking on the dark side. When Mr. Plumb tells him that Mr. Cap is pushing someone to get something done…they can’t even get a light post on and they’re telling you that they’re going to get this major project done that’s going to protect everybody in that subdivision. One possible scenario might be that Mr. Floramo could wake up the next morning and say he’s insolvent and that he’s going to file bankruptcy. A federal court in Illinois would probably take this over and there won’t be anything done forever. There will be no going to a circuit court. Nobody can do anything. He thinks they better get in gear and take a hard action line and get this thing done, because, if something goes wrong, in one day, this thing could crumble. Mr. Plumb stated that that’s definitely a possibility. Does he think that that’s going to happen? No. They’ve discussed the possibility of hiring an attorney to represent them, but if he sees movement in the right direction and following up on what they say they are going to do with this Board on the tax issue, he, for one, is not going to go out and hire an attorney by himself and the homeowners, as a group, are splintered as far as who wants to do what, and it has to be done as a group. Mr. Detert asked when their next homeowners meeting is. Mr. Plumb stated, October 11th. Mr. Detert asked, where and when. Mr. Plumb stated that they are usually at 7:00 at the school. Mr. Detert asked what kind of attendance they are getting on property owners, the people who live there. Mr. Plumb stated that he would say about 50 percent. Mr. Detert stated that when he drives through there there are a lot of people out in the yards that he’s never seen before on the weekends and they’ve never been at the meetings. He asked if they understand what is going to happen to them. Mr. Plumb stated that they’ve tried to spread the word. It’s difficult with the number of the people that they have, especially if they’re on two sides of the fence, to take unified action. He’s seen a major change in the positive direction in the last six months and he’s inclined to believe it will continue, though he’s still going to be out there every day going over things. He believes that the sanitary plant surpasses anything in the area. One issue that would be a help to the homeowners’ association is the potential for a requirement, either by the Plan Commission or the Building Department in Porter County, that is similar to what the Town of Schererville has. They require an as-built site plan of a home in a subdivision or anywhere in the town. It could be done in Porter County in platted subdivisions to make the as-builts a requirement for a CO and if things don’t match the submitted plan, they don’t get a CO. Mr. Thompson stated that that has been discussed and they are looking into an amendment. We are not doing it at occupancy, but, instead, right when the foundation is done. If everything is okay, the permit would be issued for them to proceed on with stick-framing the house. Mr. Plumb stated, that’s a good move there. One of the reasons that Schererville requires it on completion, as well, is that they’ve picked up things like room additions and decks that weren’t on the original plan and they collected additional building fees, but one at foundation would be ideal. Final grading, however, can have a lot to do with it, as well. Mr. Detert stated that there are a lot of problems that have been caused by builders, as well as the developer, but the fault still lies with Mr. Floramo because he’s running the POA and he’s the guy that should be taking the covenants and taking these guys to court, and he hasn’t done that. Mr. Plumb stated that the cooperation that he’s gotten from Mr. Cap recently about sharing information, about the treatment plant, about some of the things going on in the subdivision and activating the architectural review committee to be part of an inspection team and get a couple residents involved in inspecting as things go along…Mr. Thompson’s idea of an interim check when the foundation is in is a good idea. Commissioner Harper stated that perhaps Mr. Joseph could call and get a copy of Schererville’s ordinance to add to information already discussed. Mr. Plumb stated that he asked them if they had something in writing, and basically, what the building department did is they came up with a checklist of requirements and it’s kind of an administrative thing. Mr. Read stated that they saw a lot of places where the silt fence was mashed down or completely…these were pictures taken as of yesterday. Commissioner Harper stated that there are a couple that really concern him – there is a waterway going down here and… Mr. Detert stated that that’s a sewer problem – they had a backup on the sewer. Commissioner Harper stated, but when they start moving dirt like that – and they are going to have a hearing at the Commissioners’ meeting on Tuesday night about Flint Lake and all the problems it’s getting – he has to ask, why aren’t we citing these people for these problems? Mr. Thompson stated that he will get the picture over to the Building Department and ask them to inspect it. Mr. Read stated that the small waterway – it’s a valley that dirt is being pushed into – runs under the road to a large lake. Commissioner Harper stated that that might be adding to the problems. Mr. Detert stated that the builders are doing this; Floramo is not following up… Commissioner Harper asked, why aren’t we following up? Mr. McClure stated that there are two issues here: One is, the homeowners’ association can enforce and the County can enforce. Mr. Plumb stated that that’s the sort of thing of why they are meeting with Mr. Cap and they are going to go through the subdivision and look for places like that and decide what action will be taken at the time. Part of the declaration changes is that they are amending the declaration to include renters and leasing of homes and nuisances, and they are also going to address the voting rights of non-paying members and some of the other issues where deposits have not been charged in the past to builders and they are being charged now, but, they are going to be enforced, and, in an effort to enforce that, have residents viewing these things on a regular basis. There was a discussion regarding photos of one house in particular. Mr. Plumb stated that there are some homesites that have silt fences up, but they are not touching the ground, and that’s one of the things we need to birddog. Mr. McClure stated that if the homeowners’ association was in a place to enforce it and/or contact us, we can send somebody out there and start citing them. Mr. Plumb stated that one of the complaints that he’s had and that he’s harped to Mr. Cap and Mr. Floramo about is that they should share information with them. Commissioner Harper stated that the issue with how the bond issue is going to be paid just concerns him. Mr. Plumb stated that he’s made repeated phone calls and has been getting progress reports, but now he will get on Mr. Hollenbeck’s back to see that he keeps moving forward. Commissioner Harper stated that if somebody filed bankruptcy, this is now dead in the water. On the other side of the coin, if you have this all in place and then a bankruptcy is filed and each of those lots, at least, is going to be responsible for that, where, in this scenario, they might not be responsible for anything. Mr. McClure stated, bankruptcy or sold. If someone bought Mr. Floramo out tomorrow, that’s almost an effective bankruptcy. Mr. Plumb stated that there is a measure of control in the fact that, he believes in January, what was going to happen is that one of the residents who is a member of the conservancy district board, the following year, Mr. Cap can be removed from that board, and the following year, Mr. Floramo can be removed from that board. Commissioner Harper stated that they are more worried about that two months from now that they get this plan in place. Mr. Plumb stated that as time goes along, the tax issue will be handled by people who live in the subdivision, not developers. Commissioner Harper stated that what they need to worry about is what is going to happen two to six months from now, and that’s why they need to get that plan in place. Mr. Detert stated that Mr. Plumb said earlier that if a lot is sold then it becomes a dues-paying lot. He heard that Mr. Floramo is paying off some of the people by giving them lots – whether that’s true or not, he couldn’t say. Mr. Plumb stated that he’s heard some rumors also that turned out to be false, but he’s going to look for the truth. Mr. Detert stated that they better start helping themselves; the Plan Commission is limited on what it can do. Commissioner Harper stated that they should come back in two weeks. Discussion about construction standards. At this time, Mr. McClure stated that he has a couple of items that he would like to send on to Ground Rules. One is the finished floor option that had been discussed. We have swales, ditches, etc. and the whole subdivision is built in such a matter that it’s sensitive to yards, how deep the yards are. There are a couple of subdivisions where people build up the lot 2 or 3 feet and it changes the drainage for the whole subdivision, or at least the lots around it. This finished floor option that he was considering would kind of have the following parameters that they’d send to Ground Rules for a proposed amendment to the zoning ordinance that would require…right now, his understanding is that, at some point, we have an inspector go out to inspect the foundation of these homes to make sure it’s in virgin soil, etc., and, at that time, his suggestion would be that the builder would have to provide to the inspector a surveyor’s affidavit of some sort that would specify what the finished floor level is of that house. We would also require the finished floor be placed on the plat, probably at the time of primary plat. That way, we know that this subdivision, this particular lot and the whole system is made for this yard to be between this and this depth. Therefore, the finished is between these two numbers, or here is the finished floor, not to exceed at. That way, when they’ve got the foundation in, somebody can go out there and, at this point, the only thing in is the foundation and we can then know pretty close where that finished floor is going to be, which, at that point, if we know where the house is, if we come back later and we have a water problem and the yard’s been built up, we at least know that we can take the yard down to fix the drainage problem. His concern on waiting until the house is built to get this is that if the house is incorrect, it’s left us in the past with very few solutions to fix the problem. If the builder does it and we do it kind of in conjunction with the inspection of the foundation, then there is no additional expense or work for us. What we would need is to have the ordinance changed to require finished floor on the plat and to have the rules of procedure changed, or internal policy changed, where they produce the surveyor’s affidavit, at their cost, at that inspection. Mr. Read stated that the type and construction of the floor can vary in height from the top of the concrete – if it happens to be a slab, it’s easier, because then, generally, the thickness of the slab on top of the foundation wall is one thing. If it’s a wood floor, it’s something else. You have to have the finished floor and it’s going to be up to the contractor’s engineer to get it right. You’ll also have to think about the fact that, say, the garage floor might be one or two steps down from the first floor, and it’s going to be a slab. Mr. McClure stated that he would like to send it to Ground Rules when we have a quorum to have them send something back. If we get one back and it’s all wrong, we only then have a foundation. If the foundation is correct and they just build their house up crazy, they can go in and make that fix. Mr. Read stated that the tendency, as a subdivision gets built out, is for each succeeding house to get higher and to mound up. Mr. McClure stated that we have comprehensive drainage plans, but they’re all sensitive to these swales in people’s back yards, and if you’ve got one guy 6 inches higher than he’s supposed to be, you’re going to have a drainage problem in that subdivision. The second item was to ask Ground Rules the concerns about the conservancy district to ask their opinion if we have any way of adjusting the ordinances or if it’s just out of our control, but basically, if we could mandate that the conservancy district tax be prorated by lot, as opposed to levying a tax based on fair market value. Then also, the advertising to the homeowners as far as notice. Right now, it’s just in the newspaper, but no physical notice to the people living in the subdivision. Then, also, the disclosure on what the taxes would be for the conservancy district and what it’s including. He guesses that we are going to get some limited answers on the conservancy district, but he thinks it’s still worth an opportunity to try. Commissioner Harper stated that he thinks one thing the Commissioners could do is the Commissioners have to approve that first board of directors, and he thought that they could insist that the township trustee be on that board. Maybe we could say that we want an environmentalist and a township trustee on that board. Mr. McClure stated that I know we don’t have a quorum, but I don’t necessarily think it takes a vote, because we’re not approving this. The only thing we’re saying is to get Ground Rules to give us some suggestions, bring it back to everybody and then we can review them and vote on it at that point. Commissioner Harper stated that one thing Mr. Read is suggesting is to contact all these towns and so forth and get a good checklist of what we need on primary plat. Mr. Read stated that some lawyers or developers get in front of us and say at secondary they only have to have this particular sheet. Mr. McClure stated, but that’s based upon our ordinance. Mr. Read stated that he couldn’t find anything in the ordinance that says at secondary they only had to supply one sheet that doesn’t show the information. Where does it say that? Mr. McClure stated that he knows he’s read it in the old code. He doesn’t know where it is in the UDO. Mr. Read stated that it says what you have to have, but it doesn’t say… Mr. McClure stated that that’s where we get caught. It says you have to have A, B and C, and if they have A, B and C and we ask for F, they say, where does it say they have to have F, and we don’t have anything that says they have to have F. That’s not the same as saying they can’t give it to us. We have to put it in our code. Mr. Thompson stated, put it in the code, or the code mentions an application package. Mr. Read stated that there has been at least one situation in which the sheet that’s submitted – at secondary – and there was a difference between the same sheet that was submitted at primary and what was submitted at secondary that nobody mentioned, a little obscure note that should have been there. As far as he’s concerned, he wants to see the total package because he wants to see if one of these guys changed a sheet between secondary and primary. Mr. McClure stated that they also talked about, on the application package, covenants – a full set at primary, some of the requirements that Mr. Detert has talked about as far as reciprocal attorney fee issue, a checklist for what’s required, the issue of IDEM – when do they have to go to IDEM and for what and what do they have to have back – and we’re going to add something to ours that says if they have to go to IDEM what we expect back at this point. Mr. Read stated that if any consultant is involved, we should have their complete report. Mr. McClure stated that that was addressed, and they talked a little bit about the traffic report and what we’d like to see on that in the future. Not all of it is ordinance; some of it is just internal rules of procedure, but he thinks the biggest thing that came out of the meeting, that there are times in these meetings that we just have to stop and make a motion to send it to Ground Rules to get us the proposed language so that we can review it. Mr. Read stated that on the standard open space note that we have, between the primary and the secondary there were two or three little words changed, and it had the effect of who owned it. Mr. Detert stated that Four Seasons has in their covenants that you can’t change the elevation of a lot by more than 2 feet; just some simple language like that. Mr. McClure stated that we have to put somewhere what the maximum elevation of the lot is. Commissioner Harper stated that one other thing he’s been thinking that we should do, when we have a meeting like this tonight and we have pictures of drainage problems and things like this, we should start a book of these because a picture is worth a thousand words and it might help with getting funding to correct it, and we should have what subdivision it’s in. There followed a discussion about some of the erosion problems at Tower Meadows. There being no further business, the meeting adjourned at 8:55 p.m.
Attest:\Robert W. Thompson Jr., AICP, Executive Director/County Planner |
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September 26, 2007