Plan Commission (PC)

Zionsville Plan Commission August 19, 2013 Call to Order Pledge of Allegiance In attendance: David Franz, Larry Jones, Larry Mitchell, Allan Rachles, Kevin Schiferl, Jay Parks. Wayne Haynes excused absence. Staff Attending: Wayne Delong and Carol Sparks Drake, attorney. Roll was taken. A quorum is present. Rachles If the clerk will call the roll? DeLong Mr. Franz? Franz Present. DeLong Mr. Haynes? Rachles He has an excused absence. DeLong Mr. Jones? Jones Present. DeLong Mr. Mitchell? Mitchell Present. DeLong Mr. Parks? Parks Present. DeLong Mr. Rachles? Rachles Present. DeLong Mr. Schiferl? Schiferl Present. Rachles You should have in your packet the July 15, 2013 minutes. If there are no additions or corrections, I’ll accept a motion to approve the minutes. Schiferl So moved. Rachles Is there a second? Mitchell Second. Rachles All in favor aye? Zionsville Plan Commission August 19, 2013 All Aye. Rachles Opposed no. The minutes are approved. Parks Note that I abstained because I was not present. Rachles Okay, so noted. And do we need to approve the Plan minutes that we – Drake Yes. Rachles As you know we had an executive session on Wal-Mart August 8, 2013. We need to approve the minutes of that meeting. Can I have a motion for that please? Mitchell So moved. Parks Second. Rachles All in favor aye? All Aye. Rachles Opposed? Schiferl Abstain. Rachles Yes, you were not present okay. New business. Before, we only have one thing on the docket, but before we start we are going to be mediating, involved in a mediation process with Wal-Mart sometime this fall or whenever the judge in Hamilton County sets it down. I need to appoint three members of this Commission to be involved in the mediation along with Pat Hess, our attorney, and so I’m going to appoint Larry Mitchell, Dave Franz, and Larry Jones and I’ve talked to all three. They accept and I’m going to ask Larry Mitchell to be the Chairman of that committee. The Docket 2013-14-DP Quail Run petition for development plan approval is going to be continued to September 16. The one item on our Agenda for tonight is Witham Hospital, 116th Street and Michigan Road. This is a request to grant a waiver of the Plan Commission rule requiring the one-year waiting period after an adverse decision on an application for a zone map change. In your packet you should have the request by Witham and I’ll ask their representative to come forward and make a presentation. Mr. Frandsen? Frandsen Thank you Mr. Chairman. Rachles Just give us your name and address for the record. Frandsen Good evening, my name is Kent Frandsen. My office address is 225 West Main Street, Lebanon. Rachles Kent, if you will why don’t you give Stan’s name and address in case he comes up and we don’t have to do that. Page 2 of 10 Zionsville Plan Commission August 19, 2013 Frandsen Stan why don’t you, Stan Evans with Realty Advisors who’s serving as the real estate consultant for Witham Hospital. Stan, give them your address. Evans It’s 22 East Washington Street, actually the company name is now RSE Realty. 22 East Washington Street, Indianapolis 46204. Rachles Okay, you may proceed. Frandsen Thank you. We’re here tonight on a somewhat unusual application. You probably don’t hear many of these. As you recall at your June meeting we appeared on a zone map change application for Witham Hospital. At that time the property was approximately 11 acres at the northeast corner of State Road 334, 116th Street and U.S. 421 and there was an unfavorable recommendation on the proposed zone map change at that time. It went before the Council in early August and they took no action on it, so by law it is deemed to have failed. Your rules, specifically Article 7, subpart 6 generally states that applicant who has had an adverse decision must wait one year before presenting a substantially similar application. The reasons for that are understandable. I initially was of the opinion that the Plan Commission action was not adverse action. It was merely a recommendation and that there was no adverse action until the action of the Council to, in effect, let it fail, but your Town Council attorney I think believed that there was adverse action by the Plan Commission. Maybe it was Mrs. Drake I’m not sure, maybe all of them. In any event we have filed a new application, not because we’re prejudging your decision, but because we needed to get, keep the ball rolling. We’re under significant pressure from the current owner. Our contract will expire fairly quickly. We’re hopeful we can get an extension, but we don’t know that, so we made a good faith decision to go ahead and file a new rezone application. If this Commission would not allow us to move forward I assume it will be withdrawn and the $1,300 we paid would hopefully be refunded to us, but we haven’t gone there yet. It’s our hope that you will exercise your discretion to allow this matter to move forward and continue on. My first position would be that this is not a substantially similar project. Why do I say that? Well, there’s three more parcels of land that are to be included with this application. The Gardener property on Sandy Lane, about 6/10 of an acre, the Kaiser property on Sandy Lane, about 1/3 acres and also the Durham property, which is at the corner of Sandy Lane and 421, would potentially be part of this project. We do have all three of those parcels under contract. The Durham property’s already zoned B1, so it really isn’t part of the rezone application, but it would be part of the project if the project would move forward. So the scope of the project changes from roughly 11 acres to a bit over 13 acres. We’re also in the process of relocating the line of demarcation between B0 and B1. It’s our plan to have more land in the B0 district than was originally proposed. So that will change the project a bit. We’re also working on further commitments with regard to the style, nature, size, shape, layout of the project, but we don’t have those done yet. So my first opinion and my, I think you could legally make the judgment that this is not a substantially similar project and therefore the one-year rule doesn’t apply. If you disagree with me on that I think you have the discretion under the rules to waive the rule and I think there’s good cause for doing so in this case. Page 3 of 10 Zionsville Plan Commission August 19, 2013 This is a public hospital of Boone County. This project was early in its infancy when this matter came before the Plan Commission two months ago. We worked diligently on trying to make this project move forward. We’re still working with staff and the neighbors to make this a viable project, one that will be an asset to the community. To impose a one-year rule under these circumstances will essentially kill the project for the foreseeable future and I’m not sure there’s any public good comes from that. So that is our application. We appreciate your consideration. Happy to answer any questions you might have. Rachles Thanks. Are there any members of the public who wish to come forth and render any comments on this docket number? Okay. Frandsen I did forget to mention that we did publish notice and served all the neighbors again with the notice of this request tonight. Rachles Wayne? DeLong Yeah, thank you. Staff received the timely filing of the waiver request. Staff also has the benefit of reviewing the new petition or having taken a peek at it as it is a matter of public record. Certainly when this petition was here for its first round of consideration the Plan Commission certainly was interested in hearing the details about site plan, traffic impact study, potential conceptual renderings and certainly having those in the public file for review. Certainly, there has been a change in the acreage. Staff would view it as a minor change. Certainly, we review that as a material issue, but that’s the request in front of you this evening. The timing of the project, technically the decision is still pending with the Town Council. The clock has started ticking for that 90-day clock the day that the matter was certified to the Town Council. The expiration of that 90 days if the Town Council does not render a decision one way or the other is September 16. That would be the expiration of the 90-day window when, in fact, if the Town Council never calls the matter up for consideration it would be deemed denied at that point in time, the first petition that was filed. Rachles Any comments, questions or discussion by members of the Plan Commission? Mitchell I would make one comment that I understand that this is an assemblage and the developer is purchasing many properties in this area that are contingent upon this decision one way or the other and so I’m inclined to grant the waiver so people can get on with their lives one way or the other. Rachles That was Commissioner Mitchell. Any other comments? Parks I just want to make sure that I understand the difference in opinion between the petitioner who said that the Town Council in effect took action in its meeting in August and the statement by Staff that said the Town Council has not taken action and therefore the next time it will take action or can take action would be roughly the 16th of September. At that point in time that’s when the, in effect, pocket veto would take place would be at the September 16, the 90 days from our submission of our negative recommendation to the Town Council during which time it needed to take action or it would be deemed to have been denied, which is Page 4 of 10 Zionsville Plan Commission August 19, 2013 the appropriate calendar. Has the Town Council actually made an up or down vote on this? DeLong The Town Council has not. This matter has been tabled for consecutive months by the Town Council and that the reasoning for that is simply to move the project forward with the idea that no consideration would be given to the matter and therefore the matter would just be denied by statute. The statute clearly states that the Plan Commission’s duty is to consider the matter and generate a recommendation. The Plan Commission generated the unfavorable recommendation. That recommendation was certified to the Town Council maybe two or three days after the Plan Commission, when Allan and I were able to get the documents together and sign them and so by statute the 90-day window is the window where the matter is officially heard, is officially approved, officially denied by the Town Council. They do have the option to never hear the matter and go with whatever the Plan Commission or go with the recommendation the Plan Commission articulated in its certification. Certified recommendation was unfavorable. That would be the recommendation that would stand if the Town Council never hears the matter and the only other opportunity the Town Council has to hear the matter now is Tuesday, September 4. I don’t have my calendar in front of me, but it’s the Monday or it’s the Tuesday after the Labor Day holiday. Parks Uh huh, okay. Frandsen Mr. Chairman let me weigh in. I mean I was at the meeting. They had a number of options as to how they could proceed. They chose and the Chairman of the Town Council made the request that we would table this indefinitely. This would essentially kill the project. It was not anticipated that it would be brought back up again. There was no discussion that it was going to be reconsidered at some future date and I believe the Council believed they were letting this die officially at the August 2 or 3 meeting and I don’t think they have any intention of revisiting, but I guess Mr. DeLong was here as well. I don’t think we’re disagreeing on what was said, but I certainly think it was their intention that they would take no action, which essentially because it was on the Agenda and they were going to take no action, which they said essentially means the application dies and that’s how it was left. Schiferl Well I have a motion then. It sounds really what we’re doing though is technically it’ll be September and it expires, so you’re sort of asking us prophylactically to waive the one-year waiting period and I don’t have an issue with that. I agree with what Larry stated earlier. I would move that in our discretion we waive the one-year waiting period, especially since there’s different metes and bounds that are going to be included within the new proposal as I understand it. Rachles Any other comments? Parks That was a motion. Schiferl That was my motion. Page 5 of 10 Zionsville Plan Commission August 19, 2013 Rachles Is there a second? Mitchell I’ll second. Rachles Any discussion? Jones I mean would this technically need to be a subject to action, I mean almost given the fact that it doesn’t really expire until September 16 would be, you know, potentially granting a waiver subject to. Schiferl I would accept the amendment, but that’s what I was trying to articulate. Subject to the Town Board taking no action by the expiration of 90-day period, I would move that we waive our one-year waiting period. Rachles Is there – Jones I guess I got a question though. Isn’t it the Town Council’s job to grant the waiver of the one-year period because ours is just a recommendation? Schiferl It’s our rules right Carol. It’s a Plan Commission rule? Drake It’s the Plan Commission’s rules, but I agree with Mr. Frandsen’s initial interpretation of them that, under Indiana Code 36-7-4-405 you, the Plan Commission, make recommendations on rezones. You make decisions favorable or adverse on development plans or similar items, so what you did on the rezone was make a recommendation only and the Rule that Mr. Frandsen referred to indicates that the body that makes the adverse decision by an official vote, in this case it’s the Town Council in my opinion, that makes the ultimate adverse decision, is the body that is to grant to them the waiver. The Rule actually refers to the Town Council, the Plan Commission, and the BZA in the same Rule. Rachles I have a question. Schiferl My only comment would be I don’t disagree with that, but it elevates form over function to a point that it is absurd because if you have a town body as we apparently have here who has determined not to take action on it there is no official action we’ve taken by fiat and a 90-day passage it expires, so. Drake But when it expires that will be an adverse decision because it will affirm the Plan Commission’s recommendation. Schiferl I have no issue with this body making a waiver of its rule of 90 days to consider a new petition. That was my motion. Rachles Is there a second? Mitchell Yes. Rachles Note that it is Mitchell. Page 6 of 10 Zionsville Plan Commission August 19, 2013 Rachles Further discussion? Mr. Frandsen if you can tell us, I think I’m aware that you are operating under time constraints on your option. Is that correct? Frandsen Yes, sir. Rachles And could you tell us how severe your time constraints are? Frandsen I would be happy to. Mr. Evans has that information and I think he’d be better to answer it than I. Evans We have a time line, an initial time line. It’s around the end of September for a substantial nonrefundable deposit with the seller to be able to have some additional time to close, so you know our goal is to try to be, have some decisions made before that time line. Rachles So if you did get a favorable ruling tonight you have a very limited amount of time left to be successful with your option. Evans We have some critical decision dates that cost a lot of money to continue, so I mean it would be our goal to be heard again in September by your body and hopefully have a favorable recommendation at that time. You know that obviously would give us some comfort level if we had a favorable recommendation to move forward even if we didn’t have Town Council approval by that point. Rachles That’s what I was going to ask you, if we did give you favorable recommendation how are you going to be able to get a Town Council to act favorably before your option expires? Evans Well again it would be a business decision from the hospital’s perspective to make a commitment to the contract. We wouldn’t be obligated to close, but we’d have to make a nonrefundable substantial deposit to the Dehaun folks to be able to extend the closing out a little bit further, so we would be exposed, but we wouldn’t be, you know, obligated to purchase. That would be a decision point we’d have to make from a business perspective. Jones I guess I’ve got a question too about the secondary proposal on this. Primarily I think we turned down the first one just because of a lack of detail and lack of specificity about what you were going to do and I mean are we going to see the kind of information we were – Evans Since the last time we were in front of you we have commissioned a fiscal impact study. We’re reworking the site plan. Obviously, we’re including additional acreage in it. We’ve gone ahead and completed a tree inventory to be able to understand what that might mean to the project and ability to do an actual tree preservation plan. We have also got building elevations that are in process right now, so we anticipate that we’ll have additional information. We’re also, as Kent indicated, we’re discussing with the hospital and in conjunction with the site plan looking at additional commitments we can make in terms of some building size limitations on the B1 portion of the property and/or some no build areas along there to try to soften up the impact on the hard corner. Page 7 of 10 Zionsville Plan Commission August 19, 2013 Rachles Further comments? Parks I think the one thing that I would be looking for if we move forward on this is a submission that has significantly more information about what was going to actually go on that property and how it’s going to be utilized and how it’s going to tie in then with that entry point that we’re trying to create at that intersection and so with that kind of a commitment from you I would be more inclined to be in favor of the motion that is being presented, but the onus is on you to present something that would – Evans I think we understand that. Parks That I would feel much more comfortable than what we did before. Evans I think we understand. Rachles And I would like to add a follow-up on that. I think that if we granted you the waiver tonight you have a lot more work to do to be successful next month because what you’ve submitted tonight there’s even some question in some people’s minds whether it even complies with our rules and so if you should get a waiver you need to come back in my opinion or you will go down in flames next month unless we see something a lot better than we’ve seen so far. Evans Okay. Rachles Do you understand that? Evans I believe I do. Jones I’ve got one more question. Rachles Go ahead. Jones It may be what they are not asking is for a waiver of more or less to be allowed to amend their previous submission and once again, Kevin, straighten me out. Schiferl That’s Carol. Drake No, it would be a new submission. That submission’s already gone through you and it’s sitting in front of the Town Council right now. This is will you allow us to come in with a new submission since there has been an adverse decision on that prior submission in less than a year. Rachles Any other comments? I think we have a motion on the floor. Could we rehear the motion again? Drake Kevin made a motion to waive the one-year waiting period subject to the Town Council taking no action on the matter that’s pending before them at their September meeting. Page 8 of 10 Zionsville Plan Commission August 19, 2013 Rachles I think we’ll have a roll call vote. DeLong Mr. Franz? Franz Aye. DeLong Mr. Haynes? Mr. Jones? Jones Yes. DeLong Mr. Mitchell? Mitchell Aye. DeLong Mr. Parks? Parks Aye. DeLong Mr. Rachles? Rachles Aye. DeLong Mr. Schiferl? Schiferl Aye. Rachles The motion is unanimously passed. You’re lucky because as of 15 minutes ago you probably didn’t have the votes to get this done. This Commission, because it’s Witham and because we have some faith that you might be able to come back with something better than you’ve done the last two times, we’re giving you one more shot, so don’t blow it. We have one further bit of business. Wayne will you cover Item 6 on the Agenda. DeLong Certainly. Next month we will be presenting to you an amendment to the fee schedule for building permits. This is something that’s not been touched in the zoning the best we can tell since 2001. The market has moved forward related to what the costs are to the Town for its services to the builders. We provide anywhere from two to eight inspections per building and all of that has a particular cost to it. We’re doing an analysis right now as to what those fees should be, but we do want to bring a new ordinance to you. I certainly plan on bringing that to the Town Council certainly subject to your review and forwarding. Its part of the zoning code, so by statute this would be a zoning code amendment ordinance. I’m sorry a state law point of view is that any change to a fee schedule requires a 90-day notice time from the time it’s heard by the Town Council until the time it’s adopted, so the earliest this would go into effect would be mid-January of 2014, but certainly getting started now. Rachles Okay. And we’ll be voting on this at the September meeting? DeLong That would be Staff's intention is to bring you something that you could vote on. Page 9 of 10 Zionsville Plan Commission August 19, 2013 Rachles Okay. Parks In that presentation you will be comparing it to fees that are in other areas around us, etc. DeLong Certainly. We have a fee comparison done for seven or eight different jurisdictions: Lebanon, Boone County, Fishers, Carmel, and Westfield. We can give you all that sorts of comparison as we are today versus where we would be with changes to our fee schedule. Parks Okay good, thank you. Rachles Any other business? Schiferl I would just like the minutes to reflect that every Commissioner wore red, white or blue. Rachles Okay. This meeting is now adjourned. Page 10 of 10