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Home My WebLink AboutCCM-12-07-98City of Carmel CARMEL CITY COUNCIL MEETING AGENDA MONDAY, DECEMBER 7, 1998 --7 P.M. COUNCIL CHAMBERS / CITY HALL / ONE CIVIC SQUARE MEETING CALLED TO ORDER 2. 3. 4. INVOCATION PLEDGE OF ALLEGIANCE RECOGNITION OF CITY EMPLOYEES AND OUTSTANDING CITIZENS APPROVAL OF MINUTES a. November 16, 1998, Regular Meeting RECOGNITION OF PERSONS WItO WISH TO ADDRESS THE COUNCIL COUNCIL, MAYORAL AND CLERK-TREASURER COMMENTS/OBSERVATIONS ACTION ON MAYORAL VETOES CLAIMS · Payroll · General Claims · Retirement COMMITTEE REPORTS OLD BUSINESS a. Permission to Use Additional Funds from EMS and Fire Capital Fund ($300.000); Chief Douglas Callahan, Fire Department b. Second Reading Ordinance Z-328/An Ordinance Amending Zoning Ordinance Z-160, As Amended (Rezone of Meridian Plastic Surgery Center, P.C. t~om S-2 to B-5) *published ir~ The Daily Ledger on November 4, 1998 c. Second Reading Ordinance Z-327/An Ordinance to Promote the Preservation of Open Space in Residential Neighborhoods in Conformity with the 2020 Vision Comprehensive Plan (Chapters 5.0, 11.0 and Section 26.2 of the Zoning Ordinance); Jay Dorman, Chairman of the Residential Open Space Ordinance Task Force *published i7~ The Daily Ledger on November 4, 1998 d. Second Reading Ordinance Z-329/An Ordinance to Promote the Preservation of Open Space in Residential Neighborhoods in Conformity with the 2020 Vision Comprehensive Plan (Sectiolq 6.1 and 6.5 and Chapter 7 of the Zoning Ordinance); Jay Dorman, Chairman of the Residential Open Space Ordinance Task Force *]~ublished i~ The Daily Ledger on November 4, 1998 ONE CIVIC SQUARE CARMEL. INDIANA 46032 317/571-2400 11. PUBLIC HEARING a. First Reading Ordinance Z-330/An Ordinance Establishing the WestClay Village Planned Unit Development District; David Warshauer, Brenwick Development Co., Inc. *?ublished iz~ The Daily Ledger on November 21, 1998 b. Resolution CC-11-16-98-01/A Resolution to Effect a Transfer of $555,000 from the Park Recreation Fund to the Park Non-Reverting Capital Fund; Randy Auler, Director of Carmel/Clay Parks and Recreation *published in The Daily Ledger on November 17, 1998 12. NEW a. 13. 14. BUSINESS Resolution CC-11-16-98-02/Resolution Supporting Acquisition of Land Located at Approximatcly1300 Rohrer Road for a Northern Trailhead for the Morion Trail; Randy Auler, Director of Carmel/Clay Parks and Recreation Resolution CC-I 2-07-98-04/Resolution Supporting Use of the Park Impact Fee and Acquisition of Land Located at 11801 River Road; Randy Auler, Director of Carmel/Clay Parks and Recreation First Reading Ordinance D-1401-98/An Ordinance Enacting and Adopting a Supplement to the Carmel City Code; Clerk-Treasurer Diana L. Cordray First Reading Ordinance D-1402-98/An Ordinance Amending Section 9-171 of the Carmel Code (Reduction of Sewer Fees for Certain Classifications of Users); Utilities Manager John Duffy First Reading Ordinance A-84/Water Utility Budget; Utilities Manager John Dully First Reading Ordinance S-65/Sewer Utility Budget; Utilities Manager John Dully Resolution CC-12-07-98-01/Transfer of Funds by the Department of Administration; $5,000 from Line Item #100, Full Time Wages, to Line Item #419-60, Moving Expenses Resolution CC-12-07-98-02/Transfer of Funds by the City Court; $670 from Various Line Items into Line Item #632.01 ($500), Computer Hardware, and into Line Item #630, Furniture and Fixtures ($170) Resolution CC-12-07-98-03/Resolution Approving Payment of Construction Costs for Hazel Dell Parkway ($551,202.74); Kate Boyle-Weese, City Engineer Resolntion CC-I 2-07-98-05/Transfer of Funds by the Department of Law; $40,705 from Various Line items into Line Item #430-53004, Equipment Rental Lease ($1,760); Line Item #420-30200, Office Supplies ($70); Line Item #430-40000, Legal Fees ($38,875) OTHER BUSINESS ANNOUNCEMENTS 15. EXECUTION OF DOCUMENTS 16. ADJOURNMENT CARMEL CITY COUNCIL MEETING MINUTES MONDAY, DECEMBER 7, 1998 --7 P.M. COUNCIL CHAMBERS / CITY HALL / ONE CIVIC SQUARE MEMBERS PRESENT: Mayor James Brainard; Council President Robert Battreall; Councilors Kevin Kirby, Jim Miller, Norm Rundle, Luci Snyder, Ron Carter and Billy Walker. Clerk-Treasurer Diana Cordray and Deputy Clerk Rebecca Martin also attended. Mayor Brainard called the meeting to order at 7:02 p.m. Councilor Miller gave the invocation. Mayor Brainard led the Pledge of Allegiance. APPROVAL OF MINUTES: Councilor Snyder moved to approve the minutes. Councilor Battreall seconded. Councilor Rundle stated the dates of the adjusted council meetings listed under Committee Reports on Page 2 of the minutes were incorrect. He moved to change the dates to read: January 19, February 16, July 6, September 7 and September 21. Councilor Snyder seconded. The amendment was approved 6-0. The minutes, as amended, were approved 6-0. Councilor Kirby arrived at the meeting. Mayor Brainard stated that citizens who wanted to speak about items other than those listed as public heatings should do so at this time.' RECOGNITION OF PERSONS WHO WISH TO ADDRESS THE COUNCIL: Mary_ Myk_vta. 49 Granite Court, stated the Carmel Clay Parks Board should talk to people who live along the Morion Trail before appropriating money to buy land for the northern trallhead. Russell Macdonald, 10905 Westfield Boulevard, stated he was concerned that the wording of the Residential Open Space Ordinances would permit trails to be built on his property. Mayor Brainard explained that citizens wanting to comment on the Open Space Ordinances needed to do so at this time because the public heating for them had ended at the previous meeting. Mark Rattermam!., president of the Clay West Information Council, stated residents in Clay West had minor concerns with the Open Space Ordinances, but otherwise supported them. Steve Lains, Builders Association of Greater Indianapolis, thanked the council for allowing BAGI to be involved in developing the Open Space Ordinances. He stated he wanted to make his organization's concerns with the ordinances part of the official record (Exhibit A). Jay Dorman, Carmel Clay Plan Commission member, asked Mike Hollibaugh of DOCS to hand councilors a summary of all written comments received on the Open Space Ordinances since the previous council meeting. Mr. Dorman stated that, where feasible, all requested changes had been incorporated into the ordinances. He asked the council to approve the ordinances tonight. '-- The mayor explained that anyone wishing to speak about anything other than the items listed for public hearing should do so at this time. Ron Smith, 1133 Burnham Woods Trail, wanted to know if Ordinance Z-329 would affect land that already had been platted. Bob Battreall, council member, stepped from behind the dias to address the council. He stated he was concerned because the City had put speed humps on 98th Street to control speeding even though the council didn't want speed humps used unless criteria were in place specifying when they were needed. He stated he wanted the City to draft an ordinance to regulate their use. The mayor again explained that anyone wishing to speak about anything other than the items listed for public hearing should do so at this time. Joseph Jeffs, 10660 Highland Drive, stated the City was trying to purchase some of his property for the Morion Trail but had not offered him what his property was worth. COUNCIL. MAYORAL AND CLERK-TREASURER COMMENTS/OBSERVATIONS: Mayor Brainard told Mr. Jells he would look into his concern tomorrow morning. The mayor stated the City had placed the speed humps on 98th Street to test their effectiveness. Councilor Kirby stated he wanted the mayor to provide the council with the criteria the City was using to determine when and where to use speed humps. Councilors discussed whether using speed humps should be regulated by ordinance. Councilor Carter responded to Mr. Macdonald and Mr. Smith's concerns about the Open Space Ordinances. He stated these ordinances were for new, not existing, development. Councilor Kirby commended the mayor for Hazel Dell Parkway and 96th Street. He explained that 50 county highway supervisors and engineers attending a local conference had taken bus trips on these roads and were impressed by them. Councilor Carter discussed with City Attorney Douglas C. Haney how much money property owners had been offered for right-of-way for the Munon Trail. Mr. Haney stated all land owners along the i, *.orion had been offered $23,000 per acre for their land. He explained the actual offers may have been smaller, depending on the size of the land, but all offers were equivalent to $23,000 per acre. CLAIMS: Councilor Snyder moved to approve claims in the amounts of $217,597.66, $25,073.50 and $802,646.90. Councilor Rundle seconded. Claims were approved 7-0. COMMITTEE REPORTS: Councilor Battreall reported to the council about the Y2K Committee meeting. Councilors Snyder and Battreall discussed Time Warner Cable's recent service changes. OLD BUSINESS: Mayor Brainard announced Fire Chief Doug Callahan's request for permission to use additional funds from the EMS and Fire Capital Fund ($300.000) for the purchase of two rescue squads. Mayor Brainard explained that Chief Callahan had saved $10,000 by more thoroughly advertising the vehicles since he first came before the council with this request. Councilors Carter and Rundle commended the chief for his due diligence. Councilor Rundle explained the chief would be spending about $730,000 to replace two rescue squads, one of which was only three years old. He stated that since the purchase of the one rescue squad three years ago, the fire department had spent $17,000 in repairs on it. Mayor Brainard explained the City was not using taxpayer money to purchase the squads, but was spending money from the EMS and Fire Capital Fund, which consisted of user fees. He stated he anticipated the City would never have to spend taxpayer money again to pay for rescue equipment because of this fund. Councilor Kirby stated the council should have approved the chief's request to spend this money the first time he asked. Chief Callahan said the squads would be delivered in about 10 months and would be at Stations #1 and #2. The request to spend an additional $300.000 from the EMS and Fire Capital Fund was approved 7-0. Mayor Brainard announced Ordinance Z-328. an ordinance rezoning Meridian Plastic Surgery_ Center from S-2 to B-5. an amendment to Zoning Ordinance Z-160. As Amended. No discussion occurred. Ordinance Z-328 was approved 7-0. Mayor Brainard suggested the council address some perfunctory items under new business before continuing with the more lengthy items on the agenda. Councilor Battreall moved to do as recommended. Councilor Miller seconded. The motion was approved 7-0. NEW BUSINESS: Councilor Battreall moved to approve Resolution CC-11-16-98-02. a resolution supporting acquisition of land at 1306 Rohrer Road for a northern trailhead for the Morion Trail. Councilor Carter seconded and called for the question. Resolution CC-11-16-98-02 was anproved 7-0. Councilor Battreall moved to approve Resolution CC-12-07-98-04. a resolution supporting use of the park impact fee and acquisition of land at 11801 River Road. Councilor Walker seconded. Resolution CC-12-07-98-04 was approved 7-0. Councilor Carter moved to introduce Ordinance D-1401-98: an ordinance enacting and adopting a supplement to the Carmel City Code. Councilor Walker seconded. Ordinance D-1401-98 was carried over to the next meeting. Mayor Brainard handed the gavel to Council President Battreall and stepped to the podium to address the council about Ordinance D-1002-98. an ordinance amending Section 9-171 of the Carmel City Code (Sewer Rate). The mayor explained this ordinance would decrease the sewer rate 10 percent to a rate slightly lower than the that charged in 1982. Mayor Brainard read information from a financial report on the Sewer Utility put together b~ Crowe Chizek accounting firm. Ordinance D-1402-98 was carried over to the next meeting for public hearing and second reading. Councilor Battreall returned the gavel to the mayor. Board Member Walker moved to introduce Ordinance A-84. the Water Utility budget. Councilor Battreall seconded. Utilities Director John Duffy stated the budget had increased 4.08 percent because of inflation and growth. Ordinance A-84 was carried over to the next meeting. Board Member Walker moved to introduce Ordinance S-65. the Sewer Utility budget. Councilor Battreall seconded. Mr. Duffy stated the budget had increased 0.40 percent and included the rate decrease. Ordinance 8-65 was carded over to the next meeting. Councilor Kirby recommended the council return to the regular meeting format so citizens waiting for public hearings didn't have to sit through any more perfunctory business. Councilor Walker seconded. The council agreed. ~: Mayor Brainard stated the following two ordinances had been introduced into business at the last meeting and could be discussed simultaneously: 1) Ordinance Z-327. an ordinance to promote the preservation of open space in residential neighborhoods in conformity with the 2020 Vision Comprehensive Plan (Chapters 5.0. 11.0 and Section 26.2 of the Zoning Ordinance) 2) Ordinance Z-329. an ordinance to promote the preservation of open space in residential neighborhoods in conformity with the 2020 Vision Comnrehensive Plan (Sections 6.1 and 6.5 and Chapter 7 of the Zoning Ordinance). Councilors Kirby, Battreall, Miller and Rundle explained the council had just received several recommended changes to the ordinances this evening from the Residential Open Space Task Force Chairman Jay Dorman. They stated this short notice did not provide them enough time to review the changes and make a proper decision at this meeting. Councilor Carter stated that 22 meetings had been held in the last 18 months to develop these ordinances and that the council should vote on the ordinances tonight. He explained the council could approve them as is, with the understanding the ordinances would need amended in the near future. Councilor Carter stated that if the council didn't approve the ordinances tonight, they may never resurface or might be changed drastically. Councilor Snyder criticized Mike Hollibaugh of DOCS for not notifying interested parties that these ordinances were being considered by council. Councilor Rundle moved to table the ordinances until the January 4, 1999, council meeting. Councilor Snydcr seconded. Councilors continued to discuss the ordinances. Mayor Brainard asked Councilor Carter, the council's parliamentarian, if Mr. Dorman could be recognized. The council agreed he could not because a motion was on the floor. Ordinances Z-327 and Z~329 were tabled 5-2 until the January_ 4. 1999. cot ncil meeting. Councilors Carter and Walker voted no. Councilors made several more comments regarding these ordinances. The council recessed for seven minutes at 8:29 p.m. PUBLIC HEARING: Mayor Brainard explained the council's public hearing procedure and announced Ordinance Z-330. an ordinance estab!i~hlng the WestClay Village Planned Unit Development District (P.U.D.). George Sweet of Brenwick Development explained the project and talked about the events that had occurred since Brenwick first presented the Village of WestClay to the Carmel Clay Plan Commission. He explained the project had caused citizens and elected officials to focus on the need for road improvements in western Clay Township. He explained why the project was a good idea and talked about how it would fit in with the area around it. Brenwick showed a 10-minute film on the Village. Margie Wheeler of Brenwick explained the Village was created to be like traditional neighborhoods that existed before the 1960's. She described the proposed architecture and design and stated why the Village would succeed. David Warshauer, executive vice-president of Brenwick, explained that after extensive review by the plan commission and Department of Community Services, Brenwick had made several changes to the original plans for the Village. He stated the company had reduced the permitted density, the amount of commercial space and the number of apartments and had made changes to accommodate the thoroughfare plan. He stated Brenwick also had imposed a voluntary traffic impact assessment of $1,280,000 to pay for roads warranted by the project. He stated that Brenwick, the plan commission and the Hamilton County Highway Department had completed traffic studies of the proposed project area, and all had found that traffic was already a problem in western Clay Township. He stated that development in Westfield and the Meridian Corridor was going to add to the problem. Mr. Warshauer said the plan commission's traffic engineer indicated the roads would need improved whether the Village was built or not. Mr. Warshauer also stated he believed development in western Clay Township would help expedite road improvements, and that there would be time to make these improvements as the Village was built. He explained the county commissioners and county councilors had agreed to work as fast as possible to improve the roads in western Clay Township. Mayor Brainard explained that citizens who wanted to speak to the council about the Village could do so at this time, whether or not they had signed the blue Request to Speak cards. He asked citizens not to repeat a comment or point someone else already had discussed. They mayor opened the public heating at 9:15 p.m. Brian ~, Woodhaven Homeowners Association, handed items to councilors (Exkibit B) and stated residents needed more commitment from Brenwick to help improve the roads in Clay Township. Doc Mutchmore, Deerfield Civic League, asked the council to vote against the Village and stated the City should post notice of public hearings in the weekly Carmel News-Tribune newspaper as well as the Daily Ledger. Mark Rattermann. president of Crooked Stick Homeowners Association and the Clay West Information Council, stated the Village was a fine development but was in the wrong location. He stated the project should be built closer to a major thoroughfare and pointed out that part of Township Line Road, which would lead in and out of the development, was not in Hamilton County's jurisdiction. Greg Zubek, Claridge Farm, stated that many times in Ordinance Z-330, Brenwick stated it "declared and intended" to develop certain parks and other structures as part of the Village, but '%vas not obligated" to do so. He stated the council needed to consider two statutes when deciding whether to approve the Village: 1) When the legislative body adopts a zoning ordinance, the body shall act for the purposes of lessening or avoiding congestion in pubhc ways, and 2) The body shall act for the purpose of promoting the public health, safety, comfort, morals, convenience and general welfare. Mr. Zubek also made reference to a December 5 newspaper article claiming that two councilors already had decided in favor of the Village, and asked councilors to reserve judgment on the project until they had heard all remonstrators. Ron Houck, Clay West Information Council, stated there were several inconsistencies with the Village and parts of the comprehensive plan. He read Section 1.1.6 and stated the Village, consisting of 681 acres, was larger than an enclave as defined by Webster's Dictionary, and that the intensity of this development would adversely affect traffic congestion. Mr. Houck then read Section 1.3.1 of the comprehensive plan and stated thc Village would adversely affect the character of the area. He stated the Village also conflicted with Section 1.5.2 because it would cause traffic to increase in neighboring subdivisions. Rick Sharp, Carmel Clay Plan Commission, stated the Village would add more traffic to already congested roads. He stated the county has listed western Clay Township road improvements as one of its top priorities, but has no money to pay for them at this time. He mentioned several recent fatal automobile accidents in western Clay Township and asked the council to vote against the project. Pat Rice, Carmel Clay Plan Commission, stated the plan commission's negative recommendation of the project to council represented a number of serious concerns and asked the council to honor the plan commission's vote. John Harkey, Spring Mill Streams Neighborhood Association, stated the Village would add too much traffic to already crowded roads and would decrease the quality of life for western Clay Township residents. Isaiah Kuperstein, Claridge Farm, stated that in a recent plan commission meeting, a commission member asked how an 18-wheeler delivering products to retailers in the Village would be able to make the tums on the Village's streets. He asked the council to vote against the project. Judy Hagan. Carmel Clay Park Board President/Township Trustee-Elect, stated she was concerned that closing Hoover Road would prevent emergency vehicles from quickly accessing homes. She asked councilors to consider the long-term safety plan of western Clay Township. Sharon Clark, Hamilton County Commissioner and Cannel resident, stated the county would have its public heating on improving intersections in western Clay Township in January. She stated the earliest the county could start construction on Towne Road would be the fall of 1999. She asked the council to uphold the trust embodied in the joinder agreements and to help the community work together again. Frank Franks, Clay West Information Council, stated the proposed Village was in a bad location and did not include public service facilities, such as a police station and library. He passed out literature, The New Ruralist, from renowned plmmer Randall Arendt (Exhibit C) and suggested the council should get his input. Mr. Franks stated several actions the council could take regarding the Village: 1) do nothing and after 90 days the plan commission's negative recommendation would become law, 2) set up a special committee to work out a compromise, or 3) vote against the project. Jim Dillon, Clay Township Board Member, stated he couldn't name sev~n people in favor of the project and asked councilors not to rain the good job they did when they approved the comprehensive plan. Mr. Dillon stated the council may not be able to repair the rift between the City of Carmel and western Clay Township if it approved this ordinance. He also commented that the roads could not support the traffic this project would add to the area. Tom Harleman. 11080 Willowmere Drive, addressed Councilor Snyder's suggestion that if residents didn't want land to be developed, they could buy it. He stated that this wouldn't work because the City would eventually just take it away. Barbara Williams, 10670 Highland Drive, stated that traffic problems were bad and would get worse as a result of the Monon Trail. She asked the council to hear the citizcms who spoke to them this evening. Seeing no one else who wished to speak, the mayor closed the public hearing at 10:55 p.m. He explained this ordinance would be carried over to the next meeting on January 4, 1999, at 7:30 p.m. Councilor Walker stated he was offended that the paper printed how he would vote on the issue and disliked the exaggeration used by some citizens. He stated he agreed with Mr. Dillon that the community has to work together. Councilor Snyder stated the comprehensive plan allows for an innovative P.U.D., but agreed the roads in western Clay Township needed to be improved. She stated she hoped everyone worked together so this was a gain for the commnnity, qd~,*~kl~-~,L~r- ~. Councilor Miller stated ke hoped the roads in western Clay Township could be improved without losing the rural feel. Councilor Carter stated the county didn't appear to have committed to being financially able to fix the traffic problems in western Clay Township. He asked Sharon Clark to explain. Ms. Clark stated the county couldn't commit to anything until it received numbers from the preliminary design, and that the public heating on the issue should occur in January. Ms. Clark explained the commissioners committed in March to working on the congestion in western Clay Township, but at this time the county had no money to pay for the road improvements, which could cost $10 million. She stated the County Commission would support bonding to get the intersections completed. Mayor Brainard and Councilor Carter discussed the costs of building an underpass at US 31 and 131st Street. Ordinance Z-330 was carded over to the next meeting. Councilor Battreall moved to introduce Resolution CC-11-16-98-01. a resolution to effect a transfer of $555.000 from the Park Recreation Fund to the Park Non-Reverting Capital Fund. Councilor Kirby seconded. Mayor Brainard opened the public hearing at 11:13 p.m. Ron Smith, 1133 Burnham Woods Trail, stated he was not in favor of the Monon Trail and spoke against Carmel's practice of taking land for recreation uses. Tom Harleman, 11808 Willown'Je~ce Drive, stated the township board passed a similar resolution to move the $555,000. He explained the township had attached the stipulation that all land must be acquired for the Monon before the money could be spent. Seeing no one else who wished to speak, the mayor closed the public hearing at 11:16 p.m. Councilor Snyder asked if there was a guarantee this money could be spent only on the Monon. Ms. Hagan, Park Board President, stated the council could add that as a condition to its approval of this resolution. Councilor Carter asked if the money could be removed once it was transferred into the non- reverting fund. Ms. Hagan stated that if the money was not spent in 1999, it would need to be appropriated like all other funds. She stated the park board could move the money to another part of the budget and opt not to construct the Monon. Councilor Carter stated the Monon Trail could be constructed through the BPW fired if needed. Resolution CC-11-16-98-01 was approved 7-0. NEW BUSINESS: Councilor Battreall moved to approve Resolution CC-12-07-98-01. transfer of funds by the Department of Artmini~tration: $5.000 from Line Item #100. Full Time Wages. to Line Item #419-60. Moving Expenses. Councilor Miller seconded. Resolution CC-12-07-98-01 was approved 6-1. Councilor Walker voted no. Councilor Battreall moved to approve Resolution CC-12-07-98-02. transfer of funds by the City_ Court: $670 from Various Line Items to Line Item #632.01 ($500). Computer Hardware. and to Line Item #630 ($170). Furniture and Fixtures. Councilor Kirby seconded. Resolution CC-12-07-98-02 was approved 7- Councilor Walker moved to approve Resolution CC-12-07-98-03, p a_wnent of construction costs for Hazel Dell Parkway ($551.202.74). Councilor Carter seconded. Resolution CC-12-07-98-03 was approved 7-0. Mayor Brainard explained some of the costs the Department of Law incurred this year. Councilor Carter moved to approve Resolution CC-12-07-98-05. transfer of funds by the Department of Law: $40.705 from Various Line Items to Line Item #430-53004. Equipment Rental Lease ($1.760): Line Item #420- 30200. Office Su_nplies ($70): and Line Item #430-40000. Legal Fees ($38,875). Councilor Battreall seconded. Resolution CC-12-07-98-05 was approved 7-0. OTHER: Councilor Battreall talked about several items he wanted next year's council president to address. Councilor Kirby moved at 11:27 p.m. to adjourn the meeting atler signing documents. Councilor Snyder seconded. The motion was approved 7-0. RespeCtfully submitte~d, z: Clerk-Treasurer Diana L. Cordra,/~,~AMC Attest:. ,~ ~.- , Clerk-Treasurer Diana L. Cordr~IAMC /~yor james Brainard RECEiVF'D DEC 0 -- MMER & BARNARD ATTORNEYS AT LAW' PC December 4, 1998 Edward W. Harris 517/630-5904 Via Hand Delivery Mr. Kevin Kirby, President Carmel City Council 1 Civic Square Carmel, IN 46032 Re: Proposed "Open Space" Zoning Ordinance and Subdivision Ordinance Amendments Dear Mr. Kirby: As counsel to the Legal Defense Fund of the Indiana Builders Association, we are writing to bring to your attention concerns with the legality ora number of provisions of the proposed "Open Space" Zoning Ordinance and Subdivision Ordinance Amendments (the "Amendments"),~ which we understand will be voted upon by the Carmel City Council next week. First, as recently articulated by the Indiana Court of Appeals, the basic premise against which any land use regulation must be tested is that Our system of law favors the free use of land. Zoning regulations which inhibit the use of real property are strictly construed because they are in derogation of the common law. Cooper v. CaIandro, 581 N.E.2d 443, 447 (Ind. Ct. App. 1991) (citation omitted). By requiring' developers to reserve as much as 30% of the land in a subdivision as "open space," over and above the open space that will exist on each individual building lot, and by decreasing the permissible density of housing, the Amendments run afoul of this basic premise.2 As you know, the permissible ~Citations in this letter to the Amendments are to the version of these Amendments dated November 9, 1998 transmitted by Mike Hollibaugh of the Carmel Department of Community Services to Jan Hope, Director of Governmental Affairs for the Builders Association of Greater Indianapolis, Inc. :We are a~vaxe that the Amendments include a purported "Density Incentive" -- ifa developer exceeds ~he "standard Open Space Reqmremen s, he may slightly increase the density of is a ruse development of the remaining lan . (Amendments, p. 37, § 7.2.) In fact, this incentive because the modest economic benefit of the increased permissible density is more than offset by the (continued...) ~6 4000 Bank One Tower · 111 blonuraent Circle. P.O. Box 4q3 5 · Indianapoh$. Ind'ana 46244-0565 Telephone 317/630-4000 · Fax 317/236-9802 Mr. Kevin Kirby, President December 4, 1998 Page 2 density of residentiaI development in Carmel was recently lowered from 1.6 lots per acre to 1.0 lots · " en per acre. The cumulative effect of this recent change in density regulation and the proposed Op Space" Amendments, if they are enacted, will be to make future residential development in Carmel/Clay Township prohibitively expensive, and to keep out low and moderate income housing. It is reasonable to wonder if exclusion of the low and moderate income families who live in such housing is, in fact, the motivation behind the Amendments. In addition, specific provisions of the Amendments will make certain land virtually unmarketable. For example, the Amendments prohibit a developer from clearing 50% of any land that is presently "scrub woodland." (Amendments, p. 40, § 7.7.D.7.) We doubt that any developer. will purchase a tract of land with such a prohibition in place. And we question whether Carmel residents who presently own tracts of scrub woodland realize that buried within these proposed Amendments is a regulation that may make it impossible for them to sell their land for anything close to its tree market value. Second, the land use restrictions embodied in the Amendments, because they will likely have a seyere economic impact on lando,~ners, appear to constitute takings for which compensation is due under the Fifth Amendment to the United States Constitution. Three factors articulated by the United States Supreme Court in Penn Central Transportation Corp. v. City of New York, 438 U.S. 104 (1978), point to that conclusion. First, the Amendments thwart the reasonable investment- backed expectations of the lando~xuaers that they ~5.11 be entitled to put their property to economically viable uses. Second, the Amendments' significantly increased open space requirements as well as other affirmative requirements placed on developers v,5.11 have a dramatic negative effect on the cost of developing certain property, and hence, on the market value of that property. For example, in City ofEvans,,'ille v. Reis Tire Sales, Inc., 333 N.E.2d 800 (1975), the Indiana Court of Appeals held that a zoning ordinance, because it rendered the permlssible development of certain property economically unviable, effected an unconstitutional taking. Finally, the character of the regulatory action points to an unconstitutional taking. The preservation of open space for the benefit of all Carmel's residents is a laudable goal. However, the takings clause of the Fifth Amendment bars the "Government from forcing some people alone (in this case, certain landowners) to bear public burdens which, in all fairness and justice, should be borne by the public as a whole." Armstrong v. United States, 364 U.S. 40, 49 (1960). Although land can be regulated to a certain extent, regulations that go too far -- as we believe these regulations do -- constitute a taking. See · " 5 Pennsylvania Coal Co. v. Mahon, 260 U.S. ~93, 41 (1922). 2(...continued) economic losses resulting from the open space and the onerous and costly requirements for defining and maintaining that open space. SOMMER&BAPdqARD Mr. Kevin Kirby, President December 4, 1998 Page 3 A third fundamental fia~v of the Amendments is that they impose burdens on new development that were never imposed on existing development, not because of any specific negative impact of the new development, but simply for some amorphous community "values" and to make up for past development that was not so restricted. (See, e.g., Notes of Open Space Task Force Meeting, Aug. 2t, 1997, that Amendments are aimed at "Preserv[ing] natural features remaining" and "Allo~ving traditional (Carmel-Style) development," attached as Support Materials to Nov. 1998 Amendments (emphasis added).) It is a violation of the Equal Protection Clause of the United States Constitution to impose such burdens on new development without similarly burdening existing property owners. See, e.g., Building Indus. Ass 'n of Cleveland v. City of Westlake, 660 N.E.2d 501 (Ohio Ct. App. 1995). For example, as mentioned above, a developer is prohibited from clearing 50% of any land that is scrub woodland (and 30% of"young woodlands"). (Amendments, p. 40, § 7.7.D.6,7.) Yet a property owner who is not a developer can freely bulldoze and cut down every last tree on his property if he so desires. Besides being utterly illogical, such a provision is an equal protection violation. There are other constitutional infirmities with the Amendments as well. It is not clear what is meant by the prohibition on development in a 100 foot wide "buffer strip" along the White River in order "to maintain or improve water and habitat quality" along the river, which the Amendments call "a significant recreation Corridor." (Amendments, p. 41, § 7.7.I.) Based on comments atthe Plan Commission meetings when this provision was discussed, what is envisioned here is land for a public footpath or trail along the riverbank. If, in fact, this provision amounts to a requirement that developers of land along the river must grant an easement for a public trail, it is a "taking" of private property for public use without just compensation in violation of the Takings Clause of the United States Constitution. As the United States Supreme Court has made clear, a municipality may not require such a dedication as a condition of development unless it has engaged in an individualized analysis to demonstrate that the dedication requirement is "roughly proportional" to the impact of the proposed development on a legitimate public interest. According to the Court: No precise mathematical calculation is required, but the city must make some sort of individualized determination that the required dedication is related both in nature and extent to the impact of the proposed development. Dolan v. City of Tigard, 512 U.S. 374, 391 (1994). In the Dolan case, the Supreme Court approvingly cited a Nebraska court, xvhich explained: A city may not, under the guise of the police power, require a property owner to dedicate private property for some furore public purpose as a condition of obtaining a building permit without paying the property o~vner just compensation, when the SOMMER& BARNAI~.D Mr. Kevin Kirby, President December 4, 1998 Page 4 requested dedicated property is to be placed in a land bank for future use by the city and such future use is not directly occasioned by the construction sought to be permitted. Simpson v. City of North Platte, 292 N.W.2d 297, 302 (Neb. 1980). From this perspective, the prohibition here on development in the "White Pdver buffer strip" seems aimed at a generalized future public use, and the individualized analysis required under Dolan of the impact if any of a specific project is noticeably lacking. In addition, Indiana law is quite explicit that subdivision ordinances must contain '"concrete. standards'" that provide '"fair warning as to ~vhat the local plan commission would consider when reviewing a preliminary plat.'" Brant v. Custom Design Constructors Corp., 677 N.E.2d 92, 96 (Ind. Ct. App. 1997) (quoting Burrell v. Lake County Plan Corem 'n, 624 N.E.2d 526, 530 (Ind. Ct. App. 1993), trans, denied March 8, 1994). According to the Indiana Court of Appeals, the language of ordinances must be "of sufficient specificity to provide the public fair notice as to what will be required for any given parcel of land to be subdivided." Id. at 99. Again, the Open Space Amendments fall short. For example, the Amendments require that a xwitten "evaluation of the tract's woodlands" must be included in a plat application, and that this evaluation "shall be undertaken by an arborist, landscape architect, horticulturist or another qualified professional, acceptable to the municipality." (Amendments, p. 41, § 7.7.K.) How is a developer to know whether a specific individual will be "acceptable to the municipality"? Similarly, the Amendments permit a developer to transfer open space land to "a private non-profit conservation organization," but only if "It]he conservation organization is acceptable to the Commission..." and only if a "maintenance agreement acceptable to the Commission is established between the owner and the organization." (Amendments, p. 45, § 7.12.A.4.) Such provisions are neither concrete nor specific, but grant the Commission unbridled discretion to approve or disapprove of conservation organizations and maintenance agreements without any discernible standards. The above quoted sections are just a few examples of how burdensome and illogical many of the details of the Amendments are. Indeed, future developers now must hire an "acceptable" horticulturist to prepare a voluminous report detailing all the species of vegetation on a tract of land and including an ecological analysis. (Amendments, p. 41, § 7.7.K.) Ifa developer plans to have common facilities run by a homeo,~'aers' association, the Amendments require that the homeowners' association be established and operating before any homes are sold. (Amendment, p. 45, § 7.12.A.3.) We are still trying to figure out how one can have an "operating" homeowners' association before there are any homeo~vners. The Amendments require a developer to incorporate in his preliminary plan submission a description of"the means for funding the maintenance of the project open space and operation of any common facilities on an on-going basis," including "the $OMMER& BAI~XlARD Mr. Kevin Kirby, President December 4, 1998 Page 5 means for funding long-rerm capital improvements as well as regular yearly operating and maintenance costs." (Amendments, p. 46, § 7.13.B.3.) It is incomprehensible how or why a developer of a subdivision who turns over open space and common areas to a homeowners' associati~m must predict future needs and funding to meet those needs, apparently in perpetuity. And we surmise that if any council-person were required to provide such future financial information to government as a condition of being permitted to operate a business, he or she would howl in protest. The Amendments even specify that open space must be landscaped with plants "adapted to central Indiana's growing conditions .... "(Amendments, p. 38, § 7.6.D.) Presumably, in the future, ifa homeowners' association wanted to replace dead trees in an open space area, it would have to seek the blessing of the Plan Commission on the species of tree selected. In general, because of onerous, burdensome, unreasonable, and unnecessary details like these, the Amendments smack of micro-management, much of which has no logical connection to any legitimate public health or welfare concerns. As Jan Hope of the Builders Association of Greater Indianapolis has repeatedly communicated to the Plan Commission, the Association supports in principle the concept of planning to make a community a desirable and attractive place in which to live (and build). However, because of the objectionable and illegal features of the Amendments discussed above, we urge the Council not to approve these Amendments as presently formulated. Instead, an appropriate group should be directed to overhaul the Amendments, retaining the portions that are reasonable and well-thought-out, and deleting provisions that are illogical, unworkable, unconstitutional, or otherwise illegal. Sincerely, Edward W. Harris III EWH/tkh bc: ~lr. Bill Roach, Roach Enterprises, 306 Vinewood Drive North, Brownsburg, Mr. Bill Carson, CEO, Indiana Builders Association ¥~. Jan Hope, Director - Governmental Affairs Builders Association of Greater Indianapolis, Inc. IN 46112 SQMMER & BAI NARD SLICE OF BREAD FOR V~EST CLAY US 31 NOT FLXED BY 2008 WEST CLAY CITITIZENS need commitments with respect to traffic for our health safety and welfare. If it is your judgment that this project is worthy of your approval, the citizens must look to you for protection. We are all reasonable people and Brenwick can build at 1 unit per acre - no questions asked. But, Brenwick is requesting an unprecedented level of density and building mix for this area. ~lcrcfore; For density above 1 unit per acre 1. Official contracts are let for Town Road intersections and road segments from 96th to 116th nad Springraill Road intersections and bridges from 96m to 131st for impmvemems according to the thoroughfare plan - Springmill will remain 2 - lanes but the width of the lanes widened, 2. Brenwick's 1.3 million dollars ($2,000 per acre) will be indexed to the 10 year AAA Municipal bond rote and will all bo used to begin upgrading 131st between Springmill and Town roads to thoroughfare standards. For density above 1.5 units per acre 3. Official contract is let for 116°a street to be upgraded to 4-lanes between US421 and US31. OTHER ISSUES OVERLAY DISTRICT FOR I16ra AND TOWN ROAD THAT IS SIMILAR TO ZIONSVILLE'S HUNT CLUB ROAD OF 3 ARCE PARCELS. MARK RATI'ERMAN'S PROPOSAL OF REDUCING CUT THROUGH TRAFFIC BY REDESIGNING ENTRANCES NOT TO LINE UP AND STREET MEDIANS. REVIEW WEST CLAY GRID ROAD SYSTEM. SOMEHOW ANGLE OR PARALLEL CLAY CENTER ROAD TO INTERSECT WITH DITCH ROAD. EXTEND HOOVER ROAD TO 136~m STREET. CONNECT HOOVER AND CLAY CENTER WITH AN EAST WE~ ROAD AT SOI. JTHERN END OF CLARIDGE FARMS. 116ra AND 131sT NEED AN INTERCHANGE AT US 31 BEFORI{ 2017. ';1998 Officers President· Mark l~agermann 11257 St. Andrews Lane Carmel IN 46032 581-0557 (days) 816-9449 (fax) '848-9360 (home) MarkR~)Mibor.net Rattermann.com Vice President Frank Franks 12833 West Road Zions:eille:lN 46077 873-3387 (days) .873-4556 (evenings) 873,3059 (fax) Treasurer Sherry CampbeU "Id 797 Pebblepoint Pass r!Car~el4N 46033 5~5;9276 Secretary Mary Beth Fleming 1277 W. Smokey I/ow ltd: Carmel IN 4~6932 575,8701 (fax) Membership chairperson Sue Dillon 507 Cornwall Circle Carmel IN 46032 844-~558 (home) 844-2529 hnmedialc past President Ron 1 louck 115 W. 107th Street Carmel IN 46032 276,8539 (days) 844-4515 (evenings) · I~.[:l-[ouck~Lilly :eom Clay l~remtt l~om. matio, a'a Co--cji, lta~. December 7, 1998 Members of the Carmel CiO? Council. re: Villages of WestClay .r .... Despite the quotes tn the "Indianapolis Star & News" that at a couple 6f you;have already made up your mind. I wish to restate some of bur concerns "ab0ut,the request for rezoning the land that is proposed for "The Village} of WestC-lay:: hope that the undecided councilors will listen to what we have to say coming to a decision. . ........... . · I know that whenever anyone proposes anything, you me used to.seeing a steady pmade of NIMBY's in front of yon telling you why you shoulO npt for the proposed project. '- "- .... · I also know that after a while, ~yone would become callous to ~ conit~t rqquest to keeF everything the way it was ......... · I also know that many people want commercial property nearby:bui;doh't want it in their back yard. , ~:, ., · I also know many people want to use cell phones but we donZ, t ,want.the towers near them. . . - - , - · I know that many persons want good highways nearby but don:t want:them too close. . ~ ~.. ,, ,;~ ;~-~-~ · I also know that sometimes you have to make tough decisions m ~he'h~e*of subst~tial remonstrance against a propqsal. ' -' · I for one, understand the conflict of allowing progress wi.thout stepping, qn citizens' toes. So I will not' insult you by gtving you reasons why you,shotil~t~tui? this project down for small and sell-serving reasons. _ .:e , · In case you haven't noticed, Clay West Information Council has not been.in front of you arguing against well placed projects, projects,in conformi[yr~ith'iit3e, comprehensive plan, or any commercial projects that are supportiv~ of'our commBnity. We have been involved in many public hearings and ~or0.mit_tee meeungs to discass problems, make suggestions and lend a tiand when n~ed~d: l/owever, we lry not to stand in the way of what is best for o.ur.comntumty. · We don't oppose all projects but we are ~n total·oppositioh to this projecfi This project is well designed, It will probably be successful, although many of us think it is very risky· It is a great idea but in a bad location. This projetSt, belongs ad)acent to Michigan Road or next to 146"' Street or between Springmill Rofid and Meridian Street but as you will see, it just does not belong squarely in the 1 ' .~ Clay llrest Intormation Council, Inc. center of the lowest density area, with the lowest capacity streets in the township. * You know and we know, that you can approve projects in our area but you cannot fund the repairs and upgrades to the roads. · You know and we know that i~'you approve this project, we will have to try to get the county to fund the road upgrades. The county officials have lnadc some verbal commitments toward £unding road upgrades but as you know this may or may not happen in a timely fashion. The real issue here is not whether this project is interesting or whether this project is well planned or if this project will be successful, the real issue is what will western Clay Township look like Rod .work like if this project is approved. ' Before you make your decision on the Village of WestClay, please visit Western Clay Township at 8:00 a.m. or 5:00 pm. on a business (lay. See why we are concerned about what this project will do to our neighborbood.. What are we going to do if you approve this projecl and the county does nqt al)- prove the upgrades? What happens if you approve this project and the constn,ction traffic and the new residents clog the streets and the county puts the upgrades on a five to ten year plan. What will we do for five to ten years? Before you make your decision to approve this project, please go to the comer of 116"' Street and Hoover Road at 8:00 a.m. on any workday. Envision, if you can all the traffic from the apartments, single family residences and commercial properties, as well as the traffic that has been directed· into- the village from tbe northern part of the county, all funneling to that intersection. Or even worse, envi- sion all that traffic going into a "some clay, could be built, 126"' Street" which will lead drivers to Spring Mill Road just north of 116'h xvbich is already a failed intersection. Look at the distance from Towne Road to Hoover Road and tell me if' you would suggest traffic lights at both Towne an.d Hoo- ,,,er Roads on 116"~ Street. I am sure you koow Floover Road "T"s into 116"' Street, which is a gr6at way to move large amounts traffic. . .; . / Before you make your dc(:isiou to approve this project, please go to the bridge over 1-465 and Town- ship line Road at 8:00 a.m. on any workday or at 5:00 p.m.. Envision, if you can all the tra?fic from the Village of West Clay that did not turn east which will now be funneled over this two lane interstate bridge. Tell us when this problem will be solved, when will this be a four lane bridge? How long:did it take to get a bridge over White River at 96th Street? How long did it take to get 116th Street between Keystone and White River to be four lanes? Flow long will it be before US 31 becomes an inters~,ate? Lets not add to tbe problem here, please follow the comprebensive plan and deny this petition. Last Saturday 1 had a young man come into my office and tell me of a proposed high density devel- opment at the corner of 106'~ Street and Spring Mill Road to be built by Sol Miller..I had a citizen last week tell me of two other high density projects rumored for Western Clay township. I am sure you have heard this decfsion will not be precedent setting and that legally you could turn dowh an identical development if proposed by someone else tomorrow. You know and 1 know, it will become more and more difficult to turn down developers in the fim~re when they ask for similar treatment if you approve this project. 2 ..--~ . ; Clay I/lrest Iriformt~tiori ¢onncil, Inc. The worst thing that happens if you approve this project, ~s you will have to listen to me when all the other proposals come through at the same or higher density and yon will have to listen to me. tell you "I told,you so". ?I told you so". Please follow the comprehensive plan and.deny this petition. Envision, if you can what Western Clay Township will look like if you approve this plan and'others just like that will follow. We think it will look more like Fishers and less like what you hadie, nw- sioned when you approved the comprehensive plan. Are we going to build something special' or will this just be another high-density area with a large PUD in the center just like College Park. Shadeland Station, Eagle Highlands and Sunblest? Please follow the comprehensive plan and deny thi,s~re~t~,efi.,v... ~..'Mark Rattermann ·~..·~ 1998 P sid . .. ~, : Clay W, est Informatton Council