HomeMy WebLinkAboutCRC-03-14-011
CARMEL REDEVELOPMENT COMMISSION Meeting/Public Hearing
Wednesday, March 14, 2001
The meeting was called to order at 7:04 p.m. by President Rick Roesch. Commission
members present were Ron Carter, Luci Snyder, Amy Boldt, and John R. Koven
constituting a quorum. Also present were Steve Engelking, Bob Falk, Peter Miller, Sue
Beesley, Pam Lambert, Les Olds, Loren Matthes, Dan Deeb, Chris Seger, Karl Haas,
Wayne Wilson, Mike Shaver, Bud Wilson, Patti Horrigan, Jack Lawson, Brad Yarger,
Greg Silver and several other members of the public. Sherry Mielke and Phyllis
Morrissey as support staff.
Mr. Roesch asked for a motion to change the order of the agenda so the Public Hearing
for Parkwood West would be first on the agenda. So moved by Ms. Snyder, seconded by
Mr. Koven.
Public Hearing
Mr. Roesch: We’re here tonight to look at adopting the confirmatory resolution creating
an economic development area of TIF area, to capture the tax increment for Parkwood
West area. We adopted a declaratory resolution earlier. This project has gone to the
Planning Commission and to the City Council. The zoning has been approved there. We
have had a determination that the development does meet the criterion established by the
Comp Plan and that was confirmed by the Plan Commission. So we are here tonight to
conduct a public hearing for deciding on the approval of this tax increment area. I would
point out that the improvements could be amended. That even after this evening, this
Commission is not under any obligation to actually issue the bonds. There are some
things and details that have to happen. As part of this public hearing, we will be listening
to testimony for and against this confirmatory resolution. There is a great deal of interest
in this particular project. I know, or have been told that there will be remonstrators. I am
told by their representatives that this will be probably no more than three hours. I would
like everybody to be as brief as possible, and try not to be redundant, if possible, in the
interest of all. But we, of course, would like to hear everything that people have to say
about this. We will take a break after an hour or so. We will go until right around 10 p.m.
At this time, I would ask if there is anybody who would like to speak for this project.
Seeing none, I would ask for the first person who would like to speak against this project.
And please give us your name, your address, who you represent, and whether you are a
taxpayer in the City of Carmel.
Remonstrators’ objections presented primarily by Daniel Deeb, Esquire, an attorney with
Beckman Lawson in Fort Wayne, Indiana, at 200 East Main Street.
I am here tonight representing several Carmel and township representatives, Carmel
taxpayers, as well as the Heartland Coalition and its members. The specific identities of
my clients are stated in the remonstrants that I will submit to you at the conclusion of my
presentation. With me today is Jack Lawson, Attorney Greg Silver, and Mr. Brad Yarger
of Yarger Engineering.
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Mr. Deeb said he would try to be as brief as he could. “Nonetheless, there are several
comments I must make in order to satisfy my professional duties to my clients.
Additionally, there are many questions I am required to ask, and that is where I will
begin.
As you may know, in Re Jefferson Redevelopment Commission, 299 NE 2nd 825, the
Indiana Supreme Court found that those affected by the declaratory resolution had a right
to “call upon and question commissioners and their employees to explain, in total, all
information and data bearing upon the declaratory resolution.” Further, the Supreme
Court stated that such people had the right to cross examine witnesses and to submit
rebuttal evidence. Given these rights to question and cross examine, I am required to ask
questions of you. Please understand that these are questions that I must ask according to
my rules of professional responsibility.
At the outset, I would like to ask an open question to all of the commission members to
simply ask whether or not you each fully understand and agree with the statements and
conclusions that are presented in the, collectively in the Economic Development Plan, the
declaratory resolution, the tax impact statement and the findings of fact. Does anyone
disagree, for the record?
Mr. Roesch: I would like to consult our attorney. It was not my intent, nor the intent of
the Commission, to be questioned. We would like to have you make a presentation. The
appropriateness of that, I will have to rely upon Ms. Lee.
Ms. Lee (attorney with Ice Miller): Obviously I have not had time to read this case.
[handed out by Mr. Deeb]. According to the statute, you shall consider all written
remonstrances and objections that have been filed. And you shall hear all persons
interested in the proceedings. So whether you want to interpret that to mean that you have
to answer questions, I would have to read the case to know if it goes that far. And if you
would like me to take the time to do that, I will do that.
Mr. Deeb: I would ask that that does happen. Number one, it is only a two page case. I
will read you the excerpt of the Supreme Court opinion. “The legislature intended those
persons affected by the declaratory resolution should have a right to call upon the
commissioners and their employees to explain, in total, all information and data bearing
upon whether or not the area as described in the declaratory resolution was, in this
context in truth, blighted. A full hearing, at which every party”…
Mr. Koven: Can you slow down so we can hear you, please?
Mr. Deeb: Oh, I am sorry. Actually I have a bad habit of talking quickly. Please interrupt
me whenever you have to for that. That opinion goes on to say “that a full hearing at
which every party has a right to present its case, or defense by oral or documentary
evidence, to submit rebuttal evidence, and to conduct such cross examination as may be
required for a full and true disclosure of facts, is essential for wise and just application of
the authority of the administrative agencies.
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Mr. Roesch: Lisa, is that…
Ms. Lee: Honestly, I cannot hear half of what he is saying. I would propose, if he wants
to move forward, that maybe you go ahead and take all of his questions and we hold the
response until the end, if you want to do it that way.
Mr. Roesch: My question is whether we… I caught something in there that it is wise to. Is
that correct?
Mr. Deeb: I’m sorry?
Mr. Roesch: That you’re saying that the Supreme Court said that it is wise to?
Mr. Deeb: Yes.
Mr. Roesch: It didn’t say that we had to?
Mr. Deeb: Actually the wholly of that particular case, Mr. Roesch, is that the decision of
the Redevelopment Commission was overturned and sent back because they did not
allow the remonstrators a right to cross examine the commissioners.
I guess I would suggest to you, this is one of the reasons that the law has developed in
this way, in a redevelopment commission context, many of you are permitted to, for
example, have contact with people… well, let me say this: The declaratory resolution and
findings you have made, you have made ex parte. You have made in meetings at which
the public has not been there to participate. The public participation in the redevelopment
process is here. You have already made your decisions. You have entered findings. And
you’re here today merely to confirm them so that the public has a right to question you
on those findings concerning the specific reasons and facts under which you have based
those opinions stated in the findings.
Now, my entire presentation frankly, is predicated and will depend entirely upon your
answers to the questions. I am unable to simply change the order. Depending upon the
answer of the questions, my presentation will go several different routes.
Mr. Carter: Mr. Roesch, one of the things that I seem to note here is the part about the
commission members and the employees. I note that these folks have quite an array of
people here again tonight, as far as their experts are concerned. Do we have the people
we need here to form our professional standpoint tonight to do what we need to have in
the way of advice? The people that have worked with us to put these materials together?
And if not, should we have those people here? And if that’s the case, should we adjourn
this until we can get that put into place?
Mr. Haas: I am not acquainted at all with the case mentioned. My guess is that in that
case there was a request for a hearing of that nature, where there would be an opportunity
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to cross examine and to question the employees of the Commission. My guess is that
after that request, that whatever the Commission was involved in that case refused. It
seems to me as though in this particular instance, that the request for that kind of an
opportunity should have been made before this meeting. So that, if in fact, Ron, you
would have been able to come prepared not only to answer questions, but also to have
here the proper people to advise you on what those answers should be. I think it is quite
likely that having not requested that kind of a hearing, and not asked of you what the
format of this hearing would be, that it may be that they’ve waived their rights to cross
examine and to discuss the matter with your employees. My advice, unless Lisa
contradicts me, is that you ought to proceed with your public hearing as you had planned
it.
Mr. Roesch: That’s what I would be inclined to do. I think in answer to your question,
Ron, my opinion would be that we do have the experts here, but they certainly have not
had a chance to review any of this information. So I would be inclined, upon the advice
of Carl and Lisa, to proceed as we were going to proceed, and hear testimony and no
questions.
Ms. Snyder: This hearing was scheduled previously and was postponed, giving ample
time, I would think, for any opposition questions to have been assembled and either put
to you or to be passed on to our attorneys and financial advisors. It is a shame because
although this is the official public hearing for this decision, there have been other public
hearings before this Commission, where remonstrators were allowed to speak. So it’s
disconcerting to not be prepared because the questions weren’t submitted so that we can
make sure that we had the proper answers, when there was ample time for that to happen.
Mr. Deeb: Thank you all for your comments. I appreciate them. I would submit to you
that waiting for your experts and other consultants to appear, I may very well have other
questions for them. I don’t know, it depends on your answers. But quite frankly, I am not
nearly as interested in what they have to say. You are the five people who tonight… who
have already entered findings. That’s what you did when you passed the declaratory
resolution, you entered findings. And those findings are supposed to be based upon facts
and information that you have. Today, if you’re going to deliberate and discuss and pass
upon a confirmatory resolution, well, again, I want to know on what basis you are
making your opinions. Now, if the consultants have told you the information, that’s fine.
I really don’t… that’s not material to me, necessarily, as to how you obtained the
information. But I want to make sure that the information that this Commission will be
making at your deliberations, obviously it’s not your consultants that make the decisions,
it’s you, what information that you have, what information you’re basing your decisions
on. So I would respectfully submit and ask that I be allowed to proceed and ask my
questions. If not, I would ask one of two things. If you chose not to answer these
questions, I would ask that you either state on the record that you will not answer
questions from me or anyone else in this matter, or that you adjourn this matter so you
can ask for the consultation and prepare as you wish.
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Mr. Roesch: I am inclined, as the chair, to ask you not to ask questions. We’re going to
proceed as we were going to proceed. You can present your case. We will deliberate on
that information. We have not assembled enough information before this meeting to make
a final decision on this. So I would expect you, if you chose to, to give us information
that we can deliberate on.
Mr. Deeb: Excuse me. I will submit that much of my presentation, the rationale under
which I will ask you to act, is based upon a lack of information in the record. Therefore,
these questions are necessary to reveal what information exists, as opposed to me
presenting evidence. Nonetheless, I understand, Mr. Roesch, it is your decision that you
will not allow me to ask questions this evening. And I will respect that decision.
Mr. Roesch: I am going to ask for a quick consensus on that from my people.
The Public Hearing was closed at 9:56 p.m.
Mr. Roesch’s comments in response to the questions from Mr. Deeb:
We recognize that the case cited by remonstrators at 229 North Eastern 2nd, Page 825,
states that “those persons affected by the Declaratory Resolution should have a right to
call upon the commissioners and their employees to explain in total all information and
data bearing upon whether or not the area described in the Declaratory Resolution was, in
truth, blighted.”
We are unable to determine whether or not this case is good law or, in fact, applies to
CRC or these proceedings.
However, we know that the case also states that “there must be adequate notice of issues,
and the parties must be given an opportunity to be present, to submit evidence, and to
cross-examine witnesses.”
Let the record show that, until this meeting was called to order, remonstrators never once
asked for an opportunity to cross-examine witnesses.
Let the record also show that remonstrators did not provide to CRC notice of the issues
that remonstrators intended to raise.
A fair reading of the case cited would dictate that if the case is applicable, CRC would be
a party entitled to notice of issues and to cross-examine witnesses.
Remonstrators failed to notify CRC of the issues. Consequently, CRC had no opportunity
to prepare itself to address those issues, or, in fact, to assure that the employees of CRC
would be present to assist in responses or to be cross-examined.
Moreover, remonstrators have presented as evidence the opinions of individuals not
present. Those individuals would constitute witnesses who should be available for cross-
examination by CRC and other parties. The case would seem to require that the
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“fairness” be accorded to all parties. Remonstrators have failed to provide their witnesses
for cross-examination. This would deprive CRC and other parties of the “fairness”
required to be accorded all parties.
Let the record show that remonstrators had numerous opportunities at prior hearings and
otherwise to request a forum for cross-examining witnesses. In fact, this hearing was
postponed at the suggestion of remonstrators. Yet, at no time did remonstrators notify
CRC of the issues they intended to raise nor did remonstrators request a forum for cross-
examination.
Let the record also show that, had remonstrators notified CRC of the issues they intended
to raise and had remonstrators requested a forum for cross-examination, that forum
would have been granted.
However, because the remonstrators have been dilatory and because the remonstrators
have failed to accord CRC and any other parties the “fairness” required by the case cited,
the delinquent request for a right to cross-examine witnesses at this hearing can not be
accommodated as remonstrators now request; but remonstrators have been
accommodated by a full and fair opportunity to present evidence and to propound their
questions into the record.
If questions can’t be reviewed in a simple forum, we believe the written documents and
evidence before the Commission at this time together with the evidence presented by
remonstrators, are adequate to demonstrate the basis for these deliberations.
The record includes all public documents before the Commission, all presentations by
Duke Weeks and others, the commentary by Commission members at each public
meeting, the reports and decisions of the Plan Commission and the Council in this matter.
The remonstrators should rest assured that CRC will take into account, and give due
weight in making its final decisions, to all evidence presented by remonstrators tonight.
Mr. Koven’s Comments.
The remonstrators distributed a memorandum at 10:30 p.m. which they requested be part
of the public hearing record. CRC members read the memorandum.
Mr. Roesch’s comments.
Mr. Carter’s comments.
Mr. Roesch noted the confirmatory resolution would be for $3,760,000 + attorney fees,
legal fees, consultant fees.
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Ms. Snyder moved the CRC approve the proposed Confirmatory Resolution for the Duke
Weeks project called Parkwood West with the amount specified to be $3,760,000.
Following a second by Mr. Koven, the motion was unanimously approved.
Mr. Roesch thanked those who attended the public hearing.
BREAK
Quorum assembled so the meeting continued.
Mr. Haas reported the Hamilton Group has not submitted the revised letter of intent. “I
called today and confirmed that they weren’t ready to respond to our last communication
with them which was that their proposed price was inadequate. Tom Lazzara of the
Hamilton Group told me that they would have a response ready so it could be addressed
by the Commission members at the next meeting.”
Declaratory Resolution for Merchants Pointe
Sue Beesley: You have before you the Declaratory Resolution for the Merchants Pointe
project. I believe you are all familiar with the project. It was discussed at your last
meeting. This is the same resolution that you had at your last meeting so hopefully
you’ve had time to consider it.
Since that time, however, Mr. Shaver has done the economic development plan which
you should have also all received a copy of and had an opportunity to review. As you said
Mr. Shaver’s here this evening if there are questions about the plan. Loren is here this
evening if there are questions for her and Mr. Hennessey is here representing the
developer if there are questions for him. Sherry has execution copies of the resolution for
you.
Mr. Roesch: Correct me if I’m wrong, Sue, but at this stage we are simply implementing
the capture of the TIF and we will go through the whole process as we did on the last one
that was before us.
Ms. Beesley: That’s correct. This is the first stage in the process.
Mr. Roesch: So substantial changes can be made if necessary after people have had a
chance to really digest the information, ask our professionals and so forth.
Ms. Beesley: Yes, sir.
Mr. Roesch: Questions?
Mr. Koven: Are we looking for the same kind of reimbursement agreement going through
this process that we are through the other one? I believe it should be our standard
operating procedure.
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Ms. Beesley: Yes, Mr. Koven, I believe that is the case, but I’ll let Karl address that.
Mr. Haas: Yes, and that will be ready for approval at the next meeting.
Mr. Koven: Prior to us voting, you’re going to tell me they’ve agreed to that?
Mr. Haas: Yes.
Ms. Beesley: Yes, and Mr. Hennessey acknowledges from the audience.
Mr. Roesch: And prior to that meeting also, Karl, will you review the vendors’ contracts?
Mr. Haas: Yes, I’ll do that also.
Mr. Roesch: Any other discussion or questions of Sue or any of our vendors? I think in
this particular case we’re really aware of this project. It’s been a long time coming. This
is also fairly small, 850,000 compared to some of the others.
Mr. Koven: So we aren’t going to be doing this, what we did earlier tonight, next month?
Ms. Beesley: Mr. Koven, I certainly hope not. We all hope not.
Mr. Roesch: Any further discussion?
Mr. Koven moved the CRC approve the Declaratory Resolution for Merchants Pointe.
Following a second by Ms. Snyder, the motion was unanimously approved.
The Executive Session scheduled to follow this meeting was cancelled.
The CRC will meet on Monday, March 26, 2001, 7 p.m. in the Caucus Rooms.
Adjournment
Ms. Snyder moved the meeting be adjourned. Following a second by Ms. Boldt the
motion was unanimously approved and the meeting was adjourned.