HomeMy WebLinkAboutCorrespondence} John: R Molitor
rtttorney at Law (317) 843-5511
9465 Counselors Row, Suite 200 Fax (317) 843-1543
Indianapolis, IN46240-6150 a-mail jmolitor@prodigy.net
MEMORANDUM
TO: Members, Carmel Clay Plan Commission
FROM: John R Molitor
DATE: August 19, 2003
12E: Proposed Termination of Planning and Zoning Joinder
The Carmel Common Council is currently considering a resolufion that is intended to
terminate the format "joinder" between the City and Clay Township in respect to
planning and zoning jurisdiction. This joinder has been in effect in this community since
1961, having been approved after enabling legislation was enacted by the Indiana
General-Assembly in 1959.
The pending Council resolution raises many fiscal and political issues. I have
summarized, on the attached tables, the potential ramifications of approval or disapproval
for this Plan Commission and its jurisdiction. .
For your information, the state statutes that govern these matters aze IC 36-7-4-205, IC
36-7-4-207, IC 36-7-4-214, IC 36-7-4-216, and IC 36-7-4-1200 through 1213.
cc: Members, Carmel Clay Boazd of Zoning Appeals
Mayor James Brainard
Trustee Judy Hagan
~ IF COUNCIL RESOLUTION IS NOT APPROVED BEFORE 12131103:
Follow-up Action Bodies That Will Have Effect on Plan Effective Date of Effect on Carmel Clay
Taken By Local Zoning Jurisdiction Commission Membership Change Zoning Ordinance
CitizenslBodies over Unincorporated Membership and Park Impact F¢e
Part of Township (Currenty 15) Ordinance
None- pending Cannel Clay Plan Reduced to 13 (with 4 1/1104 Ordinances will
annexations tc take Commission and Township members, continue in effect
effect as curendy Cannel City Coundl appointed by Township without interruption
scheduled Tmstee)
City Coundl- Carmel Clay Plan Reduced to 10 (with 1 111104 Ordinances will
accelerate effective Commission and Township member, continue in effect
dates of currently Carmel City Council appdnted by Township without interupfion
pending annexations Trustee)
CityCouhcil -continue Carmel Plan Reduced to 9 (with no 1/1105,1/1106, or upon Ordinances will
with program to annex Commission and Township members) effective date d final continue in effect
entire Township Cannel Cily Coundl annexation ordinance without intertuption
IF COUNCIL RESOLUTION IS APPROVED ON OR BEFORE 12!31!03:
Follow•up Action Bodies That Will Have Effect on Plan Effective Date of Effect on Carmel Clay
Taken By Local Zoning Jurisdiction Commission Jurisdictional and Zoning Ordinance
CitizensBodies over Unincorporated Membership Membership Changes and Park Impact Fee
Part of Township (Currently 15) Ordinance
None None Reduced to 9 (with no 1/1104 Both Ordinances will
Township members) expire an 12131103
Township residents or Cannel Plan Reduced to 11 (with 2 Date to be determined Both Ordinances will
Cannel Plan Commission and Township members, by County Ordinance; expire on 12131103,
Commission -petition Carmel City Council appointed by County Ordinance requires unless all required
County Commissioners Commissioners) public headng before steps are completed on
'
far authodty to expand County Plan rf
or before 12/31103;
into City's 2-mile Yringe Commission, adoption Ordinances expire, new
area' by County ordinances must be
Commissioners, and drafted and adopted
acceptance of (estmated effective
judsdidion by Cannel date would be 111/05)
Plan Commission
County officials- Hamilton County Plan Reduced to 9 (with no Date to be determined Carmel Clay
prepare Commission and Township members) by County Ordinance; Ordinances will expire
Comprehensive Plan Hamilton County Ordinance requires on 12131103; County
and Zoning Ordinance Commissioners public headng before Zoning Ordinance may
cevedng County Plan become applicable
'
unincorporated part of Commission and afferthat dale
Clay Township adoption by County
Commissioners
'NOTE: A new park impact fee ordinance for Carmel and Clay Township would then require the approval of the Carmel Clay Parks
Board, both the Carmel Plan Commission and the Hamilton County Plan Commission, and both the Carmel City Council and the
Hamilton County Commissioners. The estimated effective date of such a new ordinance would be 1/1105 or later,
08/06/09 R'ED 15:47 FA% 9178438097 Campbell RYle ProPPltt f~001
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CAMPBELL KYLE PROFFI'~T LIB ~~`
ATTORNEYS AT LAW ~r[<~; ~~/UrQ ,_~ PRANK 9. CAMPBELL
JOHN M. KYLE n
JOHN D. PROFP(Ti ~ !~~?3 .__ ~ f 1880.1964)
ROBEAS F. CAMPBELL l} (+ ~
JEFFREY 9. NiCKLOY v~u PRANK 1{! CAMPBELL
DEBORAH L-FARMER ~ / (1916-1991)
WiLLlAM E. WENDL[NG, JA. ~ ., , j'
ANNE HENSLEYPOINDEXTER ~t -.
ANDREW M. BARKER ~' ~-L.~ __~-sue' ~ / YHOMA9 b. TISSWORI'EI
MICHAEL A- CASA71 FAX COVER SHEET Of Counsel
JOHN S. 1T:ARY ~ '
RODNEY 7. 9ARKOVIC9
SCOTT P. WYA1T
AMY E. HIGDON _ Da[e_ ~ -\fl -~ -~j
ALLYSON R. BAEEDEN
ORVAL P. SCHIERHOLZ
----,
To: p~r.~ ~o\ ~~oe-- ~~ ra - `-113-3
From~~~`~ W ~-mod.\~ ~~
Total Number of Pages, Including Cover: ~ ~ ~ ~ ~ j Z
Should you experience arty problem in receipt of these pages, please contact
CN ~~ as soon as possible at (317) 846-6514. Thank you.
Original will /will not `r` follow via (7.5. Mail.
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650 Eas[ Carmel Drive Suite 400 Carmel, Indiana 46032 (317) 846.6514 FAX (317) 843.8097
08/06/03 WED 15:48 FA% 0178408097
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)OkIN M. KYLE
JOHN D. PRUFYITT
ROBERT F. CAMPBELL
JEFFREY S. NiCKLOY
DEBORAH L. FARMER
WILLIAM E. WENDLING, 1R.
ANNr•HENSLRY POINUExTER
ANDREW M. BARKER
MICHAEL A. CASATI
)OHN S. TERRY
AODNEY T. SARKOViC9
SCOTT P, WYATT
Via Facsimlle
JohnR. Molitor
9465 Counselors Row, Suite 200
Indianapolis, Indiana 46240-6150
August 6, 2003
Re: )razlham College and Carmel Clay Plan Commission
Deaz John:
X002
PRANK 5. CAMPBELL
(IdtlO-I96~)
FRANK W. CAMPBELL
((9364991)
THOMAS D. TITS WORTH
Of Counsel
The purpose ofthis letter is to return to you a revised copy of the "Commitment Concerning
the Use of Real Property Incident to Postponement of the Plan Commission Hearing". As you will
soon see, we have made several changes to yourproposed document. However, we do not tllink that
any of our changes should present an impediment to the execution of the document.
I want to outline our thoughts relating to those changes and for purposes of continuity, I will
try to do so in the order presented in your document. Please, however, review the document and if
you have any questions or if we have not clearlymade ourselves understood, call me so that we can
elaborate further on those issues.
In your opening pazagraph, you referred to Exhibit "A" as a "Legal Description". We aze not
in a position to verify the description yet. If you have a source, or any guidelines on that, we would
appreciateit. Meanwhile, wewillcheckwithoursourccstodeterminewhetherthatlegaldescription
is correct. It is our understanding that this agreement only concerns the land that is in Clay
Township and lies to the west of the river. If that is incorrect, please let me know at your eazliest
possible convenience.
Since there was no discussion of any agreement with respect to any date later than Mazch
2004, we were quite surprised to see a time frame that was significantly longer in your paragraph 2.
Tllus, we have taken pains to see that th.e language used limits this agreement to the time frame
discussed at the hearing. Specifically, that of the regular meeting dates scheduled for the Carmel
Clay Plan Division in March, 2004. To ensure that there is no misunderstanding about the date, we
have inserted a new paragraph 3.
ui io•euouai - v.rccr uTT1Ce Ju1L06~ Page 2
Campbell Ryle Profl°itt
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CAMPBELL KYLE PROFFTIT
ATTORNEYS A7 LAW
650 East Carmel Drivc Suite 400 Carmel, Indiana 46032 (317) 846-6514 FAX (317) 843-8097
08/08/09 t4ED 15:48 FA% 9178498097 Campbell Kyle Proffitt C>Jj009
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John 12. Molitor Page 2
August 6, 2003 '
Your pazagraph 2 (b) addresses a situation in which a Docket No. 105-03 Z is withdrawn
from consideration without being certified to the city council. There was no discussion of such a
contingency. Tiowever, we can agree that ifthe Petition is withdrawn from consideration before the
end ofMazch, 2004, the Commitmentwill be deemed to expire or terminate on that withdrawal date.
Furthermore, in yourpazagraph 2(a), we felt that there needed to be a modification to ensure
that the Commitment expires at least by the end of Mazch, 2004, that language you will see is as
follows:
"March 16, 2004 or, if applicable, such other date within the month
of Mazch 2004 on which the Commission may hold its regular
monthly meeting for the month of March, 2004; or"
You will see that we have changed your paragraph 3. Specifically, the Iasi phrase of the first
sentence sounds as if there is no automatic or definite termination date. Thus, it refers to continuing
in affect "unless modified or terminated by the Commission or it's successors." 7'he implication is
misleading and confusing. It probably should read "unless terminated pursuant to the paragraph 2
(your 2, now our 3) above or unless terminated by a mutual written amendment to this Commitment,
duly signed by the Commission and Eazlham."
Similarly, the second sentence of your pazagraph 3 implies that only the Commission may
terminate the binding effect of this Commitment can be and should be omitted.
The thud sentence of your paragraph 3 which begins with "However, until," should have the
word "however" removed; the words "modified or" shouldbe changed to "mothfied, expired or";and
then a proviso such as the following added after the last word "remedy;" "provided that such
enforcement, relief, denial, approval or remedy is related to the real estate described in Exhibit "A"
and to some effects or harm from a breach or violation of the Commitment by Earlham."
In the final sentence, in your pazagraph 3 the words "to modify or terminate the
Commitment" have been changed to read "to enforce this Commitment." Otherwise, it does not fit
the terms.
Your paragraph 4 needs to be expanded and has been, to require that the Cannel Clay plan
Commission is to record in the same fashion and in the same "office of the recorder," a Statement
of Termination of Conunitment within fourteen (14) days after this Commitment has expired or
terminated in accordance with the appropriate pazagraph. The record, in Eazlham's property rights,
CAMPBELL KYLE PROPFITI' LLP
ATTORNEYS AT L4W
n.+a.n.a.v no: o, of vu io: oo;
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John R. Molitor Page 3
August 6, 2003
should not be leR clouded by the "commitment" and the Plan Commission certainly should be
prepared to admit that it has been terminated.
Thus, the following should be added at the end ofthe last sentence in yourpazagraph 4 which
becomes our pazagraph 5: "Within 14 days immediately following the expiration or termination of
this Commitment, the Carmel-Clay Plan Commission shall authorize, and cause to be made, the
filing of a'Statement ofTermination of Commitment' in the office of the same recorder, in the same
fashion, and with respect to the same property as referred to above. That statement shall indicate that
the previously recorded Commitrrtent (identified by date and location and the record) has been
terminated or has expired and is no longer of any force and effect."
Finally, this is not an agreement by Earlham alone. The Plan Commission has some
reciprocal duties that need to be aclmowledged and enforceable. Therefore, we have simply set up
the Commitment for the signatures of the prospective parties.
As I mentioned to you at the beginning of this letter, we believe that we have made changes
that you need to be aware of. However, as I also mentioned in this letter, we do not feel that these
changes would prohibit them from being executed. Please contact me at your eazliest convenience
so that we can discuss how we can finalize this matter. Obviously, as I have indicated before, if you
have any questions, please do not hesitate to contact me,
Sincerely,
CAMPBELL KYLE PROFFTTT LLP
~ ~ ~" n
u--cam-A x~o-w-~ `~-d2_Q~ ~~
PC`s--
William E. Wendling, Jr.
WEW/pjm
cc: Lee B. McTuman
04156.002
Cniv1P138LL KYLE PROFPITI u.P
ATTORNEYS AT LAW
08/06/09 WED 15:49 FA% J1784J8097
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Cross Reference:
Campbell Kyle ProPPltt
Deed dated
and recorded on
as Instrument No. in the Office of the Recorder of Hamilton
County, Indiana.
COMMITMENT CONCERNING TAE USE OF REAL PROPERTY
iNCiDF.NT TO POSTPONEMFNT OF PLAN COMMISSION HEARING
The undersigned, Eazlham College ("Eazlham"} and the Carmel Clay Plan Commission
("Commission") hereby make the following commitments incident to the Commission's approval
of a motion to continue or postpone the public hearing ofDocket No, 105-03 Z, which is a proposal
to change the zone maps incorporated byreference into the Carmel C1ayZoning Ordinance in respect
to certain real estate owned by Eazlham. Such land is located in Clay Township, Hamilton County,
Indiana, anal described on. the attached Exhibit "A" incorporated herein, and wluch real estate is
herein referred to as the "Eazlham Property".
1. General Restriction on Development. Eazlham shall not file any of the following
types of proposals with the Commission before the termination or expiration of this Commitment:
(a) Primary Plat, seeking the approval of a subdivision of any or all of the
Earlham Property pursuant to the Carmel Clay Subdivision Control Ordinance.
(b) Subdivision Waiver, seeking the approval of a waiver of any the provisions
of the Carmel Clay Subdivision Control Ordinance.
(c) Comprehensive Plan Amendment, seeking theamendmentOftheCarmeiCiay
Comprehensive Plan in respect to the Eazlham Property.
(d) Ordinance Amendment, seeking an amendment to the Zoning Ordinance or
Subdivision Control Ordinance as it may apply to the Earlham Property.
(e) Rezoning, seekinganamendmenttothezonemapsincorporatedbyreference
into the Carmel Clay Zoning Ordinance in respect to any or all of the Eazlham Property.
2. General Commitment and Agreement bvthe Commission: The Conunission shall not
in any manner, or form, proceed with efforts or proposals to change the zoning map as it relates to
the Earlham Property before the Expiration Date pursuant to Paragraph 3 below.
3. Effective and Expiration Dates. This Commitment and agreement shall be effective
from and after the approval of a motion by the Commission, pursuant to Article VIII, Section 8 of
its Rules of Procedure, to continue and/or postpone its public hearing of Docket No. 1.05-03 Z until
the Commission's regular monthly meeting for the month of Mazch, 2004. This commitment shall
expire on the earlier of the following dates:
I~ 005
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Campbell RYle Proff
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(a) March 16, 2004, or, if applicable, such other date within the month of March,
2004, on which the Commission may hold its regular monthly meeting for the month of
March, 2004; or
(b) The date if and when Docket No. 105-03 Z is formally withdrawn from
considerafion before Mazch 31, 2004.
4. Binding Effect. This Commitment is binding on Eazlham as the current owner of the
Eazlham Property, each subsequent owner thereof, and each person acquiring an interest therein
unless terminated pursuant to pazagraph 3 above or unless terminated by a mutual written
amendment to this Commitment duly signed by the Commission and Eazlham. This Commitment
is also binding on the Commission. Until modified, expired or terminated, this Commitment shall
be enforceable by the City of Carmel, the Commission and Earlham by injunctive relief, denial of
building permits or approval, or other appropriate administrative or judicial remedy, provided that
such enforcement, relief, denial, approval or remedy is related to the real estate described in Exhibit
A and to some effects or harm from a breach or violation of the Commitment by Eaziham, the City
of Carmel or the Commission.. In such proceedings to enforce the Commitment, notice of hearing
shall be given to tha owners of property as required by the Carmel Clay Zoning Clydinance and the
Commission's Rules of Procedure.
5. Recordine. The undersigned authorizes the Director of the Department of
Community Services of the City of Carmel to record this Commitment in the Office of the Recorder
of Hamilton County, Indiana. A copy of this Commitment shall be delivered to Eazlham by the
Department of Community Services after it is recorded by the Recorder of Hamilton County.
Within 14 days immediatelyfollowingthe expiration ortermination ofthis Commitment, the
Carmel-Clay Plan Commission shall authorize and cause to be made the filing of a "Statement Of
Termination Of Commitment" in the office of the same Recorder, in the same fashion, and with
respect to the same property as referred to above. That Statement shall state that the previously
recorded Commitment (identified by date and location in the record) has been terminated or has
expired and is no longer of any force and effect
bated this day of August, 2003.
CARMEL CLAY PLAN COMMISSION
sy:
(signature)
(printed name)
Its:
(title)
08/06/09 {9ED 15:49 FAX J178498097 Campbell %qle ProYYitt V f~007
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State of Indiana, County of Hamilton, SS:
Executed and acknowledged before me, aNotaryPublic in and for said County and State this
day of , 2003.
My Conunission. Expires:
State of Indiana, County of Hamilton, SS:
,Notary Public
Resident of Hamilton County, Indiana
EARLHAM COLLEGE
sy:
(signature)
(printed name)
Tts:
(title)
Executed and acknowledged before me, a Notary Public in and for said County and State this
.day of , 2003.
Notary Public
My Commission Expires:
3
Resident of Hamilton County, Indiana
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EXIII$IT A
Leal Description
All that land lying west of White River in Section 22, Section 23 and Section 24 in Township 18
North, Range 4 East in Hamilton County, Indiana, as described in a deed recorded in Book 185,
page 339 in the Office of the Recorder of said Hamilton County, except that portion thereof
described in a deed to Carmel Clay Schools recorded as Instrument Number 9609651829 in said
Recorder's Office and also except that portion of 146th Street and River Road described in a deed
to the Boazd of Commissioners of Hamilton County, Indiana, recorded as Instnunent Number
200100065741 in said Recorder's Office. Containing after said exceptions 696 acres, more or
less.
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from the desk of.. .
Susan R. Balmas
Carmel City Hall
Dept. of Community Services
One Civic Square
Carmel, IN 46032
The Boazd of Zoning Appeals
July 3, 2003
To Whom It May Concern:
Re: Rezoning of the Conner Prairie site
I believe Tuesday's meeting is the monthly Committee Meeting at which the public is welcome but input is
limited (saved for the Public Hearings). However, I do wish to make a comment to the Members of this group
regarding the rezoning of the 690 acres of land belonging to Conner Prairie.
I believe that the city has the right vision for the community in requesting this rezoning. As stated in the
newspaper articles, it was never intended that this land put the burden of city services and infrastructure on the
city. As part of the living Museum, I believe Conner Prairie represented itself and its intentions to use the land
in a fashion consistent with the Museum, and not for profit by selling out to the highest bidder.
The concerns expressed by the Mayor Brainard regarding the way Earlham College is serving as trustee for
Conner Prairie and its assets aze very valid and speak to what potentially could happen with this land, i.e. as a
future subdivision with potentially thousands of homes - 690 acres, minus infrastructure, times 3 homes per acre
could be nearly TWO thousand homes! That number translates into at least 3 additional elementary schools, not
to mention additional police and fire protection, new sewers and water.
This is not an attempt to condemn and confiscate this land. This land remains very viable in the newly proposed
classification. What this represents is an attempt by city planners to insure that the zoning is consistent with
community planning.
The only thing Carmel planners did wrong was to rely on Conner Prairie's plans to develop the land as part of
its museum without fixing the zoning before this situation cropped up. Now we have to work to correct this
situation.
Thank you in advance for your time and interest in my letter as a concerned citizen.
Sincerely,
Sent via email attachment, electronic signature
Susan R. Balmas
cc Mayor Brainard
13634 Royal Saddle Dr. Carmel, IN 46032
317-569-8794, fax 317-569-8794, email sbalmas@indy.rr.com
CAMPBELL KYLE PROFFTTT LLP
ATTORNEYS AT LAW
JOHN M. KYLE
JOHN D. PROFFITT
ROBERT R CAMPBELL
JEFFREY 5. NICKLOY
DEBORAH L. FARMER
WILLIAM E. WENDLING, JR.
ANNE HENSLEY POINDEXTER
ANDREW M. BARKER
MICHAEL A. CASATI
JOHN S. TERRY
RODNEY T. SARKOVICS
SCOTT P. WYATT
AMY E. HIGDON
ALLYSON R. BREEDEN
OAVAL P. SCHIERHOLZ
July 1, 2003
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FRANK S. CAMPBELL
(1880-1964)
Mr. Michael Hollibaugh
Director Carmei Department of Community Services
Carmel City Hall
Third Floor
1 Civil Square
Carmel, 1N 46032
Re: Ordinance No. Z-413-03
Dear Mr. Hollibaugh;
FRANK W. CAMPBELL
(1916-1991)
THOMAS D. TITSWORTH
Of Counsel
The purpose of this letter is to inform you that the undersigned represent Earlham College
and Conner Prairie, Inc. with regard to the 6961 acres southwest of 146`h Street along the White
River, more specifically, the property which Ordinance Z-413-03 seeks to •re-zone. Our client
has just learned that this matter will come before the Carmel Plan Commission on July 8, 2003
for a Public Hearing. On behalf of our client, we formally request that this matter be continued.
The re-zoning of its property is a significant concern for our client and the short notice
will materially prejudice it. The petition for the zoning change indicates that the City of Carmel
has reauested this change. We have no idea who has made this request even though repeated
requests have been made to find out who started this process. The owner of the property has not
made such request, so who has? One official of the City said yesterday "T guess I am not at
liberty to disclose" who is responsible for this re-zoning petition. Nor do we know why, at this
time, such change is being requested. We are unable, due to this short notice, to gather
information and evidence and do research necessary to prepare a presentation in response to this
ordinance change that would negatively impact Earlham College's property. A special meeting
and proposing to ask for a vote on Tuesday are extraordinary procedures that short circuit the
normal reference to the subcommittee process and use a "notice" based on a zoning classif cation
that has not even been passed. It is also a zoning classification obviously createdjust for
Earlham's property -- a "Living History Museum." It is impossible to prepare a response to this
re-zoning request since the Park-2 zoning classification has not been codified or become law and
only recently has been published.
650 East Carmel Drive Suite 400 Carmel, Indiana 46032 (317) 846.6514 FAX (317) 843.8097
Mr. Michael Hollibaugh
Page Two
July 2, 2003
It appears that this is an attempt to create a new zoning classification fora "Living
History Museum" and to re-zone the property, which obviously reduces the property's value.
Consequently, this letter, in addition to requesting a tabling of this matter for the July 8"' hearing,
also serves as Earlham College's preliminary objection to the proposed re-zoning of its property.
Earlham College and Conner Prairie, Inc. cannot stand by and allow the re-zoning to damage the
value of the property and the investment in other endeavors that are related to it. This is nothing
more than an attempt to condemn and confiscate the property by the use and implementation of
an inappropriate zoning reclassification.
Please notify the undersigned immediately as to the status of this request to table the
hearing scheduled for July 8, 2003. In addition, it is strongly urged that you forward a copy of
this letter to the City's legal representatives so that they can contact the undersigned to discuss
this matter further.
Very truly yours,
William E. Wendling, Jr.
CAMPBELL KYLE PROFFITT LLP
William E. Wendling; Jr.
John S. Terry
CAMPBELL KYLE PROFFTIT tLP
ATTORNEYS AT LAW
CAMPBELL KYLE PROFFITT L[.P
ATTORNEYS AT LAW
Suite 400
650 East Carmel Drive
Carmel, Indiana 46032
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RECFIVED ~~
JUL z zcc3
DOCS
Mr. Michael Hollibaugh
Director Carmel Department of Community Services
Carmel City Hall
Third Floor
1 Civil Square •
Carmel, IN 46032
I~I~~I~II~~II~~~~~II~~~I~I~I~I~I