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HomeMy WebLinkAboutPacket 10-15-12 City CouncilTO: FROM: SUBJECT: DATE: MEMORANDUM Carmel City Council Adrienne Keeling , Department of Community Services Z- 558 -12, As Amended October 9, 2012 Please find the attached information on the following item forwarded by the Plan Commission. This item will appear on your October 15th agenda. Returned to the Council with a disapproval of the amendments: Ordinance Z- 558 -12, As Amended (Docket No. 12010005 OA): Patch Ordinance IX The following information outlines the Plan Commission's response to the amendments adopted by the Carmel City Council. Most of the Council's amendments were accepted; however, there were two sections with which the Plan Commission disagreed, resulting in their disapproval pursuant to IC 36 -7 -4 -607. SUBDIVISION WAIVERS: Please find attached a Memorandum from John R. Molitor, Counsel to the Carmel Plan Commission, regarding the Authority to Grant Waivers from the Subdivision Control Ordinance. Alternate language is suggested which would conform to Indiana Code. COMMITMENTS: The Plan Commission believed that requiring written commitments prior to a final vote could be problematic because there are instances where commitments are proposed and agreed upon at a meeting in the moments leading to a vote. Instead, the Plan Commission respectfully suggests, as shown below, an alternative in which subsequent approvals (such as development plans, secondary plats, building permits, etc.) are withheld pending the recording of the commitment without delaying the actual vote. Additionally, a petitioner would face approval nullification if the commitment is not recorded within 90 days. 31.06.05 Rules Governing Commitments. In addition to the requirements of IC 36 -7-4 -1015, all Commitments shall comply with the following: 1. Form. A Commitment must be in substantially the form set forth in the Commission's Rules of Procedure, and must identify any specially affected persons or class of specially affected persons who may enforce the Commitment. A Commitment must authorize its recording by the Director in the Office of the Hamilton County Recorder. All necessary subsequent approvals, including but not limited to Development Plans, Plats, and Improvement Location Permits will be withheld pending receipt of the recorded Commitment- Failure to return a recorded Commitment within ninety (90) days shall nullify the Commission's approval. 2. Recording; Copies. A Commitment shall be recorded in the office of the Hamilton County Recorder and takes effect upon the adoption of the proposal to which it relates. Following the recording of a Commitment, the Director shall return the original recorded Commitment to the owner and shall retain a copy of the recorded Commitment in the Commission's file. The information on this item has been arranged in the following order: 1. Copy of PC Certification of Disapproval (45 -day period ends November 16, 2012) 2. John Molitor Memorandum regarding Subdivision Waivers 2012 1015. 1- 558 -12: Council Report regarding PC Disappmval.docx Page 1 CERTIFICATION OF THE CARMEL PLAN COMMISSION'S RECOMMENDATION ON THE PETITION OF THE CITY OF CARMEL TO AMEND THE ZONING ORDINANCE PURSUANT TO INDIANA CODE 36 -7 -4 -605 ORDINANCE Z- 558 -12 (As Amended): Patch IX An Ordinance to Amend Subdivision Control Ordinance Chapter 3: General Provisions and Chapter 7: Open Space Standards for Major Subdivisions. The Ordinance also Amends Zoning Ordinance Chapter 2: Compliance with the Regulations, Chapter 3: Definitions, Chapter 5: S -1 /Residence District, Chapter 6: S- 2/Residence District, Chapter 7: R -1 /Residence District, Chapter 8: R- 2 /Residence District, Chapter 9: R -3 /Residence District, Chapter 10: R- 4/Residence District, Chapter 20A: I -1 /Industrial District, Chapter 20G: Old Meridian District, Chapter 21: Special Uses & Special Exceptions, Chapter 23B: US Highway 31 Corridor Overlay Zone, Chapter 23C: US Highway 421 — Michigan Road Corridor Overlay Zone, Chapter 23F: Carmel Drive — Range Line Road Overlay Zone, Chapter 24: Development Plan and Architectural Design, Exterior Lighting, Landscaping & Signage Regulations, Chapter 25: Additional Use Regulations, Chapter 26: Additional Height, Yard, Lot Area and Buffering Regulations, Chapter 31: General Provisions and Appendix A: Schedule of Uses. To: The Honorable Common Council Of the City of Carmel Hamilton County, Indiana Dear Members: The Carmel Plan Commission offers you the following report on the amendments to the petition (Docket No. 12010005 OA) to Amend a variety of Subdivision Control and Zoning Ordinance Chapters, known as Patch Ordinance IX. The Carmel Plan Commission DISAPPROVES the amendments. At its regular meeting on September 18, 2012 the Commission voted nine (9) in Favor, zero (0) Opposed, zero (0) Abstaining, to forward to the Common Council Ordinance Z- 558 -12 As Amended with a Disapproval of the amendments, due to the following reasons: • Pursuant to Indiana Code 36- 7- 4- 702(c), the Plan Commission has the discretion to grant waivers from the standards fixed in the Subdivision Control Ordinance without limit; and, pursuant to Indiana Code 36- 7- 4- 201(a), Indiana's Home Rule Law does not authorize the Common Council to alter state law in this regard (SCO, 3.07: Waivers) • In some cases Commitments are agreed upon at the meeting, so it could be problematic to delay a vote for the next meeting. Instead, subsequent approvals would be withheld, and the approval ultimately revoked in 90 days (ZO, 31.06.05: Rules Governing Commitments) Please be advised that by virtue of the Commission's Disapproval, pursuant to IC 36- 7- 4- 607(e)(4)(B), the Council has forty -five (45) days to confirm its vote on Z- 558 -12 As Amended. If the Council fails to act, then Ordinance Z- 558 -12 becomes effective as originally Certified by the Commission on May 24, 2012. Forty -five days from the date of this Certification (October 2, 2012) is Friday, November 16, 2012. Ra)nona Hancock, Secretary Carmel Plan Commission Dated: October 2, 2012 2012 -1002! Z -558 12, As Amended; PC ReCertification.docx CARMEN, PLAN COMMISSION BY:" an, President ' L I :E 100 1101 MEMORANDUM TO: Douglas C. Haney City Attorney FROM: John R. Molitor Counsel to the Carmel Plan Commission DATE: October 9, 2012 RE: Proposed Amendments to the Subdivision Control Ordinance Regarding the Authority to Grant Waivers Background of Issue Pending again before the Common Council is a proposed text amendment (Z- 558 -12, deemed the "PATCH IX" ordinance) to the City's zoning and subdivision control ordinance which, among other things, includes changes relating to the Plan Commission's authority to grant "waivers" from the standards contained in the subdivision control ordinance. After PATCH IX was favorably recommended by the Plan Commission pursuant to I.C. 36- 7- 4- 607(e), the Common Council took PATCH IX under advisement pursuant to I.C. 36- 7- 4- 607(e)(4) and proposed that Section 3.07 of the subdivision control ordinance should be amended to read as follows: 3.07 Waivers. [Council Version] 3.07.01 Pursuant to I.C. 36 -7 -4 -702, the Commission may, after a public hearing, waive any of the standards fixed in this Ordinance. However, in terms of modifying any quantitative or dimensional requirement (lot area, width, setbacks, etc., excluding density), such modification may not be greater than ten percent (10 %) in aggregate. Cumulatively, quantitative or dimensional modifications greater than ten percent (10 %) must be ratified by the Council. 3.07.02 Any approval to grant a waiver shall be subject to the following criteria: 1. The proposal shall be in harmony with the purposes and the land -use standards contained in the Comprehensive Plan. In the event that a City -wide policy and area - specific policy conflict, the area- specific policy shall apply. 2. The proposal shall enhance the subdivision plan, and in no way be detrimental to any part of the plan or nearby area surrounding the subject property. 3. The proposal shall not produce lots or street systems that would be impractical or detract from the appearance of the subdivision plan, and shall not adversely affect emergency vehicle access or deprive adjoining noncommercial properties of reasonably adequate light and air. 4. The applicant shall demonstrate that the proposed waiver will produce better results, from the Commission's perspective, and represent the minimum waiver necessary. 3.07.03 If the Commission determines that the applicant has met his /her burden, it may grant a waiver under this section. As an additional condition of granting a waiver, the Commission may allow or require a commitment to be made by the applicant under I.C. 36 -7 -4 -1015. Pursuant to I.C. 36- 7- 4- 607(e)(4), the Council then returned PATCH IX to the Plan Commission for its further consideration. I advised members of the Plan Commission that certain provisions of the Council's proposal conflicted with the State's Local Planning and Zoning Law, and they directed the staff to prepare a further amendment to Section 3.07 which would conform to State Law. Accordingly, pursuant to I.C. 36-7-4 - 607(e)(4)(B), the Plan Commission has now disapproved the Council's proposed amendment, and instead it has recommended to the Council that Section 3.07 should be amended to read as follows: 3.07 Waivers. [Commission Version] 3.07.01 Pursuant to I.C. 36 -7 -4 -702, the standards fixed in the subdivision control ordinance may be waived by the Commission (or plat committee acting on the Commission's behalf); however, the plat must still meet all applicable standards prescribed in the zoning ordinance (other than standards modified by variance in accordance with the I.C. 36 -7 -4 -900 series). As a condition of granting a waiver under this subsection, the Commission may allow or require a commitment to be made by the applicant under I.C. 36 -7 -4 -1015. Pursuant to I.C. 36- 7- 4- 607(e)(4)(B), it is now up to the Council whether to accept the final recommendation of the Plan Commission or to confirm its original amendment despite the disapproval of the Plan Commission. Legal Analysis In my opinion, the Council Version of Section 3.07 conflicts with the State's Local Planning and Zoning Law (I.C. 36 -7 -4), because it assigns to the City's legislative body a role in the administrative decision whether standards fixed in the City's subdivision control ordinance may be waived. Under state law, as described below, only the Plan Commission may exercise the waiver power: 1. Directly on point is I.C. 36- 7- 4- 702(c), which specifically grants waiver discretion to the Plan Commission (or plat committee acting on the Commission's behalf). The provision provides no role for the City's legislative body in this regard: (c) The standards fixed in the subdivision control ordinance under subsection (b) may be waived at the discretion of the plan commission (or plat committee acting on the commission's behalf); however, to be approved, the plat must still meet all applicable standards prescribed in the zoning ordinance (other than standards modified by variance in accordance with the 900 series of this chapter). As a condition of granting a waiver under this subsection, the commission or committee may allow or require a commitment to be made under section 1015 of this chapter. [emphasis added] 2. I.C. 36- 7- 4- 918.5(c), which appears in the statutory series that pertains to the Board of Zoning Appeals, buttresses the above point: (c) Only the plan commission (or plat committee acting on the commission's behalf) may grant a waiver from standards that are fixed in the subdivision control ordinance, as provided in section 702(c) of this chapter. [emphasis added] 3. The Common Council cannot override or ignore provisions of the Local Planning and Zoning Law, because the State's Home Rule Law (specifically, I.C. 36 -1- 3-6) does not apply to the Local Planning and Zoning Law, pursuant to I.C. 36-7-4 - 201(a): (a) For purposes of IC 36- 1 -3 -6, a unit wanting to exercise planning and zoning powers in Indiana must do so in the manner provided by this chapter. Based on the above, the Plan Commission has now recommended that Section 3.07 of the subdivision control ordinance should essentially just repeat the statutory language of I.C. 36- 7- 4- 702(c) above. This recommendation would be well taken.