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Amendment to Comp Plan 1993 Please c 4/ i( MEMORANDUM R TO: Mayor Johnson �c Members of the Common Council �,,r�. Members of the Plan Commission �i�I° FROM: Steven M. Brown C* DATE: December 9, 1992 RE: Amendment of the Comprehensive Plan and Textual Amendment to the Zoning Ordinance Classification S -1 I have been asked by the Executive Committee of the Plan Commission "Commission to give guidance as to the steps the Commission should follow in order to mitigate the opportunities for procedural challenges in future actions on the matters referenced above. I generally view the role of a lawyer as one of raising issues, presenting alternatives and letting the client make choices based on the information presented. That is the approach I have followed up to this point, and my previous memorandum dated November 16, 1992, was certainly meant to raise concerns for your consideration. Up until now I have sensed a resolve to "push ahead" and get something passed for a variety of reasons. The issues I have pointed out were meant to help you move ahead on an informed basis, if indeed you were going to move ahead quickly. To the extent I now explain to you the procedural steps I would recommend, they will be based on legal principles, and they will certainly slow down this process, but it will still be up to you to decide if this is the approach you want to take or something less conservative. The course of action I outline will be based primarily on the statutes and ordinances which set the parameters for your actions. As to potential substantive attacks on the proposed S -1 ordinance, I think my November 16th memorandum guides you in the thought process as to the rationale for your actions. Background For Comprehensive Plan Adoption and Amendment. Advisory Citizen Committee. Among other areas of responsibility the "advisory" Commission shall make recommendations to the legislative body "Council concerning the adoption of the Comprehensive Plan, ordinances and amendments. Indiana Code 36 -7 -4 -405. The Commission may establish an advisory committee of citizens to assist in interim study and such a group can make recommendations on matters of zoning and land use planning to the Commission. I.C. 36 -7 -4 -407. It has been the past practice of the Commission to utilize this method when amending or updating the Comprehensive Plan, publicized over a series of hearings in order to insure a complete cross section of input from within the community. Since you are asking me, this is not a necessary step, but one which I would recommend, noting however that it would probably add a month or so to the process. You do have the right to determine the time and the type of notice you think is sufficient for these public input hearings. These are not official public hearings. Comprehensive Plan as the Foundation for Zoning Ordinance. After a Comprehensive Plan is approved for a jurisdiction, each governmental entity within the territorial jurisdiction where the Plan is in effect shall give consideration to the general policy and pattern of development set out in the Plan when adopting, amending or repealing zoning ordinances. I.C. 36-7-4 504(a)(3). I.C. 36 -7 -4 -603 requires that the Commission and the Council pay reasonable regard to, among other things, the Comprehensive Plan. These statutes and the underlying requirement that a community can't even have a zoning ordinance to begin with, until it has a Comprehensive Plan in place I C 36 -7 -4- 601) are the reasons why I have been recommending that it is best to amend the Comprehensive Plan first, and then go forward with any amendments to the S -1 zoning ordinance in a consistent fashion with the Comprehensive Plan. I have alluded to more of the rationale for this concept in my memo of November 16th. Amending the Comprehensive Plan. An amendment to the Comprehensive Plan should be done as follows pursuant to I.C. 36 -7 -4 -500 et seq. 1) The Council may direct the Commission to prepare an amendment and submit it to them for approval. (This direction was made in early 1992.) 2) Before approval of a Comprehensive Plan the Commission must give notice and publish notice pursuant to statute of one or more public hearings on the plan amendment. This process can be very capably carried out by the DOCD staff if directed to do so. The Commission could vote on an amendment to the Plan at the same night a public hearing is held, if desired. 3) If the Commission approves the amendment to the Plan it shall certify the approval and pass it to the Council. 4) After certification is received by the Council, it may adopt a resolution approving, rejecting or amending the Plan amendment. Such approval requires only a majority vote, and is not subiect to approval or veto by the Mayor. The Mayor need not even sign it. As I interpret City Code §3 -32, the Comprehensive Plan would qualify as a "textual amendment to the City Code, Chapter 10" and therefore would require a public hearing at the Council meeting, noticed pursuant to §3 -32(b) and (c). 5) The amendment is effective upon approval of a resolution by the Council. The Clerk of the Council must then place one copy of the amendment to the Comprehensive Plan on file in the office of the Hamilton County Recorder. Our existing Plan and any other amendments thereto should already be on file. Commission Should Come Up With Amendment It Can Approve. If the Council rejects or amends the certified Plan amendment that the Commission gives it for approval, it would be returned to the Commission for further action. I.C. 36 -7- 4 -510. An interesting situation arises if the proposed amendment cannot receive a majority vote for approval by the Commission. Recall that I.C. 36 -7 -4 -405 describes the "advisory" Commission making "recommendations" to the Council concerning "Comprehensive Plan amendments I.C. 36 -7 -4 -501 states that "the Plan Commission shall prepare the Comprehensive Plan I.C. 36 -7 -4 -508 states that the Commission "may approve the Comprehensive Plan and upon approval shall certify it to each participating legislative body." 2 Normally, it is possible for a petition to be passed on to the Council upon a negative recommendation under the Commission's Rules of Procedure "Rules (Article IX, Section 6). Under the Rules this includes recommendations on text amendments to the Comprehensive Plan and zoning ordinance amendments. However, I.C. 36 -7 -4 -509 and 510 state that the "legislative body may adopt a resolution approving, rejecting or amending the plan" which the Commission certified. "If the legislative body, by resolution, rejects or amends the Comprehensive Plan, then it shall return the Comprehensive Plan to the Commission for its consideration, with the written statement of the reasons for its rejection or amendment." The Commission then has a period of time to reconsider the action. But ultimately, if the Commission does not approve the rejection or amendment that the Council made, or takes no action, the action by the legislative body (amending it for example) would stand if it receives another confirming vote of the Council. My advice would be for the Commission to come up with a Plan amendment it can approve and send on to the Council. If that Plan amendment is not what the Council wants, it can approve an amendment eventually over the Commission's advice anyway. Procedural Applications. The following procedure applies to the official action to be taken on the Comprehensive Plan amendment. Pursuant to statute and the Rules there are fifteen members on the Commission. A quorum must be present, and a simple majority (8 votes) As necessary to take official action. The Commission itself can be the petitioner in this case, (unless a special advisory committee is appointed whereby they could be the petitioner) and will with the help of DOCD staff be responsible for filing two copies of the proposed Plan amendment with DOCD for a docket number. DOCD can waive the forty -five day in advance of hearing filing requirement. The Commission itself will introduce the item when on the agenda, hold the public hearing (or hearings) and ultimately vote. Public Notice. The notice necessary for the Comprehensive Plan process does not seem to be as onerous as that for a textual amendment to the zoning ordinance. I.C. 36 -7 -4 -507 requires that notice be given of the public hearing(s) on the plan, and that adequate publication in accordance with I.C. 5- 3-1 be given. It seems far beyond the legislative intent that this statute could have meant any more personal notice to the community as a whole than published notice and other public announcements (which you could do at your December 15th meeting). Because the Rules are more restrictive on the advance publication than the ten days required by statute, I would recommend that notice of the public hearing on the Plan amendment be published thirty days in advance. It needs to be published one time, and the Rules require that publication be in both the Noblesville Ledger and either the Carmel Daily Ledger or Carmel News Tribune. Pursuant to a combination between the statute and the Commission's Rules, the published notice must include: Time and place of each public hearing. Where the entire Comprehensive Plan and proposed amendment is on file. That it may be examined in its entirety at least ten (I would substitute thirty) days prior to the hearing. Docket number and name of petitioner. The text of the proposed amendment to the Plan since it is short and it will call attention to the geographical area affected. In this case, though not a metes and bounds description, the area described should suffice for a legal description. 3 That any person may offer verbal comments or may file written comments prior to or at the hearing. Published notice pursuant to §3 -32 of the City Code would also be required, in my opinion, before the public hearing required by the Council. Background For S -1 Overlay Ordinance. Substantive Concerns. As to my recommendation on the S -1 procedure, my November 16th memo spoke of concerns on the notice process and on the rational nexus for the exercise of your police power. While the "nexus" discussion goes more to the substantive portion of the ordinance, and is certainly more subjective and difficult to predict in terms of judicial scrutiny, the real issue I am to address is the process to enact the proposed ordinance. A Textual Amendment to the Zoning Ordinance. In initiating the process of the amendment or repeal of a zoning ordinance a number of statutes in the 600 series of I.C. 36 -7 -4 work together to determine the procedure. I.C. 36 -7 -4 -607 provides that whether this process starts by Commission initiative, or at the request of the Council, the proposal must go before the Commission for "consideration and recommendation" before any final action is taken by the Council. Procedural Applications. I.C. 36- 7- 4- 602(b) sets forth the applicable procedure. The Commission must set forth the proposal so that it is consistent with Section 601 which provides the broad parameters upon which a zoning ordinance can be adopted. It includes the underlying principle of "promoting the public health, safety, comfort, morals, convenience and general welfare" of the citizens within the jurisdiction. The Commission and Council must comply with Section 603 which requires that reasonable regard be given to the Comprehensive Plan; current conditions and the character of current structures and uses in each district; the most desirable use for which the land in each district is adapted; the conservation of property values throughout the jurisdiction; and responsible development and growth. Of course the public must be given adequate notice of the proposed ordinance. An in -depth discussion of this subject will follow. After the Commission takes official action (simple majority vote) on the proposed ordinance, the Council must take action based on Section 607 and the proper action depends on whether the Commission approved the ordinance, recommended against the ordinance, or made no recommendation. The Council must vote on the ordinance within ninety days following the certification of the Commission to the Council of its action. At the first regular meeting after the certification, the Council may adopt, reject or amend the proposed ordinance (remember the Council requires a full public hearing). The Council shall give notice under I.C. 5- 14 -1.5 -5 of its intention to consider the proposal at that meeting (on Agenda and posted). The Council may: approve the ordinance at which time it takes effect. fail to take action within ninety days at which time the a Commission approval would stand. reject or amend the proposal which sends it back to the Commission for further consideration. 4 Ultimately, the Council can pass the ordinance in the form that it desires if it has the votes. (See City Code §3 -22 where Council requires 5 votes to approve an ordinance over the negative recommendation of the Plan Commission.) Public Notice. The Commission must give notice and hold a public hearing under Section 604 which requires the following: 1) Publication notice of public hearing in accordance with I.C. 5 -3 -1. (Published one time 30 days prior to hearing in both Noblesville Ledger and either Carmel Daily Ledger or Carmel News Tribune.) 2) Publication which includes the following items of information; geographic area to which the change applies. summary of the subject matter contained in the proposal which describes any new or changed provisions. where a copy is on file for examination prior to the hearing. that written objections to the proposal filed with the Plan Commission's secretary prior to the hearing will be considered. that oral comments concerning the proposal will be heard. that the hearing may be continued from time to time as necessary. Supplemented by the Commission's Rules, the following items should also be included: docket number general legal description name of agency initiating the action time and place of the hearing The crucial statement in Section 604 is that the Commission shall also provide for due notice to interested parties at least ten (10) days before the date set for the hearing. (Commission Rules have increased this to thirty (30) days.) The Commission shall by rule determine who are interested parties, how notice is to be given to them, and who is required to give that notice." Section 604. The same information in the published notice is required in the written notice. The Commission's Rules have done just that in Article VII, Section 6 through 13: the party responsible to publish notice and give written notice is the petitioner (Commission in this case). "interested persons shall be the owners of real estate lying within six hundred feet of the subject property or to a depth of two property ownerships, whichever is less," as shown on a certificate issued by the Hamilton County Auditor within forty -five days of the date of the hearing. the method of notice is by certified mail thirty days prior to the hearing. in this case because the proposed Overlay Zone touches the county boundaries of Marion and Boone, notice must be given to those property owners within one eighth of a mile into the adjacent property or to a depth of two ownerships, whichever is less. 5 Because the proposed boundaries of the Overlay Zone involves two additional counties and their respective auditors, I suggest you may want to consider some natural boundary to the west and south which will enable the accomplishment of your objectives, yet keep the project within the notice bounds of Hamilton County. However, there may not be such natural boundaries in these areas which are appropriate. Another alternative would be to utilize the waiver of notice provision for those individuals for which there is the manpower to approach (pursuant to Rule 12), and if this is manageable, many waivers may be obtainable which would reduce the cost of certified mail. A cost benefit analysis will have to be done to see if this is feasible and it may make the overall notice process potentially more difficult because now the effort will have to be made to back out those who have waived notice. Probably the most effective way to identify the properties interested will be to get a computer printout of all of the properties on the tax roles in the western portion of Clay Township. Don't forget the tax exempt properties. This would probably provide most of the names needed, and then remaining interested properties if any, can be identified. I do recommend that the Commission follow this notice procedure of certified mail notice. It is consistent with the actions taken when the Meridian Corridor Overlay Zone and the 421 Overlay Zone were enacted, and it is only the scope of this project that seems to make this any different. The volume of the project does not in my mind lessen the fundamental due process protections owed to property owners. For what it is worth, Section 604(e) states that a "zoning ordinance may not be held invalid on the grounds that the Planning Commission failed to comply with the requirements of this section if the notice and hearing substantially complied with this section." Proposed Timeframe. Assuming the Commission approves a Plan amendment at the January meeting, and the Council subsequently adopts and approves the amendment, it could be in place prior to the February, 1993 Commission meeting. Over the next month (between now and mid January) preparations could be made for notices regarding the S -1 textual amendment to the zoning ordinance and public hearings could initiate at the February Commission meeting with subsequent Council hearings and enactment. Presumably, the entire Comprehensive Plan amendment and the S -1 Overlay ordinance could be in place by mid -March 1993, if you all choose to proceed that quickly, and if you meet your time deadlines accordingly. In closing, I know this is a lengthy memorandum. It is intended to be comprehensive on the procedure to enact a Comprehensive Plan amendment and a textual zoning ordinance amendment. I recommend careful attention and action substantially consistent with that which I have outlined herein. For your information, I have attached a copy of a proposed 1993 Comprehensive Plan Amendment, a Resolution for the Council to adopt the amendment, and a revised proposed S -1 ordinance, respectively Exhibits "A "B and "C 6 EXHIBIT "A" AMENDMENT TO COMPREHENSIVE PLAN UPDATE, CITY OF CARMEL/CLAY TOWNSHIP, 1993 1993 Comprehensive Plan Update City of Carmel /Clay Township Introduction /Overview The most recent amendment to the Comprehensive Plan for the City of Carmel and Clay Township was entitled "Comprehensive Plan Update, City of Carmel /Clay Township, 1990" (hereinafter the "1990 Pfan Amendment That document amended the 1985 Update to the Comprehensive Plan, and to the extent there are matters in the 1985 Update that are not changed by the 1990 Plan Amendment, the two documents work together to form the foundation for land use planning and zoning regulation in the Carmel /Clay area. The 1990 Plan Amendment contained a provision on "Existing Zoning" in Part I, Section 111, Subsection D which designated certain groupings of zoning categories into major land use categories based on the official zoning map (map was revised March 7, 1988). One such category of residential uses was designated Low Density Residential "LDR including the land with a zoning classification of S -1. In certain areas of Clay Township due to the inadequacy of the infrastructure and roadways, the significant impact of excessive growth on the school population, the desire for open space and green space, and the nexus between these desires and impacts and the protection of the health, safety and welfare of the citizens of the Carmel -Clay community, making another amendment to the Comprehensive Plan necessary in order to provide for low density residential development compatible with these desires of, and protections for the citizens. It is the intent and purpose that with respect to the goals, objectives and policies concerning future development in that area of Clay Township designated "Low Density Residential" with underlying zoning of S -1, west of the center line of Spring Mill Road to the Hamilton /Boone County line between the northern and southern boundaries of Clay Township, that development shall be consistent with the desires and policies expressed above. Therefore it is the opinion of the Plan Commission, which has studied this issue thoroughly, that it is in the best interest of the Citizens of Carmel and Clay Township that the 1990 Plan Amendment be amended as follows: Part One: Concept Plan. III Development Patterns. F. Land Use /Development Issues. Zoning. "S -1" zoning is a major concern relating to the future predictability and management of development density in the community due to the number of acres zoned S -1. The Plan Commission's opinion is that provisions of areas for development of low density residential uses is important to the community. In lieu of rezoning any parcels of land at this time the Plan Commission has established the following guidelines when dealing with the potential inconsistencies with the "LDR" plan designation and underlying zoning; In areas of the community where the "LDR" plan designation falls on land zoned S -1, west of the center line of Spring Mill Road to the Hamilton /Boone County line between the northern and southern boundaries of Clay Township, it is the intent of the Plan Commission that development density should average no more than 1.0 units per gross acre. In all other "LDR" designated S -1 land lying in other portions of the Carmel -Clay Township area it is the intent of the Plan Commission that development density should average no more than 1.5 units per gross acre. For "LDR" plan designation on all S -2 lands in the Carmel -Clay Township area it shall remain the intent of the Plan Commission that development density should average no more than 1.8 units per gross acre. Remainder of 1990 Plan Amendment Incorporated By Reference. All additional text, key findings, concept plans, technical plans and maps (Recommended Land Use and Thoroughfare Plan) comprising the "Amendment to Comprehensive Plan Update, City of Carmel /Clay Township, 1990" not inconsistent with the amended language stated above, shall be incorporated by reference into the "Amendment to Comprehensive Plan Update, City of Carmel /Clay Township, 1993 and made a part hereof and shall remain in full force and effect. EXHIBIT B RESOLUTION WITH RESPECT TO THE ADOPTION OF THE "AMENDMENT TO COMPREHENSIVE PLAN UPDATE, CITY OF CARMEL /CLAY TOWNSHIP, 1993" WHEREAS, the Plan Commission of the City of Carmel /Clay Township is the governmental body duly charged with preparation of the Comprehensive Plan for the City of Carmel and Clay Township, and any amendments and updates from time to time thereto; and WHEREAS, the Plan Commission of the City of Carmel /Clay Township has held public hearings on an amendment to the Comprehensive Plan currently in effect for the purpose of considering proposed changes to the text of the Amendment to Comprehensive Plan Update, City of Carmel /Clay Township, 1990, and has made a favorable recommendation to the Common Council of the City of Carmel to approve such an amendment entitled Amendment to Comprehensive Plan Update, City of Carmel /Clay Township, 1993" for all of the reasons stated in said 1993 Amendment, and the Common Council having had public hearings on the same, duly noticed. NOW, THEREFORE BE IT RESOLVED, by the Common Council of the City of Carmel, Indiana, that the "Amendment to Comprehensive Plan Update, City of Carmel /Clay Township, 1993 attached hereto as Exhibit "A be hereby duly adopted and placed in effect for the Carmel /Clay Township jurisdiction, and that said Plan be placed on file in the office of the Recorder of Hamilton County, Indiana. Dated this day of 1993. "Common Council" Approve Disapprove ATTEST: Susan Jones, Clerk /Treasurer Attach 1993 Plan Amendment qC 'ANN P EXHIBIT "C" ORDINANCE NO. Ordinance Amending the Carmel Clay Zoning, Ordinance Z -160. As Amended WHEREAS. the Common Council of the City of Carmel, Indiana, has enacted a zoning ordinance for Carmel and Clay Township, Hamilton County, Indiana, which is based on the elements and criteria established in the Comprehensive Plan, as amended and updated from time to time; and WHEREAS, an S -1 Overlay Residence District is needed to provide for development in certain defined areas of Clay Township which is consistent with the intent of the Comprehensive Plan, as amended by the "Amendment to Comprehensive Plan Update, City of Carmel /Clay Township, 1993" (hereinafter the "Comprehensive Plan and WHEREAS, this ordinance constitutes the least restrictive method to accomplish such consistency, NOW THEREFORE, be it ordained by the Common Council of the City of Carmel, Indiana, that: Section 5.0 "S -1 Residence District" shall be amended to add the following section 5.5 "S -1 Overlay Residence District" as follows: 5.5 S -1 Overlay Residence District 5.5.1 Purpose. Intent and Authority. Land in the S -1 residence zoning district has been developed with lots of varying size. with some lots being substantially larger than the minimum required. Many, if not most, of the larger lots result from developments in areas without public water or sanitary sewers, principally west of the centerline of Spring Mill Road to the Hamilton/Boone County line between the northern and southern boundaries of Clay Township. For purposes of Section 5.5 of this ordinance, this area of characteristically large lot development shall be referred to as the "S -1 Overlay Residence District and also forms the boundary of said District. As utility service has been extended into the S -1 Overlay Residence District, potential lot sizes have been reduced to the minimum allowed in the S -1 residence zoning district creating a pattern of development resulting in densities inconsistent with the Comprehensive Plan and discordant with established patterns of large lot development. It is the purpose and intent of this overlay ordinance to protect the public health, safety, comfort, convenience and general welfare by providing for the consistent and coordinated treatment of development within the S -1 district in the S -1 Overlay Residence District in order to ensure harmonious future development compatible with existing development. 5.5.2 Overall Maximum Gross Density. For any preliminary plat docketed in the S -1 Overlay Residence District after the day of 1993, the average density of the subdivision in the S -1 Overlay Residence District shall not be greater than 1.0 lot per gross acre of the subdivision. In designing the subdivision to achieve this average gross density, it is recognized that some lots may be smaller than one acre in size, but no lot shall be smaller than 15,000 square feet. recognized that some Lots may be smaller than one acre in size, but no lot shall be smaller than 15,000 square feet. 5.5.3 All prior ordinances, resolutions, or parts thereof which are inconsistent with any provision of this ordinance are subordinate to this ordinance or hereby repealed. 5.5.4 This ordinance shall be in full force and effect from and after its passage and signing by the Mayor. PASSED BY THE COMMON COUNCIL OF THE CITY OF CARMEL, INDIANA, this day of 1993. Presiding Officer Dated the day of 1993. Al I'EST: Susan W. Jones, Clerk/Treasurer PRESENTED by me to the Mayor of the City of Carmel, Indiana, on the day of 1993. By: Ted Johnson, Mayor, City of Carmel, Indiana Al IEST: Susan W. Jones, Clerk/Treasurer