Saturday, May 31, 2008
HOUSE BILL No. 1248
DIGEST OF HB 1248 (Updated February 7, 2000 5:43 PM - DI 84) Citations Affected: IC 13-26.
Synopsis: Regional water and sewer districts. Makes various changes to the notice requirements for establishing a regional water, sewage, and solid waste district. Provides that a district may not require a property owner to connect to the district's sewer system if (1) the property owner's septic system was installed not more than five years before the district's sewer system first became available for connection; (2) the property owner's septic system was new at the time of installation and was approved by the local health department; and (3) the property owner provides certification from the local health department or a registered professional engineer that the septic system is functioning satisfactorily. Provides that the exemption from mandatory connection extends for a period of three years beginning on the date the district's sewer system first becomes available for connection. Provides that a district may require a property owner who otherwise qualifies for the connection exemption to connect to the district's sewer system if the district credits part of the cost of the property owner's septic system against the debt service portion of the property owner's monthly bill. Requires the board of trustees of a district established after June 30, 2000 to consider the availability of and the advisability of using local, state, or federal loans or grants for
(Continued next page)
Effective: Upon passage; July 1, 2001.
Lytle, Mellinger , Kruse , Scholer
(SENATE SPONSORS _ NUGENT, LEWIS)
January 10, 2000, read first time and referred to Committee on Commerce and Economic Development. January 25, 2000, amended, reported _ Do Pass. February 1, 2000, read second time, amended, ordered engrossed. February 2, engrossed. February 7, 2000, read third time, passed. Yeas 81, nays 15.
SENATE ACTION February 10, 2000, read first time and referred to Committee on Rules and Legislative Procedure. February 15, 2000, amended, reported favorably _ Do Pass; reassigned to Committee on Environmental Affairs.
a project before issuing bonds for the project. Establishes an interim study committee to study all aspects of regional water, sewage, and solid waste districts. Adds three members of the general assembly as nonvoting members of the Lake Michigan marina development commission.
February 16, 2000
Second Regular Session 111th General Assembly (2000)PRINTING CODE. Amendments: Whenever an existing statute (or a section of the Indiana Constitution) is being amended, the text of the existing provision will appear in this style type, additions will appear in this style type, and deletions will appear in this style type.Additions: Whenever a new statutory provision is being enacted (or a new constitutional provision adopted), the text of the new provision will appear in this style type. Also, the word NEW will appear in that style type in the introductory clause of each SECTION that adds a new provision to the Indiana Code or the Indiana Constitution.Conflict reconciliation: Text in a statute in this style type or this style type reconciles conflicts between statutes enacted by the 1999 General Assembly.
HOUSE BILL No. 1248
A BILL FOR AN ACT to amend the Indiana Code concerning environmental law.
Be it enacted by the General Assembly of the State of Indiana:
SOURCE: IC 13-26-2-6; (00)EH1248.1.1. --> SECTION 1. IC 13-26-2-6 IS AMENDED TO READ AS FOLLOWS [EFFECTIVE UPON PASSAGE]: Sec. 6. (a) Except as provided in section 9 of this chapter, the hearing officer shall fix a time and place inside or within ten (10) miles of the proposed district for the hearing on the petition for the establishment of the proposed district. any matter for which a hearing is authorized under this chapter. (b) The hearing officer shall have make a reasonable effort to provide notice of the hearing given as follows: (1) By publication one (1) time of notice two (2) times each week for two (2) consecutive weeks in a newspaper at least two (2) newspapers of general circulation in each of the counties, in whole or in part, in the district. The publication of notice must, at a minimum, include a legal notice and a prominently displayed three (3) inches by five (5) inches advertisement. (2) By certified mail, return receipt requested, mailed at least two (2) weeks before the hearing to the following: (A) Each eligible entity involved. The fiscal and executive
bodies of each county with territory in the proposed district. (B) The executive of each entity. all other eligible entities with territory in the proposed district. (C) The department of natural resources if the department of natural resources is involved. state and any of its agencies owning, controlling, or leasing land within the proposed district, excluding highways and public thoroughfares owned or controlled by the Indiana department of transportation. (D) Each sewage disposal company holding a certificate of territorial authority under IC 8-1-2-89 respecting territory in the proposed district. (3) By making a reasonable effort to provide notice of the hearing by regular United States mail, postage prepaid, mailed at least two (2) weeks before the hearing to each freeholder within the proposed district. (4) By including the date on which the hearing is to be held, a brief description of: (A) the subject of the petition, including a description of the general boundaries of the area to be included in the proposed district; and (B) the locations where copies of the petition are available for viewing.
SOURCE: IC 13-26-5-2; (00)EH1248.1.2. --> SECTION 2. IC 13-26-5-2 IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2001]: Sec. 2. A district may do the following: (1) Sue or be sued. (2) Make contracts in the exercise of the rights, powers, and duties conferred upon the district. (3) Adopt and alter a seal and use the seal by causing the seal to be impressed, affixed, reproduced, or otherwise used. However, the failure to affix a seal does not affect the validity of an instrument. (4) Adopt, amend, and repeal the following: (A) Bylaws for the administration of the district's affairs. (B) Rules and regulations for the following: (i) The control of the administration and operation of the district's service and facilities. (ii) The exercise of all of the district's rights of ownership. (5) Construct, acquire, lease, operate, or manage works and obtain rights, easements, licenses, money, contracts, accounts, liens,
books, records, maps, or other property, whether real, personal, or mixed, of a person or an eligible entity. (6) Assume in whole or in part any liability or obligation of: (A) a person; (B) a nonprofit water, sewage, or solid waste project system; or (C) an eligible entity; including a pledge of part or all of the net revenues of a works to the debt service on outstanding bonds of an entity in whole or in part in the district and including a right on the part of the district to indemnify and protect a contracting party from loss or liability by reason of the failure of the district to perform an agreement assumed by the district or to act or discharge an obligation. (7) Fix, alter, charge, and collect reasonable rates and other charges in the area served by the district's facilities to every person whose premises are, whether directly or indirectly, supplied with water or provided with sewage or solid waste services by the facilities for the purpose of providing for the following: (A) The payment of the expenses of the district. (B) The construction, acquisition, improvement, extension, repair, maintenance, and operation of the district's facilities and properties. (C) The payment of principal or interest on the district's obligations. (D) To fulfill the terms of agreements made with: (i) the purchasers or holders of any obligations; or (ii) a person or an eligible entity. (8) Except as provided in section 2.5 of this chapter, require connection to the district's sewer system of property producing sewage or similar waste and require the discontinuance of use of privies, cesspools, septic tanks, and similar structures if: (A) there is an available sanitary sewer within three hundred (300) feet of the property line; and (B) the district has given written notice by certified mail to the property owner at the address of the property at least ninety (90) days before a date for connection to be stated in the notice. (9) Provide by ordinance for reasonable penalties for failure to connect and also apply to the circuit or superior court of the county in which the property is located for an order to force connection, with the cost of the action, including reasonable
attorney's fees of the district, to be assessed by the court against the property owner in the action. (10) Refuse the services of the district's facilities if the rates or other charges are not paid by the user. (11) Control and supervise all property, works, easements, licenses, money, contracts, accounts, liens, books, records, maps, or other property rights and interests conveyed, delivered, transferred, or assigned to the district. (12) Construct, acquire by purchase or otherwise, operate, lease, preserve, and maintain works considered necessary to accomplish the purposes of the district's establishment within or outside the district and enter into contracts for the operation of works owned, leased, or held by another entity, whether public or private. (13) Hold, encumber, control, acquire by donation, purchase, or condemnation, construct, own, lease as lessee or lessor, use, and sell interests in real and personal property or franchises within or outside the district for: (A) the location or protection of works; (B) the relocation of buildings, structures, and improvements situated on land required by the district or for any other necessary purpose; or (C) obtaining or storing material to be used in constructing and maintaining the works. (14) Upon consent of two-thirds (2/3) of the members of the board, merge or combine with another district into a single district on terms so that the surviving district: (A) is possessed of all rights, franchises, and authority of the constituent districts; and (B) is subject to all the liabilities, obligations, and duties of each of the constituent districts, with all rights of creditors of the constituent districts being preserved unimpaired. (15) Provide by agreement with another eligible entity for the joint construction of works the district is authorized to construct if the construction is for the district's own benefit and that of the other entity. For this purpose the cooperating entities may jointly appropriate land either within or outside their respective borders if all subsequent proceedings, actions, powers, liabilities, rights, and duties are those set forth by statute. (16) Enter into contracts with a person, an eligible entity, the state, or the United States to provide services to the contracting party for any of the following: (A) The distribution or purification of water.
(B) The collection or treatment of sanitary sewage. (C) The collection, disposal, or recovery of solid waste. (17) Make provision for, contract for, or sell the district's byproducts or waste. (18) Exercise the power of eminent domain. (19) Remove or change the location of a fence, building, railroad, canal, or other structure or improvement located within or outside the district. If: (A) it is not feasible or economical to move the building, structure, or improvement situated in or upon land acquired; and (B) the cost is determined by the board to be less than that of purchase or condemnation; the district may acquire land and construct, acquire, or install buildings, structures, or improvements similar in purpose to be exchanged for the buildings, structures, or improvements under contracts entered into between the owner and the district. (20) Employ consulting engineers, superintendents, managers, and other engineering, construction, and accounting experts, attorneys, bond counsel, employees, and agents that are necessary for the accomplishment of the district's purpose and fix their compensation. (21) Procure insurance against loss to the district by reason of damages to the district's properties, works, or improvements resulting from fire, theft, accident, or other casualty or because of the liability of the district for damages to persons or property occurring in the operations of the district's works and improvements or the conduct of the district's activities. (22) Exercise the powers of the district without obtaining the consent of other eligible entities. However, the district shall: (A) restore or repair all public or private property damaged in carrying out the powers of the district and place the property in the property's original condition as nearly as practicable; or (B) pay adequate compensation for the property. (23) Dispose of, by public or private sale or lease, real or personal property determined by the board to be no longer necessary or needed for the operation or purposes of the district.
SOURCE: IC 13-26-5-2.5; (00)EH1248.1.3. --> SECTION 3. IC 13-26-5-2.5 IS ADDED TO THE INDIANA CODE AS A NEW SECTION TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2001]: Sec. 2.5. (a) As used in this section, "septic system" includes privies, cesspools, septic tanks, and similar structures. (b) Except as provided in subsection (c), the district may not
require a property owner to connect to the district's sewer system and to discontinue use of a septic system if the following conditions are met: (1) The property owner's septic system was installed not more than five (5) years before the district's sewer system first became available for connection. (2) The property owner's septic system was new at the time of installation and was approved in writing by the local health department. (3) The property owner, at the property owner's own expense, obtains and provides to the district a certification from the local health department or a registered professional engineer that the septic system is functioning satisfactorily. (c) A property owner who qualifies for the exemption provided under this section may not be required to connect to the district's sewer system for a period of three (3) years beginning on the date the district's sewer system first becomes available for connection. The exemption does not apply to a subsequent owner of the property during the exemption period. A property owner has sixty (60) days from the date of the notice given under section 2(8) of this chapter to notify the district in writing that the property owner may qualify for the exemption. The property owner has an additional sixty (60) days from the date the district receives the property owner's original notification to provide to the district the certification required under subsection (b)(3). The district shall suspend the date proposed for connection in the notice given under section 2(8) of this chapter while a determination of the property owner's eligibility for the exemption is pending. (d) The district may require a property owner who qualifies for the exemption under subsection (b) to connect to the district's sewer system if the district credits the unamortized portion of the original cost of the property owner's septic system against the debt service portion of the customer's monthly bill according to the following STEPS: STEP ONE: Multiply the original cost of the property owner's septic system by a fraction, the numerator of which is ninety-six (96) months minus the age in months of the property owner's septic system, and the denominator of which is ninety-six (96) months. STEP TWO: The total credit the district may provide to a property owner shall equal four thousand eight hundred dollars ($4,800) or the result of STEP ONE, whichever is less.The district shall apportion the total credit amount as determined
in STEP TWO against the debt service portion of the property owner's monthly bill over a period to be determined by the district, but not to exceed twenty (20) years, or two hundred forty (240) months.
SOURCE: IC 13-26-10-20; (00)EH1248.1.4. --> SECTION 4. IC 13-26-10-20 IS ADDED TO THE INDIANA CODE AS A NEW SECTION TO READ AS FOLLOWS [EFFECTIVE UPON PASSAGE]: Sec. 20. (a) This section applies only to a district established after July 1, 2000. (b) Before issuing bonds under this article, the board must consider the availability of and the advisability of using local, state, or federal loans or grant funds for the project.
SOURCE: ; (00)EH1248.1.5. --> SECTION 5. An emergency is declared for this act.
Wednesday, May 28, 2008
Present: Fehrman, Chairman, Ullrich, Kraus, Morris, Barrott, Lansing, and Cheek.
Also Present: Pickens and Messmore
Commissioners Hughes and Thompson were in the audience.
1. David Bottorff of the AIC (Association of IN Counties) gave a 40-minute presentation on HEA (House Enrolled Act) 1001 and its affect on counties.
He referred to this as the most comprehensive change in government finance in years.
The Homestead credit was increased to over $650 million- a one- time shot this year- which is a 31% tax cut for homeowners. Renters deduction was increased to $3000 from $2500. There is an increase from 6 to 9% in earned income credits.
The circuit breaker- tax caps are 1% for homesteads, 2% for other residences, and 3% for commercial and industrial.
This year he said the 2% is in effect but most people won’t experience this because of the increase in homestead credit.
The biggest beneficiaries are commercial industrial.
For projects that are less than $12 million we still have the petition – remonstrance options. For projects OVER $12 million (UNLESS COURT MANDATED) we now have referendums- where we vote for them on a ballot. If approved by referendum these are outside the caps. (This was not explained fully- though the council had some paperwork on it handed out to them)
He noted that Dearborn would probably not be affected by the caps till 2010. There is a spreadsheet on the AIC website as to how counties are set up on this. Incorporated areas are more likely to be affected by caps because their taxes are higher.
They do have a Distressed Unit Appeals Board for relief from the circuit breaker if the unit loses too much income. However there will not be much granted IF the county has not enacted a LOIT (Local Option Income Tax) [NOTE: Relief is in the form of getting more money from taxpayers to pay for services. There is nothing in this law about SPENDING CUTS!]The state will pay for the homestead credit by increasing the sales tax to 7% and they will keep the homestead credit to buy down the levy.
Anderson and Shelbyville have NEW casino licenses and these will be used to help pay for the Family and Children’s Fund, the Health Care for the Indigent, the pensions for cities and towns, the incarceration of juveniles in the DOC (Dept of Corrections), and the school general fund.
The AIC wants the state to fund all schools with no levies. Cheek asked if this was an attempt to push school districts to consolidate. Answer- not intentionally, but…
There will also be a separate deduction for senior citizens under a certain income level. For homesteads everyone gets $45,000 off assessed value and then 35% etc of each increment after that. As AV (assessed value) goes down- then tax RATE goes up.
Most of the levies are repealed for new courts etc. NO SPENDING CAP WAS EVER PUT IN THIS LAW. But there are levy limits.
The county is allowed to have a non- binding review of all civil (city etc) budgets. They need to check on the schools and know what each is doing also. The school projects have different limits that put them on referendum- by grade ranges. The DGLF (formerly SBOA) approval is NOT necessary if the taxpayers approve a referendum.
SCHOOLS GET TO PUT A NON-VOTING MEMBER ON THE REDEVELOPMENT COMMISSIONS! This is an answer to the TIF’s and what they are costing schools.
LOIT is the same as last year but easier to adopt this and a safety tax.
LOIT is a way to redirect tax dollars from income to homestead credits. There is to be an annual meeting to decide whether or not to adopt LOIT. Deadlines are April to July 31- but this year it extends to Dec 31st. Employers have to separate county vs. state amounts on payroll.
County (township) assessors can serve out their term of office and still get paid for Level 2 certification additionally. (gives an extra $1000) Township assessors can also work for the county and not be considered two lucrative offices this year.
Revenue loss will pressure the counties to adopt LOIT. Individuals pay 84% of income taxes. Businesses pay 16%
2. Superior Court II- Sally Blankenship requested money for the guardian ad litem program ($14,500)plus part time and overtime wages. Approved with two nays from Cheek and Lansing.
3. Library budget for 2009 was approved by the Council and signed for Sally Stenger and Mary Alice Horton.
4. Ruth Ann Batta was granted $1500 for summer arts program (the $500 extra was to cover the two bus trips.) This was granted as two $750 checks for each of the two classes.
5. David Bartholomew of Bright EMS was supported by Jeff Hughes as he requested retroactively getting $24,000 for their 2007 contract that somehow was not filed that year. Tabled till the August meeting when it can be advertised to come out of county general fund.
6. Cathy Piche of YES Home was granted $2000 – ($1,000 for the Independent Living Program activities and $1,000 for the Pipe Dreams Program- trip to Chicago)
7. Don Townsend- Building Dept- requested funds for a truck for the Weights and Measures inspections. They carry 1500 lbs of weights and expensive gas cans etc. It was approved as a “not-to exceed $12,000” amount. Cheek advised him of a potential prospect for a good used truck.
8. Vera Benning represented the sewer district (DCRSD) request for two $810 bonds for herself and treasurer Barry Pruss and $904 for liability insurance. Total approved was $2524. [NOTE: Why is DCRSD still being supported by taxpayer funds from the county for basic expenses?]
9. Cary Pickens gave the info for Heffelmire who was absent for the County Farm request. They have $63,402 in their Fund 185 from the CRP and logging operations. They needed $16,000 from it for a mower and fencing. Approved.
10. Gary Hensley – Assessor- thanks Liz, Bill, and Dan for coming to the township assessor meeting.
He is requesting $11,592 for software maintenance from Mannitron caused by budget changes. He said there I $135,000 in cum reassessment that is not appropriated. Pickens said to stay out of county general as they will need 500,000 to cover the eventual shortfall for Family and Children. (Family and Children already owes the county $1.3 million)
The 14 township trustees are being eliminated and Hensley wants 2 full time assessors to take over those duties. He needs $45,009 for 2 assessors till the end of 2008 and $10,000 for licensing, computers, storage etc. There was a discussion on hiring the L-bg Township Assessor who is experienced in personal property assessment and has Level 2 certification. The other assessor is not interested. Liz Morris was concerned with double dipping even though the state said this was OK this year during the transition. Two other staff members are going for Level 2 cert. later this year. Total approved was $66,601 from cum reassessment to repay county general plus an amended salary ordinance for the 2 new positions.
11. Lifetime Resources was DENIED for $5,000 for their indigent fund with Cheek voting Nay.
12. Sheriff info was passed out.
13. Safe Passages was granted $1000 for Battered Women and Children for the home in Batesville. They have been invited to the Budget Hearings as the county is using their services.
14. Cheek mentioned that fuel will impact the budget and certain depts. Pickens wants to put a surcharge on people who take the vehicles home and have that revert back to the fuel funds.
15. Pickens went on about taxes look good and then elections are over and then “it’s BOHICA (Bend over here it comes again)” They are trying to do away with elected offices- they think they can do better. It doesn’t affect me- I’ll be out of here in 2 years 7 months and 4 days. Who will they get to do my job for $40,000+ a year? It will cost more.
16. Fehrman announced budget hearings – August 20-21-22.
Meeting adjourned at 9:40 PM
Christine Brauer Mueller
Friday, May 23, 2008
Next we have the slogan “non progressive action” What is that? Then we have “Move this county forward”. We need these tiresome hackneyed slogans explained in detail. Are these slogans simply subterfuges for the home builders agenda?
The nasty term parochialism as used by Mr. Wilson refers to selfish pettiness. Is it selfish pettiness that residents object to being forced onto sewer systems they don’t need, don’t want and can’t afford which simply support more subdivisions? Is it selfish pettiness that some residents of this county do not wish to live next to high density subdivisions which as they age and as portions of them go into foreclosure, become the ghettos and slums of the neighboring cities? This is already happening in some parts of the United States.
If members of the business community need the politicians to help as Mr. Wilson has suggested perhaps they do not have a viable entity with which to begin.
One wishes that the home builders would simply tell us exactly what it is they want. What is it they want the politician to do for them?
Alan Stanley Freemond, Sr.
Tanners Creek Farm
Agenda: May 27, 2008
times listed are approximations
7:30 Meeting to order, Pledge to Flag
7:35 Presentation – David Bottorff – AIC
Discussing changes affecting county through HEA 1001
8:15 Superior Court II
Judge Sally Blankenship
8:30 Library Districts: Mary Alice Horton and Sally Stenger
8:35 Sunman/Dearborn Summer Art Program
Ms. Ruth Ann Batta
8:50 LIFETime Resources
Ms. Julie Schaefer
9:10 Bright EMS
Mr. David Bartholomew
9:20 YES Home
Ms. Cathy Piche or Ms. Amy Phillips
9:20 Dearborn Building Department
Mr. Don Townsend
9:35 Dearborn County Regional Sewer District
Ms. Vera Benning
9:50 Dearborn County Farm
Mr. Mike Heffelmire
Mr. Gary Hensley
Thursday, May 22, 2008
The Dearborn County Redevelopment Commission will hold their 2nd Quarter meeting.
Time: Wednesday, June 4 at 6:00pm
Place: Dearborn County Chamber of Commerce
320 Walnut Street
Wednesday, May 21, 2008
Present: Hughes, Chairman, Fox, and Thompson.
Also present: Ewbank, Attorney.
ABSENT: Messmore and Pickens
A uniformed officer was not present.
1. Drainage issues for Mr.Schneider were reviewed from last meeting and determined that the county is not at fault and the road is not in jeopardy. There are sinkholes on the property and the culvert is estimated at being about 120 feet long. [NOTE: If that is the case, then the culvert, which is owned by the county, is laying outside the ROW of the road and on the owner’s properties.] The house was built in 2001. Ewbank referred to the “but for” rule- But for the actions of the county would the water have eroded the land?
Schneider thought he was entitled to some relief under “the common enemy” rule as in the Soil and Water paperwork he was reading. He noted that from what he’s seen of Tucker’s subdivision in his neighborhood, there are drainage issues and he has a hard time believing that the culvert was properly outletted. The road was taken over by the county and apparently, no one looked at the drains since then. Ewbank thinks the warranty deed should cover this. The home was built with permits issued to John and Barbara Moore and Marshall Enterprises.
Cost to fix- about $6600. Ewbank with Listerman will write a letter from commissioners for Schneider to send to the builder to get relief. Katy Rademacher – Enf Officer- will work on getting a safe catch basin constructed on the other side as well as it is open and dangerous now.
The other side is in sheriff’s sale. Kraus will get survey from Woodfill of original plat. Listerman will give f/u to commissioners at next meeting.
2. Minzner- GIS- Ewbank reported that utilities are using our GIS.
3. Region 9 Workforce Board appointment requested by Mr. Timms for either Marty Hon (former hwy supt and former county chairman for Republican Party) or Jim Kinnett (recently hired to consult with DCEDI on economic development, also works for OHIO county econ dev). Commissioners appointed Hon because of his highway experience. Thompson abstained and stated he didn’t know what value highway experience had for job creation.
4. K-9 Fund Maintenance was created by ordinance and signed for the sheriff’s dept.
5. Listerman- Transportation updates:
Bids were opened and Commissioners accepted A&A Safety of Amelia OH for line striping at $75,344.76 and O’Mara for paving at $1,584,025.11
Annual 2007 report for highway dept was signed and sent to SBOA.
Signage for SR1 should be there near the interstate access and Artemis is still not directly programmed by INDOT yet. The funding expires in a year.
6. Manchester EMS contract signed. Claims and minutes signed.
7. Ewbank brought up a lien release for a rehab property from 1998- the owners (Theo and Grace Boling (sp ?)) died before the 10 years was up to qualify for release. Property is being sold. The 10 years expires in July. Commissioners signed the release.
8. Thompson brought up the concern of the building dept inspections being shut down for Class 1 inspections on commercial properties by the state. This will affect industrial and commercial development and slow things down as they wait for state inspections, rather than local ones.
Fox wants to meet with Townsend individually so as not to make him feel cornered to get to the issues. He said- “we have to run with the rules that exist.”
Thompson said he’d already met with him, staff and the state.
Fox said- we may need an executive session to address this.
Thompson noted that with no inspections, the county loses revenue and people may lose their jobs in that dept.
Meeting adjourned at 7:50 PM
Christine Brauer Mueller
Tuesday, May 20, 2008
Present: Hall, Chairman, Laws, Thompson, Nelson, Kraus, Jr., Lansing, Lehman, and Beiersdorfer(arrived 7:10)
ABSENT: Nick Held- is taking another post in his home county. When the new County Extension Agent is named, that person will serve in Held’s place.
Also present: McCormack- Planning Director, McGill, Attorney, and Listerman, Transportation Director
This meeting took 3.25 hours. This is primarily a summary of the decisions.
Minutes were tabled as they were not in packets for review prior to the meeting.
The Legge area in Washington Township was discussed further. Nelson motioned and Kraus, Jr. seconded to change the zone to what the PROPOSED FUTURE LAND USE MAP shows (commercial or industrial) The people living in the 2 houses surrounded by the Manufacturing zone are to be grandfathered as Residential and offered a variance to stay that way if they desire so as not to become non-conforming uses, should they change owners. All ayes.
These two street vacations go to the Commissioners next.
1. Maxwell Development, represented by Jeff Stenger of JDJ Surveying, was given a FAVORABLE recommendation to vacate a street (by Process Drive) in the Data Park subdivision. (only 3 houses there, platted in 1974) The new extension of that street will be access for about 6 large lots on the remaining Maxwell acreage. This is located in Kelso Township along SR 46 just south of St. Leon borders and west of East Central. The new street will be private so as not to burden highway maintenance. Maxwell will bring the other roads up to grade and petition hwy for acceptance later. Apparently, there were legal issue with this land and Maxwell had sued the former owners. There is sewer and water there now.
2. Hope Baptist Church, represented by JDJ Surveying was given a FAVORABLE recommendation to vacate parts of Megan Drive in Lake Dilldear Subdivision(created in 1945 as a recreational park and subsequently ended up with houses) in Clay Township. BZA had set Hope Baptist up with screening and buffering which will still be in force. The vacated land will be divided up between adjacent landowners. Applicant should pay for fees for the ordinance to be recorded and transferred to each landowner. Peggy Fathman (sp?) told the board that the Edmondson’s leach fields were in this area.
ADMINISTRATIVE: (2 hours) with comments from Stenger, Rosenberger, and Mueller.
Both proposed changes to the Subdivision Control Ordinance were tabled again for more changes. These were the sections on phasing subdivisions and on cul de sacs, and emergency accesses. Discussion seemed to center on developers wanting less rules on the number of houses and the street lengths of the cul-de sac. This discussion was pretty much a repeat of the one several years ago when Maxwell successfully argued to increase the length to 1200 ft and the houses to 30. It seems as Mike Hall and Stenger said- there will always be someone dissatisfied with the number. Listerman told then these numbers were rooted in hwy and street regulations and also safety rules for emergency equipment. Those wishing the details of what will be added or subtracted from the proposals can view the reports online or at the planning office.
Nelson wanted to have some language regarding waivers vs variances in the code. McGill said- we don’t do waivers. Nelson said PC does waivers and BZA does variances. Codes will be checked to see what we have and how it relates to the Indiana Codes. Nelson was concerned with outside developers taking us to court on these points. [NOTE: If we don’t do them at all- how can they take us to court?]
Bond reports were passed out- several need enforcement now.
The June meeting is on the 30th and on the 23rd there will be a working session.
TBS on Sugar Ridge made zero progress since last meeting with PC. Their access easement is already on the plat since 2006.
Fee schedule was passed out for review for next month.
US 50 collaborative meets Thurs at 2 PM and St Leon is Thurs evening on their ordinances.
The report on Sugar Ridge status was passed out. (see entire report below these notes)
Christine Brauer Mueller
Villages of Sugar Ridge: Executive Summary Report
Financial Guarantees / Traffic Signal:
· The financial guarantees for the Villages of Sugar Ridge remain expired.
· The required traffic signal improvements have been made; however, the Subdivider did not pay the contractor. The County is currently involved in a lawsuit with the contractor.
· The County Engineer estimates that a financial guarantee of $150,000 is necessary to complete the road improvements associated with Augusta Drive and Oakmont Court.
· A new estimate is necessary to determine the amount of financial guarantee(s) required to cover the remaining improvements such as anticipated public and private streets, the eight-foot (8’) pedestrian / bike path, etc.
· There is not a “master” homeowners’ association for the entire Subdivision.
· There does not appear to be an established homeowners’ association for the single family detached units. There are, however, two (2) homeowners’ associations established for the single-family attached developments within the overall Subdivision.
· There is one (1) homeowners’ association for the condominium units / developments on Lots 92 & 93 (Oakmont duplex units), Lots 153 & 154 (“The Cottages of Sugar Ridge,” 37 units), Lot 156 (“The Pointe at Sugar Ridge,” 30 units proposed), and Lots 152, 155, 157, Lot 175 and Lot 181.
· There is an additional, separate homeowners’ association for the condominium units / development known as the “The Villas of Sugar Glen,” a development of 34 units on Lot 174
Owner & Lot Information:
· Total number of lots = 152 (May, 2008)
· Total number of owners = 59 (May, 2008)
· There are five (5) known Macke-affiliated ownership groups remaining in the Subdivision. These groups own a total of forty-two (42) lots.
· Thirty-seven (37) other lots have been foreclosed by Macke-affiliated ownership groups and are being sold at a Sheriff Sale in June, 2008.
Private Streets & Access Easements
· Pinehurst Lane (serves Lots 15-20) & Ava Lane (serves Lots 167-169) were proposed and approved as private streets at the January 31st, 2005 Plan Commission public hearing; however, staff has been unable to locate documents in either the Planning & Zoning Office or the Recorder’s Office to verify that that the property owners that abut these streets (or a master homeowner’s association) are responsible for their maintenance.
· Sawgrass Lane, a street which must be renamed as this name already in use, is proposed to (initially) serve the “The Pointe at Sugar Ridge” as a private access road. It appears as though this street, or at minimum the segment of Sawgrass that leads up to the intersection with Augusta Drive, is intended to serve an additional 67 units.
· Peeble Beach Lane is a private street to be maintained by the Villas of Sugar Glen homeowners’ association.
· Muirfield Court, Sawgrass Court, and Bluegrass Court are private streets to be maintained by the Villages of Sugar Ridge condominium homeowners’ association.
· There are access easements shown on several plats for certain lots; however, there is not often an accompanying legal description. Some of these easements are intended for private streets, some are reserved for golf cart use.
Amenities / Improvements:
· The banquet hall is situated to the (immediate) northwest of the proposed “Pointe at Sugar Ridge” condominium project on the current Concept Development Plan. This location is southeast of the existing sports bar, pro shop, and maintenance buildings of the golf course.
· The practice range facilities depicted on the original Concept Development Plan has been eliminated.
· The eight-foot (8’) pedestrian / bike path has been located on the Villages of Sugar Ridge Improvement Plans. This path, once constructed, will begin at the southern entrance of the project and will travel the full length of Augusta Drive as it reconnects with Stateline Road; this improvement is consistently shown on the northeastern side of Augusta. Mike Macke, the Developer of the Villages of Sugar Ridge, indicated in October of 2006 that is was his intent to begin construction on this path in the spring / summer of 2007; however, filed for bankruptcy in the fall of 2007. It remains unclear as to whether these improvements will be completed and by which party.
· The commercial center situated in the southeastern portion of the Subdivision continues to develop slowly; a second building has been constructed. The staff will be performing a site inspection of this property within the next 1-2 weeks and will be notifying the developer of issues and deficiencies associated with the following: parking areas, stormwater facilities, lighting, signage, landscaping / bufferyards, etc. Although the eventual occupants for these structures remain largely unknown, the owner must adhere to uses permitted within a (B-1) Zoning District.
Villages of Sugar Ridge: Executive Summary Report
Number of permitted single-family detached units: 37
Number of single-family detached units on Concept Plan: 123 (current plans)
Number of permitted single-family attached or multi-family units: 75 (includes 2 duplexes, Oakmont)
Number of pending single-family attached or multi-family units: 30 (“The Pointe at Sugar Ridge”)
Maximum number of units allowable, “The Villas of Sugar Glen:” 34
Units approved, “The Villas of Sugar Glen:” 34
Maximum number of units allowable, “The Cottages of Sugar Ridge:” 40
Units approved, “The Cottages of Sugar Ridge:” 37
Maximum number of units allowable, “The Pointe at Sugar Ridge:” 31
Units pending approval, “The Cottages of Sugar Ridge:” 30*Number of single-family attached or multi-family units on Concept Plan: 192
Saturday, May 17, 2008
I also have a correction to an earlier comment of mine. I indicated that you only needed to use the base of the gmail account to post a comment. This was at least partially incorrect. If you are logged in this may be true (and you are when you first create the account), but if you are cold posting (adding a comment without first logging in) you need to use the full e-mail address (with the @gmail.com on the end). Sorry for the confusion - it got me twisted around, too.
ps. Ok, Edith, here's your chance to ONCE AGAIN tell me how stupid you think all this is. Don't let us down!
Wednesday, May 14, 2008
Data from Secretary of State Election site. 2008 data from Clerk’s office. %age is in red for primary and green for general elections.
36,254 registered voters. 12,305 (33.94%) voted in the primary election.
36,239 registered voters. 5,521 (15%) including 208 (4%) absentee in the primary election
13,457 (37%) including 1051 absentee (8%) in General election
35,153 registered voters. 5,954 (17%) including 330 (6%) absentee in the primary election
36,491 registered voters. 21,290 (58%) including 2,004 (9%) absentee in General election
35,978 registered voters. 4,548 (13%) including 321 (1%) in the primary election
No General election data viewable on file
32,942 registered voters. 4,842 (15%) including 420 (9%) absentee voted in the primary election
18,076 (52%) voted in the General election
26,113 registered voters. 5,494 (21%) including 330 absentees voted in the primary election
27,951 registered voters. 12,112 (43%) voted in General election
No viewable data for primary
25,286 registered voters. 16,870 (66.72%) including 1,387 absentees in the General election
19,943 registered voters. 7,755 (38%) including 398 (5.1%) absentees in the primary election
12,401 (62.2%) including 996 (8%) in the General election
Christine Brauer Mueller
Thursday, May 08, 2008
Present: Hughes, President, Fox, and Thompson.
Also present: Pickens, Auditor, Ewbank, Attorney, and Messmore, Administrator
A uniformed police officer was present
From the executive session preceding the meeting commissioners tabled the Med Ben Appeal for further info and took the Personnel Matter under advisement pending development of plans to correct the situation.
Hughes attempted to reorder the agenda so that the video arraignment was first in deference to the presence of two judges and the prosecutor. The projection needed to be fixed, so the meeting proceeded as originally planned.
Minzner- GIS update- was not done as Minzner was unavailable this evening.
Washington Township Trustee was appointed as Sally Nugent Randall filling the spot left by her husband Clyde (who recently passed away) According to IC 3-13-10-2 if the party doesn’t fill the spot in 30 days, the commissioners do.
Greg Davis- not present for the Pruss Road question- handled under Hwy Dept later.
Andrew Schneider and his father presented drainage issues at 3023 Cumberland Dr. in Mountain Meadows and old Tucker subdivision built around 1979 prior to tech reviews etc. After discussing the rules on drainage not changing what was originally the pattern, Listerman also talked about the road culvert and associated 3 properties and ponds. At 5611 Berkshire there was a similar problem that they might use to show a possible solution.
Hughes said we have performance bonds now so these things won’t happen. Schneider said Jennifer Hughes of Soil and Water gave him information that indicates the county is liable. Fox thought that if it was underneath the road we could go in and fix it – even on Schneider’s land as it would be undermining their road.
Commissioners TABLED this to have the various experts bring back solutions. Pickens went over to talk to the Schneiders about Soil and Water Board etc.
Kim Coble- ESCO - gave a presentation on video arraignment with FTR digital recorder being installed already in the commissioners room and a few speakers. They didn’t upgrade in the room to be cost effective. She talked about analyzing needs of each of the courthouse judges and prosecutor for video conferencing using the internet. ESCO does custom integrations so that they can get it all worked out under one roof. She demonstrated the product capabilities and options. Cobol strongly recommended they check out Noble County’s set-up and a few others they have done. Uses include telemedicine for prisoners, remote conferencing for expert witnesses, arraignment without leaving the jail, etc. The packet of info included Phase 1 – Superior Court 2 and jail, then Superior court 1, then circuit court, then prosecutor and finally commissioner room for them and Judge Blankenship as needed.
Judge Blankenship – appreciate all the work but my court has no jury room- people will still be coming through the halls, how will this all fit into a small courtroom? Everything needs to be compatible and still be able to expand. She thought it would be most helpful to the sheriff. She said initial hearings are a small group of all the transports done. [NOTE: Reading between the lines- she seems to think it’s not that helpful to the judges.]
Judge Humphrey Superior Court should come first- their needs are greater.
Negangard- the only use his office would have would be for depositions.
Thompson- some of this is wireless- Cobol- yes- and that is great for historical buildings.
Fox- payback numbers?
Thompson- perhaps from the sheriff’s dept. and some insurance problems with liability.
Fox- going to move forward fixing the space issue in the courthouse.
Commissioners -Tabled this to give judges chance to view it in practice elsewhere.
Todd Listerman- Transportation Dept.-
Waiting on Collier Ridge- working on a possibility of compacting soil after cutting below the slip plain.
Met with Heritage Eng and CPI on Holt Road solutions- may realign the bottom using concrete arch structure- estimates by May-June.
Bids for 2008 paving and chip seal for Ester Ridge and S Hogan out.
Bids for striping out.
Bridge 20 over Chesterville wage rate hearings at the end of May
Greg Davis- not present- but Pruss Road was discussed. The ROW has been acquired from him so the road will go to his place and end in a cul de sac. Property owners in the area affected were Claude Burke and Dean Benning. Davis and siblings bought the Devon Rump property [NOTE: this property has been split for Devon Rump and Heather Benning Rump divorce. The road in question has had issues with ROW and as aligned now it has almost all the ROW on the one side- not the Droege side.]
Listerman said there is a 2002 agreement signed by Richard Anthony on Pruss Road off Grelle Road. Richard Shelley the engineer following Anthony built the road on Commissioner Benning’s orders. Numerous attempts to get it accepted into eth highway have failed over the years due to ROW issues. The road is a gravel road and supposedly easier for the county to maintain than old Pruss Road.
Fox- People need to have access to their land. Commissioners thought this would be cheapest for the county to maintain now- they confirmed the 2002 agreement as soon as requirements are complete and they can request vacation of the old Pruss Road. Davis can now record his deed.
Dennis Kraus Jr.- Advised commissioners that he is working with Soil and Water Board to police and maintain drainage and detention ponds. Thinks they will eventually need a Drainage Board. We have no regulated one here. Under state law the drainage board is supposed to review plats before the Plan Commission. Pickens opposed as this will lead to another TAX! Do more research – see their rates etc.
Pickens- Claims and Minutes signed.
Messmore- NOTHING to report.
Ewbank- No new lawsuits.
Hughes- out campaigning and people wanted the official county website updated. Pickens said when GIS is done we can consolidate it all. [NOTE: there is still a lot to be updated that has nothing to do with GIS- minutes and agendas for example. Some boards have nothing- Council‘s section of the website has next to nothing- not even the budget. Commissioner’s minutes are not even close to being up to date. The county site could be a great place to get information- and highlight the county as being tech savvy. Highway could have their road lists on etc. The information exists in digital form already- why not post it? Couldn’t the county administrator do this?]
Meeting adjourned at 8:05 PM
Christine Brauer Mueller
Tuesday, May 06, 2008
Registered voters- 36,254
Ballots cast- 12,305
Voter turnout – 33.94%
REPUBLICAN BALLOT- total votes- 5146
Jeff Hughes- 2475
Rick Pope- 827
Kathy Scott- 1178
Rick Fox- 3472
Council at large
Maynard Barrott- 1451
Thomas Hammond- 1092
Patrick Holland- 1044
Bill Ullrich- 2708
Judge Superior 1
Jonathon Cleary- 3053
G Michael Witte- 1516
Dennis Kraus, Jr.- 2701
Roger Woodfill - 1363
Philip Weaver- 4088
Gayle Pennington- 3960
Donald Wesley Holt- 3774
President of the USA
Romney - 246
DEMOCRAT BALLOT – total votes- 7157
Jerome Jake Hoog - 2238
Thomas Orschell- 2981
Judge Superior 1
Thomas Blondell- 2351
Barbara Wyly- 3085
President of the USA
Clinton - 5270
Obama - 1782
Approximately 60 people were present. The meeting was moved, earlier in the day, to the Lawrenceburg Library meeting room. There were 6 tables in the audience with 2-3 chairs apiece at them and the table in front for the board. The secretary was present and asked people to sign in. She did not collect the signature sheet at the end. There was no tape of this meeting. Citizens went to the closet to pull out their own chairs and set up.
[NOTE: The public notice for this public hearing was published in the paper and was NOT sent to the paper for additional FREE publication as a news brief. The paper and this blog published the announcement so that citizens might be aware of this possibility of forced sewer hook-ups by DCRSD. Most citizens do not read all the legal notices in the back of the paper.]
Present: Dave Enzweiler, Chairman, Barry Pruss, Brett Fehrman, Rodney Dennerline, John Maxwell, and Steve Renihan. The 7th member position has not been filled upon Hankins resignation. Kramer, Attorney and Quinn, Engineer were also present.
Three county commissioners were present.
In the audience were candidates: Kathy Scott, Thom Hammond, Barbara Wyly, Pat Holland, and Tom Orschel.
Dave Enzweiler waited 10 minutes to be certain people had time to read the room change notice and get across the street. He then read the ordinance in its entirety. [NOTE: The ordinance is listed in an earlier April posting on this blog]
Frank Kramer said that IN Code gives the board the power to force connection within 300 ft of the property line. There is an exception in statute that if the septic system is 5 years old or less and working per the board of health, it is allowed. [NOTE: The law also phases the exception out within a few years- it is just a means to try to recoup some of the expense of the initial septic system.] Kramer noted that the law intends to phase out private septic systems where public sewers are available. The policy is that funds are recovered from people served by that line. The ordinance was published 2 times as required by statute.
Dave Enzweiler said all three commissioners were present and asked to speak. [NOTE: Hughes called to get on DCRSD agenda. The previous evening at the Candidates Night, Hughes, when questioned about this hearing and ordinance said that he doubted the ordinance would pass. And he went further to say that if they did, they would replace the board members. Perhaps he did not remember the commissioners only appoint 3 of the 7 members.]
Jeff Hughes- said he wants to protect individual citizens and their rights. He cited sections 2, 6, and 7 and said the American Spirit was about being self-sufficient and if it worked, why hook on to the sewer? Government steps in when sewage is on the neighbor’s land, but not otherwise. Stewart and Cole Lane were negotiated with Aurora. “I have a hard time with this.” All three commissioners said we’ll go to court –[NOTE: Go to testify on behalf of citizens- not pay for lawyers or initiate the court action.] - we don’t want to force hook-ups. This needs to be evaluated more. Just because the state says it, does not make it right.
Rick Fox- said all 3 of us agreed we’d testify on their behalf- we’re not for forced hook-ups. As background on why this exists. A guy called me at work and told me he had sewage on his neighbor’s land and couldn’t afford to fix it and there was no sewer available. He was going to lose his home. [NOTE: So we make a law for the whole county based on one person’s experience?]Anyone building will have to hook onto available sewers. I don’t think you should be able to go onto people’s land to check their systems. This creates a roadblock and an impediment to people you are supposed to serve.
Barbara Wyly- The law says once you decide to do this- you force people. This law belongs in areas of high density- not farm areas. [NOTE: Wyly is an attorney running for judge.]
Rick Fox- I can’t imagine the state coming down and forcing them on. If we have to go to court for you we will. [NOTE: Fox left shortly after this and did NOT stay to hear the rest of the people or the outcome.]
Ralph Thompson- I have been against this since before this DCRSD was even formed. Some problems are solved but not the one DCRSD was designed to solve. This should not go in Ag areas. I will testify in court and continue to talk to state senators to get it changed. The developer needs to pay the cost- do not burden the people in between.
Dave Enzweiler- In response to the commissioners- we do not want to force people on if their system works. I am not saying this ordinance is 100% correct. I got on this board because I was in your shoes. I received a letter to sign us up to the sewer. I spent a year on an advisory committee and fought giving easements on my land at my lawyer’s advice. We cannot go to Aurora or Dillsboro and so we are trying a package plant. If your sewer is failed, you should hook-up. You bring us the paperwork to show you are OK. [Note: Guilty until proven innocent?]
Thom Hammond- I understand how you are trying to make this work. BUT- the words in black and white say otherwise. In S. Leon, someone was at a meeting like this 10 years ago before I was on the scene and now look at us. Other people will interpret your ordinance someday. How will these people be safe from hook-up enforcement? Write it EXACTLY the way you intend it. Perhaps consider 300 ft to the dwelling?
Dave Enzweiler- People have to speak up and go to the state.
Thom Hammond- Can’t your attorney and your board go with us?
Dave Enzweiler- St. Leon is different due to the grants being dependent on hook-ups.
Thom Hammond- This issue ripped this county apart. It is about fairness. Hammond described abandoning septic and ice storm power outages. Septic systems WORK! We do not live in the city- we live on farmland. Also take a look at #7- the fines accrue even while a dispute is being settled. They should be suspended until a dispute is resolved.
Brett Fehrman motioned and Rodney Dennerline 2nd to start over with the ordinance. (Before the vote was taken- more discussion was allowed.)
Unknown citizen- 92 counties and we’re the one forcing hook-ups
Dave Enzweiler- they are not doing what they should do.
Brett Fehrman- 95% of the people here do not agree with the state law on the exceptions.
Ralph Thompson- wastewater in this code- well what about animal waste?
Jerry Jacobson- per Mr. Kramer- “A law is not a law unless it’s enforced.” If 92 counties are not- it is a bad law. Municipalities are DIFFERENT from the countryside. Jacobson described his mother’s farm where the house is a half mile from all roads- but the sewer might be at her property edge someday.
Dave Enzweiler- we are using a pressure system because the gravity is 3 times the expense.
Ralph Thompson- that is the cost to this board- you gave the other costs to the PEOPLE with the pumps etc. Thompson explained how Clermont County works with their hilly terrain using gravity to the valleys and lifts.
Unknown woman- The state law is a guideline for us to put our law together. I think the age of the septic system is immaterial.
Chet Wolgamot- If you start over- get as much info as possible. (Kramer verified that it says MAY.) So write the law for the existing health issues. Do not create any more High Ridge Estates. Low-pressure systems are no good. We do not want everyone to be their own sewer system. We only need sewers for high density. Municipalities can work outward with the infrastructure. The rural county has room and can get by with well-maintained septic systems.
The homeowners should not have to provide documentation that the system is working correctly. That is backwards. It is different if there is a health hazard. You know when a system is failed.
Dave Enzweiler- How would you know?
Mark Hall- Has anyone been sick?
Mary Lynn Hertle- Our group has been to the state- gone to our reps- we get no replies and no help. They will respond to YOU- you have more clout than I do.
Steve Walker- Earlier you indicated you were under the auspices of the state to write this. (Enzweiler indicated that the board did this law) Walker detailed his particular experience with a panhandle lot and the large and impossible distance to his home for pressure line.
Tom Orschel- If you want to redo this- can you get knowledgeable people here to help you? Chet, Thompson, Hammond, etc.
Cliff Eibeck- You will know when a system is not working by the smell.
Unknown woman2- Low density needs to be defined. I live on one acre. The septic when it fails backs up to the house- you know when it fails. You have to fix it.
Thom Hammond- St. Leon started out by soliciting voluntary hook-ups. Many did with the $400 tap fee and free grinders with lifetime maintenance. Now it’s $4000 tap and resident pays all expenses. We need to push back at the state. Asked how many on the board were on sewers. The count was 2 (one was Renihan who lives in OHIO) and 4 on septic tanks.
John Draper- (son of Norb Draper, the developer of High Ridge Estates, who filed bankruptcy and was responsible for the pkg plant and lagoon at High Ridge) - Does this board have a say over St. Leon? (Answer – no)
Dave Enzweiler- and not over VRUC either.
John Draper- you are driven by the Board of Health to fix problem areas. Many failed- some say 80%. The board of health certifies these as absolute problem areas. He gave examples that he said were of leach fields all tied to a line to a creek.
Kathy Scott- Watch out for the may and shall in these ordinances. What was the catalyst that brought this to the surface- what made you make this ordinance?
Dave Enzweiler- Maxwell wanted something in writing to say what we will do. For Cole Lane and Stewart St some are running in the ditches on the road. We found grant money to help them pay.
Jerry Jacobson- The County Health Board has the ability to force hook-ups.
Rodney Dennerline- They can condemn the house and order to ABATE the problem- after 90 days they go to court etc. [NOTE: Apparently that’s a lot of WORK as they said and they don’t like to do all that to a citizen. However, the DCRSD will end up doing the same thing with this law. And worse.]
Chris Mueller- What about gravity sewers? Why use these grinders when we know they fail- and people who say they do not have problems in Lawrenceburg on the hill with them are wrong. I have seen it on my own street- Shady Lane twice- it was running in the street from a failed grinder and down the sewer drain. They have dug up others on the hill as well. It is not eco-friendly to have electricity run out in every yard to fire up grinder pumps. We have a county terrain that can work FOR us with gravity systems, if creatively designed. The lift stations would be operated and maintained by the professionals with the utility and not citizens who do NOT know how to do that. [Note: Costs of grinder systems are cheap at the outset because the cost has been transferred to the citizens.] We have to think of the future- long term, gravity would be better, easier to size the lines, less redigging of front yards to add homes etc. People on farms should NOT be forced onto sewers, scouring lines and maintaining pressure as well as helping pay is the only reasons this is happening in our county. Gravity would solve that.
Mary Lynn Hertle- Get people who do know- how to do this.
Steve Renihan- If this ordinance reiterates the state – why do we need it? [NOTE Renihan is new to the board- the state ordinance ENABLES the county to force if they choose. Otherwise, the county can opt to do either.]
Frank Kramer- There is no difference in the board policy or ordinance “unless specifically permitted by the district.” You have to decide how you will permit hook-ups or not.
Steve Renihan- The Health Board can require them.
Frank Kramer- its work for the Health Dept to test, get expert witness, etc.
John Maxwell- If we say the system does not work, hook-up, and then we will be back doing the Health Dept. job for them. We could sue the health board to do their job.
Unknown woman- would like no time limit in the age of the septic tank.
Pat Holland- People should also have the option to redo their septic tanks.
Chet Wolgamot- suggested some wording that forced hook-ups would only be for a demonstrated existing health hazard that could not be fixed except by sewer connection, or that the property owner refuses to correct.
Board voted on the motion to rework the ordinance- All ayes.
[NOTE: Because the meeting was not taped- the minutes will be based on the secretary’s notes. Perhaps someone needs to be sure that the ideas for reworking the ordinance as expressed by the people at this meeting- are actually incorporated into the official minutes and also considered at the meeting when this ordinance is “revised.”]
Update on Serenity Ridge and Renihan abstained from the vote on a claim for it.
Per Dennerline – John Draper said his parents will donate ground for the package plant at High Ridge – Dennerline motioned and Renihan 2nd the board voted unanimously to study the feasibility for the package plant at High Ridge.
Quinn Engineering claim paid.
Meeting adjourned at 8:45 PM
Christine Brauer Mueller
Polls are open from 6 AM to 6 PM.
WSCH 99.3 will carry results as they come in. (usually after 7 PM)
Register Publications will have aticles and coverage in Thursday's edition.
It's your duty and a privilege to vote.
Don't forget to bring your driver's license or other approved ID to the polls.
Monday, May 05, 2008
ATTORNEYS FOR APPELLANT: ATTORNEY FOR APPELLEE:
STEVE CARTER MICHAEL J. HOLLENBECK
Attorney General of Indiana Lawrenceburg, Indiana
CYNTHIA L. PLOUGHE
Deputy Attorney General
COURT OF APPEALS OF INDIANA
STATE OF INDIANA, )
vs. ) No. 15A01-0707-CR-289
ROBERT E. SAVAGE, )
APPEAL FROM THE DEARBORN SUPERIOR COURT
The Honorable G. Michael Witte, Judge
Cause No. 15D01-0702-FD-19
May 1, 2008
MEMORANDUM DECISION - NOT FOR PUBLICATION
Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
The State appeals the trial court’s grant of Robert E. Savage’s motion to suppress. The sole issue raised by the State on appeal is whether the trial court properly granted Savage’s motion to suppress.
On February 14, 2007, Officer Ryan Brandt of the Dillsboro Police Department in Dearborn County, Indiana prepared an affidavit seeking a search warrant authorizing a search of Savage’s residence. The relevant portion of the affidavit states:
That on the 14th day of February 2007, your affiant was contacted by a concerned citizen in reference to receiving marijuana. The concerned citizen advised your affiant that he/she received marijuana from a resident of the Savage household. The concerned citizen advised your affiant that on February 14, 2007, he was at the residence of Robert Savage at 9860 Front Street in Dillsboro, Indiana. That while at said residence a resident of the Savage household stated that Robert Savage had a bag of marijuana in the residence. The concerned citizen further advised your affiant that he received a portion of the marijuana from the resident and that he was advised that there was more marijuana in the residence. That the concerned citizen provided the marijuana to your affiant. That your affiant observed the substance to be a [sic] approximately a gram of a green plantlike substance that your affiant knows from his prior training and experience to be marijuana.
Appellant’s Appendix at 14. Based upon this affidavit, Dearborn County Superior Court Judge Sally Blankenship issued a search warrant for Savage’s home. A copy of the search warrant and Officer Brandt’s affidavit were left with Judge Blankenship. Both of these documents were later filed with the trial court clerk on February 26, 2007.
In executing the search warrant, officers found marijuana and various items of drug paraphernalia. The State charged Savage with maintaining a common nuisance as a
class D felony, possession of marijuana as a class A misdemeanor, and possession of paraphernalia as a class A misdemeanor.
On April 5, 2007, Savage filed a motion to suppress, and the trial court held a hearing on that motion on May 22, 2007. At the hearing, Officer Brandt testified that he was not at liberty to disclose the identity of the concerned citizen mentioned in his affidavit. He stated that he did not consider the concerned citizen to be a confidential informant. At one point, Officer Brandt was asked how he determined that the concerned citizen was credible and he said, "By some previous information had been given to us about Mr. Savage having tried to grow marijuana plants in the past. We had prior information about that." Transcript at 7. The court asked Officer Brandt whether this prior information about Savage had been provided by the concerned citizen, and Officer Brandt said that it had. Defense counsel then asked, "As far as the information you received previously you never obtained a warrant and verified if that information was correct, did you?" Id. at 8. Officer Brandt confirmed that no investigation had been done to verify the accuracy of this information.
On June 7, 2007, the trial court issued an order granting Savage’s motion to suppress. The trial court first found that Officer Brandt’s affidavit was not properly filed and, as a result, there was insufficient probable cause to issue the search warrant. Even if the affidavit was properly filed, the trial court found that Officer Brandt’s affidavit did not contain sufficient evidence to support a finding of probable cause to search and that the good faith exception did not apply in this case. On June 22, 2007, the State filed a motion to dismiss the charges against Savage, and this appeal ensued.
On appeal from the grant of a motion to suppress, the State appeals from a negative judgment and must show that the trial court’s ruling was contrary to law. State v. Williamson, 852 N.E.2d 962 (Ind. Ct. App. 2006). "We will reverse a negative judgment only when the evidence is without conflict and all reasonable inferences lead to a conclusion opposite that of the trial court." Id. at 965. We will only consider the evidence most favorable to the judgment and will not reweigh the evidence or judge the credibility of the witnesses. State v. Williamson, 852 N.E.2d 962.
1. The State first argues that the trial court erred in granting Savage’s motion to suppress because the affidavit was improperly filed. Here, the search warrant was signed by Judge Blankenship at her home on the night of February 14, 2007. A copy of the search warrant and Officer Brandt’s affidavit were left with Judge Blankenship, and both of these documents were later filed with the trial court clerk on February 26, 2007.
Ind. Code Ann. § 35-33-5-2(a) (West, PREMISE through 2007 1st Regular Sess.) provides that "no warrant for search or arrest shall be issued until there is filed with the judge an affidavit . . . ." (Emphasis supplied.) The State argued that by leaving a copy of the search warrant and Officer Brandt’s affidavit with Judge Blankenship, it had fulfilled the requirements of I.C. §35-33-5-2(a).
The trial court disagreed. It pointed out that Trial Rule 5(F) lists the various ways documents can be filed with the court. The trial court noted that Trial Rule 5(F)(5) authorizes, "[i]f the court so permits, filing with the judge, in which event the judge shall note thereon the filing date and forthwith transmit them to the office of the clerk." The trial court stated, "Filing with the judge is not synonymous with leaving a copy with the judge at her home or office. The act of filing with a judge is not complete until the judge shall note thereon the filing date and forthwith transmit them to the office of the clerk." Appellant’s Appendix at 30 (emphasis in original). The trial court found that Judge Blankenship had not noted the filing date on Officer Brandt’s affidavit and that the search warrant and affidavit had not been timely transmitted to the clerk’s office. The trial court concluded that "[t]he untimely filing of the affidavit results in a lack of probable cause due to a lack of oath or affirmation." Id. at 37.
We recently addressed this same issue in Scott v. State, 2008 WL 755889 (Ind. Ct. App. 2008). In that case, Judge S. Brent Almon signed a search warrant on October 10, 2006. A copy of the search warrant and the probable cause affidavit were left with Judge Almon, who gave both of these documents to his court reporter the next day. The documents, though, were not filed with the clerk’s office until April 2, 2007. On appeal, Scott argued that the probable cause affidavit supporting the search warrant was not properly filed because, although it was left with Judge Almon, it was not filed with the clerk’s office until April 2, 2007. We noted that the "plain language of Indiana Code section 35-33-5-2 requires that the affidavit be filed with the judge . . . ." Id. at *4. We determined that this requirement was met when the officer personally handed the probable cause affidavit to Judge Almon. Scott v. State, 2008 WL 755889. We noted that there was "nothing in the record to suggest that [the officer] had any reason to believe that the affidavit would not be promptly filed with the clerk, and, in the end, we are at a loss to see how he could have more fully complied with Indiana Code section 35-33-5-2." Id. at *
4. We concluded that the affidavit supporting the search warrant was properly filed. Scott v. State, 2008 WL 755889. Here, as in Scott, Officer Brandt fulfilled the filing requirement of I.C. § 35-33-5-2 by personally providing Judge Blankenship with a copy of his affidavit. Officer Brandt’s affidavit in support of the February 14, 2007 search warrant was properly filed. Therefore, the trial court erred in granting Savage’s motion to suppress on this ground.
2. The State next argues that the trial court erred in concluding that Officer Brandt’s affidavit did not contain sufficient evidence to support a finding of probable cause to search. It contends that the information provided by the concerned citizen was sufficient to establish probable cause.
The Fourth Amendment to the United States Constitution guarantees that a search warrant will not be issued without probable cause. Probable cause to search a premises is established when a sufficient basis of fact exists to permit a reasonably prudent person to believe that a search of those premises will uncover evidence of a crime. Helsley v. State, 809 N.E.2d 292 (Ind. 2004).
In deciding whether to issue a search warrant, the task of the issuing magistrate is simply to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit ... there is a fair probability that contraband or evidence of a crime will be found in a particular place. The duty of the reviewing court is to determine whether the magistrate had a "substantial basis" for concluding that probable cause existed. Substantial basis requires the reviewing court, with significant deference to the magistrate's determination, to focus on whether reasonable inferences drawn from the totality of the evidence support the determination of probable cause. "Reviewing court" for these purposes includes both the trial court ruling on a motion to suppress and an appellate court reviewing the decision.
Scott v. State, 2008 WL 755889 at *5 (quoting Jaggers v. State, 687 N.E.2d 180, 181-82 (Ind. 1997)).
"Information gleaned from cooperative citizens who are either eyewitnesses or victims of a crime may be relied upon in determining whether probable cause exists for a search where there are no circumstances which call the informant’s motives into question." Frasier v. State, 794 N.E.2d 449, 457 (Ind. Ct. App. 2003), trans. denied. "[I]f an unquestionably honest citizen comes forward with a report of criminal activity – which if fabricated would subject him to criminal liability – we have found rigorous scrutiny of the basis of his knowledge unnecessary." Illinois v. Gates, 462 U.S. 213, 233-34 (1983).
Although rigorous scrutiny is unnecessary, some scrutiny is still required. Our Supreme Court has held that a tip from a concerned citizen coupled with some corroborative police investigation is sufficient to create reasonable suspicion for an investigative stop. Kellems v. State, 842 N.E.2d 352 (Ind. 2006). As we have already stated, under the Fourth Amendment, a search warrant will not be issued without probable cause. Probable cause is a more demanding standard than reasonable suspicion. See Kellems v. State, 842 N.E.2d 352. "[U]ncorroborated hearsay from a source whose credibility is itself unknown is insufficient by itself to support a finding of probable cause." Frasier v. State, 794 N.E.2d at 456. This would seem to suggest that in some cases, but perhaps not all, an uncorroborated tip from a concerned citizen standing alone would not be sufficient to support a finding of probable cause. Nevertheless, the amount of evidence necessary to satisfy the probable cause test is largely determined on a case-by-case basis taking into consideration the totality of the circumstances. Kellems v. State, 842 N.E.2d 352.
Here, the finding of probable cause was based solely on the information provided by the concerned citizen. Officer Brandt’s affidavit does not indicate that the police conducted any sort of independent investigation to corroborate the accuracy of the information provided by the concerned citizen. Such an investigation could have, at the very least, confirmed that the concerned citizen went to Savage’s home on February 14, 2007. Without any such investigation, we agree with the trial court that "[t]here is no corroboration of the [concerned citizen’s] acquisition of marijuana from the defendant’s residence. He could just as easily have obtained the marijuana from some other source, and then provided it to the affiant in order to set up the target." Appellant’s Appendix at 35. Because no investigation was conducted, the trial court correctly noted that Officer Brandt’s affidavit lacks "any corroboration of the critical claim that there is criminal activity inside [Savage’s] house." Id.
Additionally, there was no corroboration of the concerned citizen’s credibility. We agree with the trial court that the term ‘"concerned citizen’ is not a magical incantation that automatically brings credibility to an anonymous hearsay statement." Id. When Officer Brandt was asked how he determined that the concerned citizen was credible, he testified that the concerned citizen had previously provided information to the police that Savage was trying to grow marijuana. Officer Brandt, though, conceded that no investigation was conducted to verify the accuracy of this tip. Thus, this prior encounter does not establish the credibility of the concerned citizen.
This past tip to the police about Savage also raises concerns about the concerned citizen’s motives. Concerned citizens are usually one-time informants. Kellems v. State, 842 N.E.2d 352. The fact that the concerned citizen has now reported Savage to the police twice suggests that he or she may have some sort of malicious reason for making such reports. A corroborative investigation by the police could have dispelled such concerns.
Without any corroborative police investigation, we conclude that the information provided by the concerned citizen alone was not sufficient evidence to support a finding of probable cause to search Savage’s residence. Therefore, the trial court properly granted Savage’s motion to suppress.
3.The State next contends that even if the search warrant was not supported by probable cause, the police relied in good faith on the search warrant and, thus, the evidence obtained from the search should not be excluded.
"Generally, when evidence is obtained in violation of the Fourth Amendment, such evidence may not be used against a defendant at trial." Frasier v. State, 794 N.E.2d at 457. There, however, are exceptions to this general principle, one of which is the "good faith" exception. Frasier v. State, 794 N.E.2d 449. Under this exception, the exclusionary rule does not require the suppression of evidence obtained in reliance upon a defective search warrant if the police relied upon such a warrant in objective good faith. Id.
The good faith exception has been codified in Ind. Code Ann. § 35-37-4-5 (West, PREMISE through 2007 1st Regular Sess.), which, in relevant part, states:
(a) In a prosecution for a crime or a proceeding to enforce an ordinance or a statute defining an infraction, the court may not grant a motion to exclude evidence on the grounds that the search or seizure by which the evidence was obtained was unlawful if the evidence was obtained by a law enforcement officer in good faith.
(b) For purposes of this section, evidence is obtained by a law enforcement officer in good faith if:
(1) it is obtained pursuant to:
(A) a search warrant that was properly issued upon a determination of probable cause by a neutral and detached magistrate, that is free from obvious defects other than nondeliberate errors made in its preparation, and that was reasonably believed by the law enforcement officer to be valid; or
(B) a state statute, judicial precedent, or court rule that is later declared unconstitutional or otherwise invalidated; and
(2) the law enforcement officer, at the time he obtains the evidence, has satisfied applicable minimum basic training requirements established by rules adopted by the law enforcement training board under IC 5-2-1-9.
The good faith exception does not apply in situations where (1) the magistrate is misled by information in an affidavit that the affiant knew was false or would have known was false except for his reckless disregard for the truth; (2) the issuing magistrate wholly abandoned his judicial role; (3) the warrant was based upon an affidavit so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable; or (4) the warrant is so facially deficient, i.e., in failing to particularize the place to be searched or the things to be seized, that the executing police officers cannot reasonably presume it to be valid. Frasier v. State, 794 N.E.2d 449. "Although we should be careful not to equate the reasonableness of the officer's belief with the establishment of probable cause in the affidavit, it is equally critical that we do not construe the good faith exception so broadly as to obliterate the exclusionary rule." Id.
Our Supreme Court has also noted that two things should be abundantly clear to law enforcement officers who, as in this case, seek a warrant based on hearsay: (1) the informant must be shown to be credible; or (2) the information must be shown to be reliable through corroboration or some other means. Jaggers v. State, 687 N.E.2d 180. The court has "emphasized that corroboration of inculpating information can sometimes be crucial to determining the existence of good faith." Id. at 185.
Savage argues that Officer Brandt’s affidavit supporting the search warrant was so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable. We agree. On its face, Officer Brandt’s affidavit indicates that the only information obtained by police pertaining to the allegations of criminal activity by Savage was provided by the concerned citizen. The police did not engage in any sort of investigation to corroborate the concerned citizen’s allegations. No effort was made by the police to corroborate that the concerned citizen actually went to Savage’s home on February 14, 2007, and that the marijuana he or she turned over to Officer Brandt came from Savage. Additionally, no effort was made by the police to assess the credibility of the concerned citizen. In this case, the rationale behind the good faith exception "is not advanced by effectively allowing the State to claim good faith reliance on a warrant after a less than faithful effort to establish probable cause to obtain it." Jaggers v. State, 687 N.E.2d at 186. Therefore, we conclude that the good faith exception does not apply here and that the trial court properly granted Savage’s motion to suppress.
MATHIAS, J., and ROBB, J., concur.
Sunday, May 04, 2008
However, a 2/3 voting majority of the problem remained with commissioners Jeff Hughes and Rick Fox who are both up for re-election this year.
They have maintained a status quo of poor governance.
Ralph Thompson alone is powerless to stop them.
Hughes and Fox continue to approve zone changes for multiple high density subdivisions where they don't fit.
We have to make up their property tax shortfall, while losing more of our rural character with each new development.
Ordinances to force expensive and unnecessary sewer hook-ups to subsidize the developers are in the works.
Recent articles from the April 2008 Dearborn County Register edition explain these issues in depth.
Please take the time to read them to understand the severity of these issues.
Republican Rick Fox is running unopposed in the primary election next Tuesday.
Republican Jeff Hughes, however, is opposed by Republicans Rick Pope and Kathy Scott.
Kathy Scott is running on three campaign themes of honesty, fairness and persistence.
Kathy believes in sewers for our health rather than other's wealth.
Kathy stands for open government, listening to and governing according to the will of the people.
Kathy believes in smart fiscal growth for the county, not profitable growth and citizen subsidization for the developers.
Her candidacy letter from the April 15, 2008 Register explains her position and credentials.
If at all possible, we urge you to select a Republican ballot in the upcoming primary and vote for Kathy Scott.
Just one more commissioner next year with the right attitude can give us back our county government.
Additionally, please spread the word before election day to as many as possible.
Please forward this to as many other concerned Dearborn County voters as you can.
We either act now on May 6 or we open ourselves up to four more years of the same.
Thank you for your time.
Saturday, May 03, 2008
As you know we live in a small rather thinly populated county. Because of this there is more than the usual amount of familiarity between people in various parts of the county. This can be by name, issues, and/or writing style.
There is a justifiable fear of retribution for some of our citizens who voice their opinions in the comments on your necessary blog. This concern can be related to job, social life or even chance encounters on the street, in stores and in church.
As an example of fear of retribution I call your attention to the fairly well publicized complaint of Bischoff of the St. Leon Sewer Board. He feared a boycott of his key copying or lock business in Harrison because of his association with the unpopular ordinances regarding forced hookup to the St. Leon Sewer System. Such was his concern that he somehow prevailed upon the Harrison Press to editorialize on unfairness of his perceived concern of a boycott.
I found that the recent introduction of tedious passages of the Magna Carta into the comments was a nuisance. Momentarily I was relieved to note that it had been removed. Upon further thought it become apparent to me that it was a form of censorship which we don’t really want.
The attempt to get closer to the identity of anonymous commenters will be a deterrence to people who have an opinion to voice.
In general I have been impressed with the depth of knowledge of various commenters about local issues, this we don’t want to discourage. Yes there are some nasty comments, none really in poor taste. It is a pity that some of the officials who are on the receiving end of strongly worded comments are unhappy.
I enjoy the occasional shots that some take at me.
Therefore sir, I hope that you will allow the anonymity of commenters to continue as it had been before your announced policy change.
Without pandering I believe that you are doing a fine service with the blog. I wonder not just occasionally how you are able to manage your time and effort to maintain it.
Alan S. Freemond, Sr.
Tanners Creek Farm,
I want everyone to have a voice, to get their two cents worth in. The new mechanism for posting does nothing to limit speech. What it does do is give this online community a way to police itself.
Now when you post, you have a reputation to build or destroy. No more hiding in the noise. This does not mean that you aren't anonymous to the real world if you choose to be!
For those who are unsure about signing up because they worry that big brother will be watching and come after you, or you just aren't sure how to get back in the game, follow these steps:
1) go to this link http://www.gmail.com/ .
2) fill out and submit the form - you don't have to give your real name and you don't have to provide an e-mail address. The form contains...
- First name: This is what will appear on your comments
Last name: This only appears in the profile that nobody sees
Desired Login Name: This is what you will type into the username box when posting a comment
- Password: (twice to make sure you have what you intend to have)
Write it down where you will remember to look for it next time you want to use it or you might have to start all over again with some other name...
- Security Question: This helps you recover your password if you forget. I like to put in my own question so I can make it obscure and be certain of remembering what I answered!
- Answer: Your answer
- Secondary E-mail: You don't need one if you are worried that it could be tracked to you - leave it blank if you choose.
But Google will be the only one to know and it is another way to get your password back if you forget it and your security question or response.
- Word Verification: This is something Google does to ensure that only real people get accounts - it is mandatory, don't forget it.
This is a good thing folks. If you want to bawl somebody out for something they posted, you can just name them instead of having to quote them for context. You can duke it out mano-a-mano while the crowd roars it's approval, and nobody can pretend to be you and discredit what you have to say.
As a bonus you now have a google mail account that you can use to submit articles or trade private emails with others on the blog. If you need help setting that up - gmail has instructions or I can help if need be.
Welcome back with your shiny new Secret Identity fellow citizen!