25 September 2006 Dearborn County Plan Commission Meeting Notes

25 September 2006 Dearborn County Plan Commission Meeting Notes

PLAN COMMISSION DENIES ONE; APPROVES THREE IN 5 HOURS

See ITEM # 3 for additional details not apparent in the public presentation.

Present: Mark Mitter, Chairman, Patrick deMaynadier, Jane Ohlmansiek, Nick Held, Mike Hall, Jeff Hughes, Robert Laws, and Dennis Kraus, Jr.
Absent: Tarry Feiss
Also Present: Arnie McGill, Attorney, and Mark McCormack, Planning Director
Also absent: Kate Rademacher, Enforcement Officer.

Ralph Thompson, Republican Candidate for Commissioner, was also present

OLD BUSINESS TO BE REOPENED

1. Plan Commission DENIES 11-lot subdivision- Phase 3 of Lawrenceville Farms (Jackson Township (60.973 acres) with owner Bill Geisel and Applicant Mike Hall.

Hall stepped down from the PC for this. His wife, Terri, presented the case.
The public speaking in opposition consisted of 3 neighbors, Steve ??last name, Robert Trabel, and Bill Wilkymacky. All three cited water drainage issues, including standing water nearly year round. The subdivision has now sewer- it was questionable that there were even enough viable septic sites. They also asked about having a fence installed.

Geisel said the corps of engineers was out there and French drains were installed. The county engineer said the drain was working properly. The board at first seemed to think that the health dept. would determine the septic sites and that if that meant some lots were unbuildable, then they would have to combine with others. De Maynadier noted that he’d seen the standing water as he drives by the site. Mitter said he had HUGE concerns and sees this development as one big “cess pool.”McCormack answered that in Phase 1 and 2 all lots aren’t built out and some are combined there as well.

DeMaynadier noted that all sites have to show approval of on site septic systems according to Section 216 para 11 of the subdivision control ordinance.
Tech review stated that applicant complied with their 12 items requested.

DeMaynadier motioned and Ohlmansiek 2nd to deny based on paragraph 216 Paragraph 11 – that all septic locations weren’t shown as approved.
Motion failed 3-3 (deMaynadier, Ohlmansiek Held-ayes vs. Hughes Kraus, Laws, Nays)
Geisel said they could do Mound systems.
Kraus, Jr. motioned and Laws 2nd to table to get fence settled. Motion failed also 3-3.
The board offered no further motions. The application is denied due to the lack of motion to approve.

2. Zone change from Ag to R for Maxwell and owner Lonnie and Sally Steele on 124.81 acres on Mt. Pleasant Road- previously tabled.
Laws stepped down for this request.
Changes were made to the plans. The applicant will widen Mt. Pleasant by 2 ft along the development and later in the discussion agreed to fix the vertical alignment (dip) on the southern end of the development on Mt. Pleasant with the county engineer’s approval.
Randy Maxwell presented. Future connections will be made in the plan but Maxwell would not commit to any unless the proposed connection has property values similar to what was in this development.
Maxwell says they have the 50 ft ROW needed.
Ohlmansiek asked about common areas- greenspace- Maxwell said there were 3.
Hall asked about the driveways along Mt. Pleasant. Maxwell said they would be combined and share driveways.
Maxwell agreed to written commitments on density level and street configuration. Maxwell noted there would be some changes in the plans- though minor only.
Sandra Weisgerber wants a fence between this and her land and also a connection to this subdivision to her land. This was not guaranteed.
Maxwell replied to Mitter’s question about the 3 future access sites on the west as being located to avoid ponds and homes in the way.
DeMaynadier motioned and Held 2nd for a Favorable recommendation to change the zone from Ag to R with staff written commitments and land certification plus road widening with the hill addressed as corrected by the cty engineer. Specifically: Certification of land use restriction with the maximum density as agreed. Concept development plan and street plan to match to a significant extent at primary approval and roadway improvements required as depicted on the plat with 2 ft on Mt Pleasant to North Dearborn and a design to improve the vertical profile on the south end of the property.
All ayes. Passed.

NEW BUSINESS:

3. Major revisions to the primary plat approval for Whitewater Point Subdivision on Barber Road by Whitewater Point, LLC (Maxwell Development) in Logan Township on 208.25 acres. This was rezoned R-DP/A

Mark McCormack stated that if the applicant doesn’t live up to the written commitments the zone change reverts to Ag.
One of those requirements was that there was adequate sewer capacity at St. Leon to serve the sub’n. The other two were for feasible roadway design for Chapellow Ridge and also the commitment to connect Chapellow Ridge to Barber Road prior to 2ndary plat submittal.

The legal remedy suggested for Maxwell was to remove the lots for septic from the subdivision. Approximately 90 acres and 5 lots were to be removed. There was no evidence of the suitability of any of these lots for septic. The PC staff and Health Dept opinion was that under no circumstances should there be 2 or more portions of a named subdivision served simultaneously with sewer and individual septic systems.

Randy Maxwell stated that they made a mistake and had originally planned to serve these lots with septic. They are just clearing up something that was previously left out. The Health Dept was out and there were numerous septic sites per lot. They could leave it R or revert to Ag- either way was OK with them.

Doug Garner and Matt Fellerhoff (of Manley Burke) represented Helen Kremer and contend that this would effectively revert the entire parcel back to Ag. They said the density effectively increases on the entire parcel when this 90-acre section is removed. Mitter asked Fellerhoff if he knew of any case law that supported this. He said- "No." He asked if he knew of any statute that supported this. The answer was also "No."

Kathy Scott- gave a 3-paragraph statement that showed the history of the zone change and primary plat approval. After being interrupted a few times by Chairman Mitter who wanted to be sure the road was not being brought up, Scott insisted that the geotech study on the road was not approved yet and therefore the primary plat was still pending and not approved yet either. So there is nothing to effectively revise.

Cliff Eibeck wanted to know if the ground was tested and who did it and when. He had heard they couldn’t afford the pipe and pumping to those lots and that’s why they weren’t going to sewer them.

Ralph Thompson asked if the 2nd subdivision gets sewer later, can they increase the density of it? The answer to this question was yes that was possible.

Maxwell stated- we messed up- we didn’t show this on the original plat. Mitter heard the lift stations were expensive. Maxwell wanted that not to be discussed- insisted this was just a mistake that they left off. They don’t intend to increase the density on the project as a whole.

Mitter read Fellerhof’s letter to himself at this point.
Below is a copy of the body of that letter for the record.

I represent Helen Kremer, Trustee of the Helen Kremer Trust. The Trust's property is located adjacent to the property in question. I appear before this Commission with the assistance of Douglas Garner of Zerbe, Zerbe & Garner, located in Lawrenceburg, Indiana. The new submission by Maxwell Development is in violation of the zoning conditions placed upon the larger tract of property (including these five parcels), when the original zone change was approved. This new submission is contrary to those conditions and this Commission must, therefore, consider the submission as a submission under the (A) Agricultural designation. Any attempt to consider this under the Residential (R-DP) district, without compliance with the conditions, would result in a zone change enacted in violation of the procedures outlined in Article 5 of the Dearborn County Zoning Ordinance.
DISCUSSION
On January 24, 2005, a hearing was held to evaluate an application made by Maxwell Development for a zone change for 182 acres of a 208-acre parcel from (A) agricultural to (RDP) residential to allow for a single family residential use. At this hearing, the plan commission gave a favorable recommendation to the Board of Commissioners, "contingent upon a written commitment from the applicant to include: 1) adequate sewer capacity exists or will be required by St. Leon Utilities; 2) a feasible roadway design for Chappelow Ridge Road will be engineered; 3) a connection of Chappelow Ridge to Barber Road will occur prior to secondary plat approval." To date, none of these conditions have been realized.
On March 1, 2005, via ordinance 2005-1, the Board of Commissioners of Dearborn County approved the rezoning of the 182-acre tract from (R) residential to (A) agricultural, "subject to any conditions imposed by the Plan Commission." The plan commission approved the primary plat for the rezoned tract on March 28,2005. This tract of land currently includes 126 parcels of land, five of which will abut Barber Road and are larger than the other parcels in the development. The approval of this primary plan is contingent upon several factors, including the rezoning of the tract from (A) to (R) residential. Without the proper zoning in place, development of the proposed parcels included in the primary plan may not take place.
The conditions that must be fulfilled prior to the rezoning of this tract of land were agreed upon by the applicant in accordance with Section 550 of the Zoning Code:
Section 550 Written Commitments
The Plan Commission may require a written commitment executed by the applicant/owner in conjunction with a favorable recommendation of a Zoning Map amendment. Failure to comply with any written commitment shall be considered a violation of this ordinance and shall be governed by Article 6. Any written commitment shall be recorded as described in Section 560 and shall be binding on the owner, subsequent owner, or person who acquires interest in the property.
The Plan Commission shall forward to the legislative unit, as part of the certification of the recommendation, the written commitment incorporated within its motion for approval,. The written commitment shall be signed by the owner and any other appropriate person indicating agreement with the terms of the written commitment. The legislative unit may adopt or reject the application and written commitment pursuant to IC 36-7-608. Any written commitments made as part of the OrdinancelResolution for approval of the rezoning by the legislative unit shall be prepared in writing and signed, as stated above, and recorded as identified in Section 560, by the Planning Department. The enforcement, interpretation, and administration of the written commitment shall be the responsibility of the Plan Commission.
The applicant has not fulfilled any of the conditions required for approval of the rezoning of the entire tract from (A) to (R). Approval of the modification will not, as the applicant claims, "allow [them] to move forward with the platting and sales of the lower lots, via administrative minor subdivision." Section 236 of the Dearborn County Subdivision Control Ordinance requires consideration of whether the plan is consistent with the Dearborn County Zoning Ordinance. If the conditions of the rezoning approval are not met, the approval is not valid, and therefore the entire 182-acre tract as submitted in January 2005 reverts to the (A) Agricultural zoning designation that was in place prior to the conditional approval.
The applicant would like to move forward with development of a portion of the tract in question because, "the conditions of our rezoning will not be met in the short term to allow for us to move forward with the entire subdivision at once." The applicant may only "move forward," with the "platting and sales of the lower lots" with the proper rezoning in place, as these lots are part of the original rezoning application. Further, such piecemeal approval of separate tracts from a previously approved plan does not represent good planning practice and is in conflict with the approved plan.
The application should also be denied because there is no evidence related to the suitability of the proposed sites for individual sewage disposal systems as required by Section 232, Item 29 and Section 216, Item 11 of the Dearborn County Subdivision Control Ordinance and 2526 of the Dearborn County Zoning Ordinance. The fact of the failure to comply with these provisions is detailed in Item 6 of the Staff Report.
We ask that the plan commission deny the request for modification to the Whitewater Point Subdivision primary plat. Approval will not allow the applicant to move forward with development of the lower lots from the primary plan, as the conditions of the rezoning have not taken place and the failure to do so ultimately results in a change to the prior (A) Agricultural zoning designation for the entire 182 acres.

Laws noted- first the people were opposed to R now they oppose Ag!
McGill noted there was no case law either way.
Mitter wondered if this was the proper process for the applicant. The ordinance has a section addressing the issue of changes. He thought this was less invasive and couldn’t see any negative impact on surrounding property owners.
DeMaynadier said- we can let the lawyers make new case law here if they choose to.

He decided to go ahead and approve according to the motion from the tape typed by the Plan Commission staff:

Motion for Whitewater Point.

Mr. DeMaynadier made a motion to approve the request for the application based on the following discussion of the Board Members:
1. There is an absence in case law, statute, or ordinance that can be identified to go against the application.
2. The language of the Ordinance, Section 288-contemplates that developers or applicants may find it necessary to make changes and those are recognized as a typical part of the development process.
3. Due process of this hearing has been fair. We followed our Ordinances and State Statute requirements.
4. The change requested is more restrictive on Applicant then they originally got permission for.
5. There is no net adverse impact on the totality of the property in question.
6. The spirit and the substance of the Ordinances of the County are protected, in that the original conditions that were placed on the rezone still have to be met for it to ultimately be in effect and for the development to go forward.
7. That there be no lots on Barber Road at this time.
Mrs. Ohlmansiek seconded.

Vote: Mr. Hall, Mrs. Ohlmansiek, Mr. Laws, Mr. DeMaynadier, Mr. Held, Mr. Kraus in favor. Mr. Hughes opposed. Motion carries.

These approximately 90 acres of 5 lots are now split off and they have reverted to Ag. P&Z will get a legal description of that and an amended primary plat for the remaining lots on the other piece.
Unless they use the current lot lines that are on the original primary plat approval, before they sell these lots they will have to come to minor sub’n approval. If they have to build a road to them or if they realign the road or build a new one they will have to come back to PC with a new sub’n application. Or do it administratively depending on how many lots and access, etc.

[NOTE: after the meeting I was given a copy of an ad from the 21 Sept 2006 Register. It reads Acreage and nice building for sale. Minutes to I-74, Sunman Dearborn school district, Cincinnati phones. West Harrison, Barber Road. 6 sites available from 4-30 acres. 812-637-5127 or 513-284-0717. The local phone number in this ad belongs to Randy Lyness of Maxwell Development. Would anyone care to comment on the applicant’s confidence of approval?]

[Note: It seems like this development has cost the developer, the county, and the opposers a lot of money. The roadway geotech analysis has been going on for months while the applicant is searching for an economically feasible way to build a steep road to the great view at the top. The county has to spend money on their consultant to see if the opposing answers they are getting from the applicant’s and opposer’s engineers and geotech studies are valid. Whenever there is this much disagreement on a structure the question we should be asking is- WHY ARE WE PERSISTING IN DOING IT? We are not hurting for development sites or lots to build upon in this county. We don’t have to use questionable sites. Sometimes an applicant spends so much money they find it hard to back out. Sometimes we just like to prove we can do something. Personally, I think this may be a big mistake. Getting an engineering stamp of approval may make the construction people feel secure. But the bottom line is- if it fails, everyone connected to it pays either in investment loss or reputation. That includes the buyers, the neighbors, the sellers, the developers, the excavators, the engineers, and the county officials who let it happen. Maxwell has a reputation for doing some fine work in the county. I would hope that this doesn’t end up being an example of something that diminishes that reputation.]

4. Gregory Gerold with surveyor Roger Woodfill received approval for a variance of Article 3 section 315c for a local driveway outside a panhandle on 10 or 80 acres on North Hogan Road in Manchester Township.
DeMaynadier motioned and Hughes 2nd – all ayes.

ADMINISTRATIVE:

1. Board approved a 1-year extension and no more for Stonebrook estates on US50 outside Aurora identified as land with Fehrman realty sign outside. Laws abstained.

2. Date set for Land Use Advisory Board meetings was Oct 18 following the Oct 16 OKI meeting and also Nov 6th.

3. Tax sheets and school info was passed out along with a news release on that meeting,

4. US 50 meeting was at LHS 6-8 on Tues evening.

5. Old Orchard complaint- neighbors were advised to see commissioners first. Staff is also reviewing tape of 11/1999 commissioners meeting obtained from Cliff Eibeck.

Meeting adjourned at 11:55 PM

Christine Brauer Mueller
Lawrenceburg Township