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APC MEETING APRIL 8, 2013

The White County Area Plan Commission met Monday, April 8, 2013, at 6:00 p.m. in the Commissioners’ Meeting Room, Second Floor, County Building, Monticello, Indiana.

Members attending were: Charles Anderson, Jim Annis, Mark Bentlage, Richard Lynn, Jim Mann, Dennis Sterrett, Dave Stimmel, and Donald Ward. Absent members were: Dave Rosenbarger, Mike Smolek, and Brad Ward.

Also attending were Attorney Abigail Diener, Executive Director Joe Rogers, and Administrative Assistant Erin Carlson. No visitors were in attendance.

The meeting was called to order by President Charles Anderson.

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Business:

Minutes: There was a motion by Dave Stimmel to approve the minutes from 3/11/13 and 3/25/13, and a second by Richard Lynn. All members in attendance voted 8-0 to approve the 3/11/13 minutes. The 6 members in attendance, who were also present at the 3/25/13 Special APC meeting, voted 6-0 to approve said minutes.

Schaefer Lawsuit Review: Director Rogers reminded the Board that, in his recent annual report, there were 2 legal actions still pending. He noted that there is nothing new at this time on the first matter, Lewellen, but that the Schaefer matter has been escalating. He then read the following summary of the Schaefer lawsuit into the record:

On June 25, 2012, the Area Plan Office received complaints from two individuals, that the property located at 3352 N. Shore Acres Court was being illegally operated as a resort. According to the complainants, the resort usage was resulting in activity which was detrimental to the surrounding residential community.

On June 26, 2012, I sent the owners of the property, Nole and Katherine Schaefer, a warning ticket advising them of the complaint and providing them an opportunity to either dispute the complainants’ accusations or bring their property into compliance with the White County Indiana Zoning Ordinance.

On June 28, 2012, Ms. Schaefer called the Area Plan Office and she and I spoke. At the time, she disputed the zoning designation listed in the warning ticket and claimed the site was a single-family dwelling used solely for the owner and their “guests”. During our conversation she admitted that they did charge a rental fee for many of their “guests”. She indicated that she would be sending a formal response to my office disputing their use of the property as a resort.

On July 2, 2012, Mr. & Ms. Schaefer visited the Area Plan Office and requested a conversation with me. During this conversation, Mr. & Ms. Schaefer argued that the complaint was not valid since the property and developments are used as a single family dwelling and not a resort. Upon completion of our conversation, the Schaefers left a letter reiterating the points made during their visit. These points were consistent with the points Ms. Schaefer had made during our earlier phone conversation.

On July 10, 2012 I visited with neighbors of the Schaefers and discussed with each of them any issues, concerns or problems they had with the activity at and use of the site in question.

From July 10-16, I researched and considered the information I had received from all parties and looked into the standards established by the White County Indiana Zoning Ordinance.

On July 16, 2012, I summarized my findings in a letter to Mr. & Ms. Schaefer. I found them in violation of the zoning ordinance and issued them a warning for illegal use of the property within the designated L-1 zoning district. I had determined the property owners were utilizing the property as a Vacation Rental By Owner (VRBO). There is no such designation in the Zoning Ordinance Use Chart, therefore, the use is either an illegal use and therefore not permitted or the use must be comparable to a line item which is in the use chart to which I can then apply the permitted use designations to the unlisted use. In this case, I had established their use most closely resembled our definition for a Boarding House, so those permitted use designations were applied. A Boarding House is not permitted in an L-1 Zoning District; therefore, their use was in violation of county zoning ordinance. Enforcement procedures were advanced accordingly. The property owners were given until August 15, 2012 to bring the property into compliance and advised of their appeal rights to this decision.

On August 15, 2012, the Area Plan Office received a correspondence from attorney Don Blair expressing disagreement with the letter issued to Mr. & Ms. Schaefer.

On August 16, 2012, I issued a letter to the Schaefers advising them that Mr. Blair’s communication did not constitute a proper appeal of their disagreement and issued a citation and fine.

On August 23, 2012, Mr. Blair, on behalf of Mr. & Ms. Schaefer, filed suit against the White County Area Plan Commission.

Since that time there has been posturing and maneuvering on the part of Mr. Blair and the Schaefers which led our previous attorney, Mr. Ben Diener, and I to believe an out-of-court settlement could be reached.

These settlement activities have been off and on to where they appear to be no more than a delay tactic on the part of the violators. The property owners continue to utilize the property for illegal rental purposes. Thus, in February of this year, I requested that Ms. Abigail Diener, APC attorney, take the offensive in an effort to bring this conflict to a conclusion.

Following the above summary, Director Rogers stressed his concerns that what the Schaefers have attempted to do is this. They purchased the house when prices were down, started renting it out, made improvements and converted bedrooms without any Building Department permits, and operated it commercially. Once Director Rogers laid out for them the definition of a resort, and the fact that they did not meet those criteria, they attempted to make modifications to allow them to claim resort status. Mr. Rogers sees this as a serious problem separate from the Schaefer lawsuit. He does not want to see other property owners able to do this - just buy a house in a residential district and convert it for commercial use without any review or consequences.

Back to the Schaefer case specifically, there are $4950.00 in fines due at this time. Fines stopped accumulating once the Schaefers' court action was filed. There was $1700.00 in legal fees by the end of last year. We did offer to settle, allowing the APC to recoup legal fees and the accrued fines. It seemed the Schaefers might have settled, but only if they were allowed to continue operating commercially.

Ms. Diener stated that we have filed a Motion to Dismiss, since the Schaefers did not exhaust their appeal remedies through the BZA. However, she doubts that the dismissal will be granted, and feels that Judge Thacker will wish to hear the case on its merits. He may send it back to the BZA, or take some other action. Since we've stopped getting any communication from the Schaefers' attorney, Ms. Diener has filed a motion to get the Motion to Dismiss back on the court's calendar.

She and Director Rogers advised the Board that, very recently, the Schaefers have begun building a deck on the property without a building permit. They had applied for one, but Mr. Rogers denied the necessary Improvement Location Permit due to the ongoing violations. Nole Schaefer called him and asked what legal basis was used for this denial - Director Rogers referred him to the State statute and White County Zoning Ordinances which pertain to this issue. We have learned since then that the deck is underway, regardless of the denied permit. We have been unable to red tag it, however, as it appears the Schaefers were forewarned we were on the way.

Ms. Diener outlined 2 possible ways to proceed. The first would be to file for a preliminary injunction to stop the building of the deck and all resort/commercial activities. This would result in the issuance of a new cause number, and there would be a hearing to determine if the Schaefers would indeed have to stop their activities.

Secondly, we can move forward on suing for all fines and costs. The only suit on file at this time is the Schaefers' lawsuit, which states that Joe Rogers violated their due process and is negligent in not allowing them to operate their business. We have not gone on the offensive to date, but we have that option now.

Director Rogers stressed that, in his opinion, if we don't follow through on this issue, it will become very difficult in the future to enforce our use chart. He feels strongly that the office did nothing improper, that all correct procedures, notifications, etc. were followed. Ms. Diener agreed that the Schaefers were given every opportunity to appeal, via very clear-cut instructions via Area Plan office correspondence and enclosed forms.

There was discussion among the Board about these options. Dave Stimmel moved that Ms. Diener move forward with a temporary injunction and action to collect the fines and fees in question. Jim Annis seconded. Motion passed with a vote of 8-0.

Amendments (Appendix A, Chapters 2, 3, 8, 14): Director Rogers reminded the Board that the Ordinance amendments at issue have been in the works for approximately a year and a half. We had reached a point where we thought they were in good order and ready to present for approval, when we had a change of attorney. The past and current attorneys have interpreted some of the statutes relating to manufactured homes differently, which resulted in the reformation of a manufactured homes committee to iron out what amendments were necessary. That process is now complete, and the amendments relating to manufactured homes are now ready for the Board's approval. Mr. Rogers referred the Board to the original amendments packet that they have reviewed, as well as the supplementary revisions summary provided to the Board 10 days ago for their review. He then outlined the additional changes made via those attachments [all amendments, summaries, and supplementary documentation reviewed by the Board are on file at the Area Plan Office].

Director Rogers noted the following regarding the proposed addition of "Agricultural Service and Support" to Appendix A (the use chart). This new category is defined as business which provides a direct service or product in support of farming activities or which manufactures or produces a product to be utilized by the farming community. The staff initially recommended that this use be permitted in A1, A2, and I2 zoning districts. Director Rogers was approached by APC Commissioner Mike Smolek earlier today, who also requested that it be permitted in the I-1 zoning district, and Director Rogers concurs. This new category will resolve an ongoing issue, in that many agriculture-related businesses have not been historically listed in the use chart, and have therefore not been allowed in agriculture districts.

There being no further questions from the Board, Don Ward moved that the amendments as presented be approved as a whole. Jim Mann seconded. Motion passed with a vote of 8-0.

President Anderson asked for clarification on the addition of the I-1 district as permitted for the new use category of Agricultural Service and Support. He asked if the Board should make a motion on this separate item. Don Ward moved that Agricultural Service and Support be a permitted use in I-1 districts, as well. Mark Bentlage seconded. Motion passed with a vote of 8-0.

Retention of APC Meeting Tapes: Director Rogers asked the Board to consider retention requirements for old minutes tapes (those used before the new computerized recording system was in place). He advised that the State only requires these tapes to be kept until the meeting minutes have been approved. Since all minutes recorded on those tapes have indeed been approved, the Area Plan office would like to destroy the tapes, since they are obsolete at this time.

Dennis Sterrett moved that the Staff be allowed to destroy the tapes. Jim Mann seconded. Motion passed with a vote of 8-0. Director Rogers advised that the current digitized minutes would not be destroyed, unless and until they too become obsolete.

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Subdivisions:

None

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ContinuedRezones:

#1008 Smith Erickson Farms Inc; requesting a rezone from A-1, General Agriculture District to A-2 Agricultural Industry District.


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There being no further business, President Anderson adjourned the meeting at 6:40 pm.

Respectfully submitted,

Donald W. Ward, Secretary

White County Area Plan Commission

Joseph W. Rogers, Executive Director

White County Area Plan Commission

Document Prepared By: White County Area Plan Secretary, Erin Carlson “I AFFIRM, UNDER THE PENALTIES FOR PERJURY, THAT I HAVE TAKEN REASONABLE CARE TO REDACT EACH SOCIAL SECURITY NUMBER IN THIS DOCUMENT, UNLESS REQUIRED BY LAW.”


EXHIBIT A

WHITE COUNTY AREA PLAN COMMISSION

PUBLIC NOTICE OF REGULAR SESSION

 

April 8, 2013 - 6:00 p.m.

2nd Floor Conference Room

White County Building

Monticello, IN 47960

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AGENDA

6:00 P.M.: The White County Area Plan Commission will meet in Regular Session pursuant to Indiana’s Open Meetings Law, I.C. 5-3-1-2 (b):

READING OF THE MINUTES – March 11, 2013; March 25, 2013

BUSINESS –

1. Schaefer Lawsuit Review

2. Business Continued from 2/11/13:

a) ContinuedTo 5/13/13Amendments (Appendix A, Chapters 2, 3, 8, 14)

b) Flood Plain Ordinance

c) Road Center Line/Right-of-Way (Continued)

d) Manufactured Homes Enforcement (Continued)

e) Signs on Farm Property - Off-Premise & On-Premise (Continued)

ContinuedREZONINGS –

1. To 6/10/13#1008 - Smith Erickson Farms Inc, continued: Requesting a rezone from A-1, General Agriculture District to A-2 Agricultural Industry District.