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The White County Area Plan Commission met Monday, August 18, 2008, at 7:30 p.m. in the Commissioners’ Meeting Room, Second Floor, County Building, Monticello, Indiana.

Members attending were: David Rosenbarger, Charles Anderson, Gerald Cartmell, Donald W. Ward, Dennis Sterrett, Greg Bossaer, and David Scott. Also attending were Attorney Altman and Director Weaver.

 

Visitors Attending were: Don Blair, Michael Spear, Charles R. Mellon, John Hanik, John J. Powers, Tom Banks, Connie Neininger, Margie & Jim Reynolds, Diana Wentzele, and Kevin Ward (Deputy).

The meeting was called to order by President Charles Anderson and roll call was taken. Don Ward made a motion to dispense with reading and approve the minutes of June 09, 2008 meeting. Motion was seconded by Vice President Dave Rosenbarger and carried unanimously.

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#958 Marian Rubber Products Co., Inc.; The property is located on Lot 20, 21, 22, and 60’ x 108’ between lots 19 & 20 in Joseph Holtam’s Addition, in Honey Creek Township, located in the Town of Reynolds at 801 E. 2nd Street. Continued from August 11, 2008.

Violation: None

Request: They are requesting to rezone from I-1 to B-2.

President Charles Anderson asked, do we have anybody here representing that request?

Connie Neininger stated, Diann, did Mr.Ennis inform you that I would be …

Director Weaver stated, not that I’m aware of no.

President Charles Anderson stated, that’s ok, do you want to represent him?

Connie Neininger stated, yes, he asked that I represent and I thought he had said he had…

President Charles Anderson stated, go ahead and state your name for the record.

Connie Neininger stated, representing Fred Ennis and Marion Rubber Products.

President Charles Anderson asked, the Commissioners have any questions about that request? Anybody in the audience have any questions about the request.

Don Ward asked, why do they want to go to B-2? That’s what they are now isn’t it?

Connie Neininger stated, no they are industrial now, there…

Don Ward asked, no I mean their business though aren’t they?

Connie Neininger stated, right, and they were…

Don Ward stated, they were industrial.

Connie Neininger stated, when they put the Post Office in there, they, they didn’t realize it needed to be zoned that, that it was satisfactory to an I-2 zoning and then their wanting to put in another business on the other side at this point and time, so that’s one, in checking with all of that and the building permit they found out that it was not zoned that it really should have been zoned B-2. And so that’s why they’ve requested the rezoning.

President Charles Anderson asked, any other questions at all? I’d say lets go ahead and vote.

The results of the vote were as follows: 7 affirmative and 0 negative. This will be presented to the Town Board of Reynolds for their final action. I can tell you we forward this almost immediately to the Town Board, but we’re never quite sure when they will handle this or when their next meeting is that they would handle it in. Anybody else that’s interested here so that you know when it will be disposed of by then.


Connie Neininger stated, thank you.

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#959 James C. & Margie L. Reynolds.; The property is located on Lot 15 and Part Lot 10 in Leisure Acres Estates, in Union Township, located North of Monticello, West of CR 400 E. on the South side of Potowatomie Drive. Continued from August 11, 2008.

Violation: None

Request: They are requesting to rezone from A-1 to R-1.

President Charles Anderson stated, this was continued also from last meeting. We have somebody here representing request? You want to come forward and state your name.

Jim Reynolds stated, Jim Reynolds, property owner.

President Charles Anderson asked, the Commissioners have any questions for Jim?

Don Ward asked, why do you want to rezone?

Jim Reynolds stated, to meet setbacks on the back of the property line.

Director Weaver stated, this is actually in a platted subdivision that was done prior to area plan so it’s still zoned A-1.


President Charles Anderson asked, anybody in the audience have any questions about that request at all? If not, I’d say lets go ahead and vote then.

The results of the vote were as follows: 7 affirmative and 0 negative. This will be presented to the County Commissioners for their action.

Director Weaver stated, County Commissioners are going to hold a special meeting, so that meeting is going to be Thursday morning, this coming Thursday morning at 8 a.m.

Attorney Altman stated, so that is the notice, if you’re interested be there, they have the final say on that.

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#08-11 Spears Beach Vue Resort, LLC; Requesting Primary and Secondary approval of a Planned Unit Development to be known as Spear’s Beach Vue Resort Condominium on Lot Numbers 27 & 28 in Untalulti Addition, located in Union Township, at 2367 N. Untalulti Drive.

President Charles Anderson asked, do we have anybody here representing that request?

Donald Blair stated, just I. My name’s Don Blair, I’m attorney, I’m representing Beach Vue Resort. I’m here with Mike Spear who is the manager of the limited liability company. I have given you a handout/brochure and starting on the 3rd page it summarizes what the application is all about. Actually it’s on the 4th page. A little bit of history on the real estate. It was acquired by Mike’s father, Vern Spear, in 1968. Mr. Spear used it to rent on a weekly, monthly, daily, yearly basis. Mike acquired the real estate in 1994 from his father’s estate and has continued the same use since then. He sold off Lot 26, leaving him with 27 and 28, that included I believe about 11 cottages.

Michael Spear stated, 10.

Donald Blair stated, in 2006 under Indiana Law he developed condominiums on the property. When he attempted to transfer the real estate and record the condominium documents the White County Auditor balked said you cant do it and then when threatened with a lawsuit she omitted. The real estate was transferred, the condominium documents were recorded. At that point, Area Plan filed its lawsuit. The lawsuit sought injunctive relief and it was based upon the contention that there was a change in use. Among the contentions of the lawsuits the use of lots 27 and 28 etc. I’m taking this directly from court papers filed by area plan. Was an existing non-conforming use, i.e., the lots were owned by 1 person or entity, the lots had existing cottages built in 1918 and these cottages were rented. Number 3, they were used for recreational purposes, 4, on short term basis, by the day, week, or month. The lawsuit is flawed and one that should never ever been filed. First, the subdivision has nothing to do with condominiums formed under I.C. 32-25. In the State of Indiana. There is expert testimony of Phil Nicely an Indianapolis Attorney with the Firm of Bose, McKinney & Evans. There is also expert testimony from Conrad Maugans of Kokomo who is with the firm of Bayliff, Harrigan, Cord & Maugans. First, they are going to say, they are going to testify in court, White County Zoning Ordinance does not apply to Condos, Condominiums, 2nd, even, even if it applied, their going to say it doesn’t apply. Even if it applied, Beach Vue is not in violation of the ordinance. The lawsuit should never ever have been filed. What it has done, what it has done, what the lawsuit has done, Mr. Spear, can not sell 1 piece of property because of Area Plan’s lawsuit. To date, I’m speaking of just expenses that he’s incurred. He has expended, in has cost him in excess of $35,000 because of the lawsuit. This does not include loss of sales of his Condominium Units that he can’t sell this minute because of the lawsuit and we’re talking about real big numbers at that point. During the course of the lawsuit it was learned that an employee of Area Plan Commission secretly recorded a telephone call, I don’t know how it happened, why it happened, I’ll never understand, it’s a mystery. There have been 2 tort claims served upon White County. One is for filing the lawsuit to begin with which should have never have been filed. The second one arises out of the secret phone call where in Mr. Spears telephone conversation with a member, a employee of Area Plan was recorded, he didn’t know about it, he certainly did not consent to it. If you go to page 3 of the brochure, I have summarized the proposed settlement that was reached at mediation on July 31, 2000 of this year. If you take a look beginning, under, at page 3 at the top. One of the conditions is that we prepare and file all necessary applications and documents for consideration by you all as board. This has been done. 2. Area plan will pay up to $1000.00 of any additional cost incurred in filing the plans. There’s survey work to be done by the surveyor, and I believe that has been done, has it not. Dan Miner of Kokomo is the surveyor of the Job. Area Plan is to pay up to $1000.00, not to exceed 1000 for any of Mr. Miner’s expenses. The applications, this is 3rd condition. The applications would be approved and Beach Vue would be able to market its condominiums and that the conveyances would be considered in conformity with planned unit development under White County Zoning Ordinance. Probably not necessary, but we agreed to it. Why did we agree to the settlement if we’re going to win in court anyway? To expedite the matter. We want the matter moved on. We do not want prolonged litigation, it’s costing Mr. Spear a great deal of money. 4th item of the settlement, Area Plan issue a written apology to Mr. Spear for the recording of the telephone conversation with him when he didn’t know it was being done. The 5th condition, Area Plan pays all cost of mediation. I believe I seen Mr. Bumbleburgs' bill and I believe it’s in the neighborhood of $1500.00 I’m not certain of that. Finally, anything you do here tonight, with regard to approval of the settlement may or may not be meaningful. And I say this because. There has been a companion lawsuit filed by a purchaser who is trying to get title by Mr. Spear but he cant give good title to the buyer, that purchaser has sued Mr. Spear. Now White County, recently, and when I say recently, last Friday, that was the day that the responses pleadings of the lawsuit were due, White County has been made a party to that lawsuit wherein I am asking on behalf of Mr. Spear that White County indemnify Mr. Spear for any damages he incurs because of the lawsuit and he should be indemnified. So anything you do here tonight is subject to the lawsuit by the 3rd party purchasers being resolved. I’ll try to answer any questions you have. If you have them please ask. Thank you very much.


President Charles Anderson asked, Commissioners have any questions for Mr. Blair? Does anybody in the audience have any questions for them.

Tom Banks stated, I do.

President Charles Anderson stated, come forward and state your name.

Tom Banks stated, hi, my name’s Tom Banks, I own Anchor Bay Resort. The property butting up to the 2 lots that are in questions here. I came in kind of late on this, I’ve been on travel lot on business and didn’t see what actually is proposed and I don’t know if I’d have any say in what goes on. But the way things stand as is, it’s been, I’ve had to call the police out a couple times to take care of some of the problems out on the properties the tenants that you have, you’re so called condominiums and I would really like to see some of that stuff addressed. See what the plans are, if they are condo’s if they have to meet certain aesthetic rules, things like that that most condominiums have to come up with instead of everybody free for all do what they want, so that’s all, the only input I have, first board meeting I have been with, I don’t know if I have rights to that kind of information to see what’s actually going to be done.

President Charles Anderson stated, as far as how the people act, that doesn’t have anything to do with area plan.

Tom Banks stated, I know not how people act but the setting in which people come from, the kind of element that’s drawn to a certain setting, that’s why there are typical, you know, I cant put a mobile home right next to a $100,000.00 home and so on and so forth, so what I’m getting at is the way the property sits currently, I was just curious, what is required of a property like that to be said for condominiums. I mean, that’s…

President Charles Anderson stated, Mr. Blair evidentially knows about Condominium Law, you want to …

Don Blair stated, Indiana Code, Title 32, Article 25, specifically sets forth the requirements for Condominiums. Those have been complied with. The condominium what is called floor plan in the statute is a matter of record, its available to anyone that wants to see it.

Tom Banks stated, that didn’t tell me anything.

President Charles Anderson stated, does the…

Don Blair stated, I was not involved in the Condominium Development process of this however, but it was done according to law.

President Charles Anderson asked, any other Commissioners have any questions about the Planned Unit Development or anything on that?

Vice President Dave Rosenbarger , asked, are you aware of Number 6, Jerry?

Attorney Altman stated, excuse me.

Vice President Dave Rosenbarger stated, page 3, article or section 6, line 6, settlement, the last thing he talked about, towards the front.


Gerald Cartmell stated, clear at the front, page 3.

Vice President Dave Rosenbarger stated, what Mr. Blair was talking about, holding Mr. Spear, LLC …

Dennis Sterrett stated, 3rd party suit.

President Charles Anderson stated, 3rd party suit.

Donald Blair stated, actually it’s a first party suit Denny, filed by, people by the name, one was Price. Jason Price. The other by Collins. They sued Mr. Spear because he can’t give good title to real estate. Why can’t he give good title? Because of this lawsuit.

Attorney Altman stated, more fully of the settlement of page, on number 8 I guess, 2nd page, and it just indicates parties acknowledge that theirs one lawsuit currently pending brought by Attorney Mays in Kokomo against Mr. Spear which must be dismissed to effect full settlement therein. This agreement is subject to obtain such dismissal. That’s what it, that’s what the agreement actually says.

Vice President Dave Rosenbarger stated, so those 2 people are the 1 lawsuit.


Donald Blair stated, they could, they could stop the whole deal, you approve it tonight, it doesn’t matter if they say we’re not going to dismiss our lawsuit, that simple.


President Charles Anderson stated, another thing, right now, the renters that are renting this aren’t actually, there’s a few condominium owners supposedly, but it’s still being rented out as rentals right now.

Donald Blair stated, there’s 1 condominium owner, Mr. Spear, nobody else can own it right now. There are contract purchasers, he can’t deliver title.

President Charles Anderson stated, right, but on the contract purchasers, they really aren’t the, right now you’re still renting it out as a resort. Part of it.

Michael Spear stated, I still have the lodge and the first unit as you come into the group and those are both rented out, and then I believe there is one other rented by the gentlemen that bought 1 of the units on contract.

President Charles Anderson stated, but the others aren’t being rented at the time right now.

Michael Spear stated, nah, in fact it has had very little usage for the last 3 years, it’s almost been totally empty.

President Charles Anderson stated, the commissioners have any other questions? Anybody else in the audience have any questions about that?


Don Ward asked, do you have as built plans for this? Aren’t they required on a condominium?

Donald Blair stated, I’m sorry.

Don Ward stated, do you have as built plans on all the buildings? I think that’s required on Condominiums on under Condominium Law.

Donald Blair stated, I don’t think so. When I say I don’t think so, I don’t think it’s required.

President Charles Anderson asked, we have questions.


Michael Spear stated, just point of reference to the gentlemen there that was asking, there are declaration that we have…

President Charles Anderson stated, covenants in there.

Tom Banks stated, I’ll give it back, if I can read it all in this amount of time.

President Charles Anderson stated, there’s a lot of things covered in that.

Tom Banks stated, yeah, I can’t read this all.


President Charles Anderson stated, yeah, take it with you.


President Charles Anderson asked, any other questions?

Gerald Cartmell stated, yeah, but what good’s it going to do them? He might as well just throw it in the air. Unless we vote it down since we’re backed into a corner. As you heard from the attorney there.

Don Blair stated, if I may address, what took place on July 31, there’s mediation. Joe Bumbleburg and I think some of you…

President Charles Anderson stated, which is another attorney.


Don Blair stated, are familiar with Mr. Bumbleburg, he does a great deal of real estate work, does a great deal of zoning work and he was the mediator on the case. At that point an agreement was entered into subject to, if you guys don’t like it, don’t approve it, you don’t do it, I can’t do anything about it. Well I can do, but, can do something about it, but, that is the reason we’re here tonight. An agreement was entered into based upon the 6 points I just outlined.

Gerald Cartmell stated, well that and were getting sued. I mean you know we’re trying to save the counties life here. You know, which is a, we’re admitting we’re wrong, but were not. But we’re admitting we’re wrong because its going to cost, we’re going to get sued if we don’t.

Don Blair stated, you’ve been sued anyway.


Gerald Cartmell stated, yeah, but we haven’t lost yet.

Don Blair stated, and the lawsuit that is the most pressing at this moment. Not this one. Not Area Plans lawsuit other than from the standpoint that it needs to be addressed, but most pressing at this moment is if Price and Collins were to prevail against Mike Spear you guys stand to lose a whole lot more money than you already have.


Gerald Cartmell stated, you said if.

Don Blair stated, sure, if. I don’t think they’re right. And I’m not going to go into why they’re not right because I’m defending the lawsuit and I’m not going to talk about that part of it right now, but should they turn out to be right, yeah, you got a problem.

President Charles Anderson stated, you want to state your name again, just for the record.


Tom Banks stated, my names Tom Banks, Anchor Bay Resort, all the information in regarding to the Condominium is in this paper? Pretty much, anything regards to the Condominiums what they need to look like, boundaries, aesthetics, utilities, setbacks, all that.

Don Blair stated, what is called floor plan. I will not proclaim myself to be an expert on Condominium…

Tom Banks stated, well that’s my question…


Don Blair stated, let me finish, let me finish, I’m not an expert on Condominiums and I’m not going to pretend to be, but one of the things that is required is a floor plan, that floor plan has been recorded with White County Recorder.

Tom Banks stated, you’re not an expert, you just said. So my question is, are any of you experts on this? You know what’s in here? So how can a decision be made tonight if we don’t study this.


President Charles Anderson stated, I read the thing, I know what’s in there. That doesn’t give, all it gives you is a site or the structures are already there, the structures are already measured out as far as what they look like, they look like what they look like right now.


Tom Banks stated, how bout a 5th wheel camper parked with, being plumbed to it. Does that count as a condominium?

President Charles Anderson stated, no, that should be removed if it’s in those sights.

Attorney Altman stated, it’s in there, and its would be approved.

President Charles Anderson asked, it is one of the condominiums?

Tom Banks stated, so that’s what I’m saying.

Attorney Altman stated, that’s right, it would be approved.

Tom Banks stated, well, I think that opens you up to a lot other things then, you start approving campers as condominiums, I don’t know, this is my first meeting, but that seems, if everybody doesn’t know what all the rules are, its kind of hard to make decision.


Dave Scott stated, if you guys go to court, you represent this guy, Mr. Spear, and so our life is going to be depending on you folks. Do we have, do we need to have legal counsel helping with his case against the people that are suing him? I mean we …

Don Blair stated, Ill welcome it, I’ll welcome it.

Dave Scott stated, well it says that we’re going to be party, we’re going to be fully responsible.

Don Blair stated, I think that’s a great idea Mr. Scott.


Attorney Altman stated, that isn’t what the agreement says. G of the agreement says, parties acknowledge that there is 1 more lawsuit currently pending brought by Attorney Mays of Kokomo against Mr. Spears which must be dismissed to effect full settlement herein and this is agreement is subject to obtain such dismissal.


Dave Scott stated, okay, if they settle.

Attorney Altman stated, if they settle with Mr. Mays lawsuit get dismissed and if this is approved, then the agreement is fully in force and everything is dismissed and settled.


Gerald Cartmell stated, so this was put in here afterwards then. After the agreement was all done with Bumbleburg and everything then this was put in there?

Attorney Altman stated, no, no, no, no, that was part of the agreement.

Vice President Dave Rosenbarger stated, the part of the agreement is that if we approve this, then part of that agreement is you got to get them to dismiss it or our vote didn’t count again.


Attorney Altman stated, that’s right, that’s basically, that’s pretty close to right, pretty close to right.

Dave Scott stated, okay, so you do have some incentive to win.

Don Blair stated, we all, we all have the same goal in mind, we’re all on the same side, except I wish you guys had never sued Mr. Spear and Beach Vue and you guys had no reason to do it.


Gerald Cartmell stated, we wish you hadn’t sued us either. I’m not an attorney…

Don Blair stated, I have not even talked about that point and if you take a look at attachments 4 and 7 you get the idea Mr. Scott, you do have the right idea, not necessarily a good idea for you all but you know what you’re talking about.


Attorney Altman stated, that this gets resolved and settled and it will go away.

Dave Scott stated, and if they don’t, then they go to court.


Attorney Altman stated, and we go to court too.

Dave Scott stated, we go to court also.


Don Blair stated, you’ve got 2 lawsuits, one that’s already there. I’m not talking about Area Plan vs. BeachVue Resort and Mike Spear. I’m talking about, Price/Collins vs. Spear. You’ve been made a party to that already, for indemnification and indemnification will be substantial but the 2nd lawsuit is going to be a whole lot more serious than that one. Financial.


Dave Scott stated, but my point is if you go against the other 2 guys…

Don Blair stated, Collins/Price.

Dave Scott stated, right, and you lose, then the County…

Don Blair stated, I wont say you’re going to be stuck, no, I wont say that, but you could be stuck for a whole lotta money because I have said in my part of the lawsuit where I have brought you in as part of the defendant if Mike Spear and Beach Vue Resort cost and expenses White County Indiana, you indemnify us for that, that’s the lawsuit that I have just brought you in as a party defendant, is it fun doing it, do I like doing it, no, I don’t like it don’t it, not fun, but its necessary to protect Mr. Spear, I represent Mr. Spear.


Dave Scott stated, I apologize, I don’t understand the law, I’m just trying to.

Don Blair stated, I don’t either many times.

President Charles Anderson stated, if there’s no other questions, I’d say lets go ahead and vote.

Don Blair stated, yeah, please ask if you have them. If I can answer them, ill tell you, Ill answer them for you, if I can’t, ill tell you I can’t answer them.


Gerald Cartmell stated, if we approve this or disapprove, whatever, then the Commissioners have the last say, right.

Director Weaver stated, yes, yes, it goes onto the County Commissioners at there meeting on Thursday.

President Charles Anderson stated, on a planned unit development.

Director Weaver stated, part of the primary approval.

Dave Scott stated, the only thing we’re approving here, or disapproving here is the planned unit development.

Attorney Altman stated, okay, announcing the results of PUD 08-11. The vote is 6 in favor 1 against. It will be forwarded with a positive recommendation.

President Charles Anderson stated, and this will be the secondary.

Attorney Altman stated, and then if theirs no improvements and we do a plat, this is ready for a second vote on secondary ballot, right Diann?

Director Weaver stated, yes. Commissioners approve primary.

Attorney Altman stated, right.

Gerald Cartmell stated, we’re voting sight unseen here right? One the secondary.

Attorney Altman stated, you’ve got the secondary right here. This is the 2nd. You got the plat.

Gerald Cartmell stated, no improvements.

Attorney Altman stated, no improvements, yeah, no improvements.

Gerald Cartmell stated, and if there are improvements what happens?

Attorney Altman stated, there are none.

Gerald Cartmell stated, next week they file for improvements, they want to do stuff.

Attorney Altman stated, no, improvements mean tiles, roads, that’s a, or drainage, none of that is going to happen. That’s what improvements are, its not new buildings or what have you.


President Charles Anderson stated, they got to go thru this for improvements anyways.

Gerald Cartmell stated, just asking.

Attorney Altman stated, I understand, improvements have different meanings and then here it means that it would be like roads or that sort of thing or utilities or that sort of thing Gerald.

Dennis Sterrett asked, supposed to vote?

President Charles Anderson stated, yes.

Attorney Altman stated, vote on the secondary ballot on application number 08-11 as 7 that the standards of the planned unit development have met met, primary approval has been granted, planned development is in compliance with for secondary approval. All under the old ordinance.


President Charles Anderson stated, and then the Commissioners have the final say.

Attorney Altman stated, that’s right.

Director Weaver stated, this will be forwarded on to the County Commissioners for Thursday morning 8 a.m.

Don Blair stated, thank you very much.

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President Charles Anderson stated, next on the agenda would be business. Do we have somebody here that’s... Do you have any new or old business? I think we’ve got somebody here that wants to…

Director Weaver stated, I don’t have anything.


President Charles Anderson asked, do we have anybody that wants to address the board about the …

John Hanik stated, good evening’s lady and gentlemen.

President Charles Anderson stated, is it a drives that are going on, is that what they are.

John Hanik stated, I’m sorry sir.

President Charles Anderson stated, you had something about 2 garages that are being built.

John Hanik stated, yes sir, yes sir. First off, my name is John.

President Charles Anderson stated, you want to state your name. Go ahead and state your name.

John Hanik stated, my name is John Hanik, I have my house at 5505 N. West Shafer Drive. Right across from the pit stop if everybody knows where it’s at. My neighbor John Powers, he and I are neighbors, these 2 houses and these 2 proposed garages are in between us, okay, and what we’re here for is to bring to the boards attention a serious safety issue. A safety issue for the public as well as our families, okay. It wasn’t known to us until a few weeks ago that she had applied for a permit to build these garages and we got wind of it. She had submitted plans giving false information as to the lot lines. It was brought to the attention of the building commission and they put a hold on the permits okay because the numbers don’t add up, okay, here’s the proof. Subsequent to that, when they put the hold on the permit, she’s redone the surveys again, she’s changed surveys that are 54 years old. I mean, I know my lot lines, I’ve got my stakes there, now I’m losing another 2 foot of property so that she can make these garages fit.

President Charles Anderson stated, did you call a surveyor in to have that surveyed, is that…

John Hanik stated, there’s so many surveys out there you’d think she was going to build an airport, there’s so many markings, seriously. We’ve got more stakes, and markings on the ground, the road has got s takes in the road, its ludicrous, it really is. And here’s the original thing of the property and it’s all changed. I brought pictures of what it’s going to present to us. I mean, looking south, first off, these properties are on a curve, okay. A year ago I could look down at traffic coming from the north and I had 120’ look, I could see oncoming traffic. This spring she built a cyclone or a stockade fence. Now I got a 45’ view. She builds these garages, I got 0.

President Charles Anderson stated, as far as looking…

John Hanik stated, I’m going to have to pull out into the street to see if a car’s coming and then it’s going to be to late and I’m afraid for my family and he’s afraid for his family, only he’s faced with traffic coming South, she builds these properties.

President Charles Anderson asked, and the surveys that she’s doing right now is to find out if she meets setbacks for these garages?

Director Weaver stated, well, I’m kind out of out of the loop on this thing. One I didn’t know that anyone was coming to the meeting to the meeting tonight. Two, I understand and I know there were permits issued for these garages, they were, we were given site plans that showed that they were meeting the setback requirements, that is true. Dave Anderson, the building inspector brought to my attention that he had received calls, he had been to the property, he agreed that he did not believe they were meeting setbacks. He has talked to the owner of the property, it is my understanding that she is in the process of having surveys done by Bob Gross…

John Hanik stated, yeah, it was done last Tuesday.


Attorney Altman stated, let her talk will ya.

Director Weaver stated, I have not seen any paperwork to justify that yes that it’s been done or no that it hasn’t been done or no that it hasn’t been done, its right, its wrong, I mean that’s where it stands.

John Hanik stated, I mean, one of my, one of my concerns is the new lot lines aren’t…


President Charles Anderson stated, you now, we can’t…

Director Weaver stated, but if I get a survey, I have to go by that survey.


Attorney Altman stated, the only thing I guess I’d say is…


Don Ward stated, you don’t have to accept the survey.

President Charles Anderson stated, you would have to get your own survey.

Don Ward stated, but you’ll have to go to court and have a court ordered survey.

John Hanik stated, I’ve I’ve I’ve got my, I had mine done by White County Surveying right across the street.


President Charles Anderson stated, okay and you got yours, if you contest that I would take that to it, you about have to go to court and let them pipe that out, that’s not something that we, I don’t control those lot lines.

John Hanik stated, I guess I’m just trying to bring that to the board’s attention because you know, if she builds these garages, somebody is going to get killed.

President Charles Anderson stated, but if they, if she meets the setbacks as far as those buildings from her survey, you would have to disprove her survey on that, because we would have to allow the building permit.

John Hanik stated, well now she’s contending that the road is on her property too.

John Powers stated, sir, may I speak for a moment?

President Charles Anderson stated, sure, go ahead and state your name.

John Powers stated, I’m John Powers, I’m the neighbor on the other side, I’ve got these pictures here from North West Shafer Drive, they show how close to the road everything is and I’ve got the site plan and the survey, there’s a survey that was on file in Area Planning’s office that numbers on the 2 things are 13’ apart. The distance from here with the setback marks and the distance from here, this paper was generated from someone in the community who knows what numbers and what things they have to put on a piece of paper in order to get a permit. She had in her possession the actual survey that would not allow her to get the permit issued to begin with and instead of using the actual legal survey that she had at her disposal she generated this paper that isn’t anywhere close to the other paper that she had.


Director Weaver stated, the survey that he has there, I believe is from a previous permit that was issued in the past and at the time, and at the time we were reviewing the new site plan I didn’t recall that there was survey before.

Vice President Dave Rosenbarger stated, it’s on hold right now until they…

Director Weaver stated, it has, yes, it is on hold. Dave Anderson is actually is been the one is been handling this and does have it on hold.

John Powers stated, if you look at it, this is, there’s only going to be about 3 feet between the edge of the garage and the road and a car is 20 feet long. You have to get half the car into the road before you can see both ways. In order for me to get out of my property I’m going to have to get my car at least that far into the road. Since these were issued, the rules and the setbacks have changed, I feel that she should have to meet the new setback requirements because these things aren’t, weren’t, weren’t true when they were put in. That’s all.


Director Weaver stated, if she meets, if she meets the setbacks at the time the permit was issued. If she brings in a survey and shows to us that she can meet the setbacks at the time the permit was issued then she can build.

John Hanik stated, but there is a survey and the other survey is from after the rule changed.

Director Weaver stated, that doesn’t matter. Her permit was issued under the old ordinance so those are the rules that apply to her. Unless that permit is completely revoked and a new permit issued.

John Hanik stated, and I, and I, and I can understand and appreciate that but I just feel if someone has a survey in their possession that the rule should apply at the time they had that survey so that if the rule changes and I go out today and I go out tomorrow and get a different survey and I come back to you and say hey well I want it, I want this rule to apply to me even though I didn’t have the survey done at that time.

President Charles Anderson asked, you want to address that Jerry?

Don Ward stated, well the survey, apparently she has hired a registered surveyor right.

John Powers stated, yeah, she’s got it right here, and it’s a year old and it’s in the office and the setbacks don’t add up.

Director Weaver stated, well there’s a new survey being done Don by Bob Gross.

Don Ward stated, okay, who did that survey?

Director Weaver stated, I don’t believe it’s signed.

John Powers stated, Milligan, Milligan signed it, she paid for it and there was stakes pounded in the ground. Now you go out to my house and it looks like a pin cushion. There’s stakes everywhere.


Don Ward stated, well, those are all temporary.

John Powers stated, no, those are set iron stakes. I got 4 to choose from.

John Hanik stated, I guess what John’s trying to say an were trying to say is she gave, to get a permit gave up false information. All were asking is if that’s what she did, they should revoke the permit to begin with because as you can see it’s not the same, she filed it under false pretenses.

Director Weaver stated, we have to give her the opportunity to prove to us that what she provided to us is correct and that’s what she’s trying to do.


Vice President Dave Rosenbarger stated, she’s trying to bring a survey to match her drawing that she filed for.

John Powers stated, right, even though she already had a survey.

Director Weaver stated, she’s trying to bring a survey that says she can meet those setbacks.

John Hanik stated, in the meantime property lines are changing though too.

Don Ward stated, and she’s hired Bob Gross.


Director Weaver stated, and that’s what I’ve been told. I have not talked to her.

Don Ward asked, is that right. She’s hired Bob Gross surveyor.

John Hanik stated, there’s been so many people out there. I know 4 different surveys that have been done.

Dennis Sterrett asked, how much difference do you have in it, in the 2 surveys. I see the house located at 40 feet off the fence or the …

John Powers stated and if you take a tape measure from the front of your house to the edge of the road the edge of the road is at about 33 feet. Not 40 or …

Dennis Sterrett stated, so the dimension is from her property line which is probably out in the middle of the road.

John Hanik stated, it’s in the far lane of traffic going the opposite way. It’s on the other side of the road in the middle of that lane.

John Powers stated, and I just want you guys to just be made aware of it and hopefully common sense will prevail.

Don Ward stated, I suppose it’s down the middle of the road for the property line.

Director Weaver stated, there’s really nothing though we can do until we get that survey that she is going to provide to us. I mean, the permit is on hold and until she provides that survey to us there’s not really anything more that we can do.

John Hanik asked, will we be given any kind of notice that if it is approved.

President Charles Anderson stated, I would just go file a complaint and that you need you want to know.

John Hanik stated, well I talked to Eric this morning and he said he would do that.

Director Weaver stated, well, building department and area plan are two different departments. You need to file a complaint in writing with the area plan department.

John Hanik asked, can we do that here?

Director Weaver statd, you do that in my office.

John Hanik stated, okay. We will see you tomorrow morning.

Dave Scott asked, Diann, if I own a lot and the road takes up 30 feet of my lot and the setback is, what is the setback for, what is that a lake property, L-1. What is the road…

Director Weaver stated, the setback goes from the road right-of-way, which ever is closer into the lot.

Vice President Dave Rosenbarger asked, oh, it does state it goes either or?

Dave Scott stated, okay, that’s what I was after.

Director Weaver stated, so regardless where her property line is, the right-of-way is on her property line, or on her property, we’re going to go from the right of way line. Does that answer your question?

President Charles Anderson stated, so where would we go from the edge of the road.

Director Weaver stated, hers would, if her property line goes to the center of the road, we’re going to go to the right-of-way.

Don Ward asked, and what’s her allowable setback there.


Director Weaver stated, well at the time that permit was issued she had to be 6’, 5’ from the overhand.


Don Ward stated, for the fence, not for the garage right.

Director Weaver stated, no, for the garage.

John Hanik stated, for the garage.


Vice President Dave Rosenbarger stated, that’s one of the things we changed wasn’t it.

Director Weaver stated, that was one of the things we changed, that’s right.

Dave Scott stated, so she could be 5’ from the eave.

Director Weaver stated, from the overhang to the right-of-way.

Vice President Dave Rosenbarger stated, in other words can’t even pull out of her garage.

Dennis Sterrett stated, no and if the right of way is the edge of pavement, 5’ …

Dave Scott stated, you’re 5’ from the edge of the pavement.

John Hanik stated, according to the guys from the highway department, he said there is no recorded right-of-way on that piece of property so she is going to build a garage 5’ off of the edge of the road according to him.

Director Weaver stated, well the survey should show us the right-of-way also, if there is or is not right-of-way on that property.

John Hanik stated, oh, they’ve got stakes out in the middle of the road, little decals and everything.

Dennis Sterrett stated, I seen in the pictures they had some in the grass too.

John Powers stated, that’s a 20’ setback. The one that you, the one that’s in the grass, that’s a 20’ occupation setback mark right there.

Dave Scott asked, so Jerry, if her garage is going to be 5’ off the edge of that road, do we have any recourse to stop something like that even though…

Gerald Cartmell stated, safety.

Director Weaver stated, it met setback requirements at the time the permit was issued.

Don Ward stated, the only thing that can be done is go back in the commissioner’s records and see if there’s a record of what the width of that right-of-way is. That’s a whale of a job and it may not be recorded, it may not be in the Commissioners records.


Dave Scott stated, well that just doesn’t make good sense to let somebody build on a county, 5’ off a county road like that. I mean, that doesn’t make any sense.

Director Weaver stated, that’s how our ordinance was established.


Gerald Cartmell stated, when they were backing the horses out then.

John Powers stated, I fully agree with you Mr. Scott and that doesn’t make any sense and their should be a paragraph at the bottom of the page that says if something doesn’t make any sense we should be able to..

Dave Scott stated, well that’s why I was asking our attorney if there was any out, if we had an out.

John Powers asked, and who’s responsible then when she pulls out of traffic with this 5 foot thing and gets, and the people come running into my front room.


Director Weaver stated, we understand your concern, that’s why it’s different in the current, in the new ordinance.

John Powers stated, and I appreciate it being changed, but I can’t appreciate how you can have a survey and what she wants to do doesn’t meet the survey that you have and so if your basically telling her go ahead, we’ll give you a couple more weeks or a couple more days or a couple more hours or whatever, however long it takes you to prove your point.

Director Weaver stated, but she can’t build until that paperwork’s in.

John Hanik stated, I simply feel that it should be revoked because it doesn’t match the survey, the legal survey that she had in file with your office. It doesn’t …


Attorney Altman stated, the only thing I can tell you is, you need to go thru the channels like Doc said and like Diann said and file your request thru Diann and thru Dave Anderson and then if it comes forward to this body here, BZA then they can take so action rather than just sit here and I hate to say it but were just kind of talking tonight. But we’re glad to give you these suggestions and we’re glad to listen to but there’s not much we can do except for suggest you get a hold of Diann and Dave Anderson and take your objections up that way please.

John Powers stated, and that’s why, that’s the reason I came here, so you guys can point me in the right direction to take the necessary precautions to ensure the safety like this and I appreciate that.

John Hanik stated, we thank you for your time and I’ll see you at 9 o’clock tomorrow.

Director Weaver sated, okay.

Don Ward stated, about 2 years ago a judge in Southern Indiana ruled that if you can not prove where the right-of-way is on the road, the edge of pavement becomes the right-of-way on both sides. So if there is no way to prove it thru the Commissioners records that the road has say a 40’ right-of-way you’re stuck with the pavement being the actual right-of-way. We measure back 5, 6, 5 or 6’, it’s terrible, I admit it, it should be, I wouldn’t want my garage out there. Somebody could clip it good.

Gerald Cartmell asked, are there utility poles?

John Powers stated, yes.

Gerald Cartmell asked, on your side or the other side.

John Powers stated, on his side, and they’re they’re back, they’re back quite a bit into the property. They’re about 12’ off of the pavement.

John Hanik stated, well theirs one smack dab between the 2 houses there.

Gerald Cartmell stated, that might be possibly it might be the right-of-way.

Don Ward stated, yeah, I don’t doubt that the right-of-way is a lot wider than the pavement. It’s proving it.


Gerald Cartmell stated, right there’s a pretty good sign.

Dennis Sterrett stated, its use, its how it’s used. If the peoples only driving down the pavement, then that’s the use, then that’s the right-of-way. It’s not…

John Powers stated, what about the gravel they bring, that they put along side of it. That would be use.

Dennis Sterrett asked, how about the side ditch?

Attorney Altman stated, who.

Dennis Sterrett stated, there was a side ditch, but it’s proven that the side ditch isn’t the…

John Powers stated, that’s why you guys are on the board and I’m simply the neighbor. I appreciate you guys taking the time to listen to me.

President Charles Anderson asked, do we got any other old business?


Don Ward stated, well, wish we could help you but..

Director Weaver stated, no, I haven’t….

John Powers stated, it sounds like you can.

Don Ward stated, can’t do it directly.

John Hanik stated, we’ll take the next step.

President Charles Anderson asked, anybody else have any other business they want to talk about.


Don Ward stated, what.

President Charles Anderson asked, you have any other business?

Don Ward stated, I don’t.

President Charles Anderson stated, old or new or…

Don Ward stated, any monkey business?


President Charles Anderson stated, monkey business.

****

Don Ward made a motion to adjourn.

Mike Smolek seconded the motion.

The meeting adjourned.

Respectfully submitted,

Donald W. Ward, Secretary

White County Area Plan Commission

Diann Weaver, Director

White County Area Plan Commission

 

 

 

 

Document Prepared By: __White County Area Plan, _______________________________________________

 

 

“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.”

 

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