October 24, 2011

 

 

 

 

The Ellettsville, Indiana, Town Council met for a Regular Meeting on Monday, October 24, 2011, at the Fire Department Training and Conference Room.  David Drake called the meeting to order at 7:00 p.m.  Dianna Bastin led the Pledge of Allegiance followed by a prayer led by Phillip Smith. 

 

Roll Call:  Members present were David Drake, President; Dianna Bastin; Phillip Smith and Dan Swafford.  Scott Oldham was absent.  Sandra Hash, Clerk-Treasurer; Darla Brown, Town Attorney, and Rick Coppock, Bynum Fanyo, Town Engineer, were also present.   

 

Supervisors Present were:  Bill Headley, Tony Bowlen, Connie Griffin and Mike Farmer.

 

Approval of Minutes

 

David Drake entertained a motion for the approval of the minutes for the Regular Meeting on October 10, 2011.  Dianna Bastin so moved.  Phillip Smith seconded.  Motion carried.

 

Accounts Payable Vouchers

 

David Drake entertained a motion for action to pay Accounts Payable Vouchers.  Dianna Bastin so moved.   Dan Swafford seconded.  Motion carried.

 

Old Business

 

Autumn Ridge Sidewalks

 

Darla Brown, Town Attorney – Utilities finished the grading and the seeding work.  Michael Farmer has given her an invoice for Utilities’ labor, equipment and parts.  The invoices total $4,348.84.  Dan Swafford commented the work looks very nice.  Mr. Swafford asked if the Town gets reimbursed from the letter of credit.  Ms. Brown replied she will deduct the $4,348.84 from the letter of credit and return the letter of credit to the bank.  Mr. Swafford stated before she returns the letter of credit to the bank he would like to make sure from Rick Coppock that everything is 100% complete.  Mr. Swafford requested Ms. Brown contact Mr. Coppock to make sure everything has been completed before she returns the letter of credit.  Ms. Brown responded she would do so. 

 

Sandra Hash – There was a vendor who came to Town Hall and presented some bills for the actual concrete work.  Rick Coppock had sent an email to her stating the work was done and the invoice could be paid.  If 100% of the bond is returned, where does that leave the person who poured the sidewalks?  Mr. Swafford stated the Town did not hire that person, and nor should it pay them.  For any kind of warranty the Town should not get involved.  Ms. Brown stated the attorney for Autumn Ridge has requested that the money be returned to the bank.  She would like to do this and let Autumn Ridge pay the individuals who poured the sidewalks.  Ms. Hash asked if she should return the invoices and tell them to bill Autumn Ridge.  Ms. Brown replied to go ahead and do what she had suggested.  Ms. Brown requested a copy of the invoices. 

 

Dan Swafford – Asked Rick Coppock if all of the improvements on Autumn Ridge had been completed of if there is anything outstanding.  Mr. Coppock replied he doesn’t know of anything else outstanding.  The street trees have been put in.  He understands there are more street trees they have paid that have not been put in yet, which is under the control of the homeowners association.  The sidewalk and the other public improvements which are the sewer and water lines are in.  The surface coat has been put on.  Outside of those things, he knows of nothing else.  Dan Swafford asked Mike Farmer if the rubbish on the corner lot had been cleaned up.  Mr. Farmer replied they cleaned it up and left only the building blocks that could be used for future construction activity.  They removed the spoiled dirt and concrete construction debris.  There were 10 to 11 tri-axle loads removed.  Mr. Swafford asked Mr. Coppock if the Town has concluded its responsibility.  Mr. Coppock stated he would say that’s correct. The person who poured the concrete for the sidewalk had talked to him about being paid for the work.  He told her to contact Sandra Hash.  Mr. Swafford said this was discussed prior to his arrival and they are going to return the money to the bank that is leftover after payment to Utilities and let them take care of the contractors.  Mr. Swafford asked if there is any money that should be kept back for a warranty.  Mr. Coppock replied the surface course has been on for awhile.  If the sidewalks break up or something like that it would be the Town’s responsibility to fix them.  This is common with any subdivision project.  Mr. Swafford commented the payment will be made to the Utilities and the balance will be returned to the bank.  He reiterated it looked nice when he looked at it a week ago.  Dianna Bastin asked Mike Farmer to thank the guys who worked on it.  They did a good job.

 

New Business

 

Eastern Richland Sewer Corporation Update – Larry Barker

 

Larry Barker, President of Eastern Richland Sewer Corporation (“ERSC”) – As part of the agreement they are to keep the Town apprised of upcoming events and repair work.  A week prior, they signed a contract with Miller Pipe for a little under $750,000 to line over 6 ˝ miles of petrified clay pipe.  They will start immobilizing on October 26, 2011 and they have up to 180 days to complete the process.  ERSC will keep the Town apprised of events as they continue.

 

David Drake – Asked what the percentage of work is compared to the total amount of pipe that may need to be fixed.  Mr. Barker responded this is a continuous process with their infrastructure.  This is why they have proceeded with buying a Vactor truck and their own camera truck to maintain their 40 miles of sewer.  This will line at least 35% to 40% of the petrified clay.  Mr. Drake asked if this process could be done during the winter.  Mr. Barker responded they can do the work to 25° and then they will have to stop.  When they bring the heated material outside the truck and then down into the manhole the temperature radiant cools too fast and it won’t fit through the manhole into the lines.  They will start work on the northern section which is next to west Maple Grove. 

 

Dan Swafford – Asked if the repair work will inconvenience customers.  Mr. Barker replied there will be a few above ground spot repairs but 90% of the work will be done underground.  They will notify customers in advance of the repairs. 

 

Planned Unit Development Petition No. 9122012-2-Pipjay Properties, LLC/Burch Enterprises, Inc., Chad Stephens and Roger New:  Petitioner’s Proposal for a Rezone Ordinance Rezoning His Property from C3 to PUD/Proposed Ordinance 2011-10.

 

Connie Griffin, Director of Planning – The Planning Department was first contacted about the Petitioner, Chad Stephens, adding fill next to Jack Defeat’s Creek in October 2009 and May 2010.  Additional complaints include a potential land use violation which is the operation of a salvage facility in July 2010.  Cars were observed stacked on top of one another and loud sounds could be heard as observed from McNeely and Matthews.  The Department of Natural Resources (“DNR”) and the Indiana Department of Environmental Management (“IDEM”) were contacted in approximately May through December 2010 as well as the Secretary of State’s office.  The Planning Department requested a right of entry to conduct an inspection at the business on September 13, 2010.  During the inspection, piles of mixed metals and the following items were observed: vehicles stacked on top of one another, dismantled engine parts, fluid extraction, recent grading and the placement of a detention pond.   An additional inspection was conducted on August 3, 2011.  This inspection revealed grading, fluid stains on the gravel and salvaging operations with stacked vehicles.  One roll off dumpster had oil and fluid sludge at the base of the dumpster.  There was a crack where the door shuts on the dumpster.  During a rain event those fluids could be washed onto the ground.  The adjacent land uses were reviewed.  On September 13, 2010, a code violation was issued based on the inspection findings.  In October 2010, the Ellettsville Plan Commission requested Mr. Stephens to appear before the commissioners to discuss the land use violation letter and to better understand how the property is currently being used.  A valid Indiana salvage license was not on file in October 2010.  The Plan Commissioners met again in January 2011 to notify Mr. Stephens of his options which were to petition for a PUD, cease and desist and to contact the DNR for an after the fact permit for adding fill  in the floodway.  In April 2011, the Secretary of State’s office issued a cease and desist order and the DNR stated no additional fill can be added in the floodway.  Mr. Stephens was in contact with the DNR on or near May 23, 2011.  The Petitioner has been before the Plan Commission and received a 6 to 1 unfavorable recommendation.  The next step was to go before the Town Council.  However, the application was revised by removing one of the parcels prior to the Town Council meeting.  The Town Council believed that since it had been substantially revised by removing one of the parcels the application was sent back to the Plan Commission on October 6, 2011.  On October 6, 2011, the Plan Commission voted again with a 6 to 1 unfavorable recommendation.  The current listing of code violations discussed and read at the Plan Commission and the findings of fact are as follows:

 

·        Prohibited land use in a C-3 zoning classification per Ellettsville Town Code 1966 through current Town zoning.  The code requires Industrial 2 with a Board of Zoning Appeals special exception approval by §152.085. 

·        In 2010 new businesses were added:  salvage business and recycle yard. 

·        They filled in the floodplain with no grading permit issued by the Town of Ellettsville or the DNR.  No site improvements permit. §152.104(b)(1) or DNR permit construction in a floodway under I.C. 14-28-1.  The Flood Control Act requires any person proposing to construct a structure, place fill or excavate material within the floodway of any state waterway to obtain the written approval of the DNR prior to the beginning of the project.  The regulation’s fundamental premises are as follows:

 

1.      Whether or not the project will adversely affect the efficiency of or unduly restrict the capacity of the floodway.

2.      Whether or not the project will constitute an unreasonable hazard to the safety of life and property.

3.      Whether or not the project will result in unreasonable detrimental effects upon fish, wildlife or botanical resources. 

 

·        Performance standards differ in the Act than the Town Code.  The Town Code is more restrictive.  Code 152.105(b) states “the total cumulative effect of the proposed development when combined with all other existing anticipated development shall not increase the regulatory flood elevation more than 1/10th or 1.2 feet and shall not increase flood damages or potential flood damages.”  Performance standards in I.C. 14-28-1 allows for 1.8 feet.

·        The State of Indiana License Required for Operation of a Salvage Yard, I.C. 9-22-4 and §152.084, all permits required by law must be secured.

·        Ellettsville Town Code-Draining site plan:  §152.145, Code stipulations under §152.296(i)(j).

 

Findings of Fact:  According to I.C. 36-7-4-603, the following criteria are addressed as part of rezone protocol:

 

·         Criteria 1: The Comprehensive Plan.

·         Criteria 2:  Current conditions and the character of the current structures and uses in each district.

·         Criteria 3: The most desirable use for which the land in each district is adapted.

·         Criteria 4: The conservation of property values throughout the jurisdiction.

·         Criteria 5: Responsible development and growth.

 

1.   The Director of Planning’s Findings of Fact - it is not consistent with the land use policies contained in the Comprehensive Plan.

 

·         Industrial areas are to be located west of Ellettsville for light industry.  (Page 22-   Industry)

·         Town Code shall prohibit heavy industries that would likely create a known health or explosive hazard for nearby residents.  (Page 22-Industry)

·         Encourage pedestrian style commercial development along and between the one-way pair of S.R. 46 with special attention to Sale and Vine Streets (proximity to this commercial area is 700 to 1,000 feet.  (Page 22 –  Commercial)

·         Support the Heritage Trail using old rail beds as a linear pedestrian pathway.  Salvage yards are not a good adjacent land use for a trail.  (Page 23 – Transportation and Traffic Plan)

·         Redevelopment on Sale and Vine Streets as well as nearby street fronts to attract shopping.  (Page 23 – Tourism)

·         Improve the environmental quality of Jack’s Defeat Creek.  One reason why code prohibits salvage yards next to floodways.  (Page 24 – Environmental Issues and Trees)

·         Seek guidance from similar communities concerning codes.  (Page  31 – first paragraph)      Different communities prohibit salvage yards in commercial areas.  They all want those five acres in size and 1,000 feet from residential.  In the City of Bloomington the proposed use must be consistent with growth plans and will not create a nuisance by reason of noise, smoke, odors or vibrations.  Will not have an undue adverse impact upon adjacent property, the character of the area, or the public health, safety and general welfare.  The proposed use will not result in the excessive destruction, loss or damage of any natural,         scenic or historic feature of significant importance.  The proposed use and development    complies with any additional standards imposed upon the particular use of the chapter.                  South Bend also has a very similar town code and they also require five acres.

 

2.   The Director of Planning Findings of Fact - the Conditions have changed in the area since the original zoning was established:

 

·        Conditions have changed in the area because there are additional uses that have been added to the PUD application area which has strayed away from the original intent of the code.  More residential development has transpired on McNeely (Stoneview Condos-PUD R-3, as well as additional subdivisions east of the site which is more residential land uses).

 

3.   The Director of Planning Findings of Fact - the Community facilities are available.  The area is serviced with Town water and wastewater treatment services and McNeely is a Monroe County Road. 

 

4.   The Director of Planning Findings of Fact - The proposed rezoning will not establish a desirable precedent in the area because the Comprehensive Plan states           light industry zoning should be developed west of Ellettsville (pages 22, 31 and 36).  Zoning shall prohibit heavy industries that would likely create a known health or explosive hazard (page 31).  Restrict areas within the 100 year floodplain hazard     area to park land use (page 31).  It will be mandatory to control pollution from entering streams by stopping unclean discharges of stormwater at or near their source (page 32).  Soil erosion control measures should be carefully planned, implemented and monitored (page 32).

 

5.   The Director of Planning Findings of Fact -The proposed rezoning is not            compatible with surrounding land uses.  The Comprehensive Plan states Land             Use Recommendations for Ellettsville.  Three conditions for Good Land Use   should be considered (page 26).  Ellettsville should        measure each and every one of             the land use recommendations on the basis of these considerations.

 

·         Does each and every lot in Town or parcel of land near Town have utilization compatible   with its neighbor?

·         Is each land use the highest and best land use possible given the present market economies?

·         In what way can Ellettsville land parcels attract additional investment?

·         What needs to be done to upgrade the value of surrounding property?

·         What kind of image does the visual scene portray?  Does the built environment give a good first impression?

 

The thoroughfare plan as within the Comprehensive Plan states that Matthews and McNeely are both classified as minor collectors where it discusses using major collectors for such use.  The PUD application area will be presented from the hydrology study.  Rick Coppock will be discussing the hydrology study as well.  The Town is required to enforce the Floodplain Ordinance.  The Town has a national flood insurance program and if the Town does not withhold the floodplain ordinance then it can jeopardize the program.  It is in the professional opinion of the Town Planner that this is not an approved use for this location.  Salvaging is a good use and is a good environmental friendly use but it does need to be located in the appropriate place and the findings state that it is not.

 

Rick Coppock, Bynum Fanyo, Town Engineer -  The report for the flood study was performed by MS Consulting and has been submitted to the DNR for their review.  He looked at the report and since DNR has the final jurisdiction they look at the methodology and the findings of the report.  What the report looks at is what fill has been presently placed on the site.  It indicates they will have a .02 increase in the base flood elevation.  What this means is that it is within the Town Code according to the report.  Even with the fill that is there now, at the center of the site would still be subject to flooding at 4.75 feet and this is based on the hydrology report turned into the DNR.  This is something the Town needs to consider.  This is not taking the site out of the floodplain it is merely acknowledging what is there.  They’re having it reviewed by the DNR so they do not have to remove what’s been placed in the floodplain to date.  DNR reviews take quite a bit of time.  They’re certain MS Consulting is working with the DNR to get their report finalized and reviewed. 

 

Dan Swafford – Asked how much it would flood in the center.  Mr. Coppock replied the amount of flood waters would be 4.75 feet that’s calculated for the center of their site.  The site comes up from McNeely Street and the calculated elevation would be 7.60 feet of depth of water for the 100 year floodplain elevation.  At the very south end it was 5.85 feet.  All of this is subject to DNR approval.  It’s a lengthy process for the DNR to make adjustments to the existing model.  Then adjustments are made to that model to bring it up to current conditions and then they add what the site is proposing or has done.  All of these are compared to each other to get the final result of the increase.  Mr. Swafford asked what it means if the report states what the number is over.  Does it mean over the entire length of the creek?  Mr. Coppock answered it is looking at the base flood elevation, what the water level is currently calculated at and what the property owner does to their site.  If it increases, it’s how much the level goes up.  It is protecting the surrounding properties.  Someone can’t fill their site and raise it a foot on everyone’s surrounding properties.  The DNR rule is that it can’t be increased by .14 feet.  The Town Code is .10 feet.  They’re really looking at the surface of the water during the flood event.  Mr. Swafford asked even if the fill had not been added, do they know what it would have been prior to that.  Would it have been several feet under water?  Mr. Coppock replied that is correct.  It would have been the base flood elevation before the fill was added.

 

David Drake – There are several different operations going on at the site.  There is a towing company and vehicle repair company.  He asked if they’re dealing with just the salvage operation and are there any additional things beyond that.  Connie Griffin replied that is correct.  The Commercial 3 uses are approved uses at that location.  Salvaging requires it to be an Industrial 2 classification with border zoning special exception.  Mr. Drake stated the Town isn’t telling them that they cannot operate their business; what is being decided at this meeting is whether they can expand and continue the salvage operation only.  Ms. Griffin confirmed that is correct.  They can still continue the trucking industry but the salvage and recycling operation would have to cease and desist.  Mr. Drake explained the procedure for the petitioner to present his petition.

 

Mike Carmin, Attorney for Petitioner – Present with him at the meeting is Chad Stephens, Petitioner, and Bernie Guerrettaz and Brad Myrick of Bledsoe and Guerrettaz.  What is being decided is not a question of expansion of a business.  What is being decided is whether or not a recycling and salvage operation can continue.  Without rezoning it cannot continue as far as the Town Council is concerned.  He presented a photograph from 1988 when Roger New started the operation.  The photograph shows the vehicles he was salvaging in 1988.  For 25 years this has been the site of a recycling and salvage operation.  This isn’t something Chad Stephens started a couple of years ago.  What Chad Stephens did do several years ago was to clean up the site.  A Google 2011 photo update was presented.  This is what got his attention brought to everyone as well as the fill activity.  They are not at the meeting to prove 25 years of use.  That’s a battle for another day and depending on what happens at this meeting it may have to be litigated.  There is an issue of whether or not the Town can stop an activity that 25 years ago was allowed to happen and continue.  They’re at this meeting for the PUD petition.  They’re talking about livelihoods.  It’s not a Monopoly board; it is people’s lives and the livelihood of 14 employees.  It is projected that Chad’s Recycling and Refuse (“Chad’s”) will have spent $5,000,000 in buying back metals, primarily, and recycled stuff.  This is taking some man’s junk and keeping it out of the creek and out of the ravine behind somebody’s neighborhood.  It’s putting money in somebody’s pocket.  It’s not $5,000,000 in profit.  It’s what he pays out in materials.  There is three times the return on every dollar brought into the community.  Roughly there is a $15,000,000 impact.  They’re asking the Town Council to consider what they’re hearing.  No one close has a zoning ordinance that deals with this PUD.  The Commitment for the Use and Development of Real Estate (“Commitment”) is a concept permitted by law.  They’re enforced just like a covenant on a subdivision plat but this is specific to zoning.  There have been two occasions to have a pre-petition meeting and they’re nothing more than a filing meeting.  There has been no discussion.  The first feedback received came from Ron Wayt at the first Plan Commission meeting.  He raised significant environmental questions.  The PUD was revised because of a fundamental different change in the operations.  In review of the minutes from the October 7, 2010 meeting, after a lot of discussion about Chad’s and it’s use, “Mr. Swafford commented it appears Mr. Stephens’ biggest obstacle is obviously the salvage permit.”  At the same meeting, Sandra Hash stated “Believes Mr. Stephens is trying really hard and you really can’t see it from the road when you drive by.”  You can’t see it from the road except directly in front of McNeely Street and a little from the bridge because it’s 75% incased in mature trees.  Part of the Commitment is to further construct a fence around the entire property to further isolate and buffer it.  It’s been suggested, indirectly, that approving the petition is going to put the flood insurance program at risk.  An email states the Town isn’t at risk and needs to follow its rules and do its enforcement, if necessary.  It discusses the DNR permit process.  The Comprehensive Plan states this can’t be done.  It is true the Comprehensive Plan calls for a salvage yard business to be conducted in an I-2 zone which the Town doesn’t have.  The Comprehensive Plan calls for industrial zoning to be west of Ellettsville.  In other words go to Monroe County and have them rezone it because it won’t be done within the Town.  The Comprehensive Plan is only that.  The courts have addressed this before.  What is the importance of the Comprehensive Plan.  It is an important document.  In an enforcement case there happened to be a man who thought that the Comprehensive Plan for the community would mandate they would rezone as he wanted.  The man challenged the Comprehensive Plan when they refused to do so.  The Court of Appeals said they don’t have to rezone it even though the Comprehensive Plan calls for it.  A few comments from the Court of Appeals regarding the Comprehensive Plan state it is a general long term blueprint used as a guiding and predictive force in the physical development of a community.  The Indiana Code requires the plan commission, the legislative body, pay reasonable regard to the comprehensive plan in preparing and considering proposals to adopt additional and initial zoning ordinances and amendments.  These bodies must also consider current structures and uses in each district, the most desirable use of the land, property values and responsible growth and development.  The comprehensive plan is the community’s long range vision for physical development but implementing the plan with regards to a given piece of real estate may not be the best course of action for the community on a given day.  The comprehensive plan is a guide to community development rather than an instrument of land use control.  It’s being presented as an instrument of land use control.  Indiana Code (section not cited) states “The Plan Commission or legislative body shall pay reasonable regard to a number of enumerated factors” which have already been read.  They’re asking that the Council give due regard to the Comprehensive Plan which is one of several things they are to consider.  The use and preservation and property values are something that’s not new.  This has been in place for 25 years.  To the extent of the things that have developed around it from the Cook Plant to other development it has happened around it.  The Petition goes into some length about the discussion of permitted uses.  To answer Mr. Drake’s question earlier the auto and truck service portion of the business is a permitted use in a C-3 zone.  It’s the recycling and salvage operation that’s the issue on the PUD which has been ongoing for 25 years.  Under Section 3 of the Commitment, the environmental protective measures that are to be implemented from sealed containers to work being done on a concrete pad, work being done only under roof and from storage above base flood elevation that’s the 4.87 feet issue which Mr. Coppock mentioned earlier.  This is why it calls for storage 5 feet above the grade level.  Sealed containers and the work inside of concrete vaults are a secondary containment source in the event of any spillage.  It calls for water quality testing as an ongoing measure.  The pond is now at IDEM standards.  The water in the pond is better than the water that runs off of the parking lot.  Every vehicle that comes on to the parking lot that drips oil or any fluid is running off into the soil and eventually down to the creek.  It is not true of this site.  It goes into the pond and the water is being tested and monitored on a regular basis.  There are questions and concerns about the incompatibility of this being adjacent to the trail.  It is not adjacent to the trail.  Between the recycling and salvage operation is the parcel owned by Pip Jay Properties which is already in the PUD plan.  It designates that it would not be used in any respect even for temporary storage of any container.  There would be no use of Pip Jay Properties for the recycling and salvage operation.  It is all conducted on the Birch Enterprise property.  There is a buffer between that and the trail.  There is late breaking news.  Paragraph 3 goes into great detail about the environment protective measures to ensure that this operation will be conducted in a safe manner with certainly no more risk than in any other development.  None of the measures are in place for the Monroe County Solid Waste District, the Fire Station and Town Hall parking lot.  The water that leaves the site will be better than any water that comes off of any public property that presently exists.  In the Commitment, there is a statement that if Chad’s can find a site outside of Ellettsville to conduct some of the operations, this would become a feeder yard.  Under Section 3 of the Commitment, it states, “If owner acquires a recycling and salvage site outside of the Town of Ellettsville, the following additional commitments will apply to the development of real estate:

 

·        Absolutely no automobile processing will occur.  When a vehicle is purchased it will be removed within 48 hours to a main yard outside of Ellettsville for processing.

·        Absolutely no automobile fluids will be stored in the recycle yard.

·        Absolutely no torching down of heavy equipment or equipment containing fluids.  All of this equipment will be hauled off-site within 48 hours.

·        Motor blocks, iron and aluminum, will remain in sealed containers under roof as previously committed. 

·        The development plant will be a feeder yard for a facility located outside of Ellettsville.”

 

This will move some jobs outside of Ellettsville corporate limits but it will leave this yard as a feeder yard with a greatly reduced scope of operations.  Even with the commitment on the operations, if it were to remain as the main yard, it addresses every environmental concern that anybody has broached.  The feeder yard which now looks to be a reality is a greatly reduced operation that allows the purchase and collection of materials which is processed and moved off-site.  This removes a little bit of economic impact from the community.  It also removes from the site those items people have expressed some concern in the form of spillage, runoff and floodplain issues.  The DNR after the fact permit is still being processed and it is a slow process.  A question was asked what all of that means.  An after the fact permit says is “you’ve already done it, you didn’t have the permit you should have had to do it, we look at what you did and we evaluate and had you come to us before you did that we would have approved it.”  This is all that’s going on and they’re waiting for the final answer.  All indications are it meets the criteria of the DNR for that permit and it will be issued.  It’s just a matter of time.  In summary, the council has been given several things to consider when doing the rezoning:

 

·        Comprehensive Plan.  There is a whole lot of things in the Comprehensive Plan that this petition clearly meets.  There are a couple of things that it does not clearly meet. One of which is the concept of industrial zoning being west of Town based outside of Ellettsville.  He thinks the I-1 zone north of this site was an issue and has never been challenged.  The C-3 zoning went in there a long time ago.  The first Comprehensive Plan in 1963 addressed that point.  The Comprehensive Plan is a guide.  Give it reasonable regard and they can still find it can be done.

·        The character of the current uses:  This has been there for 25 years.  No new structures are proposed.  There will be a concrete pad with a cover over it to do the processing but not a new closed structure that would require a permit. 

·        Desirable use:  They are continuing a use that is there already.  The towing and truck service continues as a C-3 zoning and they’re adding a couple of uses for

·        The recycle and salvage.  The problem he has every time he uses the word “salvage” is that he hates using it because he knows what happens.  In their minds they conjure up what he calls the Bloomington Auto Parts yard on north 37.  You can’t drive by there without seeing acres and acres of stacked rusted hulks.  There is no storage of vehicles at this site.  There hasn’t been and there will not be and there is a commitment for that. 

·        Conservation of property values:  Property values have already been set for what is already there.

·        Responsible development:  There are environmental protections in the plan that are not being met by any other petition ever seen in the community.  There are promises and safeguards in the form of the Commitment which becomes an enforceable contract.  It is enforceable by the Town and interested parties. 

 

Bernie Guerrettaz, Bledsoe and Guerrettaz – They are the land surveyors and engineers that did the site work.  They prepared the mapping for the outline plan.  They have been coordinating with Sean Arden of MS Consultants who did the floodplain study.  They are asking for an outline plan approval.  This is the second step of a four step process.  Every single step the Town Council has control over.  The review has been done by the staff and Town Engineer who has read the report and has tried to understand what the modeling says and he has done that.  He spoke with the Town Engineer and he thinks they’re on the same page which is what the report states.  The report developed by Mr. Arden says with the after the fact fill the increase in the flood elevation amounts to 0.02 feet.  This is the depth on the floodplain change after the fill was placed on site holding a small stack of business cards as a demonstration of .02 feet.  This is how the 100 year floodplain changed.  Once that gets the approval it goes through the construction process.  They will file for the construction permit for the floodway.  Right now they’re looking at not increasing that flood elevation by .04 of a foot.  As far as any buildings on the site, the building they show on the site will have elevated sides at least 4.75 feet that is where the 100 year flood comes up on the property.  What will happen is the water can go through the areas and the water will go underneath the covered tubs.  They won’t be submerged under that water level.  Before the fill was put in place the area would have been 10 feet under water.  Now they’re already 4.97 feet.  All of that activity over the years past would have been 9 to 10 feet under water.  What Chad Stephens has done, without condoning the after the fact process but it is a legal process, has brought the fill up so the likelihood of any of that work being out of Jack’s Defeat Creek has actually come in to play.  A lot of work done in that area is not in the floodway any more.  They are downstream of the entire Town of Ellettsville so most of the stuff that comes down stream they’re a head of it.  Once that 1% frequency flood comes in Ellettsville is going to be massively under water anyway and everything including parking lots, gas stations and the old fire station will be washed out and will be passing right by Chad’s.  At that point, all of the material that Chad’s is working on is going to be elevated by the 100 year flood elevation by at least one or two feet.  It is out of the floodway and will be protected by the rain water.  The concrete pad will take it into stormwater quality basin as illustrated on their drawings.  All of the stormwater will head down to the south end of that basin and will go through the grease, oil and water separator.  It will be maintained, pumped and cleaned out as needed whenever it fills up.  Connie Griffin had a question as to whether or not there is a .37 feet increase on the base flood and there is not.  The model that Mr. Arden developed is .02 feet increase due to the fill.  This is a legal process he’s going through with very reputable professionals.  The .37 feet increase is a valid question but it is not being increased by that much. 

 

Dan Swafford – Asked Mike Carmin if the water testing has been done and is continuously being done.  Mr. Carmin replied it has been done.  IDEM rules require periodic testing under Rule 6 because it is industrial use and they require it to be done annually.  Field’s Environmental has already done the testing on the pond.  Mr. Swafford asked if that was the only area that was tested.  Mr. Carmin responded yes.  Mr. Swafford asked if he had copies of all the testing reports.  Mr. Carmin replied he didn’t have copies of the reports with him.  Mr. Swafford requested copies of the reports.  Mr. Carmin stated Mr. Swafford would have to have someone who could interpret the reports for him because they’re all numbers.    Mr. Swafford asked if the creek has had any testing done.  Mr. Carmin answered no. 

 

Phillip Smith – Confirmed Mr. Carmin’s statement that there’s a pretty good chance the after the fact permit was going to be approved.  Mr. Carmin advised they fully expect it to get approved because it meets all of the criteria.  Mr. Smith stated on the same fact, the Council does not know this.  Mr. Carmin stated if it doesn’t get approved then he will be required to remove fill and it doesn’t affect the zoning.  Mr. Smith commented Mr. Carmin also stated the dismantling of vehicles has been going on since 1988.  It appears since 1988 it has been done illegally.  Mr. Carmin stated it depends on how you look at it.  They all have the same problem in proving it.  Roger New told him in 1983 he was assured by the Town he could do that at that location and been doing it continually since then.  He understands the minutes do not reflect this.  Mr. Smith stated he has to go by the minutes.  Mr. Carmin stated this issue will not get resolved at this meeting.  It may be a different battle they’ll end up fighting some day.  It can’t be disputed it has been occurring.  Whether or not it was occurring illegally can certainly be a question.  The fact that it was occurring for 25 years and no one said anything.  No one came along to shut it down or tell him to stop.  Chad Stephens buys the property and take over an ongoing operation the whole Town knows is there.  He knew it was ongoing and no one told him no and that he couldn’t do it.  He asked Mr. Smith what he would think.  Mr. Smith responded he would check to see if it could be done.  Mr. Drake commented he would probably check before he started filling in areas around the floodplain.  Mr. Carmin commented the fill is a different issue and the floodplain has nothing to do with the use.  Mr. Swafford asked Mr. Carmin how long it will take to get the impact or environmental study.  Mr. Carmin responded the process is slow.  Sean Arden of MS Consultants has advised everything has been submitted and they’re waiting on the DNR.  Mr. Swafford asked what the DNR report is to say.  Mr. Carmin replied it will say whether or not they will approve the after the fact permit.  If it is approved, there are no requirements for removing the fill that is there now.  If the DNR denies the after the fact permit, he will basically end up with an order to remove the fill.  Mr. Swafford asked if that is all the study is going to say.  Mr. Carmin answered the DNR deals with the activity in the floodplain and IDEM deals with water quality.  IDEM monitors through Rule 13, water quality coming off of any commercial industrial site.  Mr. Swafford stated he has been on site several times and has seen the pond and has noticed there is no drainage of any kind.  It’s just a hole and the water sets there.  Mr. Swafford asked Mr. Carmin if there are plans to modify the pond.  Mr. Carmin replied it is a holding pond and not a detention pond where it releases out into the creek.  It is intended to retain the water.  Mr. Swafford asked if it would ever present any kind of leeching and if there’s been a study of how it would be absorbed into the land.  Mr. Carmin replied his understanding is they’re primarily evaporation and not absorption.  It has a clay liner, not a synthetic liner.  Dianna Bastin asked where the pond is located.  Mr. Carmin showed where the pond is located on a photograph. 

 

Dan Swafford – Asked Bernie Guerrettaz if he had the dimensions of the pond and how it was installed.  Mr. Guerrettaz showed a map of the pond and the direction of the flow.  It currently stores 66 thousand gallons of water.  It is 8,800 cubic feet.  He showed the location of the proposed building on the map.  In a 100 year flood, the water will pass through at 4.97 feet as predicted.  Sandra Hash asked what the elevation of the pond area is in reference to the 100 year flood.  Mr. Guerrettaz answered the pond is lower than the rest of the site so the pond is below that elevation.  Ms. Hash asked if there was a 100 year flood would the pond area be co-mingled with the rest of the area.  Mr. Guerrettaz replied in that 1% frequency event if the maintenance wasn’t done on a two acre site, that’s very close to the location of the operation, then the water could go, yes.  Remember in that 1% frequency storm event everything in Ellettsville is 10 feet under water.  Mr. Swafford commented it seems to him maybe the water should be tested upstream and then test it below stream for a base level before this continues.  Mr. Swafford asked Rick Coppock his thoughts on the testing.  Mr. Coppock replied they have water quality information upstream and downstream of that site for the stormwater quality program for the previous four or five years.  Mr. Swafford asked if there was any noticeable difference between upstream and downstream.  Mr. Coppock responded he would have to look at the reports.  Mr. Swafford asked who has all of the information.  Mr. Coppock answered he has the information.  Mr. Swafford stated he would very interested in seeing the reports.  Mr. Coppock stated he would provide the reports if they aren’t on the website.  There was a lot of testing done at the sewage treatment plant as part of a different program.  In subsequent years they have done testing whenever there’s a big rain event.  Once a year they’ve done some testing both upstream and downstream for the water quality tests.  Mr. Swafford stated he noticed a photograph is dated May 4, 2011.  The photograph shows the site is completely under water.  Has there been any testing after May 4, 2011?  Connie Griffin explained the photograph is not part of this case.  It is only a representation and not a photograph of the site.  Mr. Coppock reiterated they have water quality information upstream and downstream for at least four to five years.  They test for metals and a lot of other things.

 

David Drake – Asked Mr. Carmin why it was filed as a PUD rather than a rezone.  He was on the Plan Commission for several years.  Traditionally, a PUD was a collection of different properties with different uses.  In other words, there was some residential, some multi-family and possibly some commercial all benched together which was the traditional concept of a PUD.   Mr. Carmin replied there are several differences.  First, the vehicle servicing that’s ongoing on the building closest to McNeely Street is a C-3 use.  It’s not an I-2 use.  The recycling and salvage operation is an I-2 use.  Pip Jay Property to the east is part of the petition and will be left as a C-3 use.  In a PUD you get a development plan process and straight rezoning you do not.  If this was straight rezoning, the zoning gets approved and they do what they want within the confines of a grading permit or a drainage plan.  In a PUD you get the opportunity to get through the next stage which goes back to the Plan Commission which will be the development plan review.  The development plan review looks at how things are situated on the property and what protections in some of the site development things would be done.  There is a lot of difference between a straight rezone and a PUD that will show up.  As a rezoning there would be only one step.  As a PUD it would take two steps.  First would be a rezoning to I-2 which is not presently in the Town and then within the I-2 would have to be a petition for a variance dealing with the set backs in residential areas for the salvage operation.  The setbacks range from 500 to 800 feet on one side.  A straight rezoning doesn’t lend itself to working and doesn’t give them development plan control. 

 

Dianna Bastin – Asked what is on the Pip Jay property.  Mr. Carmin replied it is vacant right now.  Ms. Bastin asked if it is just a lot.  Mr. Carmin answered yes, it’s the long narrow lot between the abandoned railroad and Jack’s Defeat Creek. 

 

David Drake – Adjourned meeting for a break.

 

David Drake – Called meeting back to order.  There will be a 30 minute public comment period with a maximum of three minutes per person.

 

Mae Cassady and Mike Cassady – They are adjoining property owners and have been for approximately 20 years.  They don’t have an issue with it.

 

Everett Anderson, Ellettsville – Has been hauling cars for over 10 years to JB’s and he was glad to see Ellettsville has a recyclable place.  He has run ads stating he wanted junk tractors and cars in the Ellettsville Journal for the last 10 years.  The money he makes gets spent back into the Town.  If he had to haul his cars to Bloomington he would shop in Bloomington.  He doesn’t have a problem with it.

 

Pat Gray, Ellettsville – His dad was Sam Gray.  There’s an old adage that says if a tree falls out in the woods and nobody is there to hear it does it make any noise.  All of the stuff brought forth scares him half to death.  He has 20 grandkids.  He wants some land and some environment.  When he was a kid they could drink out of any stream they wanted to.  They felt safe.  They could go mushroom hunting and get a drink of water.  When he was a kid, born in 1945, his dad already had one junkyard at 10th and Morton.  His dad didn’t have to apply for permits, zoning or anything, he just started buying junk.  He was very successful.  Nobody stopped him.  There was no testing or nothing.  He was asked to keep the fires down when he burned copper and cut something up with the torch.  They moved to 12th and Monroe and his dad had a junk yard there, it covered one whole city block.  In 1950, his dad moved to Vernal Pike and bought a property that went from Vernal Pike to the old city dump which is now JB Salvage.  At that time, it was Sam Gray Salvage.  They didn’t have to apply for permits.  Mr. Gray provided examples of other salvage yards in Bloomington.  People within walking distance can carry an arm load of metal, put it on their mini bikes or wagons and go to the salvage yard and get money to feed their families.  Unemployment is rampant.  The business has been there a long time and falls under the grandfather clause.  They can’t go back and clean up everything that has happened.  Chad Stephens has promised him that he will do anything and everything that is put before him to keep that business going.  There’s big money in recycling right now.  If it is shut down, it will hurt people.  Love thy neighbor as thy love thyself. 

 

William Jans, Ellettsville – Whenever it floods he likes to take his canoe down Jack’s Defeat Creek.  It runs right beside the scrap yard.  He didn’t smell any diesel, didn’t see any oil, didn’t see any antifreeze and didn’t see any signs of a junkyard, salvage yard or anything.  The only thing he smelled was sewer.  There is sewer dumping into the creek.  The salvage yard isn’t putting anything in there and he has played in the creek since he was a little kid.  This creek is not contaminated.  He fed his family last winter by selling scrap. 

 

Brian Sample, Bloomington – Employee of Chad’s Towing and Recovery.  Mr. Drake mentioned towing was part of the operation.  It is not.  Chad’s Towing and Recovery is actually located on the south side of Bloomington.  The only thing they do at that site is store a vehicle or two.  They also generate a fairly substantial amount of revenue out of the transportation of salvage in and out of that site.  His company will be affected by this closure.  A fairly substantial amount of their annual revenue is through the transportation mechanism. They keep ten employees in full time jobs.  Based on Monroe County jobs and his payroll they’re pretty good jobs.  At this meeting, he hears a small group of people getting ready to make decisions about a much larger group of people’s wishes.  Those are actually their voters and constituents. 

 

Carolyn Sue Grasley, Solsberry – Comes to Ellettsville because Chad’s has the better prices and he is closer.  His grounds are clean.  He has helpers where other junk yards you have to unload it yourself and you don’t know where to take it.  She wants him to stay in Ellettsville.

 

Kevin Burgett, Bloomington – Brings all of his scrap metal to Ellettsville.  He lives next to JB Salvage.  He buys all of his gas in Ellettsville because he brings his scrap metal here.  If you’re a convicted felon it’s hard to get a job.  There are probably a tremendous amount of people who use this as an alternative because businesses in the area look down on criminals.  If having a scrap yard helps to clean up this community, then there should be a source for it here and not sending it to another community.

 

Austin Sims, Gosport - When he purchased his property there were some metals and stuff in the barn.  There’s a junk yard about two miles from him.  When you go there you have to wade through mud and grease.  He started bringing scrap to Chad’s and you don’t have to wade through all of that.  When you pull in the guys are right there.  It goes in a tub, they weigh it and it’s taken care of.  It’s a clean place and he hopes it gets to stay.

 

Ben Terhune, Bloomington – Owner and operator of Two Fat Guys With a Truck Scrap Metal.  He doesn’t deal in cars.  He takes about 4,000 pounds of waste out of the Town’s trash every week.  He goes to Chad’s because of the service, reliability and they have the best prices.  Before that he didn’t have an excuse to go to Ellettsville.  His money has contributed a little bit to the economy in terms of gas and food.  Overall, he has heard a lot of things from the opposition.  All of the cars in the parking lot have put more of a ecological footprint than Chad’s has in a week.  He thinks Chad’s has a right to stay open based on their business model, the way they’ve treated the community and what they’ve done for it.

 

Andy Minnick, Spencer – He and his son make a living off of this.  Last Saturday Chad’s closed because of this.  He took a friend’s truck over to JB’s in Bloomington.  If you’re worried about his, you need to go to JB’s and look.  Most towns are trying to bring someone in and Ellettsville is trying to run him out.  He doesn’t understand it.

 

Tom Byrum, Spencer – Owns a salvage operation and does business with Chad’s three to four times a week.  Everyone is under the same thing and has to abide by IDEM standards.  IDEM can come in at any moment and check the water and soil for contamination.  Twenty-seven years ago he started his business and got his salvage license 24 years ago.  He was grandfathered into Owen County.  Approximately 20 years ago, he was getting parts from Roger New’s salvage yard.  It’s been a salvage business for several years and, yes, it hasn’t had a license.  Chad Stephens has a salvage license.  They’re fair people trying to do the best they can.  He’ll pay for it if he gets caught with oil, antifreeze, windshield washer solvent, brake fluid, rear-end grease and anything that runs off the cars.  He is a fair business person.  He didn’t do business with Chad’s until he got his salvage license.

 

Jim Reynolds, Spencer – Retired Marine, scraps at Chad’s every chance he gets.  He works for IPL in Indianapolis.  He sends companies to Chad’s because he has the best price anywhere.  They can drive 60 miles and still feed their families.  There are 14 employees who are going to lose their jobs.  How about the people who don’t have jobs and come into Chad’s to put food on their table? God said give them a chance.

 

Shirley Babbs, Bloomington – Husband is one of Chad’s employees.  He lives directly behind JB Salvage.  People are complaining Chad’s is very visible.  From her house she can see JB has stacked cars 40 feet into the air.  When Chad gets his cars, he hauls them off a couple days later.  It’s a very clean place.  That job makes her house payment and buys food for her kids.  It needs to be kept open.

 

Amanda Martin, Ellettsville – Employee of Chad’s.  She does the bookwork for the trucking side of the company.  She sees the people who come in, how they’re treated and hears Jennifer talk to customers daily.  This operation is so important to the community.  It brings food to the table and puts money back into the community.  A town council is suppose to have the community’s best interest at heart.  Shutting the business down is not in the best interest of the community in this economy. 

 

Jennifer Harper, Solsberry – Office Manager for Chad’s Recycle.  Had an Ellettsville Journal article dated October 21, 2010, about the Ellettsville Richland Township Community Council.  Dan Swafford stated “It is very important for all the groups within the work area to work on all projects together.”  A gentleman stated “As staff for the Community Council he has been attending some of the Ellettsville Plan Commission meetings.  At the last meeting the subject of forcing an Ellettsville business to move because of a zoning ordinance and another reason came up for discussion.  Frank commented that he had been in contact with the Ellettsville Planning Director concerning the zoning issue.  He went on to tell the Community Council that helping Ellettsville Richland Township businesses stay within the area is part of its mission.  He also stated that zoning and enforcement is under the Ellettsville Planning Department jurisdiction and should be handled by that department.  But, he would like to offer assistance to the Planning Department as directed by the Community Council.”  Through the state she found “the next five years could see a change in business due to the limitations implemented in Bloomington.  Thus, creating

more business potential for Ellettsville.”  This tells her that Bloomington is not letting too many people open businesses.  If Chad’s stays open more businesses are going to come.

 

David Drake – It’s been 30 minutes.  There are four more people to speak.

 

Robert King, Gosport – In 1837, the founding fathers made a mistake building a town in a valley along a creek.  When it rains, the Town suffers runoff issues.  Chad Stephens has made more than a reasonable effort to deal with those issues having worked for close to 30 years in the location that he is currently performing business.  Having been flooded in that location before, he’s probably more acutely aware than anyone of the potential for runoff for contamination. As for whether or not his type of business is suitable for the location it is in, he is involved in recycling which is a green industry.  If that location is not suitable for him to recycle then why is Monroe County Solid Waste Management 300 yards to the north of him a suitable place for the same practice.

 

Bill Pennington, Ellettsville – Last winter, Chad’s kept him from losing his house and truck.   Mr. Stephens is willing to do whatever is needed.  He use to work for Larry Todd at the landfill and they would clean it.  It was tested every so often.  It was clean.  Why can’t the Town ask Chad to build a miniature plant where water comes in, goes into a pit, purifies, goes into the pond where it leeches, test it and then haul it back to the sewer plant?  He appreciates Chad’s.  He doesn’t hear any noise.  The Town Council has the power to tell Chad Stephens what needs done.  If they want to help him, they can.  You don’t just take it there, you make friends.  Chad’s pays taxes and he brings money into the community.

 

James Drake – Works for Chad’s.  The legality of Chad’s salvage business.  It’s not the first time the rezoning of the property has become before the zoning board.  The first time was in 1983.  The January 6, 2010 meeting stated “There was not any mention of the salvage business in these documents.”  They have asked for the minutes from the 1983 meetings and they have not received them because they don’t exist.  The Ellettsville Journal’s records do exist and they did report that a zoning change had been requested.  They also wrote on March 9, 1983 edition, page 8, “They recommended the approval of rezoning the Boone Webb property on Matthews and McNeely Street.”

 

Dan Farley – Operations Manager at Chad’s.  IDEM has given them a clean bill of health.  The Secretary of State’s office has stood up for them to get a salvage permit.  He runs the salvage yard and pays the customers.  He helped clean it up.  Chad’s employees 12 people in the salvage yard and 8 in the Chad’s Towing businesses.  Photographs show the business is cleaner now than in the 1980s.  They are up to 100 customers a day.  Whenever Sandra Hash said “red flags”, it should be red flags because they cleaned it up.  They are processing 200 to 300 cars per month.   They have passed surprise inspections. 

 

Dianna Bastin – Asked Connie Griffin if she has any reports on contamination in Jack’s Defeat Creek.  Ms. Griffin replied no, not on this particular case.  Ms. Bastin asked as a direct result of Asher Trucking or Chad’s Recycling is there any contamination in Jack’s Defeat Creek.  Ms. Griffin responded she has not looked at any reports that would stipulate that.

 

Dan Swafford - Asked if Ms. Griffin had copies of the report from the surprise inspections.  Ms. Griffin replied she has a copy of the IDEM inspection.  Mr. Swafford asked if it was true Chad’s had passed the IDEM inspection.  Ms. Griffin responded IDEM stated they had done a good job.  They were non-compliant in the salvage license.  The salvage license according to Ashley Humphries, Secretary of State’s Attorney, said this is a conditional salvage permit and they are waiting on the outcome of the rezoning hearing.  If it’s not accepted then the conditional salvage license will be pulled because it was based upon them making contact with Chad’s as well.  The Secretary of State’s office is pro business and they did issue the conditional salvage permit.  The permit will be determined based on the findings of this meeting.  Mr. Swafford requested Ms. Griffin read the codes Chad’s is violating for the record.  Ms. Griffin responded she had read them into the record earlier.  Mr. Swafford asked how many codes were being violated.  Ms. Griffin stated they are a prohibited land use, filled in a floodplain without a grading permit issued by the Town of Ellettsville or the DNR so they needed the after the fact permit which is the Flood Control Act, I.C. 14-28-1, no salvage issued at the time the inspections started, §152.105(b) – Cumulative effect of the proposed development, §152.084 - State of Indiana license required-salvage license, no drainage site plan under §152.145 and code stipulations under §152.296(i)(j).  It would be very difficult to know exactly what land uses are going on without aerial images because the property has vegetation and a buffer around those areas.  The petitioner gave photographs at the October 6, 2011 Plan Commission meeting which shows that is very difficult to see what is going on at the site.  The historical photographs since this has begun show that they have continued to clean up after the Town has brought up issues.  What would have been happening if these issues were not brought up without anyone coming in for inspection and drawing attention to the Town Council and the community? 

 

Phillip Smith – This is not against Chad.  Chad is a good and decent guy.  His family uses Chad’s because they refuse to go to other places.  It is what the Town Council thinks is best for the Town of Ellettsville.  Chad is breaking the law.  Does the Town Council tell Chad to go ahead and break the law?  There have been a lot of jabs against Connie.  This will not win any brownie points.  She’s doing her job and what the Town Council asked her to do which is in her job description.  The Town Council isn’t doing this to hurt anybody.  They’re doing what they have to do.

 

David Drake – He’s all for supporting business.  This isn’t about Chad being a nice guy.  It isn’t whether everybody likes his business or not.  It’s about responsible development and following the rules.  The Plan Commission spent a lot of time on this.  All the Town Council gets to do is say “yes” or “no” on the Plan Commission’s recommendation.  They can’t tinker with the plan  and can’t change things to suit things they would rather see.  With as much time as the Plan Commission spent on it, he would have to have a good reason to override their recommendation.  Other than the fact a lot of people spoke during this meeting, very few of them actually are residents of the Town of Ellettsville who are voters.  Someone made the point earlier that they’re voters.  There needs to be a better reason than that to override the Plan Commission’s recommendation.  If someone came to the Town Council with this as a brand new thing to put in that location they would say no.  The only reason it is a consideration now is because apparently going on without the legal right to do so.  Should the Town Council say he’s done it for a long time when you weren’t suppose to just go ahead and keep doing it.  The Town Council can’t do that they have to uphold the law.  A lot of people have strong emotions and they have a personal vested interest and he understands that.  The Town Council isn’t allowed to put emotions into it.  They have to follow the law. 

 

Dan Swafford – Asked the opinion of Darla Brown, Town Attorney, on the code violations and any input on what has been said before the Town Council.  Ms. Brown stated she would answer specific questions. 

 

Dianna Bastin – Has been trying to come up with a reason not to support the Plan Commission.  She understands they need the money and it’s their jobs.  She likes Chad.  She’s lived here all of her life.  He’s cleaned up the property and has done a great job.  The site, dirt, greases and oil doesn’t bother her.  She knows he is trying to do the right thing.  He thumbed his nose at Ellettsville until all of this started coming up.  He didn’t get the permits.  She doesn’t care if someone else was doing it for 25 years and didn’t get caught.  It was wrong.  They’re not shutting down the whole business.  They’re discussing the recycle part of the business.  The people who work for Asher Trucking, it is her understanding they will not lose their jobs. 

 

Mike Carmin – It was his impression this issue may be tabled for further information and act on it next month.  The Town Council has 90 days to act from the date of the Plan Commission decision.  Mr. Drake stated it was either “yes” or “no” based on the Plan Commission recommendation.  This is not correct.  They have lots of options.  One of which is they can oppose conditions or approval.  They’ve already suggested conditions in the commitment.  The Town Council can send it back to the Plan Commission with specific guidance on additional text.  With regard to the comments “do they keep breaking the law” he explained the following code violations:

 

·        The grading permit issue is being dealt with by the DNR. 

·        The salvage license is a done deal.  Everyone keeps saying it’s “conditional” but it’s a done deal conditioned only if there is no salvage operation there you don’t need a license.  This is what makes it conditional.

·        §152.105(b) Cumulative Effect was cited and the Town Council has never been told they are in violation of this code.  It’s the cumulative effect of .1 feet and not 1.2 feet.  It’s 1.2 inches.  There’s no evidence they’re in violation.  So, there is no violation.

·        A grading permit wasn’t drawn.  That is a violation.  This is an issue to be resolved.  The Town Council’s decision does not effect this. 

·        Not a permitted land use.  Absolutely.  This is one reason they’ve filed the PUD.  That violation is cured by the PUD approval.  The bottom line is of all the code violations they were given, the only one that is not answered with the PUD being approved is in DNR’s control or to come back for the drainage site plan.  This will be part of the development plan process that will have to be acted on by the Plan Commission.  There is no issue of “do we say just continue to the violate the law” because this cleans the slate subject to DNR finalizing the after the fact permit and then they come back for the development plan.  Code violations are not a reason to deny the PUD.

 

Dan Swafford – His suggestion is to table this for a couple of reasons.  The couple of things he brought up that he wants the engineer to help with on the reports and also the fact there isn’t a full Town Council.  This is a very important meeting.  All members of the Town Council need to be present to make the decision. He would like to see the DNR report and no one has given him a date.  He has been asking for the report from day one.  He understands it takes a long time but he wants to see the DNR report before he makes a decision.

 

David Drake – If this is tabled then Mr. Swafford needs to make sure he has what he needs before the next meeting.  Mr. Swafford stated he would like to get with Rick Coppock to help him interpret reports.  Hopefully, the DNR report will be within two weeks.  If someone could continuously check on the report and show they have been checking on it at the next meeting.  Mr. Drake commented he’s not big on tabling something just so they can avoid making a decision.  Mr. Swafford stated there were two things he asked and he will probably go back to the minutes to recall the questions he brought up and discussed with Rick Coppock.

 

Chad Stephens stated salvage was there when he was 10 years old.  Roger has done salvage there all of his life.  When he started and turned it into a place for them to come he went and got Dan to run it.  He’s not a lawbreaker and never has been.  He loves business, giving people jobs and having some place for people to come.  Has never snubbed his nose at Ellettsville because he never thought he was doing anything wrong.  As a kid, he watched the waste water plant get tore down.  He has pictures of fill being added to the waste water plant.  What made him think he needed to get an after the fact permit when he challenges the Town to provide him with an after the fact permit for its fill?  He watched the Town dump truckloads of dirt and he has the pictures to prove it.  Sandra Hash asked if it was in the lagoon.  Mr. Stephens replied no, it was where the building stood.  He apologizes if he broke any laws because he didn’t.  When he put the dirt in, he didn’t think he was doing anything wrong.  He didn’t think he was doing anything different than what the Town had done.  Mr. Carmin didn’t want him to talk at this meeting.  There have been changes in the last four days.  There are things stated in the paperwork of what he will do.  In one section, it talks about if he buys another place.  He is in the process of buying property and it is not in Monroe County.  The environmental unfriendly things that come in will leave in 48 hours.  The 48 hours are put into place to cover Sunday.  Those things will be processed out of this county.  There will be no oil, no draining of fluids, processing of cars and no torching of heavy iron that contain fluids.  These are the big things everyone is scared of and they won’t be done on site in this county.  This will be the collection of pop cans, copper, old sheet, long steel and those things that don’t claim fluids.  If this goes through, and it looks like it will, by December 1, 2011, the main site will not be in this county.  This will be a feeder yard.  In a feeder yard, the cars are still brought in and they will be loaded up and hauled out of county.  Connie said that she was the one that every time she found something they were right on it cleaning it.  If those are the things they’re worried about seeing then they won’t be there.  There will be no fluids and no tanks holding fluids.  The Town has an enforcement officer and he can come to the site any time he wants.  With moving out of Ellettsville, there will still be four or five jobs here along with Asher Fleet Services.

 

David Drake entertained a motion to table this to the next meeting.  Dan Swafford made a motion to table this to the next meeting.  Dianna Bastin seconded.  Roll Call Vote:  David Drake – yes; Dianna Bastin – yes; Phillip Smith – yes and Dan Swafford – yes.  Motion carried 4-0.

 

David Drake – Announced this will be on the agenda for the next meeting.

 

Supervisor’s Comments

 

Mike Farmer, Ellettsville Utilities – Jean Ramsey is retiring on Friday, October 28, 2011.  She has been working for Ellettsville Utilities for 21 years and he thanked her for her dedication and service to the community.  She will be missed.  There will be an open house on Friday, October 28, 2011, beginning at 11:30 a.m.

 

Dan Swafford – Thanked Mike Farmer for taking care of the sidewalk issue at Autumn Ridge.

 

Sandra Hash – Property and liability insurance is getting ready to renew.  The May Agency gave her the equipment and property lists.  She made copies and distributed them to all of the supervisors for verification.   

 

Council Comments

 

David Drake – There’s bulky item drop off days with the Monroe County Solid Waste on Friday, October 28, 2011, and Saturday, October 29, 2011, from 8:00 a.m. to 4:00 p.m. at the Fairgrounds.  

 

Adjournment

 

Dianna Bastin made a motion to adjourn.  Dan Swafford seconded.  Motion carried.  David Drake adjourned the meeting at 9:43 p.m.