August 22, 2011





The Ellettsville, Indiana, Town Council met for a Regular Meeting on Monday, August 22, 2011, at the Fire Department Training and Conference Room.  David Drake called the meeting to order at 7:00 p.m.  Dan Swafford led the Pledge of Allegiance followed by a prayer led by Phillip Smith. 


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


Supervisors Present were:  Jim Davis, Jim Ragle, Tony Bowlen and Mike Farmer.


Approval of Minutes


David Drake entertained a motion for the approval of the minutes for the Regular Meeting on August 8, 2011.  Dianna Bastin so moved.  Dan Swafford seconded.  Motion carried.


Accounts Payable Vouchers


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


Ellettsville Police Reserve Request for Appointments – Crystal Hearne and Caleb Garvin


Eric Chaudion, Deputy Marshal, Ellettsville Police Department – Requested the appointment of Crystal Hearne and Caleb Garvin. Caleb Garvin works for the Brown County Sheriff’s Department in the jail.  Crystal Hearne works for the Whiteland Police Department.  They are seeking approval for Mr. Garvin and Ms. Hearne to become Reserve Officers with the Ellettsville Police Department. 


Dianna Bastin made a motion to accept Crystal Hearne and Caleb Garvin as Ellettsville Police Reserve Officers.  Phillip Smith seconded.  Roll Call Vote:  David Drake – yes; Scott Oldham – yes; Dianna Bastin – yes; Dan Swafford – yes and Phillip Smith - yes.  Motion carried 5-0.


Sandra Hash administered the oath of office to Crystal Hearne and Caleb Garvin for both to serve as Reserve Deputy Marshals for the Town of Ellettsville.




Resolution 12-11 to correct the Public Employee Retirement Plan enrollment date for Donya Medley


David Drake – This has been discussed at length at previous meetings.  The correct figures have been put into resolution form.


David Drake entertained a motion to approve Resolution 12-11 to correct the Public Employee Retirement Plan enrollment date for Donya Medley.  Dianna Bastin made a motion to approve Resolution 12-11 to correct the Public Employee Retirement Plan enrollment date for Donya Medley.  Dan Swafford seconded.  Roll Call Vote:  David Drake – yes; Scott Oldham – yes; Dianna Bastin – yes; Phillip Smith – yes and Dan Swafford – yes.  Motion carried 5-0.


New Business


Liberty National Life Insurance Company – Gary Phillips


Gary Phillips – They’re a 110 year old company who specializes in doing business with cities, towns and counties locally.  They have about 60 cities in the state and about 35 of the counties.  The big thing they do is group term life insurance to age 100.  It’s exactly what it sounds like.  It’s a simple program.  Once an employee signs up for it, it is the same rate and the same base amount for the rest of their life whether they work for the Town, somewhere else or retire.  Their policies are on a pre-tax basis.  Once an employee purchases a policy, it comes out pre-tax like health insurance for the first $50,000.  Spouses and children can also be insured and it works the same.  The price never changes until they reach age 100.  The policy can be assigned to children when they reach the age of 18. 


David Drake – They will provide the information to department supervisors so they can show them to their employees to find out if any of their employees are interested.


PUD Petition - #7122011 Pip Jay Properties, LLC, Burch Enterprises, Inc., Roger New and Patricia New Commercial 3 uses with the addition of the following uses:  existing residential and truck and trailer parking on the parcel owned by Roger and Patricia New; warehousing and distribution; mini warehouses; heavy equipment sales and services; truck sales and service; truck and transportation companies; recycling and salvage operations; building trade shops.


Company Name

Tax ID



Burch Enterprises, Inc.




Roger and Patricia New




Pip Jay Properties LLC, Chad Stephens, member





Connie Griffin, Director of Planning – On August 18, 2011, a certification was submitted to the Ellettsville Town Council regarding the August 4, 2011, Plan Commission meeting, agenda item, PUD Application, No. 7122011.  The Ellettsville Plan Commission voted 5 to 1 to send the proposal to the Town Council with an unfavorable recommendation.  Pursuant to Indiana Code 36-7-4-605(a), the proposal is being forwarded for Town Council consideration.  On August 18, 2011, Mr. Carmin sent an email to the Town’s attorney about amending the petition to eliminate two of the parcels identified as Roger and Patricia New, a 4.21 acre lot and Pip Jay Properties which is 2.42 acres as listed on the Town Council Agenda.  At 3:45 p.m. this date, she and Darla Brown, Town Attorney, received an amended Statement of Intent and draft commitment concerning the use and development of real estate, and that Mike Carmin and Chad Stephens would be providing an amended site plan to focus only on the Burch Enterprises property of 3.09 acres at this meeting.  The amendments to the PUD application after the Plan Commission hearing requires PUD protocol to be reviewed in order to proceed further with the current or amended petition request. 


David Drake – His understanding has always been that once the Plan Commission forwards it to Town Council they don’t have the ability to tinker with it.  The Town Council either votes yes to accept their recommendation or no to not accept their recommendation.  Ms. Griffin replied that is correct.


Darla Brown, Town Attorney – Thinks the Town Code and the relevant statutes do say when it comes to this type of petition or rezone the Town Council can adopt it or reject it and can’t amend it.  The case law makes it clear that the Town Council cannot amend a proposal to change the zone maps as acted on by the Plan Commission.  In other words, the way it goes to the Plan Commission and the way it’s voted on at the Plan Commission is what comes to the Town Council.  The proposed amendment  is a substantial fundamental material change in the PUD application.   When the PUD application came before the Plan Commission it was for three pieces of property, three tracts, three descriptions and three separate owners with certain uses.  She can appreciate the fact that they have scaled back to one piece of property and one use but it is still a material fundamental change.  When it went before the Plan Commission it was published in the paper to the landowners as being a certain petition and because that has changed, Mr. Carmin and Mr. Stephens choices are if they want to move forward the Town Council hears the proposal as it went to the Plan Commission and was decided by the Plan Commission or they can start all over again with a new PUD application, new filing fee and go before the Plan Commission again with a separate PUD petition.


David Drake – Asked Connie Griffin to explain the reasoning for the Plan Commission’s recommendation.  Ms. Griffin replied the Comprehensive Plan was reviewed and they followed state criteria and protocol.  The Plan Commission reviewed it against the Comprehensive Plan, they found the land use to be incompatible with the Town’s goals in the comprehensive plan.  Those would be based on its proximity to residential property, downtown, historical areas and the Heritage Trail project; noise on which the neighbors have commented and environmental concerns with its location near Jack’s Defeat Creek.  Sandra Hash commented it’s also in a flood zone AE.


Dan Swafford - Thinks it has really changed the application tremendously.  His recommendation would be for it to go back to the Plan Commission if they’re going to stay with the amended PUD application. 


Mike Carmin, Attorney for the Petitioner – They recognize it is a change by a reduction as opposed to adding something new.  It is less than what is being considered.  It’s his understanding that one option of the Town would be to send it back to the Plan Commission for further consideration in light of the requested amendment.  Procedurally if that’s the hang-up and it has to be as a restart, they would rather not do that.  It could surely be done.  He was surprised at the Plan Commission getting it before Town Council at this meeting.  When they had the pre-petition meeting, they discussed at that time there would be certain information that was not going to get done timely and they were told to go ahead and file.  If it takes two meetings of the Plan Commission to consider it, they can do it.  They get to the Plan Commission last month and they’re on a race track to get to the Town Council meeting this date.  Mr. Swafford wanted additional time for information that had just come in.  Not to say he’s in support of it but he wanted time to consider additional information that had just come in such as the flood plain modeling.  That flood plain modeling is the single biggest contributor to the reason for the requested reduction in size.  Now that they have the flood plain modeling done, they know where the flood plain limits are and they can address some of those issues in terms of the petition.  Some of the petition is also in response to comments that were received at the Plan Commission meeting.  There were concerns to scale it back to ensure that it doesn’t extend across Jack’s Defeat Creek and some other issues.  If the only recourse to get a property considered is to say it needs to go back to square one and re-advertise, re-petition and re-notice to the adjacent property owners, new filing fee, then that’s what they will do. 


Dan Swafford – Asked Mr. Carmin if they’re going to stay with the amended petition.  Mr. Carmin responded they will stay with the amended petition.  There are three parcels side by side.  Burch Enterprises is the middle of three and west of Jack’s Defeat Creek.  This removes the Pip Jay Properties which is the long narrow strip between the railroad and the creek.  The parcel to the far west which is about a third of the size of the original petition is owned by Roger and Patricia New.  The survey shows the piece in the middle being 2.99 acres which currently has the Chad’s Truck Service use and the recycling salvage use in that area.  Flood plain modeling concentrates for the limits of the flood plain elevations.  The other part of the Amended Petition is a document titled “Recordable Commitments”.  This is a commitment concerning the use and development of real estate.  In the zoning area it allows the petitioner to submit, and the authority to accept, conditions that would apply to the real estate if the rezoning is approved.   The commitments address the issues of the ongoing use of the property and with regard to the flood plain, the collection of materials and where they will be stored, how they will be stored, seal containers, the elevation of the flood plain and a host of other things related to the operational aspects of how the property would be used if it continues to be used in the same matter after rezoning.  This should be considered by the Plan Commission as well.


Dan Swafford – Asked Darla Brown, what is their recourse if he is going to stick with the amended petition.  Ms. Brown responded procedurally, Mr. Stephens needs to start over.  If Mr. Stephens elects to start over, there is still a petition before Town Council that was certified by the Plan Commission so there needs to be a motion to deny it.  Then, Mr. Carmin will start over.  Under the Town Code, they cannot re-apply within a year but that will not apply in this case because there is a fundamentally new petition. 


Scott Oldham – Asked if the petitioner is wanting this denied so they can start over. Darla Brown answered Mr. Carmin and Mr. Stephens have elected to start over again because they want to amend the petition.  There isn’t anyway to send it to the Plan Commission for an amendment.  He has to start over.  The Plan Commission has already voted on a PUD with property descriptions and uses that he is starting over.  They have a petition before them which was sent by the Plan Commission so they have to do something with it so there is some kind of closure. 


David Drake entertained a motion to deny the PUD application, No. 7122011.  Dan Swafford made a motion to deny the PUD application, No. 7122011.  Scott Oldham seconded.  Roll Call Vote:  David Drake – yes; Scott Oldham – yes; Dianna Bastin – yes; Phillip Smith – yes and Dan Swafford – yes.  Motion carried 5-0.


Dan Swafford – Asked the next meeting date.  Connie Griffin replied October 6, 2011 will be the next date they can come before the Plan Commission.


Dana Kerr, Attorney – Represents an individual who is opposed to the PUD.  The operation is currently being performed outside of the particular zoning.  Mr. Kerr asked if this will be allowed to continue until it is heard because the process has already been going on for a long, long time.  So, the rezone seems like another way to delay and to keep it going for longer.  Scott Oldham responded they were just discussing that and asked Darla Brown if there is a business license coming from the state.  Ms. Brown stated he has obtained a salvage license.  There is another permit that is in the works with the Department of Natural Resources.  Mr. Oldham asked if they can continue with that business or do they need to cease the operation.  Ms. Brown answered she and the Director of Planning have discussed that and she didn’t know if she could answer the question at this time.  Mr. Kerr stated their concern is the salvage license.  A person pays $7.50 and completes an application and they get it.  The fact is, the operation is against the zoning laws and the community is being affected by that.  They want the Town Council and their attorney to consider what they can do because this has been operating for an extended period of time against the laws of the Town. 


Supervisor Comments


Sandra Hash – Received a letter that the IRS is going to come for a compliance check the third week in September.  They have been to the Town one other time.  At the last meeting the Town Council approved the 457B Plan for the Town.  A representative from that company will be in Ellettsville on September 21, 2011.  The communication was sent to the Town Council and supervisors.  A copy of the letter will be put in the employees paychecks to find out if anyone wants to come to a meeting or contact the company directly. The state auditor arrived today to audit 2010.


Council Comments


Dianna Bastin  She and David Drake went to the annual Ellettsville Fire Department picnic where they honor the firefighters who have been in service.  Billy Baxter retired with 38 years of service.  She presented Chief Jim Davis with his 40 year service award.  Brian Leonard and Mike Stalcup had 20 years.  There were several people honored.  She honored Billy Baxter for 38 years of service with a round of applause.


Privilege of the Floor




Phillip Smith made a motion to adjourn.  Dan Swafford seconded.  Motion carried.  David Drake adjourned the meeting at 7:30 p.m.