October 8, 2007




The Ellettsville, Indiana, Town Council met in regular session on Monday, October 8, 2007, at the Fire Department Training and Conference Room.  Dan Swafford called the meeting to order at 7:30 p.m.  Phillip Rogers led the Pledge of Allegiance.  Dan Swafford asked for a moment of silence for the passing of a former Town Marshal, Don Kutser.  Phill Smith led in prayer. 


Roll Call:  Members present were Dan Swafford, President; Dianna Bastin, Vice-President; Ted Robertson, Phillip Rogers and Phill Smith.  Sandra Hash, Clerk Treasurer and Rick Coppock, Town Engineer were also present.  Mike Spencer, Attorney was on vacation. 


Supervisors Present:    Jim Davis, Gary Darland, Mike Farmer and Frank Nierzwicki were present.  


Approval of the minutes


Phill Smith made a motion that we approve the minutes for the meeting September 24, 2007.  Dianna Bastin seconded.  Motion carried.


Action to Pay Accounts Payable Vouchers


Dianna Bastin made a motion we take action to pay Accounts Payable Vouchers.  Phillip Rogers seconded.   Motion carried.


Ordinances on Second Reading


Ordinance 07-10 to annex 10 acres at 4125 West State Road 46 and 3824 West Forrest Park Drive – Don Cowden and Brett and Barbara Haley petitioners


Frank Nierzwicki, Director of Planning Services presented the voluntary annexation for approximately 10 acres on the corner of Smith Pike and State Road 46.  This annexation includes half an acre, around the corner, where a daycare center located.  The Plan Commission has recommended this for approval.  Dianna Bastin clarified this annexation does not include Arby’s nor the Member’s Choice Credit Union but it does include the new IU Credit Union and the area with the mulch business. 


Phill Smith made a motion to pass Ordinance 07-10 to annex 10 acres at 4125 West State Road 46 and 3824 West Forrest Park Drive – Don Cowden and Brett and Barbara Haley petitioners.  Phillip Rogers seconded.  Roll call vote:  Dan Swafford – yes; Dianna Bastin – yes; Ted Robertson – yes; Phill Smith – yes; Phillip Rogers – yes.  Motion carried 5-0.


New Business


Owen County Bank request a water availability letter for 3419 West State Road 46 (former Baxter Property)


Rick Coppock is requesting a letter of water availability for the property located at the new intersection of State Road 46 and Arlington Road to present to the County Plan Commission.  There used to be rental units on the property and they are proposing to abandon the prior service lines and run a new service to the proposed bank building.  Dan clarified it is in our realm to provide water. 


Dianna Bastin made a motion that Dan signs a letter, as Town Board President, for water service availability for 3419 West State Road 46, Owen County State Bank.  Phillip Rogers seconded.  Roll call vote:  Dan Swafford – yes; Dianna Bastin – yes; Ted Robertson – yes; Phill Smith – yes; Phillip Rogers – yes.  Motion carried 5-0.


Public Comments


Jay Brinegar is a local businessman and has an auction house at Eagles Landing.  He received a letter from the Plan Commission stating they have received complaints concerning the presence of a goat behind Eagles Landing.  He read “In accordance with Town Code you are in violation of section 152.067 Agricultural Use within a Commercial Zone”.  He quoted the Town Code definition on Agricultural Use and stated he has until October 22nd to remove the goat or his landlord will be fined $50 a day.  He is concerned, as a citizen, that one goat does not change the use to agricultural.  The Director of Planning Services is bound by the same documents as Jay Brinegar.  The Director wants to interpret a goat as being a domesticated farm animal.  Jay Brinegar read Ellettsville Town Code 152.003 in the Planning and Zoning regulations in its entirety.  Jay Brinegar attended the Plan Commission meeting and quoted the job description of the Planning and Director Services to Frank Buczolich.  The President of the Town Council, Dan Swafford and Plan Commission President, Frank Buczolich are Frank Nierzwicki’s supervisors.   This came as a surprise to Frank Buczolich.  Jay Brinegar asked Frank Nierzwicki for proof where the demand on transportation, infrastructures, surrounding properties and values of land were being affected.  Frank Nierzwicki was unable to respond to any of those questions.  Jay Brinegar feels Frank is bound to answer those questions because of the particular paragraph in the Planning and Zoning regulations.  He reiterated the goat behind Eagles Landing is a pet and does not change the zoning.  Pets are mentioned in the Ellettsville Town Code in two chapters; 196.01 states the Town Marshal is responsible for collecting and impounding fowl running at large and there are chapters on hogs, pigs and swine.  He feels he is being “man handled”.  Frank Nierzwicki is taking away his rights.  He does not know how the Board feels about putting a person in power without direct supervision.  He asked Frank Nierzwicki about the complaints and his answer was he couldn’t remember; when asked about the number of complaints, Frank’s response was between two and eighty-nine.  Jay requested copies of the complaints and when he received them they were anonymous in nature without an actual complaint just stating there was a goat.  He does not know the policy for handling complaints.  The first complaint was left on the answering machine on August 20, 2007 at 9:30 and the bottom of the page showed a response by 10.  Jay thinks this is a “travesty” in fact Frank’s investigation took half an hour to recognize a violation in zoning while it took Jay sixteen hours worth of research.  Jay has requested and received copies of the complaints from a police officer.  Dan Swafford asked Jay if the goat is a pet, kept at his residence and brought to his business daily or is the goat at Eagles Landing full-time without supervision.  Jay explained he does night security for Eagles Landing working up to 20 hours per days.  The goat is at Eagles Landing permanently.  Dan asked Dianna what was discussed at the Plan Commission meeting.  Dianna stated Jay Brinegar has the right to go to the Board of Zoning Appeals.  Dianna did research on-line and could not find where a goat was a pet anywhere.  There are a lot of animals not listed in the Town Code.  Dianna had people ask her questions, not complain, about the goat and she spoke to Frank about it.  She stated to Mr. Brinegar the Town Supervisors make decisions daily using Town Code and the Town Council depends on them to do that, including Frank Nierzwicki.  Mr. Brinegar has the right to go before the Board of Zoning Appeals.  Jay Brinegar stated it costs $300 to file a variance with the Board of Zoning Appeals.  He has spoken with all of the surrounding landowners in person and has their signatures but found out through talking with the Clerk-Treasurer he needs to give notice by certified/registered mail at $5.42 a piece to 28 surrounding landowners to file a variance.  Paragraph 152.003; Frank Nierzwicki is bound by the Town Council to answer questions.  If this is a complaint driven process, Jay Brinegar would like to know who complained so he can resolve the issues.  If he does not know who is complaining or what they are complaining about, how is he able to reconcile this.  Did the goat do something, were they offended by the goat, did they feel in endangered by the goat?  Dianna reiterated she received a question about the goat and not a complaint.  Jay Brinegar referred to the letter from Frank which states “complaints”.  As a citizen, he feels this should to be addressed.  He does not know what the problem is.  Dan Swafford is unclear about what Jay Brinegar is asking from the Town Council.  Dan suggested Jay write his question down and Dan will see what needs to be clarified.  He will have the Town Attorney review the information.  Jay Brinegar wants the legal right to have a pet.  He asked if he is in the process of filing a variance with the Zoning Appeals Board, does he still need to remove the goat on October 22 or face fines.  Dianna answered he will need to discuss that with Frank Nierzwicki during business hours. 


Jay Brinegar spoke on another issue.  He spoke during a Town Council meeting in March of 2006 on a sign issue.  At that time, some signs belonging to himself and his landlord were confiscated by Frank.  Jay felt the process was wrong because it was not written anywhere for Frank to do that.  He attended the April 6, 2006 Plan Commission meeting and there is a “travesty” because looking back in the minutes; 45 minutes of the meeting are missing.  The minutes included the time before and after Jay Brinegar spoke at the meeting but did not include what he said.  Important things were discussed at that meeting.  Frank Nierzwicki was in charge of the tape during the meeting.  In March of 2006 he filed a formal complaint about the removal of the signs without due process because he was never told the signs were wrong.  Jay felt his signs were informational and not advertising signs; open for discussion in a gray area.  He read the minutes from the March 16, 2006 Town Council meeting where he spoke about the sign issue.  He filed a formal complaint, realizes information needs to be exchanged and sent on to the correct liaison.   A lot of things needed to happen and it never did.  Dan Swafford will look into all of this.  Jay Brinegar stated Sandy Hash does a fine job with getting the minutes together and knows she was absent during the Plan Commission meeting with the missing minutes.  There were many things discussed that were pertinent to the ideas and formulation of what the community needs to be.  Dan Swafford will check into the missing minutes.  Dan went on to say on a personal note he and others had signs removed by INDOT while campaigning and those signs were thrown away.  Jay Brinegar said other people who spoke during the meeting did have not their signs taken and when he asks Frank Nierzwicki questions it seems he never receives a firm answer.  Dan Swafford asked Jay to put the first part in writing and he will check on the minutes and the sign complaint. 




Dianna Bastin made a motion to adjourn.  Phillip Rogers seconded.  Motion carried. Dan Swafford adjourned the meeting at 8:00 p.m.