October 27, 2008




The Ellettsville, Indiana, Town Council met in Regular Session on Monday, October 27, 2008, at the Fire Department Training and Conference Room.  Dan Swafford called the meeting to order at 7:30 p.m. David Drake led the Pledge of Allegiance and Phillip Smith led in prayer. 


Roll Call:  Members present were Dan Swafford, President; Dianna Bastin, Vice-President, David Drake and Phillip Smith. Sandra Hash, Clerk-Treasurer was also present.  Mike Spencer, Town Attorney and Scott Oldham were absent.


Supervisors Present:  Jim Davis, Jim Ragle, Tony Bowlen, Mike Farmer, Jeff Farmer and Frank Nierzwicki were present.


Approval of the Minutes


Dan Swafford entertained a motion to approve the minutes for the Regular Meeting October 13, 2008.  Dianna Bastin made the motion.  Phillip Smith seconded.  Motion carried.


Action to Pay Accounts Payable Vouchers


Dan Swafford asked for a motion to pay Accounts Payable Vouchers.  Phillip Smith made the motion.  Dianna Bastin seconded.  Motion carried. 




Resolution 18-08 Transfer of Funds


Sandra Hash explained this is a general practice to move money around at the end of the year.  The Police Department requested $5,000 at the last meeting for fuel.  Funds will be transferred from the Salary Line to Gas and Oil.  The following transfers are also needed:


                       From:  1-4-353           Electric                                       3,700.00

                       To:      1-4-232           Radio Parts and Supplies            3,700.00


           From:  1-1-341           Fleet Insurance                             310.00

           To:      1-1-225           Office Machines                         310.00


           From:  1-2-243           Uniforms                                      300.00

                       To:      1-2-321           Telephone                                    300.00


Sandra stated the funds from Electric to Radio Parts will be reimbursed from the Town’s insurance company; the funds were necessary to pay claims that were due from the lightening strike.


Dianna Bastin made a motion to withdraw/change our vote from last week to do an additional fund from the General Fund; additional appropriations for the Police Department for fuel.  Phillip Smith seconded.  Motion carried. 


Dianna Bastin moved that we approve Resolution 18-08 for the previously read transfers.  David Drake seconded.  Motion carried.


Ordinances on First Reading


Ordinance 08-08 to rezone 5858 West State Road 46 from R-1 to C-3


Frank Nierzwicki requested residential R-1 rezone to C-3.  The Plan Commission has recommended this for approval.


Phillip Smith moved that Ordinance 08-08 be adopted on the same day at which it is introduced.  David Drake seconded.  Roll call vote:  Dan Swafford – no; Dianna Bastin – yes; David Drake – yes; Phillip Smith – yes.  Motion denied 3-1. 


The following discussion took place AFTER the vote


This will have to wait until the next meeting.  Dan Swafford stated this will need to be researched a little more through the BZA.  Sandra Hash, speaking as a Plan Commission member, felt this was resolved at the Plan Commission level and passed the recommendations with the understanding the only two places the antenna was allowed are in agriculture or industrial zones.  The variance would have been required regardless if it were residential or commercial.  At the Plan Commission level, they voted to proceed.  Dan feels the BZA should be given all the information.  Frank stated the issue was with the zoning; under good faith, the Planning Office, thought it was a C-3 zone.  The issue with this being R-1 is it needs to be passed as a C-3 which is consistent with the Comprehensive Plan.  This was made clear at the Plan Commission meeting and passed 5-1.  Sandra clarified there were other issues pending during the Plan Commission meeting; an additional public notice was put in the newspaper, a special Plan Commission meeting last Tuesday, all adjacent property owners were in attendance and the recommendation did go through.  The reason the Plan Commission was trying to expedite this rezone is because the mistake was ours (telling them the property was a C-3 and not R-1).  The buyer explained his two other facilities were flooded and wanted to move into this building as soon as possible.  The Plan Commission made a special effort to republish the meeting and do the rezone at no cost because it was our error.  Now the Town Council will delay them another two weeks before they can start the process of erecting their tower and closing on the property. 


Juan Carlos Carrasquel of Century 21 Realty Group, representing both buyer and seller explained when he met with the BZA; they approved an antenna on a non industrial or agricultural zone.  It doesn’t matter what zoning it starts out as; it is allowing the antenna on a non industrial or agricultural zone.  He does not believe the BZA should hear this again.  If this ordinance does not pass this evening, there will be no closing and legal action can be taken.  The buyer has been waiting for this for three months and has been misled.  Mr. Carrasquel stated there will only be an antenna on this tower and nothing else.  He asked for the Council to reconsider and submit this for a vote again.  Dianna asked Sandra if the Council moves to adopt the ordinance tonight with two thirds of the vote, and vote again can it then be passed.  Sandra said it takes 100% to pass an ordinance on the first night but zoning ordinances only take one reading per Mike Spencer.  Since it is on the agenda as a first reading it should be a unanimous vote to pass it tonight. 


Russ Ryle, Reeves Road resident and amateur radio operator spoke with the Chief Engineer of the radio station (on a hobby basis) and explained in more detail about the antenna.  It will be a point to point digital link that will look like an oversize satellite dish; one and a half times the Direct TV dish diameter on houses, point straight in an upward angle from the tower on the roof of 5858 West State Road 46 to the Louden Road antenna.  The frequency will be at a very low power.  This is very different from a cellular tower.  David Drake stated the “tower issue” is a non issue for this decision.  This decision is to approve the Plan Commissions recommendation that this piece of property be zoned C-3.  Dan Swafford clarified if we pass the zoning, there will be no stipulations on the tower or what can be put on it.  Are we voting on the whole package?  Frank said the voting is on the rezone.  Sandra stated the BZA is the only one who can vote on the variance and they passed it.  Dianna summarized the confusion; forget the tower or radio station, the Council is voting on this property for an individual selling his property to someone who wants to put a “business” type operation in.  We are only voting on the zoning issue.  David Drake understands Dan’s concerns about the tower but that is not the issue before us tonight.  There is nothing to be gained by waiting another two weeks.  Dan is not opposed to the rezoning; it is the fact the package was put together is such a way that once we rezone it, that is it.  He spoke with members of the BZA and some of them are not happy about not having all the information when they approved it.  Frank reiterated the variance was because the building was not in an industrial or agriculture zone.  Dan stated Dianna’s explanation has made it clearer for him. 


Dan Swafford changed his vote to yes.  Motion carried 4-0. 


The following discussion took place before the vote


David Drake asked for more information before the voting took place.  Frank explained a radio station would like to relocate to this spot.  Originally there was confusion on the zoning of this property.  The property is consistent with Comprehensive Plan.  The adjacent properties are either commercial or industrial.  David Drake asked what happened at the Plan Commission and Board of Zoning Appeals meetings with this property and the radio antenna.  Frank outlined the history on this property.  The radio station has a forty foot antenna with a radio receiver between the tower at Louden Road and property at 5858 West State Road 46.  The Town Code was researched.  The property had to be in an industrial or agriculture zone to allow the tower.  They received a variance from the BZA.  When this was brought before the Plan Commission, it was found the property was zoned R-1 and not C-3.  David asked how a forty foot tower will fit into our Wireless Communications Tower Ordinance.  Frank stated it does not fit in; the issue is with the height and it being similar to other television antennas (going out of style).  This is not a transmission signal going out to other locations.  This antenna will be more like a “dispatch” for a business communication.  David asked for clarification; it is in compliance with the ordinance on wireless communication towers or it had to have a variance from that.  What was the variance for?  Frank explained the variance was the zoning; towers have to be in an agricultural or industrial zone and the property was thought to be commercial.  The variance is for having a having tower at that location.  The height was listed at forty feet and no one could come back in a few years and put up a hundred foot tower.  Dan Swafford asked if when this variance was brought to the BZA, they were made aware this property was residential and not commercial.  Frank said he did not think so.  Dan asked why this doesn’t go back to the BZA and let them know they approved something that was not commercial.  Frank explained the property was not zoned correctly for either commercial or residential.  David asked if they will have to get another variance.  Frank said no and stated other zoning issues were found giving the example of Cedar Bluff Gardens; the owner came in for a rezone and there was confusion with the zoning on some of his lots.  Frank will be working with Rick Coppock to compare ordinances with the town zoning map.  David does not have a problem making this property a C-3 but he does not want it to look like the Council is “back dooring” the Communication Tower Ordinance by getting a variance.  Frank is working on cleaning up the code.  Dan asked what will happen if they ask about additions or attachments.  Frank stated “conditions” can be put on this property.  David Drake asked if a “condition” could be put on a rezone.  Frank asked if the Councils’ concern was adding a ray to the tower and would they have to come back for additions.  Frank stated “the approval is for a forty foot tower, as is, without any other attachments; if there are any other attachments they would have to come back through the planning process”.  Dan clarified if the Council approves the rezoning, the tower goes up and it goes from there.  Sandra stated there needs to be a vote on whether this will be adopted on the same day it was introduced.  David stated it needs to be a unanimous vote to pass it on the same night.  Dianna asked if this was for the rezone.  Sandra stated the motion on the floor is to adopt this ordinance on the first reading.  The next vote will be for adopting the rezoning.  Sandra stated Mike Spencer has informed them, in the past, zoning ordinances only require one reading; they are exceptions to the “two readings” rule.  Rather than risk any formalities the motion is on the floor to see if the Council wants to pass this in one reading. 


David Drake moved that Ordinance number 08-08 be adopted.  Dianna Bastin seconded.  Roll call vote:  Dan Swafford – yes; Dianna Bastin – yes; David Drake – yes; Phillip Smith – yes.  Motion carried 4-0.


Dianna Bastin apologized, on behalf of the Council, to Mr. Carrasquel for all the misdirection and confusion. 


New Business


Glen Morrow and Kim Pitcher, Burgess & Niple


Glen Morrow is a 1986 graduate of Edgewood High School and would like to introduce his company to the Town Council.  Burgess & Niple are an engineering company that has been around since 1912.  They have about 650 employees and 15 offices.  He works out of the Indianapolis office, handling mostly transportation and he is in charge of the Utilities Services.  He presented a brochure of the company along with his resume.  Prior to working for Burgess & Niple, he worked for seven years as the City Engineer in Greencastle and listed many other municipalities. 


Kim Pitcher is an Engineer with Burgess & Niple and a resident of Ellettsville in the Greenbrier Subdivision for over eleven years.  She outlined her work experience.  Her primary experience has been as a Transportation Engineer developing INDOT plans.  She would love the opportunity to provide services for the Town of Ellettsville, in which she lives. 


Information request from Police Chief in Barre, Vermont concerning K-9 World of Dogs in Petersburg, Michigan


Dan Swafford was contacted by the Police Chief in Vermont.  They purchased a dog from World of Dogs and they are having problems with them, as we did.  They are requesting our case files.  Dan will check with Mike Spencer but he is sure the files are public record.  Mike Spencer had the Vermont Police Chief call Dan.


Dianna Bastin made a motion, that given the records they probably are requesting are public record, that we do not stand in their way should they want them and we follow the advice of our attorney in releasing the said information.  Phillip Smith seconded.  Roll call vote:  Dan Swafford – yes; Dianna Bastin – yes; David Drake – yes; Phillip Smith – yes.  Motion carried 4-0.


Supervisors Comments


Frank Nierzwicki presented a letter from Ben Rawlins, representing the Ellettsville Branch of the Monroe County Public Library.  They are petitioning the BZA to get a variance regarding parking.  They will be taking away two parking spaces and adding 2,500 square feet to the building.  There are issues with the definition of public space.  They are requesting the $300 petition application fee be waived since the library is a public agency.


David Drake made a motion that we waive the $300 application fee for the library’s construction project.  Phillip Smith seconded.  Roll call vote:  Dan Swafford – yes; Dianna Bastin – yes; David Drake – yes; Phillip Smith – yes.  Motion carried 4-0.


Frank Nierzwicki asked permission to hire a part-time (24-32 hours) Code Inspection Officer for the Planning Department.  Frank read the job description.  This position is grant funded.  If approved tonight, he would like to advertise internally and also put an ad in The Journal.  He would like to conduct interviews the week of November 10th and hire the end of November.  There is enough money to cover the position for this year and the I-69 Community Grant will also help with this position. Sandra will have to amend the Salary Ordinance at the November 10th meeting with the second reading November 24th.  David Drake clarified this position will be completely paid for out of grant money.  Frank stated yes this is “grant” dependent.  David then clarified this person would understand they will no longer have a job.  Frank said this information is clear in the job description and will be stated in the interviewing process.  Dianna asked if this position will be strictly code enforcement.  Frank said this position will assist in the office, pavement management issues from the MPO, code violation issues and traffic counting.  Dianna’s concern is this person will be too busy with MPO pavement management issues and will not be able to do code enforcement.  Frank explained there will be $35,000 available next year from the I-69 Grant which will be able to cover this position.  We have already received money from the MPO Grant to pay the salary until the end of the year.  Sandra will have a resolution, at the next meeting, asking permission to put the reimbursements into the Code Inspectors position. 


Phillip Smith made a motion we approve the Code Inspector Officer, Department of Planning and Redevelopment Services, Town of Ellettsville job description.  David Drake seconded.  Roll call vote:  Dan Swafford – yes; Dianna Bastin – no; David Drake – yes; Phillip Smith – yes.  Motion carried 3-1.


Mike Farmer, Utilities Department is asking to increase Kyiesha Isiah’s wage from $12.00 to $13.53.


Dianna Bastin made a motion to increase Kyiesha Isiah’s wage from $12.00 to $13.53.  David Drake seconded.  Dan Swafford – yes; Dianna Bastin – yes; David Drake – yes; Phillip Smith – yes.  Motion carried 4-0.


The following discussion took place before the vote


Dan Swafford asked if she has worked for six months.  Mike stated she has worked in the office for 7-8 months.  Dan asked if she has been on Ellettsville for six months.  Mike said no; she has worked for the Utilities for over 6 months, first through a temporary agency for

90 days and as a full-time employee for 4 months.  She has been in the office for 6 months and meets or exceeds all the requirements of the job.  Mike does not think there is a “hard rule” when to increase salaries and believes she is due for an increase.  The full pay for that job is $15.06.  David Drake thinks the Utilities Department view this as a progression of steps in a position and the normal way is when someone reaches this period and is performing satisfactory they are raised to the next position.  Dianna, being the Utilities Liaison, spoke with Mike Farmer, Jeff Farmer, Becky Wines and Ky; she has hit the ground running.  She is an excellent employee, exceeded everyone’s expectation and has only improved since she became a full-time employee.  Phillip Smith asked if a six month probation period is in the Personnel Policy.  Sandra stated it was in the old Personnel Policy but it is no longer there. 


Tony Bowlen asked for approval to hire Mark Freeman as a Part-time Officer with the Ellettsville Police Department.  Tony outlined Mark Freeman’s past work experience.  Tony stated the Police Department is short staffed.  Two part-time officers will be resigning and stepping back to reserve status.  Dianna thanked the two officers who are going back to reserve status, for staying with Ellettsville and for all the hours they have put in.


Dianna Bastin made the motion to approve bringing on Mark Freeman as a part-time officer for the Ellettsville Police Department.  David Drake seconded.  Roll call vote:  Dan Swafford – yes; Dianna Bastin – yes; David Drake – yes; Phillip Smith – yes.  Motion carried 4-0.


Mark Freeman introduced himself to the Council.  Sandra will swear him in on Thursday. 


Council Comments


Dianna Bastin asked the residents of Ellettsville to the separate sticks from the leaves.  It is dangerous when the Street Department is trying to vacuum up the leaves.  The sticks will also tear up the equipment. 


Sandra Hash announced the Trick or Treating hours are set at 5:30 – 8:30 on Halloween night only. 




David Drake made a motion we adjourn.  Dianna Bastin seconded.  Motion carried.  Dan Swafford adjourned the meeting at 8:27 p.m.