Plan Commission Recommends Ordinance, Zoning Changes
July 28, 2016 at 4:25 p.m.
• Ordinance changes to be sent to commissioners
Amendments to the county's zoning and subdivision control ordinances will be forwarded on to the Kosciusko County Commissioners.
Wednesday, the Kosciusko County Area Plan Commission unanimously approved recommending the changes.
Under permitted uses, "apartments" was reworded to "multi-family dwellings."
Parking spaces required for multi-family uses are proposed at four per dwelling unit, including covered or enclosed spaces.
The definition of a multi-family dwelling is a residential building designed for three or more families, with the number of families in residence not exceeding the number of dwelling units provided. An amendment to the definition is that a multi-family dwelling may include but is not limited to apartments or condominiums.
For signs, the proposed ordinance amendments will require that all signs listed under the ordinance shall obtain an approved sign permit prior to placement or construction. To obtain the permit, a completed sign permit accompanied by a site plan must be provided to the county plan commission. For signs on state regulated rights of way, state permits must be obtained and presented prior to the issuance of any county permits.
No sign may be closer than 35 feet to an intersection.
For communication towers, all towers, when required under federal law to be lit, shall be lit in such a fashion that the lighting is non-obtrusive, which may include but is not limited to alternating lighting: white light at day, red light at night.
Under fees, the ordinance already says no fee is charged if an application is made and the improvement location permit/occupancy permit/sign is issued before the start of construction occupancy. The proposed amendments states, "No fee shall be charged if an application is made and improvement location permit/occupancy permit/sign permit is issued to the current property owner subsequent to a prior property owner failing to obtain the proper permits."
Under Article 2 of the subdivision control ordinance, a division of land into parcels or tracts of 20 acres or more that does not involve any new streets or easements of access is not considered a subdivision and is exempt from the ordinance requirements. The proposed amendments added that the road right of way shall be included into the calculations as surveyed.
Final plats shall conform substantially to the preliminary plat as approved. The revised ordinance adds that in the instance a guarantee is posted, all improvements must be completed within three years.
Changes to the regulations regarding subdivision entrance signs were considered but will not be a part of the amendments to go to the commissioners. Plan commission member Larry Coplen had several questions regarding the changes the plan commission will review.
For more information, copies of the ordinance changes are available at the plan commission office in the county courthouse, Warsaw, or online: www.kcgov.com
• Commission denies Newcomer petition
Rezoning decisions on one piece of property later can affect the Kosciusko County Area Plan Commission's discussions on rezonings of nearby properties.
A case earlier this year had such an effect on two petitions before the plan commission Wednesday.
In January, Donald Longacre petitioned to rezone approximately 6 acres from an agricultural district to either an agricultural II or a residential district. The property is on the south side of CR 900N and west of CR 500E in Turkey Creek Township. The plan commission voted to recommend to the county commissioners that it be rezoned agricultural II.
On rezonings, the plan commission only is a recommending board to the commissioners. But after hearing the petition, the commissioners voted to rezone the property residential.
Wednesday, the plan commission heard a petition by Kyle Newcomer to rezone approximately 20 acres from an agricultural district to either an agricultural II or a residential district. His property is on the west side of CR 500E and 654 feet south of CR 900N in Turkey Creek Township.
Also, Earl Overman petitioned to rezone 6.61 acres from an agricultural district to a residential district. The property is on the west side of CR 500E and zero feet south of CR 900N in Turkey Creek Township.
Attorney Steve Snyder, representing Newcomer, said Newcomer wants to build his house on the back 10 acres and doesn't need the other 10 acres. He wants to rezone the property so he can sell off two five-acre lots. Snyder said he was comfortable that the commissioners have decided the area will be residential with their previous decision on Longacre's petition. No good farm land is being taking out of production.
Remonstrator Steve Anderson said he is concerned that there would be more than three homes on the 20 acres and is worried about the environmental impacts. The back part of the land is tillable ground, he said. He heard a rumor the property will have 17 houses on it and he was against that.
Roy Caywood, remonstrator, said if it's rezoned residential, he is afraid his tenants on his farm ground would lose the right to farm there because homeowners would complain of the farm smells. He said he and his wife are retired and they need the money.
Plan commission director Dan Richard said if it's rezoned, the plat would require an agriculture disclaimer that homeowners on the property recognize the farm ground was there first and could not complain about the farming business.
Caywood said that would help but he'd still like it as it is.
Snyder, in his rebuttal, said if the Andersons are so concerned about the property, it had been up for auction recently, they could have bought it then. The commissioners, he repeated, made it obvious this area would be residential. And he repeated that Newcomer does not plan a high density subdivision.
"The highest and best use is residential," said Snyder of Newcomer's property.
Plan commission member Don Arms made a motion to approve the property as agricultural II. Hal Strong seconded the motion but the motion received only three votes. The nine-member board requires five votes to approve a motion.
Kevin McSherry, board member, then made a motion to rezone it to residential. The motion died for a lack of a second. McSherry then made a motion to deny both rezonings. Charlie Haffner seconded the motion and the motion to recommend to the county commissioners that it be denied was approved by a vote of six to two.
The recommendation will go before the county commissioners Aug. 20 at 9:30 a.m. in the county courthouse, Warsaw, for final approval.
When Overman presented his petition, he said he bought the property at auction so he could donate one acre to Quaker Haven and sell the remaining five acres. Richard told Overman that he could do that without rezoning the property.
Overman's petition was continued to May to allow Overman to work with Richard on what he wanted to accomplish without rezoning the property.
Members of the plan commission are chairman Vic Virgil, Charlie Haffner, Kelly Easterday, Kevin McSherry, Don Arms, Dick Kemper, Hal Strong, Larry Coplen and Norm Lovell, who was not present at Wednesday's meeting. The plan commission meets at 1 p.m. in the Justice Building meeting room, Warsaw, on the first Wednesday of every month.
• Appeals Court ruling for county sets state precedent
A case appealed to the Court of Appeals of Indiana by the Kosciusko County Area Plan Commission now sets a precedent for Indiana.
"They upheld us," said plan commission director Dan Richard Wednesday at the plan commission meeting. "We win." He said it was a case the plan commission believed strongly enough to appeal.
According to the court findings, 1st Source Bank was the owner of real estate zoned for residential purposes on the east side of Packerton Road in Kosciusko County. 1st Source Bank applied to the plan commission to receive preliminary plat approval for a proposed subdivision of the property. The plat provided for a six-lot development with six private drives with access onto Packerton Road.
The plan commission rejected the plat for several reasons, including too many access points onto Packerton Road, reliance on private drives rather than an interior road and drainage issues. The plan commission recommended the plat be redesigned with an interior road, allowing at most two access points onto Packerton Road.
1st Source made some minor changes to the plat and filed its second request, but the plan commission denied the preliminary plat again, finding that the plat did not conform to the county's subdivision control ordinance. The reasons were the same, and the plan commission instructed 1st Source to revise the plat so there would be only one or two access points onto Packerton Road via an interior road.
1st Source then filed a petition with Kosciusko Superior Court 1 Judge Duane G. Huffer to overturn the plan commission's decision to deny the plat approval. The trial court held a hearing and reversed the plan commission's decision. The trial court mandated the plan commission approve the subdivision plat as proposed with only two points of access onto Packerton Road, but no interior roadways.
The plan commission appealed that decision to the Indiana Court of Appeals.
In reversing the plan commission decision, Huffer found that a section of the subdivision control ordinance was not valid because it failed to provide concrete standards and due process. Having found that all of the other requirements under the control ordinances were met, Huffer ordered the plan commission to approve 1st Source's proposed subdivision plat. The plan commission contended Huffer erred in finding the section was invalid, and the Court of Appeals agreed with the plan commission. The appeals court reversed the decision and remanded the trial court's decision.
In the appeals court's standard of review, the judges noted that at the outset, 1st Source failed to file an appellee's brief and therefore, the court adhered to a less stringent standard of review. The plan commission needed only to demonstrate "prima facie error" to obtain a reversal.
An ordinance, the court said, should be interpreted to uphold its validity whenever possible. To be valid, however, an ordinance must be precise, definite and certain in expression. Additionally, standards required by an ordinance must be written with sufficient precision to give fair warning as to what the plan commission will consider in making its decision.
The court upheld Kosciusko County's ordinance, finding it was sufficiently precise because it listed several things that would be considered when the plan commission decided on a plat application.
The case is Kosciusko County Area Plan Commission v. 1st Source Bank. No. 43A05-0308-CV-413. [[In-content Ad]]
• Ordinance changes to be sent to commissioners
Amendments to the county's zoning and subdivision control ordinances will be forwarded on to the Kosciusko County Commissioners.
Wednesday, the Kosciusko County Area Plan Commission unanimously approved recommending the changes.
Under permitted uses, "apartments" was reworded to "multi-family dwellings."
Parking spaces required for multi-family uses are proposed at four per dwelling unit, including covered or enclosed spaces.
The definition of a multi-family dwelling is a residential building designed for three or more families, with the number of families in residence not exceeding the number of dwelling units provided. An amendment to the definition is that a multi-family dwelling may include but is not limited to apartments or condominiums.
For signs, the proposed ordinance amendments will require that all signs listed under the ordinance shall obtain an approved sign permit prior to placement or construction. To obtain the permit, a completed sign permit accompanied by a site plan must be provided to the county plan commission. For signs on state regulated rights of way, state permits must be obtained and presented prior to the issuance of any county permits.
No sign may be closer than 35 feet to an intersection.
For communication towers, all towers, when required under federal law to be lit, shall be lit in such a fashion that the lighting is non-obtrusive, which may include but is not limited to alternating lighting: white light at day, red light at night.
Under fees, the ordinance already says no fee is charged if an application is made and the improvement location permit/occupancy permit/sign is issued before the start of construction occupancy. The proposed amendments states, "No fee shall be charged if an application is made and improvement location permit/occupancy permit/sign permit is issued to the current property owner subsequent to a prior property owner failing to obtain the proper permits."
Under Article 2 of the subdivision control ordinance, a division of land into parcels or tracts of 20 acres or more that does not involve any new streets or easements of access is not considered a subdivision and is exempt from the ordinance requirements. The proposed amendments added that the road right of way shall be included into the calculations as surveyed.
Final plats shall conform substantially to the preliminary plat as approved. The revised ordinance adds that in the instance a guarantee is posted, all improvements must be completed within three years.
Changes to the regulations regarding subdivision entrance signs were considered but will not be a part of the amendments to go to the commissioners. Plan commission member Larry Coplen had several questions regarding the changes the plan commission will review.
For more information, copies of the ordinance changes are available at the plan commission office in the county courthouse, Warsaw, or online: www.kcgov.com
• Commission denies Newcomer petition
Rezoning decisions on one piece of property later can affect the Kosciusko County Area Plan Commission's discussions on rezonings of nearby properties.
A case earlier this year had such an effect on two petitions before the plan commission Wednesday.
In January, Donald Longacre petitioned to rezone approximately 6 acres from an agricultural district to either an agricultural II or a residential district. The property is on the south side of CR 900N and west of CR 500E in Turkey Creek Township. The plan commission voted to recommend to the county commissioners that it be rezoned agricultural II.
On rezonings, the plan commission only is a recommending board to the commissioners. But after hearing the petition, the commissioners voted to rezone the property residential.
Wednesday, the plan commission heard a petition by Kyle Newcomer to rezone approximately 20 acres from an agricultural district to either an agricultural II or a residential district. His property is on the west side of CR 500E and 654 feet south of CR 900N in Turkey Creek Township.
Also, Earl Overman petitioned to rezone 6.61 acres from an agricultural district to a residential district. The property is on the west side of CR 500E and zero feet south of CR 900N in Turkey Creek Township.
Attorney Steve Snyder, representing Newcomer, said Newcomer wants to build his house on the back 10 acres and doesn't need the other 10 acres. He wants to rezone the property so he can sell off two five-acre lots. Snyder said he was comfortable that the commissioners have decided the area will be residential with their previous decision on Longacre's petition. No good farm land is being taking out of production.
Remonstrator Steve Anderson said he is concerned that there would be more than three homes on the 20 acres and is worried about the environmental impacts. The back part of the land is tillable ground, he said. He heard a rumor the property will have 17 houses on it and he was against that.
Roy Caywood, remonstrator, said if it's rezoned residential, he is afraid his tenants on his farm ground would lose the right to farm there because homeowners would complain of the farm smells. He said he and his wife are retired and they need the money.
Plan commission director Dan Richard said if it's rezoned, the plat would require an agriculture disclaimer that homeowners on the property recognize the farm ground was there first and could not complain about the farming business.
Caywood said that would help but he'd still like it as it is.
Snyder, in his rebuttal, said if the Andersons are so concerned about the property, it had been up for auction recently, they could have bought it then. The commissioners, he repeated, made it obvious this area would be residential. And he repeated that Newcomer does not plan a high density subdivision.
"The highest and best use is residential," said Snyder of Newcomer's property.
Plan commission member Don Arms made a motion to approve the property as agricultural II. Hal Strong seconded the motion but the motion received only three votes. The nine-member board requires five votes to approve a motion.
Kevin McSherry, board member, then made a motion to rezone it to residential. The motion died for a lack of a second. McSherry then made a motion to deny both rezonings. Charlie Haffner seconded the motion and the motion to recommend to the county commissioners that it be denied was approved by a vote of six to two.
The recommendation will go before the county commissioners Aug. 20 at 9:30 a.m. in the county courthouse, Warsaw, for final approval.
When Overman presented his petition, he said he bought the property at auction so he could donate one acre to Quaker Haven and sell the remaining five acres. Richard told Overman that he could do that without rezoning the property.
Overman's petition was continued to May to allow Overman to work with Richard on what he wanted to accomplish without rezoning the property.
Members of the plan commission are chairman Vic Virgil, Charlie Haffner, Kelly Easterday, Kevin McSherry, Don Arms, Dick Kemper, Hal Strong, Larry Coplen and Norm Lovell, who was not present at Wednesday's meeting. The plan commission meets at 1 p.m. in the Justice Building meeting room, Warsaw, on the first Wednesday of every month.
• Appeals Court ruling for county sets state precedent
A case appealed to the Court of Appeals of Indiana by the Kosciusko County Area Plan Commission now sets a precedent for Indiana.
"They upheld us," said plan commission director Dan Richard Wednesday at the plan commission meeting. "We win." He said it was a case the plan commission believed strongly enough to appeal.
According to the court findings, 1st Source Bank was the owner of real estate zoned for residential purposes on the east side of Packerton Road in Kosciusko County. 1st Source Bank applied to the plan commission to receive preliminary plat approval for a proposed subdivision of the property. The plat provided for a six-lot development with six private drives with access onto Packerton Road.
The plan commission rejected the plat for several reasons, including too many access points onto Packerton Road, reliance on private drives rather than an interior road and drainage issues. The plan commission recommended the plat be redesigned with an interior road, allowing at most two access points onto Packerton Road.
1st Source made some minor changes to the plat and filed its second request, but the plan commission denied the preliminary plat again, finding that the plat did not conform to the county's subdivision control ordinance. The reasons were the same, and the plan commission instructed 1st Source to revise the plat so there would be only one or two access points onto Packerton Road via an interior road.
1st Source then filed a petition with Kosciusko Superior Court 1 Judge Duane G. Huffer to overturn the plan commission's decision to deny the plat approval. The trial court held a hearing and reversed the plan commission's decision. The trial court mandated the plan commission approve the subdivision plat as proposed with only two points of access onto Packerton Road, but no interior roadways.
The plan commission appealed that decision to the Indiana Court of Appeals.
In reversing the plan commission decision, Huffer found that a section of the subdivision control ordinance was not valid because it failed to provide concrete standards and due process. Having found that all of the other requirements under the control ordinances were met, Huffer ordered the plan commission to approve 1st Source's proposed subdivision plat. The plan commission contended Huffer erred in finding the section was invalid, and the Court of Appeals agreed with the plan commission. The appeals court reversed the decision and remanded the trial court's decision.
In the appeals court's standard of review, the judges noted that at the outset, 1st Source failed to file an appellee's brief and therefore, the court adhered to a less stringent standard of review. The plan commission needed only to demonstrate "prima facie error" to obtain a reversal.
An ordinance, the court said, should be interpreted to uphold its validity whenever possible. To be valid, however, an ordinance must be precise, definite and certain in expression. Additionally, standards required by an ordinance must be written with sufficient precision to give fair warning as to what the plan commission will consider in making its decision.
The court upheld Kosciusko County's ordinance, finding it was sufficiently precise because it listed several things that would be considered when the plan commission decided on a plat application.
The case is Kosciusko County Area Plan Commission v. 1st Source Bank. No. 43A05-0308-CV-413. [[In-content Ad]]