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HomeMy WebLinkAbout2016-OR-26 FAILED FOR LACK OF MAJORITYSTATE OF INDIANA ROLL CALL - 3 -44 -4 - LJ Woe _ nl o Zftw6j - yes Jin No l�I�ple.5 )� 69%i r A) C -r7 - 1JD 0 0e n -1.10 BEFORE THE JEFFERSONVILLE COMMON COUNCIL ""L"!" - fl y Sftmuel - cS ORDINANCE 2016 -OR- ��r;�uez- yes AN ORDINANCE CHANGING THE ZONING MAP DESIGNATION OF A CERTAIN TRACT OF PROPERTY LOCATED AT 1611 E TENTH STREET AND FULLY DESCRIBED IN ATTACHED EXHIBIT A FROM C2 TO IS Whereas, Greater Clark County Schools Corporation filed a petition before the Jeffersonville Plan Commission to change the zoning map designation of the real property located at 1611 E Tenth Street and fully described in the attached Exhibit A from C2: Medium to Large Scale General Commercial to IS: Institutional and, Whereas, on March 22, 2016 the Jeffersonville Plan Commission has certified its unfavorable recommendation of the enactment of this proposed zoning map designation change by ordinance of this Common Council; and, Whereas, this matter is now before the Common Council at its regular meeting after certification of the proposed change of zoning map designation pursuant to the provisions of I.C. 36-7-4-608(f)(1); and, Whereas, this Common Council has timely posted notice of its intent to consider the proposed change of zoning map designation at the regular meeting scheduled for April 18, 2016; and, Whereas, all interested persons having been given an opportunity to appear before this Common Council and be heard regarding this matter as required by law. Now, THEREFORE, BE IT ORDAINED by the Common Council of the City of Jeffersonville, Indiana, that the zoning designation of the real property located at 1611 E Tenth Street and fully described in the attached Exhibit A is hereby changed from C2: Medium to Large Scale General Commercial to IS -Institutional. IT IS FURTHER ORDAINED that the zoning map of the City of Jeffersonville shall be amended to include such change. This ordinance shall be in full force and effect upon its adoption. SO ORDAINED this day of , 2016. STATE OF INDIANA BEFORE THE JEFFERSONVILLE PLAN COMMISSION IN RE THE APPLICATION OF Greater Clark County Schools Corporation (GCCSC) TO REZONE A CERTAIN TRACT 1611 E Tenth Street FROM C2 (Medium to Large Scale General Commercial) to IS (Instituti 2TIFICATION OF E Whereas, GCCSC filed a petition before the Jeffersonville Plan Commission to change the zoning designation of the property described in attached Exhibit A (the "Property"), from C2 to Is ; and, Whereas, after proper notice by publication, the Jeffersonville Plan Commission held a public hearing on the petition on March 22, 2016 ; and, Whereas, at the conclusion of the hearing the Jeffersonville Plan Commission voted by a majority vote of its entire membership to favorably/unfavorably/not recommend the proposed change of zoning designation of the Property to the Jeffersonville Common Council. IT IS THEREFORE CERTIFIED that on March 22, 2016 , the Jeffersonville Plan Commission u.,,CQ, ,,hL& rc d nota that the Jeffersonville Common Council enact by ordinance the proposed zoning designation change of the property from C2 to IS as requested in the petition of GCCSC So certified this 22 day of March . 2016 wf'" I �twpffi � rn- Chairman GST o� STAFF REPORT Department of Planning & Zoning — Plan Commission Rso�' Case Number: PC -16-21 Petitioner: Greater Clark County Schools Location: 1611 E Tenth Street Request: Rezoning Proposed Use: Bus Depot Zoning: C2 (Medium to Large Scale General Commercial) to IS (Institutional) Council District: 2 -Ed Zastawny Date: March 22, 2016 Rezoning Request The applicant is requesting a zoning change for property located at 1611 E Tenth Street. The property is currently zoned C2 and the requested zoning is IS. Zoning Change Procedure The Jeffersonville Zoning Ordinance and Indiana State Statute IC 36-7-4-603 outlines that the following should be considered when the Plan Commission is reviewing a Rezoning Request: ■ The Comprehensive Plan; ■ Current conditions and character of structures and uses in each district; ■ The most desirable use for which the land in each district is adapted; ■ The conservation of property values throughout the jurisdiction; and ■ Responsible development and growth. Figure 1: Site Location Page 1 of 6 PC -16-21 GCCS Site 1 Rezoning Comprehensive Plan and Planning District Legend Figure 2: Future Land Use Plan Roads Mixed -Use This use blends a combination of residential, commercial, cultural, institutional, or industrial uses, or allows solely commercial uses. It can be one building, an urban, suburban, or village development. The blend should be physically integrated and functionally related to create a center or community. This use typically creates a greater variety in housing, reduced distances between housing, workplaces and amenities, more compact development, stronger neighborhood character, and should be pedestrian and bicycle friendly. Page 2 of 6 PC -16-21 GCCS Site 1 Rezoning Public/institutional - Vacant/Agncultural ® Recreation/Open Space - Light Industrial - Single Family Residential Figure 2: Future Land Use Plan Roads Mixed -Use This use blends a combination of residential, commercial, cultural, institutional, or industrial uses, or allows solely commercial uses. It can be one building, an urban, suburban, or village development. The blend should be physically integrated and functionally related to create a center or community. This use typically creates a greater variety in housing, reduced distances between housing, workplaces and amenities, more compact development, stronger neighborhood character, and should be pedestrian and bicycle friendly. Page 2 of 6 PC -16-21 GCCS Site 1 Rezoning Multi -Family Residential - Mixed -Use - Heavy Industrial - Commercial - Business Park/industrial City Limits Figure 2: Future Land Use Plan Roads Mixed -Use This use blends a combination of residential, commercial, cultural, institutional, or industrial uses, or allows solely commercial uses. It can be one building, an urban, suburban, or village development. The blend should be physically integrated and functionally related to create a center or community. This use typically creates a greater variety in housing, reduced distances between housing, workplaces and amenities, more compact development, stronger neighborhood character, and should be pedestrian and bicycle friendly. Page 2 of 6 PC -16-21 GCCS Site 1 Rezoning Figure 3: Planning District WIW !nd .__ _. Primary Gateways Suburban Neighborhood Traditional Neighborhood! Workpla ce Suburban Workplace Suburban Marketplace Traditional Marketplace Regional Marketplace Center Downtown Historic District Traditional Marketplace Marketplace corridors play an important role in providing the shopping needs of a community. Traditional Marketplace Corridors are along major roadways where the pattern of development is distinguished by a mixture of low to medium intensity uses such as neighborhood -serving shops, small specialty shops, restaurants, and services. The Traditional Marketplace Corridor was expanded along 10th Street to encourage a form that is more pedestrian oriented with development that has little or no setbacks. The uses in Traditional Marketplace Corridors frequently have apartments or offices on the second story. Buildings generally have little or no setback, roughly uniform heights and a compatible building style. Buildings are oriented toward the street and typically have 2-4 stories. New development and redevelopment should respect the predominant rhythm, massing and spacing of existing buildings. Page 3 of 6 PC -16-21 GCCS Site 1 Rezoning Zoning Figure 4: Zoning The property is currently zoned C2. The property to the north and south is zoned C2. The property to the east is zoned C1 and to the west is R2. The property is also part of the Commercial Corridor Overlay District. Attached Plans & Documents: 1. C2 District Intent 2. IS District Intent Page 4 of 6 PC -16-21 GCCS Site 1 Rezoning "C2" District 4.15 "C2" District Intent, Permitted Uses, and Special Exception Uses District Intent -I ine cz' tmedlum to Large Scale General Commercial) District is intended to provide a land use category for most large scale general business uses. The provisions that regulate this land use district should not overly restrict normal business practices. This district can be used adjacent to all other commercial districts and the "R3," •'M1" and "M2" residential districts. However, buffering should be provided between this district and any residential district. Jeffersonville's Plan Commission and Board of Zoning Appeals should strive to use this district with the "C1" District to encourage a strong and stable area for commerce. The Plan Commission and Board of Zoning Appeals should not encourage "strip development", rather development in clusters which share resources and minimize the cost of public utilities and services. The Plan Commission and Board of Zoning Appeals should also strive to minimize lighting, un -landscaped large parking lots, parking lots fronting major streets, and traffic conflicts in the "C2" District. 4-t6 Permitted Uses •hospital --- Business: Auto Sales/Services • auto body repair shop • auto parts store • auto repair shop ,auto sales (open air, with showroom, ful service mechanical with or without body shop) • auto service (tire or muffler shop) Business: Food Sales/Service • convenience store (with gas pumps) -drive-in restaurant grocery/supermarket restaurant Business: General Business hotel motel plant nursery ,wholesale business Business: Office/Professional •bank/credit union ,bank machine/ATM *drive-thru bank machine/ATM ,drive-thru bank/credit union • office complex medical/dental clinic Business: Personal Service barber/beauty shop drive-thru dry cleaning service -dry cleaning service • fingernail salon • fitness center/gym health spa tanning salon Business: Recreation banquet hall • bowling alley *theater, indoor (not adult entertainment) -video store Business: Retail antique shop apparel shop -department store -drug store electrical supplies fabric shop • floor coverings flower shop furniture store ,enclosed shopping mall • gift shop hardware store heating & cooling sales/service ce -jewelry store • liquor sales music store news dealer/bookstore (not adult entertainment) office supplies •paint store Permitted Uses -plumbing supplies sporting goods store • variety store Miscellaneous accessory uses special Exception Uses Business: Auto Sales/Services auto sales (open air, limited mechanical services or body shop) • auto sales (open air, no services) • auto service station • auto wash (automatic and self) • oil change service (enclosed) recreational vehicle sales (motor home sales) Business: Food Sales/Service *convenience store (with gas pumps) Business: General Business • airport • boat sales/service • funeral home or mortuary helipad or heliport light rail station ,sign painting/fabrication mini -storage facility (mini warehouse) • motor bus station railroad station Business: Recreation -ball fields • bar/night club (not adult entertainment) • theater, outdoor (not adult entertainment) Business: Retail • lumber yard • satellite dish sales/service • kennel (commercial) Communication/Utilities -public wells radio/TV station telecommunication facility Jeffersonville Zoning Ordinance Page 5 of 6 PC -16-21 GCCS Site 1 Rezoning "IS" District 4.1 "IS" District Intent, Permitted Uses, and Special Exception Uses is intended to provide a land use category for institutionally owned lands, including state, county, and city facilities. The IS district is also intended for social service oriented uses; and similar nonprofit quasi -public institutions where the use is for public purpose and is anticipated to remain so permanently. The Plan Commission and Board of Zoning Appeals should encourage institutional structures and uses to set a standard for development throughout the planning jurisdiction. • community center -church, temple or mosque government building government office library museum police/fire station post office public/private parking area • school • trade or business school Business: General Business • funeral home or mortuary Special Exception Uses Residential *child care institution (children's home) nursing home residential facility for the developmentally disabled (large) • residential facility for the mentally ill Institutional/Public Facilities cemetery or crematorium drug/alcohol rehabilitation clinic hospital • public park/recreation center recycling collection point Business: General Business airport • helipad or heliport light rail station motor -bus station • railroad station Communication/Utilities • public well • sewage treatment plant -telecommunication facility -telephone exchange • utility substation 4-2 Jeffersonville Zoning Ordinance Page 6 of 6 PC -16-21 GCCS Site 1 Rezoning CITY OF JEFFERSONVILLE DEPARTMENT OF LAW Les Merkley, Corporation Counsel/Director of Legal Affairs 812-285-6493 office 812-285-6403 fax www.cityofjeff.net Jeffersonville City Hall 500 Quartermaster Court, Suite 250 Jeffersonville, Indiana 47130 BEFORE THE CITY COUNCIL OF JEFFERSONVILLE, INDIANA IN THE MATTER OF THE ORDINANCE CHANGING THE ZONING MAP DESIGNATION OF A CERTAIN TRACT OF PROPERTY LOCATED AT 1611 E TENTH STREET AND FULLY DESCRIBED IN ATTACHED EXHIBIT A FROM C2 TO IS NOTICE OF HEARING ON ORDINANCE CHANGING THE ZONING MAP DESIGNATION OF A CERTAIN TRACT OF PROPERTY LOCATED AT 1611 E TENTH STREET AND FULLY DESCRIBED IN ATTACHED EXHIBIT A FROM C2 TO IS Notice is hereby given that the City of Jeffersonville has filed Ordinance with the Jeffersonville City Council, Jeffersonville, Indiana asking for a change in the zoning map designation of a certain tract of property located at 1611 E Tenth Street and fully described in Exhibit A from C2 -Medium to Large Scale General Commercial to IS - Institutional. A public hearing will be held on April 18, 2016 at 7:00 p.m. in the City Council Chambers, 1St floor, City Hall, 500 Quartermaster Court, Room 101, Jeffersonville, Indiana at which time and place all interested persons will be heard in reference to the matters set out in said ordinance. f Les Merkley Corporation Counsel Jeffersonville City Hall 500 Quartermaster Court Jeffersonville, IN 47130 812)285-6423 An equal opportunity employer. Common Council Of The City of Jeffersonville, Indiana vnTFn FnR• Ma O nt A ST:, Vicki Conlin City Clerk Presented to me as Clerk to the Mayor of said City of Jeffersonville this day of 2016. Vicki Conlin City Clerk This Ordinance approved and signed by me this day of , 2016. Mike Moore, Mayor Prepared by: Les Merkley Corporate Counsel April 14, 2016 Alan M. Applegate a!qpplegate@afpfirm.com Jeffersonville City Council Members C/o Ms. Vicki Conlin, City Clerk Jeffersonville City Hall 500 Quartermaster Court, Room 156 Jeffersonville, IN 47130 Personal Delivery Mr. R. Scott Lewis 530 E. Court Avenue Jeffersonville, IN 47130 Personal Delivery Re: Petition to change the zoning map designation of 1611-1613 and 1620 East Tenth Street, Jeffersonville, Indiana. Dear City Council Members, Ms. Conlin, and Mr. Lewis: I represent the Greater Clark County School Corporation (the "School Corporation") regarding the above -referenced matter. I will be addressing the City Council regarding the School Corporation's pending rezoning request at its meeting on April 18, 2016. I write now, however, to identify what I believe to be several crucial legal points pertaining to this matter, including without limitation, (i) that the uses in which the School Corporation proposes to engage at the site are already expressly permitted within its current zoning classification of "C2 (Medium to Large Scale General Commercial)", thereby eliminating the necessity of rezoning to "IS (Institutional)", and (ii) even were such not the case, the School Corporation is legally entitled to the weighing of its public interest in providing safe and efficient bus transportation to its students as compared to the City's interest in enforcement of the existing land use regulations (as opposed to those which might be adopted during the pendency of the moratorium on new auto -related uses within the Tenth Street corridor). These points are more specifically detailed and supported by applicable legal authority as follows: I. THE "C2" DISTRICT AND PRIOR ZONING APPROVAL EXPRESSLY ALLOW ALL OF THE SCHOOL CORPORATION'S INTENDED USES. The School Corporation's pending rezoning and development plan applications were, of necessity, filed within a period of days following the announced intent of the Plan Commission and the City Council to institute a six (6) month moratorium on new auto -related uses in the Tenth Street corridor. This firm was not involved in prior zoning applications for this property in 2005 and 2012, and quite Applegate Fifer Pulliam LLC 428 Meigs Avenue, Jeffersonville, IN 47130 812.284.9499 812.282.7199 fax www.afpfirm.com Jeffersonville City Council Members c% Ms. Vicki Conlin, City Clerk Mr. R. Scott Lewis April 14, 2016 Page 2 of 11 frankly we lacked adequate time to determine the details of exactly what zoning classifications, variances, or other entitlements had previously been applied for and granted. During the pendency of these proceedings, we have formed an opinion that all of the School Corporation's intended uses are expressly permitted within the "C2" district, and that rezoning to the "IS" district is not required for the School Corporation to engage in such uses. As we recognize our opinion is contrary to that of the Planning & Zoning Department, and pursuant to case authority cited below, we also believe that it nevertheless remains incumbent on the School Corporation to pursue the pending rezoning approval before seeking any judicial review of any denial. Section 4.15 of the Zoning Ordinance establishes permitted uses by right in the "C2" district that include the following: Business: Auto Sales/Services • auto body repair shop i • auto repair shop • auto sales (open air, with showroom, full service mechanical with or without body shop)3 • auto service (tire or muffler shop)4 ' Section 14.2 of the Zoning Ordinance defines "Auto Body Repair Shop" as "[a]ny building or premesis [sic] for the major or minor repair or rebuilding of body, frame, or paint. This does not include those services typically performed by mechanical repair shops, except minor mechanical repairs will be allowed if done in conjunction with body repair." 2 Section 14.2 defines "Auto Repair Shop" as "[a]ny building or premesis [sic] for major or minor repair or rebuilding of electronic systems or mechanical drivelines of motor vehicles, both private and commercial. This does not include those services typically performed by auto body repair shops, except minor body work or paint may be done in conjunction with repair of mechanical or electronic systems." s Section 14.2 defines "Auto Sales (With Showroom, Open Air, Full Service Mechanical, With or Without Body Shop" as "[a]ny building or premesis [sic] for the sale of new or pre -owned vehicles, including light and medium trucks, motorcycles, and recreational vehicles. The service facility shall offer major and minor repairs to vehicles sold or to individuals seeking service only. This would also include a warranty repair center." ' Section 14.2 defines "Auto Service (Tire or Muffler Shop)" as "[a]ny building or premesis [sic] for the quick lubrication and oil change as well as the removal and installation of brakes, mufflers and tires, and related quick service. This is not to normally be used for lengthy repairs, but for tasks that can be accomplished in brief periods where individual customers would normally wait for the service to be provided. Jeffersonville City Council Members c% Ms. Vicki Conlin, City Clerk Mr. R. Scott Lewis April 14, 2016 Page 3 of 11 Miscellaneous • accessory uses The "C2" district further permits "auto sales (open air, limited mechanical services or body shop"' and "auto services (open air, no services),, ,7 subject to the grant of a special exception by the Board of Zoning Appeals. In PC -05-29 a development plan was approved for 1611-1613 E. Tenth Street that permitted an auto sales use generally,$ with waiver of development requirements allowing an eight (8) foot perimeter fence and excusing compliance with otherwise applicable landscaping and maximum lot coverage requirements. In PC -12-23 and BZA-12-30, a special exception permit for 1620 E. Tenth Street was granted to permit use as "auto sales (open air, no services)", with waiver of development plan requirements allowing an eight (8) foot perimeter fence and vehicle storage, and excusing compliance with otherwise applicable landscaping, maximum lot coverage, and central feature or community space requirements. The School Corporation does not at present seek to construct any new buildings or change the footprint of any existing buildings on the property, but instead intends to utilize the subject property for the following uses: 5 The term "Accessory Uses" is not defined in the Zoning Ordinance but the related concept of "Accessory Building or Structure" is defined in pertinent part at Section 14.2 as: "A building or structure which: • Is subordinate to a primary building or structure in area, intent, and/or purpose, • Contributes to the comfort, convenience, or necessity of occupants of the primary building, structure, or principal use, • Does not alter or change the character of the premises, • Is located on the same zoning lot as the primary building, structure, or use, • Conforms to the setback, height, bulk, lot coverage, and other requirements of this Ordinance unless otherwise provided for by this Ordinance ...". 6 Section 14.2 defines "Auto Sales (Open Air, Limited Mechanical Services or Body Shop)" as "[a]ny building or premesis [sic] for the sale of primarily pre -owned vehicles and light trucks or recreational vehicles conducted with a service facility for light maintenance and repairs." Section 14.2 defines "Auto Sales (No Services)" as "[a]ny building or premesis [sic] for the sale of primarily pre- owned vehicles and light trucks conducted with no showroom or mechanical repair facilities for consumer automobile maintenance and repair." $ A subsequent amendment to the Zoning Ordinance limited by right auto sales uses in the "C2" district (i.e., without BZA grant of a special exception) to those having a showroom and full service mechanical. Jeffersonville City Council Members c% Ms. Vicki Conlin, City Clerk Mr. R. Scott Lewis April 14, 2016 Page 4 of 11 • Routine repair and maintenance of its owned school bus fleet presently consisting of eighty- three (83)buses (64 of which are currently active) within the four (4) bays of the existing 11,000 square foot building at 1611-1613 E. Tenth Street. These services include, but are not limited to, the following: o Daily pre -trip driver check of air brakes, lights, stop arm, tires, gages, and other essential equipment. If a driver finds an issue, they report it to the mechanic on duty while the bus is still on the lot. o Routine mechanic check and performance of oil changes, tire replacements, and other inspections. This is presently done by the mechanic on duty in the single bay of the existing maintenance facility. The four (4) bays of the proposed site will dramatically improve the efficiency in performing these functions, particularly as a second shift mechanic crew will be added to perform preventative maintenance. o The Indiana State Police conduct one (1) or two (2) annual inspections of all buses in consultation with the School Corporation mechanics, which inspections are also performed in the shop. o If a bus is being maintained on back-up status, before being returned to daily transportation use it will be subject to an annual inspection, as well as an additional secondary inspection if older than twelve (12) years. As these buses continue to be used on a weekly basis, however, they remain subject to the routine pre -trip inspections provided by drivers and/or mechanics each time they are driven. • The owned fleet vehicles will be parked on the premises as an accessory use9 to enable the performance of all such required routine repair and maintenance during periods in which they are not in use transporting students. An accessory use has been defined as "a subordinate use, customarily incident to the principal use, and so necessary or commonly to be expected in conjunction therewith that it cannot be supposed that an ordinance was intended to prevent it." 30 Ind. Law Encyc. Zoning § 42. Indiana recognizes the doctrine of accessory use, under which the right to establish and maintain a commercial or nonresidential use normally includes the right to add accessory uses which are secondary to the permitted one. Flying J., Inc. v. City of New Haven Bd. of Zoning Appeals, 855 N.E.2d 1035 (Ind. Ct. App. 2006), trans. denied (holding that overnight parking of recreational vehicles and trucks was an accessory use to a travel plaza). Jeffersonville City Council Members c% Ms. Vicki Conlin, City Clerk Mr. R. Scott Lewis April 14, 2016 Page 5 of 11 • Routine repair and maintenance of maintenance trucks and equipment. • Excess vehicles in the owned fleet (both bus and non -bus) will be displayed and offered for sale to other school corporations or the public. As noted above, it is our opinion that the all of the School Corporation's intended uses are presently permitted on the subject property (either pursuant to the express provisions of the Zoning Ordinance or by the grant of prior zoning approvals that run with the property). In fact, the only legal rationale by which rezoning to "IS" might have been required is the inclusion of "public/private parking area" as a permitted use in Section 4.1. However, this term is defined in Section 14.2 as "[a] group of parking spaces in an open area not including any part of a street or alley, designed or used for temporary parking of motor vehicles." (Emphasis added). Based on the plain and ordinary meaning of the words used in this definition, it is clear that as long as the bus parking as an accessory use is conducted within the fenced (i.e., non -open) areas of the property, a rezoning to permit this enumerated "IS" district use is not required. The School Corporation is fully committed to limiting all bus parking within the fenced areas on the site, and agrees to tender a voluntary written commitment to this effect in accordance with the provisions of Ind. Code § 36-7-4-1015. IL THE PLAN DIRECTOR HAS DETERMINED THAT REZONING TO "IS", COMBINED WITH ADDITIONAL ZONING APPROVALS, IS REQUIRED TO PERMIT THE SCHOOL CORPORATION'S INTENDED USE. The discussion in Section I above obviously begs the question of why the School Corporation is proceeding with this rezoning request given its position that its intended use of the property is legally permitted in the "C2" district. The answer to this question is threefold: First, any purchaser of property in Indiana will want to assure itself that the property is properly zoned for its intended use. Given, the consideration and purpose of the moratorium, this firm determined that a letter from the Plan Commission Director confirming authorizing the prospective use would not be obtainable. Therefore, we counseled the School Corporation to seek a rezoning. Second, while the ownership of property does not classify its use, the firm counseled the School Corporation to seek Intuitional District classification of the Property in keeping with the public use nature of the School Corporation. We advised that as part of the rezoning request, the School Corporation could effectuate a development plan that reduced the visual impact of the School Corporation's proposed use and would be in keeping with the prospective improvements to Tenth Street. In other words, we counseled that it was the right thing to do. Jeffersonville City Council Members c% Ms. Vicki Conlin, City Clerk Mr. R. Scott Lewis April 14, 2016 Page 6 of 11 The third reason for the rezoning request arises from the judicial opinion in City of Crown Point v. Lake County, 510 N.E.2d 684, 690 (Ind. 1987), in which the Indiana Supreme Court rejected a county's contention that it was immune from a city's zoning regulation of its buildings within the city, but revised the standard of judicial review of denial for the rezoning requested by a governmental entity as an "intruding entity". The Supreme Court held that if the governmental entity is not statutorily or administratively immune from the zoning ordinance, then the governmental entity must seek rezoning of the property before a court will review any denial of the application. Here, the Planning Director has issued a written determination that even if the rezoning to "IS" is granted by ordinance, the School Corporation will still need to obtain a use variance to permit bus storage.10 By implication, the Plan Director affirmed our advice to the School Corporation that his position would be that the School Corporation's intended uses are not permitted as a matter of right in the "C2" district. In accordance with the opinion in Crown Point, it is therefore incumbent on the School Corporation to proceed with its pending rezoning application before seeking judicial review of any denial. The extent to which the Crown Point case altered the legal standard by which the School Corporation's rezoning petition should be considered is worthy of further discussion as well. Ind. Code § 36-7-4-603 provides as follows: In preparing and considering proposals under the 600 series, the plan commission and the legislative body shall pay reasonable regard to: (1) the comprehensive plan; (2) current conditions and the character of current structures and uses in each district; (3) the most desirable use for which the land in each district is adapted; (4) the conservation of property values throughout the jurisdiction; and �0 The School Corporation has appealed this determination to the BZA in accordance with the provisions of Ind. Code § 36-7-4-918.2 and Section 12.3(F) of the Zoning Ordinance as courts have held that the parking of vehicles for periodic short duration does not constitute storage. Mergenthaler v. State, 293 A.2d 287 (Del. 1972). This appeal has been tabled by agreement of the parties pending determination of the School Corporation's rezoning request. Jeffersonville City Council Members c% Ms. Vicki Conlin, City Clerk Mr. R. Scott Lewis April 14, 2016 Page 7 of 11 (5) responsible development and growth. Contrary to Mr. Pruitt's assertions during his staff report to the Plan Commission, this statute does not create a checklist for whether a requested rezoning can be approved. Rather, where the applicant is a non-governmental entity, Indiana law has been consistent that courts, will review decisions of local zoning boards to determine if they are arbitrary, capricious or patently unreasonable. Ash v. Rush County Board of Zoning Appeals, 464 N.E.2d 347 (Ind. Ct. App. 1984). Courts will affirm the zoning decision of a legislative body in non-governmental zoning applications where the administrative record demonstrates the existence of a rational basis for the decision based on consideration of these statutory factors. This result has been obtained even where a municipality denied a requested rezoning to permit commercial use where its comprehensive plan called for the area land use to be commercial. Board of Com'rs of Cnty. of Vanderburgh v. Three 1 Properties, 787 N.E.2d 967, 977-79 (Ind. Ct. App. 2003). Conversely, a legislative body's rezoning from residential to retail was affirmed despite conflicting with the provisions of the comprehensive plan. Ogden v. Premier Properties, USA, Inc., 755 N.E.2d 661, 670-72 (Ind. Ct. App. 2001). However, in situations where the petitioner is a governmental entity like the School Corporation, the Indiana Supreme Court mandates that a much less deferential standard be applied by courts on judicial review of a zoning denial. In Crown Point, the Supreme Court held that a municipality's denial of a rezoning sought by a county be subject to a public interest balancing test on judicial review by holding as follows: The essential purpose of zoning, "to rationally coordinate land -use planning to promote orderly development and preservation of property values," City of Fargo, 256 N. W.2d at 697, generally can best be furthered by local zoning authorities which have been established to accomplish that very purpose. Local zoning proceedings also provide for public debate in an administrative hearing which can address the interests of all parties. However, there will be occasions when the land use plan of a community must fall before other critical government objectives. .. . Local land use decisions must be evaluated not only in terms of local need and benefit, but in light of community, area or state-wide interests as well. When a zoning authority has denied an intruding government's request for approval of a given land use, an appeal can lie to the courts, which will balance the interests to determine which must Jeffersonville City Council Members c% Ms. Vicki Conlin, City Clerk Mr. R. Scott Lewis April 14, 2016 Page 8 of 11 prevail. Factors to be considered include the propriety of the land use, such as the economic and environmental impact on the area, the kind of function or land use involved, the availability of alternative locations, and any attempts to minimize detriments to adjacent landowners, as well as a consideration of competing interests, such as the nature and scope of the intruding government unit, the essential use to the local community and the broader community, the need for the specific site as compared to the adverse impact, the social utility of the proposed use, and the possible frustration of a government function. These are the sort of decisions assigned to local executive and legislative bodies. Where their determinations are irreconcilable, the legislature has provided for a review of the zoning decision by the judiciary. (Emphasis added). Serra, 510 N.E.2d at 690-91. While the School Corporation acknowledges that it is subject to the City's zoning authority, Indiana law makes it clear that such authority cannot be applied for abusive or unreasonable interference. Town of Zionsville v. Hamilton County Airport Authority, 970 N.E.2d 185 (Ind. Ct. App. 2012), trans. denied. It cannot reasonably be argued by the City of Jeffersonville that the School Corporation does not promote the common welfare of the community as a whole. In fact, the Indiana Supreme Court has judicially recognized that schools promote the common welfare and the general public interest. See, Board of Zoning Appeals of the Town of Meridian Hills v. Schulte, 172 N.E.2d 39 (Ind. 1961). In Schulte, the Indiana Supreme Court held that a zoning board could not validly exclude church and school facilities from a residential district based merely upon evidence that property values would depreciate. Id. at 351. In order to avoid judicial determination that a rezoning denial constitutes unreasonable interference with the School Corporation's valid public use to promote safe and efficient transportation of its students, the City Council should carefully weigh the competing public interests. As new land use restrictions promoting the elimination of automotive uses within the Tenth Street corridor have yet to be promulgated, it would be a daunting task for the City Council to support a rezoning denial on this basis. Jeffersonville City Council Members c% Ms. Vicki Conlin, City Clerk Mr. R. Scott Lewis April 14, 2016 Page 9 of 11 III. THE CITY COUNCIL SHOULD CONSIDER THE PRACTICAL REALITIES IN MAKING ITS DETERMINATION OF THE REZONING REQUEST. As noted above, the property at 1611-1613 E. Tenth Street contains an 11,000 s.f. building that is approximately ten (10) years old. This building was designed for auto usage, not marketplace usage, and has at least thirty (30) remaining years of useful life. Even if the existing "C2" regulations are amended and/or the property is otherwise rezoned during the pendency of the moratorium, the existing auto sales, repair, maintenance, and accessory uses can and will continue as nonconforming uses a matter of right in accordance with the provisions of Section 10.5 of the Zoning Ordinance. Therefore, the decision pending before the City Council is not a choice between the School Corporation's proposal and the theoretical site drawing that Plan Director Pruitt presented to the Plan Commission during his staff report (which intentionally ignored the existence and value of the 11,000 s.f. building). Rather, the choice before the Council is between what the School Corporation proposes and the continuation of the uses that are presently authorized at the site (particularly as the Redevelopment Commission has to date taken no action to declare this area to be in need of redevelopment or otherwise demonstrate that the City will be taking a pro -active approach in fostering any such redevelopment). IV. NO CITY COUNCIL MEMBER HAS A CONFLICT OF INTEREST THAT LEGALLY REQUIRES THEIR ABSTENTION. Council president Matt Owen has recently been quoted as stating that one or two City Council members may abstain from voting on this rezoning request. I understand that these members may be Scott Maples (who has periodically worked in a part-time security position at the Clark County Auto Auction), and Scott Hawkins (who is employed as a teacher at Jeffersonville High School). As a final matter, I wish to address this issue to make clear for the record the School Corporation's position that neither of these members have a disqualifying conflict of interest that legally requires their abstention from participation in either discussion or voting on this matter. Ind. Code § 36-7-4-223 reads in pertinent part as follows: (b) A member of a plan commission or a legislative body is disqualified and may not participate as a member of the plan commission or legislative body in a hearing or recommendation of that commission or body concerning a legislative act as described in section 1016 of this Jeffersonville City Council Members c% Ms. Vicki Conlin, City Clerk Mr. R. Scott Lewis April 14, 2016 Page 10 of 11 chapter in which the member has a direct or indirect financial interest. The commission or body shall enter in its records the fact that its member has such a disqualification. The Indiana Court of Appeals considered this statute in concluding that a county commissioner whose wife owned a one-fifth interest in property adjacent to the property for which a zoning change was sought did not have a direct or indirect interest in the matter that barred him from voting on the proposed zoning ordinance. Perry -Worth Concerned Citizens v. Board of Com'rs. of Boone County, 723 N.E.2d 457 (Ind. Ct. App. 2000), trans. denied. Similarly, a city council member was not precluded from voting on a rezoning ordinance where her son represented the applicant. Stokes v. City of Mishawaka, 441 N.E.2d 24 (Ind. Ct. App. 1982). Dr. Melin will be glad to personally affirm at the Council meeting that neither Mr. Maples nor Mr. Hawkins have any direct or indirect financial interest in the subject property or the School Corporation's proposed acquisition and use thereof. Specifically, Mr. Maples and/or Mr. Hawkins will not receive any financial compensation or other pecuniary benefit if the requested rezoning is granted, nor will Mr. Hawkins suffer any adverse consequence to his employment if it is denied (regardless of how either member may personally vote). V. CONCLUSION. While I regret the length of this letter, it is sincerely hoped that the foregoing might assist the City Council by providing a detailed analysis of the legal principles involved the pending rezoning application, and thereby enable its primary focus at the meeting to be on the operational and public safety benefits involved in the School Corporation's efforts to utilize the dramatically superior existing facilities at the proposed site in the performance of its duty to provide safe and efficient transportation for its students. Contemporaneously with the delivery of this letter to the City Clerk's office, I will be providing a digital copy of this letter to Ms. Conlin and Mr. Lewis by e-mail, and request that it be promptly forwarded to each City Council member so that they may have an opportunity to review and consider prior to the meeting. I acknowledge that the filing of this letter with the City Clerk renders it a "public record" that is subject to review by any interested member of the public, and I hereby consent to its release on request by any such person. Jeffersonville City Council Members c% Ms. Vicki Conlin, City Clerk Mr. R. Scott Lewis April 14, 2016 Page 11 of 11 As always, your consideration of the foregoing is greatly appreciated. Sincerely, Alan M. Applate AMA/hrr Cc: Dr. Andrew Melin, GCCSC Superintendent (via e-mail) Ms. Sandra Lewis, GCCSC General Counsel (via e-mail) Mr. Leslie D. Merkley, Jeffersonville Corporation Counsel (via e-mail) Mr. Nathan Pruitt, Jeffersonville Plan Director (via e-mail)