HomeMy WebLinkAbout2005-OR-77 VETO STATE OF INDIANA
BEFORE THE JEFFERSONVILLE COMMON COUNCIL
ORDiNANCE NO. 2005-OR-77
AN ORDINANCE CHANGING THE ZONING MAP DESIGNATION OF A
CERTAIN TRACT OF PROPERTY DESCRIBED AS A ONE-ACRE TRACT
LOCATED AT 2413 UTICA PIKE.
Whereas, Thomas W. Kempf, has filed a petition before the Jeffersonville Plan
Commission to change the zoning map designation of the real property described in the
attached Exhibits from RI: Low Density Residential to M1: Limited Multifamily
Residential; and
Whereas, on November 29, 2005 the Jeffersonville Plan Commission has
certified to the Council a unfavorable recommendation concerning the proposed change
to the City's zoning map; 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 C6mmon Council has timely posted notice of its intent to consider
the proposed change of zoning map designation at the regular meeting scheduled for
December 5, 2005 at 7:30 o'clock p.m.; 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 described in the
attached Exhibits hereby changed from R1: Low Density Residential to M1: Limited
Multifamily Residential; and
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 ~V-D~-V2-Q---day of December 2005.
COMMON COUNCIL OF
THE CITY OF JEFFERSONVILLE,
By:
Robert L. Waiz, Jr.
Presiding Officer
ATTEST:
Peggy Wilder
Clerk-Treasurer
.l~resented by me as Clerk-Treasurer to the Mayor of said City of Je£fersonville
this ~ day of December 2005.
Pegg~y~v!~lder
Clerk-Treasurer
This Ordinance approved and signed by me this 69~' day of December 2005.
Robert L. Waiz, Jr., Mayor
BEFORE THE COMMON COUNCIL
FOR THE CITY OF JEFFERSONVILLE
IN THE STATE OF INDIANA
IN RE THE VETO OF
ORDINANCE NO. 2005-OR-77
Comes now the Mayor and Executive for the City of Jeffersonville, Robert I
Waiz, Jr. and having considered and reviewed Ordinance No. 2005-OR-77, hereby
exercises his statutory authority and vetoes said ordinance and in suppon states the
following:
1
The Plan Commission by a vote of 6-3 gave an unfavorable
recommendation of the re-zoning application.
The applicant, after a public hearing, has failed to meet his burden of
proof pursuant to I.C. 36-7-4-603 in that the re-zoning:
a. Would not be consistent with the city's comprehensive plan;
b. Would not be consistent with the current conditions and the
character of current structures and uses in the current zoning
district;
c. Would not be the most desirable use for which the land in the
current zoning district is adapted;
d. Would not conserve the property values throughout the
jurisdiction; and
e. Would not promote responsible development and growth.
The applicant, after a public hearing, has failed to demonstrate that the
application is in compliance with the current conditions and character of
Utica Pike, and specifically has failed to demonstrate that the proposed re-
zoning complies with the Utica Pike Overlay District (Article Five of the
City of Jeffersonville Zoning Ordinance). The proposed development is
not currently allowed within the Utica Pike Overlay District.
4. The applicant, after public hearing, failed to demonstrate that the proposed
re-zoning is the most desirable use in the neighborhood pursuant to I.C.
36-7-4-603. The most desirable use for the property is that consistent with
the Utica Pike Overlay District. Muti-family residential structures are not
consistent with the current characteristics of the neighborhood and the
intent of the Utica Pike Overlay District.
5. After consideration of the evidence and testimony, there is no rational
basis for the City Council's granting of the re-zoning application based
upon objective facts.
SO VETOED on this 6th day of December, 2~5'~ ._~ ~
RobertXlz:'Waiz, Jr.
Mayor, City of Jeff onville
ATTEST:
Pe~k-y~ter
Clerk-Treasurer
55'73
an~ wife, of the County of Ola~k, S~ate of Ymu~iana,
to Thomas W. 'Eemp£:and N~:~ J. Kempf, hunt, n6 and wife, of ~he County of
C1a~k, Sta%e of India~, for and in conside~tion of the sum of One
($1.00) un~ other valuable considerations, receipt of which is hereby acknow-
led~e~, the following described real estate in the County of Ol~k, State of
Ymd.tan~,
~eing a pa~t of ~u~vey No. 4 of the Illinois Grant, and also
~pa~t of ~s No. 5 ~ 6 of ~e P~i~ion of ~e ~ of
~wfo~ ~$e ~e at ~e ~ Te~, 18~, of ~e Ol~
No. 5 of ~e afo~i~ p~ition~ ~ence eas~ wi~ ~e
~ive~ ~ ~s; ~ence N. 40~ W. ~1.7~ feet ~o a po~t ~ ~e
c~te~ of U~ica ~e, ~e t~e place of be~; ~ence S.
5~° 12' W. wi~ ~e c~$er of s~d Utica P~e 177.15 feet;
~ce N. 40c W. 461.83 feet; ~ence N. 50° E. 82.7 fee~;
~ence S. 40~ E. 28.4 feet; ~ence S. ~2° 57' E. ~4.85 feet~
~nce N. 50° E. 68.29 feet; ~ence S. 40° E. 3~2.~6 fee~ ~o
The g~autees assume and agree to pay 197% ~eal esth~e taxes due and
payable i~ 1976 an~ all subsequent t~xes.
· I~ wires W~~EOF the said G~nto~s have hereunto set their hands and
STATE OF INDIANA:
CO~ OF CT.~WF ~
Befo=e me The ~,mde=signe~l, ~, Not~'y Public in and fo= said Colmty
nsme~ Ra~mond Enight and Msmie Enight, husband an~ wife, an~ ~cknowledged
the execu%ion of the foregoimg Warran%y Dee~.
NOTARY PU~I~C
Robex~ ~. Eempf,
At~oz~ey a% Law
417 East Court Avenue
Jeffe~sonville, ~ 47130
(8~2) ~83-3~8
D~vid IL Blankenbeker, P.L.S.
Terry A. Kendall, P.L.S.
422 Meigs Avenue
leffersonville, Indiana 47130
Howard IL Blankenbeker (1905-1974)
Rollyn H. Btankenbeker (1934-1994)
Blankenbeker & Son
Land Surveyors Inc., P.C.
gstablished 1945
(812) 2824183 phone
(812) 2824197 fax
P.O. Box 157
,leffersonville, Indiana
47131-0157
9 November 2005
DESCRIPTION OF PROPOSED CASA DEL RiO
Being a part of Survey #4 of the Illinois Grant to Clark County, In~tiana and being further described as
follows:
Beginning at the south comer of Lot 31 in Cherokee Terrace, as Shown in Plat book 11, Page 61 of said
County records; Thence N.49°59'15"E., along the southeast line of said lot, 68.13 feet; Thence S.39° 58'43"E.,
29.98 feet to THE TRUE PLACE OF BEGINNiNG:
Thence continuing S.39058'43"E., 195.02 feet;
Thence S.50°01'48"W., 126.03 feet;
Thence S.40°E., 26.85 feet;
Thence S.75°44'18"E., 28.28 feet;
Thence N.72°47'24"E., 66.63 feet;
Thence S.39°58'43"E., 61.77 feet to the northwestern Right-of-Way line of Utica Pike;
Thence S.56'22'38"W., along said Right-of-Way line, 50.31;
Thence N.39'58'43"W., 22.96 feet;
Thence S.72°47'24"W., 47.47 feet;
Thence N.75°44'18"W., 58.48 feet;
Thence N.40°W., 237.89 feet;
Thence N.49059'15"E., 176.11 feet to THE TRUE PLACE OF BEGINNiNG.
Containing 0.99 acre, and being subject to all easements of record.
file: 18354rl.wpd
NSO°E
82. 7'
N 4~°59'15'' E
P~OPOSED P~OPE~TT FOB
CAS~ DEL RIO CONDOMINIUm'S
IN SURVEY ~4 OF THE ILUNOIS
GRANT TO CLARK COUNTY
49'59'15" E
68.13'
11'
O. 99 ACRE
126.03'
~1.~ s 5o'o1'4~" w
~N~o /~-S 75'44'1,8 E
.28,28
Note:
THIS DRAWINO DOES NOT REPRESENT
A BOUNDARY SURVEY:,
ONNER: THOMAS W. & NANCY J. KEMPF
2415 UTICA PIKE
JEFFERSONVILLE, IN 47130
DATE' 10 NOVEMBER 2005 I JOB NO. 18,354
I
Mov 30 05 02:20p Thompson 812 285 9405 812-285-9405 p.1
i1/30/2005 11~09 2856~168 JEFF P~GE 02/B2
STAT]{ OF INDIANA
BEFOP~ THE JEFFERSONVILLE PLAN COMMISSION
IN RE THE APPLICATION OF
TI4OMA$ W. KElt4PF TO RF2ONE A
CEI~TAtN TRACT OF P~OPERTY
BEING DESCRIBED AS A ONE ACRE
~ ~CA~O AT 2~13 UTICA
P~Kg FROM R1: ,:,OW DENS~
RF~DENTIAL TO MI: L~M~D
MDI,~ILY },:ESID~TIAL,
.C_~ RTIFICATION OF UNFAVOR,~BL'E RECOMMENDA_ TION_,
~F PROPOSED ORr)rNANCE
Whereas, Thomas W. Kempffiled a petition before the geff'ersonville Plan
Commission to change thl: zoning designation o£the pm~ described ~ a~chcd
Exhibit A (the "F ropeay'9, from R 1: Low Density Residential to M1: Limited
Multif~ily Resi:teatial: and,
Whereas, after proper notice by publ'cat on, the J¢ffersonville Piton Commission
held a public hea:'/ng on thc petition on November 29, 2005; and,
Whereas, :a thc conclusion of thc hearing the geffarsonville Pi~ Commission
voted by a majorily vote of'its entire membership to deny re¢ommendatio~ of the
proposed change .:ff zoning designation of the Propeax'y to the Jeffersonville Common
Co,mci].
IT IS TI'Ek:REFORE CERTIFIED that on November 29, 2005, the
Jeffcrsonville Plan CommJs,~ion recommended t.,b. at the .lefl'crsonville Common Council
deny the request t,~ ~nact by ordinance tb.e proposed zoning designation change of the
property from R 1: Low Density ResidenIial to M1: Limited Multithmily Resident/al as
reques~'d in the p,:'tltien of'thomas W. Kempf.
So oertitie,.l this 29t~ day of November 2005.
· 5573
~ ~ife, of ~he Couu%U of Cla~k, S~%e of Indiana,
· ei~ a lmrt:of Survey No.
No. ~ of ~e ~o~ p~i$ion; ~ence eas~ wi~
~iwer 2 ~s; ~ce N. ~0
c~ter of Utics ~e, ~e %~e p~e of Be~-;~; ~ence S.
~6~ 12' W. wi~ ~e c~e= of s~d U~ic& ~ 177.15 fee%;
~ce N. hOe w. ~61.83 feet; .~ence ~. ~0~ E. 82.7 fee~;
~enoe S. ~o E. 28.h fee%; ~oe S. 62~ 57' E. 6h. 85 fee%;
~ence N. 500 E. 68.29 fee~;
~e ~e p~e of ~e~;~E,
The w~n~ee$ assume and agree ~o pa~ 1975 real ee~e ta~ee due =~
p~able ~ 1976 ~ ~1 ~bsequen~ ~es.
'~efore me the undersigned, a No~a~ l~bli~ in and fo: sa/d County
~m~ l~vmon~ Eni~h~ an~ F~mie Eu/~$, hunban~ and wife, an~ acknowledged
%he e~ecu~ion of %he fo~e~oi~6 W~rzanty Dee~.
- Rober~ H. Eempf, Jr.
A~ozne~ at L~w
h-].7 Y, an'~ Cour~ Av~ue
Jeffe~ille, ~
(812) 28~3~68
h713o
'D~vid R.Blankenbeker, ?.L.S.
TerryA. Kendall, P.L.S.
Howard R. B~er (1905'!9
RollynH. Blankenbeker (1934-191
Blankenbeker & Son
Land Surveyors Inc., P.C.
gs[ablished 1945
422 Meigs Avenue
Jeffcrsonville, Indiana 47130
(812) 2824183 phone
(812) 2824197 fax
P.O. Box 157
leffersonville, Indiana
47131-0157
9 November 2005
DESCRIPTION OF PROPOSED CASA DEL RIO
Being a part of Survey #4 of the Illinois Grant to Clark County, Indiana and being further described
follows:
Beginning at the south comer of Lot 31 in Cherokee Terrace, as shown in Plat book 11, Page 61 of sa
County records; Thence N.49° 59'15"E., along the southeast line of said lot, 68.13 feet; Thence S.39' 58'43 "E.
29.98 feet to THE TRUE PLACE OF BEGINNING:
Thence continuing S.39'58'43"E., 195.02 feet;
Thence S.50°01'48''W., 126.03 feet;
Thence S.40°E., 26.85 feet;
Thence S.75°44'I 8"E., 28.28 feet;
Thence N.72°47'24''E-, 66.63 feet;
~ooq~,43,,E
Thence S.~ ~v ., 61.77 feet to the northwestern Right-of-Way line of Utica Pike;
Thence S.56°22'38"W., along said Right-of-Way line, 50.31;
Thence N.39°58'4y'W., 22.96 feet;
Thence S.72'47'24"W., 47.47 feet;
Thence N.75°44'18"W., 58.48 feet;
Thence N.40'W., 237.89 feet;
Thence N.49°59'15"E., 176.11 'feet to THE TRUE PLACE OF BEGINNING.
Containing 0.99 acre, and being subject to all easements of record.
file: 18354rl.wpd
N50°E
82. 7'
--SOUTH CORNER OF LOT 31
CHEROKEE TERRACE
PLAT BOOK 11, PAGE 61
49'59'15" E
N 49°59'15'' E
17& 11'
O. 99 ACRE
PROPOSED P]~OPERTY
CA$~ DEL RIO CONDOI~INIUI~S
IN SURVEY iii4 OF THE ILUNOIS
GRANT TO CLARK COUNTY
68. 1.5'
Note:
THIS DP. AWING DOES NOT REPRESENT
A BOUNDARY SURVEY.
OYNEH' THOMAS I,Y. & NANCY J. KEMPF
241,~ UTICA PIKE
JEFFERSONVILLE. IN 471,0
DATE' 10 NOVEMBER 2005 I JOB N'o, 18,354.
NOTICE OF INTENT TO CONSIDER PROPOSED CHANGE OF ZONING MAP
Notice is hereby given that on December 5, 2005 at 7:30 o'clock p.m. in the
Multi-Purpose Hearing Room on the Third Floor of the City-County Building at 501 East
Court Avenue, Jeffersonville, Indiana, the Common Council of the City of Jeffersonville,
Indiana, intends to consider an ordinanCe, which, if adopted, would change the zoning
map designation of the following described property from RI: Low Density Residential
to MI: Limited Multifamily Residential.
DESCRIPTION OF PROPERTY LOCATED IN
THE CITY OF JEFFERSONVILLE
PROPERTY ADDRESS: Being described as a one acre tract
Located at 2413 Utica Pike.
The Jeffersonville Plan Commission made a favorable recommendation
Concerning the adoption of an ordinance enacting this proposed change of zoning map
designation after notice and hearing on November 29, 2005. All interested persons are
invited to attend and be heard regarding this matter. This Jeffersonville Common
Council meeting may be continued from time to time as found necessary. The
Jeffersonville Common Council may take official action at the conclusion of debate at
this meeting.
Such notice given and posted this 30th day of November 2005.
Peggy Wilder
Jeffersonville Clerk-Treasurer
Prepared by:
Les e D. Merkley
City Attorney
Sharon King
Paralegal
TELEPHONE: (812) 282-8429
DAVID A. LEWIS
ATTORNEY AT LAW
425 WATT STREET
P. O. BOX 729
JEFFERSONVILLE, INDIANA 47130
EM,~L: lexvlslaw(~2th eremc, com
FAX: (812) 284-0956
December 15, 2005
Hon. John Perkins
Jeffemonvitle City Council Member
323 E. Chestnut Street
Jeffemonville, Indiana 47130
Hon. Ron Grooms
3104 Autu nn Green Way
Jeffersonville, Indiana 47130
Mayor Rob Waiz
City of Jeffemonville
Fourth Floor
City-County Building
501 East Court Avenue
' Jeffersonville, Indiana 47130
RE: Ordinance No. 2005-OR-77
Dear Sirs:
I am writing this letter to request that Mr. Perkins recuse himself from participating in any vote
which may be called to override Mayor Waiz's veto of OrdinanceNo. 2005-OR-77. If Mr. Perkins chooses
not to recuse himself, this letter is written to request Mayor Waiz as the presiding officer of city council
meetings or Mr. Grooms as President of the Council to officially declare Mr. Perkins disqualified from
participating in any such vote. The legal basis for my request is set forth below.
First, Mr. Perkins appeared at the November 29, 2005 Plan Commission meeting and made an
extensive presentation advocating on behalf of an applicant that approval be given to re-zone a one acre
parcel at 24 l 3 Utica Pike from an R- 1 to an M- 1 zoning classification. At the time he made his presentation
he was fully aware of substantial and significant opposition to the proposal by residents of the area who
believed their propel"des would be affected by the zoning change.
Second, Mr. Perkins knew at the time he made his presentation that the Jeffersonville City Council
would be called upon to accept or reject the recommendation of the Plan Commission to deny the re-zoning
request. He knew that such a decision would have to be based on facts submitted at the City Counci!l meeting.
He knew that there were significant facts and reasons which justified the Plan Commission's recommendation
to deny the re-zoning request.
Third, Mr. Perkins is a member of the City Council.
These facts create an unavoidable conflict of interest and the Indiana com~s require a recusal o1'
disqualification under the circumstances.
Due process requires thai administrative bodies may not reach their decisions on the basis of
preconceived bias or prejudice. New h-ettd Beau(1 &:hool v. Board O/'Beau(v Cltlltlris! Erami,e~:v, 518
Letter to Perkins, Grooms & Waiz
December 15, 2005
Page 2
N.E.2d 1101, 1104-1105 (In&App. 1988). Both federal and state appellate courts have held that
administrative board members who are biased or prejudiced against a party to an action before the board
should disqualify themselves from participating in the decision of the action. Strider'ella Career attd
Fitdxhing School~ v. Federal Trade Commi&gion, 425 F.2d 583,590-591 (D.C.Cir. 1970), 8 A.L.R. Fed.
283, 297-298. The Indiana Supreme Court cited the Cinderella case with approval in the case of Ci(v of
Mishawaka v. Stewart, 310 N.E.2d 65, 70-71 (1 nd. 1971). See also: Berkshire Emplo. vee.~' A~sociatiott v.
Natiottal Labor Relations Board, 121 F.2d 235, 238-239 (3d Cir. t94t); Winslow v. Towtt pf Holderness
Planni,g Board, 480 A.2d 114, 116-i 17 (N.H. t984); and Couch v. Hamilton Court(v, 609 N.E.2d 39, 42
(In&App. 1993).
When a biased board member participates in a decision, the decision will be vacated. New Trend, at
1105. See Also: Cinderella Career at 591-592; American Cyanamid Co. v. Federal Trade Commi,~xiott,
363 F.2d 757, 767-768 (6th Cir. 1966); and Winslow, at 265, 269.
Indiana courts have applied these due process principles to boards of zoning appeals (Couch,/d.),
plan commiss ons (Hobart Common Council v. Institute o. fhtd., 785 N.E.2d 238 (Ind. App. 2003), and city
councils (Hobart, Id. and Smith v. CiO' (?fShelbvville 462 N.E.2d 1052 (In&App. 1984).
Please consider the following points of law:
Article I, Section 23 of the Indiana Constitution requires that due process be applied to land
use decisions. Hobart Common Council, M.
Due process mandates a neutral and unbiased fact finder for land use proceedings. Hobart
Common Council, Id. and Pero,-Worth, 723 N.E.2d at 460; and Rynerson v. Cio~ of
Franklin, 669 N.E.2d 964, 967 (Ind. 1996).
Due process requires that administrative bodies may not reach their decisions on the basis of
preconceived notions. Hobart Common Council, Id.
Biased behavior may be demonstrated by extreme partisan political considerations, personal
conflicts of interest and gain, or invidious discriminatm3, intent. Hobar! Common Council,
Id.
It is imperative that a strict test of impartiality be applied to the fact-finding process.
Hobart Common Collll£il, ]d.
The Indiana Court of Appeals required a city council person to recuse herself from a land use
decision only on the appearance of a conflict of interest, which is something even less blatant
than the actual conflict of interest demonstrated by Mr. Perkins' open, unconcealed bias in
this case. Hobart Cot~ttttoa Cou~tcil, Id.
The court rnay find a conflict of interest upon a consideration of whether the situation is one
reasonably calculated to weaken public confidence and undermine the public's protection of
individual rights. Smith v. CiO' pf Shell¥,ville. Id.
Given the fact that Mr. Perkins served as an advocate for a re-zoning request before the Plan
Commission knowing that he would be called upon to be an unbiased fact-finder in his official capacity as a
city councilman on the vet3,' same re-zoning request at a later date, he created a conflict of interest which
disqualifies him fi'om participating in any vote to override Mayor Waiz's veto of the re-zoning ordinance. He
should never have voted on the re-zoning request at the earlier city council meeting, l'he fact that he
Letter to Perkins, Grooms & Waiz
December 15, 2005
Page 3
participated in the earlier city council decision is grounds to vacate the ordinance. New D'end, at 1105;
Cinderella Career at 591-592; American C),anamid Co. at 767-768; and ~Vinslow, at 265,269.
The ordinance that received a 4-2 vote must be set aside, not only because it has been vetoed, but
also because Mr. Perkins should not have participated in the discussions and vote. We are asking that Mr.
Perkins not compound the violations of my clients due process rights by pailicipating in any decision which
may call for an oven'ide of the Mayor's veto.
David A. Lewis
xc: Les Merkley