HomeMy WebLinkAbout2015-OR-11 Zoning Committment201508719 MISC $29.00
05/22/2015'03:55:23P 10 PGS
Zachary Payne
Clark County` Recorder IN
Recorded ryas Presented
IIIIIIIIIIIIhIIIIIIIIIIIIIIIIIIjIIIIIIIIIIJIIII IjIIIIIIIIIIIIIIIII IIIl
ZONING COMMITMENT
This Zoning Commitment is made in accordance with the provisions of Ind. Code §36-7-4-1015 and
Sections 12.3(B) and (E) of the Jeffersonville Zoning Code, by:
Sail Time, LLC, an Indiana limited liability company ("Sail Time"), with an address of 1611 E.
10th Street, Jeffersonville, IN 47130;
in favor of
The City of Jeffersonville, Indiana, the City of Jeffersonville Advisory Plan Commission
(hereinafter referred to as the "Plan Commission"), and the City of Jeffersonville Board of
Zoning Appeals (the "BZA", and also collectively referred to as the "City"), with an address of
500 Quartermaster Court, Jeffersonville, Indiana 47130.
RECITALS:
WHEREAS, Sail Time, a wholly owned subsidiary of Fetter Properties, LLC, a Kentucky limited
liability company ("Fetter"), is the owner of an approximately 44 acre parcel of real estate located in the 2400
Block of 10th Street in Jeffersonville, Indiana (the "Real Estate"), which includes the property more particularly
in Exhibit A attached hereto and made a part hereof; and,
WHEREAS, Fetter previously filed an application with the City of Jeffersonville Plan Commission (the
"Plan Commission") to change the zoning designation of the Real Estate from M2 District Classification
(Medium Density Multifamily Residential) and C1 District Classification (Small to Medium Scale Commercial)
to a C2 District Classification (Medium to Large Scale Commercial) as Docket No. PC -15-08, and (ii) approval
of a Development Plan as Docket No. PC -14-18; and,
WHEREAS, simultaneously with the filing of the foregoing application, Fetter filed its application with
the Jeffersonville Board of Zoning Appeals (the "BZA") for the grant of a special exception and development
standards variances to permit the construction and operation of a Auto Sales (Open Air, limited Mechanical
Services or Body Shop) as Docket No. BZA-15-06 for purposes of enabling Fetter to relocate and operate its
business known as Clark County Auto Auction; and,
WHEREAS, during the regular meetings of the Plan Commission on February 24, 2015, the Plan
Commission favorably recommended approval of the rezoning and favorably recommended approval of the
development plan provided Fetter voluntary met with interested parties in the Jeffersonville City Courthouse on
February 28, 2015;
WHEREAS, as part of the public meeting and in furtherance of Fetter's applications to (i) rezone the
Real Estate to C2 (Medium to Large Scale General Commercial), and (ii) the granting of a special exception
and obtaining development standards variances, Fetter voluntarily commits and agrees that if the requested
rezoning and grant of special exception and development standards variances are finally approved, that Fetter
would covenant to not access the real estate by any street other than 10th Street and would commit to maintain
certain minimum buffer areas and make certain improvements within those buffer areas; and,
WHEREAS, in order to reflect this agreement, Fetter now voluntarily tenders this Zoning Commitment
pursuant to the provisions of Ind. Code § 36-7-4-1015 as an inducement to the granting of Fetter's zoning,
special exception and variance applications.
NOW, THEREFORE, in consideration of the grant of (i) the requested Zone Map change regarding the
Real Estate from M2 (Medium Density Multifamily Residential) and C1 (Small to Medium Scale Commercial)
to a C2 District Classification (Medium to Large Scale Commercial), (ii) the special exception and development
standards variances to permit the construction and operation of the proposed auto auction on the Real Estate,
and (iii) the administrative amendment to Fetter's development plan, Sail Time expressly commits to the
following:
1. Tree Canopy Protection. Sail Time covenants and agrees that, notwithstanding anything to the
contrary contained in the Jeffersonville Zoning Ordinance now or hereafter in effect,
a. Sail Time shall not disturb any portion of the land or existing vegetation which is in good health
and situated within the 40 foot wide portion of the Real Estate situated immediately adjacent to and
running parallel with the easterly boundary of Lots 201 through 221 and Hall Lane as shown on The
Woods of Northaven Subdivision, Section 2, the plat of which is shown in Plat Book 15, Page 45 and
Lot 133 as shown on the Woods of Northaven, Section 1, as shown in Plat Book 15, Page 7, both in the
office of the Recorder of Clark County, Indiana (the "Northaven TCP Area").
b. Sail Time shall not disturb any portion of the land or existing vegetation which is in good health
and situated within the forty-five (45) foot wide portion of the Real Estate situated immediately adjacent
to and running parallel with the public right of way known as Thompson Lane (as same is determined
and located by the City of Jeffersonville) commencing at the terminus of the eastern edge of the
Snyder/Thompson Lane Berm (as defined in Paragraph 2 hereof) and continuing to the western edge of
the Ashley Buffer Area (as defined in paragraph 2 hereof) (the "Thompson Lane TCP Area").
The limitations in this paragraph shall not require or prohibit Sail Time from removing dead or diseased
vegetation.
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2. Additional Buffer Areas. Sail Time covenants and agrees that, notwithstanding anything to the
contrary contained in the Jeffersonville Zoning Ordinance now or hereafter in effect:
a. Sail Time shall cause to be constructed an earthen berm immediately adjacent to and
parallel with the Northaven TCP Area (the "Northaven Berm"), and shall cause to be planted within the
Northaven Berm evergreen trees planted no more than 20 feet apart. Said evergreen trees shall be at
least six (6) and eight (8) feet tall and planted in an alternating pattern on each side of the crest of the
berm within one (1) foot from the crest of the berm so that it will appear that each tree is 20 feet from
each other;
b. Sail Time shall cause to be constructed an earthen berm immediately adjacent to and
parallel with the southerly right of way line of the public rights of way known as Snyder Road and
Thompson Lane (as same is determined and located by the City of Jeffersonville) which berm shall
commence at its intersection with the Northaven Berm and extend approximately 370 feet to the existing
tree line adjoining Thompson Lane (the "Snyder Road Berm," and together with the Northaven Berm,
hereinafter collectively referred to as that "Berms"), and shall cause to be planted within the Snyder
Road Berm, evergreen trees planted no more than 20 feet apart. Said evergreen trees shall be at least six
(6) to eight (8) feet tall and planted in an alternating pattern on each side of the crest of the berm within
one (1) foot from the crest of the berm so that it will appear that each tree is 20 feet from each other.
c. The berms shall be constructed from soil taken from the Real Estate during the course of
Sail Time's initial improvements to the Real Estate. Sail Time shall endeavor to construct berms four
(4) feet in height using soil taken from the Real Estate but said berms shall, at a minimum be three (3)
feet in height (as measured from the existing ground elevation). Sail Time shall not be obligated to
transport soil from off-site in order to construct the Berms provided said Berms are at least three (3) feet
in height. Once installed, Sail Time shall not remove the Berms nor any evergreen trees, other than those
dead or diseased evergreen trees provided any dead or diseases evergreen tree so removed shall be
replaced with an evergreen tree of the same size and character as originally planted by Sail Time.
d. Following installation of the Berms and evergreen trees, Sail Time shall not pave, fence
or otherwise improve any portion of the Real Estate situated within:
i. The sixty-five (65) foot wide strip of ground immediately adjacent to and running
parallel with the easterly boundary of Lots 201 through 221 and Hall Lane as shown on The
Woods of Northaven Subdivision, Section 2, the plat of which is shown in Plat Book 15, Page 45
and Lot 133 as shown on the Woods of Northaven, Section 1, as shown in Plat Book 15, Page 7,
both in the office of the Recorder of Clark County, Indiana (the "Northaven Buffer Area") which
Northaven Buffer Area shall encompass and include the Northhaven TCP Area and the
Northaven Berm; and
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ii. The forty-five (45) foot wide strip of ground immediately adjacent to and running
parallel with the southerly right of way line of the public rights of way currently known as
Snyder Road and Thompson Lane (as same is determined and located by the City of
Jeffersonville) (the "Snyder/Thompson Lane Buffer Area," and together with the Northhaven
Buffer Area, hereinafter referred to as the `Buffer Areas") which Snyder/Thompson Lane Buffer
Area shall encompass and include the Snyder Berm and the Thompson Lane TCP Area; and
iii. The forty-five (45) foot wide strip of ground immediately adjacent to and running
parallel with the westerly boundary of Ashley Square, Sections One and Two, the plats of which
are shown in Plat Book 11, page 11, and Plat Book 11, page 28, both in the Office of the
Recorder of Clark County, Indiana (the "Ashley Buffer Area," and together with the Northaven
Buffer Area and the Snyder/Thompson Lane Buffer Area, hereinafter referred to as the "Buffer
Areas").
3. Development Plan Amendments. In consideration of the covenants contain in this Paragraph 2:
a. Sail Time shall be relieved from any development plan requirements to landscape the
exterior of the northwesterly and southwesterly fence line of the proposed fence bounding the
rear parking lot situated on the Real Estate; and
b. Sail Time shall be entitled to otherwise improve, fence or pave any of the Real Estate not
within the Buffer Areas, provided such improvement, fence or pavement complies with any
development standards of the Jeffersonville Zoning Ordinance now or hereafter in effect.
c. So long as Sail Time does not encroach on any part of any of the Buffer Areas, Sail Time
may seek variances from any development standards of the Jeffersonville Zoning Ordinance,
now or hereafter in effect, in accordance with those procedures prescribed by the
Jeffersonville Zoning Ordinance as now or hereafter in effect.
4. Limited Access. Sail Time shall access the Real Estate only by 10`h Street and shall not access or
exit the Real Estate via Hall Lane, Snyder Road or Thompson Lane. Additionally, Sail Time shall take no
voluntary action to access or exit the Real Estate via Hall Lane, Snyder Road or Thompson Land or dedicate
any portion of its Real Estate for purposes of enabling others to access Hall Lane, Snyder Road or Thompson
Lane.
5. No Public Address System. Regardless of whether allowed by the Jeffersonville Zoning Code,
Sail Time shall not use or otherwise allow the use of a public address system containing speakers or other sound
emanation system situated or mounted on the exterior of the improvements to be constructed on the Real Estate.
Nothing contained herein shall be deemed to prohibit the use of speakers on the inside of the proposed building
to be constructed on the Real Estate.
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6. Barbed Wire. Regardless of whether allowed by the Jeffersonville Zoning Code, Sail Time shall
not place or otherwise allow the placement of barbed wire on any portion of any fence constructed on the Real
Estate.
7. Conditions to Effectiveness. This Zoning Commitment shall become binding on Sail Time and it
successors and assigns, thirty (30) days following the last to occur of the following:
a. The final adoption of an ordinance by the Common Council of the City approving the
Zone Map change regarding the Real Estate to C2 (Medium to Large Scale General Commercial) as requested
by Sail Time;
b. The final grant of a special exception and development standards variances authorizing
the development and use of the Real Estate as an Auto Sales (Open Air, limited Mechanical Services or Body
Shop) facility by the BZA; and
c. Administrative approval of the minor changes to the approved Development Plan reflecting
the Berm Areas and Buffer Areas identified herein.
By acceptance of this zoning commitment, the Planning Director is hereby authorized and instructed to
administratively amend the approved Development Plan to reflect the TCP and Buffer Areas identified herein.
8. Recordation. Subsequent to the satisfaction of said conditions precedent, the Applicant shall
execute this Zoning Commitment, cause same to be recorded in the office of the Recorder of Clark County,
Indiana, and provide a duly recorded copy of same to the City Planning Director. Prior to such recording, the
City shall not be obligated to issue a building permit for any portion of the Real Estate.
9. Binding Effect. The terms and conditions of this Zoning Commitment shall be covenants
touching and concerning the Real Estate, shall run with the Real Estate and shall be binding on, and enforceable
against, Sail Time, or its successors or assigns.
10. Enforcement. Whether prior or subsequent to the recordation of this Zoning Commitment, as
provided hereinabove, the terms and conditions of this Zoning Commitment may be enforced in any Indiana
court of competent jurisdiction by the City by the Jeffersonville Plan Commission and the BZA who shall have
continuing jurisdiction over, and authority to enforce, this Zoning Commitment in accordance with the terms set
forth herein.
11. Following the recordation of this Zoning Commitment, the terms of this Zoning Commitment
may be modified or terminated: (i) upon a subsequent change in the zone map applicable to the Real Estate in
accordance with the procedures set forth in the Jeffersonville Zoning Ordinance now or hereafter in effect; or
(ii) by subsequent written amendment or termination executed by (a) the then owner of the Real Property, (b)
the City of Jeffersonville Plan Commission subsequent to a regular or special meeting following notice as
required by Indiana law, and (iii) The Woods of Northaven Owner's Association.
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IN WITNESS WHEREOF, this Zoning Commitment is voluntarily made, undertaken, and tendered by
Sail Time, LLC, an Indiana limited liability company by its undersigned Manager, to the City of Jeffersonville,
Indiana, the City of Jeffersonville Advisory Plan Commission, and the City of Jeffersonville Board of Zoning
Appeals in consideration of the grant of the zoning approvals, development plan amendment, special exception
and variances referenced hereinabove on this a.� " day of May, 2015.
STATE OF INDIANA
) SS:
COUNTY OF CLARK
SAIL TIME, LLC, an Indiana limited liability company
By: /11 '' D. W*2_
Matthew D. Fetter, Manager
Before me, a Notary Public in and for the above-named County and State, personally appeared Matthew
D. Fetter, as Manager of Sail Time, LLC, an Indiana limited liability company, and acknowledged the execution
of the foregoing Zoning Commitment on behalf of such company, as its free and voluntary act and deed for the
uses and purposes specified therein.
Witness my hand and Notarial Seal, this 2,==a k day of May, 2015.
My Commission expires:
Z/
Resident of
County
Printed Signature
DECLARATION
I affirm, under the penalties for perjury, that I have taken
reasonable care to redact each Social Security number in this
document, unless required by law, and that this instrument was prepared by:
Alan M. Applegate, Attorney
APPLEGATE FIFER PULLIAM LLC
428 Meigs Avenue
Jeffersonville, IN 47130
(812) 284-9499
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David R Blankenbeker, P.L.S.
618 E. Court Avenue
Jeffersonville, Indiana 47130
E x HI/3_r-r "11"
Howard R. Blankenbeker (1905-1974)
RolIyn H_ Blankenbeker (1934-1994)
la kenbeker G ^.t Son
Lai, d Surveyors Inc., P.C.
Established 1945
(812) 282-4183 phone
�+p�(8812)) 282-4197 fax
liAlL1ITB"
11 March 2015
DESCRIPTION OF 0.68 ACRE TRACT IN SURVEY 11
P.O. Box 157
Jeffersonville, Indiana
47132-0157
Being a part of Survey 11 of the Illinois Grant to Clark County, Indiana and being further described as
follows:
Beginning at a magnetic aluminum monument on the north comer of said Survey; Thence
S.54° 16'43"W., along the northwestern line of said Survey, 846.53 feet to a steel pin; Thence S.34°47'21"E.,
along the southwestern lines of Ashley Square Section 1 (see plat book 11, page 11) and 2 (see plat book 11,
page 28), 1843.1 feet to an iron pipe on the southern most corner of said Ashley Square Section 1, being on the
western Right -of -Way line of East Tenth Street (formerly State Highway 62); Thence along said Right -of -Way
line, 243.36 feet along the arc of a 34,446.68 foot radius curve to the left (concave easterly) being subtended by
a chord bearing S.18°54'57"W., 243.36 feet to a steel pin, THE TRUE PLACE OF BEGINNING:
Thence continuing 121.96 feet along said curve and said Right -of -Way line, being subtended by a chord
bearing S.18°36'43"W., 121.96 feet to a steel pin;
Thence S.18°30'38"W., along said Right -of -Way line, 28.04 feet to a steel pin;
Thence N.71°22'30"W., 196.91 feet to a steel pin;
Thence N.18°37'30"E., 150 feet to a steel pin;
Thence S.71°22'30"E., 196.82 feet to THE TRUE PLACE OF BEGINNING.
Containing 0.68 acre and being subject to all easements of record.
fde:T:\DOCS\DESCRIPTIONS\21602-1.wpd
David R Blankenbeker, P.L.S.
618 E. Court Avenue
Jeffersonville, Indiana 47130
Howard R. Blankenbeker (1905-1974)
Rallyn 14. Blankenbeker (1934-1994)
ke ek ,r ! _ Son
Land Surveyors Inc., P.C.
Established 1945
(812) 282-4183 phone
(812) 282-4197 fax
EXHIBIT "C"
11 March 2015
DESCRIPTION OF 41.56 ACRES IN SURVEY 11
P.O.Box157
Jeffersonville, Indiana
47131-0157
Being a part of Survey 11 of the Illinois Grant to Clark County, Indiana and being further described as
follows:
Beginning at a magnetic aluminum monument on the north corner of said Survey; Thence
S.54°I6'43"W., along the northwestern line of said Survey, 846.53 feet to a steel pin; Thence S.34°47'21"E.,
29.58 feet to a steel pin, THE TRUE PLACE OF BEGINNING:
Thence continuing S.34°47'21"E., along the southwestern lines of Ashley Square Section 1 (see plat
book 11, page 11) and 2 (see plat book 11, page 28), 1813.53 feet to an iron pipe on the southern most corner of
said Ashley Square Section 1, being on the western Right -of -Way line of East Tenth Street (formerly State
Highway 62); Thence along said Right -of -Way line, 243.36 feet along the arc of a 34,446.68 foot radius curve
to the left (concave easterly) being subtended by a chord bearing S.18°54'5T'W., 243.36 feet to a steel pin;
Thence N.71°22'30"W., 196.82 feet to a steel pin; Thence S.18°37'30"W., 150 feet to a steel pin; Thence
S.71 °22'30"E., 196.91 feet to a steel pin on said eastern Right -of -Way line; Thence S.18°30'38"W., along said
Right -of -Way line, 50 feet to a steel pin; Thence N.71°22'30"W., 289 feet to a steel pin; Thence
S.18°37'30"W., 150 feet to a steel pin; Thence S.71°22'30"E., 89.3 feet to a steel pin; Thence S.18°37'30"W.,
137 feet to a steel pin; Thence S.71°22'30"E., 200.27 feet to a steel pin on said Right -of -Way line; Thence
S.18°30'38"W., along said Right -of -Way line, 379.35 feet to a steel pin; Thence N.35°43'0I"W., (passing
through an iron pipe on the eastern most comer of The Woods of Northaven, Section 2 as shown in Plat Book
15, Page 45 at 946.4 feet), 2490.26 feet to a steel pin on the northern most corner of Lot 133 in the Woods of
Northaven, Section 1, as shown in Plat Book 15, Page 7; Thence N.54°16'56"E., along the southeast line of Lat
"A" in said Section I, 325.04 feet to a steel pin on a new Right -of -Way line of Thompson Lane; Thence
S.35°45'55"E., along a Right -of -Way line of said Thompson Lane, 25 feet to a steel pin; Thence
N.54° 16'21"E., along a Right -of -Way line of said Thompson Lane, 50 feet to a steel pin; Thence N.7°22' 52"E.,
along a Right -of -Way line of said Thompson Lane, 34.24 feet to a steel pin; Thence, along a Right -of -Way line
of said Thompson Lane, 27.54 feet along the arc of a 275 foot radius curve to the right (concave southerly)
being subtended by a chord bearing N.72°37'3T'E., 27.53 feet to a steel pin; Thence, along a Right -of -Way line
of said Thompson Lane, 12254 feet along the arc ofa 325 foot radius curve to the left (concave northwesterly)
being subtended by a chord bearing N.64°41'27"E., 121.82 feet to a steel pin; Thence N53°53 '35"E., along a
Right -of -Way line of said Thompson Lane, 302.69 feet to a steel pin; Thence N.55°30' 16"E., along a Right -of -
Way line of said Thompson Lane, 40.32 feet to the TRUE PLACE OF BEGINNING.
Containing 41.56 acres and being subject to all legal highways and easements of record.
file:T:DOCS\DESCRIPTIONsl21602-4.wpd
David R. Blankenbeker, P.L.S.
Howard R. Blankenbeker (1905-1974)
Rollyn H. Blankenbeker (1934-1994)
i.nkenbeker ;. Son
Land Surveyors Inc,, P.C.
Established 1945
618 E. Court Avenue
Jeffersonville, Indiana 47130
(812) 282-4183 phone
(312) 282-4197 fax
11 March 2015
EXHIBIT "A' T
DESCRIPTION OF 1.00 ACRE TRACT IN SURVEY 11
P.O. Box 157
Jeffersonville, Indiana
47131-0157
Being a part of Survey 11 of the Illinois Grant to Clark County, Indiana and being further described as
follows:
Beginning at a magnetic aluminum monument on the north corner of said Survey; Thence
S.54°16'43"W., along the northwestern line of said Survey, 846.53 feet to a steel pin; Thence S.34°47'21"E.,
along the southwestern lines of Ashley Square Section 1 (see plat book 11, page 11) and 2 (see plat book 11,
page 28), 1843.1 feet to an iron pipe on the southern most corner of said Ashley Square Section 1, being on the
western Right -of -Way line of East Tenth Street (formerly State Highway 62); Thence along said Right -of -Way
line, 243.36 feet along the arc of a 34,446.68 foot radius curve to the left (concave easterly) being subtended by
a chord bearing S.18°54'5T'W., 24336 feet to a steel pin, Thence continuing 121.96 feet along said curve and
said Right -of -Way line, being subtended by a chord bearing S.18°36'43"W., 121.96 feet to a steel pin; Thence
S.18°30'38"W., along said Right -of -Way line, 78.04 feet to a steel pin, THE TRUE PLACE OF BEGINNING:
Thence continuing S.18°30'38"W., along said Right -of -Way line, 150 feet to a steel pin;
Thence N.71°22'30"W., (passing through a steel pin at 200 feet) 289.3 feet to a steel pin;
Thence N.18°37'30"E., 150 feet to a steel pin;
Thence S.71°22'30"E., 289 feet to THE TRUE PLACE OF BEGINNING.
Containing 1.00 acre and being subject to all easements of record.
file:T:\DO CS\DES CRIPTIONSV21602-2.wpd
David R. Blankenbeker, P.L.S. Howard R. Blankenbeker (1905-1974)
Ro11yn H. Blankenbeker (1934-1994)
Blanken i eker & Son
Land Surveyors Inc., F.C.
618 E. Court Avenue
Jeffersonville, Indiana 47I30
Established 1945
(812) 282-4183 phone
(812) 282-4197 fax
I 1 March 2015
DESCRIPTION OF 0.63 ACRE TRACT IN SURVEY 11
P.O. Box 157
Jeffersonville, Indiana
47131-0I57
Being a part of Survey 11 of the Illinois Grant to Clark County, Indiana and being further described as
follows:
Beginning at a magnetic aluminum monument on the north corner of said Survey; Thence
S.54°16'43"W., along the northwestern line of said Survey, 846.53 feet to a steel pin; Thence S.34°47'21"E.,
along the southwestern lines of Ashley Square Section 1 (see plat book 11, page 11) and 2 (see plat book 11,
page 28), 1843.1 feet to an iron pipe on the southern most corner of said Ashley Square Section 1, being on the
western Right -of -Way line of East Tenth Street (formerly State Highway 62); Thence along said Right -of -Way
line, 243.36 feet along the arc of a 34,446.68 foot radius curve to the left (concave easterly) being subtended by
a chord bearing S.18°54'57"W., 243.36 feet to a steel pin, Thence continuing 121.96 feet along said curve and -
said Right -of -Way line, being subtended by a chord bearing S.18°36'43"W., 121.96 feet to a steel pin; Thence
S.18°30'38"W., along said Right -of -Way line, 228.04 feet to a steel pin, THE TRUE PLACE OF
BEGINNING:
Thence continuing S.18°30'38"W., along said Right -of -Way line, 137 feet to a steel pin;
Thence N.71°22'30"W., 200.27 feet to a steel pin;
Thence N.18°37'30"E., 137 feet to a steel pin;
Thence S.71 °22'30"E., 200 feet to THE TRUE PLACE OF BEGINNING.
Containing 0.63 acre and being subject to all easements of record.
file:TADOCS\DESCRIPTIONS\21602-3.wpd