06-11-73 Council Meeting Minutes

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REGULAR MEETING JUNE 11, 1973 COMMITTEE OF THE WHOLE MEETING (CONTINUED) rezoning for the doctor's office in the area and explained that the doctor's office has been added to, and the residents had been assured that these additions would not be made. He also felt the increase in traffic was very evident. He explained that when the parking lots at the doctor's office are cleared of snow in the winter, the snow is dumped onto the sidewalks. He briefly explained that he had taken a survey of the residents in the area regarding the rezoning. There was one who did not oppose, four were neutral, one did not matter, one opposed small business, nine were against and one had no answer. He indicated that there were 10 houses on McKinley that are well kept. The traffic problems that were created at Manchester and the road leading from the Jefferson complex were discussed by the residents when the survey was taken. He also indicated that the proposed rezoning could eventually accommodate a two -man business in the future. Mr. Maurice Tulchinsky, 3022 Essex Drive, indicated that he had lived in the area since 1954. He explained that Essex runs parallel to McKinley and is the first street north and dead ends into Manchester. He indicated that the homes in the area are beautiful, and he felt the Council had a duty and responsibility to retain the sanctity of the residential areas. He felt there should be some boundaries to curb commercialism. He felt the intersection of Manchester and McKinley was one of the most dangerous intersections in the city that should have traffic control. He also fel the area had become more dangerous because of the Jefferson complex. He stated that the present situation would compound the traffic situation. He felt the proposed rezoning was a classic example of spot zoning, and if approved, he wondered what would prevent someone else from rezoning still another area. He indicated that there was nothing personal in this matter, and he thanked the Council for the opportunity to speak to them. Mr. Dunfee indicated that Mr. Gonter and Mr. Tulchinsky were two of the three remonstrators who appeared before the Area Plan Commission. He indicated that the first gentleman had the restrictions very confused in his mind, and he explaine that the restrictions provided for four commercial lots on Edison Road and that the doctor's offic has never been rezoned to commercial. He indicated that there have never been any commercial lots rezoned other than the four on Edison. In 1954, there was also an amendment to those restrictions which stated that "all lots in the tract shall be known and described as residential lots." In the Zoning Ordinance, there are two categories of residential zoning. He indicated that, whenever there is a question on the restrictions, the freer use of the property is accepted and utilized. In reference to Mr. Light's denial of rezoning, he indicated that this was the Park Jefferson Apartments and it had not been turned down. He mentioned that he lived on Miami Street and there was also a problem with traffic in that area. He indicated that he could not come before the Council to oppose any rezoning in that area. He also mentioned that Mr. Tulchinsky was an attorne and he felt he should read the court cases in regard to spot zoning. He briefly touched upon laches and the Statute of Limitations. He explained that the word "laches" meant the neglect of doing a certain thing at the proper time. He asked why something had not been done previously if the doctor's office had been in violation. He proposed that the best possible usage of the 10 lot along McKinley would be for professional usage such as the proposed rezoning being considered. Mr Gonter indicated that he wanted to speak again, and Mr. Dunfee indicated that he had the right to open and close discussion because he was representing the petitioner. Chairman Newburn indicated that he would let Mr. Gonter speak again because it was a public hearing. Mr. Gonter indicated that he only wanted to clarify two points, they being that the lots that were zoned commercial were on Corby and that the Light rezoning he had been referring to was the area across from the Park Jefferson Apartments. Mr. Dunfee indicated that he had obtained a list of the owners within 300 feet which he presented to the City Clerk. Councilman Kopczynski asked Mr. Gonter to explain his statement about McKinley and Manchester bein, one of the most dangerous intersections in the city. Mr. Gonter indicated that he had not stated that; however, he did feel it was a dangerous intersection because Manchester is one of the two outlets on McKinley and across the street is the entrance to Park Jefferson. Councilman Kopczynsk. asked Mr. Gonter how many cars use that entrance to Park Jefferson. Mr. Gonter indicated that he had not taken a survey and did not know exactly the usage, but he stated that he did know there was a great deal of traffic generated in that area. Councilman Kopczynski asked Mr. Gonter how he would describe the intersection if there were five blocks of cars waiting to make a turn, and Mr. Gonter felt it would be a very dangerous situation if that was the case. Councilman Kopczynsk. concluded by indicating that he had only been curious to see which intersections the citizens feel are dangerous. Councilman Horvath indicated that he was concerned about the restrictions, and he indicated that the way he understood the matter, when a builder comes into a subdivision.and write an agreement with the prospective purchaser that there would be no particular type of business coming into the area, then the covenants do not hold when someone wanted to rezone. Mr. Dunfee indicated that the covenants only have power in a court of law and the reasonableness must be shown. He explained that the court will not enforce covenants unless they are reasonable and up- to -date. A recent case stated that the question of private restrictions was not an applicable inquiry before a zoning authority, and he stated that this was the law in the State of Indiana. Councilman Horvath indicated that, in other words, a developer could sell the purchaser "a bill of goods" which would not be valid. Mr. Dunfee explained that the same building would be utilized for the realtor's office and would have to be rezoned unless Mr. Nifong lived in the building. Councilman Horvath indicated that this did not seem right. Mr. James Roemer, City Attorney, helped to clarify the situation by indicated that the Council does not act as a court of law in this particular case. He indicated that, on the points of law that are involved, a court of law must make the determination. If the Council approved the rezoning, the people that hold the covenants would have the right to go into a court of law for a determination. Councilman Parent felt this was a trait for strip zoning. He stated that Mr. Nifong would have more business on the premises than if he lived in the house and had his office there. He urged that the Council vote against the rezoning. Council President Nemeth asked Mr. Dunfee if he had filed a brief on spot zoning, and Mr. Dunfee indicated that he had. Councilman Miller asked about the possibility of future widening on McKinley. Mr. Dunfee indicated that there had been discussion on ingress and egress and that there was a 25 -foot setback which would allow more than adequate room for expansioi He knew of no plans to encroach upon the private property. Councilman Miller asked how much would be required for widening, and Mr. David Wells of the Engineering Department indicated that 12 feet per lane is needed and 2 feet for each curb and gutter. Councilman Miller asked if the Area Plan Commission had approved the rezoning. He indicated that a similar case had been denied by the Arei Plan Commission. Mr. Douglas Carpenter, Planner for the Area Plan Commission, indicated that the staff itself had recommended against the rezoning at hand and the case Councilman Miller had referred to; however, the Area Plan Commission had overruled the recommendation of the staff. He did not know the reason for this. Councilman Miller indicated that there had been a similar situa- tion on Ireland Road. He asked about the requirements needed in order to rezone the whole area an( try to get away from the spot zoning. Mr. Carpenter indicated that this could be done on motion of the Council or on request of 50% of the owners. Councilman Miller asked if the owners would agree to that, and Mr. Dunfee indicated that they would; however, the Zoning Code stated that the