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HomeMy WebLinkAbout03-26-12 Council Agenda & Packet d a AGENDA SOUTH BEND COMMON COUNCIL MEETING MONDAY, MARCH 26, 2012 7; 00 P.M. 1. INVOCATION - REVEREND JANICE HALL 2. PLEDGE TO THE FLAG 3 . ROLL CALL 4 . REPORT FROM THE SUB-COMMITTEE ON MINUTES 5 . SPECIAL BUSINESS A. COUNCIL COMMUNITY AWARDS 12-19 A RESOLUTION OF THE COMMON COUNCIL OF THE CITY OF SOUTH BEND, INDIANA, AWARDING MRS. AARON BLIGHT, PRESIDENT OF HEARTLAND SMALL ANIMAL RESCUE (HSAR) WITH A "2012 SOUTH BEND CITIZEN AWARD" 12-22 A RESOLUTION OF THE COMMON COUNCIL OF THE CITY OF SOUTH BEND, INDIANA, AWARDING ADAMS HIGH SCHOOL SENIOR STUDENT-ATHLETE ROSEY GREEN WITH A "2012 SOUTH BEND CITIZEN YOUTH AWARD" 12-23 A RESOLUTION OF THE COMMON COUNCIL OF THE CITY OF SOUTH BEND, INDIANA, AWARDING JOHN SCHALLIOL, FORMER EXECUTIVE DIRECTOR OF THE SOUTH BEND REGIONAL AIRPORT WITH A "2012 SOUTH BEND CITIZEN AWARD" 12-24 A RESOLUTION OF THE COMMON COUNCIL OF THE CITY OF SOUTH BEND, INDIANA, AWARDING THE KROC CENTER WITH A "2012 SOUTH BEND BUSINESS OF THE MONTH AWARD" 12-21 A RESOLUTION OF THE COMMON COUNCIL OF THE CITY OF SOUTH BEND, INDIANA, ADOPTING A WRITTEN FISCAL PLAN AND ESTABLISHING A POLICY FOR THE PROVISION OF SERVICES TO AN ANNEXATION AREA IN CLAY TOWNSHIP (ALIBABA ANNEXATION AREA) 6. REPORTS OF CITY OFFICES 7 . RESOLVE INTO THE COMMITTEE OF THE WHOLE TIME: BILL NO. 03-12 PUBLIC HEARING ON A BILL TO VACATE THE FOLLOWING DESCRIBED PROPERTY: THE STREET TO BE VACATED IS A PORTION OF UNITED DRIVE (PRAIRIE AVENUE) FROM THE EAST RIGHT-OF-WAY LINE OF SCOTT STREET TO THE SOUTH RIGHT-OF- WAY LINE OF THE NORFOLK AND SOUTHERN RAILROAD OVERPASS. A SECOND PORTION TO BE VACATED IS SAID UNITED DRIVE BEGINNING AT THE NORTH RIGHT-OF-WAY LINE OF SAID NORFOLK AND SOUTHERN RAILROAD OVERPASS THENCE NORTH TO THE SOUTH RIGHT-OF-WAY LINE OF SOUTH STREET 07-12 PUBLIC HEARING ON A BILL OF THE COMMON COUNCIL OF THE CITY OF SOUTH BEND, INDIANA, AMENDING THE ZONING ORDINANCE AND ESTABLISHING HISTORIC LANDMARK. STATUS FOR THE STRUCTURE AND REAL PROPERTY KNOWN AS THE KEOGAN "HOBBIT" HOUSE AND LOCATED AT 1922 PORTAGE AVENUE, IN THE CITY OF SOUTH BEND, INDIANA 82-11 PUBLIC HEARING ON A BILL OF THE COMMON COUNCIL OF THE CITY OF SOUTH BEND, INDIANA, ANNEXING TO AND BRINGING WITHIN THE CITY LIMITS OF SOUTH BEND, INDIANA, AND AMENDING THE ZONING ORDINANCE FOR PROPERTY LOCATED IN CLAY TOWNSHIP, CONTIGUOUS THEREWITH; COUNCILMANIC DISTRICT 4, ALIBABA CAFt INC, 17917 SR 23, SOUTH BEND, INDIANA 09-12 PUBLIC HEARING ON A BILL OF THE COMMON COUNCIL OF THE CITY OF SOUTH BEND, INDIANA, AMENDING VARIOUS SECTIONS OF ARTICLE 9, OF CHAPTER 2 OF THE SOUTH BEND MUNICIPAL CODE BY THE INCLUSION OF NEW PROVISIONS ADDRESSING GENDER IDENTITY AND SEXUAL ORIENTATION $ , BILLS, THIRD READING TIME: BILL NO. 03-12 THIRD READING ON A BILL TO VACATE THE FOLLOWING DESCRIBED PROPERTY: THE STREET TO BE VACATED IS A PORTION OF UNITED DRIVE (PRAIRIE AVENUE) FROM THE EAST RIGHT-OF-WAY LINE OF SCOTT STREET TO THE SOUTH RIGHT-OF- WAY LINE OF THE NORFOLK AND SOUTHERN RAILROAD OVERPASS. A SECOND PORTION TO BE VACATED IS SAID UNITED DRIVE BEGINNING AT THE NORTH RIGHT-OF-WAY LINE OF SAID NORFOLK AND SOUTHERN RAILROAD OVERPASS THENCE NORTH TO THE SOUTH RIGHT-OF-WAY LINE OF SOUTH STREET 07-12 THIRD READING ON A BILL OF THE COMMON COUNCIL OF THE CITY OF SOUTH BEND, INDIANA, AMENDING THE ZONING ORDINANCE AND ESTABLISHING HISTORIC LANDMARK STATUS FOR THE STRUCTURE AND REAL PROPERTY KNOWN AS THE KEOGAN "HOBBIT" HOUSE AND LOCATED AT 1922 PORTAGE AVENUE, IN THE CITY OF SOUTH BEND, INDIANA 09-12 THIRD READING ON A BILL OF THE COMMON COUNCIL OF THE CITY OF SOUTH BEND, INDIANA, AMENDING VARIOUS SECTIONS OF ARTICLE 9, OF CHAPTER 2 OF THE SOUTH BEND MUNICIPAL CODE BY THE INCLUSION OF NEW PROVISIONS ADDRESSING GENDER IDENTITY AND SEXUAL ORIENTATION 9. RESOLUTIONS BILL NO. 12-06 A RESOLUTION OF THE COMMON COUNCIL OF THE CITY OF SOUTH BEND, INDIANA, APPROVING A PETITION OF THE AREA BOARD OF ZONING APPEALS FOR THE PROPERTY LOCATED AT 17917 SR 23, SOUTH BEND, INDIANA 12-10 A RESOLUTION OF THE COMMON COUNCIL OF THE CITY OF SOUTH BEND, INDIANA, APPROVING A PETITION OF THE AREA BOARD OF ZONING APPEALS FOR THE PROPERTY LOCATED AT 1434 GARLAND CIRCLE 12-25 A RESOLUTION OF THE COMMON COUNCIL OF THE CITY OF SOUTH BEND, INDIANA, PROMOTING AND FACILITATING GREATER TRANSPARENCY AND ACCOUNTABILITY OF INDIVIDUALS APPOINTED BY THE COMMON COUNCIL TO VARIOUS CITY BOARDS AND COMMISSIONS AND THANKING THESE DEDICATED VOLUNTEERS FOR THEIR SERVICE TO OUR COMMUNITY 12-26 A RESOLUTION OF THE COMMON COUNCIL OF THE CITY OF SOUTH BEND, INDIANA, ENCOURAGING A RIVERFRONT REDEVELOPMENT DISTRICT ALONG THE BEAUTIFUL ST. JOSEPH RIVER 12-27 A RESOLUTION OF THE COMMON COUNCIL OF THE CITY OF SOUTH BEND, INDIANA, APPROVING AN ORDER OF THE ST. JOSEPH COUNTY AREA PLAN COMMISSION APPROVING A CERTAIN DECLARATORY RESOLUTION AND AN AMENDMENT TO THE SOUTH BEND CENTRAL DEVELOPMENT AREA DEVELOPMENT PLAN ADOPTED BY TE SOUTH BEND REDEVELOPMENT COMMISSION 10. BILLS, FIRST READING BILL NO. 10-12 FIRST READING ON A BILL OF THE COMMON COUNCIL OF SOUTH BEND, INDIANA, AMENDING INDIVIDUAL PARAGRAPHS WITHIN SECTION 2-84 . 13 AND SECTION 2-84 . 15 OF CHAPTER 2, ARTICLE 6 OF THE SOUTH BEND MUNICIPAL CODE ADDRESSING ANNUAL TAX ABATEMENT NOTICE AND REPORTING DATES 11 . UNFINISHED BUSINESS A. REPORT FROM AREA PLAN COMMISSION 1 . BILL 06-12 - AMEND CHAPTER 21 - MAKING MINOR CHANGE TO THE NNDA OVERLAY DISTRICT 12 . NEW BUSINESS 13. PRIVILEGE OF THE FLOOR 14 . ADJOURNMENT TIME: NOTICE FOR HEARING AND SIGHT IMPAIRED PERSONS Auxiliary Aid or Other Services are Available upon Request at No Charge. Please give Reasonable Advance Request when Possible. pc,)- RESOLUTION NO. A RESOLUTION OF THE COMMON COUNCIL OF THE CITY OF SOUTH BEND,INDIANA,ADOPTING A WRITTEN FISCAL PLAN AND ESTABLISHING A POLICY FOR THE PROVISION OF SERVICES TO AN ANNEXATION AREA IN CLAY TOWNSHIP (ALIBABA ANNEXATION AREA) WHEREAS, there has been submitted to the Common Council of the City of South Bend, Indiana, an Ordinance and a petition by all (100%) property owners which proposes the annexation of real estate located in Clay Township, St. Joseph County, Indiana, which is more particularly described at Section I of this Resolution; and WHEREAS, the territory proposed to be annexed encompasses approximately 1.42 acres containing a commercial building, and vacant land, which property is at least 12.5% contiguous to the current City limits, i.e., approximately 25.7% contiguous, generally located near the northeast corner of State Road 23 and Terrace Lane (17917 State Road 23). It is anticipated that the annexation area will be used for commercial purposes as permitted by the zoning ordinance. This site will require a basic level of municipal public services of a non-capital improvement nature, including police and fire protection, street and road maintenance, street sweeping, flushing, snow removal, and sewage collection, as well as services of a capital improvement nature, including street and road construction, sidewalks, street lighting, a sanitary sewer system, a water distribution system, and a storm water system and drainage plan; and WHEREAS, the South Bend Common Council now desires to establish and adopt a fiscal plan and establish a definite policy showing: (1) the cost estimates of services of a non-capital nature, including police and fire protection, street and road maintenance, street sweeping, flushing, and snow removal, and sewage collection, and other non-capital services normally provided within the corporate boundaries; and services of a capital improvement nature including street and road construction, street lighting, a sanitary sewer extension, a water distribution system, and a storm water system to be furnished to the territory to be annexed (2) the method(s) of financing those services; (3) the plan for the organization and extension of those services; (4) that services of a non-capital nature will be provided to the annexed area within one (1) year after the effective date of the annexation, and that they will be provided in a manner equivalent in standard and scope to similar non-capital services provided to areas within the corporate boundaries of the City of South Bend, regardless of similar topography, patterns of land use, and population density; (5) that services of a capital improvement nature will be provided to the annexed area within three (3) years after the effective date of the annexation within the same manner as those services are provided to areas within the corporate boundaries of the City of South Bend regardless of similar topography, patterns of land use, or population density, and in a manner consistent with federal, state and local laws, procedures, and planning criteria; and (6) the plan for hiring the employees or other governmental entities whose jobs will be eliminated by the proposed annexation. WHEREAS, the Board of Public Works of the City of South Bend, and the Board of Public Safety of the City of South Bend, have each approved a written fiscal plan and established a policy for the provision of services to the territory proposed to be annexed, which plan and policy the Common Council finds to be appropriate and in the best interest of the City, and, which it desires to adopt. NOW, THEREFORE, BE IT RESOLVED BY THE COMMON COUNCIL OF THE CITY OF SOUTH BEND, INDIANA, AS FOLLOWS: Section 1. It is in the best interest of the City of South Bend and the area proposed to be annexed that the following described real property located in Clay Township, St. Joseph County, Indiana be annexed to the City of South Bend: Beginning at the northwest corner of Lot 148, Maple Lane Subdivision; thence north along the current City .boundary to the south line of Lot 146 of said subdivision, also being the north right-of-way line of State Road 23; thence southwesterly, along said right-of-way line to the southeast corner of Lot 145; thence north, along the east line of said Lot 145 to the south line of Lot 143, also being the north right-of-way line of Dunn Road; thence west along the north right-of-way of Dunn Road 65.4', more or less, to a point of intersection with the west line of said Lot 145, extended; thence south, along said extended west line of Lot 145, 178'; thence west, parallel with the south right-of-way line of Dunn Road, 115.4' more or less, to the east line of Lot 59, also being the west right-of- way line of Terrace Lane; thence south, along said right-of-way line, to the southeast corner of Lot 57; thence southeasterly across State Road 23, to the northwest corner of Lot 3, Rockhill's 2�d Addition, also being the south right-of- way line of State Road 23; thence northeasterly along said right-of-way line to the point of beginning. Section II. It shall be and hereby is now declared and established that it is the policy of the City of South Bend, to furnish to said territory services of a non-capital nature, such as police and fire protection, street and road maintenance, street sweeping, flushing, and snow removal, within one (1) year of the effective date of the annexation in a manner equivalent in standard and scope to services furnished by the City to other areas of the City regardless of similar topography, patterns of land utilization, and population density; and to furnish to said territory, services of a capital improvement nature such as street and road construction, sidewalks, a street light system, a sanitary sewer system, a water distribution system, a storm water system and drainage plan, within three (3) years of the effective date of the annexation in the same manner as those services are provided to areas within the corporate boundaries of the City of South Bend regardless of similar topography,patterns of land use, or population density. Section 111. The South Bend Common Council, shall and does hereby now establish and adopt the Fiscal Plan, attached hereto as Exhibit "A", and made a part hereof, for the furnishing of said services to the territory to be annexed, which provides, among other things, that the public sanitary sewer and water network is available with capacity sufficient to service this area with fees for prior main line extensions due upon application for a tap permit and any improvements in sewer or water capacity to be paid by the developer in compliance with State and Local law; that no additional street lighting will be necessary; and that no new roads or streets will be required with the existing boundary streets of Terrace Lane and Dunn Road to be maintained by County and City under a mutually agreeable plan. Section IV. it is a further condition of annexation that any sewer main line extension will be done at the developer's expense, but that the developer may continue to rely temporarily on its septic system. Upon failure of the septic system after the effective date of annexation, the developer will be responsible for connection to the City's main line provided that the main line has been extended reasonably proximate to the developer's property line. If this extension has not occurred at the time of septic failure, the developer may continue to use a septic system at its sole expense. Section V. This Resolution shall be effective from and of the date of adoption by the Common Council and approval by the Mayor. Member, South Bend CAim4ri Council aiil adon on INS 1a tWed in, E`RESENTED }` , NOT APPROVED SQV xx I200 COUNTY-CXTX BUIX.DING PHONE 574 23 S'"9 71 22.7 W JEFFERSON BOUXXVARD (� \\�\ r ��i d FAx /2 574 35-9 021 SOUTH BEND,INDIANA 466o1-1830 t. r 7865 CITY of SovTx BFND PF- TF. B=GIF.G, MAYOR COMMUNITY & ECONOMIC DEVELOPMENT March 5, 2012 9/A r Mr. Derek Dieter,Presi ent South Bend Common Council 4th Floor, County-City Building RE: A Resolution of the Common Council of the City of South Bend, Indiana,Adopting a Written Fiscal Plan and Establishing a Policy for the Provision of Services to an Annexation Area in Clay Township(Alibaba Annexation Area) Dear Mr. Dieter: I am attaching for filing the aforementioned resolution,which is a companion to Bill No. 82-11. This Bill proposes to voluntarily annex contiguous territory in Clay Township to the City of South Bend. The resolution provides for the Common Council's approval and adoption of the written plan and policy concerning the provision of services, both capital and non-capital, to the territory to be annexed. This 1.42-acre annexation area includes parcels on the northeast corner of State Road 23 and Terrace Lane and adjacent right-of-way. All public improvements, if any, will be required to be done at the expense of the developer. I request that the attached resolution be placed on the March 26, 2012, agenda of the Common Council meeting at which the companion Bill is given Second Reading. I will be attending the meeting, as well as the appropriate Committee hearing, as the presenter. If you have any questions, please feel free to contact me at 235-5843. Thank you. Sincerely, . Cie e s �D tled it'd . . ,F Michael P. Divita Planner ' cc: Janice Talboom, City Clerk's Office I' CommuNm DEm.OPMENT ECONOMSC DEVF,X•OPMF.NT PAMELA C.MEYER DONALD E.INaB 5741235-9660 5741235-9377 P=574123 5-9469 THE CITY OF SOUTH BEND FISCAL PLAN 5 AN E N AREA P dw x xK�b [ Pete But igiep Mayor E South Bend Com n ouncil * , Tim Sco tfw t., Vg Henry Davis, Jr� 4y F Yq . Valerie SChey Y , e . < Fred Ferlic i �t k�w�g David Varner : Oliver Davis .,. Derek Dieter eter Gavin Ferlic Karen White zt, Prepared By % of South Bend Division of ommunity Development 227 W. J erson Blvd., Suite 1200 S Sou BendrW@46601 Pamela C. er erector Michael Diva a 1 , nn a Exhibit "A" January Won Alibaba Annexation Area 2 TABLE OF CONTENTS SECTION I. INTRODUCTION ............................................................. 3 SECTION II. GENERAL DATA............................................................... 3 A. Location B. Legal Description C. Contiguity D. Size of Annexation Area E. Buildings and Land Use F. Zoning & Subdivisions G. Population H. Tax Rate I. Assessments J. Municipal Legislative District K. Hiring Plan SECTION III. MUNICIPAL SERVICES.................................................... 5 A. Public Works B. Police Department C. Fire Department & EMS D. Code Enforcement E. Environmental Services F. Administrative Services SECTION IV. LAND USE ANALYSIS & DEVELOPMENT CRITERIA .......... 9 SECTION V. FISCAL IMPACT.............................................................. 10 Fiscal Impact: TABLE 1 ................................................................... 11 SECTION VI. APPROVAL...............................—..................................... 12 Legal Description ........................................................................... 13 Map:MAP 1 ..................................................................................... 14 Alibaba Annexation Area 3 SECTION I. INTRODUCTION This Fiscal Plan represents the City of South Bend's (hereinafter, "City") policy for the annexation of property in Clay Township, St. Joseph County, Indiana (hereinafter, "Annexation Area"), and was developed through the cooperative efforts of the Area Plan Commission and the following City Departments: Legal Department Department of Public Works South Bend Fire Department South Bend Police Department Department of Code Enforcement Department of Community and Economic Development Department of Administration and Finance SECTION II. GENERAL DATA A. Location The Annexation Area is generally located at the northeast corner of State Road 23 and Terrace Lane (17917 State Road 23). See Map 1. B. Legal Description The Annexation Area is part of the Northwest Quarter (1/4) of the Southwest Quarter (1/4) of Section Thirty-Two (32), Township Thirty-Eight (38) North, Range Three (3) East, in Clay Township, St. Joseph County, Indiana. The Annexation Area includes Lot 145 and a part of Lot 144 in the Maple Lane Subdivision. For a complete legal description, see Page 13. C. Contiguity The Annexation Area is at least 1/8 (12.5%) contiguous to the current City limits: Contiguous 345 feet 25.7% Non-Contiguous 999 feet 74.3% Total 1,344 feet 100% D. Size of Annexation Area The Annexation Area is approximately 1.42 acres in area. E. Buildings and Land Use The Annexation Area contains one vacant commercial building and vacant single-family residential land. Alibaba Annexation Area 4 F. Zoning & Subdivisions The properties in the Annexation Area are currently zoned "B" Business District and "R" Single Family District in St. Joseph County. With the annexation petition, the petitioner is seeking to rezone all of the western property and approximately the southern two-thirds of the eastern property to "LB" Local Business District in the City. The petitioner additionally requires a special exception to establish the proposed billiard hall use. Per City ordinance, the balance of the eastern property will automatically be zoned "SFI" Single Family and Two Family District upon annexation. G. Population Zero (0) persons currently reside in the Annexation Area, and no residents are proposed to live in the Annexation Area. H. Tax Rate The tax rates used are those of 2010 payable 2011. The total tax rate for unincorporated Clay Township is 2.4141 per $100 of taxable real estate. The total tax rate for South Bend Clay Township is 5.2413 per $100 of taxable real estate. Per HEA 1001, the tax caps expressed as a percentage of the gross assessed value for different classifications of property are as follows, regardless of the property's location being within South Bend or unincorporated St. Joseph County: Property Type ! a Homestead 1.0% Non-Homestead Residential 2.0% Agricultural 2.0% other commercial 3.0% 1. Assessments 2010 payable 2011, St. Joseph County Auditor property tax records: Land: $99,900 Improvements: $85,200 Total (Gross): $185,100 Total (Net): $185,100 3. Municipal Legislative District The Annexation Area will be in the 4th District. K. Hiring Plan It is anticipated that this annexation will not result in the elimination of jobs for employees of any other governmental entities. The Clay Township Trustee has been notified of this proposed Annexation. Alibaba Annexation Area 5 SECTION III. MUNICIPAL SERVICES A. Public Works Sewer - No sewer lines abut the property. The nearest sewer available is on Ironwood Drive, approximately 500 feet to the southwest. A sewer extension and connection would be done at the petitioner's expense. The petitioner may continue to rely temporarily on the property's septic system. Upon failure of the septic system after the effective date of annexation, the petitioner will be responsible for connection to the City's main line provided that the main line has been extended reasonably proximate to the petitioner's property line. If this has not occurred at the time of septic failure, the petitioner may continue to use a septic system at its sole expense. Water - The South Bead Water Works currently has a 12" water main on the south side of State Road 23 and a 6" water main on the west side of Terrace Lane. The main on Terrace Lane is a dead-end main that terminates at Dunn Road. A 1" service line tapped off the Terrace main has a listed address of 17917 East State Road 23. The nearest flow test data is at Maple Lane and Roosevelt Street, about 650 feet from the Annexation Area. A flow test on October 28, 2010, indicated a static pressure of 49 psi, residual pressure of 42 psi, and a flow rate of 948 gallons per minute. There is sufficient capacity for the Annexation Area. Extensions of, or taps into sanitary sewer and water lines shall be governed by I.C. 36-9-22- 2, I.C. 8-1.5-3 and 4, and the rules and regulations of the South Bend Water Works and Sewer Utility. Street Lighting - No additional street lighting will be necessary. The existing street lighting system adequately covers this area. Waivers of Annexation - A waiver of right to remonstrate against annexation is in effect for this area. Street;- State Road 23 is a state highway and will continue to be maintained by the Indiana Department of Transportation. If the annexation proceeds, the City and County will confer to mutually agree on a maintenance plan for the boundary streets of Terrace Lane and Dunn Road. No capital expenditure will be needed to extend sweeping and snow removal service to the area. Gas tax reimbursements to the Motor Vehicle Highway Fund pay for operation of the service. 2011 Actual Budget Report for the Department: Expenditures: $9,402,157 Miles of Roadway in City: @499.3 Cost per Mile: @$18,830 New Mileage within Area: @0.04 miles (220 feet) Estimated Maintenance cost for Annexation Area per year: @$753 Alibaba Annexation Area 6 B. Polite Department The Annexation Area would be expected to be added to the existing Beat 11. Police patrols, traffic enforcement, and emergency responses will be part of the services the City will offer to this area. This proposed annexation would require officers to cover a relatively small additional area to this beat. At this time, it is not expected that this annexation would cause calls for service to increase significantly and it is not anticipated that it will be necessary to increase police patrols beyond the existing beat patrol. The area under consideration is not expected to cause any unusual problems. At the present time, the cost for servicing the proposed area is not expected to impact the existing budget of the Police Department with any significance. However, this area, as well as all other areas of the City, will continually be monitored for level of service demands and other criteria that would necessitate additional resources through budgetary increases or possible shifting of existing resources, such as a beat restructure. Police services and response time in this area can be expected to be comparable and consistent with that as in all other areas of the City. Police coverage to this area could begin immediately upon annexation. Note: The cost of service for this Annexation Area is based on the number of parcels. Household information is provided for comparative purposes. Although the Annexation Area is technically two parcels having three tax identification numbers, it contains a single commercial use constructed over the property line. Thus, for calculations throughout this document, the Annexation Area is considered to contain one parcel. 2011 Actual Budget Report for the Department: Expenditures (including pension cost): $34,921,936 Number of Households in City (2010): @39,760 Cost per Household: @$878 Number of Parcels in City (2011): @48,360 Cost per Parcel: @$722 Proposed Number of Households in Area. 0 Number of New Parcels: 1 Cost for Annexation Area per year: $722 (1 parcel x $722 / parcel) C. Fire Department Fire Response - The South Bend Fire Department provides a fully staffed, full-time fire department. The Annexation Area will be serviced primarily by Fire Station #3, located at 1805 McKinley Avenue, approximately 1.83 miles away. Additional Fire Department Units would respond from Fire Station #9 at 2520 Mishawaka Avenue, which is approximately 2.81 miles away; Fire Station #7 at 1616 Portage Avenue, which is approximately 3.45 miles away; and Fire Station #2 at 402 Martin Luther King, Jr. Drive, which is approximately 3.40 miles away. Alibaba Annexation Area 7 The South Bend Fire Department does not foresee any unusual fire protection problems related to this annexation. Response times will be comparable to other areas of the City. No additional equipment will need to be purchased or personnel hired to service the Annexation Area. Adequate water supply will be necessary as development takes place. Emergency Medical Response -- The City, under contract with St. Joseph County, provides emergency medical response to the unincorporated areas of St. Joseph County. Of the seven ambulances currently in service, 3 are dedicated for response to the unincorporated areas. These are Medic Units #10, 11, and 12. The Annexation Area will be serviced by Medic #12, which is at Penn Township Fire Station #2, located at 13750 McKinley Highway, before annexation. After annexation this area will be serviced by Medic #3, which is at Fire Station #2, located at 402 Martin Luther King, Jr. Drive, and Medic #2, which is at Fire Station #1, located at 1222 S. Michigan Street. Emergency medical response will continue to be provided by the City of South Bend. Response times will be comparable to other areas of the City. No additional equipment will need to be purchased or personnel hired to service the Annexation Area. Emergency medical services are supported by user fees. Note: The cost of service for this Annexation Area is based on the number of parcels. Household information is provided for comparative purposes. 2011 Actual Budget Report for the Department: Expenditures (including pension cost): $27,594,700 Number of Households in City (2010): @39,760 Cost per Household: @$694 Number of Parcels in City (2011): @48,360 Cost per Parcel: @$571 Proposed Number of Households in Area: 0 Number of New Parcels: 1 Cost for Annexation Area per year: $571 (1 parcel x $571 / parcel) D. Code Enforcement The Annexation Area will be added to Area 4. The Department of Code Enforcement will be able to provide services to the Annexation Area with comparable response times. The Department will respond to calls for service upon the effective date of the Annexation. Full and dedicated response will be in place within one year of the effective date of the Annexation. 2011 Actual Budget Report for the Department: Expenditures: $2,202,537 Number of Parcels in City (2011): @48,360 Cost per Parcel: @$46 Proposed Number of Parcels in Area: 1 Cost for Annexation Area per year: $46 (1 parcel x $46 / parcel) Alibaba Annexation Area 111111 III IIIIIIII IIIIIIIIIIIIW II�PIIIIIIIIIII0111 1�11111111111111114W 1111WWW� E. Environmental Services Wastewater Treatment - Wastewater treatment services are supported by user fees, and are paid through the Water Works billing system. Solid Waste - Industrial, commercial, and apartment customers are generally not served by the Bureau of Solid Waste. However, the Bureau of Solid Waste could provide service to a commercial establishment within the Annexation Area if its trash fits into two toters. The customer would be charged the rate prevailing at the time of service. F. Administrative Services The City of South Bend provides a wide range of services other than those noted above, such as the Mayor's office, the Legal Department, and Parks & Recreation. These services are available upon the effective date of the Annexation. Full and dedicated response for non-capitaf services will be in place within one year of the effective date of the Annexation. Costs for these services have not been calculated. The incorporation of the Annexation Area will not affect the provision of other services currently provided to this property on a countywide basis. The St, Joseph County Health Department, the St. Joseph County Public Library, the Area Plan Commission, and the St. Joseph County/South Bend Building Department are among the countywide agencies that will continue to provide the same type and level of services to the Annexation Area. Countywide services will continue to be supported by the County and Township taxes that will remain in effect. Alibaba Annexation Area g SECTION IV. LAND USE ANALYSIS & DEVELOPMENT CRITERIA This proposed annexation will add one commercial building and single-family residential land to the City of South Send. The existing building is to be renovated, and the parking lot will be expanded. The Annexation Area is presently zoned "B" Business District and "R" Single Family District in St. Joseph County. Single-family homes also zoned "R" Single Family District in the County are located to the north. To the east is a building with two businesses zoned "B" Business District in the County. To the south, across South Send Avenue, is a dry cleaners zoned "LB" Local Business District and a bank zoned "CB" Community Business District, both in the City. To the west is a series of businesses zoned "C" Commercial District in the County. Any future changes will need to meet the City's applicable building and zoning ordinances. Alibaba Annexation Area 10 SECTION V. FISCAL IMPACT 1) Essential city services can be made available to the residents (and territory) of the Annexation Area in a timely and comparable fashion per the requirements of State law and this fiscal plan. 2) The City is financially able to support city services to the territory sought to be annexed. 3) Required improvements made by the petitioner and/or owner of the parcel(s) must be made in accordance with the standards of the City of South Bend. 4) Required improvements made by the City will be completed within the time frames provided by State law and this fiscal plan. 5) All figures are estimates. Final cost of capital expenditures, if any, will not be determined until bids are publicly solicited, contracts are awarded, and projects are closed out. 6) Property tax revenue and land assessment estimates are based on a combination of: 2010 payable 2011 tax information, taxes paid in previous years by a comparable development, estimates of units built, estimates of unit values and land assessments, and tax abatements or adjustments, if any. Tax rates are subject to change every year, and property tax revenues may be subject to tax caps. 7) Department expenditures and revenues are derived from the City of South Bend Budget, 8) The estimated costs to provide services, noted in Section III, Municipal Services, is a City- wide average based on a particular budget year, In the case of the proposed development in the Annexation Area, some of these services may not be required or possibly requested for many years. Hence, the cost of providing services over the first five years should be evaluated with this in mind. Alibaba Annexation Area 11 TABLE 1 Summary Table — Estimated Fiscal Impact Expenditures Capital Non-Capital p Est. Per Year Est. Notes 5-Year Total Street Construction $0 $0 Connection at Sewer Extension $0 petitioner's $0 -expense Water Extension $0 Existing $0 connection Street Lights $0 $0 Street Maintenance $0 $753 $3,765 Police $0 $722 $3,610 Eire $0 $571 $2,855 Code $0 $46 $230 Approximate 5-Year Expenditures $10,460 Revenues T Notes AF 5-Year Total Year 1 Year 2 Property Taxes Year 3 (to City) $15,650 Year 4 Year 5 $3,130 MVH/LRSA Estimated at revenue $468 $2,340 er mile of $11,707 Approximate 5-Year Revenues $17,990 Revenue estimate based on $185,100 net assessment and capped commercial tax rate of 3% of $185,100 gross assessment. Aiibaba Annexation Area 12 SECTION vI. APPROVAL Approved by the City of South Bend Common Council this day of 2012. Alibaba Annexation Area 13 LEGAL DESCRIPTION Beginning at the northwest corner of Lot 148, Maple Lane Subdivision; thence north along the current City boundary to the south line of Lot 146 of said subdivision, also being the north right-of-way line of State Road 23; thence southwesterly, along said right-of-way line to the southeast corner of Lot 145; thence north, along the east line of said Lot 145 to the south line of Lot 143, also being the north right-of-way line of Dunn Road; thence west along the north right-of-way of Dunn Road 65.4', more or less, to a point of intersection with the west line of said Lot 145, extended; thence south, along said extended west line of Lot 145, 178'; thence west, parallel with the south right-of-way line of Dunn Road, 115.4' more or less, to the east line of Lot 59, also being the west right-of-way line of Terrace Lane; thence south, along said right-of-way line, to the southeast corner of Lot 57; thence southeasterly across State Road 23, to the northwest corner of Lot 3, Rockhill's 2"d Addition, also being the south right-of-way line of State Road 23; thence northeasterly along said right-of-way line to the point of beginning. 1 Aiibaba Annexation Area 14 MAP 1 Alibaba Annexation Area z o.sha ®� Q 0 NORTH m aa�3 cjS e c x - ,, k a 17 cc a� z ct o m Z oaseveft U L L di 0 125 250 500 A[ibaba Annexatlon Area City of South Bend Fe et Prepared by City of South Fend Department of Community&Economic Development D@Cerar5A31.� — Filed in ' 4J ld a ORDINANCE NO. AN ORDINANCE TO VACATE THE FOLLOWING DESCRIBED PROPERTY; THE STREET TO BE VACATED IS A PORTION OF UNITED DRIVE (PRAIRIE AVENUE) FROM THE EAST RIGHT-OF-WAY OF SCOTT STREET TO THE SOUTH RIGHT-OF-WAY LINE OF THE NORFOLK AND SOUTHERN RAILROAD OVERPASS. A SECOND PORTION TO BE VACATED IS SAID UNITED DRIVE BEGINNING AT THE NORTH RIGHT-OF-WAY LINE OF SAID NORFOLK AND SOUTHERN RAILROAD OVERPASS THENCE NORTH TO THE SOUTH RIGHT-OF-WAY LINE OF SOUTH STREET STATEMENT OF PURPOSE AND INTENT Pursuant to Indiana Code Section 36-7-3-12, the Common Council is charged with the authority to hear all petitions to vacate public ways or public places within the City. The following Ordinance vacates the above described public property. NOW, THEREFORE, BE IT ORDAINED BY THE COMMON COUNCIL OF THE CITY OF SOUTH BEND, INDIANA, as follows: SECTION I. The Common Council of the City of South Bend having held a public hearing on the petition to vacate the following property: THE STREET TO BE VACATED IS A PORTION OF UNITED DRIVE (PRAIRIE AVENUE) FROM THE EAST RIGHT-OF-WAY OF SCOTT STREET TO THE SOUTH RIGHT-OF- WAY LINE OF THE NORFOLK AND SOUTHERN RAILROAD OVERPASS FOR A DISTANCE OF 750 FEET, PLUS OR MINUS AND A WIDTH OF 80 FEET. A SECOND PORTION TO BE VACATED OF SAID UNITED DRIVE BEGINNING AT THE NORTH RIGHT-OF-WAY LINE OF SAID NORFOLK AND SOUTHERN RAILROAD OVERPASS THENCE NORTH TO THE SOUTH RIGHT-OF-WAY LINE OF SOUTH STREET FOR A DISTANCE OF 63.49 FEET, MORE OR LESS AND A WIDTH OF 80 FEET. SAID RIGHT- OF-WAY BEING A PART OF STUDEBAKER CORP. REPLAT AND STATE BANK OF INDIANA PLAT OF OUTLOTS, TOWN (NOW CITY) OF SOUTH BEND, PORTAGE TOWNSHIP, ST. JOSEPH COUNTY, INDIANA Hereby determines that it is desirable to vacate said property. SECTION 11. The City of South Bend hereby reserves the rights and easements of all utilities and the Municipal City of South Bend, Indiana, to construct and maintain any facilities, including, but not limited to, the following: electric, telephone, gas, water, sewer, surface water control structures and ditches, within the vacated right-of-way, unless such rights are released by the individual utilities. SECTION III. The following property may be injuriously or beneficially affected by such vacating: 018-3043-1655 018-3043-165407 01 8-3043-165408 018-3043-165409 SECTION IV. The purpose of the vacation of the real property is to create and further development opportunities on the former Millennium Environmental site and allow connectivity through development to the Union Station site and the Ivy Tower complex. SECTION V. This ordinance shall be in full force and effect from and after its passage by the Common Council and approval by the Mayor. Member of the Common Council Attest: ®pponuni" ii i :st 6Vi"i and City Clerk _GOunw adon on ihis i ue ter,., Presented by me to the Mayor of the City of South Bend, Indiana on the day of , 2 , at o'clock M. City Clerk Approved and signed by me on the day of , 2 , at o'clock M. Mayor, City of South BpnAJgdiE1na q i P(�CC//��D[� G I Si C Ll'iV I�� PupLiC FIZA RING FE NOT ]7APnPROVO PASSER 3 res� r � � sii-w4a-Tesa ass-aoea-fps $DLITN 8T -. / 9Td-9ad.9-TCyw4 A / I 61i-88141T8a / 848 '-�/ a F-10-3844-1884 (8.8844-1668 8+8-I8M-1683 / t / / a 150' / 0 616•a61a-+is461 a' LEGAL DESCRIPTION: The street to be vacated is a portion of United Drive (Prairie Avenue) from the East right of way of Scott street to the South right of way line of the Norfolk and Southern railroad over pass for a distance of 750 feet, plus or minus and a width of 80 feet. A second portion of said United Drive starting at the North right of way line of said Norfolk and Southern railroad over pass then North to the South right of way line of South Street for a distance of 63.49 feet, more or less and a width of 80 feet. Said right of way being a part of Studebaker Corp Replat and State Bank of Indiana Plat of Outlots, Town now City of South Bend, Portage . cels County Parcels MAILINGAD MAIL PRO MAILIN PROP ADD P_S PROP ZI Rec PARCELII3 NAME-1 U MAILINGClT INGS GZfP R PROP CITY TAT P TA E CITY OF SOUTH BEND 7009 2820 0003 9311 0188 018-3043- BUILDING CORPSEE 1400 County- 101 W 1 165404 NOTES City Bldg South Bend IIN 46601 SAMPLE South Bend IN 46619 7009 2820 0003 9311 02 01, 018-3046- NELSON D€E LLCSEE 840 Unite T- 2 1772 NOTES Dr South Bend IN 46601 UNITED DR South Bend IN 46601 MECHANICS LAUNDRY& 7009 2 8 2 0 0003 9 311 0 218 SUPPLY INC CIO CINTAS 6800 Cintas 018-3044- CORPORATION I2/2003 Blvd Po Box $35 PRAIRIE 4 168801 PROB DEED SURVEY 625737 Cincinnati 1OH 45262 AVE 46625 018-3044- MODEL COVERALL 717 S Scott 7009 2 8 2 0 0003 9 311 0225 5 1688 SERVICE INC. 1q, South Bend IN 46601 717 SCOTT 46625 7009 2820 0003 9311 0232 018-3044- AB CUSTOM FABRICATING PO BOX 61:1683 LLC 4742 South B 46621 7009 2820 0003 9331 0249 018-3044- A B CUSTOM FABRICATING co 707 S 7.1664 LLC St South Bend IN 46601 SCOTT ST 46621 018-3043- P O Box 600 PRAIRIE 8165408 IVY TOWER CORP 1228 South Bend IN 7010 2783 0000 5580 5727 7010 2780 3000 5580 5734 600 VAC 018-3043- flu t5ox LOT ON 9 165409 IVY TOWER CORP 1228 South Bend IN 46624 PRAIRIE AV 46625 CITY OF SOUTH BEND FOR 227 W 7013 2780 3000 5580 5741 018-3043- THE USE AND BENEFIT OF Jefferson 604S 1.0 1655 DEPT OF R€DV Blvd ste1200 1 South Bend IN 46601 SCOTT South Bend IN 46616 7010 2780 0000 5583 5758 18 LOT ON 018-3043- CITY OF SOUTH BEND 1400 County PRAIRIE= E12 165407 BUILDING CORP City Bldg South Bend IN 46601 7.803 AC AV 46618 Oe t _ ORDINANCE NO. AN ORDINANCE OF THE COMMON COUNCIL OF THE CITY OF SOUTH BEND, INDIANA,AMENDING THE ZONING ORDINANCE AND ESTABLISHING HISTORIC LANDMARK STATUS FOR THE STRUCTURE AND REAL PROPERTY KNOWN AS THE KEOGAN "HOBBIT" HOUSE AND LOCATED AT 1922 PORTAGE AVENUE,IN THE CITY OF SOUTH BEND, INDIANA STATEMENT OF PURPOSE AND INTENT The building located at 1922 Portage Avenue (the "Property'), in the City of South Bend, Indiana, is known as the Keogan "Hobbit" House, in part by its association with George Keogan, famed Notre Dame coach and in part due to the structure's unique design and construction. The owner of the Property has petitioned the Historic Preservation Commission of South Bend and St. Joseph County (the "Commission") to have the Property designated as a Historic Landmark pursuant to South Bend City Ordinance No. 5565-73, as amended. The Property is located within the proposed Woodlawn-Kessler Historic District, in the northwest section of South Bend. The home was built in 1928 and is recognized in the Indiana Historic Sites and Structures Inventory of South Bend with a rating of "Notable" meaning that the property is above average and that further research may reveal that the Property is eligible for National Register listing. The staff of the Commission has prepared a report and recommendation for the Commission. The Commission has reviewed the request and the Consent of the owner and has heard and discussed the recommendation of the staff for the designation of the Property as a Historic Landmark. Based on the HPC's Local Landmarks Criteria as adopted by the Common Council, the site at 1922 Portage Avenue has been recommended to the Common Council for designation as a Local Historic Landmark by the Historic Preservation Commission. The building meets the criteria in at least three areas. I. Its embodiment of elements of architectural design, detail, materials or craftsmanship which represent an architectural characteristic or innovation. The building .fulfills criteria #1 as an excellent example of an unusual blend of architectural elements from the English Arts and Craft movement and the Tudor Revival style interpreted in the American Craftsman/Bungalow style. The house is rated "Notable" in the 2005 Survey as an English Cottage built in 1928 and is unique in South Bend. It was constructed by the local General Contractor, R. L. Culp, and all of its materials and appointments were originally from local vendors and merchants. 2. Its suitability for preservation. The building fulfills criteria #2 by the integrity of its original construction with only minor alterations. Alterations are limited to the addition of terraces flanking the modified entry and the removal or enclosure of the south bay window. 3. Its identification with the life of a person or persons of historical significance. The building fulfills criteria #3 by its association with George E. and Ruby J. Keogan and Aaron Huguenard. George Keogan was named Notre Dame's basketball and baseball coach and assistant football coach in 1923. In 20 seasons as the basketball coach, he won 327 games, the second most in Irish History, a .771 winning percentage. He never had a losing season at Notre Dame. He was succeeded by his protdgd, Edward "Moose" Krause, after his death at age 53. Mrs. Keogan inherited the house and later married Aaron Huguenard in 1950. Mr. Huguenard was the Secretary of the South Bend Tribune and the former President of the Indiana Bar Association. He was active in civic, legal, social, political and business circles. In 1951, he founded the United Fund of St. Joseph County, in 1952, St. Joseph County Hospital Development, Inc. He was appointed in 1955 as a Charter member of the University of Notre Dame Law School Advisory Council. The Commission has conducted a public hearing, for the purposes of hearing continents on the designation of the Property as a Historic Landmark and for delivering a recommendation to the Common Council. Following the public hearing, the Commission has given its favorable recommendation to the Common Council of the City of South Bend to designate the Property as a Historic Landmark pursuant to Ordinance No. 5565- 73, as amended. NOW, THEREFORE, BE IT ORDAINED BY THE COMMON COUNCIL OF THE CITY OF SOUTH BEND, INDIANA, AS FOLLOWS: Section 1. Designation. The structure and real property known as the Keogan "Hobbit"House and located at 1922 Portage Avenue, in the City of South Bend, Indiana, shall be and hereby is designated and established as a Historic Landmark pursuant to Ordinance No. 5565-73, as amended. PROPOSED LOCAL LANDMARK 1922 PORTAGE AVENUE SOUTH BEND, INDIANA HISTORIC PRESERVATION COMMISSION OF SOUTH BEND AND ST.JOSEPH COUNTY DECEMBER 2011 VIAR - ! 202 r JQNNBOH 9T BROMIall ST m A4AMS sT �' GA C/} STOCKEK; .�� Q N e . 4 WOOD worm AVE 00 �M�y� dayOt�� I g � i �+ N go h "G r•ti U+ .M �* N ONC CGL.. A• O r� N a" O V O rraf 9, d n m W FC•i i•1 �' Fr �" n Fri . z 07 i;� o f ++� pG?' 0 A. ,J NN M oxnnn � n nnz nnnnn zn nn n g' °NO Q ,gyp. 0N0 o a, t~a o°a c �.y +�y x C GT N ON ip . cn p1 h4 00 o T f ^ ° . g g I ON 8 v ` 8 �' . N N ' Ct'N N N N N N N �0 00 V a} VNi rA W rN+ O �Pj 00 V 41 UI rWA. W N vi znn znx n nn nzn n z z n W 4<• °~0 00 0�0 y +`�j �I v V V V N N N �Nj r N N H W tJ VV �y i., D p W ►+ Vt W W W ►+ 1h �•+ �' m co �A. 0 0 x � n SL if n ° w $rte f' p Q �r o• �' � �' p- � to � e• a. �• �" ,p. R O to N N N N N N N N N N N N �N,y N N N N N Nyy W lJ1 IA• �C. �A• .R, iA �R. )P. W [�+ W Ch W W W W W �• N ►+ C \P CD V Q1 Li' W N f+ O V' C0 V W Op. W N �••� p W © n � nnz xnnnnn � nnn n nnn ° a '� r+ N i+ N M W ,0pWp. Ir W I.d 1p.. 1-•� u 6G•+� 1-+ I--. i•+ F+ A O O C 0�0 G� N O p N 4WY O b W OVI � xxnxx � �exxx � xxxxxx x � � � z �•�o -- �► CO O W� 0p g AR e� S? R .S! �'pn ° � � C � �1. � ° � � � O O Tn' � (f sa � P D C•R tw cm tol \0 �•A.l�:i\L Ifni 4`. .�L.'1,..:.5'.v..::1•:._r_ww:_F Nrr.,....:A .,:K�.r .. .. .e.. _. .. .. . ..... ._... .n- .,{. .. •'.t.l' .. ... v. ., n. .. ... ... :. . JOHN W. BYORNI EXECUTIVE DIRECTOR LARRY MAGLIOZZI DEPUTY DIRECTOR AREA PLAN COMMISSION OF ST. JOSEPH COUNTY, IN 227 W. JEFFERSON BLVD., ROOM 1140 COUNTY-CITY BUILDING, SOUTH SEND, INWANA 4640! 1574) 275-9571 February 22,2012 The Honorable Council of the City of South Bend 4th Floor, County-City Building I L� South Bend,IN 46601 RE: A proposed ordinance of James W. & Leora J. Clark,Trustees to zone from B Business District and R Single Family District(County)to LB Local Business District(City),property located at 17917 State Road 23,as tabled,City of South Bend-APC#2619-11 Dear Council Members: I hereby Certify that the above referenced ordinance of James W. & Lenora J.Clark,Trustees was legally advertised on Thursday,January 5, 2012 and that the Area Plan Commission at its public hearing on Tuesday,February 21,2012 took the following action: Upon a motion by John McNamara, being seconded by Donna Chamblee and unanimously carried, the proposed ordinance of James W.&Leora J. Clark, Trustees to zone from B Business District and R Single Family District(County)to LB Local Business District(City), property located at 17917 State Road 23, City of South Bend, is tabled is sent to the Common Council with a favorable recommendation.This small two-lot site with an abandoned commercial structure straddles two zoning districts. By expanding the zoning further north into the lot, it permits this site to accommodate a responsible reuse of the building and property,while protecting the last remaining residence on the block. The "LB"district can accomplish this within the context of the commercial area immediately adjacent to the south and west. The"LB"District allows a variety of smaller business uses that can locate on this site. PLEASE NOTE that the Ordinance has been amended by the petitioner and is different than that used for the Common Council's first reading. The amended Ordinance was legally advertised and heard by the Area Plan Commission. The deliberations of the Area Plan Commission and points considered in arriving at the above decision are shown in the minutes of the public hearing, and will be forwarded to you at a later date to be made a part of this report. Sincerely, C9 ` W ahn W. Byo f44"* JWB;jsc Attachment CC: James W.&Lenora J. Clark, Trustees Alibaba SERVING ST. JOSEPH COUNTY, SOUTH BEND, LAKEVILLE, NEW CARLISLE, NORTH LIBERTY, OSCEOLA, A ROSELAND W W W.5 Y J 0 5 E A W C 0 V N T Y f ND I ANA.C 0 MO A...p l a n sty APC# 2619-11 Owner: James W. &Leora J. Clark,Trustees Location: 17917 State Road 23 Jurisdiction: City of South Bend Requested Action: The petitioner is requesting a zone change from B Business District and R Single Family District (County)to LB Local Business District(City)to allow a billiard hall. Land Uses and Zoning: On site: On site is a vacant commercial building. North: To the north are single family homes zoned R Single Family District(County). East: To the east is a frame shop zoned B Business District(County). South: To the south is First Source Bank zoned CB Community Business District(City) and Ziker Cleaners zoned LB Local Business District(City). West: To the west is a multi tenant retail center, including two restaurants and a hair salon,zoned C Commercial District(County). District uses and development standards: The LB District is established to provide for small business groupings located outside of the village style mixed use concept and which provide for the full range of convenience uses necessary to meet the daily needs of nearby residential neighborhoods. Permitted uses within the LB Districts are regulated in character to assure harmonious development with the nearby residential districts served and are limited in size and scale to promote pedestrian access. Site plan description: The area to be rezoned is approximately 20,000 square feet. The rear 88'of the eastern lot is not being rezoned and will remain SF 1 Single Family and Two Family District. There is an existing 2,120 square foot building, and a proposed 880 square foot covered patio. Existing and proposed buildings cover 15% of the site. Paving covers 52% of the site. The remaining 33% is open space. Zoning and land use history&trends: This site has been vacant for many years, and is bordered by business and commercials uses on three sides. Several new uses have been have been added to the general area, including the Ziker Cleaners. The property at the southeast corner of State Road 23 and Maple Lane attempted an annexation and rezoning in 2010 but was ultimately withdrawn. Traffic and transportation considerations: State Road 23 is a four lane road with a center turn lane. Terrace Lane and Dunn Road both have two lanes. State Road 23 is a major arterial between South Bend and the residential and commercial areas to the north and east. Utilities: This site is currently served by city water and a septic system. Additional information: (Agency comments) Due to the increased use of the property, the Health Department requests a new septic permit or proof of connection to city sewer. INDOT says no permit is needed if the same drive is used. James W. & Leora J. Clark, Trustees #2619-11 Page 1 of 3 Stacy Comments: The Special Exception Use for a billiard hall was heard by the Area Board of Zoning Appeals on January 4, 2012 and was forwarded to the Common Council with an unfavorable recommendation. The Area Plan Commission staff gave the Special Exception Use an unfavorable recommendation, because it did not meet three of the four standards. The variances for building and parking setbacks, and foundation landscaping,were approved. The variances for reducing the number of required parking spaces and eliminating the residential bufferyard landscaping were denied. Since the property has split zoning, only the front half the building is within the B Business District zoning. Section 154.030(I)allows the zoning line,under certain criteria, to be extended to not more than forty feet beyond the boundary line of the district. This would extend the zoning line to include the building, but not the rest of the improvements such as the parking areas. Commitments: None proposed. 5 Criteria(per IC 36-7-4403): 1. Comprehensive Plan: Policy Plan- Cb Plan, South Bend Comprehensive Plan(November 2006 ED 1.2 Encourage reuse of abandoned and underutilized land and structures. Land Use Plan: The Future Land Use Map identifies the property fronting on State Road between Ironwood and Maple Lane as Commercial. The intersection of State Road 23 and Ironwood is identified as a Regional Commercial Node. Plan Implementation/Other Plans: a There is no other plan in effect for this area. 2. Current conditions and character: There are commercial uses on both sides of State Road 23 from Ironwood to Maple Lane with office uses further east. 3. Most desirable use: The most desirable use for this site is to have it develop to its full potential, while protecting the neighboring residential properties to the north. 4. Conservation of property values: Due to the proposed outdoor patio and controlled use activity, the neighboring residential properties may be negatively affected. 5. Responsible development and growth: It is responsible development and growth to support the appropriate reuse of vacant properties. Recommendation: Based on information available prior to the public hearing, the staff recommends the petition be sent to the Common Council with a favorable recommendation. James W. &Leora J. Clark, Trustees #2619-11 Page 2 of 3 coank P.Q.Box 1602 South Bend,Indiana 46634 RECEIVED January 9, 2012 JAN 12 2012 Area Plan Commission of St. Joseph County, Indiana AREA PLAN IrpMMlSSiaN 227 W. Jefferson Blvd, Room 1140 County City Building South Bend, IN 46601 RE: Billiard Hall - 17917 State Road 23, South Bend, IN 46635 To Members of the Area Plan Commission: I am writing to you to voice 1 st Source Bank's objection to the zoning change being sought for the above referenced property. 1st Source Bank operates its Maple Lane Banking Center in the very near vicinity of this property, and views this as an inappropriate usage for this residential and business neighborhood. The subject property has limited parking and the surrounding businesses will suffer the negative consequences caused by the overflow parking in our parking lots from this type of business. Accordingly, I ask that you deny the request to change the zoning being sought. Thank you for your consideration. in r , grid Mathias Manager, Real Estate Assets CC: Real Estate Lease t=ile Page 1 of 1 Janice Talboorn - Alibaba Annexation Area Schedule From: Michael Divita To: Janice Talboom Date: 1/18/2012 3:47 PM Subject: Alibaba Annexation Area Schedule CC: Christa Nayder Hi Janice, As you may know, the annexation/rezoning petition for the Alibaba Annexation Area was tabled at the January Area Plan Commission meeting Tuesday. With this delay, below is the tentative new schedule: APC Public Hearing: 2/21/12 APC Report to Council: 2/27/12 Council Advertisement: 3/2/12 Resolution to Clerk: by 3/21/12 2nd Reading: 3/26/12 3rd Reading: 4/9/12 Advertised/Appeal Period Start: 4/20/12 Appeal Period End/Annexation Effective: 5/20/12 I understand from APC that the special exception for this property is scheduled for public hearing and consideration at the February 13 Common Council meeting but could be tabled to match the timing of the fiscal plan and annexation/rezoning. Please let me know if you have any questions or if I've made any errors in the schedule. Thanks! Michael Divita Planner City of South Bend Department of Community& Economic Development 1200 County-City Building 227 W. Jefferson Blvd. South Bend, IN 46601 Phone: (574) 235-5843 Fax: (574) 235-9469 mdivita @southbendin.gov file-//C..-1T)oeuments and SettlnasVTTALBOOMIT,ocal SettingslTemn\XPurowi.qe14F16F9A I/IR/7(117. JOHN W. BYORNI EXECUTIVE DIRECTOR LARRY MAG-LIOZZI DEPUTY DIRECTOR AREA PLAN COMMISSION OF ST. JOSEPH COUNTY, IN 327 W.JEFFERSON BLVD. ROOM 1 140 COUNTY-CITY BLDG. SOUTH BEND.INDJANA 46601 (574)235-9571 January 18,2012 The Honorable Council of the City of South Bend 4th Floor, County-City Building South Bend, IN 46601 RE: A proposed ordinance of James W. & Leora J. Clark, Trustees to zone from B Business District and R Single Family District(County)to LB Local Business District(City), property located at 17917 State Road 23, City of South Bend -APC#2619-11 Dear Council Members: 1 hereby Certify that the above referenced ordinance of James W. & Lenora J. Clark, Trustees was legally advertised on Thursday, January 5,2012 and that the Area Plan Commission at its public hearing on Tuesday,January 17, 2012 took the following action: Upon a motion by Karl King, being seconded by Robert Hawley and unanimously carried, the proposed ordinance of James W. & Leora J. Clark, Trustees to zone from B Business District and R Single Family District(County)to LB Local Business District(City), property located at 17917 State Road 23, City of South Bend is tabled until the February 21, 2012 meeting of the Area Plan Commission. The deliberations of the Area Plan Commission and points considered in arriving at the above decision are shown in the minutes of the public hearing, and will be forwarded to you at a later date to be made a part of this report. Sincerely, \—�A� Zr4ni � n W. JWB jsc Attachment CC: James W. & Lenora J. Clark, Trustees Aliabad Cafe LLC SERVING:5T.JOSEPH COUNTY.SOUTH BEND,LAKEVILLE,NEW CARLISLE.NORTH UsERTY.OSCEOLA 8,ROSELAND www.sijosephcountyin dlann.comfAreap tan %tkin 6' I-fdll, LLP ATTORNEYS AT LAW SUITE 400.JEFFERSON CENTRE 105 EAST JEFFERSON BOULEVARD SOUTH BEND.INDIANA 46601-1913 TELEPHONE:(574)234-3900 Bruce A Huntington FACSIMILE;(r.74)238-2839 bdh@bhlawyemnet www.botkinhaII,C0M January 17,2012 John Byorni,Executive Director Area Plan Ccoinmission of St.Joseph County. County-City Building, Suite 1100 227 West Jefferson Blvd. South Bend,Indiana 46601. Re: Matter of the Rezoning of Property at 17917 SR 23, South Bend From B—Business Commercial and R 1 Single Family to LB—Local Bsuisness Dear Mr. Byorni: 1 represent the trusts of James and Leora Clark which, by and through their respective trustee, Sharon Smith, have petitioned for the rezoning of the above captioned parcel and for the annexation thereof to the city of South Bend. Please be advised that not all matters related to the transfer of title to parties other than the trusts have not yet been resolved and accordingly, the trusts hereby request that this matter be tabled as to rezoning and all other related matters before the Commission scheduled for hearing today at 3:30 pm. Your kind assistance in this matter is greatly appreciated. Sincerely, BOTKIN& LL, LL Bruce D.Hunti gton i RECEIVED JAN 17 2012 AREA PLAN COMMISSION ORDINANCE NO. AN ORDINANCE OF THE COMMON COUNCIL OF THE CITY OF SOUTH BEND, INDIANA,ANNEXING TO AND BRINGING WITHIN THE CITY LIMITS OF SOUTH BEND,INDIANA,AND AMENDING THE ZONING ORDINANCE FOR PROPERTY LOCATED IN CLAY TOWNSHIP,CONTIGUOUS THEREWITH; COUNCILMANIC DISTRICT 4 Name of Petition:Alibaba Cafe Inc Common Address 17917 SR 23, South Bend, IN 46635 STATEMENT OF PURPOSE AND INTENT A Petition for the voluntary annexation and for the zoning of 1.4 acres located in Clay Township, St. Joseph County, Indiana, has been filed by loo 0 of the owners of the land in the territory sought to be annexed and zoned. It is the intent and purpose of this Ordinance to annex this territory to the City of South Bend, Indiana, and to establish a zoning district for this territory. NOW THEREFORE BE IT ORDAINED by the Common Council of the City of South Bend, Indiana as follows: SECTION I. That the following described real estate situated in St.Joseph County, Indiana, being contiguous by more than one-eighth (1/8) of its aggregate external boundaries with the present boundaries of the City of South Bend,Indiana, shall be and hereby is annexed to and brought within the City of South Bend: Beginning at the northwest corner of Lot 148, Maple Lane Subdivision; thence north along the current City boundary to the south line of Lot 145 of said subdivision, also being the north right-of-way line of State Road 23; thence north, along the east line of said Lot 145 to the south line of Lot 143, also being the north right-of-way line of Dunn Road; thence west along the north right-of-way line of Dunn Road 65.4', more or less, to a point of intersection with the west line of said Lot 145, extended; thence south, along said extended west line of Lot 145, 178'; thence west,parallel with the south right-of-way line of Dunn Road, 115.4'more or less, to the east line of Lot 59,also being the west right-of-way line of Terrace Lane; thence south, along said right-of-way line, to the southeast corner of Lot 57; thence southeasterly across State Road 23, to the northwest corner of Lot 3, Rockhill's 2nd Addition, also being the south right-of-way line of State Road 23; thence northeasterly along said right-of-way line to the point of beginning. SECTION II. That the boundaries of the City of South Bend,Indiana, shall be and are hereby declared to be extended so as to include the real estate of the above described parcel as a part of the City of South Bend, Indiana. SECTION III. Ordinance No. 9495-04, as amended,which ordinance is commonly known as the Zoning Ordinance of the City of South Bend,Indiana,be and the same hereby is amended in order that the zoning classification of the following described real estate, with the exception of all adjacent rights-of-way, in the City of South Bend, St. Joseph County, State of Indiana be and the same is hereby established as LB Local Business District; provided,however,that the required, established, and stated procedures for review of such zoning classification by the Area Plan Commission have been fully satisfied: Lot 144,except the north 128 feet,and Lot 145, except the north 87 feet, Maple Lane Subdivision. SECTION IV. This Ordinance shall be in full force and effect 3o days from and after its passage by the Common Council, approval by the Mayor, and legal publication. MEMBER OF THE COMMON COUNCIL Attest: City Clerk Presented by me to the Mayor of the City of South Bend, Indiana on the day of , 2a ,at o'clock .m. City Clerk Approved and signed by me on the day of 20 , at o'clock .m. Mayor, City of South Bend, Indiana Filed zE,'rw. E lc�f' n A[CCr1 JOHN W. BYORNI EXECUTIVE DIRECTOR LARRY MAGLIOIZI DEPUTY DIRECTOR AREA PLAN COMMISSION OF ST. JOSEPH COUNTY, IN 221 W, JEFFERSON BLVD— ROOM IT 40 COIJKlY.C11Y BU1I,DtHo. SOUTH BENA. INDIANA 46601 15741 235.V571 December 16, 2011 Honorable Common Council Of The City of South Bend 4,h Floor, County-City Building South Bend, Indiana 46601 RE: Bill # 82-11 A bill of the Common Council of the City of South Bend amending Chapter 21 of the zoning ordinance. Dear Council Members: The following changes have been made to the Ordinance for the above-referenced petition: Ordinance: 1) Annexation legal description: All references to "Hepler Street" were changed to "Dunn Road". If you have any further questions, please call me at 574-235-9571. Sincerely, �", 4 Christa Noyder Planner SERVING ST. JOSEPH COUNTY. SOUTH $END, tAKEVILLE, NfW CARLISLE, NORTH LIBERTY, 03CEOI.A. E ROSELAND W W W 57 J 05 E PH C 0 U N 7 Y IND I ANA.CC Ordinance No. AN ORDINANCE OF THE COMMON COUNCIL OF THE CITY OF SOUTH[BEND, INDIANA,AMENDING VARIOUS SECTIONS OF ARTICLE 9,OF CHAPTER 2 OF THE SOUTH BEND MUNICIPAL CODE BY THE INCLUSION OF NEW PROVISIONS ADDRESSING GENDER IDENTITY AND SEXUAL ORIENTATION STATEMENT OF PURPOSE AND INTENT As Mayor Pete Buttigieg noted in his swearing-in speech on January 1, 2012, "In setting the vision for local government,it helps to recall why city government exists in the first place: to enable people to go about their lives and focus on what really matters. Leading a healthy, happy life is enough of a challenge without having to worry about basic services." Thus, it is in this spirit that the current South Bend Human Rights Ordinance should be amended to prohibit discrimination based on sexual orientation and gender identity, and to provide remedies for such discrimination occurring within the city limits. This legislative initiative is in accordance with the Resolution of the South Bend Human Rights Commission dated June 17, 2010; with former Mayor Stephen J. Luecke's Executive Order 1-2009; and with the South Bend Human Rights Commission Position Statement adopted on January 19,2005 and formally sent to the South Bend Common Council on March 10,2005. The proposed regulations are believed to be reasonable and necessary and in the best interests of the City of South Bend,Indiana. NOW, THEREFORE, BE IT ORDAINED BY THE COMMON COUNCIL OF THE CITY OF SOUTH BEND,INDIANA,as follows: SECTION 1. Chapter 2, Article 9 of the South Bend Municipal Code (Human Rights Ordinance)shall be and hereby is amended at Section 2-127 to read as follows: Sec. 2-127.Purpose. (a) It is the public policy of the City of South Bend to provide all of its citizens equal opportunity for education,employment, access to public conveniences and accommodations,and acquisition through purchase or rental of real property including,but not limited to,housing, and to eliminate segregation or separation based on race, religion, color, sex, disability, national origin,4w ancestry, sexual orientation or gender identity, and familial status in housing, since such segregation is an impediment to equal opportunity.Equal education and employment opportunities and equal access to and use of public accommodations and equal opportunity for acquisition of real property including but not limited to housing are hereby declared to be civil rights. Ordinance No. (b) The practice of denying these rights to properly qualified persons by reason of race, religion, color, sex, disability,national originier ancestry, sexual orientation or gender identity, or familial status in the case of housing of such person is contrary to the principles of freedom and equal opportunity, and is contradictory to the objectives of the public policy of this City and shall be considered discriminatory practices. The promotion of equal opportunity without regard to race, religion, color, sex, disability, national origin of ancestry, sexual orientation or eg nder identilL or familial status in the case of housing,through reasonable methods is the purpose of this Article. (c) It is also the public policy of this City to protect employers, labor organizations, employment agencies, property owners, real estate brokers, builders, builders and lending institutions from unfounded charges of discrimination. SECTION II. Chapter 2,Article 9, Section 2-127.1 of the South Bend Municipal Code shall be, and hereby is amended to read as follows: See. 2-127.1.Prohibited Conduct. (a) No person shall discriminate against any other person in education, employment, access to public conveniences and accommodations based on race, color, sex, disability, national origin, ancestry sexual orientation or gender identi .Nor shall any person deny any other person equal opportunity for education, employment, access to public conveniences and accommodations based on race, religion, color, sex, disability, national origin, ancestry, sexual orientation or Bender identity. Such discrimination or denial of equal opportunity shall be an unlawful practice. (b) No person shall refuse to sell or to rent after the malting of a bona fide offer•, refuse to negotiate for the sale or rental or otherwise make unavailable or deny a dwelling; or otherwise discriminate against any person in the terms, conditions,privileges of sale or rental of a dwelling, or in providing services or facilities in connection with the sale or rental of a dwelling because of a person's race, color, religion, sex, familial status, disability, or national origin. sexual orientation or gender identity. Conduct in violation of this section shall be an unlawful practice. (c) No person may coerce,intimidate,threaten or interfere with any other person: (1) In the exercise or enjoyment of any right granted or protected by this chapter; or (2) Because the person has exercised or enjoyed, or has aided or encouraged another person in the exercise or enjoyment of, any right granted or protected by this chapter. [P.L. 66- 1990, § 2.] (d) No person shall commit any other discriminatory practices as defined in any other section of this Article. (e) Protections in this Article against discriminate gmgt ees with regard to sexual orientation, or gender identity shall not Wly to decisions an employer which is a_religious society_or 2 Ordinance No. order association organization, institution or related entfty when such protections &ffegt the definition. advancement of the mission(s), practice(s) or belie ,$) of such religious society or order, association. organization, institution or related entity charged with the implementation of such decision or decisions, and no requirement of this article shall compel any person to act in a manner contrary to that which has been granted specific protection by the United States Supreme Court in Boy Scouts ofAmerica and Monmouth Council, et al. v.Dale, 530 U.S 640(2000). ( The protections in this Article against discriminatory practices re�g sexual orientation or gender,identity in employment shall not be construed to require that health care plans insurance, pension. or similar additional benefits provided b,y Mloyers and benefiting the sl2ouses of employees be extended to non-married domestic Rartners of My a to ee. (e) W This Article shall be construed broadly to effectuate its purpose. SECTION III. Chapter 2, Article 9, Section 2-128, (Definitions) subsections (i), (q), (w) and (x) of the ,South Bend Municipal Code hereby shall be, and hereby is amended to read as follows: (i) The term "discriminatory practice" shall mean the exclusion of a person by another person from equal opportunity or a system which excludes persons from equal opportunity in employment, education, public conveniences and accommodations because of race, religion, color, sex, disability, national origin, of ancestry sexual orientation or gender identity. A discriminatory practice also means the refusal to sell or rent after the making of a bona fide offer; the refusal to negotiate for the sale or rental or otherwise malting unavailable or denying, or otherwise discriminating against any person in the terms, conditions, privileges of sale or rental of a dwelling, or in providing services or facilities in connection with the sale or rental of a dwelling because of a person's race, color, religion, sex, familial status, disability, eF national origin sexual orientation or gender identity. A"discriminatory practice"shall also include the following: 1. Advertising for the sale or rental of a dwelling in a manner that indicates any preference, limitation, or discrimination because of race, color, religion, sex, disability, familial status,of national-ori . sexual orientation or gender identi ; 2. Falsely representing that a dwelling is not available for inspection, sale, or rental based on race, color, religion, sex, disability, familial status, eF national origin sexual orientation or gender identity; 3. Coercion, intimidation, threats, or interference with any person in the exercise or enjoyment of, or on account of his or her having exercised or enjoyed, or on account of his or her having aided or encouraged any other person in the exercise of enjoyment of any right granted or protected by sections 2-128.1, 2-128.2, 2-128.3, 2-128.4 or 2-128.5 of this chapter; 3 Ordinance No. 4. Blockbusting based on representations regarding the entry or prospective entry into the neighborhood of a person or persons of a particular race, color, religion, sex, disability,familial status,of national origin sexual orientation or gmder identi ; 5. Discrimination because of race, color,religion, sex, disability,national origin, sexual orientation or gender identilL or familial status by persons or entities whose business includes engaging in residential real estate transactions in the making of a loan or the granting of financial assistance for residential real estate, in the-selling, brokering or appraisal of residential real estate, or by the denial of access to or participation in a multiple-listing service or other real estate broker organization or services. Every discriminatory practice relating to the acquisition or sale of real property, education, public accommodations or employment shall be considered unlawful unless it is specifically exempted by this Article. (q) "Disabled" or"disability"means,with respect to a person: (1) A physical or mental impairment that substantially limits one (1) or more of the person's major life activities; (2) A record of having an impairment described in subdivision(1); or (3) Being regarded as having an impairment described in subdivision(1). The term does not include current illegal use of or addiction to a controlled substance(as defined in Section 102 of the Controlled Substances Act(21 U.S.C. § 802). The«a...,, does net i elu e an (3) In the process of obtaining legal custody of an individual younger than eighteen (18)years of age. (w)__"Gender identity" means an individual having or being_perceived as having-a gender - related self-identity, self-imaM. appearance. expression or behavior different from those characteristics traditionally associated with the individual's assigned sex at birth. W "Sexual orientation" means an individual's actual or perceived identity or practice as a lesbian woman, gay man bisexual Rerson or heterosexual person. SECTION TV. Chapter 2, Article 9, Section 2-128.1 of the South Bend Municipal Code by shall be,and hereby is amended to read as follows: Sec. 2-128.1. Prohibited Notices, Statements, Advertisements, or Representations in Housing. (a) A person may not make, print, or publish or cause to be made, printed, or published any notice, statement, or advertisement with respect to the sale or rental of a dwelling that indicates any preference, limitation, or discrimination based on race, color, religion, sex, disability, 4 Ordinance No. Member, South Bend Common Council Member,South Bend Common Council Attest: John Voorde,City Clerk *Editor's Note: Underlined words are proposed new amendments and eressed eW wer4s are proposed deletions. Presented by me to Pete Buttigieg, the Mayor of the City of South Bend, Indiana, on the day of , 2012,at o'clock—.m. Deputy Clerk Approved and signed by me on the day of 2012, at o'clock .m. Pete Buttigieg Mayor, City of South Bend,Indiana 8 Isr READING 12—t Z PUBLIC HEARING MAR 2Q:, 3 rd READING NOT APPROVFD ��►t;l� unnor'. 2fFERREQ t' GUTH off'�01 j� �►A���r0 � City of South. Bend. Common Council 1865 441 County-City Building .227W Jefferson Blvd (574) 235-9321 South Bend,Indiana 4660 1-1 830 Fax (574) 235-9173 htip://www.southbendin-gov Derek D. Dieter President March 7,2012 Oliver J. Davis Vice-President Members of the South Bend Common Council Karen L. White 4a`Floor County City Building Chairperson, Committee South Bend, IN 46601 of the Whole Re. Proposed Amendments to the South Bend Human Rights Ordinance Tim Scott Addressing Sexual Orientation and Gender Identity in the City of South First District Bend Henry Davis, Jr. Dear Council Members: Second District Valerie Scbey We are pleased to introduce for your consideration the attached 8-page amended Third District ordinance. This amended ordinance would replace the South Bend'Human Rights Ordinance currently set forth in Chapter 2, Article 9, Sections 1-126 )Fred Ferlic through 2-132.1 of the South Bend Municipal Code. Fourth District The issue of discrimination on the basis of sexual orientation and gender identity David Varner has been a focus of public concern and debate in South Bend since January, Fifth District 2005, when the Human Rights Commission sent the following statement to the Oliver J. Davis Common Council: Sixth District "The South Bend Human Rights Commission is an agency of the City of Derek D. Dieter South Bend, Indiana, committed to fair and equal treatment of all human At Large beings. It is the responsibility and during of the Human Rights Commission to make sure that no human being is mistreated based on Gavin Ferlic status, without making value or moral judgments. At Large Gays, lesbians, bisexuals, and transgendered (GLB&T) persons have Karen L. White experienced mistreatment based on their GLB&T status. The South Bend At Large Human Rights Commission supports and encourages the South Bend Common Council to hear from the general public; to explore, investigate and to determine the degree to which GLB&T persons have been treated adversely within the City of South Bend due to their GLB&T status. The South Bend Human Rights Commission further encourages the South Bend Common Council, working cooperatively with the South Bend Human Rights Commission, to create an appropriate remedy." Yet, despite evidence that such discrimination was occurring, an attempt to amend the Human Rights Ordinance in 2006 failed. Human Rights Ordinance Cover Letter—page 2 March 7,2012 In 2009, former Mayor Stephen Luecke issued an Executive Order to ban discrimination based upon sexual orientation in city hiring. The Common Council went on to defeat a proposed amendment to ban employment discrimination based upon sexual orientation city-wide in 2010. It is now 2012, and members of the Human Rights Commission continue to state that they receive reports alleging discrimination on the basis of sexual orientation; however, the Commission has been unable to investigate these reports because they are not empowered to do So. The Common Council can take action to allow the Human Rights Commission to address this discrimination, and it is the opinion of the sponsors of this amendment that the council should do so. Not only will this promote the fair treatment and equality that South Bend wishes to extend to all citizens, but it will also promote the type of climate that is essential in attracting innovative businesses to our community. We believe it is a matter of basic fairness to amend our city's Human Rights Ordinance to prohibit discrimination on the basis of sexual orientation and gender identity. Doing so will enable the Human Rights Commission to investigate allegations, determine if there is evidence of discrimination, mediate, and try to resolve the issue. Our Human Rights Commission is experienced at this process - we need only give them the power to investigate cases of sexual orientation or gender identity discrimination for them to do so. This issue has been the topic of extensive debate. The proposed legislation has been vetted. We believe the time has come for South Bend to join other progressive cities in Indiana and nationwide in protecting our GLBT citizens from discrimination. Sincerely, Valerie Schey Dr. Fred Ferlic 3'd District Council Member 4th District Council Member Tim Scott Gavin Ferlic 1St District Council Member Council Member at Large Attachments Penny Hughes 1918 Southernview Dr. South Bend, Indiana 46614 March 1, 2012 Dear Council Member Schey, I'm so glad I finally got to meet you at the swearing in ceremony. Thank you for your willingness to serve. The City of South Bend has a long history of opposing discrimination, and has enacted ordinances with the specific goal of eliminating discrimination since 1956. The Human Rights Commission of South Bend reflects the moral,religious and democratic sentiments of citizens of South Bend to completely abolish discrimination and segregation. Historically,before I was a member of the HRC, the Commission held retreats focused on the issue of discrimination on the basis of sexual orientation. Members of the commission were concerned about the fact that individuals who faced such discrimination had no recourse. After one retreat the members of the HRC voted to bring their concerns to the attention of the Common Council. In 2005 the HRC asked the Council to explore, investigate and determine the degree to which gay, lesbian, bisexual and transgendered persons (GLTB)have been treated adversely within the City and, if such discrimination existed, "to create an appropriate remedy." Bill.29-06, which would have prohibited discrimination on the basis of sexual orientation and gender identity in employment, housing, education, and public accommodations, was proposed but subsequently defeated. Since the defeat of Bill 29-06,the HRC has received a number of complaints of discrimination on the basis of sexual orientation that we have been unable to address. This is a concern that has been discussed at HRC meetings. We have not officially tracked the number of complaints because we are not empowered to investigate them. After attending a conference in Philadelphia with our Director I learned some 80%of Fortune 500 Companies already had in their company policies that they will not discriminate against gay people. We were told when they are looking to relocate they seek areas which are open and accepting of all their employees, including gay people. In 2010 the HRC passed a resolution requesting that the Common Council pass Bill 30- 10 which would have amended the Human Rights Ordinance to include prohibitions against employment discrimination on the basis of sexual orientation and gender identity. The HRC voted unanimously in favor of amending the ordinance. The resolution noted that the Commission had received complaints alleging employment discrimination based on sexual orientation,but was not empowered to investigate these complaints. Bill 30-10 would have allowed the Commission to treat GLBT persons the same as any other citizen of our City who faced employment discrimination; however, it too was defeated. At the present time, when Commission members attend workshops we are regularly taught ways of dealing with discrimination against GLBT individuals as this problem is being addressed in other communities across the nation. I recognize that it is not my role as president of the Human Rights Commission to enact legislation, but I see that other communities are moving forward on this issue. I'm concerned South.Bend may appear backward to the very companies we are trying to attract to our community. In conclusion, the HRC stands ready to enforce any legislation enacted by the Common Council that will prohibit discrimination in our community. As noted in the 2005 HRC's statement to the Common Council, "The South Bend Human Rights Commission is an agency of the City of South Bend, Indiana, committed to fair and equal treatment of all human beings. It is the responsibility and duty of the Human Rights Commission to make sure that no human being is mistreated based on status, without making value or moral judgments." Feel free to share this with the other new members of the Common Council who may want to review this history. Sincerely, Penny Hughes, Chair Human Rights Commission Office Phone: 291-2342 Cell: 276-2571 Email: pennysold @aol.com Municode Page 1 of 5 Indianapolis-Marion County, Indiana, Code of Ordinances>>TITLE III-PUBLIC HEALTH AND III WELFARE >>Chapter 581 HUMAN RELATIONS; EQUAL OPPORTUNITY>>ARTICLE I. -GENERAL PROVISIONS ARTICLE I.- GENERAL PROVISIONS Sec.581-101.-Findings @nd purposes. Sec. 81-102.-Nondiscrimin tion clauses. Sec.581-103.-Definitions. Sec. 581-101.-Findings and purposes. v i (a) The council finds that the practice of denying equal opportunities in employment,education,access to ! and use of public accommodations,and acquisition of real estate based on race,color,religion, ancestry, age,national origin,disability,sex,sexual orientation,gender identity,or United States military service veteran status is contrary to the principles of freedom and equality of opportunity and Is a burden to the objectives of the policies contained herein and shall be considered discriminatory I practices. (b) It is the purpose of this chapter to carry out the following policies of the city and county: j E (1) To provide equal employment opportunity,in all city and county jobs without regard to race,color, ' religion,disability,national origin,ancestry,age, sex,sexual orientation,gender identity,or i United States military service veteran status; (2) To encourage the hiring of the persons with disabilities in both the public and the private sectors E and to provide persons with disabilities with equal access to public accommodations; ' i (3) To utilize businesses owned by persons with disabilities; (4) To protect employers, labor organizations,employment agencies,property owners,real estate brokers,builders,lending institutions,governmental and educational agencies and other persons i from unfounded charges of discrimination; ? I (5) To provide all citizens of the city and county equal opportunity for education,employment,and i E access to public accommodations without regard to race,religion,color,disability,sex, sexual ' orientation,gender identity,national origin, ancestry, age,or United States military service veteran status;and E (6) To provide all citizens of the city and county equal opportunity for acquisition through purchase or rental of real property including,but not limited to,housing without regard to race, religion,color, disability,sex,sexual orientation,gender identity,familial status,national origin, ancestry, age or. United States military service veteran status. j (G.O. 111, 2005,§1;G.0. 71, 2005,§24) Sec. 581-102. - Nondiscrimination clauses.,! i (a) Every contract to which one(1)of the parties is the city or the county,or any board,department or office �E of either the city or county,including franchises granted to public utilities,shall contain a provision { requiring the governmental contractor and subcontractors not to discriminate against any employee or applicant for employment in the performance of the contract,with respect to hire,tenure,terms, I conditions or privileges of employment,or any matter directly or indirectly related to employment, because of race,sex,sexual orientation,gender identity, religion,color,national origin,ancestry, age, i disability,and United States military service veteran status.Breach of this provision may be regarded as a material breach of the contract. j {b) All applications,postings,announcements,and advertisements recruiting applicants for employment with the city or county shall conspicuously post in the bottom margin of such recruiting bids a clause as follows:"An Affirmative Action Equal Employment Opportunity Employer." E _ (G.0. 111, 2005,§ 1) �— Sec. 581-'103. - Definitions. f�) Lai.!!1_L___„-_,,,,-.-y-„_,�_ ��—_/__-_�� ___,„_n_I•___aTT1_..._1.1n1i0_T7T7I'71______..�Y.,�-�._-I��n„n/nrniAi!1•! n/�ennyn Mui icode Page 2 of 5 Unless defined otherwise In this section,terms used in this chapter shall have the meanings ascribed to IIt them in the Indiana Civil Rights Law(currently codified at IC 22-9-1-1 at seq.),and/or the Indiana Fair 1 JJ Housing Law(currently codified at IC 22-9.5-1-1 at seq.),as those laws may be amended from time to time.Unless this chapter expressly creates greater rights or protections than the Indiana Civil Rights Law and/or the Indiana l=air Housing Law,it is the general intent of this chapter to provide the same � fI rights and protections as the Indiana Civil Rights Law and/or the Indiana Fair Housing Law. (lb) As used in this chapter,the following terms shall have the meanings ascribed to them in this section. I Acquisition of real estate means the sale, rental, lease,sublease,advertising,construction or financing, i including negotiations and any other activities or procedures incident thereto,of: (1) Any building, structure,apartment, single room or suite of rooms or other portion of a building, occupied as or designed or Intended for occupancy as living quarters by one(1)or more families I or single individuals; (2) Any building, structure or portion thereof,or any improved or unimproved land utilized or designed or intended for utilization,for business, commercial, industrial or agricultural purposes; 1 or i (3) Any vacant or unimproved land offered for sale or lease for any purpose whatsoever. i Appointing authorities means and includes the mayor,council and such other person or agency as may I be entitled to appoint any member of the equal opportunity advisory board created in this chapter. II Appraiser means any person who,for a fee or in relation to his or her employment or usual occupation, establishes a value for any kind of real estate,the acquisition of which is defined in this section. I Board means the equal opportunity advisory board, j Complainant means any person who signs a complaint on his or her own behalf alleging that he or she has been aggrieved by a discriminatory practice. i l Complaint means a written grievance filed with the office of equal opportunity,either by a complainant or by the board or office,which meets all the requirements of sections 581-408 and 589-407 of this chapter. Disability means"disability"as that term is defined in the Americans with Disabilities Act("ADA"),as that Act may be amended from time to time,and as that definition may be Interpreted by the federal courts. To i the extent that the ADA would require a person to be a"qualified individual with a disability"in order to be f protected from a specific form or type of discrimination under the ADA,then the same is true with respect to this chapter. 1 I � !f� j Discriminatory practice means and includes the following: (1) The exclusion from or failure or refusal to extend to any person equal opportunities or any difference in the treatment of any person by reason of race,sex, sexual orientation,gender j identity,religion,color,national origin or ancestry, disability,age,or United.States military service veteran status; (2) The exclusion from or failure or refusal to extend to any person equal opportunities or any i z difference in the treatment of any person,because the person fled a complaint alleging a I violation of this chapter,testified in a hearing before any members of the board or otherwise cooperated with the office or board in the performance of its duties and functions under this chapter,or requested assistance from the board in connection with any alleged discriminatory 1 E practice,whether or not such discriminatory practice was in violation of this chapter; (3) In the case of a real estate broker or real estate salesperson or agent,acting in such a capacity ° j in the ordinary course of his or her business or occupation,who does any of the following: e. Any attempt to prevent,dissuade or discourage any prospective purchaser,lessee or i ' tenant of real estate from viewing,buying,leasing or renting the real estate because of the race, sex, sexual orientation,gender identity, religion, national origin,age, color,disability, ancestry,familial status or United States military service veteran status of: # i 1. Students,pupils or faculty of any school or school district;or I i I2. Owners or occupants,or prospective owners or occupants,of real estate in any # �! i neighborhood or on any street or block;provided,however,this clause shall not be construed to prohibit disclosure in response to inquiry by any prospective j purchaser,lessee or tenant of: (1) Information reasonably believed to be accurate regarding such race,sex, sexual orientation,gender identity, religion,national origin,age,color, f ( disability,ancestry,familial status,or United States military service veteran status;or I i�ttr► //lihrarc�mnnirrtrlfp r!nm/nrin+ aenv7,-Ilan+iT1-17 01FiRr1�TMRpnt�Pef�#,4#na/3�Q/?fl}/`)fliF� 1/K/7( I) Munkode Page 3 of) The honest professional opinion or belief of the broker,salesperson or agent regarding factors which may affect the value or desirability of property available for.purchase or lease;or b. Any solicitation,promotion,advertisement or attempt to influence or induce any owner to i l sell,lease or list for sale or lease any real estate,which solicitation,promotion, advertisement or attempted inducement includes representations concerning: 1. Race,sex,sexual orientation,gender identity,religion,national origin,age,color, 1 disability,ancestry,familial status or United States military service veteran status of present,prospective or possible purchasers or occupants of real estate in any area, neighborhood or particular street or block; 2. Present,prospective or possible neighborhood unrest,tension or change in the race,sex,sexual orientation,gender identity,religion, national origin,age,color, disability,ancestry,familial status or United States military service veteran status of occupants or prospective occupants of real estate in any neighborhood or any street or block; 1 3. Present,prospective or possible decline In market value of any real estate by reason of the present,prospective or possible entry into any neighborhood, street or block of persons of a particular race,sex, sexual orientation,gender identity, religion, national origin,age,color,disability,ancestry,familial status or United i States military service veteran status;or j 4. Present, prospective or possible decline in the quality of education offered in any school or school district by reason of any change in the race,sex,sexual orientation,gender identity,religion,national origin,age,color,disability,ancestry, familial status,or United States military service veteran status of the students, pupils or faculty of such school or district;and j ? (4) Making unavailable or denying the sale or rental of a dwelling to any buyer or renter,or the refusal to extend to any person equal opportunities in the terms,conditions,or privileges of the j sale or rental of a dwelling or in the provision of services or facilities in connection with the i dwelling because of a disability of: a. The buyer or renter; b. A person residing in or intending to reside in the dwelling after the dwelling is sold, rented, or made available;or ; C. Any person associated with the buyer or renter. For purposes of this subsection(4),discrimination includes the following: a. A refusal to permit,at the expense of the person with a disability,reasonable modifications of existing premises occupied or to be occupied by the person if the modifications may be 1 necessary to afford the person full enjoyment of the premises; b. A refusal to make reasonable accommodations in rules,policies,practices,or services, when the accommodations may be necessary to afford the person equal opportunity to use and enjoy a dwelling;and C. In connection with the design and construction of covered multifamily dwellings(as defined in the Indiana Civil Rights Law,as that law may be amended from time to time)for first occupancy after March 13, 1991,a failure to design and construct those dwellings in a manner that: 1. The public use and common use parts of the dwellings are readily accessible to t and usable by persons with disabilities; 2. All the doors are designed to allow passage into and within all premises within the dwellings and are sufficiently wide to allow passage by persons with disabilities in I I wheelchairs;and 3. All premises within the dwellings contain the following features of adaptive design: (1) An accessible route into and through the dwelling; I j i (ii) tight switches,electrical outlets,thermostats,and other environmental I I controls in accessible locations; 3 (ill) Reinforcements in bathroom walls to allow later installation of grab bars;and ! i (iv) Usable kitchens and bathrooms so that an individual in a wheelchair can maneuver about the space. 1 Compliance with the rules of the fire prevention and building safety commission that incorporate i by reference the appropriate requirements of the American National Standard for buildings and facilities providing accessibility and usability for people with physical disabilities(ANSI A117.1) i satisfies the requirements of this subpart 3. I This subsection(4)does not require that a dwelling be made available to an individual whose tenancy would constitute a direct threat to the health or safety of other individuals or whose i i tenancy would result in substantial physical damage to the property of others. h+t.,•//Iihrnry rm,nirnde.rnm/nrint.asnx?ciient1D=12016&HTMRequest=http%3a%2P/o2flib... 3/6/2012 Municode Page 4 of 5 # Education means the construction, maintenance or operation of any school or educational facility utilized or intended to be utilized for the education or training f persons jurisdiction of the office and controlled by a public governmental board or agency which the operates one(1)or ! more elementary or secondary schools. I Employer means: � I (1) Any political subdivision within the county,not represented by the office of corporation counsel under section 202-103 of the Code and any separate municipal corporation which has territorial Jurisdiction primarily within the county;and i (2) Any person who employs at the time of any alleged violation six(6)or more employees within the territorial jurisdiction of the office. Employment means a service performed by an individual for compensation on behalf of another person, except for: (1) Services performed by an individual who in fact is engaged in an independently established I trade,occupation,business or profession,and who has been and will continue to be free from l r direction or control over the manner of performance of such services; j (2) Services performed by an agent who receives compensation solely upon a commission basis E and who controls his or her own time and efforts;or (3) Services performed by an individual in the employ of his or her spouse,child or parent. Employment agency means and includes any person who undertakes,with or without compensation,to I E procure, recruit,refer or place any individual for employment. fi I Familial status means an individual who is(1)pregnant;(2)domiciled with an individual younger than eighteen(18)years of age in regard to whom the person:(A)is the parent or legal custodian;or(B)has the ! written permission of the parent or legal custodian for domicile with that person;or(3)in the process of i obtaining legal custody of an individual younger than eighteen(18)years of age. i Gender identity means an individual having or being perceived as having a gender-related self-identity, ' self-image,appearance,expression or behavior different from those characteristics traditionally associated I with the individual's assigned sex at birth. Labor organization means and includes any organization which exists for the purpose,in whole or in part, of collective bargaining or dealing with employers concerning grievances,terms or conditions of employment,or for other mutual aid or protection in relation to employment. r 3 € Lending institution means any bank,building and loan association,insurance company or other corporation,association,firm or enterprise,the business of which consists in whole or in part in making or guaranteeing loans, secured by real estate or any interest therein. Once means the office of equal opportunity created by this chapter. Owner means and includes the title holder of record,a contract purchaser,lessee, sub lessee, j i managing agent or other person having rights of ownership or possession, or the right to sell,rent or lease real estate. Person means and includes one(1)or more individuals,partnerships,associations, organizations, cooperatives,legal representatives,trustees,trustees in bankruptcy, receivers,governmental agencies and `• other organized groups of persons. Public accommodation means an establishment which caters to or offers its services,facilities or goods to the general public. Public facility means any facility or establishment,other than an educational institution,which is owned, i I! i operated or managed by or on behalf of a governmental agency. Real estate broker means any person who,for a fee or other valuable consideration, sells,purchases, rents,leases or exchanges, or negotiates or offers or attempts to negotiate the sale, purchase,rental,lease or exchange of real property owned by another person;or a person who is licensed and holds himself or herself I out to be engaged in the business of selling,purchasing,renting,leasing or exchanging real property for other I persons,or who manages and collects rents for the real property of another. ! Real estate salesperson or agent means any person employed by a real estate broker to perform or i I assist in performing any or all of the functions of the real estate broker. I 1 Respondent means one(1)or more persons against whom a complaint is filed under this chapter,and who the complaint alleges has committed or is committing a discriminatory practice. I httn://Iibratv.muniende_corn/»tint_as nx?clientfn=1701fi�QrHTMRexr3��et=hand/�a%7fb/�fl;h Municode Page 5 of Sexual orientation means an Individual's actual or perceived identity or practice as a lesbian woman, gay male,bisexual person or heterosexual person. (G.0, 111,2005,§1;G.O. 71,2008,§25) bttn://librarv.municode.com/t)rint.asvx?clientlD=12016&HTMRequest=http%3a�/*2P/�2flib... 3/6/2012 ARTICLE Il. - OFFICE OF EQUAL OPPORTUNITY Page 1 of 2 Indianapolis -Marion County, Indiana, Code of Ordinances>>TITLE 111-PUBLIC HEALTH AND ' ! WELFARE >>Chapter 581 -HUMAN RELATIONS; EQUAL OPPORTUNITY>>ARTICLE II. -OFFICE OF EQUAL OPPORTUNITY>> I ARTICLE li. -OFFICE OF EQUAL OPPORTUNITY Sec. 581-202.-CCoffme s ated:gumose. i d functions. Sec.581-203.-Certerai powers and duties. -- Sec. 581-201. -Office created; purpose. There is hereby created an office of equal opportunity within the office of corporation counsel.This office and its board are empowered as provided in this chapter to carry out the public policy of the state as E stated in the Indiana Civil Rights Law at IC 22-9-1-2,and the Indiana Fair Housing Law,at IC 22-9.5-1-1, ! within the territorial boundaries of the county,and the public policy of the city,as stated in this chapter. 911,2005,§7;G.0, 71, 2008,§26) Sec. 581-202. -Composition and functions. .1 The office shall be directed by an administrator who shall also be the affirmative action officer for the 3 j i city and county.The administrator shall be appointed by and serve at the pleasure of the mayor and shall be ! responsible for performing the following functions: To monitor internal employment practices as follows: j ; r a, By ensuring that city and county government offers equal employment opportunities to persons regardless of race, religion, color,sex, sexual orientation,gender identity, i ? national origin,ancestry,age, disability, or united States military service veteran status; ; b. By providing a vehicle through which employees may seek redress for alleged [ discriminatory acts by city and county government and/or retaliatory acts by city or �' i i county government for filing or assisting in the discrimination complaint process; 3 C. By establishing affirmative action goals for city and county government; s d. By complying with federal reporting requirements concerning affirmative action and i equal opportunity;and E e. By reviewing policies and procedures of the city and the county to eliminate E discriminatory practices;and i (2) To receive,investigate and adjudicate community complaints as specified in Article IV of this chapter. i ; (G.0. 111,2005,§ 1;G O 79,2008 §26) ^^ . Sec. 581-203. -General powers and duties. l ; In addition to the functions previously mentioned in section 581-202 of this chapter,the office shall 1 have the following powers and duties: (1) To gather and distribute information for the purpose of improving human relations and ; removing inequities in the areas of housing, recreation,education,employment,law enforcement,vocational guidance and related matters; (2) To assist other governmental and private agencies,groups and individuals in reducing f community tensions and preventing conflicts between persons of different racial,ethnic and i religious groups; (3) To discourage persons from engaging in discriminatory practices through informal methods of persuasion and conciliation and through programs of public information and education; (4) httn://Iibrarv.municode.com/showDocument.asnx?clientlD=12016&doclD=1 3/6/2012 ARTICLE IT. - OFFICE OF EQUAL OPPORTUNITY Page 2 of 2 To furnish technical assistance upon request to persons to assist them in eliminating I discriminatory practices or otherwise implementing the policy and purposes of the Indiana Civil i Rights Law and the Indiana Fair Housing Law; ! (5) To make such general investigations,studies and surveys as the office shall deem necessary for the performance of its duties; (6) To prepare and submit at least annually a report of its activities to the mayor and to the public, which report shall describe the investigations and proceedings conducted by the office,the ; outcome thereof and the progress and achievements of the office and the community toward j elimination of discriminatory practices; Copy link to clipboard ';-anyAVMpnate Wural,state or local I agencies,and with private organizations, individuals and neighborhood associations in order i to effectuate the purposes of this chapter and to further compliance with federal,state and local laws and ordinances prohibiting discriminatory practices;and i ' (8) To perform any other duties assigned by ordinance or the mayor. EE j f ! , § 9_,G.O. 71 2008, 26) 1 )]I 3 I e E I I E i i htt-n-/Aihrarv_mtinicnde.com/showDocument.asnx?c1ientlD=12016&doclD-1 3/6/2012 ARTICLE III. - EQUAL OPPORTUNITY ADVISORY BOARD Page I of 2 r.._._._.. Indianapolis-Marion County, Indiana, Code of Ordinances>>TITLE III-PUBLIC HEALTH AND J. WELFARE »Chapter 581 - HUMAN RELATIONS; EQUAL OPPORTUNITY>>ARTICLE III. -EQUAL OPPORTUNITY ADVISORY BOARD>> i ARTICLE 111.- EQUAL OPPORTUNITY ADVISORY BOARD ;' f Sec.581-301.-Board created:ou!pgse. Sec.581-302_=Composition of board:appointment an terms of members. j ? Sec.581-303.-Meefincs:vote required for board action. ' Sec. 581-304.-General gowers and duties. — Sec. 581-301. -Board created; purpose. � E j There is hereby created an equal opportunity advisory board empowered as provided in this chapter # to carry out the public policy of the state as stated in the Indiana Civil Rights Law at IC 22-9-1-2,and the I ! Indiana Fair Housing Law, at IC 22-9.5-1-1,within the territorial boundaries of the county, and the public I I policy of the city,as stated in this chapter. F (G,0. 111,2005, §1) Sec. 581-302. -Composition of board; appointment and terms of members. (a) Effective July 1,2006,the board shall consist of fourteen(14)members.Eight(8)members shall be appointed by the mayor and six(6)members shall be appointed by the council. In addition,the ! I administrator shall be an ex officio member of the board. In the appointment of members,the mayor and the council shall consider the following: ? (1) No more than four(4)members of the board appointed by the mayor shall be from any one(1) political party.No more than three(3)members of the board appointed by the council shall be I from any one(1)political party;and ! ; ' ! (2) In making appointments to the board,the mayor and the council shall take into consideration all interests in the community, including but not limited to age,racial,ethnic,sexual,sexual orientation,gender Identity, religious and economic groups, business, labor,persons with disabilities and the general public. (b) A board member may be removed for just cause,including nonattendance,by a two-thirds(213)vote of the board. I +` I (c) In the event of the death, resignation or removal of any member of the board prior to the expiration of his or her term,the appointing authority shall make an appointment to fill the vacancy for the € unexpired term of the member. (d) All appointments to the board that were made prior to December 1,2005,and that have not otherwise expired shall expire on July 1,2006.All appointments made on or after December 1,2005, j shall be for three-year terms beginning on the first day of July and ending on the last day of June. Any member of the board whose term has expired after July 1,2006,may continue in office until a E successor has been appointed. (e) The mayor shall appoint from the membership of the board a chairperson who shall serve a one-year : r term and until his or her successor is appointed and qualified,but serves at the pleasure of the j I mayor. 3` (f) The chairperson shall appoint a vice-chairperson and a secretary to serve during his or her term of ? office. ___—____--.--- I Sec. 581-303. -Meetings; vote required for board action. I ? fl I'I The board shall hold regular meetings every two(2)months on a day agreed upon by the board.The I board shall hold special meetings as may be called by two-thirds(213)of the membership.Seven(7) j I members of the board shall constitute a quorum at any meeting.A majority vote of those in attendance shall l r be necessary for action,except in the case of a determination after hearing provided in section 5§14144 of thin rhantar whRn a mainritu of thR mamhRrn of the hnard not rfinnim ifiarf frnm nartirinatinn in gjrh I httn-//lihrarv_miiniende_com/chnwD ocument.asnx?clientlD=12016&doclD=2 3/6/2012 ARTICLE III. -EQUAL OPPORTUNITY ADVISORY BOARD Page 2 of 2 determination shall be required. In the event of an appeal to the board as provided under 581414 of this j chapter,the chairperson of the board shall not be:allowed to vote,except in case of a tie,when the i chairperson of the board may cast the deciding vote.The administrator shall not be allowed to vote in an appeal to the board provided under 4 581414 of this chapter.As to all other matters,the administrator shall not be allowed to vote,except in case of a tie,when the administrator may cast the deciding vote. (G-0- 111, 2005,§1) j Sec. 581-304. -General powers and duties. (a) The board shall have the powers and duties to appoint an executive committee,a majority of which shall constitute a quorum,which committee shall be authorized to act upon emergency matters ` between meetings of the board;provided,however,the executive committee shall not take any action inconsistent with action previously taken or policies adopted by the board,and the executive committee shall not exercise any of the powers or functions of the board under sections 581-4 05 j through 581-415 of this chapter,all officers of any executive committee appointed by the board must be members of the board. a i (b) Further,the board shall have the powers and duties to establish a committee on contract compliance composed of at least five(5)members of the board.The committee shall meet at such times as the I members of the committee shall deem necessary.The committee shall have the power to establish and adopt rules for the conduct of its affairs.The duties of the contract compliance committee shall include: (1) To review contract compliance procedures and make recommendations concerning their i ! E effective and efficient operation; I ! (2) To establish other standing and ad hoc committees,as the board deems necessary; I i (3) To advise the office in formulating policies designed to effectuate the purposes of this chapter j ! and to make such recommendations to the mayor and the council as the board shall deem I appropriate to implement such policies; ! (4) To adopt,amend and rescind procedural and substantive rules and regulations for the conduct of its affairs,not inconsistent with the provisions or intent and purposes of this chapter,as the i board shall deem necessary or appropriate;the rules or regulations shall be adopted subject ! to the provisions of Chapter 151,Article Vlfl of the Code; (5) To adjudicate claims of discrimination in a manner consistent with the provisions of this Chapter; (6) To facilitate advancement of the policies identified in section_60401 ! (7) To exercise such additional powers or functions as may be delegated to the board by I s ordinance or by executive order validly adopted'and promulgated by the mayor; and € (8) To generally advise the office in the area of equal opportunity which shall include but not be limited to recommending new programs and program objectives,reviewing problem areas and ! recommending changes in existing programs. E , (G.O. 111,2005, § 1;G.0, 71, 2008,§27) ! 1 ARTICLE IV. -COMPLAINT ADJUDICATION Pagel of 6 Indianapolis -Marion County, Indiana, Code of Ordinances>>TITLE 111-PUBLIC HEALTH AND WELFARE >>Chapter 581 -HUMAN RELATIONS; EQUAL OPPORTUNITY>>ARTICLE IV. - COMPLAINT ADJUDICATION >> ARTICLE IV. - COMPLAINT ADJUDICATION Sec. 581-401.-Terri orial application. — Sec.581-402._-False complaints. Sec.581_403.-Dj*griminatory practices declared unlawful. Sec. 581-404.-Persons And activities to which section 581-403 of this chapter does not apply. Sec. 581-405.-Grounds for cam laint`o6rSons who may file I Sec.581-405.-Contents of complaint. Sec.581-467.-Execution and verification of complaint;notice of acknowledgement. Sec.581-408. .,Timeliness of complaint. Sec._581-409 Ref e aI of complaint to state civil rights commission. See. 581-410 Recelpt of complaint from state civil rights commission. Seca 581 411.-Service of complaint on respondent:answer. Sec.581-412.-investigation and conciliation. Sec.581-413.-Complaint adjudication committee:hearing officer,duties. Sec.581-414.-Heanngs,findings and recommendations when conciliation not effected. jSec.581-415.-Court enforcement. ! Sec.581-418.-Other remedies. I Sec. 581-401. -Territorial application. This chapter shall apply within the territorial limits of the city and the county,with respect to any # } discriminatory practice occurring within such territorial limits and which relates to; � i (1) Acquisition of real estate; (2) Employment; 1 j (3) Education controlled by any public board or agency;or (4) Public accommodations. i I (G.0. 111,2005,§ 1) _. .., Sec. 581-402. -False complaints. __.._...__.._... f It shall be unlawful for any person willfully to file a complaint alleging a violation of section 581-403 of j this chapter with knowledge that the complaint is false in any material respect.A violation of this subsection constitutes the false reporting of a crime(currently codified at section 401-101)in violation of this Code. i i (G.0. 111, 2005,§1) Sec. 581-403. - Discriminatory practices declared unlawful. _._..__._..._........._ ....._.._......__.-.--._._._ _._�f I Each discriminatory practice as defined in section 581.103 of this chapter(including any retaliatory i j practice encompassed within the definition of"discriminatory practice")shall be considered unlawful unless it is i specifically exempted by this chapter. i l (G.0, 111, 2005,§ 1) Sec. 581-404. -Persons and activities to which section 581-403 of this chapter does not apply. (a) The provisions of sections 581-403 of this chapter shall not apply to any not-for-profit corporation or association organized exclusively for fraternal or religious purposes,or to any school,education, charitable or religious institution owned or conducted by,or affiliated with,a church or religious httv://Iibrarv.municode.com/HTML/12016/level3/TITIIIPUHEWE CH581HUREEQOP A... 3/6/2012 ARTICLE N. -COMPLAINT ADJUDICATION Page 2 of 6 I institution,nor any exclusively social club,corporation or association that is not organized for profit and is not in fact open to the general public. (b) Section 581-402 of this chapter shall not apply to the rental of rooms in a boardinghouse or rooming i house or single-family residential unit;provided,however, the owner of the building unit actually E I maintains and occupies a unit or room in the building as his or her residence and,at the time of the f rental,the owner intends to continue to so occupy the unit or room therein for an indefinite period subsequent to the rental. (c) Section 581-403 of this chapter shall not apply to housing that meets the definition of"housing for alder 1 persons"as contained in the Indiana Fair Housing Law,as that law may be amended from time to time. i (d) The following shall not be discrimination on the basis of sex: (1) For any person to maintain separate restrooms or dressing rooms for the exclusive use of either sex;and (2) For an employer to hire and employ employees;for an employment agency to classify or refer for I I employment any individual;for a labor organization to classify its membership or to classify or refer for employment any individual;or for an employer,labor organization or joint labor i management committee, controlling apprenticeship or other training or retraining programs,to admit or employ any individual in any such program;on the basis of sex in those certain instances where sex is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise. 1,2005,§1) (j( Sec. 589-405. -Grounds for complaint; persons who may file. i (a) A complaint charging that any person has engaged in or is engaging in a discriminatory practice prohibited by section 581-403 of this chapter may be filed with the office by any person claiming to be aggrieved by the practice, by one(1)or more members of the board or by one(1)or more employees of i the office who have reasonable cause to believe that such a violation has occurred, in any of the E following circumstances: (1) In the case of the acquisition of real estate,against the owner of the real estate, a real estate ! broker,real estate salesperson or agent,or a lending institution or appraiser; (2) In the case of education, against the governing board of any public school district which operates j ' schools within the territorial limits of the consolidated city or of the county; (3) In the case of a public accommodation, against the owner or person in charge of any such establishment,or both; (4) In the case of a public facility,against the governmental body which operates or has jurisdiction over the facility;or 't (5) In the case of employment,against any employer,employment agency or labor organization, 'f I (b) Sections 581-406 through 581-415 of this chapter shall not apply to complaints arising from I employment performed for the city,or any department or agency thereof,or any employment performed j for the county,or any department or agency thereof,unless such employee has first utilized all internal complaint procedures,remedial measures and investigatory procedures available through the agency's or department's written policies and procedures. In the absence of a written procedure,employees should report complaints to the office prior to submitting a complaint under section 581-406.In carrying out his or her duties under this chapter,the administrator of the office shall develop appropriate rules and procedures for the office to conduct internal investigations and to process and refer complaints related to allegations of discriminatory practices in employment against the city,a city department or agency,the county,or a county department or agency.These rules and procedures shall include, but are not limited to, requiring employees of the city, a city department or agency,the county, or a county i department or agency to use appropriate internal mechanisms prior to an investigation being instituted under section 581-412 ; I (G.0. 111, 2005,§ 1;G.a 71, 2008,§28) i Sec. 581-406. -Contents of complaint. _ .. . . _. .'� To be acceptable by the office,a complaint shall be in writing and shall be sufficiently complete so as to 13 i reflect properly the following: (1) The full name and address of the complainant or other aggrieved person or persons; (2) The full name and address of the person against whom the complaint is made; (3) The alleged discriminatory practice and a statement of particulars thereof; (4) The date or dates of the alleged discriminatory practice; (5) If the alleged discriminatory practice is of a continuing nature,the dates between which the . continuing discriminatory practices are alleged to have occurred; (6) I t,++..•in;�,r�,.,,,,,,,,,;•.,,tP rnm/€�TA�i1./17!11 F/ipvPl�/7'TTTTII�f lNF.WF (145R l M 1RF.FOOP A... 3/6/2012 ARTICLE IV. -COMPLAINT ADJUDICATION Page 3 of 6 A statement as to any other action,civil or criminal,instituted before any other administrative agency,commission,department or court,whether state or federal, based upon the same grievance alleged in the complaint,with a statement as to the status or disposition of any such !!! other action;and ' j (7) In the case of alleged employment discrimination a statement that the employer employs six(6) i I or more employees in the territorial jurisdiction of the office. (G.O. 111,2005,§1;G.0. 71,2008,§28) Sec. 581-407. -Execution and verification of complaint; notice of acknowledgement. 1I (a) The original complaint shall be signed and verified before a notary public or other person duly authorized by law to administer oaths and take acknowledgments. Notarial services shall be fumished I ! by the office without charge. , I ' (b) The administrator shall cause an acknowledgement of the complaint to be provided to the complainant advising the complainant of the time limits and choice of forum provided under the law. l (G.O: 111,2005,§1;G.O. 71,2008,§28) Sec. 581-408. -Timeliness of complaint. I No complaint shall be valid unless filed within one hundred eighty(180)calendar days from the date of occurrence of the alleged discriminatory practice or,in the case of a continuing discriminatory practice,during the time of the occurrence of the alleged practice;but not more than one hundred eighty(180)calendar days I from the date of the most recent alleged discriminatory act. _..__(G.0. 1 1,zoos,§1) E --Sec. 581-409. -Referral of complaint to ---.------------.._—_....---__._._...._-_.__._.____.-..-....... ............. state civil rights commission. • ! The administrator may, in his or her discretion,prior to scheduling of the complaint for hearing under ' section 581-414 of this chapter, refer any complaint to the state civil rights commission for proceedings in accordance with the Indiana Civil Rights Law or the Indiana Fair Housing Law. ;E (G.O. 111 2005 Sec. 581-410. -Receipt of complaint from state civil rights commission. The office is hereby authorized to receive any complaint transferred to it by the state civil rights j I commission pursuant to IC 22-9-1-12.1,IC 22-9.5-4-1 and/or IC 22-9.5-4-8, and to take such action with i respect to any such complaint as is authorized or required in the case of a complaint filed under section 581- 405 of this chapter. i I (.G..O. 111 2005 i;G..0..71.,..2008.,-§29) Sec. 581-411. -Service of complaint on respondent; answer. 1 The administrator shall cause a copy of the complaint to be served by certified mail upon the respondent,who may file a written response to the complaint at any time prior to the close of proceedings with I respect thereto,except as otherwise provided in section 581-414 of this chapter, � I (G.O. 111, 2005,-§1)..._...._.. ----- _....._ i 3 Sec. 581-412. Investigation and conciliation. i (a) Investigation. Within thirty(30)days after receipt of a complaint filed under this chapter,the administrator shall initiate an investigation of the alleged discriminatory practice charged in the complaint.All such investigations shall be made by the office at the direction of the administrator and { may include informal conferences or discussions with any party to the complaint for the purpose of E 1 obtaining additional information or attempting to resolve or eliminate the alleged discriminatory practice I by conciliation or persuasion.The office shall have the authority to initiate discovery,including but not I I limited to interrogatories,requests for production of documents and subpoenas,on approval of the ' administrator.Any request by the office to compel discovery may be by appropriate petition to the i I I ii Marion County Circuit or Superior Courts.The administrator will make a good faith effort to complete ? ? investigations within one hundred(100)days after a complaint has been received.If it is impracticable i to complete the investigation within one hundred(100)days,the administrator may extend the time for 1,+t:,•/I1;1;ro+-tip � ++ir•r►rtP onm IPTUT /17f116/leupll/TTTTTTP1 TNRW R C.145R 1 HURF.FOOP A - 1I6/2012 ARTICLE IV. -COMPLAINT ADJUDICATION Page 4 of 6 conducting the investigation.The administrator shall notify the parties in writing of the reason(s)for the delay. (b) Report of investigation;determination by panel. Unless the complaint has been satisfactorily resolved ! prior to completion of the investigation made under subsection(a)of this section,the administrator shall report the results of the investigation made under subsection(a)of this section to a.predetermined i panel of three(3)members of the board designated by the chairperson or vice chairperson or pursuant i to the rules of the board,which panel shall not include any member of the board who is ineligible to participate pursuant to subsection 581-414(f)of this chapter or who is a member of the complaint adjudication committee created pursuant to_s-ection_581-413 of this chapter.The administrator shall make a recommendation as to whether there Is reasonable cause to believe that the respondent has violated section.581-403 of this chapter.The panel shill then determine by majority vote whether reasonable cause exists to believe that any respondent has violated section.581-403 of this chapter. In j making such a determination,the panel shall consider only the complaint,the response,if any,and the I administrator's report;provided, however,the panel may request the administrator to make a supplemental investigation and report with respect to any matter which it deems material to such determination. 1 (c) Action when violation found If the panel, under subsection(b)of this section,determines that I reasonable cause exists to believe that any respondent has violated section 581403 of this chapter,it i may direct the administrator to endeavor to eliminate the alleged discriminatory practice through a ' I conciliation conference.At least one(1)panel member shall be present at any conciliation conference 6 at which both the complainant and respondent are present or represented. If the complaint is satisfactorily resolved through conciliation,the terms of any agreement reached or undertaking given by any party shall be reduced to writing and signed by the complainant,respondent and the administrator. Any disagreement between the respondent and the administrator in regard to the terms or conditions of I i a proposed conciliation agreement may be referred to the panel which considered the complaint,and the decision of the panel with respect to such terms or conditions shall be final for purposes of ( conciliation proceedings under this subsection,but shall not be binding upon the respondent without his I written consent thereto.The board or office may institute legal proceedings under this chapter for I enforcement of any written agreement or undertaking executed in accordance with this subsection. (G.O. 111,2005,§1;G.0. 79,2008,§30) Sec. 581-413. - Complaint adjudication committee; hearing officer; duties. (a) The chairperson shall designate three(3)members of the board to serve as a complaint adjudication 3 committee,whose duty shall be to hold public hearings on citizens'complaints,which shall be at such times as the adjudication committee or the board deems necessary.All three(3)members of the adjudication committee must be present for any hearing,and no member of the adjudication committee ` E may vote by proxy.in the event that a member of the adjudication committee is unavailable or otherwise precluded from participating in a hearing,either the chairperson or the vice chairperson of the board [ shall take the absent member's place on the adjudication committee unless and until a replacement is appointed. (b) The board may also appoint one(1)or more non-members to serve as unpaid hearing officers,whose duty shall be to hold public hearings and to make determinations in lieu of the adjudication committee on citizens'complaints,other than housing complaints,at such times as the hearing officer or the board deems necessary. i. ._.. (G.0. 111,2006,§1) Sec. 581-414. - Hearings,findings and recommendations when conciliation not effected. j a) Hearing to be held;notice. If a complaint has not been satisfactorily resolved within a reasonable time ( through informal proceedings under section 589-412 of this chapter,or if the panel investigating the i complaint determines that reasonable cause exists to believe a respondent has violated section 5817 i j 403 of this chapter but that a conciliation conference is inappropriate under the circumstances i 3 surrounding the complaint,then the chairperson of the board shall assign the case to the adjudication committee or,in the case of a complaint not related to housing,to either the adjudication committee or ' E ; to a hearing officer.The adjudication committee or the hearing officer may hold a public hearing thereon upon not less than ten(10)working days'written notice to the complainant or other aggrieved person and to the respondent. If the respondent has not previously fled a written response to the complaint,he I or she may file such response and serve a copy thereof upon the complainant and the office not later ! than five(5)working days prior to the date of the hearing. (b) Powers;rights of parties at hearing. In connection with a hearing held under subsection(a)of this section,the adjudication committee or the hearing officer shall have the power,upon any matter pertinent to the complaint or response thereto,to subpoena witnesses and compel their attendance;to I require the production of pertinent books,papers or other documents;and to administer oaths. The complainant shall have the right to be represented by the administrator or any attorney of his or her I t,+*..•�n;t,r.��..,�w ..,.+nr�a�,,,,,/�TTAAT /1 ill I a,/lr��,P1Z/TTTiTTPT THF.WR r)45R 114T TR FFnf1P A__ 1/6/7012 ARTICLE IV. -COMPLAINT ADJUDICATION Page 5 of 6 i choice.The respondent shall have the right to be represented by an attomey or any other person of his or her choice.The complainant and respondent shall have the right to appear in person at the hearing, to be represented by an attorney or any other person,to subpoena and compel the attendance of witnesses,and to examine and cross examine witnesses.The board may adopt appropriate rules for the issuance of subpoenas and the conduct of hearings under this section.The adjudication committee, the hearing officer and the board shall have the power to enforce discovery and subpoenas by appropriate petition to the Marion County Circuit or Superior Courts. i (c) Statement of evidence;exceptions,arguments. Following the close of the hearing,the adjudication committee or the hearing officer shall prepare a report containing written recommended findings of fact ; j and conclusions and file such report with the office.The adjudication committee or hearing officer shall I make a good faith effort to complete the report within thirty(30)working days from the close of the hearing,but may extend the time for completing the report as needed,up to an additional thirty(30) i working days.A copy of the report shall be furnished to the complainant and respondent,each of whom shall have an opportunity to submit written exceptions within such time as the rules of the complaint j adjudication committee shall permit.The adjudication committee or the hearing officer may,in its,his or her discretion,upon notice to each interested party,hear further evidence or argument upon the issues i presented by the report and exceptions,if any. (d) Findings of fact,'sustaining or dismissing complaint,remedies. Upon the preponderance of the evidence,the adjudication committee or the hearing officer shall issue written findings of fact and conclusions,and shall and serve a copy thereof upon the complainant and the respondent.Findings and conclusions made by the adjudication committee or the hearing officer shall be based solely upon j { the record of the evidence presented at the hearing. i If,in the opinion of the adjudication committee or the hearing officer,any respondent has engaged or is I engaging in a discriminatory practice in violation of the chapter,the adjudication committee or the hearing officer may cause to be served on the respondent an order requiring the respondent to cease and desist from the unlawful discriminatory practice and requiring such person to take further affirmative action as will effectuate the purposes of this chapter,including but not limited to: (t) The restoration of complainant's losses incurred as a result of discriminatory treatment, as the adjudication committee or hearing officer may deem necessary to assure justice; I (2) The posting of notice setting forth the public policy of the city and county concerning equal E opportunity and respondent's compliance with such policy in places of public accommodations; i (3) The submission of proof of compliance to be filed by respondent at periodic intervals;and i (4) If the respondent is licensed by a city or county agency authorized to grant a license,the i E submission of a statement to show cause to the licensing agency why his or her license should not be revoked or suspended. i If,in the opinion of the adjudication committee or the hearing officer,any respondent has not engaged in a discriminatory practice in violation of this chapter,the adjudication committee or the hearing officer shall state dismiss the complaint against that respondent. The adjudication committee or the hearing officer shall make a good faith effort to serve its, his or ' her findings and conclusions within one(1)year from the date of receipt of the complaint. If it is impracticable to serve the findings and conclusions within one(t)year from the date of receipt of the complaint,the adjudication committee or the hearing officer may extend the time for serving the findings and conclusions.The adjudication committee or the hearing officer also shall notify the parties in writing of the reason(s)for the delay. f ' (e) Appeal to the board. Within thirty(30)working days after the issuance of findings and conclusions by the adjudication committee or the hearing officer,either the complainant or the respondent may file a i E f written appeal of the decision of the adjudication committee or the hearing officer to the board. if no E j appeal is filed within thirty(30)working days,then the findings and conclusions are final.After I considering the record of the evidence presented at the hearing and the findings and conclusions of the j r adjudication committee or the hearing officer,the board may affirm the decision of the adjudication committee or the hearing officer and adopt the findings and conclusions of the adjudication committee or the hearing officer, or it may affirm the decision of the adjudication committee or the hearing officer i ! and make supplemental findings and conclusions of its own,or it may reverse the decision of the adjudication committee or the hearing officer and make findings of fact and conclusions to support its j decision.The board may also adopt, modify or reverse any relief ordered by the adjudication committee or the hearing officer. The board shall make a good faith effort to take any of the above actions within i f thirty(30)working days after the appeal is filed,but may extend the time as needed,up to an additional thirty(30)working days. j (f) Members of board who are ineligible to participate. No member of the board who initiated a complaint, 1 i who is the subject of a complaint,or who has an immediate family member who is the subject of a complaint shall participate in the adjudication of that complaint as a member of the three-person panel, J the adjudication committee or the board. In the event of an appeal to the board,a board member's participation on the three-person panel or on the adjudication committee shall not be a basis for ! i ineligibility. httD://Iibrarv.munic,ode.com/HTML/]20]6/tevel3/TTTTTTPT TNRWF. C 14'5R t Hi 1R FF.C ()P A z 1AII) t I? ARTICLE IV. -COMPLAINT ADJUDICATION Page 6 of 6 (g) Judicial review.Any respondent who disagrees with a decision of the board rendered pursuant to subsection 581-414(e)of this chapter shall have the right to file a verified petition to the superior or I circuit court of Marion County for a review of the board's decision.The petition for review must be filed within thirty(30)calendar days after the date of issuance of the written decision of the'board.The City i of Indianapolis shall be the sole defendant in the petition for review.Within thirty(30)calendar days after receipt of a summons,the city shall cause the board to file a true and complete copy of the transcript of the hearing with the court.The court,without jury,shall review the record and render its decision as in other administrative reviews.The clerk of the court shall send a copy of the court's decision to the respondent and to the office of equal opportunity,either of whom may appeal the court's decision. (G.O. 111,2005,§1;G.O. 71,2008,§31) Sec. 581-415.- Court enforcement. (a) Institution of action. In any case where the board,the adjudication committee or the hearing officer has ` found that a respondent has engaged in or is engaging in a discriminatory practice in violation of section I 581-403 of this chapter,and such respondent has failed to correct or eliminate such discriminatory # I practice within the time limit prescribed by the board,the adjudication committee or the hearing officer I i and the time limit for appeal to the board has elapsed,the board may file in its own name in the Marion 1 County Circuit or Superior Courts a complaint against the respondent for the enforcement of section 585 1-414 of this chapter.Such complaint may request such temporary or permanent injunctive relief as I may be appropriate and such additional affirmative relief or orders as will effectuate the purposes of this chapter and as may be equitable,within the powers and jurisdiction of the court. (b) Record of hearing;evidentiary value. In any action filed under this section,the board may file with the t court a record of the hearing held by the adjudication committee or the hearing officer under section Q. -414 of this chapter,which record shall be certified by the secretary of the board as a true, correct and i complete record of the proceedings upon which the findings of the hearing officer and/or the board were based.The court may,in its discretion,admit any evidence contained in the record as evidence in the action filed under subsection(a)of this section,to the extent such evidence would be admissible in i court under the rules of evidence if the witness or witnesses were present in court,without limitation upon the right of any party to offer such additional evidence as may be pertinent to the issues and as the court shall,in its discretion, permit. (c) Temporary judicial relief upon filing of complaint. Upon the filing of a complaint under section 581-405 of a` this chapter by a person claiming to be aggrieved,the administrator, in the name of the board and in accordance with such procedures as the board shall establish by rule, may seek temporary orders for j injunctions in the Marion County Circuit or Superior Courts to prevent irreparable harm to the complainant, pending resolution of the complaint by the office, hearing officer and the board. (d) Enforcement of conciliation agreements. If the board determines that any party to a conciliation agreement approved by the administrator under g%tion 581492 of this chapter has failed or refused to i comply with the terms of the agreement,it may file a complaint in the name of the board in the Marion County Circuit or Superior Courts seeking an appropriate decree for the enforcement of the agreement. _..._(G.O. 111,2005 § 1, G.0. 71, 2008,§31) ,E Sec. 581-416. -Other remedies. Nothing in this chapter shall affect any person's right to pursue any and all rights and remedies available in any other local, state or federal forum, ! i j � 3 i i (G,O- 111, 2005,§ 1) ' httn //lihrary rnrinirnrdP rnm/f1TMl .117�t Fi/1PVa1�/TTTTTTPTINFW� r'N51211411R1PZR(10P A I16,11)111'! d In Cd�Ws ��i G� Memorandum '°"` - To: John Voorde, City Clerk � ` l J SINN v LINt ),IN From: Gavin Ferlic, Common Council Member at Large COY Re: Bill 9-12 Date: March 21, 2012 In addition to the documents previously filed in conjunction with Bill 29-06 and Bill 30- 10, included are several other documents. Please accept these documents to be filed in support of Bill 9-12. Attached pleased find: A Statement from the South Bend Human Rights Commission (previously filed) A Resolution of the South Bend Human Rights Commission Supporting an Amendment to the South Bend Human Rights Ordinance Which Prohibits Discrimination in Employment on the Basis of Sexual Orientation or Gender Identity (previously filed) City of South Bend Executive Order No. 1-2009: Prohibition of Discrimination on the Basis of Sexual Orientation or Gender Identity in City Employment (previously filed) List of Cities and Counties in Indiana that have extended protection from discrimination on the basis of sexual orientation and/or gender identity Legal Concerns Regarding Adoption and Enforcement of the Proposed Amendment Adding Sexual Orientation and Gender Identity to the South Bend Human Rights Ordinance Enforcement of Local Civil Rights Protection Under Indiana Law Legal Department Interoffice Memorandum Regarding Common Council Employment Equality Bill #30-10, Case Statistics from Other Cities (previously filed) Legal Brief by Aladean DeRose in Response to a Memorandum by Kathy Cekanski-Farrand (previously filed) Additional Legal Arguments in Support of Bill #9-12 - __..,mission South end Human Rights Com,,,,.,_., January 19, 2005 "The South Bend Human Rights Commission is an agency of the City of South Bend, Indiana, committed to fair and equal treatment of all human beings. It is the responsibility and duty of the Human Rights Commission to make sure that no human being is mistreated based on status, without making value or moral judgments. "Gays, lesbians, bisexuals and transgendered (G,L,B&T) persons have experienced mistreatment based on their G,L,B&T status. The South Bend Human Rights Commission supports and encourages the South Bend Common Council to hear from the general public, to explore, investigate and to determine the degree to which G,L,B&T persons have been treated adversely within the City of South Bend due to their G,L,B&T status. The South Bend Human Rights Commission further encourages the South Bend Common Council, working cooperatively with the South Bend Human Rights Commission, to create an appropriate remedy." CITY OF SOUTH BEND,INDLANA EXECUTIVE ORDER NO. 1-2009 PRomir`ION gF DISC 'ATION ON THE BAS ITS OF SEX16AL'ORIENTATION OR GENDER LDEIw T fY IN E CTTY EWLOYMENT WHEREAS,this Administration i.s committed to the principles ofequal employment opportunity as set forth in federal,state and local law,and treats its employees and prospective employees without regard to race,color,disability,religion,sex,age,national origin or veteran status;and i WHEREAS,it is the policy of this Administration to provide equal opportunity in all city employment and to prohibit discriminatory Went from playing any role in such employment; and WHMEAS,it is the goal of this Administration that discrimination on the basis of sexual orientation or gender identity in city employment shall not be tolerated,and i WHEREAS,this Administration believes denying equal opportunities based on sexual orientation or gender identity is contrary to the principles of freedom and equality of opportunity and is a burden to the objectives of the city's policies; and WHEREAS,the successful implementation of this policy requires the participation and cooperation of all Departments and Divisions of the City of South Bend, NOW, THEREFORE,by virtue of the authority vested in me as the Chief Executive and Administrative Officer of the City,and pursuant to Indiana Code 36-4-5,it is hereby ordered as follows: 1. Discrimination on the basis of sexual orientation or gender identity in any city i employment is hereby prohibited - 2. The Department of Administration and Finance shall modify all materials containing the city's Equal Employment Opportunity Policy to include a prohibition against discrimination on the basis of sexual orientation or gender identity when those materials are next printed.The Department shall also review the city's Employee Manual and modify it as necessary to reflect the policy set forth in this Executive Order when those materials are next printed. Memoranda amending such materials shall be distributed in the interim. 3. The Division of Human Resources shall include the prohibition against sexual s orientation or gender identity discrimination is any curricula of training in which the city's Equal Employment Opportunity Policy is addressed. 3 E 4. The heads of all City Departments shall affirm their commitment to the city's policy against discrimination on the basis of sexual orientation or gender identity and shall appropriately communicate their support throughout their respective Departments. The Department Heads shatl assure all appropriate departmental documents include standard language prohibiting discrimination on the basis of sexual orientation orgender identity. The Department Heads shall promptly supply documentation concerting their efforts to the Cary Controller. 5. City employees who believe they have been discriminated against on the basis of their sexual orientation or gender identity are encouraged to report the facts giving rise to their belief to their supervisor,Department Head or Human Resources representative,who shall investigate the allegations promptly and thoroughly and attempt to resolve the issue in the same manner provided for individuals alleging diserimitaation on other grounds. C. Individuals who are not city employees but who believe they have been discriminated against on the basis.of their sexual'orientation or gender identity in their application to the city for employment shall be encouraged to report the facts giving rise to their belief to the Division of Human Resources,which shall contact the involved parties,investigate the allegations promptly and thoroughly,and attempt to resolve the issue in the same manner provided for individuals alleging discrimination on other grounds. 7. This Executive Order shall become effective immediately upon execution. DATED this day of u-K-�----- ,2009. CITY OF SOUTH BEND,INDIANA I S-fEPH13N J. MZCKE,MAYOR Approved as to Form and Legality s f By: Charles S. Leone,City Attorney i i List of cities and counties in Indiana that have extended protection from discrimination on the basis of sexual orientation and/or gender identity to their citizens as of March 20, 2012: Bloomington Fort Wayne Michigan City Indianapolis Lafayette West Lafayette County of Tippecanoe Marion County List of cities and counties in Indiana that have had successful legal challenges to the aforementioned laws as of March 20, 2012: [this space intentionally left blank] ejolu LEGAL DEPARTMENT' INTEROFFICE MEMORANDUM r +r rs63 T©:. Charles S. Leone City Attorney FROM: Aladean M. DeRose Chief Assistant City Attorney RE: Common Council Employment Equality Blli#30-10 Case Statistics From Other Cities DATE: June 30, 2010 You asked me to check recent case statistics from Indiana cities which have adopted some form of discrimination protection based on sexual orientation or gender identity. The cities with such legislation are: 'Indianapolis (and Marlon County), Michigan City, Lafayette, Bloomington, Fort Wayne, and Terre Haute. Bloomington and Terre Haute clearly limit their authority of sexual orientation claims to Investigation and conciliation. Bloomington, in fact, limits its authority to"voluntary investigation and voluntary mediation." (Bloomington Code# 2.21.150) while Terre Haute limits its enforcement authority in all discrimination cases. Indianapolis, Lafayette and Michigan City do not appear to limit sexual orientation cases to conciliation action, but permit assessment of damages for violations. Only the cities of Bloomington, Indianapolis, and Terre Haute responded to our 1 request for statistical information. Here is what we found: 1. Bloomington (Population: 69,291) (Sexual Orientation Ordinance adopted in i .1993 — "gender identity" added in 2009) 22 Claims filed since adoption (only one case of gender identity) 17— Employment 4— Public Accommodation 1 -Housing f No probable cause—9 Withdrawal or dismissal due to noncooperation--6 Remainder (7) were settled before the Human Rights Commission made a finding. In no case did the Respondent refuse to participate. 2. Indianapolis (Population: 807,584)} 2008 — 6 Complaints 2—Settled 1 —Withdrawn 1 —Denied due to Statute of Limitations 2— No reasonable cause 2009 — 4 Complaints 1 —Withdrawn for failure to cooperate 3 —No reasonable cause 2010 - 7 Complaints Investigation incomplete as of June 10, 2010 3. Terre Haute (Population: 55, 614) No claims in 3 years I have asked intern Matt Hall to send follow ups to Lafayette, Michigan City and Fort Wayne so we can get information from them. If you wish to review the actual data we received, let me know. Bloomington gave us a detailed summary of the actual facts of every case they investigated. " Nate—Statistics from the Indianapolis office presumably included Marion County cases because the agency is known as the "Indianapolis/Marion County Office of Equal Opportunity." Leval Concerns Regarding Adoption and Enforcement of the Proposed Amendment Adding Sexual Orientation and Gender Identity to the South Bend Human Rights Ordinance I. ISSUES PRESENTED AND SHORT ANSWERS A. Issues Two primary questions have been raised regarding the adoption and "enforceability"of the proposed amendment adding sexual orientation and gender identity as statuses protected by the South Bend Human Rights Ordinance (the "Ordinance"): ® Does the South Bend City Council have the power to amend the Ordinance to include classes of persons who are not currently protected by the Indiana Civil Rights Act, or would such an amendment be ultra vices—that is beyond the Council's power—and, therefore, void and outside the enforcement powers of the South Bend Human Rights Commission? 9 Is the proposed amendment likely to be upheld if it is challenged on federal equal protection grounds? B. Short answers The Indiana Home Rule Act grants the South Bend City Council very broad powers and allows it to make the proposed amendment so long as the proposed amendment does not conflict with the Indiana Civil Rights Act. No such conflict is apparent from either the plain language of the Indiana Civil Rights Act or Indiana case law. Enforcement by the Human Rights Commission should not be an issue so long as the proposed amendment itself is valid. There are also strong legal arguments against a federal equal protection challenge. The proper standard of review for such a challenge would be"rational relationship,"not "strict scrutiny" analysis. Consequently, focus on whether there is a "compelling governmental interest"necessitating the proposed amendment is misplaced. It should not be difficult for the City of South Bend to demonstrate a rational relationship between the amendment and the City's legitimate desire to protect gay, lesbian, bisexual, and transgendered("GLBT")persons from discrimination and create a level playing field in the areas of employment and housing. H. FACTS On March 11, 2005, the Office of the City Clerk received a letter from Aladean DeRose, Chief Assistant Attorney and legal counsel to the South Bend Human Rights Commission. Ms. DeRose attached a document to her letter entitled"Gays, Lesbians, Bi- sexuals, and Transgendered Persons: Position Statement of the South Bend Human Rights Commission." This document stated: The South Bend Human Rights Commission is an agency of the City of South Bend, Indiana, committed to fair and equal treatment of all human beings. It is the responsibility and duty of the Human Rights commission to make sure that no human being is mistreated based on status,without making value or moral judgments. Gays, lesbians, bisexuals and transgendered(G, L, B &T)persons have experienced mistreatment based on their G, L, B &T status. The South Bend Human Rights Commission supports and encourages the South Bend Common Council to hear fr om the general public, to explore, investigate and determine the degree to which G, L, B &T persons have been treated adversely within the City of South Bend due to their G, L, B & T status. The South Bend Human Rights Commission further encourages the South Bend Common Council, working cooperatively with the South Bend Human Rights Commission,to create an appropriate remedy. Subsequently, Council Members Charlotte Pfeiffer and Roland Kelly co- sponsored Bill 29-06 to amend the South Bend Human Rights Ordinance to include sexual orientation and gender identity(the "proposed amendment'). The Council has held public hearings on the proposed amendment. From the hearings, and otherwise, the legislative record is filled with examples of sexual orientation and gender identity discrimination in the City of South Bend. The sources of this evidence include, but are not limited to: m information from community forums; the interview-based survey of local GLBT individuals prepared by South Bend Equality (a study approved by the Institutional Review Board at Saint Mary's College, Notre Dame, IN,presented to the Personnel and Finance Committee in 2005); • nationaI, regional and local studies; • news reports; • the Indiana Civil Rights Hate Crimes Reporting Network; • the"South Bend Equality Documentation in Support of Bill 29-06" (presented to the Personnel and Finance Committee in 2006); and, • a wide range of public comments. 2 From this evidence, it is clear that victims of sexual orientation/gender identity discrimination have nowhere to turn and no recourse under current state or federal law. Many other Indiana jurisdictions prohibit discrimination on the basis of sexual orientation and/or gender identity, including the cities of Indianapolis (2005), Lafayette (1993), West Lafayette(1993), Bloomington (1993, 2006),Fort Wayne(2001), and Michigan City(2002). In 2001, Governor O'Bannon issued an Executive Order prohibiting discrimination on the basis of sexual orientation in state agencies. Governor Keman extended that protection to transgendered people in 2004. Governor Daniels' state employment policy likewise protects state employees from discrimination based on both sexual orientation and gender identity. The federal government also recognizes that there is a serious problem with discrimination against GLBT persons. In 1998 President Clinton signed Executive Order 13087 to prohibit federal employment discrimination on the basis of sexual orientation. The U.S. Senate Committee on Health, Education, Labor and Pensions filed a report in 2002 to accompany Senate Bill 1284 which stated: "[t]he problem of sexual orientation discrimination in the workplace is wide-spread and well-documented." In 2005, the U.S. House Committee on Government Reform stated"that Congressional intent as well as current policy and practice prohibit Federal employment discrimination on the basis of`sexual orientation"'. On July 31, 2005, the Executive Director of the Indiana Human Rights Commission, Gregory K. Scott, gave his views on gay rights to the South Bend Tribune: Q, Indiana law does not protect gays and lesbians from discrimination in employment, in housing, in education, in public accommodations. What's wrong with this picture? A. I think it's something that needs to be revisited. I think it is something that the legislature will have to address. And I think very much, in light of the governor's executive order regarding employment of individuals by the state, it seems to me that it is inappropriate to deny a person certain fundamental rights based on their sexual orientation. It is clear that this proposed amendment is both timely and necessary to remedy real wrongs to GLBT persons in the area of employment and housing in South Bend, Indiana. 3 III.DISCUSSION A. South Bend has the power under Indiana law to amend and enforce its Human Rights Ordinance. 1. The Indiana Hoene Rule Act affords the South Bend City Council very broad powers. The Indiana Home Rule Act states in pertinent part: IC 36-1-3-2 Policy Sec. 2. The policy of the state is to grant units [i.e. cities, towns, counties] all the powers that they need for the effective operation of government as to local affairs. IC 36-1-3-3 Rule of law; resolution of doubt as to existence of power of a unit Sec. 3. (a) The rule of law that any doubt as to the existence of a power of a unit shall be resolved against its existence is abrogated. (b)Any doubt as to the existence of a power of a unit,Shall be resolved in favor of its existence. . . . . IC 36-1-34 Rule of law; powers of unit (b)A unit has: (1) all powers granted it by Act; and (2)all other powers necessary or desirable in the conduct of its affairs, even though anted by Act. (c) The powers that units have under subsection (b)(1) are listed in various Acts. However, these Acts do not list the powers that units have under subsection (b)(2); therefore, the omission of a power from such a list does not imply that units lack that power. 4 IC 36-1-3-8 Powers specifically withheld (a) Subject to subsection (b), a unit does not have the following: (7) The power to regulate conduct that is regulated by a state agency, except as expressly granted by Act. I United States District Judge Sarah Evans Barker, collecting and relying on case law from the Indiana appellate courts, recently summarized the scope and effect of the .Indiana Home Rule Act: Enacted in 1950, the Indiana Home Rule Act abrogated the traditional rule that local government powers were limited only to those expressly granted by state statute. City of Gary v. Indiana Bell Telephone, Co., 732 N.E.2d 149, 153 (Ind. 2000); Ind. Code § 36-1- 3-4(a). The Home Rule Act grants county governments "all powers granted it by statute"and"all other powers necessary or desirable in the conduct of its affairs, even though not granted by statute." Ind. Code §§ 36-1-3-4(b)(1) and(2). The Home Rule Act further directs that: "Any doubt as to the existence of a power of a [county] shall be resolved in favor of its existence."Ind. Code 36-1-3-3(b). These broad grants of power to local governments were intended to further the state's policy of"granting [counties] all the powers that they need for the effective operation of government as to local affairs."Ind. Cade § 36-1-3-2. Despite this broad grant of authority, the Home Rule Act nonetheless imposes two limits important to a resolution of this case. First, the Home Rule Act mandates: "If there is a constitutional or statutory provision requiring a specific manner for exercising a power, a [county] wanting to exercise the power must do so in that manner." Ind. Code 36-1-3-6(a). Second, the Home Rule Act specifically withholds from local governments "the power to regulate the conduct that is regulated by a state agency, except as expressly granted by statute."Ind. Code 36-1-3-5(a)(7). The Home Rule Act defines the term "regulate"to include licensing, inspecting, or prohibiting. Ind. Code 36-1-2-15. However, even in the categories regulated by state The Home Rule Act defines the term"regulate"to include licensing, inspecting, or prohibiting. Ind. Code § 31-1-2-15. 5 enforce it,those doubts were resolved in Yellow Cab v. Williams, 583 N.E.2d 774 (Ind. Ct. App. 1991). There, the Indiana Court of Appeals explicitly stated: In this case,the legislature has granted local governments the authority to create local human rights commissions. IC 22-9-I- 12.1(b).. The City of Bloomington has an ordinance designating the Commission authority to award compensatory damages to victims of unlawful discrimination in public accommodations. The enabling Act grants local commissions authority to investigate civil rights complaints, appoint hearing examiners, make findings and recommendations, issue orders requiring remedial action, and "[o]rder payment of actual damages, except that damages to be paid as a result of discriminatory practices relating to employment shall be limited to lost wages, salaries, commissions,or fringe benefits."IC 22-9-1-12.1(c)(8). 583 N.E.2d at 778 (emphasis added). Clearly, South Bend has the right to enact and amend its Human Rights Ordinance, and the.South Bend Human Rights Commission has the power to enforce the Ordinance as amended. 3. The proposed amendment is "logically consistent with the statutory purpose"of the Indiana Civil Rights Act and does not"seek to prohibit that which [the Indiana Civil Rights Act] expressly permits." The Indiana Civil Rights Act states the following about the public policy considerations that led to its enactment, its purpose, and its proper construction: IC 22-9-1-2 Public policy; construction of chapter Sec. 2. (a) It is the public policy of the state to provide all of its citizens equal_opportunity for education,emn[oy_ment, access to public conveniences and accommodations, and acquisition through piqLchase or rental of real p jpAerty, including but not limited to housing, and to eliminate segregation or separation based solely on race,religion, color, sex2, disability, national origin or ancestry, since such segregation is an impediment to a The Indiana Civil Rights Commission and Indiana courts consistently follow Seventh Circuit precedent when handling discrimination claims. See, e.g., Indiana Civil Rights Commission v.Adler, 714 N,E.2d 623, 636 (Ind. 1999). The Seventh Circuit has ruled that discrimination against transgendered persons because of their transgendered status is not discrimination because of sex. Ulane v. Eastern Airlines, 742 F.2d 1081 (7th Cir. 1984). There is no reason to believe that either the Indiana Civil Rights Commission or Indiana courts would find otherwise. 8 equal opportunity. Equal education and employment opportunities and equal access to and use of public accommodations and equal opportunity for acquisition of real property are'hereby declared to be civil rights. (b)The practice of denying these rights to properly qualified persons by reason of the race,religion, color, sex, disability, national origin, or ancestry of such person is contrary to the principles of freedom and equality of opportunity and is a burden to the objectives of the public policy of this state and shall be considered as discriminatory practices. The promotion of a ual opportunity without regard to race, religion,color,sex, disability,national origin, or ancestry through reasonable methods is the purpose of this chapter. (c)It is also the public policy of this state to protect employers, labor organizations, employment agencies,property owners, real estate brokers,builders, and lending institutions from unfounded charges of discrimination. (d) It is hereby declared to be contrary to the public policy of the state and an unlawful practice for any person, for profit,to induce or attempt to induce any person to sell or rent any dwelling by representations regarding the entry or prospective entry into the neighborhood of a person or persons of a particular race, religion, color, sex, disability, national origin, or ancestry. (f) This chapter shall be construed broadly to effectuate its Propose. (emphasis added). As noted above, according to the Indiana Supreme Court, "[a]n impermissible conflict with state law will be found if[an) Ordinance seeks to prohibit that which a statute expressly permits. . . . (However,llocal oyg ernments may_impose additional, reasonable regulations and supplement burdens imposed by non:Renal state law,provided the additional burdens are log_icaliy consistent with the statutoKy purpose."Indiana Department of Natural Resources v. Newton County, 802 NE.2d 430(Ind. 2004)(emphasis added); see also, Yater v. Hancock Co. Planning, 614 N.E.2d 568 (Ind, Ct. App. 1993)(zoning ordinance and comprehensive plan regulating land use because of traffic safety considerations goes beyond,but is consistent,rather than in conflict, with state statute concerning regulation of traffic on highways). 9 The stated purpose of the Indiana Civil Rights Act is "[t]he promotion of equal opportunity without regard to race, religion,color, sex,disability,national origin, or ancestry through reasonable methods."IC 22-9-1-2(b). The Act does not include sexual orientation and gender identity as protected statuses, but it also does not state that it is acceptable to discriminate because of these statuses. It certainly cannot;be said that the Act"expressly permits"'discrimination on the.basis of either of these statuses. Accordingly, the first hurdle is met—there is no clear"conflict"with the statute. The only remaining question is whether the inclusion of sexual orientation and gender identity in the Ordinance is logically consistent with the purpose of the Indiana Civil Rights Act. This must be answered in the affirmative.. The"public policy statement"in IC 22-9-1-2(a) speaks about equal opportunity for all citizens not only those in the specifically enumerated protected classes. And the"construction guidance" in IC 22-9-1-2(f) states that the Act is to be "construed broadly." In broadest terms, the Act's goal is ending discrimination and providing equal opportunity in employment and housing for all of Indiana's citizens. The evidence presented to the South Bend City Council demonstrates that South Bend cannot meet this ultimate goal unless it explicitly prohibits discrimination on the basis of sexual orientation and gender identity in addition to discrimination 6n the basis of race, religion, color, sex, disability, national origin, and ancestry. Unquestionably, the proposed amendment to the Ordinance is no more than a necessary, logical extension with the same goal as the Indiana Civil Rights Act—the elimination of discrimination and the provision of equal opportunity for all those who live in South Bend. B. The proposed amendment does not violate the federal constitutional right to equal protection of the lave. 1. Background for equal protection analysis. According to the United States Supreme Court: The Equal Protection Clause of the Fourteenth Amendment commands that no State shall "deny to any person within its jurisdiction the equal protection of the laws,"which is essentially a direction that all persons similarly situated should be treated alike. Section 5 of the Amendment empowers Congress to enforce this mandate,but absent controlling congressional direction, the courts have themselves devised standards for determining the validity of state legislation or other official action that is challenged as denying equal protection. The general_rule is that legislation is presumed to be valid and will be sustained if the classification drawn by the statue is rationally_related to a legitimate state interest. When social or economic legislation is at issue,the Equal Protection Clause allows the States wide latitude, and the Constitution 10 presumes that even improvident decisions will eventuaIly be rectified by the democratic processes. The general rule gives way;however,when a statute classifies by race, alienage, or national origin.These factors are so seldom relevant to the achievement of any legitimate state interest that the laws grounded in such considerations are deemed to reflect prejudice and antipathy --a view that those in the burdened class are not as worthy or deserving as others. For these reasons and because such discrimination is unlikely to be soon rectified by legislative means, these laws are subjected to strict scrutiny and will be sustained only if they are suitably tailored to serve a compelling state interest. Similar oversight by the courts is due when state laws impinge on personal rights protected by the Constitution. Legislative classifications based on gender also call for a heightened standard of review. That factor generally provides no sensible ground for differential treatment . . . . A gender classification falls unless it is substantially related to a sufficiently important governmental interest. Because illegitimacy is beyond the individual's control. . . . discriminations resting on that characteristic are also subject to somewhat heightened review. Those restrictions "will survive equal protection scrutiny to the extent they are substantially related to a legitimate state interest." We have declined, however, to extend heightened scrutiny review to differential treatment based on age. . . . . The lesson of Murgia [the age case] is that where individuals in the group affected by a law have distinguishing characteristics relevant to interest the State has the authority to implement, the courts have been very reluctant, as they should be in our federal system and with our respect for the separation of powers, to closely scrutinize legislative choices as to whether, how and to what extent those interests should be pursued. In such cases, the Equal Protection Clause requires only a rational means to serve a legitimate end. City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 440-441 (1985) (citations omitted) (emphasis added). Race, alienage, and national origin--the classifications to which the U.S. Supreme Court has afforded the benefit of"strict scrutiny"analysis—are commonly referred to as "suspect classes"in federal case law. See, e.g., Nabozny v Podlesny, 92 F.3 d 446, 458 (7th Cir. 1996). Sex and illegitimacy—the classifications granted 11 heightened or intermediate scrutiny analysis—are commonly referred to in federal case law as "quasi-suspect"classes. Id. In order to challenge the proposed amendment on equal:protection grounds—and have a court apply.a"strict scrutiny"test rather than a"rational relationship"test—GLBT rights opponents would have to assert that(1)landlords and employers(or tenants and employees) are a suspect class, (2) GLBT persons are a suspect class, or(3) the Ordinance as amended somehow burdens a fundamental personal right of the landlords, employers, tenants, or employees. It is highly unlikely that GLBT rights opponents would make the first or second argument, and it appears equally unlikely that they would prevail on the third. 2. There is no suspect class at issue here. At first glance, the United States Supreme Court case that might seem most closely analogous to this situation is City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989). In Croson, the City of Richmond passed a municipal city ordinance that created minority set-asides in the awarding of government contracts. In other words, the ordinance created a preference for minority contractors; the minority contractors had to be awarded a certain percentage of government construction contracts. Non-minority contractors challenged the ordinance on equal protection grounds. The U.S. Supreme Court, applying a strict scrutiny standard, found that the ordinance violated the Equal Protection Clause because there was no compelling governmental interest supporting a racial preference. In other words, there was no compelling governmental interest that required race-based discrimination against non-minority contractors. The Croson Court applied a strict scrutiny analysis to the equal protection claim because, under the ordinance at issue, non-minority contractors were de facto being discriminated against on the basis of race(a suspect class). The Court reasoned that, because it applied strict scrutiny in cases where racial minorities were claiming equal protection violations, it had to apply'the same level of scrutiny when non-minority persons claimed that they had been denied equal protection because of preferences granted to racial minorities. Neither Croson, nor its strict scrutiny standard, should have any bearing on the proposed amendment. It is critically important to realize that by adding sexual orientation and gender identity to the Ordinance, South Bend would not be giving GLBT persons any preference,because of their sexual orientation or gender identity. To the contrary, the purpose of the amendment is to grant GLBT persons a level playing field with non-GLBT persons in employment and housing. The proposed amendment would neither force employers to hire a particular quota of GLBT persons, nor force landlords to offer housing to a particular number of GLBT persons. In other words, the proposed amendment would not exclude non-GLBT persons from any housing or employment opportunities because of their non-GLBT status. 12 If someone could demonstrate that the proposed amendment awards a preference rather than leveling the playing field, such a demonstration would accomplish very little. For opponents of the proposed amendment to obtain strict scrutiny analysis, they would have to show that there is a suspect class involved. It goes without being said that neither landlords and employers nor non-GLBT tenants and employees form suspect classes. There is no immutable characteristic like race or alienage that binds such people together. Obviously, in light of Croson, the more important question to ask is whether GLBT persons are likely to be identified as a'suspect class. If they are—and if the proposed amendment granted a preference—then landlords and employers might be able to formulate an argument that if they follow the Ordinance as amended, then their non- GLBT tenants and employees will be denied equal protection. While such an argument seems far fetched, it seems even more far fetched to suggest that an opponent to GLBT rights would advance such an argument. The last thing the opponents to this proposed amendment want to do is open the door to a finding that GLBT persons are a suspect class because, as discussed below, such a finding would actually benefit GLBT persons in fixture cases where GLBT persons claimed a violation of equal protection. To date,no federal court has been willing to find that GLBT persons are a suspect class. In Romer v. Evans, 517 U.S. 620 (1996), the United States Supreme Court could easily have made this determination, but the Court side-stepped the issue. Post-Romer, the Sixth Circuit, when faced with the constitutionality of a referendum reversing a gay rights amendment to an ordinance, specifically ruled that GLBT persons are not a suspect class. Equality Foundation of Greater Cincinnati, Inc. v. City of Cincinnati, 128 F.3d 289 (6th Cir. 1997). It is simply not clear what the United States Court of Appeals for the Seventh Circuit, which has jurisdiction over causes appealed from Federal District Courts in Indiana, would.do if it was forced to address the question of whether GLBT persons form a suspect class for equal protection purposes. Prior to Romer, the Court stated, "[t]here can be little doubt that homosexuals are an identifiable minority subjected to discrimination in our society." Nabozny, 92 F.3d at 457. In Nabozny, the Court addressed claims of a gay high school student who alleged that he had been denied equal protection of the laws after his school refused to prevent or remedy severe bullying by other students. The Court found that there was "no conceivable state of facts that would provide a rational basis for the [school's] conduct."Id. at 458. In other words, the school's lack of action was so reprehensible that it could not even survive a"rational relationship"challenge. The Court noted that the particular context of the equal protection claim before it did not require the Court to express an opinion as to whether sexual orientation is an "obvious, immutable, or distinguishing" characteristic deserving of strict or heightened scrutiny in equal protection'analysis.Id. Nevertheless,the Court stated, "it does seem dubious to suggest that someone would choose to be homosexual, absent some genetic predisposition, given the considerable discrimination leveled against homosexuals."Id. 13 There is nothing in Romer that would prevent the Seventh Circuit from finding that that a classification on the basis of sexual orientation and gender identity is a suspect classification, requiring strict scrutiny analysis. The Sixth Circuit's decision in Equality Foundation does not bind the Seventh Circuit in any way. And Nabozny suggests that some members of the Seventh Circuit might be willing to make the suspect classification finding. Accordingly,those opposed to GLBT rights certainly do not want to present a Crosson-based"reverse"equal protection argument to the Seventh Circuit. If the Seventh Circuit were to find that GLBT persons are a suspect class,it would force South Bend to show a compelling governmental interest in preventing discrimination to have the proposed amendment upheld in this particular case. However, such a funding, while making it harder for South Bend to make its case regarding the proposed amendment, would actually advance the cause of GLBT rights. Opening this door would allow GLBT persons to receive the benefit of the higher standard of strict scrutiny-when challenging a wide variety of governmental actions other than the proposed amendment. The odds against GLBT rights opponents pressing an argument of this nature in an attempt to have the proposed amendment declared unconstitutional appear to be very high.3 3. The proposed amendment would not burden any fundamental rights of landlords or employers. The only other circumstance in which a reviewing Court would apply strict scrutiny analysis to the proposed amendment would be if the Ordinance as amended violated a fundamental constitutional right of a challenging landlord or employer or its tenants or employees. The argument might be that the proposed amendment would violate such entity's or person's First Amendment right to freedom of association. This is unlikely to be a winning argument. a. Intimate associations are not implicated. The United States Supreme Court has identified two types of"freedom of association rights"that the First Amendment protects. The first is the right to "intimate association." This protects "choices to enter into and maintain certain intimate human relationships [without) undue intrusion by the State because of the role of such relationships in safeguarding the individual freedom that is central to our constitutional scheme." Roberts v. United States Jaycees,468 U.S. 609, 617 (1984). The types of relationships protected here those akin to marriage and family relationships. See, e.g., City of Dallas v Stanglin, 490 U.S. 19(1989) (dance hall patrons not engaged in the sort of intimate human relationships contemplated by Roberts; no constitutionally protected right to "social association"of this sort);Klupt v. City of Chicago, No. 88 C 7528, 1989 3 It is important to emphasize that GLBT persons need not be a suspect class for equal protection purposes to receive the benefit of protection under anti-discrimination laws. The U.S. Supreme Court has never said that either those over 40 or disabled persons were a suspect class, but both of these statuses are protected under anti- discrimination laws at the federal, state, and local level. 14 U.S. Dist. LEXIS 3631 (N.D. III. April 3, 1989)(relationships with co-workers not the type of protected intimate human relationships considered in Roberts). If the relationships among dance hall patrons and among co-workers are not protected"intimate associations,"there can be no question that the relationships between private employers and their employees and private landlords and their tenants also fall outside the protected category of"intimate associations." See also, Roberts,468 U.S. 609 ("The Constitution undoubtedly imposes constraints on the State's power to control the selection of one's spouse that would not apply to regulations affecting the choice of one's fellow employees.");Hyman v. City of Louisville, 131 F. Supp.2d 528, 543 (W.D. KY 2001), overruled on other grounds, 53 Fed. Appx. 740(6th Cir. 2002) (relationship between and employer and employees not an intimate association deserving constitutional protection). b. Landlords and employers cannot demonstrate that their businesses are expressive association. The second type of"freedom of association right"is the"right to associate for the purpose of engaging in those activities protected by the First Amendment—speech, assembly, petition for the redress of grievances, and the exercise of religion." Roberts, 468 U.S. at 618. This is otherwise known as "expressive association." See Boy Scouts of America v. Dale, 530 U.S. 640, 648 (2000) (Boy Scouts of America is an"expressive association"one purpose of which is to inculcate youth with values of being"morally straight" and"clean.") "The First Amendment's protection of expressive association is not reserved for advocacy groups. But to come within its ambit, a group must engage in some form of expression, whether it be public or private."Id. It would be extremely difficult, if not impossible, for the vast majority of private employers and landlords to demonstrate that their businesses normally"engage in expression"that would be suppressed or otherwise negatively impacted if they were prevented from discriminating against GLBT persons. Simply put,unlike the Boy Scouts in Dale, it is normally not a principal mission of private employers and landlords to profess and inculcate specific values in their employees or tenants—ofto convey any other particular social, moral, religious, or political message. To the contrary, the purpose of private employers and landlords is to make money—not to make moral, social,political, or religious statements about GLBT persons or anyone else. See New York State Club Association v. City of New York, 487 U.S. I (198 8) (most private clubs with over 400 members were not created for, and do not regularly engage in, expressive activities deserving constitutional protection). Moreover, even if"invidious private discrimination may be characterized as a form of exercising freedom of association protected by the First Amendment, . . . it has never been accorded affirmative constitutional protections." Hishon v.King&Spaulding, 467 U.S. 69, 78 (1984).4 4 This exact same analysis would apply if employers or landlords brought a pure First Amendment Freedom of Association challenge without raising equal protection issues. 15 4. The proper standard of review is the easily met rational relationship standard. In light of the foregoing, it is highly unlikely that any Court would ever apply strict scrutiny in addressing an equal protection challenge to the proposed amendment. Instead, the applicable standard is"rational relationship," sometimes called "rational basis,"scrutiny,which the United States Supreme Court itself has described as "the most relaxed and tolerant form of judicial scrutiny under the Equal Protection Clause." City of Dallas v. Staglin, 490 U.S. at 26. All South Bend would have to show is that the inclusion of sexual orientation and gender identity in the Ordinance has some rational relationship to a legitimate interest of the City of South Bend. Id.; City of Cleburne, 473 U.S. at 446. Moreover, "[i]n the local economic sphere, it is only the invidious discrimination, the wholly arbitrary act, which cannot stand consistently with the Fourteenth Amendment." Id. Unquestionably, South Bend can show without difficulty that adding GLBT persons to the list of those against whom employers and landlords may not discriminate is rationally related to the City's legitimate interest in creating a level, discrimination free playing field for all of those who work or rent property in South Bend. IV. CONCLUSION Indiana municipalities have the statutory authority to create and amend their civil rights ordinances pursuant to the Indiana Home Rule Act and the Indiana Civil Rights Act. The Home Rule Act grants municipalities broad powers, and Indiana Courts have construed the Act broadly. Adding sexual orientation and gender identity as protected classes does not conflict with the Indiana Civil Rights Act. Indiana Courts have repeatedly ruled that conflict exists between a local ordinance and a state statute only where an ordinance forbids that which the statue permits, not where an ordinance merely supplements the protections that the statute already provides. Such supplemental burdens need only be logically consistent with the statutory purpose. The stated purpose of the Indiana Civil Rights Act is "the 12romotion of a ual opportunity without regard to race, religion, color, sex, disability, national origin, or ancestry through reasonable methods." The explicitly stated public policy underlying the Indiana Civil Rights Act is to end discrimination and provide equal opportunity in employment and housing for all of the state's citizens. The evidence presented to the South Bend City Council clearly shows that South Bend cannot promote equal opportunity for all of its citizens without adding sexual orientation and gender identity to the Ordinance. The proposed amendment is unquestionably logically consistent with the statutory purpose and broad public policy underlying the Indiana Civil Rights Act. Existing case law suggests that a federal equal protection challenge to the proposed amendment would meet with little success. Based on the legislative record described above, South Bend should be able to demonstrate a compelling governmental interest in protecting GLBT persons from discrimination. It is, however, highly unlikely that the City would have to make such a showing if faced with a federal equal protection challenge. The appropriate standard of review for a Court to apply when conducting an 16 equal protection analysis of the proposed amendment is that of"rational relationship." South Bend should have Iittle difficulty showing that adding GLBT persons to the list of those against whom employers and landlords may not discriminate is rationally related to the legitimate interest of the City of South Bend in creating a level, discrimination-free playing field for all of those who work or rent property in South Bend. 17 Enforcement of Local CM Rip-hts Protection Under Indiana Law uestion; Can the City of South Bend enact and enforce an ordinance prohibiting discrimination on the basis of sexual orientation and gender identity when the State's Civil Rights statute does not include sexual orientation or gender identity as protected classes? Answer: Yes. Based upon the Horne Rule statute, the Civil Rights statute, the City's police powers and case law, the City of South Bend can enact an ordinance prohibiting discrimination based upon sexual orientation and gender identity. Since Indiana law specifically authorizes cities to adopt ordinances to effectuate the state's civil rights public policy, there is no conflict with existing state taw. The enforcement mechanism for this ordinance is the City's Human Rights Commission. Table of Contents: 1. Introduction II. Discussion 1. Is authority given to the South Bend to remedy discrimination by amending the Human Rights Ordinance? YES,pursuant to: A. Indiana Code 36-1-3 (Biome Rule) B. Indiana Code 22-9-1 (Civil Rights) C. City's police powers under common law D. case law 2. what is the standard of review for the proposed legislation? Is there compelling government interest to amending the Ordinance? YES,there is compelling government evidence to meet the standard of strict scrutiny. 3. Is there a factual basis of discrimination occurring in the City of South Bend showing the need to address such discrimination in order to prove that the amendment would remedy identified discrimination? YES, a factual basis of discrimination has been demonstrated. III. Conclusion 1. Introduction In this memo, we would like to address issues surrounding the enforceability of the proposed amendment. First, we would like to make a distinction between "enforcing" and"enacting"the ordinance. When we discuss enforcement, we are talking about the procedures of the Human Rights Commission(HRC). The Human Rights Commission has been in existence for 50 years in the City of South Bend, and in fact, was formed BEFORE federal regulations required South Bend to do so. South Bend has a long tradition of working toward equitable treatment of all individuals. The HRC approaches complaints with respect for all parties involved, and their investigations are designed to look at both sides of the issue. They investigate and mediate based on their years of experience and knowledge of the principles of justice and equality. We rely upon them to enforce this ordinance,and we thank them for their service to the community. In the following explanation,we will discuss the points of law pertinent to the City of South Bend's authority to enact this amendment, as well as the relevant precedents that show the amendment will withstand legal challenges, should any arise. Many attorneys believe that not only does South Bend have the authority to prohibit discrimination based upon sexual orientation and gender identity,but also that because of that authority, the courts would find in favor of a municipality's power to protect its GLBT residents from discrimination within its borders. Question: Can the City of South Bend enact and enforce an ordinance prohibiting discrimination on the basis of sexual orientation and gender identity when the State's Civil Rights statute does not include sexual orientation or gender identity as protected classes? Answer: Yes. Based upon the Home Rule statute,the Civil Rights statute, the City's police powers and case law, the City of South Bend can enact an ordinance prohibiting discrimination based upon sexual orientation and gender identity. Since Indiana law specifically authorizes cities to adopt ordinances to effectuate the state's civil rights public policy, there is no conflict with existing state law. The enforcement mechanism for this ordinance is the City's Human Rights Commission. Indiana municipalities have the authority to create and amend their civil rights ordinances pursuant to their police powers, the Indiana Constitution and the Indiana Code, specifically the Home Rule Statute(IC 36-1-3) and the Indiana Civil Rights Statute (IC 22-9-1). The addition of protection based upon sexual orientation and gender identity does not conflict with the state's civil rights statute; rather, it supplements it. Indiana law specifically authorizes cities to adopt ordinances to effectuate the state's civil rights public policy. The courts have ruled that conflict exists only where an ordinance forbids that which a statue permits,NOT where an ordinance merely supplements the burdens already proposed by the statute. Those burdens must be logically consistent with the statutory purpose. The purpose of the Civil Rights statute is to end discrimination and provide equal opportunity in employment and housing for all of the state's citizens. 2 H. Discussion On March 11, 2005, in response to a letter from Council Member Roland Kelly, former Chairperson of the Personnel and Finance Committee,the Office of the City Clerk received a letter from Aladean DeRose, Chief Assistant Attorney and legal counsel to the South Bend Human Rights Commission. Attached to that letter was a document entitled "Gays, Lesbians,Bi-sexuals, and Transgendered Persons: Position Statement of the South Bend Human Rights Commission"which read in its entirety as follows: "The South Bend Human Rights Commission is an agency of the City of South Bend, Indiana, committed to fair and equal treatment of all human beings. It is the responsibility and duty of the Human Rights commission to make sure that no human being is mistreated based on status, without making value or moral judgments. Gays, lesbians, bisexuals and transgendered(G, L, B&T)persons have experienced mistreatment based on their G, L, B &T status. The South Bend Human Rights Commission supports and encourages the South Bend Common Council to hear from the general public, to explore, investigate and determine the degree to which G, L,B &T persons have been treated adversely within the City of South Bend due to their G, L, B & T status. The South Bend Human Rights Commission further encourages the South Bend Common Council, working cooperatively with the South Bend Human Rights Commission, to create an appropriate remedy." Council Members Charlotte Pfeiffer and Roland Kelly co-sponsored Bill 29-06 to amend the Human Rights Ordinance to include gender identity and sexual orientation in employment, housing, education, and public accommodations. Oliver Davis is sponsoring 1 1 3 30-10 to amend the Human Rights Ordinance to include gender identity and sexual orientation in employment. Initially, there was some disagreement as to whether enabling legislation exists at the state level to authorize amending the South Bend Municipal Code to specifically address discrimination against GLBT persons, as well as whether the proposed legislation was in conflict with state statute. Our position has not changed. These concerns are inconsistent and in opposition with one another, for if there were no enabling legislation, how could there be a conflict? The enabling state legislation is the Indiana Code, specifically IC 36- 1-3 and IC 22-9-1, and the city's police powers. What are the legal thresholds that the proposed legislation must meet? 1. Is authority given to the City of South Bend to remedy discrimination by amending the Human Rights Ordinance? 2. What is the standard of review for the proposed legislation? Is there compelling government interest to amending the Ordinance? 3. Is there a factual basis of discrimination occurring in the City of South Bend showing the need to address such discrimination in order to prove that the amendment would 3 remedy identified discrimination? 1. Authori : Is authority given to the South Bend Common.Council to remedy discrimination by amending the Human Rights Ordinance? Yes,pursuant to Indiana Code 36-1-3, .Indiana Code 22-9-11 the City's police powers, and Indiana case law. A. Indiana Code 36-1-3 (Home Rule) states: IC 36-1-3-2 Policy Sec. 2. The policy of the state is to grant units all the powers that they need for the effective operation of government as to local affairs. As added by Acts 1980, P.L.211, SEC.1. IC 36-1-3-3 Rule of law; resolution of doubt as to existence of power of a unit Sec. 3. (a) The rule of law that any doubt as to the existence of a power of a unit shall be resolved against its existence is abrogated. (b)Any doubt as to the existence of a power of a unit shall be resolved in favor of its existence. This rule applies even though a statute granting the power has been repealed. As added by Acts 1980, P.L.211, SEC.1. IC 36-1-34 Rule of law; powers of unit Sec. 4. (a) The rule of law that a unit has only: (1)powers expressly granted by statute; (2)powers necessarily or fairly implied in or incident to powers expressly granted; and (3)powers indispensable to the declared purposes of the unit; is abrogated. (b)A unit has: (1) all powers granted it by statute; and (2) all other powers necessary or desirable in the conduct of its affairs, even though not granted by statute. (c) The powers that units have under subsection (b)(1) are listed in various statutes. However, these statutes do not list the powers that units have under subsection(b)(2); therefore, the omission of a power from such a list does not imply that units lack that power. As added by Acts 1980, P.L.211, SEC.1. (emphasis added) Note the emphasis to Sections 36-1-3-2, 36-1-3-3 (a) and(b), and 36-1-3-4(b) above: the Indiana Code gives South Bend all the powers needed to effectively govern as to its own local affairs. These powers include establishing and amending a Human Rights 4 Ordinance. If there is any doubt as to whether the City has the authority to create or amend an ordinance,the doubt is to be resolved in favor of the City having that authority. And even though a power is not expressly included in the statute does not mean that the City lacks that power. In sum, it is misleading to state that there is no federal or state law enabling the City to create and amend its Human Rights Ordinance. Indiana Code 36-1-3 is the enabling state law. The Indiana Code Horne Rule provision allows for the City to govern its own territory as it sees fit,with exceptions clearly stated. B. Indiana Code 22-9-1 (Civil_Rights Enforcement) states: IC 22-9-1-2 Public policy; construction of chapter Sec. 2. (a) It is the public policy of the state to provide all of its citizens equal opportunity for education, employment, access to public conveniences and accommodations, and acquisition through purchase or rental of real property, including but not limited to housing, and to eliminate segregation or separation based solely on race, religion,color, sex, disability, national origin or ancestry, since such segregation is an impediment to equal opportunity. Equal education and employment opportunities and equal access to and use of public accommodations and equal opportunity for acquisition of real property are hereby declared to be civil rights. Et sec. (b) The practice of denying these rights to properly qualified persons by reason of the race, religion, color, sex, disability,national origin, or ancestry of such person is contrary to the principles of freedom and equality of opportunity and is a burden to the objectives of the public policy of this state and shall be considered as discriminatory practices. The promotion of equal opportunity without regard to race, religion, color, sex, disability,national origin, or ancestry through reasonable methods is the purpose of this chapter. (c) It is also the public policy of this state to protect employers, labor organizations, employment agencies,property owners, real estate brokers, builders, and lending institutions from unfounded charges of discrimination. (d)It is hereby declared to be contrary to the public policy of the state and an unlawful practice for any person, for profit, to induce or attempt to induce any person to sell or rent any dwelling by representations regarding the entry or prospective entry into the neighborhood of a person or persons of a particular race, religion, color, sex, disability, national origin, or ancestry. (e)The general assembly recognizes that on February 16, 1972, there are institutions of learning in Indiana presently and traditionally following the practice of limiting admission of students to males or to females. It is further recognized that it would be unreasonable to impose upon these 5 institutions the expense of remodeling facilities to accommodate students of both sexes, and that educational facilities of similar quality and type are available in coeducational institutions for those students desiring such facilities. It is further recognized that this chapter is susceptible of interpretation to prevent these institutions from continuing their traditional policies, a result not intended by the general assembly. Therefore, the amendment effected by Acts 1972, P.L.176, is desirable to permit the continuation of the policies described. (f) This chapter shall be construed broadly to effectuate its purpose. (Formerly: Acts 1961, c.208, s.2;Acts 1963, c.173, s.2; Acts 1965, c.214, s.1; Acts 1967, c.276, s.1; Acts 1969,c.298, s.1; Acts 1971, P.L.357, SEC.2; Acts 1975, P.L.256, SEC.1.)As amended by P.L.5-1988, S EC.116; P.L.23-1993, SEC.130. et seq. (emphasis added) IC 22-9-1-12.1 "State agency" defined; local government; ordinances; exclusive jurisdiction; transfer of complaints; appeals Sec. 12.1.(a)As used in this section,the term "state agency" means every office,officer,board, commission, department, division, bureau, committee, fund, agency, and without limitation by reason of any enumeration in this section, every other instrumentality of the state, every hospital, every penal institution, and every other institutional enterprise and activity of the state, wherever located; the universities supported in whole or in part by state funds; and the judicial department of the state. "State agency" does not mean counties, county offices of family and children, cities, towns, townships, school corporations (as defined in IC 20-18-2-16), or other municipal corporations, political subdivisions, or units of local government. (b)Any city, town, or county is hereby authorized to adopt an ordinance or ordinances, which may include establishment or designation of an appropriate local commission, office, or agency to effectuate within its territorial jurisdiction the public policy of the state as declared in section 2 of this chapter without conflict with any of the provisions of this chapter. Any city or town may adopt such an ordinance or ordinances jointly with any other city or town located in the same county or jointly with that county. A city ordinance that establishes a local commission may provide that the members of the commission are to be appointed solely by the city executive or solely by the city legislative body or may provide for a combination of appointments by the city executive and the city legislative body. The board of commissioners of each county is also authorized to adopt ordinances in accordance with this section. An agency established or designated under this section has no jurisdiction over the state or any of its agencies. et seq. (emphasis added) Note the emphasis added to Section 22-9-1-2(f) above: the chapter"shall be construed broadly to effectuate its purpose"Id. This means that the public policy of the state to 6 provide equal opportunity for all of its citizens and the meaning of Chapter 22 is to be interpreted generally,not restrictively. Note the emphasis added to Section 22-9-1-12.1(b.)above: the City is authorized to establish a local commission to carry out the public policy of Indiana stated in section 2 "without conflict with any of the provisions of this chapter."Id Amending the Human Rights Ordinance to include sexual orientation and gender identity is not in conflict with state statute. Expanding civil rights in no way contradicts or is incompatible with what the statue provides. If anything, the amendment goes beyond the statute, rather than challenging the statute. Nothing in IC 22-9-1 et seq, prohibits the City from giving broader protections through its local Human Rights Ordinances than those specifically included in this section. Broader protections would coexist with the statute, not contradict or subvert it. The amendment would not be deemed inconsistent because of mere lack of uniformity in detail. The State of Indiana has clearly NOT chosen to preempt the area of civil rights law. Simply because the state enacts legislation in an area of the law, does not mean that a local governmental unit is automatically precluded from enacting similar, albeit not identical, legislation in that same area. Indiana Code 22-9-1-12.1 is the state law that enables the City to establish a Human Rights Commission and adopt ordinances to ensure human rights protections. This statute's express pumose is to effectuate the public policy of the State of Indiana to provide equal opportunity to all of its citizens. And in fact, the powers granted by IC 22-9-1-12.1 are quite broad, including the power to issue subpoenas. C. South Bend's police powers arise out of common law. "Police power"is the inherent power of the government(federal, state, local)to impose upon private rights those restrictions that are reasonably related to the promotion and maintenance of the health, safety, and general welfare of the public. [However] local governments may `impose additional, reasonable regulations...and supplement burdens imposed,by non-penal state law, provided the additional burdens are logically consistent with the statutory purpose.'IDNR v Newton County, 802 N.E.2d 430 (Ind. 2004); see also,Kentuckians Medical Center, LLC v Clark County, 2006 U.S. Dis. LEXIS 3298 (S.D. Ind. 2006)(emphasis added) It is reasonable for the city to rely upon its police powers to justify enforcing an amended Human Rights Ordinance to prohibit discrimination based upon sexual orientation and gender identity in keeping with its duty to protect the physical and mental health and well-being of all of its residents. 7 D. Case law su orts Home Rule so long as there is no conflict. The Home Rule Act is very broad, with few powers expressly withheld. The Indiana Courts have been consistent in its interpretation of Home Rule, as seen in their language. For example: See 4:05-CV-0086 SEB-WGH 2006 Kentuckiana Medical Center v. Clark Coun : Enacted in 1980,the Indiana Home Rule Act abrogated the traditional rule that local government powers were limited only those expressly granted by state statute. City of Gary v. Indiana Bell Telephone, 732 N.E.2d 149, 153 (Ind. 2000); Ind.Code 36-1-3-4(a). The Home Rule Act grants county governments "all powers granted it by statute"and"all other powers necessary or desirable in the conduct of its affairs, even though not granted by statute." Ind. Code 36-3-1- 4(b)(1) and(2). The Home Rule Act further directs that: "Any doubt as to the existence of a power of a [county] shall be resolved in favor of its existence."Ind. Code_36-1-3-3(b). These broad grants of power to local governments were intended to further the state's policy of"grant[ing] [counties] all the powers that they need for the effective operation of government as to local affairs." Ind. Code 36-1-3-2. Despite this broad grant of authority,the Home Rule Act nonetheless imposes two limits important to a resolution of this case. First, the Home Rule Act mandates: "if there is a constitutional or statutory provision requiring a specific manner for exercising a power, a [county] wanting to exercise the power must do so in that manner." Ind. Code 36-1-3-6(a). Second, the Home Rule Act specifically withholds from local governments "(t)he power to regulate the conduct that is regulated by a state agency, except as expressly granted by statute."Ind. Code 36- 1-3-8(a)(7). The Home Rule Act defines the term"regulate"to include licensing, inspecting, or prohibiting. Ind. Code 36-1-2-15. However, even in the categories regulated by state agencies, a local government still may"impose additional, reasonable regulation, and...supplement burdens imposed by non-penal state law provided the additional burdens are logically consistent with the statutory purpose;: Indiana Dept. of Natural Resources v. Newton County, 802 N.E.430, 433 (Ind. 2004) [hereinafter"DNR"] (quoting Hobble ex rel Hobble v. Basham 575 N.E.2d 693, 697(Ind. App. 1991)). "An impermissible conflict with state law will be found if the Ordinance seeks to prohibit that which a statute expressly permits."DNR 802 N.E.2d at 433 (internal quotation omitted). See 801 N.E.2d 1222• Ci of Gaa v. Smith & Wesson Cor : The trial court found Indiana Code sections 36-1-3-1 through 9, commonly referred to as the Home Rule Act, to deny the City the authority to sue. The Home Rule Act grants local governing bodies "all the powers that they need for the effective operation of government as to local affairs." I.C. 36-1-3-2. The Act 8 explicitly declares that "[a]ny doubt as to the existence of a power of a unit shall be resolved in favor of its existence." T.C. 36-1-3-3(b). In view of this provision, the public nuisance statute,which expressly authorizes the City to bring a claim, resolves any doubt. I.C. 32-30-6-7(b)(2). See 796 N.E.2d 236,Dvorak.v. GV o Bloomi ton: With the adoption of the Indiana Home Rule Act, the legislature "abrogated the traditional rule that local governments possessed only those powers expressly authorized by statute." City of Gary v Indiana Bell Tel, Co., Inc., 732 N.E.2d 149, I53 (Ind. 2000). The Home Rule Act expressly broadens a governmental unit's authority to include not only"[a]ll powers granted it by statute,"but also "[a]ll other powers necessary or desirable in the conduct of its.affairs even though not granted by statute." I.C. 36-1-3-4(b). The Act explicitly declares that "[a]ny doubt as to the existence of a power of a unit shall be resolved in favor its existence." I.C. 36-1-3-3(b). We have applied the Home Rule Act in construing the zoning authority of governmental units. City of Crown Point v. Lake County, 510 N.E.2d 684, 685-86 (Ind. 1987). Considering the enabling legislation and Home Rule Act,we reject Dvorak's claim that the enabling legislation does not expressly authorize cities to make zoning distinctions between different kinds of single housekeeping units based on familial status, or to regulate the users of real estate rather than uses of real estate, and thus the Bloomington ordinance is ultra vires. The legislature specifically authorized governmental units to use zoning so that "residential areas provide healthful surroundings for family life," 1. C. 36-7-4-201(b)(4) (emphasis added), and in order "to promote the public health, safety, comfort, morals, convenience and general welfare," I.C. § 36-7-4-601(c)(3). The enactment of zoning ordinances that make distinctions based on familial relations of the users of residential real estate is an integral component of implementing these legislative objectives.[2] Our conclusion is further reinforced by the Home Rule Act which extends to each governmental unit "all other powers necessary or desirable in the conduct of its affairs." I.C. 36-1-3-4(b), Ind. Code 22-9-1 (b) allows a city, town or county to"adopt an ordinance or ordinances, which may include establishment or designation of an appropriate local commission, office, or agency to effectuate within its territorial jurisdiction the public policy of the state as declared in section 2 of this chapter without conflict with any of the provisions of this chapter." It seems clear that South Bend has the authority to pass and enforce an ordinance against discrimination in employment and housing under the express grant power in Ind. Code 22-9-1-12.1 (b). See Yellow Cab v. Williams, 583 N.E.2d 774(Ind. Ct. App. 1991). There is nothing suggesting that such an ordinance cannot be amended once it is enacted. 9 See Yellow Cab y. Williams, 583 N.E.2d 774(lad. Ct. App. 1991) In this case,the legislature has granted local governments the authority to create local human rights commissions. IC 22-9-1-12.1(b). The City of Bloomington has an ordinance designating the Commission authority to award compensatory damage s to victims of unlawful discrimination in public accommodations. The enabling statute grants local commissions authority to investigate civil rights complaints,appoint hearing examiners,make findings and recommendations, issue orders requiring remedial action, and "[o]rder payment of actual damages, except that damages to be paid as a result of discriminatory practices relating to employment shall be limited to lost wages, salaries, commissions, or fringe benefits."IC 22-9-1-12.1(c)(8), (emphasis added). Yellow Cab v. Williams, 583 N.E.2d 774(Ind. Ct. App. 199 1) The real question is how broad may that ordinance be? Indiana University v. Hartwell, 367 N.E.2d 1090 (Indiana Court of Appeals 1977)is a case regarding a civil rights statute that has since been repealed. Hartwell said that the old statute was unconstitutional because it gave broad and standardless discretion to cities to create ordinances granting local commissions literally limitless powerless to enforce civil rights laws. The Hartwell court did not have a problem with the legislature telling cities they could crate ordinances and commissions to enforce the civil rights laws; rather, the problem was that the legislature had failed to provide any standards regarding creation of the ordinances or any limits on local commissions' powers. The problems raised in Hartwell have since been addressed in the Indiana civil rights statutes. IC 22-9-1-12.1, which authorizes cities to enforce the civil rights laws, lists the specific powers the city can grant to a commission. It also specifically states that local commissions have no control over the state or its agencies. Indiana case law is clear that a municipality can impose additional regulations if: the state has not chosen to retain exclusive control of that area of the law; the additional regulations are within the cities' legislative authority; and,the additional regulations do not conflict with the state regulations: See Yater v Hancock Co. Planninz 614 N.E.2d 568 Undiana Court of AnDeals. 1993): A conflict will be found where an ordinance seeks to prohibit that which a statute expressly permits, but no conflict will be found where an ordinance seeks to supplement the burdens imposed by the statute, provided the additional burdens are logically consistent with the statutory purpose. City oflndianapolis v. Sablica (1976), 264 Ind. 271, 342 N.E.2d 853, 855. 10 See IDNR v. Newton Coun(y. 802 NE.2d 430(Ind. 2004) An impermissible conflict with.state law will be found if the Ordinance seeks to prohibit that which a statute expressly permits. The Home Rule Act explicitly denies this power to a county. [However] local governments may `impose additional, reasonable regulations...and supplement burdens imposed by non-penal state law, provided the additional burdens are logically consistent with the statutory purpose.' (emphasis added) See also. Rentuckiana Medical Center. LLC v. Clark County, 2006 U.S. Dis. LEXIS 3298 (S.D. .Ind. 2006)supra. T See also,Fort Wayne Metropolitan Human Relations Commission v. Marathon Gas Station 2010 Cause No. 02DO1-0812-CT-500 So what is the statutory purpose of the Indiana Civil Rights Act? Ind. Cod 22-9-1-2 states, "It is the public policy of the state to provide all of its citizens equal opportunity for education, employment, access to public conveniences and accommodations, and acquisition through purchase or rental of real property, including but not limited to housing, and to eliminate segregation or separation based solely on race, religion, color, sex, disability, national origin or ancestry, since such segregation is an impediment to equal opportunity."(emphasis added) While the statute lists specific categories of persons for whom the state wishes to eliminate segregation and denial of these rights, the final subsection of this statue states; "[t]this chapter shall be construed broadly to effectuate its purpose." Nowhere does the statute state that civil rights are limited to particular categories of persons. The Indiana Civil Rights Act does not include sexual orientation and gender identity as protected characteristics, but it also does not state that it is acceptable to discriminate because of these factors. Nor can it be said that the Indiana Civil Rights Act "expressly permits"discrimination on the basis of sexual orientation or gender identity. The courts have stated repeatedly that"an impermissible conflict with state law will be found if the Ordinance seeks to prohibit that which a statute expressly permits." There is no such conflict here. The "public policy statement"in IC 22-9-1-2 speaks of all citizens—not only those in the specifically enumerated protected classes. In broadest terms, the core statutory purpose is to end discrimination and provide equal opportunity in employment and housing for all of the State's citizens. 11 It follows then that adding sexual orientation and gender identity is doing nothing more than imposing an additional burden on landlords and employers that is "logically consistent with the statutory purpose"of the Indiana Civil Rights Act. Summary South Bend has the authority to remedy discrimination by amending the Human Rights Ordinance to include sexual orientation'and gender identity,pursuant to Indiana Code 361-3,Indiana Code 22-9-1, the City's police powers, and supporting case law. 2. Standard of Review: What is the standard of review for the proposed legislation? Strict scrutiny. Does the proposed amendment stand up to strict scrutiny? Yes. Can the government show a compelling interest in sustaining the statute?Yes. In general,the constitutionality of a statute will be upheld if the law bears a reasonable relationship to the attainment of some legitimate governmental objective. That is the Rational Basis Test. If the statute involves the creation of a suspect classification such as race, religion, national origin, sexual orientation, or gender identity, however, then the law is subject to Strict Scrutiny, and may only be upheld if the government shows a compelling interest in sustaining the statute. The City can show not just one,but numerous compelling government interests for amending the Human Rights Ordinance to include sexual orientation and gender identity, including: It is in the government's interest to provide its residents the opportunity to earn a living, to live in the neighborhood of their choice, and to participate in the political process. Discrimination affects the ability of persons to engage in"an almost Iimitless number of transactions and endeavors that constitute ordinary civic life in a free society." Romer v. Evans, 517 U.S. 620, 631, 116 S. Ct. 1620, 1627, 134 L. Ed. 2d 855, 865 (1996). • For a city to adequately protect all of its citizens, it must combat hate violence by allowing victims to speak out and report discrimination and crime without fear of adverse employment or housing actions. - As a matter of public policy and of public safety, the city has an interest in both the physical and mental health and well-being of all of its residents. (Indiana Constitution, Section 1.) • City government should be responsive to current developments in the law and eliminate unintended inconsistencies therein. It should be consistent with and build upon Executive Orders of the State's governors (O'Bannon 2001, Kernan 2004, Daniels 2005). The citizens of South Bend support education and families. All children are valuable and worthy of protection in this city. "Teachers and students should promote tolerance 12 for the views of others, as well as for the rights of an individual to form and hold different opinions and beliefs. Each student has the right to an education." (South Bend Community School Corporation Policy #7370-1) • For any city serious about economic development,passing a Iaw ensuring basic rights for all citizens is a prerequisite to attracting the best and brightest,individuals and innovative companies needed to remain competitive. It is time our community and our economy stepped into the 21 st Century. This amendment is a positive step toward retaining and competing for the best workers and employers. Likewise, employees who feel protected are more productive. (Richard Florida, The Rise of the Creative Class, New York: Basic Books, 2002.) • Cities that do not protect LGBT people are experiencing significant"brain drain."In other words, large numbers (many of our best and brightest)will continue to flee South Bend until our city becomes more welcoming. Such brain drain has had a huge adverse impact on area businesses and the city's economic health in general. Civil rights legislation, or the lack of it, is often a factor determining where minorities, as well as Generations X and Y individuals choose to work or settle. • In order to respond with greater flexibility to new issues and changing community needs at all levels,the Human Rights Ordinance should be fair and responsive to the needs of all persons. • By taking a stand, the City of South Bend can set an example and increase residents' awareness of themselves as stakeholders in human rights. Other local jurisdictions that have enacted prohibitions against discrimination based on sexual orientation and gender identity report an actual reduction in discrimination, a greater feeling of safety among GLBT persons, and an enhanced image of the community policies as progressive. Most reported no negative effects (Kenneth Wald, James Button, and Barbara Rienzo,All politics is local: analyzing local gay rights legislation, Policy Institute of the National Gay and Lesbian Task Force (1997),p. f.) Summary: Because the City has a compelling interest in protecting the rights of individuals based on sexual orientation and gender identity, it can meet the standard of strict scrutiny required for the creation of a suspect classification. 3. Factual Basis of Discrimination Is there a factual basis of discrimination occurring in the City of South Bend showing the need to address such discrimination in order to prove that the amendment would remedy identified discrimination? Yes. The legislative record on this issue is full of examples of sexual orientation and gender identity discrimination in the City of South Bend. The sources of this evidence includes, but not limited to: 13 « community forums; ■ the interview-based survey of local GLBT individuals prepared by South Bend Equality(a study approved by the Institutional Review Board at Saint Mary's College, Notre Dame, IN,presented to the Personnel and Finance Committee in 2005); ■ national,regional and local studies; ■ news reports, ■ case law; ■ the Indiana Civil Rights Rate Crimes Reporting Network; ■ the"South Bend Equality Documentation in Support of Bill 29-46"(presented to the Personnel and Finance Committee in 2006); and, ■ public comments. Victims of such discrimination have nowhere to turn and no recourse under current law, as neither federal, state nor city law currently prohibits such discrimination. This amendment would give the South Bend Human Rights Commission the duty and opportunity to investigate alleged complaints objectively. Many Indiana jurisdictions do prohibit discrimination on the basis of sexual orientation and/or gender identity, including the cities of Indianapolis (2005), Lafayette (1993), West Lafayette(1993), Bloomington(1993, 2006), Fort Wayne(2001), Terre Haute, and Michigan City(2002), as well as Tippicanoe County and Marion County(2005). In addition, in 2001, Governor O'Bannon issued an Executive Order prohibiting discrimination on the basis of sexual orientation in state agencies. Governor Kernan extended that protection to transgender people in 2004. Governor Daniels' state employment policy likewise protects state employees from discrimination based on both sexual orientation and gender identity. In 2009, South Bend's Mayor Luecke issued an Executive Order prohibiting discrimination based on sexual orientation and gender identity in city employment. These leaders in these cities and in this State recognize that discrimination based upon sexual orientation and gender identity is a problem in Indiana and they have taken measures to correct it. The federal government recognizes that there is a problem with discrimination. In 1998 President William Jefferson Clinton enacted Executive Order 13087 to prohibit federal employment discrimination on the basis of sexual orientation. The U.S Senate Committee on Health, Education, Labor and Pensions filed a report in 2002 to accompany Senate Bill 1284 which stated: "The problem of sexual orientation discrimination in the workplace is wide-spread and well-documented." That same committee reported favorably on the Employment Non-Discrimination Act of 2001. In 2005, the U.S. House Committee on Government Reform stated"that Congressional intent as well as current policy and practice prohibit Federal employment discrimination on the basis of`sexual orientation"'. At the present time, the United States Congress is currently reviewing the controversial "Don't Ask, Don't Tell"military policy. 14 On July 31, 2005, the Executive Director of the Indiana Human Rights Commission, Gregory K. Scott, gave his views on gay rights to the South Bend Tribune: Q, Indiana law does not protect gays and lesbians from discrimination in employment, in housing,in education, in public accommodations. What's wrong with this picture? A. I think it's something that needs to be revisited. I think it is something that the legislature will have to address. And I think very much, in light of the governor's executive order regarding employment of individuals by the state, it seems to me that it is inappropriate to deny a person certain fundamental rights based on their sexual orientation. . In 1996 in Nabozny v. Podlesny(docket number 95-3634), the U.S. Court of Appeals for the 7th Circuit, which has jurisdiction over Indiana, stated that"There can be little doubt that homosexuals are an identifiable minority subjected to discrimination in our society." The 7`b Circuit Court contrasted its opinion with and opinion of the 6`s Circuit. The 7th Circuit Court stated: "To the extent that the 6t'Circuit's position conflicts with our prior holdings, we are bound by the precedent of this (the 7t') circuit...it does seem dubious to suggest that someone would choose to be homosexual, absent some genetic predisposition, given the considerable discrimination leveled against homosexuals." Finally, in a case involving civil rights protections for gays and lesbians,the United States Supreme Court concluded: These are protections taken for granted by most people either because they already have them or do not need them; these are protections against exclusion from an almost limitless number of transactions and endeavors that constitute ordinary civic life in a free society." Romer v. Evans, 517 US 620 (1996). Summary : Because it has been demonstrated that there is a factual basis of discrimination based upon sexual orientation and gender identity occurring in South Bend, the standard of `proving that regulations would remedy identified discrimination"has been met. M. Conclusion Based upon the Home Rule statute, the Civil Rights statute, the City's police powers and case law, the City of South Bend can enact and enforce an ordinance prohibiting discrimination based upon sexual orientation and gender identity. 15 1. "Compelling Governmental interest" Some claim that South Bend could not enforce a law prohibiting discrimination against the GLBT community unless the City can prove in court that it has a "compelling governmental interest" in such a law, which is the highest level of proof that can be required in such a case. But that claim is simply false. Rather, all that South Bend would have to prove if it were sued is that the City had a reason to believe that the GLBT community needed that protection(called a "rational basis"). Indeed, this is the lowest level of proof that can be required in such a case. And the evidence of significant discrimination against the GLBT community in employment and housing in South Bend far exceeds the evidence the City would need to satisfy that low level of proof and to enforce such a law. The Constitution gives local government bodies like the Common Council a great deal of latitude to make local laws as it sees fit. There are constitutional limits on what a local government can do. But the proposed amendments to the South Bend ordinance come nowhere near those limits. We will explain why this is so below, examining each possible constitutional challenge that could conceivably involve a"compelling governmental interest"—challenges based on the First Amendment right to Free Exercise of Religion, the First Amendment right to Freedom of Association, and the Fourteenth Amendment right to equal protection of the laws. A. First Amendment Free Exercise of Religion The First Amendment protects the free exercise of religion. So if the Council passed this ordinance for the purpose of advancing a religious belief, then the Council would have to show that it had a "compelling governmental interest"for doing so. But the purpose of this ordinance is not to advance religion but to prevent discrimination in housing and employment. Accordingly, the First Amendment's Free Exercise of Religion Clause and its compelling governmental interest test have nothing to do with this ordinance. Instead, the Supreme Court has ruled that prohibiting discrimination against homosexuals is "well within"the power of local government when local government has a reason to believe they are the targets of discrimination. We'll explain this point in detail. The First Amendment to the United States Constitution states in pertinent part, "Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof..." The Fourteenth Amendment makes the clause applicable to states and municipalities. Any court faced with a free exercise challenge to a statute or ordinance must determine, as a threshold matter, if the challenged legislation is "a valid and neutral law of general applicability." Employment Div. Dept. of Human Resources of Oregon v Smith, 494 U.S. 872 (1990). If the ordinance is religion-neutral, generally applicable, and rationally related to some legitimate government interest, then the free exercise clause is not violated even if enforcement of the ordinance would result in an incidental burden on a particular religious practice.Id. at 884- 85, 886 n.3. U.and only if, the regulation is found to be not religion-neutral or not generally applicable will courts scrutinize it further. Only legislation that receives this additional scrutiny "must be justified by a compelling governmental interest and must be narrowly tailored to advance that interest." Church of the Lukumi Babalu Aye, Inc., 508 U.S. 520 (1993). To bring a free exercise.challenge against the ordinance after amendment, an individual would first have to argue that the ordinance is not religion-neutral and generally applicable. According to the Supreme Court, a law is not religion-neutral if its p=os e is to"infringe upon or restrict practices because of their religious motivation." Lukumi, 508 U.S. at 533 (emphasis added). Absolutely nothing about the ordinance, as amended, would be designed to infringe upon or restrict anyone's religious practices. The ordinance is about preventing discrimination in housing and employment. It says nothing about religious practices. Adding gender identity and sexual orientation would not change that fact. While there may be a landlord or employer in South Bend who is willing to say that he or she discriminates against GLBT people in employment or housing as a religious practice, the ordinance itself, as amended to included sexual orientation and gender identity,would say nothing about preventing GLBT discrimination because the discrimination itself is a religious practice. The ordinance is, and would remain, religion-neutral. It is, therefore, highly improbable that a court faced with a free exercise challenge to the amended ordinance would ever come close to seeping evidence of compelling governmental interest for the amendment. To the contrary, all the court would have to do, after determining that the ordinance is religion-neutral and generally applicable, would be to determine whether it is reasonably related to a legitimate government interest. There is no basis for arguing that preventing sexual orientation and gender identity are not legitimate governmental interests. See, e.g., Hurley v. Irish American Gay, Lesbian and Bisexual Group of Boston, 515 U.S. 557 (1995) (finding that laws which prohibit discrimination on the basis of sexual orientation in the provision of public accommodations are"well within the State's usual power to enact when a legislature has reason to believe that a given group is the target of discrimination......") B. First Amendment Freedom of Association The First Amendment also protects the "freedom of association"of persons to engage in activities the First,Amendment protects, like marriage and political speech. So if the Council were to tell a citizen who he could marry(called an "intimate association") or require him to admit someone into his political party with whom he did not agree(called an"expressive association'), then the Council would be required to show it was advancing a"compelling governmental interest" by doing so. But this ordinance does no such thing. It does not deal with associations organized for the purpose of advancing activities the First Amendment protects. Instead it deals with associations organized for the purpose of making money—landlords and employers. Therefore the First Amendment would not apply. 1. Intimate associations are not implicated. The First Amendment protects two types of"freedom of association rights." Roberts u United States Jaycees, 468 U.S. 609, 617(1984). The first type is the right to"intimate 2 association,"which protects "choices to enter into and maintain certain intimate human relationships [without]undue intrusion by the State because of the role of such relationships in safeguarding the individual freedom that is central to our constitutional scheme." Id. at 617. The types of relationships protected are those akin to;marriage and family relationships. See, e.g., City of Dallas v. Stanglin, 490 U.S. 19 (1989) (dance hall patrons not engaged in the sort of intimate human relationships contemplated by Roberts;no constitutionally protected right to "social association"of this sort),Klupt v. City of Chicago,No. 88 C 7528, 1989 U.S. Dist. LEXIS 3631 (N.D. Ill. April 3, 1989) (relationships with co-workers not the type of protected intimate human relationships considered in Roberts). A If the relationships among dance hall patrons and among co-workers are not protected "intimate associations,"there can be no question that the relationships between private employers and their employees and private landlords and their tenants also fall outside the protected category of"intimate associations." See also, Roberts, 468 U.S. at 620 ("[t]he Constitution undoubtedly imposes constraints on the State's power to control the selection of one's spouse that would not apply to regulations affecting the choice of one's fellow employees.');Hyman v. City of Louisville, 131 F. Supp.2d 528, 543 (W.D. KY 2001),set aside on other grounds, 53 Fed. Appx. 740 (6th Cir. 2002) (relationship between an employer and employees not an intimate association deserving constitutional protection). 2. Landlords and employers cannot demonstrate that their businesses are expressive association. The second type of"freedom of association right"is the"right to associate for the purpose of engaging in those activities protected by the First Amendment—speech, assembly, petition for the redress of grievances, and the exercise of religion." Roberts, 468 U.S. at 618. This is otherwise known as "expressive association." See Boy Scouts ofAmerica v. Dale, 530 U.S. 640, 648 (2000) (Boy Scouts of America is an "expressive association"one purpose of which is to inculcate youth with values of being"morally straight"and"clean.") "The First Amendment's protection of expressive association is not reserved for advocacy groups. But to come within its ambit, a group must engage in some form of expression,whether it be public or private."Id. Private employers and landlords cannot demonstrate that their they are in the business of "engagfing] in expression"that would be suppressed or otherwise negatively impacted if they were prevented from discriminating against GLBT persons. Simply put,unlike the Boy Scouts in Dale, it is not a principal mission of private employers and landlords to profess and inculcate specific values in their employees or tenants—or to convey any other particular social, moral, religious, or political message. To the contrary, private employers and landlords are in the business of making money—not the business of making moral, social,political, or religious statements about GLBT persons or anyone else. See New York State Club Association v City of New York, 487 U.S. 1 (1988) (most private clubs with over 400 members were not created for, and do not regularly engage in, expressive activities deserving constitutional protection). Moreover, even if"invidious private discrimination may be characterized as a form of exercising freedom of association protected by the First Amendment, . . . it has never been accorded affirmative constitutional protections." Hishon v King&Spaulding, 467 U.S. 69, 78 (1984). 3 When a landlord or employer making a freedom of association challenge fails to demonstrate that his business is an expressive association,then a court will have no need.to scrutinize the situation further. There would be no First Amendment violation. The idea of "compelling governmental interest"would:never be raised. C. Equal protection The Equal Protection Clause of the Constitution forbids discrimination. Therefore, if the Council were to pass a law that discriminates against people based upon the color of their skin or their ethnic origin, it would have to show that it had a"compelling governmental interest"for doing so. But this ordinance does no such thing. In fact, it does just the opposite: it outlaws discrimination. If challenged, the City would only have to show that it wanted to stop discrimination against those who work or rent property in South Bend. It is unclear what the basis for an equal protection challenge would be or who would bring such a challenge. In other words it is not apparent that any identifiable group of employees or tenants would be harmed if discrimination a ainst GLBT persons were prohibited. Contrary to the assertions of opponents of the amendment, the amendment does not grant"special rights" or privileges to GLBT persons. That argument gets it backwards. The amendment removes special disabilities by preventing discrimination, thereby leveling the playing field in employment and housing. Accordingly, an equal protection challenge—let alone an equal protection challenge that would require proof of a compelling governmental interest—could not succeed. According to the United States Supreme Court: The Equal Protection Clause of the Fourteenth Amendment commands that no State shall "deny to any person within its jurisdiction the equal protection of the laws,"which is essentially a direction that all persons similarly situated should be treated alike. Section 5 of the Amendment empowers Congress to enforce this mandate, but absent controlling congressional direction, the courts have themselves devised standards for determining the validity of state legislation or other official action that is challenged as denying equal protection. The general rule is that le i_slation is presumed to be valid and will be sustained if the classification drawn by the statue is rationally related to a legitimate state interest. When social or economic legislation is at issue, the Equal Protection Clause allows the States wide latitude, and the Constitution presumes that even improvident decisions will eventually be rectified by the democratic processes. The general rule gives way, however, when a statute classifies by race, alienage, or national origin. These factors are so seldom relevant to the achievement of any legitimate state interest that the laws grounded in such considerations are deemed to reflect prejudice and antipathy --a 4 view that those in the burdened class are not as worthy or deserving as others. For these reasons and because such discrimination is unlikely to be soon rectified by legislative means, these laws are subjected to strict scrutiny and will be sustained only if they are suitably tailored to serve a compelling state interest. Similar oversight by the courts is due when state laws irnning,.e on personal rights protected by the Constitution. Legislative classifications based on gender also call for a heightened standard of review. That factor generally provides no sensible ground for differential treatment . . .. A gender classification falls unless it is substantially related to a sufficiently important governmental interest. Because illegitimacy is beyond the individual's control. . . . discriminations resting on that characteristic are also subject to somewhat heightened review. Those restrictions"will survive equal protection scrutiny to the extent they are substantially related to a legitimate state interest." We have declined, however, to extend heightened scrutiny review to differential treatment based on age . . . . . The lesson of Murgia [the age case] is that where individuals in the group affected by a law have distinguishing characteristics relevant to interest the State has the authority to implement, the courts have been very reluctant, as they should be in our federal system and with our respect for the separation of powers, to closely scrutinize legislative choices as to whether, how And to what extent those interests should be pursued. In such cases, the Equal Protection Clause requires only a rational means to serve a legitimate end. City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 440-441 (1985) (citations omitted) (emphasis added). Race, alienage, and national origin—the classifications to which the U.S. Supreme Court has afforded the benefit of"strict scrutiny"analysis—are commonly referred to as "suspect classes"in federal case law. See, e.g., Nabomy v. Podlesny, 92 F.3d 446,458 (7th Cir. 1996). Sex and illegitimacy—the classifications granted heightened or intermediate scrutiny analysis-- are commonly referred to in federal case law as "quasi-suspect"classes. Id. In order to challenge the proposed amendment on equal protection.grounds—and have a court apply a"strict scrutiny"test requiring a compelling governmental interest rather than a "rational relationship"test—it appears that GLBT rights opponents would have to assert that(1) some group of tenants or employees formed a suspect class, (2) GLBT persons are a suspect class, and the protections afforded by the amendment cause non-GLBT persons to suffer some sort of deprivation of equal protection because they are not GLBT, or(3)the ordinance as amended somehow burdens a fundamental personal right of non-GLBT tenants or employees 5 The following is a response from the city of South Bead's legal department to a memo sent by Kathy Cekanski-Farrand to members of the South Bend Common Council regarding substitute bill 30-I0. It was authored by Madean Depose, a city attorney who has represented the Human Rights Commission for 20 years. I believe that the substitute ordinance 30-10 is legally valid... More often than not, lawyers have respectfully differing views on the same subject matter. Only courts can resolve differences of legal opinion between lawyers, and different courts often view the same issue differently. The U.S. Supreme Court has the final word, not because it's better, but because it's last. Please note that the Employment Fairness ordinance involved minimal new drafting; it simply adds a few changes to the pre-existing South Bend Human Rights ordinance. That ordinance was adopted by the Common Council in 1973 and has served nearly 40 years without creating any unresolvable problems of interpretation. From time to time questions of interpretation arise, but the Commission draws on a substantial body of well developed federal law on the topic of discrimination to aid in its interpretations. The Seventh Circuit Federal Court of Appeals which governs Indiana decides 20-30 discrimination cases a year which guide the Commission as it handles its caseload. The Employment Fairness Ordinance (Substitute) makes only five changes to the 1973 ordinance: 1. It adds sexual orientation and gender identity as protected classes in "employment matters" only, as distinct from fair housing and public accommodation for which no protection is extended on the basis of sexual orientation and gender identity. 2. It defines the terms sexual orientation and gender identity. 3. It creates an exception for certain organizations and entities based on the Supreme Court case Boy Scouts of American and M,onmouth Council, et al v. Dale, (2-127.1(e)). 4. It clarifies that the ordinance is not intended to require benefit coverage for domestic partners of employees. (2-127.1(f)). 5. It provides remedies "to the extent consistent with state law." (2-128(i)(1)(B) Of all the above changes to 'South Bend's 1973 Human Rights ordinance, only above item #4 is totally new. gyprything Everything else was part of the 2006 version of the ordinance. The only other difference between the 2006 and 2010 ordinance is as noted in #1 above, protection on the basis of sexual orientation or gender identity is limited to "the matter of employment." Anything in Ordinance 30-10 that does not change the 1973 version of the ordinance means that the pre-existing language still applies including. 1. Inapplicability of the ordinance to an employer with fewer than six employees (Note — The Federal Civil Rights Act of 1964, 42 U.S.C. § 2000e' does not indicate whether "employers" means full or part time although it does indicate that. an employee must have worked at least 20 weeks of a calendar year (42 U.S.C. § 2000e-b); and 2. The apparent lack of a definition of "employment discrimination" within. the ordinance because the ordinance is patterned on the Federal Civil Rights Act of 1964, 42 U.S.C. § 2000e, which', too, does not contain a definition of employment'discrimination. Both' the Civil Rights Act of 1964 and the South Bend ordinance contain prohibitions against discrimination in employment. Like the EEOC, of which the South Bend Human Rights Commission is a locally designated agency, the.Haman Rights Commission relies on common law court interpretations to analyze what is or is not "employment discrimination" as that concept evolves. By the way, workplace harassment is a common law expansion of "employment discrimination." Matters of Concern in the Amended Language it appears there is no dispute about the newly added clarification language of 2-127.1(f) regarding non-application of employment benefits to domestic partners. Therefore,.only the definitions of sexual orientation and gender identity and the Boy Scouts case exception under 2- 127.1(e) could possibly be subject of any "vagueness" or similar concerns. I will respond to these separately: 1. Definition of "sexual orientation." As noted previously, the definition of "sexual orientation" contained in Ordinance 30-10 was part of South Bend's 2006 ordinance. It is not new in 2010. 1 have attached the "sexual orientation" definition contained within all Indiana communities adopting similar ordinances. South Bend's ordinance is identical to that of Indianapolis, and frankly, I think it's the best of all the definitions used throughout the state. We now have the benefit of many years of experience by other Indiana communities, none of which have indicated_ that their definition is a problem or that the definition has been challenged for vagueness. 2. Definition of "gender identity." Another attachment is enclosed indicating that "gender identity" is defined only in the ordinances of Indianapolis and Bloomington. Again South Bend's ordinance uses the Indianapolis definition verbatim. The Indianapolis/Marion County ordinance has not been challenged in any way since its adoption in 2006. The attachment hereto also includes definitions of "gender identity" used in local ordinances adopted in some other communities, i.e., San Francisco, California, Columbus, Ohio, Ann Arbor, Michigan, Madison, Wisconsin, and Lansing, Michigan. You will see that all are fairly similar. The Indianapolis/Marion County version which Bill 30-10 uses seems to encapsulate well the major components of "gender identity": (1) that it concerns an individual's actual .or perceived (2) self-identity, self-image, appearance, expression or behavior; (3) which may be different from the person's assigned sex at birth. The proposed federal legislation (Employment Non-Discrimination Act (ENDA) is not a certainty and is unlikely to be passed in an election year. It is also subject to modification before passage.' Therefore, consistency with a definition used by Indianapolis/Marion County for the past four years makes sense for South Bend. 3. Boy Scouts.case..exception. (2-127(e)) The case of Boy Scouts of America v. Dale, was decided by the U.S. Supreme'Court in 2000 and is authored by then Chief Justice Rehnquist (530 U.S. 640, 120 S.Ct. 2446, 147 L.Ed2d 554). It involved a challenge by the Boy Scouts of America to New Jersey's law prohibiting discrimination on the basis of sexual orientation in places of public accommodation. The Boy Scouts of America excluded members because of sexual orientation based on its mission,statement. Mr. Dale, the plaintiff and a gay man, sought but was refused a position as an assistant scout master. The court ruled 514 for the Boy Scouts, albeit with vigorous dissenting opinions. Justice Rehnquist first noted that a "public accommodation" is generally a place where the public is invited such as "taverns, restaurants, retail shops and public library." The court noted that an entity such as Boy Scouts of America is not a "place," and that when public accommodation laws are used to extend beyond a "place" to a group or organization, the First Amendment speech and association rights of the group or organization must be respected. The Boy- Scouts case applies to organizations or groups in the context of public accommodation. Technically, because the 2010 South Bend ordinance does not afford protection from discrimination in public accommodation, § 2-127.1(e) could be deleted entirely. This would certainly eliminate any vagueness challenge, and the other Indiana ordinances similar to Bill 30-10 do not contain this exception. However, this exception (§ 2-127.1(e)) was requested and drafted in 2006 by an attorney of the local Boy Scouts organization working with City Attorney Charles S. Leone. The Poy Scout case involves a quasi-employment relationship, i.e., Mr. Dale's participation as a voluntary assistant scout master, so there is some rational basis for inclusion of this exception in Bill 30-10 which is limited to protection from employment discrimination on the basis of sexual orientation or gender identity. I suspect that many Common Council constituents would prefer to retain the exception as is rather than delete it in the interest of avoiding challenges of interpretation or vagueness. The reference in § 2-127.1(e) to the Boy Scouts of America case means that the exception of 2- 127.1(e) should be interpreted in light of a narrow, limited, exclusion for religious societies, orders, associations or institutions whose mission, practice, or belief would be impaired by hiring a person who is gay, lesbian, bi-sexual or transgender. Most employers in South Bend would not fall within this exception. (Note: The University of Notre. Dame and Saint Mary's College internally prohibit harassment due to sexual orientation.) Other employers which might assert this exception, may have fewer than six employees. As a matter of state law, the Human Rights Commission. has no authority over state agencies anyway, so claims under Bill 30-10 against IUSB, Ivy Tech, Workforce Development, the license branches, etc., could not be brought to the South Bend Human Rights Commission. 4. Enforcement. The Employment Fairness ordinance (Bill 30-10) is enforceable "to the extent consistent with state law." (Section 2-131(i)(1)(B). The Commission would, therefore, investigate cases, make assessments of probable cause, and offer its conciliation services at no charge, (By the way, a great percentage of all Human Rights Commission probable cause cases are resolved in this manner.) The experience of Bloomington, Indiana (with a up rely voluntary ordinance), is that all probable cause claims since ordinance enactment in 1993 have been resolved satisfactorily through conciliation. Miscellaneous Matters in Kathv's Memo 1. Use of "Employment Fairness" in Bill Title but not within Ordinance. As mentioned previously, Bill 30-10 is simply an amendment to existing Article 9 of the South Bend Municipal Code known as the "Human Rights Ordinance." Inclusion of fairness in employment without regard to gender identity or sexual orientation is part of the broader category of"Human Rights." 2. Limitations. As previously noted, certain limitations to the Human Rights Commission's jurisdiction are mandated by state law and are included in the 1973 ordinance which are not repealed by Bill 30-10. The only other new limitation is the Boy Scout exception previously noted, and the clarification about employment benefits. 3. Definition of Employment_Discrimination. I have covered this previously. The 1973 ordinance did not define "employment discrimination" per se, consistent with the format of the Civil Rights Act of 1964. The Human Rights Commission applies the common law interpretation of employment discrimination as it has been doing in its work for nearly 40 years. 4. "In Employment" and "In the Matter of Employment" Distinguished. I explained this previously. The phrase "in the matter of employment" is used throughout the ordinance whenever needed to make clear that sexual orientation and gender identity are protected only "in the matter of employment" and not in the matters of housing or public accommodation. 5. Statement of Purpose and Intent. The statement of purpose and intent is used only to explain the Bill. It is not necessary to repeat language from this portion of the Bill in the Bill itself. 6. Definition of "Gender Identity". I covered this already. 7. Definition of "Sexual Orientation". I covered this already. 8. 3 Prong Standard. I believe Buddy Kirsits covered all of this quite well in his power point presentation, supplemented by Lonnie Douglas's statement about requests for assistance turned down by the Commission. 9. Human Rights Resolution. The Human Rights Resolution approving Bill 30-10 was properly passed in compliance with Open Door law requirements and is not subject to challenge on that basis after 30 days from passage. 10. Fundln_c . The Human Rights Commission is aware that its General Fund financing will be used for investigation of Bill 30-10 cases and Mr. Douglas indicated that existent funds should be adequate to cover these cases. 11. Protection Under Existing Law. It is true as Kathy Cekanski-Farrand notes that some discrimination against persons because of their sexual orientation or gender identity can be remedied under existing sexual discrimination law, but this is extremely limited. It applies only to discrimination when a person of the male or female sex who exhibits stereotypical behavior or characteristics of the opposite sex is persecuted in the workplace because of this. Most gay and lesbian persons would not qualify for this exception. C2nclusion ...The similar ordinances enacted throughout Indiana, and even in improbable locations such as Salt Lake City, Utah, Charleston, West Virginia, and Tucson, Arizona show that this protection is no longer novel or unusual. I believe that this, as well as a commitment to eliminating prejudice, is what led the South Bend Human Rights Commission to unanimously endorse the protections of Bill 30-10 by the eight members present and voting at their meeting on June 16, 2010. Po µRESOLUTION NO. A RESOLUTION OF THE COMMON COUNCIL OF THE CITY OF SOUTH BEND,INDIANA, APPROVING A PETITION OF THE AREA BOARD OF ZONING APPEALS FOR THE PROPERTY LOCATED AT 17917 SR 23, SOUTH BEND, INDIANA WHEREAS,Indiana Code Section 36-7-4-918.6, requires the Common Council to give notice pursuant to Indiana Code Section 5-14-1.5-5, of its intention to consider Petitions from the Board of Zoning Appeals for approval or disapproval; and WHEREAS,the Common Council must take action within sixty(60)days after the Board of Zoning Appeals makes its recommendation to the Council pursuant to I.C. 36- 7-4-918.6;and WHEREAS, the Common Council is required to make a determination in writing on such requests pursuant to Indiana Code Section 36-7-4-918.4, and WHEREAS,the Area Board of Zoning Appeals has made a recommendation,pursuant to applicable state law. NOW, THEREFORE, BE IT RESOLVED BY THE COMMON COUNCIL OF THE CITY OF SOUTH BEND,INDIANA as follows: SECTION I. The Common Council has provided notice of the hearing on the Petition from the Board of Zoning Appeals pursuant to Indiana Code Section 5-14-1.5-5, requesting that a Special Exception be granted for the property located at: 17917 S. R. 23, South Bend, Indiana 46635 in order to permit a Billiard Hall. SECTION II. Following a presentation by the Petitioner, and after proper public hearing, the Common Council hereby approves the petition of the Area Board of Zoning Appeals, a copy of which is on file in the Office of the City Clerk. SECTION III. The Common Council of the City of South Bend, Indiana,hereby finds that: 1. The proposed use will not be injurious to the public health, safety, comfort, community moral standards,convenience or general welfare; 2. The proposed use will not injure or adversely affect the use of the adjacent area or property values therein; 3. The proposed use will be consistent with the character of the district in which it is located and the land uses authorized therein; 4. The proposed use is compatible with the recommendations of the City of South Bend Comprehensive plan; all of which is requested by the South Bend Municipal Code § 21-09.03 (i). SECTION IV. Approval is subject to the Petitioner complying with the reasonable conditions established by the Area Board of Zoning Appeals which are on file in the office of the City Clerk. SECTION V. The Resolution shall be in full force and effect from and after its adoption by the Common Council. Member of the Common Council LD r 4 : i` r\tJL� .E HEFLER SMIT 50' R/W _ N 88'48'03"E _ ` z 5.4 ii. 65.1 c Q -- W 1 = p I a ± W 1 I I a I 3 1 N 0648'03"E iif 1 I I 2 i41 ui I \ I � i m I I.h El Hxi 4 \ ,EZ 1 1 I I k -NLF+ / / m � I � l f; I � a a � The proposed use will not injure or adversely affect the use of the adjacent area or property values therein; We also stand firm by the fact that our operation will not produce any hazardous or injurious outcome to the public health'or safety and ease of the community. We are intending to run this operation professionally and provide welcoming arms to all the residents and non-residents of the area to come in and unwind while enjoying some free spirited time, be it college students or simply people that want to change the from the chaotic bar scenes or coffee shops, we are going to be an alcohol free run operation, offering novelty and pleasurable experience for our clients respectfully within the boundaries and laws allowed by our local and federal government. ➢ The proposed use will be consistent with the character of the district in which it is located and the land uses authorized therein, and We stand firm by our motto in business is treat people and the area and its surrounding with the utmost respect, professionalism adhering to the all laws and recommendations given to us. We will also be all ears to any suggestion from our community leaders should any concerns arise prior to our opening to the facility. ➢ The proposed use is compatible with the recommendations of the City of South Bend Comprehensive Plane. Before we took over this place that has been shut down for quite some time, we thought it is an ideal business location that would add a value to our local businesses core due to its strategic location, our intent and belief is that operating a proposed business like ours will not affect any of the following: business tax property, morals, values, injury to others and public health scare. None of these will be remotely in the subject of our fear by simply running our operation if anything we believe our business and the outline and proof planes will reflect very positively on the area and bring in more local business liquidity as far as income and job opportunities Thank you, Sincerely avid Farhan 2 AREA BOARD OF ZONING APPEALS 125 S. Lafayette Blvd. Suite 100 South Bend, Indiana 46601 (574) 235-9554 Fnx: (574) 235-5541 January 5, 2012 The Honorable Common Council of the City of South Bend 4th Floor, County-City Building South Bend, Indiana 46641 RE: Petition for Special Exception for Alibaba Cafe LLC ABZA 114112 Dear Council Members: The above referenced petition of Alibaba Cafe LLC was legally advertised on December 23, 2011. The Area Board of Zoning Appeals gave it a public hearing on January 4, 2012, at which time the following action was taken: Upon a motion by Mr. Phipps, being seconded by Mr. Hawley and unanimously carried, the petition for Special Exception of Alibaba Cafe LLC to allow a billiard hall in a "LB" District,on property located at 17917 State Road 23, is sent to the South Bend Common Council with an Unfavorable Recommendation and subject to no alcohol if approved. The deliberations of the Area Board of Zoning Appeals and points considered in arriving at the above decision as shown in the Minutes of the Public Hearing, and will be forwarded to you at a later date, to be made part of this report. Sincerely, Charles C. Bulot, C.B.O. Building Commissioner CCB/cah ALIBABA CAFE€ LLC SPECIAL EXCEPTION PURSUANT 21-09.3(D) AREA BOARD OF ZONING APPEALS FINDINGS OF FACT I- THE PROPOSED USE WILL NOT BE INJURIOUS TO THE PUBLIC HEALTH, SAFETY, COMFORT, COMMUNITY MORAL STANDARDS,CONVENIENCE OR GENERAL WELFARE BECAUSE: Development and use as presented will not comply with all building, tire,safety,traffic, and parking regulations as to not being injurious to the public health, safety, morals,and general welfare of the community. 2. THE PROPOSED USE WILL NOT INJURE OR ADVERSELY AFFECT THE USE OF THE ADJACENT AREA OR PROPERTY VALUES THEREIN BECAUSE: The variance or use will not improve the appearance of the neighborhood and could devalue the surrounding properties. 3. THE PROPOSED USE WILL BE CONSISTENT WITH THE CHARACTER OF THE DISTRICT IN WHICH IT IS LOCATED AND THE LAND USES AUTHORIZED THEREIN BECAUSE: Conditions on this property just do not create a different situation for this property. 4. THE PROPOSED USE IS COMPATIBLE WITH THE RECOMMENDATIONS OF THE CITY OF SOUTH BEND COMTREHENSIYE PLAN BECAUSE: It is the feeling of the Board that the variance will not blend into the overall Comprehensive Plan and may be deviating from its intent. CONDITIONS OR REVISIONS: NO ALCOHOL OF APPROVED DECISION IT IS THEREFORE the decision of the Board that this request for Special Exception shall be passed onto the City of South Bend Common Council with an: UNFAVORABLE RECOMMENDAIrION ADOPTED this 4TH Day of JANUARY,20I2. YES NO Q MICHAEL URBANSKI Q RANDALL MATTHYS JACK YOUNG GERALD PHIPPS Q ROBERT HAWLEY JOE VELLEMAN D BRENDAN CRUMLISH RESOLUTION NO. A RESOLUTION OF THE COMMON COUNCIL OF THE CITY OF SOUTH BEND,INDIANA, APPROVING A PETITION OF THE AREA BOARD OF ZONING APPEALS FOR THE PROPERTY LOCATED AT 1434 GARLAND CIRCLE WHEREAS, Indiana Code Section 36-7-4-918.6, requires the Common Council to give notice pursuant to Indiana Code Section 5-14-1.5-5, of its intention to consider Petitions from the Board of Zoning Appeals for approval or disapproval; and WHEREAS,the Common Council must take action within sixty(60)days after the Board of Zoning Appeals makes its recommendation to the Council pursuant to I.C. 36- 7-4-918.6; and WHEREAS,the Common Council is required to make a determination in writing on such requests pursuant to Indiana Code Section 36-7-4-918.4, and WHEREAS,the Area Board of Zoning Appeals has made a recommendation,pursuant to applicable state law. NOW, THEREFORE,BE IT RESOLVED BY THE COMMON COUNCIL OF THE CITY OF SOUTH BEND,INDIANA as follows: SECTION I. The Common Council has provided notice of the hearing on the Petition from the Board of Zoning Appeals pursuant to Indiana Code Section 5-14-1.5-5, requesting that a Special Exception be granted for the property located at: 1434 Garland Circle in order to permit an Adults Foster Care/Assisted Living Home in a"SF-1" Single and Two Family District, and allowable use under Section 21-02.01 of the City of South Bend Zoning Ordinance. SECTION II. Following a presentation by the Petitioner, and after proper public hearing, the Common Council hereby approves the petition of the Area Board of Zoning Appeals, a copy of which is on file in the Office of the City Clerk. SECTION III. The Common Council of the City of South Bend, Indiana,hereby finds that: 1. The proposed use will not be injurious to the public health, safety, comfort, community moral standards,convenience or general welfare; 2. The proposed use will not injure or adversely affect the use of the adjacent area or property values therein; 3. The proposed use will be consistent with the character of the district in which it is located and the land uses authorized therein; 4. The proposed use is compatible with the recommendations of the City of South Bend Comprehensive plan; all of which is requested by the South Bend Municipal Code§21-09.03 (i). SECTION IV. Approval is subject to the Petitioner complying with the reasonable conditions established by the Area Board of Zoning Appeals which are on file in the office of the City Clerk. SECTION V. The Resolution shall be in full force and effect from and after its adoption by the Common Council. Member of the Common Council cM f."-R.1 o r y ,..lx rw. ^Fk IL X f PRESENTED NOT APPROVED AgOPTE < . f Board Of Zoning Appeals City Of South Send PETITION: Special Use Permit/Special Exception APPLICANT NAME: LaShon Gurrola ADDRESS: 1434 Garland Circle,South Bend, IN 46614 ADDRESS OF PROPERTY: 1434 Garland Circle,South Bend, IN 45614 PHONE:574-855-4914 PRESENT ZONING OF PROPERTY: "SFi"Single Family and Two Family District OWNER NAME: LaShon Gurrola ADDRESS: 1434 Garland Circle,South Bend,IN 46614 COUNSEL:N/A ADDRESS:N/A NATURE OF APPEAL: Special Exception request:Approval of a Special Exception as allowed under section 21-02.01 of the City of South Bend Zoning ordinance to allow for an assisted living home.This would allow the petitioner to have foster care family members,who are not related by blood or marriage, reside in the home along with her. Petitioner resides at the property and would be the primary caregiver to these members.The petitioner holds certification to foster, has had the property approved and inspected by State officials, and has taken all the required training. Part of this qualification included a background check.There isn't nor has there ever been a criminal history/background on the petitioner.This would be a one family unit which is consistent with the intended use of the property.There will be no hired staff at the home. During petitioner absence for work, school,or whatever may come up,another adult family member(related by blood or marriage) residing in the home, which has also met the State of Indiana's requirements to be a foster respite provider, will assume responsibility. Petitioner ask the Board Members to agree that approval of the request for Special Use Exception to allow for the aforementioned would not be injurious to the public health,safety,comfort, community moral standards,general welfare or adversely affect the use of the adjacent property values. Given that this petition proposes to maintain a family environment,this is very much consistent with the character of the district and is consistent with proper use of the property/land for which it is zoned. This residential setting would be compatible with the recommendations of the City of South Bend Comprehensive Plan in that it allows for housing choice to individuals,and the requested use of the property does not significantly increase traffic, or noise in the residential area.The property would not require any alterations outside that would take away from the characteristics of the neighborhood. Petitioner would like it stated for record that she is gainfully employed as a Registered Nurse. Petitioner has a willingness and desire to support the foster care program and does not need such a (;IRCLE 50' RAW 4* lop e" all 000, 311 A Z Ga 4b B te) PETITION SITE X PARCEL A" C4 04 1* 1 0.58 ACS �,� /'` La ADDRESS: 1434 GARLAND CIRCLE SOUTH SEND, INDIANA 4601 "OOLOT #7 44.70 N 90'00'00" E } l cels County Parcels MAI MAILINGAD LIN MAILIN PROP_ADD PRO PROP ReG PARCELED NAME�1 D MAILINGCFT GST GZIP R PROP_CITY R SST ZIP— A 01 8-7213- DILTZ 1454 Garland 1454 1 7847 KATHLEEN Circle South Bend IN 46614 GARLAND South Bend IN 46614 LEWALLEN PHILLIP& 018-7175- CHRISTINE" 229 N 3214 YORK 26246 M Michigan St Argos IN 46501 RD South Bend IIN 46614 NOETZE L 018-7213- JEREMY A& 1448 Garland 1448 3 7848 STACEY L Cr South Bend IN 46614 GARLAND South Bend IN 46614 HINDSLEY WILLIAM E 1343 018-7171- &PATRICE 1343 Garland GARLAND 4 604201 A Rd South Bend IN 46614 RD South Bend IN 46614 FICKETT 3111 3111 018-7201- JASON S& CAROLINE CAROLINE 57343 LAURA M ST South Bend IN 46614 ST South Bend IN 46614 018-7171- DILTZ 3102 York 3102 YORK 66054 HELEN M. Rd South Bend IN 46614 ROAD South Bend IN 46614 3119 018-7201- MAEZ 3119 1 CAROLINE 77344 ANDREW Caroline St South Bend IN 46614 ST South Bend IN 46614 018-7213- GURROLA 1434 Garland 1434 8 7850 ILASHON Cr South Bend IN 46614 GARLAND South Bend IN 46614 HILLMAN 1404 018-7171- JAMES W& 1404 RIDGEDALE 9 6051 JILL F Ridgedale Rd South Bend IN 46614 ROAD South Bend IN 46614 018-7175- BLISKO 2909 W Fitch 3215 YORK 10 624601 MICHAEL Ave Chicago IL 60645 RD South Bend IN 46614 NOLAN WILLIAM A 018-7171- 111& 1326 Garland 1326 11 6056 JENNIFER L Rd South Bend IN 46614 GARLAND South Bend IN 46614 WISNIEWSK I DONALD S 018-7171- &RIORDAN 1340 Garland 1340 12 6055 ANNE F Rd South Bend IN 46614 GARLAND South Bend IN 1 46614 SKILLERN SCOTT D 018-7213- AND JOYCE 1442 Garland 1442 13 7849 M Ct South Bend JIN 466 14 GARLAND South fiend IN 46614 LAVERTY 018-7171- ANNE 3025 York 3025 YORK 14 6043 MARIE Road South Bend 46614 ROAD South Bend IN 46614 NAGY ERNEST J AND 018-7171- BEULAH PO BOX 156044 JANE 1124 Elkhart IN 46515 3019 YORK South Bend IN 46614 HILLMAN VACANT 018-7171- JAMES W& 1404 LOT 172 166052 JILL F Ridgedaie Rd South Bend IN 46614 YORK RD South Bend IN 46614 018-7171- 3013 York 3013 YORK 176047 ZEIGER AM Rd South Bend IN 46614 ROAD South Bend IN 46614 HILLMAN 018-7213- 1 JAMES W& 1404 1404 18!7844 JILL F Ridgedale Rd South Bend IN 46614 RIDGEDALE South Bend IN 46614 SCHMUHL 018-7213- ROBERT P 1441 Garland 1441 197845 &JUDITH R Cir South Bend IN 46614 GARLAND South Bend IN 46614 018-7213- GATE'S VAN 1449 Garland 1449 2017846 E. Cir South Bend IN 46614 GARLAND South Bend IN 46614 AREA BOARD OF ZONING APPEALS 125 S. Lafayette Blvd. Suite 100 South Bend, Indiana 45601 (574) 235-9554 FAX: (574) 235-5541 February 2, 2012 The Honorable Common Council of the City of South Bend 4th Floor, County-City Building South Bend, Indiana 46601 RE: Petition for Special Exception ABZA 211/12 Dear Council Members: The above referenced petition of LaShon Gurrola was legally advertised on January 20, 2012. The Area Board of Zoning Appeals gave it a public hearing on February 1, 2012, at which time the following action was taken: Upon a motion by Mr. Phipps, being seconded by Mr. Hawley and unanimously carried, the petition for Special Exception to allow an adult foster care/assisted living home in a "SF I"district, on property located at 1434 Garland Circle, is sent to the Common Council with No Recommendation. The deliberations of the Area Board of Zoning Appeals and points considered in arriving at the above decision as shown in the Minutes of the Public Hearing, and will be forwarded to you at a later date, to be made part of this report. Sincerely, Charles C. Bulot, C.B.O. Building Commissioner CCB/cah GURROUA SPECIAL EXCEPTION PURSUANT 21-09.3(D) AREA BOARD OF ZONING APPEALS FINDINGS OF FACT I, THE PROPOSED USE WILL NOT BE INJURIOUS TO THE PUBLIC HEALTH, SAFETY, COMFORT, COMMUNITY MORAL STANDARDS, CONVENIENCE OR GENERAL WELFARE BECAUSE: The evidence presented at the Area Board of Zoning Appeals meeting was in the Board's opinion conflicting and inconclusive. Therefore,the Board is of the opinion that the Council would be in a better position to hear further clarification and more evidence on this petition. 2. THE PROPOSED USE WILL NOT INJURE OR ADVERSELY AFFECT THE USE OF THE ADJACENT AREA OR PROPERTY VALUES THEREIN BECAUSE: 3. THE PROPOSED USE WILL BE CONSISTENT WITH THE CHARACTER OF THE DISTRICT IN WHIC14 IT 1S LOCATED AND THE LAND USES AUTHORIZED THEREIN BECAUSE: 4. THE PROPOSED USE IS COMPATIBLE WITH THE RECOMMENDATIONS OF THE CITY OF SOUTH BEND COMPREHENSIVE PLAN BECAUSE: CONDITIONS OR REVISIONS: DECISION IT IS THEREFORE the decision of the Board that this request for Special Exception shall be passed onto the City of South Send Common Council with a: NO RECOMMENDATION ADOPTED this I ST Day of FEBRUARY, 2011. YES NO MICHAEL URBANSKI ABSENT RANDALL MATTHYS 0 JACK YOUNG 0 GERALD PHIPPS a] ROBERT HAWLEY JOE VELLEMAN 0 BRENDAN CRUMLISH Area Board of Zoning Appeals—February 1, 2012 Jt A) _ t LASHON GURROLA The petition of LaShon Gurrola seeking a Special Exception to allow an adult foster care/assisted living home in a"SF I"district, on property located at 1434 Garland Circle, Portage Township. Zoned "SF I". MS. LASHON GURROLA: Good afternoon, LaShon Gurrola, 1434 Garland Circle, South Bend, Indiana. I am here today seeking a Special Exception special use to continue to operate an adult foster care home. Back at the end of`09 or early 2010 I started the process to become a foster care provider. The State came out and did their evaluations. I took the necessary required courses, being CPR certified, first aid and so forth and I started with Indiana Mentor as a foster care provider. Back in September of 2011 I received notice from Code Enforcement that I needed a Special Use to be able to be a foster are provider for adults meaning seniors and disabled adults. So that is why I'm here. MR. URBANSKI: Okay. Did you not come before us before to ask us to make... MS. GURROLA: Yes. MR. URBANKI: To make a, or for a Special Exception to become...you came to us but then you opened one up... MS. GURROLA: No sir. I petitioned for a Special Use to operate a girls group home for up to 10 to 12 girls. No, I did not open up a home anyway. In 20101 became a foster care provider. I did not open a group home. MR. URBANSKI: But you do have people living in the house now? MS. GURROLA: Two, yes sir. MR. URBANSKI: Okay but there's people living in there now? MS. GURROLA: Two foster care placements, yes. Currently two foster care placements, correct. MR. URBANSKI: Children or elderly? MS. GURROLA: One senior and one male 41 years old. MR. URBANSKI: Okay. MR. HAWLEY: The same property right? MS. GURROLA: Yes sir. 30 Area Board of Zoning Appeals—February 1, 2012 that no I was out of compliance and I needed to go forth with either ceasing to operate the foster care program or to apply for Special Use exception. MR. PHIPPS: But before you took any patients in for assisted living care you did not inquire of anybody with the City if you needed any approval for that? MS. GURROLA: I don't have patients sir, it's a foster care. I consider them family members and my understanding was with foster care you need a license from the State, which I have, and whatever agency is the placing agency that you're meeting the requirements. I did not check with any State official for foster care, no I did not. MR. URBANSKI: And they did not say anything to you about it? MS. GURROLA: They, who sir? MR. URBANSKI: They the State or whatever agency the foster care members that they put in your home? MS. GURROLA: No they did not. Like I said I only became aware through a letter from Code Enforcement. And that was September, 2011, September 10. They knocked on the door, I opened the door, he handed the letter and walked away. But I was sighting Sec. 21-11 of the City defining family if people are placed under a licensed placing agency, how would I not think that they would be considered family? This is a foster care program. MR. URBANSKI: But they're not, and I think it says blood, does it not Chuck? MS. GURROLA: For foster care...no sir... MR. URBANSKI: I don't know the exact ma'am so that's why I'm asking Chuck. MS. GURROLA: Okay. I have it if you need it. MR. BULOT: Family, one or more persons related by blood, legal adoption or marriage, living and cooking together as a single housekeeping unit exclusive of household servants or a number or persons but not exceeding two persons who are not related by blood, legal adoption or marriage, living and cooking together as a single housekeeping unit shall be deemed, constitute a family. A person or persons residing with a family as here and above defined by reasons of placement by public licensed agency shall be considered as members of that family. MR. URBANSKI: Mr. Fedder how would you rule that? I mean how are we set...? MR. FEDDER: Well I don't know if I can just give you an off the cuff opinion. It seems to me as we're mixing up exactly what was there before and what we're trying to do now that's why I required from the first 32 Area Board of Zoning Appeals—February 1, 2012 application it was other people. In this application just Mrs. Gurrola. I have not heard any information to me . as to who's living there. Are these people really blood relatives or are they friends. How did they get in there? Do they apply or are recommended by an agency to reside in that facility? What happens if one of those people move out? Are they replaced? I just think there's a lot of information that's not available as we're talking here other than the fact that two people are living in this house with the petitioner. Apparently not blood related and I don't know if they are referred there by a governmental agency. All I know is she's indicated she's been licensed by a governmental agency. I have not seen any documentation to that affect. So I would just have some questions as to exactly what the facts are in this case and exactly what we being asked to do. Again, what every we decide the ultimate decision is with Common Council, so I would think that if we don't have this information available to us certainly it ought to be made available to the Council. At this point in time I don't how they're there, who they are, why they're there or under what circumstances and whether or not they're being assisted by State or Federal agency for finances. Whether or not they pay for services rendered to them. Whether they have vehicles at that facility. Whether they receive medical attention. In other words whether or not a doctor visits them or who provides medical and physical care for them including food and shelter. So all I seem to know at this time is that we have a lady that has two people living with her but the circumstances of how, when and why are certainly clear to me at this time. MS. GURROLA: Can I answer any of that sir? MR. FEDDER: Yes. MS. GURROLA: There are representatives here from Indiana Mentor that will be happy to explain the program. They're the ones who placed the individuals in my home and my care. And again it's not a facility it is a home and I have whatever license here you may want to view. The certificate from Indiana Mentor as well as the State of Indiana to be a foster care provider. MR. FEDDER: I would think you would want to put those into the record then. MS. GURROLA: Well I'll do whatever I need to do sir. Thank you for reminding me. I also would like to reference other similar petitions. At 1126 Victory Ave, for the same type of situation as well as 1823 S. St, Joseph Street and these petitions were of the same nature, special use to allow for assisted living or some type of an adult care facility. What I'm asking, so it's clear to you sir for understanding is, I'm asking for permission to continue the adult foster care program with the Special Use Exception because they are not blood related. And if the City is not recognizing the foster care program as a family then, therefore, I need the Special Use Exception. The who, the why, the where, how they got placed, Carrie Pentigodis from Indiana Mentor can answer that question. But I would also like to state for the record, since these individuals have been at the home there has not been any traffic concerns, any parking issues. I may have had the police out twice. One was to help me register our vehicle, that does not belong, that is a family car. I wasn't able to get to the BMV so the police came out for $30.00 to make sure the VIN number was correct. And another time for a well being check. I've had no negative encounters with CPS, Child Protective Service or APS, Adult Protective Service because at times people make random calls about my home and these people show 33 Area Board of Zoning Appeals—February 1, 2012 up and there's been no negative findings ever. So at this time if it's alright I would like Carrie to come up to explain the Adult Foster program. MR. VELLEMAN: I do have a couple of questions, ma'am. So currently you're living at the facility... MS. GORROLA: It's a home, yes I am. MR. VELEMAN: You're living in the home with two other people not related to you? MS. GORROLA: They're two individuals placed there through this foster care program, yes sir. MR. VELLEMAN: How many total people would you have there? I mean is two the maximum you're ever going to have or are you planning on having more? MS. GORROLA: Well when the State came out, when they come out they do an inspection of the whole house, they take safety into consideration. They the exits into consideration as well as the type of the foster members. So when the State came out they deemed me qualified for five. I didn't put a number on my petition. I, and again,just did some references checking back, a nurse did the same thing she, at this hearing they put a cap at four or if it's over five then Building has to get involved. There are smoke detectors, fire extinguishers, the State of Indiana came in to do all these safety checks. MR. VELLEMAN: Okay. I'm just trying to, I understand when someone says foster tome I think of six year old kids that need a family for them to stay. I know people who have had 12 foster kids at one time versus 5 adult foster people that may have other people coming.., to me a foster child is someone that's not going to have parents come visit them or anything like that where as an adult foster care they may have people that aren't capable of caring for them but still want to see them so you. So you have a visitation thing going on versus where you have 12 kids there's no one coming to see them all the time. I'm trying to clarify the difference in my mind. You're not going to have children there? MS. GURROLA: No foster care children. MR. VELLEMAN: Right. MS. GURROLA: As far as visitors, they may be some visitors. It's no different than a family on the block or around the corner with six, seven kids...and they have a nanny and a housekeeper and then those vehicles and then their own two, mom and dad's car. It's no more traffic than that. It's the same type of situation. Go to the grocery store, go to the doctor, you go out to eat, it's the same type of situation. MR. VELLEMAN: I understand and as these are reading just a couple of the letters, multiple sclerosis you're taking in people, these foster people are ones that may require more assistance than just someone, I not being capable of doing anything for someone could care for... MS. GURROLA: I'm not sure what letter you're referring to. Maybe it's, you're asking me if... 34 Area Board of Zoning Appeals—February 1, 2012 t MR. VELLEMAN: Do have special needs people in your care or that live with you in your foster home? MS. GURROLA: I don't know how you're defining special needs but if you're asking of a specific health situation or diagnosis, for their privacy I won't say exactly what it is but... MR. VELLEMAN: Sure. MS, GURROLA: One individual has some needs but again that's no different then if my elderly neighbor slipped and fell and broke his hip or her hip and they may need some help at home, rehab may come in,the doctor may order six weeks of physical therapy at home. So I'm not seeing that I'm having anymore traffic or anymore in and out than anybody else. MS. VELLEMAN: I think you clarified that. Thank you I appreciate your... MR. URBANSKI: One other clarification. So you take care of them 24/7 or you have people that work for you, employed by you? MS. GURROLA: No sir. This is not a business. Indiana Mentor oversees this program. And they may advertise or have a web site where their different locations of homes but I do not. I do not employ people. I do not have quote, unquote, staff that are paid by me to do anything. MR. URBANSKI: Okay so therefore you take care of them yourself 2417? MS. GURROLA: You know some things they're able to do themselves. This is not a situation where they're needing 2417 hands on care. I'm a nurse. I am employed. I work full time. What Indiana Mentor does is insure that I have trained respite people that are part of my family. They may live there or they may not. In this case they do not. That if I need to go get my hair done or I'm going to work, that they're CPRed and they're trained for first aid to just, if that situation should arise. MR. HAWLEY: I have a question. Are there age factors, I need to be educated on this because I'm real.. MS. GURROLA: On adult foster care? You need to be educated on adult foster care? MR. HAWLEY: Yeah. Is there an age factor? I mean to qualify for this do yqu have to be 18 years old, 20 years old, or what determines adult foster person qualifies? MS. GURROLA: Well maybe I can have Carrie come up at that point. MR. HAWLEY: And then my other question would be, do you actually have like a contract with them to provide this service? MS. GURROLA: With the individual or with Indiana Mentor? 35 Area Board of Zoning Appeals —February 1, 2012 MR. HAWELY: With both. MS. GURROLA: I have no contract with any individuals. I am a mentor which is a foster care provider through Indiana Mentor. They're the only people I have a contract or have the relationship as far as anything on paper. The individuals residing in the home there is no verbal, written legal contract. MR. HAWLEY: Do you get paid then a certain amount of money for...? MS. GURROLA: The individuals, excuse me, the individuals pay room & board but that fee goes to Indiana Mentor not to myself. MR. URBANSKI: But then to they send money to you? MS. GURROLA: They who sir, Indiana Mentor? MR. URBANSKI: They, the Indiana Mentor program? MS. GURROLA: Um,um. There is... MR. URBANSKI: The way you get the money to help you to take care of these... MS. GURROLA: They reimburse for certain expenses like travel, go to the doctor, utilities. They give a reimbursement but there is no pay... MR. URBANSKI: There is per diem. So in other words they do give you a X amount dollars per day for room and board... MS. GURROLA: That's how they set their reimbursement up, yes. MR, URBANSKI: Yes Chuck. MR, BULOT: Yeah I just want to clarify something. The use of the definition of family. Because of the nature of the information that we received, a lot of times we're not the final line of expertise in this area. So we forwarded all of the information we had to legal in order to get a determination- MR. . MR. URBANSKI: That's the City of South Bend? MR. BULOT: City of South Bend. MR. URBANSKI: I just said that to clarify. 36 Area Board of Zoning Appeals—February 1, 2012 MR. BULOT: And the response we got back was based on the information'that they received, which was our file on this, was that they did not meet the definition of family as defined in the ordinance. MR. URBANSKI: And that's from the City of South Bend Legal Department? MR, BULOT: That's correct. MS. GURROLA: So that's why I'm seeking the Special Use because my initial thought was that it was a foster family. And when I found out it wasn't 1 immediately contacted ... MR. CRUMLISH: I have a question. Go you have other relatives other than yourself, do you have children, husband or family of your own also that reside in the home? MS. GURROLA: I have two daughters and I have to tell you since it was brought up about a previous petition, shortly there after that last hearing where I was petitioning for the girls group home about a month or so later I got a anonymous, Child Protective Services received an anonymous call that I was operating an illegal child care facility. And my girls were out riding their bike and pulling weeds, I don't know what precipitated that call but it was an unfounded call so at that time I made a decision to put girls in private schools elsewhere... MR. URBANSKI: How old are your daughters? MS. GURROLA: 24, 18, and 13. And I would like to state for the record the 24 old really, the last petition had her name on it, Veronica and there was some issues or questions about the homeowners ability to maintain the property. She was deployed about, to Afghanistan, about two months after closing. The house was originally purchased for her. She married a local gentleman from South Bend area. That came out of the blue but I have the military paperwork and everything. And I didn't really harp on that or bring it up at the last hearing because I didn't expect all the hoopla about the property and of course she didn't show up for court, she was in Afghanistan. Was she suppose to leave there and come to a hearing about a roof. I also today brought the property inspection. This was purchased as a foreclosure. We had it inspected December, 2006. It was in horrible, horrible condition. Not even livable condition but that was okay. We knew we would put the time and the work into it. When people come in these hearings and say that these homeowners let this property fall by the wayside, that's incorrect. I have a report saying "this is how it was". Did it take some time to get livable enough for Code, sure but where was Code Enforcement when the bank foreclosed it. Were they getting tickets and notices about the roof and window? I don't think so. Just little tid bits of history that I would like this Board to know when they're considering this recommendation. MR. URBANSKI: So at the present time for the record, at the present time, you and your two foster people are the only ones residing in the house? MS. GURROLA: Oh there's a family member. Myself, so a total of four people. 37 Area Board of Zoning Appeals—February 1,2012 MR. URBANSKI: Earlier when I asked you that question you said... MS. GURROLA: I may have misunderstood you sir, I thought you asked about the children but you know they won't be seen... MR. URBANSKI: So have you and another family member? MS. GURROLA: Correct. MR. URBANSKI: Plus two foster? MS. GURROLA: Correct. A total of four people in a home that has six plus bedrooms and five bathrooms. Over 4,000 square feet. MR. URBANSKI: Is the house then still in your daughter's name who is in the service? I don't if she's still in or was in the service or is it in your name? MS. GURROLA: She's still serving her country and because of all the issues that had occurred from the previous petition. The house is solely in my name. I am the sole petitioner and that way it didn't cause her any harm with her military career because when you get tickets and fines and all kinds of things that can really hurt you when you're trying to elevate your self up in the military. So she is not on the title deed, it's just strictly myself. I take of the mortgage, I pay the taxes and everything's current and the property has been,deemed by the State as safe. I've not had any issues with Code Enforcement so... MR. URBANSKI: Is one of your daughters there back with you? You said you're there with another family member. MS. GURROLA: Correct. It's not my daughter sir. I have one in the military, I have two in private school. MR. PHIPPS: Can we hear from the other lady? MR. URBANSKI: Yes. I'm sorry. MS. CARRIE PANDERTITIST: I work for Indiana Mentor. We're a state wide company that provide services for folks with developmental disabilities and group homes in supportive living but we also do children foster care and newly adult foster care throughout the state of Indiana. MR. FEDDER: Now do you have a local address? MS. PANDERTITIST: Yes we do. It's 522 W. McKinley in Mishawaka. And our Iocal staff is out of that office and couldn't be here today and I'm out of our Merriville office. But I oversee the recruitment for homeowners. We subcontract with homeowners for adult foster care. They're not employee's of ours, Ms. Gurrola did through advertisement seek out and she did come to me with her interest in doing adult foster 38 Area Board of Zoning Appeals—February 1, 2012 MR. URBANSKI: And it could have been yes one is. We didn't have to know what it was. But several of these answers, in my opinion okay, are kind of cutting a line, a hair. MS. GURROLA: No I think I'm being pretty straight forward. MR. URBANSKI: I don't. That's just me personally. MR. PHIPPS: Indiana Mentor is not a state government agency? It's a private business that places clients in homes. Ms. Gurrola works for you... MS. PANDERTITIST: She is a subcontractor,not an employee? MR. PHIPPS: She's subcontracted by you to take care of people. Right now you've placed two people in her home. Her home has been approved by the State as acceptable for this use and it's approved for up to three people? MS. PANDERTITIST: Up to four people. But yes we have two there now and we stopped as soon as we heard about the zoning issue we did not place any more folks there until the outcome of this Special Use exception. MR. PHIPPS: If the zoning problems are taken care of and the City approves this as a Special Use, you could place up to four people there right now? MS. PANDERTITIST: Four. MR, PHIPPS: But if the City would limit it to fewer than that then you would of course abide by that? MS. PANDERTITIST: Absolutely. MR. VELLEMAN: How many other homes like this, this doesn't have to do with this hearing, how more homes like this do you have in the area? MS. PANDERTITIST: We have one in South Bend,one other in South Bend. MR. VELLEMAN: Do you know if they have their Special Exception for this? MS. PANDERTITIST: I know that they do not. MS. NAYDER: Can I make my comments before we open it up for the general...? MR. URBANSKI: Yes. 40 Area Board of Zoning Appeals—February 1, 2012 MR, URBANSKI: Okay just as this is being passed down, we do have six letters, I would have to say long letters, in opposition to. We have one from Jeremy and Stacy Noetzel, a Robin Lerhman, Lisa Lerhman, Van and Jean Gates, Ann Riordan and Don Wisniewski, and the last one against is Ami Zeiger. So we have six in opposition to. MR. STEPHEN STUDER: I'm an attorney with the firm of Kreig Devault with office 4101 Edison Lakes Parkway, Mishawaka, Indiana. I'm here this afternoon representing neighbors who live on the cul-de-sac in the immediate vicinity including Mr. and Mrs. Gates, Mr. and Mrs. Diltz, Mr. and Mrs. Bycraft, Mrs. Skillern, Mr. & Mrs. Wisniewski, Ms. Lerhman, Ms, Laverty, and Mr. and Mrs. Hillman. We object to the proposed use here for the same reason that this very Board rejected unanimously the petition of 2009, This is the wrong location and in more particular this is the wrong person to be running this business. During her ownership of this single family home the petitioner has repeatedly misrepresented herself and is continuing to violate or has continued to violate City ordinances. For example in the 2009 petition the petitioner stated to the Board that she had fled paperwork with the State of Indiana for a group home. In fact she did not, This Board unanimously rejected her bid to open a group home and prior to being heard by the City Council she withdrew that application. She also acknowledged at that time making numerous improvements to the home of over $100,000 despite the fact there were no building permits. When the petitioner was turned down in 2009 how did they respond? In April of last year they opened up an assisted living care and until they were sited by the City Code Enforcement, which you have a copy of, they did not apply for a Special Use permit. Now we've heard testimony that they didn't know they required one, etc. And even if we get over that issue now it appears that the petitioner has brought two businesses before this Board. When she bought it in 2006 she testified in 2009 that she bought it as a vacation home,today she says she bought it for her daughter. It sat vacant from 2006 to 2009 until they filed the petition to be a group home. During that time in 2007, 2008, there were code violations sited by the City of South Bend. It's interesting to note that even the staff can't figure whether this is a group home, a group residence or an assisted living care facility. But what we do know is that contrary to her representations today we do not believe Ms. Gurrola lives at this home. I provided to you a filing with a Mississippi State, Secretary of State office which indicates that Ms, Gurrola shows her home, as recent as this last year, as being 835 East Ave., Oak Park, Illinois. She opened up a business in Mississippi known as Comfort Companion Choice Inc. She also has a filing in the State of Illinois Secretary of State Office called Comfort Companion Choice Inc. which has an address of 818 Harrison Street, in Oak Park, Illinois and then that application she also indicated her home with 835 S. East Ave., in Oak Park. I've also provided you with a copy of the filing, the Secretary of State office in the State of Illinois. And it shows the president of that company is LaShon Gurrola at 835 S, East Ave., Oak Park, Illinois. The concern we have, among others obviously, is that Ms. Gurrola represents herself as residing at this home in in fact she showed another filing with the Secretary of State office in Mississippi and in Illinois that a primary residence is in Illinois. We also have according to public records that she has a home in Plainfield, Illinois on which she has a homestead exemption which would indicate that that would be her primary home in Illinois not the Oak Paris home. The petitioner also states that she is gainfully employed. She says that in her petition. And yet she's suppose to be the primary caregiver, I don't know how you can be gainfully employed outside the home and be the primary caregiver. It does not make sense to us. These homes are close together. There's been issues with this home the way it's been maintained since 2006. There's a reason this Board denied unanimously the petition with an unfavorable recommendation last time 42 Aren Board of Zoning Appeals —February 1, 2012 to the City Council. We do not believe that this petitioner meets the requirements of meeting the community moral standards, the general welfare and we do not believe that since the petitioner has a history of operating similar businesses throughout the country, and we also understand that there's been property in Arizona as well but we couldn't verify that, but we do knew that with the information you have today she runs businesses out of Illinois, Mississippi,and now Indiana. And the Hope House is an indication that she Filed a LLC to run a business at the Garland address, which you also have a copy of. A similar organization was dissolved administratively by the Secretary of State office in Illinois. We're very concerned about this petitioner not, she gives a lot of different answers but when you look at behind the paperwork you find that she is all over the board with this. And I think the information we provided in the record today indicates that she does not reside at this home. She cannot be the primary caregiver and for that reason we would ask that this Board unanimously send an unfavorable recommendation to the City Council. MS. JILL HILLMAN: I live at 1404 Ridgedale Road. We own the property that is five city lots and our back yard line is across the street from Mrs. Gurrola's house and actually that whole Garland Circle used to be part of our family's property before those homes were built. I think that Garland Circle was built in the first place to be single family residences and it just alarms everyone to think that there might be anything else in those homes and I don't think we want to see any precedent set that variance would be allowed for any reason. That's all, I'll keep it short. MR. WARREN DILTZ: I live at 1454 Garland Circle. That's three houses east of the house we're talking about but I grew up in the house directly west of there. I watched them build that house in my teens. I've known every, I've been in the house with every owner since then. I've met every owner, shaken hands, been at parties in and out of there, it's always been wonderful and cared for. I promise you if you went there now, if you drove down that street you could pick out what house we're talking about without even looking at the addresses. We're not helping the neighborhood here. We already have an assisted living home on York Road two blocks to the north and of course we have Ridgedale Nursing Home right up the street on Ridgedale a block away and up the hill. We really, I've lived there since 1968 in this neighborhood. When I got married and moved away I never left South Bend. Always been paying the taxes here, moved back to three doors away. We want it to be a residential area. We're not looking for a business to come in. We don't understand how you can pass something or anybody could pass anything and then it's okay in the future, we don't know if this becomes five people residence or six or whatever. How does that get controlled? Something like that isn't very well stated in any business like this. We'd like to keep this a residential area. This is one of the nicest neighborhoods in South Bend. We're all trying to build up and keep a good city here. We just that maybe we will get to see it that way. They us to speak, we have S, 9, . 10... MR, HAWLEY: Ask them to stand up please. ABOUT TEN TO TWELVE PEOPLE STOOD AT THIS TIME MR. DILTZ: All residents in the neighborhood but some of them not quite willing to speak as much as I am. 43 Area Board of Zoning Appeals—February 1, 2012 MR. URBANSKI: Is there anyone else wishing to speak? Since there is no one else, LaShon would you like to respond to the ones that spoke in opposition? REBUTTAL: MS. GURROLA: Yes I would. Sir, I don't know that there's any law against owning properties, owning businesses, my neighbors own businesses. They own homes in Florida and go vacation and go here and go there but all this spotlight seems to be on me. I didn't misrepresent myself. I have the same business registration as the attorney here and is registered with this address in this state. I have my Indiana nursing license with the address that I am stating of 1434 and if need to submit this to be officially on record, then I will do so. MR. URBANSKI: It's choice ma'am. MS. GURROLA: Yes I will. I have a drivers"license and I also have as I stated, yes I work, I work as a nurse. Because I work does not mean I cannot be a foster provider. Here I have the last two years of back and forth, go to work, come home, go to work, come home, toll so I'm spending an awful tot of money to get some place that I don't live would be the thing. I really resent having to go through, I appreciate the Boards time, I did however look at the transcripts from the other people petitioning for Special Use for this same type of thing and they're no where near, no where near the same and this is before even people are speaking in opposition. I know where I live. I know where I lay my head down. These people over here, when I had to send these letters out I was sending some addresses to Chicago. Obviously they own more than one property too. So where's the crime in that. Comfort Companion Choice is not a foster. It is not a group home. It is providing, which is registered here in Indiana with an office location here in Indiana. It is offering services to seniors in their home for four hours a day. Where an employee goes. What is the crime in that? That is totally different from what I am seeking today. And I really don't see the relevance. As I stated in my letter, I ask the Board to please consider relevant information. Anybody can go digging for dirt. Okay the last time because other people were involved and maybe was getting hurt, I dropped the petition. That's not the case this time. That won't be the case this time. So however that I'm looking for a favorable recommendation, if it's no, if it's unfavorable, I'm still planning to be at City Council either way. So if this is what it is and this is what I have to put in record to prove what I'm saying then that's what I'll do, but I do note that other people seeking the same thing didn't seem to have to go through all these interrogation type. MR. FEDDER: I just have one question. What is the Hope House Organization, LLC that the gentleman put into the record? MS. GURROLA: When I petitioned for the group home that was set up as corporation. MR. FEDDER: Is there a reason you didn't apply in the LLC as opposed to your name or was that just a choice you decided? 44 Area Board of Zoning Appeals—February 1, 2012 MS. GURROLA: To my knowledge the Hope House organization has been dissolved in Indiana. I mean to my knowledge and if it's not I'm not aware. There are no employees ... MR. FEDDER: Well it just shows here that there was something filed in 2010 and 2011 that makes reference to the president of this organization that somebody called Eric Hines. MS. GURROLA: Okay and at that time when I petitioned for the girls group home there was an entire board of people on that and Eric Hines was one of them. MR. FEDDER: You're saying that's been dissolved and this doesn't exist anymore? MS. GURROLA: I'm not looking at what you have sir. I think... MR. FEDDER: It's the articles that you filed... MR. URBANSKI: Do you have an extra copy of that sir that you can show her sir? One of the questions too according to this the Indiana business at, the report was filed both in 2010 and 2011. MS. GURROLA: For Hope House? For...? MR. URBANSKI: Yes for Hope House Organization, LLC, 1434 Garland Circle. MR. FEDDER: That's what makes this so confusing is we just don't know exactly who we're talking to and exactly what the facts are which is causing us some concern. MS. GURROLA: This petition is with one person. The previous petition was with a group, Hope House Organization. There is no confusing in the two. This petition doesn't have Hope House Organization. MR. URBANSKI: There is confusion with me ma'am because of the fact that we have that the years filed was 2010 and 2011 which is after you were here the last time. So if we got this come through the Indiana Secretary of State office, actually it was 411/11 at 10:32 in the morning. The years 2010 and 2011 had been filed as this business being operated at 1434 Garland Circle... MS. GURROLA: No sir that business is not being operated at 1434 Garland Circle. MR, URBANSKI: Okay what I'm seeing, I should rip up? MS. GURROLA: I mean please do. The foster care program has nothing to do with Hope House Organization, nothing at all. This gentleman is telling you I'm running a business in Mississippi, so I'm a lot of places. MR. URBANSKI: Are you running a business in Mississippi? 45 Area Board of Zoning Appeals—February 1, 2012 MR. URBANSKI: So both these letters are from... MR. VELLEMAN: The same family. MR. URBANSKI: The same family? MR. VELLEMAN: It's look like mother and father, Mark and Kathy Wieczorek and then his sister Beth Bird. They both wrote letters for him. MR. HAWLEY: Oh I see. Well that clarifies it for me. Mark is staying there? MS. GURROLA: Mark is there through the foster care program. MR. HAWLEY: Thank you. MR, PHIPPS: Ms. Gurrola you mentioned that you are fully employed as a nurse. Can you tell us where you work or who your employer is? MS, GURROLA: I mostly work for myself With this Comfort Companion Choice as a nurse I go out and in the field to check on clients to insure that they're getting their services. I also on staff four shifts a month at Elmhurst Memorial Hospital. I do four shifts a month. MR. PHIPPS: Thank you. MR. URBANSKI: Now when you say shift, is that four days or four twelve hour shifts or is that four week shifts? MS. GURROLA: That is four days a month and it's an eight hour shift. MR. URBANSKI: So you're working full time thirty two hours a month? MS. GURROLA: I was explaining my shifts at the hospital. He asked me where I was employed. I told him I work for myself and I work four shifts a month at the hospital. MR. URBANSKI: I understand that. Okay, any other questions from the Board or staff? MR. FEDDER: Nothing other than I suggest that LaShon put a lot of this stuff into the record especially if she's going to go in front of the Council so that maybe some of these questions may be answered ahead of time. MR. URBANSKI: Understanding, number one, that's your choice to do, which I mentioned to you before. If you do it fine. It's kept for our records. If not that's your prerogative, okay. Understand this Board is 47 RESOLUTION Bill No. 12- A RESOLUTION OF THE COMMON COUNCIL OF THE CITY OF SOUTH BEND,INDIANA, PROMOTING AND FACILITATING GREATER TRANSPARENCY AND ACCOUNTABILITY OF INDIVIDUALS APPOINTED BY THE COMMON COUNCIL TO VARIOUS CITY BOARDS AND COMMISSIONS AND THANKING THESE DEDICATED VOLUNTEERS FOR THEIR SERVICE TO OUR COMMUNITY each year the South Bend Common Council has the opportunity to appoint city residents to various boards and commissions;and the Council thanks all individuals who have taken the time to complete applications and who have interviewed for the consideration to be appointed by the Council as openings become available;and the Council notes that in 1990, the South Bend Common Council passed Ordinance No. 8102-90 which established Article 3 in Chapter 2 of the South Bend Municipal Code which governs the process used by the Council when making citizen appointments;and NJ" in the interest of promoting and facilitating greater transparency and accountability,the Council wishes to acknowledge that as a condition of each person appointed by the Common Council, all citizens appointed agree to "verbally report to the appropriate Council Committee and/or to the Common Council under Special Business at least once per calendar year with an overview of the items handled through the committee, commission, or other agency on which he or she participates". as follows: Section I. The Common Council of the City of South Bend, Indiana, wishes to thank each and every South Bend resident who has volunteered his or her time and dedication by serving as a citizen appointee of the Council on various boards,commissions,and other entities Section II. The Council believes that the public at large should be aware of the vital services which these citizen volunteers provide to the City of South Bend, and further wishes to emphasis the annual reporting to the Common Council and/or to the appropriate Council Committee. The Council requests the Office of the City Clerk send a copy of this Resolution to ail current Council appointees. Section III. This Resolution shall be in full force and effect from and after its adoption by the Council and approval by the Mayor. Oliver Davis,6' District Co ncil Member Henry Davis,Jr.,2°' District Council Member •,d d 0 ,2002 Pete Buttigieg,Mayor South Bend,Indiana FNNd ilra C1rk'� Z : * John Voorde,City Clerk x.fE.111L) i D' HF''OYFD' JOHN VOORVE CITY CLERK,SOUTH OEND,IN City of South Bend I-,- PEA CL� �� - ... ;* Common Council I8G5 441 County-City Building . 227W.Jefferson Blvd (574) 235-9321 South Bend,Indiana 46601-1830 Fax (574) 235-9173 Derek D. Dieter http://www.southbcndirLgov President Oliver J. Davis March 21, 2012 Vice-President The South Bend Common Council Karen L. White 4`h Floor County-City Building Chairperson, Committee South Bend, Indiana 46601 of the Whole Tire Scott Deaf'Council Members: First District We are introducing the attached resolution in the hope of accomplishing two (2) Henry Davis, Jr. objectives, namely: Second District Valerie Schey • To thank all current and past citizen residents for their service to the community Third Distri ct as a Council appointment to the various boards and commissions Fred FerIic • To raise awareness, greater transparency and accountability by making the Fourth District general public aware, that each of the Council appointees not only volunteer the time and talents when attending various meetings to which they are appointed but David Varner also highlighting the fact that each of these volunteers are required to provide a Fifth District yearly update to the Council and/or Standing Committee with updates Oliver J. Davis Each year, the Council appoints many city residents to serve on a volunteer basis. Sixth District We are indebted to these residents for their many talents and services, which help Derek. D. Dieter enhance our city and its many operations. At Large We seek your support of this resolution. Many thanks. Gavin FerIic At Large Sincerely, Karen L. White At Large Oliver Davis, Vice-President South Bend Common Council Henry Davis, Jr. 2"d District Council Member South Bend Common Council Attachment RESOLUTION NO. BILL NO. 12-26 A RESOLUTION OF THE COMMON COUNCIL OF THE CITY OF SOUTH BEND,INDIANA, ENCOURAGING A RIVERFRONT REDEVELOPMENT DISTRICT ALONG THE BEAUTIFUL ST.JOSEPH RIVER ST_ JOSEPH RIVER 31F MILES " tT as i- 1N i.nll.a.ltl 90 .. y 15 as �a the Indiana Department of Natural Resources depicts the above-referenced map on their website about the St. Joseph River at http_//www.in.in-gov/dnr/outdoor/4479.htm ; and (Wd this website describes the historical significance of the St. Joseph River going back to 1669 when the French explorer, LaSalle, navigated the river from Lake Michigan to what is now known as the City of South Bend; and discusses the many recreational activities such as boating, fishing and "just experiencing the river"; and d� in 2004, the Indiana General Assembly enacted Public Law No. 72-2004 which sets forth regulations for"municipal riverfront development projects"; and (JA" since that Indiana state law took effect, many Indiana communities such as Columbus, Kokomo, Highland and Madison — just to name a few, have created Riverfront Redevelopment Districts which qualified for the required permits after having demonstrated that the proposed municipal riverfront development project area meets the criteria addressing having at least one (1) boundary on the side of a river; that the premises would be properly located from the river; that the permit premises are within an economic development area, a redevelopment project area, or an urban renewal area; and that part of the funding for the project would be funded by city or state monies; and 6c in light of the fact that.Indiana Code § 7.1-3-20-16.1 (c) requires the boundaries of the municipal riverfront development project to be specifically designated by the Common Council, it is important to have input from the legislative branch of the City South Bend involved in the planning stage so that the Council has the opportunity to have input in developing positive and vibrant visions for a riverfront development can move forward. Resolution Encouraging a Riverfront Redevelopment District—page 2 as follows: Section I. The Common Council believes that the City of South Bend, Indiana, should move forward in exercising its authority on an Indiana State Law which has been on the books since 2004, so that a Riverfront Redevelopment District is created along the beautiful and majestic St. Joseph River which flows through out city. Section II. The Common Council believes that the vision for such a Riverfront Redevelopment District should, in addition to addressing the state law requirements which encompass preparing detailed maps, project boundaries, and all of the other criteria; that the process should be as transparent and open so that the Common Council, the City Administration and the residents and business owners have their voices heard. As development of the proposed Riverfront Redevelopment District's overall plan, goals and objectives are created, discussions should also focus on: • Specific priorities and measureable outcomes • Funding sources • Implementation Timetables • Outreach and promotional activities which would engage our entire South Bend community on this exciting riverfront project. Section III. This Resolution shall be in full force and effect from and after its adoption by the Council and approval by the Mayor. Henry Davis, J ' t Council Member _ i vis, 6` Di 51 Member [Filed In i rje,,�MAR 2 1 N12 JO JOHN voonoE C�EAK,'SOUTH SEND.e v John Voorde, City Clerk Pete Buttigieg, Mayor of South Bend N101 APPRO Ea ADOPTEO SOU TN O -'�- City of South Bend CE '; Common Council 1865 441 County-City Building . 227 W.Jefferson.Blvd (574) 235-9321 South Bend,Indiana 46601-1830 Pax (574) 235-9173 Derek D. Dieter http://www.southl>endln.gov President March 21, 2012 Oliver J. Davis Vice-President The South Bend Common Council 4`h Floor County-City Building Chairperson, Committee Karen W13C South Bend, Indiana 46601 of the Whole Re: Riverfront Redevelopment District Tim Scott First District Dear Council Members: Henry Davis, Jr. We are pleased to introduce for your consideration a resolution which will hopefully Second District jump-start the development of a Riverfront Redevelopment District along the St. Valerie Schey Joseph River. Third District Since 2004, an Indiana state law has been on the books which provides a tool to Fred Ferlic create a "municipal riverfront development project". We are attaching for your Fourth District review, a copy of Indiana Code § 7.1-3-20-16.1, which sets forth the process to be followed. David Varner Fifth District Throughout the State of Indiana, many communities have exercised the opportunity to develop vibrant riverfronts. We are attaching information on just some of the Sixth istrict J. Davis Oliver texisting rivcrfront development districts in Indiana, such as: Sxth Derek D. Dieter City of Anderson, Indiana's Municipal Riverfront Development District At Large encourages the development of arts, cultural activities and final dining Gavin Ferlic [Brochure & 1 page summary attached] At Large ■ City of Columbus, Indiana's Riverfront Development District which has Karen L. White increased their permits from five (5) to ten (10) three-way alcohol permits At Large within the District [Resolution No. 27-2010, Local Guidelines addressing objectives and criteria for license allocation, purposes & goals, District requirements, criteria &factors, application procedures attached) ® Town of Highland, Indiana's Riverfront Development District which focuses on their Ordinance Nos. 1400 and 1433 passed on July 14, 2008, and sets for the overview, procedure and the State of Indiana forms for "Application for new or Transfer Permit" and the "Property Tax Clearance Schedule" as well as the Town of Highland Redevelopment Commission verification form for proposed restaurants to be located within the riverfront district including the Lake County Surveyor's Office verification. Cover Letter to the Riverfront Development District Resolution March 21,2012 Page 2 ■ City of Kokomo, Indiana's Redevelopment Commission Riverfront Guidelines which address: Riverfront Alcohol Beverage Licenses, Purposes and Goals, District Requirements, Criteria and Factors, and the application procedures • City of Madison, Indiana's Riverfront Development has posted information on their website about an Interactive Flood Sculpture Competition which focuses on the history of the Ohio River flooding which will allow "young and old alike to experience the height of the flood waters". This is just one example of the collaboration going on in this community. We are truly excited about the potential of creating a Riverfront Development District in South Bend. Time is of the essence in moving positively and creatively forward on this project. We look forward to discussing this with you further on Monday at the Community and Economic Development Committee meeting. Thank you. Sincerely, Henry Davis, Jr. 2"d District Council Member South Bend Common Council Oliver Davis, Vice-President South Bend Common Council Attachments IC 7.1-3-20-16.1 Municipal riverfront development project; alcoholic beverage permit requirements Sec. 16.1. (a) This section applies to a municipal riverfront development project authorized under section 16(d) of this chapter. (b) In order to qualify for a permit, an applicant must demonstrate that the municipal riverfront development project area where the permit is to be located meets the following criteria: (1) The project boundaries must border on at least one (1) side of river. (2) The proposed permit premises may not be located more than: (A) one thousand five hundred (1,500) feet; or (B) three(3) city blocks; from the river, whichever is greater. However, if the area adjacent to the river is incapable of being developed because the area is in a floodplain, or for any other reason that prevents the area from being developed, the distances described in clauses (A) and (B) are measured from the city blocks located nearest to the river that are capable of being developed. (3) The permit premises are located within: (A) an economic development area, a redevelopment project area, an urban renewal area, or a redevelopment area established under IC 36-7-14, IC 36-7-14.5, or IC 36-7-15.1; (B) an economic development project district under IC 36-7-15.2 or IC 36-7-26; or (C) a community revitalization. enhancement district designated under IC 36-7-13-12.1. (4) The project must be funded in`part with state and city money. (5) The boundaries of the municipal riverfront development project must be designated by ordinance or resolution by the legislative body (as defined in IC 36-1-2-9(3) or IC 36-1-2-9(4)) of the city in which the project is located. (c) Proof of compliance with subsection (b) must consist of the following documentation, which is required at the time the permit application is filed with the commission: (1) A detailed map showing: (A) definite boundaries of the entire municipal riverfront development project; and (B) the location of the proposed permit within the project. (2) A copy of the local ordinance or resolution of the local governing body authorizing the municipal riverfront development project. (3) Detailed information concerning the expenditures of state and city funds on the municipal riverfront development project. (d) Notwithstanding subsection (b), the commission may issue a permit for premises, the location of which does not meet the criteria of subsection (b)(2), if all the following requirements are met: (1) All other requirements of this section and section 16(d) of this chapter are satisfied. (2) The proposed premises is located not more than: (A) three thousand (3,000) feet; or (B) six (6)blocks; from the river, whichever is greater. However, if the area adjacent to the river is incapable of being developed because the area is in a floodplain, or for any other reason that prevents the area from being developed, the distances described in clauses (A) and(B) are measured from the city blocks located nearest to the river that are capable of being developed. (3) The permit applicant satisfies the criteria established by the commission by rule adopted under IC 4-22-2. The criteria established by the commission may require that the proposed premises be located in an area or district set forth in subsection (b)(3). (4) The permit premises may not be located less than two hundred (200) feet from facilities owned by a state educational institution. (e)A permit may not be issued if the proposed permit premises is the location of an existing three- wav permit subiect to IC 7.1-3-22-3. As added by P.L.72-2004, SEC.11. Amended by P.L.155-2005, SEC 2 and RL.214-21'05, SEC.49; P.L.185-2005, SEC.2; P.L.1-2006, SEC,149;P.L.2-2007, SEC.131. nttp://www.m.gov/jcgisiative/ic/co(ie/tltje,/.i/ar3/chn.html 3/21/2012 �_Ity of t-,nuGtson, inaiana Page 1 of I !Municipal Riverfront Development District (hide...) With the intent to encourage the development of arts, cultural activities, and fine dining within the Central Business District, and as per the Indiana Code Sections 7.1-3-20-16 and 7.1-3-20-16.1, the City of Anderson has established a Municipal Riverfront Development Project in the downtown area. This designation allows business owners located in this area to purchase alcoholic beverage permits without regard to the quota provisions of Indiana Code 7.1- 3-22. Applicants must comply with all requirements and controls imposed by Indiana statues, specifically stated in 905 1AC 1-41-2 and the City of Anderson Zoning Ordinance. other restrictions to obtain these permits are as follows: a. If a for-profit establishment, the business must have a history of $200,000.00 annually in food receipts or projection of this amount if a new business. b. If a not-for-profit establishment, 1. The proposed permit premises is located in a building or structure which is designated historical; 2. The proposed permit premises is used primarily in connection with a community-based activity or event that is artistic or cultural in nature, including, but not limited to, music, including folk, contemporary, classical or jazz, theatre, including media arts, dance, including contemporary or ballet; painting, sculpture; and architecture; and which may be eligible for funding from the Indiana Arts Commission pursuant to IC-4-23- 2. In order to be considered for the permit, a completed application with the following documents must be submitted to the Alcohol and Tobacco Commission: 1. A detailed map showing the definite boundaries of the entire municipal riverfront development project and the location of the proposed permit within the project. 2. A copy of the local resolution of the local governing body authorizing the municipal riverfront development project; 3. Detailed information concerning the expenditures of state and city funds on the municipal riverfront development project; 4. A listing of the types of events being held at the proposed permit premises; 5. information concerning historical characteristics of the permit premises, if applicable. The application is available at www.in.gov/atc. All other documents needed for the application process are available through the Economic Development Department. Municipal Riverfront Development District Brochure http://www.cityofanderson.com/business-incentives.aspx 3/21/2012 t RESOLUTION 7 -2010 A RESOLUTION AMENDING THE LOCAL GUIDELINES FOR THE RIVERFRONT DEVELOPMENT'DISTRICT AND INCREASING THE NUMBER OF:NON-TRANSFERABLE RIVERFRONT DEVELOPMENTPERMITS WITHIN THE DISTRICT WHEREAS, the City of Columbus in 2004 under the authority of Ind. Code 36- 7-14,established a Central Economic Development Area (Res. 39-2004); WHEREAS,the City of Columbus,pursuant to Resolution No.7 2009 and Ind. Code 7.1-3-20-16,created a Riverfront Development District in 2009; WHEREAS,IC 7.1-3-20-16(d) allows for and authorizes the issuance of specified,non-transferable permits to sell alcoholic beverages for consumption in a restaurant on land or in a historic river vessel within a municipal riverfront development; and WHEREAS, Resolution 17,2009 allowed for and authorized the issuance of a total of five(5)permits to the proprietors of a restaurant for the purpose of selling alcoholic beverages within the boundaries of a riverfront development district; WHEREAS,the City of Columbus Common Council("Common Council") desires to develop the City of Columbus Riverfront Redevelopment District,herein attached and more specifically set forth as Appendix A, and to allow for the issuance of additional permits to sell alcoholic beverages within the City of Columbus Riverfront Development District under the local guidelines herein attached and more specifically set forth as Appendix B,all of which is in accordance with local and State laws. .NOW,'THEREFORE,BE IT RESOLVED by the Common Council that there shall be an increase of five (5)permits, for a total of ten (10)three-way alcohol permits within the City of Columbus Riverfront Development District,as the permits are contemplated under Ind. Code 7.1-3-20-16 and I6.5. q NOW,THEREFORE,BE IT FURTHER RESOLVED that the Common Council adopts the local guidelines, as amended, and as are attached herein and are more specifically set forth in Appendix B. NOW,THEREFORE,BE IT FURTHER RESOLVED by the Commons Council that all other aspects of Resolution 17, 2 009 remain in full force and effect. ADOPTED AND PASSED by the Common Council of City of Columbus, Indiana this -7 day of December, 2010. resident ATTEST: Brenda Sullivan.City Clerk Presented by me to the Mayor of the City of Columbus. Indiana, for his approval and signature this 74, day of December, 2020. Brenda Sull' an, City Clerk 2010. This RESOLUTTON approved and signed by me on this 7kday of December, Fred L. Armstrong,Mayor ATTEST: 2 Brenda Sullivan, ty Clerk Sponsored by Fred L.Armstrong, Mayor 3 Columbus Lf'-wl" Redevelopment oa �ndicna Commission !•eGS��aFrsaa—r t}r:Y— ..jam}r,..l- Local Guidelines RIVERFRONT ALCOHOL BEVERAGE LICENSE Objectives and Criteria for License Allocation The Indiana state legislature enacted I.C. 7.1-3-20 et. seq.(Act), The Act permits the Indiana Alcohol and Tobacco Commission (ATC) to issue liquor licenses (one,two, or three- way)(Riverfront Licenses) in the COLUMBUS RIVIERFRONT REDEVELOPMENT DISTRICT. The Columbus Redevelopment Commission (CRC) will recommend to the;Mayor of the City of Columbus ("Mayor") applications for liquor licenses the CRC believes will strengthen the economic vitality of the riverfront district. Background The CRC has determined that the creation of a Riverfront Development District, under I.C. 7.1- 3-30 et.seq (Act) will help further the aims of the CRC by removing barriers to development in the downtown district. Through the creation of this district, the RC will be able to attract additional development opportunities to the district, expand the tax base through additional development and create more opportunities for the people of Columbus, Bartholomew County and surrounding areas to spend time in and enjoy the various venues present in this redeveloped district. The Act permits the Indiana Alcohol and Tobacco Commission to issue liquor licenses (one, two and three-way)within the District, above the normal number granted to Columbus. The CRC believes that granting additional three-way liquor licenses within the District will enable the creation of new food and beverage businesses which will create economic opportunities in the area and will lengthen the useful life of the downtown district into the evening hours. The lack of availability of such licenses is considered to be a barrier to development. The Act allows the ATC to grant an unlimited number of licenses within the district, subject to limitations set by the locality. Additionally, the Act proscribes that no local fees or assessments may be added to those set by the ATC. The application process for a license within the district is the same set forth for licenses elsewhere in the community with the additional requirement that a recommendation from the community be provided to the ATC prior to their granting of the license. The authority for this recommendation is to be determined locally. Purposes and Goals The City, through implementation of the Act, this Policy and of the Riverfront Development District, seeks to achieve the following: 1_ Enhance Columbus'regional appeal by encouraging the location and operation of a diverse mix of restaurants and entertainment venues in the riverfront district. 2. Removes a significant barrier to Downtown development. 3. Provide an experience that encourages repeat visits by residents and visitors 4. Assist in reinforcing the existing physical fabric of Downtown to create a sense of place and gathering areas. 5. Provide opportunity for economic development, increase the tax base and create jobs. Mocurnents and SettingAbsuilivanUzeal SettinpUemporary Internet FileSSC001enLOutloO$ki 320WMI)MAmended Local GuicicHnes (modified clean 1 130 i0)TPCTiM0THYFl501150100J30C Page 1 of 3 Columbus Redevelopment Commission DISTRICT REQUIREMENTS 'I. The District will be geographically defined to conform to the requirements of the Act and as shown in Attachment A. 2. The District shall allow for the granting of(ten)10 three-way Riverfront Development District licenses. The Columbus City Council will have the authority to grant additional licenses within the District by Resolution. 3. Permits are not transferable, not portable within or without the district and any renewal is subject to compliance with the terms of these local rules and any agreement negotiated with the Redevelopment Commission. The permits shall not be pledged as collateral or subject to any lien,Judgment,property settlement agreement, or third party claim. 4. Applicants receiving three-way licenses within the District will be required to sell a minimum of$150,000 in gross food sales annually. As part of the yearly license renewal, applicants will have to demonstrate that this requirement has been met at the location for which the license has been granted. 5. The applicant will comply with local application procedures as well as those required by the State of Indiana and the ATC. CRITERIA And (FACTORS; The recommendation of the CRC will be based on the following general criteria:k 1. Granting of the license will benefit the purposes of the district. 2. Granting of the license and the business activity will not be detrimental to the property values and business interest of others in the district. Additionally, the CRC will consider several other factors including but not limited to the following in making a recommendation: The Commission will consider: 1. the Applicant's plans to improve the facility In which they will operate and the consistency of such plans with the nature and architecture of the riverfront area, 2. the restaurant's ability to draw people to Columbus and, specifically, the riverfront area, and 3. the number and nature of the jobs added to or retained in the Columbus employment base. 4. the restaurant focus on a dining and entertainment experience rather than an alcohol consumption experience. 5. financial and ownership strength, which may best be demonstrated by a business plan, B. history of operation, 7. reputation in the Columbus community and, if from other than Columbus, the Applicant's reputation in other communities, C:1Documants and S,ettingslbsuilivanll.acal SettingslTemgowy Internet FIIeslContcnt.Out€nokII52DWMDRIAn ded Local Guidelines (modified clean 113010FPCTIMOTHY13I5011501OO.Doc Page 2 of 3 Append X A rIF01 Columbus Redevelopment o t ft�cifc� c Commission 8. the control and participation of the owners of the Applicant in the day to day operation of the business, 9. the location of the restaurant, 10.the size, floor plan, and layout of the restaurant and exterior dining areas, if any, 11. any physical improvements to the restaurant, and 12.the expected timetable for work and business commencement. Application;procedure. The application process is as follows: 1. Applicant will complete a Riverfront License application and submit to the Executive Director of the Columbus Redevelopment Commission. 2. The Executive Director of the RC will schedule a meeting of the License review Committee. The committee will be comprised of two members of the RC and the Executive Director of the RC. The Applicant, or their representative is required to attend this meeting. The Committee's action will be in the form of a recommendation to the full Redevelopment Commission for either approval, rejection or continuance. 3. The CRC will make a recommendation for either approval or rejection of the license application to the Mayor. 4. The Mayor will review the CRC recommendation and make a determination for approval or rejection that will be forwarded to the ATC. This recommendation is a required part of the applicant's application to the ATC. It is understood that the ATC will not take action on a three-way Riverfront District License without this letter of recommendation. S. Within 18O days of the RC recommending approval of the application, the applicant shall obtain a permit from the Indiana Alcohol& Tobacco Commission ("Application Period"). In the event that the applicant fails, or it appears the applicant will fail, to obtain a permit within the Application Period, the applicant may request additional time from the RC to obtain a permit. Should the applicant request additional time to obtain a permit from the RC, the applicant shall, in writing, and as part of the applicant's request: (1) provide just cause as to why the applicant has failed or seemingly failed to obtain a permit within the Application Period, and (2) make its request for additional time to obtain a permit prior to the expiration of the Application Period. Other Considerations: Please outline any other factors which may aid the Redevelopment Commission in the consideration your application. C:lDocumetns and Spdnglbsullivanll. and SettingsN'emporary Imernet 1'ileAC0n1cnt.0utlook\152DW&IMArnended Local Guidelines (modified clean 1130 10)TP UMOT'HYPI501 I50100.DOC Page 3 of 3 E Highland, Indiana Riverfront Development District Restaurant Application (8-4-09) Overview Ordinance No. 1400 of the Town of Highland, Indiana, adopted on July 14,2008, by the Town Council approved the designation of the Riverfront Development District. This District will allow for the "issuance of specified, non-transferable permits to sell alcoholic beverages for on-premises consumption in a restaurant on land or in a historic river vessel within a municipal rverfront development project funded in part with state and town money(IC 7.1-3-20-15)". This application with a letter of approval by the Town Council will be needed by the applicant in his/her pursuit of a special liquor license issued by the Indiana Alcohol and Tobacco Commission(ATC). The Town Council has designated the Highland Redevelopment Commission as the body to review and recommend businesses to the Town Council who meet the objectives and criteria of the program. The purpose of the special liquor license is to encourage the location and operation of unique and/or upscale restaurants in the Redevelopment Area. In addition, the town would like to assist small business owners who, in turn,wish to invest and participate in the community. Procedure (For further information on the procedure, please refer to Highland Ordinance No. 1433) A. The applicant will meet with the Redevelopment Director to review the application requirements and receive a copy of the"Restaurant Application",which includes the Indiana State.forms,_"Application for New or Transfer Permit"and"Property Tax Clearance Schedule", and a letter to the Office of the lake County Surveyor requesting verification of the Highland location. R. Once the applicant completes the Restaurant Application, Including the Application for New or Transfer Permit, he/she will meet with the Director to review the content and completeness of the application and place the applicant on the Redevelopment Commission's public meeting agenda. C. If the Redevelopment Commission supports the application,the applicant will appear before the Highland Town Council who will review and consider approval of the application within ninety days. if approved,a letter will be generated that will: 1. --provide the applicant with Town Council approval 2. --designate the potential location of the restaurant on an aerial map 3. —outline the Riverfront Development District (RDD)boundary 4. --provide proof of local contribution to the area;and 5. —provide the Indiana Alcohol and Tobacco Commission's letter of approval for the RDD boundary 1 D. If the Redevelopment Commission does not give a favorable recommendation,then the Town Council may adopt or reject the application. If the Town Council approves,then the applicant shall then transmit the application and necessary materials to the Indiana Alcohol and Tobacco Commission for its action. E. If the Town Council rejects the application or fails to act on it within ninety days,it is denied and rejected. F. If an application is denied and rejected by the Town Council, an applicant may reapply no sooner than 240 days following the rejection or denial. The Redevelopment Commission may waive this provision by an affirmative vote of two-thirds of the entire membership. G. If approved by the Town Council through item C or item D above,the applicant must obtain the following verifications from Lake County Offices and submit these with the application to the Indiana Alcohol and Tobacco Commission: 1. --Verification from the County Surveyor's office that the location of the proposed restaurant is within the town limits. See form letter to the Surveyor's Office attached to the Restaurant Application. 2. --Verification that there are no back taxes due on the property by taking the Property Tax Clearance Schedule,which is attached to the Restaurant Application,to the County Treasurer's office for completion. H. if approved by the Town Council through item C or item D above,the applicant will send the following to Ms. Kirby at the Indiana Alcohol and Tobacco Commission(ATC), 302 West Washington Street, Room E114, Indianapolis,IN 46204: 1. The "Application for New or Transfer Permit" 2. The Highland Town Council's letter 3. The County Verification of Location within the Town of Highland 4. The"Property Tax Clearance Schedule" 5. A check for$1000 for the liquor license 6. A check for$2 for a sign to be placed in the window of the restaurant I. if the packet is deemed complete, it will be reviewed by the Commissioner in charge of the Riverfront Development District at the ATC,currently Mr.Guthrie. If the Commissioner states that the packet is complete, a hearing date will be set up by Ms. Kirby at the Local County Alcohol Board located at the Crown Point Civic Center Auditorium. The Local Alcohol Board meets the first Thursday of the month at 9:00 am. J. If the Local Alcohol Board approves,the Indiana State Excise Police will visit the location and perform a walk through. If they approve,then the application goes before the Indiana Alcohol and Tobacco Commission for final approval. This can take 90 to 120 days. (Ali renewals need to be filed 75 days before the license expires. Renewals are required after the first year and then every other year unless there is a violation). 2 K. If not approved by the ATC,then the applicant may appeal. Please contact Ms. Chew at 317- 733-3940 to begin that process. Required Information The Redevelopment Commission and the Town Council will be requesting the following information from the applicant in order to obtain a complete understanding of the proposed restaurant: 1. Complete the Indiana State form entitled"Application for New or Transfer Permit"which is attached to this application. 7. In addition to a floor plan required in Step 7 of the Indiana form, please state any plans you have to improve the facility in which you will operate and the expected timetable for work and business commencement. 3. Provide information on the number of jobs this restaurant will add to or be retained within Highland. 4. Explain any past restaurant experience you have had,your business plan,or other means by which the Commission and Council will be able to obtain information on your preparedness for this venture. S. Explain how you will attract diners to your restaurant, how you will jointly market your restaurant with other restaurants in the District,and how you will work with the community. b. Explain the upscale nature of the restaurant and/or the unique features of the proposed restaurant. 7. Explain any other factors that will aid the Commission in evaluating your application. 3 APPLfCATfON FOR NEW OR TRANSFER PERMIT r State Form(TSA) INSTRUCTIONS:i. Type or print legibly. 2. Submit in duplicate. Include paymant S. Do not complete shadedareas. 4. Mall to the address at the and of this application Corm. S. if there Is no opening for this applied permit or there is an omission,thls application will be returned This Permit Type wld allow you to sail? This permit Type is for? Application type? ❑ Beer ❑ On-premise consumption(Retailer) ❑ New application ❑ Wine ❑ Oft-premise consumption(Dealer) ❑ Transfer owner ❑ Liquor ❑ Other(Specify Below) ❑ Transfer locafon ❑ Transfer stock Please briefly describe your business that qualifies you for this permi(type Permit number(Required for transfers) This ownership entity Is:(Check one) ❑ Sale Owner ❑ Limited Partnership ❑ Municipality ❑ Simple Partnership ❑ Limited Liability Partnership ❑ Club Association ❑ Corporation ❑ Limited Liability Company ❑ Club Corporation Business entity mwdng this application Business telephone number Doing business as(D&1) Location where alcoholic beverages will be dispensed(nwnbar and street) Premise telephone number CRY 1 Town State ZlP code Indiana retall merchanrs certificate number Horne telephone number(including area code) Email address General Quastlons Pant 1 1. The proposed premise is located in what county? 2. Is the proposed permit premise located inside the corporate limits of a city I town? D Yes ❑ No 3. If yes,please name the incorporated city I town. 4, If no,please name the unincorporated community which has been known by that name for more than ten years.(This Is only required for a beer or a beer and wine application.) 3. Is there at least 240 feet between this premise and any church or school? ❑ Yes ❑ No if no mall receptacle at this location aryou wish to have your correspondence sent to another address: Name Address City,State,Zip General Questions Part 2 1. Do you understand that you must apply for a Federal ID number? ❑ Yes ❑ No 2. Do you understand that you must apply for a Federal Stamp from the Bureau of Alcohol,Tobacco, and Flrearrns(BATF)? ❑ Yes ❑ No 3. Does the permittee have an interest In any distiller,vintner,farm winery,rectifier,brewer,primary source of supply,or wholesaler permit? ❑ Yes ❑ No 4. As owner do you manage the premise? © Yes ❑ No If no,please complete ft Manager's.Questionnaire and attach It to this application. 5. Do you sell tobacco products? ❑ Yes ❑ No 8. Do you know that an Excise Officer may enter,inspect,and search your permit premise without a warrant or other process to determine if you are complying with the provisions of the Indiana alcoholic beverage laws f rules? ❑ Yes ❑]No 7. Do you have the right to possess(lent;lease,mortgage.or own)the permit promise for the term ofthe permit? ❑ Yes ❑ Complete Name Sodat Security Number DOS Citizen of US ❑Yes ❑No Address(number and sheet d(,stale,ZIP) Nature of Interest Percent of ownership ❑Sole Owner ❑Corporate President ❑Stockholder ❑Partner ❑.Corporate Secretary ❑Club Officer Complete Name Social Security Number DOB Citizen of U3 ❑Yes ❑No Address(number andstredt,dty,slate,ZIP) Nature of interest Percent of ownership ❑Sole Owner ❑Corporate President ❑Stockholder ❑Partner ❑Corporate Secretary ❑Club Officer Complete Name Social Security Number 008 Citizen of US ❑Yes ❑No Address(numberandstreet dly,stale,ZIP) Nature of Interest Percent of ownership ❑Sole Owner ❑Corporate President ❑Stockholder ❑Partner ❑Corporate secretary ❑Club Officer Complete Name Sodal Security Number DOS Citizen of US ❑Yes ❑No Address(number andshedt dly,state,ZIP) Nature of interest Percent of ownerstttp []Sole Owner ❑Corporate President ❑Stockholder ❑Partner Corporate-Secretary ❑Club Officer If you need more space,please attach additional sheets. You must meet specific requfrements to hold certain types of permits. Please answer only the following questions that are applicable to your permit application. LIQUOR RETAILER ❑Yes ❑No is the proposed permit premise located in an Incorporated city having a population of less than 5,000? Q Yes ❑No If the answer Is yes,have you attached to the application the enabling ordinance from the city consenting to the issuance of liquor retailer's permits? CATERING HALL ❑ Yes []No Are you applying for a special three-way catering hail permit that will allow you to sell alcoholic beverages for on-premise consumption only on a premise that is used only for private catered events and has accommodations for at least 250 Individuals? CLUBS [I Social Club ❑ Fraternal Club If you are applying for a club permit,please check the appropriate box- 0 Yes ❑No If a social club,does your association or organization meet the general requirements of IC 7.1-3-20-1? (] Yes[]No If your club permit premise is outside the corporate limits,do you meet the requirements of 4C 7.1-3-20-37 HOTEL ❑ Yes[]No , p you are applying as a hotel,do you meet the general requirements of IC 7.1-3-20-18? HISTORIC DISTRICT ❑ Yes❑No If you are applying for historic district permit,Is the restaurant located in a facility that Is on the National Register of Historic Places or is it located within the boundaries of a historic district established by ordinance? If yes,you must submit the appropriate verification. AIRPORT,REDEVELOPMENT:1tIVERFRONT,RAILWAY STATION,CULTURAL CENTER Yes❑No If you are applying for a permit authorized by IC 7.1-3-20-16,do you meet the requirements fbr the designated permit? Specify the type of permit you are applying for NOTE. if you are applying for a municipal riverfront development permit you mast also submit a latter indicating that the statutory requirements have been met and the mayor's approval of the permit. ""FOIL EXISTING BUSINESSES ONLY" PAqulred for the following permits:Type 208(except golf courses);All retail permit with less than 90%ownership by Indiana residents;Retail permits with limited bar/ f*im"y room sepan Lion. Date of beginning repot(month,day,year) Date of ending report(month,day,year) Gross food sales(excluding all carryout and catering sales) Gross alcoholic beverage sales Total grass food and beverage sales id Y SOLE OWNER I PARTNERSHIP PERMIT: if applying as a sofa owner or partnership for any type of permit,answer the following questions: ❑Yes ❑No Are you now and have you been a continuous and bona fide resident of this state for five(5)years? CORPORATION PERMIT. (PLEASEATTACH COPY OF'CERTIFICATE OFEWSTENCE'FROM THE INDIANA SECRETARY OF STATE) If applying as a corporation for any type permit,answer the following questions: ❑Yes ONO Is at least 60%of the outstanding common stock owned by persons who have been continuous and bona aide residents of this State for Ave(5)years? (For exceptions,see IC 7,1-3-21-6.) ❑Yes ONO If you are a corporate wholesaler,Is at least one.(1)of the stockholders a resident of the county in which the licensed premise Is situated for at least one(1)year immediately prior to making application for the permit? ❑Yes ❑No Is the applicant a retailer corporation with 41%or more of the common stock held by out of state stockholders? (!f the answeris yes,you must agree to and initial below) I hereby affirm that the annual gross food sales at the permit location currently exceed One Hundred'Thousand Dollars($100,000)or In the case of a new applicant are expected to exceed Two Hundred Thousand Dollars($200,000)by the end of the two year period commencing on the date of Issuance of the permit will,thereafter,exceed One Hundred Thousand Dollars($100,000)per annum, LLC I LLP PERMIT:(PLEASE ATTACH COPY OF CERTIFICATE OF E)OSTENCE'FROM THE INDIANA SECRETARY OF STATE) If applying as a limited partnership,limited liability company,or frosted liability partnership for any type permit,answer the following questions: ❑Yes ❑No Is at least 60%of the ownership Interest held by persons who have been continuous and bona fide residents of this State for five(5)years? (For exceptions,see IC 7.1-3-21-8.) If a limited partnership,fimited liability company,or limited liability partnership wholesaler,at least one(1)of the stockholders must have been a resident of the county in which the licensed premise is situated for at least one(1)year immediately prior to making application for the permit. ❑Yes ❑No Is the applicant a retailer limited partnership,limited liability company or Ilmited liability partnership applying with 41%or more of the ownership interest held by out of state residents? (If the answeris yes,you must agree to and initial the statement below.) i hereby affirm that the.annual gross food sales at the permit location currently exceed One Hundred Thousand Dollars($100,000)or in the case the case must have of a new applicant are expected to exceed Two Hundred.Thousand Dollars($200,000)by the end of the Iwo year period commencing on the date of issuance of the permit will,thereafter,exceed One Hundred Thousand Dollars($100,000)per annum. THE FOLLOWING QUESTIONS PERTAIN TO ALL INDIVIDUALS HAVING AN INTEREST IN THIS APPLICATION. ❑Yes [:]No Have any Individuals with an interest in this permit been convicted of a felony or a misdemeanor? (If yes,please attach fetter with dates, court,conviction,and sentence of new conviction. ❑Yes []No Have any individuals with an interest in this application ever been convicted of a violation of the Indiana Alcoholic Beverage laws,rules, regulations,or orders of the Commission? ❑Yes [:]No Are all individuals with an Interest In this application citizens of the United States? ❑Yes [:]No Are all individuals with an interest In this application of sound mind,good moral character,and good repute in the community In which they reside? ❑Yes ❑No Are any Individuals with an interest In this application a law enforcement officer,or an officer of a municipal corporation,or government subdivision,or of this state cha ed with any duty or function in the enforcement of this title? ❑Yes [:]No Have any individuals with an Interest in this application held a pemiit under this title and has the permit been revoked within one year prior to the date of this application? ❑Yes []No Have any Individuals with an interest in this application made an application for a permit of any type which has been denied less than one yea prior to this application fora permit? unless the application was deniued by reason of procedural or technical defect. ❑Yes ❑No Do any individuals with an interest in this application hold any other permit of any kind connected with the sate of alcoholic beverages,or do they have any interest in any such permit directly or indirectly,through ownership of stock or otherwise? If yes,list permit numbers below: Permit numbers Are you indebted to a person or an officer or agent of that person,who holds a brewer's permit or wholesale permit,for a debt,secured Iiy a ®Yes ❑No lien,mortgage,or otherwise upon the premises for which the beer retailers permit is to be applicable or upon any of the property or fixtures in the premises,or used,or to be used in connection with the premises? DRUG STORE ❑ Yes 0 No if you are the proprietor of a drug store,do you hold a valid permit issued by the State Board of Pharmacy? tifOTE., You must designate an your floorplan the pharmacy area that has been submitted and approved by the State Board of Pharmacy" Pharmacy Permit Number Issuance Date E_xpiraEion Date RIVERBOAT ❑ Yes❑No Are you applying for a riverboat 1 excursion permit and do you currently hold a valid riverboat owner's license issued by the Indiana Gaming Commission? Riverboat Owner's License Number issuance Date t xplratlon Date ❑ Yes ❑No Are you applying for an adjacent tandsite permit? HORSE TRACK ❑ Yes ❑No Are you applying for a horse track permit and do you currently hold a valid recognized meeting permit issued by the Indiana Gaming Commission? Recognized Meeting Permit Number Issuance Date Expin3tinn Date ❑ Yes❑No Are you applying for a satellite permit? 5ateliite Facility License Issuance Elate icx;A 'on Date BOAT(SEASONAL) El Yes❑No" *if you are appiying for a boat permit,do you engage in regular passeriger seivice which makes regular runs in'seasdnal weather between established locations? BEER WHOLESALER ❑ Yes❑No Do you have available for investment capital and cash or property necessary and useful in your business,exclusively as a beer wholesaler,of at least$15,000(exclusive of motor vehicles),and do you agree that you will,if the application is granted,actually make the investment and submit proof to the Commission before you engage in business as a beer wholesaler? BREWER ❑ Yes ❑No I certify that the projected number of barrels of beer to be manufactured during the permit year will not exceed 20,000 barrels.(A barrel equals 31 gafforis.)(Small Brewer) ❑Yes❑No I certify that the projected number of barrels of beer to be manufactured during the permit year will exceed 20,000 barrels,(A barrel equals 31 gallons.)(Brewer) WINERY Check if you qualify,and are applying for one of the following permlts: ❑Vintner(IC 7.1-3-12-1) ❑Farm Winery(IC 7.1-3-12-3) Farm Winery Brandy Distiller(IC 7.1-3-7.5-2) BOND REQUIREMENTS The following applicants are required to file with this application the appropriate non-revocable surety bond,made payable to the State of Indiana. Check the appropriate bond amount if applicable: [:]Brewer($10,000) ❑Distitiar($10,000) []Liquor Wholesaler($10.000) 0 Rectifier($15,000) ❑vintner(excludes farm winery)($1,000) Name of manager¢ast first middle initial) Social sec u4ly Number ATC Employee permit number Expiration date Age Isex Data of birth Height Weight El Mafe El Female Home address(numberand street) 04,state,zip Are you a citizen of the united States? ❑ Yes ❑ No Are you at least twenty-one(21)years old? ❑ Yes ❑ No Is it true that you are not an officer or employee of a person engaged in the alcoholic beverage traffic,which person Is a non-resident of this state,or is engaged In carrying on any phase of manufacture of,traffic in,or transportation of alcoholic beverages without a ❑ Yes ❑ No permit when one Is required? Are you a State law enforcement officer,or a non-elected officer of;municipal corporation or government subdivision charged with ❑ Yes ❑ No any duty or function In the enforcement of Alcoholic Beverage Laws. Has your alcoholic beverage permit been revoked,within one year prior to the date of thts application for a permit? ❑ Yes ❑ No Have you made an application for a permit of any type which has been denied less than one year prior to this application for a permit? (Unless the application was denied by a reason of a procedural or technical defect.) ❑ Yes ❑ No Are you now,and have you been for the last fire years a continuous and bona fide resident of the State of Indiana? If no,does the ❑ Yes ❑ No permit premise you are managing have a minimum annual gross food sales ofat least$100,0007 Do you hold any other permit of any kind for the sale of alcoholic beverages in Indiana,or do you have any interest in any such permit, Yes ❑ No directly or indirectly,through ownership of stock or otherwise?.If yes.,explain below: Have you been convicted of a felony? N yes,attach places and dates of arrest,court of record,and conviction and attach relevant ❑ Yes ❑ No court record. Have you been convicted of a violation of the Indiana Alcoholic Beverage Laws,rules,regulations,or orders of the Commission? If Yes [] No yes,explain on a separate attachment Signatures or manager or agent(s)referred to in this schedule WSTRUCTWNS: Applicant must submit four(4)drawings on letter size paper(812'x 117. These drawings must show dimensions and identiScations of any existing family room(s),seating afrangement(s),bafiroom(s),service bar(s),dance floor area(s),kitchen area(s),restrooms,storage and office areas,exits,and alcoholic beverage display areas for all types of permits. Please sign and date each drawing. ❑Yes ❑No If a restaurant or a restaurant located In a hotel or motel,will anyone under the age of 21 be guests to the permit premise? tithe answer to the above question Is'yes,'it should be understood that there must be COMPLETE SEPARATION ofthe barroom from the room or rooms where Individuals under the age of 21 will be present ❑Yes ❑No Are you requesting approval for limited separation? NOTE. ALL DRAWINGS MUST BE'APPROVED BY THE COMMISSION BEFORE THE PERMIT IS ISSUED. WE RECOMMEND YOU RECEIVE APPROVAL BEFORE CONSTRUCTION BEGINS. CONTACT YOUR LOCAL EXCISE DISTRICT OFFICE. tPisase attach all drawinas to this anoticalionl Name of applicant(individual,corporat(on;partnership,I LC,LLP) I certify that this application was completed by myself or by the preparer Identified herein. 1 certify that all information provided herein and on any attachments are true and correct, I UNDERSTAND THAT IT IS A FELONY TO MISREPRESENT OR FALSIFY ANY PORTION OF THIS APPLICATION OR ATTACHED DOCUMENTS. i hereby consent for the duration of the permit term to Inspection and search by an enforcement officer,without a warrant or other process,of my licensed premise and vehicles to determine compliance with the provisions of I.C.7.1. Printed name and title of applicant Signature Date NOTE.The applicant MUSTslgn this application unless Me proper Power of Attomey forms are attached to this application. I certify that I have examined this application and the accompanying documents,and to the best of my knowledge and belief,they are true,correct,and complete. Signature of preparer Telephone number(indudFng area ride} Date 1. Please rent business,ceriihed checks,or money order-appficalion wail not be processed without payment MAIL TO: One-way(beer only)= $500 Two-way(beer&wine only)= $750 INDIANA ALCOHOL&T013ACCO COMMISSION Three-way(beer,wine,&liquor) $1,000 302 W.Washington Street,Room El 14 Except Fraternal Clubs= $250 Indianapolis,IN 46204 Catering= $156 (317)232-2430 Transfer of Permit" $250 Each transfer type http:www.state.in.us/atc w � a a � � Y Q c V G rL W tl L to p �m Al (.n go r �; z jr€ D u�&7 ❑©L7 ©© g g ©o❑ ©0 �j❑ 0Wo0 m fi € E ° A s n a 8 r,=L g � s � o io a O •1y � � T p � O U U IL) V 0. R L m L L$ Z e L Z r► C CL n ao U :30 So 003 � 0© a lu 0 Cl) H Cc 9 0 � M V m Z O m y o Z z m V Of m O �+ �0 C ,1 Vc •- � Vc a � Ez $ms Wm � F• m �m° o @ © � �❑ CL C ag N m ro a _ e R $ a s s � U O A U N � � U ❑ 6 U N Redevelopment Commission TOWN OF HIGHLAND 3333 Ridge Road A Highland,Indiana 4 219-972-7595 4 fax 219-972-5097 Office of the Lake County Surveyor Lake County Government Center 2293 North Main Street Crown Point,Indiana 46307 Dear Sirs, Please verify that the following proposed restaurant to be located within the Town of Highland's Riverfront Development District is indeed located within the municipal borders of the Town of Highland. Address of the proposed restaurant Name of proposed restaurant Name of Applicant Address of Applicant Email of Applicant . Telephone Number of Applicant VERIFICATION BY THE LAKE COUNTY SURVEYOR'S OFFICE I, verify that the above location is within the municipal boundaries of the town of Highland, Indiana, on this date Kokomo Redevelopment Commission - Local Guidelines - City of Kokomo Indiana - Ko... Page 1 of 3 111312009 2:24:00 PM Kokomo Redevelopment Commission - Local Guidelines Kokomo Redevelopment Commission Local Guidelines RIVERFRONT ALCOHOL BEVERAGE LICENSE Objectives and Criteria for License Allocation The Indiana state legislature enacted T.C. 7.1-3-20 et, seq.(Act).The Act permits the Indiana Alcohol and Tobacco Commission (RTC)to issue liquor licenses in the Kokomo Riverfront Redevelopment District.The Kokomo Redevelopment Commission(KRC)will recommend to the Mayor of the City of Kokomo("Mayor") applications for liquor licenses the KRC believes will strengthen the economic vitality of the riverfront district,. Background The KRC has determined that the creation of a Riverfront Development District, under T.C. 7.1-3-30 et.seq(Act)will help further the aims of the KRC by removing barriers to development#n the downtown district. Through the creation of this district,the KRC will be able to attract additional development opportunities to the district,expand the tax base through additional development and create more opportunities for the people of Kokomo, Howard County and surrounding areas to spend time in and enjoy the various venues present in this redeveloped district. The Act permits the Indiana Alcohol and Tobacco Commission to issue liquor licenses(one,two and three-way)within the District, above the normal number granted to Kokomo.The KRC believes that granting additional three-way liquor licenses within the District will enable the creation of new food and beverage businesses which will create economic opportunities in the area and will lengthen the useful life of the downtown district into the evening hours.The lack of availability of such licenses is considered to be a barrier to development. The Act allows the ATC to grant an unlimited number of iicenses within the district, subject to limitations set by the locality.Additionally, the Act proscribes that no local fees or assessments may be added to those set by the ATC.The application process for a license wltNn the district is the same set forth for licenses elsewhere in the community. Purposes and Goals The City,through implementation of the Act,this Policy and of the Riverfront Development District, seeks to achieve the following: 1. Enhance Kokomo's regional appeal by encouraging the location and operation of a diverse mix of restaurants and entertainment venues In the riverfront district. 2. Remove a significant barrier to Downtown development. 3. Provide an experience that encourages repeat visits by residents and visitors 4. Assist in reinforcing the existing physical fabric of Downtown to create a sense of place and gathering areas. S. Provide opportunity for economic development, increase the tax base and create jobs. DISTRICT REQUIREMENTS 1. The District will be geographically defined to conform to the requirements of the Act and as shown in Attachment A. 2.The District shall allow for the granting of three-way Riverfront Development District licenses. 3. Permits are not transferable, not portable within or without the http://www.cityofkokomo.org/main.asp?SectionlD=10&SubSectionlD=101&ArticlelD=124 3/21/2012 Kokomo Redevelopment Commission- LocaI Guidelines - City of Kokomo Indiana - Ko... Page 2 of 3 district and any renewal is subject to compliance with the terms of these local rules and any agreement negotiated with the Redevelopment Commission.The permits shall not be pledged as collateral or subject to any lien,judgment,property settlement agreement,or third party claim. 4.Applicants receiving three-way licenses within the District will be required to sell a minimum of$150,000 in gross food sales annually.As part of the yearly license renewal, applicants will have to demonstrate that this requirement has been met at the location for which the license has been granted. 5.The applicant will comply with local application procedures as well as those required by the State of Indiana and the ATC. 6.Applicants will be full paying member of the Riverfront Dining Marketing Fund, when it is established;the dues for which shall not exceed$200 per month for each restaurant after November 1, 2009. Membership will also be available to other businesses on a voluntary basis. 7. The restaurant must comply with all building, health, zoning laws, ordinances and all rules and regulations of the ATC.The restaurant shall also comply with any architectural standards established for the riverfront area. S.The restaurant must submit a letter for the Plan Commission's approval to confirm zoning of the building and its compatibility with the use the Applicant is proposing. 9.The restaurant is responsible for all outside cleaning, maintenance, and debris pick up,which includes cigarettes and snow removal of surrounding area and public walkways. 10.The applicant shall maintain and shall submit proof of general liability insurance,including dram shop insurance and workers compensation insurance acceptable to the Redevelopment Commission. 11.The applicant wifl enter into a written commitment with the City to comply with these Local Rules and any conditions that the City places on the restaurant which shall include applicant's agreement to resolve any dispute to enforce the terms of same by arbitration. CRITERIA and FACTORS: The recommendation of the KRC will be based on the following general criteria: 1. Granting of the license will benefit the purposes of the district. 2. Granting of the license and the business activity will not be detrimental to the property values and business interest of others in the district. Additionally, the KRC will consider several other factors including but not limited to the following in making a recommendation. The Commission wilt consider: 1.The Applicant's plans to improve the facility in which they will operate and the consistency of such plans with the nature and architecture of the riverfront area 2.The restaurant's ability to draw people to Kokomo and,specifically,the riverfront area,and 3.The number and nature of the jobs added to or retained in the Kokomo employment base 4. The focus of the restaurant to provide a dining and entertainment experience rather than an alcohol consumption experience. 5. Experience operating a restaurant similar to that proposed 6.The nature of the restaurant and Its proposed menu 7.The unique features of the proposed restaurant http://www cityofkokomo.org/main.asp?SectionID=10&SubSectionlD=101&ArticleID=124 3/21/2012 Kokomo Redevelopment Commission - Local Guidelines - City of Kokomo Indiana- Ko... Page 3 of 3 B. f=inancial and ownership strength,which may best be demonstrated by a business plan, 9. History of operation, 10. Reputation in the Kokomo community and, if from other than Kokomo, the Applicant's Reputation in other communities, 11.The control and participation of the owners of the Applicant in the day to day operation of the business, 12.The location of the restaurant, 13.The size,floor plan,and layout of the restaurant and exterior dining areas, if any, 14. Any physical improvements to the restaurant, and 15. The expected timetable for work and business commencement. 16. The applicant's commitment to the riverfront area and the Kokomo community in general 17. The Impact of the business on the riverfront and Kokomo in general Application procedure. The application process is as follows: I.The Applicant will meet with the Executive Director of the Kokomo Redevelopment Commission which is also the City of Kokomo Director of Development,to review the Application requirements and the proposed location. All communications concerning the application shall be made through the Executive Director of the KRC. No direct communication will be made by the applicant or others to any Committee or Commission members concerning the application. 2. Applicant will complete a Riverfront License application and submit to the Executive Director of the Kokomo Redevelopment Commission. 3. The Executive Director of the KRC will schedule a meeting of the License review Committee.The committee will be comprised of two members of the KRC and the Executive Director of the KRC.The Applicant, or their representative is required to attend this meeting.The Committee's action will be in the form of a recommendation to the full Redevelopment Commission for either approval, rejection or continuance. 4.The KRC will make a recommendation for either approval or rejection of the license application to the Mayor. 5.The Mayor will review the KRC recommendation and make a determination for approval or rejection that will be forwarded to the ATC. This recommendation is a required part of the applicant's application to the ATC. It is understood that the ATC will not take action on a three-way Riverfront District License without this letter of recommendation. Other Considerations: Please outline any other factors which may aid the Redevelopment Commission in the consideration your application. Please submit inquiries to: Debra Cook, Executive Director of the KRC 100 S. Union St. Kokomo, IN 46901 765-456-7375 dcook @dtyofkokomo.org http://www.cityofkokomo.org/main.asp?SectionID=10&SubSectionlD=101&ArticleID=124 3/21/2012 Welcome to Our Website I Madison Riverfront Development Page 1 of 1 Madison Riverfront Development Madison �'e° Home ! History Buy a Brick I Cameras Links Members River Levels Facebook Search Donors Welcome To Our Website Enter keyword.,., Search €NTERACTIVE FLOOD SCULPTURE COMPETITION ANNOUNCED Navigation Many river towns have poles or walls with high water marks to remind folks of historic floods. The City of Madison and the Riverfront Development Corporation hope to present the history of the Ohio River flooding at Madison in a different Bridge Cameras manner. They are faunching a competition for artists and engineers to design a piece of interactive sculpture that wig€ ..............................._.,_..-_._____..-.,..,..,.,.........,........ .,. Buy a Brick allow young and old alike to experience the height of the Rood waters, The highest recorded flood is the 72.7 ft, in a ............................................................. 1937, The most recent April, 2011 flood was 49.3 ft. `We don't know how artists will depict the flooding but we are Committee Members open to fresh ideas,"said Louann Waller of the Riverfront Development Corporation. "The final design chosen will be something that people can ride or touch or climb. It will be fun and unique, something people will enjoy for Historyo►Committee generations." Collaboration between artists and engineers is encouraged. Public safety, durability and low River Levels maintenance are all important. Materials must be able to withstand heat,cold, rain, snow,occasional flooding and be ..................................................................... resistant to vandalism. Visit our Facebook Page The City's Bicentennial Fund and a recent grant from the Community Foundation of Madison and Jefferson County are providing $1000 to each of three finalists to build working models of their designs. The models will be on display Committee Members throughout Madison's 2012 festival season for input from the public. The selected design's permanent installation is planned for the corner of West Street and Vaughn Drive.This is the first piece of public art to come from suggestions for Archive Login the Bicentennial Legacy gift. ............................_,_......,..,.......,....,.._..._,..,_ Entry forms and guidelines are available at city hall,or on line at www.madisonriverfront.com.Designs are due February Calendar Login 1,2012• ""'"""".....'" For more information contact: Louann Waller, City Plan Commission, City of Madison (812) 265-8324 or Email Login madisonpc @madison-in.gov. _..........................................,....,.............._......,...._............. Website Login ENTRY FORM Lying along the banks of the Ohio River,Madison,Indiana enjoys a rich history as a river city. In order to preserve and enhance its relationship with the Ohio,the City of Madison worked with the Corps of Engineers and GEC planners to User Login establish a program and master plan for the riverfront area of the city.The study addressed commercial,residential,and recreational resources and suggested a mix of these elements that would revitalize an underutilized riverfront. The 0ser Nama II Mverfront Development Project is a work in progress,and will be continuing as an ongoing project through design and building,and ongoing maintenance and upkeep.We are proud of our riverfront and want to showcase this project as one of many advantages that the City has to offer. Our web site's main goals are to allow looking up of donors to the Request new password Riverfront,and to be able to donate online.Your donation includes an engraved piece that wilt improve the Riverfront.In addition to buying a brick,we accept donations for other items,such as lamp posts,benches and overlooks,just to name LOGIN a few.Please use our contact form to inquire about other items for donation,or cat!Madison City Hall at 812-265-8324 for more information.Thank you for your support! http://madisonriverfront.com/ 3/21/2012 RESOLUTION NO. A RESOLUTION OF THE COMMON COUNCIL OF THE CITY OF SOUTH BEND,INDIANA, APPROVING AN ORDER OF THE ST, JOSEPH COUNTY AREA PLAN COMMISSION APPROVING A CERTAIN DECLARATORY RESOLUTION AND AN AMENDMENT TO THE SOUTH BEND CENTRAL DEVELOPMENT AREA DEVELOPMENT PLAN ADOPTED BY THE SOUTH BEND REDEVELOPMENT COMMISSION WHEREAS, the South Bend Redevelopment Commission (the "Commission"), the governing body of the South Bend Department of Redevelopment and the Redevelopment District of the City of South Bend, Indiana, pursuant to Indiana Code 36-7-14 (the "Act"), on January 24, 2012, approved and adopted its Resolution No. 3006 (the "Declaratory Resolution"), Exhibit A, amending the acquisition list in the South Bend Central Development Area Development Plan (the "Plan") for the South Bend Central Development Area (the "Area") and amending the South Bend Central Development Area Development Plan (the "Plan Amendment"); and WHEREAS, the Plan Amendment calls for the addition of 3 parcels located at the northwest corner of Main Street and Western Avenue, South Bend, Indiana, to the Acquisition List contained within the Plan; and WHEREAS, the St. Joseph County Area Plan Commission (the "Plan Commission"), which is the duly designated and acting official planning body for the City of South Bend, Indiana (the "City"), on February 21, 2012, adopted and approved a resolution, a copy of which is attached hereto as Exhibit B, determining that the Declaratory Resolution and the Plan Amendment conform to the plan of development for the City and approving, ratifying and confirming the Declaratory Resolution and the Plan Amendment, and designating such resolution as the written order of the Plan Commission approving the Declaratory Resolution and the Plan Amendment as required by Section 16 of the Act (the "Plan Commission Order"); and WHEREAS, Section 16 of the Act prohibits the Commission from proceeding until the Plan Commission Order is approved by the municipal legislative body of the City; and WHEREAS, the Common Council of the City is the municipal legislative body of the City and now desires to approve the Plan Commission Order in order to permit the Commission to proceed with the redevelopment of the Area; NOW, THEREFORE, BE IT RESOLVED by the Common Council of the City of South Bend, Indiana, as follows. tit CITY OF SOUTH BEND PETE BUTTIGIEG,MAYOR DEPARTMENT OF LAW ALADEAN M.DEROSE CITY ATTORNEY,AD INTERIM March 20,2012 Mr,Derek Dieter,President South Bend Common Council 4"'Floor County-City Building South Bend,IN 46601 RE: Proposed Addition of various parcels to the South Bend Central Development Area Acquisition List Dear President Dieter: Attached for the Common Council's consideration is a proposed resolution which approves an order of the St. Joseph County Area Plan Commission approving a declaratory resolution adopted by the South Bend Redevelopment Commission. This process began when the South Bend Redevelopment Commission (RDC) conducted a study and determined that it is necessary and beneficial to the orderly redevelopment of the South Bend Central Development Area (SBCDA) to add various parcels to the SBCDA Acquisition List. The declaratory resolution of the RDC was sent to the St. Joseph County Area Plan Commission (APC) for an order approving the RDC's action. The APC's resolution is now submitted to the South Bend City Common Council for its approval. There are three (3)properties proposed to be added to the acquisition list. The properties are all within the Coveleski Park Planning Area. The subject properties are located on the northwest corner of Main Street and Western Avenue and are the present site of the Gates Automotive Used Car Sales Lot. The properties were acquired as part of the sixteen(16) parcel acquisition from GMS Realty. Because these parcels were not on the acquisition list at the time of purchase, the properties were donated to the Board of Public Works and this process of amending the plan is necessary to allow for the properties to be transferred to the Redevelopment Commission. Either Bill Schalliol or another staff member from the Division of Economic Development will present this Resolution to the Common Council. Thank you for your consideration- Filed in_Clerk'S Offk Sinc La ce J,Meteiver VOORDE istant Gity Attorney CiTY CLERK,$00TH MND,IN l 1400 County-City Building 227 West Jefferson Boulevard South Bend,Indiana 46601 Phone: 574.235.9241 Fax: 574.235.7670 Exhibit A (Declaratory Resolution of the Redevelopment Commission) Exhibit B (Plan Commission Order) Exhibit A (Decluratw y Resolution of the Redevelopment Commission) " S RESOLUTION NO. 3005 A RESOLUTION OF THE SOUTH BEND REDEVELOPMENT COMMISSION AMENDING THE DEVELOPMENT PLAN FOR THE SOUTH BEND CENTRAL DEVELOPMENT AREA AND ADDING ONE OR MORE PARCELS TO THE LIST OF PARCELS TO BE ACQUIRED WHEREAS, the South Bend Redevelopment Commission ("Commission"), governing body of the City of South Bend Department of Redevelopment (Department"), on May 10, 1985, adopted Resolution No. 737 declaring the South Bend Central Development Area ("Area") in the City of South Bend, Indiana ("City") to be a blighted area within the meaning of the Redevelopment of Cities and Towns Act of 1953, as amended, I,C. 36-7-14 ("Act"); and WHEREAS, Resolution No. 737 and the South Bend Central Development Area Development Plan ("Development PIan") adopted by .Resolution No. 737 on May 10, 1985, were confirmed by Resolution No. 739 adopted on.Tune 14, 1985; and WHEREAS, Resolution No. 737 was amended by Resolution No. 745, adopted on August 9, 1985 and confirmed by Resolution No, 750, adopted on September 30, 1985; and WHEREAS, Resolution No. 737 was further amended by Resolution No.. 751, adopted on November 8, 1985 and confirmed by Resolution No. 757, adopted December 20, 1985; and WHEREAS, Resolution No. 737 was further amended by Resolution No, 795, adopted on February 27, 1 987, and confirmed by Resolution No. 798, adopted on April 10, 1987; and WHEREAS, Resolution No. 737 was further amended by Resolution No. 800, adopted on April 24, 1987, and confirmed by Resolution No. 803, adopted on June 26, 1987; and WHEREAS, Resolution No. 737 was further amended by Resolution No. 834, adopted on March 11, I988 and confirmed by Resolution No, 836, adopted on April 15, 1988, and said resolutions expanded the South Bend Central Development Area by adding Expansion Area No, ],, and WHEREAS, Resolution No. 737 was further amended by Resolution No. 867, adopted on February 10, 1989, and confirmed by Resolution No. 874, adopted on March 24, 1989; and WHEREAS, Resolution No. 737 was further amended by Resolution No. 881, adopted on July 28, 1989; and WHEREAS, Resolution No. 737 was further amended by Resolution No. 893, adopted on October 27, 1989 and said Resolution No. 893 expanded the South Bend Central Development Area by adding Expansion Area No. 2 and Expansion Area No, 3; and WHEREAS, Resolution No. 737 was further amended by Resolution No, 921 adopted on March 23, 1990; and WHEREAS, Resolution No. 737 was further amended by Substitute Resolution No. 944 adopted on July 27, 1990; and WHEREAS, Resolution No. 737 was further amended by Resolution No, 974 adopted on January 25, 1991; and WHEREAS, Resolution No. 737 was further amended by Resolution No. 1019 adopted on October 11, 1991; and WHEREAS, Resolution No. 737 was further amended by Resolution No, 1077 adopted on July 24, 1 992; and WHEREAS, Resolution No. 737 was further amended by Resolution No. 1205 adopted on January 4, 1994; and WHEREAS, Resolution No. 737 was further amended by Resolution No, 1284 adopted on September 2, 1994; and WHEREAS, Resolution No. 737 was further amended by Resolution No, 1547 adopted on November 21, 1997; and WHEREAS, Resolution No, 737 was further amended by Resolution No, 1559 adopted on December 19, 1997; and WHEREAS, Resolution No. 737 was further amended by Resolution No, 1562 adopted on February 24, 1998; and WHEREAS, Resolution No. 737 was further amended by Resolution No. 1723 adopted on December 17, 1999; and WHEREAS, Resolution No. 737 was further amended by Resolution No. 1737 adopted on February 18, 2000 and said Resolution No. 1737 expanded the,South Bend Central Development Area by adding Expansion Area No. 4; WHEREAS, Resolution No. 737 was further amended by Resolution No, 1758 adopted on July 7, 2000: and WHEREAS, Resolution No, 737 was further amended by Resolution No. 1783 adopted on August 4, 2000; and WHEREAS, Resolution No. 737 was further amended by Resolution No, 1843 adopted on September 7, 2001; and WHEREAS, Resolution No, 737 was further amended by Resolution No. 1901 adopted on September 6, 2002; and WHEREAS, Resolution No. 737 was further amended by Resolution No. 1922 adopted on December 6, 2002; and WHEREAS, Resolution No. 737 was fiirther amended by Resolution No. 1952 adopted on March 7, 2003; and WHEREAS, Resolution No. 737 was further amended by Resolution No. 1973 adopted on June 6, 2003; and WHEREAS, Resolution No. 737 was further amended by Resolution No. 2001 adopted on October 3, 2003; and said Resolution No. 2001 expanded the South Bend Central Development Area by adding Expansion Area No. 5; and WHEREAS, Resolution No. 737 was further amended by Resolution No. 2014 adopted on November 17, 2003; and said Resolution No. 2014 expanded the South Bend Central Development Area by adding Expansion Area No. 6; and WHEREAS, Resolution No. 737 was further amended by Resolution No. 2015 adopted on December 19, 2003; and said Resolution No. 2015 contracted the South Bend Central Development Area by removing Reduction Area No, 1; and WHEREAS, Resolution No. 737 was further amended by Resolution No. 2105 adopted on November 5, 2004; and said Resolution No. 2105 expanded the South Bend Central Development Area by adding Expansion Area Na 7; and WHEREAS, Resolution No. 737 was further amended by Resolution No. 2145 adopted on March 4, 2005; and WHEREAS, Resolution No. 737 was further amended by Resolution No. 2185 adopted on October 7, 2005; and WHEREAS, Resolution No. 737 was further amended by Resolution No. 2192 adopted on December 2,2005; and WHEREAS, Resolution No. 737 was further amended by Resolution No. 2328 adopted. on May 18, 2047; and WHEREAS, Resolution No, 737 was further amended by Resolution No. 2374 adopted on July 7, 2004; and WHEREAS, Resolution No. 737 was further amended by Resolution No. 2385 adopted on November 2, 2007; and said Resolution No. 2385 expanded the South Bend Central Development Area by adding Expansion Area No. 8; and WHEREAS, Resolution No. 737 was further amended by Resolution No. 2425 adopted on January 18, 2008; and WHEREAS, Resolution No. 737 was further amended by Resolution No. 2441 adopted on March 28, 2008; and WHEREAS, Resolution No. 737 was further amended by Resolution No. 2467 adopted on July 18, 2008; and WHEREAS, Resolution No. 737 was further amended by Resolution No. 2595 adopted on August 26, 2009; and WHEREAS, Resolution No. 737 was further amended by Resolution No. 2666 adopted on April 9, 2010; and WHEREAS, Resolution No. 737 was further amended by Resolution No. 2833 adopted on December 28, 2010; and WHEREAS, Resolution No. 737 was further amended by Resolution No. 2968 adopted on December 13, 2011; and said Resolution No, 2968 expanded the South Bend Central Development Area by adding Expansion Area No. 9; and WHEREAS, it is necessary to modify the list of parcels of property to be acquired by adding additional parcels of property to the.acquisition list; and WHEREAS, the Commission previously adopted the Development Plan and now desires to amend the Development Plan to provide for the acquisition of the parcels of property set forth in Exhibit A; and WHEREAS, the Development Plan includes a list of parcels of property to be acquired; and WHEREAS, it is necessary to modify the list of parcels of property to be acquired by adding additional parcels of property to the acquisition list; and WHEREAS, the Commission previously adopted the Development Plan and now desires to amend the Development Plan to provide for the acquisition of the parcels of property set forth in Exhibit A; and WHEREAS, pursuant to the Act, the Department has conducted surveys and investigations and has thoroughly studied the South Bend Central Development Area and the Development Plan; and WHEREAS, upon such surveys, investigations and studies having been made, the Commission finds that the Plan Amendment cannot be achieved by regulatory processes or by the ordinary operations of private enterprise without resort to the powers allowed under the Act and that the public health and welfare will be benefited by the accomplishment of the Plan Amendment which shall include the acquisition of the properties identified in Exhibit A; and WHEREAS, the Plan Amendment conforms to other development and redevelopment plans for the City, NOW, THEREFORE, BE IT RESOLVED BY THE SOUTH BEND REDEVELOPMENT COMMISSION, GOVERNING BODY OF THE CITY OF SOUTH .BEND DEPARTMENT OF REDE'V'ELOPMENT, AS FOLLOWS., I, The Commission hereby determines that to accomplish the redevelopment of the Area, it is necessary to acquire additional land within the Area, as shown on Exhibit A attached hereto and incorporated herein, 2. The Commission hereby determines that the public health and welfare will be benefited by the accomplishment of the Plan Amendment, 3, The Commission hereby determines that the accomplishment of the Plan Amendment will be of public utility and benefit as measured by, a) the attraction or retention of permanent jobs; b) an increase in the property base; C) improved diversity of the economic base; d) other similar public benefits. 4. The Commission hereby determines that the estimated cost of acquisition and redevelopment of the property being added to the acquisition list is$115,000,00, S. The Commission hereby determines that the Plan Amendment conforms to other development and redevelopment plans for the City. 6, The maps and plats of the South Bend Central Development Area, showing the boundaries, the location of the various parcels of property, streets, alleys and other features affecting the acquisition, clearance, replanting, replanning, rezoning or redevelopment of the Area, that are to be devoted to public ways, levees, sewerage, parks, playgrounds and other public purposes under the Plan, which maps and plats were previously adopted by the Commission, are hereby confirmed by the Commission. 7. The Secretary is hereby directed to file a certified copy of said Development Plan, as amended, with the minutes of this meeting. S. The officers of the Commission are hereby directed to submit this Resolution, together with supporting data, to the Area Plan Commission and the South Bend City Common Council, as provided by Section 16 of the Act, for the approval of this Resolution and the Plan Amendment, and if approved by both bodies, the Resolution and the flan Amendment shall be submitted to public hearing and remonstrance as provided by Section 17 and Section 17.5 of the Act and IC 5-3-1 and after all required filings have been made pursuant to Section 17(b) and (c) of the Act. 9. All orders or resolutions in conflict herewith are hereby rescinded, revoked and repealed in so far as such exist. 10. This Resolution does not affect any rights or liabilities accrued, penalties incurred, offenses committed or (except as otherwise provided herein) proceedings begun before the effective date of this Resolution. 11. All other findings, determinations and conclusions in Resolution No. 737, as amended, shall remain as stated therein. 12. The United States of America is hereby assured of full compliance by the South Bend Redevelopment Commission with regulations of the Department of Housing and Urban Development effectuating Title VI of the Civil Rights Act of 1964, as amended. (Balance ofpage intentionally left blank) ADOPTED at a regular meeting of the South Bend Redevelopment Commission held on January 24, 2012, at 1308 County-City Building, 227 West Jefferson Boulevard, South Bend, IN 46601. CITY OF SOUTH BEND, DEPARTMENT OF REDEVELOPMENT _gnaw e Marcia L Jones, President rime ume 1717W7,7te ATTEST: South Bend Redevelopment Commission C ighature Nancy N. King, cretary Trinfed Nam e South Bend Redevelopment Commission LX-H- A AMENDMENT TO THE SOUTH BEND CENTRAL, DEVELOPMENT AREA DEVELOPMENT PLAN ACQUISITION LIST AMENDMENT Parcel 0 Address Common Name Owner 18-3088-0265 331 S Main Gates Sales Lot GMS Realty Inc. 18-3088-0266 333 S Main Gates Sales Lot GMS Realty Inc. I8-3088-0267 335 S Main Gates Sales Lot GMS Realty Inc. RESOLUTION NO.225-12 RESOLUTION OF THE ST.JOSEPH COUNTY AREA PLAN COMMISSION APPROVING A RESOLUTION OF THE SOUTH BEND REDEVELOPMENT COMMISSION AMENDING THE DEVELOPMENT PLAN FOR THE SOUTH BEND CENTRAL DEVELOPMENT AREA AND ADDING ONE OR MORE PARCELS TO THE LIST OF PARCELS TO BE ACQUIRED WHEREAS, the St. Joseph County Area Plan Commission (the "Plan Commission"), is the body charged with the duty of developing a general plan of development for the City of South Bend, Indiana(the"City„); and WHEREAS, the South Bend Redevelopment Commission (the "Commission"), is the governing body of the South Bend Department of Redevelopment (the"Department"): and WHEREAS, on January 24, 2012, the Commission approved and adopted its Resolution No. 3006 entitled "A RESOLUTION OF THE SOUTH BEND REDEVELOPMENT COMMISSION AMENDING THE DEVELOPMENT PLAN FOR THE SOUTH BEND CENTRAL DEVELOPMENT AREA AND ADDING ONE OR MORE PARCELS TO THE LIST OF PARCELS TO BE ACQUIRED" (the "Declaratory Resolution"), attached hereto as Exhibit A; and WHEREAS, the Declaratory Resolution amends the boundary of the South Bend Central Development Area Plan (the "Plan") for the South Bend Central Development Area (the "Area"), and adopts an amendment to the Plan (the"Plan Amendment"); and WHEREAS, the Commission has submitted the Declaratory Resolution to the Plan Commission for approval pursuant to the provisions of Indiana Code 36-7-14 (the "Act"); and WHEREAS, pursuant to the provisions to the Act,the Plan Commission desires to issue its written order approving the Declaratory Resolution and the Plan, as amended by the Declaratory Resolution; NOW, THEREFORE BE IT RESOLVED by the St. Joseph County Area Plan Commission,as follows: 1. The Declaratory Resolution and Plan, as amended by the Declaratory Resolution, conform to the plan of development for the City. 2. The Declaratory Resolution and Plan Amendment are in all respects approved, ratified and confirmed. � 4 a „ x i7 T � rl l Nfln 11".lSS4:^Tc II k ui P 4 ,;, ,. til7�!? .� ,Q EXHIBIT A Declaratory Resolution South Bend Redevelopment Commission Resolution No. 3006 Adopted January 24,2012 -3- RESOLUTION NO. 3006 A RESOLUTION OF THE SOUTH BEND REDEVELOPMENT COMMISSION AMENDING THE DEVELOPMENT PLAN FOR THE SOUTH BEND CENTRAL DEVELOPMENT AREA AND ADDING ONE OR MORE PARCELS TO THE LIST OF PARCELS TO BE ACQUIRED WHEREAS, the South Bend Redevelopment Commission ("Commission"), governing body of the City of South Bend Department of Redevelopment ("Department"), on May 10, 1985, adopted Resolution No. 737 declaring the South Bend Central Development Area ("Area") in the City of South Bend, Indiana ("City") to be a blighted area within the meaning of the Redevelopment of Cities and Towns Act of 1953, as amended, I.C, 36-7-14 ('Act"); and WHEREAS, Resolution No. 737 and the South Bend Central Development Area Development Plan ("Development Plan") adopted by Resolution No. 737 on May 10, 1985, were confirmed by Resolution No. 739 adopted on June 14, 1985; and WHEREAS, Resolution No. 737 was amended by Resolution No. 745, adopted on August 9, 1985 and confirmed by Resolution No. 750, adopted on September 30, 1985; and WHEREAS, Resolution No. 737 was further amended by Resolution No. 751, adopted on November 8, 1985 and confirmed by Resolution No. 757, adopted December 20, 1985; and WHEREAS, Resolution No. 737 was further amended by Resolution No. 795, adopted on February 27, 1987, and confirmed by Resolution No. 798, adopted on April 10, 1987; and WHEREAS, Resolution No. 737 was further amended by Resolution No. 800, adopted on April 24, 1987, and confirmed by Resolution No. 803, adopted on June 26, 1987; and WHEREAS, Resolution No. 737 was further amended by Resolution No. 834, adopted on March 11, 1988 and confirmed by Resolution No. 836, adopted on April 15, 1988, and said resolutions expanded the South Bend Central Development Area by adding Expansion Area No. l;and WHEREAS, Resolution No. 737 was further amended by Resolution No. 867, adopted on February 10, 1989, and confirmed by Resolution No. 874, adopted on March 24, 1989; and WHEREAS, Resolution No. 737 was further amended by Resolution No, 881, adopted on July 28, 1989; and WHEREAS, Resolution No. 737 was further amended by Resolution No. 893, adopted on October 27, 1989 and said Resolution No. 893 expanded the South Bend Central Development Area by adding Expansion Area No, 2 and Expansion Area No. 3; and WHEREAS, Resolution No. 737 was further amended by Resolution No. 921 adopted on March 23, 1990; and WHEREAS, Resolution No. 737 was further amended by Substitute Resolution No. 944 adopted on July 27, 1990;and WHEREAS, Resolution No. 737 was further amended by Resolution No. 974 adopted on January 25, 1991; and WHEREAS, Resolution No. 737 was further amended by Resolution No. 1019 adopted on October 11, 1991; and WHEREAS, Resolution No. 737 was further amended by Resolution No. 1077 adopted on July 24, 1992; and WHEREAS, Resolution No. 737 was further amended by Resolution No. 1205 adopted on January 4, 1994; and WHEREAS, Resolution No. 737 was further amended by Resolution No. 1284 adopted on September 2, 1 994; and WHEREAS, Resolution No. 737 was further amended by Resolution No. 1547 adopted on November 21, 1997; and WHEREAS, Resolution No. 737 was further amended by Resolution No. 1559 adopted on December 19, 1997; and WHEREAS, Resolution No. 737 was further amended by Resolution No. 1562 adopted on February 24, 1998; and WHEREAS, Resolution No. 737 was further amended by Resolution No. 1723 adopted on December 17, 1999; and WHEREAS, Resolution No. 737 was further amended by Resolution No. 1737 adopted on February I8, 2000 and said Resolution No. 1737 expanded the South Bend Central Development Area by adding Expansion Area No, 4; WHEREAS, Resolution No. 737 was further amended by Resolution No. 1758 adopted on July 7, 2000: and WHEREAS, Resolution No. 737 was further amended by Resolution No. 1783 adopted on August 4, 2000; and WHEREAS, Resolution No. 737 was further amended by Resolution No, 1843 adopted on September 7, 2001; and WHEREAS, Resolution No. 737 was further amended by Resolution No. 1901 adopted on September 6, 2002; and ''WHEREAS, Resolution No. 737 was further amended by Resolution No. 1922 adopted on December 6, 2002; and WHEREAS, Resolution No. 737 was further amended by Resolution No. 1952 adopted on March 7, 2003; and WHEREAS, Resolution No. 737 was further amended by Resolution No. 1973 adopted on .tune 6,2003; and WHEREAS, Resolution No. 737 was further amended by Resolution No. 2001 adopted on October 3, 2003; and said Resolution No. 2001 expanded the South Bend Central Development Area by adding Expansion Area No. 5; and WHEREAS, Resolution No, 737 was further amended by Resolution No. 2014 adopted on November 17, 2003; and said Resolution No. 2014 expanded the South Bend Central Development Area by adding Expansion Area No. 6, and WHEREAS, Resolution No, 737 was further amended by Resolution No. 2015 adopted on December 19, 2003; and said Resolution No. 2015 contracted the South Bend Central Development Area by removing Reduction Area No. 1; and WHEREAS, Resolution No. 737 was further amended by Resolution No. 2105 adopted on November 5, 2004; and said Resolution No. 2105 expanded the South Bend Central Development Area by adding Expansion Area No. 7; and WHEREAS, Resolution No. 737 was further amended by Resolution No. 2145 adopted on March 4, 2005; and WHEREAS, Resolution No. 737 was further amended by Resolution No. 2195 adopted on October 7, 2005; and WHEREAS, Resolution No. 737 was further amended by Resolution No. 2192 adopted on December 2, 2005; and WHEREAS, Resolution No. 737 was further amended by Resolution No. 2328 adopted on May 18, 2007; and WHEREAS, Resolution No. 737 was further amended by Resolution No. 2374 adopted on July 7, 2004; and WHEREAS, Resolution No. 737 was further amended by Resolution No. 2385 adopted on November 2, 2007; and said Resolution No. 2385 expanded the South Bend Central Development Area by adding Expansion Area No. 8; and WHEREAS, Resolution No. 737 was further amended by Resolution No. 2425 adopted on January 18, 2008; and WHEREAS, Resolution No. 737 was further amended by Resolution No. 2441 adopted on March 28, 2008; and WHEREAS, Resolution No. 737 was further amended by Resolution No. 2467 adopted on July 18, 2008; and WHEREAS, Resolution No. 737 was further amended by Resolution No. 2595 adopted on August 26, 2009; and WHEREAS, Resolution No. 737 was further amended by Resolution No. 2666 adopted on April 9, 2010; and WHEREAS, Resolution No. 737 was further amended by Resolution No, 2833 adopted on December 28, 2010; and WHEREAS, Resolution No. 737 was further amended by Resolution No. 2968 adopted on December 13, 2011; and said Resolution No. 2968 expanded the South Bend Central Development Area by adding Expansion Area No. 9; and WHEREAS, it is necessary to modify the list of parcels of property to be acquired by adding additional parcels of property to the-acquisition list; and WHEREAS, the Commission previously adopted the Development Plan and now desires to amend the Development Plan to provide for the acquisition of the parcels of property set forth in Exhibit A; and WHEREAS, the Development flan includes a list of parcels of property to be acquired; and WHEREAS, it is necessary to modify the list of parcels of property to be acquired by adding additional parcels of property to the acquisition list; and WHEREAS, the Commission previously adopted the Development Plan and now desires to amend the Development Plan to provide for the acquisition of the parcels of property set forth in Exhibit A; and 1 WHEREAS, pursuant to the Act, the Department has conducted surveys and investigations and has thoroughly studied the South Bend Central Development Area and the Development Plan; and WHEREAS, upon such surveys, investigations and studies having been made, the Commission finds that the Plan Amendment cannot be achieved by regulatory processes or by the ordinary operations of private enterprise without resort to the powers allowed under the Act and that the public health and welfare will be benefited by the accomplishment of the Plan Amendment which shall include the acquisition of the properties identified in Exhibit A; and WHEREAS, the Plan Amendment conforms to other development and redevelopment plans for the City, NOW, THEREFORE, BE IT RESOLVED BY THE SOUTH BEND REDEVELOPMENT COMMISSION, GOVERNING BODY OF THE CITY OF SOUTH BEND DEPARTMENT OF REDEVELOPMENT, AS FOLLOWS: 1. The Commission hereby determines that to accomplish the redevelopment of the Area, it is necessary to acquire additional land within the Area, as shown on Exhibit A attached hereto and incorporated herein. 2. The Commission hereby determines that the public health and welfare will be benefited by the accomplishment of the flan Amendment. 3. The Commission hereby determines that the accomplishment of the Plan Amendment will be of public utility and benefit as measured by: a) the attraction or retention of permanent jobs; b) an increase in the property base; C) improved diversity of the economic base; d) other similar public benefits. 4. The Commission hereby determines that the estimated cost of acquisition and redevelopment of the property being added to the acquisition list is$115,000.00. 5. The Commission hereby determines that the Plan Amendment conforms to other development and redevelopment plans for the City. 6. The maps and plats of the South Bend Central Development Area, showing the boundaries, the location of the various parcels of property, streets, alleys and other features affecting the acquisition, clearance, replatting, replanning, rezoning or redevelopment of the Area, that are to be devoted to public ways, levees, sewerage, parks, playgrounds and other public purposes under the Plan, which maps and plats were previously adopted by the Commission, are hereby confirmed by the Commission. 7, The Secretary is hereby directed to file a certified copy of said Development Plan, as amended, with the minutes of this meeting. S. The officers of the Commission are hereby directed to submit this Resolution, together with supporting data, to the Area Plan Commission and the South Bend City Common Council, as provided by Section 16 of the Act, for the approval of this Resolution and the Plan Amendment, and if approved by both bodies, the Resolution and the Plan Amendment shall be submitted to public hearing and remonstrance as provided by Section 17 and Section 17.5 of the Act and IC 5-3-1 and after all required filings have been made pursuant to Section 17(b) and (c) of the Act. 9. All orders or resolutions in conflict herewith are hereby rescinded, revoked and repealed in so far as such exist. 10, This Resolution does not affect any rights or liabilities accrued, penalties incurred, offenses committed or (except as otherwise provided herein) proceedings begun before the effective date of this Resolution. 1 I. All other findings, determinations and conclusions in Resolution No, 737, as amended, shall remain as stated therein. 12. The United States of America is hereby assured of full compliance by the South Bend Redevelopment Commission with regulations of the Department of Housing and Urban Development effectuating Title VI of the Civil Rights Act of 1 964, as amended, (Balance of page intentionally left blank) Filed;I� ' MAP, 2 C1� ADOPTED at a regular meeting of the South Bend Redevelopment Commission held on January 24, 2012, at 1308 County-City Building, 227 West Jefferson Boulevard, South Bend, FN 46601. CITY OF SOUTH BEND, DEPARTMENT OF REDEVELOPMENT 1i 11'rure lrlarcia I. ,Jones, President rinle ante an !!e ATTEST: South Bend Redevelopment Commission ignarw Nancy N. King, cretary 716w—edlvamean /l e South Bend Redevelopment Commission (-t5A� ( L Bill No. -012 Ordinance No. AN ORDINANCE OF THE COMMON COUNCIL OF THE CITY OF SOUTH BEND, INDIANA, AMENDING INDIVIDUAL PARAGRAPHS WITHIN SECTION 2-84.13 AND SECTION 2-84.15 OF CHAPTER 2, ARTICLE 6 OF THE SOUTHBEND MUA7CPAL CODE ADDRESSING ANNUAL TAX ABATEMENT NOTICE AND REPORTING DATES STATEMENT OF PURPOSE AND INTENT This ordinance proposes adjustments to two (2) reporting dates related to the annual review of information on all tax abatement activities for the past calendar year in the City of South Bend. Currently the South Bend Municipal Code includes an annual review process which begins with the Community and Economic Development Department who is responsible for notifying property owners of the reporting requirements on or before February 1St of each year. All data received from property owners receiving tax abatement is then assimilating into an annual report which the Community and Economic Development Department is to file with the Office of the City Clerk and the Common Council on or before March 31"of each year. In the interest of promoting greater efficiencies with other required filings and reporting, this ordinance proposes to change the initial annual contact date to on or before April 15th ; and proposes to change the date which the Community and Economic Development Department files their annual report to June 15th. It is believed that the information received by the Community and Economic Development Department will be more complete by adjusting these dates for the annual review. This ordinance also proposes to change notification by the City to email in order to improve the timeliness of such reporting procedures and to save costs to the taxpayers in carrying out these duties and responsibilties. C-1actg b , /* 6w, *"wmv? �'raww4l of the City of South Bend, Indiana, as follows: Section I. Chapter 2, Article 6, Section 2-84.13 (b) of the South Bend Municipal Code is amended to read in its entirety as follows: See. 2-84.13 Annual Review of Petitions By Council. (b) Additionally, the petitioner shall file with the Committee its annual report on forms previous sent to it by the Community and Economic Development Department. Such mailing notice by the Community and Economic Development Department shall be done annually to each such petitioner on or before Febmafy4, April 15, by-sued mail or email and shall provide notice that if the property owner fails to comply, that it may be subject to fines as set forth in this article. Petitioners must return their completed annual report within thirty (30) days from the date the Community and Economic Development Department sends email notice Tax Abatement Annual Notice and Reporting Dates Ordinance Page 2 Section II. Chapter 2, Article 6, Section 2-84.15 (a) of the South Bend Municipal Code is amended to read in its entirety as follows: See. 2-84.15 Annual Summary to be Prepared by Community and Economic Development Department. (a) On or before Mafeh 31 June 15 of each year, the Community and Economic Development Department shall file an annual report with the City Clerk and Council summarizing all tax abatement activity for the past calendar year. The report shall include, but not be limited to, the following information: The number of tax abatement petitions filed, number and type of abatement granted, names and addresses of all petitioners who failed to comply with section 2-84.13, and other relevant information. The report shall include a copy of the County Auditor's information published by the County Auditor as required by IC 6-1.1-12.1-8. Section III. This ordinance shall be in full force and effect from and after its passage by the Common Council and approval by the Mayor. Council Member Henry Davis, Jr., Chairperson Community and Economic Development Committee Member of the Common Council John Voorde, City Clerk 3� We !by me to Pete Buttigieg, the Mayor of the City of South Bend, Indiana, on the day of , 2012, at o'clock m. Janice Talboom, Deputy Clerk cl vdaml ,�by me on the day of , 2012, at o'clock .m. Pete Buttigieg File 1 st READING Mayor d in jrk', office PUBLIC HEARING City of South Bend, Indiana FCLERK, ""—I 3 rd READING NOT APPROVW REFERREQ,PASSED CIT t-t SEND,W k, OIJTR8 City ®f South Bend t_1 Common Council x$65 441 County-City Building . 227W.Jefferson Blvd (574) 235-4321 South Bend,Indiana 46601-1830 Fax (574) 235-9173 Derek D. Dieter http://www.southbcn(lin.gov President Oliver J. Davis March 15, 2012 Vice-President Members of the Common Council Karen L. White 4th Floor County-City Building Chairperson, Committee South Bend, Indiana 46601 of the Whole Tim Scott Dear Council Members: First District At the March 12th Community and Economic Development Committee meetin Henry Davis, Jr. Don Inks, Director of the Division of Economic Development gave tt update one Second District reporting deadlines under the City's Tax Abatement Program. He an that the reporting requirements could be improved with adjusting the dates in the Valerie Schey city's governing ordinance. Third District Fred Ferlic The attached ordinance would change the initial notice date from February I"to Fourth District April 15th and would require the Community and Economic Development to complete all notice requirements by regular mail or email by that date. It would David Varner theme'change the date when the annual report would be filed with the Office of Fifth District the City Clerk and the Common Council from March 31St to June 15th. The state law requirement for property owners to complete and file their CF I Reports Oliver J. Davis would continue to be May 15th. Sixth District Derek The Council Attorney worked with Beth Leonard Inks, Director of Financial and At Large e Dieter Program Management in the drafting of this ordinance. Gavin Ferlic Based on the discussions at the March 12th committee meeting, the City At Large Administration will be requesting the Common Council to suspend the rules at its meeting of March 26 , so that I't & 2nd readings, public hearing and 3rd Karen L. White reading may all take place on that date. Further discussion will take place at the At Large March 26th CED meeting. Thank you. S' Hen s, r., son Community an conoxn" evelopment Committee Attachment Filed n ,. .,........... . .� T lerP,"s ffipt, MAR 'a 6 2012 CITY f CLEAx,S01.TH BEND,11� JOHN W. BYaRN1 EXECUTIVE DIRECTOR LARRY MAGLIOZZi DEPUTY DIRECTOR AREA PLAN COMMISSION OF ST. JOSEPH COUNTY. IN 227 VV_JEFFERSON BLVD. ROOM 1 140 COUNTY-CITY SLOG, SOUTH BEND,INDIANA 46601 (S79)235-9571 March 21,2012 The Honorable Council of the City of South Bend ! �p 4th Floor,County-City Building n. South Bend,IN 46601 RE: An Ordinance initiated by the Area Plan Commission of St. Joseph County, Indiana amending Chapter 21 of the South Bend Municipal Code Article 6, Overlay and Special Use Districts, Section 21-06.03 Northeast Neighborhood Development Area Overlay Zoning District,to revise the single and two-family residential roof eaves provisions APC#2623-12. Dear Council Members. I hereby Certify that the above referenced ordinance of Area Plan Commission Initiated was legally advertised on Thursday, March 8, 2012 and that the Area Plan Commission at its public hearing on Tuesday, March 20,2012 took the following action: Upon a motion by John McNamara, being seconded by Phil Sutton and unanimously carried, the Ordinance initiated by the Area Plan Commission of St. Joseph County, Indiana amending Chapter 21 of the South Bend Municipal Code Article 6, Overlay and Special Use Districts, Section 21-06.03 Northeast Neighborhood Development Area Overlay Zoning District,to revise the single and two-family residential roof eaves provisions is sent to the Common Council with a favorable recommendation. This small change to the overlay district does not compromise the integrity of the ordinance. It maintains a development environment that not only protects the existing character of the neighborhood but encourages future, new development to reinforce the unique neighborhood identity while making enforcement clearer. PLEASE NOTE that the Ordinance has been amended by the petitioner and is different than that used for the County Council's first reading. The amended Ordinance was legally advertised and heard by the Area Plan Commission. The deliberations of the Area Plan Commission and points considered in arriving at the above decision are shown in the minutes of the public hearing,and will be forwarded to you at a later date to be made a part of this report. Sincerely, P0.h J 'john W. B y omI JWB jsc . . __. Attachment " jR ' 09 `r kg Cl C RIM SERVING,ST.JC)SEPH COUNTY.SOUTH BEND,LAKEVILLE.NEW CARLISLE,NORTH LIBERTY,OSCEOLA&ROSELAND www,stiosephcountyindiann.com/Are-aplan Ordinance No. AN ORDINANCE OF THE COMMON COUNCIL OF THE CITY OF SOUTH BEND, INDIANA,AMENDING CHAPTER 21 OF THE SOUTH BEND MUNICIPAL CODE ARTICLE 6,OVERLAY AND SPECIAL USE DISTRICTS,SECTION 21-06.03 NORTHEAST NEIGHBORHOOD DEVELOPMENT AREA OVERLAY,ZONING DISTRICT TO REVISE THE SINGLE AND TWO-FAMILY RESIDENTIAL ROOF EAVES PROVISIONS STATEMENT OF PURPOSE AND INTENT The Common Council of the City of South Bend, Indiana, adopted a new zoning ordinance for the City of South Bend that went into effect in May 2004. A subsequent amendment in 2011 established the Northeast Neighborhood Development Area Overlay Zoning District. In studying possible designs of new single family residential construction is has been determined that the existing standards for roof eaves need to be changed so that certain types of houses can fit on narrow lots found within the Northeast Neighborhood Development Area. NOW, THEREFORE, be it ordained by the Common Council of the City of South Bend, Indiana, as follows: Section I. Chapter 21, Zoning, of the South Bend Municipal Code, Article 6 Overlay and Special Use Districts, Section 21-06.03 Northeast Neighborhood Development Overlay Zoning District is hereby amended as follows: (d) Single Family and Two-Family Residential (2) Single Family and Two-Family Residential Roof Shapes (C) Eaves shall have a maximum overhang of three feet(3'). Staff Rgo rt APC# 2623-12 Owner: APC Initiated Location: Text Amendment Jurisdiction: City of South Bend Requested Action: The requested action is a text amendment, initiated by the Area flan Commission amending Chapter 21 of the South Bend Municipal Code Article 6, Overlay and Special Use Districts, Section 21-06.03 Northeast Neighborhood Development Area Overlay Zoning District, to revise the single and two-family residential roof eaves provisions. Zoning and land use history&trends: In August 2011, the Common Council approved the Northeast Neighborhood Development Area Overlay Zoning District (NNDA) with a minimum and maximum eave width. Since that time, it was realized that the more narrow lots that exist throughout the neighborhood do not allow for the minimum eave width of 2'. In addition, certain architectural styles of houses would not provide eaves. Recommendation: Based on information available prior to the public hearing, the staff recommends the petition be sent to the Common Council with a favorable recommendation. Analysis: This small change to the overlay district does not compromise the integrity of the ordinance. It maintains a development environment that not only protects the existing character of the neighborhood but encourages future, new development to reinforce the unique neighborhood identity while making enforcement clearer. Area Plan Commission Initiated #2623-12 Page 1 of i Section 11. This Ordinance shall be in full force and effect from and after its passage by the Common Council and approval by the Mayor. Member of the Common Council Attest: City Clerk Presented by me to the Mayor of the City of South Bend, Indiana on the day of 2012, at o'clock m. City Clerk Approved and signed by me on the day of , 2012, at o'clock m. Mayor of the City of,South Bend, Indiana pulUC FMAR 7 2 0 2 rd NFAMIN'G PASSED _