HomeMy Public PortalAbout10-05-1981 153
PROCEEDINGS OF THE COMMON COUNCIL OF THE
CITY OF RICHMOND, INDIANA, OCTOBER 5, 1981
1 The Common Council of the City of Richmond, Indiana, met in regular
2 session October 5, 1981 at the hour of 7:30 p.m. in the Council Chambers
3 in the Municipal Building in said City. President Mills presided with
4 the following members present: Messrs.. Elstro, Williams, Ahaus, Welch,
5 Parker, .Carter. and Paust. Absent: Hankinson. The following business
6 was had, to-wit:
7 -
8 DEVOTIONS
9
10 Devotions were given by Councilman. Jack Elstro.
11
12 APPROVAL OF MINUTES OF SEPTEMBER 21, 1981
13
14 Councilman Williams moved to approve the minutes of the previous
15 meeting as received, seconded by Councilman Welch and on unanimous
16 voice vote the motion was carried.
17
18 EXCUSES FOR PREVIOUS ABSENCE
19
20 President Mills announced he was absent from the previous meeting as
21 he was attending the Indiana Association of Cities and Towns convention
22 in Indianapolis.
23
24 PRESENTING OF PETITION
25
26 Councilman Welch, in the absence of Councilman Hankinson, presented a
27 petition by the residents of the North 36th Street area on the east
28 side requesting rezoning from R-3 to R-1 single family. He presented
29 the petition to Plan Directo.r Bob Goodwin for consideration by the
30 Plan Department and possibly presenting it to the Plan Commission.
31
32 ORDINANCES ON 1ST READING
33
34 Councilman Welch moved to suspend the rules .and .read .Ordinances 69-
35 1981 through 73-1981 on first reading by title only, seconded by
36 Councilman Parker and on unanimous voice vote the motion was carried.
37
38 ORDINANCE NO. 69-1981
39
40 The Clerk read on first reading by title only Ordinance No. 69-1981 -
41 AN ORDINANCE AMENDING SPECIAL USE ORDINANCE NO. 2-1980 WHICH AUTHORIZED
42 A DENTAL OFFICE AT 1921 CHESTER BOULEVARD IN A R-2 ONE-TO-EIGHT FAMILY
43 RESIDENCE DISTRICT, FOR THE PURPOSE OF AMENDING THE APPROVED SPECIAL
44 USE SITE PLAN TO PERMIT THE ERECTION OF A FREE-STANDING IDENTIFICATION
45 SIGN.
46 .
47 Councilman Welch moved to suspend the rules and read Ordinance No. 69-
48 1981 on second reading, seconded by Councilman Parker and on unanimous.
49 voice vote the motion was carried. -
50
51 The Clerk read on second reading Ordinance No. 69-1981.
52
53 President Mills announced. Ordinance No... 69-1981 is on public hearing.
54 Speaking for this Ordinance was Attorney Andrew Cecere, representing
55 Dr. Ackerman. This ordinance amends Ordinance No. 2-1980 for place-
56 ment of a sign.
57
58 Councilman Paust moved for engrossment of Ordinance No. 69-1981,
59 seconded by Councilman Ahaus and on unanimous voice vote the motion
60 was carried.
61
62 Councilman Welch moved to suspend the rules and read Ordinance No. 69-
63 . 1981 on third and final reading by title only, seconded by Councilman
64 Parker and on unanimous voice vote the motion was carried.
154.
Council Minutes Cont'd.
October 5, 1981
Page 2
1 The Clerk read on third reading by title only Ordinance No. 69-1981.
2
3 Ordinance No. 69-1981 was adopted by the following vote :
4 AYES: Elstro, Williams, Ahaus, Welch,
5 Parker, Carter, Paust, Mills (8)
6 NOES: None (0)
7 ABSENT: Hankinson
8
9 ORDINANCE NO. 70-1981
10
11 The Clerk read on first reading by title only Ordinance No. 70-1981 -
12 AN ORDINANCE AMENDING CHAPTER 154 OF THE MUNICIPAL CODE, BEING ORDINANCE
13 NO. 2325-1968, COMMONLY KNOWN AS THE ZONING ORDINANCE OF THE CITY. OF
14 RICHMOND, INDIANA, ADOPTED JUNE 3, 1968, PROVIDING FOR THE REZONING
15 OF PROPERTY LOCATED AT 600 THROUGH 626 NORTH 12TH STREET FROM R-3
16 ONE-TO-EIGHT FAMILY RESIDENCE DISTRICT TO C-2 COMMERCIAL DISTRICT.
17
18 Councilman Welch moved to suspend the rules and read Ordinance No. 70-
19 1981 on second reading, seconded by. Councilman Williams and on unanimous
20 voice vote the motion was carried.
21
22 The Clerk read on second reading Ordinance No. 70-1981.
23
24 President Mills announced Ordinance No. 70-1981 is on public hearing.
25 Speaking for this Ordinance was Attorney Clyde Williams, attorney
26 representing the owner of the property. The property is to be used
27 as a billiard parlor.
28
29 Councilman Williams moved for engrossment of Ordinance No. 70-1981,
30 seconded by Councilman Carter and on unanimous voice vote the motion
31 was carried.
32
- - - -- - ----
33 Councilman Williams moved to suspend the rules and read Ordinance No.
34 70-1981 on third and final reading by title only, seconded by Council-
35 man Carter and on unanimous voice vote the motion was carried.
36
37 The Clerk read on third reading by title only Ordinance No. 70-1981.
38
39 Ordinance No. 70-1981 was adopted by the following vote:
40 AYES: Elstro, Williams, Ahaus, Welch
41 Parker, Carter, Paust, Mills (8)
42 NOES: None (0)
43 ABSENT: Hankinson
44
45 ORDINANCE NO. 71-1981
46
47 The Clerk read on first reading by title only Ordinance No. 71-1981 -
48 AN ORDINANCE AMENDING CHAPTER 154 OF THE MUNICIPAL CODE, BEING ORDINANCE . -
49 NO. 2325-1968, COMMONLY KNOWN AS THE ZONING ORDINANCE OF THE CITY OF
50 RICHMOND, INDIANA ADOPTED JUNE 3, 1968, PROVIDING FOR THE REZONING OF
51 PROPERTY LOCATED AT 302 NORTH 7TH STREET FROM R-4 MULTI-FAMILY RESIDENCE
52 DISTRICT.TO M-1 LIGHT INDUSTRIAL DISTRICT.
53
54 Councilman Welch moved to suspend the rules and read Ordinance No. 71-
55 1981 on second reading, seconded by Councilman Parker and on unanimous
56 voice vote the motion was carried.
57
58 The Clerk read on second reading Ordinance No. 71-1981.
59 .
60 President Mills announced Ordinance No. 71-1981 is on public hearing.
61 Speaking for this Ordinance was Attorney Ron Cross, representing Rich-
62 mond Community Schools. This Ordinance is to zone the old Warner School
63 property for use as a school bus garage, replacing one which was located
64 on Sim Hodgin Parkway and burned. Council expressed concern with traffic -
55
•
Council Minutes Cont'd. -
1 October 5, 1981
Page 3
1 congestion and parking. The additional structure will be approximately
2 50x60 feet at an estimated cost of $160,000. The building will house
3 the maintenance staff of less than 15, with bus drivers coming-and
4 going from the dispatch area. The fleet of busses constitutes 42
5 busses and- 31 to 33 would be. housed in the garage. He stated there
6 will be adequate parking: ' City Plan Director Bob Goodwin stated the
7 procedures for instituting a zoning change are being •followed in that
8 in order to rezone at any time you must show that something in the
• 9 neighborhood -has changed. : In this instance the character of the neigh-
10 borhood.has changed, going away from residential 'shown.by the loss of
11 the neighborhood school. Mr. Cross stated the architect's drawing for
12 - ' the building is being.presented to the School Board tonight. Speaking
13 against this Ordinance was Mr. Robert Sharp, 2333 South "E" Street,
14 speaking in-behalf of residents in the neighborhood. He-expressed
15 concern over .noise and fumes from the busses. Mr. Sharp noted he
16 owns property in the area. ,
17
18 Councilman Paust stated that since the plans are being presented to
19 • the School. Board this evening:Council should request the plans be
20 brought to them at their next meeting for them to examine; also, what •
21 the traffic pattern might be for this area. For these reasons Council-
22 ' man Paust moved-to table Ordinance No. 71-1981, seconded by Councilman
23 Elstro and on unanimous voice vote the motion was carried.
24 . . . .
25 'ORDINANCE NO. 72-1981
26
27 The Clerk read on first reading by title only Ordinance. No. 72-1981 -
28 AN ORDINANCE. AMENDING SPECIAL ORDINANCE NO. 68-1980, WHICH AUTHORIZED
III 29 A DEVELOPMENT UNIT .PROJECT IN THE 3800 BLOCK OF WOODSIDE DRIVE IN A
30 C-2 COMMERCIAL ZONE, FOR THE PURPOSE OF.AMENDING'THE APPROVED DEVELOP-
31 MENT UNIT PROJECT SITE PLAN.
32
33 Councilman Welch moved to suspend'the rules and read Ordinance No. 72-
34 1981 on second reading, seconded by Councilman Parker ,and on unanimous
35 voice vote the motion was carried.
' 36 , .
37 The Clerk read on second reading Ordinance No: 72-1981. .
38
39 President Mills announced Ordinance No. 72-1981 is on public hearing.
40 Speaking for this Ordinance was Attorney Willard° Bowen, representing
41 AIM Investments. This ordinance amends Ordinance No. 68-1980 reducing
42 the number- of entrances off Woodside Drive to one (1) and reducing the
43 grade of the drive to the garages from 10 degrees to '2 or 3%.
44
45 Councilman Elstro moved for engrossment of Ordinance No. 72-1981,
46 seconded by Councilman Williams and on unanimous voice vote the motion
47 was carried. - . . .
48 - ' . .
49 Councilman Carter moved to suspend-the- rules and read-Ordinance No. 72-
50 1981 on third and final reading by title-only, seconded by Councilman
51 Welch and on unanimous voice vote the motion was carried.
III 52
53 The Clerk read on third reading by title only Ordinance No. 72-1981. .
54 .
55 . Ordinance-.No. 72-1981 was adopted'by- the--following vote: '
56 AYES: Elstro., Williams, Ahaus, Welch, .
57 Parker, Carter, Paust, Mills. . . . . (8) •
58 NOES: None (0)
59 ABSENT: Hankinson .
60 .
61 ORDINANCE NO. 73-1981 .
62
63 The Clerk read on first reading by title only' Ordinance No. 73-1981 -
64 AN ORDINANCE TO APPROPRIATE WITHIN THE-GENERAL FUND.
56
Council Minutes Cont'd.
October 5, 1981
Page 4
1 President Mills announced Ordinance No. 73-1981 has to be. advertised.
2
3 ORDINANCES ON 2ND READING
4 ORDINANCE NO. 67-1981
5
6 The Clerk read on second reading Ordinance No. 67-1981 - AN ORDINANCE
7 TO APPROPRIATE WITHIN THE GENERAL FUND.
8
9 City Attorney. Ed Anderson examined proof of publication for Ordinance No.
10 67-1981 and found it to be in order. Councilman Ahaus moved the proof
11 be accepted and placed on file, seconded by Councilman Welch and on
12 unanimous voice vote the motion was carried.
13
14 President Mills announced Ordinance No. .67-1981 is on public hearing.
15 Speaking for and explaining this Ordinance was City Controller Don
16 Meredith..
17
18 Councilman Welch moved for engrossment of Ordinance No. 67-1981, se-
19 conded by Councilman Williams and on unanimous voice vote the,motion
20 was carried.
21
22 Councilman Welch moved to suspend the rules •and read Ordinance No. 67-
23 1981 on third and final reading by title only, seconded by,Councilman
24 Ahaus and on unanimous voice vote the motion was carried.
25 -
26 The Clerk read on third reading by title only Ordinance No. 67-1981.
27
28 Ordinance No. 67-1981 was adopted by the following vote:
29 AYES: -Elstro, Williams, Ahaus, Welch,
30 Parker, Carter, Paust, Mills (8)
31 NOES: None (0)
32 ABSENT: Hankinson
33
34 RESOLUTION NO. 17-1981
35
36 President Mills stated Councilman Carter has declared himself not to
37 vote on the economic development bond issue of Vista Pines and requested
38 Councilman Carter remove himself from the Council floor to the Chamber
39 floor.
40
41 President Mills requested.Resolution No. 17-1981 be brought off the table.
42 Coundilman Ahaus so moved, seconded by Councilman Williams and on
43 unanimous voice vote the motion was carried.
44
45 President Mills requested City Attorney Ed Anderson give his opinion
46 on the validity of Section 1122 and what the Council should or should
47 not do on voting on this Resolution. Mr. Anderson gave the following
48 - opinion: .
49 Mr. Kenneth Mills, President ,
50 Richmond Common council .
51 and Members of
52
53 Gentlemen:
54
55 This is , inanswer,to your request for an official opinion. as •
56 to whether or not Vista Pines, Inc. , .possesses a valid approval
57 under Section 1122 of the Social Security Act.
58
59 ANALYSIS
60
61 I have examined and perused the material submitted to me both
62 by the attorney for the proponents, Mr. Robert Maley, and by
63 the attorney for the opponents, Mr. Robert Burton. All of this
64 same material has been previously presented to the Common Council
57
Council Minutes Cont'd.
. October 5, 1981
Page 5
1 • and in this opinion I need not reiterate the complex fact,
2 situation'.' . . .
3
III 4 The proponents argue a valid permit- exists by reason) of a
5 United- States Bankruptcy Court, -Southern District of Indiana,
6 • ..- . court -decision and- the opponents argue no such valid -permit
7 exists by reason of a letter dated August 14, -1981 from E.
8 • Frank Ellis, N.D. , Regional Health Administrator to Ronald
9 G4 Blankenbaker; N.D. , (-Indiana State. Board of Health and
10 - . `by reason of a decision of Judge James. C. Puckett,. Wayne
11 Circuit Court,- in the case of Heritage Regency vs. State
12 Board ofHealth (Cause No. -C80-9441-C) . - - '
13 -
14 The issue is whether the Department of Health and Human .•
15 Services has ever terminated the Section 1122. permit ap-
16 proval issued to Vista Pines. -
17
18 It is my opinion that under 28. U.S.C:s 1471 the federal court
19 .decision which:court made the-decision regarding -the Section
20 1122 permit has ,full jurisdiction over aII:,matters which are
21 brought before it and has determined that Section 1122 per-
22 mit is in full force and effect.
23 .
24 It is noted, too, that the U.S. Department of Health and
25 Human Services was present in this federal court action and
26 did not raise any claim of termination at that time. I _.
27 %%would think having failed to- exercise, any legal right to
III 28 raise this issue of revocation or,te.rmination before the-
29 court, they would now be precluded from doing so. That
30 department fully participated in the trial and proceeding
31 -at which time:the court found-the Section 1122 permit -to
32 be in full force and 'effect. ' - Furthermore', the Department- of
33 Health and Human Services did not appeal that decision.
34 Following the trial, the Department 'of Health and Human, :
35 Services issued a letter relating to the Section 1122 ap=
36 proval. This letter did not affect the status of the ap-
37 - proval and'the letter merely stated :that if certain events
38 were to -occur there may -be.a need-to hold-a hearing, to• ap-
39 prove or disapprove. said_ events. - It could be that one of
40 the questions before the Common Council is -whether those
41 events have occurred. But, still, under due process of
42 law, iit would appear- to me that if such events have oc-
43 curved, a hearing would have to be held by the Department
44 of Health and Human Services.
45 • . . .
46 - Tome; the-basic issue befOre the Common Council is whether
47 this economic development:bond should be approved. -- If the:
48 developer has met all of the procedural requirements in- -
49 cluding the Economic Development Commission inducement
50 resolution before you and if such developer proposes to
51 , build "an economic. development facility" as defined. by IC
III 52 36-7, I would think it is then merely your judgmental de-
53 - cision.
54 •
55 I do not find that any of the evidence reviewed indicates
56 - that-the Section 1122 approval has been terminated or- re
57 yoked nor have' any hearings or,other proceedings been held
58 by the Department of Health and Human:: Services to- consider
59 this matter further as to review or termination.
60 . . ..
61 It 'is-my opinion-that the Court decision- is' binding on any
62 court and the Indiana Depa'rtment':of. Health and that at this
63 moment there exists a valid 1122' approval.
158
Council Minutes Cont'd.
October 5, 1981
Page 6
1 Councilman Parker stated- he requested a legal opinion to determine if
2 this facility can be kept on the tax roles even if it passes from a
3 profit to a non-profit institution. Mr. Anderson stated this is under
4 a different statute pertaining to taxes; however, just because they
5 become anon-for-profit organization_doesn't mean they will be removed
6 from the tax roles - they would have to follow certain procedures,
7 such as appealing to the State Board of Tax Commissioners. Council-
8 man Ahaus questioned that if Vista Pines exercises its :option to buy
9 this health care center, will it then come off the tax roles; and,
10 can we assure by amending this resolution that it won't. Mr.. Anderson
11 stated the resolution could be amended to include a section stating
12 they will not seek to have themselves removed, from the tax assessed
13 roles and will stay subject to tax. City Controller Don Meredith, a
14 former County Treasurer,. stated that if anyone files as a not-for-
15 profit organization with the County Auditor that is acted upon by a
16 local tax board and if they find that it, is truly anot-for-profit
17 organization they can take the taxes off. If they say they are not
18 eligible, they have: the right to appeal to the State Board of Tax
19 Commissioners. He stated he did not feel you can write in a resolution
20 that a not-for-profit organization is going to be:taxed_when the statutes
21 prevail. Mr. Anderson suggested a provision be,put in that if they do
22 become tax exempt they will pay in lieu of taxes the equivalent to
23 whatever the taxes would be to the City of Richmond. Mr. Meredith stated
24 this could be done by contractual arrangement.
25 -
26 Mr. Anderson suggested,the amendment should be on page 5 .with a new
27 Section 4 added to the effect that the ,developer or any successor or
28 assigns thereto this project that is a not-for-profit or gains tax111
29 exempt status will in lieu of pay the City the equivalent to the tax
30 base for the year involved pursuant to a contract between the City of
31 Richmond and said developer, successors or assigns or anybody of in-
32 terest to this which can be properly worded later.
33
34 Councilman Parker so moved, seconded by Councilman Ahaus and on
35 unanimous voice vote the motion was carried.
36
37 Attorney--Robert Burton asked if he might ask questions of the City
38 Attorney. President Mills stated it was not necessary at this time
39 as Resolution 17 is strictly a resolution approving. and; authorizing
40 certain actions and proceedings with respect to certain proposed
41 economic development revenue bonds; and.on that basis with all the
42 hearings held before, it is up to Council to make up their minds whether
43 or not they want to vote on it.
44
45 Councilman Welch noted there was an additional question brought out at
46 the last public hearing. Bond counsel was requested to file with the
47 resolution a. copy of their opinion of the status of the 1122 permit. .
48 Attorney Gayle Gardner presented letters from Smith & Schnacke of
49 Dayton, Ohio and Ballard, Spahr, Andrews & Ingersoll.
50
51 Councilman Elstro questioned how many votes ittakes to pass this
52 resolution. He noted there are seven (7) members present. President
53 Mills stated it took five (5) aye votes to pass, which Mr. Anderson
54 concurred with.
55
56 Councilman Williams stated he had been concerned about Medicaid patients
57 being taken care of and since Mr. Thomas stated they could not operate
58 without Medicaid patients.
59 -
60 Mr. Burton posed a question to President Mills stating he doesn't
61 believe the question asked Mr. Anderson-has been answered clearly that
62 was made to;him; namely, as to his making an inquiry of Health & Human.
63 Services as well as the State Board of Health if such an inquiry is
64 made by Mr. Anderson of those agencies as the status of 1122 approval.
159
Council Minutes Cont'd.
October 5, 1981
Page 7
1 . If that inquiry was made as I thought .Council requested, I think it
2 should- be included. . President Mills stated he .didn't know whether
3 that was made or not but he understood Council asked Mr. Anderson
4 if, in fact, the' 1122 was valid or not valid. He stated he didn't
5 think it was this Council's business whether 1122 is good, bad or
6 indifferent and he doesn't think this is what they are voting on.
• 7 He asked the Clerk to take the roll.
8
9 Amended Resolution No. 17-1981 was adopted by the following vote:
10 AYES: Elstro, Williams, Ahaus, Welch, Parker, Paust, Mills (7)
11 NOES: None (0)
12 ABSENT: Hankinson
13 ABSTAINING: Carter
14 •
15 Councilman Welch moved that the letters delivered to the Council from
16 the attorneys Ballard, Spahr, Andrews & Ingersoll in Philadelphia
17 and Smith- & Schnacke in Dayton be .attached to the Resolution and
18 made a permanent file or portion of the Resolution, seconded' by
19 . Councilman Williams and on unanimous voice vote the motion was carried.
20
21 ...SET COMMITTEE OF THE WHOLE MEETING ON USER CHARGE ORDINANCE '
22 .
23 Chairman of the Committee of the Whole Rick Ahaus set a Committee
24 meeting to study Ordinance No. 49-1981 (User Charge) for October
25 15 at 7:00 p.m. in the Board of Works or City Court Room. Chair
26 man Ahaus stated Sanitary Superintendent Goodknight .has requested
27 if any Councilman. has any specific questions they be -submitted in
III 28 writing to him by October 12.
29
30 ADJOURNMENT
31
32
33 There being no further business on motion duly made, .seconded and
34 passed the meeting was adjourned.
35
36 Kenneth Mills
37 President
38
39 ATTEST: JoEllen Trimble
40 City Clerk
160.
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