September 8, 2008

The Ellettsville, Indiana, Town Council met in Regular Session on Monday, September 8, 2008, at the Fire Department Training and Conference Room. Dan Swafford called the meeting to order at 7:30 p.m. David Drake led the Pledge of Allegiance and Phillip Smith led in prayer.

Roll Call: Members present were Dan Swafford, President; Dianna Bastin, Vice-President, David Drake and Phillip Smith. Sandra Hash, Clerk-Treasurer; Mike Spencer, Attorney and Rick Coppock, Town Engineer were also present. Scott Oldham was absent.

Supervisors Present: Jim Davis, Jim Ragle, Tony Bowlen, Mike Farmer, Jeff Farmer and Frank Nierzwicki were present.

Approval of the Minutes

Dan Swafford entertained a motion to approve the minutes for the Regular Meeting August 25, 2008. Dianna Bastin made the motion. David Drake seconded. Motion carried.

Action to Pay Accounts Payable Vouchers

Phillip Smith made a motion we approve Accounts Payable Vouchers. David Drake seconded. Motion carried.

Resolutions

Resolution 17-08 To Approve Levy Appeal for the three year growth factor

Sandra Hash explained this resolution states the Council is in favor of applying for an extra levy for 2009 due to the growth factor. Ellettsville has grown at a ten percent rate where as the state rate is four percent. The Town is asking for an appeal to adjust for our higher level of growth.

David Drake made a motion we adopt Resolution 17-08. Dianna Bastin seconded. Roll call vote: Dan Swafford – yes; Dianna Bastin – yes; David Drake – yes; Phillip Smith – yes. Motion carried 4-0.

New Business

Jack and Jill Daycare Sign Agreement

Frank Nierzwicki, Director of Planning Services presented a letter from Michael Ellis, Attorney for Jack and Jill. Jack and Jill are requesting to come into compliance with Town Code. They will turn off the scrolling feature of their sign, have a pause feature and turn it off from 10 p.m. until 6 a.m. everyday. They are requesting a sign permit and agreed to pay a $250 fine for having a sign without a permit and $50 for the permit. Mike Spencer, Town Attorney, suggested this be brought before the Town Council. David Drake verified the daycare did not know they were in violation until after the sign was installed. Frank said that was how he remembered the situation. Dianna clarified Jack and Jill’s sign request was turned down by the Board of Zoning Appeals (BZA). Frank stated Jack and Jill went to the BZA for a sign variance and it was denied. They had requested the sign be on 24 hours a day and it would be scrolling. Dianna asked how long we have been dealing with this. Frank replied 1 ½ to 2 years. David Drake asked if the sign will be in compliance with the Sign Ordinance if the agreement is approved. Frank explained the Sign Ordinance allows for lighted signs but not scrolling. Frank thought the earlier agreement with Jack and Jill allowed them to have an electronic sign on during the day, off at night and the message changed for the next day being more of a “reader board” sign but that is not what they agreed too. David Drake reiterated they will not be in violation if the sign does not scroll. Frank said yes. Dianna saw the sign scrolling last night. Frank said he would be on a scrolling alert to make sure that doesn’t happen. David Drake feels this is a “fine line”; the Town does not want to stifle businesses but we can not allow businesses to violate codes. This issue has taken longer to resolve than it should have, but if this is going to resolve the problem he can go along with it as long as it meets the code now. Dan Swafford agrees, it is a very nice sign, it was installed professionally, it is landscaped, it is very attractive and as a businessman he understands the need for good signage. His problem with this situation is Jack and Jill has not been willing to work with Town. David reiterated they will be paying a $250 fine but does not feel it covers the two years they have been out of compliance. David was on the BZA when Jack and Jill approached them and he did not have a problem with the sign, he had a problem with the fact the ordinance did not allow it. Frank stated Jack and Jill has costs involved with this; they paid $200 when asking the BZA for a variance, they have had an attorney involved and they are paying $250 in fines. Dianna still has a problem that they have had the same scrolling sign during all this process and it is probably still scrolling right now as we speak and the fine of $250 is minimal to her it should be at least doubled. She feels they have shown us no respect. Phillip Smith said they did meet with us to discuss the options. Small businesses operate on a “shoe string” and that is why the fine is $250. We wanted to be good neighbors. He realized they really weren’t, but somebody needs to be. Dan asked if the petitioner was here. Phillip replied no. Dianna questioned if the Town Ordinance still doesn’t allow scrolling signs. Phillip replied no even though we do have some in Town. Dan asked why Jack and Jill have continued to allow the sign to scroll. David Drake remembers from the BZA meeting the person, who sold the sign, constantly told Jack and Jill the Town had no right to tell them what to do with the sign. David added this is definitely not ideal, life is a series of compromises and we could spend a lot of money in litigation and get a few hundred more dollars or we can just try move on. Dan agreed and reiterated the sign looks nice and was professionally installed. The lack of cooperation is the issue the Council has with them. Dan asked Mike Spencer if this should be voted on. Mike Spencer responded yes, the owner is asking for the Council to approve the negations. Negotiations, between parties, are a way of resolving disputes.

Phillip Smith made a motion to approve this with Jack and Jill Daycare Center. David Drake seconded. Roll call vote: Dan Swafford – yes; Dianna Bastin – no; David Drake – yes; Phillip Smith – yes. Motion carried 3-1.

The following discussion took place before the vote

Russ Ryle, Reeves Road resident stated countless hours of Council, Attorney and staff time has been spent on this over the last 2-3 years. The fine does not cover the cost. The owners of Jack and Jill Daycare have been disrespectful to the Council and the town by not showing up at any of the meetings. Mr. Ryle feels the Sign Ordinance is flawed and opens up enforcement issues. This agreement might present future issues with scrolling signs. There are already other scrolling signs in Town; Edgewood High School, business on Sale and Temperance. Mr. Ryle is requesting this be tabled and the owners of the business attend the next meeting. As a taxpayer, $250 is not adequate for the time spent.

David Drake does not disagree with anything Russ Ryle said but reiterated a few more years could be spent fighting over this in court. We can resolve this with a compromise. Dan Swafford asked what the fine is for a scrolling sign. Frank stated the fine is $50 per day. Dianna asked who has to witness the scrolling sign and could an “official” person report it. Frank said he had to see it and could do spot checks but can not recommend a fine unless he sees it. Dianna agrees with Mr. Ryle except in regards to the high school sign. The school has worked hard for the sign, there are always exceptions to every rule and Edgewood High School is her exception.

David Drake asked Frank when to expect the scrolling to be turned off. Frank will inform Jack and Jill on Tuesday, September 9, 2008 of the situation. Mike Spencer recommended sending a letter.

Supervisors Comments

Jim Ragle, Ellettsville Street Department presented an annual sweeping contract from the State. This contract is for four years starting in December 2008 until 2012. The Town gets paid $300, per curb mile, to sweep State Road 46 twice a year. Sandra explained the agreement is for reimbursement of work completed.

David Drake made a motion we approve the agreement with the State in regards to street sweeping for State Road 46. Dianna Bastin seconded. Motion carried.

Tony Bowlen, Town Marshal is requesting the approval of a new Reserve Officer, Anthony Mullis. He has not attended the academy but has finished all of his training requirements, 40 hour pre-basic and all NIMS required with FEMA.

Dianna Bastin made a motion we accept Anthony Mullis as an Ellettsville Reserve Officer. Phillip Smith seconded. Motion carried.

Sandra Hash swore in Anthony Mullis.

Council Comment

Dan Swafford announced Bulky Day is October 24^th and 25th at the Monroe County Fairgrounds. There will be fliers to pass out at the next meeting.

Adjournment

Dianna Bastin made a motion we adjourn. Phillip Smith seconded. Motion carried. Dan Swafford adjourned the meeting at 7:59 p.m.