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player ready...A South Lake County developer’s plan to bring into St. John a non-contiguous land parcel will likely land the town in court if it doesn’t follow a law crafted to prevent municipalities from doing what they’re attempting, vowed the State Senator who wrote the law.
Sen. Rick Niemeyer, R-Lowell, told the St. John Town Council at its packed September 10 public hearing to annex the 167-acre property at 12863 State Line Rd. in unincorporated Hanover Township that he wrote the law — House Bill 1099 written in 2014 (https://legiscan.com/IN/text/HB1099/2014) and cosponsored with Lonnie Randolph, D-East Chicago — because the Town of Lowell owned and operated an existing well field and wastewater treatment plant on which they wanted to make some updates. The land wasn’t contiguous to the town border, however, so he created the statute so the town “wouldn’t have to run to county all the time.”
“I worked with the Lake County Plan Commission on this legislation to put safeguards all around it that nothing can be a annexed off of this and no usage could change on these properties; that anything that changed on these properties had to go to the Lake County Zoning because all the area around it is controlled by unincorporated Lake County and the Plan Commission,” Niemeyer said. “So I covered that and all on the bill, and I did it to make sure that this is one piece for this use only.”
While he kind of understands what St. John’s trying to do with the parcel that developer John Lotton quitclaimed to the development company of which Donald Trump Jr. — who deeded the water rights to the town in July — is a part, the town doesn’t own the parcel, nor is there a fully functioning water utility on it; as well, the parcel can have only the utilities on it, not the 982-unit subdivision the town is proposing.
As such, the town can’t annex it under Niemeyer’s law.
“I want the people to know, and the council to know, that I was very adamant in making sure that nothing could be done off of these parcels because it was a big deal to let these municipalities do it, and I didn’t want to open up the state of Indiana where (bad actors) go out and grab a piece of property somewhere and think they have the zoning on that piece of property once they get that into their jurisdiction under a well field. It just can’t happen, the way I read it.”
If St. John decides to go through with it, anyway, Niemeyer said he won’t let the action go answered.
“I don’t typically get involved in other towns’ business, but I worked with (Legislative Services Attorneys) to put (HB 1099) together. We’ll have to let the lawyers work it out,” Niemeyer told the Post-Tribune.
Tim Ochs, an attorney with Ice Miller in Indianapolis who’s representing Lotton, told the crowd that while he appreciates and understands the “real concerns” the residents have, but claimed there’s “a fair amount of misinformation and a fair amount of assumption going on regarding the parcel.” On one part of the law, Ochs said Niemeyer is “wrong.”
“In the letter from Ned Kovachevich, there’s a … suggestion that this is not right because the entirety of the property is not within two miles of the existing perimeter of the town,” Ochs said. “There is a portion of Indiana code 36-4-3-4 that requires the entirety of what you would be annexing to be within two miles … That section applies only in specified counties, and those counties are identified by population, so it says if you’re in a county that is more than this many people and less than this many — I think there’s more than a dozen, and Lake County is not one of them — subsection B does not apply.
“He’s not interpreted the statute correctly; the entirety of the property does not need to be within the two-mile boundary of the existing municipal limits of the town of St. John. That would be false.”
To the concern that more people’s property would be taken by eminent domain and added to the 168 acres St. John wants, Ochs said that was “patently false” and reiterated the portion of Niemeyer’s law establishing that fact, plus eminent domain is not used in annexation, he said. Additionally, test wells that Lotton had drilled and tested in March, then removed, “weren’t illegal” because testing to determine the quality and quantity of any water was complete.
“The adoption of the annexation ordinance, should it ultimately be adopted, is not the end of the process, and it does not actually effectuate the annexation. It is a step in the process, and if the annexation ordinance is adopted, it does not become effective the next day. It becomes effective in the future when the property is being operated as a water withdrawal and treatment facility for the town of St. John,” Ochs said. “So, while I appreciate the letter that (Kovachevich) provided, this annexation, in my opinion, is legal. It does comply with this statute because of how it’s being done.”
Few in the audience were mollified by Ochs’s explanation. Donna Fathke, of St. John, implored the council to listen to Sen. Niemeyer.
“(Niemeyer) was the originator of this bill that you all are using to do the annexation and the water rights on this piece of property. I think he knows what he intended to write, and he has been in contact with state-level GOP lawyers and they came out against this,” Fathke said. “I think you need to consider this, because there’s a lot of people that are not behind this development.”
“You know what? You’re absolutely right. Niemeyer had a legal assistant, of course, write it, but that’s the problem with legislation: He might have intended to do something, and it just didn’t translate into law,” Councilman Christian Jorgensen, R-2, said.
“Well, it would be nice if you guys went with the spirit of it rather than trying to turn it around to your favor for whatever reasons,” Fathke said.
Jorgensen often took a loud, adversarial role during the meeting, pointing out that most of the attendees weren’t even St. John residents and therefore weren’t the audience to which the town is obligated.
“One thing I happen to have noticed that we are not prepared for today is all the complaints and aggravations I’ve heard about your existing living conditions — your traffic, um, heaven forbid, all of your break-ins and and all of that — and all of you live, of course, in unincorporated Lake County or Cedar Lake,” Jorgensen said. “We’ll go ahead and explain how this will affect you, but as far as your existing problems and complaints go — and it sounds like there’s a tremendous amount of them — I would say, “visit your Lake County Council. They’re there at 10:00 in the mornings on Thursdays. And also your Plan commission. Ned Kovachevich is here from the plan commission — he’s got a day pass with his buddy, and you can talk to him as well about these existing problems that you’ve got.
“I’m just simply looking at the forms and where you’re from and making an observation.”
Doug Blocker, of St. John, said he’s not against the annexation but objects to the PUD part of it.
“Based on exhibit A, you got 247 single family lots of 50 foot wide, 169-60 foot wide, 36 (that are) only 70 foot wide, and you’re having 530 single family attached town houses. I mean, to bypass the plan commission, it’s ridiculous,” Blocker said. “You did this last time with Mr. Lotton over east of Blaine: Plan Commission holds a hearing, neighbors show up and the developer just goes, ‘Uh, too bad. You know it’s already approved. Tough luck.’ If it’s a PUD, where’s the plan? I think you’re talking about he’s going to donate property for what, four wells, maybe a water tower. You’re giving him this high density. Why don’t you make him build those wells, build a water tower? The town can go anywhere and buy a piece of property and put a well on, but no, you’re giving Mr. Lotton again over five units per dwelling.”
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Councilman Gerry Swets, R-3, also questioned the PUD’s density.
“I can’t believe we’re going to approve 500 rowhouses. That’s just totally ridiculous,” Swets said. “In the past, anything annexed came in as an R-1 (single-family homes), so if somebody wanted a PUD, they had to go to the Plan Commission, they had to go to rezoning or whatever and present all of their findings of fact and meeting the requirements for a PUD. I just don’t see that happening.
“I think we still need to go back and have this annexed in as an R-1 and have it go through the Plan Commission and the BZA as required in order to get this done properly because when we approve PUDs, we don’t get the information about whether all the studies have been done or completed. We don’t review those. We just say, ‘Ah, okay, go ahead.’ And that’s part of the problem with this process.”
The Lake County Plan Commission will meet at 5:30 p.m. September 17 in the Lake County Council Chambers; the parcel isn’t on the agenda, but Lake County Surveyor and Plan Commission President Bill Emerson Jr. said he hoped the board would give residents time to talk about it during public comment.
Michelle L. Quinn is a freelance reporter for the Post-Tribune.