By VICKI URBANIK
Porter County now has an open space ordinance requiring developers in the
unincorporated areas to set aside at least 10 to 20 percent of the land in
new subdivisions for green space, while allowing those eligible the right to
retain the same housing density by building on smaller lots.
Facing a packed audience, the Porter County Plan Commission voted 5-4
Wednesday to adopt the ordinance that the County Commissioners unanimously
approved last month as a compromise to an earlier ordinance seen as much
more restrictive for developers.
The planners’ vote was a contentious one, potentially teeming with political
consequences for those on both sides of the issue.
Though the public hearing was closed and audience comments were not allowed,
plan commission member Eric Biddinger at one point asked the audience for a
show of hands from those who support open space. All but a few hands went
Two leaders of the Porter County Builders Association have stressed that,
contrary to public perception, builders and developers do not oppose having
an open space ordinance, only the ordinance in its current form.
Judging by the comments raised Tuesday, it’s likely that the adopted
ordinance will be reworked, with even some supporters saying that the
ordinance is only a start and that some of its details need to be fine-tuned
as the rules are applied.
County Attorney Gwenn Rinkenberger took the matter a step further by saying
that the rules for adopted ordinances are different from those still
pending, and that the county commissioners now have the power to revise,
even rescind, the ordinance if they so choose. Center District Commissioner
and plan commission member Robert Harper said, however, that further
revisions would still require the involvement of the plan commission.
Two of the plan commission members who supported the original ordinance
calling for an across-the-board 20 percent open space set-aside -- county
council member Robert Poparad and Michael Bucko -- switched positions
Wednesday and voted against the compromise ordinance. Both said the
ordinance was flawed and both called for it to be reworked by a committee
under a deadline of six months or so, an option that has also been suggested
by the PCBA.
The deciding vote of the night was cast by Plan Commission President and
County Surveyor Kevin Breitzke, who voted against the original 20 percent
Breitzke ripped into that original proposal, saying that it did not give
developers any incentive for setting aside open space, contained too few
guidelines and lacked clear definitions. “The first ordinance was bad,” he
said, adding after the meeting that he felt open space advocates favored it
only because of its intent at land preservation without taking into account
Breitzke, who works closely with builders and developers in his role as
County Surveyor, said he is sensitive to the builders’ concerns and that he
wants to work with them to strengthen the ordinance as it’s put into effect.
He specifically said he’d like to use the ordinance to promote home
“clustering,” which allows more lots than normal and breaks away from the
idea that subdivisions need very large lots, a concept likely favorable to
But given his tie-breaking vote Wednesday, Breitzke was asked if he expects
political backlash from the builders in his re-election bid this year
against Republican challenger Harvey Nix. Breitzke said “possibly,” but that
no matter how he would have voted, he could have been accused of casting his
vote for political gain.
The ordinance requires a minimum 10 percent open space in so-called
cornfield developments, or those lacking natural features like woods or
wetlands. Developers could count retention areas toward their open space,
but the minimum set-aside in such cases rises to 15 percent. Developments
with natural features must set aside 20 percent for open space, with the
goal of preserving as much of the natural area as possible up to a maximum
of 40 percent total. Developers setting aside at least 15 percent would
qualify for an “intensity bonus” potentially allowing the same lot density
while still setting aside the open space.
A Stunned Harper
The 5-4 vote came as a pleasant surprise to Harper, who has spearheaded the
ordinance and who personally paid for letters and newspaper ads aimed at
drumming up public support.
Harper said he came to the meeting expecting defeat.
His pessimism, however, didn’t stop him from making an impassioned plea to
his fellow planners. He said the planners repeatedly get frustrated by
having to work under rules they don’t like but that they don’t take the
initiative to change them. “We just have a zoning ordinance that’s in a
shambles,” he said.
His most forceful statement came when he said builders and developers have
obviously met with the planners in private to get them to vote against the
ordinance, and that such maneuvering is the norm in county government.
“I am sick of the way this county is run,” he said.
Suggesting defeat, he told the planners that he has “fought as long and hard
as I can fight” and that they should “do what you’re going to do.” But he
also called on planners to vote against it only if they truly oppose the
ordinance, and not to hide behind an argument that they’re voting no only in
order to tweak the language.
“Let’s stand up tonight and do the right thing,” he said.
Plan commission member Robert Detert, citing the open space committee that
the commissioners formed this summer to come up with a compromise, said the
commissioners went “overboard to ensure that everybody got heard.” A former
developer himself, Detert said when the planners forwarded the original
ordinance to the commissioners, it was noted that the commissioners could
tweak the ordinance as they saw fit.
“I think they did that,” he said.
Detert made the motion to adopt the commissioners’ approved ordinance, and
Harper seconded it.
But two of the plan commission members who voted no on the original
ordinance did so again Wednesday.
Planner Mike Sheetz said the ordinance would force people into Property
Owners Associations and that if they can’t pay the POA dues, the open space
could become a liability issue and a trash dump. Planner Frank Mahnic said
if developers are responsible -- and he believes there are responsible
developers -- they would set aside open space on their own. He said the
ordinance is too restrictive and that he doesn’t like the county telling
anyone how much land they have to leave undeveloped.
“We’re taking land away from the developer,” he said.
The two planners who switched positions both said the current ordinance is
Bucko said a provision in the ordinance that he missed when it was worked on
at the committee level would require a 50 foot access to the open space. The
means that developers will lose nearly a full lot width just to set aside
land to get to the open space, he said.
Bucko also said he has no problem withdrawing the ordinance and telling the
county commissioners how it needs to be changed.
Similarly, Poparad said everyone is in agreement that the county needs a
green space ordinance, but that the current one is vague and that he has a
problem telling someone “they can’t build their house in the woods.” He said
the issue is too serious not to devote more time to it.
“You’re acknowledging it has flaws but we’re going to pass it anyway?”
Poparad asked Breitzke.
But planner Mike Burns said the ordinance can be changed as needed. “It’s a
good start,” he said.
Biddinger said no one has come up with any better alternative. “In the end,
do we have a bad ordinance? I really don’t know,” he said, adding that the
only way to know for sure is to put the ordinance to work.
But Biddinger also listed the following flaws with the ordinance: It
provides no innerconnectivity between natural features to allow wildlife
movement so that wildlife doesn’t conflict with homes and vehicles. In a
sense, it encourages farmland development due to the lower set-aside
requirement. And it could place an unfair burden on plan commission staff
who will have to delineate just what constitutes natural areas. Biddinger
said he wants to keep the ordinance a work in progress. “I don’t think it’s
good enough,” he said.
In his report summarizing the history of the ordinance and how it would be
applied, Plan Commission Executive Director Robert Thompson said the plan
commission and staff will be going through a learning process as the
ordinance is put into effect. But he added that this is no different from
the county’s Planned Unit Development ordinance, which the planners
revisited nearly one year after it was adopted.