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 up.

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 ordinance.

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 its flaws.

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 some builders.

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.

Planners Divided

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 flawed.

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.

Posted 10/14/2004