PENDLETON — Pendleton Town Council unanimously approved rezoning almost 98 acres from a Planned Unit Development (PUD) classification back to agriculture during a special council meeting Feb. 26.

The council took the action after an attorney representing the property owner and developer said legal action could result if it did so.

“We would very much prefer to avoid litigation, but we don’t see any other option if this ordinance moves forward,” said Thomas Bedsole, attorney with the Indianapolis firm Frost Brown Todd.

The property involved is located east of County Road 600 West and south of State Road 38. The area became known as the Fosters Park PUD after the PUD was created by town ordinance in 2004 for residential development.

The PUD includes development standards that supersede the town’s regular zoning ordinance.

A primary plat of the development also was approved for the site in 2004.

The development was never built, however, and the plat expired in 2008. The PUD, because it is an ordinance, did not automatically expire.

The property owner, Franklin Urbahns, and Pendleton Development LLC submitted a new primary plat on Feb. 13, the day of the council’s most recent regular meeting.

Town attorney Jeffrey Graham said it would take time for the town to review the new plat and consider its implications.

The zoning change then became one of two items on the agenda for the Feb. 26 special meeting.

At that meeting, the council did not discuss extensively the rationale for changing acreage back to agricultural zoning, but it had done so previously, saying the action was needed so the town could have a say in any development that were to occur there now.

The ordinance written to change the zoning states:

• “In the more than 15 years since the adoption of (the Fosters Park PUD), the conditions in around the Fosters Park Planned Unit Development have been significantly changed owing to, in part, the number of new homes in the Foster Branch Ridge and Foster Branch Woods areas, as well as the 67th Street Extension Plans.”

• “The Foster Park PUD does not align with the Town of Pendleton’s 2018 Comprehensive Plan, as it is not innovative in design or development type, nor reflect the high-quality residential guidelines called for in the Comprehensive Plan for recent developments, as demonstrated in the nearby neighborhoods of Foster Branch Ridge, Foster Branch Woods and Fox Run.

• The Fosters Park PUD is not compatible with subsequently adopted planning documents such as the Town of Pendleton 2017 Bicycle and Pedestrian Master Plan and the 2015 State Street/38 Corridor Study …”

• The lots, housing sizes and neighborhood design do not comport with the character of the surrounding area of the Town of Pendleton, do not comply with the Town’s Comprehensive Plan, and would negatively affect property values of neighboring areas as (1) the Foster’s Park PUD road width of 26 feet is too narrow; (2) the PUD’s proposed density of up to 5 units per acre are grossly incongruent with neighboring with neighboring communities which have a density of up to approximately 0.9 units per acre; (3) in stark contrast to neighboring communities, the PUD contemplates no maximum lot coverage, and permits vinyl siding on structures.

Thomas Bedsole, attorney for the Urbahns and Pendleton Development, spoke prior to the vote and said its his and clients’ position that “our zoning rights vested on the filing of the primary plat on this property.”

“Now, by moving forward with this zone map change, which is proposed, you’ve left us in an untenable position, because we can’t move forward with the development that we have unless we’re absolutely certain about what the zoning rights are because you can’t find a builder, you’re not going to go to a bank get a loan, you’re not going to put literally millions of dollars of infrastructure in if you’re uncertain of what the zoning is.

“So in this case, if you pass this, the developer’s not going to have any choice at all but to pursue a declaratory judgement that says the PUD ordinance applies, and any zoning change does not apply.

“That to us feels like a big waste of money at this point. It feels like a waste of our money, it feels like a waste of your money, because we’ve got the plat filed. Now, if you’re taking the position that the plat’s not sufficient, it wasn’t complete when filed, that’s OK, we can litigate that, too, right. We can litigate the whole thing. But it just doesn’t seem like a productive use.”

Bedsole then said he and his clients, as previously stated, would prefer to work together with the town to improve the plat and address town concerns.

“But taking it back, and taking the position that we’ve lost our zoning somehow or the zoning doesn’t apply, or just introducing this ambiguity into it, makes it an untenable position for the developer and landowner, such that it really leaves us no choice, given the significant investment that’s in the property now, and given that we believe our zoning rights are vested. … We would very much prefer to avoid litigation, but we don’t see any other option if this ordinance moves forward.”

Before calling a vote, council President Chet Babb said the town’s motivation with the ordinance in simple: “We’re trying to look ahead, is what we’re trying to do, and protect all the property owners.”

Councilwoman Jessica Smith said “just because we amend it tonight doesn’t prevent us from changing it back to residential or something else at a different time.”

Graham agreed with Smith, adding that on Feb. 13, “the staff even discussed perhaps a future PUD more in line with the comprehensive plan would be considered by the plan commission and council, so you’re absolutely correct.”

Several residents from developments near the Fosters Park area have attended meetings, expressing concerns, many of which are included in the new ordinance, such as lot sizes, square footage and price.

“We’re not against development so long as it’s like development,” Gary Brammer said.

He said another issue is safety at the intersection of County Road 600 West and State Road 38.

“Let’s get the infrastructure finished and ready and then bring the development in.”

Bedsole declined to comment any further after the meeting, stating he would have to check with his clients before stating anything beyond the comments made during the meeting.