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Friday, February 09, 2007

Ind. Law - Still more on "Dispute raises concern about new state law"

Updating the ILB entries from Feb. 4th and 7th about an unidentified (by the NWI Times) "new state law that gives landowners more strength to challenge government actions involving their property", and its impact on a zoning dispute in Porter County, Vicki Urbanik of the Chesterton Tribune has a story that reports:

The state law that prompted Tuesday’s decision, I.C. 36-7-4-1109 [SEA 135 from the 2006 session (P.L. 49-2006)], was passed in last year’s session of the Indiana Legislature. Rinkenberger said although the language is highly convoluted, her interpretation is that once a property owner files an application for a particular use -- such as primary plat for a subdivision or a building permit -- the zoning in effect at that time applies, unless the government can prove that a rezone would not be detrimental to the property owner.

In this particular case, the Porter County Plan Commission filed a petition to rezone the I-2 land in August. In October, the Buchers’ DBL Development filed a petition for a primary plat for a light industrial park on the property.

When the plan commission first discussed rezoning the land -- at the same meeting at which they approved a residential subdivision for the Buchers on the adjoining parcel -- it was noted that because the planners’ upcoming agendas were so full with new subdivsions, it would take several months before the plan commission could even hold a public hearing on the case.

Rinkenberger said that if the planners and the commissioners completed the process of rezoning before the primary plat was filed, then the state law in question would not have applied. But once the primary plat was filed, she said the rezoning petition should have been withdrawn because the land was still zoned I-2.

Rinkenberger said she wasn’t aware of the state law until just recently, after the commissioners voted 2-1 to rezone the land to residential, when the case went back to the plan commission. In two separate votes, the plan commission voted 5-4 to recommend against the rezoning.

What’s Progress?

Harper noted that the plan commission has won some favorable court rulings in lawsuits. But, citing the new state law, he also indicated that he felt this would be one case in which the county couldn’t win.

He said he’s disappointed that the legislators passed the bill last year, since the new law affects the ability of every plan commission in Indiana in its authority to rezone land and control growth.

He went on to note that the Bucher case has been called controversial, in part because those who oppose the rezoning have argued that when the Buchers bought the I-2 property, they had the expectation that they would be able to use the property as zoned.

But Harper turned the tables a bit and cited the residents now fighting the Illiana Expressway. He said if the expectation of zoning is the standard, then “what about the expectation of people in south Porter County” to expect to continue to live in a rural environment.

Cramming residential properties next to an industrial park isn’t everyone’s view of progress, he said.

“Progress to one man isn’t progress to another,” he said.

For her part, Knoblock said she has nothing against the Bucher family, but only felt the parcel should be rezoned residential because residential developments now surround the property on three sides. “I wouldn’t want to live there” with an industrial park next door.

With the zoning now settled, the plan commission is set to consider the primary plat for the industrial park at its Feb. 14 meeting.

Posted by Marcia Oddi on February 9, 2007 08:53 AM
Posted to Indiana Law