« Ind. Gov't. - Yet more on "State group appears victor for Lincoln Museum items" | Main | Environment - "Spill renews debate over coal ash: Toxicity, slurry pond safety are questioned" »

Saturday, December 27, 2008

Ind. Decisions - "Rose Hill Estates residents lose; Plan Commission wins on appeal"

The Court of Appeals decision Dec. 24th in the case of Town of Chesterton Advisory Plan Commission v. Roger V. Abraham, Jr. et al (NFP) (see ILB summary here) was the subject of a story reported by Luke Nevers in the Dec. 26th Chesterton Tribune. Some quotes:

It took the better part of the year, but in the end the Chesterton Advisory Plan Commission won, residents of the Rose Hill Estates subdivision lost, and Porter Circuit Court Judge Mary Harper has found herself reversed.

On Wednesday the Indiana Court of Appeals sided with the Plan Commission and overturned Harper’s ruling in November 2007 which vacated the secondary plat of Phase IV of Rose Hill Estates, a planned unit development located on the north side of 1100N east of Bethlehem Lutheran Church.

Harper issued her ruling vacating Phase IV of Rose Hill—otherwise known as Lot 73—after residents of the subdivision petitioned for a vacation on three grounds: that the primary plat, approved by the Plan Commission in August 2002, shows only a blank spot for Lot 73 and does not specifically reference the 48 townhouse units which developer Randy Hall had proposed building there; that Hall had given residents reason to believe that Lot 73 would remain an undeveloped nature preserve; and that the Plan Commission did not hold a public hearing prior to approval of the secondary plat.

The Rose Hill PUD ordinance, endorsed by the Plan Commission and approved by the Town Council, does specify a maximum of 48 townhouse units in 24 structures on Lot 73—without, however, indicating their actual number and location—and required Hall to appear before the Plan Commission to secure secondary plat to settle those issues before he could build.

The Plan Commission subsequently approved the secondary plat for Lot 73 in March 2006, over the objections of Rose Hill residents, who remonstrated on the grounds that the secondary plat differed from the primary plat in that the latter only showed a blank spot. The residents also protested the fact that they were not allowed formally to voice their objections in the context of a public hearing.

Harper sided with the residents and vacated the secondary plat approval and ordered Hall—if he still wants to build those 48 units on Lot 73—to start from scratch, submit a new primary plat, and answer residents’ remonstrations at a public hearing.

More from the story:
In overturning Harper, the Court of Appeals ruled on two substantive issues:

• Whether the Plan Commission even has standing to pursue an appeal in the first place. The Rose Hill residents contended that the Plan Commission does not.

• Whether Harper erred in granting the residents’ petition for vacation. The Plan Commission contended that she did.

The Court of Appeals disposed of the standing issue first and ruled that the Plan Commission does indeed have the legal right to pursue an appeal, for three separate reasons:

• The Plan Commission was a “party of record in the trial court” and therefore “shall be party on appeal,” the Court of Appeals stated.

•Indiana Code explicitly confers standing on the Plan Commission. Thus I.C. 36-7-4-1016, the Court of Appeals cited, indicates that decisions reached by a plan commission regarding plat approval “may be reviewed by certiorari procedures in the same manner as that provided by the appeal of a decision by a board of zoning appeals.” By extension, the Court of Appeals further cited, under I.C. 36-7-4-1011 “An appeal may be taken to the court of appeals from the final judgment of the court reversing, affirming, or modifying the decision of the board of zoning appeals.”

• Finally, the Rose Hill residents themselves “invited” the Plan Commission to appeal by naming it as a party to begin with. “Therefore, if there is any error in allowing the commission to pursue this appeal, the neighbors invited the error, and cannot now complain on appeal,” the Court of Appeals stated.

On the second issue—whether Harper erred in granting the residents’ petition for vacation—the Court of Appeals ruled that she did, because the Rose Hill residents failed to submit their petition for vacation within the statutory 30-day deadline.

In fact, the Court of Appeals ruled, the clock on the 30-day deadline began ticking not after the Plan Commission granted secondary plat approval in March 2006 but after it granted primary plat approval in August 2002, more than three years earlier.

“The claims the neighbors now make concerning the lack of specificity in the primary plat,” the Court of Appeals stated, “could have and should have been made at the time of primary plat approval in 2002. . . . (W)e acknowledge that the secondary plat of Lot 73 made substantive changes to the primary plat. However, it was known at the time the primary plat was approved that the 24 structures and 48 living units ultimately planned by the developer on and allowed by the ordinance on Lot 73 were not shown on the plat. If that did not comply with the Town of Chesterton subdivision control ordinance, the time to raise the issue was within 30 days of primary plat approval. Accordingly, the neighbors’ petition, filed nearly four years after the commission granted primary plat approval to the Rose Hill PUD, was untimely and the trial court had no jurisdiction to entertain the petition.”

Appeals Court Judge C. Riley did issue a dissenting opinion on the matter of standing, concluding that the Plan Commission has none “to participate in the judicial review of its own decision.”

Posted by Marcia Oddi on December 27, 2008 09:13 AM
Posted to Ind. App.Ct. Decisions