HomeMy WebLinkAboutOrder - final judgment 3-21-02
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Jacob Acquisition v. Carmel/Clay Plan Commission
Cause No. 29D02-0105-MI-316
Page 2
of 35.77 unimproved acres, more or less, located in Clay Township
in Hamilton County, Indiana, which is zoned R-1 under the Zoning
Ordinance of the City of Carmel, Indiana (the "City"). (Petition,
~~ 1-4 and Exhibits A and B) ·
2.. The Developers filed with the Plan Commission an
Application for Primary Plat of the Real Estate on December 1S,
2000, requesting Plan Commission approval of the "Bonbar Place"
subdivision pursuant to the City's ordinances ("Application").
This Application proposed a subdivision of the Real Estate into
75 lots on the 35.77 acres, which acreage included an approximate
11.76 acre pond that had been created by INDOT as a "borrow pit"
during the construction of 1-465, and the required 50-foot
buffer. (Petition, " 5, 6, and 13 (b) and Exhibits Band C;
Primary Plat at Return, Tab 43 - aerial photograph; Application
at Return, Tab 14; Feb. 20 Minutes at Return, Tab 51, p. 5).
3. The primary access point to the proposed subdivision is
at 101st Street, which begins at College Ave and extends approxi-
mately 4 blocks east to its stub at the Real Estate (Traffic
Analysis at Return, Tab 3D, p. 3; Application at Return, Tab 14;
Petition at Exhibit C) ·
4. The only other access point for the proposed subdivision
is located toward the north end of the western border of the Real
Estate on Marwood Trails Drive, a 2 block long street located in
the middle of the existing 1S-1ot Marwood Trails subdivision that
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Jacob Acquisition v. Cannel/Clay Plan Commission
Cause No. 29D02-0105-MI-316
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is stubbed into the Real Estate (Tab 30, p. 3; Petition, "1, 13
and Exhibit B; Tab 43 - aerial photograph). Access to 106th
Street could then be gained be traversing six additional inter-
sections throughout the neighborhood streets of the surrounding
subdivisions (Supplemental Information at Return, Tab 60 [March
30 letter, p. 2]; Points of Remonstrance at Return, Tab 63,
["Route for Motorists going North/East]; Traffic Analysis at
Return, Tab 30, p. 3).
5. Interstate 465 forms the Real Estate's southern boundary
and the Monon Trail provides its eastern boundary (Traffic
Analysis at Return, Tab 30, p. 3; Primary Play at Tab 43 -aerial
photograph; Petition,'l and Exhibit B). College Meadows Subdivi-
sian bounds the northern side of the Real Estate, although there
is no access between the two properties (Id.). On the west side,
lOlst Street enters the Real Estate on the south end, approxi-
mately 100 yards from 1-465 (Id.). Cornell Street extends south
for that same 100 yards from 101st Street at the proposed en-
trance and dead ends into 1-465 (Id.). The parking lot of the
Korean Presbyterian Church extends north of lOlst Street and
provides the Real Estate's western border up to its half-way
point (Id.). The remaining half of the western border is sur-
rounded by the existing subdivision of Marwood Trails (~.
6. The Developers' request for plat approval was scheduled
for a meeting of the Technical Advisory Committee ("TAC") on
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Jacob Acquisition v. CarmeVClay Plan Commission
Cause No. 29D02-0105-MI-316
Page 9
questioned the traffic study (Id.). He once again asked the
engineer to confirm that 90% of the existing traffic turns south,
which the engineer did (Id.) Mr. Houck emphasized, "from a
traffic standpoint, there will be an impact on the existing
neighborhood. The design is not very well laid out from a
health, safety, and welfare standpoint" (Id. at 4) ·
20. Committee Member John Sharpe agreed and stated, "The
safety and welfare of the surrounding neighborhood are not met by
this development." Member Madeline Fitzgerald concurred and
suggested forwarding the item to the full Plan Commission with a
negative recommendation" (Id.).
21. The Subdivision Committee invited the Petitioners to re-
design portions of the proposed subdivision in light of the
Committee's negative comments and re-notice it for a new public
hearing (Id.). The Petitioners' attorney declined the invitation
and demanded a vote on the Application (Id.). The Committee
voted unanimously to forward the item to the full Plan Commission
with a negative recommendation (Id.).
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22. The Application then came again before the full Plan
Commission for a vote on April 17, 2001. At this April 17 meet-
ing, the Department submitted a written Department Report, which
recommended that the Plan Commission disapprove the plat, based
on inadequate traffic access to the subdivision through the
existing County streets and irregularity in shape of lots #1, #2
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facob Acquisition v. Carmel/Clay Plan Commission
Cause No. 29D02-0105-MI-316
Page 10
and #3. The Department Report cited standards contained in
sections 6.3.6, 6.3.21, and 6.5.2 of the City's subdivision
control ordinance. (Petition, ,~ 24-25 and Exhibits D and G) ·
23. The Department's recommendation that the Plan Commission
disapprove the plat relied in pertinent part on the following
assertion in the Department Report: "Neither point of access
(Marwood Trail or 101st Street) for the Plat is from a through
street (a feeder, arterial, or collector) which is in violation
of the requirement of the above noted section [Section 6.3.21]
that all access for a subdivision of greater than 14 lots be from
a through street unless the Plan Commission finds it to be
appropriate. The Department does not think that it is appropriate
for a 75-1ot subdivision to have access from Marwood Trail
because it is a street that winds between 2000-feet and 1.17
miles through a well established neighborhood to College Avenue
and 106th Street respectively. Using Marwood for one of the
access points would cause a distribution of traffic in the area
which would not be favorable to the health, safety, convenience
and welfare of the adjacent neighborhoods in this part of the
County." (Petition, ~ 2S and Exhibits D and G) ·
24. The Department's recommendation that the Plan Commission
disapprove the plat also relied in pertinent part on the Applica-
tion's failure to comply with Section 6.52 of the subdivision
Control Ordinance, which provides that "Sidelines of lots shall
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Jacob Acquisition v. Carmel/Clay Plan Cormnission
Cause No. 29D02-0105-MI-316
Page 11
be approximately right angles to straight streets and on radial
lines on curved streets. Some variation from this rule is
permissible, but pointed or very irregular lots should be
avoided. The Department found that the Application did "not
display the minimum lot standards on lots #1, .#2 and #3 in that
they are very irregular in shape and do not conform to the
standards of Section 6.5.2" of the Subdivision Control Ordinance.
25. Since the public hearing had been closed at the February
20, 2001 meeting and the Developers had opportunities to present
evidence at the February 20, March 6 and April 10 meetings
(Petition, ~~13 and 19-23), the Developers were given no opportu-
nity at the April 17 meeting to address or otherwise speak in
opposition to the Department Report. (Petition, ~ 26) ·
26. At the conclusion of the April 17 meeting, the Plan
Commission voted unanimously, fourteen to zero, to deny approval
to the Developers' proposed subdivision, with each member filling
out and signing a "Findings of Fact Form for Primary Plat Consid-
eration."
(Petition, ~~26 and 33 and Exhibit H) .
27. On May IS, 2001, the Plan Commission executed the written
Decision (the "Decision") that contained findings that the
proposed subdivision plat failed to conform to standards con-
tained in sections 6.3.21, 6.3.6, and 6.5.2 of the subdivision
control ordinance. In pertinent part, the Plan Commission found
that that "neither point of access provided for in this Plat is
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Jacob Acquisition v. CarmeVClay Plan Commission
Cause No. 29D02..Q 105-MI-316
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from a through street (namely a feeder, arterial, or collector),
in violation of the requirement of this Section [Section 6.3.21]
that all access for a proposed Subdivision having more than 14
lots should be from through streets unless the Commission finds
it appropriate to allow for access to be from the continuation of
existing, planned, or platted streets on adjacent tracts, or from
the extension of proposed streets to the boundary of the Subdivi-
sion. The Commission further finds that it would not be appropri-
ate to allow a 75-1ot Subdivision to have access through Marwood
Trail for the reason that said Marwood Trail does not even
connect directly to a through street, but has access to the
nearest through street (College Avenue) only via a curvilinear
path (using Guilford Avenue and 101st Street) that winds for
2,000 feet through well established, adjacent neighborhoods, and
the use of such a street for one (1) of the two (2) required
access points for the proposed Subdivision would unduly burden
the neighborhood streets in those adjacent neighborhoods of the
County...." (Petition, ~35 and Exhibits D and I).
CONCLUSIONS OF LAW
28. To the extent that any of the following Conclusions of
Law are deemed to be Findings of Fact, or that any of the forego-
ing Findings of Fact are deemed to be Conclusions of Law, the
same shall be considered as having been set forth herein as
Findings of Fact or Conclusions of Law Respectively.
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Jacob Acquisition v. Carmel/Clay Plan Commission
Cause No. 29D02-0I05-MI-316
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tioners the opportunity to redesign the subdivision rather than
have the Committee or full Plan Commission vote on it. The
Petitioners rejected the offer and demanded a vote. The Develop-
ers cannot now complain that they did not know what issues needed
to be addressed for an approval. Yater v. Hancock County Planninq
Commission, 614 N. E. 2d 568, 574 - 575 (Ind. Ap'p. 1993) (developers
cannot find fault with plan commission for applying standards at
primary plat stage where developer asked for decision on its
application and stated it had "no inclination" to comply with
conditions recommended by subcommittee) ·
37. It is well-established law that property owners are
charged with knowledge of the applicable subdivision ordinance.
Board of Zonina Appeals v. Leisz, 702 N.E.2d 1026, 1030 (Ind.
1998). The Petition contains no allegation that the Developers
did not know the content of, or had no access to, the Ordinances.
The Department advised the Developers and the Subdivision Commit-
tee as early as the March 6, 2001, Subdivision Committee meeting
that the committee should consider said Section 6.3.21.
38. This Court further finds that the Developers' claim that
the Plan Commission's decision was pretextual (Petition,~~ 27,
38, 42; Motion for Leave to File Supplement Evidence, ~7) is not
sufficient to rise to the level of a due process or equal protec-
tion claim. Equicor Development, 758 N.E.2d at 38. Rather, the
assertion must be supported by well-founded allegations of
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Jacob Acquisition v. Carmel/Clay Plan Commission
Cause No. 29D02-0105-MI-316
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improper personal considerations, such as race or gender discrim-
ination or political retaliation. Id.
39. With regard to the Developers' allegation that the denial
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of the Application constitutes a taking, the Ordinance only
provides that all access for a proposed subdivision having more
than 14 lots should be from through streets.
(Return at Tab 3>
Section 6.3.21). There is no such provision in the Ordinance
that similarly regulates access for proposed subdivisions having
14 or fewer lots. The Court concludes that the ordinance would
permit the development of two subdivisions on the Real Estate,
with each containing up to 14 lots, or a total of 2S lots on the
Real Estate. Therefore, the refusal of the Plan Commission to
permit the development of a 75-1ot subdivision on the Real
Estate, as proposed by the Developers, does not constitute a
taking of the entirety of the Real Estate, and does not deprive
the Developers of their constitutional rights or privileges.
Younq v. City of Franklin, 494 N.E.2d 316, 317-31S (Ind. 19S6),
reh. denied.
JUDGMENT
For the foregoing reasons, the Court finds that the Developers
have not met their burden to demonstrate that the decision of the
Plan Commission was clearly erroneous or that the decision was
incorrect as a matter of law. The Court hereby enters judgment in
favor of Respondent Carmel/Clay Plan Commission, and against