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Home My WebLink AboutResponse to Court Decision Carmel/Clay Plan Commission do Barbra Myers, President March 15, 1995 Dear Members of the Plan Commission, I am disturbed by Judge Jerry Barr's decision allowing Davis Development to continue with their plan to develop the plot of land east of Shelborne between 96th and 106th streets. As I have stated earlier, Davis' proposal will strain the infrastructure of the community including sewers, roads, and other municipal resources. Judge Barr's decision creates a dangerous precedent for the future development of Carmel. If allowed to stand Judge Barr's decision will encourage Developers in Carmel to propose high density developments at the expense of the local property values and over congest potentially all portions of Clay Township. These types of developments are unwelcome by the established local residents. This development represents Davis' attempt to turn a quick profit without considering the strain on the local community, the participation of the local residents, or the long range planning to keep Carmel an attractive community. I strongly encourage you to continue in your resolve to reject Davis Development's proposal for the land in question. I fully support appealing Judge Barr's decision to protect all of Carmel's future development. Finally as an alternative I suggest that the land be developed by the city or township as a park for the ever increasing number of children in the local community. I eagerly await your decision regarding this matter, and have confidence you will continue to preserve Carmel's communities. Sincerely, IP Robert Tapp N 10407 Trewithen Carmel, IN. 46032 Ramona Hancock Secretary, Plan Commission / ,z/ 1 Civic Square Carmel, IN. 46032 March 14, 1995 Dear Ms. Hancock, Would you please copy and distribute the enclosed letter to all members of the Carmel/Clay Plan Commission for the March 21, meeting. Thank you for your cooperation. Sincerely, Robert Topp \ STATE OF INDIANA ) IN THE HAMILTON SUPERIOR COURT NO. 2 )SS: COUNTY OF HAMILTON ) CAUSE NO. 29D02-9406-MI-233 r, DAVIS DEVELOPMENT, L.P. , an "., <;]. 1 Indiana Limited Partnership, ) ;s Petitioner, 1,1 vs. i -:� 1 THE CARMEL/CLAY PLAN COMMISSION, ; : =,7 <', - Respondent. PRAECIPE FOR RECORD Comes now the Respondent, The Carmel/Clay Plan Commission, by counsel, and praecipes the Court and the Clerk of the Court to prepare and certify the entire record of the proceedings in this action, including any and all written pleadings filed herein. The record of the proceedings must be filed within ninety (90) days of the date of filing of the praecipe which is on or about the M. day of te,lp , 1995. Re ?c -. y submitted, f i- G. ^ 1111111 . B ,ers, Attorney for The Carni- lay Plan Commission CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing pleading has been forwarded to Charles D. Frankenberger and James Nelson, NELSON & FRANKENBERGER, 3021. E. 98th S r-et, Suite 220, Indianapolis, Indiana 46280 by first s United States mail this \tip day of March, 1993 . filliwillini • •rdon D Byers Gordon D. Byers (3065-29) 136 South 9th Street Suite 318 Noblesville, IN 46060 (317) 773-3221 .. ?D 'd f,7226 ELL LIE 'ON XVd SE- Ef UCG OJ E I :S I :HI o-9 I-'d�'L1 STATE OF INDIANA ) IN THE HAMILTON SUPERIOR COURT NO. 2 )SS: COUNTY OF HAMILTON ) CAUSE NO. 29DO2-9406-MI--233 DAVIS DEVELOPMENT, L.P. , an ) �,,L Indiana Limited Partnership, ) 3f Petitioner, ) FEB 42 W ) MA/ ^�� THE CARMEL/CLAY PLAN COMMISSION, ) � ) Respondent. ) ORDER GRANTING_MOTION FOR SUMMARY JUDGMENT AND REVERSING DECISION OF PLAN COMMISSION Come now Petitioner and Respondent, each by their respective counsel, for hearing on summary judgment filed by Petitioner. The Court, after reviewing the Petition for Writ of Certiorari, the Respondent' s Return on the Writ of Certiorari, the Petitioner's Motion for Summary Judgment, and the Respondent' s motion in opposition thereto, and after hearing oral argument from both parties, now finds as follows: Z. FINDINGS 1. The real estate made the subject hereof consists of 139.02 acres, and is located in western Clay Township, north and east of the intersection of Shelborne Road and West 96th Street, in Hamilton County, Indiana (hereafter "Real Estate' ) . 2. Davis Development, L.P. , the Petitioner, is the contract purchaser of the Real Estate, and is authorized to represent the owners thereof in matters pertaining to the zoning of the Real Estate. -r ' ' l 2.c' c:1 1 1 '.. 'flH '. u HCildC) .l :;3 l 3. On December 12, 1993, there was filed with the Carmel/Clay Plan Commission (hereafter "Commission" ) an application for primary plat approval under Docket No. 5-94-PP (hereafter "Application" ) ._ 4. The Application requested primary plat approval to develop the Real Estate in accordance with the applicable provisions of the Subdivision Control Ordinance, No. Z-160 of the City of Carmel, Indiana (hereafter "Subdivision Control Ordinance" ) . 5 . No variances from the Zoning Ordinance or the Subdivision Control Ordinance were requested by Petitioner or required. 6. The Petitioner, the Application and the primary plat made the subject of the Application fully and completely complied with all applicable requirements of the Zoning Ordinance and the Subdivision Control Ordinance, and there was no evidence to show lack of compliance therewith. 7 . The Application was reviewed and approved by the Technical Advisory Committee. S . The Commission's decision denying the Application was illegal. 9 . There are no genuine issues of material fact. II. LEGAL CONCLUSIONS A plan commission has no discretion to approve or disapprove a subdivision plat; instead, the plan commission may only determine whether the plat conforms with the requirements of the subdivision control ordinance, Bosman v. Asea .Pian Commission of St. Joseph County, 312 N.E. 2nd 880 ( 160 Ind. App. 605, 1974) . Subdivision control ordinances must contain specific and concrete standards 'l l 'A vl.t._. JLL ..:4 al iV Ud_8 11OG'dOD ",t '.3 TEN governing primary plat approval, Tippecanoe County Area _plan Commission v. Sheffield Developers, Inc. , 394 N.E . 2nd 176 (Ind. App. 1979) . Discretion in formulating standards should be exercised when an ordinance is drafted and not when it is applied; otherwise, discretion will serve only to render unpredictable and possibly inequitable decision, Tater v. Hancock Count Plannin Commission, 614 N.E. 2nd 568 (Ind. App. 1 Dist. 1993) . The requirement that zoning ordinances must contain concrete standards is founded and dictated by due process considerations, Yater v. Hancock County Planning- Commission, 614 N.E. 2nd 568 (Ind. App. 1 Dist. 1993) . A summary judgment is proper where there are no genuine issues material fact Trial Rule 56 of the Indiana Trial Rules and Procedure. III . CONCLUSION There are no genuine issues of material fact and, as a matter of law, Petitioner is entitled to a summary Judgment. It is therefore Ordered, Adjudged, and Decreed that the decision of the Plan Commission made the subject of the Petition for Writ of Certiorari is hereby reversed, and that the Petitioner's Application for Primary Plat filed with the Carmel/Clay Plan Commission under Docket Number 5-94-PP is hereby approved. So ORDERED this day of February,- 1995 . Jerry M: Bar_ J -ge Ham: -4ip r r Court No. 2 1 r (,lam_ 1 1^ KC'?E(`tti I ;'3 u.::1 • D-, Distribution: Gordon Byers 136 South 9th Street Noblesville, Indiana 46060 Charles D. Frankenberger NELSON & FRANKENBERGER 3021 East 98th Street, Suite 220 Indianapolis, Indiana 46280 .0 A VLc£ ALL LIE 'ON 'PE MEANCM NCUdCO L1:8 Ti 26-I H5.4