Loading...
HomeMy WebLinkAboutLetter to Suzanne Dillion from Robert Hepler of hartzog Barker Hepler & Saunders 2/18/91 HARTZOG, BARKER, HEPLE$ & SAUNDERS ATTORNEYS AT LAW ROBERT J. HEPLER 118 NORTH MAIN STREET Or COUNSEL DAVID L. SAUNDERS LARRY w. BARKE3 GOSHEN, INDIANA 46526 PHILIP C. BARKER JAMES W, KOLBUS ROBERT B. HARTZOO YIel033.3181 (1937.10q2) MARK A.ARMSTRONQ February 18, 1991 Susannah H. Dillon 507 Cornwall Court Carmel, Indiana 46032 Dear Mrs . Dillon, I have reviewed the papers you sent to me concerning the adoption of the updated Comprehensive Plan for the Carmel-Clay Planning District. Your observation , as well as that of the staff and the newspaper account, quite correctly identify the Comprehensive Plan and its purpose . Under the amendments to the Zoning Ena- bling Law, it was made very specific that is not a land control ordinance . It is a series of guidelines established by resolu- tion, and therefore does not have the binding affect of law as would an ordinance . You specifically asked about the question of taking by the adoption of the Comprehensive Plan . Strictly speaking, it would take the adoption of an ordinance changing the regulation of lot sizes , or the specific amendment to the zone map to get into the question of taking . I do not feel that the amendment to the Com- prehensive Plan meets this test, and therefore would not fulfill the basic requirement of an attack on taking. It has been pointed out numerous times in your materials , and elsewhere, that the Comprehensive Plan guides and leads the Plan Commission toward their subsequent actions . This is very true and a good statement of the purpose of the Comprehensive Plan . It is just a guide and is not binding upon the regulations of any specific zone , or upon the zoning of a specific lot or the regulations concerning that lot. I believe it would be very dif- ficult to attack a paragraph of the Comprehensive Plan on the basis that it constitutes a taking of a specific piece of real estate . Zoning ordinances and zoning regulations thereunder have been recognized by the law as a taking . This follows the theory that a specific piece of ground is affected by that ordinance and its development restricted thereby. Since the Comprehensive Plan does not relate to any specific piece of real estate, but to a general recommendation of a zoning district and its regulations, I do not feel that it could properly be considered under the taking law as it now exists . In specific answer to your question, I do not feel that the requirement and recommendation of the Comprehensive Plan that the continuation of the requirement that single family residential structures will be allowed on parcels of only one acre or more would constitute a taking. It would continue the present state- ment of the Comprehensive Plan and would merely extend that to the circumstances surrounding sewer, as well as non-sewer, lots . Actually the change to a smaller lot in the update would perhaps be more likely to even raise the question of taking, since it is a change from the existing Comprehensive Plan that you indicate has existed since 1985 . Neither of these proposed changes ap- pears to me to qualify for a violation of the taking theories. At such time as the Plan Commission , and the Legislative Body, should elect to consider adopting new standards in the Zoning Ordinance , or rezoning a lot to a more restricted stan- dard, the question of taking would be possible . To consider what a given court at a given time might determine , is entirely up to the facts and far outside the scope of anybody' s conjecture at this time . I trust that this responds to your inquiry and clarifies your concerns over the status of action on the Comprehensive Plan. If I can be of further assistance to you, do not hesitate to contact me . Very truly yours, (:!:" BARKS/ HEPLER & SAUNDERS Robert J . ep er RJH/fh