HomeMy WebLinkAboutCorrespondenceFILED
October 17, 2022
CLERK OF THE HAMILTON
CIRCUIT COURT
STATE OF INDIANA )
SS:
COUNTY OF HAMILTON )
ASHERWOOD CARMEL, LLC
Plaintiff,
V.
TODD E. KATZ, ET AL.
Defendants.
IN THE HAMILTON SUPERIOR COURT
CAUSE NO. 29D05-2106- PL-003911
ORDER DISMISSING SUMMERLAKES/DEERFIELD GROUP
DEFENDANTS AND APPROVING DISCLAIMER
Plaintiff, Asherwood Carmel, LLC ("Plaintiff'), by counsel, and defendants
Christopher J. Savage, Patti C. Savage, David W. Funke, Jane B. Funke, Jonathan
S. Courchaine, Kenneth R. Blankenberger, Marianne Erler, Sidney Dunn, Linda C.
Dunn, James Allen Redelman, Michelle Lynn Redelman, Gregory Brent Corn, Gail
Kathryn Corn, Lawrence G. Falender, Susan L. Falender, Michael Momcilovich,
Bridget G. Momcilovich, Gordon Brooks, Angela C. Brooks, Evan D. Bedel, Abbe
Bedel, Frederick D. Emhardt, Cynthia L. Emhardt, Alexander G. Godfrey, Patricia
E. Godfrey, Martin L. Milgrom, and Lesley B. Milgrom(collectively
"Summerlakes/Deerfield Group Defendants"), by counsel, and the Summerlakes
Property Owners Association, Inc. ("Summerlakes POA" ), by counsel, have filed
"Joint Disclaimer and Stipulation of Dismissal With Prejudice By the Plaintiff and
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the Summerlakes/Deerfield Group Defendants" ("Joint Disclaimer and
Stipulation").
And the Court, being duly advised, based on the consideration recited in the
Joint Disclaimer and Stipulation, including Exhibit 1 and Exhibit 2 attached
thereto, hereby DISMISSES WITH PREJUDICE the Summerlakes Deerfield Group
Defendants, the Summerlakes POA, and any other defendants who have stipulated
to dismissal, and finds that all defendants named in the litigation have either been
defaulted or dismissed disclaiming their right to contest the prayer for relief in the
Plaintiff's complaint and therefore ORDERS:
1. All portions of the "Restricted Property" as defined in the Complaint,
including Defendants' Parcels, each Individual Parcel, and Plaintiff's Property are
released from the 75 foot Setback Restriction set forth in the Complaint and are
bound instead to the restrictions set forth in Exhibit 1 of the Joint Disclaimer and
Stipulation.
2. Plaintiff will not be in violation of the Covenants identified in the Complaint
by developing, constructing, or permitting the construction on Plaintiff's Property of
single family dwellings that have front yard setbacks of less than seventy five feet
(75'), as long as all such development and/or construction complies with the front
yard setback of forty feet (40') as required by the City of Carmel Zoning Ordinance
and Exhibit 1 of the Joint Disclaimer and Stipulation, and the lot sizes are not less
than one full acre in area.
2
b}ttttese
6RIOR
Dated:
10/16/2022
The Honorable DAd jai°
Judge, Hamilton Su eitior .C;�u , , Room No.
i�
Copies to:
Counsel of Record
From:Conn, Angelina V
To:Mark Gradison
Cc:Huff, Brett
Subject:RE: Asherwood Approval
Date:Monday, December 27, 2021 1:40:00 PM
Mark – Thank you for this update, and please keep them coming. The City needs to know the status
of the court case, so there are no ‘hiccups’ with building permit reviews in June.
I have no issue with providing a conditional approval on the secondary plat, now.
Angie Conn, AICP | Planning Administrator
City of Carmel Planning & Zoning Dept.
1 Civic Square, 3rd Flr., Carmel, IN 46032
O: 317-571-2417 | W: carmeldocs.com
From: Mark Gradison <mgradison@gradison.net>
Sent: Monday, December 27, 2021 11:54 AM
To: Conn, Angelina V <Aconn@carmel.in.gov>
Cc: Huff, Brett <Brett.Huff@kimley-horn.com>
Subject: Re: Asherwood Approval
Angie,
The lawsuit is close to being resolved. Most of the individuals have agreed to the restrictive covenant
being removed. There are two groups that are represented by counsel and we are close to having
resolutions with those parties. We are hopeful to have all parties resolved by the end of January
based upon our current progression.
I would hope you would be able to give us a conditional approval as we will not be able to pull any
building permits to at least June. This will be resolved long before that is not a material issue to us
moving forward with the development.
Thanks
Mark Gradison
317.506.1037
Mgradison@gradison.net
www.gradisonbuilding.com
Sent from my iPhone
On Dec 27, 2021, at 11:39 AM, Conn, Angelina V <Aconn@carmel.in.gov> wrote:
Good morning, Brett – Yes, I had a nice Christmas; I hope you did, too.
Yes, most of my planning/zoning review comments relate to things that cannot be
addressed until plat is recorded; however, there is one Unresolved review comment
that we need a response/update to regarding the court of law case status and the 1960
restrictive covenants.
You can run a Report in ProjectDox of the Plan Review - Review Comments, to see what
the TAC Members show as Not Met or Unresolved.
(Please note that not all TAC Members use ProjectDox, at this time, so you will also
need to coordinate with others via email/mail; the tac members list online shows the
plan receipt preferences.)
Sincerely,
Angie Conn, AICP | Planning Administrator
City of Carmel Planning & Zoning Dept.
1 Civic Square, 3rd Flr., Carmel, IN 46032
O: 317-571-2417 | W: carmeldocs.com
From: Huff, Brett <Brett.Huff@kimley-horn.com>
Sent: Monday, December 27, 2021 8:59 AM
To: Conn, Angelina V <Aconn@carmel.in.gov>
Cc: Mark Gradison <mgradison@gradison.net>
Subject: Asherwood Approval
Good morning Angie,
Hope you had a good Christmas. Looking in at ProjectDox on my end and
appears all Reviewers have approved these plans except for the few outstanding items
left for planning dept. that cannot be addressed until plat is recorded. Is there
anything else outstanding you see from your end in order to get this project processed
as approved?
<image001.png>
Brett Huff
Kimley-Horn | 250 E. 96th Street, Suite 580, Indianapolis, IN 46240
Direct: (317) 912-4129 | Mobile: (317) 903-7787 | Main: (317) 218-9560 | www.kimley-horn.com
Connect with us: Twitter | LinkedIn | Facebook | YouTube
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STATE OF INDIANA
COUNTY OF HAMILTON
)
)ss:
)
HAMILTON COUNTY SUPERIOR COURT 5
CAUSE NO. 29D05-2106-PL-003911
ASHERWOOD CARMEL, LLC,
Plaintiff,
v.
TODD E. KATZ AND MARLO K. KATZ,
MICHAEL P. SWEENEY AND JANET
SWEENEY, BRAD C. EMSWILLER AND
JESSICA L. KLIMESH, DUFFIELD WEST
PROPERTIES LLC, SAM E. RINCKER,
MICHAEL O. CHANEY AND ANN F.
CHANEY, YING LYU, JOHN DOUGLAS
JONES JR. AND JOHN DOUGLAS JONES
SR., MATTHEW J. KELSEY AND ANNE
MICHAEL KELSEY, 9821 DEERFIELD
LLC, DICK HARPER AND JANET
HARPER, MICHAEL F. BOLIAUX,
CHRISTIAN H. JAEGER AND MOLLY L.
JAEGER, DAVID W. DOWLER AND
LORRAINE E. DOWLER, CHRISTOPHER
J. SAVAGE AND PATTI C. SAVAGE,
KATIE L. WATKINS AND JOSEPH O.
WATKINS, DAVID W. FUNKE AND JANE
B. FUNKE, JONATHAN S. COURCHAINE,
KENNETH R. BLANKENBERGER AND
MARIANNE ERLER BLANKENBERGER,
DAVID FOXWORTHY AND ALLISON
ANNE DAKICH FOXWORTHY, RYAN A.
REEDER AND EMILY J. REEDER, SCOTT
D. GLEASON AND KELLEY A.
GLEASON, TIMOTHY TROWBRIDGE
AND ALEXANDER HANSON
TROWBRIDGE, MARK DANIEL
BARNETT AND COURTNEY ROCHELLE
BARNETT, DAVID P. DETMER AND
IRYNYA POTAPENKO DETMER, BRIAN
WEAVER, JIMMY C. CRANE AND ALICIA
V. MARSANO CRANE CO-TRUSTEES OF
THE JIMMY AND ALICIA CRANE
REVOCABLE TRUST, SIDNEY DUNN
Filed: 1/14/2022 1:28 PM
Clerk
Hamilton County, Indiana
2
AND LINDA L. DUNN, THOMAS J.
MULLIGAN AND GAIL MULLIGAN,
JOHN HOPKINS AND MICHELLE
HOPKINS LIVING TRUST, JOSEPH S.
UPTON AND KIMBERLY S. UPTON,
FRANCISCO TRACENA AND HELEN F.
TRACENA, BRENDA L. CONSTANTINE
TRUSTEE OF THE BRENDA L.
CONSTANTINE REVOCABLE TRUST,
RICHARD L. VONDERHAAR, JAMES
ALLEN REDELMAN AND MICHELLE
LYNN REDELMAN, PETER CARLTON
AND JAMIE CARLTON, GREGORY
BRENT CORN AND GAIL KATHRYN
CORN, JERRY HOHN AND PATRICIA R.
HOHN, INNA KISLYUK, EDWIN
RUSSELL AND MARY RUSSELL, MALLAH
MORDOH AND ELIANA S. MORDOH,
MATTHEW J. ZIEGLER AND HAOYUE L.
ZIEGLER, JOHNATHAN AND MEGAN
FRUCHTE, STEPHANIE D. AND JARED S.
NUGENT, EVANS BRYANT BRANIGAN
III AND HEATHER A BRANIGAN, NOE
RAMOS, KENNETH H. FOIT AND LINDA
RAE FOIT, KYLE FISHER AND KATE
FISHER, JOE ROY, AVERY JOE ROY AND
ESTELA R. ROY, BILLY TRUONG AND
LANTHI PHUONG VO, HENRY A.
BERMAN AND VICTORIA D. BERMAN,
PAUL H. THORNE AND MABEL
THORNE, RACHEL J. JONES AND
CHARLES JONES III, THEODORE K.
BROWNING, JEFFREY NACE AND
NICOLE NACE, LAWRENCE G.
FALENDER AND SUSAN L. FALENDAR,
DAVID B. COOK AND LYNDA K. COOK,
MICHALE J. MERVIS AND JULIE A.
MERVIS, JOSHUA W. MERVIS AND LYNN
M. MERVIS, MICHAEL MOMCILOVICH
AND BRIDGE G. MOMCILOVICH,
STEVEN LUCAS AND JANELLE A.
LUCAS, GORDON BROOKS AND
ANGELA C. BROOKS, SUZANNE
BOUCHER COLLINS AND MARK A.
3
COLLINS, EVAN D. BEDEL AND ABBE S.
BEDEL, FREDERICK D. EMHARDT AND
CYNTHIA L. EMHARDT, ELAINE B.
KAPLAN AS TRUSTEE OF THE ELAINE
KAPLAN TRUST, KIM KWIOK YUM,
AARON A. KOPEL AND KRISTEN R.
KOPEL, GUISEPPE ZICHELLA AND
MARIA ROSARIA AGATINO ZICHELLA,
RAMA M. BALENGAJE AND NALINI R.
BELAGAJE, MEIXIANG CHEN, ALEX M.
AISEN AND CINDY FOX AISEN,
GREENBERG LLC, ALEXANDER G.
GODFREY AND PATRICIA E. GODFREY,
GERALD M. LANDE AND BETH SUSAN
LANDE, LOUIS BUDDY YOSHA, RONG
FAN AND JIHONG SUN FAN, ROLF P.
KREUTZ AND YVONNE KRUETZ,
ROBERT S. HUFFSTODT, MARTIN L.
MILGROM AND LESLEY B. MILGROM,
TIMOTHY A. ORIENT AND JAMES
BURDEN, YICHENG HE, ELLIOTT D.
LEVIN AND SUE G. LEVIN,
SUMMERLAKES PROPERTY OWNERS
ASSOCIATION INC., ET AL., AND ALL
PERSONS WITH AN INTEREST IN
CERTAIN REAL ESTATE IN THE CITY
OF CARMEL, INDIANA
Defendants.
CASE MANAGEMENT PLAN
The parties in the above captioned matter, by counsel, hereby tender this proposed Case
Management Plan for approval by the Court and for purposes of establishing dates and deadlines
pursuant to Local Rule 16.1(B):
1. Counsel will exchange preliminary witness and exhibit lists no later than 60 days
following approval of this Case Management Plan.
2. Final Witness and Exhibit Lists are due 60 days prior to trial.
4
3. Plaintiff shall disclose any expert witnesses no later than 150 days prior to trial.
Defendants shall disclose any expert witnesses no later than 120 days prior to trial.
4. Discovery shall be completed no later than 30 days prior to trial.
5. All motions for leave to amend the pleadings and/or to join additional parties shall
be filed within 120 days from the approval of this Case Management Plan.
6. Motions for summary judgment shall be filed no later than 150 days prior to trial.
7. Parties agree that mediation shall be completed no later than 60 days prior to trial.
8. Any pre-trial motions, including motions in limine, and/or pre-trial briefs, shall be
filed no late than 7 days prior to the final pre-trial conference.
9. In the event of a continuance of the trial date, the above cutoff dates shall roll over
to conform to the new trial date.
10. A final pre-trial conference shall be set for , 2023,
and a trial by jury is set for , 2023.
11. The parties anticipate three days for trial.
Respectfully submitted, Respectfully submitted,
/s/Elizabeth S. Schmitt
/s/ Frederick D. Emhardt
George H. Abel, II (#4159-49)
Elizabeth S. Schmitt (#30146-53)
EASTER & CAVOSIE
10455 College Avenue
Carmel, IN 46280
(317) 574-0828
gabel@easterandcavosie.com
eschmitt@easterandcavosie.com
(signature affixed with permission)
Frederick D. Emhardt (#10952-49)
EMHARDT LAW LLC
1905 South New Market Street, Suite 267
Carmel, IN 46032
(317) 840-4140
fred@emhardtlaw.com
5
/s/Anne Poindexter
/s/Anthony Ridolfo
(signature affixed with permission)
Anne Poindexter (#14051-29)
ALTMAN, POINDEXTER & WYATT LLC
90 Executive Drive, Suite G
Carmel, IN 46032
(317) 350-1000
apoindexter@apwlawyer.com
(signature affixed with permission)
Anthony Ridolfo (#22824-49)
HACKMAN HULETT LLP
135 North Pennsylvania Street, Suite 1610
Indianapolis, IN 46204
(317) 636-5401
aridolfo@hhlaw-in.com
APPROVED AND ORDERED:
_________________________________ __________________________________
Date JUDGE, Hamilton County Superior Court
From:Jane Funke
To:Conn, Angelina V
Cc:Lopez, Alexia K; Shestak, Joe; Reis, Paul; "Frederick Emhardt"
Subject:Public Comment for Asherwood File: Dockets PZ-2021-00003 PP and PZ-2021-00095 SP
Date:Wednesday, July 14, 2021 2:37:14 PM
Angie,
I spoke this morning with Alexia Lopez about the next steps in the approval process for the proposed
Asherwood development. I had noticed the Secondary Plat was filed on May 24, showing 40’ front
setback lines, and that your memo to the file says there will be no further public hearings on the
matter.
As the developers told the Plan Commission on March 16 that they intended to do, on June 4 they
filed a lawsuit in Hamilton Superior Court against all other property owners in the 240 acres covered
by covenants established in 1960, seeking to invalidate the provision for front setbacks of 75’.
(Cause # 29D05-2106-PL-003911) As recorded in the meeting minutes, Plan Commission Counsel
Paul Reis noted:
If they are not successful in their court request, then they are required to have a 75’ building
setback. If we approve the primary plat with a 40’ building setback, it would be conditional
on the petitioners getting the court to vacate that [75’] requirement.
So that all groups within the City participating in the ongoing review and approval process are aware
of this condition, I am submitting this reminder for the record which Alexia said would be
appropriate.
Of course there is no way to know the outcome of the lawsuit, but some defendants oppose the
developers’ contention that the setback provision should be declared null and void. Thank you.
Jane Funke
Deerfield
From:Jane Funke
To:Lopez, Alexia K
Cc:Shestak, Joe; Reis, Paul; "Frederick Emhardt"; Conn, Angelina V; aridolfo@hhlaw-in.com
Subject:Approval of Asherwood Secondary Plat: Lawsuit Pending, Set for Jury Trial November 2023
Date:Friday, January 21, 2022 2:27:27 PM
Attachments:Asherwood Setbacks Lawsuit Case Management Plan Approved and Trial Date Set for 11.27.2023.pdf
Asherwood Secondary Plat Recorded 12.29.2021 with 40 Foot Setbacks.pdf
Importance:High
Alexia,
Thanks for taking my call about the Asherwood Secondary Plat, which I discovered just today was
approved by the Plan Commission on November 15 and recorded on December 29. The Plat (PDF
attached) appears to have been approved and filed showing 40’ front building setbacks. This is in
violation of the provision for 75’ setbacks in the 1960 Covenants encumbering an area of 240 acres
that includes the Asherwood development. As reported previously, the developer sued all property
owners in June asking the court to declare the setback provision null and void, and the lawsuit is
pending in Hamilton Superior Court. On Wednesday Judge Najjar issued an order (PDF attached)
approving the proposed Case Management Plan and setting November 27, 2023 as the date for the
start of an expected three-day jury trial.
Plan Commission Counsel Paul Reis said during the March 16 public hearing that if the plat were to
be approved showing 40’ setbacks, it was to be conditional upon a court granting the developers’
request to remove the 75’ provision from the Covenants. I do not see such a condition on the
recorded document, but perhaps in investigating this you can determine that this has been done.
I have included cc: on this message the two attorneys representing the defendants who demanded a
jury trial on this matter, Fred Emhardt and Anthony Ridolfo. Thank you.
Jane
From: Jane Funke <jbfunke@sbcglobal.net>
Sent: Wednesday, July 14, 2021 2:37 PM
To: 'aconn@carmel.in.gov' <aconn@carmel.in.gov>
Cc: 'alopez@carmel.in.gov' <alopez@carmel.in.gov>; 'jshestak@carmel.in.gov'
<jshestak@carmel.in.gov>; 'preis@carmel.in.gov' <preis@carmel.in.gov>; 'Frederick Emhardt'
<fred@emhardtlaw.com>
Subject: Public Comment for Asherwood File: Dockets PZ-2021-00003 PP and PZ-2021-00095 SP
Angie,
I spoke this morning with Alexia Lopez about the next steps in the approval process for the proposed
Asherwood development. I had noticed the Secondary Plat was filed on May 24, showing 40’ front
setback lines, and that your memo to the file says there will be no further public hearings on the
matter.
As the developers told the Plan Commission on March 16 that they intended to do, on June 4 they
filed a lawsuit in Hamilton Superior Court against all other property owners in the 240 acres covered
by covenants established in 1960, seeking to invalidate the provision for front setbacks of 75’.
(Cause # 29D05-2106-PL-003911) As recorded in the meeting minutes, Plan Commission Counsel
Paul Reis noted:
If they are not successful in their court request, then they are required to have a 75’ building
setback. If we approve the primary plat with a 40’ building setback, it would be conditional
on the petitioners getting the court to vacate that [75’] requirement.
So that all groups within the City participating in the ongoing review and approval process are aware
of this condition, I am submitting this reminder for the record which Alexia said would be
appropriate.
Of course there is no way to know the outcome of the lawsuit, but some defendants oppose the
developers’ contention that the setback provision should be declared null and void. Thank you.
Jane Funke
Deerfield