Public Comment, Lawsuit Pending, Set for Jury Trial November 2023From: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