HomeMy WebLinkAboutHearing Brief
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HEARING BRIEF
IN RE: VILLAGE OF MT. CARMEL APPLICATION FOR
,FINAL APPROVAL OF FIFTH SECTION
I..
History of the Village of
Mt. Carmel
Planning for the Village of Mt. Carmel as a suburban community
was begun in March of 1954 with preliminary work and planning being
completed in April of 1956. The overall comprehensive preliminary
planning for the sub-division included water and sewage utilities approved
by the Public Service Commission of Indiana and was, i~ fact, the very
first privately owned and operated ~tility for service to an individual
sub-division" The First Section was approved by the then existing
HamiltonCounty Plan Commission on April 29, 1957, and the Second
Seciion by that same organization on April 25, 1958. The first 2 Sections
contained a total of some 60 lots. In the interim, between Second and
Third Section approval, the Hamilton County Pla,n Commis sion ceased
to exist and the Carmel Plan Commission came into being. The original
master plan for the Town of Carmel was passed and made effective on'
the 27th of October,' 1959" -Early in 1960, the developer s of Mt. Carmel
Subdivision submitted the overall preliminary plat to the ~ewly created
Carmel Town Plan Commission and it was approved as submitted including
a waiver of the minimum frontage on February 9, 1960. Almost immediately
thereafter, on March 28, 1960, the Third Section was submitted to the
manner.
II.
History of Fifth Section Final Plat Application
The final plat of the Fifth Section of Mt. Carmel Subdivision
was submitted on the bas is of the preliminary plat as approved and
in accordance with the prior approvals of the original Four" Sections
. to the Carmel To\Vl1 Plan Commission. After having been received, it
was assigned to the subdivision sub-committee which indicated general
agreement with the final plat of this section as submitted. . The
application came on for hearing before the Plan Commis sion on the
21st of March, 1972, at which time a number of issues were raised
relative to deficiencies in the plat according to the sub -division
control ordinance. Motion was made to approve the Fifth Section Final
Plat as submitted and the vote was' 8 members ln favor and 7 against
and the chair ruled that the motion did not pass and the application
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was denied. Of the six (6) nlemhers on the ~ub-committee present
at the time the application was heard, four (4) voted in favor of it,
one (1) voted against it and one (1) was absent. Thereafter, on April 3,
1972, by letter addressed to the Chairman of the Plan Commission, a
request was made for an immediate re-submission of the final plat of the
Fifth Section to the Plan Commission and on April 18,1972, the Plan
Commission unanimously voted to reinstate the application in old
business for additional hearing on the 16th of May, 1972.
III.
Ordinances 217 and Z31 requiring curbs, gutters al1d sidewalks
would be unreasonable as applied to the Mt. Carmel Subdivision and
would create an unnecessary hardship for the d~velopers:
Developers submit that an unnecessary hardship would be
created by the imposition of Ordinances 217 and Z31 as to this
subdivision for the follo'wing reasons:
L The Mt. Carmel Subdivision has been planned, surveyed
and set out in a preliminary plat which has previously been approved
by the Carmel Town Plan Commission on February 9, 1960, prior to
the passages of Ordinances Z17 and Z31.
2. The Mt. Carmel Subdivision was planned, el'evati,ons
determined, the shape and dimensions of lots determined, the layout
of streets, including roadway widths and gradients determined, and
considerable development work performed in obtaining proper
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drainage for the subdivision by tho proper grading of Iota and the
use of swails prior to the application for final plat approval of the Fifth
Section being fited.
3. A considerable portion of the Fifth Section is in rolling
terrain with some wooded areas and it would be impractical to construct
sidewalks in part of the area without removing trees and doing extensive
excavation work, not only requiring the additional expense but destroying
the asthetic beauty of the subdivision.
4. As shown bythe plans, the subdivision is not designed for
thru traffic, and, consequently, there is no heavy traf.fic through the
subdivision. The size of the lots run generally from 15, 000 square feet
up with large backyards allowing for children playing in the backyards. It
is notewor~hy that sidewalks encourage children to play.in the sidewalks
and street as opposed to the backyard areas which could in and of itself
create a safety hazard by the requiring of sidewalks in this area.
5.. There are no public schools in the area where the Mt. Carmel
Subdivision is located with might neces sitate use of sidewalks for
children walking to school, nor are any planned. Therefore, children
would either be driven to school on.a schoolbus or in the family automobile.
U. S. Highway #31 will separate the subdivision from Carmel.
6. The developers have incurred considerable expense in planning, .
surveying and constructing proper drainage according to their plan for
development of the subdivision prior to the requirements for curbs,
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gutters and sidewalks and has set a pattern for the sale price of lots
in the subdivisions' reliance upon the preliminary plat approval. The
developers will incur a substantial additional expense if they are required
to install curbs, gutters and sidewalks in the balance of the subdivision
and particularly, the Fifth Section, which will result in increased
cost per lot.
7. Becaus'e the Mt. Carmel Subdivision is not in the incorporated
Town of Carmel, there is currently no goyernmental agency which will
maintain the curbs, gutters and sidewalks in the subdivision if they are
installed. Thus, the developer isfaced with the problem of selling
lots to people and having to advise them that neither the To"Wl1 of Carmel
nor the Com.ty Gommis.sioners of Hamilton County will maintain the
curbs, gutters and sidewalks in future years should the n'eed for
maintenance arise.
8. The First, Second and Third Sections which were approved
prior to the sidewalk,' curb and gutter ordinances, and the Fourth Section
,which notibly was approved without sidewalks after the pa_ssage
of the sidewalk, curb and gutter ordinance have established
a pa1fern in the area. It is notable that the subdivis ion has been planned
as an area for country type living and that people' who wish to live in such
a subdivision do not want curbs, gutters and sidewalks. Thus, the lots
in the Fifth Section would los e much of their appeal to such potential
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purchasers, especially where part of the subdivision would have
sidewalks and part would not.
IVa
Ordinance # Z 17
In the fall of 1961, pursuant to the statutory requirement that
,aTr:lendments to the master plan originate by resolution in the Plan
Commission, the Carmel Town Plan Commission began studies of a
sidewalk ordinance. The first entry in the minutes of the Plan
Conunission which dealt with the sidewalk ordinance are set out as
follows:
l!October 31, 1961. The public hearing on sidewalks
in all new subdivisions held by the Plan Commis sion
was called to order at 7: 30 p. m. with all members
and the Building Com.mis sianer present. Docket
#16 - 61Z
llthat sidewalks be required in all new
subdivisions with more than one house
to an acre!1
was discussed. The following builders and interested
persons were present: Tom Wilson, John Bauer, Harry
Elliott, Dave Hasten, Ralph Cramer and S. B. Beach.
John Bauer expressed an objection that s'ide-walks
should not be required in all instances as in a
cul-de-sac, but also said that if sidewalks were
required, he would certainly comply with the
ordinance and he will put sidewalks in the Flair
North Subdivision. Harry Elliott expressed disapproval
on the same basis as did Tom Wilson. S. B. Beach
spok.e in favor of the amendment. The Board will
act upon this amendment at the next regular meeting
on November 21, 1961. There being no further business
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the meeting adjourned. IT
R. P. Roblee, President
Martha Ferrin, Secretary
Subsequently, on the 21st of November, 1961, f~rther reference
to the proposal appears in the minut~:s of the Carmel Town Plan
Commission:
I!November 21, 1961. Docket #16-61Z-Peters moved
to amend Ordinance #Z8, Section 7, Paragraph
A, to read as follows: All new subdivisions within
the jurisdictional area of the Carmel Plan
Commission must have sidewalks where there is
. more than one house per acre. Applegate seconded
the motion and it carried by the following vote:
Applegate, Aye; Davis, Aye; Hasten, Aye; Hinshaw,
Aye; Peters, Aye; Pfotenhauer, Aye; St€fL'1ens, Aye;
Wachtstetter, Absent; Zerbe; Aye; Roblee, Aye"
Again, onDecember 19, 1961, there is reference in the minutes
of the Plan Commis aon to the sidewalk ordinance:
J1December 19, 1961. The regular meeting of the
Plan Commission was called to order at 7:30
p.m. with all members preserit. The Building
Commissioner was also present. The minutes of
one regular meeting and two public hearings were
read and corrected as follows: The n1.otion by
Peters in the November 21 minutes should read as
f0llows:
lISidewalks shall be installed on each
side of the street in all new subdivisions
within the jurisdictional area of the Carmel
Plan Commission where there is more than
one house per acre." II'
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Every reference in the :rninutes to the sidewalk ordinance
specifically includes the qualification that it applied to all new
subdivisions. However, on January 2, 1962, after having received
the resolution, the Plan Commission, Carmel Board of Trustees
passed Ordinance #Z17 which contained the words 'Iall subdivisionsl'
as oppos ed to the language which was carried in the resolutions
throughout the Plan Commission meetings, "all new subdivisions. "
Burns Annotated Statute Section 53 -742 sets out the specific
method for amending the master plan and the procedure is clear.
Either on its O'W11. motion or by direction of the Town Board, the
Plan Commis s ion must originate a propos ed amendment. It is the
Plan Commission which holds public hearings on the prop.osed
change and not the Town Board. It should be fairly obvious that
the due process requirements which protect property owners and
developers through the means of a public hearing would be for
naught if the Town Board co~ld simply ignore the results or findings
or the form of the resolution and without hearing or dher opportu,nity
for public discussion make changes and then pass .the amendment
into law by way of an ordinance. It is apparent that one of two
things occurred:
1. The Town Board in enacting Ordinance Z17 made a mistake
and failed to incorporate the word new into the ordinance as had been
. intended by the Plan Commisoion, or;
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2. The action of the Town Board in changing the resolution
which had previously been submitted to a public hearing and had
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passed out in the form of a resolu'cion from the Plan Commission
was arbitrary and illegaL Had the Town Board complied with the law and
had an amendment been intended1 pur suant to Burns 53 -741, they
should have l' eturned the pr oposal with the amendments to the
Plan Commis sion for further consideration. This was not done, and
we must conclude, therefore, that the failure to include the word new
by the Town Board was a mistake. In 19631 this specific issue was
raised in the case of Jordan Woods, Inc., vs. Carmel Town Plan
Commission, Charles Byfield, Warren ConleY1 Donald Wilson1 in
the Circuit Court of Hamilton County, Cause #63-537. Jordan Woods1
like your applicant herein, had received preliminary plat approval and
section approval prior to the passage of Ordinance 217 and was sub-
sequently refused final plat approval for failure to include sidewalks
following the adoption of the Ordinance. In that case, Judge George
B. Davis acting as Special Judge in the Hamilton Circuit Court, spec-
ifically. found that,
110rdinances 2-17 and 2-31 were intended by the
Town Board to apply to all new subdivisions and
since Appellants filed a docurnent designated
"Preliminary Plat~J and obtained Plan Commiss.ion
approval therefore on February 22, 1960, sometime
before the ordinances were passed, the finding and
judgment of the Court in this matter is strictly
, confirJ€rl. and limited to the particu,lar' facts in this
case. It is not intended as a precedent for any other
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subdivisions not involved here.. II
We have attached a copy of the entry made by Judge Davis In
that case to this hearing brief in its entirety and marked it "Exhibit
All. While, as Judge Davis points out, the Jordan Woods case was
not intended to be pr ecedent for other subdivisions, it is appar ent
that the facts are exactly the same and not unique to the Jordan Woods
case, inasmuch as the Mt.. Carmel developer s sta:nd in exactly the
same position as did the developers in the Jordan Woods case..
Judge Davis held in his decision that Ordinance Z17 and Z 31 as they
related" to the final plat approval in the Jordan Woods cas e,
". . . constitute an unnecessary hardship and an
unreasonable restriction upon the Plaintiff in
the use of its particular property.. 11
Judge Davis further pointed out that the action was,
11. . . illegal, and arbitrary interference with
the Plaintiff's property rights, and constitutes
a deprivation of Plaintiff's property rights without
due proces s of law. 11
V.
Variance
The subdivision control ordinance contains a specific provision
in Article 7 which anticipates situations where flexibility is required.
It is the opinion of your applicant herein that the variance provision
contained in Article 7 is the specific legal method for implementing.
variations from the requirements of the subdivision control ordinance
and not as has been suggested in some cases an application for a change
for the Board of Zoning Appeals. Article 7 specifically provides as
follows:
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I'Where the Huhd:i.vidcl' can Hhow fh:\.1; ~L prov'i.Hi()n
of this ordinance would cause nnn.ccc:s..::lary hardship
if strictly adhered to, and where, in the opinion of
the Commis sian, becaus e of topographical or other
conditions peculiar to the site, a departure may be
made without destroying the intent of such provision,
the Commission may authorize a variance". Any
variance thus authorized is required to be entered
in writing in the minutes of the Commis sian and the
:reasoning on which the departure was justified shall
be set forth. 11
It is the opinion of your applicant herein that if the sidewalk
and curb and gutter ordinances are required that such a requirement
will constitut e both a legal and a practical hardship on the developer
and that it is a case where a variance is both reas onable and
purpos eful.
VI.
CONCL USION
The Village of Mt. Carmel Subdivision is unique in many
ways as it relates and compares to other subdivision developments
in the Carmel area. To begin with, it is one of the earliest of the
comprehensive type subdivisions and it has many.aspects about it
which have yet to be equalled by any of the more recent developments,
such was water and s"ewage facilities, which were put in by the
developer at a cost of nearly a quarter of a million dollars. In its
15 year s of existence, it has "develop ed a certain reputation and a
continuity of style and asthetics which in and of itself should justify
retaining the character of the neighborhood as it exists currently.
Furthermore, in the 15 years of- its existence,
there has never been a complaint by any resident of the
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development about the Jack of curbs 1 gutters or sidewalks 1 nor has
there ever been a safety problem, let alone a safety problem which could
be linked to the lack of sidewalks, curbs or gutters. In the opinion
of the applicant, herein, there are numerous legal reasons in addition
to the practical considerations for considering the imposition of the
ordinance requirments for sidewalks, curbs and gutters to be an
unneces sary hardship justifying a variance in this cas~ and we would
urge the Plan Commission to grant a variance and accept the final plat
with such a variance..
RESPECTFULLY SUBMITTED,
ROBER T1? & CHURCI:I, A TT.-Y-S., \/'1"
(I 01 ( !f::' t'/ II
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BY ,( C!i:i!!J~j.A<~ /~Lva/C>1';2f:!
Douglas DyGhurch, Attorney for the
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STATE OF INDIANA )
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COUNTY OF HAMILTON ).
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COURT OF
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: JORDAN WOODS, INC....~
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CAUSE NOo 63-537
CA&1lv1EL TOWN PUN CO.M.MISSION IJ
CHARLES' Bl'FIELD I
.WARREN CONLEY I .
, :', DONALD WILSON.
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Com~s now the Plaintiff and having filed its Petition
for Writ of Certiorari (to-wit: B.I,) fo~ review of the decision
of the Defendant Carmel Town Plan Commission, and its Petition
.for Further Testimony to SupPort the Evidence and Facts Disclosed
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by the Return to the Writ of Certiorari, and said petitions haVing
been allow~d by the court., and the Defendant Carmel Town Plan
Commission having filed its return.tosaid petition for Writ
of Certiorari, arid the same is submitted to the-cou~i withou~
intervention of a jury for hearing, finding!.:and',judgment ~
And the Court having heard
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all :::of 'the", evidence ~ makes
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. .' and files its special findings of. facts" as': fOllows;,
adjacent to. and immediately north of la,6th Street, and east :.of
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Woodland Addition, . fifth section in Clay . Township.;;, Hamilton
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1. Plaintiff' s subdivisio~':c:~mprises. 84'.25' acres located
County I . Indiana..
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2. On February 22, 1960, Plaintiff ~ubmltted a preliminary
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plat of its Butdivision to the Defendant Carmel T9Wn pran Commission
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. .;,; '~..~ . for approval, which approval was. gral(l.tod on oaid date cubjoct
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. ,to the' approv~l of tho County domroiaaionara of Hnmilton Couuty
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" .,'. ":: , ~'~.,": . of. the road layout proposed and a strict. compliancs to the Maate;r
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. 3.g' fJ.....nereaf~e~, the final plat approval for Jordan
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',:, ,:",: Woods, first and second' sections, were given by Defendant carroe,~
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,,';-:' of Hamilton County, and said sections have been recorded in the
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On 'August 200 19630 plaintiff" Jordan WOodBo :r'nc":L'
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, .', ," ',e:-Y,':::, suhmittedthEi final plat of its third section to said Plan
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,',' >:":"', Commis s ion for approval, and reque il t ,eel ,a wa i V6 r or variance from
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, :'.. "",',' ',;\,.-,ordinancea z-17 and' Z-31 requiring curbs, gutters and sidewa'1ka.
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.,';....::<:~::-..NO action.. waa t.aken by. said Plan CO.llU'11iaslon at. that time.. . On
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september 17 Q 1963 q Plaintiff again a.t a hearin.g .before said Plan
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:' ':,'~,',.':::';,':~:,! Commission' requ~sted final plat approval of its third section
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: . ;":. :''-.:' without curbs 0 gut.ters and s.1dewalks (J at which time said Plan
.: .': Commission denied said peti'tiono From the denial of: said patitiono
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'plaintiff files ita Petition for Writ of Certiorario
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'50 On october 16q 1963q plaintiff filed its Petition
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Ca.rmel Town Plan Commission in .refusing to gran't a Variance from
Ordinances Z-17 and Z-31.requiring curbso gutters and sidewalks
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in rafuaingto approve the final plat of th~ third section of
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plaintiff C s "aubd~vi.a ion without curbs D. . gutters an.d sidewalks 0 . On
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, ';: Oct.ober. 18,"'1963q the court 'entarcd"an.ord(ir' on P:e.tition for ~qrit.
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8.. The Court finds that Ordinances Z-17 and Z-31 were
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'of certiorari.
6..' 'Thereafter plaint.iff filed ita Petition for
'," ,Further' Testimony 'to Support the Evidence and Facta Disclosed by
the Return to the writ of Certiorari..' On November 22, 1963, the
Court entered an order permitting the plaintiff to present further
testimony..
7.. From all of the, facta disclosed by the Return to the
';writ of Certiorari 'and all of the evidence presented at the hearing
before this court pursuant to granting of Plaintiff's petition for
. further testimony, the court finds that. Ordinance Z-17 requiring.-
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'.. "sidewalks and Ordinance 2-31 ,requiring curbs 'and gutters in all
,subdivisions within the jurisdiction of the Carmel Town plan
Commi,ssion, as "they relate to the third section of plaintiff D.6
subdivision, -'constitute an' unnece.saary hardship and an unreason-
able restriction upon the plaintiff in the use of its particular
. property..
intended by the Town Board to apply to all new subdivisions and since
~ appellants filed a document designated u'preliminary plat It and.
obtained plan Commission approval therefor on February 22, 1960,
some time before the ordinances were passed, the finding and judg-
ment of the court in this matter is strictly confined and limited
to the,particular facts in this case and is not intended as preca-
dent'for any other subdivisions not involved here.
And the court states its conclusions of law on the facta
found as follows, to-wit:
10 ,The action by the Defendant Carmel Town plan
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Commission in refusing to grant a variance or waiver of Ordin~~ces
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: ::'\::'.-;; :J,';,iZ-17' and Z-31 and, approve the final plat of tho thi rd aection ,~,
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\'': :',",:i,',i::"::;;':"; of pla i ntH f IS s ubd i v is ion without curDs, gut to ra and a idewalka,
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thereby creating an undue hard.sh.ip and an unreasonable reatric=
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'Plaintiff in, the use of ita 'property q' is il,legal,
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interference' with plaintiffOa property rights,. and
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ill depriva'tion;,':of' Plain'tiff D S', propert.y"rights wi thout. ,.<.- ",' :
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_ IS t . THE REFORE ,. ORDE RED" ADJUDGED AND DECREED tha t
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'.' >:.,.',;...\..::>.... the Defendant Carmel 'Town Plan COfmnission a'pprove the final plat.
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'~of the third section' of plaintiffgg subdivision without requiring
Plaintiff ,t~ comply with ordinances z=11 and Z'7""3).. which Ordinances
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'::: ," :.- ..:<::;:'::.:',i.:. require c\.lrb~:t;:. gutt"e,rs q
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and sidewalka'o
Having entered his decision
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., on the basis 'of un~~cessary_ hardship ";and an unreasonable restrict.ion
upon Plaint'iff 06 p'roperty rights q
the court finds it unnecessary to
'.:~. make any' determination of.. the other' iaeH.leS',' preBente~~r by. .Plaintiff o.~
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.' :'.: '.':-'::,":;:."".\',,' 'petition:' for writ.: of ..Certiorari 0":.
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