HomeMy WebLinkAboutLetter: Cause No. 49S05-0511-CV-5105888 Keystone Crossing, Sulte 1200
DREWRY SIMMONS VORNEHM, LLP ~~~~~~~
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A T T O R N E Y S
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Indianapolis, Indiana 46240 (31'1) 580-4848 telephone (31'1) 580-4855 facsimile www.drewrysimmons.com
Paul G. Reis
Preis'@drewrysinemons. com
Via Electronic Mail and U.S. Postal Service
Mr. John R. Molitor
Suite 200
9465 Counselors Row
Indianapolis, IN 46240
Re: Sweet Charity Farms
DS V File No. 4320.002
Dear John:
Direct Dial: (317) 713 6054 .,
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November 22, 2005 ~`_ ~ypV 62`~~D
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In light of the discussion. at the Plan Commission meeting 'on the 15th, I wanted to
contact you about our position concerning the Sweet Charity Estates application for approval of a
preliminary plat of subdivision.
Our reading of Metropolitan Development Conunission of Marion County, et al.
v. Pinnacle Media, LLC , Ind. N.E.2d (2005), Cause No. 49505-
0511-CV-510, decided by the Supreme Court of Indiana on November 3, 2005, supports our
position that this opinion does not affect the approval of the preliminary plat as filed.
Furthermore, we believe that the opinion does not support the application of Z-473-05, requiring
3 acre lots, to this preliminary plat.
In support of this position, we submit the following:
1. On April 6, 2005, the application for preliminary plat approval for Sweet Charity
Estates was filed with the Department of Community Services.
2. On April 18, 2005, Ordinance Z-473-OS was adopted by the Carmel Common
Council.
3. As of the date of filing; the Carmel Zoning Ordinance did not require 3 acre lots
on the ]and to be included in the Sweet Charity Estates Preliminary Plat of
Subdivision.
Mr..1ohn R. Molitor
November 22, 2005
Page 2
4. The Supreme Court in Pinnacle specifically cites the Supreme Court case of
Knutson v State ex rel. Seberger, 239 Ind. 656, 160 N.E.2d 200 (1959), in which
the Supreme Court decided that the Town of Dyer could not enforce a second
subdivision control ordinance upon the Seberger's application for plat approval
which was enacted after the filing of that application and that the Town was
mandated to act in accordance with the ordinance in effect at the time of the filing.
Through the years, the Knutson case has been cited in support of the position that
having a building permit on file created a vested right that could not be overcome
by a change in zoning law. In Pinnacle, the Court overrules this extension of
Knutson saying: "With respect to building permits, then, Knutson's suggestion that
having a building permit on file creates a vested right that cannot be overcome by
a change in zoning law is overruled." The Court continues by specifically noting
that the Knutson principle has been applied to applications for a number of other
types of government permits and states: "Because the law and facts in each of
these cases differs materially from those applicable to building permits, we limit
our holding today ONLY TO BUILDING PERMITS." (emphasis
added) Therefore, Knutson remains the law with respect to applications for plat
approvals (the actual basis for the Knutson case) and applicable to the Sweet
Charity Estates application.
Following your consideration of this matter, please contact me to confirm our continued
process for approval of the preliminary plat.
Respectfully yours,
DREWRY SIMMONS VORNEHM, LLP
P ul G. eis'
Attorney for al Meadows, LLC, Nancy
Irsay and Robert Irsay Pavilion, LLC
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