HomeMy WebLinkAboutComplaint for Declaratory Judgment and Injunction STATE OF INDIANA HAMILTON COUNTY CIRCUIT COURT
)SS:
COUNTY OF HAMILTON CAUSE NO. 29C01-0905-CC-912
CARMEL PLAN COMMISSION,
HOWARD GREEN, HOLLY GREEN,
JOHN COLOSIMO, BERYL COLOSIMO,
JIM DUNN, LAURA DUNN,
GOPAL GHOSH, MAYA GHOSH,
MIKE SHAW, SUSAN SHAW,
RON HERMAN, SUZANNE HERMAN,
ANDREW WAGNER AND JUDITH WAGNER,
Plaintiffs,
v.
RYAN PATRICK LEWIS,
Defendant.
COMPLAINT FOR DECLARATORY JUDGMENT AND INJUNCTION
COME NOW, the Plaintiffs, Howard Green, Holly Green, John Colosimo, Beryl
Colosimo, Jim Dunn, Laura Dunn, Gopal Ghosh, Maya Ghosh, Mike Shaw, Susan Shaw,
Ron Herman, Suzanne Herman, Andrew Wagner and Judith Wager (collectively referred
to as "Johnson Acres Landowners by counsel, and for their Complaint against the
Defendant, Ryan Patrick Lewis, allege and state as follows:
1. Howard Green and Holly Green reside, and did so at all times relevant hereto, at
the property commonly known as 674 Johnson Drive, Carmel, Indiana 46033, and are the
record owners of the real estate located at this address. John Colosimo and Beryl
Colosimo reside, and did so at all times relevant hereto, at the property commonly known
as 617 Carson Court, Carmel, Indiana 46033, and are the record owners of the real estate
located at this address. Jim Dunn and Laura Dunn reside, and did so at all times relevant
hereto, at the property commonly known as 645 Carson Court, Carmel, Indiana 46033,
r EXHIBIT
and are the record owners of the real estate located at this address. Gopal Ghosh and
Maya Ghosh reside, and did so at all times relevant hereto, at the property commonly
known as 618 Johnson Drive, Carmel, Indiana 46033, and are the record owners of the
real estate located at this address. Mike Shaw and Susan Shaw reside, and did so at all
times relevant hereto, at the property commonly known as 706 Johnson Drive, Carmel,
Indiana 46033, and are the record owners of the real estate located at this address. Ron
Herman and Suzanne Herman reside, and did so at all times relevant hereto, at the
property commonly known as 603 Carson Court, Carmel, Indiana 46033, and are the
record owners of the real estate located at this address. Andrew Wagner and Judith
Wagner reside, and did so at all times relevant hereto, at the property commonly known
as 670 Carson Court, Carmel, Indiana 46033, and are the record owners of the real estate
located at this address. Johnson Acres Landowners' residences are situated in the
Johnson Acres subdivision in Hamilton County, Indiana.
2. Defendant resides, and did so at all times relevant hereto, at the property
commonly known as 646 Johnson Drive, Carmel, IN 46033, and is the record owner of
the real estate located at this address, which is also designated as Tax Parcel 16- 10 -20-
04-01- 034.000 (the "Real Estate in the City of Carmel, Hamilton County, Indiana. The
Real Estate is situated on Lot No. 66 in the Johnson Acres subdivision.
3. On or about April 21, 1976, the Carmel Plan Commission, pursuant to authority
granted it by state law (statute recodified in 1981; now see Ind. Code §36 -7 -4 -700 et
seq.), granted approval to the plat for the Johnson Acres Subdivision. The plat also
contained certain covenants and restrictions (the "Covenants attached hereto and
incorporated herein as Exhibit "1", which in pertinent part state:
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No building structure or accessory building shall be erected closer to the side of
any lot than 10 feet... No structure shall be erected, altered, placed or permitted to
remain on any residential lot herein, other than one detached single family
dwelling not to exceed two and one -half stories in height, and a private garage for
not more than 3 cars and residential accessory buildings.
4. On or about January 21, 2009, Defendant was issued a building permit (the
"Permit for the construction of a garage (the "Garage on the Real Estate, which
Garage was to be approximately 55 feet long, 35 feet wide, and 16 feet high from grade
at the existing driveway on the Real Estate. The Garage would comprise an area of
approximately 1,925 square feet and provide storage space for up to nine (9) vehicles.
The Garage would also be situated less than seven (7) feet from the north property line of
the Real Estate.
5. On or about March 23, 2009, the Carmel Board of Zoning Appeals "BZA
considered an appeal of the Permit by Plaintiff Howard Green (the "Green Appeal The
Green Appeal sought to have the BZA rescind the Permit on grounds that the issuance of
the Permit violated Carmel Zoning Ordinance 25.01.01.A.1 and the Covenants. The
BZA duly heard the Green Appeal, but Lewis, by counsel, moved to dismiss the Green
Appeal on the basis that it was not timely filed. The BZA, upon learning the Plan
Commission was considering whether it should initiate litigation against Lewis in respect
to an alleged violation of the Covenants, tabled its consideration of the Green Appeal and
has yet to rule on Lewis' motion to dismiss the Green Appeal. During the pendency of
the Green Appeal, the Permit has been subject to a Stop Work Order, issued by the
Carmel Department of Community Services.
6. Pursuant to the Covenants, the Plaintiffs collectively known as Johnson Acres
Landowners, as owners of real property situated in Johnson Acres subdivision, have the
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authority bring an action against the Defendant in order to uphold and enforce the
Covenants.
7. The Defendant should be required to comply with all restrictions in the Covenants
and ordered to remove all structures found to violate said Covenants. Additionally, the
Plaintiffs collectively known as Johnson Acres Landowners are entitled to recover
"damages or other dues" pursuant to the Covenants which include their attorney fees for
bringing this action.
WHEREFORE, the Plaintiffs collectively known as Johnson Acres Landowners
respectfully request that the Court find and determine that the Covenants, as made in
connection with the Plan Commission's approval of the plat of the Johnson Acres
subdivision in April of 1976, prohibit the construction of the garage contemplated by the
Permit; that the Court order that Defendant Lewis now demolish and remove the Garage
from the Real Estate; that the Court order Lewis not to reconstruct such Garage or any
other structure on the Real Estate unless such structure fully complies with the
Covenants; that costs be assessed against Lewis; that Lewis be ordered to pay the
attorney fees and other damages and dues incurred by the Johnson Acres Landowners;
and for all other just and proper relief.
Respectfully submitted,
RICHARDS, BOJE, PICKERING
BENNER BEC ER
Bruce A. Boje #2818 -29
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Bruce A. Boje
RICHARDS, BOJE, PICKERING
BENNER BECKER
1312 Maple Avenue
Noblesville, IN 46060
(317) 773 -4400
CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing was served on counsel of record herein, John R.
Molitor, 9465 Counselors Row, Suite #200, Indianapolis, IN 46240 and Christopher Russell, 7819
Harbour Isle, Indianapolis, IN 46240, by Certified U.S. mail on the date of filing.
Bruce A. Boje
Bruce A. Boje
RICHARDS, BOJE, PICKERING
BENNER BECKER
1312 Maple Ave.
Noblesville, IN 46060
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