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HomeMy WebLinkAboutGreen Response Notice ProgressSTATE OF INDIANA IN THE HAMILTON CIRCUIT COURT )SS: COUNTY OF HAMILTON CAUSE NO. 29C01- 0905 -PL -912 CARMEL PLANNING COMMISSION, HOWARD GREEN, HOLLY GREEN, JOHN COLOSIMO, BERYL COLOSIMO, JIM DUNN, LAURA DUNN, GOPAL GHOUSH, MAYA GHOUSH, MIKE SHAW, SUSAN SHAW, RON HERMAN, SUZANNE HERMAN, ANDREW WAGNER and JUDITH WAGNER, Plaintiffs, vs. RYAN PATRICK LEWIS, Defendant. PLAINTIFFS RESPONSE TO DEFENDANT'S FIRST NOTICE OF PROGRESS AND MOTION FOR ORDER APPROVING THE SAME Comes now the Plaintiffs, by counsel, and for their Response to Defendant's First Notice of Progress and Motion for Order Approving the Same, state as follows: 1. On August 9, 2011, the Court entered its Order on Plaintiffs' Motion for Rule to Show Cause and Defendant's Verified Motion for Clarification. In that order, Defendant was ordered to file a Notice of Progress regarding his effort at securing approval or acquiring permits to construct a compliant structure on his real estate within ten (10) days of the date of the order, on or before August 19, 2011. Additionally, Defendant was ordered to file subsequent notices every thirty (30) days thereafter. 2. On August 24, 2011, Defendant filed his first Notice of Progress with the Court stating that he had secured a building permit to construct a compliant structure and that he had removed the foundation that was located less than ten (10) feet from his property line. Defendant also alleged that he had satisfied all of his obligations under the Court's Order of August 9, 2011 and was not required to file any further notices. 3. Defendant's Notice of Progress was not timely filed and pursuant to the Court's Order, Defendant's failure to file a timely notice requires Defendant to remove any remaining concrete foundation from his property within fifteen (15) days from the date the notice was due on August 19, 2011. 4. Further, Defendant attached as Exhibit A to his Notice of Progress, a building permit to construct a 24 x 24 foot detached garage on his real estate. On the face of the permit he states that the structure is a garage and will be placed on a slab, not a basement. The drawing of the garage attached to the permit depicts a detached garage that is wide enough to house two (2) cars, despite having one garage door bay. The drawing also depicts that a partial basement will be located in the detached garage. See the Building Permit filed August 18, 2011 attached hereto, incorporated by reference and marked Exhibit "A 5. Pursuant to the Covenants and Restrictions of Johnson Acres, "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 three (3) cars... See the Covenants and Restrictions of Johnson Acres attached hereto, incorporated by reference and marked Exhibit "B". 6. Defendant's proposed detached garage is not a compliant structure in that Defendant has an existing two (2) car attached garage to his home on the real estate and the proposed detached garage is a two (2) car garage. Therefore, the detached garage for which Defendant applied for a building permit does not comply with the Covenants and Restrictions of Johnson Acres as it is not limited to a one (1) car garage. 7. There are no other detached garages located in the Johnson Acres subdivision and the neighbors object to the construction of the proposed garage structure as depicted in Defendant's building permit. Only one home in Johnson Acres has a three (3) car garage and that garage is attached to the main residential dwelling. 8. Additionally, Defendant has only removed three (3) feet of the concrete foundation located closest to his property line. A large portion of the concrete foundation from the former garage remains on his real estate, which is significantly larger than the 24 x 24 foot proposed garage structure for which Defendant obtained a building permit. Defendant did not address the remaining foundation in his Notice of Progress to the Court or in his building permit and has not shown that he intends to place a compliant structure on the portion of the foundation that exceeds the 24 x 24 proposed garage structure. Therefore, pursuant to the Court's order of August 9, 2011, Paragraph F., Defendant has fifteen (15) days from the date his Notice of Progress was due on August 19, 2011, to remove the concrete foundation that will not be used in his proposed garage structure for which he obtained a building permit. 9. The neighbors of the Johnson Acres subdivision have additional concerns that should the proposed garage structure be allowed to be built on Defendant's property, that the provisions in the Covenants restricting and limiting a garage within the subdivision to three (3) cars will be waived and future homeowners may build buildings and garages that exceed three (3) cars and compromise the integrity and design of the neighborhood. 10. Defendant has also alleged that he is not required to file further Notices of Progress with the Court regarding the building of a compliant structure on the concrete foundation. Plaintiffs believe the Court's order is clear that notices should be filed every thirty (30) days until the compliant structure is completed. Should Defendant not be required to file notices, there is no incentive for Defendant to complete a compliant structure on his property and cause possible future and unnecessary litigation. 11. Plaintiffs Howard and Holly Green have continued to accrue monetary damages in this litigation to enforce the Covenants and Restrictions of Johnson Acres and therefore, request that the Court award additional attorney fees to Plaintiffs Howard and Holly Green in the amount of $525.00 as damages pursuant to the Covenants and Restrictions attached hereto as Exhibit `B" and is supported by the Attorney Fee Affidavit attached hereto, incorporated by reference and marked Exhibit "C WHEREFORE, the Plaintiffs, by counsel, respectfully request an order finding as follows: A. That Defendant Ryan Patrick Lewis failed to timely file a Notice of Progress within ten (10) days of the Court's Order of August 9, 2011 and therefore, Defendant is required to remove the remaining concrete foundation on his real estate within fifteen (15) days; B. That, in the alternative, should the Court find that Defendant's notice was timely, that the Court find that Defendant's proposed garage structure as depicted and approved in the building permit attached to Defendant's Notice of Progress as Exhibit "A" is a non compliant structure that exceeds the allowed three (3) car garage space on Defendant's real estate as set forth in the Covenants and Restrictions of Johnson Acres and therefore, order the remaining concrete foundation to be removed within fifteen (15) days; C. That, in the alternative, should the Court find that Defendant's notice was timely and the proposed garage structure is a compliant structure pursuant to the Covenants and Restrictions of Johnson Acres, that the Court order that the concrete foundation that remains on Defendant's property that exceeds the proposed garage structure be removed within fifteen (15) days; D. That the Court order Defendant Ryan Patrick Lewis to file Notices of Progress regarding the removal of the concrete foundation and /or the construction of any structure as ordered by the Court until the removal of the remaining foundation and /or the construction of a compliant structure is completed; E. That should the Court find that the proposed garage structure as depicted in the building permit is a compliant structure pursuant to the Covenants and Restrictions of Johnson Acres and Defendant is permitted to build the proposed garage, that the Court enter an order setting forth that the construction of said structure shall not be deemed as a waiver by the homeowners of Johnson Acres of any of the Covenants and Restrictions as they are currently written and recorded; F. That the Court award Plaintiffs Howard and Holly Green reasonable attorney fees in the amount of $525.00 as damages for fees incurred due to the continued enforcement of the Covenants and Restrictions of Johnson Acres and that any attorney fees award be immediately reduced to judgment; G. And for all other just and proper relief Richards, Boje, Pickering, Benner Becker 1312 Maple Avenue P.O. Box 2169 Noblesville, Indiana 46061 (317) 773 -4400 John R. Molitor 9465 Counselors Row Suite 200 Indianapolis, Indiana 46240 Respectfully Submitted, Michael N. Red Fleming Stage, LLC 310 North Alabama Street Suite 300 Indianapolis, Indiana 46204 RICHARDS, BOJE, PICKERING, BENNER BECKER Laurie D. Johnson, #23620 -29 Attorney for Plaintiffs the Johnson Acres Homeowners John R. Molitor Attorney for the Carmel Plan Commission Certificate of Service I hereby certify that a copy of the foregoing has been served upon the following counsel of record by First Class U.S. Mail, postage prepaid, this day of August, 2011: Laurie D. Johnson