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HomeMy WebLinkAbout14285 Oakbrook Ct - Correction Order Thomas/Joann TrancikCity of Carmel Clerk/Treasurer's Office One Civic Square Carmel, Indiana 46032 City of Carmel Department of Public Works One Civic Square Carmel, Indiana 46032 Re: Gentlemen: EST /nrm Enclosure cc: Thomas and JoAnn Trancik October 1.8, 2011 Enclosed please find a Notice of Appeal with respect to the above referenced Notice of Correction Order issued by the City of Carmel Department of Engineering. Notice of Correction Order issued October 5, 2011 to Dr. Thomas and JoAnn Trancik 14300 Oakbrook Court, Carmel, Indiana (the "Trancik Property Sincerely, Via Certified Mail, Return Receipt Requested and Via Hand Delivery Mr. Douglas C. Haney, Esq. Carmel City Attorney City of Carmel Office of the City Attorney One Civic Square Carmel, Indiana 46032 E. SCOTT TREADWAY ATTORNEY AT LAW 11805 N. PENNSYLVANIA STREET SUITE 163 CARMEL, IN 46032 0317.706.6718 0317.413.3365 SCOTT @ESTLAW LLC. COM NOTICE OF APPEAL Property address: 14300 Oakbrook Court, Carmel, Indiana NI OCT 18 P 4: 1 1 Property Owners: Thomas M. Trancik and JoAnn Trancik Action being appealed: Notice of Correction Order dated October 5, 2011 Date of Appeal: October 17, 2011 Basis of Appeal: 1. Thomas Trancik and JoAnn Trancik (The "Tranciks reside at 14300 Oakbrook Court, Carmel, Indiana (the "Trancik Property The Trancik Property consists of approximately 7.03 acres. Sandra M. Throgmartin and Neal Smith (hereinafter collectively the "Smiths are believed to be husband and wife. 3. The Smiths own the real estate and improvements located at 14285 Oakbrook Court, Carmel, Indiana (the "Smith Property 4. The Trancik Property and the Smith Property are located in a platted subdivision known as Oakbrook. "Oakbrook The Plat was approved on or about April 21, 1992 5. The Trancik Property and the Smith Property share a common boundary. 6. A twenty foot wide utility easement exists between the Trancik Property and the Smith Property. The center line of the easement is the boundary line between the Trancik Property and the Smith Property. (the "Utility Easement 7. The scope of the Utility Easement is clearly defined in the recorded plat. The precise language of the easement is as follows: There are strips of ground as shown on this plat and marked Drainage, Sanitary and Utility Easements, reserved for the use of public utilities for the installation of water and sewer mains, poles, ducts, lines and wires, subject at all times to the proper authorities and to the easement reserved herein. No permanent or other structures are to be erected or maintained upon said strips of land, but owners of lots in this subdivision shall take their titles subject to the rights of public utilities. 8. In 2005, the Smith's constructed additions to their home located on the Smith Property. The additions included additional interior rooms, patios and hardscape (the "Additions 9. The Tranciks have good cause to believe the construction of the Additions was performed in violation of local laws including City of Carmel ordinances. The Smiths did not obtain building permits or obtain required code in specifications. 10. The construction of the Additions altered the natural flow of the surface water on the Smith Property. The Tranciks believe the Smiths did not utilize civil engineers in designing the Addition. As a result, the Smith's began to experience self- inflicted drainage problems including the pooling of the surface water around the Smith home, pool and patio. 11. The Smiths hired BAM Outdoor, Inc. ('BAM to resolve the drainage and surface water problems on the Smith Property. 12. BAM is a landscaping company located at 2919 State Road 32 East, Westfield, Indiana 46074. 13. Without the knowledge of or consent of the Tranciks, the Smiths and BAM knowingly, willfully, and maliciously trespassed upon the Tranciks Property while the Tranciks were away from their home. During said intentional trespass, BAM and the Smiths engaged in the following unlawful conduct utilizing large construction equipment such as bull dozers and dump trucks: A. Removed at least three (3) triaxle dump truck loads of soil from the Trancik Property; B. Substantially altered the natural grade and topography of the Trancik Property; 7 C. Damaged or destroyed portions of the Trancik's landscaping and lawn; D. Installed subsurface pipes running from the Smiths Property to the Trancik Property; and E. Altered the natural topography of the Trancik Property and the Smiths Property so that water from the Smith Property would be collected, channeled and discharged on to the Trancik Property. 14. The actions of the Smiths and BAM have caused material harm to the Trancik Property and its value. A material portion of the Trancik Property is now a marshy wetland. Multiple mature trees have died. The land area in question is a breeding ground for mosquitos. 15. The work performed by BAM and the Smiths on the Trancik property was performed without consent of the Trancik and without first obtaining any consent, permits or approvals. 16. The Tranciks notified the City of Carmel of BAM and the Smith's unlawful actions. The Tranciks have case to believe because the Smiths and other family members are political allies of Mayor James Brainard. The City of Carmel, in contravention of its own ordinances and rules, arbitrarily and capriciously decided to not enforce applicable codes and ordinances applicable to the Smiths. 17. The Tranciks notified the Smiths of the unlawful acts and demanded the subsurface pipes be removed and the Trancik Property be restored to its original condition. The Smiths refused to remedy the consequences of their unlawful actions. 18. In an effort to legitimize the prior unlawful action of the Smiths and BAM, the City of Carmel and the Smith engaged in further unlawful conduct. The Tranciks have good cause to believe City of Carmel officials, knowing of the aforementioned unlawful actions of the Smiths, acted in concert with the Smiths to file a Petition with the Carmel Board of Public Works 3 and Safety seeking a "Consent to Encroach The Consent to Encroach was purportedly intended to grant the Smiths the right to encroach upon the Tranciks Property, unlawfully channel and discharge water onto the Tranciks Property and unlawfully burden the Utility Easement which is partially Located on the Trancik Property_ 19. The Consent to Encroach was signed by Mayor James Brainard on August 19, 2009. 20. The Consent to Encroach is void and unlawful because the City of Carmel lacked legal authority to grant said consent. 21. The Consent to Encroach is void and unlawful because the City of Carmel cannot authorize one private citizen to collect and discharge water onto the private property of another private citizen. legal authority to unilaterally expand the scope of the Utility Easement for the use by a private citizen. 22. The Consent to Encroach is void and unlawful because the City of Carmel has no 23. The Consent to Encroach is void and unlawful because the authority and rights purportedly granted therein are well outside of the stated purpose of the Utility Easement. 24. The Consent to Encroach is void and unlawful because the City of Carmel is not a public utility and has no legal authority to extend property rights to third parties. 25. The Consent to Encroach is void and unlawful because the City of Carmel exceeded its statutory powers and violated its own ordinances in granting the Consent to Encroach. 26. The Consent to Encroach is void and unlawful because it was granted based upon false and fraudulent information to wit: The Smiths represented in writing in the Consent to Encroach as follows: 4 WHEREAS, Owner has indicated to the City the Site Improvement was installed on the adjacent property without objection at the time of installation by the property owner. Consent to Encroach, Page 2 (emphasis added). This statement was false and fraudulent when made. The Tranciks did not consent to the encroachment and were not notified of any hearing related thereto. 27. The Consent to Encroach was recorded in the Hamilton County Recorder's office on September 1, 2009 and constitutes a slander on the title of the Tranciks property. 28. On or about September 14, September 22, September 24 and September 26, 2011, the Tranciks had top soil delivered to their property for the purpose of reestablishing the natural grade and topography of the Trancik Property, which was unlawfully destroyed by the Smiths. 29. The Tranciks have cause to believe the Smiths and /or family members complained to City of Carmel regarding the Tranciks repairing the Trancik Property. 30. On September 22, 2011 the City of Carmel posted a stop work order at the home of the Tranciks. 31. On October 8, 201 1, the City of Camel delivered a second notice to the Tranciks. 32. On October 11, 2011, The Tranciks responded to the second notice. 33. The City of Carmel has threatened the Tranciks with fines and legal action if the Tranciks do not yield to the unlawful demands of the Smiths and City officials. 34. Counsel for the Tranciks has attempted to contact Carmel officials regarding the notices. The telephone calls have gone unreturned. 35. The actions of the City of Carmel in attempting to interfere with the Tranciks' re- establishing the natural grade of their yard is motivated solely by the City of Carmel officials attempting to provide preferential and unequal treatment to private citizens and is not authorized by applicable law. 5 36. The actions of the City of Carmel violate the Tranciks' due process rights. 37. The actions of the City of Carmel violate the equal protection rights of the Tranciks. 38. The actions of the City of Carmel constitute an unlawful taking of the Trancik Property and constitute an inverse condemnation. 39. The actions of the City of Carmel constitute an intentional trespass. 40. The Tranciks' actions have not violated any local ordinance. 41. The City of Carmel has notified the Tranciks they have administrative appeal rights. However, the Tranciks have cause to believe such rights would be futile because Mayor James Brainard directly controls the appellate tribunal and the tribunal would not be impartial. 42. The Tranciks respectfully request a hearing on their appeal of the City of Carmel's Notice of Correction Order issued October 5, 2011. Respectfully submitted, EST Law, LLC E. Scott Treadway #14675 -49) EST Law, LLC 11805 North Pennsylvania Street, Suite 163 Carmel, Indiana 46032 317- 706 -6718 scott@estlawllc.com By: E. Scott T adwa Attorney for Thom Trancik and JoAnn Trancik 6