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HomeMy WebLinkAboutPulte Motion to Define Scope of Director's Authority (2)LEGAL COUN' 1. 1 December 7, 2011 Carmel Board of Zoning Appeals c/o Mr. Michael P. Hollibaugh 1 Civic Square Carmel, IN 46032 Dear Mike: TEO:dlp Enclosures ILERLLP RE: In the Matter of the Appeal Regarding The Traditions on the Monon October 18, 2011 Determination by Director of Community Services of the City of Carmel Pulte Homes, Inc.'s Motion to Define Scope of Director's Authority; Timothy Ochs One American Square 1 Suite 2900 1 Indianapolis, IN 46282 -0200 1 P 317 -236 -2100 1 F 317 236 -2219 INDIANAPOLIS 1 CHICAGO 1 CLEVELAND 1 COLUMBUS 1 DUPAGE COUNTY IL 1 WASHINGTON DC WRITER's DIRECT NUMBER: (317) 236 -5952 ❑u ECr FAX: (317) 592 -4720 INTERNET: Timothy.Ochs icemiller.com 4 EcErvEo JAN 24 2012 aoc$ Enclosed for fling with the Carmel Board of Zoning Appeals, please find the original copies of the following documents: Pulte Homes, Inc.'s Brief in Support of Motion to Define Scope of Director's Authority; and proposed Order Granting Pulte Homes, Inc.'s Motion to Define Scope of Director's Authority If you have any questions regarding these documents, please do not hesitate to contact me. Very truly yours, ICE MILLER LLP www.icemiller.com IN THE MATTER OF THE APPEAL REGARDING THE TRADITIONS ON THE MONON OCTOBER 18, 2011 DETERMINATION BY DIRECTOR OF COMMUNITY SERVICES OF THE CITY OF CARMEL PULTE HOMES, INC.'S MOTION TO DEFINE SCOPE OF DIRECTOR'S AUTHORITY Pulte Homes, Inc. "Pulte respectfully requests that the Board of Zoning Appeals find that the Director of the Department of Community Services exceeded his authority in Sections 2(A) -(C); 4(B) -(D); and 5(A)-(C) of his October 18, 2011 Determination. Pulte further requests that the Board find that any alleged violation of a non zoning ordinance is not properly before the Board. Pulte also respectfully requests that the Board find that the Director has no authority to enter a zoning -based determination on the issues raised in the November 14, 2011 appeal filed by the Traditions on the Monon Homeowners Association, and non zoning issues raised by the Homeowners Association are not properly before the Board. In support of this Motion, Pulte tenders herewith its Brief in Support of its Motion to Define Scope of Director's Authority. 1/2735504.1 CARMEL BOARD OF ZONING APPEALS Respectfully submitted, ICE MILLER LLP Timothy E. #16823 -02) Attorney for Pulte Homes of Indiana, LLC R EC iVEO JAN 2 4 2012 DOCS IN THE MATTER OF THE APPEAL REGARDING THE TRADITIONS ON THE MONON OCTOBER 18, 2011 DETERMINATION BY DIRECTOR OF COMMUNITY SERVICES OF THE CITY OF CARMEL CARMEL BOARD OF ZONING APPEALS 4 CFJVEO JAN z a 1011 DOc8 PULTE HOMES, INC.'S BRIEF IN SUPPORT OF MOTION TO DEFINE SCOPE OF DIRECTOR'S AUTHORITY I. INTRODUCTION The Director of the Department of Community Services is obligated to enforce and administer the PUD Ordinance for Traditions on the Monon and the portions of the Carmel /Clay Zoning Ordinance that are specifically referenced in the PUD Ordinance. (PUD Ordinance 1.2). The Director does not, however, have authority to impose additional obligations on Pulte or create ad hoc rules that apply to Pulte. Pulte is appealing only those matters for which the Director has exceeded his authority. Moreover, the Board is only empowered to hear disputes regarding the City of Carmel Zoning Ordinance. To the extent the Director based his findings on non zoning ordinances, the Board is without jurisdiction to hear such a dispute. Resolution of these threshold issues will significantly streamline the hearing on February 27, 2012. II. FACTUAL BACKGROUND On December 21, 2004, the Common Council for the City of Carmel "City Council enacted a Planned Unit Development District Ordinance for Traditions on the Monon "PUD Pulte Is Appealing Pulte is Not Appealing 2(A) -(C): Streets and Curbs 1(A) -(C): Banked Parking Area 4(B) -(D): Foundation Landscaping; Common Area; Tree Mulch 3(A) -(F): Landscaping and Grounds 5(A) -(C) Irrigation 4(A); (4)(E): Driveway Plantings; Mulch bed restoration. Ordinance The PUD Ordinance allowed the Developer, Buckingham Properties, Inc., and its successors to develop a townhome community located near 136 Street and Rangeline Road. Centex Homes "Centex became a successor to Buckingham Properties, Inc., and developed the Traditions on the Monon. Pulte Group, Inc. "Pulte purchased Centex Homes. In recent months, the Homeowners Association of the Traditions on the Monon "Homeowners Association has complained to Pulte and the Director about a variety of matters. Pulte addressed many of these concerns, but the parties could not resolve the Homeowners Association's complaints regarding several issues, including landscaping maintenance, irrigation, and street and curb layout. On October 18, 2011, the Director issued his determination "Determination regarding these lingering issues. Both Pulte and the Homeowners Association timely filed appeals to the BZA. Pulte has appealed only those matters for which it believes the Director has exceeded his authority. Pulte is not appealing several items in the Determination either because the Director did not impose additional obligations on Pulte, or because Pulte has already agreed to correct those items. A summary is below. The hearing on these appeals is scheduled for February 27, 2012. As discussed in detail below, Pulte seeks a determination on the threshold issue of whether the Director exceeded his authority in Sections 2(A) -(C); 4(B) -(D); and 5(A) -(C) of the Determination. Resolution of this issue will streamline the proceedings on February 27, 2012. III. ARGUMENT 1. The Director is authorized to enforce the PUD, but he is not empowered to impose new obligations on Pulte. The City Council is vested with the authority to enact zoning ordinances. In doing so, the City Council has wide discretion in drafting the ordinance. Once the ordinance is enacted, however, legislative discretion ends and the ordinance can only be enforced by the Director as a ministerial act. See Carmel Zoning Ordinance 29.04.01 (it shall be the duty of the Director to administer and enforce this Ordinance); see also Hendricks County Board of Commissioners v Rieth- Reilly Construction Co., Inc., 868 N.E.2d 844, 854 (Ind. Ct. App. 2007) (stating that a legislative body has discretion to enact a law, but ministerial agency cannot exercise discretionary power typically reserved to legislative body). Legislative discretion is reserved for the Cit y Council, and any attempt to delegate legislative authority to the Director is improper. Id. at 853 (holding that the area plan commission could not exercise the sort of discretion reserved to a legislative body enacting a law or ordinance and that any attempt to delegate such broad authority would be improper). The PUD Ordinance is the exclusive means of exercising zoning control over the Traditions on the Monon. Ind. Code 36- 7- 4- 1504(c). Thus, the Director cannot go beyond the express written language of the PUD Ordinance to impose additional obligations. As the Indiana Court of Appeals has found, "[i]t is well- settled that discretion in the formulation of standards is to be exercised when an ordinance is created, rather than when an ordinance is applied." Burrell v. Lake County Plan Commission, 624 N.E.2d 526, 532 (Ind. Ct. App. 1994). In other words, if 3 the PUD does not require Pulte to act, the Director does not have the discretion to order Pulte to act: It is well settled that zoning ordinances must be precise, definite, and certain in expression so as to enable both the landowner and the municipality to act with assurance and authority regarding local land use decisions... This requirement is dictated by due process considerations in that the ordinance must provide fair warning as to what the governing body will consider in making a decision. Hendricks County Board of Commissioners, 868 N.E.2d at 852. In our case, Section 1.2 of the PUD Ordinance states, Development of the District shall be governed entirely by (i) the provisions of this Traditions on the Monon Ordinance and its exhibits, and (ii) those provisions of the Carmel/Clay Zoning ordinance specifically referenced in this Traditions on the Monon Ordinance. In the event of a conflict between this Traditions on the Monon Ordinance and the Carmel /Clay Zoning Ordinance or the Sign Ordinance, the provisions of this Traditions on the Monon Ordinance shall apply. (emphasis added). Thus, in making his Determination, the Director can look only to the PUD Ordinance or those provisions of the Carmel /Clay Zoning Ordinance specifically referenced in the PUD Ordinance. As detailed more fully in Pulte's November 17, 2011 Appeal, the Director has ordered Pulte to make multiple changes to streets and curbs, landscaping, mulch, and irrigation. (emphasis added). The PUD is silent with regard to street and curb requirements. Moreover, the PUD does not specifically incorporate any provision from the Carmel /Clay Zoning Ordinance regarding street and curb requirements. Thus, the Director cannot look to a general Carmel /Clay Zoning Ordinance regarding curbs to impose this obligation on Pulte. Accordingly, the Director has no authority to impose street and curb requirements in Sections 2(A) -(C) of the Determination. 4 Further, the PUD Ordinance provides only a cursory reference to the maintenance of landscaping, mulch, and irrigation: "It shall be the responsibility of the owners and their agents to insure proper maintenance of project landscaping approved in accordance with this Traditions on the Monon Ordinance. This is to include, but is not limited to, irrigation and mulching of planting areas, replacing dead, diseased, or overgrown plantings (PUD Ordinance 8 3 The PUD Ordinance contains no further guidance, nor does it specifically reference a part of the Carmel /Clay Zoning Ordinance dealing with irrigation or landscaping. The Director is thus without authority to create and impose additional irrigation and landscaping requirements. In addition, the PUD Ordinance states that landscaping maintenance is the responsibility of owners and their agents in this case, the Homeowners Association and their management company. There is no basis in the PUD Ordinance to impose such an obligation on Pulte. In this case, the Director is obligated to enforce the PUD Ordinance and those portions of the Carmel /Clay Zoning Ordinance specifically referenced in the PUD Ordinance, but the scope of his authority is strictly limited by those ordinances. The obligations he seeks to impose in sections 2(A) -(C); 4(B) -(D); and 5(A)-(C) of the Determination have no basis in the PUD Ordinance. Pulte respectfully requests that the Board find that the Director has exceeded his authority with regard to the items Pulte has appealed. 2. The Director may have authority to enforce other parts of the Carmel City Code, but the BZA has jurisdiction over disputes involving zoning ordinances. The Director may contend that he has authority to order Pulte to perform this work because some other, non zoning ordinance requires it, i.e., the non zoning portions of the Carmel City Code. While the Director might be vested with authority to enforce some non zoning provisions of the Carmel City Code or the Building Code, the BZA is empowered to hear appeals 5 involving only enforcement of the Zoning or Subdivision Control Ordinance of the City of Carmel. See Carmel Zoning Ordinance 30.01; Ind. Code 36-7-4-918.1. For example, the Carmel City Code regulates countless other activities, ranging from the traffic violations to building code violations to the provision of water services. it would be completely inappropriate to bring a traffic violation dispute before the BZA. The BZA is created to be the expert on zoning ordinances nothing else. Thus, to the extent the Director contends he has authority to order Pulte to act pursuant to a non- zoning ordinance, those matters are not properly before the BZA. The BZA is not the correct forum to hear such disputes. It is important to remember that ruling in Pulte's favor on this issue does not deprive the Homeowners Association of a remedy. For example, if they believe that the landscaping has not been maintained properly, they can file a complaint for breach of contract against the management company engaged by the Homeowners Association to provide maintenance. The proper forum for such a claim is state court it is not the BZA. 3. The Director is without authority to enter a determination on the issues raised in the Homeowners Association's Appeal, and the BZA is not the proper forum to hear the Homeowners Association's complaints. The Homeowners Association has filed an appeal contending that the Director did not go far enough in his Determination. Specifically, they claim that the Director should have addressed alleged building defects, building and surface drainage problems, verification of repairs, and the status of performance bonds issued to Pulte by the City. The PUD Ordinance is silent with regard to these complaints, and the PUD Ordinance does not reference another part of the Carmel /Clay Zoning Ordinance that addresses these complaints. As discussed in detail above, the Director is thus without authority to enter a determination on these matters. Further, the Homeowners Association's complaints involve non zoning matters; accordingly, the BZA is not empowered to hear them. 6 IV. CONCLUSION The Director is empowered to enforce the PUD Ordinance —not impose new obligations on Pulte. Moreover, the Board is empowered to hear only disputes arising out of the zoning ordinances —not claims for violations of non zoning ordinances. Pulte respectfully requests that the Board find that the Director exceeded his authority in Sections 2(A) -(C); 4(B) -(D); and 5(A)- (C) of the Determination, and that any alleged violation of non zoning ordinances is not properly before the Board. 1/2732947.1 Respectfully submitted, ICE MILLER LLP Timothy E. S hs (#1 6823-02) Attorney f' Pulte Homes of Indiana, LL 7 IN THE MATTER OF THE APPEAL REGARDING THE TRADITIONS ON THE MONON OCTOBER 18, 2011 DETERMINATION BY DIRECTOR OF COMMUNITY SERVICES OF THE CITY OF CARMEL ORDER GRANTING PULTE HOMES, INC.'S MOTION TO DEFINE SCOPE OF DIRECTOR'S AUTHORITY Pulte Homes, Inc., by counsel, having filed its Motion to Define Scope of Director's Authority, and the Board, being duly advised in the premises, now finds that said Motion should be GRANTED. IT IS THEREFORE ORDERED as follows: 1. The Director of the Department of Community Services exceeded his authority in Sections 2(A) -(C); 4(B) -(D); and 5(A) -(C) of his October 18, 2011 Determination. 2. Any alleged violation of a non zoning ordinance is not properly before this Board. 3. The Director has no authority to enter a zoning -based determination on the issues raised in the November 14, 2011 appeal filed by the Traditions on the Monon Homeowners Association; and 4. Non zoning issues raised by the Homeowners Association are not properly before this Board. ORDERED this day of 2012. 1/2735548.1 CARMEL BOARD OF ZONING APPEALS Carmel Board of Zoning Appeals