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HomeMy WebLinkAboutCourt's DismissalSTATE OF INDIANA COUNTY OF HAMILTON KENSINGTON PLACE HOMEOWNERS ASSOCIATION, INC., and DEBORAH STAPLES AS PRESIDENT OF THE BOARD OF DIRECTORS OF KENSINGTON PLACE HOMEOWNERS ASSOCIATION, INC., Petitioners, v s. THE CARMEL PLAN COMMISSION, Respondent. IN THE HAMILTON SUPERIOR COURT 4 CAUSE NO. 29D04- 1108 -PL- 009931 d tLI -Z©IZ ORDER ON RESPONDENT'S MOTION FOR JUDGEMENT OR DISMISSAL Having taken the Respondent's Motion for Judgment or Dismissal under advisement, the Court now rules as follows: Pursuant to Trial Rule 12(B)(6), the Petitioner Kensington Place Homeowners Association, Inc. filed an amended petition on January 13, 2012. The Petitioner added Deborah Staples, as President of the Board of Directors of Kensington Place Homeowners Association, Inc., as a Petitioner, and omitted Justus Homes, Inc., as a Respondent. The Court had dismissed the original petition, which was filed on August 18, 2011, because it contained no request for the issuance of a Writ of Certiorari and because it made no reference to the applicable statutory provisions for appealing a decision of a plan commission, which were Ind. Code §36 -7 -4 -1003 to -1009. The date of filing for the amended petition relates back to the date of filing for the amended petition pursuant to Trial Rule 15(C). The sole Respondent to the amended petition, The Cannel Plan Commission, is not disputing the relation back of the amended petition. Rather, the Respondent claims that the Petitioners failed to comply with the notice requirement of Ind. Code 36- 7- 4- 1005(a). Specifically, the Respondent claimed that the Petitioners failed to serve notice of the original petition for writ of certiorari on each owner of the property that was the subject of the application or petition for the use, special exception, or variance. The Petitioners admit that there are two owners of the subject property: Justus Homes, Inc. and Justus Home Builders, Inc. The Petitioner did not serve one of the property owners, Justus Home Builders, Inc., with notice of the original petition as required by Ind. Code 36-7-4 1005(a)(2). The Respondent argues that the Petitioner's failure to serve Justus Home Builders, Inc. with notice of the original petition cannot be cured by the relation back date of the filing of the amended petition. The Court agrees with the Respondent's argument that the Petitioners' failure to comply with the notice requirement of the statute is fatal and cannot be cured by the filing of an amended petition. See Hoagland v. Town of Clear Lake Bd. of Zoning Appeals, 871 N.E.2d 376, 383 (Ind. Ct. App. 2007). Therefore, the Court grants the Respondent's motion for dismissal and judgment. As an additional ground for the Court's ruling, the Court notes that there is nothing in the Court's record to indicate that the amended petition was served on both property owners of the property. The Court's file has a copy of the notice that was sent via certified mail to Justus Home Builders, Inc. on January 25, 2012, along with a CCS entry to that effect. But there is no record that the Petitioners provided the Court with the notice to be sent to Justus Homes, Inc. and no record of any notice being sent to Justus Homes, Inc. The Petitioners, in their written 2 response, attached a copy of the notice for Justus Homes, Inc., but there is no record that the copy was ever filed with the Court. Accordingly, it appears that both property owners were not served with the required notice of the amended petition. The Court denies the Petitioners' estoppel argument and hereby enters judgment in favor of the Respondent, The Carmel Plan Commission, and dismisses the petition. SO ORDERED this March 8, 2012 Distribution: Jeffrey Bellamy John Molitor Bryan Babb 3 chard Campbel ilton Superior