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Home My WebLink AboutCorrespondence Conn, Angelina V From: Jon Dobosiewicz(jond @NE-LAW.COM] Sent: Monday, November 26, 2012 1:41 PM To: Conn, Angelina V Subject: Re: Docket No. 12070018 OA: Westmont PUD Ordinance Amend.? Correct. Thanks From: Conn, Angelina V <Aconn @carmel.in.gov> To: Jon Dobosiewicz Cc: Boone, Rachel M. <rboone @carmel.in.gov> Sent: Mon Nov 26 13:37:25 2012 Subject: RE: Docket No. 12070018 OA: Westmont PUD Ordinance Amend.? Hi,Jon— Just checking on this item. I assume you did NOT make notice for the Dec. 18 PC meeting, right? Docket No. 12070018 OA: Westmont PUD Ordinance Amendment. The applicant seeks approval to repeal text from Section 4.3 of PUD Ordinance Z-507-07. The site is located at 2000 W. 136th St. and is zoned PUD/Planned Unit Development. Filed by Charlie Frankenberger of Nelson & Frankenberger, for Sweet Charity Estates, LLC. Angie Conn, Planning Administrator 1 Conn, An.elina V From: Jon Dobosiewicz [fond @NE-LAW.COM] Sent: Wednesday, October 24, 2012 5:14 PM To: Conn, Angelina V Subject: RE: Docket No. 12070018 OA: Westmont PUD Ordinance Amend.? Angie, Please do not place it on the agenda. I will keep you posted. Jon Jon C.Dobosiewicz Land Use Professional Nelson &Frankenberger,PC 3105 East 98th Street,Suite 170 Indianapolis,IN 46280 317-844-0106(Office) 317-428-8393(Cell) 317-846-8782(Fax) iion @nf-law.com NOTICE OF CONFIDENTIALITY This E-mail message and its attachments(if any)are intended solely for the use of the addressee hereof. In addition, this message and the attachments(if any)may contain information that is confidential,privileged and exempt from disclosure under applicable law.If you are not the intended recipient of this message,you are prohibited from reading, disclosing, reproducing,distributing, disseminating or otherwise using this transmission. Delivery of this message to any person other than the intended recipient is not intended to waive any right or privilege. If you have received this message in error,please promptly notify the sender by reply E-mail and immediately delete this message from your system. K.CXX :+C*C X********,..R.?<Y**********C 5is..CX SCTX X*;C X'X'X'X** %5'';C:<JC}C%.;C'5 mac:,'5 '5\\;C}C, .xx4***'C;C'SX?C}C*:L)C;C'C'\;CY'C%'X, **'r.****\X******X*TIC****, * This email and any files transmitted with it are confidential and intended solely for the use of the individual or entity to whom they are addressed.If you have received this email in error please notify the system manager. From: Conn, Angelina V [mailto:Aconn @carmel.in.aov] Sent: Wednesday, October 24, 2012 4:13 PM To: Jon Dobosiewicz Subject: RE: Docket No. 12070018 OA: Westmont PUD Ordinance Amend.? Hi,Jon— Did you get an answer on this yet? Shall I show this item on the Nov. 20 PC meeting agenda? Angie Conn, Planning Administrator City of Carmel Planning &Zoning Division Dept. of Community Services 1 Civic Square, 3rd Flr. Carmel, IN 46032 0: 317-571-2417 I F: 317-571-2426 ) E: aconn @carmel.in.00v W: www.carmeldocs.com • Please consider the environment before printing this e-mail 1 Conn, An kelina V From: Conn, Angelina V Sent: Friday, September 14, 2012 2:10 PM To: 'Jon Dobosiewicz' Subject: RE: plan commission info packets due today by noon Ok. then I will not show it on the October meeting agenda, until I know for sure that notice was made. Remember, most likely the public ad notice will have to be made in the Noblesville Times and NOT the IndyStar. Angie Conn Planning Administrator From: Jon Dobosiewicz [mailto:jond @NF-LAW.COM] Sent: Friday, September 14, 2012 11:44 AM To: Conn, Angelina V Subject: RE: plan commission info packets due today by noon Hi Angie, We are still waiting on the go ahead for Westmont. I will let you know before we notice the item so it can be placed on a PC agenda. Thanks, Jon Jon C.Dobosiewicz Land Use Professional Nelson&Frankenberger,PC 3105 East 98th Street,Suite 170 Indianapolis,IN 46280 317-844-0106(Office) 317-428-8393(Cell) 317-846-8782(Fax) ion @nf-law.com NOTICE OF CONFIDENTIALITY This E-mail message and its attachments(if any)are intended solely for the use of the addressee hereof. In addition,this message and the attachments(if any)may contain information that is confidential,privileged and exempt from disclosure under applicable law.If you are not the intended recipient of this message, you are prohibited from reading,disclosing, reproducing,distributing, disseminating or otherwise using this transmission. Delivery of this message to any person other than the intended recipient is not intended to waive any right or privilege.If you have received this message in error,please promptly notify the sender by reply E-mail and immediately delete this message from your system. ***T* r 's**XY.r Y*********************YY,.***S;:****r** ;***rr**Y******'5*********XY;;****** ';'s'sY;. , This email and any files transmitted with it are confidential and intended solely for the use of the individual or entity to whom they are addressed. If you have received this email in error please notify the system manager. 1 Conn, Angelina V From: Jon Dobosiewicz [jond @NF-LAW.COM] Sent: Wednesday, July 25, 2012 3:13 PM To: Conn, Angelina V Cc: Charlie Frankenberger Subject: Westmont PUD Amendment Angie, The applicant decided earlier today to wait until next month (September 18th)to hold the public hearing for the PUD Amendment. We therefore did not forward the notice to the Indianapolis Star for publication this Friday. Can you confirm that the item will not be placed on the agenda for the August 21st meeting date? We anticipate making notice for the September meeting and will let you know if this changes. Thanks, Jon Ion C.Dobosiewicz Land Use Professional Nelson&Frankenberger,PC 3105 East 98th Street,Suite 170 Indianapolis,IN 46280 317-844-0106(Office) 317-428-8393 (Cell) 317-846-8782 (Fax) jon @nf-law.com NOTICE OF CONFIDENTIALITY This E-mail message and its attachments(if any)are intended solely for the use of the addressee hereof.In addition,this message and the attachments(if any)may contain information that is confidential,privileged and exempt from disclosure under applicable law.If you are not the intended recipient of this message, you are prohibited from reading,disclosing,reproducing,distributing, disseminating or otherwise using this transmission.Delivery of this message to any person other than the intended recipient is not intended to waive any right or privilege.If you have received this message in error,please promptly notify the sender by reply E-mail and immediately delete this message from your system. ***Y************************ ******** ****Yc,****************** ***i.*****k*****x'.******yc'x,***********%:=x',* ******* ************************* This email and any files transmitted with it are confidential and intended solely for the use of the individual or entity to whom they are addressed.If you have received this email in error please notify the system manager. 1 NELSON & FRANKENBERGER A PROFESSIONAL CORPORATION ATTORNEYS AT LAW JAMES J.NELSON 3105 EAST 98TH STREET, SUITE 170 JANE B.MERRILL, CHARLES D.FRANKENBERGER INDIANAPOLIS, INDIANA 46280 Of Counsel JAMES E.SHINAVER LAWRENCE J.KEMPER PHONE: 317-844-0106 JOHN B.FLATT FACSIMILE: 317-846-8782 JON C.DOBOSIEWICZ, FREDRIC LAWRENCE Land Use Professional JAMES A.NICKLOY July 20, 2012 Angie Conn City of Carmel One Civic Square Carmel, IN 46032 (? U D Re: Text Amendment Application for the Westmont PUD (Z-507-07) Dear Angie: Enclosed you will find (i) a Rezone / Text Amendment Application for the Westmont PUD, (ii) the 2012 Westmont Text Amendment ordinance, (iii) a copy of a letter concerning the PUD from Mike Hollibaugh dated May 3, 2012, (iv) a copy of the Westmont PUD (Z-507-07), and (v) an aerial exhibit illustrating the location of the subject property. Our anticipated schedule is as follows: (August 21 — Plan Commission Public Hearing September 4— Subdivision Committee Plan Commission— (upon recommendation of the Subdivision Committee) City Council Consideration—(upon recommendation of the Plan Commission) We will soon be conferring with you to discuss the request. Should you have any questions please do not hesitate to call. Very truly yours, NELSON & FRANKENBERGER, P.C. ,L........_ n C. Dobosiewicz Land Use Professional -.',RECEPFD Enclosures _ Jill 2 0 2012 DOC) Westmont 2012-Ltr to A Conn 072012 �� i CITY OF CARMEL JAMES BRAINARD, MAYOR May 3,2012 Mr. Paul Estridge Jr. David Weekley Homes 12965 Old Meridian Street Carmel,IN 46032 Re: Westmont PUD Ordinance,Z-507-07 Dear Paul: The City of Carmel recently received an opinion from John Molitor, legal counsel to the Carmel Plan Commission,on the legality of Section 4.3 of the Westmont Planned Unit Development(PUD)ordinance which reads: Each Dwelling in the Westmont District shall be built by a builder which, during each of the five (5)calendar years prior to commencement of construction of such Dwelling in the Westmont District, has built fewer than one hundred(100)Dwellings per calendar year. It is Mr. Molitor's conclusion that the provision in 4.3,if enforced,would violate Indiana law,specifically IC 24-1-2-3,and,possibly federal law regarding interstate commerce. Based upon the opinion of Mr. Molitor,and with the concurrence of Mayor Brainard,the Department will not be enforcing Section 4.3 of Z-507-07,the Westmont PUD. Attached to this letter,please find a copy of Mr. Molitor's opinion. If you wish to discuss further the attached or any of the above, please call me at 317 571 2422,or email,mhollibaugh@@carmel.in.gov. Yours truly, • Michael Hollibaugh Director Copy: Mayor Jim Brainard Douglas Haney, Carmel City Attorney Westmont PUD file DEPARTMENT OF COMMUNITY SERVICES ONE CIVIC SQUARE, CARMEL, IN 46032 PHONE 317.571.2417, FAX 317.571.2426 MICHAEL P. HOLLIBAU!GH. DIRECTOR John R. Molitor Attorney at Law (317)843-5511 9465 Counselors Row, Suite 200 Fax(317)843-1543 Indianapolis,IN 46240-6150 e-mail jmolitor@prodigy.net MEMORANDUM To: Mike Hollibaugh,Director,Department of Community Services(DOCS) From: John Molitor, Counsel to the Carmel Plan Commission Date: May 2,2012 Re: Legality of Westmont PUD Ordinance You have asked me for a legal opinion regarding the ongoing validity and constitutionality of Section 4.3 of the referenced planned unit development district ordinance, which reads as follows: Section 4.3 Each Dwelling in the Westmont District shall be built by a builder which,during each of the five (5) calendar years prior to the commencement of construction of such Dwelling in the Westmont District,has built fewer than one hundred(100)Dwellings per calendar year. This ordinance was adopted by the City Council in 2007 after receiving a favorable recommendation by the Plan Commission. When I inquired recently of DOCS staff about the impact that this section has had on builder activity, it was reported back to me that only two building permits had yet been issued for homes in the Westmont district. I was astonished; this is a planned, 143-lot subdivision, but there have been only two permits taken down in five years. Apparently, Section 4.3 has dampened — if not completely eliminated—economic activity in this district since the ordinance was adopted. On its face, Section 4.3 discriminates against all larger companies engaged in homebuilding —that is, those who are regularly building 100 or more homes every year. Moreover, it obviously has a disparate impact on homebuilders who are engaged in interstate commerce (doing business in more than one state). Most— if not all — regional and national companies build well over 100 homes per year, or they simply won't survive in a multistate market. Certainly, these factors indicate that the provisions of Section 4.3 are restraining or restricting trade and probably interfering with interstate commerce. Combinations in restraint of trade have been prohibited in virtually every state now for at least a century. Indiana's existing statutes on this topic date back to 1907, and they have remained essentially unchanged since that time; see, for example, Ind. Code § 24-1-2-3 (attached); cf. Harvest Insurance Agency v. Inter-Ocean Insurance Company, 492 N.E.2d 686, 688 (Ind. 1986) ("Covenants not to compete are in restraint of trade and are not favored by the law"). Thus, even where the PUD applicants and their representatives have drafted and agreed to include the restraint in their own PUD ordinance, there is a risk that the City as well as the PUD proponents could be charged with illegally engaging in a scheme to restrain trade. The notion that state and local governments may not unduly regulate interstate commerce is even more fully established. It dates back to the adoption of the U.S. Constitution and has been recognized in many decisions of the Supreme Court of the United States; see, for example,Pike v. Bruce Church, 397 U.S. 137, 142 (1970),where the Court's opinion stated: Where the statute regulates evenhandedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental,it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits. If a legitimate local purpose is found,then the question becomes one of degree.And the extent of the burden that will be tolerated will of course depend on the nature of the local interest involved, and on whether it could be promoted as well with a lesser impact on interstate activities. Memo to Mike Hollibaugh May 2, 2012 Page 2 of 2 In the case of Westmont, where a PUD ordinance has practically prohibited companies that are engaged in interstate commerce from ever building in the PUD district— without any apparent, legitimate local purpose—it seems unlikely that it could ever be upheld. In light of the above, then, it is my opinion that Section 4.3 violates Indiana law and may even violate the interstate commerce clause of the U.S. Constitution. Therefore, my recommendation is that the City should decline to enforce it,at least until such time as the Plan Commission and City Council may have an opportunity to consider repealing it or replacing it with ordinance provisions that comply with State and Federal law. Attachment: Ind. Code § 24-1-2-3 y 4 ATTACHMENT IC 24-1-2-3 Restraint of bidding for letting contracts; offense Sec. 3.A person who engages in any scheme, contract,or combination to restrain or restrict bidding for the letting of any contract for private or public work,or restricts free competition for the letting of any contract for private or public work, commits a Class A misdemeanor. [Formerly:Acts 1907, c.243, s.3; as amended by Acts 1978,P.L.2, Sec.2404.] Note: The 1978 legislative amendment merely classified the offense as a Class A misdemeanor, without changing its elements. We 31 Conn, An•elina V From: Hollibaugh, Mike P Sent: Wednesday,July 11, 2012 9:27 AM To: 'Jon Dobosiewicz' Cc: Conn, Angelina V Subject: Westmont Attachments: DOC278.pdf Contacts: Paul Estridge Jr. Jon, attached is letter sent to Paul Estridge stating with City's position on the Westmont PUD builder limitation... The letter can be updated for you or a particular client if that would be helpful. In that vein, we are currently working under the premise that this letter is sufficient to allow for the pulling of permits in Westmont, and are not currently planning to bring a PUD amendment to the Council. We can talk more about this at your convenience. My day is pretty open, all day. Mike H. 1 Conn, An•elina V From: Jon Dobosiewicz[jond@NF-LAW.COM} Sent: Monday,July 09, 2012 8:59 AM To: Hollibaugh, Mike P Cc: Charlie Frankenberger; Conn, Angelina V Subject: RE: Westmont PUD Follow Up Flag: Follow up Due By: Monday,July 09, 2012 1:30 PM Flag Status: Flagged ° • Mike, I hope you had a good break over the 4th. Angie and I met last week to discuss Westmont and she indicated you had discussed this with her and we wanted to get your thoughts. Do you have time this week to discuss the Westmont PUD? Charlie and I are generally available any time Wednesday after 9am or on Thursday afternoon. Thanks, Jon C. Dobosiewicz Land Use Professional Nelson&Frankenberger,PC 3105 East 98th Street,Suite 170 Indianapolis,IN 46280 317-844-0106(Office) 317-428-8393 (Cell) 317-846-8782(Fax) jon @nf-law.com From: Jon Dobosiewicz Sent: Tuesday, July 03, 2012 8:00 AM To: 'Conn,Angelina V'; 'Hollibaugh, Mike P' Cc: Charlie Frankenberger Subject: Westmont PUD Angie, Thank you for meeting with me yesterday to discuss the builder provision in the Westmont PUD. As you recommended we should follow up with Mike to discuss your understanding that staff was going to advance an amendment to this provision. I will be out of the office and returning on Monday, July 11. I will contact Mike then to arrange a meeting time. We will plan on filing an application by July 20 to make a August 21 Plan Commission public hearing and wait to discuss with Mike his thoughts on a modification (requiring action only by the Plan Commission) or a text amendment to the PUD requiring council action. Thanks again, Jon C. Dobosiewicz Land Use Professional Nelson&Frankenberger,PC 3105 East 98th Street, Suite 170 Indianapolis,IN 46280 317-844-0106(Office) 317-428-8393(Cell) 317-846-8782(Fax) 1