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Absence of a plan foils development proposal

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A plan commission did not overstep its authority when it turned down a proposal to build a 300-unit apartment complex, in part, because the developer did not submit a preliminary plan for the project.  

Brookview Properties LLC filed a development plan with the town of Plainfield for a multi-family housing complex in the 25-acre Hearthview parcel of the Metropolis Plan Unit Development.

After a public hearing, the commission denied Brookview’s petition.

A trial court entered a judgment in favor of the commission, but Brookview appealed to the Indiana Court of Appeals claiming the plan commission exceeded its authority when it decided the apartment was inappropriate for the Metropolis PUD.

To support its argument, Brookview pointed out that only the Plainfield Town Council has the power to zone. The plan commission serves an advisory role and has no ability to create zoning districts or rezone land.

However, Brookview does not dispute the commission’s contention that approval of a preliminary plan is required to determine a use for the Hearthview parcel. Since no preliminary plan was approved, the parcel had not designated use.

The plans filed with the PUD do not meet the requirements for a preliminary plan and, a commissioner member noted, Brookview’s petition contained only a concept plan.

Although Brookview argued there is no significant difference between a concept plan and a preliminary plan, the Indiana Court of Appeals declined to ignore the distinction.

“Each of Brookview’s arguments on the issue of whether the Hearthview parcel is designated multifamily is based on the premise and contingent on a determination that a preliminary plan had been approved,” Judge Edward Najam wrote in Brookview Properties, LLC and First Merchants Bank of Central Indiana v. Plainfield Plan Commission, 32A04-1312-PL-606. “We hold that the evidence and reasonable inferences therefrom show that no preliminary plan was approved for the Hearthview parcel, and without a preliminary plan, there was no designated land use for that parcel.”
 

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  1. Thank you, John Smith, for pointing out a needed correction. The article has been revised.

  2. The "National institute for Justice" is an agency for the Dept of Justice. That is not the law firm you are talking about in this article. The "institute for justice" is a public interest law firm. http://ij.org/ thanks for interesting article however

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