ILNews

Amended ordinance doesn't apply to travel plaza

Back to TopE-mailPrintBookmark and Share

An Allen Superior Court correctly ruled that a travel plaza had a vested right to develop its plans under an original zoning ordinance, the Indiana Court of Appeals affirmed today.

The case of City of New Haven Board of Zoning Appeals v. Flying J. Inc., No. 02A03-0905-CV-74, came before the appellate court again after the Court of Appeals ruled that all of the proposed services Flying J wanted to offer at its 17.7-acre site were permitted under the zoned C-1 District. The New Haven Board of Zoning Appeals determined certain proposed services weren't permitted under the C-1 zoning ordinance.

The case was remanded to enter a final order in favor of Flying J, but while the litigation was under way, New Haven amended its C-1 zoning ordinance restricting the size of service stations to 2 acres or less. As applied, the amended ordinance affected only Flying J.

Flying J was unaware of the zoning changes and submitted its development plan to the BZA; the board rejected it citing the amended ordinance. The trial court reversed.

At issue is whether the amended zoning ordinance is applicable to Flying J's planned travel plaza. The BZA argued because Flying J hadn't begun construction on the plaza, it had no vested right to develop it pursuant to the original zoning ordinance; Flying J argued it had a vested right, its plaza is a nonconforming use, and the amended zoning ordinance doesn't apply.

The Court of Appeals relied on several cases including the three involving the Metropolitan Development Commission of Marion County v. Pinnacle Media. In Pinnacle I, 836 N.E.2d 422, 424 (Ind. 2006), the Indiana Supreme Court emphasized that the developer had yet to begin construction on the billboards in question. In Pinnacle II, 846 N.E.2d 654, 655-56 (Ind. 2006), the high court further explained vested rights may well accrue prior to filing of certain applications. The Court of Appeals determined in Pinnacle III, 868 N.E.2d 894, 900-01 (Ind. Ct. App. 2007), that there is no bright-line rule that construction has to begin to show a vested right and that the existence of vested rights is fact-dependent.

"We read the Pinnacle cases to mean that, while construction definitely does establish a vested right, mere preliminary work, including filing of a building permit, does not. In situations falling between these two extremes, courts must engage in a fact-sensitive analysis to determine whether vested rights have accrued prior to application for a building permit or construction," wrote Judge Paul Mathias.

In the instant case, Flying J hadn't begun construction but it had spent millions of dollars to prepare for construction, including surveying and engineering costs. These costs could give rise to a vested right, wrote the judge.

Under the facts and circumstances of the case, the appellate court couldn't say the trial court erred in finding the amended zoning ordinances were subject to Flying J's vested right in the property and the amended ordinance wasn't applicable to the plaza.

ADVERTISEMENT

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. This is the dissent discussed in the comment below. See comments on that story for an amazing discussion of likely judicial corruption of some kind, the rejection of the rule of law at the very least. http://www.theindianalawyer.com/justices-deny-transfer-to-child-custody-case/PARAMS/article/42774#comment

  2. That means much to me, thank you. My own communion, to which I came in my 30's from a protestant evangelical background, refuses to so affirm me, the Bishop's courtiers all saying, when it matters, that they defer to the state, and trust that the state would not be wrong as to me. (LIttle did I know that is the most common modernist catholic position on the state -- at least when the state acts consistent with the philosophy of the democrat party). I asked my RCC pastor to stand with me before the Examiners after they demanded that I disavow God's law on the record .... he refused, saying the Bishop would not allow it. I filed all of my file in the open in federal court so the Bishop's men could see what had been done ... they refused to look. (But the 7th Cir and federal judge Theresa Springmann gave me the honor of admission after so reading, even though ISC had denied me, rendering me a very rare bird). Such affirmation from a fellow believer as you have done here has been rare for me, and that dearth of solidarity, and the economic pain visited upon my wife and five children, have been the hardest part of the struggle. They did indeed banish me, for life, and so, in substance did the the Diocese, which treated me like a pariah, but thanks to this ezine ... and this is simply amazing to me .... because of this ezine I am not silenced. This ezine allowing us to speak to the corruption that the former chief "justice" left behind, yet embedded in his systems when he retired ... the openness to discuss that corruption (like that revealed in the recent whistleblowing dissent by courageous Justice David and fresh breath of air Chief Justice Rush,) is a great example of the First Amendment at work. I will not be silenced as long as this tree falling in the wood can be heard. The Hoosier Judiciary has deep seated problems, generational corruption, ideological corruption. Many cases demonstrate this. It must be spotlighted. The corrupted system has no hold on me now, none. I have survived their best shots. It is now my time to not be silent. To the Glory of God, and for the good of man's law. (It almost always works that way as to the true law, as I explained the bar examiners -- who refused to follow even their own statutory law and violated core organic law when banishing me for life -- actually revealing themselves to be lawless.)

  3. to answer your questions, you would still be practicing law and its very sad because we need lawyers like you to stand up for the little guy who have no voice. You probably were a threat to them and they didnt know how to handle the truth and did not want anyone to "rock the boat" so instead of allowing you to keep praticing they banished you, silenced you , the cowards that they are.

  4. His brother was a former prosecuting attorney for Crawford County, disiplined for stealing law books after his term, and embezzeling funds from family and clients. Highly functional family great morals and values...

  5. Wondering if the father was a Lodge member?

ADVERTISEMENT