ILNews

Amended ordinance doesn't apply to travel plaza

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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.

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  1. Well, maybe it's because they are unelected, and, they have a tendency to strike down laws by elected officials from all over the country. When you have been taught that "Democracy" is something almost sacred, then, you will have a tendency to frown on such imperious conduct. Lawyers get acculturated in law school into thinking that this is the very essence of high minded government, but to people who are more heavily than King George ever did, they may not like it. Thanks for the information.

  2. I pd for a bankruptcy years ago with Mr Stiles and just this week received a garnishment from my pay! He never filed it even though he told me he would! Don't let this guy practice law ever again!!!

  3. Excellent initiative on the part of the AG. Thankfully someone takes action against predators taking advantage of people who have already been through the wringer. Well done!

  4. Conour will never turn these funds over to his defrauded clients. He tearfully told the court, and his daughters dutifully pledged in interviews, that his first priority is to repay every dime of the money he stole from his clients. Judge Young bought it, much to the chagrin of Conour’s victims. Why would Conour need the $2,262 anyway? Taxpayers are now supporting him, paying for his housing, utilities, food, healthcare, and clothing. If Conour puts the money anywhere but in the restitution fund, he’s proved, once again, what a con artist he continues to be and that he has never had any intention of repaying his clients. Judge Young will be proven wrong... again; Conour has no remorse and the Judge is one of the many conned.

  5. Pass Legislation to require guilty defendants to pay for the costs of lab work, etc as part of court costs...

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