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.


Sponsored by
Subscribe to Indiana Lawyer
  1. If a class action suit or other manner of retribution is possible, count me in. I have email and voicemail from the man. He colluded with opposing counsel, I am certain. My case was damaged so severely it nearly lost me everything and I am still paying dearly.

  2. There's probably a lot of blame that can be cast around for Indiana Tech's abysmal bar passage rate this last February. The folks who decided that Indiana, a state with roughly 16,000 to 18,000 attorneys, needs a fifth law school need to question the motives that drove their support of this project. Others, who have been "strong supporters" of the law school, should likewise ask themselves why they believe this institution should be supported. Is it because it fills some real need in the state? Or is it, instead, nothing more than a resume builder for those who teach there part-time? And others who make excuses for the students' poor performance, especially those who offer nothing more than conspiracy theories to back up their claims--who are they helping? What evidence do they have to support their posturing? Ultimately, though, like most everything in life, whether one succeeds or fails is entirely within one's own hands. At least one student from Indiana Tech proved this when he/she took and passed the February bar. A second Indiana Tech student proved this when they took the bar in another state and passed. As for the remaining 9 who took the bar and didn't pass (apparently, one of the students successfully appealed his/her original score), it's now up to them (and nobody else) to ensure that they pass on their second attempt. These folks should feel no shame; many currently successful practicing attorneys failed the bar exam on their first try. These same attorneys picked themselves up, dusted themselves off, and got back to the rigorous study needed to ensure they would pass on their second go 'round. This is what the Indiana Tech students who didn't pass the first time need to do. Of course, none of this answers such questions as whether Indiana Tech should be accredited by the ABA, whether the school should keep its doors open, or, most importantly, whether it should have even opened its doors in the first place. Those who promoted the idea of a fifth law school in Indiana need to do a lot of soul-searching regarding their decisions. These same people should never be allowed, again, to have a say about the future of legal education in this state or anywhere else. Indiana already has four law schools. That's probably one more than it really needs. But it's more than enough.

  3. This man Steve Hubbard goes on any online post or forum he can find and tries to push his company. He said court reporters would be obsolete a few years ago, yet here we are. How does he have time to search out every single post about court reporters and even spy in private court reporting forums if his company is so successful???? Dude, get a life. And back to what this post was about, I agree that some national firms cause a huge problem.

  4. rensselaer imdiana is doing same thing to children from the judge to attorney and dfs staff they need to be investigated as well

  5. Sex offenders are victims twice, once when they are molested as kids, and again when they repeat the behavior, you never see money spent on helping them do you. That's why this circle continues