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. Just an aside, but regardless of the outcome, I 'm proud of Judge William Hughes. He was the original magistrate on the Home place issue. He ruled for Home Place, and was primaried by Brainard for it. Their tool Poindexter failed to unseat Hughes, who won support for his honesty and courage throughout the county, and he was reelected Judge of Hamilton County's Superior Court. You can still stand for something and survive. Thanks, Judge Hughes!

  2. CCHP's real accomplishment is the 2015 law signed by Gov Pence that basically outlaws any annexation that is forced where a 65% majority of landowners in the affected area disagree. Regardless of whether HP wins or loses, the citizens of Indiana will not have another fiasco like this. The law Gov Pence signed is a direct result of this malgovernance.

  3. I gave tempparry guardship to a friend of my granddaughter in 2012. I went to prison. I had custody. My daughter went to prison to. We are out. My daughter gave me custody but can get her back. She was not order to give me custody . but now we want granddaughter back from friend. She's 14 now. What rights do we have

  4. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  5. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

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