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Legally preserving history

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Leaky roofs, broken windows, cracked pavement, or dangerous tree limbs are red flags indicating neglect of a piece of property or real estate.

But while the age of a building, and whether it is considered to have historic significance, might add a new level of legal nuance to disputes surrounding the preservation and upkeep of properties, some Hoosier lawyers and preservationists say that “preserving history” does not typically drive the legal remedy. Real estate, property negligence, and zoning laws are often utilized to preserve, restore, or protect sites having historic significance.

negligent-15col The Lodge apartment building at 829 N. Pennsylvania Ave. in downtown Indianapolis was built in 1905, and now it’s one of two historic sites the city legal department has filed a suit against because the owner let it become a public nuisance.. (IBJ Photo/ Perry Reichanadter)

“Just because something is historic, that doesn’t mean there’s any protection locally,” said Indianapolis attorney Tom Engle, who represents Indiana Landmarks and handles historic preservation cases throughout the state. “There’s some historic preservation statutes that can be used, but most often it comes down to building codes and local ordinances that make the difference on these properties that are vacant or not kept up.”

One of the most effective tools that Indiana Landmarks pioneered to help save historic sites is the use of receiverships, according to both Engle and Mark Dollase, the organization’s vice president of preservation services. They were first used almost a decade ago and have been used occasionally since then. The court can assign a receiver to determine and make improvements on a property, and the receiver then returns to the property owner for potential reimbursement, allowing the original property owner to retain the title. If that does not happen, the organization can work to get that deed through sheriff’s sale for ownership or resale down the road.

“Receiverships generally turn out the way you might want them to, but it never moves quickly enough,” Dollase said. “So as a result, you face market changes and what was true for a real estate sale when you started isn’t necessarily where you end up.”

That happened the first time the organization used a receivership about eight years ago to repair a historic building in Indianapolis. The structure collapsed from the weight of a snowstorm before Indiana Landmarks could preserve the building, he said. The group has used the receivership mechanism in other locations throughout the city, as well as sites in New Castle and one currently pending in South Bend.

“It’s a great tool, you just have to know it will take a while to get to other end. You have to plan an out, knowing who the end user might be from the start and if it’ll be worth investing the time and money when you might not get money back,” he said. “For us, that monetary loss can come with the knowledge that we’re meeting our mission and so it might be worth it.”

Aside from receiverships, Engle and Dollase said they have used architectural and conservation easements to offer protection for owners who want to retain a title to a property but also want the historic preservation protection. The easements typically result in a loss in value, but that can be worthwhile to preserve the property in the long run.

Targeting neglect

In Indianapolis, the city prosecutor filed two lawsuits April 11 against a pair of property owners who are accused of allowing their historically designated properties to become public eyesores or community dangers.

One suit targets James E. Chalfant and Chadwick Partners Inc., owners of the 1925 Chadwick Building at 1005 N. Pennsylvania St. A two-alarm fire inside the vacant 31,000 square foot building in January gutted what was left, and the city demolished the building following that fire. This was at least the third fire in the past decade, and the city asserts this final destructive fire and subsequent demolition was a “foreseeable result of unreasonable neglect” by the owners.

The second suit filed that same day targets Caroline Briggs, owner of the 1905 Lodge apartment building at 829 N. Pennsylvania St., on allegations that she unreasonably caused community damage by allowing that building to “become dilapidated, harbor vermin, serve as a temporary residence for vagrants, and contribute to blight.” As a result of those conditions, the health and safety of residents has been put in danger and the city has had to spend money in responding to those conditions, the suit says.

Specifically, the suits use Indiana Code § 36-7-11.1-12 in saying the owners failed to maintain real estate in a good state of repair and a safe condition and that both are nuisances. IC §32-30-6 allows for a civil action to abate or enjoin a nuisance. The Briggs suit also delves into various counts based on local code requiring that windows, exterior doors, and other parts of a historic building be adequately maintained.

Both filings are part of the city’s broader effort to crack down on negligent property owners. It is a joint effort by Indianapolis code enforcement and legal officials as the city acts as the enforcement official on behalf of the Indianapolis Historic Preservation Commission, which has jurisdiction over the two properties in the St. Joseph Historic District. In the Chadwick suit, the city wants to recoup the cost of emergency demolition and punitive damages, while in the Briggs suit, it is requesting injunctive relief, fines, and punitive damages.

“Repeat citations and enforcement actions against Briggs have failed to produce any improvements, and the deteriorated condition of Mr. Chalfant’s property unreasonably harmed the city and the citizens it serves by contributing to urban blight,” said city prosecutor Helen Marchal in the Office of Corporation Counsel.

This type of litigation isn’t used commonly, Marchal said, but it’s a resource that is always available if someone doesn’t resolve a negligent property issue or work with city officials to avoid it becoming a nuisance or danger.

Indianapolis attorney Bryce Bennett with Riley Bennett & Egloff found the city’s approach interesting, particularly in the demolished Chadwick situation where Indianapolis is attempting to recover money spent on combating the recent fire and building demolition. He worked in the 1990s with then-mayor and attorney Stephen Goldsmith to first use that legal move as a way to maintain properties and neighborhoods.

“We pioneered the whole idea of using public nuisance laws to go after absentee landlords and gain control of those properties for the community’s benefit,” he said. “That was very effective, and it sounds as though they’re using those same laws now and expanding it to recover money damages.”

In his legal work in these areas, Bennett pointed to his representation on the city market and other local historic preservation projects that delve into these many real estate and building issues.

“This is not the most exciting area of law, but there’s a lot of litigation that falls into it. You usually do have administrative remedies locally, but we found that litigation was more direct and effective and the most cost-effective.”

For those looking at the larger historical preservation picture, the end result of these lawsuits and legal challenges often isn’t the broader issue at play.

Dollase and Engle said they don’t see many lawsuits relating to historic preservation. They added that Indiana Landmarks tries to be judicious about using litigation, though it isn’t afraid to turn to the courts if needed.

“You don’t have a lot of caselaw in Indiana on these types of issues, since most of the time that’s not something that would go up on appeal,” Engle said. “That’s because it’s not about winning in court, and usually it’s not just a court battle that saves a historic building – it’s what comes after that in moving, demolishing, or adaptively reusing that property. Court may be a starting point, but it’s usually not the end of it.”•

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    The best book out there on land use is "Geography of Nowhere" by James Howard Kunstler. Read it and weep! What a disaster our communities have become since ww II.

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  1. Am I the only one who sees that the City is essentially giving away the MSA site AND giving millions to build new buildings on the site when this site would be the perfect place for the Justice Complex? Across from City-County, check; keeping it centrally located, check, etc. It's my understanding that the GM site must be purchased by the City from Motors Liquidation Company. STOP WASTING WHAT WE ALREADY HAVE AND OUR TAX DOLLARS! The Ballard Administration has not been known for it's common sense...never voted for him and never will!

  2. This guy sounds like the classic molester/manipulator.

  3. Louis D. Brandeis was born in 1856. At 9 years of age it would have been 1865. The Brandeis family did not own slaves. My source Louis D. Brandeis: A Life, by Melvin L. Urofsky.

  4. My name is Matthew Lucas Major, I recently went through a jury trial in Bloomington , In. It was the week of Feb 19-21. Although I have been incarcerated since August 5, 2014. The reason I 'am writing to you sir is on the 21 of February the jury came in with a very excessive and wrongful verdict of guilty on 6 child molesting charges against my daughter who was 9 at the time I was accused. I also had 2 other Felonies one of Intimidation and 1 of Sexual Vicarious Gratification. Judge Marc Kellam on the second day of trial gave me a not guilty on those 2 felonies. The jury was sent out during that time and when brought back Judge Kellam told them to not concern themselves with the 2 Felonies that he ruled on them. They were told to not let evidence they had already heard influence there verdicts. I never in my life touched any child sexually and definitely not with my own daughter. When I was arrested Detective Shawn Karr told me I would be convicted guilty just on my daughters word even without evidence. That's just what happened. my public defender did me so wrong he never once proved to the court and jury all the lies the child told, and Jeremy Noel my public defender could of proven the lies easily. The stories in Serenity's depositions and Forensic interview changed and were not consistent as Prosecutor Darcie Fawcett claimed they were. Yet my attorney never mentioned that. The facts that the child accused me of full penetration in her vagina and rectum was proven lies. Doctor Roberta Hibbard of Riley hospital in Indianapolis confirmed Serenity's hymen intact, no scars, no tearing, no signs of rape to her. Yet my attorney didn't use that knowledge . the DNA was all in my favor. I tell you I will spend my entire life in prison going through rape and beatings etc. even Judge Kellam abused his authority by telling the jurors to listen and believe what the prosecutors side in evidence like my daughters testimony. In one interview with the detectives my daughter got flustered with her mom and said on camera " I'm saying what you told me to mom"!! Yet Mr. Noel said nor did anything to even resemble a defense attorney. Judge Kellam allowed edited version of a taped conversation between the child and her mother. Also Judge Kellam allowed the Prosecutor too bring in to my case a knife found under my seat, the knife wasn't part of my case. She was allowed by my attorney and the judge to put a huge picture of it on the screen and huge picture of my naked privates in a full courtroom and open court. Ms. Fawcett says to jury see how easy Mr. Major could reach the knife and cut his Childs throat. Even though I had no weapons charge against these cases. This gave the jurors prejudice thought against me thinking I threatened her with that knife and how scared she would of been knowing i could get it and kill her. On my sentencing court March 19, 2014 my public defender told Judge Kellam he wish to resign from being my attorney and wished for the court to give me outside council to file a error to trial or appeal. We were denied. Now after openly knowing my public defender don't want to represent me he has to. Well when as parents we make our kids clean a room when they really don't wish to, well the child will but don't mean she will do a good job, that's where I'm at with Mr. Noel. please dont ignore mine and my families pleas for your help . we have all the legal proof you could need to prove Im innocent. Please dont make my spend years in prison innocent when you can fix this wrong. Im not saying Im a perfect man or that I was a perfect dad to my 2 children none of us are. Ive made some bad choices in life and I paid for them. But I didnt ever touch or rape my daughter . I love my children with all my heart. And now through needing attention and a ex-wife who told my granny several times she wish she could put me in prison to get me out of their lives. Well my ex finally accomplished her goal. Sad part is she is destroying our daughter with all this horrific lies and things she taught my daughter to say. My daughter will need therapist to ever hope for a chance of a normal life after what she had done to her by her mom and their side of the family. My daughter told everyone even on stand she had a dream months before i supposedly molested her in this dream I was molesting her and when I finally did it matched her dream perfectly. She admitted to watching movies about little girls being molested and watching U-Tube videos about child molesting all before it happened supposedly to her. Doesn't that sound very unusual that a non molested 9 yr old would need to know so much about being molested? The only reason I could think a 9 year old would need so much information is to be prepared to know what to say and be able to say how it felt what took place etc.. So when questioned by authorities she would be prepared. And there again sir if a parent is pre grooming a 9 year old child she would need intimate details . Like telling her daughter about a couple moles on my private area. The child admitted to sneaking my cell and looking many many times at nudes of me and my girlfriend even one where my penis was entering my girlfriends vagina. In that picture my moles are obvious. Yet when prosecutor showed everyone in court my privates and pictures of the moles she said the only way the child would know about them is if she saw them for herself. My attorney once again said nothing about the pictures my child saw. Or could a ex-wife be able to describe my moles to help her case against getting rid of me? I beg you help me. This is my very existence. Ive lost everything , a good job, a wonderful girlfriend, my freedom, but worse thing Ive lost is my children. They were my reason to get up every morning and strive to be better. The wonderful bond I had with my Serenity is gone. After this I would be afraid to even hug her for fear of what next can they do to me. I'm not afraid to tell you I sit here in this cell and try to hold back my tears. Everyone knows you cant show weakness in prison. My life has already been threatened here at Wabash Valley Prison. After only 3 days of arrival. I was tricked into signing a waiver now Im in G Block General Population with 6 child molesting felony charges. Mrs. Hart as a 18 year old I almost died hooked to machines in hospital almost 1 month and now I know that fear was childish compared to this . I cant help but put emotions in this, after all Mrs. Hart Im human and God help Me I never been more afraid in my life. I didnt hurt my little girl I didnt touch her sexually. As much as it shreds me and fills my mind what Im facing I worry more about my mom and granny because of their great love for me mam they are suffering so deeply. I aint done this things but my loved ones suffering right along beside me and If you take my case you will be in essence freeing them also. I sent momma this letter and asked her to email it to you. I'm scared I have been done so unjustly by our legal system and I need you to fix this and give me freedom. I ask you please don't just ignore my pleas. Here in America its nice to be able to trust our legal justice system, well they destroyed my and my loved ones trust in our justice system . And I'm trusting in You !!! My entire family is suffering this nightmare with me. My 77 year old granny had a stroke and isn't doing so well. My single mother that raised 3 kids alone is dying from Lupus and since my arrest has stayed so sick and weary. Our lives torn to peices by a government I was taught I could trust in. my momma has tried so many innocent project and wrongfully accused and cant get anywhere. please please help me. A quote from the late Nelson Mandela: To be free is not merely to cast off ones chains, But to live in a way that respects and enhances The Freedom Of Others. I have Faith in you and your clinic to cast my chains off and give me freedom I do deserve as a wrongfully accused Man, son, brother, father, friend. Matthew Major DOC# 246179 Cause # : 53c02-1308-FA-000779 God Bless you. Please contact me with your decision so I know you made a life changing decision for me , just please at least write me so I know you care enough about your citizens to respond to cries for your help. You can speak openly with my mother Charlotte Spain (828) 476-0406: 71 Lakeview Dr. Canton, NC 28716 Thank You Matthew Major I know yall get thousands of request and inmates claiming innocence, and each person who are innocent deserve to have organizations like yours willing to fight for them and I give yall so much Thanks and I thank God everyday yall are out there caring enough to help free the innocents. Since discovering firsthand how easily lives and families can be destroyed by Poor Defense attorneys not doing their job . And Prosecutors allowed to do as they please in court

  5. Frankly, it is tragic that you are even considering going to an expensive, unaccredited "law school." It is extremely difficult to get a job with a degree from a real school. If you are going to make the investment of time, money, and tears into law school, it should not be to a place that won't actually enable you to practice law when you graduate.

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