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Homeowners' association can enforce ban on child day care

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The Indiana Court of Appeals reversed the decision that would allow two homeowners to run a child care operation out of their residences. The homeowners’ association has restrictive covenants in place prohibiting the operation of a child care home.

In Benjamin Crossing Homeowners' Association, Inc. v. Rose Heide and David F. Wilkerson, No. 79A04-1103-PL-185, Rose Heide and David Wilkerson, residents of Benjamin Crossing, sought damages and a declaratory judgment that the Tippecanoe Area Building Commission and the Benjamin Crossing Homeowners’ Association couldn’t enforce a restrictive covenant preventing the operation of a child care home in their residence. The restrictive covenant was also incorporated into the planned unit development ordinance for Benjamin Crossing, but state law prohibits enforcement of a zoning ordinance that prohibits the operation of a child care home in a residence.

The trial court ruled in favor of the homeowners, but the Court of Appeals reversed. It found the trial court erred when it concluded that “restrictive covenants of a planned unit development have the status of a zoning ordinance” and that, because a zoning ordinance may not prohibit the operation of a child care home in the operator’s residence, neither may such a restrictive covenant be enforced where the restrictive covenant has been adopted in a planned unit development ordinance.

The planned unit development ordinance has no effect on the homeowners’ association’s authority to enforce the private restrictive covenants at issue, wrote Judge Edward Najam.

“The prohibition against a zoning ordinance barring the operation of a child care home in a residence is directed to the municipality and renders any such ordinance unenforceable by the municipality. On the other hand, the restrictive covenants in the Declaration set out the mutual obligations and rights of property owners to each other,” he wrote. “Those restrictive covenants are enforceable by the private parties to the Declaration and were not vitiated by the adoption of the planned unit development ordinance that included them.”

 

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  1. The practitioners and judges who hail E-filing as the Saviour of the West need to contain their respective excitements. E-filing is federal court requires the practitioner to cram his motion practice into pigeonholes created by IT people. Compound motions or those seeking alternative relief are effectively barred, unless the practitioner wants to receive a tart note from some functionary admonishing about the "problem". E-filing is just another method by which courts and judges transfer their burden to practitioners, who are the really the only powerless components of the system. Of COURSE it is easier for the court to require all of its imput to conform to certain formats, but this imposition does NOT improve the quality of the practice of law and does NOT improve the ability of the practitioner to advocate for his client or to fashion pleadings that exactly conform to his client's best interests. And we should be very wary of the disingenuous pablum about the costs. The courts will find a way to stick it to the practitioner. Lake County is a VERY good example of this rapaciousness. Any one who does not believe this is invited to review the various special fees that system imposes upon practitioners- as practitioners- and upon each case ON TOP of the court costs normal in every case manually filed. Jurisprudence according to Aldous Huxley.

  2. Any attorneys who practice in federal court should be able to say the same as I can ... efiling is great. I have been doing it in fed court since it started way back. Pacer has its drawbacks, but the ability to hit an e-docket and pull up anything and everything onscreen is a huge plus for a litigator, eps the sole practitioner, who lacks a filing clerk and the paralegal support of large firms. Were I an Indiana attorney I would welcome this great step forward.

  3. Can we get full disclosure on lobbyist's payments to legislatures such as Mr Buck? AS long as there are idiots that are disrespectful of neighbors and intent on shooting fireworks every night, some kind of regulations are needed.

  4. I am the mother of the child in this case. My silence on the matter was due to the fact that I filed, both in Illinois and Indiana, child support cases. I even filed supporting documentation with the Indiana family law court. Not sure whether this information was provided to the court of appeals or not. Wish the case was done before moving to Indiana, because no matter what, there is NO WAY the state of Illinois would have allowed an appeal on a child support case!

  5. "No one is safe when the Legislature is in session."

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