ILNews

Judges disagree on meaning of language in city ordinance

Back to TopCommentsE-mailPrintBookmark and Share

The Indiana Court of Appeals reversed a trial court in a property dispute, but Judge Ezra Friedlander disagreed with the majority based on his interpretation of “conspicuous change.”

In New Albany Historic Preservation Commission and City of New Albany v. Bradford Realty, Inc., No. 22A01-1108-PL-365, the New Albany Historic Preservation Commission and City of New Albany (NAHPC) appealed the trial court’s grant of summary judgment in favor of Bradford Realty. Bradford, which has owned a building in downtown New Albany since 1966, had successfully argued at trial that it was not required to obtain permission for exterior repairs because the NAHPC had never notified Bradford that its building was in a designated historic district.

In 1999, New Albany created Ordinance Section 151.06, which established rules and procedures pertaining to external modifications of buildings within its historic district. While the city published a notice about a public meeting before adopting the ordinance, it did not notify individual property owners of the impending rule. The ordinance was adopted in 2002.

In 2008, Bradford began to renovate the exterior of its building, replacing worn clapboard with vinyl siding. The historic preservation commission sent a letter notifying Bradford that Bradford needed a certificate of appropriateness before proceeding with an exterior modification of the property. Bradford responded that because it owned the building before the historic district existed, it was not bound by provisions of the ordinance. After completing repairs to the exterior, Bardford filed for its certificate of appropriateness as a courtesy to the Historic Preservation Commission, and the application was denied.

At trial, Bradford contended the NAHPC was obligated under the United States Constitution’s 14th Amendment to provide notice of the ordinance. But citing Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950), the Court of Appeals disagreed.

Applying Mullane, the appellate court held that the city ordinance was a legislative act that did not fall within the purview of due process requirements under the 14th Amendment. It therefore reversed and remanded to the trial court to enter summary judgment for NAHPC.

In his dissent, Friedlander said that the ordinance requires property owners to obtain permission before making “conspicuous changes,” and in this context, he interpreted that to mean a change in character, with respect to appearance.

Looking at before and after photos of the building, Friedlander concluded the change did not alter the character of the building, and therefore, he would affirm the trial court.

 

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. "associates are becoming more mercenary. The path to partnership has become longer and more difficult so they are chasing short-term gains like high compensation." GOOD FOR THEM! HELL THERE OUGHT TO BE A UNION!

  2. Let's be honest. A glut of lawyers out there, because law schools have overproduced them. Law schools dont care, and big law loves it. So the firms can afford to underpay them. Typical capitalist situation. Wages have grown slowly for entry level lawyers the past 25 years it seems. Just like the rest of our economy. Might as well become a welder. Oh and the big money is mostly reserved for those who can log huge hours and will cut corners to get things handled. More capitalist joy. So the answer coming from the experts is to "capitalize" more competition from nonlawyers, and robots. ie "expert systems." One even hears talk of "offshoring" some legal work. thus undercutting the workers even more. And they wonder why people have been pulling for Bernie and Trump. Hello fools, it's not just the "working class" it's the overly educated suffering too.

  3. And with a whimpering hissy fit the charade came to an end ... http://baltimore.cbslocal.com/2016/07/27/all-charges-dropped-against-all-remaining-officers-in-freddie-gray-case/ WHISTLEBLOWERS are needed more than ever in a time such as this ... when politics trump justice and emotions trump reason. Blue Lives Matter.

  4. "pedigree"? I never knew that in order to become a successful or, for that matter, a talented attorney, one needs to have come from good stock. What should raise eyebrows even more than the starting associates' pay at this firm (and ones like it) is the belief systems they subscribe to re who is and isn't "fit" to practice law with them. Incredible the arrogance that exists throughout the practice of law in this country, especially at firms like this one.

  5. Finally, an official that realizes that reducing the risks involved in the indulgence in illicit drug use is a great way to INCREASE the problem. What's next for these idiot 'proponents' of needle exchange programs? Give drunk drivers booze? Give grossly obese people coupons for free junk food?

ADVERTISEMENT