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Judges disagree on meaning of language in city ordinance

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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.

 

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  1. Im very happy for you, getting ready to go down that dirt road myself, and im praying for the same outcome, because it IS sometimes in the childs best interest to have visitation with grandparents. Thanks for sharing, needed to hear some positive posts for once.

  2. Been there 4 months with 1 paycheck what can i do

  3. our hoa has not communicated any thing that takes place in their "executive meetings" not executive session. They make decisions in these meetings, do not have an agenda, do not notify association memebers and do not keep general meetings minutes. They do not communicate info of any kind to the member, except annual meeting, nobody attends or votes because they think the board is self serving. They keep a deposit fee from club house rental for inspection after someone uses it, there is no inspection I know becausee I rented it, they did not disclose to members that board memebers would be keeping this money, I know it is only 10 dollars but still it is not their money, they hire from within the board for paid positions, no advertising and no request for bids from anyone else, I atteended last annual meeting, went into executive session to elect officers in that session the president brought up the motion to give the secretary a raise of course they all agreed they hired her in, then the minutes stated that a diffeerent board member motioned to give this raise. This board is very clickish and has done things anyway they pleased for over 5 years, what recourse to members have to make changes in the boards conduct

  4. Where may I find an attorney working Pro Bono? Many issues with divorce, my Disability, distribution of IRA's, property, money's and pressured into agreement by my attorney. Leaving me far less than 5% of all after 15 years of marriage. No money to appeal, disabled living on disability income. Attorney's decision brought forward to judge, no evidence ever to finalize divorce. Just 2 weeks ago. Please help.

  5. For the record no one could answer the equal protection / substantive due process challenge I issued in the first post below. The lawless and accountable only to power bureaucrats never did either. All who interface with the Indiana law examiners or JLAP be warned.

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