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. This is ridiculous. Most JDs not practicing law don't know squat to justify calling themselves a lawyer. Maybe they should try visiting the inside of a courtroom before they go around calling themselves lawyers. This kind of promotional BS just increases the volume of people with JDs that are underqualified thereby dragging all the rest of us down likewise.

  2. I think it is safe to say that those Hoosier's with the most confidence in the Indiana judicial system are those Hoosier's who have never had the displeasure of dealing with the Hoosier court system.

  3. I have an open CHINS case I failed a urine screen I have since got clean completed IOP classes now in after care passed home inspection my x sister in law has my children I still don't even have unsupervised when I have been clean for over 4 months my x sister wants to keep the lids for good n has my case working with her I just discovered n have proof that at one of my hearing dcs case worker stated in court to the judge that a screen was dirty which caused me not to have unsupervised this was at the beginning two weeks after my initial screen I thought the weed could have still been in my system was upset because they were suppose to check levels n see if it was going down since this was only a few weeks after initial instead they said dirty I recently requested all of my screens from redwood because I take prescriptions that will show up n I was having my doctor look at levels to verify that matched what I was prescripted because dcs case worker accused me of abuseing when I got my screens I found out that screen I took that dcs case worker stated in court to judge that caused me to not get granted unsupervised was actually negative what can I do about this this is a serious issue saying a parent failed a screen in court to judge when they didn't please advise

  4. I have a degree at law, recent MS in regulatory studies. Licensed in KS, admitted b4 S& 7th circuit, but not to Indiana bar due to political correctness. Blacklisted, nearly unemployable due to hostile state action. Big Idea: Headwinds can overcome, esp for those not within the contours of the bell curve, the Lego Movie happiness set forth above. That said, even without the blacklisting for holding ideas unacceptable to the Glorious State, I think the idea presented above that a law degree open many vistas other than being a galley slave to elitist lawyers is pretty much laughable. (Did the law professors of Indiana pay for this to be published?)

  5. Joe, you might want to do some reading on the fate of Hoosier whistleblowers before you get your expectations raised up.