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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. I gave tempparry guardship to a friend of my granddaughter in 2012. I went to prison. I had custody. My daughter went to prison to. We are out. My daughter gave me custody but can get her back. She was not order to give me custody . but now we want granddaughter back from friend. She's 14 now. What rights do we have

  2. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  3. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

  4. Here's an idea...how about we MORE heavily regulate the law schools to reduce the surplus of graduates, driving starting salaries up for those new grads, so that we can all pay our insane amount of student loans off in a reasonable amount of time and then be able to afford to do pro bono & low-fee work? I've got friends in other industries, radiology for example, and their schools accept a very limited number of students so there will never be a glut of new grads and everyone's pay stays high. For example, my radiologist friend's school accepted just six new students per year.

  5. I totally agree with John Smith.

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