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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. It appears the police and prosecutors are allowed to change the rules halfway through the game to suit themselves. I am surprised that the congress has not yet eliminated the right to a trial in cases involving any type of forensic evidence. That would suit their foolish law and order police state views. I say we eliminate the statute of limitations for crimes committed by members of congress and other government employees. Of course they would never do that. They are all corrupt cowards!!!

  2. Poor Judge Brown probably thought that by slavishly serving the godz of the age her violations of 18th century concepts like due process and the rule of law would be overlooked. Mayhaps she was merely a Judge ahead of her time?

  3. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

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  5. You can put your photos anywhere you like... When someone steals it they know it doesn't belong to them. And, a man getting a divorce is automatically not a nice guy...? That's ridiculous. Since when is need of money a conflict of interest? That would mean that no one should have a job unless they are already financially solvent without a job... A photographer is also under no obligation to use a watermark (again, people know when a photo doesn't belong to them) or provide contact information. Hey, he didn't make it easy for me to pay him so I'll just take it! Well heck, might as well walk out of the grocery store with a cart full of food because the lines are too long and you don't find that convenient. "Only in Indiana." Oh, now you're passing judgement on an entire state... What state do you live in? I need to characterize everyone in your state as ignorant and opinionated. And the final bit of ignorance; assuming a photo anyone would want is lucky and then how much does your camera have to cost to make it a good photo, in your obviously relevant opinion?

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