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Questions exist as to whether Clarksville home violates neighborhood covenants

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Summary judgment was prematurely granted to a Clarksville homeowner sued by his neighbors for allegedly violating the neighborhood’s restrictive covenants, the Indiana Court of Appeals ruled Tuesday.

Anthony Henson purchased a vacant lot in the Altra Subdivision neighborhood in November 2012 where a home had burnt down. The lot was next to Wanda and Ray Roberts, who have lived in the neighborhood since 1961. Henson filed a residential building application that indicated he was building a two-story pole barn with a four-car garage. The covenants of the neighborhood require single-family homes not exceeding one and one-half story in height and a garage for not more than two cars. The covenants also ban a barn used a residence on the property.  

The town of Clarksville granted the permit, but noted he should research the neighborhood covenants. The Robertses filed a petition to enforce the covenants and for Henson to cease construction, but the judge didn’t grant the restraining order. Henson completed construction while the litigation was pending. Other neighbors joined the litigation. Henson later filed for summary judgment, which the court granted.

The Court of Appeals reversed because there are questions of material fact on two issues. Henson maintained the restriction to “one and one-half story in height” is ambiguous and that he and his expert both described the residence as such. Henson pointed to case law from other jurisdictions finding descriptions of that structure height to be ambiguous,

The judges agreed that the description of “one and one-half story in height” is ambiguous with respect to whether a particular structure exceeds that height. However, the COA also agreed with the courts that do not automatically negate a covenant simply because it is deemed ambiguous. This issue requires more evidence, so summary judgment was granted prematurely, Judge Michael Barnes wrote.

The “two-car garage” issue also requires more evidence, so the judges reversed summary judgment for Henson. He had introduced evidence that other homeowners have erected detached garages and/or converted existing garages.

“A fact-finder must carefully consider evidence and argument as to the location of Henson’s structure compared to the Appellants’ lots and other alleged nonconforming uses, the similarity of the other alleged nonconforming uses, and their frequency. It does not strike this that this is a mathematical test that can be decided on summary judgment,” Barnes wrote.

The COA did agree that although Henson’s permit says “barn” and “pole barn,” under the language of the covenant, his house is allowed because it is not being used as a barn but as the main residence.

The case, Wanda Roberts, et al. v. Anthony W. Henson,10A01-1607-PL-1647, was remanded for further proceedings.
 

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  1. Don't we have bigger issues to concern ourselves with?

  2. Anyone who takes the time to study disciplinary and bar admission cases in Indiana ... much of which is, as a matter of course and by intent, off the record, would have a very difficult time drawing lines that did not take into account things which are not supposed to matter, such as affiliations, associations, associates and the like. Justice Hoosier style is a far departure than what issues in most other parts of North America. (More like Central America, in fact.) See, e.g., http://www.theindianalawyer.com/indiana-attorney-illegally-practicing-in-florida-suspended-for-18-months/PARAMS/article/42200 When while the Indiana court system end the cruel practice of killing prophets of due process and those advocating for blind justice?

  3. Wouldn't this call for an investigation of Government corruption? Chief Justice Loretta Rush, wrote that the case warranted the high court’s review because the method the Indiana Court of Appeals used to reach its decision was “a significant departure from the law.” Specifically, David wrote that the appellate panel ruled after reweighing of the evidence, which is NOT permissible at the appellate level. **But yet, they look the other way while an innocent child was taken by a loving mother who did nothing wrong"

  4. Different rules for different folks....

  5. I would strongly suggest anyone seeking mediation check the experience of the mediator. There are retired judges who decide to become mediators. Their training and experience is in making rulings which is not the point of mediation.

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