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. One can only wonder whether Mr. Kimmel was paid for his work by Mr. Burgh ... or whether that bill fell to the citizens of Indiana, many of whom cannot afford attorneys for important matters. It really doesn't take a judge(s) to know that "pavement" can be considered a deadly weapon. It only takes a brain and some education or thought. I'm glad to see the conviction was upheld although sorry to see that the asphalt could even be considered "an issue".

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  3. Been on social security sense sept 2011 2massive strokes open heart surgery and serious ovarian cancer and a blood clot in my lung all in 14 months. Got a letter in may saying that i didn't qualify and it was in form like i just applied ,called social security she said it don't make sense and you are still geting a check in june and i did ,now i get a check from my part D asking for payment for july because there will be no money for my membership, call my prescription coverage part D and confirmed no check will be there.went to social security they didn't want to answer whats going on just said i should of never been on it .no one knows where this letter came from was California im in virginia and been here sense my strokes and vcu filed for my disability i was in the hospital when they did it .It's like it was a error . My ,mothers social security was being handled in that office in California my sister was dealing with it and it had my social security number because she died last year and this letter came out of the same office and it came at the same time i got the letter for my mother benefits for death and they had the same date of being typed just one was on the mail Saturday and one on Monday. . I think it's a mistake and it should been fixed instead there just getting rid of me .i never got a formal letter saying when i was being tsken off.

  4. Employers should not have racially discriminating mind set. It has huge impact on the society what the big players do or don't do in the industry. Background check is conducted just to verify whether information provided by the prospective employee is correct or not. It doesn't have any direct combination with the rejection of the employees. If there is rejection, there should be something effective and full-proof things on the table that may keep the company or the people associated with it in jeopardy.

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