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Columbus landowner loses appeal of subdivision denial

August 19, 2015

The city of Columbus Plan Commission did not abdicate its authority to a resident’s neighbors when it denied an application to subdivide a piece of property into three lots of about one acre apiece.

John Counceller owns property in Indian Hills Estates that he sought to subdivide, but the city rejected his application, citing a local ordinance requiring that he obtain consent from 75 percent of the property owners in the subdivision.

Counceller sued, and the Bartholomew Circuit Court ruled in favor of the city, giving rise to the instant appeal. The Indiana Court of Appeals rejected Counceller’s argument that he was unaware of the 75 percent consent requirement.

Judge Cale Bradford wrote for the panel, which also rejected Counceller’s claim, that the requirement was an impermissible “neighborhood veto” which have been held unconstitutional. The panel noted Counceller could have sought a waiver of the requirement but didn’t do so. He cannot avail himself of not being knowledgeable about local ordinances that apply to property he seeks to subdivide, Bradford wrote.

“The appeal identifies its basis as the failure of Counceller to obtain the consent of 75% of property owners in Indian Hills Estates and contains the waiver language,” Bradford wrote. “Despite this notice, Counceller did not request a waiver prior to or during the hearing on the appeal. A more reasonable interpretation of the record is that, for whatever reason, Counceller chose not to request a waiver, which is not the same thing as being denied the opportunity.”

The case is John Counceller v. City of Columbus Plan Commission, 03A05-1503-PL-127.  
 

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