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Appeals court reinstates grant of petition to relocate easement

May 25, 2017

The Town of Ellettsville Plan Commission can move forward with its plan to grant a petition to move an easement after the Indiana Court of Appeals found Thursday the man who owns the easement did not prove the petition was unreasonable.

In June 1996, Swifty Oil conveyed a lot, known as Lot 2, adjoining the Hukill Subdivision in Monroe County to Marlin Hukill by warranty deed, granting him and his successors the right to use an ingress/egress easement from the lot to another adjoining lot, known as Lot 1. The following August, Swifty granted Hukill a second ingress/egress easement on Lot 1 to be used in the event the original easement “is cut off from access to State Road 46.”

However, in 2011, Joseph DeSpirito obtained Lot 2, and in 2014, Richland Convenience Store Partners LLC obtained Lot 1. The town of Ellettsville then annexed Lot 1, and in June 2015, RSCP filed a petition with the Ellettsville Plan Commission to relocate the utility easement on Lot 1 and amend the subdivision plat accordingly.

The plan commission granted RSCP’s petition, but DeSpirito filed for judicial review and requested declaratory and injunctive relief. The plan commission and RCSP agreed not to take any action until further order of the court, then all three parties moved for summary judgment.

The Monroe Circuit Court ultimately granted summary judgment to DeSpirito and ordered the plan commission to dismiss RCSP’s petition, concluding “… the net effect of the Plan Commission’s action is to change the location of one owner’s property without his consent, at the request of an adjoining owner.” RCSP and the commission appealed in Town of Ellettsville, Indiana Plan Commission and Richland Convenience Store Partners, LLC v. Joseph V. DeSpirito, 53A01-1611-PL-2559. The Indiana Court of Appeals reversed the trial court’s decision in a Thursday opinion.

Specifically, Judge Terry Crone wrote for the unanimous panel Section 153.003 of the Ellettsville Subdivision Regulations, which holds “all parties who have a financial interest in the subdivision and subsequent development must be on record as agreeing with the submission provisions in the application to the Plan Commission,” does not require DeSpirito’s consent to the relocation of the easement. That’s because the wording of Section 153.003 “applies solely to the submission of a preliminary subdivision plat, not to the amendment of an existing plat,” Crone wrote.

Further, Crone called the trial court’s constitutional concerns regarding the “taking” of DeSpirito’s property misplaced, as were the court’s statutory concerns under Indiana Code 36-7-4-714.

Finally, the appellate panel wrote a modern, equitable approach to easement relocation would be to apply the approach in Restatement (Third) of Property (Servitudes) Section 4.8 (2000). Looking at that approach, Crone wrote DeSpirito’s traffic and safety concerns associated with additional development on Lot 1 are speculative, considering a hearing has not yet been held on RCSP’s plans for Lot 1. Further, DeSpirito, who owns a medical practice on his lot, took a “calculated risk” in purchasing a lot without direct access to State Road 46, “as any purchasers of Lot 1 could have sought to increase traffic to the site even without relocating the easement.”

Thus, the commission’s decision was that RCSP’s proposed relocation was reasonable, and DeSpirito failed to prove otherwise, Crone said. The appellate court reversed summary judgment for DeSpirito and remanded with instructions to enter summary judgment for RCSP and the commission and for reinstatement of the original decision to grant RCSP’s petition.
 

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