High Court to decide whether town can move easement without owner’s consent

November 28, 2017

A local plan commission’s decision to move an easement without the owner’s consent will come under consideration by the Indiana Supreme Court during oral arguments this week.

The high court will hear the case of Town of Ellettsville v. Joseph V. DeSpirito, 53S01-1709-PL-00612, at 9 a.m. on Thursday, the only case scheduled to come before the high court this week. In that case, the Town of Ellettsville Plan Commission granted a petition to relocate an easement owned by Joseph DeSpirito and to adjust the subdivision plat accordingly, despite the fact that DeSpirito did not give his consent.

After DeSpirito filed for judicial review and relief, the Monroe Circuit Court granted his motion for summary judgment, finding the commission could not change the location of his property without his consent. But the Indiana Court of Appeals reversed that decision and allowed the commission to move forward with its plan to relocate the easement in a May opinion.

Specifically, the appellate court found the applicable local law required consent from all parties only as it pertained to “the submission of a preliminary subdivision plat, not to the amendment of an existing plat,” as was the case here. Further, under the Restatement (Third) of Property (Servitudes) Section 4.8 (2000), the court found DeSpirito’s stated concerns were speculative considering a hearing had not yet been held on the planned changes to the lot in question.

DeSpirito petitioned for transfer, which the Indiana Supreme Court has granted.


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