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Judge rules against Porter in development open space dispute

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The Town of Porter Plan Commission overstepped its jurisdiction when it denied a Hunters Glen subdivision replat in late 2008, Porter Superior Court Judge William Alexa recently ruled.

Alexa said the commission had no business denying the replat sought by C&C Development principals Todd Martin and Royal Church on the basis that subdivision covenants required a Parcel A be set aside as open space.

“Neither a Parcel A nor an open space parcel exist,” according to the judge. “No Defendant-owner in Hunters Glen has a right to force Parcel A to remain as originally platted.”

Alexa reversed the commission’s Dec. 17, 2008 denial and remanded the Martin/Church replat petition back to the Plan Commission for further proceedings consistent with his order.

Porter town attorney Patrick Lyp said, “At this point I have no comment other than the Plan Commission will be discussing this at its (April 21) meeting.”

C&C Development attorney Brian Hurley said, “We appreciate the court’s ruling and believe it was the right ruling under the facts and the law.” As for how his clients will proceed, “Where we go from here is a little bit premature.”

The Plan Commission has the option of appealing Alexa’s decision.

C&C Development’s quest to replat 4.4 acres for eight single-family homes on the west side of Hunter’s Glen played out at seven commission meetings beginning in March, 2008 and ending in December’s 4-2 vote to deny.

At issue was 1.6 acres in the 4.4 acres that the Hunters Glen Property Owners Association contended --- and the Plan Commission agreed --- previously had been set aside for open space when the original 45-lot subdivision was platted in 1991.

But Hurley argued that, for whatever reason, in 1994 that Plan Commission allowed a first replat that vacated the open space and the rights of existing Hunters Glen property owners to use it.

Lyp at one time agreed with Hurley and told the commission at its Nov. 19, 2008 meeting, “It was in fact vacated.”

Nevertheless, the reasons given by the Plan Commission in denying the Martin/Church replat were that the open space was never vacated nor the rights of the residents of Hunters Glen ever extinguished.

Alexa said the amended covenants, the deed of dedication and the replat of Hunters Glen, all recorded March 14, 1994, did change the character of disputed Parcel A.

The HGPOA had remonstrated against C&C Development’s 2008 petition and the developers in turn named the association and its then-85 individual members as co-defendents with the Plan Commission in the January, 2009 lawsuit which subsequently led to Alexa’s decision now.

In it the judge said whether they knew it or not, all of the present owners of lots in Hunters Glen either consented to the 1994 changes in Parcel A or bought their lots after the recorded changes in Parcel A. As such, they don’t retain any right in and to the use of or access to Parcel A.

Alexa noted the HGPOA never placed any landscaping, recreational or entertainment equipment on Parcel A during the time members thought they had a right to use the land.

Member Bruce Snyder represented the HGPOA in its remonstrance against the Martin/Church petition. Tuesday, Snyder declined comment on Alexa’s ruling other than to say, “We gave it our best shot and the POA will trust the Town to do the right thing at this point.”

During the 2008 meetings Hurley told the Plan Commission it’s illegal to deny a subdivision based on its convenants, which the town does not enforce. Alexa agreed.

Nothing in the town’s subdivision control ordinance or state law allows for such regulation or enforcement of convenants, which are a private agreement between private individuals, said the judge.

The Plan Commission’s contention that it could reject the C&C Development replat based on the aforementioned restrictive convenants was inappropriate, Alexa concluded.


Posted 4/15/2010




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