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October 8, 2013

Cobblestone developer files suit

Claim: Commission action on wall exceeded zoning requirements for new phase

TERRE HAUTE — The developer of Cobblestone Crossings has filed a lawsuit against the Vigo County Area Plan Commission.

The company, Southern Indiana Investments Co. Three LLC, claims an action from the Area Plan Commission on Wednesday that would require that a wall be in front of Viscaya subdivision is not a zoning requirement for the last phase of the development of Cobblestone Crossings. The company also says the commission’s action was “arbitrary, capricious, an abuse of discretion and not in accordance with Indiana law,” according to the lawsuit filed Friday in Vigo County Superior Court 1.

The lawsuit contends Southern Indiana Investments complied with the county’s zoning requirements and its subdivision control ordinance.

Thomas Bedsole, attorney for the Indianapolis law firm Frost Brown Todd representing the investment company, said Monday the company installed a wall along Woodgate as part of an agreement with the county.

“The wall was for the prior phase,” Bedsole said. “It described the commitment for that phase but also described the wall as extending all the way down the eastern boundary of the property into the new phase. The plat shows that for phase 4, and does show the wall consistent with the commitment.

“What the neighbors are requesting is a whole new wall along the southern boundary. Technically, the time to put in a wall was when the original PUD (Planned Unit Development)  was approved, which was back in 2007,” he said.

Bedsole said the investment company agreed to a wall along Woodgate; however, that agreement did not extend beyond what has already been walled. “There is no agreement, and we don’t have to agree to it because it is not in the PUD,” he said.

John Hanley, vice president of the Area Plan Commission, said “our feeling as a Plan Commission is we have the authority to attach a commitment to any replatting and that is what we chose to do for the second phase. They have the opportunity to either accept it or sue to determine that we don’t, but we believe we do.”

Hanley said an agreement for the third phase called for a wall built along the north and east perimeters, but also states for a future phase to the south. “Their interpretation is because we didn’t draw the pencil line along Viscaya, but drew along Woodgate South, that is what they meant.

“The intention was to provide a physical barrier and a visual screening buffer for the residential houses that abut the property of this multi-family development,” Hanley said. “It is our feeling that we certainly have the authority to ask that they put that in there, and they are questioning that authority. If the courts rule that we don’t have that [authority], they win.”

Bedsole said the PUD was approved to establish different districts and zoning requirements. Zoning requirements in the last section to be developed was established as R2M, allowing for two-story apartments. “Once it has been agreed upon, it is established. So as you are going further and further down the development process, the discretion becomes less and less, so that at the very last approval, and this is the last approval, if we meet the R2M requirements, they don’t have the discretion to deny it,” Bedsole said.

“The idea being: If that discretion was there, you would constantly be litigating it over and over again every time you came in for an approval,” Bedsole said. “This is the final, final approval. It has been approved by the county commissioners, so to now go in and deny it is an abuse of discretion.”

Hanley disagrees.

“Their argument, in my opinion, if all you have to do is check off the boxes and meet what is in the ordinances, if that’s all that is ever required, then we don’t need to exist as a Plan Commission. Might as well have three people reviewing that the check marks are in the right place and it is what it is,” Hanley said.

“I don’t think you appoint 14 people to sit on a commission if all they are asked to do is review and make sure all the check marks are checked,” Hanley said. “We are simply trying to get this right. It is the final phase of the final build out,” he said.

Hanley said each time a PUD is presented “is a whole new deal, with the ability to change and alter. That is for their luxury to be able to change and alter, which is what they have done. They originally planned on single-family homes and condos there, and now it is multi-family development. So the original agreement does not have anything to do with replatting; that is why they have to come back,” Hanley said.

Stacy Gough, a real estate professional who also is resident of Viscaya Point subdivision, said she thinks the agreement made along Woodgate “states a future phase and we are that future phase, that the wall be extended behind Viscaya Point, and we are hoping the judge sees that.”

Gough said Viscaya Point residents hired Attorney James McDonald to represent them, and he appeared at Wednesday’s Area Plan Commission meeting.

Gough said residents could challenge a ruling that does not include an extension of the wall. “We think [the wall] is on those plans, which is stamped and certified,” Gough said.

Reporter Howard Greninger can be reached at 812-231-4204 or howard.

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