Appeals Court rules in Lynn's favor

Clark County

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June 7, 2007

Appeals Court rules in Lynn's favor

Developer sued Clarksville after 2004 planning, zoning rulings

By LARRY THOMAS The News and Tribune Thu Jun 07, 2007, 11:11 AM EDT

The Indiana Court of Appeals has struck down provisions in Clarksville zoning and subdivision control ordinances that give the town’s Plan Commission the right to grant variances and has overturned a 2004 Board of Zoning Appeals ruling against Robert Lynn Co. for the second phase of its Meyer Manor.

The three-judge panel that reviewed the case published its 25-page decision on the state’s Web site on Wednesday.

On Sept. 7, 2004, the Board of Zoning appeals granted Robert Lynn Co.’s application for development standards variances for both sections of Meyer Manor, conditional upon the Plan Commission’s approval of the developer’s amended subdivision plat.

Bob Lynn, the company’s president, had agreed not to build duplexes where they were permitted by right in exchange for smaller lots in other portions of Meyer Manor.

Meyer Manor is located off Charlestown Road near Ind. 60.

On Nov. 1, 2004, the zoning panel rescinded its variance approval, but Lynn did not receive notice of the hearing until he attended a separate Plan Commission meeting two days later. At the Nov. 3 meeting, the Plan Commission rejected Lynn’s petition for a development standards variance and his application for an amended plat.

Lynn sued the Plan Commission and Board of Zoning Appeals on Nov. 29, 2004, in Clark Superior Court 1. On Jan. 5, 2006, former Clark Superior Court 1 Judge Jerome F. Jacobi ruled in Lynn’s favor. The following month, after the town filed a motion to correct errors, Jacobi reversed his previous ruling.

Court of Appeals Judge Terry A. Crone, writing for Judges Patrick D. Sullivan and Michael P. Barnes, found that state law does not grant plan commissions the power to grant variances and that Jacobi’s original ruling in Lynn’s favor was correct.

“We think that the trial court had it right the first time around,” Crone wrote.

Despite its ruling that Indiana law does not grant plan commission’s the authority to review variances, the Court of Appeals ordered the Clarksville Plan Commission to conduct another hearing regarding the variances granted conditional approval by the Board of Zoning Appeals.

“We, as a developer, are very pleased that the Court of Appeals has realized that Judge Jacobi’s overruling of his previous ruling was in error,” Lynn said Wednesday. “We respect the court’s decision that we need to go to the Plan Commission.”

Attorneys from the Indianapolis law firm Ice Miller, which handled the town’s case in the appeal, did not return a reporter’s phone calls on Wednesday, nor did Town Attorney Sam Gwin.

Meyer Manor is nearly 31 acres and is comprised of land zoned for single family residential and single and two-family residential. In exchange for not building duplexes on land where it would have been allowed, Lynn asked for approval for lots with 50-foot widths and 6,000 square feet in other areas of the development. Based on the town’s subdivision control ordinance, those lots should have been 60 feet wide and a minimum of 7,200 square feet.

Under such an agreement, Lynn said, Meyer Manor would have 147 single-family homes, rather than 154 units split between duplexes and single-family houses. Lynn said the homes range from 1,200 to 1,600 square feet, and sell for $120,000 to $160,000. Twenty-seven homes, all of them in the development’s first phase, have been constructed.

Lynn said he would appear before the Plan Commission as soon as possible, perhaps as early as July.