By DANIEL SUDDEATH
daniel.suddeath@newsandtribune.com
NEW ALBANY —
Whether the proposed Summit Springs development will require another New
Albany City Council vote will hinge, at least from a municipal standpoint, on a debate over
vested rights versus a city ordinance.
The New Albany Board of Zoning Appeals continued an appeal Tuesday on behalf of the
property owners of the land where Summit Springs — which is proposed as a commercial and
residential development — would be built.
The land owners — Pam and Pat Kelley — are appealing a decision by New Albany Plan
Commission Director Scott Wood requiring the project receive a second Planned Unit
Development District, or PUDD, approval by the city council.
The council originally approved a PUDD distinction for the land, which is located near the
Interstate 265 interchange off State Street, in May 2008.
The city ordinance states developers have 18 months to submit a secondary plan for review by
the plan commission after receiving initial approval or the PUDD expires.
However the Kelleys’ attorney John Kraft told the board of zoning appeals that due to official
letters sent out in 2010 by city administration indicating the project was still affirmed, the
property owners and the development team, LDG, spent more than $600,000 under the belief
Summit Springs didn’t need a second council approval for a PUDD.
Kraft distributed a letter dated March 29, 2010, to the board that was signed by then New
Albany Redevelopment Director Carl Malysz. It indicated Summit Springs was being included as
a tax-increment financing project and could be eligible for up to $2 million in infrastructure
support.
Additionally, the Kelleys were asked by the city to pay $104,100 for the purchase of property
owned by Burger King so that an extension of Daisy Lane could be constructed to serve the
development.
Kraft said then City Attorney Shane Gibson had authored a letter to Burger King requesting the
property, and had stated that eminent domain may be used to take the land for the public
benefit if a deal couldn’t be reached.
Kraft said LDG wasn’t notified until June 2012 by Wood — who he said had previously
indicated that only a secondary review by the plan commission was needed to proceed — that
the PUDD had expired and the council would have to again take up the matter.
“How do you include something in a TIF district if you don’t have a project?,” Kraft asked.
Kraft referenced an Indiana Supreme Court case where a developer was ruled to have spent a
substantial amount of money on a project under the belief they had zoning approval to proceed
with construction only to later learn the municipal ordinance had been changed and further
consent was needed. Kraft said the court ruling stated that due to the amount of money spent on the project, the developer was deemed to have a vested right to proceed without further approval.
The Summit Springs situation is similar because LDG and the Kelley’s had spent money on land,
engineering and on pursuing low-income tax credits for the residential portion of the
development, which would also likely include a restaurant and hotel space.
Wood said that when he was again approached by Realtor Mike Kopp on behalf of LDG about
moving forward with the project last year, he told him he would first have to consult with the
plan commission.
Kraft said the plan commission verbally indicated it was OK to move ahead with just a secondary
review, but that it was Councilman John Gonder who insisted the project go back through the
entire PUDD process.
Gonder is an adjoining property owner to the proposed development, though he did vote in
favor of the PUDD request in 2008.
Wood added that the city’s ordinance may be weak because it doesn’t take into account the
Indiana Supreme Court ruling, but that he made his judgment based on the New Albany law.
“Our ordinance does not address any vesting rights,” Wood said.
City Attorney Stan Robison agreed with both sides. He said that he feels the 18-month deadline
is applicable in the case, but that Kraft’s statements about the amount of money spent by the
property owners and LDG is also factual.
He said the administration doesn’t have a stance on the issue.
“My position is no position really,” Robison said.
Gonder spoke while public comment was allowed on the docket item. He said that the
developers and property owners failed to meet their obligation to provide a secondary review
plan to the plan commission within 18 months of the original PUDD approval.
“They missed it by about two years,” Gonder said.
LDG pulled the second PUDD request in November before it was set to be introduced to the
council. An official with the firm later said LDG didn’t feel confident in the council’s interest in
the project.
If the appeal is won by the Kelleys, the council won’t have another vote on the matter as the
original PUDD will stand. Kraft inferred that if the appeal is upheld, the developer and land
owners will likely take the issue to court.
Board of zoning appeals members elected to review the information submitted to them by Kraft
and decide on the appeal during a special meeting Jan. 22.
Eastridge variance postponed
A variance request by Jeff Eastridge’s Silver Street Property LLC was postponed due to “sign
posting irregularities.”
Eastridge is again seeking to open a recycling facility at 1706 Ind. 111 after being turned down
previously.
