« Ind. Law - More on Governor's first veto | Main | Law - Rock, Paper, Scissors wins big for those who prepare »
Friday, April 29, 2005
Ind. Law - Fate of subdivision turns on 1935 deed
"Fate of subdivision turns on 1935 deed: Lawsuit filed over New Albany land" is the headline to a story today in the Louisville Courier Journal reported by Ben Zion Herschberg. Some quotes:
The future of a low-cost subdivision started on Linden Street in New Albany hinges on whether language in the 1935 deed for the property remains in force.All this sounded vaguely familiar, so I checked, and sure enough, here is a July 14, 2004 ILB entry on the issue, titled "Question in New Albany about a 1935 deed."At issue is whether the land must remain a public park -- as stipulated in the deed transferring the tract to the city -- or whether a state law has superseded that requirement.
A decision in the case could establish an important statewide legal precedent, lawyers said, and could determine whether the Linden Meadows subdivision is completed. * * *
The arguments have been going on for more than a year -- since the New Albany Plan Commission approved plans for the $65 million expansion of Floyd Memorial Hospital. The approval was contingent, in part, on saving most of the houses that would have to be demolished or moved to make way for the hospital's new wing.
Initially, city officials wanted to move some of the houses to the Valley View Court neighborhood just a few blocks west of the hospital. But that idea was defeated by strong neighborhood opposition and a vote of the New Albany Housing Authority Board, which owns the Valley View site.
The city and community housing organization officials agreed to use McLean Field, on Linden Street, to initially store the houses moved because of the Floyd Memorial expansion. Housing organization officials then asked city planning agencies to approve a 23-lot subdivision on the site, and 19 houses have been relocated there. * * *
A group of residents filed suit to stop the subdivision, saying language in the 1935 deed transferring the land to New Albany requires it to be used as a public park and golf course. The deed says the land, if it's ever used for something other than a public park, reverts to Fawcett heirs.
In yesterday's hearing on the lawsuit, Mull argued that a 1993 law clearly says language requiring land to revert to a seller or a seller's heirs if deed requirements are violated lapses after 30 years.
While there has been no case testing that statute, Mull said, decisions in other states and on similar issues in Indiana make it clear that a public interest can outweigh a property owner's right to impose such long-term requirements in a deed.
David Lewis, the lawyer for residents opposed to Linden Meadows, said the 1993 law is unconstitutional because it overturns the 1935 deed, which was a contract between Fawcett and New Albany.
The U.S. and Indiana constitutions say contracts can't be overturned retroactively by laws enacted after the contracts went into effect, Lewis argued.
Posted by Marcia Oddi on April 29, 2005 09:05 AM
Posted to Indiana Law