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Thursday, November 16, 2006
Ind. Decisions - "New Haven has its own zoning battle"
"New Haven has its own zoning battle: The city has spent $7,471 – so far – to fight a Flying J travel plaza" is the headline to a story today by Ryan Lengerich in the Fort Wayne News-Sentinel.
The decision is the Court of Appeals 10/31/06 ruling in Flying J., Inc. v. City of New Haven, Board of Zoning Appeals (see ILB entry here, about 2/3 down the page). An earlier news story is referenced here.
From today's story:
When more than 70 New Haven residents attended a zoning meeting in April 2005, many asked the city to oppose a Utah company’s proposal to build a travel plaza at Minnich Road and Indiana 930.They got what they wanted, but the ensuing legal battle has cost New Haven taxpayers $7,471 in fees to the law firm of Van Gilder & Trzynka, 202 W. Berry St. in Fort Wayne, according to documents on file at the city Clerk Treasurer’s office.
“Our position is firm,” said Brian Yoh, New Haven planning director.
The dispute could reach the Indiana Supreme Court, becoming the first New Haven zoning case to do so in Yoh’s 14 years on the job.
In March 2005, Flying J Inc. proposed building a 17-acre travel plaza on land it owns at Minnich and Indiana 930, just west of Interstate 469. The plaza would include a convenience store, country market, 24-hour restaurant, fast-food court, service station with gasoline and diesel fuel, rest facility with showers and a laundry, and recreational vehicle services including waste-tank disposal and parking for 11 RVs and 187 semitrailers.
But the land is zoned for general commercial use, and Yoh ruled the truck fueling stations, waste tank disposal and 24-hour parking for that many vehicles did not fit the zoning. New Haven’s Board of Zoning Appeals agreed, and Flying J moved the dispute into the courts.
An Allen Circuit Court judge upheld the zoning board’s decision, but the Indiana Court of Appeals reversed the decision, siding with Flying J.
“We feel these courts have upheld what we felt all along, that we have a property right there,” said Flying J spokesman Mike Miller. “We wish the city would get on with it and stop wasting time and taxpayer money.”
New Haven has until month’s end to take the case to the Indiana Supreme Court. Yoh said the city has not yet confirmed it will do so, but zoning board officials have told him they want to exercise all possible means to block Flying J’s plans.
Throughout the process, Yoh urged Flying J to consider instead buying land east of I-469, away from the city, where zoning fits the company’s plans. Miller said that location does not work for the company.
If New Haven officials decide to test the matter in the state’s top court, the legal fees will continue to pile up.
The city’s lawyer, David Van Gilder, who charges $125 per hour for his legal counsel, billed 56 hours on the Flying J case from April 2005 through October.
The money comes from the city’s general fund. City Clerk Treasurer Brenda Adams said the city budgets $20,000 yearly for planning department attorney fees.
Yoh said allowing the plaza to be built would undermine New Haven’s master plan specifying a less intensive business for that property. He believes he has the backing of citizens who have said publicly the business could potentially endanger children at nearby schools by increasing traffic and noise in the area.
Miller, of course, disagrees. “They are taking away property rights, and we feel any citizen should be worried about that.”
Yoh insists the city is cost-conscious and frustrated by the ordeal.
“When you have an issue this significant, with hazards this possible,” Yoh said, “we have to defend the city.”
Posted by Marcia Oddi on November 16, 2006 12:24 PM
Posted to Ind. App.Ct. Decisions