Friday, September 07, 2007
Ind. Decisions - "Court of Appeals sides with county in Jackson Township, Porter County case"
The COA's NFP decision August 31st in the case of John and Dorothy Arndt & Arndt, LLC v. Porter County Plan Commission (NFP) (see ILB entry here) is the subject of a story in Thursday's Chesterton Tribune:
The Indiana Court of Appeals has upheld a 2005 decision by the Porter County Plan Commission against a proposed 12-lot subdivision in Jackson Township.
In a ruling last week, the court rejected the appeal brought by John and Dorothy Arndt of Romeo, Mich., who proposed the Rilan Acres subdivision on 20 acres at C.R. 988N 400E.
The county plan commission in September of 2005 voted 8-1 against the primary plat, and the Arndts appealed. Porter Superior Court Judge William Alexa upheld the plan commission’s rejection, and the Arndts appealed to the higher court.
In its ruling last week, the appellate court said the plan commission did not err when it concluded that Arndt did not provide enough evidence to demonstrate that the land was unsuitable for development under the county’s open space ordinance.
At the public hearing held on Rilan Acres, the plan commission heard from neighboring residents who spoke about the high water table and flood-prone conditions at the site. Residents also spoke of the pristine quality of nearby Sand Creek, raising concerns that a new development would negatively impact the natural environment.
The court of appeals’ ruling noted that it does not reverse a decision by an administrative agency -- in this case, the plan commission -- unless the evidence as a whole demonstrates that its conclusions were erroneous. In their court fight, the Arndts argued that the plan commission had no discretion to deny the primary plat since it complied with the requirements of the Porter County subdivision control ordinance.
Citing a Marshall County case, the court of appeals stated that a plan commission’s only task is to determine if a proposed primary plat complies with the standards of the subdivision control ordinance, and that a commission cannot deny an application for factors not in the ordinance.
But in the Rilan Acres ruling, the court noted that one of the county ordinances that must be adhered to is the open space ordinance. Its ruling includes a portion of that ordinance that describes lands that are unsuitable for development. The description includes those that are prone to flooding, improper drainage or having other features that may be harmful to the present or future residents of the development. If the unsuitable conditions cannot be remedied, then the lands involved should be set aside and remain as open space, under the ordinance.
The court noted that the plan commission had testimony and evidence regarding the soil, water table, swampy conditions, undisturbed natural features and the fragile environment at Rilan Acres. “We must defer to the Commission’s expertise in finding (that) ‘standard management practices may not be sufficient to protect this fragile environment’ and ‘natural features on this property ... may require a greater set aside under the open space requirements,’” the court ruling states.
The plan commission also raised concerns about the soil’s suitability for septic fields. The Arndts argued that the septic suitability is an issue for the County Health Department. But the court of appeals found that while health department approval is necessary before the plan commission may approve a primary plat, the health department approval is not enough to guarantee plan commission approval.
Posted by Marcia Oddi on September 7, 2007 09:41 AM
Posted to Ind. App.Ct. Decisions