« Ind. Law - "Attorney wounded by gun-wielding intruder" | Main | Ind. Law - "“It was a legislated termination of the lawsuit” »

Wednesday, March 28, 2012

Ind. Decisions - "Court sides with New Albany historic group: Bradford Realty should have sought approval for siding"

The March 22nd COA opinion in New Albany Historic Preservation Commission and City of New Albany v. Bradford Realty, Inc. (ILB entry here) is the subject of a long story today by Daniel Suddeath of the New Albany News & Tribune. Some quotes:

NEW ALBANY — The Indiana Court of Appeals reversed a ruling that had backed Bradford Realty’s claims that the New Albany Historic Preservation Commission didn’t properly notify land owners of zoning restrictions.

Last year, Special Judge Daniel Moore ruled in favor of Bradford Realty owner Ron Craig, who was denied a Certificate of Appropriateness request by the HPC after he installed vinyl siding on the building without approval in 2008.

Bradford Realty sits in the Downtown Historic District at its 222 E. Fourth St. location. The business has occupied the spot since 1966. The HPC is charged with overseeing building upgrades and the materials used for repairs as a result of the declaration of the district in 2002.

Craig didn’t notify the HPC of the repairs before work commenced, and his use of vinyl siding on the 1910 structure was later rejected by the board. He was ordered to remove the siding from the building, and a court case ensued.

Though a notice of the district was published in The Tribune in 2002, Moore ruled in July that the city and HPC failed to properly notify land owners in the boundary of the change in zoning.

Moore also ruled Craig was not required to seek approval from the HPC before installing the siding.

The HPC did not send information regarding the district and laws pertaining to property in the zone directly to land owners after the boundary was declared.

But in a 2-1 decision released Thursday, the court of appeals ruled Bradford Realty wasn’t entitled to direct notice of the historic district, and that Craig was required to obtain a Certificate of Appropriateness before replacing original wood siding with vinyl siding.

In her supporting opinion, Judge Patricia Riley wrote the enacting of the historic district was prospective and general in nature and did not fall under due process requirements of the 14th Amendment.

“The ordinance purports to regulate only future conduct to be consistent with the provisions of the historic preservation ordinance,” Riley wrote in regards to the city legislation establishing the historic district.

“It does not impose fines for past behavior or require past improvements to be modified in any way. It is generally and equally applicable to all property owners within its boundaries.”

More from the story:
[Judge] Friedlander disagreed with the majority ruling that the siding installation met the city ordinance definition of a “conspicuous change,” which requires a Certificate of Appropriateness.

Judging by before and after photographs of the building, Friedlander said the change in siding wasn’t striking.

“These photos reflect that the exterior walls of the structure had what appears to be weathered and somewhat faded white clapboard siding before the work was performed,” he wrote in his opinion.

“After the work was completed, it still appeared to have exterior walls made of white clapboard siding.”

The issue of financial hardships caused by upgrading historic structures with original features instead of newer and cheaper materials was also addressed in the ruling.

The appeals court ruled that Craig was not entitled to a summary judgment based on his claim of inverse condemnation. Craig’s counsel had argued the city’s building restrictions inside historic districts imposed a financial hardship on land owners, and thus it was a form of the public taking private property by limiting the use of the lot through vigorous regulation.

For more, including particularly relevant background, see this Sept. 4, 2011 ILB entry, and its accompanying links.

Posted by Marcia Oddi on March 28, 2012 09:18 AM
Posted to Ind. App.Ct. Decisions