By KEVIN NEVERS

If developer Randy Hall wants to build 48 multi-family units in Phase IV of the Rose Hill Estates planned unit development — otherwise known as Lot 73 — he’s going to have to start from scratch before the Chesterton Advisory Plan Commission, submit a new primary plat, and answer residents’ objections to his plans at a public hearing.

That’s the likely effect of a ruling issued on Friday by Porter Circuit Court Judge Mary Harper, who vacated the secondary plat of Phase IV.

Rose Hill residents had petitioned the court for vacation of the secondary plat largely on three grounds: that the primary plat, approved by the Plan Commission in August 2002, shows only a blank spot in Lot 73 and does not specifically reference the 48 multi-family units; that Hall had given them reason to believe that Lot 73 would remain an undeveloped nature preserve; and that the Plan Commission did not hold a public hearing prior to the approval of the secondary plat.

Rose Hill is located on the north side of 1100N east of Bethlehem Lutheran Church.

The Rose Hill PUD ordinance makes it clear that when Hall was ready to build townhouses on Lot 73 he would need to appear before the Plan Commission to secure secondary plat approval for their number and location.

The Plan Commission approved Hall’s secondary plat for Lot 73 in March 2006 over the objections of Rose Hill residents, who protested the fact that the secondary plat differed from the primary plat in that the latter showed only the blank spot.

Those residents also protested the fact that they were not allowed to formally voice their objections in the context of a public hearing.

In her ruling on Friday Harper stated the following:

•That the approved primary plat for Lot 73 “gives no indication that (it) would become the site for multi-family dwellings.”

•That the approved secondary plat for Lot 73 is therefore “a substantial deviation from the original approved plat.”

•That “Representations were made to the purchasers in Rose Hill that Lot 73 would be maintained as a nature preserve, consistent with the blank spot shown on the primary plat.”

•That as soon as the proposed secondary plat was made public, in February 2006, residents began submitting letters of protest to the Plan Commission.

•That, “because interested parties began protesting the change to Lot 73 as soon as it was made public, a public hearing should have been held.”

•That the Plan Commission subsequently “misstated Indiana law” when it claimed that “no public hearing is required or permitted on secondary plat approval.”

•That state statute merely says that “no notice or hearing is required” prior to secondary plat approval, so that the Plan Commission, if it had wished to do so, could have called a public hearing.

•That the Plan Commission accordingly “abused its discretion” by refusing to call a public hearing, and that its refusal “would allow the developer to devalue the petitioners’ property values.”

Attorneys Respond

Associate Town Attorney Chuck Parkinson told the Chesterton Tribune today that, in his view, a few facts may have gotten lost in the ruling.

For one thing, he said, the PUD ordinance clearly provides for a maximum of 48 multi-family units on Lot 73.

On the Plan Commission’s endorsement, the Town Council approved that PUD ordinance in August 2002 and no one appealed it. Then, later in the same month, the Plan Commission approved the primary plat and no one appealed it either.

Parkinson further said that a primary plat is not actually required to delineate the footprint of a building unless that building is coextensive with the lot line.

And Parkinson said that when, at a hearing on the petition, he asked one of the plaintiffs whether he had ever reviewed the PUD ordinance or the primary plat prior to making a purchase in Rose Hill, the plaintiff said that he had not.

The plaintiffs’ attorney, however, Terry Hiestand, dismissed Parkinson’s caveat emptor response. “The average person wouldn’t know how to find the PUD ordinance,” he told the Tribune.

On one issue Parkinson and Hiestand did largely agree. If Hall wants to pursue his plan to build 48 multi-residential units on Lot 73, he will have to submit a revised primary plat and the Plan Commission would have to call a public hearing on that revised primary plat, Hiestand said, “which would mean my clients would have the opportunity to register their objections.”

“I’m sure they would go to court if the town approved the revised primary plat,” Hiestand added, “but I can’t say what the Plan Commission might do.”

Parkinson did say “that the option of appeal is open, in part because of what this means for the process of platting. I’m not sure this comports with the statutory process.”

Posted 11/12/2007