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9/15/2017 12:50:00 PM
Darmstadt residents express support regarding town's judicial review

Sarah Loesch, Evansville Courier & Press

The gymnasium of the Salem Church of Darmstadt was filled with community members Wednesday evening hoping to hear an update about the town's pending litigation.

Many of the questions were directed toward Mark Crandley of Barnes & Thornburg LLP, who is representing the town of Darmstadt in its Sept. 25 court hearing. The hearing is a judicial review prompted by the town after the Board of Zoning Appeals approved an improvement permit which would allow an apartment complex to be built on the northwest corner of US 41 and Hillsdale Road.

The federal case against the town and its town council was not discussed as Crandley is not the representation for that case. The federal lawsuit was filed by CWK Investments stating that the Town of Darmstadt violated the federal and state Fair Housing Act by by imposing requirements on multi-family housing developments that are not imposed on single-family developments.

The Courier & Press reported in August the land was already zoned for apartments. However, when local developer Wayne Kinney's company filed for an improvement location permit in September 2015, Darmstadt refused to approve the request, citing local ordinances that effectively prohibit apartment complexes, according to the lawsuit.

The apartment complex has received pushback from the community from its conceptualization, and the first question of the evening was, "What are the odds of stopping this development?"

Crandley said the question is one that should be high on everyone's mind, but one he could not answer directly because the litigation is pending.

"When you represent a city or town you're not just representing any ordinary client," he said. "I think as an attorney you have a special obligation to make sure you are doing the right thing."

Crandley said when representing a public body they want to use public funds in the best way.

"We obviously would not be pursing the judicial review if we didn't think it had very strong merit," he said. 

The majority of opposition has come regarding the size of the structure, the increase in population and safety risks. But the ability of the incorporated town to govern itself was also a concern among the group Wednesday.

The town ordinances that were used to originally deny the permit are in question. The ordinances mandate that no residence can be built on less than one acre and require a minimum one-acre lot size for using the town's sewer system.

As previously reported, according to the lawsuit, the Board of Zoning Appeals decision said "...the impact applying the ordinances in the manner argued by the Town, and in fact the admitted intent of the ordinances in the first place, would be to eliminate the possibility of any multi-family housing uses anywhere in the Town."

Crandley said the debate surrounding the ordinances is highly technical, but it comes down to zoning power versus a town's general ability to pass ordinances.

"There is an undecided legal question of whether those ordinances are binding and whether or not they apply," he said. "That's what we want the judge to decide."

Crandley said their opinion is that if a judge does rule those ordinances binding it would stop the development from going forward.

The safety concerns lay mostly with the location of an intersection at Old State Road and Hillsdale Road.

"This is one of our main points of contention we have had since the very beginning," Darmstadt resident Tom Small said.

The concern of a financial strain on the town was also brought up by a community member as the judicial review costs will be about $15,000 dollars. If Darmstadt would win this case an appeal would also be possible, which would result in more legal fees.

"I think it's pretty sad that this developer apparently has deep pockets," Darmstadt resident J.C. Land said during community comment. "He knows the Town of Darmstadt doesn't and he's going to drag us through the mud, to me at this point, just to prove a point."

An escrow account is being set up so that community members can donate money to help pay the town's legal fees. Before the end of the meeting multiple members of the crowd had pledged donations.

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Editor, John C. DePrez Jr.; Executive Editor, Carol Rogers; Publishers: IBRC and IAR


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