New Albany Historic Preservation Commission v. Bradford Realty, Inc.
2012 Ind. App. LEXIS 121
| Ind. Ct. App. | 2012Background
- Bradford Realty owns property within the City of New Albany's historic district designated in 2002, the district having NRHP status since 1999.
- New Albany adopted a historic preservation ordinance in 1999 creating the Historic Preservation Commission (HPC) and COA procedures for exterior modifications within the district.
- Bradford replaced original wood clapboard siding with vinyl siding in 2008 without a COA, despite HPC advising Bradford it needed one; Bradford continued work after an initial COA inquiry.
- Bradford challenged the district designation as a due process violation for lack of actual notice; the trial court granted Bradford summary judgment on some claims, which the NAHPC appealed.
- The trial court found Bradford not to need a COA for vinyl siding and deemed the ordinance not a taking; the court granted Bradford summary judgment on those issues, leading to partial reversal on appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the designation was legislative or adjudicative for due process | Bradford argued designation was adjudicative requiring actual notice. | NAHPC argued designation was legislative, not subject to Mullane notice. | Designation was legislative; no required due process notice. |
| Whether Bradford needed a COA to replace vinyl siding | Bradford claimed no COA was required since the change was not conspicuous. | NAHPC argued vinyl siding constitutes a conspicuous exterior change needing a COA. | Bradford needed a COA; trial court erred in granting summary judgment. |
| Whether Bradford has a claim for inverse condemnation | Bradford claimed the designation deprived it of economic use of property. | NAHPC argued regulation preserves public welfare and does not constitute a taking. | Bradford's inverse condemnation claim failed; no taking found. |
Key Cases Cited
- Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (Supreme Court (1950)) (due process requires notice for adjudicative actions)
- LC & S, Inc. v. Warren Co. Area Pln. Comm., 244 F.3d 601 (7th Cir. 2000) (legislation vs adjudication depends on generality and prospectivity)
- Krimendahl v. Common Council of City of Noblesville, 267 N.E.2d 547 (Ind. 1971) (ordinance enactment by city legislative body exempt from due process hearing)
- City of Hobart Common Council v. Behavioral Inst. of Indiana, LLC, N.E.2d 238 (Ind.Ct.App. 2003) (legislative acts are not subject to due process requirements)
- Penn Central Transportation Co. v. City of New York, 438 U.S. 104 (Supreme Court (1978)) (regulatory takings analysis factors)
- New Orleans v. Dukes, 427 U.S. 297 (Supreme Court (1976)) (historic preservation can serve public welfare purposes)
- Berman v. Parker, 347 U.S. 619 (Supreme Court (1954)) (land-use controls to preserve urban character)
- Tourkow v. City of Fort Wayne, 563 N.E.2d 151 (Ind.Ct.App. 1990) (vinyl siding can constitute a conspicuous change)