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HomeMy WebLinkAbout1990-OR-48BY THE CITY COUNCIL FOR THE CITY OF JEFFERSONVILLE, INDIANA ORDINANCE NO. AN ORDINANCE VACATING A PORTION OF NOLE DRIVE WHEREAS, the City Council has received and reviewed a petition to vacate a portion of Nole Drive; and WHEREAS, the City Council has determined that the best interests of the City would be served by granting and vacating the said portion of Nole Drive; and such petition WHERSAS, the C'ity Council has determined that all legal prerequisites to the vacation of such public way have been met; NOW, THEREFORE, BE IT ORDAINED by the City Council for the City of Jeffersonville, Indiana, as follows: The following portion of Nole Drive shall be, and is hereby, vacated and closed to the general public: Being part of Survey Number 21 of the Illinois Grant, Jeffersonville, Clark County, Indiana, more particularly described as follows: Beginning at the most southerly corner of said Illinois Grant Nol 21, thence traveling along the line dividing Illinois Grant No. 11 and said Illinois Grant No. 21, N. 55° 03' 41" E, 151.79' to a point, said point also being the most easterly corner of Lot 101 of said Buttonwood Unit Number 1, Plat Book 9, Page 37, the True Point of Beginning; thence traveling along said Lot 101, N 14° 34' 03" W, 148.00' to a point, the point of curvature of a curve to the right; thence along the chord of said curve to the right, said curve having a radius of 243.58', a delta angle of 07° 26' 55", an arc length of 31.67', said chord of said curve to the right having a bearing of N 10° 50' 15" E, and a distance of 31.64' to a point being the point of tangency of said curve to the right, said point also being the point of curvature of a curve to the left; thence with the long chord of said curve to the left having a radius of 25.00', a delta angle of 70° 48' 59", an arc length of 30.90', said long chord having a bearing of N 42° 31' 06" W, 28.97' to a point, said point being the point of tangency of said curve to the left and the point of curvature of a concave curve to the left; thence with the chord of said concave curve to the left, said curve having a radius of 250.58', a delta angle ef 17° 58' 17", an arc length of ~8.60', said curve having a bearing of S 86° 55' 07" E, and a distance of 78.28' to the point of tangency of said concave curve to the left, said point also being the point of curvature of a curve to the left, said point being located in the line with Lot 110, thence with the long chord of a curve to theileft and with said Lot 110, said curve having a radius of 183.59', a delta angle of 10° 29' 41", an arc length of 33.63', said long chord having a bearing of S 09° 19' 13" E, 33.58' to a point said point being the point of tangency of said curve to the left; thence S 14° 34~ 03" E, 125.72' to a point in the previously said line dividing said Survey Numbers 11 and 217 thence leaving Lot 110 and with said dividing line S 55~ 03' 41" W, 64.00' to a point, the true point of beginning, containing 10711 square feet or 0.2459 acres more or less. This ordinance shall become effective at such time when petitioners shall construclt at their expense a gate which may opened b~ remote control by emergency personnel, including, not limited to police officers, firefighters, and drivers. Dated this day of October, 1990. the be but ambulance nt,/Jef~rso~ville City Approved by the Mayor on this day of October, 1990. ~n~;aC~ o f~ f e r~o~v ' e, MICHAEL T. FORSEE Attorney at Law October 26, 1990 Mr. C. Gregory Filer City Attorney City-County Building Jeffersonville, Indiana 47130 Re: Dear Greg: Please find enclosed a copy of the original Remonstrance that I would have introduced into evidence at a hearing in this cause. The afternoon prior to the hearing, I brought you a draft and subsequent to that i changed the original by deleting paragraph 9. The purpose of thls deletion was because I never was able to get in touch with Donna Glass prior to the meeting and I did not want to use her name without her permission. I still have the original and twelve (12) copies of this document in my file and obviously, it was not necessary to introduce anything into evidence inasmuch as the petition to vacate the public way was withdrawn. At any event, please place a copy of this original in your file in case it is needed for future reference. I am thanking you in advance for your cooperation. Very truly yours, Michael T. Forsee MTF/w Enclosure P.S. The enclosed Remonstrance is~ in facts the original. 408 East Court Avenue, Jeffersonville, Indiana 47 t 30 (812) 283-5102 ORIGINAL BEFORE THE CITY COUNCIL FOR THE CITY OF JEFFERSONVILLE JEFFERSONVILLE, FORMAL REMONSTRANCE ON PETITION TO VACATE A PUBLIC WAY INDIANA Comes now your Respondents Michael T. Forsee and Judith H. Forsee, and by way of remonstrance to a petition to vacate a public way heretofore filed on the 2nd day of October, 1990, by Randall E. Westerfield, Susan G. Westerfield, William E. Prentice and Doris M. Prentice, state as follows: STANDING The Respondents herein are residents of Northaven Sub- division living at 1515 Nole Drive. The Respondents herein have been residents of 1515 Nole Drive since May of 1~76. Inasmuch as the petition to vacate a public way alleges that Nole Drive bears more traffic than it was designed to bear; the traffic on Nole Drive travels at a rate of speed that is unsafe to the people, including children, of the surrounding neighborhood and that Nole Drive was not designed to serve as a major thoroughfare, and due to the fact that the Respondents herein have three (3) minor children, the Respondents have standing to file this remonstrance. ALLEGATIONS SUPPORTING RESPONDENTS~ POSITION 1. That the road to be vacated is, in fact, a public way or public place, located within the corporate boundaries of the City of Jeffersonville, County of Clark, State of Indiana. 2. That this objection is made pursuant to I.C. 36-7-3- 12 (d) and I.C. 36-7-3-13. Copies of these statutes are attached hereto, made a part hereof and marked as Exhibits A and B respectively. 3. That the vacation of a portion of No!e Drive would hinder the growth of orderly development of the unit or neighborhood in which it is located or to which it is contiguous. Specifically, Respondents would show that this portion of Nole Drive at its entrance to Buttonwood connects -2- Charlestown-Jeffersonville Pike with Northaven Subdivision. The Council's attention is brought to the fact that in the recent p~b:~ there has been substantial development of this area with several new subdivisions being built off of Charlestown-Jeff Pike. Furthermore, the Council's attention is brought to the fact that in this day of escalating fuel prices, the opening of this road has made areas such as Highway 31 in C!arksville, Indiana, much more accessible to residents of Jeffersonville, Indiana, and further has made a substantial difference in the amount of driving time that it takes to get to this area of our county. For this reason, the Respondents would also allege pursuant to I.C. 36-7-3-13 that the vacation would make access to the lands of the aggrieved person by means of public way difficult or inconvenient, and the vacation would hinder the public's access to a church, school or other public building or place. Specifically, many of the children who llve in Northaven Subdivision attend River Valley Middle School and the opening of this public way certainly has made it much more convenient to travel to said Middle School. 4. Respondents would further show the Council that the vacation would hinder the use of a public way by the neighborhood in which it is located or to which it is contiguous. 5. This area was recently annexed by the City of Jeffersonville and was platted by Mr. Prentice with that in mind. 6. Respondents are also concerned about fire safety in our area. Respondents believe that the offer to construct an electronically controlled gate which allows access through the vacated portion of the roadway to fire fighters, police officers, ambulance personnel and other emergency personnel is not only tenuous at best but is also an admission by the Petitioners that to close this street would pose a public health hazard. Obviously the closest first responder to this -3- area is the new fire station located on Hamburg Pike and certainly the City of Jeffersonville did not spend hundreds of thousands of dollars in constructing a new fire station without considering the safety of the residents of the northern end of Nor~haven Subdlvision. This is especially true due to the fact that a railroad track divides the northern end of the subdivision from the southern end of the subdivision. 7. Respondents would further sho~ that being residents of Nole Drive that they certainly have not noticed any increase in traffic. It is our understanding that in fact a traffic check has been done and that approximately six hundred (600) vehicles per day traverse the portion of the road contained in the Petitioner's petition. This is an extremely light traffic flow and we would submit that there are literally hundreds of roads located in Jeffersonville, Indiana, in residential areas that carry substantially more traffic flow than 600 vehicles per day. As to the allegation that traffic on Nole Drive travels at a rate of speed that is unsafe to the people, including children of the surrounding neighborhood~ the Respondent would show that the speed limit in this area is 25 miles per hour and recently there have been numerous stop signs erected to control traffic. Respondents would show that in some areas the speed limit has been reduced to 15 miles per hour. We assume that the reason for erecting speed limit signs and stop signs is to control the flow of traffic and the Petitioners herein have no control over people who abuse the speed limit. This is true no matter where a person lives in Jeffersonville, Indiana, and certainly there are punitive measures to be used against persons who violate speed limits and, in fact, this has been done on a regular basis in this area. 8. Furthermore, there are relatively few homes located in the Buttonwood area. Certainly many of these people were. aware of the fact that this road would be open when they -4- built their homes. What they are now asking is granted a vacation of a street in order to have private cul-de-sac free from any through traffic. Respondents submit that this is the actual reason requesting a vacation of this street. that they be their own for 10. The Petitioners contend that it would be in the best interest of the city for the above-described public way to be vacated. Obviously, this is not true and, in fact, should the city vacate this property and should an emergency arise and should, because of the vacation of the street, the inoperable condition of the purported electronic gate and/or the inaccessibility of the proper electronic devices to open and/or close said gate by the proper emergency vehicles, the city would be open to a lawsuit for damages. CONCLUSION For the reasons herein-above stated, the Petition to Vacate must fall inasmuch as the Petitioners have not met any of the requirements contained in I.C. 36-7-3-13. The law is clear that the grounds for remonstrance may be made on only one (1) of the four (4) requirements contained in said statute and Respondents honestly feel that the petition fails on all four (4) grounds. WHEREFORE, the Respondents herein pray that the Petition to Vacate a Public Way heretofore filed by the Petitioners be denied and for all other relief that may be proper in the pr em is es. Michael T. Forsee Ju/ith H. Porsee the hear- se remon- )bjections ,cts 1981, :ions §~ 19, statute gov- :ate certain a plat was in question n from map Contractor, N.E.2d 671, , on petition unimproved : same pro- in such ap- lty commis- .is v. Ritain- Ind. App. 65. ~division did and running ised therein ecific terms Bob Layne el, 1973, 301 does not al- incorporated i. Id. id on which been estab- entire tract, tions in any PLATTING & VACATION way he sees fit, but he must proceed in manner provided by statute pertaining to vacation of plats. Wischmeyer v. Finch, 1952, 107 N.E.2d 661. 6. Remonstrance Acts 1907, c. 279 [repealed], provided that, if no objection to street vacation proceedings was made in writing by any interested party within the time fixed, the court shall grant the petition, OF PROPERTY 36-7-3-12 and since the proceeding was a special statutory proceeding in which the right to remonstrate within a specified time was given, the court could reject a re- monstrance filed after the statutory pe- riod, and, if the court permitted the re- monstrance to be filed, it could after- wards, contrary to the rule applicable to civil actions generally, reject it. City of Peru v. Cox, 1909, 90 N.E, 7, 173 Ind. 241. 36-7-3-12 Vacation of public way or place; petition; notice; hearing; adoption of ordinance; appeals Sec. 12. (a) Persons who: (1) own or are interested in any lots or parts of lots; and (2) want to vacate all or part of a public way or public place in or contiguous to those lots or parts of lots; may file a petition for vacation with the legislative body of: (A) a municipality, if all or any part of the public way or public place to be vacated is located within the corporate boundaries of that municipality; or (B) the county, if all or the only part of the public way or pub- lic place to be vacated is located outside the corporate boundaries of a municipality. (b) Notice of the petition must be given in the manner prescribed by subsection (c). The petition must: (1) state the circumstances of the case; .(2) specifically describe the property proposed to be vacated; and ($) give the names and addresses of all owners of land that abuts the property proposed to be vacated. (c) The legislative body shall hold a hearing on the petition within thirty (30) days after it is received. The clerk of the legislative body shall give notice of the petition and of thl~ time and place of the hear- lng: (1) in the manner prescribed in IC 5-3-1; and (2) by certified mail to each owner of land that abuts the prop- erty proposed to be vacated. The petitioner shall pay the expense of providing this notice. (d) The hearing on the petition is subject to lC 5-14-1.5. At the hearing, any person aggrieved by the proposed vacation may object to it as provided by section 13 of this chapter. 35 36-7-3-12 LOCAL GOVERNMENT (e) After the hearing on the petition, the legislative body may, by ordinance, vacate the public way or public place. The clerk of the legislative body shall furnish a copy of each vacation ordinance to the county recorder for recording and to the county auditor. (f) Within thirty (30) days after the adoption of a vacation ordi- nance, any aggrieved person may appeal the ordinance to the circuit court of the county. The court shall try the matter de novo and may award damages. As added by Acts 1981, P.L.$09, SEC.££. Amended b~l Acts 1981, P.L.46, SEC.6; Acts 198£, P.L.211, SEC.£. Historical Note As added, this section read: "(a) Persons who: "(I) own or are interested in any lots or parts of lots in a municipality; and "(2) want to vacate all or part of a public way or public ground in or contiguous to those lots or parts of lots; "may file a petition for vacation with the circuit court of the county in which the part of the public way or public ground to be vacated is located. "(b) Notice of the petition must be given in the manner prescribed by IC 5-3-1. The petition must: "(1) state the circumstances of the case; "(2) specifically describe the property to be vacated; "(3) name the persons who are in- terested in and will be affected by the vacation; "(4) be addressed to the municipality and its citizens; "(5) name the municipality as the ad- versary party in the proceedings; and "(6) state the time and place of the hearing on the petition. "A summons under this section shall be served on the municipality in the same manner as in other civil actions. "(c) The attorney for the petitioners shall deliver to the clerk of the circuit court the names and addresses of all the owners of land abutting the area proposed to be vacated, together with postage and copies of the notice pub- lished under subsection (b) for each of those landowners. The clerk shall then send a copy of the notice to each of the landowners by certified mail. "(d) If no remonstrance against the vacation is filed before the hearing on the petition, the court shall grant the petition. "(e) If a remonstrance against the vacation is filed before the hearing on the petition, the court shall hold a hear- ing on the remonstrance. The court shall grant as much 6f the petition as it finds to be required by justice. "(f) A vacation of property under this section may not be ordered over the objection of any person owning property contiguous to the area to be vacated, until the damages, if any, of the objecting person are: "(1) assessed by the circuit court; and "(2) paid to the clerk of the circuit court, to be used for the benefit of the objecting person by the petition- ers for the vacation. "The court shall assess damages against the petitioners ratably, according to the value of their property on the tax du- plicate. A vacation order under this section is conditional on the payment of any damages assessed within ninety (90) days after the order and assess- Acts 1981, P.L. 46, Sec. 6, rewrote the section. Acts 1982, P.L, 211, Sec. 2, rev~ote Subsec. (a), which read as amended by Acts 1951, P.L, 46, Sec. 6: "(a) Persons who: "(1) own or are interested in any lots or parts of lots in a municipality; and "(2) want to vacate all or part of a public way or public place in or con- tiguous to those lots or parts of lots: "may file a petition for vacation with the legislative body of the municipality in which the part of the public way or public place to be vacated is located." Formerly: lC 18-5-10-44. lC 15-5-10-50. Acts 1969, c. 239, ss. 604, 610. 36 PLAT' Public meetings, oF Publication of lega'. Vacation of public Municipal Corpo C.J.S. Municipal et seq. Abandonment of si Abutting property 5 Construction and n Findings of fact L Jurisdiction of cji 4 Mandamus 13 Nature and scope ( Nonabutting owne Notice 9 Petition g Presumptions and Prior law, validity Review 14 Title to vacated pr Validity of prior la Weight and suffic 1. Validity of pri, Former statute vacation proceedi to Const. Art. 1, property shall n without just coral Atkins, 1917, 114 Former statute of streets, was n Art. 1, § 21 proh taking of proper~ pensation to abu not abut on por~ Pittsburgh, C., C. Ill N.E. 619, 184 ? 2. Construction Section 18-5-i now, this sectio: dure for vacatin~ applicable to p~ property owners roadway, even ti outside corporat~ town. Citizens Town of Heron i N.E.2d 1228. Df a portion of s, Court of Ap- e evidence but evidence most ~, together with es which may ~wn of Kewan- on wisdom of i wholly within ~hether or not i legal right to of Wynnedale, ~ Ind.App. 337. cate a portion :e was in con- raised by the of vacation of for determina- and its action ~ appeal if the by substantial lue. Booth v. i8, 147 N.E.2d in proceeding property is a investigation, attack on the City of Mis- 297, 225 Ind. andamus suit to file roll of d by vacation s did not by necessity for )r any injury ara, Supreme quirad to in- ,as not neces- x tel. Miller, I. 225. to whether e a public al- te limits of a court. City meider, 1937, 02. being within the common inquire into I. Windie v. A3 N.E. 429, sent sustain- under form- t of a street itional ques- PLATTING & VACATION OF PROPERTY 36--7-3-13 tion on the ground that the statute au- thorized the taking of property without compensation. Southern Ry. Co. of In- diana v. Town of French Lick, 1913, 100 N.E. 762, 52 Ind. App. 447. 36-7-3--13 Vacation proceedings; filing of remonstrances and objections; grounds Sec. 13. A remonstrance or objection permitted by section 11 or 12 of this chapter may be filed or raised by any person aggrieved by the proposed vacation, but only on one (1) or more of the following grounds: (1) The vacation would hinder the growth or orderly develop- ment of the unit or neighborhood in which it is located or which it is contiguous. (2) The vacation would make access to the lands of the ag- grieved person by means of public way difficult or inconvenient. (3) The vacation would hinder the public's access to a church, school, or other public building or place. (4) The vacation would hinder the use of a public way by the neighborhood in which it is located or t~ which it is contiguous. As added by Acts 1981, P.L.309, SEC.£~. Amende~ ~by Acts 1981, P. LJ~6, $EC.7; Acts 198£, P.L.£11, SEC.3; P.L.353-1983, Historical No~e Acts 1981, P.L. 46, Sec. 7, inserted "or objection" and "or raised" in the introductory clause; substituted "ag- grieved parson" for "remonstrator" in Cl. (2); and substituted "place" for "grounds" at the end of Cl. (3). Acts 1982, P.L. 211, Sec. 3, substitut- ed "unit" for "municipality" in Cl. (1). P.L. 353-1~83, emerg, eft. March 15, 1983, substituted "difficult or inconven- iant" for "impossible" in Cl. (2) and "hinder" for "eliminate" in Cl. (3); add- ed Cl. (4); and rewrote Cl. (1), which prior thereto read: (1) "The area sought to be vacated is necessary to the growth of the unit in which it is located or to which it is contiguous." Formerly. lC 18-.5-10-45. Acts 1969, c. 239, s. 605. Library Municipal Corporations ~==657(5). C.J.S. Municipal Corporations §§ 1670to 1672, 1674. Notes of In general 1 Burden of proof 4 Findings of fact 6 Grounds of remonstrance 2 Suit for damages 7 Time for filing 3 Weight and sufficiency of evidence I.L.E. Municipal Corporations §§ 19, 361,375 et seq. DecJsione 1. In general In action to vacate strsets and public grounds in city, it was unnecessary for parties petitioning for vacation to testi- fy that they desired same, particularly where remonstrators did not deny that 5petitioners desired vacation. McClurg v. Carte, Inc., 1970, 262 N.E.2d 854, 255 Ind. Il0. 41 DULY ENTERED FOR TAXATION SUB]ECl TO F J~,~AL ACCEPTANCE ~Z©~ Fn~ TRANSFFR ORDINANCE NO. 89-OR-~_~ ~IIQ 1~ 1990 AN ORDINANCE CONCERNING THE ANNEXATION OF AUDITOR CLAR'R COUNTY WHEREAS, the boundary of the City of Jeffersonville, Indiana, is adjacent to the real estate described herein. SECTION I NOW, THEREFORE, BE IT ORDAINED by the Common Council of the City of Jeffersonville, Indiana: 1. That the following described land be, and the same is, hereby annexed and declared a part of the City of Jeffersonville, Indiana, to wit: Being a part of Surveys #2l, //22, 1/33, and #3~ of the lll~nos Grant to Clark County, Indiana, (Jeffersonville Township) and being further described as follows: Beginning in the corporation line of the City of Jeffersonville at the west corner of said Survey t/21, same being the north corner of Survey #20, and in the line of ~urvey //33; Thence along said corporation line, the following courses and distances; ~. N.35°~'W., 32 feet, more or less, to the northern Right-of-Way line of the New Albany-Char!estewn Pike; 2. S.50OW., along:said northern Right-of-Way line, ~563 feet, more or less, to the eastern Right-of-Way line of Hamburg Pike; 3. N.O°52'W., along said eastern Right-of-Way line, 250 feet, more or less, to the southeastern Right-of-Way line of the Baltimore and Ohio Railroad; 4. N.39°22'E., with said Right-of-Way line, 2166 feet, more or less, to the line dividing said Surveys #33 and 1t34; 5. N.39o48'W., along said dividing line, 599 feet, more or less; 6. S.39~22'W., [659.7 feet to the centerline of Hamburg Pike; 7. S.Oe45'E., with said centerline 85~.~ feet, more or less, to the northwesterly Right-of-Way line of the Baltimore and Ohio Railroad; 8. S.39~22'W., with said northwesterly Right-of-Way line, 38.8 feet, more or less to the west Right-of-Way line of Hamburg Pike; Thence leaving said city corporation line, the [ollowing courses and distances; 1. Northwardly, along said west Right-of-Way line, 3857 feet, more or less, to the northwestern line of the Meadows Subdivision, Unit 1 as shown in Plat Book 8 Page 40 of said county ret.orals, if said northwestern line was extended S.54~57'02"W., to said west Right-of-Way line; 2. N.54:57'O2"E., crossing said Hamburg Pike and along said northwestern line of said subdivision 4782.4 feet to the line dividing Surveys #34 and //35; 3. S.35"~7'47"E., along said dividing line, ]720.67 feet to the northern Right-of-Way llne of said Baltimore and Ohio Railroad; 4. S.44°05'02"W., along said northern Right-of-Way line, [209.5 feet, more or less; 5. S.40~E., crossing said Railroad Right-of-Way and along the line dividing Slaughter and Armstrong, 1300 feet, more or less, to the northern Right-of-Way line of said New Albany-Charlestown Pike; 6. Eastwardly, along said Right-of-Way line, 665 feet, more or less, to the western Right-of-Way line of the Jeffersonville-Charlestown Pike; 7. S.40"E., crossing said Jeffersonville-Charlestown Pike (parallel to and N.50eE., 60 feet from the line dividing Surveys #21 and t/22) 50 feet, more or less, to the eastern Right-of-Way line of said JeffersonvlUe-Charlestown Pike; 8. S.14°33'W., along said eastern Right-of-Way line~ 1367 feet, more or less,to the corporation line of said city; Thence along said corporation line the following courses and distances; I. S. 16°45'W., along said eastern Right-of-Way line, 1~37 feet;.~ 2. S.73°15'E., 330 feet; 3. S.57°14'47"E., 305 feet; 4. S.8°45'W., 575 feet; 5. N.81°I5'W., 709.8 feet to the original eastern Right-of-Way line of. said Pike; 6. S.16°45'W., along said'original eastern Right-of-Way line, 516 fee'S, more or less, to the northeastern line of a tract of land described in Deed Drawer 8, Instrument 12224 of said county records; 7. S.21°09'W., along said eastern Right-of-Way line, 2175 feet, more or less, to the line dividing Surveys #20 and #21; 8. N.35°41'W., along said dividing line, 3558 feet, more or less, to the PLACE OF BEGINNING. Containing 611154 acres, more or less. SECTION II BE IT FURTHER ORDAINED, that the boundaries of the City of Jeffersonville, Indiana, shall be, and the same are, hereby declared to be extended so as to include all of the real estate hereinabove indiana. described as part of the City of Jeffersonville, SECTION III This ordinance shall be in full force and effect on the 27th day of December, 1989, after its passage, promulgation, approval by the Mayor and publication in accordance with governing Indiana law. Passed and adopted Jef fersonville, Clark ATTEST: by the Common Council of the City of County, Indiana, on the ~'--day of PRESIDENT, COMMON COUNCIL RECEWED FORP CORD Presented by me as Clerk-Treasurer to the Mayor of said City of jeffersonville this ~'~ day of c~ , 1989. This Ordinance day of ~ CLERK-TREASURER ~ ' approved and signed by me this , 1989.