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Keesling v. Tipton County Plan Commission

United States District Court, S.D. Indiana, Indianapolis Division

November 12, 2014

ROBERT J. KEESLING and LINDSEY M. KEESLING, Plaintiffs,
v.
TIPTON COUNTY PLAN COMMISSION, Defendant.

ORDER GRANTING PRELIMINARY INJUNCTION

JANE MAGNUS-STINSON, District Judge.

This matter comes before the Court on the motion of Plaintiffs Robert J. Keesling and Lindsey M. Keesling (the "Keeslings') for a preliminary injunction pursuant to Fed.R.Civ.P. 65(a) and Local Rule 65-2(a). The Keeslings filed their Verified Emergency Motion for Preliminary Injunction (the "Motion for Injunction") on October 6, 2014. Defendant Tipton County Plan Commission (the "Plan Commission") filed its response to the Motion for Injunction on October 17, 2014. The Plan Commission also filed a Motion to Dismiss Proceedings, or in the Alternative, Motion for Stay Pending State Court Proceeding Resolution (the "Motion to Dismiss or Stay") on October 17, 2014. The Keeslings filed their reply in support of the Motion for Injunction on October 27, 2014, and a brief in opposition to the Motion to Dismiss was filed on October 29, 2014. The Plan Commission filed its reply in support of the Motion to Dismiss or Stay on November 3, 2014. The Motion for Injunction and Motion to Dismiss came before the Court for hearing on November 5, 2014. Prior to the hearing, the parties advised the Court that they reached an agreement to stipulate to the entry of the preliminary injunction requested by the Keeslings. Accordingly, the Court enters the following Order:

I. Background

Prairie Acres ("Prairie Acres") is a residential subdivision located in Liberty Township, Tipton County, Indiana. Motion for Injunction, ¶ 3. On May 28, 2003, the final plat (the "Plat") of Prairie Acres Section 10 ("Section 10") was recorded in the office of the Recorder of Tipton County, Indiana, at Record No. 63, Page 120. Motion for Injunction, ¶ 5. Section 10 contains seven (7) lots, which are numbered 66 through 72. Motion for Injunction, ¶ 6. The Keeslings own and reside at Lot 71 in Section 10, commonly known as 107 Lee Drive, Sharpsville, Indiana 46068. Motion for Injunction, ¶ 7. Non-party Aperture LLC ("Aperture") owns Lots 68 and 69 ("Lots 68 and 69") in Section 10, commonly known as 104 and 106 Lee Drive, Sharpsville, Indiana 46068. Motion for Injunction, ¶ 8. The Plat contains certain Covenants, Conditions, Restrictions and Regulations (the "Plat Restrictions") that restrict the permitted uses and improvements within Section 10, including without limitation the following:

a. All lots in Section 10 shall be used only for residential purposes;
b. The dwelling to be erected on each lot must be a single unit or single family type with a minimum floor area of sixteen hundred (1, 600) square feet, exclusive of open porches, breezeways, patios, and garages;
c. Aside from the dwelling house, no other outbuildings shall be erected or maintained on any lot;
d. No building or structure shall be erected, or the erection thereof begun, on any lot until the plans and specifications thereof shall have been approved by E.W. Kelley or some person properly designated in writing by them;
e. No buildings of any kind for commercial use shall be erected or maintained on any lot in Section 10;
f. No manufacturing or commercial enterprise, or enterprises of any kind for profit, shall be maintained upon, in front of, or in any connection with a lot in Section 10, nor shall any lot in any way be used for other than strictly residential purposes;
g. No noxious activities shall be carried on which may become an annoyance or a nuisance to the neighborhood at large in Prairie Acres;
h. The Plat Restrictions operate as covenants running with the land for the benefit of the owners of lots in Section 10, and shall be conveyed with the land.

Motion for Injunction, ¶ 9.

The Keeslings and Aperture obtained their respective lots subject to the Plat Restrictions. Motion for Injunction, ¶ 10. On June 25, 2014, Aperture filed a petition with the Plan Commission to vacate Lots 68 and 69 from Prairie Acres and Section 10, and to remove the Plat Restrictions from Lots 68 and 69, which was amended on July 2, 2014 (the "Aperture Petition"). Motion for Injunction, ¶ 11. The purpose of Aperture's request to vacate Lots 68 and 69 from Prairie Acres and Section 10, and to remove the Plat Restrictions, is to permit non-residential development on Lots 68 and 69. Motion for Injunction, ¶ 12. The Plan Commission held a public hearing (the "Hearing") on the Aperture Petition on July 17, 2014. Motion for Injunction, ¶ 14. At the close of the Hearing, the Plan Commission voted to approve the Aperture Petition, thus vacating Lots 68 and 69 from the Plat, and the Plat Restrictions from Lots 68 and 69. Motion for Injunction, ¶ 16. The approval letter from the Plan Commission states that Aperture ...


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