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Farmers threaten suit over zoning overhaul

Farmers upset over the proposed overhaul of Elkhart County's zoning ordinance as an seizure of their land rights are now mulling a lawsuit to halt the effort.
Posted on April 13, 2011 at 1:00 a.m. | Updated on April 13, 2011 at 3:41 a.m.

Click here to see the Elkhart County Farm Bureau's notice of intent to sue.

Farmers upset over the proposed overhaul of Elkhart County's zoning ordinance as an seizure of their land rights are now mulling a lawsuit to halt the effort.

The Elkhart County Farm Bureau filed notice this week with Elkhart County officials of its intent to sue if authorities approve the new zoning measure, now in its fifth version, Draft E.

"There is no question that Draft E will result in an unconstitutional 'taking' of private property," said the notice, dated Monday and filed by Cheyenne, Wyo., lawyer Karen Budd-Falen.

The six-page notice, addressed to the Elkhart County Board of Commissioners and the Elkhart County Plan Commission, offered a multi-pronged attack on the proposed new zoning rules, in the works for the last two years. It's the latest in a string of criticism the proposal has drawn from farmers, real estate agents and developers, and comes on the eve of a planned public hearing on the matter Thursday.

James Kolbus, the plan commission lawyer, said he didn't think the notice, which he received Tuesday, would derail Thursday's event. But he reserved further comment, saying he was still researching its charges.

The notice from the Wyoming lawyer charges that Draft E violates Indiana law governing creation of local zoning rules because it "fails to consider the conservation of property values."

The farm bureau has charged that proposed changes limiting how farmland can be used would adversely impact its value. Among other things, the new zoning rules would require a rezone of farmland before it could be turned into a residential subdivision, which critics say would potentially cause a spike in development costs.

The filing also said the proposal violates the Fifth Amendment to the U.S. Constitution because the end result would be regulation of land "to the point of a taking."

It alluded to a grandfather clause that would allow a farm structure to be used as is, even if it violated the new zoning ordinance. However, if the structure were damaged, it would have to be rebuilt in the exact same footprint or comply with stricter terms of the new zoning ordinance, including, potentially, deeper setbacks.

"Again, this is not a matter of protecting the health and safety of the citizens, this is a matter of whether the government should take for itself a decision that should be made by the landowner," said the document.

The notice further called rules governing aesthetics "instrusive and restrictive" and said the proposed document is "voluminous, complicated and difficult to interpret." The plan commission, which is overseeing the overhaul, would have been "far better served" if it had revised the existing zoning ordinance rather than starting anew.

Bob Watkins, head of the county planning department, and Mike Yoder, a county commissioner and plan commission member, have defended the overhaul as a means of promoting orderly growth here. The new rules would promote residential development on the fringes of urban areas rather than far-flung farmland, among other things, allowing the county to more efficiently and economically serve the public.

Yoder, incidentally, served on an Indiana Farm Bureau political action committee and advised the state Legislature on ag matters before his election as county commissioner.

The county's zoning ordinance, adopted in 1965, outlines what sort of growth may occur and where in the unincorporated parts of Elkhart County. It also applies to the towns of Bristol, Millersburg, Wakarusa and Middlebury.

Thursday's hearing starts at 6 p.m. and will be held at the Elkhart County Public Services Building, 4230 Elkhart Road, Goshen.




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