Less than a month after a Warsaw property owners association filed a lawsuit against the city and a business owner, a second case has been made.

The first case, a petition for a writ of certiorari - or an order from the court for the zoning board to review its decision - is directed at the Warsaw Board of Zoning Appeals' Jan. 24 decision to allow for an industrial use in a residential district. LRC Products Inc., a distributor of laminated rafters owned by Philip Barkey, was granted a variance and plans to store wooden rafters on the property in Rolling Hills, behind LRC and Gilliam Lanes and between Gilliam Drive and Center Lake. LRC bought the tract at auction and wants to use 1.4 acres, with an additional 8.107 not used for industrial purposes and the wetlands portion of the property not used at all.

In a lawsuit filed Monday in Kosciusko Circuit Court, Rolling Hills Property Owners Association and several residents of the subdivision are seeking a declaratory judgment and an injunction against LRC and the Warsaw Plan Commission.

The plaintiffs in the case are residents of the first and second additions of Rolling Hills Subdivision and the LRC property is in the fourth addition to the subdivision. The restrictions noted in the second addition of the subdivision platted in 1969 were incorporated into the fourth addition when it was platted in 1993.

This lawsuit claims that the restrictions in the second addition include that "No lots shall be used for other than residential purposes, no building shall be erected, altered, placed or permitted to remain on any lot other than one single family dwelling ... ."

The court document further states that the plat contains a provision "which states in part 'No business, trade, commercial or professional activity of any kind, nature or character shall be conducted or transacted upon any lot of this subdivision.'"

LRC proposes to vacate the entire plat of the fourth addition of Rolling Hills Subdivision through a hearing before the Warsaw Plan Commission. The lawsuit claims that enforcement of the covenants is by the terms of the recorded documents, and that the city may not have authority to vacate the property: Indiana Code "permits vacating of a subdivision ... under certain circumstances upon petition of the owner," but "is silent as to the vacating of covenants which are enforceable by persons other than the owner," according to the lawsuit filed by Warsaw attorney Richard Helm.

The injunction sought would be against LRC vacating any part of the fourth addition of the subdivision and against the city attempting to vacate the property without the consent of the residents of the second addition of the subdivision. The lawsuit also seeks a determination of the right of LRC to attempt to place commercial and/or industrial use within the plat precluded by existing covenants and a declaration of the rights of the parties with regard to recorded covenants.

The matter goes before the Warsaw Plan Commission during its meeting at 7 p.m. Monday in City Council chambers. [[In-content Ad]]