Plum Creek Apartment Protest (copy)

An ongoing civil matter between the developers of a proposed apartment complex in Clarksville and the Town Council has a new development after an appeals court remanded the case back to the trial court judge to be heard with more evidence. 

CLARKSVILLE — The Indiana Court of Appeals has ruled that a case regarding rezoning for a proposed Clarksville apartment complex be remanded back to the original court to hear more evidence.

The order, passed down Friday, states that there is disagreement between the two parties — Plum Creek Crossing, LLC, and the Clarksville Town Council — on whether or not the town was reasonable in denying a rezoning request that would allow development of the apartments near Westmont Drive in Clarksville's north end.

In December 2016, developers for the proposed Plum Creek Crossing apartment complex applied to the town to rezone the roughly three acres of land to residential from commercial.

Subsequent reports made by town departments and outside contractors indicated that the project was one that could work in that area.

In February 2017, the town planning department issued a report that the proposal was in line with the town's comprehensive plan and would be a "good design and land use buffer" between businesses and single family homes in the area. A traffic study that same month showed that an apartment complex would generate less traffic than a commercial property.

Also in 2017, Plum Creek Crossing developers hired consultant Integra Realty Resources who determined that "the complex was unlikely to negatively affect the property values of neighboring properties."

Despite these reports, during public meetings of both the Clarksville Plan Commission and the Clarksville Town Council, several residents spoke during public comment, expressing concerns about increased traffic and lowered property values if the apartments were to be built.

The commission approved the rezoning on March 1, 2017, with a favorable recommendation to the town council. After being heard and tabled at two meetings, the council voted 4-3 on March 21, 2017, to deny the rezoning.

In May 2017, Plum Creek filed a civil suit against the town and the four council members who had voted against the rezoning, amending the complaint later to say the council's decision was "arbitrary, capricious, illegal and an abuse of discretion," court records show.

In November, special Judge Terrence Cody, in a partial summary judgment, ruled in favor of Plum Creek and ordered the town to "rezone the real estate ... and otherwise permit and approve [the project.]"

The town appealed, stating in court documents that "the trial court erroneously substituted its judgment for that of the [town's] legislative body," the town council.

John Kraft, attorney for Plum Creek Crossing, said Monday that the Court of Appeals' ruling still gives hope for the future of the apartments.

"In effect, while the decision in effect was against Plum Creek [Crossing,] ... it did not say Judge Cody was prohibited from making a decision on a legislative action by the Town of Clarksville," he said. "... Judge Cody does have that authority, he merely has to hear more evidence as there were genuine issues of material fact."

Greg Fifer, representing the Town of Clarksville, was not available for comment by press time.

The parties now have 30 days to file an appeal to the Indiana Supreme Court. If they don't, either party may move to take the matter back to the trial court to be heard with more evidence — oral arguments and testimony not presented before the judge's original decision in November that Clarksville must approve the rezoning.

Kraft said it's too early to say whether or not they will appeal, and Fifer has not indicated to him what the town's plans will be at this time.

"I think at the end of the day, we'll wait and see what happens with that 30 days," Kraft said.

Aprile Rickert is the crime and courts reporter at the News and Tribune. Contact her via email at aprile.rickert@newsandtribune.com or by phone at 812-206-2115. Follow her on Twitter: @Aperoll27.