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APPEAL TO THE SOUTH BEND COMMON COUNCIL OF THE
HISTORIC PRESERVATION COMMISSION'S DENIAL OF
CERTIFICATE OF APPROPRIATENESS, APPLICATION #2021-0810
APPELLANT: JEFFREY FLATHERS, MANAGER FOR WE INSTER
HOLDINGS LLC Filed in Clerk's
office
DATE: OCTOBER 18, 2021 OCT
18 ZllZl
To the South Bend Common Council: cay 1% kN MLE
JON
5007-H BAND �
Westminster Holdings LLC, owner of 768 Portage Avenue, South Bend, Indiana
hearby APPEAL the Historic Preservation Commission's (HPC's) denial of the
Application for a Certificate of Appropriateness #2021-0810 and request that the
Common Council overturn this ruling on Constitutional grounds.
FACTS: Westminster Holdings LLC (WHLLC) acquired 768 Portage Avenue on April
28, 2021. In July 2021, while conducting routine maintenance at the house, Mr. Flathers
(Appellant) replaced broken windows on the northwest facade with Pella, vinyl -clad,
dual pane energy efficient windows. At the time, the City of South Bend was
constructively aware that WHLLC had purchased 768 Portage because it released
certain liens and orders to comply that had been placed on the prior owners. The
windows were replaced, under honorable intentions, for health and safety reasons. The
existing tenants were thrilled to have their old, broken windows replaced with energy-
efficient ones, This also abated a lead-based paint issue, and so was considered a win-
win for landlord and tenant, especially as the tenants have a minor child.
In August 2021, Mr. Adam Toering, historic preservation administrator for the City of
South Bend sent a letter to WIC LC requesting an application for a Certificate of
Appropriateness for the work, and a $20 filing fee. WHLLC submitted an application
and paid the fee.
On September 20, 2021, Mr. Flathers, representing WHLLC, appeared before the
Historic Preservation Commission and presented his case. During his presentation, the
Appellant specifically asked each of the commissioners whether they were 1) residents
of South Bend and 2) residents of Portage Township. At the time, an attorney named
Sandy Kennedy, ostensibly representing the Commission, attempted to silence the
Appellant by quashing his line of questioning, yelling at him, at one point "Sit down
little man!"
Still, when queried, every one of the eight commissioners present answered yes, by a
show of hands, that they were residents of South Bend and residents of Portage
Township. The Chapin Historic District lies within Portage Township.
The Commission, by a vote of 8-0 denied the COA.
On September 23, 2021, Mr. Toering sent a letter addressed to the Appellant, outlining
the denial, referencing the Standards and Guidelines of the Chapin Historic District
(EXHIBIT 1). The letter noted that "Pursuant to South Bend Municipal Code Section
21-12.04(b)((6)(G)(ii), an applicant may appeal the denial of a Certificate of
Appropriateness by the Historic Preservation Commission to the Common Council,
which shall make a final determination of the application."
This APPEAL is founded on three Points of Action, all of which are Constitutionally -
based.
CAUSE OF ACTION #1
The Indiana State Constitution, Article 6, Section 6 states:
"All county, township and town officers, shall reside in their respective counties,
townships and towns; and shall keep their respective offices at such places therein, and
perform such duties, as may be directed by law. "
When Mr. Flathers asked the commissioners whether they were residents of Portage
Township, all eight commissioners said, or indicated, "yes". Mr. John Tiffany, sitting as
a commissioner, seemed to be nervous and hedging in his response, a point noted by the
Appellant. Still, Mr. Tiffany raised his hand and answered "yes" that he lived in Portage
Township.
In a Mortgage document filed with the Cass County, Michigan Clerk, dated April 28,
2021, Mr. Tiffany obtained a loan from 1St Source Bank to purchase 68432-68434
Ginger Street, Edwardsburg, MI 49112. That document lists the borrower's address as
17540 Darden Road, South Bend, IN 46635. The first two pages of the Mortgage is
attached as evidence to this appeal (EXHIBIT 2).
Neither Mr. Tiffany's old home on Darden Road nor his new home in
Edwardsburg, Michigan, are in Portage Township.
In answering the question posed to him by the Appellant, as to whether he was a
resident of Portage Township, Mr. Tiffany was not truthful. The implications, however,
go far beyond that.
As an acting officer for the City of South Bend on the Historical Preservation
Commission, issuing a ruling on the Chapin Park LHD, Mr. Tiffany was constitutionally
required to be a resident of Portage Township, site of the District.
The text of Article 6, Section 6 states that "All town officers shall reside in their
respective... townships". Since Mr. Tiffany did not reside in Portage Township at the
time of his vote, the entire Commission's ruling must be overturned. Mr. Tiffany, and the
Historic Preservation Commission, acting under color of law, actively attempted to
deprive Mr. Flathers of his Constitutional rights. The Commission's attorney, Ms.
Kennedy, in seeking to stop the Appellant from posing a fundamental Constitutional
inquiry, also tried to interfere actively with his right to know whether or not
commissioners were constitutionally seated to adjudicate the COA.
CAUSE OF ACTION #2
The second Constitutional trespass by the HPC is on Amendment 14, the "Equal
Protection Clause" to the United States' Constitution. Said Amendment, Section 1 reads,
inter alia:
"No State shall... deprive any person of life, liberty, or property, without due process of
law; nor deny to any person within its jurisdiction the equal protection of laws. "
In his presentation of the Commission, September 20, 2021, Appellant supplied a sheaf
of 8 x 10 glossy photos of homes within the Chapin Park LHD, all of which had vinyl -
clad windows. Appellant and his wife had walked along the sidewalks of Leland and
Ashland Streets, as a sample of the area. They took photos of several homes within a
one block radius, Appellant later presented 17 such photos to the Commission during
his testimony (Collectively, EXHIBIT 3)
Commissioner Downs-Krostenko stated that all the homes in Appellant group of photos
had their vinyl -clad windows installed prior to the formation of the Chapin Park LHD.
The district was established in 2005. By extension, the Commissioner implied that all of
the vinyl -clad windows in the photos were legal and thus "grandfathered in."
An absolute majority of homes in the sample had vinyl -clad windows. Appellant noted
that, and wrote comments discussing the issue of curb -appeal, and historic preservation.
Appellant expressed the opinion that the retrofitted homes were more attractive, energy
efficient, and more likely to last durably as exemplars of historical preservation.
One of the homes in the group of photos, 815 Ashland, clearly had freshly -installed
windows. In fact, Appellant and his wife had a conversation with the owner of that
property, who happened to be in his front yard. He said that, yes, he was currently
changing his windows for vinly-clad, energy efficient ones. He had not yet finished the
trim, and therefore the nails were still visible in the nailing fin, clearly visible in the
photo.
On Page 2 of his September 23rd letter, Mr. Adam Toering referenced the Chapin Park
Local Historic District Standards and Guidelines.-
"About
uidelines:
"About half the structures in the district have aluminum storm windows; the other half
have wood storm windows. "
These words were written in 2005, sixteen years ago. So, sixteen years ago, according
to the Standards and Guidelines, there were no vinyl windows, since half of the storm
windows were wood and half were aluminum, There is no mention of any vinyl -clad
windows in the document.
Despite this, Ms. Downs-Krostenko claimed that the stack of photos of vinyl windows
Appellant introduced to the Commission were all grandfathered in many years ago.
Since the Appellant's sample of the district demonstrated that the majority of homes
presented vinyl windows, there is a strong Constitutional question under the Equal
Protection Clause. Why are so many homeowners in Chapin Park allowed to replace
their windows with energy-efficient modern vinyl ones, and yet the HPC refused to
grant Appellant's COA because it was "outside the standards and guidelines?"
Mr. Toering's letter quotes the required window and door parameters:
"When deteriorated beyond repair, they shall be replaced with units and trim
resembling the original".
In quoting the Guidelines, Mr. Toering reiterated the very case made by the Appellant
before the commission, namely, that the installed Pella windows clearly resembled the
original. Appellant provided a photo of the installed windows at 768 Portage,
reinforcing the fact that the new vinyl windows were almost a perfect match to the old.
Thus, Appellant's actions were within the spirit and letter of the Guidelines.
Moreover, nowhere in the Guidelines are vinyl -clad windows proscribed. There is no
prohibition on vinyl windows in Chapin Park. Many homes have them, and neither
the HPC, nor the administrator Mr. Toering, can point to any such restriction in the
Guidelines. Their own rules do not specifically ban vinyl windows.
That the HPC ruled to deny the COA, when the majority of homes in Chapin Park
contain vinyl -clad windows is a clear violation of the Equal Protection Clause to the
Appellant.
CAUSE OF ACTION 03
The 4tn Amendment to the U.S. Constitution states:
"The right of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall not be violated, and no Warrants
shall issue, but upon probable cause, supported by Oath or affirmation, and
particularly describing the place to be searched, and the persons or things to be
seized. "
In his September 23, 2021 notice, Mr. Toering, representing the HPC wrote "Staff
retained the removed window sashes were you to want to reinstall them in the window
openings.
That South Bend employees, apparently, entered upon Appellant's property without a
warrant and seized the old windows is a clear violation of the 4' Amendment.
Moreover, it represents theft under color of law. At no point has Appellant been
provided with an warrant to legalize the seizure of the old window sashes and the
taking thereof stands as a violation of Appellant's 4"' Amendment rights.
CONCLUSION
For the Causes of Action described herein, Appellant formally requests the Common
Council overturn the HPC's ruling and AFFIRM the Certificate of Appropriateness
application #2021-0810.
Signed,
f z
Jeffrey Flathers, Manager
Westminster Holdings LLC
Filed in clerk
Office
APPENDIX OF EXHIBI S 0C
oRwN J0
CITYCLE sotlrM
-- EN_!J, IN
EXHIBIT 1
Letter dated September 23, 2021, sent by Mr. Adam Toering, Historical Preservation
Administrator for the City of South Bend Historic Preservation Commission to Jeffrey
Flathers of Westminster Holdings LLC.
EXHIBIT 2
Mortgage recorded in the Cass County, Michigan assessor's office showing grantor,
John Tiffany, a then resident of 17540 Darden Road, South Bend, IN 46635 (an address
outside Portage Township) obtaining a mortgage to purchase 68432-68434 Ginger
Street, Edwardsburg, MI 49112 (an address outside Portage Township, outside South
Bend, and outside of Indiana).
EXHIBIT 3
Seventee
n glossy 8 x 10 photographs. All of these photographs were taken on the morning of
September 20, 2021 in the Chapin Park Local Historic District. The majority of the
pictures demonstrate clearly the presence of vinyl -clad windows in houses on Ashland,
Leland and Portage.
This collection is a sample of the homes within Chapin Park, but the clear majority of
homes within the sample had updated vinyl windows.
The home at 815 Ashland, moreover, was a work in progress. Window fins had been
recently nailed in, but not re-covered by framing material.
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When recorded, return to:
1st Source Bank Attn: Document Control
MLO.document.control@lstsource.com
P.O. Box 149
South Bend, IN 46624-0149
800-021-8329
This document was prepared by:
Emily Dubree
1st Source Bank
100 North Michigan St., Suite 800
South Bend, IN 46601
674-246-4832
LOAN #: 006016124
178045 L: 1194 P: 2446 M
04/28/2021 09:32:01 AM Total Pages: 15 Fees: $30.00 41 4;
Monica McMichael, Register of Deeds - Cass County, MI
MORTGAGE
[Space Above This Line For Recording Data]
Filed in Clerk's Office~
8 'Z U Z1
taAV1►N i1�. JON>rS
CITY CLERIC, SOUTH BEND, IN
DEFINITIONS
Words used in multiple sections of this document are defined below and other words are defined in Sections 3, 11, 13,
18, 20 and 21. Certain rules regarding the usage of words used in this document are also provided in Section 16.
(A) "Security Instrument" is document, which is dated April 26, 2021, together with all
Riders to this docu
(B) "Borrower"' JOHN PHILIP TIFFANY.
('Borrower's address is 17540 Darden Rd
South Bend, IN 46636.
Borrower is the mortgagor under this Security Instrument.
(C) "Lender" is 1st Source Bank.
Lender is an Indiana Corporation, organized and existing under the laws of
Indiana. Lender's address is 100 North Michigan St., Su Ito
800, South Bend, IN 466011.
)F X H I 617 2— L: 1194 P: 2447 Page 2 of 15 178045
LOAN #: 006016124
(G) "Riders" means all Riders to this Security Instrument that are executed by Borrower. The following Riders are to be
executed by Borrower [check box as applicable]:
9 Adjustable Rate Rider ❑ Condominium Rider ❑ Second Home Rider
❑ Balloon Rider ❑ Planned Unit Development Rider ❑ Other(s) [specify]
2114 Family Rider ❑ Biweekly Payment Rider
❑ V.A. Rider
(H) "Applicable Law" means all controlling applicable federal, state and local statutes, regulations, ordinances and
administrative rules and orders (that have the effect of law) as well as all applicable final, non -appealable judicial
opinions.
(1) "Community Association Dues, Fees, and Assessments" means all dues, fees, assessments and other charges
that are imposed on Borrower or the Property by a condominium association, homeowners association or similar
organization.
(J) "Electronic Funds Transfer" means any transfer of funds, other than a transaction originated by check, draft, or
similar paper instrument, which is initiated through an electronic terminal, telephonic instrument, computer, or magnetic
tape so as to order, instruct, or authorize a financial institution to debit or credit an account. Such term includes, but is
not limited to, point-of-sale transfers, automated teller machine transactions, transfers initiated by telephone, wire
transfers, and automated clearinghouse transfers.
(K) "Escrow Items" means those items that are described in Section 3.
(L) "Miscellaneous Proceeds" means any compensation, settlement, award of damages, or proceeds paid by any
third party (other than insurance proceeds paid under the coverages described in Section 5) for: (i) damage to, or
destruction of, the Property; (ii) condemnation or other taking of all or any part of the Property; (iii) conveyance in lieu
of condemnation; or (iv) misrepresentations of, or omissions as to, the value and/or condition of the Property.
(M) "Mortgage Insurance" means insurance protecting Lender against the nonpayment of, or default on, the Loan.
(N) "Periodic Payment" means the regularly scheduled amount due for (i) principal and interest under the Note, plus
(ii) any amounts under Section 3 of this Security Instrument.
(0) "RESPA" means the Real Estate Settlement Procedures Act (12 U.S.C. §2601 et seq.) and its implementing
regulation, Regulation X (12 C.F.R. Part 1024), as they might be amended from time to time, or any additional or
successor legislation or regulation that governs the same subject matter. As used in this Security Instrument, "RESPA"
refers to all requirements and restrictions that are imposed in regard to a "federally related mortgage loan" even if the
Loan does not qualify as a "federally related mortgage loan" under RESPA.
(P) "Successor in Interest of Borrower" means any party that has taken title to the Property, whether or not that party
has assumed Borrower's obligations under the Note and/or this Security Instrument.
TRANSFER OF RIGHTS IN THE PROPERTY
This Security Instrument secures to Lender: (i) the repayment of the Loan, and all renewals, extensions and modifications
of the Note; and (ii) the performance of Borrower's covenants and agreements under this Security Instrument and the
Note. For this purpose, Borrower does hereby mortgage, warrant, grant and convey to Lender and Lender's successors
and assigns, with power of sale, the following described property located in the County
[Type of Recording Jurisdiction] of Cass [Name of Recording Judsdiction]:
SEE LEGAL DESCRIPTION ATTACHED HERETO AND MADE A PART THEREOF
which currently has the address of 68432-68434 Ginger St, Edwardsburg,
[Street] [City]
Michigan 49112-9507 ("Property Address"):
[Zip Code]
T,,,.�Tuco %A„Tu -110- .m„r.,,,emo„rc nnuv nr hPrPaftPr erected on the orooerty, and all easements, appurtenances,