Hearing Held On Fairground Racing Lawsuit, Racing Still On For Tomorrow
WARSAW — A hearing was held today, May 10, in Kosciusko County Circuit Court regarding the case of Mary Clemens, Merle Conner, Judith Conner and Chris Cummins, all of Warsaw, versus the Kosciusko County Community Fair. While no final decision was made, it was determined that the races scheduled for tomorrow, May 11, will occur.
The hearing was held to determine if a temporary restraining order or preliminary injunction would be established to enforce the previous agreement prohibiting motorized racing.
Over 50 people crowded into Circuit Court for the hearing. The majority of the audience was in support of the homeowners, making this fact known with “I Support The Homeowners” stickers on their clothing.
Cummins was called to the stand as the plaintiff’s first witness. He lives on North Bay Drive, which he described as being five to six city blocks from the fairground. Cummins’ father James Cummins and eight other homeowners were involved in the original lawsuit dating back to 1990. Cummins now lives in and owns the residence his father lived in during the original lawsuit.
Cummins stated he bought the house in 1998, “Because I knew there wouldn’t be racing. … We thought it had been settled. … We thought it was something we wouldn’t have to deal with.”
He described the racing as loud, dusty and dirty. According to Cummins, window panes rattle during the races. He stated that it is too loud to hold a conversation outdoors or enjoy the lake.
In March of this year, it came to Cummins’ attention that races were to occur again. He and fellow neighbors met to discuss how to enforce the previously created restrictive covenant. The restrictive covenant was the result of the 1990 lawsuit and states, “The fair association shall not use the real estate for motorized racing, except the fair association shall have the right to continue the use of its grandstand and racetrack facility on the real estate for recreational and/or fairground activities other than motorized racing.”
A cease and desist letter was sent to the fairgrounds but events with motorized racing occurred on April 27 and 28. Cummins witnessed the racing on April 27, when he was getting his boat from the storage area at the fairgrounds. The event was drag racing which included vehicles ranging from golf carts to diesel engine trucks.
Cummins went on to describe the harm that the racing has caused him. It has hindered his right as a homeowner to enjoy his property and time outside with his family and he believes it has impacts on his property value.
“There’s many ways you can devalue property and one of them is this. … Who’s going to want to buy a home on the lake when there’s other lakes without a drag strip?”
During the defendant’s cross argument, it was noted that while Cummins’ father is directly listed in the restrictive covenant, there is no legal description of the homeowners property. Defense Attorney Edward Hearn stated that according to the Statue of Frauds, a restrictive covenant must contain a legal description of both the benefitted and burdened property. He argued that without the proper legal descriptions, the original restrictive covenant is invalid.
During cross, Cummins also admitted that no true assessment of his property has been done to factor in any potential loss due to the racing.
The defendants then had a chance to call their first witness, Yvonne Keirn. Keirn lives on Fairlane drive which is next to the fairgrounds. Keirn is able to see parts of the racetrack from the lakeside part of her home. She stated that her home is in closer proximity to the fairgrounds than Cummins’ home.
Keirn purchased her house in 2008 and stated she has been at home and outside while multiple racing events were being held at the fairgrounds. “We don’t let that interfere with what we want to do.” She further stated that she is able to sleep with the windows open while racing events are occurring. The noise does not bother her.
Randy Shepherd, director of the fair, was the next witness called to the stand. Shepherd has been involved with the fairgrounds “on and off” for the past 15 years. He provided different exhibits that outlined the revenue that would be lost if the May 11 racing wasn’t held and the revenue lost and damages that would occur if the motorized racing was canceled for the remainder of the year.
Shepherd testified that the current motorized racing is different in sound level than the racing that occurred around 1990. “We require mufflers, we require them to be a little bit more controlled with their noise.” He went on to state that there has been motorized racing occurring on the fairgrounds property for the past 15 years, as long as he has been involved.
Judge Michael Reed took all the testimony under advisement and ordered the plaintiffs to post a ten percent $40,000 bond.
It was noted that the bond would not be able to be posted until early next week. Reed stated that an injunction would not be valid until the bond is posted, which means the races planned for May 11 could occur.
Reed further stated that he would take time to review the Statue of Frauds and then another hearing will be held on the matter.
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