dissenting.
I dissent from that part of the Majority Opinion which concludes: “The trial court erred in failing to grant Lake Station’s motion to dismiss the tort damages action.” The underpinning of this conclusion rests upon the date of April 11, 1985. This underpinning is not supported by the record. The record supports either May 9, 1985 or the first part of October, 1985 as the factual underpinning date. Either of the aforementioned dates would make Moore’s notice timely. I would affirm the trial court.
The record shows that Moore filed his application for a building permit on March 12, 1985. (R 115, L 19) Later, on March 14, 1985, the Commission tabled Moore’s application and notified Moore to attend and to appear at its next Commission meeting which was scheduled for April 11,1985. (R 68)
At the April 11 meeting of the Commission, Moore’s application was tabled again by the Commission “subject to approval and legal advice from the city attorney.” (R 69, L 15) The Minutes of the Commission show the following:
“Decision by Hearing Authority was: Mr. Hodges tabled any decision to be made, subject to approval and legal advice from our city attorney. There was also a motion to pass for approval and research by our city attorney made by Mr. Dahlstrom, 2nd by Mr. Mamelson. Motion Carried.” (R 69, LL 14-16)
After this meeting, it would appear that approval of the permit was only a matter of obtaining a favorable opinion from the city attorney. Moore’s attorney sent three letters to the city attorney requesting that he issue a legal opinion on Moore’s permit approval which was pending before the Commission. (R 119, LL 20-27) The record further shows that Moore’s attorney met personally with the city attorney in an effort to obtain the legal opinion ordered by the Commission. (R 119, L 27 to R 120, L 4) However, no knowledge of the city attorney’s legal opinion was ever communicated to Moore’s attorney until the early part of October, 1985: “... when Mr. Gre-co finally informed me that he had reviewed the statutes, or the ordinances of Lake Station and found that we did not meet the square footage requirements. And that that’s what he was going to advise the uh, the building commission.” (R. 132, L 28 to R 133, L 6)
Even if the assumption is made that Moore’s attorney was not advised of the city attorney’s legal opinion during the first part of October, but was advised at the next scheduled meeting of the Commission, May 9, Moore’s October 12 notice would have been timely. The evidence in *64the record simply does not support the conclusion of the Majority. The record has been ignored. I would affirm the trial court.1
. Moore’s complaint alleges that its civil and constitutional rights under the laws and Constitution of Indiana and the Constitution of the United States were violated. If Moore plans to proceed under Section 1983, the notice question would be moot. See Judge Miller’s Opinion in George v. Hatcher (1988), Ind.App., 527 N.E.2d 199, 200; also see Felder v. Casey (1988), — U.S.-, 108 S.Ct. 2302, 101 L.Ed.2d 123.