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HomeMy WebLinkAboutRespondents' Joint Brief in Opposition ld OP" lAY) STATE OF INDIANA IN THE HAMILTON SUPERIOR COURT SS: COUNTY OF HAMILTON CAUSE NO. 29D03- 0805 -MI -565 MIDWEST HOSPITALITY GROUP, INC., and MOTELS OF CARMEL, LLP, Petitioners, Honorable David K. Najjar, Special Judge v. THE CITY OF CARMEL, and THE CARMEL PLAN COMMISSION, Respondents. RESPONDENTS' JOINT BRIEF IN OPPOSITION TO PETITIONERS' BRIEF ON WRIT OF CERTIORARI Respondents, The City of Carmel and The Carmel Plan Commission "the Commission (collectively, "Carmel by counsel, respectfully submit their joint brief in opposition to the Petitioners' Brief on Writ of Certiorari ("Brief') filed by Midwest Hospitality Group, Inc. and Motels of Carmel, LLP (collectively, "Petitioners FACTUAL AND PROCEDURAL HISTORY 1. This case arises from Petitioners' desire to construct a Holiday Inn motel on a 2.65 acre parcel of real estate adjacent to Smokey Row Road and Pro Med Lane, just east of U.S. Highway 31, in Carmel, Indiana "the Property CARMEL 0000577 -79. 2. The Property is within 600 feet of the right -of -way for U.S. Highway 31 and thus is subject to the U.S. Highway 31 Corridor Overlay Zone of the Carmel /Clay Zoning Ordinance "Ordinance CARMEL 0000327 -28. 3. On October 20, 2006, the Commission received an Application for Architectural Design, Lighting, and Signage from Petitioners. CARMEL 0000577 -78. 4. On April 1, 2007, Petitioners filed a Development Plan Application with the Commission (dated February 16, 2007). CARMEL 0000580 -618. 5. Petitioners filed an ADLS Amendment Application revising their architectural design, landscaping, lighting and signage plans on June 22, 2007. CARMEL 0000689. 6. Over the course of several months, Petitioners submitted plans and corresponded with the Technical Advisory Committee "TAC the Carmel Special Studies Committee and the Department of Community Services "DOCS with respect to their development plan and ADLS applications as well as amended applications. See generally CARMEL 0000738 -1280. 7. On March 14, 2008, Petitioners submitted an ADLS Amendment Application in advance of a Carmel Plan Commission Special Studies Committee meeting to be held on April 1, 2008. CARMEL 0001231 -63. 8. On April 1, 2008, the Carmel Special Studies Committee reviewed the Applications and referred the Applications to the Commission, without recommendation, for its April 15, 2008 public meeting. CARMEL 0001230. 9. On April 15, 2008, the Commission held a public meeting at which representatives for Petitioners presented the Applications. At the conclusion of the meeting, the Commission unanimously denied the Applications by a 7 -0 vote. CARMEL 0001284 -86. 10. Petitioners filed a Verified Petition for Writ of Certiorari, Writ of Mandamus, Declaratory Judgment, and Expedited Hearing "Verified Petition on May 9, 2008. Petitioners' Development Plan Application and ADLS Amendment Application filed April 1, 2008 will be referred to herein as "the Applications." 2 The April 15, 2008 Decision and Findings "Findings indicate that the Commission voted 9 -0 to deny the Applications, which is a typographical error. 2 11. On May 30, 2008, within the time prescribed by the Ordinance and Carmel Plan Commission Rules of Procedure, the Commission issued its Findings setting forth the basis for its denial of the Applications. CARMEL 0001284 -86. 12. On June 5, 2009, Petitioners submitted their opening Brief, a copy of which the undersigned counsel received on June 8, 2009. 13. Pursuant to this Court's Pre -Trial Order dated March 4, 2009, Carmel and the Commission's response briefs are due on or before July 23, 2009. In an effort to avoid unnecessary duplication, The City of Cannel and the Commission now timely submit a joint brief. STANDARD OF REVIEW Petitioners face a formidable standard of review that heavily favors upholding the Commission's decision. Ind. Code 4- 21.5- 5 -14(d) states that a court shall overturn an agency decision only if it is: (1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) contrary to constitutional right, power, privilege, or immunity; (3) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right; (4) without observance of procedure required by law; or (5) unsupported by substantial evidence. According to the Indiana Supreme Court, this is the appropriate standard of review for an appeal of a plan commission decision. See Equicor Dev., Inc. v. Westfield Washington Twp. Plan Comm 'n, 758 N.E.2d 34, 36 (Ind. 2001). As the party challenging the Commission's decision, Petitioner faces the burden of establishing that the Commission erred. Id.; Ind. Code 4- 21.5 -5- 14(a). As the standard of review indicates, the Commission's decision is afforded a great deal of deference on appeal: 3 We will reverse the Commission's decision only if the evidence, viewed as a whole, demonstrates that the Commission's conclusions are clearly erroneous. The reviewing court gives the Commission's decision great deference when the findings of fact or the application of the facts to the law are challenged.... We presume that the Commission's decision was correct and it will not be overturned unless it is arbitrary, capricious, or an abuse of discretion. The Commission's decision will be sustained if it was correct on any grounds stated for disapproval of the petition. Wolff v. Mooresville Plan Comm'n, 754 N.E.2d 589, 592 (Ind. Ct. App. 2001) (emphasis added) (internal citations omitted); Yater v. Hancock County Planning Comm 'n, 614 N.E.2d 568, 570 (Ind. Ct. App. 1993) (noting that the standard of review "naturally requires great deference toward the administrative board by the reviewing court"). This Court's review of the Commission's denial of the Applications is limited to the facts disclosed in the return to the writ of certiorari. Ind. Code 36 -7 -4 -1009. While this Court may supplement that evidence by hearing testimony, it cannot conduct a trial de novo. Id. Moreover, supplemental evidence is admissible only if it relates to topics discussed before the zoning board. Newman v. Spence, 565 N.E.2d 350, 355 (Ind. Ct. App. 1991) "When reviewing the action of a zoning board, the trial court may permit additional evidence so long as it confines such evidence to subjects covered in the hearing before the zoning board. With respect to this Court's construction of provisions of the Ordinance, "court[s] will apply the same principles as those employed for the construction of statutes." T. W. Thom Const., Inc. v. City of Jeffersonville, 721 N.E.2d 319, 324 (Ind. Ct. App. 1999). A court must "interpret the ordinance as a whole and give its words their plain, ordinary, and usual meaning." Johnson Oil Co., Inc. v. Area Plan Comm'n of Evansville and Vanderburgh County, 715 N.E.2d 1011, 1015 (Ind. Ct. App. 1999). "[Courts] are not at liberty to construe a statute that is unambiguous." T. W. Thom, 721 N.E.2d at 324. 4 ARGUMENT I. The Commission's Findings Are Supported By The Evidence And Proper. The Commission's denial of Petitioners' Applications was proper and is supported by substantial evidence. The Commission recited eleven bases for denial in its Findings, but an exhaustive review of each separate Finding is unnecessary because this Court must affirm the Commission's decision if any one of the eleven bases for denial is correct. Wolff, 754 N.E.2d at 592 "The Commission's decision will be sustained if it was correct on any grounds stated for disapproval of the petition. Thus, in the interests of judicial economy and streamlining the volume of argument, Carmel will focus on six of the Findings, each one of which is independently sufficient to affirm the denial of the Petitioners' Applications. 1. §23B.02.A.2.a: The Proposal is not compatible with existing site features including topography and wooded areas, in that the Proposal necessitates excessive utilization of retaining walls and calls for the destruction of virtually all of a mature woodland. Petitioners insist in their Brief (p. 6) that they "provided a landscape plan that complied with the requirements of the Ordinance" and that "[n]othing in the Ordinance precludes the removal of woodlands." Petitioners are wrong on both counts. First, the Ordinance does clearly limit the removal of woodlands. Section 23B.10.04 of the Ordinance states that a landscape plan must preserve 70% of the existing trees that are nine -inch DBH (diameter at breast height) or larger and that are located within the Greenbelt, Planting Strips, or perimeter buffering. CARMEL 0000338. In addition, Petitioners have not "complied with the requirements of the Ordinance," specifically Section 23B.10.04. Despite nearly a year and a half of proceedings 3 The fact that Carmel discusses only six of its Findings herein should not be construed as an admission that the others are indefensible. They are not. Some of the Findings while entirely true and accurate are more abstract in nature and are merely intended to relate general concerns of the Commission members. Others, such as the findings relating to landscaping requirements and traffic, are much more involved and require a detailed analysis that is unnecessary given that the Commission's decision is sustainable on other grounds. 5 before the Commission, nowhere in any of the plans submitted by Petitioners or their agents do they demonstrate that 70% of the existing trees will be preserved. Petitioners represent in their Brief (p. 6) that Scott Brewer, the City Forester for Carmel, "approved" the Petitioners' tree preservation plan, thereby insinuating that Mr. Brewer agreed that the Applications complied with the 70% threshold specified in Section 23B.10.04. However, the record directly contradicts Petitioners' claim. After his initial review, Mr. Brewer noted that "[i]n the US 31 overlay zone there are requirements for tree preservation" and declared that the Applications were flawed in that "[t]here is no indication of any tree preservation at all." CARMEL 0000624. Mr. Brewer reiterated this concern in an internal email on May 7, 2007. CARMEL 0000667. On October 27, 2007, Mr. Brewer made it clear that significant deficiencies still existed with the revised tree preservation plan and that the Applications were not in compliance with the Ordinance. CARMEL 0000885 -88. On March 28, 2008, after reviewing revised landscaping and construction plans, Mr. Brewer indicated "an apparent disconnect between the landscape and tree preservation plans and the critical engineering set of plans like the storm water plan, or the drainage plan." CARMEL 0001211. Mr. Brewer went on to note that it was unclear how many trees would be retained due to discrepancies in the "tree protection zone" and the "tree protection fence" and that the Storm Water Plan depicted a silt fence where trees were supposed to be retained. Id. In the staff report to the Commission that preceded the April 15 meeting, it is clear that Mr. Brewer's concerns had not been satisfactorily addressed. CARMEL 0001282 "Urban Forestry Dept comments: The City Forester still finds discrepancies between the tree preservation plan and the construction documents. 4 At least one member of the Commission also voiced concerns about the inadequate tree preservation plan as early as October 2007. CARMEL 0000890. 6 Petitioners ignore all of this evidence and instead declare without citation to the record that "Petitioners submitted a tree preservation plan approved by the Urban Forester." Brief, p. 6. Even if the tree preservation plan itself would have been acceptable to Mr. Brewer, there were other plans Petitioners submitted that were inconsistent with the tree preservation plan, thereby creating discrepancies that the Commission could not reconcile. At no point did Petitioners provide Mr. Brewer or the Commission with an inventory of trees that would be protected from destruction. Without such an inventory, the Commission was left to guess as to whether 70% of the trees in the Greenbelt, Planting Strips, and perimeter buffering were retained as required by Section 23B.10.04. CARMEL 0000338. It was Petitioners' obligation to demonstrate compliance with Section 23B.10.04 and Petitioners failed to do so. Consequently, the Commission's denial of the Applications based on a violation of Section 23B.02.A.2.a and Section 23B.10.04 was appropriate. Moreover, even if Mr. Brewer had "approved" Petitioners' landscaping plans as Petitioners claim, it would not preclude the Commission from reviewing the Applications to ensure compliance with the Ordinance. Indiana law is clear that opinions from the staff for a plan commission or board of zoning appeals are non binding, meaning that the zoning body always has the authority to reject the staffs opinion if necessary to adhere to applicable zoning or subdivision control ordinances. See, e.g., Burrell v. Lake County Plan Comm'n, 624 N.E.2d 526, 528 n.1 (Ind. Ct. App. 1993) "We note, however, that a plan commission is not required to follow the staff findings and recommendations in all cases. Thus, Mr. Brewer could not have "approved" Petitioners' Applications; approval is reserved for the Commission itself based on compliance with the Ordinance. Because, as Mr. Brewer noted, Petitioners did not establish that 7 70% of the trees in the Greenbelt, Planting Strips, and perimeter buffering would be retained, Petitioners' Applications did not comply with Section 23B.10.04 and denial was appropriate. 2. §23B.02.A.2.h: The Proposal does not provide for adequate vehicle and bicycle parking facilities and internal site circulation, in that the proposed bicycle path is only five feet wide, and the parking facilities would accommodate only 155 vehicles when the Ordinance requires 169 to be accommodated. The central issue in this second Finding is whether the development plan depicts sufficient parking spaces to comply with the Ordinance. Petitioners claim that the drawing they submitted to the Commission "clearly shows in the site data table that the project required 155 spaces." Brief, p. 7. While it is true that Petitioners' table states 155 spaces are required, the Ordinance which, of course, controls says otherwise. The table that Petitioners constructed on page 7 of the Brief and the identical tables on their drawings all contain the same miscalculation. CARMEL 0001192, 0001243. Section 27.08 of the Ordinance clearly states that a "Conference /Civic Center" requires "[o]ne space for the largest shift of employees plus one (1) space per 150 sq. ft of floor area." CARMEL 0000490 (emphasis added). Petitioners' development plan, however, calculated parking spaces at a rate of one space for every 250 sq. ft. Brief, p. 7; CARMEL 0001192, 0001243. Thus, while Petitioners contend that 17 parking spaces are sufficient for their contemplated 4,240 square foot conference center, 29 spaces are actually needed based on the Ordinance requirement of one space per 150 sq. ft. of floor area. Consequently, Petitioners' development plan needs a minimum of 167 parking spaces, not 155, and the Commission was entirely correct to deny Petitioners' Applications based on the failure to adhere to the parking requirements in the Ordinance. 5 The Findings state that 169 parking spaces are required, but the total needed is actually 167. Regardless, there can be no dispute that the aggregate number of 155 spaces depicted on the Applications is inadequate per the Ordinance. 8 Petitioners cannot feign surprise that the Commission would demand adherence to the parking requirements in the Ordinance. In a report prepared by DOCS dated July 17, 2007, the Commission's staff asked Petitioners for "a parking chart with the breakdown of all the land used and parking required." CARMEL 0000722. Nearly a month later, on August 21, 2007, DOCS again advised Petitioners that additional parking spaces must be provided if the proposed motel will have a conference room or banquet hall. CARMEL 0000779. On November 1, 2007, counsel for Petitioners acknowledged that the site was "underparked," but stated that sufficient parking now existed via an underground parking garage. CARMEL 0000941. As demonstrated above, Petitioners were incorrect. Finally, during the public hearing on April 15, 2008, one of the Commission members specifically advised Petitioners with respect to parking that "the count is not correct." DVD of April 15 meeting (Exh. 187) at 13:30; CARMEL 0001291. Petitioners could have requested to table their Applications to address the parking issue (which would require changes to the overall design), but apparently elected not to. The Applications do not comply with the parking requirements set forth in the Ordinance and the Commission's denial on that basis is not arbitrary or capricious. 3. §23B.08: The Proposal does not orient the new building with its longest axis parallel to the adjoining street as required to create a sense of enclosure along the street, nor does the Proposal locate all parking to the rear or the side of the building as necessary to accomplish this purpose. Petitioners concede that the proposed Holiday Inn building does not comply with Section 23B.08 of the Ordinance in that it is not oriented with its longest axis parallel to U.S. Highway 31. In an effort to excuse their non compliance with the Ordinance, Petitioners claim that this 6 Petit had alternatives if design changes would have been unduly burdensome they could have requested a Plan Commission Waiver of the Ordinance's parking requirements, pursuant to Section 23B.12.B (CARMEL 0000338), or they could have requested a Variance of development standards from the Carmel Board of Zoning Appeals, pursuant to Section 30.04. CARMEL 0000519 -20. Petitioners elected not to pursue either of these alternatives. 9 issue was sprung on them in the Findings: "[U]ntil Finding 5 was written and included in the Findings filed May 30, 2009 there was never a mention in any record or by any City representative that the building was improperly oriented." Brief, p. 9. Petitioners are incorrect. During the hearing before the Commission on April 15, 2008, for example, one of the members of the Commission, Carol Schleif, specifically discussed Section 23B.08 and the failure of the building to be oriented parallel to U.S. Highway 31. CARMEL 0001291. Counsel and other representatives for Petitioners were present during the entire discussion. Petitioners' contention that Section 23B.08 was never raised until the Findings were issued on May 30, 2008 is belied by the record. Petitioners also seek to excuse their noncompliance with Section 23B.08 by pointing out that there are other motels along U.S. Highway 31 that are perpendicular, not parallel, to U.S. Highway 31. Petitioners' attempt to justify their own noncompliance with the Ordinance by citing to other examples of noncompliance is legally invalid. Petitioners did not argue before the Commission that they should not have to comply with Section 23B.08 nor did Petitioners present any evidence to support their contention that other motels are noncompliant. Consequently, the issue is waived and it is inappropriate to raise it on appeal because it was not raised before the Commission and is not part of the record. Nat'l Rural Util. Co -op. Fin. Corp. v. Pub. Serv. Comm'n of Indiana, 552 N.E.2d 23, 28 (Ind. 1990) (precluding an argument based 011 a particular statute because the party "waived the issue by not raising it before the commission Family Development, Ltd. v. Steuben County Waste Watchers, Inc., 749 N.E.2d 1243, 1255 (Ind. Ct. App. 2001) (finding waiver of an issue not raised during the administrative proceedings). Neither can Petitioners supplement the record with information that was not raised or discussed before the Commission. While a party may seek leave to supplement the record pursuant to Ind. Code 36 -7 -4 -1009, supplemental evidence is admissible only if it relates to topics discussed before the zoning board. Newman, 565 N.E.2d at 355 "When reviewing the action of a zoning board, the trial court may permit additional evidence so long 10 Moreover, even if the evidence of other motels was properly before this Court, it is no help to Petitioners because noncompliance with ordinance requirements by other parties is no defense to a noncompliant development plan application. Indiana courts have long held that "[e]ach zoning case must stand upon its own set of facts." Bd. of Zoning Appeals of Decatur v. Decatur, Ind. Co. of Jehovah's Witnesses, 117 N.E.2d 115, 118 (Ind. 1954). More recently, the Indiana Supreme Court reiterated this principle: We also believe past approval of "similarly situated" plats does not establish that the Commission's decision was reversible as "arbitrary and capricious." If the basis for denial is a failure to meet a requirement of the governing ordinance, albeit one previously enforced laxly or not at all, the inquiry is not whether there are prior inconsistent decisions, but rather whether there is substantial evidence supporting the agency's decision. Equicor, 758 N.E.2d at 38 -39 (emphasis added); Cf. Hills v. Area Plan Comm'n of Vermillion County, 416 N.E.2d 456, 462 (Ind. Ct. App. 1981) (stating, in the context of a rezoning, that "[t]he fact that a similar rezoning had been approved for another applicant in another area is irrelevant to an inquiry as to whether the Commissioners' action in this case was arbitrary Thus, the only thing that matters is that Petitioners' development plan violates Section 23B.08; whether or not other motels along U.S. Highway 31 also allegedly violate Section 23B.08 is of no consequence. 4. §23B.09.B: The Proposal does not use only permitted materials for the building exteriors, in that an uncertain percentage of EIFS (Exterior Insulation Finishing System) is utilized as an exterior finish. Section 23B.09(C) provides that building exteriors must be comprised of a minimum of three of the following: "stone, brick, architectural pre -cast (panels or detailing), architectural as it confines such evidence to subjects covered in the hearing before the zoning board. This topic is addressed in more detail in a Motion to Strike filed contemporaneously herewith. S Because Petitioners' reference to these other motels is inappropriate, Carmel will not specifically address in this brief the factual reasons Petitioners' argument is incorrect, but instead will reserve that argument for the Motion to Strike. 11 metal panels, glass, [or] ornamental metal." CARMEL 0000334. Conspicuously absent from this list is the exterior insulation finishing system commonly known as "EIFS," which occupied a portion of the proposed Holiday Inn. CARMEL 0001250. While Petitioners contend in their Brief (as they did at the April 15 hearing) that the EIFS was "completely removed from the exterior building material," the most recent drawings submitted to the Commission still depict the EIFS. Id. Petitioners failed to submit any updated drawings to the Commission in anticipation of the April 15 hearing (or otherwise amend the previous version), which left the Commission to reasonably conclude that the most recent drawings submitted by Petitioners were current. If they were not (as Petitioners now apparently contend), then it is hardly the Commission's fault for relying on what Petitioner has provided. Indeed, one of the most consternating aspects of Petitioners' Applications is that despite the passage of well over a year from the date of the initial application to the April 15, 2008 hearing, Petitioners still failed to provide the Commission with updated drawings and failed to remedy defects raised months earlier. During the April 15 hearing one Commission member expressly cited the lack of updated drawings as a basis for denial of the Applications. CARMEL 0001291 -92. The inescapable reality is that the most recent plans submitted by the Petitioners (and never amended) depicted EIFS on the exterior of the proposed motel, which violates Section 23B.09(C). CARMEL 0000334, 0001250. The Commission had no choice but to faithfully apply the Ordinance and deny the Applications, which it did. There is no basis for this Court to reverse the decision of the Commission. Petitioners claim that the Commission recently approved plans for Hotel Indigo, which contained a small amount of EIFS along the top of the proposed building. Brief, pp. 10 -11. For all the reasons stated in the Motion to Strike, Petitioners' reference to another application is improper and no further explanation is necessary. 12 5. §23B.10.04: The Proposal does not make a reasonable effort to protect and incorporate the existing stands of trees into the overall site design, in that fewer than 70% of all trees that are nine -inch DBH or larger and located within the perimeter buffering were preserved. As discussed above in section 1, Petitioners failed to provide the City Forester or the Commission with an inventory of trees that would be protected from destruction to ensure compliance with the 70% threshold in Section 23B.10.04. Moreover, Petitioners failed to resolve the inconsistencies that existed between the tree preservation plan and other documents submitted to the Commission despite repeated requests from the City Forester. CARMEL 0001211, 0001282. Petitioners claim that by overlaying the tree protection plan on the landscape plan, the "perimeter of the site is landscaped equal to or in excess of the Ordinance. Brief, pp. 12 -13. But there is no way to determine with any certainty that the 70% threshold in Section 23B.10.04 is satisfied by simply laying one plan on top of another and "eye- balling" the two plans. Petitioners could have submitted an inventory of trees that would be retained, but they did not. Petitioners could have responded to the City Forester's concerns about discrepancies in the plans, but they did not. Instead, Petitioners forced the Commission to engage in a subjective analysis and speculate whether Section 23B.10.04 was satisfied based on a review of overlaying one plan on another. But the Commission cannot approve an application based on speculation, especially when speculation would be wholly unnecessary had Petitioners simply provided proof of compliance with Section 23B.10.04. The Commission did not err by finding that Petitioners failed to establish compliance with Section 23B.10.04. 10 If a claim of extraordinary site design based on increased landscape treatment had been verifiable, it might have justified a request by Petitioners for a Plan Commission Waiver of the landscaping requirements of the Ordinance, pursuant to Sections 23B.02.C(4) and 23B.10.05. CARMEL 0000330, 0000338. Again, Petitioners elected not to pursue that alternative. 13 6. §23B.16: The Proposal does not include a roof on the accessory structure for refuse storage. Petitioners also failed to provide the Commission with a drawing that depicted a roof on the refuse storage area as required by the Ordinance. Specifically, Section 23B.16 states that if refuse storage occurs in an accessory building instead of the principal building, then the accessory building must be "[d]esigned to include a roof structure" and architecturally compatible with the principal building. CARMEL 0000340. Petitioners' depiction of the accessory building that would house the trash dumpster does not contain a roof. CARMEL 0001252. While Petitioners claim it is "unclear whether a solid roof is included" (Brief, p. 13), their own drawing shows metal cap flashing covering the top of the walls, not a roof. CARMEL 001252. In addition, Petitioners' contention that "a roof could easily be affixed" does not result in reversal of the Commission's decision. The question for this Court is whether the Applications as submitted to the Commission not as modified during briefing on appeal fully complied with all applicable provisions in the Ordinance such that the Commission's denial was arbitrary, capricious, or an abuse of discretion. The fact is that the accessory building for the trash dumpster does not comply with the plain language of Section 23B.16 of the Ordinance and, therefore, the Commission did not err by denying the Applications." In summary, the Commission's denial of the Applications is not arbitrary, capricious, an abuse of discretion, or unsupported by substantial evidence. In fact, based upon the submittals tendered by Petitioners, it is entirely correct. To prevail in this appeal, Petitioners must convince this Court that all eleven of the Commission's Findings constitute an abuse of discretion or are without evidentiary support. Wo 754 N.E.2d at 592. The six Findings highlighted herein 11 Even if Petitioners were correct and it was "unclear" whether a roof was contemplated, it would not result in reversal of the Commission's decision. Given the substantial deference that is owed to the Commission under the applicable standard of review, it cannot be said that the Cornmission acted arbitrarily and capriciously by determining that no roof structure existed when even the Petitioners are unsure if one was intended. 14 establish that Petitioners cannot satisfy their lofty burden. The Commission's denial of the Applications stems from a fatal combination of insufficient or conflicting information submitted to the Commission (despite well over a year to provide the required information) and outright noncompliance with portions of the Ordinance. The Commission, in good faith, could not approve a motel project that did not comply with the Ordinance. Indeed, the Commission has an obligation to disapprove any development plan that is noncompliant. CARMEL 0000329. The Commission faithfully adhered to its obligations and its unanimous decision should be affirmed. CONCLUSION For the foregoing reasons, Carmel respectfully requests that this Court deny Petitioners' Verified Petition and affirm the decision by the Commission. Respectfully submitted, k Alan S. Townsend, Atty. No. 16887 -49 Paul D. Vink, Atty. No. 23785 -32 BOSE MCKINNEY EVANS LLP 111 Monument Circle, Suite 2700 Indianapolis, Indiana 46204 Phone (317) 684 -5000 Fax (317) 684 -5173 Attorneys for Respondent, The City of Carmel /s/ John R. Molitor (by permission) John R. Molitor, Atty. No. 9313 -49 9465 Counselors Row, Suite 200 Indianapolis, IN 46240 Attorney for Respondent, The Carmel Plan Commission 15 CERTIFICATE OF SERVICE The undersigned certifies that a copy of the foregoing "Respondents' Joint Brief in Opposition to Petitioners' Brief on Writ of Certiorari" has been served upon the following counsel of record by first class, United States mail, postage prepaid, this 23 day of July, 2009: E. Davis Coots COOTS HENKE WHEELER, P.C. 255 East Carmel Drive Carmel, IN 46032 -2689 PJ L2&J Paul D. Vink 1448034_1 16