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HomeMy WebLinkAboutRespondents' Motion to Strike \odOJ 1vui, I- CON 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' MOTION TO STRIKE Respondents, The City of Carmel and The Carmel Plan Commission "the Commission (collectively, "Carmel by counsel, respectfully request that the Court strike Petitioners' reference to matters extraneous to the record and irrelevant to this case, and in support thereof, state: 1. On June 5, 2009, Petitioners filed a Brief on Writ of Certiorari ("Brief") in which Petitioners referenced on pages 9 and 10 other motels along U.S. Highway 31 that Petitioners claim are perpendicular to the highway and, therefore, in violation of Section 23B.08 of the U.S. Highway 31 Corridor Overlay Zone of the Carmel /Clay Zoning Ordinance "Ordinance Petitioners also attached as Exhibit D to their Brief a series of documents from the Commission relating to the approval of Hotel Indigo in March 2009 and presented argument based thereon on pages 9 and 10 of their Brief. These references to other motels along U.S. Highway 31 in the Brief and the documents contained in Exhibit D will be collectively referred to as the "Supplemental Motel Evidence" for purposes of this motion. The Supplemental Motel Evidence was intended to support Petitioners' claim that the Commission has acted in an arbitrary and capricious manner by allegedly treating Petitioners' ADLS and development plan applications differently than the Commission has treated similar applications from other applicants. 2. The Supplemental Motel Evidence should be stricken and given no legal weight by this Court for two, independently sufficient, reasons. First, Petitioners did not raise the Supplemental Motel Evidence or make any arguments based on the evidence before the Commission. 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 on 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). 3. Petitioners' failure to raise the Supplemental Motel Evidence at the hearing also precludes them from supplementing the record on appeal. 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 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. (emphasis added). Thus, Petitioners should not be permitted to supplement the record with the Supplemental Motel Evidence nor should Petitioners be permitted to argue that the Supplemental Motel Evidence excused them from complying with the provisions of the Ordinance. 4. Second, the Supplemental Motel Evidence should be stricken as irrelevant because noncompliance with ordinance requirements by other parties is no defense to a 2 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 Dev., Inc. v. Westfield- Washington Twp. Plan Comm 'n, 758 N.E.2d 34, 38 -39 (Ind. 2001) (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 5. In light of this authority, the only question for this Court to consider is whether Petitioners' ADLS and development plan applications complied with the Ordinance. Whether other similarly situated plans were approved or disapproved has no bearing on this Court's review of the Commission's decision in this case. Consequently, Petitioners reference to the Supplemental Motel Evidence should be stricken and given no legal weight in this appeal. 6. As indicated above, Carmel believes that the Supplemental Motel Evidence is improper and that this Court should refuse to consider it. However, to the extent the Court disagrees and permits the admission of the Supplemental Motel Evidence over Carmel's objection, Cannel reserves the right to respond to it with evidence of its own relating to the motels discussed by Petitioners. While Carmel does not believe it is proper to delve into the facts surrounding those other motels for all the reasons stated herein, Carmel notes that, if 3 necessary, it is prepared to demonstrate that Petitioners' Supplemental Motel Evidence is inaccurate. For example, Petitioners omit the critical fact that the orientation language was added to Section 23B.08 of the Ordinance in May 2000, meaning that only three of the ten motels referenced by Petitioners were approved after the orientation language was added and that all three of these motels comply with the Ordinance. Again, Carmel does not believe it is appropriate to present evidence relating to other applications for other motels, but if Petitioners are permitted to go beyond the evidentiary parameters established by Indiana law and introduce the Supplemental Motel Evidence, Carmel reserves the right to rebut that evidence. WHEREFORE, Carmel, by counsel, respectfully requests that this Court (1) strike Petitioners' argument on pages 9 and 10 of its Brief relating to ten other motels within the U.S. Highway 31 Overlay Zone; (2) strike Exhibit D to the Brief relating to the Hotel Indigo applications; and (3) for all other just and proper relief. Respectfully submitted, D (,),1 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 4 f CERTIFICATE OF SERVICE The undersigned certifies that a copy of the foregoing "Respondents' Motion to Strike" 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 CkA Paul D. Vink 1460647_1 5