HomeMy WebLinkAboutOrder on Respondents' Motion to Strike and on Petitioner's Second Amended verified Petition for Writ of Certiorari STATE OF INDIANA HAMILTON SUPERIOR COURT
SS: NO. 3
COUNTY OF HAMILTON CAUSE NO. 29D03- 0805 -MI -565
j 1 '4 1
MIDWEST HOSPITALITY GROUP, �z Jr
INC., and MOTELS OF CARMEL, LLP,
DEC 1 0 2009
Petitioners,
THE HON. DAVID 44,1
v. SPECIAL JUDGE NAMII:TSFMCOURT
THE CITY OF CARMEL and
THE CARMEL PLAN COMMISSION,
Respondents.
ORDER ON RESPONDENTS' MOTION TO STRIKE AND ON PETITIONER'S
SECOND AMENDED VERIFIED PETITION FOR WRIT OF CERTIORARI
This cause is before the Court on the Second Amended Verified Petition for Writ of
Certiorari, Writ of Mandamus, Declaratory Judgment, and Expedited Hearing "Second
Amended Petition filed by Petitioners Midwest Hospitality Group, Inc. and Motels of Carmel,
LLP on November 12, 2008. The issues on that petition closed with the filing of The City of
Carmel's Answer and Affirmative Defenses to Second Amended Verified Petition for Writ of
Certiorari "Canmel's Answer by Respondent The City of Carmel on November 26, 2008.
Petitioners' request for a writ of certiorari was granted by written order entered March 5, 2009.
On April 9, 2009, the City of Cannel complied with that order by filing documentary and
digitally recorded evidence from the hearing held before Respondent The Cannel Plan
Commission on April 15, 2008. On July 23, 2009, while the parties were briefing this case on the
merits, Respondents (hereafter collectively "Carmel filed their Motion to Strike to challenge
the brief on the merits filed by Midwest Hospitality and Motels of Carmel on June 5, 2009. On
August 7, 2009, this cause came for hearing, at which Midwest Hospitality and Motels of Cannel
Midwest Hospitality Group, Inc. et al. v. The City of Carmel et al.
Cause No. 29D03- 0805 -MI -565
Order on Motion to Strike and on Second Amended Verified Petition for Writ of Certiorari
appeared by representative and by counsel, and at which Cannel appeared by counsel. Having
considered the parties' pending requests for relief, the record of the underlying proceedings, and
the applicable law, and being duly advised, the Court now hereby enters the following Order:
Background and Procedural History
1. Midwest Hospitality Group, Inc. is an Indiana corporation that owns and operates
nine hotels in central .Indiana and one hotel in Illinois. See Record of Hearing (August 7, 2009 at
approximately 10:38 a.m.) (testimony of Sanjay Patel).
2. At some time before October 20, 2006, Motels of Carmel, LLP purchased land at
or near the intersection of 136 Street West and Pro -Med Lane "the property in Cannel for the
purpose of constructing a hotel. See id.; and Exhibit No. 2, Return to the Writ of Certiorari at 577
"Return to the Writ (Application for Architectural, Design, Lighting, and Signage dated
October 20, 2006 and listing "Sanjay Patel" as "Contract Purchaser of the Property
3. At all times relevant to this case, the property has been zoned in the classification
of "B -6 /Business District" as defined and described by the Carmel Zoning Ordinance. See
Paragraph No. 12, Second Amended Petition at 3 (so alleging); and Paragraph No. 12, Cannel's
Answer at 3 (so admitting).
4. The Zoning Ordinance specifies that the B -6 zoning classification "provide[s] a
location for light commercial and office uses adjacent to limited access highways." Exhibit No.
1, Return to the Writ at 197 (Chapter 17, Cannel Zoning Ordinance).
5. Under the Zoning Ordinance, the B -6 zoning classification permitted hotels as a
use of the property when Midwest Hospitality purchased the property. See Supplement to the
Return to the Writ of Certiorari at 5 (filed August 5, 2009) (colloquy on permitted uses of the
2
Midwest Hospitality Group, Inc. et al. v. The City of Carmel et al.
Cause No. 29D03- 0805 -MI -565
Order on Motion to Strike and on Second Amended Verified Petition for Writ of Certiorari
property, with Commissioner Dolman conceding that "what is written" in the Ordinance
permitted hotels on the property at the times relevant to this dispute).
6. Because of the property's proximity to U.S. Highway 31, it is also encumbered by
the requirements stated in the portion of the Zoning Ordinance entitled "U.S. Highway 31
Corridor Overlay Zone" "U.S. 31 Overlay Zone Accordingly, any development of the
property must satisfy the standards stated in §23B.02 of the Zoning Ordinance. See Paragraph
No. 13, Second Amended Petition at 3 -4 (so alleging); and Paragraph No. 13, Carmel's Answer
at 3 (so admitting); see also Exhibit No. 1, Return to the Writ at 327 -42 (U.S. 31 Overlay Zone).
7. In 1990, a prior owner of the property executed and recorded his "Commitments
Concerning the Use and Development of Real Estate" for the property. See Exhibit No. 4, Return
to the Writ at 582 -93. That instrument expressly listed thirty -nine specific uses that thereafter
"shall be prohibited on the [property]." See id. at 582. Those commitments did not exclude hotels
as a potential use. See id. at 593 (list of thirty -nine excluded uses).
8. The Zoning Ordinance requires that any proposed use of a B -6 property must first
be approved by the Plan Commission after it reviews both a Development Plan and an
application for Architectural Design, Exterior Lighting, Landscaping and Signage. See Exhibit
No. 1, Return to the Writ at 197 (Chapter 17, Carmel Zoning Ordinance).
9. To proceed with their proposed construction of a hotel on the property, Midwest
Hospitality Group, Inc. and Motels of Cannel, LLP (hereafter collectively "Midwest
Hospitality "filed a Development Plan Application and Petition for Architectural, Design,
Lighting, and Signage review with the City of Carmel on April 1, 2007, and June 22, 2007,
respectively" (hereafter collectively "the proposal Paragraph No. 6, Second Amended Petition
at 2; see also Paragraph No. 6, Carmel's Answer at 2 (admitting these allegations).
3
Midwest Hospitality Group, Inc. et al. v. The City of Carmel et al.
Cause No. 29D03- 0805 -MI -565
Order on. Motion to Strike and on Second Amended Verified Petition for Writ of Certiorari
10. Midwest Hospitality's proposal came for hearing before the Commission on
August 21, 2007. See Paragraph No. 6, Second Amended Petition at 2 (so alleging); Paragraph
No. 6, Carmel's Answer at 2 (so admitting); and Exhibit No. 61, Return to the Writ of Certiorari
at 781 -85 (relevant portion of the minutes from the Plan Commission's proceedings held August
21, 2007). On that date, the Commission found the proposal inadequate in several respects.
Accordingly, Midwest Hospitality agreed to table its proposal, see id. at 784, and the matter was
"referred to the [Commission's] Special Studies Committee for further review." Id. at 785.
11. From August 22, 2007 through the meeting of the Special Studies Committee held
April 1, 2008, Midwest Hospitality worked with various offices of the City of Carmel to improve
the proposal. On April 1, 2008, the Special Studies Committee voted to send the proposal back
"to the full Plan Commission with `No Recommendation.'" Exhibit No. 175, Return to the Writ
at 1230 (minutes of the April 1, 2008 meeting of the Special Studies Committee).
12. At the final administrative hearing on Midwest Hospitality's proposal, the
Commission again expressly found the proposal inadequate in several respects. See Exhibit No.
188, Return to the Writ at 1290 -92 (minutes of the April 15, 2008 meeting of the Plan
Commission). Despite the renewed expressions of disapproval for the proposal, Midwest
Hospitality at no time requested to table its proposal again or to take any other action that might
have cured the proposal's deficiencies. Agreeing with the Commission President's assessment
that the applications "had been at Committee long enough," the Plan Commission decided that it
"need[ed] to consider the issues and whether or not the proposal meets the criteria," id. at 1292,
instead of tabling the proposal for further review. By oral vote, the Commission concluded its
review of the proposal by unanimously approving a motion to deny it. See id.
4
Midwest Hospitality Group, Inc. et al. v. The City of Carmel et al.
Cause No. 29D03- 0805 -MI -565
Order on Motion to Strike and on Second Amended Verified Petition for Writ of Certiorari
13. On May 9, 2008, Midwest Hospitality sought judicial review of the Plan
Commission's denial of the proposal by filing the Verified Petition for Writ of Certiorari, Writ of
Mandamus, Declaratory Judgment, and Expedited Hearing in this cause.
14. On May 20, 2008, Cannel filed its Motion for Automatic Change of Judge. The
Hon. William J. Hughes granted that motion by written order entered May 22, 2008 and ordered
the parties to select a special judge from a panel of three other judges in this county.
15. On May 30, 2008, forty -five days after orally denying Midwest Hospitality's
proposal at the April 15, 2008 administrative hearing, the Plan Commission entered its written
Decision on Midwest Hospitality's proposal. See Exhibit No. 187, Return to Writ at 1284 -86.
That document stated the following eleven findings of fact, quoted here verbatim, to support the
decision to deny Midwest Hospitality's proposal:
a. §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.
b. §23B.02.A.2.c: The Proposal is not compatible with the surrounding land
uses, which uses have been developed without modifying the topography
and woodlands so drastically.
c. §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.
5
Midwest Hospitality Group, Inc. et al. v. The City of Carmel et al.
Cause No. 29D03- 0805 -MI -565
Order on Motion to Strike and on Second Amended Verified Petitio for Writ of Certiorari
d. §23B.02.A.2.n: The Proposal is not compatible with existing platted
residential uses, in that the building setbacks with accompanying
landscape plans are not sufficient to safeguard the privacy and quiet
enjoyment of the neighboring residents.
e. §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.
f. §23B.09.B [sic]: 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.
g. §23B.09.E(2): The Applicant's presentation of the Proposal did not
include all required architectural exhibits, in that no perspective color
renderings showing the proposed building from locations along U.S. 31
were provided to the Commission, and the building elevations that were
provided did not show how the parking structure would be ventilated nor
how openings to the parking structure would fit in with the rest of the
building.
h. §23B.10.02.C(1): The Proposal does not show a planting area equal to an
area measuring 25 feet in depth by the width of the front of the building
plus 20 feet out on both sides along the building facade that faces U.S. 31,
nor does it include as an alternative an innovative and original design for
the planting area as encouraged by §23B.10.C(5).
6
Midwest Hospitality Group, Inc. et al. v. The City of Carmel et al.
5, Cause No. 29D03- 0805 -MI -565
Order on Motion to Strike and on Second Amended Verified Petition for Writ of Certiorari
i. §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.
j. §23B.16: The Proposal does not include a roof on the accessory structure
for refuse storage.
k. §24.02.B.3.a: The Applicant's presentation of the Proposal did not include
a traffic study that provided a meaningful comparative analysis of present
volumes on streets bordering the development, in that the traffic data that
were provided were flawed due to the times of day studied (ignoring
traffic generated by Carmel High School students at school start/close
times) or dates of study (data having been compiled during Cannel High
School vacation periods).
Exhibit No. 187, Return to the Writ at 1285 -86 (emphases in original).
16. The undersigned judge qualified and assumed jurisdiction over this case by
written order entered June 12, 2008.
17. Midwest Hospitality filed the Second Amended Petition on November 12, 2008.
In that pleading, Midwest Hospitality asserted four claims for relief:
a. for a writ of certiorari requiring that "the entire record of the application
process [before the Commission] be sent to this court for review," id. at 4;
b. for an order "mandating the Commission to approve the [proposal]
id. at 5;
7
Midwest Hospitality Group, Inc. et al. v. The City of Carmel et al.
Cause No. 29D03- 0805 -MI -565
Order on Motion to Strike and on Second Amended Verified Petition for Writ of Certiorari
c. for an order declaring that the portions of the Zoning Ordinance and the
Plan Commission's Rules of Procedure permitting the Commission to file
its written findings of fact forty -five days after denying a proposal for
development are void for conflicting with state statute, id.; and
d. for "advanc[ing] Plaintiffs' [sic] petitions [sic] on the court's calendar to
be heard at the court's earliest convenience." Id. at 6.
Having already expressly granted Midwest Hospitality's request for a writ of certiorari, and
having already implicitly granted the request for an expedited hearing, the Court finds that the
requests for a writ of mandate and for a declaratory judgment are the only claims of Midwest
Hospitality's still requiring decision.
18. In the Second Amended Petition, Midwest Hospitality supported its request for a
writ of certiorari with three alleged grounds for relief:
a. The Plan Commission's decision to deny the proposal "is not supported by
any evidence in the record and is illegal in its entirety."
b. The Plan Commission's decision "is arbitrary and capricious in that the
evidence clearly shows that [Midwest Hospitality] satisfied the
Ordinance requirements for Development Plan and ADLS approval."
c. The Plan Commission's decision "is arbitrary and capricious in that the
Commission made no finding that the Development Plan did not comply
with the requirements of the Zoning Ordinance."
Paragraphs No. 15, No. 16, and No. 17 (respectively), Second Amended Petition at 4. Nowhere
does the Second Amended Petition allege that the Plan Commission's decision was "[1 contrary
to constitutional right, power, privilege, or immunity [2] in excess of statutory jurisdiction,
8
Midwest Hospitality Group, Inc. et al. v. The City of Carmel et al.
Cause No. 29D03- 0805 -MI -565
Order on Motion to Strike and on Second Amended Verified Petition for Writ of Certiorari
authority, or limitations, or short of statutory right [or 3] without observance of procedure
required by law Equicor Development, Inc. v. The Westfield Washington Twp. Plan
Comm'n, 758 N.E.2d 34, 36 (Ind. 2001) (citing I.C. 4- 21.5 -5 -14 as establishing "the scope of
court review of an administrative decision
19. In its claim for declaratory relief, Midwest Hospitality challenged Article IX of
the Plan Commission's Rules of Procedure; that Article permits the Commission to file its
written findings supporting a decision within forty -five days after issuing the decision. See
Exhibit J (Plan Commission's Rules of Procedure), Second Amended Petition. Specifically, the
Second Amended Petition alleges that the rule permitting the Commission forty -five days to
enter written findings should be declared void for conflicting with I.C. 36- 7- 4- 1003(b), which
requires a party aggrieved by a plan commission decision to file a petition for writ of certiorari
within thirty days after the challenged administrative decision. See Paragraphs No. 23 -24,
Second Amended Petition at 5 -6.
20. In the concluding section of the Second Amended Petition, a section called a
"Petition for Expedited Hearing," Midwest Hospitality alleged that the hearing on its claims in
this Court should be expedited because, in relevant part, Midwest Hospitality "purchased the
[property] in reliance on the then existing zoning regulations Paragraph No. 28, Second
Amended Petition at 6. Under the forgiving standards of notice pleading, see, e.g., State of
Indiana v. American Family Voices, Inc., 898 N.E.2d 293, 296 (Ind. 2008) "Though Indiana's
notice pleading rules do not require the complaint to state all elements of a cause of action
the plaintiff must still plead the operative facts necessary to set forth an actionable claim the
Court finds that this allegation can be reasonably construed, and therefore should be construed,
as putting Cannel on notice that Midwest Hospitality was basing this appeal partly on the
9
Midwest Hospitality Group, Inc. et al. v. The City of Carmel et al.
Cause No. 29D03- 0805 -MI -565
Order on Motion to Strike and on Second Amended Verified Petition for Writ of Certiorari
doctrine of estoppel. See, e.g., Equicor, 758 N.E.2d at 39 ("estoppel may be appropriate where
the party asserting estoppel has detrimentally relied on the governmental entity's affirmative
assertion or on its silence where there was a duty to speak and Terra Nova Dairy, LLC v.
Wabash Cty. Bd. of Zoning Appeals, 890 N.E.2d 98, 105 (Ind. Ct. App. 2008) (estoppel requires
proof that, among other things, the party claiming estoppel relied on the other party's conduct so
"as to change his position prejudicially
21. Cannel filed its Answer to the Second Amended Petition on November 26, 2008.
22. Following a pretrial conference held on March 5, 2009, Cannel timely filed the
Return to the Writ of Certiorari on April 9, 2009. Midwest Hospitality then timely filed its Brief
on Writ of Certiorari "Midwest Hospitality's Brief') on June 5, 2009. Carmel timely filed its
Brief in Opposition to Petitioners' Brief on Writ of Certiorari "Carmel's Brief') on July 23,
2009, also filing its Motion to Strike on the same date.
23. Midwest Hospitality devoted its brief to challenging the merits of the
Commission's eleven written findings supporting the decision to deny Midwest Hospitality's
proposal. That brief does note that the Commission filed its written findings "[fifteen] days after
the time prescribed by I.C. [36 -]7 -4 -1003 for the filing of a petition for writ of certiorari."
Midwest Hospitality's Brief at 5. Nothing in Midwest Hospitality's brief, however, even
arguably presses Midwest Hospitality's original claim for declaratory relief. Similarly, at no time
in the hearing held August 7, 2009 did Midwest Hospitality even arguably orally press its claim
for declaratory relief. See Record of Hearing (August 7, 2009 at approximately 9:21 a.m., 9:42
a.m., and 10:08 a.m.) (counsel for Midwest Hospitality objectively noting, but never challenging,
the Plan Commission's filing of its written Decision forty -five days after orally voting to deny
10
Midwest Hospitality Group, Inc. et al. v. The City of Carmel et al.
Cause No. 29D03- 0805 -MI -565
Order on Motion to Strike and on Second Amended Verified Petition for Writ of Certiorari
the proposal). Moreover, Carmel has done nothing to cure Midwest Hospitality's failure to
prosecute its claim for declaratory relief.
24. In particular on the merits, Midwest Hospitality's brief challenged the finding that
its proposed new building was perpendicular to, instead of parallel with, an adjoining street. See
Paragraph No. 15(e), supra at 6 (verbatim restatement of the relevant finding by the Plan
Commission); and Midwest Hospitality's Brief at 8 -10. Midwest Hospitality based its argument
on this issue on numerous purported facts that are not in evidence. See especially id. at 9 -10
(commentary and table on "ten hotels [currently] within the U.S. 31 Overlay Zone Further, in
challenging the finding that the proposed new facility would use impermissible building
materials, Midwest Hospitality supported its argument by attaching an exhibit purporting to
show that the Plan Commission recently permitted another petitioner to violate the same
building materials requirement that the Commission enforced to Midwest Hospitality's detriment
in this case. See id. at 10 -11; and Exhibit D (purported minutes from two meetings involving the
purported other petitioner's development application), Midwest Hospitality's Brief.
25. Nowhere in its brief did Midwest Hospitality argue that the Plan Commission's
decision was "[1] contrary to constitutional right, power, privilege, or immunity [2] in excess
of statutory jurisdiction, authority, or limitations, or short of statutory right [or 3] without
observance of procedure required by law Equicor, 758 N.E.2d at 36 (citing I.C. 4- 21.5 -5-
14 as establishing "the scope of court review of an administrative decision Instead, Midwest
Hospitality reiterated two of the three legal grounds for relief alleged in the Second Amended
Petition. See Midwest Hospitality's Brief at 5 (arguing only that the Plan Commission's decision
is infirm because it is not supported by substantial evidence and because the decision was
arbitrary and capricious for disregarding the proposal's alleged compliance with the applicable
11
Midwest Hospitality Group, Inc. et al. v The City of Carmel et al.
Cause No. 29D03- 0805 -MI -565
Order on Motion to Strike and on Second Amended Verified Petition for Writ of Certiorari
criteria). Several portions of Midwest Hospitality's brief can be read to suggest that Cannel
deprived Midwest Hospitality of its constitutional rights, that Carmel exceeded its statutory
authority, or that Carmel failed to follow a legally- required procedure. See, e.g., Midwest
Hospitality's Brief at 6 -7 (challenging a finding because the asserted reason "is totally devoid of
any standard to measure" the Commission's reasoning, an argument potentially implicating due
process); id. at 9 -10 (challenging a finding because of the Commission's purportedly disparate
treatment of the proposal in this case as compared to purported applications for other similarly
situated hotels, an argument potentially implicating federal equal protection or its Indiana
counterpart); and id. at 9 (challenging a finding, assertedly because, "until [it] was written and
included in the Findings filed May 30, 2008... there was never a mention in any record or by
any City representative that the [proposed] building was improperly oriented," an argument
potentially implicating due process and the caselaw requiring plan commissions to specify a
proposal's faults before voting on the proposal). Neither in its brief nor in its oral argument,
however, has Midwest Hospitality ever presented cogent argument that Cauuel deprived
Midwest Hospitality of constitutional rights, exceeded its statutory authority, or failed to follow a
legally- required procedure. More fundamentally, Midwest Hospitality did not plead these three
potential grounds for relief in the first instance. The Court will not cure these omissions by
framing constitutional arguments for Midwest Hospitality. See, e.g., Shehan v. Hogan, 818
N.E.2d 104, 109 (Ind. Ct. App. 2004) (reversing an order vacating an income withholding order
1 Midwest Hospitality's conclusory references at the hearing to these three statutory
grounds for relief neither preserved nor analyzed these potential grounds for relief. See, e.g.,
Record of Hearing (August 7, 2009 at approximately 9:19 a.m.) (invoking all five statutory
grounds as enumerated by the Indiana Supreme Court in Equicor); and id. (August 7, 2009 at
approximately 10:35 a.m.) (in closing his legal argument, counsel for Midwest Hospitality again
invoking all five statutory grounds as enumerated in Equicor).
12
Midwest Hospitality Group, Inc. et al. v. The City of Carmel et al.
Cause No. 29D03- 0805 -MI -565
Order on Motion to Strike and on Second Amended Verified Petition for Writ of Certiorari
partly because the trial judge found federal and state constitutional infirmities in the original
order "where [the party challenging the original order] did not argue any such violations
The Court also declines to frame arguments that Cannel exceeded its statutory authority or did
not follow legally- required procedure. See, e.g., Weissman v. Weener, 12 F.3d 84, 86 (7 Cir.
1993) "judges should be hesitant to wander too far astray —in their search for the correct legal
result —from the arguments presented to them by the parties and Hershinow v. Bonamarte,
735 F.2d 264, 266 (7 Cir. 1984) (declining to consider an argument briefed in a "perfunctory
and underdeveloped manner These three potential grounds for relief are therefore waived.
26. In its brief and at the hearing before this Court, Midwest Hospitality abandoned
its third alleged basis for relief —that the Commission made 110 affirmative "finding that the
Development Plan did not comply with the requirements of the Zoning Ordinance." Paragraph
No. 17, Second Amended Petition at 4. The Court therefore will do the same in this Order.
Carmel's Motion to Strike
27. In its Motion to Strike, Cannel asks the Court to strike from Midwest
Hospitality's brief what Carmel "collectively refer[s] to as the `Supplemental Motel Evidence'
for purposes of [its] motion." Id. at 1. According to Cannel, Midwest Hospitality's
"supplemental motel evidence" consists of (a) "references" in Midwest Hospitality's brief to ten
other hotels in the U.S. 31 Overlay Zone and (b) the documents presented as the brief's
supporting Exhibit D (purported minutes from proceedings before the Commission on another
purported hotelier's development application).
28. Carmel's request to strike should be denied in part and granted in part. The
request should be denied as to the "references" to ten other hotels because those references
cannot reasonably be construed as evidence. They might be arguments that are devoid of merit
13
Midwest Hospitality Group, Inc. et al. v. The City of Carmel et al.
Cause No. 29D03- 0805 -MI -565
Order on Motion to Strike and on Second Amended Verified Petition for Writ of Certiorari
for assuming facts not in evidence, or they might be subject to a finding of waiver for Midwest
Hospitality's failure to press such points even through unsubstantiated assertions before the Plan
Commission. Neither of these possible findings, however, justifies striking the "references" for
being improper evidence because they are only arguments, not evidence; and, as trial judges have
instructed lay jurors since time immemorial, "the arguments of counsel are not evidence."
Metropolitan Life Ins. Co. v. Alterovitz, 214 Ind. 186, 205 -06, 14 N.E.2d 570, 578 (1938).
Carmel's motion to strike should be granted, though, as to supporting Exhibit D attached to
Midwest Hospitality's brief because the development plan described in that exhibit was not
before the Plan Commission at the final hearing on Midwest Hospitality's proposal. The
documents contained in that supporting Exhibit D therefore cannot be proper supplemental
evidence in this proceeding and should be stricken. See I.C. 36 -7 -4 -1009 (the trial court "may
take evidence to supplement the evidence and facts disclosed by the return to the writ of
certiorari, but the review may not be by trial de novo see also, e.g., Metro. Bd. of Zoning
Appeals of Marion Cty. v. Gateway Corp., 256 Ind. 326, 337, 268 N.E.2d 736, 743 (1971); and
Sexton v. Jackson Cty. Bd. of Zoning Appeals, 884 N.E.2d 889, 895 (Ind. Ct. App. 2008).
Standard of Review for Midwest Hospitality's
Challenge to the Plan Commission's Decision
29. Judicial review of a plan commission's denial of a development plan is narrow
and deferential. Indiana statutory law governs this review:
Indiana Code section 4- 21.5 -5 -14 prescribes the scope of court
review of an administrative decision. That section provides that
a court may provide relief only if the agency action 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
14
Midwest Hospitality Group, Inc. et al. v. The City of Carmel et al.
Cause No. 29D03- 0805 -MI -565
Order on Motion to Strike and on Second Amended Verified Petition for Writ of Certiorari
substantial evidence. See also Dep't of Natural Res. v. Ind. Coal
Council, 542 N.E.2d 1000, 1007 (Ind. 1989) "An
administrative act is arbitrary and capricious only where it is
willful and unreasonable, without consideration and in disregard
of the facts and circumstances in the case, or without some basis
which would lead a reasonable and honest person to the same
conclusion. Section 4- 21.5- 5 -14(a) further provides that "the
burden of demonstrating the invalidity of the agency action is
on the party asserting invalidity." In reviewing an
administrative decision, a court is not to try the facts de novo or
substitute its own judgment for that of the agency.
In the absence of a claim that the decision was the product of
constitutional violation, the test of arbitrary and capricious
action is whether there is no reasonable basis for the action.
Equicor, 758 N.E.2d at 36 -37 (citations omitted). As the standard applied in Equicor requires,
the Plan Commission's decision in this case must be sustained if the record contains substantial
evidence justifying the decision.
[I]n the context of zoning proceedings, evidence is substantial
"if it is more than a scintilla and less than a preponderance."
Substantial evidence is such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.
Additionally, it must be more than speculation and conjecture.
Rice v. Allen CO). Plan Comm'n, 852 N.E.2d 591, 597 (Ind. Ct. App. 2006) (citations omitted),
trans. denied. The decision to deny Midwest Hospitality's proposal is presumed correct, and it
"will be sustained if it was correct on any grounds stated for disapproval of the [proposal]."
Wolff v. Mooresville Plan Comm'n, 754 N.E.2d 589, 592 (Ind. Ct. App. 2001) (emphasis added).
Midwest Hospitality's Claim for Declaratory Relief
30. Since raising its claim for declaratory relief in the Second Amended Petition,
Midwest Hospitality has not favored the Court with any analysis showing why Carmel's rule
permitting the Plan Commission to file written findings forty -five days after it enters a decision
15
Midwest Hospitality Group, Inc. et al. v. The City of Carmel et al.
Cause No. 29D03- 0805 -MI -565
Order on Motion to Strike and on Second Amended Verified Petition for Writ of Certiorari
on a development plan should be invalidated. The claim is therefore waived and should be
denied.' Waiver notwithstanding, the claim should be denied on its merits because, as this case
demonstrates, a party aggrieved by a decision of Camel's Plan Commission may simply amend
its pleading to account for written findings the Commission enters after a claim for judicial
review is timely filed and thereby preserved. To whatever extent Carrnel's rule conflicts with
I.C. 36- 7- 4- 1003(b), the rule causes, not a cognizable legal injury, but only a de minimis
inconvenience easily remedied by motion pursuant to Trial Rule 15. Midwest Hospitality's claim
for declaratory relief therefore should be denied even if it is not waived.
Midwest Hospitality's Claim for a Writ of Mandate
31. The Second Amended Petition requests an order "mandating the Commission to
approve the [proposal] and for all other proper relief." Second Amended Petition at 5. At the
hearing held before this Court on August 7, 2009, Midwest Hospitality also orally requested the
alternative remedy of "order[ing] the Plan Commission to modify its decision to address the
various items that have been raised in the findings of fact that were submitted by the Plan
Commission forty -five days after it entered its decision on April 15, 2008." Record of Hearing
(August 7, 2009 at approximately 9:21 a.m.) (opening statement by counsel for Midwest
Hospitality). In either formulation, Midwest Hospitality's claim for a writ of mandate should be
denied because this record supports at least three of the Commission's written findings.
32. Midwest Hospitality's request for a writ of mandate should be denied, first,
because the record contains substantial evidence that the proposal projected fewer parking spaces
Also worth noting is that Midwest Hospitality based its amended claim for declaratory
relief on a misstatement of the record. See Paragraph No. 21, Second Amended Petition at 5 (in a
document filed November 12, 2008, using the present perfect tense to allege that "no findings of
fact have been submitted to support the Plan Commission's decision," when in fact, at that time,
those findings had been filed more than five months earlier on May 30, 2008).
16
Midwest Hospitality Group, Inc. et al. v. The City of Carmel et al.
Cause No. 29D03- 0805 -MI -565
Order on Motion to Strike and on Second Amended Verified Petition for Writ of Certiorari
than Carmel's Zoning Ordinance requires. See Paragraph No. 15(c), supra at 6 (verbatim
restatement of the relevant finding by the Plan Commission). Under §23B.02.A.2.h of the Zoning
Ordinance, the proposal in this case needed to show that it complied with Carmel's standards for
"[v]ehicle and bicycle parking facilities and internal site circulation Exhibit No. 1, Return
to the Writ at 329. Further, under §27.08 of the Zoning Ordinance, the proposal in this case
needed to show that Midwest Hospitality was accounting for the conference center in its hotel by
planning to provide "[o]ne [parking] space for the largest shift of employees plus one (1) space
per 150 sq. ft. of floor area." Exhibit No. 1, Return to the Writ at 490. Midwest Hospitality's
calculations of the number of required parking spaces, however, have consistently assumed that
the Ordinance requires only one space per 250 square feet of a planned conference center. See
Exhibit No. 176, Return to the Writ at 1243 (packet provided to the Plan Commission on April 8,
2008); and Midwest Hospitality's Brief at 7 (citing its April 8, 2008 packet of materials and still
expressly asserting, in a table, that the planned conference center required one parking space per
250 square feet of the center's planned floor space). The parties agree that Midwest Hospitality's
planned conference area would have a floor space of 4,240 square feet, and the Court adopts that
agreement as a fact in this Order. The record thus unequivocally shows that Midwest Hospitality
has consistently assumed that it needs only seventeen parking spaces for its conference center
when, in fact, the Zoning Ordinance requires twenty -nine parking spaces for the conference
center. In this way, the proposal plainly fails to comply with the Ordinance. The interactions
between the property owner and the plan commission in this case lasted at least from October
3 Midwest Hospitality frames this issue solely as a question of substantial evidence. See
Midwest Hospitality's Brief at 8 "Because of the erroneous factual conclusions contained in the
Finding[,] without any evidence sustaining the Finding, such Finding is simply in error. This
Order thus decides this question without considering whether the Commission's finding on the
number of parking spaces is arbitrary and capricious.
17
Midwest Hospitality Group, Inc. et al. v. The City of Carmel et al.
Cause No. 29D03- 0805 -MI -565
Order on Motion to Strike and on Second Amended Verified Petition for Writ of Certiorari
2006 to April 2008. See Exhibit No. 2, Return to the Writ at 577 (October 20, 2006 filing by
Midwest Hospitality). Midwest Hospitality therefore had ample opportunity to follow "the well
established principle that [p]roperty owners are charged with knowledge of ordinances that
affect their property."' Terra Nova Daily, 890 N.E.2d at 105. That Midwest Hospitality failed to
know the parking requirements of the Ordinance cannot be charged to Carmel.
33. Moreover, the record contradicts Midwest Hospitality's efforts to avoid the
consequences of its clear failure to comply with the Ordinance's required number of parking
spaces. In neither the Second Amended Petition nor its brief did Midwest Hospitality ever assert
or develop an argument that it was surprised by the Commission's finding that the proposal
failed to comply with Carmel's requirements for parking. Without objection, though, Midwest
Hospitality did raise this issue orally at the hearing by arguing that "this [deficiency of the
proposal] was never raised," Record of Hearing (August 7, 2009 at approximately 9:57 a.m.),
and that one Commissioner at the April 15, 2008 hearing, Commissioner Schleif, observed only
that "'I think your parking is wrong,' but there's no specificity as to how it's wrong Id.
(August 7, 2009 at approximately 10:00 a.m.). The record unequivocally shows Commissioner
Schleif stating, on the question of parking spaces, "The count's not correct." Exhibit No. 187 (at
13:30 minutes), Return to the Writ (DVD recording of the April 15, 2008 hearing before the Plan
Commission). The record also unequivocally shows that she specifically identified a mistake in
"conference area parking numbers," Supplement to the Return to the Writ of Certiorari at 7, as
rendering the proposal inadequate. Midwest Hospitality therefore knew that the Commission
found the proposal's parking inadequate. It knew why the Commission found the proposal's
parking inadequate. And it had this knowledge before the Commission voted to deny the
proposal. At the April 15, 2008 hearing before the Commission, however, Midwest Hospitality
18
Midwest Hospitality Group, Inc. et al. v. The City of Carmel et al.
Cause No. 29D03- 0805 -MI -565
Order on Motion to Strike and on Second Amended Verified Petition for Writ of Certiorari
failed to request time in which it could try to cure this inadequacy in the proposal. A finding that
Midwest Hospitality waived objection to this deficiency in its proposal is thus entirely
appropriate. This case therefore fundamentally differs from a case such as Equicor, in which the
Indiana Supreme Court found a plan commission estopped from denying a development plan
when the plan commission there (a) raised a specific parking related objection only "after the
vote," 758 N.E.2d at 36, and (b) raised only "a formal defect" without "assert[ing] that the
project in fact ha[d] less parking than required." Id. Here, the Plan Commission raised its
parking related objection before the oral vote to deny the proposal, and it raised a substantive
defect in the proposal's failure to project the minimum number of parking spaces required by the
Zoning Ordinance. This issue provides Midwest Hospitality no basis for a writ of mandate.
34. Midwest Hospitality's request for a writ of mandate should be denied, second,
because the proposal fails to represent a new building that has its "longest axis parallel to the
adjoining highway or street to create a sense of enclosure along the streets Exhibit No. 1,
Return to the Writ at 332 §23B.08, Cannel Zoning Ordinance); see also Paragraph No. 15(e),
supra at 6 (verbatim restatement of the relevant finding by the Plan Commission). Midwest
Hospitality implicitly concedes that the relevant finding by the Commission on this issue is
correct. See Midwest Hospitality's Brief at 9 -10 (challenging the finding but never simply stating
that the proposal does comply with §23B.08 of the Zoning Ordinance); and Record of Hearing
(August 7, 2009 at approximately 10:03 -10:09 a.m.) (same). This record shows that Midwest
Hospitality's implicit concession is correct: the planned hotel's longest axis is not parallel to
either of the two streets immediately adjoining the property, Smokey Row Road and Pro -Med
Lane. Contrary to Midwest Hospitality's argument, see Midwest Hospitality's Brief at 9 "no
record exists to support the current Finding the record does support the relevant finding.
19
Midwest Hospitality Group, Inc. et al. v. The City of Carmel et al.
Cause No. 29D03- 0805 -MI -565
Order on Motion to Strike and on Second Amended Verified Petition for Writ of Certiorari
35. Against the clearly sufficient record on this issue, Midwest Hospitality argues
only that it need not comply with the longest- axis parallel requirement for reasons that amount to
a claim that Carmel's conduct in denying the proposal is "otherwise not in accordance with law."
Equicor, 758 N.E.2d at 36 (stating this ground for relief as an alternative form of "arbitrary and
capricious" administrative action). Neither of Midwest Hospitality's asserted grounds, however,
sustains that position. Its first asserted ground is that the Plan Commission never raised the
longest- axis parallel requirement "until [the relevant] Finding was written and included in the
Findings filed May 30, 2008." Midwest Hospitality's Brief at 9. The record contradicts this
assertion. See Exhibit No. 188, Return to the Writ at 1291 (minutes from the April 15, 2008
hearing showing Commissioner Schleif, before the Commission voted to deny the proposal,
expressly invoking §23B.08 of the Zoning Ordinance in discussing "the intent to orient the
buildings in the Overlay toward the highway Without presenting any cogent argument,
Midwest Hospitality also implicitly asserts that it need not comply with the longest- axis parallel
requirement because several other hotels in the U.S. 31 Overlay Zone allegedly already do not
comply with that requirement. See Midwest Hospitality's Brief at 9 -10. No evidence or argument
on such matters was ever presented to the Plan Commission in this case, and this second
argument is therefore either waived or of no moment because it is based on facts not in evidence.
Either way, the argument does nothing to justify Midwest Hospitality's failure to comply with
the longest- axis parallel requirement. Furthermore, even if such matters had been raised before
the Plan Commission, they would not have required approval of the proposal anyway because
"past approval of `similarly situated' [plans] does not establish that the Commission's decision
was reversible as `arbitrary and capricious' [since] past weak enforcement does not invalidate
an otherwise valid requirement." Equicor, 758 N.E.2d at 38. Cannel therefore had a substantial
20
Midwest Hospitality Group, Inc. et al. v. The City of Cannel et al.
Cause No. 29D03- 0805 -MI -565
Order on Motion to Strike and on Second Amended Verified Petition for Writ of Certiorari
basis, and its action was not arbitrary and capricious, when it used Midwest Hospitality's failure
to comply with the longest- axis parallel requirement as a reason to deny the proposal.
36. Finally, third, Midwest Hospitality's request for a writ of mandate should be
denied because "the most recent drawings submitted to the [Plan] Commission still depict,"
Carmel's Brief at 12, an unacceptable material planned for use on various parts of the exterior of
the proposed building. See also Paragraph No. 15(f), supra at 6 (verbatim restatement of the
relevant finding by the Plan Commission). Counsel for Midwest Hospitality unequivocally
conceded this deficiency at the hearing before this Court. See Record of Hearing (August 7, 2009
at approximately 10:11 a.m.). Carmel's Zoning Ordinance prescribes a list of acceptable building
materials that must be used to construct new buildings in the U.S. 31 Overlay Zone:
A minimum of three materials shall be used for building
exteriors, from the following list: stone, brick, architectural pre-
cast (panels or detailing), architectural metal panels, glass,
ornamental metal.
Exhibit No. 1, Return to the Writ at 334 §23B.09.C, Carmel Zoning Ordinance). More precisely,
then, Midwest Hospitality concedes that its most recent drawings supporting the proposal show a
more- than nominal presence of a building material not approved by §23B.09.C. That material is
called "exterior insulation finishing system" "EIFS See Exhibit No. 147, Return to the Writ at
1094 (Colored Building Elevation showing significant amounts of EIFS on the planned
building). To counter the proposal's clear deficiency in this respect, Midwest Hospitality argues
that the EIFS "was completely removed from the exterior building material as contained in the
Plan Commission Minutes and DVD of the April 15, 2008, Meeting Midwest Hospitality's
Brief at 10. The record, however, demonstrates just the opposite: the most recent drawings
unmistakably still contain EIFS. Midwest Hospitality apparently tries to use as evidence its
21
Midwest Hospitality Group, Inc. et al. v. The City of Carmel et al.
Cause No. 29D03- 0805 -MI -565
Order on Motion to Strike and on Second Amended Verified Petition for Writ of Certiorari
counsel's oral assurance to the Plan Commission that "EIFS was taken out and is no longer an
issue." Exhibit No. 188, Return to the Writ at 1291 (minutes from the April 15, 2008 hearing
showing a colloquy between Commissioner Schleif and counsel for Midwest Hospitality on the
continuing presence of "EFIS [sic] material on the buildings [sic] Midwest Hospitality's most
recent drawings contradict this assertion, but Midwest Hospitality also did not request additional
time to take curative action on this deficiency before the Commission voted on the proposal.
Midwest Hospitality contends further, however, that the finding on building materials in this case
is arbitrary and capricious because, the company asserts, the Plan Commission recently approved
a development plan that contained EIFS for a similarly situated hotel. See Midwest Hospitality's
Brief at 10 -11. This argument, however, fails for lack of record evidence. See Paragraph No. 28,
supra at 13 -14 (concluding that Carmel's request to strike the proffered evidence supporting this
argument should be granted). Accordingly, this record shows that the Plan Commission had a
substantial basis, and that its action was not arbitrary and capricious, when it denied the proposal
in part because the proposal included an unacceptable building material on the most recent
drawings depicting the planned hotel. On this basis, too, Midwest Hospitality's request for a writ
of mandate should be denied.
37. Moreover, this record does not support the requisite findings for a conclusion that
Carmel should be estopped from denying Midwest Hospitality's proposal. The Second Amended
Petition can be read as alleging the operative facts for a claim of what the Court will assume
Midwest Hospitality intends to be equitable estoppel. See Paragraph No. 27, Second Amended
Petition at 6. Midwest Hospitality, however, did not argue equitable estoppel in its brief. Instead,
at the hearing before this Court, after expressly invoking only "estoppel," Midwest Hospitality
presented evidence on "the financial harm caused by the action of the Plan Corrunission once it
22
Midwest Hospitality Group, Inc. et al. v. The City of Carmel et al.
Cause No. 29D03- 0805 -MI -565
Order on Motion to Strike and on Second Amended Verified Petition for Writ of Certiorari
was established that [the property] was suitable for hotel construction Record of Hearing
(August 7, 2009 at approximately 10:42 a.m.); see also id. (August 7, 2009 at approximately
10:43 -10:44 a.m.) (representative of Midwest Hospitality testifying to several categories of
expenses incurred to complete and prosecute the proposal). Even with evidence on Midwest
Hospitality's financial expenditures, the issue of estoppel is subject to a finding of waiver
because Midwest Hospitality has failed to present cogent argument showing how the facts of this
case allegedly justify estoppel. Accordingly, the request for estoppel should be denied.
38. Waiver notwithstanding, Cannel should not be estopped from denying the
proposal in this case because this record affirmatively negates a finding of equitable estoppel:
As a general matter, government entities are not subject to
equitable estoppel.... However, [the Indiana Supreme] Court
has held that in certain situations application of estoppel of [sic]
government entities is appropriate. Specifically, estoppel
may be appropriate where the party asserting estoppel has
detrimentally relied on the governmental entity's affirmative
assertion or on its silence where there was a duty to speak.
Equicor, 758 N.E.2d at 39 (citations omitted). More precisely, a claim of equitable estoppel
requires record evidence on three essential elements:
The party claiming equitable estoppel must show its (1) lack of
knowledge and of the means of knowledge as to the facts in
question, (2) reliance upon the conduct of the party [to be]
estopped, and (3) action based thereon of such a character as to
change his position prejudicially.
City of Crown Point v. Lake County, 510 N.E.2d 684, 687 (Ind. 1987) (internal quotation marks
omitted). The claim of estoppel in this case fails because Midwest Hospitality's proof does not
satisfy the knowledge and reliance elements of this standard.
39. Cannel thus should not be estopped partly because Midwest Hospitality had
"knowledge and the means of knowledge as to the facts in question City of Crown
23
Midwest Hospitality Group, Inc. et al. v. The City of Carmel et al.
Cause No. 29D03- 0805 -MI -565
Order on Motion to Strike and on Second Amended Verified Petition for Writ of Certiorari
Point, 510 N.E.2d at 687. In this case, the most relevant fact in question was Cannel's Zoning
Ordinance, the requirements of which Midwest Hospitality had a duty to know. See, e.g.,
Hannon v. Metropolitan Development Comm 'n of Marion Cty., 685 N.E.2d 1075, 1081 (Ind. Ct.
App. 1997). Midwest Hospitality's estoppel argument seems to depend, in essence, on an
overstatement of the rights granted to the company by the Zoning Ordinance. In the Second
Amended Petition, for example, Midwest Hospitality alleges that the Commission's denial of the
proposal "deprive[d] [Midwest Hospitality] of their rights to develop real estate granted by the
Zoning Ordinance." Paragraph No. 15, Second Amended Petition at 4. Similarly, according to
the evidence at the hearing before this Court, Midwest Hospitality bases its claim of detrimental
reliance on nothing more than the asserted fact that, before Midwest Hospitality bought the
property, two Caiuiel representatives infoinied the company "that the property was zoned for
the proposed hotel." Record of Hearing (August 7, 2009 at approximately 10:39 a.m.). Midwest
Hospitality thus seems to assume that its proposal- related expenditures made after Carmel
representatives merely confirmed that the property's zoning permitted hotels now estops Carmel
from denying the proposal. As this Court reads the Zoning Ordinance, however, the Ordinance
granted Midwest Hospitality, not an accrued, immediately actionable "right to develop real
estate," but rather only the right to petition the Plan Commission for its approval of planned
developments of the property. See Exhibit No. 1, Return to the Writ at 197 (§17.00.02.A and
§17.00.02.B, Cannel Zoning Ordinance) (descriptions of applications required for development
projects). Any expenditures made to exercise that inherently contingent right were therefore
made at Midwest Hospitality's own peril because the company was fully aware that the Plan
Commission might not approve its proposal: the filing of both parts of the proposal in this case
indisputably shows that Midwest Hospitality had actual knowledge of the contingent nature of its
24
Midwest Hospitality Group, Inc. et al. v. The City of Carmel et al.
Cause No. 29D03- 0805 -MI -565
Order on Motion to Strike and on Second Amended Verified Petition for Writ of Certiorari
efforts. See, e.g., Hannon, 685 N.E.2d at 1081 (rejecting a claim of equitable estoppel because
the claimant knew or should have known the requirements of a zoning ordinance).
40. Furthermore, even taking Midwest Hospitality's new evidence on expenses at
face value, the company has shown "no sufficient action by the Commission to induce [the
company's] reliance for the purpose of equitable estoppel." Hannon, 685 N.E.2d at 1081. To find
Carmel estopped in this case, the City's "conduct must [have] be[en] of such character as to
prevent inquiry or to elude investigation or to mislead and hinder." Id. Here, Cannel's conduct in
merely confirming that the Zoning Ordinance permitted hotels (that is, approved hotels) on the
property does not satisfy this standard. Carmel's conduct did not "mislead and hinder it simply
accurately conveyed information on zoning for the property information that Midwest
Hospitality was charged with knowing anyway. Cannel's conduct also did not "prevent inquiry"
or "elude investigation Midwest Hospitality obviously was able to discharge its own duty to
review the Zoning Ordinance and then ask the Commission to approve the planned development
in accordance with the requirements for a B -6 /Business District property under Chapter 17 of the
Ordinance. To support a finding of detrimental reliance in such cases, the governmental entity
must first affirmatively approve a specific project in some objectively identifiable way. In this
4 See, e.g., Advisory Bd. of Zoning Appeals of City of Hammond v. Foundation for
Comprehensive Mental Health, Inc., 497 N.E.2d 1089 (Ind. Ct. App. 1986) (affirming a finding
of equitable estoppel where the zoning board granted an improvement location permit and two
building permits, the company spent more than $151,000 in reliance on the permits, and the
zoning board then denied a request for a certificate of occupancy). See also, e.g., Mattson v. City
of Chicago, 411 N.E.2d 1002 (Ill. Ct. App. 1980) (finding estoppel where the planned
development was undertaken in reliance on a demolition permit and on circumstances in which
the issuance of a building permit was only a ministerial act); City of Peru v. Ouerciagrossa, 392
N.E.2d 778 (Ill. Ct. App. 1979) (finding estoppel where the developer incurred expenses in
reliance on an erroneously- granted building permit); and Petrosky v. Zoning Hearing Bd. of the
Twp. of Upper Chichester, 402 A.2d 1385 (Pa. 1978) (finding estoppel where the developer
25
Midwest Hospitality Group, Inc. et al. v. The City of Carmel et al.
Cause No. 29D03- 0805 -MI -565
Order on Motion to Strike and on Second Amended Verified Petition for Writ of Certiorari
case, however, no entity exercising decisional authority vested in the City of Cannel —such as
the Plan Commission —ever approved the proposal or even issued ancillary pen authorizing
Midwest Hospitality to begin any portion of its planned development. The Court therefore can
only conclude (a) that none of the expenses recited by Midwest Hospitality at the hearing before
this Court were undertaken in reliance on any specific, affirmative pennission granted by
Cannel, and (b) that none of the expenses were incurred for developing, as opposed to simply
purchasing, the property. For this reason, too, Cannel should not be estopped from denying the
proposal. See, e.g., Hannon, 685 N.E.2d at 1081 n.9 (denying a claim of estoppel in part because
the development commission's passive acceptance of property tax payments "is not equivalent to
actually granting a special exception to the non- complying property ");(emphasis added).
IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED that:
1. The Motion to Strike filed jointly on July 23, 2009 by Respondents The City of
Carmel is GRANTED IN PART and DENIED IN PART. The motion is GRANTED as to
supporting Exhibit D attached to the Brief on Writ of Certiorari filed June 5, 2009 by Petitioners
Midwest Hospitality, Inc. and Motels of Cannel, LLP. Accordingly, that exhibit is hereby
STRICKEN from the record of these proceedings. Respondents' Motion to Strike is DENIED as
to the "references" to ten other hotels allegedly near the property at issue in this litigation, which
"references" appear on pages 9 and 10 of the Petitioners' Brief on Writ of Certiorari filed June 5,
2008 by Petitioners Midwest Hospitality, Inc. and Motels of Cannel, LLP.
2. The claim for declaratory relief alleged in the Second Amended Verified Petition
for Writ of Certiorari, Writ of Mandamus, Declaratory Judgment, and Expedited Hearing filed
acquired a property only after the municipality issued permits, and the developer then incurred
expenses to construct the planned development).
26
Midwest Hospitality Group, Inc. et al. v. The City of Carmel et al.
Cause No. 29D03- 0805 -MI -565
Order on Motion to Strike and on Second Amended Verified Petition for Writ of Certiorari
November 12, 2008 by Petitioners Midwest Hospitality, Inc. and Motels of Cannel, LLP is
DENIED. Accordingly, judgment is hereby entered against Petitioners Midwest Hospitality, Inc.
and Motels of Cannel, LLP, and in favor of Respondents The City of Carmel and The Carmel
Plan Commission, on Petitioners' claim for declaratory relief.
3. The claim for a writ of mandate alleged in the Second Amended Verified Petition
for Writ of Certiorari, Writ of Mandamus, Declaratory Judgment, and Expedited Hearing filed
November 12, 2008 by Petitioners Midwest Hospitality, Inc. and Motels of Carmel, LLP is
DENIED. Accordingly, judgment is hereby entered against Petitioners Midwest Hospitality, Inc.
and Motels of Carmel, LLP, and in favor of Respondents The City of Carmel and The Carmel
Plan Commission, on Petitioners' claim for a writ of mandate.
SO ORDERED THIS 9 DAY OF DECEMBER, 2009.
/2/
David K. Najjar, Specia ∎dge
Copies to:
E. Davis Coots
John R. Molitor
Paul D. Vink
27