HomeMy WebLinkAboutRespondents' Joint Brief in Opposition to Petitioners' Brief on Writ of Certiorari 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 Carmel 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)