HomeMy WebLinkAboutPetitioners' Brief on Writ of CertiorariCoots
Henke
TWheeler
ATTORNEYS AT LAW. 'P
E. DAVIS COOTS
JAMES K. WHEELER
JAY CURTS
JAMES D. CRUM
JEFFREY S. ZIPES
ELIZABETH I. VAN TASSEL
MATYHEw L. HINKLE
DANIEL E. CooTs
BRANDI A. GIBSON
JILLIANC. KEATING
BLAKE N. SHELBY,
CERTIFIED MEDIATOR
OF COUNSEL:
STEVEN H. HENKE
255 East Carmel Drive
Carmel, Indiana 46032-2689
317 844 -4693
FAX: 317- 573 -5385
www.chwiaw.com
Via Certified Mail,
Return Receipt Requested
Clerk, Hamilton Superior Court #3
106 Government Judicial Center
One Hamilton County Square
Noblesville, IN 46060
Dear Clerk:
June 5, 2009
RE: Midwest Hospitality Group, Inc. and Motels of Carmel, LLP
v. City of Carmel
Cause No. 29D03- 0805 -MI -565
Our File No. 17814
Enclosed please find for filing the original and one copy of Petitioners' Brief
on Writ of Certiorari.
Please note that this pleading is to be filed pursuant to T.R. 5(F)(3) and,
therefore, should be file- stamped as of the date of this mailing June 5, 2009.
I have enclosed an envelope for your convenience in returning a file marked copy to
our office.
Thank you for your assistance in this matter.
Very truly yours,
COOTS, HENKE WHER, P.C.
nnifer
Legal Assi
/j c
Enclosures
cc: Paul D. Vink, Alan S. Townsend (w /enclosure)
John R. o(w /enclosure)
K:\EDC\MIDWEST HOSPITALITY GROUP \CLERK LTRA.wpd
oE.D
Coots
IN THE HAMILTON SUPERIOR COURT #3
STATE OF INDIANA
MIDWEST HOSPITALITY GROUP, INC.
and MOTELS OF CARMEL, LLP,
Petitioners,
vs. CAUSE NO.: 29D03- 0805 -MI -565
THE CITY OF CARMEL,
THE CARMEL PLAN COMMISSION,
Respondents.
PETITIONERS' BRIEF ON WRIT OF CERTIORARI
Petitioners Midwest Hospitality Group, Inc. and Motels of Carmel, LLP (collectively,
"Petitioners by counsel, pursuant to the Court's Order following the Pre -Trial Conference held
in this matter March 4, 2009, now submits their Brief on Writ of Certiorari, which Writ of Certiorari
was returned by Respondents on April 9, 2009. A copy of the Table of Contents filed with the return
is attached hereto as Exhibit "A" since many of the Exhibits are referenced in this Brief and the
location, description and dates of the Exhibits are contained within the Table of Contents.
Background
Petitioners are Indiana entities engaged in the construction and management of hotel
properties throughout the Midwest. Petitioners acquired the 2.65 acre tract from Justus Home
Builders, Inc. for the purpose of constructing a four story, full service Holiday Inn hotel property.
At the time of Petitioners' acquisition of the property, it was zoned B -6 under the Carmel Zoning
Ordinance (Volume 1, Exhibit 1, Schedule A [Bates Stamp page 000548]), which Zoning Ordinance
permitted the construction of a full service hotel within the B -6 Zone as further regulated by the
Carmel Zoning Ordinance U.S. 31 Overlay Zone that imposes certain additional standards to be
reviewed and approved by the Carmel Plan Commission. The enabling statute, I.C. 36 -7 -4 -601, et.
seq. and the Carmel Zoning Ordinance, Z -160, as amended (Volume 1, Exhibit 1) and I.C. 36 -7 -4-
1400, et. seq., sets forth the Plan Commission's duties and responsibility with reference to the review
of a Development Plan and Architectural Review Plan (Carmel Zoning Ordinance specifies that the
architectural design, lighting, landscaping and signage [ADLS] and if it meets the requirements of
the Ordinance shall be approved by the Plan Commission). In reviewing a Development Plan, the
Carmel Zoning Ordinance mirrors I.C. 36 -7 -4 -1403 establishing the requisites of the Zoning
Ordinance and that the development requirements that must be specified for the approval of a
Development Plan.
Chronology
The following chronology sets forth the time line and procedural history of Petitioners'
Development Plan and ADLS Applications before the City of Carmel and the Carmel Plan
Commission.
1. Development Plan Application filed April 1, 2007. (Volume 2, Exhibit 4) (The
Application was dated February 16, 2007; however, officially filed April 1, 2007.)
2. The Petitioners filed their Architectural Design Landscaping Lighting and Signing
Application (ADLS Petition) on June 22, 2007. (The Application for ADLS approval is dated
February 15, 2007.)
3. The Applications were consolidated and assigned for Public Hearing properly noticed
on August 21, 2007.
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4. Once Applications requiring Plan Commission action are filed, the Zoning Ordinance
requires Petitioners to submit plans to the Technical Advisory Committee (TAC) that starts the
process of review by various City departments and public utilities. (Volume 2, Exhibit 5)
5. Between the date of the filing of the Applications and the Public Hearing held August
21, 2007, many communications contained in the return describe requests made by the City and
responses made by the Petitioners to address the Department of Community Services' (DOCS)
concerns, issues raised by TAC members and the City' s request for additional documentation.
6. Following the August 21, 2007, Public Hearing, the Applications were assigned to
the Carmel Special Studies Committee whose responsibility is to review in further detail materials
submitted in support ofthe Applications. (Volume 2, Exhibits 7 -12 reflect the initial responses from
TAC members; Volume 2, Exhibits 4 -29 reflect various communications between DOCS, the City
of Carmel Department of Engineering [DOE], Carmel's Urban Forester [Scott Brewer] and
responses from the Engineer retained by the Petitioners [Mike DeBoy and Stacy Fouts].) The Fire
Department, Police Department, Duke Energy, Vectren and Carmel Utilities also make their reports.
7. The initial review by DOCS produced an amended ADLS Application (Volume 2,
Exhibit 30) which caused a second series of communications between various Carmel departments
and the representatives of the developer (Volume 2, Exhibits 31 -45) and communications between
DOCS and the engineer /attorney for Petitioners (Volume 2, Exhibits 46 -56).
8. The record also contains communications between the various City departments and
remonstrators (Volume 2, Exhibits 57 -58).
9. On September 7, 2007, the City of Carmel commenced an amendment to the U.S. 31
Overlay Zone that in part excluded hotel construction as a permitted use; however, since the
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Petitioners' Application was on file and in the review process, the Ordinance Amendment was
inapplicable to Petitioners' Applications.
10. Following the August 21, 2007, Public Hearing, the Applications continued to receive
review from various Carmel Departments during the months of September,. October, November and
December, 2007.
11. Since traffic on Smokey Row Road and the intersection of Old Meridian was a
concern of the DOCS, Plan Commission and remonstrators, the DOE requested and Petitioners
supplied a traffic study performed by A &F Engineering (Volume 3, Exhibit 116; Volume 3, Exhibit
116A; Volume 3, Exhibit 149; Volume 3, Exhibit 160).
12. The DOE represented by Gary Duncan responded on multiple occasions to the traffic
issue including the observations that the proposed project would produce less traffic than what was
originally planned for the site medical office buildings (Volume 3, Exhibit 119). He approved the
proposed improvements to Smokey Row Road at its intersection with Old Meridian (Volume 3,
Exhibit 157); the DOE's approval of the traffic improvements (Volume 3, Exhibit 179; Volume 3,
Exhibit 180, paragraph 5).
13. Following several months of communication exchanges between the City of Carmel
and the Petitioners, revised Development Plans and ADLS Plans were submitted for the April 1,
2008, Special Studies Committee Meeting (Volume 3, Exhibit 147). A copy of the green bound
"Packet" is submitted herewith as a convenience to the Court and marked as Exhibit "B."
14. The DOCS confirmed in several communications to the Special Studies Committee
that the DOE, the DOCS and the Urban Forester approved and accepted the proposals submitted by
the Petitioners (Volume 3, Exhibits 165, 171 -172, 174).
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15. The Special Studies Committee referred the Applications to the Plan Commission for
its April 15, 2008, Meeting, without recommendation and at the April 15, 2008, Plan Commission
Meeting, the Applications were denied. (Volume 3, Exhibit 187).
16. The Petition for Writ of Certiorari was filed May 9, 2008.
17. The Carmel Plan Commission entered its Findings as required by I.C. 36 -7 -4 -1406
on May 30, 2008, 15 days after the time prescribed by I.C. 7 -4 -1003 for the filing of a petition for
writ of certiorari.
Plan Commission Decision and Findings
On the entire record submitted, the Plan Commission entered its Decision and Findings
(Volume 3, Exhibit 188) on May 30, 2008. The Plan Commission's denial of the Development Plan
and ADLS Application is not supported by any evidence in the record and is illegal in its entirety in
that it deprives Petitioners' of their rights to develop real estate granted by the Carmel Zoning
Ordinance. The Plan Commission's denial of the Development Plan and ADLS Application is
arbitrary and capricious in that the evidence tendered in support of the Application and either
uncontroverted at the Public Hearing or contested only by supposition, surmise, lay opinion or a clear
absence of any evidence controverting Petitioners' evidence entitling the Petitioners to approval of
the Development Plan and ADLS. The individual findings (Volume 3, Exhibit 188) and repeated
here for the convenience of the Court are defective in the following particulars:
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.
5
The Finding is contrary to the evidence and contrary to the Ordinance that spells out
the maximum parcel coverage and density. §23B.08.06 of the Carmel Clay Zoning Ordinance
(Chapter 23B.00, et. seq., attached hereto as Exhibit "C provides in Paragraph A "Maximum
parcel coverage shall be 65% of any parcel covered by a DP (Development Plan)." All of the
evidence submitted and the reports by the Department show Petitioners' parcel coverage to
be 62% well within that permitted by the Zoning Ordinance. Nothing in the Ordinance
precludes the removal of woodlands; however, Petitioners submitted a tree preservation plan
approved by the Urban Forester and provided a landscape plan that complied with the
requirements of the Ordinance. The conclusory contents of the Finding are clearly erroneous
and not supported by any evidence.
2. §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 woodland so drastically.
The parcel in question is surrounded on the east, south and west by B -6 zoned
properties and the north by U.S. Highway 31. Across U.S. Highway 31 is the Clay Terrace
Planned Unit Development Shopping Center. It is obvious that St. Vincent Hospital to the
west did considerable modifying of the topography and woodlands at the time the Hospital was
constructed. The Pro -Med Medical Office Buildings to the south and southeast likewise
modified topography and woodlands by the building of buildings, creation of parking areas
and driveways, the construction of drainage detention areas, the construction of lawns and
Iandscape areas all similar or identical to those submitted by the Petitioners and approved by
the Urban Forester and the DOCS. Further, the Finding "without modifying the topography
and woodlands so drastically" is totally devoid of any standard to measure "drastic"
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106 Hotel Rooms
1 space per room
106 spaces required
Conference Center 4,240 sq. ft.
1 space per 250 sq. ft.
17 spaces required
50 Seat Restaurant
1 space per 2.5 restaurant seats
20 spaces required
12 Employees maximum shift
1 space per employee
12 spaces required
TOTAL
155 spaces required,
155 spaces provided
modification of topography or woodlands. The Development, Ordinance and ADLS
requirements set forth the tree preservation requirements, landscape requirements,
engineering approval requirements, on site and off -site water detention, parking areas, access
roads, traffic circulation, sidewalks, multi purpose paths and lot coverage. A Finding so vague
and conclusory without supporting documentation or evidence is clearly erroneous.
3. §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 fee wide,
and the parking facilities would accommodate only 155 vehicles when the Ordinance requires 169
to be accommodated.
The Finding is plainly wrong and contrary to the drawings submitted specifically those
contained in the March 27, 2008, site plans (Volume 3, Exhibits 161, 163) and the supplemental
packet dated April 1, 2008 (Volume 3, Exhibit 176) (attached hereto as Exhibit "B Sheet
C2.0 labeled site plan Tab 3 and while difficult to read, clearly shows in the site data table
(lower right) that the project required 155 total spaces and that 155 spaces were provided
according to the following table:
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The Finding also concludes that the proposed bicycle path is "only five feet wide" which
is clearly erroneous in that site legend R the multi purpose bicycle path along the northwest
perimeter of the property clearly shows that the path is a ten feet wide asphalt path. The
pedestrian sidewalk along the southwest and south perimeter of the property is a five foot
sidewalk, which complies with the Zoning Ordinance requirements. Because of the erroneous
factual conclusions contained in the Finding without any evidence sustaining the Finding, such
Finding is simply in error.
4. §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.
The Finding is clearly erroneous and unsupported by any-evidence in that the existing
platted residential uses to the east (Kensington Place) are separated from the subject real estate
by more than 180 feet of B -6 zoned property that the Plan Commission has approved for the
Justus Corporation to develop as a multi -story office building that will exist between
Kensington Place and the proposed Holiday Inn development. The building setbacks are those
required by the B -6 Ordinance as modified by the U.S. 31 Overlay Zone and cannot be
arbitrarily modified or a new level of building setback, landscape or otherwise be required for
neighborhoods that do not adjoin the subject property. Such Finding is clearly erroneous and
unsupported by any evidence in the record. A copy of the Carmel Zoning Map for the area
is attached as Exhibit "E."
5. §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
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HOTEL
LOCATION
LONGEST AXIS
Radisson Hotel
(formerly Wyndham)
I -465 and Pennsylvania
Parkway
Parallel to 465
Jamison Inn
(formerly Signature)
103rd and Meridian
East/West, perpendicular to
U.S. 31
Courtyard by Marriott
103rd and Meridian
East/West, perpendicular to
U.S. 31, parking along
Meridian
Doubletree Hotel
106th and Pennsylvania
East/West, perpendicular to
U.S. 31, parking main
entrance facing Meridian
Proposal locate all parking to the rear or the side of the building as necessary to accomplish this
purpose.
The building axis runs north to south mirroring the Justus approved building
immediately to the east. The building is oriented to Smokey Row Road that runs along the
northwest perimeter of the property and until Finding 5 was written and included in the
Findings filed May 30, 2008 (fifteen days after the vote of the Plan Commission on the
Application), there was never a mention in any record or by any City representative that the
building was improperly oriented. The parking garage beneath the hotel and the landscaped
parking area west of the hotel structure were reviewed by the DOCS, approved and no record
exists to support the current Finding.
There are currently ten hotels within the U.S. 31 Overlay Zone beginning at I -465 to
136th Street. Of the ten, seven of the hotels are oriented with their longest axis perpendicular,
not parallel, to U.S. Highway 31, each of the hotels has parking to the building line along U.S.
31, all summarized in the following table:
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Springhill Suites
116th and Pennsylvania
East/West, perpendicular to
U.S. 31, parking extended
to the building setback line
along Meridian
Marriott Residence Inn
116th and Pennsylvania
East/West, perpendicular to
U.S. 31, parking extended
to the building setback line
along Meridian
Renaissance Inn
120th and Pennsylvania
East/West, perpendicular to
U.S. 31, parking north and
south extended to the
building setback line of
Meridian
Hampton Inn
Pennsylvania and Old
Meridian
East/West, perpendicular to
Meridian, parking between
the building and Meridian
Hilton Garden
131st and Pennsylvania
North /South, parallel to
Meridian
Hotel Indigo
131st, Pennsylvania and
U.S. 31
Under construction
6. §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.
The Exterior Insulation Finishing System (EIFS) was completely removed from the
exterior building material as contained in the Plan Commission Minutes and DVD of the April
15, 2008, Meeting (Volume 3, Exhibit 187). To base a Finding supporting denial on a non-
existent factual assertion is clearly erroneous.
Subsequent to the denial of Petitioners' Application, the Carmel Plan Commission on
March 17, 2009, approved Docket No. 0808 -0020 ADLS Hotel Indigo's Application to
construct a five story hotel building at the northeast corner of 131st Street and U.S. 31, Zone
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B- 6/Business within the U.S. 31 Overlay Zone, which Application contained EIFS in the
amount of 10% used on top banding and balcony area. (See the attached Exhibit "D," the
Minutes from the Carmel Plan Commission, Special Studies Committee Meeting of March 3,
2009, and the Minutes of the March 17, 2009, Carmel Plan Commission approving such
Application containing EIFS within the U.S. 31 Overlay Zone.)
7. §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.
Sheet A2.0 prepared by Architectural Group 3 found under Tab 5 of the Supplemental
Submission for Supplemental Plan Commission April 1, 2008, Meeting (Exhibit "B are
labeled west elevation and north elevation that would be the primary U.S. Highway 31
exposure. In addition to the colored renderings submitted and approved by the DOCS, the
Applicants submitted samples of building materials to be used including samples of brick,
Renaissance masonry units, polycarbonate panels and again the omission of any exterior
insulation finish system. Nowhere in Chapter 23B of the Carmel City Code is there any
requirement to show or describe ventilation for underground parking structures as they are
somewhat rare. Prior to construction of the hotel however, the heating, ventilating and air
conditioning systems and plans for their construction would be required to obtain approval
from the State Fire and Building Services and it seems a stretch to base denial of the
Development Plan /ADLS Application on the absence of the location of a ventilating fan
11
subsurface. In the same vein, the plans do not show how lights will be turned on, water
supplied to toilets, the opening and closing of doors and many, many other processes that
occur as the overall construction of a project progresses.
8. §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).
Sheet LP101 of Volume 3, Exhibit 176 (Exhibit "B is a drawing prepared by
Remenschneider Associates, Inc. and found by the Carmel Urban Forester Scott Brewer to be
in compliance with §23B.10.02.C(1) and §23B.10.C(5) of the Carmel Zoning Ordinance U.S.
31 Overlay Zone. The emails from Scott Brewer approve the landscape plan including the
landscape islands surrounding the parking area and located throughout landscape islands
within the parking area. The landscape turn around adjacent to the main entrance and the
landscape planting along the entire western elevation of the hotel building were found to
comply with the Ordinance requirements. There is no credible evidence in the record
supporting the Finding or controverting the contents of the landscape plan.
9. §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.
Sheet LP103, tree protection plan, prepared by Remenschneider Associates, Inc., under
Tab 4 of Exhibit 176 (Sheet 3) (Exhibit "B identifies all trees to be preserved and when the
preserved trees are overlaid on the landscape plan (LP101, Sheet 1), the entire perimeter of
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the site is landscaped equal to or in excess of the Ordinance. Nowhere in the record is there
any factual data to support the Finding that any trees located within the perimeter, nine inches
or greater DBH, are removed.
10. §23B.16: The Proposal does not include a roof on the accessory structure for refuse
storage.
Tab 6 of Volume 3, Exhibit 176 (Exhibit "B shows the detail of the trash dumpster
(A5.4.1) that is unclear whether a solid roof is included. Because the dumpster is removed
through the entry doors for emptying, it would appear that a roof could easily be affixed,
addressing the Finding that never was mentioned by any Plan Commission member or City
representative until the Findings of Fact were prepared.
11. §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 the 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 Carmel High School vacation periods).
(Exhibit "C-1") The traffic analysis and testimony provided by Steve Feribach of A &F
Engineering at the Subcommittee and at the Plan Commission on April 15, 2008, as well as
Exhibit 116, 116A, 149 and 160 present uncontroverted analysis of the traffic impact of this
project. The DOE Gary Duncan concludes in emails to the Special Studies Committee and the
DOCS that the planned traffic improvements by the Applicants improve the existing traffic
condition on Smokey Row Road and Old Meridian and that the traffic to be generated by the
proposed use would be less and cause a lesser impact on adjoining streets than if the property
13
were developed in its original medical office building approval. The Finding is in error
concluding that the traffic engineer ignored Carmel High School traffic but rather the report
states the peak traffic occurred at rush hour and not as a result of Carmel High School
students at start or close. No one can argue at certain times of the day or times of the year,
traffic in Carmel increases and decreases; however, the evidence in this Application clearly
supports that the traffic impact of this project to be less than the originally approved B -6 use
and that the improvements made by the Petitioners would assist in solving an existing traffic
issue.
Standard of Review
A plan commission decision is reviewed by a trial court on certiorari for an abuse of
discretion. Boffo v. Boone County Bd. Of Zoning Appeals, 421 N.E.2d 1119, 1125 (Ind. Ct. App.
1981). The court must defer to a plan commission's expertise and may overturn a decision if it is:
(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the 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. Equicor Development, Inc. v. Westfield- Washington
Township Plan Commission, 758 N.E.2d 34, 36 (Ind. 2001). The certiorari petitioner has the burden
of demonstrating the invalidity of the commission decision. Id. at 37.
The court may determine the sufficiency of the statements of illegality contained in the
petition for a writ of certiorari without further pleadings, and may make judgment with reference to
the legality of the decision based upon the facts set out in the return to the writ of certiorari. Ind.
Code 36 -7 -4 -1009. The court may take additional evidence to supplement the return to the writ of
14
certiorari, but the review may not be by trial de novo. Id. The court may reverse, affirm, or modify
the decision of the board brought up for review. Id.
As stated in Plaintiffs' Petition for Writ of Certiorari, the Plan Commission's denial of the
Development Plan and ADLS Plan is not supported by any evidence in the record and is illegal in
its entirety in that it deprives Petitioners of their rights to develop real estate granted by the Carmel
Zoning Ordinance. The B -6 Zone and U.S. 31 Overlay Zone extends 600 feet either side of Meridian
from I -465 to 146th Street. Within that zone classification and Overlay Zone, ten hotel projects have
been approved by the Carmel Plan Commission that proceeded through the same application process
as did Petitioners. Each comment in the Plan Commission's return to the Writ of Certiorari could
apply to any of those projects; however, each was approved. The Carmel Plan Commission's denial
of the Development Plan and ADLS Application constitutes an arbitrary and capricious act in that
the evidence tendered in support of the Applications and uncontroverted at the Public Hearing and
Special Studies Committee meetings clearly shows the Applicants having satisfied the Ordinance
requirements for the Development Plan and ADLS approval.' There is no credible evidence from
any other witness opposing the project to challenge the expertise submitted by the Petitioners
through its engineer, architect and traffic engineer. To simply say "This was never intended" fails
as a basis for denial of the Applications. The facts in this case are very similar to those presented
to the Indiana Court of Appeals in Rice v. Allen County Plan Commission, 852 N.E.2d 59
(Ind.Ct.App. 2006). In Rice, the Allen County Plan Commission denied a Development Plan to Rice
on evidence in opposition to the Development Plan submitted by adjacent residents. The residents
The Kensington Place property owners' objections at the Public Hearing as to the hotel
use are totally irrelevant since the property is zoned B -6 and hotel use is a permitted use within
the zone classification.
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claimed they had been promised that the real estate Rice sought to develop would remain
undeveloped common area, that Rice was using the garage for commercial purposes because trucks
entered and exited the garage and that property values would be reduced because of the construction
of the residential garage. Like the instant case, Rice's property was zoned for the development
sought and Rice provided credible evidence rebutting the adjoining residents claims. Judge Baker
in reversing the trial court's judgment upholding the Allen County Plan Commission's decision to
deny Rice the Development Plan approval first acknowledges the Equicor (infra) standard of review
and states "An administrative act is arbitrary and capricious only where it is wilful and unreasonable,
without consideration and in disregard of the facts and circumstances of the case, or without some
basis that would lead a reasonable and honest person to the same conclusion. Additionally, in the
context of zoning proceedings, evidence is substantial if it is more than a scintilla and less than a
preponderance." S &S Enters., Inc. v. Marion County Board ofZoningAppeals, 788 N.E.2d 485, 491
(Ind.Ct.App. 2003). Judge Baker goes on to state that "Substantial evidence is such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion." Id. Additionally,
it must be more than speculation and conjecture. Indiana Alcoholic Beverage Commission v. River
Road Lounge, Inc., 590 N.E.2d 656, 659 Ind.Ct.App. 1992).
The burden of proof to demonstrate the invalidity of the Plan Commission's action is borne
by the party asserting the invalidity by establishing that the criteria for approval of the zoning
application has been fulfilled. Paraphrasing Town of Beverly Shores v. Bagnoll, 590 N.E.2d 1059,
1061 (Ind. 1992). As shown in Petitioners' response to the Plan Commission's Findings of Fact, the
Petition does show that:
16
(a) the requirements of the Ordinance are met in terms of lot coverage since the proposed
development is less than 65% of the site;
(b) the proposal is compatible with surrounding land uses that are developed utilizing
retention ponds, parking areas, and driveways, changes in grade and the removal of preexisting trees
to construct each surrounding project;
(c) the Finding regarding required parking and multi purpose bicycle paths is clearly
erroneous;
(d) there are no adjacent residential uses, but rather residential uses are separate from the
proposed site by 180 feet of B -6 zoned commercial property destined to become an office building;
(e) it is consistent with the existing Plan Commission standard regarding the longest axis of
existing hotel uses within the U.S. 31 Overlay Zone and that parking does not intrude in the building
setback requirements as is similar to the vast majority of existing hotels within the Overlay Zone;
(f) the building materials are consistent with the Ordinance, including the exterior insulation
finish system (EIFS) that was removed from the proposal and as shown by the record;
(g) the Petitioners submitted all required architectural exhibits, drawings, renderings and
elevations required by the Ordinance and requested by the DOCS:
(h) the planting area does meet the requirements of the Ordinance and the record is totally
devoid of any credible evidence proving otherwise;
(I) the Application does meet the requirements of the Ordinance regarding tree preservation
on the perimeter and that the landscape plan reestablishing plantings required by the Ordinance has
not been challenged;
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(j) the trash enclosure does provide the ability to include a roof and that the completely
enclosed dumpster accessory structure (with a lid on the dumpster) substantially meets the terms of
the Ordinance; and
(k) the traffic study has proved an improvement to the existing condition and there is no
credible evidence that the study omitted consideration of data relevant for the traffic engineer to
make his report and obtain the City Engineer's approval of the traffic improvements proposed.
In order to support the Plan Commission's Findings, one would have to create evidence to
support each conclusion. As acknowledged in Rice, the Findings must be more than speculation and
conjecture, especially in light 'of the weight of the evidence presented by Petitioners in support of
each element of the Ordinance required to approve the Development Plan and ADLS Application.
Conclusion
Through this arduous process before the Plan Commission, the Petitioners responded on
multiple occasions to additional information requests from the City and /or its agencies regarding
elements of the Plan the DOCS deemed relevant and appropriate for purposes of submission to the
Plan Commission for approval. The DOCS, the DOE, the Urban Forester and the traffic analysis all
concluded Petitioners having complied with the Ordinance requirements. As stated in Rice, Infra
at 601, the fact that area residents complained or as stated by a Plan Commission member at the
April 15, 2008, Plan Commission Meeting, that it "was never intended to develop this property as
a hotel," is irrelevant to the approval of the Development Plan. Promises not recorded and running
with the land as commitments or covenants have no bearing on the Plan Commission's review
process of an application for a hotel within the B -6 zone classification that meets the Ordinance
requirements and all development requirements.
18
Alan S. Townsend
Paul D. Vink
BOSE MCKINNEY EVANS LLP
2700 First Indiana Plaza
135 N. Pennsylvania Street
Indianapolis, IN 46204
COOTS, HENKE WHEELER, P.C.
255 East Carmel Drive
Carmel, IN 46032
(317) 844 -4693
P:\EDC\MIDWEST HOSPITALITY GROUP. 17814\BRIEF ON WRIT.wpd
COOTS, HENKE WHEELER, P.C.
By:
E. avis Coots #3367 -29
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a copy of the foregoing has been duly served via United
States Mail, first class, postage prepaid on this —111- day of June, 2009, addressed to:
John R. Molitor
9465 Counselors Row, Suite 200
Indianapolis, IN 46240
E. Davis Coots
19
Vol
Ex
Description
Date received in Plan
Commission Office
1
1
Carmel Zoning Ordinance, with amendments
effective Spring
2
2
Application for ADLS
10/20/2006
2
3
Site Plan
2/15/2007
f i- 2
4
Development Plan Application, with Commitments
2/16/2007
2
5
Technical Advisory Committee Application
Christine Holmes email
3/14/2007
3/30/2007
2
6
2
7
David Littlejohn letter
4/3/2007
2
8
Greg Hoyes letter
4/12/2007
2
9
Scott Brewer email
4/17/2007
2
10
Technical Advisory Committee minutes
4/18/2007
2
11
Amanda Foley email
4/20/2007
2
12
Public Notice
4/25/2007
2
13
Zoning/Development receipt
5/4/2007
2
14
Site Plans
5/4/2007
2
15
Staff notes
Undated, probably May 2007
2
16
Scott Brewer email
5/7/2007
2
17
Angelina Conn email
5/10/2007
2
18
Angelina Conn email
5/14/2007
2
19
Stacey Fouts email
5/15/2007
2
20
Plan Commission agenda
5/15/2007
2
21
Angelina Conn email
5/22/2007
2
22
Stacey Fouts email
6/4/2007
2
23
Angelina Conn email
6/4/2007
2
24
Site Plans
6/8/2007
2
25
Scott Brewer email
6/12/2007
2
26
Angelina Conn email
6/19/2007
2
27
Plan Commission agenda
6/19/2007
2
28
Depa tnlent Report
6/19/2007
2
29
Gary Duncan email
6/20/2007
2
30
ADLS application
6/22/2007
2
31
Angelina Conn email
6/27/2007
2
32
Angelina Conn email
7/2/2007
2
33
Angelina Conn email
7/2/2007
2
34
Dave Coots email
7/2/2007
2
35
Angelina Conn email
7/5/2007
2
36
Dave Coots email
7/5/2007
2
37
Mark Wood email
7/6/2007
2
38
Zoning/Development receipt
7/9/2007
2
39
Greg Hoyes letter
7/10/2007
2
40
Dave Coots email
7/10/2007
2
41
David Littlejohn letter
7/11/2007
2
42
Michael Fogarty letter
7/13/2007
2
43
Gary Duncan email
7/16/2007
2
44
Department Report
7/17/2007
2
45
Department Report
7/17/2007
2
46
Plan Commission minutes
7/17/2007
2
47
T.A.C. agenda
7/18/2007
TABLE OF CONTENTS
2
48
Technical Advisory Committee agenda, revised
7/18/2007
2
49
Angelina Conn email
7/25/2007
2
50
Angelina Conn email
7/26/2007
2
51
Dave Coots memorandum
8/10/2007
2
52
Angelina Conn email
8/10/2007
2
53
Angelina Conn email
8/10/2007
2
54
Gary Duncan email
8/10/2007
2
55
Gary Duncan email
8/14/2007
2
56
Paul Reis email
8/16/2007
2
57
Angelina Corm email
8/20/2007
2
58
Angelina Conn email
8/20/2007
2
59
Midwest Hospitality Group packet
8/21/2007
2
60
Department Report
8/21/2007
2
61
Plan Commission minutes, plus DVD of meeting
8/21/2007
2
62
Angelina Conn email
8/22/2007
2
63
Angelina Conn email
8/23/2007
2
64
Angelina Conn email
8/24/2007
2
65
Stacey Fouts memorandum
8/28/2007
2
66
David Sanders letter
8/30/2007
2
67
Eric Seidensticker memorandum
9/4/2007
2
68
Angelina Conn email
9/5/2007
2
69
Amanda Dolph email
9/5/2007
2
70
Public Notice
9/7/2007
2
71
Adrienne Keeling memorandum
9/7/2007
2
72
Colin Patterson letter
9/11/2007
2
73
Holiday Inn O &M Manual
9/11/2007
2
74
Secondary Plat
9/11/2007
2
75
Stacey Fouts memorandum
9/11/2007
2
76
Site Plans
9/11/2007
2
77
Dave Coots email
9/13/2007
2
78
Department Report
9/18/2007
2
79
Plan Commission minutes
9/18/2007
2
80
Special Studies Committee minutes
10/2/2007
2
81
Adrienne Keeling memorandum
10/5/2007
2
82
Angelina Conn email
10/8/2007
2
83
Angelina Conn email
10/8/2007
2
84
Department Report
10/16/2007
2
85
Plan Commission minutes
10/16/2007
2
86
Ordinance certification
10/22/2007
2
87
Site Plans
10/22/2007
2
88
Site Plans
10/22/2007
2
89
Site Plans
10/22/2007
2
90
Site Plans
10/22/2007
2
91
Scott Brewer email
10/27/2007
2
92
Carol Schleif email
10/29/2007
2
93
Carol Schleif email, with notes
10/29/2007
2
94
Angelina Conn email
10/29/2007
2
95
Michael DeBoy email
11/1/2007
2
96
Alexia Donahue -Wold email
11/1/2007
2
97
Special Studies Committee agenda
11/1/2007
2
98
Department Report
11/1/2007
2
99
Amanda Dolph email
11/6/2007
2
100
Adrienne Keeling memorandum
11/9/2007
2
101
Dave Coots email
11/21/2007
3
102
Site Plans
11/21/2007
3
103
Special Studies Committee minutes, with CD
11/21/2007
3
104
Site Plans, Angie's copy, with notes
11/22/2007
3
105
Angelina Conn email
11/26/2007
3
106
Gary Duncan email
11/28/2007
3
107
Department Report
11/29/2007
3
108
Zoning Ordinance amendment
12/17/2007
3
109
Dave Coots email
12/31/2007
3
110
Gary Duncan letter
1/2/2008
3
111
Mike Hollibaugh email
1/7/2008
3
112
Leo Dierckman email
1/8/2008
3
113
Ramona Hancock email
1/8/2008
3
114
Dave Coots email
1/8/2008
3
115
Department Report
1/8/2008
3
116
Steven Fehribach memorandum
1/24/2008
3
116A
Traffic Operations Analysis (attached to Ex. 116)
November 2007
3
117
Holiday Inn supplemental packets
1/25/2008
3
118
Scott Brewer email
1/29/2008
3
119
Gary Duncan email
1/31/2008
3
120
Angelina Conn email
1/31/2008
3
121
Site Plan
1/31/2008
3
122
Site Plan
2/5/2008
3
123
Site Plan
2/5/2008
3
124
Department Report
2/5/2008
3
125
Special Studies Committee minutes, plus CD
2/5/2008
3
126
Stacey Fouts email
2/6/2008
3
127
Site Plan
2/6/2008
3
128
Matt Brown email
2/11/2008
3
129
Stacey Fouts memorandum
2/21/2008
3
130
Michael DeBoy letter
2/21/2008
3
131
Site Plan
2/21/2008
3
132
Site Plan
2/21/2008
3
133
Site Plan
2/21/2008
3
134
Site Plan
2/21/2008
3
135
Site Plan
2/21/2008
3
136
Site Plan
2/21/2008
3
137
Site Plan
2/21/2008
3
138
Site Plan
2/21/2008
3
139
Alexia Donahue -Wold email
3/4/2008
3
140
Michael DeBoy email
3/4/2008
3
141
Special Studies Committee agenda
v
3/4/2008
3
142
Department Report
3/4/2008
3
143
Special Studies Committee minutes, plus CD
3/4/2008
3
144
Scott Brewer email
3/7/2008
3
145
Gary Duncan letter
3/7/2008
3
146
Christine Holmes email
3/13/2008
3
147
Midwest Hospitality Group supplemental packet
3/14/2008
3
148
Site Plans
3/14/2008
3
149
Traffic Operations Analysis
3/14/2008
3
150
Fran Bowman email
3/15/2008
3
151
Ramona Hancock email
3/17/2008
3
152
Angelina Conn email
3/17/2008
3
153
Angelina Conn email
3 /17/2008
3
154
Dave Coots email
3/17/2008
3
155
Sanjay Patel email
3/17/2008
3
156
Angelina Conn email
3/18/2008
3
157
Gary Duncan email
3/21/2008
3
158
Gary Duncan email
3/21/2008
3
159
Scott Brewer email
3/24/2008
3
160
Steven Fehribach letter
3/25/2008
3
161
Site Plans
3/25/2008
3
162
Stacey Fouts memorandum
3/27/2008
3
163
Site Plans
3/27/2008
3
164
Craig Baird email
3/28/2008
3
165
Scott Brewer email
3/28/2008
3
166
Eric Evie Ambler email
3/31/2008
3
167
Ramona Hancock email
4/1/2008
3
168
Virginia Kerr letter
4/1/2008
3
169
Gary Doxtater letter
4/1/2008
3
170
Mike Hollibaugh email
4/1/2008
3
171
Mike Hollibaugh email
4/1/2008
3
172
Christine Holmes email
4/1/2008
3
173
Special Studies Committee agenda
4/1/2008
3
174
Department Report
4/1/2008
3
175
Special Studies Committee minutes, plus CD
4/1/2008
3
176
Supplemental packet, Angie's copy, with notes
4/1/2008
3
177
Dave Coots email
4/2/2008
3
178
Gary Duncan email
4/2/2008
3
179
Gary Duncan email
4/4/2008
3
180
Gary Duncan email
4/10/2008
3
181
Virginia Kerr letter
4/14/2008
3
182
Virginia Kerr letter
4/14/2008
3
183
Gary Doxtater comments
4/15/2008
3
184
Plan Commission agenda, page 2
4/15/2008
3
185
Department Report
4/15/2008
3
186
Findings of Fact form
4/15/2008
3
187
Plan Commission minutes, plus DVD of meeting
4/15/2008
3
188
Plan Commission decision and findings
5/30/2008
Filed By:
E. Davis Coots
Coots Henke Wheeler
for Midwest Hospitality Group, Inc.
Midwest Hospitality Group
Docket Number
07070009 ADLS
For the Plan Commission Subcommittee Meeting
April 1, 2008
CARMEL /CLAY ZONING ORDINANCE
CHAPTER 23B: U.S. HIGHWAY 31 CORRIDOR OVERLAY ZONE
23B.00 U.S. Highway 31 Corridor Overlay Zone.
23B.01 District Boundaries.
23B.02 Commission Review.
23B.03 Permitted Uses.
23B.04 Special Uses.
23B.05 UNTITLED.
23B.06 Accessory Buildings and Uses.
23B.07 Minimum Tract Size.
23B.08 Height and Yard Requirements.
23B.09 Architectural Design Requirements.
23B.10 Landscaping Requirements.
23B.11 Public Art.
23B.12 Parking Requirements.
23B.13 Lighting Requirements.
23B.14 Bicycle and Pedestrian Access.
23B.15 Access to Individual Tracts.
23B.16 Additional Requirements.
23B.17 Reservation of Land for Pending State Highway Improvements.
Section 23B.00 amended per Ordinance No. Z- 453 -09, §cn -cw.
CARMEL CITY CODE
CHAPTER 10: ZONING SUBDIVISIONS
ARTICLE 1: ZONING CODE
CITY OF CARMEL ZONING ORDINANCE
23B.00 U.S. Highway 31 Corridor Overlay Zone.'
23B.00.01 Purpose. Intent and Authority.
The purpose of the U.S. Highway 31 Overlay Zone is to promote and protect the public health,
safety, comfort, convenience and general welfare by providing for consistent and coordinated
treatment of the properties bordering U.S. Highway 31 (also known as- the Carmel Meridian
Corridor) in Clay Township, Hamilton County, Indiana. The Commission and Council, in
establishing this zone, are relying on IC 36 -7 -4 -600 et seg. and 1C 36 -7 -4 -1400 et seq. This
zoning district is, likewise, intended to serve as a tool for implementing the development policies
and guideiines set for the Corridor in the Comprehensive Plan. U.S. Highway 31 is a Limited
access highway and an important business corridor to the City of Carmel and Clay Township.
The U.S. Highway 31 Corridor is a premier office location and employment center whose
viability, quality, and character are important to the community as a whole, adjacent residents,
employees, business owners, and taxing districts. Therefore, it is the further purpose of the U.S.
Highway 31 Overlay Zone to preserve the aesthetic qualities of those bordering properties
through:
(1) the promotion of coordinated development in the U.S. Highway 31 Overlay Zone;
Chapter 23B: US Highway 31 Corridor Overlay Zone
23B -1
as adopted per Z -340; as amended per Z- 365 -01; Z-382-02; Z- 415 -03; Z- 453 -04; Z- 511 -07; Z- 512 -07
Autumn 2007 vl
CITY OF CARMEL ZONING ORDINANCE
(2) the establishment of high standards for buildings, landscaping, and other improvements
constructed on the properties within the U.S. Highway 31 Overlay Zone which permit
innovative site designs and at the same time encourage efficient land usage; and
(3) the establishment of development requirements which will encourage substantial capital
investments for the development of those properties and promote the quality, scale, and
character of development consistent with the Corridor's existing and planned uses.
2313.00.02 Plan Commission Approval.
A. Development Plan. The Commission shall review the Development Plan (DP) of any
proposed use of any Lot or parcel of ground within the U.S. Highway 31 Corridor
Overlay Zone prior to the issuance of an Improvement Location Permit by the
Department. See Section 24.02: Development Plan.
B. Architectural Design. Exterior Lighting. Landscaping and Simian. To insure the
compatibility of the proposed use with adjoining areas, the Commission shall review the
Architectural Design, Exterior Lighting, Landscaping and Signage (ADLS) application
of any proposed use of any Lot or parcel of ground within the U.S. Highway 31 Corridor
Overlay Zone prior to the issuance of an Improvement Location Permit by the
Department. See Section 24.03: Architectural Design, Exterior Lighting Landscaping
and Signage.
23B.00.99 Application Procedure.
A. Development Plan. See Section 24.99(A): Development Plan.
B. Architectural Design. Exterior Lighting_ Landscaping and Signage (ADLS). See Section
24.99(B): Architectural Design, Exterior Lighting, Landscaping and Signage (ADLS).
23B.01 District Boundaries:
The boundaries of the U.S. Highway 31 Overlay Zone are hereby established as follows:
A. Beginning at north right -of -way line of 96 Street and extending to the north right -of -way line of
Interstate Highway 465, the boundary shall follow the centerlines of Spring Mill Road on the west
and College Avenue on the east.
B. Beginning at.north right -of -way Iine of Interstate Highway 465 and extending to the south right-
of -way line of 131 Street, the boundary shall follow the centerlines of the proposed or
constructed parallel roads, namely Pennsylvania Street on the east, and Illinois Street (and
Meridian Corners Boulevard) on the west.
C. From the south right -of -way line of I3I Street to the south right -of -way line of 146 Street, or
the southern boundary of any TIF District that is contiguous to 146 Street, the boundary shall,
(unless otherwise shown on the official Zoning Map) include all and that is within six hundred
(600) feet of the right of-way for U.S. Highway 31.
Chapter 23B: US Highway 31 Corridor Overlay Zone
23B -2
as adopted per Z -340, as amended per Z- 365 -01; Z- 382 -02; Z-415-03 Z- 453 -04; Z- 511 -07; Z- 512 -07
Autumn 2007 v
23B.02 Commission Review:'
A. Development Plan. The Commission must approve, approve with conditions, or disapprove the
Development Plan (DP) for any tract of land in the U.S. Highway 31 Overlay Zone.
1. The Commission shall hold a public hearing before it decides whether to approve or
disapprove a DP. However, no DP is required for additions to existing structures which:
a. Are attached to the existing structure;
b. Continue the architectural design of the existing structure, including exterior
color and materials; doors and windows, other detailing;
c. Meet with requirements of the underlying primary zoning district;
d. Do not exceed twenty percent (20 of the original gross floor area of the
existing structure, applicable from the date of this ordinance, and,
e. Have received a prior ADLS approval from the Commission.
The Commission shall review a DP application to determine if the DP satisfies the
development requirements specified in Sections 23B.03 through 23B.08. The
Commission's review shall include, but not be limited to, the following items:
a. Existing site features, including topography and wooded areas;
b. Zoning on site;
c. Surrounding zoning and existing land use;
d. Streets, curbs and gutters, sidewalks, and bicycle paths;
e. Access to public streets;
f. Driveway and curb cut locations in relation to other sites;
g.
h.
i. Special and general easements for public or private use;
j. On -site and off -site surface and subsurface storm water drainage including
drainage calculations:
p•
q.
Section 23B.02 amended per Ordinance No. Z- 453 -09, §ex -dh.
General vehicular and pedestrian traffic;
Vehicle and bicycle parking facilities and internal site circulation;
CITY OF CARMEL ZONING ORDINANCE
k. On -site and off-site utilities;
I. The means and impact of sanitary sewage disposal and water supply techniques;
m. Dedication of streets and rights -of -way, or reservation of land to be sold to
governmental authorities for future development of streets and rights -of -way;
n. Proposed setbacks, site landscaping and screening. and compatibility with
existing platted residential uses;
Project signage;
Protective restrictions and /or covenants;
Compatibility of proposed project with existing development within the U.S.
Highway 31 Corridor; and,
Chapter 23B: US Highway 31 Corridor Overlay Zone
23B -3
as adopted per Z -340; as amended per Z-365-0I; Z- 382 -02; Z- 415 -03; Z- 453 -04; Z-511-07; Z- 512 -07
Autumn 2007 v 1
CITY OF CARMEL ZONING ORDINANCE
r. Consistency with the policies for the Overlay Zone which are set forth in the
Comprehensive Plan, including the Thoroughfare Plan.
3. Findings -of -Fact. The Commission shall make written findings concerning each decision
to approve or disapprove a DP. The President of the Commission shall be responsible
for signing the written findings of the Commission.
B. Architectural Design. Exterior Lighting. Landscaping and Signage. Except as provided in
Paragraph (A)(1) above, for all projects in the U.S. Highway 31 Overlay Zone, the Commission
shall review and approve the Architectural Design, Exterior Lighting, Landscaping and Signage
(ADLS), access to the property, site layout, parking and site circulation, pursuant to Sections
23B.09 through 23B.15.
1. ADLS approval shall be necessary prior to:
a. The establishment of any use of land;
b. The issuance of any Improvement Location Permit;
c. The erection, reconstruction or structural alteration of any building(s) in the
U.S. Highway 31 Overlay Zone; or
d. Any changes in any site improvements.
An amendment to an ADLS may be reviewed and approved by a committee of the
Commission according to the Rules of Procedure. However, any interested party may
appeal the decision of the committee directly to the Commission.
C. Zoning Waiver. The Commission may, after a public hearing, grant a Plan Commission Waiver
of certain Development Requirements of this Chapter, so noted within. Any approval to permit
such a waiver shall be subject to the following criteria:
(1) The proposal shall be in harmony with the purposes and the land -use standards
contained. in this Chapter.
(2) The proposal shall enhance the overall Development Plan, the adjoining streetscapes and
neighborhoods, and the overall U.S. 31 Corridor.
The proposal shall not produce a Site Plan or street/circulation system that would be
impractical or detract from the appearance of the Development Plan and the U.S. 31
Corridor, and shall not adversely affect emergency vehicle access or deprive adjoining
properties of adequate light and air.
(4) The proposal exhibits extraordinary site design characteristics, including, but not Iimited
to: Increased landscape treatment, tree preservation, public art, provisions for bicycles
and /or mass transit, reduced surface parking coupled with provisions for above or below
ground parking facilities.
In granting a waiver, the Commission may impose such conditions that will, in its judgment, secure
the purposes of this Chapter. This Paragraph does not affect the right of an applicant under Indiana
law to petition the Board for a variance from development standards, as provided in IC 36 -7 -4-
918.5 and this Zoning Ordinance.
(3)
Chapter 23B: US Highway 31 Corridor Overlay Zone
7 .3B-4
as adopted per Z -340; as amended per Z- 365 -01; Z- 382 -02; Z- 415 -03; Z- 453 -04; Z- 511 -07; Z- 512 -07
Autumn 2007 v]
23B.03 Permitted Uses:
All uses which are permitted in the underlying primary zoning district(s), except the uses expressly
excluded by Appendix A: Schedule of Uses, are permitted in the U.S. 31 Overlay Zone.
23B.04
Special Uses:
There shall be no Special Uses permitted in the U.S. Highway 31 Overlay Zone.
23B.05 5
23B.05.01 Excluded Uses: See Appendix A: Schedule of Uses.
CITY OF CARMEL ZONING ORDINANCE
23B.05.02 Retail Service Uses:
Retail and service uses may be included in one or more buildings within a DP, subject to the
following:
A. Retail and Service Uses may comprise up to:
(1) Fifteen percent (15 of the Gross Floor Area (GFA) of any building; or,
(2) Up to thirty percent (30 of the GFA of one building may be retail and service
uses, provided that:
(a) Total square footage of retail and service uses designated in the
development plan does not exceed fifteen percent (15 of the GFA of
all buildings combined; or,
(b) Retail and service uses over fifteen percent (15 of the GFA of any
one building be located on the ground floor or below grade.
B. The Commission may grant a waiver to allow retail and service uses to be located on
floors other than ground or below- grade, pursuant to the criteria found in Section
23B. 02(G).
23B.05.03 Cultural Entertainment Uses:
Cultural and Entertainment uses may be included in one or more buildings within a DP. subject to
the following:
A. Cultural and Entertainment Uses may comprise up to:
(1) Fifteen percent (15 of the Gross Floor Area (GFA) of any building; or,
(2) Up to thirty percent (30 of the GFA of one building may be. Cultural and
Entertainment Uses, provided that:
(a) Total square footage of Cultural and Entertainment Uses designated in
the development plan does not exceed fifteen percent (15 of the
GFA of all buildings combined; or,
(b) Cultural and entertainment Uses over fifteen percent (15 of the GFA
of any one building be located on the ground floor or below grade.
3 Section 23B.03 amended per Ordinance No. Z- 382 -02, §b: Z- 415 -03, §bu.
4 Section 238.04 amended per Ordinance No. Z- 415 -03, §br.
5 Section 23B.05 amended per Ordinance No. Z- 415 -03, §bw -bx: Z- 512 -07.
Chapter 23B: US Highway 31 Corridor Overlay Zone
23B -5
as adopted per Z -340: as amended per Z- 365 -01; Z- 382 -02; Z- 415 -03; Z- 453 -04; Z- 511 -07; Z- 512 -07
Autumn 2007 vl
(1)
All other requirements applicable to the U.S. 31 Overlay Zone can be met.
CITY OF CARMEL ZONING ORDINANCE
B. The Commission may grant a waiver to allow cultural and entertainment uses to be
located on floors other than ground or below grade, pursuant to the criteria found in
Section 23B.02(G).
23B.06 Accessory Buildin6s and Uses:
All Accessory Buildings and uses which are permitted in the underlying primary zoning district(s) shall be
permitted, except that any attached or detached Accessory Building in any DP /ADLS shall have on all
sides the same building proportions, •architectural features, construction materials, and in general be
architecturally compatible with the Principal Building(s) with which it is associated.
23B.07 Minimum Tract Size:
A. Except as provided in Paragraph C. below, the minimum area covered by a DP within the U.S.
Highway 31 Overlay Zone must be 217,800 square feet (5 acres).
If a Parent Tract (Tract) is located both inside and outside of the U.S. Highway 31 Overlay Zone,
a DP shall be submitted to the Commission for the entire tract. Wherever there exists a conflict
between the requirements of the underlying zoning and those of the U.S. 31 Overlay Zone, the
requirements for the U.S. 31 Overlay Zone shall prevail.
C. If a parcel of land or subdivision lot was recorded prior to April 21, 1980 (the "Effective Date
and said parcel or lot does not contain the minimum area required by this Paragraph, said parcel or
lot "Undersized Lot may be used for any use permitted in the U.S. 31 Overlay Zone provided
that:
At the time of recordation of the Undersized Lot or on the Effective Date, the Undersized
Lot met the requirements for minimum lot size then in effect for a lot in the underlying
primary zoning district(s);
(2) The owner of the Undersized Lot must include any adjoining vacant land (not separated
by a street or public way) owned or owned by an affiliate on or before the Effective Date
or at the time of application which, if combined with the Undersized Lot would create a
parcel which conforms, or more closely conforms, to the requirements of this Paragraph;
and,
D. Section 23B.07 does not preclude the sale or other transfer of any parcel of land within a Parent
Tract after the approval of a Development Plan (DP) for the entire tract. However, the
development of the parcel must still conform to the DP for the Parent Tract as approved or
amended by the Commission, and all other applicable requirements contained in the Zoning
Ordinance.
Chapter 23B: US Highway 31. Corridor Overlay Zone
23B -6
as adopted per Z -340; as amended per Z- 365 -01; Z-382-02, Z- 415 -03; Z- 453 -04; Z- 511 -07; Z- 512 -07
Autumn 2007 v 1
CITY OF CARMEL ZONING ORDINANCE
23B.08 Height and Yard Requirements.'
The purpose of this Section is to provide site design requirements that align buildings along the edges of a
parcel, towards the public right -of -way of the U.S. 31 Corridor, and, where applicable, the 1 -465,
Pennsylvania Street, Pennsylvania Parkway, Meridian Corners Boulevard, and Illinois Street Corridors. It
is the intent of these regulations to orient new buildings with their longest axis parallel to the adjoining
highway or street to create a sense of enclosure along the streets, with parking located to the rear, and. if
necessary, to the side of a building.
23B.08.01 Build -To Lines:
A. Except as allowed in Paragraph B below, all Principal Buildings shall be located on the
U.S. 31 Corridor Build -to Line, defined in Paragraph C below.
B. For Development Plans on Through Lots with two or more Principal Buildings
(buildings), up to one -half /z) of the buildings may be placed on the Pennsylvania Street,
Pennsylvania Parkway, Meridian Corners Boulevard, and !Illinois Corridor Build -to -line
instead of the U.S. 31 Build -to Line.
C. Dimensional requirements for Build -to -lines shall be measured from the highway or
street Right -of -way line:
(1) U.S. 31 Corridor and 1 -465: Ninety (90) feet
(2) Pennsylvania Street, Pennsylvania Parkway, Meridian Corners Boulevard, and
Illinois Corridors: Twenty (20) feet.
D. Principal .Buildings that are also located adjacent to any arterial or parkway (e.g. 96
Street or 116 Street) shall be sited consistent with the Building Setback Line of the
underlying zoning.
23B.08.02 Minimum Side and Rear Yards:
A. Adjacent to any residential use or zone: Forty -five (45) feet.
B. Adjacent to business use or business zone: Fifteen (15) feet.
23B.08.03 Building Height: As specified in the underlying primary zoning district(s), except as
follows:
A. Minimum Building Heiehts:
1. All uses along U.S. 31 and 1 -465: Thirty -eight (38) feet and three (3)
occupiable floors.
2. All uses along Pennsylvania Street, Pennsylvania Parkway, Meridian Corners
Boulevard. and Illinois Street Corridors, or adjoining arterial /parkway: Twenty
six (26) feet and two (2) occupiable floors.
B. Maximum Building Heiehts: As specified in the underlying primary zoning district(s),
except as follows:
(1) B -5 District Between I -465 and 131' Street: Eighty (80) feet, except that the
maximum height may not exceed forty percent (40 of the distance from any
residential use or zone.
Section 23B.08 amended per Ordinance No. Z- 382 -02, ¢c -f.. Z- 953 -09, odi -dj.
Chapter 23B: US Highway 31 Corridor Overlay Zone
23B -7
as adopted per Z -340; as amended per Z- 365 -01; Z- 382 -02, Z- 415 -03; Z- 453 -04; Z- 511 -07; Z- 512 -07
Autumn 2007 v 1
23B.08.04 Minimum Parcel Width:
DP.
CITY OF CARMEL ZONING ORDINANCE
(2) B -6 District All uses, between 1 -465 and 131 Street: One hundred fifty (150)
feet, except that the maximum height may not exceed forty percent (40 of the
distance from any residential use or zone.
(3) Maximum height for all buildings along Pennsylvania Street, Pennsylvania
Parkway, Meridian Corners Boulevard, and Illinois Street frontages: Fifty -five
(55) feet.
For all uses, the parcel width shall equal or exceed that amount which is one -half the depth of
the parcel. However, if a parcel of land or subdivision lot was recorded prior to April 21, 1980
(the "Effective Date and said parcel or lot does not contain the minimum width required by this
Paragraph, said parcel or lot "Undersized Lot may be used for any use permitted in the U.S. 31
Overlay Zone provided that:
A. At the time of recordation of the Undersized Lot or on the Effective Date, the Undersized
Lot met the requirements for minimum lot width then in effect for a lot in the underlying
primary zoning district(s);
B. The owner of the Undersized Lot must include, up to the minimum parcel width, any
adjoining vacant land (not separated by a street or public way) owned, or owned by an
affiliate, on or before the Effective Date or at the time of application which, if combined
with the Undersized Lot, would create a parcel which conforms, or more closely
conforms. to the minimum parcel width requirements of this Paragraph, and
C. All other Development Requirements applicable to the U.S. 31 Overlay Zone can be met.
23B.08.05 Minimum Gross Floor Area:
A. All buildings shall have a minimum of fifteen thousand (15,000) square feet of gross
floor area, excluding the floor area of any basement or any accessory building(s).
Accessory Buildings permitted need not meet this minimum floor area requirement. The
intent of this minimum gross floor area requirement is to preclude small, freestanding
buildings and uses not in character with the Corridor.
B. Distribution of Gross Floor Area.
1. All uses along U.S. 31 and 1 -465:
a. Maximum First floor GFA: Forty percent (40
b. Maximum Second floor GFA: Thirty -five percent (35
2. All uses along Pennsylvania Street, Pennsylvania Parkway, Meridian Corners
Boulevard, and Illinois Street Corridors, or adjoining arterial /parkway:
a. Maximum First floor GFA: Sixty percent (60
23B.08.06 Maximum Parcel Coverage and Density:
A. Maximum Parcel Coverage shall be sixty -five percent (65 of any parcel covered by a
Maximum Floor Area Ratio (F.A.R.) shall be 0.70, with the F.A.R. being calculated by
dividing the total gross floor area of a building or buildings on any parcel by the area of
such parcel.
Chapter 23B: US Highway 31 Corridor Overlay Zone
23B 8
as adoptedper Z -340; as amended per Z- 365 -01; Z- 382 -02; Z- 415 -03; Z- 453 -04; Z- 511 -07; Z- 512 -07
Autumn 2007 v 1
7 Section 23B.09 amended per Ordinance No. Z- 511 -07.
CITY OF CARMEL ZONING ORDINANCE
23B.08.07 Waivers:
The applicant may request a Plan Commission Waiver to the dimensional and quantitative
standards of this Section 23B.08, by not greater than thirty -five percent (35 consistent with
requirements set forth in Section 23B.02(G).
23B.09 Architectural Design Requirements.'
In reviewing the architectural design of building(s) proposed to be built in the U.S. Highway 31 Overlay
Zone, factors to be considered by the Commission shall include but not be limited to the following:
A. Context: All buildings shall be designed with respect to the general character of the U.S. 31
Corridor and, particularly, with due consideration to buildings located on Lots that abut the project
site.
B. Materials: 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, and
ornamental metal. Large expanses of glass are allowed, up to seventy percent (70 of the facade
area. The building may not be constructed entirely of a metal and glass curtain wall. Concrete
block is not allowed as an exterior finish material.
C. Footprint: All buildings shall be designed with a minimum of eight external corners, in order to
eliminate box buildings.
D. Roof: Modulation of the roof and /or roof line will be required in order to eliminate box- shaped
buildings. Parapets must be fully integrated into the architectural design of the building and
provide seamless design transitions, including exterior materials, between the main building mass,
mechanical penthouses and other roof structures. Should they be used, partial parapets shall have
a return that extends inward to at least the first structural bay, or twenty-five (25) feet, whichever
is greater.
Sloped roofs shall not exceed one hundred (100) feet without a change in roof plane, or gable or
dormer. Sloped roofs shall be either standing seam metal or dimensional shingles.
E. Exhibits. The following architectural exhibits shall be provided to the Commission in addition to
normal submission requirement of any DP or ADLS application, as required by Chapter 24:
(1) A Site Plan showing the proposed building and neighboring buildings, including
buildings across U.S. 31.
(2) Perspective computer- enhanced color renderings showing the proposed building,
signage, parking areas (shown loaded) and any displays within the context of the actual
existing site conditions, including how it will look from any adjoining residential areas,
as well from as three locations, whose distance is no less than three hundred (300) linear
feet away nor more than one thousand (1000) Iinear feet away (from the property line),
along U.S. 31:
(a) U.S. 31 Southbound lane
(b) Immediately across the highway, from approximately first floor level
(c) U.S. 31 Northbound lane
Chapter 23B: US Highway 31 Corridor Overlay Zone
23B -9
as adopted per Z -340: as amended per Z- 365 -01; Z- 382 -02: Z-415-03, Z- 453 -04; Z- 511 -07; Z- 512 -07
Autumn 2007 v 1
F. Waivers:
The applicant may request a Plan Commission Waiver to the dimensional and quantitative
standards of this Section 23B.09 by not greater than thirty -five percent (35 consistent with
requirements set forth in Section 23B.02(G).
23B.10 Landscaping Requirements.'
23B.10.01 Landscape Plan:
A Landscape Plan shall be submitted to the Plan Commission for' its approval at the same time
other plans (i.e. architectural design, lighting, parking and signage) are submitted. This plan shall:
A. Be drawn to scale, including dimensions and distances;
B. Delineate all existing and proposed buildings, private parking areas, walks, ramps for
handicapped, terraces, drive -ways, signs, lighting standards, steps and other similar
structures;
C. Delineate the location. size and description of all plant material and the irrigation system
for all planting areas. Landscape treatment for plazas, roads, paths, service and private
parking areas shall be designed as an integral /coordinated part of the Landscape Plan for
the entire lot.
23B.10.02 Landscape Area Requirements:
A. Greenbelt:
(1) The Greenbelt along U.S. Highway 31 shall be a minimum of thirty (30) feet in
width and landscaped per the requirements of Section 23B.10.03(B).
(2) The Greenbelt shall be unoccupied except for plant material, steps, walks,
terraces, bike paths, lighting standards, signs, and other. "similar structures
(excluding a private parking area). Mounding and other innovative treatments
are to be encouraged in this area.
A base planting unit for each one hundred (100) linear foot increment of the
Greenbelt has been designated, as follows:
(a) Five (5) shade trees;
(b) Three (3) ornamental trees;
(c) Fifteen (15) shrubs or, three (3) evergreen trees;
B. Planting Strip:
8 Section 23B.10 amended per Ordinance No. Z- 365 -01.
CITY OF CARMEL ZONING ORDINANCE
A planting strip, minimum width shall be ten (10) feet, shall be provided
adjacent to any Collector or Arterial Street. or Parkway right -of -way within the
U.S. 31 Overlay Zone.
Adjacent to an Entry Drive: Minimum width ten (!l0) feet.
Adjacent to anv parking area: Minimum width as follows:
(a) five feet (5') wide when adjacent to business zoned property.
Chapter 23B: US Highway 31 Corridor Overlay Zone
23B -10
as adopted per Z -340; as amended per Z- 365 -01; Z- 382 -02; Z- 415 -03; Z- 453 -04; Z- 511 -0 Z- 5I2 -07
Autumn 2007 v l
(3)
(b) fifteen feet (15') wide when adjacent to residential use or zoned
property.
The planting strip shall be unoccupied except for plant material, steps, terraces.
driveway and pathway crossings, lighting standards signs, benches. and other
similar structures.
The base planting unit for planting strips shall be as follows:
(a) Adjacent to Parallel Collector /Arterial Roadways:
For each one hundred (100) linear foot increment:
(c)
(i)
(ii)
Three (3) shade trees
Two (2) ornamental trees
CITY OF CARMEL ZONING ORDINANCE
(iii) Ten (10) shrubs
(b) Adjacent to entry drives: Same planting unit standards as for Parallel
Collector /Arterial Roadways, above.
Adjacent to parking areas: per Section 26.04: Perimeter Buffering.
C. Planting Adjacent to Buildines:
(1) A planting area equal to an area measuring twenty -five (25) feet in depth by the
width of the front of the building plus twenty (20) feet (to extend ten (10) feet
out on both sides) shall be installed along building facades that face U.S. 31.
(2) A planting area equal to an area ten (10) feet in depth by the remaining sides of
the building shall be installed on all other sides of the building(s).
Sidewalks up to eight (8) feet in width may be permitted in these areas, but shall
not occupy the entire planting area on any side of the building(s).
(4) If an approach driveway or sidewalk cuts into a planting area, the area displaced
by the driveway or sidewalk shall be added to the building perimeter planting.
(5) These adjacent planting areas need not be rectangular in shape as long as the
required amount of space is landscaped; innovative and original designs are
encouraged.
D. Planting. Within Parking Lots:
A minimum of one (1) shade tree and five (5) shrubs shall be planted within each parking
lot for every nine (9) spaces provided, or not less than eighteen (18) trees per acre of
parking. -See Section 23B.10.03(B) for minimum planting area requirements.
E. Side/Rear Yard Landscaping: Planting unit shall occur per Paragraph F below.
F. Greenbelt Buffers shall be established within required side and rear yards pursuant to
Section 26.04: Perimeter Buffering.
G. Total Landscaping Required:
Inclusive of the Greenbelt, the planting adjacent to the building(s), the Greenbelt Buffers,
and the planting within parking lots, a minimum of fifteen percent (15 of the project
area shall be landscaped.
Chapter 23B: US Highway 31 Corridor Overlay Zone
23B -11
as adopted per Z -340; as amended per Z- 365 -01: Z- 382 -02; Z-415-03 Z- 453 -04; Z-511-07 Z-512-07
Autumn 2007 vl
23B.10.03 Landscaping Installation and Maintenance.
A. Materials: All plants proposed to be used in accordance with any landscaping plan shall
meet the following specifications:
(1)
(2)
(3)
(4)
(5)
CITY OF CARMEL ZONING ORDINANCE
B. The dimensions, specifications and design of any planting area or planting median shall
be as follows:
(1)
(3)
Shade trees: two and one -half inch (21/4") caliper. a minimum height of eight (8)
feet, and a branching height of not less than one -third (1/3) nor more than one
half /z) of tree height.
Ornamental trees: one and one -half inch (11/ caliper a minimum height of six
(6) feet. and a branching height of not less than one -third (1/3) nor more than
one -half ('/2) of tree height.
Evergreen trees: A minimum height of eight (8) feet
Deciduous shrubs: A minimum height of twenty -four (24) inches, and no less
than six (6) main branches upon planting.
Evergreen shrubs: A minimum height and spread of twenty -four (24) inches.
Shade Trees:
Ornamental Trees:
Shrubs (only):
nine (9) feet wide
seven (7) feet wide
five (5) feet wide
C. Landscaping materials selected shall be appropriate to .local growing and climate
conditions.
D. Installation: All required landscaping shall be installed prior to the issuance of a final
Certificate of Occupancy by the Department. If it is not possible to install the required
landscaping because of weather conditions, the property owner shall post a bond for an
amount equal to the total cost of the required landscaping not yet installed, prior to the
issuance of the Final Certificate of Occupancy.
E. Maintenance: It shall be the responsibility of the owners and their agents to insure
maintenance of project landscaping approved in accordance with the Overlay Zone
requirements. This is to include, but is not limited to, irrigation and mulching of planting
areas, replacing dead, diseased, or overgrown plantings with identical varieties or a
suitable substitute, and keeping the area free of refuse, debris, rank vegetation and weeds.
F. Changes After Approval: No landscaping which has been approved by the Commission
may later be materially altered, eliminated or sacrificed, without first obtaining further
Commission approval. However, minor alterations in landscaping may be approved by
the Director in order to conform to specific site conditions.
G. Inspection: The Director shall have the authority to visit any tract within the U.S.
Highway 31 Overlay Zone to inspect the landscaping and check it against the approved
plan Oil file.
23B.10.04 Protection of Existing Trees:
Sites with existing trees or stands of trees should make reasonable efforts to protect and
incorporate them into the overall site design. The Landscape Plan must preserve not less than
seventy percent (70 of all trees that are:
A. nine -inch (9 DBH or larger, and
Chapter 23B: US Highway 31 Corridor Overlay Zone
23B -12
as adopted per Z -340; as amended per Z- 365 -01; Z- 382 -02; Z- 415 -03; Z- 453 -04; Z- 511 -07: Z- 512 -07
Autumn 2007 v]
CITY OF CARMEL ZONING ORDINANCE
B. located within the Greenbelt, Planting Strips and perimeter buffering.
23B.10.05 Waivers:
The Plan Commission may grant a waiver to the dimensional and quantitative standards of this
Section 23B.10, by not greater than thirty -five percent (35 consistent with requirements set
forth in Section 23B.02(G).
23B.11 Public Art.
Public art that is included as part of a Development Plan shall be displayed in a location that is visually
accessible to the public and visible from either U.S. Highway 31, Pennsylvania Street, Range Line Road.
or Illinois Street/Meridian Corners Boulevard.
23B.12 Parking Requirements.
A. Except as provided in Paragraph B. there shall be no (0) parking between the U.S. 31 right-of-
way and the front build -to line of the building.
(1
(4)
(5)
The required number of parking spaces is established. in Chapter 27: Additional Parking
Loading Regulations, depending upon the zoning and intended land use.
(2) There shall be an appropriate number of parking spaces reserved for use by handicapped
individuals, per State and Federal requirements.
Direct, articulated pedestrian access shall be provided from the street to the building's
primary entrance.
A bicycle parking area should be provided for each building.
Above grade, structured parking facilities shall have on all sides architectural features
that are compatible with the principal building(s) with which they are associated.
(3)
B. Waivers:
The applicant may request a Plan Commission Waiver to the dimensional and quantitative
standards of this Section 23B.12, by not greater than thirty -five percent (35 consistent with
requirements set forth in Section 23B.02(G).
23B.13 Lighting Requirements.
A. A Site Lighting Plan shall be submitted along with any DP or ADLS plan. The Site Lighting Pian
shall include the type, standards, layout, spread intensity of all site lighting, including.:
(1) parking lot and service/storage area Lighting;
(2) architectural display lighting;
(3) security lighting;
(4) lighting of pedestrian and bicycle ways;
(5) architectural and landscape lighting.
All site lighting shall be coordinated throughout the project and be of uniform design, color and
materials.
Chapter 23B: US Highway 31 Corridor Overlay Zone
23B -13
as adopted per Z -340; as amended per Z- 365 -01; Z-382-02; Z- 415 -03; Z- 453 -04; Z- 511 -07; Z- 512 -07
Autumn 2007 v1
C. The maximum height of light standards shall not exceed the building height proposed, or twenty
five (25) feet, whichever is less. However, when Light standards abut or fall within ninety (90)
feet of a residential use, they shall not exceed fifteen (15) feet.
D. All exterior architectural, display, decorative and sign Iighting shall be generated from concealed,
low level Iight fixtures.
E. The average illumination for site lighting shall be a maximum of three (3) footcandles.
F. All site lighting shall be designed to not exceed 0.3 footcandle at the property Iine in business or
manufacturing districts, and 0.1 footcandle at the property line of adjoining residential uses.
G. Waivers:
The applicant may request a Plan Commission Waiver to the dimensional and quantitative
standards of this Section 23B.1 by not greater than thirty -five percent (35 consistent with
requirements set forth in Section 23B.02(G).
23B.14 Bicycle and Pedestrian Access.
The DP shall include specific provisions for incorporating pedestrian and bicycle access. circulation and
amenities into the development. Such bicycle and pedestrian access considerations shall include linking
pedestrian and bicycle facilities to adjacent development, the overall U.S. 31 Corridor, and, the Carmel
community's overall system of bicycle and pedestrian trails and routes.
23B.15 Access to Individual Tracts.
As U.S. Highway 31 is a limited access highway, and as access to individual tracts along this highway is
either not in existence or not clearly defined in many cases, access roads will need to be built. In order to
preserve the aesthetic benefits provided by the greenbelt, access roads shall be provided at the rear of all
tracts, whenever possible. Access roads to contiguous tracts shall be coordinated so as to form one main
access road serving adjoining developments. These roads should be designed so as to funnel traffic onto
major arterial roads rather than into residential areas and roads that may adjoin or be near this Overlay
Zone. Bicycle and pedestrian access shall likewise be coordinated with vehicular access, greenbelt design
and parking.
23B.16 Other Requirements.'
9 Section 23B.16 amended per Ordinance No. Z- 365 -01; Z- 511-07.
CITY OF CARMEL ZONING ORDINANCE
23B.16.01 Outside Storage of Refuse:
Unenclosed storage of refuse (whether or not in containers) or display of merchandise shall not be
permitted on any project. All refuse shall be contained completely within the Principal Building
or Accessory Building. Any Accessory Building for refuse storage shall be:
A. Designed to include a roof structure; and,
B. Architecturally compatible with the Principal Building.
23B.16.02 Loading and Unloading Areas:
Loading and Unloading Berths or Bays shall be designed as specified in the underlying primary
zoning district(s), except that any Loading and Unloading Berth or Bay shall not be oriented to
U.S. Highway 31. Loading and Unloading Berths or Bays oriented toward any other public right-
Chapter 23B: US Highway 31 Corridor Overlay Zone
23B -14
as adopted per Z -340; as amended per Z- 365 -01; Z- 382 -02; Z-415-03, Z-453-04: Z- 511 -07; Z -512 -07
Autumn 2007 vl
CITY OF CARMEL ZONING ORDINANCE
of -way, shall be. landscaped /screened using masonry wall(s), plant material, or a combination
thereof, subject to Commission approval.
23B.16.03 Additions to Existing Residential:
Uses and Detached Buildings accessory to single- family dwelling units are permitted provided
that the use and /or structure meets the requirements of the underlying primary zoning district.
Additionally, any detached structure:
A. Must be of compatible architectural design with the Principal Building;
B. Must be set back a minimum of thirty (30) feet from the right -of -way line nearest to and
running most parallel with U.S. Highway 31; and be accompanied by the minimum
applicable perimeter buffer per Section 26.04: Perimeter Buffering.
C. Waivers:
The applicant may request a Pian Commission Waiver to the dimensional and
quantitative standards of this Section 23B.16.03, by not greater than thirty -five percent
(35 consistent with requirements set forth in Section 23B.02(G).
23B.16.04 Perimeter Fences. Perimeter Fences shall be permitted for privacy, buffering and
screening purposes and shall be identified on the DP. When used, perimeter fences shall be
constructed of wood and masonry materials, be solid as viewed from any angle and shall be at
least eight feet (8') in height. Primarily cedar fences are permitted; however, twenty -four inch
(24 wide red brick or stone columns shall be incorporated into the fence design at least every
twenty -six feet (26'). Alternatively, metal fencing with landscaping is permitted such that 100%
landscaping screen is achieved within three (3) years. All fences shall be properly maintained and
repaired, as necessary.
23B.17 Reservation of Land for Pending State Highway Improvements.
A. In addition to the development requirements specified in Sections 23B.03 through
23B.08, a DP must reserve for acquisition by the State of Indiana all land that the State
expects to need for pending improvements to U.S. Highway 31, as shown on plans
developed for the Indiana Department of Transportation by the consulting firm
Bernardin, Lochmuelier and Associates for the Major Investment Study (1997), or, as
shown on plans from the Parsons Transportation Group prepared for the Environmental
Impact Study. An applicant must notify in writing the Commissioner of the Indiana
Department of Transportation (INDOT) of any proposed DP that includes land within the
projected right -of -way for those pending improvements.
B. Whenever an applicant believes that the reservation of such land as required by
Paragraph A would result in the loss of all reasonable and beneficial use of or return
from the applicant's property, then the applicant may request an Economic Hardship
Exception from the terms of Paragraph A, pursuant to the Plan Commission's Rules of
Procedure.
to Section 238.17 amended per Ordinance No. Z- 453 -09, §dk -dn.
Chapter 23B: US Highway 31 Corridor Overlay Zone
23B -15
as adopted per Z -340; as amended per Z- 365 -01; Z- 382 -02: Z- 415 -03; Z- 453 -04; Z- 511 -07: Z- 512 -07
Autumn 2007 v l
CITY OF CARMEL ZONING ORDINANCE
C. Upon receipt of a request for an Economic Hardship Exception, the Commission shall
hold a public hearing on such request. The hearing may not be held until at least ninety
(90) days after the applicant has notified the Commissioner of INDOT of the proposed
DP as described above in Paragraph A. In determining whether to grant an Economic
Hardship Exception, the Commission may consider the following criteria:
(1) the applicant's knowledge of the State's plans at the time of acquisition:
(2) the current level of economic return on the property, including the date of
purchase, the purchase price. income from the property, any remaining
mortgage debt, real estate taxes, and recent appraisals of the property;
(3) any recent offers for sale or purchase, including offers to purchase which the
State itself may have made;
(4) the feasibility of profitable alternative uses for the property; and,
(5) whether the State can reasonably be expected to provide just compensation to
the applicant for any taking of the applicant's property within one (1) year from
the date of the Commission's decision.
D. An applicant for an Economic Hardship Exception must prove, by clear and convincing
evidence, both:
(1) that the existing use (if any) of the applicant's property is economically
infeasible; and,
(2) that, if the terms of Paragraph A are applied to the property, the sale, rental, or
rehabilitation of the property will not be possible, resulting in the property not
being capable of earning any reasonable economic return. The Commission's
decision must be in writing and must contain the factual findings that constitute
the basis for its decision, consistent with the criteria in Paragraph C.
Chapter 23B: US Highway 31 Corridor Overlay Zone
23B -16
as adopted per Z -340; as amended per Z- 365 -01: Z- 382 -02; Z- 415 -03; Z- 453 -04; Z- 511 -07; Z- 512 -07
Autumn 2007 v]
Ordinance No.
.Docket No.
Council Approval
Effective Date
Sections Affected
Z -289
6 December 1993
Z -323
3 Se.tember 1997
Z -324
15 December 1997
Z -334
7 June 1999
Z -340
l Ma 2000
Z- 365 -01
76 -Ola OA
November 5, 2001
November 27, 2001
23B.10.2(B)(5);
23B.]0.2(F);
23B.16.3(B)
Z- 382 -02
38 -02 OA
July 15, 2002
July 15, 2002
23B.3; 23B.8;
2313.8.1; 23B.8.2;
23B.8.3
Summer 2002 v 1
Z- 415 -03
39 -02 OA
November L7, 2003
November 18, 2003
23B.03; 23B.04;
23B.05
Autumn 2003 v1
Z- 453 -04
150 -02 OA
August 16, 2004
August 16, 2004
23B.00; 23B.02;
23B.08; 23B.17
Summer 2004 vl
Z- 511 -07
07020020 OA
November 19, 2007
November 20, 2007
23B.09; 23B.16
Autumn 2007 v l
Z- 512 -07
07090002 OA
December 17, 2007
December 17, 2007
23B.05
Autumn 2007 v1
CHAPTER 23B: U.S. HIGHWAY 31 CORRIDOR OVERLAY ZONE
AMENDMENT LOG
CITY OF CARMEL ZONING ORDINANCE
Chapter 23B: US Highway 31 Corridor Overlay Zone
23B -17
as adopted per Z -340; as amended per Z- 365 -01; Z- 382 -02; Z- 415 -03; Z- 453 -04; Z- 511 -07; Z- 512 -07
Autumn 2007 v 1
CARMEL CITY CODE
CHAPTER 10: ZONING SUBDIVISIONS
ARTICLE 1: ZONING CODE
CITY OF CARMEL ZONING ORDINANCE
CARMEL ZONING ORDINANCE
CHAPER 24: DEVELOPMENT PLAN AND ARCHITECTURAL DESIGN, EXTERIOR LIGHTING,
LANDSCAPING S1GNAGE REGULATIONS
24.00 Development Plan and Arrhitertural Design Exterior Lighting Tandscapine R Signage
Regtilation
24.01 Purpose intent
24.02 Development Plan
24.03 Architectural Design Exterior I ,fighting 1,andsrapin R& Sign e
24.99 Proredures for Submission and Review
24.00 Development Plan and Architectural Design. Exterior Lighting, Landscaping fi
,Sri' gr Regulations.
24.01 Purpose Intent.
Development Plan (DP) and /or Architectural Design. Exterior Lighting, Landscaping Signage (ADLS)
approval by the Commission shall be necessary prior to the establishment of any Use or Building, so cited
by the district regulations herein, or the issuance of an Improvement Location Permit for said Use or
Building. Development Plan and /or Architectural Design, Exterior Lighting, Landscaping Signage
applications shall generally be considered favorably by the Commission.
24.02 J)evelopment Plan.
A. Development Requirements
The Commission shall review a Development Plan application to determine if the Development
Plan satisfies the development requirements specified herein and in the applicable zoning district.
The Commission's review shall include but not be Iimited to the following items:
1. Compatibility of the development with surrounding land uses.
a. Consistency with the policies for the district as set forth in the Comprehensive
Plan;
b. Surrounding zoning and existing land use;
c. Compatibility with existing platted_ residential uses; and
d. Compatibility of proposed project with existing development within the district.
2. Availability and coordination of:
a The means and impact of water supply techniques;
b. The means and impact of sanitary sewers;
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c. On -site and off -site surface and subsurface storm water drainage including
drainage calculations: and
d. Other on -site and off -site utilities.
CITY OF CARMEL ZONING ORDINANCE
3. Management of traffic in a manner that creates conditions favorable to health. safety,
convenience, and the harmonious development of the community such that:
a. The design and location of proposed street and highway access points minimize
safety hazards and congestion;
b. The capacity of adjacent streets and highways is sufficient to safely and
efficiently accept traffic that will be generated by the new development; and
c. The entrances, streets, and internal traffic circulation facilities in the
Development Plan are compatible with existing and planned streets and adjacent
developments.
4. Building setback lines.
5. Building coverage.
6. Building separation.
7. Vehicle circulation.
a. Consistency with the policies for the district as set forth in the Thoroughfare
Plan;
b. Dedication of streets and rights -of -way, and /or reservation of land to be sold to
governmental authorities for future development of streets and rights -of -way.
In developments that adjoin or include existing streets that do not conform to
the minimum right-of-way dimensions as established by the Thoroughfare Plan,
the developer shall dedicate additional width along either one or both sides or
such streets of inadequate width so as to bring them up to standards, provided
the area to be used for widening, is owned by the subdivider or under his control;
c. Location and character of streets;
d. Access to public streets;
e. Driveway and curb cut locations in relation to other sites;
f. Location and character of curbs and gutters;
g. General vehicular traffic;
h. Location and character of vehicle parking facilities;
i. Vehicular internal site circulation;
S. Pedestrian and bicycle circulation.
a. Consistency with the policies for the district as set forth in the Thoroughfare
Plan;
b. Location and character of sidewalks, pedestrian trails, and bicycle paths;
c. Access to public sidewalks and multi -use paths;
d. General pedestrian and bicycle traffic;
e. Location and character of bicycle parking and storage facilities;
f. Pedestrian and bicycle internal site circulation.
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9. Site landscaping and screening.
10. Height, scale. materials, and style of improvements.
11. Project signage.
12. Recreation space.
13. Exterior lighting.
14. Other requirements considered appropriate by the legislative body:
a. Existing site features, including topography and wooded areas;
b. Zoning on site;
c. Special and general easements for public or private use;
d. Protective restrictions and /or covenants.
B. Plan 'Documentation Siippgrtino information
1. The location and character of the following:
a. Existing and proposed principal structures and accessory structures.
i. Exterior Elevations Renderings Fir Exterior elevations, renderings
depicting the exterior materials to be used, and a list of exterior
materials relating to all buildings and other structures proposed in the
area subject to Development Pian approval, together with Architectural
Design, Exterior Lighting, Landscaping and Signage Plans, shall be
submitted to the Commission in order to better define the intent of the
proposed development. The architectural design should reflect a
unified design which is in character and proper relationship with the
surrounding area. Unless required by the Commission, this Section
shall not apply to detached, single- family residences.
b. Utilities.
ii. Site Plan
CITY OF CARMEL ZONING ORDINANCE
(a) Location of special and general easements for public or
private use;
(b) Building setback lines;
(c) Building coverage;
(d) Building separation.
c. Signage.
i. ,Sign Plan All exterior signage proposed to be located in the
development, subject to approval and obtaining of a Sign Permit prior
to erection under the requirements of 'the Sign Ordinance, shall be
shown and conformance or nonconformance with said Ordinance shall
be so noted.
d. Landscaping.
i. landscape Plan A detailed plan of the existing and proposed
landscaping showing location, kind and- caliper measurement size of
trees, shrubbery and screening materials, as appropriate and required
by the Plan Commission.
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2
The nature and intensity of uses in the development.
CITY OF CARMEL ZONING ORDINANCE
3. The condition and size of public thoroughfares and parking, vehicle, and pedestrian
facilities.
a. Traffic. Study A traffic study to include a comparative analysis of present
volumes on streets bordering the development or with a direct bearing on the
development versus potential capacity volumes of those streets. Consideration
should be made of the effect of the proposed development and the traffic it
would engender, particularly at peak periods. A Circulation Plan should be
included for all existing and proposed streets, both public and private, which
will show recommendations for controlling, signalizing, channelizing, parking.
s toring and warning both pedestrian and vehicular traffic.
4. The location and capacity of drainage facilities and sewer systems serving the
development.
a. Drainage -Plan Detailed drawings and Construction Plans for all elements of the
storm water drainage system, including curbs and gutters, storm sewers, open
drainage waterways, drain tiles, culverts, retention reservoirs and other
necessary appurtenances, shall be included. Among the necessary items of
information are locations, grades, sizes, capacity and typical cross sections of
the Drainage Plan elements. A report shall be included concerning:
i. Legal drains located in the development or relating to the development,
ii. The flooding potential of the development,
iii. The design of the .storm water system to deal with such flooding
potential, and
iv. The expected impact of the development's storm water runoff on any
receiving stream or downstream property.
Where flood plains as indicated by FP, FF or FW Districts herein, are involved,
a statement from the Indiana Natural Resources Commission to the extent it has
jurisdiction shall be required with respect to location of fioodways and flood
plains.
5. Other information considered appropriate by the legislative body.
a. Metes Rounds Description An accurate metes and bounds description of the
boundary of the tract that is subject to Final Development Plan approval.
b. Covenants Conditions Restrictions A List of the covenants. conditions, and
restrictions, if any, which will run with the land and affect the use of the
property within the area subject to Final Development Plan approval. The
approved covenants shall be recorded with the Recorder of Hamilton County,
Indiana.
c. "Erosion Control R Sedimentation Plan A statement and plan setting forth the
method of controlling erosion and sedimentation before, during and following
development and construction, e.g., temporary seeding, sediment detention
basins, erosion prevention devices and other similar means, that meet the
Hamilton County Soil Water Conservation District guidelines for urban
development.
d. I .iuhtinf Plan Specifics are required concerning the easements, locations. size,
height, type, intensity and illuminance of proposed street and outdoor lighting.
e. Service Reports Service reports or statements. as necessary. may include but
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CITY OF CARMEL ZONING ORDINANCE
Construction Timetable A construction timetable or schedule shall include the
approximate timing of completion and /or occupancy of the improvements
proposed in the area subject to Development Plan approval.
Deeds of Dedication Certification of dedication of streets, rights -of -way and
other public property to the proper authorities, except so much thereof as are
intended to remain private.
Certificate of Commission Approval Certificate of Approval by the
Commission shall be on each and every sheet of the Development. Plan.
not be limited to the following sources:
i. City, County or State highway departments;
ii. Indiana Natural Resources Commission;
iii. Board of Public Works Sr_ Safety;
iv. member organizations of the Technical Advisory Committee.
f. Other Construction Plans Other specific Construction Plans shall be submitted
as necessary detailing information on, but not limited to, streets, Iighting,
sanitary sewer system, storm water drainage system, curbs and gutters.
sidewalks and the related appurtenances. The required information shall include
locations, grades, sizes, capacities, typical cross sections and so forth. These
plans shall be drawn by a Registered Land Surveyor or a Professional Engineer
Iicensed to do business in the State of Indiana in accordance with State Statutes.
g•
h.
24.03 Architectural Design. Exterior Lighting, Landscaping and Sian e
A. Development Requirements
The Commission shall review an Architectural Design, Exterior Lighting, Landscaping and
Signage application to determine if the Architectural Design, Exterior Lighting, Landscaping
and /or Signage satisfy the development requirements specified herein and in the applicable zoning
district. The Commission's review shall include but not be limited to the following items:
I. Compatibility of the development with surrounding land uses.
a. Consistency with the policies for the district as set forth in the Comprehensive
Plan;
b. Surrounding zoning and existing land use;
c. Compatibility with existing platted residential uses; and
d. Compatibility of proposed project with existing development within the district.
Pedestrian and bicycle circulation.
a. Consistency with the policies for the district as set forth in the Thoroughfare
Plan;
b. Location and character of sidewalks, pedestrian trails, and bicycle paths;
c. Access to public sidewalks and multi -use paths;
d. General pedestrian and bicycle traffic;
e. Location and character of bicycle parking and storage facilities;
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CITY OF CARMEL ZONING ORDINANCE
f. Pedestrian and bicycle internal site circulation.
3. Site landscaping and screening.
4. Height, scale, materials, and style of improvements.
5. Project signage.
6. Exterior lighting.
7. Other requirements considered appropriate by the legislative body:
a. Existing site features, including topography and wooded areas;
b. Zoning on site;
c. Special and general easements for public or private use;
d. Protective restrictions and /or covenants.
B. Plan Donny-win R' Supporting Information
1. The location and character of the following:
a. Existing and proposed principal structures and accessory structures.
i. Exterior Elevation' Renderinnr' Fir Exterior elevations, renderings
depicting the exterior materials to be used, and a list of exterior
materials relating to all buildings and other structures proposed in the
area subject to Architectural Design, Exterior Lighting, Landscaping
and Signage approval, together with Plans, shall be submitted to the
Commission in order to better define the intent of the proposed
development. The architectural design should reflect a unified design
which is in character and proper relationship with the surrounding area.
Unless required by the Commission, this Section shall not apply to
detached, single- family residences.
ii. Site Plan
b. Utilities.
(a) Location of special and general easements for public or
private use;
(b) Building setback lines;
(c) Building coverage;
(d) Building separation.
Signage.
i. Sian Plan All exterior signage proposed to be located in the
development, subject to approval and obtaining of a Sign Permit prior
to erection under the requirements of .the Sign Ordinance, shall be
shown and conformance or nonconformance with said Ordinance shall
be so noted.
d. Landscaping.
i. Landscape Plan A detailed plan of the existing and proposed
landscaping showing location, kind and caliper measurement size of
trees, shrubbery and screening materials, as appropriate and required
by the Plan Commission.
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CITY OF CARMEL ZONING ORDINANCE
e. Exterior Lighting.
i. Li ihting Plan. Specifics are required concerning the easements,
locations, size, height, type, intensity and illuminance of proposed
street and outdoor Lighting.
The nature and intensity of uses in the development.
3. Other information considered appropriate by the legislative body.
a. Covenants Conditions k Restrictions A list of the covenants. conditions, and
restrictions, if any, which will run with the land and affect the use of the
property within the area subject to Architectural. Design, Exterior Lighting,
Landscaping and Signage approval. The approved covenants shall be recorded
with the Recorder of Hamilton County, Indiana.
b. Other Construction Plans Other specific Construction Plans shall be submitted
as necessary detailing information on, but not limited to, streets, lighting,
sanitary sewer system, storm water drainage system, curbs and gutters,
sidewalks and the related appurtenances. The required information shall include
locations, grades, sizes, capacities, typical cross sections and so forth. These
plans shall be drawn by a Registered Land Surveyor or a Professional Engineer
licensed to do business in the State of Indiana in accordance with State Statutes.
24.99 Procedures for Submission and Review.
A. Development Plan
1. Pre Application Consultation with the Director
Applicants shall meet with the Director to review the zoning classification of their site,
review the regulatory ordinances and materials, review the procedures and examine the
proposed use and development of the property. The Director shall aid and advise the
applicant in preparing his application and supporting documents as necessary.
2. Application
a. Director The applicant shall submit to the Director:
i. Two (2) copies of the written application form;
ii. Two (2) copies of the Existing Features Site Analysis Plan;
iii. Two (2) copies of the Development Plan;
iv. As well as two (2) copies of all necessary supporting documents and
materials.
b. Technical Advisory Committee The applicant shall submit the following to the
members of the Technical Advisory Committee (TAC):
i. One (1) copy of the written application form;
ii. One (1) copy of the Existing Features Site Analysis Plan;
iii. One (1) copy of the Development Plan;
iv. As well as one (1) copy of all necessary supporting documents and
materials.
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d. ,Submittal to the Commission
CITY OF CARMEL ZONING ORDINANCE
c. initial Review of the Application and SnpportinE Dncnments and Materials
i. Director. Following the receipt of the written application.
Development Plan. and necessary supporting documents and /or
materials. the Director shall review the materials for the sole purpose of
determining whether the application is complete and in technical
compliance with all applicable ordinances, laws and regulations.
ii. Technical Advisory Committee Following the receipt of the written
application, Development Plan, and necessary supporting documents
and /or materials, the Director shall place the application on the agenda
of the Technical Advisory Committee.
If the materials submitted by the applicant are not complete or do not
comply with the necessary legal requirements, the Director shall inform
the applicant of the deficiencies in said materials.
Unless and until the Director formally accepts the application as
complete and in legal compliance, it shall not be considered as formally
filed for the purpose of proceeding to succeeding steps toward approval
as hereinafter set forth.
ii. If the materials submitted by the applicant are determined to be
complete and in compliance, the Director shall forward the materials to
-the Commission. Within thirty (30) days of the formal acceptance of
the Development Plan application, the Director shall formally file the
application by:
(a) Assigning a docket number;
(b) Setting a date and time for a public hearing: and
(c) Placing it upon the agenda of the Commission according to
the Commission's Rules of Procedure.
iii. The applicant shall file for each Commission member a copy of the
Existing Features Site Analysis Plan, the Development Plan, and
supporting documents and /or materials pursuant to the Commission's
Rules of Procedure.
Fees See Section 29.06.
4. Pnhlir Notice The applicant shall be responsible for the cost and publication of the
required published legal notification of the public hearing. The applicant shall also
notify all interested parties and property owners as required by the Commission's Rules
of Procedure.
5. Public Hearin€ by the Commission The conduct of the public hearing shall be in
accordance with the Commission's Rules of Procedure. Following the public hearing, the
Development Plan shall be reviewed by the Commission.
6. Review The Commission shall review a Development Plan to determine if the
Development Plan:
a. Is consistent with the Comprehensive Plan; and
b. Satisfies the development requirements specified in the Zoning Ordinance.
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S. Amendment.
a. Requirements. See Section 24.02.
b. Fees. See Section 29.06.
c. Public Notice. See §A(4).
d. Public Hearing. See §A(5).
e. Review. See ¢A(6).
CITY OF CARMEL ZONING ORDINANCE
7. Approval.
a. In determining whether approval shall be granted, the Commission shall
consider generally if the Development Plan:
i. Creates and maintains a desirable, efficient and economical use of land
with high functional and aesthetic value, attractiveness and
compatibility of land uses, within the District and with adjacent uses;
ii. Provides sufficient and well- designed access. parking and loading
areas:
iii. Provides traffic control and street plan integration with existing and
planned public streets and interior access roads;
iv. Provides adequately for sanitation, drainage and public utilities; and
v. Allocates adequate sites for all uses proposed, the design, character,
grade, location and orientation thereof being appropriate for the uses
proposed, logically related to existing and proposed topographical and
other conditions, and consistent with the Comprehensive Plan.
In determining whether approval shall be granted, the Commission may:
Impose conditions on the approval of a Development Plan if the
conditions are reasonably necessary to satisfy the development
requirements specified in the Zoning Ordinance for approval of the
Development Plan.
ii. Provide that approval of a Development Plan is conditioned on the
furnishing to the Commission of a bond or written assurance that:
(a) Guarantees the timely completion of a proposed public
improvement in the proposed development; and
(b) is satisfactory to the Commission.
iii. Permit or require the owner of real property to make a written
commitment.
c. Time Limit An approved Development Plan shall be valid for two (2) years
from the date of approval. Upon written application to the Director before the
expiration of said approval, and upon good cause shown, the Director may
extend the approval for a period not to exceed six (6) months.
d. If the Development Plan is substantially or materially altered in any way,
resubmission to the Commission is required.
e. If a Development Plan petition is denied, the Commission shall provide the
applicant with a written copy of the findings -of -fact, if requested.
f. and other matters relevant to review.
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f. Approval. See §7 above.
g. and other matters relevant to review.
,Submittal to the Commission
CITY OF CARMEL ZONING ORDINANCE
B. Architectural Design Exterior I,inhtina l;andsrapirt X Sicmatre
1. Pre Application Consultation with the Director
Applicants shall meet with the Director to review the zoning classification of their site,
review the regulatory ordinances and materials, review the procedures and examine the
proposed use and development of the property. The Director shall aid and advise the
applicant in preparing his application and supporting documents as necessary.
Application.
a. Director The applicant shall submit to the Director:
i. Two (2) copies of the written application form;
ii. Two (2) copies of the Existing Features Site Analysis Plan;
iii. Two (2) copies of the Exterior Elevations and /or Renderings;
iv. Two (2) copies of the Lighting Plan;
v. Two (2) copies of the Landscape Plan;
vi. Two (2) copies of the Signage Plan;
vii. As well as two (2) copies of all necessary supporting documents and
materials.
Technical Advisory Committee The applicant may be required to submit the
following to the members of the Technical Advisory Committee (TAC):
i. One (1) copy of the written application form;
ii. One (1) copy of the Existing Features Site Analysis Plan;
iii. One (1) copy of the Exterior Elevations and /or Renderings;
iv. One (1) copy of the Lighting Plan;
v. One (1) copy of the Landscape Plan;
vi. One (1) copy of the Signage Plan;
vii. As well as one (1) copy of all necessary supporting documents and
materials.
c. initial Review of the Application and Supporting Documents and Materials
i. Director Following the receipt of the written application, Plans, and
necessary supporting documents and /or materials, the Director shall
review the materials for the sole purpose of determining whether the
application is complete and in technical compliance with all applicable
ordinances, laws and regulations.
ii. Technical Advisory Committee Following the receipt of the written
application, Plans, and necessary supporting documents and /or
materials, the Director shall place the application on the agenda of the
Technical Advisory Committee.
i. If the materials submitted by the applicant are not complete or do not
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comply with the necessary legal requirements. the Director shall inform
the applicant of the deficiencies in said materials.
Unless and until the Director formally accepts the application as
complete and in legal compliance, it shall not be considered as formally
filed for the purpose of proceeding to succeeding steps toward approval
as hereinafter set forth.
ii. If the materials submitted by the applicant are determined to be
complete and in compliance, the Director shall forward the materials to
the Commission. Within thirty (30) days of the formal acceptance of
the Architectural Design, Exterior Lighting, Landscaping and Signage
application, the Director shall formally file the application by:
(a) Assigning a docket number;
(b) Setting a date and time for Commission review; and
(c)
3. Fees See Section 29.06.
CITY OF CARMEL ZONING ORDINANCE
Placing it upon the agenda of the Commission according to
the Commission's Rules of Procedure.
iii. The applicant shall file for each Commission member a copy of the
Existing Features Site Analysis Plan, the Plans, and supporting
documents and /or materials pursuant to the Commission's Rules of
Procedure.
4. Review The Commission shall review an ADLS to determine if the ADLS:
a. Is consistent with the Comprehensive Plan; and
b. Satisfies the development requirements specified in the Zoning Ordinance.
5. Approval.
a. In determining whether approval shall be granted, the Commission shall
consider generally if the Architectural Design, Exterior Lighting, Landscaping
and Signage:
i. Creates and maintains a desirable, efficient and economical use of' land
with high functional and aesthetic value, attractiveness and
compatibility of land uses, within the District and with adjacent uses;
ii. Provides sufficient and well- designed access. parking and loading
areas; and
iii. Allocates adequate sites for all uses proposed, the design, character,
grade, location and orientation thereof being appropriate for the uses
proposed, logically related to existing and proposed topographical and
other conditions, and consistent with the Comprehensive Plan.
b. In determining whether approval shall be granted, the Commission may:
i. Impose conditions on the approval of an Architectural Design, Exterior
Lighting, Landscaping and Signage if the conditions are reasonably
necessary to satisfy the development requirements specified in the
Zoning Ordinance for approval of the Architectural Design, Exterior
Lighting, Landscaping and Signage.
ii. Permit or require the owner of real property to make a written
commitment.
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CITY OF CARMEL ZONING ORDINANCE
c. Time l imit An approved Architectural Design. Exterior Lighting, Landscaping
and Signage shall be valid for two (2) years from the date of approval. Upon
written application to the Director before the expiration of said approval. and
upon good cause shown. the Director may extend the approval for a period not
to exceed six (6) months.
d. If the Architectural Design, Exterior Lighting. Landscaping and /or Signage is
substantially or materially altered in any way, resubmission to the Commission
is required.
e. and other matters relevant to review.
6. Amendment.
a. Requirements. See Section 24.03.
b. Fees. See Section 29.06.
c. Review. See ¢A(6).
d. Approval. See §7 above.
e. and other matters relevant to review.
C. Appeals
1. Authority The Commission may hear, review and_determine appeals taken from any
order. requirements, decision or determination made by a Hearing Officer or Committee
authorized to approve the Development Plan or any .portion thereof.
2. Filing Deadline All appeals shall be filed with the Director within thirty (30) days of the
action to be appealed.
3. Appeal Procedure
a. Consultation with the Director and Application Appellants shall meet with the
Director in order to examine the nature of the proposed appeal, review the
regulatory ordinances and materials, and review the appeal procedures. The
Director shall aid the appellant in preparing his application and supporting
documents as necessary. The appellant shall then submit two (2) copies of the
written application form and all necessary supporting documents and materials.
b. initial Review of the Application and Supporting Documents and Materials by
the Director. Submission to the Commission Following the receipt of the
written appeal application and necessary supporting documents and materials by
the Director, he shall then review the materials solely for the purpose of
determining whether the application is complete, is in technical compliance with
all applicable ordinances, laws and regulations and is to be forwarded to the
Commission. If the materials submitted by the appellant are not complete, or do
not comply with the necessary legal requirements, the Director shall inform the
appellant of the deficiencies in his materials. Unless and until the Director
formally accepts the appeal application as complete and in legal compliance it
shall not be considered as formally filed for the purpose of proceeding to the
succeeding steps toward Commission consideration of the appeal as hereinafter
set forth. The application is formally fled when it is placed upon the
Commission agenda by the Director according to the Commission's Rules of
Procedure.
c. Public Hearin] by the Commission. Once the Director has accepted and filed
the appeal application with the Commission, he shall assign a docket number
and set a date and time for a public hearing as required by the Rules of
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CITY OF CARMEL ZONING ORDINANCE
Procedure of the Commission. The appellant shall be responsible for the cost
and publication of the required published legal notification of the public
hearing. The appellant shall also notify all interested parties and property
owners as required by the Rules of Procedure of the Commission. The conduct
of the public hearing shall be in accordance with the Commission's Rules of
Procedures.
d. Approval or Denial of the Appeal by the Commission Following the public
hearing on the appeal, the Commission shall approve, approve with conditions.
or deny the appeal. In exercising its powers, the Commission may reverse or
affirm, wholly or partly, or may modify the order, requirement decision or
determination appealed as in its opinion ought to,be done on the premises, and
to that end shall have all the powers of the Hearing Officer or Committee from
whom the appeal is taken. Upon reaching a decision on the appeal request. the
Commission shall enter into its records the reasons for its decision and shall
provide the appellant with a copy of said reasons. if requested. The
Commission shall inform the Director and the appellant of its decision,
including all conditions contained as a part thereof. All further actions taken by
the appellant or the Director concerning the item that was appealed, including
the issuance of Improvement Location Permits, shall be subject to said ruling of
the Commission.
4. ,Stay of Work
When an appeal from Hearing Officer or Committee has been filed with the Commission,
all proceedings and work on the premises upon which the appeal has been filed shall be
stayed unless Hearing Officer or Committee from whom the appeal was taken shall
certify to the Commission that, by reason of facts stated in the certificate. a stay would
cause immediate peril to Life or property. In such case, proceedings or work shall not be
stayed except by a restraining order which may be granted by the Commission or by a
court of competent jurisdiction, on notice to Hearing Officer or Committee from whom
the appeal is taken and the owner or proprietor of the premises affected and on due cause
shown. After the owner, his agent and /or a person or corporation in charge of the work
on the premises affected has received notice, the Director shall have full power to order
such work discontinued or stayed and to call upon the police power of the City or County
to give full force and effect to the order.
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Ordinance No.
Docket No.
Council Approval
Effective Date
Sections Affected
Z- 365 -01
76 -01 a OA
November 5. 2001
November 27. 2001
24.02.04
Z- 453 -04
150-02 OA
August 16, 2004
August 16. 2004
Repealed Ch. 24;
Adopted as DP/
ADLS Regulations
Summer 2004 vl
CHAPTER 24: PLANNED DISTRICT REGULATIONS
AMENDMENT LOG
CITY OF CARMEL ZONING ORDINANCE
Chapter 24: Development Plan and Architectural Design. Exterior Lighting, Landscaping Signage
24 -14
as amended per Z- 365 -01; Z- 453 -04
Summer 2004 v l
City of Carmel
CARMEL PLAN COMMISSION
SPECIAL STUDIES COMMITTEE
TUESDAY, MARCH 3, 2009, 6:00 PM
CAUCUS ROOMS, 2 Floor
Carmel City Hall
One Civic Square
Carmel IN 46032
Members present: Wayne Haney, Woody Rider, Rick Ripma, Madeleine Torres.
Department Staff in attendance: Director Michael Hollibaugh, Christine Barton Holmes,
Rachel Boone; Legal Counsel John Molitor.
Also present: Ramona Hancock, Plan Commission Secretary.
The Special Studies Committee considered the following items:
1. Docket No. 09020013 ADLS Amend: First Merchant's Bank Signage
The applicant seeks approval for one new sign with black letters during the day and white
at night. The site is located at 11333 N. Meridian St. and is zoned B -5. Filed by Paul Reis
of Bose McKinney Evans on behalf of First Merchant's Bank.
Present for Petitioner: Paul Reis, attorney; Bill Redman, First Merchants Bank.
Overview:
Propose One Wall Sign
Sign would be black letters during the day, white at night
Logo will remain gold day and night
Sign size is 100.86 square feet; 105 square feet is allowed under Ordinance
Owner of complex is in process of amending total sign package
Owner has indicated via letter that they support sign proposed by First Merchant's Bank
Owner will return with revised sign package for 3 buildings
Before constructed and installed, a new sign package will be approved with proposed
colors
Size conforms to Ordinance as well as Logo.
Dept Report, Rachel Boone:
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Building already has established sign package
development grandfathered and will accommodate Brighthouse
Screening Committee should consider as a whole rather than one tenant
Dept supports black during day, white at night with logo
Dept preference is to keep the green color
Dept would like to move forward with this tenant
New tenants would have to follow proposed package
Owner of building considering new sign package
Committee comments:
Positive comments on the logo
Positive comments regarding proposal
Motion: Woody Rider "To approve Docket No. 09020013 ADLS Amend, First Merchant's Bank
Signage," seconded by Madeleine Torres, voted 4 -0 Motion Carried.
2. Docket No. 09020003 ADLS Amend: Bright House Communications Building
The applicant seeks approval for a new communications equipment building. The site is
located at 352 Gradle Dr and is zoned I -1 /Industrial. Filed by Joseph Scimia of Baker
Daniels, LLP for Bright House Networks, LLC.
Present for Petitioner: Joe Scimia, attorney; Bryan Conn, land use consultant; Kerry Faust,
Brighthouse Network.
Overview:
Request for amended ADLS
Brighthouse current location sw corner of Monon Trail and Second Street
Brighthouse hub being re- located to 352 Gradle Drive (relocated at request of City due to
redevelopment of Carmel City Center)
Proposed site currently consists of one, wood -frame structure consisting of 3,250 square
feet, plus parking facility
Petitioner proposes to construct an additional 1,200 square foot facility located
immediately to the west of the wood -frame structure
Current property houses general offices, switching and transmission equipment
New Site on Gradle Drive is within an existing Industrial Park
New site will not house mobile equipment
Existing and landscaping proposed
Pads, shadowbox fence, and retaining wall being constructed
HVAC is a muted gray/beige color, screened by retaining wall and landscaping
HVAC makes no more noise than typical residential unit
Petitioner will increase level of landscaping for site
Engineers and administrative staff OK with wooden shadowbox structure
Employees usually on a 12 -hour shift
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Drainage easement runs entire length of property— drainage flows west to east
County Surveyor's Office and Carmel Engineering working with site Engineer to reduce
storm water runoff
Department Report, Christine Barton Holmes:
No outstanding issues
Industrial use located in I -1 (no standards)
Petitioner is screening site with shadow -box fencing and landscaping
Concerns with possible noise from HVAC units and visual impact addressed
Bicycle racks not necessary at this location
Motion: Woody Rider "to approve Docket No. 09020003 ADLS Amend, Bright House
Communications Building," seconded by Madeleine Torres, voted 4 -0 Motion Approved.
3. Docket No. 08080020 ADLS: Hotel Indigo
The applicant seeks design approval for a 5 -story hotel building. The site is located
northeast of 131 St. US 31 and is zoned B -6 /Business within the US 31 Overlay. Filed
by Jay Gibson of CDG Consulting, Inc.
Present for Petitioner: Jay Gibson, (Civil Engineer responsible for site work)
CDEG Consulting, Inc., Jovan Rayle. Architect.
Overview:
Petitioner has not yet received final construction plan approval from Carmel Engineering
Petitioner has applied for outlet permits for stormwater drainage
Developer of overall infrastructure working with Urban Forestry to submit a tree
preservation/ mitigation plan (trees were removed by Developer prior to construction)
Petitioner is working on securing a cross parking easement
Design Changes -Jovan Rayle, Architect:
Petitioner considered alternate materials— concrete panels, additional brick, and stone
Eliminating EIFS from top and end points
Stucco not a user friendly product for this climate
Stucco freezes and cracks
Few jobs locally utilize stucco
Stucco would be constant maintenance
EIFS =•has. insulation value
EIFS reduced to 10% (used on top banding and balcony area)
Mural wall will have bar lighting on art work
Petitioner requests approval to use EIFS rather than stucco for reasons /points previously
stated
Department Report, Christine Barton- Holmes:
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Met with petitioner regarding positives and negatives of EIFS
10% EIFS allowed and as a trim piece.
Depai linent is comfortable with amount and placement of EIFS
Depailaient is comfortable with cross easement agreement for parking
Engineering Issues —this is part of a much larger site with its own issues
Committee Member Comments:
Uncomfortable with parking arrangement— spaces can be counted twice
Lost confidence in petitioner —not following thru on their commitment regarding use of
stucco
Stucco is used in cold climates Minnesota, Chicago, etc.
When will parking be installed —not a huge issue
EIFS is lightweight, provides insulation, OK for trim
Building not designed to carry weight of cast stone
Bar lights on art work —can be softened with rotating /shielding direction
Art work subject to final approval of Special Studies Committee
Request written agreement /commitment from petitioner submitted one week prior to full
Commission meeting (copy to Rick Ripma)
NOTE: Rachel Boone reminded the Committee that the Petitioner will be returning to
Committee for signage review /approval
Motion: Madeleine Torres "to forward Docket No. 08080020 ADLS, Hotel Indigo to full Plan
Commission with recommendation for approval, subject to all commitments being submitted in
writing prior to Plan Commission meeting, (petitioner is to return for signage, seconded by
Wayne Haney, voted 3 -1 (Ripma) MOTION CARRIED.
4 -5. Docket No. 08070022 DP Amend /ADLS: St. Vincent Sports Performance Center
The applicant seeks site plan and design approval for a sports performance /training/
physical therapy center and medical offices and also seeks zoning waiver approval:
Docket No. 08070023 ZW ZO §27.01: required parking spaces
The site is located at 13400 N Meridian St. and is zoned B -6 /Business within the US 31
Overlay and OM/MM Old Meridian District, Mixed Medical. Filed by Darrell Phillips
for BremnerDuke Healthcare Real Estate.
Present for Petitioner: Paul Reis, attorney; 3985 West 106 Street, Suite 110,
representing BremnerDuke Healthcare Real Estate.. Also in attendance: Site
Engineer, and Fred Prazeau, landscape architect.
Overview:
Previous discussion between Fred Prazeau, landscape architect and Scott
Brewer, Urban Forester landscape issues resolved.
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Major issue was parking
Petitioner submitted an analysis confirming excess parking (174) spaces
available
Petitioner states adequate parking for the campus
Coordinated campus parking important for St V
Petitioner will provide for a transit system within development
At this time, all items addressed
Department Report, Christine Barton Holmes:
Engineering Dept. has resolved all outstanding issues
City Urban Forester present this evening to answer any questions if need be
LEED elements and parking detail submitted
Deparatment is OK with parking —no variance needed
Department recommends positive consideration
Urban Forester Report, Scott Brewer:
Site visit made today
Tree preservation was a question
Petitioner will quarantine area to preserve trees
Motion: Madeleine Torres "to forward Docket No. 08070022 DP Amend /ALDS
St. Vincent Sports Performance Center and Docket No. 08070023 ZW, (required
parking spaces) to the Plan Commission with a positive recommendation,"
seconded by Woody Rider, voted 4 -0 Motion Carried.
6. Docket No. 08120012 ADLS: Carmel Executive Suites
The applicant seeks design approval for a 3 -story office building. The site is
located at 11708 N College Ave and is zoned B -2 /Business. Filed by Scott
Yeager of Yeager Properties, Inc.
Continued to April 2nd Committee,meeting.
Meeting adjourned at 7:00 PM.
Rick Ripman, Chairperson
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Ramona Hancock, Secretary
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FOR TOA1O
Members Present:
Members Absent:
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City of Carmel
CARMEL PLAN COMMISSION
TUESDAY, MARCH 17, 2009
Council Chambers
Carmel City Hall
Carmel IN 46032
6:00 PM
Minutes
Leo Dierckman, Jay Dorman, Brad Grabow, Wayne Haney, Woody Rider,
Carol Schleif, Steve Stromquist, Madeleine Torres, Sue Westermeier
Dan Dutcher, Rick Ripma
DOCS Staff Present: Michael Hollibaugh, Director; Angie Conn; Adrienne Keeling; John Molitor,
Legal Counsel
Also Present: Ramona Hancock, Plan Commission Secretary
The minutes of the February 17, 2009 meeting were approved as submitted
Legal Counsel Report, John Molitor: Executive Committee Meeting this evening at the conclusion of
the Plan Commission meeting, followed by Executive Session.
Announcements, Dept. Concerns:
Update on Smart Code and Charrette, Adrienne Keeling: Participation slow to start but gathered
momentum to almost 100 persons at end; heavy participation from Old Town Area. General
misconception from residents was that redevelopment would take over everything within the boundary--
ideas well received from residents within the boundaries. Civic green/park at Main and Range Line Road
was a well- received idea; other ideas included a trolley line and and a college campus in the Science
Technology Park —lots of ideas driven by residents and will be distributed in a book of ideas; the team is
working on a draft of the SmartCode for possible release in April. Public referred to website:
www.carmelsmartcode.com for detailed information.
111. Docket No. 08110006 DP /ADLS: Greyhound Commons, Phase III Key Bank (Kite PUD)
The applicant seeks site plan design approval for a bank. The site is located at the southeast
corner of 146 St. and Lowe's Way. The site is zoned R- 4/Residence, pending a PUD/Planned
Unit Development rezone. Filed by Kite Greyhound III, LLC.
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o Design of the entry ways to the south and north have been modified to include a 2X2 brass plate,
mounted to a fence piling that would read: "The Barrington of Carmel, South Entrance" and "The
Barrington of Carmel, North Entrance."
o A list of sustainable green building and site options highlighted at Committee will be submitted in
writing
o Dept of Engineering has requested that the entrance to the Duke Energy Sub- station and the south entry
be consolidated by a cross easement —in process of negotiation with Duke Energy
Committee Report, Carol Schleif:
o Green Features include roof garden over underground parking are
o Most all issues now resolved
o Committee voted unanimous recommendation for approval
Department Report, Angie Conn:
o No issues except for Engineering —will be handled at Construction Document Phase
o Department recommends approval
Motion: Woody Rider "to approve Docket No. 08120013 DP /ADLS, The Barrington of Carmel (Park Place
PUD)" seconded by Jay Dorman, approved 9 -0 Motion Carried.
31. Docket No. 08080020 ADLS: Hotel Indigo
The applicant seeks design approval for a 5 -story hotel building. The site is located northeast of
131S St. US 31 and is zoned B-6/Business within the US 31 Overlay. Filed by Jay Gibson of
CDG Consulting, Inc.
Present for Petitioner: Jay Gibson, CDG Consulting, Indianapolis.
Overview:
o Request Design Approval for Hotel Indigo
o Site is a 3.108 acre tract within a larger PUD Development previously approved by Plan Commission
o Site is zoned B -6 within US 31 Overlay
o 5 -story, 104 -room hotel, approx 4600 square feet of meeting room, plus warming kitchen
o Petitioner utilizing bio- detention facility on north side of site, provided by developer of tract
o Landscape plan approval received by Scott Brewer
Jovan Rayle, Dimensions Architectural, Kokomo
o Amount of EIFS reduced to 10% or less
o Amount of brick increased
o Entry ways are all brick
Special Studies Committee Report, Woody Rider
Murals for art will go through Special Studies Committee for final approval before announcement of
contest winner
Art changed out every 3 -5 years
Petitioner will return for sign variance
Shared parking discussed
Indigo Hotel affiliated with Continental Hotels
Department Comments, Angie Conn:
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Commitments from Petitioner regarding shared parking agreement, tree preservation, signage review
Department recommends approval of project with commitments submitted
Motion: Jay Dorman "to approve Docket No. 08080020 ADLS, Hotel Indigo," seconded by Madeleine
Torres, approved 9 -0 Motion Carried.
Present for Petitioner: Paul Reis, attorney, 3985 West 106 Street, Carmel representing BremnerDuke Healthcare
Real Estate.
Overview:
4 -5I. Docket No. 08070022 DP Amend /ADLS: St. Vincent Sports Performance Center
The applicant seeks site plan and design approval for a sports performance /training/ physical
therapy center and medical offices and also seeks zoning waiver approval:
Docket No. 08070023 ZW ZO §27.01: required parking spaces
The site is located at 13400 N Meridian St. and is zoned B- 6/Business within the US 31 Overlay
and OM /MM Old Meridian District, Mixed Medical. Filed by Darrell Phillips for
BremnerDuke Healthcare Real Estate.
Attended Special Studies Committee for review Feb and March
Issues Addressed include Building Elevations, Parking Detail resolved, LEED items submitted, and
future connection with Browning Investments development to the west was discussed.
Findings of Fact for the Development Plan and Zoning Waiver have been submitted
All Issues have been addressed, including the Forestry Dept
Special Studies Committee Report, Woody Rider:
Parking was an issue but has been resolved
Committee voted 4 -0 to recommend approval
Department Comments, Angie Conn:
Tree Preservation Plan has been approved by City Forester
Department recommends approval of both Dockets
Motion: Woody Rider "to approve Docket No. 08070022 DP Amend/ADLS, St. Vincent Sports Performance
Center and Docket No. 08070023 ZW, required parking spaces," seconded by Madeleine Torres, approved 9 -0
Motion Carried.
J. New Business
ADLS Amend Process, Brad Grabow:
Overview:
ADLS Amends are currently delegated to Committee level for action
Decisions on Amendments to ADLS are made by Committee (5 persons rather than 11)
Given the current workload of Committees, it may be an opportune time to examine whether or not these
are dealt with at the Committee level as opposed to starting at full Plan Commission
Would like to suggest that DOCS Staff weigh the pros /cons on how these are handled at present versus
how they might be handled if ADLS Amends were brought back to the full Commission
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