HomeMy WebLinkAboutComplaint for Declaratory Relief SignedSTATE OF INDIANA
)SS:
COUNTY OF HAMILTON
US ARCHITECTS, LLP, ALBERT D.
BOWEN AND JULIE A. BOWEN
Plaintiffs,
IN THE HAMILTON SUPERIOR COURT
CAUSE N D.
v.
CITY OF CARMEL DEPARTMENT OF
COMMUNITY SERVICES, DIVISION OF
BUILDING AND CODE SERVICES and
THE CARMEL BOARD OF ZONING APPEALS
Defendants.
COMPLAINT FOR DECLARATORY RELIEF AND PETITION FOR STAY
OF ENFORCEMENT OF FURTHER PROCEEDINGS BY DEPARTMENT
OF COMMUNITY SERVICES
Plaintiffs, US Architects, LLP, Albert D. Bowen and Ju.ie A. Bowen, by their respective
counsel, hereby file their Complaint for Declaratory Relief pursuant to I.C. 34- 14 -1 -1 et. seq.,
and Petition for Stay of Further Proceedings by Department of Community Services against
Defendants, City of Carmel Department of Community Services, Division of Building and Code
Services (hereinafter "Department of Community Services and the Carmel Board of Zoning
Appeals. For their Complaint against the Defendants, the Plaintiffs allege and say as follows:
JURISDICTION AND VENUE
1. U.S. Architects is a limited liability partnership of which Jerry Hoffman is a
partner and an Indiana Resident.
2. Albert D. Bowen and Julie A. Bowen (collectively the Bowens) are residents of
Hamilton County.
3. The Department of Community Services is a department for the City of Carmel,
Indiana, which is charged with, among other things, issuing building permits and Certificates of
Occupancy as well as enforcing city zoning Ordinances.
4. The Carmel Board of Zoning Appeals is an entity of the City of Carmel.
FACTS
5. Albert D. Bowen and Julie A. Bowen are the owners of the real property at 10596
Jumper Lane, Carmel, Indiana.
6. Albert D. Bowen and US Architects entered into an agreement wherein US
Architects would design an accessory building for Doug Bawen to be constructed at 10596
Jumper Lane, Carmel, Indiana.
7. Albert D. Bowen submitted the plans drafted by, US Architects to the Department
of Community Services for the purpose of receiving a building Denmit.
8. On or about February 2, 2010, the Departmenr, of Community Services for the
City of Carmel issued a building permit to Albert D. Bowen after reviewing and approving the
plans prepared by US Architects and submitted by Albert D. Bawen.
9. Thereafter, Albert D. Bowen constructed the accessory building according to the
plans prepared by US Architects and approved by the Department of Community Services.
10. On or about October 14, 2010, the Department of Community Services issued a
Certificate of Occupancy to Albert D. Bowen for the accessory building after the building was
complete.
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11. On or about March 17, 2011, five months after the issuance of the Certificate of
Occupancy, the Department of Community Services determined srru sponte that it had issued the
prior building permit and Certificate of Occupancy in error because, according to the Department
of Community Services, the accessory building was not in compliance with Carmel Zoning
Ordinance 25.01.01(b).
12. On or about March 25, 2011, the Department of Community Services agreed to
request a variance for Mr. Bowen before the Board of Zoning Appeals given that it, the
Department of Community Services, had previously issued tl-e building permit, as well as the
Certificate of Occupancy, to Mr. Bowen.
13. The Department of Community Services issued a report which recommended that
the Board of Zoning Appeals grant the variance.
14. On April 25, 2011, the Board of Zoning Appeals (held a hearing and denied Mr.
Bowen's application for a variance finding that the accessory building was in violation of Carmel
Zoning Ordinance 25.01.01(b).
15. Since the denial of the variance, the Department of Community Services has
asserted that Albert D. Bowen must bring the accessory building into compliance with Carmel
Zoning Ordinance 25.01.01(b). The Department of Community Services has recently demanded
that the accessory building be brought into compliance by Septiember 1, 2011, and that failure to
comply will result in citations and a mandatory appearance in' City Court. Plaintiffs, however,
maintain that the accessory building is in compliance with Carmel Zoning Ordinance 25.01.01(b)
as presently constructed.
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16. As a result, there exists a present controversy as to the proper interpretation and
application of Carmel Zoning Ordinance 25.01.01(b) and in light c the proper interpretation and
application of the ordinance, whether the Bowen accessory building located at 10596 Jumper
Lane, Carmel, Indiana, complies therewith as presently constru.,ted.
17. Plaintiffs, US Architects, Albert D. Bowen and Julie A. Bowen, seek an Order
from the Court declaring:
a. The proper interpretation and application of Carmel Zoning Ordinance
25.01.01(b);
b. That that the Department of Community Services and the Board of Zoning
Appeal's interpretation and application of Carmel Zoning Ordinance
25.01.01(b) with respect to the Bowen's accessory structure is incorrect;
c. That upon proper interpretation and application of Carmel Zoning
Ordinance 25.01.01(b), the Bowen's accessory structure is in compliance
therewith; and
d. A stay of any and all proceedings by the Department of Community
Services for the alleged violation of Carmel Zoning Ordinance 25.01.01(b)
for the property located at 10596 Jumper. Lane, Carmel, Indiana, until such
time as this declaratory judgment is resolved.
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WHEREFORE, the Plaintiffs, US Architects, Albert D. Bowen and Julie A. Bowen,
respectfully request that the Court provide the relief prayed. for in their Complaint for
Declaratory Judgment, and for all other relief, just and proper in the premises.
IN DL ibrary 1 0122378.0586914 1044239v1
Respectfully submitted,
Edward F. Harney, Jr., Attorney No. 17365 -45
William D. Beyers, Attorney No, 28466 -49
HUME SMITH GEDDES GREEN SIMMONS, LLP
54 Monument Circle, Suite 400
Indianapolis, IN 46204
(317) 632 -4402
eharnevk humesmith.coin
bbevers@humesmith.com
Attorneys for US Architects;
:Tian Falcon, Attorney No. 24175 -29
Frost Brown Todd, LLC
201 North Illinois St, Ste., 1900
PO BOX 44961
Indianapolis, IN 46244
317-237-3800
Attorney for Albert D. Bowen and Julie A. Bowen
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