HomeMy WebLinkAboutBowen v CarmelSUMONS
TO RESPONDENT: (Name) Carmel Board of Zoning Appeals
(Address) One Civic Square
Carmel Indiana 46032
You are hereby notified that you have been sued by the person named as
Plaintiff and in the Court indicated above.
The nature of the suit against you is stated in the Complaint which is
attached to this Summons. It also states the relief sought or the demand made
against you by the Plaintiff.
An answer or other appropriate response in writing to the Complaint must
be filed either by you or your attorney within twenty (20) days, commencing the
day after you receive this Summons(or twenty -three (23) days
���f��t�his Summons was
received by mail), or a judgment by default may be rend'tagm t, for the
relief demanded by the Plaintiff. C
If you have a claim for relief against the Piz' f'f arising JQ6 the same
transaction or occurrence, you must assert it in ya'� answe'x
11JJ
r
Dated AUG 3 4 2011 SEA
0 Court
t e
e
Edward F. Ha_rn y, ,Tr
P t' oner or Counsel
5-4 Monument Circle, 4th Floor
Address
Indianapolis, Indiana 46204-2996
317 632 4 402 Atty.#k17365 45
Telephone Attorney Number
The following manner of service of Summons is hereby designed:
X_ Registered or Certified Mail
Service on individual at above address: County
Service on agent: (specify)
Service by Publication
CLERKS CERTIFICATE OF MAILING
I hereby certify that on the day of 19
mailed a copy of this Summons and a copy of the Petition to the Respondent_
b mail, requesting a return receipt,
the address furnished by the Petitioner.
at
Dated
Clerk Hamilton County Courts
RETURN ON SERVICE OF SUMMONS BY MAIL
I hereby certify
that
the attached return receipt was received by
me
showing that the Summons
and a
copy of the Petition mailed to the Respondent, was
accepted on the day of
I hereby certify that the attached return receipt was received by me on
a
the
day of
19 showing that the Summons and copy
of
the Petition was returned not
I hereby certify that
accepted.
the attached return receipt was received by
me
showing that the Summons
and a
copy of the
was
gePetition on behalf of said Respondent
on
accepted by
the day of
19
Clerk Hamilton County Courts
SERVICE ACKNOWLEDGED
A copy of the within Summons and a copy of the Petition attached thereto
were received by me at
Dated
Signature of Respondent
RETURN OF SERVICE OF SUMMONS
I hereby certify that I have served the within Summons:
(1) By delivering a copy of the Summons and a copy of the Petition to the
Respondent on the day of
(2) By leaving a copy of the Summons and a copy of the Petition:
(a) at the dwelling place or usual place of abode of the_
Respondent
(b) with a person of suitable age and discretion residing therein, namely
and by mailing a copy of the Summons to the
Respondent, by first -class mail, to the address listed on the
Summons, the last known address of the Respondent.
Sheriff of Hamilton County, Indiana
By:
Y
STATE OF INDIANA t—
IN THE HAMILTON SUPERIOR COURT
COUNTY OF HAMILT 1l ft 29 ki H: 3 CAUSE NO 1 pj $65�
US ARCHITECTS, LLP, k`§ fkI D
BOWEN AND JULIE A. BOWEN
Plaintiffs,
MN
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 Julie 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 Bowen 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 permit.
8. On or about February 2, 2010, the Department 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. Bowen.
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.
1-0.- On or about October 1 4; 201 0; the Department of C issued a
Certificate of Occupancy to Albert D. Bowen for the accessory building after the building was
complete.
2
11. On or about March 17, 2011, five months after the issuance of the Certificate of
Occupancy, the Department of Community Services determined sua 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 the 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 September 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 Zon i ng Ordinance 25 O1 O1 -(b)
as presently constructed.
3
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 of the proper interpretation and
application of the ordinance, whether the Bowen accessory building located at 10596 Jumper
Lane, Carmel, Indiana, complies therewith as presently constructed.
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.
2
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.
Respectfully submitted,
a LL
Edward F. Harney, Jr., Att mey 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
eharney(,humesmith.com
bbeyersl2humesmith.com
Attorneys for US Architects
i
rian 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
INDLibrary 1 0122378.0586914 1044239y]
5
e
STATE OF INDIANA
)SS:
COUNTY OF HAMILTON
2111 AUG 29 AN 11: 34
IN THE HAMILTON SUPERIOR COURT
CAUSE NO.
nL
US ARCHITECTS, LLP, ALBERT
BOWEN AND JULIE A. BO EN TS
Plaintiffs,
V.
CITY OF CARMEL DEPARTMENT OF
COMMUNITY SERVICES, DIVISION OF
BUILDING AND CODE SERVICES and
THE CARMEL BOARD OF ZONING APPEALS
Defendants.
APPEARANCE BY ATTORNEY IN CIVIL CASE
1.
2.
3
H
5.
Party Classification: Initiating: X Responding: Intervening:
The undersigned attorney and all attorneys listed on this form now appear in this case
for the following party member(s):
DEFENDANT, US ARCHITECTS, LLP
Applicable attorney information for service as required by Trial Rule 5(B)(2) and for
case information as required by Trial Rules 3.1 and 77(B) is as follows:
Name: Edward F. Harney Attorney No.: 17365 -45
Address: HUME SMITH GEDDES GREEN Phone: (317) 632 -4402
SIMMONS, LLP
54 Monument Circle, 4th Floor
Indianapolis, IN 46204
There are other party members: Yes No X (If yes, list on continuation page.)
If first initiating party filing this case, the clerk is requested to assign this case the
following Case Type under Administrative Rule 8(b)(3): Not applicable
I will accept service by FAX at the above noted number: Yes No X
6. This case involves support issues: Yes No X (If yes, supply social security
numbers for all family members on continuation page.)
7. There are related cases: Yes No X
8. This form has been served on all other parties. Certificate of service is attached:
Yes No X
9. Additional information required by local rule: None
Res fully submitted,
dward F. Harney, JT. Attorney No.: 17365 -45
HUME SMITH GEDDES GREEN SIMMONS, LLP
54 Monument Circle, Fourth Floor
Indianapolis, IN 46204
(317) 632 -4402 (voice)
(317) 632 -5595 (fax)
Attorney(s) for Defendant, US Architects,
LLP