Metropolitan Board of Zoning Appeals Division III of Marion County, Indiana, and Three Mile Properties, Inc., (s/k/a Three Mile Properties-Gurpreet Singh), Appellants-Respondents,
Traders Point Association of Neighborhoods, Kenneth F. Zahora (TRS), Cherie L. Zahora (TRS), Michael L. Wigginton, Linda McElwrath, Traders Pointe Neighborhood Association, Inc., Marco A. Caccamo, and Metropolitan School District of Pike Township, Appellees-Petitioners.
from the Marion Superior Court The Honorable John F. Hanley,
Judge Trial Court Cause No. 49D11-1602-PL-5766
Attorneys for Appellants Jeffrey M. Bellamy Stephen R. Donham
Thrasher Buschmann & Voelkel, P.C. Indianapolis, Indiana.
Attorney for Appellees S. Gregory Zubek Whitham, Hebenstreit
& Zubek, LLP Indianapolis, Indiana.
On March 9, 2015, Gurpreet Singh, in his position as a
principal and the registered agent of Appellant-Respondent
Three Mile Properties, Inc. ("Three Mile"), filed
an application for an Improvement Location Permit
("ILP"). Specifically, Singh sought permission to
build a gas station and convenience store on certain real
estate located in the City of Indianapolis ("the
City"). The real estate was zoned "C-3" which
allows for such businesses. Upon review of Singh's March
9, 2015 application ("the Application"), the
City's Department of Code Enforcement ("DCE")
issued ILP number 15-00384, granting permission for the
proposed development. On February 16, 2016,
Appellant-Respondent the Metropolitan Board of Zoning Appeals
("the BZA") upheld the issuance of ILP 15-00384.
Petitioners-Appellees Traders Point Association of
Neighborhoods, Kenneth F. Zahora (TRS), Cherie L. Zahora
(TRS), Michael L. Wigginton, Linda McElwrath, Traders Pointe
Neighborhood Association, Inc., Marco A. Caccamo, and
Metropolitan School District of Pike Township (collectively,
"the Appellees") appealed the BZA's decision to
the trial court. On February 28, 2017, the trial court
reversed the decision of the BZA. Three Mile appealed,
arguing that the trial court erred in reversing the decision
of the BZA. Because we agree with Three Mile, we reverse the
judgment of the trial court and reinstate the decision of the
and Procedural History
Three Mile was incorporated in October of 2014 by Gurpreet
and Shiv Pal Singh. Gurpreet and Shiv Pal serve as principals
of Three Mile and Gurpreet serves as Three Mile's
On November 19, 2014, Three Mile entered into a land contract
("the Land Contract") to purchase a parcel
"commonly known as 8562 Lafayette Road, Indianapolis,
Indiana 46278" ("the Property") from Linda
Ryan. Appellants' App. Vol. II, pp. 79-90.
Both Gurpeet and Shiv Pal signed the contract on behalf of
Three Mile. The Land Contract was subsequently recorded in
the Marion County Recorder's Office on November 26, 2014.
On March 9, 2015, the Application for an ILP was filed. The
Application listed Gurpreet as the "Owner" and was
signed by Michael Cope. Appellants' App. Vol. II, p. 41.
Various other related applications list either Gurpreet or
Three Mile as the owner of the Property.
On April 20, 2015, while the Application was pending, the
Indianapolis City-County Council ("the City
Council") approved an ordinance that would prohibit new
permits for being issued for gasoline service stations or
convenience markets in C-3 zoning districts pending an
amendment to the Marion County zoning code or June 1, 2016,
whichever was earlier ("the Moratorium Ordinance").
The Moratorium Ordinance was approved and signed by the Mayor
of Indianapolis on April 29, 2015.
The Application was subsequently approved and on June 23,
2015, ILP number 15-00384, which granted permission for the
proposed development, was issued to "Three Mile
Property-Gurpreet Singh." Appellants' App. Vol. II,
p. 112. The Appellees then appealed the issuance of the ILP
to the BZA. Following its review of the matter, the BZA
issued the following:
BASED ON THE EVIDENCE SUBMITTED THE PETITIONER FAILED TO MEET
ITS BURDEN OF PROOF TO SHOW THAT IMPROVEMENT LOCATION PERMIT
NO. ILP 15-00384 WAS ISSUED IN ERROR. The subject site is
zoned C-3, a zoning designation which at the time [the]
application was made for ILP 15-000384, permitted a gas
station and convenience store by right, without the need for
any variance of use. The proposed gas station and convenience
store meets all development standards of the Commercial
Zoning Ordinance for C-3 zoned property. ILP 15-00384 was
IT IS THEREFORE the decision of this body that this
ADMINISTRATIVE APPEAL petition is DENIED.
Adopted this 16th day of February, 2016.
Appellants' App. Vol. II, p. 120.
The Appellees next appealed the BZA's decision to the
trial court. The trial court acknowledged the Land Contract
but nonetheless concluded that "[a]t the time the ILP
was filed in March 2015, neither Gurpreet Singh nor Michael
Cope was the owner or lessee of the [P]roperty at 8562
Lafayette Road." Appellants' App. Vol. II, p. 18.
The trial court further concluded that Application was not
complete and that the BZA "committed a fundamental error
in law in denying the appeal of the grant of the ILP in this
case because neither [Gurpreet] nor Cope was the owner of the
Property." Appellants' App. Vol. II, p. 18. Because
the Application was not complete ...