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Metropolitan Board of Zoning Appeals Division III of Marion County v. Traders Point Association of Neighborhoods

Court of Appeals of Indiana

August 11, 2017

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,
v.
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.

         Appeal 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.

          Bradford, Judge.

         Case Summary

         [¶1] 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.

         [¶2] 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 BZA.

         Facts and Procedural History

         [¶3] 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 registered agent.

         [¶4] 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.[1] 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.

         [¶5] On March 9, 2015, the Application for an ILP was filed. The Application listed Gurpreet as the "Owner" and was signed by Michael Cope.[2] Appellants' App. Vol. II, p. 41. Various other related applications list either Gurpreet or Three Mile as the owner of the Property.

         [¶6] 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.

         [¶7] 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 properly issued.
DECISION
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.

         [¶8] 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 ...


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