Metropolitan Development Commission of Marion County, Indiana, and The Consolidated City of Indianapolis/Marion County, Indiana, Appellants,
George Novogroder, Appellee.
from the Marion Superior Court The Honorable Michael D.
Keele, Judge Trial Court Cause No. 49D07-1804-MI-13798
ATTORNEY FOR APPELLANTS Daniel P. Bowman Office of
Corporation Counsel Indianapolis, Indiana
ATTORNEYS FOR APPELLEE Greg A. Bouwer Jeff Carroll Koransky
Bouwer & Poracky, P.C. Dyer, Indiana
The Metropolitan Development Commission of Marion County,
Indiana (the "MDC") and The Consolidated City of
Indianapolis/Marion County, Indiana (together with the MDC,
"Appellants") appeal the trial court's judgment
entered on October 22, 2018 which vacated the decision of the
MDC. Appellants raise three issues which we consolidate and
revise as whether the trial court erred in entering judgment.
and Procedural History
George Novogroder owns real property northwest of the
intersection of East 56th Street and Kessler Boulevard in
Indianapolis. In May 1993, an instrument titled Original
Commitments was recorded with the Marion County
Recorder.The instrument states in part:
In accordance with I.C. 36-7-4-607, [ the owner of the real estate
. . . makes the following COMMITMENTS concerning the use and
development of the parcel of real estate:
** * * *
2. Final site and landscape plan will be submitted to the
Administrator for approval prior to any application for an
Improvement Location Permit for the construction of the
Walgreen Pharmacy. The landscape plan will be similar in
nature to that of the Boardwalk Condominium.
** * * *
4. The proposed pharmacy shall not sell liquor, beer or wine
as would be permitted by a pharmacy license issued by the
Indiana Alcoholic Beverage Commission nor sell any
5. Right-of-way along Kessler Boulevard East Drive shall be
dedicated in accordance with the recommendations of the
Thoroughfare Plan for Marion County, Indiana . . . upon the
written request of the Department of Transportation (DOT).
6. Site access design and location, including auxiliary lane
improvements, and a master circulation plan for the entire
property adjacent to the site owned by this Petitioner, shall
be approved by DOT prior to obtaining an Improvement Location
7. Fast food restaurants, gasoline service stations, massage
parlors, or any other businesses involving moral turpitude
shall not be permitted.
8. A sign program for the entire integrated center shall be
submitted for Administrator's approval prior to obtaining
an Improvement Location Permit. The sign program shall
include only one (1) pole sign no more than twenty-five feet
(25') in height. The pole sign will be located at the
corner of 56th Street and Kessler Boulevard.
9. The proposed new structure shall be occupied only by a
10. The existing retail building shall be renovated on its
exterior to coordinate in color with the proposed Walgreen
11. The same exterior finish shall be used on all sides of
the proposed drugstore building. The exterior shall include
brick the same color as the Boardwalk Condominiums. The rest
of the exterior shall be of the same color as the non-brick
exterior of said Condominiums.
12. There will be no floodlights on the Walgreen building. No
parking lot lights will be located north of the Walgreen
building. All parking lot lights will be constructed so that
the lighting will be directed toward the interior of the
13. The proposed Walgreen Drugstore shall not be permitted to
stay open to the public after midnight or before 6:00 a.m.
for at least two (2) years from and after the date of opening
the drugstore for business.
14. An access road to Emerson Way shall not be constructed as
a part of the development of the subject real estate as
proposed in this rezoning Petition. . . . Neither Walgreen
nor the partnership entity developing the Walgreen Drugstore
shall contribute economically to the development of an access
road from ...