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Metropolitan Development Commission of Marion County v. Novogroder

Court of Appeals of Indiana

October 4, 2019

Metropolitan Development Commission of Marion County, Indiana, and The Consolidated City of Indianapolis/Marion County, Indiana, Appellants,
v.
George Novogroder, Appellee.

          Appeal 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

          BROWN, JUDGE.

         [¶1] 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. We affirm.

         Facts and Procedural History

         [¶2] 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.[1]The instrument states in part:

In accordance with I.C. 36-7-4-607, [[2] 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 pornographic literature.
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 Permit.
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 Walgreens Drugstore.
10. The existing retail building shall be renovated on its exterior to coordinate in color with the proposed Walgreen Drugstore.
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 parking lot.
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 ...

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