Metropolitan Development Commission of Marion County, Indiana, and The Consolidated City of Indianapolis/Marion County, Indiana v. George Novogroder ( 2019 )

FILED
Oct 04 2019, 5:29 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANTS ATTORNEYS FOR APPELLEE
Daniel P. Bowman Greg A. Bouwer
Office of Corporation Counsel Jeff Carroll
Indianapolis, Indiana Koransky Bouwer & Poracky, P.C.
Dyer, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Metropolitan Development October 4, 2019
Commission of Marion County, Court of Appeals Case No.
Indiana, and The Consolidated 18A-MI-2761
City of Indianapolis/Marion Appeal from the Marion Superior
County, Indiana, Court
Appellants, The Honorable Michael D. Keele,
Judge
v. Trial Court Cause No.
49D07-1804-MI-13798
George Novogroder,
Appellee.
Brown, Judge.
Court of Appeals of Indiana | Opinion 18A-MI-2761 | October 4, 2019 Page 1 of 17
[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.
*****
1
The instrument stated it was signed by Park Place Associates, Ltd., and Kite Development Corporation.
2
Ind. Code § 36-7-4-607 relates to a proposal to amend or partially repeal the text of the zoning ordinance.
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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.
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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 Emerson Way to the northern entrance to the parking lot
of the subject real estate.
*****
. . . . These COMMITMENTS may be modified or terminated by a
decision of the Metropolitan Development Commission made at a public
hearing after proper notice has been given.
COMMITMENTS contained in this instrument shall be effective upon: the
adoption of rezoning petition . . . by the City-County Council changing the
zoning classification of the real estate from a D-A and C-1 zoning
classification to a C-3 zoning classification and shall continue in effect for as
long as the above-described parcel of real estate remains zoned to the zoning
classification or until such other time as may be specified herein.
Appellants’ Appendix Volume 2 at 77-78. The property was rezoned in 1993 to a
C-3 zoning classification. Walgreens occupied the building beginning in
approximately 1994.
[3] In June 2014, Walgreens notified Novogroder that it had elected to exercise its
option to cancel its lease and that the effective date of the cancellation was to be
July 31, 2015.
[4] In December 2017, Novogroder filed a petition with the MDC. His petition
stated the Walgreens had been closed for approximately two and one-half years
and requested that, “[a]s Walgreen’s has now vacated the Building, . . . certain
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Commitments be terminated or modified to allow for the operation of Dollar
Tree retail store (and/or other permitted C-3 uses).” Id. at 75. He requested the
termination of the commitments in paragraphs 9 and 13 and that the
commitments in paragraph 11 and 12 be modified. 3 A letter from Ralph Balber
filed with the MDC states he was the president and principal broker for ALO
Property Group in Indianapolis, the former Walgreens site was not marketable
for sale or lease, and the existence of commitments limiting use of the building
to a Walgreens made the building virtually worthless. He stated that, in his
professional opinion that due to the fact Walgreens closed the location, the
commitments referencing “Walgreen’s and/or drugstore” have to be terminated
in order for the building and site to be occupied by another business, that
without terminating the commitments the site will remain vacant, deteriorate,
and be subject to vandalism and break-ins, and that the surrounding property
values will continue to be negatively impacted.
[5] In March 2018, the MDC held a hearing. Novogroder’s counsel stated that the
commitments were almost twenty-five years old and the site had been vacant
for almost three years. He referenced a Millersville at Fall Creek Valley Village
and Corridor Plan (the “Millersville Plan”), which “calls for a mixed use of
3
Novogroder proposed that paragraph 11 be modified to state: “The same exterior finish shall be used on all
sides of the existing building. The exterior shall include brick the same color as the Boardwalk
Condominiums. The rest of the exterior shall be the same color as the non-brick exterior of said
Condominiums.” Appellants’ Appendix Volume 2 at 75. He proposed that paragraph 12 be modified to
state: “There will be no floodlights on the existing building. No parking lights will be located north of the
existing building. All parking lot lights will be constructed so that the lighting will be directed toward the
interior of the parking lot.” Id.Court of Appeals of Indiana | Opinion 18A-MI-2761 | October 4, 2019 Page 5 of 17
neighborhood-office-retail node,” that “what we have here today is Dollar Tree
would like to go in that store,” that the Millersville Plan included appropriate
uses including retail sales, and that Dollar Tree is a retail sales use. Id. at 21-22.
He indicated the Millersville Plan also lists a number of inappropriate uses and
that Novogroder would agree not to use the property for those uses, except that
a drive-up service window was already part of the building although Dollar
Tree does not use such a window. 4 He indicated that there had been a recent
break-in, and that there are a number of examples where Walgreens has left its
sites and the sites have become Dollar Trees. He argued this is an unusual case,
that he had never seen a commitment that restricted a use of real estate to only
one user, and that the owner cannot have a tenant until the restriction is
removed.
[6] Courtenay Weldon stated that he and his wife owned a neighboring retail
center, that his father and aunt had purchased it in 1984, and that he had been
managing it since that time. 5 Weldon stated “[w]e started, thought we could
develop the land next to it, which was vacant, had a shed filled with rats, and
we applied for zoning and got it, and we made a deal with Walgreens,” “[w]e
4
Novogroder’s materials included slides listing appropriate and inappropriate uses under the Millersville
Plan. The inappropriate uses listed include: nursing home; community gardens; residential, detached single-
family or two-family; automobile sales/rental/leasing, new/used; automobile washing; boat and RV
sales/rental/leasing, new/used; drive-in, drive-thru or drive-up service window (inappropriate if wider than
one lane at the point it crosses a pedestrian way); adult entertainment; outdoor commercial recreation or
amusement establishment; funeral home; laundry plant, dry-cleaning plant; parking lot (commercial,
surface); power/gas substation; radio/TV/satellite/telecommunications tower; safety services (police,
ambulance, fire); and self-service storage.
5
John Weldon signed the Original Commitments on behalf of Park Place Associates, Ltd.
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built the store in ‘94; then we tried to get financing and we couldn’t get it,” and
“[w]e tried insurance companies, savings and loans, and Walgreens found
George Novogroder for us that bailed us out; otherwise we would have been in
trouble in the building.” 6 Id. at 27-28. He stated that, since the building was
empty and not lighted, people were dumping trash and mattresses in the back,
that they lost customers frequenting their center, and that they would like to see
the building occupied by Dollar Tree. One of the strip’s tenants stated that any
tenant in the vacant building would be beneficial.
[7] A number of remonstrators opposed Novogroder’s petition. One of the
remonstrators stated the City’s land use plans originally called for the strip of
land to be a buffer between commercial and residential areas, the Walgreens
restriction was in place so that the site could not be occupied by a company or
organization that would have a negative impact on the greater Millersville
neighborhood, the site was important because of its prominent location, and
that Dollar Tree projects a negative image. Another remonstrator discussed the
Millersville Plan and stated that Dollar Tree does not fit in the plan. The
transcript indicates that, when area residents were asked to stand by the
president of Millersville at Fall Creek Valley, thirty audience members stood. A
City-County Councilor stated that she was with the remonstrators, the
6
Courtenay Weldon submitted a letter stating that he shared common area with Novogroder and they had a
cross-easement parking agreement; that, since Walgreens vacated the property, he had nothing but problems
with trash and abandoned vehicles and the property was burglarized; and that the commitments which had
been made to obtain zoning were so restrictive that he could not get a loan on the Walgreens store.
Court of Appeals of Indiana | Opinion 18A-MI-2761 | October 4, 2019 Page 7 of 17
neighborhood residents were open to other uses but not to Dollar Tree, and
“quite frankly, you know, if Mr. Novogroder could not find another tenant, I
would suggest that he offer what he did to Danville residents. There was an
empty Walgreens store there that he owned, and he offered to donate it to the
community for community purposes. And we would be all about that and
having that site available for the community.” Id. at 48-49.
[8] The Staff Report of the MDC’s Division of Planning indicated that the staff had
no recommendation regarding Novogroder’s petition but recommended that, if
approved, a five-foot-wide sidewalk be installed along the rights-of-way of East
56th Street and Kessler Boulevard. Novogroder’s counsel argued that Dollar
Tree was the only tenant to sign a lease, an empty store projects a negative
image, and that the commitments are unreasonable, impractical, and perhaps
unlawful. The MDC voted to deny Novogroder’s petition.
[9] On April 10, 2018, Novogroder filed a petition for judicial review. He also
sought a declaratory judgment that a restriction permitting only a Walgreens to
occupy the building is unconstitutional. On September 12, 2018, the court held
a hearing on Novogroder’s petition for judicial review. Novogroder’s counsel
argued that the language in paragraph 9 of the commitments refers to “[t]he
proposed new structure,” emphasized that the paragraph pertained to the
“structure,” noted the language that the structure shall be occupied only by
Walgreens, and argued that, “[s]omehow, we bootstrap that into it can only be
used . . . by a Walgreens perpetually” and “[t]hat language doesn’t say that, it
says the building may only be occupied.” Transcript Volume 2 at 10. He
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argued that “[w]hat that language really meant was that Walgreens was going
to occupy the entire building, ‘the proposed new structure.’” Id. He pointed to
paragraph 7 and argued “[w]hy am I banning gas stations if it could be used by
a Walgreen’s drugstore? it makes no sense.” Id.[10] The court stated: “It’s your suggestion, . . . is that you may have advised your
client, we don’t need a modification. As I read and interpret these
commitments, a new Dollar Tree can come in because it’s [not] one of the
prohibited type uses in 7 and the way you read 9 is that the proposed new
structure shall be used as a Walgreens and it was.” Id. at 11. Novogroder’s
counsel replied: “Yeah, and we can’t get a building permit and we can’t get an
occupancy certificate, so at some point we’ve got to bring a request ‘cause they
won’t do anything with a building permit or occupancy certificate, so we have
to make a petition, they denied it.” Id. The court stated “I guess another
option it would have been, maybe, an administration decision in denying a
building permit or a zoning IOP, . . . which could have resulted in an appeal to
the BZA,” and Novogroder’s counsel replied “[y]es, it could have been
considered,” “[t]he initial approach to the Planning staff was that site may only
be used as Walgreens,” “so if you’re going to have another use, a Dollar Tree,
DaVita, a Dollar General, a CVS . . . you’ve got to get rid of that
commitment,” and “also then those commitments specify that any modification
or termination of them go back before Planning Commission and so that was
the route that was directed.” Id. at 11-12.
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[11] On October 22, 2018, the trial court entered Findings of Fact, Conclusions of
Law and Judgment which provided in part:
Findings of Fact
*****
2. The Real Estate is approximately 1.4 acres in size and is zoned C-3
commercial.
3. The Real Estate is improved with a vacant approximate 13,000 square
foot commercial building and associated parking.
4. The Real Estate is surrounded by commercial uses to the west and south,
also zoned C-3; commercial offices to the north, zoned C-1; and single-
family dwellings to the east, zoned D-P and D-S.
5. Surrounding uses include a retail center, Burger King, Dinius Auto
Service Center, Speedway Gas Station, CVS drugstore/pharmacy (across
the street), Starbucks, and Hardees.
*****
8. The C-3 zoning district permits commercial retail uses.
9. After the 1993 rezoning, Walgreens began leasing the Real Estate for use
as a Walgreens drugstore.
10. Walgreens vacated the Real Estate in the summer of 2015 when its
lease expired, and the Real Estate has been vacant since that time.
*****
21. Dollar Tree is a commercial retail use, a permitted use under the
Millersville Plan.
*****
Conclusions of Law
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1. The court shall grant relief from a zoning decision if the court determines
that a person seeking judicial relief has been prejudiced by a decision that is:
(a) arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law; (b) contrary to constitutional right, power, privilege or
immunity; (c) in excess of statutory jurisdiction, authority, or limitations, or
short of statutory right; (d) without observance of procedure required by
law; or (e) unsupported by substantial evidence. Ind. Code § 36-7-4-1614.
If the court makes such a determination, then the court may set aside a
zoning decision and (i) remand the case to the board for further proceedings
or (ii) compel a decision that has been unreasonably delayed or unlawfully
withheld. Ind. Code § 36-7-4-1615.
2. The Real Estate is zoned C3, allowing commercial retail uses, including
a Dollar Tree Store.
3. Although Commitment No. 9 reads that “[t]he proposed new structure
shall be occupied only by a Walgreen Drugstore,” a contract in Indiana “is
to be read as a whole when trying to ascertain the intent of the parties.”
Allstate Ins. Co. v. Bradtmueller, 715 N.E.2d 993, 996 (Ind. Ct. App. 1999).
“The court will make all attempts to construe the language in a contract so
as not to render any words, phrases, or terms ineffective or meaningless.
The court must accept an interpretation of the contract which harmonizes
its provisions as opposed to one which causes the provisions to be
conflicting.” Id.
4. Reading the Commitments as a whole, as the law requires, demands that
the Court also consider Commitment No. 7:
Fast food restaurants, gasoline service stations, massage parlors, or
any other businesses involving moral turpitude shall not be
permitted.
5. Adopting the MDC’s interpretation of the Commitments – i.e. that no
business other than a Walgreens Drugstore may occupy the space – would
require the Court to disregard Commitment No. 7. There would be no need
to document the kind of businesses that cannot occupy the space if the
Commitments restricted the Real Estate to a single named occupant.
6. Taking care not to render any provisions of the Commitments
meaningless and to harmonize said provisions, Commitment No. 9
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established that the Real Estate be occupied by a single tenant or user,
which, at that time, was a Walgreen drugstore.
7. The MDC’s decision to deny Novogroder’s petition for modification of
commitments was arbitrary, capricious, an abuse or discretion, or otherwise
not in accordance with law.
JUDGMENT
Based on the Findings of Fact and Conclusions of Law above, and the
MDC Record, it is hereby ORDERED, ADJUDGED AND DECREED
that the decision of the MDC to deny Petition No. 2017-MOD-024 is
vacated. The Court hereby remands this case to the MDC for further
proceedings consistent with this Order.
Appellants’ Appendix Volume 2 at 10-15.
Discussion
[12] The issue is whether the trial court erred in entering its judgment. A
commitment is an agreement by a landowner to adhere to a certain restriction.
See Beineke v. Chem. Waste Mgmt. of Ind., LLC, 868 N.E.2d 534, 539 (Ind. Ct.
App. 2007) (“[D]irectives from a zoning agency as part of a zoning request are
‘conditions,’ and agreements by a landowner to adhere to certain restrictions
are ‘commitments.’”) (citing Story Bed & Breakfast, LLP v. Brown Cnty. Area Plan
Comm’n, 819 N.E.2d 55, 62 (Ind. 2004) (observing “if a legislative body imposes
the restriction, it is a condition, but if it is submitted by the property owner to
induce rezoning, it is a commitment”)). The parties cite Ind. Code § 36-7-4-
1015 and Ind. Code § 36-7-4-1614.
[13] Ind. Code § 36-7-4-1015(a) provides in part that “[a]s a condition to the . . .
adoption of a rezoning proposal . . . the owner of a parcel of real property may
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be required or allowed to make a commitment concerning the use or
development of that parcel.” Ind. Code § 36-7-4-1015(b)(5) provides in part
that a commitment “may be modified or terminated . . . by a decision of the
plan commission or board of zoning appeals to which the commitment was
made” and that “[a] decision by a plan commission or board of zoning appeals
must be made at a public hearing after notice of the hearing has been provided
under the rules of the plan commission or board of zoning appeals, as the case
may be.” Ind. Code § 36-7-4-1016 states in part that “[t]he following decisions
of the plan commission are considered zoning decisions for purposes of this
chapter and are subject to judicial review[:] . . . A decision under section 1015
of this chapter (appeal of a commitment modification or termination).” Ind.
Code § 36-7-4-1615 provides that, if the court finds that a person has been
prejudiced under Ind. Code § 36-7-4-1614, it may set aside a zoning decision
and remand the case to the board for further proceedings or compel a decision
that has been unreasonably delayed or unlawfully withheld. Ind. Code § 36-7-
4-1614(d) provides the court shall grant relief under Ind. Code § 36-7-4-1615only if it determines that a person seeking judicial relief has been prejudiced by
a zoning decision that is: (1) arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law; (2) contrary to constitutional right,
power, privilege, or immunity; (3) in excess of statutory jurisdiction, authority,
or limitations, or short of statutory right; (4) without observance of procedure
required by law; or (5) unsupported by substantial evidence.
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[14] Appellants contend the trial court erred in finding the commitments did not
limit use of the structure to a Walgreens. They argue that the trial court’s
conclusion that adopting the MDC’s interpretation of the commitments would
render the commitment prohibiting fast food restaurants superfluous is not
apparent from the face of the commitments, that the commitments refer to an
existing retail building in addition to a proposed new structure, and that
paragraph 9 of the commitments is more specific than the prohibition of other
businesses in paragraph 7 and the more specific Walgreens restriction controls.
They argue that there is no way to evaluate the MDC’s decision under the
standards at Ind. Code § 36-7-4-1614(d)(1) and (5), that Ind. Code § 36-7-4-
1015(b)(5) does not require that MDC follow any particular criteria, and that
the MDC did not make, and was not required to make, any findings. They also
assert that Novogroder’s constitutional claims are barred because he failed to
present them to the MDC.
[15] Novogroder maintains the court’s judgment should be affirmed. He argues
that, contrary to the MDC’s assertion, it is clear that paragraph 7 of the
commitments referred only to the building at issue, the previous six paragraphs
discussed the proposed pharmacy, paragraph 8 discussed signage, and
paragraph 10 related to the exterior of the retail center. He notes the use of the
modifier “proposed” in the commitments and argues that, “at the time the
Commitments were executed, it appears that a Walgreen’s tenancy was not a
done deal . . . .” Appellee’s Brief at 11. He asserts that paragraphs 7 and 9 are
not in conflict and the rule of interpretation that a specific provision controls
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over a general provision is not applicable. He also asserts that the drafters did
not intend to bind the real estate owner to a single branded store in perpetuity,
that MDC’s decision renders the property unmarketable for sale or lease and
virtually worthless, and that he had no reason to raise a constitutional taking
argument before the MDC and the argument is not waived. In reply,
Appellants argue, citing Ind. Code § 36-7-4-1015(b), that “[t]he statute leaves
the decision to modify or terminate a commitment to the sole discretion of the
commission and does not require findings.” Appellants’ Reply Brief at 7.
[16] To the extent we must construe the commitments, our primary task is to
determine and effectuate the intent of the parties at the time the instrument was
made. See Ryan v. Lawyers Title Ins. Corp., 959 N.E.2d 870, 875 (Ind. Ct. App.
2011). We read the instrument as a whole, attempt to construe the language so
as not to render any terms ineffective or meaningless, accept an interpretation
which harmonizes its provisions, and note that specific terms typically control
where specific and general terms relate to the same subject. See id.[17] The parties essentially disagree as to what the signatories to the commitments
intended when they included paragraph 9. Appellants assert that paragraph 9
should be construed to require that the new structure would be occupied by
Walgreens indefinitely and that no other tenant or business would be permitted
to occupy or use the building. We cannot say that the language of paragraph 9
and the commitments supports this view. Paragraph 9 states that “[t]he
proposed new structure shall be occupied only by a Walgreens Drugstore.”
Appellants’ Appendix Volume 2 at 77 (emphasis added). Based upon the
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language of the paragraph 9 and the other commitments, we find that the
signatories to the 1993 commitments intended that the first tenant to occupy the
new structure would be Walgreens, and that the building would then be
permitted to be occupied by another tenant and used for any purpose consistent
with applicable zoning designations and any other applicable commitments.
The record reflects that the developers desired to construct the building on the
previously-vacant parcel and lease the building to Walgreens and that they
obtained favorable rezoning by making certain commitments regarding the sale
of liquor, dedication of a right-of-way, signage, exterior finishes, lighting, and
site access design and location. The signatories anticipated that Walgreens
would occupy the new structure, and that is what occurred with Walgreens
leasing and occupying the new building from approximately 1994 until July 31,
2015.
[18] We further note our preference for an interpretation which disfavors restrictions
on alienation and resolves any doubt in favor of the free use of property. See
Noblesville Redevelopment Comm’n v. Noblesville Assocs. Ltd. P’ship, 674 N.E.2d
558, 562 (Ind. 1996) (“Indiana law favors the free alienability and development
of land.”); see also F.B.I. Farms, Inc. v. Moore, 798 N.E.2d 440, 445-446 (Ind.
2003) (discussing transfer restrictions related to corporate ownership and stating
that “restrictions on transfer are to be read, like any other contract, to further
the manifest intention of the parties,” “[b]ecause they are restrictions on
alienation and therefore disfavored, the terms in the restrictions are not to be
expanded beyond their plain and ordinary meaning,” and one of the factors
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relevant in determining the reasonableness of such a restriction is “the degree of
restraint upon alienation”); Centennial Park, LLC v. Highland Park Estates, LLC,
117 N.E.3d 565, 570 (Ind. Ct. App. 2018) (“We strictly construe restrictive
covenants and resolve all doubts in favor of the free use of property and against
restrictions.”).
[19] For the foregoing reasons, we affirm the judgment of the trial court.
[20] Affirmed.
May, J., and Mathias, J., concur.
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