Katie Stancombe for www.theindianalawyer.vcom
Construction of a parking lot and retail center in a historic preservation district will continue despite objections from homeowners in the area after the Indiana Court of Appeals upheld a ruling from the Indianapolis Historic Preservation Commission.
On April 28, 2016, Dan Jacobs submitted an application for a certificate of appropriateness to begin a project on a property near the Lockerbie Glove Factory Town Homes. After review by Indianapolis Historic Preservation Commission staffers, plans for the project called for a five-story, multi-use building with 67 apartment units, retail and gallery space, a roof deck and 261 internal parking spaces.
However, eight homeowners in the surrounding area who are not members of the local neighborhood association, Lockerbie Square People’s Club, submitted an objection letter to the commission concerning the project on July 27, 2016. Homeowners against the project raised several objections, including that a covenant issued to the Athenaeum Foundation in 2001 by the People’s Club for the property prohibits anything other than residential use on the property; that the project violates the historic plan in many ways; that there would be increased noise and traffic; and that the residential portion of the project seemed “more like short-term leasing, which fits the description of a hotel… .”
Commission staff ultimately recommended approval of the application for a certificate of appropriateness, and the Commission approved that recommendation. The homeowners then filed a petition for judicial review and a motion to compel, seeking discovery from the commission on the issue of the possible bias of commissioner Alex White in favor of Athenaeum and Jacobs based on a statement made in the first preliminary hearing.
Both motions were denied, and the Indiana Court of Appeals affirmed that ruling Friday. Judge Margret Robb, writing for the unanimous panel, said the remonstrators failed to object to White’s participation in the final hearing and vote, so that issue was waived on appeal. Waiver notwithstanding, Robb said the court presumes “that an administrative board or panel will act properly and without bias or prejudice.”
The appellate court also found the inclusion of both residential and commercial uses on the property would not undermine historic preservation in the area, and that the historic plan recommends much of the second area of the “Historic Core” be developed with a mix of residential and compatible commercial uses.
Finally, the court determined the Athenaeum “Covenant does not foreclose use of the property for any parking purpose in perpetuity; rather, it restricted the use of the property solely as a parking lot beyond (a) 3 Year Period.” Although the project incorporates parking for new residents who will need it, the property is not strictly a “parking lot,” the panel found. Therefore, the covenant does not mandate that the property is used for solely residential purposes after the three-year period.
The case is Lockerbie Glove Factor Town Home Owners Association, Inc., Andre B. Lacy, Julia L. Lacy, Elliot J. & Serena Androphy, Cherri D. Hobgood, James & Cheryl Arnold, and William B. Young v. Indianapolis Historic Preservation Commission, and Dan Jacobs, 49A02-1708-CT-1681.