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COA reverses trial court on Kroger building proposal

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The Indiana Court of Appeals has ruled that the Town of Plainfield Plan Commission must provide The Kroger Co. with specific reasons its building plan was denied or allow Kroger to build a gas station as planned.

In The Kroger Co, et al. v. Plan Commission of the Town of Plainfield, Indiana, No. 32A04-1012-MI-751, Kroger appealed the trial court’s order granting summary judgment in favor of the plan commission, alleging the plan commission’s zoning ordinance does not satisfy the specificity requirement of the Zoning Enabling Act.  

Kroger owns and operates a retail store located at the intersection of State Road 267 and U.S. 40. On October 29, 2009, Kroger submitted a petition seeking approval of its plan to construct a fuel center on the western edge of its property. The plan commission denied that petition, stating the development was not appropriate to its surroundings, was not consistent with the intent and purpose of the Plainfield Zoning Ordinance, and would create a public safety hazard.

In support of its argument, Kroger cited Hendricks Cnty. Board of Comm'rs v. Rieth-Riley Construction Co., 868 N.E.2d at 852 (Ind. Ct. App. 2007),(citing T.W. Thom Const., Inc. v. City of Jeffersonville, 721 N.E.2d 319, 327 (Ind. Ct. App. 1999)), in which the Court of Appeals concluded that an ordinance lacked the necessary specificity and allowed the plan commission “unfettered power to deny development plans if it decides, by whim or otherwise, that the plan contravenes one of the factors listed in the Ordinance.”

But in Kroger, unlike in Rieth-Riley, the Plainfield Zoning Ordinance did provide Kroger with detailed information regarding what development requirements and factors the plan commission would consider when formulating its decision about whether to allow the proposed development, the court held. However, the appeals court held that in denying Kroger’s petition, the plan commission more or less replicated what was already established in the Plainfield Zoning Ordinance.

The appeals court stated that the commission’s findings do not provide sufficient details about why Kroger’s proposed development of a gas station was not appropriate to the site and its surroundings or consistent with the intent and purposes of the Plainfield Zoning Ordinance. Likewise, the findings do not inform Kroger how its proposed development would create a public safety hazard.

The COA remanded the matter to the trial court for further proceedings, holding that if the plan commission cannot provide specific reasons why Kroger’s development plan was denied, then it should grant Kroger’s request to build a fuel center.
 

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  1. Indiana's seatbelt law is not punishable as a crime. It is an infraction. Apparently some of our Circuit judges have deemed settled law inapplicable if it fails to fit their litmus test of political correctness. Extrapolating to redefine terms of behavior in a violation of immigration law to the entire body of criminal law leaves a smorgasbord of opportunity for judicial mischief.

  2. I wonder if $10 diversions for failure to wear seat belts are considered moral turpitude in federal immigration law like they are under Indiana law? Anyone know?

  3. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

  4. Justice has finally been served. So glad that Dr. Ley can finally sleep peacefully at night knowing the truth has finally come to the surface.

  5. While this right is guaranteed by our Constitution, it has in recent years been hampered by insurance companies, i.e.; the practice of the plaintiff's own insurance company intervening in an action and filing a lien against any proceeds paid to their insured. In essence, causing an additional financial hurdle for a plaintiff to overcome at trial in terms of overall award. In a very real sense an injured party in exercise of their right to trial by jury may be the only party in a cause that would end up with zero compensation.

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