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COA reverses ruling against Carmel in building dispute

July 25, 2014

A Carmel couple who successfully sued the city that at first permitted construction of an accessory building that neighbors later complained was taller than zoning codes allowed lost Friday at the Indiana Court of Appeals.

The panel reversed Hamilton Superior Judge Steve Nation’s grant of a declaratory judgment in favor of Albert and Julie Bowen and U.S. Architects, holding that the plaintiffs had not exhausted their administrative remedies with the city before suing.

The Carmel Department of Community Services issued a building permit and certificate of occupancy after the Bowens and their architect submitted design plans. But after neighbors Joseph and Charlene Barnette complained about the building height of more than 36 feet, the department notified the Bowens that the building was in violation.

The ordinance limits the height of accessory buildings to 18 feet.

The city advised the Bowens to seek a variance through the Carmel/Clay Board of Zoning Appeals, but the BZA denied the variance request. The Bowens didn’t appeal the zoning board ruling or DCS’ withdrawal of the certificate of occupancy, choosing to sue instead. The trial court ruled in favor of the Bowens and granted a declaratory judgment.

“The Barnettes contend that the declaratory judgment action should be dismissed for lack of subject matter jurisdiction because the Bowens failed to exhaust their administrative remedies. We agree,” Judge Terry Crone wrote for the panel in Joseph D. Barnette, Jr., and Charlene Barnette, and City of Carmel Department of Community Services, Division of Building and Code Services, et al. v. US Architects, LLP, Albert D. Bowen, et al., 29A02-1304-PL-309.

The matter is remanded to the trial court with orders to dismiss the complaint.
 
“The DCS is not estopped from enforcing the (zoning) Ordinance because the relevant facts were equally known by or accessible to the Bowens and the City. And because the Bowens failed to exhaust their administrative remedies, which would have afforded them due process, they cannot complain about a due process violation,” the panel held.

The panel affirmed the trial court ruling that U.S. Architects lacked standing to bring a declaratory judgment action.

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