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COA reverses ruling against Carmel in building dispute

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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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  1. It appears the police and prosecutors are allowed to change the rules halfway through the game to suit themselves. I am surprised that the congress has not yet eliminated the right to a trial in cases involving any type of forensic evidence. That would suit their foolish law and order police state views. I say we eliminate the statute of limitations for crimes committed by members of congress and other government employees. Of course they would never do that. They are all corrupt cowards!!!

  2. Poor Judge Brown probably thought that by slavishly serving the godz of the age her violations of 18th century concepts like due process and the rule of law would be overlooked. Mayhaps she was merely a Judge ahead of her time?

  3. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

  4. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

  5. You can put your photos anywhere you like... When someone steals it they know it doesn't belong to them. And, a man getting a divorce is automatically not a nice guy...? That's ridiculous. Since when is need of money a conflict of interest? That would mean that no one should have a job unless they are already financially solvent without a job... A photographer is also under no obligation to use a watermark (again, people know when a photo doesn't belong to them) or provide contact information. Hey, he didn't make it easy for me to pay him so I'll just take it! Well heck, might as well walk out of the grocery store with a cart full of food because the lines are too long and you don't find that convenient. "Only in Indiana." Oh, now you're passing judgement on an entire state... What state do you live in? I need to characterize everyone in your state as ignorant and opinionated. And the final bit of ignorance; assuming a photo anyone would want is lucky and then how much does your camera have to cost to make it a good photo, in your obviously relevant opinion?

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