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. I think the cops are doing a great job locking up criminals. The Murder rates in the inner cities are skyrocketing and you think that too any people are being incarcerated. Maybe we need to lock up more of them. We have the ACLU, BLM, NAACP, Civil right Division of the DOJ, the innocent Project etc. We have court system with an appeal process that can go on for years, with attorneys supplied by the government. I'm confused as to how that translates into the idea that the defendants are not being represented properly. Maybe the attorneys need to do more Pro-Bono work

  2. We do not have 10% of our population (which would mean about 32 million) incarcerated. It's closer to 2%.

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  4. There's probably a lot of blame that can be cast around for Indiana Tech's abysmal bar passage rate this last February. The folks who decided that Indiana, a state with roughly 16,000 to 18,000 attorneys, needs a fifth law school need to question the motives that drove their support of this project. Others, who have been "strong supporters" of the law school, should likewise ask themselves why they believe this institution should be supported. Is it because it fills some real need in the state? Or is it, instead, nothing more than a resume builder for those who teach there part-time? And others who make excuses for the students' poor performance, especially those who offer nothing more than conspiracy theories to back up their claims--who are they helping? What evidence do they have to support their posturing? Ultimately, though, like most everything in life, whether one succeeds or fails is entirely within one's own hands. At least one student from Indiana Tech proved this when he/she took and passed the February bar. A second Indiana Tech student proved this when they took the bar in another state and passed. As for the remaining 9 who took the bar and didn't pass (apparently, one of the students successfully appealed his/her original score), it's now up to them (and nobody else) to ensure that they pass on their second attempt. These folks should feel no shame; many currently successful practicing attorneys failed the bar exam on their first try. These same attorneys picked themselves up, dusted themselves off, and got back to the rigorous study needed to ensure they would pass on their second go 'round. This is what the Indiana Tech students who didn't pass the first time need to do. Of course, none of this answers such questions as whether Indiana Tech should be accredited by the ABA, whether the school should keep its doors open, or, most importantly, whether it should have even opened its doors in the first place. Those who promoted the idea of a fifth law school in Indiana need to do a lot of soul-searching regarding their decisions. These same people should never be allowed, again, to have a say about the future of legal education in this state or anywhere else. Indiana already has four law schools. That's probably one more than it really needs. But it's more than enough.

  5. This man Steve Hubbard goes on any online post or forum he can find and tries to push his company. He said court reporters would be obsolete a few years ago, yet here we are. How does he have time to search out every single post about court reporters and even spy in private court reporting forums if his company is so successful???? Dude, get a life. And back to what this post was about, I agree that some national firms cause a huge problem.