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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. 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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