COA: Dollar Tree can open on former Walgreens lot

The denial of an Indianapolis property owner’s request to put a Dollar Tree in a vacant drugstore building was an abuse of discretion, the Indiana Court of Appeals affirmed in a Friday decision.

After more than 20 years of service, a Walgreens drugstore located at the intersection of East 56th Street and Kessler Boulevard shut its doors. Nearly three years later, property owner George Novogroder petitioned the Metropolitan Development Commission of Marion County and the Consolidated City of Indianapolis/Marion County to terminate and modify certain commitments made in an original instrument for the property that designated it solely for a Walgreens.

Instead, Novogroder wanted to put a Dollar Tree retail store in the unused space and argued the vacant building was virtually worthless unless the commitment could be altered to allow another business top open there. The MDC refused and denied his petition, and Novogroder subsequently filed a petition for judicial review. He also sought a declaratory judgment that a restriction permitting only a Walgreens to occupy the building was unconstitutional.

The Marion Superior Court found the MDC’s decision to deny Novogroder’s petition for modification of commitments was arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law, and therefore vacated its denial. The Indiana Court of Appeals affirmed that decision in Metropolitan Development Commission of Marion County, Indiana, and The Consolidated City of Indianapolis/Marion County, Indiana v. George Novogroder, 18A-MI-2761.

“Based upon the language of the paragraph 9 and the other commitments, we find that the signatories to the 1993 commitments intended that the first tenant to occupy the new structure would be Walgreens, and that the building would then be permitted to be occupied by another tenant and used for any purpose consistent with applicable zoning designations and any other applicable commitments,” Judge Elaine Brown wrote for the panel.

“…We further note our preference for an interpretation which disfavors restrictions on alienation and resolves any doubt in favor of the free use of property,” the panel concluded.

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