Public access counselor: Carmel BZA violated transparency laws

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Indiana’s public access counselor found the Carmel Board of Zoning Appeals violated state law when its members formalized a ruling to close The GOAT restaurant and bar outside of a public meeting.

Citing the opinion, the owners of the restaurant have renewed their motion with the Hamilton Superior Court for a stay of the BZA’s decision and to allow the venue to reopen.

The Carmel Board of Zoning Appeals held a meeting on April 26 where it denied The Greatest of All Taverns’ request to rezone the property at 220 2nd St. SW to allow the bar to continue operating as a business on a residential property. The board members publicly discussed community concerns about patrons’ impropriety, and a majority voted to deny the permit.

The GOAT Owner Kevin Paul filed a complaint with Indiana Public Access Counselor Luke Britt on June 10 accusing the board of lacking transparency.

Britt issued his opinion July 2 and ultimately found the Carmel Board of Zoning Appeals violated state Open Door Laws by adopting the written findings of fact outside of a public meeting.

“Even though the BZA is not required to adopt written findings of fact at the hearing when it makes the zoning decision, the Open Door Law requires adoption of the findings at a public meeting because it constitutes final action for purposes of the (Open Door Law),” Britt wrote in his opinion.

Paul — through his companies Tomahawk Holdings LLC, The Greatest of All Taverns, LLC d/b/a The GOAT and Danny Boy Beer Works LLC — filed a petition with the Hamilton Superior Court on May 4 for judicial review of the BZA’s ruling and to reverse the decision.

During those proceedings, Paul claimed the attorney representing the Carmel Board of Zoning Appeals provided written findings of fact explaining the denial of the use variance petition. He said the board neither adopted those findings at the April 26 meeting or any public meetings after.

Krieg DeVault attorney Paul Reis, on behalf of the Carmel Board of Zoning Appeals, wrote in an email to Britt that the board’s approval of the written findings of fact by email and individual communication does not qualify as a meeting.

“Since this approval does not constitute a meeting, the approval of the findings of fact do not constitute a secret ballot,” Reis wrote.

Although the public access counselor’s office agreed with the idea that emails and individual lines of communication do not constitute a meeting, Britt wrote in his opinion “… (t)hat analysis changes when the communication exchanged rises to the level of final action … .”

He added, because the zoning code requires both a majority vote and a majority approval for the written findings, action on either requires a public meeting.

“The best practice going forward, from a public access perspective, is for the BZA to adopt its written findings of fact at a public meeting either at the time of the zoning decision — which is not required by law — or at a later public meeting,” Britt wrote in his opinion. “This approach avoids any potential tension with the Open Door Law while still adhering to the zoning code and the BZA’s rules of procedure.”

Although the public access counselor’s opinion can impact a petitioner’s court fees in some cases, a judge has final authority when it comes to making factual determinations regarding complaints filed before the court and whether the business can reopen.

“At the end of the day, we just want to operate under the same rules as our neighboring businesses,” Paul said in a written statement. “I hope this stay will allow us to open very soon and bring the hardworking employees of The GOAT Tavern back to work.”

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