IN Appeals Court Upholds Grant of Certificate of Appropriateness to Project in Historic District

This post was authored by Matthew Loeser, Esq.

Lockerbie Glove Factory Town Home Owners Association, Inc., and eight residents of the townhomes (“Remonstrators”) appealed the decision by the Indianapolis Historic Preservation Commission to grant a certificate of appropriateness to Dan Jacobs for the purpose of constructing a retail, residential, and parking project known as “Block 20” on a parcel of land in the Lockerbie Square Historic District in Indianapolis, Indiana. The Remonstrators filed a petition for judicial review in Marion Superior Court. While that case was pending, the Remonstrators filed a motion to compel, seeking discovery from the Commission on the issue of the possible bias of Commissioner White in favor of Jacobs. The trial court affirmed the Commission’s award of a certificate of appropriateness.

On appeal, the Remonstrators alleged the Commission decision was invalid because one of the Commission members was “presumptively biased” in favor of the application. The Remonstrators based their assertion of bias on a single statement Commissioner White made at the first review hearing, in which he noted that he had been on the Athenaeum board for several years and suggested that Jacobs consult an acoustician to consider the acoustic effects of the project in relation to the existing Biergarten at the Athenaeum. The record reflected that despite this statement being made at a public hearing at which the Remonstrators’ representative was present, the Remonstrators made no objection to Commissioner White’s participation in the final hearing and vote. The court held that due to this failure to object to Commissioner White’s participation or move for his disqualification at or prior to the final hearing, the Remonstrators waived this issue on judicial review.

The Remonstrators next argued that the Commission’s decision to issue a certificate of appropriateness to the Block 20 project violated numerous Historic Preservation Statutes, including the Commission’s failure to duly consider the Historic Plan. Here, however, before issuing a certificate of appropriateness for the Block 20 project, the Commission staff met with Jacobs a dozen times and issued three reports to the Commission. Additionally, the Commission held two public preliminary review hearings and a final public hearing, and Jacobs made numerous changes to the project plans in response to concerns raised at each stage of the proceedings.  The Commission also heard community members’ concerns, both for and against the project. Accordingly, the court held that the Commission did not act arbitrarily and capriciously, abused its discretion, or issued a decision unsupported by the evidence. The judgment of the trial court was therefore affirmed.

Lockerbie Glove Factory Town Home Owners Association v Indianapolis Historic Preservation Commission, 2018 WL 2750011 (IN App. 6/8/2018)