                                                                          FILED
                                                                      Oct 04 2019, 5:29 am

                                                                          CLERK
                                                                      Indiana Supreme Court
                                                                         Court of Appeals
                                                                           and Tax Court




ATTORNEY FOR APPELLANTS                                    ATTORNEYS FOR APPELLEE
Daniel P. Bowman                                           Greg A. Bouwer
Office of Corporation Counsel                              Jeff Carroll
Indianapolis, Indiana                                      Koransky Bouwer & Poracky, P.C.
                                                           Dyer, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Metropolitan Development                                   October 4, 2019
Commission of Marion County,                               Court of Appeals Case No.
Indiana, and The Consolidated                              18A-MI-2761
City of Indianapolis/Marion                                Appeal from the Marion Superior
County, Indiana,                                           Court
Appellants,                                                The Honorable Michael D. Keele,
                                                           Judge
        v.                                                 Trial Court Cause No.
                                                           49D07-1804-MI-13798
George Novogroder,
Appellee.



Brown, Judge.




Court of Appeals of Indiana | Opinion 18A-MI-2761 | October 4, 2019                           Page 1 of 17
[1]   The Metropolitan Development Commission of Marion County, Indiana (the

      “MDC”) and The Consolidated City of Indianapolis/Marion County, Indiana

      (together with the MDC, “Appellants”) appeal the trial court’s judgment

      entered on October 22, 2018 which vacated the decision of the MDC.

      Appellants raise three issues which we consolidate and revise as whether the

      trial court erred in entering judgment. We affirm.

                                           Facts and Procedural History

[2]   George Novogroder owns real property northwest of the intersection of East

      56th Street and Kessler Boulevard in Indianapolis. In May 1993, an instrument

      titled Original Commitments was recorded with the Marion County Recorder. 1

      The instrument states in part:

                 In accordance with I.C. 36-7-4-607,[2] the owner of the real estate . . . makes
                 the following COMMITMENTS concerning the use and development of
                 the parcel of real estate:

                                                          *****

                 2.     Final site and landscape plan will be submitted to the Administrator
                 for approval prior to any application for an Improvement Location Permit
                 for the construction of the Walgreen Pharmacy. The landscape plan will be
                 similar in nature to that of the Boardwalk Condominium.

                                                          *****




      1
          The instrument stated it was signed by Park Place Associates, Ltd., and Kite Development Corporation.
      2
          Ind. Code § 36-7-4-607 relates to a proposal to amend or partially repeal the text of the zoning ordinance.


      Court of Appeals of Indiana | Opinion 18A-MI-2761 | October 4, 2019                                  Page 2 of 17
        4.    The proposed pharmacy shall not sell liquor, beer or wine as would
        be permitted by a pharmacy license issued by the Indiana Alcoholic
        Beverage Commission nor sell any pornographic literature.

        5.     Right-of-way along Kessler Boulevard East Drive shall be dedicated
        in accordance with the recommendations of the Thoroughfare Plan for
        Marion County, Indiana . . . upon the written request of the Department of
        Transportation (DOT).

        6.      Site access design and location, including auxiliary lane
        improvements, and a master circulation plan for the entire property adjacent
        to the site owned by this Petitioner, shall be approved by DOT prior to
        obtaining an Improvement Location Permit.

        7.    Fast food restaurants, gasoline service stations, massage parlors, or
        any other businesses involving moral turpitude shall not be permitted.

        8.     A sign program for the entire integrated center shall be submitted for
        Administrator’s approval prior to obtaining an Improvement Location
        Permit. The sign program shall include only one (1) pole sign no more than
        twenty-five feet (25’) in height. The pole sign will be located at the corner of
        56th Street and Kessler Boulevard.

        9.    The proposed new structure shall be occupied only by a Walgreens
        Drugstore.

        10.   The existing retail building shall be renovated on its exterior to
        coordinate in color with the proposed Walgreen Drugstore.

        11.    The same exterior finish shall be used on all sides of the proposed
        drugstore building. The exterior shall include brick the same color as the
        Boardwalk Condominiums. The rest of the exterior shall be of the same
        color as the non-brick exterior of said Condominiums.

        12.     There will be no floodlights on the Walgreen building. No parking
        lot lights will be located north of the Walgreen building. All parking lot
        lights will be constructed so that the lighting will be directed toward the
        interior of the parking lot.




Court of Appeals of Indiana | Opinion 18A-MI-2761 | October 4, 2019           Page 3 of 17
              13.    The proposed Walgreen Drugstore shall not be permitted to stay
              open to the public after midnight or before 6:00 a.m. for at least two (2)
              years from and after the date of opening the drugstore for business.

              14.     An access road to Emerson Way shall not be constructed as a part of
              the development of the subject real estate as proposed in this rezoning
              Petition. . . . Neither Walgreen nor the partnership entity developing the
              Walgreen Drugstore shall contribute economically to the development of an
              access road from Emerson Way to the northern entrance to the parking lot
              of the subject real estate.

                                                      *****

              . . . . These COMMITMENTS may be modified or terminated by a
              decision of the Metropolitan Development Commission made at a public
              hearing after proper notice has been given.

              COMMITMENTS contained in this instrument shall be effective upon: the
              adoption of rezoning petition . . . by the City-County Council changing the
              zoning classification of the real estate from a D-A and C-1 zoning
              classification to a C-3 zoning classification and shall continue in effect for as
              long as the above-described parcel of real estate remains zoned to the zoning
              classification or until such other time as may be specified herein.

      Appellants’ Appendix Volume 2 at 77-78. The property was rezoned in 1993 to a

      C-3 zoning classification. Walgreens occupied the building beginning in

      approximately 1994.


[3]   In June 2014, Walgreens notified Novogroder that it had elected to exercise its

      option to cancel its lease and that the effective date of the cancellation was to be

      July 31, 2015.


[4]   In December 2017, Novogroder filed a petition with the MDC. His petition

      stated the Walgreens had been closed for approximately two and one-half years

      and requested that, “[a]s Walgreen’s has now vacated the Building, . . . certain
      Court of Appeals of Indiana | Opinion 18A-MI-2761 | October 4, 2019            Page 4 of 17
      Commitments be terminated or modified to allow for the operation of Dollar

      Tree retail store (and/or other permitted C-3 uses).” Id. at 75. He requested the

      termination of the commitments in paragraphs 9 and 13 and that the

      commitments in paragraph 11 and 12 be modified. 3 A letter from Ralph Balber

      filed with the MDC states he was the president and principal broker for ALO

      Property Group in Indianapolis, the former Walgreens site was not marketable

      for sale or lease, and the existence of commitments limiting use of the building

      to a Walgreens made the building virtually worthless. He stated that, in his

      professional opinion that due to the fact Walgreens closed the location, the

      commitments referencing “Walgreen’s and/or drugstore” have to be terminated

      in order for the building and site to be occupied by another business, that

      without terminating the commitments the site will remain vacant, deteriorate,

      and be subject to vandalism and break-ins, and that the surrounding property

      values will continue to be negatively impacted.


[5]   In March 2018, the MDC held a hearing. Novogroder’s counsel stated that the

      commitments were almost twenty-five years old and the site had been vacant

      for almost three years. He referenced a Millersville at Fall Creek Valley Village

      and Corridor Plan (the “Millersville Plan”), which “calls for a mixed use of




      3
        Novogroder proposed that paragraph 11 be modified to state: “The same exterior finish shall be used on all
      sides of the existing building. The exterior shall include brick the same color as the Boardwalk
      Condominiums. The rest of the exterior shall be the same color as the non-brick exterior of said
      Condominiums.” Appellants’ Appendix Volume 2 at 75. He proposed that paragraph 12 be modified to
      state: “There will be no floodlights on the existing building. No parking lights will be located north of the
      existing building. All parking lot lights will be constructed so that the lighting will be directed toward the
      interior of the parking lot.” Id.

      Court of Appeals of Indiana | Opinion 18A-MI-2761 | October 4, 2019                               Page 5 of 17
      neighborhood-office-retail node,” that “what we have here today is Dollar Tree

      would like to go in that store,” that the Millersville Plan included appropriate

      uses including retail sales, and that Dollar Tree is a retail sales use. Id. at 21-22.

      He indicated the Millersville Plan also lists a number of inappropriate uses and

      that Novogroder would agree not to use the property for those uses, except that

      a drive-up service window was already part of the building although Dollar

      Tree does not use such a window. 4 He indicated that there had been a recent

      break-in, and that there are a number of examples where Walgreens has left its

      sites and the sites have become Dollar Trees. He argued this is an unusual case,

      that he had never seen a commitment that restricted a use of real estate to only

      one user, and that the owner cannot have a tenant until the restriction is

      removed.


[6]   Courtenay Weldon stated that he and his wife owned a neighboring retail

      center, that his father and aunt had purchased it in 1984, and that he had been

      managing it since that time. 5 Weldon stated “[w]e started, thought we could

      develop the land next to it, which was vacant, had a shed filled with rats, and

      we applied for zoning and got it, and we made a deal with Walgreens,” “[w]e



      4
        Novogroder’s materials included slides listing appropriate and inappropriate uses under the Millersville
      Plan. The inappropriate uses listed include: nursing home; community gardens; residential, detached single-
      family or two-family; automobile sales/rental/leasing, new/used; automobile washing; boat and RV
      sales/rental/leasing, new/used; drive-in, drive-thru or drive-up service window (inappropriate if wider than
      one lane at the point it crosses a pedestrian way); adult entertainment; outdoor commercial recreation or
      amusement establishment; funeral home; laundry plant, dry-cleaning plant; parking lot (commercial,
      surface); power/gas substation; radio/TV/satellite/telecommunications tower; safety services (police,
      ambulance, fire); and self-service storage.
      5
          John Weldon signed the Original Commitments on behalf of Park Place Associates, Ltd.


      Court of Appeals of Indiana | Opinion 18A-MI-2761 | October 4, 2019                             Page 6 of 17
      built the store in ‘94; then we tried to get financing and we couldn’t get it,” and

      “[w]e tried insurance companies, savings and loans, and Walgreens found

      George Novogroder for us that bailed us out; otherwise we would have been in

      trouble in the building.” 6 Id. at 27-28. He stated that, since the building was

      empty and not lighted, people were dumping trash and mattresses in the back,

      that they lost customers frequenting their center, and that they would like to see

      the building occupied by Dollar Tree. One of the strip’s tenants stated that any

      tenant in the vacant building would be beneficial.


[7]   A number of remonstrators opposed Novogroder’s petition. One of the

      remonstrators stated the City’s land use plans originally called for the strip of

      land to be a buffer between commercial and residential areas, the Walgreens

      restriction was in place so that the site could not be occupied by a company or

      organization that would have a negative impact on the greater Millersville

      neighborhood, the site was important because of its prominent location, and

      that Dollar Tree projects a negative image. Another remonstrator discussed the

      Millersville Plan and stated that Dollar Tree does not fit in the plan. The

      transcript indicates that, when area residents were asked to stand by the

      president of Millersville at Fall Creek Valley, thirty audience members stood. A

      City-County Councilor stated that she was with the remonstrators, the




      6
        Courtenay Weldon submitted a letter stating that he shared common area with Novogroder and they had a
      cross-easement parking agreement; that, since Walgreens vacated the property, he had nothing but problems
      with trash and abandoned vehicles and the property was burglarized; and that the commitments which had
      been made to obtain zoning were so restrictive that he could not get a loan on the Walgreens store.

      Court of Appeals of Indiana | Opinion 18A-MI-2761 | October 4, 2019                           Page 7 of 17
      neighborhood residents were open to other uses but not to Dollar Tree, and

      “quite frankly, you know, if Mr. Novogroder could not find another tenant, I

      would suggest that he offer what he did to Danville residents. There was an

      empty Walgreens store there that he owned, and he offered to donate it to the

      community for community purposes. And we would be all about that and

      having that site available for the community.” Id. at 48-49.


[8]   The Staff Report of the MDC’s Division of Planning indicated that the staff had

      no recommendation regarding Novogroder’s petition but recommended that, if

      approved, a five-foot-wide sidewalk be installed along the rights-of-way of East

      56th Street and Kessler Boulevard. Novogroder’s counsel argued that Dollar

      Tree was the only tenant to sign a lease, an empty store projects a negative

      image, and that the commitments are unreasonable, impractical, and perhaps

      unlawful. The MDC voted to deny Novogroder’s petition.


[9]   On April 10, 2018, Novogroder filed a petition for judicial review. He also

      sought a declaratory judgment that a restriction permitting only a Walgreens to

      occupy the building is unconstitutional. On September 12, 2018, the court held

      a hearing on Novogroder’s petition for judicial review. Novogroder’s counsel

      argued that the language in paragraph 9 of the commitments refers to “[t]he

      proposed new structure,” emphasized that the paragraph pertained to the

      “structure,” noted the language that the structure shall be occupied only by

      Walgreens, and argued that, “[s]omehow, we bootstrap that into it can only be

      used . . . by a Walgreens perpetually” and “[t]hat language doesn’t say that, it

      says the building may only be occupied.” Transcript Volume 2 at 10. He

      Court of Appeals of Indiana | Opinion 18A-MI-2761 | October 4, 2019      Page 8 of 17
       argued that “[w]hat that language really meant was that Walgreens was going

       to occupy the entire building, ‘the proposed new structure.’” Id. He pointed to

       paragraph 7 and argued “[w]hy am I banning gas stations if it could be used by

       a Walgreen’s drugstore? it makes no sense.” Id.


[10]   The court stated: “It’s your suggestion, . . . is that you may have advised your

       client, we don’t need a modification. As I read and interpret these

       commitments, a new Dollar Tree can come in because it’s [not] one of the

       prohibited type uses in 7 and the way you read 9 is that the proposed new

       structure shall be used as a Walgreens and it was.” Id. at 11. Novogroder’s

       counsel replied: “Yeah, and we can’t get a building permit and we can’t get an

       occupancy certificate, so at some point we’ve got to bring a request ‘cause they

       won’t do anything with a building permit or occupancy certificate, so we have

       to make a petition, they denied it.” Id. The court stated “I guess another

       option it would have been, maybe, an administration decision in denying a

       building permit or a zoning IOP, . . . which could have resulted in an appeal to

       the BZA,” and Novogroder’s counsel replied “[y]es, it could have been

       considered,” “[t]he initial approach to the Planning staff was that site may only

       be used as Walgreens,” “so if you’re going to have another use, a Dollar Tree,

       DaVita, a Dollar General, a CVS . . . you’ve got to get rid of that

       commitment,” and “also then those commitments specify that any modification

       or termination of them go back before Planning Commission and so that was

       the route that was directed.” Id. at 11-12.




       Court of Appeals of Indiana | Opinion 18A-MI-2761 | October 4, 2019      Page 9 of 17
[11]   On October 22, 2018, the trial court entered Findings of Fact, Conclusions of

       Law and Judgment which provided in part:

                                                 Findings of Fact

                                                      *****

               2. The Real Estate is approximately 1.4 acres in size and is zoned C-3
               commercial.

               3. The Real Estate is improved with a vacant approximate 13,000 square
               foot commercial building and associated parking.

               4. The Real Estate is surrounded by commercial uses to the west and south,
               also zoned C-3; commercial offices to the north, zoned C-1; and single-
               family dwellings to the east, zoned D-P and D-S.

               5. Surrounding uses include a retail center, Burger King, Dinius Auto
               Service Center, Speedway Gas Station, CVS drugstore/pharmacy (across
               the street), Starbucks, and Hardees.

                                                      *****

               8. The C-3 zoning district permits commercial retail uses.

               9. After the 1993 rezoning, Walgreens began leasing the Real Estate for use
               as a Walgreens drugstore.

               10. Walgreens vacated the Real Estate in the summer of 2015 when its
               lease expired, and the Real Estate has been vacant since that time.

                                                      *****

               21. Dollar Tree is a commercial retail use, a permitted use under the
               Millersville Plan.

                                                      *****

                                               Conclusions of Law



       Court of Appeals of Indiana | Opinion 18A-MI-2761 | October 4, 2019       Page 10 of 17
        1. The court shall grant relief from a zoning decision if the court determines
        that a person seeking judicial relief has been prejudiced by a decision that is:
        (a) arbitrary, capricious, an abuse of discretion, or otherwise not in
        accordance with law; (b) contrary to constitutional right, power, privilege or
        immunity; (c) in excess of statutory jurisdiction, authority, or limitations, or
        short of statutory right; (d) without observance of procedure required by
        law; or (e) unsupported by substantial evidence. Ind. Code § 36-7-4-1614.
        If the court makes such a determination, then the court may set aside a
        zoning decision and (i) remand the case to the board for further proceedings
        or (ii) compel a decision that has been unreasonably delayed or unlawfully
        withheld. Ind. Code § 36-7-4-1615.

        2. The Real Estate is zoned C3, allowing commercial retail uses, including
        a Dollar Tree Store.

        3. Although Commitment No. 9 reads that “[t]he proposed new structure
        shall be occupied only by a Walgreen Drugstore,” a contract in Indiana “is
        to be read as a whole when trying to ascertain the intent of the parties.”
        Allstate Ins. Co. v. Bradtmueller, 715 N.E.2d 993, 996 (Ind. Ct. App. 1999).
        “The court will make all attempts to construe the language in a contract so
        as not to render any words, phrases, or terms ineffective or meaningless.
        The court must accept an interpretation of the contract which harmonizes
        its provisions as opposed to one which causes the provisions to be
        conflicting.” Id.

        4. Reading the Commitments as a whole, as the law requires, demands that
        the Court also consider Commitment No. 7:

                 Fast food restaurants, gasoline service stations, massage parlors, or
                 any other businesses involving moral turpitude shall not be
                 permitted.

        5. Adopting the MDC’s interpretation of the Commitments – i.e. that no
        business other than a Walgreens Drugstore may occupy the space – would
        require the Court to disregard Commitment No. 7. There would be no need
        to document the kind of businesses that cannot occupy the space if the
        Commitments restricted the Real Estate to a single named occupant.

        6. Taking care not to render any provisions of the Commitments
        meaningless and to harmonize said provisions, Commitment No. 9

Court of Appeals of Indiana | Opinion 18A-MI-2761 | October 4, 2019           Page 11 of 17
               established that the Real Estate be occupied by a single tenant or user,
               which, at that time, was a Walgreen drugstore.

               7. The MDC’s decision to deny Novogroder’s petition for modification of
               commitments was arbitrary, capricious, an abuse or discretion, or otherwise
               not in accordance with law.

                                                        JUDGMENT

               Based on the Findings of Fact and Conclusions of Law above, and the
               MDC Record, it is hereby ORDERED, ADJUDGED AND DECREED
               that the decision of the MDC to deny Petition No. 2017-MOD-024 is
               vacated. The Court hereby remands this case to the MDC for further
               proceedings consistent with this Order.

       Appellants’ Appendix Volume 2 at 10-15.


                                                     Discussion

[12]   The issue is whether the trial court erred in entering its judgment. A

       commitment is an agreement by a landowner to adhere to a certain restriction.

       See Beineke v. Chem. Waste Mgmt. of Ind., LLC, 868 N.E.2d 534, 539 (Ind. Ct.

       App. 2007) (“[D]irectives from a zoning agency as part of a zoning request are

       ‘conditions,’ and agreements by a landowner to adhere to certain restrictions

       are ‘commitments.’”) (citing Story Bed & Breakfast, LLP v. Brown Cnty. Area Plan

       Comm’n, 819 N.E.2d 55, 62 (Ind. 2004) (observing “if a legislative body imposes

       the restriction, it is a condition, but if it is submitted by the property owner to

       induce rezoning, it is a commitment”)). The parties cite Ind. Code § 36-7-4-

       1015 and Ind. Code § 36-7-4-1614.


[13]   Ind. Code § 36-7-4-1015(a) provides in part that “[a]s a condition to the . . .

       adoption of a rezoning proposal . . . the owner of a parcel of real property may

       Court of Appeals of Indiana | Opinion 18A-MI-2761 | October 4, 2019         Page 12 of 17
be required or allowed to make a commitment concerning the use or

development of that parcel.” Ind. Code § 36-7-4-1015(b)(5) provides in part

that a commitment “may be modified or terminated . . . by a decision of the

plan commission or board of zoning appeals to which the commitment was

made” and that “[a] decision by a plan commission or board of zoning appeals

must be made at a public hearing after notice of the hearing has been provided

under the rules of the plan commission or board of zoning appeals, as the case

may be.” Ind. Code § 36-7-4-1016 states in part that “[t]he following decisions

of the plan commission are considered zoning decisions for purposes of this

chapter and are subject to judicial review[:] . . . A decision under section 1015

of this chapter (appeal of a commitment modification or termination).” Ind.

Code § 36-7-4-1615 provides that, if the court finds that a person has been

prejudiced under Ind. Code § 36-7-4-1614, it may set aside a zoning decision

and remand the case to the board for further proceedings or compel a decision

that has been unreasonably delayed or unlawfully withheld. Ind. Code § 36-7-

4-1614(d) provides the court shall grant relief under Ind. Code § 36-7-4-1615

only if it determines that a person seeking judicial relief has been prejudiced by

a zoning decision that is: (1) arbitrary, capricious, an abuse of discretion, or

otherwise not in accordance with law; (2) contrary to constitutional right,

power, privilege, or immunity; (3) in excess of statutory jurisdiction, authority,

or limitations, or short of statutory right; (4) without observance of procedure

required by law; or (5) unsupported by substantial evidence.




Court of Appeals of Indiana | Opinion 18A-MI-2761 | October 4, 2019       Page 13 of 17
[14]   Appellants contend the trial court erred in finding the commitments did not

       limit use of the structure to a Walgreens. They argue that the trial court’s

       conclusion that adopting the MDC’s interpretation of the commitments would

       render the commitment prohibiting fast food restaurants superfluous is not

       apparent from the face of the commitments, that the commitments refer to an

       existing retail building in addition to a proposed new structure, and that

       paragraph 9 of the commitments is more specific than the prohibition of other

       businesses in paragraph 7 and the more specific Walgreens restriction controls.

       They argue that there is no way to evaluate the MDC’s decision under the

       standards at Ind. Code § 36-7-4-1614(d)(1) and (5), that Ind. Code § 36-7-4-

       1015(b)(5) does not require that MDC follow any particular criteria, and that

       the MDC did not make, and was not required to make, any findings. They also

       assert that Novogroder’s constitutional claims are barred because he failed to

       present them to the MDC.


[15]   Novogroder maintains the court’s judgment should be affirmed. He argues

       that, contrary to the MDC’s assertion, it is clear that paragraph 7 of the

       commitments referred only to the building at issue, the previous six paragraphs

       discussed the proposed pharmacy, paragraph 8 discussed signage, and

       paragraph 10 related to the exterior of the retail center. He notes the use of the

       modifier “proposed” in the commitments and argues that, “at the time the

       Commitments were executed, it appears that a Walgreen’s tenancy was not a

       done deal . . . .” Appellee’s Brief at 11. He asserts that paragraphs 7 and 9 are

       not in conflict and the rule of interpretation that a specific provision controls


       Court of Appeals of Indiana | Opinion 18A-MI-2761 | October 4, 2019       Page 14 of 17
       over a general provision is not applicable. He also asserts that the drafters did

       not intend to bind the real estate owner to a single branded store in perpetuity,

       that MDC’s decision renders the property unmarketable for sale or lease and

       virtually worthless, and that he had no reason to raise a constitutional taking

       argument before the MDC and the argument is not waived. In reply,

       Appellants argue, citing Ind. Code § 36-7-4-1015(b), that “[t]he statute leaves

       the decision to modify or terminate a commitment to the sole discretion of the

       commission and does not require findings.” Appellants’ Reply Brief at 7.


[16]   To the extent we must construe the commitments, our primary task is to

       determine and effectuate the intent of the parties at the time the instrument was

       made. See Ryan v. Lawyers Title Ins. Corp., 959 N.E.2d 870, 875 (Ind. Ct. App.

       2011). We read the instrument as a whole, attempt to construe the language so

       as not to render any terms ineffective or meaningless, accept an interpretation

       which harmonizes its provisions, and note that specific terms typically control

       where specific and general terms relate to the same subject. See id.


[17]   The parties essentially disagree as to what the signatories to the commitments

       intended when they included paragraph 9. Appellants assert that paragraph 9

       should be construed to require that the new structure would be occupied by

       Walgreens indefinitely and that no other tenant or business would be permitted

       to occupy or use the building. We cannot say that the language of paragraph 9

       and the commitments supports this view. Paragraph 9 states that “[t]he

       proposed new structure shall be occupied only by a Walgreens Drugstore.”

       Appellants’ Appendix Volume 2 at 77 (emphasis added). Based upon the

       Court of Appeals of Indiana | Opinion 18A-MI-2761 | October 4, 2019      Page 15 of 17
       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.

       The record reflects that the developers desired to construct the building on the

       previously-vacant parcel and lease the building to Walgreens and that they

       obtained favorable rezoning by making certain commitments regarding the sale

       of liquor, dedication of a right-of-way, signage, exterior finishes, lighting, and

       site access design and location. The signatories anticipated that Walgreens

       would occupy the new structure, and that is what occurred with Walgreens

       leasing and occupying the new building from approximately 1994 until July 31,

       2015.


[18]   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. See

       Noblesville Redevelopment Comm’n v. Noblesville Assocs. Ltd. P’ship, 674 N.E.2d

       558, 562 (Ind. 1996) (“Indiana law favors the free alienability and development

       of land.”); see also F.B.I. Farms, Inc. v. Moore, 798 N.E.2d 440, 445-446 (Ind.

       2003) (discussing transfer restrictions related to corporate ownership and stating

       that “restrictions on transfer are to be read, like any other contract, to further

       the manifest intention of the parties,” “[b]ecause they are restrictions on

       alienation and therefore disfavored, the terms in the restrictions are not to be

       expanded beyond their plain and ordinary meaning,” and one of the factors


       Court of Appeals of Indiana | Opinion 18A-MI-2761 | October 4, 2019        Page 16 of 17
       relevant in determining the reasonableness of such a restriction is “the degree of

       restraint upon alienation”); Centennial Park, LLC v. Highland Park Estates, LLC,

       117 N.E.3d 565, 570 (Ind. Ct. App. 2018) (“We strictly construe restrictive

       covenants and resolve all doubts in favor of the free use of property and against

       restrictions.”).


[19]   For the foregoing reasons, we affirm the judgment of the trial court.


[20]   Affirmed.


       May, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Opinion 18A-MI-2761 | October 4, 2019     Page 17 of 17
