                                                                  FILED
                                                             Jun 08 2018, 5:37 am

                                                                  CLERK
                                                              Indiana Supreme Court
                                                                 Court of Appeals
                                                                   and Tax Court




ATTORNEYS FOR APPELLANTS                                  ATTORNEY FOR APPELLEE:
                                                          INDIANAPOLIS HISTORIC
James K. Gilday
                                                          PRESERVATION COMMISSION
Gilday & Associates, P.C.
Indianapolis, Indiana                                     Thomas J.O. Moore
                                                          Office of Corporation Counsel
Gene R. Leeuw
                                                          Indianapolis, Indiana
Leeuw Oberlies & Campbell, P.C.
Indianapolis, Indiana
                                                          ATTORNEYS FOR APPELLEE:
                                                          DAN JACOBS
                                                          Jason A. McNiel
                                                          Derek R. Molter
                                                          Samuel Gardner
                                                          Ice Miller LLP
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Lockerbie Glove Factory Town                              June 8, 2018
Home Owners Association, Inc.,                            Court of Appeals Case No.
Andre B. Lacy, Julia L. Lacy,                             49A02-1708-CT-1681
Elliot J. & Serena Androphy,                              Appeal from the Marion Superior
Cherri D. Hobgood, James &                                Court
Cheryl Arnold, and William B.                             The Honorable Michael D. Keele,
Young,                                                    Judge
Appellants-Petitioners,                                   Trial Court Cause No.
                                                          49D07-1609-CT-32940
        v.
Indianapolis Historic
Preservation Commission, and
Dan Jacobs,
Appellees-Respondents.



Court of Appeals of Indiana | Opinion 49A02-1708-CT-1681 | June 8, 2018               Page 1 of 25
      Robb, Judge.



                               Case Summary and Issues
[1]   Lockerbie Glove Factory Town Home Owners Association, Inc., and eight

      residents of the townhomes (collectively “Remonstrators”) appeal a decision by

      the Indianapolis Historic Preservation Commission (“Commission”) granting 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 raise several issues for our review which we consolidate and

      restate as: 1) whether a Commission member was presumptively biased,

      making the Commission decision invalid, and if there is no presumed bias,

      whether the trial court should have granted the Remonstrators’ motion to

      compel to allow discovery regarding actual bias; and 2) whether the trial court

      erred in denying the Remonstrators’ petition for judicial review. Concluding

      the Remonstrators failed to show that the Commission decision was invalid due

      to bias or that they are otherwise entitled to relief from the Commission

      decision, we affirm.



                            Facts and Procedural History
[2]   The Commission was created in 1967. In 1982, the Commission’s enabling

      legislation was recodified at Indiana Code chapter 36-7-11.1. The Commission

      is a nine-member appointed board tasked with preserving historically significant

      Court of Appeals of Indiana | Opinion 49A02-1708-CT-1681 | June 8, 2018   Page 2 of 25
areas and structures in Indianapolis. The Commission designates historic

districts, which may be a single structure or a larger area, adopts a historic

preservation plan for the area, and then has design and zoning review

jurisdiction within those districts. After the adoption of a historic preservation

plan for any historic district, “all governmental agencies shall be guided by and

give due consideration to the plan in any official acts affecting the area.” Ind.

Code § 36-7-11.1-8(c). Pursuant to Indiana Code section 36-7-11.1-9(a), “[a]

person may not construct any exterior or architectural structure or feature in

any historic area . . . until the person has filed with the secretary of the

[C]ommission an application for a certificate of appropriateness . . . .” The

Commission must hold a public hearing on any such application and

“determine whether the proposal will be appropriate to the preservation of the

area and to the furtherance and development of historic preservation.” Ind.

Code § 36-7-11.1-9(c). If the Commission determines the proposed

construction will be appropriate, the secretary shall issue a certificate of

appropriateness. Ind. Code § 36-7-11.1-10(a). However, the Commission “may

impose any reasonable conditions, consistent with the historic preservation

plan, upon the issuance of a certificate of appropriateness . . . .” Ind. Code §

36-7-11.1-10(b). “A final determination of the [C]ommission upon an

application for certificate of appropriateness is subject to judicial review in the

same manner and subject to the same limitations as a final decision of a board

of zoning appeals under IC 36-7-4.” Ind. Code § 36-7-11.1-10(c).




Court of Appeals of Indiana | Opinion 49A02-1708-CT-1681 | June 8, 2018        Page 3 of 25
[3]   The Commission first created a historic preservation plan (“historic plan”) for

      Lockerbie Square in 1968, which was revised and updated in 1978 and again in

      1987. The original Lockerbie Square historic district (known as the “Historic

      Core”) is a four-block area bounded by East Street to the west, Michigan Street

      to the north, College Avenue to the east, and New York Street to the south.

      The historic district has since been expanded to include additional properties

      outside but contiguous to the Historic Core (known as the “Secondary Area”).

      In 1973, the Lockerbie Square People’s Club, a neighborhood association, was

      formed to promote the revitalization of the Lockerbie Square neighborhood,

      and eventually a group of residents formed Lockerbie Square Foundation, Inc.,

      a not-for-profit focused on fundraising for preservation projects.


[4]   The 1968 plan “provided planning recommendations to guide the future

      development of the area.” Appendix of Appellants, Volume 6 at 13. But the

      plan “did not reflect the maturing preservation philosophy gaining acceptance

      around the country which promotes historic districts as neighborhoods in which

      people live . . . .” Id. Therefore, the 1968 plan was revised in 1978 in an

      attempt “to preserve the unique historic character of Lockerbie Square by

      encouraging the revitalization of the district as a dynamic urban neighborhood

      . . . .” Id. The 1978 plan “sought to assist [the rehabilitation] effort through

      education and through the review of all development and redevelopment

      activities within the district.” Id. The 1987 update “follows a recommendation

      incorporated into the 1978 plan” to shift the emphasis to new development on




      Court of Appeals of Indiana | Opinion 49A02-1708-CT-1681 | June 8, 2018    Page 4 of 25
      existing vacant land once the majority of historic properties were rehabilitated.

      Id.


[5]   In 2001, the Athenaeum Foundation acquired property at 428 N. East Street

      and sought from the Commission a certificate of appropriateness that would

      allow it to demolish the building then existing on that property and turn the

      property into a paved surface parking lot. The property in question is part of

      the Secondary Area of the Lockerbie Square Historic District, bounded on the

      west by Cleveland Street, on the north by Michigan Street, on the east by East

      Street, and on the south by Allegheny Street. The People’s Club supported the

      Athenaeum’s request to demolish the building, but opposed the property being

      used as a parking lot on a long-term basis as the historic plan’s recommended

      land use for the property was residential. The Commission issued the certificate

      of appropriateness but, pursuant to its authority under Indiana Code section 36-

      7-11.1-10(b), required the following recorded covenants: that the certificate of

      appropriateness would allow use of the property as a parking lot for a period of

      three years; that the property would not be used as a parking lot beyond those

      three years unless the Athenaeum had applied for and was granted another

      certificate of appropriateness; that during the three year period, the Athenaeum

      would use reasonable and good faith efforts to support alternative parking

      solutions within two blocks of the property; and that if reasonable alternative

      parking was established within two blocks within three years, the Athenaeum

      would “diligently pursue using the [property] for residential purposes pursuant

      to the [historic plan].” Id., Vol. 4 at 13-14.


      Court of Appeals of Indiana | Opinion 49A02-1708-CT-1681 | June 8, 2018   Page 5 of 25
[6]   Over the next fifteen years, the Athenaeum worked with the People’s Club and

      various other organizations to fulfill the covenant and develop the property. On

      April 28, 2016, Dan Jacobs submitted an application for a certificate of

      appropriateness for the Block 20 project on the property. The application

      describes the project as a “229 space parking garage, wrapped with 67

      apartment units,” with retail space on the first floor. Id., Vol. 4 at 80. Jacobs

      held several meetings with Commission staff members, appeared at two

      preliminary review hearings, and made numerous changes to the plans in

      response to concerns voiced by the Commission and community members. By

      the time of the final hearing, the plans called for a five-story, multi-use building

      with sixty-seven apartment units, retail and gallery space on the first floor, a

      roof deck, and 261 internal parking spaces, including sixty-seven spaces for

      residents and 194 spaces for the public. The final hearing was scheduled for

      August 3, 2016.


[7]   On July 27, 2016, the Remonstrators submitted a letter to the Commission

      outlining their objections to the project. The Remonstrators are all residents of

      the Lockerbie Glove Factory Town Homes, fifty-eight single family homes

      adjacent to the proposed development by virtue of being situated on the east

      side of East Street. They are not a part of, nor are they represented by, the

      People’s Club. The Remonstrators raised several objections to Jacobs’

      application for certificate of appropriateness, including: 1) that the covenant

      prohibits anything other than residential use on the property; 2) the project

      violates the historic plan in multiple ways; 3) the project will increase noise in


      Court of Appeals of Indiana | Opinion 49A02-1708-CT-1681 | June 8, 2018    Page 6 of 25
      certain areas; 4) the project will adversely affect traffic on East Street; and 5)

      “[s]ome parts of the so-called residential portion of the development seem more

      like short-term leasing, which fits more the description of a hotel . . . .” Id., Vol.

      2 at 44.1


[8]   At the final hearing on August 3, 2016, the People’s Club voiced its “strong

      support” of the project. Id., Vol. 5 at 121. The Remonstrators, represented by

      James Gilday, Treasurer of the Glove Factory HOA, spoke in opposition to the

      application, raising as their “main point” the multiple violations of the historic

      plan. Id. at 122. The Remonstrators asked the Commission to “fulfill its duty

      to enforce the historic plan and disregard all other considerations to the

      contrary by rejecting this proposal.” Id. at 128-29. A Commission staff

      member then addressed the Commission:


               We’ve had probably a dozen meetings on this project over the
               last couple of months. And I think the comment that was made
               earlier about the design evolving for the better, staff would agree
               with that. And in addition to what’s in the staff report, I would
               like to address some of the comments that were just made. . . . I
               would like to reiterate that the Lockerbie Square [historic] plan is
               a set of recommended guidelines for any project. Staff is not



      1
        The Remonstrators repeatedly assert that Jacobs called the building a “hotel” at some point, see Brief of
      Appellants at 12, and assert that he did so at a July 19, 2016, meeting of the People’s Club, see Reply Brief of
      Appellants at 7-8. However, the July 19, 2016, meeting of the People’s Club is not transcribed or otherwise
      memorialized in the record, and the only record evidence the Remonstrators cite in support is their own
      petition for judicial review, App. of Appellants, Vol. 2 at 33, their own letter to the Commission in advance
      of the final hearing on the certificate of appropriateness, id., Vol. 2 at 40, and their own statement to the
      Commission at the final hearing, id. Vol. 5 at 125. The Remonstrators contend that Jacobs’ failure to rebut
      the Remonstrators’ statement is a tacit admission. However, Jacobs and others involved in seeking the
      certificate of appropriateness repeatedly referred to the residential component of the building as “apartments”
      before the Commission.

      Court of Appeals of Indiana | Opinion 49A02-1708-CT-1681 | June 8, 2018                            Page 7 of 25
              aware of anything in the plan being necessarily [a] requirement,
              so that somebody would be in violation of if they didn’t comply
              with that, but rather a set of guidelines to direct staff in making a
              recommendation on the proposed design, which is what we did
              in the staff report.


      Id. at 129-30. Commission staff recommended the application for a certificate

      of appropriateness be approved, and the recommendation was approved by the

      Commission five to one. One of the Commissioners voting to approve the

      certificate of appropriateness was Alex White. At the end of the first

      preliminary review hearing in June, Commissioner White had stated,


              Mr. Jacobs, just one thing, you probably considered this. I was
              on the Athenaeum building committee for many years, and we
              had a devil of a time dealing with acoustics from the successful
              band shell and the interior theater. So I don’t know if you have
              an acquisition[2] on your consultant list yet, but that might be
              advice on how you treat this, especially the façade facing the
              Athenaeum.


      Id. at 91-92.


[9]   The Remonstrators then filed a petition for judicial review in Marion Superior

      Court. While the case was pending, the Remonstrators filed a motion to

      compel, seeking discovery from the Commission on the issue of the possible




      2
       Given the context of the statement, what is transcribed as “acquisition” should probably be “acoustician.”
      During the second review hearing, the Block 20 architect stated they “do have an acoustician coming to town
      next week who’s going to do a full report for us . . . .” Id. at 111-12. And during the final hearing, the
      architect referenced the acoustician’s report. Id. at 140-41.

      Court of Appeals of Indiana | Opinion 49A02-1708-CT-1681 | June 8, 2018                        Page 8 of 25
       bias of Commissioner White in favor of the Athenaeum and Jacobs based on

       his statement from the first preliminary hearing quoted above. The trial court

       denied this motion. After briefing and oral argument on the petition for judicial

       review, the trial court issued its Findings of Fact, Conclusions of Law and

       Judgment denying the Remonstrators’ petition and affirming the Commission’s

       award of a certificate of appropriateness:


               After the multiple hearings, the [Commission], in its expert
               discretion, voted to issue the Certificate of Appropriateness to
               Jacobs. [The Remonstrators’] arguments are generally
               invitations to reweigh the evidence properly considered by the
               [Commission], which this Court declines to do. [The
               Remonstrators] have not carried their heavy burden of proving
               that the [Commission’s] decision in this matter was arbitrary,
               capricious, an abuse of discretion, or otherwise not in accordance
               with law; in excess of statutory jurisdiction, authority, or
               limitations, or short of statutory right; or unsupported by
               substantial evidence.


       Id., Vol. 2 at 23. The Remonstrators now appeal.



                                   Discussion and Decision
                                       I. Standard of Review
[10]   Indiana Code section 36-7-11.1-10(c) provides that the Commission’s final

       determination regarding an application for a certificate of appropriateness “is

       subject to judicial review in the same manner and subject to the same

       limitations as a final decision of a board of zoning appeals under IC 36-7-4.”



       Court of Appeals of Indiana | Opinion 49A02-1708-CT-1681 | June 8, 2018   Page 9 of 25
Indiana Code section 36-7-4-1614(d) provides that a reviewing court, whether

the trial court or this court,


        shall grant relief . . . only if the court 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.


A decision is arbitrary and capricious if it is “patently unreasonable[;] made

without consideration of the facts and in total disregard of the circumstances

and lacks any basis which might lead a reasonable person to the same

conclusion.” City of Indianapolis v. Woods, 703 N.E.2d 1087, 1091 (Ind. Ct. App.

1998), trans. denied. A decision is unsupported by substantial evidence if there is

no “relevant evidence which a reasonable mind might accept as adequate to

support a conclusion.” Id. The party seeking judicial review has the burden of

demonstrating the invalidity of the decision. Ind. Code § 36-7-4-1614(a).



Court of Appeals of Indiana | Opinion 49A02-1708-CT-1681 | June 8, 2018       Page 10 of 25
[11]   When we review an administrative decision, we may not reweigh the evidence

       or reassess the credibility of the witnesses. Metro. Bd. of Zoning Appeals Div. III of

       Marion Cty. v. Traders Point Assoc. of Neighborhoods, 81 N.E.3d 1120, 1124 (Ind.

       Ct. App. 2017), trans. denied. We must accept the facts as found by the board,

       but we review questions of law de novo. Id.3 We presume the determination of

       a board or agency with expertise in a given subject is correct. Flat Rock Wind,

       LLC v. Rush Cty. Area Bd. of Zoning Appeals, 70 N.E.3d 848, 858 (Ind. Ct. App.

       2017), trans. denied.


                                           II. Commission Bias
[12]   The Remonstrators contend the Commission decision is invalid because one of

       the Commission members was “presumptively biased” in favor of the

       application. Br. of Appellants at 53. They base their assertion of bias on a

       single statement Commissioner White made at the first review hearing, wherein




       3
         The Remonstrators note that Indiana Code section 36-7-4-918.4 states that a variance may be approved by
       the board of zoning appeals “only upon a determination in writing” and asserts the Commission should also
       have been required to issue written findings supporting its decision to grant a certificate of appropriateness for
       the Block 20 project. Because Indiana Code chapter 36-7-11.1 is not silent about written findings, but instead
       requires written findings only if the Commission determines that a certificate of appropriateness should not be
       issued, Ind. Code § 36-7-11.1-10(b), we cannot agree with the Remonstrators’ position.
       In addition, the Remonstrators contend that “because of the unique and different role of historic
       preservation,” the standard of review of a Commission decision should be “expand[ed]” beyond that
       described by Indiana Code section 36-7-4-1614 in order to “reconcile[]” other provisions of Indiana Code
       chapter 36-7-11.1. Br. of Appellants at 23. The historic preservation statutes as a whole are to be referenced
       in evaluating whether the Commission decision is appropriate; however, because Indiana Code chapter 36-7-
       11.1 specifically states the standard of review to be used in reviewing the issuing of a certificate of
       appropriateness, we again cannot agree with the Remonstrators that the standard is to be modified or
       expanded in this case. As the Remonstrators themselves acknowledge, when relevant statutory language is
       clear and unambiguous, the statute will be interpreted in its plain, ordinary, and usual sense. See Br. of
       Appellants at 24 (citing Young v. Hood’s Gardens, Inc., 24 N.E.3d 421, 424-25 (Ind. 2015)). Section 36-7-11.1-
       10(c) clearly and unambiguously states the appropriate standard of review for these decisions.

       Court of Appeals of Indiana | Opinion 49A02-1708-CT-1681 | June 8, 2018                             Page 11 of 25
       he noted that he had been on the Athenaeum board for several years and

       suggested that Jacobs consult an acoustician, if he had not already, to consider

       the acoustic effects of the project in relation to the existing Biergarten at the

       Athenaeum.


[13]   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.

       When there is perceived bias by an administrative agency, “the best action is

       before the board itself, in the form of appropriate objections and/or motions for

       disqualifications.” Scheub v. Van Kelker Family Ltd. P’ship, 991 N.E.2d 952, 959

       (Ind. Ct. App. 2013). This procedure gives the board the opportunity to correct

       or prevent an error as a result of bias, and allows the objector the opportunity to

       preserve error in anticipation of judicial review. Id. Having failed to object to

       Commissioner White’s participation or move for his disqualification at or prior

       to the final hearing, the Remonstrators have waived this issue on judicial

       review. See Ind. Code § 36-7-4-1610 (stating judicial review of an issue not

       raised before the board is allowed only in two specific circumstances, neither of

       which is present here).


[14]   Waiver notwithstanding, we briefly note that even if bias exists, we presume

       that an administrative board or panel will act properly and without bias or

       prejudice, Jandura v. Town of Schererville, 937 N.E.2d 814, 819 (Ind. Ct. App.

       2010), trans. denied, with or without recusal of the allegedly biased members,

       Adkins v. City of Tell City, 625 N.E.2d 1298, 1303 (Ind. Ct. App. 1993). We will

       Court of Appeals of Indiana | Opinion 49A02-1708-CT-1681 | June 8, 2018    Page 12 of 25
       not interfere with the administrative process in the absence of a demonstration

       of actual bias. In re Change to Established Water Level of Lake of Woods in Marshall

       Cty., 822 N.E.2d 1032, 1041 (Ind. Ct. App. 2005), trans. denied. Commissioner

       White’s statement that he used to be on the Athenaeum board and suggesting,

       based on his experience, that Jacobs should consult an expert regarding

       potential noise issues with the project, does not demonstrate actual bias in favor

       of the project, and the Remonstrators’ bald assertion that his statement shows

       “presumed bias” does not make it so.


[15]   The Remonstrators claim the trial court should have granted their motion to

       compel to allow them to conduct discovery to supplement the record on the

       issue of Commissioner White’s actual bias. However, although Indiana Code

       section 36-7-4-1612 allows supplementation of the record under certain

       circumstances, it is only allowed “if the additional evidence could not, by due

       diligence, have been discovered and raised in the board proceeding giving rise

       to a proceeding for judicial review.” Ind. Code § 36-7-4-1612(a). As noted

       above, Commissioner White’s statement was made in a public hearing with the

       Remonstrators’ representative in attendance. The issue could have been raised

       with the Commission at any time prior to the final vote, but it was not.

       Therefore, the trial court did not err in denying the Remonstrators’ motion to

       compel.




       Court of Appeals of Indiana | Opinion 49A02-1708-CT-1681 | June 8, 2018   Page 13 of 25
                            III. Certificate of Appropriateness
[16]   The Remonstrators argue the Commission improperly granted the certificate of

       appropriateness for the Block 20 project for several reasons: multiple provisions

       of the Historic Preservation Statutes and Lockerbie Square Historic Plan are

       violated by the project; zoning rules are violated by the commercial components

       of the project; and the project is prohibited by the restrictive covenant.


                                      A. Historic Preservation
[17]   The Remonstrators contend the Commission decision to issue a certificate of

       appropriateness to the Block 20 project “violates numerous Historic

       Preservation Statutes, including the Commission’s failure to duly consider the

       Historic Plan, which are objective historic development standards . . . .” Br. of

       Appellants at 24.


[18]   Indiana Code section 36-7-11.1-8(c) provides that “all governmental

       agencies”—including the Commission—“shall be guided by and give due

       consideration to the [historic] plan in any official acts affecting the area.” The

       consideration that is due from the Commission is described in Indiana Code

       section 36-7-11.1-9. When the Commission hears an application for a

       certificate of appropriateness, the Commission is to determine whether the

       proposal will “be appropriate to the preservation of the area and to the

       furtherance and development of historic preservation” by considering,


               in addition to any other pertinent factors, the visual
               compatibility, general design, arrangement, color, texture, and

       Court of Appeals of Indiana | Opinion 49A02-1708-CT-1681 | June 8, 2018      Page 14 of 25
                materials in relation to the architectural or other design standards
                prescribed by the plan or any applicable zoning regulation, the
                design and character of the historic area, and the architectural
                factors of other structures in it.


       Ind. Code § 36-7-11.1-9(c), (d).4 If the Commission determines the proposed

       construction will be appropriate, the Commission shall issue a certificate of

       appropriateness. Ind. Code § 36-7-11.1-10(a).


[19]   The Remonstrators contend the Commission’s decision to allow a mixed-use

       development does not further historic preservation in the Lockerbie Historic

       District, which they posit “contemplates residential development consistent

       with the complexion of the predominant single-family home ownership within

       the [Historic] District.” Br. of Appellants at 27. The historic plan notes that the

       recommended zoning and land use maps included in the plan “were developed

       to act in concert to protect the unique character of Lockerbie Square.” App. of

       Appellants, Vol. 12 at 47. The historic plan does contemplate that the

       “predominant land use” in the Historic Core remain residential, but the plan

       contemplates a variety of acceptable uses in the Secondary Area. App. of

       Appellants, Vol. 12 at 47-48 (“It is recommended that much of the [Secondary




       4
         The Remonstrators also cite to Indiana Code section 36-7-11-17 as “reinforc[ing] Chapter 11.1-9(d) in
       providing more restrictions . . . .” Br. of Appellants at 26. Section 36-7-11-17 applies to new buildings and
       structures “within the primary area of the historic district.” The Block 20 project is not within the primary
       area, or “Historic Core” of the historic district, but rather in the Secondary Area. See Ind. Code § 36-7-11-
       6(a) (requiring the Commission to submit a map to the legislative body describing the boundaries of a historic
       district or districts and allowing the map to divide a district into primary and secondary areas); App. of
       Appellants, Vol. 6 at 9 (Lockerbie Square Historic District Map 2 showing boundaries of the Historic Core
       and the Secondary Area as of 1987).

       Court of Appeals of Indiana | Opinion 49A02-1708-CT-1681 | June 8, 2018                         Page 15 of 25
       Area north, east, and south of the Historic Core] be developed with a mix of

       residential and compatible commercial uses.”). The fact that the proposed

       project includes both residential and commercial uses does not undermine

       historic preservation in this area. The historic preservation statutes and the

       historic plan do not exist to prevent change, but to encourage and appropriately

       guide revitalization. See id., Vol. 6 at 13-14 (“Since the majority of historic

       properties within the . . . Historic Core have been rehabilitated, the emphasis

       has shifted to new development of existing vacant land in both the Historic

       Core and the Secondary Area.”).


[20]   The Remonstrators also contend that the project is incompatible with the

       historic plan, which states,


               Because most of the Lockerbie Square Historic Core has been
               completed, the preservation and revitalization of Lockerbie
               Square’s periphery should be encouraged. This redevelopment
               should seek to preserve and respect the existing historic fabric
               and strengthen the contextual relationship between the Historic
               Core and Secondary Area. Construction not in keeping with the
               visual scale or character of the district should be discouraged
               ....


               [A]ll restoration, rehabilitation, and new construction projects
               must conform to the design guidelines set forth in this plan (see
               Design Standards Section).


       App. of Appellants, Vol. 12 at 39 (emphasis added). The Remonstrators allege

       the historic plan thus contains mandatory provisions supplementing the general



       Court of Appeals of Indiana | Opinion 49A02-1708-CT-1681 | June 8, 2018     Page 16 of 25
       historic preservation statutes. However, the plan makes clear that the design

       standards contained therein are not mandatory:


               The design standards are to be used as a guide by property
               owners and others interested in developing a project within the
               Lockerbie Square Area. . . . The contents of this chapter are
               guidelines and should not be read as absolute rules. Every project will
               have its own different set of goals, constraints, problems and
               impacts, all of which may suggest somewhat differing utilization
               of the standards.


       Id., Vol. 12 at 51. Thus, there can be no error in granting a certificate of

       appropriateness to a project that deviates from any of those guidelines,

       presuming the process of granting the certificate was otherwise observed. See

       App. of Appellants, Vol. 5 at 122 (Remonstrators’ representative arguing to the

       Commission at the final hearing that “[t]here are multiple violations of the

       [historic plan] with this proposal”); 129-30 (Commission staff member noting

       that nothing in the historic plan is “necessarily [a] requirement, so that

       somebody would be in violation of if they didn’t comply with that, but rather a

       set of guidelines to direct staff in making a recommendation on the proposed

       design, which is what we did”); 132 (Commission member noting the historic

       plan contains guidelines, not rules, and the “only kinds of violations that I

       know of is doing work without going through the approval process”).


[21]   With respect to the Commission’s decision-making process, the trial court

       concluded:




       Court of Appeals of Indiana | Opinion 49A02-1708-CT-1681 | June 8, 2018       Page 17 of 25
               The record demonstrates that, over the course of three (3) months
               and prior to issuing the Certificate of Appropriateness to Block
               20, the [Commission] and its staff considered, among other
               things: (a) the factors included in Indiana Code § 36-7-11.1-9(d);
               (b) the size and scope of the project; (c) the acoustic effect of the
               project; (d) the effect of the project on traffic and congestion in
               the area; (e) the effect of the project on nearby alleyways; (f)
               letters from the public (including [the Remonstrators’] counsel);
               (g) the [Commission] staff reports; (h) testimony from Jacobs and
               his architects; (i) testimony from members of the public
               (including [the Remonstrators’] counsel); (j) statements from the
               [Commission] staff; and (k) statements from the [Commission’s]
               members.


       App. of Appellants, Vol. 2 at 22.


[22]   The record supports the trial court’s conclusion. 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, the Commission

       itself held two public preliminary review hearings and a final public hearing,

       Jacobs made numerous changes to the project plans in response to concerns

       raised at each stage of the proceedings, and the Commission heard community

       members’ concerns, both for and against the project. Commission staff believed

       the “design evolv[ed] for the better” during the process, id., Vol. 5 at 129, and

       that the “scale of this structure is actually a perfect size for the scale in

       relationship to the immediate buildings around it,” id., Vol. 5 at 131.

       Ultimately, the Commission voted five to one to issue the certificate of

       appropriateness per the staff recommendation. One commissioner specifically

       noted, “I think it’s very responsive architecturally.” Id., Vol. 5 at 134.

       Court of Appeals of Indiana | Opinion 49A02-1708-CT-1681 | June 8, 2018         Page 18 of 25
[23]   With respect to new construction, the historic plan notes:


               The purpose of these guidelines is to present concepts,
               alternatives, and approaches which will produce design solutions
               that recognize the characteristics and bring harmony between
               new and existing building in Lockerbie Square. . . . It should be
               noted that within an appropriate framework there can be many
               different design solutions which may be appropriate. While
               guidelines can create an acceptable framework they cannot insure
               any particular result and consequently people may hold a wide
               range of opinions about the resultant designs . . . .


               New construction should reflect the design trends and concepts
               of the period in which it is created. New structures should be in
               harmony with the old and at the same time be distinguishable
               from the old so the evolution of Lockerbie Square can be
               interpreted properly.


               ***


               Every site will possess a unique context. This will be comprised
               of the buildings immediately adjacent, the nearby area (often the
               surrounding block), a unique subarea within the district, and the
               district as a whole.


       Id., Vol. 13 at 27-28. Clearly, this is an instance where people hold a wide

       variety of opinions. That the Remonstrators’ opinion about this project

       diverges from the Commission’s does not make the Commission’s decision

       unreasonable, however.


[24]   Considering the applicable historic preservation statutes and the historic plan

       guidelines, and the process by which the Commission made its decision, we

       Court of Appeals of Indiana | Opinion 49A02-1708-CT-1681 | June 8, 2018     Page 19 of 25
       cannot say the Commission acted arbitrarily and capriciously or without regard

       for the law, abused its discretion, or issued a decision unsupported by the

       evidence. See Ind. Code § 36-7-4-1614(d). The Commission gave due

       consideration to the pertinent statutory factors and the guidelines in the historic

       plan when commenting on and requesting changes to the project plans and

       when ultimately determining the proposal is an appropriate addition to the

       area.


                                             B. Zoning Laws
[25]   The Remonstrators also claim the Commission’s decision violates applicable

       zoning laws; specifically, they claim the property is supposed to be exclusively

       residential pursuant to the Comprehensive Plan for Indianapolis and Marion

       County. The trial court did not speak to this objection in its order, because the

       Remonstrators did not raise this as an issue before the Commission in their

       remonstrance letter or before the trial court in their petition for judicial review.

       It is therefore waived. See Ind. Code § 36-7-4-1610.


[26]   Notwithstanding the Remonstrators’ failure to raise this issue below, there does

       not appear to be a conflict with the zoning laws. The parcel is currently zoned

       CBD-2, which “accommodates a diverse mixture of uses including residential,

       retail, restaurants, entertainment, major public facilities, major convention

       facilities, sports venues, hotels and memorials.” City of Indianapolis-Marion

       County Consolidated Zoning/Subdivision Ordinance, Sec. 742-106.C.1. The

       historic plan also recommends the subject real estate be zoned CBD-2. App. of

       Appellants, Vol. 12 at 45, 50 (with the exception of a quarter block not relevant
       Court of Appeals of Indiana | Opinion 49A02-1708-CT-1681 | June 8, 2018    Page 20 of 25
       here, “[t]he Secondary Area to the west of the HP-1 district is zoned CBD-2,

       which permits commercial support uses for CBD-1”). And to the extent the

       historic and comprehensive plans recommend residential use for the parcel,

       “[r]ecommendations in a comprehensive plan serve to guide subsequent

       decisionmakers rather than establish present and binding land-use controls.”

       Fifty Six LLC v. Metro. Dev. Comm’n of Marion Cty., 38 N.E.3d 726, 734 (Ind. Ct.

       App. 2015), trans. denied. The Remonstrators have not carried their burden to

       show the Commission acted in excess of statutory authority or otherwise not in

       accordance with law when it appears the project falls within the approved

       zoning for the subject real estate.


                                        C. Restrictive Covenant5
[27]   As a condition of the Commission granting a certificate of appropriateness

       allowing the Athenaeum to demolish the existing structure on the subject real

       estate, the Athenaeum agreed to the following Restrictive Covenant:


                       1. An issuance of [certificate of appropriateness] . . . shall
                allow the use of the Subject Real Estate as a parking lot for a
                period of three (3) years from the date of the issuance (“3 Year
                Period”).


                       2. The Subject Real Estate shall not be used as a parking
                lot beyond the expiration of the 3 Year Period, unless the



       5
         The Remonstrators contest the trial court’s finding that they did not have standing to raise this issue because
       the Restrictive Covenant can only be enforced by the Commission and the People’s Club. See App. of
       Appellants, Vol. 2 at 23. Because of our resolution of this issue, we need not decide whether the
       Remonstrators have standing.

       Court of Appeals of Indiana | Opinion 49A02-1708-CT-1681 | June 8, 2018                            Page 21 of 25
        Athenaeum shall have applied for and shall have been granted
        another certificate of appropriateness before the expiration of the
        3 Year Period.


               3. During the 3 Year Period the Athenaeum shall use
        reasonable and good faith efforts to support alternative parking
        solutions for the area within two (3) blocks of [where] the Subject
        Real Estate is located.


               4. In the event that reasonable alternative parking is
        established within two (2) blocks of the Subject Real Estate
        before the expiration of the 3 Year Period, then the Athenaeum
        shall diligently pursue using the Subject Real Estate for
        residential purposes pursuant to the Plan. The aforesaid diligent
        pursuit may include, but not be limited to, listing the Subject
        Real Estate for sale or long-term lease for residential
        development, contacting developers about residentially
        developing the Subject Real Estate or seeking proposals for
        residential development.


                5. The provisions set forth in paragraph 2 of this covenant
        . . . run with and burden the Subject Real Estate.


              6. The obligations contained in this covenant including,
        but not limited to, those in paragraphs 3 and 4, shall be binding
        upon the Athenaeum’s successors and assigns.


App. of Appellants, Vol. 4 at 13-14. The Remonstrators allege the Commission

decision should be reversed because the Block 20 project violates this

Restrictive Covenant. Specifically, the Remonstrators contend the Restrictive

Covenant allowed use of the property for parking of any kind for only three

years and thereafter allows only single-family residential use of the property.


Court of Appeals of Indiana | Opinion 49A02-1708-CT-1681 | June 8, 2018     Page 22 of 25
[28]   A restrictive covenant is an agreement between a grantor and a grantee in

       which the grantee agrees to refrain from using property in a particular manner.

       Johnson v. Dawson, 856 N.E.2d 769, 772 (Ind. Ct. App. 2006). One purpose of

       restrictive covenants is to maintain or enhance the value of land by controlling

       the nature and use of lands subject to a covenant’s provisions. Id. Because

       restrictive covenants are a form of express contract, we apply the same rules of

       construction applicable to contracts. Id. Construction of the terms of a written

       contract is a question of law for the court and we review the trial court’s

       conclusions de novo. Id. Restrictive covenants are strictly construed and all

       doubts are resolved against restrictions and in favor of the free use of property.

       Id. at 773. With respect to the Restrictive Covenant at issue, the trial court

       concluded:


               [The Remonstrators’] contention that Block 20 does not comply
               with the Restrictive Covenant is . . . unavailing, and there was
               substantial evidence on the record that Block 20 did not violate
               the Restrictive Covenant. The Restrictive Covenant addresses
               only the use of an existing surface parking lot on the property; it
               does not prohibit the use or construction of a parking garage
               included as part of a larger retail and residential project. Nor
               does the Restrictive Covenant require exclusive residential use on
               the property as suggested by [the Remonstrators]. As Block 20
               will include sixty-seven (67) residential units in addition to the
               parking garage, it satisfies any requirement (to the extent such a
               requirement exists and runs with the land) to have a residential
               use on the property. It is instructive to this Court that the three
               parties responsible for drafting and issuing the Restrictive
               Covenant—the [Commission], the Lockerbie Square Peoples
               Club, and the Athenaeum—all support the project and do not
               view it as a violation of the Restrictive Covenant.

       Court of Appeals of Indiana | Opinion 49A02-1708-CT-1681 | June 8, 2018   Page 23 of 25
       App. of Appellants, Vol. 2 at 22-23.


[29]   For several reasons, we cannot agree with the Remonstrators’ proposed

       construction of the Restrictive Covenant. First, the current use of the parcel is

       definitively in violation of the Restrictive Covenant, as the covenant restricted

       its use as a parking lot to the 3 Year Period which expired in 2004. Although

       the Restrictive Covenant states its terms run with the land and are binding on

       the Athenaeum’s successors, it is somewhat unclear what the effect of the

       Restrictive Covenant is at this point. Nevertheless, the Restrictive Covenant

       does not foreclose use of the property for any parking purpose in perpetuity;

       rather, it restricted use of the property solely as a parking lot beyond the 3 Year

       Period. Although the Block 20 project incorporates parking—as it is adding

       residents to the area who will be in need of parking—it is not “a parking lot,”

       which is the restricted use.6 Moreover, the Restrictive Covenant does not

       mandate that the property be used for solely residential purposes after the 3

       Year Period. In fact, the Restrictive Covenant only references pursuing

       residential use “[i]n the event that reasonable alternative parking is established

       within two (2) blocks of the Subject Real Estate before the expiration of the 3

       Year Period.” Appellant’s App., Vol. 4 at 13 (emphasis added). As no

       acceptable alternative parking was established pursuant to the Restrictive




       6
         The applicable zoning ordinance contains separate definitions of “parking lot” (“A hard-surfaced area . . .
       intended for the temporary placement of vehicles . . . .”) and “parking garage” (“A structure or part of a
       structure used primarily for the housing, parking, or temporary short-term placement of motor vehicles
       . . . .”). Ord. Sec. 740-202.P.

       Court of Appeals of Indiana | Opinion 49A02-1708-CT-1681 | June 8, 2018                          Page 24 of 25
       Covenant within the 3 Year Period, the obligation to pursue residential options

       was never triggered.


[30]   It seems clear that the purpose of the Restrictive Covenant was to allow the

       Athenaeum to demolish a building that did not enhance the preservation or

       character of the historic district and put the property to temporary use while it

       worked to revitalize the property in a manner that would be a benefit to the

       district. The Commission’s decision to grant the certificate of appropriateness

       to a mixed use project that includes a parking component did not violate the

       terms of the Restrictive Covenant.



                                               Conclusion
[31]   The Remonstrators have failed to show the Commission’s decision to grant a

       certificate of appropriateness for the Block 20 project is invalid. The judgment

       of the trial court is therefore affirmed.


[32]   Affirmed.




       Crone, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Opinion 49A02-1708-CT-1681 | June 8, 2018   Page 25 of 25
