Monday, September 21, 2009

Marion County Judge Allows Pan Am Suit To Proceed Under Public Standing Doctrine

City attorneys have failed in their efforts to block a lawsuit filed by fellow blogger and attorney Paul Ogden on behalf of several citizens against the City and the Indiana Sports Corporation for violating the terms of a restrictive covenant governing the use and disposal of the public area downtown known as the Pan Am Plaza. At issue is whether the Indiana Sports Corporation should have been required to repay millions of dollars to the City of Indianapolis when the City authorized the sale of the Pan Am Plaza to a politically-connected real estate developer at the close of Mayor Bart Peterson's administration in 2007. An original restrictive covenant governing the use of this land for public use required repayment of taxpayer funds used to redevelop the site--as much as $6 million--in the event the ISC stopped using the property for a public use.

Marion Superior Court Judge Heather Welch ruled in an Order signed on September 21, 2009 that the citizen plaintiffs have standing under public standing doctrine because they "are attempting to enforce a public not a private right in this case when trying to prohibit the MDC and the City of Indianapolis from reducing the restrictive covenant area which was created when the area now known as Pan Am Plaza was transferred to ISC." Judge Welch continued, "The restrictive covenant was created to allow a public gathering at Pan Am Plaza for the enjoyment of citizens of the City of Indianapolis." "Thus, there is no doubt that the Plaintiffs qualify under the public standing doctrine by attempting to enforce a public right by claiming that the government action was improper and not in accordance with the statute."

Judge Welch ruled against the City's motion on the pleadings arguing that the disposal of Pan Am Plaza came about as a result of a project agreement and not a redevelopment plan. In the case of the former, no approval by the city council is required, whereas the latter requires council approval. "It is clearly confusing as to whether these documents were redevelopment plans or project agreements," she writes." Judge Welch also rejected the City's argument that no triggering event had occurred--until the restrictive covenant is completely dissolved. Judge Welch ruled that there exists "a dispute of material fact" whether a "substantial reduction of the restrictive convent is the triggering event" as the plaintiffs contend. Finally, Judge Welch rejected the City's specious argument that the suit should be dismissed because the plaintiffs' counsel failed to give notice to the City under the tort claims act. "The restrictive covenant that is at issue in this case is an express contract between the City of Indianapolis by MDC and ISC", Judge Welch ruled, noting that the plaintiffs complaint alleged no tort claims.

Judge Welch sided with the City's attorneys only on one point. That pertained to a statute that requires the MDC to determine compliance of a redevelopment plan with the comprehensive plan of development. Judge Welch determined that it would not matter whether the 2007 action involved a redevelopment plan or a project agreement because the statute in question did not require city council approval in either event. Accordingly, she granted the City's motion to dismiss the plaintiffs' claim based on this statute.

5 comments:

iPOPA said...

A great judge makes a well-reasoned decision. Not surprise here. You know what else isn't surprising? You don't mention that she's a....gasp.....DEMOCRAT!

Advance Indiana said...

This isn't a partisan debate. I assume your reference is regarding the Voter ID dispute. Your memory must not be very good. The Dems at each step along the way of the litigation that worked its way through the federal courts complained about rulings by Republican judges. First, it was just a partisan opinion by Judge Shields. Then it was a partisan ruling by Republican judges on the 7th Circuit. And finally, it was a 6-3 decision by the U.S. Supreme Court with all those voting to uphold it being Republican judges. So when a Court of Appeals of all Democratic judges rules the opposite way that all of those Republican judges ruled, why would it surprise you that people might be tempted to point out that the judges' partisan affiliation. It's okay for the Dems to raise the party affiliation of Republican judges but not vice versa, I guess.

Guess What I Heard said...

DIRTY Politics in Public Safety!!!

IFD recently merged with the Perry Township Fire Department in what was lauded as a great accomplishment for the city of Indianapolis. What you don’t know is that there was a secret deal brokered with former Public Safety Director Scott Newman, outgoing Chief of Staff Paul Okeson, and current Perry Township Trustee, Gary Coons. Here are the details:
1. Gary Coons informed Paul Okeson and Scott Newman that if they promised him a job in the current administration that he would guarantee them that the merger for PFD would go through no matter what. The promised job was that he would be the Director or the Deputy Director of Emergency Management since there were two vacant positions. All parties agreed that was acceptable.
2. Jim White was given the position as Director of EMA and stated he did not need a Deputy Director and has said to multiple sources that he does not want Gary Coons even if he did get a Deputy Director.
3. Gary Coons was upset and felt betrayed and he confronted Newman and Okeson about the deal they had made. Newman and Okeson informed Coons to apply for the now vacant position of Director of Public Safety saying he would have an influential position in the administration as the Director. Coons applied for the position along with several hundred other applicants.
4. Recently PFD merged with IFD and Mayor Ballard held a town-hall meeting at the PFD Station on September 5, 2009 to discuss the benefits of the merger. Gary Coons who was present at the meeting was rumored to have had a conversation with acting Director of Public Safety Mark Renner about a new job. Several individuals overheard Renner and Coons talking about his new position and his start date. No one knew what position they were talking about.
5. On the week of September 7th Gary Coons started a new position with the Department of Public Safety as the Department of Public Safety’s Liaison. His salary is over a staggering $70,000 per year all while he is STILL the trustee of Perry Township!
a. The job was NEVER posted on the city’s website.
b. His role is very vague and he is not connected will enough to be a liaison for the city according to associates of Coons.
c. He is still earning a salary of $40,000 as the trustee in addition to his new salary and has said he does not intend to resign.
6. Renner is attempting to become the Director of Public Safety and has been informed by Okeson and Newman that they would push for him to become the new Director on the condition that he promotes Coons as his Deputy Director.
What happened to the Mayor’s promise of being “transparent” and NOT playing the usual political games that others played?
P.S.- Current Director of Re-Entry Khadejha Muhammad is being replace by Marion County Republican Party Chairman, Tom John’s girlfriend’s –best friend, Rhiannon Williams. Rhiannon Williams is the current director of Pace-OAR and has been said by many to publicly express her dissatisfaction with Khadejha Muhammad and that she would do a better job in that position. Muhammad was recently applauded for her outstanding work by Tony Dungy on national news. The sad part is that all of this was orchestrated by none other than…Paul Okeson and Scott Newman. I guess we all know who runs the administration and will be picking the new Public Safety Director for the Mayor….oh wait they already did pick him and the Mayor just doesn’t know that it’s none other than…Mark Renner.

Paul K. Ogden said...

Gary,

Great analysis. On that statutory point we had conceded - it was amended in 2008 to directly require council approval and the the act was done in 2007. But we had a couple other theories by which council approval would have been required nonetheless. The judge ruled in our favor on those theories - or I should say there exists a question of fact whether they applied to require council approval

I haven't had a chance to study the opinion in detail, but I have been very, very impressed by Judge Welch demeanor on the court and her writing.

Advance Indiana said...

I meant Barker and not Shields as the district court judge who decided the Voter ID suit in federal court.