« Law - "Justice Dept. to Review Bush Policy on DNA Test Waivers" | Main | Law - "Top Judge Calls Calif. Government ‘Dysfunctional’ " »
Sunday, October 11, 2009
Ind. Decisions - More on: "Restaurants don’t have standing to challenge parking in Jeffersonville"
Updating this ILB entry from August 7th, David A. Mann of the Jeffersonville News & Tribune reports in a story headed "Court won’t re-hear parking suit: Reconsideration requested following Supreme Court decision":
The Indiana Court of Appeals this week denied a request to re-hear a case, filed by Buckhead Mountain Grill and Rocky’s Italian Grill, against the city of Jeffersonville.The case, ongoing since 2008, relates to parking on Riverside Drive on what’s known as Restaurant Row.
In August, the court had ruled that Buckhead and Rocky’s did not have standing to make a legal challenge because they could not demonstrate monetary damages.
The next level of appeal would be the Indiana Supreme Court.
The dispute started in 2006, MHI Hospitality, a hotel management company, purchased what had been a Ramada Inn along Riverside Drive — right across the street from Buckhead and Rocky’s.
The hotel is now the Sheraton Riverside, following a remodeling and rebranding.
In 2007, prior to the hotel’s opening, the Jeffersonville Board of Zoning Appeals granted MHI a parking waiver, allowing the company to open a Bearno’s Pizza in what had been the Ramada Inn’s old conference room.
Subsequently Buckhead and Rocky’s filed a lawsuit against the city and MHI, alleging that the parking waiver would adversely affect the value of their property.
The trial court heard the case in October 2008 and affirmed the city’s variance.
The decision the appeals court issued in August was based on the issue of standing. The court said “there is no evidence that Buckhead and Rocky’s would suffer any monetary loss by the granting of the developmental standards variance.”
The petition that the plaintiffs made to rehear the case was based on a recent Indiana Supreme Court case that also addressed the issue of standing.
The plaintiffs’ argument was that in order to argue the issue of standing, a motion to dismiss needed to be filed, said attorney Larry Wilder, who represented the city. When the issue was brought up in the Riverside Drive case, it was done during oral arguments, not a motion to dismiss.
Attorney Greg Fifer, who represented Buckhead and Rocky’s, could not be reached for comment last week.
“They determined that they would not hear the case,” Wilder said.
“Quite frankly [Fifer] raises a very interesting point of law. I don’t think that their position is frivolous by no means.”
Wilder said he doesn’t believe it would be unreasonable for the plaintiffs to request a transfer to the Indiana Supreme Court because of the question.
However, it’s unclear as to whether such a transfer would be requested by the plaintiffs.
Posted by Marcia Oddi on October 11, 2009 11:40 AM
Posted to Ind. App.Ct. Decisions