Developer requesting $1M over Broad Ripple project delays

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The developer of a $30 million apartment-and-retail project in Broad Ripple wants the development’s most vocal opponents to pay nearly $1 million in damages related to construction delays.

Browning Investments Inc. is asking that Good Earth Natural Foods and resident Patrick Skowronek pay the money for appealing the Metropolitan Development Commission’s decision to award Browning zoning variances to proceed with the project.

They lost the appeal in Marion Superior Court in March on a technicality, but are asking the Indiana Court of Appeals to overturn Superior Court Judge Michael D. Keele’s decision to dismiss the appeal.

On Wednesday, representatives of Browning Investments and opponents of the project appeared again before Keele, who admitted that Browning’s request for damages is “unique and different.”

But David Herzog of Faegre Baker Daniels LLP, representing Browning Investments, said the Broad Ripple project has been “stopped dead in its tracks” pending the appeal. Because there’s a chance the variances could be overturned, banks are unwilling to lend for the project and the city of Indianapolis is refusing to issue a bond, Herzog argued.

“We’re out roughly a million bucks,” Herzog said. “Is that fair? No it’s not.”

The $1 million Browning Investments wants Good Earth and Skowronek to pay is an estimate of how much project costs could rise due to delays in construction, which might not start for another year depending upon how long the appeal process takes.

Browning Investments is seeking $5.7 million of a $7.7 million city bond used to help finance the project along the Central Canal. The bonds would be paid off over time from property-tax proceeds in the North Midtown tax-increment financing district. The district, created in January 2013, includes the Browning project, which would be called Canal Pointe.

The developer maintains that Canal Pointe will generate more than $7 million in property taxes that would be used to pay down the bonds.

Browning Investments anticipates that the $2 million difference between the bond issue and the amount required for the project could help fund public improvements in the TIF district, which includes Tarkington Park and runs as far south as 30th Street and Central Avenue.

Browning Investments received approval in October to rezone 1.9 acres northeast of College Avenue and the Central Canal to allow for a single 35,000-square-foot retail space—earmarked for a Whole Foods store—plus 119 apartments and a four-story parking garage.

But signing Whole Foods as a tenant is far from a done deal. On Wednesday, Scott Hirschman, president of subsidiary Browning Construction Inc., said on the witness stand that the developer now is negotiating with two additional grocery stores because of the uncertainty surrounding the start of construction.

Following court proceedings, Jamie Browning, a partner in the firm, confirmed that Browning Investments has “generated other interest in the project” but declined to elaborate.

The MDC awarded Browning Investments the variances to construct a building higher than local zoning ordinances allow, and with less parking than typically required.

Good Earth, a locally owned health food store in Broad Ripple, is about a block east of the development site.

President Rudy Nehrling and Skowronek, who lives in a nearby apartment complex that would be demolished to make way for the development, both told the judge Wednesday that they don’t have the money to pay the damages Browning Investments is requesting.

“I think they’re trying to stop our due process by making us pay almost $1 million,” Nehrling said.

Judge Keele took the request under advisement and will issue a ruling at a later date.



  • Browning Not a Republican
    Vinny said: "What is outrageously hilarious is that I would bet that the Browning executives are all Republicans that wail and moan endlessly about the poor getting welfare while they steal millions from taxpayers to make themselves even richer." Actually Browning is a big Democrat. But when it comes to politicians being in bed with developers, the pay to play system in Indianapolis is bipartisan. This is nothing more than a SLAPP proceeding that instead of a separate lawsuit is contained within a motion. Browning should be ashamed of himself. As far as the comment that this project should get started so the revenue start coming toward the city, this project is costing taxpayer millions that is going to benefit a private company, not the taxpayers.
  • Real classy
    Take the tax payers money... Then sue the tax payer...Real nice!
  • Wake up Broad Ripple!
    Less people want to go to Broad Ripple and more want to go to downtown. Why? The thugs, clubs, drunks and smell of vomit that permeates the area. Why put up with that when you've got a hip growing downtown with nice housing going up everywhere? This kind of small minded protest will keep developers away and open the flood gates to more bottom feeders, both retail and clientele. Anyone over 30 want to go there after dark? Robberies, beatings, threats and intimidation of females are a nightly occurrence. Wake up Good Earth, BR needs residents and retailers that are not bars!
  • Good wins out!
    Browning's Slapp Motion was.... DENIED!!!!! Appeals Court ...Here the come...
  • Wondering
    Since the developer is receiving a nearly $6 million gift from the taxpayers of Marion County, would it not seem reasonable that ANY taxpayer could file a lawsuit?
  • Public relations
    Something to remember, there are paid public relations people hired by the developers, making some of these comments. Thats their job. The developers can't have so many comments against them, so they have to try and shape public opinion.
  • lawsuit
    Doesn't anyone have the right to file a suit?
  • Re: Standing to file?
    I know you aren't a lawyer, but you are a journalist. Have you ever asked that question? Seems like the answer is key to understanding to what extent people are allowed to derail approved projects.
  • Wondering
    I'm not a lawyer, so I don't have a good answer for you. Their suit was filed Nov. 15 and cause number is 49D11-1311-PL-041701.
    • Standing to file?
      Scott, since neither Nehrling nor Skorownek is an affected property owner, how did either of them have standing to file the suit in the first place? Skorownek is a tenant in the apartments. Nehrling is an employee of Good Earth, not the owner.
    • C'mon Rick
      So in essence what you're advocating is a system of justice that is only available to those that can afford it
    • You Just Have To Wonder
      It is so easy to get a law student, perhaps a first year attorney to file appeals and more appeals and appeal, appeals and all the while the tax payer picks up most of this tab in that Good Earth is out nothing if they lose and have only delayed at a cost a viable & approved project. Tort reform, yes. Each party needs to be required to purchase a bond that covers the others cost if their suit is proved to be without merit. What is wrong with that? You just have to wonder if Mr good, I would not shop there on principal, earth would be filing all of these appeals if he actually had to pay for them......I am on the side of uh NO. Enough already, let the shovels did and the revenue begin for the city!
      • Poor planning
        They should try to collect from whoever convinced them to invest in a project that needed variances before it could proceed. Chickens counted before hatching are risky investments.
      • Ever wonder how the rich get richer?
        Simply look at this deal by Browning. What is outrageously hilarious is that I would bet that the Browning executives are all Republicans that wail and moan endlessly about the poor getting welfare while they steal millions from taxpayers to make themselves even richer.
      • i wonder
        i recall $1 million dollars (or so) is supposed to fund development at tarkington Park. i wonder if that funding is now in jeopardy or if this money they are seeking will be the money to fund that tarkington park project?
      • lawsuit question
        There is no separate lawsuit filed. Browning's request is an extension of the case filed in November by Good Earth and Skowronek against the MDC, as an intervenor.
        • Sabotage
          Tired of Good Earth and other persons delaying the project, which is great for Broad Ripple and everyone in the area - except these disgruntled few.
        • Let's be objective
          Perhaps all of you bashing Browning should take a step back and consider the bigger picture here. The cost increases and damages referenced are legitimate and real, but regardless of whether you choose to accept that reality, consider the root cause of this. Comments suggesting that Browning is trying to take advantage of the legal system are misguided. Consider who is really taking advantage of the system - Good Earth. Since the beginning they have opposed this project and sought to take any action they could to prevent anything that could create competition for their store. Last time I checked, discrimination against a party that would create competition is illegal. On top of that, consider that despite Good Earth's efforts, the City's elected officials chose to support this project and approve it. Since Good Earth wants solely to prevent competition, they appealed the approval. How about a vocal minority holding up the process. Where it gets really good is that Good Earth lost the appeal because they failed to file paperwork, which is a very clear requirement in the law. In order to continue to create delays for their own benefit, Good Earth filed an appeal of the judge's decision to throw out the appeal based on them now filing the paperwork. I'm not sure what basis there would be for that considering they failed to uphold their obligations. Talk about abusing the legal system.
          • Question for Scott O.
            Scott: Has Browning actually filed a lawsuit against these two parties?
          • Wow
            Just wow.
          • Really ?
            This is an outrageous act of bullying by Browning and their lawyers. I will not purchase anything from any entity associated with Browning, or any thing associated with this development. I will however, do my best to purchase from Good Earth, which has been an outstanding and responsible locally owned business.
          • Outrageous abuse of legal process
            Judge Keele's comment that Browning’s request for damages is “unique and different” understates the matter. This is a classic SLAAP suit ("strategic lawsuit against public participation"), designed to discourage citizens from opposing ANYTHING a developer opposes. Just because the remonstrators lost in the trial court does not mean they will lose at the Court of Appeals. Nor does it mean that their remonstration was baseless. Delays are a cost of business for developers. Here, if the development goes forward, Browning's share of the costs will still be minimal since the City taxpayers are picking up a huge portion of Browning's tab. Don't punish citizens concerned enough about their neighborhood to enter a fight against Goliath.
          • ru kidding
            you want the taxpayer $$$'s to fund the project and now you sue the same taxpayers because they challenged your development plan???? .....how deep does your anger and greed go.....Memo to the City of Indy...deny all funding for this company
          • Morons? Not so fast
            Construction costs due to delay are very real, it just depends on how they are calculated as to whether or not they are fair or inflated. The simplest factor would be wages, most construction trades get yearly raises, so the delay of a year would mean that those raises would be costs caused by the delay. It is also not hard to see that material costs could rise sharply, especially if there is a commodity involved like copper or steel.
          • Its simple
            In my mind, its pretty simple. If the project makes sense, Browning should pay out of pocket for the whole project. Having the taxpayers subsidize their for profit project is somewhat distasteful to me, especially in an area that is not exactly an urban blight. That specific area? Yeah, it should be torn down and re-done, but let the developers pay for it themselves.
          • What
            Remonstration is a core component of community involvement. This sort of a suit seems calculated to scare others from trying to have a say in their community more than it is geared toward this particular group of protesters. Developers do this sort of thing as a part of their business, remonstrators must interrupt their business and personal lives to remonstrate. This project is a wholesome (no pun intended) endeavor and is over differing opinions, but the precedence this suit may set could have far reaching unintended consequences when it comes to projects that are not so wholesome
          • Amen
            Good for Browning Investments. The owner of Good Earth lost and continues to whine. This is exactly what tort reform is about. Make the loser pay if they are unsuccessful.
          • Morons
            Is Browning out of their minds? These people are clowns. Construction delays? Nothing is fair to these people unless the taxpayers are picking up the tab.

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