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.