The IBJ recently reported on the most recent turn of events in the ongoing dispute over Browning Investment’s planned Broad Ripple development. According to the IBJ,
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.
This is a perfect example of a SLAPP–a strategic lawsuit against public participation.
The purpose of a SLAPP isn’t to win, or even to litigate a legitimate dispute. It is a strategy sometimes used by large corporations or developers in order to intimidate people who have the chutzpah to oppose them, a bullying tactic to silence critics by threatening them with the very substantial costs of defending against a lawsuit that the big guys can easily afford, but citizen-protestors cannot. The goal is to squeeze the people criticizing the development until they are exhausted, or out of money, or both, and abandon their opposition.
As a bonus, SLAPP suits also “send a message” that intimidates other people who might be tempted to join the opposition.
The zoning appeals process is there for a reason, and people are entitled to use it. Costs attributable to a delay while a dispute is mediated or litigated should be–and are– an anticipated cost of doing business.
Suing people who have pissed you off by daring to disagree with your business plan is–excuse the language–a dick tactic.
Then, by definition, isn’t the original ‘appeal’, assuming as Browning alleges it was brought without a legal basis, not actively prosecuted, and intended to impose a cost on the project that would prevent or delay its completion, just another form of SLAPP?
Well said Mrs. Kennedy!
Sounds like the Mafia to me.
“sjudge” has a fascinating comment above. It displays a widely held mentality that borders on an illness within our body politic.
On one hand, we have a wealthy corporation asking the state for special permission to do something that would not ordinarily be allowed.
On the other, we have a private citizen availing himself of his rights to participate as a member of his community.
This, to sjudge, is the same thing.
To sjudge, forcing a private citizen to post one million dollars to exercise his civic duty to ensure that the state consider all aspects of this special permission is the same as a citizen speaking to his representatives.
Aside from the false equivalency, this corporatist attitude is frightening.
More and more of our fellow citizens believe such things as “money equals free speech” and, apparently, that money can cancel free speech.
Due process be damned if it results in added costs of doing business.
We can only hope that sjudge does not actually sit on the bench.
Thanks for your reply to sjudge, Yanqui Mike. You got it just right.
Years ago, our neighbors remonstrated against a large corporation who wanted a new zoning for property immediately adjacent to the neighborhood so they could relocate their business. Their argument was that they would not be able to grow (and add jobs) without the zoning change. Sound familiar? The outcome of years of delayed hearings (at the corporation’s request), meetings and the expenses of water studies and attorneys, the corporation got its request approved after it moved the the full city council. Within DAYS of the decision, the corporation announced that it had sold the property to a mall developer and was building at a new location on 96th St. IMHO, the corporation should have had to repay the neighbors for costs in that they lied about their intentions from the very beginning. The neighborhood has been dealing with the fallout, including trash, noise (dumpsters being emptied at 4:00am), traffic, light pollution crime and depreciated property values since then. The corporation has gone on to reap huge profits and has expanded into other markets, likely doing the same thing to other neighborhoods. If I am cynical about developers and their complicit city employees, I think I have good reason.
I *was* very excited about this development and have publicly supported it. I like the density and love how it improves the canal front. This SLAPP is indeed shameful and an affront to all citizens who have a right to participate in our legal process. Screw Browning if this is how they plan to treat Broad Ripple residents, including me.
I have no interest in Broad Ripple or this particular SLAPP; I don’t understand the battle to prevent growth in that area other than the already overburdened streets and crime rate.
I am curious if there is such a legal action for crime victims as File a Lawsuit Against Anti-Prosecuting Prosecutors, FLAAPP. The trial date regarding the attacks on four elderly women in April (I was mugged and robbed on my driveway at 11:00 in the morning); is set for July 21st. The man who attacked, robbed and injured me along with his woman driver used my VISA 3 times that day and my Wal Mart 5 times that day at two different Wal Mart locations. The deputy prosecutor who contacted me is not sure they can file fraud charges against these two – a total of 8 fraud and 8 forgery charges, no explanation given as to why NOT. I asked about charges regarding my injuries; still waiting for an answer to that question. The other women could possibly be dealing with these same frustrations as there are 4 Robbery charges filed (one for each victim) but only 1 Fraud charge for their use of the credit card stolen from their last victim. If criminals can commit crimes and not be charged with them, how do victims receive justice? We don’t have big business or expensive attorneys protecting us; of course our taxes are paying the deputy prosecutors and the probable public defender assigned to the accused.
Take the tax payers money…then sue the tax payer??? Classy, Browning…
Think of what the country invested in WWII and the Civil War to preserve freedom. Is the threat today any less? All that’s changed is who is the threat. Let’s end this madness peacefully at the polls. Now’s the time.
Wait until everyone understands the thus far hidden motives of this shell game, what else these corporatist and their affiliated quasi governmental non profits (sjudge included) have been doing to insure failure, how these few power brokers and their minions are controlling the zoning and sources, breaching non-disclosure contracts, dual tracking (lieing) to create the illusion of community driven Harmoni, and MidTown Loves Local; all so these few can set up their corporate partners to steal hundreds of millions of dollars of properties, force down, control the market and so they get paid, paid, and paid again, and can amass repetitive unregulated, unjust gains!
I believe the layers of misrepresentations equal Fraud!!! And there needs to be an investigation into the broken contracts and connections between these few people, the controllers! It is only a matter of time until these peoples sequenced fraudulent actions are exposed!
Mostly I’m trying to talk about the process and its parameters. Arguing that “X” avenue shouldn’t even be asked for when you don’t much like a particular side, only works if you’re willing to argue the same way when it’s not available to a side you love. A party pearly should be able to appeal an administrative decision (the MDC is an administrative body). But, there are rules, and for the most part, one of those rules is that the appeals are primarily about the application of the law, not (except in really egregious cases) the facts. The folks appealing, assuming they meet the criteria for folks to be able to appeal, is that they make and present a case which could (doesn’t have to) win. The other side has every right to argue that the appeal is simply without a legal basis, particularly as it moves up the ladder of appeals. And, appeal bonds, while not the norm, and not normally granted, do, exist – and particularly in construction cases. Browning has the right to ask, not the right to win the argument – that gets decided by the evil judge. Arguing that they shouldn’t have that right (to ask) because they might have more than one motive, leaves open the argument that maybe the appellants here shouldn’t be allowed to appeal in the first place because they “might'” have some other motive, like trying to get rid of competition. Mostly the processes play out fairly, and they always, in our system, play out publicly. You can always argue a result was wrong, but take a breath before you start chopping away at the process.
Nice try, sjudge …but it won’t dig you out of your “same thing” analogy.
You weren’t “mostly trying to talk about the process and its parameters” then.
You said, “by definition, isn’t the original ‘appeal’, assuming as Browning alleges it was brought without a legal basis, not actively prosecuted, and intended to impose a cost on the project that would prevent or delay its completion, just another form of SLAPP?”
You were not only wrong, you were trying to mislead.
Own it.
Mike
Mr. sjudge, it´s not about processes or any of that jargon you invented. It´s about civil rights and moreover, civic duty.
Own it.
Alicia
I gladly own that part about having to start by “assuming” the allegations are true – doesn’t mean you end there. Probably also ought to note that I didn’t invent law…
I understand that people have strong feelings about this issue, but please remember my “rule” for commenting: civility, not accusations or name-calling.
Let’s also be fair and recognize that people who oppose developments can also abuse the process, which I think was sJudge’s original point.
Jim, When the process is sold to the public to implement one thing, 49th and College, The UpTown, so we can spark private reinvestment south MidTown to DownTown, the “Insight Vision Plan” along the historic mixed use nodes, and instead is used to repetitively abuse many local companies and people; Instead used so these few corporatists and their affiliated quasi government non profits can control zoning, the public and private sources, interfere with other local businesses, in so many ways not yet exposed to the public, steal, and force down many other properties; When the financial impact studies with non disclosure agreements designed to stop these abusive processes are breached, and years of work, properties, and money are stolen; Again all so these few (The newly appointed MidTown Leadership Level Sponsors) with their legal teams, who also took over the decision making process with their nfp sub-committees and disproportionate political influence, then take everything for credit swaps; Then yes Jim, part of the process now needs to questioning the abusive process.
Now their needs to be an evaluation of who makes the rules, who is enforcing the rules, and who is benifiting from controlling and creating the abusive process. (In this case, as in most of these kinds of “forced control” causing “fraudulent financial ponzi schemes”, it is the same people or their affiliates in each of these positions)
Now, because of these few peoples unregulated abusive actions, which continue to become more and more exposed, there does need to be a complete investigation into the sequenced misrepresentations, breach of non disclosure agreements, and these apparent frauds.
JIM, In my opinion you are correct about one thing, the spin of these hidden acts, the entire “shell game” are the cause of compounding trebled damages and are by design to stop the primary imperative sustainable solutions, so these guys can take more and more.
These few are not happy to have a majority share of a healthy diverse community, they want all, the control of the market…
…Alicia so you know, SJudge, Jim did assist to appoint the corporatist take over of our community, the control of the process and sources, as he and affiliates dual tracked, now continues to spin the facts, and hide the history and compounding regional private and public damages!
We should keep in mind that corporations are designed for one purpose, to make money. They pay workers as little as possible, charge customers as much as possible, then distribute the difference amongst executives and shareholders. The good that they do by providing jobs and products is collateral to the financial process.
None of this is necessarily bad, but we should not expect good either, beyond the financial process.
Many are fooled by expecting good to result from corporations and entertainment and religion and numerous other institutions when in fact that’s not what they are designed to do.
Good comes from people. People who manage the government, through democracy, which keeps institutions contributing to our well being when they are able, and out of our hair when they are not.
I’ve been reading things extensively regarding Whole Foods and its tactics. This is the Walmart of organic. This is a despicable corporation. Anyone who could possibly be okay with this project hasn’t bothered to learn anything regarding this company. No I’m not commenting on the legalities of what is occurring now. I still can’t get rid of the nausea from this corporation trying to come into Broadripple or the fact that some people say they are for it without having a clue.
If a party to litigation raises an issue or claim she, he, they or it know or should know to be frivolous, under Indiana law, I.C. 34-52-1-1 and under Trial Rule 11, a court can award damages, including attorney fees, for the aggrieved party. When a party raises a claim or defense that follows proper procedures and raises arguments based in law, then the outcome, generally, is left to the finder of fact—be it the trial court judge or a jury, depending upon the action, how it proceeds, and whether jury was requested. Simply because a party has lost and seeks to appeal an adverse decision does not give rise to an award of attorney fees, other sanctions or damages. Our system is distinct from the British system where, for example, the loser usually pays such costs and damages. Under our system, a SLAPP lawsuit violates basic notions of due process. Denial of such fees and sanctions in this case, from what I have read of the filings and arguments advanced and the procedures followed, was appropriate. Browning Investments might be disappointed that its attempt to grab TIF funds—originally conceived in California as a means of funding development in impacted urban areas, and abused there to such an extent TIFs now are banned by California law—does not mean that company is entitled to damages or sanctions. As others have noted in previous posts on this excellent blog by Ms. Kennedy—and I would encourage her to share her thoughts on this topic on “Civil Discourse Now”—there are costs to doing business. One of the questions to be asked is, are those costs unfairly imposed? When a corporation seeks public funds of a type originally intended for impacted areas, and is frustrated in that pursuit, the corporation should lick its wounds and walk away. If people have a problem with crime and other problems in Broad Ripple—where I live and where my law office is located—the answer is not to throw money at well-connected developers to build unnecessary parking garages or large chain organic food stores. The answer is to take tax money that has been foolishly spent on professional sports teams and hire more police. As to TIFs? We should follow California’s lead and ban them. Chicago is another place where this mechanism of public finance has been used as little more than a slush fund for mayors and well-connected friends.
Jamie Browning is a duplicitous corporate whore just like his daddy and he’s proven every step of the way in this matter what a huge asshole he is…they are corrupt Republicon scum who pay to play while sucking off the govt teat
Lots of misinformation here, Sheila. It’s no wonder the responses are so uncivil. According to the IBJ and the court, Good Earth failed to timely file all the paperwork for its appeal of the MDC’s decision in March, and its attorneys did not ask the court for an extension, so the appeal was dismissed. (That is what is being called a “technicality” but it is more than that; it’s the law.) Good Earth is now trying to appeal that dismissal, which was brought about by their own failure to appropriately file. Browning’s motion (not lawsuit) now points to the continuing attempt to appeal that dismissal, and not to Good Earth’s original appeal of the MDC’s decision, which was fully expected by everyone concerned. This is in no way a SLAPP — it’s not a lawsuit at all.
Wait, EFK – that really is a totally different kettle of fish. Do you have links to sources on any of this?
EFK…Get your facts straight…I have posted Both Motions by both parties on OUR link Say NO to TIF funds for Broad Ripple…Facebook Page…Read for yourself…Look at line 3 ..Page 2…Remember that…
Contact Good Earth and let them know that you are on their team….This is the time that the BRVA come out with a clear message, this is shameful…Where the hell is our Mayor..?
Donna Sink, see http://www.ibj.com/city-to-consider-77m-bond-issue-to-assist-broad-ripple-project/PARAMS/article/46726. “Broad Ripple retailer Good Earth Natural Foods had asked Marion County Judge Michael D. Keele in November to overturn the zoning variances awarded to Browning Investments the previous month by the city’s Metropolitan Development Commission. . . .
“On Monday [March 17], Keele granted MDC’s motion to dismiss Good Earth’s complaint, largely on a technicality. After filing the complaint, Good Earth’s lawyers failed to submit within 30 days to the court a record of the zoning board’s decision. The lawyers also didn’t ask for an extension.
“’There’s no question on this. It’s the petitioner’s duty [to file the record],’ Keele said upon dismissing the complaint.
“Good Earth, located about a block east of the development site, has 10 days to file an appeal with the Indiana Court of Appeals.” [In other words, 10 days from March 17 to file an appeal of Keele’s decision to dismiss their original complaint because they did not file correctly. —EFK]
It’s important to note that the appellants have fully exercised their right to participate in the process and to object to the development at each step along the way. They hired attorneys, rallied their supporters, attended public hearings, advocated for their position, and had every opportunity to express their concerns. However, they did not prevail in the court of law or in the court of public opinion. The City-County Council voted 22-7 on June 2 in favor of the project, which is widely supported by area residents and businesses. Any further appeals look like an obvious attempt to delay the start of construction on an approved project in order to cause Browning financial harm.
To a real Broad Ripple resident [Skowronek, one of the appellants]: You did not win your case. You are crowing now about the ruling that Browning can’t get $1 million from you for obstructing an approved project. No one expected that motion to stick, but it is valuable for having allowed more public discussion of the real facts of your actions. Don’t be sore losers. Move on.
Thanks for that link, EFK.
It’s also important to consider that when Good Earth and Skowronek filed their appeal of Judge Keele’s dismissal of their first appeal, their attorneys “instructed the court reporter to wait the full 90 days allowed by the rules before filing the transcript in the Court of Appeals” (quoted from Browning’s motion). That means the transcript required to proceed was not filed until just recently, at their request. Does that sound like they are eager to get the results of their appeal, or that they are eager to interfere with Browning’s ability to begin an approved project? I still think the term SLAPP was incorrectly used for this thread, but since it persists, we should think carefully about which of the parties are actually gaming the system.
But Skowronek denies that they requested that 90 day delay and claims it’s a fabrication by Browning.
Here’s the latest from the Indiana Court of Appeals. What do you think, Donna? Is this one an intentional delay, or are appellants’ attorneys having trouble understanding the filing rules?
07-11-2014 ****RECEIVED 07/14/14: APPELLANT’S BRIEF (9) * ALL PAGES WITHIN
THE BRIEF MUST BE ON WHITE PAPER – LAST PAGE OF ORDER BEING
APPEALED IS ON BLUE PAPER * ENTERED ON 07/15/14 CL