The opinion
FILED
Feb 02 2024, 8:45 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEES
Thomas F. Bedsole John P. Higgins
Maggie L. Smith Michael J. Blinn
Todd D. Small Indianapolis, Indiana
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Willow Haven on 106th Street, February 2, 2024
LLC, Court of Appeals Case No.
Appellant-Defendant, 22A-PL-2931
Appeal from the Hamilton
v. Superior Court
The Honorable Matthew C.
Hari Nagireddy and Saranya Kincaid, Special Judge
Nagireddy, Trial Court Cause No.
Appellees-Plaintiffs. 29D02-2207-PL-5323
Opinion by Chief Judge Altice
Judge Foley concurs.
Judge Weissmann dissents with separate opinion.
Altice, Chief Judge.
Court of Appeals of Indiana | Opinion 22A-PL-2931 | February 2, 2024 Page 1 of 24
Case Summary 1
[1] Hari and Saranya Nagireddy filed a Complaint for Injunctive Relief seeking a
declaratory judgment and preliminary and permanent injunctions against
Willow Haven on 106th Street, LLC (Willow Haven) to stop Willow Haven
from building a residential structure (the Home) to house up to ten elderly
persons suffering from Alzheimer’s disease or other forms of dementia. The
Home, already partially constructed, is located in the City of Carmel (the City)
in an area zoned for single-family housing, on a lot next to where the
Nagireddys reside. Willow Haven moved to dismiss the Nagireddys’ complaint
for failure to exhaust administrative remedies, which motion the trial court
denied. Following a hearing, the trial court granted the Nagireddys’ request for
a preliminary injunction against Willow Haven, thereby enjoining Willow
Haven from completing construction of the Home. In this interlocutory appeal,
Willow Haven presents several issues for review, which we consolidate and
restate as:
1. Were the Nagireddys required to exhaust administrative
remedies before pursuing judicial review?
2. Did the trial court err in granting a preliminary injunction in
favor of the Nagireddys?
1
We held oral argument in Indianapolis on December 14, 2023. We commend counsel for both parties on
the quality of their written and oral advocacy.
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[2] We affirm.
Foundational Legal Principles
[3] “America’s growing elderly population has created a tremendous demand for
elderly housing and related social services.” WILLIAM H. GROGAN, The
Tension Between Local Zoning and the Development of Elderly Housing, 33 SUFFOLK
U. L. REV. 317, 317 (2000). This is especially true for an estimated twenty to
forty percent of elderly who suffer from dementia and Alzheimer’s. LISA
BRODOFF, Planning for Alzheimer’s Disease, 17 ELDER L.J. 239, 240 (2010).
These individuals particularly benefit from living in neighborhood-based,
single-family group homes rather than nursing homes or assisted living
facilities. Such group homes provide a small, family-like setting that is not only
desirable, but also medically beneficial to persons suffering from dementia or
Alzheimer’s. To that end, there are federal and state laws that protect these
individuals in the realm of housing services.
[4] First, there is the Americans with Disabilities Act (ADA), which was enacted
“to provide a clear and comprehensive national mandate for the elimination of
discrimination against individuals with disabilities.” 42 U.S.C. § 12101(b)(1).
In the statute itself, Congress noted that “historically, society has tended to
isolate and segregate individuals with disabilities” and that such discrimination
continues to be “a serious and pervasive social problem” in areas such as
housing. 42 U.S.C. § 12101(a)(2), (3). A “primary obstacle” to residential
group home living is the “not in my backyard” reactions of neighbors who
Court of Appeals of Indiana | Opinion 22A-PL-2931 | February 2, 2024 Page 3 of 24
oppose group homes. See Appellant’s Brief at 16 (citing DISABILITIES AND THE
LAW § 7:13; GRAHAM, There Goes the Neighborhood: The Evolution of “Family” in
Local Zoning Ordinances, 9 TOURO L. REV. 699, 722 (1993)).
[5] With the Fair Housing Act (FHA), and as amended in 1988 by the Fair
Housing Amendments Act (FHAA), Congress declared its intent to encourage
and protect the rights of persons with disabilities to choose to live in
neighborhoods that best serve their disabilities. See 42 U.S.C. § 3601, et seq.
Congress enacted the FHA to prohibit housing discrimination against
individuals based on race, color, sex, religion, or national origin. 42 U.S.C. §
3601, et seq. In 1988, the FHA was amended to expand the right to fair housing
to handicapped 2 persons with mental or physical disabilities. The FHAA also
defined discrimination as including the “refusal to make reasonable
accommodations in rules, policies, practices, or services, when such
accommodations may be necessary to afford such person equal opportunity to
use and enjoy a dwelling.” 42 U.S.C. § 3604(f)(1) and (3)(B) (emphasis
supplied).
[6] At the State level, Indiana has faithfully implemented the mandates of the
federal statutes for the benefit of the disabled and mentally ill in the realm of
housing. The General Assembly declared “void as against the public policy of
the state,” restrictions or conditions that purport to exclude the use of property
2
“Handicap” is defined as “a physical or mental impairment that substantially limits one or more of such
person’s major life activities.” 42 U.S.C. § 3602(h).
Court of Appeals of Indiana | Opinion 22A-PL-2931 | February 2, 2024 Page 4 of 24
“as a residential facility for individuals with a developmental disability or
individuals with a mental illness” because the facility is a business, is occupied
by individuals who are not related, or “for any other reason.” Ind. Code § 12-
28-4-10(b). The General Assembly also declared that “[a] zoning ordinance . . .
may not exclude a residential facility for individuals with a mental illness from
a residential area solely because the residential facility is a business or because
the individuals residing in the residential facility are not related.” I.C. § 12-28-
4-7(a). Indiana has also enacted laws particularly for the benefit of elderly
suffering from Alzheimer’s or other forms of dementia. See I.C. 12-10 and I.C.
12-10-5.5. Specifically, Indiana provides different ways to care for elderly with
Alzheimer’s and dementia disabilities—licensed group homes called
“residential facilities for individuals with mental illness” under I.C. § 12-28-4,
and, more recently, as discussed below, “housing with services establishments”
that are dedicated specifically to providing care to those with Alzheimer’s and
dementia under Ind. Code § 12-10-5.5. The City incorporated federal and state
law mandates into its Unified Development Ordinance (UDO), which is the
City’s comprehensive zoning ordinance.
Facts & Procedural History
[7] In December 2020, Willow Haven applied for a permit to build the Home at
2080 West 106th Street, 3 which parcel is located in a district zoned S1, Single
3
This lot is located near the 15th hole of the Crooked Stick Golf Course.
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Family Residential, under the UDO.4 Willow Haven describes the Home as a
residential group home for elderly individuals suffering from Alzheimer’s or
other forms of dementia. 5 The Home is to house up to ten residents with each
resident having their own private bedroom and bath and all residents sharing
the kitchen, dining, and living space. The Home is to function as a single
housekeeping unit and emulate a family setting, with all meals prepared,
served, and consumed by the residents together as a family unit and with the
residents spending time together, engaging in activities and entertainment. The
residents are to have twenty-four-hour assistance that will be provided by two
dementia-certified caregivers and an operations manager.
[8] Under Willow Haven’s plans, the Home will not provide any medical care or
have medical professionals on staff, will not require other licensed caregivers to
be on hand, and will have a higher staff-to-resident ratio than a nursing home.
Willow Haven holds no licenses from any state or federal agencies and
expressly states that it has no intention of obtaining any licenses. On August
16, 2021, the City approved Willow Haven’s residential building permit
request, and Willow Haven began construction of the Home.
4
Ind. Code § 36-7-4-1109(c) provides that “[i]f a person files a complete application” for a permit, then the
application is “governed for at least three (3) years after the person applies for the permit by the statutes,
ordinances, rules, development standards, and regulations in effect and applicable to the property when the
application is filed.” Thus, the version of the UDO effective at that time applies. The parties do not dispute
this.
5
In its marketing materials Willow Haven refers to the Home as a “premier boutique memory care home.”
Appellant’s Appendix Vol. 2 at 234.
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[9] The Nagireddys’ home is located directly adjacent to the lot on which the
Home is being built. On May 23, 2022, the Nagireddys contacted the City and
requested information pertaining to issuance of the building permit to Willow
Haven. The City provided the requested information the same day. On June
21, 2022, the Nagireddys, by counsel, wrote to the City and expressed their
belief that construction of the Home with its intended use as an “unlicensed
assisted living facility” violated the UDO. Appellant’s Appendix Vol. 2 at 76. The
Nagireddys did not claim that the physical structure of the home violated the
UDO; 6 rather, the Nagireddys claimed that the intended use required Willow
Haven to obtain a variance from the Carmel Board of Zoning Appeals (BZA),
which it did not do. They demanded that the City issue an order to stop
construction of the Home.
[10] The City refused to issue a stop-work order, explaining to the Nagireddys that
Mike Hollibaugh, the Director of the Department of Community Services (the
Director), had previously made a determination for a separate, but nearly
identical proposed construction project 7 that elderly individuals with
Alzheimer’s or dementia are a protected class and “therefore eligible to reside in
a Group Home without first obtaining a variance.” Id. at 80. The City found
the Director’s determination to be consistent with the UDO’s definition of
6
There is no dispute that the physical structure of the Home complies with the UDO.
7
The other proposed construction project for which the Director had made a determination as to compliance
with the UDO was for a group home for ten frail elderly individuals with Alzheimer’s or dementia.
Court of Appeals of Indiana | Opinion 22A-PL-2931 | February 2, 2024 Page 7 of 24
single-family dwelling, I.C. Chap. 12-28-4, the FHA, the ADA, and 7th Circuit
case law.
[11] Consistent with the Director’s previous determination, the City, through its
attorney, informed the Nagireddys that the UDO’s definitions for group home
and family “could not preclude Willow Haven from constructing a home for
frail elderly individuals with dementia and/or Alzheimer’s” as such preclusion
“may have violated both state and federal law.” Id. The City stood by the
Director’s determination that no variance was required prior to issuing a
building permit to Willow Haven.
[12] On July 19, 2022, the Nagireddys filed with the trial court a complaint for
declaratory and injunctive relief against Willow Haven, the City, and several
entities associated with the City. The Nagireddys maintain that only licensed
group homes are permitted under the UDO and thus, because the Home is not
licensed, it violates the UDO. All defendants moved to dismiss the Nagireddys’
complaint for failure to exhaust administrative remedies. The Nagireddys then
voluntarily dismissed the City and all other defendants associated with the City
but continued to pursue the action against Willow Haven. Following a hearing,
the trial court denied Willow Haven’s motion to dismiss.
[13] A preliminary injunction hearing was held November 1, 2022. By agreement,
both parties tendered pre-hearing briefs and documentary evidence in support of
their respective positions. There were no witnesses or live testimony at the
November 1 hearing; only legal arguments were presented to the court.
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Thereafter, both parties tendered findings of fact and conclusions of law. On
November 9, 2022, the trial court signed the Nagireddys’ proposed findings and
conclusions, adopting them verbatim, 8 and thereby enjoined Willow Haven
from proceeding with construction of the Home. In so doing, the trial court
preliminarily resolved in the Nagireddys’ favor disputes concerning (1) whether
the Nagireddys were required to exhaust administrative remedies prior to
pursuing judicial review, and (2) whether the Home qualified as a “group
home” and could therefore be considered a single-family home under the
applicable zoning ordinance. Willow Haven filed the instant interlocutory
appeal.
Discussion & Decision
1. Exhaustion of Administrative Remedies
[14] Generally, if an administrative remedy is available, it must be pursued before
the claimant is allowed access to the courts. T.W. Thom Const., Inc. v. City of
Jeffersonville, 721 N.E.2d 319, 322 (Ind. Ct. App. 1999). The failure to exhaust
administrative remedies deprives the trial court of subject matter jurisdiction.
Subject matter jurisdiction cannot be waived. Id. Willow Haven argues that
the Nagireddys were not entitled to a preliminary injunction because they failed
8
We have stated before that “the practice of accepting verbatim a party’s proposed findings weakens our
confidence as an appellate court that the findings are the result of considered judgment by the trial court.”
Moeder v. Salin Bank & Trust Co., 27 N.E.3d 1089, 1098 (Ind. Ct. App. 2015). Nevertheless, we also recognize
that “it is not uncommon or per se improper for a trial court to enter findings that are verbatim reproductions
of submissions by the prevailing party.” Id.
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to timely pursue administrative means to challenge the issuance of the building
permit.
[15] The exclusive means for judicial review of zoning decisions “made by a board
of zoning appeals, legislative body, plan commission, preservation commission,
or zoning administrator” is set out in I.C. § 36-7-4-1600, -1601. One of the
requirements that must be met prior to initiating judicial review of a zoning
decision is that the individual(s) seeking judicial review have exhausted all
administrative remedies “within the board whose zoning decision is being
challenged.” I.C. § 36-7-4-1604(a). If the person fails to object to a zoning
decision or timely petition for review of a zoning decision, the person waives
their right to judicial review. I.C. § 36-7-4-1604(b). Willow Haven maintains
that the Nagireddys failed to timely file a petition for review 9 with the BZA and
thus, they waived judicial review of the City’s issuance of the building permit to
Willow Haven for the Home.
[16] The Nagireddys assert that they had no notice of the issuance of the permit and
thus no opportunity to appeal to the BZA within statutory time constraints or
constraints set out in the UDO. Under such circumstances, they argue that they
were not required to exhaust administrative remedies and can properly pursue
9
“A petition for review is timely only if the petition for review is filed not later than thirty (30) days after the
date of the zoning decision that is the subject of the petition for judicial review.” I.C. § 36-7-4-1605. This
thirty-day period does not, as Willow Haven suggests, run from the day the Nagireddys learned that the
building permit had been issued. The statute clearly states that a petition for review must be filed within
thirty days of the zoning decision being reviewed.
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injunctive relief with the court. In support of their argument, they direct us to
Bixler v. LaGrange County Bldg. Dept., 730 N.E.2d 818, 820 (Ind. Ct. App. 2000).
[17] In Bixler, the LaGrange County Building Department granted an improvement
location permit to landowners to place a manufactured home on their lot. The
Bixlers, owners of an adjoining lot, filed a complaint with the trial court to
obtain a temporary restraining order and a permanent injunction preventing the
placement of the manufactured home arguing that it could only be located in a
mobile home park under applicable zoning classifications. The trial court
dismissed the Bixlers’ complaint finding that they had failed to exhaust their
administrative remedies.
[18] On appeal, the Bixler court stated “with regard to the issuance of building
permits, the exhaustion prerequisite historically has been restricted only to
permit applicants, who are directly affected by a public official’s decision to issue,
condition or deny building permits.” 730 N.E.2d at 820 (emphasis added).
The Bixler court noted that this rule was established long ago in Fidelity Trust Co.
v. Downing, 68 N.E.2d 789 (Ind. 1946), wherein the Fidelity court rejected an
argument that the party seeking to enjoin erection of a building on grounds that
its construction violated local zoning provisions had to first exhaust
administrative remedies. As the Fidelity Court explained, because the objecting
parties were not parties to the building permit and thus, not directly affected,
they could not be required to exhaust administrative remedies. The Court’s
rationale was that “[t]o hold otherwise would be to hold that every property
owner in any particular district would be compelled to take notice of every
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action” of an administrative official or board charged with enforcement of the
ordinance. 68 N.E.2d at 791; see also Laws v. Lee, 471 N.E.2d 1229, 1234 (Ind.
Ct. App. 1984) (following Fidelity and holding that neighboring property owners
were not responsible for monitoring the issuance of improvement location
permits for which they had not applied and thus, they were not required to
exhaust administrative remedies prior to challenging the issuance of such with
the courts). The Bixler court followed the precedent set in Fidelity (and Laws)
and held that because the law did not hold the Bixlers responsible for
monitoring the issuance of building permits for which they did not apply, they
were not required to exhaust administrative remedies prior to seeking injunctive
relief from the trial court. 10
[19] The Nagireddys are in the same position as the Bixlers (and the complainants in
Fidelity and Laws). They are adjoining landowners who are not responsible for
monitoring the issuance of building permits for which they have not applied.
Here, they had no notice of the issuance of the building permit until after it was
too late to appeal such issuance to the BZA. Under these circumstances, the
Nagireddys were not required to exhaust administrative remedies with the BZA
before pursuing declaratory and injunctive relief with the trial court.
10
The Bixler court did note that if a person has knowledge of the issuance of a permit, they may initiate an
appeal to the zoning board, but are not required to do so. 730 N.E.2d at 821 (citing Stout v. Mercer, 312
N.E.2d 515, 519 (Ind. Ct. App. 1974)) (emphasis supplied).
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2. Preliminary Injunction
[20] An injunction is an extraordinary remedy that should be granted only with
caution. Rennaker v. Gleason, 913 N.E.2d 723, 733 (Ind. Ct. App. 2009). “The
grant or denial of a preliminary injunction rests within the sound discretion of
the trial court, and our review is limited to whether there was a clear abuse of
that discretion.” Duke Energy of Ind., LLC v. City of Franklin, 69 N.E.3d 471, 481-
82 (Ind. Ct. App. 2016). When granting a preliminary injunction, a trial court
is required to enter special findings and conclusions thereon. Ind. Trial Rules
52, 65(D). When considering whether a trial court’s grant of a preliminary
injunction constitutes an abuse of discretion, this court determines whether the
evidence supports the trial court’s special findings of fact and whether the
findings support the judgment. Hannum Wagle & Cline Eng’g, Inc. v. Am.
Consulting, Inc., 64 N.E.3d 863, 874 (Ind. Ct. App. 2016). An abuse of
discretion can occur under various circumstances, including when the trial
court misinterprets the law. See Myers v. Myers, 560 N.E.2d 39, 42 (Ind. 1990).
We will reverse the trial court’s judgment only when it is clearly erroneous, and
a judgment is clearly erroneous when a review of the record leaves us with a
firm conviction that a mistake has been made. Hannum, 64 N.E.3d at 874.
[21] To obtain a preliminary injunction, the moving party has the burden of showing
by a preponderance of the evidence that: (1) the movant’s remedies at law are
inadequate, thus causing irreparable harm pending resolution of the substantive
action; (2) the movant has at least a reasonable likelihood of success at trial by
establishing a prima facie case; (3) threatened injury to the movant outweighs
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the potential harm to the nonmoving party resulting from the granting of an
injunction; and (4) the public interest would not be disserved by the granting of
the injunction. Apple Glen Crossing, LLC v. Trademark Retail, Inc., 784 N.E.2d
484, 487 (Ind. 2003). “Failure to prove any one of these requires denying the
injunction.” Leone v. Commissioner, Ind. Bureau of Motor Vehicles, 933 N.E.2d
1244, 1248 (Ind. 2010).
[22] Willow Haven’s primary challenge to the trial court’s issuance of the
preliminary injunction is the court’s determination that the Nagireddys
established that they have a reasonable likelihood of success at trial. As we
explain below, we agree with the trial court’s assessment of the Nagireddys’
claim.
[23] Under the UDO, an S1 zoning district is classified as a residential environment
that permits single-family dwellings. Exhibits Vol. 1 at 41. The UDO defines a
“single-family dwelling” as including “a Group Home for the mentally ill”
pursuant to I.C. § 12-28-4-7 and “a Group Home for not more than ten (10)
developmentally disabled individuals which is established under a program
authorized by IC 12-11-1.1-1(e)(1) or IC 12-11-1. l-1(e)(2).” Exhibits Vol. 2 at 126
(italics in original). In turn, a “group home” is defined by the UDO as:
1. A residential structure (licensed under IC 12-17.4) in which
care is provided on a twenty-four (24) hour basis for not more
than ten (10) children; or
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2. A facility (licensed under IC 12-28-4) that provides residential
services for developmentally disabled individuals in a program
described in IC 12-11-1.1-1(e)(1) or IC 12-11-1.1-1(e)(2); or
3. A facility (licensed under IC 12-28-4) that provides residential
services for mentally ill individuals in a program described in IC
12-22-2-3.
Id. at 130 (italics in original; bolding supplied). “Family” is defined in the
UDO as “one or more persons living as a single housekeeping unit.” Id. at 127.
[24] Clearly, the Home does not fall within the UDO’s black-letter definition of
group home as it is not a licensed facility of any kind. Seemingly
acknowledging such, Willow Haven maintains that the Home is a statutorily
authorized housing with services establishment that, although not licensed,
qualifies as a group home under the UDO. Effective July 1, 2021, 11 the
legislature created the housing with services establishment within the statutory
scheme specifically directed at individuals in need of Alzheimer’s and dementia
special care. To qualify as a housing with services establishment, the home
must:
1. provide “sleeping accommodations to at least five (5)
residents;” and
11
This is after Willow Haven applied for its building permit but before the City issued the permit for
construction of the Home.
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2. offer or provide
a. “at least one (1) regularly scheduled health related
service” defined as “home health services . . ., attendant
and personal care services, professional nursing services,
and the central storage and distribution of medications”;
or
b. “at least two (2) regularly scheduled supportive
services,” defined as “help with personal laundry, handling
or assisting with personal funds of the residents, or
arranging for medical services, health related services, or
social services”
“whether offered or provided directly by the establishment or by
another person arranged for by the establishment.”
I.C. § 12-10-5.5-2.5; I.C. § 12-10-15-3(a), -2, -6. There is no registration or
licensing requirement for a housing with services establishment. 12 Willow
Haven maintains that a housing with services establishment is merely an
unlicensed group home and that the City properly followed the Director’s
determination that the Home qualified as a group home under the UDO.
[25] The Nagireddys argue that because the Home does not fit within the UDO’s
definition of group home, Willow Haven was required to obtain a variance.
Under the UDO, a variance is “[a] modification of the specific requirements of
12
The statute creating the housing with services establishment expressly provides that such is not “[a] group
home licensed under IC 31-27 or IC 12-28-4.” I.C. § 12-10-15-3(b)(3).
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the [UDO] granted by the [BZA] in accordance with the terms of the [UDO].”
Exhibits Vol. 2 at 146. In other words, a variance is used where modification
from the literal enforcement of the provisions of the UDO is sought. Pursuant
to Section 9.15 of the UDO, an applicant must submit a variance application to
the Director, who is charged with “review[ing] the materials solely for the
purpose of determining whether the application is complete, is in technical
compliance with all applicable ordinances, laws and regulations.” Id. at 109.
The Director then forwards the variance request to the BZA, and the variance
application is placed on the BZA’s agenda for notice and a public hearing in
accordance with the BZA’s procedural rules. In this regard, we agree with the
Nagireddys that the Director’s role in the context of the variance process is
administrative, not substantive. The Director does not have the authority to
issue a variance decision or otherwise permit any sort of departure from the
UDO.
[26] Despite the fact that the Home does not fall within the UDO’s definition of
group home, Willow Haven did not seek a variance for its proposed use of the
Home. In approving Willow Haven’s building permit, the City stood behind
the Director’s determination that the Home could be built in an S1 district
without a variance. In this vein, the Director essentially made a unilateral
variance determination contrary to the authority granted him. A variance
determination is solely within the province of the BZA and such determination
is made by the BZA through procedures that require notice and a public
hearing. Even assuming the Home is a statutorily authorized housing with
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services establishment, whether such is a permitted use in an S1 district or the
result of a reasonable accommodation under federal law is a matter to be
addressed and decided by the BZA. The Director’s determination in this regard
is not binding. In short, the Nagireddys have established a prima facie case that
the Home is not a permitted use under the UDO as it is not a licensed group
home. Whether federal and state law mandate that a variance be granted, or a
reasonable accommodation be made, is a matter to be determined by the BZA.
[27] Turning now to the remaining elements of a preliminary injunction, with
respect to the first element, Willow Haven argues that the Nagireddys did not
show that they will suffer irreparable harm because their claimed loss of value
to their property is purely financial and therefore, insufficient to warrant
equitable relief. See PrimeCare Home Health v. Angels of Mercy Home Health Care,
LLC, 824, 376, 383 (Ind. Ct. App. 2005) (noting that “[l]oss incurred that is
essentially financial is usually insufficient to warrant the grant of equitable
relief). Willow Haven also argues that the balance of harm tips in favor of the
elderly who suffer from Alzheimer’s or dementia as they will be denied their
right to live in a residential area.
[28] In finding in favor of the Nagireddys, the trial court determined that they were
not required to establish irreparable harm or that the balance of harms was in
their favor because Willow Haven’s intended use for the Home violates the
UDO and is therefore unlawful. See L.E. Servs., Inc. v. State Lottery Comm’n of
Ind., 646 N.E.2d 334, 349 (Ind. Ct. App. 1995) (noting that because the sale of
out-of-state lottery tickets violated the State constitution and statutes and was
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therefore unlawful, the plaintiff was not required to make a showing of
irreparable harm or a balance of the hardship in his favor). The trial court’s
conclusion in this regard is not erroneous.
[29] Finally, Willow Haven argues that the public interest will be disserved by the
issuance of an injunction because elderly who suffer from Alzheimer’s or
dementia will be denied their right to live in a residential area. The Nagireddys
maintain that this is not a “not in my back yard” situation. They do not dispute
that public policy and the UDO permit certain licensed group homes for
individuals with mental illness to be constructed in an S1 zoning district; they
simply contend that the unlicensed group home that Willow Haven intends to
operate is not one of them. The trial court concluded that enforcing the UDO
as it is written and enjoining further construction of the Home serves the public
interest. We agree. The UDO states that an impermissible use is a public
nuisance. Willow Haven’s intended use for the Home is not a permitted use
under the express language of the UDO. Under the circumstances presented,
imposition of a preliminary injunction best serves the public interest.
[30] In summary, the Nagireddys were not required to exhaust administrative
remedies before pursuing injunctive relief with the trial court, and the trial court
did not abuse its discretion in entering a preliminary injunction in favor of the
Nagireddys, thereby enjoining Willow Haven from completing construction of
the Home.
[31] Judgment affirmed.
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Foley, J., concurs.
Weissmann, J., dissents with separate opinion.
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Weissmann, Judge, dissenting.
[32] I agree with the City of Carmel (Carmel) that Willow Haven’s establishment
could be built in a residential zone without a variance. In my view, the
majority’s contrary conclusion has two flaws:
1. Because Carmel adopted its UDO three years before the legislature
added this category of group homes, it is of no moment that the UDO
fails to reference them.
2. The majority’s definition of group home risks illogical application by
allowing residential zoning for licensed group homes but requiring
variances for unlicensed group homes which closely emulate traditional
family environments.
The UDO Predates Adoption of Housing with Services Establishments
[33] The UDO’s failure to include housing with services establishments for
Alzheimer’s and dementia special care within its definition of group homes
does not mean they are excluded. Rather, the group home definition section of
the UDO is merely a reflection of the law in effect in 2018 when the UDO was
adopted. 13 The UDO incorporated three general categories of group homes in
existence at that time: (1) homes for children; (2) homes for people with
13
The UDO was adopted on October 16, 2017, and became effective on January 1, 2018. UDO § 1.32.
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developmental disabilities; and (3) homes for people experiencing mental
illness. Exhs. Vol. II, p. 130.
[34] A few years after the UDO definition took effect, the legislature added another
category of group homes for residents who need Alzheimer’s and dementia
special care. Ind. Code §§ 12-10-5.5-1, -2.5, -3, -4, -5 (as amended by 2021 Ind.
Legis. Serv. P.L. 48-2021, effective July 1, 2021). 14 This new type of group
home does not need the license required of the other three types of group homes
noted in the UDO’s group home definition but is still subject to State
regulation. See, e.g., Ind. Code § 12-10-5.5 et seq.
[35] Because the UDO is an intrinsically evolving document, it allowed for these
types of changes in the law without requiring an ordinance revision. For
instance, to ensure its continual compliance with state law, the UDO
automatically incorporates statutory changes. UDO § 1.15 (“Whenever Indiana
Code (sic) cited in the Unified Development Ordinance has been amended or
superseded, the Unified Development Ordinance shall be deemed amended in
reference to the new or revised code.”). The evolving nature of the UDO is also
reflected in its express acknowledgment that it must give way to higher
14
The legislature does not include Alzheimer’s Disease or dementia within its definition of mental illness in
Title 12. See, e.g., Ind. Code §§ 12-7-2-130, -117.6 (defining mental illness as “psychiatric disorder”). This is
presumably because medical experts largely agree Alzheimer’s Disease, which is the most common cause of
dementia, is more properly classified as a progressive neurodegenerative disease or a brain disorder. See
generally Alzheimer’s Disease, Mayo Clinic (Aug. 30, 2023), https://www.mayoclinic.org/diseases-
conditions/alzheimers-disease/symptoms-causes/syc-20350447.
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standards imposed by state and federal law. UDO § 1.09(B)(2)(b) (“Whenever a
provision of any State or federal code or regulation or other City ordinance or
regulation imposes a greater restriction or a higher standard than is required by
the [UDO], the provision of the State or federal code or regulation or other City
ordinance or regulation shall apply.”)
[36] Here, Carmel reviewed Willow Haven’s application within the overall
framework of the UDO, as influenced by the Fair Housing Act, the ADA, and
Indiana’s laws as supplemented by the legislation creating new group homes for
Alzheimer’s and dementia care. Carmel concluded that the UDO treated all
group homes for persons with disabilities in the same way the UDO treated
single-family dwellings. App. Vol. II, pp. 81-82. Indeed, Willow Haven is the
second housing with services group home permitted as part of Carmel’s S1
zoning. App. Vol. II, pp. 81- 85. Given all these factors, I would find Carmel
properly included Willow Haven within residential zoning absent a variance.
Reliance Only on the UDO’s Definition Section Risks Illogical Results
[37] Interpretation of ordinances is a question of law that we review de novo and to
which we apply the rules of statutory construction. Noblesville, Ind., Bd. of Zoning
Appeals v. FMG Indianapolis, LLC, 217 N.E.3d 510, 513-14 (Ind. 2023). As
always, the first step is to determine whether an ambiguity exists. Id. By now, it
is evident that the majority and I read the UDO differently. Thus, the UDO is
“open to judicial construction.” Anderson v. Gaudin, 42 N.E.3d 82, 85 (Ind.
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2015). Crucial here is the desire to avoid interpretations that “bring about an
unjust or absurd result.” Id. I fear the majority’s decision does precisely that.
[38] Interpreting the UDO’s group home definition to exclude unlicensed housing
with services establishments for Alzheimer’s and dementia special care—when
it already allows for licensed establishments—is illogical. As planned, Willow
Haven’s group home will have two dementia-certified caretakers on site at all
times to help residents with their daily activities. Each resident will have their
own bedroom and bathroom but share a common living room and kitchen.
Groceries will be provided, and a chef will cook the meals, which will be shared
family-style. Residents will participate in housekeeping chores as their
conditions allow.
[39] In sum, although Willow Haven’s establishment closely resembles a residential
family home, under the majority’s interpretation of the UDO, Willow Haven
must obtain a variance. A licensed group home for persons with developmental
disabilities at the same site would not. This disparity is illogical, and I cannot
conclude that the UDO intended this result.
[40] Carmel interpreted its UDO to allow Willow Haven’s construction within its S1
zoning. Because this interpretation is correct, I would reverse and remand for
the trial court to vacate the preliminary injunction.
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