Yeager v. McManama, 874 N.E2d 629 (Ind. Ct. App. 2007)

Two homeowners successfully sued the developer of a custom home subdivision for constructive fraud and related claims when the developer allowed substantially smaller and less-expensive homes to be built in the subdivision after making representations that the neighborhood would be an "exclusive custom home" neighborhood with high quality homes comparable to the architectural quality and size of the homeowners' proposed homes. Some of the smaller, less-expensive homes met the minimum standards, but some did not. The court emphasized that the developer did not qualify its statements by telling the prospective buyers: (1) what were the actual minimum requirements; (2) that the Declaration gave the architectural review board the sole authority to approve home plans; and (3) that the architectural standards could be changed at will by the developer.

New Haven v. Flying J., Inc., 2009 WL 2735747 (Ind. Ct. App.), Aug. 31, 2009

A travel plaza developer sought development plan approval from the city. Prior to plan submittal, the city amended its ordinance in a way that would prohibit the proposed plaza. The City Plan Director denied the proposed plan, and BZA affirmed that denial. The trial court reversed the BZA, and the Court of Appeals affirmed the trial court. This case included a good discussion of how to analyze a vested rights case in the post-Pinnacle era. Most interesting is the fact that the courts found that the developer had a vested right in the prior zoning ordinance even though no building permit had been filed and no construction had begun. In supporting their decision, the courts focused on the $4 million spent on site acquisition, engineering, surveying and legal expenses and found that these expenses (particularly the tens of thousands of dollars spent on engineering and surveying) constituted more than mere "preliminary" work akin to merely applying for a building permit.

Buckhead Realty, LLC v. Jeffersonville BZA, 910 N.E.2d 866 (Ind. Ct. App. 2009) Memorandum Decision – Not For Publication

Nearby restaurants lacked the standing to challenge BZA approval of competing restaurant's parking standards variance petition when challengers failed to assert any pecuniary injury from the approval.

West v. City of Princeton, 901 N.E.2d 1141 (Ind. Ct. App. 2009), rehearing denied.

The trial court and Court of Appeals upheld city's annexation, finding that: (1) the city complied with notice requirement of providing a "detailed summary" of its fiscal plan; and (2) the city did not need to establish that the annexation was not solely for revenue generation.

Madison County Bd. of Commissioners v. Town of Ingalls, 905 N.E.2d 1022 (Ind. Ct. App. 2009), trans. denied.

The trial court and Court of Appeals concluded that county lacked standing to challenge town's annexation when county did not own property inside or within ½ mile of the annexed territory, and thus did not satisfy statutory standing requirements.

Scalambrino v. Town of Michiana Shores, 904 N.E.2d 673 (Ind. Ct. App. 2009)

The trial court and Court of Appeals upheld the town's site lease to a cell tower owner and the town's decision to rezone property to permit the cell tower construction, concluding that: (1) the town council's "motivation" behind the rezone (allegedly to "legalize" the site lease) was irrelevant; (2) the plan commission's 5-day notice of the public hearing "substantially complied" with the statutory 10-day requirement; and (3) the rezoning did not constitute unlawful "spot zoning."

Highland Springs South HOA Assoc., Inc. v. Reinstatler, 907 N.E.2d 1067 (Ct. App. 2009)

The Court of Appeals reversed the trial court's decision dismissing HOA's action to enjoin homeowner from building a home addition that would violate a restrictive covenant even though the homeowner obtained a variance from the local BZA to construct the addition, holding that the BZA variance did not deprive the trial court of jurisdiction over the case (acknowledging well-established rule that zoning ordinances and laws cannot relieve real estate from valid private restrictive covenants).

Thomas v. Blackford County BZA, 907 N.E.2d 988 (Ind. 2009)

The Supreme Court granted transfer and affirmed the trial court decision (following Court of Appeals' decision that previously had reversed trial court). The trial court held an evidentiary hearing on standing, evaluated conflicting evidence and concluded that the neighbor who lived 1/3 mile away from a proposed CAFO lacked standing because she failed to prove that she would suffer a special pecuniary harm unique from the community as a whole. Given the conflicting evidence regarding whether the neighbor's home would be devalued, the Supreme Court held that the trial court's decision could not be viewed as clearly erroneous.

Scott County Area Plan Comm'n v. Townes Half-Way House, Inc., 909 N.E.2d 515 (Ind. Ct. App. 2009), unpublished disposition

The Court of Appeals affirms the trial court, which ruled in favor of a not-for-profit organization that operated several half-way houses, concluding that the use fit the definition of permitted "single-family dwelling" and not the definition of prohibited "half-way house." This case included a great primer on rules interpretation for zoning ordinances, as follows:

  • Interpretation of zoning ordinance is a question of law.
  • Ordinary rules of statutory construction apply in interpreting the language of a zoning ordinance.
  • An ordinance should be interpreted as a whole, and the courts will give words their plain, ordinary and usual meaning.
  • Because zoning ordinances limit the free use of property, they are in derogation of the common law and must be strictly construed.
  • Courts will interpret a zoning ordinance in favor of the free use of land and will not extend restrictions by implication.
  • When a zoning ordinance is ambiguous, it should be construed in favor of the property owner.
  • On the other hand, zoning ordinances are generally construed to be held valid where possible.
  • Every word should be given effect and meaning, and no part should be held meaningless if it can be reconciled with the rest of the ordinance.

Town of Munster BZA v. Abrinko, 805 N.E.2d 488 (Ind. Ct. App. 2009)

The Court of Appeals affirmed the trial court's decision reversing the BZA's grant of site yard setback variance. IC 36-7-4-918.5 provides that a variance may be granted only upon a determination that:

(1) the approval will not be injurious to the public health, safety, morals and general welfare of the community;

(2) the use and value of the area adjacent to the property included in the variance will not be affected in a substantially adverse manner; and

(3) the strict application of the terms of the zoning ordinance will result in practical difficulties in the use of the property.

In order to satisfy the "practical difficulties" test, courts generally require the petitioner to prove "significant economic injury from the enforcement of the zoning ordinance." Other considerations include: (i) whether the injury is self-created or self-imposed; and (ii) whether any feasible alternative is available which accomplishes the landowner's goals. In this case, the courts held that the BZA's general finding of practical difficulties was not supported by any evidence of significant economic injury to petitioner.

Interesting Note: the BZA and the petitioner did not challenge the remonstrator's standing to challenge the variance (which might have been successful based on the court's finding that the variance would not affect the surrounding properties' value or use).

Jacobsville Developers East, LLC v. Warrick County APC, 905 N.E.2d 1034 (Ind. Ct. App. 2009)

Warrick County's Subdivision Control Ordinance required that a plat include the dedication of a right-of-way as shown on the thoroughfare plan. In this case, the developer filed a plat for a 2-lot subdivision and did not include the 50' right-of-way dedication. As a result, the County APC denied the plat application. The developer filed a certiorari action with the trial court, alleging that the dedication requirement, as applied to its plat application, constituted an excessive exaction. As the U.S. Supreme Court has explained in the Dolan1 case, to be constitutional, an exaction must satisfy a two-part test: (1) an "essential nexus" must exist between a legitimate government interest and the exaction; and (2) the exaction must be "roughly proportional" to the impact of the proposed development. The developer then changed strategies, dismissed its certiorari action and re-filed its plat with the required right-of-way dedication. After the APC approved the plat, the developer then filed a new action in court, alleging that the APC's approval of the plat constituted an uncompensated taking.

The Court of Appeals hints that the exaction might not pass constitutional muster; however, the Court of Appeals upholds the trial court’s dismissal based on the developer's failure to exhaust its administrative remedy, concluding that the developer could have obtained a satisfactory remedy in its certiorari case. The court essentially states that the developer's decision to change course and submit a plat that included the dedication was “voluntary” and therefore not compensable; and, that in order to get relief, the developer should have omitted the dedication, let the APC deny the plat and then pursue a certiorari case challenging the exaction. It seems like this decision places a developer on the horns of a dilemma: either (1) challenge the exaction and suffer delay and costs in the certiorari process (the “win” of not having to dedicate the right-of-way would come at the cost of delay and expense); or (2) avoid the certiorari delay and cost by including the required dedication on your plat, but, by doing so, you then “voluntarily” give up your right to compensation. The Court of Appeals does not seem to provide any avenue for a landowner to dedicate the required right-of-way and receive compensation.

Benton County Remonstrators v. Benton County BZA, 905 N.E.2d 1090 (Ind. Ct. App. 2009)

The Court of Appeals held that adjoining landowners had standing to appeal the BZA's approval of a CAFO because their own opinion testimony of potential devaluation was sufficient to constitute a special injury and to establish a potential pecuniary harm. The court emphasized the fact that the remonstrators were adjoining landowners and cited a 1936 Indiana Supreme Court case for the proposition that a land owner can testify as to his own opinion of his property's value even though he might not be qualified to testify if he weren't the owner.