Stokes v. City of Mishawaka

• Decision Date: 21 October 1982
• Docket Number: No. 3-481A106,3-481A106
• Citation: 441 N.E.2d 24
• Parties: Charles STOKES, et al., Plaintiffs-Appellants, v. CITY OF MISHAWAKA, Indiana, and Moyer-Turk Associates, an Indiana Partnership, Defendants-Appellees.
• Court: Indiana Appellate Court

Page 24

441 N.E.2d 24

Charles STOKES, et al., Plaintiffs-Appellants, v. CITY OF MISHAWAKA, Indiana, and Moyer-Turk Associates, an Indiana Partnership, Defendants-Appellees.

No. 3-481A106.

Court of Appeals of Indiana,

Third District.

Oct. 21, 1982.

Don G. Blackmond, South Bend, for plaintiffs-appellants.

John D. Bodine, George V. Filippello, Mishawaka, for defendants-appellees.

GARRARD, Judge.

The appellants are homeowners residing outside the city limits of Mishawaka. They sought a declaratory judgment to the effect that an ordinance zoning a tract of land for commercial development was invalid. After a hearing the trial court ruled that appellants ("homeowners") did not have standing to maintain their action and should take nothing by way of their complaint. From a denial of their motion to correct errors homeowners now appeal.

The homeowners reside in a wooded area adjacent to the city limits of Mishawaka. The land lying within the city contiguous to this residential area was an open field of approximately 12 acres, with commercial development in the corner farthest from landowners. The tract had been incorporated into the city in 1975 but the property was not zoned by any specific ordinance of the city. In a comprehensive plan adopted by the city in 1976 the tract had been designated as "residential reserve."

The partnership of Moyer-Turk owned the tract and for several years had sought a commercial zoning classification. In August of 1978 Moyer-Turk petitioned the common council to zone the tract for planned unit development. The petition was denied. In January of 1979 Moyer-Turk petitioned for a zoning classification of C-2, which would have permitted commercial development. The zoning petition failed to pass in the council, the vote being 4 against and 4 in favor. On October 1, 1979 Moyer-Turk petitioned again to have the tract zoned for planned unit development. The petition was passed by the council, 5 votes for and 4 against. In each of these instances the city's plan commission had recommended approval of the requested zoning.

Throughout these proceedings Jean Bodine Powell was a member of the common council. In August of 1978 she voted against the petition. Moyer-Turk was then represented by Mr. Laughlin. In January of 1979 Moyer-Turk was represented by John Bodine, who is the son of Mrs. Powell. Apparently because her son was representing petitioners, Mrs. Powell refrained from voting. The petition for zoning failed to pass because the vote was tied, 4 council members for and 4 against. In October of 1979 Mrs. Powell did vote in favor of the petition for planned unit development zoning and the petition passed. Mr. Bodine also represented Moyer-Turk in that proceeding before the common council.

The homeowners then sought declaratory relief under IC 34-4-10-2. They asserted the ordinance zoning the property for planned unit development was invalid, having been adopted "under a circumstance demonstrating a conflict of interest," being "violative of the doctrine of 'appearance of fairness ...," and contrary to principles of res judicata. A hearing was held on September 8, 1980 and on September 30, 1980 the trial court entered judgment as follows:

"The Court having had this matter under advisement, being duly advised, and having read the brief of plaintiff now enters judgment.

The issue of standing is an interesting one. People outside the city limits who pay no taxes or other support to the City, wish to control the decision of the City, under the banner of 'protection of one's own property.' The Revolutionary War was fought upon the proposition of taxation without representation. Our case is the reverse of that.

The Court finds that plaintiffs have no standing to bring this lawsuit.

Realizing this case may be appealed and in an effort to put all issues in one appeal and not compound lawsuits, the Court will decide the additional issues of this cause.

Res Judicata is a valid doctrine. In August, 1978, a request for zoning was filed to have this real estate zoned P. U. D. and was defeated. On January 15, 1979, a request to have the property zoned C-2 Commercial was filed and defeated. The present request for P. U. D. zoning was filed October 1, 1979.

If one is not allowed to file a petition for a different zoning within one year, then in that event the second petition would be the one which would be barred by res judicata. More than one year has passed since P. U. D. petition was filed.

Note: All parties refer to this as a rezoning; however, the land was never zoned after it was annexed by the City of Mishawaka.

Extending the Doctrine of 'Appearance of Fairness' to its extremity would hamstring a common council until it could not perform its work. A banker in a small town does business with 80 to 90% of the business therein and with a large percent of the residents. The logic would be to say that a banker could not serve as a council member.

"There is no evidence that any improper influence was used or considerations were made in this decision, and we are left with true 'appearance of fairness'--this being the attorney for petitioner was the son of a council member.

Under all the circumstances the court does not find a reversal justified.

Although the correctness of the Council's decision is not an issue, it is nevertheless interesting to note that several commercial buildings are already on the real estate in question and that said real estate is just across the street from one of the largest shopping centers in northern Indiana.

IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that plaintiffs have no standing to bring this cause.

It is Further Ordered, Adjudged and Decreed that on all other issues plaintiffs take nothing by way of their complaint.

Costs v. plaintiffs.

Dated this 30th day of September, 1980."

In summary, the trial court found the appellants did not have standing to seek declaratory relief. The court also determined that even given standing, the appellants' claims did not entitle them to relief. The court stated the zoning action was not contrary to principles of res judicata or any "doctrine of appearance of fairness."

The appellants raise the following issues: ¹

1. The trial court's finding and decision that the landowners have no standing to bring suit to challenge the Ordinance # 2321, enacted by the City of Mishawaka is contrary to law and an abuse of discretion.

2. The trial court's finding and decision that the landowners cannot prevail upon the theory of Res Judicata or upon the theory of the doctrine of "Appearance of Fairness" is contrary to law.

3. The trial court, having resolved the issue of standing against the landowners, erroneously decided the issues relating to the doctrine known as Res Judicata and the doctrine of "Appearance of Fairness" as being contrary to law and superfluous as obiter dicta.

ISSUE 1:

The trial court held the homeowners did not have standing to seek declaratory relief.

IC 34-4-10-2 provides:

"Any person interested under a deed, will, written contract or other writings constituting a contract, or whose rights, status or other legal relations are affected by a statute, municipal ordinance, contract or franchise, may have determined any question or construction or validity arising under the instrument, statute, ordinance, contract, or franchise and obtain a declaration of rights, status or other legal relations hereunder." [Acts 1927, ch. 81, Sec. 2, p. 208.]"

Homeowners challenge the validity of the zoning ordinance. A declaratory judgment action is the proper method whereby such a result may be obtained. Town of St. John v. Home Builders Association of Northern Indiana, Inc. (1981), Ind.App., 428 N.E.2d 1299, 1303. The issue is whether homeowners are "persons ... whose rights, status or other legal relations are affected by ... municipal ordinances."

The homeowners contend their rights as property owners were affected because the zoning and potential for commercial development had an adverse impact upon their property values. However, the trial court in its order stated summarily that the homeowners did not have standing. The court did not make specific findings in support of its determination. Thus we are faced with a general finding that the homeowners did not have standing to seek declaratory relief.

No Indiana case directly addresses the present issue of whether non-residents of a city owning property contiguous to but outside the city limits have standing to challenge a zoning ordinance of the city which may affect the value of their property.

In Zoercher v. Agler (1930), 202 Ind. 214, 221, 172 N.E. 186, our Supreme Court determined that under the Uniform Declaratory Judgments Acts:

"[T]he person bringing the action must have a substantial present interest in the relief sought, such as there must exist not merely a theoretical question or controversy but a real or actual controversy, or at least the ripening seeds of such a controversy, and that a question has arisen affecting such right which ought to be decided in order to safeguard such right."

Pursuant to the criteria delineated in Zoercher, we have recognized that under limited circumstances taxpayers who do not reside within an annexed area have standing to seek declaratory relief to challenge the annexation by their city even though under IC 18-5-10-24 only residents of the annexed area who meet specific requirements had statutory standing to remonstrate against the annexation. Pitts v. Mills (1975), 165 Ind.App. 646, 333 N.E.2d 897; and Montagana et al. v. City of Elkhart (1971), 149 Ind.App. 283, 271 N.E.2d 475. Also, our decision in Stout v. Mercer (1974), 160 Ind.App. 454, 312 N.E.2d 515 is relevant. The appellees therein petitioned for review by certiorari of the granting of a variance by the board of zoning appeals. The appellees had not appeared and objected at the hearing held on the matter. The trial court, upon appellees' petition,...