Ad Craft, Inc. v. AREA PLAN COM'N OF EVANSVILLE

• Decision Date: 16 August 1999
• Docket Number: No. 82A04-9806-CV-289.,82A04-9806-CV-289.
• Citation: 716 N.E.2d 6
• Parties: AD CRAFT, INC. and Chancellor Media Corporation, Appellants-Defendants, v. AREA PLAN COMMISSION OF EVANSVILLE AND VANDERBURGH COUNTY, Appellee-Plaintiff. Andrew Guagenti; Robert Griffin; Robert G. Woodward; William Shepherd; Janet Shepherd; Expressway Dodge, Inc.; Robert Kent Motor Company, Inc. d/b/a Kenny Kent Toyota-Mitsubishi; Citizens National Bank of Evansville as Trustee of Expressway North Associates Land Trust and Trust No. 116225; Fielding Court Homeowners Association; and Field Court Apartments, Appellees-Defendants.
• Court: Indiana Appellate Court

716 N.E.2d 6

AD CRAFT, INC. and Chancellor Media Corporation, Appellants-Defendants, v. AREA PLAN COMMISSION OF EVANSVILLE AND VANDERBURGH COUNTY, Appellee-Plaintiff.

Andrew Guagenti; Robert Griffin; Robert G. Woodward; William Shepherd; Janet Shepherd; Expressway Dodge, Inc.; Robert Kent Motor Company, Inc. d/b/a Kenny Kent Toyota-Mitsubishi; Citizens National Bank of Evansville as Trustee of Expressway North Associates Land Trust and Trust No. 116225; Fielding Court Homeowners Association; and Field Court Apartments, Appellees-Defendants.

No. 82A04-9806-CV-289.

Court of Appeals of Indiana.

August 16, 1999.

Rehearing Denied October 13, 1999.

Robert R. Faulkner, Leslie C. Shively, Fine & Hatfield, A Professional Corporation, Evansville, Indiana, Attorneys for Appellants.

D. Timothy Born, Shawn M. Sullivan, Terrell, Baugh, Salmon & Born, L.L.P., Evansville, Indiana, Attorneys for Appellee Area Plan Commission of Evansville and Vanderburgh County.

R. Thomas Bodkin, Douglas A. Welp, Bamberger, Foreman, Oswald and Hahn, L.L.P., Evansville, Indiana, Attorneys for Appellees Andrew Guagenti and Robert Griffin.

Paul J. Wallace, Cedric Hustace, Bowers, Harrison, Kent & Miller, L.L.P., Evansville, Indiana, Attorneys for Appellee Robert Kent Motor Company, Inc. d/b/a Kenny Kent Toyota-Mitsubishi.

Donald R. Wright, Wright, Evans & Daly, Evansville, Indiana, Attorney for Appellee Fielding Court Homeowners' Association.

OPINION

BROOK, Judge

Case Summary

Appellants-defendants Ad Craft, Inc. ("Ad Craft")¹ and Chancellor Media Corporation ("Chancellor Media")² (collectively "appellants") appeal the following rulings: (1) the trial court's refusal to grant Ad Craft's motion to dismiss; (2) the trial court's refusal to grant Ad Craft's motion for change of venue from Vanderburgh County; and (3) the trial court's failure to find a genuine issue of material fact to preclude its grant of partial summary judgment to appellee-plaintiff Area Plan Commission of Evansville and Vanderburgh County ("APC"). We affirm and remand for further proceedings.

Issues

Appellants raise three issues for review, which we restate as follows:

(1) whether the trial court erred in refusing to grant Ad Craft's motion for change of venue from Vanderburgh County;

(2) whether the trial court erred in refusing Ad Craft's motion to dismiss; and

(3) whether the trial court erred in failing to find a genuine issue of material fact to preclude its grant of partial summary judgment to APC on the question of the validity of Ad Craft's improvement location permit ("permit") for an off-site outdoor advertising sign.

Facts and Procedural History

The issues in this case arise from Ad Craft's erection of an off-site outdoor advertising sign on a vacated right-of-way adjacent to Outlot C ("Outlot C") of Metro Centre East Commercial subdivision, Section I ("Metro subdivision"); the street address of Outlot C is 101 Metro Avenue in the city of Evansville in Vanderburgh County, Indiana.

The essential facts relevant to our review indicate that the plat of the Metro subdivision was recorded on December 23, 1991. Signing restrictions were listed on the plat, mandating that signage on Outlot C "shall be limited to 25 feet above grade."³ Beginning on July 23, 1992, Ad Craft applied to APC for permits to erect a sign on Outlot C, which is owned by defendant-appellee Andrew Guagenti ("Guagenti"). Pursuant to EVANSVILLE, IND., MUN.CODE § 15.153.10.156(B)(2), a permit application must include the following:

(a) A site plan for the principal and accessory structures and uses, existing and proposed, showing size, location on lot, and lot size.

(b) Except for one and two-family dwellings and accessory buildings, the site plan must also show the following:

(1) The exact property lines of property, including existing street and right-of-way lines....

Under EVANSVILLE, IND., MUN.CODE § 15.153.10.156(C)(2), "[a]n improvement location permit is void if construction has not started or the use has not been established within six months of the date of issuance." Consequently, Ad Craft's permits # 921245 (dated July 24, 1992) and # 931578 (dated September 20, 1993) became null and void because of Ad Craft's failure to erect a sign on the property within six months of the date of issuance of the permits.

On March 1, 1995, the Evansville city engineer approved Ad Craft's application for an encroachment permit (# 7362) on Outlot C for the purpose of constructing a billboard. The next day, Ad Craft received permit # 950255 to erect a sign on Outlot C. On August 28, 1995, Ad Craft applied to renew permit # 950255 because the sign had not yet been constructed. On September 1, 1995, Ad Craft was issued permit # 951518 to erect a sign on Outlot C.⁴

On October 18, 1995, Guagenti filed a petition "for the vacation of a portion of Local Service Road No. 7 adjacent to the north boundary line of Lot 1 Metro Centre East, Section 1 located between Stockfletch Ditch on the east and Metro Avenue on the west"; the right-of-way in question is located directly south of Outlot C. Guagenti's petition was granted by a city ordinance on or about November 29, 1995. Ad Craft later erected a sign more than 25 feet in height in the vacated right-of-way adjacent to Outlot C.

On February 29, 1996, attorney Steven L. Bohleber ("Bohleber"), representing appellee-defendant Expressway Dodge, Inc. ("Expressway Dodge"), wrote a letter to APC's attorney to express his concern that "a large billboard [was] about to be erected immediately east of [his] client's property" in the recently vacated right-of-way adjacent to Outlot C. Bohleber also made the following observations, which happen to be an excellent summary of the zoning issues in controversy:

I readily concede that the owners of Outlot C acquired fee simple ownership in the vacated portion [i.e., the adjacent right-of-way]. The implications of the vacation on subdivision restrictions, existing permits and land use regulations are not as clear. Either the zoning permits and restrictions follow the vacation or they do not. In either case, I do not believe the developers and owners of the vacated portion can erect a billboard as they are apparently intending. If the restrictions followed the vacation, they are limited to 25 feet. If the restrictions and zoning do not follow the vacation, the vacated portion is not zoned correctly to allow a billboard and has no valid permit.... Therefore, any way you look at the effect of this vacation, it prohibits the erection of this billboard.

On September 7, 1995, on March 2, 1996, and again on March 12, 1996, appellee-defendant Robert G. Woodward ("Woodward") filed a permit application on behalf of both Universal Outdoor and himself as the owner of applicable sign rights to erect a commercial billboard at 5700 Division Street in Evansville. The proposed billboard would be located within 300 feet of Ad Craft's existing billboard in violation of EVANSVILLE, IND., MUN.CODE § 15.153.07.125(D); therefore, APC was compelled to deny Woodward's permit requests. In a letter to APC dated March 4, 1996, Woodward asserted that Ad Craft's permit had expired because no sign had been erected on Outlot C, and that "[a] sign was illegally built on a section of R-1 zoned land adjoining lot 1 without a permit."⁵

On April 1, 1996, APC filed a complaint for declaratory judgment "pursuant to the Uniform Declaratory Judgments Act,"⁶ seeking resolution of the following issues under IND.CODE § 36-7-4-1014:

30. A controversy has arisen as to whether Ad-Craft [sic] may construct an off-premises sign on Outlot C or in the vacated right-of-way which exceeds twenty-five feet (25').

31. A controversy has likewise arisen as to whether the off-premise sign constructed by Ad-Craft [sic] has been constructed in the location described in Improvement Location Permit No. 951518; it is the position of some of the defendants that said off-premises sign was not constructed in said location which renders said Improvement Location Permit void.

32. A controversy has likewise arisen as to what the zoning classification of the vacated right-of-way is and whether the zoning restrictions on the vacated right-of-way permit an off-premises sign.

33. A controversy has likewise arisen as to whether the APC may issue an improvement location permit to Universal [Outdoor] for the erection of an off-premise sign at 5700 Division Street, Evansville, Indiana; to the extent that Ad Craft has a valid and enforceable permit for the erection of an off-premise advertising display on Outlot C, [EVANSVILLE, IND., MUN.CODE § 15.153.07.125] appears to preclude the APC from issuing an improvement location permit to Universal [Outdoor] for the erection of an off-premise sign at 5700 Division Street, Evansville, Indiana.

APC requested that the trial court enter a declaratory judgment to determine the issues raised by the above controversies.⁷ On April 17, 1996, Ad Craft filed a verified motion for change of venue from Vanderburgh County, in which it stated that Ind. Trial Rule 76(A) provides for a change of motion "when the county where the suit is pending is a party to the suit."⁸ Ad Craft initially did not serve a copy of the motion upon any party other than APC, which struck Gibson County from the list of three counties submitted by the trial court on April 22, 1996. On that date, Ad Craft struck Posey County from the list, and the trial court ordered the cause venued to Warrick County. On April 24, 1996, APC filed a motion to reconsider granting change of venue from Vanderburgh County, citing IND.CODE § 36-7-4-1014(a) and (f):

(a) The plan commission or any enforcement official designated in the zoning ordinance may bring an action in the circuit or superior court of the county to invoke any legal, equitable, or special remedy for the enforcement of this chapter or any ordinance adopted or action taken under this chapter....

(f) If the plan commission or designated

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