Adult Group Properties, Ltd. v. Imler

Decision Date24 March 1987
Docket NumberNo. 48A02-8604-CV-124,48A02-8604-CV-124
Citation505 N.E.2d 459
PartiesADULT GROUP PROPERTIES, LTD., et al, Appellants (Defendant Below), v. Richard IMLER and Mary Ann Imler, Appellees (Plaintiff Below).
CourtIndiana Appellate Court

John M. Blevins, Michael C. Ice, Anderson, for appellants.

Michael R. Withers, Anderson, for appellees.

CONOVER, Presiding Judge.

Defendant-Appellant Adult Group Properties, Ltd., et al. (AGP) appeals the trial court's granting of a permanent injunction enjoining AGP from building a structure for the developmentally disabled in a residential subdivision.

We affirm.


AGP presents two issues for our review. Restated, they are

1. whether the trial court erred by finding a residential subdivision's restrictive covenants lawfully could be invoked to prohibit construction of a residential facility for developmentally disabled or mentally ill persons which was to be operated as a commercial enterprise in violation of those covenants; and

2. whether the trial court erred by finding the proposed use was non-residential and multi-family.


Extension Heights is a subdivision of the city of Anderson, Indiana. The plat of the subdivision, duly recorded in 1960, contains restrictive covenants regarding use and occupancy of the lots therein. Covenants numbered one and two provide

1) LAND USE AND BUILDING TYPE: No lot shall be used except for residential purposes. No building shall be erected, altered, placed or permitted to remain on any lot other than one detached single family dwelling not to exceed two and one-half stories in height ...

2) ARCHITECTURAL CONTROL: No building shall be erected, placed, or altered on any lot in the subdivision until the building plans, specifications, and plot plans showing the location of such building have been approved in writing by the directors of the Board of Church Extension and Home Missions of the Church of God.

(R. 31). The covenants also provided they were to run with the land.

Appellees Richard and Mary Ann Imler (Imlers) purchased lot number one in Extension Heights in 1960. Theirs was the first home in this subdivision. The covenants were important to the Imlers when they purchased the lot. The covenant providing subdivision lots would be used for residential purposes only was one of the reasons they bought a lot there instead of elsewhere.

Much later, DEVCO Mortgage Company (DEVCO), an Ohio corporation, AGP's nominal party, acquired title to lot number two bordering the Imlers' lot. On October 22, 1985, DEVCO conveyed lot two to AGP, an Ohio limited partnership. DEVCO is in the business of erecting and operating residential facilities for developmentally disabled or mentally ill persons in residential subdivisions throughout the state as a commercial enterprise.

The architect for DEVCO contacted Mr. Imler on December 12, 1985, the evening of the day a contractor removed the top soil from lot two preparatory to beginning construction of AGP's proposed facility. The architect told Imler he did not believe he needed the Church Board's permission to put the proposed business there, the covenants The subdivision's covenants also provided for their enforcement by way of injunction. The Imlers filed suit for injunction the next day and a restraining order then a temporary injunction issued against DEVCO and its real party in interest, AGP who had intervened. The temporary injunction prevented the erecting of the proposed facility until approval had been obtained from the Church Board.

had nothing to do with whether or not it could be so placed. He further told Imler the structure would be used for a business purpose.

When AGP received the Board's approval, the trial court after hearing, issued a permanent injunction against the erecting of the proposed facility because the covenants restricted the use of the subdivision's lots to residential purposes only, and AGP's proposed facility was a business enterprise.

AGP appeals.


Whether to grant or deny an injunction lies within the trial court's sound discretion. City of Muncie v. Pizza Hut of Muncie, Inc. (1976), 171 Ind.App. 397, 357 N.E.2d 735, 736. Unless it can be shown the decision of the trial court was arbitrary or an abuse of discretion, the court's judgment will not be disturbed. Id.

In reviewing a trial court's discretionary power to grant or deny an injunction, this court considers only the evidence which supports the trial court's judgment along with all reasonable inferences which may be drawn therefrom. State ex rel. D.N.R. v. Mason (1981), Ind.App., 416 N.E.2d 1312, 1315.

AGP argues certain Indiana statutes demonstrate a public policy to integrate the developmentally disabled and mentally ill into the various communities of Indiana. To support its position, AGP points to four Indiana statutes, namely, IND.CODE 16-13-22-1, 16-13-22-3, 16-13-21-12, and 16-13-21-14 which it claims support its position. Our reading of these sections reveals only two of them are relevant to the issues in this appeal.

The first two sections AGP cites deal with the planning and administration of community based residential alternatives to institutionalization of the developmentally disabled and mentally ill. The first provides facilities for such persons shall have a homelike atmosphere. The second requires placement of program participants in programs which are the least restrictive consistent with their individual needs. Neither section deals with the location of such facilities in residential areas. The remaining two, however, touch that subject matter.

IC 16-13-21-12 says

Zoning ordinances adopted under IC 36-7 may not exclude a residential facility for the developmentally disabled from a residential area solely because the residential facility is a business or because the persons residing in the residential facility are not related, unless the residential facility will be located within three thousand feet (3,000) of another residential facility, as measured between lot lines.... (Emphasis supplied),

and IC 16-13-21-14 reads in pertinent part

Any restriction, ... or covenant in any subdivision plat, ... pertaining to, the ... use of property that would permit the residential use of property but prohibit the use of that property as a residential facility for the developmentally disabled or mentally ill persons, is, to the extent of the prohibition, void as against the public policy of the state. (Emphasis supplied).

Two things are markedly different between these two sections, namely, (a) facilities for mentally ill persons may be excluded by local zoning ordinances in residentially zoned areas, and (b) the emphasized language in Section 12 or words of similar import allowing commercial operation of facilities for the developmentally disabled and mentally ill persons in residential subdivisions protected by restrictive covenants do not appear in Section 14. Nothing indicates such language was omitted from Section 14 through inadvertence or mistake. We further note Sections 12 and 14 of IC 16-13-21 were passed during the same session of the legislature and on the same day. Thus, the question is did the legislature intend such facilities could be built and operated as business enterprises in subdivisions protected by covenants restricting use of lots therein to residential purposes only?

A. Rules of Construction

When construing statutes, our foremost concern is to determine and give effect to the true intent of the legislature. Frame v. South Bend Community School Corp. (1985), Ind.App., 480 N.E.2d 261, 263. Statutes which relate to the same thing or general subject matter are in pari materia and should be construed together. Citizen's Action Coalition of Indiana, Inc. v. NIPSCO (1985), Ind., 485 N.E.2d 610, 617. Wright v. Gettinger (1981), Ind., 428 N.E.2d 1212, 1219; Matter of Lemond (1980), 274 Ind. 505, 413 N.E.2d 228, 245, n. 15; U.S. Steel v. NIPSCO (1985), Ind.App., 486 N.E.2d 1082, 1085; Johnson v. LaPorte Bank & Trust Co. (1984), Ind.App., 470 N.E.2d 350, 354-355; Ind. State Hw'y. Comm'n. v. Bates & Rogers Constr., Inc. (1983), Ind.App., 448 N.E.2d 321, 323-324. Also, laws passed at the same session of the legislature relating to the same subject matter are in pari materia and should be construed together, especially when they are approved on the same day. Obermeyer v. Indianapolis Lien & Credit Co. (1968), 251 Ind. 382, 241 N.E.2d 252, 254. All statutes relating to the same subject matter should be so construed with reference to each other that effect may be given to all the provisions of each, if this can be done by any fair and reasonable construction, so as to produce a harmonious system, if possible. Ware v. State (1982), Ind.App., 441 N.E.2d 20, 22-23.

Statutes passed on the same day or at the same session, when related to the same subject, are presumed to be actuated by the same policy. It is proper to construe them together, as parts of one body of laws, and as together expressing legislative will. Combs v. Cook (1958), 238 Ind. 392, 151 N.E.2d 144, 147; Olszewski v. Stodola (1948), 226 Ind. 639, 82 N.E.2d 256, 257; Holle v. Drudge (1920), 190 Ind. 520, 524-525, 129 N.E. 229. We are to determine the intent of the legislature in this regard by considering each section of this Act with reference to all other sections and the legislature's apparent motive for leaving out wording in IC 16-13-21-14 which would permit the location and operation of business enterprises of this nature in residential areas protected by restrictive covenants. Combs, 151 N.E.2d at 147. In construing a statute, it is just as important to recognize what a statute does not say as it is to recognize what it does. Van Orman v. State (1981), Ind.App., 416 N.E.2d 1301, 1305; State ex rel. Schuerman v. Ripley County Council (1979), Ind.App., 395 N.E.2d 867, 870.

B. The Covenants Prevail

A careful reading of IC 16-13-21...

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