AREA PLAN COM. v. EVANSVILLE OUTDOOR ADVER.

Citation789 N.E.2d 96
Decision Date30 May 2003
Docket NumberNo. 65A01-0205-CV-161.,65A01-0205-CV-161.
PartiesAREA PLAN COMMISSION OF EVANSVILLE and Vanderburgh County, City of Evansville and Board of Commissioners of Vanderburgh Cty., Appellants-Defendants, v. EVANSVILLE OUTDOOR ADVERTISING, INC., Appellee-Plaintiff.
CourtIndiana Appellate Court

D. Timothy Born, Shawn M. Sullivan, Terrell Baugh Salmon & Born, LLP, Evansville, IN, Attorneys for Appellant.

Leslie C. Shively, Shively & Associates, Evansville, IN, Attorney for Appellee.

OPINION

FRIEDLANDER, Judge.

Evansville Outdoor Advertising, Inc. (Evansville Outdoor)1 filed a declaratory judgment action against the Area Plan Commission of Evansville and Vanderburgh County (the APC), the City of Evansville, and the Board of Commissioners of Vanderburgh County (collectively referred to as the Appellants), seeking to have four ordinances declared invalid and void as a matter of law. The Appellants appeal the trial court's judgment in favor of Evansville Outdoor and present the following consolidated and restated issue for review: Did the trial court erroneously declare the ordinances, "as they apply to the calculation and imposition of building permit fees on off-premises signs,"2 void as a matter of law?

We reverse and remand.

In response to inquiries at County Council budget hearings in 1997, the APC began reviewing its schedule of fees along with the fees charged in surrounding areas. This review revealed that it had been "a relatively long time" since most of the fees had been increased, and such fees were "consistently lower than most of the counties used for comparison." Appendix at 71. The APC staff concluded that past fee increases had not kept pace with operating costs, which had "increased dramatically in recent years due, in part, to the higher cost of the technology [used] to enter subdivision plats and other information into the computer, along with rising legal costs." Id. To offset these increased operating costs, the APC proposed to "increase fees, or establish a fee where one does not currently exist, for most types of activities administered/processed by APC." Id.

Following the APC's report, the local legislative bodies in Evansville and Vanderburgh County amended their respective ordinances in late 1997, granting the APC with authority to establish and collect reasonable fees. Evansville, Ind., Code § 15.153.10.168(A)3 and Vanderburgh County, Ind., Code § 17.36.140(A)4 contain identical language and state:

The Area Plan Commission shall establish and collect a schedule of reasonable fees associated with processing and hearing administrative appeals, petitions for rezoning, special uses, variances, subdivisions, reviewing permit applications, issuing permits, and other official actions taken under IC Title 36. The fee schedule shall be posted in a prominent place within the Area Plan Commission office where the fee schedule is readily available to the public.

Appendix at 65, 67. Prior to these amendments, the schedule of fees was set forth by ordinance rather than established by the APC.

Thereafter, the APC established a new schedule of fees, which became effective on January 1, 1998. Permit fees for off-premise signs (billboards) were among the numerous changes. The prior fee for a billboard permit was $100 and had not been increased since 1989. The APC established a new fee of $1 per square foot with a minimum charge of $100. This resulted in an increase of approximately 600% for the average billboard, which is about 600 square feet. Despite the increase, however, there was a flurry of billboard permits filed in 1999 in anticipation of stricter regulations on the horizon.

In the summer of 1999, approximately eighteen months after the new fee schedule became effective, Evansville and Vanderburgh County adopted comprehensive changes to their respective zoning ordinances regulating the time, place, and manner in which billboards are erected within the municipal boundaries.5 Among other things, these amendments made the application process for a billboard permit more complex, requiring the applicant to submit certified site plans to the APC. Vanderburgh County, Ind., Code § 17.27.50(D) and Evansville, Ind., Code § 15.153.07.124(D), which are among the amendments, each provide that permit fees for billboards "shall be based on total display area." Appendix at 50, 58. The ordinances, however, do not establish the amount of said fees.

On August 22, 2000, Evansville Outdoor filed a declaratory judgment action against the Appellants.6 Thereafter, on March 27, 2001, Evansville Outdoor filed an amended complaint. Count I of the amended complaint prayed for an order declaring Evansville, Ind., Code § 15.153.10.168(A) and Vanderburgh County, Ind., Code § 17.36.140(A) to be invalid and void as a matter of law. Evansville Outdoor specifically alleged that these ordinances "delegate the power to set the fee for an improvement location permit to the APC" and that "[s]aid delegation to the APC is in violation of IC § 36-1-3-1, et seq., which regulates the power of a municipality and a county to set fees for permits." Appendix at 23. Count II of the amended complaint sought an order declaring Vanderburgh County, Ind., Code § 17.27.50(D) and Evansville, Ind., Code § 15.153.07.124(D) to be invalid and void as a matter of law. The complaint noted that these ordinances "allow the APC to base the fee charged for an improvement location permit on total display area of the proposed sign." Id. at 24. The complaint then alleged that "[s]aid fee structure has no relationship to the administrative duties performed by the APC in issuing an improvement location permit for an outdoor advertising facility", and, therefore, the ordinances "violate Indiana law, which specifically prohibits the imposition of a permit fee that is in contravention of IC § 36-1-3-8(a)(5)." Id. Finally, in Count III of the amended complaint, Evansville Outdoor sought an award of damages for alleged overpayment of fees, in addition to attorney fees and costs.

The cause proceeded to a bench trial on October 30, 2001. After hearing evidence, the trial court took the matter under advisement. On February 4, 2002, the trial court entered its declaratory judgment, which provided in part:

I.
FINDINGS OF FACT
According to Defendants' Exhibit # 4 (D-4), on October 1, 1997, the Executive Director of the Evansville-Vanderburgh County Area Plan Commission distributed a packet of information to Commission members in support of the proposed increase in certain fees she planned to ask for in November, 1997.
* * *
Barbara L. Cunningham, the Executive Director, authorized the report to the Area Plan Commission and testified at trial as to its contents.

Prior to the adoption of Evansville City Ordinance, Sections 15.153.10.168(A) and 15.153.10.168(A) [sic] and 17.36.140(A) and 17.36.140(A) [sic] of the Vanderburgh County Code a flat fee of $100.00 was charged for a billboard erection permit and the government provided its own inspections of potential sites.

After the adoption of these amended Ordinances the charge became one dollar per square foot per side plus the advertiser was required to prepare and furnish surveys, site plans and other preparatory items which had been the obligation of the Government.7
Director Cunningham testified that the new fee structure resulted in a 600% increase in fees alone for one-sided billboards plus the significant additional cost for preparation to applicants.
* * *
Cunningham testified these fees had not been changed in several years and had not kept up with the cost of administering the zoning of billboards, especially the legal fees associated with defending court actions brought against the [APC] since the amendment of the Codes.
Cunningham testified that since the adoption of the new ordinances 80% of the APC's legal expenses were incurred due to questions related to billboards.
Before the adoption of the current ordinance the Government was not involved in much litigation over billboards according to Beverly Behne, Zoning Administrator for the [APC].
The fee for a billboard permit is based on the size of the proposed sign. One dollar per square foot per side under the amended code for billboards is the only non-flat fee charged for any building permit.
No evidence was introduced at trial that there was any correlation or relationship between the size of a billboard and the Government's cost of regulating them. In fact, Cunningham testified that she had no documentation of her assertion that the larger the billboard the greater was the cost in staff time and or legal fees.
The "APC FEES FACT SHEET" (D4), indicates that the increase in the Government's cost of regulation was due... "[T]o the higher cost of technology we use to enter subdivision plats and other information into the computer, along with rising legal costs."
No increase was attributed to billboards or legal fees related thereto.

The Purpose of the Amended Code is set forth in § 17.27.10:

... "[T]o provide reasonable standards for off-premise advertising signs while discouraging their proliferation, disrepair, or garishness." (D1)
The evidence does not establish any nexus between the reasonable cost of regulating billboards and the method of assessing fees. In fact, the precipitous increase in fees for billboards appears to have no connection to the Government's cost of regulation but only to the discouragement of their erection.
II
CONCLUSIONS OF LAW
The APC's current fee structure for billboard permits is not reasonably related to the administrative cost of exercising regulatory power. It is a revenue tax and is being used for the purpose of discouraging billboards. This is impermissible.
City of Portage v. Harrington,
598 N.E.2d 634 (Ind.App.1992)

.

The Court must give great deference to the legislative bodies of Evansville and Vanderburgh County. The Court may not re-write legislation but must leave it to the elected and appointed public servants
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