Ayers v. Porter County Plan Com'n

• Decision Date: 05 October 1989
• Docket Number: No. 64A04-8701-CV-22,64A04-8701-CV-22
• Citation: 544 N.E.2d 213
• Parties: Bruce AYERS, Jr., Judith N. Ayers, and People for Autistic Citizens, Inc., Appellants, v. PORTER COUNTY PLAN COMMISSION, Appellee.
• Court: Indiana Appellate Court

Page 213

544 N.E.2d 213

Bruce AYERS, Jr., Judith N. Ayers, and People for Autistic Citizens, Inc., Appellants, v. PORTER COUNTY PLAN COMMISSION, Appellee.

No. 64A04-8701-CV-22.

Court of Appeals of Indiana Fourth District.

Oct. 5, 1989.

Glenn J. Tabor, Thomas F. Macke, Blachly, Tabor, Bozik & Hartman, Valparaiso, Gregory S. Reising, Gary, for appellants.

David C. Appel, Valparaiso, amicus curiae.

Brian J. Hurley, Douglas, Douglas & Douglas, Valparaiso, for appellee.

MILLER, Judge.

Bruce Ayers, Jr., Judith Ayers and People for Autistic Citizens, Inc. [hereinafter referred to collectively as Group Home] appeal the trial court's January 13, 1987 order granting the Porter County Plan Commission's [Plan Commission] Petition for Permanent Injunction. After a summary judgment proceeding, the trial court granted an injunction to the Plan Commission enjoining Group Home from operating an adult group home in a single family residential area. The Plan Commission contended and the trial court agreed that, although the ordinance contained no special exception for group homes, it was "reasonable" to require Group Home to qualify for a general special exception under language requiring such exceptions for dormatories, nursing homes, sororities, fraternities and orphanages. Group Home insisted in the trial court and claims on appeal that group homes created under IND. CODE Secs. 16-13-21-1 to -18 are a permitted use in single family residential areas and are not required to seek and obtain permission under a special exception.

We agree that a group home licensed under I.C. Secs. 16-13-21-1 to -18, is a permitted use in a single family residential area and, where no special exception is provided in the ordinance, it may operate in such an area as long as it complies with the provisions of the ordinance pertaining to single family residences and with state law. We further observe that state law authorizes zoning authorities to adopt a special exception for licensed adult group homes,

but whether the exception's provisions must be only regulatory in nature and, when complied with, a permit must be issued or whether the provisions, as here, permit some discretion in granting a permit ¹ is a question we need not decide--as we find that there was no exception in the ordinance which applied to group homes.

FACTS ²

Bruce Ayers and Judith Ayers own a two-story home located in an unincorporated area of Porter County. The home is located on four acres of land in a district zoned Rural Residential [RR]. In May, 1986, the Ayers leased the property to People for Autistic Citizens, Inc. [PAC] for use as a residential facility for six adult male developmentally disabled individuals. PAC is a not-for-profit corporation licensed by the Community Residential Facilities Council of the State of Indiana to maintain a group home for six adults on the Ayers' property pursuant to Ind.Code Secs. 16-13-21-1 to -18.

In June, 1986, Plan Commission received a complaint which alleged PAC's operation of the home would violate the Zoning Ordinance. After two meetings between the parties, the Executive Secretary of the Plan Commission acknowledged a group home was permitted in the RR zone, but he claimed the facility should be analogized to a student dormitory, sorority or fraternity house, nursing home or orphanage. Such uses were permitted only if a special exception was obtained prior to occupancy. PAC did not apply for a special exception--instead it asserted no special exception was required under the Zoning Ordinance or, alternatively, Ind.Code Sec. 16-13-21-12, preempted the local authority's right to require a special exception for group homes.

On September 10, 1986, Plan Commission filed an action to enjoin the use of the property as a group home, alleging Group Home's failure to apply for a special exception was a violation of the Zoning Ordinance. The Group Home filed a Motion to Dismiss pursuant to Ind.Rules of Procedure, Trial Rule 12(B)(6), which alleged in pertinent part:

3. That I.C. 16-13-21-12 specifically allows said group homes in residential areas.

4. That despite the State Statute, the Plaintiffs seek to force the Defendants to seek a special exception when none is required.

5. That no cause of action exists which would allow a local government to subvert State Statute.

On December 1, 1986, the court--after considering matters outside the pleadings--entered an Order in which the court found that I.C. Sec. 16-13-21-12 was dispositive, and that the zoning ordinance contained no provision for group homes. The court also found it was not unreasonable for the Plan Commission to analogize the use to existing uses for which a special exception was required. The court then denied the injunction, but ordered Group Home to apply for a special exception within thirty days.

Group Home did not apply for a special exception. On January 13, 1987, Plan Commission petitioned the court for a permanent injunction. The court granted the petition on the same day and entered the following Order.

"The Court being duly advised in the premises and after reviewing plaintiff's Petition for Permanent Injunction now finds as follows:

1. The Court adopts its findings as stated in the Order dated December 1, 1986.

2. The Court further finds that defendants have not complied with the Order of December 1, 1986 and,

IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that the defendants be permanently enjoined from operating a group home at 723 N. 200 E. in Porter County, Indiana." ³

DECISION

Before reaching the substantive issue we must address some procedural issues. First, we note that the factual record in this case is virtually non-existent. The hearing on Group Home's motion to dismiss was not recorded and we ordered the trial court to certify and transmit a supplemental record pursuant to Ind.Rules of Procedure, Appellate Rule 7.2(A)(3)(c) and (C). This record revealed that Group Home stipulated paragraphs (1) through (7) ⁴ of Plan Commission's Amended Complaint were correct, and the trial court apparently took judicial notice of the Zoning Ordinance. ⁵ No other evidence was submitted.

Group Home claims its motion to dismiss was based solely on the issue of preemption and that the trial court erred in considering whether Group Home was required to seek a special exception under the Zoning Ordinance. Although an evidentiary hearing on the operation of the Group Home would have been more appropriate and would have facilitated our review, we will consider the substantive issue presented. ⁶ Plan Commission has not challenged the fact that Group Home is licensed as a residential facility under the provisions of I.C. Sec. 16-13-21-1, et seq. The trial court, in its findings, held that Group Home was licensed under such statute when it held that the provisions of I.C. Sec. 16-13-21-12 were "dispositive" of this case.

Exhaustion of Remedies

Plan Commission first claims the trial court could have properly entered summary judgment in its favor because Group Home failed to exhaust its administrative remedies. Plan Commission argues the proper procedure to appeal the decision of the Executive Secretary requiring Group Home to apply for a special exception, was an appeal to the Board of Zoning Appeals. ⁷ Generally, a party must exhaust its administrative remedies before seeking relief from the courts, even if the party seeks to raise the issue as a defense, Metropolitan Development Commission of Marion County v. I. Ching, Inc. (1984), Ind.App., 460 N.E.2d 1236. However, I. Ching, is distinguishable from this case. In I. Ching, the defendant converted a building used as a bowling alley and lounge into a night club with dining facilities. The zoning ordinance did not permit the property to be used as a cocktail lounge or night club exclusively. I. Ching did not apply for a variance. The Metropolitan Development Commission sought to enjoin I. Ching's use of the property as a night club. As an affirmative defense, I. Ching argued the zoning ordinance was unconstitutional as applied to its property. This court held that, because I. Ching failed to apply for a variance and did not challenge the constitutionality of the ordinance before the Board of Zoning Appeals it had failed to exhaust its administrative remedies and could not raise the constitutionality issue as a defense. In I. Ching there was no question the defendant's use of the property was not a permitted use under the zoning ordinance, and in the absence of a variance was in violation of the ordinance.

In this case, Group Home's use of the property is a permitted use. The issue is whether a special exception is required. To sustain an injunction, the Plan Commission had the burden of proving the contents of the ordinance and a violation thereof. Group Home did not raise an affirmative defense. Had the Plan Commission carried its burden, it would have been entitled to an injunction. Here, what would have happened had Group Home applied for an exception was wholly irrelevant to the issue before the court. If it was required to apply and did not, it could be enjoined. This was a question of law for the trial judge. DeSchamps v. Board of Zoning Appeals of the City of Kokomo (1961), 241 Ind. 615, 174 N.E.2d 581. Thus, Plan Commission's argument on this issue is without merit.

Statutory Preemption

Group Home argues that I.C. Secs. 16-13-21-1 to -18 preempts a local planning authority from requiring a group home to seek and obtain a special exception. We do not agree that the statute prohibits a local planning authority from requiring a group home to obtain a special exception. At the time this case was filed, I.C. Sec. 16-13-21-12 ⁸ read as follows:

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...