Board of Com'rs of Howard County v. Kokomo City Plan Commission

• Decision Date: 20 May 1974
• Docket Number: No. 2-473A88,2-473A88
• Citation: 310 N.E.2d 877
• Parties: BOARD OF COMMISSIONERS OF the COUNTY OF HOWARD, Indiana, Plaintiff-Appellant, v. KOKOMO CITY PLAN COMMISSION, Defendant-Appellee.
• Court: Indiana Appellate Court

Page 877

310 N.E.2d 877

BOARD OF COMMISSIONERS OF the COUNTY OF HOWARD, Indiana Plaintiff-Appellant, v. KOKOMO CITY PLAN COMMISSION, Defendant-Appellee.

No. 2-473A88.

Court of Appeals of Indiana, Second District.

May 20, 1974.

Rehearing Denied July 23, 1974.

Opinion Superseded 330 N.E.2d 92.

Daniel J. Gamble, Fred G. Osborn, Kokomo, Baker & Daniels, Karl J. Stipher, Robert J. Bremer, Indianapolis, for plaintiff-appellant.

Kenneth L. Andrews, Andrews & Dechert, Robert S. Whitehead, Whitehead & Newell, Kokomo, for defendant-appellee.

SULLIVAN, Presiding Judge.

This appeal by the Howard County Board of Commissioners (County) involves the constitutionality of a proviso of IC 1971, 18-7-5-34, Ind.Ann.Stat. § 53-734 (Burns 1973 Supp.) which authorizes a city in counties of less than 84,000 population to exercise land use planning jurisdiction over unincorporated areas within two miles of the corporate limits of the city without consent of the county commissioners. ¹ Such consent is required in counties over 84,000 in population if such county has a county plan commission operating under a county master plan and ordinance covering the unincorporated areas of the county. Howard County, having a population of less than 84,000, has a County Plan Commission so acting. The entire section in question is as follows:

"Adoption of master plan by city plan commission for limited area outside--Filing of limits of area with county recorder--Effect of master county plan.--A city plan commission shall adopt a master plan for the development of the city and of such contiguous unincorporated area outside the corporate limits of the city as, in the judgment of the commission, bears reasonable relation to the development of the city as it shall designate. Except as limited by the political subdivision boundaries of other cities or states, or by the boundaries of unincorporated areas subject to the jurisdiction of other city plan commissions, such designated contiguous unincorporated area may include all or any part of the area within two (2) miles from the corporate limits of the city, and, in the event that the corporate limits of the city or the boundaries of such contiguous unincorporated area within two (2) miles from the corporate limits of the city shall include any part of the public waters or shore line of any lake which lies wholly within the state of Indiana, may also include all or any part of the public waters and shore line of such lake, together with all or any part of an area within two thousand five hundred (2,500) feet from said shore line.

Before exercising the rights, powers and duties conferred upon it by this chapter (§§ 53-701--53-795 [IC 1971, 18-7-5-1 to 18-7-5-99] with respect to such designated contiguous unincorporated area, a city plan commission shall file a description or map defining the limits of such designated contiguous unincorporated area with the county recorder of the county in which the city is located, and, as such designated contiguous unincorporated area may be altered from time to time, shall file with such county recorder a revised description or map defining the limits thereof. In the event that any part of the contiguous unincorporated area within the potential jurisdiction of any city plan commission shall be within the potential jurisdiction of any other city plan commission, such city plan commission may exercise territorial jurisdiction over such proportion of the area within the potential jurisdiction of both city plan commissions, as the area within the corporate limits of such city bears to the total area within the corporate limits of both cities, and within such boundaries, in accordance with the foregoing and inclosing an area reasonably compact and regular in shape, as the city plan commission first acting shall designate.

In the event that the county in which any city is located shall now or hereafter have established a county plan commission and such county plan commission shall have prepared, and the board of county commissioners of such county shall have adopted, in accordance with and as provided in this chapter, a master plan and ordinance covering the unincorporated areas of such county, the city plan commission of such city may exercise territorial jurisdiction over the area within the corporate limits of such city only: Provided however, That any city included within this section may continue or establish jurisdiction of the contiguous unincorporated area as described in this section if authorized by ordinance of the board of county commissioners. Such ordinance may be initiated by petition duly signed and presented to the county auditor by: (1) not less than fifty (50) property owners residing in the area involved in the petition; or

(2) The county plan commission; or

(3) The city plan commission; or by action of the board of county commissioners. Prior to final action on the ordinance by the board of county commissioners, the county plan commission shall hold an advertised public hearing as required for other actions of the commission under this chapter. Upon the passage of the ordinance by the board of county commissioners and the subsequent acceptance of jurisdiction by the city plan commission, the city plan commission shall exercise the same rights, powers and duties conferred elsewhere in this section exclusively with respect to such contiguous unincorporated area. The jurisdiction of a city plan commission as authorized above may be terminated by ordinance at the discretion of the board of county commissioners, but only if the county has adopted a master plan for such area which is as comprehensive in scope and subject-matter as that in effect by city ordinance: Provided further, That any city located in a county with a population of less than 84,000 according to the last decennial census may, at any time, after filing notice with the county recorder and with the county plan commission (which plan commission shall have adopted in accordance with this chapter, a master plan and ordinance covering the unincorporated areas of such county), exercise or reject territorial jurisdiction over all or part of the area within two (2) miles of the corporate limits of such city and within the county in which it is located, whether or not such city plan commission has exercised such jurisdiction at any previous time. Within sixty (60) days after receipt of such notice, said county plan commission and the board of county commissioners shall cause the county master plan and ordinance to be revised to reflect such decision of the city plan commission exercising the option provided for in this proviso."

It is the desire of the appellant to have the proviso which is applicable to counties of less than 84,000 population interpreted so as to require the consent of Board of County Commissioners. They do so in light of the well established principle which calls for a constitutional construction and application of a statute if at all possible. To engraft upon the proviso under consideration, the condition advocated by appellant, however, is to totally emasculate that proviso and to subvert the obvious intent of the Legislature. We must, therefore, necessarily construe appellant's argument as a head-on challenge to the constitutionality of the proviso.

We are not here called upon to divine legislative intent. That intent is made patently clear by the legislative history of the proviso. Prior to enactment of Public Law 271 by the 1971 General Assembly, cities could establish extra-territorial jurisdiction only "if authorized by ordinance of the board of county commissioners." The 1971 amendment permitted cities to exercise extra-territorial planning jurisdiction in all counties in which there was no county plan commission and in counties of less than 84,000 whether or not there was such a county plan commission operating under a master plan and zoning-ordinance but in all such instances, the consent of the board of county commissioners was still required. In 1972, by Public Law 141, the General Assembly placed the provision in its present language. This chronology leads to the inescapable conclusion that the legislature consciously and specifically intended to permit the exercise of extra-territorial planning and zoning jurisdiction in all counties of less than 84,000 population whether or not the county board of commissioners approved. Our sole concern is then with the constitutionality of that studied and intentional enactment of the General Assembly.

Appellant asserts that the provision denies equal protection of the laws in that it has its adverse application only to counties of less than 84,000 population. ² According to appellant upon appeal, therefore, it is a "local or special law" prohibited by Article 4 § 23 of the Indiana Constitution. ³

I

ARTICLE 4 SECTION 23

CONSTITUTIONALITY OF STATUTE IS PROPERLY BEFORE

COURT UPON APPEAL

By reason of the dissenting opinion of my colleague, it is deemed appropriate to make comment upon the sufficiency of appellant's Motion to Correct Errors with respect to preservation of the constitutional issue hereinafter treated.

Initially, it should be noted that plaintiff-appellant's complaint for injunction alleged that the statute in question violated the equal protection and due process clauses of the United States Constitution. More specifically, plaintiff-appellant asserted the statute:

"... discriminates between residents of Howard County as respects notice, public hearing, due process and equal protection as opposed to those citizens of the State of Indiana residing in counties of a population of excess of 84,000."

Thereafter, both parties produced extensive argument and counterargument of the equal protection issue in their memorandums in support of their respective motions for summary judgment. We note particularly the following specifics in appellee's argument before the trial court:

"In response to the Plaintiffs'...