Boone County Area Plan Com'n v. Kennedy

• Decision Date: 17 October 1990
• Docket Number: No. 12A04-9001-CV-6,12A04-9001-CV-6
• Parties: The BOONE COUNTY AREA PLAN COMMISSION, Jerry L. March, Executive Director, Boone County Area Plan Commission, Zionsville Plan Commission, and Town of Zionsville, Appellants (Defendants Below), v. Lawrence T. KENNEDY and Catherine H. Kennedy, Appellees (Plaintiffs Below).
• Court: Indiana Appellate Court

Page 692

560 N.E.2d 692

The BOONE COUNTY AREA PLAN COMMISSION, Jerry L. March Executive Director, Boone County Area Plan Commission, Zionsville Plan Commission and Town of Zionsville Appellants (Defendants Below), v. Lawrence T. KENNEDY and Catherine H. Kennedy, Appellees (Plaintiffs Below).

No. 12A04-9001-CV-6.

Court of Appeals of Indiana Fourth District.

Oct. 17, 1990.

Richard B. Porter, Lebanon, and Stephen C. Cline, Indianapolis, for appellants.

J. Murray Clark and Michael D. Keele, Clark, Quinn, Moses & Clark, Indianapolis, for appellees.

CONOVER, Judge.

Defendants-Appellants Boone County Area Plan Commission, Jerry L. March, Executive Director thereof, Zionsville Plan Commission, and Town of Zionsville (Planners) appeal the Clinton Circuit Court's summary judgment permitting Plaintiffs-Appellees Lawrence T. and Catherine H. Kennedy (Kennedys) to construct a private recreational skeet and trap range on their real estate as an accessory use thereto.

We affirm.

Restated, the issues presented by this appeal are:

1. whether the Kennedys may file suit for declaratory judgment without first exhausting the administrative remedies available to them in the Boone County Comprehensive Zoning Ordinance (Ordinance), and

2. whether there are genuine issues of material fact as to whether the proposed private skeet range is a permitted accessory use under the ordinance.

The Kennedys own two forty acre parcels of farmland in Boone County, one of which is contiguous to the town of Zionsville's western boundary and one of its residential neighborhoods. That parcel also may be the subject of future annexation. The Kennedys, proposing to build a private recreational skeet and shooting range (skeet range) on fifteen acres of the tract adjoining the town, had their representatives meet informally with the Commission's Executive Director, Jerry L. March (March), about their proposal. After considering it, March determined their proposed skeet range couldn't be built because it was a primary as opposed to an accessory use of that real estate under the ordinance. Later, March wrote a letter to the Kennedys stating that conclusion. They in turn filed suit for declaratory judgment without formally petitioning the commission for authority to construct that facility. Zionsville intervened, everyone filed motions for summary judgment, the town alternatively filed a motion to dismiss, and the trial court granted the Kennedys' motion.

The Planners appeal.

Initially, the Kennedys argue we are to review this cause for abuse of discretion only. They are incorrect. This appeal involves the review by this court of the grant of a motion for summary judgment. In such case, we review under the same standards as the trial court. Ayers v. Indian Heights Volunteer Fire Dept., Inc. (1986), Ind., 493 N.E.2d 1229. When reviewing the grant or denial of a motion for summary judgment, we stand in the shoes of the trial court, employing the same standard it did, namely, whether there exists any genuine issue of material fact and whether the law was correctly applied. First Savings & Loan Ass'n. of Central Indiana v. Treaster (1986), Ind.App., 490 N.E.2d 1149; Hamblen v. Danners, Inc. (1985), Ind.App., 478 N.E.2d 926.

The Planners first argue the Kennedys have made no attempt to avail themselves of the administrative remedies provided in the ordinance. Without first exhausting those remedies, Planners posit, the Kennedys may not resort to the courts for relief, citing IND.CODE 36-7-4-918.1. It states in part:

A board of zoning appeals shall hear and determine appeals from and review:

(1) any order, requirement, decision, or determination made by an administrative official, ... or staff member under the zoning ordinance; ...

Director March's February 22, 1989, letter to the Kennedys constitutes an appealable "decision or determination" under that statute, they urge, because it states:

Building permits for such a use (outdoor shooting range) on Mr. Kennedy's property will not be issued from this office until such time as appropriate zoning approvals have been granted by the Boone County Area Plan Commission or Area Board of Zoning Appeals.

The Kennedys must have sought review of March's decision by the Board of Zoning Appeals (BZA) before they may resort directly to the courts, the Planners insist. In support of this argument, they cite Children's Home of Southeastern Indiana, Inc. v. Area Planning Commission of Franklin County (1985), Ind.App., 486 N.E.2d 1048; Laws v. Lee (1984), Ind.App., 471 N.E.2d 1229; and Board of Zoning Appeals of the City of Mishawaka v. LaDow (1958), 238 Ind. 673, 153 N.E.2d 599. However, they also recognize there are exceptions to this rule, citing Metropolitan Development Commission of Marion County v. I. Ching, Inc. (1984), Ind.App., 460 N.E.2d 1236.

Conversely, the Kennedys first argue their proposed skeet range is a permitted accessory use to the dwelling house located on that real estate under Section 3.3(B) of the Ordinance, and no improvement location permit is required to build the trap houses which are a part of that proposed use. In the alternative, the Kennedys claim there was no need to exhaust administrative remedies because the Planners through their agent, Executive Director March, had already considered their proposed use and determined it was not a permitted accessory use but rather was a primary use of the property and prohibited on their real estate because it was zoned R-1. Because of March's demonstrated inclination not to issue an improvement location permit for such purpose, administrative relief would not be forthcoming at any level and its pursuit through the administrative hierarchy would be futile and senseless, they insist. That being the case, the Kennedys had an alternative at that time, as they viewed it: they could either build their proposed facility and defend a zoning enforcement suit or take the initiative and file suit for declaratory judgment. The latter was the most expeditious and economic route open to them at that time, and they correctly chose it, they earnestly contend.

Where an administrative remedy is provided, it must be exhausted before judicial review may be requested. No one is entitled to judicial relief for an alleged or threatened injury until the prescribed administrative remedy has been exhausted. Board of School Comm'rs, etc. v. Eakin (1983), Ind., 444 N.E.2d 1197, 1201; City of East Chicago, Ind. v. Sinclair Refining Co. (1953), 232 Ind. 295, 111 N.E.2d 459, 464. However, where there are no administrative channels capable of answering the question presented, direct resort to the courts for judicial review of that question may be taken. DPW v. Chair Lance Service, Inc. (1988), Ind., 523 N.E.2d 1373, 1378-1379 [where an administrative appeal is not available under the Indiana Department of Public Welfare regulations on the propriety of pre-judgment interest and attorney fees, direct judicial review of those questions is appropriate].

This case turns on whether the Kennedys' proposed skeet range is a...