Bryant v. Lake County Trust Co.

• Citation: 334 N.E.2d 730,166 Ind.App. 92
• Parties: John BRYANT, Jr., et al., Appellants, v. LAKE COUNTY TRUST COMPANY, a corporation of Indiana, as Trustee under the Provisions of a Trust Agreement Dated
• Decision Date: 29 December 1970
• Court: Court of Appeals of Indiana

Page 730

334 N.E.2d 730

166 Ind.App. 92

John BRYANT, Jr., et al., Appellants, v. LAKE COUNTY TRUST COMPANY, a corporation of Indiana, as Trustee under the Provisions of a Trust Agreement Dated December 29, 1970, known as Trust No. 1653, et al., Appellees.

Nos. 472A213, 3--672A14.

Court of Appeals of Indiana, Third District.

Sept. 24, 1975.

Rehearing Denied Nov. 17, 1975.

Saul I. Ruman, Hammond, for appellants.

Kenneth D. Reed, Hammond, for appellee Lake County Trust Co. and Richard Klaas.

William J. Muha, Zandstra, Zandstra & Muha, Highland, for appellee Bd. of Commissioners of Lake County and Lake County Plan Commission.

Joseph L. Skozen, Munster, for Lake County.

HOFFMAN, Judge. ¹

This action consolidates for purposes of appeal two lawsuits arising out of a change in zoning classification of certain land located in Lake County, Indiana, which would permit the construction of a large mobile home park. Much of the factual background of these causes was ably summarized by Judge Allen Sharp speaking for this court in Bryant v. Lake County Trust Company (1972), Ind.App., 284 N.E.2d 537, at 538--539, a third lawsuit which concerned this same series of events:

'This controversy involves a challenge by nearby property owners to a proposed construction of a large mobile home park in the rural southern part of Lake County. The property on which the project will be built was purportedly rezoned under a Mobile Home Ordinance by an amendment to the zoning ordinance passed by the Board of County Commissioners. * * *.

'Appellants allege, inter alia, that they are owners of real property in the vicinity of the real estate in controversy and that they are adversely affected by the amendment to the zoning ordinance.

'The Lake County Trust Company is the title holder of record under a trust agreement. During January 1971 Richard Klaas, a developer and beneficial owner of the land, filed a request with the Plan Commission for various zoning changes, one of which was to rezone part of the property to PUD (Planned Unit Development), Class I. At the time of such request the County Zoning Ordinance did not provide for a classification PUD, Class I.

'Subsequent to the request, the Plan Commission gave notice of the hearing on the proposed rezoning of the property from A--1 agricultural to PUD, Class I. At the time of the notice, PUD, Class I was not used in any Lake County Ordinance. The classification only appeared in a proposed Mobile Home Ordinance, which at the time of the notice had not yet been adopted.

'On February 8, 1971, the Board of County Commissioners passed the Mobile Home Ordinance, which requires ten (10) days notice to be given the public prior to a Plan Commission hearing on an amendment. On the same day the Plan Commission considered the request on the proposed amendment which would rezone the property to PUD, Class I and recommended to the Board of County Commissioners that the amendment be adopted.

'At its regular meeting of May 10, 1971, the Board of County Commissioners considered the recommendation to amend the zoning ordinance. One of the commissioners moved for adoption, but his actual vote was not recorded and the other two commissioners voted against the proposed amendment.

'After the 30 day statutory period for appeal had expired with no further action having been taken by either side, the Lake County Trust Company brought an action in the Lake Superior Court in the case of Lake County Trust Co. v. The Board of Commissioners of Lake County, Cause Number 571--418, for a Declaratory Judgment, essentially arguing that in order to defeat a favorable recommendation of the Plan Commission, the Board of County Commissioners must unanimously vote against said recommendation. None of the Appellants, who were remonstrators against the amendment, were made parties to that action. On August 6, 1971, judgment was rendered in the Lake Superior Court declaring that the land had been rezoned as of the date when the Board failed to unanimously reject the Plan Commission's recommendation. On August 9, 1971, final approval was given the revised plans for the construction of the mobile home park by the Plan Commission.'

On September 8, 1971, appellants filed a complaint in the Lake Circuit Court (Cause No. C71--1384). As stated in Bryant v. Lake County Trust Company, supra, Ind.App., at 539 of 284 N.E.2d:

'The complaint was in two legal paragraphs, the first paragraph of which prayed for an injunction against the proposed construction and for a judgment declaring that the amendment to the zoning ordinance was illegal and void because of defective notice and because the amendment was defeated at the May 10, 1971, meeting of the Board of County Commissioners. Appellees filed in the trial court a Motion to Dismiss under Rule TR 12(B)(1), (2), (6) and (7). Said motion was granted by the trial court but it did not designate which ground or grounds constituted the basis for the dismissal.'

The judgment of dismissal entered by the trial court in Cause No. C71--1384 was reversed and remanded on June 29, 1972, in Appeal No. 272 A 103, by the opinion of this court therein being Bryant v. Lake County Trust Company, supra.

Previously, on October 7, 1971, appellants had filed a 'Complaint--Appeal from Board of County Commissioners' in the Lake Circuit Court (Cause No. C71--1560) seeking the following relief:

'1. Reversing and overruling the decision of the Board of County Commissioners to approve final plans for the mobile home park;

'2. Directing said defendant Board of County Commissioners to deny the petition of defendant Richard Klaas and/or defendant Lake County Trust Company;

'3. For all other proper relief including costs herein.'

Defendants Klaas and Lake County Trust Company filed a motion to dismiss such action, which was overruled by the trial court on October 26, 1971. Thereafter a special judge qualified and motions for summary judgment were filed by both sides.

On February 3, 1972, the trial court granted the motion for summary judgment of defendants-appellees Lake County Trust Company, et al. on the ground that it lacked subject-matter jurisdiction of the action. Plaintiffs-appellants timely filed their motion to correct errors directed to this grant of summary judgment, which motion was overruled by the trial court. Appellants then perfected Appeal No. 3--672 A 14 to this court.

Meanwhile, on October 8, 1971, appellants had also filed their motion for intervention and a motion for relief from judgment in Lake Superior Court in Cause No. 571--418, which was the declaratory judgment action described in Bryant v. Lake County Trust Company, supra. After a hearing on such motions, the trial court overruled them on October 28, 1971. Thereafter, appellants timely perfected Appeal No. 472 A 213 to this court questioning such action.

On August 4, 1972, an order was entered by this court consolidating appeal No. 3--672 A 14 with Appeal No. 472 A 213. Thus, the appeal presently before this court, No. 472 A 213, presents for appellate consideration issues raised from both Lake Superior Court Cause No. 571--418 and Lake Circuit Court Cause No. C71--1560. These separate causes will be referred to hereinafter as the declaratory judgment action and the appeal action, respectively.

As revealed by the prayer for relief quoted hereinabove, appellants sought a review in the appeal action of the approval by the Lake County Board of Commissioners (Board) of plans and specifications for Klaas' mobile home park. Such appeal was brought pursuant to IC 1971, 17--1--14--24 et seq. (Burns Code Ed.), which statutes provide for appeals to the Circuit Court of certain decisions of Boards of County Commissioners, when such appeals are taken within 30 days after the questioned decision.

The seemingly broad language of IC 1971, 17--1--14--24, supra, authorizing appeals from 'all decisions' of a Board of County Commissioners, has been consistently construed by our courts as authorizing only appeals from decisions of such Boards which are judicial in character. Board of Com'rs. of Dearborn County v. Droege (1946), 224 Ind. 446, 68 N.E.2d 650; Hyde v. Board of Commissioners of Wells County (1935), 209 Ind. 245, 198 N.E. 333; The Board of Commissioners of Vigo County v. Davis et al. (1894), 136 Ind. 503, 36 N.E. 141; Christy v. Board of County Com'rs of Porter County (1973), Ind.App., 295 N.E.2d 849. Thus, any act by such a Board which is administrative, ministerial, discretionary or legislative in nature is not reviewable under the authority of IC 1971, 17--1--14--24, supra. Board of Com'rs of Dearborn County v. Droege, supra; Bunnell v. The Board of Commissioners of White County et al. (1890), 124 Ind. 1, 24 N.E. 370; Sims v. The Board of Commissioners of Monroe County (1872), 39 Ind. 40; Christy v. Board of County Com'rs of Porter County, supra; Kraus v. Board, etc. (1907), 39 Ind.App. 624, 80 N.E. 544.

The particular act by appellee Board which appellants sought to have reviewed in the appeal action was its approval of the plans and specifications for the mobile home park as being in conformity with the requirements of a then recent amendment to the Lake County Mobile Home Ordinance. Such amendatory ordinance, which appears in the record before this court, includes provisions amending Title VI, § 19, of the Lake County Zoning Ordinance to provide for approval by the Board of residential mobile home park development plans. However, inasmuch as such approval by the Board is clearly not a judicial act, it must be concluded that no appeal of any decision by it approving or disapproving such a plan will lie under the provisions of IC 1971, 17--1--14--24, supra.

Furthermore, insofar as appellants attempted to raise in the appeal action the issue of the validity of an amendment to the Lake County Zoning Ordinance which rezoned Klaas' property, such issue was also an improper subject of such an appeal action. This is because the...