Burrell v. Lake County Plan Com'n, 45A05-9209-CV-339

Docket NºNo. 45A05-9209-CV-339
Citation624 N.E.2d 526
Case DateDecember 07, 1993
CourtCourt of Appeals of Indiana

Page 526

624 N.E.2d 526
Donald BURRELL and Alice Burrell, Appellants-Plaintiffs,
Jason L. Horn, Frederick N. Fedorchak, M.D., Jerry Aliee,
G.W. Molenar, Joseph E. Yahner, Donna Gruszcyk and Rowland
A. Fabian, Appellees-Defendants.
No. 45A05-9209-CV-339.
Court of Appeals of Indiana,
Fifth District.
Dec. 7, 1993.
Transfer Denied March 8, 1994.

Page 528

Fred M. Cuppy, Burke Murphy Costanza & Cuppy, Merrillville, for appellants-plaintiffs.

Thomas K. Parry, Crown Point, for appellees-defendants.

SHARPNACK, Chief Judge.

This case concerns the denial of approval by the Lake County Plan Commission (Commission) to the preliminary subdivision plan submitted by Donald and Alice Burrell. The Burrells petitioned the trial court for a writ of certiorari to reverse the denial of plan approval and the trial court, after remanding for findings of fact by the Commission, denied relief and affirmed the Commission action. The Burrells now ask us to reverse the trial court and the Commission. We affirm.

The Burrells present three issues for our review, which we renumber and rephrase as:

1. Whether the ordinance provision requiring denial of preliminary plan approval "where a proposed subdivision would adversely affect the health, safety, and general welfare of the County" is a permissible standard;

2. whether the Commission's findings are supported by substantial evidence; and

3. whether the Commission was estopped to deny preliminary plan approval on the basis of adverse effect to the "health, safety, and general welfare" of the community because the Burrells already had received tentative plan approval under that same standard.

In 1990, the Burrells filed an application with the Commission for subdivision approval of Rainbow Estates, a residential subdivision to be developed on their property in Lake County, Indiana. The Commission granted tentative approval for the subdivision. After various deferrals and revisions of the subject development plans, a public hearing on the Burrells' application for preliminary plan approval was held during the Commission's regular meeting of February 5, 1991. The Burrells' application was denied, consistent with the requirements of the applicable ordinance, based on the Commission's conclusion that the subdivision would have an adverse effect on the health, safety, and general welfare of the community. The Commission made no findings of fact in support of its conclusion.

The Burrells filed a verified petition for writ of certiorari challenging the Commission's determination. The trial court held that the standard applied by the Commission was legally sufficient and remanded the case to the Commission for entry of findings of fact in support of its determination. Pursuant to the court's order, the Commission issued its findings of fact and submitted the findings to the trial court. The Burrells then filed a motion to reverse the denial of their request for preliminary plan approval. The trial court denied the motion, and the Burrells appeal from this adverse ruling.

The first issue raised by the Burrells is whether the ordinance provision upon which the Commission based its denial of preliminary plan approval is a permissible standard. The Burrells contend that the section of the Lake County Subdivision Ordinance Regulations (the Ordinance) directing the Commission to deny preliminary plan approval if "the proposal does not comply with the requirements of this Ordinance or other ordinances of Lake County, or where a proposed subdivision would adversely affect the health, safety, or general welfare of the County," [Ordinance Sec. IV(B) (Record, p. 409(a) (emphasis added)) ], is so vague and uncertain as to be unconstitutional and that it represents an illegal delegation of legislative authority because it purports to give the Commission unlimited discretion. 1

Page 529

Although it is true that in order to be valid an ordinance must be "precise, definite, and certain in expression," it is equally true that the courts of this state will not construe an ordinance so as to defeat its purposes "if it is sufficiently definite to be understood with reasonable certainty." Carpenter v. Whitley County Plan Commission (1977), 174 Ind.App. 412, 419, 367 N.E.2d 1156, 1161 (quoting Fred Geiger & Sons v. Schmitt (1917), 186 Ind. 292, 294, 116 N.E. 50, 51). It is well settled that we are to apply the rules of statutory construction when construing an ordinance. Id. Accordingly, when construing the words and phrases in a particular section, we construe them together with the other words and phrases in that section, as well as with the statute as a whole. Id. Ordinances should be interpreted so as to uphold their validity whenever possible. Id.

The Burrells correctly note that there are established limitations on the discretionary power of local planning commissions:

"Cities and towns have been granted broad authority by the state ... to control the development of areas in and adjacent to them. However, public policy requires that this authority be exercised in a standardized and clearly defined manner.... [A]lthough public policy requires municipal control of such development, nevertheless the authority of a town to deny a landowner the right to develop his property by refusing to approve the plat of such development is by statute made to rest upon specific standards of a statute or implementing ordinance. Thereafter the approval or disapproval of the plat on the basis of the controlling standards is a ministerial act."

Knutson v. State ex rel. Seberger (1959), 239 Ind. 656, 659, 157 N.E.2d 469, 471 (footnotes omitted), reh'g denied, 239 Ind. 656, 160 N.E.2d 200. The Burrells argue that the "health, safety, and general welfare" standard does not meet this certainty requirement. 2

In support of their position, the Burrells cite several cases standing for the proposition that once a petitioner has established compliance with the specific standards of the statute or implementing ordinance, approval of a plat is a ministerial act--a plan commission has no discretion to approve some plats and disapprove others. 3 These

Page 530

cases, however, do not resolve the present issue. In this case, the Ordinance specifically requires the Commission to reject the application for preliminary plan approval when the proposal is not in compliance with the applicable ordinances or where the proposed subdivision would have an adverse effect on health, safety, or general welfare. Most importantly, this health, safety, and general welfare language does not stand alone. Another section of the Ordinance instructs the Commission and property owners alike on the sorts of adverse effects that would properly serve as a basis for denial:

"1. Suitability of Land. No land shall be subdivided which is unsuitable for subdivision by reason of flooding, collection of ground water, bad drainage, adverse earth or rock formation or topography, or any feature likely to be harmful to the health, safety, or welfare of the future residents of the subdivision or of the community. Such lands shall not be considered for subdivision until such time as the conditions causing the unsuitability are corrected."

Ordinance Sec. V(B)(1) (Record, p. 413). Accordingly, we believe that the Ordinance provides ample notice to landowners of those conditions that will be evaluated by the Commission. Although the Commission did not cite Sec. V(B)(1) specifically in its findings, its rejection of the Burrells' plan was clearly based on conditions listed in that section: flooding, bad drainage, and risks of leaching and biological contamination due to the presence of adverse soils, i.e., adverse "earth."

The Burrells argue that this court's holding in Tippecanoe County Area Plan Commission v. Sheffield Developers, Inc. (1979), 181 Ind.App. 586, 394 N.E.2d 176, trans. denied, requires that we declare the Ordinance constitutionally infirm for lack of specific and concrete standards. In Sheffield Developers, at issue was whether a section in a county subdivision control ordinance contained sufficiently specific and concrete standards so as to give fair warning as to what the local plan commission would consider when reviewing a preliminary plat. The section at issue was so vague that the court wrote "we are completely unable to glean from Sec. 1.1 any specific or concrete standards by which a proposed plat may be judged." 181 Ind.App. at 602, 394 N.E.2d at 186. 4 Unlike the provision at issue in Sheffield Developers, however, the Ordinance in this case does provide notice of the factors the Commission will consider when reviewing an application for preliminary subdivision plan approval. 5

Page 531

In Busse v. City of Madison (1993), 177 Wis.2d 808, 503 N.W.2d 340, review denied, the Court of Appeals of Wisconsin was called upon to determine if a section in a local subdivision ordinance was impermissibly vague. The section before the court in that case was very similar to Sec. V(B)(1). It provided:

" 'No land shall be subdivided which is ... unsuitable for use by reason of flooding, bad drainage, soil or rock formations with severe limitations for development, severe erosion potential, or unfavorable topography, or any other feature likely to be harmful to health, safety or welfare of future residents or landowners in the proposed subdivision or of the community.' "

Busse, 503 N.W.2d at 342 (quoting Madison, Wisconsin General Ordinance Sec. 16.23(3)(a)3). The court held that the language was sufficiently specific, and that denial of a subdivider's revised preliminary plat under that section was not arbitrary, unreasonable, or discriminatory. Id. at 344. We reach the same conclusion. The rule set forth in Sheffield Developers is that "[a] standard must be written with sufficient precision to give fair warning as to what the Commission will consider in making its decision." Sheffield...

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