Carpenter v. Whitley County Plan Commission, 3-375A46

• Decision Date: 06 October 1977
• Docket Number: No. 3-375A46,3-375A46
• Citation: 174 Ind.App. 412,367 N.E.2d 1156
• Parties: Richard E. CARPENTER et al., Plaintiffs-Appellants, v. WHITLEY COUNTY PLAN COMMISSION, Walter Lehner, Whitley County Zoning Administrator, Richard J. & Jean Schaller, Real Estate Resources, Inc., Defendants-Appellees.
• Court: Indiana Appellate Court

Page 1156

367 N.E.2d 1156

174 Ind.App. 412

Richard E. CARPENTER et al., Plaintiffs-Appellants, v. WHITLEY COUNTY PLAN COMMISSION, Walter Lehner, Whitley County Zoning Administrator, Richard J. & Jean Schaller, Real Estate Resources, Inc. Defendants-Appellees.

No. 3-375A46.

Court of Appeals of Indiana, Third District.

Oct. 6, 1977.

William D. Swift, Robert H. Carpenter, Higgins & Swift, Fort Wayne, for plaintiffs-appellants.

John W. Whiteleather, Jr., Whiteleather & Whiteleather, James R. Fleck, Bloom, Bloom & Fleck, Columbia City, for defendants-appellees.

GARRARD, Judge.

This is an appeal from an order of the Whitley Circuit Court affirming on writ of certiorari the approval of a subdivision plat by the Whitley County Plan Commission (Commission).

Richard J. Schaller, Jean L. Schaller and Real Estate Resources, Inc. (Applicants) filed with the Commission an application for the approval of a preliminary plat for a proposed subdivision named Cherokee Heights. On March 21, 1973, the Commission, which consisted of nine members, voted on whether to grant tentative approval to the plat. A quorum of six members was present. Four members voted against tentative approval; two in favor. The Commission director was told to inform Applicants that the plat was not approved because the proposed subdivision would conflict with the surrounding agricultural land use.

Subsequently, Applicants submitted a different plat for the same property. This proposed subdivision was called Mini-Farms Estates and contained fewer and larger lots than the prior plat. On April 18, 1973, the Commission, with six members present, voted on tentative approval of the Mini-Farms Estate plat; four voted in favor of tentative approval and two against. Carpenter, et al. (Remonstrators) filed their remonstrances against the preliminary plat. On June 20, 1973, the Commission again considered whether to grant tentative approval to the preliminary plat. Eight members were present, four voted for approval and four for disapproval. After consultation with its counsel, the Commission determined that the tie vote was without legal effect. On July 18, 1973, with eight members present, six Commission members voted to grant tentative approval to the preliminary plat and two voted to disapprove it.

Following a public hearing, the Commission voted on August 29, 1973 in favor of approval of the preliminary plat by seven votes to one. A remonstrance to the final plat of Mini-Farms Estates was filed with the Commission on December 11, 1973. On January 16, 1974, the Commission, by a seven to one vote, approved the final plat.

Remonstrators argue that the Whitley Circuit Court erred in affirming the Commission because the Commission was precluded from further consideration of the application under the doctrine enunciated in Easley et al. v. Metropolitan Board of Zoning Appeals of Marion Co. (1974), Ind.App., 317 N.E.2d 185; Dellinger et al. v. Hagest et al. (1973), 157 Ind.App. 158, 299 N.E.2d 222; and Braughton et al. v. Metropolitan Board of Zoning Appeals of Marion Co. (1970), 146 Ind.App. 652, 257 N.E.2d 839. It is said that the Commission's votes on March 21, 1973, April 18, 1973 and June 20, 1973 were "denials" of the proposed plat within the meaning of Braughton. We disagree. ¹

Braughton, supra, succinctly states the rule as follows:

". . . (I)t may be said generally that a zoning board should not indiscriminately or repeatedly reconsider a determination denying a variance absent a change of conditions or circumstances. See Whittle v. Board of Zoning Appeals (1956), 211 Md. 36, 125 A.2d 41; St. Patrick's Church Corp. v. Daniels (1931), 113 Conn. 132, 154 A. 343. If it were otherwise there would be no finality to such proceedings. Torello v. Board of Zoning Appeals (1940), 127 Conn. 307, 16 A.2d 591." 146 Ind.App. 652, 658, 257 N.E.2d 839, 842.

It will be noted that the rationale of the Braughton doctrine arises from the quasi-judicial function served by boards of zoning appeals and plan commissions. The doctrine incorporates the policies of res judicata, i. e., that in the interest of economy, predictability, and repose of the parties, a matter which is finally determined should not be relitigated. See, Board of Zoning Appeals of City of Valparaiso v. Sink (1972), 153 Ind.App. 1, 285 N.E.2d 655. Cf. Annotation: 71 A.L.R.2d 1362, and Note, "Indiana Variance Proceedings and the Application of Res Judicata" 46 Ind.L.J. 286. ² However, for this rationale to preclude consideration of an application there must have been a prior and legally effective determination by a board of zoning appeals or plan commission.

IC 1971, 18-7-5-19 states:

"A majority of members qualified by this chapter (18-7-5-1 18-7-5-99) to vote, shall constitute a quorum. No action of the commission is official, however, unless authorized by a majority of the commission at a regular or properly called special meeting." (emphasis added)

It specifies the number of affirmative votes required for an "official" action by a plan commission. For the members of a plan commission to act under the grant of powers in IC 1971, 18-7-5-1, et seq., there must be compliance with the requirements of IC 1971, 18-7-5-19. See, Metropolitan Board of Zoning Appeals v. Froe Corp., et al. (1965), 137 Ind.App. 403, 209 N.E.2d 36.

IC 1971, 18-7-5-19 has not been previously construed by our courts. However, the statue was considered by Judge Hunter in a dissenting opinion in Ratner et al. v. City of Richmond (1965), 136 Ind.App. 578, 201 N.E.2d 49. ³ He observed "Thus the wording of the above quoted sections manifests a legislative intent that a majority of the members of the Commission must concur in any action in order that it be official. Contrariwise, if a majority of the members do not concur, then there can be no official action.

It may also be presumed that the Legislature was in possession of the knowledge that, absent a provision to the contrary, the common law rule is that approval of the majority of the members present, a quorum existing, is sufficient for binding official action. This is an elementary principal of the law of bodies politic. 4 McQuillin, Officers, Employees, Council Meetings, § 13.27, et seq., p. 478 (3d Ed. 1949). Therefore when the Legislature chose to employ the word 'however' as a word of qualification or reservation this could only have reference to the first sentence in the section, "A majority of the members shall constitute a quorum.' and thereby expressly qualified that sentence and its meaning.

" 'However' is defined:

'1. In whatever manner, way, or degree: by whatever means or to whatever extent used adversatively * * *

2. NEVERTHELESS, NOTWITHSTANDING, YET, STILL often used to indicate a reservation after something conceded or a decision after consideration of adverse points * * * '

Webster's Third New International Dictionary, Unabridged, p. 1097 (14th Ed. 1961).

It seems readily apparent that by the use of 'however ' the Legislature declared an alternative intention. The appellants in their brief asked the question 'what is the meaning of the sentence which the word "however" qualifies?' I agree with their statement that the idea of a quorum is that when the required number of persons are assembled as a body, the votes of a majority thereof are sufficient for a binding action. Hence it would seem that the Legislature in using the word 'however' intended that this sentence be qualified and a reservation made, and that it could not, in such usage, intend otherwise. It cannot be reasonably inferred that the import of the § 53-719, supra, is that a majority of a 'quorum' was intended as a condition precedent to official action when the word 'quorum' was not used, but instead the Legislature chose to use the word 'Commission'. The Commission is composed of eleven (11) members, therefore it should be logically concluded that eleven (11) members constitute the Commission.

In the purview of our Indiana statutes pertaining to zoning ordinances, amendments, modifications or changes thereto, it is indispensable that a majority of the members of a statutorily constituted full commission is necessary to constitute an official action by said Commission.

The clear import of § 53-719, supra, is that while a majority of the members shall constitute a quorum, nevertheless no action of the Commission is official unless authorized by a majority of the Commission, . . ."

136 Ind.App. 578, 591-3, 201 N.E.2d 49, 56-7.

We concur in this reasoning and adopt it as the holding of this case.

Judge Hunter, however, did not reach the specific issue before us: Where a quorum of a plan commission considers a plat application and a majority of the commission members neither approve nor disapprove, has the application been "denied" for purposes of the Braughton doctrine. We hold that it has not.

As said above, for the rationale of Braughton et al., supra, to be operative, there must have been a prior and legally effective determination of the same or a sufficiently similar application. Only the "official acts" of a plan commission are legally effective. There can be no "official act" without the concurrence of the majority of the members. Accordingly, where a majority has not approved or disapproved, the commission has not acted upon the application for purposes of the Braughton doctrine. Moreover, as pointed out by Applicants, to adopt a contrary rule would place upon persons seeking approval of a plat the risk of membership absence or abstention. Such a risk would be entirely unrelated to the merits of an application and, consequently, cannot be said to be consistent with an applicant's burden of persuasion.

Remonstrators have cited cases from other jurisdictions which have held that where a majority of the membership of a board fails to vote in favor of either granting or rejecting a proposition, the proposition is deemed denied. Cited are Albini v. Board of Appeals (1964), 41...