City of Bloomington Bd. of Zoning Appeals v. UJ-Eighty Corp.

Citation141 N.E.3d 869
Decision Date30 January 2020
Docket NumberCourt of Appeals Case No. 19A-PL-457
Parties CITY OF BLOOMINGTON BOARD OF ZONING APPEALS, Appellant, v. UJ-EIGHTY CORPORATION, Appellee.
CourtIndiana Appellate Court

Statement of the Case

[1] This appeal involves a city ordinance that was found unconstitutional as an unlawful delegation of governmental authority. Bloomington ("the City") enacted a Unified Development Ordinance ("the Ordinance") that contained the definition of a fraternity or sorority house and required students to be enrolled in Indiana University and sanctioned by the university, through whatever process the university chose, as members of a fraternity or sorority.

[2] In August 2016, UJ-Eighty Corporation ("UJ-Eighty"), the owner of real estate ("the Property") located in the City, entered into a lease with the Gamma-Kappa Chapter of Tau Kappa Epsilon ("TKE"). At the time, TKE was a sanctioned fraternity with Indiana University. In February 2018, the members of TKE were notified that they could no longer reside at the Property because the university no longer sanctioned TKE. Most of the residents moved out, but two individuals continued to reside at the Property.

[3] Following the loss of TKE's status as a sanctioned fraternity, the City determined that the Property no longer met the Ordinance definition of a "Fraternity/Sorority House" and issued two notices of violation ("NOV") to UJ-Eighty. UJ-Eighty appealed the issuance of the NOVs before the Bloomington Board of Zoning Appeals ("BZA"). The BZA affirmed the issuance of the NOVs. UJ-Eighty then sought judicial review of the BZA's decision. The trial court granted UJ-Eighty's petition, finding that the City had improperly delegated authority to Indiana University to determine whether the Property was being used by students in a sanctioned fraternity and that the Ordinance was unconstitutional under the Due Process Clause of the Fourteenth Amendment of the United States Constitution and Article 4, § 1 of the Indiana Constitution.

[4] On appeal, the BZA argues that the trial court erred by finding that the City, through the Ordinance, delegated zoning authority to Indiana University in contravention of federal and state constitutions. Concluding that the City improperly delegated authority to Indiana University in violation of the Due Process Clause of the Fourteenth Amendment, we affirm the trial court.1

[5] We affirm.

Issue

Whether the City, through the Ordinance, improperly delegated governmental authority in violation of the Due Process Clause of the Fourteenth Amendment of the United States Constitution.

Facts2

[6] In 2002, UJ-Eighty purchased real estate in Bloomington, Indiana. The Property consists of a house that is in an Institutional zoning district. The City permits twenty-six uses within Institutional zoning districts, of which the following are residential uses: (1) Fraternity/Sorority House; (2) Group Care Home for Developmentally Disabled; (3) Group Care Home for Mentally Ill; (4) Group/Residential Care Home; and (5) University or College. Bloomington Mun. Code § 20.02.500. Residential occupancy outside of the five uses is not permitted in an Institutional zoning district. At the time UJ-Eighty purchased the Property, a "Fraternity/Sorority House" was defined as follows:

A building or portion thereof used for sleeping accommodations, with or without accessory common rooms and cooking and eating facilities, for groups of unmarried students in attendance at an educational institution. Shall also include any building or portion thereof in which individual rooms or apartments are leased to individuals, but occupancy is limited to members of a specific fraternity or sorority, regardless of the ownership of the building or the means by which occupancy is so limited.

Bloomington Mun. Code § 20.02 (as adopted and effective May 1, 1995).

[7] Thereafter, in 2015, the Bloomington City Council amended the definition of "Fraternity/Sorority House" contained in the Ordinance at issue in this appeal to mean the following:

A building or portion thereof used for sleeping accommodations, with or without accessory common rooms and cooking and eating facilities, for groups of unmarried students who meet the following requirements: all students living in the building are enrolled at Indiana University, Bloomington Campus; and Indiana University has sanctioned or recognized the students living in the building as being members of a fraternity or sorority through whatever procedures Indiana University uses to render such a sanction or recognition . Shall also include a building or portion thereof in which individual rooms or apartments are leased to individuals, but occupancy is limited to members of a specific fraternity or sorority, regardless of the ownership of the building or the means by which occupancy is so limited, provided the two requirements noted in the first sentence of this definition are also met .

Bloomington Mun. Code § 20.11.020. (emphases added).

[8] In August 2016, UJ-Eighty leased the Property to TKE for a term from August 2016 through May 2019.3 In February 2018, the members of TKE were notified that they could no longer reside at the Property because Indiana University no longer recognized or sanctioned the local TKE chapter. With the assistance of Indiana University, most of the residents moved out and secured other housing. However, two individuals continued to reside at the Property.

[9] Thereafter, the City received information that the two individuals had not vacated the Property. The City mailed a NOV of the Ordinance to UJ-Eighty on February 22, 2018. This NOV alleged that the Property was being used by two individuals as a dwelling in an "Institutional zoning district which does not permit dwelling of any type, as per the Bloomington Municipal Code's Unified Development Ordinance (UDO) Section 20.02.500 Institutional Permitted Uses. As of February 18, 2018, [the Property] no longer meets the [Ordinance] definition of a ‘fraternity,’ a permitted use in Institutional zoning districts." (App. 15).

[10] Shortly thereafter, on February 28, 2018, the City mailed a second NOV to UJ-Eighty. The NOV made the same basic allegation of non-compliance of the Ordinance as stated in the first NOV. It also included the Ordinance definition of "Fraternity/Sorority House" and stated that two individuals had failed to vacate the Property, resulting in an "illegal land use." (App. 16).

[11] Both NOVs warned that a violation of this nature could result in a two thousand five hundred dollar ($2,500) fine. Further, the NOVs warned that each day a violation was allowed to continue would be considered a separate violation and that subsequent violations were twice the previous fine, up to a maximum daily fine of seven thousand five hundred dollars ($7,500). However, no fines were ever imposed.

[12] UJ-Eighty requested an administrative appeal of the City's issuance of the NOVs. The BZA held a hearing in May 2018. At the hearing, UJ-Eighty argued that the Ordinance allowed an unconstitutional delegation of power to Indiana University in violation of the 14th Amendment to the U.S. Constitution and Article 4, § 1 of the Indiana Constitution. When arguing against the unconstitutionality of the Ordinance, the City confirmed that its application and enforcement of the Ordinance was contingent upon Indiana University's determination. The City argued that the Ordinance meant that "once Indiana University no longer sanctioned or recognized the fraternity occupying the petitioner's location, the use ‘fraternity/sorority house’ could no longer be applied to use by those occupants." (App. 38). The City further asserted that "it is reasonable to define the term according to whether the university acknowledges that the occupants are a sanctioned fraternity/sorority." (App. 38). On June 13, 2018, the BZA affirmed the issuance of the NOVs and denied UJ-Eighty's appeal. UJ-Eighty then petitioned for judicial review of the BZA decision, raising the same constitutional arguments. The trial court granted the petition and entered its order in February 2019. It found that the City had unlawfully delegated governmental authority to Indiana University in violation of the Indiana Constitution and the U.S. Constitution. Specifically, the trial court found that the City's actions were:

contrary to law and violate[d] the Constitution of Indiana. As argued by [UJ-Eighty], Article 4[,] Section 1 of the Indiana Constitution delegates the legislative authority to the General Assembly and the General Assembly has delegated planning and zoning powers to municipalities and their respective plan commissions and boards of zoning appeals. The [City] has improperly delegated the authority to Indiana University to unilaterally define what constitutes a fraternity or sorority under the [City's] [Ordinance].
The court also finds ... that the [City's] actions also constitute an unlawful delegation of governmental authority in violation of the due process clause of the Fourteenth Amendment of the United States Constitution. As argued by [UJ-Eighty], the [City's] definition allows Indiana University to unilaterally determine how [UJ-Eighty] may use its property and both the [City] and [UJ-Eighty] are bound by that determination. The [City's] Ordinance does not provide a standard to control the University's decision, nor does it provide [UJ-Eighty] with a right to a review of the University's decision. Under the definition, the University can make the decision to recognize or sanction a fraternity under whatever procedures that it chooses, without restriction. This type of delegation of authority has been found to be unconstitutional as found by the Supreme Court of the United States in State of Washington ex rel. Seattle Trust Co. v. Roberge , 278 U.S. 116, 49 S.Ct. 50, 73 L.Ed. 210 (1928). More recently the Indiana Court of Appeals in Counceller v. City of Columbus Plan Comm'n , 42 N.E.3d
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3 cases
  • City of Bloomington Bd. of Zoning Appeals v. UJ-Eighty Corp.
    • United States
    • Supreme Court of Indiana
    • February 23, 2021
    ...by students in a sanctioned fraternity" with "no mechanism for reviewing [IU]’s decision." City of Bloomington Bd. of Zoning Appeals v. UJ-Eighty Corp. , 141 N.E.3d 869, 876 (Ind. Ct. App. 2020), vacated. The Ordinance's definition was "clearly arbitrary and unreasonable" because it "create......
  • In re Termination of Parent-Child Relationship of D.W.
    • United States
    • Court of Appeals of Indiana
    • October 28, 2020
    ...regardless of the fairness of the procedures used to implement them." City of Bloomington Bd. of Zoning Appeal v. UJ-Eighty Corp., 141 N.E.3d 869, 875 (Ind.Ct.App. 2020); see also G.B. v. Dearborn Cnty. Div. of Family & Children, 754 N.E.2d 1027, 1032-33 (Ind.Ct.App. 2001), trans. denied. I......
  • A.H. v. Ind. Dep't of Child Servs. (In re Termination of Parent-Child Relationship of D.W.)
    • United States
    • Court of Appeals of Indiana
    • October 28, 2020
    ...government actions regardless of the fairness of the procedures used to implement them." City of Bloomington Bd. of Zoning Appeal v. UJ-Eighty Corp., 141 N.E.3d 869, 875 (Ind.Ct. App. 2020); see also G.B. v. Dearborn Cnty. Div. of Family & Children, 754 N.E.2d 1027, 1032-33 (Ind. Ct. App. 2......
1 books & journal articles
  • A REIGN OF ERROR: PROPERTY RIGHTS AND STARE DECISIS.
    • United States
    • Washington University Law Review Vol. 99 No. 2, October 2021
    • October 1, 2021
    ...rev'd, 172 So. 2d 820 (Fla. 1965); Spies v. Bd. of Appeals, 169 N.E. 220, 221-22 (111. 1929); Bd. of Zoning Appeals v. UJ-Eighty Corp., 141 N.E.3d 869, 876 (Ind. Ct. App.), reh 'g denied, No. 19A-PL-457 (Ind. Ct. App. 2020); Thomas v. New Orleans Redevelopment Auth., 942 So. 2d 1163, 1169 (......

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