City of Crown Point v. Misty Woods Properties, LLC, 45A03-0511-CV-560.

Citation864 N.E.2d 1069
Decision Date18 April 2007
Docket NumberNo. 45A03-0511-CV-560.,45A03-0511-CV-560.
PartiesCITY OF CROWN POINT, Appellant-Defendant, v. MISTY WOODS PROPERTIES, LLC, Appellee-Plaintiff.
CourtCourt of Appeals of Indiana
864 N.E.2d 1069
CITY OF CROWN POINT, Appellant-Defendant,
No. 45A03-0511-CV-560.
Court of Appeals of Indiana.
April 18, 2007.

[864 N.E.2d 1071]

Matthew L. Hinkle, Elizabeth I. Van Tassel, Coots, Henke & Wheeler, P.C., Carmel, IN, Attorneys for Appellant.

Michael L. Muenich, Michael L. Muenich, P.C., Highland, IN, Attorney for Appellee.

Robert W. Eherenman, Haller & Colvin, P.C., Attorney for Amici Curiae: Indiana Association of Cities and Towns and Indiana Municipal Lawyers Association.


ROBB, Judge.

Case Summary and Issues

Misty Woods Properties, LLC ("Misty Woods") filed a Rezoning Petition requesting that certain parcels of land in Crown Point, Indiana (the "City"), be rezoned from agricultural ("A-1") to residential ("R-1" and "R-2"). After a public hearing, the Crown Point Plan Commission sent an advisory recommendation of the Rezoning Petition to the Crown Point Common Council. The Council approved an amended ordinance rezoning all the real estate to R-1. Misty Woods thereafter filed an application for a variance with the Crown Point Board of Zoning Appeals ("BZA") seeking a reduction in the required lot frontage and area for subdivided parcels of the land. The BZA voted to deny the variance. Misty Woods then filed a complaint against the City because of its decisions in these matters. Both parties filed motions for summary judgment, and after a hearing, the trial court granted

864 N.E.2d 1072

Misty Woods' motion for partial summary judgment, finding that the amended ordinance allowing only the R-1 rezone was void and ordering that the proposed ordinance with both R-1 and R-2 rezoning take effect by operation of law. Moreover, the trial court denied the City's motion for summary judgment as to all counts. The City now appeals, raising several issues that we consolidate and restate as two: whether the trial court properly granted partial summary judgment to Misty Woods and whether the trial court properly denied the City's motion for summary judgment. Concluding that the trial court erred in denying the City's motion for summary judgment on all counts, we reverse.

Facts and Procedural History

On November 21, 2003, Misty Woods filed a Rezoning Petition with the City seeking to rezone approximately 100 acres of property from A-1 to R-1 and R-2. The land was in four parcels, and Misty Woods sought to rezone Parcels I and II as 101 R-1 lots and Parcels III and IV as 56 R-2 lots. R-1 and R-2 have the same permitted uses; however, R-2 has special uses that include duplexes. Thus, Misty Woods wanted the R-2 rezone so it could apply for a special use and build duplexes on Parcels III and IV. The minutes from the Plan Commission meeting on December 8, 2003, at which Misty Woods' petition was considered, show that the following took place:

Attorney James Wieser representing [Misty Woods' Petition], requesting rezoning A-1 to R-1 and R-2 at the above location.... [Commission member] Mrs. Retson stated there are too many duplexes being developed; however, has no problem with rezoning into R-1. Mr. Bremer conceded. Ms. Vellutini suggested to consider villas instead of duplexes. The petitioner advised there will be restrictive covenants to require residences to be owner-occupied.

* * *

Mr. Wirtz motioned to recommend to the City Council to rezone [per Misty Woods' Petition]. Ms. Vellutini seconded the motion. Motion passed by a unanimous roll call vote; with the exception of a nay vote by Mr. Bremer and Mrs. Retson.

Appellant's Appendix at 26.

Misty Woods' Rezoning Petition, subsequently named Ordinance No. 2004-01-01, was submitted to the Council at its meeting on February 2, 2004. The Council meeting minutes indicate:

. . . Jim Wieser, Attorney for this project trying to address concerns regarding this project and what will be acceptable by the council.... Member Bremer voted against this at the Plan Commission and plans to vote against it again in regard to the duplex lots are not appropriate for that area.... Member Drasga agrees with Paul Bremer based on his report from the planning commission. Member Corbin is thinking in terms of the return on what is being invested in utilities in terms of property tax dollars generated. This meeting is to approve a zone change and not to approve a plan and how this land is being used for the community. Member Condron stated that the product that the developers want to introduce is high quality . . . and would like more drafts done.... [City planner] stated the Kendra petition also proposing to do duplexes, which came with a recommendation for denial by the Plan Commission. Council shall take action within 90 days after Plan Commission recommendation. Member Condron suggested approving an R-1 at this council meeting. There was much discussion regarding this and Mr. Wieser is

864 N.E.2d 1073

willing to proceed in good faith and get some sense of what the council wants.

Member Drasga would go with the R-1 rezoning however, does not want to give the impression at sometime in the future we will automatically approve an R-2.... Per [City planner,] the options would be to amend from A-1 Agricultural to R-1 zoning single family subdivision. After further discussion a motion was made to amend zone change from A-1 to R-1 only and hold over for second reading. . . . Motion carried unanimously by voice vote.

Id. at 28. After public notice, Ordinance 2004-01-01 as amended was considered by the Council at its meeting on March 1, 2004:

This was originally deferred to the meeting of February 2, 2004 and at that time a motion was made to amend so that it would be all R-1. Attorney James Wieser for [Misty Woods] advised that they would not appear at this meeting but upon approval move forward with the Plan Commission. Motion was made by Member Farley to approve seconded by Member Corbin. Motion carried unanimously by voice vote....

Id. at 30. The ordinance, as amended so that the entire property was rezoned from A-1 to R-1, is shown as "passed and adopted" on March 1, 2004, and was signed by the City's Mayor on that same day. Id. at 33.

On July 8, 2004, Misty Woods filed an Application for Variance with the BZA, showing that the property was zoned R-1, and requesting a variance from eighty-foot lot frontage to sixty-foot lot frontage for single family residences and a reduction in required lot area from 10,000 to 7,800 square feet. The BZA denied the variance.

On November 24, 2004, Misty Woods filed a complaint against the City, seeking a declaratory judgment that the ordinance as requested by Misty Woods — that is, with rezoning to both R-1 and R-2 — be considered to have taken effect by operation of law because of the Council's failure to act on it within ninety days of the Plan Commission's recommendation on December 8, 2003; a declaratory judgment that the variance request be considered to have taken effect by operation of law because the BZA can only make recommendations to the Council and cannot itself grant or deny variances; and alleging that the City violated due process in its handling of Misty Woods' rezoning petition and variance request. The City filed its answer and asserted several affirmative defenses. Misty Woods then filed a motion for summary judgment, seeking entry of judgment in its favor on its claim that the rezoning petition took effect by operation of law and also seeking partial summary judgment on its due process claim against the Council for its actions with regard to the rezoning petition. The City responded and also filed its own motion for summary judgment, seeking entry of judgment in its favor on all counts. After a hearing, the trial court entered the following order:

Upon review of the memoranda, supporting documents and relevant case and statutory law, the Court now GRANTS Plaintiff's Motion for Partial Summary Judgment and DENIES Defendant's Counter Motion for Summary Judgment.

Plaintiff's Motion is granted because the Court finds that there is no genuine issue of material fact regarding Defendant's failure to act on Plaintiff's Rezoning Petition for more than ninety (90) days, thus Plaintiff is entitled to the remedy of constructive relief as provided by the legislature, i.e., their Ordinance takes effect as if it had been adopted as

864 N.E.2d 1074

certified. Therefore, the Amended Ordinance is void as a matter of law.

Further, the City's Counter Motion fails to meet its burden regarding its purported defenses of estoppel, waiver, immunity, or lack of the Tort Claim Notice as to the declaratory judgment action.

The Court feels any consideration of Plaintiff's 42 U.S.C. § 1983, or Due Process claims would be premature at this time as they only become relevant if the Amended Ordinance is not voided.

Id. at 14-15. The trial court, on Misty Woods' request, thereafter entered the following order directing entry of judgment:

The Court, having considered the request for entry of judgment under Indiana Trial Rule 54(B), hereby determines that there is no just reason for delay in the entry of judgment on Count I as determined by this Court's order ... and it is hereby directed that judgment be entered on Count I, as determined by such order. Counts II, III, and IV remain pending but further proceedings on these claims will be stayed pending the anticipated appeal of the judgment on Count I.

Id. at 16. The City then initiated this appeal.1

Discussion and Decision2
I. Summary Judgment Standard of Review

Our standard of review for a ruling on summary judgment is well-settled: summary judgment is appropriate "if the designated evidentiary matter shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Ind. Trial Rule 56(C).

Upon appeal, we are bound by the same standard as the trial court. We consider only those facts which were designated to the trial court at the summary judgment stage. We...

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