City of Hammond v. Red Top Trucking Co., Inc., 3-578A101

• Decision Date: 26 August 1980
• Docket Number: No. 3-578A101,3-578A101
• Citation: 409 N.E.2d 655
• Parties: The CITY OF HAMMOND, a Municipal Corporation, and George Carlson, John Skurka, Ken Spurlock, Gerald Bobos, Edward Bragiel, John Parrish, Louis Karubas, Anthony Colantonio, Frank Mrvan, all as members of The Common Council of the City of Hammond, and George Sudicky, Thomas C. Conley, John R. Stanish, all as members of the Board of Public Works and Safety of the City of Hammond and Theodore L. Sendak, Attorney General of the State of Indiana, Appellants (Defendants), v. RED TOP TRUCKING COMPANY, INC., an Indiana Corporation, Appellee (Plaintiff).
• Court: Indiana Appellate Court

Page 655

409 N.E.2d 655

14 ERC 2052

The CITY OF HAMMOND, a Municipal Corporation, and George Carlson, John Skurka, Ken Spurlock, Gerald Bobos, Edward Bragiel, John Parrish, Louis Karubas, Anthony Colantonio Frank Mrvan, all as members of The Common Council of the City of Hammond, and George Sudicky, Thomas C. Conley, John R. Stanish, all as members of the Board of Public Works and Safety of the City of Hammond and Theodore L. Sendak Attorney General of the State of Indiana, Appellants (Defendants), v. RED TOP TRUCKING COMPANY, INC., an Indiana Corporation Appellee (Plaintiff).

No. 3-578A101.

Court of Appeals of Indiana, Fourth District.

Aug. 26, 1980.

C. Jerome Smith, Smith & Funk, Hammond, for appellants.

William J. O'Connor and David W. Weigle, O'Connor & Weigle, Hammond, for appellee.

YOUNG, Presiding Judge.

Appellee Red Top Trucking Co. challenged the validity of Hammond ordinances no. 3089 and no. 4137. The trial court held, inter alia, that all of the first ordinance and a portion of the second were unconstitutional. We affirm.

On July 1, 1975, Red Top applied to the City of Hammond for a permit to excavate sand. Shell Oil Co. owned the land in question. At the time material to this lawsuit Red Top was negotiating to buy the land. Red Top did not want to complete the purchase without having secured the desired permit. Excavation was an appropriate use of this land under the city's zoning ordinances.

The Hammond Municipal Code required the Board of Public Works and Safety to pass upon Red Top's application. The board approved the application July 15, 1975, and issued the permit on August 4.

Ordinance no. 3089 of the Hammond Municipal Code required the ratification of the Hammond Common Council in order for the permit to be effective. The council considered the application on August 11 and 25. The council refused to ratify the permit at the latter meeting. The minutes of these meetings disclose that this decision resulted from the protests of certain local political candidates and other citizens opposed to Red Top's application.

On October 14, 1975, the city council passed ordinance no. 4137. This action tightened the requirements for an excavation permit. Section 2(B) of the new ordinance required the proposed excavation to be three miles distant "from the nearest residential district so as not to be unduly detrimental to the safety, health or general welfare of the public." Section 3 provided that a permit would require ratification by the council. (The trial court ultimately found these two sections unconstitutional.)

Red Top filed this action December 5, 1975. Its complaint, as subsequently amended, prayed that the court declare ordinance no. 3089 and sections 2(B) and 3 of no. 4137 unconstitutional, that the court mandate the council to grant the permit, and that the court grant all other appropriate relief.

Completing the cycle of events, the Board of Public Works and Safety revoked Red Top's permit, which had never been approved by the city council, on March 18, 1976. The board's minutes disclose that this was based on (1) Red Top's lack of interest in the realty, (2) the three-mile requirement of ordinance no. 4137, and (3) that the original permit had otherwise been illegally issued, etc.

The first issue is one of standing. The city challenges the trial court's conclusion that Red Top had standing to apply for the permit. The city claims there was no standing because Red Top had no interest in the realty. The parties stipulated that in fact Red Top had no interest. Red Top's only connection with the realty was that it was negotiating to buy the land.

We resolve this question against the city for several reasons. In the first place the record justifies a conclusion that the city never had as a requirement for a permit that an applicant have an interest in the realty. The relevant ordinance was completely silent as to interest in the realty. Indeed the ordinance was reasonably subject to a contrary reading, namely, that an interest in the realty was not a prerequisite for securing a permit. This is because the ordinance utilized the unrestricted word "person" to designate those individuals who could seek a permit: "No person shall excavate sand, fill, gravel or other earth substance for commercial purposes from any property within the city, unless such person shall have secured a permit from the board of public works and safety . . . ."

Second, if interest in the realty is, as the city now claims, a criterion of great importance, why did not the city find out that information before the board granted the permit? That the city now attaches so great importance to an interest in the realty, when the city ignored the matter initially, justifies a conclusion that the city's standing requirement was non-existent and was conceived belatedly.

Third, the city cites no case law which requires an interest in the realty in order to receive an excavation permit. The case law it relies upon does not concern excavation permits.

Finally, the Supreme Court in Insurance Comm'rs v. Mutual Medical Ins., Inc., (1968) 251 Ind. 296, 241 N.E.2d 56, 59-60, held that the rules of standing then found in § 2-201 et seq. of Burns Ind.Stat.Ann. (1967 Repl.) applied to administrative agencies. This requirement of standing is now found in Trial Rule 17 of the Ind.Rules of Procedure. Under these rules of standing the case law has held that standing reposes upon the person entitled to the fruits of the action. John A. Boyd Motor Co. v. Claffey, (1929) 94 Ind.App. 492, 165 N.E. 255, 256; 2 W. Harvey, Indiana Practice 212 (1970). Red Top falls within this definition because it alone desired to carry out the excavation. Consequently Red Top had standing to apply for the permit.

The second issue also is one of standing. The city contends that Red Top did not have standing to bring this action for declaratory relief. We disagree.

In this action Red Top challenges, inter alia, the refusal of the common council to ratify its permit. It also challenges the board's subsequent revocation of its permit. Neither side to this appeal has pointed to any statutory means by which Red Top could gain access to the courts to seek judicial review of these matters. Nonetheless the Supreme Court has held that judicial review must be made available in circumstances such as these. Murphy v. Indiana Parole Bd., (1979) Ind., 397 N.E.2d 259, 261; State ex rel. State Bd. of Tax Comm'rs v. Marion Sup. Court, (1979) Ind., 392 N.E.2d 1161, 1165; City of Mishawaka v. Stewart, (1974) 261 Ind. 670, 310 N.E.2d 65, 67; State ex rel. Russel v. Michaw, (1971) 256 Ind. 459, 269 N.E.2d 533, 534; Prunk v. Indianapolis Redevelopment Comm'n, (1950) 228 Ind. 579, 93 N.E.2d 171, 173. "(A) litigant is entitled to judicial review of administrative action taken by a board, commission or governmental corporation, notwithstanding the failure of the Legislature to provide for a statutory remedy." Dortch v. Lugar, (1971) 255 Ind. 545, 266 N.E.2d 25, 47. The particular form of action utilized to obtain this judicial review may be a declaratory judgment. Mathis v. Cooperative Vendors, Inc., (1976) Ind.App., 354 N.E.2d 269, 274 (held, declaratory action is appropriate where no statutory provision for appeal exists). In light of this authority we hold that Red Top had standing to bring this action for declaratory relief.

For its third issue the city challenges the trial court's conclusion that section 2(B) of ordinance no. 4137 was unconstitutional. This provision banned excavation within three miles of a residential district. The trial court's ruling on this issue is as follows:

5. Section 2(B) of Ordinance Number 4137 enacted by the Common Council of the city of Hammond on October 14, 1975, and which became effective October 21, 1975, is unconstitutional and void on its face since said provision is an arbitrary and capricious standard having no reasonable relationship to the protection of the safety, health and general welfare of the community, has the practical effect of prohibiting the business of excavating within the City of Hammond, and deprives plaintiff of its right to engage in the business of excavating sand and other earth materials in the City of Hammond in violation of Article I, Sections 12 and 21, of the Indiana Constitution and the 5th and 14th Amendments to the United States Constitution.

Without doubt the city of Hammond may regulate excavations. This regulation is justified by the city's obligation to protect the public welfare. However regulation which is too harsh or which lacks justification may be struck down. "A legislative body cannot arbitrarily interfere with private business or impose unnecessary restrictions on lawful occupations under the guise of protecting public interests." Board of Zoning Appeals v. Koehler, (1963) 244 Ind. 504, 194 N.E.2d 49, 54-55. "The right of every individual under the Indiana Constitution to engage in any lawful business cannot be prohibited unless such prohibition is grounded upon some condition existing in the business which adversely affects the public health, morals, safety or welfare." Department of Ins. v. Motors Ins. Corp., (1956) 236 Ind. 1, 138 N.E.2d 157, 164. Whether this ordinance meets these criteria depends upon its reasonableness. Goldblatt v. Town of Hempstead, N. Y., (1962) 369 U.S. 590, 82 S.Ct. 987, 990, 8 L.Ed.2d 130; Stuck v. Town of Beech Grove, (1928) 201 Ind. 66, 163 N.E. 483, 487. In Goldblatt v. Town of Hempstead, N.Y. the Court said that the reasonableness of the particular ordinance there under consideration depended upon the nature of the menace the ordinance is designed to protect, the availability and effectiveness of less drastic steps, and the loss suffered by imposition of the ordinance. 82 S.Ct. 990. Similar criteria are appropriate in this case. Reasonableness is a question of evidence. See, e. g., Stuck v. Town of Beech Grove, supra, where the Supreme Court...