City of Seymour v. Onyx Paving Co., Inc.

• Decision Date: 31 July 1989
• Docket Number: No. 36A01-8805-CV-147,36A01-8805-CV-147
• Citation: 541 N.E.2d 951
• Parties: The CITY OF SEYMOUR, Indiana, Defendant-Appellant, v. ONYX PAVING COMPANY, INC., Plaintiff-Appellee.
• Court: Indiana Appellate Court

Page 951

541 N.E.2d 951

The CITY OF SEYMOUR, Indiana, Defendant-Appellant, v. ONYX PAVING COMPANY, INC., Plaintiff-Appellee.

No. 36A01-8805-CV-147.

Court of Appeals of Indiana First District.

July 31, 1989.

Rehearing Denied Sept. 28, 1989.

Jeffrey J. Lorenzo, Seymour, for defendant-appellant.

Edward A. Pollen, Joseph M. Black, Jr., Rothering, Lambring & Black, Seymour, for plaintiff-appellee.

BAKER, Judge.

STATEMENT OF THE CASE

Defendant-appellant, City of Seymour (Seymour), appeals both the granting of an injunction and an award of damages in favor of plaintiff-appellee, Onyx Paving Company (Onyx), in a consolidated action involving the construction of a bituminous asphalt batch plant.

We affirm in part, reverse in part, and remand with instructions.

STATEMENT OF THE FACTS

During the last week of June or first week of July, 1985, Onyx, by counsel, met with Kathy Kinzel (Kinzel), Building Commissioner for the City of Seymour, to inquire as to the zoning classification of certain real estate, and to determine whether its use as a bituminous asphalt batch plant would be permitted. Counsel for Onyx informed Kinzel about the basic operation of an asphalt batch plant and explained that the manufactured product would be used for paving streets. Upon consulting the Seymour Zoning Code, Kinzel determined that the real estate in question was zoned I-2, Heavy Industrial. She agreed that the proposed batch plant would fall under the same provisions as a concrete mixing plant and was a permitted use within the I-2 classification. Satisfied that it could build an asphalt batch plant on the real estate in question, Onyx subsequently proceeded to purchase the property for $74,500 contingent On July 19, 1985, counsel for Onyx telephoned Kinzel and informed her that representatives for Onyx would be in that day to file for an Improvement Location Permit to build the asphalt batch plant on the property. Later that same day, Greg Pardieck, a vice-president of Onyx, appeared at Kinzel's office to file for a permit. At that time he submitted to Kinzel a pre-application form, site plans, letter from the Indiana Department of Natural Resources approving the batch plant location, and the required fee. Pardieck informed Kinzel that Onyx wanted the permit for a bituminous asphalt batch plant and explained that when completed the plant would produce blacktop used for paving roads. He also informed Kinzel that the plant would require a 10 by 12 foot utility building and estimated that the cost of the entire project would be $100,000. Kinzel completed the application for the Improvement Location Permit, accepted the application fee, and signed and issued the Improvement Location Permit to Onyx. Verbatim, the permit stated that it was issued for:

upon obtaining the permits required by the appropriate authorities, including zoning.

"bituminous batch plant utility bldg. 10' X 12' ".

Record at 1125.

After receiving the permit Onyx completed purchasing the land in question, purchased for $60,000 a pre-existing asphalt batch plant, and acquired various other state permits and approvals. On September 4, 1985, Onyx sought and received an extension of time within which to begin construction of the plant, extending the date by which construction was required to begin to March 4, 1986. Onyx in fact commenced construction of the plant prior to that date. On March 10, 1986, however, Kinzel issued a stop work order at the site pursuant to direction of the mayor. Onyx complied with the order and stopped work immediately. On March 12 Kinzel, the mayor, and the city attorney requested Onyx to provide proof of exemption from the State Building Commission and to provide a better site plan. Onyx provided the city with a more detailed site plan and proof of the exemption on March 13 and 14. Seymour then asserted the need for a Special Exception Permit on the possibility that the asphalt batch plant manufactured tar or tar products or was engaged in the process of oil processing, refining, and manufacturing. During negotiations Seymour officials informed Onyx that the matter had been investigated, that it would not cancel the stop work order, and that it would file suit against Onyx if it violated the order.

On March 24th, Onyx filed suit in the Jackson Circuit Court requesting injunctive relief and damages. On that same date, Onyx filed an appeal with the Seymour Board of Zoning Appeals. That appeal was subsequently denied after which Onyx filed a petition for writ of certiorari with the Jackson Circuit Court. That cause is currently pending with no action having been taken by either party. On the following day, March 25, Seymour also filed suit by separate action in the Jackson Circuit Court. On April 10, Onyx filed a motion to consolidate the separate causes, unopposed by Seymour, which the trial court granted. On April 14, Onyx filed with the city a notice of tort claim. Seymour, however, never placed a claim on the docket of the city council and took no action to honor or deny such. Thereafter, Seymour filed a motion to separate the issues for trial. The trial court granted that motion and set the parties' claims for injunctive relief for trial on June 9 and 10.

Following the trial on the injunction issues, the trial court entered its Findings of Fact and Conclusions of Law. It entered judgment in favor of Onyx, granting its request for an injunction and denying the city's request for injunctive relief. Trial on the damages issues was subsequently set for and tried on November 4, 5, and 6, 1987. The trial resulted in a jury verdict in favor of Onyx in the sum of $121,600. Seymour subsequently instituted this appeal.

ISSUES

Due to our resolution of this case, this appeal presents the following issues for our review:

I. Whether the trial court had jurisdiction to hear the suit for injunction.

II. Whether some of the trial court's findings of fact were clearly erroneous.

III. Whether Seymour is immune from liability for the issuance of the stop work order under IND.CODE 34-4-16.5-3.

IV. Whether the trial court erroneously permitted the jury to consider improper evidence of damages.

Additionally, Onyx contends the trial court erred in refusing to permit it to offer proof of the attorney fees it incurred in either or both the injunctive relief or damage portion of the cause.

DISCUSSION AND DECISION

ISSUE I: Jurisdiction

Seymour contends that the trial court did not have jurisdiction to hear the injunction suit because Onyx failed to exhaust its administrative remedies. Seymour argues that Onyx was required to appeal the issuance of the stop work order to the board of zoning appeals pursuant to Seymour Zoning Code Section 1.08(B)(4). Then, upon receiving an unfavorable decision, it could file a petition for certiorari to review the decision with the Jackson Circuit Court. See IND.CODE 36-7-4-1003. Seymour claims that because Onyx did not exhaust this administrative procedure, the trial court was precluded from exerting jurisdiction over the suit for injunctive relief.

Seymour Zoning Code Section 1.08(B)(4) states as follows:

Any decision of the building commissioner in enforcement of this ordinance may be appealed to the Board [of Zoning Appeals] by any person claiming to be adversely affected by such decision.

Record at 1494.

Initially, we observe that the language contained in this section of the zoning ordinance is discretionary, not mandatory. This section states that a person adversely affected by a decision of the building commissioner "may" appeal such to the board of zoning appeals. Thus, there is no requirement within the Seymour Zoning Ordinance mandating Onyx to appeal to the board of zoning appeals the issuance of the stop work order by the building commissioner. In fact, Seymour Zoning Code Section 12.01(A) entitled "Enforcement and Penalties" permits the institution of a suit for injunction in the Jackson Circuit Court by any person adversely affected by a decision of the building commissioner. Seymour Zoning Code Section 12.01 states:

The commission, the board, building commissioner, or any designated enforcement official, or any person or persons, firm or corporation jointly or severally agreed, may institute a suit for injunction in the Circuit Court of Jackson County to restrain any individual or a governmental unit from violating the provisions of this code.

Record at 1607. Under the Seymour Zoning Code Onyx was permitted to directly challenge a decision of the building commissioner through injunctive relief proceedings without first obtaining an unfavorable ruling from the board of zoning appeals. Thus, the Jackson Circuit Court had jurisdiction to hear the suit for injunctive relief filed by Onyx.

ISSUE II: Erroneous Findings

Seymour next contends that the trial court erred in entering various findings of fact and conclusions of law in support of its judgment. We remind Seymour of our standard of review. It is a well established and acknowledged rule that when we review a case in which a trial court has rendered findings of fact and conclusions of law, we will not set aside the trial court's judgment unless it is clearly erroneous. Rose Acre Farms, Inc. v. Greemann Real Estate (1987), Ind.App., 516 N.E.2d 1095; Ind. Rules of Procedure, Trial Rule 52. The findings or judgment of the trial court will be found to be clearly erroneous only when on the entire record the reviewing court is left with the definite and firm conviction that a mistake has been committed. Skweres v. Diamond Craft Co. (1987), Ind.App., 512 N.E.2d 217. Furthermore, we will neither reweigh the evidence nor reassess the credibility of the witnesses, but will consider only the evidence in the record which supports the judgment along with the reasonable inferences which may be drawn therefrom. Id.

Seymour contends that Onyx did not possess a permit for construction of a bituminous asphalt batch plant. Instead, it claims that Onyx only...