Cracker Barrel v. Town of Plainfield

• Decision Date: 24 May 2006
• Docket Number: No. 32A01-0507-CV-296.,32A01-0507-CV-296.
• Citation: 848 N.E.2d 285
• Parties: CRACKER BARREL OLD COUNTRY STORE, INC., Appellant-Defendant, v. TOWN OF PLAINFIELD, Indiana, on Behalf of the PLAINFIELD PLAN COMMISSION, Appellee-Plaintiff.
• Court: Indiana Appellate Court

848 N.E.2d 285

CRACKER BARREL OLD COUNTRY STORE, INC., Appellant-Defendant, v. TOWN OF PLAINFIELD, Indiana, on Behalf of the PLAINFIELD PLAN COMMISSION, Appellee-Plaintiff.

No. 32A01-0507-CV-296.

Court of Appeals of Indiana.

May 24, 2006.

COPYRIGHT MATERIAL OMITTED

Michael A. Wukmer, Brian E. Bailey, Ice Miller, Indianapolis, for Appellant.

Melvin R. Daniel, James B. Chapman II, Dann Pecar Newman & Kleiman, P.C., Indianapolis, for Appellee.

OPINION

BAKER, Judge.

Appellant-defendant Cracker Barrel Old Country Store, Inc. (Cracker Barrel) appeals the trial court's grant of summary judgment entered in favor of the appellee-plaintiff Town of Plainfield (Plainfield), which determined that Cracker Barrel's pole sign must be removed from its premises. Specifically, Cracker Barrel argues that the trial court erroneously determined that its sign lost its status as a legally established nonconforming structure in accordance with Plainfield's zoning ordinance (the Ordinance) when it had performed maintenance on the sign. Concluding that the trial court properly determined that Cracker Barrel lost its status as a nonconforming use under the Ordinance when it removed its sign from the pole, we affirm the entry of summary judgment for Plainfield.

FACTS

In 1992, Cracker Barrel opened a restaurant and gift shop in Hendricks County near the interchange of I-70 and State Route 267. Cracker Barrel received permission from the Hendricks County Planning and Building Department to construct a free-standing highway identification sign on its property. In the permit application, Cracker Barrel indicated that its pole sign would stand 150 feet tall, with a surface area of approximately 650 square feet, at an estimated cost of $89,000. The sign matched these specifications, and it consisted of two surfaces, a cabinet, internal lighting, and a pole.

Sometime thereafter, an annexation occurred, whereby Cracker Barrel came under Plainfield's jurisdiction. In 1998, Plainfield enacted Ordinance No. 21-97. It was subsequently determined that Cracker Barrel's sign violated the provisions of the Ordinance because it exceeded height and surface area limitations. However, Cracker Barrel's sign qualified as a pre-existing, legally established, non-conforming structure as defined in the Ordinance.

In 2002, when the sign's surface needed to be replaced, Cracker Barrel's contracting consultant contacted Plainfield's Director of Planning, J. Higbee, about performing work on the sign. Higbee took the position that Cracker Barrel would be permitted under the Ordinance's "safe harbor" provision to "reface" the existing surfaces without removing them from the structure. No permit was required to perform this work so long as Cracker Barrel "swapped out existing panels [i.e., the sign surfaces] with same type and size new panels." Appellant's App. p. 589. However, various representatives from Plainfield informed Cracker Barrel personnel that if the restaurant removed the cabinet from the sign structure, the sign would lose its pre-existing, legally established, non-conforming use status. In a fax, Cracker Barrel's sign contractor indicated that "Mr. Higbee advises that both pylon signs at this site are there by grace of the `legally non-conforming use' articles of the codes, as square footage and height exceeded current limitations. To reface these existing cabinets, without removing them from the structure, would be permissible as maintenance." Appellant's App. p. 199, 588.

On September 16, 2002, Cracker Barrel's contractor began work on the sign. The work order directed that the sign cabinet was to remain atop the pole during the repairs. Specifically, Cracker Barrel's consultant advised that the nonconforming use status goes "out the window if the cabinets are removed." Appellant's App. p. 198, 587. Notwithstanding these instructions, the contractor—at Cracker Barrel's request—detached the sign cabinet from the top of the sign and temporarily lowered it to the ground, apparently for safety reasons. The contractor removed the existing sign surfaces from the frame and replaced them with new ones. Thereafter, the sign was reaffixed to the top of the pole.

On October 2, 2002, Plainfield served Cracker Barrel with notice of a zoning violation. Specifically, Plainfield informed Cracker Barrel that its temporary detachment of the sign cabinet constituted a violation of the Ordinance. As a consequence, enforcement of the ordinance would reduce the sign from a height of 150 feet to 6 feet and the square footage from 652 feet to 48 feet.

When Cracker Barrel refused to remove its sign, Plainfield initiated an action against Cracker Barrel in the trial court, alleging that the sign had lost its status as a pre-existing nonconforming use. Specifically, Plainfield alleged that "the movement of the sign structure to the ground and the removal of the sign's surface from its frame violated the provisions of the Ordinance and resulted in the Tall Pole Sign losing its classification as a pre-existing nonconforming sign." Appellant's App. p. 17. Hence, Plainfield requested that the trial court order Cracker Barrel to completely dismantle and remove the sign. Cracker Barrel denied the allegations and asserted a counterclaim against Plainfield, contending that Plainfield's interpretation and enforcement of the Ordinance amounted to an unconstitutional taking of Cracker Barrel's property.

Thereafter, Plainfield filed a motion for summary judgment, arguing that: (1) Cracker Barrel's sign violated the Ordinance as a matter of law because of the manner in which Cracker Barrel replaced its sign surfaces; (2) the plain language of the Ordinance established Cracker Barrel's violation; and (3) Cracker Barrel could not reasonably argue that it suffered any unfair prejudice as a result of the enforcement of the Ordinance.

Cracker Barrel filed a cross-motion for summary judgment, arguing that: (1) it did not move the sign within the meaning of the Ordinance because the sign remained in exactly the same location and position where it had always been; (2) Cracker Barrel only performed routine maintenance on its sign that is permitted under the Ordinance; (3) Plainfield has cited an incorrect legal standard for the trial court's review and interpretation of the Ordinance; (4) the Ordinance did not prohibit Cracker Barrel's manner of replacing the sign surfaces; and (5) the enforcement of Plainfield's Ordinance amounted to an unconstitutional taking of its property.

Following argument on June 3, 2005, the trial court granted Plainfield's motion for summary judgment, concluding that the work performed by Cracker Barrel constituted a "moving" within the terms of the Ordinance, which caused the sign to lose the status of a "pre-existing, legally established, nonconforming use." Appellant's App. p. 10. Moreover, the trial court concluded that Cracker Barrel's replacement of the sign surfaces did not come within the definition of "maintenance" under the "safe harbor" provisions of the Ordinance, and that the enforcement of the Ordinance did not amount to a taking. Id. As a result, the trial court ordered Cracker Barrel to remove its sign from the property within sixty days of its order.¹ Cracker Barrel now appeals.

DISCUSSION AND DECISION

I. Standard of Review

When reviewing the trial court's grant of summary judgment, we apply the same standard the trial court applied. Summary judgment is appropriate if the pleadings and evidence submitted demonstrate there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. We construe the pleadings, affidavits, and designated evidence in the light most favorable to the non-moving party, and the moving party has the burden of demonstrating the absence of a genuine issue of material fact. Wilson v. Royal Motor Sales, Inc., 812 N.E.2d 133, 135 (Ind.Ct.App.2004). Because a trial court's grant of summary judgment comes to us clothed with a presumption of validity, the appellant must persuade us that error occurred. Id. Nevertheless, we carefully scrutinize motions for summary judgment to ensure that the non-moving party was not improperly denied her day in court. Id. If the trial court's entry of summary judgment can be sustained on any theory or basis in the record, we must affirm. Irwin Mortgage Corp. v. Marion County Treasurer, 816 N.E.2d 439, 442 (Ind.Ct.App.2004).

Additionally, any doubt as to the existence of an issue of material fact, or an inference to be drawn from the facts, must be resolved in favor of the nonmoving party. Cowe v. Forum Group, Inc., 575 N.E.2d 630, 633 (Ind.1991). Although the nonmovant has the burden of demonstrating that the grant of summary judgment was erroneous, we carefully assess the trial court's decision to ensure that the nonmovant was not improperly denied his or her day in court. Colonial Penn Ins. Co. v. Guzorek, 690 N.E.2d 664, 667 (Ind.1997).

We also note that the trial court entered specific findings of fact and conclusions of law in its order granting summary judgment for Plainfield. While such findings and conclusions are not required, and although they offer valuable insight into the rationale for the judgment and facilitate our review, we are not limited to reviewing the trial court's reasons for granting or denying summary judgment. Bernstein v. Glavin, 725 N.E.2d 455, 458 (Ind.Ct.App. 2000). Rather, a grant of summary judgment may be affirmed upon any theory supported by the designated materials. Id.

II. Cracker Barrel's Claims

A. "Movement" of the Sign and Maintenance

Cracker Barrel argues that summary judgment was improperly granted in favor of Plainfield because the designated evidence failed to demonstrate that it lost its status as a legally established nonconforming structure under the Ordinance. Specifically, Cracker Barrel maintains that the designated evidence submitted to the trial court established that the sign was not "moved...