Dibble v. City of Lafayette
| Decision Date | 23 April 1997 |
| Docket Number | No. 79A02-9610-CV-619,79A02-9610-CV-619 |
| Parties | Leonard F. DIBLE and Barbara Dible, Appellants-Plaintiffs, v. The CITY OF LAFAYETTE, Appellee-Defendant. |
| Court | Indiana Appellate Court |
Leonard F. and Barbara H. Dible [Dible] appeal the adverse summary judgment in their action against the City of Lafayette [City] requesting an injunction prohibiting the City from constructing excessive and unnecessary improvements on their land. Dible raises six issues which we restate and consolidate. The dispositive issue may be restated as follows:
whether genuine issues of material fact exist regarding whether the City violated Dible's due process and property rights by constructing on Dible's land a large storm sewer drain and a sewage lift station that were either entirely unnecessary or much larger than necessary to serve any legitimate public purpose.
We reverse.
The facts in the light most favorable to the nonmovant Dible reveal that, in 1971, the Dibles purchased a lot in a subdivision and built their home upon it. One end of Dible's property was crossed by a steeply banked, wooded, natural ravine through which water naturally coursed. The subdivision, including Dible's property, is subject to a restrictive covenant, which touches, concerns and runs with the land, which reads as follows:
The drainage ways and ravines on the lots in the subdivision, as they exist at the time they are sold to the first purchaser, shall be maintained and shall not be filled or altered in any way unless the building committee ... shall first consent in writing to such filling or alteration. In the event of violation of this restriction said committee shall have the right to have the affected drainage way or ravines cleaned or otherwise restored and shall have the right to collect the costs thereof and interest and attorneys' fees from the owner or owners of the lot or lots where the violation occurred.
The City holds utility and drainage easements on Dible's property, including part of the ravine. The original sewage lift station serving the subdivision had been placed on the City's easement on one bank of the ravine, partly on Dible's property. By 1992, this sewage lift station had exceeded its expected life and needed to be replaced.
In 1992, the City's Board of Public Works and Safety began two construction projects which would affect Dible's property. One was the installation of new storm sewer drains and the other was the replacement of the sewage lift station. The two projects were financed through different sources. As discussed below, the City essentially relinquished all responsibility and control over the projects to a private contractor, Hawkins Environmental, Inc., who designed the improvements and managed the construction projects. The City would appear not to dispute that this arrangement violated Ind.Code 5-16-10-2(a) which provides:
A unit of local government may not employ the architect or engineer who provided design services on a public construction project or his affiliate, to be the construction manager on the project he designed.
The engineering plans drawn up by Hawkins and presented at the public hearings were not comprehensive, and, initially, did not disclose that a new sewage lift station was to be installed on Dible's property. Dible, a retired industrial engineer, began communicating in writing with Hawkins and City personnel in an effort to obtain information regarding the design and scope of the project or projects. Dible pointed out that the sewer drain that was to placed in the ravine on his property was entirely unnecessary because, as a part of the same project, the City was installing a larger storm drain elsewhere which would intercept approximately 95% of the water that would otherwise have coursed through the ravine. Dible also questioned Hawkins and City personnel why the plans called for the ravine to be recontoured and filled in with approximately 200 truckloads of dirt. No one informed Dible that a new sewage lift station was to be installed. However, it became obvious later that the purpose of recontouring and filling in the ravine, as depicted in the engineering plans, was to prepare the site for the installation of the new sewage lift station.
On March 29 and 30, 1993, the City, acting through Hawkins, excavated a massive swath through the ravine on Dible's property, removing much of the ravine's natural banks and cutting down or destroying 17 large trees. The City undertook this action without obtaining the necessary construction or building permits, and despite Dible's written and oral objections to City and Hawkins personnel. On March 30 or 31 of 1993, Dible held a meeting on his property with the County Surveyor, a County Commissioner, and Hawkins personnel. Dible explained about the restrictive covenant which prohibited filling in or altering the ravine. All involved orally agreed that construction would stop pending the meeting of the County Drainage Board scheduled for April 7, 1993, at which Dible would be permitted to raise his objections. Nevertheless, on April 6, 1993, in violation of this agreement, the City installed 105 feet of concrete storm sewer drain in the bottom of the ravine. The drain was covered by a large amount of fill dirt in preparation for building the pad for the new lift station. Incidentally, the City had not yet obtained the permits required to build the new lift station.
Dible voiced his objections at the Drainage Board meeting held on April 7, 1993. The Drainage Board attorney stated that project did not comply with the drainage ordinance, nor had the City been authorized to begin the construction without the consent of the Drainage Board.
Approximately five days later, on April 12, 1993, the City obtained a building permit for the sewage lift station. The engineering plans on file since 1992 depicted only a "building pad." Dible wished to stay informed about the process and expected to eventually see engineering plans for the proposed lift station. In order to keep himself informed, Dible placed many calls to the Indiana Department of Environmental Management [IDEM] from which the City would be required to obtain a sewer permit.
Dible was out of the state the last ten days of March and the first part of April, 1994. While he was gone, the City published notice in the local newspaper that it would hold a public meeting on April 5, 1994, to receive comments and to advise the public about the water main and sewage collection system projects. Dible had no actual notice of the scheduled meeting. The official minutes of the meeting held at City Hall show that the only persons present were Hawkins personnel, and read:
The meeting started at 10:30 a.m. and adjourned at 10:45 a.m. due to no potentially affected parties in attendance. No written or oral comments were submitted.
When Dible returned from his trip out of state, he promptly called IDEM and learned that the City, through Hawkins, had filed the anticipated plans for the sewage lift station in its application for the permit from IDEM. The IDEM permit application forms required the City to:
[f]ully identify all persons, by names and address, who may be potentially affected by the issuance of this permit, such as adjoining landowners, persons with a proprietary interest, and/or persons who have complained or submitted comments about your proposed facility. Failure to fully identify a potentially affected person may result in any issued permit being challenged and rendered null and void.
The purpose of this requirement, as outlined in a certified letter sent from IDEM to the City, was to provide aggrieved persons a fifteen day period to request an adjudicatory hearing as provided by statute. Despite the well-documented history of Dible's objections and concerns regarding the scope of the projects to be constructed on his property, the City did not list or otherwise identify him as required in its application. The application also did not inform IDEM that the property was subject to restrictive covenants governing water drainage.
In April of 1994, Dible continued to write letters to the City and Hawkins personnel objecting to the excessive amount of fill dirt which was to be placed in the ravine for the construction of the new lift station. Dible has never objected to the installation of a new lift station but has only protested the proposed size as excessive and unnecessary and, therefore as constituting an unnecessary and excessive burden on his property.
On June 27, 1994, Hawkins began excavation on the new lift station. On June 29, 1994, Dible filed the present lawsuit alleging that the construction exceeded the City's easement, violated restrictive covenants, and constituted an unlawful taking of Dible's property. Dible requested that the trial court issue an injunction prohibiting any additional construction. The trial court set the preliminary injunction hearing for July 12, 1994. However, the City obtained a continuance, and the hearing was reset, by agreement, for August 2, 1994. The City took the position that it would not, and could not, consent to any delay in the project because such would require notice to the holders of the bonds used to finance the project. Thus, the City continued with the construction on Dible's property. However, the City later admitted that the situation with the bonds had not presented a problem because the sewage lift station project had been financed through a different source, which had not been subject to such constraints. At every step of the way, Dible warned the City that if he were ultimately successful in the present litigation, the City could be required to remove the improvements from his property.
On July 25, 1994, the...
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