Hannon v. Metropolitan Development Com'n of Marion County

• Decision Date: 02 May 1997
• Docket Number: No. 49A02-9605-CV-255,49A02-9605-CV-255
• Citation: 685 N.E.2d 1075
• Parties: Terrence HANNON, Jeffrey L. and Janet L. Hair, and Leroy and Christine Proud, Appellants, v. The METROPOLITAN DEVELOPMENT COMMISSION OF MARION COUNTY, Appellee.
• Court: Indiana Appellate Court

Page 1075

685 N.E.2d 1075

Terrence HANNON, Jeffrey L. and Janet L. Hair, and Leroy and Christine Proud, Appellants, v. The METROPOLITAN DEVELOPMENT COMMISSION OF MARION COUNTY, Appellee.

No. 49A02-9605-CV-255.

Court of Appeals of Indiana.

May 2, 1997.

Publication Ordered May 19, 1997.

Gordon L. Harger, David A. Clase, Harper, Clase & Grimmett, Indianapolis, for Appellants-Defendants.

Marguerite M. Sweeney, Assistant Corporation Counsel, Indianapolis, for Appellee-Plaintiff.

OPINION

RILEY, Judge.

STATEMENT OF THE CASE

Defendant-Appellants, Terrence Hannon, Jeffrey L. and Janet L. Hair, and Leroy and Christine Proud (Appellants), appeal the ruling in favor of the Plaintiff-Appellee, the Metropolitan Development Commission of Marion County (Commission), resulting in an injunction against Appellants.

We affirm.

ISSUES

The Appellants present the following re-stated and consolidated issues for our review:

1. Whether the trial court erred in finding that the Dwelling Districts Zoning Ordinance complied with Ind.Code 36-1-5-4.

2. Whether the trial court erred in granting the Commission injunctive relief.

FACTS AND PROCEDURAL HISTORY

This appeal arose from four separate actions against three separate defendants. It was initiated by the Commission seeking injunctions for the violation of a zoning ordinance. In each case the use and development of the real estate at issue is governed by the Dwelling Districts Zoning Ordinance of Marion County (Ordinance) which is found within the Revised Code of the Consolidated City and County (Rev.Code), Chapter 731. The Commission sought to enjoin the Appellants from using their real estate as multi-family dwelling units in violation of the Ordinance. ¹ The actions against the Prouds and the Hairs were decided on summary judgment, while the case against Hannon was decided pursuant to a bench trial. All judgments were entered June 14, 1996, and the Appellants bring this timely appeal. The undisputed facts follow.

The real estate referred to as 521 East Morris Street was converted from a single family home into a two-family home between 1951 and 1956. Then, in 1973, the house was further divided to accommodate six families. Hannon acquired this real estate on September 30, 1992, at which time it still contained six apartments. The building was later re-modeled by Hannon to contain five apartments instead of six. The Commission filed this complaint on January 13, 1995. The trial was held on May 31, 1996.

The Hairs own two properties for which the Commission seek injunctions. Their real estate located at 41/43 North Hamilton Street existed as a two-family structure from 1914 until 1974, at which point it was converted into five apartments. Their property at 1106/1108 North Tacoma Avenue was converted from a two-family dwelling to a four-family dwelling in 1947. The action against the Hairs was filed on December 12, 1994, for the Tacoma Avenue house and on September 27, 1994, for the Hamilton Street building. Arguments on the summary judgments were held on June 14, 1995.

The Prouds' property at 237/239 North Beville Avenue contains three apartments and has been a multi-family dwelling since 1961. The Commission filed its complaint for injunction against the Prouds on February 27, 1995. The Commission filed a motion for summary judgment on May 31, 1995, and the Prouds on June 1, 1995. A hearing on the summary judgments was held on June 14, 1995.

The court granted the Commission's request for an injunction in all four cases. The Appellants bring this timely appeal.

DECISION AND DISCUSSION

Standard of Review

One of the four cases on this appeal was decided pursuant to a bench trial; the rest were decided pursuant to a summary judgment. Because of this, we have different standards of review.

First, we will review the standard for summary judgments. The motion for summary judgment shall be granted if the trial court finds "that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Ind.Trial Rule 56(C). Therefore, our standard of review is the same as the trial court's: whether there are no issues of material fact, and whether the moving party is entitled to judgment as a matter of law. Dillman v. Great Dane Trailers, Inc., 649 N.E.2d 665, 667 (Ind.Ct.App.1995). The moving party bears the burden of establishing those two requirements for the grant of a summary judgment in their favor, while all facts are viewed in favor of the non-movant. See Green v. Perry, 549 N.E.2d 385, 387 (Ind.Ct.App.1990), reh'g denied, trans. denied. ²

Next we will address the appropriate standard of review for Hannon's appeal which was decided pursuant to a bench trial. Because the trial court entered findings of fact and conclusions of law along with its judgment, the applicable standard of review is found in Ind.Trial Rule 52(A). "On appeal of claims tried by the court without a jury ... the court on appeal shall not set aside the findings or judgment unless clearly erroneous...." T.R. 52(A). In reviewing such a judgment, we must first determine whether the evidence supports the findings, and then whether the findings support the judgment. Hvidston v. Eastridge, 591 N.E.2d 566, 568 (Ind.Ct.App.1992); Gunderson v. Rondinelli, 677 N.E.2d 601, 603 (Ind.Ct.App.1997). "To determine whether the findings or judgment are clearly erroneous, we consider only the evidence favorable to the judgment and all reasonable inferences flowing therefrom, and we will not reweigh the evidence or assess witness credibility." Hvidston, 591 N.E.2d at 568; see Gunderson, 677 N.E.2d at 603.

I. Validity of the Ordinance

In order to sustain a suit for an injunction against the land owners preventing the current use of the property, the Commission must show proof of a valid ordinance and evidence establishing a violation of that ordinance. Harbour Town Associates v. Noblesville, 540 N.E.2d 1283, 1284 (Ind.Ct.App.1989). In challenging the validity of the Ordinance, the Appellants question whether or not the trial court was correct in finding that the Ordinance complied with Ind.Code 36-1-5-4. ³

Ind.Code 36-1-5-4 requires the inclusion of specific language in order to incorporate material into an ordinance or code by reference.

The legislative body of a unit may incorporate by reference into an ordinance or code any material. The ordinance or code must state that two (2) copies of the material are on file in the office of the clerk for the legislative body for public inspection, and the copies must be on file as stated for public inspection.

Ind.Code 36-1-5-4. The exact language required by Ind.Code 36-1-5-4 is not contained within the Ordinance; however, it is within the encompassing Rev.Code. The parties disagree on whether this is sufficient compliance with the statute to uphold the Ordinance. ⁴

Ind.Code 36-1-5-4 requires the necessary language to be in the ordinance or the code. Therefore, the trial court's interpretation allowing the language to be in the Rev.Code instead of the Ordinance is not clearly erroneous. We uphold the trial court's ruling. Additionally, there is no issue of material fact; the Appellants' buildings violate the ordinance. Therefore, the Commission is entitled to the injunction as a matter of law. The required language is found within the Rev.Code in compliance with the statute; therefore, the Ordinance is valid. ⁵

The Appellants argue that this application of the statute frustrates the legislative purpose behind the statute. However, when interpreting a statute the words and phrases in a statute are to be given their plain, ordinary, and usual meaning unless a contrary purpose is clearly shown by the statute itself. Saurer, 629 N.E.2d at 897. Additionally, statutes relating to the same subject matter should be construed together in order to produce a harmonious statutory scheme. Wilburn v. State, 671 N.E.2d 143, 147 (Ind.Ct.App.1996), trans. denied. ⁶ Although it is true that we must look to legislative intent when construing a statute with ambiguous language, "[i]f the language of a statute is clear and unambiguous it is not subject to judicial interpretation." Town of Merrillville, 649 N.E.2d at 649. The language of the statute here is clear and unambiguous therefore we do not need to examine how well it serves its purpose.

II. Grant of Injunctive Relief

The Appellants argue that the Commission should be enjoined from enforcing the Ordinance. Multiple reasons are given to support their request for an injunction against the enforcement of the Ordinance. Appellants asserted the defense of laches, equitable estoppel, and valid nonconforming use of the property. The trial court did not err in finding that the Commission was not enjoined from enforcing the Ordinance.

A. Laches

Appellants suggest that the court should change the well established law in Indiana and apply the doctrine of laches to prevent the enforcement of the Ordinance. The equitable doctrine of laches has been defined as:

the neglect for an unreasonable or unexplained length of time, under circumstances permitting diligence, to do what in law should have been done. It is an implied waiver arising from knowledge of existing conditions and an acquiescence in them, the neglect to assert a right, as taken in conjunction with the lapse of time, more or less great, and other circumstances causing prejudice to the adverse party and thus operating as a bar in a court of equity.

Harbour Town Associates, 540 N.E.2d at 1286 (quoting Perry v. State, 512 N.E.2d 841, 842 (Ind.1987), reh'g denied ). However, Harbour Town also holds that the doctrine of laches is never applicable to a municipality in enforcing its ordinances because of public policy interests. 540 N.E.2d at 1286; see Wesner v. Metropolitan Dev. Comm'n of Marion County, 609 N.E.2d 1135, 1137 (Ind.Ct.App.1993). Therefore, Appellants' argument that the Commission is barred from enforcing its ordinance...