Hawley v. South Bend, Dept. of Redevelopment, 1278S299

• Decision Date: 21 December 1978
• Docket Number: No. 1278S299,1278S299
• Citation: 270 Ind. 109,383 N.E.2d 333
• Parties: Edith HAWLEY and Angela D. Berg, Appellants, v. SOUTH BEND, Indiana DEPARTMENT OF REDEVELOPMENT and South Bend Redevelopment Commission, Appellees.
• Court: Indiana Supreme Court

Page 333

383 N.E.2d 333

270 Ind. 109

Edith HAWLEY and Angela D. Berg, Appellants, v. SOUTH BEND, Indiana DEPARTMENT OF REDEVELOPMENT and South Bend Redevelopment Commission, Appellees.

No. 1278S299.

Supreme Court of Indiana.

Dec. 21, 1978.

Timothy W. Woods, South Bend, for appellants.

G. Terry Cutter, Bowman, Cobb & Cutter, Indianapolis, Edward A. Chapleau, South Bend, for appellees.

OPINION ON PETITION TO TRANSFER

GIVAN, Chief Justice.

Pursuant to the authority of the Redevelopment of Cities and Towns Act of 1953, IC § 18-7-7-1 Et seq. (Burns 1974), the South Bend Redevelopment Commission declared the downtown section of that city to be a "blighted area". Property within the "Central Downtown Urban Renewal Area" was acquired by the Commission with a view toward redevelopment by private investment. The project was challenged by remonstrators. At the hearing before the Commission, the resolution was modified and the project confirmed. The remonstrators appealed to the St. Joseph Superior Court where the decision of the Commission was affirmed. This appeal was originally filed with the Court of Appeals. However, it has been transferred to this Court under the provisions of Ind.R.App.P. 4(A)(10).

Appellants first contend the trial court committed reversible error in failing to make special findings of fact in support of the order affirming the resolution of the Commission. Ind.R.Tr.P. 52(A) provides that a trial court shall make special findings of fact in any review of actions by an administrative agency. The trial judge in the case at bar filed a 16-page memorandum with his order. This memorandum specifically discusses each and every issue raised by the remonstrators. Without quoting the lengthy decision verbatim, suffice it to say that the order sufficiently discloses the basis and underlying grounds for the decision as well as the specific facts in support thereof. Farmers State Bank, LaGrange v. Department of Financial Institutions (1976) Ind.App., 355 N.E.2d 277.

Appellants next claim the trial court erred in failing to require the Commission to make findings of fact in support of its Resolutions. We first note that IC § 18-7-7-15 (Burns 1974) provides that "(t)he only ground of remonstrance which said court shall have the power or jurisdiction to hear shall be the question whether the proposed project will be of public utility and benefit . . .." However, this particular clause in the statute has been declared unconstitutional as a restriction on the due process rights to judicial review of administrative actions. Prunk v. Indianapolis Redevelopment Commission (1950) 228 Ind. 579, 93 N.E.2d 171. The trial court was therefore not restricted to the statute in its review.

In Kunz v. Waterman (1972) 258 Ind. 573, 283 N.E.2d 371, this Court reiterated a longstanding rule regarding zoning board findings, which is applicable to all administrative agencies:

"(T)he Board must in all cases set out written findings of fact in support of their decision so that this Court may intelligently review that specific decision without speculating as to the Board's reasoning. Written findings of fact help to maintain the integrity of the Board's decision by insuring that our review is strictly limited to those findings." 258 Ind. at 577, 283 N.E.2d at 373.

In the case at bar, the Commission made all off the ultimate findings required by IC § 18-7-7-12 (Burns 1974), but failed to make findings of the underlying facts and grounds for the decision. However, in our view, the failure to find such underlying facts and grounds does not require us to reverse the Commission's decision. The purpose of the rule, as we said in Kunz v. Waterman, supra, is to facilitate judicial review. Here, the trial court had no problem in reviewing the action of the Commission since the hearing was fully transcribed. We therefore hold that the error of the Commission in not stating the underlying facts and grounds for its decision was harmless in view of the ample record of the hearing.

Appellants next argue that they were denied due process of law and a fair hearing because in adopting the Resolution and finding that the area was blighted, the Commission relied in part on evidence not produced at the hearings. In Jeffersonville Redevelopment Commission v. City of Jeffersonville (1967) 248 Ind. 468, 229 N.E.2d 825, this Court stated:

"An administrative tribunal cannot rely on its own information for support of its findings, and order of tribunal must be based on evidence produced in the hearing at which an opportunity is given to all interested parties to offer evidence and cross-examine witnesses." 248 Ind. at 471, 229 N.E.2d at 827.

While this case places certain duties upon the Commission concerning evidence and the basis of its decision, we see nothing in it or in law and policy to compel the Commission to produce at the hearing every scintilla of evidence having the most remote bearing on the question of blight. So long as there is substantial evidence of probative value in the record to support the findings of blight and so long as the rights to examine evidence, cross-examine witnesses, and offer evidence are afforded to interested persons, this is sufficient to satisfy the requirements of due process.

In the case at bar, the Commission conducted its hearing on three different days, producing In toto three sizeable volumes of transcript. At this hearing, appellants were given the full opportunity to cross-examine witnesses, examine the exhibits, and produce evidence of their own. A study conducted by Real Estate Research Corporation, an economic planning and consulting firm, concluded that the area was blighted and that the proposed shopping mall would be an economic boon to the area. Although the actual survey was not formally placed into the record of the hearing, it was discussed and fully explained at the hearing. Further, there was testimony from a representative of the Chamber of Commerce which also had conducted a survey and had reached substantially the same conclusions. Finally, there was the 1967 official finding of blight in the downtown area. Clearly, this is substantial evidence of probative value and is sufficient to support the Commission's finding.

Appellants, nevertheless, point to the testimony of three of the Redevelopment Commissioners in the trial court. The Commissioners testified that in the past they had discussed the Real Estate Research and Chamber of Commerce studies and had also discussed the subject with various persons, including Nicholas Jannotta, the Executive Vice-President of Real Estate Research Corporation. Appellants apparently would have us require the Commission to place in the record the content of every informal off-the-record discussion ever held on the subject. This, we think, would severely hinder the work of an administrative agency, particularly in the case at bar where appellants were fully aware of the Commission's reliance on these studies and had the opportunity to examine them. No error has been shown to us which would require a vacation of the Commission's action.

Appellants next make a series of eight arguments that the trial court erred in finding that the Commission complied with all the conditions precedent in the enabling act. They first contend that no investigation was made to determine if the area sought to be acquired was blighted. Such an investigation is required by IC § 18-7-7-12. In response to this allegation, the trial court held:

"The transcript of the public hearing on Resolution 540 is replete with statements regarding the economic stagnation of the downtown central business district. Real estate officer Mark Brammer submitted a list of twenty-two businesses that have, in recent years, relocated from the four-block area between 11 North Michigan and 300 South Michigan, and he further noted that four others have announced their intentions to relocate. A review submitted by Nicholas Jannotta of the Real Estate Research Corp. of Chicago, Illinois demonstrates the declining share of the retail dollar going to the central business district. There was testimony of the lack of willing purchasers for property already acquired by the Redevelopment Commission . . . . On the basis of the record of the hearing, and in particular the evidence noted above, the court concludes that there was substantial evidence of a 'lack of development (and a) cessation of growth' which have made the area described as blighted 'under current conditions undesirable for or impossible of normal development and occupancy.' " (Quoting IC § 18-7-7-3.)

The record in the case at bar supports the finding of the trial court.

Second, appellants urge reversal for the failure of the Commission to consider housing for displaced residents, as required by IC § 18-7-7-13. The three Commissioners who testified at the trial stated that consideration was given, albeit the subject was not discussed formally at the hearing or at Commission meetings. The trial court found this testimony, along with Paragraph 4 of Resolution 540 referring to relocation payments, is sufficient evidence to support the conclusion that displacement was in fact considered by the Commission. Appellants have not sustained their burden to prove to the contrary.

Third, appellants contend the Commission contravened IC § 18-7-7-12 by failing to make an investigation to see if the blight could be corrected by "regulatory processes, or by the ordinary operations of private enterprise." The trial court on this issue considered the evidence previously discussed regarding the finding of blight. In addition to the two professional studies and the testimony of the Department's real estate officer as to the relocation of businesses in the area, there is also testimony in the record that the Commission has offered several properties it has acquired for sale for the purpose of private development, but that it has been able to find very few...