Hoosier Outdoor v. Rbl Management

• Decision Date: 21 March 2006
• Docket Number: No. 53A01-0508-CV-368.,53A01-0508-CV-368.
• Citation: 844 N.E.2d 157
• Parties: HOOSIER OUTDOOR ADVERTISING CORPORATION, Appellant-Intervenor, and Monroe County, Indiana, Monroe County Board of Zoning Appeals, Non-Party on Appeal/Respondent, v. RBL MANAGEMENT, INC., Appellee-Petitioner.
• Court: Indiana Appellate Court

844 N.E.2d 157

HOOSIER OUTDOOR ADVERTISING CORPORATION, Appellant-Intervenor, and Monroe County, Indiana, Monroe County Board of Zoning Appeals, Non-Party on Appeal/Respondent, v. RBL MANAGEMENT, INC., Appellee-Petitioner.

No. 53A01-0508-CV-368.

Court of Appeals of Indiana.

March 21, 2006.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Rory O'Bryan, Keith Beall, Harrison & Moberly, LLP, Carmel, Richard L. Mostak, Lowell, John H. Shean, Bloomington, for Appellant.

Robert C. Price, Mary M. Runnells, Price & Runnells, Thomas A. Berry, Debra Davis, Berry & Domer, Bloomington, for Appellee.

OPINION

BARNES, Judge.

Case Summary

Hoosier Outdoor Advertising Corporation ("Hoosier") appeals the trial court's judgment reversing decisions of the Monroe County Board of Zoning Appeals ("BZA"), which had granted Hoosier permission to erect and display certain billboards while denying similar permission to RBL Management, Inc. ("RBL"). We reverse.

Issue

The restated issue before us is whether the trial court properly reversed the BZA's decisions.

Facts

The facts most favorable to the BZA's rulings are that since the 1930s, certain property owned by the Stuart family on State Road Business 37, north of Bloomington, had been used as a location for off-premises signs, i.e. billboards. In 1989, the Stuart family entered into a lease with Hoosier for use of portions of the property as off-premises sign locations. The lease provided in part:

It is agreed that all structures, equipment, materials, and fixtures shall remain the property of lessee and lessee is granted reasonable time to remove the sign structure(s) after the termination of this agreement.

* * * * *

This agreement shall be binding upon the heirs, executors, personal representatives, successors and assigns for the parties hereto. . . .

* * * * *

Hoosier will remove all posts & concrete when signs are removed.

App. pp. 32-34.

In 1996, Monroe County enacted a new zoning ordinance (the Monroe County Zoning Ordinance or "MCZO") governing unincorporated areas of the county that curtailed the use of off-premises signs. Specifically, the new ordinance generally prohibited all off-premises signs, with two exceptions. First, it allowed the continued nonconforming use of off-premises signs at their current locations. Second, it allowed the relocation of off-premises signs from their current location to a location within a specified zoning district, namely the LB, GB, LI, or HI districts. The Stuart property was not located in one of these districts.

In 1998, after the written lease expired, Hoosier agreed to continue leasing the property on a year-to-year basis, with annual rent of $6,495 due each September 15. In 2003, the Stuart family entered negotiations to sell the property to RBL. Hoosier was informed that its lease would not be renewed after September 15, 2003. However, Hoosier continued using the property after that date. In December 2003, Hoosier paid the Stuart family $2,165, which represented pro rata payment for four months of the annual rent that was due on September 15, 2003.

RBL was aware that there was a lease between the Stuarts and Hoosier for the sign locations, but it never obtained or read a copy of the lease. RBL expected to use the Stuart property for the placement of off-premises signs. On January 12, 2004, the sale of the property from the Stuarts to RBL closed. Hoosier learned of the sale in February 2004. Hoosier completely removed its sign/billboard structures, at RBL's insistence, by September 24, 2004.

Meanwhile, in May 2004, RBL applied to the Monroe County Planning Commission ("the Commission") for permits to replace the existing Hoosier sign/billboard structures with another company's entirely new structures. Also in May 2004, Hoosier applied to the Commission for permission to relocate their sign/billboard structures to properties located in the LB, GB, LI, and/or HI zoning districts. Under the MCZO, at most only either Hoosier's or RBL's application could be granted because there could be no increase in the total number of off-premises signs in unincorporated Monroe County.

On August 26, 2004, the Commission denied Hoosier's application to relocate its signs. On October 26, 2004, the Commission approved RBL's application to place new sign/billboard structures on the former Stuart property. Hoosier appealed both of these determinations to the BZA. On December 1, 2004, the BZA reversed the Commission's decisions in two decisions of its own, concluding that Hoosier was entitled to relocate its sign/billboard structures and that RBL could not erect new sign/billboard structures on its property. RBL filed a petition for certiorari with the trial court, identifying the BZA and Monroe County as respondents; Hoosier was permitted to intervene in the action. On July 15, 2005, the trial court reversed the BZA and effectively reinstated the Commission's decisions. Hoosier now appeals.

Analysis

At the outset, we address a procedural issue that RBL has raised throughout its brief, and that is the BZA's decision not to participate actively in this appeal. RBL contends that this decision means the BZA now accepts that its original ruling was incorrect and, therefore, we should not employ our usual deference to agency decisionmaking. We have denied RBL's motion to supplement the trial court record to include the minutes of a BZA meeting, postdating the trial court's ruling in this case, where the BZA voted not to participate in this appeal. We have chosen not to strike those portions of RBL's brief that refer to the BZA not participating in this appeal because that fact is apparent from the face of the docket in this case. The BZA's non-participation has no relevance to our standard of review, however, contrary to RBL's argument.

First, we note the general rule that on appeal we must consider only those matters contained in the record below, unless extraneous material is needed in order to determine whether an appeal is moot. In re Commitment of J.B., 766 N.E.2d 795, 798 (Ind.Ct.App.2002). This court has held that where a party is permitted to intervene in a lawsuit under Indiana Trial Rule 24, that party may appeal a decision adverse to its interests even if the original party or parties decide to forego the pursuit of an appeal; the case is not moot. See City of New Haven v. Chemical Waste Mgmt. of Indiana, 685 N.E.2d 97, 102 (Ind.Ct.App.1997), trans. dismissed. "Generally, one who has been allowed to intervene in an action may appeal from subsequent orders in the action." Id. at 101. "An intervenor is treated as if it was an original party and has equal standing with the parties." Mercantile Nat'l Bank of Indiana v. Teamsters Union Local No. 142 Pension Fund, 668 N.E.2d 1269, 1271 (Ind.Ct.App.1996). There is no question in this case that Hoosier properly intervened in the certiorari action and no question that the trial court's decision was adverse to its interests. As a proper intervenor, Hoosier is entitled to precisely the same standard of review in this case as if the BZA itself had made an appearance on appeal.

Second, the BZA's failure to participate actively in this appeal does not mean it is not a party on appeal. Under Indiana Appellate Rule 17(A), "A party of record in the trial court or Administrative Agency shall be a party on appeal." "The rule operates of its own force to make all parties in the trial court parties on appeal, whether such parties participate actively or not." State v. Nixon, 270 Ind. 192, 194, 384 N.E.2d 152, 153 (1979) (addressing substantially identically-worded predecessor to current Appellate Rule 17(A)); see also Nance v. Miami Sand & Gravel, LLC, 825 N.E.2d 826, 833 n. 3 (Ind.Ct.App. 2005), trans. denied. Thus, regardless of the BZA's non-participation in this appeal, we review the trial court's reversal of its decisions by applying the same standard of review as if it has participated.

Before turning to the merits, we also pause to comment on the tone of RBL's brief, which we find in multiple places to be argumentative and disrespectful to opposing counsel. RBL cites to In re Guardianship of Hickman, 805 N.E.2d 808 (Ind.Ct.App.2004), trans. denied, and uses the opportunity to cast Hoosier's current president in an irrelevant negative light by stating, "Hickman is worth reading for a number of reasons, one of which is that Hoosier's current president Leo Hickman became embroiled in a guardianship dispute with his siblings over control of his mother's estate."¹ Appellee's Br. p. 27. Repeatedly, RBL refers to Hoosier's litigation attempting to gain permission to relocate its signs to be a "scheme," which obviously carries a negative connotation of Hoosier being motivated by some nefarious purpose other than pursuing its legitimate interests. See id. at 6, 7, 14, 16, 43, 44, 45. In another passage, RBL clearly implies that Hoosier "possessed an ill-intent" and "concoct[ed] some cockamamie theory under which the signs could be replaced or moved. . . ." Id. at 32. Elsewhere, Hoosier's position is described as "oddly obtuse if not foolhardy. . . ." Id. at 34. RBL also accuses Hoosier of playing a "shell game" and making "nonsensical" arguments. Id. at 39. Such vitriol is inappropriate and not appreciated by this court, nor does it constitute effective appellate advocacy. See Wright v. State, 772 N.E.2d 449, 453 n. 1 (Ind.Ct.App.2002). The use of impertinent, intemperate, scandalous, or vituperative language in an appellate brief opens it to being stricken by this court. See id. We have chosen not to do so here, but admonish counsel to adopt a level of professionalism in any subsequent dealings with this court.

"When reviewing a decision of a zoning board, we are bound by the same standard of review as the certiorari court." S & S Enterprises, Inc. v. Marion County Bd. of Zoning Appeals, 788 N.E.2d 485, 489 (Ind.Ct.App.2003), trans. denied. Indiana Code Section 4-21.5-5-14 establishes the...