Knutson v. State ex rel. Seberger, 29647

• Docket Nº: No. 29647
• Citation: 239 Ind. 656, 157 N.E.2d 469
• Case Date: April 07, 1959
• Court: Supreme Court of Indiana

Page 469

157 N.E.2d 469 239 Ind. 656 John E. KNUTSON, James M. Hilbrich, Joseph R. Dubeck, as
Board of Trustees of the Town of Dyer, Lake
County, Appellants,
v.
STATE of Indiana ex rel. Ray E. SEBERGER & Irene M.
Seberger, his wife, Lake County Subdividers, Inc.,
an Indiana Corporation, Appellees. No. 29647. Supreme Court of Indiana. April 7, 1959.

[239 Ind. 658]

Page 470

Lowell E. Enslen, Theodore M. Gemberling and Owen W. Crumpacker of Crumpacker, Gemberling & Enslen, Hammond, for appellants.

Wendell Hamacher, Crown Point, for appellees.

ACHOR, Judge.

This is an appeal from an action in mandate brought by a subdivider and his wife against the Town Board of Trustees of the

Page 471

town of Dyer, Indiana, to require the approval of a plat of a proposed subdivision of land within the town. The action was filed on October 2, 1956, after the Town Board had disapproved the plat as presented. The trial court ordered the Town Board to approve the plat. From that decree this appeal was taken.

It is appellants' position that the approval of such plat was discretionary with the Town Board and therefore that order of mandate was contrary to law.

It is the general rule, as contended by appellants, that writs of mandate will not be granted to control the discretionary action of a public officer, board or commission. ¹ However, the law is also well established by a long line of decisions that public officials, boards and commissions may be mandated to perform ministerial acts where there is a clear legal duty to perform such acts. ²

[239 Ind. 659] The basic question presented by this appeal is whether under the circumstances here presented there was a clear duty on the part of the Town Board of Dyer to approve or disapprove the plat as submitted as a ministerial act.

Cities and towns have been granted broad authority by the state which created them to control the development of areas in and adjacent to them. However, public policy requires that this authority be exercised in a standardized and clearly defined manner so as to enable both the landowner and the municipality to act with assurance and authority regarding the development of such areas. It is for this reason that although public policy requires municipal control of such development, nevertheless the authority of a town to deny a landowner the right to develop his property by refusing to approve the plat of such development is by statute made to rest upon specific standards of a statute or implementing ordinance. ³ Thereafter the approval or disapproval of the plat on the basis of the controlling standards is a ministerial act. ⁴

[239 Ind. 660]

Page 472

Therefore, we first consider the pertinent statutes and their implementing ordinances, as cited and relied upon by the parties.

Section 48-801, Burns' 1950 Repl. [Acts 1905, ch. 129, § 246, p. 219] provides in part as follows:

'Any person who may lay off * * * any subdivision or any lots or lands within the limits of any city or town, shall, previous to the sale of any lots in such town, addition or subdivision, cause to be recorded in the recorder's office of the proper county a correct plat of such town, addition or subdivision, with the public grounds, streets and alleys properly marked, showing the length and width of each, and with the lots regularly numbered and the size thereof marked upon the plat. * * *'

Section 48-802 provides in part as follows:

'Whenever a plat is made of any lots or lands as an addition to any city or town, or as a subdivision of any lots or lands within such city or town, such plat shall be submitted for approval of * * * the board of trustees in any town, * * * before the same is offered for record in the recorder's office. Such * * * board of trustees, after examination duly made, shall approve or disapprove such plat. Such * * * board of trustees may require the streets and alleys, therein shown, to be as wide as, and to be coterminous with, the streets and alleys of that part of the city or town to which it adjoins. * * *'

[239 Ind. 661] Furthermore, under the Planning and Zoning statute [§§ 53-701-53-789, Burns' 1951 Repl. (and 1957 Supp.)] cities and towns were authorized to adopt planning and zoning ordinances which would, in great detail regulate the development of subdivisons. The statute further provided that upon creation of such Plan Commission and the adoption of such Master Plan, the Plan Commission was vested with authority to 'approve' or 'disapprove' the plats of subdivisions on the basis of the improvements required by the ordinance [§ 53-748]. Under this authority the town of Dyer adopted a subdivision Control Ordinance No. 281, as part of a Master Plan designed to control the future growth of the area under the jurisdiction of a Plan Commission. The ordinance under authority of the statute purported to establish by reference certain standards for the construction of streets, sewers, etc. for subdivisions as a condition precedent to their approval.

However, we are here confronted by the fact that on February 15, 1957, a declaratory judgment was rendered by the Lake Circuit Court which declared that the above subdivision control ordinance was fatally defective ⁵ [239 Ind. 662] and that the Plan Commission of

Page 473

the town of Dyer was not qualified to approve a subdivision plat. No appeal was taken from this judgment and therefore it stands as a final adjudication that the subdivision control ordinance of the town of Dyer, purportedly in effect at the time of this controversy, was void. Therefore, the only authority and standard cited by appellant by which the town board could approve or disapprove the plat submitted was that set forth in §§ 48-801 and 48-802, supra.

Even so, appellant contends that the statute, by its express provision, gave the town board discretionary authority, legislative in character, to 'approve or disapprove' plats, and therefore such action of the board could be reviewed only if fraudulent.

The action of a town board may be legislative or administrative, depending upon the particular circumstances. ⁶ Where, as here, the town board had merely to determine that the plat conformed to specific statutory requirements, then the approval or disapproval of the plat on the basis of such fact was a ministerial act. And, since the controlling statute deals with the exercise of the police power of the state limiting the rights of property owners in the use and control of their properties, the ministerial authority granted by statute will not be extended by implication. Hill v. Review Board, etc., et al., 1953, [239 Ind. 663] 124 Ind.App. 83, 112 N.E.2d 218; State ex rel. Kahler-Ellis Co. v. Cline, 1954, Ohio Com.Pl., 125 N.E.2d 222. See Syl. 2 and 3, 125 N.E.2d at page 224. Therefore, although the town board was generally charged to examine and 'approve or disapprove such plat,' [as submitted in § 48-802, supra] such examination was limited to the specifications set out in the statute. State ex rel. Linthicum v. Board of Commissioners of Vanderburgh County, 1911, 175 Ind. 400, 94 N.E. 716.

Further upon this subject, this court has stated:

'* * * A duty to be performed is none the less ministerial because the person who is required to perform it may have to satisfy himself of the existence of a state of facts under which he is given his right or warrant to perform the required duty. * * *' Board of Com'rs of Jackson County v. State ex rex. Brown, 1897, 147 Ind. 476, 495, 46 N.E. 908, 913.

To the same effect, see Flournoy v. City of Jeffersonville, 1861, 17 Ind. 169, 174.

Here the plat clearly complied with...