Krimendahl v. Common Council of City of Noblesville
| Decision Date | 17 March 1971 |
| Docket Number | No. 30920,30920 |
| Citation | 267 N.E.2d 547,256 Ind. 191 |
| Parties | Herbert F. KRIMENDAHL, Member of Noblesville Plan Commission of the City of Noblesville, Indiana, etc., George F. Snyder and Charlotte J. Snyder, Russel G. Jones and Mary T. Jones, J. W. Speicher and Meta Speicher, Joe B. Weaver, and Joel A. Wilmoth, and Gertrude B. Hirschman, Appellants, v. COMMON COUNCIL OF the CITY OF NOBLESVILLE, Indiana, Ben Berg, Ray Harrison, Sam Jerrell, Howard Kenley, Jr., and Charles Meredith, Individually and as Constituent Members of and constituting the Common Council of the City of Noblesville, Indiana, Carl David Gatewood and Betty Jo Gatewood, Indianapolis Airport Authority, a Municipal Corporation of the Municipality of Indianapolis, with a Statutory District Confined to Marion County, Indiana, Appellees. |
| Court | Indiana Supreme Court |
Arthur H. Gemmer, Indianapolis, for appellants.
Albert W. Ewbank, Indianapolis, for appellees.
The appellants, by their suit below, sought to have an amendatory rezoning ordinance declared invalid on two grounds: First, that the procedures followed by the local plan commission and the city council in considering and enacting the amending ordinance were not in conformity with the Planning and Zoning Act of 1947, I.C. 1971, 18--7--5--1 through 18--7--5--99, being Burns §§ 53--701 through 53--795, and, second, that the amendatory ordinance and the Planning and Zoning Act are unconstitutional and void, as in violation of Art. 1, § 12, of the Indiana Constitution and the Fourteenth Amendment to the United States Constitution in that they, respectively, were enacted, and authorized enactment of re-zoning ordinances, without procedural due process.
The trial court entered summary judgment on motion of the defendants. We affirm the trial court in all respects.
In this case the Indianapolis Airport Authority presented its petition to the Noblesville Plan Commission requesting that a large tract of land be re-zoned to permit the operation of a public municipal airport. At that time a private airport was being operated on the land. The Indianapolis Airport Authority entered into a contract to purchase the tract of land from the owners Gatewood in the event the re-zoning was accomplished. The Gatewoods filed the following 'Consent' by which they joined in the petition:
'CONSENT
The undersigned, Carl David Gatewood and Betty Jo Gatewood, husband and wife, owners of the real estate herein described, join and consent to the above petition for amendment of zoning ordinance requesting that the above-described property, heretofore operated as a private airport, be zoned MA, which would permit the operation of a public airport municipally owned and operated.
S/_ _
Carl David Gatewood
S/ _ _
Betty Jo Gatewood'
The Plan Commission published notice of hearing on the petition. Appellants appeared at the hearing and stated their objections to the re-zoning petition. The public hearing was held and the Plan Commission, consisting of a total of eleven members voted six in favor and five against the petition. Whereupon the president of the Commission ruled that the petition had been denied by reason of its having failed to receive sufficient majority as required by the Robert's Rules of Order. The majority objected to this unusual ruling, but the Commission then went on to other business. No resolution approving the petition and recommending its adoption to the City Council of Noblesville was ever signed.
Thereafter the secretary of the Plan Commission forwarded a copy of the proceedings and the unsigned resolution to the city council indicating that the vote had been in favor of the amendment by a vote of six to five, and that the president had ruled that it had not been adopted. Whereupon the city council enacted the proposed amending ordinance by a vote of four to one, the said council consisting of a total of five members.
Appellants argue that the amendment procedures set forth in I.C. 1971, 18--7--5--64, 18--7--5--65 and 18--7--5--66, being Burns' §§ 53--763, 53--764 and 53--765, could not lawfully be used by the Commission and the council, and were 'inapplicable' on two grounds: First, the petitioners did not own 50% of the area involved in the petition as required under Burns' § 53--764, and second, the petition was filed directly with the Plan Commission and was not 'first presented' to the clerk of the city council as required under Burns' § 53--765. These procedures for amending the general zoning ordinance are as follows:
'53--764. * * * Petitions, duly signed, may be presented to the clerk of the city council or the county auditor requesting an amendment, supplement or change of the regulations of the zoning ordinance by:
1. The plan commission.
2. By the owners of fifty per centum (50%) or more of the area involved in the petition.'
'53--765. * * * Amendments, supplements or changes of the regulations of the zoning ordinance shall be considered as amendments to the master plan. Any proposed ordinance for the amendment, supplement, change or repeal of the zoning ordinance not originating from petition of the plan commission shall be referred to the plan commission for consideration and report before any final action is taken by the city council or the board of county commissioners.
Prior to the submission to the city council or the board of county commissioners of a plan commission petition or a report on a proposed ordinance referred to it for an amendment, supplement, change or repeal of the zoning ordinance the plan commission shall give notice and hold a public hearing in the manner prescribed for adoption of a master plan in section 37 (§ 53--737) of this act.
In the event the report of the plan commission is adverse to a proposed ordinance referred to it, the ordinance shall not be passed except by an affirmative vote of at least seventy-five per centum (75%) of the members of the city council or a unanimous affirmative vote of the board of county commissioners.
Failure of the city council or the board of county commissioners to pass such proposed ordinance by said affirmative vote within ninety (90) days after its rejection by the plan commission shall constitute rejection of the proposed ordinance and it shall not be reconsidered by the planning commission, city council or county commissioners until the expiration of one (1) year after the date of its original rejection by the plan commission.'
On the first point we hold that 'the area involved in the petition' means the area described in the petition which is sought to be re-zoned. Penn v. Metropolitan Plan Comm. of Marion County (1967), 141 Ind.App. 387, 228 N.E.2d 25. In the case at bar this requirement is satisfied by the petition having been made by the conditional vendee of the entire tract sought to be re-zoned, joined in and consented to in writing by the conditional vendors who hold the legal title to the entire tract. On point two, appellant is correct that the petition was first filed in the plan commission, however, in light of the statutory requirement that the clerk of the city council, upon receipt of a petition, must immediately forward it to the plan commission, we deem this departure from the statutory procedure to be of insufficient magnitude to warrant voiding an otherwise valid ordinance. We, therefore, hold that Burns' §§ 53--763, 53--764 and 53--765, contained the statutory procedure which the plan commission and city council were required to follow in the consideration and enactment of this amendatory zoning ordinance.
Appellant contends that the city council had no power to enact the amending ordinance since the plan commission had not 'passed, adopted and recommended' it to the city council as required by I.C.1971, 18--7--5--39, 18--7--5--40, 18--7--5--41 and 18--7--5--44, being Burns' §§...
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