Neswick v. Board of Com'rs of Newton County

• Decision Date: 23 September 1981
• Docket Number: No. 3-381A85,3-381A85
• Citation: 426 N.E.2d 50
• Parties: Russell NESWICK, Appellant-Plaintiff, v. BOARD OF COMMISSIONERS OF NEWTON COUNTY, Appellee-Defendant.
• Court: Indiana Appellate Court

Page 50

426 N.E.2d 50

Russell NESWICK, Appellant-Plaintiff, v. BOARD OF COMMISSIONERS OF NEWTON COUNTY, Appellee-Defendant.

No. 3-381A85.

Court of Appeals of Indiana, Fourth District.

Sept. 23, 1981.

John Hyde, East Chicago, for appellant-plaintiff.

Stephen C. Bower, Kentland, for appellee-defendant.

CHIPMAN, Presiding Judge.

This appeal is from the action of the Newton Circuit Court dismissing Russel Neswick's complaint which attacked a county zoning ordinance giving the plan commission power to review and revoke the business zone classification of his property.

The ordinance rezoned from agriculture to business 80 acres owned by Neswick and provided:

"This land use will be approved for any endeavor which would be a compatable use as a recreation facility. The approval will be reviewed at the regular Plan Commission meeting in the month of January of each year. If it is found that the use will substantially serve the public convenience and welfare and will not be injurious to the appropriate use of the neighboring property, the use will be approved for one more year."

Neswick sought a declaratory judgment pursuant to Ind. Code 34-4-10-1, asking the court to find the ordinance illegal, ultra vires, unconstitutional and inequitable.

Upon a motion by the defendants, Board of Commissioners of Newton County (Commissioners), the court dismissed the case for lack of subject matter jurisdiction under Indiana Rules of Procedure, Trial Rule 12(B)(1). The trial court entered the following conclusions of fact and law:

"Comes now the Court and having taken under consideration the Motion of the Board of Commissioners of Newton County to dismiss the Complaint, the Court now finds as follows:

1) That Russell Neswick has filed a suit for declaratory judgment on January 31, 1980, against the Board of Commissioners of Newton County, challenging the legislative act of rezoning of his property by a Newton County Ordinance dated October 16, 1978.

2) The Court finds that the October 16, 1978, Ordinance approving the rezoning on the Plaintiff's property attached a condition to the rezoning, and that said condition provided for a conditional change of land use with the Newton County Planning Commission reviewing the matter in the month of January of each year.

3) The Court finds that on January 22, 1980, the Newton County Plan Commission, pursuant to the ordinance, refused to approve the business zoning for another year.

4) The Court finds that the Plaintiff has filed suit seeking to have this Court declare that the condition attached to the rezoning ordinance of October 16, 1978, is null and void.

5) The Court finds that the action of the Board of Commissioners of Newton County in its ordinance of October 16, 1978, is a legislative act.

6) The Court further finds that the Plaintiff has made no allegations that any complaint or challenge was made to the October 16, 1978 ordinance until the Newton County Plan Commission exercised the review granted by the ordinance.

The Court now enters the following conclusions of law:

1) That the actions of the Board of Commissioners of Newton County, in its ordinance of October 16, 1978, is a legislative action and can only be reviewed if there are valid allegations of unconstitutionality or illegality. The Court concludes that the Plaintiff's complaint seeks to question the wisdom and propriety of the attachment of a condition to a rezoning ordinance and that such attack is not permitted since it is within the legislative discretion of the Board of Commissioners of Newton County. See Christy v. Board of Commissioners of Porter County (1973), 156 Ind.App. 268, 295 N.E.2d 849.

2) The Court further concludes that as a matter of law, the Plaintiff has accepted the benefits of the rezoning petition with the conditions attached thereto and as such is not now permitted to challenge the validity of the conditions. See J-Marion Co. Inc. v. County of Sacramento, etc., 142 Cal.Rptr. 723, 76 Cal.App.3d 517 (1977); Psyhogios v. Village of Skokie, (4 Ill.App.3d 186) 280 N.E.2d 552 (1972); Alperin v. Mayor and Tp. Com. of Middletown Tp., 91 N.J.Super. 190, 219 A.2d 628 (1966); North Plainfield v. Perone, (54 N.J.Super. 1), 148 A.2d 50 (1959); Skipjack Cove Marina, Inc. v. County Commissioners for Cecil County et al., (252 Md. 440), 250 A.2d 260 (1969); Zweifel Manufacturing Corp. v. City of Peoria, 11 Ill.2d 489, 144 N.E.2d 593 (1957); and 82 Am.Jur.2d, Zoning and Planning, Section 263.

The Court concludes as a matter of law that the Plaintiff's suit is not proper because it is seeking review of legislative act for which judicial review is not permitted and for the additional reason that the Plaintiff had in fact accepted the rezoning on the basis of the condition attached and can not now attack such condition.

IT IS THEREFORE, ORDERED, ADJUDGED AND DECREED by the Newton Circuit Court that the Complaint filed by Russell Neswick against the Board of Commissioners of Newton County on January 31, 1980, in the Newton Circuit Court as Cause No. C80-40 should and hereby is dismissed.

We reverse.

I.

Neswick asks us to consider this challenge of the ordinance on its merits and presents us with 20 issues, most of which address questions never presented to the trial court. In so doing, Neswick comes perilously close to dismissal of this appeal for failure to frame any appealable issues. From our own analysis of the record, only two issues exist at this stage of the litigation:

Whether the trial court erred in finding a lack of subject matter jurisdiction pursuant to Indiana Rules of Procedure, Trial Rule 12(B)(1), and whether the court erred in finding Neswick should be estopped from challenging the validity of the ordinance?

Both Neswick's motion to correct errors and his brief touch upon these issues obliquely, yet we think sufficiently to preserve them, especially in light of the Commissioners' failure to object to the manner in which the case has been presented to this court.

II.

The first issue is whether the trial court had subject matter jurisdiction to review the ordinance enacted by the Commissioners. Our Ind. Code 17-1-14-24 provides for appeal to the Circuit Court of all decisions by county commissioners, but those appeals are limited by case law to only the commissioners' "judicial decisions." ¹ Any act by the commissioners which is administrative, ministerial, discretionary or legislative in nature is not reviewable. Board of Commissioners of Dearborn County v. Droege, (1946) 224 Ind. 446, 68 N.E.2d 650; Farley v. Board of Commissioners of Hamilton County, (1890) 126 Ind. 468, 26 N.E. 174; Indiana Waste v. Board of Commissioners of...