Ogden v. Premier Properties, USA, Inc.
| Decision Date | 20 September 2001 |
| Docket Number | No. 82A01-0101-CV-14.,82A01-0101-CV-14. |
| Parties | Carl L. OGDEN and Janice C. Ogden; Phillip L. Offerman and Cynthia A. Offerman; Ronald C. Jarvis and Charles A. Jarvis; Brian H. Maze and Ann R. Maze; Norman W. Fosnaugh; Clarence M. Mann and Martha S. Mann; Marilyn Noah McGinnis, Appellants-Plaintiffs, v. PREMIER PROPERTIES, USA, INC.; The Common Council of the City of Evansville; Evansville Pavilion, LLC, Appellees-Defendants. |
| Court | Indiana Appellate Court |
Leslie C. Shively, Christopher C. Wischer, Larry D. Jukes, Fine & Hatfield, A Professional Corporation, Evansville, IN, Attorneys for Appellants.
James D. Johnson, Rudolph, Fine, Porter & Johnson, LLP, Evansville, IN, Attorney for Appellees Premier Properties USA, Inc., and Evansville Pavilion, LLC.
John A. Hamilton, Barber, Hamilton & Shoulders, Evansville, IN, Attorney for Appellee Common Council of the City of Evansville.
After the Common Council of the City of Evansville ("City Council") approved a certain rezoning request, Carl L. Ogden, Janice C. Ogden, Phillip L. Offerman, Cynthia A. Offerman, Ronald C. Jarvis, Charles A. Jarvis, Brian H. Maze, Ann R. Maze, Norman W. Fosnaugh, Clarence M. Mann, Martha S. Mann, and Marilyn Noah McGinnis ("Neighbors") filed suit against Premier Properties, USA, Inc. ("Developer"), the City Council, and multiple parties who owned the rezoned property in its entirety ("Landowners").1 Neighbors appeal certain of the trial court's pre-trial orders, raising the following restated issues for our review:
I. Whether the trial court erred when it dismissed Neighbors' claim that a written covenant, which Developer introduced at the City Council meeting, was a use and development commitment subject to zoning laws.
II. Whether the trial court erred when it dismissed Neighbors' claim that the City Council illegally contracted away its power to zone the subject property.
III. Whether the trial court properly granted summary judgment to Developer and the City Council on Neighbors' claim that the City Council acted arbitrarily and capriciously when it adopted the ordinance that rezoned the subject property.
We affirm.2
On May 8, 2000, the City Council voted to adopt Ordinance No. R-99-34 ("Ordinance"), which rezoned from residential to commercial certain property located on the corner of Lloyd Expressway and Burkhardt Road. Attempts to rezone the property from residential to commercial began in 1996, when a developer filed a petition to rezone. The Area Plan Commission ("APC") recommended denial of the request to the City Council, and the City Council denied the rezoning petition, which action a trial court subsequently affirmed. In 1997, another petition to rezone the property was filed, but the City Council denied it in 1998. In 1999, Developer initiated a rezoning petition, seeking to rezone the property in order to construct a retail shopping facility. The APC recommended denial of the petition. Developer then amended its petition, and the APC again recommended denial to the City Council. Each rezoning petition included a use and development commitment ("UDC"), which placed restrictions and requirements on the proposed development.
On May 8, 2000, at a duly organized meeting, the City Council considered Developer's petition. At the meeting, Developer introduced a document titled "Covenant" that contained written commitments "in addition to the covenants set forth in the Use and Development Commitment[.]" Record at 824. The Covenant was intended to accommodate the concerns of the adjoining landowners and the City Council. For instance, Developer promised, among other things, to construct berms on two sides of the proposed facility, restrict hours of garbage disposal, and maintain landscaping. Developer also promised to construct improvements to the roads abutting the facility, including adding traffic lanes and turn lanes, and installing a traffic light. The commitments were conditioned upon the City Council approving the Developer's zoning request and were binding on Developer for twenty years. The restrictions in the Covenant were to run with the land in favor of all owners of real estate within a one-mile radius of the subject property. After hearing arguments from Developer and neighboring property owners, and receiving evidence concerning property values and traffic impact, the City Council voted in favor of the petition, adopting the rezoning Ordinance, which incorporated the UDC.3Id. at 305.
Thereafter, Neighbors filed a complaint, pursuant to IC XX-XX-X-X, seeking a declaratory judgment that the Ordinance was void, naming as defendants in the action Developer, the City Council, and Landowners (collectively "Defendants"). Id. at 33-44. Neighbors' third amended complaint asserted four counts: Count I alleged that the Covenant that Developer introduced at the City Council meeting was actually a UDC, which was required to be submitted to the APC for review and recommendation prior to City Council consideration. Because the Covenant was not reviewed by the APC, Neighbors argued that the required statutory procedure was not followed and, consequently, the Ordinance was void. Count II alleged the existence of an illegal contract for zoning, based upon both the terms of the Covenant and the fact that certain members of the City Council met with Developer prior to the May 8 meeting and made statements indicating that they would pass the ordinance. Count III alleged that the rezoning constituted a taking of property. Lastly, Count IV alleged that the City Council acted arbitrarily and capriciously when it passed the Ordinance.
Upon Defendants' motions, the trial court dismissed with prejudice counts I, II and III of the Neighbors' third amended complaint under Ind. Trial Rule 12(B)(6) for failure to state a claim. Because the court had previously granted summary judgment as to count IV of the second amended complaint, it struck Count IV of the third amended complaint, as it was essentially identical to that which had already been dismissed via partial summary judgment. Neighbors appeal the dismissal of Counts I and II of the third amended complaint and the grant of summary judgment on Count IV of the second amended complaint.
Neighbors contend that the trial court erred in granting Defendants' motions to dismiss. A motion to dismiss tests the legal sufficiency of a complaint. Prock v. Town of Danville, 655 N.E.2d 553, 556 (Ind.Ct.App.1995), trans. denied (1996). In reviewing the dismissal of a complaint under T.R. 12(B)(6), the facts alleged in the complaint must be taken as true and only where it appears that under no set of facts could plaintiffs be granted relief is dismissal appropriate. Id. However, only well-pleaded material facts must be taken as admitted. Id. at 560 n. 9. A court should not accept as true allegations that are contradicted by other allegations or exhibits attached to or incorporated in the pleading. Id.
Count I of Neighbors' complaint contends that the Covenant offered at the City Council meeting was actually a UDC subject to applicable zoning laws. The trial court disagreed, finding that the Covenant was not subject to the zoning procedures applicable to UDCs. Consequently, it granted Defendants' motions to dismiss this count of Neighbors' complaint for failure to state a claim.
The City Council is the legislative body with the authority to adopt a zoning ordinance in the City of Evansville. See IC XX-X-X-XXX (legislative body having jurisdiction over the geographic area described in zoning ordinance has exclusive authority to adopt zoning ordinance). Any petition for rezoning must be referred to the APC of Evansville and Vanderburgh County for consideration and recommendation before any final action by the City Council. See IC XX-X-X-XXX(b) (proposal not initiated by plan commission must be referred to commission for consideration and recommendation before legislative body takes any final action). The APC "may permit or require an owner of real estate to make a written commitment concerning the use or development" of the property that is subject to a petition for rezoning. IC XX-X-X-XXX(a). Such a commitment "shall be recorded" and takes effect upon the approval of the zoning related to the commitment. IC XX-X-X-XXX(b). According to IC XX-X-X-XXX(a), local ordinance establishes the procedures governing the creation, approval, modification, and termination of written commitments. In this case, Ordinance 15.153.10.158(I)(2) of the Code of Ordinances of the City of Evansville provides that the City Council cannot consider a UDC until the APC has considered it in its final form. See Appellants' Brief at 10. Here, Neighbors assert that the Covenant was actually a UDC, and local ordinance required APC review prior to City Council consideration. Because Developer presented the Covenant to the City Council without prior APC review, Neighbors argue that the Ordinance is void. We disagree.
Initially, we are not persuaded by Neighbors' argument that no authority exists under either state statute or local ordinance for the consideration of any type of written commitments in conjunction with a rezoning petition other than a UDC. Appellants' Brief at 11 and Reply Brief at 2. Both state statute and Evansville local ordinance recognize covenants as another type of written commitment restricting land use. IC XX-X-X-XXX(d), -615(d) (); EVANSVILLE, IND., MUNICIPAL ORDINANCES § 15.153.01.004 (1989) (). Neighbors suggest that these statutes merely...
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