Pitts v. Mills

• Decision Date: 16 September 1975
• Docket Number: No. 1--674A91,1--674A91
• Parties: Jayne L. PITTS et al., Appellants (Plaintiffs below), v. Louis MILLS et al., Appellees (Defendants below).
• Court: Indiana Appellate Court

Page 897

333 N.E.2d 897

165 Ind.App. 646

Jayne L. PITTS et al., Appellants (Plaintiffs below), v. Louis MILLS et al., Appellees (Defendants below).

No. 1--674A91.

Court of Appeals of Indiana, First District.

Sept. 16, 1975.

Frank E. Spencer, Indianapolis, for appellants.

Allen F. Wharry, Hollingsworth, Martin & Buchanan, Peter L. Obremskey, Parr, Richey, Obremskey, Pedersen & Morton, Lebanon, for appellees.

LYBROOK, Judge.

Plaintiffs-appellants Jayne L. Pitts et al. appeal from the dismissal of their complaint for declaratory judgment and mandate against defendants-appellees Louis Mills et al. The following issues are presented for review:

(1) Whether the trial court erred in dismissing plaintiffs' action for mandate.

(2) Whether the trial court erred in dismissing plaintiffs' action for declaratory judgment.

(3) Whether the trial court abused its discretion in denying plaintiffs' motion for leave of court to amend complaint by adding a second paragraph.

The dispute herein concerns plaintiffs' challenge to the act of defendant Town Board of Zionsville in annexing to the town an eight acre tract, and the contemporaneous act of the Zionsville Plan Commission in recommending to the Town Board that the tract be zoned for multifamily dwellings. Plaintiffs' disagreement with the above acts of defendants resulted in the filing of a complaint for declaratory judgment and mandate on July 20, 1972. Omitting formal parts, the complaint reads in pertinent part as follows:

'COMPLAINT AND PETITION FOR DECLARATORY JUDGMENT AND MANDATE

Comes now the plaintiffs and for their cause of action allege and say:

1. That all of the plaintiffs herein are residents and taxpayers of Eagle Township either residing in or near the Town of Zionsville.

2. That the defendant, Town of Town of Zionsville and the defendant, Town of Zionsville and the defendant, Zionsville Plan Commission has attempted to re-zone an eight acre tract . . .

3. That the procedure leading to annexation of said territory by the Town Board of Zionsville was arbitrary, capricious and illegal.

4. That the Zionsville Plan Commission which conducted zoning hearings on the subject property prior to annexation proceedings improperly conducted such hearings and improperly recommended zoning for multi-family dwellings to the Zionsville Town Board.

5. That the Zionsville Plan Commission subsequent to a public hearing on zoning for said property, held a private meeting with the petitioners for zoning and annexation to review proposed plans for the apartment development, and excluded remonstrators against the project, who were not and never have been allowed to view any plans or prints for said project.

6. That the Town of Zionsville does not have a complete and accurate survey of the portion of the town's boundaries allegedly adjoining the property in question and therefore may not annex same until and unless said survey is completed.

7. That the plaintiffs will suffer significant decrease in the value of their property should the apartment project be constructed at said location in that it adjoins and abuts single-family dwellings and is an intrusion in an area of exclusively single-family dwellings.

8. The plaintiffs herein deem themselves aggrieved and injuriously affected by the annexation and re-zoning and petition the court to deny the annexation under Indiana law (Burns Ann.Ind.Stat. § 48--722(a)) in that the resident population of the area sought to be annexed is not equal to at least three (3) persons for each acre of land included in its boundaries, and that the land is not zoned for commercial, business or industrial use, and that 60% of the land is not subdivided. The plaintiffs would show the Court that, in fact, the area sought to be annexed has no residents thereon, and hence pursuant to state law may not be annexed.

9. That under the applicable Indiana Statute it would appear that no person besides the land owner who seeks annexation may remonstrate in the Courts, in this instance, (in that the area sought to be annexed has no resident population) and that the statute governing remonstrators, therefore, is faulty and affords the plaintiffs no apparent right to redress their grievances, and therefore that these plaintiffs petition this Court to allow a hearing on the merits of the complaint under the laws of equity, granting all aggrieved persons a full and proper hearing.

10. That defendants would show this court that under current Indiana statutes requiring residence within the territory sought to be annexed as a basis for remonstrance, that in a case such as this one with no residents within said territory and only one owner who is also the petitioning party desiring annexation, that defendants' (sic) rights, privileges and immunities are abridged. That defendants (sic) petition this court for a declaratory judgment that said Indiana statute is unconstitutional in its application to these plaintiffs in that it is violative of the 14th Amendment to the Constitution of the United States of America, in that procedural due process is not accorded said plaintiffs under a strict interpretation of said statute, or in the alternative that this court find plaintiffs to be proper and lawful remonstrators within the contemplation of the statute.

11. That defendants clearly violated the laws of the State of Indiana in seeking to annex land with no residents thereon, in contravention of the applicable Indiana statute governing annexation.

12. That defendants wholly failed to comply with Indiana statute law governing procedures of annexation.

15. That plaintiffs petition for a mandate from the Court ordering the Zionsville Plan Commission to confine itself to its lawfully proscribed (sic) jurisdiction of passing on questions of zoning of land within the Town of Zionsville at the time petitions of re-zoning are submitted, and in addition, mandating it to open all hearings on matters of zoning to the public.

17. That plaintiffs assert that the apartment project authorized for said land will create inordinate traffic problems and will result in a net tax loss for the community in that said project will cost the community more in school and other civic costs that it will produce in tax revenue.

18. That plaintiffs assert that said multi-family dwelling project violates the community's master planning concepts in that said area is designated for single family dwellings in a community planning study prepared for the use of defendants and others.

WHEREFORE, plaintiffs pray that this Court issue an order denying the annexation of the said property to the Town of Zionsville; that this Court issue an order denying the zoning of said property to the Zionsville Plan Commission; . . . that the Court render a declaratory judgment finding that the applicable Indiana Statute indicating that defendants (sic) who are not residents of the territory sought to be annexed would be non-suited is unconstitutional and violates the 14th Amendment to the Constitution of the United States or in the alternative that the Court render a declaratory judgment finding that the plaintiffs are proper and lawful remonstrators within the contemplation of the applicable Indiana Statute; that the Court mandate the Zionsville Plan Commission to confine itself to its legally prescribed duties and mandating it to open all of its hearings on matters of zoning to the public; and that this Court award plaintiffs their costs and for all other proper relief in the premises.'

Thereafter, defendants successfully sought a change of judge, and filed motions to dismiss plaintiff's complaint on the following grounds:

(1) lack of personal jurisdiction over plaintiffs;

(2) lack of subject matter jurisdiction, and

(3) failure of plaintiffs to state a claim upon which relief can be granted.

On April 6, 1973, the trial court sustained defendant's motions to dismiss plaintiffs' complaint. Thereafter on August 29, 1973, plaintiffs sought leave of court to amend their complaint by adding a second paragraph which was denied by the trial court. On December 4, 1973, the trial court sustained defendants' motion for judgment and entered judgment dismissing plaintiffs' complaint.

I.

As apparent from both the caption and body of plaintiffs' complaint, the relief sought was two-fold. Initially, plaintiffs sought to have themselves declared proper and lawful remonstrators within the contemplation of the applicable statutes or in the alternative to have those statutes declared unconstitutional as operating in violation of the due process clause of the Fourteenth Amendment. The propriety of such a request shall be addressed later.

Secondly, plaintiffs sought an order mandating Zionsville Plan Commission to perform its legally prescribed duties. Such a request is governed by IC 1971, 34--1--58--1 (Burns Code Ed.), which provides:

'34--1--58--1 Actions by complaint and summons substituted for writ of mandate in circuit and superior courts--When mandate and prohibition issued by Supreme Court and Appellate Court.--Writs of mandate in the circuit and superior courts of this state are hereby abolished, and the causes of action heretofore remedied by means of such writs shall hereafter exist and be remedied by means of complaint and summons in the name of the state on relation of the party in interest, in the circuit, superior and probate courts of this state, as other civil actions, and shall be known as actions for mandate. . . .' (Emphasis added.)

It is clear from the above statute that an action for mandate may only be prosecuted in the name of the state on relation of the party in interest. Where this is not done, dismissal of the action is appropriate. Supreme Court, Etc. on Relation of DeMoss etc. v. Daviess Circuit Court (1962), 243 Ind. 182, 183 N.E.2d 607; Meek v. Baker (1951), 229 Ind. 543, 99 N.E.2d 426; Casey v. Murray (1951), 229 Ind. 545, 9 N.E.2d 426; Board of Public Safety of the City of Muncie et al. v. Walling...