Scalambrino v. Town of Michiana Shores
| Decision Date | 20 April 2009 |
| Docket Number | No. 46A03-0807-CV-342.,46A03-0807-CV-342. |
| Parties | Bruce C. SCALAMBRINO, Carole K. Towne, Claudia Langman, Thomas W. Hayes, Diana Rigas, Wilson Troup, Steven Vargas, Nancy Vargas, Lorna Chronis, Bunny Fisher, David Heckman, and Paul Parenteau, Appellants-Plaintiffs, v. TOWN OF MICHIANA SHORES, Joan Lewis, in her individual capacity and her representative capacity as Michiana Shores Town Council President, Jean V. Poulard, in his representative capacity as Michiana Shores Town Council Vice President, Richard Pliske, in his representative capacity as Michiana Shores Town Councilman, Richard Young in his individual capacity and in his representative capacity as Michiana Shores Town Councilman, Steve Millick, in his individual capacity and in his representative capacity as Michiana Shores Clerk/Treasurer, Robert Horning, in his representative capacity as Michiana Shores Building Commissioner, John Bauer, in his representative capacity as Michiana Shores Assistant Building Commissioner, T-Mobile Central, LLC and T-Mobile USA, Inc., Appellees-Defendants. |
| Court | Indiana Appellate Court |
Matthew J. Hagenow, Newby, Lewis, Kaminski & Jones, LLP, La Porte, IN, Attorney for Appellants.
Jeffrey F. Gunning, Pinkerton and Friedman, P.C., Munster, IN, Attorney for Appellees Town of Michiana Shores, Joan Lewis, Jean V. Poulard, Richard Pliske, Richard Young, Steve Millick, Robert Horning and John Bauer.
F. Joseph Jaskowiak, Kevin G. Kerr, Hoeppner Wagner & Evans LLP, Valparaiso, IN, Attorneys for Appellees, T-Mobile Central, LLC and T-Mobile USA, Inc.
Bruce Scalambrino and the other town-resident plaintiffs appeal the trial court's entry of summary judgment on counts I through IV and VI of their second amended complaint in favor of Michiana Shores ("the Town") and T-Mobile.1 Scalambrino raises a single issue for our review; whether the trial court erred when it entered summary judgment in favor of T-Mobile and the Town. Concluding that the Town validly authorized the site lease and amended its zoning ordinance and zoning map to allow for the construction of the cell tower, we affirm.
In early 2006, T-Mobile approached the Town about the possibility of locating a cell tower on Town-owned property. On August 20, 2006, T-Mobile submitted a proposed site lease for property located at 513 El Portal Road near the town garage ("the Property"). On September 1, 2006, T-Mobile requested that the Town sign an authorization agreement to allow T-Mobile's architects and engineers to enter the Property to begin preparing a design for the proposed cell tower. On October 10, 2006, the Town Council met and apparently authorized the Town to enter into a site lease by a simple vote. On October 12, 2006, T-Mobile applied for a building permit for the construction of the cell tower. The following day, the Town requested a variance from the zoning ordinance to allow the construction.
The Town apparently realized that it had not followed the proper statutory procedures required to lease municipal property. As a result, the Town began taking the necessary steps to comply with the statutes. At the November 14, 2006, Town Council meeting, the Town passed Resolution 2006-02. The resolution authorized the Town to proceed under Indiana Code section 36-1-11-12, the alternate request for proposals procedure, rather than section 36-1-11-10, the normal bidding procedure. The resolution was made retroactively effective to November 1, 2006. On November 6, 2006, the building commissioner issued an opinion letter, which seems to state that the cell tower would not violate the existing zoning ordinance.
On October 31, 2006, the Town sent T-Mobile notice of a public hearing, to be held during the November 14, 2006 Town Council meeting, on the issue of leasing property for the construction of a cell tower. On November 2, 2006, the Town published notice of the public hearing in the local newspaper. On November 3, 2006, the Town published a notice of request for proposals for a site lease agreement for the purpose of constructing a cell tower. The Town published a second notice of request for proposals on November 11, 2006.
At the Town Council meeting, the Town accepted T-Mobile's proposed site lease agreement as the only proposal submitted. The following day, the Town signed the site lease and the building commissioner issued a building permit for the construction of the cell tower. On December 12, 2006, the Town signed an addendum to the site lease. T-Mobile, however, did not sign the site lease until February 28, 2007.
On December 15, 2006, Scalambrino filed his initial complaint including four counts: (I) request for a temporary restraining order ("TRO") preventing the construction of the cell tower; (II) request for a preliminary injunction for the same purpose; (III) request for a declaratory judgment that the construction of the cell tower violates the Town's municipal code and is prohibited; and (IV) request for a permanent injunction preventing the construction of the cell tower or any other structure that violates the Town's municipal code. That same day, the trial court held a hearing on and denied Scalambrino's request for a TRO. On December 29, 2006, the trial court ordered T-Mobile to be joined as an indispensible party to the complaint, and on January 17, 2007, Scalambrino filed his first amended complaint adding T-Mobile as a defendant.
Around March 26, 2007, the Town sent notice of a Plan Commission meeting, to be held on March 31, 2007, to consider amendments to the zoning ordinance and zoning map. The Town mailed notices to all landowners adjacent to the properties at issue and published notice of the meeting in a town newsletter mailed to all residential home-owners. On March 31, and April 3, 2007, the Plan Commission held public hearings on Ordinance 2007-02, an amendment to the zoning ordinance to create a governmental zone, and Ordinance 2007-03, an amendment to the zoning map to create a governmental zone. Following the public hearing, the Plan Commission approved the two ordinances and certified them to the Town Council.
The Town Council met on April 10, 2007 and passed both ordinances on first and second readings. Subsequently, the Town Council enacted the ordinances at its May 8, 2007 meeting. On May 18, 2007, with leave of the trial court, Scalambrino amended his complaint in light of the new ordinances adding count V, alleging impermissible use of public funds,3 and count VI, requesting a declaratory judgment that Ordinances 2007-02 and 2007-03 are illegal and void.
On December 14, 2007, T-Mobile filed a motion for summary judgment, which the Town joined on February 1, 2008. The trial court held a hearing on the motion on April 4, 2008 and granted summary judgment in favor of the Town and T-Mobile on counts I, II, III, IV, and VI on June 20, 2008. Scalambrino now appeals.
When reviewing a trial court's entry of summary judgment, we are bound by the same standard as the trial court. Plaza Group Props., LLC v. Spencer County Plan Comm'n, 877 N.E.2d 877, 884 (Ind. Ct.App.2007). Summary judgment is appropriate only where the evidence shows that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Ind. Trial Rule 56(C). The moving party bears the burden of making a prima facie showing that no genuine issues of material fact exist and that it is entitled to judgment as a matter of law. Plaza Group, 877 N.E.2d at 883-84. A factual issue is genuine when it is not capable of being conclusively foreclosed by reference to the undisputed facts and is material when its existence facilitates the resolution of an issue in the case, Id. All facts alleged by the nonmoving party must be accepted as true and all evidence construed in its favor. Id. However, the trial court's decision to grant a motion for summary judgment comes to us cloaked with a presumption of validity and the appellant has the burden of persuading us that the decision is erroneous. Id.
Counts I through IV of Scalambrino's second amended complaint address the Town's actions in entering into a site lease with T-Mobile for the purpose of constructing a cell tower. Count VI, on the other hand, addresses the validity of the zoning ordinance amendments. We address the site lease and the zoning amendments separately below.
A town council may lease property rather than sell, transfer, or exchange it if it determines that a lease is in the best interest of the town. Ind.Code § 36-1-11-10. Normally, the process of leasing property involves having the property appraised and accepting bids from prospective lessees. See id. However, a town council may choose the alternative, request for proposals method if it makes a written determination that the use of the bidding process is not feasible. Ind.Code § 36-1-11-12. The written determination must include the town council's reasons for determining that the bidding process is not feasible. Id.
The request for proposals must include all of the following:
(A) The factors or criteria that will be used in evaluating the proposals, including a statement that:
(i) the property may not be leased to a person who is ineligible under section 16 of this chapter[4]; and
(ii) a proposal submitted by a trust (as defined in IC 30-4-1-1(a)) must identify each beneficiary of the trust and each settlor empowered to revoke or modify the trust.
(B) A statement concerning the relative importance of price and the other evaluation factors.
(C) A statement concerning whether the proposal must be accompanied by a certified check or other evidence of financial responsibility.
(D) A statement concerning whether discussions may be conducted with the offerors for the purpose of clarification to assure full understanding of,...
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S.B.-L. v. Ind. Dep't of Child Servs. (In re S.L.)
...a trial court's failure to follow the requirements of the statute to any party other than the DCS. See Scalambrino v. Town of Michiana Shores, 904 N.E.2d 673, 680 (Ind. Ct. App. 2009) (holding the enumeration of certain things in a statute implies the exclusion of all others"). Thus, even i......
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S.L. v. Ind. Dep't of Child Servs.
...on a trial court's failure to follow the requirements of the statute to any party other than the DCS. See Scalambrino v. Town of Michiana Shores, 904 N.E.2d 673, 680 (Ind.Ct.App.2009) (holding the enumeration of certain things in a statute implies the exclusion of all others”). Thus, even i......