Schenkel v. Allen County Plan Commission

Decision Date14 July 1980
Docket NumberNo. 3-679A172,3-679A172
Citation407 N.E.2d 265
PartiesSusan R. SCHENKEL, Ruth J. Bowser, et. al., Appellants (Petitioners Below), v. ALLEN COUNTY PLAN COMMISSION and the Aboite Corporation, Appellees (Respondents Below).
CourtIndiana Appellate Court

Robert L. Thompson, Jr., John C. Koryl, Peebles, Thompson, Rogers & Hamilton, Fort Wayne, for appellants.

George E. Fruechtenicht, Thomas M. Gallmeyer, Rothberg, Gallmeyer, Fruechtenicht & Logan, Fort Wayne, Paul C. Raver, Sr., Raver, Federoff & Lowenstein, Fort Wayne, for appellees.

STATON, Judge.

In April of 1978, the Aboite Corporation filed preliminary plats and development plans with the Allen County Plan Commission wherein it detailed the proposed establishment of subdivisions to be named "Copper Hill" and "Oak Borough." According to the plans, the subdivisions were to occupy adjacent land parcels and constituted Aboite's schematic components for the development of an area it described as "Coventry." Construction in the area was to occur in phases; ultimate completion of the Coventry project was estimated to require ten years. Following a public hearing on the twin proposals, the Plan Commission approved the preliminary plats and accompanying development plans.

Thereafter, Aboite filed its final plat and development plan for "Section 1" of the proposed "Copper Hill" subdivision. The Plan Commission held a public hearing on the final proposal and voted to approve the plat and development plan for Section 1 of Copper Hill.

Landowners adjoining the area encompassed by the subdivisions then filed two separate Petitions for Writs of Certiorari in the Allen Circuit Court. In one petition, the landowners challenged the Commission's approval of the preliminary plats and development plans; in the other, the landowners questioned the Commission's approval of the final plat and development plan for Section 1 of "Copper Hill." The Allen Circuit Court issued the Writs and consolidated the two causes. Following its examination of the evidence presented to the Plan Commission, the Court granted co-respondents' (Aboite and the Plan Commission) Motion to Dismiss the causes.

Landowners here appeal from that decision. Among the issues raised for our consideration are the following: 1

(1) Whether the trial court erred when it failed to remand the causes to the Plan Commission for a statement of the findings of fact upon which the Commission's decision was based?

(2) Whether the trial court erred when it failed to state its findings of fact?

(3) Whether the trial court erred in its conclusion that the evidence was sufficient to justify the Commission's decision?

The trial court is affirmed in part and reversed in part. The court's dismissal of the challenge to the Commission's approval of the preliminary plats and plans is affirmed. That decision lacks the element of finality necessary to ripen it for judicial review. The trial court's dismissal of the challenge to the Commission's approval of the final plat and plan is reversed, and that cause is remanded to the trial court for findings of fact.

I. Preliminary Plats and Plans

We note at the outset that the applicability of the doctrine of finality as a bar to judicial review of the Commission's approval of the preliminary plats and plans was not raised by the parties on appeal. Nevertheless, it is incumbent upon this Court to invoke the import of the doctrine, for we are required to affirm the action of the trial court if it is sustainable on any theory. Indiana & Michigan Electric Company v. Schnuck (1973), 260 Ind. 632, 298 N.E.2d 436, 439; Lewis v. Burke (1968), 143 Ind.App. 696, 242 N.E.2d 382.

Judicial review of actions taken by Plan Commissions is governed by IC 1971, 18-7-5-57, Ind.Ann.Stat. § 53-755 (Burns Code Ed.), 2 which reads in pertinent part:

"A decision of the commission may be reviewed by certiorari procedure the same as that providing for the appeal of zoning cases from the decision of the board of zoning appeals."

Our concern here is focused on what constitutes a "decision" for purposes of the statute.

Generally, Plan Commissions are empowered by the provisions of IC 1971, 18-7-5-28(7) & (8), Ind.Ann.Stat. § 53-728 (Burns Code Ed.), 3 to make two types of determinations: (1) "recommendations", and (2) "decisions". As the terms imply, "recommendations" occur in those areas of local zoning machinations wherein the Commission serves only an advisory function, "decisions" are made by the Commission when it acts in matters where by statute it enjoys ultimate authority. See generally, Wildwood Park Community Ass'n v. Fort Wayne Plan Comm'n (1979), Ind.App., 396 N.E.2d 678, 686-80 (Petition for transfer pending). Being advisory in nature, recommendations lack the element of finality necessary to judicial review; a complainant cannot suffer actual harm until the administrative process is consummated and the zoning order is finalized. Downing v. Board of Zoning Appeals of Whitley Co. (1971), 149 Ind.App. 687, 274 N.E.2d 542, 545.

For that reason, our legislature wisely excluded recommendations from the scope of matters within the subject matter jurisdiction of the courts. IC 1971, 18-7-5-57, supra; City Plan Com'n, City of Hammond, Lake Cty. v. Pielet (1975), 167 Ind.App. 324, 338 N.E.2d 648, 650; McGraw v. Marion County Plan Commission (1961), 131 Ind.App. 686, 174 N.E.2d 757, 760. Only "decisions", being final in nature, were made susceptible to judicial review.

The scope of matters wherein Plan Commissions exercise ultimate authority is detailed in subsection eight (8) of IC 1971, 18-7-5-28, supra. There, the legislature granted Plan Commissions the following powers:

"(8) To render decisions concerning and to approve:

"(a) plots or replots of subdivisions;

"(b) development plans for residential, commercial and industrial uses."

Pursuant to subsection eight (8), the approval of the preliminary plats and development plans for "Copper Hill" and "Oak Borough" rested within the exclusive province of the Allen County Plan Commission. Ostensibly, its decisions to approve the preliminary schemes are subject to judicial review under the provisions of IC 1971, 18-7-5-57, supra.

We conclude, however, that the Commission's approval of the preliminary plats and plans is not amenable to judicial review. Under Allen County's zoning scheme as this case readily indicates construction of the contemplated subdivisions could not begin until the two-step administrative process culminated in the Commission's approval of Aboite's final plats and accompanying development plans. Until that contingency is satisfied, the right of Aboite to construct its proposed subdivisions remains undetermined and appellants Schenkel and Bowser can suffer no actual harm. Were this Court to review the Commission's preliminary and tentative approval of the subdivisions, we would only needlessly delay the administrative process. Downing v. Board of Zoning Appeals of Whitley Co. (1971), 149 Ind.App. 687, 274 N.E.2d 542, 545.

We thus refuse to invoke a literal application of the statutory term "decision", as it appears in IC 1971, 18-7-5-28(8) and 18-7-5-57, supra. While a Plan Commission's approval of a preliminary plat and plan is a "decision" within the letter of IC 1971, 18-7-5-28(8), supra, it cannot be said to constitute a "decision" within the purpose and spirit of IC 1971, 18-7-5-57, supra. Just as our Courts are reluctant to review the interim steps of an administrative body, so did our legislature intend judicial review to be limited to those determinations which represent a consummation of the administrative process. Id.

We are not without support for our conclusion. In Downing v. Board of Zoning Appeals of Whitley Co., supra, the Court was confronted with a request to review a preliminary determination of a Board of Zoning Appeals which, as here, had neither settled the controversy at issue nor affected the substantive rights of the parties before the Board. The Court refused to review the Board's preliminary decision on the basis that the determination lacked the finality which the legislature intended by its inclusion of the term "decision" within IC 1971, 18-7-5-87, Ind.Ann.Stat. § 53-783 (Burns Code Ed.), the statute governing judicial review of actions taken by Boards of Zoning Appeals. 4 The legislature has expressly indicated its intent that the procedural processes for the review of actions taken by Plan Commissions and Boards of Zoning Appeals be identical. IC 1971, 18-7-5-57, supra. We conclude, as did the Court in Wright v. Marion County Plan Commission (1960), 130 Ind.App. 203, 163 N.E.2d 259, 262, that the legislature's intent to establish identical review procedures encompasses the substantive aspect of subject matter jurisdiction necessary to obtain judicial review.

The trial court did not err in dismissing appellants' petition directed at the Commission's approval of the various preliminary plats and accompanying development plans; those decisions lack the finality necessary to ripen them for judicial review. The same cannot be said, however, of the Commission's decision to approve the final plat and development plan for Section 1 of the proposed "Copper Hill" subdivision. 5

II. Approval of Final Plat

In IC 1971, 18-7-5-49, Ind.Ann.Stat. § 53-747 (Burns Code Ed.), our legislature defined the prerequisites to approval of a subdivision plat. The statute reads in pertinent part:

"18-7-5-49 (53-747). Provisions of plat necessary for approval Specifications by commission. In determining whether an application for approval shall be granted, the commission shall determine if the plat provides for:

"1. Coordination of subdivision streets with existing and planned streets or highways.

"2. Coordination with and extension of facilities included in the master plan.

"3. Establishment of minimum width, depth, and area of lots within the projected subdivision.

"4. Distribution of population...

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