Town of Ellettsville v. Despirito

• Decision Date: 25 May 2017
• Docket Number: Court of Appeals Case No. 53A01-1611-PL-2559
• Parties: TOWN OF ELLETTSVILLE, Indiana Plan Commission and Richland Convenience Store Partners, LLC, Appellants-Respondents, v. Joseph V. DESPIRITO, Appellee-Petitioner
• Court: Indiana Appellate Court

78 N.E.3d 666

TOWN OF ELLETTSVILLE, Indiana Plan Commission and Richland Convenience Store Partners, LLC, Appellants-Respondents,

v.Joseph V. DESPIRITO, Appellee-Petitioner

Court of Appeals Case No. 53A01-1611-PL-2559

Court of Appeals of Indiana.

May 25, 2017

Attorney for Appellant Town of Ellettsville, Indiana Plan Commission : Darla S. Brown, Sturgeon & Brown, P.C., Bloomington, Indiana

Attorneys for Appellant Richland Convenience Store Partners, LLC : Andrew P. Sheff, Sheff Law Office, Carina M. de la Torre, The de la Torre Law Office LLC Indianapolis, Indiana

Attorneys for Appellee : Michael Rabinowitch, Maureen E. Ward, Wooden McLaughlin, LLP, Indianapolis, Indiana

Crone, Judge.

Case Summary

[1] Richland Convenience Store Partners, LLC ("RCSP"), and Joseph V. DeSpirito own adjoining lots in an Ellettsville subdivision. RCSP filed a petition with the Town of Ellettsville Plan Commission to relocate a utility easement on RCSP's property, which contains a private sewer line that serves DeSpirito's optometry practice, and amend the subdivision plat accordingly. RCSP proposed to replace and relocate the sewer line at its own expense. The Plan Commission approved RCSP's petition over DeSpirito's objection. DeSpirito filed a petition for judicial review of the Plan Commission's decision. DeSpirito, RCSP, and the Plan Commission filed motions for summary judgment. The trial court granted DeSpirito's motion and denied the other motions, concluding that the Plan Commission erred in approving RCSP's petition because DeSpirito had not consented to the relocation of the easement.

[2] The Plan Commission and RCSP now appeal, arguing that the trial court's conclusion is erroneous. We agree and therefore reverse and remand with instructions to enter summary judgment for the Plan Commission and RCSP.

Facts and Procedural History

[3] The relevant facts are undisputed. Swifty Oil ("Swifty") once owned the land now owned by RCSP and DeSpirito. In 1996, Swifty submitted a plat for the Hukill Subdivision, which was approved by the Monroe County Plan Commission and recorded that same year.¹ The subdivision has two adjoining lots—Lot 1 to the west and Lot 2 to the east—that are bordered on the north by State Road 46. The plat states, "There are utility easements, drainage easements and building setback lines as shown on the plat, upon which no structure may be erected or maintained." Appellants' App. Vol. 2 at 127. The plat shows the approximate location of what is labeled as a fifteen-foot-wide utility easement running east-west across the center of Lot 1.² The plat also shows a building and gas pumps north of the utility easement and no structures south of the easement; this gas station was owned by Swifty and ceased operating at some point. The plat contains a metes and bounds description of the property's boundaries but does not contain a metes and bounds description of the utility easement. Finally, the plat shows what is labeled as an ingress/egress easement in the northeast corner of Lot 1 adjoining State Road 46 and Lot 2, which does not have direct access to State Road 46.

[4] In June 1996, Swifty conveyed Lot 2 to Marlin Hukill by warranty deed, which granted Hukill and his successors the right to use the ingress/egress easement on Lot 1 to access Lot 2. In August 1996, Swifty granted Hukill and his successors a second ingress/egress easement on Lot 1, to be used only if the other ingress/egress easement "is cut off from access to State Road 46." Appellants' App. Vol. 3 at 38. The grant contains a metes and bounds description of the second easement.

[5] In 2011, DeSpirito obtained Lot 2 from Bayview Loan Servicing by warranty deed, which contains a metes and bounds description of Lot 2 and of the second ingress/egress easement mentioned above.

[6] In 2014, RCSP obtained Lot 1 from Swifty by warranty deed, subject to "Covenants, Conditions, Restrictions, Utility and Drainage easements and setback lines and any amendments thereto as disclosed on the recorded plat of subdivision." Appellants' App. Vol. 2 at 69.

[7] At some point, the Town of Ellettsville annexed Lot 1. In June 2015, RCSP filed a petition with the Plan Commission to relocate the utility easement on Lot 1 and amend the subdivision plat accordingly. In September 2015, after a hearing, the Plan Commission issued a decision that reads in relevant part as follows:

Applications—Findings

....

8. [Lot 1] was recently annexed, and is officially within the jurisdiction of the Town of Ellettsville. The utility easement contains approximately fifteen (15) feet of Smithville [Telephone] cable and a private utility (sewer) line. The utility easement which runs east-west through the center of the property is believed to have been established in order to provide sewer service to Lot 2.

9. The Petitioners are proposing to relocate the easement between 15 and 20 feet to the south. The Petitioners are also proposing to replace the private line with a new line, and have stated they will absorb the cost of the line replacement. The relocation of the easement would allow any new construction to be built deeper in the lot than would currently be permitted. The replacement of the private sewer line would cause only minimal disruption to Lot 2, but would allow for sewer usage indefinitely.

10. The Petitioners are planning to redevelop the site, formerly a Swifty station, and the current utility easement significantly restricts the buildable area of the lot.

Findings and Conclusion

....

5. The Board accepts as fact the following:

a. The replacement of the private sewer line would cause only minimal disruption to Lot 2, but would allow for sewer usage indefinitely.

b. Petitioners have stated that they will absorb the cost of the line replacement.

c. The purpose of the proposed plat amendment is to increase the buildable area of the lot.

d. The current location of the easement dissects the lot into two smaller pieces and restricts access to some of the buildable area of the lot.

e. The proposed relocation for the utility easement represents the best location to allow for future development of the site and maintain the functionality of the sewer line.

f. There has been no evidence presented which demonstrates that there would be any detrimental effects to the other property in the subdivision.

g. No provision in the Town Code prohibits moving utility easements.

h. The proposed plat amendment satisfies the Town of Ellettsville's subdivision control ordinance.

6. Those [sic] following individuals presented testimony in opposition to the plat amendment or testified as to concerns regarding the proposed new development: Dr. DeSpirito, Rusty Turner, and Susan Chen. Rusty Turner and Susan Chen had concerns about the additional traffic that might be generated and the safety of individuals driving in and out of the property.

....

8. Those individuals who presented testimony in opposition to the proposed plat amendment presented no evidence that the proposed amendment fails to meet the Town's zoning ordinance or that the proposed plat amendment poses detrimental effects to the other property in the subdivision.

9. The Plan Commission finds that the redevelopment of the former Swifty station would be in the best interest of the Town of Ellettsville. The property is currently zoned C-3 and has two access points from State Road 46, and is positioned for a wide variety of commercial development options.

Based on the above findings, the Plan Commission concludes and finds that the Petitioners' application meets all of the requirements as set forth by the Town of Ellettsville Zoning Ordinance, and the proposed plant [sic] amendment is hereby granted.

The Planning Director's staff report dated August 12, 2015 shall be adopted as part of the Findings of Fact.

Id . at 164-67.

[8] DeSpirito filed a petition for judicial review of the Plan Commission's decision and also requested declaratory and injunctive relief. In October 2015, the parties entered into an agreed preliminary injunction, whereby the Plan Commission and RCSP agreed not to take any action on the Plan Commission's decision until further order of the trial court. The parties later filed motions for summary judgment. In October 2016, after a hearing, the trial court issued an order that reads in relevant part as follows:

4. There is no evidence that the 15 foot utility easement that runs east west from Lot 2 across Lot 1 is a public utility easement. The only reasonable conclusion, and the Town so found, is that the 15 foot utility easement that runs east west from Lot 2 across Lot 1 is a private utility easement for the benefit of Lot 2.

5. RCSP wants to build on its Lot 1. The Town found in its Findings and Conclusions that the purpose of moving the easement was to increase the buildable area of Lot 1. Since the easement cannot be built on, due to the 1996 Plat restriction, and for obvious reasons, RCSP wants to move Dr. DeSpirito's 15 foot utility easement to another location on RCSP's Lot 1, at RCSP's expense.

6. The location of easements, if located in a specific place, cannot be changed by either party without the consent of the other. Thomas v. McCoy (1903), 30 Ind.App. 555, 66 N.E. 700 ; Ritchey v. Welsh [ (1898) ], 149 Ind. 214, 48 N.E. 1031, 40 L.R.A. 105 ; Jones, Easements § 337, cited in Shedd v. American Maize Products Co. , 60 Ind.App. 146, 154-155 (Ind. Ct. App. 1915) [, trans. denied .]

7. Dr. DeSpirito's easement is located on the plat. It is particular and clear. It cannot be changed by either party without the consent of the other. RCSP seems to acknowledge this principal [sic], as it sought an amendment to the plat, rather than unilaterally relocating the pipe in the easement across its Lot 1.

8. § 153.003 of the Ellettsville Subdivision Regulations provides that "All parties who have a financial interest in the subdivision and subsequent development must be on record as agreeing with the submission provisions in the application to the Plan Commission."

9.

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