Town of Schererville v. Vavrus

• Decision Date: 21 April 1973
• Citation: 389 N.E.2d 346,180 Ind.App. 500
• Parties: The TOWN OF SCHERERVILLE, Indiana, Defendant-Appellant, v. Charles VAVRUS and Gary National Bank, as Trustee Under Trust Agreement Dated
• Court: Indiana Appellate Court

Page 346

389 N.E.2d 346

180 Ind.App. 500

The TOWN OF SCHERERVILLE, Indiana, Defendant-Appellant, v. Charles VAVRUS and Gary National Bank, as Trustee Under Trust Agreement Dated April 21, 1973, known as Trust Number P5267, Plaintiffs-Appellees.

No. 3-776A180.

Court of Appeals of Indiana, Third District.

May 16, 1979.

Rehearing Denied June 28, 1979.

Kenneth D. Reed, Hammond, for defendant-appellant

Richard A. Mayer, Spangler, Jennings, Spangler & Dougherty, Gary, for plaintiffs-appellees.

HOFFMAN, Judge.

Defendant-appellant Town of Schererville, Indiana (Town) appeals from reversal at trial of the Town's Board of Trustees (Board) denial of a zoning reclassification to plaintiffs-appellees Charles Vavrus and Associates (Vavrus). The evidence disclosed the following circumstances: Appellee's parcel of real estate, located in Schererville, Indiana, was zoned R-3 multi-family residential which permitted use of the land for apartment buildings. Vavrus, on December 29, 1972, filed a petition with the Town for approval of its preliminary plans reclassifying the land to R-3 Planned Unit Development

                (PUD).  1 The PUD classification would permit a higher density than the standard R-3 multi-family residential zoning.  On January 2, 1973, at the public hearing for the reclassification request, the Town Plan Commission reviewed the preliminary plans submitted by Vavrus which revealed a proposed nine building apartment complex including picnic areas, parking, swimming pool and a clubhouse.  Vavrus discussed the design and layout of its development with the Plan Commission and answered its questions regarding access roadways, fire hydrants, lights, sewers, and parking.  At that same meeting, the Plan Commission voted to recommend approval of the reclassification to the Board.  During its regular meeting on February 14, 1973, the Board voted unanimously against the recommendation and rejected the Vavrus reclassification petition.  On February 19, 1974, appellee instituted suit in the Lake County Circuit Court seeking a declaratory judgment that the action of the Board in denying the petition be declared arbitrary and capricious and that the Board be ordered to approve the preliminary plans.  After a bench trial, the court made and entered the following Special Findings of Fact and Conclusions of Law
                

SPECIAL FINDINGS OF FACT

"1. This Court has jurisdiction of the parties, the subject matter of this action and the power to hear and determine the issues presented for trial.

"2. Plaintiff is a professional land developer engaged mainly in the business of constructing multi-family apartment developments.

"3. Defendant is a municipal corporation organized as a civil Town under and pursuant to the Statutes of the State of Indiana, located in Lake County, Indiana. Defendant is governed by a four-member Board of Trustees and has organized and existing a seven-member Plan Commission under and pursuant to the laws of the State of Indiana and said defendant's Zoning Ordinance Number 490.

"4. Plaintiff is the owner of the real estate described in plaintiff's complaint, which property is located within the corporate boundaries of the defendant Town of Schererville, Indiana, in the Southeast quadrant of the U.S. Highway 30 and Austin Road.

"5. Said property is now and at all times relevant to this lawsuit was zoned and assigned district use classification and regulations as R-3 Multi-Family Residential under and pursuant to defendant Town's Master Plan, Zoning Ordinance Number 490 and official Zoning Map.

"6. The defendant Town's Zoning Ordinance Number 490 contains certain guidelines and standards for the changing of zoning classifications to Planned Unit Developments and said guidelines and standards are more specifically set forth on Pages 79 and 80 of the defendant Town's Zoning Ordinance Number 490, which was identified and admitted into evidence at the time of trial as plaintiff's exhibit 'A'.

"7. Prior to the 14th day of February, 1973, the plaintiff properly instituted and processed his petition for reclassification of the subject land from R-3 Multi-family Residential to R-3 Planned Unit Development under defendant's Zoning Ordinance Number 490.

"8. A public hearing was conducted as required by law on the plaintiff's petition for a zoning reclassification of January 2, 1973, before the defendant Town's Plan Commission and proper notice was given of said meeting as required by Indiana law.

"9. On January 2, 1973, the defendant Town's Plan Commission found that the plaintiff had met all the requirements, criteria and standards contained in Sections 1, 2 and 3 of Article 18 of the defendant Town's Zoning Ordinance Number 490 and on the same date voted five in favor and none against (one member having abstained and one member having been absent) to approve the petition and recommend to the defendant Town's Board of Trustees that the subject land be reclassified from R-3 Multi-family Residential to R-3 Planned Unit Development.

"10. Prior to the 14th day of February, 1973, plaintiff stipulated and agreed to all requests and demands made by the defendant Town for public and utility improvements required to be constructed at his cost to service the subject land and to make such improvements accessible to and for the development of adjoining lands.

"11. Prior to the 14th day of February, 1973, plaintiff had done all things required by defendant Town's Zoning Ordinance Number 490, in order to seek the benefits of a reclassification under Article 18 of said Zoning Ordinance Number 490.

"12. On the 14th day of February, 1973, the defendant Town's Board of Trustees voted unanimously to deny and overrule the favorable recommendation of the defendant Town's Plan Commission and not to grant the petition of plaintiff to reclassify the subject land from R-3 Multi-family Residential to R-3 Planned Unit Development.

"13. The defendant Town's Board of Trustees in denying the plaintiff's petition, for reclassification of the subject land from R-3 Multi-family Residential to R-3 Planned Unit Development did not apply and follow the standards and criteria as contained in Sections 1, 2 and 3 of Article 18 of the defendant Town's Zoning Ordinance Number 490.

"14. Subsequent to the 14th day of February, 1973, the defendant Town's Board of Trustees did grant and approve a reclassification of another parcel of land to be developed by another developer from R-3 Multi-family Residential to R-3 Planned Unit Development, commonly known as Gomez-Kaluf Unit Development.

"15. Both the plaintiff's project and the Gomez-Kaluf project were basically the same with no apparent differences as to standards and criteria as set forth in the defendant Town's Zoning Ordinance Number 490.

"16. On the 14th day of February, 1973, the defendant Town, acting by and through its Board of Trustees did improperly, unfairly, arbitrarily, capriciously and discriminatorily deny the plaintiff's petition for a reclassification of the subject land from R-3 Multi-family Residential to R-3 Planned Unit Development and said denial does prevent the plaintiff the highest and best use of his property."

CONCLUSIONS OF LAW

"The court having made and entered its Special Findings of Fact, now concludes the law to be as follows:

"1. The Court has jurisdiction of the parties, the subject matter of this action, and the power to hear and decide the issues presented in this case.

"2. The law is with the plaintiff and against the defendant.

"3. Plaintiff has the right to use the subject land as contemplated and proposed in his application, preliminary plan and reclassification of the subject land from R-3 Multi-family Residential to R-3 Planned Unit Development as approved and recommended by the Town's Plan Commission and as denied by the defendant Town's Board of Trustees.

"4. Plaintiff is entitled to a Judgment ordering the defendant Town's Board of Trustees to grant the plaintiff's petition for such zoning reclassification and to permit further development and construction by the plaintiff on the subject land in accordance with the provisions contained in Article 18 of defendant Town's Zoning Ordinance Number 490 in effect on the 14th day of February, 1973."

Appellant's first allegation of error is that the Plan Commission did not have jurisdiction to hold a public hearing on the reclassification petition because appellee failed to give adequate notice of its application for a reclassification. IC 1971, 18-7-5-44 (Burns Code Ed.) requires that all zoning amendments occurring after the adoption of a master plan be made according to the procedures set forth in IC 1971, 18-7-5-39 to 18-7-5-42 (Burns Code Ed.), inclusive. The pertinent statute, IC 1971, 18-7-5-39 provides as follows:

"Notice and hearing on adoption of master plan Publication. Prior to the adoption of a master plan, the commission shall give notice and hold a public hearing on the plan and a proposed ordinance for its enforcement.

"At least ten (10) days prior to the date set for hearing, the commission shall publish in a newspaper of general circulation in the city or county a notice of the time and place of hearing."

The record reveals that notice of a public hearing on Vavrus's reclassification petition was published in the Hammond Times on December 20, 1972, notifying the public of a hearing to be held on January 2, 1973, at 7:30 P.M. before the Schererville Plan Commission for the purpose of considering a petition for reclassification of the subject land (legal description omitted here) from R-3 to PUD.

Appellant contends that since the reclassification petition and the preliminary plans were filed with the Town Clerk a mere four days prior to the public hearing, notice of the hearing was of no use to the public because nothing was on file to examine and review until December 29, 1972. Insofar as the statute does not require a petition or preliminary plan be filed ten days prior to the public hearing, appellant's...