TW Thom Const., Inc. v. City of Jeffersonville

• Decision Date: 29 December 1999
• Docket Number: No. 10A01-9906-CV-187.,10A01-9906-CV-187.
• Parties: T.W. THOM CONSTRUCTION, INC., Appellant-Plaintiff, v. CITY OF JEFFERSONVILLE and Hyun T. Lee, Appellees-Defendants.
• Court: Indiana Appellate Court

721 N.E.2d 319

T.W. THOM CONSTRUCTION, INC., Appellant-Plaintiff, v. CITY OF JEFFERSONVILLE and Hyun T. Lee, Appellees-Defendants.

No. 10A01-9906-CV-187.

Court of Appeals of Indiana.

December 29, 1999.

Richard L. Mattox, Derrick H. Wilson, Mattox & Mattox, New Albany, Indiana, Attorneys for Appellant.

Michael A. Gillenwater, Jeffersonville, Indiana, Attorney for Appellees.

OPINION

NAJAM, Judge

STATEMENT OF THE CASE

T.W. Thom Construction, Inc. ("Thom") appeals from a summary judgment in favor of Hyun Lee ("Lee"). Thom and Lee own adjoining parcels of real property in the City of Jeffersonville ("City"). This action involves a dispute over Lee's construction of a mobile home park. In entering summary judgment for Lee, the trial court concluded that the City's zoning ordinances allow construction of a mobile home park on Lee's property once the Indiana State Department of Health ("ISDH") has approved the project. The court directed the entry of judgment for Lee under Indiana Trial Rule 54(B).¹ The issue presented for our review is whether the City's zoning ordinances authorize a mobile home park in a general business zone.²

We reverse and remand.

FACTS AND PROCEDURAL HISTORY

Thom is constructing a residential subdivision. Lee is building a 42-lot mobile home park adjacent to Thom's development. In June of 1996, ISDH issued a construction permit for the park. No local zoning approval was required, although the City's Board of Public Works and Safety granted Lee's request for a sanitary sewer tap as specified in the ISDH permit. Shortly after Lee began construction, Thom filed an action in the Clark Circuit Court for a preliminary injunction and declaratory judgment to prohibit Lee from proceeding with this development. In its complaint, Thom alleged that Lee had failed to comply with local zoning regulations before starting construction. In response, Lee moved for summary judgment claiming that only ISDH approval was required. The trial court granted summary judgment in favor of Lee. Thom now appeals.³

DISCUSSION AND DECISION

I. Exhaustion Of Administrative Remedies

In deciding this matter, we must first determine whether Thom failed to exhaust its administrative remedies before filing an action to prohibit Lee from constructing a mobile home park. For the first time on appeal, Lee contends that this court is without jurisdiction to grant any relief requested by Thom because Thom failed to exhaust the remedies under Section 156.107(A) of the Zoning Code which provides that "any decision by the Building Commissioner in the enforcement of the Building Code may be appealed to the Board of Zoning Appeals by any person claiming to be adversely affected by such decision." Generally speaking, if an administrative remedy is available, it must be pursued before the claimant is allowed access to the courts. Spencer v. State, 520 N.E.2d 106, 108 (Ind.Ct.App.1988), trans. denied. A party's failure to exhaust administrative remedies deprives the trial court of subject matter jurisdiction. Greenbrier Hills, Inc. v. Boes, 473 N.E.2d 1040, 1042 (Ind.Ct.App.1985). Unlike jurisdiction of a particular case, subject matter jurisdiction cannot be waived. Schafer v. Sellersburg Town Council, 714 N.E.2d 212, 215 (Ind.Ct.App.1999), trans. denied.

In Area Plan Comm'n of Evansville v. Major, 720 N.E.2d 391, 1999 WL 1075967 (Ind.Ct.App. Nov.30, 1999), we held that Major, a landowner, had failed to exhaust available administrative remedies when he did not appeal the revocation of his improvement location permit by the Area Plan Commission to the Board of Zoning Appeals. There, the trial court concluded that Major was not required to exhaust his administrative remedies as a condition precedent to bringing suit since there was no remedy available. Id. at *2. On appeal, however, we determined that the revocation of Major's permit was an order or decision of an administrative official under the zoning ordinance. Id. at *5. Thus, it was appealable to the Board of Zoning Appeals under Indiana Code Section 36-7-4-918.1 which provides that a board of zoning appeals shall hear and determine appeals from "any order, requirement, decision, or determination made by an administrative official, hearing officer or staff member under the zoning ordinance." Id. at *6.

Here, the exhaustion doctrine does not apply because there was no administrative decision from which Thom could have appealed. In Major, the executive director of the Area Plan Commission issued a letter informing Major that his improvement location permit had been revoked, but in this case the Building Commissioner took no action to approve Lee's mobile home park. The City merely referred Lee's application to ISDH for its approval. Neither was any notice given that the City had approved Lee's sanitary sewer tap. At the hearing on the motion for summary judgment, counsel for the City stated that Thom was not entitled to any notification. There was no local zoning action taken and, hence, no administrative remedy available to an aggrieved person at the local level. Thus, Thom's suit is not barred by its failure to exhaust the administrative remedies set forth in the Zoning Code.

II. Authority to Build a Mobile Home Park

We now turn to the central issue of whether, under the City's zoning ordinances, a developer who has obtained ISDH approval of its "Plans and Specifications for Sanitary Features" may build a mobile home park in a general business zone without local zoning approval. In challenging the trial court's grant of summary judgment for Lee, Thom points out that the Zoning Code states that no land may be used for any purpose other than a use which is "permitted and specified" in the district in which such land is located. Neither the Zoning Code nor the Manufactured Housing Ordinance specifically allows a mobile home park in any zoning district. Thus, Thom contends that mobile home parks may not be constructed anywhere in the City. Lee counters that because the ordinances do not state where mobile home parks can be located, mobile home parks can be located in any zoning district once ISDH approval has been obtained.

Standard of Review

When reviewing a grant of summary judgment, we use the same standard as applied by the trial court. Trotter v. Nelson, 684 N.E.2d 1150, 1152 (Ind.1997). However, a trial court's decision on a motion for summary judgment enters the process of appellate review clothed with a presumption of validity. Stephenson v. Ledbetter, 596 N.E.2d 1369, 1371 (Ind. 1992). The party appealing the grant of summary judgment must persuade the appellate court that error occurred. Id.

Summary judgment should be granted only when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Trotter, 684 N.E.2d at 1152. In making our determination, we consider the evidence designated by the parties in a light most favorable to the non-moving party. Id. Any doubt about a fact or inference is resolved in favor of the non-moving party. Id. Where a trial court enters specific findings of fact and conclusions of law on a motion for summary judgment, we are not bound by them. Rice v. Strunk, 670 N.E.2d 1280, 1282 (Ind.1996). They merely aid our review by providing us with a statement of reasons for the trial court's actions. Id. Hence, we are not limited to reviewing the trial court's reasons for granting summary judgment, but may affirm a grant of summary judgment if it is sustainable on any theory or basis found in the record. Stephenson, 596 N.E.2d at 1371.

Interpretation of the Ordinances

In its summary judgment, the trial court concluded that the Zoning Code "allows construction of a mobile home park on property located within areas zoned B-3 (General Business) once approval for the mobile home park is obtained from the Indiana State Department of Health." In reaching that conclusion, the trial court made the following findings of fact:

1. That the Lee property is located in an area zoned in a B-3 (General Business) district as defined by the City's Zoning Code, which has been duly adopted and amended by the ordinance;

2. That a classification of R-1 (Single Family Residential) is the most restrictive use permitted by the City's Zoning Ordinance;

3. That pursuant to the Zoning Code, single family dwellings are a permitted use in zoning classification R-1;

4. That a mobile home, as defined by the Zoning Code, is a single family dwelling which must be located in a mobile home park;

5. That pursuant to the Zoning Code, any use permitted in areas zoned R-1 or R-2 (Multi-Family Residential), except multi-family dwellings, are permitted in an area zoned B-1 (Local Business) 6. That the Zoning Code allows any use permitted in a B-1 zoning district to operate in an area zoned B-2 (Service Business);

7. That the Zoning Code allows any use permitted in areas zoned B-2 to operate in an area located in an area zoned B-3.

Thom argues that the trial court's conclusion is erroneous because the Zoning Code clearly requires that any use be expressly authorized in a district where the land is located, and neither the Code nor the Manufactured Housing Ordinance enumerates mobile home parks in any zoning district. We agree. Here, the trial court reasoned, in effect, that a mobile home park is permitted in an area zoned general business because a mobile home is a single family dwelling which is allowed in a business zone. We follow the court's reasoning but cannot agree with its conclusion. As the court found, and as we discuss below, mobile homes are only permitted in mobile home parks. Thus, the critical question is not where a mobile home can be located but where a mobile home park can be located.

The interpretation of an ordinance is a question of law to which this court owes the trial court's holding no deference. Union Township Sch. Corp. v. Joyce, 706 N.E.2d 183, 190 (Ind.Ct.App. 1998), trans. denied. When asked to...