Silver Lake Partners, LLC v. Town of Silver Lake, Indiana (mem. dec.) ( 2019 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Jun 07 2019, 8:46 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
Bruce N. Munson Jay A. Rigdon
Law Office of Bruce N. Munson, P.C. Rockhill Pinnick, LLP
Muncie, Indiana Warsaw, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Silver Lake Partners, LLC, June 7, 2019
Appellant-Petitioner, Court of Appeals Case No.
18A-PL-2701
v. Appeal from the Kosciusko
Superior Court
Town of Silver Lake, Indiana, The Honorable David C. Cates,
Appellee-Respondent. Judge
Trial Court Cause No.
43D01-1806-PL-61
Friedlander, Senior Judge.
[1] Silver Lake Partners, LLC (“the LLC”), appeals the trial court’s affirmation of
an administrative order to demolish a building on its property. We affirm.
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[2] For decades, Silver Lake Elementary School (“the School”) served the residents
of Silver Lake, Kosciusko County, Indiana. The School was built in the 1930s
and is an Art Deco-style multi-story building containing classrooms and a
gymnasium. It closed in 2005, and the school corporation sold it. The LLC
purchased the School in 2008. The School has remained vacant and unused
since 2008. The LLC has attempted to start a charter school in the School but
has failed to obtain regulatory approval.
[3] On May 12, 2009, the Town of Silver Lake (“the Town”) enacted an ordinance
that adopted Indiana’s Unsafe Building Law and created an Office of the
Building Commissioner. The Town has cited the School for violations of the
ordinance more than 365 times since 2009.
[4] The Town hired Calvin Bolt to inspect the School. He performed inspections
on December 9, 2016, and January 2, 2017. On January 10, 2017, he submitted
a report to the Town Council. We discuss the report in more detail below, but
Bolt identified numerous problems with the roof and other parts of the building.
He summarized the School as “not safe or habitable inside and is a hazard
inside.” Appellant’s App. Vol. 2, p. 13.
[5] On March 27, 2018, the Town’s building commissioner issued a demolition
order, instructing the LLC to demolish the School within fifteen days. The
LLC requested a hearing. Hearing Officer Thomas Earhart held an evidentiary
hearing on May 16, 2018. On May 30, 2018, Hearing Officer Earhart issued an
order approving the building commissioner’s demolition order. He determined
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the School met the statutory definition of an unsafe building and was “a danger
to the health and safety of the public.” Id. at 147.
[6] On June 9, 2018, the LLC filed a Petition for Judicial Review, alleging the
hearing officer’s determination was arbitrary and capricious because it was
unsupported by evidence. The trial court held oral argument and considered
the evidence that had been presented to the hearing officer. On September 12,
2018, the court issued findings of fact and conclusions thereon affirming the
hearing officer’s order. The LLC filed a motion to correct error, which the
court denied. This appeal followed.
[7] The LLC argues the trial court should have reversed the hearing officer’s order.
The LLC further argues the evidence presented to the hearing officer
established the LLC had attempted to correct the problems that had caused the
building commissioner to issue the demolition order.
[8] Indiana Code sections 36-7-9-1 et seq. is also known as the Unsafe Building
Law (“the USB”). Municipalities and counties may adopt the USB by
ordinance. Ind. Code § 36-7-9-3 (1990). Under the USB, enforcement
authorities may issue orders requiring property owners to remedy unsafe
buildings, including: vacating an unsafe building; sealing an unsafe building
against unauthorized intrusion; removal of trash or debris; repair or
rehabilitation of an unsafe building; and demolition or repair of an unsafe
building. Ind. Code § 36-7-9-5 (2015).
[9] An unsafe building is defined as follows:
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a building or structure, or any part of a building or structure, that
is:
(1) in an impaired structural condition that makes it unsafe to a
person or property;
(2) a fire hazard;
(3) a hazard to the public health;
(4) a public nuisance;
(5) dangerous to a person or property because of a violation of a
statute or ordinance concerning building condition or
maintenance; or
(6) vacant or blighted and not maintained in a manner that
would allow human habitation, occupancy, or use under the
requirements of a statute or an ordinance; . . . .
Ind. Code § 36-7-9-4 (2014).
[10] When an enforcement authority issues an order requiring a property owner to
take action on an unsafe building, the property owner may request a hearing
before a designated hearing authority. Ind. Code § 36-7-9-7 (2015). The
hearing authority may affirm, rescind, or modify the order. Id. The hearing
authority’s decision may be appealed to “the circuit or superior court of the
county in which the unsafe premises are located.” Ind. Code § 36-7-9-8 (2015).
This type of appeal is an action de novo, and the court may affirm, modify, or
reverse the hearing authority’s decision. Id.
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[11] “Under de novo review, a trial court may, ‘to a limited extent, weigh the
evidence supporting the finding of fact by the enforcement authority. The court
may negate the finding only if, based upon the evidence as a whole, the finding
of fact was arbitrary, capricious, an abuse of discretion, unsupported by the
evidence, or in excess of statutory authority.’” Brown v. Anderson Bd. of Pub.
Safety, 777 N.E.2d 1106, 1108 (Ind. Ct. App. 2002) (quoting Kopinski v. Health &
Hosp. Corp. of Marion Cty., 766 N.E.2d 454, 454-55 (Ind. Ct. App. 2002)), trans.
denied. The trial court may not substitute its judgment for that of the hearing
authority because “the facts should be determined only one time.” Id. When
we review the trial court’s decision in a case involving an unsafe building, we,
like the trial court, are required to determine whether its decision was arbitrary,
capricious, an abuse of discretion, unsupported by the evidence, or in excess of
statutory authority. Groff v. City of Butler, 794 N.E.2d 528 (Ind. Ct. App. 2003).
[12] In this case, the LLC purchased the School in 2008. The LLC tried several
times to start a charter school in the building but failed to obtain approval from
regulators.
[13] The School deteriorated over the following years, and the Town received
numerous complaints about its condition. Some complainants saw birds and
bats exiting the building. In addition, the School’s doors were left propped
open at times, and broken windows were visible. Other complainants noted the
School was adjacent to a public playground, and unsupervised children had
been found trespassing in the building in the past. Fourteen large air
conditioning units were installed in the School’s windows, and people
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expressed concern that they could fall out on passersby. The LLC neglected the
lawn and mowed it only sporadically. Finally, the Town’s marshal saw
sinkholes on the property.
[14] The Town had cited the LLC over 365 times for violations of the unsafe
building ordinance. The LLC failed to pay fines related to the citations. In
addition, Town officials met with the LLC’s members several times over the
years, and they did not see any proof that the LLC had the financial resources
to pay for the extensive repairs the School needed. Paul Hayden, who works
for Indiana Landmarks, a nonprofit organization that seeks to preserve historic
buildings, examined the School’s exterior. He testified the School was a “large
building” that needed “a lot of work.” Appellant’s App. Vol. 2, p. 133.
Hayden further explained, “There becomes [sic] a tipping point where a
building is not financially feasible to be restored. We’re getting to that point.”
Id. at 134.
[15] Bolt inspected the School from the roof to the basement on December 9, 2016,
and January 2, 2017. He noted substantial problems with the roof. He
explained that a portion of the roof had a new membrane, but the supporting
“sheathing boards” had rotted away and had not been properly replaced. Tr.
Vol. 3, p. 45. Without new sheathing boards, the membrane would inevitably
sag and leak. Further, the lack of a supporting structure under the membrane
made portions of the roof unsafe for walking. In addition, the entire perimeter
of the roof needed repair, because portions of the membrane had peeled open
along the parapet walls, allowing moisture to infiltrate the building. Bolt
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recommended ripping out the membrane and installing new roof sheathing
throughout.
[16] Next, Bolt noted bricks and limestone on the west side of the School’s exterior
were “tilting and tipping out.” Id. at 43. He explained the bricks would need to
be removed and reinstalled to prevent water intrusion. In addition, rain water
was entering through the chimney, and mortar joints on the chimney needed to
be re-caulked. Bolt also saw seven broken windows. Further, Bolt stated that
at least three of the fourteen window air conditioning units needed to be
removed because the frames around them had rotted, posing a risk that the
units would fall out.
[17] Inside the School, Bolt noticed that many ceiling tiles had fallen out due to
saturation from roof leaks. Some of the tiles on the ceiling and floor displayed
“extensive mold.” Id. at 44. There was also mold on the walls of several
rooms. Bolt indicated testing was necessary to determine whether the mold was
hazardous. In addition, the gymnasium’s wooden floor was warped and
buckled due to water infiltration. Bolt found several dead birds throughout the
School, which indicated that the building had not been sufficiently sealed.
[18] In the basement, Bolt saw mud on the floor and water marks on the wall
indicating where flooding had occurred. He theorized that the floor drain was
blocked and indicated that further work was needed to determine the source of
the water. In summary, Bolt described the school as an “albatross” and
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explained that repairing and reconfiguring the building for another use, such as
apartments, would cost “a hefty 7 figure amount.” Id. at 129.
[19] Bolt later advised the Town’s council not to enter the School without a
respirator due to mold. On one occasion in 2016, the Town’s marshal searched
the building to see if anyone had broken and entered. He had trouble
breathing, which he attributed to mold. On the day of the evidentiary hearing,
the marshal had stopped by the School, and he saw broken windows that had
not been repaired or boarded up. In addition, James Malcolm testified at the
evidentiary hearing on behalf of the LLC. He had walked through the School a
week before the hearing, and he conceded that he saw mold and broken
windows.
[20] This evidence clearly supports the hearing officer’s determination that the
School is an unsafe building as defined by Indiana Code section 36-7-9-4. The
building has deteriorated, and the LLC lacks the resources to correct the
numerous, substantial problems. As a result, the trial court did not err in
determining the school is in an impaired structural condition that makes it
unsafe to a person or property; it is a hazard to the public health; it is a public
nuisance; and it is vacant or blighted and not maintained in a manner that
would allow human habitation, occupancy, or use. Further, the building is
unlikely to be repaired and restored to use. See Brown, 777 N.E.2d at 1106
(demolition order was supported by substantial evidence; the house was in a
dilapidated and dangerous state, homeowner had failed to make necessary
repairs despite ample opportunity and was unlikely to make repairs).
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[21] The LLC argues that it made efforts to correct the problems before the
evidentiary hearing, including removing all ceiling tiles. It further argues Bolt’s
report was “unprofessional” and “vague.” Appellant’s Br. p. 9. The LLC
finally argues Bolt’s assessment of roof leaks is wrong. These arguments are not
sufficient grounds for reversal. We are obligated to determine whether the
hearing officer’s decision was arbitrary and capricious, and we have determined
that it was not arbitrary and capricious because it was supported by substantial
evidence. The LLC presented its arguments to the hearing officer, and on
appeal they amount to a request to reweigh the evidence, which our standard of
review forbids. See 409 Land Tr. v. City of South Bend, 709 N.E.2d 348 (Ind. Ct.
App 1999) (trial court order affirming demolition order was not an abuse of
discretion; property owner had attempted to make repairs, but repairs were
untimely and insufficient to correct the property’s substantial problems), trans.
denied.
[22] For the foregoing reasons, we affirm the judgment of the trial court.
[23] Judgment affirmed.
Riley, J., and May, J., concur.
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