Mar 16 2015, 9:54 am
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
Eugene M. Feingold Gregory Zoeller
Steven P. Kennedy Attorney General of Indiana
Law Offices of Eugene M. Feingold
Kathy Bradley
Munster, IN
Deputy Attorney General
Indianapolis, IN
IN THE
COURT OF APPEALS OF INDIANA
Redevelopment Commission of March 16, 2015
the Town of Munster, Indiana, Court of Appeals Case No.
45A04-1408-PL-404
Appellant-Petitioner,
Appeal from the Lake Circiuit Court
v. The Honorable Thomas W. Webber,
Sr., Judge Pro Tempore
Indiana State Board of Accounts Cause No. 45D04-1310-PL-92
and Paul D. Joyce, State
Examiner of State Board of
Accounts,
Appellee-Respondent
Mathias, Judge.
[1] The Munster Redevelopment Commission (“the Commission”) appeals the
Lake Circuit Court’s order entering summary judgment in favor of the Indiana
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State Board of Accounts1 (“the Board”) in which the trial court determined that
Indiana Code section 36-7-14-28 does not permit the Commission to use tax
incremental financing funds to pay for the ongoing maintenance of redeveloped
properties.
[2] We affirm.
Facts and Procedural History
[3] In February 2006, the Commission initiated a project to redevelop a designated
area in Munster, which included the Munster Centennial Park and the Munster
Community Park. The Commission financed the parks’ improvements, in part,
using funds acquired through tax allocation financing, also known as tax
increment financing2 (“TIF”). After the redevelopment of the parks was
completed, ownership of the parks was transferred from the Commission to the
1
The Indiana State Board of Accounts supervises the financing and accounting practices of Indiana’s
municipal corporations.
2
The Indiana Supreme Court has explained the tax allocation scheme in Indiana:
Under the tax allocation statutes, an impetus towards redevelopment of blighted urban areas is
achieved by the reallocation of local tax money in such a fashion that overlapping taxing
jurisdictions which benefit from improvements in the renewal areas also share in their cost. The
overlapping taxing bodies are all beneficiaries of any post-development revenue increases due to
increased assessed values in the development area. Prior to the legislative amendments
authorizing tax allocation procedures, the [Commission] alone bore the costs of land
acquisition, clearance, and improvements associated with any redevelopment and the
overlapping taxing bodies did not share in the public costs of the redevelopment. The tax
allocation legislation requires a sharing of those costs by all public bodies benefiting from the
redevelopment by requiring all post-development tax revenues attributable to increased assessed
values to be paid to the [Commission] until all costs of public improvements associated with the
redevelopment have been paid. The taxing bodies remain entitled to all property tax revenues
not attributable to the development within the Allocation Area. When the redevelopment costs
have been paid, the tax allocation is discontinued and all public bodies share in tax revenues as
they did prior to the redevelopment and enjoy the benefits of increased property tax values and
revenues.
S. Bend Pub. Transp. Corp. v. City of S. Bend, 428 N.E.2d 217, 219 (Ind. 1981).
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Munster Municipal Center Corporation and Parks Department (“the town”).
The town allocated in its annual budget a portion of TIF funds to pay for the
ongoing maintenance of the parks.
[4] At some point, the town learned that the Board did not consider maintenance
of redeveloped properties to be proper use of TIF funds. The town consulted its
legal counsel as to whether it was permissible for the town to use TIF funds to
maintain the two parks. On May 16, 2013, the town’s counsel wrote: “It is our
view that the statutes authorize activities of this nature when those activities are
in conjunction with the overall redevelopment purposes of the Town.”
Appellant’s App. p. 38. Counsel’s memo also stated:
[I]f the Redevelopment Commission is utilizing the tax levy for general
expenses to fulfill [its duty to use the land in the manner that best
serves the town] and has concluded that it ought to promote this use of
parks and cooperate with the Town, its decision fits squarely within
the statutory framework and intent and is certainly incident to its
statutory powers and duties.
Id.
[5] The town also sought the opinion of the Board. On August 22, 2013, the town
received a letter from the Board, which provided:
The legislature has provided that the expenditure of redevelopment
funds for maintenance is to occur only to maintain buildings in the
situation where the redevelopment commission has determined that
demolition of those buildings is not considered necessary to carry out
the redevelopment plan. Such funds cannot be used to maintain park
land. This should not be construed as a legal opinion but represents
the position we would take in an audit of the Town’s records.
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Appellant’s App. p. 37.
[6] On October 7, 2013, the Commission filed a complaint against the Board
seeking declaratory relief. Specifically, the Commission alleged that
“[d]isallowing the use of TIF funds for maintenance of a TIF financed
redevelopment project . . . will create a substantial additional tax expense to its
property owners” and that “[f]ailure to comply with the notification of the State
Board of Accounts would place the Town of Munster and its Redevelopment
Commission at risk of fines, penalties, and other punitive actions . . . taken
by . . . the State Board of Accounts.” Appellant’s App. p. 3.
[7] On June 2, 2014, the Commission filed a motion for summary judgment. The
trial court denied the Commission’s motion on August 1, 2014, and granted
summary judgment in favor of the Board, finding that that the language in the
relevant statutes shows that “the legislature [did not intend] to allow TIF funds
to be used for the continued maintenance of properties acquired and improved
through the use of TIF funds.” Appellant’s App. p. 8. The court also noted
that the parks in question were now owned by the town, not by the
Commission, and that “this is not a matter that falls within I.C. § 36-7-14-22.5
where maintenance of real property owned by the commission can be
maintained by [the] commission with TIF funds.” Id.
[8] The Commission now appeals. The Board cross-appeals.
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I. The Commission’s Standing
[9] In its cross-appeal, the Board argues that the Commission did not have standing
to bring an action for declaratory judgment because “there is no real or actual
controversy.” Appellee’s Br. at 7. Specifically, the Board contends that the
Commission has “shown no injury based on the [Board’s] letter stating that the
position of the [Board] is that TIF funds may not be used for park
maintenance.” Id. at 8. The Board argues that the Commission’s claims that
prohibiting the use of TIF funds for the maintenance of the parks will increase
property owners’ tax obligations and place the Commission at risk of punitive
actions are “purely speculative.” Id.
[10] Standing is defined as having a “sufficient stake in an otherwise justiciable
controversy.” Ind. Civil Rights Comm’n v. Indianapolis Newspapers, Inc., 716
N.E.2d 943, 945 (Ind. 1999). The point of the standing requirement is to ensure
that the party before the court has a substantive right to enforce the claim that is
being made in the litigation. Pence v. State, 652 N.E.2d 486, 487 (Ind. 1995).
Standing is “a significant restraint on the ability of Indiana courts to act, as it
denies the courts any jurisdiction absent an actual injured party participating in
the case.” Id. at 488.
[11] The standing requirement obligates courts to act only in real cases and shun
action when called upon to engage only in abstract speculation. Id. An actual
dispute involving those harmed is what confers jurisdiction upon the judiciary:
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For the disposition of cases and controversies, the Court requires
adverse parties before it. Standing focuses generally upon the question
whether the complaining party is the proper person to invoke the
Court’s power. However, more fundamentally, standing is a restraint
upon this Court’s exercise of its jurisdiction in that we cannot proceed
where there is no demonstrable injury to the complainant before us.
Id. (quotation omitted). Put simply, in order to have standing, the challenging
party must show adequate injury or the immediate danger of sustaining some
injury. Ind. Civil Rights Comm’n, 716 N.E.2d at 945.
[12] In its complaint, the Commission sought declaratory relief allowing it to use
TIF funds to maintain the redeveloped parks. Indiana Code section 34-14-1-2
defines a person who may obtain declaratory judgment:
Any person interested under a deed, will, written contract, or other
writings constituting a contract, or whose rights, status, or other legal
relations are affected by a statute, municipal ordinance, contract, or
franchise, may have determined any question of construction or
validity arising under the instrument, statute, ordinance, contract, or
franchise and obtain a declaration of rights, status, or other legal
relations thereunder.
[13] “In order to obtain declaratory relief, the person bringing the action must have
a substantial present interest in the relief sought.” Hibler v. Conseco, Inc., 744
N.E.2d 1012, 1023 (Ind. Ct. App. 2001). “The basis of jurisdiction under the
Declaratory Judgment Act is a justiciable controversy or question, which is
clearly defined and affects the legal right, the legal status, or the legal
relationship of parties having adverse interests.” Little Beverage Co., Inc. v.
DePrez, 777 N.E.2d 74, 83 (Ind. Ct. App. 2002).
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[14] In the instant case, the Commission asked the trial court to enter a declaratory
judgment to determine its authority to use TIF funds to pay for the maintenance
of the parks it redeveloped. Because the Commission had already budgeted and
utilized TIF funds to pay the maintenance expenses of the parks, and in light of
the position the Board took in its letter to the Commission, the Commission has
shown that it had a substantial interest in determining whether its use of the
TIF funds was proper as well as the immediate danger of injury. See Ad Craft,
Inc. v. Area Plan Comm’n of Evansville & Vanderburgh Cnty., 716 N.E.2d 6 (Ind. Ct.
App. 1999) (uncertain zoning status of a vacated right-of-way upon which a
billboard had been built was a controversy which an area plan commission
could seek to resolve via a declaratory judgment action, particularly considering
the intricacies of the various zoning and permit issues involved and the legal
and economic necessity of a prompt resolution thereof); Lutheran Hosp. of Ft.
Wayne, Inc. v. Dep’t of Pub. Welfare of Allen Cnty., 397 N.E.2d 638 (Ind. Ct. App.
1979) (hospitals had standing to bring action for declaratory judgment whether
they were entitled to reimbursement from county department of public welfare
for emergency medical treatment rendered to indigents in light of fact that the
expenditures incurred by hospitals in treating the indigents approximated
$450,000). We therefore conclude that the Commission had standing to bring
its claim for declaratory relief.
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II. Use of TIF Funds
[15] The Commission argues that the trial court erred when it granted the Board’s
motion for summary judgment. Our standard of review of summary judgment
appeals is well established:
When reviewing a grant of summary judgment, our standard of review
is the same as that of the trial court. Considering only those facts that
the parties designated to the trial court, we must determine whether
there is a “genuine issue as to any material fact” and whether “the
moving party is entitled to a judgment as a matter of law.” In
answering these questions, the reviewing court construes all factual
inferences in the non-moving party’s favor and resolves all doubts as to
the existence of a material issue against the moving party. The moving
party bears the burden of making a prima facie showing that there are
no genuine issues of material fact and that the movant is entitled to
judgment as a matter of law; and once the movant satisfies the burden,
the burden then shifts to the non-moving party to designate and
produce evidence of facts showing the existence of a genuine issue of
material fact.
Dreaded, Inc. v. St. Paul Guardian Ins. Co., 904 N.E.2d 1267, 1269-70 (Ind. 2009)
(citations omitted).
[16] The party appealing a summary judgment decision has the burden of
persuading this court that the grant or denial of summary judgment was
erroneous. Knoebel v. Clark County Superior Court No. 1, 901 N.E.2d 529, 531-32
(Ind. Ct. App. 2009). Where the facts are undisputed and the issue presented is
a pure question of law, we review the matter de novo. Crum v. City of Terre
Haute ex rel. Dep’t of Redev., 812 N.E.2d 164, 166 (Ind. Ct. App. 2004).
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[17] Our resolution of the issue presented in this appeal hinges on our application of
several interrelated sections of Indiana Code title 36-7. We initially observe
that statutory interpretation is a question of law reserved for the court and is
reviewed de novo. Ind. Pesticide Rev. Bd. v. Black Diamond Pest & Termite Control
Inc., 916 N.E.2d 168, 181 (Ind. Ct. App. 2009) (quotation omitted), trans.
denied. De novo review allows us to decide an issue without affording any
deference to the trial court’s decision. Id. Our goal in statutory construction is
to determine, give effect to, and implement the intent of the legislature. Id.
When a statute has not previously been construed, our interpretation is
controlled by the express language of the statute and the rules of statutory
construction. Id. We review the statute as a whole and presume the legislature
intended logical application of the language used in the statute, so as to avoid
unjust or absurd results. See Curley v. Lake Cnty. Bd. of Elections & Registration,
896 N.E.2d 24, 34 (Ind. Ct. App. 2008) (quotation omitted), trans. denied.
[18] To determine the intent of the legislature, we examine the statute as a whole
and also read sections of an act together so that no part is rendered meaningless
if it can be harmonized with the remainder of the statute. Id. (citing City of N.
Vernon v. Jennings Nw. Reg’l Utils., 829 N.E.2d 1, 4 (Ind. 2005)). The best
evidence of legislative intent is the language of the statute itself. U.S. Steel Corp.
v. N. Ind. Pub. Serv. Co., 951 N.E.2d 542, 552 (Ind. Ct. App. 2011). Thus, we
must give all words their plain and ordinary meaning unless otherwise indicated
by statute. Id. When the language in a statute is ambiguous or uncertain, we
may look not only to the language, but also to the nature and subject matter of
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the act and the object to be accomplished thereby in ascertaining the legislative
intent. Johnson v. Morgan, 871 N.E.2d 1050, 1053 (Ind. Ct. App. 2007). If,
however, the statutory language is clear and unambiguous on its face, we will
give such a statute its apparent and obvious meaning. U.S. Steel, 951 N.E.2d at
552.
[19] Indiana Code section 36-7-14-39(b)(2)(J) provides specifically that TIF funds
may be used to “[p]ay expenses incurred by the redevelopment commission for
local public improvements that are in the allocation area or serving the
allocation area. Public improvements include buildings, parking facilities, and
other items described in section 25.1(a) of this chapter.”
[20] Indiana Code section 36-7-14-11 provides that the Commission shall, in
relevant part:
(6) select and acquire the areas needing redevelopment to be
redeveloped under this chapter; and
(7) replan and dispose of the areas needing redevelopment in the
manner that best serves the social and economic interests of the unit
and its inhabitants.
[21] Indiana Code section 36-7-1-18 defines “redevelopment” as:
(1) Acquiring real property in areas needing redevelopment.
(2) Replatting and determining the proper use of real property
acquired.
(3) Opening, closing, relocating, widening, and improving public
ways.
(4) Relocating, constructing, and improving sewers, utility services,
offstreet parking facilities, and levees.
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(5) Laying out and constructing necessary public improvements,
including parks, playgrounds, and other recreational facilities.
(6) Restricting the use of real property acquired according to law.
(7) Repairing and maintaining buildings acquired, if demolition of
those buildings is not considered necessary to carry out the
redevelopment plan.
(8) Rehabilitating real or personal property to carry out the
redevelopment or urban renewal plan, regardless of whether the real or
personal property is acquired by the unit.
(9) Investigating and remediating environmental contamination on
real property to carry out the redevelopment or urban renewal plan,
regardless of whether the real property is acquired by the unit.
(10) Disposing of property acquired on the terms and conditions and
for the uses and purposes that best serve the interests of the units
served by the redevelopment commission.
(11) Making payments required or authorized by IC 8-23-17.
(12) Performing all acts incident to the statutory powers and duties of a
redevelopment commission.
[22] The Commission argues that the “statutory powers granted the [Commission]
are broad and include the use of TIF funds for maintenance of redevelopment
projects.” Appellant’s Br. at 6. According to the Commission, Indiana Code
section 36-7-1-18’s grant of “specific power to develop parks and recreational
facilities” also includes “the power to perform all actions incidental to its
assigned powers, expending funds for the maintenance of a project initially
financed with redevelopment commission funds[.]” Id. at 9 (emphasis added).
[23] The Commission also argues that Indiana Code section 36-7-14-39 should be
interpreted broadly to allow for the use of TIF funds to maintain the parks
because “[t]he maintenance expenses to which the redevelopment commission
applies TIF funds are expenses incurred because of the development.”
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Appellant’s Br. at 11. It acknowledges that the statute does not specifically
permit use of TIF funds to maintain redeveloped parks but points to Indiana
Code section 36-7-14-39(b)(2)(G), which allows the Commission to use TIF
funds to reimburse the town for expenditures for improvements made in the
allocation area; section 36-7-14-39(b)(2)(H), which allows the Commission to
use TIF funds to reimburse the town for expenses related to “rentals paid by it
for a building or parking facility that is physically located in or physically
connected to that allocation area”; and section 36-7-14-39(b)(2)(J), which
allows the Commission to “[p]ay expenses incurred by the redevelopment
commission for local public improvements that are in the allocation area or
serving the allocation area. Public improvements include buildings, parking
facilities, and other items described in . . . this chapter.”
[24] However, the plain language of the statutes leads us to conclude that the trial
court’s grant of summary judgment in favor of the Board was proper. “It is
clearly established that boards of county commissioners possess only such
powers as have been granted expressly by statute and those which must be
necessarily implied to execute some expressed power.” S. Bend Pub. Transp.
Corp. v. City of S. Bend, 428 N.E.2d 217, 225 (Ind. 1981). Our review of the
relevant statutes fails to lead us to any provision that expressly permits the
Commission to use TIF funds for ongoing maintenance of properties that have
already been redeveloped.
[25] Indiana Code section 36-7-14-39(b)(2) provides that TIF funds “may be used by
the redevelopment district only to do one or more of the following,” then lists
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the allowable uses. Notably absent from the list of permissible uses is general
and ongoing maintenance of redeveloped properties. Instead, the language of
the statute indicates that TIF funds are to be spent on the construction and
installation of improvements, rather than continuing maintenance. The sole
provision in the statute specifically authorizing the use of TIF funds for
maintenance is section 36-7-1-18(7), which allows TIF funds to be used for the
maintenance of buildings on property acquired before redevelopment is
complete. Also, Indiana Code section 36-7-14-39 states that “[t]he allocation
fund may not be used for operating expenses of the commission” (emphasis
added).
[26] Our supreme court has observed about the former version of the tax allocation
statute:
When the redevelopment costs have been paid, the tax allocation is
discontinued and all public bodies share in tax revenues as they did
prior to the redevelopment and enjoy the benefits of increased property
tax values and revenues. The legislature passed the tax allocation
financing statutes at this time to provide redevelopment commissions
with a necessary means to promote development when local
governments are facing massive cutbacks in federal assistance and
increasingly tight fiscal constraints attributable to the property tax
freeze.
S. Bend Pub. Transp. Corp., 428 N.E.2d at 219. This language, along with
statutory language instructing the Commission to dispose of the redeveloped
properties once redevelopment is complete, see Indiana Code section 36-7-14-
11(7), is indicative of the General Assembly’s intention that TIF funds no
longer be used once redevelopment is complete.
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[27] The Commission also argues that section 36-7-1-18(12), which gives the
Commission the right to perform “all acts incident to the statutory powers and
duties of a redevelopment commission” in the statutory definition of
“redevelopment” necessarily includes the right to use TIF funds to fund the
parks’ maintenance. We disagree. The powers granted by this provision are
limited to the express statutory powers, or powers incidental to the expressed
powers, of the Commission. See S. Ry. Co. v. Harpe, 223 Ind. 124, 131, 58
N.E.2d 346, 349 (1944). As we have determined, the Commission’s use of TIF
funds for the ongoing maintenance of a redeveloped property is not expressly or
impliedly permitted in the relevant statutes.3
Conclusion
[28] For all of these reasons, we conclude that the Commission had standing to
bring its declaratory judgment. We further conclude that the trial court did not
err in determining that Indiana statute does not permit the use of TIF funds for
the continued maintenance of completed redevelopment projects.
[29] Affirmed.
Najam, J., and Bradford, J., concur.
3
The Commission also argues that the trial court erred in concluding that the Commission could not use TIF
funds to maintain the parks because the parks are no longer owned by the Commission. We find no error
here. The transfer of ownership of the parks from the Commission to the town is simply additional evidence
that the redevelopment of the parks is complete and the use of TIF funds to maintain the parks is not
permitted under the relevant statutes.
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