John Counceller v. City of Columbus Plan Commission

Aug 19 2015, 8:26 am
ATTORNEYS FOR APPELLANT ATTORNEY FOR APPELLEE
Michael L. Carmin John A. Stroh
Gregory A. Bullman Sharpnack Bigley Stroh & Washburn LLP
CarminParker, PC Columbus, Indiana
Bloomington, Indiana
IN THE
COURT OF APPEALS OF INDIANA
John Counceller, August 19, 2015
Appellant-Petitioner, Court of Appeals Case No.
03A05-1503-PL-127
v. Appeal from the Bartholomew
Circuit Court
The Honorable James D. Worton,
City of Columbus Plan Special Judge
Commission, Trial Court Cause No. 03C01-1408-
Appellee-Respondent. PL-3420
Bradford, Judge.
Case Summary
[1] In 1999, Appellant-Petitioner John Counceller submitted the first of four
applications to subdivide his lot in the Indian Hills Estates (“the Lot”) in
Columbus. The first two were withdrawn prior to action by Appellee-
Court of Appeals of Indiana | Opinion 03A05-1503-PL-127 | August 19, 2015 Page 1 of 11
Respondent City of Columbus Plan Commission (“the Commission”). In 2013,
Counceller again requested to subdivide the Lot, and the Columbus Plat
Committee (“the Plat Committee”) granted primary approval to the
application. Although no objection was filed to this approval, Counceller never
acted on it, and it expired. The first three applications were to subdivide the
Lot into two lots.
[2] In 2014, Counceller again submitted an application that he be allowed to
subdivide the Lot, this time into three lots, and the Plat Committee again
granted primary approval to the request. When notified of the Plat
Committee’s approval, all or almost all of the other property owners in Indian
Hills Estates objected. Citing a Columbus ordinance that requires 75% of
property owners in a subdivision to approve a further subdivision of one of the
lots, the Commission ultimately rejected Counceller’s application. Counceller
argues that the Commission should be estopped from relying on the 75%
requirement and that it improperly abdicated its responsibility to exercise
exclusive control of the subdivision of land to Counceller’s neighbors. We
affirm.
Facts and Procedural History
[3] Columbus has had three subdivision control ordinances, the first in effect from
1949 to 1968, the second from 1968 to 1982, and the third from 1982 to the
present. Indian Hills Estates was platted in 1962 and, although not within
Columbus city limits at the time, was subject to Columbus’s subdivision control
Court of Appeals of Indiana | Opinion 03A05-1503-PL-127 | August 19, 2015 Page 2 of 11
ordinance and has since been annexed in any event. Section 16.24.225 of the
current subdivision control ordinance (“Section 225”), governing the
resubdivision of land, provides as follows:
Section 16.24.225 Resubdivision of land
A. Procedure for Resubdivision. Whenever a land owner
desires to resubdivide an already approved major
subdivision plat, the land owner shall apply for the
resubdivision using the same procedure prescribed for the
subdivision of land.
B. For any resubdivision where the proposed changes may
have an impact on the existing subdivision, the application
shall include the signed consent of 75% of the owners of
property in the existing subdivision. Such changes include
the following:
1. Any change in street circulation pattern or other
significant change in a public improvement;
2. The addition of one or more buildable lots;
3. Any change in the amount of land reserved for
public use or the common use by lot owners;
4. Any other change which would have an adverse
effect on the use and enjoyment of property in the
existing subdivision.
C. The staff shall make a determination as to whether a
proposed change will have a significant impact as defined
in Subsection B. The staff decision may be appealed to the
Commission.
D. Waiver. A property owner may request a waiver from the
requirements of Subsection B. The Commission may
waive the requirement for the consent of 75% of the
property owners in the subdivision if it finds that the
proposed change will not have a significant impact on the
existing subdivision. The Commission, after receiving an
Court of Appeals of Indiana | Opinion 03A05-1503-PL-127 | August 19, 2015 Page 3 of 11
application for resubdivision that includes an express
request for waiver, shall consider the request after a public
hearing. Notice of the hearing shall be given to interested
parties as defined in the Rules of Procedure.
E. Covenants. Any new lots created by a resubdivision shall
be subject to any covenants and restrictions that applied to
the original subdivision plat.
F. This section shall not apply to land or parcels shown and
clearly labeled on the preliminary or final plat as reserved
or intended for future development. (Ord. No. 24, 1999,
§3, 9-7-99)
COLUMBUS, IND., SUBDIVISION CONTROL ORDINANCE 16.24.225 (1999).
[4] Counceller owns the Lot in Indian Hills Estates. The Lot consists of
approximately 3.26 acres, while the average lot size in Indian Hills Estates is
approximately 2.26 acres. In 1999 and 2010, Counceller submitted applications
to the Commission to subdivide the Lot into two lots. In 2013, Counceller
again submitted an application to subdivide the lot in two, which request was
approved by the Plat Committee on October 24, 2013. Counceller did not
execute the approval and it expired in January of 2014.
[5] On March 10, 2014, Counceller filed a fourth application to resubdivide the
Lot, this time into three lots, with proposed areas of approximately 1 acre, 1.06
acres, and 1.26 acres. On March 20, 2014, the Plat Committee approved
Counceller’s application. Public notice of the Plat Committee’s approval was
provided on May 23, 2014. On May 30, 2014, the Columbus Planning
Department received an appeal of the Plat Committee’s approval, which appeal
was filed by Counceller’s neighbors Mark Elwood and Angie May and
Court of Appeals of Indiana | Opinion 03A05-1503-PL-127 | August 19, 2015 Page 4 of 11
approved by all or almost all of the other property owners of Indian Hills
Estates.
[6] On July 9, 2014, the Commission met, conducted a hearing, and voted to deny
Counceller’s request to resubdivide on the basis that it did not receive the
consent of 75% of the other property owners in Indian Hills Estates. On August
1, 2014, Counceller petitioned for judicial review of the Commission’s decision
in Bartholomew Circuit Court, arguing that the Commission should be
estopped from enforcing the 75% requirement of Section 225 and that the
Commission improperly abdicated its authority to Counceller’s neighbors. On
February 26, 2015, the trial court denied Counceller’s petition.
Discussion and Decision
I. Estoppel
[7] Counceller contends that the Commission should be estopped from denying his
request to resubdivide the Lot.
The doctrine of equitable estoppel requires three elements: “(1)
lack of knowledge and of the means of knowledge as to the facts
in question, (2) reliance upon the conduct of the party estopped,
and (3) action based thereon of such a character as to change his
position prejudicially.” Hannon v. Metropolitan Development
Comm’n, 685 N.E.2d 1075, 1080-81 (Ind. Ct. App. 1997). [T]he
general rule [is] that a governmental entity cannot be estopped by
the unlawful acts of public officials. Cablevision of Chicago v. Colby
Cable Corp., 417 N.E.2d 348, 354 (Ind. Ct. App. 1981). However,
this prohibition is not absolute. Id. at 356. This court has
recognized equitable estoppel can be applied against a
governmental entity when “the public interest” will be
Court of Appeals of Indiana | Opinion 03A05-1503-PL-127 | August 19, 2015 Page 5 of 11
threatened. Advisory Board of Zoning Appeals of Hammond v.
Foundation for Comprehensive Mental Health, Inc., 497 N.E.2d 1089,
1092 (Ind. Ct. App. 1986); see also Cablevision of Chicago, 417
N.E.2d at 357.…
“Estoppel cannot be applied when the facts are equally known or
accessible to both parties.” Comprehensive Mental Health, 497
N.E.2d at 1093. [P]roperty owners [are] charged with knowledge
of the applicable subdivision ordinance[.] Board of Zoning Appeals
v. Leisz, 702 N.E.2d 1026, 1030 (Ind. 1998)[.]
Johnson Cnty. Plan Comm’n v. Tinkle, 748 N.E.2d 417, 419-20 (Ind. Ct. App.
2001).
[8] Counceller argues essentially that the Commission should be estopped from
enforcing because nobody with the Plat Committee or planning staff told him
that he was required to have consent of 75% of the other property owners in
Indian Hills Estates. Consequently, Counceller’s argument continues, his
ignorance of the 75% requirement caused him to allow his third resubdivision
application to lapse to his detriment.
[9] At the very least, however, Counceller has failed to establish the first element of
his estoppel claim: a lack of knowledge of the provisions of Section 225 or the
means to acquire that knowledge. To the extent that Counceller argues that he
was unaware of the 75% requirement and that the Commission was under some
obligation to inform him of it, it is well-settled that “[p]roperty owners are
charged with knowledge of ordinances that affect their property.” Story Bed &
Breakfast, LLP v. Brown Cnty. Area Plan Comm’n, 819 N.E.2d 55, 64 (Ind. 2004).
Court of Appeals of Indiana | Opinion 03A05-1503-PL-127 | August 19, 2015 Page 6 of 11
As a general rule, equitable estoppel will not be applied against
governmental authorities. Id. Our courts have been “hesitant to
allow an estoppel in those cases where the party claiming to have
been ignorant of the facts had access to the correct information.”
[Cablevision of Chicago, 417 N.E.2d at 355]. The State will not be
estopped in the absence of clear evidence that its agents made
representations upon which the party asserting estoppel relied.
Indiana Dep’t of Envtl. Mgmt. v. Conard, 614 N.E.2d 916, 921 (Ind.
1993). However, “estoppel may be appropriate where the party
asserting estoppel has detrimentally relied on the governmental
entity’s affirmative assertion or on its silence where there was a
duty to speak.” Equicor Dev. v. Westfield-Washington Township, 758
N.E.2d 34, 39 (Ind. 2001).
Id. at 67.
[10] Simply put, pursuant to Story Bed & Breakfast, Counceller is charged with
knowledge of the provisions of Section 225, and Counceller makes no claim
that the Commission or any related entity made any representations that they
would not be enforced in his case. In the absence of any evidence of an
affirmative assertion (or silence when there was a duty to speak), Counceller’s
estoppel claim must fail.
[11] Counceller is essentially arguing that the Commission’s alleged failure to
enforce Section 225’s 75% requirement in his previous three resubdivision
applications should be taken as an assertion that it would not be enforced in his
Court of Appeals of Indiana | Opinion 03A05-1503-PL-127 | August 19, 2015 Page 7 of 11
fourth.1 As the Commission points out, however, the previous three
applications apparently never got to the point where the 75% requirement
became an issue. In 1999 and 2010, Counceller withdrew the applications
before the Commission took any action on them. In 2013, the 75% requirement
did not arise because none of the other property owners in Indian Hills Estates
objected when given notice of the Plat Committee’s approval of Counceller’s
application. Indeed, according to Columbus Planning Director Jeff Bergman,
Section 225’s 75% requirement had never been an issue because, to the best of
his knowledge, no resubdivision request had ever been objected to. (Appellant’s
App. 138). We conclude that a more accurate way of characterizing the record
would be to say that Section 225’s 75% requirement simply never arose in
Counceller’s previous three applications. In our view, this cannot be taken as
an assertion that Section 225 would not be enforced in the fourth.
[12] Additionally, Counceller’s request that we draw parallels between all four of his
resubdivision requests is misguided because he did not request the same thing in
all four. As previously mentioned, Counceller requested the first three times to
resubdivide the Lot into two, but the fourth time requested to resubdivide it into
1
Counceller did not submit any written consent with his resubdivision application, as required by the plain
language of Section 225, and yet the Commission did not reject his application and the Plat Committee gave
it primary approval. Counceller suggests that this should be taken as an admission that the consent of the
other property owners would not be required. We disagree. Columbus Planning Director Jeff Bergman
testified that “[t]he way the Plat Committee is set up is the notification happens after the [primary] approval.”
Appellant’s App. p. 94. We do not believe that the Commission’s and Plat Committee’s willingness to allow
Counceller’s application to proceed despite its noncompliance with Section 225 falls short of an affirmative
indication that the 75% requirement would not be enforced.
Court of Appeals of Indiana | Opinion 03A05-1503-PL-127 | August 19, 2015 Page 8 of 11
three lots. Even assuming, arguendo, that Counceller had a right to expect that a
fourth, identical request for resubdivision would be treated the same as the
previous three by the Commission, the fourth request was not, in fact, identical.
Because Counceller failed to establish that was denied the means to gain
knowledge of the 75% requirement, the trial court did not err in concluding that
the Commission was estopped from denying Counceller’s application.
II. Abdication
[13] Counceller also argues that the Commission impermissibly abdicated its
authority to approve or disapprove of plats within Columbus to his neighbors.
Counceller maintains that Section 225 is an impermissible “neighborhood veto”
ordinance that grants unrestricted power to his neighbors to withhold their
consent to his resubdivision, even for selfish, arbitrary, or discriminatory
reasons. Counceller is correct that such provisions have been held to be
unconstitutional. See, e.g., State of Washington ex rel. Seattle Title Trust Co. v.
Roberge, 49 S. Ct. 50, 52 (1928) (“The section purports to give the owners of less
than one-half the land within 400 feet of the proposed building authority—
uncontrolled by any standard or rule prescribed by legislative action-to prevent
the trustee from using its land for the proposed home. The superintendent is
bound by the decision or inaction of such owners. There is no provision for
review under the ordinance; their failure to give consent is final. They are not
bound by any official duty, but are free to withhold consent for selfish reasons
or arbitrarily and may subject the trustee to their will or caprice. The delegation
Court of Appeals of Indiana | Opinion 03A05-1503-PL-127 | August 19, 2015 Page 9 of 11
of power so attempted is repugnant to the due process clause of the Fourteenth
Amendment.”) (citation omitted).
[14] Section 225 is easily distinguished from provisions such as that at issue in
Roberge. Section 225 does not give unrestricted power to Counceller’s
neighbors, in that it provides an applicant with a means to obtain a waiver to
the 75% requirement. Subsection D of Section 225 provides as follows:
Waiver. A property owner may request a waiver from the
requirements of Subsection B. The Commission may waive the
requirement for the consent of 75% of the property owners in the
subdivision if it finds that the proposed change will not have a
significant impact on the existing subdivision. The Commission,
after receiving an application for resubdivision that includes an
express request for waiver, shall consider the request after a
public hearing. Notice of the hearing shall be given to interested
parties as defined in the Rules of Procedure.
[15] So long as a person seeking to resubdivide can establish to the Commission’s
satisfaction that the proposed change will not have a significant impact on the
subdivision, a waiver may be obtained, thus taking the neighbors completely
out of the equation. Section 225 did not confer unrestricted power to
Counceller’s neighbors.
[16] While Counceller acknowledges the waiver provision, he argues that he had
“zero opportunity to request a waiver” pursuant to Subsection 225(D).
Appellant’s Br. p. 39. The record does not support this contention. As
previously mentioned, Counceller is charged with knowledge of the ordinances
that affect the Lot, see Story Bed & Breakfast, 819 N.E.2d at 64, and Subsection
Court of Appeals of Indiana | Opinion 03A05-1503-PL-127 | August 19, 2015 Page 10 of 11
225(D) specifically contemplates that a waiver request be submitted with the
resubdivision application. Counceller, however, did not request a waiver with
his application. Additionally, Counceller had many other reasonable
opportunities to request a waiver, even if one assumes that he was unaware
initially that he could do so. Counceller does not deny that he received notice
of his neighbors’ appeal, which was filed on May 30, 2014, over one month
before the Commission meeting at which the appeal was heard. The appeal
identifies its basis as the failure of Counceller to obtain the consent of 75% of
property owners in Indian Hills Estates and contains the waiver language of
Subsection D. Despite this notice, Counceller did not request a waiver prior to
or during the hearing on the appeal. A more reasonable interpretation of the
record is that, for whatever reason, Counceller chose not to request a waiver,
which is not the same thing as being denied the opportunity. We conclude that
Section 225 does not impermissibly abdicate the Commission’s authority to
Counceller’s neighbors.
[17] The judgment of the trial court is affirmed.
May, J., and Crone, J., concur.
Court of Appeals of Indiana | Opinion 03A05-1503-PL-127 | August 19, 2015 Page 11 of 11