Pursuant to Ind.Appellate Rule 65(D), Oct 30 2013, 5:47 am
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEES:
MARION COUNTY BOARD OF
ZONING APPEALS, DIVISION 1: JEFFREY M. BELLAMY
STEPHEN R. DONHAM
SAMANTHA E. DEWESTER Thrasher Buschmann & Voelkel, P.C.
City Prosecutor Indianapolis, Indiana
Office of Corporation Counsel
Indianapolis, Indiana
ATTORNEY FOR APPELLANT
MARCUS A. JOHNSON REVOCABLE TRUST:
DAVID E. DEARING
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
MARCUS ANTHONY JOHNSON )
REVOCABLE TRUST and THE MARION )
COUNTY BOARD OF ZONING APPEALS )
DIVISION NO. 1, )
Appellants-Respondents, )
)
vs. ) No. 49A04-1302-PL-59
)
WESTCHESTER ESTATES HOMEOWNERS )
ASSOCIATION, INC., ROGER W. VANDREY, )
SHELLY ANNE POLZIN, and ROBERT K. )
KLEIN, )
Appellees-Petitioners. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Michael D. Keele, Judge
Cause No. 49D07-1204-PL-13826
October 30, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
BAILEY, Judge
Case Summary
The Marcus Anthony Johnson Revocable Trust (“the Trust”) and the Marion County
Board of Zoning Appeals Division 1 (“the Board”) (collectively, “Appellants”) appeal the
trial court’s order granting summary judgment in favor of Westchester Estates Homeowners
Association, Inc. (“Westchester Estates”), Roger W. Vandrey (“Vandrey”), Shelly Anne
Polzin (“Polzin”), and Robert W. Klein (“Klein”) (collectively, “Appellees”), and denying
summary judgment in favor of Appellants.
We affirm.
Issues
The parties present several issues for our review, which we revise and restate as:
I. Whether, as a threshold matter, Appellants waived their challenge to
Appellees’ standing to petition for judicial review; and
II. Whether the trial court erred when it denied Appellants’ motion for
summary judgment as to the issue of Appellees’ standing to challenge
the decision of the Board to grant a zoning variance in favor of the
Trust.1
Facts and Procedural History
The Trust sought a zoning variance to operate an adult foster care home at a building
1
On appeal, Appellants do not challenge the merits of the trial court’s reversal of the Board’s decision to grant
a zoning variance to the Trust. And while Appellants assert that the trial court improvidently granted summary
judgment in favor of Appellees, Appellants fail to develop their argument. Therefore, Appellants have waived
appellate review of these issues. Ind. Appellate Rule 46(A)(8)(a) (appellants must set forth their contentions
supported by cogent reasoning and citation to authority).
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in Marion County, zoned as D-3 for a single-family dwelling. Vandrey and Polzin, each an
owner of property within Westchester Estates, and Westchester Estates, represented by
Vandrey as president and Polzin as treasurer, appeared as remonstrators at a hearing before
the Board. Vandrey testified that Westchester Estates “cannot support this adult foster care
facility because it is really a business in a D-3 residential area, and . . . [w]e believe a
business in that location would set an unacceptable precedent.” (Appellants’ App. at 218.)
He further testified that “we just don’t want this type of facility to [be] operated in our
neighborhood.” (Appellants’ App. at 220.) Polzin then testified that “[w]e do not allow this
by covenant in our subdivision[,] . . . [a]nd there are a number of us that don’t want to set a
precedent in our neighborhood by allowing this type of facility[.]” (Appellants’ App. at 221.)
Further, Susan Blair (“Blair”), president of the Pike Township Residents Association testified
that the use and value of the area adjacent to the property will be affected in a substantially
adverse manner, “because this is a commercial use in a residential subdivision.” (Appellants’
App. at 161.) At the end of the hearing, the Board granted the zoning variance.
Appellees filed a verified petition for judicial review of the Board’s decision.
Thereafter, Appellees filed a motion for summary judgment, to which Appellants filed their
response and cross-motion for summary judgment. In their cross-motion, Appellants
challenged Appellees’ standing to petition for judicial review.
The trial court heard oral argument on the parties’ motions for summary judgment.
The trial court subsequently denied Appellants’ motion for summary judgment, granted
summary judgment in favor of Appellees, and ordered the Board to adopt new findings of
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fact denying the variance request. This appeal ensued.2
Discussion and Decision
Waiver
As a threshold matter, Appellees assert that Appellants waived their challenge to
Appellees’ standing to petition for judicial review because, inter alia, the Trust failed to
participate at the trial court level, the Board filed its appellate appearance too late, and
Appellants’ challenge to Appellees’ standing was untimely. However, a party of record in
the trial court shall be a party on appeal. App. R. 17(A); Hoosier Outdoor Adver. Corp. v.
RBL Mgmt., Inc., 844 N.E.2d 157, 162 (Ind. Ct. App. 2006) (this rule operates of its own
force to make all parties in the trial court parties on appeal), trans. denied. Further, a party
may file a cross-motion for summary judgment at any time. Ind. Trial Rule 56(B).
Therefore, we conclude that Appellants did not waive their challenge to Appellees’ standing.
Summary Judgment
Appellants contend that the trial court erred when it denied their motion for summary
judgment as to the issue of Appellees’ standing. Our standard of review for appeals from
summary judgment is well established:
2
Appellees have filed a motion requesting that we strike the portion of Appellants’ Reply Brief arguing that
Klein’s standing argument is frivolous because Appellants’ argument is a new assertion improperly raised in a
reply brief. Under Indiana Appellate Rule 42, we “may order stricken from any document any redundant,
immaterial, impertinent, scandalous or other inappropriate matter.” And attorney’s fees may be awarded to the
prevailing party if the court makes certain findings. Ind. Code § 34-52-1-1. Therefore, an argument that a
claim is frivolous is a distinct issue that should be raised in an appellant’s brief, and is not appropriately raised
for the first time in a reply brief. See Ind. Appellate Rule 46(C) (“[n]o new issues shall be raised in the reply
brief”). Therefore, in a separate order issued contemporaneously with this opinion, we grant Appellees’
motion to strike section II.C.1 of Appellants’ Reply Brief.
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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) (internal
citations omitted).
On appeal, the trial court’s order granting or denying a motion for summary judgment
is cloaked with a presumption of validity. Miller v. Yedlowski, 916 N.E.2d 246, 249 (Ind.
Ct. App. 2009), trans. denied. The party appealing from a summary judgment decision has
the burden of persuading this court that the grant or denial of summary judgment was
erroneous. Knoebel v. Clark Cnty. Super. Ct. No. 1, 901 N.E.2d 529, 531-32 (Ind. Ct. App.
2009).
Appellants focus their argument on Appellees’ alleged failure to aver in their verified
petition facts establishing standing, or to produce sufficient evidence to establish standing.
However, when reviewing summary judgment, “[w]e must consider the pleadings and
evidence sanctioned by Ind. Trial Rule 56(C) without deciding its weight or credibility.”
Malachowski v. Bank One, Indianapolis, 590 N.E.2d 559, 562 (Ind. 1992) (citing Webb v.
Jarvis, 575 N.E.2d 992, 994 (Ind. 1991)). A party moving for summary judgment must meet
his or her burden by relying on specifically designated evidence. T.R. 56(C). “‘Merely
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alleging that the plaintiff has failed to produce evidence on each element . . . is insufficient to
entitle the defendant to summary judgment.’” Dennis v. Greyhound Lines, Inc., 831 N.E.2d
171, 173 (Ind. Ct. App. 2005) (quoting Jarboe v. Landmark Cmty. Newspapers, 644 N.E.2d
118, 123 (Ind. 1994)), trans. denied. Therefore, we reframe Appellants’ argument as
challenging Appellees’ standing, rather than Appellees’ proof of standing.
Standing is a restraint on a court’s exercise of its jurisdiction.3 Pence v. State, 652
N.E.2d 486, 488 (Ind. 1995) (citing City of Indianapolis v. Ind. State Bd. of Tax Comm’rs,
308 N.E.2d 868, 870 (Ind. 1974)). The standing requirement serves as an important check on
the exercise of judicial power by Indiana courts. Id. The point of the standing requirement is
to insure that the party before the court has a substantive right to enforce the claim that is
being made in the litigation. Id. at 487.
Effective July 1, 2011, Indiana Code sections 36-7-4-1600 through 1616 are the
exclusive means for seeking judicial review of zoning decisions made by boards of zoning
appeals. Ind. Code §§ 36-7-4-1601. Section 36-7-4-1603 sets forth who has standing to
obtain judicial review of a zoning decision:
(a) The following have standing to obtain judicial review of a zoning decision:
(1) A person to whom the zoning decision is specifically directed.
(2) A person aggrieved by the zoning decision who participated in the
board hearing that led to the decision, either:
(A) by appearing at the hearing in person, by agent, or by
attorney and presenting relevant evidence; or
3
There are only two types of jurisdiction in Indiana: subject matter jurisdiction, and personal jurisdiction. K.S.
v. State, 849 N.E.2d 538, 540 (Ind. 2006) (disapproving of the phrase “jurisdiction over the particular case”).
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(B) by filing with the board a written statement setting forth any
facts or opinions relating to the decision.
(3) A person otherwise aggrieved or adversely affected by the zoning
decision.
(b) A person has standing under subsection (a)(3) only if:
(1) the zoning decision has prejudiced or is likely to prejudice the
interests of the person;
(2) the person was eligible for an initial notice of a hearing under this
chapter, was not notified of the hearing in substantial compliance with
this chapter, and did not have actual notice of the hearing before the last
date in the hearing that the person could object or otherwise intervene
to contest the zoning decision;
(3) the person’s asserted interests are among those that the board was
required to consider when it made the challenged zoning decision; and
(4) a judgment in favor of the person would substantially eliminate or
redress the prejudice to the person caused or likely to be caused by the
zoning decision.
I.C. § 36-7-4-1603.
In interpreting Indiana Code section 36-7-4-1003(a) (1995), the predecessor to Section
36-7-4-1603, the Indiana Supreme Court held that “[a] person must be ‘aggrieved’ by a board
of zoning appeals’s decision in order to have standing to seek judicial review of that
decision.” Bagnall v. Town of Beverly Shores, 726 N.E.2d 782, 786 (Ind. 2000). The
Supreme Court explained:
To be aggrieved, the petitioner must experience a substantial grievance, a
denial of some personal or property right or the imposition of a burden or
obligation. The board of zoning appeals’s decision must infringe upon a legal
right of the petitioner that will be enlarged or diminished by the result of the
appeal and the petitioner’s resulting injury must be pecuniary in nature. A
party seeking to petition for certiorari on behalf of a community must show
some special injury other than that sustained by the community as a whole.
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Id. (internal citations and quotation marks omitted). The board of zoning appeals in Bagnall
“concede[d] that a sufficient legal interest is present in zoning cases if the petitioner owns
property that is ‘adjacent’ to or ‘surrounding’ the subject property[.]” Id. (citations omitted).
And our Supreme Court clarified:
“Surrounding” . . . encompasses petitioners who own property that is not
adjacent to, but is in the vicinity of, the property involved in variance requests.
At the same time, the term is not precise, leaving to judicial determination
whether a petitioner’s property is sufficiently close to the variance property
that its owner is “aggrieved” under the statute.
Id. However, the proximity of the petitioners’ properties to the alleged harm is not the only
criterion in determining whether they have standing; rather, we also look to the evidence
presented to determine if the petitioners have shown that they will suffer a pecuniary loss by
the granting of the variance. Bellows v. Bd. of Comm’rs of Cnty. of Elkhart, 926 N.E.2d 96,
114 (Ind. Ct. App. 2010).
Appellees argue, and the trial court concluded, that under the old statutory scheme
discussed in Bagnall, courts exercised significant discretion in interpreting and applying the
undefined term of “aggrieved” to determine whether a party had standing, but that the new
statutory scheme sets objective standing criteria limiting a court’s discretion and removing
the “actual injury” requirement. We disagree.
The first step in interpreting a statute is to determine whether the Legislature
has spoken clearly and unambiguously on the point in question. When a
statute is clear and unambiguous, we need not apply any rules of construction
other than to require that words and phrases be taken in their plain, ordinary,
and usual sense. Clear and unambiguous statutes leave no room for judicial
construction. However when a statute is susceptible to more than one
interpretation it is deemed ambiguous and thus open to judicial construction.
And when faced with an ambiguous statute, other well-established rules of
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statutory construction are applicable. One such rule is that our primary goal of
statutory construction is to determine, give effect to, and implement the intent
of the Legislature.
City of N. Vernon v. Jennings Nw. Reg’l Utils., 829 N.E.2d 1, 4-5 (Ind. 2005) (internal
citations omitted). Further:
. . . it is well-established that a judicial interpretation of a statute, particularly
by the Indiana Supreme Court, accompanied by substantial legislative inaction
for a considerable time, may be understood to signify the General Assembly’s
acquiescence and agreement with the judicial interpretation. In Durham v. U-
Haul Int’l., 745 N.E.2d 755 (Ind. 2001), . . . [the Indiana Supreme Court]
observed that “if a line of decisions of [the Supreme] Court has given a statute
the same construction and the legislature has not sought to change the relevant
parts of the legislation, the usual reasons supporting adherence to precedent are
reinforced by the strong probability that the courts have correctly interpreted
the will of the legislature.” Id. at 759. See also Robbins v. Baxter, 799 N.E.2d
1057, 1062 (Ind. 2003) (applying legislative acquiescence where no legislative
response for ten years); Halteman Swim Club v. Duguid, 757 N.E.2d 1017,
1021 (Ind. Ct. App. 2001), citing Dep[’t] of Revenue v. U.S. Steel Corp., 425
N.E.2d 659, 662 (Ind. Ct. App. 1981) (“When the court interprets a statute and
the legislature fails to take action to change that interpretation, the legislature
is presumed to have acquiesced in the court’s interpretation.”).
Fraley v. Minger, 829 N.E.2d 476, 492 (Ind. 2005).
Here, the new statutory scheme explicitly defines the requirements for a party to have
standing. For example, Section 36-7-4-1603(a)(2) requires that a petitioner be “aggrieved,”
and Section 36-7-4-1603(a)(3) requires that a petitioner be “aggrieved or adversely affected.”
However, the term “aggrieved” remains undefined, as it was under the old statutory scheme.
Concluding that our legislature, in enacting Sections 36-7-4-1600 through 1616 more than a
decade after Bagnall, has acquiesced to our Supreme Court’s interpretation of “aggrieved,”
we apply the Bagnall Court’s definition of “aggrieved” to the new statutory scheme. See id.Essentially, Appellants contend that Appellees all lack standing under Section 36-7-4-
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1603(a), and therefore Appellants are entitled to summary judgment. However, our review of
the record designated by the parties to the trial court reveals that Polzin testified before the
Board in her individual capacity as an owner of property within Westchester Estates.
(Appellants’ App. at 220.) Blair testified that, because this is an allegedly commercial use in
a residential subdivision, the use and value of the area adjacent to the Trust’s property will be
affected in a substantially adverse manner. (Appellants’ App. at 161.) And while the record
does not disclose the precise location of Polzin’s property in relation to the Trust’s property,
Appellees’ Verified Petition for Judicial Review alleges that Polzin, as a member of
Westchester Estates, has suffered or will suffer immediate and irreparable harm to her real
property rights, real property values, and use and enjoyment of her home, as a result of the
granting of a variance. (Appellants’ App. at 225.)
To prevail on their motion for summary judgment, Appellants needed to establish,
prima facie, that none of the Appellees had standing. In light of the designated materials
supporting Polzin’s standing, the Appellants failed to meet their burden. And having so
concluded, we hold that the trial court did not err when it denied Appellants’ motion for
summary judgment.
Conclusion
The trial court properly granted Appellees’ motion for summary judgment and denied
Appellants’ motion for summary judgment.
Affirmed.
NAJAM, J., and BARNES, J., concur.
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