City of Bloomington v. Cheryl Underwood

FOR PUBLICATION
Aug 20 2013, 5:40 am
ATTORNEY FOR APPELLANT: ATTORNEY FOR APPELLEE:
PATRICIA M. MULVIHILL EDWARD F. MCCREA
City of Bloomington McCrea & McCrea
Bloomington, Indiana Bloomington, Indiana
IN THE
COURT OF APPEALS OF INDIANA
CITY OF BLOOMINGTON, )
)
Appellant, )
)
vs. ) No. 53A01-1212-OV-577
)
CHERYL UNDERWOOD, )
)
Appellee. )
APPEAL FROM THE MONROE CIRCUIT COURT
The Honorable Elizabeth A. Cure, Judge
Cause No. 53C04-1105-OV-832
August 20, 2013
OPINION – FOR PUBLICATION
BARNES, Judge
Case Summary
The City of Bloomington (“the City”) appeals the trial court’s grant of summary
judgment to Cheryl Underwood on the City’s ordinance violation complaint. We affirm.
Issues
The City raises three issues, which we consolidate and restate as:
I. whether the trial court properly granted summary
judgment to Underwood on the City’s complaint that
she violated Title 20 of the Bloomington Municipal
Code (“BMC”); and
II. whether the trial court properly granted summary
judgment to Underwood on the City’s complaint that
she violated Title 16 of the BMC.
Facts
Underwood owns rental property on East 8th Street in Bloomington. The property
contained two efficiency units, a one-bedroom unit, and two three-bedroom units. In
2006, the City’s Planning Commission sought to repeal and replace Title 20 of the BMC,
which concerned zoning. The Planning Commission published notice of the proposed
change in a Bloomington newspaper. The Planning Commission also held several public
meetings on the proposed changes. On December 20, 2006, the City repealed and
replaced Title 20 of the BMC. The changes were effective on February 12, 2007.
Prior to the enactment of the new zoning ordinance, Underwood’s property was
zoned Multi-dwelling Residential (RM7). After the enactment, the property and
approximately twenty other nearby properties were changed to an Institutional zoning
2
classification. Other than the notice by publication, the Planning Commission did not
specifically notify Underwood or the other property owners affected by the change.
A multi-family dwelling is not a permitted use or conditional use within an
Institutional zoning district. Because the property contained a “lawful multifamily
dwelling prior to” the enactment of the ordinance, the property “was considered a lawful
nonconforming use.” Appellant’s App. p. 29. However, Section 20.08.050 of the BMC
does not allow a lawful nonconforming use to be “intensified, expanded, enlarged,
extended or relocated . . . , nor may any structure containing or associated with such use
be expanded, enlarged, extended, relocated, or altered so as to create additional bedrooms
or other habitable space.” Id. at 277.
Title 16 of the BMC required that all residential rental units be issued an
occupancy permit prior to the unit being occupied by anyone other than the owner or the
owner’s legal dependants. In January 2010, Underwood’s property was granted a valid
three-year occupancy permit. At some point in 2010, Underwood remodeled the three-
bedroom units. According to the City, she reconfigured the space to make two five-
bedroom units rather than two three-bedroom units. During the summary judgment
proceedings and on appeal, Underwood disputes the assertion that she added two
bedrooms to each unit.
After remodeling, Underwood did not obtain a new occupancy permit. In August
2010, Underwood applied for a building permit from the Monroe County Building
Department (“Building Department”). The Building Department informed her that “they
had no problem with [her] application” but the Planning Commission refused to agree to
3
the changes because of the property’s Institutional zoning classification and provided
Underwood with written notice in September 2010. Appellee’s App. pp. 15-16. That
letter was Underwood’s first actual notification of the zoning change. Underwood
believed that her property was being misidentified as Institutional. In November 2010,
Underwood petitioned the Planning Commission to rezone the property from Institutional
to RM7.
In May 2011, the City filed a complaint against Underwood for an alleged
violation of Titles 20 and 16 of the BMC. In January 2012, the City filed a motion for
summary judgment. The City argued that: (1) Underwood violated Title 20 by
unlawfully altering a lawful nonconforming use when she remodeled the units to contain
five bedrooms each instead of three bedrooms; and (2) Underwood violated Title 16 by
allowing tenants to live at the property without first obtaining a valid occupancy permit.
Underwood filed a response to the City’s motion for summary judgment.
Underwood argued that the notice of the change to her property’s zoning classification
was improper. According to Underwood, the City was required under Indiana Code
Section 36-7-4-604(c) to give her individual notice of the zoning change, but the City
failed to do so. Underwood also argued that she did not create two additional bedrooms
in each of the units and that there was a genuine issue of fact as to whether the units have
three or five bedrooms. Underwood argued that she had a valid occupancy permit for
five occupants in each of the units and that she had not exceeded the occupancy allowed
by the permit. Underwood also argued that the Planning Commission was selectively
enforcing the ordinances and that she had been improperly targeted for enforcement.
4
The City then filed a reply brief. The City argued that individual notice of the
zoning change was not required by the statute or due process, that Underwood was not
treated differently than other property owners, that Underwood’s property was a lawful
nonconforming use prior to the remodeling, that no genuine issues of material fact existed
as to the number of bedrooms in the units, and that her occupancy permit was invalid
after the remodeling.
After a hearing, the trial court “dismissed” the action because Underwood “was
not given any notice under [Indiana Code Section 36-7-4-]604(c).” Id. at 6. The parties
sought clarification of the order, and after a hearing in October 2012, the trial court
issued the following:
3. The Court now finds that its order dated August 30, 2012,
dismissing the case should have been an Order granting
Summary Judgment in favor of the Defendant on Count I and
Count II of the Plaintiff’s Complaint.
4. The Court hereby modifies its August 30, 2012 Order
dismissing the case to an Order granting Summary Judgment
in favor of the Defendant on Counts I and II of the Plaintiff’s
Complaint because the Court finds that the Plan Commission
rezoned the property of the Defendant in violation of the
requirements of Ind. Code § 36-7-4-604(c) and the rezoning
is, therefore, invalid.
The Fourteenth Amendment to the United States Constitution
by its Due Process Clause requires notice and an opportunity
to be heard before property rights can be taken away by state
action, and the Indiana Constitution in Article I § 12
incorporates this fundamental right. While the Indiana Court
of Appeals have held that rezoning is legislative in nature
and, therefore, due process rights are not implicated, the
Indiana legislature through the Indiana Code recognized this
fundamental right when it wrote the requirements for
rezoning by a city or other municipality.
5
Section 36-7-4-604 et seq of the Indiana Code reads in
essence (and with emphasis added) that before rezoning takes
place (a) the plan commission must hold a hearing, (b) the
plan commission shall give notice of this hearing by
publication, and (c) the plan commission shall also provide
for due process notice to interested parties. Everything else in
this section of the code has to do with form and specific
content. No matter what else, the law requires three actions
on the part of the plan commission, not two.
The City argues that because section (c) gives the plan
commission some leeway as to how it will fulfill the three
requirements, the City can choose to use the action required
by section (b) to serve for section (c) as well. But the plan
commission would have done only two of the required three
actions. And this third action is the one that assures the
property owners the safe guards of their due process rights.
The City would have this Court read the permissiveness of
the way in which notice is effected in section (c) in such a
way as to dispense with the third requirement altogether. But
the statute reads: “shall also” not “may if it wants to” nor
“should do if it’s not too much trouble.” The rules of
statutory construction require the Court not only to give
words their ordinary meaning but also to give every word
effect, and “no part of the statute is to be construed so as to be
meaningless if it can be reconciled with the rest of the
statute.” See Gray v. D & G, Inc., 938 N.E.2d 256, 259 (Ind.
Ct. App. 2010). In other words, this Court must construe the
words of a statute in such a way as to give each and every
section of the statute meaning if at all possible. The City’s
interpretation of Ind. Code § 36-7-4-604(c) writes this
requirement out of the statute and interprets “shall also” to
mean “may.” This Court does not agree with this
interpretation and its consequences.
Because rezoning is invalid the Court issues summary
judgment in favor of the Defendant on both Counts I and II of
the Plaintiff’s Complaint.
6
Id. at 9-10. In October 2012, the City Council passed an ordinance that restored
Underwood’s property and five other properties back to the RM7 zoning classification.
Despite the subsequent rezoning, the City now appeals.
Analysis
The City argues that the trial court erred by granting summary judgment to
Underwood on its claims. Summary judgment is appropriate when there is no genuine
issue of material fact and the moving party is entitled to judgment as a matter of law.
Ind. Trial Rule 56. We liberally construe all designated evidentiary material in a light
most favorable to the non-moving party to determine whether there is a genuine issue of
material fact. Bradshaw v. Chandler, 916 N.E.2d 163, 166 (Ind. 2009). The party that
lost in the trial court has the burden of persuading the appellate court that the trial court
erred. Id. Our review of a summary judgment motion is limited to those materials
designated to the trial court. Mangold v. Ind. Dep’t of Natural Res., 756 N.E.2d 970,
973 (Ind. 2001).
Where a trial court enters findings of fact and conclusions thereon in granting a
motion for summary judgment, as the trial court did in this case, the entry of specific
findings and conclusions does not alter the nature of our review. Rice v. Strunk, 670
N.E.2d 1280, 1283 (Ind. 1996). In the summary judgment context, we are not bound by
the trial court’s specific findings of fact and conclusions thereon. Id. They merely aid
our review by providing us with a statement of reasons for the trial court’s actions. Id.We first note that, in a footnote, Underwood very briefly argues the subsequent
rezoning of her property back to the RM7 classification “could render the issues raised in
7
this appeal moot.” Appellee’s Br. p. 3 n.1. The City does not address this argument or
even acknowledge that the property’s original zoning has been restored. Without more,
we cannot determine whether the issue regarding Title 20 is moot, and we will address
the City’s arguments regarding Title 20. Moreover, the Title 16 issue does not appear to
be affected by the rezoning.
I. Title 20 Violation
The City’s motion for summary judgment claimed that Underwood violated Title
20 by unlawfully altering a lawful nonconforming use when she allegedly remodeled the
units to contain five bedrooms each instead of three bedrooms. Underwood responded, in
part, by arguing that she did not receive notice of the City’s change of her property’s
zoning classification and status as a lawful nonconforming use. The trial court agreed
with Underwood, concluding that the rezoning was invalid because the City failed to
comply with Indiana Code Section 36-7-4-604(c).1
“Indiana Code sections 36-7-4-602 et seq. govern the amendment of a zoning
ordinance and zoning map.” Scalambrino v. Town of Michiana Shores, 904 N.E.2d 673,
681 (Ind. Ct. App. 2009). A plan commission must take several steps prior to enacting
such amendments, including providing notice of and holding a public hearing and
certifying the proposal to the legislative body. See Ind. Code §§ 36-7-4-604, 36-7-4-605.
Indiana Code Section 36-7-4-604(b) requires the plan commission to give notice of a
public hearing on proposed amendments to the zoning ordinance by publishing notice one
1
The parties do not discuss the timeliness of Underwood’s challenge to the rezoning.
8
time, at least ten days before the date of the hearing. Further, Indiana Code Section 36-7-
4-604(c) requires:
The plan commission shall also provide for due notice to
interested parties at least ten (10) days before the date set for
the hearing. The commission shall by rule determine who are
interested parties, how notice is to be given to interested
parties, and who is required to give that notice.
The notice under Indiana Code Section 36-7-4-604(c) is at issue here. According to
Underwood, she was an interested party and was entitled to “due notice” of the zoning
change. The City argues that it provided notice by publication, which was within its
discretion and proper under Indiana Code Section 36-7-4-604(c).
This argument requires that we interpret Indiana Code Section 36-7-4-604. “The
first step in interpreting a statute is to determine whether the Legislature has spoken
clearly and unambiguously on the point in question.” City of Carmel v. Steele, 865
N.E.2d 612, 618 (Ind. 2007). 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. Id. Clear and unambiguous statutes leave no room
for judicial construction. Id. However, when a statute is susceptible to more than one
interpretation it is deemed ambiguous and, thus, open to judicial construction. Id. When
faced with an ambiguous statute, we apply other well-established rules of statutory
construction. Id. One such rule is that our primary goal of statutory construction is to
determine, give effect to, and implement the intent of the Legislature. Id. To effectuate
legislative intent, we read the sections of an act together in order that no part is rendered
meaningless if it can be harmonized with the remainder of the statute. Id. We also
9
examine the statute as a whole. Id. Further, we do not presume that the Legislature
intended language used in a statute to be applied illogically or to bring about an unjust or
absurd result. Id.Several other zoning statutes contain similar language regarding due notice to
interested parties. See I.C. §§ 36-7-4-706, 36-7-4-920. However, Indiana courts have
not interpreted this specific language. Indiana Code Section 36-7-4-604(b) clearly
requires the planning commission to give notice by publication of the amendments to the
zoning ordinance, which the City did. Indiana Code Section 36-7-4-604(c) also clearly
requires “due notice to interested parties at least ten (10) days before the date set for the
hearing.” We recognize that the planning commission is given significant leeway in
defining “interested parties” and “due notice.” I.C. § 36-7-4-604(c). The City does not
dispute that Underwood was an “interested party.” Rather, the City claims that the notice
by publication was sufficient to satisfy the “due notice” requirement.
Despite the significant leeway given to the City in determining the boundaries of
“due notice,” we conclude that, in this case, “due notice” required more than the notice
by publication given pursuant to section 604(b). We must examine the statute as a whole.
If we adopt the City’s interpretation, we would be eliminating section 604(c) in all
circumstances. Although there may be circumstances where notice by publication to
interested parties would be sufficient, the City makes no argument here that providing
some additional notice to those properties where the zoning classification was changing
would have been onerous. In fact, the City made no effort at all to notice the properties
affected by the zoning change, other than the notice by publication. It is clear that the
10
City knew, or could have known and identified, with a reasonable effort, the properties in
question. If the City is not required to provide additional notice in the case of such a
significant zoning classification change, we cannot imagine a circumstance where it
would be required to provide additional notice under Indiana Code Section 36-7-4-
604(c).
“Rezoning is a legislative process.” Rush v. Elkhart Cnty. Plan Comm’n, 698
N.E.2d 1211, 1218 (Ind. Ct. App. 1998) (citing Hills v. Area Plan Comm’n of Vermillion
County, 416 N.E.2d 456, 461 (Ind. Ct. App. 1981)), trans. denied. “The General
Assembly has provided detailed procedures to provide due process to interested persons.”
Id. “If the State imparts a due process right, then it must give that right.” Id. (citing City
of Mitchell v. Graves, 612 N.E.2d 149, 152 (Ind. Ct. App. 1993)). The legislature
requires the City to provide “due notice” to “interested” persons. The City does not
dispute that Underwood was an interested person, and we conclude that the City failed to
give her “due notice” when it adopted the new zoning ordinance and changed the zoning
of her property.2 See, e.g., Scalambrino, 904 N.E.2d at 681 (noting that the plan
commission provide notice by publication and also mailed letters to the adjacent property
owners); Bd. of Zoning Appeals, Bloomington, Ind. v. Leisz, 702 N.E.2d 1026, 1027
(Ind. 1998) (noting that the city published notice of an ordinance change and also mailed
notice to all owners of rental property registered under a separate housing ordinance).
2
The City also argues that Underwood was aware of the zoning amendment as evidenced by her October
2006 letter to the planning director regarding the zoning amendment. However, that letter concerned
another piece of property, not the property at issue here. Underwood designated evidence that she was
unaware of the proposed change in zoning on the property at issue here.
11
The City also argues that Indiana Code Section 36-7-4-604(e) applies here. That
statute provides: “A zoning ordinance may not be held invalid on the ground that the plan
commission failed to comply with the requirements of this section, if the notice and
hearing substantially complied with this section.” I.C. § 36-7-4-604(e). The City argues
that it substantially complied with the statute by providing notice by publication. In
support of their argument, the City relies on Scalambrino, 904 N.E.2d at 681. There, we
held that the plan commission’s public notice and notice to interested parties, which was
sent five days late, substantially complied with the notice statute. Scalambrino is
distinguishable because, in that case, the interested parties were given notice, albeit late
notice. Here, the interested parties were not given any notice whatsoever other than the
notice by publication. We conclude that the City did not substantially comply with the
notice provisions. Because the notice of the zoning amendment was not proper, we
conclude that the trial court did not err by granting summary judgment to Underwood.
II. Title 16
The City also argues that the trial court erred by granting summary judgment to
Underwood on the BMC Title 16 violation claim. This issue is separate from the Title 20
zoning issue. The City argues that Underwood violated Title 16 by allowing tenants to
live at the property without first obtaining a valid occupancy permit. According to the
City, Underwood’s occupancy permit was for three bedrooms in the two units at issue,
and Underwood “nullified” the occupancy permit by remodeling to allegedly add
additional bedrooms. Appellant’s Reply Br. p. 8.
12
In January 2010, Underwood was granted an occupancy permit, and that permit
was not set to expire until January 2013. The occupancy permit was for two efficiency
units, one unit with one bedroom, and two units with three bedrooms. The “occupancy
load” was one person for each of the efficiencies, two people for the one bedroom unit,
and five people for each of the three bedroom units, for a total of fourteen tenants.
Appellant’s App. p. 359. Underwood argues that her occupancy permit was never
revoked and that, even after the three bedroom units were remodeled in 2010, she never
exceeded fourteen tenants. Underwood also argues that Title 16 does not contain any
requirement that she get a new occupancy permit to replace the existing permit after the
units were remodeled.
BMC 16.04.080 requires all rental units to have a “current occupancy permit.” Id.
at 354. Although the City argues that Underwood’s valid occupancy permit was
“nullified” when she remodeled the units, the City cites no relevant authority for the
proposition that a valid occupancy permit is “nullified” or revoked by remodeling. The
City also argues that Underwood was required to have the property reinspected for
compliance with Title 16 after it was remodeled and that, because the property was not
inspected after the remodel, Underwood did not possess a valid occupancy permit.
However, again, the City cites no relevant authority for the proposition that Underwood
was required to have the property reinspected after the remodel for compliance with Title
16.
The City had the burden of demonstrating that there were no genuine issues of
material fact and that it was entitled to judgment as a matter of law. “It is well settled
13
that we will not consider an appellant’s assertion on appeal when he has failed to present
cogent argument supported by authority and references to the record as required by the
rules.” Shepherd v. Truex, 819 N.E.2d 457, 463 (Ind. Ct. App. 2004). “If we were to
address such arguments, we would be forced to abdicate our role as an impartial tribunal
and would instead become an advocate for one of the parties.” Id. “This, clearly, we
cannot do.” Id. Based on the City’s limited argument, we are unable to determine that
the trial court’s decision is erroneous. The City has failed to meet its burden on appeal of
proving that the trial court erred by granting summary judgment to Underwood on this
issue.
Conclusion
The trial court properly granted summary judgment to Underwood on the City’s
Title 20 violation claim. Further, the City has failed to demonstrate that the trial court
erred by granting summary judgment to Underwood on the City’s Title 16 violation
claim. We affirm.
Affirmed.
CRONE, J., and PYLE, J., concur.
14