David J. and Susan L. MacFadyen v. City of Angola, City of Angola Plan Commission, and Trine University, Inc.

Feb 12 2016, 7:47 am
ATTORNEY FOR APPELLANTS ATTORNEYS FOR APPELLEES
Stephen L. Fink CITY OF ANGOLA AND CITY OF
Barnes and Thornburg, LLP ANGOLA PLAN COMMISSION
Fort Wayne, Indiana Richard P. Samek, Esq.
Larry L. Barnard, Esq.
Carson Boxberger LLP
Fort Wayne, Indiana
ATTORNEY FOR APPELLEE TRINE
UNIVERSITY, INC.
Robert D. Moreland
Angola, Indiana
IN THE
COURT OF APPEALS OF INDIANA
David J. and Susan L. February 12, 2016
MacFadyen, Court of Appeals Case No.
Appellants-Plaintiffs, 17A03-1506-CT-556
Appeal from the DeKalb Superior
v. Court
The Honorable Kevin P. Wallace,
City of Angola, City of Angola Judge
Plan Commission, and Trine Trial Court Cause No.
University, Inc., 17D01-1203-CT-14
Appellees-Defendants.
May, Judge.
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[1] David and Susan MacFadyen appeal a decision by the Angola Plan
Commission to vacate a portion of an alley on Trine University property near
the MacFadyens’ property. As the MacFadyens did not show they were
aggrieved by the vacation, we affirm.
Facts and Procedural History
[2] The MacFadyens own lot 6 in J. Darling’s Addition to the City of Angola, and
their property is contiguous to property Trine owns. An alley runs east to west
from Darling Street, along the back of the MacFadyens’ lot, and through
Trine’s property to University Avenue. The portion of the alley on Trine’s real
estate is not improved; it is grass-covered, and there is no curb cut where the
alley meets University Avenue.
[3] Trine petitioned the Commission to vacate certain lot lines and the part of the
alley that is on Trine’s real estate. The vacation petition did not include that
part of the alley located behind the MacFadyens’ lot, and the MacFadyens can
still access their property by using the remaining portion of the alley that runs
east to Darling Street.
[4] The Commission heard evidence that the value of the land in the platted area
that Trine did not own would not be diminished by the vacation, and Trine’s
development activities in the platted area had not caused a decrease in property
values and might have increased them. David MacFadyen stated he believed
vacation of the part of the alley on Trine’s property would have “substantial
negative impact” on the value of his property because “[o]ne could drive west
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through the alley all the way to College (now University), or turn southbound
to access Gale Street. [Trine] now seeks to cut off this access.” (App. at 188.)
[5] The Commission approved Trine’s petition.
Discussion and Decision
[6] Decisions of an area plan commission are subject to the same process of review
as are local zoning decisions. Area Plan Comm’n, Evansville - Vanderburgh Cnty. v.
Hatfield, 820 N.E.2d 696, 698 (Ind. Ct. App. 2005), trans. denied. Decisions of a
zoning board are subject to court review by certiorari. Ind. Code § 36-7-4-1003.
Only a person aggrieved 1 by a decision of the board may petition for certiorari
1
We note that effective July 11, 2011, about six months before the MacFadyens brought their petition for
review, the legislature amended Ind. Code § 36-7-4-1003, which permits judicial review of plan commission
decisions. The prior version of the statute said “Each person aggrieved by” such a decision could seek
judicial review in the circuit or superior court where the affected premises was located. The amended version
eliminated the “aggrieved” language and now says “Each decision . . . is subject to judicial review . . . in the
same manner as that provided for the appeal of a final decision of the board of zoning appeals.”
Ind. Code Ann. § 36-7-4-1603 provides standing to obtain judicial review of a zoning decision is afforded to
(1) a person to whom the zoning decision is specifically directed or (2) a person aggrieved or adversely
affected by the zoning decision.
The MacFadyens do not argue there is no longer a requirement that a party be “aggrieved” or “prejudiced,”
and we decline to hold the legislature’s modification of the statutory language reflects an intent to allow
challenges by persons who are not aggrieved or prejudiced by a plan commission action. The threshold
showing in order to prevail on appeal is a showing of prejudice. Cox v. Anderson, 801 N.E.2d 775, 779 (Ind.
Ct. App. 2004). There we noted “our supreme court stated more than a century ago [that] a judgment will
not be reversed unless the record shows affirmatively both error and that the error was ‘prejudicial to the
party complaining.’” Id. (quoting Mathews v. Droud, 114 Ind. 268, 16 N.E. 599, 600 (1888). And see Dan
Cristiani Excavating Co. v. Money, 941 N.E.2d 1072, 1078 (Ind. Ct. App. 2011) (noting any appeal of a trial
court decision seeking reversal must show prejudice to the appellant).
More specifically, we have continued to recognize that a party challenging a plan commission decision must
be “aggrieved” by it. See, e.g., Dunmoyer v. Wells Cty., Indiana Area Plan Comm’n, 32 N.E.3d 785, 786 (Ind. Ct.
App. 2015) (addressing “whether the trial court erred in granting partial summary judgment in favor of the
Plan Commission and Apex upon a finding that Landowners were not aggrieved and not prejudiced by the
Zoning Decision”), trans. dismissed.
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review by the courts. Hatfield, 820 N.E.2d at 698. In interpreting what it means
to be “aggrieved” for purposes of the statute, our Supreme Court has said the
person must experience a “substantial grievance, a denial of some personal or
property right or the imposition of a burden or obligation.” Bagnall v. Town of
Beverly Shores, 726 N.E.2d 782, 785 (Ind. 2000).
[7] When reviewing a decision of a board of zoning appeals, the trial court must
determine if the board’s decision was incorrect as a matter of law. Cook v.
Adams Cnty. Plan Comm’n, 871 N.E.2d 1003, 1006 (Ind. Ct. App. 2007), trans.
denied. The trial court may not conduct a trial de novo or substitute its decision
for that of the board. Id. When reviewing a decision of a zoning board, we are
bound by the same standard of review. S & S Enters., Inc. v. Marion Cnty. Bd. of
Zoning Appeals, 788 N.E.2d 485, 489 (Ind. Ct. App. 2003), trans. denied. On
appeal, however, to the extent the trial court’s factual findings were based on a
paper record, we review the record de novo. Equicor Dev., Inc. v. The Westfield -
Washington Twp. Plan Comm’n, 758 N.E.2d 34, 37 (Ind. 2001). It does not
appear the trial court received additional evidence in this case.
[8] When an aggrieved party seeks relief in court from an adverse administrative
determination and attacks the evidentiary support for the agency’s findings, he
bears the burden of demonstrating that the agency’s conclusions are clearly
erroneous. Cundiff v. Schmitt Dev. Co., 649 N.E.2d 1063, 1066 (Ind. Ct. App.
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1995). That standard requires great deference toward the administrative board
when the petition challenges findings of fact or the application of the law to the
facts. Id. But if the allegation is that the Commission committed an error of
law, no such deference is afforded and reversal is appropriate if an error of law
is demonstrated. Id.
[9] There is a presumption that determinations of a zoning board, as an
administrative agency with expertise in the area of zoning problems, are correct
and should not be overturned unless they are arbitrary, capricious, or an abuse
of discretion. Id. A decision is arbitrary, capricious, or an abuse of discretion if
it is not supported by substantial evidence. Rice v. Allen Cnty. Plan Comm’n, 852
N.E.2d 591, 597 (Ind. Ct. App. 2006), trans. denied. We may not reweigh the
evidence or reassess the credibility of the witnesses. Burcham v. Metro. Bd. of
Zoning Appeals Div. I of Marion Cnty., 883 N.E.2d 204, 213 (Ind. Ct. App. 2008).
[10] We may not reverse because the MacFadyens were not “aggrieved” by the
vacation of a part of the alley. 2 The trial court determined “the MacFadyens
have not been deprived of access to Lot 6. In short, MacFadyens have now,
just as they have had in the past, a means of ingress and egress to the rear of
2
The MacFadyens argue in their opening brief they have a property interest in the alley, but they do not
explicitly argue they were “prejudiced” or aggrieved” by the vacation as required by Hatfield and Bagnall.
They do assert in their reply brief that they were prejudiced, but that discussion is devoid of any legal
authority in support of that allegation. We therefore decline to find error on that ground. See, e.g., Pierce v.
State, 29 N.E.3d 1258, 1267 (Ind. 2015) (appellate argument must contain the contentions of the appellant on
the issues presented supported by citations to legal authority). “A litigant who fails to support his arguments
with appropriate citations to legal authority and record evidence waives those arguments for our review.” Id.
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their residence on Lot 6.” (App. at 15.) See State v. Kimco of Evansville, Inc., 902
N.E.2d 206, 214 (Ind. 2009) (mere reduction in or redirection of traffic flow to a
commercial property is not a compensable taking of a property right), reh’g
denied, cert. denied.
[11] In Bagnall, our Indiana Supreme Court determined the Bagnalls lacked standing
to challenge zoning variances because they were not “aggrieved.” The Bagnalls
challenged a petition brought by owners of property about 150 feet from the
Bagnalls’ residence seeking a variance to permit an addition to the home
located on the lot and a variance from an ordinance regarding well location and
setback requirements. The Bagnall Court noted that to be aggrieved, a
petitioner must experience a substantial grievance, a denial of some personal or
property right, or the imposition of a burden or obligation. 726 N.E.2d at 786.
A petitioner’s injury must be pecuniary in nature. Id. The Bagnalls “presented
nothing in their petition nor did they enter any evidence in the record to suggest
[the variances] would result in infringement of a legal right resulting in
pecuniary injury.” Id.
[12] The Commission received evidence the MacFadyens still had access to the rear
of their property over the remaining portion of the alley and the value of their
property was not diminished. We acknowledge the MacFadyens’ allegations to
the contrary, but we may not reweigh that evidence. See Burcham, 883 N.E.2d
at 213. We therefore cannot find they were aggrieved.
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Conclusion
[13] As the MacFadyens were not prejudiced or aggrieved by a Commission
decision that did not diminish the value of their property or deprive them of
access to their real property via the alley in question, we affirm the vacation of
that part of the alley on Trine’s property.
[14] Affirmed.
Najam, J., and Riley, J., concur.
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