Jose Andrade v. City of Hammond and Hammond Board of Public Works and Safety

FILED
Nov 15 2018, 9:02 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEES
Patrick B. McEuen David C. Jensen
Portage, Indiana John M. McCrum
Robert J. Feldt
Kevin T. McNamara
Eichhorn & Eichhorn, LLP
Hammond, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Jose Andrade, November 15, 2018
Appellant-Plaintiff, Court of Appeals Case No.
18A-MI-1199
v. Appeal from the Lake Superior
Court
City of Hammond and The Honorable Calvin D.
Hammond Board of Public Hawkins, Judge
Works and Safety, Trial Court Cause No.
Appellees-Defendants. 45D02-1508-MI-15
Riley, Judge.
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STATEMENT OF THE CASE
[1] Appellant-Plaintiff, Jose Andrade (Andrade), appeals the trial court’s order
affirming the decision of Appellee-Defendant, Hammond Board of Public
Works and Safety (the Board), to restore the 6609 Jefferson Avenue Home (the
Home) owned by him to a single-family dwelling.
[2] We affirm.
ISSUES
[3] Andrade presents us with three issues on appeal, which we restate as:
1) Whether the Board exceeded its statutory authority when it ordered
Andrade to restore the Home to a single-family dwelling;
2) Whether the Board’s finding that the Home was originally built as a
single-family residence was supported by substantial evidence; and
3) Whether the failure of the City of Hammond (the City) to produce
the 1927 Hammond building code in response to Andrade’s subpoena
duces tecum merits reversal.
FACTS AND PROCEDURAL HISTORY
[4] Andrade is a landlord who owns thirty-two properties with a total of sixty-two
rental units. The Home was constructed in Hammond in 1927 and was
purchased by Andrade in 1998. The Home was divided into five separate
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apartments before Andrade purchased it, and he continued to rent the five
units. The City first inspected the Home on March 13, 2013. That inspection
yielded a Notice of Violation mailed on May 10, 2013, (the 2013 Notice) which
provided that the Home had been found to be an unsafe building in violation of
Indiana’s Unsafe Building Law (the UBL). The 2013 Notice listed various
Hammond Municipal Code and International Building Code violations that the
City relied upon to conclude that the Home was unsafe. All five of the units of
the Home were marked as uninhabitable by the City. On May 14, 2015, the
Board held a hearing on the 2013 Notice in Andrade’s absence, which the Lake
County Superior Court subsequently found had taken place without proper
notice to Andrade. The Lake County Superior Court remanded the matter to
the Board for further proceedings.
[5] Because of the amount of time that had elapsed since the first inspection, the
City had the Home re-inspected on September 8, 2016, by Building
Commissioner Kurtis Koch (Koch). As a result of that inspection, the City
issued Andrade a second Notice of Violation (the 2016 Notice) which provided
that the Home had been found to be an unsafe building pursuant to the UBL.
The 2016 Notice identified twelve groupings of impaired structural conditions,
eleven groupings of fire hazards, and six groupings of “a violation of a statute
or ordinance concerning building condition or maintenance” all of which,
under the UBL, rendered the Home an unsafe building. (Appellant’s App. Vol.
II, p. 42).
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[6] A hearing on the 2016 Notice was scheduled for January 12, 2017. On January
4, 2017, Andrade served the City’s Chief of Inspections Kelly Kearney
(Kearney) with a subpoena duces tecum requesting that he bring to the hearing
all “regulations, ordinances, and/or statutes” used by him to support his
previous testimony before the Board at the first hearing regarding various
unsafe conditions at the Home. (Appellant’s App. Vol. II, pp. 44-45). The City
did not comply with Andrade’s subpoena.
[7] The January 12, 2017, hearing took place before the three-member Board.
Koch testified regarding various unsafe conditions in the home, including the
Home’s balloon framing which was typically used in single-family homes built
around 1927. This was a significant safety concern because that type of framing
allowed fire and smoke to travel through a home unimpeded. Koch also
testified that the Home’s rear stairway was unsafe under the UBL because the
stair width was inadequate to accommodate any first responders and their gear
in an emergency. Koch identified other unsafe conditions in the home, such as
the basement entrance which could not accommodate first responders, the fact
that the bedroom basement lacked windows preventing escape in case of fire,
and a chimney chase with inadequate fire stopping. Koch concluded that the
Home was built in 1927 as a single-family home because it was built to the
same standards as hundreds of other single-family homes in the area and had
none of the structural elements which would have been present in a multi-
family structure built in 1927. It was Koch’s opinion that, in its current
configuration, the Home was unsafe. Andrade’s counsel cross-examined Koch
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on a variety of topics, including the width of the stairs in the rear stairway, the
Home’s water heater for which Andrade also had been cited, inaccuracies in the
City’s permitting lists, and the similarities between the two inspection reports
which formed the basis of the 2013 and 2016 Notices of Violation.
[8] Kearney testified at the January 12, 2017, hearing that the City’s ledger of
building permits showed that the Home was issued a building permit for a
“[n]ine room frame” which indicated to him that the Home had been
constructed as a single-family home. (Appellee’s App. Vol. II, p. 103).
Kearney noted that during that era, if a structure was to be built with multiple
apartments, it would have been indicated in the ledger entry. It was Kearny’s
opinion that the Home was unsafe because it had impaired structural
conditions, fire hazards, and ordinance violations. Kearny requested on behalf
of the City that the Board remove any apartments from the Home that were
unsafe.
[9] On cross-examination, Andrade’s counsel asked Kearney questions about what
the 1927 Hammond building code would have required in terms of basement
window height, the use of wooden support beams in the home, kick plates on
stairs, hallway doors, basement ceiling height, and electrical meters. A
discussion ensued between Andrade’s counsel and the City’s counsel regarding
the City’s failure to bring to the hearing the documents Andrade sought in his
subpoena duces tecum. The City posited that it was not required to bring the
requested documents for a variety of reasons, including that the material sought
was publicly available. The discussion ended as follows:
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Andrade’s Counsel: But I asked for the ones that particularly he
relied on in particular.
City’s Counsel: Which are identified in the notice that’s already
been offered in the exhibit.
Andrade’s Counsel: Let’s move on. Let’s move on.
(Appellee’s App. Vol. II, p. 120).
[10] Andrade offered testimony and documentary evidence to the Board that he
contended proved that the Home was built as a multi-family unit in 1927.
Andrade’s counsel argued to the Board during Andrade’s testimony that “if this
house is ruled a single-family house, [Andrade] knows that, you know, it’s over
for him with this house.” (Appellee’s App. Vol. II, pp. 182-83).
[11] At the end of the hearing, the City argued to the Board that, regardless of
whether the Home was built as a single or multi-family home, the UBL gave
them the authority to act to address unsafe buildings. During his closing
remarks to the Board, Andrade’s counsel noted that “[o]pposing counsel has
indicated that the issue is the [UBL], which we understand.” (Appellee’s App.
Vol. III, p. 2). Andrade’s counsel also argued
And [Andrade] understood that his building was a single-family
home – was not – excuse me – was not a single-family home
when constructed. And I want to focus your Board on that – the
Board on that issue. Because if it is not a single-family home,
then it will stay the way it is depending on what you do in your
decision.
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However, if it is ruled that it was a single-family home, then this
property can’t exist economically.
(Appellee’s App. Vol. III, p. 2).
[12] On March 9, 2017, the Board issued twenty-five findings of fact and its
conclusions of law in which it found in relevant part as follows:
5. The property as currently configured contains five apartment
units, including one in the basement, two on the main floor, and
two on the second floor.
****
7. Commissioner Koch found that the cellar apartment was
unsafe, as were two second floor apartments and one first floor
apartment.
****
19. The ledger entry in the City of Hammond records reflects that
the building at 6609 Jefferson was built as a nine-room frame
construction.
20. There are no building permits to show that the property was
lawfully converted to a multi-dwelling property at any point in its
history.
21. The building was not erected as a multi-unit structure in 1927
and was never legally converted to a multi-unit apartment
building thereafter.
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22. The property at 6609 Jefferson is currently zoned Rl-U,
which is Urban Single Family Residential District, and as such
allows for two-family attached dwelling units not to exceed
twenty percent (20%) of the dwelling units on the block.
23. The Inspections Department seeks to have the unsafe units
removed on the property pursuant to the Indiana Unsafe
Building Law, as adopted by local ordinance.
****
25. Mr. Andrade has made some general repairs to the property
since he bought it in 1998; however, there is no evidence that Mr.
Andrade has made or has caused to be made major structural
repairs that would remove the unsafe conditions existing on and
within the premises.
(Appellant’s App. Vol. II, pp. 187, 189-90). The Board concluded that “[a]s
currently configured, [the Home] contains structural conditions and fire hazards
that are dangerous to its occupants, rendering the premises unsafe and in
violation of [the UBL].” (Appellant’s App. Vol. II, p. 194). In addition, the
Board concluded that the apartments in the Home were never lawfully
constructed and cited to case law pertaining to the zoning law concept of a
lawful non-conforming use. The Board found that the apartments could not be
lawfully occupied in the Home’s present condition but that “[s]hould proper
zoning approval be obtained, the maximum number of units permitted at this
location is two units.” (Appellant’s App. Vol. II, p. 195). The Board ordered
Andrade to restore the Home to a single-family dwelling.
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[13] Andrade sought judicial review of the Board’s orders. On February 8, 2018, the
trial court held an evidentiary hearing on Andrade’s request for review. On
March 28, 2018, the trial court entered its findings of fact and conclusions of
law in which it found in relevant part:
11. The Hammond building inspectors offered opinion
testimony to the Board in 2017 that [Andrade’s] building “does
not meet any Code for multi-family dwellings in 1927”, but the
failure to produce the Code, as subpoenaed by [Andrade],
precluded any cross examination as to the grounds for those
opinions.
(Appellant’s App. Vol. II, pp. 15-16). The trial court found that the Board’s
findings, namely that the Home had the unsafe conditions of inadequate fire
stopping, lack of fire blocking, flammable support beams, inadequate fire
separation, improperly braced stairs of inadequate width, lack of basement
apartment bedroom windows, low basement ceilings that would contribute to
smoke accumulation and prevent egress in an emergency, and inadequate
smoke detectors, were well-supported by the record. The trial court concluded
that the original permitting of the Home as either single-family or multi-family
was not determinative of whether the Home was unsafe as defined by the UBL
and as found by the Board. The trial court upheld the Board’s order that
Andrade restore the Home to a single-family dwelling.
[14] Andrade now appeals. Additional facts will be provided as necessary.
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DISCUSSION AND DECISION
I. Standard of Review
[15] This matter comes before us on appeal from a judicial review of an
administrative order. The City and the Board are not subject to the
Administrative Orders and Procedures Act (AOPA), which specifically
excludes political subdivisions. Ind. Code § 4-21.5-1-3 (excluding political
subdivisions from the definition of “agency”). The City and the Board are
political subdivisions pursuant to Indiana Code sections 36-1-2-13 and -10.
Nevertheless, Indiana courts have applied general administrative law principles
to contexts outside of administrative agency actions governed by AOPA, and
so, as in those cases, we will apply those principles here. See City of Jasper v.
Collingnon, 789 N.E.2d 80, 87 (Ind. Ct. App. 2003) (applying administrative law
principles to action taken by a city and its Wage Committee), trans. denied.
[16] The UBL provides that an action taken to enforce its provisions is subject to
judicial review, which is done de novo. Ind. Code § 36-7-9-8(a), (c). Under the
de novo standard of review, a court
may, to a limited extent, [weigh] the evidence supporting the
finding of fact by an administrative agency. But it may negate
that finding only if, based upon the evidence as a whole, the
finding of fact was
(1) arbitrary,
(2) capricious,
(3) an abuse of discretion,
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(4) unsupported by the evidence or
(5) in excess of statutory authority.
Kollar v. Civil City of South Bend, 695 N.E.2d 616, 619 (Ind. Ct. App. 1998), trans.
denied. A trial court may not substitute its judgment for that of the agency, and
the facts are to be determined but once. Id. at 619-20. What is more, when, as
in this case, the trial court enters special findings of fact pursuant to Indiana
Trial Rule 52(D), we conduct a two-step review wherein we first determine
whether the evidence supports the findings and then whether the findings
support the judgment. Foursquare Tabernacle Church of God in Christ v. Dep’t of
Metro. Dev. of Indianapolis, 630 N.E.2d 1381, 1386 (Ind. Ct. App. 1994), trans.
denied. We will reverse the trial court’s judgment only if it is clearly erroneous,
and a judgment is clearly erroneous only if it is unsupported by the findings of
fact and conclusions of law entered on those findings. Id.
II. The Board’s Authority
[17] Andrade contends that the Board exceeded its statutory authority by acting as a
zoning authority when it ordered him to restore the Home to a single-family
dwelling. 1 The City counters that it acted within the authority provided to it by
1
Andrade’s contentions that the Board’s actions were in violation of the Takings Clause and were an
abuse of discretion are undeveloped and unsupported by cogent authority in contravention of Indiana
Appellate Rule 46(A)(8)(a) (appellate argument must be supported by cogent argument supported by
citations to authority). Those arguments are waived for our review. See Price v. Review Bd. of Indiana
Dep’t of Workforce Dev., 2 N.E.3d 13, 16-17 (Ind. Ct. App. 2013) (finding appellant’s argument waived
for failure to provide cogent argument).
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the UBL. 2 Administrative entities are creatures of statute and cannot exercise
power beyond that given in their creation. Adkins v. City of Tell City, 625 N.E.2d
1298, 1302 (Ind. Ct. App. 1993). Thus, in order to address Andrade’s
argument, we must examine the language of the UBL itself to discern what
authority it provided to the Board to act. Statutory interpretation is a question
of law reserved to the courts. City of Kokomo v. Iseminger, 868 N.E.2d 1169,
1171 (Ind. Ct. App. 2007), trans. denied. “If the language of the statute is clear
and unambiguous, it is not subject to judicial interpretation.” Id. In other
words, an appellate court must give an unambiguous statute its clear and plain
meaning. McCabe v. Commissioner, Indiana Dep’t of Ins., 949 N.E.2d 816, 819
(Ind. 2011).
[18] The UBL provides a statutory framework for a city, town, or county to address
unsafe buildings. I.C. § 36-7-9 et seq. The UBL defines an unsafe building one
that is
(1) in an impaired structural condition that makes it unsafe to a
person or property;
(2) a fire hazard;
2
The City argues that Andrade waived the issue of whether this matter was governed by the UBL, but
it does not argue that Andrade waived his claim that the Board acted in excess of its statutory authority
provided by the UBL.
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(3) a hazard to the public health;
(4) a public nuisance;
(5) dangerous to a person or property because of a violation of a
statute or ordinance concerning building condition or
maintenance; or
(6) vacant or blighted and not maintained in a manner that
would allow human habitation, occupancy, or use under the
requirements of a statute or an ordinance[.]
I.C. § 36-7-9-4(a). The statute is written in the disjunctive, meaning that a
building may be considered unsafe if it falls into any one of the six categories
listed in the statute. See Bourbon Mini-Mart, Inc. v. Commissioner, Indiana Dep’t of
Envtl. Mgmt., 806 N.E.2d 14, 20 (Ind. Ct. App. 2004) (noting that “or” is a
function word to indicate an alternative). 3 If a premises is unsafe under Section
4, the UBL provides that the enforcement authority may issue an order
requiring action relative to the unsafe premises, including, in relevant part:
(1) vacating the unsafe building;
3
After Appellees filed their brief but before Andrade’s Reply brief was due, the court handed down City of
Charlestown v. Charlestown Pleasant Ridge Neighborhood Ass’n Corp., No. 10A01-1712-CT-2896, 2018 WL
4290649, slip op. at *4-6 (Ind. Ct. App. Sept. 10, 2018), which concerned interpretation of subsection (5)
relating to buildings which are deemed unsafe due to a statutory or ordinance violation, which is only one of
the six enumerated conditions which can cause a building to be considered unsafe under the UBL.
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***
(6) demolition and removal of part of an unsafe building.
I.C. § 36-7-9-5(a). Thus, the enforcement authority may order the unsafe
building to be vacated and partially demolished and removed.
[19] Here, the Board entered an order granting the City’s request that the four unsafe
apartments in the Home be removed. That process would necessitate the
vacating, demolition, and removal of the unsafe apartments, all of which would
effectively return the Home to a single-family home. Thus, the action ordered
by the Board falls squarely within the ambit of the UBL’s unambiguous
provisions.
[20] In addition, we cannot agree with Andrade’s characterization of the Board’s
order, as affirmed by the trial court, as one which sought to “merely enforce the
Hammond Zoning Ordinance.” (Appellant’s Br. p. 16). Both Notices of
Violation were issued pursuant to the UBL, not local zoning ordinances. The
2016 Notice alleged twelve groupings of impaired structural conditions, eleven
groupings of fire hazards, and six groupings of statute or ordinance violations
that did not pertain to zoning, so Andrade’s contention that the City only
asserted zoning ordinance violations as the basis for its enforcement action is
factually incorrect. The Board exhibited no indication at the hearing in this
matter that it acted under any other authority apart from the UBL. In its
decision, the Board made detailed findings regarding conditions in the Home
which rendered it unsafe under the UBL, including that the Home had impaired
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structural conditions and fire hazards. Findings and conclusions made by the
Board that the Home was not a legal, non-conforming use or that the Home did
not conform to current zoning laws may have been pertinent to explaining the
history of how the Home came to be unsafe, but they did not convert this
matter from one addressing unsafe conditions in the Home into a zoning
enforcement action.
[21] We also note that Andrade’s arguments on appeal are somewhat inconsistent
with his counsel’s acknowledgement at the Board hearing that the proceedings
were based on the UBL and with his request that the Board focus on Andrade’s
contention that the Home was constructed as a multi-family structure.
Andrade’s counsel made it clear to the Board that the Home would no longer
be profitable to Andrade if it were declared a single-family home. The Board’s
reference in its decision to the fact that the home was zoned for two units was
pertinent to addressing that concern. Because the UBL provided the authority
for the action ordered by the Board and the Board did not make any
impermissible findings to support that action, we conclude that the Board did
not exceed its statutory authority when it ordered Andrade to restore the Home
to a single-family dwelling.
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III. Sufficiency of the Evidence Supporting the Board’s Order
[22] Andrade challenges the Board’s finding, as upheld by the trial court, that the
Home was constructed as a single-family home. 4 Andrade contends that “[t]he
Board’s Order is without substantial evidence and not in accordance with law”
because he met his burden of proof to show that the Home was constructed as a
multi-family unit. (Appellant’s Br. p. 19). Andrade’s argument on this point is
based upon his erroneous assertion that the Board acted as a zoning
enforcement entity and that proof that the Home was originally built as a multi-
family structure would bar the Board’s order that he restore the Home to a
single-family home.
[23] We agree with Appellees that this argument is misplaced, because the UBL
provides that any order issued to address an unsafe building “supersedes any
permit relating to building or land use, whether that permit is obtained before or
after the order is issued.” I.C. § 36-7-9-5(a) (emphasis added). Thus, for
purposes of the UBL, it is of no moment how the property was originally built
or zoned.
[24] Nevertheless, we will address the merits of Andrade’s argument. 5 Evidence was
presented to the Board that the home was originally issued a building permit in
4
Because Andrade only challenges that sufficiency of the evidence supporting these specific findings
and not the Board’s findings and conclusion regarding the actual unsafe conditions in the Home, we do
not address the totality of the evidence supporting the Board’s decision as upheld by the trial court.
5
Inasmuch as Andrade raises a claim of impropiety or bias on the part of one of the Board members,
we find that this argument was not raised at the trial court level and, therefore, is waived for our review.
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1927 for a nine-room frame, which indicated to Kearney that the home was
built as a single-family home. The original building permit issued for the Home
did not note that there would be apartments there, which Kearney indicated
would typically have been noted if it were to be built as a multi-family structure.
Koch testified that the Home did not have any structural elements typical of a
multi-family structure built in 1927. Koch found the home comparable to many
other single-family homes in the area built around 1927, and he expressed his
opinion that the Home was built in 1927 as a single-family home. In light of
this evidence that supports the Board’s findings as affirmed by the trial court,
we cannot say that the trial court’s conclusion that the home was built in 1927
as a single-family home was clearly erroneous. Foursquare Tabernacle, 630
N.E.2d at 1386. Andrade simply directs our attention to evidence in the record
that does not support the Board’s and the trial court’s conclusions, which is
unpersuasive given that we do not substitute our judgment for that of the Board
or redetermine the facts of the case. Kollar, 695 N.E.2d at 619.
IV. Discovery Violation
[25] Andrade’s final argument is that the Board’s order should be reversed because
the City did not comply with his subpoena duces tecum, which he claims resulted
in his inability to cross-examine the City’s experts, Koch and Kearney. 6 As a
See Kollar, 695 N.E.2d at 622 (“A party may only obtain judicial review of issues that were properly
raised to the trial court.”).
6
The portion of Andrade’s argument based on Indiana
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result of this non-compliance, Andrade contends that the “Board’s decision was
made without observance of procedure required by law.” (Appellant’s Br. p.
23). At the outset, we note that, contrary to Andrade’s assertion on appeal, the
trial court did not find that he had been “wholly precluded” from cross-
examining the City’s expert witnesses. (Appellant’s Br. p. 25). Rather, the trial
court found that the City’s non-compliance merely had precluded Andrade
from cross-examining the experts regarding their opinion that the Home did not
meet the standards of the 1927 building code for multi-family dwellings.
[26] Pretrial discovery is meant to promote the interests of justice and prevent unfair
surprise by allowing the defense adequate time to prepare. Jacobs v. State, 640
N.E.2d 61, 66 (Ind. Ct. App. 1994) (emphasis added), trans. denied. As a
general matter, the proper remedy for a discovery violation is a continuance.
Warren v. State, 725 N.E.2d 828, 832 (Ind. 2000). A failure to request a
continuance upon moving to exclude evidence constitutes a waiver of any
alleged error pertaining to noncompliance with a discovery order. Id. Here,
although Andrade objected at the Board hearing on the basis that the City had
not complied with his subpoena, he did not request a continuance or seek to
exclude either Kearney’s or Koch’s testimony before the Board. Therefore, we
conclude that Andrade has waived his claim.
Evidence Rule 705 was not raised to the trial court and is, therefore, waived for our review. Kollar, 695
N.E.2d at 622.
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[27] However, even if he had not waived his claim, we would not reverse the
Board’s decision. This matter commenced in March of 2013. Kearney testified
at the first Board hearing on May 14, 2015, and the Lake County Superior
Court remanded the matter for further proceedings on June 23, 2016, almost six
months before the second hearing before the Board on January 12, 2017. In
addition, Andrade deposed Koch on at least one occasion during the pendency
of this matter. Despite being aware of the substance of Kearney’s opinions, at
no time did Andrade seek an order that the City comply with his subpoena or
request that the Board exclude Kearny’s or Koch’s testimony or seek a
continuance when the matter of the City’s non-compliance came up during the
January 12, 2017, hearing. Andrade provides us with no authority for his
apparent proposition that the Board had an obligation, sua sponte, to enforce his
discovery request. Given the length of time that Andrade was aware of the City
experts’ opinions and his failure to seek a remedy before or during the hearing
in this matter, we conclude that Andrade was not unfairly surprised by the
City’s failure to comply with his subpoena.
[28] In addition, in his subpoena Andrade sought material relied upon by Kearney
to form opinions relevant to iron support beams, rear stairway conditions,
ceiling heights, electric meters, balloon framing, and basement window height.
In its decision the Board found that the Home’s chimney chase, inadequate fire
separation among the floors of the Home, the lack of basement bedroom
windows, and inadequate smoke detectors were all conditions that rendered the
Home unsafe under the UBL. Those conditions had nothing to do with the
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materials sought by Andrade in his subpoena, and Andrade does not claim his
ability to cross-examine the experts on those matters was limited. As a result,
we find that the trial court’s decision to uphold the Board’s order, despite the
City’s lack of compliance with Andrade’s subpoena, was not clearly erroneous.
Foursquare Tabernacle Church, 630 N.E.2d at 1386.
CONCLUSION
[29] Based on the foregoing, we conclude that the Board did not exceed its statutory
authority when it ordered Andrade to restore the Home to a single-family
dwelling. We also conclude that the Board’s finding, as upheld by the trial
court, that the Home was constructed as a single-family dwelling was supported
by substantial evidence. Lastly, we conclude that the City’s failure to comply
with Andrade’s discovery request does not merit reversal.
[30] Affirmed.
[31] Vaidik, C. J. and Kirsch, J. concur
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