Provision in subdivision ordinance requiring neighbor approval held to be valid

by Andrea Vaage

Counceller v City of Columbus Plan Commission
Indiana Court of Appeals, August 19, 2015

John Counceller owned a 3.26 acre lot in Indian Hills Estates in Columbus, Indiana. He had previously submitted three applications between 1999 and 2013 to subdivide his lot into two lots, which he either withdrew or let expire upon approval. In 2014, Counceller submitted a fourth application to subdivide his lot into a total of three lots. After the Plat Committee granted primary approval to the request, Counceller’s neighbors submitted an appeal.

Section 16.24.225 of Columbus’s subdivision control ordinance requires approval of 75% of neighboring property owners for the further subdivision of a lot. Almost all of Counceller’s neighbors objected to the application. Due to this objection, the Commission decided to deny the application. Counceller claimed the City should be estopped from applying the 75% approval rule. The trial court denied this petition.

One of the elements that must be met in an estopppel case is that the petitioner had a lack of knowledge and of the means of knowledge as to the facts in question. Counceller argued that he was not informed of the 75% requirement by the City in any of his previous applications; however, Indiana caselaw is clear that “property owners are charged with knowledge of ordinances that affect their property.”  As a general rule, equitable estoppel will not be applied against governmental authorities in those cases where the party claiming to have been ignorant of the facts had access to the correct information.  The City did not withhold the means for Counceller to become aware of the ordinance.

Counceller admitted that no City officials implied that this regulation would not be applied to his application. Counceller instead argued that because this regulation was not enforced in the other three applications it should not be enforced in the fourth. However, none of his other applications made it to the point where this requirement might arise. Furthermore, the fourth application is different from the previous three in that the application proposes the property be subdivided into three lots instead of two.

Counceller also asserted the City, by adopting the 75% rule, improperly abdicated its responsibility to exercise exclusive control of the subdivision of land to Counceller’s neighbors. While it is true that similar provisions have been held to be a violation of due process, the Court of Appeals found that the 75% rule in the Columbus ordinance did not give unrestricted power to the neighbors. Section 16.24.225 allows for a waiver to be obtained if the Commission “finds that the proposed change will not have a significant impact on the existing subdivision.” Counceller never requested this waiver in his application, nor did he ever choose to request the waiver when given additional opportunities.

The Court found Counceller had the means to learn of the 75% requirement, and the opportunity to request a waiver. The judgment of the trial court is affirmed.

Decision to approve expansion of nonconforming use supported by evidence; nearby property owner lacked standing to challenge

by Kaitlin Heinen

Daniel E. Stuckman, Sr. & Jr. v. Kosciusko County Board of Zoning Appeals
(Indiana Court of Appeals, September 25, 2012)

Ned and Bertha Stuckman purchased Lots A through K of the Lake Papakeechie Subdivision Number 2 in the 1950’s, and opened an automobile salvage yard on Lots E through K. In 1975, a Kosciusko County Zoning Ordinance took effect, and Ned and Bertha’s land was zoned residential; however, the automobile salvage yard constituted a lawful, nonconforming use so Ned and Bertha continued its operation. In the early 1980’s, Ned and Bertha cleared brush from Lots A through D and began stacking vehicles in that area. The Board investigated complaints by area residents, and the Indiana Court of Appeals eventually concluded that Ned, Bertha, and Gary (their son) had unlawfully expanded the automobile salvage yard to Lots A through D and ordered them to cease all salvage yard operations until they complied with certain restrictions.

In February 1988, Ned, Bertha, Gary, the Papakeechie Protective Association, and the Board of Zoning Appeals entered into a written Agreement, which provided that Papakeechie would join with Ned, Bertha, and Gary to file an application for an exception for modification of a preexisting, nonconforming use on Lots A through G. The Agreement placed restrictions, limitations, and covenants on the use of the property. For example, Ned, Bertha, and Gary agreed to construct a buffer mound near the edge of Koher Road. Ned, Bertha, and Gary also agreed to plant pine trees on the buffer mound to provide additional screening. All salvage yard activities were to be conducted to the east or north of the buffer mound, and vehicles were to be stacked so as not to be visible from Koher Road. In addition, Ned, Bertha, and Gary agreed to not install a sign indicating the existence of a salvage yard, except as necessary to meet state requirements. Following this Agreement, Gary filed the request for an exception for modification of a preexisting, nonconforming use, which was approved by the BZA. After Ned and Bertha died, Gary inherited Lots A through G, and his brother, Daniel Sr., inherited Lots H through K. Gary continued to operate the salvage yard on his lots, and Daniel Sr. operated Stuckman Sanitation on his lots, and with his son Daniel Jr., he also owned and operated Northern Indiana Recycling, LLC and Stuckman & Son Trucking on these lots as well. In 2008, Daniel Sr. filed a request for an exception for modification of a preexisting, nonconforming use, seeking approval for the construction of three new buildings, the installation of a scale, and the relocation of driving areas on his lots. The BZA approved these modifications.

In January 2010, Gary filed a request for an exception to expand the salvage yard as a nonconforming use. The BZA held a hearing in February 2010, where Gary submitted plans of his proposed changes, which included the removal of several mobile homes along the highway, the relocation of the buffer mound, the installation of a new location sign, and the construction of three new buildings to move the operations indoors to control the noise and dust. Following the hearing, the BZA unanimously approved the modification of the nonconforming use. In March 2010, the Daniel Stuckmans filed a petition for Writ of Certiorari, seeking judicial review of the BZA’s decision. They alleged that their businesses would be damaged by the approval of Gary’s plan. Gary died during the proceedings, so his estate was substituted as a party in March 2011. The trial court held a hearing in July 2011, where the Stuckmans argued that the BZA did not apply the appropriate section of the zoning ordinance. Zoning Ordinance Section 5.5 gives the BZA power to authorize changes of lawful nonconforming uses. However, the BZA  reviewed a checklist from Section 5.4 of the zoning ordinance, which applies to exceptions. In September 2011, the trial court concluded that Daniel Jr. lacked standing to contest the BZA’s decision because he was not an adjacent property owner and that the BZA’s decision required additional findings of fact, so it remanded the case to the BZA . In December 2011, the BZA found that the modification of the preexisting, nonconforming use complied with the Agreement and Section 5.5 of the Zoning Ordinance. The BZA also found no evidence that the proposed changes would adversely affect the neighborhood properties. Rather, the BZA noted that Gary’s changes would constitute a significant improvement to the neighborhood and be of benefit to adjoining neighbors, so his application for modification was approved. The trial court confirmed the BZA’s findings and conclusions, so Daniel Sr. and Jr. appealed.

The Indiana Court of Appeals affirmed the trial court’s ruling that Daniel Jr. did not have standing to contest the BZA’s decision. With regard to the challenge by Daniel Jr., the court stated that he does not own property adjacent to Gary’s, and he presented no evidence at the hearing to indicate an adverse effect on his property.

The court also affirmed that the BZA did not err in granting Gary’s request for an exception to modify and change the preexisting, nonconforming use of his property. The court determined that the error committed by the BZA in applying the wrong section of the zoning ordinance was remedied when the case was remanded by the trial court to the BZA for further findings of fact to support their decision. On remand, the BZA explained that although it had inadvertently used a checklist for an exception, Gary’s petition was clearly to modify a preexisting, nonconforming use and at no time were board members confused. The BZA further found that pursuant to Section 5.5 of the Ordinance, there was no evidence presented, which indicated that the proposed modifications would adversely affect the neighborhood properties. The Indiana Court of Appeals ruled that these findings were supported by substantial evidence.

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