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.