Joseph D. Barnette, Jr., and Charlene Barnette, and City of Carmel Department of Community Services, Division of Building and Code Services v. US Architects, LLP, Albert D. Bowen

Jul 25 2014, 9:29 am

FOR PUBLICATION
ATTORNEYS FOR APPELLANTS: ATTORNEY FOR APPELLEE
US ARCHITECTS, LLP:
ZEFF A. WEISS
BRIAN J. PAUL EDWARD F. HARNEY, JR.
EILEEN P. MOORE Hume Smith Geddes Green & Simmons, LLP
Ice Miller LLP Indianapolis, Indiana
Indianapolis, Indiana
ATTORNEYS FOR APPELLEES
ALBERT D. BOWEN and JULIE A. BOWEN:

JULIA BLACKWELL GELINAS
MAGGIE L. SMITH
BRIAN M. FALCON
Frost Brown Todd LLC
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

JOSEPH D. BARNETTE, JR., and )
CHARLENE BARNETTE, )
)
Appellants-Intervenors/Cross-Appellees, )
)
and )
)
CITY OF CARMEL DEPARTMENT OF )
COMMUNITY SERVICES, DIVISION OF )
BUILDING AND CODE SERVICES and )
THE CARMEL BOARD OF ZONING APPEALS, )
)
Defendants, )
)
vs. ) No. 29A02-1304-PL-309
)
US ARCHITECTS, LLP, ALBERT D. BOWEN, )
and JULIE A. BOWEN, )
)
Appellees-Plaintiffs/Cross-Appellants. )
 APPEAL FROM THE HAMILTON SUPERIOR COURT
The Honorable Steven R. Nation, Judge
Cause No. 29D01-1108-PL-8656

July 25, 2014

OPINION - FOR PUBLICATION

CRONE, Judge

Case Summary

Carmel residents Albert D. Bowen and Julie A. Bowen hired US Architects to design

what the Carmel Zoning Ordinance (“the Ordinance”) categorizes as an accessory building.

The Bowens submitted the design plans to the Carmel Department of Community Services

(“the DCS”), which issued a building permit and a certificate of occupancy. The Bowens’

neighbors, Joseph D. Barnette, Jr., and Charlene Barnette, complained to the DCS about the

height of the Bowens’ building. The DCS notified the Bowens that their building violated

the height limits of the Ordinance and advised them to apply for a variance with the

Carmel/Clay Board of Zoning Appeals (“the BZA”), which they did. The BZA denied the

variance. The Bowens did not appeal the DCS’s determination that their building is too tall,

nor did they appeal the BZA’s denial of a variance. The DCS again notified the Bowens that

their building violated the Ordinance, that they had to bring it into compliance, and that the

DCS would be withdrawing the certificate of occupancy. The Bowens did not appeal that

determination.

2
 Instead, the Bowens and US Architects (collectively “the Plaintiffs”) filed a complaint

for declaratory relief against the DCS and the BZA (collectively “the City”), seeking an

interpretation of the Ordinance and a determination that their building complied with it. The

City filed a motion for judgment on the pleadings based on the Bowens’ failure to exhaust

their administrative remedies and counterclaimed for both an injunction ordering the Bowens

to bring their building into compliance with the Ordinance and a civil penalty for a zoning

violation. The Barnettes filed a motion to intervene, which the trial court granted, and joined

the City’s motion for judgment on the pleadings. The Plaintiffs filed a motion for summary

judgment.

After a hearing, the trial court issued an order stating that the Bowens’ failure to

exhaust their administrative remedies would have been fatal to their claims but for the fact

that the DCS had violated their due process rights and that DCS should be estopped from

revoking the certificate of occupancy. The trial court also ruled that US Architects did not

have standing to bring a declaratory judgment action because it had not suffered an actual

injury and could not request guidance for designing future buildings in Carmel. The trial

court denied the City’s motion for judgment on the pleadings; granted the Plaintiffs’

summary judgment motion as to the Bowens and denied it as to US Architects; and ordered

the DCS to reissue the certificate of occupancy or provide just compensation to the Bowens.

The trial court issued a second order denying the City’s counterclaims and entering final

judgment in favor of the Bowens. The Barnettes filed a notice of appeal, but the City did not.

US Architects cross-appealed the trial court’s standing determination.

3
 On appeal, the Plaintiffs contend that the appeal is moot because the Barnettes cannot

enforce the Ordinance on the City’s behalf. We conclude that the appeal is not moot because

a party of record in the trial court is a party on appeal, and we may grant appropriate relief to

any party. Also, as intervenors and parties to the judgment, the Barnettes may appeal the trial

court’s judgment to the extent that it is adverse to the interests that made intervention

possible in the first place.

The Barnettes contend that the declaratory judgment action should be dismissed for

lack of subject matter jurisdiction because the Bowens failed to exhaust their administrative

remedies. We agree. The DCS is not estopped from enforcing the Ordinance because the

relevant facts were equally known by or accessible to the Bowens and the City. And because

the Bowens failed to exhaust their administrative remedies, which would have afforded them

due process, they cannot complain about a due process violation. Therefore, we reverse and

remand with instructions to dismiss the Plaintiffs’ declaratory judgment complaint as to the

Bowens and for further proceedings consistent with this opinion, such as reconsideration of

the City’s counterclaims.

Finally, US Architects contends that the trial court erred in determining that it lacks

standing to bring a declaratory judgment action. Because any injury suffered by US

Architects would be derivative of that suffered by the Bowens, and because it may not seek

an advisory opinion for guidance in designing future buildings, we affirm the trial court on

this issue and remand with instructions to dismiss the Plaintiffs’ declaratory judgment

complaint as to US Architects.

4
 In sum, we affirm in part, reverse in part, and remand for further proceedings

consistent with this opinion.

Facts and Procedural History

The relevant facts are undisputed. In 2010, the Bowens, who live next door to the

Barnettes in Carmel, hired US Architects to design what the Ordinance categorizes as an

accessory building.1 The Bowens submitted the design plans to the DCS, which issued a

building permit in February 2010. In October 2010, after the Bowens’ building was

constructed, the DCS issued a certificate of occupancy that contains the following language:

“THE BUILDING OFFICIAL IS PERMITTED TO SUSPEND OR REVOKE THIS

CERTIFICATE OF OCCUPANY BASED ON ANY OF THE FOLLOWING: 1. WHEN

THE CERTIFICATE HAS BEEN ISSUED IN ERROR; 2. WHEN THE INCORRECT

INFORMATION IS SUPPLIED; 3. WHEN THE BUILDING IS IN VIOLATION OF THE

CODE.” Appellants’ App. at 89.

The Barnettes complained to the DCS about the height of the Bowens’ building,

which has a gable roof and no walls adjoining the street. Section 3.07 of the Ordinance

defines “building height” in pertinent part as “[t]he vertical distance from the lot ground level

… to the mean height between eaves and ridges” for gable roofs. The Ordinance defines

“lot ground level” for buildings having no walls adjoining the street as “the average level of

1
Section 3.07 of the Ordinance defines accessory building in pertinent part as “[a] Building
subordinate to another Structure or Use located on the same Lot which is not used for permanent human
occupancy.”

5
the ground adjacent to the exterior walls of the Building.” Id. Section 25.01.01B of the

Ordinance limits the height of accessory buildings to eighteen feet.

In March 2011, the DCS sent a letter to the Bowens that reads in pertinent part as

follows:

This letter is being provided to inform you that our department received a
complaint regarding the height of the accessory structure that was recently
completed on your property. Upon review, it has come to our attention this
complaint is valid. We believe the original building permit was issued in error.
According to the building plans that were submitted the structure is eight feet
taller than is permitted. In order to comply with the Carmel/Clay Zoning
Ordinance §25.01.01B, it will be necessary for you to file an application for a
Development Standards Variance. Enclosed is the application along with a
flow chart explaining the process.

Id. at 99.

Indiana Code Section 36-7-4-918.1 provides that appeals from “any order,

requirement, decision or determination made by an administrative official, hearing officer, or

staff member under the zoning ordinance” shall be heard and determined by a board of

zoning appeals. An appeal “must be filed within such time and in such form as may be

prescribed by the board of zoning appeals by rule.” Ind. Code § 36-7-4-919(a). Section

30.01 of the Ordinance provides that appeals shall be filed within thirty days of the action

being appealed. The Bowens did not appeal the DCS’s determination that their building was

too tall.

Instead, on the advice of and with the assistance of the DCS, the Bowens applied for a

variance with the BZA. On the Bowens’ behalf, the DCS submitted proposed findings

recommending approval of the variance. But after a hearing in April 2011, the BZA denied

6
the variance, finding that the building “is approximately 36.5 feet in height”;2 “is visible from

adjoining properties and thereby adversely affects the general welfare of the community as it

is unsightly and not harmonious with a[cc]essory buildings related to adjoining residential

homes”; and has a “material adverse impact on the value of adjoining properties[.]”

Appellants’ App. at 143. At that time, Indiana Code Section 36-7-4-1003 allowed persons

“aggrieved” by a decision of a board of zoning appeals to appeal to the county circuit or

superior court within thirty days of the board’s decision. The Bowens did not appeal the

BZA’s decision.

On June 3, 2011, the DCS sent a letter to the Bowens that reads in pertinent part as

follows:

Your accessory building is currently in violation of the Carmel Zoning
Ordinance height requirements and must be brought into compliance right
away.

Please respond by Monday, June 13, 2011 to this letter so that we may know
your plans to remedy the violation. The Department will be withdrawing the
previously granted certificate of occupancy for this structure, and allow a total
of 60 days from receipt of your response to complete the building remodel.

Appellants’ App. at 144. The Bowens did not appeal this determination.

Instead, in September 2011, the Plaintiffs filed a complaint for declaratory relief

against the City, seeking an interpretation of Section 25.01.01B of the Ordinance and a

determination that the Bowens’ building complied with it, as well as a stay of any zoning

2
We agree with the City that this measurement represents the absolute height of the building, not the
building height as defined in the Ordinance. See Appellants’ App. at 91 (elevation drawing showing roof peak
at thirty-seven feet “above grade”); id. at 102 (same drawing with handwritten notation of height as 36.5 feet).

7
enforcement proceedings pending the resolution of the declaratory judgment action.3 In its

answer to the Plaintiffs’ complaint, the City asserted that the Bowens had failed to exhaust

their administrative remedies and that one or more of the Plaintiffs lacked standing to file the

complaint. The City also counterclaimed for an injunction and a civil penalty for a zoning

violation. Specifically, pursuant to Indiana Code Section 36-1-6-4, the City requested an

injunction “ordering the Bowens to take appropriate action to bring the accessory building

into compliance with the Zoning Ordinance[.]” Id. at 31.4 The Plaintiffs answered and

asserted estoppel as an affirmative defense.

Thereafter, the City filed a motion for judgment on the pleadings based on the

Bowens’ failure to exhaust their administrative remedies. The Barnettes filed a motion to

intervene as of right pursuant to Indiana Trial Rule 24, alleging that the Bowens’ building

“has severely compromised [their] view and has diminished the value of [their property].”

Id. at 49-50.5 The Plaintiffs did not object, and the trial court granted the Barnettes’ motion.

3
See Ind. Code § 34-14-1-2 (“Any person interested under a deed, will, written contract, or other
writings constituting a contract, or whose rights, status, or other legal relations are affected by a statute,
municipal ordinance, contract, or franchise, may have determined any question of construction or validity
arising under the instrument, statute, ordinance, contract, or franchise and obtain a declaration of rights, status,
or other legal relations thereunder.”).

4
Indiana Code Section 36-1-6-4 provides that a municipal corporation may bring a civil action if a
person “violates an ordinance regulating or prohibiting a condition or use of property” and that a court may
“take any appropriate action,” including “[i]ssuing an injunction” or “[o]rdering a defendant to take appropriate
action to bring a property into compliance with an ordinance within a specified time.”

5
See Ind. Trial Rule 24(A) (“Upon timely motion anyone shall be permitted to intervene in an action:
(1) when a statute confers an unconditional right to intervene; or (2) when the applicant claims an interest
relating to a property, fund or transaction which is the subject of the action and he is so situated that the
disposition of the action may as a practical matter impair or impede his ability to protect his interest in the
property, fund or transaction, unless the applicant’s interest is adequately represented by existing parties.”).

8
 The Plaintiffs filed a response to the motion for judgment on the pleadings and a

memorandum in support of a motion for summary judgment, which stated,

At issue in the Declaratory Judgment Action is the proper interpretation
of the phrase “Lot Ground Level.” The interpretation of “Lot Ground Level”
factors into the calculation of the building’s height for purposes of determining
compliance with the subject ordinance. Here, DCS issued the Bowens both a
building permit and a Certificate of Occupancy, certifying that the building
met local ordinances and building code. Then, five months after issuing the
Certificate of Occupancy, DCS completely reversed itself and re-interpreted
“Lot Ground Level” to be measured from a point 6 feet from an adjacent wall.
(Exhibit B-2).[6] DCS never articulated any basis for selecting the 6 foot
measurement, and could not identify any regulation in the applicable building
code or ordinances for the 6 foot measurement. Accordingly, this declaratory
judgment action is appropriate to provide clarity on the subject ordinance and
for the Court to determine whether the accessory building complies with the
proper interpretation of this ordinance.

Id. at 61. The Plaintiffs asserted that for purposes of calculating the height of an accessory

building, the lot ground level should be “the average of the elevation of the land surrounding

the primary residence.” Id. at 65.

The Barnettes filed a response to the Plaintiffs’ summary judgment motion, which the

City joined, and also joined the City’s motion for judgment on the pleadings. In their

summary judgment reply brief, the Plaintiffs asserted for the first time that the DCS

“effectively revoked” the Bowens’ certificate of occupancy “without notice or opportunity to

be heard” and thereby violated their due process rights. Id. at 164. The Plaintiffs also

asserted for the first time that the Ordinance is “unconstitutionally vague and did not provide

fair warning to either US Architects or the Bowens of its requirement that the lot ground

6
This exhibit is a letter dated June 27, 2011, from the DCS to the Bowens and an “attached graphic”
illustrating the DCS’s method of calculating a building’s height. Appellants’ App. at 97-98.

9
level is an average of the elevation of an imaginary line six feet from the adjacent wall of an

accessory structure.” Id. at 159-60. They further asserted that US Architects has standing to

bring a declaratory judgment action “because the Bowens have made a claim against US

Architects for remodeling costs to comply with [the] DCS’s interpretation of the ordinance”7

and because US Architects, “as an architectural firm, also needs to ascertain whether [the]

ordinance is constitutional and/or if its interpretation of the ordinance is correct for future

buildings it may design to be built within the City of Carmel.” Id. at 159.

After a hearing, the trial court issued an order in which it concluded that the Bowens’

failure to exhaust their administrative remedies would have been fatal to their claims but for

the following considerations: (1) the DCS’s revocation of their certificate of occupancy

“without notice, hearing or just compensation” violated their due process rights; and (2) the

DCS should be estopped from revoking the certificate because the Bowens “did in fact

reasonably rely upon the issuance of [the building permit and certificate of occupancy] to

their detriment by commencing and completing construction and by occupying the structure,

only to be told nearly six months later that the accessory structure violated the applicable

ordinance.” Id. at 12, 14. The court further concluded that US Architects lacked standing to

bring the declaratory judgment action because it had not suffered the denial of a property

interest or an actual injury; the court deemed the Bowens’ claim against US Architects as too

speculative and stated that “[a] request for future guidance is not an actual, present,

7
According to the Plaintiffs, however, the Bowens did not actually file a lawsuit against US
Architects until after the trial court issued its order. Appellees’ Br. at 12 n.4.

10
justiciable controversy.” Id. at 17. Consequently, the court granted the Plaintiffs’ summary

judgment motion as to the Bowens and denied it as to US Architects. The court also denied

the City and the Barnettes’ motion for judgment on the pleadings. Based on its finding of a

due process violation, the court ordered the DCS to “immediately reissue the Certificate of

Occupancy and/or provide just compensation as required by law.” Id. at 13. In a subsequent

order, the court denied the City’s counterclaims and entered final judgment in favor of the

Bowens.

The Barnettes now appeal, but the City does not. US Architects cross-appeals the trial

court’s determination regarding its lack of standing.

Discussion and Decision

Section 1 – Is This Appeal Moot?

As a threshold matter, we first address the Plaintiffs’ contention that this appeal is

moot because the City did not file a notice of appeal and the Barnettes, as private citizens,

cannot enforce the Ordinance on its behalf. Pursuant to Indiana Appellate Rule 17(A), a

party of record in the trial court shall be a party on appeal. “‘The rule operates of its own

force to make all parties in the trial court parties on appeal, whether such parties participate

actively or not.’” Hoosier Outdoor Adver. Corp. v. RBL Mgmt., Inc., 844 N.E.2d 157, 162

(Ind. Ct. App. 2006) (quoting State v. Nixon, 270 Ind. 192, 194, 384 N.E.2d 152, 153

(1979)), trans. denied. Pursuant to Indiana Appellate Rule 66(C), “with respect to some or

all of the parties or issues, in whole or in part[,]” we may affirm or reverse the trial court’s

decision or “grant any other appropriate relief.” And we have “held that where a party is

11
permitted to intervene in a lawsuit under Indiana Trial Rule 24, that party may appeal a

decision adverse to its interests even if the original party or parties decide to forego the

pursuit of an appeal; the case is not moot.” Hoosier Outdoor, 844 N.E.2d at 161 (citing City

of New Haven v. Chem. Waste Mgmt. of Ind., LLC, 685 N.E.2d 97, 102 (Ind. Ct. App. 1997),

trans. dismissed (1998)).

Based on the foregoing, we agree with the Barnettes that “[t]he fact that the City is the

party that brought the enforcement action, and not the Barnettes, is irrelevant[,]” and that, as

parties to the trial court’s judgment and this appeal, they “are entitled to pursue and receive

an effective appellate remedy, independent of the City’s ability to do so.” Appellants’ Reply

Br. at 7, 6; see City of New Haven, 685 N.E.2d at 102 (denying landfill operator’s motion to

dismiss intervenor city’s appeal from partial judgment in favor of landfill operator in

county’s zoning enforcement action, where county settled with landfill operator after filing

appeal: “The City’s status as a party to the lawsuit and the judgment rendered therein does

not end merely because the original parties decided to settle their claims and to forego the

pursuit of an appeal. Dismissal of the suit as between the original parties does not render

moot the City’s claims. There is no indication that the City has failed to meet the procedural

requirements to bring an appeal to this court. As a party to the judgment …, the City has the

right to appeal that judgment to the extent that it is adverse to those interests which made

12
intervention possible in the first place. This court has subject-matter jurisdiction over the

City’s appeal ….”).8 Therefore, this appeal is not moot, and we will address the merits.

Section 2 – Should the Bowens’ Complaint Have Been Dismissed for
Failure to Exhaust Administrative Remedies?

This mention of subject matter jurisdiction brings us to our next point. The Barnettes

contend that the trial court should have dismissed the Plaintiffs’ declaratory judgment

complaint as to the Bowens for lack of subject matter jurisdiction because the Bowens failed

to exhaust their administrative remedies. It is true that such a failure has been found to

implicate a court’s subject matter jurisdiction. See Town Council of New Harmony v. Parker,

726 N.E.2d 1217, 1224 (Ind. 2000) (“Failure to exhaust administrative remedies deprives the

trial court of subject matter jurisdiction.”), amended on reh’g, 737 N.E.2d 719.9 For that

8
We are unpersuaded by the Plaintiffs’ reliance on Annexation Ordinance F-2008-15 v. City of
Evansville, 955 N.E.2d 769 (Ind. Ct. App. 2011), trans. denied (2012), an annexation case that is procedurally
and factually distinguishable.

9
In K.S. v. State, 849 N.E.2d 538 (Ind. 2006), our supreme court wrote,

Subject matter jurisdiction is the power to hear and determine cases of the general class to
which any particular proceeding belongs. Personal jurisdiction requires that appropriate
process be effected over the parties.

Where these two exist, a court’s decision may be set aside for legal error only through
direct appeal and not through collateral attack. Other phrases recently common to Indiana
practice, like “jurisdiction over a particular case,” confuse actual jurisdiction with legal error,
and we will be better off ceasing such characterizations.

Id. at 540. There is no question that the trial court has the power to hear and determine declaratory judgment
cases such as the one filed by the Bowens. In light of K.S., it seems to us that a party’s failure to exhaust
administrative remedies should be considered a type of legal error (i.e., procedural default) that has nothing to
do with a court’s subject matter jurisdiction. But a recent opinion from our supreme court suggests otherwise.
See Walczak v. Labor Works-Ft. Wayne LLC, 983 N.E.2d 1146, 1154 (Ind. 2013) (addressing argument that
trial court lacked subject matter jurisdiction because plaintiff “failed to exhaust available administrative
remedies before filing her claim” under Wage Payment Act without determining whether such failure
implicates subject matter jurisdiction). Until our supreme court brings further clarity to this area, we will
follow their most recent precedent on the subject.

13
reason, instead of filing a motion for judgment on the pleadings, the City should have filed a

motion to dismiss for lack of subject matter jurisdiction pursuant to Indiana Trial Rule

12(B)(1). See Peavler v. Mitchell & Scott Mach. Co., 638 N.E.2d 879, 880 (Ind. Ct. App.

1994) (stating that defendant should have filed motion to dismiss instead of motion for

judgment on the pleadings to attack trial court’s subject matter jurisdiction). The standard of

review for such motions is a function of what occurred in the trial court. GKN Co. v.

Magness, 744 N.E.2d 397, 401 (Ind. 2001). Where, as here, the relevant facts are not in

dispute, the question of subject matter jurisdiction is purely one of law, and we review the

matter de novo. Id.

We agree with the Barnettes that the trial court should have dismissed the Plaintiffs’

declaratory judgment complaint as to the Bowens because they failed to exhaust their

administrative remedies. According to our supreme court, “It is well-established that, if an

administrative remedy is available, it must be pursued before a claimant is allowed access to

the courts.” Parker, 726 N.E.2d at 1224. Where “an administrative remedy is readily

available, filing a declaratory judgment action is not a suitable alternative.” Carter v. Nugent

Sand Co., 925 N.E.2d 356, 360 (Ind. 2010).

The exhaustion doctrine is supported by “strong policy reasons and considerations of

judicial economy[.]” Austin Lakes Joint Venture v. Avon Utils., Inc., 648 N.E.2d 641, 644

(Ind. 1995).

The exhaustion doctrine is intended to defer judicial review until controversies
have been channeled through the complete administrative process. The
exhaustion requirement serves to avoid collateral, dilatory action … and to
ensure the efficient, uninterrupted progression of administrative proceedings

14
 and the effective application of judicial review. It provides an agency with an
opportunity “to correct its own errors, to afford the parties and the courts the
benefit of [the agency’s] experience and expertise, and to compile a [factual]
record which is adequate for judicial review.”

Johnson v. Celebration Fireworks, Inc., 829 N.E.2d 979, 982 (Ind. 2005) (quoting Austin

Lakes, 648 N.E.2d at 644 (quoting Weinberger v. Salfi, 422 U.S. 749, 765 (1975)).

Established administrative procedures may not be bypassed simply because a party

raises a constitutional issue; otherwise they could be circumvented “by the mere allegation of

a constitutional deprivation.” Ind. State Dep’t of Welfare v. Stagner, 410 N.E.2d 1348, 1353

(Ind. Ct. App. 1980).10 Even if the basis of the party’s complaint “is the unconstitutionality of

[a] statute, which may be beyond the agency’s power to resolve, exhaustion may still be

required because ‘administrative action may resolve the case on other grounds without

confronting broader legal issues.’” State Bd. of Tax Comm’rs v. Montgomery, 730 N.E.2d

680, 684 (Ind. 2000) (quoting State v. Sproles, 672 N.E.2d 1353, 1358 (Ind. 1996)). The

same can be said for a challenge to the constitutionality of a zoning ordinance.

The exhaustion requirement is not without exceptions, however. Smith v. State

Lottery Comm’n of Ind., 701 N.E.2d 926, 931 (Ind. Ct. App. 1998), clarified on reh’g, trans.

denied (1999). For example, a party is excepted from the requirement “when some equitable

consideration precludes application of the rule.” Id. Here, the trial court essentially

determined that the exhaustion requirement was precluded by estoppel.

The party who claims that the doctrine of equitable estoppel applies must show
(1) a lack of knowledge as to the facts in question and of the means of
acquiring that knowledge; (2) reliance upon the conduct of the party estopped;

10
The same holds true for claims of estoppel. Stagner, 410 N.E.2d at 1354 n.5.

15
 and (3) a prejudicial change in position based upon the conduct of the party
estopped.

LaGrange Cnty. Reg’l Util. Dist. v. Bubb, 914 N.E.2d 807, 811 (Ind. Ct. App. 2009).

“Estoppel is not generally applicable against government entities for the actions of

public officials.” Biddle v. BAA Indianapolis, LLC, 860 N.E.2d 570, 581 (Ind. 2007). “The

reason behind the rule is two-fold. If the government could be estopped, then dishonest,

incompetent or negligent public officials could damage the interests of the public. At the

same time, if the government were bound by its employees’ unauthorized representations,

then government, itself, could be precluded from functioning.” Samplawski v. City of

Portage, 512 N.E.2d 456, 459 (Ind. Ct. App. 1987).

The Barnettes point out that “[e]stoppel cannot be applied if the facts are equally

known by or accessible to both parties,” City of Crown Point v. Lake Cnty., 510 N.E.2d 684,

687 (Ind. 1987), and that “[p]roperty owners are charged with knowledge of ordinances that

affect their property.” Story Bed & Breakfast, LLP v. Brown Cnty. Area Plan Comm’n, 819

N.E.2d 55, 64 (Ind. 2004). We agree with the Barnettes that the Bowens thus were charged

with knowing what the maximum height for accessory buildings is pursuant to the Ordinance

and that height is “measured based on the average level of the ground adjacent to the exterior

walls of the accessory building, not the primary residence.” Appellants’ Br. at 38. Plaintiffs’

argument to the contrary is unsupported by the plain language of Section 3.07 of the

Ordinance, which refers to the exterior walls of “the Building,” not “the primary residence.”

The reasonableness of the City’s “6 foot measurement” practice and the constitutionality of

the Ordinance could have and should have been litigated at the administrative level. Notably,

16
the Bowens do not contend that their building would have complied with the Ordinance if the

lot ground level had been measured closer to its exterior walls. In sum, because the Barnettes

failed to establish an essential element of estoppel, we conclude that the trial court erred in

determining that the City is estopped from enforcing the Ordinance.11

And as for the Bowens’ due process claim, we simply observe that exhausting their

administrative remedies would have afforded them all the process that they were due. “At a

minimum, due process requires notice and an opportunity to be heard, with the hearing held

at a meaningful time and in a meaningful manner.” Myers v. Coats, 966 N.E.2d 652, 658

(Ind. Ct. App. 2012). Pursuant to statute, the Bowens had two opportunities to appeal from

and be heard on the DCS’s determination that their accessory building is too tall12 and an

opportunity to appeal from and be heard on the BZA’s denial of a variance, and they failed to

take advantage of any of those opportunities. As such, they cannot complain that they were

denied due process.

Based on the foregoing, we conclude that the Plaintiffs’ declaratory judgment

complaint should be dismissed as to the Bowens for lack of subject matter jurisdiction due to

11
Because the relevant facts were equally known by or accessible to both the City and the Bowens,
and because the Bowens did not exhaust their administrative remedies, we are unpersuaded by the estoppel
cases cited in the Plaintiffs’ brief, which are procedurally and factually distinguishable.

12
As stated above, the Bowens sought a variance from the BZA on the advice of the DCS instead of
appealing the DCS’s initial determination that their building is too tall. Our supreme court has said,

When the legislature enacts procedures and timetables which act as a precedent to the exercise
of some right or remedy, those procedures cannot be circumvented by the unauthorized acts
and statements of officers, agents or staff of the various departments of our state government.
All persons are charged with the knowledge of the rights and remedies prescribed by statute.

Middleton Motors, Inc. v. Ind. Dep’t of State Revenue, 269 Ind. 282, 285, 380 N.E.2d 79, 81 (1978).

17
their failure to exhaust their administrative remedies. Therefore, we reverse and remand with

instructions to dismiss the Plaintiffs’ declaratory judgment complaint as to the Bowens and

for further proceedings consistent with this opinion, such as reconsideration of the City’s

counterclaims for an injunction and a civil penalty.13

Section 3 – Does US Architects Have Standing to Seek a Declaratory Judgment?

Simply put, no.

The doctrine of standing focuses on whether the complaining party is the
proper person to invoke the Court’s power. The standing requirement restrains
the judiciary to resolving only those controversies in which the complaining
party has a demonstrable injury. In order to establish standing, a plaintiff must
show that he or she has sustained, or was in immediate danger of sustaining,
some direct injury as a result of the conduct at issue.

Regan v. Uebelhor, 690 N.E.2d 1222, 1225-26 (Ind. Ct. App. 1998) (citations omitted), trans.

denied. Here, any injury that US Architects would suffer as a result of the City’s

interpretation of the Ordinance would be entirely derivative of that suffered by the Bowens,

who should have litigated the matter at the administrative level. And, as the trial court

correctly observed, US Architects may not seek an advisory opinion for guidance in

designing future buildings in Carmel. Liberty Landowners Ass’n v. Porter Cnty. Comm’rs,

913 N.E.2d 1245, 1252 (Ind. Ct. App. 2009), trans. denied (2010). Therefore, we affirm the

trial court’s denial of the Plaintiffs’ summary judgment motion as to US Architects and

13
The Barnettes contend that they may enforce the Ordinance if the City “on remand abdicates its
duty” to do so. Appellants’ Reply Br. at 15. Because this possibility is speculative, we decline to address the
Barnettes’ contention.

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remand with instructions to dismiss the Plaintiffs’ declaratory judgment complaint as to US

Architects.

Affirmed in part, reversed in part, and remanded.

BAKER, J., and NAJAM, J., concur.

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