Board of Public Works and Safety of the City of Hammond v. Erik Alcantar, Sr. and Guadalupe Alcantar (mem. dec.)

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral Dec 23 2015, 10:21 am

estoppel, or the law of the case.

ATTORNEYS FOR APPELLANT
Paul A. Rake
John M. McCrum
Eichhorn & Eichhorn, LLP
Hammond, Indiana

IN THE
COURT OF APPEALS OF INDIANA

Board of Public Works and December 23, 2015
Safety of the City of Court of Appeals Case No.
Hammond, 45A03-1412-PL-433
Appellant-Defendant, Appeal from the Lake Circuit
Court
v. The Honorable George C. Paras,
Judge, and the Honorable Robert
Erik Alcantar, Sr. and G. Vann, Magistrate
Guadalupe Alcantar, Trial Court Cause No.
Appellees-Plaintiffs 45C01-1007-PL-132

Mathias, Judge.

[1] The Board of Public Works and Safety of the City of Hammond (“the Board”)

issued an order directing Erik and Guadalupe Alcantar (“the Alcantars”) to

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 convert their multiple-unit rental property into a single-family residence. The

Alcantars appealed the order to the Lake Circuit Court, and the court reversed

the Board’s order after concluding that the Alcantar’s use of the premises as a

multi-unit dwelling was lawful. The Board appeals and raises four issues, which

we restate as a single dispositive issue: whether the trial court erred when it

concluded that the Board’s order was arbitrary, capricious, unsupported by the

evidence, or contrary to law.

[2] We reverse and remand for proceedings consistent with this opinion.

Facts and Procedural History

[3] The Alcantars own a residential property located at 4409 Johnson Avenue in

Hammond, Indiana, which was built in 1914. The building is divided into three

separate apartments: one on the first floor, one on the second floor, and one in

the third floor attic. The Alcantars purchased the property in 2004 from

Thomas Suroviak (“Suroviak”).

[4] The Alcantar’s property was likely built as a single-family dwelling but later

converted to a three-unit rental property at some unknown, later time.

Although the property is currently located in an area zoned as single-family

residential, it is not known whether a zoning ordinance was in effect when the

property was built in 1914.

[5] Suroviak owned the property for approximately thirty years before he sold it to

the Alcantars in 2004. Suroviak purchased the property, which was being used

as a three-unit rental property, because he felt it would be a good investment.

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 Tr. p. 57. Suroviak has lived in Hammond for his lifetime and believes that the

residence was maintained as a three-unit rental property since the 1940s.

[6] In the mid-1990s, a Hammond city official told Suroviak that he could not

continue to rent the third floor unit because it only had one exit via an interior

staircase at the entrance to the building. Therefore, Suroviak added an exterior

staircase to the front of the property to provide a second exit for the third-floor

unit so he could continue to rent the unit. Also, Hammond issued various

permits for repairs to the property while Suroviak owned it.

[7] After the Alcantars purchased the property in 2004, they continued to utilize it

as a three-unit rental. The Lake County Assessor’s office also lists the property

as a residential three-family dwelling. Ex. Vol., Plaintiff’s Exs. 4, 5; see also Tr.

pp. 101-02. Also, the Alcantars have annually registered the property with

Hammond as a three-unit rental. Tr. pp. 114-15.

[8] In September 2009, Hammond building inspectors assessed the Alcantars’

property. In May 2010, the Alcantars received a notice of violation by the

Hammond Building Commissioner. The Alcantars’ property was deemed an

unsafe building for several reasons, including the fact that no request was made

to the Zoning Board to convert the building into three apartments. Appellant’s

App. pp. 50-51. The property was also deemed unsafe because fire partitions

between the three units were inadequate, and the ceiling, stairway, door

opening, and exit access heights were insufficient. In addition, the fire-

resistance rating of the walls of the property was not one hour, as required by

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 the building code. Finally, the notice of violation alleged the following building

code violation between the second and third floors: “specifically egress from a

room or space shall not pass through adjoining or intervening rooms or areas,

except where such adjoining rooms or areas are accessory to the area served;

are not a high hazard occupancy and provide a discernible path of egress travel

to an exit.” Appellant’s App. p. 51.

[9] A hearing was held on the alleged violations of the building code on May 27,

2010. On July 8, 2010, Hammond’s Board of Public Works and Safety

determined that the “subject property including the second and third floor

apartments as presently constructed does not constitute a pre-existing legal non-

conforming use and must be removed and converted back to a single family

home.” Appellant’s App. p. 42. The Board entered the following findings to

support its order:

1. There were no permits for construction of walls, electric or
plumbing, which would have been required by the certified copy
of the 1937 Municipal Code of Indiana, Chapter 111 Buildings. . .
2. As stated in the 1938 official Building Code for the City of
Hammond, . . . Ceilings separating dwelling unites require ¾”
plaster. Today’s Building Code requires two sheets of 5/8
drywall. Points being that fire protection requirements were in
place in 1938 as they are today.
3. The assessor only determines the number of units currently
present, not whether they are legal or code compliant.
4. The Lake County Assessor’s record does show the building
built in 1914 as a single family home with a ½ finished attic and
full basement.
5. The 1907 Building Code states in Part II, Section 3, no building
already erected, or hereafter to be built in said City, shall be

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 raised, altered, moved or built upon in any manner, that would be
in violation of the building code. The 1907 Building Code states
in Section 4, before any alteration of any building, the owner or
lessee, or agent of either, shall submit to the commissioner of
buildings, a full and complete copy of the plans of such proposed
work.
6. No Building Permits were ever applied for with the City of
Hammond or issued for converting the single family home into
three units, as required by Law, dating back to 1914. Counsel for
Alcantars acknowledges that there were no permits pulled.
7. By Code and Ordinances provided by the City of Hammond
Inspections Department these apartments have never been a legal
non-conforming use.

Appellant’s App. p. 41.

[10] The Alcantars appealed the Board’s order to the Lake Circuit Court. The trial

court held a hearing on the Alcantars’ complaint over three days in June 2014.

On November 5, 2014, the trial court issued findings of fact and conclusions of

law, reversing the Board’s order and concluding that the Alcantars’ use of the

property as a three-unit rental is lawful.

[11] The trial court issued the following relevant findings to support its judgment:

3. No permits or other records exist to indicate the original usage
of the property at 4409 Johnson when it was initially constructed
in 1914.
4. The records of permits maintained by the City of Hammond
only go back as far as 1923.
5. The Court finds clear and convincing evidence that the City of
Hammond has no records prior to 1923 regarding the usage or
zoning of any property.
6. The Court finds clear and convincing evidence that the City of

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 Hammond has no records prior to 1923 regarding the usage or
zoning of the Johnson Avenue property.
7. Neither the Defendant nor the City of Hammond possesses
records from the Lake County Assessor from 1914 showing that
4409 Johnson was built as a single family home.
8. No Zoning Ordinance existed in 1914 that would have
required the Johnson Avenue property to be built as a single
family home or that would have restricted the Property from
being built as a multi-unit dwelling.
9. The testimony of Thomas Suroviak, a prior owner of 4409
Johnson, indicated that he had personal knowledge that 4409
Johnson had been a three-unit building since at least 1946.
10. In fact, . . . the City possessed more than mere knowledge of
how 4409 Johnson Avenue was being utilized when Thomas
Suroviak built the external staircase for which he obtained a
permit; Hammond gave Suroviak an ultimatum, as he explained
during his testimony: either build a second entrance/exit or the
property could no longer be utilized as a three-unit rental.

***

Conclusions of Law

***

3. The Findings and Order of the Board contain significant
factual errors, misstatements and/or misrepresentation such that
the findings of fact are erroneous and the Board’s conclusions of
law are improper.
4. Based on the evidence, . . . the Board’s finding that 4409
Johnson was built as a single family property, is arbitrary
capricious, unsupported by the evidence and in excess of
statutory authority.
5. The property at 4409 Johnson Avenue constitutes a legal use.
6. The Johnson Avenue property was either built as a three-unit
building or constitutes a non-conforming legal use through the
issuance of permits by the City of Hammond.
7. Based on the clear and convincing evidence that no permit

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 records exist that show how 4409 Johnson was initially
constructed, coupled with the fact that no zoning ordinance
existed in the City of Hammond in 1914 that would have
required the Property to be a single family home, the Board
findings in paragraph 4 [] that the Lake County Assessor’s record
show that 4409 Johnson was built as a single family home is
arbitrary, capricious and unsupported by the evidence.

***

18. The City’s factual finding that the non-existence of permits to
convert, or otherwise, for the Johnson Avenue property dates
back to 1914 is arbitrary, capricious and unsupported by the
evidence. Because Hammond possesses no records of permits
predating 1923, it cannot properly claim that it has reviewed
records back to 1914.
19. The City of Hammond, and in particular, the Building
Commissioner, are subject to duties pursuant to Hammond
Zoning Ordinance (“HZO”) §§ 26.10 and 26.20 to ensure a
building is in compliance with the zoning requirements when a
permit is issued.
20. The Advisory Bd. of Zoning Appeals v. Foundation for
Comprehensive Mental Health, Inc., 497 N.E.2d 1089 (Ind. [Ct.]
App. 1986) applies herein, as does its holding that both structure
and use are to be considered when a building permit is issued and
that, when Hammond issued the permits with full knowledge of
use and structure of a property, it is estopped from denying a
property owner the current usage of said property.

Appellant’s App. pp. 16-23. Hammond now appeals.

Standard of Review

[12] The Alcantars have not filed an appellee’s brief responding to the Board’s

appeal of the Lake Circuit Court’s order reversing the Board’s order directing

the Alcantars to convert the property from a three-unit rental to a single-family
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 home. “When an appellee fails to submit a brief, we do not undertake the

burden of developing appellee’s arguments, and we apply a less stringent

standard of review.” Jenkins v. Jenkins, 17 N.E.3d 350, 351 (Ind. Ct. App. 2014).

We may reverse if the Board establishes prima facie error, which is error at first

sight, on first appearance, or on the face of it. See id. at 351-52. Still, we are

obligated to correctly apply the law to the facts in the record in order to

determine whether reversal is required. Mikel v. Johnston, 907 N.E.2d 547, 550

n. 3 (Ind. Ct. App. 2009).

[13] Indiana Code section 4-21.5-5-14 governs court review of an administrative

decision. That section provides that a court may provide relief only if the

agency action is: (1) arbitrary, capricious, an abuse of discretion, or otherwise

not in accordance with law; (2) contrary to constitutional right, power,

privilege, or immunity; (3) in excess of statutory jurisdiction, authority, or

limitations, or short of statutory right; (4) without observance of procedure

required by law; or (5) unsupported by substantial evidence. See also Equicor

Development, Inc. v. Westfield–Washington Township Plan Commission, 758 N.E.2d

34, 36-37 (Ind. 2001); Dep’t of Natural Res. v. Ind. Coal Council, Inc., 542 N.E.2d

1000, 1007 (Ind. 1989) (“[A]n administrative act is arbitrary and capricious only

where it is willful and unreasonable, without consideration and in disregard of

the facts and circumstances in the case, or without some basis which would lead

a reasonable and honest person to the same conclusion”).

[14] “The burden of demonstrating the invalidity of the agency action is on the party

. . . asserting invalidity.” I.C. § 4-21.5-5-14(a). In reviewing an administrative

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 decision, a court is not to try the facts de novo or substitute its own judgment

for that of the agency. Ind. Code § 4-21.5-5-11. This statutory standard mirrors

the standard long followed by our courts. See e.g. Town of Beverly Shores v.

Bagnall, 590 N.E.2d 1059, 1061 (Ind. 1992). Where the trial court’s factual

findings are based on a paper record, our review is de novo. See Equicor

Development, 758 N.E.2d at 37. However, here, the trial court held an

evidentiary hearing; we therefore defer to the trial court to the extent its factual

findings derive from that hearing. See Id.

Discussion and Decision

[15] Zoning ordinances are tools that governments rightfully use to restrict the use of

real property. See Benjamin Crossing Homeowners’ Ass’n, Inc. v. Heide, 961 N.E.2d

35, 40-41 (Ind. Ct. App. 2012). Indiana case law provides that the right of a

municipality to enact zoning restrictions is subject to vested property interests

acquired prior to enactment of zoning ordinances. See Jacobs v. Mishawaka Bd. of

Zoning Appeals 182 Ind.App. 500, 395 N.E.2d 834, 836 (1979). An ordinance

prohibiting any continuation of an existing lawful use within a zoned area is

unconstitutional as a taking of property without due process of law and as an

unreasonable exercise of police power. Town of Avon v. Harville, 718 N.E.2d

1194, 1197 (Ind. Ct. App. 1999), trans. denied. The phrase “non-conforming

use” is defined as a use of premises which lawfully exists prior to the enactment

of a zoning ordinance and which is allowed to be maintained or continued after

the effective date of the ordinance although it does not comply with the use

restrictions applicable in the area. Jacobs, 395 N.E.2d at 835-36. A person who

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 claims a legal non-conforming use has the burden of establishing his claim.

Harville, 718 N.E.2d at 1198. Once a legal non-conforming use has been

established, the burden of proving the termination of that use by abandonment

or discontinuance rests on those opposing the non-conforming use. Id.

[16] Initially, we address the trial court’s erroneous conclusion that the Board was

estopped from denying the Alcantars the current use of the property as a three-

unit rental. In general, a governmental entity cannot be estopped by the

unlawful acts of public officials. Cablevision of Chicago v. Colby Cable Corp., 417

N.E.2d 348, 354 (Ind. Ct. App. 1981). If estoppel were applied against a

governmental official, “a dishonest, incompetent or negligent public official

could wreck the interests of the public.” Id.

[17] However, the prohibition is not absolute. Id. at 356. This court has recognized

equitable estoppel can be applied against a governmental entity when “the

public interest” will be threatened. Advisory Board of Zoning Appeals of Hammond

v. Foundation for Comprehensive Mental Health, Inc., 497 N.E.2d 1089, 1092 (Ind.

Ct. App. 1986); see also Cablevision of Chicago, 417 N.E.2d at 357. In contrast, the

sole interest threatened here belongs to the Alcantars. Only the Alcantars profit

from using the property as a three-unit rental, especially given the poor

condition of that property. Because no “public interest” has been threatened, it

was error for the trial court to apply the doctrine of equitable estoppel against

Hammond.

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[18] Next, we observe that the Alcantars bore the burden of establishing the

invalidity of the Board’s order directing them to convert the property to a

single-family residence and of proving that their use of their property is a legal

non-conforming use. See I.C. § 4-21.5-5-14(a); Harville, 718 N.E.2d at 1198.

Therefore, to prove that their three-unit rental property is a legal non-

conforming use, the Alcantars had to establish that the property was a three-

unit rental property before the area was zoned single family residential. See

Jacobs, 395 N.E.2d at 835-36.

[19] The Alcantars presented evidence that the property was used as a three-unit

rental at least since the late 1940s. However, the Alcantars failed to prove that

the property was a three-unit rental prior to the Hammond zoning ordinance

that took effect in 1931.

[20] Although the Alcantars maintained that their property could have been built as

a three-unit rental, they failed to present any evidence to support that claim.

Hammond presented evidence that in the building commissioner’s opinion, the

internal hallways and property’s ceiling heights establish that the property was

built as a single-family residence in 1914. The Board also cited a record from

the Lake County Assessor’s office listing the property as a single-family home

with a half-finished attic and a full basement. Ex. Vol, Defendant’s Ex. D. The

building commissioner also testified that even if the property had been built as a

three-unit rental property, it was not built according to the building codes in

effect in 1914 for multi-unit family residences. Tr. p. 276.

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[21] This evidence supports the Board’s conclusion that the property has “never

been a legal non-conforming use.” Appellant’s App. p. 41. Because evidence in

the record supports this finding, and given the considerable deference courts are

required to give to agency rulings, the trial court erred when it concluded that

the Board’s conclusion was arbitrary, capricious, an abuse of discretion,

unsupported by the evidence, or otherwise not in accordance with law.

[22] For all of these reasons, we conclude that the Board established prima facie

error, and we reverse and remand with instructions to the trial court to reinstate

the Board’s order directing the Alcantars to convert the property back to a

single-family home.

[23] Reversed and remanded for proceedings consistent with this opinion.

Baker, J., and Bailey, J., concur.

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