City of Charlestown, Indiana v. Charlestown Pleasant Ridge Neighborhood Association Corporation, Joshua Craven, Tina Barnes, David and Ellen Keith, and Bolder Properties, LLC

FILED
Sep 10 2018, 8:51 am

CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court

ATTORNEYS FOR APPELLANTS ATTORNEYS FOR APPELLEES
Bart A. Karwath Jeffrey T. Rowes
Mark J. Crandley Institute for Justice
Barnes & Thornburg LLP Austin, Texas
Indianapolis, Indiana
Jeffrey H. Redfern
Michael Allen Gillenwater Institute for Justice
Gillenwater Law Offices Arlington, Virginia
Jeffersonville, Indiana
Keith E. Diggs
Institute for Justice
Tempe, Arizona

Stephen W. Voelker
Voelker Law Office
Jeffersonville, Indiana

Anthony B. Sanders
Institute for Justice
Minneapolis, Minnesota

ATTORNEYS FOR AMICI CURIAE
NOW!, INC.
J. David Agnew
Lorch Naville Ward LLC
New Albany, Indiana

THE GOLDWATER INSTITUTE
F. Bradford Johnson
Indianapolis, Indiana

Matthew R. Miller
The Scharf-Norton Center for
Constitutional Litigation at the
Goldwater Institute
Phoenix, Arizona

Court of Appeals of Indiana | Opinion 10A01-1712-CT-2896 | September 10, 2018 Page 1 of 18
 F & J APARTMENTS, LLC,
BROWN RENTAL PROPERTIES,
LLC, COOLEY PROPERTY
MANAGEMENT, LLC, GREGORY
DEVELOPMENT, LLC, JOSH
GREGORY, GREG YEAGER,
KENNETH T. WESTMORELAND,
JR., MICHELLE R.
WESTMORELAND, MATTHEW
SHULTZ, LISA SHULTZ, DALE
MAY, MARIA SANCHEZ, AND
MANUEL HERNANDEZ
J. David Agnew
Lorch Naville Ward LLC
New Albany, Indiana

George A. Budd, V
Schad & Schad, P.C.
New Albany, Indiana

IN THE
COURT OF APPEALS OF INDIANA

City of Charlestown, Indiana, September 10, 2018
and Charlestown Board of Public Court of Appeals Case No.
Works and Safety, 10A01-1712-CT-2896
Appellants-Defendants/Cross- Appeal from the Clark Circuit Court
Appellees, The Honorable Jason M. Mount,
Special Judge
v.
Trial Court Cause No.
10C02-1701-CT-10
Charlestown Pleasant Ridge
Neighborhood Association
Corporation, Joshua Craven,

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 Tina Barnes, David and Ellen
Keith, and Bolder Properties,
LLC,
Appellees-Plaintiffs/Cross-Appellants

Crone, Judge.

Case Summary
[1] Charlestown Pleasant Ridge Neighborhood Association Corporation, Joshua

Craven, Tina Barnes, David Keith, Ellen Keith, and Bolder Properties, LLC

(collectively “the Homeowners”), filed a motion for preliminary injunction

against the City of Charlestown, Indiana, and the Charlestown Board of Public

Works and Safety (collectively “the City”) with respect to the City’s practice of

enforcing its Property Maintenance Code (“PMC”). In support of their motion

for a preliminary injunction, the Homeowners alleged that the City enforced the

PMC in a manner that violated (1) Indiana Code Chapter 36-7-9, also known as

the Indiana Unsafe Building Law (“UBL”), (2) the PMC itself, (3) the United

States Constitution’s Equal Protection Clause, and (4) the Indiana

Constitution’s Privileges and Immunities Clause. As to the first claim, the trial

court found that the City is not required to follow either the UBL or the PMC

exclusively. Because the trial court found that the City is not required to follow

the UBL, the trial court concluded that the Homeowners are unlikely to

succeed on their claim that the City’s manner of enforcing the PMC violates the

UBL. However, the trial court also concluded that the Homeowners are likely

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 to succeed on their remaining claims. Accordingly, the trial court issued

findings of fact and conclusions thereon (“the Appealed Order”) and a separate

order granting the preliminary injunction.1

[2] The City appeals, arguing that the trial court clearly erred in concluding that the

Homeowners are likely to succeed on their claims that the City’s manner of

enforcing the PMC violates the PMC, the Equal Protection Clause, and the

Privileges and Immunities Clause. The Homeowners cross-appeal, arguing that

the trial court clearly erred in concluding that they are unlikely to succeed on

their claim that the City’s manner of enforcing the PMC violates the UBL.

[3] The issue raised in the Homeowners’ cross-appeal is dispositive at this stage of

the proceedings. As to that issue, we conclude that the trial court clearly erred

in finding that the City is not required to follow the UBL. Specifically, we

conclude that because the City has adopted the UBL, the City is required to act

in accordance with its provisions. That does not mean that the PMC is without

legal force, but rather that the City is precluded from enforcing the PMC in a

manner that is inconsistent with the UBL. Because the trial court found that

the City was not required to follow the UBL, the trial court did not address how

the UBL impacts the City’s enforcement of the PMC. Some of the provisions

in the UBL are permissive, others are mandatory. Some provisions of the PMC

1
Because the trial court’s findings of fact and conclusions thereon set forth the terms of the preliminary
injunction, thereby duplicating the trial court’s separate order granting the preliminary injunction, for
simplicity’s sake, we generally refer to the trial court’s findings of fact and conclusions thereon as the
Appealed Order.

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 may conflict with the UBL, some PMC provisions will be compatible with the

UBL, and many PMC provisions will address subject matter not covered by the

UBL. Therefore, we remand for the trial court to consider how the UBL and

the PMC work together in light of our conclusion that the PMC must work

within the confines and strictures of the UBL, and to reconsider the

Homeowners’ claim that the City’s enforcement of the PMC violates the UBL.

Further, because the trial court decided the Homeowners’ remaining three

claims based on the erroneous premise that the City was not required to follow

the UBL, those claims, if the Homeowners choose to pursue them, will need to

be reexamined. Accordingly, we reverse the Appealed Order and the order

granting the preliminary injunction and remand for further proceedings

consistent with this opinion.

Facts and Procedural History
[4] The undisputed facts show that Pleasant Ridge is a neighborhood within the

City of Charlestown.2 Appealed Order at 3 (finding #8). The City believes that

Pleasant Ridge needs redevelopment. Id. at 4 (#13). The Association is a

nonprofit corporation with approximately fifty members, all of whom are

Pleasant Ridge property owners, and the Association itself owns and rents a

duplex in Pleasant Ridge. Id. at 2 (#1). Joshua Craven, Tina Barnes, David

2
In its appellants’ brief, the City states that it contests many of the facts found in the Appealed Order, but
they do not challenge the facts presented here. Appellants’ Br. at 10 n.1. We observe that the City includes
evidence in its statement of facts that is not incorporated in the trial court’s findings of fact. Because our
standard of review requires us to consider only the evidence most favorable to the judgment, we ignore the
evidence that is irrelevant to or that does not support the trial court’s findings.

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 Keith, and Ellen Keith are Pleasant Ridge residents and homeowners. Id. (#2-

4). Craven is the president of the Association. Barnes is a member of the

Charlestown City Council (“the City Council”).3 Bolder Properties owns four

duplexes in Pleasant Ridge. Id. (#5).

[5] In 2001, the City Council passed an ordinance adopting the UBL pursuant to

Indiana Code Section 36-7-9-3. Id. at 19 (#85).4 The UBL provides local

governments with procedures to address unsafe buildings and premises but does

not set forth specific building safety standards. The UBL defines an “unsafe

building” in relevant part as one that is “dangerous to a person or property

because of a violation of a statute or ordinance concerning building condition or

maintenance.” Ind. Code § 36-7-9-4. An “unsafe premises” is an unsafe

building and the property it is located on. Id. The UBL authorizes local

governments to issue orders to property owners “requiring action relative to any

unsafe premises,” including “repair or rehabilitation of an unsafe building to

bring it into compliance with standards for building condition or maintenance

required for human habitation, occupancy, or use by a statute, a rule adopted

under IC 4-22-2, or an ordinance.” Ind. Code § 36-7-9-5(a)(5). The UBL

provides procedural protections for property owners who receive an order to

repair or rehabilitate an unsafe building, such as requirements as to the

3
In its appellants’ brief, the City refers to the City Council as the Common Council, but we use the term
used by the trial court for consistency.
4
The City’s ordinance adopting the UBL is not in the record, but the City acknowledges that it adopted the
UBL in 2001. Appellants’ Reply Br. at 49.

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 information to be included in an order, a “sufficient time” of ten to sixty days to

make repairs before a fine may be imposed, a ten-day period to appeal the

order, and limits on the civil penalty for noncompliance with an order to $2500

and on the accrual of such a civil penalty to not more than $1000 every ninety

days. Ind. Code §§ 36-7-9-5(b)-(c), -7(a), -7.5(b)-(c).

[6] In 2008, the City Council enacted the PMC, which establishes “minimum

requirements and standards” for existing residential and nonresidential

structures and premises “to insure public health, safety, and welfare.” Ex. Vol.

4 at 6.5 In addition, the PMC contains provisions to enforce its safety

requirements and standards, many of which address the same subject matter as

the enforcement provisions in the UBL, such as provisions which govern orders

and notice, the imposition of penalties, and the appeals process. Id. at 8-9, 11.

However, many PMC enforcement provisions differ from those in the UBL.

For example, the PMC allows twenty days to appeal an order rather than the

ten days provided by the UBL. Id. at 11 (§ 111.1). Also, the PMC provides,

“This ordinance does not supersede Federal or State laws, statutes or

regulations, except as allowed.” Id. at 26.

[7] In February 2016, the City Council enacted an ordinance that established an

inspection program. Appealed Order at 5 (#22). In August 2016, the City

began inspecting Pleasant Ridge rental properties for PMC violations and

5
Although the parties cite the exhibit volumes as part of the transcript, e.g., Tr. Vol. IV, the exhibit volumes
are titled “Exhibits,” and therefore we cite to the exhibit volumes separately from the transcript volumes.

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 issuing citations. The citations imposed a separate fine for each violation, the

fines were imposed as of the date the violation was discovered, and the fines

began accumulating daily. Id. at 9 (#42). In addition, the citations did not

provide any grace period to allow property owners to make repairs during

which fines would not be imposed. Id. The citations cite both the UBL and the

PMC and are confusing as to which provisions the City was intending to

operate under. Id. at 20 (#91-92). The citations explain that an appeal of the

order and fine may be made to the “hearing authority,” which is the term used

in the UBL. Id. (#91); Ex. Vol. 8 at 187, 192. The citations indicate that the

appeal period is ten days, which is from the UBL, rather than twenty days as

provided in the PMC. Appealed Order at 20 (#91) (citing Ind. Code § 36-7-9-

7(a) and PMC § 111.1); Ex. Vol. 8 at 187, 192. During the inspection process,

the City sought a search warrant to conduct an interior inspection, which was

issued pursuant to the UBL. Appealed Order at 20 (#91) (citing Ind. Code §

36-7-9-16).

[8] In January 2017, the Association filed an eleven-count complaint against the

City, which was subsequently amended to add the remaining appellees. In

February 2017, the Homeowners moved for a preliminary injunction, asking

the trial court to enjoin the City from continuing its practice of “imposing

ruinous fines that can be waived only by selling to the developer or tearing

down one’s own home” to force Pleasant Ridge property owners to sell to the

developer so that the developer can demolish every home and build a new

subdivision. Appellants’ App. Vol. 2 at 127-28. The motion for preliminary

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 injunction was based on four of the eleven counts in the complaint; namely,

that the City’s manner of enforcing the PMC violated (1) the UBL, (2) the PMC

itself, (3) the Equal Protection Clause, and (4) the Privileges and Immunities

Clause. Id. at 128.

[9] In September 2017, the trial court held an evidentiary hearing on the

Homeowners’ motion for preliminary injunction. In December 2017, the trial

court issued the Appealed Order granting a preliminary injunction. As to the

Homeowners’ claim that the City’s manner of enforcing the PMC violates the

UBL, the trial court concluded that they are unlikely to prevail on that claim

because the City is not required to follow the UBL. In relevant part, the trial

court found that based on the plain language of the UBL and Indiana Code

Chapter 36-1-3, also known as the Home Rule Act, the City was not required to

exclusively follow the UBL. Appealed Order at 18-20 (#83-92). The trial court

also found that the citations are “confusing as to what provisions of the UBL

and/or the PMC it is that the City intends to operate under, but the court

cannot find that they are REQUIRED to do one or the other exclusively.” Id.

at 20 (#92). The trial court declined the Homeowners’ request to make specific

findings regarding the City’s violations of the UBL, although it found that the

City “made no effort to argue that it ha[d] complied with the procedural

requirements” of the UBL, and that “if the UBL were mandatory, the City is

not in compliance.” Id. at 18, 20 (#82, 93).

[10] In contrast to its conclusion regarding the Homeowners’ UBL claim, the trial

court concluded that the Homeowners are likely to prevail on their claims that

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 the City’s manner of enforcing the PMC violated the PMC, the Equal

Protection Clause, and the Privileges and Immunities Clause. The trial court

concluded that because the Homeowners are likely to succeed on the merits of a

claim that the government is violating the law, a preliminary injunction should

issue under Indiana’s per se rule.6 The City now brings this interlocutory

appeal. The Homeowners cross-appeal the trial court’s finding that the City is

not required to follow the UBL and the conclusion that they are unlikely to

succeed on their UBL claim.

Discussion and Decision
[11] This is an appeal from the grant of a preliminary injunction. We observe that

the trial court is required to issue special findings of fact and conclusions

thereon when determining whether to grant a preliminary injunction. Thornton-

Tomasetti Eng’rs v. Indianapolis-Marion Cty. Pub. Library, 851 N.E.2d 1269, 1277

(Ind. Ct. App. 2006); Ind. Trial Rule 52(A). We review the special findings and

conclusions for clear error. Ind. Trial Rule 52(A). “Findings of fact are clearly

erroneous when the record lacks evidence or reasonable inferences from the

evidence to support them. A judgment is clearly erroneous when a review of

the record leaves us with a firm conviction that a mistake has been made.”

Coates v. Heat Wagons, Inc., 942 N.E.2d 905, 912 (Ind. Ct. App. 2011). “We

neither reweigh the evidence nor reassess witness credibility, but consider only

6
The per se rule provides that where a government entity clearly violates a law, the public interest is so great
that an injunction should issue without requiring the moving party to establish irreparable harm or greater
injury. Indiana Family & Soc. Servs. Admin. v. Walgreen Co., 769 N.E.2d 158, 161-62 (Ind. 2002).

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 the evidence favorable to the judgment and all reasonable inferences to be

drawn therefrom.” Clark’s Sales & Serv., Inc. v. Smith, 4 N.E.3d 772, 780 (Ind.

Ct. App. 2014). We review questions of law de novo. Planned Parenthood of

Indiana v. Carter, 854 N.E.2d 853, 863 (Ind. Ct. App. 2006), trans. denied.

[12] To obtain a preliminary injunction, the moving party typically must show by a

preponderance of the evidence that

(1) the movant’s remedies at law are inadequate, thus causing
irreparable harm pending resolution of the substantive action; (2)
the movant has at least a reasonable likelihood of success at trial
by establishing a prima facie case; (3) threatened injury to the
movant outweighs the potential harm to the nonmoving party
resulting from the granting of an injunction; and (4) the public
interest would not be disserved.

Apple Glen Crossing, LLC v. Trademark Retail, Inc., 784 N.E.2d 484, 487 (Ind.

2003). The power to issue a preliminary injunction should be used sparingly,

with such relief granted only in rare instances in which the law and facts are

clearly within the movant’s favor. Clark’s, 4 N.E.3d at 780.

[13] Although the trial court granted the preliminary injunction based on its

conclusion that the Homeowners are likely to succeed on three of their claims,

the Homeowners argue that the trial court clearly erred in concluding that they

are unlikely to succeed on their claim that the City’s manner of enforcing the

PMC violates the UBL. Specifically, they assert that contrary to the trial court’s

finding, the plain language of the UBL and Home Rule Act establishes that the

City is required to follow the UBL. We agree.

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[14] Resolution of this issue involves statutory interpretation, and such issues

“present questions of law, which we review de novo.” Matter of Supervised Estate

of Kent, 99 N.E.3d 634, 637 (Ind. 2018). “Our primary goal in reviewing

statutes is to determine and follow the legislature’s intent. The best indicator of

legislative intent is the statutory language, and where the statute is clear and

unambiguous, we apply it as drafted without resort to the nuanced principles of

statutory interpretation.” Id. at 638 (citations and quotation marks omitted).

“We give undefined terms their plain and ordinary meaning, and we may

consult English language dictionaries when they are helpful in determining that

meaning.” Id. However, where a word is defined, we are bound by that

definition. Id.

[15] We begin by examining the UBL. Section 36-7-9-1 provides, “This chapter

applies to each consolidated city and its county. This chapter also applies to any

other municipality or county that adopts an ordinance under section 3 of this

chapter.” Section 36-7-9-3 provides, “The legislative body of a municipality or

county may adopt this chapter by ordinance.” By its plain terms, the UBL

applies to consolidated cities, but it applies to other municipalities only if they

voluntarily adopt it. Here, the parties agree that the City was not required to

adopt the UBL.7 However, the trial court found, and the City agrees, that in

2001, the City passed an ordinance adopting the UBL pursuant to Section 36-7-

7
The unspoken premise here is that the City is not a consolidated city.

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 9-3. Having adopted the UBL, the City is now bound by its provisions. Ind.

Code § 36-7-9-1.

[16] Generally, the provisions of the UBL apply to “unsafe buildings” and “unsafe

premises.” These terms are defined as follows:

(a) For purposes of this chapter, a building or structure, or any
part of a building or structure, that is:

(1) in an impaired structural condition that makes it unsafe
to a person or property;

(2) a fire hazard;

(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;

is considered an unsafe building.

(b) For purposes of this chapter:

(1) an unsafe building; and

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 (2) the tract of real property on which the unsafe building
is located;

are considered unsafe premises.

Ind. Code § 36-7-9-4 (emphasis added). Significant to this case is that an unsafe

building is one that is “dangerous to a person or property because of a violation

of [an] ordinance concerning building condition or maintenance.” Id. The

UBL itself does not contain any specific building safety standards, but it clearly

anticipates that municipalities have or will adopt ordinances with such safety

standards.8

[17] The UBL provides local governments with procedures to enforce compliance

with local building ordinances. Section 36-7-9-5(a) provides,

The enforcement authority may issue an order requiring action
relative to any unsafe premises, including … repair or rehabilitation
of an unsafe building to bring it into compliance with standards for
building condition or maintenance required for human
habitation, occupancy, or use by a statute, a rule adopted under
IC 4-22-2, or an ordinance.

8
Also, the UBL addresses vacant structures and provides as follows:
In recognition of the problems created in a community by vacant structures, the general
assembly finds that vigorous and disciplined action should be taken to ensure the proper
maintenance and repair of vacant structures and encourages local governmental bodies to adopt
maintenance and repair standards appropriate for the community in accordance with this
chapter and other statutes.
Ind. Code § 36-7-9-4.5(k). We note that when the City cites this provision in its argument, it ignores the fact
that it applies to vacant structures.

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(Emphases added.)9 By its plain terms, Section 36-7-9-5(a) governs orders that

apply to “unsafe premises,” which is a term specifically defined in Section 36-7-

9-4. Therefore, the orders governed by Section 36-7-9-5(a) apply to buildings

that are dangerous to a person or property because of a violation of an

ordinance concerning building condition or maintenance. Ind. Code § 36-7-9-4.

We note that because Section 36-7-9-5 provides that the “enforcement authority

may issue an order,” the enforcement authority is not required to issue an order.

Although part of Section 36-7-9-5(a) is permissive, it also contains mandatory

provisions: “Notice of the order must be given under section 25 of this chapter.

The ordered action must be reasonably related to the condition of the unsafe

premises and the nature and use of nearby properties.” (Emphases added.)

Accordingly, by their plain terms, these provisions of the UBL apply whenever

the enforcement authority does choose to issue an order relative to any

buildings that are dangerous to a person or property because of a violation of an

ordinance concerning building condition or maintenance. Local governments

that have adopted the UBL are required to comply with these and other such

mandatory provisions. As previously mentioned, the UBL provides procedural

protections for property owners who receive an order to repair or rehabilitate an

unsafe building, such as requirements as to the information to be included in an

order, a “sufficient time” of ten to sixty days to make repairs before a fine may

be imposed, a ten-day period to appeal the order, and limits on the civil penalty

9
The “enforcement authority” is the chief administrative officer of the department authorized to administer
the UBL. Ind. Code § 36-7-9-2.

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 for noncompliance with an order to $2500 and on the accrual of such a civil

penalty to not more than $1000 every ninety days. Ind. Code §§ 36-7-9-5(b)-(c),

-7(a), -7.5(b)-(c).

[18] In 2008, the City adopted the PMC, which sets forth specific building and

property standards to insure public health, safety and welfare. Pursuant to the

UBL’s plain terms, a violation of the PMC safety standards that renders a

building dangerous to a person or property is an unsafe building to which the

UBL applies. Ind. Code § 36-7-9-4(a)(5). As discussed, the UBL does not

provide specific building safety standards, so in this respect, the PMC is

complementary to the UBL. However, the PMC contains its own enforcement

provisions, such as those which govern notice of violations, the imposition of

penalties, and the appeals process, which overlap with but differ from the UBL

enforcement provisions. Ex. Vol. 4 at 8-9, 11. The City argues that pursuant to

the Home Rule Act, it is not required to follow the enforcement provisions of

the UBL but rather is empowered to choose whether to operate under the UBL

or the PMC. We disagree.

[19] It is true, as the City asserts, that the Home Rule Act implements the “policy of

the state … to grant units all the powers that they need for the effective

operation of government as to local affairs.” Ind. Code § 36-1-3-2. And the

Home Rule Act provides that “a unit has: all powers granted it by statute; and

all other powers necessary or desirable in the conduct of its affairs, even though

not granted by statute.” Ind. Code § 36-1-3-4(b). However, the Home Rule

Act also provides that “[i]f there is a constitutional or statutory provision

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 requiring a specific manner for exercising a power, a unit wanting to exercise

the power must do so in that manner.” Ind. Code. § 36-1-3-6. Given that the

City has adopted the UBL, the Home Rule Act, by its plain terms, requires the

City to obey the UBL.10 Moreover, the PMC explicitly provides, “This

ordinance does not supersede Federal or State laws, statutes or regulations,

except as allowed.” Ex. Vol. 4 at 26.

[20] Based on the foregoing, we conclude that the City is required to comply with

the UBL and that the City must enforce the PMC within the confines and

strictures of the UBL. Accordingly, the trial court clearly erred in finding that

the City is not required to follow the UBL. Because the trial court found that

the UBL was not mandatory, the trial court did not address how the UBL

impacts the City’s enforcement of the PMC. Some of the provisions in the

UBL are permissive, others are mandatory. Some provisions of the PMC may

conflict with the UBL, some provisions will be compatible with the UBL, and

many provisions will address subject matter not covered by the UBL.

Therefore, we remand for the trial court to consider how the UBL and the PMC

work together in light of our conclusion that the City is bound to enforce the

PMC in accordance with the UBL, and to reconsider the Homeowners’ claim

10
The City argues that the PMC has legal force independent of the UBL because nothing in the UBL
“‘expressly denies’ local units the power to choose their own safety regulations and means of enforcement for
those requirements.” Appellants’ Reply Br. at 48. It is true that the UBL does not contain specific safety
regulations. As discussed, the UBL anticipates that municipalities have or will adopt specific safety
regulations. In addition, the UBL does not prohibit local units from choosing their own means of
enforcement. However, the City chose to adopt the UBL, and therefore it is bound by the enforcement
provisions of the UBL.

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 that the City’s manner of enforcing the PMC violates the UBL. Further,

because the trial court based its conclusions regarding the Homeowners’

remaining claims on the erroneous premise that the City is not required to

follow the UBL, those claims, if the Homeowners choose to pursue them, will

need to be reexamined. As such, we need not address the issues raised by the

City. We reverse the Appealed Order and the order granting the preliminary

injunction and remand for further proceedings consistent with this opinion.

[21] Reversed and remanded.

Bailey, J., and Brown, J., concur.

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