Jose Andrade v. City of Hammond and Hammond Board of Public Works and Safety

FILED
Nov 15 2018, 9:02 am

CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEES
Patrick B. McEuen David C. Jensen
Portage, Indiana John M. McCrum
Robert J. Feldt
Kevin T. McNamara
Eichhorn & Eichhorn, LLP
Hammond, Indiana

IN THE
COURT OF APPEALS OF INDIANA

Jose Andrade, November 15, 2018
Appellant-Plaintiff, Court of Appeals Case No.
18A-MI-1199
v. Appeal from the Lake Superior
Court
City of Hammond and The Honorable Calvin D.
Hammond Board of Public Hawkins, Judge
Works and Safety, Trial Court Cause No.
Appellees-Defendants. 45D02-1508-MI-15

Riley, Judge.

Court of Appeals of Indiana | Opinion 18A-MI-1199 | November 15, 2018 Page 1 of 20
 STATEMENT OF THE CASE
[1] Appellant-Plaintiff, Jose Andrade (Andrade), appeals the trial court’s order

affirming the decision of Appellee-Defendant, Hammond Board of Public

Works and Safety (the Board), to restore the 6609 Jefferson Avenue Home (the

Home) owned by him to a single-family dwelling.

[2] We affirm.

ISSUES
[3] Andrade presents us with three issues on appeal, which we restate as:

1) Whether the Board exceeded its statutory authority when it ordered

Andrade to restore the Home to a single-family dwelling;

2) Whether the Board’s finding that the Home was originally built as a

single-family residence was supported by substantial evidence; and

3) Whether the failure of the City of Hammond (the City) to produce

the 1927 Hammond building code in response to Andrade’s subpoena

duces tecum merits reversal.

FACTS AND PROCEDURAL HISTORY
[4] Andrade is a landlord who owns thirty-two properties with a total of sixty-two

rental units. The Home was constructed in Hammond in 1927 and was

purchased by Andrade in 1998. The Home was divided into five separate

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 apartments before Andrade purchased it, and he continued to rent the five

units. The City first inspected the Home on March 13, 2013. That inspection

yielded a Notice of Violation mailed on May 10, 2013, (the 2013 Notice) which

provided that the Home had been found to be an unsafe building in violation of

Indiana’s Unsafe Building Law (the UBL). The 2013 Notice listed various

Hammond Municipal Code and International Building Code violations that the

City relied upon to conclude that the Home was unsafe. All five of the units of

the Home were marked as uninhabitable by the City. On May 14, 2015, the

Board held a hearing on the 2013 Notice in Andrade’s absence, which the Lake

County Superior Court subsequently found had taken place without proper

notice to Andrade. The Lake County Superior Court remanded the matter to

the Board for further proceedings.

[5] Because of the amount of time that had elapsed since the first inspection, the

City had the Home re-inspected on September 8, 2016, by Building

Commissioner Kurtis Koch (Koch). As a result of that inspection, the City

issued Andrade a second Notice of Violation (the 2016 Notice) which provided

that the Home had been found to be an unsafe building pursuant to the UBL.

The 2016 Notice identified twelve groupings of impaired structural conditions,

eleven groupings of fire hazards, and six groupings of “a violation of a statute

or ordinance concerning building condition or maintenance” all of which,

under the UBL, rendered the Home an unsafe building. (Appellant’s App. Vol.

II, p. 42).

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[6] A hearing on the 2016 Notice was scheduled for January 12, 2017. On January

4, 2017, Andrade served the City’s Chief of Inspections Kelly Kearney

(Kearney) with a subpoena duces tecum requesting that he bring to the hearing

all “regulations, ordinances, and/or statutes” used by him to support his

previous testimony before the Board at the first hearing regarding various

unsafe conditions at the Home. (Appellant’s App. Vol. II, pp. 44-45). The City

did not comply with Andrade’s subpoena.

[7] The January 12, 2017, hearing took place before the three-member Board.

Koch testified regarding various unsafe conditions in the home, including the

Home’s balloon framing which was typically used in single-family homes built

around 1927. This was a significant safety concern because that type of framing

allowed fire and smoke to travel through a home unimpeded. Koch also

testified that the Home’s rear stairway was unsafe under the UBL because the

stair width was inadequate to accommodate any first responders and their gear

in an emergency. Koch identified other unsafe conditions in the home, such as

the basement entrance which could not accommodate first responders, the fact

that the bedroom basement lacked windows preventing escape in case of fire,

and a chimney chase with inadequate fire stopping. Koch concluded that the

Home was built in 1927 as a single-family home because it was built to the

same standards as hundreds of other single-family homes in the area and had

none of the structural elements which would have been present in a multi-

family structure built in 1927. It was Koch’s opinion that, in its current

configuration, the Home was unsafe. Andrade’s counsel cross-examined Koch

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 on a variety of topics, including the width of the stairs in the rear stairway, the

Home’s water heater for which Andrade also had been cited, inaccuracies in the

City’s permitting lists, and the similarities between the two inspection reports

which formed the basis of the 2013 and 2016 Notices of Violation.

[8] Kearney testified at the January 12, 2017, hearing that the City’s ledger of

building permits showed that the Home was issued a building permit for a

“[n]ine room frame” which indicated to him that the Home had been

constructed as a single-family home. (Appellee’s App. Vol. II, p. 103).

Kearney noted that during that era, if a structure was to be built with multiple

apartments, it would have been indicated in the ledger entry. It was Kearny’s

opinion that the Home was unsafe because it had impaired structural

conditions, fire hazards, and ordinance violations. Kearny requested on behalf

of the City that the Board remove any apartments from the Home that were

unsafe.

[9] On cross-examination, Andrade’s counsel asked Kearney questions about what

the 1927 Hammond building code would have required in terms of basement

window height, the use of wooden support beams in the home, kick plates on

stairs, hallway doors, basement ceiling height, and electrical meters. A

discussion ensued between Andrade’s counsel and the City’s counsel regarding

the City’s failure to bring to the hearing the documents Andrade sought in his

subpoena duces tecum. The City posited that it was not required to bring the

requested documents for a variety of reasons, including that the material sought

was publicly available. The discussion ended as follows:

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 Andrade’s Counsel: But I asked for the ones that particularly he
relied on in particular.

City’s Counsel: Which are identified in the notice that’s already
been offered in the exhibit.

Andrade’s Counsel: Let’s move on. Let’s move on.

(Appellee’s App. Vol. II, p. 120).

[10] Andrade offered testimony and documentary evidence to the Board that he

contended proved that the Home was built as a multi-family unit in 1927.

Andrade’s counsel argued to the Board during Andrade’s testimony that “if this

house is ruled a single-family house, [Andrade] knows that, you know, it’s over

for him with this house.” (Appellee’s App. Vol. II, pp. 182-83).

[11] At the end of the hearing, the City argued to the Board that, regardless of

whether the Home was built as a single or multi-family home, the UBL gave

them the authority to act to address unsafe buildings. During his closing

remarks to the Board, Andrade’s counsel noted that “[o]pposing counsel has

indicated that the issue is the [UBL], which we understand.” (Appellee’s App.

Vol. III, p. 2). Andrade’s counsel also argued

And [Andrade] understood that his building was a single-family
home – was not – excuse me – was not a single-family home
when constructed. And I want to focus your Board on that – the
Board on that issue. Because if it is not a single-family home,
then it will stay the way it is depending on what you do in your
decision.

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 However, if it is ruled that it was a single-family home, then this
property can’t exist economically.

(Appellee’s App. Vol. III, p. 2).

[12] On March 9, 2017, the Board issued twenty-five findings of fact and its

conclusions of law in which it found in relevant part as follows:

5. The property as currently configured contains five apartment
units, including one in the basement, two on the main floor, and
two on the second floor.

****

7. Commissioner Koch found that the cellar apartment was
unsafe, as were two second floor apartments and one first floor
apartment.

****

19. The ledger entry in the City of Hammond records reflects that
the building at 6609 Jefferson was built as a nine-room frame
construction.

20. There are no building permits to show that the property was
lawfully converted to a multi-dwelling property at any point in its
history.

21. The building was not erected as a multi-unit structure in 1927
and was never legally converted to a multi-unit apartment
building thereafter.

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 22. The property at 6609 Jefferson is currently zoned Rl-U,
which is Urban Single Family Residential District, and as such
allows for two-family attached dwelling units not to exceed
twenty percent (20%) of the dwelling units on the block.

23. The Inspections Department seeks to have the unsafe units
removed on the property pursuant to the Indiana Unsafe
Building Law, as adopted by local ordinance.

****

25. Mr. Andrade has made some general repairs to the property
since he bought it in 1998; however, there is no evidence that Mr.
Andrade has made or has caused to be made major structural
repairs that would remove the unsafe conditions existing on and
within the premises.

(Appellant’s App. Vol. II, pp. 187, 189-90). The Board concluded that “[a]s

currently configured, [the Home] contains structural conditions and fire hazards

that are dangerous to its occupants, rendering the premises unsafe and in

violation of [the UBL].” (Appellant’s App. Vol. II, p. 194). In addition, the

Board concluded that the apartments in the Home were never lawfully

constructed and cited to case law pertaining to the zoning law concept of a

lawful non-conforming use. The Board found that the apartments could not be

lawfully occupied in the Home’s present condition but that “[s]hould proper

zoning approval be obtained, the maximum number of units permitted at this

location is two units.” (Appellant’s App. Vol. II, p. 195). The Board ordered

Andrade to restore the Home to a single-family dwelling.

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[13] Andrade sought judicial review of the Board’s orders. On February 8, 2018, the

trial court held an evidentiary hearing on Andrade’s request for review. On

March 28, 2018, the trial court entered its findings of fact and conclusions of

law in which it found in relevant part:

11. The Hammond building inspectors offered opinion
testimony to the Board in 2017 that [Andrade’s] building “does
not meet any Code for multi-family dwellings in 1927”, but the
failure to produce the Code, as subpoenaed by [Andrade],
precluded any cross examination as to the grounds for those
opinions.

(Appellant’s App. Vol. II, pp. 15-16). The trial court found that the Board’s

findings, namely that the Home had the unsafe conditions of inadequate fire

stopping, lack of fire blocking, flammable support beams, inadequate fire

separation, improperly braced stairs of inadequate width, lack of basement

apartment bedroom windows, low basement ceilings that would contribute to

smoke accumulation and prevent egress in an emergency, and inadequate

smoke detectors, were well-supported by the record. The trial court concluded

that the original permitting of the Home as either single-family or multi-family

was not determinative of whether the Home was unsafe as defined by the UBL

and as found by the Board. The trial court upheld the Board’s order that

Andrade restore the Home to a single-family dwelling.

[14] Andrade now appeals. Additional facts will be provided as necessary.

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 DISCUSSION AND DECISION
I. Standard of Review

[15] This matter comes before us on appeal from a judicial review of an

administrative order. The City and the Board are not subject to the

Administrative Orders and Procedures Act (AOPA), which specifically

excludes political subdivisions. Ind. Code § 4-21.5-1-3 (excluding political

subdivisions from the definition of “agency”). The City and the Board are

political subdivisions pursuant to Indiana Code sections 36-1-2-13 and -10.

Nevertheless, Indiana courts have applied general administrative law principles

to contexts outside of administrative agency actions governed by AOPA, and

so, as in those cases, we will apply those principles here. See City of Jasper v.

Collingnon, 789 N.E.2d 80, 87 (Ind. Ct. App. 2003) (applying administrative law

principles to action taken by a city and its Wage Committee), trans. denied.

[16] The UBL provides that an action taken to enforce its provisions is subject to

judicial review, which is done de novo. Ind. Code § 36-7-9-8(a), (c). Under the

de novo standard of review, a court

may, to a limited extent, [weigh] the evidence supporting the
finding of fact by an administrative agency. But it may negate
that finding only if, based upon the evidence as a whole, the
finding of fact was

(1) arbitrary,

(2) capricious,

(3) an abuse of discretion,

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 (4) unsupported by the evidence or

(5) in excess of statutory authority.

Kollar v. Civil City of South Bend, 695 N.E.2d 616, 619 (Ind. Ct. App. 1998), trans.

denied. A trial court may not substitute its judgment for that of the agency, and

the facts are to be determined but once. Id. at 619-20. What is more, when, as

in this case, the trial court enters special findings of fact pursuant to Indiana

Trial Rule 52(D), we conduct a two-step review wherein we first determine

whether the evidence supports the findings and then whether the findings

support the judgment. Foursquare Tabernacle Church of God in Christ v. Dep’t of

Metro. Dev. of Indianapolis, 630 N.E.2d 1381, 1386 (Ind. Ct. App. 1994), trans.

denied. We will reverse the trial court’s judgment only if it is clearly erroneous,

and a judgment is clearly erroneous only if it is unsupported by the findings of

fact and conclusions of law entered on those findings. Id.

II. The Board’s Authority

[17] Andrade contends that the Board exceeded its statutory authority by acting as a

zoning authority when it ordered him to restore the Home to a single-family

dwelling. 1 The City counters that it acted within the authority provided to it by

1
Andrade’s contentions that the Board’s actions were in violation of the Takings Clause and were an
abuse of discretion are undeveloped and unsupported by cogent authority in contravention of Indiana
Appellate Rule 46(A)(8)(a) (appellate argument must be supported by cogent argument supported by
citations to authority). Those arguments are waived for our review. See Price v. Review Bd. of Indiana
Dep’t of Workforce Dev., 2 N.E.3d 13, 16-17 (Ind. Ct. App. 2013) (finding appellant’s argument waived
for failure to provide cogent argument).

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 the UBL. 2 Administrative entities are creatures of statute and cannot exercise

power beyond that given in their creation. Adkins v. City of Tell City, 625 N.E.2d

1298, 1302 (Ind. Ct. App. 1993). Thus, in order to address Andrade’s

argument, we must examine the language of the UBL itself to discern what

authority it provided to the Board to act. Statutory interpretation is a question

of law reserved to the courts. City of Kokomo v. Iseminger, 868 N.E.2d 1169,

1171 (Ind. Ct. App. 2007), trans. denied. “If the language of the statute is clear

and unambiguous, it is not subject to judicial interpretation.” Id. In other

words, an appellate court must give an unambiguous statute its clear and plain

meaning. McCabe v. Commissioner, Indiana Dep’t of Ins., 949 N.E.2d 816, 819

(Ind. 2011).

[18] The UBL provides a statutory framework for a city, town, or county to address

unsafe buildings. I.C. § 36-7-9 et seq. The UBL defines an unsafe building one

that is

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

(2) a fire hazard;

2
The City argues that Andrade waived the issue of whether this matter was governed by the UBL, but
it does not argue that Andrade waived his claim that the Board acted in excess of its statutory authority
provided by the UBL.

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 (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[.]

I.C. § 36-7-9-4(a). The statute is written in the disjunctive, meaning that a

building may be considered unsafe if it falls into any one of the six categories

listed in the statute. See Bourbon Mini-Mart, Inc. v. Commissioner, Indiana Dep’t of

Envtl. Mgmt., 806 N.E.2d 14, 20 (Ind. Ct. App. 2004) (noting that “or” is a

function word to indicate an alternative). 3 If a premises is unsafe under Section

4, the UBL provides that the enforcement authority may issue an order

requiring action relative to the unsafe premises, including, in relevant part:

(1) vacating the unsafe building;

3
After Appellees filed their brief but before Andrade’s Reply brief was due, the court handed down City of
Charlestown v. Charlestown Pleasant Ridge Neighborhood Ass’n Corp., No. 10A01-1712-CT-2896, 2018 WL
4290649, slip op. at *4-6 (Ind. Ct. App. Sept. 10, 2018), which concerned interpretation of subsection (5)
relating to buildings which are deemed unsafe due to a statutory or ordinance violation, which is only one of
the six enumerated conditions which can cause a building to be considered unsafe under the UBL.

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 ***

(6) demolition and removal of part of an unsafe building.

I.C. § 36-7-9-5(a). Thus, the enforcement authority may order the unsafe

building to be vacated and partially demolished and removed.

[19] Here, the Board entered an order granting the City’s request that the four unsafe

apartments in the Home be removed. That process would necessitate the

vacating, demolition, and removal of the unsafe apartments, all of which would

effectively return the Home to a single-family home. Thus, the action ordered

by the Board falls squarely within the ambit of the UBL’s unambiguous

provisions.

[20] In addition, we cannot agree with Andrade’s characterization of the Board’s

order, as affirmed by the trial court, as one which sought to “merely enforce the

Hammond Zoning Ordinance.” (Appellant’s Br. p. 16). Both Notices of

Violation were issued pursuant to the UBL, not local zoning ordinances. The

2016 Notice alleged twelve groupings of impaired structural conditions, eleven

groupings of fire hazards, and six groupings of statute or ordinance violations

that did not pertain to zoning, so Andrade’s contention that the City only

asserted zoning ordinance violations as the basis for its enforcement action is

factually incorrect. The Board exhibited no indication at the hearing in this

matter that it acted under any other authority apart from the UBL. In its

decision, the Board made detailed findings regarding conditions in the Home

which rendered it unsafe under the UBL, including that the Home had impaired

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 structural conditions and fire hazards. Findings and conclusions made by the

Board that the Home was not a legal, non-conforming use or that the Home did

not conform to current zoning laws may have been pertinent to explaining the

history of how the Home came to be unsafe, but they did not convert this

matter from one addressing unsafe conditions in the Home into a zoning

enforcement action.

[21] We also note that Andrade’s arguments on appeal are somewhat inconsistent

with his counsel’s acknowledgement at the Board hearing that the proceedings

were based on the UBL and with his request that the Board focus on Andrade’s

contention that the Home was constructed as a multi-family structure.

Andrade’s counsel made it clear to the Board that the Home would no longer

be profitable to Andrade if it were declared a single-family home. The Board’s

reference in its decision to the fact that the home was zoned for two units was

pertinent to addressing that concern. Because the UBL provided the authority

for the action ordered by the Board and the Board did not make any

impermissible findings to support that action, we conclude that the Board did

not exceed its statutory authority when it ordered Andrade to restore the Home

to a single-family dwelling.

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 III. Sufficiency of the Evidence Supporting the Board’s Order

[22] Andrade challenges the Board’s finding, as upheld by the trial court, that the

Home was constructed as a single-family home. 4 Andrade contends that “[t]he

Board’s Order is without substantial evidence and not in accordance with law”

because he met his burden of proof to show that the Home was constructed as a

multi-family unit. (Appellant’s Br. p. 19). Andrade’s argument on this point is

based upon his erroneous assertion that the Board acted as a zoning

enforcement entity and that proof that the Home was originally built as a multi-

family structure would bar the Board’s order that he restore the Home to a

single-family home.

[23] We agree with Appellees that this argument is misplaced, because the UBL

provides that any order issued to address an unsafe building “supersedes any

permit relating to building or land use, whether that permit is obtained before or

after the order is issued.” I.C. § 36-7-9-5(a) (emphasis added). Thus, for

purposes of the UBL, it is of no moment how the property was originally built

or zoned.

[24] Nevertheless, we will address the merits of Andrade’s argument. 5 Evidence was

presented to the Board that the home was originally issued a building permit in

4
Because Andrade only challenges that sufficiency of the evidence supporting these specific findings
and not the Board’s findings and conclusion regarding the actual unsafe conditions in the Home, we do
not address the totality of the evidence supporting the Board’s decision as upheld by the trial court.
5
Inasmuch as Andrade raises a claim of impropiety or bias on the part of one of the Board members,
we find that this argument was not raised at the trial court level and, therefore, is waived for our review.

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 1927 for a nine-room frame, which indicated to Kearney that the home was

built as a single-family home. The original building permit issued for the Home

did not note that there would be apartments there, which Kearney indicated

would typically have been noted if it were to be built as a multi-family structure.

Koch testified that the Home did not have any structural elements typical of a

multi-family structure built in 1927. Koch found the home comparable to many

other single-family homes in the area built around 1927, and he expressed his

opinion that the Home was built in 1927 as a single-family home. In light of

this evidence that supports the Board’s findings as affirmed by the trial court,

we cannot say that the trial court’s conclusion that the home was built in 1927

as a single-family home was clearly erroneous. Foursquare Tabernacle, 630

N.E.2d at 1386. Andrade simply directs our attention to evidence in the record

that does not support the Board’s and the trial court’s conclusions, which is

unpersuasive given that we do not substitute our judgment for that of the Board

or redetermine the facts of the case. Kollar, 695 N.E.2d at 619.

IV. Discovery Violation

[25] Andrade’s final argument is that the Board’s order should be reversed because

the City did not comply with his subpoena duces tecum, which he claims resulted

in his inability to cross-examine the City’s experts, Koch and Kearney. 6 As a

See Kollar, 695 N.E.2d at 622 (“A party may only obtain judicial review of issues that were properly
raised to the trial court.”).

6
The portion of Andrade’s argument based on Indiana

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 result of this non-compliance, Andrade contends that the “Board’s decision was

made without observance of procedure required by law.” (Appellant’s Br. p.

23). At the outset, we note that, contrary to Andrade’s assertion on appeal, the

trial court did not find that he had been “wholly precluded” from cross-

examining the City’s expert witnesses. (Appellant’s Br. p. 25). Rather, the trial

court found that the City’s non-compliance merely had precluded Andrade

from cross-examining the experts regarding their opinion that the Home did not

meet the standards of the 1927 building code for multi-family dwellings.

[26] Pretrial discovery is meant to promote the interests of justice and prevent unfair

surprise by allowing the defense adequate time to prepare. Jacobs v. State, 640

N.E.2d 61, 66 (Ind. Ct. App. 1994) (emphasis added), trans. denied. As a

general matter, the proper remedy for a discovery violation is a continuance.

Warren v. State, 725 N.E.2d 828, 832 (Ind. 2000). A failure to request a

continuance upon moving to exclude evidence constitutes a waiver of any

alleged error pertaining to noncompliance with a discovery order. Id. Here,

although Andrade objected at the Board hearing on the basis that the City had

not complied with his subpoena, he did not request a continuance or seek to

exclude either Kearney’s or Koch’s testimony before the Board. Therefore, we

conclude that Andrade has waived his claim.

Evidence Rule 705 was not raised to the trial court and is, therefore, waived for our review. Kollar, 695
N.E.2d at 622.

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[27] However, even if he had not waived his claim, we would not reverse the

Board’s decision. This matter commenced in March of 2013. Kearney testified

at the first Board hearing on May 14, 2015, and the Lake County Superior

Court remanded the matter for further proceedings on June 23, 2016, almost six

months before the second hearing before the Board on January 12, 2017. In

addition, Andrade deposed Koch on at least one occasion during the pendency

of this matter. Despite being aware of the substance of Kearney’s opinions, at

no time did Andrade seek an order that the City comply with his subpoena or

request that the Board exclude Kearny’s or Koch’s testimony or seek a

continuance when the matter of the City’s non-compliance came up during the

January 12, 2017, hearing. Andrade provides us with no authority for his

apparent proposition that the Board had an obligation, sua sponte, to enforce his

discovery request. Given the length of time that Andrade was aware of the City

experts’ opinions and his failure to seek a remedy before or during the hearing

in this matter, we conclude that Andrade was not unfairly surprised by the

City’s failure to comply with his subpoena.

[28] In addition, in his subpoena Andrade sought material relied upon by Kearney

to form opinions relevant to iron support beams, rear stairway conditions,

ceiling heights, electric meters, balloon framing, and basement window height.

In its decision the Board found that the Home’s chimney chase, inadequate fire

separation among the floors of the Home, the lack of basement bedroom

windows, and inadequate smoke detectors were all conditions that rendered the

Home unsafe under the UBL. Those conditions had nothing to do with the

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 materials sought by Andrade in his subpoena, and Andrade does not claim his

ability to cross-examine the experts on those matters was limited. As a result,

we find that the trial court’s decision to uphold the Board’s order, despite the

City’s lack of compliance with Andrade’s subpoena, was not clearly erroneous.

Foursquare Tabernacle Church, 630 N.E.2d at 1386.

CONCLUSION
[29] Based on the foregoing, we conclude that the Board did not exceed its statutory

authority when it ordered Andrade to restore the Home to a single-family

dwelling. We also conclude that the Board’s finding, as upheld by the trial

court, that the Home was constructed as a single-family dwelling was supported

by substantial evidence. Lastly, we conclude that the City’s failure to comply

with Andrade’s discovery request does not merit reversal.

[30] Affirmed.

[31] Vaidik, C. J. and Kirsch, J. concur

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