Town of Clarksville, Aaron Stonecipher, Paul Fetter, Jennifer Voignier, and John Gilkey v. Plum Creek Crossing Apartments, LLC (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
FILED
regarded as precedent or cited before any May 10 2019, 9:05 am

court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.

ATTORNEY FOR APPELLANTS ATTORNEY FOR APPELLEE
C. Gregory Fifer John A. Kraft
Applegate Fifer Pulliam LLC Young, Lind, Endres & Kraft
Jeffersonville, Indiana New Albany, Indiana

IN THE
COURT OF APPEALS OF INDIANA

Town of Clarksville, Aaron May 10, 2019
Stonecipher, Paul Fetter, Court of Appeals Case No.
Jennifer Voignier, and John 18A-PL-2857
Gilkey, Appeal from the Clark Circuit
Appellants-Defendants, Court
The Honorable J. Terrence Cody,
v. Special Judge
Trial Court Cause No.
Plum Creek Crossing 10C02-1705-PL-45
Apartments, LLC,
Appellee-Plaintiff.

Friedlander, Senior Judge.

Court of Appeals of Indiana | Memorandum Decision 18A-PL-2857 | May 10, 2019 Page 1 of 13
 Statement of the Case
[1] Appellants Town of Clarksville, Indiana, and four members of the Town’s

Council (collectively, “the Town”) appeal the trial court’s grant of partial

summary judgment to Plum Creek Crossing Apartments, LLC (“Plum Creek”),

in a zoning dispute. We reverse and remand.

Issue
[2] The Town raises two issues, which we consolidate and restate as: whether the

trial court erred in granting partial summary judgment to Plum Creek.

Facts and Procedural History
[3] Plum Creek contracted to purchase a 3.14-acre parcel of vacant land on

Clarksville’s north side. The property is surrounded by a mix of business and

residential zones. Plum Creek intended to build an apartment complex, but in

order to do so, it needed to have the Town rezone the property from B1
1
(commercial) to R3 (residential).

[4] On December 20, 2016, Plum Creek filed with the Town an application to

rezone the land. Plum Creek asserted it was requesting a “downzone” to a

“less intense use which should have a positive impact” on neighboring property

values. Appellants’ App. Vol. II, p. 34.

1
Plum Creek initially sought to have the property rezoned as a planned unit development but later chose to
instead request rezoning the property from B1 to R3.

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[5] Plum Creek also sought a variance from setback requirements for the proposed

apartment buildings. Specifically, Plum Creek requested a ten-foot rear yard

setback rather than the standard twenty-foot setback required in an R3 zone.

On January 25, 2017, the Town’s Board of Zoning Appeals determined that the

variance, if approved, should not substantially affect “the use and value” of

adjacent properties and would not pose a threat to “the public health, safety,

morals, and general welfare of the community.” Id. at 50. The Board

concluded that approval of the variance would be granted if the Town also

granted Plum Creek’s petition to rezone the property.

[6] Meanwhile, the Town’s Planning Department hired Kovert Hawkins Architects

to assess whether Plum Creek’s proposed apartment complex would

complement surrounding neighborhoods and comply with the Town’s zoning

ordinance. The architects noted that Plum Creek’s property was located

between commercially zoned property and residentially zoned single-family

property. They concluded the proposed apartment complex was a “transition”

between the two zoning classifications, and a multi-family development would

“make sense” in that context. Id. at 71.

[7] Katherine Groskreutz, who worked for the Town’s Planning Department,

issued a report on the property in preparation for a February 1, 2017 meeting of

the Town’s Plan Commission (“the Commission”). She noted Clarksville is

surrounded by other municipalities, and, as a result, the town could grow only

through redevelopment, or “infill,” of existing properties rather than addition of

new territory. Id. at 56. Groskreutz further stated Plum Creek’s proposed

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 apartment complex was “in conformance with most of the relevant objectives

and policies of the [Town’s] Comprehensive Plan,” including “focusing

development on infill and housing diversity.” Id. at 59. In her opinion, the

complex would be “a good design and land use buffer” between neighboring

single-family homes and commercial properties. Id. at 57. The report further

noted that Clarksville’s current rental units are concentrated in the center of

town, and some “appear to be nearing the end of their life cycle and will soon

become obsolete.” Id. Plum Creek’s proposed apartment complex would “be

new and in an area other than the center of Clarksville.” Id.

[8] The Commission considered Plum Creek’s rezoning application at a February

1, 2017 meeting. Plum Creek’s attorney distributed “statutory considerations”

and discussed them with the Commission’s members. Appellants’ App. Vol.

III, pp. 55-56. The Commission members raised questions about traffic, the

amount of vacant rental property in town, and the building materials that

would be used, among other topics. In addition, six members of the

community asked questions and raised concerns about the appearance of the

proposed complex and traffic. One commenter asked that the rezoning request

be denied. At the end of the meeting, the Commission tabled Plum Creek’s

application for consideration at another meeting.

[9] On February 27, 2017, a traffic engineer released a study indicating that the

proposed apartment complex would generate less traffic than a retail

development on the same site.

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[10] The Commission considered Plum Creek’s application again at a March 1,

2017 hearing. The Commission’s staff indicated Plum Creek had addressed

concerns about building materials. In addition, four citizens provided public

comments. Two of the citizens indicated they would prefer to see owned

properties rather than rented apartments. The Commission voted to approve

Plum Creek’s application by a vote of four to one and forwarded the application

to the Town Council with a favorable recommendation.

[11] Meanwhile, Plum Creek had hired Integra Realty Resources (“IRR”) to

perform an apartment market analysis for the proposed apartment complex. In

a March 7, 2017 letter to Plum Creek’s architect, which was in turn presented to

the Town Council, IRR stated the complex was unlikely to negatively affect the

property values of neighboring properties.

[12] The Town Council met on March 7, 2017, and considered Plum Creek’s

rezoning application, presented as a draft ordinance. Appellant Stonecipher

asked Clarksville’s Planning Director, Sharon Wilson, to address his concerns

about the project. Director Wilson stated there would be no negative impact to

neighboring property values, there would be no increases in stormwater runoff,

there would be less traffic than for a retail commercial use, and there would be

more green space than was required by the zoning ordinance.

[13] Four members of the public commented on the rezoning request, with three of

them opposing the proposed ordinance. By contrast, representatives of Plum

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 Creek and IRR spoke in favor of rezoning. The Town Council decided to table

the application and hold additional meetings.

[14] The Town held a second meeting on March 11, 2017. Plum Creek’s

representatives spoke in favor of rezoning. Four members of the public,

representing homeowners’ associations for communities near the proposed

complex, expressed opposition to the project. They complained of increased

traffic and harm to property values. Groskreutz stated the staff recommended

approving the rezoning application because the project “met or exceeded” all

requirements. Appellants’ App. Vol. II, p. 94. The Town scheduled another

meeting to vote on the proposal.

[15] The Town Council met on March 21, 2017, to consider Plum Creek’s rezoning

application for a third time. Five citizens spoke in opposition to the

application, and Plum Creek’s representatives spoke in favor of it. Prior to a

vote, the Town’s attorney read to the Council Indiana Code section 36-7-4-603
2
“as the statutory factors for the Council to consider with due regard.”

Appellants’ App. Vol. III, p. 97. The Council denied the rezoning ordinance by

a vote of three to four.

[16] The current court case began on May 1, 2017, when Plum Creek filed a civil

complaint against the Town and the four members of the Town Council who

2
The meeting minutes state that the attorney read the text of “Indiana Code 36-7-4-6.03,” Appellants’ App.
Vol. III, p. 97, but there is no such statute in the Indiana Code.

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 voted to deny rezoning. Plum Creek later amended the complaint, alleging the

Town’s decision to deny rezoning was “arbitrary, capricious, unreasonable,

illegal, and an abuse of discretion . . . .” Id. at 135. In its request for relief,

Plum Creek requested a writ of mandate to grant the rezoning petition,

declaratory judgment, and monetary damages, to be paid by the four town

council members.

[17] The parties filed cross-motions for partial summary judgment. Plum Creek

asked the trial court to issue findings of fact and conclusions thereon. The trial

court held a hearing, and the parties submitted proposed findings and

conclusions.

[18] On November 7, 2018, the trial court issued findings of fact and conclusions

thereon granting partial summary judgment in favor of Plum Creek. The court

determined, “[t]he denial of the rezoning application was arbitrary, capricious,

illegal, and in disregard of all of the facts and circumstances.” Appellants’ App.

Vol. II, p. 18. As a result, the court ordered the Town “to rezone the real estate

[at issue] . . . and otherwise permit and approve [Plum Creek’s] project.” Id.

Finally, the court noted that other issues remained to be resolved, but “there is

no just reason for delay in the entry of this judgment” and directed the trial

court clerk to enter judgment. Id. at 18-19. This appeal followed.

Discussion and Decision
[19] The Town asks this Court to reverse the trial court’s grant of partial summary

judgment, claiming “the trial court erroneously substituted its judgment for that

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 of the legislative body.” Appellants’ Br. p. 13. Orders on summary judgment

are reviewed de novo, applying the same standard as the trial court. Hughley v.

State, 15 N.E.3d 1000 (Ind. 2014). “The judgment sought shall be rendered

forthwith if the designated evidentiary matter shows that there is no genuine

issue as to any material fact and that the moving party is entitled to a judgment

as a matter of law.” Ind. Trial Rule 56(C). If the movant demonstrates the

absence of an issue of material fact and entitlement to judgment as a matter of

law, then the nonmoving party has the burden to demonstrate that there is a

genuine issue of material fact. Hughley, 15 N.E.3d 1000. All reasonable

inferences will be construed in favor of the nonmoving party. AM General LLC

v. Armour, 46 N.E.3d 436 (Ind. 2015).

[20] A grant of summary judgment is presumed valid, and the appellant must

persuade us that error occurred. Cracker Barrel Old Country Store, Inc. v. Town of

Plainfield ex rel. Plainfield Plan Comm’n, 848 N.E.2d 285 (Ind. Ct. App. 2006),

trans. denied. We may affirm a grant of summary judgment on any grounds

supported by the designated materials. Fifty Six LLC v. Metro. Dev. Comm’n of

Marion Cty., 38 N.E.3d 726 (Ind. Ct. App. 2015), trans. denied. In the context of

summary judgment, we are not bound by the trial court’s findings of fact and

conclusions thereon, but they aid our review by providing us with a statement

of reasons for the trial court’s judgment. Memory Gardens Mgmt. Corp. v. Liberty

Equity Partners, LLC, 43 N.E.3d 609 (Ind. Ct. App. 2015), trans. denied.

[21] The standards governing rezoning decisions are also relevant to our review. In

general, whether to rezone a particular piece of property is a matter left to the
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 sound discretion of the local legislative body. Bryant v. Cty. Council of Lake Cty.,

720 N.E.2d 1 (Ind. Ct. App. 1999), trans. denied. A court may reverse a

rezoning decision only if it is arbitrary or capricious, that is, the legislative body

has taken willful and unreasonable action without consideration and in

disregard of the facts or circumstances of the case. Id. A court should not

intervene in a local zoning decision as long as the decision is supported by a

rational basis. Id.

[22] A plan commission’s role in the rezoning process is merely advisory because

the local legislative body has the ultimate authority to accept or reject a

proposed rezoning ordinance. Id. A court may not inquire into the motives of

the members of a local legislative body when the body acts in its legislative

capacity. Id. Finally, a local legislative body is not required to make findings of

fact to support the exercise of legislative discretion. Bd. of Comm’rs of

Vanderburgh Cty. v. Three I Props., 787 N.E.2d 967 (Ind. Ct. App. 2003).

[23] In the current case, the parties dispute whether the Town denied Plum Creek’s

rezoning petition willfully and unreasonably, in disregard of the facts and

circumstances. When a legislative body considers a zoning proposal:

the legislative body shall pay reasonable regard to:

(1) the comprehensive plan;

(2) current conditions and the character of current structures and
uses in each district;

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 (3) the most desirable use for which the land in each district is
adapted;

(4) the conservation of property values throughout the
jurisdiction; and

(5) responsible development and growth.

Ind. Code § 36-7-4-603 (1986).

[24] The phrase “reasonable regard” is not defined by statute. In Borsuk v. Town of

St. John, 820 N.E.2d 118, 122 (Ind. 2005), the Indiana Supreme Court

explained that Indiana Code section 36-7-4-603 requires local legislative bodies

to “consider all factors and make a balanced determination.” In that case, a

landowner sued a town after the town rejected his request to rezone his

residential property as commercial. Borsuk claimed the town arbitrarily and

capriciously disregarded its own comprehensive plan for municipal

development, because the plan indicated that his property should be rezoned as

commercial at some point in the future.

[25] The Indiana Supreme Court reviewed the evidence presented at public meetings

on the petition. Members of the town council expressed concern about traffic

congestion caused by the project and possible harm to the property values of

neighboring residences. The Court concluded that the town considered all the

statutory factors, and the town’s decision had a rational basis despite apparently

contravening the town’s comprehensive plan.

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[26] Next, in City of Madison v. Demaree, 77 N.E.3d 1219 (Ind. Ct. App. 2017), a city

denied Demaree’s request to rezone his property from residential to

commercial. Demaree went to court, and the trial court ordered the city to

grant the rezoning request. On appeal, a panel of this Court determined that

the city council had received evidence about neighboring property values, the

best use of the property, traffic issues, drainage, and privacy issues. During

public hearings, residents expressed concern about the value of their properties

and traffic issues. The Court determined that the city had “received

information about, heard comment on, and weighed and discussed all of the

factors required to be considered by Indiana Code section 36-7-4-603.” Id. at

1223. As a result, the city’s decision had a rational basis, and the trial court

erred in ordering the city to grant the requested rezoning.

[27] In this case, the Town’s Plan Commission held two public hearings on Plum

Creek’s rezoning petition, and the Town’s Council held three public hearings.

The Town’s attorney advised the Council that it must consider the factors set

forth in Indiana Code section 36-7-4-603. The Plan Commission and the

Council received and reviewed reports from the Town’s Planning Department

staff, Kovert Hawkins Architects, and IRR regarding the Town’s

comprehensive plan, the conditions of properties in the area and their property

values, the highest and best use of Plum Creek’s property, and whether the

development would enhance responsible development and growth. During

public meetings, citizens and Plum Creek’s representatives discussed potential

traffic issues and property values. In addition, members of the Plan

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 Commission raised questions about traffic, the amount of vacant rental

property in town, and building materials that would be used, among other

topics. Finally, members of the Town Council asked staff to provide additional

information on these topics during one of the public meetings.

[28] Viewing the facts in the light most favorable to the nonmovant, and following

the holdings in Borsuk and Demaree, there is a dispute of material fact as to

whether the Town paid “reasonable regard” to the factors set forth in Indiana

Code section 36-7-4-603. As a result, we cannot yet conclude whether the

Town acted arbitrarily and capriciously in denying Plum Creek’s rezoning

request. The trial court erred in granting partial summary judgment to Plum
3
Creek, and we must reverse and remand.

[29] Plum Creek argues the Town ignored the factors set forth in Indiana Code

section 36-7-4-603. Plum Creek further argues the Town arbitrarily ignored the

expert opinions of the Town’s planning staff, the architects, and IRR regarding

traffic congestion and property values, choosing to instead give weight to the

opinions of non-experts who lived in neighboring properties. We have

determined that there are disputes of material fact as to whether the Town gave

reasonable regard to the statutory factors, and that determination is dispositive

of this appeal. The merits of the parties’ claims must be resolved on remand.

3
The Town also claims that the trial court erred in discounting the affidavits submitted by Town Council
members on summary judgment. We do not need to address this issue because the information discussed at
the public meetings is sufficient to establish disputes of material fact.

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 Conclusion
[30] For the reasons stated above, we reverse the judgment of the trial court and

remand for further proceedings.

[31] Reversed and remanded.

Mathias, J., and Altice, J., concur.

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