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.
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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
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“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.
Court of Appeals of Indiana | Memorandum Decision 18A-PL-2857 | May 10, 2019 Page 13 of 13
Town of Clarksville, Aaron Stonecipher, Paul Fetter, Jennifer Voignier, and John Gilkey v. Plum Creek Crossing Apartments, LLC (mem. dec.)
Combined Opinion