Attorneys for Appellant Attorney for Appellees
Byron D. Knight Richard K. Helm
Elizabeth A. Knight Warsaw, Indiana
Schererville, Indiana
________________________________________________________________________
In the
Indiana Supreme Court
_________________________________
No. 25S03-0311-CV-492
Fulton County Advisory plan commission,
Appellant (Defendant below),
v.
Gregory L. Groninger and Annette K. Groninger,
Appellees (Plaintiff below).
_________________________________
Appeal from the Fulton Circuit Court,
No. 25 C01-0110-CP-295
The Honorable Douglas B. Morton, Judge
_________________________________
On Petition To Transfer from the Indiana Court of Appeals, No. 25A03-0301-
CV-22 _________________________________
June 22, 2004
Sullivan, Justice.
The Fulton County Plan Commission required the applicants for approval
of a new subdivision to modify the location of the roadway entrance to
reduce impaired visibility. The trial court and Court of Appeals reversed
the Plan Commission on grounds that the Commission’s “Vision Clearance
Standards” were not sufficiently precise to meet the notice requirements of
applicable law. We find that the Standards provided the applicants with
the notice they were due because the Standards were sufficiently precise
when they advised applicants that approval of proposed subdivision
entrances would be contingent upon the county zoning administrator finding
that the entrance would not create a visual impairment.
Background
Article 11.4, § k, of the Fulton County Zoning Ordinance authorizes
the Fulton County Advisory Plan Commission to approve or reject subdivision
plats. Gregory and Annette Groninger submitted a primary plat application
to the Plan Commission seeking approval to construct the “Rolling Acres
Estates” subdivision on some hilly real estate that they owned.
The proposed subdivision included a roadway entrance onto a highway.
The combination of hilly terrain and the roadway entrance implicated the
following provisions of Article 5.13 of the Zoning Ordinance:
The intent of Vision Clearance Standards are [sic] to provide
for a safe vehicular and pedestrian transportation system. The
visibility at intersections, driveways, curb cuts, and entrances are
particularly important for the safe movement of vehicles and
pedestrians.
The following Vision Clearance Standards apply to all
intersections, drive[s], curb cuts, and entrances.
A. No curb cut or drive shall be permitted when:
(a) A minimum of 225 feet from the crest of a hill where the
slope on either side of the crest is 6% or greater, and the speed
limit is 45 MPH or greater.
(b) A minimum of 175 feet from the crest of a hill where the
slope on either side of the crest is 6% or greater, or the visibility
is determined to be impaired by the Zoning Administrator, and the
speed limit is 45 MPH or less.
(c) The visibility to or from the desired location is
determined to be impaired by the Zoning Administrator.
(Appellant’s App. pp. 323-24.)
On July 9, 2001, the Plan Commission held a public hearing to
determine if the Groningers’ application met the requirements of the Zoning
Ordinance and of the Fulton County Subdivision Control Ordinance.[1]
During the hearing, members of the Plan Commission expressed concern over
whether placing an entrance at the proposed location would create vision
clearance hazards. The issue was tabled until the next meeting in order to
investigate whether the roadway entrance met the Vision Clearance Standards
contained in Article 5.13 of the Zoning Ordinance.
The Groningers’ plat application was discussed again at an August 13,
2001, meeting of the Plan Commission. During the hearing, Casi Cramer, the
Zoning Administrator, reported that she and Fulton County Surveyor Don
Towne had investigated the proposed entrance. Both Cramer and Towne
acknowledged that they were not licensed surveyors. Towne took the
position that there was a vision clearance hazard because the entrance was
only 180 feet from the crest of the hill. Cramer also said that he had
contacted an independent engineering firm, Wightman Petrie, Inc., for a
preliminary consultation. Wightman Petrie’s initial findings were that the
proposed entrance did not comply with the 225 feet requirement. Wightman
Petrie’s professional opinion was that the proposed entrance created a
vision clearance hazard.
The Plan Commission voted to approve the primary plat application
subject to the roadway entrance meeting the standards of the Zoning and
Subdivision Control Ordinances.[2]
Pursuant to the Subdivision Control Ordinance, the Groningers then
submitted the primary plat application to the Plan Commission for
signatures.[3] The plat application had not changed the location of the
roadway entrance. The Plan Commission met again on September 10, 2001, and
discussed whether the Groningers’ primary plat application could be signed.
The Plan Commission did not sign the plat at that time but decided to hire
Wightman Petrie to examine more fully the entrance to determine if it was
in compliance with the Vision Clearance Standards.
On September 25, 2001, Wightman Petrie submitted an engineering report
regarding the proposed entrance. The report stated that the proposed
entrance was located more than 225 feet from the crest of the hill.
However, the report further stated that the proposed entrance did not
comply with the American Association of State Highway and Transportation
Officials (“AASHTO”) Design Standards and concluded that the proposed
entrance would create hazardous driving conditions.[4]
On September 26, 2001, the Zoning Administrator sent a letter to the
Groningers stating that their primary plat application did not comply with
the vision clearance standards of the Zoning Ordinance. The letter also
stated that the Groningers must submit a newly engineered plat to the Plan
Commission for signatures.
On October 19, 2001, the Groningers submitted a modified primary plat
that changed the location of the roadway entrance. The modified plat met
the vision clearance standards and was approved. Instead of beginning
construction on the subdivision, the Groningers filed a complaint on
October 25, 2001, in the Fulton Circuit Court. They requested that the
trial court mandate the Plan Commission to approve the original primary
plat application. The trial court granted the Groningers a summary
judgment, concluding that their original proposal had complied with the
requirements of the Zoning and Subdivision Control Ordinances and that they
had received no notice that a higher standard might be contemplated. The
court ordered the Plan Commission to take the necessary steps for approval
of the original plat.
The Court of Appeals affirmed the trial court’s grant of summary
judgment. Fulton County Advisory Plan Comm’n v. Groninger, 790 N.E.2d 541,
549 (Ind. Ct. App. 2003). The court concluded that part (c) of the Vision
Clearance Standards was invalid because it was not a sufficiently definite
standard and that the Groningers had complied with the remaining parts of
the Vision Clearance Standards. Id. We granted transfer, 2003 Ind. LEXIS
924 (Ind. Nov. 7, 2003), and now reverse the trial court.
Discussion
This court reviews, with tragic frequency, cases involving automobile
accidents in which claims are lodged of improper attention to safety in
highway design. For that reason, the purpose of the Vision Clearance
Standards and the Plan Commission’s concern over impaired visibility from a
subdivision entrance is readily apparent to us.
Ind. Code § 36-7-4-702(b) (2002) provides that a subdivision control
ordinance “must specify the standards by which the commission determines
whether a plat qualifies for primary approval.” The Groningers argue, and
the trial court and Court of Appeals found, that Article 5.13 of the Zoning
Ordinance did not define the vision clearance standards for the approval of
plat applications with sufficient precision to meet the requirements of
Ind. Code § 36-7-4-702(b).
The determination of this issue turns upon whether the language and
requirements of the ordinance can be understood with “reasonable
certainty.” Carpenter v. Whitley County Plan Commission, 367 N.E.2d 1156,
1161 (Ind. Ct. App. 1977) (quoting Fred Geiger & Sons v. Schmitt, 116 N.E.
50, 51 (Ind. 1917)). We have previously stated that a valid ordinance must
be “concrete” and “precise, definite, and certain in expression.” Knutson
v. State ex rel Seberger, 157 N.E.2d 469,471 (Ind. 1959) reh’g denied, 160
N.E.2d 200; Kosciusko County Area Plan Comm’n v. 1st Source Bank, 804
N.E.2d 1194 (Ind. Ct. App. 2004); Tippecanoe County Area Plan Commission v.
Sheffield Developers, 394 N.E.2d 176 (Ind. Ct. App. 1979). Formulated
slightly differently, a plan commission is required to exercise its
authority in a standardized and clearly defined manner so as to enable both
the plat applicant and the municipality to act with assurance and authority
regarding the development of the area in question. Knutson, 157 N.E.2d at
471.
The Groningers contend that they were entitled to have their original
proposal approved because it satisfied the 225 and 175 feet requirements of
the Zoning Ordinance as specified by subsections (a) and (b). They
maintain that if subsection (c) is read in isolation, it cannot be found to
be sufficiently precise to comply with Ind. Code § 36-7-4-702(b). To
support their argument, they cite comments made by the Zoning Administrator
during a public hearing where she said, “I want to know if the entrance is
225 feet from the crest of the hill or not . . . that’s all I want to know
. . . if it is then it’s not a problem . . . because it clears the vision
clearance standard.” (Appellant’s App. at 340-41). The Groningers further
contend that the Plan Commission’s decision to apply the AASHTO standards
in determining whether the proposed entrance created a vision clearance
hazard failed to put them on notice of what was actually required for plat
approval. By merely reading subsection (c), they say, no applicant would
have any way of knowing that an entrance is required to meet not only the
requirements of subsections (a) and (b), but also the higher, more specific
standards set out by AASHTO.
We find the Groningers’ reading of the ordinance contrary to its plain
language and its characterization of the Plan Commission’s action contrary
to law and precedent.
For emphasis, we repeat the Vision Clearance Standards:
No curb cut or drive shall be permitted when:
(a) A minimum of 225 feet from the crest of a hill where the
slope on either side of the crest is 6% or greater, and the speed
limit is 45 MPH or greater.
(b) A minimum of 175 feet from the crest of a hill where the
slope on either side of the crest is 6% or greater, or the visibility
is determined to be impaired by the Zoning Administrator, and the
speed limit is 45 MPH or less.
(c) The visibility to or from the desired location is
determined to be impaired by the Zoning Administrator.
Subsections (a) and (b) do not, contrary to the Groningers’ argument,
set forth fixed and immutable standards. Rather, they set forth minimum
standards – the Plan Commission will not approve an application that does
not meet these minimums. But the import of the use of the word “minimum”
in both subsections (a) and (b) is that 225 feet or 175 feet may well not
be enough if visibility is nevertheless impaired because of the grade or
shape of the road, foliage considerations, and the like. Because the plain
language of subsections (a) and (b) – again, the use of the word “minimum”
– puts a reader on notice that more may very well be required in order to
receive approval for an entrance, the Groningers are incorrect in asserting
that their plat was entitled to be approved simply because it met the
225/175 feet benchmarks.
Although it is true that in order to be valid, an ordinance must be
“precise, definite, and certain in expression,” it is equally true that the
courts of this state will not construe an ordinance so as to defeat its
purposes “if it is sufficiently definite to be understood with reasonable
certainty.” Burrell v. Lake County Plan Comm’n, 624 N.E.2d 526, 529 (Ind.
Ct. App. 1993), transfer denied (quoting Carpenter, 367 N.E.2d at 1161).
In this case, the purpose of Article 5.13 is to provide for a “safe
vehicular and pedestrian transportation system.” What is important is that
the “visibility at intersections, driveways, curb cuts, and entrances” be
safe for the movement of vehicles and pedestrians. That being the case,
subsection (c) (as the Groningers themselves contend) cannot and should not
be read in isolation from subsections (a) and (b). Subsection (c)
reiterates the overarching purpose of Article 5.13, the prevention of
visual impairment, and conditions subsections (a) and (b) upon it. In this
case, an applicant would understand the Ordinance with “reasonable
certainty” to require an entrance to be built to satisfy the purpose of
avoiding visual impairment, not just the minimums of subsections (a) and
(b).
Indeed, the Court of Appeals has previously upheld zoning ordinances
that set forth similar requirements designed to protect the safety and
health of potential residents without listing specific numerical
requirements as being sufficiently concrete, precise and definite under
Ind. Code § 36-7-4-702(b).
In Burrell, the plat applicants appealed the denial of their
application, challenging Lake County subdivision ordinance regulations on
grounds that a section requiring denial of a plat “where a proposed
subdivision would adversely affect the health, safety, or general welfare
of the County” was vague and uncertain. 624 N.E.2d at 528. The section
provided in part:
No land shall be subdivided which is unsuitable for subdivision
by a reason of flooding, collection of ground water, bad drainage,
adverse earth or rock formation or topography, or any feature likely
to be harmful to the health, safety, or welfare of the future
residents of the subdivision or of the community. Such lands shall
not be considered for subdivision until such time as the conditions
causing the unsuitability are corrected.
Id. at 530. Relying on Tippecanoe County Area Plan Comm’n v. Sheffield
Developers, Inc. 394 N.E.2d at 185, the court found the ordinance provided
ample notice to the plat applicants of the conditions, “flooding, bad
drainage, and risks of leaching and biological contamination due to the
presence of adverse soils, i.e., adverse ‘earth,’” that would be evaluated
by the planning commission. Burrell, 624 N.E.2d at 530. Nearly identical
ordinances were upheld as sufficiently precise in both Brant v. Custom
Design Contractors Corp., 677 N.E.2d 92, 99 (Ind. Ct. App. 1997),[5] and
Wolff v. Mooresville Plan Comm’n, 754 N.E.2d 589, 593 (Ind. Ct. App.
2001).[6]
This issue arose again in regards to an ordinance regulating access to
a county road in Kosciusko County Area Plan Commission v. 1st Source Bank.
There the ordinance listed several factors that the planning commission
would consider when deciding whether to approve or deny a plat application:
(1) whether streets were of sufficient width and proper grade; (2) whether
streets were so located as to accommodate the probable volume of traffic
thereon; (3) whether streets provided access of fire fighting equipment to
buildings; and (4) whether the streets conformed to the County
Transportation Plan, which also included a list of objectives. 804 N.E.2d
at 1194. The court held that this list was sufficiently precise to give
fair warning to the public as to what the planning commission would
consider in approving or denying a plat application.
In our case, similar to the ordinances in Burrell, Brant, Wolff, and
Kosciusko County, Article 5.13 placed the Groningers on notice of a
condition that would be evaluated by the Plan Commission: whether the
proposed entrance created a visual impairment.
We find it necessary to give particular attention to the Groninger’s
challenge to the Plan Commission’s decision to apply the AASHTO standards
in determining whether the proposed entrance would be safe. They suggest
that the testimony of the Zoning Administrator, Casi Cramer, at the
administrative hearing held on July 9, 2001, led them to believe that the
determination of whether the entrance way would be visually impaired would
be based upon whether the design satisfied the numerical “minimums” set
forth in subsections (a) and (b). The Groningers argue that under Equicor
Development Inc. v. Westfield-Washington Township Plan Commission, 758
N.E.2d 34 (Ind. 2001), the Plan Commission forfeited the right to use the
AASHTO standards as opposed to the “minimum” numerical requirements set
forth in subsections (a) and (b) by not specifically introducing the AASHTO
standards in previous hearings. They assert that the Plan Commission must
use the exact measurements set forth in subsections (a) and (b) of Article
5.13 or notify them at the earliest opportunity of their choice to use
other standards.
In Equicor, we held that the Westfield-Washington Plan Commission was
estopped from citing a deficiency in parking spaces as a reason for denying
a plat application. Equicor, 758 N.E.2d 34, 40. Equicor submitted its
original application in February, 1998. Three more hearings were held over
a period of three months before the plan commission denied the application
over concerns about adequate parking space. Equicor argued that the plan
commission in the previous hearings offered suggestions but that they had
been unrelated to parking. Equicor, in reliance on those earlier hearings
and suggestions, made changes to the design. We found that the plan
commission had had “ample opportunity to point out any deficiency in the
designation of parking, and Equicor reasonably relied on the absence of any
parking issue in processing its proposal.” Equicor, 758 N.E.2d at 40.
This case is not Equicor, which we view as having been highly unusual.
The Groningers were not – and do not allege that they were – unaware that
visual impairment was at issue in the plat application from the very first
hearing. At no time did the Plan Commission rule that the satisfaction of
the “minimum” standards set out in subsections (a) and (b) solved the
vision clearance issue. Other than their refusal to alter the original
design, the Groningers show no reliance on the statements made by Casi
Cramer at the August 13, 2001, hearing. The Groningers were notified on
September 10, 2001, that the Plan Commission would hire Wightman Petrie to
determine if the entrance way was visually impaired. On September 25,
2001, the engineering report indicated that while the entrance way met the
“minimums” set forth in Article 5.13, it failed to meet the AASHTO
standards and it created a hazardous driving condition. Id. at 399. On
September 26, 2001, the Groningers were notified that their primary plat
application was denied for failure to satisfy the vision clearance
standards of Article 5.13.
Indeed, the record suggests that AASHTO design standards are uniformly
recognized national safety standards. We are of the view that the Plan
Commission’s decision to utilize the AASHTO standards furthered the very
objectivity that the Groningers say they advocate.
Conclusion
The Vision Clearance Standards contained in Article 5.13 of the Fulton
County Zoning Ordinance are sufficiently “concrete” and “precise” to
provide notice to plat applicants of the standards that are used to
determine whether a roadway entrance creates a visual impairment.
Furthermore, Fulton County is not estopped from denying the Groningers’
plat application.
Having previously granted transfer, we now reverse the judgment of the
trial court and remand to the Fulton County Advisory Plan Commission for
final review of the Groningers’ proposed primary plat application
consistent with this opinion.
Shepard, C.J., Dickson, Boehm, and Rucker, JJ., concur.
-----------------------
[1] All primary plat applications submitted to the Plan Commission must
comply with both the Fulton County Zoning Ordinance and the Subdivision
Control Ordinance. Article 4.3 of the Fulton County Zoning Ordinance.
[2] § 3.8(A) of the Subdivision Control Ordinance permits the Plan
Commission to either approve, approve with conditions, continue, or deny
the primary plat following a public hearing on the matter.
[3] § 3.8(D) of the Subdivision Control Ordinance requires that within
three months after the plat has been approved, the applicant must submit
the primary plat and related materials for signature by two officers of the
Plan Commission.
[4] Wightman Petrie also recommended that the Zoning Ordinance be “amended
to comply with AASHTO Design Standards.”
[5] The ordinance in Brant read:
No land shall be subdivided for residential use unless adequate access
to the land over approved streets or thoroughfares exist or will be
provided by the subdivider, or if such land is considered by the
commission to be unsuitable for such use by reason of flooding or
improper drainage, objectionable earth or rock formation topography,
or any other feature harmful to the health and safety of potential
residents in the community as a whole.
Brant, 677 N.E.2d at 98-99.
[6] The ordinance in Wolff read:
No land shall be subdivided for residential use unless adequate access
to the land over improved streets or thoroughfares exists or will be
provided by the subdivider, or if such land is considered by the
commission to be unsuitable for such use by reason of commission to be
unsuitable for such use by reason of flooding or improper drainage,
objectionable earth and rock formation, topography, or any other
feature harmful to the health and safety of possible residents and the
community as a whole.
Wolff, 754 N.E.2d at 593.