Attorneys for Appellants Amici Curiae
Michael L. Carmin Indiana Civil Liberties
Union
Andrews Harrell Mann Carmin & Parker J. Alexander
Tanford
Julia Blackwell Gelinas Bloomington,
Indiana
Nelson D. Alexander Kenneth J. Falk
Locke Reynolds LLP Indianapolis, Indiana
Indianapolis, Indiana
Indiana Association of Cities
and Towns
Attorneys for Appellee Michael J. Lewinski
Linda Runkle, Corporation Counsel Timothy E. Ochs
Patricia S. Bernens, City Attorney Tanya D.
Marsh
R. Michael Flory, Asst. City Attorney Ice Miller
Bloomington, Indiana Indianapolis, Indiana
City of West Lafayette,
Indiana
Robert L. Bauman
West Lafayette City Attorney
Pamela J. Hermes
West Lafayette Assistant City
Attorney
Gambs, Mucker & Bauman
Lafayette, Indiana
____________________________________________________________________________
__
In the
Indiana Supreme Court
_________________________________
No. 53S01-0209-CV-472
Peter Dvorak, Imram Aziz, Brian Gach, Eric Himes,
Scott Albright, and Alan Lutz,
Appellants (Defendants below),
v.
City of Bloomington,
Appellee (Plaintiff below).
________________________________
Appeal from the Monroe Circuit Court, No. 53C04-9604-OV-350
The Honorable Elizabeth N. Mann, Judge
________________________________
On Petition To Transfer from the Indiana Court of Appeals
53A01-0105-CV-188
________________________________
September 23, 2003
Dickson, Justice.
This appeal challenges the trial court's determination that a local
zoning ordinance restricting the number of unrelated adult persons per
dwelling in a single-family residential zone does not violate the
Privileges and Immunities Clause of the Indiana Constitution and was not an
ultra vires act. We affirm.
Peter Dvorak is the owner of a residential property located at 107 S.
Bryan Avenue in Bloomington. On April 23, 1996, the City filed a complaint
against Dvorak and the other defendants-appellants, tenants of Dvorak
(hereinafter collectively "Dvorak"), claiming that they violated a zoning
ordinance in the Bloomington Municipal Code which prohibits the property
from being occupied by more than four adults unrelated by blood, marriage,
or adoption.[1] The City’s complaint sought to enjoin future use of the
property inconsistent with the ordinance and to impose a fine of $2,500 per
day from the time the violation began until the time it ceased. Dvorak
filed a motion for summary judgment, claiming that the ordinance was void
as an ultra vires act and that it violated Article 1, Section 23, the Equal
Privileges and Immunities Clause, of the Indiana Constitution. After a
hearing and the submission of briefs by the parties, the trial court denied
the motion, finding that the ordinance was neither ultra vires nor
unconstitutional. At Dvorak's request, the trial court certified the
ruling for interlocutory appeal. The Court of Appeals accepted the appeal,
vacated the decision of the trial court, and remanded for further
proceedings, noting that the trial court had relieved the City of its duty
to answer an interrogatory seeking "the City's justification(s) and
rationale(s)" for the ordinance, and holding that Dvorak "should be given a
reasonable opportunity for discovery in order to determine what goals the
Ordinance was designed to promote." Dvorak v. City of Bloomington, 702
N.E.2d 1121, 1126 (Ind. Ct. App. 1998). Thereafter, in a bifurcated bench
trial on the issues of constitutionality and whether its adoption was an
ultra vires act, the trial court entered judgment upholding the ordinance.
Upon review of this judgment, the Court of Appeals reversed, finding the
zoning ordinance unconstitutional under Section 23. Dvorak v. City of
Bloomington, 768 N.E.2d 490 (Ind. Ct. App. 2002). We granted the City's
petition for transfer. Dvorak v. City of Bloomington, 783 N.E.2d 695 (Ind.
2002) (table).
Dvorak contends on appeal that the zoning ordinance violates Section
23 and that its adoption was an ultra vires act.
Article 1, § 23
When an enactment is challenged under the Indiana Constitution, it
stands before this Court "clothed with the presumption of constitutionality
until clearly overcome by a contrary showing." Boehm v. Town of St. John,
675 N.E.2d 318, 321 (Ind. 1996) (citing Adoptive Parents of M.L.V. v.
Wilkens, 598 N.E.2d 1054, 1058 (Ind. 1992); State v. Rendleman, 603 N.E.2d
1333, 1334 (Ind. 1992); Eddy v. McGinnis, 523 N.E.2d 737, 738 (Ind.
1988)). The party challenging the constitutionality of the enactment bears
the burden of proof, and all doubts are resolved against that party. Id.
The requirements of Article 1, § 23 govern not only state statutes,
but also the enactments and actions of county, municipal, and other
governmental agencies and their equivalents. See, e.g., IHSAA, Inc. v.
Carlberg, 694 N.E.2d 222, 231 (Ind. 1997); Haas v. South Bend Comm. Sch.
Corp., 259 Ind. 515, 289 N.E.2d 495 (1972); Phillips v. Officials of
Valparaiso, 233 Ind. 414, 120 N.E.2d 398 (1954); Kersey v. City of Terre
Haute, 161 Ind. 471, 68 N.E. 1027 (1903); Graffty v. City of Rushville, 107
Ind. 502, 509, 8 N.E. 609, 612 (1886); Indianapolis v. Clint's Wrecker
Serv., Inc., 440 N.E.2d 737, 744 (Ind. Ct. App. 1982). But see Bd. of
Comm'rs of the County of Howard v. Kokomo City Plan Comm'n, 263 Ind. 282,
294, 330 N.E.2d 92, 100 (1975).
The Privileges and Immunities Clause of the Indiana Constitution
states, "[t]he General Assembly shall not grant to any citizen, or class of
citizens, privileges or immunities, which, upon the same terms, shall not
equally belong to all citizens." Ind. Const. art. I, § 23. In Collins v.
Day, we analyzed the common understanding of the framers and ratifiers of
Section 23 and early cases implementing that section, concluding as
follows:
To summarize, we hold that Article I, Section 23 of the Indiana
Constitution imposes two requirements upon statutes that grant unequal
privileges or immunities to differing classes of persons. First, the
disparate treatment accorded by the legislation must be reasonably
related to inherent characteristics which distinguish the unequally
treated classes. Second, the preferential treatment must be uniformly
applicable and equally available to all persons similarly situated.
Finally, in determining whether a statute complies with or violates
Section 23, courts must exercise substantial deference to legislative
discretion.
644 N.E.2d 72, 80 (Ind. 1994).
Directing their first two claims to the first requirement in Collins,
Dvorak contends:
No inherent distinctions exist between equal numbers of related and
unrelated adults that are reasonably connected to the accomplishment
of the Ordinance's objectives of reducing trash, noise, and traffic
and maintaining core neighborhoods by reducing adult population
density.
. . . .
No inherent distinctions exist between equal numbers of related and
unrelated adults that are reasonably connected to family values or
providing healthful surroundings for family life.
Br. of Appellants at 12, 18. Dvorak's third claim involves the second
Collins requirement: "[t]he Ordinance permits some non-family groups to
live in single-family zones but denies this privilege to other similarly
situated groups." Id. at 20.
As a preliminary matter, we note that Dvorak's constitutional
arguments place considerable emphasis upon the alleged failures of the City
to establish or demonstrate that disparate treatment of different
classifications under the ordinance was reasonably connected to the City's
legislative goals. Because it is Dvorak, not the City, who asserts this
constitutional challenge, however, there is no burden upon the City to
demonstrate that the ordinance is constitutional. Rather, the burden is
entirely upon Dvorak to overcome the presumption of constitutionality and
to establish a constitutional violation. Sims v. United States Fid. &
Guar. Co., 782 N.E.2d 345, 349 (Ind. 2003); Boehm v. Town of St. John, 675
N.E.2d at 321; Collins, 644 N.E.2d at 81.
Dvorak asserts that the ordinance, Bloomington Municipal Code §
20.02.01.00, excludes from single-family residential districts households
consisting of more than three adults not related by blood, marriage or
legal adoption. Br. of Appellants at 4. The Bryan Avenue property was
"grandfathered" to permit four unrelated adults to occupy the property.
Appellants' App. at 143. Dvorak does not challenge the propriety of the
City's creation of single-family residential districts, but claims a
constitutional violation contending that the ordinance unequally treats two
different classes: households comprised of four or more related adults and
those comprised of four or more unrelated adults. Dvorak argues that the
City's purposes in enacting the ordinance are not reasonably related to any
inherent characteristics that distinguish these two classes.
This argument places a strained construction on Collins, which
requires only that the "the disparate treatment accorded by the
legislation," not the purposes of the legislation, "be reasonably related
to the inherent characteristics which distinguish the unequally treated
classes." Collins, 644 N.E.2d at 79; Boggs v. Tri-State Radiology, Inc.,
730 N.E.2d 692, 696 (Ind. 2000) (considering whether special medical
malpractice statute of limitations was reasonably related to the inherent
characteristics distinguishing medical malpractice victims from other tort
victims); McIntosh v. Melroe Co., 729 N.E.2d 973, 981 (Ind. 2000)
(deciding whether the products liability statute of repose is reasonably
related to the inherent characteristics that define the distinction);
IHSAA, Inc., 694 N.E.2d at 240 (determining whether limited athletic
eligibility is reasonably related to inherent distinctions distinguishing
transfer students from other students). While it is the treatment, not the
legislative purpose, which must be reasonably related to the inherent
distinctions between the classes, the legislative purposes may be a factor
considered in making this determination. See, e.g., Sims, 782 N.E.2d at
353-54.
We therefore find this appeal to present the following appellate
issue: whether Dvorak has demonstrated either (1) that the ordinance's
disparate treatment of two classes of persons is not reasonably related to
their distinguishing inherent characteristics, or (2) that the preferential
treatment accorded one of the classes is not uniformly applicable and
equally available to all persons similarly situated.
As to the first issue, the disparate treatment provided by the
ordinance is one of exclusion. Unlike households comprised of four or more
adults related by blood, marriage or legal adoption, similar households
comprised of four or more adults not so related are prohibited in single-
family residential zones. Thus, the issue is whether this exclusion is
reasonably related to the characteristic distinguishing these two
classes—whether the members of a household are related by blood, marriage,
or legal adoption. The answer is self-evident: limiting multiple-adult
households in single family residential zones to families, and excluding
non-families, is reasonably related to the difference between families and
non-families. To put it another way, considering whether groups are or are
not families is obviously related to determining whether to exclude them
from districts zoned for family residential use.
In addition to claiming that the Bloomington ordinance violates the
first prong of Collins, Dvorak also contends that it is invalid under the
second Collins prong: whether the preferential treatment accorded one of
the classes is uniformly applicable and equally available to all persons
similarly situated. Dvorak argues that the ordinance permits some non-
family groups, specifically four college students living together in a
house previously occupied by four other students before the ordinance was
enacted, to live in a single-family zone but denies this privilege to other
similar groups unable to locate such a "grandfathered" house, contrary to
the second prong of the Collins test.
This isolated occurrence is insubstantial and does not render the
ordinance contrary to Section 23. As we observed in Collins:
Exact exclusion and inclusion is impractical in legislation. It is
almost impossible to provide for every exceptional and imaginary case,
and a legislature ought not to be required to do so at the risk of
having its legislation declared void, even though appropriate and
proper as applied to the general subject upon which the law intended
to operate.
644 N.E.2d at 80, (quoting Cincinnati, Hamilton & Dayton Ry. Co. v.
McCullom, 183 Ind. 556, 561, 109 N.E. 206, 208 (1915) (citations omitted)).
Under the Bloomington ordinance, any persons who are related by
blood, marriage, or adoption may reside in a single dwelling in the zoning
classification, as may up to three unrelated adults. The ordinance is
uniformly applicable and equally available to all persons similarly
situated.
We conclude that the Dvorak defendants have not carried their
substantial burden to demonstrate that the challenged ordinance violates
the Privileges and Immunities Clause of the Indiana Constitution.
Ultra Vires
Dvorak alternatively argues that the Bloomington ordinance exceeds the
zoning powers delegated to cities under enabling legislation, Indiana Code
§ 36-7-4-201 et seq., and thus is an ultra vires act. Br. of Appellants at
21. Specifically, Dvorak contends that the "zoning enabling legislation
does not expressly authorize cities to make zoning distinctions between
different kinds of single families or single housekeeping units based on
legal, biological or numerical characteristics, or on familial status."
Id. Dvorak also argues that the enabling legislation "does not expressly
authorize cities to regulate users of real estate in addition to, and apart
from, regulating uses of real estate." Id. at 22 (emphasis added).
The zoning enabling legislation declares that "a unit wanting to
exercise planning and zoning powers in Indiana must do so in the manner
provided by this chapter." Ind. Code § 36-7-4-201(a). The relevant
objectives of the statute are stated in sub-section (b):
The purpose of this chapter is to encourage units to improve the
health, safety, convenience, and welfare of their citizens and to plan
for the future development of their communities to the end:
. . . .
(2) That new communities grow only with adequate public way, utility,
health, educational and recreational facilities;
. . . .
(4) That residential areas provide healthful surroundings for family
life . . .
I. C. § 36-7-4-201(b). In addition, other enabling legislation requires
that zoning ordinances must be adopted for specific purposes, including
"promoting the public health, safety, comfort, morals, convenience and
general welfare." I.C. § 36-7-4-601(c)(3). To this end, the zoning
ordinances may "regulate how real property is developed, maintained and
used," including the implementation of "standards for population density
and traffic circulation" and "any other provisions that are necessary to
implement the purposes of the zoning ordinance." I.C. § 36-7-4-
601(d)(2)(I)-(J).
With the adoption of the Indiana Home Rule Act, the legislature
"abrogated the traditional rule that local governments possessed only those
powers expressly authorized by statute." City of Gary v. Indiana Bell Tel.
Co., Inc., 732 N.E.2d 149, 153 (Ind. 2000). The Home Rule Act expressly
broadens a governmental unit's authority to include not only "[a]ll powers
granted it by statute," but also "[a]ll other powers necessary or desirable
in the conduct of its affairs even though not granted by statute." I.C. §
36-1-3-4(b). The Act explicitly declares that "[a]ny doubt as to the
existence of a power of a unit shall be resolved in favor its existence."
I.C. § 36-1-3-3(b). We have applied the Home Rule Act in construing the
zoning authority of governmental units. City of Crown Point v. Lake
County, 510 N.E.2d 684, 685-86 (Ind. 1987).
Considering the enabling legislation and Home Rule Act, we reject
Dvorak's claim that the enabling legislation does not expressly authorize
cities to make zoning distinctions between different kinds of single
housekeeping units based on familial status, or to regulate the users of
real estate rather than uses of real estate, and thus the Bloomington
ordinance is ultra vires. The legislature specifically authorized
governmental units to use zoning so that "residential areas provide
healthful surroundings for family life," I. C. § 36-7-4-201(b)(4) (emphasis
added), and in order "to promote the public health, safety, comfort,
morals, convenience and general welfare," I.C. § 36-7-4-601(c)(3). The
enactment of zoning ordinances that make distinctions based on familial
relations of the users of residential real estate is an integral component
of implementing these legislative objectives.[2] Our conclusion is further
reinforced by the Home Rule Act which extends to each governmental unit
"all other powers necessary or desirable in the conduct of its affairs."
I.C. § 36-1-3-4(b).
Conclusion
The challenged Bloomington zoning ordinance does not violate the
Privileges and Immunities Clause of the Indiana Constitution nor is it void
as an ultra vires act exceeding the City's statutory authority. We affirm
the judgment of the trial court.
Shepard, C.J., and Sullivan, Boehm, and Rucker, JJ., concur.
-----------------------
[1] The ordinance at issue is the following:
A family consists of an individual or people related by blood,
marriage, or legal adoption, and any dependent children of the
household. In the RE and RS districts and in the RT7 district except
where overlaid by a PRO 15 district, "family" also includes a group of
no more than three (3) adults, and their dependent children, living
together as a single housekeeping unit in a dwelling unit. In all
other districts, "family" also includes a group of no more than five
(5) adults and their dependent children, living together as a single
housekeeping unit.
Bloomington Municipal Code § 20.02.01.00.
[2] Our conclusion is not altered by Dvorak's claim that "zoning
distinctions based on intimate and genetic relationship, rather than the
use of real estate, are not appropriate." Br. of Appellants at 22, citing
Metro. Bd. of Zoning Appeals v. Gunn, 477 N.E.2d 289, 299 (Ind. Ct. App.
1985), and Residential Mgmt. Sys., Inc., v. Jefferson Plan Comm'n, 542
N.E.2d 227, 229 (Ind. Ct. App. 1989). In both Gunn and Residential
Management, the Court of Appeals confronted the application of residential
zoning restrictions to group homes for developmentally disabled persons
permitted under the specific provisions of Indiana Code § 16-13-21-12. To
the extent that these two cases contain the language asserted by Dvorak, it
was used solely in the context of providing "the qualities of a stable and
permanent household to the developmentally disabled." Gunn, 477 N.E.2d at
299.