Town Council of New Harmony v. Parker

ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE

R. Thomas Bodkin Robert R. Faulkner
Shellie Deffendall Kyle Leslie C. Shively
Charles L. Berger Evansville, Indiana
Evansville, Indiana

Karl L. Mulvaney ATTORNEYS FOR AMICUS CURIAE
Douglas D. Church STATE OF INDIANA
Indianapolis, IN
Jeffrey A. Modisett
Attorney General of Indiana

A. Scott Chinn
Geoffrey Slaughter
Special Counsels to
the Attorney General

IN THE

SUPREME COURT OF INDIANA

TOWN COUNCIL OF )
NEW HARMONY, INDIANA, )
)
Appellant (Defendant Below), ) Cause No. 87S01-9911-CV-673
) in the Supreme Court
v. )
) Cause No. 87A01-9808-CV-
305
SHIRLEY PARKER, ) in the Court of Appeals
)
Appellee (Plaintiff Below). )

APPEAL FROM THE WARRICK CIRCUIT COURT
The Honorable Donald G. Hendrickson, Judge
Cause No. 87C01-9608-CP-305

April 18, 2000

SHEPARD, Chief Justice.

Shirley Parker owns land that Robert Dale Owen and Richard Owen added
to the Town of New Harmony during the nineteenth century. It was
undeveloped ground on the edge of town then, and it still is. Parker
wishes to sell or develop her land, and she sued the Town seeking
installation of various utilities at the Town’s expense. The trial court
held that the absence of these utilities constituted a taking of Parker’s
land. It was not.

Facts and Procedural History

In 1871, some subdivided land called Richard Owens’ Addition to New
Harmony (“the Addition”) was platted and recorded in the Posey County
Recorder’s Office. In 1874, another subdivision called Robert Dale Owens’
Eastern Enlargement of New Harmony (“the Enlargement”) was similarly
platted. On May 10, 1882, the New Harmony Board of Trustees passed an
ordinance annexing both the Addition and the Enlargement as a part of the
town.

A hundred years later in 1982, Shirley Parker purchased parts of the
Enlargement, lots 10 through 17, and the east half of lot 18. In 1990, she
purchased lots 1 through 8 of the Addition.

On February 28, 1995, her husband Don Parker attended a Town Council
meeting and asked the Town to extend various utilities to these
properties.[1] Don Parker presented plans for developing the property,
which included placing a house trailer on at least one of the lots. During
the meeting, Parker turned around to town zoning administrator Gerald
Blaylock and said, “[I]f you give the permits then, you know, something
would have to happen.” (R. at 365.) Blaylock replied, “I can’t do that,”
(id.), believing that Parker would be unable to comply with the applicable
zoning ordinance. It required utility hook-up within two weeks of placing
a trailer on the property, and not all the utility services were available.
Precisely what Parker wished to do with the land is unclear, inasmuch as
he never sought a permit of any kind.

On March 9, 1995, attorney Charles Berger wrote the following to
Parker on the Town’s behalf:
As we understand your request as made orally by your husband, you are
requesting that the Town of New Harmony provide streets, water, sewer,
and gas to each of the sixteen (16) lots that you are developing. The
Town of New Harmony is more than happy to provide these services to
you, but we must advise you that pursuant to the laws of the State of
Indiana as contained under Title 36 at I.C. §36-9-36-2, et seq., the
Town of New Harmony will assess each of the lots at their pro rata
share for the costs of the extension of these services. The statute
for assessing the sewer services can be found at I.C. §36-9-23-29.

If you are requesting that the Town provide these services, we will
need for you [to] do so in writing, and we will then proceed with the
preliminary steps necessary to have these matters properly considered
by the Board, including the costs of obtaining preliminary cost
studies, publishing notices of plan improvements and assessments,
holding public hearings, and the conducting of said hearings. All of
the costs associated, including the hearing stage, will be assessed
against the lots on a pro rata basis of one-sixteenth (1/16) of the
total cost if this is your desire. We await your reply if you are
interested in pursuing this matter with the Town making said
improvements.

(R. at 386.) This offer was, of course, not what Parker hoped for and was
thus not implemented.

The following year, the Town received safety complaints about
vehicles running off the end of a paved street that dead-ended into the
west end of Parker’s land, (“four-wheelers and two-wheelers tearing up the
dirt and disturbing the neighbors,” (R. at 396)). In October, the Town
Board authorized placing a chain across the street at the point where the
pavement stopped.

On February 26, 1996, Parker filed a complaint for declaratory
judgment, stating that New Harmony had refused to “extend all municipal
utilities . . . at its sole expense.” (R. at 14, 43.)[2] Following a
bench trial, the court entered findings of fact and conclusions of law,
declaring that New Harmony was required to provide streets, sidewalks, and
utilities to Parker’s property, and that failure to provide these services
constituted a taking. The court also concluded that placing a chain across
the street resulted in a taking of Parker’s property.

The court ordered New Harmony to submit a plan for providing the
improvements it had ordered. New Harmony submitted a plan offering two
proposals: 1) that the Town “dis-annex” Parker’s property, or 2) that the
Town extend the requested infrastructure and assess Parker for a portion of
the costs of the improvements pursuant to Ind. Code § 36-9-36-1, the
“Barrett Law.” The court declared these proposals inadequate and appointed
appraisers to assess damages to Parker’s property, although the record does
not contain any instructions about how the damages were to be assessed.

New Harmony appealed, and the Court of Appeals affirmed. Town Council
of New Harmony v. Parker, 707 N.E.2d 1002 (Ind. Ct. App. 1999). We granted
transfer.

I. Takings Law

The Fifth Amendment says, “[N]or shall private property be taken for
public use, without just compensation.” U.S. Const. amend. V.[3] While
there can be little doubt that the framers intended that the amendment
apply only to physical acquisition or invasion of property by the national
government,[4] the Takings Clause later became incorporated into the
Fourteenth Amendment and thereby made applicable to the States. Chicago,
Burlington & Quincy R.R. Co. v. Chicago, 166 U.S. 226 (1897). Later still,
the U.S. Supreme Court declared that a taking might occur even where there
was no acquisition. Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415
(1922)(“[W]hile property may be regulated to a certain extent, if
regulation goes too far it will be recognized as a taking.”)

Still, aside from acquisition or invasion most government regulation
of property does not offend the Takings Clause. See, e.g., Herrington v.
Sonoma County, 834 F.2d 1488 (9th Cir. 1988) (disapproval of development
plans not a taking), cert. denied, 489 U.S. 1090 (1989); Major Media of the
Southeast, Inc. v. City of Raleigh, 792 F.2d 1269 (4th Cir. 1986)
(requiring billboard removal five and a half years after adoption of
ordinance not a taking), cert. denied, 479 U.S. 1102 (1987); Landmark Land
Co. v. City of Denver, 728 P.2d 1281, 1287 (Colo. 1986) (“it must be shown
that the ‘ordinance precludes use of [the] property for any reasonable
purpose”; building limitations intended to promote view of mountains not a
taking), appeal dismissed sub nom., Harsh Inv. Corp. v. City of Denver, 483
U.S. 1001 (1987).

The Supreme Court has held that the government may, consistent with
the Takings Clause, affect property values by regulation without incurring
an obligation to pay under the full scope of the State’s police power.
This may be done when the regulation proscribes “harmful or noxious” uses
of property, although the proscribed use need not rise to this level. See
Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1022 (1992).

As Justice Scalia observed in writing for the Court in Lucas, where
the state reasonably concludes that “the health, safety, morals, or general
welfare would be promoted by prohibiting particular contemplated uses of
land,” compensation need not accompany prohibition. Id. (quoting Penn
Central Transp. Co. v. City of New York, 438 U.S. 104, 125 (1978)).
Moreover, a landowner is not entitled to unlimited access to abutting
property at all points along a highway, nor does a taking occur where
ingress and egress is made more circuitous and difficult. State v. Ensley,
240 Ind. 472, 489, 164 N.E.2d 342, 350 (1960); see also Jenkins v. Board of
County Comm’rs, 698 N.E.2d 1268, 1271 (Ind. Ct. App. 1998), trans. denied.

II. The Chain Across the Street

The Town claims the trial court erred in determining a taking occurred
when the Town placed a chain across the unimproved portion of South Street,
bordering Parker’s property. (Appellant’s Br. at 23.)[5]

The record reveals that although Parker’s property is subdivided as
lots, it is functionally one inclusive piece of undeveloped land. The
property is roughly rectangular, and it is bordered by three streets, or at
least by right of way dedicated for future streets. Steam Mill Street is
actually a paved street that runs along the northern edge of Parker’s
property. South Street is just “two wheel tracks” along the southern edge.
(R. at 73, 197, 306, 320.) First, Second, and Third Streets run North to
South; they are paved or rocked until they reach Ms. Parker’s undeveloped
holding. (R. at 357.) In sum, there are no paved streets leading into
Parker’s property.

In the present case, the decision to place a chain across South
Street did not deprive Parker of access to her property, as it is
accessible by a wide variety of streets and rights of way. Parker presents
no reason why access through South Street was particularly important or how
her inconvenience in using the alternate routes was greater than that
suffered by the general public. See Young v. State, 252 Ind. 131, 134, 246
N.E.2d 377, 379 (1969), cert. denied, 396 U.S. 1038 (1970).[6]

The facts presented at the evidentiary hearing do not support the
trial court’s conclusion that placing a chain at the point where paved
South Street dead-ends into Parker’s land constituted a taking.

III. Issuing Permits

The Town next asserts that the trial court erred in deciding that a
taking occurred when the zoning administrator indicated that he could not
issue location improvements permits for Parker’s property. (Appellant’s
Br. at 26.)

The procedural posture of this issue was a bit unusual. Parker never
requested a location improvement permit from the Town, nor did she seek to
have the administrator’s decision reviewed by the Board of Zoning Appeals
(assuming the administrator’s response to Don Parker’s statement at the
Town Board meeting can be called a “decision”).[7] Instead, she filed an
action for declaratory judgment asserting that the administrator’s
“moratorium” constituted a taking without just compensation.

New Harmony argues that Parker’s lawsuit is barred because she failed
to exhaust all administrative remedies before filing an action with the
trial court.[8] In so arguing, the Town relies on Martin v. Monroe County
Plan Comm’n, 660 N.E.2d 1073 (Ind. Ct. App. 1996), trans. denied. In
Martin, the trial court dismissed plaintiffs’ petition for writ of
certiorari requesting review of a decision by the Monroe County Planning
Commission; it held that the plaintiffs had failed to exhaust their
administrative remedies by not first appealing to the Board of Zoning
Appeals. Id. at 1074. The Court of Appeals affirmed, concluding that the
plaintiffs failed to comply with the Monroe County Zoning Ordinance, which
required appeals by decisions of the Plan Commission to be presented to the
Board of Zoning Appeals before being presented for review in court. Id.
at 1076.

The Town of New Harmony is correct on this point. The law
contemplates that Parker should seek an improvement permit and, if the
application was denied, appeal the denial to the Board of Zoning Appeals,
or request a variance from the applicable zoning ordinance. See Ind. Code
Ann. § 36-7-4-918.1 (West 1997).[9] Indiana boards of zoning appeals are
entrusted with the powers to hear such matters, and they are in the best
position to “determine on appeal from a decision of an administrative
official where it is argued that the official erroneously interpreted the
ordinance.” Habig v. Harker, 447 N.E.2d 1114, 1116 (Ind. Ct. App. 1983).
If Parker was dissatisfied with the decision by the Board of Zoning
Appeals, she could then seek judicial review of its ruling. See Ind. Code
Ann. § 36-7-4-1003 (West 1997); Shipshewana Corp. v. LaGrange County, 656
N.E.2d 812, 812-13 (Ind. 1995).

It is well-established that, if an administrative remedy is available,
it must be pursued before a claimant is allowed access to the courts. See,
e.g., Austin Lakes Joint Venture v. Avon Util., Inc., 648 N.E.2d 641 (Ind.
1995). Failure to exhaust administrative remedies deprives the trial court
of subject matter jurisdiction. Greenbrier Hills, Inc. v. Boes, 473 N.E.2d
1040, 1042 (Ind. Ct. App. 1985).

Parker argues that she should not have been required to apply for a
permit or appeal to the Board of Zoning Appeals because doing so would have
been futile. She reasons, “It is undisputed that the moratorium would have
ma[d]e application for an improvement permit a useless exercise since the
application would be dead on arrival.” (Appellee’s Br. at 20.)

Courts have said that exhaustion of administrative remedies may be
excused where the remedy would be futile. See Family & Social Serv. v.
Methodist Hosp., 669 N.E.2d 186, 189 (Ind. Ct. App. 1996). This case
illustrates well, however, that the exhaustion requirement is much more
than a procedural hoop and that it should not be dispensed with lightly on
grounds of “futility.”

First, when the landowner has never actually sought a permit, neither
the local administrator nor the town board nor the reviewing courts can say
with certainty what would have been approved or disapproved. Neither the
record of the Town Board meeting where Don Parker appeared nor the record
of the trial inform us exactly what Mr. and Mrs. Parker want to do and on
what lots they want to do it.[10]

Second, it is not plain at all in this case that pursuing relief with
the Board of Zoning Appeals would have necessarily been futile. It is
apparent that the various lots owned by Mrs. Parker benefited from a
variety of utilities. Some lots had storm sewers. (R. at 118.) Others
had water service. (Id.) Some others had electric service nearby. (R. at
282.) Some lots had none of these.

Testimony by zoning administrator Blaylock was to the effect that he
had never said he would refuse a permit on all of the Parker land.[11] He
said that if it turned out that some parcels had what was needed for a
particular lot that he would issue the permit. (R. at 362-63.) The only
evidence in the record suggested that New Harmony’s zoning administrator
was pretty accommodating:
I listen and I’m very willing to take it to get a variance. If what
the citizen is requesting does not meet the ordinance, I give them
guidance the best of my knowledge how they can get around it if they
need to get a variance, you know. And it’s not up to me to approve
the variance. I have nothing to do with that.

(R. at 354.)

The vitality of this requirement was made plain in Penn Central, 438
U.S. 104, a landmark decision in the law of takings. In Penn Central,
developers were denied the permits to construct a fifty-story office tower
above the historic Grand Central Terminal. The Supreme Court upheld New
York City’s Landmarks Law and held that an unconstitutional taking had not
occurred. The Court also noted:

While the Commission’s actions in denying applications to construct an
office building in excess of 50 stories above the Terminal may
indicate that it will refuse to issue a certificate of appropriateness
for any comparably sized structure, nothing the Commission has said or
done suggests an intention to prohibit any construction above the
Terminal . . . . Since appellants have not sought approval for the
construction of a smaller structure, we do not know that appellants
will be denied any use of any portion of the airspace above the
Terminal.

Id. at 136-37 (citations omitted).

This Court applied the reasoning of Penn Central on this point in
Town of Beverly Shores v. Bagnell, 590 N.E.2d 1059, 1064 (Ind. 1992). We
do not know whether New Harmony would have denied Parker any use of her
property since Parker did not seek approval for her plans. See id.

Based on the foregoing, we conclude that Parker was required to
exhaust her administrative remedies before filing an action with the trial
court. Thus, the trial court lacked subject matter jurisdiction to decide
whether refusal to issue permits constituted a taking.

IV. Failure to Provide Municipal Utilities

Finally, New Harmony asserts that the trial court erred in concluding
that the Town was required to provide improvements to Parker’s property and
in determining that the Town’s plan for providing these services was
inadequate.

In issuing its judgment, the trial court made the following finding of
fact: “Parker, prior to filing this action, made demand on the Town of New
Harmony to fulfill its obligation to provide . . . services required under
Indiana’s statutes and the Town of New Harmony refused to do so and
continues to refuse to provide said services.” (R. at 119.)

The evidence does not support this finding. Certainly, the Town did
offer to provide utilities to Parker, as attorney Berger’s letter to her on
the Town’s behalf demonstrated. It made this offer, however, with the
stipulation that Parker would be responsible for a portion of the cost of
providing these services. The trial court concluded that the Town had an
obligation to install these utilities on Parker’s land at the expense of
other taxpayers.

Parker asserts that the Town’s refusal to provide services at the
public expense “deprived her of economically viable use of her property.”
(Appellee’s Br. at 18.) This language is from the law of takings. While
the trial court did not specifically label the Town’s failure to provide
Parker with an adequate plan for services a “taking,” it appointed
appraisers to assess damages under the eminent domain statutes, indicating
that it believed a taking occurred. See Schuh v. State, 251 Ind. 403, 408,
241 N.E.2d 362, 364 (1968).

There are two kinds of takings. One involves seizing private land for
public use, like building a fire station. The other sort of taking occurs
not through acquisition of title but through regulation. So-called
“regulatory takings” come in many forms. They may consist, for example, of
regulations that compel a property owner to suffer a physical invasion of
his property, or they may consist of regulations that deny all economically
beneficial or productive use of the land. Board of Zoning Appeals v.
Leisz, 702 N.E.2d 1026, 1028-29 (Ind. 1998).

The Supreme Court has described the Takings Clause as “designed to bar
Government from forcing some people alone to bear public burdens which, in
all fairness and justice, should be borne by the public as a whole.” Penn
Central, 438 U.S. at 123. Deciding whether a taking occurred is an ad hoc,
factual inquiry focusing on several factors: the economic impact of the
regulation, its interference with reasonable investment-backed
expectations, and the character of the governmental action. Kaiser Aetna
v. United States, 444 U.S. 164, 175 (1979); Penn Central, 438 U.S. at 124.

Parker had no reasonable investment-backed expectation that must be
recognized or compensated under the Fifth Amendment. Property owners are
charged with knowledge of ordinances that affect their property. Leisz,
702 N.E.2d at 1030. When Parker purchased her property, she was deemed
aware of the ordinance and she testified that she knew that the lots were
not equipped with certain utilities.[12] The only reasonable expectation
was that the Town may, or may not, allow her to develop the property.

The character of the governmental action points in the same
direction, as it takes nothing away from Parker. See id. at 1031. Parker
contends that the Town has an obligation to provide municipal utilities to
her lots at no cost to her. This is not the case. Certain services, such
as fire and police protection, have traditionally been provided to all
citizens of a municipality, financed through property taxes. Certain other
services, such as water, sewer, gas, electric, and roads, were
traditionally thought of as proprietary and are still largely provided
through assessments to the landowners of the parcels benefiting from the
installation of utilities.

For example, with respect to sewer service, Ind. Code § 36-9-2-16
provides: “A unit may regulate the furnishing of the service of
collecting, processing, and disposing of waste substances and domestic or
sanitary sewage. This includes the power to fix the price to be charged
for that service.” A municipality may also charge a fee for connections to
the sewer based on the pro rata cost of constructing a local or lateral
sewer sufficient to serve the property. See Ind. Code Ann. § 36-9-23-29
(West 1997).

The same is true of new streets and roads. Under Ind. Code § 36-9-2-
5, a municipal body has exclusive control over, and regulation of, its
streets. See Town of Syracuse v. Abbs, 694 N.E.2d 284, 286 (Ind. Ct. App.
1998); Cason v. City of Lebanon, 153 Ind. 567, 572, 55 N.E. 768, 770
(1899). With this control comes the power to assess property owners for
improvements upon or maintenance of streets. See Ind. Code Ann. § 8-23-6-5
(West Supp. 1999) (“This chapter does not annul, limit, or abridge the
right of a city or town, either at its own expense or at the expense of
property owners subject to assessment, to improve the sidewalks and curbs
along a street . . . , to construct sewers and drains, or to construct or
maintain a part of the roadway of the street not improved or maintained by
the [Department of Transportation].”) (emphasis added).

Regarding water, Ind. Code § 36-9-2-14 states that a unit may regulate
and furnish water to the public and establish, maintain, and operate
waterworks. With this power, we have long held, comes the power to assess
the properties benefiting from such service. See City of Angola v.
Croxton, 185 Ind. 250, 112 N.E. 385 (1916).

The reasoning behind the power of assessment was explained in Baldwin
v. Moroney, 173 Ind. 574, 579, 91 N.E. 3, 5-6 (1910) (internal quotations
omitted) where we stated:
Every one who acquires an interest in land takes it subject to the
right of the sovereign to lay general taxes upon it and to impose upon
it the burden of paying the expenses of public improvements which
confer upon the land a special benefit. . . . Whoever holds an
interest in the land profits by the appurtenance, and ought, in
justice, to be subjected to the lien which secures the assessment.

Here, the Town responded appropriately to Parker’s request for
installation of utilities, by offering to provide Parker with various
pieces of beneficial infrastructure under the condition that she assume
responsibility for some of the cost of the improvements pursuant to the
Barrett Law, Ind. Code § 36-9-36-1.[13] This plan proposed to bring
appropriate utilities to Parker’s property without requiring users to pay
the bill.

We conclude that the trial court erred in finding the Town’s proposed
improvement plan inadequate and in appointing appraisers to assess damages.

Conclusion

The trial court erred in determining that Parker’s property had been
taken when the Town placed a chain across a street bordering her property
and when the Town’s zoning administrator said he could not issue
improvement permits for Parker’s property. The Town did not “take”
Parker’s land when it asked her to pay a share of the cost of extending
additional utilities.

Accordingly, we reverse the trial court.

Dickson, Sullivan, Boehm, and Rucker, JJ., concur.
-----------------------
[1] Although the lots at issue were technically owned by Shirley Parker,
her husband Don Parker, a contractor, played an active role in the
proceedings involving this property. It was Mr. Parker who requested that
municipal utilities and the like be provided to the property in response to
an interest regarding development in the area. (R. at 375, 400, 401-02.)
[2] Parker filed an amended complaint on August 20, 1996. (R. at 47.)
[3] Not long ago, we examined certain aspects of an analogous clause in the
Indiana Constitution. Bayh v. Sonnenburg, 573 N.E.2d 398 (Ind. 1991).
[4] See Note, The Origins and Original Significance of the Just
Compensation Clause of the Fifth Amendment, 94 Yale L.J. 694 (1985).
[5] New Harmony initially asserts that Parker’s claims were barred by
laches. (Appellant’s Br. at 14.) The equitable doctrine of laches
consists of three elements: inexcusable delay in asserting a right,
implied waiver from knowing acquiescence in existing conditions, and
circumstances resulting in prejudice to the adverse party. In re Geisler,
614 N.E.2d 939, 940 (Ind. 1993). The mere passage of time is insufficient
to establish laches, rather, it must be shown that the delay was
unreasonable. Habig v. Bruning, 613 N.E.2d 61, 65 (Ind. Ct. App. 1993),
trans. denied.

Here, the Town claims that there was unreasonable delay because
Parker purchased her property in 1982 and 1990, yet failed to bring an
action against the Town until 1996. The record reveals, however, that in
1975 the Town began pursuing the issue of providing municipal services to
Parker’s lots and began seeking funds to that effect. (R. at 274-83.)
Between 1975 and the present time, the Town has extended water services to
some of the lots, (R. at 223, 361, 413-14), and constructed storm sewers
for other lots, (R. at 287). It appears that up until the time Parker
filed her complaint, there was still a dispute about whether the Town was
going to provide additional services. (R. at 353-54.) Therefore, Parker’s
delay in filing a complaint was not unreasonable, and the facts do not
suggest that she acquiesced in the Town’s failure to provide services.
Moreover, the Town does not demonstrate prejudice. Parker’s claim is not
barred by laches.
[6] Moreover, Parker does not dispute on any grounds that the Town had
important reasons for blocking access from South Street. According to
Ralph Hardy, a city councilman, members of the community were complaining
that cars and “four-wheelers” were driving onto Parker’s property where
South Street became unpaved and were “tearing up the dirt and disturbing
the neighbors.” (R. at 396.)
[7] Parker has insisted that Blaylock’s position that he could not issue a
permit for development on land that did not meet the legal requirements for
development was a “moratorium.” We think it is largely akin to what might
happen if a lawyer asked the county clerk whether he would accept a lawsuit
for filing without payment of the legal filing fee and the clerk answered,
“I can’t do that.”
[8] Although the Town previously failed to assert lack of subject matter
jurisdiction, this claim cannot be waived. Where lack of subject matter
jurisdiction in the original tribunal is apparent from the record, it is
the duty of the reviewing court to raise and determine the issue sua
sponte. Board of Comm’rs v. Jewett, 184 Ind. 63, 67, 110 N.E. 553, 555
(1915).
[9] This Section states:

A board of zoning appeals shall hear and determine appeals from and
review:

1) any order, requirement, decision, or determination made by an
administrative official, hearing officer, or staff member under
the zoning ordinance;

2) any order, requirement, decision, or determination made by an
administrative board or other body except a plan commission in
relation to the enforcement of the zoning ordinance; . . . .

Ind. Code Ann. § 36-7-4-918.1 (West 1997).

[10] The nature of Parker’s plans was open to doubt even at trial, where
the following colloquy occurred during the cross-examination of Don Parker
about possible placement of a trailer on Parker’s property:

Q. Do you remember which lot it was that this discussion about the
trailer park took place?

A. No I don’t.

Mr. Shively: Objection. He didn’t – there wasn’t a discussion
about a trailer park.

Mr. Bodkin: Sorry. I’ll withdraw that.

Mr. Shively: There was a discussion about one unit.

Q. Do you recall which lot it was the discussion about the house
trailer took place?

A. No, I do not.

(R. at 359.)

[11] “I didn’t say all sixteen lots. That’s what they took it to say.”
(R. at 353.)
[12] At trial, the following colloquy occurred:

Q. When you acquired these parcels, Mrs. Parker, did you go look at
them before you paid the money to get the deeds?
A. I certainly did.
Q. And you were aware that at the time that you acquired lots eleven
and seventeen and half of ten in 1982 that there were no paved
streets there.
A. Right.
Q. No sidewalks.
A. Right.
Q. No water.
A. Right.
Q. No gas.
A. Right.
Q. No electric.
A. Right.
Q. No street lights.
A. Right. When I purchased –
Q. Yes.
A. May I answer?
Q. When you purchased the lots.
A. When I purchased the lots there was also two more lots that had a
house on it, and I bought it for the house and the lots.
Q. I see. All right. That would’ve been – what street was the house
on?
A. That house was on Steam Mill.
Q. I see. And Steam Mill is a paved street –
A. Right.
Q. – that has all municipal facilities there.
A. Uh-huh.
Q. And when you acquired lots one through eight in 1990 –
A. Right.
Q. – you went and looked at the ground.
A. Sure.
Q. And you were aware at the time you bought the lots that there was
no municipal facilities available to those lots.
A. Right.

(R. at 227-29.)
[13] The “Barrett Law,” originally enacted in 1889, provides the statutory
process by which a municipality may provide or require public improvements.
Ind. Code Ann. § 36-9-36-1, - 67 (West 1997). Concerning the Barrett Law,
this Court has stated:

It was the purpose, spirit, and language of the [Barrett Law] to
enable the city to require improvements, . . . to dictate the
character of the improvements; to contract for the improvements; to
enforce the payment of benefits by the property owners, to aid the
property-owner in deferring such payments by issuing the bonds of the
city, from the proceeds sales of which to pay the contractor, and from
the annual payments of the property owner upon his assessments to meet
the maturing bonds.

Porter v. City of Tipton, 141 Ind. 347, 350, 40 N.E. 802, 803 (1895).

This statute covers the following improvements by a municipality:
sidewalks, curbs, streets, alleys, paved public places, lighting, and a
water main extension for a municipality that owns and operates a water
utility. Ind. Code Ann. § 36-9-36-2(b) (West 1997).