Metropolitan Board of Zoning Appeals Division III of Marion County, Indiana v. Traders Point Association of Neighborhoods, Kenneth F. Zahora (TRS), Cherie L. Zahora (TRS)

FILED
Aug 11 2017, 7:45 am

CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court

ATTORNEYS FOR APPELLANTS ATTORNEY FOR APPELLEES

Jeffrey M. Bellamy S. Gregory Zubek
Stephen R. Donham Whitham, Hebenstreit & Zubek,
Thrasher Buschmann & Voelkel, P.C. LLP
Indianapolis, Indiana Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

Metropolitan Board of Zoning August 11, 2017
Appeals Division III of Marion Court of Appeals Case No.
County, Indiana, and Three Mile 49A04-1703-PL-554
Properties, Inc., (s/k/a Three Appeal from the Marion Superior
Mile Properties–Gurpreet Court
Singh), The Honorable John F. Hanley,
Appellants-Respondents, Judge
Trial Court Cause No.
v. 49D11-1602-PL-5766

Traders Point Association of
Neighborhoods, Kenneth F.
Zahora (TRS), Cherie L. Zahora
(TRS), Michael L. Wigginton,
Linda McElwrath, Traders
Pointe Neighborhood
Association, Inc., Marco A.
Caccamo, and Metropolitan
School District of Pike
Township,

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 Appellees-Petitioners.

Bradford, Judge.

Case Summary
[1] On March 9, 2015, Gurpreet Singh, in his position as a principal and the

registered agent of Appellant-Respondent Three Mile Properties, Inc. (“Three

Mile”), filed an application for an Improvement Location Permit (“ILP”).

Specifically, Singh sought permission to build a gas station and convenience

store on certain real estate located in the City of Indianapolis (“the City”). The

real estate was zoned “C-3” which allows for such businesses. Upon review of

Singh’s March 9, 2015 application (“the Application”), the City’s Department

of Code Enforcement (“DCE”) issued ILP number 15-00384, granting

permission for the proposed development. On February 16, 2016, Appellant-

Respondent the Metropolitan Board of Zoning Appeals (“the BZA”) upheld the

issuance of ILP 15-00384.

[2] Petitioners-Appellees Traders Point Association of Neighborhoods, Kenneth F.

Zahora (TRS), Cherie L. Zahora (TRS), Michael L. Wigginton, Linda

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 McElwrath, Traders Pointe Neighborhood Association, Inc., Marco A.

Caccamo, and Metropolitan School District of Pike Township (collectively,

“the Appellees”) appealed the BZA’s decision to the trial court. On February

28, 2017, the trial court reversed the decision of the BZA. Three Mile appealed,

arguing that the trial court erred in reversing the decision of the BZA. Because

we agree with Three Mile, we reverse the judgment of the trial court and

reinstate the decision of the BZA.

Facts and Procedural History
[3] Three Mile was incorporated in October of 2014 by Gurpreet and Shiv Pal

Singh. Gurpreet and Shiv Pal serve as principals of Three Mile and Gurpreet

serves as Three Mile’s registered agent.

[4] On November 19, 2014, Three Mile entered into a land contract (“the Land

Contract”) to purchase a parcel “commonly known as 8562 Lafayette Road,

Indianapolis, Indiana 46278” (“the Property”) from Linda Ryan.1 Appellants’

App. Vol. II, pp. 79-90. Both Gurpeet and Shiv Pal signed the contract on

behalf of Three Mile. The Land Contract was subsequently recorded in the

Marion County Recorder’s Office on November 26, 2014.

1
Linda’s daughter, Holly Bzezinski, submitted a letter dated December 7, 2015, to the BZA in which she
indicated that Linda had “recently passed away,” that she was Linda’s heir, and that “neither [Holly’s]
mother nor her heirs considered themselves owners of the [P]roperty after [the Land Contract] was executed
and [the] payments made.” Appellants’ App. Vol. II, p. 113.

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[5] On March 9, 2015, the Application for an ILP was filed. The Application listed

Gurpreet as the “Owner” and was signed by Michael Cope. 2 Appellants’ App.

Vol. II, p. 41. Various other related applications list either Gurpreet or Three

Mile as the owner of the Property.

[6] On April 20, 2015, while the Application was pending, the Indianapolis City-

County Council (“the City Council”) approved an ordinance that would

prohibit new permits for being issued for gasoline service stations or

convenience markets in C-3 zoning districts pending an amendment to the

Marion County zoning code or June 1, 2016, whichever was earlier (“the

Moratorium Ordinance”). The Moratorium Ordinance was approved and

signed by the Mayor of Indianapolis on April 29, 2015.

[7] The Application was subsequently approved and on June 23, 2015, ILP number

15-00384, which granted permission for the proposed development, was issued

to “Three Mile Property–Gurpreet Singh.” Appellants’ App. Vol. II, p. 112.

The Appellees then appealed the issuance of the ILP to the BZA. Following its

review of the matter, the BZA issued the following:

BASED ON THE EVIDENCE SUBMITTED THE
PETITIONER FAILED TO MEET ITS BURDEN OF PROOF
TO SHOW THAT IMPROVEMENT LOCATION PERMIT
NO. ILP 15-00384 WAS ISSUED IN ERROR. The subject site
is zoned C-3, a zoning designation which at the time [the]
application was made for ILP 15-000384, permitted a gas station

2
It appears that Cope was an architect working on the project with Gurpreet and Three Mile.

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 and convenience store by right, without the need for any variance
of use. The proposed gas station and convenience store meets all
development standards of the Commercial Zoning Ordinance for
C-3 zoned property. ILP 15-00384 was properly issued.

DECISION

IT IS THEREFORE the decision of this body that this
ADMINISTRATIVE APPEAL petition is DENIED.

Adopted this 16th day of February, 2016.

Appellants’ App. Vol. II, p. 120.

[8] The Appellees next appealed the BZA’s decision to the trial court. The trial

court acknowledged the Land Contract but nonetheless concluded that “[a]t the

time the ILP was filed in March 2015, neither Gurpreet Singh nor Michael

Cope was the owner or lessee of the [P]roperty at 8562 Lafayette Road.”

Appellants’ App. Vol. II, p. 18. The trial court further concluded that

Application was not complete and that the BZA “committed a fundamental

error in law in denying the appeal of the grant of the ILP in this case because

neither [Gurpreet] nor Cope was the owner of the Property.” Appellants’ App.

Vol. II, p. 18. Because the Application was not complete when filed, the trial

court also concluded that the Moratorium Ordinance applied to the

Application. Given these conclusions, the trial court ordered the following:

IT IS THEREFORE ORDERED ADJUDGED AND
DECREED that:

1. The decision of the BZA denying the appeal of the grant of
ILP l5-00384 to Three Mile Properties – Gurpreet Singh

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 (a) was arbitrary, capricious, an abuse of discretion
and otherwise not in accordance with law including
the ordinance requiring that an application for an
improvement location permit be made by the owner
(or owner’s authorized agent) because

(i) Gurpreet Singh was not the owner;
and/or
(ii) Three Mile Properties, Inc. is not
Gurpreet Singh; and/or
(iii) Three Mile Properties, Inc. is not
an owner within the definition of
“owner” as set out by the applicable
legislative body, the City County
Council; and

(b) was contrary to ordinance and unsupported by
substantial evidence for the following reasons:

(i) Gurpreet Singh was not the owner;
and/or
(ii) Three Mile Properties, Inc. is not
Gurpreet Singh; and/or
(iii) Three Mile Properties, Inc. is not
an owner within the definition of
“owner” as set out by the applicable
legislative body, the City County
Council.

2. The action of the BZA is set aside, this cause is remanded to
the BZA for action consistent with the Findings and Conclusions
set out herein and the BZA is ordered to reverse, rescind and/or
otherwise vacate the grant of ILP l5-00384 to Three Mile
Properties – Gurpreet Singh.

Appellants’ App. Vol. II, pp. 19-20. This appeal follows.

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 Discussion and Decision
[9] Three Mile contends that the trial court erred in overturning the determination

of the BZA. Specifically, Three Mile argues that the trial court erroneously

determined that the Application was not complete when filed on March 9,

2015. Three Mile also argues that the trial court erroneously determined that

the Moratorium Ordinance, which was approved by the City Council on April

20, 2015 and signed by the Mayor on April 29, 2015, applied to the

Application. We agree with Three Mile.

I. Standard of Review
[10] “This court and the trial court are bound by the same standards when reviewing

the decision of a board of zoning appeals.” Town of Munster Bd. of Zoning

Appeals v. Abrinko, 905 N.E.2d 488, 491 (Ind. Ct. App. 2009). Indiana Code

section 36-7-4-1614(d) provides that a reviewing court should grant relief

only if the court determines that a person seeking judicial relief
has been prejudiced by a zoning decision that is:

(1) arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law;
(2) contrary to constitutional right, power, privilege,
or immunity;
(3) in excess of statutory jurisdiction, authority or
limitations, or short of statutory right;
(4) without observance of procedure required by law;
or
(5) unsupported by substantial evidence.

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 “The burden of demonstrating the invalidity of a zoning decision is on the party

to the judicial review proceeding asserting invalidity.” Ind. Code § 36-7-4-

1614(a).

[11] In reviewing an administrative decision, a trial court may not try
the facts de novo or substitute its own judgment for that of the
agency. [S & S Enterprises, Inc. v. Marion Cty. Bd. of Zoning Appeals,
788 N.E.2d 485, 490 (Ind. Ct. App. 2003), trans. denied].
“Neither the trial court nor the appellate court may reweigh the
evidence or reassess the credibility of witnesses.” Id. Reviewing
courts must accept the facts as found by the zoning board. Id.

Hoosier Outdoor Advert. Corp. v. RBL Mgmt., Inc., 844 N.E.2d 157, 163 (Ind. Ct.

App. 2006), trans. denied. Questions of law generally decided by an agency de

novo. Id. (citing Huffman v. Office of Envtl. Adjudication, 811 N.E.2d 806, 809

(Ind. 2004)).

However, an agency’s construction of its own ordinance is
entitled to deference. See Story Bed & Breakfast, LLP v. Brown
County Area Plan Comm’n, 819 N.E.2d 55, 66 (Ind. 2004). The
ordinary rules of statutory construction apply in interpreting the
language of a zoning ordinance. Id. at 65. Under those rules, the
express language of the ordinance controls our interpretation and
our goal is to determine, give effect to, and implement the intent
of the enacting body. See Shaffer v. State, 795 N.E.2d 1072, 1076
(Ind. Ct. App. 2003). When an ordinance is subject to different
interpretations, the interpretation chosen by the administrative
agency charged with the duty of enforcing the ordinance is
entitled to great weight, unless that interpretation is inconsistent
with the ordinance itself. See id. If a court is faced with two
reasonable interpretations of an ordinance, one of which is
supplied by an administrative agency charged with enforcing the
ordinance, the court should defer to the agency. See id. Once a

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 court determines that an administrative agency’s interpretation is
reasonable, it should end its analysis and not address the
reasonableness of the other party’s interpretation. Id. at 1076-77.
Terminating the analysis reinforces the policies of acknowledging
the expertise of agencies empowered to interpret and enforce
ordinances and increasing public reliance on agency
interpretations. Id. at 1077.

Id. (footnote omitted).

II. Ownership Issue
[12] With regard to ownership of property purchased via land contract, the Indiana

Supreme Court has held as follows:

Under a typical conditional land contract, the vendor retains
legal title until the total contract price is paid by the vendee.
Payments are generally made in periodic installments. Legal title
does not vest in the vendee until the contract terms are satisfied,
but equitable title vests in the vendee at the time the contract is
consummated. When the parties enter into the contract, all
incidents of ownership accrue to the vendee. Thompson v. Norton
(1860), 14 Ind. 187. The vendee assumes the risk of loss and is
the recipient of all appreciation in value. Thompson, supra. The
vendee, as equitable owner, is responsible for taxes. Stark v.
Kreyling (1934), 207 Ind. 128, 188 N.E. 680. The vendee has a
sufficient interest in land so that upon sale of that interest, he
holds a vendor’s lien. Baldwin v. Siddons (1910), 46 Ind. App.
313, 90 N.E. 1055, 92 N.E. 349.

This Court has held, consistent with the above notions of
equitable ownership, that a land contract, once consummated
constitutes a present sale and purchase. The vendor “has, in
effect, exchanged his property for the unconditional obligation of
the vendee, the performance of which is secured by the retention

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 of the legal title.” Stark v. Kreyling, supra, 207 Ind. at 135, 188
N.E. at 682. The Court, in effect, views a conditional land
contract as a sale with a security interest in the form of legal title
reserved by the vendor. Conceptually, therefore, the retention of
the title by the vendor is the same as reserving a lien or mortgage.
Realistically, vendor-vendee should be viewed as mortgagee-
mortgagor. To conceive of the relationship in different terms is
to pay homage to form over substance. See Principles of Equity,
Clark, 4th edition, Sec. 9, p. 23.

Skendzel v. Marshall, 261 Ind. 226, 234, 301 N.E.2d 641, 646 (1973). Stated

differently, “the vendee in possession for all practical purposes becomes the

owner of the property with all the rights of an owner in the operation of it,

subject only of course to the terms of the contract[.] Id. at 235, 301 N.E.2d at

646 (internal quotation and citations omitted).

[13] With regard to ownership of the Property, the relevant facts demonstrate that

Ryan entered into the Land Contract with Three Mile on November 19, 2014.

Gurpreet is an incorporator, a principal, and the registered agent of Three Mile.

Gurpreet signed the Land Contract on behalf of Three Mile. The Land

Contract was subsequently recorded in the Marion County Recorder’s office.

[14] On March 9, 2015, the Application for an ILP was filed. The Application listed

Gurpreet as the “Owner.” Appellants’ App. Vol. II, p. 41. The Application was

subsequently approved and on June 23, 2015, an ILP was issued to “Three Mile

Property–Gurpreet Singh.” Appellants’ App. Vol. II, p. 112. The Appellees

appealed the issuance of the ILP to the BZA. Upon review, the BZA upheld

the issuance of the ILP.

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[15] The Appellees appealed the BZA’s decision to the trial court. The trial court

concluded that “[a]t the time the ILP was filed in March 2015, neither Gurpreet

Singh nor Michael Cope was the owner or lessee of the [P]roperty at 8562

Lafayette Road.” Appellants’ App. Vol. II, p. 18. As such, the trial court

further concluded that Application was not complete and that the BZA

“committed a fundamental error in law in denying the appeal of the grant of the

ILP in this case because neither [Gurpreet] nor Cope was the owner of the

Property.” Appellants’ App. Vol. II, p. 18.

[16] To conclude that Three Mile was not the owner of the Property would, in

effect, “pay homage to form over substance.” See Skendzel, 261 Ind. at 234, 301

N.E.2d at 646. The facts set forth above clearly established Three Mile as the

equitable owner of the Property. Gurpreet, as the registered agent of Three

Mile, was therefore properly listed on the Application. Further, given the

issuance of the ILP to “Three Mile Property–Gurpreet Singh,” it is clear that

the agency recognized these facts and considered Three Mile as the equitable

owner of the Property and applicant for the permit. As such, following the

reasoning set forth by the Indiana Supreme Court in Skendzel, we conclude that

the trial court erred in concluding that the Application was not complete

because it was not filed by or on behalf of the owner of the property.

III. Applicability of the Moratorium Ordinance
[17] Having concluded that the Application was complete when filed on March 9,

2015, we must next consider whether the Moratorium Ordinance applies to the

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 Application. With respect to applications for land use or construction

approvals and permits from a local government board or agency, Indiana Code

section 36-7-4-1109(c) provides as follows:

If a person files a complete application as required by the
effective ordinances or rules of a local unit of government or a
local governmental agency for a permit with the appropriate local
governmental agency, the granting of the permit, and the granting
of any secondary, additional, or related permits or approvals
required from the same local governmental agency with respect
to the general subject matter of the application for the first
permit, are governed for at least three (3) years after the person
applies for the permit by the statutes, ordinances, rules, development
standards, and regulations in effect and applicable to the property when
the application is filed, even if before the issuance of the permit or while
the permit approval process is pending, or before the issuance of any
secondary, additional, or related permits or approvals or while
the secondary, additional, or related permit or approval process is
pending, the statutes, ordinances, rules, development standards, or
regulations governing the granting of the permit or approval are changed
by the general assembly or the applicable local legislative body or
regulatory body, regardless of whether such changes in the statutes,
ordinances, rules, development standards, or regulations are part
of a zoning ordinance, a subdivision control ordinance, or a
statute, ordinance, or regulation that is based on the general
police powers of the local unit of government.

(Emphases added).

[18] It is undisputed that the Application was filed on March 9, 2015. It is also

undisputed that the Moratorium Ordinance was not approved by the City

Council until April 20, 2015, or signed by the Mayor on April 29, 2015. Given

the unambiguous provisions of Indiana Code section 36-7-4-1109(c) coupled

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 with the fact that the Application was filed before the Moratorium Ordinance

went into effect, the Moratorium Ordinance did not apply to the Application.

We therefore conclude that the trial court erred in finding otherwise.

Conclusion
[19] In sum, we conclude that the trial court erred in reversing the decision of the

BZA. We therefore reverse the decision of the trial court and reinstate the

February 16, 2016 decision of the BZA.

May, J., and Barnes, J., concur.

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