Equicor Development, Inc. v. Westfield-Washington Township Plan Commission

ATTORNEYS FOR APPELLANTS

James P. Moloy
Joseph D. Calderon
Indianapolis, Indiana
ATTORNEY FOR APPELLEES

Brian J. Zaiger
Noblesville, Indiana
__________________________________________________________________


                                   IN THE



                          SUPREME COURT OF INDIANA

__________________________________________________________________

EQUICOR DEVELOPMENT, INC.,   )
An Indiana Corporation,                 )
THOMAS E. GOINS, and              )
STEPHEN ROUDEBUSH,                )
                                  )     Indiana Supreme Court
      Appellants (Petitioners Below),   )     Cause No. 29S02-0105-CV-239
                                  )
            v.                    )     Indiana Court of Appeals
                                  )     Cause No. 29A02-9909-CV-661
THE WESTFIELD-WASHINGTON     )
TOWNSHIP PLAN COMMISSION,    )
                                  )
      Appellee (Respondent Below).      )
__________________________________________________________________

                   APPEAL FROM THE HAMILTON SUPERIOR COURT
                     The Honorable Jerry M. Barr, Judge
                         Cause No. 29D02-9806-MI-349
__________________________________________________________________


                          ON PETITION FOR TRANSFER

__________________________________________________________________

                              November 15, 2001

BOEHM, Justice.
      We hold that in the absence of a claimed violation of due  process  or
equal protection rights, or their state  counterparts,  it  is  improper  to
inquire  into  the  motive  behind  a  zoning  commission’s  denial   of   a
subdivider’s proposed primary plat.  However,  under  the  circumstances  of
this case, the commission is  estopped  from  raising  the  deficiencies  it
cited to deny the proposal.
                      Factual and Procedural Background
      In February 1998, Equicor submitted a primary plat to  the  Westfield-
Washington Township Plan Commission for the development of 27.2 acres  as  a
cluster housing development.  The Technical Advisory Committee reviewed  the
plat and concluded that no changes were necessary.   Accordingly,  the  Plan
Commission’s staff determined that the Commission should approve  the  plat.
At that point, the Plan Commission submitted a proposal to the Town  Council
to suspend  Section  110,  the  provision  in  the  Local  Zoning  Ordinance
governing cluster housing.  The Commission also published notice of a  March
23, 1998 public hearing on  Equicor’s  proposed  plat.   On  March  23,  the
Commission approved the suspension of Section  110,  but  Equicor’s  primary
plat was grandfathered and Equicor was allowed to proceed.
      At the hearing on Equicor’s proposal,  both  Plan  Commission  members
and owners of the neighboring property expressed concern about  the  density
of the proposed development.  The Plan Commission referred the plat  to  the
Subdivision Committee for further review.  Three weeks later, on  April  13,
the Town Council took the final action necessary  to  suspend  Section  110.
On April 15, a subcommittee of the Subdivision  Committee  recommended  that
Equicor add additional green space  and  make  some  minor  changes  to  the
streets, and Equicor undertook to do both.  The plat  was  returned  to  the
full Subdivision Committee for final review and was again reviewed on  April
29.  On May 26, the Plan Commission voted to deny approval of the plat.
      The Commission members who were polled after the vote cited a  failure
to comply with the requirement of Section 110 that the  applicant  designate
two “on-site” and one-half “off-site” parking spaces, excluding garages  and
carports, for each one to three bedroom unit.   In  submitting  its  primary
plat for approval, Equicor did not list the number and location of  all  the
parking spaces.  Equicor contended, however, that the plat  showed  two  on-
site spaces in the form of two spaces in  the  driveway  of  each  unit  and
curbside parking adequate for the one-half space off-site.
      Equicor filed a Petition for Writ of Certiorari in  the  trial  court,
contending  that  the  Commission’s  denial  was   “arbitrary,   capricious,
illegal, and contrary to law.”  The trial court  affirmed  the  decision  of
the  Plan  Commission,  concluding  that  the  decision  was  supported   by
substantial evidence establishing that the denial  was  based  on  Equicor’s
failure to designate the number and  location  of  parking  spaces  for  the
development.  The Court of Appeals agreed with the trial  court  that  there
was substantial evidence supporting the  Commission’s  denial  of  Equicor’s
plat,  but  nevertheless  reversed.   Equicor  Dev.,  Inc.,  v.   Westfield-
Washington Township Plan Comm’n, 732 N.E.2d 215 (Ind. Ct. App.  2000).   The
Court  of  Appeals  found  the  Commission’s  decision  was  “arbitrary  and
capricious” because the Commission’s true motive was a concern  for  density
and  because  similar  plats  had  been  approved  without   requiring   the
designation of parking spaces.  Id. at 220-24.  The  Court  of  Appeals  did
not address Equicor’s argument that the Plan Commission,  having  failed  to
notify it of the alleged parking deficiency, was estopped from  denying  its
permit on that basis.
                             Standard of Review
      Indiana Code section 4-21.5-5-14 prescribes the scope of court  review
of an administrative decision.  That  section  provides  that  a  court  may
provide relief only if the agency action 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.  See also  Dep’t  of  Natural  Res.  v.
Ind.  Coal  Council,  Inc.,  542  N.E.2d  1000,  1007  (Ind.  1989)   (“[A]n
administrative act is arbitrary and capricious only where it is willful  and
unreasonable, without consideration  and  in  disregard  of  the  facts  and
circumstances in the  case,  or  without  some  basis  which  would  lead  a
reasonable and honest person to the same conclusion.”).   Section  4-21.5-5-
14(a) further provides that “[t]he burden of  demonstrating  the  invalidity
of the agency action is on the  party  .  .  .  asserting  invalidity.”   In
reviewing an administrative decision, a court is not to  try  the  facts  de
novo or substitute its own judgment for that of the agency.  Ind. Code §  4-
21.5-5-11 (1998); accord Ind. Dep’t of Envtl. Mgmt. v.  Conard,  614  N.E.2d
916, 919 (Ind. 1993).  This statutory standard  mirrors  the  standard  long
followed by this Court.  See Town of Beverly Shores v. Bagnall,  590  N.E.2d
1059, 1061 (Ind. 1992).
      On appeal, to the extent the trial court’s factual findings were based
on a paper record, this Court  conducts  its  own  de  novo  review  of  the
record.  Cf. Houser v. State, 678 N.E.2d 95, 98 (Ind. 1997)  (“Because  both
the appellate and trial courts are reviewing the paper record  submitted  to
the magistrate, there is no reason for appellate  courts  to  defer  to  the
trial court’s finding that a  substantial  basis  existed  for  issuing  the
warrant.”).  If the trial court holds an  evidentiary  hearing,  this  Court
defers to the trial court to the extent its  factual  findings  derive  from
the hearing.  GKN Co. v. Magness, 744 N.E.2d 397, 401  (Ind.  2001).   Here,
the trial court held an evidentiary hearing which focused primarily  on  the
Commission’s motives for  rejecting  Equicor’s  proposed  primary  plat  and
heard similar arguments on a motion to correct  error.   There  was  also  a
record of minutes of the Commission’s meetings and  legal  briefs  filed  to
the court.  To the extent findings turn solely on this paper record,  review
is de novo.  Id.
          I.  Inquiry into “Motive” and Comparison with Other Cases
      The Court of Appeals concluded  that  the  Commission’s  decision  was
“‘arbitrary and capricious’ . . . in light of the  true  motive  behind  the
Commission’s decision [and]  their  discriminatory  treatment  of  Equicor’s
proposed primary plat as compared to similarly  situated  plats.”   Equicor,
732 N.E.2d at 223.  Chief Judge Sharpnack dissented, concluding that it  was
improper for the majority to find arbitrary action  based  on  inconsistency
with prior Commission decisions.  Id. at 224.
      An inquiry into the motive of an agency action may be proper  in  some
circumstances,  notably  where  there  is  a  claimed  violation  of  rights
protected by the Fourteenth Amendment.  Thus, in the  context  of  a  zoning
administrative action, “[a] violation of substantive due process  rights  is
demonstrated if the government’s actions were not rationally  related  to  a
legitimate state interest or were motivated by bias, bad faith, or  improper
motive.”  John E. Long, Inc. v. Borough of Ringwood, 61  F.  Supp.  2d  273,
280 (D.N.J. 1998).  “[A] plaintiff must show that the  state  administrative
agency has been guilty of ‘arbitrary and capricious action’  in  the  strict
sense,  meaning  ‘that  there  is  no  rational  basis  for  the   .   .   .
[administrative] decision.’”  Brody v. City of  Mason,  250  F.3d  432,  438
(6th Cir. 2001) (holding city’s grant  of  permit  to  operate  business  in
residential neighborhood not arbitrary and capricious);  accord  Greenbriar,
LTD. v. City of Alabaster,  881  F.2d  1570,  1577  (11th  Cir.  1989).   An
improper motive may also be demonstrated by  evidence  of  extreme  partisan
political considerations,  personal  conflicts  of  interest  and  gain,  or
invidious discriminatory intent.  Long, 61 F. Supp.2d at 283.
      In some sense, if an  agency’s  unstated  reason  for  its  action  is
incorrect as a matter of law, the action  may  be  viewed  as  based  on  an
improper  motive.   We  think  the  “improper  motive”  required  to  permit
examination of the agency’s reasons  is  more  restrictive  than  that.   In
significant part this conclusion is driven by practical considerations.   If
motivation is open to question in every case where the agency is claimed  to
have cited an incorrect factor for its decision, it raises the  prospect  of
discovery of each member of the agency as a  routine  step  toward  judicial
review of administrative action.  This in turn escalates the potential  cost
and  delay  by  an  order  of  magnitude.   The  Administrative  Orders  and
Procedures Act[1] was designed to preclude this sort of obstacle  to  agency
action.  Cf. Thompson v. Med. Licensing Bd., 180 Ind.  App.  333,  337,  389
N.E.2d 43, 46 (1979) (“By enacting the Administrative Adjudication Act  (the
Act)  in  1947  the  Indiana  legislature  recognized  the  basic  need  for
unfettered action by administrative agencies operating within the sphere  of
their authority.”).  The common thread of the cases examining  motive  is  a
contention that the decision was based on considerations personal to  either
the applicant (e.g., race or gender discrimination) or personal  to  one  or
more members of the agency (e.g., bribery  or  political  retaliation).   We
conclude that a bona fide  claim  of  violation  of  due  process  or  equal
protection rights, or their state law counterparts, is  required  before  an
inquiry into the subjective motivation of the agency may be launched.
      Equicor plausibly contends that opposition to cluster housing was  the
real reason for rejecting its plat.  But Equicor does  not  claim  that  the
agency was motivated by malice or improper outside influence.   Rather,  the
contention is  that  parking  designation  is  pretextual,  and  plats  with
similar parking designations have been approved  in  the  past.   Therefore,
Equicor argues, the action is “arbitrary and  capricious.”   In  support  of
this view, Equicor cites the Commission’s support for suspension of  Section
110 as evidence that the “real” reason  for  disapproval  was  hostility  to
cluster housing.  This contention boils down to  a  claim  that  the  agency
cited a proper factor but was “really” motivated  by  a  consideration  that
could constitutionally have been written into the  ordinance  but  was  not.
This is a claim of error,  but  not  of  denial  of  due  process  or  equal
protection.  In the absence of a claim that the decision was the product  of
constitutional violation, the test of arbitrary  and  capricious  action  is
whether there is no reasonable basis for  the  action.   Ind.  Civil  Rights
Comm’n v. Delaware County Circuit Court, 668 N.E.2d 1219, 1221 (Ind.  1996).
 We think  this  is  an  objective  standard,  and  does  not  turn  on  the
subjective motivation of the agency.   In  this  case,  the  Commission  was
objectively correct in pointing to the failure of the plat to designate  the
parking spaces with specificity even if, as Equicor  contends,  anyone  with
common sense could figure out that there were indeed the required number  of
spaces.  As a result, even if failure  to  designate  parking  was  not  the
“real” reason for disapproval, the Commission’s motivation is irrelevant  as
a matter of law.
      We also believe past approval of “similarly situated” plats  does  not
establish that the Commission’s decision was reversible  as  “arbitrary  and
capricious.”  If the basis for denial is a failure to meet a requirement  of
the governing ordinance, albeit one previously  enforced  laxly  or  not  at
all, the inquiry is not whether there are prior inconsistent decisions,  but
rather  whether  there  is  substantial  evidence  supporting  the  agency’s
decision.  As Chief Judge  Sharpnack  pointed  out,  if  the  administrative
agency is, in effect, estopped by its prior decisions, it becomes unable  to
correct its errors  in  subsequent  determinations.   In  short,  past  weak
enforcement does not invalidate an otherwise valid requirement, and  inquiry
into the Commission’s subjective motivation is improper unless  there  is  a
claimed denial of due process or equal protection.
         II.  Duty to Inform Applicant of Deficiencies and Estoppel
      Equicor argues that the Plan Commission’s decision  must  be  reversed
because the Commission failed to raise the claimed deficiency at  its  first
known opportunity and gave Equicor no  opportunity  to  correct  it.   Given
this failure, Equicor contends that the Commission is estopped from  denying
approval.  Although the Commission asserts that Equicor did not  raise  this
argument in the trial court and  has  therefore  waived  it  on  appeal,  it
appears that Equicor raised this contention at  least  twice  in  the  trial
court.
      As a general matter, government entities are not subject to  equitable
estoppel.  State ex rel. Agan v. Hendricks Superior  Court,  250  Ind.  675,
678, 235 N.E.2d 458, 460 (1968).  However,  this  Court  has  held  that  in
certain  situations  application  of  estoppel  of  government  entities  is
appropriate.  See id.; see  also  Cablevision  of  Chicago  v.  Colby  Cable
Corp., 417 N.E.2d 348, 356 (Ind. Ct.  App.  1981);  Tippecanoe  County  Area
Plan Comm’n v. Sheffield Town Developers, Inc., 181 Ind. App. 586,  599-600,
394 N.E.2d 176, 185 (1979), trans. denied.  Specifically,  estoppel  may  be
appropriate where the party asserting estoppel has detrimentally  relied  on
the governmental entity’s affirmative assertion  or  on  its  silence  where
there was a duty to speak.  See Hendricks, 250 Ind. at 678,  235  N.E.2d  at
460 (applying estoppel to the State where the  State  failed  to  raise  its
objections in prior proceedings); Sheffield, 181 Ind. App. at  599-600,  394
N.E.2d at 185 (holding that estoppel was applicable where the County  had  a
duty to speak and did not, and developer relied on the County’s  silence  to
its detriment); cf. Ind. Dep’t of Envtl. Mgt. v.  Conard,  614  N.E.2d  916,
921 (Ind.  1993)  (denying  estoppel  in  the  absence  of  any  detrimental
reliance on statements made by the government agency); City of  Crown  Point
v. Lake County, 510 N.E.2d 684, 688 (Ind. 1987) (same).
      Although the Plan Commission suggested other changes in the  plat,  it
was silent as to any parking issue.  In response  to  the  suggestions  that
were made, Equicor added green space and made minor changes to the  streets,
but made no changes in the  apparently  acceptable  parking.   Equicor  thus
relied on the Plan Commission’s silence  by  proceeding  in  the  reasonable
belief that the plat would be approved and failing to make  changes  in  the
easily correctable flaws in the parking designation.
      We are dealing here with a  formal  defect—failure  to  designate  the
spaces.  There is no claim that the project  is  substantively  flawed,  and
the Commission does not assert that the project in  fact  has  less  parking
than required.  As Equicor points out, the  plat  itself  reveals  driveways
(“on-site”)  and  curbside  spaces  (“off-site”)  that  are  apparently   in
compliance with the requirement of two on-site and one-half off-site  spaces
per unit.  Raising a formal  defect  such  as  failure  to  designate  these
visible, if undesignated, spaces at the  last  moment  permits  agencies  to
fumble endlessly with proposals  that  are  entirely  lawful.   Under  these
circumstances, the Plan Commission’s failure to object to  the  undesignated
spaces resulted in Equicor’s detrimental reliance  thereon  and,  therefore,
estoppel is appropriate in this case.  See Middleton Motors  v.  Ind.  Dep’t
of State Revenue, 269 Ind. 282, 286, 380 N.E.2d 79, 81-82 (1978)  (DeBruler,
J., dissenting).
      In Sheffield, the Court of Appeals relied on our conclusion in Knutson
v. State ex rel. Seberger, 239 Ind. 656,  662-64,  157  N.E.2d  469,  472-73
(1959), that once a town board has determined that a plat complies with  the
statutory  requirements,  review  is  a  ministerial  act  and  approval  is
mandatory.  See also 83 Am. Jur. 2d Zoning and Planning  §  556,  at  445-46
(“[W]here  the  applicant  has  met  the  statutory  and  local   regulatory
standards, approval of the plat is a ministerial act, and  it  is  arbitrary
as  a  matter  of  law  to  deny  approval  of  a  plat  that  meets   those
standards.”).  This holding has been reaffirmed on several occasions by  the
Court of Appeals.  See Hickory Hills Dev. Co. v. Coffman, 699  N.E.2d  1214,
1216 (Ind. Ct. App. 1998), trans. denied[2]; Dosmann v.  Area  Plan  Comm’n,
160 Ind. App. 605, 312 N.E.2d 880,  884  (1974);  Suburban  Homes  Corp.  v.
Anderson, 147 Ind. App. 419, 261 N.E.2d 376 (1970).
       Here,  Equicor  submitted  documents  to  and  appeared  before   the
Commission on  several  occasions.   In  February  of  1998,  Equicor  first
submitted its proposed primary plat  application  to  the  Plan  Commission.
The Technical Advisory Committee reviewed  the  application  in  March,  and
concluded that no changes to the plat were necessary.  The  Plan  Commission
staff then determined that approval should be  granted.   That  same  month,
the Commission took the first step toward suspension of the section  of  the
Local Zoning Ordinance dealing with cluster housing.  At  a  public  hearing
on March 23, it was determined  that  the  amendment  would  be  prospective
only, and Equicor’s application would be unaffected.  More  detailed  review
of the plat was conducted by the Subdivision  Committee,  which  recommended
three changes to Equicor’s primary  plat,  none  of  which  related  to  the
parking designation.   On  April  23,  the  Subdivision  Committee  reviewed
Equicor’s changes and referred the plat to the Commission for final  review.
 On May 26, the Plan Commission reviewed the plat and denied  approval,  for
the first time citing the failure to designate the number  and  location  of
parking spaces as a primary reason for its disapproval.
      In sum, the Plan Commission 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.   Under  these
circumstances, the Commission was estopped from  asserting  this  deficiency
as the reason for its disapproval of Equicor’s plat.
                                 Conclusion
      We reverse the trial court  and  remand  to  the  Westfield-Washington
Township Plan Commission for final  review  of  Equicor’s  proposed  primary
plat consistent with this opinion.

      SHEPARD, C.J., and DICKSON, SULLIVAN, and RUCKER, JJ., concur.
-----------------------
[1] Ind. Code 4-21.5.
[2] Hickory Hills concludes that, because  the  approval  of  a  plat  is  a
ministerial rather than a discretionary act, a plan commission does not  act
as an administrative agency in the approval or disapproval  of  a  plat  and
the rules  of  discovery  are  not  applicable  to  subdivision  application
proceedings.  699 N.E.2d at 1217.  We do not address this point here.