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Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANTS: LESLIE C. SHIVELY Shively & Associates, P.C. Evansville, Indiana

ATTORNEYS FOR APPELLEES: Town of Zionsville Plan Commission: PATRICK R. HESS BRIAN C. HECK Beckman Lawson, LLP Fort Wayne, Indiana Phil Cramer: JEFFREY S. JACOB Andreoli & Jacob Zionsville, Indiana

FILED
Aug 14 2009, 8:49 am
of the supreme court, court of appeals and tax court

CLERK

IN THE COURT OF APPEALS OF INDIANA
DARREN CROUSER and ANGELA BRITTON, Appellants-Petitioners, vs. TOWN OF ZIONSVILLE PLAN COMMISSION and PHIL CRAMER, Appellees-Respondents. ) ) ) ) ) ) ) ) ) )

No. 06A01-0901-CV-39

APPEAL FROM THE BOONE SUPERIOR COURT The Honorable Matthew C. Kincaid, Judge Cause No. 06D01-0803-MI-158

August 14, 2009 MEMORANDUM DECISION - NOT FOR PUBLICATION BAILEY, Judge

Case Summary Appellants-Petitioners Darren Crouser and Angela Britton appeal the trial court's order affirming the Town of Zionsville Plan Commission's ("ZPC") approval of Phil Cramer's minor plat submission. We affirm. Issues The Appellants raise two issues on appeal: I. Whether the trial court erred in concluding that the ZPC's approval of the Cramer's Petition did not constitute a vacation of the existing plat; and Whether the trial court erred in concluding that the ZPC's approval of the Cramer's Petition did not violate the Zionsville Subdivision Control Ordinance. Facts and Procedural History In 2007, Max Mouser, on behalf of Cramer, filed a Petition for Subdivision Plat Approval to further subdivide Lot 8 that Cramer owned in the Isenhour Hills Subdivision, Section II in Zionsville. According to the Petition, Lot 8 would be divided, creating Lots 8A and 8B. The plat for the subdivision had been recorded in 1951. Because sidewalks did not exist on the property at the filing of the Petition, Cramer also sought a waiver of Section 3.4 of the Zionsville Subdivision Control Ordinance, which requires the installation of sidewalks. This would permit Cramer to postpone installing sidewalks until sidewalks were installed in

II.

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the entire neighborhood. The Petition was reviewed by the ZPC's Staff and Technical Advisory Committee. Based on its review, the Staff issued comments, opining that because Cramer had agreed to install a drainage swale along the south lot line of lot 8A, the engineering and all other aspects of the project were found to be satisfactory. The comments also included conclusions that the project was exempt from the Town's post-construction stormwater quality and quantity requirements, the changes to the property were not prohibited by the covenants on the plat, the division of the property was not vacating a plat, and that the Petition complied with the Zionsville Subdivision Control Ordinance. The ZPC heard the Petition on January 22, 2008. After hearing the Petition and taking public comment, the hearing on the Petition was continued to February 18, 2008. After addressing concerns raised by some owners in the Isenhour Hills Subdivision, including Crouser, the ZPC approved the petition. The ZPC issued findings of fact that adequate provisions had been made for the regulation of the minimum lot depth and minimum lot area, for the widths, grades, curves and coordination of the subdivision of public ways, and for the extension of water, sewer and other municipal services. On March 17, 2008, the Appellants filed a Petition for Writ of Certiorari in Boone County, challenging the ZPC's approval of Cramer's Petition. The Appellants contended that Cramer's Petition was a re-plat and was required to comply with Indiana Code Section 36-7-3-10 (the Vacation Statute). The Appellants' Petition also alleged that Cramer's Petition failed to comply with the Zionsville Subdivision Control Ordinance in that the

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agreed drainage swale required compliance with section 3.6(C)(2)(c) of the Ordinance and that Cramer failed to submit evidence demonstrating compliance with the Zionsville Stormwater Management Ordinance. After conducting a review and hearing on the Writ, the trial court denied Appellants' request to declare the ZPC's decision illegal and affirmed the decision of the ZPC. This appeal ensued. Discussion and Decision Standard of Review Both the trial court and appellate court review the decision of a zoning board with the same standard of review. St. Charles Tower, Inc. v. Bd. of Zoning Appeals of EvansvilleVanderburgh County, 873 N.E.2d 598, 600 (Ind. 2007). "A proceeding before a trial court or an appellate court is not a trial de novo; neither court may substitute its own judgment for or reweigh the evidentiary findings of an administrative agency." Id. However, we conduct a de novo review of any questions of law decided by the agency. Burcham v. Metro. Bd. of Zoning Appeals Div. I of Marion County, 883 N.E.2d 204, 213 (Ind. Ct. App. 2008). I. Vacation Statute The Appellants first contend that the approval of the Petition was in violation of the Vacation Statute because Cramer was required to obtain the written consent of all of the subdivision lot owners for his petition. The Vacation Statute provides in relevant part: The owners of land in a plat may vacate all or part of that plat. All the owners of land in the plat must declare the plat or part of the plat to be vacated in a written instrument, and that instrument must be executed, acknowledged, and recorded in the same manner as a deed to land. 4

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