Preview:

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.

ATTORNEYS FOR APPELLANTS: L. CHARLES LUKMANN, III CHARLES F.G. PARKINSON

ATTORNEYS FOR CO-APPELLEE, Marshall County, Indiana, Plan Commission: KENNETH H. LUKENBILL MICHAEL A. DERUCKI Stevens Travis Fortin & Lukenbill Plymouth, Indiana ATTORNEY FOR CO-APPELLEE, Adams Place, LLP, d/b/a Adams Place, LLC, Dr. Christie Peterson: JUNE E. BULES Plymouth, Indiana

Harris Welsh & Lukmann
Chesterton, Indiana

IN THE COURT OF APPEALS OF INDIANA

ROBERT P. SPRUIT, RAYMOND TON, JR., JIM VAN LAERE, GERALD PETRON, LARRY PEREZ, PHILLIP W. and BETTY AHLENIUS, NORBERT and HELEN DURAY, MICHAEL C. WALTHER, Appellants-Petitioners, vs.

) ) ) ) ) ) ) ) ) )

No. 50A04-0610-CV-594

MARSHALL COUNTY, INDIANA PLAN COMMISSION, ADAMS PLACE, LLP, d/b/a ) ADAMS PLACE, LLC, DR. CHRISTIE ) PETERSON and DENNIS ELLIOTT, MARSHALL) COUNTY, INDIANA BUILDING INSPECTOR, ) ) Appellees-Respondents. )

APPEAL FROM THE MARSHALL SUPERIOR COURT The Honorable Robert O. Bowen, Judge Cause No. 50D01-0508-MI-6

May 18, 2007 MEMORANDUM DECISION - NOT FOR PUBLICATION

BARNES, Judge

Case Summary Robert P. Spruit, Raymond Ton, Jr., Jim Van Laere, Gerald Petrow, Larry Perez, Phillip W. and Betty Ahlenius, Norbert and Helen Duray, Michael C. Harris, and Chester and Judith A. Walther (collectively, "the Neighbors") appeal the denial of their petition for writ of certiorari and request for a permanent injunction. We affirm. Issue The Neighbors raise one issue, which we restate as whether the trial court properly denied their petition for writ of certiorari. Facts On May 9, 2005, the Marshall County Plan Commission ("Plan Commission") received a plat application from Christie Peterson seeking to subdivide a parcel of

2

property referred to as Adams Place, LLP. The 1.58-acre lakefront parcel contained two apartment buildings, each containing four units, a cottage, and a garage. Some of the buildings were non-conforming uses that were "grandfathered in" when the Marshall County Zoning Ordinance ("Zoning Ordinance") was adopted in 1974. Peterson sought to subdivide the parcel into one .88-acre parcel that would contain all of the structures and would have no lake access and another .70-acre parcel that would contain none of the structures and would have lake access. On June 23, 2005, the Plan Commission held a public hearing on the application, at which evidence was heard, including objections from the Neighbors. That day, the Plan Commission approved the subdivision over the Neighbors' objections. On July 28, 2005, the Neighbors appealed to the Plan Commission the approval of Peterson's request to subdivide the parcel. This appeal was unsuccessful, and the Neighbors petitioned for a writ of certiorari and sought an injunction against Dennis Elliot, the Marshall County Building inspector, preventing him from issuing any building permits for the subdivided parcel. A paper record was eventually compiled and the trial court affirmed the Plan Commission's decision approving the subdivision and denying the request for injunctive relief. The neighbors now appeal that decision. Analysis The Neighbors claim that the trial court improperly affirmed the Plan Commission's decision. Indiana Code Section 4-21.5-5-14 prescribes the review of an administrative decision and provides that relief may only be granted if the agency action is: (1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with 3

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. Equicor Development, Inc. v. Westfield-Washington Twp. Plan Comm'n, 758 N.E.2d 34, 36 (Ind. 2001). "An administrative act is arbitrary and capricious only where it is willful and unreasonable, without consideration and in disregard of the facts and circumstances of the case, or without some basis that would lead a reasonable and honest person to the same conclusion." Rice v. Allen County Plan Comm'n, 852 N.E.2d 591, 597 (Ind. Ct. App. 2006), trans. denied. Indiana Code Section 4-21.5-5-14(a) also provides that the burden of demonstrating the invalidity of the agency action is on the party asserting invalidity. Equicor, 758 N.E.2d at 37. In reviewing an administrative decision, we may not try the facts de novo or substitute our own judgment for that of the agency. Id. (citing Ind. Code

Download Robert P. Spruit, Raymond Ton, Jr., Jim Van Laere, et al. v. Marshall County, In

Indiana Law