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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.

FILED
May 28 2008, 11:12 am
of the supreme court, court of appeals and tax court

CLERK

ATTORNEY FOR APPELLANT: STEPHEN W. VOELKER Voelker Law Office Jeffersonville, Indiana

ATTORNEY FOR APPELLEES NEW ALBANY BOARD OF ZONING APPEALS and CITY OF NEW ALBANY: SHANE L. GIBSON Gibson Law Office, LLC New Albany, Indiana

IN THE COURT OF APPEALS OF INDIANA
W. HOUSER CANTER, Appellant, vs. NEW ALBANY BOARD OF ZONING APPEALS, CITY OF NEW ALBANY, TED R. FULLMORE, WILLIAM ARBOUGH, and DAVID BARKSDALE, Appellees. ) ) ) ) ) ) ) ) ) ) ) )

No. 22A01-0705-CV-195

APPEAL FROM THE FLOYD CIRCUIT COURT The Honorable J. Terrence Cody, Judge Cause No. 22C01-0503-PL-174

May 28, 2008 MEMORANDUM DECISION - NOT FOR PUBLICATION BAILEY, Judge

Case Summary1 W. Houser Canter ("Canter") appeals the trial court's judgment affirming the New Albany Board of Zoning Appeals' ("BZA")2 denial of his application for a conditional use permit. We affirm. Issues On appeal, Canter asserts multiple claims and raises several issues.3 We consolidate, re-order, and re-state the issues as follows: I: Whether the BZA's denial of Canter's Application for Conditional Use was based upon substantial evidence; Whether the BZA deprived Canter of his due process rights under the Fourteenth Amendment;4 Whether the trial court erred in denying Canter's claim for inverse condemnation; and Whether the trial court erred in denying Canter's claim for equitable estoppel. Facts and Procedural History Canter has been a builder in the New Albany community since 1969. The City of New Albany ("City") held a lien on 801 Catherine Place ("801 Catherine"), a vacant lot
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We held oral argument in the State House on April 8, 2008.

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The Appellee's Brief was filed by the BZA and the City of New Albany. The other three appellees did not submit a brief.

3

Each argument must contain the appellant's contentions supported by cogent reasoning, citation to authority and to the Record, the applicable standard of review and a brief statement of the procedural and substantive facts necessary for consideration of the issue. Ind. Appellate Rule 46(A)(8)(a, b). Failure to comply with Indiana Appellate Rule 46(A)(8) waives the argument. Majors v. State, 773 N.E.2d 231, 235 n.2 (Ind. 2002). Canter therefore waived the following arguments: equal protection and jurisdiction.

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situated in an "RN-1, Residential Neighborhood District." Appendix at 22. In the Fall of 2003, Canter met with the City's Building Commissioner and other City officials to discuss vacant lots in the City and the development of affordable housing. Discussions that day or later may have focused on three sets of plans and on 801 Catherine as being a potential site for development. Canter paid the City at least $8000, obtained title to 801 Catherine in early 2004, secured a sewer permit, and built a foundation, which the City approved. On April 27, 2004, Canter applied for a building permit to place a manufactured home on 801 Catherine. In May of 2004, a City employee told Canter that he would have to apply for a conditional use permit. On May 24, 2004, a City employee "observe[d] construction of [a] structure at 801 Catherine." Id. at 50. On May 25, 2004, Canter submitted his conditional use application; "the home was set on the foundation" that same day.5 Id. at 22. Canter failed to appear for the first BZA hearing scheduled on the application. At the BZA's hearing on August 3, 2004, opponents testified that Canter's home was not compatible with other homes in the neighborhood. Specifically, they voiced concern that "the roof pitch of the dwelling was much too shallow at 4:12 pitch when nearby roof pitches are minimally 9:12 and greater." Id. at 97. The City's staff had essentially the same concern. The BZA denied Canter's application, informing him a week later.
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Canter cites Article I, Section 12 of the Indiana Constitution, but makes no argument that the analysis is different from the Fourteenth Amendment. 5 In Canter's Verified Petition submitted to the Floyd Circuit Court, he "affirm[ed], under the penalties for perjury, that" "[o]n June 6, 2004, I was told by the city representatives that I would have to apply for a conditional use permit for this property." Appendix at 22, 25. On his Application for Conditional Use, two different facsimile stamps read "05/25/2004 03:11" and "May 25 04 03:42p ouser Canter." Exhibit 1. Canter filled out all blanks on the application, except "Date Filed." Id.

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During a meeting with the Mayor and a City employee, Canter agreed to change his application so that it could be re-submitted to the BZA. Specifically, "he stated that he would alter the roofline and other features to try to make the dwelling more responsive to the existing architecture." Id. at 104. Canter submitted a second application. However, during a March 1, 2005 hearing, a City employee testified "that the applicant submitted substantially the same application as that denied by the Board previously." Id. at 102. The BZA denied Canter's second application, informing him in writing on March 10, 2005. On March 29, 2005, Canter filed with the trial court a "Verified Petition for Writ for Review by Certiorari and Complaint for Violation of Civil Rights to Enjoy Property and for Inverse Condemnation." Per the title, the document contained two causes of action: deprivation of a right under 42 U.S.C.

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