MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                           FILED
regarded as precedent or cited before any                             May 10 2019, 9:05 am

court except for the purpose of establishing                               CLERK
                                                                       Indiana Supreme Court
the defense of res judicata, collateral                                   Court of Appeals
                                                                            and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANTS                                  ATTORNEY FOR APPELLEE
C. Gregory Fifer                                         John A. Kraft
Applegate Fifer Pulliam LLC                              Young, Lind, Endres & Kraft
Jeffersonville, Indiana                                  New Albany, Indiana


                                          IN THE
    COURT OF APPEALS OF INDIANA

Town of Clarksville, Aaron                               May 10, 2019
Stonecipher, Paul Fetter,                                Court of Appeals Case No.
Jennifer Voignier, and John                              18A-PL-2857
Gilkey,                                                  Appeal from the Clark Circuit
Appellants-Defendants,                                   Court
                                                         The Honorable J. Terrence Cody,
        v.                                               Special Judge
                                                         Trial Court Cause No.
Plum Creek Crossing                                      10C02-1705-PL-45
Apartments, LLC,
Appellee-Plaintiff.



Friedlander, Senior Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-PL-2857 | May 10, 2019                   Page 1 of 13
                                       Statement of the Case
[1]   Appellants Town of Clarksville, Indiana, and four members of the Town’s

      Council (collectively, “the Town”) appeal the trial court’s grant of partial

      summary judgment to Plum Creek Crossing Apartments, LLC (“Plum Creek”),

      in a zoning dispute. We reverse and remand.


                                                       Issue
[2]   The Town raises two issues, which we consolidate and restate as: whether the

      trial court erred in granting partial summary judgment to Plum Creek.


                                Facts and Procedural History
[3]   Plum Creek contracted to purchase a 3.14-acre parcel of vacant land on

      Clarksville’s north side. The property is surrounded by a mix of business and

      residential zones. Plum Creek intended to build an apartment complex, but in

      order to do so, it needed to have the Town rezone the property from B1
                                                  1
      (commercial) to R3 (residential).


[4]   On December 20, 2016, Plum Creek filed with the Town an application to

      rezone the land. Plum Creek asserted it was requesting a “downzone” to a

      “less intense use which should have a positive impact” on neighboring property

      values. Appellants’ App. Vol. II, p. 34.




      1
        Plum Creek initially sought to have the property rezoned as a planned unit development but later chose to
      instead request rezoning the property from B1 to R3.

      Court of Appeals of Indiana | Memorandum Decision 18A-PL-2857 | May 10, 2019                    Page 2 of 13
[5]   Plum Creek also sought a variance from setback requirements for the proposed

      apartment buildings. Specifically, Plum Creek requested a ten-foot rear yard

      setback rather than the standard twenty-foot setback required in an R3 zone.

      On January 25, 2017, the Town’s Board of Zoning Appeals determined that the

      variance, if approved, should not substantially affect “the use and value” of

      adjacent properties and would not pose a threat to “the public health, safety,

      morals, and general welfare of the community.” Id. at 50. The Board

      concluded that approval of the variance would be granted if the Town also

      granted Plum Creek’s petition to rezone the property.


[6]   Meanwhile, the Town’s Planning Department hired Kovert Hawkins Architects

      to assess whether Plum Creek’s proposed apartment complex would

      complement surrounding neighborhoods and comply with the Town’s zoning

      ordinance. The architects noted that Plum Creek’s property was located

      between commercially zoned property and residentially zoned single-family

      property. They concluded the proposed apartment complex was a “transition”

      between the two zoning classifications, and a multi-family development would

      “make sense” in that context. Id. at 71.


[7]   Katherine Groskreutz, who worked for the Town’s Planning Department,

      issued a report on the property in preparation for a February 1, 2017 meeting of

      the Town’s Plan Commission (“the Commission”). She noted Clarksville is

      surrounded by other municipalities, and, as a result, the town could grow only

      through redevelopment, or “infill,” of existing properties rather than addition of

      new territory. Id. at 56. Groskreutz further stated Plum Creek’s proposed

      Court of Appeals of Indiana | Memorandum Decision 18A-PL-2857 | May 10, 2019   Page 3 of 13
      apartment complex was “in conformance with most of the relevant objectives

      and policies of the [Town’s] Comprehensive Plan,” including “focusing

      development on infill and housing diversity.” Id. at 59. In her opinion, the

      complex would be “a good design and land use buffer” between neighboring

      single-family homes and commercial properties. Id. at 57. The report further

      noted that Clarksville’s current rental units are concentrated in the center of

      town, and some “appear to be nearing the end of their life cycle and will soon

      become obsolete.” Id. Plum Creek’s proposed apartment complex would “be

      new and in an area other than the center of Clarksville.” Id.


[8]   The Commission considered Plum Creek’s rezoning application at a February

      1, 2017 meeting. Plum Creek’s attorney distributed “statutory considerations”

      and discussed them with the Commission’s members. Appellants’ App. Vol.

      III, pp. 55-56. The Commission members raised questions about traffic, the

      amount of vacant rental property in town, and the building materials that

      would be used, among other topics. In addition, six members of the

      community asked questions and raised concerns about the appearance of the

      proposed complex and traffic. One commenter asked that the rezoning request

      be denied. At the end of the meeting, the Commission tabled Plum Creek’s

      application for consideration at another meeting.


[9]   On February 27, 2017, a traffic engineer released a study indicating that the

      proposed apartment complex would generate less traffic than a retail

      development on the same site.



      Court of Appeals of Indiana | Memorandum Decision 18A-PL-2857 | May 10, 2019   Page 4 of 13
[10]   The Commission considered Plum Creek’s application again at a March 1,

       2017 hearing. The Commission’s staff indicated Plum Creek had addressed

       concerns about building materials. In addition, four citizens provided public

       comments. Two of the citizens indicated they would prefer to see owned

       properties rather than rented apartments. The Commission voted to approve

       Plum Creek’s application by a vote of four to one and forwarded the application

       to the Town Council with a favorable recommendation.


[11]   Meanwhile, Plum Creek had hired Integra Realty Resources (“IRR”) to

       perform an apartment market analysis for the proposed apartment complex. In

       a March 7, 2017 letter to Plum Creek’s architect, which was in turn presented to

       the Town Council, IRR stated the complex was unlikely to negatively affect the

       property values of neighboring properties.


[12]   The Town Council met on March 7, 2017, and considered Plum Creek’s

       rezoning application, presented as a draft ordinance. Appellant Stonecipher

       asked Clarksville’s Planning Director, Sharon Wilson, to address his concerns

       about the project. Director Wilson stated there would be no negative impact to

       neighboring property values, there would be no increases in stormwater runoff,

       there would be less traffic than for a retail commercial use, and there would be

       more green space than was required by the zoning ordinance.


[13]   Four members of the public commented on the rezoning request, with three of

       them opposing the proposed ordinance. By contrast, representatives of Plum




       Court of Appeals of Indiana | Memorandum Decision 18A-PL-2857 | May 10, 2019   Page 5 of 13
       Creek and IRR spoke in favor of rezoning. The Town Council decided to table

       the application and hold additional meetings.


[14]   The Town held a second meeting on March 11, 2017. Plum Creek’s

       representatives spoke in favor of rezoning. Four members of the public,

       representing homeowners’ associations for communities near the proposed

       complex, expressed opposition to the project. They complained of increased

       traffic and harm to property values. Groskreutz stated the staff recommended

       approving the rezoning application because the project “met or exceeded” all

       requirements. Appellants’ App. Vol. II, p. 94. The Town scheduled another

       meeting to vote on the proposal.


[15]   The Town Council met on March 21, 2017, to consider Plum Creek’s rezoning

       application for a third time. Five citizens spoke in opposition to the

       application, and Plum Creek’s representatives spoke in favor of it. Prior to a

       vote, the Town’s attorney read to the Council Indiana Code section 36-7-4-603
                                                                                                    2
       “as the statutory factors for the Council to consider with due regard.”

       Appellants’ App. Vol. III, p. 97. The Council denied the rezoning ordinance by

       a vote of three to four.


[16]   The current court case began on May 1, 2017, when Plum Creek filed a civil

       complaint against the Town and the four members of the Town Council who




       2
        The meeting minutes state that the attorney read the text of “Indiana Code 36-7-4-6.03,” Appellants’ App.
       Vol. III, p. 97, but there is no such statute in the Indiana Code.

       Court of Appeals of Indiana | Memorandum Decision 18A-PL-2857 | May 10, 2019                     Page 6 of 13
       voted to deny rezoning. Plum Creek later amended the complaint, alleging the

       Town’s decision to deny rezoning was “arbitrary, capricious, unreasonable,

       illegal, and an abuse of discretion . . . .” Id. at 135. In its request for relief,

       Plum Creek requested a writ of mandate to grant the rezoning petition,

       declaratory judgment, and monetary damages, to be paid by the four town

       council members.


[17]   The parties filed cross-motions for partial summary judgment. Plum Creek

       asked the trial court to issue findings of fact and conclusions thereon. The trial

       court held a hearing, and the parties submitted proposed findings and

       conclusions.


[18]   On November 7, 2018, the trial court issued findings of fact and conclusions

       thereon granting partial summary judgment in favor of Plum Creek. The court

       determined, “[t]he denial of the rezoning application was arbitrary, capricious,

       illegal, and in disregard of all of the facts and circumstances.” Appellants’ App.

       Vol. II, p. 18. As a result, the court ordered the Town “to rezone the real estate

       [at issue] . . . and otherwise permit and approve [Plum Creek’s] project.” Id.

       Finally, the court noted that other issues remained to be resolved, but “there is

       no just reason for delay in the entry of this judgment” and directed the trial

       court clerk to enter judgment. Id. at 18-19. This appeal followed.


                                    Discussion and Decision
[19]   The Town asks this Court to reverse the trial court’s grant of partial summary

       judgment, claiming “the trial court erroneously substituted its judgment for that

       Court of Appeals of Indiana | Memorandum Decision 18A-PL-2857 | May 10, 2019   Page 7 of 13
       of the legislative body.” Appellants’ Br. p. 13. Orders on summary judgment

       are reviewed de novo, applying the same standard as the trial court. Hughley v.

       State, 15 N.E.3d 1000 (Ind. 2014). “The judgment sought shall be rendered

       forthwith if the designated evidentiary matter shows that there is no genuine

       issue as to any material fact and that the moving party is entitled to a judgment

       as a matter of law.” Ind. Trial Rule 56(C). If the movant demonstrates the

       absence of an issue of material fact and entitlement to judgment as a matter of

       law, then the nonmoving party has the burden to demonstrate that there is a

       genuine issue of material fact. Hughley, 15 N.E.3d 1000. All reasonable

       inferences will be construed in favor of the nonmoving party. AM General LLC

       v. Armour, 46 N.E.3d 436 (Ind. 2015).


[20]   A grant of summary judgment is presumed valid, and the appellant must

       persuade us that error occurred. Cracker Barrel Old Country Store, Inc. v. Town of

       Plainfield ex rel. Plainfield Plan Comm’n, 848 N.E.2d 285 (Ind. Ct. App. 2006),

       trans. denied. We may affirm a grant of summary judgment on any grounds

       supported by the designated materials. Fifty Six LLC v. Metro. Dev. Comm’n of

       Marion Cty., 38 N.E.3d 726 (Ind. Ct. App. 2015), trans. denied. In the context of

       summary judgment, we are not bound by the trial court’s findings of fact and

       conclusions thereon, but they aid our review by providing us with a statement

       of reasons for the trial court’s judgment. Memory Gardens Mgmt. Corp. v. Liberty

       Equity Partners, LLC, 43 N.E.3d 609 (Ind. Ct. App. 2015), trans. denied.


[21]   The standards governing rezoning decisions are also relevant to our review. In

       general, whether to rezone a particular piece of property is a matter left to the
       Court of Appeals of Indiana | Memorandum Decision 18A-PL-2857 | May 10, 2019   Page 8 of 13
       sound discretion of the local legislative body. Bryant v. Cty. Council of Lake Cty.,

       720 N.E.2d 1 (Ind. Ct. App. 1999), trans. denied. A court may reverse a

       rezoning decision only if it is arbitrary or capricious, that is, the legislative body

       has taken willful and unreasonable action without consideration and in

       disregard of the facts or circumstances of the case. Id. A court should not

       intervene in a local zoning decision as long as the decision is supported by a

       rational basis. Id.


[22]   A plan commission’s role in the rezoning process is merely advisory because

       the local legislative body has the ultimate authority to accept or reject a

       proposed rezoning ordinance. Id. A court may not inquire into the motives of

       the members of a local legislative body when the body acts in its legislative

       capacity. Id. Finally, a local legislative body is not required to make findings of

       fact to support the exercise of legislative discretion. Bd. of Comm’rs of

       Vanderburgh Cty. v. Three I Props., 787 N.E.2d 967 (Ind. Ct. App. 2003).


[23]   In the current case, the parties dispute whether the Town denied Plum Creek’s

       rezoning petition willfully and unreasonably, in disregard of the facts and

       circumstances. When a legislative body considers a zoning proposal:


               the legislative body shall pay reasonable regard to:


               (1) the comprehensive plan;


               (2) current conditions and the character of current structures and
               uses in each district;


       Court of Appeals of Indiana | Memorandum Decision 18A-PL-2857 | May 10, 2019   Page 9 of 13
               (3) the most desirable use for which the land in each district is
               adapted;


               (4) the conservation of property values throughout the
               jurisdiction; and


               (5) responsible development and growth.


       Ind. Code § 36-7-4-603 (1986).


[24]   The phrase “reasonable regard” is not defined by statute. In Borsuk v. Town of

       St. John, 820 N.E.2d 118, 122 (Ind. 2005), the Indiana Supreme Court

       explained that Indiana Code section 36-7-4-603 requires local legislative bodies

       to “consider all factors and make a balanced determination.” In that case, a

       landowner sued a town after the town rejected his request to rezone his

       residential property as commercial. Borsuk claimed the town arbitrarily and

       capriciously disregarded its own comprehensive plan for municipal

       development, because the plan indicated that his property should be rezoned as

       commercial at some point in the future.


[25]   The Indiana Supreme Court reviewed the evidence presented at public meetings

       on the petition. Members of the town council expressed concern about traffic

       congestion caused by the project and possible harm to the property values of

       neighboring residences. The Court concluded that the town considered all the

       statutory factors, and the town’s decision had a rational basis despite apparently

       contravening the town’s comprehensive plan.



       Court of Appeals of Indiana | Memorandum Decision 18A-PL-2857 | May 10, 2019   Page 10 of 13
[26]   Next, in City of Madison v. Demaree, 77 N.E.3d 1219 (Ind. Ct. App. 2017), a city

       denied Demaree’s request to rezone his property from residential to

       commercial. Demaree went to court, and the trial court ordered the city to

       grant the rezoning request. On appeal, a panel of this Court determined that

       the city council had received evidence about neighboring property values, the

       best use of the property, traffic issues, drainage, and privacy issues. During

       public hearings, residents expressed concern about the value of their properties

       and traffic issues. The Court determined that the city had “received

       information about, heard comment on, and weighed and discussed all of the

       factors required to be considered by Indiana Code section 36-7-4-603.” Id. at

       1223. As a result, the city’s decision had a rational basis, and the trial court

       erred in ordering the city to grant the requested rezoning.


[27]   In this case, the Town’s Plan Commission held two public hearings on Plum

       Creek’s rezoning petition, and the Town’s Council held three public hearings.

       The Town’s attorney advised the Council that it must consider the factors set

       forth in Indiana Code section 36-7-4-603. The Plan Commission and the

       Council received and reviewed reports from the Town’s Planning Department

       staff, Kovert Hawkins Architects, and IRR regarding the Town’s

       comprehensive plan, the conditions of properties in the area and their property

       values, the highest and best use of Plum Creek’s property, and whether the

       development would enhance responsible development and growth. During

       public meetings, citizens and Plum Creek’s representatives discussed potential

       traffic issues and property values. In addition, members of the Plan


       Court of Appeals of Indiana | Memorandum Decision 18A-PL-2857 | May 10, 2019   Page 11 of 13
       Commission raised questions about traffic, the amount of vacant rental

       property in town, and building materials that would be used, among other

       topics. Finally, members of the Town Council asked staff to provide additional

       information on these topics during one of the public meetings.


[28]   Viewing the facts in the light most favorable to the nonmovant, and following

       the holdings in Borsuk and Demaree, there is a dispute of material fact as to

       whether the Town paid “reasonable regard” to the factors set forth in Indiana

       Code section 36-7-4-603. As a result, we cannot yet conclude whether the

       Town acted arbitrarily and capriciously in denying Plum Creek’s rezoning

       request. The trial court erred in granting partial summary judgment to Plum
                                                             3
       Creek, and we must reverse and remand.


[29]   Plum Creek argues the Town ignored the factors set forth in Indiana Code

       section 36-7-4-603. Plum Creek further argues the Town arbitrarily ignored the

       expert opinions of the Town’s planning staff, the architects, and IRR regarding

       traffic congestion and property values, choosing to instead give weight to the

       opinions of non-experts who lived in neighboring properties. We have

       determined that there are disputes of material fact as to whether the Town gave

       reasonable regard to the statutory factors, and that determination is dispositive

       of this appeal. The merits of the parties’ claims must be resolved on remand.




       3
         The Town also claims that the trial court erred in discounting the affidavits submitted by Town Council
       members on summary judgment. We do not need to address this issue because the information discussed at
       the public meetings is sufficient to establish disputes of material fact.

       Court of Appeals of Indiana | Memorandum Decision 18A-PL-2857 | May 10, 2019                 Page 12 of 13
                                                Conclusion
[30]   For the reasons stated above, we reverse the judgment of the trial court and

       remand for further proceedings.


[31]   Reversed and remanded.


       Mathias, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-PL-2857 | May 10, 2019   Page 13 of 13
