                                                                          FILED
                                                                      Jan 30 2020, 8:43 am

                                                                          CLERK
                                                                      Indiana Supreme Court
                                                                         Court of Appeals
                                                                           and Tax Court




ATTORNEYS FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Michael Rouker                                              Kendra G. Gjerdingen
Larry D. Allen                                              Garry L. Founds
Bloomington, Indiana                                        D. Michael Allen
                                                            Daniel A. Dixon
                                                            Mallor Grodner LLP
ATTORNEYS FOR AMICUS CURIAE                                 Bloomington, Indiana
James L. Whitlatch
Kathryn DeWeese
Bunger & Robertson
Bloomington, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

City of Bloomington Board of                                January 30, 2020
Zoning Appeals,                                             Court of Appeals Case No.
Appellant,                                                  19A-PL-457
                                                            Appeal from the Monroe Circuit
        v.                                                  Court
                                                            The Honorable Frank M. Nardi,
UJ-Eighty Corporation,                                      Special Judge
Appellee.                                                   Trial Court Cause No.
                                                            53C06-1806-PL-1240



Pyle, Judge.




Court of Appeals of Indiana | Opinion 19A-PL-457 | January 30, 2020                           Page 1 of 23
                                         Statement of the Case

[1]   This appeal involves a city ordinance that was found unconstitutional as an

      unlawful delegation of governmental authority. Bloomington (“the City”)

      enacted a Unified Development Ordinance (“the Ordinance”) that contained

      the definition of a fraternity or sorority house and required students to be

      enrolled in Indiana University and sanctioned by the university, through

      whatever process the university chose, as members of a fraternity or sorority.


[2]   In August 2016, UJ-Eighty Corporation (“UJ-Eighty”), the owner of real estate

      (“the Property”) located in the City, entered into a lease with the Gamma-

      Kappa Chapter of Tau Kappa Epsilon (“TKE”). At the time, TKE was a

      sanctioned fraternity with Indiana University. In February 2018, the members

      of TKE were notified that they could no longer reside at the Property because

      the university no longer sanctioned TKE. Most of the residents moved out, but

      two individuals continued to reside at the Property.


[3]   Following the loss of TKE’s status as a sanctioned fraternity, the City

      determined that the Property no longer met the Ordinance definition of a

      “Fraternity/Sorority House” and issued two notices of violation (“NOV”) to

      UJ-Eighty. UJ-Eighty appealed the issuance of the NOVs before the

      Bloomington Board of Zoning Appeals (“BZA”). The BZA affirmed the

      issuance of the NOVs. UJ-Eighty then sought judicial review of the BZA’s


      Court of Appeals of Indiana | Opinion 19A-PL-457 | January 30, 2020       Page 2 of 23
      decision. The trial court granted UJ-Eighty’s petition, finding that the City had

      improperly delegated authority to Indiana University to determine whether the

      Property was being used by students in a sanctioned fraternity and that the

      Ordinance was unconstitutional under the Due Process Clause of the

      Fourteenth Amendment of the United States Constitution and Article 4, § 1 of

      the Indiana Constitution.


[4]   On appeal, the BZA argues that the trial court erred by finding that the City,

      through the Ordinance, delegated zoning authority to Indiana University in

      contravention of federal and state constitutions. Concluding that the City

      improperly delegated authority to Indiana University in violation of the Due

      Process Clause of the Fourteenth Amendment, we affirm the trial court.1


[5]   We affirm.


                                                        Issue

              Whether the City, through the Ordinance, improperly delegated
              governmental authority in violation of the Due Process Clause of the
              Fourteenth Amendment of the United States Constitution.
                                                       Facts2




      1
       Because we hold that the United States Constitution issue is dispositive, we need not address whether the
      Ordinance violated the Indiana Constitution.
      2
       We held oral argument in this cause on October 8, 2019, in the Court of Appeals courtroom in
      Indianapolis, Indiana. We thank counsel for their excellent oral advocacy in this matter.

      Court of Appeals of Indiana | Opinion 19A-PL-457 | January 30, 2020                             Page 3 of 23
[6]   In 2002, UJ-Eighty purchased real estate in Bloomington, Indiana. The

      Property consists of a house that is in an Institutional zoning district. The City

      permits twenty-six uses within Institutional zoning districts, of which the

      following are residential uses: (1) Fraternity/Sorority House; (2) Group Care

      Home for Developmentally Disabled; (3) Group Care Home for Mentally Ill;

      (4) Group/Residential Care Home; and (5) University or College.

      Bloomington Mun. Code § 20.02.500. Residential occupancy outside of the

      five uses is not permitted in an Institutional zoning district. At the time UJ-

      Eighty purchased the Property, a “Fraternity/Sorority House” was defined as

      follows:


              A building or portion thereof used for sleeping accommodations,
              with or without accessory common rooms and cooking and eating
              facilities, for groups of unmarried students in attendance at an
              educational institution. Shall also include any building or portion
              thereof in which individual rooms or apartments are leased to
              individuals, but occupancy is limited to members of a specific
              fraternity or sorority, regardless of the ownership of the building or
              the means by which occupancy is so limited.

      Bloomington Mun. Code § 20.02 (as adopted and effective May 1, 1995).


[7]   Thereafter, in 2015, the Bloomington City Council amended the definition of

      “Fraternity/Sorority House” contained in the Ordinance at issue in this appeal

      to mean the following:


              A building or portion thereof used for sleeping accommodations,
              with or without accessory common rooms and cooking and eating
              facilities, for groups of unmarried students who meet the following
              requirements: all students living in the building are enrolled at Indiana
              University, Bloomington Campus; and Indiana University has sanctioned
              or recognized the students living in the building as being members of a
      Court of Appeals of Indiana | Opinion 19A-PL-457 | January 30, 2020           Page 4 of 23
                 fraternity or sorority through whatever procedures Indiana University uses
                 to render such a sanction or recognition. Shall also include a building
                 or portion thereof in which individual rooms or apartments are
                 leased to individuals, but occupancy is limited to members of a
                 specific fraternity or sorority, regardless of the ownership of the
                 building or the means by which occupancy is so limited, provided
                 the two requirements noted in the first sentence of this definition are also
                 met.

      Bloomington Mun. Code § 20.11.020. (emphases added).


[8]   In August 2016, UJ-Eighty leased the Property to TKE for a term from August

      2016 through May 2019.3 In February 2018, the members of TKE were notified

      that they could no longer reside at the Property because Indiana University no

      longer recognized or sanctioned the local TKE chapter. With the assistance of

      Indiana University, most of the residents moved out and secured other housing.

      However, two individuals continued to reside at the Property.


[9]   Thereafter, the City received information that the two individuals had not

      vacated the Property. The City mailed a NOV of the Ordinance to UJ-Eighty

      on February 22, 2018. This NOV alleged that the Property was being used by

      two individuals as a dwelling in an “Institutional zoning district which does not

      permit dwelling of any type, as per the Bloomington Municipal Code’s Unified

      Development Ordinance (UDO) Section 20.02.500 Institutional Permitted

      Uses. As of February 18, 2018, [the Property] no longer meets the [Ordinance]




      3
          The lease agreement was not included in the appendix.


      Court of Appeals of Indiana | Opinion 19A-PL-457 | January 30, 2020                  Page 5 of 23
       definition of a ‘fraternity,’ a permitted use in Institutional zoning districts.”

       (App. 15).


[10]   Shortly thereafter, on February 28, 2018, the City mailed a second NOV to UJ-

       Eighty. The NOV made the same basic allegation of non-compliance of the

       Ordinance as stated in the first NOV. It also included the Ordinance definition

       of “Fraternity/Sorority House” and stated that two individuals had failed to

       vacate the Property, resulting in an “illegal land use.” (App. 16).


[11]   Both NOVs warned that a violation of this nature could result in a two

       thousand five hundred dollar ($2,500) fine. Further, the NOVs warned that

       each day a violation was allowed to continue would be considered a separate

       violation and that subsequent violations were twice the previous fine, up to a

       maximum daily fine of seven thousand five hundred dollars ($7,500).

       However, no fines were ever imposed.


[12]   UJ-Eighty requested an administrative appeal of the City’s issuance of the

       NOVs. The BZA held a hearing in May 2018. At the hearing, UJ-Eighty

       argued that the Ordinance allowed an unconstitutional delegation of power to

       Indiana University in violation of the 14th Amendment to the U.S. Constitution

       and Article 4, § 1 of the Indiana Constitution. When arguing against the

       unconstitutionality of the Ordinance, the City confirmed that its application

       and enforcement of the Ordinance was contingent upon Indiana University’s

       determination. The City argued that the Ordinance meant that “once Indiana

       University no longer sanctioned or recognized the fraternity occupying the


       Court of Appeals of Indiana | Opinion 19A-PL-457 | January 30, 2020         Page 6 of 23
petitioner’s location, the use ‘fraternity/sorority house’ could no longer be

applied to use by those occupants.” (App. 38). The City further asserted that

“it is reasonable to define the term according to whether the university

acknowledges that the occupants are a sanctioned fraternity/sorority.” (App.

38). On June 13, 2018, the BZA affirmed the issuance of the NOVs and denied

UJ-Eighty’s appeal. UJ-Eighty then petitioned for judicial review of the BZA

decision, raising the same constitutional arguments. The trial court granted the

petition and entered its order in February 2019. It found that the City had

unlawfully delegated governmental authority to Indiana University in violation

of the Indiana Constitution and the U.S. Constitution. Specifically, the trial

court found that the City’s actions were:


        contrary to law and violate[d] the Constitution of Indiana. As
        argued by [UJ-Eighty], Article 4[,] Section 1 of the Indiana
        Constitution delegates the legislative authority to the General
        Assembly and the General Assembly has delegated planning and
        zoning powers to municipalities and their respective plan
        commissions and boards of zoning appeals. The [City] has
        improperly delegated the authority to Indiana University to
        unilaterally define what constitutes a fraternity or sorority under
        the [City’s] [Ordinance].

        The court also finds . . . that the [City’s] actions also constitute an
        unlawful delegation of governmental authority in violation of the
        due process clause of the Fourteenth Amendment of the United
        States Constitution. As argued by [UJ-Eighty], the [City’s]
        definition allows Indiana University to unilaterally determine how
        [UJ-Eighty] may use its property and both the [City] and [UJ-
        Eighty] are bound by that determination. The [City’s] Ordinance
        does not provide a standard to control the University’s decision,
        nor does it provide [UJ-Eighty] with a right to a review of the
        University’s decision. Under the definition, the University can
        make the decision to recognize or sanction a fraternity under
        whatever procedures that it chooses, without restriction. This type

Court of Appeals of Indiana | Opinion 19A-PL-457 | January 30, 2020         Page 7 of 23
               of delegation of authority has been found to be unconstitutional as
               found by the Supreme Court of the United States in State of
               Washington ex rel. Seattle Trust Co. v. Roberge, 278 U.S. 116 (1928).
               More recently the Indiana Court of Appeals in Counceller v. City of
               Columbus Plan Comm'n, 42 N.E.3d 146 (Ind. Ct. App. 2015) cited
               the Roberge case and acknowledged that zoning ordinances which
               grant unrestricted power to neighbors to withhold consent for a
               particular property use are unconstitutional. The [City’s]
               definition of fraternities gives Indiana University the unrestricted
               power to determine [UJ-Eighty’s] use of its property without
               providing any mechanism for reviewing and overruling the
               University’s decision, and for this reason is unconstitutional and
               not in accordance with law.

               The Court now grants the Petition for Judicial Review, strikes
               down the definition of “Fraternity/Sorority House” as defined by
               the Bloomington Unified Development Ordinance as unlawful,
               sets aside the decision of the Board of Zoning Appeals, and Orders
               the Board of Zoning Appeals to dismiss and vacate the Notices of
               Violation issued against [UJ-Eighty].

       (App. 201-2) (italics added). The BZA now appeals.4


                                                     Decision

[13]   On appeal, the BZA argues that the City’s Ordinance does not “violate the due

       process clause of the Fourteenth Amendment to the United States

       Constitution.” (BZA’s Br. 13). Specifically, the BZA argues that the Ordinance

       “simply defines fraternities and sororities as what they are—entities affiliated

       with universities.” (BZA’s Br. 15). For its part, UJ-Eighty argues that the City




       4
         After the parties submitted their appellate briefs, UJ-Eighty moved to strike portions of the amicus brief
       filed by Indiana University in support of the BZA, and Indiana University filed a response thereto. We grant
       UJ-Eighty’s motion to strike in an order filed contemporaneously with this opinion.

       Court of Appeals of Indiana | Opinion 19A-PL-457 | January 30, 2020                             Page 8 of 23
       delegates to “Indiana University alone the authority to determine how UJ-

       Eighty Corporation may use the Property without providing a standard by

       which the City can control the University’s decision and without providing UJ-

       Eighty with the right to have the University’s decision reviewed.” (UJ-Eighty’s

       Br. 22).

[14]   “The ultimate purpose of zoning ordinances is to confine certain classes of uses

       and structures to designated areas.” Ragucci v. Metro. Dev. Comm’n of Marion

       Cty., 702 N.E.2d 677, 679 (Ind. 1998). Zoning is essentially a legislative act.

       Board of Comm’rs of Cty. of Vanderburgh v. Three I Properties, 787 N.E.2d 967, 976

       (Ind. Ct. App. 2003). However, a county, municipality, or other unit of local

       government is not authorized to engage in the zoning process unless our

       General Assembly has delegated this authority to them. See IND. CODE § 36-7-

       4-601 et seq.; I.C. § 36-1-2-23; Green v. Hancock Cty. Bd. Of Zoning Appeals, 851

       N.E.2d 962, 965-966 (Ind. Ct. App. 2006). As a result, Indiana statutes give

       counties, municipalities, and other units of local government the power to plan

       for and regulate the use, development, improvement, location, condition, and

       maintenance of real property and buildings or structures on it for the purpose of

       promoting the health, safety, morals, or general welfare of a community.

       Evansville Outdoor Advert., Inc. v. Bd. Of Zoning Appeals of Evansville and

       Vanderburgh Cty., 757 N.E.2d 151, 160 (Ind. Ct. App. 2001), reh’g denied, trans.

       denied. Despite this power, a political subdivision of this state exercising zoning

       authority must also do so within applicable constitutional limitations. Dvorak v.

       City of Bloomington, 702 N.E.2d 1121, 1124 (Ind. Ct. App. 1998).


       Court of Appeals of Indiana | Opinion 19A-PL-457 | January 30, 2020           Page 9 of 23
[15]   “When we review a constitutional challenge to a municipal ordinance, we

       consider the ordinance to stand on the same footing as an act of the legislature.”

       Id. In fact, the ordinance is presumed to be constitutional. Id. Upon appellate

       review, “we accord the ordinance every reasonable presumption supporting its

       validity and place the burden upon the party challenging it to show

       unconstitutionality.” Id. An ordinance will not be declared unconstitutional

       merely because this court might consider it unwise, undesirable, or ineffective;

       the constitutional defects must be clearly apparent. Id.

[16]   In addition, INDIANA CODE § 36-7-4-1614(d), provides that a reviewing court

       should grant relief only if the court determines that a person seeking judicial

       relief has been prejudiced by a zoning decision that 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.

       “The burden of demonstrating the invalidity of a zoning decision is on the party

       to the judicial review proceeding asserting invalidity.” I.C. § 36-7-4-1614(a).

       When we review the BZA’s actions, we apply the same standard as the trial

       court. St. Charles Tower, Inc. v. Bd. of Zoning Appeals of Evansville-Vanderburgh

       Cty., 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.”
       Court of Appeals of Indiana | Opinion 19A-PL-457 | January 30, 2020         Page 10 of 23
       Id. We may not reverse the BZA’s decision “unless an error of law is

       demonstrated.” Schlehuser v. City of Seymour, 674 N.E.2d 1009, 1013 (Ind. Ct.

       App. 1996).


[17]   However, a review of the interpretation of a zoning ordinance is a question of

       law. Story Bed & Breakfast, LLP v. Brown Cty. Area Plan Comm’n, 819 N.E.2d 55,

       65 (Ind. 2004). The ordinary rules of statutory construction apply in

       interpreting the language of a zoning ordinance. Id. Generally, we review

       questions of law decided by an agency de novo. Huffman v. Office of Envtl.

       Adjudication, 811 N.E.2d 806, 809 (Ind. 2004).


[18]   The federal constitutional issue here arose during judicial review of the BZA’s

       decision against UJ-Eighty. There, the trial court determined that the City had,

       through the Ordinance, violated the Due Process Clause of the Fourteenth

       Amendment because the City had unlawfully delegated governmental authority

       to Indiana University without “provid[ing] a standard to control the

       University’s decision, nor d[id] it provide [UJ-Eighty] with a right to a review of

       the University’s decision.” (App. 201). Here, the BZA argues that the trial

       court erred and that its determination that there was no constitutional violation

       was correct. UJ-Eighty argues that the City’s delegation of governmental

       authority to Indiana University violated its due process rights because the

       Ordinance fails to set forth standards or relevant considerations to guide

       Indiana University. We agree with UJ-Eighty.




       Court of Appeals of Indiana | Opinion 19A-PL-457 | January 30, 2020     Page 11 of 23
[19]   The Fourteenth Amendment provides that “[n]o State shall . . . deprive any

       person of life, liberty, or property, without due process of law . . . .” U.S.

       Const. amend. 14, § 1. It guarantees both procedural and substantive due

       process rights. McIntosh v. Melroe Co., 729 N.E.2d 972, 975 (Ind. 2000).

       Substantive due process “bars certain arbitrary, wrongful government actions

       regardless of the fairness of the procedures used to implement them.” Zinermon

       v. Burch, 494 U.S. 113, 125 (1990) (quotation and citation omitted). In setting

       forth a claim for violation of substantive due process, a party must show either

       that the law infringes upon a fundamental right or liberties deeply rooted in our

       nation’s history or that the law does not bear a substantial relation to

       permissible state objectives. Washington v. Glucksberg, 521 U.S. 702, 720-21

       (1997); Moore v. City of East Cleveland, 431 U.S. 494, 499 (1977). Concerning

       procedural due process protections, the United States Supreme Court has

       explained that:


               identification of the specific dictates of due process generally
               requires consideration of three distinct factors: First, the private
               interest that will be affected by the official action; second, the risk
               of an erroneous deprivation of such interest through the
               procedures used, and the probable value, if any, of additional or
               substitute procedural safeguards; and finally, the Government’s
               interest, including the function involved and the fiscal and
               administrative burdens that the additional or substitute
               procedural requirement would entail.

       Mathews v. Eldridge, 424 U.S. 319, 335 (1976).

[20]   Below, the trial court found that the City had contravened the guarantees of due

       process by effectuating an improper delegation of legislative authority to

       Indiana University. In so holding, the trial court relied on the case of

       Court of Appeals of Indiana | Opinion 19A-PL-457 | January 30, 2020          Page 12 of 23
       Washington ex rel. Seattle Title Trust Co. v. Roberge, 278 U.S. 116 (1928). The

       BZA disputes the applicability of Roberge to the facts of the instant case.

       Conversely, UJ-Eighty asserts that when the City gave Indiana University

       authority over the ability of private landowners to use their property in a

       particular manner, it engaged in the same delegation of power held repugnant

       in Roberge.


[21]   In Roberge, the Supreme Court considered a Seattle ordinance that permitted the

       construction of a home for the elderly poor in a particular district only if two-

       thirds of the property owners within 400 feet of the proposed building site gave

       written consent. After acknowledging “the right of the [landowner] to devote

       its land to any legitimate use is property within the protection of the

       Constitution,” the Roberge Court struck down the ordinance. Id. at 121. The

       Roberge Court noted that the ordinance made the construction subject to the

       approval of third-party property owners “uncontrolled by any standard or rule

       prescribed by legislative action . . . .” Id. at 121–22. In addition to not being

       controlled by any standard or rule prescribed by legislative action, the

       ordinance made “no provision for review,” and left the city and the plaintiff

       “bound by the decision or inaction” of the property owners. Id. at 122. The

       property owners were “free to withhold consent for selfish reasons or

       arbitrarily,” and made the plaintiffs subject to their “will or caprice.” Id. The

       Roberge Court held that Seattle’s “delegation of power” to third-party property

       owners was “repugnant to the due process clause of the Fourteenth

       Amendment.” Id.

       Court of Appeals of Indiana | Opinion 19A-PL-457 | January 30, 2020        Page 13 of 23
[22]   Turning to the facts of this case, we are dealing with a similar abrogation of

       zoning responsibility “uncontrolled by any standard or rule prescribed by

       legislative action.” Id. at 122. The City, via its Ordinance, delegated to Indiana

       University the authority to decide whether a group of people will be recognized

       or sanctioned as members of a fraternity or sorority for purposes of determining

       whether a property owner complies with the Ordinance. Put differently, the

       City delegated its legislative authority to Indiana University to determine

       whether the Property was being used by students in a sanctioned fraternity.


[23]   Moreover, the City provided no mechanism for reviewing Indiana University’s

       decision. The Ordinance states that Indiana University may sanction or

       recognize the students as being members of a fraternity or sorority “through

       whatever procedures Indiana University uses to render such a sanction or

       recognition.” Bloomington Mun. Code. § 20.11.020. (emphasis added).

       Indeed, in Counceller, the other case relied upon by the trial court, a panel of this

       Court determined that ordinances abdicating planning authority without

       restriction are unconstitutional. See Counceller v. City of Columbus Plan Comm’n,

       42 N.E.3d 146, 150-51 (Ind. Ct. App. 2015), trans. denied. In that case, an

       ordinance required 75% of property owners in a subdivision to approve further

       subdivision of a lot within the subdivision. The Counceller Court distinguished

       Roberge and held that ordinance was not an improper delegation of authority

       because the planning commission possessed the power to waive the provision

       requiring the approval of the property owners. Id. at 151. Here, there is no

       such language. The City has not provided any means for a review of Indiana

       Court of Appeals of Indiana | Opinion 19A-PL-457 | January 30, 2020       Page 14 of 23
       University’s decision and both the City and property owners are bound by the

       university’s decision.


[24]   The BZA argues that the Ordinance was constitutional because Indiana

       University no longer sanctioned TKE as a fraternity for students attending

       Indiana University and that accordingly, UJ-Eighty could no longer lease the

       Property to TKE. In support, the BZA contends that “[c]odifying a

       requirement for university affiliation is not an impermissible delegation of

       zoning authority[.]” (BZA’s Br. 17). Rather, it “is a commonplace and precise

       way of describing which organizations qualify as fraternities or sororities.”

       (BZA’s Br. 17). The BZA’s justifications for this delegation of authority are

       unavailing. The Ordinance went beyond defining fraternities or sororities as

       “entities affiliated with universities.” (BZA’s Br. 15). The City gave the force

       of law to a determination by Indiana University, an entity other than “a board

       of zoning appeals” with “territorial jurisdiction over all land subject to the

       zoning ordinance[.]” See I.C. § 36-7-4-901(e).


[25]   Additionally, it should be noted that the amendment to the Ordinance is also

       clearly arbitrary and unreasonable; the amendment created a situation where

       the University was allowed to act, but UJ-Eighty would be punished. It is

       undisputed that UJ-Eighty took no affirmative action to violate the Ordinance.

       At oral argument, Counsel for the Appellant was asked to identify any

       affirmative action taken by UJ-Eighty to violate the Ordinance; he had no

       answer. UJ-Eighty had properly leased its property to a fraternal organization.

       See Bromley v. McCaughn, 280 U.S. 124, 140 (1929) (Sutherland, J., dissenting)

       Court of Appeals of Indiana | Opinion 19A-PL-457 | January 30, 2020       Page 15 of 23
       (the right to give property is as old as the right to use or possess property). It

       took no action to otherwise violate the ordinance. It was the University’s

       action (removing TKE from the list of sanctioned fraternities) which triggered

       the ordinance violation that the City sought to enforce against UJ-Eighty. As a

       result, allowing a third party to engage in actions, following whatever procedures

       it deems necessary, that trigger zoning violations against a property owner

       arbitrarily and unreasonably deprives the property owner of its due process

       rights under the Fourteenth Amendment. See Roberge, 278 U.S. 116.


[26]   Accordingly, we hold that the City, via its Ordinance, impermissibly delegated

       to Indiana University the authority to decide whether a group of people will be

       recognized or sanctioned as members of a fraternity or sorority for purposes of

       determining whether a property owner complies with the Ordinance, in

       violation of the Fourteenth Amendment. Therefore, we affirm the judgment of

       the trial court setting aside the BZA’s decision to uphold the issuance of the

       NOVs as unconstitutional and not in accordance with law.


[27]   Affirmed.


       Robb, J., concurs.


       Bailey, J., dissents with separate opinion.




       Court of Appeals of Indiana | Opinion 19A-PL-457 | January 30, 2020        Page 16 of 23
                                                    IN THE
           COURT OF APPEALS OF INDIANA

       City of Bloomington Board of                                Court of Appeals Case No.
       Zoning Appeals,                                             19A-PL-457

       Appellant,

               v.

       UJ-Eighty Corporation,
       Appellee.



       Bailey, Judge, dissenting.


[28]   The trial court declared the Ordinance facially invalid and struck down the

       definition of fraternity house in the Ordinance. The majority affirms this

       decision. Yet, there is a presumption in favor of constitutionality. Whistle Stop

       Inn, Inc. v. City of Indianapolis, 51 N.E.3d 195, 199 (Ind. 2016). Indeed, the

       Ordinance “stands before this Court clothed with the presumption of

       constitutionality until clearly overcome by a contrary showing.” Id. (quoting

       Paul Stieler Enters., Inc. v. City of Evansville, 2 N.E.3d 1269, 1273 (Ind. 2014)).

       Court of Appeals of Indiana | Opinion 19A-PL-457 | January 30, 2020                     Page 17 of 23
       Ultimately, to declare a law facially invalid, the challenger—in this case, UJ-

       Eighty—must have met the “heavy burden” of demonstrating there is “no set of

       circumstances under which the [law] can be constitutionally applied.” Meredith

       v. Pence, 984 N.E.2d 1213, 1218 (Ind. 2013) (quoting Baldwin v. Reagan, 715

       N.E.2d 332, 337 (Ind. 1999)). The majority strikes down the definition,

       concluding that UJ-Eighty met this considerable burden. I must disagree.


[29]   The majority declares the law facially invalid for failing to provide due process

       guaranteed by the Fourteenth Amendment to the U.S. Constitution. There are

       two types of due process: substantive due process and procedural due process.



                                   Substantive Due Process
[30]   In the context of zoning ordinances, substantive due process requires that a

       zoning ordinance bear a “rational relationship to permissible state objectives.”

       Moore v. City of E. Cleveland, Ohio, 431 U.S. 494, 498 (1977) (citing Vill. of Euclid,

       Ohio v. Ambler Realty Co., 272 U.S. 365 (1926)). Here, the Ordinance—which

       regulates housing for university students—rationally relates to the permissible

       objective of protecting students. Thus, the Ordinance satisfies the requirements

       of substantive due process. To the extent the majority characterizes the

       Ordinance as “clearly arbitrary and unreasonable” because “UJ-Eighty took no

       affirmative action to violate the Ordinance,” supra at 15, this case arose because

       UJ-Eighty chose to rent its property. Its tenants did not satisfy the definition in

       the Ordinance—and I discern nothing arbitrary or unreasonable about holding

       a landlord accountable for ensuring use of its property complies with the law.

       Court of Appeals of Indiana | Opinion 19A-PL-457 | January 30, 2020         Page 18 of 23
                                    Procedural Due Process
[31]   Turning to procedural due process, to determine what process is generally due

       under the Fourteenth Amendment, courts must consider the Eldridge factors:


               First, the private interest that will be affected by the official
               action; second, the risk of an erroneous deprivation of such
               interest through the procedures used, and the probable value, if
               any, of additional or substitute procedural safeguards; and
               finally, the Government’s interest, including the function
               involved and the fiscal and administrative burdens that the
               additional or substitute procedural requirement would entail.


       Mathews v. Eldridge, 424 U.S. 319, 335 (1976). Notably, the U.S. Supreme

       Court has explained that due process “does not require that ‘the procedures

       used to guard against an erroneous deprivation . . . be so comprehensive as to

       preclude any possibility of error.’” Walters v. Nat’l Ass’n of Radiation Survivors,

       473 U.S. 305, 320 (1985) (alteration in original) (quoting Mackey v. Montrym,

       443 U.S. 1, 13 (1979)). Moreover, the Court has “emphasized that the marginal

       gains from affording an additional procedural safeguard often may be

       outweighed by the societal cost of providing such a safeguard.” Id. at 321.



                                                 Delegation
[32]   Before discussing the Eldridge factors, I will note that the majority focuses on

       the concept of delegation, ultimately holding “that the City improperly

       delegated authority to Indiana University in violation of the Due Process

       Clause of the Fourteenth Amendment.” Supra at 3. Yet, in general, the U.S.

       Court of Appeals of Indiana | Opinion 19A-PL-457 | January 30, 2020         Page 19 of 23
       Constitution is not concerned with how a state goes about delegating powers

       reserved to it. Rather, whether and how there may be a delegation of state

       power is a question of state law. See Ind. Dep’t of Nat. Res. v. Newton Cty., 802

       N.E.2d 430, 432-35. Instead, the Fourteenth Amendment is concerned with

       whether the Ordinance provides adequate procedural protections. The purpose

       of these procedures is to safeguard against an erroneous deprivation, not to

       second-guess the channels of state authority. See Walters, 473 U.S. at 321

       (“Procedural due process rules are shaped by the risk of error inherent in the

       truth-finding process . . . .” (quoting Eldridge, 424 U.S. at 344)). Indeed, the

       touchstone of procedural due process is whether the process leading to the

       deprivation of a protected interest is fundamentally fair. See id. at 320-21.5


[33]   In any case, there was no delegation here. The City enacted the Ordinance,

       which sets forth a discernible definition for a fraternity house. The definition




       5
         To the extent the majority reads State of Washington ex rel. Seattle Title Tr. Co. v. Roberge, 278 U.S. 116 (1928),
       as commenting on delegation, that case is ultimately about arbitrary government action—not procedural due
       process. Thus, Roberge is germane to discussions about substantive due process, not the instant discussion.
       See Roberge, 278 U.S. at 122-23. Indeed, Roberge involved an ordinance that permitted lodging as many as
       sixty people, and was amended to specify that “[a] philanthropic home for children or for old people shall be
       permitted . . . when the written consent shall have been obtained of the owners of two-thirds of the property
       within four hundred (400) feet of the proposed building.” 278 U.S. at 118. The Court expressed concern
       that, on the one hand, the legislative body had “grant[ed] . . . permission for such building and use” while, on
       the other hand, the grant of permission “purport[ed] to be subject to [neighbor] consents.” Id. The Court
       determined that the structure of the ordinance “shows that the legislative body found that the construction
       and maintenance of the new home was in harmony with the public interest and with the general scope and
       plan of the zoning ordinance.” Id. In rejecting the ordinance, the Court did not disapprove of the neighbor-
       consent provision contained in the ordinance. See id. at 122 (discussing, distinguishing, and implicitly
       endorsing Thomas Cusack Co. v. City of Chicago, 242 U.S. 526 (1917), which upheld a neighbor-consent
       provision). Rather, the Court held that the neighbor-consent provision was unrelated to the police power,
       therefore, the provision was “arbitrary and repugnant to the due process clause.” Id. at 123. In other words,
       the constitutional defect was not that the ordinance contained a neighbor-consent provision. Instead, the
       defect was that the provision did not rationally relate to a permissible state objective. See id. at 121-23.

       Court of Appeals of Indiana | Opinion 19A-PL-457 | January 30, 2020                                   Page 20 of 23
       turns on whether Indiana University sanctioned the fraternity—a measurable

       standard. I therefore disagree with the majority’s conclusion that the City

       delegated power to Indiana University “to determine whether the Property was

       being used by students in a sanctioned fraternity.” Supra at 14. To the

       contrary, the City enacted the Ordinance—and the City decides whether use of

       the property complies with the Ordinance. Ultimately, there was no delegation.

       Moreover, there is no dispute that procedures are in place allowing a landlord

       like UJ-Eighty to challenge the City’s determination of non-compliance.



                                            Eldridge Factors
[34]   The majority identifies procedures that the Ordinance could have included—

       and it strikes down the Ordinance because of a lack of those procedures.

       Specifically, the majority concludes that the Ordinance should have “set forth

       standards or relevant considerations to guide Indiana University.” Supra at 11.

       The majority also concludes that the Ordinance should have included a

       “mechanism for reviewing Indiana University’s [sanctioning] decision.” Id. at

       14. The majority draws these procedures from dicta in Roberge, a 1928 decision

       handed down long before the U.S. Supreme Court adopted the Eldridge factors.


[35]   Although the majority identifies additional procedures, it does not apply all of

       the Eldridge factors. Indeed, the majority does not weigh the effectiveness of the

       additional procedures against the societal cost. See Eldridge, 424 U.S. at 335.

       Adhering to Eldridge, I would conclude that the proffered additional procedures



       Court of Appeals of Indiana | Opinion 19A-PL-457 | January 30, 2020     Page 21 of 23
       are not constitutionally required because they lack value—and any marginal

       gain would not outweigh the societal cost. See Walters, 473 U.S. 305 at 320-21.


                        Standards to Guide Indiana University
[36]   As to including “standards or relevant considerations to guide Indiana

       University,” supra at 11, Indiana University is a state educational institution,

       I.C. § 21-20-2-1. As such, it is bound to follow the U.S. Constitution and

       Indiana Constitution. UJ-Eighty failed to demonstrate how standards set by

       the City—as opposed to those adopted by Indiana University in view of its

       constitutional obligations—would better protect against erroneous deprivation.


                                           Review Procedure
[37]   As to a “mechanism for reviewing Indiana University’s decision,” supra at 14,

       this procedure would burden the City—requiring the expenditure of public

       resources on matters another arm of government already addressed. Further,

       although UJ-Eighty challenges only the portion of the Ordinance related to

       whether IU sanctioned the fraternity, the Ordinance also ties the definition of a

       fraternity house to whether all residents are “enrolled at the Indiana University

       Bloomington campus.” Bloomington Mun. Code § 20.11.020. Thus, applying

       the logic UJ-Eighty advances—and the majority adopts—the City must also

       undertake the considerable burden of reviewing Indiana University enrollment

       decisions. I cannot say that due process demands such a heavy societal cost.


[38]   The majority also focuses on language in the Ordinance permitting Indiana

       University to use “whatever procedures Indiana University uses” to sanction a
       Court of Appeals of Indiana | Opinion 19A-PL-457 | January 30, 2020      Page 22 of 23
       fraternity. Id. (emphasis added). The majority suggests that this open-ended

       procedural language invites Indiana University to make unfair sanctioning

       decisions—decisions that, in turn, unfairly affect a landlord like UJ-Eighty.

       However, the language must not be read out of context. Again, as a state

       university, Indiana University is bound to comply with the state and federal

       constitutions. I cannot say UJ-Eighty has demonstrated that the challenged

       language—read in context—creates a high risk of an erroneous deprivation.


[39]   Ultimately, due process requires procedures that are fundamentally fair.

       Walters, 473 U.S. at 320. Under the unique circumstances of this case—

       involving the interrelationship of independent arms of government that are

       protecting students in a university town—I would conclude UJ-Eighty failed to

       demonstrate that the Ordinance and its attendant procedures are deficient.


[40]   For these reasons, I respectfully dissent.




       Court of Appeals of Indiana | Opinion 19A-PL-457 | January 30, 2020     Page 23 of 23
