                                                                                                FILED
                                                                                           May 23 2017, 8:47 am

                                                                                                CLERK
                                                                                            Indiana Supreme Court
                                                                                               Court of Appeals
                                                                                                 and Tax Court




      ATTORNEYS FOR APPELLANT                                  ATTORNEY FOR APPELLEES
      William Joseph Jenner                                    Mary J. Stotts
      David R. Sutter                                          Madison, Indiana
      Jenner, Pattison, Sutter & Wynn, LLP
      Madison, Indiana


                                                 IN THE
          COURT OF APPEALS OF INDIANA

      City of Madison, Indiana,                                May 23, 2017

      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               39A01-1602-MI-401
              v.                                               Appeal from the Jefferson Circuit
                                                               Court.
                                                               The Honorable W. Gregory Coy,
      William L. Demaree and Betty                             Special Judge.
      K. Demaree,                                              Cause No. 39C01-1103-MI-221
      Appellees-Plaintiffs.




      Sharpnack, Senior Judge


                                      Statement of the Case
[1]   The City of Madison appeals the trial court’s reversal of the Madison City

      Council’s denial of the Demarees’ application to rezone a piece of property.

      We reverse and remand with instructions to affirm the decision of the City

      Council.


      Court of Appeals of Indiana |Opinion 39A01-1602-MI-401| May 23, 2017                         Page 1 of 8
                                                     Issue
[2]   The City presents one question for our review: whether the trial court erred by

      reversing the City Council’s decision to deny the Demarees’ application to

      rezone and, in doing so, applied an incorrect standard of review.


                               Facts and Procedural History
[3]   The Demarees own real property in Madison, Indiana that is zoned R4

      (residential). In May 2010, they filed an application with the City of Madison

      Planning Commission seeking to rezone the property from R4 to GB (general

      business). The application was initially heard by five of the nine members of

      the Planning Commission on June 7, 2010, at which time the Planning

      Commission voted to give the application an unfavorable recommendation.

      The Demarees then appeared before the Madison City Council. The City

      Council asked the Demarees to return to the Planning Commission for a

      recommendation from the full board.


[4]   The Demarees’ application was tabled by the Planning Commission at both the

      August and September meetings. On October 4, 2010, the Demarees’

      application was heard by the Planning Commission and given a favorable

      recommendation.


[5]   On January 4, 2011, the Demarees’ application to rezone their property was

      given its first reading before the City Council. Some members of the City

      Council expressed concern about the rezoning request and requested additional

      information.

      Court of Appeals of Indiana |Opinion 39A01-1602-MI-401| May 23, 2017    Page 2 of 8
[6]   The request to rezone was given a second reading at the City Council meeting

      on January 18, 2011. At that meeting, the Council heard comments from

      residents and received a petition signed by residents opposing the rezoning.


[7]   A third reading of the rezoning request was held at the City Council meeting on

      February 8, 2011. The Council voted 5-2 against the Demarees’ request.


[8]   On March 9, 2011, the Demarees filed a complaint in the trial court requesting

      a reversal of the City Council’s decision. The City of Madison filed an answer,

      and the trial court issued an order on January 25, 2016, reversing the City

      Council’s decision and granting the Demarees’ application to rezone their

      property. The court issued a nunc pro tunc order on April 11, 2016. The City

      of Madison now appeals.


                                   Discussion and Decision
[9]   As a preliminary matter, we observe that the Demarees did not file an

      appellees’ brief. Where an appellee fails to file a brief, we do not undertake to

      develop arguments on that party’s behalf; rather, we may reverse upon a prima

      facie showing of reversible error by the appellant. Morton v. Ivacic, 898 N.E.2d

      1196, 1199 (Ind. 2008). Prima facie error is error “at first sight, on first

      appearance, or on the face of it.” Front Row Motors, LLC v. Jones, 5 N.E.3d 753,

      758 (Ind. 2014). This “prima facie error rule” relieves this Court from the

      burden of controverting arguments advanced for reversal, a duty which remains

      with the appellee. Simek v. Nolan, 64 N.E.3d 1237, 1241 (Ind. Ct. App. 2016).



      Court of Appeals of Indiana |Opinion 39A01-1602-MI-401| May 23, 2017           Page 3 of 8
[10]   The City contends that the trial court applied the wrong standard of review

       when it reviewed the City Council’s zoning decision. Rezoning is a legislative

       process. Borsuk v. Town of St. John, 820 N.E.2d 118, 122 (Ind. 2005). The

       decision whether to rezone a particular piece of property is a matter left to the

       sound discretion of the local legislative body. City of Crown Point v. Misty Woods

       Props., LLC, 864 N.E.2d 1069, 1075 (Ind. Ct. App. 2007).


[11]   There is no provision for an appeal of a local legislative body’s denial of a

       rezoning request. Bd. of Comm’rs of Cnty. of Vanderburgh v. Three I Props., 787

       N.E.2d 967, 976 (Ind. Ct. App. 2003). Rather, the procedure for review of such

       legislative action is to bring a suit for declaratory judgment or other similar

       attack. Id. Because the action is “legislative” and not “judicial” in nature, the

       reviewing court is much more limited in its scope of review. Id. Accordingly,

       review of a rezoning decision is limited to constitutionality, procedural

       soundness, and whether the decision is arbitrary or capricious. Borsuk, 820

       N.E.2d at 122. A rezoning decision is arbitrary and capricious if the legislative

       body engaged in willful and unreasonable action without consideration and in

       disregard of the facts or circumstances of the case. City of Crown Point, 864

       N.E.2d at 1075-76. Further, a reviewing court will not intervene in the local

       legislative process provided that it is supported by some rational basis. Id. at

       1076.


[12]   Here, in reversing the City Council’s decision, the trial court relied on statutes

       that are inapplicable to this case. Specifically, in its order the trial court cited

       Indiana Code section 34-13-6-4(a), (b), and (f) (1998) and Indiana Code section

       Court of Appeals of Indiana |Opinion 39A01-1602-MI-401| May 23, 2017          Page 4 of 8
       34-13-6-5(a) and (b) (1998). The whole of Indiana Code chapter 34-13-6 is

       inapplicable to this case because it concerns appeals from actions of

       municipalities where an appeal is allowed by statute. See Ind. Code § 34-13-6-1(a)

       (1998). As we have noted, there is no provision in our state statutes for an

       appeal of a legislative body’s denial of a rezoning request. See Bd. of Comm’rs of

       Cnty. of Vanderburgh, 787 N.E.2d at 976.


[13]   Moreover, although we have determined that, as a whole, Indiana Code

       chapter 34-13-6 is inapplicable to this case, we specifically note the

       inapplicability of Indiana Code section 34-13-6-4(b). This statute provides for a

       de novo standard of review for appeals under this chapter, and the trial court

       cited this statute as its basis for a de novo review of the Demarees’ rezoning

       request. This is incorrect. The standard to be applied to the review of a

       rezoning determination is whether the decision is arbitrary or capricious. See

       Borsuk, 820 N.E.2d at 122.


[14]   We now turn to whether the City Council’s decision in denying the Demarees’

       rezoning request was arbitrary and capricious. In reviewing that decision, we

       are mindful of the factors to be considered. Indiana Code section 36-7-4-603

       (1986) provides:


               In preparing and considering proposals [regarding rezoning], the
               plan commission and 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 |Opinion 39A01-1602-MI-401| May 23, 2017         Page 5 of 8
               (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.
[15]   At their June 7 meeting, the Planning Commission received information on and

       discussed the area’s traffic volume, drainage issues, privacy issues, and property

       values.


[16]   In October, the Planning Commission considered the presentation of the

       Demarees’ counsel as well as the concerns of residents. The Commission heard

       and contemplated evidence of the character of current structures in the area,

       issues concerning traffic ingress and egress, the best use of the property, traffic

       congestion, property values, the comprehensive plan for the area, drainage

       issues, and privacy issues.


[17]   At the City Council Meeting on January 4, 2011, the city attorney discussed the

       statutory procedure regarding the Council’s consideration of a zoning

       amendment. In addition, drawings and cost estimates were requested for

       studies that were done on the intersection at the affected area, and the

       Demarees’ application to rezone was given its first reading.


[18]   The City Council met on January 18, 2011, at which time the application to

       rezone was given its second reading. Counsel for the Demarees made a

       statement in which she addressed the character of the structures in the affected

       area and the comprehensive plan of the area. Residents spoke of their concerns


       Court of Appeals of Indiana |Opinion 39A01-1602-MI-401| May 23, 2017        Page 6 of 8
       of having a business or businesses in the immediate area of their residential

       properties, not the least of which were traffic congestion, a dangerous

       intersection, and business traffic flowing through the residential area. The

       Council was also presented with a petition signed by residents against the

       rezoning. The Council deliberated these issues as they were raised by the

       interested parties.


[19]   The Demarees’ rezoning request was given its third reading at the February 8

       City Council meeting, and the Council voted to deny the Demarees’ request.

       Prior to voting, one Council member addressed those present and stated that his

       vote was primarily based on traffic safety in the area.


[20]   Thus, the evidence indicates the Planning Commission and the City Council

       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.

       The balancing of these factors suggested to the City Council that this rezoning

       was not appropriate. These concerns provide a rational basis for the City of

       Madison’s decision to deny the Demarees’ rezoning application, and therefore

       it is not arbitrary and capricious.


                                                 Conclusion
[21]   For the reasons stated, we conclude the trial court applied an incorrect standard

       of review to the decision of the City Council and erred by reversing the City

       Council’s decision to deny the Demarees’ application to rezone. We reverse



       Court of Appeals of Indiana |Opinion 39A01-1602-MI-401| May 23, 2017      Page 7 of 8
       the trial court and remand with instructions to affirm the decision of the City

       Council denying the request to rezone.


[22]   Reversed and remanded with instructions.


       Crone, J., and Brown, J., concur.




       Court of Appeals of Indiana |Opinion 39A01-1602-MI-401| May 23, 2017      Page 8 of 8
