                                                                     Aug 19 2015, 8:26 am




      ATTORNEYS FOR APPELLANT                               ATTORNEY FOR APPELLEE
      Michael L. Carmin                                     John A. Stroh
      Gregory A. Bullman                                    Sharpnack Bigley Stroh & Washburn LLP
      CarminParker, PC                                      Columbus, Indiana
      Bloomington, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      John Counceller,                                           August 19, 2015

      Appellant-Petitioner,                                      Court of Appeals Case No.
                                                                 03A05-1503-PL-127

              v.                                                 Appeal from the Bartholomew
                                                                 Circuit Court
                                                                 The Honorable James D. Worton,
      City of Columbus Plan                                      Special Judge
      Commission,                                                Trial Court Cause No. 03C01-1408-
      Appellee-Respondent.                                       PL-3420




      Bradford, Judge.



                                           Case Summary
[1]   In 1999, Appellant-Petitioner John Counceller submitted the first of four

      applications to subdivide his lot in the Indian Hills Estates (“the Lot”) in

      Columbus. The first two were withdrawn prior to action by Appellee-


      Court of Appeals of Indiana | Opinion 03A05-1503-PL-127 | August 19, 2015              Page 1 of 11
      Respondent City of Columbus Plan Commission (“the Commission”). In 2013,

      Counceller again requested to subdivide the Lot, and the Columbus Plat

      Committee (“the Plat Committee”) granted primary approval to the

      application. Although no objection was filed to this approval, Counceller never

      acted on it, and it expired. The first three applications were to subdivide the

      Lot into two lots.


[2]   In 2014, Counceller again submitted an application that he be allowed to

      subdivide the Lot, this time into three lots, and the Plat Committee again

      granted primary approval to the request. When notified of the Plat

      Committee’s approval, all or almost all of the other property owners in Indian

      Hills Estates objected. Citing a Columbus ordinance that requires 75% of

      property owners in a subdivision to approve a further subdivision of one of the

      lots, the Commission ultimately rejected Counceller’s application. Counceller

      argues that the Commission should be estopped from relying on the 75%

      requirement and that it improperly abdicated its responsibility to exercise

      exclusive control of the subdivision of land to Counceller’s neighbors. We

      affirm.



                             Facts and Procedural History
[3]   Columbus has had three subdivision control ordinances, the first in effect from

      1949 to 1968, the second from 1968 to 1982, and the third from 1982 to the

      present. Indian Hills Estates was platted in 1962 and, although not within

      Columbus city limits at the time, was subject to Columbus’s subdivision control

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ordinance and has since been annexed in any event. Section 16.24.225 of the

current subdivision control ordinance (“Section 225”), governing the

resubdivision of land, provides as follows:


        Section 16.24.225 Resubdivision of land
        A.       Procedure for Resubdivision. Whenever a land owner
                 desires to resubdivide an already approved major
                 subdivision plat, the land owner shall apply for the
                 resubdivision using the same procedure prescribed for the
                 subdivision of land.
        B.       For any resubdivision where the proposed changes may
                 have an impact on the existing subdivision, the application
                 shall include the signed consent of 75% of the owners of
                 property in the existing subdivision. Such changes include
                 the following:
                 1.       Any change in street circulation pattern or other
                          significant change in a public improvement;
                 2.       The addition of one or more buildable lots;
                 3.       Any change in the amount of land reserved for
                          public use or the common use by lot owners;
                 4.       Any other change which would have an adverse
                          effect on the use and enjoyment of property in the
                          existing subdivision.
        C.       The staff shall make a determination as to whether a
                 proposed change will have a significant impact as defined
                 in Subsection B. The staff decision may be appealed to the
                 Commission.
        D.       Waiver. A property owner may request a waiver from the
                 requirements of Subsection B. The Commission may
                 waive the requirement for the consent of 75% of the
                 property owners in the subdivision if it finds that the
                 proposed change will not have a significant impact on the
                 existing subdivision. The Commission, after receiving an
Court of Appeals of Indiana | Opinion 03A05-1503-PL-127 | August 19, 2015      Page 3 of 11
                       application for resubdivision that includes an express
                       request for waiver, shall consider the request after a public
                       hearing. Notice of the hearing shall be given to interested
                       parties as defined in the Rules of Procedure.
              E.       Covenants. Any new lots created by a resubdivision shall
                       be subject to any covenants and restrictions that applied to
                       the original subdivision plat.
              F.       This section shall not apply to land or parcels shown and
                       clearly labeled on the preliminary or final plat as reserved
                       or intended for future development. (Ord. No. 24, 1999,
                       §3, 9-7-99)
      COLUMBUS, IND., SUBDIVISION CONTROL ORDINANCE 16.24.225 (1999).


[4]   Counceller owns the Lot in Indian Hills Estates. The Lot consists of

      approximately 3.26 acres, while the average lot size in Indian Hills Estates is

      approximately 2.26 acres. In 1999 and 2010, Counceller submitted applications

      to the Commission to subdivide the Lot into two lots. In 2013, Counceller

      again submitted an application to subdivide the lot in two, which request was

      approved by the Plat Committee on October 24, 2013. Counceller did not

      execute the approval and it expired in January of 2014.


[5]   On March 10, 2014, Counceller filed a fourth application to resubdivide the

      Lot, this time into three lots, with proposed areas of approximately 1 acre, 1.06

      acres, and 1.26 acres. On March 20, 2014, the Plat Committee approved

      Counceller’s application. Public notice of the Plat Committee’s approval was

      provided on May 23, 2014. On May 30, 2014, the Columbus Planning

      Department received an appeal of the Plat Committee’s approval, which appeal

      was filed by Counceller’s neighbors Mark Elwood and Angie May and

      Court of Appeals of Indiana | Opinion 03A05-1503-PL-127 | August 19, 2015       Page 4 of 11
      approved by all or almost all of the other property owners of Indian Hills

      Estates.


[6]   On July 9, 2014, the Commission met, conducted a hearing, and voted to deny

      Counceller’s request to resubdivide on the basis that it did not receive the

      consent of 75% of the other property owners in Indian Hills Estates. On August

      1, 2014, Counceller petitioned for judicial review of the Commission’s decision

      in Bartholomew Circuit Court, arguing that the Commission should be

      estopped from enforcing the 75% requirement of Section 225 and that the

      Commission improperly abdicated its authority to Counceller’s neighbors. On

      February 26, 2015, the trial court denied Counceller’s petition.


                                  Discussion and Decision
                                                 I. Estoppel
[7]   Counceller contends that the Commission should be estopped from denying his

      request to resubdivide the Lot.


              The doctrine of equitable estoppel requires three elements: “(1)
              lack of knowledge and of the means of knowledge as to the facts
              in question, (2) reliance upon the conduct of the party estopped,
              and (3) action based thereon of such a character as to change his
              position prejudicially.” Hannon v. Metropolitan Development
              Comm’n, 685 N.E.2d 1075, 1080-81 (Ind. Ct. App. 1997). [T]he
              general rule [is] that a governmental entity cannot be estopped by
              the unlawful acts of public officials. Cablevision of Chicago v. Colby
              Cable Corp., 417 N.E.2d 348, 354 (Ind. Ct. App. 1981). However,
              this prohibition is not absolute. Id. at 356. This court has
              recognized equitable estoppel can be applied against a
              governmental entity when “the public interest” will be
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               threatened. Advisory Board of Zoning Appeals of Hammond v.
               Foundation for Comprehensive Mental Health, Inc., 497 N.E.2d 1089,
               1092 (Ind. Ct. App. 1986); see also Cablevision of Chicago, 417
               N.E.2d at 357.…
               “Estoppel cannot be applied when the facts are equally known or
               accessible to both parties.” Comprehensive Mental Health, 497
               N.E.2d at 1093. [P]roperty owners [are] charged with knowledge
               of the applicable subdivision ordinance[.] Board of Zoning Appeals
               v. Leisz, 702 N.E.2d 1026, 1030 (Ind. 1998)[.]
      Johnson Cnty. Plan Comm’n v. Tinkle, 748 N.E.2d 417, 419-20 (Ind. Ct. App.

      2001).


[8]   Counceller argues essentially that the Commission should be estopped from

      enforcing because nobody with the Plat Committee or planning staff told him

      that he was required to have consent of 75% of the other property owners in

      Indian Hills Estates. Consequently, Counceller’s argument continues, his

      ignorance of the 75% requirement caused him to allow his third resubdivision

      application to lapse to his detriment.


[9]   At the very least, however, Counceller has failed to establish the first element of

      his estoppel claim: a lack of knowledge of the provisions of Section 225 or the

      means to acquire that knowledge. To the extent that Counceller argues that he

      was unaware of the 75% requirement and that the Commission was under some

      obligation to inform him of it, it is well-settled that “[p]roperty owners are

      charged with knowledge of ordinances that affect their property.” Story Bed &

      Breakfast, LLP v. Brown Cnty. Area Plan Comm’n, 819 N.E.2d 55, 64 (Ind. 2004).




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               As a general rule, equitable estoppel will not be applied against
               governmental authorities. Id. Our courts have been “hesitant to
               allow an estoppel in those cases where the party claiming to have
               been ignorant of the facts had access to the correct information.”
               [Cablevision of Chicago, 417 N.E.2d at 355]. The State will not be
               estopped in the absence of clear evidence that its agents made
               representations upon which the party asserting estoppel relied.
               Indiana Dep’t of Envtl. Mgmt. v. Conard, 614 N.E.2d 916, 921 (Ind.
               1993). However, “estoppel may be appropriate where the party
               asserting estoppel has detrimentally relied on the governmental
               entity’s affirmative assertion or on its silence where there was a
               duty to speak.” Equicor Dev. v. Westfield-Washington Township, 758
               N.E.2d 34, 39 (Ind. 2001).
       Id. at 67.


[10]   Simply put, pursuant to Story Bed & Breakfast, Counceller is charged with

       knowledge of the provisions of Section 225, and Counceller makes no claim

       that the Commission or any related entity made any representations that they

       would not be enforced in his case. In the absence of any evidence of an

       affirmative assertion (or silence when there was a duty to speak), Counceller’s

       estoppel claim must fail.


[11]   Counceller is essentially arguing that the Commission’s alleged failure to

       enforce Section 225’s 75% requirement in his previous three resubdivision

       applications should be taken as an assertion that it would not be enforced in his




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       fourth.1 As the Commission points out, however, the previous three

       applications apparently never got to the point where the 75% requirement

       became an issue. In 1999 and 2010, Counceller withdrew the applications

       before the Commission took any action on them. In 2013, the 75% requirement

       did not arise because none of the other property owners in Indian Hills Estates

       objected when given notice of the Plat Committee’s approval of Counceller’s

       application. Indeed, according to Columbus Planning Director Jeff Bergman,

       Section 225’s 75% requirement had never been an issue because, to the best of

       his knowledge, no resubdivision request had ever been objected to. (Appellant’s

       App. 138). We conclude that a more accurate way of characterizing the record

       would be to say that Section 225’s 75% requirement simply never arose in

       Counceller’s previous three applications. In our view, this cannot be taken as

       an assertion that Section 225 would not be enforced in the fourth.


[12]   Additionally, Counceller’s request that we draw parallels between all four of his

       resubdivision requests is misguided because he did not request the same thing in

       all four. As previously mentioned, Counceller requested the first three times to

       resubdivide the Lot into two, but the fourth time requested to resubdivide it into




       1
          Counceller did not submit any written consent with his resubdivision application, as required by the plain
       language of Section 225, and yet the Commission did not reject his application and the Plat Committee gave
       it primary approval. Counceller suggests that this should be taken as an admission that the consent of the
       other property owners would not be required. We disagree. Columbus Planning Director Jeff Bergman
       testified that “[t]he way the Plat Committee is set up is the notification happens after the [primary] approval.”
       Appellant’s App. p. 94. We do not believe that the Commission’s and Plat Committee’s willingness to allow
       Counceller’s application to proceed despite its noncompliance with Section 225 falls short of an affirmative
       indication that the 75% requirement would not be enforced.

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       three lots. Even assuming, arguendo, that Counceller had a right to expect that a

       fourth, identical request for resubdivision would be treated the same as the

       previous three by the Commission, the fourth request was not, in fact, identical.

       Because Counceller failed to establish that was denied the means to gain

       knowledge of the 75% requirement, the trial court did not err in concluding that

       the Commission was estopped from denying Counceller’s application.


                                              II. Abdication
[13]   Counceller also argues that the Commission impermissibly abdicated its

       authority to approve or disapprove of plats within Columbus to his neighbors.

       Counceller maintains that Section 225 is an impermissible “neighborhood veto”

       ordinance that grants unrestricted power to his neighbors to withhold their

       consent to his resubdivision, even for selfish, arbitrary, or discriminatory

       reasons. Counceller is correct that such provisions have been held to be

       unconstitutional. See, e.g., State of Washington ex rel. Seattle Title Trust Co. v.

       Roberge, 49 S. Ct. 50, 52 (1928) (“The section purports to give the owners of less

       than one-half the land within 400 feet of the proposed building authority—

       uncontrolled by any standard or rule prescribed by legislative action-to prevent

       the trustee from using its land for the proposed home. The superintendent is

       bound by the decision or inaction of such owners. There is no provision for

       review under the ordinance; their failure to give consent is final. They are not

       bound by any official duty, but are free to withhold consent for selfish reasons

       or arbitrarily and may subject the trustee to their will or caprice. The delegation



       Court of Appeals of Indiana | Opinion 03A05-1503-PL-127 | August 19, 2015      Page 9 of 11
       of power so attempted is repugnant to the due process clause of the Fourteenth

       Amendment.”) (citation omitted).


[14]   Section 225 is easily distinguished from provisions such as that at issue in

       Roberge. Section 225 does not give unrestricted power to Counceller’s

       neighbors, in that it provides an applicant with a means to obtain a waiver to

       the 75% requirement. Subsection D of Section 225 provides as follows:


               Waiver. A property owner may request a waiver from the
               requirements of Subsection B. The Commission may waive the
               requirement for the consent of 75% of the property owners in the
               subdivision if it finds that the proposed change will not have a
               significant impact on the existing subdivision. The Commission,
               after receiving an application for resubdivision that includes an
               express request for waiver, shall consider the request after a
               public hearing. Notice of the hearing shall be given to interested
               parties as defined in the Rules of Procedure.
[15]   So long as a person seeking to resubdivide can establish to the Commission’s

       satisfaction that the proposed change will not have a significant impact on the

       subdivision, a waiver may be obtained, thus taking the neighbors completely

       out of the equation. Section 225 did not confer unrestricted power to

       Counceller’s neighbors.


[16]   While Counceller acknowledges the waiver provision, he argues that he had

       “zero opportunity to request a waiver” pursuant to Subsection 225(D).

       Appellant’s Br. p. 39. The record does not support this contention. As

       previously mentioned, Counceller is charged with knowledge of the ordinances

       that affect the Lot, see Story Bed & Breakfast, 819 N.E.2d at 64, and Subsection


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       225(D) specifically contemplates that a waiver request be submitted with the

       resubdivision application. Counceller, however, did not request a waiver with

       his application. Additionally, Counceller had many other reasonable

       opportunities to request a waiver, even if one assumes that he was unaware

       initially that he could do so. Counceller does not deny that he received notice

       of his neighbors’ appeal, which was filed on May 30, 2014, over one month

       before the Commission meeting at which the appeal was heard. The appeal

       identifies its basis as the failure of Counceller to obtain the consent of 75% of

       property owners in Indian Hills Estates and contains the waiver language of

       Subsection D. Despite this notice, Counceller did not request a waiver prior to

       or during the hearing on the appeal. A more reasonable interpretation of the

       record is that, for whatever reason, Counceller chose not to request a waiver,

       which is not the same thing as being denied the opportunity. We conclude that

       Section 225 does not impermissibly abdicate the Commission’s authority to

       Counceller’s neighbors.


[17]   The judgment of the trial court is affirmed.


       May, J., and Crone, J., concur.




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