                                                                               Feb 12 2016, 7:47 am




ATTORNEY FOR APPELLANTS                                    ATTORNEYS FOR APPELLEES
Stephen L. Fink                                            CITY OF ANGOLA AND CITY OF
Barnes and Thornburg, LLP                                  ANGOLA PLAN COMMISSION
Fort Wayne, Indiana                                        Richard P. Samek, Esq.
                                                           Larry L. Barnard, Esq.
                                                           Carson Boxberger LLP
                                                           Fort Wayne, Indiana
                                                           ATTORNEY FOR APPELLEE TRINE
                                                           UNIVERSITY, INC.
                                                           Robert D. Moreland
                                                           Angola, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

David J. and Susan L.                                      February 12, 2016
MacFadyen,                                                 Court of Appeals Case No.
Appellants-Plaintiffs,                                     17A03-1506-CT-556
                                                           Appeal from the DeKalb Superior
        v.                                                 Court
                                                           The Honorable Kevin P. Wallace,
City of Angola, City of Angola                             Judge
Plan Commission, and Trine                                 Trial Court Cause No.
University, Inc.,                                          17D01-1203-CT-14
Appellees-Defendants.




May, Judge.




Court of Appeals of Indiana | Opinion 17A03-1506-CT-556 | February 12, 2016                   Page 1 of 7
[1]   David and Susan MacFadyen appeal a decision by the Angola Plan

      Commission to vacate a portion of an alley on Trine University property near

      the MacFadyens’ property. As the MacFadyens did not show they were

      aggrieved by the vacation, we affirm.


                                  Facts and Procedural History
[2]   The MacFadyens own lot 6 in J. Darling’s Addition to the City of Angola, and

      their property is contiguous to property Trine owns. An alley runs east to west

      from Darling Street, along the back of the MacFadyens’ lot, and through

      Trine’s property to University Avenue. The portion of the alley on Trine’s real

      estate is not improved; it is grass-covered, and there is no curb cut where the

      alley meets University Avenue.


[3]   Trine petitioned the Commission to vacate certain lot lines and the part of the

      alley that is on Trine’s real estate. The vacation petition did not include that

      part of the alley located behind the MacFadyens’ lot, and the MacFadyens can

      still access their property by using the remaining portion of the alley that runs

      east to Darling Street.


[4]   The Commission heard evidence that the value of the land in the platted area

      that Trine did not own would not be diminished by the vacation, and Trine’s

      development activities in the platted area had not caused a decrease in property

      values and might have increased them. David MacFadyen stated he believed

      vacation of the part of the alley on Trine’s property would have “substantial

      negative impact” on the value of his property because “[o]ne could drive west

      Court of Appeals of Indiana | Opinion 17A03-1506-CT-556 | February 12, 2016   Page 2 of 7
      through the alley all the way to College (now University), or turn southbound

      to access Gale Street. [Trine] now seeks to cut off this access.” (App. at 188.)


[5]   The Commission approved Trine’s petition.


                                        Discussion and Decision
[6]   Decisions of an area plan commission are subject to the same process of review

      as are local zoning decisions. Area Plan Comm’n, Evansville - Vanderburgh Cnty. v.

      Hatfield, 820 N.E.2d 696, 698 (Ind. Ct. App. 2005), trans. denied. Decisions of a

      zoning board are subject to court review by certiorari. Ind. Code § 36-7-4-1003.

      Only a person aggrieved 1 by a decision of the board may petition for certiorari



      1
         We note that effective July 11, 2011, about six months before the MacFadyens brought their petition for
      review, the legislature amended Ind. Code § 36-7-4-1003, which permits judicial review of plan commission
      decisions. The prior version of the statute said “Each person aggrieved by” such a decision could seek
      judicial review in the circuit or superior court where the affected premises was located. The amended version
      eliminated the “aggrieved” language and now says “Each decision . . . is subject to judicial review . . . in the
      same manner as that provided for the appeal of a final decision of the board of zoning appeals.”
      Ind. Code Ann. § 36-7-4-1603 provides standing to obtain judicial review of a zoning decision is afforded to
      (1) a person to whom the zoning decision is specifically directed or (2) a person aggrieved or adversely
      affected by the zoning decision.
      The MacFadyens do not argue there is no longer a requirement that a party be “aggrieved” or “prejudiced,”
      and we decline to hold the legislature’s modification of the statutory language reflects an intent to allow
      challenges by persons who are not aggrieved or prejudiced by a plan commission action. The threshold
      showing in order to prevail on appeal is a showing of prejudice. Cox v. Anderson, 801 N.E.2d 775, 779 (Ind.
      Ct. App. 2004). There we noted “our supreme court stated more than a century ago [that] a judgment will
      not be reversed unless the record shows affirmatively both error and that the error was ‘prejudicial to the
      party complaining.’” Id. (quoting Mathews v. Droud, 114 Ind. 268, 16 N.E. 599, 600 (1888). And see Dan
      Cristiani Excavating Co. v. Money, 941 N.E.2d 1072, 1078 (Ind. Ct. App. 2011) (noting any appeal of a trial
      court decision seeking reversal must show prejudice to the appellant).
      More specifically, we have continued to recognize that a party challenging a plan commission decision must
      be “aggrieved” by it. See, e.g., Dunmoyer v. Wells Cty., Indiana Area Plan Comm’n, 32 N.E.3d 785, 786 (Ind. Ct.
      App. 2015) (addressing “whether the trial court erred in granting partial summary judgment in favor of the
      Plan Commission and Apex upon a finding that Landowners were not aggrieved and not prejudiced by the
      Zoning Decision”), trans. dismissed.



      Court of Appeals of Indiana | Opinion 17A03-1506-CT-556 | February 12, 2016                         Page 3 of 7
      review by the courts. Hatfield, 820 N.E.2d at 698. In interpreting what it means

      to be “aggrieved” for purposes of the statute, our Supreme Court has said the

      person must experience a “substantial grievance, a denial of some personal or

      property right or the imposition of a burden or obligation.” Bagnall v. Town of

      Beverly Shores, 726 N.E.2d 782, 785 (Ind. 2000).


[7]   When reviewing a decision of a board of zoning appeals, the trial court must

      determine if the board’s decision was incorrect as a matter of law. Cook v.

      Adams Cnty. Plan Comm’n, 871 N.E.2d 1003, 1006 (Ind. Ct. App. 2007), trans.

      denied. The trial court may not conduct a trial de novo or substitute its decision

      for that of the board. Id. When reviewing a decision of a zoning board, we are

      bound by the same standard of review. S & S Enters., Inc. v. Marion Cnty. Bd. of

      Zoning Appeals, 788 N.E.2d 485, 489 (Ind. Ct. App. 2003), trans. denied. On

      appeal, however, to the extent the trial court’s factual findings were based on a

      paper record, we review the record de novo. Equicor Dev., Inc. v. The Westfield -

      Washington Twp. Plan Comm’n, 758 N.E.2d 34, 37 (Ind. 2001). It does not

      appear the trial court received additional evidence in this case.


[8]   When an aggrieved party seeks relief in court from an adverse administrative

      determination and attacks the evidentiary support for the agency’s findings, he

      bears the burden of demonstrating that the agency’s conclusions are clearly

      erroneous. Cundiff v. Schmitt Dev. Co., 649 N.E.2d 1063, 1066 (Ind. Ct. App.




      Court of Appeals of Indiana | Opinion 17A03-1506-CT-556 | February 12, 2016   Page 4 of 7
       1995). That standard requires great deference toward the administrative board

       when the petition challenges findings of fact or the application of the law to the

       facts. Id. But if the allegation is that the Commission committed an error of

       law, no such deference is afforded and reversal is appropriate if an error of law

       is demonstrated. Id.


[9]    There is a presumption that determinations of a zoning board, as an

       administrative agency with expertise in the area of zoning problems, are correct

       and should not be overturned unless they are arbitrary, capricious, or an abuse

       of discretion. Id. A decision is arbitrary, capricious, or an abuse of discretion if

       it is not supported by substantial evidence. Rice v. Allen Cnty. Plan Comm’n, 852

       N.E.2d 591, 597 (Ind. Ct. App. 2006), trans. denied. We may not reweigh the

       evidence or reassess the credibility of the witnesses. Burcham v. Metro. Bd. of

       Zoning Appeals Div. I of Marion Cnty., 883 N.E.2d 204, 213 (Ind. Ct. App. 2008).


[10]   We may not reverse because the MacFadyens were not “aggrieved” by the

       vacation of a part of the alley. 2 The trial court determined “the MacFadyens

       have not been deprived of access to Lot 6. In short, MacFadyens have now,

       just as they have had in the past, a means of ingress and egress to the rear of




       2
         The MacFadyens argue in their opening brief they have a property interest in the alley, but they do not
       explicitly argue they were “prejudiced” or aggrieved” by the vacation as required by Hatfield and Bagnall.
       They do assert in their reply brief that they were prejudiced, but that discussion is devoid of any legal
       authority in support of that allegation. We therefore decline to find error on that ground. See, e.g., Pierce v.
       State, 29 N.E.3d 1258, 1267 (Ind. 2015) (appellate argument must contain the contentions of the appellant on
       the issues presented supported by citations to legal authority). “A litigant who fails to support his arguments
       with appropriate citations to legal authority and record evidence waives those arguments for our review.” Id.

       Court of Appeals of Indiana | Opinion 17A03-1506-CT-556 | February 12, 2016                          Page 5 of 7
       their residence on Lot 6.” (App. at 15.) See State v. Kimco of Evansville, Inc., 902

       N.E.2d 206, 214 (Ind. 2009) (mere reduction in or redirection of traffic flow to a

       commercial property is not a compensable taking of a property right), reh’g

       denied, cert. denied.


[11]   In Bagnall, our Indiana Supreme Court determined the Bagnalls lacked standing

       to challenge zoning variances because they were not “aggrieved.” The Bagnalls

       challenged a petition brought by owners of property about 150 feet from the

       Bagnalls’ residence seeking a variance to permit an addition to the home

       located on the lot and a variance from an ordinance regarding well location and

       setback requirements. The Bagnall Court noted that to be aggrieved, a

       petitioner must experience a substantial grievance, a denial of some personal or

       property right, or the imposition of a burden or obligation. 726 N.E.2d at 786.

       A petitioner’s injury must be pecuniary in nature. Id. The Bagnalls “presented

       nothing in their petition nor did they enter any evidence in the record to suggest

       [the variances] would result in infringement of a legal right resulting in

       pecuniary injury.” Id.


[12]   The Commission received evidence the MacFadyens still had access to the rear

       of their property over the remaining portion of the alley and the value of their

       property was not diminished. We acknowledge the MacFadyens’ allegations to

       the contrary, but we may not reweigh that evidence. See Burcham, 883 N.E.2d

       at 213. We therefore cannot find they were aggrieved.




       Court of Appeals of Indiana | Opinion 17A03-1506-CT-556 | February 12, 2016   Page 6 of 7
                                                  Conclusion
[13]   As the MacFadyens were not prejudiced or aggrieved by a Commission

       decision that did not diminish the value of their property or deprive them of

       access to their real property via the alley in question, we affirm the vacation of

       that part of the alley on Trine’s property.


[14]   Affirmed.


       Najam, J., and Riley, J., concur.




       Court of Appeals of Indiana | Opinion 17A03-1506-CT-556 | February 12, 2016   Page 7 of 7
