                                                                        FILED
                                                                    Aug 11 2017, 7:45 am

                                                                        CLERK
                                                                    Indiana Supreme Court
                                                                       Court of Appeals
                                                                         and Tax Court




ATTORNEYS FOR APPELLANTS                                   ATTORNEY FOR APPELLEES

Jeffrey M. Bellamy                                         S. Gregory Zubek
Stephen R. Donham                                          Whitham, Hebenstreit & Zubek,
Thrasher Buschmann & Voelkel, P.C.                         LLP
Indianapolis, Indiana                                      Indianapolis, Indiana




                                            IN THE
    COURT OF APPEALS OF INDIANA

Metropolitan Board of Zoning                               August 11, 2017
Appeals Division III of Marion                             Court of Appeals Case No.
County, Indiana, and Three Mile                            49A04-1703-PL-554
Properties, Inc., (s/k/a Three                             Appeal from the Marion Superior
Mile Properties–Gurpreet                                   Court
Singh),                                                    The Honorable John F. Hanley,
Appellants-Respondents,                                    Judge
                                                           Trial Court Cause No.
        v.                                                 49D11-1602-PL-5766

Traders Point Association of
Neighborhoods, Kenneth F.
Zahora (TRS), Cherie L. Zahora
(TRS), Michael L. Wigginton,
Linda McElwrath, Traders
Pointe Neighborhood
Association, Inc., Marco A.
Caccamo, and Metropolitan
School District of Pike
Township,


Court of Appeals of Indiana | Opinion 49A04-1703-PL-554 | August 11, 2017                   Page 1 of 13
      Appellees-Petitioners.




      Bradford, Judge.



                                           Case Summary
[1]   On March 9, 2015, Gurpreet Singh, in his position as a principal and the

      registered agent of Appellant-Respondent Three Mile Properties, Inc. (“Three

      Mile”), filed an application for an Improvement Location Permit (“ILP”).

      Specifically, Singh sought permission to build a gas station and convenience

      store on certain real estate located in the City of Indianapolis (“the City”). The

      real estate was zoned “C-3” which allows for such businesses. Upon review of

      Singh’s March 9, 2015 application (“the Application”), the City’s Department

      of Code Enforcement (“DCE”) issued ILP number 15-00384, granting

      permission for the proposed development. On February 16, 2016, Appellant-

      Respondent the Metropolitan Board of Zoning Appeals (“the BZA”) upheld the

      issuance of ILP 15-00384.


[2]   Petitioners-Appellees Traders Point Association of Neighborhoods, Kenneth F.

      Zahora (TRS), Cherie L. Zahora (TRS), Michael L. Wigginton, Linda

      Court of Appeals of Indiana | Opinion 49A04-1703-PL-554 | August 11, 2017   Page 2 of 13
      McElwrath, Traders Pointe Neighborhood Association, Inc., Marco A.

      Caccamo, and Metropolitan School District of Pike Township (collectively,

      “the Appellees”) appealed the BZA’s decision to the trial court. On February

      28, 2017, the trial court reversed the decision of the BZA. Three Mile appealed,

      arguing that the trial court erred in reversing the decision of the BZA. Because

      we agree with Three Mile, we reverse the judgment of the trial court and

      reinstate the decision of the BZA.



                             Facts and Procedural History
[3]   Three Mile was incorporated in October of 2014 by Gurpreet and Shiv Pal

      Singh. Gurpreet and Shiv Pal serve as principals of Three Mile and Gurpreet

      serves as Three Mile’s registered agent.


[4]   On November 19, 2014, Three Mile entered into a land contract (“the Land

      Contract”) to purchase a parcel “commonly known as 8562 Lafayette Road,

      Indianapolis, Indiana 46278” (“the Property”) from Linda Ryan.1 Appellants’

      App. Vol. II, pp. 79-90. Both Gurpeet and Shiv Pal signed the contract on

      behalf of Three Mile. The Land Contract was subsequently recorded in the

      Marion County Recorder’s Office on November 26, 2014.




      1
        Linda’s daughter, Holly Bzezinski, submitted a letter dated December 7, 2015, to the BZA in which she
      indicated that Linda had “recently passed away,” that she was Linda’s heir, and that “neither [Holly’s]
      mother nor her heirs considered themselves owners of the [P]roperty after [the Land Contract] was executed
      and [the] payments made.” Appellants’ App. Vol. II, p. 113.

      Court of Appeals of Indiana | Opinion 49A04-1703-PL-554 | August 11, 2017                      Page 3 of 13
[5]   On March 9, 2015, the Application for an ILP was filed. The Application listed

      Gurpreet as the “Owner” and was signed by Michael Cope. 2 Appellants’ App.

      Vol. II, p. 41. Various other related applications list either Gurpreet or Three

      Mile as the owner of the Property.


[6]   On April 20, 2015, while the Application was pending, the Indianapolis City-

      County Council (“the City Council”) approved an ordinance that would

      prohibit new permits for being issued for gasoline service stations or

      convenience markets in C-3 zoning districts pending an amendment to the

      Marion County zoning code or June 1, 2016, whichever was earlier (“the

      Moratorium Ordinance”). The Moratorium Ordinance was approved and

      signed by the Mayor of Indianapolis on April 29, 2015.


[7]   The Application was subsequently approved and on June 23, 2015, ILP number

      15-00384, which granted permission for the proposed development, was issued

      to “Three Mile Property–Gurpreet Singh.” Appellants’ App. Vol. II, p. 112.

      The Appellees then appealed the issuance of the ILP to the BZA. Following its

      review of the matter, the BZA issued the following:

                BASED ON THE EVIDENCE SUBMITTED THE
                PETITIONER FAILED TO MEET ITS BURDEN OF PROOF
                TO SHOW THAT IMPROVEMENT LOCATION PERMIT
                NO. ILP 15-00384 WAS ISSUED IN ERROR. The subject site
                is zoned C-3, a zoning designation which at the time [the]
                application was made for ILP 15-000384, permitted a gas station



      2
          It appears that Cope was an architect working on the project with Gurpreet and Three Mile.


      Court of Appeals of Indiana | Opinion 49A04-1703-PL-554 | August 11, 2017                        Page 4 of 13
              and convenience store by right, without the need for any variance
              of use. The proposed gas station and convenience store meets all
              development standards of the Commercial Zoning Ordinance for
              C-3 zoned property. ILP 15-00384 was properly issued.

                                                  DECISION

              IT IS THEREFORE the decision of this body that this
              ADMINISTRATIVE APPEAL petition is DENIED.

              Adopted this 16th day of February, 2016.


      Appellants’ App. Vol. II, p. 120.


[8]   The Appellees next appealed the BZA’s decision to the trial court. The trial

      court acknowledged the Land Contract but nonetheless concluded that “[a]t the

      time the ILP was filed in March 2015, neither Gurpreet Singh nor Michael

      Cope was the owner or lessee of the [P]roperty at 8562 Lafayette Road.”

      Appellants’ App. Vol. II, p. 18. The trial court further concluded that

      Application was not complete and that the BZA “committed a fundamental

      error in law in denying the appeal of the grant of the ILP in this case because

      neither [Gurpreet] nor Cope was the owner of the Property.” Appellants’ App.

      Vol. II, p. 18. Because the Application was not complete when filed, the trial

      court also concluded that the Moratorium Ordinance applied to the

      Application. Given these conclusions, the trial court ordered the following:


              IT IS THEREFORE ORDERED ADJUDGED AND
              DECREED that:

              1. The decision of the BZA denying the appeal of the grant of
              ILP l5-00384 to Three Mile Properties – Gurpreet Singh

      Court of Appeals of Indiana | Opinion 49A04-1703-PL-554 | August 11, 2017   Page 5 of 13
                 (a) was arbitrary, capricious, an abuse of discretion
                 and otherwise not in accordance with law including
                 the ordinance requiring that an application for an
                 improvement location permit be made by the owner
                 (or owner’s authorized agent) because

                          (i) Gurpreet Singh was not the owner;
                          and/or
                          (ii) Three Mile Properties, Inc. is not
                          Gurpreet Singh; and/or
                          (iii) Three Mile Properties, Inc. is not
                          an owner within the definition of
                          “owner” as set out by the applicable
                          legislative body, the City County
                          Council; and

                 (b) was contrary to ordinance and unsupported by
                 substantial evidence for the following reasons:

                          (i) Gurpreet Singh was not the owner;
                          and/or
                          (ii) Three Mile Properties, Inc. is not
                          Gurpreet Singh; and/or
                          (iii) Three Mile Properties, Inc. is not
                          an owner within the definition of
                          “owner” as set out by the applicable
                          legislative body, the City County
                          Council.

        2. The action of the BZA is set aside, this cause is remanded to
        the BZA for action consistent with the Findings and Conclusions
        set out herein and the BZA is ordered to reverse, rescind and/or
        otherwise vacate the grant of ILP l5-00384 to Three Mile
        Properties – Gurpreet Singh.


Appellants’ App. Vol. II, pp. 19-20. This appeal follows.



Court of Appeals of Indiana | Opinion 49A04-1703-PL-554 | August 11, 2017   Page 6 of 13
                                   Discussion and Decision
[9]    Three Mile contends that the trial court erred in overturning the determination

       of the BZA. Specifically, Three Mile argues that the trial court erroneously

       determined that the Application was not complete when filed on March 9,

       2015. Three Mile also argues that the trial court erroneously determined that

       the Moratorium Ordinance, which was approved by the City Council on April

       20, 2015 and signed by the Mayor on April 29, 2015, applied to the

       Application. We agree with Three Mile.


                                       I. Standard of Review
[10]   “This court and the trial court are bound by the same standards when reviewing

       the decision of a board of zoning appeals.” Town of Munster Bd. of Zoning

       Appeals v. Abrinko, 905 N.E.2d 488, 491 (Ind. Ct. App. 2009). Indiana Code

       section 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.




       Court of Appeals of Indiana | Opinion 49A04-1703-PL-554 | August 11, 2017    Page 7 of 13
       “The burden of demonstrating the invalidity of a zoning decision is on the party

       to the judicial review proceeding asserting invalidity.” Ind. Code § 36-7-4-

       1614(a).


[11]           In reviewing an administrative decision, a trial court may not try
               the facts de novo or substitute its own judgment for that of the
               agency. [S & S Enterprises, Inc. v. Marion Cty. Bd. of Zoning Appeals,
               788 N.E.2d 485, 490 (Ind. Ct. App. 2003), trans. denied].
               “Neither the trial court nor the appellate court may reweigh the
               evidence or reassess the credibility of witnesses.” Id. Reviewing
               courts must accept the facts as found by the zoning board. Id.


       Hoosier Outdoor Advert. Corp. v. RBL Mgmt., Inc., 844 N.E.2d 157, 163 (Ind. Ct.

       App. 2006), trans. denied. Questions of law generally decided by an agency de

       novo. Id. (citing Huffman v. Office of Envtl. Adjudication, 811 N.E.2d 806, 809

       (Ind. 2004)).


               However, an agency’s construction of its own ordinance is
               entitled to deference. See Story Bed & Breakfast, LLP v. Brown
               County Area Plan Comm’n, 819 N.E.2d 55, 66 (Ind. 2004). The
               ordinary rules of statutory construction apply in interpreting the
               language of a zoning ordinance. Id. at 65. Under those rules, the
               express language of the ordinance controls our interpretation and
               our goal is to determine, give effect to, and implement the intent
               of the enacting body. See Shaffer v. State, 795 N.E.2d 1072, 1076
               (Ind. Ct. App. 2003). When an ordinance is subject to different
               interpretations, the interpretation chosen by the administrative
               agency charged with the duty of enforcing the ordinance is
               entitled to great weight, unless that interpretation is inconsistent
               with the ordinance itself. See id. If a court is faced with two
               reasonable interpretations of an ordinance, one of which is
               supplied by an administrative agency charged with enforcing the
               ordinance, the court should defer to the agency. See id. Once a

       Court of Appeals of Indiana | Opinion 49A04-1703-PL-554 | August 11, 2017   Page 8 of 13
               court determines that an administrative agency’s interpretation is
               reasonable, it should end its analysis and not address the
               reasonableness of the other party’s interpretation. Id. at 1076-77.
               Terminating the analysis reinforces the policies of acknowledging
               the expertise of agencies empowered to interpret and enforce
               ordinances and increasing public reliance on agency
               interpretations. Id. at 1077.


       Id. (footnote omitted).


                                         II. Ownership Issue
[12]   With regard to ownership of property purchased via land contract, the Indiana

       Supreme Court has held as follows:

               Under a typical conditional land contract, the vendor retains
               legal title until the total contract price is paid by the vendee.
               Payments are generally made in periodic installments. Legal title
               does not vest in the vendee until the contract terms are satisfied,
               but equitable title vests in the vendee at the time the contract is
               consummated. When the parties enter into the contract, all
               incidents of ownership accrue to the vendee. Thompson v. Norton
               (1860), 14 Ind. 187. The vendee assumes the risk of loss and is
               the recipient of all appreciation in value. Thompson, supra. The
               vendee, as equitable owner, is responsible for taxes. Stark v.
               Kreyling (1934), 207 Ind. 128, 188 N.E. 680. The vendee has a
               sufficient interest in land so that upon sale of that interest, he
               holds a vendor’s lien. Baldwin v. Siddons (1910), 46 Ind. App.
               313, 90 N.E. 1055, 92 N.E. 349.

               This Court has held, consistent with the above notions of
               equitable ownership, that a land contract, once consummated
               constitutes a present sale and purchase. The vendor “has, in
               effect, exchanged his property for the unconditional obligation of
               the vendee, the performance of which is secured by the retention

       Court of Appeals of Indiana | Opinion 49A04-1703-PL-554 | August 11, 2017   Page 9 of 13
               of the legal title.” Stark v. Kreyling, supra, 207 Ind. at 135, 188
               N.E. at 682. The Court, in effect, views a conditional land
               contract as a sale with a security interest in the form of legal title
               reserved by the vendor. Conceptually, therefore, the retention of
               the title by the vendor is the same as reserving a lien or mortgage.
               Realistically, vendor-vendee should be viewed as mortgagee-
               mortgagor. To conceive of the relationship in different terms is
               to pay homage to form over substance. See Principles of Equity,
               Clark, 4th edition, Sec. 9, p. 23.


       Skendzel v. Marshall, 261 Ind. 226, 234, 301 N.E.2d 641, 646 (1973). Stated

       differently, “the vendee in possession for all practical purposes becomes the

       owner of the property with all the rights of an owner in the operation of it,

       subject only of course to the terms of the contract[.] Id. at 235, 301 N.E.2d at

       646 (internal quotation and citations omitted).


[13]   With regard to ownership of the Property, the relevant facts demonstrate that

       Ryan entered into the Land Contract with Three Mile on November 19, 2014.

       Gurpreet is an incorporator, a principal, and the registered agent of Three Mile.

       Gurpreet signed the Land Contract on behalf of Three Mile. The Land

       Contract was subsequently recorded in the Marion County Recorder’s office.


[14]   On March 9, 2015, the Application for an ILP was filed. The Application listed

       Gurpreet as the “Owner.” Appellants’ App. Vol. II, p. 41. The Application was

       subsequently approved and on June 23, 2015, an ILP was issued to “Three Mile

       Property–Gurpreet Singh.” Appellants’ App. Vol. II, p. 112. The Appellees

       appealed the issuance of the ILP to the BZA. Upon review, the BZA upheld

       the issuance of the ILP.

       Court of Appeals of Indiana | Opinion 49A04-1703-PL-554 | August 11, 2017   Page 10 of 13
[15]   The Appellees appealed the BZA’s decision to the trial court. The trial court

       concluded that “[a]t the time the ILP was filed in March 2015, neither Gurpreet

       Singh nor Michael Cope was the owner or lessee of the [P]roperty at 8562

       Lafayette Road.” Appellants’ App. Vol. II, p. 18. As such, the trial court

       further concluded that Application was not complete and that the BZA

       “committed a fundamental error in law in denying the appeal of the grant of the

       ILP in this case because neither [Gurpreet] nor Cope was the owner of the

       Property.” Appellants’ App. Vol. II, p. 18.


[16]   To conclude that Three Mile was not the owner of the Property would, in

       effect, “pay homage to form over substance.” See Skendzel, 261 Ind. at 234, 301

       N.E.2d at 646. The facts set forth above clearly established Three Mile as the

       equitable owner of the Property. Gurpreet, as the registered agent of Three

       Mile, was therefore properly listed on the Application. Further, given the

       issuance of the ILP to “Three Mile Property–Gurpreet Singh,” it is clear that

       the agency recognized these facts and considered Three Mile as the equitable

       owner of the Property and applicant for the permit. As such, following the

       reasoning set forth by the Indiana Supreme Court in Skendzel, we conclude that

       the trial court erred in concluding that the Application was not complete

       because it was not filed by or on behalf of the owner of the property.


                III. Applicability of the Moratorium Ordinance
[17]   Having concluded that the Application was complete when filed on March 9,

       2015, we must next consider whether the Moratorium Ordinance applies to the


       Court of Appeals of Indiana | Opinion 49A04-1703-PL-554 | August 11, 2017   Page 11 of 13
       Application. With respect to applications for land use or construction

       approvals and permits from a local government board or agency, Indiana Code

       section 36-7-4-1109(c) provides as follows:


               If a person files a complete application as required by the
               effective ordinances or rules of a local unit of government or a
               local governmental agency for a permit with the appropriate local
               governmental agency, the granting of the permit, and the granting
               of any secondary, additional, or related permits or approvals
               required from the same local governmental agency with respect
               to the general subject matter of the application for the first
               permit, are governed for at least three (3) years after the person
               applies for the permit by the statutes, ordinances, rules, development
               standards, and regulations in effect and applicable to the property when
               the application is filed, even if before the issuance of the permit or while
               the permit approval process is pending, or before the issuance of any
               secondary, additional, or related permits or approvals or while
               the secondary, additional, or related permit or approval process is
               pending, the statutes, ordinances, rules, development standards, or
               regulations governing the granting of the permit or approval are changed
               by the general assembly or the applicable local legislative body or
               regulatory body, regardless of whether such changes in the statutes,
               ordinances, rules, development standards, or regulations are part
               of a zoning ordinance, a subdivision control ordinance, or a
               statute, ordinance, or regulation that is based on the general
               police powers of the local unit of government.


       (Emphases added).


[18]   It is undisputed that the Application was filed on March 9, 2015. It is also

       undisputed that the Moratorium Ordinance was not approved by the City

       Council until April 20, 2015, or signed by the Mayor on April 29, 2015. Given

       the unambiguous provisions of Indiana Code section 36-7-4-1109(c) coupled

       Court of Appeals of Indiana | Opinion 49A04-1703-PL-554 | August 11, 2017        Page 12 of 13
       with the fact that the Application was filed before the Moratorium Ordinance

       went into effect, the Moratorium Ordinance did not apply to the Application.

       We therefore conclude that the trial court erred in finding otherwise.



                                                Conclusion
[19]   In sum, we conclude that the trial court erred in reversing the decision of the

       BZA. We therefore reverse the decision of the trial court and reinstate the

       February 16, 2016 decision of the BZA.


       May, J., and Barnes, J., concur.




       Court of Appeals of Indiana | Opinion 49A04-1703-PL-554 | August 11, 2017   Page 13 of 13
