ATTORNEY FOR APPELLANT TOWN                               ATTORNEYS FOR APPELLEE
OF ELLETTSVILLE, INDIANA PLAN                             Michael Rabinowitch
COMMISSION                                                Maureen E. Ward
Darla S. Brown                                            Wooden McLaughlin, LLP
Sturgeon & Brown, P.C.                                    Indianapolis, Indiana
Bloomington, Indiana
ATTORNEYS FOR APPELLANT RICHLAND
CONVENIENCE STORE PARTNERS, LLC
Andrew P. Sheff
                                                                                  FILED
Sheff Law Office                                                             May 25 2017, 8:30 am

Indianapolis, Indiana                                                             CLERK
                                                                              Indiana Supreme Court
                                                                                 Court of Appeals
                                                                                   and Tax Court
Carina M. de la Torre
The de la Torre Law Office LLC
Indianapolis, Indiana




                                            IN THE
    COURT OF APPEALS OF INDIANA

Town of Ellettsville, Indiana                             May 25, 2017
Plan Commission and Richland                              Court of Appeals Case No.
Convenience Store Partners,                               53A01-1611-PL-2559
LLC,                                                      Appeal from the Monroe Circuit
Appellants-Respondents,                                   Court
                                                          The Honorable E. Michael Hoff,
        v.                                                Judge
                                                          Trial Court Cause No.
Joseph V. DeSpirito,                                      53C01-1509-PL-1714
Appellee-Petitioner




Crone, Judge.



Court of Appeals of Indiana | Opinion 53A01-1611-PL-2559 | May 25, 2017                    Page 1 of 26
                                              Case Summary
[1]   Richland Convenience Store Partners, LLC (“RCSP”), and Joseph V.

      DeSpirito own adjoining lots in an Ellettsville subdivision. RCSP filed a

      petition with the Town of Ellettsville Plan Commission to relocate a utility

      easement on RCSP’s property, which contains a private sewer line that serves

      DeSpirito’s optometry practice, and amend the subdivision plat accordingly.

      RCSP proposed to replace and relocate the sewer line at its own expense. The

      Plan Commission approved RCSP’s petition over DeSpirito’s objection.

      DeSpirito filed a petition for judicial review of the Plan Commission’s decision.

      DeSpirito, RCSP, and the Plan Commission filed motions for summary

      judgment. The trial court granted DeSpirito’s motion and denied the other

      motions, concluding that the Plan Commission erred in approving RCSP’s

      petition because DeSpirito had not consented to the relocation of the easement.


[2]   The Plan Commission and RCSP now appeal, arguing that the trial court’s

      conclusion is erroneous. We agree and therefore reverse and remand with

      instructions to enter summary judgment for the Plan Commission and RCSP.


                                  Facts and Procedural History
[3]   The relevant facts are undisputed. Swifty Oil (“Swifty”) once owned the land

      now owned by RCSP and DeSpirito. In 1996, Swifty submitted a plat for the

      Hukill Subdivision, which was approved by the Monroe County Plan




      Court of Appeals of Indiana | Opinion 53A01-1611-PL-2559 | May 25, 2017   Page 2 of 26
      Commission and recorded that same year.1 The subdivision has two adjoining

      lots – Lot 1 to the west and Lot 2 to the east – that are bordered on the north by

      State Road 46. The plat states, “There are utility easements, drainage

      easements and building setback lines as shown on the plat, upon which no

      structure may be erected or maintained.” Appellants’ App. Vol. 2 at 127. The

      plat shows the approximate location of what is labeled as a fifteen-foot-wide

      utility easement running east-west across the center of Lot 1.2 The plat also

      shows a building and gas pumps north of the utility easement and no structures

      south of the easement; this gas station was owned by Swifty and ceased

      operating at some point. The plat contains a metes and bounds description of

      the property’s boundaries but does not contain a metes and bounds description

      of the utility easement. Finally, the plat shows what is labeled as an

      ingress/egress easement in the northeast corner of Lot 1 adjoining State Road

      46 and Lot 2, which does not have direct access to State Road 46.


[4]   In June 1996, Swifty conveyed Lot 2 to Marlin Hukill by warranty deed, which

      granted Hukill and his successors the right to use the ingress/egress easement

      on Lot 1 to access Lot 2. In August 1996, Swifty granted Hukill and his

      successors a second ingress/egress easement on Lot 1, to be used only if the

      other ingress/egress easement “is cut off from access to State Road 46.”




      1
          All deeds and grants mentioned below were also recorded.
      2
       The plat does not indicate that the easement is located a certain distance from the northern and southern
      boundaries of Lot 1.

      Court of Appeals of Indiana | Opinion 53A01-1611-PL-2559 | May 25, 2017                          Page 3 of 26
      Appellants’ App. Vol. 3 at 38. The grant contains a metes and bounds

      description of the second easement.


[5]   In 2011, DeSpirito obtained Lot 2 from Bayview Loan Servicing by warranty

      deed, which contains a metes and bounds description of Lot 2 and of the

      second ingress/egress easement mentioned above.


[6]   In 2014, RCSP obtained Lot 1 from Swifty by warranty deed, subject to

      “Covenants, Conditions, Restrictions, Utility and Drainage easements and

      setback lines and any amendments thereto as disclosed on the recorded plat of

      subdivision.” Appellants’ App. Vol. 2 at 69.


[7]   At some point, the Town of Ellettsville annexed Lot 1. In June 2015, RCSP

      filed a petition with the Plan Commission to relocate the utility easement on

      Lot 1 and amend the subdivision plat accordingly. In September 2015, after a

      hearing, the Plan Commission issued a decision that reads in relevant part as

      follows:


                                         Applications—Findings


              ….

              8. [Lot 1] was recently annexed, and is officially within the
              jurisdiction of the Town of Ellettsville. The utility easement
              contains approximately fifteen (15) feet of Smithville [Telephone]
              cable and a private utility (sewer) line. The utility easement
              which runs east-west through the center of the property is
              believed to have been established in order to provide sewer
              service to Lot 2.


      Court of Appeals of Indiana | Opinion 53A01-1611-PL-2559 | May 25, 2017   Page 4 of 26
        9. The Petitioners are proposing to relocate the easement
        between 15 and 20 feet to the south. The Petitioners are also
        proposing to replace the private line with a new line, and have
        stated they will absorb the cost of the line replacement. The
        relocation of the easement would allow any new construction to
        be built deeper in the lot than would currently be permitted. The
        replacement of the private sewer line would cause only minimal
        disruption to Lot 2, but would allow for sewer usage indefinitely.

        10. The Petitioners are planning to redevelop the site, formerly a
        Swifty station, and the current utility easement significantly
        restricts the buildable area of the lot.


                                   Findings and Conclusion


        ….

        5. The Board accepts as fact the following:


                 a. The replacement of the private sewer line would cause
                 only minimal disruption to Lot 2, but would allow for
                 sewer usage indefinitely.

                 b. Petitioners have stated that they will absorb the cost of
                 the line replacement.

                 c. The purpose of the proposed plat amendment is to
                 increase the buildable area of the lot.

                 d. The current location of the easement dissects the lot
                 into two smaller pieces and restricts access to some of the
                 buildable area of the lot.

                 e. The proposed relocation for the utility easement
                 represents the best location to allow for future
                 development of the site and maintain the functionality of
Court of Appeals of Indiana | Opinion 53A01-1611-PL-2559 | May 25, 2017         Page 5 of 26
                 the sewer line.

                 f. There has been no evidence presented which
                 demonstrates that there would be any detrimental effects
                 to the other property in the subdivision.

                 g. No provision in the Town Code prohibits moving
                 utility easements.

                 h. The proposed plat amendment satisfies the Town of
                 Ellettsville’s subdivision control ordinance.


        6. Those [sic] following individuals presented testimony in
        opposition to the plat amendment or testified as to concerns
        regarding the proposed new development: Dr. DeSpirito, Rusty
        Turner, and Susan Chen. Rusty Turner and Susan Chen had
        concerns about the additional traffic that might be generated and
        the safety of individuals driving in and out of the property.

        ….

        8. Those individuals who presented testimony in opposition to
        the proposed plat amendment presented no evidence that the
        proposed amendment fails to meet the Town’s zoning ordinance
        or that the proposed plat amendment poses detrimental effects to
        the other property in the subdivision.

        9. The Plan Commission finds that the redevelopment of the
        former Swifty station would be in the best interest of the Town of
        Ellettsville. The property is currently zoned C-3 and has two
        access points from State Road 46, and is positioned for a wide
        variety of commercial development options.

        Based on the above findings, the Plan Commission concludes
        and finds that the Petitioners’ application meets all of the
        requirements as set forth by the Town of Ellettsville Zoning

Court of Appeals of Indiana | Opinion 53A01-1611-PL-2559 | May 25, 2017     Page 6 of 26
              Ordinance, and the proposed plant [sic] amendment is hereby
              granted.

              The Planning Director’s staff report dated August 12, 2015 shall
              be adopted as part of the Findings of Fact.


      Id. at 164-67.


[8]   DeSpirito filed a petition for judicial review of the Plan Commission’s decision

      and also requested declaratory and injunctive relief. In October 2015, the

      parties entered into an agreed preliminary injunction, whereby the Plan

      Commission and RCSP agreed not to take any action on the Plan

      Commission’s decision until further order of the trial court. The parties later

      filed motions for summary judgment. In October 2016, after a hearing, the trial

      court issued an order that reads in relevant part as follows:

              4. There is no evidence that the 15 foot utility easement that runs
              east west from Lot 2 across Lot 1 is a public utility easement.
              The only reasonable conclusion, and the Town so found, is that
              the 15 foot utility easement that runs east west from Lot 2 across
              Lot 1 is a private utility easement for the benefit of Lot 2.

              5. RCSP wants to build on its Lot 1. The Town found in its
              Findings and Conclusions that the purpose of moving the
              easement was to increase the buildable area of Lot 1. Since the
              easement cannot be built on, due to the 1996 Plat restriction, and
              for obvious reasons, RCSP wants to move Dr. DeSpirito’s 15
              foot utility easement to another location on RCSP’s Lot 1, at
              RCSP’s expense.

              6. The location of easements, if located in a specific place,
              cannot be changed by either party without the consent of the

      Court of Appeals of Indiana | Opinion 53A01-1611-PL-2559 | May 25, 2017    Page 7 of 26
        other. Thomas v. McCoy (1903), 30 Ind. App. 555, 66 N.E. 700;
        Ritchey v. Welsh [(1898)], 149 Ind. 214, 48 N.E. 1031, 40 L. R. A.
        105; Jones, Easements § 337, cited in Shedd v. American Maize
        Products Co., 60 Ind. App. 146, 154-155[, 108 N.E. 610] (Ind. Ct.
        App. 1915)[, trans. denied.]

        7. Dr. DeSpirito’s easement is located on the plat. It is particular
        and clear. It cannot be changed by either party without the
        consent of the other. RCSP seems to acknowledge this principal
        [sic], as it sought an amendment to the plat, rather than
        unilaterally relocating the pipe in the easement across its Lot 1.

        8. § 153.003 of the Ellettsville Subdivision Regulations provides
        that “All parties who have a financial interest in the subdivision
        and subsequent development must be on record as agreeing with
        the submission provisions in the application to the Plan
        Commission.”

        9. It is clear that Dr. DeSpirito has a financial interest in the
        subdivision and its subsequent development. He owns one of the
        two lots. The proposed change to the subdivision plat is a change
        to the rights appurtenant to his lot.

        10. RCSP and the Town argue that Dr. DeSpirito’s consent is
        not required, in spite of the language in the ordinance that plainly
        says that it is. The Staff Report states that the requirement that
        parties who have a financial interest in the subdivision agree to
        the submission is “a typical provision in subdivision regulations
        intended to ensure that all property owners agree how a larger
        tract will be subdivided.” However, the fact that such a provision
        is typical does not mean it should not be observed. The Staff
        report argues that Dr. DeSpirito will not be physically affected, as
        only Lot 1 will have construction on it if moving the utility
        easement and the pipes is authorized. The Report states that the
        owner of Lot 2 is not "financially involved with these [proposed]
        improvements. Therefore, it would be sensible to determine that
        the petitioners are the only parties with a financial interest in the
Court of Appeals of Indiana | Opinion 53A01-1611-PL-2559 | May 25, 2017      Page 8 of 26
        plat amendment.”

        11. The Town in its decision seems to regard the amendment as
        a minor matter, and the Staff Report and decision justifies
        waiving the requirement that all parties who have a financial
        interest in the subdivision agree with the amendment on this
        basis. However, there seems to be no disagreement that a formal
        plat amendment was required before RCSP would be legally
        entitled to move the location of Dr. DeSpirito’s easement. The
        Town’s decision states that the purpose of the amendment was to
        increase the buildable area of Lot 1. Increasing the buildable
        area of Lot 1 appears to be exactly what Dr. DeSpirito objects to,
        arguing that the existing plat states that nothing can be built now
        on the easement he owns, and he has a vested property right to
        maintain that provision.

        ….

        14. Dr. DeSpirito has a vested property interest in the utility
        easement, as shown on the original plat.

        15. The decision of the Town to act on RCSP’s petition to
        amend the plat is contrary to § 153.003 of the Ellettsville
        Subdivision Regulations. It is contrary to law.

        ….

        17. Indiana Code 36-7-4-714 provides for the vacation of all or
        part of a plat including vacation of any recorded covenants, but
        only after a determination that the factors set out in that section
        are present. Neither RCSP nor the Town maintains that those
        factors are present.

        ….

        21. The amendment is on the petition of RCSP. It benefits only
        RCSP. The United States and Indiana Constitutions prohibit

Court of Appeals of Indiana | Opinion 53A01-1611-PL-2559 | May 25, 2017       Page 9 of 26
        taking private property for private use. Pulos v. James, 261 Ind.
        279[, 302 N.E.2d 768] (Ind. 1973). That case also holds that
        even if some generalized public benefit were found to exist, such
        as allowing RCSP to make a more intensive use of its Lot 1,
        compensation would still be due to Dr. DeSpirito for taking and
        moving his easement. It is illegal to assist one private land owner
        to “condemn” and take the property of another owner even if
        compensation is paid, and there is no provision for public
        compensation of a private taking. The Town’s decision states
        that “Redevelopment of the former Swifty Station would be in
        the best interest of the Town of Ellettsville.” The Staff Report,
        incorporated into the Plan Commission’s findings, was more
        equivocal. It states that unless there are specific reasons as to
        why the amendment would not meet the Town’s code, it should
        be approved.

        ….

        23. The court concludes that the evidence is not in dispute. The
        only reasonable conclusion from the record is that the Town’s
        action takes Dr. DeSpirito’s property without his consent. It
        does so in complete disregard of its own ordinance that requires
        that all of the owners of subdivision join in a request to amend
        the plat. The Plan Commission’s action does not extinguish the
        easement across Lot 1, but only moves it. However, the net
        effect of the Plan Commission’s action is to change the location
        of one owner’s property without his consent, at the request of an
        adjoining owner.

        The court determines that Dr. DeSpirito has been prejudiced by a
        zoning decision that is in excess of statutory authority or
        limitations, and short of statutory right, as the Town did not
        observe the requirement of § 153.003.

        The court further determines that Dr. DeSpirito has been
        prejudiced by a zoning decision that is contrary to constitutional
        right, power, privilege, or immunity, as Plaintiff’s easement
Court of Appeals of Indiana | Opinion 53A01-1611-PL-2559 | May 25, 2017   Page 10 of 26
               rights have been modified without his consent, and without a
               determination that the provisions of Indiana Code 36-7-4-714
               apply and the public interest requires the modification.

               IT IS THEREFORE ORDERED that Defendant [RCSP’s]
               motion for summary judgment is denied. Plaintiff Joseph V.
               DeSpirito’s cross-motion for summary judgment is granted.
               Defendant Town of Ellettsville, Indiana Plan Commissions’ [sic]
               cross-motion for summary judgment is denied.

               IT IS FURTHER ORDERED that this case is remanded to the
               Town of Ellettsville, Indiana Plan Commission, with instructions
               to dismiss [RCSP’s petition], unless said petition is subsequently
               joined in by Joseph V. DeSpirito.

               IT IS FURTHER ORDERED that the Preliminary Injunction …
               remains in effect.


      Appealed Order at 2-6. The Plan Commission and RCSP now appeal.3


                                        Discussion and Decision
[9]   When we review an administrative agency’s decision, we are bound by the

      same standard as the trial court. City of Indianapolis v. Bentley, 56 N.E.3d 1163,

      1166 (Ind. Ct. App. 2016). “Thus, we may not consider any evidence not

      already in the administrative record, retry the case, or substitute our judgment

      for the agency’s judgment.” Pack v. Ind. Family & Soc. Servs. Admin., 935 N.E.2d




      3
        The notice of appeal states that the appeal is from a final judgment, i.e., a judgment that “disposes of all
      claims as to all parties.” Ind. Appellate Rule 2(H). The finality of the judgment is questionable in light of the
      preliminary nature of the injunction order, but because our supreme court has significantly relaxed
      procedural requirements in this regard, see In re D.J. v. Ind. Dep’t of Child Servs., 68 N.E.3d 574 (Ind. 2017)
      (addressing merits of premature appeal), we do not consider the issue further.

      Court of Appeals of Indiana | Opinion 53A01-1611-PL-2559 | May 25, 2017                            Page 11 of 26
       1218, 1225 (Ind. Ct. App. 2010) (citing Ind. Code § 4-21.5-5-11), clarified on

       reh’g, 940 N.E.2d 369 (2011). “Similarly, we cannot reweigh the evidence or

       judge the credibility of witnesses.” Id.


               Pursuant to the Administrative Orders and Procedures Act
               (AOPA), we will reverse the administrative decision only if it is
               (1) arbitrary, capricious, or otherwise not in accordance with law;
               (2) contrary to a 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.


       Bentley, 56 N.E.3d at 1166 (citing Ind. Code § 4-21.5-5-14). “Although an

       appellate court grants deference to an administrative agency’s findings of fact,

       no such deference is accorded to its conclusions of law. The burden of

       demonstrating the invalidity of the agency action is on the party who asserts the

       invalidity.” Id. (citation omitted). In this case, that party is DeSpirito.


[10]   The trial court granted summary judgment in DeSpirito’s favor. “Summary

       judgment is proper where no genuine issue of material fact remains and the

       movant is entitled to judgment as a matter of law.” Id. (citing Ind. Trial Rule

       56(C)). “Where, as here, the material facts are not in dispute, our review is

       limited to determining whether the law was correctly applied to the undisputed

       facts.” Good v. Ind. Teachers Ret. Fund, 31 N.E.3d 978, 981-82 (Ind. Ct. App.

       2015), trans. denied.




       Court of Appeals of Indiana | Opinion 53A01-1611-PL-2559 | May 25, 2017   Page 12 of 26
[11]   An easement is “[a]n interest in land owned by another person, consisting in

       the right to use or control the land, or an area above or below it, for a specific

       limited purpose ….” Howard v. United States, 964 N.E.2d 779, 781 n.2 (Ind.

       2012) (quoting BLACK’S LAW DICTIONARY 585-86 (9th ed. 2009)). An

       easement does not give the holder the right to possess the land. Duke Energy of

       Ind., LLC v. City of Franklin, 69 N.E.3d 471, 482-83 (Ind. Ct. App. 2016). “The

       land benefitting from an easement is called the dominant estate; the land

       burdened by an easement is called the servient estate.” Howard, 964 N.E.2d at

       781 n.2 (emphases omitted) (quoting BLACK’S LAW DICTIONARY 586 (9th ed.

       2009)). The fundamental question here is whether RCSP, the owner of the

       servient estate, may relocate the utility easement without the consent of

       DeSpirito, the owner of the dominant estate. The Plan Commission said yes.

       The trial court said no, citing four primary bases for its decision: (1) Section

       153.003 of the Ellettsville Subdivision Regulations; (2) constitutional concerns;

       (3) statutory concerns; and (4) prior Indiana case law.


                                            (1) Section 153.003
[12]   Section 153.003(A) provides, “All parties who have a financial interest in the

       subdivision and subsequent development must be on record as agreeing with

       the submission provisions in the application to the Plan Commission.” The

       trial court concluded that the regulation applies in this situation – a proceeding

       to amend an existing subdivision plat – and that because DeSpirito has a

       financial interest in the subdivision and its subsequent development, his consent

       to the amendment is required. For the reasons given below, we respectfully

       Court of Appeals of Indiana | Opinion 53A01-1611-PL-2559 | May 25, 2017   Page 13 of 26
       disagree with the trial court’s conclusion regarding the applicability of Section

       153.003.


[13]   Construction of a municipal ordinance is a question of law, and we follow the

       ordinary rules of statutory construction. City of Columbus Bd. of Zoning App. v.

       Big Blue, 605 N.E.2d 188, 191 (Ind. Ct. App. 1992). “We review questions of

       law under a de novo standard and owe no deference to the trial court’s

       conclusions.” Village Pines at Pines of Greenwood Homeowners’ Ass’n v. Pines of

       Greenwood Homeowners’ Ass’n, 937 N.E.2d 835, 838 (Ind. Ct. App. 2010), trans.

       denied (2011). “We will interpret the ordinance as a whole and give its words

       their plain, ordinary, and usual meaning.” Daily v. City of Columbus Bd. of Zoning

       App., 904 N.E.2d 343, 345 (Ind. Ct. App. 2009), clarified on reh’g, 909 N.E.2d

       1038, trans. denied. We are required to interpret ordinances so as to prevent

       absurdity. T.W. Thom Constr., Inc. v. City of Jeffersonville, 721 N.E.2d 319, 325

       (Ind. Ct. App. 1999). Ordinances relating to the same subject matter are in pari

       materia (on the same subject) and should be construed together to produce a

       harmonious regulatory scheme. See Village Pines, 937 N.E.2d at 838 (referring

       to statutes). In determining the intent of the drafters, it is important to see

       where the ordinance at issue is located within the code of ordinances. See

       Roberts v. Sankey, 813 N.E.2d 1195, 1198 (Ind. Ct. App. 2004) (referring to

       statutes), trans. denied (2005).


[14]   The subdivision regulations are grouped under ten headings, starting with

       “General Provisions,” “Application for Subdivision Approval,” “Preliminary

       Plat and Primary Approval,” “Final Plat and Secondary Approval,” and so on.
       Court of Appeals of Indiana | Opinion 53A01-1611-PL-2559 | May 25, 2017    Page 14 of 26
       The first two regulations under the “General Provisions” heading are Sections

       153.001 (“General Requirements”) and 153.002 (“Definitions”). The third

       regulation is Section 153.003, which is also entitled “General Provisions.”

       Section 153.003(B) states, “When it is clearly in the [town’s] interest that a

       parcel should not be developed through further subdivision, the Planning

       Commission may reject a primary plat.” Section 153.003(C) states that

       subdivisions must comply with local community and comprehensive plans.

       The subsequent parts of Section 153.003 set out requirements for subdivision

       streets, block length, lot width, green space, etc. The next regulation, Section

       153.010, is entitled “Pre-application for Subdivision Approval” and falls under

       the heading “Preliminary Plat and Primary Approval.” Section 153.010 states

       that “[p]rior to the filing of a formal application for approval of a preliminary

       plat, the petitioner shall submit to the Director of Planning Services the plans

       and data that outline generally the scope and intent of the proposed subdivision

       project[,]” including the “[p]roposed development name.”


[15]   Based on the wording of Section 153.003 as a whole and its location within the

       subdivision regulations, we conclude that it applies solely to the submission of a

       preliminary subdivision plat, not to the amendment of an existing plat, and

       therefore is inapplicable in this case. The clear purpose of Section 153.003(A) is

       to ensure that developers and others with a financial interest in a proposed

       subdivision and subsequent development are all on the same page before

       starting the subdivision approval process. Our conclusion is further supported

       by RCSP’s observation that, when applied to a 150-lot subdivision, the trial


       Court of Appeals of Indiana | Opinion 53A01-1611-PL-2559 | May 25, 2017   Page 15 of 26
       court’s interpretation of Section 153.003(A) “would require every owner of a lot

       to consent to the relocation of a utility easement within a single lot.”

       Appellant’s Reply Br. at 21 n.4. The drafters of Section 153.003 could not have

       intended such an absurd result.


                                      (2) Constitutional Concerns
[16]   Several of the trial court’s findings touch on constitutional issues, only one of

       which merits consideration: that “[t]he United States and Indiana

       Constitutions prohibit taking private property for private use” and that “[i]t is

       illegal to assist one private land owner to ‘condemn’ and take the property of

       another owner even if compensation is paid, and there is no provision for public

       compensation of a private taking.” Appealed Order at 15 (finding 21). Neither

       the trial court’s order nor DeSpirito’s appellee’s brief cites any pertinent

       authority for the proposition that a servient tenant’s relocation of a private

       utility easement – at the servient tenant’s expense and with minimal disruption

       to the private sewer line within that easement – constitutes a taking of the

       dominant tenant’s property for private use.4 The Pulos case cited in finding 21

       does not support this proposition, as it concerns a statute authorizing the

       vacation of restrictive covenants, not the relocation of an easement. See Pulos,



       4
         RCSP objects to the trial court’s characterization of the utility easement as a private utility easement,
       especially as to the extent that it might give DeSpirito “any vested private property ownership interest.”
       RCSP’s Br. at 20. There is no evidence that any aspect of the easement is public, but regardless of how
       DeSpirito’s interest in the easement is characterized, he has failed to establish that allowing RCSP to relocate
       the easement without his consent would unconstitutionally violate that interest. To be sure, DeSpirito’s
       interest in the easement is not vested in terms of possession, as an easement is a nonpossessory interest. Duke
       Energy, 69 N.E.3d at 482-83.

       Court of Appeals of Indiana | Opinion 53A01-1611-PL-2559 | May 25, 2017                           Page 16 of 26
       26 Ind. at 283-84, 302 N.E.2d at 771 (“A restrictive covenant in a plat is a

       covenant running with the land. It creates a property right in each grantee and

       subsequent grantee of a lot in the plat subject to the restriction. That property

       right cannot be taken for a private use ….”) (citations omitted).5 In sum, the

       trial court’s constitutional concerns regarding the relocation of the easement are

       misplaced.


                                           (3) Statutory Concerns
[17]   Finding 17 of the trial court’s order states, “Indiana Code 36-7-4-714 provides

       for the vacation of all or part of a plat including vacation of any recorded

       covenants, but only after a determination that the factors set out in that section

       are present. Neither RCSP nor the Town maintains that those factors are

       present.” Appealed Order at 14.6 RCSP asserts that its petition “does not fall

       within the scope of this statute because the subject of [its petition] is the

       relocation of a utility easement, not the vacation or stripping of restrictive




       5
         The trial court’s order contains a lengthy quotation from Wischmeyer v. Finch, 231 Ind. 282, 107 N.E.2d 661
       (1952), which also concerns restrictive covenants and therefore is irrelevant here.
       6
         See Ind. Code § 36-7-4-714 (“The vacation of all or part of a plat may include the vacation of any recorded
       covenants filed with the plat, but only upon a determination that: (1) the platted area is within an area
       needing redevelopment and the covenant vacation would promote a recovery of property values in the area
       needing redevelopment by allowing or encouraging normal development and occupancy of the platted area;
       (2) the covenant vacation is needed to secure for the public adequate light, air, convenience of access, or
       safety from fire, flood, or other danger; or (3) the covenant vacation is needed to lessen or avoid congestion in
       the public ways.”).

       Court of Appeals of Indiana | Opinion 53A01-1611-PL-2559 | May 25, 2017                            Page 17 of 26
       covenants in a plat.” RCSP’s Br. at 36. We agree and therefore conclude that

       the trial court’s statutory concerns are unfounded.7


                                        (4) Prior Indiana Case Law
[18]   Finally, as for the trial court’s reliance on prior Indiana case law in granting

       DeSpirito’s summary judgment motion, we observe that two of the three

       century-old cases mentioned in finding 6 involved an easement by necessity –

       i.e., “[a]n easement created by operation of law because the easement is

       indispensable to the reasonable use of nearby property, such as an easement

       connecting a parcel of land to a road” – not a utility easement depicted on a

       subdivision plat, as in this case. BLACK’S LAW DICTIONARY (10th ed. 2014). In

       Ritchey, the dominant tenant successfully sued to prevent the servient tenant

       from altering the route of an easement by necessity that had “been selected and

       used by the agreement of both parties ….”                         149 Ind. at 221, 48 N.E. at 1033.

       In affirming the trial court’s judgment, our supreme court recited the following

       rule regarding easements by necessity:




       7
         In his brief, DeSpirito asserts that RCSP must comply with the requirements of Indiana Code Section 36-7-
       4-711, which governs cases “in which not all the owners of land in a plat are in agreement regarding a
       proposed vacation” of a plat or part of a plat. Those requirements include submitting a petition to the plan
       commission which, after holding a hearing, “may approve the vacation of all or part of a plat only upon a
       determination that: (1) conditions in the platted area have changed so as to defeat the original purpose of the
       plat; (2) it is in the public interest to vacate all or part of the plat; and (3) the value of that part of the land in
       the plat not owned by the petitioner will not be diminished by the vacation.” DeSpirito cites no pertinent
       authority holding that the statute applies to the relocation of an easement on a single lot. In Jones v. Nichols,
       765 N.E.2d 153 (Ind. Ct. App. 2002), trans. denied, we held that a landowner need not jump through similar
       procedural hoops before granting an easement across his or her own land. We see no reason why RCSP
       should have to do so in order to relocate an existing easement on its own land.

       Court of Appeals of Indiana | Opinion 53A01-1611-PL-2559 | May 25, 2017                                  Page 18 of 26
           When no prior use of the way has been made, and the same is to
           be located for the first time, the owner of the land over which the
           same is to pass has the right to choose it, provided he does so in a
           reasonable manner, having due regard to the rights and interests
           of the owner of the dominant estate. But, if the owner of the land
           fail to select such way when requested, the party who has the
           right thereto may select a suitable route for the same, having due
           regard to the convenience of the owner of the servient estate.
           When the way is once selected, it cannot be changed by either
           party without the consent of the other.


Id. at 220-21, 48 N.E. at 1033 (citations omitted). In Thomas, this Court quoted

that rule in affirming the dismissal of a complaint to establish an easement by

necessity for failure to state a claim. See 30 Ind. App. at 556-57, 66 N.E. at 701

(“[I]n this complaint there is no allegation that an easement had been marked

out, located or existed over and across appellees’ land prior to the time this

action was commenced.”).8 And in Shedd, this Court cited the rule in

considering whether the dominant tenant’s successful complaint to enjoin the

servient tenants from interfering with the extension of sewer discharge and

water intake pipelines across an easement and into Lake Michigan was

sufficient to state a claim, where it did not describe the dimensions or location

of the easement or show that the dominant tenant had asked the servient



8
    An American Law Reports article notes that
         courts exhibit a strong tendency to enunciate general propositions of law which, taken literally,
         deal with [the relocation of easements]. Such pronouncements frequently appear, however, in
         cases which do not on their facts involve any issue as to the relocation of an existing easement.
         Even in decisions which are factually in point for the present discussion the language employed
         is often considerably broader than is necessary for a determination of the issues before the court.
Relocation of easements (other than those originally arising by necessity); rights as between private parties, 80 A.L.R. 2d
743 (1961).

Court of Appeals of Indiana | Opinion 53A01-1611-PL-2559 | May 25, 2017                                     Page 19 of 26
       tenants to locate the easement and they had refused the request. 60 Ind. App.

       at 155, 108 N.E. at 614.9


[19]   In this case, we are not dealing with an easement by necessity, and neither the

       dominant tenant nor the servient tenant nor their predecessors selected the

       location of the easement – its approximate location was drawn on the original

       subdivision plat submitted by Swifty to the Monroe County Plan Commission

       back in 1996. Thus, it is doubtful that the rule stated over a hundred years ago

       in Ritchey, to the extent it could be considered a holding, is applicable to the

       facts before us.


[20]   A more modern and, we think, more equitable approach to easement relocation

       is found in Restatement (Third) of Property (Servitudes) § 4.8 (2000), which has

       been adopted or approved by several jurisdictions around the country.10 Section

       4.8, entitled “Location, Relocation, and Dimensions of a Servitude,” states,


                Except where the location and dimensions are determined by the
                instrument or circumstances surrounding creation of a servitude,
                they are determined as follows:


                         (1) The owner of the servient estate has the right within a
                         reasonable time to specify a location that is reasonably
                         suited to carry out the purpose of the servitude.



       9
         The Shedd court concluded that those issues had been raised in subsequent pleadings and tried by consent of
       the parties.
       10
         E.g., Roy v. Woodstock Cmty. Trust, Inc., 94 A.3d 530 (Vt. 2014), St. James Vill., Inc. v. Cunningham, 210 P.3d
       190 (Nev. 2009), M.P.M. Builders, LLC v. Dwyer, 809 N.E.2d 1058 (Mass. 2004), Goodwin v. Johnson, 591
       S.E.2d 34 (S.C. Ct. App. 2003), Roaring Fork Club, L.P. v. St. Jude’s Co., 36 P.3d 1229 (Colo. 2001).

       Court of Appeals of Indiana | Opinion 53A01-1611-PL-2559 | May 25, 2017                             Page 20 of 26
                  (2) The dimensions are those reasonably necessary for
                  enjoyment of the servitude.

                  (3) Unless expressly denied by the terms of an easement,
                  as defined in § 1.2,[11] the owner of the servient estate is
                  entitled to make reasonable changes in the location or
                  dimensions of an easement, at the servient owner’s
                  expense, to permit normal use or development of the
                  servient estate, but only if the changes do not


                           (a) significantly lessen the utility of the easement,

                           (b) increase the burdens on the owner of the
                           easement in its use and enjoyment, or

                           (c) frustrate the purpose for which the easement was
                           created.


Comment (f) to Section 4.8 states that the “rule is designed to permit

development of the servient estate to the extent it can be accomplished without

unduly interfering with the legitimate interests of the easement holder.”

Moreover, the rule

         will increase overall utility because it will increase the value of
         the servient estate without diminishing the value of the dominant
         estate and it will encourage the use of easements and lower their
         price by decreasing the risk the easements will unduly restrict
         future development of the servient estate. In addition, permitting



11
   Section 1.2 of the Restatement defines easement in pertinent part as follows: “An easement creates a
nonpossessory right to enter and use land in the possession of another and obligates the possessor not to
interfere with the uses authorized by the easement.”

Court of Appeals of Indiana | Opinion 53A01-1611-PL-2559 | May 25, 2017                          Page 21 of 26
           the servient owner to change the location under the enumerated
           circumstances provides a fair trade-off for the vulnerability of the
           servient estate to increased use of the easement to accommodate
           changes in technology and development of the dominant estate.

           ….

           …. [T]he safeguards contained in the rule stated in subsection (3)
           will protect the easement owner’s legitimate interests. As stated,
           the rule permits the servient owner to relocate only if the change
           does not significantly lessen the utility of the easement, increase
           the burdens on the easement owner, or frustrate the purpose for
           which the easement was created. That recognizing a right to
           relocate a servitude might confer a windfall on the servient owner
           is not a sufficient reason to reject the rule adopted in subsection
           (3). The primary purpose of the rule is to increase the value of
           the servient estate by limiting the easement’s potential to prevent
           development even when a relocated easement would equally well
           serve the interests of the easement holder. With the safeguards
           provided, this rule will increase the value of the servient estate
           without any significant decrease in the value of the dominant
           estate.


Id.12




12
     Comment (f) further explains,
         This subsection adopts the civil-law rule that is in effect in Louisiana and a few other states. It
         rejects the rule espoused by the weight of authority in the United States—that the servient owner
         may not unilaterally relocate an easement. That rule resulted from applying the rule that the
         easement owner (the owner of the dominant estate) cannot unilaterally change the location of
         an easement to cases involving attempts by the servient owner to change the location. The
         reasons traditionally given for denying the easement owner the right to make unilateral changes
         in location are that treating the location as variable would depreciate the value of the servient
         estate, discourage its improvement, and incite litigation. Although only one of these reasons—
         that recognizing the right to relocate would incite litigation—applies to recognizing the servient
         owner’s right to relocate, many courts applied the rule to deny the servient owner the right to
         relocate. That they did so without appreciating the differences between the two situations can
         be seen from the cases reciting the same three reasons as the basis for the rule.

Court of Appeals of Indiana | Opinion 53A01-1611-PL-2559 | May 25, 2017                             Page 22 of 26
[21]   Here, only the width of the utility easement is determined by the subdivision

       plat, which does not expressly deny the owner of Lot 1 the right to make

       reasonable changes in its location. It is undisputed that RCSP’s proposed

       change to the easement’s location will not significantly lessen the utility of the

       easement, increase the burdens on DeSpirito’s use and enjoyment of the

       easement, or frustrate the purpose for which the easement was created. 13 The

       only question is whether the proposed change in the easement’s location is

       reasonable. Throughout this proceeding, DeSpirito has argued that relocating

       the easement would allow for more intensive development of Lot 1 and create

       traffic and safety issues for his patients, who must use the ingress/egress

       easement on Lot 1 to access his optometry practice from State Road 46. He has

       also argued that he purchased Lot 2 with the expectation that the easement

       would remain in place and prevent further development on Lot 1.


[22]   The Supreme Judicial Court of Massachusetts addressed similar concerns in

       M.P.M. Builders, LLC v. Dwyer, 809 N.E.2d 1053 (Mass. 2004):


               Dwyer urges us to reject the Restatement approach. He argues
               that adoption of § 4.8(3) will devalue easements, create
               uncertainty in property interests, and lead to an increase in
               litigation over property rights. Our adoption of § 4.8(3) will
               neither devalue easements nor place property interests in an
               uncertain status. An easement is by definition a limited,
               nonpossessory interest in realty. The owner of the servient estate
               is in possession of the estate burdened by the easement. An



       13
        In fact, the Town’s engineer testified that the sewer system would be updated and that proper cleanouts,
       which are currently lacking, would be installed. Appellants’ App. Vol. 2 at 169.

       Court of Appeals of Indiana | Opinion 53A01-1611-PL-2559 | May 25, 2017                        Page 23 of 26
        easement is created to serve a particular objective, not to grant
        the easement holder the power to veto other uses of the servient
        estate that do not interfere with that purpose.

        The limitations embodied in § 4.8(3) ensure a relocated easement
        will continue to serve the purpose for which it was created. So
        long as the easement continues to serve its intended purpose,
        reasonably altering the location of the easement does not destroy
        the value of it. For the same reason, a relocated easement is not
        any less certain as a property interest. The only uncertainty
        generated by § 4.8(3) is in the easement’s location. A rule that
        permits the easement holder to prevent any reasonable changes
        in the location of an easement would render an access easement
        virtually a possessory interest rather than what it is, merely a
        right of way.…[14]

        ….

        Although Dwyer may be correct that increased litigation could
        result as a consequence of adopting § 4.8(3), we do not reject
        desirable developments in the law solely because such
        developments may result in disputes spurring litigation. Section
        4.8(3) imposes upon the easement holder the burden and risk of
        bringing suit against an unreasonable relocation, but this far
        surpasses in utility and fairness the traditional rule that left the
        servient land owner remediless against an unreasonable easement
        holder. We trust that, over time, uncertainties will diminish and
        litigation will subside as easement holders realize that in some
        circumstances unilateral changes to an easement, paid for by the
        servient estate owner, will be enforced by courts. Dominant and
        servient estate owners will have an incentive to negotiate a result
        rather than having a court impose one on them.




14
  Dwyer had been granted a right of way to a public street across M.P.M.’s land. M.P.M. sought to relocate
the easement because it interfered with construction for a planned subdivision.

Court of Appeals of Indiana | Opinion 53A01-1611-PL-2559 | May 25, 2017                      Page 24 of 26
       Id. at 1058 (footnote, citations, and quotation marks omitted).


[23]   We find these observations persuasive and believe that our supreme court

       would also recognize the utility of adopting the Restatement’s approach to

       easement relocation. With respect to this case, we initially note that

       DeSpirito’s traffic and safety concerns are speculative, given that a hearing has

       not yet been held on RCSP’s plans for redeveloping Lot 1. Before that hearing

       is held, it would be in both parties’ interest to negotiate an agreement regarding

       traffic flow, parking, and other issues so as to maximize the benefits and

       minimize the detriments to each business.15 Failing that, DeSpirito and his

       employees and patients will have an opportunity to voice objections to RCSP’s

       plans at the hearing. We further observe that DeSpirito took a calculated risk in

       purchasing a lot with no direct access to State Road 46, as any purchaser of Lot

       1 could have sought to increase traffic to the site even without relocating the

       easement. The Plan Commission essentially concluded that RCSP’s proposed

       relocation of the easement is reasonable, and DeSpirito has failed to




       15
            In M.P.M. Builders, the court stated,
                In some cases, the parties will be unable to reach a meeting of the minds on the location of an
                easement. In the absence of agreement between the owners of the dominant and servient estates
                concerning the relocation of an easement, the servient estate owner should seek a declaration
                from the court that the proposed changes meet the criteria in § 4.8(3). Such an action gives the
                servient owner an opportunity to demonstrate that relocation comports with the Restatement
                requirements and the dominant owner an opportunity to demonstrate that the proposed
                alterations will cause damage. The servient owner may not resort to self-help remedies and, as
                M.P.M. did here, should obtain a declaratory judgment before making any alterations.
       809 N.E.2d at 1059 (citations omitted). In this case, the approval of subdivision plat amendments falls within
       the purview of the Plan Commission, which has the expertise to determine whether the relocation of an
       easement is reasonable. In cases not involving a plan commission, a declaratory judgment action should be
       initiated.

       Court of Appeals of Indiana | Opinion 53A01-1611-PL-2559 | May 25, 2017                           Page 25 of 26
       demonstrate that this conclusion was invalid.16 Therefore, we reverse the trial

       court’s grant of summary judgment for DeSpirito and remand with instructions

       to enter summary judgment for RCSP and the Plan Commission, reinstate the

       Plan Commission’s decision granting RCSP’s proposed plat amendment, and

       conduct further proceedings not inconsistent with this decision.


[24]   Reversed and remanded.


       Baker, J., and Barnes, J., concur.




       16
          In his brief, DeSpirito raises two tangential issues not mentioned in the trial court’s order: (1) that the Plan
       Commission’s decision would allow the easement to be relocated in a floodplain on Lot 1, which was
       allegedly prohibited by a condition imposed by the Monroe County Plan Commission in approving the
       original subdivision plat ; and (2) that RCSP’s proposed development will encroach on the floodplain, which
       is prohibited by the plat itself. The condition cited by DeSpirito does not prohibit easements (and, more
       specifically, sewer lines) from being located in the floodplain, and any complaint about the location of
       RCSP’s proposed development is premature because the proposal has not yet been submitted to the Plan
       Commission.

       Court of Appeals of Indiana | Opinion 53A01-1611-PL-2559 | May 25, 2017                              Page 26 of 26
