                                                                  Aug 12 2015, 9:39 am




ATTORNEY FOR APPELLANT                                     ATTORNEY FOR APPELLEE
Jacob R. Cox                                               Pamela G. Schneeman
Cox Law Office                                             Assistant Corporation Counsel
Indianapolis, Indiana                                      Office of Corporation Counsel
                                                           Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Fifty Six LLC, individually and,                           August 12, 2015
alternatively, in the name of the                          Court of Appeals Case No.
State of Indiana on relation of                            49A05-1407-PL-323
Fifty Six LLC,                                             Appeal from the Marion Superior
                                                           Court
Appellant,
                                                           The Honorable Patrick L. McCarty,
        v.                                                 Judge
                                                           Cause No. 49D03-1206-PL-24112
The Metropolitan Development
Commission of Marion County,
Appellee.




Brown, Judge.




Court of Appeals of Indiana | Opinion 49A05-1407-PL-323 | August 12, 2015                  Page 1 of 20
[1]   Fifty Six LLC (“Landowner”) appeals from the trial court’s order granting

      summary judgment in favor of the Metropolitan Development Commission (the

      “MDC”). Landowner raises one issue which we revise and restate as whether

      the trial court abused its discretion in denying Landowner’s motion to correct

      error or erred when it granted the MDC’s cross-motion for summary judgment.

      We reverse and remand.


                                       Facts and Procedural History

[2]   In 2009, local residents, schools, churches, businesses, and other institutions

      began a community effort to prevent divestment of a local retail area in

      Millersville, which is a neighborhood located on the northeast side of

      Indianapolis in the area near and surrounding 56th Street and Emerson

      Avenue. Millersville is located in the southeastern portion of Washington

      Township and the southwestern portion of Lawrence Township, and

      Landowner owns an approximately twenty-one acre parcel of land

      (“Landowner’s Parcel”) in Millersville. The efforts of members of the

      Millersville community eventually led to the creation of the Millersville at Fall

      Creek Valley Community Organization (the “Organization”). The

      Organization sought to promote Millersville’s history, schools, and culture;

      protect its water, parks, and greenways; preserve its diverse neighborhoods;

      utilize community resources to safely connect homes, schools, shops, and trails;

      and create a desirable community for its residents.


[3]   In early 2010, the Organization began to work with the Indianapolis Division of

      Planning to assemble focus groups and work groups to study the issues


      Court of Appeals of Indiana | Opinion 49A05-1407-PL-323 | August 12, 2015   Page 2 of 20
      identified as areas of concern, which eventually culminated in a new

      comprehensive plan for the neighborhood, the Millersville at Fall Creek Valley

      Village and Corridor Plan (the “Millersville Plan”). The Millersville Plan that

      was eventually adopted contained two segments, “a village plan focused on the

      retail area centered on the Intersection of Emerson Way and 56 th Street and the

      historic town of Millersville,” and “a corridor plan focused on Fall Creek and

      its adjacent neighborhoods.” Appellee’s Appendix at 21.


[4]   On December 14, 2011, a preliminary first draft of the Millersville Plan was

      presented at a public meeting and was made available for public review.

      Another draft of the Millersville Plan was prepared in anticipation of a January

      18, 2012 adoption hearing and included changes to the housing density

      requirements for Critical Area #4, which included Landowner’s Parcel, as well

      as recommendations on tree conservation and infrastructure. On January 12,

      2012, the Division of Planning decided to postpone the adoption hearing, and a

      subsequent draft of the Millersville Plan was completed on February 1, 2012, in

      anticipation of a February 15, 2012 adoption hearing, and the plan was made

      available to the public on February 3, 2012. On February 7, 2012, a decision

      was made to postpone the scheduled hearing until March 21, 2012, to

      accommodate the needs of Rosemary Huffman, a representative of Landowner.

      On March 9, 2012, another draft of the Millersville Plan was completed in

      anticipation of the March 21, 2012 adoption hearing, and the plan was made

      available to the public on the same day in the Division of Planning’s Office and

      on the City’s website. One or more of the previous drafts of the Millersville



      Court of Appeals of Indiana | Opinion 49A05-1407-PL-323 | August 12, 2015   Page 3 of 20
      Plan described Landowner’s Parcel (the “Initial Description”) as “[t]his parcel

      along the east side of Brendan Forest drive [sic] consists of approximately 20

      acres.” Appellant’s Appendix at 217.


[5]   On April 25, 2012, a public meeting was held at which Landowner was given

      the following text describing Landowner’s Parcel (the “Revised Description”):

              Brendan Forest is a meandering, low-traffic street. An approximately
              21-acre site is located along most of the east side of the street. The
              remainder of the street’s frontage is developed with single-family lots
              ranging in size from one-half to five acres. The Critical Area is a
              transitional zone with Woollens Garden, a City-owned, State-
              designated nature preserve to the north; Brendonwood, a historic, low-
              density neighborhood to the west; a large apartment community to the
              east; and 56th Street, a high-volume arterial street to the south. The I-
              465/56th Street interchange is nearby.


      Id. at 216. Landowner requested time to review this additional language, and

      Keith Holdsworth, Principal Planner with the Department of Metropolitan

      Development Planning Division, suggested that the language be discussed at a

      public meeting on May 2, 2012. A public meeting was scheduled for May 2,

      2012, to discuss the Millersville Plan, but Landowner instead requested a

      separate meeting for May 9, 2012, to discuss the Revised Description.


[6]   Another draft of the Millersville Plan was completed on May 4, 2012 in

      anticipation of a May 16, 2012 adoption hearing. The May 4, 2012 draft

      described Landowner’s Parcel using the Initial Description and was made

      available on the City’s website, and notice of the hearing was provided in a

      Notice of Public Hearing which was published in the Court and Commercial


      Court of Appeals of Indiana | Opinion 49A05-1407-PL-323 | August 12, 2015       Page 4 of 20
      Record on May 4, 2012, and in the Indianapolis Star on May 5, 2012. At the

      scheduled May 9, 2012 public meeting, a decision was made to include the

      Revised Description provided to Landowner on April 25, 2012, in the

      Millersville Plan. On May 11, 2012, a final draft of the Millersville Plan was

      completed, in preparation for the May 16, 2012 adoption hearing, which

      formally replaced the Initial Description of Landowner’s Parcel with the

      Revised Description of Landowner’s Parcel. According to Holdsworth’s

      affidavit, the Revised Description was added “in response to [Landowner’s]

      request to add more description of the area.” Appellant’s Appendix at 217.

      The final draft of the Millersville Plan, in its entirety, was made available to the

      public on Friday, May 11, 2012 in the Division of Planning and the Office of

      the City-County Council, as well as on the City’s website on May 14, 2012.


[7]   On May 16, 2012, the MDC held a public hearing and voted on and approved

      Resolution No. 2012-CPS-R-001 (the “Resolution”) which amended the

      Comprehensive Plan for Marion County by adopting the Millersville Plan.

      Specifically, the Resolution stated:

              Be it resolved that, pursuant to I.C. 36-7-4, the Metropolitan
              Development Commission of Marion County, Indiana, hereby
              amends the Comprehensive or Master Plan for Marion County,
              Indiana, by the adoption of the Millersville at Fall Creek Valley Village
              and Corridor Plan, which is attached hereto and incorporated by
              reference as an amendment to the Comprehensive or Master Plan of
              Marion County, Indiana.


      Appellee’s Appendix at 144. The Millersville Plan designated Landowner’s

      Parcel as being located in Critical Area #4, established land use


      Court of Appeals of Indiana | Opinion 49A05-1407-PL-323 | August 12, 2015      Page 5 of 20
      recommendations for the area and described Landowner’s Parcel using the

      Revised Description.1


[8]   On June 15, 2012, Landowner filed a “Verified Action For Mandate And

      Request For Declaratory Relief” in which it asserted that the MDC failed to

      adhere to the public notice requirements for amendments to a comprehensive

      plan provided for in Ind. Code §§ 36-7-4-507 and -511(a) as well as the

      requirements for township advisory committees provided by Ind. Code § 36-7-4-

      504.5, and Marion County Ordinance Section 231-401 for amending a

      township’s comprehensive plan, prior to adopting the Millersville Plan. The

      complaint requested a declaratory judgment that the MDC’s approval of the

      Resolution was invalid for failure to adhere to Indiana law, and that the MDC

      be required to use township advisory committees and abide by the public notice

      requirements set forth in Ind. Code §§ 36-7-4-504.5 and -507, as well as attorney

      fees, costs, and all other just and proper relief.


[9]   On September 6, 2012, the MDC filed an answer and asserted affirmative

      defenses against Landowner, and on March 28, 2013, filed an amended answer.




      1
       The remainder of the description of Landowner’s Parcel, which Landowner does not address in its brief,
      provides:
              Development in this area should act as a buffer between the higher density residential to
              the east and the lower density residential to the west. It is critical to provide an
              appropriate transitional density for this area that is compatible with surrounding land
              uses. High-quality woodlands and slopes greater than 10% found on the northern portion
              of the parcel should be protected from overdevelopment.
      Appellee’s Appendix at 82-83.



      Court of Appeals of Indiana | Opinion 49A05-1407-PL-323 | August 12, 2015                      Page 6 of 20
       Both answers asserted that Landowner lacked standing to seek a declaratory

       judgment under Ind. Code § 34-14-1-2.


[10]   On September 25, 2013, Landowner filed a motion for summary judgment

       along with a memorandum in support of summary judgment. Landowner

       argued that summary judgment should be granted in its favor because the MDC

       failed to establish township advisory committees as required by Ind. Code § 36-

       7-4-504.5 and Marion County Ordinance Section 231-401. Landowner further

       argued that the MDC did not provide the public with ten days notice of the

       entire plan, as required by Ind. Code § 36-7-4-507, when it admitted that the

       Millersville Plan, which was finalized on May 11, 2012, was not made available

       for public viewing until May 14, 2012, and was approved and adopted by the

       MDC at the May 16, 2012 public hearing less than ten days later.


[11]   On January 27, 2014, the MDC filed its response to Landowner’s motion for

       summary judgment, a cross-motion for summary judgment, and its designated

       evidence, which included Holdsworth’s affidavit. The MDC argued that

       Landowner could not show “(1) the Millersville Plan affected [Landowner’s]

       property rights (2) that [Landowner] was harmed because the final draft of the

       Millersville Plan was not published within ten days of adoption or that (3) the

       Millersville Plan is a township plan which requires a Citizen Advisory

       Committee.” Appellant’s Appendix at 195-196.


[12]   On April 24, 2014, the trial court held a hearing on the cross-motions for

       summary judgment at which the court heard argument from both parties.



       Court of Appeals of Indiana | Opinion 49A05-1407-PL-323 | August 12, 2015   Page 7 of 20
       Landowner’s counsel argued that the land use targeted for Landowner’s Parcel

       by the Millersville Plan “uses it basically as a buffer between an apartment

       building on the east and a nicer neighborhood to the west, and she doesn’t think

       that’s appropriate which was the basis for her objection [to the Millersville Plan]

       in the first place.” Transcript at 4. Counsel for Landowner also contended that

       the fact that the MDC admitted the Millersville Plan “is given weight in

       determining whether or not [Landowner] can use [the] land in any manner

       other than that set forth in this plan” establishes that Landowner has been

       harmed. Id. Landowner’s counsel added that Landowner had “standing as a

       member of the community who was supposed to be protected by . . . the

       requirement of at least ten days public notice and availability of the plan before

       it’s passed, as well as the creation of a Township Advisory Committee . . . .”

       Id. Landowner’s counsel further argued that “there’s also some question as to

       whether some of the language that was finally put into the final version was

       made available to my client before the 11th of May.” Id. Landowner’s counsel

       noted that the Millersville Plan was “an amendment to the comprehensive plan

       for that county, but with regards to [] Lawrence and . . . Washington Township

       – it’s a revision” and that the Millersville Plan “is a smaller portion of the entire

       comprehensive plan for Marion County” but revises “the Lawrence and

       Washington Township plans in large part because entire chunks of those plans

       no longer apply and have been replaced.” Id. at 6.


[13]   Counsel for the MDC argued that Landowner “does not have standing to bring

       this lawsuit” because it lacked “a current justiciable interest” and that



       Court of Appeals of Indiana | Opinion 49A05-1407-PL-323 | August 12, 2015   Page 8 of 20
       Landowner’s “concerns about how it might or might not be able to use its

       property in the future . . . are hypothetical.” Id. at 9. As to notice of the

       Revised Description of Landowner’s Parcel, counsel stated that Landowner

       received “this proposed language on April 25th.” Id. at 11-12. As to procedures

       for convening township advisory committees, counsel argued that “we were not

       required to convene two different Township committees. This plan is a

       neighborhood plan. It addresses the Millersville Fall Creek Valley

       Neighborhood,” and that the Millersville Plan does not “address an entire

       township and so it’s our position therefore that it’s not a comprehensive plan

       for an entire township.” Id. at 12.


[14]   Landowner’s counsel argued that the Revised Description “was not given to my

       client before [the hearing]. My client was not made aware that it was in the

       plan,” and that Landowner objected to the description because it wanted “to

       develop this land [and] the current zoning allows her to do so, I believe at three

       to five units per acre. This plan lowers that to one to one and half . . . .” Id. at

       14-15. On the same day, the court entered an order granting the MDC’s cross-

       motion for summary judgment.


[15]   On May 27, 2014, Landowner filed a motion to correct error, arguing that the

       MDC “admit[ted] that the Millersville Plan revises the township comprehensive

       plans for Washington and Lawrence Townships in its Answer,” that revising

       the Lawrence and Washington Comprehensive Plans without the required

       township advisory committees was error, and that the MDC failed to publish

       the entire Millersville Plan ten days before the meeting, as required by statute.


       Court of Appeals of Indiana | Opinion 49A05-1407-PL-323 | August 12, 2015   Page 9 of 20
       Appellant’s Appendix at 234. Landowner contended that the MDC stated in an

       interrogatory that it would be amending its answer “to remove the affirmative

       defense that [Landowner] has no standing,” that the MDC should be estopped

       from arguing lack of standing because its land is affected by the Millersville

       Plan, and that Landowner is “the very type of person whom [sic] is supposed to

       be protected by the notice provisions and requirements that township advisory

       committees be used as set forth in Indiana law.” Id. at 237.


[16]   On June 16, 2014, the MDC filed its statement in opposition to plaintiff’s

       motion to correct error, arguing that Landowner lacked standing to challenge

       the Millersville Plan because Landowner had not yet made a decision about

       how to develop its land, for which “there is an entirely separate process to make

       actual land use and zoning decisions,” that Landowner has “no current plans”

       for development of the area, and that it did not waive lack of standing as an

       affirmative defense. Id. at 247. On the same day, the MDC also filed a motion

       for leave to amend its answer to conform to the evidence and noted that it

       “admitted several allegations, which it very plainly should not have” and

       acknowledged that the Millersville Plan “did not amend or revise the

       comprehensive plans ‘for’ Lawrence and Washington Townships.” Appellee’s

       Appendix at 146 (footnote omitted).


[17]   On June 20, 2014, the trial court entered an order denying Landowner’s motion

       to correct error and granting the MDC’s motion for leave to amend its answer

       to conform to the evidence.




       Court of Appeals of Indiana | Opinion 49A05-1407-PL-323 | August 12, 2015   Page 10 of 20
                                                     Discussion

[18]   The issue is whether the trial court abused its discretion when it denied

       Landowner’s motion to correct error or erred when it granted the MDC’s cross-

       motion for summary judgment.


[19]   Generally, we review rulings on motions to correct error for an abuse of

       discretion. Ind. Bureau of Motor Vehicles v. Charles, 919 N.E.2d 114, 116 (Ind. Ct.

       App. 2009); Speedway SuperAmerica, LLC v. Holmes, 885 N.E.2d 1265, 1270 (Ind.

       2008), reh’g denied. An abuse of discretion occurs if the trial court’s decision is

       against the logic and effect of the facts and circumstances before it, or the

       reasonable inferences drawn therefrom. Lighty v. Lighty, 879 N.E.2d 637, 640

       (Ind. Ct. App. 2008), reh’g denied.


[20]   Summary judgment is appropriate only where there is no genuine issue of

       material fact and the moving party is entitled to judgment as a matter of

       law. Ind. Trial Rule 56(C); Mangold ex rel. Mangold v. Ind. Dep’t of Natural

       Res., 756 N.E.2d 970, 973 (Ind. 2001). All facts and reasonable inferences

       drawn from those facts are construed in favor of the nonmovant. Mangold, 756

       N.E.2d at 973. Our review of a summary judgment motion is limited to those

       materials designated to the trial court. Mangold, 756 N.E.2d at 973. In

       reviewing a trial court’s ruling on a motion for summary judgment, we may

       affirm on any grounds supported by the Indiana Trial Rule 56 materials. Catt v.

       Bd. of Commr’s of Knox Cnty., 779 N.E.2d 1, 3 (Ind. 2002). In ruling upon a

       motion for summary judgment, facts alleged in a complaint must be taken as

       true except to the extent that they are negated by depositions, answers to

       Court of Appeals of Indiana | Opinion 49A05-1407-PL-323 | August 12, 2015   Page 11 of 20
       interrogatories, affidavits, and admissions on trial or by testimony presented at

       the hearing on a motion for summary judgment. Cowe by Cowe v. Forum Grp.,

       Inc., 575 N.E.2d 630, 633 (Ind. 1991). The fact that the parties make cross-

       motions for summary judgment does not alter our standard of review. Hartford

       Acc. & Indem. Co. v. Dana Corp., 690 N.E.2d 285, 291 (Ind. Ct. App. 1997), trans.

       denied. Instead, we must consider each motion separately to determine whether

       the moving party is entitled to judgment as a matter of law. Id. In the appellate

       review of summary judgment, “[q]uestions of statutory interpretation are

       questions of law, which are reviewed on a de novo basis by appellate courts.”

       Moryl v. Ransone, 4 N.E.3d 1133, 1137 (Ind. 2014) (quoting Klotz v. Hoyt, 900

       N.E.2d 1, 5 (Ind. 2009)).


[21]   Landowner asserts that the MDC should be estopped from asserting that it

       lacks standing, that Landowner is the type of person the township advisory

       committee and notice provisions were intended to protect, that Landowner’s

       interests are affected and have suffered injury because the Millersville Plan is a

       factor that determines land use, and that there is a disputed issue of fact as to

       whether Landowner had more than ten days notice of the language describing

       the parcel before the hearing at which the Millersville Plan was approved and

       adopted. The MDC contends that Landowner cannot show that it was injured

       by the adoption of the Millersville Plan because none of its rights in the land

       have been altered, as the zoning remains the same as it was prior to the plan’s

       adoption, and that the MDC has not waived the lack of standing defense

       because Landowner had the opportunity to respond to the defense and



       Court of Appeals of Indiana | Opinion 49A05-1407-PL-323 | August 12, 2015   Page 12 of 20
       responded to it at the April 24, 2014 oral argument on the parties’ cross-

       motions for summary judgment.


[22]   Initially to the extent that the MDC argues that Landowner lacked standing, we

       observe that standing has been defined as “having ‘sufficient stake in an

       otherwise justiciable controversy to obtain judicial resolution of that

       controversy.’” Ind. Civil Rights Comm’n v. Indianapolis Newspapers, Inc., 716

       N.E.2d 943, 945 (Ind. 1999) (quoting BLACK’S LAW DICTIONARY 1405 (6th ed.

       1990)), reh’g denied. Standing requires that a party have “a personal stake in the

       outcome of the lawsuit and must show that he or she has sustained or was in

       immediate danger of sustaining, some direct injury as a result of the conduct at

       issue.” Foundations of East Chicago, Inc. v. City of East Chicago, 927 N.E.2d 900,

       903 (Ind. 2010), clarified on rehearing by 933 N.E.2d 874 (quoting Higgins v.

       Hale, 476 N.E.2d 95, 101 (Ind. 1985).


[23]   The record reveals that the MDC never withdrew its affirmative defense of lack

       of standing, notwithstanding the fact that the MDC stated in an interrogatory

       regarding its statement that “[Landowner] has no standing to seek declaratory

       judgment” with the response, “[o]bjection, this contention interrogatory is

       premature. Subject to and without waiving said objection, Counsel will be

       amending her answer to withdraw this affirmative defense.” Appellant’s

       Appendix at 187. Also, as noted, Landowner presented arguments specifically

       responding to the MDC’s contention that it did not have standing to challenge

       the Millersville Plan at the summary judgment hearing, contended that the

       Millersville Plan functioned as a factor weighing against its future land use, and


       Court of Appeals of Indiana | Opinion 49A05-1407-PL-323 | August 12, 2015   Page 13 of 20
       argued that Landowner had the right to the local government’s compliance with

       statutes relevant to preparing a comprehensive plan. The MDC argued that

       Landowner did not have standing to challenge the Millersville Plan, and thus,

       the MDC did not withdraw its affirmative defense that Landowner did not have

       standing.


[24]   An examination of whether Landowner had standing requires an analysis of the

       role of a comprehensive plan in subsequent land-use decisions, and the relevant

       statutes related to comprehensive plans. Ind. Code § 36-7-4-504.5, titled

       “Comprehensive plan; township advisory committee,” provides:

               (a) In preparing or revising a comprehensive plan for a township, the
               legislative body of the consolidated city shall adopt an ordinance
               requiring the plan commission to establish an advisory committee of
               citizens interested in problems of planning and zoning for that
               township, a majority of whom shall be nominated by the township
               legislative body.
               (b) An advisory committee created under subsection (a) must include a
               representative of the affected township legislative body as determined
               by procedures established in an ordinance adopted by the legislative
               body of the consolidated city.


       Marion County Ordinance Section 231-401, titled “Township advisory

       committees,” provides in part:

               (a) This section is adopted to comply with IC 36-7-4-504.5.
               (b) The metropolitan development commission shall establish an
               advisory committee of township citizens interested in problems of
               planning and zoning in that township to provide advice in preparing or
               revising the comprehensive plan for any township in Marion County.




       Court of Appeals of Indiana | Opinion 49A05-1407-PL-323 | August 12, 2015       Page 14 of 20
       Ind. Code § 36-7-4-507, titled “Comprehensive plan; notice and hearings before

       adoption,” provides:

               Before the approval of a comprehensive plan, the plan commission
               must:
               (1) give notice and hold one (1) or more public hearings on the plan;
               (2) publish, in accordance with IC 5-3-1, a schedule stating the times
               and places of the hearing or hearings. The schedule must state the time
               and place of each hearing, and state where the entire plan is on file and
               may be examined in its entirety for at least ten (10) days before the
               hearing.


[25]   To the extent the parties’ arguments require us to interpret Ind. Code §§ 36-7-4-

       504.5 and -507, we note that “[c]lear and unambiguous statutes leave no room

       for judicial construction.” Basileh v. Alghusain, 912 N.E.2d 814, 821 (Ind. 2009).

       But when a statute is susceptible to more than one interpretation it is deemed

       ambiguous and thus open to judicial construction. Id. If the statutory language

       is clear and unambiguous, we require only that the words and phrases it

       contains are given their plain, ordinary, and usual meanings to determine and

       implement the legislature’s intent. State v. Am. Family Voices, Inc., 898 N.E.2d

       293, 297 (Ind. 2008), reh’g denied. Courts may not “engraft new words” onto a

       statute or add restrictions where none exist. Kitchell v. Franklin, 997 N.E.2d

       1020, 1026 (Ind. 2013).


[26]   Landowner’s position is that summary judgment should have been granted in

       its favor because the MDC failed to establish township advisory committees

       when it drafted and passed the Millersville Plan, the use of which, Landowner

       contends, are required under Ind. Code § 36-7-4-504.5(a)-(b) and Marion

       Court of Appeals of Indiana | Opinion 49A05-1407-PL-323 | August 12, 2015       Page 15 of 20
       County Ordinance Section 231-401. Landowner also maintains that the MDC

       failed to adhere to Ind. Code § 36-7-4-507, by not providing notice ten days

       prior to the adoption hearing as to where the Millersville Plan was on file and

       could be examined in its entirety before holding a hearing on its approval and

       adoption.


[27]   The MDC maintains that township advisory committees were not required

       because the Millersville Plan amended the Marion County Comprehensive

       Plan, which does not require the formation of township advisory committees,

       that the plan did not revise the comprehensive plans for Lawrence and

       Washington Township, and that neither Ind. Code § 36-7-4-504.5(a) nor

       Marion County Ordinance Section 231-401(b) requires the formation of

       township advisory committees in preparing a comprehensive plan for a

       neighborhood, small community, or sub-area. The MDC asserts that it actually

       or substantially complied with the notice requirement, that the word “entirety”

       is undefined but does not necessarily mean word-for-word identical, that the

       change to the description of Landowner’s Parcel did not alter any of the plan’s

       substantive findings or recommendations, and that prior judicial decisions have

       held that substantial compliance with statutory notice requirements has been

       treated as compliant with the law in other contexts.


[28]   Landowner is challenging the Revised Description, but its primary issue with

       the Millersville Plan appears to be the characterization, land use, and

       development recommendations it adopts for Landowner’s Parcel, which lies




       Court of Appeals of Indiana | Opinion 49A05-1407-PL-323 | August 12, 2015   Page 16 of 20
       within the area designated as Critical Area #4. Regarding the role of a

       comprehensive plan, the Indiana Supreme Court has acknowledged that:

               [a] comprehensive plan is a community’s long-range vision for
               physical development, but implementing the plan as regards a given
               piece of real estate may not be the best course of action for the
               community on a given day. A comprehensive plan is “a guide to
               community development rather than an instrument of land-use
               control.”


       Borsuk v. Town of St. John, 820 N.E.2d 118, 121 (Ind. 2005) (citations omitted).

       Recommendations in a comprehensive plan serve to guide subsequent decision-

       makers rather than establish present and binding land-use controls. The

       Indiana Code provides that, should a parcel’s zoning change, and, here, the

       zoning applicable to Landowner’s Parcel has not changed, the plan commission

       and the legislative body “shall pay reasonable regard to” a number of

       enumerated factors: “(1) the comprehensive plan; (2) current conditions and the

       character of current structures and uses in each district; (3) the most desirable

       use for which the land in each district is adapted; (4) the conservation of

       property values throughout the jurisdiction; and (5) responsible development

       and growth.” Ind. Code § 36-7-4-603 (Emphasis added). A comprehensive

       plan pertaining to a parcel is one of several factors that a plan commission may

       subsequently consider should it decide at a later time to alter the zoning

       applicable to a parcel.


[29]   Landowner’s Parcel is located in the area described as Critical Area #4 in the

       Millersville Plan, and thus Landowner’s Parcel is directly affected by the



       Court of Appeals of Indiana | Opinion 49A05-1407-PL-323 | August 12, 2015    Page 17 of 20
       Millersville Plan and its land-use recommendations. The 500 series of the

       Indiana Code governs the adoption of comprehensive plans and includes

       provisions for township advisory committees and notice and hearing

       requirements. A comprehensive plan is one of several factors that determines

       future, binding land-use regulations. Landowner has shown that Landowner’s

       Parcel is or would be directly impacted by the recommendations of the

       Millersville Plan. Accordingly, we conclude that Landowner has standing to

       challenge the Millersville Plan. See Foundations of East Chicago, 900 N.E. 2d at

       903 (“The fact that Section 302 has the potential to set in motion events under

       which the Commission might eliminate that flow of money is sufficient to find

       standing under these circumstances.”).


[30]   The text of Ind. Code § 36-7-4-504.5(a) requires the formation of township

       advisory committees when “preparing or revising a comprehensive plan for a

       township” but does not include provisions requiring township advisory

       committees when a neighborhood or sub-area is the subject of a comprehensive

       plan. The Resolution adopting the Millersville Plan states that it “amend[ed]

       the Comprehensive or Master Plan for Marion County, Indiana, by the

       adoption of the Millersville at Fall Creek Valley Village and Corridor Plan,

       which is attached hereto and incorporated by reference as an amendment to the

       Comprehensive or Master Plan of Marion County, Indiana.” Appellee’s

       Appendix at 144. The Millersville Plan was prepared as a village and corridor

       plan for the Millersville neighborhood, and not as a revision to the

       comprehensive plans for either Lawrence or Washington Township. Although



       Court of Appeals of Indiana | Opinion 49A05-1407-PL-323 | August 12, 2015   Page 18 of 20
       Millersville partially lies within both Lawrence and Washington Township, the

       designated evidence further reveals that the Millersville Plan was not prepared

       as a revision to the existing comprehensive plans for either Lawrence or

       Washington Township and that the process for adopting township

       comprehensive plans, including the formation of township advisory

       committees, was followed at the time comprehensive plans were adopted for

       those townships. Under the circumstances, we cannot say that township

       advisory committees were required.


[31]   Ind. Code § 36-7-4-501 provides that a “comprehensive plan shall be approved

       by resolution in accordance with the 500 series . . . . The plan commission shall

       prepare the comprehensive plan.” Ind. Code § 36-7-4-507 requires that the

       schedule must “state where the entire plan is on file and may be examined in its

       entirety for at least ten (10) days before the hearing.” (Emphasis added). The

       notice and hearing requirement in the 600 series governing zoning allows for

       substantial compliance. See Ind. Code § 36-7-4-604(e) (“A zoning ordinance

       may not be held invalid on the ground that the plan commission failed to

       comply with the requirements of this section, if the notice and hearing

       substantially complied with this section.”). However, the MDC does not point

       to a similar provision allowing for substantial compliance in the context of

       amendments to comprehensive plans. The designated evidence shows that,

       although Landowner received a copy of the Revised Description on April 25,

       2012, the final draft of the Millersville Plan was not available to the public until,

       at the earliest, May 11, 2012, was available on the City’s website on May 14,



       Court of Appeals of Indiana | Opinion 49A05-1407-PL-323 | August 12, 2015   Page 19 of 20
       2012, and was adopted on May 16, 2012, five days after publication of the final

       draft. We conclude that the Millersville Plan did not comply with the

       requirement that the plan be published in its entirety ten days prior to a hearing

       pursuant to Ind. Code § 36-7-4-507. On this basis, we reverse the trial court’s

       order granting the MDC’s cross-motion for summary judgment and its order

       denying Landowner’s motion to correct error and remand for further

       proceedings.


                                                     Conclusion

[32]   In summary, we conclude that Landowner had standing to challenge the

       Millersville Plan, and that the MDC did not comply with the statutorily

       required notice and hearing provisions prior to the hearing on the Millersville

       Plan’s adoption.


[33]   For the foregoing reasons, we reverse the trial court’s denial of Landowner’s

       motion to correct error and the trial court’s entry of summary judgment in favor

       of the MDC and against Landowner, and we remand for further proceedings.


[34]   Reversed and remanded.

       Bailey, J., and Robb, J., concur.




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