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IN THE INDIANA COURT OF APPEALS
Cause No. 10A01-9906-CV-187
T.W. THOM CONSTRUCTION, INC. ) ) Appeal from the Clark Circuit Appellant ) Court (Plaintiff Below) ) ) vs. ) The Honorable Roger Davis ) Special Judge CITY OF JEFFERSONVILLE, INDIANA ) and HYUN T. LEE ) Cause No. 10C01-9804-CT-170 ) Appellees ) (Defendants Below) )
APPELLANT'S BRIEF
Richard L. Mattox Derrick H. Wilson MATTOX & MATTOX 420 Elsby Building P.O. Box 1203 New Albany, IN 47151-1203 (812) 944-8005 Attorneys for Appellant
TABLE OF CONTENTS
TABLE OF CONTENTS i
TABLE OF CITATIONS AND AUTHORITIES ii
I. STATEMENT OF THE ISSUES 1
II. STATEMENT OF THE CASE
III. STATEMENT OF THE FACTS
IV. SUMMARY OF THE ARGUMENT
V. ARGUMENT
A.
B.
VI. CONCLUSION
-i- TABLE OF AUTHORITIES I. STATEMENT OF THE ISSUES
A. WHETHER THE TRIAL COURT ERRED IN FINDING THAT HYUN LEE COMPLIED WITH 410 IAC 662.
B. WHETHER THE TRIAL COURT ERRED IN FINDING THAT THE CITY OF JEFFERSONVILLE ZONING ORDINANCE ALLOWED MOBILE HOME PARKS IN AN AREA ZONED B3.
C. WHETHER THE TRIAL COURT ERRED IN IMPLICITLY FINDING THAT LEE, INDIVIDUALLY, HAD APPROVAL TO OPERATE A MOBILE HOME PARK. II. STATEMENT OF THE CASE
The present case involves a dispute between adjoining land owners over the construction of a mobile home park. T.W. Thom Construction, Inc. (hereinafter "Thom"), is constructing a residential subdivision in the City of Jeffersonville. Hyun Lee is an land owner who intends to build a mobile home park directly to Thom's development. Thom filed an action to enjoin the construction of Lee's mobile home park and for a declaratory judgment as to the interpretation of the City of Jeffersonville's zoning code on April 8, 1998. Plaintiff also requested damages against the City of Jeffersonville. On October 27, 1998, Hyun Lee (hereinafter "Lee), filed a Motion for Summary Judgment. On February 5, 1999, after hearing, the Court entered a judgment granting the Motion for Summary Judgment as it related to Lee only. Plaintiff timely filed his Praecipe on March 3, 1999, and filed the Record of Proceedings on May 28, 1999. III. STATEMENT OF THE FACTS 1. THE TRIAL COURT ERRED IN FINDING THAT DEFENDANT COMPLIED WITH THE STATUTORY AND REGULATORY REQUIREMENTS FOR MOBILE HOME PARKS .
Pursuant to 410 IAC 6-6-2, mobile home park sites shall meet all requirements of the local zoning commission and shall be approved by said commission before construction begins. In response to Plaintiff's Interrogatories to the City of Jeffersonville, the City indicated that the Defendant filed a site plan and utility plan, erosion and sediment control plan, sanitary sewer details and a topographic plan, none of which, aside from the sanitary sewer details, required city approval. (R. at 261-262). Nothing in the City of Jeffersonville's responses indicates that the local zoning commission actually approved the construction of the mobile home park. In response to Plaintiff's Interrogatories asking for any and all filings Defendant Lee made with the City of Jeffersonville in connection with development of the property, Defendant Lee stated only that the Jeffersonville Department of Public Works approved a request to connect sanitary sewer. (R. at 278). Defendant Lee failed to identify any other approvals he sought in connection with development of the construction. Pursuant to the Indiana Administrative Code, Lee had to obtain approval from the local zoning commission prior to actually beginning construction. Lee failed to do so because Lee allegedly began construction in March of 1998. (R. at 274). In response to Plaintiff's Interrogatories asking the City to identify any and all applications filed with the City of Jeffersonville to have a mobile park within the last ten years, the City of Jeffersonville confirmed that no such applications had been filed, particularly none by Defendant Lee. (R. at 262-63). In the absence of express zoning commission approval, Defendant cannot operate a mobile home park. Gary Meltzer, of the Indiana Department of Health, noted that approval by the state was not a guarantee that a park is proper in a particular place. (R. at 286). He concurred that an applicant was required to receive local governmental approval for a mobile home park. (R. at 284). 2. THE TRIAL COURT ERRED IN ITS INTERPRETATION OF THE CITY OF JEFFERSONVILLE ZONING ORDINANCE .
At all times relevant hereto, the City of Jeffersonville had a zoning code in effect. The zoning code provided that no building or land shall be used and no building should be erected, reconstructed or structurally altered which arranged, intended or designed to be used for any purpose other than a use which is permitted and specified in a district in which such building or land is located . (R. at 288, Section 156.05.) The present zoning ordinance was last codified in 1991. A zoning ordinance is to be interpreted like a statute -- words are to be used in their common and ordinary meaning and all parts of the statute are to be given the fact. In interpreting the zoning code of Jeffersonville, Indiana, it is appropriate to begin with the general provisions regarding all zoning classifications. Pursuant to Section 156.05 "no building or land shall be used and no building shall be erected, reconstructed or structurally altered, which is arranged, intended or designed to be used for any purpose other than a use which is permitted and specified in a district in which such building or land is located." Several other sections of the zoning code refer back to this general principle that use must be specifically permitted and specified in a district to be allowed. See , e.g. , Section 156.06 (regarding height of structures indicating that no building shall be erected to exceed in height the limits established and specified for the use in the district in which such building is located). (R. at 92). See , Section 156.07 Yard, Lot Area, and Sides of Building . (No building shall be erected . . . in any manner which will encroach upon or reduce in any manner the yards, lot area per family, ground floor area of residential buildings, or lot coverage regulations establish and specified for the use and the district in which such building is located). (R. at 92). The general zoning provisions state that its provisions are a minimum guideline; if a subsequent ordinance imposes a lesser restriction upon the use of buildings or land, the general zoning code prevails. (R. at 94, Section 156.20). The original zoning code, prior to subsequent amendments in 1984, specified that mobile home parks were regarded as special exceptions and allowed only in B1, B2 or B3 districts. (R. at 291). Under the prior zoning code, a land owner had to apply for a special exception which was then referred to the commissioner for investigation as to the location and character of the special exception and how it would affect the master plan. (R. at 291). The commission then reported the results of the study to the board and the board proceeded to have a hearing on the special exception application. (R. at 291). Under the prior code, the special exception had to meet a three part test. (R. at 291). The exception had to be located in a district where such use might be permitted in the requirements set forth for special exceptions must be met, the special exception itself must be consistent with the purpose and intent of the ordinance, and would not substantially and permanently injure the appropriate use of neighboring property and will serve the public convenience and welfare. The current code also allows for special exceptions. (R. at 125-126). Plaintiff's interpretation of the zoning ordinance is consistent with the regulatory framework and the overall purposes of the City of Jeffersonville zoning code. It is undisputed that a mobile home can only be placed in a mobile home park. It is undisputed that a mobile home park is not permitted and specified in any particular district within the zoning classifications adopted by the City of Jeffersonville. Pursuant to the prior zoning code, the City was concerned enough about the placement of mobile home park to specify that a mobile home park could only be located by special exception. This special exception process requires an application to be submitted to the building commission and a determination, after a hearing, that the special exception itself was appropriate. Under the current zoning code, the same general process applies. (R. at 125-126). Upon receipt of an application for special exception (which includes special uses, contingent uses or conditional uses or, by definition, a variance) (R. at 89), the matter is referred to the building commissioner and then to the Board of Zoning Appeals. (R. at 90). A variance, in turn, is defined as a modification of the specific requirements of the chapter granted by the Board of Zoning Appeals. The variance or special exception process expressly protects the interest of both the land owner and a prospective developer. The Board is required to consider whether the use and value of the area adjacent to the property would be affected in a substantially adverse manner and whether the proposed variance or exception will be injurious to the public health safety, morals and general welfare of the community. Under the present circumstances, nothing prohibits Defendant Lee from going through the special exception process to obtain permission to construct a mobile home park. Plaintiff respectfully submits that this is consistent with the overall structure of the zoning code. The zoning code requires that a particular use be permitted and specified within a particular district. If it is not permitted or specified, a person should seek a special exception. By seeking a special exception, the interests of all the relevant parties are submitted to a public hearing and any aggrieved party has the right to seek an appeal and an appropriate court review if necessary. This is consistent with the prior zoning ordinance and there is no indication that the City, in amending the zoning code desired to preclude the application of the special exception process under the new code. Moreover, this is consistent with the statutory and regulatory framework under the Indiana Code and the Indiana Administrative Code as discussed supra . By contrast, under the interpretation proposed by the City and Defendant Lee, a mobile home park could be placed in any location without any consideration for its impact upon adjoining landowners or the health and welfare of local residents. Moreover, under the Defendant's interpretation, Plaintiff has no right to seek review of the project or formal review in a court proceeding because there is nothing to appeal from. Plaintiff has been denied the right to a full public hearing to air his concerns about the development of this particular project. Plaintiff respectfully submits that the City's interpretation particularly is an abdication of its statutory responsibilities. The City has an obligation to set reasonable limits on such matters as set back, ingress, egress, utilities and the like. In response to Plaintiff's Interrogatories, Defendant Lee has clearly indicated that he has no intention of complying with the local requirements for the set backs and the like. In response to Plaintiff's question concerning proper set backs, Defendant Lee responded that the proper set backs were that which were approved by the State of Indiana. Likewise, the drainage requirements were only those approved by the State of Indiana. (Interrogatory Response Nos. 3 and 4). This is exactly the type of situation that the zoning code, and specifically the special exception process was intended to prevent. As part of its deliberation, the Board of Zoning Appeals must consider, and make written finding, concerning ingress, egress, off street parking, set backs, screening and buffering, utilities and general compatibility to adjoining properties. As noted earlier, a large portion of the cases interpreting mobile home placement in the statement of Indiana have concerned special exceptions or special variances sought to construct mobile home parks. Under the prior zoning code of Jeffersonville, Indiana, and the current code, as a mobile home park is not expressly allowed and permitted in any particular district, the person seeking such a use is required to have local zoning approval. A special exception is the appropriate way to obtain approval. 3. THE TRIAL COURT ERRED IN FINDING THAT LEE INDIVIDUALLY WAS ENTITLED TO OPERATE A MOBILE HOME PARK .
All the documents produced by Defendant, Lee, concerning correspondence between the Indiana State Department of Health indicate that the owner/developer of the mobile home park is an entity known as KS Developers Inc. KS Developers Inc. is a Kentucky corporation set up in 1995. By contrast, the property where the trailer park is to be built was owned by Fordons, Inc. until February 1998 when it was transferred to investment exchange company, a Kentucky corporation. (R. at 295-298). In July of 1998, Investment Exchange Company transferred property to Hyun Lee and Chun Lee individually. (R. at 295-209). KS Developers Inc. applied for the application in 1996 identifying itself as the owner of the property in question. In fact, KS Developers Inc. did not own the property during the relevant time period. The approval letter from the Indiana State Department of Health grants approval to KS Developers Inc. to develop a mobile home part subject to approval from all necessary local agencies. (R. at 229). All subsequent correspondence again referred to KS Developers Inc. as the real party in interest. In his Affidavit attached to the Motion for Summary Judgment, Hyun Lee admits that he is an owner of the real estate located in Jeffersonville, Indiana. The property is not currently owned by KS Developers Inc.. It is owned by Hyun Lee and Chun Lee, individually. (R. at 229). By statute, a mobile home park license cannot be transferred without approval from the Indiana Department of Health. I.C. 16-41-27-33. Even if the Defendant's allegation that a mobile home park can be placed in any place in the city limit without any formal type of approval proves persuasive, Defendant Lee fails to come within the benefit of the ordinance since the requested mobile home park is not duly licensed because Defendant Lee does not hold a license. KS Developers Inc. holds the appropriate license. Nothing suggests that Defendant Lee individually currently hold the authority from the Indiana Department of Health to operate a mobile home park.
IN THE INDIANA COURT OF APPEALS
Cause No.
T.W. THOM CONSTRUCTION, INC. ) ) Appeal from the Clark Circuit Appellant ) Court (Plaintiff Below) ) ) vs. ) The Honorable Roger Davis ) Special Judge CITY OF JEFFERSONVILLE, INDIANA ) and HYUN T. LEE ) Cause No. 10C01-9804-CT-170 ) Appellees ) (Defendants Below) )
AFFIDAVIT OF FILING OF SERVICE
Derrick H. Wilson, attorney for Appellant, having affirmed, states as follows: 1. That his method of filing one (1) original Brief, eight (8) copies thereof, with the Clerk of the Court of Appeal, State of Indiana, was by United States Mail, certified, return receipt requested. Said original and copies were placed for shipment to the Clerk of the Court of Appeals on June 28, 1999. 2. That a copy of the Appellant's Brief was served upon Anne Marie Galligan, 501 E. Court Avenue, 4th Floor, City-County Building, Jeffersonville, IN 47130, attorney for Appellee, City of Jeffersonville, and Michael A. Gillenwater, 411 Watt Street, Jeffersonville, IN 47130, on June 25, 1999. 3. Further, Affiant sayeth not. I AFFIRM, under the pains and penalties for perjury, that the foregoing representations are true to the best of my knowledge and belief. MATTOX & MATTOX 420 Elsby Building P.O. Box 1203 New Albany, IN 47151-1203 (812) 944-8005 - Phone (812) 944-2255 - Fax
By:________________________________ Derrick H. Wilson Atty. #16243-22
Attorney for Appellant
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