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Monday, August 31, 2009

Ind. Decisions - Court of Appeals issues 2 today (and 8 NFP)

For publication opinions today (2):

In City of New Haven Board of Zoning Appeals v. Flying J, Inc. , Judge Mathias writes:

The heart of the issue currently before us is whether the amended zoning ordinance is applicable to Flying J's planned travel plaza. If so, the planned travel plaza is not in compliance with the amended ordinance, and the BZA cannot be said to have acted improperly in rejecting Flying J's development plan; if not, the BZA did act improperly, and the trial court correctly reversed the BZA's decision.

As the trial court correctly observed, changes in zoning ordinances are subject to any vested property right. Metro. Dev. Comm'n of Marion County v. Pinnacle Media, LLC, 836 N.E.2d 422, 424 (Ind. 2006) (“Pinnacle I”). Generally, a “nonconforming use” may not be terminated by a new zoning enactment. * * *

Upon appeal, our supreme court affirmed the long-held principle that zoning ordinances are subject to vested rights. Pinnacle I, 836 N.E.2d at 424. But the court rejected a line of cases which held that the mere filing of a building permit was sufficient to establish a vested right. Pinnacle I, 836 N.E.2d at 428 (overruling Knutson v. State ex rel. Seberger, 239 Ind. 656, 160 N.E.2d 200 (1959)). Instead, the court approved of a line of cases which held that land acquisition, demolition, and site preparation were not enough to establish a vested right. [In Pinnacle II the court further explained:] We acknowledge, as perhaps our original opinion should have, that vested rights may well accrue prior to the filing of certain applications. * * *

Here, the BZA argues that, because Flying J had not yet begun construction on its travel plaza, Flying J had no vested right to develop the travel plaza pursuant to the original zoning ordinance. The BZA argues that the amended zoning ordinance is therefore applicable and that Flying J's development plan for the travel plaza clearly exceeds the size limitations of the amended zoning ordinance. Flying J argues that it did have a vested right prior to the amendment of the zoning ordinance, that its planned travel plaza is a nonconforming use, and that the amended zoning ordinance does not apply.

If Pinnacle I were the only case we considered, we might well agree with the BZA that Flying J had no vested right because it had not yet begun construction on the travel plaza. * * *

We read the Pinnacle cases to mean that, while construction definitely does establish a vested right, mere preliminary work, including filing of a building permit, does not. In situations falling between these two extremes, courts must engage in a fact sensitive analysis to determine whether vested rights have accrued prior to application for a building permit or construction. * * *

Since the determination of when such rights vest is a fact-sensitive determination, we necessarily give deference to the trial court's findings. Under the facts and circumstances before us, we cannot say that the trial court erred in concluding that the amendments to the zoning ordinances were subject to Flying J's vested right in the property and that the amended zoning ordinance was not applicable to Flying J's planned travel plaza. Therefore, the trial court also correctly determined that the BZA erred in rejecting Flying J's development plan based on the inapplicable amended zoning ordinance.

In Virginia Meister v. State of Indiana and City of Union City, Indiana, a 14-page, 2-1 opinion, Judge Friedlander writes:
This case comes before us on remand from the United States Supreme Court. In Meister v. State, 864 N.E.2d 1137 (Ind. Ct. App. 2007) this court affirmed the forfeiture of Virginia Meister‘s vehicle, which was seized after her son, John Wymer, was arrested while driving the vehicle for the offense of driving while suspended. A search subsequent to that arrest revealed that Wymer had methamphetamine in the vehicle. After the Indiana Supreme Court denied Meister‘s petition for transfer, she filed a petition for writ of certiorari with the United States Supreme Court. The Court granted that writ on May 4, 2009 and on June 5 remanded the cause to this court with the following instructions: "It is ordered and adjudged on May 4, 2009, by this Court that the judgment of the above court in this cause is vacated with costs, and the cause is remanded to the Court of Appeals of Indiana, First District, for further consideration in light of Arizona v. Gant, 556 U.S. ___[, 129 S.Ct. 1710] (2009)." Pursuant to this directive, we reconsider Meister‘s appeal. * * *

[ILB - For background, see this entry from May 4th.]

[B]ased on the facts known to Officer Wymer at the time of the search, he had probable cause to believe a search of the vehicle Wymer was driving would uncover contraband or evidence of that crime.

The second element that must be present to justify a warrantless search of a vehicle is that the vehicle is readily mobile. * * * In view of the fact that Officer Bradbury had probable cause to search Meister‘s readily mobile vehicle, the warrantless search of the vehicle was justified under the automobile exception. Therefore, there was no violation of the Fourth Amendment.

Finally on this issue, we note that our analysis in the original opinion of Meister‘s challenge under article 1, section 11 of the Indiana Constitution is unaffected by Gant. Therefore, for the reasons stated in our original opinion, our conclusion that the search of Meister‘s vehicle did not violate this provision of the Indiana Constitution remains unchanged.

The second issue presented by Meister challenges the sufficiency of the evidence supporting the trial court‘s forfeiture order. Specifically, she alleges the State failed to prove that she knew or had reason to know that the vehicle was being used in the commission of the offense, as required by I.C. § 34-24-1-4(a). * * * We discern no need to do more here than indicate that our views and analysis on this issue, as set out in our original opinion, remain unchanged. We note in this regard that Gant did not address the subjects of forfeiture or the sufficiency of evidence, and therefore nothing in Gant requires reconsideration of this issue.
Judgment affirmed.

KIRSCH, J., concurring.
RILEY, J., dissenting with separate opinion. [that concludes] Based on the facts before us, it is clear that Wymer was handcuffed and secured prior to the search of his car. He was not within reaching distance of the car‘s interior. An evidentiary basis for the search was also lacking. Wymer was arrested for driving with a suspended license—an offense for which the officers could not expect to find evidence in the vehicle. Because the officers could not reasonably have believed either that Wymer could have accessed his car at the time of the search or that evidence of the offense for which he was arrested might have been found therein, the search in this case, pursuant to Gant‘s directives, was unreasonable.

NFP civil opinions today (6):

Clark L. Bryant v. Harrison County Planning Commission (NFP) - "In his complaint, Bryant seeks declaratory, mandamus, and injunctive relief to force HCPC to enforce the Zoning Ordinance. Bryant alleges that HCPC has failed to enforce the Zoning Ordinance by allowing the construction of the over-sized garages, by improperly issuing improvement location permits and certificates of occupancy, by not requiring plot plans, and by not performing final inspections. Bryant, though, has not asserted that HCPC’s alleged violations of the Zoning Ordinance have caused him to suffer or have placed him in immediate danger of suffering a direct injury. While he alleges that two of the over-sized garages are located in the same subdivision as his home, he does not allege that these garages have or will cause him direct injury. Bryant states that he is bringing this action to protect his investment in his home, but he does not allege that HCPC’s alleged failure to enforce the Zoning Ordinance has caused or will cause a depreciation in the value of his property. Absent some showing that Bryant has suffered or will immediately suffer a direct injury, Bryant does not have general standing to pursue his claim against HCPC. * * *

"Although Bryant does not have general standing, he contends that there are several other bases by which standing may be established. * * *

"As stated above, Bryant has failed to show that he has a stake in the outcome of this case, and we conclude that Bryant does not have standing to pursue an action for mandate."

Bloomington Ford, Inc. v. Robert McArdle (NFP) - "Appellant-Defendant, Bloomington Ford, Inc. (Bloomington Ford), appeals the Worker‟s Compensation Board‟s decision affirming its administrative law judge‟s decision awarding Appellee-Plaintiff, Robert McArdle (McArdle), $6,058 for the amputation of the tip of his middle finger, which occurred while he was employed by Bloomington Ford. We affirm and remand.

"Bloomington Ford raises one issue for review, which we restate as: Whether McArdle‟s injury arose out of and in the course of his employment with Bloomington Ford."

In C.M.M. v. D.D.F. (NFP), an 8-page opinion, Judge Bradford writes:

Appellant-Respondent C.M.M. (“Father”) appeals the trial court’s order that he pay a portion of his children’s college expenses. We affirm.
Again, as in this Aug. 14th entry and this Aug. 21st entry, the ILB points out that there is apparently a new, unannounced court-wide policy that essentially vests discretion in the writing judge as to whether or not to publish the names of the parties in certain cases. The parameters of the discretion, what criteria apply, etc., do not appear to be available to the public, but the ILB counts at least a half-dozen opinions recently where the writing judge has obscured the names of the parties.

Term. of Parent-Child Rel. of L.M.; B.M., J.D., and S.W. v. IDCS (NFP)

Term. of Parent-Child Rel. of A.D. and I.M.; J.D. and R.M. v. IDCS (NFP)

Term. of Parent-Child Rel. of M.M.; Q.M. v. IDCS (NFP)

NFP criminal opinions today (2):

John R. Crawford v. State of Indiana (NFP)

Lawrence Auler v. State of Indiana (NFP)

Posted by Marcia Oddi on August 31, 2009 12:17 PM
Posted to Ind. App.Ct. Decisions