June 21, 2004

Indiana Decisions - Oral Arguments this Week

The Indiana Supreme Court will be hearing oral arguments this Wednesday, June 23rd, in three cases:

At 9:00 am: Attorney General v. Lake Superior Court. No Summary is available on the Court site. This is the Lake County assessment case. Here are some recent Indiana Law Blog entries: 5/14/04; 5/19/04; 5/28/04

At 10:05 am: Patricia Gribben v. Wal-Mart Stores, Inc. According to the Summary on the Court's site:

The United States District Court for the Southern District of Indiana certified to the Indiana Supreme Court certain questions of Indiana state law pursuant to Appellate Rule 64. The questions concern whether Indiana law recognizes a claim for “spoliation of evidence” as an independent tort. The Supreme Court has accepted the certified questions and assumed jurisdiction over the case.
See this March 29, 2004 Indiana Law Blog entry for more information.

At 10:50 am: Chester Borsuk, et al. v. Town of St. John. According to the Summary on the Court's site:

The Lake Superior Court entered summary judgment to the Town of St. John on property owners’ complaint about the Town’s refusal to rezone a portion of their land. The Court of Appeals reversed and remanded with an instruction to grant the owners’ request to rezone. Borsuk v. Town of St. John, 800 N.E.2d 217 (Ind. Ct. App. 2004), vacated. The Supreme Court has granted a petition to transfer the case, thus vacating the opinion of the Court of Appeals, and has assumed jurisdiction over the appeal.
The 2004 opinion was a denial of rehearing. The intial Court of Appeals decision is dated 12/18/04 and is available here. The Gary Post-Tribune writes today, 6/21/04, on the appeal, in a story headlined "Zoning tiff to top court." Some quotes:

ST. JOHN — A dispute over half a lot in St. John is heading for an Indiana Supreme Court hearing soon. The case could help decide how much discretion municipal governments can exercise in making zoning decisions. * * *

The case involves one lot at a busy highway intersection — the northwest corner of U.S. 41 and 109th Avenue. The east half of the lot is zoned for business and is vacant. The west half of the lot is zoned residential. It has a house facing Ontario Street, a small street parallel to — and a short block west of — U.S. 41.

Chicago area businessman Chester Borsuk owns the lot and wants to sell it to a business developer, but the split zoning prevents that, according to attorney Michael Muenich. Muenich, a former St. John town attorney, said the two-zoned lot is the only one of its kind in St. John. And it’s the only piece of residential zoning in the block of land between U.S. 41 and Ontario Street, from 109th Avenue north.

Borsuk asked the town in September 2000 to rezone the entire lot for business. Nearby residents objected. In November 2000, the Town Council rejected the zoning change. Muenich asked for a court order overturning the decision. He said the town’s decision is “arbitrary and capricious” because the St. John comprehensive plan calls for business zoning along that stretch of U.S. 41.

The Indiana Court of Appeals agreed with that argument last December and said failing to comply with the comprehensive plan would render a comprehensive plan meaningless. Austgen, who became the town attorney in January, asked the appeals court to reconsider its decision. The two justices who issued the December ruling, re-affirmed their decision in February.

Now the town is asking the Supreme Court to overturn the appeals court ruling — which, if it stands, would tell the town to rezone the land. Austgen contends Indiana law gives the Town Council some leeway in making zoning decisions. The Court of Appeals decision could reduce that discretion if it stands.

View the oral arguments online, either in real time or later, here.

Posted by Marcia Oddi at June 21, 2004 09:17 AM