FOR PUBLICATION
ATTORNEY FOR APPELLANT:
ATTORNEY FOR APPELLEES:
LESLIE C. SHIVELY
JERRY D. STILWELL
Shively & Associates
Evansville, Indiana
Bamberger Foreman Oswald and Hahn, LLP
Princeton, Indiana
IN THE
COURT OF APPEALS OF INDIANA
EVANSVILLE OUTDOOR
ADVERTISING, INC.,
Appellant-Plaintiff,
vs.
PRINCETON (CITY) PLAN COMMISSION,
AND THE PRINCETON CITY COUNCIL,
Appellees-Defendants.
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No. 26A05-0506-CV-306
APPEAL FROM THE GIBSON CIRCUIT COURT
The Honorable Robert R. Aylsworth, Judge
Cause No. 26C01-0306-PL-13
June 19, 2006
OPINION ON REHEARING - FOR PUBLICATION
BARNES, Judge
The Princeton Plan Commission (“the Commission”) petitions for rehearing
following our memorandum decision in Evansville Outdoor Advertising, Inc. v.
Princeton Plan Commission, et al., 26A05-0506-CV-306 (Ind. Ct. App. March 10, 2006).
The Commission argues and EOA concurs that Section 6.29 of the Princeton Code (“the
Code”) does not apply to this case, and therefore the trial court had subject matter
jurisdiction over a complaint for declaratory judgment filed by Evansville Outdoor
Advertising (“EOA”).
Based on the specific language of our 2002 memorandum
decision concerning the same proposed billboard, we grant the Commission’s petition for
rehearing, vacate our original opinion, and affirm the trial court’s judgment in favor of
the Commission.
To summarize, EOA sought to construct a billboard in Princeton. On April 8,
1999, after receiving approval from the Indiana Department of Transportation
(“INDOT”), EOA filed an application for a conditional use permit for the billboard. The
application was eventually referred to the Princeton Board of Zoning Appeals (“the
BZA”) and was denied. EOA filed a complaint for declaratory judgment, and the trial
court ordered the Commission to issue a conditional use permit based on the specification
of EOA’s application to INDOT.
That order was appealed, and we first determined whether a complaint for
declaratory judgment was the proper avenue for relief. See Building Comm’r of City of
Princeton, et al., v. Evansville Outdoor Advertising, 26A01-0202-CV-61 (Ind. Ct. App.
Aug 27, 2002). We concluded that EOA properly filed a writ for declaratory judgment
instead of appealing the BZA’s denial of the conditional use permit. We necessarily
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addressed whether an improperly promulgated 1991 ordinance or an identical ordinance
properly promulgated on May 24, 1999, governed. In addressing the applicability of the
two ordinances, we stated:
Here it is uncontroverted that 1991-3, the ordinance upon
which the Commissioner relied in instructing [EOA] to
obtain a conditional use permit instead of building permit,
was determined to be improperly promulgated after the
Commissioner gave the advice to [EOA] but prior to the
BZA’s decision to deny [EOA’s] conditional use application.
Princeton adopted 1999-8 to remedy the defect. 1999-8
iteself indicates that it is effective after passage, approval,
and publication. Consequently, the trial court was correct in
concluding that the newly adopted ordinance did not apply to
[EOA’s] application.
Therefore, under the specific facts of this case, it was
reasonable for the Commission to rely upon the validity of
1991-3 when informing Advertiser regarding what permit to
pursue.
Id. slip op. at 7-8.
We also concluded that the trial court improperly required the issuance of a
conditional use permit based on the specifications set forth in EOA’s application to
INDOT. In determining the proper remedy we observed:
While [EOA] is correct that § 5.37 of Princeton’s zoning
ordinance, provides that all freestanding billboards shall be
fifteen feet or more from any public right-of-way, see
Appellee’s App. 1, we have concluded that neither billboard
ordinances [sic] applies to this specific fact situation.
Therefore, the issue of the appropriate setback remains
unresolved. Under the general ordinances regulating business
districts, Princeton’s Code §6.19(A)(5), provides that
setbacks shall be determined by the Plan Commission and
should be individually checked in order to determine the most
appropriate setback.
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Id. slip op. at 13 (emphases added). We ordered EOA “to submit a building permit
application to Commissioner, which application Commissioner shall accept and forward
to the Plan Commission for a determination of the appropriate setback for that location.”
Id.
To complicate matters, on July 1, 2002, while the first appeal was pending,
Section 6.29 of the Code, which specifically governs signs and billboards, was adopted.
Also while the appeal was pending, EOA constructed a 682 square foot billboard at a
setback of fifteen feet without permission. After our 2002 decision was handed down,
EOA filed an application for a building permit for the already existing billboard.
On April 16, 2003, the Commission held a hearing to determine the appropriate
setback and eventually decided that the billboard should be set back at least sixty-five
feet. EOA then filed another complaint for declaratory judgment with the trial court,
which the trial court denied.
EOA appealed. On appeal, the parties did not address the applicability of Section
6.29. Nonetheless, based on Section 6.29(F)(3) of the Code, which describes requests for
the issuance of signs not permitted by this section as variances, and Section 11.33, which
empowers the BZA to make the final determination regarding a variance, we sua sponte
held that because the BZA had not made the final setback determination, EOA failed to
exhaust its administrative remedies.
We concluded that this failure to exhaust
administrative remedies deprived the trial court of subject matter jurisdiction.
The
Commission now petitions for rehearing on the basis that according to our 2002 decision,
only Section 6.19(A)(5) of the Code applies in this case.
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Our 2002 decision does not address the applicability of Section 6.29 because this
section was enacted while the appeal was pending. However, we conclude that as the
parties proceeded on remand they were relying on the specific language of our decision in
which we appeared to indicate that neither the 1991 nor the 1999 ordinances would apply
and we referred to 6.19(A)(5). Based on this language, we agree that the parties were
within reason to proceed under 6.19(A)(5), that Section 6.29 does not apply here, that the
trial court had subject matter jurisdiction, and that we should address the merits of EOA’s
appeal.
I. Development Standards
EOA first appears to argue that the Commission was without jurisdiction because
Section 6.19(A)(5) 1 is not a legally enforceable development standard.
Section
6.19(A)(5) provides:
Setbacks shall be determined by the plan commission. Each
site should be individually checked to determine what the
most appropriate setback should be. Landscaping, ease of
access, light and air and costs should all be taken into
account. Adjacent uses should also be considered so as not to
locate a noisy use next to a quiet one or some similar
misfortune.
App. p. 73.
EOA’s argument is based on Indiana Code Section 36-7-4-601, which provides in
part:
1
EOA refers to Section 6.19 generally. However, because this case involves the determination of a
setback, we need not determine whether the other provisions of Section 6.19, which address lot size,
parking requirements, and restrictions for permitted uses, are sufficiently specific. We will only address
Section 6.19(A)(5), which specifically addresses setbacks.
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(c) When it adopts a zoning ordinance, the legislative body
shall act for the purposes of:
(1) securing adequate light, air, convenience of
access, and safety from fire, flood, and other danger;
(2)
lessening or avoiding congestion in public
ways;
(3) promoting the public health, safety, comfort,
morals, convenience, and general welfare; and
(4)
otherwise accomplishing the purposes of this
chapter.
This statute also provides specific factors that may be regulated by the legislative body in
controlling how property is developed, maintained, and used.
Ind. Code § 36-7-4-
601(d)(2). EOA contends that no standards for the determination of setbacks are set forth
in the Code.
“It is well-settled that zoning ordinances must be precise, definite and certain in
expression so as to enable both the landowner and municipality to act with assurance and
authority regarding local land use decisions.”
T.W. Thom Const., Inc. v. City of
Jeffersonville, 721 N.E.2d 319, 327 (Ind. Ct. App. 1999). “This requirement is dictated
by due process considerations in that the ordinance must provide fair warning as to what
the governing body will consider in making a decision.” Id.
In support of this argument, EOA cites to Metropolitan Board of Zoning Appeals
of Marion County v. Shell Oil Co., 182 Ind. App. 604, 605, 395 N.E.2d 1283, 1284
(1979), in which Shell filed an application for an improvement location permit to erect
two canopies over two gasoline pump islands in the front yard of the property. The
application was denied, and Shell appealed. Id. On appeal, we observed that the relevant
ordinance was without restriction or description of the nature and/or size of canopies
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permitted in the front yards of that zoning classification. Id. at 608, 395 N.E.2d at 1286.
We concluded:
the only definitive requirement of the zoning ordinance, that
is, that canopies may be built in the required front yards of
gasoline service stations, was met. By reason of the adoption
of this standard without a further guide in the Ordinance
relating to size limitations, the Department and the Board
were without the discretionary power to withhold a permit on
the basis of size.
Id. at 609, 395 N.E.2d at 1286.
Unlike in Shell, Section 6.19(A)(5) provides the Commission with certain specific
considerations when determining setbacks. These factors include landscaping, ease of
access, light, air, costs, and adjacent uses. These factors also provide fair warning as to
what the Commission will consider in making its decision. See T.W. Thom Const., 721
N.E.2d at 327. Without more, EOA has not established Section 6.19(A)(5) lacked a
legally enforceable development standard so as to deprive the Commission of jurisdiction
to determine an appropriate setback.
II. Substantial Evidence
EOA next argues that the Commission’s decision was not supported by substantial
evidence.
“A court reviewing a decision of an administrative agency is limited to
determining whether the agency’s decision was based upon substantial evidence.”
Evansville Outdoor Advertising, Inc. v. Board of Zoning Appeals of Evansville and
Vanderburgh County, 757 N.E.2d 151, 158 (Ind. Ct. App. 2001), trans. denied (2002).
“Courts that review administrative determinations, at both the trial and appellate level, are
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prohibited from reweighing the evidence or judging the credibility of witnesses and must
accept the facts as found by the administrative body.” Id.
At the Commission hearing, Mel Justak, who owned a neighboring McDonald’s,
testified that the location of EOA’s billboard impaired his sign’s visibility and readability
and that “his directional billboards aren’t as effective now.” App. p. 147. He testified in
great detail that EOA’s billboard reduced the visibility of his sign from all directions and
that it had reduced the effectiveness of his advertising. This landowner also testified that
moving the billboard back by one-half of its width would restore the view to his signage
and that moving it back by a total width of the advertising panels would help minimize
visual congestion in the area and enhance the readability of all the signage in the area.
EOA contends that this testimony was not supported by exhibits or photographs
and that the photographs it offered to the Commission showed that the billboard did not
interfere with the neighboring landowner’s signage. However, Justak offered specific
testimony regarding the distances at which EOA’s billboard interfered with his sign that
had been there since 1975. We will not reweigh this evidence nor require that Justak’s
testimonial evidence be supported by photographic evidence. EOA has not established
that the Commission’s decision was not supported by substantial evidence.
Further, to the extent that EOA contends that the Commission’s decision was
arbitrary and capricious because it is not related to the public health, safety, morals, or the
general welfare of the community, we disagree. “A rule or decision will be found to be
arbitrary and capricious ‘only where it is willful and unreasonable, without consideration
and in disregard of the facts or circumstances in the case, or without some basis which
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would lead a reasonable and honest person to the same conclusion.’” Evansville Outdoor
Advertising, 757 N.E.2d at 161 (citation omitted). Based on the Commission’s “findings
and conclusions,” it is clear that the newly constructed sign blocked the existing
McDonald’s sign. App. p. 160. The Commission’s decision to protect the visibility of an
existing business’s sign lessens or avoids congestion on public ways, a valid purpose
under Indiana Code Section 36-7-4-601(2). EOA simply has not established that the
Commission’s determination of the appropriate setback was unreasonable, without
consideration of the facts, or without some basis that would lead a reasonable person to
the same conclusion.
III. Constitutional Claims
EOA also argues that it was “denied equal protection under the law” and that the
Commission’s decision “constitutes a taking.” 2
Appellant’s Br. pp. 11, 14.
In its
complaint, EOA relied on specific provisions of the Indiana Constitution. On appeal, the
basis for EOA’s claims appears to be the United States Constitution. Moreover, EOA has
failed to develop these arguments with appropriate legal analysis and citation to the
appendix.
Indiana Appellate Rule 46(A)(8) requires arguments to “contain the
contentions of the appellate on the issues presented, supported by cogent reasoning. Each
contention must be supported by citations to the authorities, statutes, and the Appendix . .
. .” It is well settled that we will not consider an assertion on appeal that does not include
2
In its reply brief, EOA argues, “The issue as to whether a taking has occurred, however, may be
premature and certainly [EOA] would concede that it would not be entitled to pursue a takings claim
should the determination of the setback be reversed by this court.” Appellant’s Reply Br. p. 6.
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cogent argument supported by authority and references to the record as required by the
rules. Shepherd v. Truex, 819 N.E.2d 457, 463 (Ind. Ct. App. 2004). “If we were to
address such arguments, we would be forced to abdicate our role as an impartial tribunal
and would instead become an advocate for one of the parties. This, clearly, we cannot
do.” Id. The conclusory arguments in EOA’s appellate and reply briefs are insufficient
to support adequate appellate review and are waived.
Because of our references to Section 6.19 in our 2002 decision, we grant the
Commission’s petition for rehearing and vacate our original petition. As to the merits of
EOA’s claims, EOA has not established that the trial court improperly denied its
complaint for declaratory action. Thus, we affirm the trial court’s decision.
SHARPNACK, J., and RILEY, J., concur.
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