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02/17/88 ROBERT SIMON AND RUSSELL KRUSE v. CITY

Filed: February 17, 1988.

ROBERT SIMON AND RUSSELL KRUSE, APPELLANTS (PLAINTIFFS BELOW),
v.
CITY OF AUBURN, INDIANA, BOARD OF ZONING APPEALS; RUSSELL TAGUE, MEMBER, DONALD AIKEN, MEMBER, RUTH ANN BUTTERMORE, MEMBER, DOUGLAS J. ATZ, BOARD ATTORNEY: AND CITY OF AUBURN, INDIANA, AND CEDAR GLEN JOINT VENTURE, APPELLEES (DEFENDANTS BELOW).



Appeal from Dekalb Circuit Court, The Honorable Harold D. Stump, Cause No. C-85-23

Staton, J., Shields, P.j., Hoffman, J., Concur.

Author: Staton

STATON, J.

Plaintiffs Russell Kruse and Robert Simon raise the following issues on appeal:

1. Whether the Indiana Open Door Law[Footnote 1] precludes a public agency from seeking legal advice from its attorney in private about matters which are not litigation-related.

2. Whether, under IC 36-1-5-4[Footnote 2] a city's general zoning ordinance is legally valid when it purports to incorporate by reference a zoning map but no zoning map is included in the ordinance and no zoning map is on file in the city clerk-treasurer's office.

Reversed in part, and affirmed in part.

I.

Open Door Law

The Building Commissioner of the City of Auburn issued a building permit to James Witmer and Martha Conrad, partners in Cedar Glen Joint Venture, to construct two condominiums in the Auburn area. Plaintiffs, both of whom live near the site in question, appealed the action to the Auburn Board of Zoning Appeals.

A public hearing was held on January 15, 1985. At the Conclusion of the plaintiffs' argument, the Board voted to meet again in public session at 7:00 p.m. on January 17, 1985, to render a decision. On January 17, 1985, just prior to the second public session and until approximately 7:15 p.m., the Board met privately with its attorney (the assistant city attorney) in a room one floor beneath the public meeting room. Board members testified that during this private session they discussed the legal validity of the project with their attorney. The Board then proceeded to the public session where it unanimously approved the plan without Discussion.

The plaintiffs contend that this private session was held in violation of the Open Door Law since no notice was given (IC 5-14-1.5-5); no minutes were taken (IC 5-14-1.5-4); and no member of the public was admitted (IC 5-14-1.5-3) despite the fact it did not constitute an executive session authorized under IC 5-14-1.5-6. Thus, they seek a permanent injunction against the Board barring it from committing such violations in the future.[Footnote 3]

The defendants contend that the Open Door Law does not apply here because the private session did not constitute a "meeting" under the statute.

After a trial without a jury, the trial Judge agreed with the defendants and entered the following judgment and opinion:

INDIANA OPEN DOOR LAW VIOLATION HEARING

In the matter of that portion of Plaintiffs' allegations against the defendants, the Board of Zoning Appeals of the City of Auburn and the City of Auburn, of a violation of the Indiana Open Door Law by said Board of Zoning Appeals of the City of Auburn on January 17, 1985, the Court having heard the evidence, the arguments of counsel and having examined all briefs and memoranda submitted by all parties now finds for the Defendant, the Board of Zoning Appeals of the City of Auburn, and against the Plaintiffs; that there was no violation of said Indiana Open Door Law of the State of Indiana by said Board of Zoning Appeals of the City of Auburn on January 17, 1985; that all official deliberations and actions of said Board of Zoning Appeals on January 17, 1985 were in full and complete complaince [sic] with Indiana Code 5-14-1.5, Scetions [sic] 1 through 7, being the Indiana Open Door Law; that the prevailing party to such issue, being the Board of Zoning Appeals of the City of Auburn, is not such as [sic] entity as is entitled to an award of attorney fees, court costs or other reasonable expenses of litigation under I.C. 5-14-1.5-7(c) of the Indiana Open Door Law.

MEMORANDUM OPINION

Although the issue involving the alleged violation of the Indiana Open Door Law by the Board of Zoning Appeals of the City of Auburn is a review of actions by an administrative agency, it is a collateral attack upon actions of such agency and not a direct review of administrative actions. Accordingly, the Court renders the following Memorandum Opinion in lieu of Special Findings of Fact.

Upon issues of Plaintiffs' claim against the Board of Zoning Appeals of the City of Auburn of a violation of the Indiana Open Door Law being I.C. 5-14-1.5, Sections 1 through 7, by the Board of Zoning Appeals of the City of Auburn on January 17, 1985, the Court renders the following Memorandum Opinion:

That on January 17, 1985, the Board of Zoning Appeals of the City of Auburn was a public agency and governing body conducting a meeting to deliberate and take final official action upon public business delegated to said Board of Zoning Appeals; that the meeting of said Board of Zoning Appeals in their third floor meeting room of the City Hall of the City of Auburn was convened on January 17, 1985 for the purpose of taking official final action upon public business by a majority of said Board of Zoning Appeals, being an official ruling on the appeal by the Plaintiffs of the issuance of a building permit by the Building Commissioner of the City of Auburn to the Defendant, Cedar Glen Joint Venture, and on the petition by the Plaintiffs to stay all construction by said Defendant, Cedar Glen Joint Venture under said building permit; that said meeting of the Board of Zoning Appeals on January 17, 1985 was a continuance of a meeting on January 15, 1985 of said Board of Zoning Appeals for the hearing of such issues; that siad [sic] meeting on January 17, 1985 was to convene at 7:00 o'clock P.M. on said date; that the meeting room of said Board of Zoning Appeals is located on the third floor of the Auburn City Hall Building, which room is accessible only by stairs; that, it was a relatively common practice for members of the Board of Zoning Appeals to congregate on the second floor of the Auburn City Hall in the hallway, the office of the City Engineer, the office of the City Building Commissioner or the Mayor's office to check the agenda for the scheduled meetings of said Board of Zoning Appeals before proceeding to the meeting room on the third floor; that, shortly before the scheduled meeting on January 17, 1985, members of the Board of Zoning Appeals were congregating in the second floor hallway on their way to the meeting, and certain of the members of the Board of Zoning Appeals wished to confer with Douglas Atz, Assistant City Attorney for the City of Auburn and Attorney for the Board of Zoning Appeals, on the legal aspects of matters that had occurred at the lengthy meeting of said Board of Zoning Appeals on January 15, 1985; that on January 17, 1985, the members of the Board of Zoning Appeals who had assembled in the hallway of the second floor of the City Hall were invited by the Secretary to the Mayor of the City of Auburn to have seats in her office; that members of said Board of Zoning Appeals accepted such invitation and sat in said secretary's office and there asked legal advice, explanation and interpretation from Douglas Atz, Attorney for the Zoning Appeal, as to some of the matters that had occurred at the meeting on January 15, 1985, which legal advice, explanations and interpretations were given by said Attorney at that time; that no deliverations [sic] or actions, other than to seed [sic] such legal advice on matters that had occurred at the January 15, 1985 meeting from the Attorney for the Zoning Appeals, took place on the second floor or in the office of the Mayor's secretary during the few minutes certain members of the Board of Zoning Appeals members spent on their way to the meeting on the third floor; that said gathering of some Board of Zoning Appeal members on the second floor of the City Hall on January 17, 1985 was by chance and not by design; that the members of the Board of Zoning Appeals had not only the right but also the duty to seek advice, explanation and interpretation from the Attorney of said Board prior to the meeting of said Board on January 17, 1985, as to relevant legal matters which had been presented for their consideration at the extension of the meeting of said Board on January 15, 1985, by both the Plaintiffs and by the Defendant, Cedar Glen Joint Venture; that such chance gathering of some members of the Board of Zoning Appeals in the office of the secretary of the Mayor on January 17, 1985 did not demonstrate any intention on the part of the Board of Zoning Appeals or any of the members of said Board to avoid a liberal construction of any of the provisions of I.C. 5-14-1.5, Section 1 through 7, being the Indiana Open Door Law; that all official hearings, deliberations and actions of said Board of Zoning Appeals, in their ruling and decision on the pending appeal by the Plaintiffs of the issuance of the building permit by the Building Commissioner of the City of Auburn to the Defendant, Cedar Glen Joint Venture, and on the petition by the Plaintiffs to stay development and construction by said Defendant, Cedar Glen Joint Venture, under said building permit, took place at the meeting of said Board on January 15, 1985 and January 17, 1985 in the Board meeting room on the third floor of the Auburn City Hall, which meetings were open to the public in full compliance with the letter and the spirit of the Indiana Open Door Law; that the parties seeking to overturn the decision of said Board of Zoning Appeals have not sustainded [sic] their burden of proof to establish that the decision of said Board of Zoning Appeals was made at any meeting of said Board which was in violation of the Indiana Open Door Law; that at said public meeting on January 17, 1985, the Board of Zoning Appeals unanimously accepted the Special Findings prepared by the Attorney for said Board and upheld the granting of the building permit to the Defendant, Cedar Glen Joint Venture, by the Building Commissioner of the City of Auburn, and said Board of Zoning Appeals voted against the efforts of the Plaintiffs to stop construction by the Defendant, Cedar Glen Joint Venture; that the prevailing party to such issue, being the Board of Zoning Appeals of the City of Auburn, is not a proper entity to which the Court may award reasonable attorney fees, court costs and other reasonalbe [sic] expenses of litigation within the purview of section 7(c) of I.C. 5-14-1.5.

Record at 289-93.

Ind. Rules of Procedure, Trial Rule 52 (A) provides:

". . . On appeal of claims tried by the court without a jury or with an advisory jury, at law or in equity, the court on appeal shall not set aside the findings or judgment unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to Judge the credibility of the witnesses.

In addition, our scope of review allows us to determine whether the law was correctly applied to the facts. Laws v. Lee (1984), Ind.App., 471 N.E.2d 1229, 1232, reh. denied.

Here, the Open Door Law was not correctly applied to the facts. The Board's private session with its attorney did, indeed, constitute a "meeting" under the statute.[Footnote 4]

IC 5-14-1.5-2(c) provides, in pertinent part:

"Meeting" means a gathering of a majority of the governing body of a public agency for the purpose of taking official action upon public business. It does not include:

(1) Any social or chance gathering not intended to avoid this chapter. . . .[Footnote 5]

The Board contends, first, that it did not take official action at the private session and, second, that the private session was a chance gathering not intended to avoid the Open Door Law.

However, the Board's first contention is directly refuted by the statute itself. IC 5-14-1.5-2(d) provides that "official action" means to "receive information," among other things. Here, the Board undeniably received information -- albeit in the form of legal advice from its attorney. The Board's argument that there was no group Discussion -- only individual questions addressed to the assistant city attorney by first one board member and then another -- has no weight. Section 2(d) does not require that there be Discussion before "receiving information" becomes "official action."

In addition, the Board's second contention must fail. We recognize that the trial court made a factual finding that the private session was "by chance and not by design." We also recognize the strict standard we must follow in reviewing the trial court's factual findings.

Indeed, upon review of a trial court's discretionary decision to grant or deny an injunction, we consider only the evidence which supports the trial court's decision along with all reasonable inferences. We will reverse only where the evidence leads to a Conclusion directly opposite to the Conclusion of the trial court. We neither reweigh the evidence nor Judge the credibility of witnesses. Common Council of the City of Peru v. Peru Daily Tribune (1982), Ind.App., 440 N.E.2d 726, 728. Only when the trial court's action is clearly against the logic and effect of the circumstances will an abuse of discretion be found on appeal. State ex rel. Stream Pollution Control Bd. v. Town of Wolcott (1982), Ind.App., 433 N.E.2d 62, 65.

Here, the trial court's determination that the private session was a chance gathering is unsound. There was much evidence -- including testimony by the Board members themselves -- that the Board regularly met informally and in private with no member of the public present before each public meeting. Because such sessions constitute "official action" when board members seek legal advice from their attorney and because board members would be likely to continue engaging in such sessions given the trial court's opinion ("[T]he Board . . . had not only the right but also the duty" to seek legal advice in this manner, Record at 292), we must disagree with the court's determination that the private session was a chance gathering rather than a meeting.

Further, the trial court's Conclusion that the Board did not intend to avoid the Open Door Law is error as a matter of law. In Board of County Commr's of St. Joseph County v. Tinkham (1986), Ind.App., 491 N.E.2d 578, trans. denied, the trial court had awarded attorney's fees to Tinkham after finding a violation of the Open Door Law by the Board of County Commissioners. IC 5-14-1.5-7(f) provides that a party may recover attorney's fees and costs if the trial court finds that the government entity's actions were knowing and intentional.

On appeal, the Board argued that because Board members thought they were obeying the law, there was no evidence that its violation of the Open Door Law was knowing and intentional.

Judge Garrard stated:

When the law speaks of intent or knowledge it usually means the intent to do the prohibited act, or the knowledge that one is doing so. It does not require knowledge that the act is in violation of the law or the intent to violate a statutory provision. See, e.g., IC 35-41-2-2. Since the Board does not argue that it ...


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