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04/11/88 LONNIE MISHLER v. COUNTY ELKHART

Filed.: April 11, 1988.

LONNIE MISHLER, ET AL. APPELLANTS (PLAINTIFFS BELOW),
v.
THE COUNTY OF ELKHART, ET AL. APPELLEES (DEFENDANTS BELOW)



APPEAL FROM THE MARSHALL COUNTY CIRCUIT COURT, The Honorable Michael D. Cook, Judge, Cause No. CTC 84-201

Staton, J., Buchanan, J., Concurs. Garrard, P.j., Concurs With Opinion.

Author: Staton

STATON, J.

Lonnie Mishler and other landowners (collectively referred to as Landowners) appeal from a summary judgment denying them a collateral attack on a judgment ordering the Elkhart Board of County Commissioners (Commissioners) to rezone property owned by Dallas Woodward, Jr. This appeal raises four issues which we have consolidated and restated as:

1) Whether the trial court erroneously entered summary judgment prohibiting Landowners' collateral attack on the LaGrange Circuit Court's declaratory judgment and injunction.

2) Whether the trial court abused its discretion in denying Landowners' Motion to File Amended Complaint.

Reversed and remanded.

Woodward owns property that was zoned for residential purposes. Landowners own property contiguous to Woodward's property, or within 300 feet of Woodward's property, or so near that their property will be adversely affected if Woodward's property is rezoned for commercial purposes. In 1976 and 1977, Woodward applied to the Commissioners for rezoning for commercial purposes. The Elkhart County Plan Commission recommended rezoning but the Commissioners rejected Woodward's application. In 1978, Woodward filed a complaint for declaratory judgment, damages, and all other proper relief, alleging an unconstitutional taking of his property by the Commissioners.

Relevant portions of the LaGrange Circuit Court's Findings of Fact and Conclusions of Law are as follows:

4. That hearings were held on said applications on the 13th day of May, 1976, the 9th day of September, 1976, the 11th day of November, 1976, the 10th day of February, 1977, the 14th day of April, 1977, the 12th day of May, 1977, the 6th day of June, 1977, the 14th day of July, 1977, and the 8th day of September, 1977.

5. That all appropriate notices were given for each of the said meetings pursuant to the laws and statutes of the State of Indiana.

6. That at said meetings, the Plaintiff [Woodward] presented numerous items of evidence relative to the pending applications. Further, a large group of citizens of Elkhart County [Landowners, among others] presented numerous remonstrances as well as testimony, all of which is represented in the Minutes of the meetings and the tape recordings thereof, H. I.

11. That the Plaintiff submitted substantial evidence regarding the commercial and industrial use of the surrounding real estate as well as real estate in the immediate area of the Plaintiff's real estate. Said evidence was consistent with the view by Judge herein.

12. That the remonstrators submitted oral testimony from resident property owners regarding residential uses in the area as well as their feelings of the adverse impact of the proposed rezoning and development on the subject real estate.

13. That all of the evidence presented by the Plaintiff, Mr. Woodward, demonstrated conclusively that the highest and best use for said property is a commercial zoning similar to that proposed by the ordinance submitted by the Elkhart County Planning Staff to the Elkhart County Commissioners.

23. That there was no appropriate evidence upon which the Defendant Elkhart County Commissioners could base their decision to reject the proposed amendment to the Elkhart County Zoning Ordinance.

24. That in recommending for denial the ordinance which had been recommended to them for approval by the Elkhart County Planning Commission, the Elkhart County Commissioners disregarded all of the applicable laws governing changes in the zoning ordinance and specifically violated Indiana Code 18-7-5-60 which requires that in rezoning the Elkhart County Commissioners shall consider existing conditions, character of the buildings in each district, the most desirable use for which the land in each district may be adapted and the conservation of property values.

25. That the Elkhart County Commissioners' decision was based on a poll of sentiment of the neighborhood and ...


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