APPEAL FROM THE OWEN CIRCUIT COURT The Honorable Teresa D. Harper, Special Judge Cause No. 60C01-0909-PL-567
The opinion of the court was delivered by: Baker, Judge
Today we consider whether the petitioners were aggrieved parties and had standing to challenge the County Commissioners' decision to vacate a portion of a roadway that provided an access to a cemetery where their daughter was buried. We hold that the petitioners did not suffer a special or unique injury above that which the general public sustained. Moreover, the evidence established that there were alternate entrances to the cemetery so the petitioners were not hindered within the meaning of the statute from gaining access to their daughter's grave. Thus, the petitioners were not entitled to challenge the County Commissioners' decision to vacate a portion of the roadway.
Appellants-petitioners Lewis and Laurel Richardson (collectively, the Richardsons), appeal the trial court's judgment that vacated a portion of a roadway, in favor of the Board of Commissioners of Owen County (Commissioners). More particularly, the Richardsons maintain that the trial court erred in determining that they were not aggrieved parties and, therefore, could not appeal the vacation ordinance under Indiana Code section 36-7-3-12(f).
We conclude that because the Richardsons are not abutting landowners to the vacated roadway, the trial court correctly determined that they lacked standing as an aggrieved party to remonstrate against the vacation of the roadway. In other words, the Richardsons have failed to demonstrate that they have sustained an injury that is unique or special to them.
Thus, we affirm the judgment of the trial court.
The Richardsons own burial rights for ten plots in Splinter Ridge Cemetery (Cemetery) in Owen County. Their daughter, Kirsten, is at the Cemetery.
Sometime in 2009, the Richardsons requested that the Cemetery be placed on the list of historic cemeteries. The Cemetery is located along the east side of Splinter Ridge Road (Splinter Ridge), which was, or is, a county road that appeared on the county maps and records for years. The records that the County maintained initially reflected that Splinter Ridge ran from Vandalia or Chapman Road in a southerly direction to a point known as Patricksburg Road.
However, as early as 1937, the road map that was submitted into evidence showed that Splinter Ridge appeared as a solid line, which meant there was a continuously maintained county road from Patricksburg Road to Fish Creek or about one third of its original length. The remainder of Splinter Ridge appeared as a dotted line, meaning that the county roadbed had been abandoned for the rest of the way north to Vandalia.
In 1997 or 1998, Junior Sips had inherited a large portion of the property just north of the Cemetery on both sides of Splinter Ridge. At some point, without the permission of any county authority, Sips installed a gate across Splinter Ridge just north of the property line to the Cemetery.
On May 1, 2009, Sips and Danzer Forest Land, Inc., (Danzer), as owners of all the property adjacent to a portion of Splinter Ridge, filed a petition to permanently vacate the adjacent portion of the road. It is undisputed that Sips and Danzer were the only landowners abutting the portion of the road sought to be vacated. In relevant part, the petition requested
4. [That the] roadway be permanently vacated as the same was in fact abandoned by [the] county approximately 60 plus years ago and has not been maintained by the County during that entire period of time and has not been used by the public as a roadway for the same period of time. In fact said roadway has generally disappeared and is not at all visible in many portions of the area petitioners are requesting be formally vacated.
5. The formal vacation of said section of roadway is in the public and economic interest of Owen County . . . in that it would not interfere with the flow of traffic as it has existed for the past 60 plus years, the clearing of timber, grading and reestablishment of a roadbed would be necessary for the road to actually be used by the public.
7. The formal vacation of the roadway would not change the circumstances of any other landowner aside from the petitioner or negatively impact the traffic flow and pattern of transportation in Owen County from what it has been for the past 60 plus years.
Appellants' App. p. 105-06.
Thereafter, the Richardsons filed a request with the Commissioners, asking for the removal of the gate that Sips had installed, and that overgrown portions of the road be repaired. At the Commissioners' meeting on May 4, 2009, the Richardsons presented argument about the importance of reopening the entire length of Splinter Ridge because of their ownership in the Cemetery plots. The Sips's attorney then addressed the Commissioners regarding the pending ...