JOSEPH D. BARNETTE, JR., and CHARLENE BARNETTE, Appellants-Intervenors/Cross-Appellees,
US ARCHITECTS, LLP, ALBERT D. BOWEN, and JULIE A. BOWEN, Appellees-Plaintiffs/Cross-Appellants and CITY OF CARMEL DEPARTMENT OF COMMUNITY SERVICES, DIVISION OF BUILDING AND CODE SERVICES and THE CARMEL BOARD OF ZONING APPEALS, Defendants,
As Corrected September 17, 2014.
APPEAL FROM THE HAMILTON SUPERIOR COURT. The Honorable Steven R. Nation, Judge. Cause No. 29D01-1108-PL-8656.
ATTORNEYS FOR APPELLANTS: ZEFF A. WEISS, BRIAN J. PAUL, EILEEN P. MOORE, Ice Miller LLP, Indianapolis, Indiana.
ATTORNEY FOR APPELLEE U.S. ARCHITECTS, LLP: EDWARD F. HARNEY, JR., Hume Smith Geddes Green & Simmons, LLP, Indianapolis, Indiana.
ATTORNEYS FOR APPELLEES ALBERT D. BOWEN and JULIE A. BOWEN: JULIA BLACKWELL GELINAS, MAGGIE L. SMITH, BRIAN M. FALCON, Frost Brown Todd LLC, Indianapolis, Indiana.
CRONE, Judge. BAKER, J., and NAJAM, J., concur.
Carmel residents Albert D. Bowen and Julie A. Bowen hired U.S. Architects to design what the Carmel Zoning Ordinance (" the Ordinance" ) categorizes as an accessory building. The Bowens submitted the design plans to the Carmel Department of Community Services (" the DCS" ), which issued a building permit and a certificate of occupancy. The Bowens' neighbors, Joseph D. Barnette, Jr., and Charlene Barnette, complained to the DCS about the height of the Bowens' building. The DCS notified the Bowens that their building violated the height limits of the Ordinance and advised them to apply for a variance with the Carmel/Clay Board of Zoning Appeals (" the BZA" ), which they did. The BZA denied the variance. The Bowens did not appeal the DCS's determination that their building is too tall, nor did they appeal the BZA's denial of a variance. The DCS again notified the Bowens that their building violated the Ordinance, that they had to bring it into compliance, and that the DCS would be withdrawing the certificate of occupancy. The Bowens did not appeal that determination.
Instead, the Bowens and U.S. Architects (collectively " the Plaintiffs" ) filed a complaint for declaratory relief against the DCS and the BZA (collectively " the City" ), seeking an interpretation of the Ordinance and a determination that their building complied with it. The City filed a motion for judgment on the pleadings based on the Bowens' failure to exhaust their administrative remedies and counterclaimed for both an injunction ordering the Bowens to bring their building into compliance with the Ordinance and a civil penalty for a zoning violation. The Barnettes filed a motion to intervene, which the trial court granted, and joined the City's motion for judgment on the pleadings. The Plaintiffs filed a motion for summary judgment.
After a hearing, the trial court issued an order stating that the Bowens' failure to exhaust their administrative remedies would have been fatal to their claims but for the fact that the DCS had violated their due process rights and that DCS should be estopped from revoking the certificate of occupancy. The trial court also ruled that U.S. Architects did not have standing to bring a declaratory judgment action because it had not suffered an actual injury and could not request guidance for designing future buildings in Carmel. The trial court denied the City's motion for judgment on the pleadings; granted the
Plaintiffs' summary judgment motion as to the Bowens and denied it as to U.S. Architects; and ordered the DCS to reissue the certificate of occupancy or provide just compensation to the Bowens. The trial court issued a second order denying the City's counterclaims and entering final judgment in favor of the Bowens. The Barnettes filed a notice of appeal, but the City did not. U.S. Architects cross-appealed the trial court's standing determination.
On appeal, the Plaintiffs contend that the appeal is moot because the Barnettes cannot enforce the Ordinance on the City's behalf. We conclude that the appeal is not moot because a party of record in the trial court is a party on appeal, and we may grant appropriate relief to any party. Also, as intervenors and parties to the judgment, the Barnettes may appeal the trial court's judgment to the extent that it is adverse to the interests that made intervention possible in the first place.
The Barnettes contend that the declaratory judgment action should be dismissed for lack of subject matter jurisdiction because the Bowens failed to exhaust their administrative remedies. We agree. The DCS is not estopped from enforcing the Ordinance because the relevant facts were equally known by or accessible to the Bowens and the City. And because the Bowens failed to exhaust their administrative remedies, which would have afforded them due process, they cannot complain about a due process violation. Therefore, we reverse and remand with instructions to dismiss the Plaintiffs' declaratory judgment complaint as to the Bowens and for further proceedings consistent with this opinion, such as reconsideration of the City's counterclaims.
Finally, U.S. Architects contends that the trial court erred in determining that it lacks standing to bring a declaratory judgment action. Because any injury suffered by U.S. Architects would be derivative of that suffered by the Bowens, and because it may not seek an advisory opinion for guidance in designing future buildings, we affirm the trial court on this issue and remand with instructions to dismiss the Plaintiffs' declaratory judgment complaint as to U.S. Architects.
In sum, we affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.
Facts and Procedural History
The relevant facts are undisputed. In 2010, the Bowens, who live next door to the Barnettes in Carmel, hired U.S. Architects to design what the Ordinance categorizes as an accessory building. The Bowens submitted the design plans to the DCS, which issued a building permit in February 2010. In October 2010, after the Bowens' building was constructed, the DCS issued a certificate of occupancy that contains the following language: " THE BUILDING OFFICIAL IS PERMITTED TO SUSPEND OR REVOKE THIS CERTIFICATE OF OCCUPANY BASED ON ANY OF THE FOLLOWING: 1. WHEN THE CERTIFICATE HAS BEEN ISSUED IN ERROR; 2. WHEN THE INCORRECT INFORMATION IS SUPPLIED; 3. WHEN THE BUILDING IS IN VIOLATION OF THE CODE." Appellants' App. at 89.
The Barnettes complained to the DCS about the height of the Bowens' building, which has a gable roof and no walls adjoining the street. Section 3.07 of the Ordinance ...