Town of Ellettsville, Indiana Plan Commission and Richland Convenience Store Partners, LLC, Appellants-Respondents,
Joseph V. DeSpirito, Appellee-Petitioner
from the Monroe Circuit Court Trial Court Cause No.
53C01-1509-PL-1714 The Honorable E. Michael Hoff, Judge
Attorney for Appellant Town of Ellettsville, Indiana plan
commission Darla S. Brown Sturgeon & Brown, P.C.
Attorneys for Appellant Richland Convenience Store Partners,
LLC Andrew P. Sheff Sheff Law Office Indianapolis, Indiana
Carina M. de la Torre The de la Torre Law Office LLC
Attorneys for Appellee Michael Rabinowitch Maureen E. Ward
Wooden McLaughlin, LLP Indianapolis, Indiana
Richland Convenience Store Partners, LLC ("RCSP"),
and Joseph V. DeSpirito own adjoining lots in an Ellettsville
subdivision. RCSP filed a petition with the Town of
Ellettsville Plan Commission to relocate a utility easement
on RCSP's property, which contains a private sewer line
that serves DeSpirito's optometry practice, and amend the
subdivision plat accordingly. RCSP proposed to replace and
relocate the sewer line at its own expense. The Plan
Commission approved RCSP's petition over DeSpirito's
objection. DeSpirito filed a petition for judicial review of
the Plan Commission's decision. DeSpirito, RCSP, and the
Plan Commission filed motions for summary judgment. The trial
court granted DeSpirito's motion and denied the other
motions, concluding that the Plan Commission erred in
approving RCSP's petition because DeSpirito had not
consented to the relocation of the easement.
The Plan Commission and RCSP now appeal, arguing that the
trial court's conclusion is erroneous. We agree and
therefore reverse and remand with instructions to enter
summary judgment for the Plan Commission and RCSP.
and Procedural History
The relevant facts are undisputed. Swifty Oil
("Swifty") once owned the land now owned by RCSP
and DeSpirito. In 1996, Swifty submitted a plat for the
Hukill Subdivision, which was approved by the Monroe County
Plan Commission and recorded that same year. The subdivision
has two adjoining lots - Lot 1 to the west and Lot 2 to the
east - that are bordered on the north by State Road 46. The
plat states, "There are utility easements, drainage
easements and building setback lines as shown on the plat,
upon which no structure may be erected or maintained."
Appellants' App. Vol. 2 at 127. The plat shows the
approximate location of what is labeled as a
fifteen-foot-wide utility easement running east-west across
the center of Lot 1. The plat also shows a building and gas
pumps north of the utility easement and no structures south
of the easement; this gas station was owned by Swifty and
ceased operating at some point. The plat contains a metes and
bounds description of the property's boundaries but does
not contain a metes and bounds description of the utility
easement. Finally, the plat shows what is labeled as an
ingress/egress easement in the northeast corner of Lot 1
adjoining State Road 46 and Lot 2, which does not have direct
access to State Road 46.
In June 1996, Swifty conveyed Lot 2 to Marlin Hukill by
warranty deed, which granted Hukill and his successors the
right to use the ingress/egress easement on Lot 1 to access
Lot 2. In August 1996, Swifty granted Hukill and his
successors a second ingress/egress easement on Lot 1, to be
used only if the other ingress/egress easement "is cut
off from access to State Road 46." Appellants' App.
Vol. 3 at 38. The grant contains a metes and bounds
description of the second easement.
In 2011, DeSpirito obtained Lot 2 from Bayview Loan Servicing
by warranty deed, which contains a metes and bounds
description of Lot 2 and of the second ingress/egress
easement mentioned above.
In 2014, RCSP obtained Lot 1 from Swifty by warranty deed,
subject to "Covenants, Conditions, Restrictions, Utility
and Drainage easements and setback lines and any amendments
thereto as disclosed on the recorded plat of
subdivision." Appellants' App. Vol. 2 at 69.
At some point, the Town of Ellettsville annexed Lot 1. In
June 2015, RCSP filed a petition with the Plan Commission to
relocate the utility easement on Lot 1 and amend the
subdivision plat accordingly. In September 2015, after a
hearing, the Plan Commission issued a decision that reads in
relevant part as follows:
8. [Lot 1] was recently annexed, and is officially within the
jurisdiction of the Town of Ellettsville. The utility
easement contains approximately fifteen (15) feet of
Smithville [Telephone] cable and a private utility (sewer)
line. The utility easement which runs east-west through the
center of the property is believed to have been established
in order to provide sewer service to Lot 2.
9. The Petitioners are proposing to relocate the easement
between 15 and 20 feet to the south. The Petitioners are also
proposing to replace the private line with a new line, and
have stated they will absorb the cost of the line
replacement. The relocation of the easement would allow any
new construction to be built deeper in the lot than would
currently be permitted. The replacement of the private sewer
line would cause only minimal disruption to Lot 2, but would
allow for sewer usage indefinitely.
10. The Petitioners are planning to redevelop the site,
formerly a Swifty station, and the current utility easement
significantly restricts the buildable area of the lot.
5. The Board accepts as fact the following:
a. The replacement of the private sewer line would cause only
minimal disruption to Lot 2, but would allow for sewer usage
b. Petitioners have stated that they will absorb the cost of
the line replacement.
c. The purpose of the proposed plat amendment is to increase
the buildable area of the lot.
d. The current location of the easement dissects the lot into
two smaller pieces and restricts access to some of the
buildable area of the lot.
e. The proposed relocation for the utility easement
represents the best location to allow for future development
of the site and maintain the functionality of the sewer line.
f. There has been no evidence presented which demonstrates
that there would be any detrimental effects to the other
property in the subdivision.
g. No provision in the Town Code prohibits moving utility
h. The proposed plat amendment satisfies the Town of
Ellettsville's subdivision control ordinance.
6. Those [sic] following individuals presented testimony in
opposition to the plat amendment or testified as to concerns
regarding the proposed new development: Dr. DeSpirito, Rusty
Turner, and Susan Chen. Rusty Turner and Susan Chen had
concerns about the additional traffic that might be generated
and the safety of individuals driving in and out of the
8. Those individuals who presented testimony in opposition to
the proposed plat amendment presented no evidence that the
proposed amendment fails to meet the Town's zoning
ordinance or that the proposed plat amendment poses
detrimental effects to the other property in the subdivision.
9. The Plan Commission finds that the redevelopment of the
former Swifty station would be in the best interest of the
Town of Ellettsville. The property is currently zoned C-3 and
has two access points from State Road 46, and is positioned
for a wide variety of commercial development options.
Based on the above findings, the Plan Commission concludes
and finds that the Petitioners' application meets all of
the requirements as set forth by the Town of Ellettsville
Zoning Ordinance, and the proposed plant [sic] amendment is
The Planning Director's staff report dated August 12,
2015 shall be adopted as part of the Findings of Fact.
Id. at 164-67.
DeSpirito filed a petition for judicial review of the Plan
Commission's decision and also requested declaratory and
injunctive relief. In October 2015, the parties entered into
an agreed preliminary injunction, whereby the Plan Commission
and RCSP agreed not to take any action on the Plan
Commission's decision until further order of the trial
court. The parties later filed motions for summary ...