City of Charlestown, Indiana, and Charlestown Board of Public Works and Safety, Appellants-Defendants/Cross-Appellees,
Charlestown Pleasant Ridge Neighborhood Association Corporation, Joshua Craven, Tina Barnes, David and Ellen Keith, and Bolder Properties, LLC, Appellees-Plaintiffs/Cross-Appellants.
from the Clark Circuit Court The Honorable Jason M. Mount,
Special Judge Trial Court Cause No. 10C02-1701-CT-10
Attorneys for Appellants Bart A. Karwath Mark J. Crandley
Barnes & Thornburg LLP Indianapolis, Indiana Michael
Allen Gillenwater Gillenwater Law Offices Jeffersonville,
Attorneys for Appellees Jeffrey T. Rowes Institute for
Justice Austin, Texas Jeffrey H. Redfern Institute for
Justice Arlington, Virginia Keith E. Diggs Institute for
Justice Tempe, Arizona Stephen W. Voelker Voelker Law Office
Jeffersonville, Indiana Anthony B. Sanders Institute for
Justice Minneapolis, Minnesota Attorneys for amici curiae
NOW!, Inc. J. David Agnew Lorch Naville Ward LLC New Albany,
Indiana The Goldwater Institute F. Bradford Johnson
Indianapolis, Indiana Matthew R. Miller The Scharf-Norton
Center for Constitutional Litigation at the Goldwater
Institute Phoenix, Arizona F & J Apartments, LLC, Brown
Rental Properties, LLC, Cooley Property Management, LLC,
Gregory Development, LLC, Josh Gregory, Greg Yeager, Kenneth
T. Westmoreland, Jr., Michelle R. Westmoreland, Matthew
Shultz, Lisa Shultz, Dale May, Maria Sanchez, and Manuel
Hernandez J. David Agnew Lorch Naville Ward LLC New Albany,
Indiana George A. Budd, V Schad & Schad, P.C. New Albany,
Charlestown Pleasant Ridge Neighborhood Association
Corporation, Joshua Craven, Tina Barnes, David Keith, Ellen
Keith, and Bolder Properties, LLC (collectively "the
Homeowners"), filed a motion for preliminary injunction
against the City of Charlestown, Indiana, and the Charlestown
Board of Public Works and Safety (collectively "the
City") with respect to the City's practice of
enforcing its Property Maintenance Code ("PMC"). In
support of their motion for a preliminary injunction, the
Homeowners alleged that the City enforced the PMC in a manner
that violated (1) Indiana Code Chapter 36-7-9, also known as
the Indiana Unsafe Building Law ("UBL"), (2) the
PMC itself, (3) the United States Constitution's Equal
Protection Clause, and (4) the Indiana Constitution's
Privileges and Immunities Clause. As to the first claim, the
trial court found that the City is not required to follow
either the UBL or the PMC exclusively. Because the trial
court found that the City is not required to follow the UBL,
the trial court concluded that the Homeowners are unlikely to
succeed on their claim that the City's manner of
enforcing the PMC violates the UBL. However, the trial court
also concluded that the Homeowners are likely to succeed on
their remaining claims. Accordingly, the trial court issued
findings of fact and conclusions thereon ("the Appealed
Order") and a separate order granting the preliminary
The City appeals, arguing that the trial court clearly erred
in concluding that the Homeowners are likely to succeed on
their claims that the City's manner of enforcing the PMC
violates the PMC, the Equal Protection Clause, and the
Privileges and Immunities Clause. The Homeowners
cross-appeal, arguing that the trial court clearly erred in
concluding that they are unlikely to succeed on their claim
that the City's manner of enforcing the PMC violates the
The issue raised in the Homeowners' cross-appeal is
dispositive at this stage of the proceedings. As to that
issue, we conclude that the trial court clearly erred in
finding that the City is not required to follow the UBL.
Specifically, we conclude that because the City has adopted
the UBL, the City is required to act in accordance with its
provisions. That does not mean that the PMC is without legal
force, but rather that the City is precluded from enforcing
the PMC in a manner that is inconsistent with the UBL.
Because the trial court found that the City was not required
to follow the UBL, the trial court did not address how the
UBL impacts the City's enforcement of the PMC. Some of
the provisions in the UBL are permissive, others are
mandatory. Some provisions of the PMC may conflict with the
UBL, some PMC provisions will be compatible with the UBL, and
many PMC provisions will address subject matter not covered
by the UBL. Therefore, we remand for the trial court to
consider how the UBL and the PMC work together in light of
our conclusion that the PMC must work within the confines and
strictures of the UBL, and to reconsider the Homeowners'
claim that the City's enforcement of the PMC violates the
UBL. Further, because the trial court decided the
Homeowners' remaining three claims based on the erroneous
premise that the City was not required to follow the UBL,
those claims, if the Homeowners choose to pursue them, will
need to be reexamined. Accordingly, we reverse the Appealed
Order and the order granting the preliminary injunction and
remand for further proceedings consistent with this opinion.
and Procedural History
The undisputed facts show that Pleasant Ridge is a
neighborhood within the City of Charlestown. Appealed Order at
3 (finding #8). The City believes that Pleasant Ridge needs
redevelopment. Id. at 4 (#13). The Association is a
nonprofit corporation with approximately fifty members, all
of whom are Pleasant Ridge property owners, and the
Association itself owns and rents a duplex in Pleasant Ridge.
Id. at 2 (#1). Joshua Craven, Tina Barnes, David
Keith, and Ellen Keith are Pleasant Ridge residents and
homeowners. Id. (#2-4). Craven is the president of
the Association. Barnes is a member of the Charlestown City
Council ("the City Council"). Bolder Properties
owns four duplexes in Pleasant Ridge. Id. (#5).
In 2001, the City Council passed an ordinance adopting the
UBL pursuant to Indiana Code Section 36-7-9-3. Id.
at 19 (#85). The UBL provides local governments with
procedures to address unsafe buildings and premises but does
not set forth specific building safety standards. The UBL
defines an "unsafe building" in relevant part as
one that is "dangerous to a person or property because
of a violation of a statute or ordinance concerning building
condition or maintenance." Ind. Code § 36-7-9-4. An
"unsafe premises" is an unsafe building and the
property it is located on. Id. The UBL authorizes
local governments to issue orders to property owners
"requiring action relative to any unsafe premises,"
including "repair or rehabilitation of an unsafe
building to bring it into compliance with standards for
building condition or maintenance required for human
habitation, occupancy, or use by a statute, a rule adopted
under IC 4-22-2, or an ordinance." Ind. Code §
36-7-9-5(a)(5). The UBL provides procedural protections for
property owners who receive an order to repair or
rehabilitate an unsafe building, such as requirements as to
the information to be included in an order, a
"sufficient time" of ten to sixty days to make
repairs before a fine may be imposed, a ten-day period to
appeal the order, and limits on the civil penalty for
noncompliance with an order to $2500 and on the accrual of
such a civil penalty to not more than $1000 every ninety
days. Ind. Code §§ 36-7-9-5(b)-(c), -7(a),
In 2008, the City Council enacted the PMC, which establishes
"minimum requirements and standards" for existing
residential and nonresidential structures and premises
"to insure public health, safety, and welfare." Ex.
Vol. 4 at 6. In addition, the PMC contains provisions
to enforce its safety requirements and standards, many of
which address the same subject matter as the enforcement
provisions in the UBL, such as provisions which govern orders
and notice, the imposition of penalties, and the appeals
process. Id. at 8-9, 11. However, many PMC
enforcement provisions differ from those in the UBL. For
example, the PMC allows twenty days to appeal an order rather
than the ten days provided by the UBL. Id. at 11
(§ 111.1). Also, the PMC provides, "This ordinance
does not supersede Federal or State laws, statutes or
regulations, except as allowed." Id. at 26.
In February 2016, the City Council enacted an ordinance that
established an inspection program. Appealed Order at 5 (#22).
In August 2016, the City began inspecting Pleasant Ridge
rental properties for PMC violations and issuing citations.
The citations imposed a separate fine for each violation, the
fines were imposed as of the date the violation was
discovered, and the fines began accumulating daily.
Id. at 9 (#42). In addition, the citations did not
provide any grace period to allow property owners to make
repairs during which fines would not be imposed. Id.
The citations cite both the UBL and the PMC and are confusing
as to which provisions the City was intending to operate
under. Id. at 20 (#91-92). The citations explain
that an appeal of the order and fine may be made to the
"hearing authority," which is the term used in the
UBL. Id. (#91); Ex. Vol. 8 at 187, 192. The
citations indicate that the appeal period is ten days, which
is from the UBL, rather than twenty days as provided in the
PMC. Appealed Order at 20 (#91) (citing Ind. Code §
36-7-9-7(a) and PMC § 111.1); Ex. Vol. 8 at 187, 192.
During the inspection process, the City sought a search
warrant to conduct an interior inspection, which was issued
pursuant to the UBL. Appealed Order at 20 (#91) (citing Ind.
Code § 36-7-9-16).
In January 2017, the Association filed an eleven-count
complaint against the City, which was subsequently amended to
add the remaining appellees. In February 2017, the Homeowners
moved for a preliminary injunction, asking the trial court to
enjoin the City from continuing its practice of
"imposing ruinous fines that can be waived only by
selling to the developer or tearing down one's own
home" to force Pleasant Ridge property owners to sell to
the developer so that the developer can demolish every home
and build a new subdivision. Appellants' App. Vol. 2 at
127-28. The motion for preliminary injunction was based on
four of the eleven counts in the complaint; namely, that the
City's manner of enforcing the PMC violated (1) the UBL,
(2) the PMC itself, (3) the Equal Protection Clause, and (4)
the Privileges and Immunities Clause. Id. at 128.
In September 2017, the trial court held an evidentiary
hearing on the Homeowners' motion for preliminary
injunction. In December 2017, the trial court issued the
Appealed Order granting a preliminary injunction. As to the
Homeowners' claim that the City's manner of enforcing
the PMC violates the UBL, the trial court concluded that they
are unlikely to prevail on that claim because the City is not
required to follow the UBL. In relevant part, the trial court
found that based on the plain language of the UBL and Indiana
Code Chapter 36-1-3, also known as the Home Rule Act, the
City was not required to exclusively follow the UBL. Appealed
Order at 18-20 (#83-92). The trial court also found that the
citations are "confusing as to what provisions of the
UBL and/or the PMC it is that the City intends to operate
under, but the court cannot find that they are REQUIRED to do
one or the other exclusively." Id. at 20 (#92).
The trial court declined the Homeowners' request to make
specific findings regarding the City's violations of the
UBL, although it found that the City "made no effort to
argue that it ha[d] complied with the procedural
requirements" of the UBL, and that "if the UBL were
mandatory, the City is not in compliance." Id.
at 18, 20 (#82, 93).
In contrast to its conclusion regarding the Homeowners'
UBL claim, the trial court concluded that the Homeowners are
likely to prevail on their claims that the City's manner
of enforcing the PMC violated the PMC, the Equal Protection
Clause, and the Privileges and Immunities Clause. The trial
court concluded that because the Homeowners are likely to
succeed on the merits of a claim that the government is
violating the law, a preliminary injunction should issue
under Indiana's per se rule. The City now brings this
interlocutory appeal. The Homeowners cross-appeal the trial
court's finding that the City is not required to follow
the UBL and the conclusion that they are unlikely to succeed
on their UBL claim.
This is an appeal from the grant of a preliminary injunction.
We observe that the trial court is required to issue special
findings of fact and conclusions thereon when determining
whether to grant a preliminary injunction.
Thornton-Tomasetti Eng'rs v. Indianapolis-Marion Cty.
Pub. Library, 851 N.E.2d 1269, 1277 (Ind.Ct.App. 2006);
Ind. Trial Rule 52(A). We review the special findings and
conclusions for clear error. Ind. Trial Rule 52(A).
"Findings of fact are clearly erroneous when the record
lacks evidence or reasonable inferences from the evidence to
support them. A judgment is clearly erroneous when a review
of the record leaves us with a firm conviction that a mistake
has been made." Coates v. Heat Wagons, Inc.,
942 N.E.2d 905, 912 (Ind.Ct.App. 2011). "We neither
reweigh the evidence nor reassess witness credibility, but
consider only the evidence favorable to the judgment and all
reasonable inferences to be drawn ...