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HomeMy WebLinkAboutCasemaker Dave Coots said the number of parking spaces recited is the minimum number for a 106 room hotel. Jay recommended that the petitioner submit an aerial map showing placement of the Justus Office Building next to what is being proposed —then we can understand the entire site plan. Is there any provision for overflow parking, perhaps the Justus Office Building, so that it would not necessitate taking down all of the trees. Jay agreed that this item should be sent to Committee. Leo Dierckman asked that the Department be a much tighter door control on what goes to Committee —in fact, if need be, Leo recommended that each chair person go over the Agenda with the Staff before it is published —the concern is that we are getting a lot of petitions that are not fully prepared to come before the are doing is creating a lot of un-necessary All we g rY concern and aggravation. full Co g f Eric Seidensticker asked for clarification on the amount of parking —at 106 rooms, maximum guests at 103 —is this an error? How many employees does it take to operate the facility? Sanjay Patel, Mid west Hospitality Inns, Indianapolis, stated that the maximum number of persons to operate li p ty Irt In P the hotel is 7 at any given time, including weekends. Carol Schleif commented that on July 7 she sent a list to the Staff asking for drawings, errors corrected in the drawings, a lighting plan (the only thing of the seven that has come through) a list of things, and only one or two of these items has been submitted. I have been asking for these every time this has come up—my concern is that this will continue in Committee. Rick Ripma asked if there was a conference area with this hotel (yes) and are you not planning on having anyone attend the conference rooms? Dave Coots said the Ordinance requirement is 40 square feet per room which computes to 4200 square feet and requires one parking space per 150 square feet of conference area in addition to the 106 parking spaces for the rooms. The anticipation is that the conference center is used by the hotel guests —we need to work this out with the developer as well as the land owner, Justus, as to whether or not there is room on the adjacent site for a cross parking easement. We do fall short of the Ordinance requirement, given those parameters. Rick Ripma: There are 106 parking spaces? (actually 111) How many are required? (154) You are well short! Wayne Haney reiterated that the Commission needs to see the entire development, including the Justus Property next door for an overall view and evaluation. Kevin Heber thought that this proposal was obviously not the best use of this land. Docket No. 07030035 DP: Pro -Med Lane Holiday Inn and Docket No. 07070009 ADLS, Holiday Inn at Pro Med Lane were referred to the Special Studies Committee for further review September 4, 2007 at 6:00 PM in the Caucus Rooms of City Hall. TABLED 4H. Docket No. 07070003 Z: 146th Gray Rezone (146th St Office Complex) TO The applicant seeks approval to rezone 11.6 acres from S- 1/Residence to B-1/Business SEPT 18 for an office development. The site is located at the southeast corner of 146 St. and Gray Rd. S:/ P1anCommission /Minutes/PC /2007aug21 10 ONE CIVIC SQUARE CARMEL, INDIANA 46032 317/571 -2417 CARMEL 0000785 Sue Westermeier commented that unless substantial intersection improvements are made, this area is not safe for a hotel or anything else. Christine Barton Holmes stated that a dedicated right turn lane would allow people to turn onto US 31. Sue Westermeier said there is an additional alternative on page 20 of the traffic report— Smokey Row would only be right in/right out. In the long run, all of those people on Old Meridian wanting to turn left onto Smokey Row would have to go down to the roundabout, turn around and travel north to make a right turn into Smokey Row. Turning out of where the Holiday Inn would be on Pro -Med Lane is not safe. The number of cars crossing, going to the high school, going to the hospital —it is not safe. Wayne Haney noted that there is no way to turn left onto Old Meridian. Woody Rider asked about the distance between the lot owned by Justus east of this building and Kensington Place response: 230 to 250 feet. Carol Schleif asked if an agreement had ever been made on this property as to how it would be developed; an area resident had made the inquiry. John Molitor, Legal Counsel said there was never a commitment made on this property. Carol Schleif questioned the tree barrier —not deciduous and offers little screening —and if there were any requirements for tree preservation and buffering. Carol also did not like the "box" look of the building and thought it could be eliminated; perhaps a modulating roofline. How can it be "tweaked" to fit the Overlay better? Mike DeBoy said he would be happy to do a year -round buffer planting. The parking spaces and the drive aisles were discussed parking is deemed adequate; the drive aisles are at 23 feet. The drainage plan has been approved by the Dept of Engineering. Christine Barton Holmes said that the petitioner does not need a variance for the buffer and the petitioner is working with Scott to maximize the green space. The parking is right at the required number, and there is no concern regarding the building footprint. The major concern has been the intersection. Sue Westermeier made formal motion to forward Docket No. 07030035 DP; Pro -Med Lane, Holiday Inn and Docket No. 070780009 ADLS, Holiday Inn at Pro -Med Lane to the full Plan Commission with "No Recommendation," seconded by "Woody" Rider, Approved 4 0. 7. Docket No. 07070003 Z: 146th Gray Rezone (146th St Office Complex) The applicant seeks approval to rezone 11.6 acres from S -1 /Residence to B-1/Business for an office /retail development. The site is at the southeast corner of 146 St. and Gray Rd. Filed by Kelli Lawrence of Hearthview Residential, LLC. S:/PlanCommission/ Minutes /SpecialStudies /2008aprOl 7 ONE CIVIC SQUARE CARMEL, INDIANA 46032 317/571 -2417 CARMEL 0001230 Casemaker IN Case Law Browse Page 1 of 10 624 N.E.2d 526 Burrell v. Lake Cty. Plan Commission 526 Donald BURRELL and Alice Burrell, Appellants Plaintiffs, v. LAKE COUNTY PLAN COMMISSION, Thomas K. Parry, M.B. Kuknyo, Jason L. Horn, Frederick N. Fedorchak, M.D., Jerry Aliee, G.W. Molenar, Joseph E. Yahner, Donna Gruszcyk and Rowland A. Fabian, Appellees- Defendants. [Cite as Burrell v. Lake Cty. Plan Commission, 624 N.E.2d 526] No. 45A05 9209 -CV- -339. Court of Appeals of Indiana, Fifth District. December 7, 1993. Transfer Denied March 8, 1994. Affirmed. Rucker, J., concurred in result. 527 528 Fred M. Cuppy, Burke Murphy Costanza Cuppy, Merrillville, for appellants plaintiffs. Thomas K. Parry, Crown Point, for appellees- defendants. SHARPNACK, Chief Judge. This case concerns the denial of approval by the Lake County Plan Commission (Commission) to the preliminary subdivision plan submitted by Donald and Alice Burrell. The Burrells petitioned the trial court for a writ of certiorari to reverse the denial of plan approval and the trial court, after remanding for findings of fact by the Commission, denied relief and affirmed the Commission action. The Burrells now ask us to reverse the trial court and the Commission. We affirm. The Burrells present three issues for our review, which we renumber and rephrase as: 1. Whether the ordinance provision requiring denial of preliminary plan approval "where a proposed subdivision would adversely affect the health, safety, and general welfare of the County" is a permissible standard; 2. whether the Commission's findings are supported by substantial evidence; and 3. whether the Commission was estopped to deny preliminary plan approval on the basis of adverse effect to the "health, safety, and general welfare" of the community because the Burrells already had received tentative plan approval under that same standard. In 1990, the Burrells filed an application with the Commission for subdivision approval of Rainbow Estates, a residential subdivision to be developed on their property in Lake County, Indiana. The Commission granted tentative approval for the subdivision. After various deferrals and revisions of the subject development plans, a public hearing on the Burrells' application for preliminary plan approval was held during the Commission's regular meeting of February 5, https: /demo.lawriter. net /states/IN/ books /Case_Law /record ?record_id= 4968b9cf99 8/6/2009 Casemaker IN Case Law Browse Page 2 of 10 1991. The Burrells' application was denied, consistent with the requirements of the applicable ordinance, based on the Commission's conclusion that the subdivision would have an adverse effect on the health, safety, and general welfare of the community. The Commission made no findings of fact in support of its conclusion. The Burrells filed a verified petition for writ of certiorari challenging the Commission's determination. The trial court held that the standard applied by the Commission was legally sufficient and remanded the case to the Commission for entry of findings of fact in support of its determination. Pursuant to the courts order, the Commission issued its findings of fact and submitted the findings to the trial court. The Burrells then filed a motion to reverse the denial of their request for preliminary plan approval. The trial court denied the motion, and the Burrells appeal from this adverse ruling. The first issue raised by the Burrells is whether the ordinance provision upon which the Commission based its denial of preliminary plan approval is a permissible standard. The Burrells contend that the section of the Lake County Subdivision Ordinance Regulations (the Ordinance) directing the Commission to deny preliminary plan approval if "the proposal does not comply with the requirements of this Ordinance or other ordinances of Lake County, or where a proposed subdivision would adversely affect the health, safety, or general we /fare of the County, "[Ordinance IV(B) (Record, p. 409(a) (emphasis added))], is so vague and uncertain as to be unconstitutional and that it represents an illegal delegation of legislative authority because it purports to give the Commission unlimited discretion.(fnl) 529 Although it is true that in order to be valid an ordinance must be "precise, definite, and certain in expression," it is equally true that the courts of this state will not construe an ordinance so as to defeat its purposes "if it is sufficiently definite to be understood with reasonable certainty." Carpenter v. Whitley County Plan Commission (1977), 174 Ind.App. 412, 419, 367 N.E.2d 1156, 1161 (quoting Fred Geiger& Sons v. Schmitt(1917), 186 Ind. 292, 294, 116 N.E. 50, 51). It is well settled that we are to apply the rules of statutory construction when construing an ordinance. Id. Accordingly, when construing the words and phrases in a particular section, we construe them together with the other words and phrases in that section, as well as with the statute as a whole. Id. Ordinances should be interpreted so as to uphold their validity whenever possible. Id. The Burrells correctly note that there are established limitations on the discretionary power of local planning commissions: "Cities and towns have been granted broad authority by the state to control the development of areas in and adjacent to them. However, public policy requires that this authority be exercised in a standardized and clearly defined manner. A]Ithough public policy requires municipal control of such development, nevertheless the authority of a town to deny a landowner the right to develop his property by refusing to approve the plat of such development is by statute made to rest upon specific standards of a statute or implementing ordinance. Thereafter the approval or disapproval of the plat on the basis of the controlling standards is a ministerial act." Knutson v. State ex rel. Seberger(1959), 239 Ind. 656, 659, 157 N.E.2d 469, 471 (footnotes omitted), rehg denied, 239 Ind. 656, 160 N.E.2d 200. The Burrells argue that the "health, safety, and general welfare" standard does not meet this certainty requirement.(fn2) In support of their position, the Burrells cite several cases standing for the proposition that once a petitioner has established compliance with the specific standards of the statute or implementing ordinance, approval of a plat is a ministerial act -a plan commission has no discretion to approve some plats and disapprove others.(fn3) These 530 cases, however, do not resolve the present issue. In this case, the Ordinance specifically requires the Commission to reject the application for preliminary plan approval when the proposal is not in compliance with the applicable ordinances or where the proposed subdivision would have an adverse effect on health, safety, or general welfare. Most importantly, this health, safety, and general welfare language does not stand alone. Another section of the Ordinance instructs the Commission and property owners alike on the sorts of adverse effects that would properly serve as a basis for denial: "1. Suitability of Land. No land shall be subdivided which is unsuitable for subdivision by reason of flooding, collection of ground water, bad drainage, adverse earth or rock formation or topography, or any https:// demo. lawriter .net/states/IN/books /Case_Law /record ?record_id= 4968b9cf99 8/6/2009 Casemaker IN Case Law Browse Page 3 of 10 feature likely to be harmful to the health, safety, or welfare of the future residents of the subdivision or of the community. Such lands shall not be considered for subdivision until such time as the conditions causing the unsuitability are corrected." Ordinance V(B)(1) (Record, p. 413). Accordingly, we believe that the Ordinance provides ample notice to landowners of those conditions that will be evaluated by the Commission. Although the Commission did not cite V(B)(1) specifically in its findings, its rejection of the Burrells' plan was clearly based on conditions listed in that section: flooding, bad drainage, and risks of leaching and biological contamination due to the presence of adverse soils, i.e., adverse "earth." The Burrells argue that this courts holding in Tippecanoe County Area P /an Commission v. Sheffield Developers, Inc. (1979), 181 Ind.App. 586, 394 N.E.2d 176, trans. denied, requires that we declare the Ordinance constitutionally infirm for lack of specific and concrete standards. In Sheffield Developers, at issue was whether a section in a county subdivision control ordinance contained sufficiently specific and concrete standards so as to give fair warning as to what the local plan commission would consider when reviewing a preliminary plat. The section at issue was so vague that the court wrote we are completely unable to glean from 1.1 any specific or concrete standards by which a proposed plat may be judged." 181 Ind.App. at 602, 394 N.E.2d at 186.(fn4) Unlike the provision at issue in Sheffield Developers, however, the Ordinance in this case does provide notice of the factors the Commission will consider when reviewing an application for preliminary subdivision plan approval.(fn5) 531 In Busse v. City of Madison (1993), 177 Wis.2d 808, 503 N.W.2d 340, review denied, the Court of Appeals of Wisconsin was called upon to determine if a section in a local subdivision ordinance was impermis -sibly vague. The section before the court in that case was very similar to V(B)(1). It provided: "'No land shall be subdivided which is unsuitable for use by reason of flooding, bad drainage, soil or rock formations with severe limitations for development, severe erosion potential, or unfavorable topography, or any other feature likely to be harmful to health, safety or welfare of future residents or landowners in the proposed subdivision or of the community. Busse, 503 N.W.2d at 342 (quoting Madison, Wisconsin General Ordinance 16.23(3)(a)(3). The court held that the language was sufficiently specific, and that denial of a subdivider's revised preliminary plat under that section was not arbitrary, unreasonable, or discriminatory. Id. at 344. We reach the same conclusion. The rule set forth in Sheffield Developers is that "[a] standard must be written with sufficient precision to give fair warning as to what the Commission will consider in making its decision." Sheffield Developers, 394 N.E.2d at 185. We believe that this requirement is satisfied in this case, and hold that the Ordinance provides adequate notice of the conditions which, if found to exist, will preclude approval of a preliminary subdivision plan. Busse, 503 N.W.2d at 344; but compare Harrisburg Fore Associates v. Board of Supervisors of Lower Paxton Township (1975), 21 Pa. Cmwlth. 137, 344 A.2d 277 (provision that land subject to "hazards to life, health or property shall not be subdivided for residential purposes until such hazards have been eliminated or unless adequate safeguards against such hazards are provided" held to be insufficient standard by which to deny proposed subdivision). The Burrells also assert in their argument on this issue that the standard under which their application for preliminary plan approval was denied is invalid because it represents an improper delegation of legislative authority. The parties have not cited, nor have we found, a reported case from this state challenging the validity of a subdivision ordinance provision of the sort at issue here.(fn6) At the outset of our discussion on this issue, we note that, if possible, we must construe the ordinance before us to give meaning and effect to each of its provisions, and to uphold its validity. See generally, Public Storage, 532 568 N.E.2d at 1098; Simon v. Auburn Board of Zoning Appeals (1988), Ind.App., 519 N.E.2d 205, 211; Carpenter, 174 Ind. App. at 419, 367 N.E.2d at 1161. It is well settled that discretion in the formulation of standards is to be exercised when an ordinance is created, rather than when an ordinance is applied. Yater v. Hancock County Planning Commission (1993), Ind.App., 614 N.E.2d 568, 572, reh'g denied, trans. denied. "[D]iscretion only serves to render unpredictable and possibly inequitable decisions if exercised too greatly when a plat proposal is submitted." Id. (citing Suburban Homes Corp. v. Anderson (1970), 147 https: /demo. lawriter.net/states/IN/ books /Case_Law /record ?record_id= 4968b9cf99 8/6/2009 Casemaker IN Case Law Browse Page 4 of 10 Ind.App. 419, 261 N.E.2d 376, 377). Accordingly, we agree with the Burrells that the Commission may not exercise the sort of discretion reserved to a legislative body enacting a law or ordinance to protect the health, safety, and general welfare of the community, and that any attempt to delegate such broad authority would be improper. The question before us, then, is whether the health, safety, and general welfare language in the Ordinance improperly attempts to imbue the Commission with legislative discretion or, instead, directs the Commission to deny preliminary approval based on adverse effect to health, safety, and general welfare upon a determination that specified conditions exist. We believe the latter interpretation is the better view. Within the area of administrative law generally, the courts of this state have held that although a legislative body may not delegate the power to make a law, it may delegate to an administrative body the power to determine facts upon which the law's action depends. State ex rel. Standard Oil Company v. Review Board of Indiana Employment Security Division (1951), 230 Ind. 1, 101 N.E.2d 60; FinancialAid Corp. v. Wallace (1939), 216 Ind. 114, 23 N.E.2d 472. In other words, "a legislative body may enact a law, the operation of which depends upon the existence of a stipulated condition, and it may delegate to a ministerial agency power to determine whether the condition exists." Campbell v. Heiss (1944), 222 Ind. 297, 302, 53 N.E.2d 634, 636. A planning commission's review of a subdivision plan to determine if the plan is in compliance with the applicable statutes and ordinances is a form of exercising delegated authority to make factual determinations within the guidelines established by a legislative body. We reiterate that the Ordinance involved here does not give the Commission unguided discretion to determine what conditions are adverse to the health, safety, and general welfare of the community. Instead, V(B)(1) of the Ordinance, reproduced supra, provides that property subject to specified adverse conditions may not be subdivided. The function of reviewing evidence in connection with an application for preliminary plan approval for the purpose of determining whether those adverse conditions exist does not constitute an improper delegation of legislative authority to the Commission. We view the Ordinance in this case as merely directing the Commission to make a factual determination on whether specific conditions exist that render property unsuitable for subdivision (e.g., flooding, bad drainage, adverse topography) and to deny subdivision plan approval based on health, safety, and general welfare where those conditions are found to exist. Accordingly, we find that the health, safety, and general welfare standard of which the Burrells complain does not represent an improper delegation of legislative authority because the Ordinance provides guidelines regarding those characteristics considered adverse to the community.(fn7) Cf., City of Hammond v. Red Top 533 Trucking Co. (1980), Ind.App., 409 N.E.2d 655, 660 (ordinance empowering common council to ratify excavation permit was invalid where it lacked any guidelines for the council to follow). In their second issue, the Burrells contend that the Commission's findings are not supported by substantial evidence. When a trial court, in the first instance, or an appellate court, on appeal, reviews the decision of an administrative board, the court is bound by the findings of fact made by the board if those findings are supported by substantial evidence. City of Mishawaka v. Stewart(1974), 261 Ind. 670, 677, 310 N.E.2d 65, 69. The reviewing court may not conduct a trial denovo, and the court may not substitute its judgment for that of the agency. Metropolitan Board of Zoning Appeals v. Gunn (1985), Ind.App., 477 N.E.2d 289, 294. The standard for review of agency conclusions of law, however, is different; such deference on the part of the reviewing court is not required and reversal is appropriate if an error of law is demonstrated. Town of Beverly Shores v. Bagnall(1992), Ind., 590 N.E.2d 1059, 1061. In our review of the Burrells' claim that the Commission's findings are not supported by substantial evidence, we may vacate the decision of the Commission "'only if the evidence, when viewed as a whole, demonstrates that the conclusions reached by the [Commission] are clearly erroneous. Id. (quoting City ofIndianapolis v. Hargis (1992), Ind., 588 N.E.2d 496, 498). The Burrells contend that even under this stringent standard of review, they are entitled to reversal. At the public hearing on the Burrells' proposed subdivision, the Commission heard a presentation in support of the Burrells' application and received the Commission staff recommendation that the application be approved, as the staff found that the proposed subdivision was "in compliance with the Comprehensive Plan of Lake County and [met] all the requirements of [the Ordinance].' (Record, p. 72). The Commission also received evidence from remonstrators which included an affidavit from an engineer, Rowland Fabian. The remonstrators presented their position, along with supporting documentation, that the existing surface water drainage problem was unacceptable and that the proposed development would increase the problem. The engineer's affidavit discussed, inter alia, alleged deficiencies in the Burrells' plan, risks of leaching and biological contamination from the septic system for the subdivision, the existing excess surface water and flooding problem in the area, and his opinion that the development would contribute to https: /demo.lawriter. net /states/IN/books /Case_Law /record ?record_id= 4968b9cf99 8/6/2009 Casemaker IN Case Law Browse Page 5 of 10 drainage and soil erosion problems in the area. In March, 1992, pursuant to the trial courts instruction, the Commission entered findings in support of its conclusion that the Burrells' proposed subdivision would have an adverse effect on the health, safety, and general welfare of the community.(fn8) 534 The substantial evidence test is not a test of our agreement with the Commission's findings. Instead, our inquiry focuses on whether the Commission's decision is founded on "a reasonably sound basis of evidentiary support." City of Evansvi //e v. Southern Indiana Gas and Electric Co. (1975), 167 Ind.App. 472, 485, 339 N.E.2d 562, 572. Additionally, we should sustain the Commission's decision if it is correct on any of the grounds stated for disapproval of the plan. Yater, 614 N.E.2d at 570. In their argument on this issue, the Burrells dispute the accuracy of the Fabian affidavit, much of which was adopted in the Commission's findings, and question Fabian's expertise. In his affidavit, Fabian states that he is a registered professional engineer and land surveyor in the State of Indiana with over forty years of experience. He further states that in the preparation of his affidavit he reviewed the plans and plats associated with the proposed development, soils studies, U.S. Coast and Geodetic Survey Quadrangle Maps for the area, a federal manual on wetlands conservation, aerial photography of the area, and that he made a personal walking inspection of the project site and surrounding area. In an administrative proceeding involving technical or scientific 535 evidence such as in this case, it is not our task, nor is it within our area of expertise, to determine the credibility or weight to be given technical evidence such as that found in the Fabian affidavit. See Board of Medical Registration and Examination of Indiana v. Armington (1961), 242 Ind. 436, 440, 178 N.E.2d 741, 743, reh'g denied; Wilfong v. Indiana Gas Co. (1980), Ind. App., 399 N.E.2d 788, 790. Our role, instead, is to determine whether the evidence before the Commission taken as a whole provides a reasonable evidentiary basis for the Commission's determination, and we conclude that it does. The Commission received evidence from the remonstrators in a variety of forms at the hearing on the Burrells' plan. This evidence included oral testimony; a videotape of the area accompanied by oral explanation; and a three -ring binder containing, among other things, an aerial photograph of the proposed development area and surrounding area, photographs depicting flooding in the area, a photocopy of V(B) of the applicable subdivision ordinance (discussed supra), the engineer's affidavit by Rowland Fabian and accompanying attachments, photocopies of newspaper articles describing flooding and sewage disposal problems in Lake County, and a copy of a street and drainage plan that included soils report information. Our review of this evidence leads us to the conclusion that the Commission's findings are supported by substantial evidence of probative value. See Metropolitan Development Commission of Marion County v. Camp /in (1972), 153 Ind.App. 622, 288 N.E.2d 569 (photographs, aerial photographs, testimony of expert witness, and testimony of another witness constituted substantial evidence of probable value supporting determination that statutory prerequisites for granting of zoning variance had been satisfied); Metropolitan Development Commission of Marion County v. Bicknel /(1972), 151 Ind. App. 554, 280 N.E.2d 861 (photographs, plot plan, area map, testimony, and affidavits of absentee owners constituted substantial evidence of probative value to support finding that five prerequisites for granting of zoning variance had been satisfied). With reference to the Commission's findings regarding risks of leaching and biological contamination from the septic system for the subdivision (findings "a" and "d the Commission had before it the engineer's affidavit from Rowland Fabian..Additionally, attached to the Fabian affidavit was a letter from a Purdue University extension agronomist that discussed septic system design in difficult soils and referenced publications forwarded to Fabian dealing with issues of septic system design and installation. Although, as noted by the Burrells, the extension agronomist wrote: "Whether or not homes in a development with 'small' lot sizes would have a high percentage of successfully operating systems depends on many factors, including the ability to lower seasonal water tables. It is probably impossible to give more than an impression or an estimate of risk without a thorough evaluation of the site and proposed development." (Record, p. 526), in the next paragraph, he wrote: "However, if the majority of soils in the area are Morley, Pewamo, Wallkill and Carlisle then the area has a https: /demo.lawriter.net /states /IN/books /Case_Law /record ?record_id= 4968b9cf99 8/6/2009 Casemaker IN Case Law Browse Page 6 of 10 high risk of waste disposal problems." (Record, p. 526). The street and drainage plan submitted to the Commission by remonstrators reveals that a significant percentage of the Burrells' property consists of these four problematic soils. With reference to the Commission's findings regarding both existing and anticipated flooding, bad drainage, and excessive surface water (findings "b" and "c the Commission had before it the Fabian affidavit, a street and drainage plan, photographs of flooding in the area, photocopies of newspaper articles regarding flooding in the county, and a videotape of the area accompanied by oral explanation. We conclude that the Commission was presented with substantial evidence that the proposed subdivision presented significant risks of septic system leaching, as well as increased flooding and drainage problems. See Johnson County Plan Com- 536 mission v. Fayette Building Corp. (1973), 156 Ind.App. 557, 297 N.E.2d 899 (decision of board of zoning appeals to deny application for special exception to permit construction of a mobile home park was adequately supported by testimony regarding drainage and flooding problems). The Commission had a reasonable evidentiary basis on which to conclude that the subdivision would have an adverse effect on the health, safety, and general welfare of the community, a conclusion from which denial of the preliminary plan must follow under the Ordinance. The final issue presented for our review is whether the Commission was estopped to deny preliminary plan approval on the basis of adverse effect to the health, safety, and general welfare of the community because the Burrells already had received tentative approval under that same standard. The Ordinance provides for a three -tier approval process requiring the subdivider to obtain tentative plan approval, preliminary plan approval, and final plat approval. The Ordinance provides that with regard to both tentative plan approval and preliminary plan approval the Commission should reject the proposal where the proposed subdivision would have an adverse effect on health, safety, or general welfare. Ordinance IV(A) (B) (Record, pp. 407(a), 409(a)). In support of their position, the Burrells again cite Sheffield Developers. In that case, the developer submitted an application for preliminary plat approval for consideration by the plan commission at four separate public hearings. Following each of three public hearings, the plan commission failed to approve the preliminary plat. Each time, the developer revised the plat to conform to the plan commission's stated requirements and suggestions. When the preliminary plat was not approved at the fourth hearing, the developer sought relief from the trial court. The trial court ruled that the plan commission was estopped to deny approval of the application at the fourth public hearing based on the developer's noncompliance with a particular section of the subdivision ordinance where the plan commission had not noted the noncompliance as a basis of negative votes following the third public hearing on the plan. This court affirmed the trial court's ruling, noting that the plan commission had a duty to inform the developer of all reasons for negative votes at the first reasonable opportunity. 181 Ind.App. at 600, 394 N.E.2d at 185. In its discussion of a related issue, the court noted its belief that "the trial court's findings evidence a course of conduct by the Plan Commission to 'draw out the Developer's plat approval as long as possible by citing new and different reasons for negative votes." Sheffield Developers, 181 Ind.App. at 598, 394 N.E.2d at 184. In the present case, the Burrells were denied preliminary plan approval following one public hearing and one vote by the Commission. Unlike the subdivider in Sheffield Developers, the Burrells have not been subjected to repeated public hearings and repeated Commission votes resulting in nonapproval. The Burrells' position amounts to a contention that they were entitled to the reasons for negative votes prior to the votes being cast. We find the Burrells' reliance on Sheffield Developers to be unpersuasive. The Burrells also assert that they were misled by the Commission. They argue that "if the [Commission] wanted to reject the subdivision on the basis that it would adversely effect [sic] the health, safety, and general welfare, it was required to do so at the time of the tentative approval." Appellant's brief, p. 49. Landowners are charged with knowledge of relevant statutory provisions affecting the control or disposition of their property, and this rule applies equally to zoning ordinances. Wesner v. Metropolitan Development Commission of Marion County(1993), Ind. App., 609 N.E.2d 1135, 1137 -1138 n. 2 (estoppel cannot be applied where the facts are equally known by or accessible to both parties; doctrine of equitable estoppel ordinarily cannot be used against governmental entities unless the public interest is threatened by the government's conduct). As noted above, the Ordinance specifically requires the Commission to deny approval https: /demo.lawriter. net /states/IN/ books /Case_Law /record ?record_id= 4968b9cf99 8/6/2009 Casemaker IN Case Law Browse Page 7 of 10 537 of both tentative plans and preliminary plans where the development would have an adverse effect on the health, safety, or general welfare of the community. Thus, the Burrells were on notice that their preliminary plan could be rejected based on such considerations even after they had received tentative approval. Their estoppel argument must fail. Id. For all of the foregoing reasons, we affirm. AFFIRMED. BARTEAU, J., concurs. RUCKER, J., concurs in result. Footnotes: 1. The Burrells also assert in their argument on this issue that the Commission was required to grant them preliminary plan approval because they complied with all of the concrete standards in the Ordinance, as evidenced by the Commission staff findings. We note, however, that a plan commission is not required to follow the staff findings and recommendations in all cases. A plan commission may deny approval under appropriate circumstances notwithstanding compliance with technical plan requirements. See Dellinger v. Hagest(1973), 157 Ind.App. 158, 165 -6, 299 N.E.2d 222, 226 (plan commission's findings that development would be tantamount to spot zoning, that it would be difficult to provide necessary services, and that available access road was insufficient, were sufficient grounds for denying approval of subdivision plat notwithstanding compliance with technical plat requirements; thus, res judicata barred subsequent approval absent change in conditions with respect to those findings). 2. The appellees, the Commission and remon strator Fedorchak, cite to Whitesell v. Kosciusko County Board of Zoning Appeals (1990), Ind. App., 558 N.E.2d 889, to counter the Burrells' argument. In that case, the following standard was upheld as being sufficiently specific and concrete within the context of planned unit development review: "'properties adjacent to the unit plan shall not be adversely affected. Id. at 891. Although Whitese /lends some support to the appellees' position, the standard upheld in that case is sufficiently distinguishable from the language at issue here that we choose not to rely on Whitesell. 3. The Burrells cite, inter alia: Knutson, supra (where plat of subdivision complied with all specific requirements of statute, and city ordinance had been declared void, it became the mandatory duty of the town board to approve and accept the plat as submitted); Johnson County Plan Commission v. RamsHead Corp. (1984), Ind.App., 463 N.E.2d 295 (where applicant's plat conforms to the concrete standards set forth in the county ordinance, approval is ministerial function in which plan commission has no discretion); Dosmann v. Area Plan Commission of St. Joseph County (1974), 160 Ind.App. 605, 312 N.E.2d 880 (plan commission exceeded authority when it denied application for proposed subdivision plat where its disapproval was based on consideration of standards extrinsic to the subdivision ordinance); Suburban Homes Corp. v. Anderson (1970), 147 Ind.App. 419, 261 N.E.2d 376 (plan commission had no discretion to impose condition precedent to plat approval that sidewalks be installed in proposed subdivision where sidewalks clearly were not required under the applicable ordinance). 4. The section at issue in Sheffield Developers provided: "This ordinance is enacted for the purpose of adopting subdivision regulations for Lafayette, West Lafayette, and Tippecanoe County, Indiana. The regulation of land subdivision has become widely recognized as a method of insuring sound community growth and the safeguarding of the interests of the home owner, the subdivider, and the local government. The citizens of Tippecanoe County need the assurance that residential subdivisions will provide permanent assets to their community. This ordinance should be viewed, not as an end in itself, but as one tool or technique for the shaping of urban land according to a comprehensive plan for the development of Tippecanoe County as a whole. The planning of subdivision is the joint responsibility of the subdivider and the Tippecanoe County Area Plan https: /demo.lawriter. net /states/IN/books /Case_Law /record ?record_id= 4968b9cf99 8/6/2009 Casemaker IN Case Law Browse Page 8 of 10 Commission (hereinafter called The Commission the former having the prime responsibility for the creation of desirable, stable neighborhoods that become an integral part of the entire county. Subdivision design and utility can enhance or depreciate the character and potentialities of the surrounding areas and stabilize or endanger the individual's investment in a home. The Commission has the responsibility of helping the subdivider achieve a high standard of excellence in the planning of his subdivision, and of informing all subdividers of the minimum standards and requirements for subdivision development within Tippecanoe County.'" Sheffield Developers, 181 Ind.App. at 601 -2, 394 N.E.2d at 186 (quoting Tippecanoe County Subdivision Control Ordinance 1.1). 5. For the same reason, we distinguish another case cited by the Burrells, Goodman v. Board of Commissioners of the Township of South Whitehall (1980), 49 Pa.Cmwlth. 35, 411 A.2d 838, in which the court held that a provision requiring that a subdivision be "coordinated" with surrounding areas so that the area may be developed "harmoniously" was so vague and nebulous that it was an insufficient basis on which to deny preliminary subdivision plan approval. 411 A.2d at 841. 6. The appellees cite to Town of Merrillville Board of Zoning Appeals v. Public Storage (1991), Ind.App., 568 N.E.2d 1092, trans. denied, which involved a municipal code setting forth the prerequisites for granting a special exception under the zoning ordinance. The provision required, among other things, that "[t]he establishment, maintenance, or operation of the special use will not be detrimental to or endanger the public health, safety, morals, comfort or general welfare. Id. at 1094 -1095. This court affirmed the trial court's ruling that the local board's determination that the proposed use would be better suited to an industrial area was an abuse of discretion where the board "did not comment on the facility's effect on the community's health, welfare, morals, or safety [and] no assertion was ever made that the storage facility would have an adverse effect on the community's health, welfare, morals, and safety." Id. at 1095. Appellees argue that Public Storage represents implied approval of the inclusion of a health, safety, and general welfare standard in a local ordinance. It does not appear from the opinion in Pub //c Storage, however, that the validity of the subject provision was ever in issue. Similarly, the Burrells cite to Antrim v. Hoh/t(1952), 122 Ind.App. 681, 108 N.E.2d 197, but that case does not resolve the issue before us. Antrim involved a board of zoning appeals that granted a variance from the applicable zoning ordinance for a use that was substantially different than the uses allowed in the district. The court ruled that the use would so change the character of the area that the variance was improper and that ari amendment to the ordinance was necessary to allow the use. 122 Ind.App. at 689, 108 N.E.2d at 199. The court wrote that "[t]o permit Boards of Zoning Appeals to change substantially the master zoning plans in use districts created by a zoning ordinance would constitute an improper delegation of powers of the legislative body of the municipality. 122 Ind.App. at 690, 108 N.E.2d at 200. 7. Our holding is consistent with the reasoning in three of the opinions from other jurisdictions cited by the Burrells, although we reach a different result. See Cope v. Inhabitants of Town of Brunswick (1983), Me., 464 A.2d 223, 227 (the delegation of power to determine if a use will comply with health, safety, and public welfare is improper unless the local board is given guidelines for determining which characteristics are detrimental or injurious); Watervi/ /e Hotel Corp. v. Board of Zoning Appeals (1968), Me., 241 A.2d 50, 52 (legislative body may specify conditions under which certain uses may exist and may delegate discretion in determining whether or not the conditions have been met but may not delegate discretion unlimited by legislative standards); Moriarty v. Planning Board of the Village ofS/oatsburg (1986), N.Y.App.Div., 119 A.D.2d 188, 506 N.Y.S.2d 184 (the health, safety, and general welfare provision is limited by the specific factors a planning board may consider with respect to site plan review; the language does not constitute a grant of the entire police power; planning board has no authority to regulate matters beyond the obvious purpose of the legislation), appeal denied, 69 N.Y.2d 603, 504 N.E.2d 396, 512 N.Y.S.2d 1026 (1987). Other cases cited by the Burrells include: Car /son v. Town of Beaux Arts Village (1985), 41 Wash.App. 402, 704 P.2d 663 (town council abused its discretion in denying subdivision application on basis that resulting irregularly shaped lot would not be in the best interests of town's citizens where town council could point to no ordinance prohibiting irregularly shaped lot), review denied, 104 Wash.2d 1020; Vick v. Board of County Commissioners of Larimer County (1984), Colo.App., 689 P.2d 699 (board abused its discretion where plat complied with existing zoning regulations and board based its denial on generalities in the master plan). 8. The Commission made the following findings: The Plan Commission now finds that the report submitted to the Lake County Plan Commission on January 31, 1991 by Fabian Engineers, Inc. of Hammond, Indiana, describes in https: demo. lawriter .net /states/IN/books /Case_Law /record ?record_id= 4968b9cf99 8/6/2009 Casemaker IN Case Law Browse Page 9 of 10 Paragraphs 3, 4, 5, 6, 7, and 8 of the inadequacies of the proposed development, specifically the lack of mathematical computations to support the conclusions that the project, as currently contemplated, is consistent with good engineering practices and will not cause damage to areas in and around the project within one mile; also That none of the mathematical computations or procedures found and inferred in the State Board of Health Bulletin SE13 of 1988, specifically pages 41 to 46 and 47 to 50 of that manual, have been provided to the Lake County Plan Commission for review regarding this project; also That even without engineering computations, the following general observations can be made regarding the pending proposal before the Lake County Plan Commission; to -wit a. That at proposed construction density, no septic system other than a mound system can operate effectively in the soils and topography in question. However, even a mound system is highly questionable and presents a substantial risk of leaching which would result in the biological contamination of both the subdivision and the surrounding areas; b. That as the area is currently developed, there is already substantial surface water runoff and flooding during normal rains, and during heaving [sic] rains the area around 129th and Tyler Street is subject to excessive water runoff and flooding. c. That any further development which reduces the existing capacity of the ground to retain surface water (such as the construction of new roadways, large homes, expansive driveways, tennis courts and the like), or the reduction of existing vegetation and trees in the area can only add to the existing problems, further overload the surface water drainage system and contribute to increased soil erosion and related problems of the area. d. That there is a substantial probability that leaching from the project could result in the biological contamination of any and all of the retention ponds, detention ponds and wetland areas located in the watershed in and about the project; also That based upon these general observations, your affiant makes the following general recommendations: 1. That the approval of this project be rejected until both the Plan Commission and the public are satisfied that these problems have been specifically addressed by the petitioner and his engineer and that specific solutions and guarantees have been obtained by the Plan Commission. 2. That the detention ponds be expanded to thirty (30) acre feet at Lots 1, 2 and 27 with equalizing tubing of at least 18 inches diameter to insure that the flow from the perimeter swale and associated surface water runoff not revert to the natural watershed due to excessive loading of both the detention ponds and the equalizing pipes. 3. That this project should be referred to the Lake County Drainage Board for evaluation of the construction of a large retention pond in this subdivision and /or the surrounding area which would not only beautify the area, but would also reduce the problem that even existing surface water runoff in this area results in the creation of a 'de facto retention pond' in Dr. Mirich's front yard. 4. That perimeter foliage and trees be required to beautify the project and prevent excessive erosion. 5. That this proposal be referred to the Lake County Highway Department for evaluation of existing surface water flooding problems in and around 129th and Tyler Streets, the impact of additional loading upon the existing problems and recommendations for the correction of the currently existing flooding problem by the county and petitioner. 6. That the excessive slopes exsisting [sic] in the proposed development would cause severe soil erosion problems, without further preventive measures being taken." (Record, pp. 298 -299). Although we agree with the Burrells that the Commission's findings consist almost entirely of verbatim portions of the engineer's affidavit submitted by Rowland Fabian, the Burrells cite no authority for the proposition that the adoption of portions of the Fabian affidavit vitiates the findings. IN https: /demo.lawriter. net /states/IN /books /Case_Law /record ?record id= 4968b9cf99 8/6/2009 Casemaker IN Case Law Browse Page 10 of 10 N.E.2d https: /demo.lawriter. net states /IN/ books /Case_Law /record ?record_id= 4968b9cf99 8/6/2009 C semaker IN Case Law Search Result Page 1 of 9 852 N.E.2d 591 RICE v. ALLEN COUNTY PLAN COM'N 852 N.E.2d 591 (IN 2006) RICE v. ALLEN COUNTY PLAN COM'N Jeff RICE and Tammy Rice, Appellants- Petitioners, v. ALLEN COUNTY PLAN COMMISSION, Appellee- Respondent. No. 02A03- 0510 -CV -519. Court of Appeals of Indiana. August 15, 2006 Appeal from the Allen Circuit Court, Allen County, Thomas J. Felts, J. 592 James A. Federoff, Jason M. Kuchmay, Federoff Law Firm, LLP, Fort Wayne, IN, Attorneys for Appellants. 593 Robert W. Eherenman, Haller Colvin, P.C., Fort Wayne, IN, Attorney for Appellee. OPINION BAKER, Judge. Appellants petitioners Jeff and Tammy Rice appeal from the trial court's order affirming the decision of appellee- respondent Allen County Plan Commission (the Commission) to conditionally approve the Rices' primary development plan (Development Plan) as to their proposed home, but not to their already constructed garage. The Rices raise a number of arguments, one of which we find dispositive: whether the Commission's decision was unsupported by substantial evidence. Finding that there is not substantial evidence supporting the Commission's decision, we reverse and remand with instructions to remand this cause to the Commission with instructions to approve the Development Plan unconditionally with respect to the home and the garage. FACTS The Rices own a 3.656 -acre parcel of real estate (the Real Estate) in Allen County. The Real Estate is adjacent to the southern border of the West Autumn subdivision (West Autumn), but the Real Estate is not part of West Autumn, having been purposely excluded by West Autumn's developer during the platting process. The Real Estate is located in an RSP -1 /Planned Single Family Residential zoning district, which means that the Rices are required to have a development plan approved absent an approved waiver by the Commission to construct their home and garage. Accordingly, on August 29, 2003, the Rices applied for a waiver of the development plan requirements, which was granted on September 3, 2003. In granting the waiver, the Zoning Administrator found that the Rices' proposed use of the land the home and the garage would not have a significant impact upon adjacent land uses, the street system, utilities, and storm drainage facilities that serve the Real Estate. The Zoning Administrator also found that requiring the submission of a development plan for a single family use would not serve the public convenience and welfare. At the same time they sought the waiver, the Rices also applied for an Improvement Location Permit (ILP) to construct the home and the garage, which were both depicted on the Rices' site plan submitted with the ILP application. On September 4, 2003, the Zoning Administrator issued the ILP. In January 2004, the Rices were working with a builder to complete the final plans and contract to construct the home. They planned to commence construction of the home, which they anticipated would be completed within six months, in March. On March 10, 2004, Jeff spoke with Larry Weber, of the Allen County Surveyor's Office (ACSO), and learned that some of the West https /demo.lawriter.net/states/IN /books /Case_Law /result ?number =8 8/5/2009 Casemaker IN Case Law Search Result Page 2 of 9 Autumn residents were upset because they believed that the West Autumn developer should not have sold the Real Estate to the Rices. The residents believed that the Real Estate was supposed to be and remain an undeveloped West Autumn common area. Additionally, Weber informed Jeff that there was a potential problem related to a bridge that Allen County was planning to construct on Old Auburn Road. Specifically, Weber believed that, if the bridge was constructed as planned, the Rices would not be able to use their driveway, which exits onto Old Auburn Road. On March 25, 2004, Jeff met with Mike Fitch, the Executive Director of the Allen County Highway 594 Department (ACHD), and explained the potential problem surrounding the bridge construction. Fitch indicated to Jeff that he would look into the problem and that Allen County had other possible options with respect to the construction of the bridge. The next day, Jeff went to the Department of Planning Services (DPS), which is the planning and zoning staff of Allen County, to discuss the bridge construction. A DPS employee named Kevin advised Jeff that the Rices could either begin construction of the home or could revise the plans and build an apartment inside the garage for the time being. Kevin further advised Jeff that the Rices would have to live inside the apartment for one year, and afterwards, could then apply for a new permit to build the home. Given the uncertainty surrounding the bridge construction, the Rices concluded that temporarily building the apartment was the best way to proceed. Subsequently, the Rices filed documents to obtain an amended ILP, depicting the garage as containing 672 square feet of living space. (fn1) DPS issued a revised ILP on March 25, 2004.(fn2) On April 1, 2004, Jeff went to the Building Department and applied for building permits to construct the apartment inside of the garage. Pursuant to section 3- 13 -1 -5 of the Zoning Ordinance, an ILP "may be revoked if active work is not commenced within sixty days after the date of its issuance...." Appellant's App. p. 197. On May 25, 2004, sixty-one days after the Rices' amended ILP to construct the garage with the temporary apartment was issued, the Commission notified the Rices that effective on May 26, the previously- issued waiver was revoked. Consequently, the Rices had until June 3, 2004, to apply for development plan approval. At the time of the waiver revocation, the Rices had already completed construction of the garage pursuant to the original ILP, and work on the temporary apartment, pursuant to the amended ILP, was progressing. The Commission contends that it revoked the waiver because it learned that Rice had neither applied for nor received plumbing and heating permits or other required county approvals for the living space in the garage. On June 3, 2004, the Rices filed their Development Plan, which included the existing garage and the not yet constructed home, for approval. By that time, the Rices had over $100,000 invested in the Real Estate, the construction of the garage, the driveway, and excavating and survey work. On June 10, 2004, the Allen County Drainage Board approved the Rices' drainage plans related to the Development Plan. On June 25, 2004, the President of the West Autumn Homeowner's Association submitted a letter and petition objecting to the Development Plan. The crux of the Association's objection to the proposed construction was that the West Autumn 595 Developer had allegedly promised the West Autumn residents that the Real Estate would be common area owned by the Association, and would remain undeveloped. On June 30, 2004, Fitch and Michael C. Eckert, Manager of Technical Services, wrote to the Commission to relate that the ACHD had "[n] o apparent conflicts" with the Rices' Development Plan. Appellants' App. p. 219 -21. On July 6, 2004, the Rices' engineering and surveying consultant sent a letter to the ACSO confirming that the Development Plan would meet all ACSO requirements. On July 7, 2004, the City of Fort Wayne Water Resources Development Services advised DPS that it did not object to the Development Plan. On July 8, 2004, the Commission held a public hearing on the Rices' Development Plan. At the public hearing, the Rices presented and explained the Development Plan, and established its alleged compliance with the Zoning Ordinance. As to the compatibility of the detached garage with surrounding land uses, the Rices presented the following evidence: the garage is lower in elevation than a typical two -story house and is earth -tone in color, which is compatible with residences in the area, Appellants' App. p. 41; the Rices proposed to plant evergreen trees along the north side of the garage and the driveway to act as a buffer to the West Autumn Homes, id. p. 43; the primary purpose of the garage was to store the Rices' motor home, id. p. 41; within a 3/4 -mile radius of the Real Estate, there are a number of detached structures and outbuildings similar to the garage, although West Autumn admittedly prohibits such structures, id. p. 45, 237, 279. In response to West Autumn residents' suspicions that the Rices never intended to build the home, they presented the following https: /demo.lawriter. net /states/IN /books /Case_Law /result ?number =8 8/5/2009 Casemaker IN Case Law Search Result Page 3 of 9 evidence: they were under contract with Aspen Bay, a home builder, who was prepared to begin construction as soon as the necessary approvals and permits were obtained or issued, id. p. 41 -42; the initial cause for delay in construction of the home the bridge was no longer an issue because ACHD had assured the Rices that driveway access to Old Auburn Road would not be impacted by the planned construction of the bridge, id. p. 42, 49; Eckert testified on behalf of ACHD at the public hearing that "[w]e have issued the permit and we will make allowance for [the Rices' project] with the design of Auburn Road." Id. p. 49. The remonstrators presented the following evidence in opposition to approval of the Development Plan: a number of West Auburn residents opposed the construction because their developer had allegedly promised them that the Real Estate would remain undeveloped common area, id. p. 54, 59; a number of neighbors of the Real Estate had suspicions that the Rices were using the garage for commercial purposes because they had observed trucks entering and exiting the garage and a hot tub being stored in the garage, id. p. 63(a); and a West Auburn resident presented an appraisal of his property that allegedly reveals a reduction in his property value, presumably as a result of the Rices' garage, id. p. 58(a), 64, 247. In response, the Rices emphasized the following: any promises made to West Auburn residents by the developer are irrelevant, inasmuch as the Rices, not the developer, owned the Real Estate at the time they submitted the Development Plan; the trucks entering and exiting the garage were involved in the construction and interior work on the structure; and the appraisal actually shows an increase, not a decrease, in the particular residents West Auburn residence. 596 On July 27, 2004, the Commission approved the Development Plan with respect to the home, but imposed a number of conditions, including the following: the Rices must execute a written commitment containing the provisions and restrictions of the West Auburn covenants. The Commission denied the Development Plan with respect to the garage. On August 24, 2004, the Rices filed a petition for the trial court to review the Commission's decision, seeking an order reversing the decision and approving the Development Plan as submitted by the Rices without any conditions. The Rices filed a motion for summary judgment on May 27, 2005, and the Commission filed a cross motion for summary judgment on July 1, 2005. Following oral argument, the trial court entered an order granting summary judgment in favor of the Commission on September 30, 2005, finding, among other things, as follows: [the Rices'] failure to take any action (an appeal or otherwise) in response to [the Commission's] Zoning Administrator's May 25, 2004 determination to revoke the previously- issued administrative waiver renders the prior acts of both parties irrelevant for purposes of the Court's disposition of the question. In its decision, [the Commission] found that [the Rices'] development plan with respect to the garage did not meet the Allen County Zoning Ordinance's criteria because the garage would be used for vehicles that would be unrelated to single family use and that the size of these vehicles, along with the property access onto Old Auburn Road, would create an issue of road safety. The record indicates evidence pertaining to this determination was presented by the [ACHD] and testimony given regarding large vehicles entering and leaving the real estate and use of the real estate for non residential properties. The record reflects evidence that the garage did not maintain the role and character of the neighborhood and was not compatible to the surrounding area, that the garage was used for commercial purposes, and that the garage impacted surrounding land values.... The Court finds that the evidence cited by [the Commission] in support of its decision meets the "substantial" test as set forth above. the Court is forced to confront the almost artificial reality of reviewing a Plan Commission decision meant (in the vast majority of cases) to be made in the abstract (i.e. pre construction) instead of with an already completed structure. Concepts of equity and equitable estoppel weigh more heavily in [the Rices'] favor, as both parties recognize (as does the Court) that the approval of the decision to impose the West Autumn sub division provisions and restrictions may necessarily result in the removal of the garage.... As discussed above, the Court must limit its review in law to the series of events beginning with [the Rices'] June 3, 2004 filing of their development plan for approval. [The Commission's] act was legally sound, presumptively correct and met the conditions set forth by both parties as identified in Metropolitan Development Commission v. Schroeder(Ind.App.2000) 727 N.E.2d 742. in the artificial reality the Court finds itself in review of this decision, Petitioners' argument must fail as ill- timed. In its examination of the entire Record of Proceedings in this case, including the timeline of events, the Court https /demo.lawriter.net/states/IN /books /Case_Law /result ?number =8 8/5/2009 Casemaker IN Case Law Search Result Page 4 of 9 597 could find itself more likely to preferentially consider Petitioners' equitable estoppel argument if it was presented as a part of an appeal of [the Commission's] Zoning Administrator's revocation of [the Rices'] waiver in May, 2004 (not as a part of the appeal of the decision on the development plan). The Court must find that [the Commission's] decision to conditionally approve [the Rices'] development plan with a written commitment was proper. Appellants' App. p. 23 -31. The Rices now appeal. DISCUSSION AND DECISION 1. Standard of Review In reviewing an agency decision, we may provide relief only if the decision is: (1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law; contrary to constitutional right, power, privilege, or immunity; (3) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right; (4) without observance of procedure required by law; or (5) unsupported by substantial evidence. EquicorDev., Inc. v. Westfield- Washington Twp. Plan Comm'n, 758 N.E.2d 34, 36 (Ind.2001). An administrative act is arbitrary and capricious only where it is willful and unreasonable, without consideration and in disregard of the facts and circumstances of the case, or without some basis that would lead a reasonable and honest person to the same conclusion. Id. at 37. Additionally, in the context of zoning proceedings, evidence is substantial "if it is more than a scintilla and less than a preponderance. 5 5 Enters., Inc. v. Marion County Bd. of Zoning Appeals, 788 N.E.2d 485, 491 (Ind.Ct.App.2003). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Id. Additionally, it must be more than speculation and conjecture. Ind. Alcoholic Beverage Comm'n v. River Road Lounge, Inc., 590 N.E.2d 656, 659 (Ind.Ct.App.1992). On appeal, where, as here, the trial court's factual findings were based on a paper record, we conduct a de novo review of the record. Equicor, 758 N.E.2d at 37. But in reviewing an administrative decision, a court is not to try the facts de novo or substitute its own judgment for that of the agency. Id. We presume that the zoning board's decision is correct, and the decision will not be overturned unless it is arbitrary, capricious, or an abuse of discretion. Plan Comm'n for Floyd County v. Klein, 765 N.E.2d 632, 642 (Ind.Ct. App.2002). The burden of demonstrating the invalidity of the agency action is on the party asserting invalidity. Equicor, 758 N.E.2d at 37. To that end, the party asserting invalidity must establish as a matter of law that each criterion for approval of a zoning application has been fulfilled. Town of Beverly Shores v. Bagnall, 590 N.E.2d 1059, 1061 (Ind.1992). II. Substantial Evidence The Rices assert that there is not substantial evidence supporting the Commission's conditional approval of their Development Plan. The Commission responds by emphasizing that it is the Rices' burden to establish that their Development Plan meets the criteria in the Allen County Zoning Ordinance, which requires that to approve of a development plan, the Commission must determine that it: (1) meets the design standards imposed by this Ordinance; (2) satisfies the stated purposes set forth in I.C. 36- 7- 4- 601(c); 598 (3) complies with the stated goals and purposes of the Allen County Comprehensive Plan A.C.C. 2 -3; (4) adequately satisfies the following general development standards: (A) compatibility with surrounding land uses; (B) availability and coordination of sewer, water, storm drainage and utility services or facilities; (C) allocation of appropriate areas for streets, parks, recreational facilities and schools, if necessary; and, (D) appropriate building separation, vehicular circulation, parking, site improvements and signage; and https /demo.lawriter.net /states/IN /books /Case Law /result ?number =8 8/5/2009 casemaker IN Case Law Search Result Page 5 of 9 (5) provides for a distribution of traffic in a manner which creates conditions favorable to the health, safety, convenience and harmonious development of the community, particularly considering the following factors: (A) the design and location of proposed street and highway access points for the purpose of minimizing safety hazards and congestion; (B) the capacity of adjacent existing streets and highways to safely and efficiently handle traffic projected to be generated by the development; and, (C) the coordination of the streets and entrances in the development plan with existing and planned streets and highways. Appellants' App. p. 180 -81. The Commission found that the proposed home met all of the criteria. As to the garage, the Commission found that it met the design standards imposed by the zoning ordinance but that it did not meet any of the remaining criteria. Essentially, the Commission concluded that the garage failed to meet the remaining criteria for three basic reasons: (1) the garage was being used for impermissible commercial purposes rather than for single family residential purposes; (2) the large vehicles used in the garage create hazardous traffic safety conditions with respect to ingress and egress from the driveway; and (3) the garage is incompatible with surrounding land uses because the Real Estate was originally intended to be part of West Autumn and subject to the restrictive covenants of that subdivision, because the garage does not maintain the role and character of the surrounding area, and because the garage adversely affects property values. A. "Commercial" Use Turning first to the Commission's conclusion that the Rices were using the garage for impermissible "commercial" purposes, we observe that neither the Commission nor the evidence supporting this conclusion define the term "commercial." The accepted definition of "commercial" is: "Relates to or is connected with trade and traffic or commerce in general; is occupied with business and commerce." Black's Law Dictionary 270 (6th ed.1990). "Commerce" is defined as "[tjhe exchange of goods, productions, or property of any kind; the buying, selling, and exchanging of articles." Id. at 269. Initially, we note that there is no evidence anywhere in the record that the Rices have ever used the garage to conduct any sort of commerce. No one has ever posited that the garage was being used to buy, sell, or exchange goods, productions, property, or articles of any kind. Consequently, there is unquestionably less than a scintilla of evidence supporting this conclusion. In arriving at the conclusion that the Rices were using the garage for impermissible "commercial" purposes, the Commission based its conclusion sole/yon the size of the garage and a series of comments 599 made at the public hearing by West Autumn residents, all of which are similar to the following: "I have seen huge trucks come in there. I couldn't tell what was on them, or what they were doing there." Appellants' App. p. 55 -56. I had a barn that big on a farm that I sold a few years ago, and I could park 22 cars in that barn. I didn't, but I figured out square footage that way. There's no way that, in my opinion, you can call that anything but a commercial structure." Id. p. 57. "It's it's the size of it. It I mean, a standard garage just isn't this size. The only time you see a building this size is for commercial application. I'm sorry if this is a false accusation, but in peoples' eyes that have to view this every day, this is what we the first thing that comes to mind. I don't know anybody that's ever called it a garage." Id. p. 58. Essentially, the only evidence supporting the conclusion that the garage was being used for impermissible "commercial" purposes were the layperson observations offered by West Autumn residents who were opposed to the construction all along who testified that they had seen a number of large trucks entering and exiting the garage and that there was a hot tub being stored in the structure. The Rices, on the other hand, offered evidence that all of the large vehicles that were entering and exiting the Real Estate were involved in the construction and interior work on the garage. Appellants' App. p. 63(a). Moreover, the hot tub that was delivered to the garage was being stored there until the completion of the construction of the home, at which time the hot tub will be installed in the home. Id. https: /demo.lawriter. net /states/IN /books /Case_Law /result ?number =8 8/5/2009 Casemaker IN Case Law Search Result Page 6 of 9 Additionally, we note that all of the evidence relied upon by the Commission relates to the Rices' prior use of the garage. The evidence in the record is undisputed regarding the Rices' future plans for the structure: the only vehicles that the Rices will use on the Real Estate and store in the garage are their personal vehicles and a motor home. That is the only use for which their Development Plan sought approval, and there is no evidence in the record establishing that any future use of the garage will run afoul of the zoning ordinance.(fn3) In sum, there is no evidence in the record that the Rices have ever used the garage to conduct commerce. The only evidence in the record tending to support the Commission's conclusion regarding the Rices' past use of the garage consists solely of arguably unreliable statements made by West Auburn residents. The only evidence in the record regarding the Rices' plans for future use of the garage establishes that they will use it for their own personal vehicles and storage of their motor home, which are permissible uses pursuant to the zoning ordinance. Based on this record, we cannot conclude that a reasonable mind might accept this evidence as adequate to support a conclusion that the Rices will use their garage for impermissible "commercial" purposes. To the contrary, the only evidence supporting that conclusion is arguably irrelevant inasmuch as it focuses on past conduct and is no more than speculation and conjecture. Consequently, we are compelled to conclude that there is not substantial evidence supporting this conclusion. Moreover, to 600 the extent that the Commission determined that the purported "commercial" purpose of the garage affected the Rices' ability to satisfy several of the relevant zoning criteria, we conclude that the Rices have established their compliance with those criteria as a matter of law. 8. Traffic Safety The next way in which the Commission concluded the garage runs afoul of the zoning criteria relates to traffic safety. Specifically, the Commission found that the large vehicles that would be entering and exiting the property created hazardous conditions with respect to ingress and egress from the driveway. Initially, we note that we have already concluded that there is no support in the record for a conclusion that, after construction is completed, there will be any vehicles, large or otherwise, regularly entering and exiting the Real Estate except for the Rices' personal vehicles and motor home. Thus, the record does not support the assumption underlying this conclusion. To the extent, therefore, that this conclusion rested on the Commission's determination that the traffic coming and leaving the Real Estate should be limited only to the Residence," together with its concern "related to the fact that Rice had previously used the [garage] for large truck traffic and for commercial purposes," Appellee's Br. p. 20, it is not supported by substantial evidence. To the extent that the Commission's concern about large vehicles relates to the Rices' motor home,(fn4) we turn to the following evidence relied upon by the Commission in arriving at its conclusion regarding traffic safety. It relied upon testimony from a West Autumn resident who had difficulty exiting her own driveway with a four -door truck but did not testify that she had ever been on or exited from the Real Estate. Moreover, she conceded that she can safely pull out of her driveway if she waits until traffic clears in both directions, and her husband admitted that he was certain that a vehicle could exit the Rices' driveway and stay in the appropriate lane. Additionally, another neighbor testified that he had never seen a driveway as close as the Rices' is to a bridge, and that he believed that the location would create safety problems. On the other hand, the Rices presented evidence regarding the traffic safety of their Development Plan. The Rices established that they had approval from the Highway Department for their driveway access. Moreover, the Highway Department had assured the Rices that any future construction of the bridge on Old Auburn Road would accommodate the Rices' access. At the public hearing, the Highway Department representative commented that the department had "no apparent conflicts" with the Development Plan. Appellants' App. p. 49. Additionally, the Executive Director of the Highway Department testified that although the driveway's location is not ideal, he did not believe there would be a blind spot. Id. p. 65. Thus, the only evidence in the record from any government officials, specifically, employees of the Highway Department, establishes that there are no traffic concerns, safety or otherwise, with respect to the Rices' driveway. And the only evidence in the record supporting the Commission's conclusion that a motor home 601 exiting the Real Estate would cause safety hazards is testimony from West Auburn neighbors who had never been on the Real Estate or attempted to drive a motor home onto or off of the Real Estate. Therefore, we are again compelled to conclude that there is not substantial evidence supporting the Commission's determination that the Real Estate presented any traffic safety problems. Furthermore, we conclude that the Rices have established their compliance with the traffic safety zoning criterion as a matter of law. https: demo. lawriter .net /states/IN/books /Case_Law /result ?number =8 8/5/2009 Casemaker IN Case Law Search Result Page 7 of 9 C. Compatibility with Surrounding Land Uses Finally, the Commission concluded that the garage does not comply with the zoning ordinance criteria because it is incompatible with surrounding land uses. Specifically, the Commission found that the Real Estate was originally intended to be part of West Autumn and subject to the restrictive covenants of that subdivision, the garage does not maintain the role and character of the surrounding area, and the garage adversely affects property values. The Commission described the first reason it concluded that the garage is incompatible with surrounding land uses as follows: The surrounding land uses consist mainly of platted residential lots that are restricted by plat covenants. In fact, when the Real Estate was rezoned, it was originally intended that upon the approval of the primary plat, the restrictive covenants would be applied to and recorded against the Real Estate. The Real Estate was originally part of the common scheme and development of the primary plat of West Autumn; however, when the Real Estate was excluded from the recorded secondary plats, the restrictions on the platted lots in West Autumn were omitted from the conveyance of the Real Estate from the developer to the Applicant. Appellants' App. p. 20. The intent of the West Autumn developer is entirely irrelevant to the approval of the Development Plan. So, too, are any promises the developer may have made to the West Autumn residents regarding the intended use of the Real Estate.(fn5) Instead, what matters are the terms of the Rices' purchase of the Real Estate. To that end, we emphasize that when the Rices lawfully purchased the Real Estate, it was not subject to any restrictive covenants. For our purposes, the story begins there. Thus, we conclude that the Commission erred in relying on the alleged original plan for the use of the Real Estate. The next determination made by the Commission with respect to compatibility was that the garage did not maintain the role and character of the surrounding land area. Specifically, a number of West Auburn residents complained that the garage has adversely affected the view from their property. Additionally, West Auburn residents complained that in their subdivision, they are not permitted to have a detached garage pursuant to their restrictive covenants. Many of the residents based their complaints on an understanding that the garage was a commercial structure. On the other hand, although the Rices concede that West Auburn residents are not permitted to have detached structures such as the garage, they presented evidence that within a 3/4 -mile radius of the Real Estate, there were a number of detached structures and outbuildings similar 602 to the garage. Additionally, they presented evidence that the garage was visibly compatible with and maintained the role and character of the neighborhood, inasmuch as it was lower in elevation than a typical two -story house and earth -toned in color. Moreover, to buffer the West Autumn homes, the Rices proposed to plant evergreen trees along the north side of the garage and the driveway. Thus, the Rices presented evidence establishing that the garage was visually compatible with the surrounding area, that although it did not comply with the West Autumn restrictive covenant there were other similar detached structures within a 3/4 -mile radius of the Real Estate and that the Rices planned to plant evergreen trees as a buffer to the West Autumn subdivision. On the other hand, the only evidence supporting the Commission's conclusion was testimony from West Autumn residents who complained about their view and about the fact that they were not permitted to have similar structures on their property. The Commission makes much of the fact that the garage does not comply with the West Autumn restrictive covenants; but again, we emphasize that the Real Estate is not subject to those covenants. As aptly put by the Rices, "[t]he Zoning Ordinance directs the Plan Commission to ascertain whether the Garage is compatible with surrounding land uses; the Zoning Ordinance does not require that surrounding land uses be identical, nor does it require that the Garage be a permitted structure in a neighboring development. "(fn6) Reply Br. p. 7 (emphasis in original). And although similarity to the surrounding properties is a fair consideration in terms of compatibility, there is no evidence in the record that the Commission considered any other surrounding land areas aside from West Autumn. While West Autumn may be an important factor, it is improper to turn a blind eye to the fact that the Real Estate only borders West Autumn on one side and that there are other properties in the near vicinity that have detached structures that are similar to the garage. Under these circumstances, we must conclude that there was not substantial evidence supporting a conclusion that the garage was incompatible with surrounding land uses. Finally, the Commission concluded that the garage was having a "significant [detrimental] impact on land values of adjacent residences." Appellants' App. p. 20. In arriving at this conclusion, the Commission relied on testimony from West Auburn residents who were of the opinion that the value of their property had decreased since the garage was constructed and on one appraisal that the Commission concludes establishes a decline in value to the house or $28,644 or 13.2% "because of the commercial structure." Appellee's Br. p. 15. As to the https /demo.lawriter.net/states/IN /books /Case_Law /result ?number =8 8/5/2009 Casemaker IN Case Law Search Result Page 8 of 9 residents' opinions, we observe that aside from the lone appraisal, none of the opinions were based on any facts; rather, they were based on opinions such as the following: the president of the homeowners' association testified that he looked at a lot from which you can see the garage and will not pay that kind of money for that 603 view." Appellee's App. p. 77. Another resident testified that he believed that the garage has "impacted the property values of several hundred houses...." Appellee's App. p. 116. Turning to the appraisal, frankly, we are perplexed as to the Commission's conclusion that it shows a decline in value to the house. The first page of the exhibit does, indeed, say "Loss of Property Value: $28,644... $217,000 appraised value x 13.2% loss percentage $28,644." Appellants' App. p. 243. But this page does not appear to have been created by the appraiser; to the contrary, the official "Appraisal" begins on the following page, and indicates that the homeowner purchased the property in 2002 for the sum of $195,000, and at the time of appraisal less than two years later the home was worth $217,000. Thus, this shows a net increase in value of 10.5% in less than two years. Indeed, nowhere in the appraisal do the figures $28,644 or 13.2% appear. Furthermore, there is no mention in the appraisal of the garage aside from a photograph attached to the report. Additionally, the report concludes that the home has an average residential view, which is the same designation given to all of the comparable homes referenced in the appraisal. We simply do not understand how the Commission arrived at the conclusion that this appraisal establishes a decline in property value, nor how it concluded that the appraiser determined that the alleged decline was caused by the garage. The Commission makes much of the fact that the Rices did not introduce their own expert evidence to establish that the garage has not had a negative impact on surrounding land values. But impact on surrounding land values is not an explicit criterion included in the zoning ordinance, and while the Commission may choose to consider it as part of its overall compatibility analysis, the Rices are not required to anticipate that decision and present evidence to prove a negative. As the record stands, there is simply no evidence that the garage had a negative impact on surrounding land values. Because we have concluded that the consideration of the West Autumn developer's intent was improper and that there is not substantial evidence supporting the Commission's determinations that the garage does not maintain the role and character of the surrounding area and that the garage adversely affects property values, we are compelled to conclude that there is not substantial evidence supporting the Commission's determination that the garage is incompatible with surrounding land uses. Additionally, we conclude that the Rices have established their compliance with the compatibility with surrounding land uses zoning criterion as a matter of law. In sum, we have concluded that the Rices have established their compliance with the zoning criteria at issue of a matter of law. Furthermore, there is not substantial evidence supporting the conclusions that the garage is a "commercial" structure, that the garage presents traffic safety problems, or that the garage is incompatible with surrounding land uses. Thus, the Commission erred in concluding that the Rices failed to meet the zoning ordinance criteria for approval of their Development Plan. It also erred in refusing to approve the Development Plan with respect to the garage and in requiring the Real Estate to comply with the West Auburn restrictive covenants.(fn7) We commend 604 the trial court for being troubled by the posture and equities of this case and acknowledge that it believed its hands to be tied. But we have determined that the trial court did not arrive at the appropriate result and conclude, therefore, that the trial court erred in affirming the Commission's decision. We reverse the judgment of the trial court and remand with instructions to remand this cause to the Commission with instructions to approve the Development Plan unconditionally with respect to the home and the garage. MAY, J., concurs. SULLIVAN, J., concurs in result with opinion. SULLIVAN, Judge, concurring in result. I concur in the reversal of the judgment and in the remand with instructions to approve the Development Plan. I do so, however, because I agree that the Rices established, as a matter of law, each of the criteria required for approval of the application. I do not join with my colleagues in their discussion which couches the determinative analysis in terms of the sufficiency of the evidence https: /demo.lawriter. net /states/IN/books /Case_Law /result ?number =8 8/5/2009 Caseniaker IN Case Law Search Result Page 9 of 9 to support the Commission's various conclusions. That is not the proper standard of review as the majority itself observes in the last paragraph of Part I. Footnotes: FN1. Pursuant to section 3 -6 -1 -2 of the Zoning Ordinance, in an RSP -1 zone, a detached building such as the Rices' garage is not permitted as a primary use; rather, it is an accessory use, which is a building or use subordinate to another structure or use located on the same lot. With no residence constructed on the Real Estate, the garage was in violation of the ordinance. Thus, adding 672 square feet of living space to the garage enabled it to become a permissible primary use as a dwelling. FN2. After the revised ILP was issued, the Rices no longer had a valid permit to construct the home. Hence, they intended to follow Kevin's advice by completing construction of the garage and living space, waiting for a period of time, and then seeking a new ILP for construction of the home. FN3. As an aside, we note that if, after the Rices complete their construction, they use their Real Estate in violation of the zoning ordinance, the Zoning Administrator can initiate enforcement proceedings. FN4. We note our skepticism that this conclusion rested on the motor home, inasmuch as the Commission expressed concern only with respect to the "commercial" traffic on the Real Estate. Giving the Commission the benefit of the doubt, however, we will analyze the conclusion with respect to the motor home. FNS. The West Autumn residents must take that issue up with the developer. The Rices have no part in that dispute. FN6. The Commission argues that because Rice did not present evidence about what zoning restrictions regulated the other properties in the area that have detached structures, his evidence regarding such properties is not useful. But as we have already noted, the Rices do not need to prove that their use of the Real Estate is identical to surrounding land uses, only that it is compatible. Thus, the zoning restrictions placed on surrounding properties is of no moment, inasmuch as they are surrounding lands containing structures similar to the garage. FN7. Inasmuch as we have concluded that there is not substantial evidence supporting the Commission's decision, we need not consider whether the Rices should have been entitled to present an estoppel argument based on the Commission's past behavior and instructions to the Rices with respect to the Real Estate. Similarly, we need not consider whether the trial court erred in refusing to consider any events prior to the filing of the Development Plan. IN N. E.2d https /demo.lawriter.net/states/IN /books /Case_Law /result ?number =8 8/5/2009