Posted by: Patricia Salkin | April 26, 2015

IN Appeals Court Holds Claim that a Portion of Zoning Ordinance was Unconstitutional as Applied Was Not a Proper Claim for Declaratory Judgment

Appellee–Petitioner’s Ark Park, LLC filed a complaint against the Town, seeking judicial review of the Town Council’s zoning decision and requesting a declaratory judgment regarding both the zoning status of Ark Park’s property and the constitutionality of a zoning ordinance. Ark Park attached some documents to its complaint but did not file the board record or request an extension of time to file the record within thirty days as required by the applicable judicial review statute. The Town filed a motion to dismiss Ark Park’s claim for judicial review and declaratory judgment. The trial court denied the Town’s motion to dismiss, allowed Ark Park to amend its complaint, and gave Ark Park additional time to transmit the board record. Appellants–Respondents, Town of Pittsboro Advisory Plan Commission and Town of Pittsboro Town Council then brought this interlocutory appeal.

In 2004, the Town Council adopted an ordinance that set forth the zoning for the Town of Pittsboro, which contained a section, Section 13, relating to a Planned Unit Development (“PUD”). Section 13 set forth the specific requirements and process for applying for a PUD, which included submitting a concept plan and a master plan for the development. About seven years after the approval of Ark Park’s concept plan, Ark Park submitted a PUD master plan application to the Town Council. Because Ark Park submitted this master plan application more than two years after the approval of its concept plan, Ark Park was required, pursuant to Section 13(C)(4) of the 2004 Zoning Ordinance, to resubmit its concept plan for approval. On November 20, 2012, the Town Council, after holding a public meeting, issued a decision to deny Ark Park’s 2012 PUD Concept Plan Application.

Despite Ark Park’s concession that it failed to comply with the statute, Ark Park contends that it is still entitled to judicial review because the copies of the documents that it attached to its complaint were “sufficient to permit review of the case on the merits. However, Ark Park neither transmitted the board record nor sought an extension to file it within thirty days of filing its complaint for judicial review. As a result, the court found it was not entitled to judicial review of the Town Council’s 2012 Decision.

Next, Ark Park asserted that Section 13 was unconstitutionally vague, and also alleged that Section 13 established an unconstitutional denial of due process and an unconstitutional taking of property without just compensation because the provision regarding resubmitting a concept plan “potentially traps an applicant in the status of having PUD zoning without an approved concept plan.” Here, Ark Park’s claim for declaratory judgment challenged the constitutionality of Section 13 of the 2004 Zoning Ordinance based on the Town Council’s denial of its 2012 PUD Concept Plan Application. As such, Ark Park was attacking the zoning ordinance as applied to its property as a result of the Town Council’s 2012 Decision and that it is not challenging the ordinance as void in its entirety. Accordingly, the court held that Ark Park’s specific constitutional challenge was not a proper claim for declaratory judgment. The court therefore reversed the trial court’s order denying the Town’s motion to dismiss, and directed the trial court to strike these claims from Ark Park’s complaint.

Town of Pittsboro Advisory Plan Commission v Ark Park, LLC, 26 N.E. 3d 110 (IN App. 2/12/2015)

The opinion can be accessed at:

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