Posted by: Patricia Salkin | September 11, 2015

IN Court of Appeals Holds Commission Properly Abdicated its Responsibility to Exercise Exclusive Control of the Subdivision of Land to Applicant’s Neighbors

In 2009 and 2010 John Counceller submitted applications to the Commission to subdivide the Lot into two lots. In 2013, Counceller again submitted an application to subdivide the lot in two, which request was approved by the Plat Committee in 2013; however, Counceller did not execute the approval and it expired in January of 2014. In March 2014, the Plat Committee approved Counceller’s application, and public notice of the Plat Committee’s approval was provided in May. In July 9, 2014, the Commission conducted a hearing and voted to deny Counceller’s request to resubdivide on the basis that it did not receive the consent of 75% of the other property owners in Indian Hills Estates. Counceller petitioned for judicial review of the Commission’s decision in Bartholomew Circuit Court, arguing that the Commission should be estopped from enforcing the 75% requirement of Section 225 and that the Commission improperly abdicated its authority to Counceller’s neighbors. The trial court denied Counceller’s petition and he appealed.

At the outset, the court noted that the doctrine of equitable estoppel requires three elements: a lack of knowledge and of the means of knowledge as to the facts in question; reliance upon the conduct of the party estopped; and an action based thereon of such a character as to change his position prejudicially. Counceller argued that the Commission should be estopped from enforcing the 75% requirement because nobody with the Plat Committee or planning staff told him that he was required to have consent of 75% of the other property owners in Indian Hills Estates. This ignorance of the 75% requirement caused him to allow his third resubdivision application to lapse to his detriment. As a property owner, Counceller was deemed to have knowledge of the relevant zoning ordinances, and estoppel would only be appropriate if he had detrimentally relied on the governmental entity’s affirmative assertion or on its silence where there was a duty to speak. Since this was not shown in the record, the court held that estoppel was not appropriate here.

Counceller also made an argument that the Commission impermissibly abdicated its authority to approve or disapprove of plats within Columbus to his neighbors. However, the court found Section 225 did not give unrestricted power to Counceller’s neighbors, in that it provided applicants with a means to obtain a waiver to the 75% requirement. Here, so long as a person seeking to resubdivide could establish to the Commission’s satisfaction that the proposed change would not have a significant impact on the subdivision, a waiver could be obtained. Since Counceller did not request a waiver prior to or during the hearing on the appeal, the court held that Section 225 did not impermissibly abdicate the Commission’s authority to Counceller’s neighbors.

Counceller v City of Columbus Plan Commission, 2015 WL 4932676 (IN App. 8/19/2015)

The opinion can be accessed at:

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