Fifty Six LLC (“Landowner”) appealed from the trial court’s order granting summary judgment in favor of the Metropolitan Development Commission (the “MDC”). In 2009, local residents, schools, churches, businesses, and other institutions began a community effort to prevent divestment of a local retail area in Millersville. The efforts of members led to the creation of the Millersville at Fall Creek Valley Community Organization and the development of the Millersville comprehensive plan. On May 16, 2012, the MDC held a public hearing and voted on and approved Resolution No. 2012–CPS–R–001 which amended the Comprehensive Plan for Marion County by adopting the Millersville Plan. The Millersville Plan designated Landowner’s Parcel as being located in Critical Area # 4, established land use recommendations for the area and described Landowner’s Parcel using the Revised Description. On September 25, 2013, Landowner filed a motion for summary judgment on the basis that the MDC failed to establish township advisory committees as required by Ind.Code § 36–7–4–504.5 and Marion County Ordinance Section 231–401. Landowner further argued that the MDC did not provide the public with ten days notice of the entire plan, as required by Ind.Code § 36–7–4–507, when it admitted that the Millersville Plan, which was finalized on May 11, 2012, was not made available for public viewing until May 14, 2012, and was approved and adopted by the MDC at the May 16, 2012 public hearing less than ten days later.
Landowner’s Parcel was located in the area described as Critical Area # 4 in the Millersville Plan, and thus Landowner’s Parcel was directly affected by the Millersville Plan and its land-use recommendations. The comprehensive plan was one of several factors that determined future, binding land-use regulations. Thus, the court found that the Landowner had shown that Landowner’s Parcel was or would be directly impacted by the recommendations of the Millersville Plan. As such, it concluded that Landowner had standing to challenge the Millersville Plan.
Next, the court analyzed the text of Ind.Code § 36–7–4–504.5(a), which requires the formation of township advisory committees when “preparing or revising a comprehensive plan for a township” but does not include provisions requiring township advisory committees when a neighborhood or sub-area is the subject of a comprehensive plan. Although Millersville partially lies within both Lawrence and Washington Township, the evidence revealed that the Millersville Plan was not prepared as a revision to the existing comprehensive plans for either Lawrence or Washington Township. Furthermore, the process for adopting township comprehensive plans, including the formation of township advisory committees, was followed at the time comprehensive plans were adopted for those townships.
As to the notice requirement, the court found that although Landowner received a copy of the Revised Description on April 25, 2012, the final draft of the Millersville Plan was not available to the public until, at the earliest, May 11, 2012, was available on the City’s website on May 14, 2012, and was adopted on May 16, 2012, five days after publication of the final draft. Accordingly, the Millersville Plan did not comply with the requirement that the plan be published in its entirety ten days prior to a hearing pursuant to Ind.Code § 36–7–4–507. The trial court’s holding was therefore reversed.
Fifty Six LLC v Metropolitan Development Commission of Marion County, 38 NE 3d 726 (IN App. 10/7/2015)