ATTORNEY FOR APPELLANTS: ATTORNEY FOR APPELLEE:
MICHAEL L. MUENICH DAVID E. WICKLAND
Highland, Indiana Munster, Indiana
COURT OF APPEALS OF INDIANA
CHESTER BORSUK and LAKE COUNTY )
TRUST COMPANY, as Trustee Under Trust No. )
vs. ) No. 45A03-0305-CV-196
TOWN OF ST. JOHN, )
APPEAL FROM THE LAKE SUPERIOR COURT
The Honorable Diane Kavadias Schneider, Judge
Cause No. 45D01-0011-MI-33
December 18, 2003
Appellants-petitioners Chester Borsuk and the Lake County Trust Company, as Trustee Under Trust
Number 4346 (collectively, Borsuk) appeal the trial courts entry of summary judgment in
favor of the Town, the appellee-defendant in this case.
See footnote Borsuk avers that
the trial court erroneously admitted improper evidence at trial. Moreover, Borsuk claims
that the Towns refusal to rezone the land at issue was arbitrary, capricious,
and unreasonable.See footnote Concluding that the Towns decision was wholly contrary to its
own comprehensive plan and, thus, arbitrary and capricious, we reverse the judgment of
the trial court and remand with orders that the trial court recommit this
cause to the Town with instructions to rezone Borsuks parcel of land.
Borsuk owns a parcel of land (Lot 1) located at the intersection of
See footnote and U.S. 41 in the Town, which is located in
Lake County. The western half of Borsuks parcel is zoned for residential
use, while the eastern half is zoned for commercial use. The entire
block on which Borsuks land is situated is zoned for commercial use.
The following illustration, while not to scale, is helpful in visualizing the property
and its surrounding area:
Appellants App. p. 505.
Borsuk petitioned the St. John Plan Commission on September 13, 2000, to rezone
the entire parcel to a commercial designation. Fifty-two remonstrators signed a petition
opposing the rezoning request, asserting that traffic safety and congestion were particular concerns.
At a Plan Commission meeting held November 1, 2000, remonstrators testified that
traffic was too congested in the area already and that rezoning would exacerbate
traffic problems. Dr. Reg Manwaring, the principal of a local elementary school,
sent the Commission a letter stating that increased traffic could pose a physical
danger to his students. Bob Pharazyn, Director of Public Works for St.
John stated that had it not been for the safety aspects, [he] would
most likely [have] been in favor of rezoning. Appellants App. p. 741.
The Plan Commission entered findings of fact stating that rezoning would not
promote the health, safety, comfort, morals, convenience, and general welfare of the Town
and that Borsuks proposal would not conserve property values in the Town.
Furthermore, the Plan Commission recommended that Borsuks rezoning request be denied. The
Town Council adopted the Plan Commissions recommendation.
On November 30, 2000, Borsuk filed for a writ of certiorari, alleging that
the Town effected an unconstitutional taking and that the denial of Borsuks request
was arbitrary and capricious. Borsuk filed a motion for summary judgment on
March 4, 2002. On May 13, 2002, the Town responded and designated
its evidence in opposition to summary judgment, including a newly-filed affidavit of Charles
Sawyer, the President of the Plan Commission, which stated, in relevant part:
5. That the Plan Commission and the Town Council considered the residential
area nearby petitioners Lot 1 as well as the concerns of the residents
nearby with regard to public health and safety caused by traffic which would
likely be generated by a rezoning of petitioners entire parcel as commercial district.
. . .
11. [T]he Plan Commissions consideration of the deteriorating effect of petitioners commercial
use as well as truck and heavy automobile traffic would have on neighboring
residential homes was appropriate.
. . .
14. That the Plan Commission and Town Council decided petitioners re-zoning petition
should be denied because the increased commercial traffic flow would negatively affect the
public health, safety, morals, convenience, and general welfare of the Town of St.
Appellants App. p. 633-34. Borsuk moved to strike Sawyers affidavit on June
25, 2002, on the grounds that evidence outside of the Plan Commissions minutes
and records was not competent. On July 23, 2002, the Town filed
a second affidavit, that of engineer Kenneth J. Kraus, which read, in relevant
8. [P]ursuant to the terms of the Town of St. John Ordinance,
the petitioners can construct a 2200 square foot professional office building with a
sufficient number of parking spaces and storm water detention on that portion of
Lot 1 zoned B-3 Commercial to satisfy all aspects of the Town of
St. John Ordinances without the requirement of a variance, a re-zoning, or a
Appellants App. p. 593-94. Borsuk moved to strike the Kraus affidavit as
well because it was untimely and presented evidence outside of the Plan Commissions
minutes and records. The trial court never ruled on either motion to
By agreement of the parties, the trial court treated the proceedings as a
full review of the St. John Plan Commission and St. John Town Councils
decision denying Borsuks rezoning request.
See footnote Appellants Br. p. 27. On April
7, 2003, the trial court entered summary judgment for the Town. Borsuk
I. Standard of Review
We note that Borsuk has brought this challenge to the Towns decision to
deny his request to rezone Lot 1 as a request for a writ
of certiorari under Indiana Code section 36-7-4-1003. The trial court entered summary
judgment for the Town and against Borsuk, and Borsuk appealed to this court
under Indiana Code section 36-7-4-1011, which permits an appeal from the final judgment
of the court reversing, affirming, or modifying the decision of the board of
zoning appeals. When we review a petition for certiorari under Indiana Code
section 36-7-4-1011, we stand in the same position as did the trial court.
Reinking v. Metro. Bd. of Zoning Appeals of Marion County, 671 N.E.2d
137, 142 (Ind. Ct. App. 1996). We give due deference to
a zoning boards decision and will reverse only if the boards decision is
arbitrary, capricious or an abuse of discretion. Porter County Plan Commn v.
Burns Harbor Estates, 437 N.E.2d 1053, 1055 (Ind. Ct. App. 1982).
II. Trial Courts Reliance on Improper Summary Judgment Materials
Borsuk claims that the trial court admitted improper evidence at trial. Particularly,
Borsuk argues that two affidavits should have been stricken by the trial court.
Though the record provides sufficient evidence to determine that the Towns decision was
arbitrary and capricious without reference to whether the trial court erred when it
refused to strike the materials complained of by Borsuk, we address the issue
of the affidavits because such an error may occur at another time.
Borsuk argues that the Sawyer affidavit was an attempt to unlawfully supplement the
administrative record and that the Kraus affidavit was belatedly filed and constituted an
attempt to contradict statements made by the Plan Commission and the plain language
of the Towns zoning ordinance.
1. Sawyer Affidavit
Borsuk argues that Sawyers affidavit was erroneously admitted into evidence. Borsuks specific
complaint is that the Sawyer affidavit was an attempt to create evidence as
to what the Plan Commission considered and decided. Appellants Br. p. 20.
We first note that boards and commissions speak or act officially only through
the minutes and records made at duly organized meetings. Scott v. City
of Seymour, 659 N.E.2d 585, 590 (Ind. Ct. App. 1995). Evidence outside
of the boards minutes and records that the board presumed to act in
its official capacity is not competent evidence to substitute for the minutes and
records of regular board action. Id.
The Sawyer affidavit relates the Plan Commissions mental processes and considerations in deciding
whether to approve Borsuks request. Such matters are particularly suited to the
minutes and records of the board because boards and commissions speak or act
officially only through the minutes and records made at their meetings. Id.
Thus, the Sawyer affidavit was improper evidence and should have been stricken.
2. Kraus Affidavit
Borsuk contends that the Kraus affidavit was unlawfully admitted into evidence because it
was untimely and contradicted the administrative record. Borsuk also notes that the
affidavits contents are in conflict with statements made by the Plan Commission.
Leaving aside the question of timeliness, Borsuk is correct in his contention.
The Kraus affidavit purports to state that Borsuk can lawfully construct a 2200
square foot professional office building on half of his lot. Appellants App.
p. 593. The record, however, is to the contrary. The Towns
zoning ordinance states that only one primary structure is allowed on a lot,
and Borsuk already has a home on the lot. Appellants App. p.
148. Additionally, the following colloquy occurred between Commissioner Jerome Rudy and the
Towns attorney, David F. Wickland:
MR. WICKLAND: We have had for a long time the ordinance that
only allows one lot one structure.
MR. RUDY: One primary structure, but you can have like a secondary,
like a free standing garage with a house.
MR. WICKLAND: That would be one primary structure.
Appellants App. p. 797. Moreover, Commission President Charles Sawyer asked Michael I.
Muenich, Borsuks attorney, why Borsuk was contending that the parcel was worthless:III. Arbitrary and Capricious Decision
MR. MUENICH: You cant sell half the lot and build on it,
sir. Look at your zoning ordinance. There is a principle [sic]
structure allowed on each lot. There is already a principle structure on
MR. SAWYER: I understand that. I hear what youre saying and
youre probably absolutely right. . . . My personal opinion is that it
is a residential lot as long as that house is sitting there.
Appellants App. p. 792-93. The record clearly shows that the erection of
a commercial building would have been contrary to the zoning ordinance.
The trial court apparently relied on the Kraus affidavit when it entered its
findings of fact and conclusions of law, as it stated that Borsuk was
entitled to use the east half of Lot 1 for a reasonable and
viable commercial purpose. Appellants Br. p. 27. This statement, as discussed,
Borsuk claims that the Towns decision to deny his zoning request was arbitrary
and capricious and, thus, must be reversed. Specifically, Borsuk points out that
even though the Towns Comprehensive Plan indicated that the area where his property
was located was to be zoned for commercial use and that his property
was the only lot on the block that was restricted to non-commercial use,
the Town denied his application. Thus, Borsuk argues that the Town ignored
statutory authority when it denied his rezoning request.
We note that a decision is arbitrary and capricious when it is willful
and unreasonable, without consideration and in disregard of the facts or circumstances in
the case, or without some basis which would lead a reasonable and honest
person to the same conclusion. Dept of Natural Res. v. Indiana Coal
Council, 542 N.E.2d 1000, 1007 (Ind. 1989). To ascertain whether a decision
is arbitrary and capricious, we must determine whether the decision was based upon
substantial evidence. Crooked Creek Conservation and Gun Club, Inc. v. Hamilton County
North Bd. of Zoning Appeals, 677 N.E.2d 544, 547 (Ind. Ct. App. 1997).
Substantial evidence is such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion. Id. at 549.
The St. John Zoning Ordinance does not specify particular factors that must be
taken into account when rezoning land, Appellants App. p. 229, but instead references
the 600 Series, specifically Indiana Code section 36-7-4-600 through 616. Indiana Code
section 36-7-4-603 states:
In preparing and considering proposals under the 600 series, the plan commission and
the legislative body shall pay reasonable regard to:
(1) the comprehensive plan;
(2) current conditions
and the character of current structures and uses in each district;
(3) the most
desirable use for which the land in each district is adapted;
(4) the conservation
of property values throughout the jurisdiction; and
(5) responsible development and growth.
Borsuk argues that the Town ignored its own Comprehensive Plan map when it
refused his rezoning request because the map shows that the area where his
property is located is to be zoned for commercial use in the future.
Moreover, Borsuk contends that the Town disregarded the current conditions and the
character of the current uses in the area near his plot because all
the other parcels of land abutting U.S. 41 in the immediate area are
zoned for commercial use.
Borsuk is correct in his contention that the Comprehensive Plan map envisions the
area abutting U.S. 41 to be a commercial area, a fact that the
Town does not dispute. Appellants App. p. 498. Moreover, as both
parties agreed at oral argument, the parcels of land directly north of Borsuksindeed,
all the parcels on the block wherein his parcel lies and on the
block north of his propertyare all zoned commercial, and U.S. 41 is recognized
by the Comprehensive Plan as the only major arterial in St. John.
Appellants App. p. 479. The split zoning of Borsuks land prevents him,
however, from making commercial use of his land because only one primary structure
is allowed on a parcel, and a residence already exists on the western
half of Lot 1.
Thus, the Towns decision to refuse Borsuks rezoning request was not based on
such relevant evidence as a reasonable mind might accept as adequate to support
a conclusion. Crooked Creek Conservation and Gun Club, Inc., 677 N.E.2d at
549. The Comprehensive Plan unquestionably shows that the area abutting U.S. 41
is to be commercial. Moreover, Borsuks land is the only parcel on
the block zoned such that commercial development is impossible. The Town apparently
ignored at least these two statutory factors of Indiana Code section 36-7-4-603 when
it denied Borsuks request. In short, we must conclude that the Towns
decision was arbitrary and capricious.
To be fair, the Kraus affidavit stated that a 2200 square foot building
could be erected on Borsuks property. Appellants App. p. 593. Consequently,
the Town may not have considered its action to be unreasonable inasmuch as
the Kraus affidavits legal conclusion would have afforded Borsuk the opportunity to build
a commercial structure on his lot. Krauss advice was patently incorrect, however,
as the Towns zoning ordinance only allows one primary structure on a plot
of land. Appellants App. p. 148, 797.
In this unique situation, the Towns Comprehensive Plan called for the area to
be zoned commercial at some point in the future. Borsuks parcel was
the only plot of land on the entire block that was not zoned
in such a manner. In such a circumstance, the municipality mustabsent a
compelling reasoncomply with its comprehensive plans vision and rezone the area for commercial
use. Failure to do so would be equivalent to ignoring the provisions
of Indiana Code section 36-7-4-603 and, moreover, would render a comprehensive plan meaningless.
In sum, the Towns decision to deny Borsuks request was arbitrary and capricious
because it ignored two factors of Indiana Code section 36-7-4-603. Consequently, the
Towns decision must be reversed.
The judgment of the trial court is reversed, and we remand this cause
to the trial court with instructions that it remand this cause to the
Town with instructions to rezone
NAJAM, J., and MAY, J., concur.
Oral argument was heard in this case on December 3,
2003, at Indianapolis. We thank counsel for their preparation and able advocacy.
Footnote: Borsuk also argued that the Towns refusal to rezone his
land was tantamount to a constitutional taking. Because we reverse on other
grounds, we do not discuss this issue at length. However, we note
that a residence existed on the western half of Borsuks land. Appellants
App. p. 793. A residence is certainly an economically beneficial use, and,
thus, Borsuks challenge would fail.
See Lucas v. South Carolina Coastal Council,
505 U.S. 1003, 1014 (1992).
This street apparently changes its name to 109th Avenue at
a certain point west of U.S. 41.
Footnote: As indicated at oral argument, what exactly this statement meant