City of Bloomington v. Cheryl Underwood
995 N.E.2d 640
Ind. Ct. App.2013Background
- Underwood owns rental property on East 8th Street in Bloomington, with two efficiencies, one one-bedroom, and two three-bedroom units.
- In 2006 the Planning Commission repealed and replaced Title 20, changing nearby property zoning from RM7 to Institutional, effective Feb 12, 2007.
- Underwood received no individualized notice of the rezoning, only publication notice, while other affected owners reportedly did not receive notice.
- Because Institutional zoning generally prohibits multifamily dwellings, the property became a lawful nonconforming use, with limitations on intensification per BMC §20.08.050.
- Underwood remodeled the three-bedroom units in 2010, allegedly creating two five-bedroom units, without obtaining a new occupancy permit or approval.
- In May 2011 the City sued Underwood for violations of BMC Titles 20 and 16; the trial court later granted summary judgment for Underwood, finding rezoning invalid for lack of proper notice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether summary judgment was proper on Title 20 zoning violation | City contends Underwood unlawfully expanded a nonconforming use by remodeling. | Underwood argues lack of proper notice invalidated the rezoning and precludes enforcement. | Yes; summary judgment for Underwood because notice invalidated rezoning. |
| Whether summary judgment was proper on Title 16 occupancy permit | Underwood violated Title 16 by housing tenants without a valid permit post-remodel. | Underwood maintains permit remained valid or remodeling did not void it; no post-remodel inspection required. | No reversible error; record insufficient to show error; judgment for Underwood affirmed. |
Key Cases Cited
- City of Carmel v. Steele, 865 N.E.2d 612 (Ind. 2007) (statutory interpretation guiding due notice in zoning)
- Scalambrino v. Town of Michiana Shores, 904 N.E.2d 673 (Ind. Ct. App. 2009) (notice by publication plus mailed notice to nearby owners)
- Bd. of Zoning Appeals, Bloomington v. Leisz, 702 N.E.2d 1026 (Ind. 1998) (notice to rental property owners under housing ordinance)
- Rush v. Elkhart Cnty. Plan Comm’n, 698 N.E.2d 1211 (Ind. Ct. App. 1998) (rezoning is a legislative process requiring due process)
- Hills v. Area Plan Comm’n of Vermillion County, 416 N.E.2d 456 (Ind. Ct. App. 1981) (rezoning procedures and due process boundaries)
- Scalambrino (repeated note), 904 N.E.2d 673 (Ind. Ct. App. 2009) (see above)
- Gray v. D&G, Inc., 938 N.E.2d 259 (Ind. Ct. App. 2010) (statutory construction principles for interpreting statutes)