Clem v. Christole, Inc.

a a mis authority sepa- ruling on motion for not to When Fisher did have the trial, court acts its discre the trial within Christopher Kathy. only al- rate Ind., tion. v. State Jenkins notify to available to him was ternative is seen a N.E.2d If a defendant 666. Kathy abusing was Chris- authorities handcuffs, being transported in juror while could take action to topher so that harm to the defendant must show actual failure to do so protect the child. Fisher’s has failed to warrant a reversal. Id. Fisher failing separate offense of constituted so demonstrate. report child for which he was to abuse Generally, defendant not be punished. His failure rightly convicted and jury in presented to the bonds or shackles insufficient, however, es- report was to to court, unless, in the discretion of the trial placed knowingly he tablish that Christo- pro- prevent escape, provide necessary to According- dangerous pher in a situation. tection others or maintain order. Smith described in the ly, Fisher’s conduct as Ind., v. State N.E.2d neglect did not constitute indictment case, juror in a present saw Fisher and, therefore, jury’s dependent verdict Nothing meeting chance on the elevator. stand. cannot deputy juror, was Fisher or the said supported by this conclusion is Our nothing in the transporting him. We see court’s recent decision Wilson v. State prejudiced by record to indicate Fisher was (1988), Ind.App., N.E.2d 619. In Wil- encounter it is reasonable such chance son, abused mother attacked her child’s juror expect a for a defendant to be dependent neglect for of a claim- conviction police custody being transported while knowingly place baby her ing she did Jenkins, (trial court supra the courtroom. dangerous upheld This court situation. motion mistrial when properly denied for the mother knew the conviction because hallway juror defendant handcuffed saw boyfriend using her live-in forceful courthouse). properly The trial court discipline less-than-eight- spanking refused Fisher’s motion for a mistrial. baby. The mother knew month-old also report Fisher's conviction failure boyfriend using to continue her intended child affirmed. abuse is His conviction disciplinary yet methods declined his neglect dependent reversed. disapproved invitation to move out she his actions. The mother was custodial SULLIVAN, JJ., ROBERTSON and baby parent legally remove the could concur. dangerous cre- from the known situation boyfriend, she by the refused to ated

do so. Wilson, the mother Fisher did

Unlike option removing have the Christo- dangerous from the situation created pher CLEM, al.; Judy Tim et M. abusing & James by Kathy. party Because Richards, al., Appellants et par- the case before us was custodial (Plaintiffs Below), ent, of action was to Fisher's course Accordingly, report the abuse. Fisher’s dependent neglect of a conviction INC.; Center, CHRISTOLE, Hopewell reversed. (Defendants Below). Inc., Appellees II ISSUE No. 53A04-8712-CV-393. Fisher asserts the trial also Indiana, Appeals Court of refusing grant request erred in his court Fourth District. preju claims he for a mistrial. Fisher Jan. juror eleva diced when rode on same being transport him tor with while he was

ed to the courthouse in handcuffs and

custody.

H81 Hill, Philip Blooming- Bunger, Len E. C. Clem, ton, appellants Judy Tim & et al. Withers, Anderson, for Michael R. James Richards, M. et al. Schnorr, Olvey, & 01-

Thomas N. Good Clendening, vey, Indianapolis, Gary J. Har- rell, Coyne, Bloomington, for Clendening & Christole, appellees Inc. Beal, Jr., Wayne, Fort

Ernest M. curiae. amicus Webb, Anderson, Hopewell Scott Center, Inc.

CONOVER, Judge. Plain- appeal.1 This is a consolidated tiffs-Appellants, property owners in Fair- Terrace subdivision Monroe Coun- wood Indiana, Manor ty, and Mustin subdivision Indiana, (Residents), County, in Madison grant summary appeal their trial courts’ Defendants-Appel- judgments in favor of Christole, (Christole) Hope- Inc. lees Center, (Hopewell) (collectively, Inc. well permit de- judgments developers). Those for devel- velopers operate group homes persons in the resi- opmentally disabled subdivi- single family residential dents’ sions.

We reverse. issues for present several

The residents one, name- we restate as our review which of a stat- the 1988 amendment ly, whether authorizing the location ute developmentally disabled homes for family single resi- mentally persons ill valid ret- dential constitutes subdivisions Inc., questions fact. Christole, of law and involve common 1. Clem v. No. 53A04-8712-CV- Court, Thus, Supe for con- appeal Monroe consolidated an from were ordered III, Hopewell No. and Richards Proce- appeal, rior court Ind. Rules of cf. sideration dure, here, Center, Inc., 5(B). No. 48A02-8906-CV-268 Appellate Rule II, Superior Court No. appeal Madison from annoy- may become an police pow- be or state’s exercise of the roactive neighbor- or nuisance to ance er. hood_ pur- 1988, developer Christole Before enjoined from The trial court Christole family residence in Fair- single chased a An in- violating applicable covenants. for use as a Terrace subdivision wood against Hopewell junction was not issued for the care of five unrelated group home agreement was reached be- because an disabled autistic children developmentally Hopewell provid- the residents tween part- thirteen full and supervised to be subject building would not be mod- ing the develop- All members. these time staff developmentally dis- ified to accommodate persons’ immediate fami- mentally disabled until the lawsuit was heard abled residents live elsewhere. lies on its merits. single Hopewell purchased Thereafter, session, its 1988 Manor subdivi- family residence in Mustin legislature amended I.C. 16-13-21- Indiana un- proposed to care for sion which section, created a new 16-13-21-14.- persons developmentally related disabled legislature’s 1988 amendment to 1. The supervised by full and also would be who 14 reads: Sec. The residents part-time staff members. (a) applies This section Sec. injunctive alleging relief petition filed a for reservation, condition, restriction, each cov- these homes violated restrictive is created exception, or covenant in their subdi- applicable to the lots enants any April subdivision before visions. of, deed, plat, or other instrument or Terrace assert The residents of Fairwood transfer, sale, lease, to, pertaining or group home violates the follow- Christole’s use of applicable to their ing restrictive covenants restriction, reservation, condition, (b) A subdivision: exception, covenant in a subdivision or thereof, any part building, No or USE: deed, of, plat, or other instrument or or maintained in this subdivi- erected sale, to, transfer, lease, pertaining or or com- sion shall be used for business permit property use of that would any purposes mercial kind ... prohibit residential use of (1) single family Only one BUILDINGS: the use of that as a residential dwelling may erected or maintained be developmentally facility for disabled or addition ... on each lot mentally persons: ill maintain The residents of Mustin Manor (2) persons re- ground that the Hopewell’s group facility house violates two of siding in the residential are not covenants, related; as restrictive their subdivision’s or follows: reason; (3) any TYPE.

1. LAND USE AND BUILDING is, prohibition, void to the extent of except resi- lot shall be used policy No against of the state. purposes. building No shall be dential already filed an Although Christole had altered, erected, placed permitted to remanded to appeal, we ordered the case lot, other than one de- remain on the trial court for further consideration family dwelling not to ex- single tached a matter of light these amendments as (2) height pri- and a ceed two stories considering the economy. After judicial than garage for not more vate attached 16-13-21-14, the to I.C. 1988 amendment building cars. No unattached to two judgment and court vacated its former trial dwelling permitted. No lot shall shall be summary judgment for Christole. entered replatted or subdivided. case, Hopewell filed In the Mustin Manor the residents a cross-motion

a motion and The trial court summary judgment. nox- No offensive or 5. NUISANCES. and denied the upon any granted.Hopewell’s motion activity carried on ious shall be It found under residents’ cross-motion. anything done thereon lot nor shall

H83 the covenants were void fundamental issue such cases is whether amended Sec. Christole, against public policy. In in question tendency the statute has a opined amendment of promote order, health, trial court the 1988 safety, either the 16-13- 1.C. 16-13-21-14 and new section general society. morals or welfare of holding in 21-14.12 were directed at the (1950), Bruck v. ex Money State rel. Properties, Imler Group Adult Ltd. v. 91 N.E.2d 349. Ind.App., 505 N.E.2d A every statute is accorded reasonable en longer stated the law. The trial court presumption supporting validity and con judgment summary tered for Christole. stitutionality. Ind., Miller v. State appeal. The residents 64, 71; Imler, supra, at 464. upon challenger The burden is to rebut I. The Police Power. Miller, presumption. supra. The power to en- The state has the inherent challenger’s clearly burden is to and con laws, limits, act constitutional which within vincingly demonstrate the unconstitutional health, order, promote safety, morals and ity of the statute. A question court cannot general society. welfare of Zahm v. desirability legislation the wisdom or 490, (1985), Ind.App., Peare 502 N.E.2d judgment opinion and substitute its or power This is known as the state’s 494. the matter legislature. for that of the Da police power. Legislation will be sustained (1981), gue Piper v. Corp. 275 Aircraft authority as within the 520, 207, Ind. 418 N.E.2d 212. When a proper it is a exercise thereof. v. Johnson may support statute be construed so as to (1980), Hospital, St. Inc. 273 Ind. Vincent constitutionality, adopt we must such a 585, 599; 374, Steup 404 N.E.2d v. Indiana Imler, supra, construction. at 464. (1980), Housing Authority Finance 273 Property II. Rights. Owners’ 72, 1220-1221. It has been said property rights While are not absolute police power recog- of a State by government be restricted ac nized the courts to be one of wide proper tion which constitutes a exercise of sweep. It is exercised state police power, Dept. Financial Institu health, promote safety, order to com- (1952), 293, tions v. Holt 231 Ind. fort, morals, public. and welfare of the 629, 633; Zahm, 494, N.E.2d N.E.2d at right power to exercise this is said to arbitrarily cannot taken or con people every inherent in the free guise police pow fiscated under the government. grant, It is not a derived Holt, 634; supra, er. 108 N.E.2d at any from or under written constitution. (1912), Heiney Town v. School Andrews not, however, limitation, It is without 1, 7, 628, Property 178 Ind. 98 N.E. 630. be invoked so cannot as to invade the object person than the more physical (Em- rights a citizen. acquire, fundamental owns. It includes the phasis supplied). possess, dispose it without use con (1896), 439, Holt, supra, 145 Ind. 44 trol or State Gerhardt diminution. 469, Therefore, any N.E. 473. See also Blue v. Beach N.E.2d at 634. law restrict 89, rights arbitrary, Al- un 155 Ind. 56 N.E. 92. must not be reasonable, though legislature’s prerogative beyond it is the the necessities of the or 634; Holt, police power supra, determine when the state’s case. 108 N.E.2d at invoked, Muncie, judiciary’s duty City should be it is the Muncie v. Pizza Hut specific Ind.App. to determine in cases whether the Inc. not, legislature may under police power upon has been invoked a sub- 737. The interests, Blue, im ject guise protecting public is subordinate to it. 56 the 92; Gerhardt, unnecessary upon lawful pose N.E. at N.E. at 473. The restrictions opinion against public policy express to the effective- 14.1voids as we New section 14.1, posture restrictions "created after all such covenantial ness of new section a factual April appeal Because this concerns 1988[.]" present in these cases. lawfully operative prior April covenants The Fifth Amend- Indiana Constitutions. occupations arbitrarily or interfere with Constitution, Holt, supra, 108 N.E.2d private rights. the United States ment to something harm- prohibits If the law by the Four- applicable made to the states arbitrary, less, purely is unreasonable Amendment, pertinent provides, teenth health, safety, promote the or does not part: society in welfare of morality, comfort or deprived any person ... be ... nor shall exercise general, it is an unauthorized life, liberty, property, or without due con- action police power. Id. Government law; private proper- nor shall process of exercise of proper stitutes use, just public without ty be taken general to the the collective benefit when compensation. imposed. outweighs the restraint of the Fourteenth The due clause Zahm, at 494. supra, 502 N.E.2d Amendment further states: 16-13-22-1 et contends I.C. Christole deprive any per- part, State seq., amended Sec. ... nor shall of which legislature’s determination that life, reflects the liberty, or without son of integrating, “mainstreaming”, the devel- law; process of ... due residential opmentally disabled into normal import, Indiana equal Constitution Of purpose surroundings important I, 21: provides, in Article provides qualified residents which property No man’s shall taken ... living independent homes a measure of nor, law, just compensation; without opposed to institution- traditional homes as State, except in case of the without such dependency. Hope- continued alization and compensation first assessed and ten- argues “impairment” whatever of the well rights constitutional dered. subdivision residents’ here, absolutely the same is is involved In Pulos v. James important state necessary to achieve this supreme court inter- our purpose. Enforcement of such covenants preted provisions to 'these constitutional effectively prevent the establish- i.e., private property, prohibit virtually any pri- ment of homes private rights granted by cove- subdivision housing in this state and vate subdivision nants, private Citing several Mas- use. grant- meaningless rights otherwise render approval, it sachusetts cases with said citizens, it concludes. ed our disabled are real es- ... covenants] [Restrictive Conversely, the claim amended They part parcel are of the tate. constitutionally-pro- 14 violates their Sec. which are attached and with land to against deprivation property right tected by conveyance.... they pass law, process impairs the without due beyond legislative power ... [I]t their rights contract vested them will, against property to take his proscribe covenants which subdivisions’ give it to another for what one and housing opera-

multi-family and commercial uses, though Further, deems even court in their subdivisions. tions taking is re- compensation Manor ar- full for the residents Mustin subdivision constitutes an gue merely the Sec. amendment quired. ... If the statute is attempt grant legislative invalid property individual own- the benefit of promoters special privilege group house ers, justify the tak- purpose does not generally, in public to the not available against will of right in land right their constitutional violation of the owner. against legislation. class Thus, Pulos, at 773-774. reverse, we we need discuss Because under the Con- property owner “is secure only one issue. keep what is his right stitution his Deprivation Property Rights III. pri- own, wants it for though another even in Covenants. said even ...” Id. Pulos also vate uses premised on benefit- legislation such rights are de- The residents’ good, still unconstitu- ting it was from the United States and rived both

H85 DeBruler, attempt property. to ble use of his Justice was made tional because court, compensate speaking owners: for the said It was ... owners’] [the prong The essence of the first the restrictive covenants benefit government right test is whether had the them imposed. Their to have were police power to exercise its in the manner may property right enforced is a did, regardless proper- of the burden to just compen- be taken from them without Or, words, ty owners. in other it asks Thus, if it maintained sation. even question: government regulated has of the restrictions was that the vacation where it should not have done If the so? public good, we would run afoul for the regulation does not bear a substantial sections 21 and 23 of Article of our sought relation to the ends state constitution and the due achieved, through either a failure of Amendment to clause of the Fourteenth the statute as a whole to serve those the Constitution United States. particular piece applied ends or as to a Id., 302 N.E.2d at 774.3 then the exercise of the comment, In a final the Pulos court dis- deemed to be unreasonable. prohibition of contracts which cussed the prong ... essence of second [T]he against public policy. The court con- government of the test is whether has may prohibit ceded the regulated greater to a extent than it However, legis- it concluded the contracts. have so that a should land owner has impair previously legal con- lature effectively deprived productive been rights granted tracts where the therein use of his also already have vested. Id. at 775. See Dept. v. Indiana Natural Resources Supreme Knights Council Catholic of Council, (1989),Ind., (1915),183 Ind. Coal Inc. Logsdon, America v. et al. 587, 592; Imler, 1000, 1002-1003, supra. citing 108 N.E. Nollan v. Calif. 825, 834, 483 U.S. Coastal Comm’n. cases, authority In such our on review is 97 L.Ed.2d S.Ct. clear: may look to the character and ... courts proper po A exercise of state’s reasonableness of the limitation for power general public, lice must benefit determining purpose of whether or not citizens. merely a small of its beyond scope necessary reaches for the police power The should not be used prevention. protection and guise of a small benefit Muncie, Inc., 357 N.E.2d at Pizza Hut public. Mun benefitting the Pizza Hut Department v. 737. See also Insurance Inc., cie, supra, N.E.2d at (1947),225 Ind. Schoonover Holt, at 637. supra, 108 N.E.2d 747; 202 Ind. Weisenberger State of the 175 N.E. 238. After careful consideration precedent, we have determined above Supreme Recently, our Indiana Court exercise of amended Sec. is not valid two-pronged used in laid down a test to be (a) vio police power state’s because it regula- determining whether a statute or Fifth and Fourteenth lates the residents’ taking under tion constitutes a the U.S. rights the U.S. Constitu Amendment under Fifth Amendment: whether Constitution’s I, tion, rights Article and their under (a) regulation substantially ad- or not the Constitution, (b) fails interest, (b) Indiana of the legitimate state vances test. economically prong the first of the Indiana Coal deprives the owner of the via- Thus, rely presented. on it in specifically there we refer to the term issues 3. Pulos does not However, cases, believing "police power.” it relies on the con- Pulos of these our resolution involving proper improper cepts exer- must be met the standards which sets forth police power. The determination of cise of police power attempted as an exercise of before legislature acted the consti- whether the outside private property is it relates to the proscriptions the exercise tutional which limit valid. power discussion of the of that is inherent its Amendment Violation. permitted permanently to station himself IV. Fifth premises. upon the Nollan, supra, progenitor In Coal, Nollan, Indiana wanted seacost landowners at 3145. S.Ct. permanent replace to to build home argued also the ease- The Commission cottage located on their land. Califor- part requested simply there one ment is- nia Coastal Commission conditioned comprehensive program provide of a permit upon to do so suance its public as continuous access the beach granting public Nollans’ an easement undergo development redevelop- the lots beach, pass locat- across their proposition, ment. answer to that public ed beaches. The Nol- between two Supreme Court said compensation there- lans were to receive no expression simply That for, ar- permit. The Commission inter- Commission’s belief requirement “taking” gued its was not a strip be est will served continuous Amendment, merely under the Fifth it was along publicly accessible beach use Nollans’ upon a restriction coast. Commission well i.e., property, of its exercise idea, right good that it is a but that power. that ar- rejected The Court (and not establish that Nollans gument, saying residents) compelled alone can coastal Perhaps point because is so ... Rather, to its realization. to contribute obvious, never we have been confronted “compre- is free to its California advance controversy required with a us wishes, by using if it program,” hensive it, upon analysis our rule but cases’ eminent domain for this governmental the effect of other action “public purpose,” see U.S. Const.Amdt. have leads to the same conclusion. We V; if it an easement across wants that, repeatedly re held pay for it. the Nollans’ must use, “the served its owner ‘one of the exclude Nollan, [others is] at 3150. S.Ct. most sticks essential bundle proposed Likewise here. Each commonly rights that are characterized permanent group house will be a structure ” Teleprompter Loretto v. property.’ developer in the where each subdivision Corp., 419, Manhattan CATV 458 U.S. them, proposes to no mere easement locate 3164, 3174, 73 868 102 S.Ct. L.Ed.2d Nollan, “permanent is involved. Under (1982), quoting Kaiser Aetna v. United by will a com physical occupation” occur States, 176, 383, 164, 444 U.S. 100 S.Ct. multi-per mercial structure which will be a In Loretto 391, (1979). 332 L.Ed.2d son, family Both single not residence. governmental we observed where these violate each conditions subdivision’s permanent physical action results “[a] Thus, Fifth covenants. residents’ occupation” by the rights Amendment would violated by others, government itself see occupation was to occur or continue such U.S., 9, S.Ct., at n. at 3174- 432-433 unabated. 3175, uniformly n. “our cases have Patently, “permanent occu- physical such the occu found to extent of substantially pation” is more than a mere pation, regard without to whether upon the use of the residents’ restriction important public action an bene achieves if the state was the mov- Even impact fit or has minimal economic here, party “pay for owner,” id., S.Ct., ing it would have 434-435, it”, as was the case Nollan. Because “permanent think at 3175-3176. We provision pay- for the statute makes no occurred, has physical occupation” ment, private parties cannot condemn rule, purposes of that where individuals property interests given permanent and' continuous owners, fro, 14 consti- amended Sec. pass the real to and so that traversed, po- continuously an exercise of the state’s property may tutes invalid Coal, Nollan, supra; Indiana particular power, though even individual lice Pulos, supra; supra, (1987), both as to the U.S. Ind.App., Ltd. v. Imler Constitution’s Fifth Amendment and the I will repeat 459. them If here.1 con- I, Indiana Article Constitution’s stitutional issues of significance Park Hensler appeal, Fountain Co. v. 199 this I find would that ease law Ind. 155 N.E. mandates that provision the retroactive (1) the statute: does not pro- violate due briefs were filed Amicus Christole cess; does .not unconstitutionally by Department case Indiana of Mental impair residents’ contracts it is because Community Health and Residential Facili- narrowly drawn exercise by ties Council Association police power. Indiana, Citizens of Retarded Inc. The De- I. Background partment’s an brief raises issue not raised herein, parties namely, whether re- Group Properties, In Adult majority cent amendments to the Federal Fair Hous- that, enacting held IND. CODE Act, seq. U.S.C. et have (which purported 16-13-21-14 to void re- preempted this field legisla- vis-a-vis state strictive covenants that permit “would tion. decline to address that be- We issue residential use prohibit (a) the cause issue was not raised that property use of as a facility residential (b) parties appeal, parties developmentally mentally disabled or ill opportunity have not been an afforded persons," but specific contained no retroac- brief it. application), tive not in- did tend to void restrictive covenants which pro- Reversed and remanded for further prohibit group homes on the basis ceedings opinion. consistent with this enterprises. were business addition, BUCHANAN, J., the majority, relying on concurs. Pulos v. James MILLER, J., with separate dissents interpret indicated that to the statute so as opinion. void covenants would be a violation MILLER, Judge, dissenting. I, of Article Sections 21 and 23 I dissent. Indiana Constitution and the due clause the Fourteenth Amendment unnecessary believe reach However, States United Constitution. issues, because, view, in my constitutional Group Properties Adult did not contain use, a group home is a not a residential extensive discussion of the constitutional use. business homes in this issue. case do violate the restrictive covenants respective contained in the Following Group deeds. There is decision Adult dispute type Properties, legislature both homes are the the amended I.C. building single family 16-13-21-14, dwelling permit- against to render void as § — — Further, by ted public policy existing the covenants. the uses restrictive covenants retroactive) (effectively making are residential and not the uses business the statute by prohibited the prohibit group covenants. The detailed which homes my expressed ground reasons for were a group conclusion that the home was busi- ness, related, in my Group Properties, dissent not or Adult the residents were for My position regard support position is not The novel. recent of this is found in Resi- Court, Supreme Barry- in Blevins Missouri Lawrence 407, v. Management Systems, dential Inc. v. Jefferson Mo., County Ass’n 707 S.W.2d County Ind.App., Plan Comm’n unnecessary it found to consider whether Ayers County Plan N.E.2d and Porter restrictive covenant which limited the use of (1989), Ind.App., 544 Comm'n N.E.2d property purposes single to residential or group where this court held that homes family dwellings pursuant double void to a "family” residential use and a within the defini- 16-13-21-14, statute § similar IND. CODE respective zoning the The tions in ordinances. proposed group because the home was a resi- zoning "family” ordinances defined as single dwelling family dential use located in a “living single housekeeping of individuals as also, type my of structure. See cases cited in enterprise. cry far commercial unit" —a from a Properties, Group supra. dissent in Adult More (The cove- legislature had vacated restrictive reason. also Commission any other prevented commercial use of nants which 16-13-21-14.1 which added IND. CODE § property the subdivision. The voided restrictive covenants prospectively who from the vacation of parties benefitted grounds on same as those found based owners wished to therefore, the covenants were who 16-13-21-14, does in I.C. § pur- for their commercial use here.) This amendment not us .concern supreme poses. Our court stated: (I.C. 16-13-21-14) destroys effectively § ap- primary Adult “The effect of the instant statute as basis for decision extinguish this plied did facts is to Group Properties these —that right affecting if land described not intend to void such covenants so exist in the petition en- far found to a business prohibited homes as public respondents, any nor “family” use terprise being a within or as not end, public merely clari- subserve of the covenants—and the definitions private land- However, legislative intent. fies the benefit of owners whose estates are less valuable Properties also majority Group in Adult right reason that, existence discussion indicated without extensive more advanta- and who could make construed to void such if statute were profitable their own geous and uses covenants, be unconstitutional. it would land these encombrances were out us. This is issue before expressly way. It has been found Here, majority concludes the statute that the enforcement of the restrictions the Fifth and Fourteenth Amend violates public in- injurious would ‘not be ments of the U.S. Constitution and Article finding accepted That terests.’ must be The 21 of the Indiana Constitution. § respon- as final and true. Each claim the statute violates residents also against is to forced his dents will the U.S. Constitution2 Article § right surrender his in the nature of an 1, 24 the Indiana Constitution and Article in the land of another easement when clauses—and is uncon 3 —the contract ‘inoperative, illegal is not or void’accord- stitutionally major in its terms. The broad He ing to the decision of the land court. ity these issues. Because discuss obliged will to make surrender of this that the statute is constitu would hold accept money dam- real estate tional, I will also discuss these issues. it, ages place not because demand- Challenge Due II. The Process interests, ed but because his aims. neighbor desires majority vio- holds that statute plain This is from the bald statement of process clauses the Fifth lates the due the facts.” Amendments and Article Fourteenth Constitution, relying Id., of the Indiana (emphasis original) N.E.2d Pulos, supra, Kimball, that the statute conclude quoting Sprague v. “taking” in a without results Mass. 100 N.E. just compensation. How- court then concluded:

due ever, inapplicable 'to the circum- Pulos is rights in the plaintiffs’ property Here contrary in this to more pur- stances case of Meadowviewhave been covenants portedly destroyed by decisions of the United States Su- de- recent taken and supreme court. the preme pursuant Court and our fendants to a statute of and of Indiana for the sole use State a supreme In Pulos our court held stat- defendants, i.e. of benefit the their use plan a metropolitan ute which authorized in land Meadowview for business their covenants commission to vacate restrictive purposes. than residential rather plans contained the recorded of subdi- Id., 774. 302 N.E.2d at it au- vision was unconstitutional because Clearly, concerned taking pri- the of for a the Pulos court was thorized “taking" purposes. County private for purpose. The Marion Plan with vate post impairing the impairing law law pass any 3. “No ex 2. State ... law "No shall ... facto ” passed.” obligation obligations contracts shall ever the of of contracts....

H89 assertion, Contrary majority’s purpose to the the directed at a broad health and problem. social taking not for case before us does involve a private purposes; it involves an exercise of addition, Congress recently has evi- general the the for welfare. denced a with problems similar concern Any by operators received benefits handicapped enacting citizens Housing Act, homes or Federal Fair Amendments seq., et U.S.C. which purely legit- homes are incidental outlaws dis- housing crimination in on based an individ- public purpose of the The imate act. mere handicap. ual’s may fact that statute benefit indi- unconstitutional, viduals render State has a interest if general purpose public its health nature. and welfare of handicapped citi- Steup zens. Housing v. Indiana Finance Au- cry This interest far is a from the Pulos, purely private thority (1980), Ind., concerns involved in supra. legisla- can There be no doubt that Finally, although language there is enacting ture in 16-13-21-14 I.C. was Pulos suggests that such a statute addressing an area broad concern. even if public purpose enacted for a Over- As supreme the Wisconsin court unconstitutional,4 language this is mere look Living Farms Alternative Services dicta, and is neither the most recent nor 143 Wis.2d N.W.2d explication most extensive of our su- (a dealing constitutionality case with the preme position court’s issue. 16-13-21-14) similar statute to I.C. § In Department Natural Resources v. stated: Council, Indiana Coal 542 N.E.2d at this, legislation Without such as the el- our supreme extensively court discussed derly, handicapped mentally retarded the meaning of within “taking” the context would be forced either live alone light the due clauses they sufficiently where cannot care for Supreme numerous Court’s decisions on themselves, unnecessarily or be instu- In Dep’t question. Natural Re- where, expert according tionalized tes- sources, (the acres of 6.57 a 305 acre farm timony, patients entire farm contained approximately 1.537 give up independence, they their coal) million desig- tons mineable subject regulations specific re- Department nated of Natural Re- quirements living in an institution (DNR) sources unsuitable surface home, nursing very like a become de- mining because the acres contained 6.57 pressed, stop eating, sometimes some- archaelogically area, “an significant rich in ill, they only times become from the deposits cultural with historic substantial wrong fact that are at the level of Id. at 1001. The and scientific value.” care, very not to mention that it’s ex- owner of the farm Indiana Coal pensive challenged to maintain in a Council the DNR’s someone nurs- action home, it. that it was an they don’t need basis unconstitutional legisla- We would be remiss to hold that

tion directed at ameliorating such supreme effects Our court in de- explained that significant legitimate public is not termining tak- whether an unconstitutional language is as follows: them enforce is just compensa- attempt uphold be taken if we from them without "Even should Thus, constitutionality upon provision question tion. even if it were maintained that premise that the commission vacation restrictions pub- to act authorized lic thereunder public good, we would run afoul of sections individuals, good to benefit not. 21 and of Article I of our state constitution 23 would, support. we nevertheless be without (supra) the due clause of the provision compensate No has been made to the Amendment to Constitution Fourteenth plat. those owners of other lots within the was for their benefit that the restrictive cove- It (supra).” States the United Pulos, 302 N.E.2d at 774. imposed. right nants Their to have 1190 segment that is not occurred, particular is affected applies a two the court has (1) legislation sub- alone, prop

prong test: Whether claimant’s considered The court est; stantially advances a be relation where regulation the statute did, regardless of the erty. is exercise The essence of the first question: has ends or as economically whether and Whether achieved, Or, to should explained: applied in other government police as a whole either viable legitimate not have done so? not bear government power in the manner to a legitimate it through use of words, it asks the burden deprives particular piece prong of the test had ends his serve to substantial state failure of sought to regulated an owner If the those inter- prop- to it Id., Loretto v. nent taking will almost tion which [Bituminous at 1244 ^[1232] erty 3164, and where [1987]. acter of CATV tis], 480 as 480 physical 73 at Corp., 458 U.S. a whole is U.S. at 488-489 n. the interference is also Of n. L.Ed.2d 868 U.S. 1248, 18, course, the nature and char is encumbered. regulation Teleprompter Manhattan Coal occupation 94 ^[470] 94 L.Ed.2d L.Ed.2d at 490 n. compared Ass’n v. DeBenedic invariably be found. at (1982). results 497, 419, 18, ^[472] to property, a 107 102 S.Ct. in Keystone 107 S.Ct. that relevant; perma at S.Ct. por 496 18; property, then the exercise at Id.

The economic unconstitutional because prong of the test has its roots in Justice In quiring that a certain amount of regarded left unmined so ern [v. Holmes’s decision that Mahon], L.Ed. ^[*] regulatory surface estate was struck down is deemed case, Pennsylvania 322 ^[*] 260 U.S. [1922], seed from which all as to inquiry of ^[*] Pennsylvania prevent cases have ^[*] unreasonable. 43 ^[*] statute re- subsidence interfered S.Ct. generally coal be grown. second mod- ^[*] Coal 158, the health this broad protecting capped citizens. In ly has a archaeological sites must the economic was not an unconstitutional state small and If government.” the State heritage through court legitimate the artifacts of the spectrum of “[p]rotecting then concluded the has a impact welfare Id. addition, interest legitimate at legitimate of its our preservation taking because comparatively the statute national and dead, living included interest protecting regulation interests it sure- handi- ex- here a substantial relation question with the distinct investment-backed bears pectations mineral sought of the owners In IND. to the ends to be achieved. provide compensation estate and did to 19 the CODE 16-13-21-1 coal was “taken.” This con- that statutory regu- has enacted a detailed for distinct investment-backed sideration “mainstreaming” latory handi- scheme today. remains essential expectations family capped into normal envi- individuals [Transportation Penn Central Co. ronments. I.C. 16-13-21-14 substan- 104, 124, York], New U.S. City Therefore, goal. tially to this related 2646, 2659, 631, 648 57 L.Ed.2d S.Ct. prong first statute does violate the States, [1978]; Kaiser Aetna v. United substantially re- legislation test. It is 444 U.S. S.Ct. state interest. lated (1979). neces- It is also L.Ed.2d test, prong of Turning to the second impact of examine the economic sary to necessary recognize that the eco- it is regulation on the claimant in terms must be such impact nomic land, the diminution value effectively has “a land owner been id., interference extent property.” productive use of his deprived of land, present use Penn with the important It at 1003. Id. 542 N.E.2d Central, at S.Ct. 438 U.S. recognize Dep’t Resources Natural determining 57 L.Ed.2d at 656. use of the value, a restriction degree involves of diminution

HQ1 exceptions general party’s property, virtually do all of pro- own the rule. The dealing against impairment the cases with this issue. See hibition of contracts City Penn not an Transportation Central Co. v. is absolute one. The contract (1978), 104, New 438 U.S. 98 S.Ct. clause either constitution York re- of 2646, 57 L.Ed.2d 6315 cases cited strict the exercise of the state’s majority’s health, Contrary protect therein. to the asser- the safe- tion, at a ty, Finerty the case bar does involve and welfare. v. State ex rel. 470, City Gary, restriction use residents’ School Ind. 213 permanent does it “a nor result 941. physical occupation” of their In Span Allied v. Structural Steele Co. The residents continue to use their (1978), 234, naus 438 U.S. 98 S.Ct. 57 property purposes. residential addi- Supreme L.Ed.2d the United States tion, circumstances in v. unlike-the Nollan two-step analysis Court established a (1987), U.S. Comm’n Coastal Calif. determining a whether statute violates the L.Ed.2d S.Ct. requires contract clause. The first step portion being occupied is of their determination of “whether state law (even temporarily) by homes. has, fact, operated as a im substantial governmental action far case is pairment of a relationship.” contractual Dep’t less than the action in intrusive impair Id. at 98 S.Ct. at 2722. If the use Natural Resources. The of the resi- is inquiry ment minimal the ends at this dent’s has not affected in the been point and the law is constitutional. How Therefore, slightest degree. is statute ever, found, impairment if substantial not an of property. unconstitutional step the court moves second which Impairment III. Contract —Retroac- involves examination of the nature and tive the Statute purpose of the statute. Id. S.Ct. Effect of at 2723. vio-

The residents also claim the statute I, lates the contract clauses Article step one, § applying necessary Before Ar- United States Constitution6 and applied to note standard to be when I, ticle 24 of the Constitution7 Indiana § considering constutionality of a statute. impairs because its retroactive effect presumed A to be statute constitutional provision their covenants. challenger and the has the burden rebut- v. ting presumption. Miller State Judge explained As Shields Wenke Ind., 517 N.E.2d 64. All reasonable City Indianapolis Ind.App., 429 in favor the stat- doubts resolved 295, 298. N.E.2d Therefore, constitutionality. ute’s Id. A retrospective application of a statute carry heavy order burden in to a entered into before ef- contract presumption constitutionality. rebut impair can fective date that statute Here, case, obligations contrary in the contractual to both Christole home presented by the United States and Indiana Constitu- evidence resi- 10; impair- they tions. Const. claim shows an U.S. Art. dents however, are, expectations, 1 24. There their Const. Art. ment of contract Central, integrity building outweighed 5.In Penn the owners of Grand tural of a Central profit. City sought expectation owners’ substantial Station in New York to erect that, legit- Again, 55-story building existing the state has office above the sta- observe objects, protecting building interest in inanimate tion. de- imate Permission to erect greater pro- necessarily City’s interest in pursuant must have nied to New York Landmarks needy, Law, living elderly, tecting and handi- building Preservation because would capped citizens. destroy the architectural aesthetic value of though the station. Court held even ..pass impair- State shall ... Law be- "No owners lose substantial revenue Obligation ing Contracts.” they building, cause could not erect the no tak- occurred, could had because continue law, post impairing gainfully use the The state's ex law station. interest "No facto passed.” maintaining obligation value shall ever be historical and architec- contracts opposing affidavits shall be made on Wednesday evenings that sev- evidence on parked knowledge, personal on the shall set en to thirteen cars were forth street, thereby evidence, adjoining property and the as would be admissable facts of increasing and the number cars traffic affirmatively that the and shall show af- responded parked Christole on the street. competent testify to the mat- is to fiant every meetings held were that staff added) (Emphasis Al- ters stated therein.” Wednesday evening, resulted in a which he is a li- though the affiant states that parked in the of cars maximum thirteen broker, has real taken classes censed estate is not unusual for that area. note appraisal, attended numerous seminars meetings (i.e., bridge to hold residents thou- appraisal9 on conducted several classes) clubs, study their homes Bible completely appraisals, the affidavit sand resulting in increase in traffic and a similar any that the affiant has train- fails show parked unpersuasive evidence is cars. This competence conducting studies or ing or and, best, impairment.8 a minimal shows impact analysis on the of kind in: Therefore, inquiry ends. Allied Struc- eluding type one of use in an area with a Steele, have supra. tural use, impact including different rebutting their burden of failed to meet surrounding property. on In homes presumption constitutionality. addition, no the affidavit contains facts However, case, Hopewell in the Center could from which the court determine presented in the the residents evidence merely validity of The affiant the studies. ap- a real estate form of an affidavit of through he checked states “has had stud- praiser, who he made two stated him, values, available to market sources on the impact ies on the homes marketing and made detailed studies time surrounding neighborhood specific place- of the before and after effects of Hopewell group study impact The court not ment of these facilities.” surrounding neighborhood, home on its informed of the nature the “sources presence had concluded him,” available nor of extent of his Hopewell group would reduce the home checking marketing market values surrounding property between value of shows, For the affidavit he could time. all 5%, proximity depending on 20% and properties five or hundreds have checked surrounding to the the individual homes addition, In court properties. evidentiary of this group home. The value know if he eliminated other variables questionable. affidavit might value which affect the of surround- simply The affiant has stat- ing property. reviewing grant summary When studies, opinion, supported by ed an which applies court the same stan judgment, this unsupported by any facts studies are Sharp the trial court. v. Indiana dard as validity would show either the stud- Ind. Insurance Co. Union Mutual competence ies his to conduct them and App., 237. Ind. of Proce or Rules 56(E) results.10 dure, “Supporting Trial states: evaluate the Rule allege that content of these seminars related evidence that the increased traf- There surveys. surrounding conducting impaired prop- fic value family erty. high I note that a with three expert opinions involving on 10. Two com cases school-age children “with wheels" would in- obsenity munity context of standards in the neighborhood, the traffic in the crease Albright prosecutions are instructive. not be a violation of covenants. (1986), Ind.App., 501 N.E.2d State expert an in the field of sexual court held that affiant states these seminars con- qualified dysfunction to be shown Society Appraisers by the Real Estate ducted community general testify expert stan as an (I Appraisers of Real Estate and the Institute Here, that he is the affiant has shown dards. competent referring he to the Insti- assume was American appraise specific but has Although Appraisers). he tute of Real Estate competent to conduct or he failed show seminars, he does states he has attended these analyze studies. organiza- not state that he is member these Further, Judge explained in Saliba designated by Shields them tions or has been (1985), Ind.App., appraiser survey analyst, 1187- expert v. State nor does he Interstate Auc- tory regulatory this court placed As stated and restrictions on tion, v. Insurance seq. Inc. National Central group by I.C. 16-13-21-1 homes et § Co. (1983), Ind.App., carefully operation 448 N.E.2d the control of considering summary a motion “a court and insure homes maintain in- judgment disregard See should inadmissible character. residential I.C. supporting oppos- contained in or case, formation In this 16-13-21-10. the ing affidavits.” This information was inad- outweighs any state im- resulting interest Therefore, and ignored. should be missible pairment rights. the of residents’ contract Farms, Hopewell in the case have supra See Overlook the residents (even though also failed to show more than minimal impairment there was substantial con- of of impairment their contract. tract, interest elderly state’s welfare of handicapped outweighed and residents’ con- However, even we were to consider the rights). tract opinion contained in the and were affidavit Overbreadth to consider evidence of im- IV. substantial contract, law pairment the is not Finally, argue the residents in- the finding A substantial unconstitutional. clusion of the words “for other reason” merely impairment requires a consideration in I.C. 16-13-21-14 render the statute nature purpose and of the statute. language unconstitutional because such Steele, supra. Allied Structural vague and The claim overbroad. in question legit- The statute advances these words allow homes addition, the imate state interest. In statu- violate restrictive covenants related to the 88, discussing surveys admissibility ology poll’s the the renders results admissible in opinion (public polls): expert opinion. form admissibility public opinion poll The of a de- Although inappli- of these criteria some primarily pends upon presence of circum- study, certainly cable kind of to this it must be guarantees stantial 1 J. trustworthiness. (1) compiled shown that: data was in ac- Moore, (1982). Moore's Federal 2.712 Practice standards; (2) generally accepted cordance with opinion designed polls surveys Public are gathered accurately reported; the data was popula- targeted the state elicit of mind of a (3) analyzed statistically the data was in a cor- (“universe") through tion an examination of Here, hampered rect manner. we are deter- representative portion (“sample”) of the uni- mining apply if the criteria do because we Through accepted analysis, verse. statistical type source not know the of or of data relied sample project opinion data is used to upon. short, targeted population. the entire In (1980), George In v. Duncan Moser Leather Co. guarantees the circumstantial of trustworthi- Ind.App., N.E.2d 408 this court discussed (1) premised generally are ness the use admissibility expert opinion testimony accepted surveying techniques conducting reports upon based not in evidence or are (2) poll statistically adherence cor- hearsay under inadmissible rule. The court conducting poll rect methods in and eval- explained: uating the results. (1) opinion In order to be admissible inquiry judicial This twofold has led to the expert expertise must have sufficient development of six foundational criteria reliability accuracy evaluate the generally scientifically accepted which necessary (2) report, report type must nor be of a and, reliability poll's to insure a reliable, (3) mally report must found consequently, admissibility. propo- type customarily upon by relied be of a poll establishing: of a has the nent (1) burden of expert practice profession of his poll expert was conducted in the State, (1972), expertise. supra Smith v. [ (2) surveying; field the relevant universe 275]; Capital Improve N.E.2d examined; (3) representative sample was Managers universe; v. (4) ment Board Public Service drawn from the relevant Commission, (1978), supra Ind.App. (mail, [ questioning mode was “correct” tele- 616]; Adoption interview, (5) In re 375 N.E.2d Lockmon personal etc.); phone, the sam- 793; dy Ind.App. questionnaire, ple, and the interview were de- Winski, supra v. Ind. Rosenbalm signed generally accepted [ in accordance with standards; (6) App. gathered 249]. the data accurate- reported; ly analyzed Id. at data was that, here, Moore, statistically upon I note the studies relied correct manner. J. su- 138; pra at accord Amax the affiant are in evidence and the affidavit Baumholser v. Coal Co., (7th Cir.1980). opinion that the 630 F.2d fails to show studies and based generally accepted these criteria. adherence method- on them meet allowed, or set lot size type of structure argument This merit- Marjorie

back restrictions. Marriage A. re In THOMAS, Appellant less. (Petitioner below), must so be construed A statute Miller, supra. render constitutional. Ayers County v. Porter Plan Commission THOMAS, Harry Appellee (a (1989), Ind.App., N.E.2d 213 case below). (Respondent involving authority’s right to re zoning No. 03A01-8902-CV-00034. excep quire special home to seek authority tion) zoning suggested we that Indiana, Appeals of Court of comply require group home with could First District. type requirements such as structural 22, 1990. Jan. (i.e., single family), or set building lot size 14, 1990. March Rehearing Denied requirements. back relating proper Restrictive covenants

ty zoning restrictions analogous are generally two

the sense that (1) proper on use of the

types: restrictions

ty; type of struc restrictions on “Zoning A. permitted. 101 C.J.S.

tures See Planning” that Land note 16-13-21-1, (I.C.

provisions statute concerning restrictive cove seq.)

et both zoning preclude the

nants and ordinances they are

exclusion of homes because

allegedly used as a business or because the This indicates are not related. concerned legislature with addition, on use. two

restrictions based (I.C. 16—13—

other sections of the statute 16-13-21-12) provide that

21-11.5 and § facility required residential

“[t]he requirements, zoning

to meet all ordi Reading the statute as

nances laws.” whole, did not is clear the restrictive covenants based

intend void permit requirements,

on structural nor ignore

group homes to laws and ordinances building respect to health codes and

with Ayers, supra.

restrictions. See There

fore, unnecessary it is to consider whether

such a law would be constitutional. 16-13-21-14

I would hold I.C. § the trial and would affirm

constitutional

courts.

Case Details

Case Name: Clem v. Christole, Inc.

Court Name: Indiana Court of Appeals

Date Published: Jan 17, 1990

Citation: 548 N.E.2d 1180

Docket Number: 53A04-8712-CV-393

Court Abbreviation: Ind. Ct. App.