FLOYD COUNTY and Floyd County Plan Commission, Appellant-Defendant, v. CITY OF NEW ALBANY and New Albany City Plan Commission, Appellee-Plaintiff.
No. 22A05-1303-MI-139
Court of Appeals of Indiana.
Jan. 16, 2014.
Rehearing Denied April 9, 2014.
1 N.E.3d 207
Even assuming, as McKnight argues, that the State failed to disclose Rhymer‘s criminal history to trial counsel, to prevail on a Brady claim, a petitioner must demonstrate that the evidence in question was material to an issue at trial such that there is a reasonable probability that the outcome of the trial would have been different had thе evidence been disclosed to the defense. See id. Upon review, in light of all of the evidence presented at trial, the impeaching value of Rhymer‘s ten-year-old theft conviction was negligible, at best. See Carroll v. State, 740 N.E.2d 1225, 1230 (Ind.Ct.App.2000) (impeaching value of six-year-old misdemeanor conviction for false informing was negligible in light of all the evidence presented), trans. denied (2001); see also Reid v. State, 984 N.E.2d 1264, 1271-72 (Ind.Ct.App.2013) (impeaching value of twenty-four-year-old robbery conviction was negligible in light of independent evidence of guilt), trans. denied. Here, the jury was not exposed to someone portrayed as “a highly credible witness or an otherwise upstanding citizen.” See Carroll, 740 N.E.2d at 1230. On cross-examination, Rhymer admitted that she was serving as a cooperating source with police and participated in the controlled buy because she was “in trouble” and was trying to avoid possible criminal charges that would be brought against her. Trial Tr. at 104-05.
In addition to Rhymer‘s testimony, the State presented ample independent evidence of McKnight‘s guilt. The record demonstrates that Rhymer‘s testimony was cumulative of the testimony of several undercover officers as well as the audio recording of the controlled buy. Under the circumstances, McKnight has not demonstrated a reasonable probability that the outcome of his trial would have been different had trial counsel known about the theft conviction and attempted to impeach Rhymer with questions about that remote conviction. Accordingly, his Brady claim fails. In sum, McKnight has failed to convince us “that there is no way within the law that the court below could have reached the decision it did.” Wilkes, 984 N.E.2d at 1236. The post-conviction court‘s denial of McKnight‘s petition for post-conviction relief is affirmed.
Affirmed.
BAKER, J., and NAJAM, J., concur.
Richard R. Fox, Steven A. Gustafson, The Law Office of Richard R. Fox, New Albany, IN, Attorneys for Appellant.
C. Gregory Fifer, Applegate Fifer Pulliam LLC, Jeffersonville, IN, Attorney for Appellee.
ROBB, Judge.
Case Summary and Issues
The City of New Albany and the New Albany City Plan Commission (collectively, the “City“) sought a declaratory judgment regarding whether it or Floyd County and the Floyd County Plan Commission (collectively, the “County“) has zoning jurisdiction over an unincorporated area (the “fringe areа“) outside the City limits. The trial court granted summary judgment for the City. The County appeals, raising several issues for our review which we consolidate and restate as two: 1) whether the
Concluding the supplemental affidavit could be, and in fact was, considered by the trial court, and that as a matter of law, the County is not entitled to exercise jurisdiction over the fringe area, nor is it required to consent to the City‘s exercise of jurisdiction, we affirm.
Facts and Procedural History
From mid-1965 to 1967, the City and County jointly participated in an area plan commission. In 1968, the County opted out of the joint commission and adopted its own zoning ordinance, which stated that the zoning regulations therein were “made with regard to a comprehensive Master Plan now being made....” Appellant‘s Appendix at 44. A comprehensive plan1 was not adopted by the County until 2006, however.
Pursuant to statute, when adopting a comprehensive plan, a municipal plan commission may provide for the development of an unincorporated area up to two miles outside the corporate boundaries of the municipality. See
As mentioned above, the County adopted a comprehensive plan in 2006, and in 2012, the County Board of Commissioners adopted an ordinance purporting to amend the County‘s zoning map to terminate the City‘s zoning jurisdiction over the fringe area and instead include it within the County‘s jurisdiction. In response to the County ordinance, the City adopted a resolution in February 2013 which “asserts and reaffirms its exclusive territorial zoning jurisdiction over and within the Zoning Fringe Area,” which resolution was forwarded to the County and recorded. Appellant‘s App. at 230-33. The City also filed a petition for declaratory judgment seeking a declaration that the County ordinance was invalid as contrary to statute. On February 22, 2013, the City filed a motion for summary judgment. Shortly thereafter, the County filed a motion for summary judgment, designating evidence in support of its own motion and in opposition to the City‘s motion.3 A hearing was
15. At the summary judgment hearing, the County raised for the first time its assertion that the City‘s provision of municipal sanitary sewer service is insufficient to satisfy the provisions of
Ind. Code § 36-7-4-205(f) , pursuant to 1999 amendment, regarding the necessity of County consent unless the City is providing “municipal services” (pl.).16. On March 12, 2013, the City then filed a motion for leave to supplement its designated evidence with the affidavit of City Building Commissioner David Brewer demonstrating that the City was also providing building code inspection and enforcement services at all material times with the Zoning Fringe Area as of the date that the County adopted its ordinance purporting to revoke the City‘s jurisdiction over the Zoning Fringe Area.
17. The County has mоved to strike the Brewer affidavit as untimely, but has not designated any additional evidence that would refute the City‘s claim that it is also providing building code inspection and enforcement services within the Zoning Fringe Area.
18. The court grants the motion to strike the Brewer affidavit as untimely and not consistent with the agreement of the parties at the hearing.
19. There is no genuine issue of material fact that the City Plan Commission has filed notice with the County Recorder and the County Plan Commission of its exercise of territorial zoning jurisdiction over the Zoning Fringe Area as required by the provisions of
Ind. Code § 36-7-4-205(f) .20. There is no genuine issue of material fact that the City has been exercising zoning authority over the Zoning Fringe Area cоntinuously for forty (40) years.
21. The County‘s claim that the provisions of
Ind. Code § 36-7-4-205(e) enable the County to revoke or terminate the City‘s territorial jurisdiction over the Zoning Fringe Area would vitiate the clear provisions ofInd. Code § 36-7-4-205(f) . Statutes must be read in pari materia and in harmony with related statutes.22. The provisions of identified sections of the Indiana Code, both as currently enacted and previous statutes, evidence a clear legislative intent to allow municipalities within counties of a certain size to exercise zoning authority over land adjoin[ing] the municipal boundaries without first obtaining permission of the county executive body
where the municipality is also offering municipal services. 23. Municipal services are not defined in Title 36 of the Indiana Code or in case law. The offering of sanitary sewer services is not insignificant when considering the nature and extent of such a capital investment by a municipality. This court will not replace its judgment for that of the Indiana Legislature and limit the zoning authority that has been extended to a municipality by that branch of government by defining the quality and/or quantity of municipal services that must be provided before a municipality may exercise Fringe Zoning Area authority. The City is providing municipal services, if the nature and extent of those services are to be defined or limited, it is better done in the Indiana Legislature.
24. The City is accordingly entitled to the award of summary judgment as a matter of law based on the following:
- The City has, and continues to, exercise tеrritorial jurisdiction within the Zoning Fringe Area pursuant to the provisions of
Ind. Code § 36-7-4-205(a) and (f).- The County‘s consent to the City‘s exercise of such jurisdiction is not required as the City is providing municipal sanitary sewer service and building code inspection and enforcement services within the Zoning Fringe Area.
IT IS THEREFORE ORDERED ADJUDGED AND DECREED as follows:
- [County] Ordinance No. FCO 2012-IX adopted by the Board of Commissioners of the County on September 4, 2012, is hereby declared as void and of no effect to the extent it was intended to terminate or revoke the City‘s territorial zoning jurisdiction over the Zoning Fringe Area.
- The County and the County Plan Commission are ordered to revise the County comprehensive plan and zoning ordinance to reflect the City Plan Commission‘s decision to exercise territorial zoning jurisdiction within the entirety of the Zoning Fringe Area as required by the provisions of
Ind. Code § 36-7-4-205(f) within sixty (60) days following entry of this judgment.- It is further ordered that the County and the County Plan Commission are permanently enjoined from exercising, or attempting to exercise, territorial zoning jurisdiction within the Zoning Fringe Area, as such area may be amended from time-to-time by the City, for so long as (i) the delegation of statutory authority to the City in accordance with the provisions of
Ind. Code § 36-7-4-205(f) remains in effect, (ii) the population of Floyd County remains less than that established by the statute to require the County‘s consent, (iii) the City continues to provide municipal sanitary sewer service, building code inspection and enforcement services, and/or other municipal services within the Zoning Fringe Area, and (iv) the City Plan Commission continues to exercise territorial zoning jurisdiction over the Zoning Fringe Area.- The County‘s cross-motion for summary judgment is denied in its entirety.
Appellant‘s App. at 7-10 (citations omitted). The County now appeals the trial court‘s grant of summary judgment to the City; the City cross-appeals the trial court‘s grant of the County‘s motion to strike the supplemental affidavit they offered.
I. The City‘s Cross-Appeal: Supplemental Affidavit
We begin by addressing the City‘s cross-appeal, as the trial court‘s exclusion of the supplemental affidavit has bearing on the merits of the summary judgment itself.
In moving for leave to file the supplemental affidavit, the City contended that the County raised for the first time at the summary judgment hearing the necessity for the City to provide multiple municipal services to the fringe area. The trial court in its order also stated that the County raised the insufficiency of the City‘s provision of municipal services to the fringe area for the first time at the hearing. However, our review of the record shows that the County‘s designation of evidence and memorandum in opposition to the City‘s motion for summary judgment and its cross-motion for summary judgment is primarily addressed to its assertion that “the City does not provide municipal services to the fringe area.” Appellant‘s App. at 246. Moreover, the City‘s response to the County‘s motion for summary judgment asserts that the County has “seemingly abandon[ed] thе County‘s claim that the adoption of the County‘s comprehensive plan in 2006 vested it with authority pursuant to
Nonetheless, Trial Rule 56(E) provides that “[t]he court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits.” It is within the trial court‘s discretiоn to do so. See Tom-Wat, Inc. v. Fink, 741 N.E.2d 343, 347 (Ind. 2001). Although the County‘s argument was not sprung on the City at the hearing such that the City had no opportunity to respond, the timeline for summary judgment in this case was accelerated such that it had little opportunity to respond: a hearing was held just days after the County filed its cross-motion for summary judgment. Under these circumstances we would be inclined to say the trial court abused its discretion in striking the affidavit. Cf. Tannehill by Podgorski v. Reddy, 633 N.E.2d 318, 320 (Ind.Ct.App.1994) (noting that granting permission to file a supplemental affidavit is within the trial court‘s discretion and the trial court did not err in denying the plaintiff‘s in part because the plaintiff “had ample opportunity to have timely filed her affidavit ....“), trans. denied. Although the trial court‘s order states that the County‘s motion to strike the City‘s affidavit as untimеly is granted, the trial court also clearly relied on the content of that affidavit when it concluded in paragraph 24 of its order that the City was entitled to summary judgment in part because the County‘s consent was not required due to the City‘s provision of “municipal sanitary sewer service and building code inspection and enforcement services within the Zoning Fringe Area.” Appellant‘s App. at 9.5 Whether the
II. The County‘s Appeal: Summary Judgment
A. Standard of Review
Summary judgment is proper if the designated evidence shows there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Ind. Trial Rule 56(C); Dreaded, Inc. v. St. Paul Guardian Ins. Co., 904 N.E.2d 1267, 1269-70 (Ind.2009). We will affirm the trial court‘s grant of summary judgment if it is sustainable on any theory or basis in the record. Beck v. City of Evansville, 842 N.E.2d 856, 860 (Ind.Ct.App.2006), trans. denied. The fact that parties have filed cross-motions for summary judgment does not alter our standard of review. T-3 Martinsville, LLC v. U.S. Holding, LLC, 911 N.E.2d 100, 109 (Ind.Ct.App.2009), trans. denied. Questions of statutory construction are particularly appropriate for resolution by summary judgment, as they are pure questions of law. HDNet LLC v. N. Am. Boxing Council, 972 N.E.2d 920, 922 (Ind.Ct.App.2012), trans. denied. We review questions of law de novo and owe no deference to the trial court‘s legal conclusions. Id. The party appealing the grant of summary judgment has the burden of persuading this court on appeal that the trial court‘s ruling was improper. Bd. of Comm‘rs. of Hendricks Cnty. v. Town of Plainfield, 909 N.E.2d 480, 485-86 (Ind.Ct.App.2009).
B. Indiana Code section 36-7-4-205
The рarties agree about the underlying facts; they dispute only which section of
In 2011, the statute was amended to its current form, which states in relevant part:
(a) ADVISORY. A municipal plan commission shall adopt a comprehensive plan, as provided for under the 500 series of the advisory planning law, for the development of the municipality. For comprehensive plans adoptеd after July 1, 1999, if:
- the municipality provides municipal services to the contiguous unincorporated area; or
- the municipal plan commission obtains the approval of the county legislative body of each affected county;
the municipal plan commission may provide in the comprehensive plan for the development of the contiguous unincorporated area, designated by the commission, that is outside the corporate boundaries of the municipality, and that, in the judgment of the commission, bears reasonable relation to the development of the municipality. For purposes of this section, participation of a municipality in a fire protection territory established under IC 36-8-19 that includes unincorporated areas contiguous to the municipality may not be treated as providing municipal services to the contiguous unincorporated areas.
(b) ADVISORY. Except as limited by the boundaries of unincorporated areas subject to the jurisdiction of other municipal plan commissions, an area designated under this section may include any part of the contiguous unincorporated area within two (2) miles from the corporate boundaries of the municipality....
(c) ADVISORY. Before exercising their rights, powers, and duties of the advisory planning law with respect to an area designated under this section, а municipal plan commission must file, with the recorder of the county in which the municipality is located, a description or map defining the limits of that area. If the commission revises the limits, it shall file, with the recorder, a revised description or map defining those revised limits.
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(e) ADVISORY. If the legislative body of a county adopts a comprehensive plan and ordinance covering the unincorporated areas of the county, a municipal plan commission may not exercise jurisdiction, as provided in this section, over any part of that unincorporated area unless it is authorized by ordinance of the legislative body of the county. This ordinance may be initiated by the cоunty legislative body or by petition duly signed and presented to the county auditor by:
- not less than fifty (50) property owners residing in the area involved in the petition;
- the county plan commission; or
- the municipal plan commission.
Before final action on the ordinance by the county legislative body, the county plan commission must hold an advertised public hearing as required for other actions of the county plan commission under the advisory planning law. Upon the passage of the ordinance by the county legislative body and the subsequent acceptance of jurisdiction by the municipal plan commission, the municipal plan commission shall exercise the same rights, powers, and duties conferred in this section exclusively with respect to thе contiguous unincorporated area. The jurisdiction of a municipal plan commission, as authorized under
this subsection, may be terminated by ordinance at the discretion of the legislative body of the county, but only if the county has adopted a comprehensive plan for that area that is as comprehensive in scope and subject matter as that in effect by municipal ordinance. (f) ADVISORY. Each municipal plan commission in a municipality located in a county having:
- a population of less than ninety-five thousand (95,000); and
- a county plan commission that has adopted, in accord with the advisory planning law, a comprehensive plan and ordinance covering the unincorporated areas of the county;
may, at any time, after filing notice with the county recorder and the county plan commission, exercise or reject territorial jurisdiction over any part of the area within two (2) miles of the corporate boundaries of that municipality and within that county, whether or not that commission has previously exercised that jurisdiction, if the municipality is providing municipal services to the area. Within sixty (60) days after receipt of that notice, the county plan commission and the county legislative body shall have the county comprehensive plan and ordinance revised to reflect the decision of the municipаl plan commission exercising the option provided for in this subsection. If the municipality is not providing municipal services to the area, the municipal plan commission must obtain the approval of the county legislative body of each affected county before exercising jurisdiction.
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“The first step in interpreting a statute is to determine whether the Legislature has spoken clearly and unambiguously on the point in question.” City of Carmel v. Steele, 865 N.E.2d 612, 618 (Ind.2007). When a statute is clear and unambiguous, we need not apply any rules of construction other than to require that words and phrases be taken in their plain, ordinary, and usual sense. Id. Clear and unambiguous statutes leave no room for judicial construction. Id. However, when a statute is susceptible to more than one interpretation it is deemed ambiguous and, thus, open to judicial construction. Id. When faced with an ambiguous statute, we apply other well-established rules of statutory construction. Id. One such rule is that our primary goal is to determine, give effect to, and implement the intent of the Legislature. Id. To effectuate legislative intent, we read the sections of an act together in order that no part is rendered meaningless if it can be harmonized with the remainder of the statute. Id. A statute should be examined as a whole, avoiding excessive reliance upon a strict literal meaning or the selective reading of individual words. Mayes v. Second Injury Fund, 888 N.E.2d 773, 776 (Ind.2008). We presume that the legislature intended for the statutory language to be applied in a logical manner consistent with the statute‘s underlying policy and goals. Id.
The City contends that subsection (f) applies in this situation because Floyd County has fewer than 95,000 residents as shown by the 2010 census and the City has elected to exercise jurisdiction in the fringe area and has given notice to the County. The County contends that subsection (e) applies because the County has now adopted a comprehensive plan and has adopted an ordinance to terminate the city‘s jurisdiction over the fringe area.
In Bd. of Comm‘rs. of Howard Cnty. v. Kokomo City Plan Comm‘n, 263 Ind. 282, 330 N.E.2d 92 (1975), our supreme court considered a constitutional challenge to the vеrsion of the statute that first established
[It] places cities in two categories and provides two different procedures for a city‘s assumption of extra-territorial planning and zoning authority. In the first category are all cities located in counties in which there exists no county master plan and those cities in counties having a county master plan but having less than 84,000 population. In the second category are those cities located in counties having more than 84,000 population and a county master plan. A city in the first category is vested with sole discretion to decide whether it will exercise such extraterritorial authority. In the second category, a city may not exercise authority outside its boundaries unless approved by ordinance of the county.
Id. at 291, 330 N.E.2d at 98 (emphasis added) (citation omitted). Although the statute has been amended since this case was decided, the amendments have not altered this basic structure: cities are still placed in two categories: 1) those cities located in counties having a county comprehensive plan covering the fringe area and population less than 95,000 (subsection f), and 2) those cities located in counties having a county comprehensive plan covering the fringe area and, although unstated, population more than 95,000 (subsection e).6 The County‘s position, that the “statute says, very simply, that once the legislative body of a county adopts a comprehensive plan and ordinance covering the unincorporated areas of the county, a municipal plan commission simply may not continue to exercise jurisdiction over the fringe unless it is authorized to do so by a county ordinance[,]” Brief of the Appellant at 22, fails to take into account the two-category structure of the statute and would render subsection (f) meaningless, because the existence of a county comprehensive plan is a part of both subsections (e) and (f), making the population classification the differentiating factor. We agree with the trial court that the County‘s position is untenable, and because Floyd County has fewer than 95,000 residents, subsection (f) is the applicable section in this case.
The County also contends that, if subsection (f) is the applicable section, County approval is still required because the City “is not providing municipal services to the area...”
As the trial court noted, “municipal services” as a term is not defined by the statute or by caselaw. We begin by acknowledging that section
[c]ommon usage in the English language does not scrupulously observe a discrete difference betwеen singular and plural word forms, especially when speaking in the abstract, not referring to identified subjects or objects, as in legislation prescribing a general rule for future application. In recognition of this, it is well established, by statute as well as by judicial decision, that legislative terms which are singular in form may apply to multiple subjects or objects and those which are plural in form may apply to single subjects or objects if that is the intended or reasonably understood meaning and effect.
Id. at 49 n. 3 (Young, J., dissenting) (quoting Sutherland, Statutes and Statutory Construction § 47.34 (Sands 4th ed. (1973)). However, other statutes within the Indiana Code specifically provide that “[t]he singular number includes the plural and the plural number includes the singular.”
Other than setting forth the basic proposition that more than one municipal service must be provided by a city by its use of the plural in sеction 36-7-4-205, the legislature has not indicated the nature, kind, or extent of municipal services it intended a city to provide in order to dispense with county approval of its exercise of jurisdiction over a fringe area. The County directs us to the annexation statutes found in Title 36 which describe two categories of services that an annexing municipality must make a commitment to provide to the annexed area: “noncapital” services, including police protection, fire protection, and street and road maintenance, and services of a “capital improvement nature,” including street construction, street lighting, sewer facilities, water facilities, аnd stormwater drainage facilities.
We can say, though, that the legislature has set a minimum standard for the exercise of extraterritorial jurisdiction by requiring a city to provide “municipal services,” plural. But it has not set a specific standard by requiring the provision of all or of certain municipal services. The County asks this court to set a standard beyond that clearly set in the statute itself, and that is a job reserved to the legislature. The City has been providing sanitary sewer services in the fringe area for decades. That is clearly the largest and most substantial of the services provided to the fringe area by the City, but the evidence in the record and considered by the trial court shows that the City is also providing building code inspection and enforcement services. The County asserts that by adding the requirement that a city provide municipal services, the legislature‘s intent was to ensure that a municipality has a stake in the fringe area over which it purports to exercise jurisdiction. The provision of sanitary sewer services in this case accomplishes that intent because it is, as the trial court noted, not insignificant due to the capital investment the City has made in offering those services outside its municipal boundaries. We conclude the City meets the requirements of section
Conclusion
The City‘s supplemental affidavit was properly considered by the trial court and is therefore before this court, as well, in considering the summary judgment motions. Because the County has a population of less than 95,000,
Affirmed.
RILEY, J., and KIRSCH, J., concur.