Pinnacle Media, LLC, has asked us to reconsider our opinion, Metro. Dev. Comm'n of Marion County v. Pinnacle Media, LLC,
We start by saying that both Pinnacle and amici read our opinion as constituting a dramatic change in land use law. It does not.
This case had its genesis in Pinnacle's, plan to erect billboards in interstate highway rights-of-way in Marion County. Because thosе rights-of-way are owned by the State, Pinnacle applied to the state highway department for permits. These applications were filed on April 19, 2000. At the time the applications were filed, Marion County did not require billboard location permits for billboards erected in interstate highway rights-of-way, but it began formal considerаtion of an ordinance to that effect on April 26, 2000, and enacted the ordinance on July 10, 2000. Eleven months later, on June 18, 2001, the State approved Pinnacle's applications for 10 billboards.
Pinnacle offered our decision in Knutson v. State ex rel. Seberger,
The key principle at stake in this case-the principal point debated in the parties' briefs in the Court of Appeals-is that changes in zoning ordinances are subject to аny vested rights in the property. This principle is of constitutional dimension, as our original opinion makes clear, and we reaffirm it here. As noted, Knutson said that a zoning оrdinance could not be enacted with retroactive effect depriving a property owner of the right to a building permit in accordance with a zoning ordinance in effect at the time of the application for the permit. Id. This is certainly so where a property owner has vested rights in the property, but Knutson suggеsted something more, namely, that the mere filing of a building permit was enough to create vested rights in the first place. We only overruled Knutson 's "suggestion that having a building permit оn file creates a vested right that cannot be overcome by a change in zoning law." Pinnacle Media, LLC,
In the first two sections of its Petition for Rehearing, Pinnacle argues that our original opinion's treatment of Knutson was incorrect and should be reversed. We will return to Knutson in a moment when we consider the amici brief. But our decision that Pinnacle was required to comply with the Marion County ordinance stands on grounds independent of our holding with respect to Knutson. "Regardless of EKnutson's viability, we do not believe its rule is available to Pinnacle in this case." Id.
Simply put, we held that the Marion County ordinance was in effect 11 months before Pinnacle began construction, and so Pinnacle was subject to it. Id. at 429. While recognizing that local zoning ordinances can require billboard location permits along state highways, Br. of Appellee at 6 n. 6, Pinnacle had argued that in this case its filing for State permits immunized it from the City's zoning change. We rejected that contention on a number of grounds in our original opinion, Pinnacle Mediа, LLC,
We now turn to the amici brief. It does not argue for Pinnacle's billboards. "Ami-ci do not care whether the signs that Pinnacle has built stay or go." Amici Curiae Br. in Support of Appellee's Pet. for Reh'g at 6. Rather, it makes two basic points. First, it takes issue with our holding with respect to Knutson:
In short, the "mere filing" for a permit as characterized by the Court is far from "mere." It invokes the expenditure of a tremendous amount of time, effort and money; however, as amiсi read the opinion of the Court, the property owner is not safe, even though he has spent a tremendous amount of money, time and effort. He is at the whim of thе legislative or administrative body until such time as he actually starts construction.
Id. at 5 (citation omitted).
Respectfully, we believe the amici brief does not read our opinion correctly. Again, our opinion held only that Knut-son's "suggestion that having a building permit on file creates a vested right that cannot be overcome by a change in zoning law is ovеrruled." Pinnacle Media, LLC,
The second point made by the amici brief is that our decision allows "one governmental agency, whether locаl, state or federal, ... the authority to hold the developer hostage until such time as a new ordinance or new regulation can be enacted by another governmental ageney which prohibits the development that the developer intends to construct." Amici Curiae Br. in Support of Appellee's Pet. for Relh'g at 6. The amici brief illustrates this concern with a lengthy narrative (2-1/2 pages of the 9-page brief) about local opposition to a Wal-Mart store in Crown Point, Indiana. We make three brief points in response. First, we do not believe that our original opinion stands for the proposition that one governmental agency may hold a developer hostage for the benefit of another. As noted above, Pinnacle made no such assertion that that is what happened in this casе until its petition for rehearing. Second, it is not clear to us which governmental agency is holding the Crown Point Wal-Mart developer hostage for the benefit of another. Third, although both amici and Pinnacle itself seem to contend that our original opinion will make it more difficult to develop Wal-Marts (id. at 7-9; Pet. for Reh'g at 3-4), we can only say that our opinion stands for the proposition that changes in zoning ordinances are subject to any vested rights. To the extent that a Wal-Mart developer-or any other property owner-possesses vested rights in property, those rights will be protected, as the Constitution demands.
Notes
. Recently Pinnacle submitted to us legislation enacted by the 2006 General Assembly, PL. 49-2006, that it asks we apply in this Contrary to Pinnacle's contention, we Case. see nothing in the legislation evidencing intent on the part of the Legislature that it have retroactive effect.