*1 Ratner, Trustee, et al. et al. v. of Richmond Rehearing July 13, 20,100. denied Filed 1965. [No. January 12, September 23, 1964. Transfer denied 1965.] Cadick, Burns, Neighbours Floyd Duck & W. Burns, Griffis, Tripp Indianapolis, & Griffis George Tripp, H. appellants. Harlan,
Harlan, Keller, Schussler & Denver C. Har- Ian, city McDaniel, attorney, Marlin K. all of Rich- appellees. mond for Appellants, by complaint, their amended
Kelley, J. *2 enjoin seek to the enforcement an ordinance No. City 1972—1962 of the which amends the Zoning Master Plan city, Ordinance of that rezones property described by appel- real estate and owned the lees F. Scott, Scott, Andrew Martha H. and Ruth E. Scott, “A” from and Suburban Residential to General provide Business in order to for the construction of a shopping new center.
Appellees complaint demurred the amended to on the ground it that does not state facts sufficient to con- sup- stitute a cause of action. One reason advanced in port demurrer is that the amended alleges rights appellants civil which will be violated the enforcement of al- leged invalid ordinance. The court sustained de- Judgment appellants plead murrer and refused to over. appellants nothing by followed that take action. their In order invoke the to deter ordinance, something validity mine the of an more allegation invalidity than mere appear. ordinance It must first be must asserted right that or civil of the com- some plainant will be infracted. complaint, pertinent substance,
The involved al- leges developing that a new “individuals” interested shopping petitioned the common council of center for an of the Master Plan of Richmond amendment Zoning property in or- Ordinance to rezone the Scott shopping provide for the construction of the cen- der to ; petition Plan was referred Commis- ter that the gave held a notice and
sion; Plan Commission that the others, re- hearing appellants and public represented and were counsel monstrators, were present offer opportunity evidence and given full under argument; took the matter the Commission February 26, until decision deferred its advisement and requested petition 1963; proponents of ad- February 26, 1963 on and no be heard ditional time to “rehearing” given; on that date was public notice of the appeared on said for the “remonstrators” counsel “rehearing” objected by written motion date and improper notice, ground which motion on the Complaint made consider. refused to Commission meeting, February nine of the eleven at the present were and voted five of the Commission members which, proposed amendment in favor of the to four alleged, authorize official ac- were insufficient *3 provisions of under the tion of the Commission §53- requiring Replacement action a Burns’ of of the members the Commission. alleged the Commission made no further It is through findings secretary or determinations but its City of vote to the Coun- communicated the result said consisting latter, members, of nine cil and the at meeting Monday March, 1963, of on the third voted its adopt proposed six three to “recommended” to amendment; if the vote the Commission be rejection amendment, then treated a the ordi- as provisions §53-765, nance is void since under the three-quarters Replacement, Burns’ vote required members of the Council was override the recommendation of the adverse Commission. paragraphs The two rhetorical of the amended com- concerning plaint appellants’ subject in interest mat- forth, clarity, verba, in haec ter are set to-wit: bring of them- “(8) action behalf Plaintiffs operators of and busi- all owners selves and other properties downtown- business and nesses business Indiana, the owners area of vicinity of the down- immediate real estate in the Richmond, Indiana, and town business section operators of and busi- and businesses the owners ness U. existing Shopping properties Center similarly Road, Highway 40 and S. Garwood constituting situated and a class too numerous specifically. Ratner, B. name Plaintiff Albert lying Trustee, is the owner of the real estate property and east the Scott across Garwood 40, Highway prop- Road and south of U. S. erty Shop- zoned for and utilized as business is ping businesses located in operators Center. The and owners Shopping are said Center lessees of Plaintiff Ratner. B. Rat- Plaintiff Albert ner, Trustee, and said have invested sub- lessees money Shopping stantial sums of in said Center developing estate, and in The real same. said the to leases interests incident there- business rights. property constitute Plaintiff valuable operator Brouse of a Rinehart the owner and property commercial business located in the down- town business section of the Richmond money has substantial sums of invested therein and est has a inter- substantial and valuable therein preservation normal expansion of There said downtown business section. are sit- numerous downtown merchants business similarly uated Rinehart, includ- Plaintiff Birck, Plaintiff Al the owner who is also operator of a commercial business business in said downtown business section. In addition, Plaintiff Al Birck is the owner properties area residence located in the immediately adjoining the downtown business section of of said resi- Richmond. value . properties dence are enhanced reflect and *4 properties’ elements of to down- said nearness said availability shopping town mal for nor- area and their expansion area commercial and business plaintiffs of the The named of Richmond. and. represented' the other them members the class taxpayers City of Richmond and such are integrity preservation and in the an interest
have Zoning Ordinance and Plan Master said made thereto in amendments interested with law.” in accordance “(28) shopping commer- If center other such prop- on the Scott are constructed cial businesses erty existing Shopping the road from the across presently legally property zoned and on Center though illegally, purportedly, zoned residence but business, alleged, would for an center, the area around the as above there result over-development shopping and concentration of creating congestion and traffic confusion existing Shopping Center and bringing about vacant and retail distressed store locations the downtown Richmond business sec- tion, damaging all of will be which detrimental and property to the downtown in- values and business damaging terests and detrimental and business ex- values interests isting Shopping Center, properties and such as the interests of the named all Plaintiffs others similarly addition, persons situated. In thus such subjected illegal competition would be in- to terference with their established businesses result- ing illegal zoning from herein alleged. great All of the above will be irreparable damage of Plaintiffs and for which they adequate remedy pro- have no law for property rights they tection of their no have remedy proceeding by other than this preserve integrity Plan Zon- of the said Master prevent Ordinance and amendment thereof through illegal pro- and unauthorized action ceedings.” radiantly clear that this fails to state equity. invoke facts sufficient allege Appellants right, title, or in or interest any part of be re- the real estate intended to Consequently, zoned. involved amendment controversy taking does not constitute a property. their
583 alleged damage injury sought by only or be problematical, appellants may resultant and be termed adversely is, will be that their business interests that futuro, affected and interfered with in as result competition overdevelopment concen- and that an congestion shopping and con- tration of centers with existing shopping by fusion “around the center” owned appellant, Ratner, Trustee, (emphasis B. Albert as Further, shop- supplied), result. that this additional ping overdevelopment shopping center and the bring centers will about vacant and retail distressed of Richmond. store locations the business section allegation, however, appellants, any There or is no that them, own, lease, possess any or the retail stores they say which will be or In distressed made vacant. short, injury they claim of their is that would be “subjected illegal competition and interference with shopping their if established businesses” the new center permitted. alleged support is No are facts which charge competition “illegal”. that would be There allegations appellants, any them, pos- are no or purchased rights sess franchise or licensed infringed unlawfully by objected will be violated or amending authorizing shopping ordinance new center. “Lawful interference with business as a result enjoined competition economic law cannot be an unauthorized act which does .......and right may enjoined infringe not on another’s be not merely person will enable a third to enter because it Injunctions, S., competition with other.” C. J. into pages 8a, notes 47 and on §13
686. alleged appellant, Birck, owns a resi- It is adjoining the downtown business sec- dence in an area value thereof is enhanced of Richmond that the tion business section to said downtown nearness its expansion of the busi- availability for normal “their” way manner in what of Richmond. But area ness appellant residence of said the value pro- lessened, depreciated, or affected damaged, posed shopping is left undisclosed. center ap alleged amended also taxpayers have an interest pellants, *6 “integrity preservation” of Mas- the in the Zoning the amend- Ordinance and in ter Plan with made “in accordance ments thereto Zoning “interest”, however, in Master law.” Such the not sufficient amendments thereto is Ordinance and the power standing of the itself, alone, to invoke the enjoin operation of the amend- court alleged exist, exist, There or be ordinance. must right allegedly will be vio- civil some or a ordinance statement lated the enforcement great irreparable showing circumstances injury complainant the enforce- will to the result E., Injunction, §75, 40 *7 Appellate Court has to determine this readily opinion apparent case. In the main it is that question injunctive turns on the relief my question principal pre- which in belief not is sented either at the trial court or at this level. In the majority opinion me the main and it seems to that principal question opin- been and has evaded general upon ion is based rule of law that there must alleged right property exist or be to exist some allegedly will be violated enforcement of the ordi- gen- nance and while this a correct statement of the is law, my opinion eral rule of nevertheless it is appellants (plaintiffs below) a cause of stated action complaint with- least sufficient
in amended their a demurrer filed thereto. stand complainant opinion “The main It is stated af- ordinance will must enforcement show that rights, property personal and fect his injury, irreparable and personal, him cause direct way in merely indefinite he not suffers some generally.” further stated people is common with complaint radiantly fails to “it clear that this therein is jurisdiction of state to invoke the facts sufficient con- consequently involved in this . .. the amendment taking troversy of their does not constitute sought injury damage property ...” and “The alleged by may appellants be resultant termed be problematical...” fol- as
The summarized amended bring plaintiffs (appellants) in be- this action lows: of businesses half of owners themselves other properties the owners in downtown business vicinity of the downtown immediate of real estate in the operators of busi- section, owners and the business existing shopping properties in the and business nesses trustee, Appellant Ratner, the owner center. property. The lying of the Scott real to the east estate as a and utilized property for business Ratner is zoned operators of busi- shopping The owners and center. existing shopping are lessees center in the nesses have invested sub- and his lessees Ratner. latter existing shopping center money stantial sums estate, real developing The Ratner the same. incident thereto con- leases, interests and the business rights. Appellant Rinehart stitute valuable operator commercial business the owner and sums Richmond and has substantial in downtown property in- a valuable money and has invested therein *8 preservation ex- and normal and in the terest therein Appellant pansion of section. said downtown business addition he Birek and in has interest similar properties in the area located is the owner of residence adjoining of Richmond. The downtown business section en- properties of reflect and value said residence properties’ of nearness hanced the elements said availability the downtown business and their section expansion for normal commercial and business Appellants citizens sim- area and other of Richmond. ilarly taxpayers and have an are Richmond situated preservation Mas- integrity interest in and Zoning ter in amend- Plan Ordinance and interested being with law. made in accordance ments thereto proposed shopping If commercial center or other property there businesses are constructed on the Scott overdevelopment and concentration result an creating congestion shopping and con- centers traffic existing shopping fusion in cen- the area around the bringing ter retail about vacant and store distressed in Richmond business section locations the downtown damaging and interests in the exist- values properties shopping inter- center such as similarly appellants In ad- ests of situated. others subjected illegal zoning dition, appellants would be question. All real the above will estate plaintiffs irreparable damage great adequate remedy at they law. have stating “It is also continues alleged appellants, amended taxpayers ‘in- an interest in the have Zoning tegrity preservation’ Master Plan Ordinance amendments made thereto however, Such ‘interest’ ‘in accordance with law.’ Zoning the amendments thereto Master Ordinance and *9 standing alone, itself, of to invoke the not sufficient equity enjoin operation power of the court alleged amending exist, There must or be ordinance. right allegedly exist, property or civil some by or will be violated the enforcement the ordinance showing great a that a statement circumstances irreparable injury complainant by will result to the Citing support 16 enforcement thereof.” thereof 54; E., Injunction, §75, 41, page I. L. 40 and *10 Athletic Club of The Columbian case E. 914 es- (1895), 143 40 N. ex McMahan Ind. rel. en- equity principle intervene to tablished the join That case therefore of a crime. the commission injunctive strong argument a for would state seem if, as in that case relief under the facts in instant enjoin crime it case, equity of a the commission equity may be declare that would reasonable to seem importuned enjoin and enforcement the execution provisions or ordinance. would of an invalid void opinion majority upholding court the trial seem the ruling judicially decreed the in its demurrer has on the judicial ap- impotency equity and further has embracing proval encompassing and decreed that equity In Columbian constricted. arms of shall be case, supra, page 102, State there Athletic Club v. compelling appears pertinent statement accred- a ited to Lord Chancellor as follows: Cottenham duty “That it of the courts ... is ‘adapt as practice proceeding, far its and course of as existing society, possible, to the state and to which,
apply its to all those new cases progress daily making in from the the affairs arise, men, continually from must and not too strict an adherence to forms and rules established under very justice, circumstances, different decline to administer rights and to enforce which there ” remedy.’ other upon worthy This rule commented of one ablest, judges admin- best ever wisest chancery England istered the law of or America. There- I am of fore trial court erred sustaining complaint. demurrer to the dissent,
As was stated at the outset of this it would principal question seem upon turns the in- validity zoning of an amendment ordinance and persuasive meaning issue in this case involves the pertinent statutory provisions. certain §53-719,
In Replacement, Burns’ we find the following language: majority “A No action of quorum. of members shall constitute a official, however, the commission is by majority
unless authorized a of the commission » appellants’ provision It is the contention that this re- quired (6) vote authorization of at least six (11) eleven member Commission. argue
Appellees, however, provision seem that the “majority majority” means a “a of a *11 quorum”. question presented simply If the this: requires approval to be official an
Commission’s action (6) (11) of the eleven six members member Com- clearly Appellate mission, then the Court would not have jur- cause to determine this but rather the Supreme isdiction would reside Court Indi- pursuant §4-214, 1946 Replacement, ana Burns’ Clause thereof. #1 of this writer the
In view statute means the the (5) (4) against favor four of five vote the amending would result in one of ordinance two alterna- tives, that was: either
(1) report no official action of the Plan Com- mission, in which event the Common Council City power of Richmond had no under adopt amending ordinance;
the statute the (2) report, that such an was adverse action and in which event the Common Council of the power adopt of Richmond had no the amend- (6) ordinance a vote of six in favor (3) against, and three such not 75% (that [7]) seven the members required by Council as statute. §53-765, Replacement, Burns’ 1951 provides part as follows: report of Plan “In the event the Commission is proposed it, to a ordinance adverse referred to passed except by ordinance shall not an af- seventy-five (75) per
firmative vote of least city centum of the members council.” wording quoted Thus the above sections mani- legislative majority a a fests intent mem- bers of the Commission must concur action in Contrariwise, order majority that it be official. if a concur, the members do not then there can be no of- ficial action. presumed Legislature also be was in
possession knowledge that, provision absent contrary, approval common law rule is that present, quorum existing, of the members binding is sufficient for official action. This is an ele- mentary principle McQuil- politic. the law of bodies lin, Officers, Employees, Meetings, §13.27, Council
592 1949). Leg- seq., p. (3d when Ed. Therefore et employ word “however” as a word islature chose qualification could have ref- or this reservation majority section, “A first erence to the sentence shall, quorum,” constitute a and there- of the members meaning. qualified by expressly that sentence its “However” is defined:
“(1. degree: manner, way, In whatever or whatever versatively ad- means to whatever extent —used NEVERTHELESS, ... 2: NOTWITH- STANDING, YET, STILL —often used to indicate something a sion after consideration after conceded or a deci- reservation points . . .” adverse Dictionary, Un- Webster’s Third New International 1961). abridged, p. (14th Ed. readily apparent of “how- It seems that the use Legislature ever” the declared an alternative intention. appellants question in their brief asked the “what meaning of word 'how- is the the sentence qualifies?” agree I ever’ with their statement quorum required idea of a that when the number persons body, are of a ma- assembled as the votes binding jority are for a Hence thereof sufficient action. Legislature using it would seem the word qualified “however” intended that sentence be made, not, a reservation could in such usage, reasonably intend otherwise. cannot in- import §53-719, supra, ferred that the “quorum” majority of a was intended as a condition precedent “quorum” official action when the word used, Legislature was not but instead the chose to use the word “Commission”. composed The Commission is (11) members, of eleven logically therefore it should be (11) concluded that eleven members constitute the Com- mission. purview pertaining of our Indiana
In the statutes zoning ordinances, amendments, modifications changes indispensable thereto, it is that a statutorily of a the members constituted full commis- *13 necessary sion to constitute an official action said Commission. appears any further that before action the Com-
mon procedures Council be taken that all of the fully under strictly enumerated the statutes must be complied general with. legis- rule seems to be that enabling government adopt lation local of units to zon- providing ordinances and for amendments and modi- may only fications thereto be authorized under the ex- police power ercise of the of the State. Therefore all stéps power grant taken under authority said of clearly must grant. conform to the of terms the In other powers granted words the extent of the as well as the manner of their provi- exercise conform must sions of any the statutes involved. Thus amendment plan zoning a master pursuant to, ordinance must be and in conformity with, enabling substantial the stat- authorizing it, ute statutory and all of provisions the governing zoning the conduct the of- commission’s action, including ficial present number members required number adoption members for the plan of a thereto, strictly amendment must be complied McQuillin, Municipal with. Corporations, Zoning, (8d 1958) McQuillin, §25.58 Edition Mu- nicipal Corporations, Zoning, (3d Edition §25.243 1958). import §53-719, supra,
The clear is that while a majority of quorum, members shall constitute a nevertheless no action the Commission is un- official by majority less authorized Commission, e., i. (6) six or more. Thus the instant case the record
affirmatively demonstrates, appellees indeed deny, only (5) do not members of the Commission five approved plan amendment master four (A) disapproved. (6) Thereafter six members City the Common Council of the of Richmond voted favorably thereon, seventy-five whereas per (75%) cent Council would have been necessary adopt report pursuant an adverse to §53- 765, supra, my clearly opinion all of which in dem- invalidity onstrates of the amendment ordi- nance. summarizing
In dissent, my it is that: (1) appears here, Where as it from the record invalidity of the amendment to the ordinance has been demonstrably pleaded, shown and this court in af- its ruling firmance the trial court’s on the- demurrer has by equity erected a barricade which cannot breached *14 guard against the execution and enforcement of its provisions. Appellate invalid If juris- Court has appeal diction of this I am then the trial reversed; court erred and should (2) However, importuned since has been enjoin the enforcement an invalid and void amend- zoning ordinance, my ment to it is belief that validity controlling issue, of the amendment is the there- Supreme fore Indiana Court has supra. appeal §4-214, under foregoing reasons, I For all of the am in dissent majority opinion. with the Reported in N. E. 2d 49. Note. — 16 notes ment thereof. I. L. 54; Indianapolis page Association et 41, Market 356, Indianapolis (1934), al. Ind. al. v. et 207 (1932), 754; Males, Mayor 203 192 v. Elbert Ind. N. E. 193; §190, Jur., Injunctions, 512, Am. 180 N. E. 28 page 694. complainant that enforcement The must show rights, personal or affect ordinance will his direct, personal, him will cause and that merely irreparable injury, he and not suf way peo common with indefinite fers some §191, page Jur., Injunctions, 696. ple generally. Am. 28 (1926), Grange v. Benton Massachusetts State the enforcement L. Ed. 387. When U. S. require expenditure pub- ordinance will invalid money, taxpayer may lie an action to en- maintain join enforcement, has no such but not where statute prejudicial complainant a tax- force effect as Injunctions, §191, payer. Jur., 28 Am. notes 17 18, page complaint 697. The amended at hand contains allegations complained the enforcement of the require expenditure public of ordinance funds money appellants paid by nor that of the tax taxpayers subject is or will be involved matter of the ordinance. opinion challenged In our amended justify Wayne fails to state facts sufficient Cir- equitable jurisdiction cuit Court to exercise its grant prayed injunctive relief. judgment appealed from is affirmed. Pfaff, JJ., Mote and concur. Hunter, J., C. dissents with to follow. Dissenting Opinion. respectfully C. J. I dissent from the main Hunter, opinion in I cause for reason do not believe
Notes
notes Indianapolis Market Association et In al. v. dianapolis (1934), 754; 356, et al. 192 207 Ind. N. E. Males, Mayor (1932), 203 v. Elbert Ind. 180 N. E. 193; Jur., Injunctions, §190, page Am. 694. It is further therein stated that: complainant “The must show that enforcement personal prop- of the ordinance will affect his or erty rights, personal, and that it will cause him di- rect, irreparable injury, merely and not way he suffers in some indefinite in common with people generally.” Jur., Injunctions, §191, 28 Am. p. 696. significant equity may upon It is be called provide changing relief in new and circumstances. 12 Equity, §3, page 269, provides: E., I. L. precedents. precedents absence of “Absence presents juris- obstacle to exercise of the equity, of a diction court to the award of proper case, distinguishing relief in a it equity jurisdiction apply feature of will settled rules to unusual conditions and mold its equity parties. to do between the decrees so as Such justified applying a well feel court itself a recognized principle under circumstances where it . applied seems never to have been before.” Supreme in Dood “As stated Court v. Reese, 1940, equity ‘the of a court depend upon does not the mere accident court having previous case, in some at some distant time granted If it relief under circumstances. similar grown so, equity and de- would not have were ” veloped/ “equity E., Equity, §81, page 287, L. I. states: Equity remedy. wrong be without not suffer a acting, at time specially, upon such acts will insist in- inconvenience as will afford relief with the least regards jury page 288, sub- to others. And at disregard mere “Equity will stance rather than form. right de- permit to be forms, substantial and will not interposition merely tech- nominal feated (my emphasis). nical distinctions.” v. State