Attorney for Appellants Attorneys for Appellee
Michael L. Muenich David M. Austgen
Highland, Indiana Michael J. Phillips
Carri N. Crider
Crown Point, Indiana
Attorney for Amici Curiae
Robert W. Eherenman
Fort Wayne, Indiana
Appeal from the Lake Superior Court, No. 45D01-0011-MI-33
The Honorable Diane Kavadias Schneider, Judge
On Petition to Transfer from the Indiana Court of Appeals, No. 45A03-0305-CV-196
January 4, 2005
On September 13, 2000, Borsuk petitioned the St. John Plan Commission to rezone
the entire parcel for commercial use with intentions of building a gas station
on the whole parcel. Fifty-two remonstrators filed a petition with the Plan
Commission to oppose the rezoning. At the commissions public meeting, the remonstrators
testified about existing traffic congestion in the area and expressed concerns that rezoning
would aggravate the situation. The remonstrators also feared that rezoning would compromise
the safety of the residents of nearby residentially-zoned property and of the students
of a local elementary school. They favored road construction to fix the
traffic problem before any new commercial development. The local Comprehensive Plan does
envision commercial zoning of the entire parcel at some point in the future.
Moreover, every lot on Borsuks block is zoned commercial except for the
residential half of Borsuks lot.
The Plan Commissions findings of fact stated that rezoning would not promote the
public health, safety, comfort, morals, convenience, and general welfare of the Town and
that the proposal would not conserve property values. The Town Council adopted
the Plan Commissions recommendation and denied the rezoning.
Borsuk filed a Petition for Writ of Certiorari in Lake Superior Court alleging
that the Towns denial effected an unconstitutional taking and was arbitrary and capricious.
Borsuk moved for summary judgment, and the trial court treated the ensuing
proceedings as a full review of the St. John Plan Commission and St.
John Town Councils decision. (Appellants App. at 24). On April 9,
2003, the court entered judgment for the Town.
The Court of Appeals reversed, with instructions that the trial court order the
Town to rezone the parcel.
Borsuk, 800 N.E.2d at 223. It
[T]he Towns Comprehensive Plan called for the area to be zoned commercial at some point in the future. Borsuks parcel was the only plot of land on the entire block that was not zoned in such a manner. In such a circumstance, the municipality must -- absent a compelling reason -- comply with its comprehensive plans vision and rezone the area for commercial use. Failure to do so would be equivalent to ignoring the provisions of Indiana Code section 36-7-4-603 and, moreover, would render a comprehensive plan meaningless.
Id. We granted transfer and now affirm the trial court.
A comprehensive plan must contain at least the following elements: (1) A
statement of objectives for the future development of the jurisdiction. (2) A statement
of policy for the land use development of the jurisdiction. (3) A statement
of policy for the development of public ways, public places, public lands, public
structures, and public utilities.
Ind. Code Ann. § 36-7-4-502 (West 1997).
A comprehensive plan is a general, long-term blueprint used as a guiding and
predictive force in the physical development of a community. Charles M. Haar,
In Accordance With a Comprehensive Plan, 68 Harv. L. Rev. 1154, 1155 (1955).
Social, economic, and physical conditions in a community all influence the creation
of a comprehensive plans goals and the means to be used in achieving
these goals. Id.
The benefits of comprehensive plans are numerous. Comprehensive plans play a central
role in zoning inasmuch as they rationally allocate land use with due consideration
given to the community as a whole.
Udell v. Haas, 235 N.E.2d
897, 900-01 (N.Y. 1968). Such plans help shape the identity of communities
and give private property owners notice of this identity and expectations for the
future. See Donna J. Patalano, Police Power and the Public Trust:
Prescriptive Zoning Through the Conflation of Two Ancient Doctrines, 28 B.C. Envtl. Aff.
L. Rev. 683, 697-98 (2001). The scope and perspective offered by
comprehensive plans help alleviate the potential inefficiencies in the development of communities caused
by the focused activities of different local agencies that do not coordinate with
one another. Haar, 68 Harv. L. Rev. at 1155.
The Indiana Code requires that the plan commission and the legislative body pay
reasonable regard to the comprehensive plan in preparing and considering proposals to adopt
initial zoning ordinances and amendments. Ind. Code Ann.
§§ 36-7-4-602, 603 (West
1997). These bodies must also consider current structures and uses in each
district, the most desirable use for the land, property values, and responsible growth
and development. Id.
A comprehensive plan is a communitys long-range vision for physical development, but implementing
the plan as regards a given piece of real estate may not be
the best course of action for the community on a given day.
A comprehensive plan is a guide to community development rather than an instrument
of land-use control.
See 4 Kenneth H. Young, Andersons American Law of Zoning,
§ 23.15 (4th ed. 1996); Ogden v. Premier Properties, USA, Inc., 755 N.E.2d
661, 671 (Ind. Ct. App. 2001) (deviation from the plan, standing alone, does
not establish arbitrary action, especially in light of other evidence before the city
Thus, Indiana Code § 36-7-4-603 sensibly states that the plan commission and legislative
body shall pay reasonable regard to a number of enumerated factors: (1)
the comprehensive plan; (2) current conditions and the character of current structures and
uses in each district; (3) the most desirable use for which the land
in each district is adapted; (4) the conservation of property values throughout the
jurisdiction; and (5) responsible development and growth.
The Court of Appeals interpretation of the statute -- that a municipality must
comply with its comprehension plans vision absent a compelling reason -- attempts to
create a rebuttable presumption that the statute does not erect. A municipality
must consider all factors and make a balanced determination. Ind. Code Ann.
§ 36-7-4-603 (West 1997).
The evidence indicates the plan commission and the town council did pay reasonable
regard to each of the factors listed in the statute. (Appellants App.
at 853). The minutes of their respective meetings explicitly reflect that they
were concerned with the existing traffic congestion at the intersection of 109th Street
and U.S. 41. (Appellants App. at 710, 826-36, 843-47). They decided
that before they would rezone the lot, road construction was needed to alleviate
the traffic problems and prevent frustrated drivers from using the neighborhood just west
of the intersection as a shortcut.
Id. The property values of
the residences in the area also affected their decision. Id. These
concerns provide a rational basis for the Towns legislative decision.
Even though none of these concerns address directly the considerations that led to
the initial land use designation in the comprehensive plan, it does not follow
that the Town ignored this statutory factor. It merely means that after
weighing all of the statutory factors, the Towns balancing suggested a permissible deviation
from the comprehensive plan. These concerns provide a rational basis for the
Towns decision, and therefore, it is not arbitrary and capricious.
Although evidence outside of a commission meeting offered by members of the commission
substitute for the minutes of the meeting, evidence used to supplement the
minutes is properly admissible. See Peavler v. Board of Commrs, 528 N.E.2d
40, 48 (Ind. 1988) (implying that testimony of commissioners would have been admitted
if offered); Scott, 659 N.E2d at 591 n.1; Gerbers, Ltd. v. Wells County
Drainage Bd., 608 N.E.2d 997, 1000 (Ind. Ct. App. 1993).
Indiana cases that have strictly adhered to the principle of boards speaking only
through their minutes and records seem to have involved situations where the minutes
or records were silent on the issue that the additional evidence sought to
prove. In these cases, the courts refused to permit the use of
external evidence as a substitute for the minutes.
In this case, the
minutes do address the reasons for denying Borsuks request for rezoning. (Appellants
App. at 710, 826-36, 843-47). Therefore, the trial court properly admitted
Sawyers affidavit as a supplement to the minutes of the Plan Commission and
A land-use regulation does not become a taking if it substantially advances legitimate
state interests and does not deny economically viable use of land.
Nollan v. California Coastal Comm'n, 483 U.S. 825, 834 (1987); Penn Cent. Transp.
Co. v. City of New York, 438 U.S. 104, 127 (1978). Diminution
in property value caused by a regulation, standing alone, cannot establish a taking.
Instead, the taking issue is resolved by focusing on the uses the
regulation permits. Penn Central Trans. Co., 438 U.S. at 130.
There has been some debate earlier in this cause over whether or not
local ordinances would permit Borsuk to build a commercial structure on the commercially
zoned portion of his lot.
As a matter of takings law, this
debate focuses on a moot point, because Borsuk derives rental income from the
residence on his lot. A rented residence is certainly an economically viable
use of land. See Lucas v. South Carolina Coastal Council, 505 U.S.
1003, 1014 (1992). There was no taking here.