Attorneys for Appellant Attorneys for Appellees
Steven K. Emery David B. Schilling
Holly M. Harvey Bloomington, Indiana
Michael A. Mullett
Indiana Municipal Lawyers
Karen L. Arland
Indiana Supreme Court
Story Bed & Breakfast, LLP,
Appellant (Plaintiff below),
Brown County Area Plan
Appellee (Defendant below),
Patricia N. March,
Appellee (Intervener-Defendant _________________________________
Appeal from the Brown Circuit Court, No. 07C01-0104-CP-0116
The Honorable Judith A. Stewart, Judge
On Petition To Transfer from the Indiana Court of Appeals, No. 07A01-0206-CV-201
December 16, 2004
We hold that covenants imposed by the Brown County Area Plan Commission as
conditions for approval of a planned unit development are enforceable against a subsequent
purchaser of property subject to the PUD.
Factual and Procedural Background
The property involved in this case originally consisted of approximately twenty-two acres containing
a restaurant and mill in an area zoned for commercial use, and a
number of houses used as rental and boarding units in areas zoned for
residential use. In 1986, Story Group Inc. requested the Brown County Plan
Commission and the County Commissioners to designate over seven acres as a Planned
Unit Development (PUD) to permit operation of a bed and breakfast which would
take guests by reservation only.
After a hearing, Story Group and the
Plan Commission met in a work session in which they discussed sixteen proposed
restrictions on the property. The Plan Commissions Primary Approval on June 24,
1986 recited that Story Groups proposed plat is granted primary approval subject to
the following conditions: See list of covenants attached . . .
The attached covenants listed fourteen provisions from the work session, including (3) No
outside loud speakers or audio equipment will be used for any reason what
so ever [sic], (4) No overnight camping will be allowed within the PUD
or in any of its [sic] parking areas, (5) No excess noise or
excess lighting shall be allowed and all exterior lighting will be . .
. turned off at 10:00 p.m., and (10) The owner agrees to obtain
all necessary State and Local permits, inspections, approvals and license [sic]. On
September 23, 1986, the Plan Commission recommended secondary approval subject to covenants as
approved in Primary hearing. Subsequently, the Brown County Board of Commissioners unanimously
approved the PUD as submitted with covenants.
The PUD was modified in 1992 to include the entire twenty-two acre tract
of land, but retained essentially the same provisions. The Plan Commission unanimously
gave primary and secondary approval of the 1992 application subject to four additional
conditions and [s]ubject to the previously approved covenants. The covenants from both
the 1986 and 1992 approvals were retained in the Plan Commissions office and
were available for inspection, but were never recorded in the office of the
Story Group Inc. went into receivership on December 6, 1998, and on that
date Frank Mueller took possession of the Story Property. Mueller and Rick
Hofstetter, two individuals who had no affiliation with Story Group, Inc., have been
operating the property in one form or another ever since. The record
does not make clear Muellers and Hofstetters initial arrangement, but it is clear
that Dubois County Bank, a mortgagee of the Property, acquired title at a
sheriffs sale on February 14, 1999 and deeded it to Mueller on May
18, 1999. On August 3, 1999, Mueller transferred the property to Story
B&B, LLP (B&B), a partnership of Hofstetter and Mueller. Prior to the
banks transfer to Mueller, Mueller and Hofstetter were aware that the property was
designated a PUD, but were apparently unaware of the specific requirements.
See footnote No
one from B&B contacted the Plan Commissions office to i
nquire about the PUD
or made any other effort to discover any possible conditions attached to the
Between December, 1998, and September, 1999, B&B expended more than $100,000 in improvements
on the Story Property, including repairing leaking roofs, rotting floors, and electrical problems,
removing lead based paint, increasing cooler space in the kitchen, conversion of the
mill on the property to a bar and grill, and construction of a
wooden deck designed for dining, an outdoor public restroom and a storage addition
to the mill. In that process, beginning at least on May 3,
1999, B&B asked Doug Harden, then acting Director and Building Inspector for the
Plan Commission, for assistance in securing permits from the State to construct a
new septic field. On May 4, 1999, Mueller applied for a building
permit from the Plan Commission. Joan Wright became director of the Plan
Commission and of the Brown County Area Board of Zoning Appeals at some
point between May and September 1999. According to her, although B&B received
building and septic permits, it failed to obtain improvement location permits or certificates
of occupancy for the bar and grill or for the outdoor food preparation
In September, 1999, Wright sent B&B a copy of the PUD restrictions under
cover of a letter stating that the PUD does not permit use of
the Mill building as a bar and grill. It is designed as
a shop/Office/B&B unit and any other use of the building violates the terms
of the PUD. Further, any use of or on the property which
is not specified in the PUD violates the conditions of approval. In
May 2000, Wright advised B&B that the PUD also contained prohibitions against primitive
camping and amplified music. At least since the spring of 2000, B&B
has hosted a number of events on the property throughout the year including
Story Fest in the spring and October Fest in the fall. In
2000, Story Fest drew 1,500-2,000 people and October Fest doubled that attendance.
These festivals involved bringing in artists and musicians for a day of music,
arts and crafts, food, and libations. After the 2000 Story Fest the
Plan Commission received complaints from B&Bs neighbors that the festival included amplified music
audible from neighboring properties, used a portion of the grounds as an amphitheater,
used a building designated as a picnic shelter as a stage, and allowed
In April 2001, B&B filed a Petition for Declaratory Judgment and
sought a preliminary injunction against the Plan Commissions enforcement of the requirements of
the PUD. After one half day the hearing was adjourned without resolution
due to the courts other scheduled commitments. In May 2001, a neighbor
of the property, Patricia March, was granted leave to intervene in the dormant
lawsuit. The Plan Commission then counterclaimed for declaratory judgment and moved for
summary judgment. B&B responded with its own motion for summary judgment.
The parties contentions focused on the terms conditions and commitments as they appear
in the PUD statutes explained below. The Plan Commission argued that the
Story Property was subject to the PUD, that the restrictions in the PUD
constituted valid conditions, and that B&B was in violation of these conditions.
B&B asserted that the restrictions were commitments, and under the applicable statute, were
not enforceable against B&B because they were not recorded. In the alternative,
B&B contended that the Plan Commission was estopped from enforcing the PUD by
reason of its grant of the building permit.
In the meantime, in preparation for October Fest 2001, B&B spent an additional
$250,000 on musicians, artists, and advertising. In an attempt to comply with
the PUD covenants, B&B planned to end the music at October Fest 2001
at 9:50 p.m., place speakers inside the barn that housed the stage, provide
shuttle service to alleviate traffic congestion, add security, and disallow overnight camping.
October Fest 2001 then proceeded without interference.
After a December hearing on the cross motions for summary judgment, the trial
court found that most of the PUD restrictions at issue were phrased as
directives, but observed that some others were phrased as agreements by the developer.
The trial court ruled that at least the restrictions framed as directives
nditions and therefore did not need to be recorded. The trial
court found that questions of fact remained as to what the Plan Commission
discovered during the inspection of the property pursuant to the issuance of the
improvement location permit, what B&B told the Plan Commission, and what representations, if
any, were made by the Plan Commission at that time. Accordingly, the
trial court left for trial whether the Plan Commission was equitably estopped from
enforcing the restrictions against outdoor food preparation and use of the mill as
a grill and tavern. The trial court left for trial whether the
conditions were required to be recorded pursuant to the Brown County ordinance discussed
below, whether this requirement prohibits enforcement of the restrictions, and whether B&B has
violated the PUD. At B&Bs request the trial court certified its order
on summary judgment for interlocutory appeal.
The Court of Appeals concluded that it was impossible to draw a meaningful
line between conditions and commitments and focused on whether B&B had reasonable notice
of the land use restrictions. Story Bed & Breakfast, LLP v. Brown
County Area Plan Commn, 789 N.E.2d 13, 17-18 (Ind. Ct. App. 2003).
The Court of Appeals held that placing the restrictions in the minutes of
the plan committee meetings did not provide B&B reasonable notice and therefore the
restrictions were unenforceable. Id. at 20. Clarifying its earlier holding on
rehearing, the Court of Appeals rejected the Plan Commissions claim that B&Bs knowledge
of the PUD designation put B&B on inquiry notice of the specific terms
of the conditions. Story Bed & Breakfast, LLP v. Brown County Area
Plan Commn, 794 N.E.2d 519, 523 (Ind. Ct. App. 2003). We granted
transfer. Story Bed & Breakfast, LLP v. Brown County Area Plan Commn,
812 N.E.2d 793 (Ind. 2004).
I. Planned Unit Developments
Traditional or Euclidean zoning, named for Village of Euclid v. Amber Realty Co.,
272 U.S. 365 (1926), divides municipalities into rigid districts. Each district or
zone is dedicated to a particular purpose, which appears on the municipalitys official
zoning map and is incorporated into the local zoning regulations. Under these
early ordinances, anyone could refer to the official zoning map and find the
zone for each property and the height, bulk, and use restrictions applicable in
While this type of zoning has the advantage of predictability, that certainty comes
at a price: Traditional zoning has had the virtue of certainty and
the handicap of rigidity. Town of Schererville v. Vavrus, 180 Ind. App.
500, 505 n.1, 389 N.E.2d 346, 348 n.1 (1979). Zoning has been
criticized as producing cookie cutter developments populated with structures nearly identical in style,
setback, and lot size. Frankland v. City of Lake Oswego, 517 P.2d
1042, 1047 (Or. 1973). A planned unit development (PUD) is a device
used to permit amendment of an existing zoning ordinance for a designated property.
101A C.J.S. Zoning and Land Planning § 42 at 157 (1979).
PUDs are designed to allow municipalities to adopt a flexible approach to zoning
with the opportunity to shift density to developable portions of a property or
to mix residential, commercial, and even industrial uses. . . . [T]he
[PUD] district, once established, constitutes a separate zoning district in addition to the
more conventional types of zoning districts. 1 E. C. Yokley, Zoning Law
and Practice § 6-1 (4th ed. 2000).
A. Indiana Statutes Governing PUDs
In the 1970s, local legislative bodies began including PUD regulations in local ordinances.
See generally Vavrus, 180 Ind. App. 500, 389 N.E.2d 346. The
General Assembly first addressed PUDs in 1982 when section 713 was added to
the statutes governing subdivisions. That section, since repealed, provided that local legislative
bodies could allow PUDs which may deviate in certain respects from the standards
prescribed by the subdivision control ordinance. Ind. Code § 36-7-4-713 (1986) (added
by Acts 1982, P.L. 211, § 15). Effective September 1, 1986, the
General Assembly included PUDs as one type of zoning ordinance classification. I.C.
§ 36-7-4-601(d)(4). Also in September 1986, section 613 was added to the
Code. Section 613(a) provided that a plan commission may permit or require
the owner of a parcel of property to make a written commitment concerning
the use or development of that parcel. Section 613(b) provided that commitments
must be recorded in order to bind subsequent purchasers without actual knowledge.
In 1996, section 713 was replaced by the 1500 SERIES-PLANNED UNIT DEVELOPMENT.
See I. C. § 36-7-4-1500 et seq. (1997) (effective Jan. 1, 1996).
Section 1505(c) states the legislative body shall adopt and amend a PUD district
ordinance in the same manner as a zone map change. The Code
requires the legislative body to provide written notice and a hearing on the
proposal for a zone map change. I.C. § 36-7-4-608.5. If approved
[z]one maps incorporated by reference into the zoning ordinance are not required to
be printed in the code of ordinances, book, or pamphlet printed under this
section, but the plan commission shall keep them available at its office for
public inspection. I.C. § 36-7-4-610(c). Therefore, a PUD approval need not
be recorded, but the plan commission must keep it available at its office
for public inspection. In 1996, the General Assembly limited section 613 to
development plans, and added 615 governing PUD commitments. Section 615(c) provides An
unrecorded commitment is binding on a subsequent owner of the parcel or a
person acquiring an interest in the parcel only if the subsequent owner or
the person acquiring the interest has actual notice of the commitment.
Subsection 1512(a) provides that the legislative body of a unit, in adopting
a district ordinance for a PUD, may:
Impose reasonable conditions on a proposed planned unit development.
Condition issuance of an improvement location permit on the furnishing of a bond
or a satisfactorily written assurance guaranteeing the timely completion of a proposed public
improvement in a planned unit development or serving a planned unit development.
Allow or require an owner of real property to make a written commitment
in the manner authorized under section 614 or 615 of this chapter.
Subsection 1512(b) provides that legislative body, in recommending a PUD district ordinance, may:
impose the conditions described in subsection (a)(1) and (a)(2); and
allow or require a written commitment as authorized under section 614 or 615
of this chapter.
The parties do not base any contention on the fact that the 1500
eries was enacted and section 613 was repealed after the PUD approvals but
before B&B acquired the property.
The Plan Commission acknowledges that section 615(c) requires recording of commitments, but contends
that unrecorded conditions may nonetheless be binding on subsequent purchasers because they are
other land use restrictions created in accordance with law which by the express
terms of section 613(c) were unaffected by section 613(b). The Plan Commission
also argues that section 1512 contemplates both conditions and commitments but only the
latter are required to be done as authorized under section 614 or 615,
which requires recording to be effective against persons without actual knowledge.
Section 613(c), now amended, provided that This section does not affect the validity
of any covenant, easement, equitable servitude, or other land use restriction created in
accordance with law. Section 921(e) of the local planning and zoning sections
of the Code deals with variances. It provides that [c]onditions imposed on
the granting of an exception, a use, or a variance are not subject
to the rules applicable to commitments. I.C. § 36-7-4-921(e). Both parties
agree that if a legislative body imposes the restriction, it is a condition,
but if it is submitted by the property owner to induce rezoning, it
is a commitment. The Court of Appeals found no intelligible distinction between
these terms and declined to attach any significance to them. Story, 789
N.E.2d at 18. We conclude that the legislative distinction between commitments and
conditions must be given effect. In short, the Court of Appeals is
correct that the distinction is murky, but the terms have been given meaning
in practice, and although it may be desirable, recording of conditions is not
required. Property being used other than in compliance with the general zoning
ordinance may be subject to a variance or PUD, which amounts to an
exception to the ordinance. Citizens for Mt. Vernon v. City of Mt.
Vernon, 947 P.2d 1208, 1215 (Wash. 1997) (rezoning is the legal effect of
approving a PUD); Madelker, Land Use Law §§ 9.24-9.30 (Lexis Law Pub. 1997)
(a PUD is developed free from most specific zoning regulations and usually as
a separate zoning district). Whether the legislative body rezones or allows a
variance or PUD, conditions imposed on that action need not be recorded and
thus require the purchaser to examine the records of the relevant agency to
B. The Story PUD
On May 1, 1989, the Brown County Board of Commissioners passed a zoning
ordinance which included provisions governing PUDs. In 1996, Indiana Code section 36-7-4-1504
was enacted and expressly authorized local regulations for PUDs in general as long
as they meet the requirements of the 1500 SeriesPlanned Unit Development. Under
that statute, the Brown County PUD ordinance was the exclusive means for exercising
zoning control over [PUDs]. I.C. § 36-7-4-1504(c). All parties agree that
the 1992 Story PUD approval was governed by the Brown County PUD ordinance
and the subsequently enacted 1500 Series. The Brown County Zoning Ordinance defines
a Planned Unit Development as:
[A] tract of land proposed to be developed for five (5) or more
residential, commercial, or industrial uses or structures, or combinations thereof, (which includes any
multi-unit structure with five or more units the intended uses of which are
identical), which are planned and developed as a whole under single or joint
ownership for the purpose of selling, leasing, renting or conveying individual lots, units,
or structures in the future.
The Story Groups 1986 request to rezone the Story Property as a PUD
was resisted by Brown County residents who were concerned about noise, traffic, and
change of the character of their community. Balancing against these concerns was
the written description of the layout and concept of the proposed Story Property
PUD submitted by the Story Group including that:
The principle [sic] focus in the past and for the future, is less
people in Story not more. If the petitioners were limited to their
present resources the emphasis would have to be to build a volume business
in the restaurant thus increasing traffic. With the projected development the objectives
will be to require reservations for dinner and overnight guests and constructing fewer
yet more comfortable and exclusive lodging units. Fewer people are easier to
Similarly, in the course of a May 27, 1986 public hearing on Story
Groups request for PUD designation, Story Group presented the Plan Commission with a
second written description of the layout and concept of the requested PUD, including
the following passage:
A principle [sic] objective in this development is to focus on more exclusive
and sophisticated services for fewer people rather than, for example, opening the restaurant
and gift shop to as many people as advertising can bring in.
Current and projected policy, also, is reservation only for dinner and overnight guests,
again reducing the number of people in Story at any given time.
To preserve this tranquil atmosphere, the Plan Commission chose to impose covenants documented
in its Primary Approval of Planned Unit Development, dated June 24, 1986.
The Plan Commission kept this document along with all others relating to the
Story Propertys PUD designation in its office. The Board of Commissioners kept
its copy of the Story PUD documents in the County Auditors office.
In 1992, the Plan Commission recommended approval of a second PUD which retained
most restrictions, eliminated a few not relevant here, and added some others, including
that the deck would remain unroofed and have no food service. Again,
the Plan Commission document referred to these as conditions. These, like their
1986 predecessors, were unrecorded but were retained in the Plan Commission office.
C. The Legal Status of the Story Restrictions
All agree that the Story Property is a PUD, that its approval with
covenants was designed to protect adjacent properties, and that these restrictions applied to
the property in the hands of Story Group, its original developers. The
issue is whether B&B is also bound by the same covenants. The
trial court granted summary judgment to the Plan Commission and against B&B on
the question whether these covenants applied to B&B as a successor of Story
B&B argues that summary judgment is improper because the status of the restrictions
turns on a disputed question of fact. Some of the restrictions use
the term agree, which B&B contends implies an agreement existed. B&B argues
that this implies that all of the restrictions were part of a commitment
made by Story Group and therefore were required to be recorded to be
effective against subsequent purchasers. The trial court agreed as to some of
the restrictions, but found as a matter of law that nine of them,
including numbers 3, 4, and 5 were conditions.
Neither case law nor the statute provides a definition of either condition or
commitment. The Plan Commission asserts that the trial court properly concluded that
at least nine of the restrictions were conditions imposed by the county pursuant
to Indiana Code section 36-7-4-1512(b)(1) rather than commitments tendered by the landowner pursuant
to Indiana Code section 36-7-4-1512(b)(2). The approvals do not contain the term
commitments. Moreover, the 1986 Plan Commission approval itself states that the PUD
is granted subject to the following conditions, as do the minutes of the
Plan Commission meeting in which the 1992 PUD was approved. The character
of the restrictions does not turn solely on the label that the Plan
Commission chooses to place on them. However, restrictions number 1, 3, 4,
5, 6, 8, 11 and 12 are phrased as directives not as agreements,
and the Plan Commission treated them as conditions of approval that could be
enforced against subsequent owners even if not recorded. The Plan Commission thus
drew two legal conclusions: First, it was permissible to have enforceable conditions
without recording them, and, second, that these restrictions were in that category.
Two amici curiae, the Indiana Association of Cities and Towns and Indiana Municipal
Lawyers Association, without supporting evidence, state that the practice of imposing conditions on
PUD approvals is widespread. The administrative construction of the agencys own documents
and statute is entitled to weight. Chevron, U.S.A., Inc. v. Natural Res.
Def. Council, Inc., 467 U.S. 837 (1984); Healthscript, Inc. v. State, 770 N.E.2d
810, 814 (Ind. 2002) (noting the scholarly debate over Chevrons application to administrative
statutes that are criminally enforceable); LTV Steel Co. v. Griffin, 730 N.E.2d 1251,
1257 (Ind. 2000) (An interpretation of a statute by an administrative agency charged
with the duty of enforcing the statute is entitled to great weight, unless
this interpretation would be inconsistent with the statute itself.). The wisdom of
distinguishing conditions from commitments in this respect is a matter for the legislature.
We conclude, as the trial court did that, the Indiana statutes governing
PUDs do not require that conditions attached to approval of a PUD be
recorded in the recorders office to be effective against subsequent purchasers as long
as the conditions are available as public records. Rather, they are in
the nature of zoning ordinances which are effective against the public at large.
D. Bona Fide Purchaser
Apart from whether unrecorded PUD conditions are enforceable against bona fide purchasers, B&B
was not a bona fide purchaser without notice. In order to qualify
as a bona fide purchaser, one must purchase in good faith, for valuable
consideration, and without notice of the outstanding rights of others. John v.
Hatfield, 84 Ind. 75, 81-82 (1882). The law recognizes both constructive and
actual notice. Altman v. Circle City Glass Corp., 484 N.E.2d 1296, 1298
(Ind. Ct. App. 1985); Keybank Natl Assn v. NBD Bank, 699 N.E.2d 322,
327 (Ind. Ct. App. 1998). It is undisputed that B&B had actual
notice that the Story Property was zoned as a PUD before the property
was purchased. Furthermore, it is undisputed that the conditions were properly included
as an element of the PUD approval. Property owners are charged with
knowledge of ordinances that affect their property. See Texaco, Inc. v. Short,
454 U.S. 516 (1982); Bd. of Zoning Appeals v. Leisz, 702 N.E.2d 1026,
1030 (Ind. 1998); Advisory Bd. of Zoning Appeals of Hammond v. Found. for
Comprehensive Mental Health, Inc., 497 N.E.2d 1089, 1093 (Ind. Ct. App. 1986); Mitchell
v. Chernecki, 593 P.2d 1163, 1165-66 (Or. 1979). The creation of a
PUD is a legislative act and PUD provisions are zoning ordinances. South
Creek Assoc. v. Bixby & Assoc.,, 781 P.2d 1027, 1032 (Colo. 1989) (A
PUD enabling ordinance is a legislative enactment. A PUD plan adopted and
approved pursuant to such an ordinance constitutes a form of rezoning for the
area included within the PUD.); Levitt Homes, Inc. v. Old Farm Homeowners Assn,
444 N.E.2d 194, 202 (Ill. App. Ct. 1982) (PUDs allow greater flexibility in
development than is available under general zoning ordinances); Nesbit v. City of Albuquerque,
575 P.2d 1340, 1343 (N.M. 1977) (approval of PUD plan constitutes a zoning
restriction); State ex rel. Comm. for the Referendum of Ordinance No. 3844-02 v.
Norris, 792 N.E.2d 186, 190-91 (Ohio 2003) (approval of the PUD plat was
a legislative act because the specific zoning restrictions in the PUD area were
only upon approval of the plat); Peachtree Dev. Co. v. Paul, 423 N.E.2d
1087, 1092 (Ohio 1981) (both the creation and implementation of a PUD are
legislative acts because they are the functional equivalent of traditional legislative zoning); Erb
v. Common Council of Eugene, 539 P.2d 1125, 1127 (Or. Ct. App. 1975)
(PUDs are included in many zoning ordinances because they present a method of
achieving flexibility); In re Stowe Club Highlands, 668 A.2d 1271, 1275 (Vt. 1995)
(PUDs merge zoning and subdivision requirements).
In Bixby, a developer gained approval of a PUD which, among other things,
provided guidelines for the use of a parking lot within a developed area.
781 P.2d at 1028. The PUD was not recorded in the
recorders office. However, a subdivision agreement recorded in the recorders office stated,
development of this subdivision is controlled by an approved [PUD] approved by the
Planning Board. Id. A subsequent purchaser of a shopping center within
the PUD area argued that it was not subject to the PUD guidelines
because it did not have actual knowledge of the PUD or its guidelines
before it purchased the property. The Colorado Supreme Court held that because
the PUD plans have their source in public approval processes prescribed in legislative
enabling enactments they did not need to be recorded in order to be
enforceable against a subsequent purchaser of land within the PUD. Id. at
1032. Because the PUD plan is equivalent to a rezoning provision approved
pursuant to the public process prescribed by Boulders PUD ordinance, subsequent purchasers as
well as other members of the public are bound by the plan provisions.
Id. at 1033. In this case, B&B had actual knowledge that
the Story Property was a PUD. B&B is therefore charged with knowledge
of the unrecorded restrictions in the PUD.
The Plan Commissions and Brown County Commissioners records relating to the Story PUD
approval are public records open to public inspection. I.C. §§ 5-14-3-2, 5-14-3-3
(1983). B&B never attempted to view these records, and B&B conceded in
the trial court that it had no evidence that the Story PUD approval
conditions were not available for inspection in the Plan Commission or Brown County
Commissioner offices. B&B, with knowledge that the property was a PUD, and
charged with knowledge that conditions had been or could have been imposed and
might not be of record, failed to examine the publicly available records.
B&Bs actual knowledge of the PUD approval put B&B on inquiry notice of
the use and development conditions.
II. Brown County Zoning Ordinance
B&Bs primary contention is that the restrictions contained in the PUD are not
conditions and therefore are not enforceable against it because it purchased the property
without knowledge or notice of the restrictions. However, the trial court sua
sponte raised the issue of whether the Brown County Zoning Ordinance required that
the conditions be recorded and denied complete summary judgment because . .
. sufficient ambiguities exist to require evidence at trial on the meaning of
the zoning ordinance.
Interpretation of a zoning ordinance is a question of law. Metro. Dev.
Commn v. Pinnacle Media, L.L.C., 811 N.E.2d 404, 411 (Ind. Ct. App. 2004).
The ordinary rules of statutory construction apply in interpreting the language of
a zoning ordinance. The trial court identified three potential ambiguities in section
21 of the Brown County Zoning Ordinance. First, the ordinance defines plat
as a map or chart that shows a division of land and is
intended to be filed for record. Section 21(C) of the ordinance states
that the procedure for approval of a PUD shall generally conform to the
procedure for a major subdivision but the PUD procedures should be interpreted to
either supersede or [be in addition] to the requirements for a Major Subdivision.
Section 14(B)(9) of the ordinance addressing the procedures for approval of a
major subdivision, requires a copy of the approved plat to be recorded in
the office of the Brown County Recorder. The Plan Commission and March
argue that this language does not require the recording of the Story PUD
and its conditions. In their view, only if the PUD and its
conditions are intended to be used as a secondary plat for subdivision purposes
must it be recorded. In this case, the only approvals sought or
granted were PUD zoning and site plan approvals. Platting or re-platting for
subdivision purposes was neither proposed nor approved. Once again, the agencys construction
of its own ordinance is entitled to deference.
The second alleged source of ambiguity is that section 21(C)(2)(3) of the ordinance
provides that the Plan Commission may impose any reasonable conditions upon its approval,
including the recording of covenants. The Plan Commission contends even if this
provision imposes a recording requirement, it does not make the effectiveness of the
condition contingent on recording. We agree with the trial court that the
meaning of this ordinance is unclear. Specifically, it may be read to
imply that covenants must be recorded. However, as the Plan Commission observes,
it does not say that in so many words, and can be taken
to mean only that the Commission may in its discretion require recording of
Last, section 21(C)(3)(1)(a) of the ordinance states that the requirement that approval
of a detailed site plan shall be obtained within one year after approval
of the Primary Plat applies only to the Approved Detailed Planned Unit Development
and final platting for recording purposes of all or an appropriate part of
the [PUD] may be undertaken in sections or phases at a later time.
Whether section 21(C)(3)(1) makes PUD approval and platting for recording purposes two
different processes is also unclear. When the legislature enacts a statute in
derogation of the common law, this Court presumes that the legislature is aware
of the common law, and does not intend to make any change therein
beyond what it declares either in express terms or by unmistakable implication.
Dunson v. Dunson, 769 N.E.2d 1120, 1124 (Ind. 2002). PUD ordinances, being
in derogation of common law property rights, should, whenever ambiguous, be construed in
favor of the property owner. T.W. Thom Constr. v. City of Jeffersonville,
721 N.E.2d 319, 325 (Ind. Ct. App. 1999) ([A]s a general rule, zoning
ordinances limit the free use of property, are in derogation of the common
law and must be strictly construed. But this rule cannot override the
specific language of an otherwise valid and unambiguous ordinance.).
We agree with the trial court that the ordinance is less than clear
whether conditions, if imposed, are to be recorded. However, in view of
the resolution of the notice issue in Part I.D, that issue is not
material in this case. At most the ordinance recording requirement is necessary
to give notice of the conditions to third parties, and it is not
necessary to make the condition effective as to the original applicant or those
with notice. B&B had actual notice of the PUD designation, and therefore
was on inquiry notice of the specific terms of the conditions. The
County may wish to amend its ordinance, or routinely record PUD designations and
conditions to avoid these issues in the future, but the ambiguity identified by
the trial court and failure to meet a recording requirement under the ordinance
is immaterial in this case.
III. Equitable Estoppel
B&B argues that since it applied for and received permits for the development
of the Story Property and has expended a large sum of money on
improvements that the government is now estopped from enforcing the PUD conditions.
The party claiming equitable estoppel must show its (1) lack of knowledge and
of the means of knowledge as to the facts in question, (2) reliance
upon the conduct of the party estopped, and (3) action based thereon of
such a character as to change his position prejudicially. City of Crown
Point v. Lake County, 510 N.E.2d 684, 687 (Ind. 1987). As a
general rule, equitable estoppel will not be applied against governmental authorities. Id.
Our courts have been hesitant to allow an estoppel in those cases where
the party claiming to have been ignorant of the facts had access to
the correct information. Cablevision of Chicago v. Colby Cable Corp., 417 N.E.2d
348, 355 (Ind. Ct. App. 1981). The State will not be estopped
in the absence of clear evidence that its agents made representations upon which
the party asserting estoppel relied. Indiana Dept of Envtl. Mgmt. v. Conard,
614 N.E.2d 916, 921 (Ind. 1993). However, estoppel may be appropriate where
the party asserting estoppel has detrimentally relied on the governmental entitys affirmative assertion
or on its silence where there was a duty to speak. Equicor
Dev. v. Westfield-Washington Township, 758 N.E.2d 34, 39 (Ind. 2001). In Equicor,
Equicor sought approval of a plat, and the Plan Commission when reviewing the
application made suggestions in the plat, but was silent as to any parking
issue. Subsequently, the Plan Commission at the last moment attempted to deny
the plat because of a formal defect based on the failure to designate
certain parking spaces even though adjacent parking was in fact in place.
This Court held that estoppel was appropriate because the Plan Commission failed to
object timely to the designate spaces. Id. at 39-40.
The party claiming estoppel has the burden to show all facts necessary to
establish it. Conard, 614 N.E.2d at 921; Johnson v. Payne, 549 N.E.2d
48, 53 (Ind. Ct. App. 1990). B&B, as the proponent, has the
burden of establishing estoppel and has not met either the first or second
element of this claim. As discussed in Part I.D., B&B did have
actual notice of the PUD designation and was therefore on inquiry notice of
possible conditions imposed on the approval. Thus, B&Bs estoppel argument relies solely
on the Plan Commissions actions in reviewing and issuing a building permit and
its approval of a septic system. B&B contends that its application for
the building permit detailed its intent to convert the Story Property into a
bar and grill. Taking these facts in a light most favorable to
B&B, B&B fails to show that the government made misrepresentations upon which B&B
detrimentally relied. B&B does not claim affirmative statement to the effect that
the PUD imposed no conditions, and claims no reliance on any express statements
by the Plan Commission officer. The addition of a septic system was
not inconsistent with the Story PUD plan, and the Plan Commissions approval of
the permit without questioning the intent to use the property as a bar
and grill does not relieve B&B of its duty to abide by the
conditions contained in the PUD. One cannot estop the local zoning authority
from enforcing a specific prohibition (for example no loud music) by relying on
a generalized objective (authority knew of B&Bs intention to operate a bar and
grill) listed in an application for a permit (building and septic tank approval).
The PUD conditions are valid and enforceable against B&B because it had actual
notice of the PUD designation and was on inquiry notice of the conditions.
The Plan Commission is not estopped from enforcing the conditions. This
case is remanded for further proceedings consistent with this opinion.
Shepard, C.J., and Dickson, Sullivan, and Rucker, JJ. concur.
Prior to the 1986
PUD application, according to the Plan Commission minutes, Story Groups use of the
property was without licensing and in violation of the applicable zoning restri
In April, 1999, Doug Harden, the Director of the Plan Commission and
building inspector, met with Hofstetter regarding septic system design for the Story Property
nformed Hofstetter that the Story Property had been granted PUD approval by
the Plan Commission and the County Commissioners. May 4, 1999, Mueller applied
to the Plan Commission for an improvement location or building permit stating that
B&B sought to build an addition to the mill to be used for
storage and restrooms. The application states that the property is a PUD.
Compare covenants number (3) No outside loudspeakers or audio equipment will be
used for any reason what so ever; (4) No overnight camping will
be allowed within the PUD or in any of its parking areas; and
(5) No excessive noise or excess lighting shall be allowed . . .
The outside lights to be turned off at 10 p.m.; with (2) The
developers agree to follow through with the PUD site plan layout concepts and
to complete all work in a professional manner.
Footnote: Prior to I.C. § 36-7-4-101 section 613 applied to advisory planning, area
planning and metropolitan development. Currently, section 614 applies to metropolitan planning and
615 to advisory area planning. The Plan Commission is advisory pursuant to
Indiana Code section 36-7-1-2.