ATTORNEY FOR APPELLANTS: ATTORNEY FOR APPELLEES:
DAVID B. SCHILLING JAMES T. ROBERTS
Bloomington, Indiana Nashville, Indiana
COURT OF APPEALS OF INDIANA
BROWN COUNTY INDIANA, BROWN )
COUNTY AREA PLAN COMMISSION and )
BROWN COUNTY AREA BOARD OF )
ZONING APPEALS, )
vs. ) No. 07A01-0206-CV-211
JOHN W. BOOE, BROWN COUNTY )
SAWMILL, INC., JOHN WEAVER BOOE )
REVOCABLE LIVING TRUST and )
BECKEMEYERS CUSTOM MILLWORK, INC. )
APPEAL FROM THE BROWN CIRCUIT COURT
The Honorable William E. Vance, Special Judge
Cause No. 07C01-0008-CP-260
May 21, 2003
OPINION - FOR PUBLICATION
Brown County, the Brown County Area Plan Commission, and the Brown County Area
Board of Zoning Appeals (collectively Brown County) filed a complaint against John Booe,
Brown County Sawmill, Inc., the John Weaver Booe Revocable Living Trust (collectively Booe),
and Beckemeyers Custom Millwork Inc. (Beckemeyer) in Brown Circuit Court. In the
complaint, Brown County alleged that Booe was operating a sawmill in a manner
that violated both the zoning ordinance and the sawmill special exception granted to
Booe in 1976. The complaint also alleged that Beckemeyers custom millwork use
of a tract of land purchased from Booe was not a use permitted
by the zoning ordinance or by the 1976 sawmill special exception. In
addition to a request for civil penalties, Brown County requested that the trial
court enjoin Booe and Beckemeyer from continuing to use the property for industrial
Both Booe and Beckemeyer filed answers to the complaint asserting several affirmative defenses
including estoppel and laches. Beckemeyer also filed a counterclaim for declaratory judgment
requesting the trial court to issue a judgment declaring that his property is
zoned industrial as defined by the zoning ordinance. A trial was held,
and the trial court issued special findings of fact and conclusions of law
finding in part that 1) Booes use of the property as a sawmill
has not changed since the special exception was granted; 2) Brown County is
estopped from challenging Booes industrial use of his property; 3) Brown County is
estopped to deny Beckemeyers use of his property for an industrial purpose; and
4) Beckemeyer was entitled to a declaratory judgment that his property is zoned
Brown County appeals and raises several issues, which we consolidate and restate as:
I. Whether the trial court erred when it found that Brown County
was estopped from challenging Booes and Beckemeyers industrial uses of their property;
II. Whether Brown Countys approval of the Heritage Hills subdivision plat constituted a
de facto rezoning of Beckemeyers property;
III. Whether the trial court erred when it denied Brown Countys Trial Rule
15(B) motion; and,
IV. Whether the trial court erred when it failed to grant Brown County
relief on the issues it attempted to raise by filing the Trial Rule
Finding that Brown County is estopped from challenging Booes and Beckemeyers current industrial
uses of their property, but that approval of the subdivision plat did not
constitute de facto rezoning of Beckemeyers property, we affirm in part and reverse
in part.See footnote
Facts and Procedural History
Brown County adopted its zoning ordinance, including zoning maps, in 1965 and readopted
it in 1989. The ordinance divided the unincorporated areas of Brown County
into districts with differing zoning designations including industrial, forest reserve (FR), and residential
2 (R-2). Pursuant to the ordinance, any property located within 300 feet
of a county road is zoned R-2. Also, under the ordinance, special
exception uses may be granted subject to the primary use table, which identifies
the permitted uses in each zoning district. With the exception of a
radio or television tower, no industrial uses are permitted in an R-2 district;
however, several industrial uses are allowed in FR districts. Ex. Vol., Plaintiffs
Ex. B p. 14.
Prior to 1974, Booe purchased property in Gnaw Bone, Brown County, Indiana.
In 1974, Booe began to operate a sawmill on the property. That
year he applied for a special exception to locate and operate a saw
mill in a Forest Rec[reation] district. Ex. Vol., Plaintiffs Ex. K. The
Board of Zoning Appeals (BZA) denied Booes application for a special exception because
of the road condition & residential area. Ex. Vol., Plaintiffs Ex. L.
One year later in 1975, Booe again applied for a special exception
to operate a sawmill. Ex. Vol., Plaintiffs Ex. P. On the
hand drawn map attached to the application, Booe noted that the sawmill was
located 400 feet from Brown Hill Road and adjacent to a private road.
Id. Although several landowners opposed the application, the Plan Commission recommended
to the BZA that they grant the special exception. Ex. Vol., Plaintiffs
Ex. S. However, the BZA denied the application. Id. In
1976, Booe once again applied for a special exception, now for the third
time. This third application was also opposed by landowners in the area.
At the hearing on his application, Booe admitted that he had been
operating the sawmill illegally and indicated that the sawmill was located 418 feet
from Brown Hill Road. Ex. Vol., Plaintiffs Ex. U. The BZA
granted his application for a special exception on August 24, 1976. Id.
In 1994, Booe decided to subdivide his property and submitted a primary plat
to the Plan Commission. The subdivision, known as the North of Gnaw
Bone subdivision, contained Tract I-1, a three acre tract, and a note on
the plat indicated that Tract I-1 is an industrial zoned tract. Ex.
Vol., Defendants Ex. 2. Booes sawmill is located on this tract.
Id. The Plan Commission gave final approval of the plat in 1995.
In 1998, Booe submitted an application to vacate the previous subdivision plat and
replat, naming the subdivision Heritage Hills. After submitting his primary plat, Booe
received a letter from the Plan Commission requesting several changes to the plat
including: 1) Relocate east line on Tract #5 to accommodate County Road 169;
2) Relocate east line on Tract #6 to accommodate County Road 169 and
the industrial building; making Tract #6 residential; and 3) dedicate County Road 169.
Ex. Vol., Plaintiffs Ex. EE.
Booe made the changes to the plat requested by the Plan Commission and
it was approved. The approved plat contains three tracts, I-1, I-1A, and
I-1B, which were noted as being industrial zoned tracts. Tract I-1A is
situated between tracts 6 and 7. Ex. Vol., Plaintiffs Ex. I.
The plat also notes that the approximate location of Pubic Road #169 is
over Aaron Drive as easement labeled L, M, N. Id. The
plat was recorded on February 17, 1998.
On March 31, 1999, Booe sold Tract I-1A to Beckemeyer. At the
time of the sale a large pole barn was situated on the property.
Ex. Vol., Defendants Ex. 4. In the real estate listing, the
pole barn was described as a [l]ight industrial 30x110 pole barn with concrete
floor on 1 acre. 400 amp service (3 phase). Id.
Prior to purchasing the tract, Beckemeyer reviewed the recorded Heritage Hills subdivision plat,
which described the tract as having industrial zoning, and noted that Booe operated
a sawmill on another industrial tract in the subdivision. Also, Beckemeyer discovered
that Tract I-1A was taxed as a secondary commercial/industrial land tract. Before
he bought the tract, Beckemeyer made an inquiry regarding the sawmill special exception
and received a letter from an employee of the Plan Commission, Dan Harden.
That letter provides: The special exception granted for sawmill in FR zoning,
is granted for the property not the owners as per B.C. zoning ordinance
and state statutes. This also allows woodworking in this and any zoning
district. This property was given FR zoning in error, the zoning is
R-2. Appellants App. p. 50. After he purchased the property, Beckemeyer began
to store cars, building materials, and construction equipment on it.
At the Plan Commission meeting on February 24, 2000, a resident of the
Heritage Hills subdivision, represented her concern to the Commission that Tract I-1A be
restricted to the number of businesses and type of businesses. Ex. Vol.,
Plaintiffs Ex. MM. Attorney Dave Schilling informed the Commission that the property
was never rezoned industrial and indicated that when the property was subdivided, the
intended use of the property had changed, and therefore, Booe should be required
to apply for a new special exception. Id. Schilling also stated
that the special exception was granted for a sawmill, but Booes sawmill operates
now as a manufacturing mill, which was not permitted by the special exception.
Id. Thereafter, the Commission sent a letter to Booe indicating that
his present use of the sawmill property was in violation of the zoning
ordinance, and Booe should apply for all required approvals to bring the property
into compliance by May 3, 2000. Ex. Vol., Plaintiffs Ex. SS.
Booe did not file any such application.
On August 15, 2000, Brown County filed a complaint against Booe and Beckemeyer
requesting preliminary and permanent injunctions, declaratory judgment, civil penalties, and damages. In
the complaint, Brown County alleged that Booe has operated a sawmill on the
property in a manner that violates the zoning ordinance and the 1976 sawmill
special exception, or in the alternative that Booe has changed the nature and
use of the property subject to the 1976 special sawmill exception, which under
the zoning ordinance would require a new or amended exception, which Booe has
not sought; therefore, Booes use of the property violates the zoning ordinance and
the sawmill special exception. Appellants App. pp. 18-34.
The complaint also alleged that when he subdivided the property subject to the
sawmill special exception, Booe was required to obtain a new or amended special
exception, which he failed to do in violation of the zoning ordinance.
Finally, the complaint alleged that Beckemeyer had established a custom millwork business on
the tract of property he purchased from Booe, which is an industrial use,
but that property is located within an R-2 zoning district; therefore, Beckemeyer was
operating the millwork business in violation of the zoning ordinance.
Booe and Beckemeyer filed answers to the complaint, in which both raised several
affirmative defenses including estoppel and laches. Beckemeyer also requested a declaratory judgment
that Tract I-1A is zoned industrial as defined by the zoning ordinance.
Trial commenced on January 23, 2002, and Brown County requested special findings of
fact and conclusions of law. At trial, Brown County argued that the
property on which the Booe sawmill is located is zoned R-2 because it
is within 300 feet of County Road 169; therefore, pursuant to the zoning
ordinance, industrial uses are not permitted on the property. It also argued
that Booe no longer uses the property as a sawmill, but to do
woodworking and to manufacture flooring and custom moldings. Booe testified that prior
to the date that his 1998 subdivision plat was approved, he had not
known that what he believed to be an easement running through his property
was actually County Road 169. Tr. p. 94. Booe also stated
that Brown County has purchased building materials from the sawmill, and that several
members of the Plan Commission have been on the sawmill property and have
observed its operation. Tr. pp. 100-01. Roger Beckemeyer testified that he
formed Beckemeyers Custom Millwork as a holding company, and he has never used
Tract I-1A for custom millwork, but merely for storing equipment, building materials, and
cars. Tr. pp. 112, 118-20.
On April 22, 2002, the trial court issued its findings of fact and
conclusions of law. The trial court found that 1) the 1976 sawmill
special exception was valid and Brown County was estopped from revoking it; 2)
Booes use of the property as a sawmill has not changed since the
special exception was granted; 3) Brown County is estopped from challenging Booes industrial
use of two tracts of his subdivided property; 4) Booe has made substantial
expenditures in improving his property; 5) Brown County did not meet its burden
of proving that Beckemeyer has or is using his property for an industrial
purpose, and therefore, there is no ordinance violation; 6) Brown County is estopped
to deny Beckemeyers use of his property for an industrial purpose; and 7)
Beckemeyer was entitled to a declaratory judgment that his property is zoned industrial.
Appellants App. pp. 14-16. Brown County now appeals. Additional facts
will be provided as necessary.
Standard of Review
Brown County requested special findings of fact and conclusions of law pursuant to
Indiana Trial Rule 52(A), and our standard of review is therefore two-tiered:
we determine whether the evidence supports the trial court's findings, and whether the
findings support the judgment. Indianapolis Ind. Aamco Dealers Adver. Pool v. Anderson,
746 N.E.2d 383, 386 (Ind. Ct. App. 2001). We will not disturb
the trial court's findings or judgment unless they are clearly erroneous. Id.
Findings of fact are clearly erroneous when the record lacks any reasonable
inference from the evidence to support them. Culley v. McFadden Lake Corp.,
674 N.E.2d 208, 211 (Ind. Ct. App. 1996). A judgment is clearly
erroneous when a review of the record leaves us with a firm conviction
that a mistake has been made. Carroll v. J.J.B. Hilliard, W.L. Lyons,
Inc., 738 N.E.2d 1069, 1075 (Ind. Ct. App. 2000), trans. denied. We
will neither reweigh evidence nor judge the credibility of witnesses, but will consider
only the evidence favorable to the judgment and all reasonable inferences to be
drawn therefrom. Anderson, 746 N.E.2d at 386; Gunderson v. Rondinelli, 677 N.E.2d
601, 603 (Ind. Ct. App. 1997).
I. The Brown County Zoning Ordinance
Pursuant to the Brown County zoning ordinance, unincorporated areas of the county are
divided into districts. A Forest Reserve District (FR) is defined as land
that is for the most part rough terrain and where there is extensive
public ownership of forest lands. Ex. Vol., Plaintiffs Ex. B, Brown County
Zoning Ordinance, § 2.1, p. 9.
A Secondary Residential District (R-2) include[s]
areas that have been subject to urbanization on a scattered pattern, principally along
County Highways. Id. Under the zoning ordinance, any land adjacent to
a county highway within 300 feet of the highway centerline is zoned R-2.
Brown County Zoning Ordinance, § 2.5, pp. 11-12. The boundaries of
those districts are shown in the Zone Map, which is incorporated into the
ordinance. Brown County Zoning Ordinance, § 2.2, p. 10.
The BZA has the authority to grant a special exception for use in
a district if it finds that:
section 3.1 authorizes a special exception for that use in that district;
the requirements for special exceptions prescribed by this ordinance will be met; and
granting the exception will not subvert the general purposes served by this ordinance
and will not materially and permanently injure other property or uses in the
same district and vicinity.
Brown County Zoning Ordinance, § 3.4, p. 19. With the exception of
a radio or television tower, no industrial uses are permitted in districts zoned
R-2. Brown County Zoning Ordinance, § 3.1, Primary Use Table, p. 14.
However, light and general industrial uses are permitted in FR districts, but
only if a special exception is granted for such use.
II. County Road 169
Central to Brown Countys argument is the fact that County Road 169 runs
through the Heritage Hills subdivision. Pursuant to the zoning ordinance, any property
that is situated within 300 feet of the centerline of that road is
zoned R-2. At trial, Brown County submitted several maps of the county
including the zoning map, a 1976 federal aid system map, and a public
roads map. Although it does not appear on every map, County Road
169 does appear on the federal aid system map and the public roads
map. County Road 169 is not labeled on the zoning map, but
by comparing the zoning map to other county maps submitted at trial, we
note that there is a road on the zoning map that is most
likely County Road 169.
At trial, Brown County also submitted exhibit H, which contains Findings of Fact
and Conclusions of Law dated November 9, 1978, in the case Lindemann v.
Fleming, et al. At the time of the lawsuit, Woodrow Fleming owned
the property directly to the north of Booes, and the Lindemanns owned two
parcels of property to the north and east of Flemings property. The
lawsuit was brought to establish the existence and boundaries of County Road 169.
In its findings, the trial court found that County Road 169 begins
approximately .5 miles along Brown Hill Road from State Road 46 and runs
in a generally northerly direction. A 1980 plat showing the location of
County Road 169, which was ordered by the judge in that case, shows
the road running through the Booe property. The surveyor noted on the
Booe property there appears to be a barn several years old and a
newer sawmill building that would encroach on a two rods wide right-of-way.
Ex. Vol., Plaintiffs Ex. H.
III. Equitable Estoppel
Generally, government entities are not subject to equitable estoppel. Equicor Dev., Inc.
v. Westfield-Washington Township Plan Commn, 758 N.E.2d 34, 39 (Ind. 2001). However,
in certain circumstances application of estoppel of government entities is appropriate. Id.
Specifically, 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. Id. (citations omitted). A party asserting
an estoppel defense must prove 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. U.S. Outdoor Adver. Co., Inc.
v. Ind. Dept of Transp., 714 N.E.2d 1244, 1259 (Ind. Ct. App. 1999),
trans. denied (citation omitted). Both Booe and Beckemeyer raised the affirmative defense
of estoppel, and the trial court found that Brown County was estopped 1)
from revoking the sawmill special exception; 2) from challenging Booes industrial use of
his property; and 3) to deny Beckemeyer the use of his property for
an industrial purpose.
In Equicor, the Westfield-Washington Township Plan Commission denied approval of Equicors plat for
a cluster housing development after Equicor made all changes to the plat that
were recommended by the Subdivision Committee. 758 N.E.2d at 35. In
denying the plat, although it had never notified Equicor of any alleged parking
deficiency, the Plan Commission found that Equicor failed to comply with the requirement
that it designate two on-site and one-half off-site parking spaces, excluding garages and
carports, for each one to three bedroom unit. Id. While the
plat did not list the number and location of the parking spaces, Equicor
argued that the plat showed two on-site spaces in the driveway of each
unit and curbside parking adequate to meet the one-half space off-site requirement.
Noting that while the Plan Commission suggested other changes to the plat, it
was silent as to any parking issue, our supreme court determined Equicor thus
relied on the Plan Commissions silence by proceeding in the reasonable belief that
the plat would be approved[.] Id. at 39. In determining that
the Plan Commission was estopped from asserting the parking deficiency as a reason
for disapproval of Equicors plat, the court stated:
We are dealing here with a formal defect--failure to designate the spaces.
There is no claim that the project is substantively flawed, and the Commission
does not assert that the project in fact has less parking than required.
As Equicor points out, the plat itself reveals driveways ("on-site") and curbside
spaces ("off-site") that are apparently in compliance with the requirement of two on-site
and one-half off-site spaces per unit. Raising a formal defect such as
failure to designate these visible, if undesignated, spaces at the last moment permits
agencies to fumble endlessly with proposals that are entirely lawful. Under these
circumstances, the Plan Commission's failure to object to the undesignated spaces resulted in
Equicor's detrimental reliance thereon and, therefore, estoppel is appropriate in this case.
Id. at 39-40. Noting that Equicor tendered documents to and appeared before
the Plan Commission on several occasions, the court held that the Plan Commission
had ample opportunity to point out any deficiency in the designation of parking,
and Equicor reasonably relied on the absence of any parking issue in processing
its proposal; therefore, the Commission was estopped from asserting this deficiency as the
reason for its disapproval of Equicor's plat. Id. at 40.
In contrast, in Johnson County Plan Commission v. Tinkle, 748 N.E.2d 417 (Ind.
Ct. App. 2001), our court rejected Tinkles argument that the Johnson County Plan
Commission was estopped from denying their application for plat approval. In 1976,
Johnson County enacted an ordinance that prohibited the division of tracts of ten
acres or more into three or more lots. Id. at 418.
Tinkle was aware of the ordinance but purchased a ten-acre parcel of land
with the intent of creating a subdivision. Id. Prior to Tinkles
application for primary plat approval, the Plan Commission had approved thirty-two subdivision plats
that contravened the 1976 ordinance. Id. The trial court found that
the Commission was estopped from denying Tinkles proposal because it had previously approved
subdivision plats even though they violated the ordinance. Id. at 419.
Our court disagreed and held [b]ecause the 1976 ordinance was not only accessible
but known to the Tinkles, their estoppel claim must fail. Id. at
420. Further, we noted that the denial of Tinkles application for plat
approval did not threaten any public interests, but only those interests belonging to
Tinkle. Id. at 421.
A. Whether Brown County was estopped from challenging Booes industrial use of
Brown County argues that the trial court erred when the court determined that
it was estopped from challenging Booes industrial use of his property. Specifically,
Brown County contends that as evidenced by his three applications for special exceptions,
Booe was well aware of the zoning ordinance. It also argues that
Booe failed to demonstrate that he lacked knowledge of or means of knowledge
of the public records establishing the existence and location of County Road 169.
At trial, Booe was asked how long County Road 169 had been a
road. He responded:
I have never heard of one sixty nine until the prior date before
the . . . the plat had been signed. Thats ah, Heritage
Hills plat. Now it did not show up on my personal deed
of the . . . the original farm ah, I was aware to
a lawsuit that was constructed back prior years from a neighbor behind us
that had a . . . a fifteen foot easement, legal easement,
it was granted by a Judge and that we had a problem with
this going through property. We had to show it dedicated on the
plat as an easement through the . . . through the mill property.
Tr. p. 95.
Booes 1975 application for a special exception contained a hand drawn map of
the property at issue, which denoted the road running along the side of
the sawmill as a private road. Booes testimony and his hand drawn
map of his property are evidence of his belief that County Road 169
was merely an easement. The substance of the aforementioned 1978 lawsuit indicates
apparent confusion as to the existence and location of County Road 169.
For all these reasons, Booes belief that County Road 169 was merely an
easement at the time he was granted the special sawmill exception in 1976
was not unreasonable.
Although the 1978 lawsuit established the location of County Road 169, Booe, who
was not a party to the lawsuit and who had only limited knowledge
of the lawsuit, continued to believe that the road was an easement as
is reflected on his North of Gnaw Bone subdivision plat. Later, in
1995, the Plan Commission approved Booes North of Gnaw Bone plat, which included
the notation that Tract I-1 was zoned industrial, without questioning the lack of
dedication of County Road 169. The Plan Commission asked Booe to dedicate
County Road 169 on his 1998 Heritage Hills Subdivision plat, which he did,
noting that the approximate location of Public Road # 169 is over Aaron
Drive as easement labeled L, M, N. Ex. Vol., Plaintiffs Ex. I.
Also, prior to final approval of the plat, the Plan Commission asked
Booe to redraw the boundaries of Tract #6 to accommodate County Road 169
and the industrial building; making Tract #6 residential, which Booe did. Ex.
Vol., Plaintiffs Ex. EE. Therefore, in reviewing the plat prior to approving
it, the Plan Commissioners must have noted the proximity of County Road 169
to Tracts I-1, I-1A, and I-1B, yet they approved the plat, which contained
the notation that those tracts were zoned industrial.
As in Tinkle, there was evidence presented at trial that Booe had knowledge
of the zoning ordinance, and therefore, had knowledge that any property within 300
feet of the centerline of a county road was zoned R-2, a district
in which general and light industrial uses are not permitted. However, Brown
County failed to establish that Booe was aware of the location and existence
of County Road 169, until he was informed that he must dedicate it
on his Heritage Hills subdivision plat.
See footnote The Plan Commission was aware of
the location of County Road 169 at the time that both of Booes
plats were submitted, the first for the North of Gnaw Bone subdivision and
later, for the Heritage Hills subdivision; and the Commission approved those plats, which
contained tracts noted as industrial in close proximity to County Road 169.
Further, since 1974, several Commissioners and representatives of the county have observed the
operation of Booes sawmill, and Booe has performed custom work for both the
county and for members of the county government. Tr. pp. 100-01.
Brown Countys continued silence yet actual knowledge of the sawmill operation and approval
of Booes plats are facts more closely akin to the facts and circumstances
Equicor, than those in Tinkle. Therefore, given Booes understandable confusion over
the location and existence of County Road 169, and Brown Countys affirmative acts
and nearly thirty-year silence concerning any possible zoning violation with regard to the
location and operation of the sawmill, we agree with Booe that Brown County
is estopped from challenging Booes industrial use of his property.
Whether Brown County was estopped to deny Breckemeyer the use of
his property for an industrial purpose
Brown County argues that Beckemeyer failed to establish an estoppel defense because he
was aware or had the means to know that Tract I-1A was zoned
R-2, and therefore, could not be used for any industrial purpose. In
support of its argument Brown County primarily relies on a letter Beckemeyer received
prior to purchasing the property from Dan Harden, an employee of the Plan
Commission (the Harden letter). That letter states:
The special exception granted for sawmill in FR zoning, is granted for the
property not the owners as per B.C. zoning ordinance and state statutes.
This also allows woodworking in this and any zoning district. This property
was given FR zoning in error, the zoning is R-2.
Appellants App. p. 50.
IV. De Facto Rezoning of the Booe Property
Beckemeyer stated at trial that his understanding from the letter was that woodworking
was permitted on Tract I-1A. At trial, he testified that he did
not know what R-2 meant, and did not attempt to discover what it
meant. Tr. pp. 121-22. However, he also stated that he was
aware that every county has a zoning ordinance. Tr. p. 123.
Prior to his purchase of the property, Beckemeyer knew that Booe operated a
sawmill in the area. Tr. p. 114. Also, the real estate
listing for the property described a light industrial pole barn situated on the
property. Ex. Vol., Defendants Ex. 4. When deciding whether to purchase
Tract I-1A, Beckemeyer examined the recorded Heritage Hills subdivision plat approved by the
Plan Commission, which noted that Tract I-1A was zoned industrial. Also, Beckemeyer
testified that every document he reviewed pertaining to Tract I-1A described it as
an industrial piece of property, including the property tax statement from the Assessors
office. Tr. pp. 115-16.
Although the Harden letter indicates that Tract I-1A is zoned R-2, the letter
does not address the potential consequences that the R-2 zoning designation has on
the special sawmill exception. In fact, the letter states that the special
exception allows woodworking in this and any zoning district. This statement could
be interpreted by a reasonable person to mean that regardless of whether Tract
I-1A is zoned FR or R-2, the special exception applies to that piece
of property. Therefore, we disagree with Brown Countys argument that the Harden
letter adequately informed Beckemeyer (or gave him the means to know) that Tract
I-1A could not be used for any industrial purpose. To the contrary,
in conjunction with the recorded Heritage Hills plat, Beckemeyer could and did reasonably
rely on the Harden letter to determine that the special exception applied to
Given Beckemeyers reliance on the recorded subdivision plat, the Harden letter, and property
tax assessment, and his knowledge of Booes prior approved use of the property,
we agree with the trial court that Beckemeyer did not know or have
the means to know that Tract I-1A could not be used for an
industrial purpose. Under these facts and circumstances, Brown County is estopped from
challenging Beckemeyers industrial use of his property.
C. The Public Interest Requirement
It is important to note that in Equicor, our supreme court did not
apply the generally accepted principal that the defense of estoppel cannot be applied
against a governmental entity unless it is in the public interest to do
so. See Tinkle, 748 N.E.2d at 420. The trial court also
noted the absence of any discussion of the public interest in Equicor in
its findings of fact, but found that a public interest had been established.
We agree. The public clearly has an interest in the reliability
of recorded documents, such as subdivision plats, and in relying on the Countys
affirmative actions over a period of more than twenty years.
The facts of this case are clearly distinguishable from the silent acquiescence in
Tinkle where the Plan Commission had previously allowed subdivisions contrary to the zoning
ordinance and then disapproved a plat that violated the ordinance. Id. at
420-21. In this case, the County affirmatively acted many times, including granting
the special exception and approving the two, different subdivision plats. Also, the
County was well aware of the character of Booes nearly thirty-year use of
his land, and in fact purchased building materials manufactured at Booes sawmill.
Reliance on a governmental entitys affirmative acts is a sufficient public interest to
warrant the application of the estoppel defense. Id. at 421; see also
Advisory Bd. of Zoning Appeals of City of Hammond v. Found. For Comprehensive
Mental Health, Inc., 497 N.E.2d 1089, 1092 (Ind. Ct. App. 1986) ([W]e find
that the public interest will be threatened in this case if the city,
under its ordinance, as written, is allowed to issue building permits to property
owners who rely on the permits and expend large sums of money, only
to be informed at the last minute that they cannot occupy the building
for which they expended the funds.).
In his counterclaim, Beckemeyer alleged that approval of the Heritage Hills subdivision plat
containing a designation of Tract I-1A as being zoned industrial constitutes a de
facto rezoning of Tract I-1A to industrial. Appellants App. p. 48.
In its findings of fact and conclusions of law, the trial court determined:
With respect to Beckemeyers counterclaim for declaratory judgment, Beckemeyer is entitled to a
judgment that Tract I-1A is zoned industrial. The actions of plaintiffs and
their agents were affirmative acts upon which Beckemeyer relied to his detriment.
Further, the recording of the Heritage Hills plat constituted an official act of
plaintiffs the binding effect of which was to designate Tract I-1A as an
industrially zoned tract.
Appellants App. p. 16. Brown County argues that this finding is contrary
to law because [d]e facto rezoning is not authorized by Indiana law.
Br. of Appellant at 19.
Rezoning is a legislative process. Bryant v. County Council of Lake County,
720 N.E.2d 1, 4 (Ind. Ct. App. 1999), trans. denied. Statutory provisions
regulating municipal zoning ordinances, and the procedures prescribed for rezoning are found at
Indiana Code sections 36-7-4-600 through 699. In the rezoning process,
[t]he plan commission serves in an advisory capacity. In authorizing advisory plan
commissions, the General Assembly did not intend to clothe them with the power
to rezone land. The decision of the local legislature to enact a
rezoning ordinance is primarily a legislative determination. The power of the plan
commission does not derogate from the legislative power of the local legislative body
to enact or amend zoning ordinances. The plan commission does not have
the power or the duty to enact ordinances. See Ind. Code §
36-7-4-401 (duties of the plan commission); Ind. Code § 36-7-4-405 (plan commission shall
make recommendations to legislative body).
City of Anderson v. Irving Materials, Inc., 530 N.E.2d 730, 733 (Ind. 1988)
(internal citations omitted). Conclusion
The Plan Commission does have the authority to render decisions concerning and approve
plats, replats, and amendments to plats of subdivisions, see Ind. Code § 36-2-4-405
(1997), but the Commission clearly does not have the authority to rezone land.
Therefore, we agree with Brown County that the trial court erred when
it found that approval of the Heritage Hills subdivision plat effectively rezoned Tract
I-1A. Under the facts and circumstances of this case, Booes and Beckemeyers
current uses are non-conforming uses that Brown County is estopped from preventing.
Because of its affirmative actions, including granting the special sawmill exception, approving the
subdivision plats, and knowledge of Booes nearly thirty-year use of his property, Brown
County is estopped from challenging Booes and Beckemeyers current industrial uses of Tract
I-1 and Tract I-1A, respectively. However, the trial court erred when it
determined that Tract I-1A was effectively rezoned industrial when the Plan Commission approved
the Heritage Hills subdivision plat.
Affirmed in part and reversed in part.
BAKER, J., and RILEY, J., concur.
The issues outside of the pleadings that the County attempted to raise
by filing the Trial Rule 15(B) motion were 1) whether the Countys action
in granting the sawmill special exception was ultra vires and void; 2) whether
Booe had established a light industrial use of his property, which was separate
and distinct from a general industrial sawmill use, in violation of the zoning
ordinance; 3) whether Beckemeyer had established a general industrial use of his property,
which was unrelated to Booes sawmill use, in violation of the zoning ordinance;
and 4) whether Booe and Beckemeyer have established an industrial park in a
Residential 2 district in violation of the zoning ordinance. These issues and
the issue of whether the trial court erred when it denied the Trial
Rule 15(B) motion are mooted by our discussion and decision concerning Booes and
Beckemeyers estoppel defenses.
Footnote: We note that today we also hand down our decision in
Bed & Breakfast, LLP v. Brown County Area Plan Commission, et al., No.
07A01-0206-CV-201 (Ind. Ct. App. May 21, 2003) concerning Brown Countys land use practice
Footnote: All citations to the Brown County Zoning Ordinance are to the Ordinance
adopted in 1989. The Ordinance was originally adopted in 1965, and the
1965 Ordinance was in effect when Booes special exception was granted. Those
sections of the Ordinance addressed in this appeal remained substantially unchanged when the
Ordinance was readopted in 1989.
As noted previously, maps of the area are very vague, at best,
concerning the exact location of County Road 169.
Footnote: The facts of this case are also similar to those in
of Zoning Appeals, City of Valparaiso v. Beta Tau Housing Corp., 499 N.E.2d
780 (Ind. Ct. App. 1986). Although in that case, our court resolved
the appeal in its discussion of the doctrine of laches, see id. at
782, in a subsequent opinion, we determined that upon closer examination of the
discussion in Beta Tau, the doctrine of equitable estoppel was actually applied.
Harbour Town Assocs., Ltd., v. City of Noblesville, 540 N.E.2d 1283, 1288 (Ind.
Ct. App. 1989).
In Beta Tau, the board had actual knowledge that Beta Tau operated a
fraternity house on the property in 1971 and again in 1974. Further,
despite its knowledge, the board did not contact Beta Tau regarding a zoning
violation until 1980 and did not file an enforcement action until 1985.
In 1983, when Beta Tau applied for the special exception, the city granted
Beta Tau a special exemption. The grant expressly authorized Beta Tau to
continue its use of the property which the city later asserted was illegal
under the Code. Clearly, the city's acquiescence was a positive action and
not mere passive inaction. Lastly, Beta Tau was prejudiced given the fact
that it expended approximately $15,000 to remodel its property.