Leo B. Pilachowski, Appellant-Petitioner v. City of Bloomington Board of Zoning Appeals, Appellee-Respondent (2024)

MEMORANDUM DECISION

[1] Leo Pilachowski (“Landowner”) appeals, pro se, and the City of Bloomington (“the City”) cross-appeals, from a judgment partially upholding and partially vacating a zoning enforcement action of the City's Board of Zoning Appeals (“the Board”). The consolidated and restated issues are:

I. Whether Indiana Code section 36-9-36-17 (“Barrett Law”) provides the exclusive means by which municipalities may require property owners to construct sidewalks;

II. Whether substantial evidence supported the Board's determination that Landowner violated a requirement to plant street trees; and

III. Whether the City waived any challenge to the vacation of a notice of violation issued in March 2023.

[2] We affirm in part and reverse in part.

Facts and Procedural History

[3] In 2021, Landowner initiated plans to construct a single-family residence on property he owned in the City (“the Property”). Before submitting permit applications, Landowner engaged in preliminary discussions with the City's officials regarding two requirements in the City's Unified Development Ordinance (“UDO”): (1) construction of a sidewalk along South High Street; and (2) planting of street trees at specified intervals along the Property's frontage. On March 30, 2021, Landowner emailed the City Attorney and asserted that, if the City desired a sidewalk as part of Landowner's residential development, the City was obligated to adopt a sidewalk requirement using the processes specified in Barrett Law as opposed to through an exercise of the zoning power. On May 9, 2021, Landowner emailed City Planning staff regarding the street tree requirement. Citing an exception in the UDO allowing substitution of existing trees, Landowner sought to “substitute the tree credits of three existing qualified deciduous trees for the required street trees[.]” Appellant's App. Vol. 3 p. 15. Landowner added: “We will most probably add more trees on the site along the adjacent streets but we will wait for a detailed landscape that will not be started until the house is completed so that the designed [sic] can see the actual finished on-site conditions.” Id.

[4] On June 16, 2021, Landowner submitted a site plan to the City. The site plan denoted the location and dimension of sidewalks. Near the top of the site plan, there was the following typewritten note: “Existing west walnut, honeylocust [sic], and hickory trees to count toward the street tree requirement[.]” Id. at 69, 80. On July 7, 2021, City Planning staff reviewed the plan and sent Landowner an email requesting one modification— “the sidewalk width need[ed] to be adjusted to 6’ wide.” Id. at 20. After Landowner made this change, the City approved the site plan. Construction proceeded, but Landowner did not build a sidewalk along an adjacent street. Landowner also did not plant street trees.

[5] On July 8, 2021, the City issued a Certificate of Zoning Compliance that included conditions requiring “[a] 6’ concrete sidewalk and tree plot ․ along the entire property frontage[.]” Id. at 63. On February 17, 2023, City Planning staff issued a determination that Landowner violated the UDO by (1) failing to install sidewalks as set forth in the site plan and (2) failing to plant street trees. Id. at 27. In this determination, City Planning staff noted these requirements “were shown on the approved site plan” and “were also noted as a condition of approval on the Certificate of Zoning Compliance[.]” Id. Landowner appealed this determination to the Board on February 20, 2023. During the pendency of that appeal, on March 10, 2023, the City issued a formal notice of violation citing the same alleged violations. Landowner then filed a second appeal challenging the March notice. The Board conducted a hearing on April 20, 2023, addressing Landowner's appeal of the February determination but not the March determination. Following the hearing, the Board determined that Landowner violated both requirements.

[6] Landowner pursued judicial review on May 22, 2023. Following a November 29, 2023 hearing, the trial court took the matter under advisement. On March 20, 2024, the trial court issued an order upholding the Board's determination that Landowner violated the sidewalk requirement. As to the street tree requirement, although the trial court found insufficient evidence of a violation based on the City's approval of the site plan and Landowner's “understandable confusion over the status of the trees,” Appellant's App. Vol. at 24, the court nonetheless ordered Landowner to “install street trees in compliance with” the UDO. Id. at 25. The trial court also directed the Board to “vacate and dismiss the Notice of Violation issued on March 10, 2023.” Id. Landowner filed a motion to correct error on April 17, 2024. On May 15, 2024, the trial court partially granted the motion, correcting technical matters but declining to revisit its ultimate rulings. Landowner now brings this pro se appeal, and the City cross-appeals.

Discussion and Decision

[7] We begin by noting that Landowner, a pro se litigant, is “held to the same standards as a trained attorney and is afforded no inherent leniency simply by virtue of being self-represented.” Zavodnik v. Harper, 17 N.E.3d 259, 266 (Ind. 2014). Here, Landowner appeals following the denial of his motion to correct error. In general, we review a ruling on a motion to correct error for an abuse of discretion, looking to whether the ruling was “unlawful, illogical, or otherwise unreasonable.” Expert Pool Bldrs., LLC v. Vangundy, 224 N.E.3d 309, 312 (Ind. 2024) (citing Berg v. Berg, 170 N.E.3d 224, 227 (Ind. 2021)). “But, where a ruling turns on a question of law, our review is de novo.” Id.

[8] Landowner initiated judicial review of the Board's decision pursuant to Indiana Code chapter 36-7-4. Upon judicial review, we apply the same standard as the trial court. See City of Bloomington Bd. of Zoning Appeals v. UJ-Eighty Corp., 163 N.E.3d 264, 267 (Ind. 2021). That is, to the extent the challenge turns on a question of law—such as the interpretation of a statute or a zoning ordinance—our review is de novo. Id. In conducting our review, we do not reweigh evidence or reassess witness credibility. St. Charles Tower, Inc. v. Bd. of Zoning Appeals of Evansville-Vanderburgh Cnty., 873 N.E.2d 598, 600 (Ind. 2007). Rather, “we accept the facts as found by the [Board] if they are supported by substantial evidence.” Id. Pursuant to Indiana Code section 36-7-4-1615(d), we grant relief only if the challenger was prejudiced by a zoning decision that was:

(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;

(2) contrary to constitutional right, power, privilege, or immunity;

(3) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right;

(4) without observance of procedure required by law; or

(5) unsupported by substantial evidence.

[9] Whether we are interpreting a statute or an ordinance, the same rules apply. Noblesville, Ind. Bd. of Zoning Appeals v. FMG Indianapolis, LLC, 217 N.E.3d 510, 513–14 (Ind. 2024) (“We do not defer to agency decisions on legal questions.”). Our primary goal is to determine and give effect to the intent of the legislature. ESPN, Inc. v. Univ. of Notre Dame Police Dep't, 62 N.E.3d 1192, 1195 (Ind. 2016). We begin with the plain language of the law, which we read within the context of the legislative scheme. Id. at 1196. We presume the legislature intended for the logical application of the language used. Id. Moreover, to the extent possible, we seek to harmonize potentially conflicting provisions. See Ind. Alcohol & Tobacco Comm'n v. Spirited Sales, LLC, 79 N.E.3d 371, 376 (Ind. 2017).

I. Enforceability of Sidewalk Requirement

[10] Landowner does not dispute that the UDO required him to construct the sidewalk and that he failed to comply with that requirement. Rather, Landowner argues that the UDO's requirement was unenforceable because Barrett Law provides the exclusive means for a municipality to compel sidewalk construction, and the City did not follow those procedures. To resolve this issue, we must examine Barrett Law and its relationship to a separate statutory scheme conferring zoning authority to municipalities.

[11] The General Assembly broadly empowered municipalities to “regulate how real property is developed, maintained, and used,” specifically contemplating “requirements for site conditions, signs, and nonstructural improvements, such as parking lots, ponds, fills, landscaping, and utilities.” I.C. § 36-7-4-601(d)(2). Independent of statutes conferring zoning authority, Barrett Law specifically addresses the construction or repair of sidewalks and curbs. Under Barrett Law, “[t]he works board may require the owners of abutting property to construct or repair the owners’ own sidewalks or curbs if the works board: (1) desires to improve or repair any sidewalks or curbs in the unit; and (2) adopts a final resolution to that effect.” I.C. § 36-9-36-17(a) (emphasis added).

[12] Landowner directs us to Indiana's Home Rule Act, which provides that if there is “a constitutional or statutory provision requiring a specific manner for exercising a power, a unit wanting to exercise the power must do so in that manner.” I.C. § 36-1-3-6(a). Landowner argues that Barrett Law sets forth a specific manner for exercising the authority to mandate sidewalk construction, claiming this law controls over the more general zoning authority. Landowner maintains that the City did not comply with Barrett Law in adopting the sidewalk requirement, and therefore, the requirement was unenforceable.

[13] In arguing that Barrett Law sets forth a “specific manner” for exercising municipal power over sidewalk construction—thereby necessitating municipal action under Barrett Law, in compliance with the Home Rule Act—Landowner primarily relies on Fort Wayne Metropolitan Human Relations Comm'n v. Marathon Gas Station, 926 N.E.2d 1085 (Ind. Ct. App. 2010) (“Fort Wayne MHRC”). That case arose in the civil rights context, where our legislature adopted a statute regarding circumstances when a civil rights case could bypass review by the human relations commission and proceed directly to review by a trial court. The statute required both parties’ consent for removal, but the local commission adopted a rule allowing for removal upon one party's unilateral request. Referring to the Home Rule Act, we concluded that the statute specifically controlled removal procedures in civil rights cases, and the specific statute on the topic precluded the commission's attempted exercise of authority. Id.

[14] Unlike the removal provision that mandated a specific procedure in Fort Wayne MHRC, Barrett Law consistently uses permissive language—using “may” rather than “shall” throughout—which suggests that Barrett Law was not intended to operate as an exclusive mandate on the topic of sidewalk construction. See I.C. § 36-9-36-17(a) (“works board may require”); I.C. § 36-9-36-2(b) (improvements “may be made under this chapter”). Furthermore, the zoning statutes provide their own specific procedures for adopting and enforcing development requirements, including detailed provisions for adopting zoning ordinances, see I.C. § 36-7-4-601–610, and specific enforcement mechanisms, see I.C. § 36-7-4-1000–1015. We therefore disagree with Landowner that Barrett Law governs. Rather, our review of each statutory scheme reveals that our legislature established complementary procedures serving different purposes. Whereas the zoning power allows municipalities to ensure adequate infrastructure as properties undergo development, Barrett Law provides an optional mechanism through which municipalities may initiate and manage sidewalk construction—or repair—anywhere in their jurisdiction, regardless of whether property owners are currently pursuing developmental approval. This reading harmonizes the statutory schemes while preserving their distinct purposes. Indiana's Barrett Law provides local governmental units with an optional procedure and funding mechanism to undertake infrastructure improvements, but Barrett Law does not provide the exclusive means for such projects.

[15] Based on our review of the statutes, we conclude that Landowner failed to establish any defect in the adoption of the sidewalk requirement. We therefore affirm the determination that Landowner violated the sidewalk requirement.

II. Tree Substitution Request

[16] The City asks us to reinstate the Board's determination that Landowner violated the street tree requirement. On appeal, Landowner claims there was insufficient evidence of a violation, and he challenges the order prospectively requiring him to plant trees. To resolve these issues, we must examine the sufficiency of the evidence and the legal effect of the City's site plan approval.

[17] The UDO requires the planting of street trees along certain streets, but also provides that the City “may permit the substitution of required landscape with existing vegetation.” Bloomington, Ind., Municipal Code § 20.04.080(c)(2)(F)ii (2021). The record reflects that Landowner sought the City's approval of this type of substitution through the site plan approval process. First, on May 9, 2021, Landowner emailed the City's staff expressing his intent “to substitute the tree credits of three existing qualified deciduous trees for the required street trees.” Appellant's App. Vol. 3 p. 15. Then, Landowner submitted a site plan containing an explicit notation regarding the substitution of existing trees: “Existing west walnut, honeylocust [sic], and hickory trees to count toward the street tree requirement.” Id. at 69, 80. The City reviewed this plan, requested only a sidewalk-width modification, and then approved the modified plan without objecting to or mentioning the tree substitution request. Id. at 19–20.

[18] On appeal, the City acknowledges that it approved the site plan containing the substitution request and that the UDO gave it discretionary authority to approve such substitutions. See Appellee's Br. p. 26. However, the City maintains that its staff “did not notice [the] one-sentence request to substitute existing trees when [it] approved [the] site plan.”¹ Id. at 26–27. The City attempts to rely on Town of Dyer v. Monaldi, 201 N.E.2d 268 (1964), to withdraw its approval. Yet, Monaldi involved a procedural defect in violation of a statute, where a local authority granted approval without statutorily required prior approvals from other entities. Id. at 269. Here, in contrast, there was no such procedural defect. The UDO gave the City discretionary authority to approve substitution requests, and the record reflects that the City exercised that authority by approving the site plan containing Landowner's explicit request.

[19] Because the City approved Landowner's substitution request through the site plan approval process, there was insufficient evidence to support the Board's finding of a violation. See I.C. § 36-7-4-1614(d)(5). Moreover, the approved site plan, which explicitly noted the substitution of existing trees, governs Landowner's obligations regarding street trees. Thus, although we agree with the trial court's determination that the finding of a violation was not supported by substantial evidence, we reverse that portion of the order requiring Landowner to plant additional trees not required under the approved site plan.

III. March 2023 Notice of Violation

[20] In a brief footnote, the City addresses the trial court's decision to vacate the notice of violation issued on March 10, 2023. That March 2023 notice of violation concerned the same alleged violations set forth in the February 2023 staff determination, which was already the subject of Landowner's pending administrative appeal. See Appellant's App. Vol. 3 pp. 27, 59–60. In a footnote, the City states that it “is not cross-appealing the vacation of the notice of violation as it does not appear that any fines were assessed, and the [Board] and trial court subsequently found that [Landowner] had to comply with the street tree requirement.” Appellee's Br. p. 6 n.1. As earlier discussed, we disagree that Landowner had to comply with the street tree requirement, beyond the parameters of the approved site plan. To the extent the City's footnote suggests that the City is challenging the vacation of the March 2023 notice based on our resolution of the street tree issue, the City has waived this appellate challenge due to its failure to develop cogent reasoning on the issue. See Ind. Appellate Rule 46(A)(8)(a) (requiring “cogent reasoning” supporting each appellate contention); Basic v. Amouri, 58 N.E.3d 980, 984 (Ind. Ct. App. 2016) (identifying waiver for the failure to develop cogent reasoning).

Conclusion

[21] We affirm the trial court's determination that Barrett Law does not preclude the City from requiring sidewalk construction through a proper exercise of its zoning authority. We also affirm the trial court's determination that there was insufficient evidence that Landowner violated the street tree requirement. However, we reverse that portion of the order requiring Landowner to plant additional trees beyond those addressed in the site plan. Finally, the City waived any challenge to the vacation of the March 2023 notice of violation.

[22] Affirmed in part and reversed in part.

FOOTNOTES

1.   The City also suggests that its staff relied on Landowner's “pledge” to plant additional trees, but the record reveals only that Landowner stated he would “most probably add more trees”—an equivocal statement made before submitting the site plan containing the substitution request. Appellant's App. Vol. 3 pp. 15–16.

Memorandum Decision by Judge Foley

Judges Bailey and Bradford concur. Bailey, J. and Bradford, J., concur.