Franklin T. Wike, et al., Appellants-Plaintiffs v. LLC (2025)

MEMORANDUM DECISION

Case Summary

[1] Grandview Solar Project LLC (“GSP”), has obtained a special exception and improvement location permit (“ILP”) to develop a commercial solar project within the two-mile extraterritorial jurisdiction (“ETJ”) of the Town of Grandview (“Town”). Wike and seventy-eight others who own and/or reside on land adjacent to the ETJ (collectively, “Landowners”) filed this lawsuit to prevent the development on the ground that the Town has no authority to exercise zoning jurisdiction in the ETJ. Landowners appeal the trial court order granting summary judgment in favor of GSP and Town (collectively, “Defendants”).

[2] We reverse and remand.

Issues

[3] Landowners raise five issues, which we consolidate and restate as the following three dispositive issues:

I. Whether the designated evidence establishes that Landowners’ lawsuit is an impermissible collateral attack on Town's zoning decisions.

II. Whether the Landowners have standing.

III. Whether the designated evidence establishes that there are no genuine issues of material fact and one party is entitled to judgment as a matter of law.

Facts and Procedural History

[4] In November of 2019, GSP applied to Town for special exception approval of a solar panel project, part of which would be located in “the 2-mile jurisdictional fringe of [Town].” Appellant's App. (hereinafter, “Wike App.”) v. II at 71. The jurisdictional fringe to which the application referred is a two-mile area immediately outside of Town's corporate limits [hereinafter referred to as the “extraterritorial jurisdiction” or “ETJ”]. On December 12, 2019, Town approved the application for the special exception and subsequently confirmed in writing that “[GSP] has all local zoning approvals that are required from the [Town] and Spencer County [hereinafter, “County”], and [GSP] is authorized to commence with the ILP, building permit[,] or other construction-related permit application process.” Id. at 74. On June 23, 2023, GSP filed an application seeking an ILP for the area located in the extraterritorial jurisdiction. Following a public meeting, Town denied the ILP application.

[5] On July 12, 2023, GSP filed a lawsuit (“GSP lawsuit”) in the Spencer Circuit Court seeking, among other things, an order that Town must issue an ILP for the extraterritorial jurisdiction. On September 28, 2023, the special judge issued special findings and a preliminary injunction ordering Town to issue the ILP for the solar project, including the area in the ETJ.

[6] On October 30, 2023, Wike and thirteen others who own and/or reside on land adjacent to the ETJ (“Intervenors”) filed a motion to intervene as of right in the GSP lawsuit. Intervenors alleged that Town lacked jurisdiction over the ETJ and its actions were therefore ultra vires and void. Intervenors asserted their intention to appeal the preliminary injunction. As of November 16, 2023, all parties and Intervenors had briefed the motion to intervene. However, on November 21, the special judge issued a notice that she had “been granted an indefinite leave of absence and the parties may wish to select a new Special Judge to be appointed by the Court.” Id. at 144. On December 1, 2023, before a decision on the motion to intervene or the appointment of a new special judge, GSP and Town filed a joint “Stipulation of Dismissal without Prejudice” pursuant to Indiana Trial Rule 41(A)(1)(b). Id.

[7] On February 2, 2024, Landowners, which group includes Intervenors and sixty-five others who own and/or reside on land adjacent to the ETJ, filed the instant lawsuit in the Spencer Circuit Court, seeking declaratory and injunctive relief. Specifically, Landowners claimed that Town lacked zoning jurisdiction over the ETJ, and, therefore, its zoning decisions as to the ETJ were ultra vires and void, as was its settlement of the GSP lawsuit.

[8] On April 3, 2024, Defendants filed motions to dismiss for failure to state a claim upon which relief could be granted and joined in each other's motions. Defendants argued that Landowners’ lawsuit was an impermissible collateral attack on Town's 2019 special exception decision, which they claimed Landowners should have appealed through the administrative appeal process within thirty days. They also argued that Landowners lacked standing to challenge the settlement in the GSP lawsuit because Landowners were not parties to that suit.

[9] Because GSP's motion to dismiss included exhibits outside the pleadings, the trial court converted the motions to dismiss to motions for summary judgment, pursuant to Indiana Trial Rule 12(B). All parties thereafter designated evidence in support of or in opposition to summary judgment and briefed the same. Town's designated evidence included its “Land Use Planning and Zoning” ordinances, which included its “Comprehensive Plan” and “Zoning Ordinance.” Defs. App. v. II at 86-139. Following oral argument, on July 8, 2024, the trial court issued a one-page “final judgment” granting summary judgment to Defendants without findings or conclusions. This appeal ensued.

Discussion and Decision

Standard of Review

[10] Landowners appeal the trial court order granting summary judgment to Defendants. We review a grant or denial of a motion for summary judgment under the same standard used by the trial court; that is,

[t]he moving party bears the initial burden of making a prima facie showing that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law. Summary judgment is improper if the movant fails to carry its burden, but if it succeeds, then the nonmoving party must come forward with evidence establishing the existence of a genuine issue of material fact. In determining whether summary judgment is proper, the reviewing court considers only the evidentiary matter the parties have specifically designated to the trial court. See Ind. Trial R. 56(C), (H). We construe all factual inferences in the non-moving party's favor and resolve all doubts as to the existence of a material issue against the moving party.

Reed v. Reid, 980 N.E.2d 277, 285 (Ind. 2012) (quotation marks and case citations omitted).

[11] For purposes of summary judgment, a fact is “material” if its resolution would affect the outcome of the case, and an issue is “genuine” if a trier of fact is required to resolve the parties’ differing accounts of the truth, or if the undisputed material facts support conflicting reasonable inferences. Hogan v. Magnolia Health Sys. 41, LLC, 161 N.E.3d 365, 369 (Ind. Ct. App. 2020) (quoting Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014)), trans. denied. In reviewing a summary judgment, we “consciously err[ ] on the side of letting marginal cases proceed to trial on the merits, rather than risk short-circuiting meritorious claims.” Hughley, 15 N.E.3d at 1004.

[12] Moreover, “[w]hen any party has moved for summary judgment, the court may grant summary judgment for any other party upon the issues raised by the motion although no motion for summary judgment is filed by such party.” Ind. Trial Rule 56(B). Thus, “when there are no unresolved facts to be determined, it is appropriate for the appellate court to determine as a matter of law that summary judgment was entered in favor of the wrong party.” Barnes v. Antich, 700 N.E.2d 262, 265 (Ind. Ct. App. 1998) (citation omitted), trans. denied. “Under such circumstances, the appellate court will reverse and remand with instructions that summary judgment be entered in favor of the appellant.” Id.

Collateral Attack

[13] The first basis Defendants rely upon in support of their motions for summary judgment is their claim that Landowners’ lawsuit in the instant case was an impermissible collateral attack on Town's zoning decisions.¹ Essentially, Defendants asserted that Landowners were required to follow the administrative appeal process under Indiana Code Sections 36-7-4-1600 to - 1699 and, because they failed to do so, their challenge in the instant lawsuit is a time-barred impermissible collateral attack.

[14] An appeal taken under Indiana Code Sections 36-7-4-1600 to -1699 “establishes the exclusive means for judicial review of zoning decisions ․ made by a board of zoning appeals.” Ind. Code § 36-7-4-1601. A person who fails to timely object to a zoning decision within thirty days “waives the person's right to judicial review under this chapter.” I.C. § 36-7-4-1604; see also I.C. § 36-7-4-1605. “Thus, a party's failure to [administratively] appeal a zoning decision normally prevents that party from later challenging it” in a collateral attack.² Chapo v. Jefferson Cnty. Plan Comm'n, 224 N.E.3d 971, 978 (Ind. Ct. App. 2024), trans. denied.

[15] However, “[i]t is well settled in Indiana law that a zoning board may not act in excess of the power granted it under the statutes and zoning ordinance, and any acts in excess of these [are] ultra vires and void.” Elkhart Cnty. Bd. of Zoning App. v. Earthmovers, Inc., 631 N.E.2d 927, 929 (Ind. Ct. App. 1994) (internal quotation marks and citation omitted), trans. denied; see also Defs. App. v. II at 110 (Town's Zoning Ordinance 10.06.020.040, providing that “[a]ny permit issued in conflict with provisions of [Town's] ordinance shall be null and void”). Such a “void action is subject to collateral attack at any time.” Chapo, 224 N.E.3d at 978 (internal quotation marks and citation omitted). Moreover, a “decision that is void has no legal effect at any time and cannot be confirmed or ratified by subsequent action or inaction.” Parkview Hosp., Inc. v. Am. Fam. Ins. Co., 151 N.E.3d 1218, 1228 (Ind. Ct. App. 2020) (internal quotation marks and citation omitted), trans. denied.³

[16] Indiana Code Section 36-7-4-205(d) provides that, “[t]o exercise territorial jurisdiction outside the corporate boundaries of the municipality, the municipal plan commission must provide in the comprehensive plan ․ for the development of the contiguous unincorporated area, designated by the commission.” See also I.C. § 36-7-4-205(e) (“[A]n area designated under this section may include any part of the contiguous unincorporated area within two (2) miles from the corporate boundaries of the municipality.”). “Each municipal plan commission ․ that has not adopted ․ a comprehensive plan and ordinance covering the unincorporated areas of the county may, at any time, after filing notice with the [county], exercise or reject territorial jurisdiction over any part of the area within two (2) miles of the corporate boundaries ․ if the municipality is providing municipal services to the area.” I.C. § 36-7-4-205(j) (emphasis added).

[17] Here, the designated evidence demonstrates that neither Town's comprehensive plan nor its zoning ordinance provide for the development of the ETJ, i.e., the two-mile fringe outside the Town's corporate boundaries. See Defs. App. v. II at 90 (Town's Comprehensive Plan, stating it is applicable only to “territory located within the corporate limits of [Town]”); id. at 102 (Town's Zoning Ordinance 10.06.010.060 (47), defining Town's “jurisdiction” as “the incorporated area of the [Town].”). And, while Town may issue “special exceptions” to its zoning under certain circumstances, such special exceptions are only permitted in the zones within Town's jurisdiction (i.e., its incorporated area). Id. at 188. Moreover, Defendants did not designate any evidence establishing that Town provides municipal services to the ETJ such that it has jurisdiction over the area pursuant to Indiana Code Section 36-7-4-205(j).

[18] In short, the designated evidence failed to establish that Town had authority to make the zoning decisions regarding the ETJ that are the subject of the GSP lawsuit and the instant lawsuit. Therefore, Defendants failed to establish that they are entitled to judgment as a matter of law because their actions are ultra vires and void and subject to collateral attack at any time. Defendants failed to carry their burden of showing they were entitled to judgment as a matter of law on the ground that Landowners made an impermissible collateral attack on the zoning decisions related to the ETJ.⁴

Standing

[19] In their summary judgment documents, Defendants also alleged that Landowners lack standing to challenge Town's zoning decisions. “The threshold issue of standing determines whether a litigant is entitled to have a court decide the substantive issues of a dispute.” Solarize Ind., Inc. v. S. Ind. Gas & Elec. Co., 182 N.E.3d 212, 216 (Ind. 2022). To show common-law standing, generally a party must “demonstrate a personal stake in the outcome of the litigation and ․ show that they have suffered or were in immediate danger of suffering a direct injury as a result of the complained-of conduct.” Id. at 217 (quotation and citation omitted).

[20] Landowners have standing to challenge Town's zoning decisions regarding the ETJ. Landowners each own real property and/or reside in Spencer County in proximity to property designated for the solar project in the ETJ. And Landowners all alleged in their verified complaint that development of the project in the ETJ will negatively impact their property values and otherwise cause harm to them and their real estate, including “the destruction of [Landowners’] views and the rural nature of the area where they chose to live, drainage and other environmental harm, and negative impacts to quality of life.” Wike App. v. II at 41. Defendants designated no evidence establishing as an uncontested fact that the solar project will not cause Landowners harm. Therefore, to the extent summary judgment was granted due to a lack of standing, it was improper.

[21] Defendants further asserted that Landowners lacked standing to challenge the settlement of the GSP lawsuit because Landowners were not parties to that suit. Even aside from the equitable consideration that Defendants orchestrated the circumstances that resulted in the dismissal with no ruling on the motion to intervene,⁵ Defendants’ standing claim fails. As already noted, a decision that is void has no legal effect at any time and cannot be confirmed or ratified by subsequent action or inaction. Parkview, 151 N.E.3d at 1228. The settlement of the GSP lawsuit was an attempt to ratify the void zoning decisions regarding the ETJ and, as such, was itself void. See id. Landowners have standing to challenge the judgment in the GSP lawsuit that puts them in immediate danger of suffering a direct injury to their property. Again, Defendants have not designated any evidence establishing as an uncontested fact that Landowners will not suffer harm as a result of the zoning decisions regarding the ETJ, including the summary judgment decision and subsequent Stipulation of Dismissal without Prejudice” pursuant to Indiana Trial Rule 41(A)(1)(b). Id.

Town's Authority Over Extraterritorial Jurisdiction

[22] As discussed above, the designated evidence establishes the genuine issue of material fact that Town did not have zoning authority over the ETJ as provided by a comprehensive plan and zoning ordinance. See I.C. § 36-7-4-205(d). Were a comprehensive plan and ordinance the only method by which Town could exercise such jurisdiction, it would be appropriate to enter summary judgment in Landowners’ favor. See T.R. 56(B); Barnes, 700 N.E.2d at 265. However, such jurisdiction may also be exercised if the municipality provides municipal services to the extraterritorial jurisdiction and has filed notice of the same with the county recorder and county legislative body. I.C. § 36-7-4-205(j). As neither party designated evidence related to the Town's provision of municipal services (or lack thereof) in the ETJ, summary judgment is inappropriate for either party.

Conclusion

[23] Defendants failed to designate evidence establishing that Landowners’ lawsuit is an impermissible collateral attack, that Landowners lack standing, or that Defendants had authority to make zoning decisions regarding the extraterritorial jurisdiction. Therefore, the trial court erred in granting Defendants summary judgment. We reverse and remand for further proceedings consistent with this opinion.

[24] Reversed and remanded.

FOOTNOTES

1.   Town's relevant zoning decisions are the 2024 issuance of an ILP as required by the preliminary injunction in the GSP lawsuit and, to the extent it affected the issuance of the ILP, the 2019 special exception approval.

2.   “A collateral attack is a judicial proceeding pursued to avoid, defeat, evade or deny the validity and effect of a valid judgment or decree.” Chapo v. Jefferson Cnty. Plan Comm'n, 224 N.E.3d 971, 978 (Ind. Ct. App. 2024) (citations and internal quotation marks omitted), trans. denied.

3.   Georgetown Bd. of Zoning Appeals v. Keele, cited by Defendants, is inapposite as it did not involve a void decision by a municipal zoning authority that could be challenged at any time. 743 N.E.2d 301 (Ind. Ct. App. 2001).

4.   Defendants also failed to establish that they are entitled to judgment as a matter of law because Landowners impermissibly seek a declaration that there is a lack of a comprehensive plan or ordinance or a declaration requiring them to “take specific action.” Appellees’ Br. at 25. Landowners do not claim the comprehensive plan and zoning ordinances do not exist, but that they do not authorize the zoning actions taken by Town. Nor do Landowners seek a declaration requiring Defendants to take any specific action; rather, they seek a declaration that the actions Defendants have already taken are ultra vires and void. Moreover, as Landowners point out, Indiana Code Section 34-14-1-1 provides that a declaratory judgment “may be either affirmative or negative in form and effect.”

5.   Given that Landowners asserted an interest relating to the ETJ and that any disposition allowing the solar project to proceed in the ETJ would impair or impede that interest, Landowners likely would have been permitted to intervene as of right. See T.R. 24(A)(2); see also, e.g., In re Paternity of E.M., 654 N.E.2d 890, 892 (Ind. Ct. App. 1995) (noting facts alleged in a motion to intervene must be taken as true). However, Defendants took advantage of the absence of a presiding judge to settle the case before a ruling on the motion to intervene could be made.

Bailey, Judge.

Judges Bradford and Foley concur. Bradford, J., and Foley, J., concur.