Court of Appeals of Indiana |Opinion 39A01-1602-MI-401| May 23, 2017 Page 1 of 8

ATTORNEYS FOR APPELLANT

William Joseph Jenner

David R. Sutter

Jenner, Pattison, Sutter & Wynn, LLP

Madison, Indiana

ATTORNEY FOR APPELLEES

Mary J. Stotts

Madison, Indiana

IN THE

COURT OF APPEALS OF INDIANA

City of Madison, Indiana,

Appellant-Defendant,

v.

William L. Demaree and Betty 

K. Demaree,

Appellees-Plaintiffs.

May 23, 2017

Court of Appeals Case No.

39A01-1602-MI-401

Appeal from the Jefferson Circuit 

Court.

The Honorable W. Gregory Coy, 

Special Judge.

Cause No. 39C01-1103-MI-221

Sharpnack, Senior Judge

Statement of the Case

[1] The City of Madison appeals the trial court’s reversal of the Madison City 

Council’s denial of the Demarees’ application to rezone a piece of property. 

We reverse and remand with instructions to affirm the decision of the City 

Council.
Court of Appeals of Indiana |Opinion 39A01-1602-MI-401| May 23, 2017 Page 2 of 8

Issue

[2] The City presents one question for our review: whether the trial court erred by 

reversing the City Council’s decision to deny the Demarees’ application to 

rezone and, in doing so, applied an incorrect standard of review.

Facts and Procedural History

[3] The Demarees own real property in Madison, Indiana that is zoned R4 

(residential). In May 2010, they filed an application with the City of Madison 

Planning Commission seeking to rezone the property from R4 to GB (general 

business). The application was initially heard by five of the nine members of 

the Planning Commission on June 7, 2010, at which time the Planning 

Commission voted to give the application an unfavorable recommendation. 

The Demarees then appeared before the Madison City Council. The City 

Council asked the Demarees to return to the Planning Commission for a 

recommendation from the full board.

[4] The Demarees’ application was tabled by the Planning Commission at both the 

August and September meetings. On October 4, 2010, the Demarees’ 

application was heard by the Planning Commission and given a favorable 

recommendation.

[5] On January 4, 2011, the Demarees’ application to rezone their property was 

given its first reading before the City Council. Some members of the City 

Council expressed concern about the rezoning request and requested additional 

information.
Court of Appeals of Indiana |Opinion 39A01-1602-MI-401| May 23, 2017 Page 3 of 8

[6] The request to rezone was given a second reading at the City Council meeting 

on January 18, 2011. At that meeting, the Council heard comments from 

residents and received a petition signed by residents opposing the rezoning.

[7] A third reading of the rezoning request was held at the City Council meeting on 

February 8, 2011. The Council voted 5-2 against the Demarees’ request.

[8] On March 9, 2011, the Demarees filed a complaint in the trial court requesting 

a reversal of the City Council’s decision. The City of Madison filed an answer, 

and the trial court issued an order on January 25, 2016, reversing the City 

Council’s decision and granting the Demarees’ application to rezone their 

property. The court issued a nunc pro tunc order on April 11, 2016. The City 

of Madison now appeals.

Discussion and Decision

[9] As a preliminary matter, we observe that the Demarees did not file an 

appellees’ brief. Where an appellee fails to file a brief, we do not undertake to 

develop arguments on that party’s behalf; rather, we may reverse upon a prima 

facie showing of reversible error by the appellant. Morton v. Ivacic, 898 N.E.2d 

1196, 1199 (Ind. 2008). Prima facie error is error “at first sight, on first

appearance, or on the face of it.” Front Row Motors, LLC v. Jones, 5 N.E.3d 753, 

758 (Ind. 2014). This “prima facie error rule” relieves this Court from the 

burden of controverting arguments advanced for reversal, a duty which remains 

with the appellee. Simek v. Nolan, 64 N.E.3d 1237, 1241 (Ind. Ct. App. 2016).
Court of Appeals of Indiana |Opinion 39A01-1602-MI-401| May 23, 2017 Page 4 of 8

[10] The City contends that the trial court applied the wrong standard of review 

when it reviewed the City Council’s zoning decision. Rezoning is a legislative 

process. Borsuk v. Town of St. John, 820 N.E.2d 118, 122 (Ind. 2005). The 

decision whether to rezone a particular piece of property is a matter left to the 

sound discretion of the local legislative body. City of Crown Point v. Misty Woods 

Props., LLC, 864 N.E.2d 1069, 1075 (Ind. Ct. App. 2007).

[11] There is no provision for an appeal of a local legislative body’s denial of a 

rezoning request. Bd. of Comm’rs of Cnty. of Vanderburgh v. Three I Props., 787 

N.E.2d 967, 976 (Ind. Ct. App. 2003). Rather, the procedure for review of such 

legislative action is to bring a suit for declaratory judgment or other similar 

attack. Id. Because the action is “legislative” and not “judicial” in nature, the 

reviewing court is much more limited in its scope of review. Id. Accordingly, 

review of a rezoning decision is limited to constitutionality, procedural 

soundness, and whether the decision is arbitrary or capricious. Borsuk, 820 

N.E.2d at 122. A rezoning decision is arbitrary and capricious if the legislative 

body engaged in willful and unreasonable action without consideration and in 

disregard of the facts or circumstances of the case. City of Crown Point, 864 

N.E.2d at 1075-76. Further, a reviewing court will not intervene in the local 

legislative process provided that it is supported by some rational basis. Id. at 

1076.

[12] Here, in reversing the City Council’s decision, the trial court relied on statutes

that are inapplicable to this case. Specifically, in its order the trial court cited 

Indiana Code section 34-13-6-4(a), (b), and (f) (1998) and Indiana Code section 
Court of Appeals of Indiana |Opinion 39A01-1602-MI-401| May 23, 2017 Page 5 of 8

34-13-6-5(a) and (b) (1998). The whole of Indiana Code chapter 34-13-6 is 

inapplicable to this case because it concerns appeals from actions of 

municipalities where an appeal is allowed by statute. See Ind. Code § 34-13-6-1(a)

(1998). As we have noted, there is no provision in our state statutes for an 

appeal of a legislative body’s denial of a rezoning request. See Bd. of Comm’rs of 

Cnty. of Vanderburgh, 787 N.E.2d at 976. 

[13] Moreover, although we have determined that, as a whole, Indiana Code 

chapter 34-13-6 is inapplicable to this case, we specifically note the 

inapplicability of Indiana Code section 34-13-6-4(b). This statute provides for a 

de novo standard of review for appeals under this chapter, and the trial court 

cited this statute as its basis for a de novo review of the Demarees’ rezoning 

request. This is incorrect. The standard to be applied to the review of a 

rezoning determination is whether the decision is arbitrary or capricious. See 

Borsuk, 820 N.E.2d at 122.

[14] We now turn to whether the City Council’s decision in denying the Demarees’ 

rezoning request was arbitrary and capricious. In reviewing that decision, we 

are mindful of the factors to be considered. Indiana Code section 36-7-4-603

(1986) provides:

In preparing and considering proposals [regarding rezoning], the 

plan commission and the legislative body shall pay reasonable 

regard to:

(1) the comprehensive plan;

(2) current conditions and the character of current structures and 

uses in each district;
Court of Appeals of Indiana |Opinion 39A01-1602-MI-401| May 23, 2017 Page 6 of 8

(3) the most desirable use for which the land in each district is 

adapted;

(4) the conservation of property values throughout the 

jurisdiction; and

(5) responsible development and growth.

[15] At their June 7 meeting, the Planning Commission received information on and 

discussed the area’s traffic volume, drainage issues, privacy issues, and property 

values.

[16] In October, the Planning Commission considered the presentation of the 

Demarees’ counsel as well as the concerns of residents. The Commission heard

and contemplated evidence of the character of current structures in the area, 

issues concerning traffic ingress and egress, the best use of the property, traffic 

congestion, property values, the comprehensive plan for the area, drainage 

issues, and privacy issues.

[17] At the City Council Meeting on January 4, 2011, the city attorney discussed the 

statutory procedure regarding the Council’s consideration of a zoning 

amendment. In addition, drawings and cost estimates were requested for 

studies that were done on the intersection at the affected area, and the 

Demarees’ application to rezone was given its first reading.

[18] The City Council met on January 18, 2011, at which time the application to 

rezone was given its second reading. Counsel for the Demarees made a 

statement in which she addressed the character of the structures in the affected 

area and the comprehensive plan of the area. Residents spoke of their concerns 
Court of Appeals of Indiana |Opinion 39A01-1602-MI-401| May 23, 2017 Page 7 of 8

of having a business or businesses in the immediate area of their residential 

properties, not the least of which were traffic congestion, a dangerous 

intersection, and business traffic flowing through the residential area. The 

Council was also presented with a petition signed by residents against the 

rezoning. The Council deliberated these issues as they were raised by the 

interested parties.

[19] The Demarees’ rezoning request was given its third reading at the February 8 

City Council meeting, and the Council voted to deny the Demarees’ request. 

Prior to voting, one Council member addressed those present and stated that his 

vote was primarily based on traffic safety in the area.

[20] Thus, the evidence indicates the Planning Commission and the City Council 

received information about, heard comment on, and weighed and discussed all 

of the factors required to be considered by Indiana Code section 36-7-4-603. 

The balancing of these factors suggested to the City Council that this rezoning 

was not appropriate. These concerns provide a rational basis for the City of 

Madison’s decision to deny the Demarees’ rezoning application, and therefore 

it is not arbitrary and capricious.

Conclusion

[21] For the reasons stated, we conclude the trial court applied an incorrect standard 

of review to the decision of the City Council and erred by reversing the City 

Council’s decision to deny the Demarees’ application to rezone. We reverse 
Court of Appeals of Indiana |Opinion 39A01-1602-MI-401| May 23, 2017 Page 8 of 8

the trial court and remand with instructions to affirm the decision of the City 

Council denying the request to rezone.

[22] Reversed and remanded with instructions.

Crone, J., and Brown, J., concur.