Pursuan t to Ind.Appellate Rule 65(D),

this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEYS FOR APPELLANT S : ATTORNEYS FOR APPELLEES : DAVID M. AUSTGEN JAN M. CARROLL TIMOTHY R. KUIPER PAUL L. JEFFERSON MICHAEL J. JASAITIS EDWARD SMID ADAM M. SWORDEN Barnes & Thornburg LLP Augstgen Kuiper & Associates, P.C. India napolis, Indiana Crown Point, Indiana JAMES WIESER Wieser & Wyllie LLP Schererville, Indiana


## IN THE COURT OF APPEALS OF INDIANA

RONALD L. HOFFMAN and ) CHRISTY G. HOFFMAN, and JOHNSON ) SUNNYBROOK FARM, LLC, ) An Indiana Limited Liab ility Company, ) ) Appellants

- Plaintiffs, ) ) vs. ) No. 45A03

- 1206

- PL

- 291 ) LAKE COUNTY INDIANA, a unit of ) l ocal government, it s County Council ) a s l egislative b ody, and its advisory ) Plan Commission ; SINGLETON STONE, ) LLC , an Indiana Limited Liabili ty ) Company ; and LAKE COUNTY TRUST ) CO. #5240, ) ) Appellees

- Defendants. )

APPEAL FROM THE LAKE SUPERIOR COURT The Honorable Calvin D. Hawkins, Judge Cause No. 45D02

- 110 3

- PL

- 232 May 9, 2013 MEMORANDUM DECISION
- NOT FOR PUBLICATION VAIDIK , Judge
Case Summary In late 2010, the Lake County Council (“the County Council”) approved a proposal to rezone 600 acres of land in northern Indiana. Previously an agricultural zone, the County Council’s ruling paved the way for the land’s use as a sto ne quarry. After the County Council approved the rezoning, a group of opposed landowners filed a declaratory

-

judgment action in Lake Superior Court, seeking to invalidate the County Council’s actions. The opposed landowners moved for su mmary judgment, ar guing that their due

- process rights were violated during the rezoning process . Singleton Stone, LLC, (“Singleton”) the proponent of the rezoning, also moved for summary judgment, claiming that the opposed landowners had no standing to challenge certain st ages of the proceedings and the County Council’s actions were legislative ; thus, the opposed landowners were not entitled to due process . The trial court granted Singleton’s
summary - judgment motion , and the opposed landowners now appeal, again arguing the y were denied due process . We conclude that the opposed landowners lack standing to challenge certain stages of the proceedings and were not entitled to due process at the County Council stage, as the County Council was performing a legislative function

. We affirm.3 Facts and Procedural History In January 2010, Singleton filed an application for a zone change with the Lake County Plan Commission (“the Plan Commission”) . Singleton sought to rezone 600 acres of land ( “ the rezoned property”) in Lake County from A

- 1 (Agricultural Zone) to CDD (Conditional Development District) for the op eration of a stone quarry. 1 Ronald and Christy Hoffman own twenty acres of land adjacent to the rezoned property. Sunnybrook Farm, LLC , also owns land adjacent to the rezon ed property

. The Hoffmans and Sunnybrook Farm, LLC (collectively, “ the opposed landowners”) opposed Singleton’s zone

- change proposal

. After receiving Singleton’s application, the Plan Commission provided notice of a hearing on the proposal to allow publ ic comment. 2 The hearing was held on February 17, 2010, and the parties attended and expressed their opinions about the zone

- change proposal. At the conclusion of the hearing, the Plan Commission deferred ruling on the matter for thirty days and schedule d another hearing for March 17, 2010. At the end of the second hearing, the Plan Commission again deferred ruling on the matter, this time for sixty days. Two more public hearings and deferrals followed. Finally, i n September 2010, the Plan Commission d ecided the matter. It forwarded a certified, unfavorable recommendation on Singleton’s proposal to the County Council

. The County Council deferred action on Singleton’s proposal until a special public meeting in November 2010. At the November meeting , the County Council permitted

1 The Lake County Trust Company #5240 is the owner of the rezoned p roperty and is a party to this appeal

.

2 Notice is one issue disputed by the parties. However, due to our resolution of the other issues raised in this appeal, we need not address the issue of notice.4

Singleton’s attorney to advocate for the zone

- change proposal. The County Council also allowed two members of the Plan Commission who voted against the proposal , as well as the Executive Director of the Plan Commission, to s peak on behalf of the opposed landowners

. 3 After hearing from both sides, the County Council deferred action until its meeting the following month. In December 2010, the County Council approved Singleton’s zone

- change proposal by a 6

- 1 vote, enacting Lak e County Ordinance No. 2324 (“the Ordinance”) to effectuate the rezoning

. 4 In January 2011, the opposed landowners filed a declaratory

- judgment action in Lake Superior Court, arguing that the Plan Commis s ion and County Council had violated their due

- proc ess rights by providing inadequate notice and opportunity to be heard, among other things . The opposed landowners asked the trial court to set aside the Ordinance. The parties filed competing motions for summary judgment

. In relevant part, Singleton arg ued that the opposed landowners had no standing to challenge the Plan Commission proceedings because they suffered no legal injury at that stage

— the Plan Commission had forwarded an unfavorable recommendation on Singleton’s proposal to
the County Council , and this was a victory for the opposed landowners . Singleton also argued that the County Council’s actions were legislative and therefore the opposed landowners were not entitled to due process

.

3 Singleton’s brief negatively characterizes its rel ationship with a Plan Commission member who spoke before the Council and references legal proce edings between Singleton and that Plan Commiss ion member. Singleton asks this Court to take judicial notice of those proceedings. See Appellee’s App. p. 8 , n.2 . Because the matter is irrelevant to the issues before this Court, we decline to do so.

4 When its proposal was approved , Singleton executed a written commitment to fulfill twenty

- two zoning commitments for the benefit of the opposed landowners and Lake Coun ty. These commitments pertain to matters such as road improvements and groundwater protection, and were incorporated in the Ordinance.5

After oral argument on the motions, the trial court grante d Singleton’s motion for summary judgment without entering findings or conclusions. See Appellant’s App. p.
13

- 14. The opposed landowners now appea l. We affirm. Discussion and Decision On appeal, the opposed landowners contend that the Plan Commissio n and County Council violated their due

- process rights and the trial court erred by granting Singleton’s
summary - judgment motion. Singleton argues that the opposed landowners lack standing to challenge the Plan Commission proceedings and the County Counci l’s actions were legislative ; therefore , the opposed landowners were not entitled to due process before the County Council

. When reviewing the entry or denial of summary judgment, our standard of review is the same as that of the trial court: summary jud gment is appropriate only where there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Ind. Trial Rule 56(C); Dreaded, Inc. v. St. Paul Guardian Ins. Co. , 904 N.E.2d 1267, 1269 (Ind. 2009). All facts established by the designated evidence, and all reasonable inferences from them, are to be construed in favor of the nonmoving party. Naugle v. Beech Grove City Sch. , 864 N.E.2d 1058, 1062 (Ind. 2007)

. Where the facts are undisputed and the issue is a p ure question of law, we review the matter de novo. Bellows v. Bd. of Comm’ rs of Cnty. of Elkhart , 926 N.E.2d 96, 114 (Ind. Ct. App. 2010) (citation omitted).6 I. Standing The opposed landowners first argue that the Plan Commission violated their due

proce ss rights

. In response to the opposed landowners’ claim, Singleton argues that the Plan Commission forwarded a certified, unfavorable recommendation on the rezoning proposal to the County Council, and this was a victory for the opposed landowners.
Becaus e the opposed landowners suffered no legal injury at this stage, Singleton claims that they have no standing to challenge the Plan Commission’s actions.
This Court has decid ed cases involving a plaintiff’s standing in zoning actions by determining whether the plaintiff was “aggrieved” by the decision at issue

. Bellows , 926 N.E.2d at 114; see also Sexton v. Jackson C nt y . Bd. of Zoning Appeals , 884 N.E.2d 889, 892 (Ind. Ct. App. 2008); Lake C nt y . Plan Comm’ n v. C

nty. Council of Lake C

nty. , 706
N.E. 2d 601, 60 2 (Ind. Ct. App. 1999)

. I n those cases , we held that a person must be “aggrieved” by a zoning decision. Here, there is no grievance. At the Plan Commission stage, the opp osed landowners were victorious

— a fter hearing from the parties , the Plan Commission forwarded a certified, unfavorable recommendation on Singleton’s proposal
to the County Council . Although the Plan Commission’s role in this process is an advisory one, the Plan Commission advised in the landowners’ favor ; thus , they suffered no injury o r grievance , and we need not reach t heir specific claims regarding due process
at this level

. II. Due Process The opposed landowners also argue that the County Council violated their due

process rights . But their argument fails because the County Council, the ultimate7

authority in Lake County to enact or reject a proposed ordinance, was acting in a legislative capacity. Our courts have held that “ when a common council acts in a legislative capacity, it is not subject to due process requirements. ” City of Crown Point v. Misty Woods Props. , 864 N.E.2d 1069, 1080

- 81 (Ind. Ct. App. 2007); see also City of Hobart Common Council v. Behavioral Inst. of Ind., LLC , 785 N.E.2d 238, 246 (Ind. Ct. App. 2003)

. Z oning and rezoning are legislative determination s , rather than administrative or quasi

judicial determination s based on fact

- finding. Id. “ In the legislative process, there is no constitutional due

- process requirement of a neutral decision maker; rather, the check on legislative power is the ballot box. ” Mist y Woods , 864 N.E.2d at 1081 (citing Perry

Worth Co ncerned Citizens v. Bd. of Comm’ rs of Boone C nty. , 723 N.E.2d 457, 460 (Ind.
Ct. App. 2000), trans. denied )

. Because the opposed landowners were not entitled to due process in the County Council proceeding s, they cannot show a due

- process deprivation as a matter of law. The opposed landowners nonetheless argue that they were entitled to due process for two reasons . First, they argue that the County Council received public comment and additional evidence a t its meeting though it was not required to do so , and for this reason, the County Council was bound by due

- process protections. The opposed landowners rely

on City of Hobart Common Council v. Behavioral Institute of Indiana , LLC , to support their claim. This reliance is misplaced. Hobart dealt with a land

- use variance, not rezoning. And Hobart explicitly distinguishes variances from rezoning

. See 785 N.E.2d 246 (“[I] ndividual petitions for land use variances, like the one at issue here, are treated8

qu ite differently [from zoning or rezoning] and are considered quasi

- judicial proceedings entitled to due process protections. ”). Because rezoning is a legislative act, unlike variance proceedings, which are quasi

- judicial, Hobart is inapplicable. The o pposed landowners also argue that we should require due process in this case
because the rezoning will affect a limited nu mber of people . In support, t hey cite a Florida case, Board o

f Comm issioners v. Snyder , 627 So. 2d 469 (Fla. 1993) , which holds that rezoning affecting a limited number of persons or property owners should be treated as a variance and subject to due

- process requirements. See Appellant’s Reply Br. p. 10

- 12. Even assuming that the rezoning will affect a limited number of people

— and the opposed l andowners offer no proof of this

— Indiana has not carved out such an exception , and we decline to do so here. Because the opposed landowners have no standing to challenge the Plan Commission’s actions and the County Council acted in a legislative capacity , not subject to due

- process requi rements , we conclude tha t the trial court did not err by granting summary judgment for Singleton. Affirmed. BAILEY, J., and BROWN, J., concur.