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Indiana Law Annotated

Vol. 17 No. 14
November 30, 1999

Table of Contents

GRADES AVAILABLE ON INSITE

Effective this fall semester, all final grades will now be accessed only on INSITE. Students will no longer need to submit envelopes for the mailing of grades, nor will grades be given out over the telephone, faxed or e-mailed to the student. When a course's grade distribution is posted on the grade board, the grades for that course will be available for viewing on INSITE. Please note that the grade distribution on INSITE may be incorrect, because the Law School does not include non-JD students in official course grade distributions.

Students must know their PIN Number to use INSITE. If you do not know your PIN Number, you should contact the Registrar's Office, Franklin Hall, Room 100. INSITE may be found at http://insite.indiana.edu.

Grades from the faculty for the fall semester are due on Monday, Jan. 17, 2000. The grade board will also indicate if a faculty member has been granted an extension for cause in submitting grades.

EVENTS & LECTURES

INDIANA STATE COURT OF APPEALS
On Friday, Dec. 3, at Noon, the Indiana Court of Appeals, Judge John G. Baker of Monroe County, Judge Edward W. Najam, Jr. of Monroe County, and Judge L. Mark Bailey of Decatur County) will hear the appeal of the case T.W. Thom Construction v. Hyun Lee. The arguments will last about an hour. The Court will answer general questions, not related to the case argued, immediately after the argument.

Facts and Procedural History

T.W. Thom Construction, Inc. ("Thom") and Hyun Lee ("Lee") are owners of adjoining parcels of real property in Jeffersonville, Indiana. Both parcels are within the city limits and, therefore, are subject to the zoning ordinances of the City of Jeffersonville ("City"). This appeal involves a conflict between the parties over the construction of a mobile home park.

Thom is constructing a residential subdivision. Lee is building a mobile home park directly adjacent to Thom's development. In preparation for construction of the park, Lee submitted various documents to the City including a site plan, a utility plan, an erosion and sediment control plan, a topographic plan and a sanitary sewer plan. The City gave its approval in March 1996. Prior to construction, Lee also met with the Director of Planning and Zoning and other City officials concerning the proposed mobile home park. However, Lee never applied for or obtained any form of written approval from the Building Commissioner or Board of Zoning Appeals.

In June 1996, Lee obtained a permit approving construction of the mobile home park from the Indiana State Department of Health ("State") as required by Indiana code Section 16-41-27. In March 1998, he began construction of the park. Shortly thereafter, Thom filed an action in the Clark Circuit Court seeking a preliminary injunction and a declaratory judgement prohibiting Lee from proceeding with the development. In his complaint, Thom alleged that Lee had failed to comply with local zoning regulations before starting construction of the mobile home park. In response, Lee filed a motion for summary judgement in which he contended that he was entitled to proceed with the development of his real property based on the State's approval. In February of 1999, the trial court granted summary judgement in favor of Lee. Thom now appeals.

Parties' Contentions

Initially, there is a dispute between the parties over whether Thom failed to exhaust all administrative remedies provided in the Zoning Code before filing an action to enjoin the construction of Lee's mobile home park. For the first time on appeal, Lee contends that this court is without jurisdiction to grant any relief requested by Thom because the Zoning Code provides that any person who is "adversely affected" by a Building Commissioner's decision may appeal the decision to the Board of Zoning Appeals. Lee argues that Thom failed to request the Building Commissioner to enforce the ordinance to require that Lee obtain a special exception permit or other form of local approval before beginning construction of the mobile home park. Thom responds that Lee has waived the issue of exhaustion as he failed to raise it in the trial court. Thom also asserts that Lee never received any formal written approval from the Building Commissioner or the Board of Zoning Appeals authorizing construction of the mobile home park. Hence, there was no adverse decision from which he could have appealed.

On the merits, Thom presents three issues for our review. First, Thom contends that the trial court erred when it held that Lee had complied with all statutory and regulatory requirements for construction of mobile home parks. He maintains that Title 410, Section 6-6 of the Indiana Administrative Code, provides that mobile home park sites shall meet all requirements of the local zoning commission and "shall be approved" by said commission before construction begins. (emphasis added). Here, there is no evidence that the local zoning commission approved the construction of Lee's mobile home park.

Lee responds that the language "shall be approved" does not mean that the local zoning body must actually consider and approve all mobile home park proposals. Rather, the provision ensures that when a city chooses to exercise its authority to regulate a mobile home park by way of a zoning restriction, the local zoning commission has an opportunity to review and approve or disapprove the development. In this case, the City has chosen not to regulate the construction of mobile home parks and to require only that the development be approved by the State Department of Health. Thus, Lee contends that once the State issued a permit approving Lee's proposal, no further approval from the local government was necessary.

Second, Thom argues that the trial court erred when it concluded that Lee was permitted, pursuant to the language of the Zoning Code, to construct a mobile home park in an area zoned B-3 (General Business). specifically, he contends that the Zoning Code states that no land shall be used for any purpose other than a use which is "permitted and specified" in a district in which such land is located. Here, both parties concede that the Zoning Code does not include mobile home parks in any use category. Thom maintains that since mobile home parks are not specified in the ordinance, they are excluded by implication. Therefore, Lee must seek a special exception permit to construct a mobile home park.

Lee counters that a landowner is not required to seek a special exception permit or other administrative approval to build a mobile home park because the City clearly intended that mobile homes be permitted in mobile home parks located in the city. In addition, he asserts that the Zoning Code permits the Board of Zoning Appeals to grant only those special exceptions which are enumerated in the ordinance. Given that mobile home parks are not listed as a special exception in any use category, the code neither permits nor requires the Board of Zoning Appeals to issue a special exception permit for Lee's mobile home park.

Third, Thom contends that the trial court erred when it held that Lee had obtained all required ministerial approvals from the City before construction of the mobile home park began because under Indiana law the City was required to approve the mobile home park application in writing. He argues that a mobile home park is defined in the Zoning Code in substantially the same way as a subdivision. Section 36-7-4-707 of the Indiana code requires local planning commissions considering an application for a subdivision plat to issue a decision granting or denying the application in writing. Here, the City has failed to approve the construction of Lee's mobile home park in writing. Thus, any informal approval the City may have granted to Lee was contrary to Indiana law. Lee does not respond to Thom's assertion.

ACADEMY OF LAW ALUMNI FELLOWS PROFILE

Who are those people whose photographs are on the first-floor wall? In this series of profiles, we introduce you to the members of the Academy of the Law Alumni Fellows. The Fellows are the recipients of the highest honor the Law School bestows on its alums. We hope that each profile will help you reflect on the successes of our alumni as well as some possibilities that are ahead for you.

JEANETTE F. REIBMAN
In 1966, Senator Jeanette Reibman became the first woman in the history of Pennsylvania to be elected to a full term in the state's Senate.

Senator Reibman was born in Fort Wayne, Indiana, received a bachelor's degree in political science from Hunter College in 1937, and graduated from Indiana University School of Law in 1940. She began her career as an attorney for the U.S. War Department. She won her first elected office in 1955 when she was elected to the Pennsylvania House of Representatives. She is currently in her seventh term as a state senator.

Her career as a legislator is distinguished for its remarkable achievements. As a senator, she has advocated, initiated, or sponsored legislative action on a wide variety of issues: legal services for the poor through interest on law office trustee accounts; liberalized workman's and unemployment compensation standards; free transportation during non-peak riding hours for persons 65 years of age or older; property tax relief for elderly homeowners and renters; local mental health centers throughout the state; upgraded quality of care at nursing homes; laws eliminating discrimination; and passage of an Equal rights Amendment to the state constitution. However, it is through legislation on behalf of education and the environment that Senator Reibman has achieved greatest prominence. She supported the creation of the Pennsylvania Community College System; a fairer school funding formula; constitutionally permissible aid to nonpublic schools for transportation, instructional materials, and health examinations for students; and an improved retirement system for school and municipal employees. The importance of her work on behalf of education has been recognized with numerous honors. To name but a few, she was inducted into the Hunter College Alumni Hall of Fame in 1974, named Lafayette College Trustee Emerita, and has received five honorary doctorates.

On behalf of the state's environment, she actively sought passage of legislation to protect the supply and quality of drinking water, to clean up hazardous waste sites, and to limit spraying of forests and field crops with chlorinated hydrocarbons. For these and many other public service achievements, Senator Reibman has been widely honored by citizens of Pennsylvania as well.

NEWS FROM THE FACULTY

Professor Bell presented "Issues of Identity in Gaining Access to Organizations" to the University of Michigan Business School's Interdisciplinary Committee on Organizational Studies (ICOS) seminar on Nov. 19.

Professor Greenebaum has recently published his review/essay, "Is the Medium the Message? A Discussion of Susskind's The Future of Law," in the International Journal of the Legal Profession.

Professor Tanford's most recent book, "The Nanny & Domestic Help Legal Kit," was co- authored by Brian A. Mooij, CPA and published by Sphinx.

NEWS FROM THE RECORDER

EXAM NUMBERS
Exam numbers are available in our office. Exam schedules have been placed in the student mailboxes.

Please note that the exam schedule on INSITE is incorrect. The correct exam schedules have been placed in individual student mailboxes, are posted throughout the building, and a copy is attached to the hard copy of this issue of ILA.

DROP/ADD SPRING 2000
Drop/Add for the spring semester will begin on Friday, Jan. 7, at 9:00 a.m. and will continue through and including the following Friday, Jan. 14, at 4:00 p.m. Students processing changes in their spring schedule will be required to first notify the Recorder's Office and then go to the touchtone telephone system upon their return in January.

NEWS FROM STUDENT ORGANIZATIONS

Announcing New PILF Officers!
President: Laura Boeckman

Vice-Presidents: John Snethen and Calanit Amir

Secretary: Pam Cleary

Treasurer: Emily Patterson

1L Fundraiser Chair: Tom Goodwin

1L Work-A-Day Chair: Mindy Finnigan

ANNOUNCEMENTS

EVENTS CALENDAR
Requests for room reservations may be sent to Denise at bl- events-law@ exchange.indiana.edu. When placing your request, be sure to include the name of the event (along with the group's name, if applicable), the date and time of the event, the expected number of attendees, and the particular room you are requesting. Please give at least 5 days advance notice of your request. All requests will be confirmed via email within 48 hours of the request.

AUDIO - VIDEO SERVICES
Requests for AV services may be sent to Beth at av@exchange. indiana.edu. Please include the name of your group and the e-mail address of the contact person, a description of what you want to do, and the date, location, starting time and duration of the event. Requests must be made at least 48 hours in advance and will be confirmed by email.

CALENDAR

Friday, Dec. 3, T.W. Thom Construction v. Hyun Lee, Moot Court Room, Noon.

Updated: 30 November 1999