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Tuesday, January 04, 2005

Indiana Decisions - Supreme Court posts two today

Bank of New York, Trustee v. Stephen H. Nally, et al. (1/4/05 IndSCt) [Property; Real Estate]
Boehm, Justice.

We hold that a mortgage recorded before a deed to the mortgagor is recorded but after the deed is dated and delivered is within the mortgagor’s chain of title as of the time of recording. We also hold that equitable subrogation is an appropriate remedy and available to a subsequent mortgagee who pays off the senior mortgage in total. * * *

Conclusion. The judgment of the trial court is reversed. This case is remanded for further proceedings consistent with this opinion.
Shepard, C.J., and Dickson, Sullivan, and Rucker, JJ. concur.

Chester Borsuk v. Town of St. John (1/4/05 IndSCt) [Zoning]
Shepard, Chief Justice
Chester Borsuk asked the Town of St. John to rezone the half of his lot presently designated residential so that the whole parcel would be commercial. He observes that the Town’s comprehensive plan contemplates commercial zoning for the whole lot and argues that the denial of his request was arbitrary and capricious. The comprehensive plan is an important ground, but not the sole ground, on which the Indiana Code says such decisions should be made. We conclude that the Town could lawfully refuse Borsuk’s request. * * *

The Court of Appeals reversed [the trial court], with instructions that the trial court order the Town to rezone the parcel. It stated, "[T]he Town’s Comprehensive Plan called for the area to be zoned commercial at some point in the future. Borsuk’s parcel was the only plot of land on the entire block that was not zoned in such a manner. In such a circumstance, the municipality must -- absent a compelling reason -- comply with its comprehensive plan’s vision and rezone the area for commercial use. Failure to do so would be equivalent to ignoring the provisions of Indiana Code section 36-7-4-603 and, moreover, would render a comprehensive plan meaningless."

We granted transfer and now affirm the trial court.

I. Role of the Comprehensive Plan. * * * The Court of Appeals’ interpretation of the statute -- that a municipality must comply with its comprehension plan’s vision absent a compelling reason -- attempts to create a rebuttable presumption that the statute does not erect. A municipality must consider all factors and make a balanced determination. Ind. Code Ann. § 36-7-4-603.

II. Not Arbitrary and Capricious. * * * [A]fter weighing all of the statutory factors, the Town’s balancing suggested a permissible deviation from the comprehensive plan. These concerns provide a rational basis for the Town’s decision, and therefore, it is not arbitrary and capricious.

III. An Affidavit Supplementing the Public Record. * * * Indiana cases that have strictly adhered to the principle of boards speaking only through their minutes and records seem to have involved situations where the minutes or records were silent on the issue that the additional evidence sought to prove. In these cases, the courts refused to permit the use of external evidence as a substitute for the minutes. In this case, the minutes do address the reasons for denying Borsuk’s request for rezoning. Therefore, the trial court properly admitted Sawyer’s affidavit as a supplement to the minutes of the Plan Commission and Town Council.

IV. Unconstitutional Taking. * * * There has been some debate earlier in this cause over whether or not local ordinances would permit Borsuk to build a commercial structure on the commercially zoned portion of his lot. As a matter of takings law, this debate focuses on a moot point, because Borsuk derives rental income from the residence on his lot. A rented residence is certainly an economically viable use of land. See Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1014 (1992). There was no taking here. * * *

We affirm the trial court.
Dickson, Sullivan, Boehm, and Rucker, JJ., concur.

Posted by Marcia Oddi on January 4, 2005 01:54 PM
Posted to Ind. Sup.Ct. Decisions