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Friday, November 04, 2005

Ind. Decisions - Supreme Court rules on billboard dispute; finds inmate's complaint "unreasonable"

Apparently the Court's website is being updated twice a day now, as I've just spotted two Supreme Court opinions that must have been posted late yesterday.

In Metropolitan Development Commission of Marion Co., et al v. Pinnacle Media, LLC, Justice Sullivan writes:

Pinnacle Media, LLC, seeks a declaration that a change in the zoning ordinance of the City of Indianapolis concerning billboard location permits is not applicable to its plan to erect 10 billboards in Indianapolis. Because no construction or other work that gave Pinnacle a vested interest in the billboard project had begun on the billboards at the time of the ordinance change, the ordinance change did apply to the 10 billboards. * * *

The question of whether Pinnacle’s 10 billboards are subject to the 2000 zoning ordinance amendment implicates two disparate lines of Indiana cases. Both lines employ the term “vested rights” and generally stand for the proposition that a person’s “vested rights” are protected against retroactive application of a change in law. But each line takes a quite different approach to defining or determining when a “vested right” exists, and these approaches can lead to different results. * * *

Pinnacle argues adamantly that this is not a nonconforming use case for which Lutz is precedent but a permit application case controlled by Knutson. While for reasons we will set forth in a moment we think this is a nonconforming use case, we also think, at least in respect of building permits, the Knutson rule should be revisited. * * *

Regardless of Knutson’s viability, we do not believe its rule is available to Pinnacle in this case. While Pinnacle argues vehemently that this is not a nonconforming use case, we believe that it is properly analyzed under Lutz’s principles. When Pinnacle set out to erect the 10 (initially 15) billboards, there was no location permit required by the City. This is exactly the position the developer in Lutz was in when it started out to de-velop the gasoline service station. The question there—as we find it to be here—was whether, at the time of the change in the zoning ordinance, construction had proceeded on the project to the point that the developer had a vested interest. As discussed, the Court held that the construction had not. Lutz, 230 Ind. at 81, 101 N.E.2d at 190.

In this case, no construction of any kind had proceeded on the 10 billboards as of April 26, 2000, the date the ordinance change was officially proposed, or even July 10, 2000, the date it was enacted. Pinnacle does not present us with any argument that it made construction expenditures before the enactment of the zoning ordinance change. Nor could it. It was not until 11 months later, June 18, 2001, that Pinnacle received the separate approvals required by the State.

Pinnacle argues that its filing of applications for permits with the State on April 19, 2000, immunized it from the City’s zoning change but we see no basis in law or logic for this proposition. * * *

Most telling in this respect is the fact that regardless of what the City’s billboard location regulation was, or even whether it had one, Pinnacle would still have been re-quired to obtain State approval for its project. State approval was in addition to, and not a substitute for, local approval. That being so, Pinnacle cannot use its compliance with State requirements as a substitute for compliance with local requirements.

Conclusion. Having granted transfer, Indiana Appellate Rule 58(A), we reverse the judgment of the trial court as to its holding that the zoning ordinance was inapplicable to the 10 permits and remand this matter to the trial court with instructions to grant the City’s mo-tion for summary judgment. Because we find that the zoning ordinance was applicable, we also reverse the trial court’s award to Pinnacle of attorney fees.

In Larriante Sumbry v. William Boklund, a per curiam ruling, the Court writes:
Larriante Sumbry filed a civil tort action against LaPorte Superior Court Judge William Boklund. The trial court granted Bokland’s motion to dismiss for failure to state a claim upon which relief could be granted, but declined to find that Sumbry’s complaint was “frivolous,
unreasonable or groundless” within the meaning of Indiana Code section 35-50-6-5(a)(4) (Supp. 2004). The Indiana Court of Appeals affirmed in an unpublished decision, Sumbry v. Boklund, No. 46A04-0404-CV-237 (Ind. Ct. App. Feb. 9, 2005), and Sumbry petitioned to transfer jurisdiction of the case to this Court. We grant transfer to address whether his complaint was frivolous, unreasonable or groundless. See Ind. Appellate Rule 58(A) (stating that “[u]pon the grant of transfer, the Supreme Court shall have jurisdiction over the appeal and all issues as if originally filed in the Supreme Court.”). We hold that it was unreasonable. * * *

The Court of Appeals has noted Sumbry’s “proclivity for filing frivolous and vexatious lawsuits.” Id. at 461 (quoting Sumbry v. Hammond, No. 45A04-0305-CV-257, slip op. at 5 (Ind. Ct. App. Apr. 19, 2004) (unpublished mem. decision), trans. denied). Sumbry’s reputation even extends to other jurisdictions. See, e.g., Sumbry v. Davis, No. 05-3028, unpublished order (10th Cir. June 2, 2005) (stating “Mr. Sumbry is a promiscuous as well as a frivolous filer”). Every resource that courts have devoted to Sumbry’s numerous civil proceedings is a resource denied to other legitimate cases with good-faith litigants.

Under the circumstances of this case, we conclude that Sumbry’s complaint against Boklund was unreasonable such that he is subject to being deprived of earned credit time under Indiana Code section 35-50-6-5(a)(4). See Parks, 783 N.E.2d at 725-26; Martin v. Heffelfinger, 744 N.E.2d 555, 560 (Ind. Ct. App. 2001).

Posted by Marcia Oddi on November 4, 2005 09:45 AM
Posted to Ind. Sup.Ct. Decisions