Dvorak v. City of Bloomington

Attorneys for Appellants Amici Curiae

Michael L. Carmin Indiana Civil Liberties

Union

Andrews Harrell Mann Carmin & Parker J. Alexander

Tanford

Julia Blackwell Gelinas Bloomington,

Indiana

Nelson D. Alexander Kenneth J. Falk

Locke Reynolds LLP Indianapolis, Indiana

Indianapolis, Indiana

Indiana Association of Cities

and Towns

Attorneys for Appellee Michael J. Lewinski

Linda Runkle, Corporation Counsel Timothy E. Ochs

Patricia S. Bernens, City Attorney Tanya D.

Marsh

R. Michael Flory, Asst. City Attorney Ice Miller

Bloomington, Indiana Indianapolis, Indiana

City of West Lafayette,

Indiana

Robert L. Bauman

West Lafayette City Attorney

Pamela J. Hermes

West Lafayette Assistant City

Attorney

Gambs, Mucker & Bauman

Lafayette, Indiana

____________________________________________________________________________

__

In the

Indiana Supreme Court

_________________________________

No. 53S01-0209-CV-472

Peter Dvorak, Imram Aziz, Brian Gach, Eric Himes,

Scott Albright, and Alan Lutz,

Appellants (Defendants below),

v.

City of Bloomington,

Appellee (Plaintiff below).

________________________________

Appeal from the Monroe Circuit Court, No. 53C04-9604-OV-350

The Honorable Elizabeth N. Mann, Judge

________________________________

On Petition To Transfer from the Indiana Court of Appeals

53A01-0105-CV-188

________________________________

September 23, 2003

Dickson, Justice.

This appeal challenges the trial court's determination that a local

zoning ordinance restricting the number of unrelated adult persons per

dwelling in a single-family residential zone does not violate the

Privileges and Immunities Clause of the Indiana Constitution and was not an

ultra vires act. We affirm.

Peter Dvorak is the owner of a residential property located at 107 S.

Bryan Avenue in Bloomington. On April 23, 1996, the City filed a complaint

against Dvorak and the other defendants-appellants, tenants of Dvorak

(hereinafter collectively "Dvorak"), claiming that they violated a zoning

ordinance in the Bloomington Municipal Code which prohibits the property

from being occupied by more than four adults unrelated by blood, marriage,

or adoption.[1] The City’s complaint sought to enjoin future use of the

property inconsistent with the ordinance and to impose a fine of $2,500 per

day from the time the violation began until the time it ceased. Dvorak

filed a motion for summary judgment, claiming that the ordinance was void

as an ultra vires act and that it violated Article 1, Section 23, the Equal

Privileges and Immunities Clause, of the Indiana Constitution. After a

hearing and the submission of briefs by the parties, the trial court denied

the motion, finding that the ordinance was neither ultra vires nor

unconstitutional. At Dvorak's request, the trial court certified the

ruling for interlocutory appeal. The Court of Appeals accepted the appeal,

vacated the decision of the trial court, and remanded for further

proceedings, noting that the trial court had relieved the City of its duty

to answer an interrogatory seeking "the City's justification(s) and

rationale(s)" for the ordinance, and holding that Dvorak "should be given a

reasonable opportunity for discovery in order to determine what goals the

Ordinance was designed to promote." Dvorak v. City of Bloomington, 702

N.E.2d 1121, 1126 (Ind. Ct. App. 1998). Thereafter, in a bifurcated bench

trial on the issues of constitutionality and whether its adoption was an

ultra vires act, the trial court entered judgment upholding the ordinance.

Upon review of this judgment, the Court of Appeals reversed, finding the

zoning ordinance unconstitutional under Section 23. Dvorak v. City of

Bloomington, 768 N.E.2d 490 (Ind. Ct. App. 2002). We granted the City's

petition for transfer. Dvorak v. City of Bloomington, 783 N.E.2d 695 (Ind.

2002) (table).

Dvorak contends on appeal that the zoning ordinance violates Section

23 and that its adoption was an ultra vires act.

Article 1, § 23

When an enactment is challenged under the Indiana Constitution, it

stands before this Court "clothed with the presumption of constitutionality

until clearly overcome by a contrary showing." Boehm v. Town of St. John,

675 N.E.2d 318, 321 (Ind. 1996) (citing Adoptive Parents of M.L.V. v.

Wilkens, 598 N.E.2d 1054, 1058 (Ind. 1992); State v. Rendleman, 603 N.E.2d

1333, 1334 (Ind. 1992); Eddy v. McGinnis, 523 N.E.2d 737, 738 (Ind.

1988)). The party challenging the constitutionality of the enactment bears

the burden of proof, and all doubts are resolved against that party. Id.

The requirements of Article 1, § 23 govern not only state statutes,

but also the enactments and actions of county, municipal, and other

governmental agencies and their equivalents. See, e.g., IHSAA, Inc. v.

Carlberg, 694 N.E.2d 222, 231 (Ind. 1997); Haas v. South Bend Comm. Sch.

Corp., 259 Ind. 515, 289 N.E.2d 495 (1972); Phillips v. Officials of

Valparaiso, 233 Ind. 414, 120 N.E.2d 398 (1954); Kersey v. City of Terre

Haute, 161 Ind. 471, 68 N.E. 1027 (1903); Graffty v. City of Rushville, 107

Ind. 502, 509, 8 N.E. 609, 612 (1886); Indianapolis v. Clint's Wrecker

Serv., Inc., 440 N.E.2d 737, 744 (Ind. Ct. App. 1982). But see Bd. of

Comm'rs of the County of Howard v. Kokomo City Plan Comm'n, 263 Ind. 282,

294, 330 N.E.2d 92, 100 (1975).

The Privileges and Immunities Clause of the Indiana Constitution

states, "[t]he General Assembly shall not grant to any citizen, or class of

citizens, privileges or immunities, which, upon the same terms, shall not

equally belong to all citizens." Ind. Const. art. I, § 23. In Collins v.

Day, we analyzed the common understanding of the framers and ratifiers of

Section 23 and early cases implementing that section, concluding as

follows:

To summarize, we hold that Article I, Section 23 of the Indiana

Constitution imposes two requirements upon statutes that grant unequal

privileges or immunities to differing classes of persons. First, the

disparate treatment accorded by the legislation must be reasonably

related to inherent characteristics which distinguish the unequally

treated classes. Second, the preferential treatment must be uniformly

applicable and equally available to all persons similarly situated.

Finally, in determining whether a statute complies with or violates

Section 23, courts must exercise substantial deference to legislative

discretion.

644 N.E.2d 72, 80 (Ind. 1994).

Directing their first two claims to the first requirement in Collins,

Dvorak contends:

No inherent distinctions exist between equal numbers of related and

unrelated adults that are reasonably connected to the accomplishment

of the Ordinance's objectives of reducing trash, noise, and traffic

and maintaining core neighborhoods by reducing adult population

density.

. . . .

No inherent distinctions exist between equal numbers of related and

unrelated adults that are reasonably connected to family values or

providing healthful surroundings for family life.

Br. of Appellants at 12, 18. Dvorak's third claim involves the second

Collins requirement: "[t]he Ordinance permits some non-family groups to

live in single-family zones but denies this privilege to other similarly

situated groups." Id. at 20.

As a preliminary matter, we note that Dvorak's constitutional

arguments place considerable emphasis upon the alleged failures of the City

to establish or demonstrate that disparate treatment of different

classifications under the ordinance was reasonably connected to the City's

legislative goals. Because it is Dvorak, not the City, who asserts this

constitutional challenge, however, there is no burden upon the City to

demonstrate that the ordinance is constitutional. Rather, the burden is

entirely upon Dvorak to overcome the presumption of constitutionality and

to establish a constitutional violation. Sims v. United States Fid. &

Guar. Co., 782 N.E.2d 345, 349 (Ind. 2003); Boehm v. Town of St. John, 675

N.E.2d at 321; Collins, 644 N.E.2d at 81.

Dvorak asserts that the ordinance, Bloomington Municipal Code §

20.02.01.00, excludes from single-family residential districts households

consisting of more than three adults not related by blood, marriage or

legal adoption. Br. of Appellants at 4. The Bryan Avenue property was

"grandfathered" to permit four unrelated adults to occupy the property.

Appellants' App. at 143. Dvorak does not challenge the propriety of the

City's creation of single-family residential districts, but claims a

constitutional violation contending that the ordinance unequally treats two

different classes: households comprised of four or more related adults and

those comprised of four or more unrelated adults. Dvorak argues that the

City's purposes in enacting the ordinance are not reasonably related to any

inherent characteristics that distinguish these two classes.

This argument places a strained construction on Collins, which

requires only that the "the disparate treatment accorded by the

legislation," not the purposes of the legislation, "be reasonably related

to the inherent characteristics which distinguish the unequally treated

classes." Collins, 644 N.E.2d at 79; Boggs v. Tri-State Radiology, Inc.,

730 N.E.2d 692, 696 (Ind. 2000) (considering whether special medical

malpractice statute of limitations was reasonably related to the inherent

characteristics distinguishing medical malpractice victims from other tort

victims); McIntosh v. Melroe Co., 729 N.E.2d 973, 981 (Ind. 2000)

(deciding whether the products liability statute of repose is reasonably

related to the inherent characteristics that define the distinction);

IHSAA, Inc., 694 N.E.2d at 240 (determining whether limited athletic

eligibility is reasonably related to inherent distinctions distinguishing

transfer students from other students). While it is the treatment, not the

legislative purpose, which must be reasonably related to the inherent

distinctions between the classes, the legislative purposes may be a factor

considered in making this determination. See, e.g., Sims, 782 N.E.2d at

353-54.

We therefore find this appeal to present the following appellate

issue: whether Dvorak has demonstrated either (1) that the ordinance's

disparate treatment of two classes of persons is not reasonably related to

their distinguishing inherent characteristics, or (2) that the preferential

treatment accorded one of the classes is not uniformly applicable and

equally available to all persons similarly situated.

As to the first issue, the disparate treatment provided by the

ordinance is one of exclusion. Unlike households comprised of four or more

adults related by blood, marriage or legal adoption, similar households

comprised of four or more adults not so related are prohibited in single-

family residential zones. Thus, the issue is whether this exclusion is

reasonably related to the characteristic distinguishing these two

classes—whether the members of a household are related by blood, marriage,

or legal adoption. The answer is self-evident: limiting multiple-adult

households in single family residential zones to families, and excluding

non-families, is reasonably related to the difference between families and

non-families. To put it another way, considering whether groups are or are

not families is obviously related to determining whether to exclude them

from districts zoned for family residential use.

In addition to claiming that the Bloomington ordinance violates the

first prong of Collins, Dvorak also contends that it is invalid under the

second Collins prong: whether the preferential treatment accorded one of

the classes is uniformly applicable and equally available to all persons

similarly situated. Dvorak argues that the ordinance permits some non-

family groups, specifically four college students living together in a

house previously occupied by four other students before the ordinance was

enacted, to live in a single-family zone but denies this privilege to other

similar groups unable to locate such a "grandfathered" house, contrary to

the second prong of the Collins test.

This isolated occurrence is insubstantial and does not render the

ordinance contrary to Section 23. As we observed in Collins:

Exact exclusion and inclusion is impractical in legislation. It is

almost impossible to provide for every exceptional and imaginary case,

and a legislature ought not to be required to do so at the risk of

having its legislation declared void, even though appropriate and

proper as applied to the general subject upon which the law intended

to operate.

644 N.E.2d at 80, (quoting Cincinnati, Hamilton & Dayton Ry. Co. v.

McCullom, 183 Ind. 556, 561, 109 N.E. 206, 208 (1915) (citations omitted)).

Under the Bloomington ordinance, any persons who are related by

blood, marriage, or adoption may reside in a single dwelling in the zoning

classification, as may up to three unrelated adults. The ordinance is

uniformly applicable and equally available to all persons similarly

situated.

We conclude that the Dvorak defendants have not carried their

substantial burden to demonstrate that the challenged ordinance violates

the Privileges and Immunities Clause of the Indiana Constitution.

Ultra Vires

Dvorak alternatively argues that the Bloomington ordinance exceeds the

zoning powers delegated to cities under enabling legislation, Indiana Code

§ 36-7-4-201 et seq., and thus is an ultra vires act. Br. of Appellants at

21. Specifically, Dvorak contends that the "zoning enabling legislation

does not expressly authorize cities to make zoning distinctions between

different kinds of single families or single housekeeping units based on

legal, biological or numerical characteristics, or on familial status."

Id. Dvorak also argues that the enabling legislation "does not expressly

authorize cities to regulate users of real estate in addition to, and apart

from, regulating uses of real estate." Id. at 22 (emphasis added).

The zoning enabling legislation declares that "a unit wanting to

exercise planning and zoning powers in Indiana must do so in the manner

provided by this chapter." Ind. Code § 36-7-4-201(a). The relevant

objectives of the statute are stated in sub-section (b):

The purpose of this chapter is to encourage units to improve the

health, safety, convenience, and welfare of their citizens and to plan

for the future development of their communities to the end:

. . . .

(2) That new communities grow only with adequate public way, utility,

health, educational and recreational facilities;

. . . .

(4) That residential areas provide healthful surroundings for family

life . . .

I. C. § 36-7-4-201(b). In addition, other enabling legislation requires

that zoning ordinances must be adopted for specific purposes, including

"promoting the public health, safety, comfort, morals, convenience and

general welfare." I.C. § 36-7-4-601(c)(3). To this end, the zoning

ordinances may "regulate how real property is developed, maintained and

used," including the implementation of "standards for population density

and traffic circulation" and "any other provisions that are necessary to

implement the purposes of the zoning ordinance." I.C. § 36-7-4-

601(d)(2)(I)-(J).

With the adoption of the Indiana Home Rule Act, the legislature

"abrogated the traditional rule that local governments possessed only those

powers expressly authorized by statute." City of Gary v. Indiana Bell Tel.

Co., Inc., 732 N.E.2d 149, 153 (Ind. 2000). The Home Rule Act expressly

broadens a governmental unit's authority to include not only "[a]ll powers

granted it by statute," but also "[a]ll other powers necessary or desirable

in the conduct of its affairs even though not granted by statute." I.C. §

36-1-3-4(b). The Act explicitly declares that "[a]ny doubt as to the

existence of a power of a unit shall be resolved in favor its existence."

I.C. § 36-1-3-3(b). We have applied the Home Rule Act in construing the

zoning authority of governmental units. City of Crown Point v. Lake

County, 510 N.E.2d 684, 685-86 (Ind. 1987).

Considering the enabling legislation and Home Rule Act, we reject

Dvorak's claim that the enabling legislation does not expressly authorize

cities to make zoning distinctions between different kinds of single

housekeeping units based on familial status, or to regulate the users of

real estate rather than uses of real estate, and thus the Bloomington

ordinance is ultra vires. The legislature specifically authorized

governmental units to use zoning so that "residential areas provide

healthful surroundings for family life," I. C. § 36-7-4-201(b)(4) (emphasis

added), and in order "to promote the public health, safety, comfort,

morals, convenience and general welfare," I.C. § 36-7-4-601(c)(3). The

enactment of zoning ordinances that make distinctions based on familial

relations of the users of residential real estate is an integral component

of implementing these legislative objectives.[2] Our conclusion is further

reinforced by the Home Rule Act which extends to each governmental unit

"all other powers necessary or desirable in the conduct of its affairs."

I.C. § 36-1-3-4(b).

Conclusion

The challenged Bloomington zoning ordinance does not violate the

Privileges and Immunities Clause of the Indiana Constitution nor is it void

as an ultra vires act exceeding the City's statutory authority. We affirm

the judgment of the trial court.

Shepard, C.J., and Sullivan, Boehm, and Rucker, JJ., concur.

-----------------------

[1] The ordinance at issue is the following:

A family consists of an individual or people related by blood,

marriage, or legal adoption, and any dependent children of the

household. In the RE and RS districts and in the RT7 district except

where overlaid by a PRO 15 district, "family" also includes a group of

no more than three (3) adults, and their dependent children, living

together as a single housekeeping unit in a dwelling unit. In all

other districts, "family" also includes a group of no more than five

(5) adults and their dependent children, living together as a single

housekeeping unit.

Bloomington Municipal Code § 20.02.01.00.

[2] Our conclusion is not altered by Dvorak's claim that "zoning

distinctions based on intimate and genetic relationship, rather than the

use of real estate, are not appropriate." Br. of Appellants at 22, citing

Metro. Bd. of Zoning Appeals v. Gunn, 477 N.E.2d 289, 299 (Ind. Ct. App.

1985), and Residential Mgmt. Sys., Inc., v. Jefferson Plan Comm'n, 542

N.E.2d 227, 229 (Ind. Ct. App. 1989). In both Gunn and Residential

Management, the Court of Appeals confronted the application of residential

zoning restrictions to group homes for developmentally disabled persons

permitted under the specific provisions of Indiana Code § 16-13-21-12. To

the extent that these two cases contain the language asserted by Dvorak, it

was used solely in the context of providing "the qualities of a stable and

permanent household to the developmentally disabled." Gunn, 477 N.E.2d at

299.