Trial Court Affirms a County Must Give Landowners Statutory Notice of Change to Ordinance
/A special trial court judge voided Tipton County’s overlay district which banned various land uses on rural ground because the county failed to provide required statutory notice to interested landowners. A copy of the decision is available here. We are proud to report this result on behalf of a group of Tipton County farmers.
In August 2022, the Tipton County APC published notice in a local newspaper that the APC would be considering an “overlay district” zoning amendment at an upcoming meeting. The county admitted it never sent notice to any interested landowners. Instead, the County claimed all landowners in the county were “interested” and that the newspaper legal notice was good enough. The overlay district banned more than 30 land uses, including confined feeding operations and solar farms, on nearly 6,000 acres. The APC held a public hearing, continued the matter several times, and eventually gave a favorable recommendation to a version of the overlay district in November 2022.
various overlay district maps
The County Commissioners posted notice at the courthouse that they would consider the overlay district at their next meeting on November 21, 2022. The Commissioners considered the overlay at the November meeting but did not vote on it until December 5, 2022. During the December 5 meeting, various citizens and one of the commissioners recognized there had been a lack of information about the overlay district provided to the public. Nonetheless, the County Commissioners voted 2-1 to approve the overlay. We filed a challenge to the overlay on behalf of a group of Tipton County farmers concerned about their private property rights.
The County first argued that the farmers did not have “standing” to bring the lawsuit, since at least some of the farmers attended some of the hearings regarding the overlay district. We refuted that position, explaining that since the farmers owned land affected by the overlay district, they had standing and were appropriate plaintiffs in the case. The Court agreed with us.
Next, the County contended that it was not required to mail notice of the proposed overlay district to interested persons. It claimed the legal notice published in the paper was sufficient to satisfy the Indiana Code’s requirements. On behalf of the farmers, we obviously disagreed. Indiana Code requires a county to provide two separate types of notice prior to holding a public hearing required to change a zoning ordinance. At least 10 days before the hearing, the APC must (a) publish notice in the paper, and also (b) give notice to interested parties. The statute allows the APC to decide, by local rule, who are interested parties and how they may receive notice. Tipton County’s local rules provide that “interested parties” include everyone in the county and their notice shall be by publication.
The County argued it had discretion to collapse the interested parties notice into the general publication notice. In our briefing and at the hearing, we explained that the statute required a separate, additional notice to interested parties. The Court agreed with us and held that Tipton County violated Indiana Code when it passed the overlay district ordinance without giving the required statutory notice to interested parties and without even posting signs at the affected properties. The Court rejected the County’s assertion that it would cost too much to notify all the interested parties, explaining:
“When considering the fact that the county sought to limit...the rights of 242 owners of property consisting of nearly 6,000 acres, this cost of due process is hardly onerous.”
Because the County violated Indiana law in passing the overlay district, the Court held the overlay district was void. For the same reasons, the Court concluded the County had violated the landowners’ due process rights.
The Court considered several other claims, including arguments that the overlay district was an impermissible taking or violated the landowners’ vested contractual rights under our state and federal constitutions, but held there were disputed facts that prevented judgment on those claims at this early stage in the case. Since the Court already ruled the overlay district was void, these claims did not need to be resolved at this time—but they may be relevant in Tipton County or elsewhere as zoning ordinances quickly change.
Contact an attorney with your land use questions, including the legal requirements to change a zoning ordinance.
