BRADFORD, Judge.
Appellants-Petitioners The Kroger Company and Kroger Limited Partnership I (collectively "Kroger") appeal the trial court's order granting summary judgment in favor of Appellee-Respondent Plan Commission of the Town of Plainfield ("Plan Commission"). Concluding that the Town of Plainfield Zoning Ordinance ("Plainfield Zoning Ordinance") meets the specificity requirement of the Zoning Enabling Act but that the Plan Commission's findings are not sufficient to support the denial of Kroger's Plan Approval Petition ("Petition"), we reverse and remand to the trial court for further proceedings consistent with this opinion.
Kroger owns and operates a retail store located at 1930 East Main Street, Plainfield, Indiana ("the Property"), which is located at the intersection of State Road 267 and U.S. 40. On October 29, 2009, Kroger submitted a Petition, which was designated DP-09-013, seeking approval of its development plan to construct a fuel center on the western edge of its Property. On December 7, 2009, staff from the Plainfield Department of Zoning and Planning prepared and submitted a report ("the Staff Report") to the Plan Commission regarding Kroger's Petition. The same day, the Plan Commission conducted a public hearing on Kroger's Petition, and Kroger was allowed to present all material it deemed necessary in support of its Petition. At the conclusion of the hearing, the Plan Commission voted to deny Kroger's Petition.
On December 31, 2009, the Plan Commission issued its Negative Findings of Fact stating the reasons for its denial of Kroger's Petition. Therein, the Plan Commission found: (1) the proposed development is not appropriate to the site and its surroundings; (2) the proposed development is not consistent with the intent and purpose of the Plainfield Zoning Ordinance; and (3) the proposed development would create a public safety hazard.
On January 5, 2010, Kroger filed its Verified Petition for Writ of Certiorari and Judicial Review, Declaratory Judgment,
Initially, we note that although the parties have styled their motions as cross-motions for summary judgment, the motions are more appropriately classified as motions for judgment on the administrative record because this court, like the trial court below, sits as a reviewing court over the Plan Commission's denial of Kroger's Petition. When reviewing the decision of a plan commission, we are bound by the same standard of review as the trial court. Hoosier Outdoor Adver. Corp. v. RBL Mgmt., Inc., 844 N.E.2d 157, 162 (Ind.Ct.App.2006), trans. denied. The scope of judicial review is established by Indiana Code section 4-21.5-5-14(d), which permits a court to set aside an agency action that is: (1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) contrary to constitutional right, power, privilege, or immunity; (3) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right; (4) without observance of procedure required by law; or (5) unsupported by substantial evidence. Indiana Code section 4-21.5-5-14(a) further provides that the party asserting the invalidity of agency action bears the burden of proof.
Equicor Dev., Inc. v. Westfield-Washington Twp. Plan Comm'n, 758 N.E.2d 34, 37 (Ind.2001).
Kroger contends that the Plan Commission's denial of its Petition is erroneous because the Plainfield Zoning Ordinance does not satisfy the specificity requirement of the Zoning Enabling Act.
Van Vactor Farms, Inc. v. Marshall Cnty. Plan Comm'n, 793 N.E.2d 1136, 1143 (Ind. Ct.App.2003).
Hendricks Cnty. Bd. of Comm'rs v. Rieth-Riley Const. Co., 868 N.E.2d 844, 849-50 (Ind.Ct.App.2007). The Zoning Enabling Act itself provides a non-exclusive enumeration of the type of development requirements that "must be specified under section 1402(b)(1)." Ind.Code § 36-7-4-1403(a). In general, this list permits the following development requirements:
Indiana Code section 36-7-4-1403(b) further provides that the development requirements specified under subsection (a)(3) concerning the management of traffic may ensure the following:
Once the legislative body enacts an ordinance, detailing the development requirements for the different zoning districts, a plan commission is awarded the exclusive authority to determine whether a party's proposed development plan satisfies the development requirements for the particular zoning district. See Indiana Code § 36-7-4-1401.5(a) & (b). Elaborating on the powers and duties of the plan commission, the Zoning Enabling Act specifies that:
Indiana Code § 36-7-4-1405.
It is well-settled that zoning ordinances must be precise, definite, and certain in expression so as to enable both the landowner and the municipality to act with assurance and authority regarding local land use decisions. Rieth-Riley, 868 N.E.2d at 852 (citing T.W. Thom Const., Inc. v. City of Jeffersonville, 721 N.E.2d 319, 327 (Ind.Ct.App.1999)). This requirement is dictated by due process considerations in that the ordinance must provide fair warning as to what the governing body will consider in making a decision. Id. Further,
Id. at 853.
In claiming that the Plainfield Zoning Ordinance does not satisfy the specificity requirement of the Zoning Enabling Act, Kroger relies on Rieth-Riley, in which we concluded that the Hendricks County Zoning Ordinance's provisions regarding development requirements did not do so. Id. at 853-54. In reaching this conclusion, the Rieth-Riley court reviewed the Hendricks County Zoning Ordinance, which stipulated in relevant part, that review of a development plan would consist of an evaluation of the plan's consistency with:
Id. at 852. Specifically, the court examined the specificity of the "general welfare" review criteria. Id. at 852-53. The court concluded that the ordinance lacked the necessary specificity as it gave the plan commission "unfettered power to deny development plans if it decides, by whim or otherwise, that the plan contravenes one of the factors listed in the Ordinance." Id. at 853. Thus, the court further concluded that the ordinance failed to provide landowners with "fair warning as to what the governing body will consider when formulating its decision." Id.
Appellant's App. p. 45.
The Plainfield Zoning Ordinance dictates that a party wishing to build in a commercial or industrial district that is located within 600 feet of a Gateway Corridor
Upon review, we conclude that unlike in Rieth-Riley, the Plainfield Zoning Ordinance provides the necessary specificity to provide landowners with fair warning as to what the governing body will consider when formulating its decision. The Plainfield Zoning Ordinance states that the Plan Commission may approve a development plan upon finding that the Development Plan complies with all applicable Development Standards, and sets forth specific development standards relating to site, landscape, lighting, and sign plans, as well as building elevations. The Plainfield Zoning Ordinance also specifically notifies petitioners that their development plan must comply with the applicable provisions of the Subdivision Control Ordinance and the Architectural and Site Design Review if waiver of these requirements has not been granted. The Plainfield Zoning Ordinance further states that the Plan Commission may approve a development plan upon finding that the proposed development is appropriate to the site and its surroundings.
Furthermore, like in Rieth-Riley, the Plainfield Zoning Ordinance also states that the Plan Commission may approve a development plan upon finding that the proposed development is consistent with the intent and purpose of the Ordinance. However, while in Rieth-Riley, the court notes that the Ordinance did not provide a detailed statement notifying petitioners of its intent and purpose, the Plainfield Zoning Ordinance explicitly sets forth its intent and purpose in Article 1.3 of the Ordinance. We conclude that in the instant matter, unlike in Rieth-Riley, upon reading the Plainfield Zoning Ordinance as a whole, the enumerated standards within provide Kroger with detailed information regarding what development requirements and factors the Plan Commission will consider when formulating its decision about whether to allow the proposed development. Accordingly, we find this court's conclusion in Rieth-Riley distinguishable from the instant matter.
Kroger also contends that the Plan Commission's findings are not sufficient to support the denial of its Petition. Indiana Code section 36-7-4-1406(a) provides that "[a] plan commission shall make written findings concerning each decision to approve or disapprove a development plan." Written findings are necessary to insure adequate judicial review of administrative decisions. Cundiff v. Schmitt Dev. Co., 649 N.E.2d 1063, 1068 (Ind.Ct.App. 1995). Each of the specific and concrete reasons for the denial should be stated in the findings and should not be raised in a piecemeal fashion so that the petitioner may attempt to amend its plan to comply with the ordinance. Van Vactor Farms, 793 N.E.2d at 1145. The findings are insufficient to support the commission's ultimate findings if they are merely a general replication of the requirements of the ordinance at issue. See Town of Munster Bd. of Zoning Appeals v. Abrinko, 905 N.E.2d 488,
In denying Kroger's Petition, the Plan Commission found: (1) the proposed development is not appropriate to the site and its surroundings; (2) the proposed development is not consistent with the intent and purpose of the Plainfield Zoning Ordinance, and (3) the proposed development would create a public safety hazard. (Appellant's App. 94) These findings are merely a general replication of a few of the considerations set forth in the Plainfield Zoning Ordinance. See id. The findings do not provide sufficient specificity to inform Kroger why its proposed development of a gas station was not appropriate to the site and its surroundings or consistent with the intent and purposes of the Plainfield Zoning Ordinance. Likewise, the findings do not inform Kroger how its proposed development would create a public safety hazard.
In order to be sufficient, the findings must clearly explain why Kroger's proposed development of a gas station failed to meet the requirements of the Plainfield Zoning Ordinance. See Van Vactor Farms, 793 N.E.2d at 1145 (providing that findings should notify petitioner why the proposed development failed to comply with the ordinance so that petition may have the opportunity to amend its proposed development plans to comply with the ordinance). Here, the findings fail to do so. Accordingly, we conclude that the Plan Commission's findings are insufficient, as stated, to support its denial of Kroger's Petition.
Having concluded that the findings issued by the Plan Commission are insufficient, we reverse the trial court's order affirming the Plan Commission's denial of Kroger's Petition and remand the matter to the trial court for further proceedings. Upon remand, we instruct the trial court to remand the instant matter to the Plan Commission to allow the Plan Commission the opportunity to amend, if possible, the issued findings to provide sufficient specificity to explain how Kroger's Petition failed to meet the requirements of the Plainfield Zoning Ordinance so that Kroger may have the opportunity to attempt to amend its Petition to comply with the Ordinance. However, we note that the Plan Commission must refrain from issuing any additional unrelated findings. See id. (providing that a plan commission may not raise asserted defects in a piecemeal fashion). In addition, we remind the Plan Commission that approval of a petition that meets the requirements of the Plainfield Zoning Ordinance constitutes a ministerial as opposed to a discretionary act. See id. at 1148. Therefore, if the Plan Commission is unable to amend its findings to explain with specificity how Kroger's Petition failed to meet the requirements of the Plainfield Zoning Ordinance, the Plan Commission should grant Kroger's Petition.
The judgment of the trial court is reversed and remanded to the trial court for further proceedings consistent with this opinion.
BAKER, J., and MAY, J., concur.
Appellant's App. p. 56.
