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Indiana Law Annotated

Vol. 17 No. 13
November 22, 1999

Table of Contents

ELS OPPOSES GOLF COURSE

By Margaret McDavid, President, Environmental Law Society
Last week the Environmental Law Society voted to oppose the current proposal to construct a private golf course on public, university-owned forested land. Monday and Tuesday, Nov. 22-23, there will have petitions and fact sheets available in the lobby of the law school between 11-1. Also, petitions and fact sheets will be posted in the faculty mailroom. The petition will be forwarded to the university trustees.

While the environmental concerns are the basis for our primary objections, we also oppose the golf course for reasons explained below:

What does this plan include?

1. This project has been estimated to cost between $12 million and $18 million and would be the new home for the men's and women's golf teams.

2. The proposal includes not only an 18 hole, championship golf course, but also a clubhouse, swimming pool, 27-unit lodge, practice facility, conference center, and tennis courts.

Environmental Facts and Impacts

1. The habitat that would be destroyed by the construction of a golf course is ecologically unique and houses hundreds of plant and animal species. Ginseng, snakes, orchids, and at least 133 species of birds (including the Cerulean Warbler a species of special management concern) can be found in the area surrounding Lake Griffy.

2. The forest surrounding Lake Griffy is currently the largest block of contiguous forest in Monroe county. This proposal calls for deforestation of ridge tops to construct fairways.

3. The slopes and ravines around Lake Griffy are steep and inherently fragile. Erosion of these already shallow soils will be intensified if a golf course is built. The rate of sedimentation that Lake Griffy is currently experiencing would be increased.

4. The golf course would be built across the South Fork of Lake Griffy, adding chemicals to what is already the most polluted of the three arms that feed the lake.

5. Lake Griffy is Bloomington's emergency drinking water supply. The chemical fertilizers and pesticides, on which all golf courses depend, would be present in runoff from the course and would end up in Lake Griffy.

6. The environmentally sensitive Sycamore Valley would potentially

experience increased flooding and sedimentation. These floods would also wash agrichemical pollutants into the lake.

7. Several holes are proposed in sensitive riparian zones.

8. Runoff from the golf course would increase nutrient loading, causing eutrophication and eventual oxygen depletion in Lake Griffy.

Is This An Appropriate Use of Land?

1. While this land in its current state serves as an "outdoor classroom", a championship golf course would do nothing to further the University's mission of teaching and research.

2. Scientific research is being conducted in this area by Indiana

University faculty and students. These studies would be adversely

affected by the construction of a golf course.

3. This private golf course would restrict access to land that is rightfully "owned" by the citizens of Indiana.

4. The demand for an additional golf course and potential economic gains for the University are questionable. Market research has not been conducted, and public opinion has not been adequately assessed. Previous market research conducted in Bloomington has even shown that this town does not need another golf course.

5. Developers contend that IU would not bear the costs of development, but there is reason to doubt the truth of this statement. The tennis pavilion and the Poplars building both began as private developments on IU land and ended with IU's financial investment to bail out developers.

6. Clubs and classes currently use this area for trap and skeet purposes and would be unable to do so if a golf course is constructed.

Access Limited

1. Membership to this facility would include a substantial initial fee, as well as monthly payments. Various levels of membership and corresponding fees have been proposed:

Founding: $10, 000 + $2,000/month

Business: $20,000 + $2,500/month

Local: $6,000 + $200/month

Faculty/Staff: $3,000 + $150/month

Junior Varsity: $3,500 + $150/month

Student: $1,000 + $75/month

2. A cap of 2,400 members would be imposed.

Objections to the Process

1. To protect the environment, City and County ordinances set standards for development projects. These ordinances address erosion control, slope restrictions, and tree preservation. The City of Bloomington, some faculty, and the IU Student Association have all asked the IU Administration to meet these same standards, but they have not agreed to this, instead offering that they will set their own standards.

2. The United States Golf Association's list of best management practices states that golf course developers should listen to public input when planning to build a new course. This practice has not been followed. Golf course proponents have gone so far as to state that input from Bloomington residents not affiliated with IU will not be factored into the decision making process, despite the expected impacts to Lake Griffy, a city owned property that is enjoyed by many Bloomington residents.

3. The Bloomington community, including Indiana University students and faculty, were not adequately informed of these plans and their impacts. In fact, most of the work toward building a golf course has been done in the summer when the majority of students have not been in town to have their voices heard.

4. Although public concerns have been enormous, University officials maintain that they are now in a phase of "closed negotiations" with Nicklaus Design.

If you have any questions, please contact us at els@indiana.edu or

mcdavid@indiana.edu.

INDIANA STATE COURT OF APPEALS

On Friday, Dec. 3, at Noon, the Indiana Court of Appeals, Judge John G. Baker of Monroe County, Judge Edward W. Najam, Jr. of Monroe County, and Judge L. Mark Bailey of Decatur County) will hear the appeal of the case T.W. Thom Construction v. Hyun Lee. The arguments will last about an hour. The Court will answer general questions, not related to the case argued, immediately after the argument.

Facts and Procedural History

T.W. Thom Construction, Inc. ("Thom") and Hyun Lee ("Lee") are owners of adjoining parcels of real property in Jeffersonville, Indiana. Both parcels are within the city limits and, therefore, are subject to the zoning ordinances of the City of Jeffersonville ("City"). This appeal involves a conflict between the parties over the construction of a mobile home park.

Thom is constructing a residential subdivision. Lee is building a mobile home park directly adjacent to Thom's development. In preparation for construction of the park, Lee submitted various documents to the City including a site plan, a utility plan, an erosion and sediment control plan, a topographic plan and a sanitary sewer plan. The City gave its approval in March 1996. Prior to construction, Lee also met with the Director of Planning and Zoning and other City officials concerning the proposed mobile home park. However, Lee never applied for or obtained any form of written approval from the Building Commissioner or Board of Zoning Appeals.

In June 1996, Lee obtained a permit approving construction of the mobile home park from the Indiana State Department of Health ("State") as required by Indiana code Section 16-41-27. In March 1998, he began construction of the park. Shortly thereafter, Thom filed an action in the Clark Circuit Court seeking a preliminary injunction and a declaratory judgement prohibiting Lee from proceeding with the development. In his complaint, Thom alleged that Lee had failed to comply with local zoning regulations before starting construction of the mobile home park. In response, Lee filed a motion for summary judgement in which he contended that he was entitled to proceed with the development of his real property based on the State's approval. In February of 1999, the trial court granted summary judgement in favor of Lee. Thom now appeals.

Parties' Contentions

Initially, there is a dispute between the parties over whether Thom failed to exhaust all administrative remedies provided in the Zoning Code before filing an action to enjoin the construction of Lee's mobile home park. For the first time on appeal, Lee contends that this court is without jurisdiction to grant any relief requested by Thom because the Zoning Code provides that any person who is "adversely affected" by a Building Commissioner's decision may appeal the decision to the Board of Zoning Appeals. Lee argues that Thom failed to request the Building Commissioner to enforce the ordinance to require that Lee obtain a special exception permit or other form of local approval before beginning construction of the mobile home park. Thom responds that Lee has waived the issue of exhaustion as he failed to raise it in the trial court. Thom also asserts that Lee never received any formal written approval from the Building Commissioner or the Board of Zoning Appeals authorizing construction of the mobile home park. Hence, there was no adverse decision from which he could have appealed.

On the merits, Thom presents three issues for our review. First, Thom contends that the trial court erred when it held that Lee had complied with all statutory and regulatory requirements for construction of mobile home parks. He maintains that Title 410, Section 6-6 of the Indiana Administrative Code, provides that mobile home park sites shall meet all requirements of the local zoning commission and "shall be approved" by said commission before construction begins. (emphasis added). Here, there is no evidence that the local zoning commission approved the construction of Lee's mobile home park.

Lee responds that the language "shall be approved" does not mean that the local zoning body must actually consider and approve all mobile home park proposals. Rather, the provision ensures that when a city chooses to exercise its authority to regulate a mobile home park by way of a zoning restriction, the local zoning commission has an opportunity to review and approve or disapprove the development. In this case, the City has chosen not to regulate the construction of mobile home parks and to require only that the development be approved by the State Department of Health. Thus, Lee contends that once the State issued a permit approving Lee's proposal, no further approval from the local government was necessary.

Second, Thom argues that the trial court erred when it concluded that Lee was permitted, pursuant to the language of the Zoning Code, to construct a mobile home park in an area zoned B-3 (General Business). specifically, he contends that the Zoning Code states that no land shall be used for any purpose other than a use which is "permitted and specified" in a district in which such land is located. Here, both parties concede that the Zoning Code does not include mobile home parks in any use category. Thom maintains that since mobile home parks are not specified in the ordinance, they are excluded by implication. Therefore, Lee must seek a special exception permit to construct a mobile home park.

Lee counters that a landowner is not required to seek a special exception permit or other administrative approval to build a mobile home park because the City clearly intended that mobile homes be permitted in mobile home parks located in the city. In addition, he asserts that the Zoning Code permits the Board of Zoning Appeals to grant only those special exceptions which are enumerated in the ordinance. Given that mobile home parks are not listed as a special exception in any use category, the code neither permits nor requires the Board of Zoning Appeals to issue a special exception permit for Lee's mobile home park.

Third, Thom contends that the trial court erred when it held that Lee had obtained all required ministerial approvals from the City before construction of the mobile home park began because under Indiana law the City was required to approve the mobile home park application in writing. He argues that a mobile home park is defined in the Zoning Code in substantially the same way as a subdivision. Section 36-7-4-707 of the Indiana code requires local planning commissions considering an application for a subdivision plat to issue a decision granting or denying the application in writing. Here, the City has failed to approve the construction of Lee's mobile home park in writing. Thus, any informal approval the City may have granted to Lee was contrary to Indiana law. Lee does not respond to Thom's assertion.

ACADEMY OF LAW ALUMNI FELLOWS PROFILE

Who are those people whose photographs are on the first-floor wall? In this series of profiles, we introduce you to the members of the Academy of the Law Alumni Fellows. The Fellows are the recipients of the highest honor the Law School bestows on its alums. We hope that each profile will help you reflect on the successes of our alumni as well as some possibilities that are ahead for you.

JOHN SIMPSON HASTINGS
John Simpson Hastings, through ability, charm, and heritage was the leading lawyer and citizen of his hometown, Washington, Indiana. He might have rested comfortably in the respect and affluence that position earned him, however, he was impelled by a sense of responsibility to a larger community to join with those who viewed Indiana University as a focus of excellence in education in the heartland of the nation.

His service to this institution began on the campus, continued through leadership in the university's Memorial Fund drive of the 1920s, and was made more fulfilling by his election to the Board of Trustees in 1936. In 1950, his fellow trustees (or board members) elected him President. This tenure on the Board of Trustees ended with his move to Chicago in 1957.

Mr. Hastings was an outstanding legal practitioner, valued by his clients and respected by his peers. In 1957 he was appointed to the United States Court of Appeals, Seventh Circuit. As a jurist, Judge Hastings, already possessing the wisdom and sensitivity of experience, applied a keen understanding of the role of the court and a profound scholarship to establish a standard of excellence, fairness and integrity that continues as a heritage of the court today.

Mr. Hastings' portrait is also displayed in the Trial Courtroom.

NEWS FROM THE RECORDER'S OFFICE

FINAL EXAMS
Fall semester exam numbers are available in our office.

SPRING 2000 FEES
Spring semester fees are due on Dec. 10. Forthcoming loans will defer payment of loans.

ANNOUNCEMENTS

RESEARCH ASSISTANT NEEDED
Professor Buxbaum would like to hire a research assistant for next semester to work on a project involving international conflicts of law. Please apply directly to Professor Buxbaum in Room 245.

CLINICAL OPPORTUNITY
There still are opening in the Department of Environmental Management for Independent Clinical Projects (2 pass/fail credits) for the Spring 2000 semester. Please see Dean Fromm if you are interested.

EVENTS CALENDAR
Requests for room reservations may be sent to Denise at bl- events-law@ exchange.indiana.edu. When placing your request, be sure to include the name of the event (along with the group's name, if applicable), the date and time of the event, the expected number of attendees, and the particular room you are requesting. Please give at least 5 days advance notice of your request. All requests will be confirmed via email within 48 hours of the request.

AUDIO - VIDEO SERVICES
Requests for AV services may be sent to Beth at av@exchange. indiana.edu. Please include the name of your group and the e-mail address of the contact person, a description of what you want to do, and the date, location, starting time and duration of the event. Requests must be made at least 48 hours in advance and will be confirmed by email.

FINAL ILA ISSUE
The deadline for the final issue of the Indiana Law Annotated for the Fall 1999 volume will be Monday, Nov. 29 at Noon for publication on Tuesday, Nov. 30.

Updated: 19 November 1999