ILNews

Suit challenging construction of asphalt plant timely filed

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The Indiana Court of Appeals determined that the Jeffersonville director of planning and zoning and the city building commissioner are public officers under Indiana Code 34-11-2-6. The judges discovered there is no state law defining public officer under this statute.

In Patricia J. Barrow and Charlie Hanka v. City of Jeffersonville, Jeffersonville Planning and Zoning Dept., Jeffersonville Board of Zoning Appeal, Jeffersonville Building Comm., et al., 10A05-1112-PL-647, Patricia Barrow and Charlie Hanka in August 2010 sued the city of Jeffersonville and other entities after the city’s Director of Planning and Zoning, Chester Hicks, and Building Commissioner, Russell Segraves, approved and issued an Improvement Location Permit to allow MAC Construction and Excavating to lease a portion of property to operate an asphalt plant. The property was used as a quarry.

Barrow and Hanka claimed the July 14, 2005, zoning interpretation and the Aug 4, 2005, ILP were improperly issued. They sought revocation of both. MAC argued the issue was barred by the statute of limitations under I.C. 34-11-2-6, which the trial court granted.

Under the statute, suits against a public officer must be filed within five years of when the cause of action accrued. The plaintiffs claimed the court erred when it found Hicks and Segraves were public officers protected by the statute of limitations. Determining how to define “public officer” for the first time under this statute, the Court of Appeals affirmed. It took into account statutes and caselaw.

“… we believe that in order for an individual to be a public officer under Indiana Code section 34-11-2-6, it must be determined that the individual holds a position for which duties are prescribed by law to serve a public purpose. We further conclude that the taking of an oath is not required to be a public officer, but the fact that one has been taken is a strong indicator of the position being one of a public officer,” Judge James Kirsch wrote.

The judges found both men to be public officers, so the statute of limitations is applicable. However, the court erred in granting summary judgment because the plaintiffs’ cause of action wasn’t barred by the five-year statute of limitations. The plaintiffs’ couldn’t have learned of the July 2005 letter or issuance of the ILP in August 2005, Kirsch continued. The earliest they could know of the plant construction was Nov. 30, 2005, when a public hearing on the construction was scheduled.

The plaintiffs filed their complaint on Aug. 16, 2010, which is within the five years of the date on which the cause of action accrued. The judges remanded the case for further proceedings.

 

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