Public Lawsuit Statute not applicable in Tipton Co. case

The Indiana Public Lawsuit Statute that requires litigants to post bond when bringing a public lawsuit did not apply in a Tipton County case in which a couple was seeking to protect their own private interests, rather than public interests, the Indiana Court of Appeals decided Wednesday.

When the Tipton County Board of Commissioners determined that a facility on Jefferson Street in Tipton would be the location of a newly constructed law enforcement center, the commissioners sought an exception from the Tipton County Board of Zoning Appeals in May 2016 to construct the facility on the Jefferson Street property. Robert and Gayle Prather, whose property is 89 feet from the property line of the proposed facility, remonstrated, but the BZA granted the commissioners’ request.

The Prathers then filed a petition for judicial review, raising a variety of arguments, including the assertion that the construction of the facility would reduce their real estate value by up to 21 percent, that the additional traffic would be problematic, that the BZA’s written findings failed to include a condition that the structure be no closer than 245 from the nearest neighboring property line and that a fair hearing was not conducted because one person was improperly allowed to vote on the petition.

The trial court granted the commissioners’ request to intervene, and in August 2016 they filed a motion to set bond pursuant to the Indiana Public Lawsuit Statute, arguing that the petition for judicial review qualified as a public lawsuit, so the Prathers were required to post bond. The trial court denied that motion, holding that the Public Lawsuit Statute, Indiana Code 34-14-5, did not apply.

On appeal, the commissioners argued that the trial court erred in finding that the statute was inapplicable to the Prathers’ petition. But the Indiana Court of Appeals rejected that argument Wednesday, noting that in Dible v. City of Lafayette, 713 N.E.2d 269, 274 (Ind. 1999), the Indiana Supreme Court held that “an action by an individual landowner seeking to protect his or her private interest in property does not constitute the basis for a public lawsuit.”

Further, Judge Michael Barnes wrote that the “controlling factor” in determining whether an action is a public lawsuit is “whether the plaintiff seeks ‘to protect public or private interests,’” as was held in Buse v. Trustees of Luce Twp. Reg’l Sewer Dist., 953 N.E.2d 519, 525 (Ind. Ct. App. 2011). In the Prathers’ case, their main concern was the potential devaluation of their property, which is a private interest, Barnes said.

Thus, because the couple was seeking to protect their own interests, rather than those of the public, the Public Lawsuit Statute did not apply. The appellate court remanded the case of Tipton County Board of Commissioners and City of Tipton Board of Zoning Appeals v. Robert and Gayle Prather, 80A02-1611-MI-2533, for further proceedings.

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