COA finds homeowner was one-day late in appealing order to demolish his home

An Indiana man failed to craft an argument to convince the Court of Appeals of Indiana that his complaint against the local town’s order for the demolition of his home was timely filed and the statute mandating a town provide 10-day notification of a demolition order is unconstitutional.

On Oct. 26, 2020, the Town of Andrews Town Council ordered the solicitation of bids for the demolition of a home owned by Nathan McCain, trustee of the 237 Columbia Street Land Trust. The municipality filed copies of the order with the county auditor.

McCain received the order in the mail Oct. 30, and 11 days after the town issued the order, he filed a complaint in Huntington Circuit Court. The court granted the town’s motion to dismiss, finding the McCain’s lawsuit was untimely under Indiana Trial Rule 12(b)(6).

The Court of Appeals affirmed in Nathan McCain, as Trustee of the 237 Columbia Street Land Trust v. Town of Andrews, Indiana, and Huntington Countywide Department of Community Development, 21A-PL-1252.

McCain first argued that his complaint was timely because the 10-day deadline was not triggered until Oct. 27 when the town filed the order with the auditor.

The unanimous panel found the language in Indiana Code 36-7-9-8(b) and the structure of Indiana’s Unsafe building Law, I.C. Chapter 36-7-9, indicate the Town “took action” on the day of the hearing. The action occurred at the hearing and not when the next day when the Town filed the order with the county auditor.

“By its very definition, ‘action’ contemplates doing something, not memorializing it,” Leanna Weissmann wrote for the court. “This interpretation promotes the Town’s position that its action occurred during the hearing – when it voted to order the solicitation of bids for demolition – rather than the next day, when that action was recorded with the auditor’s office.”

Likewise the appellate court was unpersuaded McCain’s contention that Indiana Code § 36-7-9-8(b) is unconstitutional under Article 1, Section 12 of the Indiana Constitution. He argued that because he received notice of the order only 1 day before the 10-day statutory deadline, the deadline as applied as “arbitrarily unreasonable.”

The panel, citing Melton, v. Ind. Athletic Trainers Bd, 53 N.E.3d at 1219 (Ind. Ct. App. 2016), noted due process requires notice and an opportunity to be heard.

“…the Town mailed copies of every order related to enforcement of the Unsafe Building Law to both the dwelling address and the Trust’s address,” Weissmann wrote. “The first order was sent on December 20, 2019, when the dwelling was deemed unsafe. The Town sent an additional 4 orders over the next 10 months, each of which stated the action taken and the need for the repair to the premises. Despite the multiple notices concerning the safety risks posed by the dwelling, most of the hearings went unattended by anyone with a property interest. No one appeared for the last two hearings, nor did anyone appear for an inspection of the premises a week prior to the last hearing.

“Record of the October 26, 2020 hearing, when the Town ordered solicitation of demolition bids, was delivered to the Trust on October 30, within 4 days of the statutory deadline, Weissmann continued. “In other words, McCain’s due process argument amounts to an attempt to circumvent his own inaction.”