Opinion
IP 99-0141-C-T/G
August 2, 2000
Entry Denying the Plaintiffs' Application for Preliminary Injunction
The Plaintiffs, Linda Morrison Boczar and James J. Boczar undertook certain construction, renovation and/or remodeling work on their residential property. What began as a project full of promise and hope for the Boczars and the community in which they live has turned into a neighborhood nightmare, something to be dreaded by all homeowners. The planning for this project began in 1996 and the construction work got underway in 1998. As of today, the project is only partially completed. The Boczars' house is torn apart and only partly reconstructed, standing in a starkly unfinished state as a reminder of this intractable dispute to all who pass. The Defendant City of Indianapolis (the "City") has revoked the permits it had issued to the Plaintiffs for the project. On January 28, 1999, the Plaintiffs commenced this action against the Defendants, and on May 10, 1999, they filed an Application for Preliminary Injunction, pursuant to FED. R. CIV. P. 65, asking the court to order the Defendant City through its Department of Metropolitan Development and Defendants Gene R. Lausch and Rhonda J. Fields to rescind the revocation of permits issued to them on or about September 2, 1998, and to rescind or withdraw stop-work orders regarding certain construction, renovation and/or remodeling work on their residential property. The Defendants oppose the application. On May 26, 1999, the court conducted a hearing on the application, at which time it heard evidence and oral argument. Having carefully reviewed the evidence and the law governing this case, the court now issues the following as Findings of Fact and Conclusions of Law pursuant to FED. R. EVID. 52(a). As this entry explains, the demise of this project is the result of a deceptive swap of plans by the Boczars in dealing with the two agencies regulating the project.
Should any of the findings of fact be more appropriately deemed conclusions of law, or vice versa, then they should be so deemed regardless of how such findings or conclusions are labeled.
I. Findings of Fact
1. The Plaintiffs, Linda Morrison Boczar and James J. Boczar, own a house at 4821 North Meridian Street, Indianapolis, Indiana. This location is within an area subject to the Meridian Street Preservation Act ("MSPA"). See IND. CODE §§ 36-7-11.2-1 through 36-7-11.2-67. They had purchased the house in July 1996.
Plaintiff Linda Morrison Boczar was the sole titleholder of the property and sole plaintiff in this action until just days before the preliminary injunction hearing. On May 24, 1999, Ms. Boczar issued a deed for the property to her husband and herself. Mr. Boczar was then permitted to join the litigation as a plaintiff. Mr. Boczar testified at the preliminary injunction hearing but Ms. Boczar did not. The reasons, if any, for this change of title ownership were not revealed to the court.
2. As a result of the MSPA, the Meridian Street Preservation Commission ("MSPC") is constituted. IND. CODE § 36-7-11.2-18. The members of the MSPC are appointed as follows: (1) the executive of Indianapolis appoints: (a) an architect registered under Indiana Code § 25-4-1 who at the time of appointment is a practicing architect residing in Marion County, and (b) an employee of the department of metropolitan development who is employed by the department at the time as a professional city planner; IND. CODE § 36-7-11.2-20; and (2) the governor appoints: (a) an individual with a demonstrated interest in and knowledge of historic preservation, (b) an owner and occupant of a single or double family residential dwelling situated on Meridian Street property, and (c) a member of each of the following neighborhood associations: (i) Butler-Tarkington Neighborhood Association, (ii) the Meridian-Kessler Neighborhood Association, (iii) the Meridian Street Foundation, and (iv) the Riverview-Kessler Neighborhood Association; and (d) a member of the Indiana historical society. IND. CODE §§ 36-7-11.2-21, 36-7-11.2-22.
3. Construction, alteration and modification of structures within the area subject to the MSPA is regulated by the MSPC. IND. CODE § 36-7-11.2-27; see also IND. CODE § 36-7-11.2-61. Before virtually any significant construction, alteration or demolition of a structure subject to the MSPA can be performed, a "Certificate of Appropriateness" must be obtained from the MSPC. IND. CODE § 36-7-11.2-61.
4. Construction, alteration and demolition of structures in the area of the Plaintiffs' house is also regulated by the City through its Department of Metropolitan Development ("DMD"). In order to perform significant construction or alteration of the Plaintiffs' house, they not only would have to obtain a Certificate of Appropriateness from the MSPC, but also certain permits from DMD such as a Building Permit and an Improvement Location Permit. (Rev. Code § 536-201(a) (1998) (requiring, with certain exemptions not applicable here, the issuance of a building permit by the neighborhood and development services division before construction may begin in the City of Indianapolis); § 536-205(b)(3) (requiring application for building permit to be supported by an improvement location permit when such a permit required); see also IND. CODE § 36-7-11.2-61(c) ("The [DMD] may not issue a permit for the construction, reconstruction, alteration, or demolition of a structure in the area unless the application for the permit is accompanied by a certificate of appropriateness.").
The DMD was established pursuant to Indiana Code § 36-3-5-4 and is composed of five divisions, including the Division of Neighborhood Services and the Division of Permits. (Rev. Code § 231-101 (1998)).
5. In August 1996, the Plaintiffs began the process of obtaining the required approvals from the MSPC and the DMD to conduct a major reconstruction or renovation project on their house. Plaintiff Linda Morrison Boczar filed an application for a Certificate of Appropriateness with the MSPC. As required, that application included a set of plans describing and illustrating the things the Plaintiffs intended to do to the house in the renovation project. Generally, those plans called for erection of a new facade-French Eclectic with a two-story addition, a three-car detached garage, a front entry turret vestibule and rear entry mud room/breezeway, the addition to be in limestone and cement plaster with new limestone to resemble the current lower house facade, installation of all new windows, and trim features in gray and iron work in black or gray around the windows, doors, and wall edges.
On January 31, 1997, the MSPC approved the application and issued a Certificate of Appropriateness. In granting the Certificate, the MSPC ordered that the improvements to the Boczars' property "shall be per plans on file with the Commission." (Compl., Ex. F. ¶ 3.) The Certificate had no expiration date. The MSPC retained the set of plans submitted with the application and stored them at the office of its Chairman, David Kingen, who is also an employee of DMD. The storage area of MSPC is within DMD offices.
6. In September 1998, the Plaintiffs took the next step in obtaining authority to proceed with the renovation project by applying, through their contractor, to DMD for and receiving Building and Improvement Location Permits. Included as a part of the application was the Certificate of Appropriateness and a set of plans. However, the plans submitted to DMD were different than the plans previously submitted to the MSPC — way different. For example, the plans submitted to the DMD provided for a single story addition, an attached rather than detached garage with living space over the garage, a porch feature, different window styles, and no trim features around the windows, doors and wall edges. The cost of the project under the newer plans is approximately one-half the cost under the original plans ($500,000 versus $250,000).
Mr. Boczar testified that though no trim features were on the plans submitted to the DMD, the Boczars intended to have trim features.
7. The DMD's Division of Permits issued to the Boczars an Improvement Location Permit (Permit No. ILP 98-02645) and a Building Permit (Permit No. STR 98-04908) based on the plans submitted with the Boczars' application for such permits.
8. Reconstruction and remodeling work on the Boczar's house began in early September 1998. The roof was ripped off and reassembled, footers were poured for the garage and a small extension on the back of the house, some framing was done, and parts of the driveway were dug up. Some interior work was performed both in the addition and in the pre-existing structure. (Some electrical work in the pre-existing house was disconnected and work was done on several interior walls.)
9. The differences between the two plans were brought to the attention of MSPC and DMD.
10. A stop-work order, authorized by James H. Andrews, Jr., the Assistant Administrator for Permit Code Compliance of the Division of Permits of the DMD, was issued by a DMD inspector on November 13, 1998. The order allowed work to continue on the roof but provided that all work had to cease upon completion of the roof. The order further provided that it expires by order of City inspectors and work activity may resume when the new plans for the are submitted and approved by the MSPC. The Boczars' contractor had heard that a stop-work order would be issued and forewarned the Boczars before the order was issued.
A permit revocation letter is unnecessary to make a stop-work order to become effective.
11. After receiving the stop-work order, Mr. Boczar contacted Mike Graham, Washington Township Administrator. Graham did not advise Boczar of any right to appeal the stop work order. Neither Graham, the inspector, Jeff Parmalee, who had delivered the stop work order, nor anyone else advised Mr. Boczar that he had a right to be heard after receiving the stop-work order.
12. A letter ("the revocation letter") from Rhonda J. Fields, Manager of Permit Issuance in the Division of Permits of the DMD was issued to the Plaintiffs on November 23, 1998. It notes that the plans submitted to the DMD along with the Plaintiffs' application for an Improvement Location Permit by their contractor G.W. Fowler substantially differ from the plans approved by the MSPC, thus requiring the revocation of the Improvement Location Permit and the Building Permit issued for the Plaintiffs' remodeling. It states: "In order for [the DMD] to reinstate the permits, you will need to obtain approval from the [MSPC] of revised plans that conform to the work being done on your property." (Pls.' Ex. A at 1.) The DMD allowed certain work to be completed in order to secure the house from the weather, subject to change after the MSPC reviews the revised plans. (Id. at 2.) "Any and all interior work" was prohibited. (Id.) The revocation letter warned that the performance of any work not specified therein would result in additional enforcement action, including a review of the license of the Boczars' contractor Mr. Fowler by the Indianapolis Contractor's Board. (Id.) The Boczars received the original revocation letter by certified mail the day after Thanksgiving. A copy of the letter, however, had been sent by facsimile to their contractor who sent the Boczars a copy the day before Thanksgiving. No one informed the Boczars in advance of the revocation letter that their permits were to be revoked. Upon receiving the letter, they were not notified of any right to appeal the revocation.
The letter is on the letterhead of the Division of Neighborhood Services.
This was the completion of roof decking and laying of shingles, completion of dormers and soffits, the framing of windows and covering window openings with plywood or glass.
The Indiana Contractors Board is part of the DMD and has the authority to suspend or revoke contractors' licenses.
13. After receiving the revocation letter, Mr. Boczar responded by writing a letter dated November 25, 1998, to Mayor Goldsmith, advising him of the dispute and challenging the DMD's authority to revoke the permits it had issued to the Plaintiffs.
14. Mr. Boczar also contacted Lausch who advised him to go to the MSPC with the new plans for approval. Lausch did not advise him of any right to appeal the stop work order or the revocation of the permits. Boczar and Lausch had several telephone conversations.
15. Mr. Boczar then contacted Dave Kingen of the MSPC, who advised him he needed to come before the MSPC and seek an amendment to the Certificate of Appropriateness that the Boczars had received. Kingen did not advise of any appeal rights.
16. In December 1998 and January 1999, Lausch and Kingen had conversations about the Boczars' property.
17. The Boczar matter was put on the MSPC's agenda for December 1998. Mr. Boczar and his counsel made a presentation to the MSPC at the December meeting asking for an amendment to the Certificate. The MSPC decided they lacked sufficient information with which to make a decision, so the matter was continued to a special meeting of the MSPC in January 1999. The Boczars made another presentation at the January meeting. The MSPC rejected the amendment to the Certificate, citing insufficient information.
18. Following the January 1999 meeting of MSPC, Mr. Boczar again contacted Kingen seeking advice on what the Boczars should do next. Kingen advised that the Boczars should attempt to meet the MSPC's information requirements. Before the special meeting which was held on January 6, 1999, Kingen had recused himself from the MSPC's proceedings dealing with the Boczar property.
19. At the February 1999 meeting of the MSPC, it was suggested that the Boczars meet with one or more of the commissioners to go over the plans. Mr. Boczar then met with David J. Halvorsen, one of the MSPC's members. A meeting was held at the Boczar home with individuals from the City, the Boczars' contractor and others about the matter. Other meetings were held as well.
20. The Boczars' petition for an amendment to their Certificate of Appropriateness was on the agenda for and discussed during the MSPC's May 1999 meeting. MSPC denied the petition for an amended Certificate and told the Boczars that because of the difference between the two plans, they should reapply for a new Certificate of Appropriateness based on the revised plans. The original Certificate remains in effect. Robert A. Pinckley testified that, based on his understanding of the MSPA, the Boczars could seek judicial review of the May 1999 decision.
21. The roof, shingles, dormers and soffits as well as minor interior framing have been completed on the Boczars' house; otherwise no other work has been done since the stop-work order was issued.
22. Living in the house while under construction has been stressful for the Boczar family. The house was cold on the coldest days during the winter months and the unfinished state of the work has been disruptive to the Boczars.
II. Conclusions of Law
A. Preliminary Injunction Standard
"[A] preliminary injunction is an extraordinary and drastic remedy. . . ." Planned Parenthood of Wis. v. Doyle, 162 F.3d 463, 472 (7th Cir. 1998) (Manion, J., dissenting) (quotation omitted). When considering a motion for a preliminary injunction, the court must determine whether the party seeking the injunction has made a clear showing that:
(1) it has a reasonable likelihood of success on the merits of its claim; (2) no adequate remedy at law exists; (3) it will suffer irreparable harm if preliminary injunctive relief is denied; (4) the irreparable harm it will suffer without preliminary injunctive relief outweighs the irreparable harm the nonmoving party will suffer if the preliminary injunction is granted; and (5) the preliminary injunction will not harm the public interest.
Platinum Home Mortg. Corp. v. Platinum Fin. Group, Inc., 149 F.3d 722, 726 (7th Cir. 1998); see Doyle, 162 F.3d at 472 (7th Cir. 1998) (Manion, J., dissenting). The decision whether to grant or deny a motion for preliminary injunction is within the district court's discretion. See Doyle, 162 F.3d at 465.
B. Discussion
1. Likelihood of Success on the Merits
The Plaintiffs contend that they have a reasonable likelihood of success on the merits of their claim that the revocation of the building and improvement location permits was unlawful. A reasonable likelihood of success on the merits means "a `better than negligible' chance of succeeding on the merits." Meridian Mut. Ins. Co. v. Meridian Ins. Group, Inc., 128 F.3d 1111, 1114 (7th Cir. 1997); Doyle, 162 F.3d at 473 (Manion, J., dissenting) ("more than a negligible chance of success on the merits"). The Plaintiffs advance the following arguments in order to show a reasonable likelihood of success: (1) the DMD had no authority to revoke the building and improvement location permits at issue; (2) they were not afforded due process to which they were entitled in relation to the revocation of the permits; and (3) the DMD has treated similarly-situated property owners differently. As explained below, the Plaintiffs do not have a reasonable likelihood of success on the merits of their claims. Even if the court is wrong about the Plaintiffs' likelihood of success on the merits of their claims, the issuance of a preliminary injunction would be inappropriate because the Plaintiffs have not demonstrated that the other four factors favor the issuance of an injunction.
The Plaintiffs also contend that they have a reasonable likelihood of success on the merits of their claims because: the MSPC's failure to promulgate clear standards and rules renders what it has done void and invalid; and the MSPC's decisions were arbitrary and capricious. These claims, however, do not directly concern the revocation of the permits and the issuance of the stop-work order which were done by the City through the DMD. As the Plaintiffs seek an injunction only against the City through the DMD, Lausch and Fields requiring the reissuance, reinstatement and/or rescission of the revocation of the building permits and the withdrawal or rescission of the stop-work orders, these claims are not addressed at this time.
At the preliminary injunction hearing, the Plaintiffs cited to Schlehuser v. City of Seymour, 674 N.E.2d 1009 (Ind.Ct.App. 1996), as support for their preliminary injunction request. That case involved the authority of a board of zoning appeals to revoke a previously granted variance. Id. at 1014. The court concluded that such authority is not inherent in the board's statutory powers to grant and deny a variance but that the board may revoke a variance provided the "ordinance must describe the circumstances under which a variance may be revoked and the manner in which that authority shall be exercised." Id. at 1013. The court also noted that vested rights may have been acquired in reliance on the approval of a variance in which case due process safeguards were to be followed. Id. This case, of course, does not involve the authority of a board of zoning appeals to revoke a variance. Different statutes and ordinances govern the authority of the City through the DMD's Division of Permits to issue and revoke building and improvement location permits.
a. Claim that DMD Lacked Authority to Revoke the Permits
The Plaintiffs argue that the DMD lacks the authority to revoke building and improvement location permits, which the court understands to be a claim that the DMD violated state law and procedures. They contend that the Indiana Code does not provide for the revocation of permits issued for property located within the area subject to the MSPA. They also contend that Section 536-704 of the City's Revised Code, relied upon by the City, does not apply to the area subject to the MSPA. They further argue that even if Section 536-704 applied, only the administrator of the neighborhood and development services division has authority to revoke such permits. The Plaintiffs do not have a reasonable likelihood of success on this claim because the DMD through its Division of Permits has the authority to revoke building and improvement location permits issued for properties within the area subject to the MSPA.
It is not clear from either the Amended Complaint, the Plaintiffs' briefs or their arguments at the preliminary injunction hearing that this claim is asserted as a violation of a federal constitutionally protected right. Rather, it seems that this claim asserts a violation of state law. (See, e.g. Am. Compl. ¶ 19 (alleging that Fields "was without jurisdiction or the lawful exercise of authority to revoke the Permits and issue the stop-work order"); ¶ 42 (the "Defendants City, Lausch and Fields . . . were without jurisdiction or authority to commit the acts of commission and omission which it and they . . . committed in revoking the Permits and issuing the stop-work order(s)").) Another reason for analyzing this claim as the court does is that alleged violations of state law alone do not rise to the level of federal constitutional violations actionable under 42 U.S.C. § 1983. See, e.g., Archie v. City of Racine, 847 F.2d 1211, 1217 (7th Cir. 1988).
The Plaintiffs' first argument is unavailing. As the Plaintiffs assert, Indiana Code § 36-7-11.2-61(d) provides that: "[t]he issuance of or refusal to issue a permit is a final determination appealable under section 64 [IC 36-7-11.2-64] of this chapter." However, there is no support for their argument that when read strictly the statute does not provide for the revocation of a permit. The Plaintiffs have offered no authority to support their position other than the basic tenet that statutes in derogation of common law must be strictly construed. Yet, Section 36-7-11.2-61(d) does not address the matter of DMD's authority to revoke permits. It does not address the revocation of permits at all. Instead, it provides that both the issuance and refusal to issue a permit are final appealable determinations. At best, one could infer from the statute's silence with respect to permit revocation that the revocation of a permit is not a final determination appealable under Indiana Code § 36-7-11.2-64. The conclusion that the Plaintiffs ask this court to draw, namely that this particular statute's silence as to whether a permit revocation is a final appealable determination equates with a complete absence of statutory or other authority for permit revocation is untenable and unsound.
The Plaintiffs' claim that Revised Code § 536-704 applies generally to the City of Indianapolis but not to the area subject to the MSPA is likewise unsound. Their only basis for this claim is this: "If it were applicable, it would so state." (Mem. of Law in Support of Pls.' Application for Prelim. Inj. at 9.) This, however, is mere argument. The Plaintiffs have not produced any authority which stands for the proposition that Section 536-704 does not apply to property within the area subject to the MSPA. Furthermore, there is language in the Revised Code to the contrary. Section 536-122 entitled "Territorial application" provides: "This chapter shall be applicable throughout the territorial limits of the consolidated city [the Consolidated City of Indianapolis and Marion County]." (Rev. Code § 536-122 (1998)).
This brings the court to the Plaintiffs' third argument. The Plaintiffs are correct in asserting that the Administrator of the Neighborhood and Development Services Division of DMD is authorized to revoke building and improvement location permits. (See Rev. Code § 536-121 (1998) (granting the Administrator the authority to "administer and enforce the provisions of" Chapter 536, known as the "Building Standards and Procedures of the Consolidated City of Indianapolis" (Rev. Code § 536-101 (1998)); Rev. Code § 536-704 (1998) ("The administrator of the neighborhood and development services division may revoke a building permit . . . [under specified circumstances]".) The evidence presented at the preliminary injunction hearing establishes that June Dugan is and in November 1998 was the Administrator of the Division of Neighborhood Services. However, the Administrator does not possess the authority to revoke building permits to the exclusion of all others.
For purposes of the Plaintiffs' application for a preliminary injunction, the court presumes that Ms. Dugan in her capacity as Administrator of the Division of Neighborhood Services has the authority conferred by Rev. Code § 536-121 although the ordinance speaks in terms of the "Administrator of the Neighborhood and Development Services Division." When the previous Code was in effect the DMD had only three divisions: the Neighborhood and Development Services Division, the Planning Division, and the Financial Services Division. The court presumes that the Division of Neighborhood Services is the successor to the Neighborhood and Development Services Division. In any event, the Plaintiffs elicited testimony that June Dugan was the Administrator with the authority to revoke the permits.
Pursuant to the City's Revised Code, the DMD's Division of Permits has the authority to enforce land use requirements and promote responsible development through inspections and the issuance of permits. (Rev. Code § 231-306(a) (1998)). The Revised Code vests the Division of Permits with the following authority:
(2) Powers and duties which the division of buildings is authorized or required to carry out under this Code, including but not limited to powers and duties found in Chapter . . . 536 . . . of the Code;
(3) . . . issue building permits, make building inspections . . .;
(4) Enforce provisions of state law or city ordinance relating to the development, condition, maintenance or use of real estate, as required by ordinance or assigned by the mayor; and
(5) Any other powers and duties granted by statute or ordinance or delegated by the mayor.
(Rev. Code § 231-306(b)(2), (3), (4), (5) (1998)). Thus, pursuant to Rev. Code § 231-306(b)(2), the Division of Permits has the powers and duties set forth in Chapter 536 of the Revised Code. Chapter 536 includes the powers and duties to revoke building permits and to issue stop-work orders. (Rev. Code §§ 536-704(1), 536-705 (1998)). The Division of Permits, therefore, has the authority to revoke permits and issue stop-work orders.
Interestingly, the prior version of the Revised Code expressly granted the powers and duties enumerated in (2) and (3) to the Neighborhood and Development Services Division (which the court presumes is the predecessor of the Division of Neighborhood Services). (See Rev. Code § 231-101(b)(6), (7) (1995)). The Division of Permits did not exist under the prior version of the Revised Code; it was created by the Replacement for the Revised Code.
The evidence presented at the hearing establishes that Division of Permits revoked the permits issued to the Boczars and issued the stop-work order. James H. Andrews, Jr., the Assistant Administrator for Permits Code Compliance in the Division of Permits authorized and approved of the revocation of the permits. The authority to revoke permits had been delegated to Andrews by the Administrator of the Division of Permits, Tim George. Also, George was aware of the revocation of the Boczars' permits and there is no evidence that he opposed the revocation of the Boczars' permits. In addition, Eugene Lausch, the Director of the DMD authorized and approved of the revocation. As for the stop-work order, it was authorized by Assistant Administrator Andrews and issued by a DMD inspector. Thus, the DMD through its Division of Permits revoked the Boczars' permits and issued the stop-work order.
At the preliminary injunction hearing, in an effort to attack the validity of the revocation letter, the Plaintiffs presented much evidence to establish that Ms. Fields' signature stamp was used on the letter without her knowledge and approval. This matter is a red herring. First, though the revocation letter was not authorized at the time it was issued by Ms. Fields, the revocation of the permits was authorized by others in the DMD, including Eugene Lausch, the Director of the DMD and James H. Andrews, Jr., the Assistant Administrator for Permit Code Compliance, Division of Permits. In addition, Tim George, the Administrator of the Division of Permits, was aware of the revocation of the Boczars' permits. There is no evidence that he opposed or objected to the revocation of their permits. The authorization of the revocation letter by Lausch and Andrews was based on their discussions with the MSPC and fact that Boczars had submitted two different plans to the MSPC and DMD. Lausch had an active role in drafting the revocation letter with assistance from David Baker, a City employee and the Administrator of the Division of Historic Preservation of the DMD and an architect, and Steve Neff, counsel for the City. Lausch approved of the revocation letter in its entirety. In addition, during her testimony at the evidentiary hearing, Ms. Fields ratified the use of her signature stamp on the revocation letter.
Further, with a possible exception discussed below, the revocation of the permits and issuance of the stop-work order were in compliance with the Revised Code. Under Chapter 536 a building permit may be revoked under certain specified conditions, including when: "The application, plans or supporting documents contain a false statement or misrepresentation as to a material fact. . . ." (Rev. Code § 536-704(1) (1998)). This condition is easily satisfied in the instant case.
It is undisputed that the set of plans included with their permits application was different than the set of plans submitted to and approved by the MSPC. In fact, the former plans were very different from the latter plans. Thus, in submitting their application for the building and improvement location permits, the Boczars misrepresented that the plans submitted therewith were the same plans approved by the MSPC and upon which a Certificate of Appropriateness was issued. Moreover, Indiana state law precludes the DMD from issuing the permits for which the Boczars applied unless the permit application is accompanied by a Certificate of Appropriateness. See IND. CODE § 36-7-11.2-61(c). Consequently, this misrepresentation constituted a misrepresentation of a material fact — that the Certificate of Appropriateness accompanying the permit application covered the set of plans submitted to the DMD. Therefore, the Division of Permits' revocation of the permits issued for the Boczars was authorized by and in compliance with the applicable statutes and ordinances.
Chapter 536 also provides for the issuance of stop-work orders under certain specified circumstances. (Rev. Code § 536-705 (1998)). These include that (1) construction is proceeding in violation of the building standards and procedures and (2) construction for which a building permit is required is proceeding without a building permit being in force. (Rev. Code § 536-705(2), (4) (1998)). For these purposes, "building standards and procedures" are defined as "the regulations, standards or requirements relative to . . . construction activity . . . established by or under federal law, state law, or city ordinances." (Rev. Code § 536-111(b) (1998)). The construction activity at the Boczars property violated subsection (2) and, once the necessary permits were revoked, continued construction would violate subsection (4).
As to subsection (2), the construction violated the regulations, standards or requirements established by state law. As discussed supra, the construction was in violation of Indiana Code § 36-7-11.2-61(c), which requires the grant of a Certificate of Appropriateness by the MSPC as a prerequisite for the issuance of a permit. As the evidence establishes, the MSPC has not granted a Certificate of Appropriateness for the plans on which the construction activity at the Boczar property are based. In addition, once the Division of Permits revoked the necessary permits in late November 1998, any further construction activity on the Boczar property would violate subsection (4) because the building permits were no longer in force and effect. Though this subsection did not come into play when the stop-work order was first issued on November 13, 1998, as of the date of the revocation of the necessary permits — on or about November 23, 1998 — and continuing until such time as the permit revocations are rescinded, any construction activity on the Boczar property violates subsection (4). Thus, with the possible exception addressed below, the issuance of the stop-work order was authorized by and in compliance with the applicable statutes and ordinances.
The court notes, however, a potential problem with the breadth of the stop-work order. The order prohibits "any and all interior work" on the Boczar property. This comprehensive prohibition includes any interior work in the pre-existing residential structure as well as any interior work within the addition itself. Though the fact that all interior work has been stopped was raised at the preliminary injunction hearing through the testimony of Mr. Boczar, none of the parties have directly addressed: (1) whether a Certificate of Appropriateness was required for interior work within the pre-existing residential structure; (2) whether the building and improvement location permits issued to the Boczars were required for interior work within the pre-existing residential structure and/or encompassed such interior work; and (3) whether the Division of Permits exceeded its authority in issuing a stop-work order encompassing interior work within the pre-existing residential structure as distinct the new exterior construction. It is possible that the Division of Permits lacked the authority to direct a stop-work order toward the interior work being performed within the pre-existing residential structure. On the other hand, it is possible that the interior work within the pre-existing structure and the addition are so intertwined that the building and improvement location permits were required for both types of work. Because this matter has not been briefed by the parties and the court lacks sufficient information, the court does not endeavor to decide at this time whether the stop-work order was overly broad in prohibiting any and all interior work. Instead, the court invites briefing on this matter.
The Plaintiffs shall have fifteen (15) days from this date within which to serve and file their brief and supporting materials, if any, addressing this matter. The Defendants shall have ten (10) days thereafter within which to respond, and the Plaintiffs shall have seven (7) days thereafter within which to reply. If, however, the matter of interior work within the pre-existing Boczar residential structure is not at issue, the parties are directed to so advise the court within fifteen (15) days.
b. Procedural Due Process Claim
The protections of procedural due process extend only to the deprivations of liberty and property interests encompassed by the Fourteenth Amendment. See Board of Regents of State Colleges v. Roth, 408 U.S. 564, 569-70 (1972). "[T]he range of interests protected by procedural due process is not infinite." Id. To establish a procedural due process claim, a plaintiff must identify a property interest of which he or she was deprived. See Crenshaw v. Baynerd, ___ F.3d ___, No. 98-3156, 1999 WL 384174, at *3 (7th Cir. June 14, 1999) (citing Roth, 408 U.S. at 577, and Kentucky Dep't of Corr. v. Thompson, 490 U.S. 454, 459-60 (1989)); Matter of Estate of Wilson, 610 N.E.2d 851, 856 (Ind.Ct.App. 1993), trans. denied. Further, the plaintiff must show a "legitimate claim of entitlement" to the claimed property interest. See Roth, 408 U.S. at 577; see also Thornton v. Barnes, 890 F.2d 1380, 1386 (7th Cir. 1989) (property interest in employment context); Shook Heavy Envtl. Constr. Group, A Div. of Shook, Inc. v. City of Kokomo, 632 N.E.2d 355, 361 (Ind. 1994) (stating that "[t]o have a property interest in a benefit, a person must have a legitimate claim of entitlement to it, derived from statute, legal rule or mutually explicit understanding."). State law determines whether a plaintiff has a legitimate claim of entitlement to a property interest. See Roth, 408 U.S. at 577; Matter of Wilson, 610 N.E.2d at 857.
The Plaintiffs claim a property interest in the building and improvement location permits at issue. However, they cite no authority — neither statutory nor case law — to support their claim that the permits at issue are property interests, nor can the court find any such authority. Moreover, the Plaintiffs cite no authority to establish that they have a legitimate claim of entitlement to the permits — permits obtained under false and fraudulent pretenses. Thus, the Plaintiffs have failed to identify a property interest to which the Fourteenth Amendment's due process protections extend. Given this failure, the Plaintiffs likelihood of success on the merits of their procedural due process claim is nil.
c. Equal Protection Claim
The Plaintiffs also advance an equal protection type claim. They assert that the DMD and MSPC have treated similarly situated property owners differently. The only evidence offered to support this claim was through the testimony of Edwin W. Free, III, the owner of the property located at 4810 North Meridian Street, Indianapolis, Indiana. In November 1998, Mr. Free submitted an application for a Certificate of Appropriateness to the MSPC, seeking to convert a two-car garage to a three-car garage. The plans he submitted to the City in support of his application for building permits were different than those he submitted to the MSPC. The permits were granted and construction of the garage was undertaken. When the City became aware of the difference between the two plans, Dave Kingen contacted Free and advised him to file for a modification of the Certificate of Appropriateness with the MSPC and DMD. The modification was granted, thus ratifying work that already had been completed. No stop-work orders were issued and the building permits were not revoked.
Free's situation is quite different from that of the Boczars, however. First, the evidence established that the construction of the Free's garage had been completed. Thus, the issuance of a stop-work order and the revocation of the building permit would have been ineffectual. More importantly, the evidence is that the modifications between Mr. Free's two plans were small and that the basic plan remained the same. In contrast, the differences between the two Boczar plans is quite significant. Further, Mr. Free was advised to seek a modification of his Certificate of Appropriateness, which he did. The evidence establishes that the Boczars also were advised to seek an amendment to their Certificate of Appropriateness. Because Mr. Free's situation is strikingly different from the Boczars', the Plaintiffs have failed to show a reasonable likelihood of success on their equal protection claim.
2. Legal Remedy
The Plaintiffs contend that they have no adequate remedy at law. They argue that their rights to quiet enjoyment and peaceful use of their home and the benefits from familial relationships and activities are at stake. In particular, they argue that they have lost "events which are history, e.g. Christmas, Thanksgiving, etc.," (Mem. in Support of Pls.' Application for Prelim. Inj. at 11), have had to live under unfavorable conditions while their house is "torn up", and that this has affected Mr. Boczar's health. In addition, they argue that if an injunction is not issued they will lose the summer and fall 1999 constructions seasons. In support of their argument that they have no adequate legal remedy for these alleged harms, the Plaintiffs cite to Crane v. IHSAA, 975 F.2d 1315, 1326 (7th Cir. 1992). Crane, however, is of no benefit to them.
The plaintiff in Crane was a high school student who sought an injunction against the declaration that he was ineligible to play high school athletics after he transferred school districts following a move. Crane, 975 F.2d at 1317. He presented the testimony of a golf pro that a state golf tournament is a unique experience important to the competitive development of a young golfer. A psychologist testified that participation in competitive high school athletics had emotional and psychological benefits that could not easily be quantified. Id. at 1326. The court concluded, based on this evidence, that the student demonstrated his inability to participate in the state golf tournament was an injury for which there was no adequate legal remedy. Id. Unlike the plaintiff in Crane, the Boczars have presented no evidence that their claimed harms cannot be adequately compensated by money damages. They merely presented Mr. Boczar's testimony that the Plaintiffs have suffered these alleged harms in the past or will suffer them in the future.
As to any alleged harm that the Plaintiffs suffered in the past, these are irrelevant to the inquiry whether there is no adequate legal remedy. Clearly, the issuance of an injunction cannot avert any past harms. The only remedy available for past harms, if any, is money damages. As to the claim that the Plaintiffs have been "forced to `camp-out'" in their home, it is noted that the stop-work order advised them that they could take steps required to secure their house from the weather, and the evidence presented at the hearing established that they have done so. The Plaintiffs have not demonstrated that they will suffer any injury that cannot be adequately compensated by money damages; thus, they have not shown that they have no adequate remedy at law.
3. Harm to Plaintiffs if Preliminary Injunction is Not Issued
The Plaintiffs contend that they have suffered and will continue to suffer irreparable harm if a preliminary injunction is not issued. They claim to have suffered financial losses as a result of the work stoppage. However, financial losses clearly are compensable with money damages. They argue that the fact construction has been stopped since November 1998 establishes harm. But "harm" alone is insufficient; they Plaintiffs must demonstrate "irreparable harm." The Plaintiffs claim: "That the trial herein set in September 1999, approaching a year since the harm began, cannot be conducted before the harm befalls the Plaintiff[s] constitutes irreparable harm." (Mem. of Law in Support of Pls.' Application for Prelim. Inj. at 11.) They do not, however, offer any authority which stands for the proposition that the mere fact that a harm has occurred renders the harm irreparable. Such a proposition would be absurd. If true, then any and every harm which befalls a plaintiff would constitute irreparable harm. The Plaintiffs also contend that money will not be an adequate remedy, which constitutes irreparable harm. But, as discussed, the Plaintiffs have not demonstrated, as is their burden, that money will not be an adequate remedy for their claimed harms.
The Plaintiffs further contend that the denial of their due process rights, free exercise and privacy rights constitute irreparable harm. The loss of freedoms protected under the First Amendment constitutes an irreparable injury for which money damages are inadequate. See Brownsburg Area Patrons Effecting Change v. Baldwin, 137 F.3d 503, 507 (7th Cir. 1998); Grossbaum v. Indianapolis-Marion County Bldg. Auth., 100 F.3d 1287, 1289 (7th Cir. 1996). The Plaintiffs, however, have not explained or demonstrated how they suffered a loss of their free exercise rights. Nor, as discussed above, have they demonstrated that they were denied due process. So, too, with the claimed loss of privacy. Furthermore, courts have concluded that a party cannot establish irreparable harm if the harm complained of is self-inflicted. See Caplan v. Fellheimer Eichen Braverman Kaskey, 68 F.3d 828, 839 (3d Cir. 1995); San Francisco Real Estate v. Real Estate Invest. Trust of Am., 692 F.2d 814, 818 (1st Cir. 1982); Fiba Leasing Co. v. Airdyne Indus., Inc., 826 F. Supp. 38, 39 (D.Mass. 1993); see also 11A CHARLES A. WRIGHT, ET AL., FEDERAL PRACTICE PROCEDURE § 2948.1 pp. 152-53 (1995). The revocation of the permits and issuance of the stop-work order are largely of the Plaintiffs' own creation and could have been avoided if only they had submitted the same rather than different plans to the MSPC and the DMD.
Moreover, the stop-work order was issued and the permits were revoked in November 1998. The Plaintiffs, however, waited until February 1999 to commence this action and waited until May 1999 before seeking a preliminary injunction. The Plaintiffs' own inaction or delayed action in seeking a preliminary injunction repudiates their claims of irreparable injury. See, e.g., Tough Traveler, Ltd. v. Outbound Prods., 60 F.3d 964, 968 (2d Cir. 1995) (holding that delay in commencing action and seeking preliminary injunction negated presumption of irreparable harm; plaintiff waited 4 months after commencing action before moving for preliminary injunction); Poe v. Michael Todd Co., 151 F. Supp. 801, 803 (D.C.N.Y. 1957) (delay of 3 months in seeking injunction militated against granting injunction).
4. Balancing of the Harms
The Plaintiffs contend that the Defendants will suffer no irreparable harm if a preliminary injunction is granted in the Plaintiffs' favor. However, even assuming that the Defendants would suffer no irreparable harm if an injunction were issued, the Plaintiffs have not demonstrated that they would suffer irreparable harm if an injunction is not issued. Thus, the irreparable harm to the Plaintiffs does not outweigh the irreparable harm to the Defendants, and this factor does not weigh in favor of the issuance of an injunction.
5. The Public Interest
The Plaintiffs contend that the issuance of a preliminary injunction is in the public's interest because the injunction would compel "the government to act as it is required to do. . . ." (Mem. of Law In Support of Pls.' Application for Prelim. Inj. at 13.) This contention is unpersuasive: The Plaintiffs have not demonstrated that the City or the DMD has exceeded its authority in revoking the permits and issuing the stop-work order. Furthermore, as the Defendants contend, the Indiana legislature has recognized a public interest in preserving Meridian street property from improper change. The MSPA provides in pertinent part:
(a) The purpose of this chapter is to preserve: (1) From deterioration; (2) From improperly conceived or implemented change; and (3) For the continued . . . enjoyment, and general welfare of the citizens of Indiana;
. . . a historic, scenic, esthetically pleasing, and unique part of a street lying within Indianapolis constituting the backbone of a unique residential area.
(b) The general assembly intends, by passage of this chapter, to . . . limit and restrict . . . unaesthetic, or other use of unique areas that would be inconsistent with their character as tourist attractions and with the general welfare of the public.
IND. CODE § 36-7-11.2-1. Thus, by enacting the MSPA, the Indiana General Assembly expressed the public's interest in preserving the area subject to the MSPA.
6. Unclean Hands
Lastly, the Plaintiffs have ignored the equitable doctrine of unclean hands: "[A] party coming before a court in equity must come with clean hands." Anweiler v. American Elec. Power Serv. Corp., 3 F.3d 986, 993 (7th Cir. 1993). This equitable doctrine applies to preliminary injunctions. See, e.g., Original Great Am. Chocolate Chip Cookie Co. v. River Valley Cookies, Ltd., 970 F.2d 273, 281 (7th Cir. 1992). As the Seventh Circuit explained:
Today, `unclean hands' really just means that in equity as in law the plaintiff's fault, like the defendant's, is relevant to the question of what if any remedy the plaintiff is entitled to. An obviously sensible application of this principle is to withhold an equitable remedy that would encourage or reward (and thereby encourage) illegal activity. . . .
Polk Bros., Inc. v. Forest City Enter., Inc., 776 F.2d 185, 193 (7th Cir. 1985) (quotation omitted). In other words, a party seeking equitable relief should not be allowed to take advantage of his or her own wrong. See, e.g., Guy v. T.S. Schuldt, 138 N.E.2d 891, 894 (Ind. 1956) (stating that "one who practices deceit or fraud, and conceals material facts and thereby prevents the discovery of the wrong, should not be permitted to take advantage of his own deceit or concealment").
The Plaintiffs knowingly and intentionally submitted two very different sets of plans to the MSPC and to the DMD, thus at a minimum, misrepresenting a material fact and giving the DMD the false impression that the plans for which they sought the permits were the same plans approved by the MSPC. Even the Plaintiffs do not dispute that the plans were different. Nor do they dispute that they knew the plans were different. The building permit and improvement location permit were issued to the Plaintiffs based on their misrepresentation that the plans they submitted in support of their application for the permits were the plans approved by the MSPC. Thus, the Plaintiffs have created, or at least contributed to, the situation upon which they base their request for a preliminary injunction. In proceeding with the construction and renovation project based on the set of plans submitted to the DMD but not approved by the MSPC, the Plaintiffs acted at their own peril.
The granting of an injunction would reward them for their wrongful conduct in switching the two sets of plans and could encourage others to take similar action. Further, it would severely undermine the MSPC's authority to grant certificates of appropriateness. In order to deter such wrongful conduct, the Plaintiffs' application for preliminary injunction should be denied.
III. Conclusion
To be entitled to a preliminary injunction the a party must clearly demonstrate that it has a reasonable likelihood of success on the merits of its claims, it has no adequate legal remedy, it will suffer irreparable harm if preliminary injunctive relief is denied, the balancing of harms is in its favor, and an injunction will not harm the public interest. These have not been clearly demonstrated by the Plaintiffs. In addition, the Plaintiffs seek an equitable remedy in a preliminary injunction, but they do so with unclean hands. For all these reasons, the court concludes that the Plaintiffs' application for preliminary injunction should be, and hereby is, DENIED.
The Plaintiffs shall have fifteen (15) days from this date within which to serve and file their brief and supporting materials, if any, addressing the matter of the interior work stoppage within the pre-existing residential structure. The Defendants shall have ten (10) days thereafter within which to respond, and the Plaintiffs shall have seven (7) days thereafter within which to reply. If, however, the matter of interior work within the pre-existing structure is not at issue, the parties are directed to so advise the court within fifteen (15) days.