Cracker Barrel Old Country Store, Inc. v. Town of Plainfield Ex Rel. Plainfield Plan Commission

848 N.E.2d 285, 2006 Ind. App. LEXIS 924, 2006 WL 1412783
CourtIndiana Court of Appeals
DecidedMay 24, 2006
Docket32A01-0507-CV-296
StatusPublished
Cited by9 cases

This text of 848 N.E.2d 285 (Cracker Barrel Old Country Store, Inc. v. Town of Plainfield Ex Rel. Plainfield Plan Commission) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cracker Barrel Old Country Store, Inc. v. Town of Plainfield Ex Rel. Plainfield Plan Commission, 848 N.E.2d 285, 2006 Ind. App. LEXIS 924, 2006 WL 1412783 (Ind. Ct. App. 2006).

Opinion

OPINION

BAKER, Judge.

Appellant-defendant Cracker Barrel Old Country Store, Inc. (Cracker Barrel) appeals the trial court’s grant of summary judgment entered in favor of the appellee-plaintiff Town of Plainfield (Plainfield), which determined that Cracker Barrel’s pole sign must be removed from its premises. Specifically, Cracker Barrel argues that the trial court erroneously determined that its sign lost its status as a legally established nonconforming structure in accordance with Plainfield’s zoning ordinance (the Ordinance) when it had performed maintenance on the sign. Concluding that the trial court properly determined that Cracker Barrel lost its status as a nonconforming use under the Ordinance when it removed its- sign from the pole, we affirm the entry of summary judgment for Plain-field.

FACTS

In 1992, Cracker Barrel opened a restaurant and gift shop in Hendricks County near the interchange of 1-70 and State Route 267. Cracker Barrel received permission from the Hendricks County Planning and Building Department to construct a free-standing highway identification sign on its property. In the permit application, Cracker Barrel indicated that its pole sign would stand 150 feet tall, with a surface area of approximately 650 square feet, at an estimated cost of $89,000. The sign matched these specifications, and it consisted of two surfaces, a cabinet, internal lighting, and a pole.

Sometime thereafter, an annexation occurred, whereby Cracker Barrel came under Plainfield’s jurisdiction. In 1998, Plainfield enacted Ordinance No. 21-97. It was subsequently determined that Cracker Barrel’s sign violated the provisions of the Ordinance because it exceeded *288 height and surface area limitations. However, Cracker Barrel’s sign qualified as a pre-existing, legally established, non-conforming structure as defined in the Ordinance.

In 2002, when the sign’s surface needed to be replaced, Cracker Barrel’s contracting consultant contacted Plainfield’s Director of Planning, J. Higbee, about performing work on the sign. Higbee took the position that Cracker Barrel would be permitted under the Ordinance’s “safe harbor” provision to “reface” the existing surfaces without removing them from the structure. No permit was required to perform this work so long as Cracker Barrel “swapped out existing panels [i.e., the sign surfaces] with same type and size new panels.” Appellant’s App. p. 589. However, various representatives from Plainfield informed Cracker Barrel personnel that if the restaurant removed the cabinet from the sign structure, the sign would lose its pre-existing, legally established, non-conforming use status. In a fax, Cracker Barrel’s sign contractor indicated that “Mr. Higbee advises that both pylon signs at this site are there by grace of the ‘legally non-conforming use’ articles of the codes, as square footage and height exceeded current limitations. To reface these existing cabinets, without removing them from the structure, would be permissible as maintenance.” Appellant’s App. p. 199, 588.

On September 16, 2002, Cracker Barrel’s contractor began work on the sign. The work order directed that the sign cabinet was to remain atop the pole during the repairs. Specifically, Cracker Barrel’s consultant advised that the nonconforming use status goes “out the window if the cabinets are removed.” Appellant’s App. p. 198, 587. Notwithstanding these instructions, the contractor — at Cracker Barrel’s request — detached the sign cabinet from the top of the sign and temporarily lowered it to the ground, apparently for safety reasons. The contractor removed the existing sign surfaces from the frame and replaced them with new ones. Thereafter, the sign was reaffixed to the top of the pole.

On October 2, 2002, Plainfield served Cracker Barrel with notice of a zoning violation. Specifically, Plainfield informed Cracker Barrel that its temporary detachment of the sign cabinet constituted a violation of the Ordinance. As a consequence, enforcement of the ordinance would reduce the sign from a height of 150 feet to 6 feet and the square footage from 652 feet to 48 feet.

When Cracker Barrel refused to remove its sign, Plainfield initiated an action against Cracker Barrel in the trial court, alleging that the sign had lost its status as a pre-existing nonconforming use. Specifically, Plainfield alleged that “the movement of the sign structure to the ground and the removal of the sign’s surface from its frame violated the provisions of the Ordinance and resulted in the Tall Pole Sign losing its classification as a pre-exist-ing nonconforming sign.” Appellant’s App. p. 17. Hence, Plainfield requested that the trial court order Cracker Barrel to completely dismantle and remove the sign. Cracker Barrel denied the allegations and asserted a counterclaim against Plainfield, contending that Plainfield’s interpretation and enforcement of the Ordinance amounted to an unconstitutional taking of Cracker Barrel’s property.

Thereafter, Plainfield filed a motion for summary judgment, arguing that: (1) Cracker Barrel’s sign violated the Ordinance as a matter of law because of the manner in which Cracker Barrel replaced its sign surfaces; (2) the plain language of the Ordinance established Cracker Barrel’s violation; and (3) Cracker Barrel *289 could not reasonably argue that it suffered any unfair prejudice as a result of the enforcement of the Ordinance.

Cracker Barrel filed a cross-motion for summary judgment, arguing that: (1) it did not move the sign within the meaning of the Ordinance because the sign remained in exactly the same location and position where it had always been; (2) Cracker Barrel only performed routine maintenance on its sign, that is permitted under the Ordinance; (3) Plainfield has cited an incorrect legal standard for the trial court’s review and interpretation of the Ordinance; (4) the Ordinance did not prohibit Cracker Barrel’s manner of replacing the sign surfaces; and (5) the enforcement of Plainfield’s Ordinance amounted to an unconstitutional taking of its property.

Following argument on June 3, 2005, the trial court granted Plainfield’s motion for summary judgment, concluding that the work performed by Cracker Barrel constituted a “moving” within the terms of the Ordinance, which caused the sign to lose the status of a “pre-existing, legally established, nonconforming use.” Appellant’s App. p. 10. Moreover, the trial court concluded that Cracker Barrel’s replacement of the sign surfaces did not come within the definition of “maintenance” under the “safe harbor” provisions of the Ordinance, and that the enforcement of the Ordinance did not amount to a taking. Id. As a result, the trial court ordered Cracker Barrel to remove its sign from the property within sixty days of its order. 1 Cracker Barrel now appeals.

DISCUSSION AND DECISION

When reviewing the trial court’s grant of summary judgment, we apply the same standard the trial court applied. Summary judgment is appropriate if the pleadings and evidence submitted demonstrate there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law.

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Bluebook (online)
848 N.E.2d 285, 2006 Ind. App. LEXIS 924, 2006 WL 1412783, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cracker-barrel-old-country-store-inc-v-town-of-plainfield-ex-rel-indctapp-2006.