Opinion
24A-PL-337
08-19-2024
Limited Developments, LLC, et al., Appellant v. Town of New Palestine, Appellee
ATTORNEYS FOR APPELLANT Paul D. Vink Seema R. Shah Alex C. Intermill Bose McKinney &Evans LLP Indianapolis, Indiana ATTORNEYS FOR APPELLEE Adam R. Doerr Ted W. Nolting Kroger, Gardis &Regas, LLP Indianapolis, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Hancock County Circuit Court The Honorable Scott R. Sirk, Judge Trial Court Cause No. 30C01-2111-PL-1570
ATTORNEYS FOR APPELLANT Paul D. Vink Seema R. Shah Alex C. Intermill Bose McKinney &Evans LLP Indianapolis, Indiana
ATTORNEYS FOR APPELLEE Adam R. Doerr Ted W. Nolting Kroger, Gardis &Regas, LLP Indianapolis, Indiana
MEMORANDUM DECISION
Bailey, Judge.
Case Summary
[¶1] Limited Developments LLC, Credo Investments LLC, LJ Trust Investments LLC, and Dr. Trevor Lloyd-Jones (collectively, "Lloyd-Jones") appeal the trial court's grant of a motion for partial summary judgment on the issue of liability filed by the Town of New Palestine (the "Town") and the trial court's grant of the Town's motion for summary judgment on the issue of damages. Lloyd-Jones raises several issues for our review, but we find the following issue to be dispositive: whether the trial court erred when it determined that Lloyd-Jones had violated certain Town ordinances and granted the Town's motion for partial summary judgment on the issue of liability. We reverse and remand.
Facts and Procedural History
[¶2] Dr. Trevor Lloyd-Jones ("Trevor") is the sole agent of several business entities: Limited Developments LLC, Credo Investments LLC, and LJ Trust Investments LLC. Limited Developments LLC owned a vacant parcel of land in the Town ("Parcel 1"), and Credo Investments LLC owned a vacant parcel of land that was partially contiguous to Parcel 1 ("Parcel 2").
[¶3] On June 15, 2021, a large mound of dirt was deposited onto Parcel 1. Jim Robinson, the Town Manager, learned of the addition of dirt to Parcel 1 and contacted Trevor to explain that the dirt mound violated the Town's ordinances. Trevor did not take any action to remove the dirt. Accordingly, on July 8, Robinson sent a letter to Trevor that provided, in relevant part:
While the record does not disclose the amount of dirt that was deposited, pictures taken of the parcel show the large size and depict that both dump trucks and a bulldozer were used for the project. See Appellant's App. Vol. 2 at 217-25.
This letter is to serve as formal notice that [Parcel 1] is in violation of the Town of New Palestine Zoning Ordinance, Title 9, Chapter 93, Section 93.01, Design Standards and Specifications Manual (adopted 09-01-2001). Specifically, your Property has violated Design Standard 2.07, Soil Survey, Erosion and Sediment Control[], which provides as follows, in part
B. Plan for Minimizing Erosion and Sedimentation.
1. No changes shall be made in the contour of the land; or grading, excavating, removal or destruction of the top soil, trees or other vegetative cover of the land shall be commenced until such time that a plan for minimizing erosion and sedimentation has been reviewed by the Zoning Administrator...
C. Measures to Minimize Erosion and Sedimentation.
The following measures are effective in minimizing erosion and sedimentation and shall be included where applicable in the control plan.
1. Stripping of vegetation, regrading, or other development shall be done in such a way that will minimize erosion.
2. Development plans shall preserve salient natural features, keep cut-fill operations to a minimum, and ensure conformity with topography so as to create the least erosion potential and adequately handle the volume and velocity of surface water runoff.Appellant's App. Vol. 2 at 54. The letter also directed Trevor to "review Section 4.01 of the Zoning Ordinance, Development Plan Review, for information regarding the process for obtaining a permit." Id. at 55. The letter alerted Trevor that failure to remedy the violation would subject him to fines for every day that he remained noncompliant. The letter additionally contained the URL for the full text of Section 93.01 of the Zoning Ordinance, which is the Design Standards and Specifications Manual ("Section 93.01" or the "Design Manual"), in a footnote.
[¶4] Trevor continued his inaction regarding the dirt. Robinson sent Trevor three subsequent letters dated July 30, August 26, and October 6. All of the subsequent letters cited Design Standard 2.07 of the Design Manual, and they contained an update to the total amount of fines levied against Lloyd-Jones. Unlike the first letter, the subsequent letters did not reference Section 4.01. As of October 6, Lloyd-Jones had incurred $23,850 in fines.
[¶5] On October 8, Lloyd-Jones filed an Application for a Building Permit or Improvement Location Permit. In that application, Lloyd-Jones stated that it intended to "bring in fill" and "use dirt as fill." Id. at 134. Lloyd-Jones also submitted a development plan in which it stated that a "significant portion" of the property was in a floodplain and that the "proposal is to create marketable real estate above the Base Flood Elevation by filling portions of the flood fringe area[.]" Id. at 141.
[¶6] In a letter signed by Robinson, the Town's planning commission denied the Application on November 1. In his letter, Robinson wrote:
I have previously stated Development plans shall preserve salient natural features, keep cut-fill operations to a minimum, and ensure conformity with topography. No further plans were given to the duration or intention of stockpiling of dirt. This creates a nuisance as well cut and fill slopes do not meet the 2:1 ratio slope to maintain.Id. at 142. Also on November 1, the Town filed a complaint for injunction and civil penalties against Lloyd-Jones. In that complaint, the Town alleged that Lloyd-Jones was in violation of Design Standard 2.07 of the Design Manual.
[¶7] On January 31, 2022, the Town filed a motion for a preliminary injunction and again cited Design Standard 2.07 and alleged that Lloyd-Jones was required to submit a development plan prior to depositing dirt because the dirt had "changed the 'contour of the land.'" Id. at 68. The Town requested that the court order Lloyd-Jones to remove the dirt and bring Parcel 1 into compliance with the zoning ordinance.
[¶8] At some point thereafter, Lloyd-Jones moved the dirt from Parcel 1 to Parcel 2. On March 4, Robinson sent another letter to Trevor informing him that "moving the dirt failed to 'remedy' the violation" because he had "not submitted any development plans to the Town" regarding Parcel 2. Id. at 92. The Town then amended its complaint to add Credo Investments, the owner of Parcel 2, as a defendant. In its amended complaint, the Town cited Design Standard 2.07 and alleged that Lloyd-Jones was "in violation of Section 93.01[.]" Id. at 79.
Thereafter, the Town amended its complaint a second time to add LJ Trust Investments as a defendant after ownership of Parcel 1 was transferred from Limited Developments LLC to LJ Trust Investments. The complaint continued to allege only that Lloyd-Jones had violated the Design Manual. See Appellant's App. Vol. 2 at 104-08.
[¶9] In its answer, Lloyd-Jones asserted that the Design Manual applies only to subdivisions and that, because neither Parcel 1 nor Parcel 2 had been subdivided, the Design Manual did not apply. On May 2, Lloyd-Jones submitted a second Application for a Building Permit or Improvement Location Permit. In that application, Lloyd-Jones stated that its proposed use was to "develop land." Appellant's App. Vol. 3 at 192. The Town approved the application on July 8, and fines stopped accruing as of that date.
[¶10] On February 7, 2023, Lloyd-Jones filed a motion for summary judgment and asserted that "Section 93.01, by its plain language, only applies to property that is being subdivided. Because [Lloyd-Jones was] not subdividing the Property, Section 93.01 simply does not apply to the piling of dirt on the Property and there has been no violation." Appellant's App. Vol. 2 at 160. In support of its motion, Lloyd-Jones designated as evidence the Town's Zoning Ordinances, the Subdivision Control Plan, and the Design Manual.
[¶11] Also on February 7, the Town filed a motion for partial summary judgment as to liability. In its motion, the Town contended that Lloyd-Jones had violated the Town's ordinances when it "deposited a large mound of dirt on property . . . without receiving approval of necessary plans and permits from the Town." Id. at 171. The Town alleged that Lloyd-Jones had "changed the 'use' of their property from vacant land to storing dirt," and, as such, Lloyd-Jones was required by Zoning Ordinance Sections 7.01 and 7.02 "to submit an application for an Improvement Location Permit and a Development Plan" and to "include an erosion control plan" pursuant to Design Standard 2.07. Id. at 180. The Town further alleged that Design Standard 2.07 applies to "all parcels under the Town's jurisdictions," not only property that has been subdivided. Id. at 182 (emphasis in original).
[¶12] Lloyd-Jones filed a response in opposition to the Town's motion for summary judgment. Lloyd-Jones argued that neither the Town's notice letters nor the original or amended complaints stated that Lloyd-Jones "must obtain an improvement location permit ('ILP') nor did they cite to, reference, or mention section 7.01 or 7.02 of the Town's Zoning Ordinance." Id. at 236. Rather, he contended that "for the first time," the Town raised Sections 7.01 and 7.02 as the basis for the violation in its motion for summary judgment and that this action violated the "[f]undamental principles of due process." Id. at 237 (emphasis in original). Lloyd-Jones also asserted that, even if the Town had properly raised Sections 7.01 and 7.02, Lloyd-Jones did not need to comply with those sections because it did not change the use of its land from a vacant lot when it placed dirt on it.
[¶13] After a hearing at which the parties presented oral argument, the court entered findings of fact and conclusions thereon denying Lloyd-Jones' motion for summary judgment and granting the Town's motion for partial summary judgment. In particular, the court concluded that Design Standard 2.07 "clearly indicates that it applies to all parcels of property with its cross-citations to the Improvement Location Permit and Development Plan Ordinances" such that Parcels 1 and 2 were subject to that standard. Id. at 28. The court then concluded that Lloyd-Jones had failed to comply with Design Standard 2.07 when it "created a large mound of dirt" on the properties and changed "'the contour of the land' without obtaining approval of an erosion control plan from the Zoning Administrator. Id. at 29. The court also concluded that Lloyd-Jones was in violation of Sections 7.01 and 7.02 when it deposited dirt without a permit because Lloyd-Jones had changed the use of its property. And the court concluded that, "contrary to [Lloyd-Jones'] allegations, the Town's violation notices did put [Lloyd-Jones] on notice of the documents [Lloyd-Jones] needed to submit to the Zoning Administrator to cut off the accrual of fines" such that the Town did not violate any of Lloyd-Jones' due process rights. Id. at 31 (emphasis in original). Thereafter, the Town filed a motion for summary judgment on damages, which the trial court granted. This appeal ensued. Discussion and Decision
[¶14] Lloyd-Jones contends that the trial court erred when it granted the Town's motion for partial summary judgment as to liability. The Indiana Supreme Court has explained that
[w]e review summary judgment de novo, applying the same standard as the trial court: "Drawing all reasonable inferences in favor of . . . the non-moving parties, summary judgment is appropriate 'if the designated evidentiary matter shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.'" Williams v. Tharp, 914 N.E.2d 756, 761 (Ind. 2009) (quoting T.R. 56(C)). "A fact is 'material' if its resolution would affect the outcome of the case, and an issue is 'genuine' if a trier of fact is required to resolve the parties' differing accounts of the truth, or if the undisputed material facts support conflicting reasonable inferences." Id. (internal citations omitted).
The initial burden is on the summary-judgment movant to "demonstrate [ ] the absence of any genuine issue of fact as to a determinative issue," at which point the burden shifts to the nonmovant to "come forward with contrary evidence" showing an issue for the trier of fact. Id. at 761-62 (internal quotation marks and substitution omitted). And "[a]lthough the non-moving party has the burden on appeal of persuading us that the grant of summary judgment was erroneous, we carefully assess the trial court's decision to ensure that he was not improperly denied his day in court." McSwane v. Bloomington Hosp. &Healthcare Sys.,
916 N.E.2d 906, 909-10 (Ind. 2009) (internal quotation marks omitted).Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014) (omission and some alterations original to Hughley). "'The fact that the parties have filed crossmotions for summary judgment does not alter our standard for review, as we consider each motion separately to determine whether the moving party is entitled to judgment as a matter of law.'" SCI Propane, LLC v. Frederick, 39 N.E.3d 675, 677 (Ind. 2015) (quoting Reed v. Reid, 980 N.E.2d 277, 285 (Ind. 2012)).
[¶15] Here, the trial court entered findings of fact and conclusions thereon in its summary judgment order. While such findings and conclusions are not required in a summary judgment and do not alter our standard of review, they are helpful on appeal for us to understand the reasoning of the trial court. See Knighten v. E. Chicago Hous. Auth., 45 N.E.3d 788, 791 (Ind. 2015).
[¶16] The parties do not dispute the underlying facts; both parties agree that Lloyd-Jones placed a large amount of dirt on its property without having first obtained a permit from the Town. However, the parties dispute whether Lloyd-Jones' actions constitute a violation of the Town's ordinances. Thus, this appeal requires us to interpret the zoning ordinances. This court has previously stated:
[T]he interpretation of a zoning ordinance is a question of law. Ordinary rules of statutory construction apply in interpreting the language of a zoning ordinance. That is, an ordinance is to be interpreted as a whole, and we will give words their plain, ordinary, and usual meaning. Because zoning ordinances limit
the free use of property, they are in derogation of the common law and must be strictly construed. To be sure, our courts interpret an ordinance to favor the free use of land and will not extend restrictions by implication. Hence, when a zoning ordinance is ambiguous, it should be construed in favor of the property owner.... Every word in an ordinance must be given effect and meaning, and no part is to be held meaningless if it can be reconciled with the rest of the statute.Cracker Barrel Old Country Store, Inc. v. Town of Plainfield, 848 N.E.2d 285, 290 (Ind.Ct.App. 2006) (internal citations omitted).
[¶17] Here, in entering summary judgment in favor of the Town, the trial court concluded that Design Standard 2.07 applies to all parcels and that Lloyd-Jones failed to comply with that Standard. In addition, the court concluded that Lloyd-Jones violated Sections 7.01 and 7.02 of the Zoning Ordinance when it did not obtain an Improvement Location Permit prior to adding dirt to the properties. We address each ordinance in turn.
Design Standard 2.07
[¶18] Lloyd-Jones first contends that the trial court erred when it concluded that Design Standard 2.07 applies to Parcels 1 and 2. Specifically, Lloyd-Jones asserts that the Design Standard "applies only to subdivisions" such that "only subdivisions can violate" that standard. Appellant's Br. at 31. We must agree.
The Design Standards can be found in Section 2 of the Appendix to the Town's Zoning Ordinance, Title 9, Chapter 93, Section 93.01, which is the Design Standards and Specifications Manual. For ease of reference, we will refer to the Design Standards as "Design Standard ". The Town's ordinances can be accessed here: https://codelibrary.amlegal.com/codes/newpalestine/latest/newpalestine_in/0-0-0-1.
[¶19] Design Standard 2.07 deals with soil survey, erosion, and sediment control. In relevant part, Design Standard 2.07 provides: "Before an Improvement Location Permit or a Certificate of Occupancy shall be issued, the Zoning Administrator shall be satisfied that the proposed use meets the applicable criteria set forth herein for the lot or tract of land..." The standard then provides that no changes shall be made to the contour of the land until a plan for minimizing erosion and sedimentation has been reviewed by the Zoning Administrator, and it outlines measures that are effective to minimize those issues. See Design Standard 2.07.
[¶20] That standard can be found in Section 2 of the Appendix to the Town's Design Manual. Section 2 of the Appendix, which is titled "Standards of Improvements," begins with the following preamble:
Before secondary approval may be granted, the plat of the subdivision shall conform to the following standards of improvement which shall be installed under the supervision of an inspector whose qualifications meet the approval of the Commissioner, and the cost of such inspection shall be borne by the subdivider.(Emphasis added).
[¶21] Design Standard 2.01, titled "Conformity Required," then provides: "All subdivisions shall conform to the standards of improvement of this manual, which shall be installed under the supervision of a zoning administrator or town inspector." Design Standard 2.01 (emphasis added). Indeed, variations of the word "subdivision or subdivide" appear forty-six times in the "Standards of Improvement" section of the Appendix.
[¶22] We acknowledge that the word "subdivision" does not specifically appear anywhere in Design Standard 2.07. However, we cannot read that standard in isolation. Rather, we are required to read the ordinance as a whole. See Cracker Barrel, 848 N.E.2d at 290. As such, we must read Design Standard 2.07 in conjunction with the preamble and Design Standard 2.01, which both only refer to subdivisions. As a result, we must conclude that the Design Manual, including Design Standard 2.07, applies to subdivisions and not to land that has not been subdivided.
[¶23] To support their positions, the court below and the Town on appeal both rely on the fact that Design Standard 2.07 references an Improvement Location Permit, which is governed by Sections 7.01 and 7.02 of the Appendix to Title 9, Chapter 90, Section 90.45 of the Town's Zoning Ordinance. And there is no dispute that Sections 7.01 and 7.02 apply to all properties within the Town. See Section 7.01. The court and the Town also relied on the fact that Section 7.01(b)(14) provides that an application for an improvement location permit shall not be approved until the Zoning Administrator determines that the "proposed use meets the applicable criteria set forth in Section 2 of the Design Standards Manual[.]" However, the fact that Design Standard 2.07 and Sections 7.01 and 7.02 cross-reference each other does not broaden the application of the Design Manual beyond subdivisions. Rather, it simply indicates that there are instances in which the owner of a subdivided property will need to apply for that permit. Further, even if the cross-references create any ambiguity as to the applicability of Design Standard 2.07, we must construe the ordinance in favor of the property owner, which would again lead us to conclude that the Design Manual only applies to subdivisions. See Cracker Barrel, 848 N.E.2d at 290.
[¶24] In order to read the Design Manual as the Town does, we would be required to add words into the ordinance that are not there. Indeed, had the Town intended for the Design Manual to apply to all properties, it could have drafted the preamble to say that "the properties" shall conform to the Manual rather than "the plat of the subdivision." Similarly, the Town could have drafted Design Standard 2.01 to say that "all properties shall conform to the standards of improvements of this manual" rather than "all subdivisions."
[¶25] Based on the plain language, we hold that the Design Manual, including Design Standard 2.07, applies only to subdivisions. And there is no dispute that Lloyd-Jones' properties were not subdivided. As such, Design Standard 2.07 does not apply to Lloyd' Jones' property. Because that standard does not apply, the trial court erred when it concluded that Lloyd-Jones had violated it and when it entered summary judgment in favor of the Town on that ground. However, our analysis does not end there. We must next address the court's conclusion that Lloyd-Jones violated Sections 7.01 and 7.02.
Zoning Ordinance Sections 7.01 and 7.02
[¶26] Lloyd-Jones next contends that the court erred when it found that Lloyd-Jones had violated Zoning Ordinance Sections 7.01 and 7.02, which address Improvement Location Permits. Section 7.01 provides that "no structure, improvement, or use of land may be created, altered, changed, placed, erected, or located on platted or unplatted lands" unless an Improvement Location Permit has been issued. And Section 7.02 outlines the process for applying for that permit.
[¶27] There is no dispute here that Sections 7.01 and 7.02 apply to Lloyd-Jones' properties. However, Lloyd-Jones contends that the court erred when it determined that he violated those sections because Lloyd-Jones was denied its basic due process rights regarding fair notice. We agree.
[¶28] The Fourteenth Amendment prohibits any state from depriving any person of "life, liberty, or property, without due process of the law." U.S. Const. amend. XIV, § 1. "Generally stated, due process requires notice, an opportunity to be heard, and an opportunity to confront witnesses." Ind. State Bd. of Educ. v. Brownsburg Cmty. Sch. Corp., 842 N.E.2d 885, 889 (Ind.Ct.App. 2006). On appeal, Lloyd-Jones contends that it was denied proper notice because the Town did not cite violations of Sections 7.01 and 7.02 until it filed its motion for summary judgment.
[¶29] Lloyd-Jones is correct that the Town did not initially mention Section 7.01, 7.02, or an Improvement Location Permit. Rather, in the first letter the Town sent to Lloyd-Jones, the Town alleged that Lloyd-Jones had violated Design Standard 2.07, and it instructed Lloyd-Jones to review Section 4.01 of the Zoning Ordinance, which addresses development plans. Then, in all of the subsequent letters, the original complaint, and the two amended complaints, the Town only alleged that Lloyd-Jones had violated Design Standard 2.07. It was not until February 2023, nineteen months after the Town became aware of the dirt on Lloyd-Jones' property, that the Town finally asserted that Lloyd-Jones had violated Sections 7.01 and 7.02 by failing to obtain a Location Improvement Permit. However, the Town did not amend its complaint to raise the new violation; rather, it raised it for the first time in its motion for partial summary judgment.
[¶30] To support its argument that it did not receive adequate notice of that specific allegation, Lloyd-Jones relies on this Court's opinion in City of New Haven v. Chem. Waste Mgmt. of Ind., LLC, 701 N.E.2d 912 (Ind.Ct.App. 1998). In that case, the city filed for injunctive enforcement of a stop-work order, which provided: "I do hereby order stayed all operations on your original 151 acres which do not conform to the provisions of [the improvement location permit] and the restrictive covenants." Id. at 918. The trial court denied the injunction on the ground that the stop-work order was too vague and general to be enforceable. This Court affirmed, holding that "basic constitutional due process considerations about fair notice require that a stop work order . . . be reasonably specific and concrete so as to fairly apprise the wrongdoer of the specific violation." Id. at 918-19.
[¶31] The Town responds and asserts that the notices it sent to Lloyd-Jones "adequately informed" Lloyd-Jones that it "needed to submit a development plan to remedy the violation." Appellee's Br. at 44. To support its assertion, the Town relies on this Court's opinion in Enslen v. Area Plan Comm'n of Grant Cnty., 60 N.E.3d 268 (Ind.Ct.App. 2016). In that case, Enslen owned a vacant and uninhabitable home. Id. at 270. He sought several permits to bring the home back up to code but never completed the work due to financial difficulties. Id. Ultimately, the town sent a notice to Enslen that his home was in violation of several building codes. Id. When Enslen failed to perform any work, the town filed a complaint against him. Following a trial, the court entered judgment in favor of the town.
[¶32] On appeal, Enslen argued that the notice regarding the code violations was void because it did not provide specific and concrete information that would allow him to comply with the ordinances. This Court held that City of New Haven did not apply because the town was not seeking to enforce a stop-work order. The Court then determined that "the evidence presented at trial-most notably, Enslen's own testimony" established that his problem with compliance was not that he did not understand what needed to be done but that he did not have the financial means to do it." Id. at 272. The Court thus rejected Enslen's notice argument.
[¶33] Here, while neither case is directly applicable, we find the case at hand to be more similar to City of New Haven than to Enslen. Unlike in Enslen, this is not a case where the Town informed Lloyd-Jones of the proper procedure which he simply failed to follow. Indeed, at no point did the Town instruct Lloyd-Jones to obtain an Improvement Location Permit or otherwise alert Lloyd-Jones to Sections 7.01 and 7.02. Rather, the letters, the original complaint, and both amended complaints alleged a violation of Design Standard 2.07. And while Design Standard 2.07 references an Improvement Location Permit, as we discussed above, that Standard does not apply to Lloyd-Jones. Further, that Design Standard outlines what is required before an Improvement Location Permit shall be issued if one is needed. See Design Standard 2.07. Nothing about that Design Standard provides that an Improvement Location Permit is always required. The repeated references to Design Standard 2.07 did not put Lloyd-Jones on notice that he had violated Sections 7.01 and 7.02.
[¶34] Still, in the first letter the Town sent to Lloyd-Jones, it directed Lloyd-Jones to review Section 4.01 of the Zoning Ordinances. However, Section 4.01 addresses development plan reviews, and it provides that "[n]o permit or certificate" for work or change of use of any parcel shall be given "except in conformity with a development plan approved by the Zoning Administrator." Section 4.01(B). That ordinance requires a person to submit a development plan; it does not provide any information on Improvement Locations Permits, include any directions to apply for an Improvement Location permit, or otherwise reference Sections 7.01 or 7.02. And, notably, the Town never alleged that Lloyd-Jones was in violation of Section 4.01.
[¶35] The fact that Lloyd-Jones applied for, and obtained, an Improvement Location Permit is of no moment. The question is not whether Lloyd-Jones ultimately figured out what he needed to do; it is whether the Town gave him sufficient notice that he was required to obtain that permit. Between the numerous letters, the original complaint, and the amended complaints, the Town never once alleged violations of Sections 7.01 or 7.02, cited to those ordinances, or otherwise instructed Lloyd-Jones to apply for an Improvement Location Permit.
[¶36] We acknowledge that the Town repeatedly told Lloyd-Jones that the addition of dirt to his property was improper. But the Town only alleged that Lloyd-Jones was in violation of Design Standard 2.07 and Section 4.01. The Town's notices were not reasonably specific and concrete so as to fairly apprise Lloyd-Jones of the specific violation of Sections 7.01 and 7.02. See City of New Haven, 701 N.E.2d at 918-19. We therefore hold that the Town's letters and complaints did not put Lloyd-Jones on notice as to a violation of Sections 7.01 and 7.02. As such, Lloyd-Jones was denied its due process right to fair notice of that alleged violation. We therefore hold that the trial court erred when it granted summary judgment in favor of the Town on that ground.
Conclusion
[¶37] Design Standard 2.07 applies to subdivisions. Because Lloyd-Jones' properties are not subdivided, they are not subject to that design standard. Additionally, Lloyd-Jones was denied its due process right to notice regarding an alleged violation of Sections 7.01 and 7.02. Because Design Standard 2.07 does not apply and because Lloyd-Jones was denied its right to fair notice regarding Sections 7.01 and 7.02, we hold that the trial court erred when it entered summary judgment in favor of the Town. We therefore reverse the trial court's order and remand with instructions for the court to enter summary judgment in favor of Lloyd-Jones.
Because we reverse the court's order entering summary judgment in favor of the Town, we need not address Lloyd-Jones' argument regarding fines and attorney's fees.
[¶38] Reversed and remanded.
Altice, C.J., and Mathias, J., concur.