author: RILEY, Judge. FRIEDLANDER, Judge,

text:
    NEW ALBANY HISTORIC PRESERVATION COMMISSION and City of New Albany, Appellants-Defendants, v. BRADFORD REALTY, INC., Appellee-Plaintiff.
    No. 22A01-1108-PL-365.
    Court of Appeals of Indiana.
    March 22, 2012.

      New Albany Historic Preservation Commission, Rachele L. Cummins, A. David Hutson, Smith Carpenter Thompson Fon-drisi, Cummins & Lewis, LLC, Jefferson-ville, IN, City of New Albany, Shane L. Gibson, New Albany City Attorney, New Albany, IN, Attorneys for Appellant.
    John A. Kraft, Jennifer Kraft Kuchle, Young Lind Endres & Kraft, New Albany, IN, Attorneys for Appellee.
   OPINION

RILEY, Judge.

STATEMENT OF THE CASE

Appellants-Defendants, the New Albany Historic Preservation Commission and the City of New Albany (collectively, the NAHPC), appeal the trial court’s summary judgment in favor of Appellee-Plaintiff, Bradford Realty, Inc. (Bradford), concluding that Bradford had not received due process when the NAHPC designated its property to be located in a historic district.

We reverse in part and affirm in part.

ISSUES

The NAHPC presents four issues on appeal, which we consolidate and restate as the following two issues:

(1) Whether the trial court erred by declaring the City of New Albany’s ordinance designating Bradford’s property located within the historic district as an adjudicative act instead of a legislative act and therefore requiring actual notice of the potential designation pursuant to the United States Constitution’s due process provision; and
(2) Whether the trial court erred when it concluded that Bradford was not required to obtain a Certificate of Appropriateness when it replaced the property’s original siding with vinyl siding.

On Cross-Appeal, Bradford presents us with one issue, which we restate as: Whether the trial court erred when it concluded that Bradford did not have a claim for inverse condemnation.

FACTS AND PROCEDURAL HISTORY

The City of New Albany (the City) is located on the Ohio River in southern Indiana. The City’s downtown area is characterized by a collection of Federal and Greek Revival style commercial structures, built between 1814 and 1950, interspersed by residential and religious buildings. In 1999, the downtown district was included in the National Register of Historic Places.

That same year, in 1999, the City adopted a historic preservation ordinance pursuant to Ind.Code § 36-7-11 et seq. The ordinance clarified the powers and duties of the New Albany Historic Preservation Commission (HPC), instituted guidelines for the creation of historic districts, and elaborated on the procedures for modification and construction of structures within a historic district. The regulatory provisions of the ordinance require the property owner to request a Certificate of Appropriateness (COA) from the HPC prior to commencing work on most external modifications of a property located within the historic district. See New Albany Ord. § 151.06.

In 2002, the City proposed an ordinance to designate the downtown district as a historic district. On April 28, 2002, the City published a notice of public meeting on the issue of the proposed designation in the New Albany Tribune. The New Albany Tribune also ran two articles discussing the potential designation of the district in its April 25, 2002 and May 3, 2002 issue. The public meeting occurred on May 9, 2002. Neither the City nor the HPC gave actual notice of the hearing to the owners of property located within the proposed boundaries of the historic district. On July 1, 2002, the ordinance designating the historic district was adopted by the City’s Council and signed by the mayor the following day.

Bradford is the owner of property located within the historic district. The property was built in 1910 and is described in the National Register of Historic Places as

a two and a half story frame house with a limestone clad foundation (up to a two foot height) with a vermiculated finish. The roof is hipped with wide eaves and a front dormer. The walls are wood clapboard. The front porch is at left, inset, with a tapered stone pier, also of vermi-culated stone. There is a brick plinth and walls on the porch with concrete steps. The windows are one/over/one light, double hung.

(Appellant’s App. p. 186). Bradford has owned the property since 1966 and uses it as income property, generating rental income. In 2008, Bradford decided to repair the exterior of the house and began to replace the original wood clapboard siding with “vinyl siding ... of the same color and the approximate same width.” (Appellant’s App. p. 140). On February 26, 2008, the HPC sent a letter to Bradford notifying it that it needed a COA before proceeding with an exterior modification of the property. On March 18, 2008, Bradford responded indicating that since it had owned the property prior to the enactment of the historic district, it was not bound by its provisions. Despite an immediate reply from the HPC that Bradford was required to request a COA, Bradford continued replacing the clapboard with vinyl siding and completed the work on April 21, 2008. Three days later, on April 24, 2008, Bradford applied for a COA under protest and solely “as a courtesy to the [HPC].” (Appellant’s App. p. 85). After a hearing before the HPC on May 21, 2008, the application was denied as it was found that the utilization of vinyl siding was inconsistent with the HPC design guidelines.

On June 18, 2008, Bradford filed its Complaint for Declaratory Judgment against the HPC alleging a violation of its due process rights because it was not given actual notice of the enactment of the historic district and requesting that the ordinance be declared void, together with a finding that the action constituted a taking of its property. On August 31, 2009, the HPC filed its answer as well as a counterclaim in which it alleged that Bradford had violated the regulatory provisions of the ordinance. On November 18, 2009, Bradford amended its Complaint, adding the City as a party.

On November 10, 2010, the HPC and the City filed a joint motion for summary judgment, designation of evidence, and memorandum of law. On December 28, 2010, Bradford filed its reply and a cross-motion for summary judgment. On May 25, 2011, the trial court conducted a hearing on the motions and on July 26, 2011, issued its summary judgment in favor of Bradford but denied Bradford’s cross-motion for summary judgment. The trial court concluded in pertinent part:

2. The Ordinance in question in the instant case is not one that is applied uniformly to all property owners and/or citizens in the City of New Albany, but is only applicable to those within the proposed [historic [district....
3. The elementary and fundamental requirement of due process in any proceeding, which is to be accorded finality, is that notice should be reasonably calculated, under all circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present objections.
14. The court concludes that [NAHPC’s] notice to [Bradford] that (a) its property was designated to possibly be in the [historic [district, (b) concerning details and terms of the initial designation, (c) delivery of any preliminary draft, and (d) designation of boundaries, based upon the above authorities, was not in compliance with the due process requirements[.]
15. Notice by publication in the case at bar was inadequate because, under the circumstances, it was not reasonably calculated to reach those who could easily be informed by other means at hand.” A process which is a mere gesture is not due process, in a legal sense. The [NAHPC’s] failure to comply with its own published notice procedures is not constitutional due process.
16. A taking by inverse condemnation includes any substantial interference with private property which destroys or impairs one’s free use and enjoyment of the property or one’s interest in the property. An Ordinance providing for a historical district, however imperfectly utilized, under a procedure authorized by state legislation is not a “taking” sufficient to invoke an inverse condemnation claim, in this case.
19. Upon review of the photos and exhibits filed in the [s]ummary [jjudgment record, the court concludes that the installation of the vinyl siding at issue did not effect a “conspicuous change” in appearance that is negative or harmful to [district purposes, or contrary to the purposes of the Historic Preservation Commission in this state under applicable statute. A [COA] was not required from [the NAHPC] in order for [Bradford] to complete installation of the siding, given the facts and circumstances of this case.
20. To the extent the [NAHPC] assert the May 21, 2008, “denial” of [Bradford’s] request for a [COA] as a valid official action of NAHPC, that assertion was/is contrary to law. Such action was of no valid legal effect. Under the circumstances of this case and in view of noncompliance with its own Rules of Procedure the power of NAHPC to take action like that was never implicated due to the failures of notice to [Bradford] at the relevant times cited since 2002.
21. To require Bradford to remove the vinyl siding, in view of failures of notice, and noncompliance with procedures as set forth herein, would be unreasonable and an economic waste.

(Appellant’s App. pp. 14, 17-19) (internal citations omitted).

The NAHPC now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION

APPEAL

I. Summary Judgment

Summary judgment is appropriate only when there are no genuine issues of material fact and the moving party is entitled to a judgment as a matter of law. Ind. Trial Rule 56(C). In reviewing a trial court’s ruling on summary judgment, this court stands in the shoes of the trial court, applying the same standards in deciding whether to affirm or reverse summary judgment. First Farmers Bank & Trust Co. v. Whorley, 891 N.E.2d 604, 607 (Ind.Ct.App.2008), trans. denied. Thus, on appeal, we must determine whether there is a genuine issue of material fact and whether the trial court has correctly applied the law. Id. at 607-08. In doing so, we consider all of the designated evidence in the light most favorable to the non-moving party. Id. at 608. The party appealing the grant of summary judgment has the burden of persuading this court that the trial court’s ruling was improper. Id. When the defendant is the moving party, the defendant must show that the undisputed facts negate at least one element of the plaintiffs cause of action or that the defendant has a factually unchallenged affirmative defense that bars the plaintiffs’ claim. Id. Accordingly, the grant of summary judgment must be reversed if the record discloses an incorrect application of the law to the facts. Id.

We observe that in the present case, the trial court entered findings of fact and conclusions of law in support of its judgment. Special findings are not required in summary judgment proceedings and are not binding on appeal. Id. However, such findings offer this court valuable insight into the trial court’s rationale for its review and facilitate appellate review. Id.

II. Notice Requirement

The NAHPC contends that the trial court erred in granting summary judgment in favor of Bradford and in invalidating the City’s ordinance. The NAHPC claims that the City’s ordinance designating the downtown historic district was not a legislative act for the purpose of the U.S. Constitution’s Fourteenth Amendment due process provision and therefore, Bradford was not entitled to actual notice of the ordinance. In response, Bradford maintains that the disputed ordinance amounted to an adjudicative or administrative act and thus fell within the notice guidelines proposed by Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 94 L.Ed. 865 (1950). Applying Mullane, Bradford claims it was entitled to actual notice.

The Fourteenth Amendment to the United States Constitution provides that “[n]o state ... shall ... deprive any person of life, liberty, or property without due process.” In clarifying the wording of the Fourteenth Amendment, the Supreme Court has held that “[m]any controversies have raged about the cryptic and abstract words of the Due Process Clause but there can be no doubt that at a minimum they require that deprivation of life, liberty or property by adjudication be preceded by notice and opportunity for hearing appropriate to the nature of the case.” Mul-lane, 339 U.S. at 309, 70 S.Ct. 652 (emphasis added).

The line between legislation and adjudication is not always easily drawn. In LC & S, Inc. v. Warren Co. Area Pln. Comm, Judge Posner designed a workable rationale to distinguish between legislation and adjudication:

Legislative due process seems almost an oxymoron. Legislation is prospective in effect and, more important, general in its application. Its prospective character enables the persons affected by it to adjust to it in advance. Its generality offers further, and considerable, protection to an individual or organization that might be the legislature’s target by imposing costs on all others who are within the statute’s scope.... Prospectivity and generality of legislation are key elements of the concept of the rule of law, a concept that long predates either the equal protection or the concern with procedural regularity embodied in our modern concept of due process of law. The right to notice and a hearing, the essence of that concept, are substitutes for the prospectivity and generality that protect citizens from oppression by legislators and thus from the potential tyranny of electoral majorities. The generality of legislation makes notice by service or otherwise impracticable; many of the persons affected by the legislation will be unknown and unknowable.

LC & S, Inc. v. Warren Co. Area Pin. Comm., 244 F.3d 601, 603 (7th Cir.2000). See also Bi-Metallic Investment Co. v. Bd. of Equalization, 239 U.S. 441, 445, 36 S.Ct. 141, 60 L.Ed. 372 (1915); City of Eastlake v. Forest City Enterprises, Inc. 426 U.S. 668, 96 S.Ct. 2358, 49 L.Ed.2d 132 (1976); Pro-Eco, Inc. v. Bd. of Comm. of Jay Co., 57 F.3d 505, 513 (7th Cir.1995).

In LC & S, Inc., the plaintiffs obtained from the State of Indiana a liquor license for use in Williamsport, a town with a population of 1800, and leased a building in anticipation of opening a restaurant in it where liquor would be served. Id. The building was in a district zoned for commercial use and the operation of a tavern was a permitted use in that zoning district. Id. However, prior to the opening, “rumors swept Williamsport that a topless bar, or perhaps a gay bar, was coming to the town and that in fact it would be opening in the building the plaintiffs had leased.” Id. In response to the rumors, the county’s planning commission recommended that the town council amend its zoning ordinance to make “taverns” special exceptions to the uses permitted in the commercial zoning district. Id. This required the plaintiffs to apply to the planning commission’s board of zoning appeals for permission. Id. The town council amended the ordinance accordingly, but grandfathered the only existing bar in Williamsport. Id. When the plaintiffs became aware of the new procedures, they applied for a special exception which was denied. Id. They brought a federal constitutional suit, claiming that the amendment to the zoning ordinance had deprived them of property without due process of law. Id. at 603-04. The plaintiffs claimed that the amendment was adjudicative in nature because it was aimed solely at them and therefore they should have been entitled to notice of the proposed amendment and an opportunity for a hearing. Id. at 604.

The court concluded that “[n]ot the motive or stimulus, but the generality and consequences of an enactment determine whether it is really legislation or really something else.” Id. The court stated that the amendment operated prospectively, regulating a future use but not imposing a sanction for past conduct. Id. “[I]t applied to anyone who might want to open a new tavern in Williamsport, not just the plaintiffs.” Id. at 605. “Obviously the domain of this legislation is limited, but it is limited basically by the size of Williamsport. It cannot be the law that small towns cannot legislate because they are likely to know just who is the likely to be hurt by the legislation, and the who may indeed be singular.” Id. The court concluded that the amendment constituted legislation for purposes of the Fourteenth Amendment and therefore no notice or opportunity to be heard was constitutionally required. Id.

Here, the City’s ordinance enacting the downtown district as historic was prospective and general in nature. The ordinance purports to regulate only future conduct to be consistent with the provisions of the historic preservation ordinance; it does not impose fines for past behavior or requires past improvements to be modified in any way. It is generally and equally applicable to all property owners within its boundaries. Merely because the historic district does not encompass the entirety of New Albany does not diminish its general character. See id. While the application of the historic preservation ordinance is based on facts dependent on the individual property owner, the ordinance’s character itself is general in nature. Despite Bradford’s argument that it was entitled to actual notice because all property owners were known and therefore could individually be notified, the ease with which notice could be effected is not a hallmark of legislation; generality and prospectivity are.

Moreover, in Krimendahl v. Common Council of City of Noblesville, 256 Ind. 191, 267 N.E.2d 547, 551 (1971), our supreme court noted that

as a general rule, the enactment of an ordinance by a city council, the elected, legislative organ of municipal government in this State, is considered to be an exercise of the legislative power of State government, and as such is exempt from the due process requirements of a trial-type hearing.

See also City of Hobart Common Council v. Behavioral Inst, of Indiana, LLC, 785 N.E.2d 238, 246 (Ind.Ct.App.2003) (when a common council acts in a legislative capacity, it is not subject to due process requirements).

Accordingly, based on Mullane’s premise and the case law’s distinction between legislation and adjudication, we conclude that the City’s enactment of the ordinance designating its downtown as a historic district was a legislative act which did not fall within the purview of the due process requirements of the Fourteenth Amendment. As such, Bradford was not entitled to actual notice of the City’s ordinance. We reverse the trial court’s summary judgment in favor of Bradford on this ground and grant summary judgment to NAHPC.

III. Certificate of Appropriateness

Next, the NAHPC disputes the trial court’s grant of summary judgment to Bradford by concluding that Bradford was not required to obtain a COA prior to replacing the original siding on his property located within the downtown historic district because the replacement did not amount to a conspicuous change to the exterior of the house. The trial court based its conclusion on the fact that the replacement of the original wood siding with vinyl siding was “not negative or harmful to the [district’s purposes, or contrary to the purposes of [the HPC][.]” (Appellant’s App. p. 18).

The New Albany Ord. § 151.06 states in pertinent part

(A) A Certificate of Appropriateness must be issued by the Preservation Commission before a permit is issued for, or work is begun on, any of the following:
1. Within all areas of a historic district:
a.The demolition of any building or structure;
b. The moving of any building or structure;
c. A conspicuous change in the exterior appearance of any historic building or any part of or appurtenance to such building, including walls, fences, light fixtures, steps, paving, and signs, by additions, reconstruction, alteration, or maintenance involving exterior color changes if cited by individual ordinance; or
d. Any new construction of a principal building or accessory building or structure subject to view from a public way.
2. Within a primary area of historic district:
a. A change in walls or fences, or the construction of walls or fences along public ways;
b. A conspicuous change in the exterior appearance of a nonhistoric building subject to view from a public way by additions, reconstruction, alteration, and/or maintenance involving exterior color change.

(Appellant’s App. pp. 65-66).

As Bradford did not demolish, move, or build a construction, his situation falls within section (c) of 151-06(A)(1) of the ordinance. Although the section revolves around a “conspicuous change,” the word “conspicuous” itself is not defined in the ordinance. Statutory interpretation is the responsibility of the court and is reviewed de novo. See Sun Life Assur. Co. of Canada v. Ind. Dept. of Ins., 868 N.E.2d 50, 55 (Ind.Ct.App.2007), trans. denied. Our goal in statutory interpretation is to determine, give effect to, and implement the intent of the legislature. Gee v. Green Tree Servicing, LLC, 934 N.E.2d 1260, 1262 (Ind.Ct.App.2010). We review the statute as a whole and presume the legislature intended a logical application of the language used in the statute, as to avoid unjust or absurd results. Id.

Black’s Law Dictionary defines conspicuous as “clearly visible or obvious.” Black’s Law Dictionary 323 (8th Ed. 2004). Unlike the trial court’s interpretation, “conspicuous” does not carry a negative or harmful connotation; rather, the meaning relates to visibility or likelihood of being seen. In Tourkow v. City of Fort Wayne, 563 N.E.2d 151, 151 (Ind.Ct.App.1990), trans. denied, a homeowner appealed the historic preservation review board’s denial of her application for a COA to replace the insulbrick siding on her house with vinyl siding. Faced with the requirement that before “a conspicuous change in the exteri- or appearance” of a property located in a historic district can occur a COA must be obtained, we concluded that “[t]he addition of vinyl siding to the exterior of a house is clearly a ‘conspicuous change’ in appearance.” Id. at 153. As such, we interpreted conspicuous in accordance with its dictionary meaning.

Likewise here, Bradford’s modification of replacing the original wood siding with vinyl siding on his property located in the historic district amounted to a visible change in the exterior of the building. Therefore, as it was a conspicuous change in the exterior appearance pursuant to New Albany Ord. § 151.06(A)(1)(c), Bradford had to obtain a COA prior to undertaking the work. We reverse the trial court’s grant of summary judgment in favor of Bradford and grant summary judgment to the NAHPC.

CROSS APPEAL

In its cross-appeal, Bradford contends that the trial court erred when it denied his cross-claim for summary judgment on his argument of inverse condemnation. Specifically, Bradford argues that the Takings Clause of the Fifth Amendment to the United States Constitution prohibits the taking of property without just compensation. Bradford alleges that the City’s ordinance designating the historic district amounted to a demand for cost-prohibitive repairs which deprived it of the property’s economic use.

The Fifth Amendment to the United States Constitution states that “private property [shall not] be taken for public use without just compensation.” U.S. Const. Amend. V. Although property may be regulated to a certain extent, if regulation goes too far, it will be recognized as a taking. Bd. of Zoning Appeals v. Leisz, 702 N.E.2d 1026, 1028 (Ind.1998). There are two discrete categories of regulations that violate the Takings Clause regardless of the legitimate interest advanced. Id. The first consists of regulations that compel a property owner to suffer a physical invasion, no matter how minute, of his property. Id. at 1028-29. The second category concerns regulations that deny “all economically beneficial or productive use of the land.” Id. at 1029. Here, Bradford does not allege a physical invasion, rather it advances a claim for a regulatory taking.

Where a regulation places limitations on land that fall short of eliminating all economically beneficial use, a taking nonetheless may have occurred, depending on a complex set of factors, including: (1) the regulation’s economic effect on the landowner; (2) the extent to which the regulation interferes with reasonable investment-backed expectations; and (3) the character of the government action. Ragucci v. Metro. Dev. Comm’n of Marion Co., 702 N.E.2d 677, 683 (Ind.1998).

First, with respect to the City ordinance’s economic effect, Bradford relies on the Affidavit by Ronald Craig, one of Bradford’s principals, who testified that:

[NAHPC’s] demand to replace the siding with wood is economically impracticable. The building is already expensive to maintain relative to the rental value. Removing the vinyl siding and repairing the weathered wood siding with new wood siding of a similar kind and the continued repainting of the same is not financially rational for me or any other owner.

(Appellant’s App. pp. 140-41). Initially we note that while Craig’s affidavit makes conclusory statements that repairing the original clapboard siding with similar wood siding is not financially rational, it fails to provide a supporting factual basis for the conclusion and thus merely serves as a self-serving affidavit. See Abdalla v. Qadorh-Zidan, 913 N.E.2d 280, 288 (Ind.Ct.App.2009), trans. denied (a party’s self-serving affidavit cannot be used to satisfy the party’s burden on summary judgment). Furthermore, as we have held in the past, a diminution of property value, standing alone, will not establish a taking. See Ragucci, 702 N.E.2d at 683.

With respect to the City’s ordinance’s interference with reasonable investment-backed expectations, we find that the ordinance does not prohibit improvements or maintenance on existing structures, it merely regulates the manner in which the improvements or maintenance are to be performed. It is within Bradford’s decision to maintain the property and the timeline thereof. Bradford’s investment-backed expectations are no more frustrated than those of a landowner who bought a piece of land expecting to develop it in a certain manner, only to later find the municipality enacted a zoning ordinance that seriously restricts those plans. See id. at 684.

Lastly, the character of the governmental action also weighs against finding an unconstitutional taking. A taking is more readily found when the government action is “characterized as a physical invasion,” and less likely when the “interference arises from some public program adjusting the benefits and burdens of economic life to promote the common good.” Id. (citing Penn Central Transportation Co. v. City of New York, 438 U.S. 104, 124, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978)). In Penn Central, the Supreme Court upheld comprehensive governmental regulation of private property designed to preserve historic buildings in the City of New York. See id. Likewise, our Supreme Court has recognized that states and cities may enact land-use restrictions or controls to enhance the quality of life by preserving the character and desirable aesthetic features of a city. See, e.g., New Orleans v. Dukes, 427 U.S. 297, 96 S.Ct. 2513, 49 L.Ed.2d 511 (1976); Berman v. Parker, 348 U.S. 26, 33, 75 S.Ct. 98, 101, 99 L.Ed. 27 (1954). Here, the purpose of the City’s ordinance is “to promote the educational, cultural and general welfare of the citizens of New Albany and [ ] to ensure the viability of the [d]owntown and other historic commercial activities and to enhance tourism[.]” (Appellant’s App. p. 61). As such, the ordinance serves a substantial public purpose. We conclude that no taking has occurred and affirm the trial court’s denial of Bradford’s request for summary judgment on his claim of inverse condemnation.

CONCLUSION

Based on the foregoing, we find that Bradford was not entitled to actual notice of the potential designation of the historic district and that Bradford was required to obtain a Certificate of Appropriateness when it replaced the property’s original siding with vinyl siding. Therefore, we reverse the trial court’s grant of summary judgment in favor of Bradford and grant summary judgment on these grounds to NAHPC.

Also, we conclude that the trial court properly denied Bradford’s request for summary judgment on his claim for inverse condemnation

Reversed in part and affirmed in part.

MATHIAS, J., concurs.

FRIEDLANDER, J., dissents with separate opinion.

FRIEDLANDER, Judge,

dissenting.

I agree with the Majority that Bradford Realty’s notice that this property was to be designated as located within a historic district comported with due process principles. I also agree that the trial court erred in concluding that Bradford had a claim for inverse condemnation. I respectfully dissent, however, from the conclusion that the trial court erred in ruling that Bradford was not required to obtain a Certificate of Appropriateness (COA) when it replaced the original siding with vinyl siding.

The Majority aptly notes that this question turns upon the interpretation of New Albany Ordinance § 151-06(A)(l)(e), and specifically upon the meaning of “conspicuous change.” Focusing on the term “conspicuous”, the Majority concludes that this phrase means “clearly visible or obvious.” I agree with that. Clearly, it refers to appearance. We cannot lose sight of the fact, however, that “conspicuous” modifies the term “change”. Therefore, I interpret Ordinance § 151-06(A)(l)(e) to mean that a COA is necessary if the owner seeks to do something that will effect a change that is clearly visible or obvious. In common terms, it would seem that the pertinent inquiry is whether the work in question effects a change from the way the structure looked before the work was performed. I note also that merely repainting a structure would not require a COA unless the new color is different than the old color. See Ordinance § 151-06(A)(l)(c) (a COA must be issued before a permit is issued for a “a conspicuous change in the exterior appearance of any historic building ... by ... maintenance involving exterior color changes”). Thus, for instance, although repainting a house using the same color will presumably result in a noticeable difference in appearance, such would not require a COA unless the new color is different from the old. This leads me to conclude that “conspicuous change” does not include any work that effects a perceptible result with respect to appearance, such as a fresh coat of paint that is the same color, but instead, considered in context, it can only mean a change in character with respect to appearance.

Turning now to the instant case, the question is whether the new vinyl siding installed by Bradford Realty effected a conspicuous change in appearance with respect to the character of the building in question. The Majority concludes that it did, citing Tourkow v. City of Fort Wayne, 563 N.E.2d 151 (Ind.Ct.App.1990), trans. denied. In so doing, the Majority cites Tourkow in a manner that seems to support the sweeping proposition that replacing wood siding with vinyl siding always constitutes a conspicuous change in appearance. See Op. at 88 (“Bradford’s modification of replacing the original wood siding with vinyl siding on his property located in the historic district amounted to a visible change in the exterior of the building”). I acknowledge that there is language in Tourkow that would tend to support this generalization. (See Tourkow v. City of Fort Wayne, 568 N.E.2d at 153) (“[t]he addition of vinyl siding to the exterior of a house is clearly a ‘conspicuous change’ in appearance”). I note, however, that this conclusion in Tourkow was not drawn in a situation where, as here, wood clapboard siding was replaced with vinyl siding. Rather, in that case insulbrick was replaced with vinyl siding. Insulbrick consists of a fiberboard sheathing coated with tar and an embedded granular material, which is usually embossed and colored to look like brick or stone. Clearly, a change from insulbrick to vinyl siding, i.e., from simulated stone or brick to vinyl-covered clapboard siding, would result in a conspicuous change with respect to the character of the building’s appearance.

Be that as it may, I reject Tourkow as authority for the proposition that the application of vinyl siding to wood clapboard siding as a matter of law necessarily effects a “conspicuous change in appearance” within the meaning of Ordinance § 151-06(A)(l)(c). First, the original siding in Tourkow to which the vinyl siding replacement must be compared differed markedly from the original siding in the instant case. Second, even assuming Tourkow could be interpreted as having established that vinyl siding is, as a matter of law, conspicuously different in appearance from wood siding, I believe that determination is dated and therefore no longer valid. Tourkow was decided more than twenty years ago and the quality and appearance of artificial siding has advanced steadily and somewhat markedly. Perhaps there was a time when all vinyl siding was markedly different from wood in appearance, but that is no longer the case.

This leads me to conclude that the assessment of whether the vinyl siding installed by Bradford resulted in a “conspicuous change” within the meaning of Ordinance § 151 — 06(A)(1)(c) is one that must be made by reviewing the appearance of the home before and after the work was completed. The only way for this court to review the appearance on the home would be through photographs. Fortunately, the parties included photographs in the record that depict the home before, during, and after the work was completed. I reiterate that, in my view, these are the sole means by which we can evaluate the claim of “conspicuous change” with respect to appearance. These photos reflect that the exterior walls of the structure had what appears to be weathered and somewhat faded white clapboard siding before the work was performed. After the work was completed, it still appeared to have exterior walls made of white clapboard siding. The only difference between the two that can I perceive is that, although the house is the same color in the “after” photo as before, it is brighter — just as a house would look with a fresh coat of paint. So far as I can see, the house looks the same and is the same color, albeit with the appearance of being newly painted. This is not a conspicuous change in appearance with respect to the character of the building within the meaning of Ordinance § 151 — 06(A)(1)(c), and I would affirm the trial court on that basis.

      . In a related argument Bradford claims that the City violated the notice requirements included within the HPC’s Rules of Procedure. Specifically, these Rules state that all property owners within the newly proposed historic district shall be notified and a public hearing shall be held for discussion and clarification of the proposed district. (See Appellant’s App. p. 159).
      However, first it should be noted that the alleged violation did not serve as an independent basis of the trial court’s grant of summary judgment. Although the trial court mentioned these rules very briefly, the trial court’s conclusion with respect to notice is based solely on the due process mandate of the Fourteenth Amendment. But, secondly and more importantly, in support of its argument, Bradford designated Rules of Procedure which were adopted on March 9, 2006. The events at issue all took place in 2002. Bradford did not designate any evidence supporting his claim that the HPC violated its own notice requirement in 2002. Therefore, we cannot evaluate its argument.


source: Caselaw Access Project

author: BARNES, Judge.

license: Public Domain

text:
    CITY OF EVANSVILLE and Evansville Water and Sewer Utility, Appellants-Plaintiffs, v. UNITED STATES FIDELITY AND GUARANTY COMPANY, et al., Appellees-Defendants.
    No. 49A02-1104-PL-375.
    Court of Appeals of Indiana.
    March 23, 2012.

      George M. Plews, Donna C. Marrón, Tonya J. Bond, Todd G. Relue, Plews Shadley Racher & Braun, LLP, Indianapolis, IN, Attorneys for Appellants, City of Evansville and Evansville Water and Sewer Utility.
    Bryce H. Bennett, Jr., Jeffrey B. Fecht, Riley Bennett & Egloff, LLP, Indianapolis, IN, Steven Schulwolf, Kathryn A ‘Hearn, Michaels & May, P.C., Chicago, IL, Attorneys for Appellees, United States Guaranty Company, St. Paul Fire and Marine Insurance Company, Fidelity and Guaranty Insurance Company, and Fidelity Guaranty Insurance Underwriters, Inc.
    Ginny L. Peterson, Kightlinger & Gray, LLP, Indianapolis, IN, Bruce D. Cele-brezze, Bryan S. Chapman, Sedgwick, LLP, Chicago, IL, Attorneys for Appel-lees, Arrowood Surplus Lines Insurance Company and Landmark American Insurance Company.
   OPINION

BARNES, Judge.

Case Summary

The City of Evansville (“the City”) appeals the trial court’s grant of summary judgment in favor of United States Fidelity and Guaranty Company (“USF & G”), Fidelity and Guaranty Insurance Company, Fidelity and Guaranty Insurance Underwriters, Inc., St. Paul Fire and Marine Insurance Company (“St.Paul”), Princeton Excess & Surplus Lines Insurance Company, Hartford Casualty Insurance Company (“Hartford”), Twin City Fire Insurance Company, Zurich American Insurance Company, American Guarantee and Liability Insurance Company, Arrowood Surplus Lines Insurance Company (“Arrowood”), and Landmark American Insurance Company (“Landmark”) (collectively, “Insurers”). We affirm.

Issues

The City raises several issues, which we consolidate and restate as whether the trial court properly determined that the Insurers were entitled to summary judgment because the City was seeking coverage for projects to prevent future discharges of combined-sewer overflows rather than to remediate past discharges.

Facts

Insurers sold primary and excess-layer general liability insurance policies to the City at various times. The policies, except for the Arrowood and Landmark policies, allegedly contain provisions regarding coverage for “ ‘damages’ that arise from ‘bodily injury or ‘property damage’ caused by an ‘occurrence’ during the policy period” and “ ‘damages’ that result from ‘personal injury’ during the policy period” subject to all the other definitions, terms, conditions, and exclusions in the policies. App. pp. 152-53, 698. The Insurers, with the exception of Arrowood and Landmark, did not designate the relevant insurance policies. In their motion for summary judgment, the Insurers stated that, for purposes of the summary judgment motion, the policies at issue contained this language. Id. at 152-53. The City does not argue that the policies do not contain this language. However, because the Insurers did not actually designate the policies, we have not been provided with the contractual definitions of the relevant terms.

The Arrowood and Landmark policies were designated and contained coverage for “ultimate net loss” because of “bodily injury,” “property damage,” “personal injury” or “advertising injury” caused by an “occurrence” during the policy period. Id. at 235, 279. The Arrowood and Landmark policies define “occurrence” with respect to “bodily injury” and “property damage” as “an accidental happening, including continuous and repeated exposure to substantially the same general harmful conditions which results in ‘bodily injury’ or ‘property damage.’ ” Id. at 217, 261. The term “ultimate net loss” is defined as:

the total sum which an insured becomes obligated to pay through either adjudication or compromise by reason of “bodily injury,” “property damage,” “personal injury,” or “advertising injury,” arising out of the insured’s activities .... “Ultimate net loss” also includes:
b. Legal expenses, premiums to release attachments or appeal bonds, expenses for lawyers and investigators and other persons for defense, settlement or investigation of “claims” and “suits” which are paid under Coverage Parts II or III.

Id. at 219, 263.

The City’s original sewer system was constructed approximately a century ago. The sewer system is a combined system, whereby “certain lines that transport sewage away from homes and businesses mix with stormwater collected by the City’s storm drains.” Id. at 437. Such combined sewer systems are - designed such that, during periods of heavy rain, a combined sewer overflow (“CSO”) will occur, and the overfill “exits the combined system through designated ‘outfalls’ and enters local streams, lakes, and rivers.” Id. at 437-38. Thus, the City’s system is designed to discharge diluted, but untreated sewage at certain times.

One of the City’s outfalls is Bee Slough, which discharges into the Ohio River. Bee Slough consists of three sections. The first section of Bee Slough is enclosed and transitions into a concrete-lined section, which is approximately one mile long. Bee Slough then transitions back into an enclosed section. When the Ohio River is at a high water level, a levee gate is closed, and CSO discharges fill Bee Slough. The combined sewage “that is allowed to stand in the slough for days essentially undergoes the primary treatment process of gravity separation.” Id. at 720. When the river recedes, the levee gate is opened, and “the liquid portion of the contained area drains to the river.” Id. However, solid materials that have settled to the bottom of the concrete channel remain. The City uses a front-end loader and dump truck to remove the solids and clean the concrete channel annually.

The City has been issued National Pollution Discharge Elimination System (“NPDES”) permits, which “set specific requirements and limitations on CSO discharges during wet weather conditions and prohibit CSO discharges during dry weather.” Id. at 438. However, stricter requirements regarding CSO’s have been enacted since the 1990’s. The City, like other CSO communities, is required to develop a Long-Term Control Plan (“LTCP”) to coordinate long-term sewer improvement projects, and the City submitted a LTCP in 2002, but it was not approved. In 2005, the City sought reis-suance of its NPDES permits, and the Environmental Protection Agency (“EPA”) became involved in the negotiations. The EPA, Indiana Department of Environmental Management (“IDEM”), and the City entered into negotiations over a consent decree and the City’s LTCP, but they could not agree on terms.

In June 2007, the City filed a complaint for declaratory judgment against some of the Insurers. In June 2009 and April 2010, the City filed motions for leave to amend its complaint to add additional insurer defendants, which the trial court granted. The City alleged that it had liability insurance policies with the Insurers for the relevant time periods that provided coverage for “the City’s cost of remedial measures required by government to correct past harm caused by combined sewer overflows and to prevent further harm.” Id. at 698. The City sought “an award of its past and future Defense Costs and its past and future Indemnity Costs, up to policy limits, resulting from liability claims by government that overflows from the City’s combined sewer overflow systems have harmed the environment.” Id. at 699.

In June 2009, the United States and the State of Indiana, on behalf of the EPA and IDEM, filed a complaint against the City in federal district court, and they amended the complaint in December 2009. The Government alleged that the City had “unauthorized and illegal discharges of pollutants and other violations” of the Clean Water Act and its NPDES permits. Id. at 665. The Government claimed that the City had “discharged sewage and other harmful pollutants from the sewage collection systems that are part of its Publicly Owned Treatment Works (“POTW”) onto public and private property and into navigable waters flowing through and around the City of Evansville, including but not limited to the Ohio River, Pigeon Creek, Bee Slough, and Carpentier Creek.” Id. The Government sought: (1) a permanent injunction directing the City “to take all steps necessary to come into permanent and continuous compliance with all terms and conditions of its NPDES permits ...;” (2) an order permanently enjoining the City “from causing or contributing to pollution that is presenting an imminent and substantial endangerment to the health of persons in the service area of [the City’s] POTW and ordering [the City] to take such other action as may be necessary to abate and mitigate such endangerment;” (3) “[a] permanent or temporary injunction ordering [the City] to mitigate the past environmental harm caused by its violations ...;” (4) a judgment of civil penalties for violations; and (5) an award of costs and disbursements to the United States and the State of Indiana. Id. at 683-84.

In October 2010, USF & G filed a motion for summary judgment alleging that the City’s claim against the Insurers was not covered by the insurance policies because the claim was based on proposed improvements and upgrades to its sewer system, fines, and attorney fees, rather than remediation of past pollution. USF & G’s argument was based primarily on Cinergy Corp. v. Associated Elec. & Gas Ins. Services, Ltd., 865 N.E.2d 571 (Ind.2007), (“Cinergy I”), and related opinions, Cinergy Corp. v. St. Paul Surplus Lines Ins., 873 N.E.2d 105 (Ind.Ct.App.2007), (“Cinergy II”), trans. denied, and Cinergy Corp. v. St. Paul Surplus Lines Ins., 915 N.E.2d 524 (Ind.Ct.App.2009), (“Cinergy III”), trans. denied. The other defendant insurers, except for Arrowood and Landmark, filed motions to join in USF & G’s motion for summary judgment. Arrowood and Landmark filed a separate motion for summary judgment, in which they incorporated USF & G’s arguments and designation of evidence and also designated their own insurance policies.

The City filed a response to the Insurers’ motions for summary judgment and argued that a $15 million project to construct a dam and convert Bee Slough into a wetland was, at least in part, a remedial measure to allow present and future contaminants at Bee Slough to biodegrade naturally. The Bee Slough project would result in some untreated sewage being diverted into the constructed wetland during substantial rainstorms, and the sewage would be allowed to naturally biodegrade in the wetland. The City’s designation of evidence included affidavits from: (1) Harry Lawson, Superintendent of Wastewater for the City of Evansville Water and Sewer Utility; (2) Dr. William Gonwa; and (3) Dr. Francis Magilligan.

The Insurers then filed reply briefs in support of their motions for summary judgment and designated additional evidence in support of their motions, including excerpts from Dr. Gonwa’s deposition. USF & G’s also designated a news release issued by the City in November 2010 regarding a consent decree reached between the City and the Government and its expected approval by the Water and Sewer Utility Board. See App. p. 534. According to the news release, the consent decree required the City to develop a LTCP within two years, gave the City an additional nineteen and one-half to twenty-five years to complete the improvements to the sewer system, and required the City to pay a civil penalty of $490,000 “to resolve all claims and liability for alleged past violations.” Id. at 535. However, the actual consent decree was not designated by the parties in their summary judgment submissions. At oral argument on appeal, the City asserted that the consent decree process was not finalized and that the EPA could still order the City to perform other activities, including removal of contaminated soil.

After a hearing on the motions for summary judgment, the City filed a motion for leave to file a surreply brief to address “USF & G’s attacks on the City’s expert affidavits.” Id. at 1123. The City designated additional portions of Dr. Gonwa’s deposition. Although the Insurers objected to the City’s motion to file a surreply and designation of additional evidence, the trial court granted it.

On April 5, 2011, the trial court granted the Insurers’ motions for summary judgment. The trial court concluded the insurance policies at issue did “not provide any coverage for Plaintiffs’ alleged liability, including fines and penalties” as a result of the Government’s action against the City “or any other related administrative or enforcement actions.” Id. at 27. The trial court determined that our supreme court’s decision in Cinergy I controlled and “[t]he amounts Evansville seeks in this action are for infrastructure improvement projects with the purpose of bringing Evansville’s sewer system into legal compliance by reducing the amount of combined sewer overflow events (“CSOs”) in the future.” Id. The City’s claims did not “involve ‘damages’ and/or ‘ultimate net loss’ on account of ‘property damage,’ ‘bodily injury1, or ‘personal injury’ caused by an ‘occurrence,’ ” and the Insurers also did not owe the City a duty to defend. Id. at 28. The City now appeals.

Analysis

The City argues that the trial court improperly determined the Insurers were entitled to summary judgment because the City was seeking coverage for projects related to the prevention of future discharges rather than remediation of past discharges. Our standard of review for a trial court’s grant of a motion for summary judgment is well settled. Summary judgment is appropriate only where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Ind. Trial Rule 56(C); Mangold ex rel. Mangold v. Ind. Dep’t of Natural Res., 756 N.E.2d 970, 973 (Ind.2001). All facts and reasonable inferences drawn from those facts are construed in favor of the nonmovant. Mangold, 756 N.E.2d at 973. Our review of a summary judgment motion is limited to those materials designated to the trial court. Id. We must carefully review a decision on summary judgment to ensure that a party was not improperly denied its day in court. Id. at 974.

Where a trial court enters findings of fact and conclusions thereon in granting a motion for summary judgment, as the trial court did in this case, they do not alter the nature of our review. Rice v. Strunk, 670 N.E.2d 1280,1283 (Ind.1996). In the summary judgment context, we are not bound by the trial court’s specific findings of fact and conclusions thereon. Id. They merely aid our review by providing us with a statement of reasons for the trial court’s actions. Id.

Generally, the interpretation of an insurance policy presents a question of law and is appropriate for summary judgment. Cinergy I, 865 N.E.2d at 574. Clear and unambiguous language in insurance policy contracts, like other contracts, should be given its plain and ordinary meaning. Id. Where the policy language is ambiguous, insurance contracts are to be construed strictly against the insurer and the language must be viewed from the standpoint of the insured. Id. “Ambiguous terms will be construed in favor of the insured, but for purposes of summary judgment, only if the ambiguity exists by reason of the language used and not because of extrinsic facts.” Id.

The City’s arguments on appeal concern our supreme court’s opinion in Cinergy I and the related opinions. In Cinergy I, Associated Electric & Gas Insurance Services Limited (“AEGIS”) and other insurance companies filed a complaint for declaratory judgment against Cinergy and other power companies insured by policies issued by the insurance companies. The declaratory judgment complaint sought to determine the insurance companies’ obligations regarding a federal lawsuit filed against the power companies by the United States, three states, and several environmental organizations pursuant to the Clean Air Act. The federal lawsuit alleged that the power companies had failed to obtain permits and discharged excess emissions into the air. The power companies filed a motion for partial summary judgment in the declaratory judgment action seeking defense costs, but the trial court denied the motion.

On appeal, our supreme court analyzed the insurance policies and concluded that, “[ajfter the self-insured retention amounts specified in the policies are satisfied, AEGIS is responsible for expenses incurred by the power companies in the investigation, negotiation, settlement, and defense of any claim or suit seeking damages because of or resulting in bodily injury or property damage with respect to any accident, event, or continuous or repeated exposure to conditions.” Id. at 576-77. “The essential controversy is thus whether the federal lawsuit against the power companies is such a suit-one that seeks damages because of or resulting in bodily injury or property damage with respect to any accident, event, or continuous or repeated exposure to conditions.” Id. at 577. The court focused on a “distinction between remedial and prophylactic remedies as a basis for determining coverage....” Id. at 581.

The court reviewed the federal complaint against the power companies and noted that the complaint’s prayer for relief requested that the federal district court take the following action:

(a) permanently enjoin the power companies from operating or constructing various power plants “except in accordance with the Clean Air Act and any applicable regulatory requirements” or the administrative consent order;
(b) order the power companies “to remedy their past violations by, inter alia, requiring the Defendants to install, as appropriate, the best available control technology, the best available technology, or technology to achieve the lowest achievable emissions rate on each boiler unit” at various power plants, and “to take such other measures as are necessary to bring the Defendants’ plants into compliance” with provisions of the Act and the State Implementation Plans, “including emission offsets, if necessary,” and to otherwise comply with the Act;
(c) order the power companies “to take other appropriate actions to remedy, mitigate, and offset the harm to public health and the environment caused by the violations of the Clean Ah’ Act”;
(d) order the power companies “to apply for permits that are in conformity” with requirements of the Act and the State Implementation Plans;
(e) order the power companies “to conduct audits of their operations to determine if any additional modifications have occurred which would require them to meet” various statutory and regulatory requirements;
(f) assess “a civil penalty ... of up to $25,000 per day for each violation of the Clean Air Act and the applicable regulations, and $27,500 per day for each such violation on or after January 30, 1997”;
(g) award costs of the action; and
(h) grant “such other relief as the Court deems just and proper.”

Id. at 578.

Despite language in the federal court lawsuit regarding the remediation of past pollution, our supreme court determined that “the primary thrust of the federal lawsuit is to require the power companies to incur the costs of installing government-mandated equipment intended to reduce future emissions of pollutants and prevent future environmental harm.” Id. at 579. “Notwithstanding the federal lawsuit’s various references to seeking relief that would ‘remedy’ past violations and harm to public health, the power companies acknowledge that the injunctive remedy sought by the federal lawsuit is ‘to force Cinergy to install equipment to contain any further excess emissions and allow the environment to recover.’ ” Id. at 582. The court concluded that the federal lawsuit was “directed at preventing future public harm, not at obtaining control, mitigation, or compensation for past or existing environmentally hazardous emissions.” Id.

The Cinergy I court noted that the policies covered damages caused by an “occurrence” and that the power companies’ claims did not qualify as an “occurrence” under the policies. Id. “[Wjhat the power companies here claim to be covered, the installation costs for equipment to prevent future emissions, is not caused by the happening of an accident, event, or exposure to conditions but rather result from the prevention of such an occurrence.” Id. The court discerned “no ambiguity here that would permit the occurrence requirement reasonably to be understood to allow coverage for damages in the form of installation costs for government-mandated equipment intended to reduce future emissions of pollutants and to prevent future environmental harm.” Id. The court ultimately determined that the costs of installing government-mandated equipment intended to reduce future emissions and to prevent future environmental harm did not qualify as “ultimate net loss” under the policies. Id. at 583. As a result, the court held that the trial court properly granted partial summary judgment regarding costs incurred by the power companies in defending the federal lawsuit.

We reached similar conclusions in Ciner-gy II and Cinergy III. In Cinergy II, 873 N.E.2d 105, a federal lawsuit was filed against Cinergy alleging that, after certain maintenance and repair projects, Cinergy failed to install additional air emissions equipment, causing increased emissions of harmful substances. The claims regarding emissions at a Cayuga plant were later dismissed from the federal lawsuit. The insurers filed a motion for partial summary judgment, arguing that they were not responsible for claims related to the Cayuga plant because there was no “occurrence.” The trial court granted partial summary judgment to the insurers regarding Cinergy’s claim for defense costs when it concluded that Cinergy’s claim did not involve an “occurrence.” Relying on Cin-ergy I, we concluded that, because the relevant claim was dismissed from the federal lawsuit, there was no occurrence to trigger the policies’ coverage provisions. “[I]n order for the Insurers to bear any responsibility for payment of costs, there must first be a claim or claims arising out of an occurrence.” Cinergy II, 873 N.E.2d at 115.

In Cinergy III, the insurers moved for summary judgment, claiming that they had “no obligation to defend or indemnify Cin-ergy for any of the claims being adjudicated in the underlying federal litigation” based on Cinergy I and Cinergy II. Cinergy III, 915 N.E.2d at 528. The trial court granted summary judgment, and we affirmed on appeal. We held that costs associated with Cinergy’s federal-court ordered surrender of emissions allowances were “not caused by the happening of an accident, event, or exposure to conditions but rather resulted] from the prevention of such an occurrence.” Id. at 534. We further concluded that the insurance policies did not cover any civil penalties or attorney fees because there was “no occurrence” under the policies. Id.

The parties also rely on Newnam Manufacturing, Inc. v. Transcontinental Ins. Co., 871 N.E.2d 396 (Ind.Ct.App.2007), trans. denied. In the mid-1980’s, a manufacturer modified equipment without the appropriate permits, and in 2003, IDEM brought an administrative action against the manufacturer based on the modification. The manufacturer eventually was granted summary judgment and sought reimbursement from its insurance carrier for its attorney fees. The trial court granted summary judgment to the insurance carrier on the attorney fees issue. On appeal, we relied upon Cinergy I to conclude that IDEM’s action concerned reduction of future emissions, not a response to an “occurrence.” Newnam, 871 N.E.2d at 403. The manufacturer argued that IDEM’s action concerned remediation because “the only way to remediate air pollution is by limiting further emissions.” Id. We rejected this argument based on Cin-ergy I. We further concluded that, because there had been no specific allegation that the manufacturer’s excess emissions had contaminated another person’s land or interfered with the enjoyment of such land, there was no coverage under the “personal injury” provision of the policy. Id. at 405. Ultimately, we determined that, “[bjecause there was no potential for coverage under the policy, [the company’s] lawsuit did not trigger [the insurer’s] duty to defend.” Id.

As in Cinergy I, the essential controversy here is whether the federal lawsuit against the City is a suit that seeks damages covered by the policies issued by the Insurers. The policies, except for the Arrowood and Landmark policies, apparently contain provisions regarding coverage for “ ‘damages’ that arise from ‘bodily injury’ or ‘property damage’ caused by an ‘occurrence’ during the policy period” and “ ‘damages’ that result from ‘personal injury’ during the policy period” subject to all the other definitions, terms, conditions, and exclusions in the policies. App. pp. 152-53, 698. The Arrowood and Landmark policies contained coverage for “ultimate net loss” because of “bodily injury,” “property damage,” “personal injury” or “advertising injury” caused by an “occurrence” during the policy period. Id. at 235, 279. The Arrowood and Landmark policies define “occurrence” with respect to “bodily injury” and “property damage” as “an accidental happening, including continuous and repeated exposure to substantially the same general harmful conditions which results in ‘bodily injury’ or ‘property damage.’ ” Id. at 217, 261.

As in Cinergy I, the policies here require an “occurrence,” and under Cinergy /, projects to prevent pollution, rather than remediate past pollution, do not qualify as an occurrence. The City argues that Cinergy I does not control here because it designated evidence that the Bee Slough project was at least partially remedial. The Insurers disagree, noting that the City failed to submit any documentation that it was ordered to correct past contamination and that the designated evidence fails to demonstrate a genuine issue as to whether the wetlands project is remedial.

In response to the Insurers’ motion for summary judgment, the City relied on affidavits from Harry Lawson, the Superintendent of Wastewater for the City of Evansville Water and Sewer Utility, Dr. Gonwa, and Dr. Magilligan. Lawson submitted an affidavit claiming that the City was informed in 2005 that EPA and IDEM would be “seeking remedial measures for previous CSO and alleged SSO [Sanitary Sewer Overflow] discharges as part of an enforcement action brought under the CWA and related Indiana statutes.” Id. at 439. Lawson’s affidavit provided:

The City has cleaned and disinfected Bee Slough, and has developed a plan in response to the USEPA’s enforcement action to construct a dam and convert Bee Slough into a wetland at an estimated cost of $15,000,000.00. By constructing the dam and creating a wetland, the City will contain the CSO related contaminants at the Bee Slough site.

Id.

Dr. Gonwa’s affidavit stated:

The only remedy available to Evansville will involve a substantial investment in measures that will significantly reduce or eliminate CSO discharges.... Source control will eliminate the current CSO impacts to these two water bodies [Bee Slough and Pigeon Creek], It will allow biodegradation and other natural process to improve sediment and water quality in Bee Slough over time. Source control may replace or eliminate the need for periodical removal and disposal by the City of CSO-impacted solids that accumulate in and along Bee Slough. There may, however, be further requirements to remove accumulated solids discharged with CSOs to Bee Slough.

Id. at 444. According to Dr. Gonwa, “[t]his wetland would contain the CSO pollutants, limit discharges to the Ohio River and other bodies of water, and allow for biodegradation and other natural processes to diffuse and remediate the pollutants.” Id. Dr. Gonwa opined that “CSO control measures and sediment removal affecting Pigeon Creek and Bee Slough, that may be required of the City as a result of the U.S. EPA’s and the State of Indiana’s enforcement activities, are remedial in nature or at a minimum have a substantial remedial component.” Id. at 445. “The mandated removal of CSO-impacted sediment is directed solely at remediating and containing past contamination that resulted from the long-term impact of decades of CSO discharges.” Id. Although Dr. Gonwa’s affidavit discusses “mandated removal” of sediments, he admitted in his deposition, which was designated by the Insurers, that he was aware of no requirement that solids be removed from Bee Slough. In his deposition, Dr. Gonwa also testified that all of the projects identified in the LTCP contained “some remedial components.” Id. at 1154-55.

Dr. Magilligan’s affidavit provided that “sediment storage can ... be considered a remediation strategy as well as mitigation strategy” and “most contaminants absorbed on sediment readily biodegrade and can be transformed to lower toxicities, and natural recovery processes, such as storing sediment on floodplains, serve to contain, destroy, or reduce the bioavailability of contaminated sediments.” Id. at 452-53. However, Dr. Magilligan’s affidavit was not specific to Bee Slough or Evansville; rather, it was based solely on general scientific propositions.

The question is whether there is a genuine issue of material fact regarding whether the Bee Slough conversion to a wetland is remedial, i.e., cures past pollution. Our review of the designated evidence shows that there is no genuine issue of material fact on this issue. In response to the Insurers’ motions for summary judgment, the City designated no evidence that it was actually required to remediate any pollution or remove any polluted sediments. Although it claims that the Bee Slough wetland conversion is partially remedial, the City presented no specific evidence that Bee Slough was contaminated or that it had been ordered to remediate Bee Slough. Dr. Gonwa’s opinion that remedial sediment removal “may be required of the City” is pure speculation. App. p. 445. Dr. Magilligan’s affidavit did not specifically address the situation at Bee Slough or Evansville. Further, Lawson’s affidavit did not contain evidence that the City actually had been ordered to perform a cleanup of contaminants.

“[M]ere speculation cannot create questions of fact.” Beatty v. LaFountaine, 896 N.E.2d 16, 20 (Ind.Ct.App.2008), tram, denied. “Opinions expressing a mere possibility with regard to a hypothetical situation are insufficient to establish a genuine issue of material fact.” Id.‘[G]uesses, supposition and conjecture are not sufficient to create a genuine issue of material fact to defeat summary judgment.’ ” Id. (quoting Midwestern Indem. Co. v. Sys. Builders, Inc., 801 N.E.2d 661, 666 (Ind.Ct.App.2004), trans. denied). The designated evidence here amounts to mere speculation that the City may be required to perform remediation in the future, and such evidence is insufficient to demonstrate a genuine issue of material fact.

We concede that the federal court complaint does include a request that the City remediate pollution. The City designated evidence that the federal court lawsuit against it included demands for: (1) an order permanently enjoining the City “from causing or contributing to pollution that is presenting an imminent and substantial endangerment to the health of persons in the service area of [the City’s] POTW and ordering [the City] to take such other action as may be necessary to abate and mitigate such endangerment;” and (2) “[a] permanent or temporary injunction ordering [the City] to mitigate the past environmental harm caused by its violations.... ” App. p. 684. However, the federal court complaint in Cinergy I also requested an order that the power companies “take other appropriate actions to remedy, mitigate, and offset the harm to public health and the environment caused by the violations of the Clean Air Act.” Id. at 1058. Our supreme court held that, even though the federal court complaint included language requesting mitigation and a remedy of the Clean Air Act violations, the “primary thrust” of the lawsuit was a reduction of future emissions and pollution. Cinergy I, 865 N.E.2d at 579. Similarly, it is clear that the “primary thrust” of the federal court lawsuit against the City was the reduction of future CSO emissions.

Given the lack of genuine issues of material fact showing that the Bee Slough project is remedial, we conclude that Cinergy I governs this action and precludes the City’s claim as a matter of law. The City claims that Cinergy I is distinguishable because it concerned a Clean Air Act violation rather than a Clean Water Act violation, the federal complaint in Cinergy I contained general allegations of environmental harm rather than impacts in specific streams, and the relief sought is different. However, we find those differences immaterial. The holding of Cinergy I is that prevention of future environmental harm, rather than remediation of past contamination, is not an “occurrence” under insurance policies, and the policies at issue here contain similar provisions. The differences between the instant action and Cinergy I do not impact that ultimate holding. The trial court properly granted summary judgment to the Insurers based on Cinergy I.

Conclusion

The trial court properly granted summary judgment to the Insurers. We affirm.

Affirmed.

KIRSCH, J., and BRADFORD, J„ concur.

      . Oral argument was held on February 15, 2012. We commend the attorneys for their advocacy.

      . On appeal, the City also cites a copy of a Hartford insurance policy "that was originally filed by the City in the original proceeding in support of its motion for partial summary judgment [on a different issue].” Appellant’s Br. p. 13 n. 1 (citing App. p. 1253). However, that policy was not designated in the instant summary judgment proceedings, and as a result, we cannot consider that policy on appeal. A portion of that policy and a portion of the St. Paul policy appear to have been designated by the City as part of Emily Cris-ler’s affidavit, and we may consider those portions of the policies on appeal. See App. p. 480.

      . In any insurance coverage dispute, copies of the entire policy ideally should be provided to the court.

      . One of the City's experts, Dr. William Gon-wa, stated, “remedial is past-looking, trying to clean up past contamination issues; whereas, the forward-looking projects are looking to prevent future contamination.’’ App. p. 1155.

      . USF & G later filed a motion to substitute a corrected designation of evidence in support of its motion for summary judgment, which the trial court granted.

        . During the trial court proceedings, at the City’s request, the trial court issued an order declaring certain documents to be confidential. In this appeal, however, the City filed its appendix, which contains documents labeled confidential, but it failed to comply with the requirements of Indiana Administrative Rule 9(G)(4) and Indiana Trial Rule 5(G). Consequently, the City waived the confidentiality of the documents. See Recker v. Review Bd. of Ind. Dep’t of Workforce Development, 958 N.E.2d 1136, 1138 n. 4 (Ind.2011).

      . We also noted that Cinergy conceded some of the policies involved "expressly excludefd] fines or penalties,” Cinergy III, 915 N.E.2d at 534 n. 8, and that "penalties are not included within the ordinary meaning of damages.” Cinergy III, 915 N.E.2d at 534 n. 9 (citing Hartford Accident & Indem. Co. v. Dana Corp., 690 N.E.2d 285, 298 (Ind.Ct.App.1997), trans. denied).

      . The City also argues that the policies here are different because some of the policies “define 'property damage’ to include a 'loss of use’ of property that is not physically harmed” and some of the policies "provide separate ‘personal injury’ that is triggered by the ‘offenses’ of 'wrongful entry and/or 'the invasion of private occupancy of a premise.” Appellant’s Br. p. 34. The City bases its argument on definitions of "personal injury” and "property damage” in the Hartford and St. Paul policies. However, only a few pages of the policies were designated, and some of the pages designated are illegible. Moreover, regardless of this policy language, the City designated no evidence of a loss of use of property, personal injury, wrongful entry, or invasion of a premise.

      . In its Appellant’s Brief, the City also makes a brief argument differentiating between an insurance company's duty to defend and a duty to indemnify. See Appellant’s Br. p. 27. Again, it is difficult to address this argument given the lack of designated insurance policies. In general, an insurance company's duty to defend is broader than its duty to indemnify. Newnam, 871 N.E.2d at 401. However, where an insurer's independent investigation of the facts underlying a complaint against its insured reveals a claim patently outside of the risks covered by the policy, the insurer may properly refuse to defend. Id. "We determine the insurer's duty to defend from the allegations contained within the complaint and from those facts known or ascertainable by the insurer after reasonable investigation.” Id. If the pleadings reveal that a claim is clearly excluded under the policy, then no defense is required. Id. We addressed a similar argument in Newnam. Although the manufacturer argued that there was a possibility of coverage and, thus, there was a duty to defend, we disagreed. We concluded there was no duty to defend because the coverage sought related to future emissions rather than remediation of past pollution. Id. at 405. Similarly, here, there is no evidence that remediation of past pollution is required.

      . Based on arguments at oral argument, we clarify that this opinion should not be interpreted to preclude the City from making a claim on the policies if it is later required to perform remedial actions under the Consent Decree or if third patties make claims of property damage or personal injuries as a result of sewage contamination by the City.