Allen County, Ind. Bd. of Zoning Appeals v. Guiff

• Decision Date: 11 April 1990
• Docket Number: No. 02A03-8909-CV-388,02A03-8909-CV-388
• Citation: 552 N.E.2d 519
• Parties: The ALLEN COUNTY, INDIANA BOARD OF ZONING APPEALS, Marcus Brewer, Appellants (Respondents Below), v. Marsha L. GUIFF, Gerald L. Guiff, and Various Other Property Owners in Section 7, Township 32 N., Range 11 East Allen County, Indiana (Eel River Township) Appellees (Petitioners Below).
• Court: Indiana Appellate Court

Page 519

552 N.E.2d 519

The ALLEN COUNTY, INDIANA BOARD OF ZONING APPEALS, Marcus Brewer, Appellants (Respondents Below), v. Marsha L. GUIFF, Gerald L. Guiff, and Various Other Property Owners in Section 7, Township 32 N., Range 11 East Allen County, Indiana (Eel River Township) Appellees (Petitioners Below).

No. 02A03-8909-CV-388.

Court of Appeals of Indiana Third District.

April 11, 1990.

George Martin, Fort Wayne, for Marcus Brewer.

James A. Federoff, Fort Wayne, for Allen County Indiana Bd. of Zoning Appeals.

Daniel J. Borgmann, Helmke, Beams, Boyer & Wagner, Fort Wayne, for appellees.

STATON, Judge.

Marcus Brewer filed a petition with the Allen County Board of Zoning Appeals to establish a contingent use--a private airport. After the petition was granted, Marsha L. Guiff and Gerald L. Guiff petitioned the Allen Circuit Court for a judicial review of the Board's decision to grant Brewer's petition. Later, the Allen Circuit Court granted the Guiffs' motion for summary judgment.

Brewer and the Board are bringing this appeal which presents the following issue:

Whether the trial court erred in determining that Guiff had met the jurisdictional prerequisites mandatory to obtaining judicial review of a decision of a board of zoning appeals?

We reverse.

On January 8, 1988, Guiff filed a petition for writ of certiorari in the Allen Circuit Court seeking judicial review of the Board's decision regarding Contingent Use 164. Notice of the petition was served on Brewer, the Chairman of the Allen County Board of Zoning Appeals, and the Lincoln National Bank and Trust Company (record title holder of interest in the subject real estate at that time). In addition, George Martin, attorney of record for Brewer, received by mail a courtesy copy of the petition for writ of certiorari served directly on Brewer. Notice was not served on two parties who appeared at the public hearing and who spoke in favor of granting Contingent Use 164, namely Edward Nix and William Poorman.

On February 23, 1988, the Board filed a motion to dismiss and motion for summary judgment alleging that Guiff committed fatal jurisdictional mistakes in failing to serve notice on two adverse parties and failing to serve notice on Brewer's attorney of record. Three days later, Brewer filed a motion to dismiss for want of jurisdiction based on the same allegations. An evidentiary hearing was held with respect to these motions; all were denied.

Thereafter, Guiff filed a proposed Writ of Certiorari, a proposed order for writ of certiorari and a motion for summary judgment. Brewer countered with a motion for summary judgment based upon the same jurisdictional flaws alleged in his motion to dismiss. After denying Brewer's motion for summary judgment and Guiff's proposed writ of certiorari and proposed order for writ of certiorari, the trial court entered summary judgment in favor of Guiff. In entering summary judgment, the trial court reversed the Board's decision to grant Contingent Use 164 and remanded the matter to the Board for further consideration.

The Board ¹ first contends that the trial court erred in determining that it had jurisdiction to entertain the instant cause of action. The Board cites numerous instances of error allegedly committed by Guiff, all of which focus on the mandatory jurisdictional requirements of West's AIC 36-7-4-1005(a). Because we conclude that the Board has waived one of these specifications of error, ² and because several specifications of error are premised on mistaken omissions in the transcript which have been rectified, ³ we limit our discussion to the questions raised concerning Guiff's alleged failure to properly serve notice on Poorman, Nix and Martin.

IC 36-7-4-1005(a) reads, in salient portion:

On filing a petition for a writ of certiorari with the clerk of the court, the petitioner shall have a notice served by the sheriff of the county on each adverse party, as shown by the record of the appeal in the office of the board of zoning appeals. An adverse party is any property owner who the record of the board of zoning appeals shows had appeared at the hearing before the board in opposition to the petitioner ... Notice to the other persons named is not required. The notice must state:

(1) that a petition for a writ of certiorari, asking for a review of the decision of the board of zoning appeals, has been filed in the court;

(2) the premises affected; and

(3) the date of the decision.

The service of the writ of certiorari by the sheriff on the chairman or secretary of the board of zoning appeals constitutes notice to the board, to the municipality or county, and to any municipal or county official or board charged with the enforcement of the zoning ordinance. No further summons or notice regarding the filing of the petition is necessary.

Strict compliance with this statutory procedure is required to obtain review by certiorari of a decision of a board of zoning appeals. Minton v. State (1976), 169 Ind.App. 584, 349 N.E.2d 741, 743. A failure to comply with the statute is jurisdictional and requires dismissal of the action. Ballman v. Duffecy, supra.

The Board first contends that Guiff's failure to serve notice on Poorman constituted a violation of that portion of IC 36-7-4-1005(a) which requires service of notice on each adverse party. Guiff concedes that Poorman spoke at the public hearing in favor of granting Contingent Use 164. Guiff also concedes that he failed to serve notice on Poorman. However, Guiff contends that he nonetheless served proper notice on each party who was a "property owner who the record of the Board of Zoning Appeals shows had appeared at the hearing in opposition to the petitioner."

Guiff argues that the record kept by the Board regarding Contingent Use 164 did not contain Poorman's correct name or address, thus making it impossible for him to meet the notice requirements of IC 36-7-4-1005(a). Guiff urges that, if the record of the Board does not contain the correct name or address of an adverse party, the petitioner for writ of certiorari should not suffer the consequence of dismissal for want of jurisdiction. We agree that there is certain basic information which must be made available to a petitioner for writ of certiorari through a board of zoning appeals for the purpose of meeting the jurisdictional requirements of IC 36-7-4-1005(a). However, we also consider that the petitioner for writ of certiorari must take certain actions to insure that his petition for writ of certiorari is brought within the confines of the jurisdictional statutes to the best of his abilities.

Our legislature has made it clear that the adverse parties described in IC 36-7-4-1005(a) are necessary and indispensable to proceedings for judicial review of zoning board decisions. See Minton, supra; Favourite v. County of Steuben Board of Zoning Appeals (1987), Ind.App., 515 N.E.2d 560, trans. denied. It has also long since been established that strict compliance with IC 36-7-4-1005(a) is required for a party to avail himself of the benefits conferred by the statutes governing review of zoning board decisions. See Ballman v. Duffecy, supra; State v. Marion Superior Court, Room I, supra.

We do consider that circumstances may arise which make it impossible to meet the "notice to adverse parties" requirement of IC 36-7-4-1005(a). However, we also consider that it is the burden of the petitioner to prove that such is the case where a board of zoning appeals has established that its records show the existence of an adverse party who was not served with notice of the petition for writ of certiorari. ⁴

The question is: how far must a petitioner for writ of certiorari go to ensure that all adverse parties are identified and served with notice? Certainly, where a petitioner is apprised by a portion of a board of zoning appeals' record that an uncertainty exists regarding the identity or address of a person who otherwise qualifies as an adverse party, a reasonable attempt must be made to identify and locate that person. A petitioner for writ of certiorari cannot simply ignore the existence of an adverse party in light of that party's interest in the outcome of such proceedings.

We conclude that, after a board of zoning appeals has met its burden of proving that a person meeting the definition of an adverse party was not served with notice of a petition for writ of certiorari, the petitioner must show by affidavit that he made a reasonable inquiry into the identity and location of that party. He must also show that said inquiry failed to produce the information necessary for him to meet the notice requirements of IC 36-7-4-1005(a). Of course, what constitutes a "reasonable inquiry" varies on a case-by-case basis. However, an examination of the record itself, which includes listening to any audio recordings if necessary, is required. If this examination fails to clarify the existence or identity of questioned parties, then the petitioner for writ of certiorari must request clarification from the clerk charged with maintaining the board of zoning appeals' records. If a question remains regarding the identity or locale of a person who spoke against the petitioner at the public hearing, then he must request the assistance of the opposing party or his attorney. If the opposing party or his attorney cannot produce the name and address of the adverse party in question within the necessary time frame for that party to be served with notice, then the petitioner for writ of certiorari has met his burden of serving notice on "any property owner who the record of the board of zoning appeals shows had appeared at the hearing before the board in opposition to the petitioner." If the opposing party possesses information regarding the identity or whereabouts of an adverse party but refuses to tender the information to the petitioner, then the opposing party waives his right to seek dismissal for failure to serve the...