Bagnall v. Town of Beverly Shores

• Decision Date: 30 March 2000
• Docket Number: No. 64S05-9909-CV-499.,64S05-9909-CV-499.
• Parties: George C. BAGNALL and Ann H. Bagnall, Appellants (Plaintiffs below), v. TOWN OF BEVERLY SHORES, Indiana; The Board of Zoning Appeals of the Town of Beverly Shores, Indiana; and Mary Fulgum, Phillip Dickerman, Michael Pavel, Patrick Wagner, and George Stefanek, In Their Capacity as Members of the Board of Zoning Appeals of the Town of Beverly Shores, Indiana, Appellees (Defendants below), and Michael Pavel and Deborah Pavel, Appellees (Intervenors below).
• Court: Indiana Supreme Court

726 N.E.2d 782

George C. BAGNALL and Ann H. Bagnall, Appellants (Plaintiffs below),
v.
TOWN OF BEVERLY SHORES, Indiana; The Board of Zoning Appeals of the Town of Beverly Shores, Indiana; and Mary Fulgum, Phillip Dickerman, Michael Pavel, Patrick Wagner, and George Stefanek, In Their Capacity as Members of the Board of Zoning Appeals of the Town of Beverly Shores, Indiana, Appellees (Defendants below), and
Michael Pavel and Deborah Pavel, Appellees (Intervenors below)

No. 64S05-9909-CV-499.

Supreme Court of Indiana.

March 30, 2000.

726 N.E.2d 783

George C. Bagnall, Appellant, Beverly Shores, Indiana, Pro Se

Jo Angela Woods, Indiana Municipal Lawyers Association, Inc., Indianapolis, Indiana, Attorney for Amicus Curiae.

Jeffrey F. Gunning, Pinkerton & Friedman, P.C., Munster, Indiana, Attorney for Appellee.

Terry Hiestand, Chesterton, Indiana, Attorney for Appellees/Intervenors.

ON PETITION TO TRANSFER

SULLIVAN, Justice.

The Bagnalls filed three petitions seeking court review of zoning variance grants to neighboring property owners by the local zoning board. Finding that the Bagnalls did not properly notify all adverse parties in accordance with the state zoning law, we affirm the trial court's grant of summary judgment to the Board with respect to two of the petitions. We affirm the trial court's dismissal of the third petition because the Bagnalls lack standing as aggrieved parties, but reverse the trial court's assessment of attorneys' fees against the Bagnalls.

Background

Michael and Deborah Pavel apparently owned or had a financial interest in Lots Six (6) and Eleven (11) located on Lakefront Drive in the Town of Beverly Shores.¹ George and Ann Bagnall own Lot Seven (7), which is three lots or approximately 150 feet from the Pavels' Lot 11. Sometime prior to May 2, 1996, Michael Pavel submitted two petitions to the Board of Zoning Appeals of the Town of Beverly Shores ("Board") concerning Lot 6—one seeking a variance from an ordinance so that the Pavels could construct an addition to the home located on the lot and the other seeking a variance from an ordinance regarding well location and setback requirements. Sometime prior to June 6,

726 N.E.2d 784

1996, Michael Pavel and Diane Hale jointly submitted a third petition to the Board requesting a variance from a setback ordinance governing Lot 11

The Board conducted a series of public hearings at which people spoke both in favor of and in opposition to the variance petitions. On May 2, 1996, the Board unanimously granted Michael Pavel's petition to construct an addition to the Pavel home located on Lot 6² ("variance number one"); on June 6, 1996, the Board unanimously granted his petition for a setback requirement variance on Lot 11³ ("variance number two"); and on August 1, 1996, the Board unanimously granted Pavel's petition regarding a well location on Lot 6⁴ ("variance number three").

Upon the granting of each variance, the Bagnalls filed with the trial court a timely petition for writ of certiorari. In each petition, the Bagnalls named as party defendants the Town of Beverly Shores, the Board, and the Board members in their official capacities. Michael Pavel was named as a party defendant in his capacity as a member of the Board, but the petitions did not name Deborah Pavel or Michael Pavel as party defendants in their capacity as landowners of the properties subject to the petitions. The Bagnalls sent notices of their petitions to each party named as a defendant in the petition.

The Board filed a motion to dismiss each petition. The motions to dismiss regarding variance numbers one and three contended that the Bagnalls failed to satisfy the jurisdictional requirement of providing statutory notice to adverse parties. The motion to dismiss regarding variance number two (a) contended that the Bagnalls lacked standing because they were not aggrieved parties and (b) requested attorneys' fees. The Pavels also filed a motion to dismiss each of the Bagnalls' petitions on the ground that the petitions did not designate the Pavels as party defendants.⁵ In apparent response to the Board's statutory notice assertions in its motions to dismiss, the Bagnalls later served notices on Thomas Oberle, Arlene Beglin, and William Kollada, all people who spoke or submitted letters supporting the Pavel variance requests at the public hearings. The Bagnalls did not serve notice on Deborah Pavel.

The trial court conducted a hearing and entered judgment granting all three motions to dismiss and awarding attorneys' fees to the Town of Beverly Shores with respect to the variance number two petition. The Bagnalls appealed. A divided panel of the Court of Appeals reversed the trial court's judgments regarding notice and the Bagnalls' aggrieved party status and remanded the case for further proceedings to determine whether Deborah Pavel was an adverse party to each appeal such that the Bagnalls had to file a notice to her with the clerk.⁶ See Bagnall v. Town of Beverly Shores, 705 N.E.2d 213, 219 (Ind.Ct.App.1999).

Discussion

I

The Bagnalls first contend that the trial court erred in dismissing their variance number one and variance number three petitions. The Bagnalls assert that their failure to file notice to Oberle, Beglin, and Kollada with the clerk of the court, concurrent with filing the writ petition, does not constitute a violation of the portion of Ind.

726 N.E.2d 785

Code § 36-7-4-1005(a) (Supp.1995) that requires...