Board of Zoning Appeals v. Elkins, 53A01-9508-CV-263

• Court: Indiana Appellate Court
• Writing for the Court: ROBERTSON
• Citation: Board of Zoning Appeals v. Elkins, 659 N.E.2d 681 (Ind. App. 1996)
• Decision Date: 05 January 1996
• Docket Number: No. 53A01-9508-CV-263,53A01-9508-CV-263
• Parties: BOARD OF ZONING APPEALS, Bloomington, Indiana, Appellant-Respondent, v. Terry ELKINS, Appellee-Petitioner.

Page 681

659 N.E.2d 681

BOARD OF ZONING APPEALS, Bloomington, Indiana, Appellant-Respondent, v. Terry ELKINS, Appellee-Petitioner.

No. 53A01-9508-CV-263.

Court of Appeals of Indiana.

Jan. 5, 1996.

Rehearing Denied March 15, 1996.

Linda Runkle, Susan G. Montgomery, Bloomington, for appellant.

Thomas A. Berry, Thomas A. Berry & Associates, Bloomington, for appellee.

OPINION

ROBERTSON, Judge.

The Board of Zoning Appeals of Bloomington, Indiana [BZA] appeals the trial court's decision on writ of certiorari review to reinstate a building permit which the BZA had revoked with respect to a parcel of property owned by Terry Elkins. The BZA raises three issues on appeal, which we restate and consolidate into two, neither of which constitutes reversible error.

FACTS

The operative facts are not disputed. Terry Elkins owned a parcel of real estate comprised of the southern ends (approximately 1/2) of two lots, Lots 50 and 51, in a longstanding housing division within the City of Bloomington. The parcel of land straddling the two lots had existed for many years. A house had been built on Elkins' portion of Lot 50 but Elkins' portion of Lot 51 had never been developed. By deed, Elkins divided his portion of Lot 50 from Lot 51 in order to build a house on Lot 51. On May 18, 1994, Elkins applied for, and was granted, a building permit to construct a home on Lot 51.

On May 31, 1994, the owner of a parcel of property adjoining Lot 51 filed an appeal alleging that the BZA's administrative decision to issue the building permit was illegal based on various violations of the zoning ordinance. The property owner's primary concern was that he did not wish for a home to be built on Lot 51 because it would be close to his home. After an investigation, the Code Enforcement Manager issued a "stop work" order. Elkins remedied all the problems that had caused him to be in noncompliance with the zoning ordinance. The BZA permitted Elkins to resume construction of the new home.

The citizen prosecuted his appeal of the decision to grant the building permit. On June 16, 1994, the BZA held a hearing on the appeal. At this hearing the City Planning Director advised the BZA that Lot 51 was not a "lot of record" and was therefore could not be developed. Due to insufficient time, the hearing was continued to July 14, 1995. At that meeting, the BZA found that Elkins had satisfied all the original problems raised. Nevertheless, the BZA determined that the building permit had been erroneously issued because "based on the deeds presented, site was not a lot of record ..." The BZA ordered Elkins to quit construction and return the property to its original condition.

On August 12, 1994, Elkins filed the present petition for writ of certiorari review alleging, among other concerns, that the denial of the permit on the basis that the site was not a "lot of record" was a mere pretext for revoking his building permit. The petition was served to the office of the City of Bloomington Planning Department and left with an employee. On September 1, 1994, the BZA filed a motion alleging that service of process had not been properly perfected and that, therefore, the trial court lacked jurisdiction of the case. On September 16 and 19, Elkins had the chairperson and the secretary of the BZA served with alias summonses.

On October 28, 1994, Elkins filed a motion requesting the Court to order the BZA to enter findings of fact upon which the appeal could be reviewed. The trial court granted the motion and ultimately, the BZA entered the following finding:

It is the finding of the Board that the permit was not properly issued, because based on the deeds presented the lot is not a single lot of record.

On May 30, 1995, the trial court entered the present order appealed from, finding that the findings submitted by the BZA were inadequate to conduct a proper review and that the BZA's decision to revoke Elkins' building permit was arbitrary, capricious, and contrary to law.

The home on Elkins' portion of Lot 51 has been completed and occupied. The BZA asserts that the trial court erred in reversing its decision and should have remanded the case yet again to give it another chance to make findings. The BZA requests that its decision be reinstated so that it can order Elkins to dismantle the home and return the lot to its original condition.

Additional facts are supplied as necessary.

DECISION

I.

The BZA asserts that the trial court should have dismissed Elkins' petition due to his failure to provide service as required by statute. The BZA argues that Elkins was required to have the sheriff serve the chairman or secretary of the BZA within thirty days of the BZA's decision and the failure to do so was fatal to the trial court's assumption of jurisdiction in the case.

Indiana Code 36-7-4-1003(b) requires that a petition for writ of certiorari review be filed with the court with thirty (30) days after the entry of the BZA decision to be challenged. Indiana Code 36-7-4-1005(a) reads:

On filing a petition for a writ of...