Board of Zoning Appeals of City of Valparaiso v. Sink, 372A123

Decision Date09 August 1972
Docket NumberNo. 372A123,372A123
Citation285 N.E.2d 655,153 Ind.App. 1
PartiesBOARD of ZONING APPEALS OF the CITY OF VALPARAISO et al., Appellants (Respondents Below), v. Roberta K. SINK and Harry Sink, Appellees (Petitioners Below).
CourtIndiana Appellate Court

William H. Wagner, John E. Hughes of Chester, Clifford, Hoeppner & Houran, Valparaiso, for Linda Perez and another.

James S. Bozik of Blachly Tabor & Bozik, Valparaiso, for Valparaiso Board of Zoning Appeals.

Robert J. Walker, Chesterton, for appellees.

STATON, Judge.

STATEMENT ON APPEAL: Linda Perez and Rogelio M. Perez obtained two variances on separate occasions. Both variances were granted by the Board of Zoning Appeals so that a garage built in violation of the minimum six foot side yard requirements could remain on the Perez' premises. On the first occasion that the Perez' petition for a variance was granted, Roberta K. Sink and Harry Sink appealed the granting of the variance by the Board of Zoning Appeals to the Porter Superior Court. This was done by filing a writ of certiorari as provided by statute. The Porter Superior Court's judgment reversed the granting of the variance. This judgment was not appealed. On the second occasion, some five months later when the Perez' filed their petition for the same variance, they were again granted the variance by the Board of Zoning Appeals. Roberta K. Sink and Harry Sink did not follow the statutory remedy of writ of certiorari for a review as they had before to reverse the decision of the Board of Zoning Appeals. Instead, they filed a 'Verified Motion to Enforce Court Decree' in the Porter Superior Court. This motion was granted. It was founded upon the theory of res judicata. Linda Perez and Rogelio M. Perez filed their motion to correct errors which raises these fundamental questions:

1. Is a 'Verified Motion to Enforce Court Decree,' which relies upon the theory of res judicata, a collateral attack upon a Board of Zoning Appeals' decision and therefore, contrary to law?

2. Is the statutory remedy the exclusive remedy available to remonstrators who are seeking to reverse a decision of the Board of Zoning Appeals?

Our following opinion answers both questions in the affirmative.

STATEMENT OF FACTS: Linda Perez and Rogelio M. Perez had built a garage on their property at 2204 Fernhill Drive, Valparaiso, Indiana. Their property adjoins that of Roberta K. Sink and Harry Sink. A hearing was held before the Valparaiso Board of Zoning Appeals on November 23, 1970 upon a petition for a variance filed by Linda Perez and Rogelio M. Perez to allow them a variance from the six foot minimum side yard requirement and the twenty-five foot minimum front yard requirement of the zoning ordinance of the City of Valparaiso which their garage violated. This petition for variance was granted. Roberta K. Sink and Harry Sink appealed the Valparaiso Board of Zoning Appeals decision by filing their writ of certiorari as provided by I.C. 1971, 18--7--5--87; Ind.Ann.Stat. § 53--783 (Burns 1972 Supp.). The Porter Superior Court rendered the following judgment on April 23, 1971:

'Comes now the court, and in judgment taken under advisement herein, now finds that the plea of the petitioners herein, and the allegations contained therein are true; that the Board of Zoning Appeals acted contrary to law and their decision should be, and hereby is, reversed.

'It is therefore ordered, adjudged and decreed by the court that the decision of the Board of Zoning Appeals heretofore entered in this cause, is hereby reversed.'

This judgment rendered by the Porter Superior Court on April 23, 1971 was never appealed by Linda Perez and Rogelio M. Perez.

A second petition was filed with the Valparaiso Board of Zoning Appeals for the same variance on September 28, 1971. Roberta K. Sink and Harry Sink appeared at the hearing upon this petition and advised the Valparaiso Board of Zoning Appeals that it was bound by the final decree of the Porter Superior Court entered on April 23, 1971. The Board of Zoning Appeals granted the variance to Linda Perez and Rogelio M. Perez.

Instead of filing a writ of certiorari and following the statutory procedure for review, the Sinks filed a 'Verified Motion to Enforce Court Decree' with the Porter Superior Court on October 7, 1971. This motion prayed for the following relief:

'WHEREFORE, Plaintiffs move the Court to enter a supplemental order declaring that the action of the VALPARAISO BOARD OF ZONING APPEALS on September 28, 1971, is null and void and without any effect whatsoever, being res adjudicata and contrary to the final judgment and decree previously entered in this cause, and to restrain the VALPARAISO BOARD OF ZONING APPEALS from issuing any further variances to LINDA PEREZ and ROGELIO M. PEREZ, their successors and assigns, from the application of the front yard and side yard setback requirements of the Valparaiso Zoning Ordinance, and to mandate the Valparaiso Board of Zoning Appeals to enforce the Zoning Ordinance of Valparaiso as it applies to these violations without further delay and to take any and all other action necessary to compel compliance with the Ordinance, and any and all other relief necessary and proper in the circumstances.'

The Porter Superior Court sustained the Sinks' motion. Its judgment reads in part as follows:

'The defendants, Perezes further move the court to strike and dismiss Plaintiff's 'Verified Motion to Enforce Court Decree'. The court now rules on said motion as follows:

1. The statutory law on which this cause was based gave the Circuit Court authority to hear and decide appeals from Boards of Zoning Appeals. Inherent in that authority is the power to enforce its judgment should the lower body refuse to recognize it. To hold otherwise would be to nullify the entire proceeding.

2. The Court has continuing jurisdiction over the Parties and the initiations of an original (sic) and distinct cause is unnecessary.

3. This proceeding is directed to the Valparaiso Board of Zoning Appeals and notice to defendants Perez is not required.

4. The judgment of this court reversed the Board of Zoning Appeals' decision in the manner provided by Statute. The effect of this was that the variance was denied. The statutes under which the Board of Zoning Appeals Acts sets out the action they are obliged to take under such circumstances. The law contemplates such action. The judgment is not advisory or declaratory. It is mandatory.

5. This cause arises from the statutory procedure provided for appeals from the decision of the Board of Zoning Appeals.

6. The above findings point out that the motion does state a claim for relief. Defendants, Perezes, motion to strike and dismiss is overruled and dismissed in all specifications therein contained. We now come to the consideration of the merits of this motion to enforce the Court's decree.

'The transcript of proceedings filed by the Board of Zoning Appeals clearly shows the Board reheard the same issues on which this court originally entered judgment. Mr. Wagner stated this to be true in his opening statement to the board. An examination of this entire record shows the same discussions and considerations were had by the Board and the attorneys. Board member Laube asked for new facts to establish jurisdiction of the Board as a new cause. Mr. Bozik said new facts would be necessary but none were given, Mr. Wagner gave none and said none were necessary. Board member Laughery aptly stated the position and attitude of the Board when she said she had heard nothing new and had not changed her previous opinion. Regardless of the opinion of one Board Member or all of them, they were duty bound to follow the law and specifically the judgment of a reviewing court.

'The court now orders and directs the Valparaiso Board of Zoning Appeals to strike all proceedings had by it involving this matter and these parties subsequent to April 23, 1971, to deny the variance sought by Linda Perez and Rogelio M. Perez for front yard and side yard...

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9 cases
  • Carpenter v. Whitley County Plan Commission, 3-375A46
    • United States
    • Indiana Appellate Court
    • 6 October 1977
    ...of the parties, a matter which is finally determined should not be relitigated. See, Board of Zoning Appeals of City of Valparaiso v. Sink (1972), 153 Ind.App. 1, 285 N.E.2d 655. Cf. Annotation: 71 A.L.R.2d 1362, and Note, "Indiana Variance Proceedings and the Application of Res Judicata" 4......
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    ...Rule 8(c), an affirmative defense must be raised below to be preserved for appeal. Board of Zoning Appeals, City of Valparaiso v. Sink (1972), 153 Ind.App. 1, 8, 285 N.E.2d 655, 659. The Indiana Administrative Code (IAC) provides that these trial rules generally apply to administrative hear......
  • Hall v. Hall
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    ...other court, res judicata emanates from the final judgment and is the actual effect of a final judgment. See Board of Zoning Appeals v. Sink, 153 Ind.App. 1, 285 N.E.2d 655 (1972). It does not emanate from, nor is it directly related to, the inherent power a judicial tribunal possesses to e......
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    ...Fairness to the parties and economy of time are the cornerstones of this policy. Board of Zoning Appeals, City of Valparaiso v. Sink (1972), 153 Ind.App. 1, 285 N.E.2d 655, 658-659. Res judicata has been considered over the years as a defense which must be affirmatively pleaded before the s......
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