Boffo v. Boone County Bd. of Zoning Appeals

• Citation: 421 N.E.2d 1119
• Decision Date: 15 June 1981
• Docket Number: No. 1-780A199,1-780A199
• Parties: Homer and Bertha BOFFO, Stacey and Pearl Cox, Carlton and Leora Hutton, C. Harvey and Mary Jo Bradley, Ira Jennings, Benny and Doris Wilson, and Northview Christian Church, Petitioners-Appellants, v. The BOONE COUNTY BOARD OF ZONING APPEALS, Jonathan W. Bankert, Joan Adams, Virgil Moore, and June Cooper, Respondents-Appellees.
• Court: Court of Appeals of Indiana

Page 1119

421 N.E.2d 1119

Homer and Bertha BOFFO, Stacey and Pearl Cox, Carlton and

Leora Hutton, C. Harvey and Mary Jo Bradley, Ira

Jennings, Benny and Doris Wilson, and Northview Christian Church, Petitioners-Appellants, v. The BOONE COUNTY BOARD OF ZONING APPEALS, Jonathan W.

Bankert, Joan Adams, Virgil Moore, and June

Cooper, Respondents-Appellees.

No. 1-780A199.

Court of Appeals of Indiana, First District.

June 15, 1981.

Charles L. Whistler, Lewis D. Beckwith, John B. Swarbrick, Baker & Daniels, Indianapolis, H. Roy Martin, Martin, Wharry & Pedersen, Lebanon, for petitioners-appellants.

Halbert W. Kunz, William A. Waddick, Kunz & Kunz, Indianapolis, Michael J. Andreoli, Donaldson & Andreoli, Warren D. Krebs, Parr, Richey, Obremskey & Morton, Lebanon, for respondents-appellees.

RATLIFF, Judge.

STATEMENT OF THE CASE

Homer and Bertha Boffo, together with nine other landowners of Boone County and the Northview Christian Church (hereinafter, Boffos), appeal from a judgment of the Boone Circuit Court affirming a ruling of the Boone County Board of Zoning Appeals (Board) which granted a special exception to Jonathan W. Bankert, permitting him to expand a legally established landfill operation to adjacent properties. We affirm.

FACTS

On September 28, 1977, the Board voted three to two to grant a special exception ¹ for a landfill operation to Bankert, an exception they had denied him on March 30, 1977. The Board stated that sufficient changes of circumstances had occurred since March to permit the reconsideration and subsequent granting of such special exception, though they set forth no specific facts to support either this conclusion or the grant in general in September 1977. This case was appealed to the Boone Circuit Court on a writ of certiorari, and the trial court affirmed the Board's ruling. Upon appeal to this court, the judgment of the trial court was reversed, and the case was remanded to the trial court. A petition to transfer filed with the Indiana Supreme Court was denied on July 5, 1979. The trial court subsequently remanded this cause to the Board for specific findings of fact which the Board then made. Once again in reviewing the Board's action upon a writ of certiorari the trial court approved the grant in a lengthy and detailed entry. Boffos launch the current appeal therefrom.

ISSUES

The issues presented by Boffos for our review are the following:

1. Was the Board's purported approval of a special exception authorizing the use of certain property as a landfill barred by res judicata in light of the Board's previous denial of the same special exception?

2. Could the Board, as a matter of law, approve a special exception authorizing the use of certain property as a landfill even though each of a majority of its members had found that one or more of the conditions necessary under the Boone County zoning ordinance in order to grant an exception had not been met?

3. Was a closed-door "executive session" of the Board exempt from the statutory prohibition of nonpublic meetings in the Indiana Open Door Law as a session to discuss litigation strategy, or did such executive session constitute a violation of the Open Door Law?

4. Did the Board violate Indiana zoning statutes, the Boone County Zoning Ordinance, and the due process clauses of the United States and Indiana constitutions by refusing the appellants an opportunity to argue their case or to present evidence upon remand?

5. Did the lower court err in finding that the remonstrators lack standing in this case because their supplemental verified petition for writ of certiorari failed properly to allege that they are aggrieved?

DISCUSSION

Issue I

Boffos argue that the Board's approval of a special exception authorizing the use of certain property as a sanitary landfill was barred by res judicata in light of the Board's previous denial of the same special exception. The Board and Bankert contend that sufficient changes had been shown to overcome any defense in the nature of res judicata.

Boffos correctly note that Bankert's first petition for a special exception permit to use the subject property for purposes of a landfill operation was rejected on March 30, 1977, by the Board. At that time the Board made no specific findings of fact to support its decision. When the Board reconsidered Bankert's petition on September 28, 1977, however, the Board found, in response to Boffo's raising the res judicata issue, that there had been a change in circumstances. Thus, the Board reheard Bankert's petition and voted to grant the special exception permit. After remand from this court the Board found the following specific facts:

"Now in support of the above finding the Boone County Board of Zoning Appeals further finds more particularly with respect to the issue of change of circumstance, that the Petitioner since March 30, 1977, has erected a large earthen mound along the northern perimeter of his real estate to block the view of the sanitary landfill operation from the church as well as other residents along Taylor Avenue; that Petitioner has graded the western slope of the completed landfill, constructed a collecting pond and has built and placed in use portable backstop type fences and snow fences to prevent blowing of paper."

Record at 721.

Boffos state first that the evidence does not support the findings because a collecting pond already existed and the fences to prevent the blowing of paper away from the landfill site were planned and promised by Bankert at the time of the March hearing. Additionally, Boffos contend that neither the large earthen mound nor the grading of the western slope of the property currently used as a landfill site is a material change with respect to the thirty-two acres for which the exception is sought. Boffos argue that "these changes do little more than provide some small hope that Bankert's already existing landfill operation will be less substandard in the future." Appellant's Brief at 43. Second, Boffos assert that the Board was precluded from making such findings of changed circumstances under this court's ruling in Easley v. Metropolitan Board of Zoning Appeals of Marion Co., (1974) 161 Ind.App. 501, 317 N.E.2d 185, trans. denied (1975), because the Board failed to find specific facts to support its March 30, 1977, denial. Boffos contend that according to Easley, their only obligation was to raise the defense in the nature of res judicata ² and that then it was up to Bankert to prove, and the Board to find, a change in conditions or circumstances upon which the Board had premised its earlier denial. Absent specific findings made upon the denial of the special exception, Boffos argue, this court has nothing to review in order to ascertain that the Board's determination of changed circumstances was supported by the evidence. Based on language in Easley, Boffos contend that Bankert was responsible for the Board's failure to make such findings in March and therefore should have to suffer the consequences of having his petition dismissed upon the raising of the defense of res judicata.

We agree with Boffos that Easley stands for the proposition that a board of zoning appeals must make specific findings when it denies a petition for a variance. Nevertheless, we note that Easley was a case dealing with the denial and subsequent granting of a variance while this case involves the denial and granting of a special exception. There are significant substantive, if not procedural, distinctions between a variance and a special exception. In the context of most zoning ordinances, and specifically in the Boone County Zoning Ordinance under consideration here, a variance involves a deviation or change from the legislated zoning classification applicable to a certain piece of property; a special exception, on the other hand, involves a use which is permitted in the given zoning classification once certain statutory criteria have been found by the Board to exist. Unlike the granting of a variance which has been described as discretionary with the Board upon the finding of the statutory criteria, the granting of the special exception has been described as mandatory upon the finding of compliance with the statutory criteria set forth in the ordinance. See, e. g., 3 A. H. Rathkopf, The Law of Zoning and Planning, § 41.10 (1980); 3 E. C. Yokley, Zoning Law and Practice, § 20-4 (1979); 8A E. McQuillin, The Law of Municipal Corporations § 25.160 (1976); 82 Am.Jur.2d Zoning and Planning § 283 (1976). In the words of Rathkopf, a variance and exception can be distinguished as follows:

"This distinction between a use variance, which depends upon a finding of the existence of unnecessary hardships in the application of the ordinance to a particular piece of property by reason of conditions unique to that property, and an exception, which requires no such finding, but only a finding that the conditions stated in the ordinance have been met, further emphasizes the nature of a special exception or conditional use. The inclusion of the particular use in the ordinance as one which is permitted under certain conditions, is equivalent to a legislative finding that the prescribed use is one which is in harmony with the other uses permitted in the district, and, while a variance can be granted only with respect to a particular property as to which unnecessary hardship is found, the special exception permit must be granted to any and all property which meets the conditions specified." (Footnotes omitted.)

3 Rathkopf, supra, at 41-19, 20. Thus, it has been said that "(s)tandards or criteria for the issuance of special permits (or exceptions) are usually less stringent than in the case of variances," 82 Am.Jur.2d, supra, at 832, and "(s)ince the exception bears legislative sanction ... the burden of the applicant is much lighter than it would be if he sought a use variance." 3 Yokley, supra, § 20-1 at 219-20. See also, 3 Rathkopf, ...