Bowen v. Metropolitan Bd. of Zoning Appeals in Marion County, Division III

• Decision Date: 19 September 1974
• Docket Number: No. 2--1272A132,2--1272A132
• Citation: 161 Ind.App. 522,317 N.E.2d 193
• Parties: William C. BOWEN et al., Appellants, v. METROPOLITAN BOARD OF ZONING APPEALS IN MARION COUNTY, DIVISION III, consisting of Tom Swift, acting chairman, et al., Appellees.
• Court: Indiana Appellate Court

Page 193

317 N.E.2d 193

161 Ind.App. 522

William C. BOWEN et al., Appellants, v. METROPOLITAN BOARD OF ZONING APPEALS IN MARION COUNTY DIVISION III, consisting of Tom Swift, acting chairman, et al., Appellees.

No. 2--1272A132.

Court of Appeals of Indiana, Second District.

Sept. 19, 1974.

Rehearing Denied Nov. 4, 1974.

Ted B. Lewis, Terence L. Eads, Stewart Irwin, Gilliom, Fuller & Meyer, Indianapolis, for appellants.

David F. Rees, James A. Buck, Buck, Berry, Landau & Breunig, Indianapolis, for appellees.

WHITE, Judge.

The Board of Zoning Appeals (Board) granted a variance of use to appellee Burger Chef Systems, Inc. (Lessee) over the objection of appellants (Lessors) Bowen, Bowen, Eusey, and 'certain minors', who are heirs of Cornelius M. Bowen, deceased, who ten years earlier had demised the land to Lessee for a term of ninety-nine years. Lessors' objection was that their consent as 'owners' was necessary to give the Board jurisdiction to hear and determine the petition for the variance and that since they had not given it the Board had no jurisdiction. At no time have they objected or remonstrated on the ground that the use permitted by the variance would be injurious to their reversionary interest in the land, or in adjoining land, or that it would be injurious to the public interest.

Lessors petitioned the Superior Court for review of the Board's decision pursuant to the writ of certiorari procedure provided in the Metropolitan Plan Commission Act applicable to Marion County, specifically Ind.Ann.Stat. §§ 53--974 through 53--980 (Burns 1964 Repl., 1974 Supp.) IC 18--7--2--76 through 18--7--2--82. The writ was granted, the Board made its return, counsel for Lessors and for Lessee filed briefs and made oral argument, but the court heard no testimony and received no 'evidence' other than the Board's return. Therefore, if the court followed the statute (§ 53--979), it made 'its determination and render(ed) its judgment with reference to the legality of the decision of the board of zoning appeals on the facts set out in the return to the writ of certiorari', but as we shall see that was impossible because no finding of such facts was set out in the return. We therefore reverse with directions to the Superior Court to remand the case to the Board with directions to make special findings of fact on the issue raised by Lessors' objections and for further proceedings thereafter not inconsistent with this opinion. Easley v. Metropolitan Board of Zoning Appeals (1974), Ind.App., 317 N.E.2d 185, --- Ind.Dec. ---; Department of Financial Institutions of Indiana v. State Bank of Lizton (1969), 253 Ind. 172, 252 N.E.2d 248.

Not only did the Board fail to state the facts on which it based its decision, but many of the facts argued orally and in the briefs cannot be found in any of the 'evidence' in the record. Our statements of 'fact' are therefore merely recitals of what we understand the parties believe to be the facts (unless otherwise indicated).

Ten years before this matter came before the Board, Cornelius Bowen, now deceased, was the sole holder of the fee simple title to a tract of land on the north side of East Eighty-sixth Street in the Nora area of nothern Marion County. He demised it to appellee Burger Chef Systems, Inc. (Lessee) by a written lease for a term of ninety-nine years. Lessee is in possession of the leased premises and is operating a drive-in restaurant on part of the demised land while some of it north of the restaurant is vacant. On that unused land Lessee wishes to construct and operate a miniature golf course, but the zoning classification, although commercial, does not permit that use. Lessee, therefore, has filed a petition for a variance. The petition is typed on a form which gives the appearance of being the Board's required official form. The first line filled in thereon reads:

'Name of Petitioner(s) BURGER CHEF SYSTERMS, INC.'

'(Owner(s) of Property)'

Attached to the petition is a sheet which reads:

'CONSENT

'The undersigned, being the Lessee of a certain Land Lease on the property described on the attached Exhibit 'A', do hereby consent to the filing of a variance or rezoning petition in connection with such real estate by _ _.

'Dated this 14th day of April, 1971.

'BURGER CHEF SYSTEMS, INC.

BY: S. H. Price

S. H. Price, Exec. Vice Pres.'

Lessors' 'objection' was in the form of an unverified, written motion signed by an attorney at law on behalf of 'WILLIAM C. BOWEN, CHARLES A. BOWEN and HELEN M. BOWEN, and certain minors, ¹ all heirs of CORNELIUS M. BOWEN, Deceased' (our emphasis), which requested, inter alia, that the Board 'dismiss the request for lack of jurisdiction' for these reasons:

'1. That the aforesaid petitioners are the owners of the real estate which is the subject matter of this request for variance.

'2. That the petition for variance, filed with the Metropolitan Board of Zoning Appeals of Marion County, is signed by JAMES R. NICHOLS, with the consent of BURGER CHEF SYSTEMS, INC., as lessee.

'3. That the aforesaid owners of said real estate have not consented in writing or otherwise, and do not consent to said request for variance.

'4. That without the consent of the aforesaid owners, said petition for variance is a mere notice of intention to petition for variance and is of no force or effect, is not properly before this Board for hearing and this Board does not have jurisdiction to hear or act upon same.'

It appears from the shorthand reporter's transcript of the Board's hearing that 'all those who wish to speak in this case' were asked to 'remain standing and be sworn' and that 'all witnesses' were sworn. We assume (with little or no basis in the record for so doing) that among those sworn as witnesses were the attorneys for the parties, since all the 'facts' in the record relative to Lessors' motion to dismiss come from their mouths during their argument which was preceded by the Chairman's statement that '(w)e have been advised by our legal counsel we would like to hear both sides first, to settle your first argument.'

Lessors' attorney's argument and/or testimony before the Board was simply that the Board's rules require 'owners' to sign variance petitions or to give their consent; that Lessors are the owners and Lessees are not, and cannot be, 'owners'. Lessors have not signed or consented to the petition and the Board therefore has no jurisdiction. Lessee's attorney read parts of what he said was Paragraph 7 of the lease and contended that it gave consent to Lessees to apply for this variance. Lessors' attorney acknowledged that Lessee's attorney had correctly read from the lease but argued that it applied only to putting the drive-in restaurant on the property. A board member asked, '(w)hat does the original ² lease call for in terms of land use?' The answer, from Lessee's attorney was: 'That provision I read to you--'you will proceed to have the premises for a drive-in restaurant and other commercial purposes . . .'.'

That is the substance of all the 'evidence' before the Board (on this issue) insofar as is disclosed by the Board's return. And, as previously noted, no additional evidence was introduced in the Superior Court. Nevertheless, the parties have argued in their briefs before the Superior Court and in both their briefs and their oral arguments here many 'facts' which are not in evidence and are not facts of which either court can take judicial notice. The two principle sources to which those facts de hors the record are attributed are (1) the rules of the Board and (2) the ninety-nine year lease.

The parties probably assume that all courts take judicial notice of rules of administrative agencies. That is true only as to State administrative agencies and then only by reason of Ind.Ann.Stat. § 4--22--2--1 et seq. (Burns Code Ed., 1973). State ex rel. v. Wheaton (1923), 193 Ind. 30, 34, 138 N.E. 820; Buckinghouse v. Gregg (1862), 19 Ind. 401; Terre Haute Paper Co. v. Price (1943), 113 Ind.App. 578, 584, 47 N.E.2d 166.

On what theory the parties have assumed that this court, the certiorari court, and the Board could consider the provisions of the lease when it is not in evidence, we are unable to surmise and think it safe to say there is none.

Although we must rule that the Superior Court erred in reviewing the Board's decision in the absence of findings of fact by the Board specific enough to permit intelligent review, and must reverse and remand for the reasons we so recently stated in Easley v. Metropolitan Board of Zoning Appeals (1974), Ind.App., 317 N.E.2d 185, --- Ind.Dec. ---, we are nevertheless willing to state our views of the law in the bastract, and in relation to hypothetical facts, in the hope that a further appeal will thereby the rendered unnecessary.

The Indiana statutes which authorize boards of zoning appeals to grant variances make no mention of who may request a veriance. ³ However, it has been held that 'this State's rules of standing (Burns Indiana Statutes Anno. (1967 Repl.), § 2--201 et seq.) are applicable to administrative proceedings' and that persons without such standing cannot become parties to administrative proceedings. Insurance Commissioners of Indiana v. Mutual Medical Insurance, Inc. (1968), 251 Ind. 296, 301, 241 N.E.2d 56, 59; Bucur v. Inland Steel Company (1927), 86 Ind.App. 684, 158 N.E. 526. § 2--201 and Trial Rule 17(A), Indiana Rules of Procedure, which has replaced it, both require that: 'Every action shall be prosecuted in the name of the real party in interest.' It therefore follows that notwithstanding the variance statute's silence, an applicant for a variance must be one who has such an interest that he can qualify as the real party in interest. In other words, his pursuit of a variance must be in his own interest and not in the interest of another, to qualify him as the real party in interest. And, of course, that interest of his own must be a sufficient interest to give him...