Burcham v. Metro. Bd. of Zoning Appeals

• Decision Date: 31 March 2008
• Docket Number: No. 49A05-0610-CV-594.,49A05-0610-CV-594.
• Citation: 883 N.E.2d 204
• Parties: Barbara BURCHAM, Christine Bait, and Crooked Creek Community Council, Inc., Appellants-Petitioners, v. METROPOLITAN BOARD OF ZONING APPEALS DIVISION I OF MARION COUNTY, Indiana, Joseph Stanley, Larry Warren, and Celebration Fireworks, Inc., Appellees-Respondents.
• Court: Indiana Appellate Court

883 N.E.2d 204

Barbara BURCHAM, Christine Bait, and Crooked Creek Community Council, Inc., Appellants-Petitioners, v. METROPOLITAN BOARD OF ZONING APPEALS DIVISION I OF MARION COUNTY, Indiana, Joseph Stanley, Larry Warren, and Celebration Fireworks, Inc., Appellees-Respondents.

No. 49A05-0610-CV-594.

Court of Appeals of Indiana.

March 31, 2008.

Karen Celestino-Horseman, Indianapolis, IN, Attorney for Crooked Creek Community Council, Inc.

Jon Laramore, Anne K. Ricchiuto, Baker & Daniels, LLP, Indianapolis, IN, Attorneys for Celebration Fireworks.

Ian L. Stewart, Office of Corporation Counsel, Indianapolis, IN, Attorney for Metropolitan Board of Zoning, Appeal Division I.

OPINION

MAY, Judge.

Crooked Creek Community Council, Inc., appeals the trial court's affirmation of a zoning variance¹ granted to Celebration Fireworks. On cross-appeal, Celebration and the Metropolitan Board of Zoning Appeals Division I of Marion County ("BZA") assert we should dismiss this appeal because Crooked Creek does not have standing to challenge a zoning variance. We hold the Appellees waived Crooked Creek's alleged lack of standing, the trial court did not commit reversible error when it declined Crooked Creek's request to submit additional evidence, the BZA had authority to modify its 2002 order, and the record supports the grant of the variance. Accordingly, we affirm.

FACTS AND PROCEDURAL HISTORY

Celebration began selling fireworks from a retail store at 5860 North Michigan Road in 1988. That area of Michigan Road is zoned C-3, a commercial area where firework sales are prohibited. In April of 2000, Celebration agreed it would no longer sell fireworks in areas zoned C-3 "unless said use is specifically permitted by a variance." (App. at 17.) In 2001, Celebration filed a variance petition with the BZA, requesting permission to sell fireworks at 5860 North Michigan Road. The petition was challenged by Crooked Creek, Barbara Burcham, and Christine Bait (collectively, "the Remonstrators"). In April of 2002, the BZA granted Celebration's petition in an order that included findings and conclusions provided by Celebration. The Remonstrators appealed the decision to the Marion County Superior Court, which affirmed the variance.

The Remonstrators appealed the trial court's order. We reversed the trial court's judgment because the BZA's first finding, regarding whether approval of the variance would be "injurious to the public health, safety, morals, and general welfare of the community," was unrelated to the evidence presented at the BZA hearing. Burcham, Bali and Crooked Creek Community Council, Inc. v. Bd. of Zoning Appeals, Div. 1, Marion County, In., Stanley, and Warren, No. 49A02-0303-CV-201, mem. op. at 10, 802 N.E.2d 62 (Ind.Ct.App. Dec. 31, 2003) (hereinafter, "Burcham 1"), reh'g denied, trans. denied. The BZA found "[t]he proposed use will not cause pollution, traffic congestion, unsanitary conditions or negatively impact drainage," id., while all the evidence submitted dealt with fire safety. We concluded:

In sum, there is no correlation between the evidence presented at the hearing and the Board's finding. We are, therefore, compelled to hold that the Board's finding under Indiana Code Section 36-7-4-918.4(1) does not rest upon a rational basis in that it is unsupported by the evidence in the record. Accordingly, we conclude that the Board abused its discretion when it granted Celebration Fireworks' petition for a variance of use, and we reverse the trial court's judgment affirming the Board's decision.

Id. at 11.

Celebration filed a petition for rehearing in which it requested we remand the case to the BZA for amendment of its first finding of fact, so that it would comport with the evidence submitted. We denied rehearing without clarification. Celebration then filed a petition to transfer, which included a request to remand the case back to the BZA for entry of a proper finding to support the variance. Our Indiana Supreme Court denied transfer.

One week later, on June 25, 2004, Celebration filed with the BZA a special request that it amend the first finding in its 2002 order to comport with the evidence presented regarding fire safety. The BZA's legal counsel responded on July 2, 2004, with a letter that indicated his belief that the decision from the Court of Appeals, without remand for correction of the first finding, was "final and complete. Consequently, the Board of Zoning Appeals lacks jurisdiction to take any further action.... "(App. at 231.)

In 2005, the Metropolitan Development Commission of Marion County filed an enforcement action against' Celebration to bring Celebration's business at 5860 North Michigan Road into compliance with its 3 zoning. In that action, Celebration requested a declaratory judgment regarding whether the BZA had jurisdiction to amend its 2002 findings after our decision. The trial court determined:

[T]he BZA has jurisdiction to consider Celebration's request to amend the Findings of Fact or in the alternative, consider Celebration's new variance petition, both filed with the Board on or about June 25, 2004, as a matter of law following reversal by the Indiana Court of Appeals without remand.

The Court further finds that it is wholly proper for Celebration to bring a new claim with the BZA, and that the Special Request and new variance petition are not barred by Art. VI, § 3(a) of the BZA's Rules of Procedure.

NOW THEREFORE, the Court ORDERS that the BZA conduct proceedings consistent with this Order.

(Id. at 248-49.) The Metropolitan Development Commission did not appeal that order. Because the Remonstrators were not parties to that action, they were not able to appeal that finding regarding jurisdiction.

On August 2, 2005, the BZA held a hearing to determine how it would proceed. Celebration and the Remonstrators provided legal arguments and presentations from appellate law experts regarding the effect of this Court's reversal without remand. Thereafter the BZA decided by a vote of 4-1 to modify the first finding of the 2002 order, rather than hear evidence regarding the new variance petition. The BZA entered the following order:

The Metropolitan Board of Zoning Appeals, Division 1 (the "Board"), having considered a Special Request to Correct and Amend Findings of Fact To Conform to and Reflect Evidence Presented which requests the Board to modify its previous findings of fact, adopted on April 9, 2002, to correct an error identified by the Court of Appeals, having reviewed the record of the previous proceedings of the Board (the "Record") and having heard argument with regard to the content of the Record, in particular with regard to fire safety, and concluding that the Board's written findings of fact on April 9, 2002, did not reflect the determination that the Board in fact reached regarding public safety concerns expressed by Remonstrators, the Board amended its Findings of Fact to read as follows:

1. THE GRANT WILL NOT BE INJURIOUS TO THE PUBLIC HEALTH, SAFETY, MORALS, AND GENERAL WELFARE OF THE COMMUNITY BECAUSE the proposed use, in compliance with Commitments approved by the Board, will not create an unreasonable fire hazard or other threat to public safety.

2. THE USE OR VALUE OF THE AREA ADJACENT TO THE PROPERTY INCLUDED IN THE VARIANCE WILL NOT BE AFFECTED IN A SUBSTANTIALLY ADVERSE MANNER BECAUSE the site has been developed for decades as a strip center for retail sales and this use allows for the center and parking areas to be maintained.

3. THE NEED FOR THE VARIANCE ARISES FROM SOME CONDITION PECULIAR TO THE PROPERTY INVOLVED AND THE CONDITION IS NOT DUE TO THE GENERAL CONDITION OF THE NEIGHBORHOOD BECAUSE due to the existing development and the sale of Class "C" fireworks, relief is warranted.

4. THE STRICT APPLICATION OF THE TERMS OF THE ZONING ORDINANCE CONSTITUTES AN UNUSUAL AND UNNECESSARY HARDSHIP IF APPLIED TO THE PROPERTY FOR WHICH THE VARIANCE IS SOUGHT BECAUSE without relief the site cannot be utilized or maintained.

5. THE GRANT DOES NOT INTERFERE SUBSTANTIALLY WITH THE COMPREHENSIVE PLAN BECAUSE there are no changes.

DECISION

IT IS THEREFORE the decision of this body that this VARIANCE petition is APPROVED.

(Id. at 326.)

The Remonstrators again filed a petition for writ of certiorari with the trial court. The trial court affirmed, finding the BZA had authority to modify its 2002 order and the Record supported the BZA's findings and grant of the variance. The Remonstrators appealed.

On appeal, Burcham and Bait asked to be voluntarily dismissed from the appeal, and we granted their requests. Celebration requested we remand the case to the trial court "for the limited purpose" of deciding whether Crooked Creek had standing to appeal. We denied Celebration's request for reasons we will explain herein. Celebration also requested oral argument, which we deny by separate order today.

DISCUSSION AND DECISION

1. Standing

Celebration and the BZA assert we should dismiss this appeal because Crooked Creek, as an association, does not have standing to maintain the appeal following the voluntary dismissal of the two individual Remonstrators. Because this issue was not raised until appeal, it has been waived. See Family Development, Ltd. v. Steuben County Waste Watchers, Inc., 749 N.E.2d 1243, 1254-256 (Ind.Ct. App.2001) ("Because FDL failed to challenge Waste Watchers' standing during the administrative proceedings, it; has waived this issue on appeal."), reh'g denied; State v. Friedel, 714 N.E.2d 1231, 1236 (Ind.Ct.App.1999) (holding State waived issue of standing by failing to raise it in the trial court).

To support its argument that standing can be raised on appeal when it was not raised before the trial court, Celebration cites Collard v. Enyeart, 718 N.E.2d 1156, 1159 (Ind.Ct.App.1999), trans. denied 735 N.E.2d 230 (Ind.2000). We decline Celebration's invitation to rely on Collard for the reasons explained in Family Development, 749...