Downing v. Board of Zoning Appeals of Whitley County

• Decision Date: 08 November 1971
• Docket Number: No. 1,No. 171A5,171A5,1
• Parties: Carl F. DOWNING et al., Plaintiffs-Appellants, v. BOARD OF ZONING APPEALS OF WHITLEY COUNTY, Indiana, et al., Defendants-Appellees
• Court: Indiana Appellate Court

Page 542

274 N.E.2d 542

149 Ind.App. 687

Carl F. DOWNING et al., Plaintiffs-Appellants, v. BOARD OF ZONING APPEALS OF WHITLEY COUNTY, Indiana, et al Defendants-Appellees.

No. 171A5.

Appellate Court of Indiana, Division No. 1.

Nov. 8, 1971.

William D. Swift, Higgins & Swift, Fort Wayne, for appellants.

John W. Whiteleather, Jr., Whiteleather & Whiteleather, Columbia City, for appellees.

BUCHANAN, Judge.

STATEMENT OF THE CASE AND FACTS--This is an appeal from the Whitley County Circuit Court which upheld a decision of the Board of Zoning Appeals of Whitley County granting a preliminary approval of an application for a special exception.

Defendants-appellees, Norman and Priscilla Smith, were the owners of approximately 34.3 acres of land lying north of U.S. Highway 30 in Whitley County, Indiana. This real estate was the subject of an agreement to purchase by defendant-appellee, Columbia East, Inc. (Columbia East), for development as a mobile home park.

Columbia East filed an application for a special exception and an application for variance from the A--1 Agricultural classification of this land. The Whitley County Zoning Ordinance provides that mobile home parks may be located in an A--1 Agricultural District if a special exception is granted by the Board of Zoning Appeals (the Board).

The application presented by Columbia East included only the real estate located north of U.S. Highway 30 and did not include the land south of Highway 30, which was intended to be used for location of a sewage treatment plant to serve the mobile home park. The Whitley County Zoning Ordinance requires that sewage treatment plants must also obtain a special exception.

After consideration of all the information and evidence presented, it was announced by the Board at the hearing held March 31, 1970, that a yes vote would indicate preliminary approval only, and after the plans and specifications for the development of the proposed mobile home court had been completed and approved by the appropriate agencies, they have to be returned to the Board of Zoning Appeals for final approval. (Tr. p. 63, lines 15--18.) The Board then voted in favor of the applicants and granted a preliminary approval subject to the announced conditions.

Plaintiffs-appellants, Carl F. Downing et al. (Downing), owners of real estate in the area, appealed by filing a Writ of Certiorari in the Whitley Circuit Court. The Writ was granted and the court found that the decision of the Board was lawful. Downing's subsequent Motion to Correct Errors was overruled.

ISSUE--The issue presented for review is whether the decision of the Whitley County Board of Zoning Appeals to issue a preliminary special exception was lawful and if so, whether it is reviewable as a final decision.

Downing contends, and assigns as error, that the Board of Zoning Appeals' decision was an abuse of discretion because the preliminary special exception was granted without a provision for sewage treatment; that the County Commissioners intended that no exception could be granted until the County Subdivision Control Ordinance was enacted; that there was no showing of compliance with the County Zoning Ordinance; and that the Board arbitrarily issued its approval.

The Board contends that Downing's appeal is premature as the conditional approval granted was preliminary and not final.

Downing's Motion to Correct Errors presupposes a final order. Unless a final order is established, the Motion need not be discussed.

DECISION-- It is our opinion that the action taken by the Board was simply a preliminary order, lacking the necessary element of finality, and is not judicially reviewable.

Although there is no Indiana authority on the exact issue before us, federal case law is extensive.

Courts are reluctant to review interim steps of an administrative body which are not, or have not become final. Rochester Telephone Corp. v. United States (1939) 307 U.S. 125, 59 S.Ct. 754, 83 L.Ed. 1147; Houk v. Beckley (1955) 161 Neb. 143, 72 N.W.2d 664; 73 C.J.S. Public Administrative Bodies §§ 186, 189. Such review would only delay the administrative process, thereby rendering administative authority ineffectual.

For a decision of a board of zoning appeals to be judicially reviewable, it 'must have an element of finality to it and must be a completed action in the matter under consideration. In addition, it is necessary that all proper procedural steps be taken in connection with the appeal * * *' 2 Yokley, Zoning Law and Practice 359, § 18--6 (3d ed. 1965).

'Final order' means an order ending the proceedings, leaving nothing further to be accomplished. Noeding Trucking Co. v. United States (D.C.1939) 29 F.Supp. 537. Consequently, an order is not final if the rights of a party involved remain undetermined or if the matter is retained for further action. Houk v. Beckley, supra. Generally, judicial review is denied for lack of finality if an action by an administrative agency is only anticipated. Review will also be denied when action has been taken if the matter is still pending final disposition of interim steps. Boston & Maine R.R.Co. v. United States (1958) 358 U.S. 68, 79 S.Ct. 107, 3 L.Ed.2d 34; Delaware & Hudson Co. v. United States (1924) 266 U.S. 438, 45 S.Ct. 153, 69 L.Ed. 369.

The decision must impose an obligation or deny a right as a consummation of the administrative process. C. & S. Air Lines v. Waterman Corp. (1948) 333 U.S. 103, 68 S.Ct. 431, 92 L.Ed. 568.

The Indiana statutory provision controlling this matter allows review by certiorari of '(e)very decision of the board of zoning appeals * * *' Ind.Ann.Stat. § 53--783, IC 1971, 18--7--5--87 (1964 Repl.). When considering similar language in the Administrative Adjudication Act of Indiana, Ind.Ann.Stat. §...