Elmore v. City of Sullivan
| Decision Date | 13 September 1978 |
| Docket Number | No. 1-178A14,1-178A14 |
| Citation | 177 Ind.App. 495,380 N.E.2d 108 |
| Parties | Morris J. ELMORE, Darhis Elmore, John Graham and Mary Graham, Plaintiffs-Appellants, v. CITY OF SULLIVAN, William Donelly as Mayor, Freda Hoffner as Sullivan City Clerk Treasurer, Paul Taylor as Planning and Zoning Commissioner of the Board of Zoning Appeals of the City of Sullivan, Indiana, Harold Gambill as Member of the Board of Zoning Appeals, Gary Inbody as Member, Yvonne Longfield as Member, Rex Pierce as Member, and James Vance as Member, Westside Realty, Inc., and Lastly Burger Chef, Inc., Defendants-Appellees. |
| Court | Indiana Appellate Court |
Kenneth E. Levin, C. Joseph Anderson, Terre Haute, for plaintiffs-appellants.
Robert G. Lowry, Sullivan, for defendants-appellees.
Plaintiffs-appellants, Morris J. Elmore, Darhis Elmore, John Graham and Mary Graham (hereinafter Elmores) bring this appeal from the dismissal of their action for declaratory judgment by the Sullivan Circuit Court. At issue is whether that court lacked jurisdiction to entertain the action.
We affirm.
Although somewhat obfuscated, the facts, as we discern them, are as follows. Westside Realty, Inc. owned a parcel of unimproved real estate in the City of Sullivan, Indiana. This parcel was destined to become the site of a Burger Chef restaurant. The Grahams own a residence adjacent to the parcel, and the Elmores own a residence adjacent to the Grahams.
The Sullivan Board of Zoning Appeals was petitioned for a variance from the set-back requirements of the Sullivan Zoning Ordinance in order to provide parking spaces for the restaurant. Notice was given to both the Grahams and the Elmores, and a hearing on said petition was held on April 21, 1977. The variance was granted. On or about April 26, 1977, the Sullivan Building Commissioner issued a building permit for the restaurant to be built on the parcel. Thereafter, on May 11, 1977, Elmores brought an action in Sullivan Circuit Court which sought (1) to have the building permit declared null and void, (2) to enjoin construction of the restaurant on the parcel, and (3) to enjoin the Sullivan Board of Zoning Appeals from granting special exception from the master zoning regulations so as to permit the construction of a restaurant on the parcel. Westside Realty, Inc. and the other named defendants filed a motion to dismiss pursuant to Ind. Rules of Procedure, Trial Rule 12(B) (1), (2), and (6), alleging lack of jurisdiction and failure to state a claim upon which relief could be granted. The Circuit Court dismissed the action August 1, 1977, finding Elmores had failed to exhaust administrative remedies and that the court had no jurisdiction.
On appeal, Elmores allege the Circuit Court erred when it found Elmores had failed to exhaust administrative remedies and that the court had no jurisdiction. The essence of their argument in support of that allegation is that they were not required by either the Zoning Act of 1947 1 or the Zoning Ordinance of the City of Sullivan, adopted under authority of said Act, to pursue administrative appeal before seeking equitable relief directly from the court.
Our scrutiny of the record to ascertain the verity of the Elmores' argument regarding jurisdiction has disclosed instead an infirmity that dictates affirmation of the dismissal, quite aside from any consideration of jurisdiction.
An integral part of the Elmores' appeal is their contention that a section of the Sullivan zoning ordinance authorizes the suit they brought in the circuit court. Indeed, their very complaint was predicated upon the alleged violation of a local zoning ordinance. Yet, no part of that ordinance was made a part of the complaint nor does the record contain the applicable ordinances sought to be invoked by the Elmores. Rather, Elmores have merely alluded to particular sections of the...
To continue reading
Request your trial