Habig v. Harker, 1-882A249

Decision Date18 April 1983
Docket NumberNo. 1-882A249,1-882A249
Citation447 N.E.2d 1114
PartiesCharles F. HABIG, Respondent-Appellant, and The City of Jasper, Indiana, the Board of Zoning Appeals, v. Hilda HARKER, John L. Pfister and Carol M. Pfister, Petitioners-Appellees.
CourtIndiana Appellate Court

Howard B. Lytton, Jr., Steven E. Ripstra, Lytton & Ripstra, Jasper, for respondent-appellant.

William C. Beckman, Gray, Chappell & Beckman, Jasper, for petitioners-appellees.

RATLIFF, Judge.

STATEMENT OF CASE

Charles Habig appeals from the trial court's judgment ordering him either to modify certain buildings to conform to the Jasper City Zoning Ordinance or to tear them down. We reverse and remand to the trial court for further proceedings.

FACTS

Habig is the owner of four parcels of real estate zoned R-3 in Jasper, Indiana. In December 1981 he applied for and was issued two Improvement Location and Building

Permits in order to construct two duplexes on these lots. On January 14, 1982, neighboring landowners filed suit in Dubois Circuit Court to stop construction, but this suit was dismissed, and on January 28, 1982, they filed a notice of appeal of the decision of the zoning administrator with the Jasper Board of Zoning Appeals. Work on the duplexes was stopped and a hearing was held before the Board on February 17, 1982. The neighbors contended that the permits had been issued illegally because the Improvement Location Permits approved by the zoning administrator did not conform to the developmental standards of the ordinance as it related to R-3 zoning and that no variance had been obtained. The Board upheld the zoning administrator's issuance of the building permits, and the neighbors filed their Petition for Writ of Certiorari in Dubois Superior Court. In the return to the writ the city supplied the court with a complete transcript of the February 17, 1982, hearing of the Board and a copy of the minutes thereof. Later, counsel for the zoning administrator and the Board attempted to have included in the record for the court's review a copy of the Board's findings of fact which counsel contended was submitted with the Board's record but for some unknown reason was not included in the court's record. The court refused admission of the findings, but permitted them to be made part of the record for purposes of appeal upon an offer to prove.

ISSUES

1. Did the trial court err in excluding the written findings of fact submitted by the Board?

2. Did the trial court err in finding that Board's decision to be illegal?

3. Did the trial court err in finding the Board had incorrectly interpreted the applicable zoning ordinance?

4. Was the relief granted by the trial court excessive?

5. Did the trial court err in issuing a stay order pursuant to Indiana Code Section 36-7-4-1007 prior to a hearing?

DISCUSSION AND DECISION
Issue One

Habig argues that the trial court abused its discretion in refusing to admit the Board's findings and in formulating its own findings upon the Board's record. We agree.

Judicial review of administrative agency actions is subject to certain well established principles. For example, it is a fundamental requirement that boards of zoning appeals in all cases set out written findings of fact in support of their decisions, Ind.Code Sec. 36-7-4-915, so that courts may intelligently review the board's decision without speculation as to its factual basis. Kunz v. Waterman, (1972) 258 Ind. 573, 577, 283 N.E.2d 371, 373; Carlton v. Board of Zoning Appeals, (1969) 252 Ind. 56, 66, 245 N.E.2d 337, 343. Boards of zoning appeals in Indiana are entrusted with the powers to hear and determine an appeal from the decision of an administrative official where it is argued that the official erroneously interpreted the ordinance. Ind.Code Sec. 36-7-4-918(b)(2), 919; 3 A. Rothkopf, The Law of Zoning and Planning Sec. 37.01 (1983). It has been said that the Board has the function of deciding

"within prescribed limits and consistent with the exercise of legal discretion, whether the ordinance applies to a given situation and the manner in which it does not apply. The interpretation of legislation presents a question of law, and an administrative agency, such as a board of zoning appeals, is called upon to determine the applicability of the law to a given state of facts presented to it. It is the function of the court to decide whether the board correctly interpreted the regulation and applied it with reasonable discretion to the facts."

3 Rothkopf, Zoning Sec. 37.10 at 37-9. The decision of the Board may then be reviewed by the trial court only for the purpose of determining whether or not the board's action was contrary to law. Devon Civic League v. Marion County Board of Zoning Appeals, (1967) 140 Ind.App. 519, 524, 224 N.E.2d 66, 69, trans. denied; Metropolitan Board of Zoning Appeals of Marion County v. Froe Corporation, (1965) 137 Ind.App. 403, 414, 209 N.E.2d 36, 41-42; Board of Zoning Appeals v. American Fletcher National Bank & Trust Company, (1965) 139 Ind.App. 9, 12, 205 N.E.2d 322, 324, trans. denied. Courts may not make findings for an administrative agency based upon the evidence in the record: that is the agency's duty, and courts may only review, not make, even by inference, such findings. Boffo v. Boone County Board of Zoning Appeals, (1981) Ind.App., 421 N.E.2d 1119, 1125, trans. denied. Where a board of zoning appeals has failed to make findings, the proper action of the trial court is to remand for the entry of findings. A court may not substitute its decision for that of a board of zoning appeals. Board of Zoning Appeals of Bartholomew County v. Freeman, (1982) Ind.App., 437 N.E.2d 1035, 1040.

Appellees argue that the trial court properly excluded the Board's findings because procedural irregularities exist in the Board's method of adopting them. Those findings were adopted at a meeting other than the one at which evidence was presented. Although we pass no judgment at this point upon the question of whether or not the proffered findings had been properly adopted by the Board, we disagree with the appellees that the adoption of findings must be made at the same meeting at which the evidence is heard. As we pointed out in Boffo, 421 N.E.2d at 1131, where a board fails to make findings and the cause is remanded to the board for the entry of findings, such findings are generally to be...

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13 cases
  • Metropolitan Bd. of Zoning Appeals, Div. II, Marion County v. Gunn, 2-583A157
    • United States
    • Court of Appeals of Indiana
    • 23 Abril 1985
    ...only remand for a correction of the irregularity by breaking the generalities down into more specific findings. See Habig v. Harker (1983), Ind.App., 447 N.E.2d 1114 ("Where a board of zoning appeals has failed to make findings, the proper action of the trial court is to remand for the entr......
  • Town Council of New Harmony v. Parker, 87S01-9911-CV-673.
    • United States
    • Supreme Court of Indiana
    • 18 Abril 2000
    ...decision of an administrative official where it is argued that the official erroneously interpreted the ordinance." Habig v. Harker, 447 N.E.2d 1114, 1116 (Ind.Ct.App.1983). If Parker was dissatisfied with the decision by the Board of Zoning Appeals, she could then seek judicial review of i......
  • Reinking v. Metropolitan Bd. of Zoning Appeals of Marion County, 49A04-9512-CV-462
    • United States
    • Court of Appeals of Indiana
    • 13 Septiembre 1996
    ...of Zoning Appeals, 480 N.E.2d 589, 592 (Ind.App.Ct.1985). We do not substitute our decision for that of the Board. Habig v. Harker, 447 N.E.2d 1114, 1116 (Ind.Ct.App.1983). We will not reweigh the evidence to reach a conclusion different from that of the Board. Fail, 355 N.E.2d at 459. The ......
  • Vehslage v. Rose Acre Farms, Inc., 1-1283A375
    • United States
    • Court of Appeals of Indiana
    • 25 Febrero 1985
    ...is remanded to the Board, the findings are generally to be made without further hearing or presentation of evidence. Habig v. Harker (1983) Ind.App., 447 N.E.2d 1114. This was the course of events in Vehslage and Colliver upon remand by the Court of Appellants describe a "fatal flaw" of the......
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