Harbeson v. Town of Lanesville
| Decision Date | 23 December 1985 |
| Docket Number | No. 1-585A138,1-585A138 |
| Citation | 486 N.E.2d 1065 |
| Parties | Paul HARBESON, et al, Petitioner-Appellants, v. TOWN OF LANESVILLE, et al, Defendant-Appellees. |
| Court | Indiana Appellate Court |
H.L. Whitis, Corydon, for petitioner-appellants.
Stanley O. Faith, New Albany, for defendant-appellees.
STATEMENT OF THE CASE
Petitioner-appellants, Paul Harbeson, et al., (Harbeson), appeals a Harrison Circuit Court order affirming the Harrison County Board of Zoning Appeals' (Board) approval of the Town of Lanesville's (City) application for a special exception of use under the Harrison County, Indiana Zoning Ordinance (Ordinance).
We affirm.
On November 30, 1984, the Board held a hearing concerning the City's reapplication 1 for a special exception from the Ordinance's conditional prohibition regarding the establishment of sewage treatment plants in areas zoned "agricultural-residential" (A-R). The transcript of the hearing spans some 180 pages and includes appearances and statements by City attorneys, engineers, health officials, private attorneys, realtors and several local residents. Since the City did not own the land in question but merely possessed a "letter of intent" to sell the land issued by the titleholder, the issue of standing was raised and argued. Ultimately the Board adjourned the meeting, indicating that it would announce its decision on the City's special exception request at its next meeting, December 22, 1983. In the interim, the City purchased the land in question. On December 22, 1983, the Board received additional information, from both the City and Harbeson, regarding the City's application. Included were arguments on the issue of standing. At that meeting the Board approved the City's special exception request. On January 19, 1984, Harbeson, pursuant to IND.CODE 36-7-4-1003, 2 filed a Writ of Certiorari with the appropriate trial court. After a flurry of motions and objections and two separate special judge appointments, the trial court affirmed the Board's action. From that judgment Harbeson now appeals.
The issues on review are as follows:
I. Whether the City had standing as an applicant for a special exception.
II. Whether sufficient evidence exists to support the Board's finding that the special exception would not substantially and permanently injure the appropriate use of neighboring properties.
III. Whether the Board erred in failing to rule on the City's special exception request at its November 30, 1983, meeting rather than at its December 22, 1983 meeting.
IV. Whether the court erred in denying Harbeson's request for transcripts of both the Board's December 22, 1983 and May 31, 1984 meetings.
V. Whether the court erred in failing to consider what transpired at the Board's December 22, 1983 and May 31, 1984 meetings.
VI. Whether the Board erred by considering in its decision information presented outside the November 30, 1983 meeting.
Our scope of review of a zoning board of appeals decision is the same as the trial court's. Metropolitan Board of Zoning Appeals v. Gunn (1985), Ind.App., 477 N.E.2d 289. The only issue is whether the Board's decision is correct as a matter of law. If there is sufficient supporting evidence, the Board's otherwise lawful decision will not be disturbed. Metropolitan Board of Zoning Appeals, supra. A strong presumption exists that the judgment and ruling of the trial court is correct, and an appellant bears the burden of demonstrating error. First National Bank of Mishawaka v. Penn-Harris-Madison School Corp. (1972), 255 Ind. 403, 265 N.E.2d 16.
Harbeson first contends that the City failed to establish sufficient standing to allow Board consideration of its special request.
It has been held that Ind. Rules of Procedure, Trial Rule 17(A) 3 governing standing is applicable to administrative hearings, including zoning board of appeals proceedings. Bowen v. Metropolitan Board of Zoning Appeals in Marion County (1974), 161 Ind.App. 522, 317 N.E.2d 193. The purpose of the standing, or real party in interest, requirement is to prevent the filing of meritless and frivolous suits, or in this case, special exception requests by individuals without an interest in the outcome of the proceedings. Bowen, supra. The interest must be such that the judicial or administrative decision will cause the filing party injury or benefit. Fail v. LaPorte County Board of Zoning Appeals (1976), 171 Ind.App. 192, 355 N.E.2d 455. The party may not be a mere bystander.
In the instant case, the City was no mere bystander. The Board's decision may have meant the difference between eliminating or not eliminating a perceived serious health hazard, i.e. the apparent presence of raw sewage in the area. It is true that at the time the proceedings began the City had only an "agreement to agree" to buy the property at issue. However, prior to the Board's final action, the City had in fact purchased the property. Thus, even assuming arguendo that the City was not a real party in interest at the outset of the Board's proceedings, it clearly was such by the time the Board granted the request. A hyper-technical violation of that nature is of no consequence, particularly in light of the fact that, via eminent domain, the City could have mooted the entire standing issue by condemning the property. No public interest could have been served and it would have been a waste of public money to have purchased the property only to be denied the right to use it. While we agree that the City's standing would have been more easily ascertainable had it, prior to submitting its special exception application, entered into a contract to purchase the property conditioned on a favorable Board decision, the course it chose was sufficient to establish standing.
For the above reasons we hold that the City had sufficient standing to participate as a party in the Board's special exception proceedings.
Next, Harbeson contends that insufficient evidence was presented to support the Board's determination that the special exception would not "substantially and permanently injure the appropriate use of the neighboring property." Harrison County, Indiana, Zoning Ordinance Section 501.1.
When reviewing the sufficiency of the evidence, we may neither reweigh the evidence nor judge the credibility of the witnesses; we may only consider that evidence most favorable to the judgment below. Martin v. Roberts (1984), Ind., 464 N.E.2d 896. In order to prevail in a sufficiency of the evidence argument, the challenging party must show either that the supporting evidence is based on "mere conjecture, guess, surmise, possibility or speculation," G.B. v. S.J.H. (1975), 167 Ind.App. 175, 338 N.E.2d 315, or that the evidence supporting the result is such that no reasonable mind could have reached that result. See G.B., supra.
In order to obtain the special exception, the City needed to comply with the criteria for the exception as set forth in the Ordinance. Ash v. Rush County Board of Zoning Appeals (1984), Ind.App., 464 N.E.2d 347. If it complied, it was entitled to the exception as a matter of right. Ash, supra. Although not specified as such, Section 501.1 of the Ordinance indicates that the following are the criteria which must be met in order to obtain a special exception:
(1) The special exception is consistent with the spirit, purpose and intent of the ordinance;
(2) The special exception will not substantially and permanently injure the appropriate use of the neighboring property; and
(3) The special exception will not affect the health, safety, morals and welfare of the community.
Harbeson contends that the second criterion was not sufficiently proven.
The intent in establishing A-R zoning areas in Harrison County was to "preserve the rural character of the county by promoting agricultural and agricultural related uses." Harrison County, Indiana Zoning Ordinance, Sec. 501.1. Therefore, as part of its case, the City was required to establish that the placement of a sewage treatment plant on the property at issue would not substantially and permanently injure the agricultural character of the particular A-R zoned area. In attempting to do so, the City presented the following evidence:
--That so long as the plant is correctly operated no unpleasant odors would be emitted;
--That no disturbing noise would be emitted;
--That the plant would be designed to resemble other buildings in the area and that trees could be planted to conceal its presence; and
--That various safety measures would be installed to prevent any discharge of offensive materials...
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