Phillips v. Board of Zoning Appeals for City of New Albany
| Decision Date | 29 February 1996 |
| Docket Number | No. 22A01-9509-CV-305,22A01-9509-CV-305 |
| Citation | 661 N.E.2d 903 |
| Parties | Charles W. PHILLIPS and Patricia Phillips, Ronald Flick, Mary Flick, Frederick J. Kelley, Marla Kelley, Georgia Gross, Rene' Kalkbrenner, Cheryl Kalkbrenner, Roger Colglazier and Mary Colglazier, Appellants-Petitioners, v. BOARD OF ZONING APPEALS FOR the CITY OF NEW ALBANY, J & S Builders, Inc., and Marcia M. Heilman, Appellees-Respondents. |
| Court | Indiana Appellate Court |
Appeal from the Floyd Circuit Court; Daniel F. Donahue, Special Judge, Cause No. 22C01-9410-CP-407.
John A. Kraft, Young, Lind, Endres & Kraft, New Albany, for Appellants.
Robert A. Kelso, New Albany, for Appellees.
The appellants-petitioners Charles W. and Patricia Phillips, Ronald and Mary J. Flick, Frederick J. and Marla Kelly, Georgia Gross, Rene' and Cheryl L. Kalkbrenner, and Roger and Mary Colglazier (collectively Phillips) challenge the trial court's judgment in their action against appellees-respondents Board of Zoning Appeals for the City of New Albany (BZA), J & S Builders, Inc., and Marcia Heilman. Specifically, Phillips contest the denial of their petition for writ of certiorari seeking judicial review of a decision of the BZA and the grant of J & S's motion to dismiss for lack of jurisdiction.
Phillips are homeowners in Floyd County, Indiana. On September 6, 1994, the BZA granted J & S a special exception permit to construct an apartment/commercial development on property owned by Heilman which was located in Phillips' neighborhood. Phillips were opposed to the development and on October 5, 1994, filed a petition for writ of certiorari against the BZA, J & S and Heilman in the Floyd Circuit Court seeking judicial review of the BZA's decision granting the special exception permit to J & S. Along with the petition, Phillips filed a motion, pursuant to Ind.Trial Rule 76, for a change of venue from the judge. The petition for writ of certiorari, T.R. 76 motion and summons were served via certified mail upon J & S on October 7, 1994, and on the BZA and Heilman on October 8, 1994.
On November 7, 1994, J & S entered an appearance and filed a motion to dismiss for lack of jurisdiction alleging that Phillips failed to comply with the requirements of IND.CODE § 36-7-4-1006 in that the BZA was never directed to show cause why a writ of certiorari should not be issued and that Phillips had not complied with the notice provisions of IND.CODE § 36-7-4-1005(a). Thereafter, on November 20, 1994, Special Judge Donahue was qualified and assumed jurisdiction over the case. Subsequently, on February 3, 1995, the court held a hearing on Phillips' petition for writ of certiorari and on J & S's motion to dismiss. The BZA, however, did not attend the hearing and thus, failed to show cause why a writ should not be issued. As a result, prior to the trial court's ruling on the original petition for writ of certiorari, Phillips filed, via certified mail, a renewed petition for writ of certiorari based upon the BZA's failure to appear at the hearing.
On March 22, 1995, the trial court denied Phillips' petition for writ of certiorari and granted J & S's motion to dismiss for lack of jurisdiction. Subsequently, on March 24, 1995, Phillips filed a motion for reconsideration and a motion to correct errors, which the trial court denied on June 14, 1995. 1 Phillips now appeals the trial court's grant of J & S's motion to dismiss and the denial of their petition for writ of certiorari against the BZA.
First, we address Phillips claim that the trial court erred in granting J & S's motion to dismiss for lack of jurisdiction. It appears that the trial court based its decision to grant J & S's motion to dismiss on this court's previous decision in Shipshewana Convenience Corp. v. Bd. of Zoning Appeals of LaGrange County, Indiana, 644 N.E.2d 581 (Ind.Ct.App.1994). In that case, we held that, pursuant to I.C. § 36-7-4-1006, 2 when a petitioner fails to request the trial court to issue a show cause order, he or she has not complied with the statutory requirements for judicial review and thus, the trial court has no jurisdiction over the case. Id. However, that decision in Shipshewana was later overruled by the Supreme Court in Shipshewana Convenience Corp. v. Bd. of Zoning Appeals of LaGrange County, Indiana, 656 N.E.2d 812 (Ind.1995). In vacating our prior decision, the Supreme Court held that the trial court, and not the petitioner, has the responsibility to issue a show cause order to the BZA and thus, the petitioner's failure to request such an order does not divest the trial court of jurisdiction. Id. at 814. In applying the mandate of our supreme court to the facts of this case, we hold that Phillips was not required to request that the trial court issue an order to show cause to the BZA and, as a result, the trial court was not divested of jurisdiction. Therefore, the trial court erred in granting J & S's motion to dismiss for lack of jurisdiction. 3
Nonetheless, J & S argues that the trial court's grant of its motion to dismiss for lack of jurisdiction was proper on other grounds. Specifically, it claims that although Phillips filed the petition for writ of certiorari with the clerk of the trial court, they failed to comply with the statutory requirement of I.C. § 36-7-4-1006 that the petitioner also present the petition to the trial court. However, in Chandler v. Bd. of Zoning Appeals of Evansville and Vanderburgh County, Indiana, 658 N.E.2d 80 (Ind.1995), the petitioner filed the petition for a writ of certiorari with the clerk of the court and did not thereafter present the petition to the trial court. Rather, the clerk presented the petition to the trial judge who signed the order, yet failed to issue an order for the BZA to show cause why a writ should not issue. The Supreme Court held that the petitioners had done everything expressly required of them by statute to vest jurisdiction in the trial court. Id. at 81. In the present case, Phillips filed the petition for a writ of certiorari with the clerk of the court. Subsequently, the clerk delivered the entire file of the case to the trial judge so that he could rule on Phillips' motion for change of venue from the judge. Included in that file was Phillips' petition for writ of certiorari. Pursuant to Chandler, we find that Phillips sufficiently complied with the statutory requirements for the trial court to acquire jurisdiction. Accordingly, we are compelled to reverse and remand this case with instructions for the trial court to issue a show cause order to the BZA. 4
Nevertheless, J & S's suggests that the trial court properly granted its motion to dismiss for lack of jurisdiction because Phillips failed to comply with the notice requirement of I.C. § 36-7-4-1005(a). I.C. § 36-7-4-1005(a) provides in pertinent part:
On filing a petition for a writ of certiorari with the clerk of the court, the petitioner shall have a notice served by the sheriff of the county on each adverse...
To continue reading
Request your trial