Robertson v. Board of Zoning Appeals, Town of Chesterton
| Decision Date | 27 August 1998 |
| Docket Number | No. 64A04-9712-CV-501,64A04-9712-CV-501 |
| Citation | 699 N.E.2d 310 |
| Parties | Charlotte ROBERTSON and the Hoosier Environmental Council, Appellants-Petitioners, v. BOARD OF ZONING APPEALS, TOWN OF CHESTERTON, and Lake Erie Land Company, Appellees-Respondents. |
| Court | Indiana Appellate Court |
Appellants-petitioners Charlotte Robertson and The Hoosier Environmental Council (HEC) appeal the trial court's order granting appellees-respondents Chesterton Board of Zoning Appeals (BZA) and Lake Erie Land Company's (Lake Erie) motion to dismiss Robertson and HEC's petition for a writ of certiorari. Although Robertson and HEC present several issues for our review, we find the following issues to be dispositive: 1 whether the trial court erred by concluding that Robertson and HEC lacked standing to petition for certiorari; and 2 whether the court erred by denying Robertson's motion for continuance.
Prior to February 13, 1997, Lake Erie filed a petition for a variance from Chesterton's Comprehensive Ordinance in order to construct a grocery store and to erect a sign on a portion of a 640 acre parcel, which was owned by Lake Erie and located in an area of Chesterton zoned for residential use only. The grocery store was to be approximately 45,000 square feet and was to be located in the corner of the parcel, approximately 300 feet east of State Road 49 at its intersection with County Road 1050 North. Record at 578.
On February 27, 1997, the BZA conducted a public hearing regarding Lake Erie's request. During the hearing, Lake Erie's attorney explained that, due to the proposed location of the entrance to the grocery, it would have to make a few minor changes to the road system near the intersection where the grocery would be located in order to make travel safer. The most onerous of these changes appeared to be the prohibition of left turns at the S.R. 49, 1050N intersection and the rerouting of 1050N. R. at 597. Robertson, who owned two tracts of land, the closest being approximately one and one-half miles from the proposed variance site, attended the hearing and opposed the variance both personally and as representative of HEC, an organization purporting to represent the interests of the public from injuries caused by the variance. Nonetheless, the BZA approved the variance, finding that the construction of the grocery store would not be injurious to the public health, safety, morals and general welfare of the community, the use and value of the area adjacent to the property included in the variance would not be affected in a substantially adverse manner, and that strict application of the terms of the zoning ordinance would make it difficult to use the property in any manner. However, the BZA stated that a building permit would not be issued until the Indiana Department of Transportation approved the plans for the alterations in the road system.
On March 27, 1997, Robertson, HEC, Jennifer Fontenot and Brendon Smith 1 jointly filed a petition for certiorari in the Porter Superior Court, alleging that the BZA's decision to grant the variance was "illegal, not warranted by the evidence, arbitrary and capricious and an abuse of discretion." R. at 14. Thereafter, on April 11, 1997, the BZA filed a motion to dismiss, which Lake Erie later joined, contending that the petitioners lacked standing to bring a cause of action because they were not "aggrieved" 2 by the BZA's decision. The court set the matter for a hearing on June 4, 1997, which was later continued to June 16, 1997.
On April 28, 1997, Brendon Smith filed a motion to dismiss himself from the suit, which the court granted. On May 21, 1997, Robertson filed a verified motion for the removal of the BZA's counsel in this cause, contending that the BZA's counsel and his law firm had represented her and her family in the past and continue to do so. The court set the matter for hearing on June 16, 1996. On June 12, 1996, Robertson and HEC filed a motion to continue the June 16 hearing, contending that, due to the "great emotional and mental stress" she was sustaining as a result of this litigation, she would be unable to testify, participate or effectively prepare her case during the hearing. R. at 177-78. The court denied Robertson's motion for continuance.
Thereafter, on June 13, 1997, Jennifer Fontenot filed a motion to dismiss herself from the suit, which the court granted. That afternoon, Robertson and HEC served Jerry Mobley, President of Lake Erie, and Gayle Polakowski, the Clerk-Treasurer of Chesterton, with subpoenas which sought to compel their testimony at the June 16 hearing and required them to bring numerous records and documents pertaining to the proposed effects of the variance on the community. Robertson and HEC also served Jennifer Fontenot and Brendon Smith with subpoenas, seeking to compel their testimony at the hearing as well. Later that same day, Lake Erie and the BZA filed motions to quash the subpoenas, stating that Robertson and HEC had ample opportunity to conduct discovery in this matter, but failed to do so, that their "11th hour" request was burdensome, oppressive, and vexatious and "the materials requested in the subpoena are largely irrelevant to the issues to be addressed" at the hearing. R. at 199.
Also on June 13, 1997, Robertson and HEC filed a memorandum opposing the BZA's and Lake Erie's motion to dismiss. Specifically, HEC contended that, although it did not own property in Chesterton, because it was acting on behalf of its members who were landowners who had been injured by the granting of the variance, HEC had standing. Additionally, Robertson contended that, because she owned property within one and one-half miles of the proposed variance and because she was present as a remonstrator at the meeting before the BZA, she was an aggrieved party. In the alternative, Robertson contended that she and the surrounding landowners were aggrieved by the granting of the variance because the proposed construction would cause harm to the environment, create an aesthetically displeasing landscape, place additional burden and inconvenience on travel and increase the response time of emergency vehicles.
The June 16 hearing was held in Robertson's absence. During the hearing, the court granted Lake Erie's and the BZA's motions to quash the subpoenas which were directed to Mobley, Fontenot and Smith, finding that the information sought to be obtained by the subpoenas was not relevant to the issue of standing. However, the court did not rule on the motion to quash the subpoena of Gayle Polakowski. Thereafter, the court denied Robertson's petition to remove counsel and granted the BZA's and Lake Erie's motion to dismiss, finding that Robertson and HEC were not aggrieved parties and, therefore, did not have standing to bring the suit. Robertson and HEC now appeal.
When, as here, the trial court enters findings of fact and conclusions of law sua sponte, the specific findings control only as to the issues they cover, while a general judgment standard applies to any issue upon which the court has not entered findings. Reinking v. Metropolitan Bd. of Zoning Appeals of Marion Co., 671 N.E.2d 137, 140 (Ind.Ct.App.1996). In reviewing an issue covered by specific findings, we affirm the judgment on any legal theory supported by the findings. Mitchell v. Mitchell, 695 N.E.2d 920, 923 (Ind.1998). However, in reviewing an issue not covered by the findings, we may affirm on any theory supported by the evidence. Reinking, 671 N.E.2d at 140.
Robertson and HEC contend that the trial court erred by granting Lake Erie and the BZA's motion to dismiss. Initially, Robertson and HEC contend that Lake Erie and the BZA waived the right to challenge their standing because they failed to raise the issue at the BZA hearing. HEC also contends that it has standing as a public ombudsman to protect the interest of the community. In addition, Robertson contends that, because she is an adverse party as defined in IND.CODE § 36-7-4-1005(a) she is necessarily an aggrieved party. In the alternative, she contends that she was prevented from establishing that she was an aggrieved party because the court quashed the subpoenas issued to Mobley, Fontenot and Smith.
Pursuant to IND.CODE § 36-7-4-1003, only a person aggrieved by the decision of the board of zoning appeals may petition the county circuit or superior court for certiorari. An aggrieved person is one who has suffered a substantial grievance, a denial of some personal or property right, or the imposition of a burden or obligation. Metropolitan Dev. Comm'n of Marion Co. v. Cullison, 151 Ind.App. 48, 51, 277 N.E.2d 905, 907 (1972). The person must have a legal interest which will be enlarged or diminished by the result of the appeal. Id. However, the term "person aggrieved" is not broad enough to include anyone other than the person directly affected by the action of the board. Id. Therefore, a party seeking to petition for certiorari on behalf of a community must show some special injury other than that sustained by the community as a whole. Id. We similarly find that a party seeking to petition for certiorari on behalf of itself must also demonstrate a special injury not common to the community as a whole.
Initially, Robertson and HEC contend that Lake Erie and the BZA waived the issue of standing because they failed to raise the issue at the BZA hearing when Robertson and another representative from HEC first stated their opposition to...
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