Shipshewana Convenience Corp. v. Board of Zoning Appeals of LaGrange County, Ind., 44A03-9406-CV-237

• Docket Nº: No. 44A03-9406-CV-237
• Citation: 644 N.E.2d 581
• Case Date: December 09, 1994
• Court: Court of Appeals of Indiana

Page 581

644 N.E.2d 581 SHIPSHEWANA CONVENIENCE CORPORATION, Mildred Mishler, Keith
and Judy Mishler and George Bachman, Appellants-Petitioners,
v.
THE BOARD OF ZONING APPEALS OF LAGRANGE COUNTY, INDIANA,
Richard W. Parish and Marian L. Parish, Husband
and Wife, Appellees-Respondents. No. 44A03-9406-CV-237. Court of Appeals of Indiana,
Third District. Dec. 9, 1994.

Page 582

Dane L. Tubergen, Hunt, Suedhoff, Borror & Eilbacher, Fort Wayne, for appellants.

Jeffrey L. Gage, Bloom Gate Gates & Whiteleather, Columbia City, Leroy K. Schultess, LaGrange, for Richard W. Parish and Marian L. Parish.

Phillip A. Renz, Diana C. Bauer, Miller, Carson, Boxberger & Murphy, Fort Wayne, Jeffrey A. James, LaGrange, for The Board of Zoning Appeals of LaGrange County, Indiana.

OPINION

STATON, Judge.

Shipshewana Convenience Corporation, Mildred Mishler, Keith Mishler, Judy Mishler, and George Bachman (collectively "Shipshewana") appeal from the trial court's judgment to dismiss with prejudice their petition for writ for certiorari for review of a decision by the Board of Zoning Appeals LaGrange County, Indiana ("BZA"). Shipshewana presents three issues for our review which we restate as follows:

I. Whether the trial court erred in determining that Shipshewana failed to meet the jurisdictional prerequisites mandatory to obtaining judicial review of a decision of a board of zoning appeals.

II. Whether dismissal of Shipshewana's petition was the only remedy available to the trial court.

III. Whether the trial court's dismissal of Shipshewana's petition for writ of certiorari violated Shipshewana's right to due process of law.

We affirm.

Richard W. Parish and Marian Parish ("Parish") filed an application for a variance with BZA which was approved on April 26, 1993. On May 26, 1993, Shipshewana filed and presented to the LaGrange Circuit Court a verified petition for a writ of certiorari alleging that the decision of BZA was illegal. Along with the petition, Shipshewana notified BZA and Parish by way of service by the county sheriff. ¹ On August 2, 1993, BZA filed a motion to dismiss for lack of jurisdiction. After conducting a hearing on the issues, the trial court granted BZA's motion. The trial court subsequently denied Shipshewana's motion to correct errors. This appeal ensued.

I.

Jurisdictional Requirements

Shipshewana contends that the trial court erred when it dismissed Shipshewana's petition for writ of certiorari for failure to meet the jurisdictional requirements mandatory to invoking judicial review of a decision of a board of zoning appeals.

The procedure with which to review a decision of a board of zoning appeals is set forth by statute. IND.CODE 36-7-4-1003(a) (1993) provides in pertinent part:

(a) Each decision of the ... board of zoning appeals is subject to review by certiorari. Each person aggrieved by a decision of the board of zoning appeals ... may present to the circuit or superior court of the county in which the premises affected are located, a verified petition setting forth that the decision is illegal in whole or in part and specifying the grounds of the illegality.

(b) ADVISORY. The person shall present the petition to the court within thirty (30) days after the date of that decision of the board of zoning appeals.

I.C. 36-7-4-1005 provides in pertinent part:

(a) 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 party.... An adverse party is any property

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owner who the record of the board of zoning appeals shows had appeared at the hearing before the board in opposition to the petitioner.

I.C. 36-7-4-1006 provides in pertinent part:

On presentation of a petition for a writ of certiorari, the court shall direct the board of zoning appeals, within twenty (20) days after the date of the petition, to show cause why a writ of certiorari should not issue. If the board fails to show to the satisfaction of the court that a writ should not issue, then the court may allow a writ of certiorari directed to the board. The writ must prescribe the time in which a return shall be made to it. This time must not be less than ten (10) days from the date of issuance of the writ, and the court may extend the time. (Emphasis added.)

Shipshewana asserts that it complied with the statutory requirements of I.C. 36-4-7-1003, I.C. 36-4-7-1005 and I.C. 36-4-7-1006 when it timely filed a verified petition for writ of certiorari with the trial court and served notice on BZA by way of the sheriff. BZA contends that because no order to show cause was conducted prior to the issuance of the Writ of Certiorari and within twenty days of the filing of the petition, as required by I.C. 36-7-4-1006, Shipshewana did not sufficiently comply with the statute and therefore failed to invoke the trial court's jurisdiction.

In a proceeding for judicial review of an administrative determination, compliance with the statutory requirements for review is a condition precedent to jurisdiction. Keil Chemical v. Common Council (1993), Ind.App., 612 N.E.2d 209, 212, trans. denied. Where there is a failure to comply with jurisdictional requirements embodied in a statute, a trial court does not acquire jurisdiction of the parties or the particular case. Id. at 213. A petitioner for a writ of certiorari must take certain actions to insure that his petition for writ of certiorari is brought within the confines of the jurisdictional statutes to the best of his abilities. Allen County...