Shipshewana Convenience Corp. v. Board of Zoning Appeals of LaGrange County, 44

• Docket Nº: CV-374
• Citation: 656 N.E.2d 812
• Case Date: October 11, 1995
• Court: Supreme Court of Indiana

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656 N.E.2d 812 SHIPSHEWANA CONVENIENCE CORPORATION, Mildred Mishler, Keith
and Judy Mishler and George Bechman, Appellants-Petitioners,
v.
The BOARD OF ZONING APPEALS OF LAGRANGE COUNTY, Indiana,
Richard W. Parish and Marian L. Parish, Husband
and Wife, Appellee-Respondents No. 44 SO3-9503-CV-374. Supreme Court of Indiana. Oct. 11, 1995.

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

Phillip A. Renz, Miller, Carson, Boxberger & Murphy, Fort Wayne, Jeffrey A. James, LeRoy K. Schultess, LaGrange, Jeffrey L. Gage, Columbia City, for appellees.

ON PETITION TO TRANSFER

SULLIVAN, Justice.

We hold that strict compliance with the requirements of the statute governing appeals from decisions of boards of zoning appeals is necessary for the trial court to obtain jurisdiction over such cases. However, we are unable to conclude that a trial court fails to acquire such jurisdiction when a petitioner fails to request the order to show cause contemplated by that statute.

I

The procedure for judicial review of a decision of a board of zoning appeals is controlled by statute. The statutory requirements implicated in this case are as follows:

1. A party aggrieved by a decision of a Board of Zoning Appeals must file (a) a verified petition; ¹ (b) for a writ of certiorari to the Board of Zoning Appeals; ² (c) in a circuit or superior court in the county in

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which the premises are located; ³ (d) within thirty days after the date of the Board of Zoning Appeal's decision; ⁴ (e) setting forth that the decision of the Board of Zoning Appeals is illegal in whole or in part and specifying grounds of the illegality. ⁵

2. The aggrieved party must have notice served by the sheriff on each "adverse party" as defined by the statute. ⁶

3. Upon the filing of a petition for a writ of certiorari, the court is required to direct the Board of Zoning Appeals, within twenty days after the date of the petition, to show cause why the writ of certiorari should not issue. ⁷

4. If the Board of Zoning Appeals makes no or an inadequate showing that the writ should not issue, the court may issue the writ, prescribing a deadline for response not less than ten days from the date the writ is issued. ⁸

In this case, Richard and Marian Parish successfully applied to the LaGrange County Board of Zoning Appeals for a variance from the LaGrange County Zoning Ordinance. Shipshewana Convenience Corporation and others (collectively referred to in this opinion as the petitioners) filed a verified petition for a writ of certiorari to the Board in the LaGrange Circuit Court within thirty days after the date of the Board's decision alleging that the decision of the Board was illegal and specifying the grounds of the alleged illegality. Notice was given to the Board and the Parishes (collectively referred to in this opinion as the respondents). Neither the Board nor the Parishes argue to us that any of the statutory requirements identified in items 1 or 2 above were not complied with.

Within a few days of the filing of the verified petition, the trial court issued the writ of certiorari in the form requested by petitioners, in compliance with the requirements described in the second part of item 4 above.

What were missing, of course, were the order to the Board to show cause as to why the writ should not issue and the Board's opportunity to respond, as described in item 3 and the first part of item 4 above. The respondents seized upon this defect and moved to dismiss the petition on grounds that the trial court never acquired subject matter jurisdiction over the cause. Citing to precedent to be reviewed infra, they argue that by failing to obtain an order to show cause in advance of the issuance of the writ, the petitioners failed to comply with the requirements of the statute such that the jurisdiction of the court was not invoked.

Petitioners concede that their verified petition did not contain any request for the trial court to issue the order to show cause but argue that the statute imposed no duty upon them to do so. Rather, they contend that it was the trial court's job, not theirs, to issue the order to show cause.

Upon consideration of the arguments, the trial court agreed with respondents, quashed the writ, and granted the motion to dismiss with prejudice. The Court of Appeals affirmed. Shipshewana Convenience Corp. v. Board of Zoning Appeals of LaGrange County, Indiana (1994), Ind.App., 644 N.E.2d 581.

II

Where there is a failure to comply strictly with the jurisdictional requirements embodied in the statute providing for judicial review of the decisions of a board of zoning appeals, a trial court does not acquire jurisdiction of the parties or the particular cause. State ex rel. Board of Zoning Appeals of the City of Indianapolis v. Grant (1965), 246 Ind. 317, 318, 204 N.E.2d 658, 659; Ballman v. Duffecy (1952), 230 Ind. 220, 229, 102 N.E.2d 646, 650. ⁹ Indeed, Indiana appellate

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courts have affirmed dismissals of such cases for failure to file a verified petition, Keil Chemical v. Common Council (1993), Ind.App., 612 N.E.2d 209, 212, trans. denied; failure to provide notice to adverse parties, Allen Co., Indiana, Bd. of Zoning Appeals v. Guiff (1990), Ind.App., 552 N.E.2d 519, 523; ¹⁰ and failure to present a petition to the trial court within the 30-day period, Ballman, 230 Ind. at 228, 102 N.E.2d at 649.

But even though there is little...