Stout v. Mercer

• Decision Date: 20 June 1974
• Docket Number: No. 1--373,1--373
• Citation: 312 N.E.2d 515,160 Ind.App. 454
• Parties: James O. STOUT and Deborah Stout, Appellants (Defendants Below), v. Gail MERCER et al., Appellees (Petitioners Below), and Francis W. South et al., Appellees (Defendants Below). A 43.
• Court: Indiana Appellate Court

Page 515

312 N.E.2d 515

160 Ind.App. 454

James O. STOUT and Deborah Stout, Appellants (Defendants Below), v. Gail MERCER et al., Appellees (Petitioners Below) and Francis W. South et al., Appellees (Defendants Below).

No. 1--373 A 43.

Court of Appeals of Indiana, First District.

June 20, 1974.

Hansford C. Mann, Terre Haute, for appellants; Mann, Mann, Chaney, Johnson & Hicks, Terre Haute, of counsel.

John P. Stelle, Brazil, for appellees; Baumunk & Stelle, Brazil, of counsel.

LYBROOK, Judge.

This appeal stems from the judgment of the Clay Circuit Court reversing the decision of the Board of Zoning Appeals granting the application of defendants-appellants James and Deborah Stout to place a mobile home on certain property in Brazil, Indiana.

The following issue has been properly preserved and presented for review:

Whether an adjoining landowner allegedly aggrieved by a decision of a Board of Zoning Appeals granting an application for an improvement location permit and/or variance must, as a condition to petitioning for review by certiorari, have appeared and objected at the hearing before the board on the application.

The record reveals that on October 18, 1971, James and Deborah filed an APPLICATION FOR IMPROVEMENT LOCATION PERMIT AND CERTIFICATE OF OCCUPANCY with the Brazil Planning Administrator. The permit was sought for the placement of a mobile home on certain residentially zoned property owned by James' father, Jack Stout. Their application being denied, James and Deborah proceeded to file two forms with the Board of Zoning Appeals, these being captioned APPEAL FOR VARIATION IN THE APPLICATION OF THE REGULATIONS OF THE BRAZIL CITY ZONING ORDINANCE OR FROM ORDER, REQUIREMENT, DECISION OR DETERMINATION OF PLANNING ADMINISTRATOR and APPEAL FROM DECISION OF PLANNING ADMINISTRATOR.

Following notice by publication, the Stouts' request was considered at a public meeting of the Board of Zoning Appeals on November 1, 1971. There being no objections by persons present to the placement of the mobile home, the Board voted unanimously to grant the Stouts' application.

Thereafter, petitioners-appellees Gail, Ethel and Donald Mercer, owners of property adjoining that upon which the mobile home was to be placed, filed a petition for writ of certiorari, which was subsequently amended. Mercers' amended petition alleged that in approving the Stouts' application, the Board had illegally granted a variance from the terms of the city zoning ordinance. Defendant Board of Zoning Appeals, Deborah and James Stout, and Jack Stout each filed motions to dismiss the Mercers' amended petition. Following argument, each of defendants' motions was overruled, and the Board was ordered to make return on the writ of certiorari.

Trial of the cause resulted in a judgment reversing the Board's decision granting the Stouts' application. James and Deborah then filed their motion to correct errors which was overruled, and this appeal followed.

For the first time in this appeal, James and Deborah assert that they neither applied for nor received a variance from the terms of the city zoning ordinance. Rather, it is alleged that the nature of the proceeding before the Board was merely an appeal from the decision of the planning administrator refusing to issue an improvement location permit. From an examination of Stouts' application and the minutes of the hearing before the Board, it is difficult to discern the exact nature of the action taken by the Board. However, in the Board's return to the writ of certiorari the proceeding was generally defined as '. . . the matter of the application of James O. Stout and Deborah Stout for an improvement location permit; and an appeal by said parties for variation from the existing zoning ordinances.' Moreover, during the proceedings before the trial court, all of the parties appear to have acted upon the assumption that the Board's action was in the nature of the grant of a variance. For example, in the memorandum to their motion to dismiss, James and Deborah consistently made reference to the variance granted by the Board.

Finally, appellants did not in their motion to correct errors raise the contention which they are now urging in this appeal.

Therefore, any issue concerning the nature of the Board's decision has been waived, and we must assume that appellants were granted a variance from the terms of the zoning ordinance applicable to the property in question.

Focusing on appellants' motion to correct errors, we find that only one issue is available for review in this appeal.

Ind.Rules of Procedure, Trial Rule 59(B) requires that the motion be specific rather than general and that it be accompanied by a statement of the facts and grounds upon which errors are based. Further, subsection (G) of the rule states:

'. . . such motion shall separately specify as grounds therefor each error relied upon however and whenever arising up to the time of filing such motion.'

In Bennett v. State (1973), Ind.App., 304 N.E.2d 827, this court said:

'The requirement of specificity of the facts and grounds upon which errors are based has been often stated in recent case law: Spivey v. State (1971), Ind., 274 N.E.2d 227; Matthew v. State (1972), Ind.Ct.App., 289 N.E.2d 336; Weingart v. State (1973), Ind.Ct.App., 301 N.E.2d 222; State v. Hladik (1973), Ind.Ct.App., 302 N.E.2d 544; Daben Realty Co., Inc. v. Stewart (1972), Ind.Ct.App., 290 N.E.2d 809; Indiana Dept. of State Revenue v. Frank Purcell Walnut Lumber Co., Inc. (1972), Ind.Ct.App., 282 N.E.2d 336; Farley v. Farley (1973), Ind.Ct.App., 300 N.E.2d 375; Ostric v. St. Mary's College (1972), Ind.Ct.App., 288 N.E.2d 565.

'While the motion to correct errors serves as the complaint on appeal, its primary purpose is to afford the trial court the opportunity to rectify errors it has committed. Bud Gates, Inc. v. Jackson (1970), 147 Ind.App. 123, 258 N.E.2d 691.

'Without being informed by a specific statement of the facts and grounds on which the claimed error is based, the trial judge cannot rectify his errors, if any. Were it otherwise, an appellant could propel himself into this or the Supreme Court by general statements of claimed errors, detailed at leisure after his motion to correct errors is overruled. Such a gigantic bootstrap by an appellant is precisely what the rules of appellate procedure are designed to avoid. See cases cited above.'

The only issue specifically defined by appellants' motion to correct errors is whether the Mercers had standing to petition for review of the Board's decision by certiorari. Hence, we proceed to a determination of that issue.

Appellants argue that only those persons who appeared and were parties to the hearing before the Board of Zoning Appeals could petition for review by certiorari and that since the Mercers failed to appear or enter an objection, their petition seeking review should have been dismissed.

IC 1971, 18--7--5--87, Ind.Ann.Stat. § 53--783 (Burns 1964), contains the definition of persons entitled to review which is applicable to the instant case. That section provides:

'Every decision of the board of zoning appeals shall be subject to review by certiorari.

'Any person or persons, firm or corporation jointly or severally aggrieved by any decision of the board of zoning appeals, may present to the circuit or superior court of the county in which the premises affected is located a petition duly verified, setting forth that such decision is illegal in whole or in part, and specifying the grounds of the illegality.

The petition shall be presented to the court within thirty (30) days after the date of the decision and the order of the boards of zoning appeals complained of.

'No change of venue from the county in which the premises affected is located shall be had in any cause arising under the provisions of this section.'

The scope of the term 'aggrieved' as found in this section was recently considered by this court in City of Hammond v. Board of Zoning Appeals (1972), Ind.App., 284 N.E.2d 119. Therein, Judge Staton quoted extensively from Metropolitan Dev.Comm. v. Cullison (1972), Ind.App., 277 N.E.2d 905 (Rehearing denied, 279 N.E.2d 812). ¹ We likewise find useful the following lowing material from Cullison:

'The word 'aggrieved' is and has been used in our statutes for many years to describe persons or parties authorized by the statute to seek judicial review of decisions by boards and agencies of government and, in at least one instance, those who may recover penalty for the violation of a statute. It has also, as previously noted, been used for at least fifty years in Indiana laws authorizing zoning ordinances. One statute granting the right of appeal to the Supreme Court has also long given that right only to 'the party aggrieved'. It is an appeal pursuant to that statute which has provided us with our only comprehensive definition of 'aggrieved'. McFarland v. Pierce (1897), 151 Ind. 546, 548, 45 N.E. 706, said of that statute:

'The word 'aggrieved' in the statute refers to a substantial grievance, a denial of some personal or property right, or the imposition upon a party of a burden or obligation.' People v. Kent, 4 N.Y.Wkly.Dig. 62; Reid v. Vanderheyden, 5 Cow. (N.Y.) 719; Steele v. White, 2 Paige, (N.Y.) 478; Colden v. Botts, 12 Wend. 234; Kelly v. Israel, 11 Paige, (N.Y.), 147; Card v. Bird, 10 Paige, (N.Y.) 426; Bush v. (Rochester, etc.) Bank, 48 N.Y. 659; Hall v. Brooks, 89 N.Y. 33; Grow v. Garlock, 29 Hun, 598; People v. Common Council of City of Troy, 82 N.Y. 575. 'To be 'aggrieved' is to have a legal right, the infringement of which by the decree complained of will cause pecuniary injury.' Hewitt's Appeal, 58 Conn. (223) 226, 20 A. 453; Dickerson's Appeal, 55 Conn. 223, 10 A. 194, and 15 A. 99; Andress v. Andress, 46 N.J.Eq. 528, 22 A. 124; Swackhamer v. Kline's Adm'r, 25 N.J.Eq. 503; Parker v. Reynolds, 32 N.J.Eq. Eq. (290) 293. 'The appellant must have a legal interest which...