Time-Low Corp. v. City of LaPorte Bd. of Zoning Appeals, TIME-LOW

• Decision Date: 18 December 1989
• Docket Number: No. 46A03-8906-CV-256,TIME-LOW,46A03-8906-CV-256
• Citation: 547 N.E.2d 877
• Parties: CORPORATION, an Indiana Corporation, Appellant (Petitioner Below), v. CITY OF LaPORTE BOARD OF ZONING APPEALS, Arlo Westphal, Jayne Westphal, William Boklund, and Cathy Boklund, et al., Appellees (Respondents Below).
• Court: Indiana Appellate Court

Page 877

547 N.E.2d 877

TIME-LOW CORPORATION, an Indiana Corporation, Appellant (Petitioner Below), v. CITY OF LaPORTE BOARD OF ZONING APPEALS, Arlo Westphal, Jayne Westphal, William Boklund, and Cathy

Boklund, et al., Appellees (Respondents Below).

No. 46A03-8906-CV-256.

Court of Appeals of Indiana,

Third District.

Dec. 18, 1989.

William H. Wagner, John E. Hughes, and Katharine E. Gerken, Hoeppner, Wagner and Evans, Valparaiso, for appellant.

David H. McCain, Sallwasser and McCain, LaPorte, for appellee, City of LaPorte Bd. of Zoning Appeals.

Shaw R. Friedman, Boklund, Yandt and Friedman, P.C., LaPorte, for appellees, Arlo Westphal, Jayne Westpahl, William Boklund and Cathy Boklund, et al.

William E. Hedge, Raelson, Osborn, Roule, Baugher and Hedge, LaPorte, for appellees, William E. Hedge and Mary Hedge.

HOFFMAN, Judge.

Petitioner-appellant Time-Low Corporation appeals the trial court's decision affirming the LaPorte Board of Zoning Appeals.

The facts relevant to this appeal disclose that on November 13, 1987, Time-Low purchased real estate in LaPorte, Indiana upon which a filling station had been operated. This station had for years sold gasoline, petroleum products and did general automotive repair and towing services.

On November 18, 1987, Time-Low obtained a building permit from the City of LaPorte. Time-Low proposed to remodel the building on the Time-Low property to operate a convenience store and to continue the sale of gasoline. Time-Low filed the building plans with the city engineer.

After issuance of the building permit the neighbors of Time-Low appealed the issuance of the building permit. A hearing was held on December 8, 1987 and the Board of Zoning Appeals affirmed the issuance of the building permit limiting the hours in which the convenience store could do business. Consequently Time-Low filed its writ of certiorari with the trial court. The Board's decision was affirmed by the trial court. Time-Low now brings this appeal.

The following issues are raised on appeal:

(1) whether Time-Low's writ of certiorari properly named all adverse parties;

(2) whether the Board properly found that remodeling and a change of use were occurring; and

(3) whether the Board of Zoning Appeals in reviewing the grant of the building permit had the authority to restrict Time-Low's hours of operation.

I.

The appellees, specifically the neighbors, the Westphals, the Boklunds, and the Hedges, contend that Time-Low's writ of certiorari should have been dismissed for failure to name each adverse party. They claim there were additional property owners shown on written remonstrances who should have been named as parties pursuant to IND. CODE Sec. 36-7-4-1005 (1988 Ed.). The relevant portion of this section reads:

"(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, as shown by the record of the appeal in the office of the board of zoning appeals. An adverse party is any property owner who the record of the board of zoning appeals shows had appeared at the hearing before the board in opposition to the petitioner. If the record shows a written remonstrance or other document opposing the request of the petitioner and containing more than three (3) names, the petitioner shall have notice served on the three (3) property owners whose names appear first on the remonstrance or document."

Time-Low submitted the affidavit of Grace Rumely, the secretary of the Board of Zoning Appeals, to the trial court. Ms. Rumely avers in her affidavit that "[t]he record of the appeal in the BZA office concerning the Time-Low Corporation matter on December 8, 1987, does not contain any written remonstrances." Furthermore, the minutes from the meeting do not contain the names of the neighbors that the appellees, the Westphals, the Boklunds, and the Hedges, claim should have been named as parties.

Time-Low was entitled to rely on the record and minutes in the office of the Board of Zoning Appeals. Time-Low fulfilled the notice requirement of IND. CODE Sec. 36-7-4-1005 (1988 Ed.).

II.

The neighbors appealed the issuance of the building permit claiming that a change in a nonconforming use must be approved by the Board of Zoning Appeals. After a hearing on the appeal the Board of Zoning Appeals held:

"1. The building located at what is commonly known as 1038 Indiana Avenue may be remodeled, as provided in the building permit issued by the office of the City Engineer on November 18, 1987; and

2. The previous nonconforming use of the property at 1038 Indiana Avenue as a service station may be changed to a convenience store, providing that the hours of operation be limited to 6:00 a.m. to 10:00 p.m." (Emphasis added.)

This Court's standard of review was explained in detail in Porter County Bd. of Zon. App. v. Bolde (1988), Ind.App., 530 N.E.2d 1212, 1215:

"We presume that the determination of the Board, as an administrative agency with expertise in zoning matters, is correct. The Board's decision should not be reversed unless it is arbitrary, capricious, or an abuse of discretion. Thus, a reviewing court does not conduct a trial de novo and may not substitute its decision for that of the Board. Too, courts may not make findings for the agency. It is the agency's duty to make the findings. Courts may only review them to determine whether the findings are supported by evidence in the record. Thus, in reviewing the trial court's findings of fact and conclusions of law, we necessarily also review the Board's findings of fact." (Citations omitted.)

The applicable governing sections of the LaPorte Zoning Ordinance supporting the Board's finding read as follows:

"18.57.030 Change to other nonconforming use.

A. A nonconforming use may not be changed to any other nonconforming use without the permission of the board of zoning appeals regardless of whether or not structural changes are made or required to be made in the building or premises.

B. A nonconforming use changed to a conforming use may not thereafter be changed back to any nonconforming use without the permission of the board of zoning appeals. (Prior code Sec. 29-96)

* * * * * *

18.57.060 Remodeling, addition to or alteration of existing use.

A lawful nonconforming use existing at the time of the passage of the ordinance codified in this title shall not be remodeled, added to or structurally altered without the permission of the board of zoning appeals. (Prior code Sec. 29-99)"

Appellant contends that it was extending its retail sales into an abandoned service which is permitted under the ordinance and is not a change of use. Appellant refers to the LaPorte Zoning Ordinance Sec. 18.57.020(C) which provides:

"The extension of the use to a portion of a building which portion was arranged or designed for such nonconforming use at the time of the...