Town of Newburgh v. Stephenson, 1--174A8

• Decision Date: 30 September 1974
• Docket Number: No. 1--174A8,1--174A8
• Citation: 161 Ind.App. 597,316 N.E.2d 855
• Parties: The TOWN OF NEWBURGH, Indiana, et al., Defendants (Respondents)-Appellants, v. John M. STEPHENSON et al., Plaintiffs (Petitioners)-Appellees.
• Court: Indiana Appellate Court

Page 855

316 N.E.2d 855

161 Ind.App. 597

The TOWN OF NEWBURGH, Indiana, et al., Defendants (Respondents)-Appellants, v. John M. STEPHENSON et al., Plaintiffs (Petitioners)-Appellees.

No. 1--174A8.

Court of Appeals of Indiana, First District.

Sept. 30, 1974.

Dennis J. Dewey, Newburgh, John D. Clouse, Bates, Ewers & Davis, Evansville, for defendants-appellants.

P. Michael Mitchell, Cox & Mitchell, Evansville, for plaintiffs-appellees.

ROBERTSON, Presiding Judge.

This is an appeal by the defendant-appellant (Jones) from a ruling by the Warrick Circuit Court which granted a writ of certiorari filed by petitioner-appellee (Stephenson) and reversed the decision by the Newburgh Board of Zoning Appeals granting a variance.

Jones cites the following errors:

(1) The Court should not have reversed the decision of the Board of Zoning Appeals since the decision was supported by substantial evidence;

(2) The Court should have sustained his motion to dismiss since there was another action pending on the same subject between the same parties in the same court;

(3) The Court erred in its findings of fact and conclusions of law.

We affirm.

Jones petitioned the Board of Zoning Appeals for a variance to grant him a commercial use in a residential district. The Board granted the variance. Stephenson filed a petition for a writ of certiorari with the Warrick Circuit Court contending that the Board's decision was in violation of the Newburgh Zoning ordinance. The Court granted the writ, reversed the decision and remanded the matter to the board to either reconsider said variance and deny same, or in the alternative, to make specific findings of fact required by the town ordinance and state statutes.

The Board reheard the matter, made a complete transcript of the hearing and again granted the variance. Stephenson then filed another petition for a writ of certiorari. The Court again granted the writ and reversed the grant of the variance.

Jones first contends that the Board's decision was supported by substantial evidence and should not have been reversed.

A Board of Zoning Appeals has the sole power within its discretion to grant a variance to a zoning ordinance. Light Co., Inc. v. Haughton et al. (1967), 141 Ind.App. 93, 226 N.E.2d 341; Board of Zoning Appeals v. Waintrop (1935), 99 Ind.App. 576, 193 N.E. 701; Metropolitan Board of Zoning Appeals v. Rumple (1973), Ind., 301 N.E.2d 359; Fryer v. City of New Albany (1963), 135 Ind.App. 454, 194 N.E.2d 417.

However, this power is limited by the provisions in that ordinance. Nelson v. Board of Zoning Appeals (1959), 240 Ind. 212, 162 N.E.2d 449; Light Co. v. Haughton (1967), 141 Ind.App. 93, 226 N.E.2d 341; Metropolitan Development Commission v. Camplin (1972), Ind.App., 288 N.E.2d 569.

The Newburgh Zoning Ordinance contained the following:

'Under no circumstances may the Board grant a variance to allow a use not permitted in Article 3 ¹ of this ordinance in the district involved.'

The action of the board in granting Jones a commercial use in a residential district was in direct conflict with this provision.

Thus, irrespective of Jones' contention that the board's decision was supported by sufficient evidence, the decision was prohibited by the terms of the ordinance. The trial court was therefore correct in reversing the grant of the variance.

Jones next contends that the court erred in overruling his motion to dismiss.

His contention is based on the following proceedings below.

Stephenson filed a petition for certiorari with the circuit court. The court granted the petition, reversed the proceedings and remanded the case to the board with instructions to either deny the variance or follow the statutory requirements. In accordance with the court's order, the Board reconsidered the case and again granted the variance.

Stephenson then filed another petition for certiorari to review the second decision of the board. Jones made a motion to dismiss which was overruled.

Jones contends that the motion to dismiss the second petition for certiorari should have been granted for two reasons; res judicata and Trial Rule 12(B) (8). He argues that res judicata was a bar to the second action since the matter had been fully decided in the first action. It is clear, however, that the issues on the merits were not determined. The court remanded the case to the board for further proceedings. Upon the board's decision to again grant the variance, Stephenson followed the only remedy available to him under the applicable stat...