Vehslage v. Rose Acre Farms, Inc.

• Decision Date: 25 February 1985
• Docket Number: No. 1-1283A375,1-1283A375
• Citation: 474 N.E.2d 1029
• Parties: Mary VEHSLAGE, John Vehslage, Eldena Hoene, Francis Otte and Arthur Moorman Farm, Inc., Jesse Colliver, Myna Colliver, Charles Cordes, Elsie Hague, Mary Catherine Hall, Robert G. Hall, Carolyn Lerch, Mary Ellen Stockover and George Vehslage, Charles Cordes, Elsie Hague, Jesse Colliver, Myna Colliver, Mary Catherine Hall, Robert G. Hall, Carolyn Lerch, Mary Ellen Stockover, George Vehslage, Don Plummer and Deloris Plummer, Appellants, v. ROSE ACRE FARMS, INC. and Board of Zoning Appeals of Jackson County, Indiana, Appellees.
• Court: Indiana Appellate Court

Page 1029

474 N.E.2d 1029

Mary VEHSLAGE, John Vehslage, Eldena Hoene, Francis Otte and Arthur Moorman Farm, Inc., Jesse Colliver, Myna Colliver Charles Cordes, Elsie Hague, Mary Catherine Hall, Robert G Hall, Carolyn Lerch, Mary Ellen Stockover and George Vehslage, Charles Cordes, Elsie Hague, Jesse Colliver, Myna Colliver, Mary Catherine Hall, Robert G. Hall, Carolyn Lerch, Mary Ellen Stockover, George Vehslage, Don Plummer and Deloris Plummer, Appellants, v. ROSE ACRE FARMS, INC. and Board of Zoning Appeals of Jackson County, Indiana, Appellees.

No. 1-1283A375.

Court of Appeals of Indiana First District.

Feb. 25, 1985.

Ted B. Lewis, Donn H. Wray, Stewart, Irwin, Gilliom, Fuller & Meyer, Indianapolis, Thomas R. Haley, Haley & Farrow, Seymour, for appellants.

John M. Lewis, Seymour, for appellee, Rose Acre Farms, Inc.

John F. Rothring, Rothring, Lambring & Black, Seymour, for appellee, Bd. of Zoning Appeals.

NEAL, Judge.

STATEMENT OF THE CASE

This appeal is a consolidation of three administrative decisions of the Board of Zoning Appeals of Jackson County, Indiana (Board) granting special exceptions to Rose Acre Farms, Inc. (Rose Acre) over the objections of remonstrators. In each case, the trial court affirmed the Board's decision and findings.

STATEMENT OF THE FACTS

The procedural history of these three administrative proceedings is complex. We will attempt to consolidate the facts of all three cases into one summary; any minor factual differences, if relevant to our decision, will be pointed out in the Discussion, infra.

In each case, the proceeding was commenced by Rose Acre's filing of an Application for Improvement Location Permit and Certificate of Occupancy with the Board. The application was treated as a request for special exception pursuant to Jackson County zoning ordinances. The application requested, in the Vehslage and Colliver cases, approval of an agricultural confined poultry feeding operation. In Cordes, the application requested approval of an expanded confined poultry feeding operation on the Cort Acres site. In each case, the Board conducted a hearing for the special exception request. The Board consisted of five members, the names of whom varied depending on the year in which application was made. At the hearing, several people, including remonstrators, were allowed to speak concerning the application for special exception. However, no witnesses were sworn to testify and no exhibits were authenticated and introduced into evidence.

Section 3.3 of the Jackson County zoning ordinances, states in relevant part:

"(a) The Board may grant a special exception for a use in a district if after a hearing ... it finds that: ... (3) granting the exception will not subvert the general purposes served by this ordinance and will not materially and permanently injure other property of uses in the same district or vicinity."

Remonstrators testified as to the negative impact the proposed projects would have on the value of their own property. They, and others, identified such problems as foul odors, rats, trash, traffic, and devaluation of the property adjoining the proposed feeding operations.

In each case, however, the Board granted the exception. At this juncture in the case histories, though, things begin to get a little more complicated.

Once the Board granted the exception in Vehslage, remonstrators petitioned for judicial review. The trial court found that the Board failed to present a sufficient record for review; once the Board filed a supplemental response, the court entered judgment for Rose Acre. Vehslage and Colliver, infra, were consolidated and went up on appeal to this court, which reversed the trial court's decision, stating that the Board had failed to make written findings of facts as required by statute. The cases were remanded and the Board, now comprised of different members, issued such findings. In both decisions, only three of the Board members that made the findings of fact had been members of the Board when the original hearing was held. Of those three, only two members concurred in all the findings; the third member who had been present at the original hearing disagreed with Findings of Fact 3 and 4.

Finding of Fact 3 states that granting the exception will not subvert the general purpose served by the Zoning Ordinance of Jackson County for several reasons; Finding of Fact 4 states that granting the exception will not materially and permanently injure other property or uses in the same district and vicinity for several reasons.

In Cordes, the trial court granted judicial review of the Board's decision to grant the special exception and then withheld its decision until the Court of Appeals' decision was handed down in Vehslage. Following that decision, the trial court remanded the Cordes case to the Board for findings of fact; as in the other cases, the Board which made the findings was composed of different members than those individuals who had conducted the original hearing. As before, too, one of the original three members disagreed with a portion of the findings.

ISSUES

Appellants raise the following issues, restated by us:

I. Were remonstrators deprived of due process because the successor Board, on remand, submitted written findings of fact to support the issuance of a special exception by its predecessor Board?

II. Did the hearing in the instant case satisfy due process requirements?

I. Successor Board's authority--due process.

An administrative agency has the duty to make a finding of the pertinent facts on which its decision is based in order to facilitate judicial review. Metropolitan Board of Zoning Appeals of Marion County v. Graves, (1977) Ind.App., 360 N.E.2d 848. The purpose of this requirement is to prevent "judicial intrusion into matters committed to administrative discretion by the legislature". State ex rel. Newton v. Board of School Trustees, (1984) Ind.App., 460 N.E.2d 533, 541. Further, in the case in which the Board fails to make such findings and the cause is remanded to the Board, the findings are generally to be made without further hearing or presentation of evidence. Habig v. Harker (1983) Ind.App., 447 N.E.2d 1114. This was the course of events in Vehslage and Colliver upon remand by the Court of Appeals.

Appellants describe a "fatal flaw" of the findings: the findings made in 1980 were entered by a majority consisting of three members of a five-member board. However, they state, of the three members comprising the majority, only two heard the evidence in 1976 (and in 1978 in Cordes ). Thus, remonstrators argue, "they have been deprived of their basic due process right to a fact-finder who has heard the evidence upon which he rules". Appellants' brief, pg. 33. Actually, remonstrators' argument in essence posits that a newly-constituted board can overrule the decision made by the prior board, which of course is their aim.

"... [I]t is a general rule that in the absence of a statute to the contrary, due process or a fair hearing is not denied by the mere fact that an otherwise authorized person makes or participates in the making of a decision without having been present when the evidence was taken. In this connection it is recognized that to 'hear' relates, not to physical presence at the taking of evidence, but to certain procedural minimums to ensure an informed judgment by the one who has the responsibility of making the final decision and order."

2 Am.Jur.2d Administrative Law, Sec. 437 (1962).

Our research of Indiana case law revealed no decision which addresses this particular subject; turning to foreign jurisdictions, however, we found the content of the above-cited-language reiterated in several cases.

The Vermont Supreme Court addressed this issue in Lewandowski v. Vermont State Colleges, (1983) 142 Vt. 446, 457 A.2d 1384, a case of first impression for it. The court described the appellant's due process claim, stating that the essence of it is "whether the decision of an administrative tribunal is invalidated by the participation of one or more members who were absent from a hearing at which evidence was taken". Lewandowski, supra, at 1387.

"... we are satisfied that the majority of cases hold that in order to comply with due process it is only required that members not present when testimony is taken review the testimony before participating in the decision. 2 K. Davis, Administrative Law Treatise Sec. 11.01-11.04 (1958); see e.g., McGraw Electric Co. v. United States, 120 F.Supp. 354 (E.D.Mo.), aff'd, 348 U.S. 804, 75 S.Ct. 45, 99 L.Ed. 635 (1954); Rothkoff v. Ratner, 104 Misc.2d 204, 428 N.Y.S.2d 138 (1980); Bruns v. Department of Registration & Education, 59 Ill.App.3d 872, 17 Ill.Dec. 189, 376 N.E.2d 82 (1978); State Board of Funeral Directors v. Cieslak, 24 Pa.Commw. 315, 355 A.2d 590 (1976); Clairborne v. Coffeyville Memorial Hospital, 212 Kan. 315, 510 P.2d 1200 (1973). See generally, Annot., 18 A.L.R.2d 606 (1951). We therefore follow the majority rule, and hold that on the facts presented here, where a quorum of administrative officers has been present throughout, and where the whole tribunal has carefully reviewed the record prior to rendering a decision, grievant was not denied due process of law."

Id. at 1387-88.

The Pennsylvania case of The State Board of Funeral Directors v. Cieslak, (1976) 24 Pa.Commw.Ct. 315, 355 A.2d 590 is closer factually to the case at hand.

In Cieslak, a funeral director contested a 1975 order of the State Board of Funeral Directors which suspended his license to practice his profession for six months. The hearings were held in 1973 and Cieslak was found in violation of several regulations. Cieslak asserted in part that the Board's delay in rendering its decision and the consequent change in the Board's membership violated his due process rights. Cieslak, supra, 355 A.2d at 593. As to the first part of Cieslak's claim, the court determined that he had proved no...