Wildwood Park Community Ass'n v. Fort Wayne City Plan Commission, No. 3-578A124

Docket NºNo. 3-578A124
Citation182 Ind.App. 578, 396 N.E.2d 678
Case DateOctober 25, 1979
CourtCourt of Appeals of Indiana

Page 678

396 N.E.2d 678
182 Ind.App. 578
WILDWOOD PARK COMMUNITY ASSOCIATION et al., Appellants
(Petitioners Below),
v.
The FORT WAYNE CITY PLAN COMMISSION et al., Appellees
(Respondents Below).
No. 3-578A124.
Court of Appeals of Indiana, Third District.
Oct. 25, 1979.
Rehearing Denied Nov. 13, 1979.

[182 Ind.App. 579]

Page 679

Ralph R. Blume, Stanley A. Levine, Fort Wayne, for appellants.

Clifford E. Simon, Jr., Fort Wayne, for The Fort Wayne City Plan Commission.

Harry W. Scott, Jay M. De Voss, Decatur, Richard E. Beers, Fort Wayne, for all other appellees.

STATON, Judge.

On January 25, 1977, the various owners of 106.6 acres of real estate located near the intersection of highways 14 and 24 in Fort Wayne, Indiana, filed an application for a "Shopping Center Permit" with that municipality's Plan Commission. In their application, the landowners sought permission for the proposed construction of "Lakewood Shopping Center" on their property. After the Plan Commission had conducted a public hearing on the application, its members voted to grant the permit to build the shopping center.

Various neighborhood residents, together with the Wildwood Park Community Association (hereinafter collectively referred to as "Wildwood"), an organization generally comprised of residents of the area surrounding the property to be used as a shopping center, sought review of the Plan Commission's decision by filing a writ of certiorari in the Allen County Circuit Court. Pursuant to the court's issuance of the writ, the Plan Commission tendered to the court a transcript of the evidence given at public hearing. Based on the transcript of evidence, as well as additional testimony which was presented at a separate hearing on the matter, the judgment of the court affirmed the granting of the permit by the Plan Commission.

Wildwood here appeals from that judgment, and raises the following issues for our review: 1

Page 680

(1) Whether the trial court erred when it concluded that Wildwood was not "aggrieved" by the decision of the Plan Commission?

(2) Whether the trial court erred in its conclusion that the Plan Commission acted within the scope of its statutory power when it granted the shopping center permit?

(3) Whether the trial court erred in finding that the Plan Commission's approval of the Lakewood development plan was supported by substantial evidence of probative value?

(4) Whether the trial court erred by failing to find that the Plan Commission had not complied with the requirement that "on-site inspections" be made part of the record?

[182 Ind.App. 581] (5) Whether the trial court's findings of fact and conclusions of law complied with the requirements of Trial Rule 52?

We conclude that the trial court erred when it concluded that the Plan Commission acted within its statutory powers when it granted the permit to construct Lakewood Shopping Center. In all other respects, the trial court is affirmed.

I.

"Aggrieved" Party

Wildwood contends that the trial court erred when it concluded that the Wildwood Park Community Association was not "aggrieved" by the approval of the shopping center permit. Absent status as an "aggrieved" party, of course, Wildwood lacked the statutorily defined standing which is necessary to obtain judicial review of a Plan Commission decision. IC 1971, 18-7-5-57, Ind.Ann.Stat. § 53-755 (Burns Code Ed.), Incorporating by reference IC 1971, 18-7-5-87, Ind.Ann.Stat. § 53-783 (Burns Code Ed.). 2 Incongruously, the trial court's determination that Wildwood was not "aggrieved" by the Commission's decision and hence not entitled to judicial review of it was entered at the Conclusion of the certiorari proceedings, In conjunction with the court's resolution of the substantive merits of Wildwood's claim. If the trial court's determination that Wildwood lacked standing to prosecute its claim is sustained, all other actions of the court will be rendered void and this appeal put to rest.

In its petition for a Writ of Certiorari, Wildwood alleged that its membership was composed of approximately "170 families living in the [182 Ind.App. 582] immediate vicinity" of the proposed site of Lakewood Shopping Center, that the Association itself owned property adjacent to the 106.6 acre tract, and that the Association and its individual members were "affected and aggrieved" by the Commission's grant of the permit. Intended to establish Wildwood's standing to challenge the Commission's actions, the allegations ostensibly were designed to comport with the Court's decision in Stout v. Mercer (1974), 160 Ind.App. 454, 312 N.E.2d 515. There, the statutory term "aggrieved" party was interpreted to embrace landowners who wished to challenge the grant of a variance for a tract adjacent to their property. Writing for the unanimous Court, Judge Lybrook explained:

"It cannot be doubted that adjoining or surrounding landowners may be directly affected by the grant of a variance to a particular applicant. The use to which a tract of land is put may have a direct effect upon the value of surrounding

Page 681

properties. Adjoining or surrounding landowners may therefore be persons 'aggrieved' within the meaning of Burns § 53-783 as that section is construed in City of Hammond, supra. . . ."

City of Hammond v. Board of Zoning Appeals (1974), 152 Ind.App. 480, 284 N.E.2d 119. Id. at 520, 312 N.E.2d at 520. As the Court reasoned in Stout, so Wildwood alleged that it was "affected and aggrieved" by virtue of its proximity to the proposed site.

In its Response to Wildwood's petition, the Plan Commission did not address, let alone dispute, the allegations made by Wildwood with respect to its legal capacity to obtain judicial review. Subsequently, other respondents (generally composed of the developers of the proposed "Lakewood Shopping Center") filed a "Motion for Order Denying Issuance of Writ of Certiorari and Motion to Dismiss", wherein the following contention concerning Wildwood's allegation was raised.

"(e) Rhetorical paragraphs 5 and 6 allege that the petitioners are 'aggrieved parties' because they live in the 'immediate vicinity' but said paragraphs fail to allege any pecuniary or personal interests in the property or the decision of the Plan Commission."

Respondents-developers thus argued that the facts pleaded were not sufficient to establish Wildwood's status as an aggrieved party; they did not, however, specifically contend that Wildwood was not in fact aggrieved by the Commission's decision.

[182 Ind.App. 583] The trial court overruled the developers' motion to deny issuance of the Writ and dismiss the cause. The Writ issued, and the trial court held a hearing on the merits of Wildwood's claim that the Plan Commission had acted illegally in granting the permit. The question of Wildwood's standing to obtain judicial review was not raised by the Plan Commission or other respondents at the hearing, nor did the parties address that matter. Rather, they focused their presentation of evidence and legal arguments on the substantive issues raised by Wildwood in its petition.

Only when the trial court entered its "Findings of Fact and Conclusions of Law" did the question of Wildwood's capacity to challenge the Plan Commission's decision surface again. The court's conclusions, which were otherwise directed to the substantive contentions of Wildwood, included the following:

"Twelve. There is no sufficient showing that the Petitioners were aggrieved by the approval of the shopping center permit, and in the absence of such showing it is to be presumed that the allegation of the Petition with reference thereto is not sustained."

The court's approach to and disposition of the matter of Wildwood's standing reflects its misconceptions with respect to the manner in which a party's legal capacity to challenge a Plan Commission decision must be raised.

The legal capacity of a party to prosecute its claim is a matter which affects the trial court's Jurisdiction over the particular case not its jurisdiction over the subject matter. Board of Trustees, Etc. v. City of Fort Wayne (1978), Ind., 375 N.E.2d 1112, 1117; Farley v. Farley (1973), 157 Ind.App. 385, 300 N.E.2d 375, 383. Unlike subject matter jurisdiction, which cannot be waived by a party and may be raised, Sua sponte, by the court, jurisdiction over the particular case may be waived by the failure to make a specific and timely objection. Board of Trustees, Etc. v. City of Fort Wayne, supra; Decatur County R. E. Mem. Corp. v. Public Service Co. (1971), 150 Ind.App. 193, 275 N.E.2d 857, 860.

At no point in the certiorari proceedings below did the Plan Commission or developers specifically object that Wildwood was not in fact [182 Ind.App. 584] aggrieved by its decision. In its Response to Wildwood's Petition for a Writ of Certiorari, the Commission did not dispute Wildwood's allegations with respect to standing. Developers' Motion to Dismiss was predicated merely on the basis that the allegations contained in Wildwood's petition were insufficient to establish Wildwood's status as an aggrieved party. The Plan Commission and developers thus waived

Page 682

their right to object to Wildwood's legal capacity to challenge its decision. J. I. Case Co. v. Sandefur (1964), 245 Ind. 213, 197 N.E.2d 519, 521; Bowman v. Holsopple (1973), 155 Ind.App. 272, 292 N.E.2d 274, 277; Metropolitan Dev. Com'n of Marion Cty. v. Camplin (1972), 153 Ind.App. 622, 288 N.E.2d 569, 571. The trial court had subject matter jurisdiction over the case by virtue of the provisions of IC 1971, 18-7-5-57, Supra 3; it could not raise, Sua sponte, the question of its jurisdiction over the particular case, since the Plan Commission and developers had failed to raise the issue.

Moreover, the trial court's conclusion that Wildwood was not aggrieved by the Commission's decision is predicated on an incorrect statement of law. The respondents' failure to contest the veracity of the allegations made...

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15 practice notes
  • Stockberger v. Meridian Mut. Ins. Co., No. 3-278A46
    • United States
    • October 25, 1979
    ...necessary information. Although Stockberger expected to receive confirmation of the transfer, or notice of a premium adjustment, within [182 Ind.App. 578] a reasonable time, he did not inquire further when he did not receive notice. Stockberger did not consult with Clary again regarding the......
  • Collins v. Thakkar, No. 30A01-8911-CV-460
    • United States
    • Indiana Court of Appeals of Indiana
    • April 10, 1990
    ...not have subject matter jurisdiction. See Wildwood Park Community Association v. Fort Wayne City Plan Commission Page 512 (1979), Ind., 396 N.E.2d 678; Home Builder's Association of Indiana, Inc. v. Indiana Utility Regulatory Commission (1989), 3d Dist.Ind.App., 544 N.E.2d 181 (Sullivan, J.......
  • Schenkel v. Allen County Plan Commission, No. 3-679A172
    • United States
    • Indiana Court of Appeals of Indiana
    • July 14, 1980
    ...where by statute it enjoys ultimate authority. See generally, Wildwood Park Community Ass'n v. Fort Wayne Plan Comm'n (1979), Ind.App., 396 N.E.2d 678, 686-80 (Petition for transfer pending). Being advisory in nature, recommendations lack the element of finality necessary to judicial review......
  • FDL v. Steuben County Waste Watchers, Inc., No. 49A02-0005-CV-301.
    • United States
    • Indiana Court of Appeals of Indiana
    • June 8, 2001
    ...during the administrative proceedings, it has waived this issue on appeal. See Wildwood Park Cmty. v. Fort Wayne City Plan Comm'n, 182 Ind.App. 578, 583-84, 396 N.E.2d 678, 681-82 (1979).749 N.E.2d 1256 Under the Act, "[i]f a petition for [administrative] review is granted, the petitioner b......
  • Request a trial to view additional results
15 cases
  • Stockberger v. Meridian Mut. Ins. Co., No. 3-278A46
    • United States
    • October 25, 1979
    ...necessary information. Although Stockberger expected to receive confirmation of the transfer, or notice of a premium adjustment, within [182 Ind.App. 578] a reasonable time, he did not inquire further when he did not receive notice. Stockberger did not consult with Clary again regarding the......
  • Collins v. Thakkar, No. 30A01-8911-CV-460
    • United States
    • Indiana Court of Appeals of Indiana
    • April 10, 1990
    ...not have subject matter jurisdiction. See Wildwood Park Community Association v. Fort Wayne City Plan Commission Page 512 (1979), Ind., 396 N.E.2d 678; Home Builder's Association of Indiana, Inc. v. Indiana Utility Regulatory Commission (1989), 3d Dist.Ind.App., 544 N.E.2d 181 (Sullivan, J.......
  • Schenkel v. Allen County Plan Commission, No. 3-679A172
    • United States
    • Indiana Court of Appeals of Indiana
    • July 14, 1980
    ...where by statute it enjoys ultimate authority. See generally, Wildwood Park Community Ass'n v. Fort Wayne Plan Comm'n (1979), Ind.App., 396 N.E.2d 678, 686-80 (Petition for transfer pending). Being advisory in nature, recommendations lack the element of finality necessary to judicial review......
  • FDL v. Steuben County Waste Watchers, Inc., No. 49A02-0005-CV-301.
    • United States
    • Indiana Court of Appeals of Indiana
    • June 8, 2001
    ...during the administrative proceedings, it has waived this issue on appeal. See Wildwood Park Cmty. v. Fort Wayne City Plan Comm'n, 182 Ind.App. 578, 583-84, 396 N.E.2d 678, 681-82 (1979).749 N.E.2d 1256 Under the Act, "[i]f a petition for [administrative] review is granted, the petitioner b......
  • Request a trial to view additional results

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