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Legal nullity sends zoning decision back to BZA

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The Indiana Court of Appeals ruled that a matter brought by the owners of a cottage on Lake Gage in Steuben County be remanded to the Steuben County Board of Zoning Appeals because the BZA’s decision granting the homeowners a development standards variance with a void condition was a legal nullity.

In James Mies and Janice Mies v. Steuben County Board of Zoning Appeals, 76A03-1112-PL-564, the COA affirmed the decision of the trial court.

After a contractor hired by the Mieses failed to obtain the necessary permits for a new deck and stairs, he attempted to remedy the situation by seeking a post-construction variance for the newly constructed deck and stairs because neither complied with a zoning ordinance requiring a 24-foot lakefront setback.

The Board of Zoning Appeals approved the variance for the stairs with the condition that the deck had to be brought into compliance with the 24-foot setback. The homeowners refused to comply, arguing that the board lacked statutory authority to impose conditions on the variance, which made the condition void or, in the alternative, that the newly constructed deck and stairs did not violate the zoning ordinance because it maintained its nonconforming status.

The trial court reversed the BZA decision, remanding the case to the BZA after concluding that the BZA decision granting the Mieses a development standards variance with a void condition was a legal nullity.

In their appeal, the Mieses argued that the underlying variance and void condition are severable and that the trial court should have upheld the underlying variance while voiding the condition. They further argued that even if the trial court didn’t err in voiding their variance, it erred by concluding that a deck that was attached to their cottage had lost its status as a nonconforming structure that is exempt from the development standards ordinances.

The BZA cross-appealed, arguing that the trial court elevated form over substance when it concluded that the board imposed an unauthorized condition on the Mieses’ variance. The BZA also contended that the Mieses consented to the condition by not objecting to it.

“Concluding that the Mieses did not consent to the unauthorized condition, that the underlying variance is not severable from the void condition, making the BZA’s entire decision a legal nullity, and that the Mieses’ new deck lost its nonconforming status and is no longer exempted from the zoning ordinances, we affirm the decision of the trial court,” Judge John Baker wrote.

 

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  1. I just wanted to point out that Congressman Jim Sensenbrenner, Senator Feinstein, former Senate majority leader Bill Frist, and former attorney general John Ashcroft are responsible for this rubbish. We need to keep a eye on these corrupt, arrogant, and incompetent fools.

  2. Well I guess our politicians have decided to give these idiot federal prosecutors unlimited power. Now if I guy bounces a fifty-dollar check, the U.S. attorney can intentionally wait for twenty-five years or so and have the check swabbed for DNA and file charges. These power hungry federal prosecutors now have unlimited power to mess with people. we can thank Wisconsin's Jim Sensenbrenner and Diane Feinstein, John Achcroft and Bill Frist for this one. Way to go, idiots.

  3. I wonder if the USSR had electronic voting machines that changed the ballot after it was cast? Oh well, at least we have a free media serving as vicious watchdog and exposing all of the rot in the system! (Insert rimshot)

  4. Jose, you are assuming those in power do not wish to be totalitarian. My experience has convinced me otherwise. Constitutionalists are nearly as rare as hens teeth among the powerbrokers "managing" us for The Glorious State. Oh, and your point is dead on, el correcta mundo. Keep the Founders’ (1791 & 1851) vision alive, my friend, even if most all others, and especially the ruling junta, chase only power and money (i.e. mammon)

  5. Hypocrisy in high places, absolute immunity handed out like Halloween treats (it is the stuff of which tyranny is made) and the belief that government agents are above the constitutions and cannot be held responsible for mere citizen is killing, perhaps has killed, The Republic. And yet those same power drunk statists just reel on down the hallway toward bureaucratic fascism.

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