ILNews

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. A traditional parade of attorneys? Really Evansville? Y'all need to get out more. When is the traditional parade of notaries? Nurses? Sanitation workers? Pole dancers? I gotta wonder, do throngs of admiring citizens gather to laud these marching servants of the constitution? "Show us your billing records!!!" Hoping some video gets posted. Ours is not a narcissistic profession by any chance, is it? Nah .....

  2. My previous comment not an aside at court. I agree with smith. Good call. Just thought posting here a bit on the if it bleeds it leads side. Most attorneys need to think of last lines of story above.

  3. Hello everyone I'm Gina and I'm here for the exact same thing you are. I have the wonderful joy of waking up every morning to my heart being pulled out and sheer terror of what DCS is going to Throw at me and my family today.Let me start from the !bebeginning.My daughter lost all rights to her 3beautiful children due to Severe mental issues she no longer lives in our state and has cut all ties.DCS led her to belive that once she done signed over her right the babies would be with their family. We have faught screamed begged and anything else we could possibly due I hired a lawyer five grand down the drain.You know all I want is my babies home.I've done everything they have even asked me to do.Now their saying I can't see my grandchildren cause I'M on a prescription for paipain.I have a very rare blood disease it causes cellulitis a form of blood poisoning to stay dormant in my tissues and nervous system it also causes a ,blood clotting disorder.even with the two blood thinners I'm on I still Continue to develop them them also.DCS knows about my illness and still they refuse to let me see my grandchildren. I Love and miss them so much Please can anyone help Us my grandchildren and I they should be worrying about what toy there going to play with but instead there worrying about if there ever coming home again.THANK YOU DCS FOR ALL YOU'VE DONE. ( And if anyone at all has any ideals or knows who can help. Please contact (765)960~5096.only serious callers

  4. He must be a Rethuglican, for if from the other side of the aisle such acts would be merely personal and thus not something that attaches to his professional life. AND ... gotta love this ... oh, and on top of talking dirty on the phone, he also, as an aside, guess we should mention, might be important, not sure, but .... "In addition to these allegations, Keaton was accused of failing to file an appeal after he collected advance payment from a client seeking to challenge a ruling that the client repay benefits because of unreported income." rimshot

  5. I am not a fan of some of the 8.4 discipline we have seen for private conduct-- but this was so egregious and abusive and had so many points of bad conduct relates to the law and the lawyer's status as a lawyer that it is clearly a proper and just disbarment. A truly despicable account of bad acts showing unfit character to practice law. I applaud the outcome.

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