ILNews

Legal nullity sends zoning decision back to BZA

Back to TopCommentsE-mailPrintBookmark and Share

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.

 

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. So if I am reading it right, only if and when African American college students agree to receive checks labeling them as "Negroes" do they receive aid from the UNCF or the Quaker's Educational Fund? In other words, to borrow from the Indiana Appellate Court, "the [nonprofit] supposed to be [their] advocate, refers to [students] in a racially offensive manner. While there is no evidence that [the nonprofits] intended harm to [African American students], the harm was nonetheless inflicted. [Black students are] presented to [academia and future employers] in a racially offensive manner. For these reasons, [such] performance [is] deficient and also prejudice[ial]." Maybe even DEPLORABLE???

  2. I'm the poor soul who spent over 10 years in prison with many many other prisoners trying to kill me for being charged with a sex offense THAT I DID NOT COMMIT i was in jail for a battery charge for helping a friend leave a boyfriend who beat her I've been saying for over 28 years that i did not and would never hurt a child like that mine or anybody's child but NOBODY wants to believe that i might not be guilty of this horrible crime or think that when i say that ALL the paperwork concerning my conviction has strangely DISAPPEARED or even when the long beach judge re-sentenced me over 14 months on a already filed plea bargain out of another districts court then had it filed under a fake name so i could not find while trying to fight my conviction on appeal in a nut shell people are ALWAYS quick to believe the worst about some one well I DID NOT HURT ANY CHILD EVER IN MY LIFE AND HAVE SAID THIS FOR ALMOST 30 YEARS please if anybody can me get some kind of justice it would be greatly appreciated respectfully written wrongly accused Brian Valenti

  3. A high ranking Indiana supreme Court operative caught red handed leading a group using the uber offensive N word! She must denounce or be denounced! (Or not since she is an insider ... rules do not apply to them). Evidence here: http://m.indianacompanies.us/friends-educational-fund-for-negroes.364110.company.v2#top_info

  4. A high ranking bureaucrat with Ind sup court is heading up an organization celebrating the formal N word!!! She must resign and denounce! http://m.indianacompanies.us/friends-educational-fund-for-negroes.364110.company.v2#top_info

  5. ND2019, don't try to confuse the Left with facts. Their ideologies trump facts, trump due process, trump court rules, even trump federal statutes. I hold the proof if interested. Facts matter only to those who are not on an agenda-first mission.

ADVERTISEMENT