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. Just an aside, but regardless of the outcome, I 'm proud of Judge William Hughes. He was the original magistrate on the Home place issue. He ruled for Home Place, and was primaried by Brainard for it. Their tool Poindexter failed to unseat Hughes, who won support for his honesty and courage throughout the county, and he was reelected Judge of Hamilton County's Superior Court. You can still stand for something and survive. Thanks, Judge Hughes!

  2. CCHP's real accomplishment is the 2015 law signed by Gov Pence that basically outlaws any annexation that is forced where a 65% majority of landowners in the affected area disagree. Regardless of whether HP wins or loses, the citizens of Indiana will not have another fiasco like this. The law Gov Pence signed is a direct result of this malgovernance.

  3. I gave tempparry guardship to a friend of my granddaughter in 2012. I went to prison. I had custody. My daughter went to prison to. We are out. My daughter gave me custody but can get her back. She was not order to give me custody . but now we want granddaughter back from friend. She's 14 now. What rights do we have

  4. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  5. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

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