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COA reverses dismissal of review of uninhabitable property order

July 7, 2017

A Hammond man’s petition for judicial review of an order to repair or remove an apartment in a building he owns will return to the trial court after the Indiana Court of Appeals ruled the Lake Superior Court erred in dismissing the case.

In 2012, Matt Saliga, an inspector for the city of Hammond, inspected Juan Vega’s home, and the city subsequently issued a notice of violation. Specifically, the property was found to contain an unsafe apartment lacking proper fire protection and was found to be contrary to Hammond zoning laws.

Vega was instructed to bring the property into compliance within 30 days, and a hearing on the issue before the City of Hammond Board of Public Works and Safety was continued several times until November 2014, when Saliga and the city’s counsel tendered the inspection findings. The findings were approved, but Vega moved for relief, arguing neither he nor his counsel had been advised of the hearing.

The order was vacated, and Vega’s counsel asked for a continuance to obtain a second inspection of the property. However, Saliga had not performed the requested inspection by April 29, 2015, so Vega’s counsel sent a letter to Kris Kantar, counsel for the city, saying he had not heard from Saliga since March.

Vega’s counsel also sent a motion to reassign date to Kantar, which indicated that unless otherwise indicated, counsel would appear at a hearing on April 30. But neither Vega nor his counsel appeared at that hearing, so Kantar moved for the board to give Saliga one week to prepare an order of demolition that Vega could appeal because “enough is enough.”

The board agreed, but Vega moved for relief, arguing that Kantar had agreed to communicate with Saliga and that Saliga had not responded to emails and faxes requesting the inspection. The board, however, entered findings of fact and a decision ordering Vega to remove the second-floor apartment.

Vega moved for judicial review, and his counsel conducted a deposition in which Saliga said he “misspoke” when he told the board he had not been contacted about setting up an inspection.

After Vega rested his case-in-chief at March 2016 judicial hearing, the city moved for a directed verdict, arguing Vega had failed to meet his obligation of submitting the entire administrative record to the court. The judge granted the city’s motion, prompting the instant appeal.

On appeal, Vega argued the city erred in stating he had an obligation to offer the entire administrative record into evidence, and that even if he had that obligation, he satisfied it by tendering video recordings of the relevant board hearings to the trial court.

The Indiana Court of Appeals agreed, with Judge Elaine Brown noting in a Friday opinion that Vega filed for judicial review pursuant to Indiana Code 36-7-9-8, which required him to file his complaint within 10 days and to include the findings of fact and action taken by the hearing authority. Vega met those requirements, Brown said, and the statute does not require anything additional, such as the full administrative record.

Instead, Vega was required to produce evidence relevant to his theory of the case, which was based upon the notion that the board ruled before Saliga performed a second inspection. Vega met that requirement, so the trial court erred in granting the motion for a directed verdict on the basis of a lack of the entire record, Brown said.

Further, the appellate panel found that Vega “made a requisite showing that the Board’s order was made without consideration or in disregard of the facts and circumstances of the case and was therefore arbitrary and capricious and that trial court erred in dismissing Vega’s complaint for judicial review at the close of his case-in-chief.” Thus, the court’s order was reversed and the case of Juan Vega v. City of Hammond and City of Hammond Board of Public Works and Safety, 45A03-1605-MI-1067, was remanded for further proceedings.
 

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