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COA reinstates Hammond zoning suit against landlord

January 23, 2019

The city of Hammond may proceed with an ordinance violation act against a local landlord after the Indiana Court of Appeals rejected a trial court’s finding that it lacked subject matter jurisdiction to hear the case in a trial de novo.

In October 2017, the city of Hammond filed a complaint in Hammond City Court alleging John Rostankovski violated a city zoning ordinance at the site of his residential rental properly. The city court dismissed the complaint as barred by laches, prompting the city to move for a trial de novo in Lake Superior Court.

The superior court denied the city’s motion, finding trial de novo rules gave only defendants the statutory right to appeal. However, the trial court allowed the city to file an appeal in conformity with Indiana Code section 33-35-5-10, which it did.

The superior court then dismissed the appeal for lack of subject matter jurisdiction, finding a conflict of laws. Specifically, the superior court noted that the statute allowed for civil appeals by any party, while the de novo rules didn’t allow the city to appeal ordinance violations. The court then determined the de novo rules applied because they addressed ordinances specifically.

After its motion to correct error was denied, the city appealed in City of Hammond v. John Rostankovski, 18A-OV-1891, arguing I.C. 33-55-5-10 “remains a valid procedural avenue to appeal an adverse civil judgment.” The Court of Appeals agreed, with Judge Patricia Riley writing that Hammond complied with the statute’s procedural standing requirements, including submitting population statistics, tendering a bond approved by the city court and timely filing a transcript and motion with the superior court.

Riley further noted the appeal limitations included in the de novo rules are not incorporated into the statute.

“Specifically, both statutes govern the appeals of city courts; however, where I.C. section 33-35-5-9 focuses on De Novo appeals and is further limited by the Indiana De Novo Trial Rules promulgated by our supreme court, I.C. section 33-35-5-10, on the other hand, focuses on regular — non-De Novo — civil appeals from qualifying city courts,” Riley wrote. “Thus, although the same general subject matter is covered by both statutes, their individual focus and requirements are different and therefore do not encroach but rather can be harmonized.”

“Deciding otherwise, and precluding Hammond to avail itself of an appellate avenue under I.C. section 33-35-5-10 — as urged by Rostankovski — would leave Hammond without any remedy for relief from a presumedly erroneous negative judgment,” Riley continued. “Accordingly, we reverse the Superior Court’s Order and remand for further proceedings.”

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