A zoning lawsuit over a deck that violates Hammond’s zoning ordinance by being too close to a neighbor’s side yard was reinstated by the Indiana Court of Appeals on Wednesday. The appeals court found that in dismissing the suit, judges had misapplied an affirmative defense that the landowner had not pleaded.
John Rostankovski owns a rental property in Hammond that has a deck that lies within 3 feet of the neighboring side yard setback line, in violation of the city of Hammond’s zoning ordinance. The city sued in October 2017, but the Hammond City Court dismissed the complaint and Hammond’s motion correct error.
After the Lake Superior Court affirmed on appeal, the Court of Appeals in 2019 reversed, reinstating the case and remanding it to the trial court.
On remand, the city court and the trial court on appeal again dismissed the city’s suit, finding sua sponte that it was barred by the doctrine of laches. The COA on Wednesday again reversed and remanded in City of Hammond v. John Rostankovski, 19A-OV-2609, finding the trial court erred.
“The law is clear that laches cannot be a defense to a municipality’s action to enforce its zoning ordinances,” Judge James Kirsch wrote for the panel. “… The defense was not raised until the City Court sua sponte mentioned it in closing remarks and then based its dismissal of the complaint on the same … and the trial court erred in affirming the City Court’s erroneous ruling.” The matter was thus remanded a second time for proceedings.
The COA also denied Rostankovski’s cross-appeal that argued the appellate court lacked jurisdiction over the case.
The panel rejected his claim that because Indiana Code § 33-35-5-10 does not specifically set forth a right to appeal the trial court’s order after a review, it was prohibited from doing so. It noted the COA’s jurisdiction is governed by Indiana Rules of Appellate Procedure, which permits jurisdiction over any appeals from final judgments of circuit, superior, probate or county courts.