114 N.E.3d 507
Ind. Ct. App.2018Background
- Jose Andrade owns a 1927-built house in Hammond that had been configured into five rental units when he purchased it in 1998.
- City inspectors issued Notices of Violation in 2013 and 2016 under Indiana's Unsafe Building Law (UBL), identifying structural and fire-safety hazards and deeming four apartments unsafe.
- A Board hearing (2017) included testimony from the Building Commissioner (Koch) and Chief of Inspections (Kearney) that the house was originally a single-family structure and currently contained unsafe conditions (e.g., balloon framing, inadequate stair width, lack of basement egress, inadequate fire stopping).
- Andrade subpoenaed the City for the 1927 Hammond building code and other materials; the City did not produce them, and Andrade did not request a continuance or exclusion of witnesses at the hearing.
- The Board found the apartments unlawfully constructed/occupied and ordered removal of the unsafe apartments, effectively restoring the property to single-family use; the trial court affirmed, and Andrade appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Board exceeded statutory authority by ordering restoration to single-family dwelling | Andrade: Board acted as a zoning authority beyond UBL power | City/Board: Action was authorized by UBL enforcement powers (vacate/demolish/remove) | Held: Board acted within UBL authority; order falls squarely within UBL remedies |
| Whether substantial evidence supports finding the Home was originally single-family | Andrade: Evidence shows it was built/used as multi-family; Board erred | City/Board: Permit ledger and inspectors' opinions support single-family finding; UBL outcome not controlled by original permit | Held: Substantial evidence supports Board/trial court finding home was built as single-family |
| Whether City’s failure to produce 1927 code (subpoena) requires reversal | Andrade: Non-production prevented effective cross-examination and violated procedure | City/Board: Materials publicly available; Andrade knew experts' opinions and sought no remedy at hearing | Held: Claim waived for failing to seek continuance or exclusion; even on merits no reversible prejudice shown |
| Whether zoning/permitting history bars UBL action | Andrade: If originally multi-family, Board cannot force single-family restoration | City/Board: UBL § 5(a) supersedes permits/land-use; unsafe condition remediation controls | Held: UBL supersedes prior permits; original status does not prevent remediation under UBL |
Key Cases Cited
- Kollar v. Civil City of South Bend, 695 N.E.2d 616 (Ind. Ct. App.) (scope of appellate review of administrative findings)
- Foursquare Tabernacle Church of God in Christ v. Dep’t of Metro. Dev. of Indianapolis, 630 N.E.2d 1381 (Ind. Ct. App.) (standard for reviewing trial court findings under T.R. 52)
- City of Jasper v. Collingnon, 789 N.E.2d 80 (Ind. Ct. App.) (applying administrative-law principles to municipal bodies)
- City of Kokomo v. Iseminger, 868 N.E.2d 1169 (Ind. Ct. App.) (statutory interpretation rules)
- McCabe v. Commissioner, Indiana Dep’t of Ins., 949 N.E.2d 816 (Ind.) (give plain meaning to unambiguous statute)
- Jacobs v. State, 640 N.E.2d 61 (Ind. Ct. App.) (purpose of pretrial discovery; prevent unfair surprise)
- Warren v. State, 725 N.E.2d 828 (Ind.) (proper remedy for discovery violation is continuance; failure to request is waiver)
- Price v. Review Bd. of Indiana Dep’t of Workforce Dev., 2 N.E.3d 13 (Ind. Ct. App.) (appellate arguments must be supported by cogent authority)