970 N.E.2d 251
Ind. Ct. App.2012Background
- Mieses own a lake cottage in Steuben County; a prior deck extended into a 20-foot lakefront setback.
- Contractor rebuilt the deck without obtaining required building permits.
- The Steuben County BZA granted a post-construction development standards variance for the deck and stairs, but on a form stating “Approved with Conditions” that the deck must meet the setback.
- The Mieses refused to comply with the condition arguing the BZA had no authority to impose conditions on a variance.
- The Plan Director later concluded a removed nonconforming deck cannot be reestablished; the NOV and appeals centered on whether the variance and its condition could be void, severed, or enforced; the trial court reversed the BZA and remanded for new hearings, and the appellate court ultimately affirmed that ruling.
- The Mieses’ deck lost its nonconforming status under the SCZO, and the BZA lacked statutory authority to impose the condition, rendering the decision a legal nullity.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the BZA lacked authority to impose any condition on the variance. | Mieses argue the variance was granted without authority to attach conditions. | BZA contends conditions were permissible to implement development standards. | Yes; BZA lacked authority to impose conditions on a development standards variance. |
| Whether the void condition could be severed from the underlying variance. | The variance should stand; only the void condition should be voided. | The entire variance was tainted by the void condition. | No; the void condition cannot be severed from the variance; the whole act is void. |
| Whether the deck retained its nonconforming status after replacement. | Deck should retain nonconforming status since repairs were under 50%. | Replacement deck cost exceeded 50% of the value, so nonconformity was lost. | The new deck lost its nonconforming status under the SCZO. |
| Whether the Mieses consented to the condition imposed on the variance. | Mieses did not expressly consent to the condition. | Summering of consent implied by participation in hearing. | Not consent; no express agreement to the condition. |
| Whether the BZA’s overall decision was ultra vires and void. | If the variance plus void condition were void, the decision should be null. | Argues the form language sufficed; the court should uphold the variance absent consent issues. | Affirmed: the BZA decision was ultra vires and void; remand for new variance hearing. |
Key Cases Cited
- Equicor Dev., Inc. v. Westfield-Washington Twp. Plan Comm'n, 758 N.E.2d 34 (Ind. 2001) (standard for reviewing BZA decisions; substantial evidence and statutory limits)
- S & S Enterprises, Inc. v. Marion Cnty. Bd. of Zoning Appeals, 788 N.E.2d 485 (Ind. Ct. App. 2003) (limits of BZA authority; deference to agency in review)
- Schlehuser v. City of Seymour, 674 N.E.2d 1009 (Ind. Ct. App. 1996) (BZA authority to revoke variances; delegation required)
- Elkhart Cnty. Bd. of Zoning Appeals v. Earthmovers, Inc., 631 N.E.2d 927 (Ind. Ct. App. 1994) (Earthmovers distinction on voidable vs void conditions; consequences of conditions)
- Robert Lynn Co., Inc. v. Town of Clarksville Bd. of Zoning Appeals, 867 N.E.2d 660 (Ind. Ct. App. 2007) (unique consent circumstances; conditioned approval validity)