COLUMBUS BOARD OF ZONING APPEALS, Thomas Webb, Jewell Arthur, Timothy Grogg, Steven Zeller, and Lou Marr, individual members of such Board; and Steve Rucker, Appellants-Respondents, v. Tom WETHERALD, Appellee-Petitioner.
No. 03A01-9204-CV-122.
Court of Appeals of Indiana, First District.
Dec. 28, 1992.
Rehearing Denied March 10, 1993.
605 N.E.2d 208
No. 03A01-9204-CV-122.
Court of Appeals of Indiana, First District.
Dec. 28, 1992.
Rehearing Denied March 10, 1993.
John R. Rumple, Joan Tupin Crites, Sharpnack, Bigley, David & Rumple, Columbus, for appellee-petitioner.
RATLIFF, Judge.
STATEMENT OF THE CASE
The Columbus Board of Zoning Appeals, its individual members, and Steve Rucker (collectively “BZA“) appeal from a judgment reversing the BZA‘s decision denying applications for zoning variances filed by Tom Wetherald. We reverse and remand.
ISSUES
We restate and consolidate the issues on appeal as:
- Is the instant appeal moot because the BZA failed to obtain a stay pending appeal, and in the interim, Wetherald obtained a building permit, completed improvements, and is currently operating his business on the lot in question in accordance with the trial court‘s grant of the variances?
- Did the trial court improperly reverse the BZA‘s decision and enter its own findings, since the BZA provided no findings of fact to substantiate its decision as required by statute?
FACTS
Wetherald purchased the lot involved in this appeal (“Lot“) to construct a drive-through restaurant (“Restaurant“). The Lot is zoned B-4 under the Columbus Zoning Ordinances (“Ordinances“), which permit the construction of a drive-through restaurant. Record at 48, part 2, p. 29.1 The Lot consists of approximately 12,000 square feet of property, but only approxi-
The Code Enforcement Officer denied the application and told Wetherald that he first needed to obtain developmental standards variances (“Variances“) before receiving a building permit. Wetherald applied for the Variances. These applications requested:
- To construct a building in front of a setback line (State Street) and to permit parking in front of a setback line of a local street (Illinois Street).
- To construct a building with parking based on kitchen floor area only.
- To vary the landscape buffer requirements.
Record at 48, part 2, pp. 42-43, 45-46, and 49-50.
The BZA considered Wetherald‘s applications (“Applications“) at its June 25, 1991 meeting. However, the BZA failed to reach a decisive vote on the Applications, so decision thereon was postponed until the BZA‘s July 23, 1991 meeting. On July 23, 1991, the BZA denied the Applications, but no written findings of fact were made. Record at 48, part 2, pp. 1-15.
Wetherald filed a petition for writ of certiorari (“Writ“) seeking review of the BZA‘s decision on August 21, 1991. The Writ was granted and following a hearing, the trial court determined that the evidence before the BZA supported the granting of the Applications, and that denial by the BZA was illegal, arbitrary, and contrary to the weight of the probative evidence presented to the BZA. Record at 49-53. The trial court also noted that the BZA had made no findings supporting its decision. Record at 50.
After the trial court‘s orders approving the Applications and thereby granting the Variances, Wetherald obtained a building permit, constructed the Restaurant, and opened for business. Wetherald has continued operating the Restaurant during the pendency of this appeal. Other relevant facts will be stated in our discussion of the issues.
DISCUSSION AND DECISION
Issue One
Wetherald argues that this appeal is moot because the BZA failed to obtain a stay pending appeal, and in the interim, he obtained a building permit, completed improvements, and is currently operating the Restaurant in accordance with the trial court‘s grant of the Variances. We disagree.
An issue becomes moot when it is no longer live or when the parties lack a legally cognizable interest in the outcome. Bartholomew County Hospital v. Ryan (1982), Ind.App., 440 N.E.2d 754, 757, trans. denied. Where we are unable to grant effective relief on an issue, the issue is deemed moot. Id.
Here, contrary to Wetherald‘s contention, the appeal is not moot. If relief were granted to the BZA reversing the trial court‘s grant of the Variances, then the BZA‘s decision denying the Variances would be reinstated. Wetherald would then be required to bring the Restaurant into compliance with the regular developmental standards, including removing structures already completed. We cannot sanction Wetherald‘s construction pending appeal as creating mootness; otherwise, those seeking variances for construction purposes could circumvent zoning requirements by simply constructing in accordance with permits issued, although final resolution of the propriety of such variances was still pending on appeal. Wetherald proceeded to build at his own peril prior to a final resolution of the variance issues. See Petrosky v. Zoning Hearing Board (1979), 485 Pa. 501, 507, 402 A.2d 1385, 1388 (factor to consider in determining whether permit holder has vested right because of detrimental reliance by making improvements on property is that time period in which issuance of permit could have been appeal-
Issue Two
The BZA contends that the trial court improperly reversed its decision and entered its own findings, since the BZA provided no findings of fact to substantiate its decision as required by statute and the evidence on Wetherald‘s compliance with the four criteria needed to sustain his burden on the Variances was not uncontradicted. We agree and find that reversal and remand are mandated.
In examining a decision of a county board of zoning appeals to determine whether it was incorrect as a matter of law, a trial court does not conduct a trial de novo and does not substitute its decision for that of the board; our review of a trial court‘s ruling on review of such a decision is governed by the same considerations. McBride v. Board of Zoning Appeals (1991), Ind.App., 579 N.E.2d 1312, 1315. Unless the BZA‘s decision was illegal, it must be upheld; in essence, an abuse of discretion standard applies. Id. We cannot reweigh evidence or substitute our discretion for that of the BZA. Id. We are governed by the presumption that an agency‘s decision is correct in view of its expertise. Id.
For reasons that exist independently of statute, boards of zoning appeals are required to set out findings of fact which support their determinations to make possible an adequate judicial review of administrative decisions. Id. at 1316. Moreover, our statutes require that the BZA make written findings of fact to support its determinations to make possible an intelligent judicial review of the administrative decision without speculations as to its factual basis. Habig v. Harker (1983), Ind.App., 447 N.E.2d 1114, 1116;
Here, the record of the BZA proceedings does not contain any findings of fact supporting the BZA‘s decision to deny the Applications. See Record at 48. Such findings would not be necessary, however, if
To prevail on his Applications, Wetherald was required to show four criteria:
- the approval will not be injurious to the public health, safety, and general welfare of the community;
- the use and value of the area adjacent to the property included in the variance will not be affected in a substantially adverse manner;
- the strict application of the terms of the zoning ordinance will result in practical difficulties in the use of the property; and,
- the variance requested is the minimum necessary and does not correct a hardship caused by the owner, previous or present, of the property.
Columbus City Code § 35-328; see also
The record of the BZA proceedings shows that several of the BZA members, including a city engineer, expressed reservations about the Variances because of traffic safety concerns, which are encompassed in the first criterion. See Record at 48, part 2, pp. 8-9, 20, 23-24, 26, 29-31. Although many of these comments may seem peripheral in the context of the entire discussion, they do demonstrate that the evidence which Wetherald presented was contradicted. Because the evidence was contradicted, the trial court could not enter findings which conflicted with the BZA‘s decision, since agency decisions are afforded great weight by virtue of an agency‘s inherent expertise in its given area. See McBride, 579 N.E.2d at 1315; Boffo v. Boone County Board of Zoning Appeals (1981), Ind.App., 421 N.E.2d 1119, 1125 (in order to upset BZA‘s determination when it has denied variance, reviewing court must find, after resolving all doubts in evidence in favor of BZA‘s decision, that each statutory prerequisite has been established as matter of law). Thus, the trial court exceeded its powers of review when it entered findings; rather, the proper action would have been to remand to the BZA for the entry of the required findings. See Habig, 447 N.E.2d at 1117. We similarly may not now review the BZA‘s decision without findings on which its decision rests.
We note that Wetherald‘s reliance on Town of Merrillville Board of Zoning Appeals v. Public Storage, Inc. (1991), Ind. App., 568 N.E.2d 1092, trans. denied, is misplaced. In Public Storage, the BZA entered findings four days late, and we held that the late entry was harmless error. Id. at 1093, n. 2. Here, however, the BZA did not enter its findings late, but failed to make any findings at all. Therefore, the harmless error analysis in Public Storage is inapplicable to Wetherald‘s case.5
Because we cannot say that the evidence was without contradiction and Wetherald satisfactorily proved all of the criteria, we reverse and remand to the trial court to remand to the BZA for the entry of findings supporting its denial of the Applications to allow for proper review, and for further proceedings in accordance with this opinion. If, as Wetherald urges, there is
Reversed and remanded.
BAKER, J., concurs.
STATON, J., dissents with separate opinion.
STATON, Judge, dissenting.
I dissent. The record is devoid of substantial evidence to support the board‘s determination that granting the variance would be injurious to the public health, safety or general welfare.
The board claims that its denial of a variance—unaccompanied by findings of fact—is predicated upon Wetherald‘s failure to establish that: “the approval will not be injurious to the public health, safety, and general welfare of the community.” At the public hearings, board members expressed “concern” about traffic congestion at the site. Record, p. 48, Minutes, pp. 19-20, 23. This is so despite the Board‘s admission that Wetherald complied with the local requirement of 10 vehicle “stacking positions” to keep customers ordering or receiving food on the parking lot and off the street. Minutes, p. 16. It is uncontroverted that Wetherald thereby complied with the traffic safety standard established by the City of Columbus.
The “evidence” in support of the board‘s determination as to public safety consists of testimony by Steve Rucker, City of Columbus engineer:
“Our only concern is that kind of development on such a small site. Uh, I think it‘s, uh, a problem we get very cramped site plan and, and use that tends to generate large volumes of traffic, as a drive thru restaurant does. And the memo didn‘t intend to say that kind of cars were going to be there every hour, uh, use some comparisons to show other kinds of uses. The drive thru restaurant does tend to generate a lot of cars.” (emphasis added)1
Minutes, p. 6.
“If we have one more conflict and the possibilities of cars colliding.” (emphasis added)
Minutes, p. 9.
Although there exists conjecture and speculation as to “possibilities” and “tendencies,” there is no substantial evidence of a safety hazard specifically related to the location under consideration. However, the record discloses uncontroverted evidence of the public health and safety benefit flowing from Wetherald‘s acquisition and use of the site: the drive-through operation replaced a worthless, abandoned, roach and rodent-infested structure. Minutes, p. 11. Moreover, the owner of the adjacent property (a doughnut shop) testified that his traffic generation peak occurred in the early morning, in contrast to the peak traffic hours at Wetherald‘s hamburger establishment. Minutes, pp. 8, 11.
I would affirm the decision of the trial court setting aside the board‘s determination as illegal, arbitrary and contrary to the weight of the probative evidence.