Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEYS FOR APPELLANTS: ATTORNEY FOR APPELLEES:
JAMES A. FEDEROFF RICHARD K. HELM
JASON M. KUCHMAY Rockhill Pinnick LLP
Federoff Kuchmay LLP Warsaw, Indiana
Fort Wayne, Indiana
FILED
Sep 25 2012, 9:24 am
IN THE CLERK
COURT OF APPEALS OF INDIANA
of the supreme court,
court of appeals and
tax court
DANIEL E. STUCKMAN, SR. and )
DANIEL E. STUCKMAN, JR., )
)
Appellants, )
)
vs. ) No. 43A03-1202-MI-69
)
KOSCIUSKO COUNTY BOARD OF )
ZONING APPEALS and the ESTATE OF )
GARY STUCKMAN, )
)
Appellee. )
APPEAL FROM THE KOSCIUSKO CIRCUIT COURT
The Honorable Rex L. Reed, Judge
Cause No. 43C01-1003-MI-147
September 25, 2012
MEMORANDUM DECISION – NOT FOR PUBLICATION
MATHIAS, Judge
Daniel E. Stuckman, Sr., (“Daniel Sr.”) and Daniel E. Stuckman, Jr., (“Daniel Jr.”)
(collectively “the Stuckmans”), appeal the trial court’s judgment in favor of the
Kosciusko County Board of Zoning Appeals (“the BZA”) and the Estate of Gary
Stuckman (“the Estate”) (collectively “the Appellees”). The Stuckmans raise six issues,
which we consolidate and restate as:
I. Whether the trial court erred in concluding that Daniel Jr. lacked standing to
petition for certiorari; and,
II. Whether the BZA erred in granting Gary Stuckman’s (“Gary”) Request for an
Exception to Modify and Change His Existing Nonconforming Use.
We affirm.
Facts and Procedural History
Ned and Bertha Stuckman purchased Lots A through K of the Lake Papakeechie
Subdivision Number 2 by land contract in the 1950’s and opened an automobile salvage
yard on Lots E through K. In 1975, a Kosciusko County Zoning Ordinance (“the
Ordinance”) took effect, and Ned and Bertha’s land was zoned residential. However,
their existing automobile salvage yard constituted a lawful, nonconforming use, and Ned
and Bertha continued their operation. In the early 1980’s, Ned and Bertha cleared brush
from Lots A through D and began stacking vehicles in that area. The Board investigated
complaints by area residents and subsequently brought an action for injunctive relief
alleging that the family had expanded a preexisting nonconforming use in violation of the
Ordinance. The trial court concluded that Ned, Bertha, and Gary had unlawfully
expanded the automobile salvage yard to Lots A through D and ordered them to cease all
salvage yard operations until they complied with certain restrictions.
2
On appeal, this court held that Ned, Bertha, and Gary had not impermissibly
expanded their nonconforming use. Stuckman v. Kosciusko Board of Zoning Appeals,
495 N.E.2d 775, 779 (Ind. Ct. App. 1986), trans. granted. However, the Indiana Supreme
Court granted transfer and concluded that Ned, Bertha, and Gary had violated the
ordinance. Stuckman v. Kosciusko County Board of Zoning Appeals, 506 N.E.2d 1079,
1081 (Ind. 1987). In addition to the state court action, the parties were involved in a
federal action relating to the property as well.
In February 1988, Ned, Bertha, Gary, the Papakeechie Protective Association
(“Papakeechie”), and the Board of Zoning Appeals entered into a written Compromise
Agreement (“the Agreement”) to settle all issues concerning Lots A through K. The
Agreement provided that Papakeechie would join with Ned, Bertha, and Gary to file an
application for an exception for modification of a preexisting nonconforming use on Lots
A through G. However, the Agreement placed restrictions, limitations, and covenants on
the use of the property. For example, Ned, Bertha, and Gary agreed to construct an eight-
foot high earthen mound beginning 180 feet from the east edge of Koher Road, (“the
Buffer Mound”). Ned, Bertha, and Gary also agreed to plant pine trees on the Buffer
Mound to provide additional screening. All salvage yard activities were to be conducted
to the east or north of the Buffer Mound, and vehicles were to be stacked so as not to be
visible from Koher Road. In addition, Ned, Bertha, and Gary agreed to refrain from
installing a sign indicating the existence of a salvage yard or advertising items for sale,
except as necessary to meet state requirements pertaining to a wrecker service.
3
Following the execution of the Agreement, Gary filed the request for an exception
for modification of a preexisting nonconforming use. The petition was approved
contingent upon Gary’s strict adherence to the Agreement. Two years later, in 1990,
Gary filed another request for an exception for modification of a preexisting
nonconforming use seeking the BZA’s approval to construct additional buildings on the
property, which would provide inside storage for tires, parts, and salvage materials. The
BZA also approved this request.
After Ned and Bertha died, Gary apparently inherited Lots A through G, and his
brother, Daniel Sr., apparently inherited Lots H through K, which are immediately south
of and adjacent to Gary’s lots. Gary continued to operate the salvage yard on his lots,
and Daniel Sr. operated Stuckman Sanitation on his lots. Daniel Sr. and his son, Daniel
Jr., also own and operate Northern Indiana Recycling, LLC, on these lots, and Daniel Jr.
owns and operates Stuckman and Son Trucking on the lots. In 2008, Daniel, Sr., filed a
request for an exception for modification of a preexisting nonconforming use, seeking
approval for the construction of three new buildings, the installation of a scale, and the
relocation of driving areas on his lots. The BZA also approved these modifications.
Two years later, in January 2010, Gary filed a request for an exception to expand
the salvage yard as a nonconforming use. The BZA held a hearing on the request on
February 9, 2010. Gary submitted site plans of his proposed changes, which included the
removal of several mobile homes along the highway, the relocation of the Buffer Mound,
the installation of a new location sign, and the construction of three new buildings to
move the operations indoors to control the noise and dust. Remonstrators who expressed
4
their concern that the changes would create a safety hazard due to water pollution were
assured that the State Board of Health and Department of Environmental Management
monitor these hazards, and that Gary had no prior violations. Following the hearing, the
BZA voted unanimously to approve the modification of the preexisting nonconforming
use.
In March 2010, the Stuckmans filed a Verified Petition for Writ of Certiorari,
seeking judicial review of the BZA’s decision. In the Writ, the Stuckmans alleged that
their businesses would be damaged and prejudiced by the BZA’s decision. The trial court
issued its Writ of Certiorari in May 2010. Gary died during the pendency of the
proceedings, and his estate was substituted as a party in March 2011.
The trial court held a hearing on the case in July 2011. The Stuckmans argued that
the BZA did not apply the appropriate zoning ordinance to the facts of the case.
Specifically, Zoning Ordinance Section 5.5 gives the BZA the power to authorize
changes of lawful nonconforming uses and/or structures. Here, however, the BZA
members reviewed a checklist from Section 5.4 of the zoning ordinance, which applies to
exceptions. The Stuckmans asked the trial court to either reverse the BZA’s decision or
to remand the case to the BZA for a hearing with new evidence and a decision based
upon proper sections of the zoning ordinance.
The Appellees, however, pointed out that the BZA had the Appellees’ written
request to consider the case as a request for a nonconforming use, and subsequently held
a hearing concerning the modification of a nonconforming use and discussed the factors
listed in Section 5.5 of the Zoning Ordinance. Therefore, according to the Appellees, the
5
BZA knew it was deciding the issue of changes to a nonconforming use. The Appellees
argued that the proper procedure would be to remand the case to the BZA for the limited
purpose of issuing findings of fact that reflected the evidence at the hearing.
In September 2011, the trial court issued “Findings, Conclusions and Judgment
Remanding for the Limited Purpose of Revised Findings of Fact,” wherein the court
concluded that Daniel Jr. lacked standing to contest the BZA’s decision because he was
not an abutting or adjacent property owner, he presented no evidence at the hearing to
indicate any effect whatsoever on his property, and he pointed to no evidence in the
record of proceedings indicating an adverse effect on his property. The trial court also
concluded that the BZA’s decision required additional findings of fact to be prepared by
the BZA. The trial court remanded the case to the BZA for the limited purpose of issuing
findings of fact sufficient to describe and support its February 2010 decision and for the
return of those findings to the trial court for additional supplemental review.
In December 2011, the BZA issued Findings of Fact on remand concluding that
the modification of the lawful, preexisting, nonconforming use in this case complied with
the Agreement and Section 5.5 of the Zoning Ordinance. The BZA concluded in part that
there was simply no evidence presented which indicated that the proposed changes of use
or modifications of structures would cause hardship to the neighborhood properties, an
adverse effect on the character of the neighborhood, or a hazard to adjoining structures or
properties. Specifically, the BZA noted that the removal of several mobile homes along
with a new location for the buffer mound would constitute a significant improvement to
the neighborhood and be of benefit to Gary’s adjoining neighbors. The BZA also noted
6
that on its face, a garbage or recycling business would not be harmed by Gary’s proposed
changes to his auto salvage business. The BZA therefore approved Gary’s application for
modification and change to a lawful nonconforming use and lawful nonconforming
structures.
The trial court concluded that the BZA’s findings of fact conformed with and were
supported by the evidence and were sufficient to support the BZA’s decision. The trial
court therefore ratified and confirmed the BZA’s findings and conclusions. The
Stuckmans appeal.
I. Standing
As a preliminary matter, the Stuckmans argue that the trial court erred in
concluding that Daniel Jr. lacked standing to petition for certiorari. The question of
whether a party has standing is purely one of law and does not require deference to the
trial court’s determination. Common Council of Michigan City v. Board of Zoning
Appeals of Michigan City, 881 N.E.2d 1012, 1014 (Ind. Ct. App. 2008).
Pursuant to the law in effect at the time this proceeding commenced, the
Stuckmans properly challenged the BZA’s decision by filing a Verified Petition for Writ
of Certiorari pursuant to Indiana Code section 36-7-4-1003.1 According to this statute,
only a person aggrieved by a BZA decision may petition the county circuit or superior
court for certiorari. An aggrieved person is one who has suffered a substantial grievance,
a denial of some personal or property right, or the imposition of a burden or obligation.
1
Indiana Code section 36-7-4-1600, effective July 2011, establishes an exclusive means for judicial
review of zoning decisions made by a board of zoning appeals.
7
Benton County Remonstrators v. Board of Zoning Appeals of Benton County, 905
N.E.2d 1090, 1098 (Ind. Ct. App. 2009). Generally, the BZA’s decision must infringe
upon a legal right of the petitioner that will be enlarged or diminished by the result of the
appeal, and the petitioner’s resulting injury must be pecuniary in nature. Bagnall v.
Town of Beverly Shores, 726 N.E.2d 782, 786 (Ind. 2000). The petitioner must show
some special injury other than that sustained by the community as a whole. Benton
County, 905 N.E.2d at 1098.
Bagnall is instructive. There, three fifty-foot lots separated the real estate that was
granted a variance by the BZA and the property owned by the Bagnalls. The Indiana
Supreme Court concluded that, even as owners of nearby real estate, the Bagnalls did not
demonstrate that they had standing because they presented nothing in their petition nor
did they enter any evidence in the record to suggest that the variance would result in an
infringement of a legal right resulting in a pecuniary injury. 726 N.E.2d at 782.
Here, as in Bagnall, Daniel Jr. failed to demonstrate that he had standing because
he does not own property abutting Gary’s property, he presented no evidence at the
hearing to indicate any effect whatsoever on his own property, and he pointed to no
evidence in the record of proceedings indicating an adverse effect on his property. The
trial court did not err in concluding that Daniel Jr. did not have standing to challenge the
BZA’s decision.
II. Substantial Evidence
Next, we address the Stuckmans’s argument that the BZA applied the wrong
section of the Ordinance to the facts of the case. Specifically, the Stuckmans believe that
8
they are entitled to a new hearing because during the February 2010 hearing, BZA board
members reviewed a checklist for Section 5.4 of the Ordinance, which applies to
exceptions, rather than reviewing Section 5.5 of the Ordinance, which applies to
nonconforming uses. However, this error was remedied when the trial court remanded
the case to the BZA for findings consistent with Section 5.5. The BZA issued additional
findings in December 2011 and concluded that the modification of the lawful preexisting
nonconforming use complied with the Agreement and Section 5.5 of the Ordinance.
The Stuckmans also argue that the trial court erred in ratifying and approving the
remanded findings. Specifically, the Stuckmans argue that these findings included
evidence that was not before the BZA at the February 2010 hearing. First, where a board
of zoning appeals fails to make findings, the proper action of the trial court is to remand
to the BZA for the entry of findings. Habig v. Harker, 447 N.E.2d 1114, 1117 (Ind. Ct.
App. 1983). Further, the adoption of administrative findings need not be made at the
same meeting at which the evidence is heard. McBride v. Board of Zoning Appeals of
the Evansville-Vanderburgh Area Plan Commission, 579 N.E.2d 1312, 1316 (Ind. Ct.
App. 1991). Therefore, the trial court was within its discretion to remand the case to the
BZA for further findings consistent with the proper section of the Ordinance. Further,
the gravamen of the Stuckmans’ argument is that there is not substantial evidence to
support the BZA’s decision on remand, which is another way of arguing that BZA erred
in granting Gary’s request for an exception to modify his nonconforming use.
When reviewing a decision of a zoning board, this Court and the trial court are
bound by the same standard. Midwest Minerals, Inc. v. Board of Zoning Appeals, 880
9
N.E.2d 1264, 1268 (Ind. Ct. App. 2008), trans. denied. We presume the determination of
the board, an administrative agency with expertise in zoning matters, is correct. Id. We
will reverse only if the board’s decision is arbitrary, capricious, or an abuse of discretion.
Id. We will not reweigh the evidence or substitute our decision for that of the board.
Thus, the Stuckmans labor under a heavy burden in urging this court to overturn the
BZA’s decision. See id.
The Ordinance section 5.5, which concerns nonconforming uses provides as
follows:
The Board of Zoning Appeals shall have the power to authorize changes of
lawful non-conforming uses and/or non-conforming structures as follows:
5.5.1 A non-conforming use which occupies a portion of a structure or
premises may be extended within such structure or premises as they exist
when the prohibitory provision took effect, but not in violation of the area
and yard requirements of the district in which such structure or premises are
located;
5.5.2 The Board of Zoning Appeals may authorize a change of use of a
non-conforming use or structure if the Board determines that the proposed
new use would not cause hardships to the neighborhood properties or have
an adverse effect on the character of the neighborhood; and is of greater
restriction than the existing non-conforming use;
5.5.3 The Board of Zoning Appeals may authorize a change or expansion
of a non-conforming structure if the Board determines that the proposed
change or expansion will not cause hardship to the neighboring properties,
will not have [a]n adverse effect on the character of the neighborhood, and
will not pose a safety hazard to adjoining structures or properties.
5.5.4 The Board of Zoning Appeals may impose any conditions and
safeguards it deems necessary for the protection of adjacent property and
the public interest.
Appellant’s App. p. 232.
The evidence presented at the hearing established that Gary proposed to remove
several mobile homes along the highway, relocate the Buffer Mound, install a new
10
location sign, and construct three new buildings to move the operations indoors to control
the noise and dust. The sole concern raised by remonstrators was a safety hazard due to
water pollution, a concern that would be monitored by the Department of Health and
IDEM.
In its remand order, the BZA explained that although it had inadvertently used a
checklist for an exception at the December 2010 hearing, Gary’s petition was clearly to
modify and change a preexisting nonconforming use and at no time were board members
confused as to the request nor did they believe that the purpose of the hearing was for an
exception under Section 5.4 of the Ordinance. The BZA further found and concluded
that pursuant to Section 5.5 of the Ordinance, there was simply no evidence presented,
which indicated that the proposed changes of use or modifications of structures would
cause hardship to the neighborhood properties, an adverse effect on the character of the
neighborhood, or a hazard to adjoining structures or properties. Specifically, the BZA
noted that the removal of several mobile homes which had been previously been
considered a detriment to the neighborhood along with a new location for the buffer
mound, would give a more pleasant appearance to this section of the roadway and would
constitute a significant improvement to the neighborhood and be of benefit to Gary’s
adjoining neighbors. The BZA also noted that on its face, a garbage or recycling
business would not be harmed by Gary’s proposed changes to his auto salvage business.
These findings are supported by substantial evidence.
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Conclusion
The trial court did not err in its finding that Daniel Jr., did not have standing to
contest the BZA’s decision. Based upon the evidence presented at the hearing, the BZA’s
decision was not arbitrary, capricious, or an abuse of discretion. The BZA did not err in
granting Gary’s request for an exception to modify and change his existing
nonconforming use.2
Affirmed.
VAIDIK, J., and BARNES, J., concur.
2 The Stuckmans also argue that the BZA decision violated the Agreement. However, they have
failed to set forth any applicable standard of review or cite any legal authority in support of this argument.
They have also failed to make any cogent legal argument or identify specific provisions of the Agreement
that were violated. The Stuckmans have therefore waived appellate review of this issue. See York v.
Fredrick, 947 N.E.2d 969, 979 (Ind. Ct. App. 2011) (stating that a party waives an issue where the party
fails to develop cogent argument or provide adequate citation to authority and portions of the record),
trans. denied. Waiver notwithstanding, we cannot conclude that any provision of the Agreement was
violated.
Lastly, Daniel Sr., argues that the trial court erred in concluding that he was equitably estopped
from challenging the BZA’s decision because he had previously sought a similar expansion of the
nonconforming use on his property, including the construction of three new buildings and an expanded
staging area. However, because the BZA’s decision is neither arbitrary, capricious, nor an abuse of
discretion, we need not address the estoppel issue.
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Daniel E. Stuckman, Sr. and Daniel E. Stuckman, Jr. v. Kosciusko County Board of Zoning Appeals and the Estate of Gary Stuckman
Combined Opinion