Riverside Meadows I, LLC v. City of Jeffersonville, Indiana Board of Zoning Appeals

FILED
Mar 30 2017, 5:52 am

CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court

ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
Christopher L. King Leslie D. Merkley
Lorch Naville Ward, LLC Corporation Counsel for the City
New Albany, Indiana of Jeffersonville, Indiana
Jeffersonville, Indiana

IN THE
COURT OF APPEALS OF INDIANA

Riverside Meadows I, LLC, March 30, 2017
Appellant-Petitioner, Court of Appeals Case No.
10A05-1608-PL-1828
v. Appeal from the Clark Circuit
Court
City of Jeffersonville, Indiana The Honorable Vicki L.
Board of Zoning Appeals, Carmichael, Judge
Appellee-Respondent. Trial Court Cause No.
10C04-1412-PL-144

Mathias, Judge.

[1] Riverside Meadows I, LLC (“Riverside”) appeals the order of the Clark Circuit

Court denying Riverside’s petition for judicial review of the decision of the City

of Jeffersonville’s Board of Zoning Appeals (“the BZA”). Riverside presents

two issues, which we consolidate and restate as whether the trial court erred by

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 concluding that the findings of fact entered by the BZA were sufficient to permit

judicial review.

[2] We reverse and remand.

Facts and Procedural History

[3] Riverside owns a building located on East Chestnut Street in Jeffersonville,

Indiana (“the Property”). Riverside is owned by Fouzia Shahnawaz

(“Shahnawaz”), and the Property is managed by her husband, Shawn Zamir

(“Zamir”). The Property was constructed in the 1920s as a convent and has

fourteen bedrooms plus some common areas.

[4] At the time relevant to this appeal, Riverside had rented out the rooms in this

building to eleven adults, ranging in age from forty-eight to eighty-four. In

addition, Riverside provided meals, laundry service, and light housekeeping for

the residents. The Property, however, is zoned as M-1 (low density multifamily

residential), and the City of Jeffersonville (“the City”) notified Riverside that its

use of the Property was in violation of the City’s zoning ordinances.

[5] Accordingly, Riverside filed an application for a use variance with the BZA,

seeking to operate the Property as a “rooming house.”1 At a meeting held on

October 28, 2014, the BZA considered Riverside’s request for a variance. The

BZA heard evidence from proponents and opponents of the variance. At the

1
In 2013, Zamir sought on behalf of another entity, Springhurst Investments, LLC, to rezone the Property to
allow for the operation of an assisted living facility. The City denied this rezoning request.

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 conclusion of the hearing, the BZA members took a vote and denied Riverside’s

request for a variance.

[6] According to the official minutes of the meeting, the BZA determined that:

1. The variance of use will not be injurious to the public health,
safety, moral and general welfare of the community;
2. The use and value of the area adjacent to the property will not
be adversely affected;
3. The need for a use variance does result from conditions
unusual or peculiar to the subject property itself;
4. The strict application of the terms of the Jeffersonville Zoning
Ordinance would result in an unnecessary hardship in the use of
the property; and
5. The approval of the variance does not contradict the goals and
objectives of the Comprehensive Plan.

Ex. Vol., Respondent’s Ex. A, p. 6 (emphases added). However, the transcript

of the meeting indicates that the BZA members actually disagreed with the

above-mentioned statements. Id., Petitioner’s Ex. 2, pp. 10-12.

[7] The BZA also issued a document entitled “Findings of Fact of Jeffersonville

Board of Zoning Appeals,” which is a preprinted document filled in with

relevant information and which provides in relevant part as follows:

The Board of Zoning Appeals of the City of Jeffersonville,
Indiana, having heard the application for variance described
above, and all opposition from parties claiming to be adversely
affected thereby, does now enter the following findings:

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 1. The variance of use will not be injurious to the public health,
safety, moral, and general welfare of the community.
[BZA] Members: M.M2 M.P.B. R.F. M.C. J.R.
Voting Agree
Voting Disagree ✓ ✓ ✓ ✓ ✓

2. The use and value of the area adjacent to the property will not
be adversely affected.
[BZA] Members: M.M M.P.B. R.F. M.C. J.R.
Voting Agree
Voting Disagree ✓ ✓ ✓ ✓ ✓

3. The need for the use variance does result from conditions
unusual or peculiar to the property itself.
[BZA] Members: M.M M.P.B. R.F. M.C. J.R.
Voting Agree
Voting Disagree ✓ ✓ ✓ ✓ ✓

4. The strict application of the terms of the Jeffersonville Zoning
Ordinance would result in an unnecessary hardship in the use of
the property.
[BZA] Members: M.M M.P.B. 3 R.F. M.C. J.R.
Voting Agree ✓
Voting Disagree ✓ ✓ ✓ ✓ ✓

2
To conserve space, we have used initials to replace the names of Board members Mike McCutcheon, Mary
Pat Boone, Rita Fleming, Marty Chalfant, and Rosh Rodriguez.
3
The form contains marks on both the “Agree” and “Disagree” lines for BZA member Boone’s votes on
questions 4 and 5.

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 5. The approval of the variance would not contradict the goals
and objectives of the Comprehensive Plan.
[BZA] Members: M.M M.P.B. R.F. M.C. J.R.
Voting Agree ✓
Voting Disagree ✓ ✓ ✓ ✓ ✓

These findings are supported by the evidence and/or testimony
including the following as more specifically included in the
minutes:
_______________________________________________________
_______________________________________________________
_______________________________________________________
_______________________________________________________

Based on the findings described above, the Board does now
approve/deny this application. So ordered this 28th day of
October, 2014.

If approved, this use variance applies to the subject parcel until
such time as (a) the use variance ends, is vacated, or unused for
three (3) months consecutively, (b) the property conforms with
the applicable Zoning Ordinance as written, or (c) ownership of
the property changes. The approval of this application is subject
to the following reasonable conditions being met and maintained
by the petitioner and all future entities responsible for the
conditions of the property.
1. ____________________________________________________
2. ____________________________________________________
3. ____________________________________________________
4. ____________________________________________________
5. ____________________________________________________

Jeffersonville Board of Zoning Appeals
By______[signed]_______ Attest______[signed]_______
Chairperson Secretary

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 Id., Petitioner’s Ex. 1, pp. 2-3.

[8] Any question regarding the decision of the BZA was clarified on October 29,

2014, when the BZA notified Riverside by letter that its request for a use

variance had been denied. Riverside then filed a petition for judicial review of

the BZA’s decision on December 1, 2014. The trial court held an evidentiary

hearing on the petition on January 21, 2016. On April 25, 2016, the trial court

entered findings of fact and conclusions of law, denying Riverside’s petition and

affirming the decision of the BZA. Riverside filed a motion to correct error on

May 23, 2016, claiming that the trial court erred in concluding that the BZA’s

findings were sufficient. The BZA filed a response on July 7, 2016, and the trial

court denied the motion to correct error on July 15, 2016.4 Riverside now

appeals.

Discussion and Decision

[9] Riverside claims that the findings of fact entered by the BZA are merely

recitations of the relevant statutory language and therefore insufficient.

4
Contemporaneous with its motion to correct error, Riverside moved the court to set a hearing on its motion
to correct error. The trial court did not set the motion for a hearing, but on May 31, 2016, set the matter for a
pretrial conference to be held on June 24, 2016. At this pretrial conference, the trial court ordered the BZA to
file a response within fifteen days of the hearing, with the additional provision that “Court’s time for ruling
begins once response is filed.” Appellant’s App. p. 9. On appeal, the BZA makes no argument that
Riverside’s motion was deemed denied under Indiana Trial Rule 53.3 or that Riverside’s appeal is untimely.
Our supreme court has held that the timeliness of a notice of appeal does not implicate this court’s appellate
jurisdiction. See In re Adoption of O.R., 16 N.E.3d 965, 971 (Ind. 2014) (“[A]lthough a party forfeits its right to
appeal based on an untimely filing of the Notice of Appeal, this untimely filing is not a jurisdictional defect
depriving the appellate courts of authority to entertain the appeal.”). Accordingly, we decline to address this
issue sua sponte.

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 Riverside argues that the trial court erred in denying its petition for judicial

review by concluding otherwise. When we review the BZA’s action, we apply

the same standard as the trial court. Burcham v. Metro. Bd. of Zoning Appeals Div. I

of Marion Cty., 883 N.E.2d 204, 213 (Ind. Ct. App. 2008). That is, we may not

reverse the BZA’s decision unless an error of law is demonstrated. Id. Neither

may we substitute our judgment for that of the BZA unless the appellant

demonstrates illegality in the BZA’s action. Id. We may not try the facts de novo

or substitute our judgment for that of the BZA, nor may we reweigh the

evidence or reassess the credibility of the witnesses. Id. Instead, we must accept

the facts as found by the BZA. Id. However, we conduct a de novo review of any

questions of law decided by BZA. Id.

[10] In the present case, Riverside sought a use variance from the zoning ordinance.

The statute governing use variances provides:

A board of zoning appeals shall approve or deny variances of use
from the terms of the zoning ordinance. The board may impose
reasonable conditions as a part of its approval. A variance may
be approved under this section only upon a determination in
writing that:
(1) the approval will not be injurious to the public health,
safety, morals, and general welfare of the community;
(2) the use and value of the area adjacent to the property
included in the variance will not be affected in a
substantially adverse manner;
(3) the need for the variance arises from some condition
peculiar to the property involved;

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 (4) the strict application of the terms of the zoning ordinance
will constitute an unnecessary hardship if applied to the
property for which the variance is sought; and
(5) the approval does not interfere substantially with the
comprehensive plan adopted under the 500 series of this
chapter.

Ind. Code § 36-7-4-918.4 (emphasis added).

[11] The relevant ordinance of the City mirrors these requirements and provides:

C. BZA approval of Use Variances
a. The Board may grant a variance from use if, after a public
hearing, it makes findings of facts in writing, that:
1. the approval will not be injurious to the public health,
safety, morals, and general welfare of the community; and
2. the use and value of the adjacent areas to the subject
property are not adversely affected; and
3. the need for a variance stems from a condition unusual or
peculiar to the subject property itself; and
4. the strict application of the terms of this Ordinance will
results in an unnecessary hardship if they were applied to the
subject property; and
5. the approval of the variance does not contradict the goals
and objectives of the Comprehensive Plan.

Jeffersonville, Ind., Ordinance 12.3(C), available at: https://cityofjeff.net/wp-

content/uploads/2012/03/images_Jeffersonville_Zoning_Ordinance_-

_Updated_Signs.pdf.

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[12] When making a decision on such matters, the BZA is required by statute to

enter written findings of fact:

The board of zoning appeals shall keep minutes of its
proceedings and record the vote on all actions taken. All minutes
and records shall be filed in the office of the board and are public
records. The board shall in all cases heard by it make written findings of
fact.

I.C. § 36-7-4-915 (emphasis added). This statute’s use of the word “shall” is

mandatory and places a duty on the BZA to enter findings of fact. See Habig v.

Harker, 447 N.E.2d 1114, 1116 (Ind. Ct. App. 1983).

[13] The BZA argues that the statute simply requires “written findings of fact,” not

specific written findings of fact, and that its bare-bones “findings” satisfy this

requirement. In support of its argument, the BZA cites Long v. Bd. of Zoning

Appeals for City of Indianapolis, 134 Ind. App. 97, 99, 182 N.E.2d 790, 791

(1962), which held that, absent any reference to required findings in the

applicable statute, special findings of fact were not required.

[14] However, our supreme court has since held that:

For reasons which exist independently of the statute, the Board is
required to set out findings of fact which support those
determinations. The major reason for this is to make possible an
adequate judicial review of the administrative decision. . . . These
facts should be found specially and not generally. The findings must be
specific enough to enable the court to review intelligently the
Commission's decision.

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 Carlton v. Bd. of Zoning Appeals of City of Indianapolis, 252 Ind. 56, 64, 245 N.E.2d

337, 343 (1969) (emphasis added) (citations and internal quotations omitted).

This requirement has since been repeated by this court. See Columbus Bd. of

Zoning Appeals v. Wetherald, 605 N.E.2d 208, 211 (Ind. Ct. App. 1992); State ex

rel. Newton v. Bd. of Sch. Trustees of Metro. Sch. Dist. of Wabash, 404 N.E.2d 47,

48–49 (Ind. Ct. App. 1980); Bridge v. Bd. of Zoning Appeals of City of Ft. Wayne,

180 Ind. App. 149, 152, 387 N.E.2d 99, 101 (1979).

[15] Indeed, we have held that these written findings are necessary to ensure

adequate judicial review of administrative decisions. Holmes v. Bd. of Zoning

Appeals of Jasper Cty., 634 N.E.2d 522, 525 (Ind. Ct. App. 1994). Thus, the

BZA’s findings must be tailored to address the specific facts presented to the

Board, and the Board must enter both specific findings of fact and ultimate

findings, or determinations. Wastewater One, LLC v. Floyd Cty. Bd. of Zoning

Appeals, 947 N.E.2d 1040, 1051 (Ind. Ct. App. 2011) (citing Network Towers,

LLC v. Bd. of Zoning Appeals of LaPorte Cnty., 770 N.E.2d 837, 844 (Ind. Ct. App.

2002)). Accordingly, if the BZA’s findings are merely a general replication of

the requirements of the ordinance at issue, they are insufficient to support the

BZA’s decision. Id. (citing Metro. Bd. of Zoning Appeals, Div. II, Marion Cty. v.

Gunn, 477 N.E.2d 289, 300 (Ind. Ct. App. 1985)).

[16] Here, the BZA’s findings of fact are nothing more than a recitation of the

statutory language and an indication of how the members of the BZA voted on

whether these statutory requirements had been met. In the portion of the form

used by the BZA to record its findings, the space left for specific findings was
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 left blank. Thus, the BZA’s “findings” are nothing of the sort required to permit

adequate judicial review of the BZA’s decisions. See Carlton, 252 Ind. at 62-63,

245 N.E.2d 337, 342-43 (holding that board’s findings were insufficient where

they merely repeated language of relevant statute and rejecting claim that voting

forms of the members of the board, which also simply mirrored the language of

the relevant statute without specific findings, were “findings” sufficient to

permit judicial review); Wastewater One, 947 N.E.2d at 1051 (citing Gunn, 477

N.E.2d at 300) (noting that findings containing mere repetition of the language

of the ordinance are insufficient to permit judicial review).

[17] The BZA argues that the minutes of the BZA’s hearing were “incorporated into

the findings of fact and sufficiently support the BZA’s written findings.”

Appellee’s Br. p. 7 (citing Ex. Vol., Respondent’s Ex. A, p. 167). First, we see

no provision in the BZA’s “findings” that incorporates the minutes of the

BZA’s hearing on this matter. Moreover, the “findings” as set forth in the

minutes of the BZA again simply mirror the language of the relevant statute

and ordinance. See Ex. Vol., Respondent’s Ex. A., p. 173. The rest of the

minutes contain summaries of the testimonies and arguments of the parties for

and against Riverside’s request. Again, this is insufficient to permit judicial

review of the reasons for the BZA’s ultimate decision. We therefore conclude

that the findings entered by the BZA in the present case are insufficient to

permit adequate judicial review of BZA’s decisions.

[18] However, our conclusion that the BZA’s findings were insufficient does not

entitle Riverside to a new hearing. The proper remedy in the absence of

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 adequate factual findings is remand to the board to enter findings of fact in

support of its conclusion. Gary Bd. of Zoning Appeals v. Eldridge, 774 N.E.2d 579,

583 (Ind. Ct. App. 2002). We therefore reverse the judgment of the trial court

and remand this case to the BZA with instructions to enter specific findings,

within forty-five days of the date this opinion is certified, tailored to address the

specific facts presented to the BZA, in support of its decision to deny

Riverside’s request for a use variance.

[19] Reversed and remanded.

Baker, J., and Pyle, J., concur.

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