Dissenting Opinion
Prime, J.— I must respectfully dissent in this matter. The opinion submitted by Judge Cooper reverses upon the ground that the appellee did not follow certain procedural rules, to-wit: That the appellee should have first applied to the Building Inspector, be rejected by him, and then appeal to the Board. I do not interpret the statute nor the ordinance as requiring this. In my opinion the Board could entertain an original application as was done here by the appellee. The Board’s own procedure for an original application was followed by the applicant upon forms provided to the appellee by the Board. Notices were published and personal notices were sent by certified mail to all adjacent landowners. These adjacent landowners made no objection to the variance. The record seems to disclose that no evidence was offered against the application. The Board did not deny appellee relief because of the fact that he had not sought approval of the Building Inspector, but based its denial upon other reasons. The Board did not state that the reason for its refusal to grant the appellee relief was because the appellee failed in any procedural step. We believe the fact that the application *206was received, legal notices published, and a full hearing held, would indicate that the hearing was properly held.
It appears to me that if there was a flaw in the procedure, the petitioner should have been so informed by the Board.
After all other steps were followed and a full hearing held, it would appear that to exact a penalty at that point would be a sham and a useless thing.
Where a petition for certiorari to review the decision of the Board of Zoning appeals granting a variance alleged that the application for the variance was not filed by an owner, lessee, tenant or occupant of the property, such allegation even if proved, could be nothing more than irregularities within the meaning of such statute. In proceedings for review of the decisions of the Board of Zoning Appeals for illegality, Courts are inclined to treat defects that are not plainly jurisdictional as irregularities rather than as illegalities. Board of Zoning Appeals — The City of Indianapolis v. Moyer, et al. (1940), 108 Ind. App. 198, 209, 27 N. E. 2d 905.
Where remonstrators appeared in person and by counsel at a hearing before the Board of Zoning Appeals on an application for permit to erect a church in a residential area and protested the granting of the application, such appearance amounted to a waiver of any irregularity or imperfections in the service of notice of the hearing. Keeling, et al. v. Board of Zoning Appeals of Indianapolis, et al. (1946), 117 Ind. App. 314, 321 — Trans. Denied: April 1, 1947 69 N. E. 2d 613.
In my opinion the merits of the case were in favor of the appellee and I would affirm the judgment of the trial court.
Note. — Reported in 233 N. E. 2d 672.