Dissenting Opinion
Faulconer, J.The majority opinion ignores the fact that the Board made and filed its determinations in writing separately from the “work sheets” which failed entirely to contain the fifth determinate required by the statute. It further treats the “work sheets” as the Board’s findings of the determinates and to supply the above deficiency. It further has supplied, under the term irregularity, a vote by Board member Owen on the fifth required determinate even if the work sheets could legally be sustituted for those required. Besides holding that “work sheets” establish the five determinates the majority opinion holds the same work sheets to be the “detailed findings to support the required determinates,” which they could not be under the most liberal construction. This, in my opinion, is going to the ultimate extreme in order to affirm a Board’s decision and is another step in establishing the total uselessness of an appeal and review of the Board’s decisions.
Although an administrative agency has wide discretion and is not bound by the usual rules of evidence and procedure which prevail in courts of law, it is required to follow the *472procedure and mandates of the Legislature specified in the statutes by which it is created and regulated.
Acts 1959, ch. 380, § 25, p. 1033, § 53-969, Burns’ 1964 Replacement, is clear and definite in what the Zoning Board is required to do and find. Failure to comply with the statutory requirements makes their decision illegal.
Judge Hunter speaking for this court, in Board of Zon. App. v. American Fletcher Nat. B. & T. Co. (1965), 139 Ind. App. 9, 205 N. E. 2d 322, at page 324, 5 Ind. Dec. 109, at page 112, (transfer denied), in reversing a decision of the trial court which had granted a variance denied by the Zoning Board, stated:
“. . . each cause in § 53-969, supra, for a variance must be unequivocally present, giving wide construction to the total of the evidence introduced both before the Board and that given before the trial court, . . .” See also: Marion County Bd. of Zon. App. v. Sheffer & Clark, Inc. (1966), 139 Ind. App. 451, 220 N. E. 2d 543, 9 Ind. Dec. 292.
I conclude that all five determinates set out in Burns’ § 53-969, supra, must be set forth in writing by the Board. Appellee points out that, although the written determination of the Board contains only four of the determinates specified in the statute, each member signed a separate written form containing the five determinations. An examination of these five separate forms discloses that each form was identical and read as follows:
“INDIANAPOLIS BOARD OF ZONING APPEALS VARIANCE NO. 614-64 FINDING OF FACTS ON PETITION FOR VARIANCE OF ZONING ORDINANCE
“Yes 1. The grant of the variance will not be injurious to the public health, safety, morals, and general welfare of the community because____________________________________
“Yes 2. The use or value of the area adjacent to the property included in the variance will not be adversely affected because _____________________________________________
*473“Yes 3. The need for the variance arises from some condition peculiar to the property involved and does not exist in similar property in the same zoning district because____
“Yes 4. The strict application of the terms of the ordinance will constitute an unusual and unnecessary hardship if applied to the property for which a variance is sought because _____________________________________________
“Yes 5. The grant of the variance does not interfere with the metropolitan comprehensive plan since no zoning ordinance or ordinances classifying or restricting the use of or otherwise applicable to the property involved shall be considered to be a part of such metropolitan comprehensive plan because ________________________________________
Signature ¡3/ John F. Sullivan”
A further examination of these forms reveals that on three of them there was a typewritten “yes” before each of the five determinations and that on the third member’s form a “y” was typed preceding each of the first four determinates and nothing preceding the fifth. The fourth and fifth members voted no to granting the variance. Appellee argues that since the forms contained all five determinates, and since the failure to put a “y” before the fifth determinate on one member’s form was “an error in typing,” the majority of the board members actually found the five requisite determinates to support, the granting of the variance.
I cannot agree with the contention of appellees. In the first instance, the Board made findings of four of the determinates separate from the “forms” signed by each Board member. In the second instance, although these forms are obviously “work sheets,” they are designated “Finding of Facts of Petition for Variance of Zoning Ordinance” and a review court cannot, in my opinion, assume that the failure of a member’s “work sheet” to show a “y” before the fifth determinate is merely a “secretarial error” in light of the fact that it was the only determinate missing from the majority finding of the Board separate from the members’ work sheets. It is also revealing that at the end of each, determination on the “forms” *474the word “because” appears with a blank space indicating to me that the Board member was to supply a reason for finding that determination.
I am of the further opinion that even if we consider the absence of a “y” before the fifth determinate on the work sheet of member Owen was merely a “secretarial error,” and we further assume that such work sheets can take the place of the separate finding of determinations, from which No. 5 determination was absent entirely, this decision of the Board is still illegal for the failure of the Board to make any “Detailed written findings of fact sufficient to support such determinations” as required by Burns’ § 53-969, supra.
In the 1965 amendment, the requirement that the Board make “detailed written findings of fact sufficient to support such determinations” was deleted, however, we are not concerned with such amendment in this cause.
The only alleged findings are those separate forms of each member we have discussed above. These, being only verbatim statments of the statutory determinations, are, at best, conclusions and meet none of the requirements of findings of fact. Also, an examination of said forms indicates the reason for each conclusion was to be supplied which would be the facts to support the conclusion.
This court recently discussed the sufficiency of findings of fact by Zoning Boards and approved the findings used in that cause. Kessler-Allisonville C. L. v. Marion County Bd of Z. A. (1965), 137 Ind. App. 610, 209 N. E. 2d 43, 6 Ind. Dec. 109 (transfer denied).
I, therefore, conclude that the decision of the Board was illegal for its failure to make all of the five determinations in writing and to make detailed written findings of fact as required in Burns’ § 53-969, supra.
I would reverse with instruction to grant appellants’ motion for a new trial.
NOTE. — Reported in 235 N. E. 2d 503.