Marker v. Mandich

SULLIVAN, Judge,

dissenting.

The majority's affirmance of the trial court's determination is premised upon the conclusion that the Board of Zoning Appeals (BZA) in 1986 was bound by its 1985 denial with respect to the construction proposed. I believe this conclusion to be in error.

It is clear from the record that the 1985 proceedings contemplated not only a farrowing building but a finishing building as well.1 The 1985 BZA decision did not refer to the proposed construction of buildings-whether farrowing, finishing, or both. Rather, the decision "supported" the decision of the Building Commissioner to "revoke a building permit to allow a farrowing hog operation." Record at 46. This BZA decision is clearly supportable because the contemplated construction and operation, according to the evidence, might have reasonably been considered to be a prohibited expansion of the then-current operation. See Stuckman v. Kosciusko County Board of Zoning Appeals (1987) Ind., 506 N.E.2d 1079.

On the other hand, the 1986 proceedings were initiated after the ordinance amendment which, as of that time, permitted an upgrade of an operation. In my view, Markers were entitled to attempt to bring themselves within the purview of the new law. This is particularly so since the new proposal did not include the earlier requested new or enlarged finishing facility. The 1985 proceedings concerned a construction larger in scope and size than did the 1986 proceedings, and in light of the new ordinance, the BZA was not bound by principles of res judicata nor was the certiorari court correct in deciding the case by application of such principles.

1 would reverse and remand with instructions to reconsider the review of the BZA decision or in the alternative to affirm that decision.

. The testimony at the 1985 BZA hearing clearly demonstrated that a finishing building was proposed: "There is also proposed another finishing room in addition to the current finishing room on site." Record at 34.