Mishler v. County of Elkhart

OPINION ON PETITION FOR REHEARING

In a published opinion rendered April 11, 1988, we reversed the trial court's summary judgment denying Mishler and other landowners a collateral attack on a La-Grange Circuit Court judgment ordering the Elkhart Board of County Commissioners to rezone property owned by Dallas Woodward, Jr. Our Decision was based on the determination that the LaGrange Court order was void for lack of jurisdiction to render the particular relief.

Woodward petitions for rehearing on the ground we erroneously held that Article 3 *699§ 1 of the Indiana Constitution applies to county government1 We deny Woodward's petition with opinion in order to clear up any misunderstandings as to the basis of our decision.

In our opinion, we noted that Mishler argued that the separation of powers doctrine precluded the trial court from ordering rezoning of the property. We did not, however, base our decision on this argument. We relied on Bolerjack v. Forsythe (1984), Ind.App., 461 N.E.2d 1126, which analyzed the Administrative Adjudication Act (AAA) and common law doctrines of judicial review of an agency claim.

Noting that the AAA does not apply to county agencies, we determined that "issues concerning the permissible scope of judicial review are governed by principles common to both the AAA and general principles of administrative law, regardless of whether the agency is local or state-wide." Id. at 1129. Furthermore, it is a well recognized principle "that the court may not substitute its judgment for that of the administrative commission and particularly make an affirmative order." Id. at 1131, quoting Public Service Commission v. Chicago, Indianapolis and Louisville Railway Co. (1956), 235 Ind. 394, 132 N.E.2d 698, 700-701. Thus, we concluded in Bolerjack, and in the present case, that the trial court is limited to either affirming or setting aside the determination of the agency. If the agency determination is set aside, the trial court may remand the cause for further proceedings. Supra, at 1131. Consequently, the LaGrange Circuit Court was without jurisdiction to order the Elk-hart Commissioners to rezone Woodward's property.

. Woodward petitions for rehearing on two other grounds which we also reject. City of Anderson v. Associated Furniture, Inc. (1981), Ind., 423 N.E.2d 293, is not on point because the Supreme Court did not address the issue raised here. Further, the LaGrange Court judgment is void in its entirety because the extent of the judgment is to order the Commissioners to rezone Woodward's property.