Appellant Pro Se
George C. Bagnall
Beverly Shores, Indiana
Attorney for Amicus Curiae
Jo Angela Woods
Indiana Municipal Lawyers
Association, Inc.
Indianapolis, Indiana
Attorney for Appellee
Jeffrey F. Gunning
Pinkerton & Friedman, P.C.
Munster, Indiana
Attorney for
Appellees/Intervenors
Terry Hiestand
Chesterton, Indiana
IN THE
INDIANA SUPREME COURT
GEORGE C. BAGNALL and
ANN H. BAGNALL,
Appellants (Plaintiffs below),
v.
TOWN OF BEVERLY SHORES, INDIANA; THE BOARD OF ZONING APPEALS OF THE TOWN OF
BEVERLY SHORES, INDIANA; AND MARY FULGUM, PHILLIP DICKERMAN, MICHAEL PAVEL,
PATRICK WAGNER, and GEORGE STEFANEK, In Their Capacity as Members of the
Board of Zoning Appeals of the Town of Beverly Shores, Indiana,
Appellees (Defendants below),
and
MICHAEL PAVEL and DEBORAH PAVEL,
Appellees (Intervenors below).
)
) Supreme Court No.
) 64S05-9909-CV-499
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) Court of Appeals No.
) 64A05-9704-CV-138
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APPEAL FROM THE PORTER SUPERIOR COURT
The Honorable Mary R. Harper, Judge
Cause Nos. 64D05-9606-CP-1465, 64D05-9607-CP-1733, 64D05-9608-CP-2219
ON PETITION TO TRANSFER
March 30, 2000
SULLIVAN, Justice.
The Bagnalls filed three petitions seeking court review of zoning
variance grants to neighboring property owners by the local zoning board.
Finding that the Bagnalls did not properly notify all adverse parties in
accordance with the state zoning law, we affirm the trial court=s grant of
summary judgment to the Board with respect to two of the petitions. We
affirm the trial court’s dismissal of the third petition because the
Bagnalls lack standing as aggrieved parties, but reverse the trial court’s
assessment of attorneys’ fees against the Bagnalls.
Background
Michael and Deborah Pavel apparently owned or had a financial interest
in Lots Six (6) and Eleven (11) located on Lakefront Drive in the Town of
Beverly Shores.[1] George and Ann Bagnall own Lot Seven (7), which is
three lots or approximately 150 feet from the Pavels= Lot 11. Sometime
prior to May 2, 1996, Michael Pavel submitted two petitions to the Board of
Zoning Appeals of the Town of Beverly Shores (ABoard@) concerning Lot 6 C
one seeking a variance from an ordinance so that the Pavels could construct
an addition to the home located on the lot and the other seeking a variance
from an ordinance regarding well location and setback requirements.
Sometime prior to June 6, 1996, Michael Pavel and Diane Hale jointly
submitted a third petition to the Board requesting a variance from a
setback ordinance governing Lot 11.
The Board conducted a series of public hearings at which people spoke
both in favor of and in opposition to the variance petitions. On May 2,
1996, the Board unanimously granted Michael Pavel=s petition to construct
an addition to the Pavel home located on Lot 6[2] (Avariance number one@);
on June 6, 1996, the Board unanimously granted his petition for a setback
requirement variance on Lot 11[3] (Avariance number two@); and on August 1,
1996, the Board unanimously granted Pavel=s petition regarding a well
location on Lot 6[4] (Avariance number three@).
Upon the granting of each variance, the Bagnalls filed with the trial
court a timely petition for writ of certiorari. In each petition, the
Bagnalls named as party defendants the Town of Beverly Shores, the Board,
and the Board members in their official capacities. Michael Pavel was
named as a party defendant in his capacity as a member of the Board, but
the petitions did not name Deborah Pavel or Michael Pavel as party
defendants in their capacity as landowners of the properties subject to the
petitions. The Bagnalls sent notices of their petitions to each party
named as a defendant in the petition.
The Board filed a motion to dismiss each petition. The motions to
dismiss regarding variance numbers one and three contended that the
Bagnalls failed to satisfy the jurisdictional requirement of providing
statutory notice to adverse parties. The motion to dismiss regarding
variance number two (a) contended that the Bagnalls lacked standing because
they were not aggrieved parties and (b) requested attorneys’ fees. The
Pavels also filed a motion to dismiss each of the Bagnalls= petitions on
the ground that the petitions did not designate the Pavels as party
defendants.[5] In apparent response to the Board=s statutory notice
assertions in its motions to dismiss, the Bagnalls later served notices on
Thomas Oberle, Arlene Beglin, and William Kollada, all people who spoke or
submitted letters supporting the Pavel variance requests at the public
hearings. The Bagnalls did not serve notice on Deborah Pavel.
The trial court conducted a hearing and entered judgment granting all
three motions to dismiss and awarding attorneys’ fees to the Town of
Beverly Shores with respect to the variance number two petition. The
Bagnalls appealed. A divided panel of the Court of Appeals reversed the
trial court=s judgments regarding notice and the Bagnalls’ aggrieved party
status and remanded the case for further proceedings to determine whether
Deborah Pavel was an adverse party to each appeal such that the Bagnalls
had to file a notice to her with the clerk.[6] See Bagnall v. Town of
Beverly Shores, 705 N.E.2d 213, 219 (Ind. Ct. App. 1999).
Discussion
I
The Bagnalls first contend that the trial court erred in dismissing
their variance number one and variance number three petitions. The
Bagnalls assert that their failure to file notice to Oberle, Beglin, and
Kollada with the clerk of the court, concurrent with filing the writ
petition, does not constitute a violation of the portion of Ind. Code § 36-
7-4-1005(a) (Supp. 1995) that requires service of notice on each adverse
party. We agree with the dissent to the Court of Appeals=s opinion and
conclude that the trial court properly dismissed the Bagnalls= variance
number one and variance number three writ petitions on the issue of notice.
See Bagnall, 705 N.E.2d at 219 (Rucker, J., dissenting).
Decisions by boards of zoning appeals are subject to court review by
certiorari. Ind. Code ' 36-7-4-1003(a) (Supp. 1995). A person aggrieved
by a decision of a board of zoning appeals may present to the circuit or
superior court in the county in which the premises are located a verified
petition setting forth that the decision is illegal, in whole or in part,
and specifying the grounds of the illegality. Id. ' 36-7-4-1003(b). The
petition must be presented to the court within 30 days of the board=s
decision. Id. The court does not gain jurisdiction over the petition
until the petitioner serves notice upon all adverse parties as required by
Ind. Code ' 36-7-4-1005(a) which provides in pertinent part:
On filing a petition for a writ of certiorari with the clerk of the
court, the petitioner shall have a notice served by the sheriff of the
county on each adverse party, as shown by the record of the case in
the office of the board of zoning appeals . . . . No other summons or
notice is necessary when filing a petition.
Id.; see also Enright v. Board of Zoning Appeals of Monroe County, 661
N.E.2d 886, 888 (Ind. Ct. App. 1996). The Code defines an adverse party as
Aany property owner whose interests are opposed to the petitioner for the
writ of certiorari and who appeared at the hearing before the board of
zoning appeals either in person or by a written remonstrance or other
document that is part of the hearing record.@ Ind. Code ' 36-7-4-1005(b).
We read the language of statutes pursuant to the codified rules of
statutory construction, which provide that A[w]ords and phrases shall be
taken in their plain, or ordinary and usual, sense.@ Ind. Code ' 1-1-4-
1(1) (1998). As the trial court noted, A[t]he plain and ordinary meaning
of the word >on= in the statute=s phrase >on filing the petition= is taken
to mean >at the time of= filing the petition.@ (R. at 173, quoting
Webster=s New Twentieth Century Dictionary 1249 (2d ed. 1979) (definition
no. 7 of “on”)). To comply with the statute, a petitioner must file, with
the clerk, notices to adverse parties contemporaneously to the filing of
the writ petition. Because Astrict compliance with the requirements of the
statute governing appeals from decisions of boards of zoning appeals is
necessary for the trial court to obtain jurisdiction over such cases,@ and
because Oberle, Beglin, and Kollada are adverse parties in this proceeding
who were not served notice on the filing of the petition on June 3, 1996,
the Bagnalls did not secure jurisdiction for their respective variance
number one and variance number three claims. Shipshewana Convenience Corp.
v. Board of Zoning Appeals of LaGrange County, 656 N.E.2d 812, 812 (Ind.
1995).
II
The Bagnalls next claim that the trial court erred in dismissing
their variance number two petition and awarding attorneys’ fees to the Town
of Beverly Shores. The trial court concluded that the Bagnalls were not
aggrieved parties and therefore did not have standing to file the variance
number two writ petition. The trial court also concluded that the Bagnalls
did not properly designate the Pavels as party defendants to their variance
number two petition and therefore the trial court was without jurisdiction
over the complaint.[7] And, the trial court assessed attorneys’ fees
against the Bagnalls, finding that the variance number two petition was
frivolous and groundless.
A person must be “aggrieved” by a board of zoning appeals’s decision
in order to have standing to seek judicial review of that decision. Ind.
Code § 36-7-4-1003(a); see also Union Township Residents Ass’n v. Whitley
County Redevelopment Comm’n, 536 N.E.2d 1044 (Ind. Ct. App. 1989). To be
aggrieved, the petitioner must experience a “substantial grievance, a
denial of some personal or property right or the imposition . . . of a
burden or obligation.” Id. at 1045. The board of zoning appeals’s
decision must infringe upon a legal right of the petitioner that will be
“enlarged or diminished by the result of the appeal” and the petitioner’s
resulting injury must be pecuniary in nature. Id.
“[A] party seeking to petition for certiorari on behalf of a community must
show some special injury other than that sustained by the community as a
whole.” Robertson v. Board of Zoning Appeals, Town of Chesterton, 699
N.E.2d 310, 315 (Ind. Ct. App. 1998).
The Board concedes that a sufficient legal interest is present in
zoning cases if the petitioner owns property that is “adjacent” to or
“surrounding” the subject property but contends that both terms require
that the properties touch or adjoin each other. Appellee’s Br. to the
Court of Appeals at 12 (quoting Williams-Woodland Park Neighborhood Ass’n
v. Board of Zoning Appeals, 638 N.E.2d 1295, 1298 (Ind. Ct. App. 1994)).
However, nothing in Williams-Woodland Park suggests that the petitioners
who were adjudged to be “aggrieved” parties with standing owned property
adjacent to the property involved in the appeal. See id. at 1299. The
Bagnalls contend that their lot is in the “immediate vicinity” of Lot 11
and therefore “surrounds” it. Essentially, the Board argues that
“surrounding” is superfluous language and adds nothing to the requirement
that the petitioner’s property be “adjacent to,” touch, or adjoin the
property involved in the appeal.
We are not inclined to give the term “surrounding” so restrictive a
reading. Where possible, we interpret a statute such that every word
receives effect and meaning and no part is rendered “meaningless if it can
be reconciled with the rest of the statute.” Spaulding v. International
Bakers Servs., Inc., 550 N.E.2d 307, 309 (Ind. 1990). “Surrounding” is not
a superfluous word and as such encompasses petitioners who own property
that is not adjacent to, but is in the vicinity of, the property involved
in variance requests. At the same time, the term is not precise, leaving
to judicial determination whether a petitioner’s property is sufficiently
close to the variance property that its owner is “aggrieved” under the
statute.
Here the trial court found that the Bagnalls’ lot was not adjacent to
or surrounding the Pavel lot in that “there [were] three (3) lots of 50
feet each between Lot 7 and Lot 11 for a total separation of 150 feet” and
that the Bagnalls “[did] not have a substantial grievance, a legal right,
legal interest or pecuniary injury.” (R. at 301.) As such, the trial
court found that the Bagnalls did not show that they were aggrieved within
the meaning of Ind. Code § 36-7-4-1003. We will not set aside a trial
court’s findings unless they are clearly erroneous. Ind. Trial Rule 52(A);
see also Indiana State Highway Comm’n v. Curtis, 704 N.E.2d 1015, 1017
(Ind. 1998). The Bagnalls have not demonstrated that the trail court’s
findings were clearly erroneous. They presented nothing in their petition
nor did they enter any evidence in the record to suggest that the Lot 11
zoning variance would result in infringement of a legal right resulting in
pecuniary injury as required by Williams-Woodland, 638 N.E.2d at 1299, or a
special injury beyond that sustained by the entire community as required by
Robertson, 699 N.E.2d at 315. Therefore, we affirm the trial court’s
findings that the Bagnalls lack standing to petition for judicial review
and are not aggrieved parties within the meaning of the statute.
On the other hand, in light of the proximity of the Bagnall property
to Lot 11, the concerns expressed in the Bagnalls’ writ petition, and the
fact that Michael Pavel was a member of the Board, we cannot go so far as
to conclude that the Bagnalls’ petition was frivolous, unreasonable, or
groundless or litigated in bad faith. Ind. Code § 34-1-32-1(b) (1993).[8]
Therefore, we reverse the trial court’s imposition of attorneys’ fees and
hold that the Board is not entitled to compensation for their legal
expenses.
Conclusion
Having previously granted transfer, thereby vacating the Court of
Appeals=s opinion, we affirm the judgment of the trial court and grant the
Board=s motion for summary judgment with respect to the variance numbers
one and three writ petitions. We also affirm the trial court’s dismissal
of the variance number two writ petition, but reverse the assessment of
attorneys’ fees against the Bagnalls.
SHEPARD, C.J., and DICKSON and BOEHM, JJ., concur.
RUCKER, J., not participating.
-----------------------
[1] As the Court of Appeals noted, the record is confusing as to the
ownership of Lot 11.
[2] Cause No. 64D05-9606-CP-1465.
[3] Cause No. 64D05-9607-CP-1733.
[4] Cause No. 64D05-9608-CP-2219.
[5] The trial court found that the Bagnalls did not properly name the
Pavels as party defendants to their variance one and variance three writ
petitions. Because we affirm the trial court’s dismissal of all three
petitions on separate and sufficient bases, we decline to decide whether
the Bagnalls’ failure to name the variance applicants as defendants was
fatal to their petitions.
[6] Ind. Code § 36-7-4-1005(a) requires the petitioner for the writ of
certiorari to file the notices to adverse parties with the court clerk for
service by the sheriff.
[7] See footnote 2 supra.
[8] Ind. Code § 34-1-32-1(b) (1993) was repealed in 1998 by P.L. 1-1998, §
221 and recodified without substantive change at Ind. Code § 34-52-1-1
(1998).