Judge rules against BZA costs county more than 15k
STARKE — The issue of a structure, which has caused great controversy in rural Grovertown, owned by Walter and Julia Ford (AKA Julia Povalaitis) was ruled on by Patrick Blankenship, a special judge for Starke Circuit Court Jan. 22.
The case stemmed from a controversy that arose when Julia Ford purchased a used manufactured commercial office structure in October 2011. She then applied for a building permit for the structure, which was a salvage unit certified for use in Illinois, to convert it into a single family dwelling that she placed on property located at 6690 E. 250 N. in rural Grovertown. Several residents in the area where Ford placed the structure filed grievances because they claimed the structure being on that land and in the state was against Indiana Code.
George and Betty Dotlich, James and Linda Siroky, and Anthony and Jane Standifer filed suit against the respondents: Starke County Board of Zoning Appeals (BZA) And Walter and Julia Ford, when countless measures taken by the Dotlichs and area supporters failed to yield the groups' desired results, which was to have the building permit that was issued revoked.
Betty Dotlich maintained that the issued permit was in violation of Indiana code. And she went to great lengths to try to get the BZA to issue a ruling that the structure should be removed from the residential area because it is a commercial unit that Dotlich, and area supporters, claimed was devaluing their neighborhood.
The Planning Commission revoked the first permit issued to Ford after much argument from residents in the rural Grovertown area where the structure is located. However, the permit was reissued Jan. 11, 2012 and the structure was reclassified as a single-family residential dwelling. Dotlich said the reclassification was also in error, and insisted that the structure is commercial in nature.
Dotlich claimed that the structure wasn't legal in Indiana, and was built according to outdated codes for commercial use in Illinois.
Dotlich presented her case to state officials who provided her with correspondence that backed up her argument with the structure. She gave the correspondence to the BZA in an attempt to finally resolve the issue.
"By issuing this permit, the county is allowing the owner to do something that is illegal. I provided the BZA with a letter that I received from Mr. Dean Illingworth, the building law compliance officer for the state of Indiana. Mr. Illingworth said in two different places in the letter that the structure is not legal for use in Indiana and should be removed from the state," Dotlich said.
Despite the letter from the state official, the BZA ruled to allow the structure to remain in Starke County.
Dotlich said the BZA's decision to allow Ford to keep her structure exactly where it is located set a dangerous precedent.
The Dotlichs, along with two other families, decided to take their case to the courts as that was the only course of action left for them to take.
In his ruling, Blankenship said the court was charged with determining whether or not the BZA:
• Lacked subject matter jurisdiction
• Employed proper procedure
• Whether the decision was unsupported by substantial evidence, or
• Was arbitrary, capricious or in violation of constitutional, statutory or legal principles.
The court ruled the BZA did have jurisdiction over the subject matter. However, that was the last favorable finding for the BZA or the Fords in the judge's final ruling.
The judge ruled that the BZA did not employ proper procedures when dealing with the matter of the structure.
One area where the BZA came under scrutiny was meetings. Blankenship said the BZA failed to open the meetings up for public comment on the issue of permit appeal at either the February or March meetings. Indiana Code states that other persons may appear and present relevant evidence.
"The failure of the BZA to allow for public comment deprived those present including the petitioners herein and ironically, the Fords, who were also present, of providing relevant evidence. As it pertains to allowing public comment, the BZA failed to employ proper procedure," Blankenship said in his ruling.
The BZA again failed to enact proper procedure when they corresponded with Ford before a hearing, which is again against Indiana Code.
"On March 2, 2012, two weeks before the March 15 public hearing at which the BZA made its decision on the appeal of the Petitioners, Ford sent an email to each of the BZA members and their attorney at their personal email accounts. This email was ex-parte communication pleading their case and notifying the members that should the Petitioners prevail on their appeal that she intended to raise equitable estoppel in any lawsuit. The only purpose that this communication served was to influence the board's decision," Blankenship's ruling stated.
Blankenship said failure to notify the petitioners of the communication was yet another instance of improper procedure on the BZA's part.
"At the March hearing, neither the Board nor its attorney disclosed the ex-parte communication to the Petitioner. The Petitioner only learned about this communication during the preparation of the joint record. The Petitioner was never allowed an opportunity to address the statements made by Ford. The failure to disclose this communication had the effect of allowing Ford to have 'private/public' comment that the Board denied to everyone else. There can be doubt that the Board and its attorney should have disclosed this email at the beginning of the March hearing and allowed the Petitioners an opportunity to respond. The failure of the Board to make such a disclosure not only gives the appearance of impropriety, but is in fact improper, and violates the very basic notions of due process," Blankenship ruled.
Judge Blankenship said the burden of proving a case lies with the petitioners — and in this instance, Blankenship said the petitioners more than proved their case.
"The decision of the BZA was unsupported by substantial evidence. The initial burden to prove its case rests upon the Petitioners. Once the Petitioners have presented substantial evidence to support its appeal, the burden does shift to the Zoning Administrator to present evidence to support his decision granting the Building Permit. In the present case, the Petitioners presented overwhelming evidence to support their objection to BP2012-1 (permit granted to Ford). Not only did the Petitioners present evidence that the mobile structure was a mobile commercial structure titled in Illinois, but also that the state of Indiana does not have reciprocity with the state of Illinois and therefore the mobile structure would have to either be removed from the state of Indiana or certified under applicable state code as a mobile structure," Blankenship ruled.
The BZA opted to change the classification of the structure as justification of awarding a permit. However, Blankenship ruled this as improper procedure too.
"In order to be reclassified, the mobile structure would have to be sent back to the factory for modification to bring up to residential standards for Class two structures which are designed and intended for residential use, then certified by the state. The BZA argues that Ford can simply remove the data plate, which the equivalent of an automobile's vehicle identification number, put the structure on a foundation, and it is no longer a Class one or Class two. structure. This argument must also fail. It is not the data plate that makes the structure a Class one structure, it is the design. The design of Class one or Class two. structures is not regulated at the county level, but rather the state level. The only entity that has the authority to change the classification of this structure for use in the state of Indiana is the state itself," Blankenship said in his ruling.
The BZA argued that the design of the structure wasn't an issue because Ford intended to use the place as a dwelling; and the ordinance, according to the BZA does not have anything to do with design, but instead use. Blankenship tossed this explanation out as faulty too.
"If this was a valid interpretation of the zoning ordinance, then anyone could place any structure in any district in Starke County by merely stating that their use is intended to be something other than the intended design of structure but in line with the zoned use. Extending this argument to the absurd, one could place an RV in a residential district by removing the engine and axles, placing the structure on a foundation and claim that the structure is intended to be used as a single family residence, not an RV. This argument must fail for obvious reasons. In fact the Zoning Ordinance has no guidelines for mobile structures or their modifications upon which the BZA could support any decision," Blankenship ruled.
Blankenship said while the petitioners provided more than ample evidence to support their case, the BZA provided next to no evidence to justify issuing Ford the permit.
"Finally was the decision of the BZA arbitrary, capricious or in violation of constitutional, statutory or legal principles. The evidence clearly shows that the volume of competent evidence was presented by and supports the position of the Petitioners. The Zoning Administrator presented virtually no evidence which would support his decision to grant the building permit," Blankenship's ruling said.
Judge Blankenship said the BZA ignored all evidence on the matter that was presented by the petitioners.
"The discussion by the board was not about the evidence presented by Petitioner, in fact, the transcript indicates that the board ignored all the information presented by the Petitioner," Blankenship said.
The judge said the BZA made up its mind to deny the appeal before the hearing was even held.
"The BZA's findings are truly devoid of findings of actual facts. Nothing points this fact out more than the BZA making no findings as to standing of the Petitioners, the fact that the structure being discussed is a mobile structure, the zoning district involved, what state guidelines may apply or don't apply, or even what portions of their own zoning ordinance applies. The BZA is required to make specific findings of fact to support their decision. The failure to make even basic findings of fact indicates that the BZA did not give sufficient consideration to the evidence or the issues on appeal before it. It is clear from the transcript of the March hearing and from the findings of fact, that the BZA had made its decision to deny the appeal before the hearing, because there was no discussion of any of the evidence or facts presented by the Petitioners."
The judge's ruling states that both the BZA and Ford claimed the petitioners failed in proving they had a real grievance. Blankenship disagreed with both on this issue too.
"The BZA and Ford raise issues of standing of the Petitioners to bring this appeal because the Petitioners failed to show or allege that they suffered a substantial grievance, or were denied a personal or property right, and the injury suffered was pecuniary in nature. The record is clear that the Petitioners had a substantial grievance. The Zoning Administrator and the BZA were not complying with either state administrative rules and guidelines regarding to use or reconstruction of mobile structures nor the county's own zoning ordinance. In fact, the Zoning Administrator and the BZA were making up their own guidelines on the fly during the hearings."
Blankenship said in his ruling that the BZA purposefully lied to the petitioners and the public.
"The BZA had at least two opportunities to allow public comment, both times they failed. When this failure was raised at the March hearing, both the BZA and its attorney lied to the Petitioners and the pubic at large, that public comment was provided for at the February meeting. The BZA knew this statement was false. By quickly quashing public comment and moving to vote as quickly as they did, without any meaningful discussion, the BZA acted in a manner consistent with a board who had already determined the outcome before the public hearing began. The BZA continued to act in bad faith by maintaining its position that public comment was allowed in its argument before this court, in spite of the evidence to the contrary contained in its own joint record."
Blankenship said the BZA acted in bad faith. The decision of the BZA was vacated and court costs and attorney fees were awarded to the petitioners.
"Additionally, the failure to disclose the ex-parte communication between Ford and the BZA demonstrates the BZA's bad faith. The BZA and its attorney are aware of I.C. 36-7-4-920(g), which specifically prohibits this communication. The only way to interpret the contents of this email is that it was intended to influence the decision of the BZA. Given the fact that the BZA made no specific findings of fact to support its decision, the intent of the email would appear to have succeeded. What compounds the bad faith is that the attorney for the BZA knew about the email and failed to disclose this fact to the Petitioners. Because the BZA acted in such bad faith and lied to the Petitioners and intentionally withheld ex-parte communication, the Petitioners should be awarded costs and attorney fees pursuant to I.C. 34-52-1-1. The Petitioners have filed an affidavit of itemized cost and attorney fees herein in the amount of $15,164.
It is therefore ordered, adjudged and decreed that:
• The Findings of Fact and Decision of the Starke County BZA are vacated
• That this case is remanded to the Starke County BZA for the purpose of issuing new findings consistent with this Court's findings herein and rendering its decision accordingly.
• That the Starke County BZA shall have 45 days to enter its new findings of fact and decision.
• That pursuant to I.C. 34-53-1-1, the Petitioners are awarded costs and attorney fees in the amount of $15,164," Blankenship ruled.
Betty Dotlich said the fact that the people and the county have to pay for the incompetence of the BZA is upsetting. Dotlich also said that while the petitioners were awarded court costs, there was still a substantial amount of out of pocket expense that they will not recover.
"I find it very upsetting that the taxpayers of the county are now going to foot the bill for this appeal because the BZA members failed to follow procedure and do the jobs they were appointed to do. If they had followed the rules and enforced the codes and ordinances already in place, when they had the opportunity to do so, we would not have been forced to take this matter to court. The amount the judge ordered is only for the attorney fees involved in the appeal of the BZA decision. This amount does not include the rather significant amount of money we spent for the attorney to represent us at the December hearing, where the initial permit was revoked, legal notices required or the expense of hiring a court reporter for each hearing date and purchasing transcripts to be submitted as evidence to the court," she said.