BAKER, Judge.
In this case, the sins of a contractor were imputed to the homeowners of a lake cottage after the contractor failed to obtain the necessary permits for new a deck and stairs. To remedy the situation, the contractor sought a post-construction variance for the newly-constructed deck and stairs because neither complied with a zoning ordinance requiring a twenty-foot lakefront setback. The Board of Zoning Appeals approved the variance for the stairs with the condition that the deck had to be brought into compliance with the twenty-foot
Appellants-petitioners James and Janice Mies (collectively, "the Mieses") appeal the trial court's order reversing the decision of the Steuben County Board of Zoning Appeals (BZA) and remanding the case back to the BZA, after concluding that the BZA's decision granting the Mieses a development standards variance with a void condition was a legal nullity. The Mieses argue that the underlying variance and void condition are severable and that the trial court should have upheld the underlying variance while voiding the condition. Additionally, the Mieses argue that even if the trial court did not err in voiding their variance, it erred by concluding that a deck that was attached to their cottage had lost its status as a nonconforming structure that is exempted from the development standards ordinances.
The BZA cross-appeals, arguing that the trial court elevated form over substance when it concluded that it imposed an unauthorized condition on the Mieses' variance. In the alternative, the BZA contends that the Mieses consented to the condition by not objecting to it.
Concluding that the Mieses did not consent to the unauthorized condition, that the underlying variance is not severable from the void condition, making the BZA's entire decision a legal nullity, and that the Mieses' new deck lost its nonconforming status and is no longer exempted from the zoning ordinances, we affirm the decision of the trial court.
The Mieses are residents of Birmingham, Michigan but own a lot adjacent to Lake Gage in Steuben County. The lot has, at all relevant times, been improved with a cottage. The Mieses' lot drops about twenty feet in elevation over a distance of roughly thirty feet to the lake.
Prior to the construction activities discussed below, the lot was also improved with an L-shaped deck which wrapped along the lakefront side of the cottage and then around a portion of the side of the cottage. The portion of the deck along the lakefront side of the cottage extended northeast from the second floor of the cottage to within nine or ten feet of the lake. The portion of the deck along the side of the cottage had wooden stairs extending from the side of the deck southeast to a landing. The stairs then extended from the landing northeast to the ground near the lake.
In early 2010, the Mieses noticed that a crack in the foundation of the cottage was worsening because the deck attached to the cottage was slipping towards the lake and putting stress on the foundation of the cottage.
On January 26, 2010, the Mieses obtained an estimate from Travis Kyle of T.K. Construction to repair the foundation and deck. The quote stated that the job included removing the old deck and disposing of it. The total cost for material and labor was $2,900.
Appellant's App. p. 212 (emphasis added).
On April 12, 2010, the Mieses accepted Kyle's updated estimate to perform the quoted work for $8,950. On April 19, 2010, Kyle applied for a building permit for "rebuilding deck," "deck reconstruction 10' x 26' × 23' × 6'" and "replacing old rotted wood decking only" from the Steuben County Plan Commission and Building Department. Appellant's App. p. 194. The Plan Commission responded "ILP not required — replacing old boards on existing deck." Id. at 195. The Building Department responded, "replace Deck Boards only[,] no change to railing[.] [N]o building permit req." Id. at 195.
Kyle did not apply for or obtain a building permit for the repair of the foundation or replacement of the deck. Kyle "then tore down the deck that was affixed to the house, performed the foundation repair, and then rebuilt the deck, which was smaller than the original deck." Appellant's App. p. 202. The new deck extends from the second floor of the front of the cottage to within fifteen feet of the lake, and the new stairs extend from the side of that deck to within two feet of the lake.
On May 6, 2010, a "stop work order" was issued by the Plan Commission to the Mieses for violating the Steuben County Zoning Ordinance (SCZO). Appellant's App. p. 253. Specifically:
Appellant's App. p. 253 (emphases added).
On July 7, 2010, Kyle applied for a "post construction" building permit for a "Deck/Stairway" from the Plan Commission and Building Department. Appellant's App. p. 280. Kyle was advised that the new deck and new stairs would now have to comply with the SCZO's twenty-foot lakefront setback requirement. Kyle was also advised that he could apply on
On July 8, 2010, Kyle also submitted on behalf of the Mieses a "Dimensional Variance Application Form" to the BZA describing the nature and size of the existing improvements as "24' × 24' L-shaped deck and stairs from deck to ground" and requesting a single variance for "2' lakefront setback for stairs R/T 20'." Appellant's App. p. 260. The BZA assigned the application Petition No. V-10-47. Id. It is undisputed that the new deck extends five feet into the twenty-foot setback area, and the new stairs extend eighteen feet into the twenty-foot setback area.
The BZA scheduled and issued a notice of hearing on the application for August 9, 2010, stating the "purpose of the application is as follows: (V-10-47) James & Janice Mies petition for one-post construction, developmental-standard variance for a deck. Variance is for lakefront setback of two (2) feet rather than the twenty (20) feet required." Appellant's App. p. 136 (emphasis in original).
On August 9, 2010, the BZA held its hearing on the Mieses' Petition No. V-10-47. At the hearing, Kyle testified on behalf of the Mieses that he knew he should have obtained a permit for the new deck and stairs but that he did not do so because he "was swamped" and because the Mieses wanted the new deck and stairs for a "family reunion get together."
During the hearing, a member of the BZA asked whether the BZA had to say "yes or no to the whole thing" or whether the BZA could "say this has to happen to the deck and this has to happen to the stairs?" Appellant's App. p. 185. The BZA and Kyle discussed at length whether the new deck could be shortened to meet the SCZO's twenty-foot setback requirement, while maintaining the stairs. Kyle conceded that it could be done. More particularly, the following colloquy occurred between the BZA and Kyle:
Appellant's App. p. 188-90.
The BZA proceeded to vote on Petition V-10-47. The voting forms described the variance request as a "post-construction lakefront setback of two (2) feet rather than the twenty (20) feet required for a deck." Appellant's App. p. 244. The BZA concluded that all requirements for a dimensional variance had been met with respect to the stairs. That said, the BZA checked the box "Approved with Conditions" on the voting form. Id. The BZA noted that a two-foot setback was permitted for the stairs as they had been constructed with the "[r]est to be in compliance." Id.
No appeal was taken from the BZA's August 9, 2010 action on Petition V-10-47. However, the Mieses and Kyle took no steps to bring the new deck into compliance with the SCZO or the variance approved by the BZA.
On December 7, 2010, enforcement officers for the Plan Commission issued a Notice of Violation (NOV) to the Mieses, indicating that the deck had been constructed without an Improvement Location Permit (ILP) and that although the BZA had approved a variance, "the variance came with conditions," namely, "that the deck had to be brought into compliance" with the twenty-foot setback requirement and that "[n]o one has obtained a permit so that the deck can be brought into compliance." Appellant's App. p. 287.
On January 6, 2011, the Mieses, through legal counsel, responded to the NOV by letter to the Steuben County Plan Director. In this letter, the Mieses argued that the improvements to their nonconforming deck are not in violation of the SCZO. Additionally, the Mieses maintained that the BZA had no statutory authority to impose conditions on the variance and, consequently, the only enforceable provision of the variance is the two-foot setback for the stairs. The Mieses agreed to obtain any necessary permits and to pay all filing fees but emphasized that all such
On February 7, 2011, the Plan Director responded to the Mieses by rejecting the various arguments set out in their January 6, 2011 letter. More particularly, the Plan Director responded that once the "deck was completely removed from the property, and a new deck was built in its place... the non-conformity cannot be later reestablished. Appellant's App. p. 276-77. The Plan Director also conceded that while the enabling act did not expressly grant authority to the BZA to impose conditions on a variance, "we believe imposition of conditions is a necessary action of local government to carry out its duties, namely granting relief from standards of the SCZO while still protecting the health, safety, and welfare of the applicants, surrounding properties, and the community." Id. at 277. The Plan Director also highlighted the fact that the agent for the Mieses was allowed to speak and although "the agent did not expressly agree to the conditions, he did not object to them. Rather, he asked what he would need to do in order to comply with the conditions." Id. The Plan Director invited the Mieses to appear before the BZA to have the conditions of their variance amended. In addition, the letter informed the Mieses that they may appeal the decision within ten days and that the Plan Commission would suspend action as they worked towards a resolution.
On March 1, 2011, the Mieses appealed to the BZA the decision that their deck does not comply with the SCZO and the determination that once a nonconforming deck is removed, it cannot be reestablished. The BZA assigned this appeal Petition No. AP-11-01. A hearing on Petition AP-11-01 was scheduled for April 11, 2011.
Also on March 1, 2011, the Mieses appealed "to amend conditions of an approved developmental-standard variance for a deck. Conditions are that the reduced lakefront setback is for steps only." Appellant's App. p. 257 (emphasis in original). The BZA assigned this appeal Petition No. V-10-47. A hearing on Petition V-10-47 was also scheduled for April 11, 2011.
At the April 11, 2011 hearing, the BZA heard arguments from the Mieses' legal counsel on AP-11-01 and V-10-47. With respect to AP-11-01, which was described on the voting form as "[o]verturn a notice of violation that a deck does not comply with the zoning ordinance & a zoning determination that a non-conforming deck, once removed, cannot be re-established," the BZA affirmed the decisions of the Plan Director. Appellant's App. p. 20-25. Regarding Petition V-10-47, the BZA voted to reject the petition to amend the conditions on the variance.
On May 10, 2011, the Mieses filed a verified petition for writ of certiorari to the trial court with respect to the three appeals that were before the BZA at the April 11, 2011 hearing. On that same day, the trial court issued an order to show cause, and on June 13, 2011, the trial court issued the writ of certiorari.
On October 2, 2011, the Mieses filed a motion for summary judgment, and on November 3, 2011, the BZA filed its response. On November 9, 2011, the trial court entered its order, and after setting forth findings of fact and conclusions of law, entered the following decree:
Appellant's App. p. 13. The Mieses now appeal.
The Mieses argue that the trial court erred when it reversed the BZA's April 9, 2010 decision, rather than reversing the BZA's April 11, 2011 decision, upholding the NOV, which sought to enforce the condition that had been placed on the variance. More particularly, the Mieses contend that the trial court exceeded its jurisdiction by reversing the BZA's decision, granting their variance. In other words, the Mieses argue that the condition on the variance should be voided without voiding the entire variance.
When a court reviews a decision made by a BZA, it must determine whether the decision is:
Equicor Dev., Inc. v. Westfield-Washington Twp. Plan Comm'n, 758 N.E.2d 34, 36 (Ind.2001) (quoting Ind.Code § 4-21.5-5-14).
When reviewing a decision of a BZA, this Court is bound by the same standard of review as the trial court. S & S Enterprises, Inc. v. Marion Cnty. Bd. of Zoning Appeals, 788 N.E.2d 485, 489 (Ind. Ct.App.2003). In reviewing an administrative decision, the trial court may not try facts de novo or substitute its own judgment for that of the agency. Id. at 490. Likewise, the reviewing court will neither reweigh the evidence nor reassess the credibility of witnesses. Id.
This Court has previously recognized that the "powers of the BZA are strictly limited to those granted by its authorizing statute." Schlehuser v. City of Seymour, 674 N.E.2d 1009, 1014 (Ind.Ct. App.1996). When the BZA takes action that exceeds those powers, those actions are ultra vires and void. Id. A void action is subject to collateral attack at any time. Elkhart Cnty. Bd. of Zoning Appeals v. Earthmovers, Inc., 631 N.E.2d 927, 929 (Ind.Ct.App.1994). And while Indiana Code sections 36-7-4-918.2 and -918.4 expressly authorize the BZA to impose reasonable conditions when it approves certain use variances, on August 9, 2010, when the BZA approved the Mieses' development standards variance for a two-foot lakefront setback, Indiana Code section 36-7-4-918.5 (2002), amended by P.L. 126-2011,
As an initial matter, the BZA contends that the trial court considered the form
The BZA maintains that the trial court erred by "by improperly imposing an overly rigid and technical requirement on the specific form of the language which the BZA was permitted to use to grant a valid variance." Appellee's Br. p. 25.
Here, the BZA's voting form from the August 9, 2010 hearing described the variance request as "a post-construction lakefront setback of two (2) feet rather than the twenty (20) feet required." Appellant's App. p. 44. The voting form states that the variance has been "Approved with Conditions," namely, a "2' setback for the stairs as constructed, rest of structure must be brought into compliance." Id. At the August 9, 2010 hearing, the BZA described the Mieses' request as a "standard variance for a deck." Appellant's App. p. 181. Indeed, a substantial portion of the entire hearing was devoted to a discussion of the variance as it applied to the deck.
Even after the December 2010 NOV was issued, the BZA continued to describe the Mieses' initial variance request as one for "a post-construction lakefront setback of two (2) feet rather than twenty (20) feet required for a deck." Appellant's App. p. 253. Furthermore, in the notice of the April 11, 2011 hearing on the Mieses' appeal of the NOV, the outcome of the August 9, 2010 hearing was described as: "The Board of Zoning Appeals granted the variance with the condition that the reduced lakefront setback is for the attached steps only and that the remainder of the deck must meet the minimum lakefront setback of 20 feet from the water." Id. Under these facts and circumstances, we cannot say that the trial court erred when it determined that the BZA imposed an unauthorized condition on Mieses' variance, which it was not specifically authorized to do by statute on August 9, 2010.
In the alternative, the BZA contends that the Mieses were barred from challenging the condition because they "consented to the conditions imposed on the variance at the August 9, 2010 hearing." Appellee's Br. p. 26. Specifically, the BZA points out that at the August 9, 2010 hearing, Kyle neither expressly agreed to the conditions nor objected to them. Appellant's App. p. 187-90.
In support of its argument, the BZA directs us to Robert Lynn Co., Inc. v. Town of Clarksville Board. of Zoning Appeals, 867 N.E.2d 660 (Ind.Ct.App.2007). In Robert Lynn Co., the trial court concluded that the BZA did not approve Lynn's application for a variance because the BZA conditioned its approval on future events of the Plan Commission, which failed to comply with the applicable statute and was characterized as no approval at all. Id. at 671. However, a panel of this Court determined that because both Lynn and the BZA "specifically agreed to the condition at issue — in other words, the BZA did not unilaterally impose the condition — and no one appealed the condition within thirty days" that under "these unique circumstances," the approval and condition were valid. Id.
The Mieses distinguish Robert Lynn Co., by highlighting the fact that "there was no evidence of any written agreement by the Mies[es] to the condition imposed by the BZA...." Reply Br. p. 9. As discussed below, although we do find Robert Lynn Co. distinguishable from the instant
Instead, we find Robert Lynn Co. distinguishable from the instant case because neither Kyle nor the Mieses expressly agreed to the condition imposed by the BZA. Consequently, the "unique circumstances" that existed in Robert Lynn Co. do not exist in this case, and we cannot agree that the Mieses agreed to the condition imposed by the BZA.
The Mieses argue that the void condition attached to the August 9, 2010 variance did not render the variance a complete nullity. The BZA counters that the trial court, "having determined that the BZA had in substance only approved a variance for the stairs, properly abstained from rewriting the variance by voiding only the `conditions' of the variance." Appellee's Br. p. 30.
At the outset, we note that the Mieses contend that the trial court exceeded its jurisdiction by reversing the August 9, 2010 decision, inasmuch as they did not challenge the BZA's August 9, 2010 findings, and any error related to those findings are, therefore, waived. Thus, the Mieses simultaneously argue that the condition was subject to review because they appealed the December 2010 NOV in a timely manner but that the approval of the variance was not subject to review because they failed to appeal the August 9, 2010 variance within thirty days.
Regarding the variance, the Mieses concede that they did not apply for two variances because the "stairs and the rebuilt deck were not separate structures: the stairs and [the] deck were attached to each other, with the stairs extending further toward the lake than the deck." Appellant's Br. p. 18. On March 1, 2011, the Mieses appealed to amend the conditions of the variance. Appellant's App. p. 257. The BZA voted to reject their petition on April 11, 2011, and the Mieses filed a verified petition for writ of certiorari with the trial court seeking a review of this decision. Under these unique facts in which the subject of the variance and the subject of the condition are intertwined; indeed, they are one structure, we cannot agree that the variance was not subject to review by the Mieses' appeal to amend the conditions of that variance.
Moving forward, the Mieses rely on Elkhart County Board of Zoning Appeals v. Earthmovers, Inc., 631 N.E.2d 927 (Ind. Ct.App.1994), in support of their position that conditions on variances should be considered independently from the underlying variance. In Earthmovers, the BZA had granted a special use permit for the operation of a landfill to be operated by Earthmovers. Id. at 929. The BZA attached a condition to the permit that the landfill had to be a private landfill operated only by Earthmovers and its affiliates (Condition 12). Id.
Several years later, after Earthmovers had purchased the property, Earthmovers applied to the BZA for a modification of its special use permit to remove Condition 12. Id. Earthmovers argued that Condition 12 was void because it regulated the persons using the land rather than the land use. Id. After a public hearing, the BZA denied Earthmovers's request, concluding that Condition 12 was not void and that the only reason for a change that had been proven by the evidence was economic in nature. Id. Earthmovers appealed, and
The BZA appealed, and a panel of this Court determined that Condition 12 was not void, inasmuch as "Earthmovers [] failed to show that Condition 12 was not intended to regulate traffic around the landfill," and the record provided support that Condition 12 was imposed to regulate traffic. Id. at 931. "Only in the absence of such evidence may the BZA's decision be reversed." Id.
Nevertheless, the Earthmovers Court found that Condition 12 was voidable, insofar as it was defective for its specificity in naming Earthmovers. Id. at 932. The panel noted that "such specificity makes it impossible that subsequent owners of the land may enjoy the special use permit without going before the BZA to have inserted into Condition 12 the name of the entity who will be taking over operation of the landfill." Id. The panel concluded that because Condition 12 was voidable, Earthmovers waived error in its imposition by failing to appeal the condition in a timely manner. Id.
Earthmovers is distinguishable from this case. As discussed above, it makes little sense to consider the void condition separately from the underlying variance or to require that the condition be severed from the underlying variance when the subjects of both are one structure. Moreover and perhaps most compelling, to sever the void condition from the underlying variance would require this Court to substitute its judgment for the judgment of the BZA in determining the scope of the development standards variance. As stated above, at the August 9, 2010 hearing, the BZA imposed the underlying variance and the void condition on one voting form; indeed, by checking one box labeled "Approved with Conditions." Appellant's App. p. 244. Consequently, under these circumstances, where the condition reflects the variance as the BZA approved it, rather than some collateral matter, the condition should not be separated from the variance, and the trial court did not err in reversing and remanding the BZA's August 9, 2010 decision.
In a related argument, the Mieses maintain that the BZA is without authority to revoke a variance that has been granted because there is no statute or ordinance granting it such authority. Therefore, the only option is to sever the void condition from the underlying variance.
In support of this argument, the Mieses direct us to Schlehuser v. City of Seymour, 674 N.E.2d 1009 (Ind.Ct.App.1996). In Schlehuser, a panel of this Court considered the BZA's authority to reconsider and revoke an existing use variance. Id. at 1011. The trial court had concluded that the BZA had such authority even in the absence of an express grant through statute or ordinance. Id. at 1013. The panel of this Court disagreed, noting that "[w]hile the City of Seymour has broad power as a `unit,' including the residual power to revoke an existing variance under proper circumstances, the municipality must delegate that power to the BZA in an ordinance." Id. The panel determined that the BZA had the authority to revoke variances if they were subject to reasonable and clearly stated conditions and if those conditions were not met. Id. at 1014. Because there was no transcript of the BZA's proceedings, the panel remanded the case to review the actions of the BZA to determine whether the variances were issued subject to conditions and whether Schlehuser failed to comply with those conditions. Id.
The Mieses argue that even if the trial court did not err in remanding the variance back to the BZA for reconsideration, they do not need to comply with the SCZO's twenty-foot setback because they did not lose their vested rights under the SCZO's nonconforming use provisions. More particularly, the Mieses contend that the cottage and the deck are a single structure and that the value of that structure was $27,500, while the total cost of repairs was $8,950, which is well below the fifty percent threshold that repairs must exceed before the structure loses its nonconforming status under the SCZO.
The interpretation of a zoning ordinance is a question of law that is reviewed de novo. Story Bed & Breakfast LLP v. Brown Cnty. Area Plan Comm'n, 819 N.E.2d 55, 65 (Ind.2004). Zoning regulations that inhibit the use of real property are in derogation of the common law and are strictly construed. Flying J., Inc. v. City of New Haven Bd. of Zoning Appeals, 855 N.E.2d 1035, 1039 (Ind.Ct.App. 2006). The courts construe a zoning ordinance to favor the free use of land and will not extend restrictions by implication. Id.
Chapter 22, Section 22.02 of the SCZO provides:
Appellant's App. p. 7-8.
Section 22.02(f) provides:
Appellant's App. p. 8. And Chapter 24 defines a "Structure" as:
Appellant's App. p. 8 (emphasis added).
Here, it is undisputed that the Mieses' old deck was a nonconforming structure. Additionally, a deck is defined as a "Structure" in Chapter 24 of the SCZO, even if it is attached to a building such as the Mieses' lake cottage. And Section 22.02(f) allows for repairs of nonconforming structures and buildings as long as the cost of the repairs does not exceed "50% of the value of the building or structure." Because
The total cost of replacing the Mieses' deck was $8,950. While the Mieses point out that the County Assessor had not assigned a separate value to the old deck for property tax purposes, we cannot say it was error to conclude that the cost of replacing the old deck exceeded fifty percent of its value. Accordingly, the new deck and stairs lost their nonconforming status under Section 22.02 of the SCZO, and this argument fails. Therefore, we affirm the trial court's order reversing the BZA's August 9, 2010 decision and remanding the case back to the BZA to conduct a new hearing on the post-construction development standards variance requested by the Mieses.
The judgment of the trial court is affirmed.
KIRSCH, J., and BROWN, J., concur.