ATTORNEY FOR APPELLANT
: ATTORNEY FOR APPELLEE:
MICHAEL G. NAVILLE SEAN M. MEAD
Lorch & Naville, LLC Mead, Mead & Clark, P.C.
New Albany, Indiana Salem, Indiana
COURT OF APPEALS OF INDIANA
CITY OF SALEM, BOARD OF ZONING )
APPEALS and GARY JOHNSON, et al, )
vs. ) No. 88A05-0103-CV-105
TERRY ALEXANDER and )
CYNTHIA L. ALEXANDER, )
APPEAL FROM THE WASHINGTON CIRCUIT COURT
The Honorable James D. Kleopfer, Special Judge
Cause No. 88C01-9708-CP-123
October 18, 2001
OPINION FOR PUBLICATION
STATEMENT OF THE CASE
Gary Johnson and Rhonda Johnson appeal the trial court's order that removed them
from the action filed by Terry and Cynthia Alexander for judicial review of
the denial by the City of Salem, Board of Zoning Appeals, of the
Alexanders' application for a special exception and approval of their plan to build
a mobile home park.
Whether the trial court erred in striking the Johnsons from the proceedings for
judicial review initiated by the Alexanders.
The Alexanders filed an application with the Salem Board of Zoning Appeals for
a special exception to build a mobile home park. The Johnsons, as
remonstrators, attended the hearings on the Alexanders' application, and Gary Johnson spoke in
opposition. After a hearing on April 1, 1999, the Board denied the
Alexanders' request for a special exception. On April 29, 1999, the Alexanders
filed against the Board a petition seeking judicial review of that denial with
the trial court. The Alexanders asserted that because their plan "met each
and every one of the requirements of the special exception for mobile home
parks as enumerated" in the applicable ordinance, the denial of their application was
illegal. (App. 75). The Johnsons were served notice of the Alexanders'
action for judicial review pursuant to Indiana Code § 36-7-4-1005.
On May 17, 1999, counsel entered an appearance for the Johnsons. On
June 8, 1999, the Alexanders filed a motion to strike the Johnsons because
they had "not been properly joined as parties in the instant case."
(App. 94). The Johnsons filed no response to the motion. The
trial court heard argument at a hearing on October 28, 1999.
See footnote The
trial court granted the Alexanders' motion, ordering the Johnsons "removed from this action"
on January 5, 2000. (App. 7).
Subsequently, the trial court conducted a review hearing on the Alexanders' petition.
It found that the local ordinance "enumerates the required elements to be entitled
to a grant of a special exception for a mobile home park," and
the Alexanders "met all the requirements for the grant of a special exception."
(App. 10). Accordingly, it held that the Board's decision "in denying
petitioners a special exception for a mobile home park is illegal and it
is hereby reversed." (App. 11).See footnote
The Johnsons then filed a motion to correct error, asserting that the trial
court had erred in denying them their "right to participate in the proceedings"
and that the Board had properly denied the Alexanders' application. (App. 132).
After a hearing, the trial court denied the motion, and the Johnsons
appeal that ruling.
The Johnsons contend that the trial court erred when it struck them from
the proceedings for judicial review of the Board's decision "because the Johnsons were
adverse parties as described in I.C. 36-7-4-1005 and as such were necessary and
indispensable to the proceedings."
See footnote Johnsons' Brief at 10. Because they were
"necessary and indispensable parties," the argument continues, the trial court's order upon proceedings
conducted without their participation is void.See footnote We cannot agree.
As cited by the Johnsons,
Minton v. State ex rel. Cohen, 169 Ind.
App. 584, 349 N.E.2d 741 (1976), and Allen County Board of Zoning v.
Guiff, 552 N.E.2d 519 (Ind. Ct. App. 1990), do hold that in order
for a trial court to have jurisdiction over a petition seeking judicial review
of zoning board decisions, the petitioner must have served notice to adverse parties.
Indeed, the statute requires that "an adverse party" a 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" be
served with notice that the petitioner has filed a writ for judicial review
in the trial court. See I.C. § 36-7-4-1005. However, it
is undisputed that the Alexanders did serve notice to the Johnsons.
Further, the statute does not state that such an adverse party automatically becomes
a party to the petition action for judicial review; nor does it obviate
the requirement of filing a motion to intervene with the trial court.
"Our trial rules provide only one method by which one not named a
party to an action may become an active litigant." Hepp v. Hammer,
445 N.E.2d 579, 581 (Ind. Ct. App. 1983). Trial Rule 24 sets
forth the procedure by which one may intervene in a pending action.
Id. The Johnsons filed no such motion. Had they done so,
the law provides certain tests as to whether the motion should be granted
to intervene "of right" or by "permissive intervention." See William F. Harvey,
Rules of Procedure, 2 Indiana Practice §§ 24.2, 24.3 (1987). Here, no
such consideration could be undertaken inasmuch as the Johnsons had filed no motion
Because the Johnsons did not file a motion to intervene, the trial court
did not err when it struck them from the proceedings initiated by the
MATHIAS, J., and VAIDIK, J., concur.
Because this issue is dispositive, we do not reach the
Johnsons' other contentions.
Footnote: The Johnsons do not provide a transcript of this hearing
in their Appendix.
Footnote: The Board does not appeal from this order.
Footnote: According to the Alexanders, the Johnsons did not argue this
contention to the trial court, and the record provided by the Johnsons does
not reveal any such argument.
Footnote: The Johnsons do not explain why, if this were indeed a
void order, they could then proceed to argue to this court that the
Board had properly denied the special exception and that we should reverse the
trial court's purportedly void order.