Appellant Pro Se
George C. Bagnall
Beverly Shores, Indiana
Attorney for Amicus Curiae
Jo Angela Woods
Indiana Municipal Lawyers
Attorney for Appellee
Jeffrey F. Gunning
Pinkerton & Friedman, P.C.
INDIANA SUPREME COURT
GEORGE C. BAGNALL and
ANN H. BAGNALL,
Appellants (Plaintiffs below ),
TOWN OF BEVERLY SHORES, INDIANA; THE BOARD OF ZONING APPEALS OF THE TOWN
OF BEVERLY SHORES, INDIANA; AND MARY FULGUM, PHILLIP DICKE
RMAN, 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),
MICHAEL PAVEL and DEBORAH PAVEL,
Appellees (Intervenors below).
) Supreme Court No.
) Court of Appeals No.
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
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 courts
dismissal of the third petition because the Bagnalls lack standing as aggrieved parties,
but reverse the trial courts assessment of attorneys fees against the Bagnalls.
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
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
avor 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
(Avariance number one@); on June
6, 1996, the Board unanimously granted his petition for a setback requirement variance
on Lot 11
(Avariance number two@); and on August 1, 1996, the Board
unanimously granted Pavel=s petition regarding a well location on Lot 6
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
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 m
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
See Bagnall v. Town of Beverly Shores, 705 N.E.2d 213, 219
(Ind. Ct. App. 1999).
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
nstruction, 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).
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 co
ncluded 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.
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 appealss 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 Assn v. Whitley County Redevelopment
Commn, 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 appealss decision must infringe upon
a legal right of the petitioner that will be enlarged or diminished by
the result of the appeal and the petitioners 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. Appe
llees Br. to the Court of Appeals at 12 (quoting
Williams-Woodland Park Neighborhood Assn 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 petitioners 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 petitioners 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 courts findings unless they are clearly erroneous.
Ind. Trial Rule 52(A);
see also Indiana State Highway Commn v. Curtis,
704 N.E.2d 1015, 1017 (Ind. 1998). The Bagnalls have not demonstrated that
the trail courts 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 courts 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).
Therefore, we reverse the trial courts imposition of attorneys fees and hold that
the Board is not entitled to compensation for their legal expenses.
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 courts 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.
As the Court of Appeals noted, the record is confusing as to
the ownership of Lot 11.
Cause No. 64D05-9606-CP-1465.
Cause No. 64D05-9607-CP-1733.
Cause No. 64D05-9608-CP-2219.
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 courts 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.
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.
See footnote 2 supra.
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