ATTORNEY FOR APPELLANT: ATTORNEY FOR APPELLEE:
MARK S. O'HARA GREGORY W. BLACK
Hostetter & O'Hara Deckard & O'Brien
Brownsburg, Indiana Danville, Indiana
BROWNSBURG CONSERVATION CLUB, ) INC., ) ) Appellant-Petitioner, ) ) vs. ) No. 32A05-9708-CV-314 ) HENDRICKS COUNTY BOARD OF ZONING ) APPEALS, HENDRICKS COUNTY PLANNING ) AND BUILDING DEPARTMENT, ) ) Appellee-Respondent. )
point the Club was given until May 1, 1995 to comply with the conditions for approval. In
a letter to the Club's counsel dated February 22, 1995, counsel for the BZA advised:
As you well know, the conservation club was granted an extension up to and including May 1, 1995, for the completion of the conditions placed upon their variance. I confirmed with the Board members last night that this does mean that the improvements must be made and completed and be ready for inspection prior to May 1, 1995. If they are not completed and ready for inspection by that date, the conditions of the variance will not have been met and the variance will be void.
R. at 162. On May 1, 1995, the BZA held a meeting on the Club's premises. According to
the BZA the meeting was open to the public, but it was not a public hearing. Rather, the
purpose of the meeting was to conduct an inspection of the premises in order "to see if the
conditions of the variance had been met." R. at 112. After the meeting concluded the BZA
voted 4 to 1 to rescind the variance because in its view "the Brownsburg Conservation Club
did not meet the conditions of the variance (safety requirements) based on this on-site
inspection." R. at 114. Thereafter the Club filed with the trial court a timely petition for writ
of certiorari. After a hearing, the trial court affirmed the BZA's decision. This appeal
When reviewing a decision of the Board of Zoning Appeals, the trial court must determine if the board's decision was incorrect as a matter of law. Board of Zoning Appeals
v. Elkins, 659 N.E.2d 681, 683 (Ind. Ct. App. 1996), trans. denied. Also, the trial court may
not conduct a trial de novo or substitute its decision for that of the board. Id. "The Court of
Appeals' review of a trial court's ruling on review of such a decision is governed by the same
considerations. Unless the Board's decision was illegal, it must be upheld." Board of Zoning
Appeals of Evansville and Vanderburgh County v. Kempf, 656 N.E.2d 1201, 1203 (Ind. Ct.
App. 1995), trans. denied.
The Club contends the trial court erred in affirming the decision of the BZA because (i) it was never given notice or an opportunity to be heard, and (ii) the BZA did not support its decision with written findings. We agree.
A variance affords relief from the enforcement of a zoning ordinance and permits use of property which the ordinance otherwise forbids. Hazel v. Metropolitan Development Commission of Marion County, 154 Ind. App. 94, 289 N.E.2d 308 (1972). Although the initial grant or denial of a variance rests within the discretion of the board of zoning appeals, Ind. Code § 36-7-4-918.4; Ash v. Rush County Bd. of Zoning Appeals, 464 N.E.2d 347, 350 (Ind. Ct. App. 1984), trans. denied, a zoning board has no inherent authority to revoke a variance once issued. Rather, because a zoning board is expressly authorized to impose reasonable conditions when it first approves a variance,See footnote 2 2 the board has the implied authority to revoke a variance if the conditions have not been satisfied. Schlehuser v. City of Seymour, 674 N.E.2d 1009, 1014 (Ind. Ct. App. 1996) ( "It is implicit that when a variance
is issued subject to conditions of approval, the variance can be revoked if the conditions are
In this case the BZA imposed eighteen specific conditions on the variance granted to the Club. Those conditions have not been challenged as unreasonable. The problem, however, rests in the manner by which the BZA apparently reached the conclusion that the Club did not satisfy the conditions. First, characterizing the inspection visit as a "public meeting" as opposed to a "public hearing" the BZA did not provide the Club with an opportunity to be heard on the question of whether conditions of the variance had been met. Indeed, in its brief the BZA acknowledges that the purpose of the meeting was for the board "to inspect, to see, not to listen to Club members explain or neighbors complain." Brief of Appellees at 6. We have no quarrel with the meeting's stated purpose. However, because revocation is a severe remedy, this court requires that interested parties are afforded an opportunity to be heard. Schlehuser, 674 N.E.2d at 1014.
Second, the BZA did not support its decision with findings of fact. Citing Ind. Code § 36-7-4-915 the BZA acknowledges that no findings were made in this instance but contends they were unnecessary because no case was heard at the May 1 meeting. That statute provides in relevant part that "[t]he board shall in all cases heard by it make written findings of fact." Id. (Emphasis added). Regardless of how the meeting is characterized it is clear the BZA concluded that the Club was not in compliance with the conditions. In reaching its conclusion the BZA heard testimony from a witness who was invited to the meeting by the BZA for the express purpose of providing expert information concerning the
improvements made by the Club. In addition, immediately following the meeting the BZA
made a final determination to rescind the Club's variance. Thus we reject the BZA's narrow
reading of I.C. § 36-7-4-915.
reasons that exist independently of
statute, boards of zoning appeals are required to set out findings of fact which support their
determination to make possible adequate judicial review of administrative decisions."
McBride v. Board of Zoning Appeals, 579 N.E.2d 1312, 1316 (Ind. Ct. App. 1991).
case the BZA made no findings. Instead, the trial court entered extensive findings based on
minutes of the BZA meeting. This was error. Where the BZA fails to state findings of fact
when entering its decision, the trial court may not enter those findings on behalf of the board.
Holmes v. Board of Zoning Appeals of Jasper County, 634 N.E.2d 522, 525 (Ind. Ct. App.
Rather, the court must remand to the board to enter findings of fact in support of its
We conclude the BZA erred in failing to give the Club notice and an opportunity to be heard on the question of whether the conditions for approval have been met. We also conclude the BZA erred in failing to enter findings of fact to support its decision. Therefore we reverse the judgment of the trial court, and remand to the court with instructions that it remand this action to the BZA for further proceedings consistent with this opinion.
Judgment reversed and cause remanded.
SHARPNACK, C.J., and GARRARD, J., concur.
There will be baffling at the 100 yard range and that will be the maximum range; 14) All conditions of the approval shall be completed by June 20, 1994; 15) There shall be no shooting on the pistol and rifle range until all conditions of the approval have been completed; and 16) The maximum size weapon permitted to be fired on the premises shall not exceed .30 caliber. AND ALSO SUBJECT TO THE FOLLOWING SELF- IMPOSED STIPULATIONS: 1) A Range Officer must be on the premises when two (2) or more shooters are on the range; and 2) There must be a Range Master on the premises during official competitions and/or matches. R. at 111.
Converted by Andrew Scriven