Opinion
Rehearing Denied Jan. 3, 1972.
Buchanan, J., dissents with opinion, see 277 N.E.2d 921.
Opinion Superseded, 301 N.E.2d 359.
Page 221
Harold H. Kohlmeyer, Jr., Arthur H. Northrup, Indianapolis, for defendants-appellants.
Rynearson s&sRumple, Paul V. Rumple, Max Rynearson, Indianapolis, for plaintiff-appellee.
ROBERTSON, Judge.
On the 17th of June, 1969, the appellant Board of Zoning Appeals denied appellee Rumple the variance he sought. Pursuant to the then existing Ind.Ann.Stat. § 53-974 (Burns 1964), IC 1971, 18-7-2-76, Rumple filed his petition for a writ of certiorari on the 16th of July, 1969. Notice was served on the Board. Counsel entered his special appearance for the purpose of questioning jurisdiction of the court over subject matter, the particular case and the defendants, on the 18th of July 1969.
On the 25th of September, the Board then filed a motion to dismiss, predicated upon Ind.Ann.Stat. § 53-976 (Burns 1964), IC 1971, 18-7-2-78 which reads:
'Action of court on petition for certiorari.--Upon presentation of a petition for a writ of certiorari, the circuit or superior court of the county in which the premises affected are situated, or a judge thereof in vacation shall direct the board of zoning appeals within twenty (20) days from the date of such citation, to show cause why a writ of certiorari should not issue. If such board fails to show to the satisfaction of the court that a writ should not issue then the court may allow a writ of certiorari directed to the board of zoning appeals. The writ shall prescribe the time in which a return shall be made to it. This time shall not be less than ten (10) days from the date of issuance of the writ and may be extended by the court on application and on notice to all parties to the decision or the judge thereof.' (Our emphasis.)
Argument was heard and briefs submitted on the motion. The court overruled the motion on the 10th of November, 1969. A citation for the Board to appear was issued on the 19th of November, 1969.
On the 31st of March, 1971, the motion for the writ was granted, ordering the Board to produce the record on April 7, 1970.
The trial court reversed the Board, after the appropriate proceedings, on the 1st of December, 1970.
This court, Ind.App., 274 N.E.2d 727, previously remanded this cause for findings as required by TR. 52(A)(2). The trial court quickly complied with findings basically following the five statutory requirements set forth in Ind.Ann.Stat. § 53-969 (Burns 1964), IC 1971, 18-7-2-71 and finding an abuse of discretion by the Board; a lack of substantial evidence to support its decision; and the Board's decision was contrary to the law and the evidence.
The Board's motion to correct errors, which was overruled, sets forth three alleged errors.
The first specification of error is the court did not sustain the Board's motion to dismiss, premised on the fact that no order was issued within the specified 20-day period allowed by statute.
The case of Ballman v. Duffecy (1951), 230 Ind. 220, 102 N.E.2d 646, is quoted by the Board for authority requiring strict compliance with the prescribed schedule of events set forth in Ind.Ann.Stat. §§ 53-974, 53-976 (Burns 1964), IC 1971, 18-7-2-76, 18-7-2-78. A reading of the briefs and transcript of the Ballman case, supra, reveals a schedule of happenings not apparent in reading the opinion. Then the special appearance was filed to contest jurisdiction subsequent to expiration of the 20 days in which the writ should issue. There the trial court correctly dismissed the petition.
One must note the difference in Ballman and the instant case, where the special appearance was filed two days after the filing of the petition for the writ of certiorari. How the Board can claim error, when it, in effect, tolled the passage of time by filing its special appearance to contest jurisdiction and then failed to do so, escapes this writer. It is understandable why Rumple, as well as the court, proceeded no further until the issue was settled.
'No party can take advantage of an error committed by a court except the one against whom it was committed.' (Citing authorities.) Johnson, Adm. v. Johnson (1901), 156 Ind. 592, 595, 60 N.E. 451; See also: Dale v. Trent (1970), Ind.App., 256 N.E.2d 402.
The Board argues a second procedural error, namely, the failure of the court to give the ten days or more to produce the record as required by Ind.Ann.Stat. § 53-976 (Burns 1964), IC 1971, 18-7-2-78. A reading of the Board's motion to correct errors does not disclose this defect being pointed out to the trial court, therefore, it is not appropriate for this Court's consideration.
The second major specification of error assigned by the Board is that the trial court's decision is contrary to the evidence and the law because there is no credible evidence to show:
'1. The grant will not be injurious to the public health, safety, morals, and general welfare of the community.
'2. The use or value of the area adjacent to the property included in the variance will not be adversely affected.
'3. The need for the variance arises from some condition peculiar to the property involved and does not exist in similar property in the same zone.
'4. The strict application of the terms of the ordinance will constitute an unusual and unnecessary hardship if applied to the property for which a variance is sought.
'5. The grant of the variance does not interfere substantially with the metropolitan comprehensive plan adopted pursuant to sections 31 through 37 of this Act.'
The language is taken from Ind.Ann.Stat. § 53-969 (Burns 1964) IC 1971, 18-7-2-71 and presents the five requirements for granting a variance.
More specifically the error is directed to item 5 of the above quoted section.
Rumple presented testimony and exhibits in his behalf, as well as the testimony of surrounding landowners and neighbors, all of whom were in favor of his petition. The only remonstrator was the staff attorney who argued that the variance would interfere with the master plan, although the improvement of the property would benefit the neighborhood.
The responsibility of the reviewing court in reversing a negative decision of an administrative agency is:
'(the court) must find that each of the five statutory requisites has been established as a matter of law, * * * the evidence supporting each prerequisite must be such that no reasonable man could fail to accept that prerequisite as proved.'
Metropolitan Bd. of Zon. App. v. Standard Life Ins. Co. (1969), Ind.App., 251 N.E.2d 60, 61.
This being the case, we cannot, as a matter of law, say the trial court erred in reversing the Board.
The third assignment of error, the trial court substituted its judgment for that of the Board, is without merit in light of our previous holding that the court had a legal basis for overturning the denial of Rumple's variance.
The decision of the trial court is affirmed.
SULLIVAN, P. J., and BUCHANAN and LOWDERMILK, JJ., concur.