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11/23/87 MAX FAVOURITE v. COUNTY STEUBEN BOARD

Filed: November 23, 1987.

MAX FAVOURITE, ET AL., APPELLANTS (PETITIONERS BELOW)
v.
COUNTY OF STEUBEN BOARD OF ZONING APPEALS; LAKE COUNTRY ENTERPRISES, INC.; BERKLEY ROBERTS IN HIS CAPACITY AS PRESIDENT OF LAKE COUNTRY ENTERPRISES, INC.; AND DON NEUENSCHWANDER, APPELLEES (RESPONDENTS BELOW)



Appeal from the Steuben Circuit Court, The Honorable Dane L. Tubergen, Judge, Cause No. C-86-407.

Hoffman, J., Ratliff, C.j., and Garrard, P.j., concur.

Author: Hoffman

HOFFMAN, J.

Max Favourite et al. (Favourite) appeal from the Steuben Circuit Court's order dismissing their petition for a writ of certiorari. This appeal arises from the following set of events: On September 2, 1986, Lake County Enterprises, Inc. and Don Neuenschwander applied to the Steuben County Board of Zoning Appeals for a special exception to the Steuben County Master Plan which would allow expansion of an amusement park located in an area zoned residential. After a hearing where public comment was heard and petitions presented both in favor of and against the granting of a special exception, the Steuben County Board of Zoning Appeals granted the special exception on October 6, 1986. On November 5, 1986, Favourite filed with the trial court a petition for a writ of certiorari pursuant to IND. CODE § 36-7-4-1003 (1982). The trial court on the same date issued, pursuant to IND. CODE § 36-7-4-1006 (1982), a Rule to Show Cause to the Board of Zoning Appeals to show cause why a writ of certiorari should not issue.

After the Board of Zoning Appeals filed an answer and a motion to dismiss, the trial court held an evidentiary hearing on the matter. The trial court then handed down its judgment dismissing the petition for a writ of certiorari due to lack of timely notice served on adverse parties as is required by IND. CODE § 36-7-4-1005(a) (1982).

Favourite bases his appeal from that judgment on two allegations of error, as restated:

(1) The trial court incorrectly applied the notice requirements of IND. CODE § 36-7-4-1005(a) to this case; and

(2) The trial court erred in refusing to allow Favourite's expert witness to testify.

In dismissing the petition for a writ of certiorari, the trial court found that Favourite failed to timely request to have notice served by the Sheriff of Steuben County or by other lawful service on Chuck Sheets, Bill Byrne and Carter Snider, all three of whom spoke in favor of the special exception at the Board of Zoning Appeals hearing. The court then dismissed the petition for a lack of jurisdiction under IND. CODE § 36-7-4-1005(a), which reads:

"Remedies and enforcement; writ of certiorari; filing of petition; notice to adverse parties; contents Sec. 1005. (a) 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 appeal in the office of the board of zoning appeals. An adverse party is any property owner who the record of the board of zoning appeals shows had appeared at the hearing before the board in opposition to the petitioner. If the record shows a written remonstrance or other document opposing the request of the petitioner and containing more than three (3) names, the petitioner shall have notice served on the three (3) property owners whose names appear first on the remonstrance or document. Notice to the other persons named is not required. The notice must state:

(1) that a petition for a writ of certiorari, asking for a review of the decision of the board of zoning appeals, has been filed in the court;

(2) the premises affected; and

(3) the date of the decision.

The service of the writ of certiorari by the sheriff on the chairman or secretary of the board of zoning appeals constitutes notice to the board, to the municipality or county, and to any municipal or county official or board charged with the enforcement of the zoning ordinance. No ...


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