                                                                   FILED
                                                              Mar 30 2017, 5:52 am

                                                                   CLERK
                                                               Indiana Supreme Court
                                                                  Court of Appeals
                                                                    and Tax Court




      ATTORNEY FOR APPELLANT                                    ATTORNEY FOR APPELLEE
      Christopher L. King                                       Leslie D. Merkley
      Lorch Naville Ward, LLC                                   Corporation Counsel for the City
      New Albany, Indiana                                       of Jeffersonville, Indiana
                                                                Jeffersonville, Indiana


                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Riverside Meadows I, LLC,                                 March 30, 2017
      Appellant-Petitioner,                                     Court of Appeals Case No.
                                                                10A05-1608-PL-1828
              v.                                                Appeal from the Clark Circuit
                                                                Court
      City of Jeffersonville, Indiana                           The Honorable Vicki L.
      Board of Zoning Appeals,                                  Carmichael, Judge
      Appellee-Respondent.                                      Trial Court Cause No.
                                                                10C04-1412-PL-144



      Mathias, Judge.


[1]   Riverside Meadows I, LLC (“Riverside”) appeals the order of the Clark Circuit

      Court denying Riverside’s petition for judicial review of the decision of the City

      of Jeffersonville’s Board of Zoning Appeals (“the BZA”). Riverside presents

      two issues, which we consolidate and restate as whether the trial court erred by




      Court of Appeals of Indiana | Opinion 10A05-1608-PL-1828 | March 30, 2017             Page 1 of 12
      concluding that the findings of fact entered by the BZA were sufficient to permit

      judicial review.

[2]   We reverse and remand.


                                   Facts and Procedural History

[3]   Riverside owns a building located on East Chestnut Street in Jeffersonville,

      Indiana (“the Property”). Riverside is owned by Fouzia Shahnawaz

      (“Shahnawaz”), and the Property is managed by her husband, Shawn Zamir

      (“Zamir”). The Property was constructed in the 1920s as a convent and has

      fourteen bedrooms plus some common areas.


[4]   At the time relevant to this appeal, Riverside had rented out the rooms in this

      building to eleven adults, ranging in age from forty-eight to eighty-four. In

      addition, Riverside provided meals, laundry service, and light housekeeping for

      the residents. The Property, however, is zoned as M-1 (low density multifamily

      residential), and the City of Jeffersonville (“the City”) notified Riverside that its

      use of the Property was in violation of the City’s zoning ordinances.

[5]   Accordingly, Riverside filed an application for a use variance with the BZA,

      seeking to operate the Property as a “rooming house.”1 At a meeting held on

      October 28, 2014, the BZA considered Riverside’s request for a variance. The

      BZA heard evidence from proponents and opponents of the variance. At the



      1
        In 2013, Zamir sought on behalf of another entity, Springhurst Investments, LLC, to rezone the Property to
      allow for the operation of an assisted living facility. The City denied this rezoning request.

      Court of Appeals of Indiana | Opinion 10A05-1608-PL-1828 | March 30, 2017                       Page 2 of 12
      conclusion of the hearing, the BZA members took a vote and denied Riverside’s

      request for a variance.

[6]   According to the official minutes of the meeting, the BZA determined that:


              1. The variance of use will not be injurious to the public health,
              safety, moral and general welfare of the community;
              2. The use and value of the area adjacent to the property will not
              be adversely affected;
              3. The need for a use variance does result from conditions
              unusual or peculiar to the subject property itself;
              4. The strict application of the terms of the Jeffersonville Zoning
              Ordinance would result in an unnecessary hardship in the use of
              the property; and
              5. The approval of the variance does not contradict the goals and
              objectives of the Comprehensive Plan.


      Ex. Vol., Respondent’s Ex. A, p. 6 (emphases added). However, the transcript

      of the meeting indicates that the BZA members actually disagreed with the

      above-mentioned statements. Id., Petitioner’s Ex. 2, pp. 10-12.


[7]   The BZA also issued a document entitled “Findings of Fact of Jeffersonville

      Board of Zoning Appeals,” which is a preprinted document filled in with

      relevant information and which provides in relevant part as follows:


              The Board of Zoning Appeals of the City of Jeffersonville,
              Indiana, having heard the application for variance described
              above, and all opposition from parties claiming to be adversely
              affected thereby, does now enter the following findings:



      Court of Appeals of Indiana | Opinion 10A05-1608-PL-1828 | March 30, 2017    Page 3 of 12
        1. The variance of use will not be injurious to the public health,
        safety, moral, and general welfare of the community.
        [BZA] Members:            M.M2        M.P.B.         R.F.           M.C.   J.R.
        Voting Agree
        Voting Disagree             ✓            ✓            ✓              ✓       ✓

        2. The use and value of the area adjacent to the property will not
        be adversely affected.
        [BZA] Members:             M.M        M.P.B.         R.F.           M.C.   J.R.
        Voting Agree
        Voting Disagree             ✓            ✓            ✓              ✓       ✓

        3. The need for the use variance does result from conditions
        unusual or peculiar to the property itself.
        [BZA] Members:             M.M        M.P.B.         R.F.           M.C.   J.R.
        Voting Agree
        Voting Disagree             ✓            ✓            ✓              ✓       ✓

        4. The strict application of the terms of the Jeffersonville Zoning
        Ordinance would result in an unnecessary hardship in the use of
        the property.
        [BZA] Members:             M.M        M.P.B. 3       R.F.           M.C.   J.R.
        Voting Agree                           ✓
        Voting Disagree             ✓            ✓            ✓              ✓       ✓




2
 To conserve space, we have used initials to replace the names of Board members Mike McCutcheon, Mary
Pat Boone, Rita Fleming, Marty Chalfant, and Rosh Rodriguez.
3
 The form contains marks on both the “Agree” and “Disagree” lines for BZA member Boone’s votes on
questions 4 and 5.

Court of Appeals of Indiana | Opinion 10A05-1608-PL-1828 | March 30, 2017                 Page 4 of 12
        5. The approval of the variance would not contradict the goals
        and objectives of the Comprehensive Plan.
        [BZA] Members:             M.M        M.P.B.         R.F.           M.C.   J.R.
        Voting Agree                             ✓
        Voting Disagree             ✓            ✓            ✓              ✓     ✓

        These findings are supported by the evidence and/or testimony
        including the following as more specifically included in the
        minutes:
        _______________________________________________________
        _______________________________________________________
        _______________________________________________________
        _______________________________________________________

        Based on the findings described above, the Board does now
        approve/deny this application. So ordered this 28th day of
        October, 2014.

        If approved, this use variance applies to the subject parcel until
        such time as (a) the use variance ends, is vacated, or unused for
        three (3) months consecutively, (b) the property conforms with
        the applicable Zoning Ordinance as written, or (c) ownership of
        the property changes. The approval of this application is subject
        to the following reasonable conditions being met and maintained
        by the petitioner and all future entities responsible for the
        conditions of the property.
        1.   ____________________________________________________
        2.   ____________________________________________________
        3.   ____________________________________________________
        4.   ____________________________________________________
        5.   ____________________________________________________


        Jeffersonville Board of Zoning Appeals
        By______[signed]_______                     Attest______[signed]_______
              Chairperson                                      Secretary

Court of Appeals of Indiana | Opinion 10A05-1608-PL-1828 | March 30, 2017                 Page 5 of 12
      Id., Petitioner’s Ex. 1, pp. 2-3.


[8]   Any question regarding the decision of the BZA was clarified on October 29,

      2014, when the BZA notified Riverside by letter that its request for a use

      variance had been denied. Riverside then filed a petition for judicial review of

      the BZA’s decision on December 1, 2014. The trial court held an evidentiary

      hearing on the petition on January 21, 2016. On April 25, 2016, the trial court

      entered findings of fact and conclusions of law, denying Riverside’s petition and

      affirming the decision of the BZA. Riverside filed a motion to correct error on

      May 23, 2016, claiming that the trial court erred in concluding that the BZA’s

      findings were sufficient. The BZA filed a response on July 7, 2016, and the trial

      court denied the motion to correct error on July 15, 2016.4 Riverside now

      appeals.


                                           Discussion and Decision

[9]   Riverside claims that the findings of fact entered by the BZA are merely

      recitations of the relevant statutory language and therefore insufficient.




      4
        Contemporaneous with its motion to correct error, Riverside moved the court to set a hearing on its motion
      to correct error. The trial court did not set the motion for a hearing, but on May 31, 2016, set the matter for a
      pretrial conference to be held on June 24, 2016. At this pretrial conference, the trial court ordered the BZA to
      file a response within fifteen days of the hearing, with the additional provision that “Court’s time for ruling
      begins once response is filed.” Appellant’s App. p. 9. On appeal, the BZA makes no argument that
      Riverside’s motion was deemed denied under Indiana Trial Rule 53.3 or that Riverside’s appeal is untimely.
      Our supreme court has held that the timeliness of a notice of appeal does not implicate this court’s appellate
      jurisdiction. See In re Adoption of O.R., 16 N.E.3d 965, 971 (Ind. 2014) (“[A]lthough a party forfeits its right to
      appeal based on an untimely filing of the Notice of Appeal, this untimely filing is not a jurisdictional defect
      depriving the appellate courts of authority to entertain the appeal.”). Accordingly, we decline to address this
      issue sua sponte.

      Court of Appeals of Indiana | Opinion 10A05-1608-PL-1828 | March 30, 2017                             Page 6 of 12
       Riverside argues that the trial court erred in denying its petition for judicial

       review by concluding otherwise. When we review the BZA’s action, we apply

       the same standard as the trial court. Burcham v. Metro. Bd. of Zoning Appeals Div. I

       of Marion Cty., 883 N.E.2d 204, 213 (Ind. Ct. App. 2008). That is, we may not

       reverse the BZA’s decision unless an error of law is demonstrated. Id. Neither

       may we substitute our judgment for that of the BZA unless the appellant

       demonstrates illegality in the BZA’s action. Id. We may not try the facts de novo

       or substitute our judgment for that of the BZA, nor may we reweigh the

       evidence or reassess the credibility of the witnesses. Id. Instead, we must accept

       the facts as found by the BZA. Id. However, we conduct a de novo review of any

       questions of law decided by BZA. Id.


[10]   In the present case, Riverside sought a use variance from the zoning ordinance.

       The statute governing use variances provides:


               A board of zoning appeals shall approve or deny variances of use
               from the terms of the zoning ordinance. The board may impose
               reasonable conditions as a part of its approval. A variance may
               be approved under this section only upon a determination in
               writing that:
                      (1) the approval will not be injurious to the public health,
                      safety, morals, and general welfare of the community;
                      (2) the use and value of the area adjacent to the property
                      included in the variance will not be affected in a
                      substantially adverse manner;
                      (3) the need for the variance arises from some condition
                      peculiar to the property involved;



       Court of Appeals of Indiana | Opinion 10A05-1608-PL-1828 | March 30, 2017     Page 7 of 12
                      (4) the strict application of the terms of the zoning ordinance
                      will constitute an unnecessary hardship if applied to the
                      property for which the variance is sought; and
                      (5) the approval does not interfere substantially with the
                      comprehensive plan adopted under the 500 series of this
                      chapter.


       Ind. Code § 36-7-4-918.4 (emphasis added).


[11]   The relevant ordinance of the City mirrors these requirements and provides:


               C. BZA approval of Use Variances
               a. The Board may grant a variance from use if, after a public
               hearing, it makes findings of facts in writing, that:
                    1. the approval will not be injurious to the public health,
                    safety, morals, and general welfare of the community; and
                    2. the use and value of the adjacent areas to the subject
                    property are not adversely affected; and
                    3. the need for a variance stems from a condition unusual or
                    peculiar to the subject property itself; and
                    4. the strict application of the terms of this Ordinance will
                    results in an unnecessary hardship if they were applied to the
                    subject property; and
                    5. the approval of the variance does not contradict the goals
                    and objectives of the Comprehensive Plan.


       Jeffersonville, Ind., Ordinance 12.3(C), available at: https://cityofjeff.net/wp-

       content/uploads/2012/03/images_Jeffersonville_Zoning_Ordinance_-

       _Updated_Signs.pdf.




       Court of Appeals of Indiana | Opinion 10A05-1608-PL-1828 | March 30, 2017     Page 8 of 12
[12]   When making a decision on such matters, the BZA is required by statute to

       enter written findings of fact:

               The board of zoning appeals shall keep minutes of its
               proceedings and record the vote on all actions taken. All minutes
               and records shall be filed in the office of the board and are public
               records. The board shall in all cases heard by it make written findings of
               fact.


       I.C. § 36-7-4-915 (emphasis added). This statute’s use of the word “shall” is

       mandatory and places a duty on the BZA to enter findings of fact. See Habig v.

       Harker, 447 N.E.2d 1114, 1116 (Ind. Ct. App. 1983).


[13]   The BZA argues that the statute simply requires “written findings of fact,” not

       specific written findings of fact, and that its bare-bones “findings” satisfy this

       requirement. In support of its argument, the BZA cites Long v. Bd. of Zoning

       Appeals for City of Indianapolis, 134 Ind. App. 97, 99, 182 N.E.2d 790, 791

       (1962), which held that, absent any reference to required findings in the

       applicable statute, special findings of fact were not required.


[14]   However, our supreme court has since held that:


               For reasons which exist independently of the statute, the Board is
               required to set out findings of fact which support those
               determinations. The major reason for this is to make possible an
               adequate judicial review of the administrative decision. . . . These
               facts should be found specially and not generally. The findings must be
               specific enough to enable the court to review intelligently the
               Commission's decision.



       Court of Appeals of Indiana | Opinion 10A05-1608-PL-1828 | March 30, 2017        Page 9 of 12
       Carlton v. Bd. of Zoning Appeals of City of Indianapolis, 252 Ind. 56, 64, 245 N.E.2d

       337, 343 (1969) (emphasis added) (citations and internal quotations omitted).

       This requirement has since been repeated by this court. See Columbus Bd. of

       Zoning Appeals v. Wetherald, 605 N.E.2d 208, 211 (Ind. Ct. App. 1992); State ex

       rel. Newton v. Bd. of Sch. Trustees of Metro. Sch. Dist. of Wabash, 404 N.E.2d 47,

       48–49 (Ind. Ct. App. 1980); Bridge v. Bd. of Zoning Appeals of City of Ft. Wayne,

       180 Ind. App. 149, 152, 387 N.E.2d 99, 101 (1979).

[15]   Indeed, we have held that these written findings are necessary to ensure

       adequate judicial review of administrative decisions. Holmes v. Bd. of Zoning

       Appeals of Jasper Cty., 634 N.E.2d 522, 525 (Ind. Ct. App. 1994). Thus, the

       BZA’s findings must be tailored to address the specific facts presented to the

       Board, and the Board must enter both specific findings of fact and ultimate

       findings, or determinations. Wastewater One, LLC v. Floyd Cty. Bd. of Zoning

       Appeals, 947 N.E.2d 1040, 1051 (Ind. Ct. App. 2011) (citing Network Towers,

       LLC v. Bd. of Zoning Appeals of LaPorte Cnty., 770 N.E.2d 837, 844 (Ind. Ct. App.

       2002)). Accordingly, if the BZA’s findings are merely a general replication of

       the requirements of the ordinance at issue, they are insufficient to support the

       BZA’s decision. Id. (citing Metro. Bd. of Zoning Appeals, Div. II, Marion Cty. v.

       Gunn, 477 N.E.2d 289, 300 (Ind. Ct. App. 1985)).


[16]   Here, the BZA’s findings of fact are nothing more than a recitation of the

       statutory language and an indication of how the members of the BZA voted on

       whether these statutory requirements had been met. In the portion of the form

       used by the BZA to record its findings, the space left for specific findings was
       Court of Appeals of Indiana | Opinion 10A05-1608-PL-1828 | March 30, 2017   Page 10 of 12
       left blank. Thus, the BZA’s “findings” are nothing of the sort required to permit

       adequate judicial review of the BZA’s decisions. See Carlton, 252 Ind. at 62-63,

       245 N.E.2d 337, 342-43 (holding that board’s findings were insufficient where

       they merely repeated language of relevant statute and rejecting claim that voting

       forms of the members of the board, which also simply mirrored the language of

       the relevant statute without specific findings, were “findings” sufficient to

       permit judicial review); Wastewater One, 947 N.E.2d at 1051 (citing Gunn, 477

       N.E.2d at 300) (noting that findings containing mere repetition of the language

       of the ordinance are insufficient to permit judicial review).

[17]   The BZA argues that the minutes of the BZA’s hearing were “incorporated into

       the findings of fact and sufficiently support the BZA’s written findings.”

       Appellee’s Br. p. 7 (citing Ex. Vol., Respondent’s Ex. A, p. 167). First, we see

       no provision in the BZA’s “findings” that incorporates the minutes of the

       BZA’s hearing on this matter. Moreover, the “findings” as set forth in the

       minutes of the BZA again simply mirror the language of the relevant statute

       and ordinance. See Ex. Vol., Respondent’s Ex. A., p. 173. The rest of the

       minutes contain summaries of the testimonies and arguments of the parties for

       and against Riverside’s request. Again, this is insufficient to permit judicial

       review of the reasons for the BZA’s ultimate decision. We therefore conclude

       that the findings entered by the BZA in the present case are insufficient to

       permit adequate judicial review of BZA’s decisions.


[18]   However, our conclusion that the BZA’s findings were insufficient does not

       entitle Riverside to a new hearing. The proper remedy in the absence of

       Court of Appeals of Indiana | Opinion 10A05-1608-PL-1828 | March 30, 2017   Page 11 of 12
       adequate factual findings is remand to the board to enter findings of fact in

       support of its conclusion. Gary Bd. of Zoning Appeals v. Eldridge, 774 N.E.2d 579,

       583 (Ind. Ct. App. 2002). We therefore reverse the judgment of the trial court

       and remand this case to the BZA with instructions to enter specific findings,

       within forty-five days of the date this opinion is certified, tailored to address the

       specific facts presented to the BZA, in support of its decision to deny

       Riverside’s request for a use variance.


[19]   Reversed and remanded.


       Baker, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Opinion 10A05-1608-PL-1828 | March 30, 2017   Page 12 of 12
