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Friday, April 18, 2008

Ind. Decisions - Court of Appeals issues 1 today (and 11 NFP)

For publication opinions today (1):

In Robert & Melinda Sexton, Stephanie & Craig Flinn, David & Gail Helt, et.al. v. Jackson County Board of Zoning Appeals and members, et.al., an 11-page opinion, the dispositive issues were:

I. whether the trial court properly determined that the Appellants did not have standing to petition for the writ of certiorari; and II. whether the trial court abused its discretion in determining that no violation of the Indiana Open Door Law (“IODL”) occurred.
At issue is the Jackson County Board of Zoning Appeals (“BZA”) grant of a special exception to build and operate a concentrated animal feeding operation (“CAFO”). The Appellants lived near the site of the proposed CAFO, ranging from 1200 feet away to a half a mile away.

Judge Barnes writes:

[I. Standing] We conclude that the proximity of the Appellants’ properties to the alleged harm is not dispositive in determining whether they have standing. The Appellants presented evidence showing that they will suffer a pecuniary loss by the granting of Lykins’s permit. This is sufficient to show that they are “aggrieved” and therefore sufficient to establish that they have standing to petition for a writ of certiorari. The trial court’s findings and conclusions to the contrary are clearly erroneous.

Although the trial court concluded that the Appellants did not have standing, it appears to have analyzed whether there is sufficient evidence to support the BZA’s approval of Lykins’s application and concluded that there was sufficient evidence to support the BZA’s decision. This analysis, however, did not address all of the Appellants’ claims. Based on our conclusion today, we remand for consideration, or reconsideration as the case may be, of the claims in the Appellants’ petition for writ of certiorari in light of the fact that they have standing to pursue the claims. * * *

[II. Indiana Open Door Law] The Appellants also argue that the trial court improperly failed to consider supplemental evidence relating to its IODL claim. Specifically, during the October 11, 2005 BZA hearing, approximately twenty-two minutes are not included in the transcript after the first vote but before the second vote. The Appellants allege that during this time, the four BZA members “deliberated, in whispering tones out of earshot of the public and their recording equipment.” In their petition, the Appellants alleged that this action was in violation of IODL. * * *

We cannot resolve this question, however, because the Appellants were not permitted to supplement the record. During the trial court proceedings, the Appellants sought to supplement the record with a videotape of the October 11, 2005 hearing, an advisory opinion for the Indiana Public Access Counselor, and a letter from the Jackson County Council notifying a BZA member that his appointment to the BZA had been revoked. The trial court ultimately struck the supplemental evidence and concluded that no IODL violation occurred. * * *

Although the trial court was not required to consider supplemental evidence, it should have done so here. At issue is the conduct of the BZA members during the hearing—certainly the Appellants should have been able to supplement the record with evidence of what happened during the hearing. Further, Lykins and the BZA’s arguments against the supplementation of the record go to the weight of the evidence, not to whether the record should be supplemented. * * *

Conclusion. The Appellants are aggrieved by the BZA’s decision and have standing to petition for a writ of certiorari. The trial court improperly failed to supplement the record regarding the Appellants’ IODL claim. Accordingly, we reverse and remand for the trial court to consider the merits of the Appellants’ claims in light of our decision. We reverse and remand. Reversed and remanded.

NFP civil opinions today (3):

Regina Webb v. Review Board of Ind. Workforce Development and Veterans of Foreign Wars (NFP) - "We restate the issue presented by Webb as whether the Board erred in concluding that she left her employment without good cause in connection with her work. We affirm."

Lloyd E. Philpott v. Nola L. Philpott (NFP) - "In light of the foregoing evidence most favorable to the trial court’s judgment, we conclude that Husband has failed to establish that the trial court abused its discretion in dividing his pension and the equity in the marital residence equally between the parties. See Grimes v. Grimes, 722 N.E.2d 374 (Ind. Ct. App. 2000) (finding no abuse of discretion in equal division of husband’s retirement plan, where parties were separated eight years prior to wife petitioning for dissolution and wife did not work for first nineteen years of marriage), trans. denied. Consequently, we affirm the dissolution decree. Affirmed."

Barry Geyer v. Terry (Geyer) Serie (NFP) - "In rare cases, one parent has been ordered to reimburse the other parent for college expenses already paid. * * * Such circumstances as fraud or contempt of court are not present here.

"Here, the trial court concluded that Mother was not required to reimburse Father for tuition payment made to the university because (1) Father failed to move to stay the execution of the trial court’s judgment pursuant to Indiana Trial Rule 62(B)(5) or to post bond to stay upon appeal pursuant to subsection (D); and (2) Mother did not mislead Father or reap a direct financial benefit to herself. The evidence of record supports the trial court’s refusal to order reimbursement upon equitable grounds. Father has demonstrated no clear error. Affirmed."

NFP criminal opinions today (8):

Buford Earls v. State of Indiana (NFP)

Cero W. Russell v. State of Indiana (NFP)

Dennis Mikel v. State of Indiana (NFP)

Raymond Cowan v. State of Indiana (NFP)

Joseph Pryor v. State of Indiana (NFP)

Joe E. Markley v. State of Indiana (NFP)

Jason Aliff v. State of Indiana (NFP)

Kevin R. Perkins v. State of Indiana (NFP)

Posted by Marcia Oddi on April 18, 2008 01:35 PM
Posted to Ind. App.Ct. Decisions