METROPOLITAN DEV. COMM. OF MARION COUNTY v. Losche

295 N.E.2d 836 (1973)

THE METROPOLITAN DEVELOPMENT COMMISSION OF MARION COUNTY, and the Department of Metropolitan Development of the City of Indianapolis, by Its Division of Planning and Zoning, Appellants, v. Matilda LOSCHE et al., Appellees.

No. 2-173A3.

Court of Appeals of Indiana, Second District.

May 16, 1973.

Rehearing Denied June 12, 1973.

Gary R. Landau, David F. Rees, Indianapolis, for appellants.

T.H. St. Clair, Indianapolis, for appellees.

ON APPELLEE'S MOTION TO DISMISS

PER CURIAM.

This case is before the Court on the Motion of the defendants-appellees Matilda Losche and Stuart J. Duncan, M.D., to Dismiss or in the alternative to affirm. Said motion alleges that the appellants are not proper parties to an appeal and that they are not "aggrieved persons" entitled to institute any action for review of a decision of one of its zoning boards and to appeal the decision of that board.

The relevant statute defining who may appeal decisions of the board of zoning appeals is IC XX-X-X-XX, Burns Indiana Stat. § 53-974 (1964 Repl. 1972 Supp.) and reads as follows:

"53-974. Petition for writ of certiorari from decision. Every decision of a board of zoning appeals shall be subject to review by certiorari. The decision of a board of zoning appeals established pursuant to section 59 [§ 53-957] or section 61 [§ 53-959] of this chapter shall not be *837 subject to review by certiorari until after the expiration of the time granted for an appeal by the executive director as specified in section 71 [§ 53-969]. If the executive director takes an appeal, a writ of certiorari may be sought only against the decision of the metropolitan plan commission sitting as a board of zoning appeals. "Subject to the above limitations, any person aggrieved by a decision of the board of zoning appeals, not including the executive director, may present to the circuit or superior court of the county in which the premises affected are located a petition duly verified, setting forth that such decision is illegal in whole or in part, and specifying the grounds of the illegality. The petition shall be presented to the court within thirty [30] days after the decision of the board of zoning appeals or if the writ of certiorari is sought against the decision of the metropolitan plan commission sitting as a board of zoning appeals, the petition shall be presented to the court within thirty [30] days after the decision of the metropolitan plan commission. "No change of venue from the county in which the premises affected are located shall be had in any case arising under the provisions of this section. [Acts 1955, ch. 283, § 74, p. 786; 1947, ch. 184, § 3, p. 388; 1965, ch. 434, § 21, p. 1375; 1969, ch. 299, § 9, p. 1250; 1972, P.L. 139, § 5, p. 673.]" (Our emphasis)

The appellees Losche and Duncan timely asserted in the trial court that the appellants were not "aggrieved persons" under the statute and hence not proper parties to appeal, by filing their "Motion to Vacate and Set Aside Entry and Motion to Dismiss," and their "Motion to Dismiss for Failure to State a Claim upon which Relief can be Granted, or in the Alternative, Motion for Judgment on the Pleadings." The trial court overruled the appellees' Motions.

In the case of Metropolitan Development Commission et al., v. Cullison et al., (1972) Ind. App., 277 N.E.2d 905, this Court discussed at length the term "aggrieved persons" and concluded that neither of the plaintiffs was a "person aggrieved" and therefore neither was authorized by law to seek any judicial review of a decision of one of its own boards of zoning appeals. This Court denied rehearing in Cullison on March 13, 1972. No Petition to Transfer was filed, thus the decision of this Court became final and was certified to the trial court on April 5, 1972.

The plaintiffs-appellants in this case are the same as were the plaintiffs-appellants in the Cullison case, and therefore the disposition of this case is governed by the Cullison case. Upon the authority of Cullison and the cases cited therein, we now hold that the plaintiffs-appellants in this case have no standing to bring this appeal. Accordingly, the motion of appellees Losche and Duncan is sustained, and this case is dismissed.