Recently, the Indiana Court of Appeals decided whether a couple was truly aggrieved, which is a required condition to petition for judicial review of a zoning decision, when they lost their view of Lake Michigan.
The Shinalls own a hilltop property with a view of Lake Michigan visible over the roof of the Tarpos’ current home. The Odgen Dunes Zoning Code allows residential buildings to be a maximum height of thirty feet, but the Tarpos wanted a variance allowing their new house to be thirty-nine feet tall, which would obstruct the view the Shinalls have enjoyed for nearly twenty years. Despite the Shinalls’ opposition, the variance was approved. The Shinalls filed a petition for judicial review asserting they would be aggrieved if they lost the use and enjoyment of their waterfront view due to the Tarpos’ new home. Losing the view would also adversely impact the property’s value. Similarly aggrieved neighbors joined the Shinalls’ opposition efforts, but the trial court determined that a person is not aggrieved because they lose their view. The trial court dismissed the Shinalls’ petition because they lacked standing, so the Shinalls appealed.
However, Indiana Code § 36-7-4-1603(a)(2) illustrates that the Shinalls, in fact, do have standing. To have the standing required to secure judicial review of a zoning decision, a person must be aggrieved by the decision, which means the decision “infringes on a legal right” of the individual, resulting in a pecuniary injury. The Shinalls are substantially aggrieved by the loss of their view and suffer a pecuniary injury because the property value would decrease if it no longer included a waterfront view. With their standing confirmed, the Shinalls claim victory on appeal to reverse the lower court’s dismissal ruling.
Judge Riley dissents maintaining that the Shinalls were not aggrieved by the zoning decision because a view of Lake Michigan is not a “legally protected right” under Indiana law.
James A. L. Buddenbaum has practiced law for more than 25 years with Parr Richey representing municipalities and businesses in utility, healthcare and general business sectors in both regulatory and transactional matters. Jim also has extensive experience in representing businesses in making large property damage and similar insurance claims.
The statements contained here are matters of opinion for general information purposes only and should not be considered by anyone as forming an attorney client relationship or advice for any particular legal matter of the reader. All readers should obtain legal advice for any specific legal matters.