ATTORNEY FOR APPELLANT: ATTORNEY FOR APPELLEES:
DAVID R. BUTSCH JULIE A. NEWHOUSE
Connersville, Indiana Newhouse & Newhouse
RUSH COUNTY BOARD OF ZONING APPEALS, ) ) Appellant-Respondent, ) ) vs. ) No. 70A04-9612-CV-535 ) RICHARD A. RYSE and KIMBERLY DIANE RYSE, ) ) Appellees-Petitioners. )
2. Whether the trial court erred in finding the Ryses' use of their
property was a permitted nonconforming use.
v. Elkins, 659 N.E.2d 681, 683 (Ind. Ct. App. 1996), reh'g denied, trans. denied.
Furthermore, the trial court may not conduct a trial de novo or substitute its decision for that
of the board. Id. "The Court of Appeals review of a trial court's ruling on review of such
a decision is governed by the same considerations. Unless the Board's decision was illegal,
it must be upheld." Board of Zoning Appeals of Evansville and Vanderburgh County v.
Kempf, 656 N.E.2d 1201, 1203 (Ind. Ct. App. 1995), reh'g denied, trans. denied.
The Board raises two issues in its appeal: whether the Board's decision to limit the number of horses allowed on the Ryses' property was reasonable and within its discretion, and whether the trial court erred in finding that the Ryses' desired use of the property was a permitted nonconforming use under the Rush County Zoning Ordinance. The Ryses argue that their use of the property is a permitted non conforming use, in that it was "grandfathered" under the zoning ordinance, and that therefore, they should never have been subject to the jurisdiction of the Board in the first place. The Ryses also allege that the Board's failure to make required findings of fact and conclusions of law make its determination illegal.See footnote 1 For the reason stated below, we can neither review the issues nor affirm the trial court's grant of the special use exception.
Ind. Code 36-7-4-918.2 states that: "A board of zoning appeals shall approve or deny
all: . . .(2) special uses; . . . from the terms of the zoning ordinance, but only in the classes
of cases or in the particular situations specified in the zoning ordinance." During the closing
arguments counsel for the Ryses gave the judge a copy of the rule within the Rush County
Zoning Ordinance upon which she was relying, and both sides discussed the application of
the provision to the case at hand. (R. 66-77). Additionally, both sides quote from the
ordinance multiple times within their briefs. However, the Rush County Zoning Ordinance
was not included in the record; it was not admitted at trial as an exhibit, nor did the court
take judicial notice of the ordinance.
In Habig v. Harker, this court found it was unable to properly review issues involving the proper interpretation of a zoning ordinance because the record was barren of the zoning ordinance at issue. Because the ordinance was not properly before the court, and thus not a part of the record, the court was unable to issue a writ for its production. 447 N.E.2d 1114, 1117 (Ind. Ct. App. 1983) (quoting Woods v. Brown County Plan Comm'n, 446 N.E.2d 973, 977 (Ind. Ct. App. 1983)); Gonon v. State, 579 N.E.2d 614, 614 (Ind. Ct. App. 1991). We find Habig controlling in this case. We are unable to review the interpretation of an ordinance which is not included in the record.
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