author: BROWN, Judge.

text:
    CITY OF CARMEL, Appellant, v. REVIEW BOARD OF THE INDIANA DEPARTMENT OF WORKFORCE DEVELOPMENT and Greg Park, Appellees.
    No. 93A02-1108-EX-841.
    Court of Appeals of Indiana.
    June 29, 2012.

      Liberty L. Roberts, Collier-Magar & Roberts, P.C., Indianapolis, IN, Attorney for Appellant.

      Gregory F. Zoeller, Attorney General of Indiana, Elizabeth Rogers, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee, Review Board.
   OPINION

BROWN, Judge.

The City of Carmel, Indiana (“Employer”) appeals a decision by the Review Board of the Indiana Department of Workforce Development (the “Board”) in connection with Greg Park’s application for unemployment benefits that Park was discharged, but not for just cause. Employer raises one issue, which we revise and restate as whether the record supports the Board’s decision. We reverse and remand.

The relevant facts follow. Park worked as a full time patrol officer for the Carmel Police Department from January 14, 2008, to February 19, 2011. On November 18, 2010, then Chief of Police Michael Fogarty submitted a letter to the Carmel Police Merit Board stating that Park had violated department policies, rules, and regulations. Following a public hearing at which Chief of Police Tim Green and Park testified, the Merit Board issued findings of fact and conclusions of law, concluded that there was substantial and convincing evidence to support the termination of Park’s employment, and that the appropriate discipline for Park was termination effective February 19, 2011. In its findings of fact, the Merit Board found that, on September 14, 2010, Park was dispatched to a school to respond to a fight involving two juveniles, that Park’s superior officer had arrived on the scene prior to Park and conducted an investigation, and that Park’s superior officer instructed Park to arrest one of the juveniles and not the other. The Merit Board further found that Park initially arrested one of the juveniles but later called the home of the other juvenile, spoke with the juvenile about the fight, then arrested the second juvenile, and that Park “disobeyed [his supervising officer’s] direct order when he arrested the second juvenile.” Exhibits at 88.

Park filed a claim for unemployment benefits, and on March 10, 2011, a deputy for the Indiana Department of Workforce Development issued a Determination of Eligibility which found that Park was discharged for just cause and not eligible for full unemployment benefits. Park appealed the deputy’s determination, and after a continuance a telephonic hearing was held on April 18, 2011, before an administrative law judge (the “ALJ”). The ALJ issued a decision which reversed the deputy’s determination and concluded that Park was discharged but not for just cause. Specifically, the ALJ’s decision provided in part:

Decision — Reversed

FINDINGS OF FACT: [Park] worked as a full time police officer for the Car-mel Police Department. [Park] worked from January 14, 2008 until February 19, 2011. [Park] was discharged for violating the Employer’s policies and procedures. A recommendation of discharge was submitted to the Carmel Police Merit Broad [sic] stating that [Park] had violated the Employer’s policies and procedures.
The Employer states that in September 2010, [Park] failed to obey the order of a supervisor. [Park] was called to the Mosaic School where two juveniles were involved in a fight. [Park] was told to arrest one of the juveniles but not the other. [Park] made a determination later that both juveniles should be arrested based on his own assessment. [Park] as an arresting officer made an independent judgment based on his knowledge of the evidence. No evidence was submitted to show [Park] should overlook evidence which would allow a wrong doer to go free. No information was provided to show that the officer must follow an order regardless of the information know[n] to him. No evidence was submitted to indicate [Park] made a wrongful arrest in the arrest of the second juvenile.
[Park] is accused of intimidating the Mosaic School principal. The Employer did not provide evidence that [Park] had knowledge of the Mosaic principal’s statement or complaint to the Employer. The Employer did not provide any evidence of a complaint or statement being made by the principal. No evidence was submitted to show [Park] knew that an investigation was taking place regarding the incident.
There are two incidents regarding citizen complaints that are a part of the recommendation to discharge [Park]. [Pai'k] made a traffic stop and failed to give the driver a ticket. [Park] later took the ticket to the driver’s home. The second incident involved [Park] using his position as a police officer to obtain information he otherwise would not have been able to obtain. The actual citizen complaints were not presented as evidence for trial. No first hand testimony was provided. The complaints were the basis of the Employer’s investigations. The Employer did not identify specific dates when the complaints were received or when the investigations began. Statements obtained from witnesses during the investigations were not provided. [Park] was not aware and did not participate in the investigations until two and three months after the incidents occurred.
The recommendation to the merit board to terminate [Park] was not the result of progressive discipline. [Park] was discharged for investigations of incidents that were deemed serious by the Employer because all the incidents being investigated were occurring at one time. The Employer chose to investigate the incidents at one time. The incidents were not investigated when they occurred and the Employer did not provide evidence that all the complaints came to its attention at one time.

[Park] received a six month evaluation in October of 2010. The evaluation was not submitted as evidence. Three serious investigations of [Park] were ong[o]ing; [Park’s] evaluation should have mentioned the receipt of three serious complaints.

CONCLUSIONS OF LAW: The burden of proof for showing just cause for a discharge is on the Employer. Moore v. Review Bd. of Indiana Employment See. Div., 461 N.E.2d 737, 739 (Ind.Ct.App.1984). In Moore the Court stated:

In a situation where an employee is alleged to have been terminated for just cause, the Employer bears the burden of proof initially. Once the Employer has established a prima fa-cie showing of just cause for termination, the burden shifts to the employee to go forward with evidence rebutting the Employer’s claim.

Id.

The Administrative Law Judge finds that the Employer failed to make out a prima facie case of just cause for discharging [Park]. To show that a discharge was for just cause in a rule violation case, the Employer must present evidence of the following: (1) there was a rule; (2) the rule was reasonable; (3) the rule was uniformly enforced; (4) [Park] knew of the rule; and (5) [Park] knowingly violated the rule.
There is no indication that [Park] would be discharged based on any single incident that was the basis of the Employer’s recommendation with the exception of retaliation. The Employer failed to show [Park] had knowledge of a complaint which is the basis for the retaliation claim.
The Employer failed to show that [Park] could not make an independent arrest based on information known to him that may have not have been known to his supervisor in the arrest of the second juvenile. It has not been established that there was an insubordinate act. Finally, the Employer did not provide the citizen complaints it received or investigations it conducted. The Employer provided no first-hand testimony of the violations which led to [Park’s] discharge.
The Administrative Law Judge holds that the Employer failed to demonstrate just cause for discharging [Park] pursuant to Indiana Code § 22 — 4—15—1(d)(2).
DECISION: The initial determination of the Deputy is REVERSED. [Park] if otherwise eligible is entitled to unemployment insurance benefits effective the week ending February 19, 2011.
DATED AT INDIANA, THIS 18TH DAY OF APRIL, 2011.

Exhibits at 97-98. Employer filed an appeal from the decision of the ALJ, and the Board affirmed the ALJ’s decision.

The issue is whether the record supports the decision of the Board that Park was discharged but not for just cause. The Indiana Unemployment Compensation Act provides that “[a]ny decision of the review board shall be conclusive and binding as to all questions of fact.” Ind.Code § 22-4-17-12(a). However, Ind.Code § 22-4-17-12(f) provides that when the Board’s decision is challenged as contrary to law, the reviewing court is limited to a two part inquiry into: (1) “the sufficiency of the facts found to sustain the decision;” and (2) “the sufficiency of the evidence to sustain the findings of facts.” McClain v. Review Bd. of Ind. Dep’t of Workforce Dev., 693 N.E.2d 1314, 1317 (Ind.1998), reh’g denied. The Indiana Supreme Court clarified our standard of review of the Board’s decisions in McClain:

Review of the Board’s findings of basic fact [is] subject to a “substantial evidence” standard of review. In this analysis the appellate court neither reweighs the evidence nor assesses the credibility of witnesses and considers only the evidence most favorable to the Board’s findings.
The Board’s conclusions as to ultimate facts involve an inference or deduction based on the findings of basic fact. These questions of ultimate fact are sometimes described as “questions of law.” They are, however, more appropriately characterized as mixed questions of law and fact. As such, they are typically reviewed to ensure that the Board’s inference is “reasonable” or “reasonable in light of [the Board’s] findings.” The term “reasonableness” is conveniently imprecise. Some questions of ultimate fact are within the special competence of the Board. If so, it is appropriate for a court to exercise greater deference to the “reasonableness” of the Board’s conclusion.... However, not all ultimate facts are within the Board’s area of expertise. As to these, the reviewing court is more likely to exercise its own judgment. In either case the court examines the logic of the inference drawn and imposes any rules of law that may drive the result. That inference still requires reversal if the underlying facts are not supported by substantial evidence or the logic of the inference is faulty, even where the agency acts within its expertise, or if the agency proceeds under an incorrect view of the law.

Id. at 1317-1318 (citations and footnotes omitted).

In Indiana, an employee is ineligible for unemployment benefits if he or she is discharged for just cause. Stanrail Corp. v. Review Bd. of Dep’t of Workforce Dev., 735 N.E.2d 1197, 1202 (Ind.Ct.App.2000), trans. denied; Ind.Code § 22-4-15-1. Ind.Code § 22-4-15-l(d) provides that “[discharge for just cause” is defined to include a “knowing violation of a reasonable and uniformly enforced rule of an employer....”

Employer argues that the Board improperly imposed on it “the burden to produce evidence beyond what was required by the law and failed to take into consideration the substantial evidence, including Park’s admissions, which supported the finding that Park violated the Department rules.” Appellant’s Brief at 12. Employer argues that it was not required to produce additional evidence beyond Park’s admissions in order to establish that Park violated the Department’s rules and that the Board did not have the authority to impose the additional eviden-tiary burden on it. Employer argues that a written rule required officers, including Park, to “promptly obey any lawful order of a supervisor” and that “Park admitted that he intentionally disregarded his supervisor’s order because he disagreed with it.” Id. at 13. Employer asserts that the Board “wants to create an exception to the rule that does not exist” and that “[t]he rule does not provide that an officer can disobey the order just because he disagrees with it.” Id. at 15. Employer further argues that Park admitted that he failed to conform to rules and regulations when he delivered a written warning to a driver at the home of the driver’s parents and that it was improper for the Board to require Employer to have an actual citizen testify at the hearing or to provide dates relating to the receipt of the citizen’s complaint. Employer also argues that Park admitted that he used his title and position as a police officer to obtain information that he would not have been able to obtain otherwise. Employer asserts that the Board’s finding that “[t]here was no indication that Park would be discharged based on any single incident that was the basis of [its] recommendation with the exception of retaliation” is “directly contrary to the evidence and an improper legal conclusion.” Id. at 21. Employer also asserts that the Board’s findings that it chose to investigate the incidents at one time and not when they occurred and that Park’s discharge was not based on progressive discipline are not supported by, but are contrary to, the evidence.

The Board asserts that “[w]hile [Employer] argued that the ALJ imposed a burden beyond what is required in unemployment insurance law, it seems that the real crux of [Employer’s] argument goes to the weight the ALJ gave the evidence,” that “[t]he ALJ determines credibility and made a determination that Park was more credible than the evidence provided by [Employer],” and that “[contrary to [Employer’s] assertion, no additional evidentia-ry burden was imposed upon it by the ALJ.” Appellee’s Brief at 8. The Board argues that Employer states that it had a written rule which required officers to promptly obey any lawful order of a supervisor but that Employer did not submit a copy of its employee handbook. The Board further argues that Park was able to make an independent determination whether to arrest an individual based on probable cause and is not required to obtain the permission of a supervisor and thus that the Board properly determined that Employer failed to prove that Park violated a rule and disobeyed his supervisor when he arrested both juveniles instead of just one of them. The Board asserts that it did not find the evidence in connection with the citizen complaints to be compelling of discharge and that it was reasonable for the ALJ to conclude that Employer “needed to meet its burden with respect to each complaint made against Park” and that “[e]vidence supporting only one incident was insufficient to justify a finding of discharge for just cause.” Id. at 10. The Board also maintains that the ALJ did not rely on Employer’s failure to timely investigate the citizen complaints or to engage in progressive discipline in concluding that it failed to meet its burden of proof.

In its reply brief, Employer argues that the Board improperly required it to produce additional evidence beyond a prima facie case, that Park admitted to the rule violations, and that “[tjhis is not an issue of credibility.” Appellant’s Reply Brief at 5. Employer further argues that it was not required to prove a “totality” of action or prove every violation in the original charging letter in order to establish just cause for Park’s termination at the hearing. Id. Also, Employer argues that the Board’s decision does not state that it weighed the evidence and determined that Park was more credible as the Board argues but rather that the decision repeatedly states that “no evidence” was submitted. Id. at 7.

The employer bears the initial burden of establishing that an employee was terminated for just cause. Coleman v. Review Bd. of Ind. Dep’t of Workforce Dev., 905 N.E.2d 1015, 1019-1020 (Ind.Ct.App.2009). To establish a prima facie case for just cause discharge for violation of an employer rule, the employer has to show that the claimant: (1) knowingly violated; (2) a reasonable; and (3) uniformly enforced rule. Id. at 1020; Stanrail, 735 N.E.2d at 1203. To have knowingly violated an employer’s rules, the employee must: (1) know the rule; and (2) know his conduct violated the rule. Stanrail, 735 N.E.2d at 1203. If an employer meets this burden, the claimant must present evidence to rebut the employer’s prima facie showing. Coleman, 905 N.E.2d at 1020; Stanrail, 735 N.E.2d at 1203.

A uniformly enforced rule is one that is carried out in such a way that all persons under the same conditions and in the same circumstances are treated alike. Gen. Motors Corp. v. Review Bd. of Ind. Dep’t of Workforce Dev., 671 N.E.2d 493, 498 (Ind.Ct.App.1996). “In order to evaluate uniformity one must first define the class of persons against whom uniformity is measured.” Stanrail, 735 N.E.2d at 1203. This court has often stated that “[a]n employer’s asserted work rule must be reduced to writing and introduced into evidence to enable this court to fairly and reasonably review the determination that an employee was discharged for ‘just cause’ for the knowing violation of a rule.” Id. at 1205 (citing KBI, Inc. v. Review Bd. of the Ind. Dep’t of Workforce Dev., 656 N.E.2d 842, 844 (Ind.Ct.App.1995)); see also Doughty v. Review Bd. of Dep’t of Workforce Dev., 784 N.E.2d 524, 527 (Ind. Ct.App.2003) (citing Watterson v. Review Bd. of Ind. Dep’t of Emp’t & Training Serv., 568 N.E.2d 1102, 1105 (Ind.Ct.App.1991) (stating that reducing a rule to writing and introducing it into evidence is “the minimum evidence necessary for the employer to satisfy its burden that it has a rule and that that rule is reasonable and uniformly enforced”)). The reason for requiring uniform enforcement of a known and reasonable rule is to give notice to employees about what punishment they can reasonably anticipate if they violate the rule and to protect employees against arbitrary enforcement. Coleman, 905 N.E.2d at 1020.

In this case, at the April 18, 2011 hearing before the ALJ, Employer introduced a number of exhibits, which included the November 18, 2010 letter to the Car-mel Police Merit Board prepared by then Chief of Police Fogarty, the Merit Board’s findings of fact and conclusions of law, and copies of two written reprimands related to Park. Chief of Police Tim Green and Park testified before the ALJ. The November 18, 2010 letter set forth “G.O. 12.1.3 Lawful Orders,” which stated “All personnel shall promptly obey any lawful order of a supervisor including any other related from a supervisor by an officer of the same or lesser rank.” Exhibits at 22. In addition, the letter set forth “G.O. 61.1.8,” which provided that “[o]nce the officer has stopped the violator and approaches to a point where communications can begin, the following guidelines should be followed in terms of officer-violator relationships: ... 13. Return the violators [sic] operator’s license, registration, and a copy of citation or written warning.” Id. at 25. “G.O. 26” provides in part, under subsection B, that “[information regarding official business, communications records and data shall be disseminated only to those for whom it was intended, according to departmental procedures;” under subsection E that “[m]embers shall not conduct themselves in an immoral and/or indecent manner that impairs their ability to perform as police officers or causes the Department to be brought into disrepute;” and under subsection F that “[w]hen dealing with the public, members shall not use language or gestures that are indecent or discourteous,” that “[mjembers shall not enter into official departmental correspondence or official verbal communication with anyone, except in performance of their official duties,” that “[m]embers shall not intervene in the assigned case of another member without permission of their commanding officer, but shall give assistance when and where necessary,” and “[m]embers shall not use their official position, badge or credentials for personal advantage nor to solicit goods, services or gratuities.” Id. at 25-26.

With respect to Employer’s claim that Park disobeyed a lawful order, Chief of Police Green testified that a complaint was reported at a school involving a fight between two juveniles. Chief Green testified that Sergeant Keith instructed Park to arrest one of the juveniles and not the other. Chief Green testified that “[a]s a result of that, Officer Park ended up arresting] two individuals and didn’t follow the directives and orders of his sergeant, and also was found to have made some negative comments about the sergeant to a civilian employee at this location.” Transcript at 16. Chief Green indicated that Park disobeyed an order of Sergeant Keith to arrest one person and not the other. When asked “is there any rule or regulation that you’re aware of in the Carmel Police Department that requires a police officer who has statutory authority to arrest to get permission from a supervisor to make an arrest,” Chief Green answered “No.” Transcript at 61. Chief Green also indicated that Officer Park can decide to arrest someone based on probable cause. When asked whether he thought Park’s belief that it would be wrong to arrest one of the juveniles and not the other was rational, Chief Green testified: “I think it’s rational to discuss things if you have a different view point on things, but at that point Sergeant Keith had instructed Officer Park on what he wanted done. The issue [is] that Officer Park did not follow that, nor did he speak with ... Sergeant Keith, regarding that prior to making his decision.” Id. Chief Green testified “So that’s not the same as an officer, you asked me if an officer can make an arrest based on probable cause. Yes, he or she can, but an officer, once instructed on how to carry something out, knows exactly then what needs to be done and if they have a problem or disagree with that, they can go through a certain procedure and that was not even done, sir.” Id. at 62.

Park testified that when he arrived at the school Sergeant Keith stated “this one is going to juvenile, or jail, this one is going home with his mom.” Id. at 79. Park testified that Sergeant Keith handed paperwork to him to complete the report and that Sergeant Keith called a juvenile prosecutor. Park testified:

Once it was determined that the first juvenile ... was to be arrested, I then as per rules and regulation transported him back to the police department where ... I began to get his side of the story, which is what I’m required to do. I’m gonna be doing a report and putting the charges on. After listening to his side of the story, I determined that this was not a case of self defense, but this was a case of mutual combat and that further investigation needed to be conducted.

Id. at 79-80. When asked “[s]o [you] ultimately conducted that investigation and arrested both juveniles,” Park answered “I did.” Id. at 80. Park does not point to the record to show that, after arresting and interviewing the initial juvenile, he secured permission to arrest the second juvenile or discussed the case or his concerns about any failure to arrest the second juvenile with Sergeant Keith or his supervising officers prior to making the arrest of the second juvenile despite Sergeant Keith’s previous instructions or order.

By the nature of their positions, police officers face critical decisions, some presenting life and death consequences. Given the risks posed, discipline is essential. The failure to follow the orders of a superi- or officer can result in death, grievous injury, or serious financial loss. The failure of an employee to follow the uniformly enforced rules of the employer has long been recognized as just cause for termination because the failure to follow such rules can have serious consequences. When we move from the general employment arenas to police forces, the potential consequences of such failures become much more dire. Here, there is no evidence of any justification for Park’s actions in violating the instructions of his superior officer, other than that he himself concluded that the second juvenile should be arrested. Based upon the record, we conclude that Employer demonstrated that Park’s actions were in violation of Employer’s rules and that Park’s arrest of the second juvenile, under the circumstances, constituted a failure to obey a lawful order under Employer’s rules. Accordingly, Employer demonstrated just cause for discharging Park, and we reverse the findings of the ALJ and Board on this issue.

In addition, as found by the Merit Board in its decision that Park’s employment with the Carmel Police Department be terminated, there were a number of other complaints and rule violations by Park, and Park had prior disciplinary issues. Although separate evidence was submitted on some, but not all of Park’s disciplinary history to the ALJ, these findings by the Merit Board were before the ALJ. For instance, Employer presented evidence that, after arresting the first juvenile, Park went back to the school and spoke with the school’s principal “during which time [the principal] felt very uncomfortable, felt this was not proper and reported this to the department.” Id. at 48. Further, the Merit Board found that Park stopped an eighteen year-old woman for speeding, obtained her driver’s license and vehicle registration, released her without issuing a citation or warning, and later completed a written warning for speeding, which he took to the residence of the driver and delivered it to her mother. The driver’s mother complained that Park made her feel uneasy and told her that he had stopped and watched her and her daughter play tennis.

Also, in its decision, the Merit Board set forth Park’s history of discipline and work performance, which indicated among other incidents that Park was given • a verbal counseling session in April 2008 due to his behavior during a field training program showing frustration and his desire to return to another police force; a verbal counseling session in July 2008 in response to his conduct during a stolen vehicle investigation in refusing to take a report; a written reprimand in September 2008 after Park had been admonished by a judge in open court for poor performance, lack of preparation, inconsistency, and being untruthful in Carmel City Court; a verbal counseling session in September 2008 related to an incident in which Park had handcuffed a man who was not under arrest and searched him but did not notice a large knife sticking out of the man’s pocket; a counseling and order to change an accident report in September 2008 involving an incident where a school bus driver struck an unoccupied and properly parked vehicle and Park’s report stated that the unoccupied vehicle was at fault for the collision; an advisement in May 2009 due to a citizen complaint for his slow response after an alarm company reported an alarm at a citizen’s house because Park chose to finish his breakfast before responding to the dispatch; a counseling session reprimand in February 2009 related to Park conducting a traffic stop for an act that occurred on private property and failing to follow proper departmental procedures; a counseling session in December 2009 for neglecting to take a report for check deception and failing to collect the evidence of deception; and an internal investigation in July 2010 based upon two separate complaints from women who advised that Park had been “hitting on them” and video from one of the traffic stops showed that Park hugged the woman several times during the traffic stop.

Based upon the evidence and testimony before the ALJ and Board, we conclude that Employer showed that Park violated a reasonable and uniformly enforced rule related to a lawful order of a supervisor and other departmental rules and that therefore Employer demonstrated that Park was discharged for just cause. Accordingly, we reverse the decision of the Board that Park was discharged but not for just cause and remand for further proceedings consistent with this opinion.

For the foregoing reasons, we reverse the decision of the Board and remand for further proceedings.

Reversed and remanded.

BAKER, J., and KIRSCH, J., concur.


source: Caselaw Access Project

author: FRIEDLANDER, Judge.

license: Public Domain

text:
    In re the Matter of the PATERNITY OF S.C. K.C., Appellant-Respondent, and C.C., Appellee-Petitioner, and B.H., Appellee-Intervenor.
    No. 30A01-1107-JP-322.
    Court of Appeals of Indiana.
    July 3, 2012.

      Bryan Lee Ciyou, Ciyou & Dixon, P.C., Indianapolis, IN, Attorney for Appellants.
   OPINION ON REHEARING

FRIEDLANDER, Judge.

In In re the Matter of the Paternity of S.C, we affirmed the Hancock Circuit Court’s grant of B.H.’s Verified Petition for Relief from Judgment for Fraud Upon the Court. We need not undertake an exhaustive recitation of the underlying facts. To summarize, C.C., with K.C.’s (Mother’s) cooperation, filed an action in Hancock County that sought, in part, an adjudication that C.C. was the biological father of S.C. This action was filed while another paternity action was pending in Fayette Circuit Court, the latter instituted by B.H. claiming that he was S.C.’s father. Neither C.C. nor Mother apprised the Hancock Circuit Court of the existence of the Fayette County proceeding. The Hancock Circuit Court granted C.C.’s petition to establish paternity the day after it was filed, which also happened to be the day before a scheduled hearing in the Fayette County proceeding. B.H. was served with the Hancock County paternity order at the Fayette County hearing. Following the Fayette County hearing, the trial court dismissed that case. Approximately nine days later, B.H. filed a motion to set aside the Hancock County judgment on grounds that Mother committed fraud upon the court in not informing the Hancock Circuit Court of the then-pending Fayette County proceeding.

The Hancock Circuit Court granted the motion and vacated its earlier paternity judgment. We affirmed that ruling. In reaching that decision, we stated,

In conjunction with that petition, B.H. sought and received an order compelling Mother and S.C. to submit to DNA testing before they left the hospital. The day that order was served upon Mother, i.e., July 30, 2008, C.C. and Mother executed an affidavit of paternity identifying C.C. as S.C.’s biological father. The DNA test was performed on July 31, 2008, and the record contains a DNA Test Report form completed by an entity identified in the record as the DNA Diagnostics Center (the DDC), dated August 4, 2008. The DDC report form indicates there is a 99.9997% likelihood that B.H. was S.C.’s biological father.

In re Paternity of S.C, 966 N.E.2d 143,149 (Ind.Ct.App.2012). Mother contends that we erred in stating “that the purported DNA test had been ordered by the Fay-ette Circuit Court.” Appellant’s Petition for Rehearing at 1. Our statement was premised in part upon the Hancock County court’s Findings 6 through 8, which found that on July 29, 2008, B.H. filed a petition to establish paternity of S.C., naming Mother as the respondent. Two days later, Mother and S.C. underwent DNA blood tests. In his July 29 Verified Petition for Immediate Paternity Order, B.H. stated that Mother would not willingly submit to a DNA test and sought an order compelling her and S.C. to do so. On July 30, B.H.’s petition was served upon Mother by mail and left at the residence of her parents. Two days later, Mother submitted to a blood test after the hospital in which she was staying informed her that she would not be able to leave until the blood was drawn, although she claimed at the Fayette County court hearing that she did not know the purpose or nature of the test.

Although someone at the hospital where S.C. was born obviously believed that the hospital was under court order to perform a paternity test, it perhaps went too far to indicate that the record establishes that the Fayette Circuit Court ordered the test. Regardless of whether the Fayette Circuit Court ordered the test, however, the record supports the Hancock Circuit Court’s finding that a DNA test was performed at the hospital on Mother and S.C. — a test that Mother clearly did not seek. Mother’s complaint upon petition for rehearing that the Fayette Circuit Court did not order the test is part and parcel of the central thrust of her argument upon appeal and again upon petition for rehearing. That argument is that B.H. failed to initiate a paternity action that comported with statutory requirements and also that the DNA paternity test, if indeed there was one, was not admissible to support a finding of paternity in B.H.’s favor.

As we stated in our original opinion, however, the validity and admissibility of the DNA test, and indeed the ultimate viability of the paternity action instituted by B.H. in Fayette County, is beside the point with respect to the Hancock County order under review. The question is whether Mother committed fraud upon the Hancock Circuit Court by failing to apprise that court of the Fayette County proceeding.

In granting the petition for rehearing, we reiterate the points we made in our original opinion — the Hancock County order vacating its previous paternity order was not premised upon the adequacy of service of process upon Mother of B.H.’s Fayette County petition. It was not premised upon the ultimate viability of the Fay-ette County paternity proceeding instituted by B.H. It was not premised upon the admissibility of the DNA tests performed upon Mother and S.C., nor upon the Fay-ette Circuit Court ordering that the DNA test be taken. Rather, it is enough that the record supports the Hancock Circuit Court’s finding that a paternity action was indeed filed and pending in Fayette County and that Mother knew of the action when she participated in the Hancock County action. It is enough that there was evidence to support the Hancock Circuit Court’s finding that Mother did not inform the Hancock Circuit Court of the pending Fayette County paternity proceeding. And, it is enough that there was evidence to support the finding that Mother knew there was a reasonable possibility that B.H. was S.C.’s biological father, regardless of any defects or deficiencies in B.H.’s legal efforts to establish his paternity as a matter of law.

Therefore, we grant the petition for rehearing and reaffirm our original opinion subject to the comments herein.

MATHIAS, J., concurs.

RILEY, J., dissents without separate opinion.

      . Almost contemporaneously with C.C.’s petition to establish paternity in the Hancock County action, Mother and C.C. filed a Verified Joint Stipulation Establishing Paternity and Agreed Entry, stipulating to C.C.’s paternity, among other things.


author: BAKER, Judge.

text:
    James MIES and Janice Mies, Appellants-Petitioners, v. STEUBEN COUNTY BOARD OF ZONING APPEALS, Appellee-Respondent.
    No. 76A03-1112-PL-564.
    Court of Appeals of Indiana.
    July 3, 2012.

      Robert W. Eherenman, Haller & Colvin, P.C., Fort Wayne, IN, Attorney for Appellants.
    James O. Waanders, Indianapolis, IN, Attorney for Appellee.
   OPINION

BAKER, Judge.

In this case, the sins of a contractor were imputed to the homeowners of a lake cottage after the contractor failed to obtain the necessary permits for new a deck and stairs. To remedy the situation, the contractor sought a post-construction variance for the newly-constructed deck and stairs because neither complied with a zoning ordinance requiring a twenty-foot lakefront setback. The Board of Zoning Appeals approved the variance for the stairs with the condition that the deck had to be brought into compliance with the twenty-foot setback. The homeowners refused to comply, arguing that the Board lacked statutory authority to impose conditions on the variance, which made the condition void or, in the alternative, that the newly-constructed deck and stairs did not violate the zoning ordinance because it maintained its nonconforming status. We conclude that the newly-constructed deck and stairs lost their nonconforming status under the local zoning laws but that the Board lacked the statutory authority to impose a condition on a variance which rendered their entire decision a legal nullity.

Appellants-petitioners James and Janice Mies (collectively, “the Mieses”) appeal the trial court’s order reversing the decision of the Steuben County Board of Zoning Appeals (BZA) and remanding the case back to the BZA, after concluding that the BZA’s decision granting the Mieses a development standards variance with a void condition was a legal nullity. The Mieses argue that the underlying variance and void condition are severable and that the trial court should have upheld the underlying variance while voiding the condition. Additionally, the Mieses argue that even if the trial court did not err in voiding their variance, it erred by concluding that a deck that was attached to their cottage had lost its status as a nonconforming structure that is exempted from the development standards ordinances.

The BZA cross-appeals, arguing that the trial court elevated form over substance when it concluded that it imposed an unauthorized condition on the Mieses’ variance. In the alternative, the BZA contends that the Mieses consented to the condition by not objecting to it.

Concluding that the Mieses did not consent to the unauthorized condition, that the underlying variance is not severable from the void condition, making the BZA’s entire decision a legal nullity, and that the Mieses’ new deck lost its nonconforming status and is no longer exempted from the zoning ordinances, we affirm the decision of the trial court.

FACTS

A. The Lot Before Improvements

The Mieses are residents of Birmingham, Michigan but own a lot adjacent to Lake Gage in Steuben County. The lot has, at all relevant times, been improved with a cottage. The Mieses’ lot drops about twenty feet in elevation over a distance of roughly thirty feet to the lake.

Prior to the construction activities discussed below, the lot was also improved with an L-shaped deck which wrapped along the lakefront side of the cottage and then around a portion of the side of the cottage. The portion of the deck along the lakefront side of the cottage extended northeast from the second floor of the cottage to within nine or ten feet of the lake. The portion of the deck along the side of the cottage had wooden stairs extending from the side of the deck southeast to a landing. The stairs then extended from the landing northeast to the ground near the lake.

B. Improvements and Repairs

In early 2010, the Mieses noticed that a crack in the foundation of the cottage was worsening because the deck attached to the cottage was slipping towards the lake and putting stress on the foundation of the cottage.

On January 26, 2010, the Mieses obtained an estimate from Travis Kyle of T.K. Construction to repair the foundation and deck. The quote stated that the job included removing the old deck and disposing of it. The total cost for material and labor was $2,900.

On March 4, 2010, before approving the estimate, the Mieses asked Kyle for an updated estimate for rebuilding the deck according to them specifications. On March 25, 2010, Kyle responded with the following quote:

First I will have to pull permits to build your deck. Once I have done that and the existing deck is torn down when I fix the foundation I will start building the new deck, replicating most of the old deck with a few changes.... The stairway and the landing will all be replicated as the original. I had also priced the deck with 5 ½ decking and 2x6. The price I will give u is with 5 ½ decking if you want 2x6 it will cost and extra six hundred dollars. I will also be painting and staining the railing and decking.

Appellant’s App. p. 212 (emphasis added).

On April 12, 2010, the Mieses accepted Kyle’s updated estimate to perform the quoted work for $8,950. On April 19, 2010, Kyle applied for a building permit for “rebuilding deck,” “deck reconstruction 10' x 26' x 23' x 6'” and “replacing old rotted wood decking only” from the Steuben County Plan Commission and Building Department. Appellant’s App. p. 194. The Plan Commission responded “ILP not required — replacing old boards on existing deck.” Id. at 195. The Building Department responded, “replace Deck Boards only[,] no change to railing[.] [N]o building permit req.” Id. at 195.

Kyle did not apply for or obtain a building permit for the repair of the foundation or replacement of the deck. Kyle “then tore down the deck that was affixed to the house, performed the foundation repair, and then rebuilt the deck, which was smaller than the original deck.” Appellant’s App. p. 202. The new deck extends from the second floor of the front of the cottage to within fifteen feet of the lake, and the new stairs extend from the side of that deck to within two feet of the lake.

C. Initial Decisions of the Plan Commission, Plan Director, and BZA

On May 6, 2010, a “stop work order” was issued by the Plan Commission to the Mieses for violating the Steuben County Zoning Ordinance (SCZO). Appellant’s App. p. 253. Specifically:

In April 2010, an agent for the applicants came to the Plan Commission Office and Building Department to discuss permitting requirements for a deck project. At that time, the project was presented as limited repair to the existing deck structure. The deck was considered to be legally nonconforming because it extended into the required lakefront setback.
The zoning ordinance allows for regular maintenance and repairs to existing, non-conforming structures as long as the value of the work does not exceed 50% of the value of the structure in any given year.
An investigation by code enforcement staff determined that the nonconforming deck structure had been completely removed and replaced with a new deck structure, without permits and within the required lakefront setback. A stop work order was issued by the Plan Commission Office for violations of the Steuben County Zoning Ordinance on May 6, 2010.

Appellant’s App. p. 253 (emphases added).

On July 7, 2010, Kyle applied for a “post construction” building permit for a “Deck/Stairway” from the Plan Commission and Building Department. Appellant’s App. p. 280. Kyle was advised that the new deck and new stairs would now have to comply with the SCZO’s twenty-foot lakefront setback requirement. Kyle was also advised that he could apply on behalf of the Mieses for a variance from the SCZO’s twenty-foot lakefront setback requirement with the BZA.

On July 8, 2010, Kyle also submitted on behalf of the Mieses a “Dimensional Variance Application Form” to the BZA describing the nature and size of the existing improvements as “24' x 24' L-shaped deck and stairs from deck to ground” and requesting a single variance for “2' lakefront setback for stairs R/T 20'.” Appellant’s App. p. 260. The BZA assigned the application Petition No. V-10-47. Id. It is undisputed that the new deck extends five feet into the twenty-foot setback area, and the new stairs extend eighteen feet into the twenty-foot setback area.

The BZA scheduled and issued a notice of hearing on the application for August 9, 2010, stating the “purpose of the application is as follows: (V-10-M) James & Janice Mies petition for one-post construction, developmental-standard variance for a deck. Variance is for lakefront setback of two (2) feet rather than the twenty (20) feet required.” Appellant’s App. p. 136 (emphasis in original).

On August 9, 2010, the BZA held its hearing on the Mieses’ Petition No. V-10-47. At the hearing, Kyle testified on behalf of the Mieses that he knew he should have obtained a permit for the new deck and stairs but that he did not do so because he “was swamped” and because the Mieses wanted the new deck and stairs for a “family reunion get together.” Appellant’s App. p. 182. Kyle also testified that he realized that he had “put on a completely new deck.” Id. at 183.

During the hearing, a member of the BZA asked whether the BZA had to say “yes or no to the whole thing” or whether the BZA could “say this has to happen to the deck and this has to happen to the stairs?” Appellant’s App. p. 185. The BZA and Kyle discussed at length whether the new deck could be shortened to meet the SCZO’s twenty-foot setback requirement, while maintaining the stairs. Kyle conceded that it could be done. More particularly, the following colloquy occurred between the BZA and Kyle:

[BZA] Basically, what I have heard is we did not have enough time to get the variance because we wanted to have a party, I was too busy to come up and get the stuff. I haven’t heard, I haven’t heard a hardship. Would you identify a hardship that is associated with this? In order to get, in order to get a variance you have [to] identify a hardship.
[Kyle] As far as, they want to be able to use their home. They have had no place to have any get together whatsoever, you know, out on that whole property because the top side of the property I mean up the road [... ]
[BZA] We visited the property[?]
[Kyle] Yeah. There is, I mean there is no place to sit, congregate, talk, I mean they have no place, no other way to get to that French door, which their back door they actually had to walk through the house to get down to the second story. _ actually the stair system they had to walk clear out to the front, walk around inside the house and come down, and I mean it is actually quicker to be in the house and almost run down to the deck and come in through the French doors than what it is actually, you know, going through the top side.
[BZA] I think what he is saying is that it is the contour of the lot.
[Kyle] Yeah. But like I said, you know, we could cut it back as far as, you know, come back to the line there, but it would be so much, you know, it would be so tight through there that it actually would be kind of awkward to walk around there and I mean as far as working on the front side of the house it would be a hardship also because, I mean they want me to paint their house for them, all their soffits and everything and there is no way to set an extension ladder up on the front side of the house unless the deck is actually there to set your extension ladder up on because the slop[e] is actually right there at that line almost where the header was at. I am like two feet back from where it is just like a straight drop down to the lake. I mean there would be no way to get any ladder, scaffold system or anything out there to even work on it.
[BZA] And you should have had this discussion before you build the deck.
[Kyle] Un uh. Yeah I understand that.
[BZA] A, personally, I mean I have got no problem with the stairs. I understand the problem of getting down a steep hill to get to the lake front and there is quite a few properties along that South Lake Gage Drive that had that problem. A, but I just can’t for the life of me see why we should allow this deck to go beyond the 20 foot setback. Particularly, now — maybe before, but not now. I don’t think there is a, real hardship.

Appellant’s App. p. 188-90.

The BZA proceeded to vote on Petition V-10-47. The voting forms described the variance request as a “post-construction lakefront setback of two (2) feet rather than the twenty (20) feet required for a deck.” Appellant’s App. p. 244. The BZA concluded that all requirements for a dimensional variance had been met with respect to the stairs. That said, the BZA checked , the box “Approved with Conditions” on the voting form. Id. The BZA noted that a two-foot setback was permitted for the stairs as they had been constructed with the “[r]est to be in compliance.” Id.

No appeal was taken from the BZA’s August 9, 2010 action on Petition V-10-47. However, the Mieses and Kyle took no steps to bring the new deck into compliance with the SCZO or the variance approved by the BZA.

D. Enforcement Actions of the Plan Commission and Plan Director

On December 7, 2010, enforcement officers for the Plan Commission issued a Notice of Violation (NOV) to the Mieses, indicating that the deck had been constructed without an Improvement Location Permit (ILP) and that although the BZA had approved a variance, “the variance came with conditions,” namely, “that the deck had to be brought into compliance” with the twenty-foot setback requirement and that “[n]o one has obtained a permit so that the deck can be brought into compliance.” Appellant’s App. p. 287.

On January 6, 2011, the Mieses, through legal counsel, responded to the NOV by letter to the Steuben County Plan Director. In this letter, the Mieses argued that the improvements to their nonconforming deck are not in violation of the SCZO. Additionally, the Mieses maintained that the BZA had no statutory authority to impose conditions on the variance and, consequently, the only enforceable- provision of the variance is the two-foot setback for the stairs. The Mieses agreed to obtain any necessary permits and to pay all filing fees but emphasized that all such permits should be issued because their deck does not violate the SCZO.

On February 7, 2011, the Plan Director responded to the Mieses by rejecting the various arguments set out in their January 6, 2011 letter. More particularly, the Plan Director responded that once the “deck was completely removed from the property, and a new deck was built in its place ... the non-conformity cannot be later reestablished. Appellant’s App. p. 276-77. The Plan Director also conceded that while the enabling act did not expressly grant authority to the BZA to impose conditions on a variance, “we believe imposition of conditions is a necessary action of local government to carry out its duties, namely granting relief from standards of the SCZO while still protecting the health, safety, and welfare of the applicants, surrounding properties, and the community.” Id. at 277. The Plan Director also highlighted the fact that the agent for the Mieses was allowed to speak and although “the agent did not expressly agree to the conditions, he did not object to them. Rather, he asked what he would need to do in order to comply with the conditions.” Id. The Plan Director invited the Mieses to appear before the BZA to have the conditions of their variance amended. In addition, the letter informed the Mieses that they may appeal the decision within ten days and that the Plan Commission would suspend action as they worked towards a resolution.

E. Appeal to the BZA

On March 1, 2011, the Mieses appealed to the BZA the decision that their deck does not comply with the SCZO and the determination that once a nonconforming deck is removed, it cannot be reestablished. The BZA assigned this appeal Petition No. AP-11-01. A hearing on Petition AP-11-01 was scheduled for April 11, 2011.

Also on March 1, 2011, the Mieses appealed “to amend conditions of an approved developmental-standard variance for a deck. Conditions are that the reduced lakefront setback is for steps only.” Appellant’s App. p. 257 (emphasis in original). The BZA assigned this appeal Petition No. V-10-47. A hearing on Petition V-10-47 was also scheduled for April 11, 2011.

At the April 11, 2011 hearing, the BZA heard arguments from the Mieses’ legal counsel on AP-11-01 and V-10-47. With respect to AP-11-01, which was described on the voting form as “[ojverturn a notice of violation that a deck does not comply with the zoning ordinance & a zoning determination that a non-conforming deck, once removed, cannot be re-established,” the BZA affirmed the decisions of the Plan Director. Appellant’s App. p. 20-25. Regarding Petition V-10^47, the BZA voted to reject the petition to amend the conditions on the variance.

F. Appeal to the Trial Court

On May 10, 2011, the Mieses filed a verified petition for writ of certiorari to the trial court with respect to the three appeals that were before the BZA at the April 11, 2011 hearing. On that same day, the trial court issued an order to show cause, and on June 13, 2011, the trial court issued the writ of certiorari.

On October 2, 2011, the Mieses filed a motion for summary judgment, and on November 3, 2011, the BZA filed its response. On November 9, 2011, the trial court entered its order, and after setting forth findings of fact and conclusions of law, entered the following decree:

1. The decision of the BZA entered on August 9, 2010, is reversed.
2. This case is remanded to the BZA to conduct a new hearing upon the development standards variance requested by Mies.
3. At the conclusion of the hearing, each board member shall cast their vote either “granting” or “denying” the development standards variance requested by Mies without conditions being attached thereto.

Appellant’s App. p. 13. The Mieses now appeal.

DISCUSSION AND DECISION

I. Standard of Review

The Mieses argue that the trial court erred when it reversed the BZA’s April 9, 2010 decision, rather than reversing the BZA’s April 11, 2011 decision, upholding the NOV, which sought to enforce the condition that had been placed on the variance. More particularly, the Mieses contend that the trial court exceeded its jurisdiction by reversing the BZA’s decision, granting their variance. In other words, the Mieses argue that the condition on the variance should be voided without voiding the entire variance.

When a court reviews a decision made by a BZA, it must determine whether the decision is:

“(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) contrary to constitutional right, power, privilege, or immunity; (3) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right; (4) without observance or procedure required by law; or (5) unsupported by substantial evidence.”

Equicor Dev., Inc. v. Westfield-Washing-ton Twp. Plan Conim’n, 758 N.E.2d 34, 36 (Ind.2001) (quoting Ind.Code § 4-21.5-5-14).

When reviewing a decision of a BZA, this Court is bound by the same standard of review as the trial court. S & S Enterprises, Inc. v. Marion Cnty. Bd. of Zoning Appeals, 788 N.E.2d 485, 489 (Ind.Ct.App.2003). In reviewing an administrative decision, the trial court may not try facts de novo or substitute its own judgment for that of the agency. Id. at 490. Likewise, the reviewing court will neither reweigh the evidence nor reassess the credibility of witnesses. Id.

This Court has previously recognized that the “powers of the BZA are strictly limited to those granted by its authorizing statute.” Schlehuser v. City of Seymour, 674 N.E.2d 1009, 1014 (Ind.Ct.App.1996). When the BZA takes action that exceeds those powers, those actions are ultra vires and void. Id. A void action is subject to collateral attack at any time. Elkhart Cnty. Bd. of Zoning Appeals v. Earthmovers, Inc., 631 N.E.2d 927, 929 (Ind.Ct.App.1994). And while Indiana Code sections 36-7-4-918.2 and -918.4 expressly authorize the BZA to impose reasonable conditions when it approves certain use variances, on August 9, 2010, when the BZA approved the Mieses’ development standards variance for a two-foot lakefront setback, Indiana Code section 36-7-4-918.5 (2002), amended, by P.L. 126-2011, did not give the BZA the authority to impose any conditions on a development standards variance. Indiana Code section 36-7-4-918.5 provides, in relevant part, that a “board of zoning appeals shall approve or deny variances from the development standards (such as height, bulk, or area) of the zoning ordinance.”

II. Appellee’s Arguments: Substance of the Variance and Consent

As an initial matter, the BZA contends that the trial court considered the form rather than the substance of the BZA’s variance in determining that it contained an unauthorized condition. In the alternative, the BZA argues that the Mieses consented to the condition imposed on the variance and have waived their argument that the approval of the variance with the condition was invalid.

A. Substance of the Variance

The BZA maintains that the trial court erred by “by improperly imposing an overly rigid and technical requirement on the specific form of the language which the BZA was permitted to use to grant a valid variance.” Appellee’s Br. p. 25.

Here, the BZA’s voting form from the August 9, 2010 hearing described the variance request as “a post-construction lakefront setback of two (2) feet rather than the twenty (20) feet required.” Appellant’s App. p. 44. The voting form states that the variance has been “Approved with Conditions,” namely, a “2' setback for the stairs as constructed, rest of structure must be brought into compliance.” Id. At the August 9, 2010 hearing, the BZA described the Mieses’ request as a “standard variance for a deck.” Appellant’s App. p. 181. Indeed, a substantial portion of the entire hearing was devoted to a discussion of the variance as it applied to the deck.

Even after the December 2010 NOV was issued, the BZA continued to describe the Mieses’ initial variance request as one for “a post-construction lakefront setback of two (2) feet rather than twenty (20) feet required for a deck.” Appellant’s App. p. 258. Furthermore, in the notice of the April 11, 2011 hearing on the Mieses’ appeal of the NOV, the outcome of the August 9, 2010 hearing was described as: “The Board of Zoning Appeals granted the variance with the condition that the reduced lakefront setback is for the attached steps only and that the remainder of the deck must meet the minimum lakefront setback of 20 feet from the water.” Id. Under these facts and circumstances, we cannot say that the trial court erred when it determined that the BZA imposed an unauthorized condition on Mieses’ variance, which it was not specifically authorized to do by statute on August 9, 2010.

B. Consent

In the alternative, the BZA contends that the Mieses were barred from challenging the condition because they “consented to the conditions imposed on the variance at the August 9, 2010 hearing.” Appellee’s Br. p. 26. Specifically, the BZA points out that at the August 9, 2010 hearing, Kyle neither expressly agreed to the conditions nor objected to them. Appellant’s App. p. 187-90.

In support of its argument, the BZA directs us to Robert Lynn Co., Inc. v. Town of Clarksville Board, of Zoning Appeals, 867 N.E.2d 660 (Ind.Ct.App.2007). In Robert Lynn Co., the trial court concluded that the BZA did not approve Lynn’s application for a variance because the BZA conditioned its approval on future events of the Plan Commission, which failed to comply with the applicable statute and was characterized as no approval at all. Id. at 671. However, a panel of this Court determined that because both Lynn and the BZA “specifically agreed to the condition at issue — in other words, the BZA did not unilaterally impose the condition — and no one appealed the condition within thirty days” that under “these unique circumstances,” the approval and condition were valid. Id.

The Mieses distinguish Robert Lynn Co., by highlighting the fact that “there was no evidence of any written agreement by the Mies[es] to the condition imposed by the BZA....” Reply Br. p. 9. As discussed below, although we do find Robert Lynn Co. distinguishable from the instant case, we do not agree with the Mieses’ proffered distinction. Specifically, while we make no comment as to any claims that the Mieses may have against Kyle and T.K. Construction, we point out that the sins of the contractor are imputed to the owner. Indeed, Kyle’s failure to obtain the necessary permits was imputed to the Mieses.

Instead, we find Robert Lynn Co. distinguishable from the instant case because neither Kyle nor the Mieses expressly agreed to the condition imposed by the BZA. Consequently, the “unique circumstances” that existed in Robert Lynn Co. do not exist in this case, and we cannot agree that the Mieses agreed to the condition imposed by the BZA.

III. Void Condition Severable from Variance

The Mieses argue that the void condition attached to the August 9, 2010 variance did not render the variance a complete nullity. The BZA counters that the trial court, “having determined that the BZA had in substance only approved a variance for the stairs, properly abstained from rewriting the variance by voiding only the ‘conditions’ of the variance.” Appellee’s Br. p. 30.

At the outset, we note that the Mieses contend that the trial court exceeded its jurisdiction by reversing the August 9, 2010 decision, inasmuch as they did not challenge the BZA’s August 9, 2010 findings, and any error related to those findings are, therefore, waived. Thus, the Mieses simultaneously argue that the condition was subject to review because they appealed the December 2010 NOV in a timely manner but that the approval of the variance was not subject to review because they failed to appeal the August 9, 2010 variance within thirty days.

Regarding the variance, the Mieses concede that they did not apply for two variances because the “stairs and the rebuilt deck were not separate structures: the stairs and [the] deck were attached to each other, with the stairs extending further toward the lake than the deck.” Appellant’s Br. p. 18. On March 1, 2011, the Mieses appealed to amend the conditions of the variance. Appellant’s App. p. 257. The BZA voted to reject their petition on April 11, 2011, and the Mieses filed a verified petition for writ of certiorari with the trial court seeking a review of this decision. Under these unique facts in which the subject of the variance and the subject of the condition are intertwined; indeed, they are one structure, we cannot agree that the variance was not subject to review by the Mieses’ appeal to amend the conditions of that variance.

Moving forward, the Mieses rely on Elk-hart County Board of Zoning Appeals v. Earthmovers, Inc., 631 N.E.2d 927 (Ind.Ct.App.1994), in support of their position that conditions on variances should be considered independently from the underlying variance. In Earthmovers, the BZA had granted a special use permit for the operation of a landfill to be operated by Earthm-overs. Id. at 929. The BZA attached a condition to the permit that the landfill had to be a private landfill operated only by Earthmovers and its affiliates (Condition 12). Id.

Several years later, after Earthmovers had purchased the property, Earthmovers applied to the BZA for a modification of its special use permit to remove Condition 12. Id. Earthmovers argued that Condition 12 was void because it regulated the persons using the land rather than the land use. Id. After a public hearing, the BZA denied Earthmovers’s request, concluding that Condition 12 was not void and that the only reason for a change that had been proven by the evidence was economic in nature. Id. Earthmovers appealed, and the trial court reversed, concluding that Condition 12 was void because it related only to the person using the land, and was, therefore, not within the powers granted to the BZA. Id.

The BZA appealed, and a panel of this Court determined that Condition 12 was not void, inasmuch as “Earthmovers [] failed to show that Condition 12 was not intended to regulate traffic around the landfill,” and the record provided support that Condition 12 was imposed to regulate traffic. Id. at 931. “Only in the absence of such evidence may the BZA’s decision be reversed.” Id.

Nevertheless, the Earthmovers Court found that Condition 12 was voidable, insofar as it was defective for its specificity in naming Earthmovers. Id. at 932. The panel noted that “such specificity makes it impossible that subsequent owners of the land may enjoy the special use permit without going before the BZA to have inserted into Condition 12 the name of the entity who will be taking over operation of the landfill.” Id. The panel concluded that because Condition 12 was voidable, Earthmovers waived error in its imposition by failing to appeal the condition in a timely manner. Id.

Earthmovers is distinguishable from this case. As discussed above, it makes little sense to consider the void condition separately from the underlying variance or to require that the condition be severed from the underlying variance when the subjects of both are one structure. Moreover and perhaps most compelling, to sever the void condition from the underlying variance would require this Court to substitute its judgment for the judgment of the BZA in determining the scope of the development standards variance. As stated above, at the August 9, 2010 hearing, the BZA imposed the underlying variance and the void condition on one voting form; indeed, by checking one box labeled “Approved with Conditions.” Appellant’s App. p. 244. Consequently, under these circumstances, where the condition reflects the variance as the BZA approved it, rather than some collateral matter, the condition should not be separated from the variance, and the trial court did not err in reversing and remanding the BZA’s August 9, 2010 decision.

In a related argument, the Mieses maintain that the BZA is without authority to revoke a variance that has been granted because there is no statute or ordinance granting it such authority. Therefore, the only option is to sever the void condition from the underlying variance.

In support of this argument, the Mieses direct us to Schlehuser v. City of Seymour, 674 N.E.2d 1009 (Ind.Ct.App.1996). In Schlehuser, a panel of this Court considered the BZA’s authority to reconsider and revoke an existing use variance. Id. at 1011. The trial court had concluded that the BZA had such authority even in the absence of an express grant through statute or ordinance. Id. at 1013. The panel of this Court disagreed, noting that “[wjhile the City of Seymour has broad power as a ‘unit,’ including the residual power to revoke an existing variance under proper circumstances, the municipality must delegate that power to the BZA in an ordinance.” Id. The panel determined that the BZA had the authority to revoke variances if they were subject to reasonable and clearly stated conditions and if those conditions were not met. Id. at 1014. Because there was no transcript of the BZA’s proceedings, the panel remanded the case to review the actions of the BZA to determine whether the variances were issued subject to conditions and whether Schlehuser failed to comply with those conditions. Id.

Schlehuser is also distinguishable from the instant case, inasmuch as Schlehuser involved variances that had been properly granted in the first instance. Here, on one voting form, the BZA granted a variance subject to a void condition, making the entire act ultra vires and void. Put another way, the BZA’s August 9, 2010 decision “is contrary to law, void and of no force and effect.... It is to be considered for what it is — a complete legal nullity.” Appellant’s App. p. 12. Therefore, there is no variance to revoke, insofar as the BZA’s August 9, 2010 decision is a legal nullity.

IV. SCZO’s Nonconforming Use Provisions

The Mieses argue that even if the trial court did not err in remanding the variance back to the BZA for reconsideration, they do not need to comply with the SCZO’s twenty-foot setback because they did not lose them vested rights under the SCZO’s nonconforming use provisions. More particularly, the Mieses contend that the cottage and the deck are a single structure and that the value of that structure was $27,500, while the total cost of repairs was $8,950, which is well below the fifty percent threshold that repairs must exceed before the structure loses its nonconforming status under the SCZO.

The interpretation of a zoning ordinance is a question of law that is reviewed de novo. Story Bed & Breakfast LLP v. Brown Cnty. Area Plan Comm’n, 819 N.E.2d 55, 65 (Ind.2004). Zoning regulations that inhibit the use of real property are in derogation of the common law and are strictly construed. Flying J., Inc. v. City of New Haven Bd. of Zoning Appeals, 855 N.E.2d 1035, 1039 (Ind.Ct.App.2006). The courts construe a zoning ordinance to favor the free use of land and will not extend restrictions by implication. Id.

Chapter 22,' Section 22.02 of the SCZO provides:

Structures and buildings that are existing and lawful on the effective date of this Ordinance or amendments thereto, may be continued even though the structure or building does not conform with the dimensional or other provisions of this Ordinance, subject to the following provisions of this section.

Appellant’s App. p. 7-8.

Section 22.02(f) provides:
Repairs, improvements, or modernization of non-conforming structures and buildings shall be permitted provided the repairs or improvements do not exceed fifty percent (50%) of the value of the building or structure during any period of twelve (12) months.

Appellant’s App. p. 8. And Chapter 24 defines a “Structure” as:

Anything constructed or erected, the use of which requires location on ground or attachment to something having location on the ground. Structures include, but are not limited to, principal and accessory buildings, radio, television and cellular phone towers, decks, fences, privacy screens, walls, antennae, swimming pools, signs, gas or liquid storage facility, manufactured homes, prefabricated buildings, street directional or street name sign and billboards. The term also includes recreational vehicles to be installed on a site for more than 180 days.

Appellant’s App. p. 8 (emphasis added).

Here, it is undisputed that the Mieses’ old deck was a nonconforming structure. Additionally, a deck is defined as a “Structure” in Chapter 24 of the SCZO, even if it is attached to a building such as the Mies-es’ lake cottage. And Section 22.02(f) allows for repairs of nonconforming structures and buildings as long as the cost of the repairs does not exceed “50% of the value of the building or structure.” Because the deck is specifically defined as a structure under the SCZO, the cost of the repairs could not exceed fifty percent of the value of the deck.

The total cost of replacing the Mieses’ deck was $8,950. While the Mieses point out that the County Assessor had not assigned a separate value to the old deck for property tax purposes, we cannot say it was error to conclude that the cost of replacing the old deck exceeded fifty percent of its value. Accordingly, the new deck and stairs lost their nonconforming status under Section 22.02 of the SCZO, and this argument fails. Therefore, we affirm the trial court’s order reversing the BZA’s August 9, 2010 decision and remanding the case back to the BZA to conduct a new hearing on the post-construction development standards variance requested by the Mieses.

The judgment of the trial court is affirmed.

KIRSCH, J., and BROWN, J., concur.

      . According to the BZA, because of the quality of the audio recording of the hearing, the transcript of the hearing is not entirely complete. The notice of the hearing indicates that the BZA’s hearings are broadcast live and recorded for later viewing on the internet. Appellant’s App. p. 137.

      . In 2011, the General Assembly amended Indiana Code section 36-7-4-918.5 to enable the BZA to impose reasonable conditions as part of a development standards variance.


author: DARDEN, Judge.

text:
    Brenda STUTZ, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 49A02-1110-CR-960.
    Court of Appeals of Indiana.
    July 5, 2012.
    Suzy St. John, Marion County Public Defender, Indianapolis, IN, Attorney for Appellant.

      Gregory F. Zoeller, Attorney General of Indiana, Ryan D. Johanningsmeier, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

DARDEN, Judge.

STATEMENT OF THE CASE

Brenda Stutz appeals her conviction following a bench trial for operating a vehicle with a blood-alcohol content (“BAC”) of at least .15 percent, a class A misdemeanor.

We affirm and remand with instructions.

ISSUE

Whether the trial court improperly entered a judgment of conviction for operating a vehicle with a blood-alcohol content of at least .15 percent.

FACTS

During the afternoon of February 21, 2011, Kenneth Blake was sitting in the waiting room of the Foot and Ankle Institute in Indianapolis when he noticed Stutz. Stutz caught his attention because “she seemed a little loud in talking to somebody....” (Tr. 6). At one point, Blake heard Stutz excuse herself to make some phone calls “and then when she came back and passed by [him],” he smelled the odor of alcohol emanating from Stutz. (Tr. 6). Although Blake saw the vehicle in which Stutz had arrived at the doctor’s office, he did not observe her driving. Blake telephoned 911 and reported Stutz as a possibly impaired driver.

Shortly thereafter, dispatch relayed a description of Stutz, her vehicle and the license plate number to Indianapolis Police Officer Lona Douglas. When Officer Douglas arrived at the location, she observed Stutz in her vehicle as she “started to back out,” stop, “pull[ ] back forward,” stop again and then finally back out of the parking space. (Tr. 12). Officer Douglas exited her police vehicle and approached Stutz’s vehicle “as it was just sitting still outside of the parking spot-” (Tr. 13). Officer Douglas made eye contact with Stutz and “waved” at her. (Tr. 13). As Officer Douglas advanced toward the vehicle, Stutz “started to pull forward,” prompting Officer Douglas to return to her vehicle and activate her emergency lights. (Tr. 13). The two again made eye contact and as Officer Douglas walked toward Stutz’s vehicle, Stutz “started to drive off,” at which point Officer Douglas gestured to Stutz to stop her vehicle. (Tr. 13).

Officer Douglas approached the driver’s side of Stutz’s vehicle; Stutz, however, had not rolled down her window. Once Officer Douglas indicated that Stutz needed to roll down her window, Stutz “broke eye contact and began to fumble” with the window crank before rolling down the window “about an inch or so.” (Tr. 14). Officer Douglas asked Stutz whether she had been drinking. Although Stutz denied drinking, Officer Douglas “immediately” smelled the odor of alcohol. (Tr. 14). Officer Douglas also observed that Stutz’s eyes were “watery and bloodshot.” (Tr. 15). Stutz then opened the car door and “pulled herself out” of the vehicle. (Tr. 15). After Officer Douglas again asked whether Stutz had been drinking, Stutz admitted to having had “a couple of drinks” but did not know exactly how much as “she had taken drinks directly out of the vodka bottle.” (Tr. 15).

Given the inclement weather, Officer Douglas transported Stutz to the police department’s roll call site in order to administer field sobriety tests. Officer Richard Eldridge, a “DUI enforcement officer,” met Officer Douglas and Stutz at the site. (Tr. 35). He immediately “observed the signs of intoxication which w[ere] [the] odor of an alcoholic beverage emitting from [Stutz’s] person and breath, slurred speech with a thick tongue, bloodshot eyes” and “unsteady balance.” (Tr. 37). Officer Eldridge then administered several field sobriety tests, which Stutz failed. Officer Eldridge also administered a breath test with a B.A.C. Datamaster. The breath test revealed a blood-alcohol content of .20 percent.

On February 21, 2011, the State charged Stutz with Count 1, operating a vehicle while intoxicated in a manner that endangered a person, a class A misdemeanor; Count 2, operating a vehicle with a BAC of at least. 15 percent, a class A misdemean- or; and Count 3, public intoxication, a class B misdemeanor. The trial court held a bench trial on September 28, 2011. The State conceded that it had not presented any evidence of endangerment, which was required to elevate Count 1 to a class A misdemeanor from a class C misdemeanor.

The trial court found Stutz guilty of, and entered a judgment of conviction for, Count 1, operating a vehicle while intoxicated as a class C misdemeanor; Count 2, operating a vehicle with a BAC of at least .15 percent, a Class A misdemeanor, and Count 3, public intoxication. The trial court then sentenced Stutz to concurrent sentences of zero days on Count 1, 365 days on Count 2 and 180 days on Count 3, with all but six days suspended.

DECISION

Stutz asserts that the trial court improperly entered a judgment of conviction for

Count 2, operating a vehicle with a BAC of at least. 15 percent where the trial court also entered a judgment of conviction for Count 1, operating a vehicle while intoxicated as a class C misdemeanor. Citing to Sering v. State, 488 N.E.2d 369 (Ind.Ct. App.1986), she argues operating a vehicle with a BAC of at least .15 percent is a lesser-included offense of driving while intoxicated, requiring that the conviction on Count 2 be vacated.

In Sering, Sering appealed his convictions for operating a vehicle with a BAC of .10 percent and operating a vehicle while intoxicated. At that time, the former offense was a class C misdemeanor and the latter offense was a class A misdemeanor. In determining whether the former was a lesser-included offense of the latter, the Sering court held as follows:

Having found identity of harm or risk of harm in the two subject alcohol related driving offenses, we must determine whether one risk is greater than the other. We conclude the legislature has determined the risk occasioned by the intoxicated operator is greater than the risk occasioned by the BAC of .10% operator. This legislative intent is evidenced by the disparate classification of the two offenses; operating while intoxicated is a class A misdemeanor while operating with a BAC of .10% is a class C misdemeanor. This disparity is explained by the fact an intoxicated driver has demonstrated an inability to operate a vehicle in a prudent manner.[] Consequently, we can hypothesize the rationality in the difference in classification if we recognize some individuals may not be legally intoxicated, manifesting an impaired condition and loss of control to such an extent that others are endangered, with a BAC of .10%. If that is a valid assumption, and we believe it is, the greater harm or risk of harm occurs in the operation of a vehicle while intoxicated.
We conclude, therefore, that operating a vehicle with BAC of .10% is a lesser included offense of operating a vehicle while intoxicated because the former offense differs from the latter offense in that a less serious risk of harm to the public interest is required to establish' its commission.

Sering, 488 N.E.2d at 376 (original footnotes omitted) (emphasis added).

Effective July 2000, the legislature amended Indiana Code section 9-30-5-1 to add the offense of operating a vehicle with a BAC of at least .15 percent, which it classified as a class A misdemeanor. See I.C. § 9-30-5-l(b). Furthermore, in 2001,

the Legislature substantially altered the [operating while intoxicated (“OWI”) ] statutes by redefining intoxication and establishing two separate misdemeanor classes for operating a vehicle while intoxicated. The effect'of these changes was to remove the “endangerment” requirement from the general definition of intoxication and create the new offense of Class C misdemeanor OWI without an endangerment requirement.

Vanderlinden v. State, 918 N.E.2d 642, 645 (Ind.Ct.App.2009) (internal citation omitted), trans. denied.

Thus, there are two statutes that criminalize drunken driving: Section 1 punishes operating a motor vehicle with a certain BAC and elevates the offense if the person’s BAC exceeds a certain threshold; and Section 2 punishes operating a motor vehicle while simply “intoxicated” — without reference to the person’s BAC — and elevates the offense if the manner in which the person operates the vehicle endangers a person.

Simmons v. State, 962 N.E.2d 86, 91-92 (Ind.Ct.App.2011).

Given the amendments to the applicable statutes, we cannot say that Ser-ing applies. Clearly, the classification of operating a vehicle with a BAC of at least .15 percent as a class A misdemeanor and that of driving while intoxicated as a class C misdemeanor is evidence that the legislature has determined that the former offense constitutes a greater risk than the latter offense. We therefore conclude that class A misdemeanor operating a vehicle with a BAC of at least .15 percent is not a lesser included offense of class C misdemeanor operating while intoxicated. Cf. Rouse v. State, 525 N.E.2d 1278, 1281 (Ind.Ct.App.1988) (finding that operating a motor vehicle with a BAC of at least .10 percent or more, causing death, could not be the lesser included offense of driving while intoxicated, causing death, because “both offenses are Class C felonies, thus, indicating a legislative determination that the offenses are of equal harm or risk of harm”), trans. denied. We therefore affirm the trial court’s entry of a judgment of conviction for Count 2, operating a vehicle with a BAC of at least .15 percent, a class A misdemeanor. We, however, remand with instructions to the trial court to vacate Stutz’s conviction for operating while intoxicated as a Class C misdemean- or, as it should be merged with the conviction for operating a vehicle with a BAC of at least .15 percent; furthermore, the abstract of judgment shall be amended accordingly.

Affirmed and remanded with instructions.

RILEY, J., and NAJAM, J., concur.

      . Ind.Code§ 9-30-5-1.

      . Intoxicated means under the influence of alcohol so that “there is an impaired condition of thought and action and the loss of normal control of a person’s faculties." I.C. § 9-13-2-86. “Proof of intoxication does not require proof of blood alcohol content; it is sufficient to show that the defendant was impaired.” Gatewood v. State, 921 N.E.2d 45, 48 (Ind.Ct.App.2010), trans. denied.