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A split Court of Appeals of Indiana reversed a motion to dismiss and remanded for further proceedings on whether an Ogden Dunes couple can build a house taller than 30 feet that would obstruct the lake view of the houses behind them.
Greg and Robin Shinall own a home on a hill that they bought in 2005 in Ogden Dunes.
David and Cheryl Tarpo bought a home in 2015 north of the Shinalls’ on Lake Michigan. From the Shinalls’ they can see Lake Michigan above the Tarpos’ home.
The Tarpos wanted to build a new 6,500-foot home on their property in 2022, but the Ogden Dunes Zoning Code limits the height of residential buildings to 30 feet.
In May 2022, the Shinalls received notice that the Tarpos had applied for the height variance.
A month later, a public hearing was held on the Tarpos’ application where the Shinalls argued against the variance. The town’s board of zoning appeals approved the height variance.
The Shinalls then filed their own Verified Petition for Review of Zoning Decision where they claimed several properties would no longer have lake views due to the Tarpos’ new home.
The Shinalls argued that the zoning board’s decision should be set aside because it was inconsistent with the town’s zoning code standards.
They filed a certified copy of the zoning board’s record of proceedings with their petition for judicial review.
In September 2022, the defendants filed their joint motion to dismiss for lack of standing pursuant to Indiana Trial Rule 12(B)(6), along with a memorandum of law in support.
The defendants contended that the Shinalls had no legally protected right to an unobstructed lake view under Indiana common law.
In response, the Shinalls argued that the defendants had conceded that the zoning code furnished them with a legally protected interest in the view of the lake from their home.
In November 2022, the Porter Superior Court held a hearing on the defendants’ motion, where no evidence was heard.
A month later, the trial court issued its order dismissing the Shinalls’ petition for judicial review due to lack of standing.
The trial court didn’t enter findings of fact in support of its ruling.
The Court of Appeals reversed and ruled the trial court erred in granting the defendants’ motion to dismiss.
The appellate court remanded the case for further proceedings.
The one issue the Shinalls brought before the appellate court was whether the trial court erred in granting the defendants’ motion to dismiss the Shinalls’ petition for judicial review based on a lack of standing.
“In addition, the facts alleged not only demonstrate a pecuniary injury but establish an injury beyond that to be suffered by the community as a whole,” Judge Rudolph Pyle wrote.
The appellate court found only the Shinalls and neighbors would suffer from the loss of enjoyment and market value from an obstructed lake view.
The court held that the Shinalls had standing because they had a substantial grievance with the zoning board’s decision to grant a variance to the Tarpos. Thus, the trial court erred in granting the defendants’ motion to dismiss.
Chief Judge Robert Altice concurred but Judge Patricia Riley dissented with a separate opinion.
Riley disagreed that the Shinalls had standing and cites EP MSS LLC v. Merrillville Bd. of Zoning Appeals, 192 N.E.3d 981, 986 (Ind. Ct. App. 2022).
“Thus, we have concluded that it is not adequate to confer standing when petitioners seeking judicial review are nearby property owners or even that they assert a pecuniary loss; rather, petitioners must also have a legal right to the interest they claim was injured,” Riley wrote.
She also cited Center Townhouse Corporation v. City of Mishawaka, 882 N.E.2d 762, 772 (Ind. Ct. App. 2008), where the appellate court concluded that Indiana doesn’t recognize any common law riparian right of an unobstructed view of water by a landowner.
“However, if standing is conferred by the existence of a zoning statute itself, there is no limit to who may claim standing to contest a zoning decision,” Riley wrote. “Because the majority’s decision today throws open the floodgates of standing and conflicts with … EP MSS, and Center Townhouse Corporation, I dissent.”
The case is Greg and Robin Shinall v. Board of Zoning Appeals for Town of Ogden Dunes, Indiana; David and Cheryl Tarpo, 22A-PL-3098.
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