CALDERON v. ELKHART COUNTY BOARD OF ZONING APPEALS (2025)

MEMORANDUM DECISION

[1] Maria Calderon appeals from the trial court's Order on Petition for Judicial Review. We reverse and remand for written findings of fact by the Board of Zoning Appeals.

Facts and Procedural History

[2] In June 2016, the Elkhart County Advisory Board of Zoning Appeals (the “BZA”) granted a “Special Use for an auto salvage business in a M-2 zone” concerning the use of certain property (the “Real Estate”) with a street address of “58027 Riley Ave., Elkhart, IN 46517” (the “Elkhart Address”). Appellant's Appendix Volume II at 28. A “Commitment,” which stated “Date: March 25, 2020,” and was signed by Calderon on April 29, 2020, and recorded in the Office of the Recorder of Elkhart County as document number 2020-10786 on May 26, 2020, provided:

The Grantor [Calderon] agrees to abide by the following commitments concerning the use and/or development of the Real Estate with regard to the Special Use for an auto salvage business in an M-2 zone granted by the [BZA] on June 16, 2016:

1.  Approved in accordance with the site plan submitted (dated 5/16/16) and as represented in the Special Use application.

2.  An 8 ft. solid fence must be maintained in good condition, surrounding the Real Estate.

3.  Vehicles and associated parts must be stored properly, and excessive and unusable junk and debris must be removed.

4.  All business activities to use existing Riley Street entrance only and to take place entirely within the fenced area, including but not limited to the loading and unloading of vehicles.

Deviation from said commitments may result in the [BZA] rescinding the approval or permit. To the extent said commitments conflict with the site plan, application materials or presentation, said commitments shall control.

Id. at 28-29.

[3] On July 19, 2023, Laura Gilbert, the Administrative Manager for the Elkhart County Planning and Development Department (the “Department”), sent a “Notice to Appear and Show Cause” (the “Notice”) to Calderon by regular mail at two mailing addresses—the Elkhart Address, and “814 E Jefferson St, Goshen, IN 46528” (the “Goshen Address”). Id. at 105. The Notice provided:

You are hereby notified to be and appear before the [BZA] at its regularly scheduled meeting on August 17, 2023, at 9:30 a.m ․ to show cause, if any, why Special Use Permit 0231-2016, granted to you by [the BZA] on June 16, 2016, should not be revoked for your failure to comply with one of the four commitments imposed by [the BZA] ․ and agreed to by you in a Commitment dated March 25, 2020, and recorded as Document No. 2020-10786, specifically:

4. All business activities to use existing Riley Street entrance only and to take place entirely within the fenced area, including but not limited to the loading and unloading of vehicles.

Business activities, including but not limited to the parking and storing of vehicles, as well as the loading and unloading of vehicles, is taking place outside the fenced area, and ingress and egress to/from the property is taking place through a Morgan Street entrance, all in violation of Commitment #4.

You are entitled to appear at this hearing, to present evidence, and to present arguments. If you fail to appear [the BZA] may act in your absence.

Id.

[4] On August 17, 2023, the BZA held the scheduled hearing. Calderon did not appear. Kierstin Haarer, the Elkhart County Zoning Code Enforcement Officer, “presented a PowerPoint that went over the history of the commitments imposed in the original [BZA] approval of the Special Use.”¹ Id. at 92. Haarer stated that a complaint was received in 2019, and “they were sent a violation letter” and “came into compliance.” Id. at 96-97. She stated that further complaints were received, “they were still in violation in February of 2020, and they were sent a ticket,” “[t]hey were still in violation in July of 2020 and they were sent [a] ticket,” “the case was referred out to our attorney,” and “[t]hey came into compliance in November 2020.” Id. She stated “[w]e received another complaint in March of 2021,” “[t]hey were not following the commitments of the Special Use permit for the fence falling down,” and “[t]hey came into compliance for that, in September of 2022.” Id. at 97-98. Haarer then stated:

We received another complaint in May of 2023. They were not following the commitments of the Special Use permit. There were vehicles being parked outside the fence and it appears that the Morgan Street entrance is being used. They were sent a violation letter and they were still in violation in July and August of 2023. Since they have not been abiding by the commitments that were imposed in 2016 we recommend the permit be rescinded.

Id. at 98. David Wilkey stated, “I live across the street ․ from the gate that they're using that they're not supposed to be using” and “I just want them to be compliant, use the Riley Street gate, keep everything inside, and they're not.” Id. at 99. The Chairperson of the BZA moved to “[r]escind the commitment based on the recommendations and reasons set forth, recommended by the Staff.” Id. at 101. The Department's counsel, James W. Kolbus (“Attorney Kolbus”), stated, “[f]or violation of the commitment and imposed by the BZA,” and the Chairperson replied, “Yup.” Id. The BZA voted in favor of the motion. The BZA issued a “Result Letter” to Calderon stating: “special use permit rescinded for violation of conditions and commitments imposed by the Board.” Id. at 21 (capitalization omitted).

[5] On September 14, 2023, Calderon filed a Petition for Judicial Review. The petition alleged that Calderon did not receive actual notice of the August 17, 2023 hearing. The petition asserted:

8. The BZA staff mailed notice to Calderon at 58027 Ri1ey Avenue, but there is no mail receptacle at 58027 Ri1ey Avenue; notice mailed to Calderon at 814 E. Jefferson St., Goshen, IN 46528 would have complied with the BZA's rules regarding notice, but the BZA's notice was mailed to 814 E. Jefferson St., Goshen, IN 56526, according to the copy of the Notice to Appear and Show Cause counsel has obtained from BZA staff.

* * * * *

14. Moreover, because the BZA did not support its decision by findings of basic fact, this Court cannot determine whether or not the zoning decision is supported by substantial evidence; this Court is not a finder of facts, and its review of the evidence would be for the sole purpose of determining if the evidence supported the BZA's findings; in the absence of findings, such a review cannot occur.

Id. at 18-19.

[6] In an affidavit filed with the court on December 15, 2023, Laura Gilbert stated that her duties included “supervising the sending of notices for any matters to be heard before the [BZA].” Id. at 103. Gilbert stated:

5.  On July 19, 2023, I received an email from [Attorney Kolbus], attorney for the Department, requesting a Notice to Appear and Show Cause be sent to Maria Calderon via regular mail at both addresses listed on said notice.

6.  Upon reviewing said Notice to Appear and Show Cause, I observed that the second address listed contained a typographical error in the zip code; said address read as follows:

814 E JeffersonSt Goshen, IN 56528

7.  I emailed [Attorney Kolbus] on July 19, 2023 to advise of the typographical error in the aforementioned zip code for the address. I then received an email from [Attorney Kolbus] on July 19, 2023 with a “corrected copy” of the Notice to Appear and Show Cause, again requesting it be sent via regular mail. Attached to this Affidavit as Exhibit 1 is the Notice to Appear and Show Cause I received via email from [Attorney Kolbus] on July 19, 2023 following my email concerning the typographical error.

8.  Upon receipt of the attached Exhibit 1 from [Attorney Kolbus], I then typed out the respective address on the envelope with the correct zip code – 46528 – and mailed the Notice to Appear and Show Cause, which was identical to the attached Exhibit 1.[2]

9.  The Notice to Appear and Show Cause, with the corrected zip code, was personally mailed by me, via regular mail, on July 19, 2023, to the following respective addresses:

10. Neither mailing of the Notice to Appear and Show Cause sent by me on July 19, 2023 was returned to the Department by the United States Postal Service as being undeliverable.

Id. at 103-104.

[7] In an affidavit filed on February 19, 2024, Jacquelyn Ramirez stated that she was Calderon's daughter and that her father, Agustin Ramirez, “is the proprietor of the automobile repair business at 814 E. Jefferson Street in Goshen, Indiana, and he is also the proprietor of the automobile storage facility at 58027 Riley Avenue in Elkhart[,] Indiana.” Id. at 109. She stated, “[u]ntil about a year ago and for several years before that, I was employed by my father's businesses, and one of my responsibilities was to handle the mail that came to the business at 814 E. Jefferson Street in Goshen, Indiana,” “[t]here is no mail receptacle at 58027 Riley Avenue in Elkhart, Indiana,” “[d]uring the past year ․ my father would ask me to come to the business at 814 E. Jefferson Street in Goshen, Indiana, to review and translate for him the contents of important pieces of mail, mail that appeared to be from governmental offices, for example,” and “[a]t no time in July or August of 2023 did I see the [Notice].” Id. at 109-110.

[8] In his affidavit, Agustin Ramirez stated that he is the proprietor of an automobile repair business at 814 E. Jefferson Street in Goshen and that “[a]t no time in July or August of 2023 did I see the [Notice].” Id. at 112. In her affidavit, Calderon stated that she was the owner of the Real Estate and that “[a]t no time in July or August of 2023 did I see the [Notice].” Id. at 106. In an affidavit, Calderon's counsel stated “I submitted a public records request to the staff of the [Department],” “[a]mong the papers provided to me ․ was a Notice to Appear and Show Cause a copy which has been labeled Plaintiff's Exhibit A and attached hereto,”³ and “I have reviewed the copy of the Notice to Appear and Show Cause showing a correction in manuscript of the zip code for the 814 E. Jefferson St. address which is attached as Exhibit l to the Affidavit of Laura Gilbert filed herein on December 15, 2023; such a corrected copy was not included among the papers provided to me by the staff of the [Department] in response to my request for a complete copy of documents relating to Case # SUP-0231-2016.” Id. at 115-116. The parties filed briefs, and the court held a hearing in December 2024.

[9] On April 7, 2025, the trial court issued an Order on Petition for Judicial Review. With respect to notice, the court found that, while an initial notice reflected an incorrect zip code, the record reflects that a corrected notice was sent. It stated that it “takes at face value the affidavits of Agustin Ramirez and Jacquelyn Ramirez, which state that neither saw a notice from the BZA.” Id. at 13. The court stated “[t]he BZA had previously used the address provided to communicate successfully with Calderon,” “[t]here was no reason that the BZA should have anticipated that Calderon would provide an address without having a proper mail receptacle,” “the mailed notice was not returned to the BZA as undeliverable,” and “the Court concludes that the BZA acted in a manner calculated to give reasonable notice to Calderon.” Id. The court further found that, while “Calderon is correct that there is no separate document formally identifying findings of fact,” “[t]he record presented in this case was detailed” and “[t]he sum of the evidentiary materials provided, including the transcript of the August 17, 2023, hearing, provide a more than adequate basis for judicial review.” Id. at 14. The court affirmed the decision of the BZA.

Discussion

[10] Calderon argues that (A) she did not receive adequate notice of the August 17, 2023 hearing; and (B) the BZA did not enter written findings as required by statute.

A. Notice

[11] Calderon argues “[t]he affidavits submitted to the trial court regarding notice in this case, raise a question about the adequacy of the notice afforded [her].” Appellant's Brief at 32. She argues that, when asked to produce a copy of the complete file, “the staff included a copy of the Notice to Appear and Show Cause with the wrong zip code for the Jefferson Street property, but not a copy of the corrected [Notice] with the handwritten change in the first digit of the zip code.” Id. at 34. She asserts, “[a]lso, there is the odd statement in Laura Gilbert's affidavit that neither of the mailings were returned to the Department as undeliverable – odd because there is no mail receptacle at the Riley Street address, and the policy of the United States Postal Service is to return mail addressed to a facility where there is no mail receptacle.” Id. Calderon states that, when first class mail is not returned to the sender, it is reasonable to infer that the mail was received by the intended recipient. Id. at 35 (citing Ind. Land Tr. Co. v. Investment Properties, LLC, 155 N.E.3d 1177, 1189 (Ind. 2006)). She argues, “[h]owever, the trial court said it was taking at face value the affidavits of Agustin Ramirez and Jacquelyn Ramirez, which state that neither saw a notice from the BZA” and “[s]o we have a reasonable inference that the notice was received, direct evidence that it was not, and two versions of the notice, one with an incorrect zip code for the Jefferson Street address and another with a corrected zip code for the Jefferson Street address.” Id.

[12] The Due Process Clause of the Fourteenth Amendment requires the government to provide “notice and opportunity for hearing appropriate to the nature of the case.” Ind. Land Tr. Co., 5 N.E.3d at 1184 (citing Jones v. Flowers, 547 U.S. 220, 223, 126 S. Ct. 1708, 1712 (2006)). “Actual notice” is not required by due process. Id. (citing Jones, 547 U.S. at 225, 126 S. Ct. at 1713). Rather, due process requires the government to provide “notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and to afford them an opportunity to present their objections.” Id. (citing Jones, 547 U.S. at 225, 126 S. Ct. at 1713-1714).

[13] The record establishes that the Notice was sent to both the Elkhart Address and the Goshen Address. While the zip code for the address in Goshen on the notice initially sent by Attorney Kolbus to Gilbert and later provided to Calderon's counsel by the Department was an incorrect zip code, Gilbert stated that she noticed the mistake, that the zip code was corrected, and that the Notice was sent to the Goshen Address, with the correct zip code, and the Elkhart Address. Although Calderon's daughter stated there was no mail receptacle at the Elkhart Address, the copies of the Notice sent to that address and the Goshen Address were not returned as undeliverable. The Notice sent to both addresses provided the date, time, and location of the August 17, 2023 hearing, the alleged violations, and Calderon's right to appear and present evidence and argument. Calderon acknowledged in her Petition that “notice mailed to [her] at 814 E. Jefferson St, Goshen, IN 46528 would have complied with the BZA's rules regarding notice.” Appellant's Appendix Volume II at 18. Based on the record, we conclude that the BZA provided “notice reasonably calculated, under all the circumstances, to apprise” Calderon of the pendency of the action and “to afford [her] an opportunity to present [her] objections.” See Ind. Land Tr. Co., 155 N.E.3d at 1184. See also In re 2020 Madison Cnty. Tax Sale, 218 N.E.3d 1274, 1280-1281 (Ind. 2023) (“Neither the certified mail nor the first-class mail was returned to Savvy IN as undelivered․ [S]ince none of the mailed notice letters were returned to Savvy IN marked undeliverable, Savvy IN was not required to take additional reasonable steps․ And because the Constitution does not require further actions when notice letters are not returned undeliverable, ․ Savvy IN's actions meet the federal constitutional threshold under the Fourteenth Amendment.”) (internal quotations omitted), reh'g denied, cert. denied, 145 S. Ct. 143 (2024). We find no due process violation.

B. No Written Findings

[14] When we review the BZA's action, we apply the same standard as the trial court. Riverside Meadows I, LLC v. City of Jeffersonville, Ind. Bd. of Zoning Appeals, 72 N.E.3d 534, 538 (Ind. Ct. App. 2017). We may not reverse the BZA's decision unless an error of law is demonstrated. Id. Neither may we substitute our judgment for that of the BZA unless the appellant demonstrates illegality in the BZA's action. Id. We may not try the facts de novo or substitute our judgment for that of the BZA, nor may we reweigh the evidence or reassess the credibility of the witnesses. Id. Instead, we must accept the facts as found by the BZA. Id. However, we conduct a de novo review of any questions of law decided by BZA. Id.

[15] Calderon argues the BZA did not make written findings as required by Ind. Code § 36-7-4-915. She states “the BZA made an oral finding that there had been ‘a violation of the commitment and [sic] imposed by the BZA.’ ” Appellant's Brief at 24 (citing Appellant's Appendix Volume II at 101). She argues “[t]his was a conclusion of law, but there were no findings of basic fact that led the BZA to reach this conclusion, and there were no written findings of fact at all as required by Ind. Code § 36-7-4-915.” Id. She maintains that, “[m]oreover, there is no finding of ultimate fact stating the BZA's reason for selecting revocation of the Special Use Permit (if that is what the BZA intended when it voted to rescind the Commitment) as opposed to some lesser sanction for the unspecified violation.” Id. With respect to the evidence, Calderon argues that the photographs “[f]or the most part ․ show vehicles in various conditions parked outside the fence of the auto salvage business” but did not show the vehicles “were being stored there,” “that any non-operable motor vehicles or motor vehicle parts were being wrecked outside the fenced area,” or that “parts were being salvaged from a non-operable motor vehicle outside the fenced area or that any of these salvage business activities was using an entrance other than the Riley Street entrance.” Id. at 28. She maintains that, “[t]aken together, the representations made by Ms. Haarer and Mr. Wilkey and the photographs do not prove that there was auto salvage business ․ being conducted in violation of the Commitment.” Id.

[16] The BZA “concedes there is no separate written document entitled ‘Findings of Fact’ issued by it following the August 17, 2023, hearing.” Appellee's Brief at 16. It argues that “[t]he minutes are part of the Board Record” and “[t]he Board Record also included the evidentiary materials submitted during the August 17, 2023, hearing, as well as the transcript of said hearing.” Id. It asserts, “[t]hus, in the context of full judicial review of the BZA's decision, the trial court was, and this court will be, able to examine the minutes and record and determine if the BZA's decision is supported by substantial evidence.” Id. The BZA also states, “should the Court find that no written findings of fact were made [such] that the record herein was insufficient to permit judicial review, the proper action by this court would be to remand to the BZA for entry of findings, not an entirely new hearing ․” Id. at 17.

[17] Calderon and the BZA cite Ind. Code § 36-7-4-915, which provides:

The board of zoning appeals shall keep minutes of its proceedings and record the vote on all actions taken. All minutes and records shall be filed in the office of the board and are public records. The board shall in all cases heard by it make written findings of fact.

(Emphasis added).

[18] In Riverside Meadows, this Court addressed whether certain findings of fact entered by the BZA were sufficient to permit judicial review. 72 N.E.3d at 535. This Court noted that Ind. Code § 36-7-4-915 provides “[t]he board shall in all cases heard by it make written findings of fact” and held “[t]his statute's use of the word ‘shall’ is mandatory and places a duty on the BZA to enter findings of fact.” Id. at 539 (citing Habig v. Harker, 447 N.E.2d 1114, 1116 (Ind. Ct. App. 1983) (“[I]t is a fundamental requirement that boards of zoning appeals in all cases set out written findings of fact in support of their decisions, Ind. Code § 36-7-4-915, so that courts may intelligently review the board's decision without speculation as to its factual basis.”)). This Court held:

The BZA argues that the statute simply requires “written findings of fact,” not specific written findings of fact, and that its bare-bones “findings” satisfy this requirement. In support of its argument, the BZA cites Long v. Bd. of Zoning Appeals for City of Indianapolis, 134 Ind. App. 97, 99, 182 N.E.2d 790, 791 (1962), which held that, absent any reference to required findings in the applicable statute, special findings of fact were not required.

However, our supreme court has since held that:

For reasons which exist independently of the statute, the Board is required to set out findings of fact which support those determinations. The major reason for this is to make possible an adequate judicial review of the administrative decision․ These facts should be found specially and not generally. The findings must be specific enough to enable the court to review intelligently the Commission's decision.

Carlton v. Bd. of Zoning Appeals of City of Indianapolis, 252 Ind. 56, 64, 245 N.E.2d 337, 343 (1969) (emphasis added) (citations and internal quotations omitted). This requirement has since been repeated by this Court. See Columbus Bd. of Zoning Appeals v. Wetherald, 605 N.E.2d 208, 211 (Ind. Ct. App. 1992); State ex rel. Newton v. Bd. of Sch. Trustees of Metro. Sch. Dist. of Wabash, 404 N.E.2d 47, 48-49 (Ind. Ct. App. 1980); Bridge v. Bd. of Zoning Appeals of City of Ft. Wayne, 180 Ind. App. 149, 152, 387 N.E.2d 99, 101 (1979).

Indeed, we have held that these written findings are necessary to ensure adequate judicial review of administrative decisions. Holmes v. Bd. of Zoning Appeals of Jasper Cty., 634 N.E.2d 522, 525 (Ind. Ct. App. 1994). Thus, the BZA's findings must be tailored to address the specific facts presented to the Board, and the Board must enter both specific findings of fact and ultimate findings, or determinations. Wastewater One, LLC v. Floyd Cty. Bd. of Zoning Appeals, 947 N.E.2d 1040, 1051 (Ind. Ct. App. 2011) (citing Network Towers, LLC v. Bd. of Zoning Appeals of LaPorte Cnty., 770 N.E.2d 837, 844 (Ind. Ct. App. 2002)). Accordingly, if the BZA's findings are merely a general replication of the requirements of the ordinance at issue, they are insufficient to support the BZA's decision. Id. (citing Metro. Bd. of Zoning Appeals, Div. II, Marion Cty. v. Gunn, 477 N.E.2d 289, 300 (Ind. Ct. App. 1985)).

Here, the BZA's findings of fact are nothing more than a recitation of the statutory language and an indication of how the members of the BZA voted on whether these statutory requirements had been met․ [T]he BZA's “findings” are nothing of the sort required to permit adequate judicial review of the BZA's decisions. See Carlton, 252 Ind. at 62-63, 245 N.E.2d 337, 342-343 (holding that board's findings were insufficient where they merely repeated language of relevant statute and rejecting claim that voting forms of the members of the board, which also simply mirrored the language of the relevant statute without specific findings, were “findings” sufficient to permit judicial review); Wastewater One, 947 N.E.2d at 1051 (citing Gunn, 477 N.E.2d at 300) (noting that findings containing mere repetition of the language of the ordinance are insufficient to permit judicial review).

The BZA argues that the minutes of the BZA's hearing were “incorporated into the findings of fact and sufficiently support the BZA's written findings.” First, we see no provision in the BZA's “findings” that incorporates the minutes of the BZA's hearing on this matter. Moreover, the “findings” as set forth in the minutes of the BZA again simply mirror the language of the relevant statute and ordinance. The rest of the minutes contain summaries of the testimonies and arguments of the parties for and against Riverside's request. Again, this is insufficient to permit judicial review of the reasons for the BZA's ultimate decision. We therefore conclude that the findings entered by the BZA in the present case are insufficient to permit adequate judicial review of BZA's decisions.

However, our conclusion that the BZA's findings were insufficient does not entitle Riverside to a new hearing. The proper remedy in the absence of adequate factual findings is remand to the board to enter findings of fact in support of its conclusion. Gary Bd. of Zoning Appeals v. Eldridge, 774 N.E.2d 579, 583 (Ind. Ct. App. 2002). We therefore reverse the judgment of the trial court and remand this case to the BZA with instructions to enter specific findings, within forty-five days of the date this opinion is certified, tailored to address the specific facts presented to the BZA, in support of its decision to deny Riverside's request for a use variance.

Id. at 539-540 (citations to record omitted).

[19] Here, the BZA made no written findings whatsoever. The requirement in Ind. Code § 36-7-4-915 that the BZA make written findings is mandatory. Id. at 539. Further, the BZA was required to make findings “tailored to address the specific facts presented” and to enter “both specific findings of fact and ultimate findings, or determinations.” See id. The BZA did not issue findings regarding the evidence it found credible, the actions which it found constituted violations of or deviations from the Commitment, or the reasons for its determination that the deviations were significant enough to warrant rescission of the special use permit. To the extent the BZA notes the “Board Record” is included in the appendix, we observe that the minutes for the August 17, 2023 hearing merely summarize the proceeding before the BZA including the statements of Haarer and Wilkey and the votes of the members of the BZA. This summary is insufficient to permit judicial review of the reasons for the BZA's ultimate decision. See id. 540 (minutes of BZA hearing containing summary of proceeding is insufficient to permit judicial review of reasons for BZA's ultimate decision). Further, the transcript does not reflect that the BZA made any findings regarding Haarer and Wilkey's statements, the photographs, or the activities it found violated the terms of the Commitment. The failure of the BZA to make written findings as required by Ind. Code § 36-7-4-915 prevents adequate judicial review of its decision.

[20] For the foregoing reasons, we reverse the judgment of the trial court and remand this case to the BZA with instructions to enter specific findings, within forty-five days of the date this opinion is certified and without further hearing, tailored to address the specific facts presented to the BZA, in support of its decision.

[21] Reversed and remanded.

FOOTNOTES

1.   The parties’ appendices include “Powerpoint Slides” which include photographs taken in July and August of 2023. Appellant's Appendix Volume I at 2; Appellee's Appendix Volume I at 2.

2.   The Notice attached as Exhibit 1 includes a zip code of “46528” for the Goshen Address. Appellant's Appendix Volume II at 105. The first digit of the zip code, “4”, is handwritten, but clear. See id.

3.   The notice attached as Exhibit A includes a zip code of “56528” for the Goshen Address. Appellant's Appendix Volume II at 117.

Brown, Judge.

Felix, J., and Scheele, J., concur.