Posted by: Patricia Salkin | January 6, 2008

Indiana Court of Appeals Upholds Zoning Board’s Interpretation of “Public Right-of-Way” as Reasonable

Neighbors challenged the decision of the Board of Zoning Appeals that upheld a building permit that was based on whether the lot in question was located on a public right-of-way. The applicable zoning ordinance provides, in part, that the “‘front lot line’ shall be that lot line of a lot, which is parallel to an existing or dedicated street, public way, or a lake or watercourse. The owner of a cornor lot may elect either street lot line as a ‘front lot line.’”  

At issue was the whether the road upon which the lot is situated, which is not a dedicated street, is a “public way” or “public right-of-way” neither of which is defined in the ordinance.  The Board determined that the road, known as Glenwood Beach Trail, is an easement since property owners have an ingress and egress easement along the road. Black’s Law Dictionary defines “easement” as a “right-of-way” and the American Heritage Dictionary defines “public” as a “group of people sharing a common interest.”  The Court noted that the owners of property along Glenwood Beach Trail certainly have a common interest in using it to gain access to their homes. Therefore, the Court concluded, in a limited sense, the homeowners along the road fit within the accepted definition of “public,” and that the Board’s use of the term “easement” is reasonable and consistent with dictionary definitions for “right-of-way” and “public.”

Schmoll v. Dines, 2007 WL 4394905 (Ind. App. 12/18/2007). 

The unpublished opinion can also be accessed at:  www.in.gov/judiciary/opinions/pdf/12180701tac.pdf


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