Juan Vega v. City of Hammond and City of Hammond Board of Public Works and Safety ( 2017 )

FILED
Jul 07 2017, 5:32 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEES
P. Jeffrey Schlesinger John M. McCrum
Merrillville, Indiana Robert J. Feldt
Kevin T. McNamara
Eichhorn & Eichhorn, LLP
Hammond, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Juan Vega, July 7, 2017
Appellant-Plaintiff, Court of Appeals Case No.
45A03-1605-MI-1067
v. Appeal from the Lake Superior
Court
City of Hammond and City of The Honorable Calvin D.
Hammond Board of Public Hawkins, Judge
Works and Safety, Trial Court Cause No.
Appellees-Defendants. 45D02-1507-MI-9
Brown, Judge.
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[1] Juan Vega appeals the trial court’s order and ruling on his motion to correct
errors in favor of the City of Hammond and the City of Hammond Board of
Public Works and Safety (the “Board,” and collectively with the City of
Hammond, the “Appellees”). Vega raises three issues, one of which we find
dispositive and revise and restate as whether the court abused its discretion in
granting the Appellees’ motion for directed verdict. We reverse and remand.
Facts and Procedural History
[2] Vega owns 4839 Elm Street, located in Hammond, Indiana. In 2012, Vega
permitted Matt Saliga, an inspector for Hammond, to inspect the home, and
afterward, on November 9, 2012, the City issued a Notice of Violation to Vega
identifying various violations, such as the presence of unsafe conditions and the
absence of proper building permits. The property was found to contain an
unsafe second floor apartment lacking proper dwelling unit fire protection
separation and proper fire resistance rating. The notice also stated that the
property was contrary to Hammond zoning laws as to the number of units
permitted in the district in question.1 The Notice stated that Vega must repair
1
The City’s Notice of Violation sent to Vega on November 9, 2012, stated the following:
Your property at 4839 Elm St. has been inspected and found to be an UNSAFE BUILDING in
violation of Indiana Code 36-7-9 et seq. and Sections 96, 150, 151, 156, and 158 of the
Hammond City Code and International Residential [Code].
This building is deemed unsafe based on the following:
2nd Floor Apartment:
International Residential Code §317.7, Dwelling Unit Separation, specifically dwelling units
shall be separated from each other by wall and / or floor assemblies having not less than 1 –
hour fire-resistance rating when tested in accordance with ASTM E 119.
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or demolish the building to bring it into compliance within thirty days and that
failure to do so would result in the Building Commissioner instituting legal
proceedings against him.
[3] A hearing before the Board on the Notice of Violation was originally set for
November 29, 2012, but the hearing was continued multiple times, first to
January 17, 2013, and then to March 14, 2013, as well as May 30, 2013, and
August 8, 2013. At that point, the matter “kind of fell into the void for a while
and nobody remembered anything about it.”2 Transcript at 121. Eventually, it
was set for a hearing before the Board on September 18, 2014, and Vega and his
counsel requested a continuance due to a scheduling conflict and because “there
is incomplete discovery in this cause,” which was granted. Appellant’s
Appendix Volume 2 at 51. On November 13, 2014, Saliga and Kris Kantar,
Hammond Municipal Code §150.003 Building Permit Fees, specifically any person desiring to
work on a building must obtain a building permit.
Hammond Municipal Code §150.017 Contractor License, specifically no permit for plumbing
work was issued and no license was obtained to do the work.
Hammond Municipal Code §151.16, et seq., Electrical Inspection Department, specifically no
permit was obtained to do the work.
Hammond Municipal Code §151.34, et seq., License Required/Displayed, specifically no
license was obtained to do the work.
Hammond Municipal Code §158.01 Zoning, specifically pursuant to the City of Hammond
Zoning Code, Ordinance o. 8514, Section 25.20, no request was made to the Appellees of
Zoning to convert attic into two apartments.
Hammond Municipal Code §156.10 Plumbing, specifically no license was obtained by the
State’s Plumbing Commissioner to do the work.
Hammond Municipal Code §156.20 Plumbing, specifically no plumbing permit was obtain [sic]
to do the work.
Appellant’s Appendix Volume 2 at 20-21.
2
Kris Kantar, the City’s counsel, made this observation at the Board’s November 13, 2014 hearing.
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who was the City’s counsel, appeared before the Board and presented the City’s
case, in which Saliga tendered his inspection file including findings,
photographs and permit research for 4839 Elm Street. Neither Vega nor his
counsel appeared at the hearing. The Board unanimously approved “the
Findings regarding . . . 4839 Elm . . . .” Appellees’ Appendix at 122.
[4] On December 10, 2014, Vega by counsel moved the Board to grant relief from
the order of November 13, 2014, asserting that neither Vega nor counsel had
been advised that the matter was set for hearing, and the Board vacated the
order and reset a hearing for February 26, 2015. Vega’s counsel moved for a
continuance of that hearing, and the matter was reset on the agreed date of
April 30, 2015. “During that time [Vega] and Counsel for [Vega] were to
obtain a second inspection and see if any repairs could be made to correct the
issues with the property.” Id. at 43.
[5] On April 29, 2015, Vega’s counsel sent a motion to reassign date and
accompanying letter via fax to Kantar, the letter stating that Saliga had not yet
performed a second inspection of the property. Id. at 29. The letter noted that
counsel had not heard from Saliga “since the communications in early March,”
that he had “put in a call to him Tuesday (4/28) but missed him by a couple-of-
minutes,” and that he hoped that Saliga’s “schedule will permit us to coordinate
something in May and, hopefully, have a ‘sit-down’ in June to see if it’s
resolvable.” Id. The motion to reassign date also indicated that, if word was
not received sooner, counsel would appear on April 30, 2015 “between 10-
10:30 a.m. instead of 9:00 a.m. due to a medical appointment that counsel
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needs to attend and anticipates will be completed at approximately 10:00 a.m.”
and requested that the matter be set for a hearing on the June calendar. Id. at
28.
[6] The Board held the hearing on April 30, 2015, and neither Vega nor counsel
appeared. At the hearing, Kantar observed that Vega had requested a
continuance, and the matter “has been continued at regular intervals for over
two years” and “doesn’t ever seem to be going anywhere.” Transcript at 122-
123.3 Saliga stated that “[h]e’s really made no attempt to schedule this.” Id. at
123.4 Kantar recommended that the Board give Saliga a week to prepare an
order, that the Board sign it, and that Vega could then “appeal it if he wants to.
Enough is enough.” Id. The Board by motion approved that course of action.
[7] On May 6, 2015, Vega’s counsel filed a motion for relief and request for hearing
stating that Kantar agreed in their conversation on or about February 25, 2015,
that she would communicate with Saliga and that Vega’s counsel should follow
up with an email to Saliga, that counsel sent an email on March 3, 2015, and a
fax on March 4, 2015, copying Kantar, that counsel did not receive a reply, and
that counsel moved for a continuance as the hearing date approached. The
letter to Saliga was attached to the motion as Exhibit 1. The motion also
indicated that, on the date of the hearing, following his medical procedure and
3
The transcript from the judicial review hearing contains a transcription of the Board hearings, as recordings
of those hearings were played for the court at the review hearing.
4
The transcript identifies the speaker as “Male Voice 1.”
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while en route to City Hall, counsel was advised that the meeting had
adjourned. On May 7, 2015, the Board entered its Finding of Fact and
Decision ordering Vega to remove the second floor apartment, specifically
stating as follows:
[I]n the present case, the illegal second floor apartment is to be
removed. During no point in this property’s two and a half year
history, has it ever been demonstrated that the second floor
apartment is legal, safe and compliant with Zoning.
In addition, the record of the hearing is devoid of any evidence
that the upstairs apartment was ever lawfully converted into an
apartment. In order to be a lawful non conforming use, the use
must have “lawfully existed prior to the enactment of a zoning
ordinance.” The property owner of 4839 Elm have [sic] failed to
show, by any evidence, that this conversion was ever performed
legally.
Based on the evidence, and law, the 2nd Floor Apartment at 4839
Elm cannot lawfully be occupied in its present condition. Should
proper zoning approval be obtained, and the property brought
into compliance with all current building and fire codes, this
decision could be reconsidered by the Appellees, but at the
present moment under the present circumstance, the declaration
of the Inspections Department that the property is uninhabitable
is AFFIRMED.
Appellant’s Appendix Volume 2 at 47. That same day, the City issued its
Findings and Order noting that the Board found that no building permits were
applied for or issued for a second-floor apartment as required by the Hammond
Municipal Code and that no fire separation between units exists in violation of
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the International Building Code on fire separation and ordering that “[t]he 2nd
floor apartment must be removed, the property converted back to a single
family home and all work must be performed by licensed contractor(s) in the
city of Hammond.” Id. at 48.
[8] On May 11, 2015, Vega filed a complaint for judicial review pursuant to Ind.
Code § 36-7-9-8 in the Lake Superior Court and attached Exhibits A-K, which
included a copy of the Board’s Findings of Fact and Decision and the City’s
Findings-Order of May 7, 2015. On June 12, 2015, Vega’s counsel conducted a
deposition of Saliga in which Saliga acknowledged that he “misspoke” at the
April 30, 2015 hearing of the Board when he indicated that he had not been
contacted to set up an inspection because at that time he had forgotten about
the letter he received from Vega’s counsel. Plaintiff’s Exhibit 6 at 38.
[9] On March 8, 2016, the court held a judicial review hearing and the parties
tendered and the court admitted Joint Exhibit 1, which is a collection of video
recordings of the Board meetings in question, including two segments of the
November 13, 2014 meeting, as well as the hearings of April 30, 2015, and May
7, 2015. Each segment was played for the court. Following the presentation of
the recordings, Vega’s counsel offered and the court admitted Plaintiff’s Group
Exhibit 1, which is a copy of Exhibits A through K attached to the complaint
for judicial review. Vega’s counsel then offered and the court admitted
Plaintiff’s Group Exhibit 2 containing the minutes of the Board hearings from
November 13, 2014, April 30, 2015, and May 7, 2015. Next, Vega’s counsel
offered Plaintiff’s Group Exhibit 3 containing excerpts from a deposition of
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Saliga taken on July 24, 2013, noting that if opposing counsel wished to offer
additional portions “it’s certainly his free game.” Transcript at 126. The
Appellees’ counsel noted that it was the first he’d seen of it “in this form in
partial deposition,” and objected on that basis, and the court admitted the
exhibit and noted that the Appellees would have the opportunity “to make any
appropriate responses to it by way of other portions of the deposition.” Id. at
127. Vega’s counsel next offered Plaintiff’s Group Exhibit 4, which included
five exhibits received during Saliga’s June 12, 2015 deposition, and the court
admitted the exhibit. Vega’s counsel then offered Plaintiff’s Exhibit 5
containing excerpts of the Saliga deposition of June 12, 2015, before
withdrawing it and instead offering the entire deposition as Plaintiff’s Exhibit 6,
which the court admitted. The court then asked Appellees’ counsel “You don’t
have an objection to the whole dep being admitted, do you?” and counsel
replied: “My objection is he’s attempting to offer evidence that wasn’t before
the Board. I made that objection. I can keep making that objection if you
want.” Id. at 134-135. The court responded as follows:
And I think based upon -- what I’m going to basically do, I’ll just
let you folks know now. After I hear all the evidence, I will give
you ten days after the hearing to submit your findings and
conclusions. The Court will consider that. So we can end that,
address every and any matter that you want to address.
Id. at 135. The court also admitted Plaintiff’s Exhibit 7 containing a permit
history, Plaintiff’s Exhibit 9, which is the Appellees’ Response to Vega’s
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Request for Admission, and Plaintiff’s Exhibit 10 containing the Appellees’
Answer to Vega’s Interrogatories.
[10] After the court admitted Plaintiff’s Exhibit 10, Vega rested and the court
recessed for lunch. When the hearing reconvened, the Appellees’ counsel
began as follows:
Your Honor, we would like to make a quick motion for directed
verdict. We think the plaintiff has the obligation to put the
record of the Board of Works hearings from November 13, 2014;
April 30th, 2015; May 7th, 2015, before the Court, and has failed
to do so. Has only put piecemeal documents in front of the
Court that were part of the Board’s record. We also don’t think
the plaintiff has met his burden to show the Findings are
arbitrary, capricious, et cetera.
There isn’t any dispute that the -- at least there hasn’t been any
evidence so far that the building is occupied, the two units
without proper fire separation, and that that’s a dangerous
condition. And there also isn’t any record that the Board’s
decision not to allow [Vega’s counsel] and Mr. Vega a ninth
continuance after two years of litigation that that Finding also
was arbitrary, capricious, et cetera.
Id. at 152-153. Vega’s counsel responded by asserting that he presented an
adequate record and that “the only inspection done by Mr. Saliga was in 2013”
and “[t]here was supposed to be an inspection before there was a hearing on the
merits.” Id. at 154-155. The court then granted the Appellees’ motion without
elaboration. Id. at 156.
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[11] The next day, the court entered a written order granting the Appellees’ motion,
which it termed a motion for judgment on the evidence, again without
explanation. Vega subsequently filed a motion to correct errors which was
denied.
Discussion
[12] The dispositive issue is whether the trial court abused its discretion in granting
the Appellees’ motion for directed verdict. At the outset we address an
argument raised by Vega in which he asserts that the Appellees’ motion was
made pursuant to Ind. Trial Rule 50, which is improper at a bench trial, that
accordingly “the court made no [] findings,” and that he “was unable to request
findings of fact since the trial court rendered judgment upon the incorrect rule
and thus inappropriately limited review by the Court of Appeals.” Appellant’s
Brief 10.
[13] The Indiana Supreme Court has noted that a court on appeal will address a trial
court’s ruling on a motion for directed verdict made at a bench trial as a Trial
Rule 41(B) motion for an involuntary dismissal. See Workman v. State, 716
N.E.2d 445, 447 (Ind. 1999) (noting that directed verdict motions made under
Ind. Trial Rule 50, “otherwise known as judgments on the evidence, [are] not
applicable to bench trials” and that the Court would “address the motion as a
Trial Rule 41(B) motion for an involuntary dismissal”). Ind. Trial Rule 41(B)
provides:
(B) Involuntary dismissal: Effect thereof. After the plaintiff or
party with the burden of proof upon an issue, in an action tried
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by the court without a jury, has completed the presentation of his
evidence thereon, the opposing party, without waiving his right
to offer evidence in the event the motion is not granted, may
move for a dismissal on the ground that upon the weight of the
evidence and the law there has been shown no right to relief.
The court as trier of the facts may then determine them and
render judgment against the plaintiff or may decline to render
any judgment until the close of all the evidence. If the court
renders judgment on the merits against the plaintiff or party with
the burden of proof, the court, when requested at the time of the
motion by either party shall make findings if, and as required by
Rule 52(A). Unless the court in its order for dismissal otherwise
specifies, a dismissal under this subdivision or subdivision (E) of
this rule and any dismissal not provided for in this rule, other
than a dismissal for lack of jurisdiction, operates as an
adjudication upon the merits.
[14] A court is required to enter findings when granting a motion for involuntary
dismissal under Ind. Trial Rule 41(B) only upon request at the time of the
motion by either party. The record reveals that Vega did not make a request for
findings. We therefore find any error by the trial court in granting the
Appellees’ motion based upon the wrong rule of trial procedure and not
entering findings to be waived. See Puckett v. Miller, 178 Ind. App. 174, 182-183,
381 N.E.2d 1087, 1092-1093 (1978) (noting that “The comments of the Civil
Code Study Commission with regards to TR 41(B) states, ‘This fulfills the
function of a motion for a directed verdict in a jury case (a motion for judgment
on the evidence under Rule 50). It will not modify present Indiana practice to any
degree[’]”) (footnote omitted).
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[15] “A Trial Rule 41 motion to dismiss tests the sufficiency of the plaintiff’s case in
chief.” Brown v. Guinn, 970 N.E.2d 192, 195 (Ind. Ct. App. 2012). “Our review
of the denial of the motion for involuntary dismissal is limited to an
examination of the evidence most favorable to the nonmoving party that was
presented prior to the filing of the motion.” Id.
[16] Vega asserts that the Appellees, in making their motion for directed verdict,
stated that he had the obligation to offer into evidence the entire administrative
record but that he “is unaware of any such requirement.” Appellant’s Brief at
10. He further argues in his reply brief that this is a misinterpretation of Kollar
v. Civil City of South Bend, 695 N.E.2d 616 (Ind. Ct. App. 1998), reh’g denied,
trans. denied. He contends that, even if he were charged with providing the
court with the full administrative record, he satisfied that requirement when he
tendered the video recordings of the relevant hearings in Joint Exhibit 1. He
points out that the court admitted into evidence a number of documentary
exhibits, including the entire deposition of Saliga as Plaintiff’s Exhibit 6, which
it did not have time to review when it granted the directed verdict at the close of
his case-in-chief, and argues that the court envisioned admitting the exhibits
and subsequently giving the parties ten days to submit findings and conclusions
but that it instead granted the directed verdict motion without reviewing those
exhibits. He also argues that he presented evidence that the City had agreed to
a re-inspection of his property by Saliga prior to a hearing on the merits, that
such inspection had not been performed despite the request of counsel, that the
Board’s ruling “appears to be based upon the delay rather than any merits of the
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Notice,” and that accordingly such ruling was arbitrary and capricious.
Appellant’s Brief at 9.
[17] The Appellees argue that “Vega was supposed to place the entire
Administrative Record of the Board before the trial Court so that the Trial
Court would be able to examine the documentary evidence as well as the
statements made at the various hearings, but he refused to do so.” Appellees’
Brief at 27. They assert that the Board’s decision is entitled to deference on
judicial review, and “[l]acking the entire Administrative Record . . . there [] was
no legitimate basis for the Trial Court to question the Board’s ruling . . . .” Id.
at 29.
[18] To the extent the Appellees’ motion was based upon the fact that Vega did not
enter into evidence the full administrative record, we observe that Vega filed the
complaint for judicial review pursuant to Ind. Code § 36-7-9-8, which provides
as follows:
(a) An action taken by the hearing authority under section 7(d),
7(e), or 9(d) of this chapter or a finding by the hearing authority
of abandonment under IC 36-7-37 is subject to review by the
circuit or superior court of the county in which the unsafe
premises are located, on request of:
(1) any person who has a substantial property interest in
the unsafe premises; or
(2) any person to whom that order or finding was issued.
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(b) A person requesting judicial review under this section must
file a verified complaint including the findings of fact and the
action taken by the hearing authority. The complaint must be
filed within ten (10) days after the date when the action was
taken.
(c) An appeal under this section is an action de novo. The court
may affirm, modify, or reverse the action taken by the hearing
authority.
[19] There is no dispute that Vega complied with Section 8’s requirements that he
file the complaint within ten days and that the complaint include the findings of
fact and the action taken by the hearing authority. Indeed, Vega’s complaint
contained twelve exhibits, and Exhibit H included the Board’s Findings of Fact
and Decision entered on May 7, 2015, as well as the City’s May 7, 2015
Findings-Order. Section 8 does not require that the complainant file the entire
administrative record with the circuit or superior court. Moreover, as
highlighted above at the hearing Vega introduced a number of exhibits,
including video recordings of all the relevant Board hearings, as well as
transcripts of those hearings, two depositions of Saliga and exhibits received
during Saliga’s deposition, and responses to a request for admission and
interrogatories.
[20] It appears that the Appellees’ motion is based upon a provision in Indiana’s
Administrative Orders and Procedures Act (“AOPA”), in which Ind. Code § 4-
21.5-5-13(a) requires that:
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Within thirty (30) days after the filing of the petition, or within
further time allowed by the court or by other law, the petitioner
shall transmit to the court the original or a certified copy of the
agency record for judicial review of the agency action, consisting
of:
(1) any agency documents expressing the agency action;
(2) other documents identified by the agency as having
been considered by it before its action and used as a basis
for its action; and
(3) any other material described in this article as the
agency record for the type of agency action at issue,
subject to this section.
Ind. Code § 4-21.5-2-0.1(a)(1) governs the application of AOPA and states that
it governs “all proceedings, and all proceedings for judicial review or civil
enforcement of agency action . . . .” (Emphasis added). An “agency” under
AOPA “means any officer, board, commission, department division, bureau, or
committee of state government that is responsible for any stage of a proceeding
under this article. . . .” (Emphasis added). The Board is not a state government
agency; rather, it is a works board defined in Ind. Code § 36-1-2-24(3). As such,
the Board is not governed by AOPA.
[21] This Court discussed “action de novo” judicial review, as called for in Ind.
Code § 36-7-9-8(c), in Kollar. As in this case, the Kollars appealed a demolition
order served by the municipal body, the South Bend City Enforcement
Division, which the trial court affirmed. 695 N.E.2d at 618-619. We discussed
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the standard of review applicable under Ind. Code § 36-7-9-8, in which the
Kollars asserted “that the words ‘action de novo’ require the trial court to
rehear the evidence and decide anew whether the demolition order was
reasonable.” Id. at 619. The Kollars argued that because the statute “does not
provide for the preparation of a transcript of the hearing officer’s proceedings”
and the record of the administrative proceedings “was not preserved, it is
necessary for the trial court to rehear the evidence and decide the issues anew.”
Id.
[22] We disagreed, observing that “[i]t is well established in Indiana law that the
term ‘de novo’ in statutes providing for judicial review of administrative orders
does not authorize a trial court to substitute its judgment for that of the agency
below.” Id. Citing separation of powers concerns, we held that the standard of
review to be applied is as follows:
A court reviewing under a de novo statutory direction may, to a
limited extent, weight the evidence supporting the finding of fact
by an administrative agency. But it may negate that finding only
if, based upon the evidence as a whole, the finding of fact was
(1) arbitrary,
(2) capricious,
(3) an abuse of discretion,
(4) unsupported by the evidence or
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(5) in excess of statutory authority.
Id. (quoting Uhlir v. Ritz, 255 Ind. 342, 345-346, 264 N.E.2d 312, 314 (1970)).
Also, “the trial court may not substitute its judgment for that of the agency
below as ‘the facts [are to be] determined but once.’” Id. at 619-620 (quoting
City of Mishawaka v. Stewart, 261 Ind. 670, 677, 310 N.E.2d 65, 69 (1974)). We
found that the absence of a transcript in that case did not require “a different
interpretation of ‘de novo,’” noting that “the Kollars had the burden to prove
that the demolition order was unreasonable” and “were responsible for the
presentation of evidence” and that “the supreme court has held that the trial
court may review an agency’s decision through either a ‘re-examination of the
evidence upon which the administrative agency acted, or by the original
reviewing court hearing evidence, depending upon the legislative scheme under
which the agency operates.’” Id. at 620 (quoting Warren v. Ind. Telephone Co.,
217 Ind. 93, 117, 26 N.E.2d 399, 409 (1940)). Thus, we concluded that “it was
appropriate for the trial court to rehear the evidence upon which the officer
below made its decision.” Id.
[23] Although it was Vega’s burden to prove that the Board’s action was arbitrary,
capricious, an abuse of discretion, unsupported by the evidence, or in excess of
statutory authority, and to present evidence, he was not required to produce the
entire administrative record. Rather, he was required to present the evidence
relevant to his theory of the case, the crux of which is that the Board’s decision
to order the demolition of the property before Saliga performed a re-inspection
was arbitrary and capricious. To the extent that the court granted the
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Appellees’ motion at the close of Vega’s case-in-chief because he did not present
the entire administrative record, it erred in doing so.
[24] The Appellees also argued in their motion that Vega did not present evidence to
dispute that the property located at 4839 Elm Street is an unsafe building in
violation of Ind. Code §§ 36-7-9 or that “the Board’s decision not to allow
[Vega’s counsel] and Mr. Vega a ninth continuance after two years of
litigation” was arbitrary or capricious. Transcript at 153. An administrative
decision is arbitrary and capricious only when it is willful and unreasonable,
without consideration or in disregard of the facts and circumstances of the case,
or without some basis which could lead a reasonable person to the same
conclusion. Fishburn v. Ind. Pub. Retirement Sys., 2 N.E.3d 814, 821 (Ind. Ct.
App. 2014), trans. denied.
[25] The record reveals that, following the initial action by the Board in November
2014 ordering demolition of 4839 Elm Street, Vega by counsel moved the
Board to grant relief, and it did so and reset a hearing for February 26, 2015.
That hearing was again reset by agreement between the parties for April 30,
2015, in order to give Saliga an opportunity to re-inspect the property prior to a
final hearing on the merits. In early March 2015, Vega’s counsel sent via email
and fax a letter to Saliga requesting to coordinate an inspection. The letter also
indicated that Vega’s counsel understood that Attorney Kantar would
communicate with Saliga for help setting up the inspection. As the April 30,
2015 hearing approached, Vega’s counsel requested another continuance,
noting that he had not heard from Saliga “since the communications in early
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March,” that he had “put in a call to him Tuesday (4/28) but missed him by a
couple-of-minutes,” and that he hoped that Saliga’s “schedule will permit us to
coordinate something in May and, hopefully, have a ‘sit-down’ in June to see if
it’s resolvable.” Appellant’s Appendix Volume 2 at 29.
[26] At the Board’s April 30, 2015 hearing, Kantar noted the requested continuance
and observed that the matter “has been continued at regular intervals for over
two years” and “doesn’t ever seem to be going anywhere.” Transcript at 122-
123. She recommended that Saliga prepare an order of demolition for the
Board to approve and that Vega could then “appeal it if he wants to. Enough is
enough.” Id. at 123. At the hearing, Saliga indicated to the Board that neither
Vega nor his counsel had made an attempt to schedule the re-inspection. At a
deposition conducted on June 12, 2015, however, Saliga admitted that he
“misspoke” at the hearing and that he had in fact received correspondence from
Vega’s counsel to which he did not respond and that he had forgotten about
that letter. Plaintiff’s Exhibit 6 at 38.
[27] On this record, and viewing the evidence most favorable to Vega, we conclude
that Vega has made a requisite showing that the Board’s order was made
without consideration or in disregard of the facts and circumstances of the case
and was therefore arbitrary and capricious and that the trial court erred in
dismissing Vega’s complaint for judicial review at the close of his case-in-chief.
At the very least, he has shown that both the Appellees and Vega agreed that a
re-inspection of the property was warranted prior to a decision on the merits
and that his counsel engaged Saliga to set up that inspection. Prior to the April
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30, 2015 hearing, Vega’s counsel asked for a continuance and proposed a short
timeline for completing the inspection and examining whether the matter was
resolvable prior to a final hearing, but this proposal was rejected at Kantar’s
recommendation. The dismissive attitude in taking final administrative action
based primarily on delay rather than the merits of whether the property should
be ordered demolished is exhibited by Kantar’s statement to the Board that
Vega could, following action by the Board, “appeal it if he wants to. Enough is
enough.” Transcript at 123. The court’s order of dismissal is reversed and the
matter remanded for further proceedings.
Conclusion
[28] For the foregoing reasons, we reverse the court’s order and remand for further
proceedings consistent with this opinion.
[29] Reversed and remanded.
Vaidik, C.J., and Bradford, J., concur.
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