Porter County Board of Zoning Appeals v. Bolde

STATON, J.

OPINION ON PETITION FOR REHEARING

The Porter County Board of Zoning Appeals (Board) appealed the trial court’s judgment reversing the Board’s grant of a special exception. In a published opinion dated December 5, 1988, we reversed the trial court, holding that res judicata did not bar an application for a special exception subsequent to an application for a use variance which was denied. 530 N.E.2d 1212. Bolde petitions for rehearing on the ground that we failed to address the issue of collateral estoppel as it applies to the public welfare element common to both a use variance and a special exception. We deny the petition for rehearing with opinion to address this issue.

The collateral estoppel, or “issue preclusion,” branch of res judicata is applicable when a particular issue is adjudicated and then is put into issue in a subsequent suit on a different cause of action between the same parties or those in privity with them. The former adjudication of the issue is held to bind the parties who are privies of the subsequent suit. State of Indiana, Indiana State Highway Commission v. Speidel (1979), 181 Ind.App. 448, 453, 392 N.E.2d 1172, 1175.

As noted in our opinion, to grant a use variance or a special exception, the Board must find that the use will serve and not be injurious to the public welfare. 530 N.E.2d at 1215. Bolde argues that when the Board initially denied the application for use variance, it impliedly found that the use would not serve the public welfare. Therefore, that finding should be binding in the subsequent application for a special exception. However, it is not clear from the record that the Board denied the use variance because it would be injurious to the public welfare. The minutes of the Board meeting reflect that one member was concerned with permitting a commercial development in a residential area while another member voted to deny because a bait building had not been built on the property as required. We cannot conclude that the Board made a finding, by implication or otherwise, that the use would be injurious to the public welfare so that further consideration of the issue is barred in the subsequent application.

Petition for rehearing denied.

HOFFMAN, J., and BUCHANAN, J., concur.