# Wildwood Park Community Ass'n v. Fort Wayne City Plan Commission > Indiana Court of Appeals · October 25, 1979 · 182 Ind. App. 578 URL: https://www.frixlaw.com/law-library/cases/9744162 ## Case - **Full name:** WILDWOOD PARK COMMUNITY ASSOCIATION Et Al., Appellants (Petitioners Below), v. the FORT WAYNE CITY PLAN COMMISSION Et Al., Appellees (Respondents Below) - **Court:** Indiana Court of Appeals - **Decided:** October 25, 1979 - **Citations:** 182 Ind. App. 578; 72 Ind. Dec. 169; 396 N.E.2d 678; 1979 Ind. App. LEXIS 1398 - **Precedential status:** Published - **Opinion:** Dissent by Hoffman - **Judges:** Staton, Garrard, Hoffman - **Cited by:** 14 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9744162 ## Opinion text *692 HOFFMAN, Judge, dissenting. I respectfully dissent. A person aggrieved by a decision of the Plan Commission may seek review of that decision by filing a petition for a writ of certiorari with the clerk of the circuit or superior court in the county in which the affected land is located. IC 1971, 18-7-5-57 (Burns Code Ed.); IC 1971, 18-7-5-87 (Burns Code Ed.). It is then the duty of the court to order the Commission to show cause, within twenty days, why a writ should not be issued. IC 1971, 18-7-5-89 (Burns Code Ed.). If the Commission fails to show cause, the court may then issue a writ directed to the Commission. The writ shall prescribe a time, not less than ten days from the date of its issuance, within which the Commission shall make its return. Id. In a return verified by its secretary, the Commission must “concisely set forth such facts and data as may be pertinent and present material to show the grounds of the decision appealed from.” IC 1971, 18-7 — 5— 91 (Burns Code Ed.). The court may review the decision of the Commission without further pleading. It may, if necessary, hear evidence to supplement the return, but the review shall not be de novo. Id. ■ In the instant case I cannot subscribe to the view that the issue of Wildwood’s standing to seek review was not timely raised. The developers’ “Motion for Order Denying Issuance of Writ of Certiorari and Motion to Dismiss,” quoted in the majority opinion, properly raised the issue by alleging that Wildwood fell outside the definition of “aggrieved” person because it had no “personal or pecuniary” interest which was affected by the Commission’s order. See: Metro. Development Comm. v. Cullison et al. (1972), 151 Ind.App. 48 , at 50-51, 277 N.E.2d 905, at 906-907 ; City of Hammond v. Bd. of Zoning Appeals (1972), 152 Ind.App. 480, at 488-489 , 284 N.E.2d 118 , at 125. This motion, filed in response to Wild-wood’s petition, alleged that cause why a writ of certiorari should not issue (IC 1971, 18-7-5-89) did indeed exist, to-wit: lack of standing to seek review. Nothing more was necessary to place the issue directly before the court. Mention is made by the majority of the fact that the standing issue was raised only by the developers and not by the Commission. It has been held, however, that the manner in which the issuance of a writ of certiorari is challenged is immaterial. Horton & Sons, Inc. v. Bd. of Zon. App., etc., et al. (1956), 235 Ind. 510 , 135 N.E.2d 243 , citing IC 1971, 18-7-5-92 (Burns Code Ed.). Accordingly, it is of no significance whatever that the matter was not raised by the Commission. I would, therefore, uphold the trial court’s determination that Wildwood was not aggrieved by the Commission’s order. Although the court initially determined that Wildwood was entitled to challenge the Commission’s action by way of a certiorari petition, its later finding that Wildwood lacked the requisite interest to maintain such a proceeding was not fatally undermined by that earlier ruling, for it is well-settled that the court had inherent power to change that ruling at any time prior to the entry of judgment. See: McLaughlin v. American Oil Co. (1979), Ind.App., 391 N.E.2d 864 ; Metro. Develp. Comm. et al. v. Newlon et al. (1973), 156 Ind.App. 464 , 297 N.E.2d 483 . The case of Bd. of Zon. Ap. of City of Indpls. v. Filis (1965), 137 Ind.App. 217 , 206 N.E.2d 628 , is cited by the majority for the following proposition: “The respondents’ failure to contest the veracity of the allegations made in Wild-wood’s petition acted as an admission of the facts contained therein.” The court in Filis held that “the effect of a demurrer to a petition for a writ of certio-rari amounts to an admission of all facts well pleaded.” 206 N.E.2d at 631 . This decision on a method of proceeding not now in use (the demurrer) is, in my view, inapplicable to the case at bar. Furthermore, the majority’s statement that a mere failure to respond amounts to an admission of the facts contained in the petition is patently contrary to two relevant statutory provisions: IC 1971, 18-7-5-89, which provides *693 that the effect of the Commission’s failure to show cause is that a writ will issue; and IC 1971, 18-7-5-92, which empowers the court, after the return to the writ is made, to decide the sufficiency of the allegations contained in the petition without further pleading. That the majority’s quotation from Stout v. Mercer et al. (1974), 160 Ind.App. 454 , 312 N.E.2d 515 , is also misleading in the context of this case cannot be doubted. The issue addressed in that case was whether a person who otherwise met the criteria of Metro. Development Comm. v. Cullison et al., supra, was entitled, as a person aggrieved, to seek review of a commission order even though he had not appeared before the commission to oppose the order. The Stout decision did not hold that a person’s status as an adjoining or surrounding landowner was, in and of itself, sufficient to qualify him as an aggrieved party. Rather, Stout held, quoting from the Cullison decision, that a person must have been denied a personal or property right, have had a burden or obligation imposed upon him or have had a legal interest diminished or enlarged by the commission’s action in order to be “aggrieved” by that action. For all these reasons I am unable to join the majority opinion. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9744162. Public record. Not legal advice.