Ailes v. Decatur County Area Planning Com'n

Decision Date28 July 1982
Docket NumberNo. 1-381A98,1-381A98
Citation437 N.E.2d 1375
PartiesRalph D. AILES and Elizabeth J. Ailes, Appellants (Defendants Below), v. DECATUR COUNTY AREA PLANNING COMMISSION and Decatur County Board of Zoning Appeals, Appellees (Plaintiffs Below). and Melvin T. ROUSE, Appellant (Defendant Below), v. RIPLEY COUNTY AREA PLAN COMMISSION, Appellee (Plaintiff Below).
CourtIndiana Appellate Court

Jack R. Shields, Batesville, for appellants Ralph D. Ailes, Elizabeth J. Ailes and Melvin T. Rouse.

George R. Watts, Watts & Polanski, P. C., Greensburg, for appellees Decatur County Area Planning Commission and Decatur County Bd. of Zoning Appeals.

Stephen T. Taylor, Eaton & Taylor, Versailles, for appellee Ripley County Area Plan Com'n.

MILLER, Presiding Judge.

This is a consolidated appeal challenging the constitutionality of amortization provisions in the zoning ordinances of two different counties, both of which require the discontinuance of pre-existing lawful nonconforming uses of real estate upon the expiration of a specific number of years. After injunctions were issued against appellants (Ralph and Elizabeth Ailes and Rouse) enjoining them from operating junkyards at their residences, both the Aileses and Rouse brought independent motions for relief from their respective judgments, pursuant to Ind.Rules of Procedure, Trial Rule 60(B), alleging the applicable amortization provision constituted an unconstitutional taking of property and an unreasonable exercise of police power. Both motions were denied, and the parties appeal raising only the constitutional issue for our consideration. 1 We affirm.


Both appeals come before us on agreed statements of the records, pursuant to Ind.Rules of Procedure, Appellate Rule 7.3. The facts in both causes are undisputed. The Aileses' real estate, on which they also resided, had been used as a junkyard and automobile wrecking yard since 1967 or 1968, before the effective date of the Decatur County zoning ordinance enacted in 1975 and continued uninterrupted until the date of suit in 1979. In 1975, Decatur County zoned an area, which included the Aileses' residence, for one and two family residences only and prohibited the maintenance of junkyards 2 or automobile wrecking "3.23. Any nonconforming use of land not involving any structure, ... may be continued for a period not to exceed three years after enactment of the ordinance, whereupon such nonconforming use shall cease or structure shall be removed.

                yards 3 within that district.  The Aileses do not dispute the use of their real estate in the current manner is proscribed by the ordinance, and the trial court so found. 4  The trial court also found the use of the real estate constituted a lawful nonconforming use which should have been abated within three years of the ordinance's enactment in 1975 under the following amortization provisions

3.24. Any building or structure devoted to a nonconforming use with a fair market value of less than $500.00 as determined by the Board of Appeals, may be continued for a period not to exceed three years after enactment of the ordinance, whereupon such nonconforming use shall cease and thereafter such building or structure shall be removed or changed to a conforming use."

On September 18, 1979 the trial court therefore issued an injunction against the use of the property as a junkyard and ordered removal of the offending materials. The Aileses moved for relief from the judgment challenging the constitutionality of the amortization provisions. The trial court overruled their motion. On appeal, both parties state there is no issue of fact but only an issue of law which questions whether an amortization provision eliminating a "nonconforming, pre-existing, uninterrupted, otherwise lawful use" of real estate is a taking of property without due process and an unreasonable exercise of police power.

Rouse's appeal presents a similar record. Rouse began using his residential real estate as a junkyard in approximately 1953. In 1970, Ripley County zoned the district including Rouse's real estate for medium density single and two-family residences, where junkyards 5 are not permitted. Rouse does not challenge the trial court's finding that he is maintaining a junkyard in violation of the ordinance, nor does he challenge the applicability of the following amortization provision contained in Section 3.5 of the ordinance:

"The lawful use of a building or premises existing at the time of passage of the ordinance, may be continued although such use does not conform to all the provisions of this ordinance or amendments to this ordinance except as hereinafter provided.


(g) Any nonconforming open use of land shall be discontinued within (5) years On August 8, 1978 the trial court issued an injunction ordering removal of all junked equipment and automobiles from Rouse's real estate. Rouse moved for relief from the judgment alleging the amortization provision was unconstitutional. The trial court's subsequent finding that the challenged provision was not an unconstitutional taking of property without due process of law is the only question raised in Rouse's appeal.

from the date of passage of this ordinance." 6


The Aileses and Rouse challenge the respective amortization provision as an unconstitutional taking of property and as an unreasonable exercise of police power. It is well established, however, that reasonable zoning regulations are a proper exercise of police power and are not unconstitutional merely because they regulate the uses of private property. Town of Homecroft v. Macbeth, (1958) 238 Ind. 57, 148 N.E.2d 563; Field v. Area Plan Commission of Grant County, (1981) Ind.App., 421 N.E.2d 1132; Metropolitan Board of Zoning Appeals v. Sheehan Construction Co., (1974) 160 Ind.App. 520, 313 N.E.2d 78. The ultimate purpose of zoning regulations is to confine certain classes of uses and structures to specific areas, Jacobs v. Mishawaka Board of Zoning Appeals, (1979) Ind.App., 395 N.E.2d 834, thereby insuring and promoting the public's health, safety, convenience and welfare. Board of Zoning Appeals of New Albany v. Koehler, (1963) 244 Ind. 504, 194 N.E.2d 49. It is the express goal of zoning legislation to encourage enactment of zoning ordinances "to the end that highway systems be more carefully planned, that new communities grow only with adequate street, utility, health, educational and recreational facilities; that the needs of agriculture, industry, and business be recognized in future growth, [and] that residential areas provide healthy surroundings for family life ...." (Emphasis added.) Ind.Code 18-7-4-1 et seq., repealed by Acts 1974, P.L. 75, Sec. 3; 1978 P.L. 95, Sec. 4, 1979 P.L. 178 Sec. 164 and substantially reenacted at Ind.Code 36-7-4-201. To accomplish these objectives, a zoning regulation may control the use of land and structures in a particular locality, but it must be within the limitations imposed by statutory and constitutional provisions, and it must have a real and substantial relation to the public health, safety, or general welfare. Field v. Area Plan Commission of Grant County, supra, at 1138 quoting 30 I.L.E. Zoning Sec. 8 at 647 (1960); accord 101 C.J.S. Zoning Sec. 54 (1958).

In the instant case, we are specifically concerned with the zoning of residential areas and the regulation of prior nonconforming uses. It is well settled that zoning of family residential areas bears a substantial relationship to the public safety and general welfare. Field v. Area Plan Commission of Grant County, supra; Antrim v. Hohlt, (1952) 122 Ind.App. 681, 108 N.E.2d 197. Exclusion of commercial and industrial uses of land and structures in residential areas ensures the quiet of natural surroundings and vegetation, and decreases the risk of various annoyances from competing usages. Antrim v. Hohlt, supra. We have also previously recognized the inherent rationale for excluding junkyards specifically from residential zones:

"[The maintenance of a junkyard in a residential area] may well destroy the value of [the] neighbors' property, provide an attractive nuisance for neighborhood children, lure uninvited scavengers, provide cover and breeding grounds for rodents and insects, and generally constitute a threat to the health, safety and welfare of neighborhood residents."

Field v. Area Plan Commission of Grant County, supra, at 1139, fn. 6. Junked automobiles are particularly recognized as presenting a considerable health and safety hazard. As explained in Lachapelle v. Goffstown, (1967) 107 N.H. 485, 225 A.2d 624 (upholding an amortization provision applied to a junkyard in a residential zone), they tend to still have gasoline in their tanks,children are attracted to them, they may fall if disturbed and they tend to create neighborhood blight. Consequently, the state has a reasonable and legitimate interest in zoning areas for solely residential use and in excluding junkyards from residential areas. Field v. Area Plan Commission of Grant County, supra; Antrim v. Hohlt, supra.

Under many ordinances, however, proof of a prior nonconforming use 7 constitutes a defense to an action alleging a violation of a zoning ordinance. Generally, zoning ordinances have no retroactive effect and work no disturbance with existing property uses. Dandy Co., Inc. v. Civil City of South Bend, (1980) Ind.App., 401 N.E.2d 1380. Thus, the right of a municipality to enact zoning restrictions is subject to vested property interests, Jacobs v. Mishawaka Board of Zoning Appeals, supra, and consequently, as emphasized by the Aileses and Rouse, an ordinance prohibiting any continuation of a pre-existing lawful use is unconstitutional as a taking of property without due process of law and as an unreasonable exercise of police power. Id.

Generally, however, nonconforming uses are not favored since they impede the attainment of the legitimate purpose of zoning ordinances to...

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3 cases
  • Mayor and Council of New Castle v. Rollins Outdoor Advertising, Inc.
    • United States
    • United States State Supreme Court of Delaware
    • November 21, 1983
    ...610 P.2d 407 (1980); Village of Gurnee v. Miller, Ill.App., 69 Ill.App.2d 248, 215 N.E.2d 829 (1966); Ailes v. Decatur County Area Planning Commission, Ind.App., 437 N.E.2d 1375 (1982); Harris v. Mayor and City Council of Baltimore, Md.Spec.App., 35 Md.App. 572, 371 A.2d 706 (1977); Eutaw E......
  • Consolidated City of Indianapolis v. Cutshaw
    • United States
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    • January 3, 1983
    ...approval of the constitutionality of amortizing non-conforming uses by means of zoning ordinances. Ailes v. Decatur County Area Planning Com'n., (1982) Ind.App., 437 N.E.2d 1375 (transfer pending). However, in order to avoid a conflict with the Fourteenth Amendment, significant conditions m......
  • Ailes v. Decatur County Area Planning Com'n, 583S171
    • United States
    • Indiana Supreme Court
    • May 12, 1983
    ...(1959) 240 Ind. 212, 162 N.E.2d 449; Jacobs v. Mishawaka Board of Zoning Appeals, supra." Ailes v. Decatur County Area Planning Com'n, (1982) Ind.App., 437 N.E.2d 1375, 1379-80 [footnotes I would deny transfer and affirm the judgment of the trial court. ...

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