Antrim v. Hohlt
| Decision Date | 23 October 1952 |
| Docket Number | No. 18243,18243 |
| Citation | 122 Ind.App. 681,108 N.E.2d 197 |
| Parties | ANTRIM et al. v. HOHLT et al. |
| Court | Indiana Appellate Court |
Thomas M. Scanlon, Indianapolis, Lewis C. Bose, Indianapolis, Barnes, Hickam, Pantzer & Boyd, Indianapolis, of counsel, for appellants.
Louis A. Weiland, Thomas E. Garvin, Indianapolis, for appellees E. F. Hohlt, Elizabeth Convey, Roy K. Coats, Charlotte L. Coats, Mary H. Lesh, Perry W. Lesh and Helen L. Zerfas.
Edward H. Knight, Corp. Counsel, Michael B. Reddington, City Atty., Adolph G. Emhardt, Asst. City Atty., Indianapolis, for appellees.
This is an appeal from a judgment of the Superior Court of Marion County in an action brought by appellants for a writ of certiorari to review a decision of the Board of Zoning Appeals of the City of Indianapolis. The Board of Zoning Appeals granted a variance from the zoning ordinance of the city to authorize the construction of an 83-unit apartment project in an area restricted by the zoning ordinance of the city for the construction of single and two-family dwellings. The appellants owned houses adjacent to the land for which the variance was granted, and were the petitioners in the action in the Superior Court of Marion County.
The appellees in this action are one E. F. Hohlt who asked for the variance, the Board of Zoning Appeals, its chairman, the City of Indianapolis, and the persons who own the real estate for which the variance was granted.
Issues were joined on appellants' petition for certiorari in the court below, and the return of such writ filed by the Board of Zoning Appeals. The Superior Court determined that the action of the Board of Zoning Appeals was proper and affirmed the decision of the zoning board granting the variance.
The appellants filed a motion for a new trial which was overruled and this appeal followed.
The single error assigned for reversal is the action of the court in overruling appellants' motion for a new trial, the grounds of which motion were that the decision of the court is not sustained by sufficient evidence and is contrary to law.
From the record it appears that the appellee, E. F. Hohlt, filed his request for permission to construct apartment buildings having 83 units with accessory off-street parking on the premises known as 3650-3668 Central Avenue. Permission to construct such buildings was denied by the building commissioner on the ground that the same would be in violation of the building ordinance. Following the ruling of the building commissioner, Hohlt filed an application for variance from the requirements of the zoning ordinance, which set forth that the three apartment buildings in question were to be constructed upon a lot 400 feet by 302 feet, fronting on Central Avenue, the buildings being each of three floors of brick veneer construction and making provision for such off-street parking for sixty automobiles.
At the hearing before the board, minutes of the hearing were entered in substance as follows: The board gave consideration to the petition of E. F. Hohlt requesting variance of use, area and rear yard requirements to permit the construction of apartment buildings having 83 units, in accordance with submitted plans, and with accessory off-street parking. Mr. Louis Weiland, attorney, appeared to represent the petition and submitted copies of 'pertinent data' to the board members and interested persons appearing, and displayed a sketch of the proposed project. A large group of remonstrators appeared voicing their objections to the proposed introduction of an apartment house into the neighborhood, stating that it would change the character of the district, that it would detract from the value of the existing residential properties, that the parking area would be a source of annoyance to the Washington Boulevard property owners, and that the proposed use would over-tax the present sewer, which even now overflows. Mr. C. Titus Everett, attorney, appeared as representative of Mr. David Sluss, whose property adjoins the premises involved on the west, and voiced objections. Mr. Antrim, 3620 Central Avenue, voiced his objections, stating that, regardless of the area provided for off-street parking, many cars would be parked in front of the building, which would increase the traffic hazard. A statement of disapproval was presented and filed from Mrs. A. E. Baker, 417 E. 37th Street. 'Affidavits of publication and serving of notices having been filed and made a part of the case, the Board, being fully advised in the matter, finds that this proposed project would not be detrimental to the public welfare and would not substantially and permanently injure the appropriate use of neighboring property.' The board thereupon approved the petition.
The assignment of error presents, among others, the legal proposition whether the variance sought was such a variance as required an amendment of the master zoning plan by the City Council.
The sections of the zoning ordinance in question under which the present variance must be justified, and the sections which permit the board to relax the provisions of the zoning ordinance are sections 22 and 23. Under Section 22, the Board may grant a variance when: First, there are practical difficulties or unnecessary hardships in the way of carrying out the strict letter of the ordinance: Second, the variance is in harmony with the general purpose and intent so that the public health, safety and general welfare may be secured and substantial justice done. Under Section 23, the board may grant the exception from the district regulation when the following facts exist: First, such action is in harmony with the general purpose and intent of the regulations: Second, the exception is in general keeping with and appropriate to the use and buildings authorized in any district or existing on neighboring property. The law is well settled that the board's power to grant variances or exceptions is strictly limited to the situations provided by statute and in the ordinance. O'Connor v. Overall Laundry, Inc., 1934, 98 Ind.App. 29, 183 N.E. 134; Anderson Lumber & Supply Co. v. Fletcher, 1950, 228 Ind. 383, 89 N.E.2d 449.
The record in this case does not present a case under the hardship provisions of Section 22. Section 23 has the provision which requires that the variance and exception be in general keeping with and appropriate to the uses or buildings authorized in any district or existing on neighboring property. Under both sections, any variance is required to be in harmony with the general spirit and intent of the ordinance. Any variance which so changes the character of an area so that it is not in harmony with the general purpose and intent of the zoning ordinance must be effectd by an amendment of the zoning ordinance of which the master plan is a part....
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Strange v. Board of Zoning Appeals of Shelby County, 1-481A143
...837; 3 E.C. Yokley, Zoning Law and Practice § 21-7 (1979). Neither may a variance be used for purposes of rezoning. Antrim v. Hohlt, (1952) 122 Ind.App. 681, 108 N.E.2d 197; LeMond, Where is Indiana Zoning Heading? 8 Ind.L.Rev. 976 (1975); 3 E.C. Yokley, supra, § 21-9. And we disagree with ......
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Field v. Area Plan Commission of Grant County, Ind.
...single family residential areas as bearing a substantial relationship to the public safety and general welfare. In Antrim v. Hohlt (1952) 122 Ind.App. 681, 108 N.E.2d 197, the Court denied a variance to construct an apartment building in a single family residential zone on the ground that i......
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Nelson v. Board of Zoning Appeals of City of Indianapolis, 18997
...whatever hardship there may have been was self-created by the petitioner. Appellants rely heavily on the case of Antrim v. Hohlt, 1952, 122 Ind.App. 681, 108 N.E.2d 197, hereinafter referred to as the Antrim Appellees contend that the instant case is an exception to the Antrim case and can ......
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Burrell v. Lake County Plan Com'n
...Storage, however, that the validity of the subject provision was ever in issue.Similarly, the Burrells cite to Antrim v. Hohlt (1952), 122 Ind.App. 681, 108 N.E.2d 197, but that case does not resolve the issue before us. Antrim involved a board of zoning appeals that granted a variance from......