Ashley v. City of Bedford

• Decision Date: 28 June 1974
• Docket Number: No. 1-973A159,1-973A159
• Parties: Morris ASHLEY, Appellant (Defendnat Below), v. CITY OF BEDFORD, Appellee (Plaintiff Below).
• Court: Indiana Appellate Court

Page 863

312 N.E.2d 863

160 Ind.App. 634

Morris ASHLEY, Appellant (Defendnat Below), v. CITY OF BEDFORD, Appellee (Plaintiff Below).

No. 1-973A159.

Court of Appeals of Indiana, First District.

June 28, 1974.

J. Grant Moore, Bedford, William K. Steger of Bunger, Harrell & Robertson, Bloomington, for appellant.

Gordon R. Henderson of Henderson & Henderson, Bedford, for appellee.

LYBROOK, Judge.

On a complaint filed by plaintiff-appellee City, defendant-appellant Ashley was found guilty of operating a business on certain residential property in violation of the applicable zoning ordinance contained in the city municipal code. The following issues are presented for review in this appeal:

1. Whether the judgment of the court is contrary to the evidence and, therefore, contrary to law.

2. Whether the court erred in overruling Ashley's objection to the admission of certain evidence.

Ashley does not contest the fact that on May 28, 1969, the date specified in the complaint, he was operating a wrecker service and automobile repair business at his residence. Neither does he contest the fact that this business use does not conform to the residential zoning classification applicable to his property.

The basis of Ashley's defense at trial, and the grounds upon which his primary argument in this appeal rests, is that the business operation is a valid non-conforming use which he has continually conducted from a time prior to May 2, 1961, the effective date of the zoning ordinance allegedly violated.

I.

Proof of a pre-existing non-conforming use constitutes a defense to an action alleging the violation of a zoning ordinance, assuming that such use has not been terminated under the terms of the ordinance. The burden of proving the nonconforming use rests upon the party asserting its existence, in this case Ashley. See, O'Banion v. State ex rel. Shively (1969), 146 Ind.App. 223, 253 N.E.2d 739.

The judgment of the trial court indicates a finding negative to Ashley on this issue. Hence, he may not challenge the sufficiency of the evidence to sustain the court's judgment with respect to this issue. In such an instance, our review is limited to the question of whether the verdict is contrary to law. Reversal will result in favor of the party with the burden of proof only where that party appears entitled to a verdict under undisputed evidence. We are, of course, limited to considering only that evidence most favorable to the appellee, together with all reasonable inferences which may be drawn therefrom. Only where the evidence is without conflict and can lead to but one conclusion, and the trial court has reached an opposite conclusion, may the decision be set aside on the ground that it is contrary to law. State Farm Life Ins. Co. v. Spidel (1964), 246 Ind. 458, 202 N.E.2d 886; Dyer Construction Co., Inc. v. Ellas Construction Co., Inc. (1972), Ind.App., 287 N.E.2d 262.

Several persons testified as to the character of the activities at Ashley's residence at or prior to the time of trial. As many as six to eight automobiles were on Ashley's premises at any given time. Many of these automobiles were wrecked and had been towed to the premises. Repair work was observed being performed on many of these autos. Witnesses also observed such activities as the pulling of motors and the dismantling of wrecked automobiles. These activities were carried out both inside and outside of a four car garage which Ashley had constructed on his premises during 1963; and were accompanied by noise such as hammering and the racing of engines, many without mufflers. Neighbors testified that the bulk of the activity was carried on in the evening hours and on weekends and that noise often continued into the early morning hours.

At one point during the presentation of the plaintiff's evidence, defense counsel offered to stipulate that a business was being conducted on Ashley's premises from 1961 to the time of trial. Plaintiff, however, was not willing to concede that any business operations were being conducted prior to the spring of 1963. Ashley's counsel then offered to stipulate that business activities had been conducted on the premises since 1963.

Defendant Ashley testified that in addition of other employment, he had been self-employed in the automobile repair business since 1947 and had owned wreckers since 1955. He further testified that general automobile repair work had been performed at his residence prior to 1961, when the zoning ordinance allegedly violated had become effective.

There is uncontradicted testimony that on at least four occasions prior to 1961, Ashley performed repairs at his residence on other persons' vehicles. There is other testimony from persons who saw automobiles parked on Ashley's premises. However not all of these persons actually saw repair work being performed. Viewed most favorably to the appellee, this evidence does not tend to establish that Ashley was, prior to May of 1961, engaged in a business operation of a magnitude and character such as that which was being conducted at the time of trial.

An alleged non-conforming use must be shown to have existed on the date the relevant zoning classification becomes effective. It is not sufficient to show that such a use merely existed at some time prior to that date. O'Banion v. State ex rel. Shively, supra.

In the case at bar, the zoning ordinance which the court found Ashley to be violating became effective on May 2, 1961.

One of plaintiff's witnesses who became a resident of the neighborhood in August of 1961, described Ashley's premises at that time. The only building on the premises was Ashley's home, and the rear of the property was planted as a garden. The witness further testified that he did not notice any business activities pertaining to motor vehicles until the spring of 1963, when an alley...