Bird v. Delaware Muncie Metropolitan Plan Commission

• Decision Date: 17 February 1981
• Docket Number: No. 2-480,2-480
• Citation: 416 N.E.2d 482
• Parties: Clarence V. BIRD and Roseadean Bird, Defendants-Appellants, v. DELAWARE MUNCIE METROPOLITAN PLAN COMMISSION, Plaintiff-Appellee. A 85.
• Court: Indiana Appellate Court

Page 482

416 N.E.2d 482

Clarence V. BIRD and Roseadean Bird, Defendants-Appellants, v. DELAWARE MUNCIE METROPOLITAN PLAN COMMISSION, Plaintiff-Appellee.

No. 2-480 A 85.

Court of Appeals of Indiana, First District.

Feb. 17, 1981.

Sidney E. McClellan, Muncie, for defendants-appellants.

Wayne J. Lennington, Muncie, for plaintiff-appellee.

NEAL, Presiding Judge.

STATEMENT OF THE CASE

Defendant-appellants Clarence V. Bird and Roseadean Bird (Birds) appeal a judgment in favor of plaintiff-appellee Delaware-Muncie Metropolitan Plan Commission (Commission) entered by the Delaware Superior Court ordering a mandatory injunction against Birds requiring them to remove illegal structures erected in violation of the 1973 Comprehensive Zoning Ordinance of Delaware County, State of Indiana.

We affirm.

STATEMENT OF THE FACTS

The facts most favorable to the judgment are: sometime between 1969 and 1971 Birds relocated two structures upon their property of less than two acres which bordered the right of way fence to U.S. Highway 35. ¹ Birds had never obtained an improvement location permit (building permit) to erect these buildings upon their property. They set back one structure twenty-four feet and the other thirty-three feet from the highway right of way fence. Both structures remained unoccupied and in unliveable condition from the time of their relocation until the Spring of 1978. ²

On December 11, 1973, the Delaware County Comprehensive Zoning Ordinance (1973 Ordinance) was enacted. The ordinance applied to all unincorporated territory of Delaware County, including Center Township where Birds' above-described property was located. Under the ordinance, Commission is authorized to develop all planning and zoning in Delaware County. Birds knew in 1973 that their property had been reclassified under the provisions of the 1973 ordinance as a limited industrial zone. Mr. Bird had visited the Delaware County Building Commissioner's office sometime in 1973 to obtain a permit for another house, but had neglected to obtain a permit for the two structures already erected upon his property. Furthermore, while Mr. Bird was at the building commissioner's office, he inspected the 1973 ordinance noting that his property had been rezoned limited industrial and that residential dwellings were a permitted use in such zone. On April 30, 1974, the Administrative Zoning Officer (Zoning Officer) to the Commission issued two building permits to birds. Both applications for the permits inaccurately described the dimensions of Birds' property as being five and one-half acres per structure which meant that the two structures were located upon an eleven acre tract. Actually Birds' real estate amounts to less than two acres. Mr. Bird testified that the zoning officer came out to his house and filled out the permit applications in Mr. Bird's presence. Mr. Bird denied having filled out the application himself and knowing that five and one-half acres was given to describe the size of his property surrounding each structure. ³ On March 14, 1975, the zoning officer sent Birds a letter notifying them that their 1974 permits had been revoked because the two structures did not comply with the 1973 Ordinance, i. e. Birds' property was zoned limited industrial which includes performance standards requiring that no building be erected closer than one hundred feet to a dwelling; Birds' structures must be set back one hundred feet from the highway; and storage of certain materials in the structures violating the 1973 ordinance. Birds were given until April 30, 1975, to remove the two structures. Following revocation of their 1974 building permits, Birds never obtained any other building permits from Delaware County.

On May 3, 1978, the zoning officer placed a stop work order upon Birds' property. Birds ignored this order and continued working on the two structures up until two weeks before the trial of this cause.

At the close of the evidence, the trial court issued findings of fact and conclusions of law which read as follows:

"1. That the Defendants, Clarence V. Bird and Rosadean Bird, between 1969 and 1971 moved or relocated two houses upon the real estate owned by them and described in Plaintiff's Complaint.

2. That said houses remained upon said real estate in an uninhabitable and unoccupied condition until after the passage of the Delaware County Comprehensive Zoning Ordinance on December 11, 1973.

3. That in April, 1974 the Defendants applied for and received an improvement location permit for the relocation and remodeling of said houses which said permits were later revoked.

4. That said houses remained uninhabited until early in 1978 when the defendants repaired and moved into one house and the other house has never been occupied.

5. That in May of 1978, the Zoning Administrator of Delaware County placed stop work orders upon the premises and the Defendants disregarded the same and continued work upon said houses.

6. That the real estate of the defendants is zoned Limited Industrial under the 1973 ordinance and is located along and adjacent to U.S. Highway # 35 a major highway and said buildings are located closer than 100 feet to said highway.

7. That the 1973 zoning ordinance requires that no structure in said zoning shall be located within 100 feet of a major State or County highway and that the structures of the Defendants are in violation of said zoning ordinance.

8. That said structures do not constitute a legal non conforming use in that no use of the structures was in existence at the time of the passage of the December 11, 1973, zoning ordinance.

9. That the structures of the Defendants do not qualify under Article VIII Section 1 of the 1973 zoning ordinance because the Defendants did not obtain a building permit under the prior law, did not commence construction within 90 days and did not diligently pursue the same to completion.

10. That the structures of the Defendants are in violation of the 1973 zoning ordinance and are illegal uses subject to being enjoined by this Court.

11. That pursuant to I.C. 18-7-5-95 and Article XXXII Section 3, H of the 1973 zoning ordinance the Plaintiff is entitled to have issued against the Defendants a mandatory injunction requiring the removal of said illegal structures."

ISSUES

Birds present the following issues for our review:

I. Whether the trial court erred in overruling Birds' motion for a change of venue from the county;

II. Whether the trial court's verdict is supported by sufficient evidence; and

III. Whether the trial court's decision is contrary to law.

DISCUSSION AND DECISION

Issue I. Change of Venue

Birds contend that they were denied a fair trial by the trial court's overruling of their motion for a change of venue from the county. They argue in their motion to correct errors it is mandatory that the trial court grant their venue motion which was timely filed and to refrain from taking any further action in the cause, citing City of Fort Wayne v. State Ex Rel. Hoagland, (1976) 168 Ind.App. 262, 342 N.E.2d 865, as supporting authority. Birds correctly state the general rule that in civil actions once a proper and timely motion for change of venue is filed, the trial court is divested of jurisdiction except to grant the change of venue. Teegarden v. Sattison, (1980) Ind.App., 404 N.E.2d 1163; State Ex Rel. Yockey v. Superior Court of Marion County, (1974) 261 Ind. 504, 307 N.E.2d 70; Anderson v. Sell, (1971) 150 Ind.App. 262, 276 N.E.2d 194; Ind.Rules of Procedure, Trial Rule 76. However, Commission correctly points out in its brief that specific statutory authority disallows a change of venue from the county in cases of this kind as set forth in Ind.Code 18-7-5-95 which reads:

"The plan commission, the board of zoning appeals or any designated enforcement official may institute a suit for injunction in the circuit court of the county to restrain an individual or a governmental unit from violating the provisions of this act or of an ordinance enacted pursuant to its terms. The plan commission or the board of zoning appeals may also institute a suit for a mandatory injunction directing an individual or a governmental unit to remove a structure erected in violation of the provisions of this act or of an ordinance enacted pursuant to its terms. If the plan commission or the board of zoning appeals is successful in its suit, the respondent shall bear the costs of the action.

A change of venue from the county shall not be granted in such a case." (Emphasis added.)

It is clear from the express language of the statute that Birds are not permitted a change of venue from the county. The trial court committed no error.

Issues II and III. Sufficiency of the evidence; Contrary to Law

When reviewing a case in which the judge has rendered findings of fact, this court will not set aside the judgment unless it is clearly erroneous. Lawrence v. Ball State University Board of Trustees, (1980) Ind.App., 400 N.E.2d 179; Ind.Rules of Procedure, Trial Rule 52. The trial court's judgment will be upheld if it is sustainable on any legal theory; in addition, the Court of Appeals will not reweigh the evidence nor resolve questions of credibility of witnesses, but rather will affirm if there is sufficient evidence of probative value to sustain the decision of the trial court. Rees v. Heyser, (1980) Ind.App., 404 N.E.2d 1183.

Birds' answer to the complaint filed by Commission consisted of the following statement, contained in a letter of the shown date:

"4-24-78

Metropolitan Plan Comm.

Gentlemen:

In regard to complaint namely cause # 2S-78/250 Ct. # 2. I would state zoning laws that went into effect 12-11-1973 do not apply to these buildings as they were there prior to this date above.

My bond # 41593 was released on 2-22-1971 After Property management sec. Div. of land Acq. of State Highway Comm. of Ind. Personnel of above office found an inspection that moving of those bldgs. had been...