Board of Zoning Appeals of Elkhart County v. New Testament Bible Church, Inc.
| Decision Date | 28 October 1980 |
| Docket Number | No. 3-379A87,3-379A87 |
| Parties | BOARD OF ZONING APPEALS OF ELKHART COUNTY, Airport Realty Corp., and Mishawaka Pilots Club, Inc., Defendants-Appellants, v. NEW TESTAMENT BIBLE CHURCH, INC., Plaintiff-Appellee. |
| Court | Indiana Appellate Court |
Robert J. Hepler, Larry A. Barkes, Hartzog, Barker, Hepler & Saunders, Goshen, for defendants-appellants.
John D. Ulmer, Yoder, Ainlay, Ulmer & Buckingham, Goshen, for plaintiff-appellee.
The appellants, the Board of Zoning Appeals of Elkhart County, the Airport Realty Corporation, and Mishawaka Pilots Club, Inc., appeal from a judgment of the Elkhart Superior Court ordering the Board to permit the appellee, the New Testament Bible Church, Inc., to construct a church activities building on certain property owned by the church. We affirm.
In 1974, the New Testament Bible Church petitioned the Board of Zoning Appeals of Elkhart County for permission to construct a church activities building on land it had recently purchased. The property is within an area designated as A1C (agricultural) zoning district and it is adjacent to a public use airport.
The Board held a series of hearings on the church request, at which a good deal of objection to the construction was heard. Heading the drive in opposition to the church were operators and patrons of the airport. They feared that if the church were built, within a short time church members would be leading a drive to close the airport as a noise nuisance to church activities. In addition to these complaints, the Board collected evidence that while the proposed structure would pose no threat to safe takeoffs and landings at the airport, the site had on at least two occasions been used for emergency landings. Further, there was concern expressed that because of a large number of both inexperienced pilots and antique aircraft using the airport, the church site would be less than safe. Finally, it was noted that because the peak use hours of the church and the airport would often coincide, there was at least the potential for traffic congestion in the area.
At the conclusion of the hearings, the Board denied the church application, citing noise and safety considerations as controlling. The church appealed the Board's decision, and in reviewing it on a writ of certiorari, the trial court reversed, declaring the Board decision illegal in three respects:
1. The Board had no right to either hear or deny the application under the applicable zoning ordinance. Instead, the trial court ruled the ordinance mandated approval, assuming the proposed church structure met certain other regulatory standards.
2. The denial violated the 1st and 14th Amendments of the U.S. Constitution, as an unconstitutional exclusion of a church from an agricultural area.
3. The denial violated the 5th and 14th Amendments of the U.S. Constitution, and Article 1 of the Indiana Constitution, because it represented a "taking without compensation," rather than a zoning decision.
We affirm the trial court's decision, relying on its first rationale in finding illegality. We therefore need not consider the second and third prongs of the trial court's analysis. We believe the New Testament Bible Church, Inc., under the applicable zoning ordinance, was entitled to construct a church activities building, and the Board had no authority to deny it that privilege.
The Board of Zoning Appeals derives its authority from the zoning ordinance established by the Board of Commissioners of Elkhart County. The ordinance describes the Board's powers and duties in this fashion:
"POWERS AND DUTIES OF THE BOARD.
a. The Board shall have the following powers and it shall be its duty to:
1. Hear and determine appeals from and review any order, requirement, decision or determination made by the Zoning Administrator in the enforcement of this ordinance.
2. Hear and decide on permits for conditional uses, development plans or other uses upon which the Board is required to act under this ordinance.
3. Authorize upon appeal in specific cases such variances from the terms of this ordinance as will not be contrary to the public interest, where owing to special conditions, fully demonstrated on the basis of the facts presented, a literal enforcement of the provisions of the ordinance will result in unnecessary hardship, and so that the spirit of this ordinance shall be observed and substantial justice done.
b. In exercising its powers, the Board may reverse or affirm, wholly or partly, or may modify the order, requirement, decisions or determination appealed from as in its opinion ought to be done in the premises and to that end shall have all the powers of the Zoning Administrator from whom the appeal is taken."
The Board asserts it could legally deny the petitioner's request under section a(2) above. However, we disagree. As we will demonstrate, the use of land for a church is a "contingent use," upon which the Board is not required to act, and indeed upon which it cannot act, under the ordinance.
As noted, the property on which the appellee hoped to build was in an agricultural area, classified as an A1C agricultural district. The ordinance makes specific reference to these "agricultural zones," outlining to what use they may be put:
"SPECIFICATIONS A-AGRICULTURAL DISTRICTS AND USES
I. Permitted Uses in Agricultural Districts
1. Agricultural Uses of all types including the raising of livestock and poultry.
2. Residential Dwellings as specified in Specifications B-Residential Uses.
3. Contingent Uses as specified in Specifications E.
4. Special Uses as specified in Specifications F.
5. Off-Street parking facilities as required in Specifications G.
6. Signs as regulated in Specifications H.
7. Mobile, Compact or Expandable Homes as provided in Specifications J."
Thus, "contingent uses" are one of several permitted uses in agricultural districts. The ordinance defines these contingent uses as "uses which are likely or liable, but not certain, to occur and which are not inappropriate to the principal use of the district in which located." It then provides that "contingent uses, as listed herein, are permitted in the district indicated below," and included in that list is a "church or temple," which, according to the ordinance, may be located in all but "M" districts.
The ordinance accords no room to discretion. It leaves nothing to the judgment of the Board, and it makes no provision for any denial. Rather, its clear import is that a church is a contingent use, and a contingent use is a permitted use within A1C agricultural districts. If one takes the ordinance at face value, the Board is granted no authority to deny the request for permission to build, assuming the church complied with certain other regulatory provisions of the ordinance, including applicable height and setback restrictions (and there is no evidence that it did not).
Nevertheless, the Board contends it was free to go beyond this purely factual inquiry, once initiated, and consider the pros and cons of locating the church at the proposed location, to consider its impact on the "safety, public convenience, and welfare of the community." In addition, the Board argues it properly adopted the procedure used in hearing applications for "special uses" in making that determination. We cannot agree.
The Board may do no more than the ordinance gives it authority to do, and in this case, it is clear the ordinance contemplates no more than a factual inquiry to determine if regulatory provisions have been complied with.
The ordinance very clearly delineates between the types of uses to which land may be put: contingent, conditional, and special. The three are not the same. "Contingent uses" imply uses normally contemplated in a particular area, "conditional uses" imply uses normally contemplated but in slightly altered fashion, and "special uses" imply uses not normally contemplated....
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