Board of Zoning Appeals of Town of Carmel v. Parsons

• Decision Date: 09 December 1964
• Docket Number: No. 1,No. 19842,19842,1
• Citation: 202 N.E.2d 589,136 Ind.App. 520
• Parties: The BOARD OF ZONING APPEALS OF the TOWN OF CARMEL, Indiana, Appellant, v. Harry L. PARSONS, Hazel M. Parsons, Northside Amusement Corporation, Perine Development Corporation, Appellees
• Court: Indiana Appellate Court

Page 589

202 N.E.2d 589

136 Ind.App. 520

The BOARD OF ZONING APPEALS OF the TOWN OF CARMEL, Indiana Appellant, v. Harry L. PARSONS, Hazel M. Parsons, Northside Amusement Corporation, Perine Development Corporation Appellees.

No. 19842.

Appellate Court of Indiana, Division No. 1.

Dec. 9, 1964.

[136 INDAPP 521]

Webb, Webb & Smith, Noblesville, for appellant.

Manson E. Church, Noblesville, Stephen W. Terry, Jr., Indianapolis, Roberts & Church, Noblesville, Baker & Daniels, Indianapolis, of counsel, for appellees.

COOPER, Judge.

This is an appeal from a negative judgment rendered in the Hamilton Circuit Court wherein the appellant, the Board of Zoning Appeals of the Town of Carmel, Indiana, brought an action for a permanent injunction to enjoin appellees, Harry L. Parsons, et al., from changing the contour of and constructing improvements on certain real estate alleged to be in violation of the Improvement Location Permit Ordinance of the Town of Carmel, Hamilton County, Indiana.

The cause was submitted to the court, and thereafter the court entered the following final judgment:

'This cause having been taken under advisement, the court now finds against the plaintiff upon its complaint and for the defendants, that the plaintiff take nothing by its complaint and that no injunction be issued against the defendants as sought in plaintiff's complaint; and further that defendants should recover costs.

'It is therefore considered, ordered, adjudged and decreed that the plaintiff take nothing by its complaint and that costs be and they are hereby taxed to the plaintiff.'

Thereafter, the appellant filed the usual motion for a new trial, charging (1) that the decision of the court is not sustained by sufficient evidence; (2) that the decision of the court is contrary to law; (3) that the decision of the court is not sustained by sufficient evidence and is contrary to law.

[136 INDAPP 522] The court overruled said motion for new trial, and the overruling of the motion for new trial is the assigned error.

Being a negative judgment, specifications #1 and #3 of the appellant's motion for a new trial present nothing for our consideration. The general rule of law under such circumstances is well stated in the case of Leckrone v. Lawler (1954) (T.D.) 125 Ind.App. 35, 37, 118 N.E.2d 381, 382, wherein we held: 'As the finding was negative to appellants who had the burden of proof, they cannot challenge the insufficiency of the evidence to sustain the finding, Myers v. Brane, 1944, 115 Ind.App. 144, 57 N.E.2d 594; Wilson [Admrx.] v. Rollings [et al.], 1938, 214 Ind. 155, 158, 14 N.E.2d 905.' See also Hinds, Executor Etc., v. McNair, et al. (1955) 235 Ind. 34, 40, 41, 129 N.E.2d 553.

The appellant also asserts the decision is contrary to law, which, as pointed out in the case of Leckrone v. Lawler, supra, they may do. However, 'It is only where the evidence is without conflict and can lead to but one conclusion, and the trial court has reached an opposite conclusion, that the decision of the trial court will be set aside on the ground that it is contrary to law. Losche & Sons v. Chas. Williams & Associates, 1948, 118 Ind.App. 392, 78 N.E.2d 447, supra.' Pokraka v. Lummus Co. (1952) 230 Ind. 523, 532, 104 N.E.2d 669, 673.

Our Supreme Court, in the Hinds, Executor Etc. v. McNair, et al. case, supra, 235 Ind. at p. 41, 129 N.E.2d at pp. 558-559, stated:

'If the undisputed evidence entitles the one who has the burden of proof to a verdict which has been denied him, such verdict is contrary to law. To determine this question we may consider only the evidence most favorable to the appellees, together with [136 INDAPP 523] all reasonable inferences which may be drawn therefrom.

"It is only where the evidence is without conflict and can lead to but one conclusion, and the trial court has reached an opposite conclusion, that the decision of the trial court will be set aside on the ground that it is contrary to law." (Our emphasis)

In reviewing the applicable statutes, it appears that ch. 174 of the 1947 Acts, Secs. 53-701 to 53-794, 1951 repl., is a comprehensive act covering the entire subject matter of zoning for urban and rural areas of the state, and prior city and county zoning acts were repealed, except as to certain acts, regulations and ordinances continued in force by specific provisions of the new act.

It would unduly extend this opinion to attempt any summary of the entire act or to set forth verbatim the sections material to the decisions of this appeal.

The general rule of law is so well established that we do not deem it necessary to cite authority that the General Assembly may confer upon the several counties, cities, towns, etc., powers of local legislative and administrative character, but it is also well settled that such powers are not self-executing, and where a statute provides the manner in which a power is to be exercised, the statutory directions must be followed to give validity to the act.

In reviewing the record now before us, it affirmatively appears that in 1957 the town of Carmel, under the authority of the 1947 Zoning Act, passed an ordinance designated as Carmel's Master Plan which embraced only the town limits of Carmel.

In 1959, it appears that the town of Carmel decided to go the additional two miles beyond the town limits permitted by the 1947 Zoning Act, and amended its 1957 [136 INDAPP 524] Master Plan by ordinance, thereby properly exercising its power to go the additional two miles. It also appears that the newlyzoned area was called its jurisdictional area and delineated that on its jurisdictional map appearing in the record.

It has been established by the stipulation of the parties appearing in the record that the appellees' land, upon which construction was sought to be enjoined by the appellant herein, (construction was begun on April 20, 1961) was located considerably more than two miles from the town of Carmel's corporate limits and is not within the jurisdictional area delineated on Carmel's jurisdictional map of 1959.

It is the appellant's contention that Carmel's 1959 Master Plan was extended automatically beyond its express territorial scope by a purported and alleged joinder of the town of Carmel and Clay Township by virtue of a purported joinder resolution of the 2nd day of February, 1960, authorized by ch. 46, Acts 1959, Indiana General Assembly. We cannot agree with the appellant's contention.

In reviewing Sec. 53-1214, 1964 supp., Burns' Ind.Stat., it is apparent that the Acts of 1959, the same being Secs. 53-1201 to 53-1214, are supplemental to the general acts of 1947, ch. 174, the comprehensive act which covers the entire subject matter of zoning for urban and rural areas of the state, and merely confers authority upon any city, town or county to effect a joinder with a contiguous township.

In reviewing the Act of 1959, we note that the joinder statute does not authorize a town to extend its...