Board of Zoning Appeals of City of Mishawaka v. La Dow, 29631
| Decision Date | 31 October 1958 |
| Docket Number | No. 29631,29631 |
| Citation | 238 Ind. 673,153 N.E.2d 599 |
| Parties | BOARD OF ZONING APPEALS OF CITY OF MISHAWAKA, Indiana, Hillis J. Hans, Frank J. Miller, Melvin J. Keiser, Roland J. Sylvester, Robert L. McHenry, as Members of the Board of Zoning Appeals of the City of Mishawaka, Indiana, Vincent Moraschi, Appellants, v. August R. LA DOW, Jo Ann La Dow, Aliee M. Lyons, Clifford G. Lyons, A. F. Lemontree, Ida May Lemontree, Appellees. |
| Court | Indiana Supreme Court |
Leonard V. Campanale, Mishawaka, for appellants.
Joseph R. Roper, of Farabaugh, Chapleau & Roper, and Arthur A. May, of Crumpacker, May, Beamer, Levy & Searer, South Bend, for appellees.
The City of Mishawaka, Indiana, had an amendatory ordinance forbidding, among other things, gasoline filling stations from commercial zones in such city.
Appellees are the owners of certain lots situated in a commercial zone of the City of Mishawaka upon which they desired to build a filling station. They filed application for a building permit to erect a filling station on such property, which was refused because of the prohibition of said ordinance.
Appellees appealed to the Board of Zoning Appeals, contending the amendatory ordinance violated §§ 21 and 23, Art. 1, of the Constitution of Indiana, and the Fifth and Fourteenth Amendments of the United States, Constitution. The Board of Zoning Appeals, after hearing evidence thereon, denied the appeal of appellees, thereby sustaining the action of the building commissioner in denying said permit.
Within thirty days thereafter, appellees filed petition for certiorari in the court below to review the decision of the Board of Zoning Appeals, and said court after hearing additional evidence, held said amendatory ordinance to infringe upon §§ 21 and 23, of Art. 1 of the Indiana Constitution, and § 1 of the Fourteenth Amendment of the United States Constitution, and reversed the decision of the Board of Zoning Appeals and remanded the cause for further proceedings consistent therewith. Appellant has appealed to this court.
Appellants in their brief assert that the basic issue on this appeal is whether the restrictions against the erection and operation of filling stations in commercial districts of the City of Mishawaka imposed by the city ordinance, are a reasonable exercise of the police power so as to be constitutional.
To consider this question it is necessary to look to the evidence adduced before the court below.
Appellees introduced the following evidence before the Board of Zoning Appeals, the record of which was introduced before the lower court, as follows, to-wit:
Testimony of a field engineer for an oil company to the effect that filling stations are not a greater fire hazard than a grocery or other commercial enterprise, and that there are no smells or noises connected therewith.
Testimony of an oil company manager, that on April 2, 1956, there were sixty-six filling stations in Mishawaka, forty-four of which were located in commercial districts, that gasoline stations in industrial zones were not desired by oil companies, as business there is uncertain.
Testimony of a real estate agent that the effect of the ordinance was to reduce the value of appellees' property approximately $75.00 per front foot.
Testimony of a police officer that results of a survey of sixty-one of sixty-six filling sations in Mishawaka disclosed that in 450 years of combined operating experience, there were no pedestrian accidents, and only fourteen vehicular accidents at eight of such stations, five of which were in commercial and three in industrial districts. That at such sixty-one stations, there have been five fires at four of such stations, during an operational period of 58 years.
Testimony of an attorney as to rating bureau's opinion that fire insurance rates on adjoining property would not be adversely affected by location of a filling station in the area, various exhibits including a study by engineering consultants concluding the elimination of modern gas stations from commercial districts is not warranted on the alleged basis of increased safety and decreased congestion.
The following additional evidence was introduced before the court:
Stipulation by the parties to the effect a survey made at appellants' request revealed that of the sixty-six existing gasoline stations within the City of Mishawaka, only ten provide light motor repair services, and two provide light body repair. The remaining fifty-four stations carry on only the normal services of such stations.
In considering the constitutionality of the ordinance in question, there can be no doubt but that its provisions restricting the use of appellees' property for gasoline filling stations represented a taking of appellees' property. The only question is whether the taking can be considered lawful and not without due process of law, 1 by reason of its being within the scope of the police powers of public safety, health, morals, and welfare.
But where does there appear in the foregoing evidence any indication that the subject ordinance outlawing filling stations in the commercial districts of Mishawaka is in the interest of public safety, health, morals or welfare? The undisputed evidence in the record shows filling stations to have little if any effect on pedestrian and traffic safety, no appreciable effect on danger of loss by fire or injury to health. In fact, the record shows filling stations not to be a greater fire hazard than a grocery or any other commercial enterprise, and that additional odors foreign to other commercial enterprises are not generally prevalent. The experience of no pedestrian injuries and only fourteen vehicular accidents in a combined period of 450 years operation in Mishawaka refutes any possible contention that gasoline stations are a traffic...
To continue reading
Request your trial
-
McIntosh v. Melroe Co.
...a taking that was not justified by safety concerns and therefore violated both constitutions. See Board of Zoning Appeals v. La Dow, 238 Ind. 673, 676-78, 153 N.E.2d 599, 601 (1958). The second, Dean v. State ex rel. Board of Medical Registration & Examination, 233 Ind. 25, 30-31, 116 N.E.2......
-
White v. State
...of the federal constitution and the "due course" clause of the Indiana Constitution as interchangeable. Board of Zoning Appeals v. La Dow (1958), 238 Ind. 673, 153 N.E.2d 599; Dean v. State ex rel. Bd. of Med. Registration (1954), 233 Ind. 25, 116 N.E.2d 503; Paul v. Walkerton Woodlawn Ceme......
-
Toth v. Lenk
...The courts of this State have similarly treated the two provisions now under consideration. See: e.g., Board of Zoning App. etc. v. La Dow et al. (1958), 238 Ind. 673, 153 N.E.2d 599. Thus, substantially the same question is presented under either Statutes of limitation such as that in the ......
-
Field v. Area Plan Commission of Grant County, Ind.
...313 N.E.2d 78 (variance to construct neighborhood shopping facility in growing commercial area.) Finally, in Board of Zoning Appeals v. LaDow (1958) 238 Ind. 673, 153 N.E.2d 599, our Supreme Court held the denial of a permit to construct a filling station in a commercial zone was a denial o......