Board of Zoning Appeals of City of Mishawaka v. School City of Mishawaka

• Decision Date: 11 October 1957
• Docket Number: No. 18978,18978
• Citation: 145 N.E.2d 302,127 Ind.App. 683
• Parties: BOARD OF ZONING APPEALS OF The CITY OF MISHAWAKA, Indiana, Appellant, v. SCHOOL CITY OF MISHAWAKA, Indiana, Appellee.
• Court: Indiana Appellate Court

Page 302

145 N.E.2d 302

127 Ind.App. 683

BOARD OF ZONING APPEALS OF The CITY OF MISHAWAKA, Indiana, Appellant, v. SCHOOL CITY OF MISHAWAKA, Indiana, Appellee.

No. 18978.

Appellate Court of Indiana, In Banc.

Oct. 11, 1957.

Leonard V. Campanale, Mishawaka, for appellant.

John Schindler, Jr., F. Richard Kramer, Mishawaka, for appellee.

CRUMPACKER, Chief Judge.

There is now in effect, and has been since July 20, 1931, a zoning ordinance in the city of Mishawaka, Indiana, containing a provision requiring buildings in a certain area bordering on Lincoln Way to have a minimum setback of 25 feet from said street. The Mishawaka High School is located on property within this area and on March 27, 1956, the appellee applied for a permit to construct an addition to the gymnasium wing of the building housing said high school. The application was denied by the Building Commissioner for the reason that the addition, if built, would extend within eight feet of the sidewalk on the north side of Lincoln Way and thus violate the 25 foot setback restriction of the zoning ordinance. On the theory that an unnecessary hardship would result from the strict adherence to the 25 foot setback restriction, the appellee applied to the appellant Board of Zoning Appeals for a variance of such restriction to permit the building of the proposed gymnasium notwithstanding it would extend, when completed, to within eight feet of the appellee's south line bordering on Lincoln Way. The appellant refused to vary the ordinance in any particular and, upon a writ of certiorari, the St. Joseph Superior Court reviewed such decision and on August 3, 1956, said court adjudged that: '(1) The decision of the Board of Zoning Appeals of the city of Mishawaka heretofore entered be and the same is hereby reversed; (2) The Board of Zoning Appeals of the city of Mishawaka be and the same is hereby ordered and directed to grant the School City of Mishawaka a variance of use to permit the erection of the proposed addition to the Mishawaka High School; and (3) The clerk of this court be and is hereby directed to forward a certified copy of this judgment to the Building Commissioner to the city of Mishawaka.'

This appeal attacks said judgment as being: (1) Void for lack of jurisdiction of the St. Joseph Superior Court over the subject matter of the litigation; (2) unsupported by sufficient evidence; and (3) contrary to law. In its argument in support of its contention on the question of jurisdiction the appellant says: 'Although the court may have had jurisdiction of the parties and the general subject matter of the controversy under the governing statute, it did not have jurisdiction of the subject matter in the instant case for the reason that there was a failure of strict compliance with the governing statute when the appellant was required, under a rule to show cause issued to it by the court requiring a showing why a writ of certiorari should not issue before the expiration of the 20 day period required by law.' This statement is somewhat confusing but if was understand it correctly the appellant concedes the jurisdiction of the St. Joseph Superior Court over the parties and, in general, the jurisdiction of said court to review the orders of boards of zoning appeals, but says said court failed to acquire jurisdiction to review the orders of the zoning board in this particular instance because it was not given the full 20 days to show cause why a writ of certiorari should not issue. Sec. 53-785, Burns' 1951 Replacement.

We see no merit in this proposition. By jurisdiction of the subject matter is meant jurisdiction over the class of cases to which the particular case belongs. Chicago and Atlantic Railway Company v. Sutton, 1892, 130 Ind. 405, 30 N.E. 291; McCoy v. Able, 1892, 131 Ind. 417, 30 N.E 528, 31 N.E. 453; Daniels v. Bruce, 1911, 176 Ind. 151, 95 N.E. 569; United States Health & Accident Ins. Co. v. Clark, 1908, 41 Ind.App. 345, 83 N.E. 760. Sec. 53-783, Burns' 1951 Replacement, provides as follows:

'Any person or persons, firm or corporation jointly or severally aggrieved by any decision of the board of zoning appeals, may present to the circuit of superior court of the county in which the premises affected is located a petition, duly verified, setting forth that such decision is illegal, in whole or in part, and specifying the grounds of the illegality. The petition shall be presented to the court within thirty (30) days after the entry of the decision or order of the board of zoning appeals complained of.'

Clearly this section of the zoning statute gives the St. Joseph Superior Court jurisdiction of the class of cases to which the present litigation belongs. Failure to comply strictly with the requirements of the statute might render a subsequent decision of the reviewing court erroneous but it could not deprive the court of jurisdiction of the subject matter which the statute expressly confers upon it.

The appellant's remaining contentions are: (1) The decision of the court is not sustained by sufficient evidence; and (2) the decision of the court is contrary to law. In connection with these questions we quote from the appellant's brief as follows: 'Appellant contends that the decision is contrary to law because of a lack of evidence supporting the finding of the Court that the appellant's decision was 'illegal,' which evidence did not constitute any 'unnecessary hardships' or 'practical difficulties' which would permit appellant to grant relief under the definition of its powers and duties as specified in the governing municipal ordinance. Inasmuch as substantially the same question is raised in this case by both causes, these two causes are here grouped and supported by one argument.' They will be considered by us in the same manner.

The pertinent statute defining the powers and duties of boards of zoning appeals, § 53-778, Burns' 1951 Replacement, reads as follows:

'The board of zoning appeals shall:

'1. Hear and determine appeals from and review any order, requirement, decision or determination made by an administrative official or board charged with the enforcement of any ordinance or regulation adopted pursuant to sections 56 through 65 (§§ 53-756-53-766) of this act.

'2. Permit and authorize exceptions to the district regulations only in the classes of cases or in particular situations as specified in the ordinance.

'3. Hear and decide special exceptions to the terms of the ordinance upon which the board is required to act under the ordinance.

'4. Authorize upon appeal in specific cases such variance from the terms of the ordinance as will not be contrary to the public interest, where owing to special conditions, a literal enforcement of the provisions of the ordinance will result in unnecessary hardship, and so that the spirit of the ordinance shall be observed and substantial justice done.'

The 'classes of cases' or 'particular situations' under which the Board of Zoning Appeals of the city of Mishawaka is authorized to grant variances are defined by ordinance as follows: '(6) Where there are practical difficulties or unnecessary hardships in the way of carrying out the strict letter of this ordinance, the Board of Zoning Appeals shall have the power in passing upon appeals to vary or modify the application of any of the regulations or provisions of this ordinance relating to the use, construction, or alteration of buildings or structures or the use of land so that the spirit of the ordinance shall be observed, public safety and welfare secured and substantial justice done.'

The record clearly indicates that the appellee sought a variance of the 25 foot setback provision of the zoning ordinance upon the assertion that its strict enforcement in this case would result in a hardship to the pupils of the Mishawaka High School, its teachers, its administrative personnel, its taxpayers and the violation of the statutory duties of the school trustees to furnish adequate educational facilities. That in denying the variance the appellants acted arbitrarily, capriciously, and upon evidence devoid of probative value, and therefore illegally. In determining the validity of this contention certain well established principles may well be noted.

A board of zoning appeals has sole power within its discretion to vary a zoning ordinance and its decision is reviewable by the courts only for illegality in its proceedings. Board of Zoning...