Board of Zoning Appeals of City of New Albany v. Koehler, 30262

• Decision Date: 22 November 1963
• Docket Number: No. 30262,30262
• Parties: BOARD OF ZONING APPEALS OF THE CITY OF NEW ALBANY, Indiana, Mrs. Walter Lincoln, whose true name is Mildred Clark Lincoln, Mrs. F. M. Wrege, whose true name is Sturart Wrege, Mrs. M. L. Anderson, whose true name is Jane Anderson, and John A. Cody, Appellants, v. Mary KOEHLER, Appellee.
• Court: Indiana Supreme Court

Page 49

194 N.E.2d 49

244 Ind. 504

BOARD OF ZONING APPEALS OF THE CITY OF NEW ALBANY, Indiana Mrs. Walter Lincoln, whose true name is Mildred Clark Lincoln, Mrs. F. M. Wrege, whose true name is Sturart Wrege Mrs. M. L. Anderson, whose true name is Jane Anderson, and John A. Cody, Appellants, v. Mary KOEHLER, Appellee.

No. 30262.

Supreme Court of Indiana.

Nov. 22, 1963.

Basil H. Lorch, Jr., Lorch & Lorch, New Albany, for appellants.

Robert R. Kelso, Robert A. Kelso, Kelso & Kelso, New Albany, for appellee.

MYERS, Chief Justice.

This was an action brought by appellee, Mary Koehler, against appellants, in the Floyd Circuit Court of Indiana, on a petition for a writ of certiorari as an appeal from a decision of the Board of Zoning Appeals of the City of New Albary, Indiana. The Building Commissioner of that city had denied appellee an 'Improvement Location Permit' so as to allow her to erect a Shopping Center on certain real estate owned by her. She appealed his ruling to the Board of Zoning Appeals which recommended that the matter be transferred to the Planning and Zoning Commission of the city. From this disposition, she followed the statutory procedures to present the matter to the Floyd Circuit Court by writ of certiorari. Trial was had to the court and judgment was rendered upon special findings of fact and conclusions of law in favor of appellee and reversing the Board of Zoning Appeals. The court determined that she was entitled to have an Improvement Location Permit issued to her. The cause was remanded to the Board of Zoning Appeals for proceedings in conformity with the judgment.

A motion for new trial was filed, asserting that the decision of the court was not sustained by sufficient evidence and was contrary to law. It was also alleged that the court erred in its conclusions of law. The motion was overruled and this appeal followed.

The reason the appeal comes to this court is because a question was raised and duly presented that the pertinent city ordinance herein violates the Constitutions of Indiana anf of the United States as it affects appellee's real estate. It is provided by statute that appeals involving constitutional questions shall come directly to this court. Section 4-214, Burns' Ind.Stat., 1946 Replacement.

The trial court's special findings of fact and conclusions of law, omitting the caption and formal parts, are as follows:

'FINDINGS OF FACT

'No. 1. That on the 3rd day of April, 1961, Mary Koehler was the owner of the real estate in the City of New Albany, Floyd County, Indiana, described as follows, to-wit:

'Lot numbered 20 in plat numbered eighty-four (84) with appurtenances, being the same property set off to Elizabeth Turner by the order of the Common Pleas Court of Floyd County, Indiana, in the case of John S. Davis, Administrator of the estate of Henry Turner, deceased, vs. Henry C. Turner et al, as the same appears of record in Minute Book B. page 591, of the record of said Court, under date of January 14, 1858.

'No. 2. That on the 3rd day of April, 1961, Mary Koehler filed with H. Lloyd Rogers, City Building Commissioner of the City of New Albany, Indiana. an application for an Inprovement Location Permit for the purpose of permitting the erection of a Shopping Center on her said real estate.

'No. 3. That said application for an Improvement Location Permit with accompanying documents complied with all the requirements of Section 21 of the Zoning Ordinance 2-58-41 of the City of New Albany, except that the real estate was zoned R-2 Residence.

'No. 4. That on April 3, 1961, H. Lloyd Rogers, City Building Commissioner of the City of New Albany, Indiana, denied Mary Koehler's application for an Improvement Location Permit for the reason that the real estate described in the Site Plan submitted with her application was zoned under Zoning Ordinance No. 2-58-41 of the City of New Albany as R-2 residence, and that no shopping center could be built thereon.

'No. 5. That on April 3, 1961, Mary Koehler filed with the Board of Zoning Appeals of the City of New Albany, Indiana, her appeal from the action of the City Building Commissioner in denying her application for an Improvement Location Permit and paid the proper fees for such appeal.

'No. 6. That on May 2, 1961, a hearing was had and evidence adduced before said Board of Zoning Appeals on such written appeal from the action of the City Building Commissioner in denying such permit.

'No. 7. That at said hearing the defendants, Mrs. Walter Lincoln, whose true name is Mildred Clark Lincoln, Mrs. F. M. Wrege, whose true name is Stuart Wrege, Mrs. M. L. Anderson, whose true name is Jane Anderson, and John A. Cody appeared in opposition to petitioner's appeal.

'No. 8. That another hearing was had and evidence adduced before said Board of Zoning Appeals in said matter on July 18, 1961.

'No. 9. That at such hearing on July 18, 1961, the following decision was entered by the Board of Zoning Appeals of the City of New Albany:

'Attorney for the Board advised the Board that it had no power to grant request made by the petitioner for a shopping center in an area zoned other than C-3, and that such action would constitute spot zoning, and asked the Board to refer the matter to the Plan Commission for its study and action in rezoning or denying the zoning of the area involved to permit shopping centers. On Motion made by Mr. Zimmerman, seconded by Mr. Stewart, it unanimously adopted the suggestion of attorney for the Commission.

'No. 10. That on August 1, 1961, petitioner filed in this Court her petition for a Writ of Certiorari, praying for a reversal of the decision of said Board of Zoning Appeals.

'No. 11. That the Zoning Boards of the City of New Albany have never approved the erection of a shopping center in said city.

'No. 12. That the four stars on the official zoning map of the City of New Albany are located in inaccessible areas on the outskirts of said city, away from populous districts.

'No. 13. That petitioner's real estate is located in a large and growing commercial section of the City of New Albany but is zoned R--2 residence.

'No. 14. That the erection of a shopping center on petitioner's real estate would not be detrimental to the public health, comfort, safety and walfare of the community.

'No. 15. That the erection of a shopping center on petitioner's real estate would produce no undue traffic hazards.'

'CONCLUSIONS OF LAW

'1. The law is with the petitioner.

'2. Those sections of the Zoning Ordinance No. 2-58-41 relating to the zoning of petitioner's land as residential and prescribing certain restrictions as to the construction of shopping centers, including but not limited to Sections 6, 16, 19 and 21 of said Zoning Ordinance, are violative of Sections 21 and 23 of Article I of the Constitution of the State of Indiana, and of the Fifth and Fourteenth Amendments to the Constitution of the United States of America, and, consequently, unconstitutional, void and of no force and effect as applied to petitioner's real estate.

'3. That petitioner is entitled to have an Improvement Location Permit issued to her by the City Building Commissioner of the City of New Albany to erect a shopping center on said real estate.'

Appellants contend that the decision is contrary to law because of lack of evidence to support the special findings, and that therefore the conclusions of law are erroneous.

The statutes of this state provide for the creation of City, Town and County Plan Commissions, for the purpose, inter alia, of planning for the future development of their communities. Section 53-701 et seq., Burns' Ind.Stat., 1951 Replacement. The City of New Albany had such a Plan Commission established by city ordinance. Pursuant to statutory authority (§ 53-732, Burns'), it had prepared a Master Plan and had formulated a policy for the issuance of Improvement Location Permits within the jurisdiction of the Commission and in conformance with the Master Plan. Section 53-754, Burns'. It is provided by statute that:

'Within the corporate limits of a city, a structure shall not be located and an improvement location permit for a structure on platted or unplatted lands shall not be issued unless the structure and its location conform to the master plan and ordinance.' Section 53-753 Burns'.

The Zoning Ordinance of the City of New Albany defines an Improvement Location Permit as a 'permit stating that the proposed erection, construction, enlargement or moving of a building or structure referred to therein complies with the provisions of the master plan.' Article Two, Section 5, Ordinance No. 41, 1958. Section 16 of this Ordinance sets out Shopping Center District Requirements and Procedures. It provides as follows:

'A. The tract of land involved shall be of an area of not less than five acres and lie wholly or partly within 1,400 feet of a point represented by a 'D-3' District symbol on the Zone Map.

'B. The owner or owners of such tract of land shall have:

'(1) Prepared a plat for a subdivision of the entire tract.

'(2) Prepared a development plan for such entire tract.

'(3) Obtained Commission approval of both the plat for the subdivision and the development plan according to the requirements of the subdivision control ordinance.'

Section 19 of the Ordinance provides as follows:

'B. Procedure. Upon the receipt of an application for a Conditional Use by the Board, it shall be referred to the Commission for investigation as to the manner in which the proposed location and character of the Conditional Use will affect the Master Plan. The Commission shall report the results of its study of the proposal to the Board and, if the report is favorable to the proposal, the Board, may, after public notice and hearing according to law, grant the permit, including the imposition of conditions of use, which the Board deems essential to insure that the Conditional Use is consistent with the spirit, purpose and...