Board of Zoning Appeals of City of Indianapolis v. American Fletcher Nat. Bank & Trust Co., 20075

• Decision Date: 25 March 1965
• Docket Number: No. 20075,No. 2,20075,2
• Citation: 5 Ind.Dec. 108,139 Ind.App. 9,205 N.E.2d 322
• Parties: BOARD OF ZONING APPEALS OF the CITY OF INDIANAPOLIS, Appellant, v. AMERICAN FLETCHER NATIONAL BANK AND TRUST COMPANY, Trustee, Norbert L. Talbott, individually, Norbert L. Talbott, Agent for the Asbury Methodist Church, E. Carter McGriff, individually, E. Carter McGriff, Agent for the Asbury Methodist Church, and the Asbury Methodist Church, Appellees
• Court: Indiana Appellate Court

Page 322

205 N.E.2d 322

139 Ind.App. 9

BOARD OF ZONING APPEALS OF the CITY OF INDIANAPOLIS, Appellant, v. AMERICAN FLETCHER NATIONAL BANK AND TRUST COMPANY, Trustee, Norbert L. Talbott, individually, Norbert L. Talbott, Agent

for the Asbury Methodist Church, E. Carter McGriff,

individually, E. Carter McGriff, Agent for the Asbury

Methodist Church, and the Asbury Methodist Church,

Appellees.

No. 20075.

Appellate Court of Indiana, Division No. 2.

March 25, 1965.

Rehearing Denied May 5, 1965.

[139 INDAPP 10] Michael B. Reddington, Corp. Counsel, John J. Dillon, City Atty., John P. Korlby, Asst. City Atty., Indianapolis, for appellant.

Charles G. Castor, Indianapolis, for appellee American Fletcher Nat. Bank & Trust Co., Trustee.

HUNTER, Judge.

This appeal is from an action instituted by appellees in Marion Superior Court to obtain a review by certiorari of a decision by the Board of Zoning Appeals of the City of Indianapolis (hereinafter referred to as the 'Board'). The Board had refused to grant the appellees a variance to the terms of the Indianapolis City Zoning Ordinance. The trial court reversed the decision of the Board and granted the variance requested, that being the building of a gasoline filling station in a U-2, H-1, A-4 classification which restricted the land to multiple dwellings or apartments.

Appellant Board assigns the error that the trial court erred in overruling appellant's motion for a new trial. Under this assignment, appellant asserts that the decision of the court is contrary to law.

In the hearing before the Board, the trustee AFNB, by its agent, appeared and testified of its need for a variance so that a filling station could be built on the property. The [139 INDAPP 11] principal contention advanced by petitioners-appellees in the evidence before the Board was to the effect that the variance requested for the parcel of land in question would not adversely affect abutting property owners. There was also some testimony of a need because financing could not be obtained on the property involved. An adverse party to petitioners appeared who was evidently representing an apartment builder. He testified that there was a planned building program about to begin in the immediate area and that his client objected to the variance because of the view and noise of a filling station. Some diagrams of the proposed station were also before the Board. The Board concluded that the variance should not be allowed.

Upon petition, a writ of certiorari issued pursuant to the order of the Marion Superior Court. A motion to dismiss the petition, motion to vacate the order for writ of certiorari and demurrer to said writ filed by appellant were overruled. The trial court then saw fit to hear additional evidence to augment the evidence contained in the Board's return to the writ of certiorari. In the supplemental hearing before the court, appellees' only witness was a real estate appraiser who testified to facts concerning the general area surrounding the property. He also testified that in his opinion, the service station would not be injurious to the public health, safety, morals and general welfare of the community; that adjacent real estate would not be adversely affected; that the area of the proposed variance was too small for an apartment site; that appellees would suffer a hardship if not allowed the variance.

Appellant's first witness before the trial court was the pastor of a Church located directly across the street from the property in question. He testified that a gasoline station would materially affect the operation of his Church by interrupting the quietness of the neighborhood. Another witness for appellant, a landowner near the site in question, testified that apartments were being constructed near that location. [139 INDAPP 12] He also testified about the buildings and traffic in the surrounding area.

An examination of the scope of review allowed a trial court as to the City of Indianapolis Board's of Zoning Appeals determinations is necessary. The scope of review allowed is found in the Acts of 1955, ch. 283, Sec. 79, p. 786 being Sec. 53-979, Burns' 1964 Replacement. This statute provides in part that:

'Action of the court--The court may decide and determine the sufficiency of the statements of illegality contained in the petition * * * and render its judgment with reference to the legality of the decision of the board. * * * it (the court) may take evidence to supplement the evidence and facts disclosed by the return to the writ of certiorari, but no such review shall be by trial de novo.

'In passing upon the legality of the decision of the board of zoning appeals, the court may reverse or affirm * * *.' (our emphasis)

The terms of the statute are clear in that the decision of the Board can only be reviewed by the trial court to determine the legality of such decision; that is to say, was the Board's determination wrong as a matter of law? Not only is this limit on review plain from the statute, but prior case law has found such limit on judicial review...