Board of Zoning Appeals of Town of Meridian Hills v. Schulte

• Decision Date: 07 February 1961
• Docket Number: No. 29919,29919
• Citation: 241 Ind. 339,172 N.E.2d 39
• Parties: BOARD OF ZONING APPEALS OF the TOWN OF MERIDIAN HILLS, Indiana, et al. v. Paul C. SCHULTE, Archbishop of the Roman Catholic Archdiocese of Indiananpolis, Appellee.
• Court: Indiana Supreme Court

Page 39

172 N.E.2d 39

241 Ind. 339

BOARD OF ZONING APPEALS OF the TOWN OF MERIDIAN HILLS, Indiana, et al. v. Paul C. SCHULTE, Archbishop of the Roman Catholic Archdiocese of Indiananpolis, Appellee.

No. 29919.

Supreme Court of Indiana.

Feb. 7, 1961.

John D. Hughes, Cadick, Burns, Duck & Neighbours, Floyd W. Burns, Clyde L. Peterson, Charles W. Culp, Indianapolis, for appellants.

McHale, Cook, Welch & McKinney, Frank M. McHale, John I. Bradshaw, Jr., Indianapolis, for appellee.

ARTERBURN, Judge.

The appellee, desiring to build a Catholic church, school, priests' dwelling and sisters' home upon an 18 acre tract which the church has owned since 1948, petitioned the Board of Zoning Appeals of the Town of Meridian Hills for that purpose. There was opposition to the granting of a petition and the Board, after a hearing, denied the request. An administrative appeal was taken to the trial court, which reversed the action of the Board of Zoning Appeals, and from this adverse ruling the Board of Zoning Appeals and certain remonstrators have appealed. The appellee claims that the Board of Zoning Appeals has unconstitutionally applied the zoning ordinance in the instant case.

It appears that the Town of Meridian Hills is a suburban area adjacent to the City of Indianapolis. It is conceded to be one of the most desirable, close-in, suburban locations in the Indianapolis area and enjoys a semi-rural setting with a quite, peaceful, residential atmosphere. The testimony warrants the conclusion it was zoned primarily for that purpose. For the most part, single family residential homes which cost in the neighborhood of $50,000. or more to construct are located in the area of the Catholic Church's property under consideration.

It is pointed out in appellants' brief that besides the peaceful atmosphere of the neighborhood contiguous to appellee's lot and the greater value and attractiveness of the homes facing these properties, the area is unique in still another respect:

'Only three of the houses bordering on the side of the proposed parish plant have sufficient bedrooms and are of sufficient size to accomodate families with children. Almost all the homes have only two or three bedrooms.'

The tract in question is located on 75th Street where there is very little traffic now disturbing the residents. It is pointed out that some of the remonstrators have offered to procure for the proposed church and school an alternative site of approximately the same area, which is on 73rd Street about three blocks distant and which is outside the town limits. The alternative proposed site is on a more heavily traveled main highway and is immediately adjacent to a junior high school. A considerable portion of the briefing has been spent on the merits of the alternative site, which we do not believe is material under the legal issues raised here. A person may not be excluded from a zone on the ground he could find just as good a site outside the area. State Ex Rel. Synod of Ohio, etc. v. Joseph, 1942, 139 Ohio St. 229, 39 N.E.2d 515, 138 A.L.R. 1274; Rhyne, Municipal Law, sec. 32-48, p. 852.

The appellee states that the uncontradicted evidence shows that the proposed construction will cost approximately one million dollars and is designed so as to comply with all applicable building regulations, including height and setback lines. The plans also provide for adequate and ample offstreet parking facilities in a shrubbery-enclosed lot, with sufficient means of ingress and egress so as to avoid traffic congestion. There is no evidence pointed out to us that the sanitary, health and safety requirements with reference to the proposed project have not been met in every respect. The appellants contend that the proposed Catholic school and church will have an injurious effect upon the surrounding residential property by depreciating its value.

The evidence on the part of the appellants in this respect consists of the testimony of two or three witnesses, which states in substance 'that the proposed parish plant would cause substantial and permanent injury to the property bordering upon the appellee's land.' Mr. H. L. Bartholomew, engaged in the construction business, testified there would be a 'depreciated value' in the amount of 20% to such residential property. Mr. Claude O. Crawford, a professional appraiser, testified in substance the decrease in value of the surrounding homes would amount to 16% to 20%.

The trial court, in its special findings of fact, refused to accept such evidence as substantial in support of the Board's decision on the ground that it was 'but a shred of evidence' and the witnesses gave no specific instance in which a church or school had been constructed in an area of expensive residential homes that had thereafter actually caused a depreciation in value.

The record revealed that the Catholic church had acquired the property eleven years prior thereto, when there was only one house existing on the perimeter of the property; that at the time it posted a sign of its intention to build a church and school on the site; that since that time, residences had been built on the adjoining property with the full knowledge of the owners of the use to be made of the church and school site; that in fact, all the property had increased in value during that period of time, some as much as 100% in the past four years.

At the time appellee's petition was pending before the Board it was shown that there were two other churches in the Town of Meridian Hills, a Congregational Church located at 71st and North Pennsylvania Streets and a Hebrew Temple (erected after the overruling of an adverse Zoning Board's decision by the Marion Superior Court), and a third church (the Second Presbyterian Church) was under construction on property immediately contiguous to and adjoining the property owned by the appellee. The appellee claims there has been an arbitrary and discriminatory decision by the Board of Zoning Appeals, excluding the Catholic church and school from the community.

In resolving any issue of fact on appeal in this court we may not weigh the evidence, but can only determine whether or not there is any substantial evidence which is competent as a foundation for the decision or ruling of the administrative board. Public Serv. Comm. of Indiana et al. v. City of Indianapolis, 1956, 235 Ind. 70, 131 N.E.2d 308; Public Serv. Comm. of Indiana et al. v. Indiana Tel. Corp., 1957, 237 Ind. 352, 146 N.E.2d 248; Mann v. City of Terre Haute, Ind.1960, 163 N.E.2d 577; Board of Zon. App., etc. v. School City of Mishawaka, 1957, 127 Ind.App. 683, 145 N.E.2d 302.

The zoning ordinance in question provides:

'Class U-1 uses: (Residence)

'1. Dwelling.

'2. Church, school, library, community center, private club (excepting a club the chief activity of which is a service customarily carried on as a business).

'3. Public park, public playground, water supply reservoir, well or tower.

'4. Green house, nursery, truck gardening.'

Thereafter a special clause provides:

'(b) In a residence district no building shall be erected which is arranged, intended or designed for a use enumerated in subdivision '2', '3' or '4' of Class U-1 uses, unless such building is located on a lot determined by the Board of Zoning Appeals after public notice and hearing to be so located that such building will, in the judgment of said Board, substantially serve the public convenience and welfare and will not substantially or permanently injure the appropriate use of neighboring property.'

Analyzing these provisions, we find that a church or school may be located in the Town of Meridian Hills, which permits only U-1 uses, if it 'substantially serves the public convenience and welfare and will not substantially or permanently injure the appropriate use of the neighboring property'. There is no issue made here that the church and facilities as proposed do not serve the 'public convenience and welfare'. The issue is--does such use 'substantially or permanently injure the appropriate use of the neighboring property' and is that a constitutionally valid reason for excluding a church and its facilities, including the school?

In this state it has been decided that facilities that go with the church of the particular denomination may not be excluded if the church is admittable. For example, a recreation building and playground in connection with the Meridian Street Methodist Church (Keeling v. Board of Zoning Appeals, 1946, 117 Ind.App. 314, 69 N.E.2d 613) and a 'sisters' home' for the teachers in a Catholic church-school (Board of Zoning Appeals, etc. v. Wheaton, 1948, 118 Ind.App. 38, 76 N.E.2d 597, 601). In the latter case it is said:

'We are of the opinion that a convent or 'sisters' home' must be considered an integral part of any Roman Catholic church project, which is composed of four component parts, viz.: church, priests' mansion, a 'sisters' home,' and school.'

The section of the zoning ordinance applicable in each of the above cases is similar, if not exactly the same as that before us in this case.

In viewing the evidence, as we must, most favorable to the Board, we conclude its action could only be based upon the evidence that the property in the neighborhood would be depreciated by approximately 20% if the Catholic church and facilities are located as proposed. The contention, that is touched upon rather lightly, that the proposed church and facilities should be located on the alternative site on 73rd Street, (where the traffic is heavier) in order not to disturb the neighborhood of 75th Street, where the traffic, it is admitted, is lighter, does not suggest any valid reason in law for the action of the Zoning Board. Traffic safety, particularly for children, is a matter of general public concern and far outweighs the private interest involved in a quiet neighborhood. It likewise occurs to use that the fact that the 75th Street area might be one in...