Board of Zoning Appeals of City of Fort Wayne v. Shell Oil Co.

• Decision Date: 18 June 1975
• Docket Number: No. 3--1173A144,3--1173A144
• Parties: BOARD OF ZONING APPEALS OF the CITY OF FORT WAYNE, Defendant-Appellant, v. SHELL OIL CO. and Sharberg Realty Corp., Plaintiffs-Appellees.
• Court: Indiana Appellate Court

Page 636

329 N.E.2d 636

164 Ind.App. 497

BOARD OF ZONING APPEALS OF the CITY OF FORT WAYNE, Defendant-Appellant, v. SHELL OIL CO. and Sharberg Realty Corp., Plaintiffs-Appellees.

No. 3--1173A144.

Court of Appeals of Indiana, Third District.

June 18, 1975.

Rehearing Denied Aug. 7, 1975.

David B. Keller, Ralph R. Blume, Fort Wayne, for appellant.

David Peters, Peters, Peebles & Terrill, Fort Wayne, for appellees.

HOFFMAN, Judge.

On March 10, 1972, Shell Oil Company (Shell) executed a conditional lease and option agreement with Sharberg Realty Corporation (Sharberg), under which Shell was to be allowed to construct a combination service station and tunnel car wash upon certain real estate owned by Sharberg in the City of Fort Wayne, Indiana. On the same date, Shell applied to the Building Commissioner of the City of Fort Wayne in order to obtain a building permit and an improvement location permit for the construction of the aforementioned facilities.

Thereafter, on March 15, 1972, the Common Council of the City of Fort Wayne promulgated General Ordinance No. G--04--72, which provides, in pertinent part, as follows:

'AN ORDINANCE pertaining to the construction of establishments for the sale of gasoline and/or diesel fuel.

'WHEREAS, many establishments have been built in the City of Fort Wayne where gasoline and/or diesel fuels, among other products, are sold to motorists and where gasoline and/or diesel fuel is transferred from pumps into the fuel tanks of cars, trucks and/or other vehicles; and

'WHEREAS, the owners of many such establishments have abondoned (sic) them in the sense that the owners have discontinued their use for the purpose of selling gasoline and/or diesel fuel to motorists or for any other purpose; and

'WHEREAS, there are such establishment, abondoned (sic) in the sense aforesaid, in every councilmanic district in the City of Fort Wayne; and

'WHEREAS, the proximity of such establishments, abandoned in the sense aforesaid, is detrimental to property values; and

'WHEREAS, there are in operation in the City of Fort Wayne a great number of establishments where gasoline and/or diesel fuel are sold to motorists and where gasoline and/or diesel fuel is transferred from pumps into the fuel tanks of cars, trucks and/or other vihicles.

'NOW THEREFORE, BE IT ORDANIED BY THE COMMON COUNCIL OF THE CITY OF FORT WAYNE, INDIANA:

'SECTION 1. That for six months from and after the effective date of this Ordinance no building permits will be issued for the construction of establishments where gasoline and/or diesel fuel are sold to motorists and where gasoline and/or diesel fuel is transferred from pumps into the fuel tanks of cars, trucks and/or other vehicles.

'SECTION 2. The Board of Works of the City of Fort Wayne and the City Plan Commission of the City of Fort Wayne shall prepare a study of the conditions and criteria which shall govern the issuance of building permits for the construction from and after the expiration of the ban on the issuance of such permits provided in Section 1 of this Ordinance. In making such study the Board of Public Works shall determine those conditions and criteria which would tend to encourage the utilization of sites where such establishments have been constructed and abandoned in the sense that the owners have discontinued their use for the purpose of selling gasoline and/or diesel fuel to motorists or for any other purpose.

'SECTION 3. If any section, clause, sentence, paragraph, part or provision of this Ordinance shall be held invalid by any court, it shall be held invalid by any court, it shall be conclusively presumed that this Ordinance would have been passed by the Common Council without such invalid section, clause, section, paragraph, part or provision.

'SECTION 4. This Ordinance shall be in full force and effect from and after its passage and approval by the Mayor.'

On September 13, 1972, the moratorium on building permits for gasoline pumping stations was extended for an additional three months to December 13, 1972, by General Ordinance No. G--17--72; and on December 13, 1972, it was again extended for a period of three months to March 13, 1973, by General Ordinance No. G--20--72.

Thereafter, on January 18, 1973, Shell was advised by the Assistant Building Commissioner that although Shell had completed all necessary requirements to obtain a building permit, such permit would not issue due to the service station moratorium then in effect. As a result of this determination, plaintiffs-appellees Shell and Sharberg took an appeal to the Board of Zoning Appeals of the City of Fort Wayne (Board) on January 24, 1973. Following a hearing, the Board denied the appeal stating that it had no jurisdiction to reverse the decision of the Building Commissioner for the reason that such decision was not based upon a zoning ordinance. The Board's decision was filed on February 22, 1973. On March 9, 1973, Sharberg and Shell filed a petition for writ of certiorari with the Allen Circuit Court.

Subsequent to an agreement by the parties to submit the matter on the record and briefs, the trial court, on July 24, 1973, entered judgment which reads, in part, as follows:

'This matter having been under advisement, the Court now adopts the findings of facts as submitted by the Petitioners, and orders said findings of record as the findings of this Court.

'The Court now makes the following conclusions of law:

'1. The law is with the Petitioners, Shell Oil Company, and Sharberg Realty Corporation, and against the Respondent, Board of Zoning Appeals of the City of Fort Wayne, Indiana.

'2. That General Ordinance No. G--04--72 was not in full force and effect on March 10, 1973, when Petitioners filed for and were entitled to a building permit and said ordinance cannot be applied retroactively to defeat said building permit; therefore, the decision of the Board of Zoning Appeals in case no. 10--1973--Z is hereby reversed and said Board of Zoning Appeals is hereby ordered to reverse its findings and decision and to direct Building Commission of the City of Fort Wayne to issue said permit to the Petitioners on or before July 31, 1973.'

Thereafter, Board's motion to correct errors was overruled and the present appeal was perfected.

The first issue to be considered is whether defendant-appellant Board of Zoning Appeals had jurisdiction to review a decision by the Building Commissioner wherein a building permit was denied under the authority of General Ordinance No. G--04--72.

IC 1971, 18--7--5--82, Ind.Ann.Stat. § 53--778 (Burns 1964), provides, in pertinent part, 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.'

Board contends that it was without jurisdiction to review the decision of the Building Commissioner in this instance for the reason that the denial of a building permit resulted from the enforcement of an ordinance which had not been adopted pursuant to IC 1971, 18--7--5--58--18--7--5--68, Ind.Ann.Stat. §§ 53--756 to 53--766 (Burns 1964), as provided by IC 1971, 18--7--5--82, supra.

We do not, however, agree that the language of IC 1971, 18--7--5--82, supra, admits of such a construction. Rather, it must be concluded that the terms 'any ordinance or regulation adopted pursuant to sections 56 through 65 (§§ 53--756--53--766) of this act' refer to the master plan and ordinance together with any ordinances or regulations amendatory or supplemental thereto. We are not, therefore, principally concerned with the subject-matter of General Ordinance No. G--04--72 in a determination of the present question; and, it becomes unnecessary to classify it in this instance as a zoning ordinance or ordinance adopted pursuant to IC 1971, 18--7--5--82, supra. The single inquiry is whether the Building Commissioner is 'an administrative official or board charged with the enforcement' of the master plan and ordinance or any amendatory or supplemental ordinances enacted under the power delegated and in accordance with the procedures prescribed by IC 1971, 18--7--5--58 to 18--7--5--68, supra. That the Building Commissioner is such 'an administrative official' with such a duty is undisputed. See: Board of Zoning App., etc. v. LaDow et al. (1958), 238 Ind. 673, 153 N.E.2d 599. This being the case, we note that IC 1971, 18--7--5--55, Ind.Ann.Stat. § 53--753 (Burns 1964), provides, in pertinent part, 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.' (Emphasis supplied.)

Thus, conformity to 'the master plan and ordinance' will always be a prerequisite to the issuance of an improvement location permit or building permit. Viewed from a different standpoint, whenever a building permit is required the Board of Zoning Appeals automatically has jurisdiction to review the Commissioner's determination. The Board's jurisdiction is invoked by the requirement of a building permit. This is so because conformity to the master plan and ordinance is a prerequisite to obtaining a permit and because the master plan and ordinance which would thereby be enforced is within the meaning of the terms, 'ordinance or regulation adopted pursuant to * * * of this act', in IC 1971, 18--7--5--82, supra.

Since the determination of Board's jurisdiction to review any given appeal from the Building Commissioner is thus keyed upon the requirement of a building permit rather than the specific character of the law upon which the Commissioner relies, the necessity that the Board examine each ordinance upon which the Commissioner's decision may be...