Board of Zoning Appeals of City of Indianapolis v. Wheaton

• Decision Date: 09 January 1948
• Docket Number: 17682.
• Citation: 76 N.E.2d 597,118 Ind.App. 38
• Parties: BOARD OF ZONING APPEALS OF CITY OF INDIANAPOLIS et al. v. WHEATON et al.
• Court: Indiana Appellate Court

76 N.E.2d 597

118 Ind.App. 38

BOARD OF ZONING APPEALS OF CITY OF INDIANAPOLIS et al. v. WHEATON et al.

No. 17682.

Appellate Court of Indiana, in Banc.

January 9, 1948

Appeal from Superior Court, Marion County; Ralph Hamill Judge.

Arch N. Bobbitt, Harvey A. Grabill and Charles C. Baker, all of Indianapolis, for appellants.

Barnes Hickam, Pantzer & Boyd and Lester Irons, all of Indianapolis, for appellees.

HAMILTON Judge.

This is an action instituted by the appellees, on behalf of themselves and all other resident property owners similarly situated, against the appellants in the Superior Court of Marion County, Room 5, for a writ of certiorari pursuant to the provisions of § 48-2305, Burns' 1933, to review the decision of the Board of Zoning Appeals of the City of Indianapolis in granting appellant, Most Reverend Paul C Schulte, Archbishop of Indianapolis, a permit to build a combination unit, or project, consisting oa Catholic Church, priests' mansion, a convent, or sisters' home, school, and off-street parking facility on the vacant ground located at 301 to 359 East 57th Street, Indianapolis, Indiana.

Appellees' petition alleged that the decision of the Board of Zoning Appeals in granting such permit was illegal. The court decided that the decision of the Board of Zoning Appeals was legal in all respects and should be sustained and affirmed in whole, except that it should be modified to the extent that the grade school building may be erected and used as such providing no living quarters are maintained in connection therewith and permission to construct said 'sisters' residence' be denied. The court found that the building designated as the 'sisters' residence' in connection with the school would be in violation of the general zoning ordinance, as amended.

The only question presented for our consideration is the correctness of the trial court's decision in modifying the decision of the Board of Zoning Appeals so as to forbid the erection of the sisters' home as a component part of the proposed unit project above described.

Section 1 and § 2 of General Ordinance No. 75, duly enacted by the common council of the city of Indianapolis, amended §§ 2 and 3 of General Ordinance No. 114, enacted in 1922, to read in part as follows:

'Section 1. That Group 1--Residence Classes of Section 2 of General Ordinance No. 114, 1922 (as amended), be and the same is hereby amended to read as follows:

'Group 1--Residence Classes

'Class U-1 Uses: (Dwelling Houses)

'(1) Dwelling

'(2) Church

'(3) Grade or high school with no living quarters maintained and not operated for pecuniary profit; * * * community center building.'

'Section 2. That Section 3 of General Ordinance No. 114, 1922 (as amended), be and the same is hereby amended to read as follows:

'Sec. 3. Dwelling House District (a) In a Class U1 or dwelling house district, no building or premises shall be used, and no building shall be erected, altered or used which is arranged, intended or designed to be used for other than a U1 use. (b) In a dwelling house district no building shall be erected, altered or used which is arranged, intended or designed for a use enumerated in subdivisions (2), (3), (4) or (5) of Class U1 uses, unless such building is located: * * *

'(3) 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.'

Other pertinent provisions of the zoning ordinance and statute read in part as follows:

'Sec. 22. Enforcement. Board of Zoning Appeals. The City Plan Commission is hereby constituted a Board of Zoning Appeals for the purpose of this ordinance. * * * Where there are practical difficulties or unnecessary hardships in the way of carrying out the strict letter of the provisions of this ordinance, the Board of Zoning Appeals shall have the power in a specific case to vary any such provision in harmony with the general purpose and intent so that the public health, safety and general welfare may be secured and substantial justice done.'

'Sec. 23. District Exceptions. The Board of Zoning Appeals may in a specific case, after public notice and hearing and subject to appropriate conditions and safeguards, determine and vary the application of the district regulations herein established in harmony with their general purpose and intent as follows: * * *

'(3) Permit in a district any use or building deemed by the Board to be in general keeping with and appropriate to the uses or buildings authorized in such district or existing on neighboring property. * * *

'(6) Permit in a dwelling house or apartment house district the location on any lot, lots or tract * * * bounded on at least three sides by streets not less than 40 feet in width of any use authorized in a business district provided such use in such location is so conditioned and restricted as to adequately safeguard the appropriate use of neighborhood property.'

Section 48-2304, Burns' 1933, provides for the creation of the Board of Zoning Appeals, defines its duties and procedure upon appeal. Said section contains the following language:

'Such board of zoning appeals shall 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 this act, and shall permit and authorize exceptions to and variations from the district regulations in the classes of cases or in particular situations specified in such ordinance, and they shall hear and try all matters referred to them or upon which they are required to pass under any such ordinance of the common council adopted pursuant to this act. * * *

'Where there are practical difficulties or unnecessary hardship in the way of carrying out the strict letter of such ordinance, the board of zoning appeals shall have power, in passing upon appeals, or petitions for variance from district regulations to vary or modify any of the rules, regulations or provisions of such ordinance so that the spirit of the ordinance shall be observed, public welfare secured or substantial justice done.'

The application for a variation from the requirements of the zoning ordinance was filed on the 25th day of January, 1946. After notice duly given and served as required by ordinance and the rules of procedure of the Board of Zoning Appeals, a public hearing was held on February 4, 1946, and at the conclusion thereof, the board made the following finding and decision, to wit:

'The Board, being fully advised in the matter, finds that these proposed improvements will substantially serve the public convenience and welfare and will not substantially or permanently injure the appropriate use of neighboring property, and therefore, approves the petition, subject to the following provisions:

'All construction must be in accordance with the plans on file in this office and subject to all provisions of the Building Code.

'The parking area shall be treated with a dust palliative.'

It is well settled law in this state that the power and discretion to vary the provisions of the zoning ordinance rest in the sound discretion of the Board of Zoning Appeals which is the administrative agency created by the legislature for the purpose of administering the zoning law, and that this discretionary power of the board is not subject to review by a court, except upon the ground of illegality in whole or in part. Board of Zoning Appeals v. Moyer, 1940, 108 Ind.App. 198, 208, 27 N.E.2d 905, 909; Board of Zoning Appeals v. Waintrup, 1935, 99 Ind.App. 576, 584, 193 N.E. 701; Keeling v. Board of Zoning Appeals, 1946, Ind.App., 69 N.E.2d 613, 917.

Furthermore, our Supreme Court has said that courts will not assume the duties of ministerial fact finding bodies but will only intervene where the ministerial officer or board has acted unlawfully, arbitrarily, or unreasonably. Smith v. Lippman, 1944, 222 Ind. 261, 53 N.E.2d 157.

Tested by the foregoing rules, did the trial court err in holding that subsection (3) of § 1 of General Ordinance No. 75 must be construed literally, and when so construed, it forbids the building of a 'convent', or 'sisters' home' as a component part of a Catholic Church and school unit in a district classified by such zoning ordinance as a 'residential district' for the reason that such 'sisters' home' constitutes living quarters maintained in connection with a school?

The undisputed testimony in the trial court was to the effect that it is the plan of the Catholic Church to take care of the needs of both body and soul of individuals and that since the beginning of the Church in the United States, when a Catholic church was established, a school was also established as soon as possible; that there were 24 Catholic churches and schools in the city of Indianapolis and that in each instance with one exception, wherever there was a church, there was also a school. The evidence...