Board of Zoning Appeals of City of Indianapolis v. Moyer

• Decision Date: 17 June 1940
• Docket Number: 16393.
• Citation: 27 N.E.2d 905,108 Ind.App. 198
• Parties: BOARD OF ZONING APPEALS OF CITY OF INDIANAPOLIS v. MOYER et al.
• Court: Indiana Appellate Court

27 N.E.2d 905

108 Ind.App. 198

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

No. 16393.

Appellate Court of Indiana, in Banc.

June 17, 1940

Edward H. Knight, Michael Reddington, and Carl H. Weyl, all of Indianapolis, for appellant.

Joseph & Dann, of Indianapolis, and Thos. B. Millikan, of New Castle, for appellees.

CURTIS Judge.

On October 19, 1938, the appellees William F. Moyer et al being all the appellees other than appellees Edward E. Tyner Mattie V. Lee (formerly Mattie V. Glenn), and Edward C Yount, filed their petition in the Marion Superior Court which petition reads as follows (we omit formal parts and certain other parts not material to an understanding of the questions presented):

"Plaintiffs complain of the defendants and by way of petition for writ of certiorari say: That plaintiffs and each of them are aggrieved by a certain decision of the defendant Board of Zoning Appeals. That the defendant Board of Zoning Appeals was duly created and constituted by Ordinance No. 114, 1922, passed by the Common Council of the city of Indianapolis, and that said city of Indianapolis was authorized by statute to regulate and restrict the location of trades, callings and commercial enterprises, to classify said city into zones or districts and to regulate and restrict the use of the real estate so classified and to provide such regulations and requirements as to height and area of buildings so as to preserve the public health, comfort, safety and welfare. That said Ordinance No. 114 was approved on or about December 4, 1922, and became effective December 22, 1922, and that said Ordinance with certain amendments not material here is now in full force and effect."

"That said Zoning Ordinance No. 114, 1922, divided the real estate within the city of Indianapolis into zones or districts and provided for the regulation and restriction of the uses to which such real estate should be put within said zones and districts. That plaintiffs and each of them separately owned real estate along and about East Maple Road and between Washington Boulevard on the west and Ruckle Street on the east, and that all of said real estate is within the city of Indianapolis, Marion County, Indiana. That said district has been and is now zoned under the terms and provisions of said Ordinance No. 114, 1922, as a U2 or Apartment House district. That the defendant Edward E. Tyner is now the owner of the following described real estate: The west end of Lots 1 and 2 in Wacema Place, an addition to the city of Indianapolis, Marion County, State of Indiana, which said real estate is located at 447 East Maple Road and which said location is in the same neighborhood as and within close proximity to the real estate owned by plaintiffs and that said real estate owned by defendant Edward E. Tyner is in the same U2 or Apartment House district as plaintiffs' real estate."

"That defendant Edward E. Tyner is threatening to use and occupy said real estate hereinabove described as a funeral home and undertaking establishment, and that such use is a U3 or business use of said real estate, which is prohibited and made unlawful within said U2 or Apartment House district under and according to the terms of said Ordinance No. 114, 1922. That the defendant Edward E. Tyner claims the right and authority to use said real estate as a funeral home by reason of a decision of the defendant, Board of Zoning Appeals, for the review of which decision plaintiffs have petitioned herein. That said decision of the Board of Zoning Appeals was rendered September 19, 1938. That said decision, which was assigned number 158-V-38 in the records of said Board of Zoning Appeals, is wholly illegal upon the following grounds:"

"(1) That the application for variation from the requirements of the Zoning Ordinance was signed and executed by one Edward C. Yount, who was neither the owner, lessee, tenant or occupant nor interested in any manner whatsoever in the real estate described in said application for variance. That said Edward C. Yount has not used or occupied said real estate for a funeral home and does not now intend so to use or occupy said premises. That said defendant Board of Zoning Appeals, by and through its Secretary-Engineer, under date of September 20, 1938, communicated in writing with said Edward C. Yount as follows:" (We omit this communication for the reason that no question is made as to it and it simply notified Yount that the Board of Zoning Appeals had granted the permission for the variance asked for.) "But that said Edward C. Yount has never accepted nor acted upon the permission granted him to occupy said premises at 447 East Maple Road for a funeral home, and that defendant Edward E. Tyner is now claiming the right and authority to use said premises as a funeral home on the basis of the permission granted by defendant, Board of Zoning Appeals, to Edward C. Yount, so to use and occupy the same."

"(2) That by the provisions of the statute governing petitions for variances and under and pursuant to the provisions of said Ordinance No. 114, 1922, defendant Board of Zoning Appeals was granted power to vary or modify the rules, regulations and provisions of said Ordinance where a particular case presented practical difficulties or unnecessary hardship in carrying out the strict requirements of such ordinance. That the application for variance filed with the defendant Board of Zoning Appeals by said Edward C. Yount, presents no practical difficulty nor unnecessary hardship, and that for said further reasons said decision of the defendant Board of Zoning Appeals is wholly illegal and improper."

"(3) That under the provisions of the statute governing petitions for variances and under Ordinance No. 114, 1922, defendant Board of Zoning Appeals was granted power in a particular case of practical difficulty or unnecessary hardship to vary or modify the rules, regulations or provisions of said ordinance so that the spirit of said ordinance should be observed, public welfare secured and substantial justice done. That the application for variance filed with the defendant Board of Zoning Appeals in the within case presents no facts showing that the granting of a variance to use the premises at 447 East Maple Road for a funeral home is an observance of the spirit of the Zoning Ordinance nor a means of securing public welfare or doing substantial justice. That in truth and in fact the decision of the defendant Board of Zoning Appeals granting a variance to use the premises at 447 East Maple Road for a funeral home is in violation of the spirit of the Zoning Ordinance and will interfere with and endanger public welfare, health, safety and morals."

"Wherefore, plaintiff prays for judgment against the defendants and that a writ of certiorari be issued against the defendant Board of Zoning Appeals, requiring it to certify to this court for review all proceedings of said Board of Zoning Appeals in connection with the application for a variation filed with said Board by one Edward C. Yount and assigned No. 158-V-38 in the records of said Board, and that upon a consideration and review of such proceedings and a hearing of oral testimony that the action of said Board of Zoning Appeals in granting a variance upon said application be reversed and overruled, and for all other proper relief in the premises." (Here follows proper verification which we omit.)

On the same day the court duly issued its writ of certiorari in said matter. On October 27, 1938, the appellant filed its demurrer to the said petition, alleging therein that the said petition for a writ of certiorari does not state facts sufficient to constitute a cause for issuing a writ of certiorari. The memorandum filed with the demurrer is as follows:

"(1) Under the Zoning Ordinance and the state statutes an application for variance of the Zoning Ordinance need not be signed by the owner, lessee, tenant or occupant of the real estate. It may be signed by an agent of the owner or some other interested person."

"(2) The petition shows on its face that it is an attempt to induce the court to review discretionary acts of the Board of Zoning Appeals and not for the purpose of determining the legality of its action."

"(3) The petition shows on its face that it is an attempt to induce the court to assume the discretionary power of the Board of Zoning Appeals to vary or modify a provision of the zoning ordinance, which power is vested in the Board alone and not in the courts." "(4) The petition does not show on its face that the Board of Zoning Appeals acted illegally in performing a discretionary duty under the Zoning Ordinance."

"(5) The petition shows on its face that there was no illegality in any of the acts or procedure of the Board of Zoning Appeals in the hearing on the petition for a variance of the Zoning Ordinance."

"(6) The petition for writ of certiorari fails to allege the facts showing that the decision of the Board of Zoning Appeals is illegal in whole or in part and does not specifically name grounds of illegality."

"(7) The allegations in the petition that the action of the Board of Zoning Appeals in granting the variance was illegal and improper are mere conclusions of the pleader and are not allegations of facts showing illegality on the part of the Board."

The court overruled said demurrer with an exception duly reserved by the appellant whereupon the appellant was ruled to answer the petition. The return to said writ contained a transcript of all of the proceedings had before the board together with all orders, entries, files and papers in its possession touching upon or...