Board of Zoning Appeals of the City of Indianapolis v. Waintrup

• Decision Date: 23 January 1935
• Docket Number: 15,018
• Citation: 193 N.E. 701,99 Ind.App. 576
• Parties: BOARD OF ZONING APPEALS OF THE CITY OF INDIANAPOLIS v. WAINTRUP
• Court: Indiana Appellate Court

193 N.E. 701

99 Ind.App. 576

BOARD OF ZONING APPEALS OF THE CITY OF INDIANAPOLIS v. WAINTRUP

No. 15,018

Court of Appeals of Indiana

January 23, 1935

From Marion Circuit Court; Earl R. Cox, Judge.

Petition for writ of certiorari by Joseph D. Waintrup to review a decision of the Board of Zoning Appeals of the City of Indianapolis refusing to vary the zoning ordinance so as to permit petitioner's use of property within a residence zone for business purposes. From a judgment for petitioner the Board appealed.

Reversed.

Edward H. Knight, James E. Deery, and Albert Stump, for appellant.

J. C Hoffman, amicus curiae.

OPINION

SMITH, C. J.

Appellee applied to the building commissioner of the city of Indianapolis for permission to use certain premises at 3710 North Meridian Street in the city of Indianapolis for the purpose of displaying a sign on the building, and for the displaying and sale of furniture on said premises. These premises were located in the district set aside by an ordinance duly passed by the city council of the city of Indianapolis for residence and apartment use, known as class U-2.

Appellee sought to use these premises for business purposes, as above indicated, but was denied this privilege by the building commissioner of the city of Indianapolis; and thereupon filed his appeal and petition with the board of zoning appeals for the city of Indianapolis, the appellant herein, asking the zoning board to vary the ordinance so as to permit him to use said premises for said purposes.

After a hearing, the appellant denied appellee this privilege, and refused to vary the ordinance so as to permit appellee to use the premises for said purposes. Thereafter the appellee filed a petition in the Marion circuit court of Marion county, Indiana, for a writ of certiorari to review the action of the board of zoning appeals. The writ was issued, and thereafter appellant filed a demurrer to the petition which was overruled and exception reserved. The appellant then filed a return to the writ of certiorari, and in compliance therewith the record of the board of zoning appeals was certified to the Marion circuit court. Upon the record consisting of the writ of certiorari and the return thereto, the issues were formed, and the cause was submitted to the court for trial. A general finding was made for the appellee, and judgment entered modifying the decision and order of the board of zoning appeals so as to permit the appellee to use said premises for business purposes, as set forth in his petition; and the ordinance of the city of Indianapolis ordered to be varied so as to permit said use of said premises by the appellee. Judgment was also rendered against the appellee for costs.

The appellant seasonably filed its motion for a new trial which was overruled. The errors assigned for reversal are: "1. That the court erred in overruling the demurrer to the appellee's complaint. 2. That the court erred in overruling the motion for a new trial for each of the reasons stated in said motion."

We shall first discuss the questions raised upon the demurrer, and set out the substance of the petition and the demurrer thereto.

The petition alleges in substance that prior to the first day of April, 1932, the appellee leased from one Rosanna Wood for the term of five years certain real estate in the city of Indianapolis, Marion county, Indiana, being parts of lots 45, 46, 47, and 48 in Lazarus and Coleman's Harvard Place addition to the city of Indianapolis, together with the residence thereon, known as 3710 North Meridian Street in said city; that the said real estate is situated in the residence and apartment house district as provided by the zoning ordinance of the city of Indianapolis; that appellee resides in said district, and is engaged in selling furniture by sample; that prior to the first day of April, 1932, by and with the consent of the building commissioner of the city of Indianapolis, the appellee caused to be attached to the front of such residence an electric sign, and subsequently thereto, and before the first day of April, 1932, he was notified by the building commissioner that said sign should not be used, and that said premises should not be used for the purpose of displaying furniture samples and the sale of furniture therefrom; that on the first day of April, 1932, appellee filed with the board of zoning appeals of the city of Indianapolis his appeal from the decision of said building commissioner, and an application asking for a variance, so far as the same applied to said premises, from the requirements of the zoning ordinance of the city of Indianapolis, being general ordinance 114-1922 of said city, so that the same might be used for the displaying of furniture samples and the sale of same therefrom, and to permit the use of said electric sign on said building; that appellee also filed written consent of Rosanna Wood, the owner of the title to the real estate, authorizing him to file said appeal and application; that said application was set for hearing by the board of zoning appeals, and due notice thereof given, as required by law; that upon the hearing the board of zoning appeals denied appellee's appeal and application for variance as prayed; that the decision of the board of zoning appeals denying said appeal and application for variance is illegal for the following reasons: (1) That the strict enforcement of the requirements of the zoning ordinance to said premises will result in a practical difficulty and unnecessary hardship upon appellee, and it is in violation of the acts of the general assembly, chapter 125 of the Acts of 1925; (2) that the action of the board in denying the appeal and application for variance was arbitrary, capricious, unreasonable, and contrary to law, and not warranted by the facts; (3) that the use for which appellee intended said premises, when conducted under proper regulations, such as the board of appeals, under said ordinance, might have required, would be in keeping with the general purpose and intent of said ordinance, and would not disturb the public health, safety, and general welfare of the community in which said premises are located, and that the denial of said appeal and application for variance would result in depriving appellee of his rights in and to said real estate without due process of law, and just compensation, in violation of the 14th amendment of the Constitution of the United States, and of the Constitution of the State of Indiana, sec. 21, art. 1; (4) that the denial of said appeal and application for variance and the strict enforcement of said ordinance as to said premises for apartment house or residence use is discriminatory, and against the rights of appellee, and in violation of his rights under the Constitution of the United States, and section 21, article 1 of the Constitution of the State of Indiana as above-mentioned. Then followed a prayer that a writ of certiorari be issued, and that the court review the proceedings of the board of zoning appeals, and hear additional evidence of the facts pertinent to said application for variance and the allegations of illegality; and that the court set aside or modify the decision of the board of zoning appeals in such manner as will permit the reasonable use of the premises as prayed for by appellee.

Upon said petition a writ of certiorari was issued to which a return was made by appellant. After the writ was served, appellant filed its demurrer alleging the insufficiency of the petition to constitute a cause for issuing a writ of certiorari with memoranda thereto which are as follows:

"1. 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 their action.

"2. The petition shows 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, the power to do which is vested in the Board alone and not in the courts.

"3. The petition does not show on its face an illegality of action on the part of the Board of Zoning Appeals and proceeds solely against the exercise of their discretion.

"4. 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 petitioner's application for a variance of the Zoning Ordinance.

"5. The petition shows on its face that the application to the Board of Zoning Appeals is a request for a rezoning and not for an adjustment under the Zoning Ordinance and therefore refers to a matter the control over which is vested solely in the Common Council of the city. The petition shows that the application is for a permit to conduct a business in an area or district zoned for residential purposes. The change petitioned for is from a U-2 to a U-3 use.

"6. The petition on its face clearly shows that the relief prayed for is one beyond the power of the Board of Zoning Appeals to grant and therefore also without the power of the court to review."

It will be borne in mind that in these proceedings appellee asks to have the appellant, as the board of zoning appeals of the city of Indianapolis, vary the general zoning ordinance theretofore passed by the city council, so as to permit him to use the premises described for business purposes.

The zoning ordinance places these premises in the residence and apartment district, and the purpose of these proceedings is to require the board of zoning appeals to vary the ordinance so as to permit the appellee to conduct a business therein. Upon a hearing by the board of zoning appeals the application for variance was denied.

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