Bowman v. Metropolitan Bd. of Zoning Appeals of Marion County, Division III

• Decision Date: 31 July 1975
• Docket Number: No. 2--874A211,2--874A211
• Citation: 331 N.E.2d 739,165 Ind.App. 212
• Parties: Forrest B. BOWMAN, Jr., and Linda K. Bowman, Appellants (Petitioners below), v. METROPOLITAN BOARD OF ZONING APPEALS OF MARION COUNTY, DIVISION III, et al., Appellees (Respondents below).
• Court: Indiana Appellate Court

Page 739

331 N.E.2d 739

165 Ind.App. 212

Forrest B. BOWMAN, Jr., and Linda K. Bowman, Appellants (Petitioners below), v. METROPOLITAN BOARD OF ZONING APPEALS OF MARION COUNTY DIVISION III, et al., Appellees (Respondents below).

No. 2--874A211.

Court of Appeals of Indiana, Second District.

July 31, 1975.

Richard Kammen, Martz, Bowman & Kammen, Indianapolis, for appellants.

David F. Rees, Deputy Corp. Counsel, F. Keith Leach, Faust & Joyce, Indianapolis, for appellees.

BUCHANAN, Judge.

CASE SUMMARY

This is an appeal by Petitioners-Appellants Forrest B. and Linda K. Bowman (Remonstrators) from a trial court judgment affirming a decision of the Metropolitan Board of Zoning Appeals of Marion County, Division III, (the Board), which granted a variance from Special Use zoning classification to residential use of Indianapolis real estate owned by Respondents-Appellees Arnold K. and Carol F. Satz (Satz). The Remonstrators claim that the Board's decision was not supported by substantial evidence.

We affirm.

FACTS

The facts and evidence most favorable to the judgment are:

Satz owned three unimproved lots (each measuring 425 feet by 390 feet) on West 83rd Street in Indianapolis, which he had purchased from the Alverna Retreat House, being excess land not on public frontage and not necessary for accessory use by the Retreat House. Satz agreed 'not to destroy the ecology and surrounding aesthetic values.' The surrounding classified area was predominantly D--1 and D--2 and some A--2.

On September 10, 1973, Satz petitioned the Board for a variance from the existing Special Use classification (the Alverna Retreat House) and to construct three single family residential homes. Satz testified that the homes which he would construct would be compatible to the surrounding area, and in fact would meet a zoning D--1 classification, which requires higher standards than some other property in the area.

Remonstrators testified that drainage and access problems would be created by granting this variance.

To help relieve this drainage problem in the neighborhood, Satz installed drain pipes which were authorized and inspected by two members of the Marion County Flood Control Board to assure proper drainage.

Satz testified further that his effort 'has been to protect the aesthetic value and the ecology of the area . . . (and) that he would protect the tranquility of the area.' Moreover, Satz declared that because of the nature of the area, the construction of 'three high quality homes' would not be seen nor heard by the Remonstrators.

Various charts, plans and maps relating to the application for a variance were considered by the Board.

The staff of the Division of Planning and Zoning recommended approval of Satz' variance and, following a hearing, the Board granted Satz' variance on October 23, 1973, and made the following Findings of Fact as required by IC 1971, 18--7--2--71, Ind.Ann.Stat. § 53--969.

'1. The grant of the variance will not be injurious to public health, safety, morals, and general welfare of the community because: its use is for single family residences which follows the comprehensive plan for this area;

'2. The use or value of the area adjacent to the property included in the variance will not be affected in a substantially adverse manner because: the entire area is residential and these tracts will conform and/or exceed the standards in the area;

'3. The need for the variance arises from some condition peculiar to the property, and such condition is not due to the general conditions of the neighborhood because: special use zoning does not permit residences;

'4. The strict application of the terms of the ordinance will constitute an unusual and unnecessary hardship if applied to the property for which the variance is sought because: special use zoning does not permit residences;

'5. The grant of the variance does not interfere substantially with the Metropolitan Comprehensive Plan because: the Comprehensive Plan proposes residential use for the area.'

ISSUE

One issue is presented:

Is there substantial evidence to support the Board's granting of the variance?

The Remonstrators assert that there was a total failure of proof to support Findings One, Three and Four of the statutory requirements for the granting of a variance.

Satz argues the reverse.

DECISION

CONCLUSION--It is our opinion that the trial court did not err in finding that there was substantial evidence of probative value to support the Board's Findings One, Three and Four for the granting of the variance.

This case is reminiscent of Metropolitan School District of Washington Township v. Jansen (1973), Ind.App., 302 N.E.2d 541, decided by this court in October of 1973, wherein we observed:

'The effect of appellants' argument is to say that the evidence they submitted in opposition to the petition is more substantial than that evidence in support of the petition. This court, however, may not weigh the evidence submitted to the Board nor substitute its judgment for that of the Board. Our review is limited to whether there is any substantial evidence of probative value which is competent as the foundation for the decision of the Board. Suess v. Vogelgesang (1972), Ind.App., 281 N.E.2d 536, 30 Ind.Dec. 385; Vogelgesang v. Shackelford (1970), 146 Ind.App. 248, 254 N.E.2d 205, 20 Ind.Dec. 50.' 302 N.E.2d at 543.

Other cases in recent years have embraced the principle that an appellant appealing the propriety of granting a variance is required to show 'that the quantum of legitimate evidence was so proportionately meager as to lead to the conviction that the finding and decision of the Board does not rest upon a rational basis'; or differently stated, that in order to reverse the granting of a variance, the appellant must show that at least one of the five statutory prerequisites was not supported by substantial evidence of probative value. See, Metro. Dev. Com'n. of Marion Cty. v. Camplin (1972), Ind.App., 288 N.E.2d 569; Metro. Dev. Com'n. of Marion Cty. v. Bicknell (1972), Ind.App., 280 N.E.2d 861; Speedway Bd. of Zon. App. v. Standard Concrete Materials (1971), 150 Ind.App. 363, 276 N.E.2d 589; Metro. Dev. Com'n. v. Troy Realty, Inc. (1971), 150 Ind.App. 213, 275 N.E.2d 845; Braughton v. Metro. Bd. of Zon. App. (1970), 146 Ind.App. 652, 257 N.E.2d 839, 258 N.E.2d 866; Vogelgesang v. Shackelford (1970), 146 Ind.App. 248, 254 N.E.2d 205; Warren v. Indiana Telephone Co. (1940), 217 Ind. 93, 26 N.E.2d 399.

So we examine Findings One, Three and Four to determine if there was substantial evidence of probative value to sustain each of these findings.

1. Finding One--the grant of the variance will not be injurious to public health, safety, morals, and general welfare of the community.

There was evidence before the Board that the granting of the variance would not have a detrimental effect on the surrounding area.

Satz testified that the homes which he would construct would be compatible to the surrounding area, and in fact would generally meet a zoning D--1 classification . . . a higher standard than some other property in the area. Satz declared that because of the nature of the area, his construction of 'three high quality homes' would not be seen nor heard by the Remonstrators. Moreover, there would be no injury to the public health and general welfare of the area as Satz installed drain pipes, which were authorized and inspected by two members of the Marion County Flood Control Board, to assure proper drainage in the neighborhood.

Satz believed that his overall efforts protected 'the aesthetic value and the ecology of the area.'

Thus there was substantial evidence of probative value that there would be no injury to the public health and safety of the community.

Courts have previously affirmed the granting of variances where the variance requested arguably came closer to a threat to the public health and safety than in the present case. See, Jansen, supra, 302 N.E.2d 541 (variance granted for a convenience shopping center from a zoning classification for a school); Troy Realty, Inc. supra, 275 N.E.2d 845 (variance granted for gasoline service station from a multifamily residential zoning); Braughton, supra, 257 N.E.2d 839 (variance granted for a gasoline service station from a residential zoning classification); Bicknell, supra, 280 N.E.2d 861 (variance granted for...