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

• Decision Date: 30 October 1975
• Docket Number: No. 2--874A211,2--874A211
• Citation: 165 Ind.App. 212,336 N.E.2d 708
• 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 708

336 N.E.2d 708

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.

Oct. 30, 1975.

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

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

ON PETITION FOR REHEARING

BUCHANAN, Judge.

Bowmans' Petition for Rehearing chides us for failing to consider a substantial question raised by appellants in our opinion handed down July 31, 1975 (Bowman v. Metropolitan Board of Zoning Appeals of Marion County (1975) Ind.App., 331 N.E.2d 739). In our opinion we concluded there was substantial evidence to support the granting of a variance by the Metropolitan Board of Zoning Appeals of Marion County to change the use of the property in question from a special use classification to residential use. Appellants claim our decision failed to consider that a variance was also granted 'from the D1 requirements with respect to public street frontage and lot width requirements . . . although this was the most substantial question raised in the brief of appellants.'

While it is dubious if this 'substantial question' was separately specified in the Motion to Correct Error as required by Rule TR. 59(G), the Appellants' brief falls far short of complying with Rule AP. 8.3(A)(7).

Appellants in their brief make the bald assertion 'that there was a total failure of proof on the part of the Petitioners (Satz) with respect to the statutory requirements for the grant of a variance both in the case of the variance from special use to D1 and in the case of the variance from the D1 requirements.' But no cogent argument emerges at any point to support this contention.

Furthermore, from the record before us it would not be possible to determine if there was substantial evidence to support the granting of a 'variance from the D1 requirements with respect to public street frontage and lot width requirements' because there is no reference or indication in the record or in Appellants' brief as to the requirements in a D1 classification as to public street frontage and lot width requirements.

The Metropolitan Comprehensive Plan is an ordinance of which we may not take judicial notice.

In the Matter of Public Law No. 305 and Public Law No. 309 of the Indiana Acts of 1975, Ind., 334 N.E.2d 659 (1975); Indianapolis Traction and Terminal Co. v. Hensley (1917), 186 Ind. 479, 115 N.E. 934; McClurg v. Carte, Inc. (...