Braughton v. Metropolitan Bd. of Zoning Appeals, Marion County, Division Four

• Decision Date: 04 May 1970
• Docket Number: No. 1,No. 868,868,1
• Citation: 257 N.E.2d 839,146 Ind.App. 652
• Parties: Charles W. BRAUGHTON, Marie Braughton, Louis W. Wetzel, Bertha W. Wetzel, Willie E. Guffy, Eunice E. Guffy, Appellants, v. METROPOLITAN BOARD OF ZONING APPEALS, MARION COUNTY, DIVISION FOUR, William T.Harper, Mrs. William T. Harper, Sinclair Oil & Gas Co., John W. Chittenden, Robert J. Cook, Troye E. Hollowell, Appellees. A 139
• Court: Indiana Appellate Court

Page 839

257 N.E.2d 839

146 Ind.App. 652

Charles W. BRAUGHTON, Marie Braughton, Louis W. Wetzel Bertha W. Wetzel, Willie E. Guffy, Eunice E Guffy, Appellants, v. METROPOLITAN BOARD OF ZONING APPEALS, MARION COUNTY DIVISION FOUR, William T.Harper, Mrs. William T Harper, Sinclair Oil & Gas Co., John W. Chittenden, Robert J. Cook, Troye E. Hollowell, Appellees.

No. 868 A 139.

Appellate Court of Indiana, Division No. 1.

May 4, 1970.

Rehearing Denied June 2, 1970.

See 258 N.E.2d 866.

Scott Ging, Dongus, Ging, Stein & Cregor, Indianapolis, for appellants.

James C. Courtney, Indianapolis, for appellees.

SULLIVAN, Judge.

The action below reviewed, by writ of certiorari, the granting of a zoning variance to appellees, William T. and Mrs. Harper, by the Metropolitan Board of Zoning Appeals of Marion County, (hereinafter referred to as the Board). The Harpers had been granted a variance of use by the Board authorizing the construction of a gasoline service station upon a certain tract of land located upon the southwest corner at South Meridian Street and Southport Road in Marion County. The Superior Court of Marion County affirmed the decision of the Board.

Appellants maintain that the court below erred in affirming the decision of the Board for two reasons. First, appellants contend that appellees, Harpers, failed at the hearing before the Board to establish by sufficient evidence the five statutory prerequisites for the granting of a variance. At the time of the petition for variance in 1967, the five statutory prerequisites for the granting of a zoning variance were as follows:

'1. The grant will not be injurious to the public health, safety, morals, and general welfare of the community.

'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.

'3. The need for the variance arises from some condition peculiar to the property involved and such condition is not due to the general conditions of the neighborhood.

'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.

'5. The grant of the variance does not interfere substantially with the metropolitan comprehensive plan adopted pursuant to sections 31 through 37 of this act.' Ind.Acts 1955, ch. 283, § 69, as last amended by Acts 1965, ch. 434, § 17, and as found in Ind.Stat.Anno. § 53--969 (Burns' 1969 Supp.) ¹

Second, appellants contend that the Board previously had denied a variance for the same use of the same property and that no showing was made by the Harpers that there was any interim change in circumstances. It is argued in this connection that absent a showing of changed circumstances the Board is precluded from altering or overruling its prior decision.

THERE IS SUFFICIENT EVIDENCE TO

SUSTAIN THE GRANTING OF THE VARIANCE

Appellants contend first that the Harpers failed to present sufficient evidence to sustain the five statutory prerequisites for the granting of a variance and more specifically that no evidence was presented that the use of land sought would not substantially and permanently impair the appropriate use of adjoining property. In this regard, appellants cite Board of Zoning Appeals of the City of Indianapolis v. American Fletcher National Bank and Trust Co. (1965), 139 Ind.App. 9, 205 N.E.2d 322, as authority for the proposition that each prerequisite for a variance of use must be unequivocally present. Appellants accordingly submit that the second statutory prerequisite for a variance as hereinbefore set forth was not unequivocally established by substantial evidence.

Appellants fail to appreciate the distinction between the denial of a variance and the granting of a variance. See Metropolitan Board of Zoning Appeals of Marion County v. Standard Life Insurance Co. of Indiana (1969), Ind.App., 251 N.E.2d 60. In order to obtain reversal of a zoning board order which, as in the American Fletcher National Bank case, supra, denies a variance, an appellant must show that all of the five statutory prerequisites have been established as a matter of law, i.e., are unequivocally present. Metropolitan Board of Zoning Appeals of Marion County v. Standard Life Insurance Co. of Indiana, supra. The standards for judicial review where the Board has granted a variance, as in the case at issue, however, are significantly different. See R. J. Realty, Inc. v. Keith (1969), Ind.App., 250 N.E.2d 757. In order to reverse an order of a board which grants a variance, an appellant must show that the quantum of legitimate evidence was so proportionately meagre as to lead to the conviction that the finding and decision of the Board does not rest upon a rational basis. Warren v. Indiana Telephone Company (1940), 217 Ind. 93, 26 N.E.2d 399. In other words, when a Board grants a variance, in order to obtain a reversal, an appellant must show that at least one of the five statutory prerequisites is not supported by substantial evidence of probative value. Therefore, in this case, our examination must focus upon the question as to whether there is substantial evidence of probative value to support each of the five statutory prerequisites hereinabove set forth and more specifically whether there is substantial evidence of probative value to support the second statutory prerequisite.

Appellants contend that the only evidence presented to the Board tending to fulfill the statutory requirements was the testimony of the Harpers' attorney. They argue further that he could scarcely be expected to be disinterested and detached. Although we recognize that a petitioner's attorney may not be totally distinterested, we hold that the mere fact that the evidence upon which the Board bases its decision is so presented, is not in-and-of itself of such consequence as to warrant a finding by a reviewing court that one or more of the statutory prerequisites are not supported by substantial evidence of probative value. We commented on this problem in Metropolitan Board of Zoning Appeals of Marion County v. Standard Life Insurance Co. of Indiana, supra, as follows:

'Hearing procedures are remarkably liberal concerning those factors and matters which might be considered by zoning boards. The competence and persuasiveness of a presentation to a board as well as the thoroughness of the board's own consideration of the issues are necessarily restrained if not prohibited by very real time limitations placed upon petitioners, remonstrators and members of the board. See generally 1 Indiana Legal Forum, 398. Hearsay evidence, unsupported factual and legal conclusions, and speculation are no doubt encouraged, if not required by the great number of zoning matters to be determined by the board at a given session.' 251 N.E.2d 60, 62 at footnote 3.

We hold that there is substantial evidence of probative value to support the five statutory prerequisites. More specifically with respect to the second statutory prerequisite, there was evidence presented that the value of the area adjacent to the property for which variance was sought would not be affected in a substantially adverse manner. There was...