Carlton v. Board of Zoning Appeals of City of Indianapolis, 369S58

• Citation: 252 Ind. 56,245 N.E.2d 337
• Decision Date: 19 March 1969
• Docket Number: No. 369S58,369S58
• Parties: Robert CARLTON and Esther Carlton, Norma Harris and Hatsel Harris, Myra Schwartz and Louis Schwartz, Leon Cohen, August F. Hook, Trustee, Mrs. Glenn A. McClure, Lloyd D. Claycombe, Melvin Baird, Jr. and Beatrice Baird, Appellants, v. BOARD OF ZONING APPEALS OF the CITY OF INDIANAPOLIS et al., Appellees.
• Court: Supreme Court of Indiana

Page 337

245 N.E.2d 337

252 Ind. 56

Robert CARLTON and Esther Carlton, Norma Harris and Hatsel

Harris, Myra Schwartz and Louis Schwartz, Leon Cohen, August

F. Hook, Trustee, Mrs. Glenn A. McClure, Lloyd D. Claycombe, Melvin Baird, Jr. and Beatrice Baird, Appellants, v. BOARD OF ZONING APPEALS OF the CITY OF INDIANAPOLIS et al., Appellees.

No. 369S58.

Supreme Court of Indiana.

March 19, 1969.

Robert A. Claycombe, William D. Ruckelshaus, Indianapolis, for appellants.

Charles G. Castor, John P. Korbly, Indianapolis, for appellees.

DeBRULER, Chief Justice.

This case originated when the Appellees petitioned the Board of Zoning Appeals of Indianapolis for a variance of use in order to construct an apartment building on the property owned by the Appellees. The Board granted the variance over the objection of the Appellants. The Appellants obtained review by Writ of Certiorari in the Superior Court of Marion County, which court found the Board decision legal and affirmed the Board's granting of the variance. The Superior Court made findings of fact and conclusions of law which were reviewed by the Appellate Court and affirmed in Ind.App., 235 N.E.2d 503. The Appellants' petition for transfer to this Court is granted and the Appellate Court opinion is vacated.

The Appellants allege that the trial court decision was in error because the Board did not comply with certain statutory requirements and that the decision exceeded the authority of the Board to grant variances.

When the Board granted the variance of use to the Appellees, Burns' Ind.Stat.Ann § 53--969 controlled such grants and read in part as follows:

'The city and county board of zoning appeals and the metropolitan board of zoning appeals are hereby authorized to grant height, bulk, area and use variances in the manner hereinafter set forth. Both city or county board of zoning appeals and the metropolitan board of zoning appeals may grant petitions for variance in their entirety or in part only and upon such conditions as they may deem proper but only if such city or county board of zoning appeals or metropolitan board of zoning appeals, as the case may be, shall make the following determinations in writing, together with in the case of variances of use detailed written findings of face (fact) sufficient to support such determinations:

'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 adversely affected.

'3. The need for the variance arises from some condition peculiar to the property involved and does not exist in similar property in the same zone.

'4. The strict application of the terms of the ordinance will constitute an unusual and unnecessary hardship if applied to the property for which a variance is sought.

'5. The grant of the variance does not interfere with the metropolitan comprehensive plan adopted pursuant to sections 31 through 37 of this act: Provided that no zoning ordinance or ordinances classifying or restricting the use of or otherwise applicable to the property involved shall be considered to be a part of such metropolitan comprehensive plan. * * *' (Emphasis added.)

The minutes of the Board contained in the transcript show that the Board of Zoning Appeals made the following finding:

'Affidavit of publication and the serving of notice having been filed and made a part of the case and the board being duly advised in the matter finds:

(a) The grant will not be injurious to the public health, safety, morals and the general welfare of the community;

(b) The use or value of the area adjacent to the property involved will not be adversely affected;

(c) The need for the variance arises from some condition peculiar to the property involved and does not exist in similar property in the same zone;

(d) The strict compliance with the terms of the ordinance will constitute an unusual and unnecessary hardship if applied to the property for which a variance is sought.'

Thus, the record shows a finding by the entire Board of Zoning Appeals which contains only four of the five required determinations, the fifth determination concerning the metropolitan comprehensive plan being omitted. In spite of this the trial court entered this special finding of fact:

'12. The defendant board of zoning appeals of the City of Indianapolis, by and through its members voting in favor of the petition for variance, consisting of a majority of the said board, did make a determination in writing that the grant of a variance did not interfere with the metropolitan comprehensive plan since no zoning ordinance or ordinances classifying or restricting the use of or otherwise applicable to the property involved shall be considered to be a part of such metropolitan comprehensive plan.' (Emphasis added.)

The trial court was clearly in error in making this special finding.

The Appellees urge that we rely on three forms contained in the record which were apparently used for some purpose by the individual members of the Board. We set these forms out in full:

'INDIANAPOLIS BOARD OF ZONING APPEALS

VARIANCE NO. 614--64

FINDING OF FACTS ON PETITION FOR VARIANCE OF ZONING ORDINANCE

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

Yes 2. The use or value of the area adjacent to the property included in the variance will not be adversely affected because _ _

Yes 3. The need for the variance arises from some condition peculiar to the property involved and does not exist in similar property in the same zoning district because _ _

Yes 4. The strict application of the terms of the ordinance will constitute an unusual and unnecessary hardship if applied to the property for which a variance is sought because _ _

Yes 5. The grant of the variance does not interfere with the metropolitan comprehensive plan since no zoning ordinance or ordinances classifying or restricting the use of or otherwise applicable to the property involved shall be considered to be a part of such metropolitan comprehensive plan because _ _

Signature S/ C. Fleetwood

'INDIANAPOLIS BOARD OF ZONING APPEALS

VARIANCE NO. 614--64

FINDING OF FACTS ON PETITION FOR VARIANCE OF ZONING ORDINANCE

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

Y 2. The use or value of the area adjacent to the property included in the variance will not be adversely affected because _ _

Y 3. The need for the variance arises from some condition peculiar to the property involved and does not exist in similar property in the same zoning district because _ _

Y 4. The strict application of the terms of the ordinance will constitute an unusual and unnecessary hardship if applied to the property for which a variance is sought because _ _

5. The grant of the variance does not interfere with the metropolitan comprehensive plan since no zoning ordinance or ordinances classifying or restricting the use of or otherwise applicable to the property involved shall be considered to be a part of such metropolitan comprehensive plan because _ _

Signature S/ J. Earl Owens

'INDIANAPOLIS BOARD OF ZONING APPEALS

VARIANCE NO. 614--64

FINDING OF FACTS ON PETITION FOR VARIANCE OF ZONING ORDINANCE

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

Yes 2. The use or value of the area adjacent to the property included in the variance will not be adversely affected because _ _

Yes 3. The need for the variance arises from some condition peculiar to the property involved and does not exist in similar property in the same zoning district because _ _ Yes 4. The strict application of the terms of the ordinance will constitute an unusual and unnecessary hardship if applied to the property for which a variance is sought because _ _

Yes 5. The grant of the variance does not interfere with the metropolitan comprehensive plan since no zoning ordinance or ordinances classifying or restricting the use of or otherwise applicable to the property involved shall be considered to be a part of such metropolitan comprehensive plan because _ _

Signature S/ John F. Sullivan'

The Appellees argue that these three forms show that a majority of the Board made all five of the required written determinations and, therefore, did comply with the statute. However, even if we were to look to these individual forms, rather than to the finding of the entire Board, we do not believe that they clearly indicate that a majority of the Board voted 'yes' as to the presence of determination No. 5. On Mr. Owens' sheet there is a 'y' next to each determination except No. 5. Assuming the 'y' indicates a 'yes' vote on the determination next to it, there is no 'y' marked next to determination No. 5. We cannot infer how Mr. Owens voted on No. 5 in the absence of some indication of that vote. Mr. Owens' vote on No. 5 was critical since without him there were only two of the five Board members voting 'yes' on No. 5 and the absence of an indication of his vote cannot be a mere 'irregularity'. Appellees contend that Mr. Owens' signature on the bottom of one form indicates he voted 'yes' on all five determinations. We do not think that from the signature alone it can be inferred how the signor intended to vote on No. 5. The signature could have been intended merely to identify the author of the vote on determinations one through four. From the record we cannot say what significance these forms had for the individual members nor for the entire Board because we are not advised of the internal operating procedure of the Board. That is why we rely on the finding of the entire Board set out in the minutes of the Board rather than these forms which have a significance unknown to us.

The trial...