Carlton v. Board of Zoning Appeals of City of Indianapolis
| Decision Date | 08 April 1968 |
| Docket Number | No. 1,No. 20735,20735,1 |
| Citation | 235 N.E.2d 503,142 Ind.App. 463 |
| Parties | Robert CARLTON et al., Appellants, v. BOARD OF ZONING APPEALS OF CITY OF INDIANAPOLIS et al., Appellees |
| Court | Indiana Appellate Court |
Claycombe & Claycombe, William D. Ruckelshaus, Indianapolis, of counsel, for appellants.
Charles G. Castor, Bulen & Castor, Michael B. Reddington, John F. McCann, Jr., John P. Korbly, Indianapolis, for appellees.
This is a review of a decision of the Superior Court of Marion County, Indiana, affirming the granting of a variance by the Board of Zoning Appeals of Marion County. The appellees filed a petition for variance and after approval by the Board of Zoning Appeals, the appellants filed an amended petition for certiorari and the court issued its writ to which writ the Board of Zoning Appeals made its return. The trial court made findings of fact and stated its conclusions thereon, deciding the issues against the appellants and affirming the decision of the Board of Zoning Appeals. To this action, appellants filed a motion for a new trial which was overruled and which action is amended as error for our consideration.
The appellants alleged in their petition for certiorari and urged in the trial court and in this court that the Board of Zoning Appeals failed to make detailed written findings of fact and failed to make a determination in writing that the grant of variance did not interfere with the Metropolitan Comprehensive Plan as required by law. The trial court made specific findings that the Board had met the requirements of law regarding these two matters.
Acts of 1959, ch. 380, § 25, p. 1033, being § 53--969, Burns' 1964 Replacement, provides as follows:
Judge Hunter, speaking for this court in Board of Zoning Appeals v. American Fletcher Nat. Bank & Trust Co. (1965), Ind.App., 205 N.E.2d 322, at page 324, in reversing a decision of the trial court which had granted a variance denied by the Zoning Board, stated:
'(E)ach cause in § 53--969, supra, for a variance must be unequivocally present, giving wide construction to the total of the evidence introduced both before the Board and that given before the trial court, * * *'
We feel that in order to determine that question in this case before us, it is necessary that we set out the findings by the Board which were reviewed by the trial court and measure them in light of the statute, supra, and of the decisions heretofore handed down by this court to determine whether or not the action of the Board met the required tests.
'INDIANAPOLIS BOARD OF ZONING APPEALS
'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
'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
'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 court below doubtless observed the three members who voted in favor of the variance also signed findings of fact in the case. We are not aware of any statutory or procedural requirement which requires any board member to put a 'Yes' or a 'Y' in front of each of the findings to which his signature is affixed. If there is any significance to the failure of Mr. Owens to put a 'Y' or a 'Yes' next to Item 5, it can only constitute an irregularity, and not an illegality.
Based upon the foregoing record, the trial court entered its Finding 6 as follows:
;
and its Special Finding 12 as follows:
In entering the above findings, the trial court had before it the signature of J. Earl Owens on the Board findings of fact. The trial court did not consider it material that there was no 'Y' or 'Yes' next to Item 5 of the findings of Mr. Owens. The trial court regarded the findings and the determination entered in the cause by the Board of Zoning Appeals to be in substantial compliance, and as exhibiting a good faith effort to conduct a fair and reasonable hearing.
It is the general rule that courts and inclined to treat defects that are not plainly jurisdictional as irregularities rather than illegalities. See Board of Zoning Appeals of the City of Indianapolis v. Moyer et al. (1940), 108 Ind.App. 198, 27 N.E.2d 905, 910, wherein the court stated:
'An illegality within the meaning of the statute under consideration goes to the foundation of the action and discloses that the proceedings have nothing to stand upon while an irregularity denotes that the board had jurisdiction of the proceedings but failed to consummate its work in all respects according to the forms prescribed.' (Emphasis supplied)
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