Chico Corp. v. Delaware-Muncie Bd. of Zoning Appeals

• Decision Date: 31 July 1984
• Docket Number: DELAWARE-MUNCIE,No. 2-882A243,2-882A243
• Citation: 466 N.E.2d 472
• Parties: CHICO CORPORATION, Appellant (Petitioner below), v.BOARD OF ZONING APPEALS, (whose true identity is Delaware-Muncie Metropolitan Board of Zoning Appeals), Riverside-Normal City Neighborhood Assn., Inc., David A. Taylor, Melvin O. Wilson, Raney Kent Irwin, Joseph C. Mumpower, Leo Mench, Martha Sue Gaylor, Robert D. Gaylor, and Betty Raines, Appellees (Respondents below).
• Court: Indiana Appellate Court

Page 472

466 N.E.2d 472

CHICO CORPORATION, Appellant (Petitioner below), v. DELAWARE-MUNCIE BOARD OF ZONING APPEALS, (whose true

identity is Delaware-Muncie Metropolitan Board of Zoning

Appeals), Riverside-Normal City Neighborhood Assn., Inc.,

David A. Taylor, Melvin O. Wilson, Raney Kent Irwin, Joseph

C. Mumpower, Leo Mench, Martha Sue Gaylor, Robert D. Gaylor,

and Betty Raines, Appellees (Respondents below).

No. 2-882A243.

Court of Appeals of Indiana,

Second District.

July 31, 1984.

William F. Lemond, Indianapolis, George E. Purdy, Greenwood, for appellant.

John M. Feick, Robert S. Koor, Muncie, for appellees.

SHIELDS, Judge.

Plaintiff-appellant Chico Corporation (Chico) appeals the trial court's judgment in favor of defendant-appellee Delaware-Muncie Board of Zoning Appeals (BZA). Chico raises two issues on appeal:

1) whether the trial court's judgment is based on erroneous findings of fact, and

2) whether the trial court's judgment upholding the application of the Student Social Service district zoning performance standards to Chico's property constitutes an unconstitutional taking of property.

Judgment affirmed.

On April 3, 1981, the Administrative Zoning Officer for Muncie refused to issue Chico a permit to remodel the interior of a residence for the purpose of housing members of a fraternity. The residence is in a Student Social Service Zoning District (SSS), a zoning classification which permits fraternities and sororities, single and two-family dwellings, and buildings owned and operated by a college, university, or institution of higher learning. The improvement permit was refused because the lot on which the residence is located is less than one acre, the front setback is less than seventy-five feet, and the side yards are less than twenty-five feet, as required by SSS zoning performance standards.

The denial of the improvement permit was appealed by Chico to the Delaware-Muncie Metropolitan Board of Zoning Appeals; the Board of Zoning Appeals upheld the denial of the improvement permit. Chico filed a Petition for Writ of Certiorari which was granted by the Delaware Circuit Court. The court issued findings of fact, conclusions of law, and a judgment in favor of BZA.

I.

The first issue raised by Chico is whether the judgment is contrary to law in that it is based on erroneous findings of fact. Chico claims the following findings are erroneous and, therefore, cannot be considered by this court as support for the trial court's judgment: ¹

"8) That 900 Beechwood is within an SSS zone, is located near the campus of Ball State University and the Zone conatins [sic] 13 sororities and fraternities and various single-family and two-family dwellings, the surrounding area being generally residential. 9) That ... [Chico] was aware of the restrictions contained in the zoning ordinance applicable to fraternities and sororities in an SSS zone at the time of purchase."

Record at 377.

When the trial court makes special findings we affirm the judgment unless we are satisfied those findings are clearly erroneous. The trial court's judgment is Finding eight is not clearly erroneous. A reasonable reading of finding eight (8) is the trial court used the word "area" to describe the neighborhood surrounding the SSS zone rather than the zone itself. The evidence is the particular SSS zone in which the subject property is located covers a 2 by 3 block area which is surrounded by residentially zoned areas. In fact, the professional appraiser employed by Chico reported to Chico the "neighborhood is mainly one and two family dwellings with scattered apartment buildings, and several social fraternal organizations." Record at 92.

set aside only in instances where the evidence is without conflict and can lead to but one result and the trial court has reached an opposite conclusion. City of Anderson v. Associated Furniture, (1981) Ind., 423 N.E.2d 293.

Similarly, finding nine, that Chico was aware of the restrictions contained in the zoning ordinance at the time of purchase, is correct. Persons are charged with knowledge of the law, including the content of zoning ordinances. See State ex rel. Marich v. Lake Superior Court, (1980) 273 Ind. 590, 407 N.E.2d 233. Thus, Chico "knew" of the applicable performance standards, and, consequently, the trial court's finding nine is correct.

II.

Chico claims the enforcement of the SSS performance standards with respect to its property constitutes an unconstitutional taking because the performance standards are arbitrary and capricious in that they exceed the legitimate scope of the police power.

The party challenging the constitutionality of an otherwise valid enactment bears the burden of persuasion in the trial court and on appeal. Shettle v. McCarthy, (1981) Ind., 423 N.E.2d 594. An ordinance is clothed with a presumption of reasonableness that casts upon the objector the burden of proving the performance standard bears no substantial relationship to the health, safety, or welfare of the community, or is unreasonable, arbitrary, or capricious. Goldblatt v. Town of Hempstead, New York, (1962) 369 U.S. 590, 594, 82 S.Ct. 987, 990, 8 L.Ed.2d 130; Houser v. Board of Commissioners of County of DeKalb, (1969) 252 Ind. 312, 247 N.E.2d 675; Hills v. Area Plan Commission of Vermillion County, (1981) Ind.App., 416 N.E.2d 456, 457.

The evidence presented by Chico consists of the following: Less than thirteen (13) acres in close proximity to the campus of Ball State University are zoned SSS; none of the thirteen (13) fraternity houses which exist within the SSS zoned areas comply with all six developmental standards. ² The particular SSS zone in which the subject property is located covers a 2 by 3 block area surrounded by residentially zoned areas. Nine (9) fraternities have houses in this area which predate the enactment of the subject ordinance. Of the nine, three (3) fail to comply with the acreage standard, five (5) fail to comply with the front yard standard, and only one (1) complies with the side yard standard. The block in which the subject property is located contains three (3) residences used by one fraternity, one (1) boarding house, and the subject property, previously used as a single family residence. The one (1) fraternity in the block does not comply with the front and side yard standards.

The residence in question is located on a corner lot, has a side yard of nineteen feet to the abutting sidewalk of Pauline Street on the east, a sixty-seven foot side yard to the west with a four-foot-high board fence separating it from the adjoining property, a thirty-three-foot front yard set back, and a sixty-foot backyard. The lot contains .3345 acres. The residence can be adapted to all the requirements of the Administrative Building Council of Indiana, the Indiana State Fire Marshal, and the Indiana Board of Health.

Before the purchase of the subject property, Chico obtained a professional appraiser's report which stated Chico's proposed use of the subject property was legal, was its highest and best use, and was one of the uses permitted in the SSS zone.

Chico concedes a zoning ordinance which bears a reasonable relationship to the public health, safety, morals or general welfare of a community constitutes a legitimate exercise of the police power. Village of Euclid v. Amber Realty, (1926) 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303. However, it is Chico's position the evidence fails to establish this relationship. We disagree.

In examining the evidence we use a three stage approach: 1) was the exercise of the police power justified? 2) if so, is there a rational relationship between the justifiable end and the means used? and 3) if yes, are the means (i.e., the regulations) reasonable?

A. Exercise of Police Power

Our first inquiry is whether the evidence reveals the exercise of the police power was justified. It does.

For example, the remonstrators testified:

"We now are faced with parking problems, (not audible) existing parking problems. Every night there is a party, there are cars parked on both sides of the road, they are parked illegally. It's too much, the police are called, it's too much to call them every time, every night ... to come out and remove the cars. One other thing is the litter, beer cans, trash cans, anything that can be disposed of, from a fast food operation or whatever."

Record at 99.

"There is one other point I did neglect and that's the noise aspect, and we do have a tremendous amount of noise, and this noise doesn't quit at 11:00 o'clock. It goes on to midnight and sometimes 2:00 o'clock in the morning. My wife and I have a young child, 6 months, 7 months old, and I don't think it's very conducive to growing up a child in that neighborhood."

* * *

"It will intensify. It will have to.

* * *

"Well, you will have more people. There's nothing, there's more noise, there's nothing to say that because it is, as the application is applied for, 24 students in the dormitory that there is not going to be 90 people using the facility, and when they do that, if it's a fraternity meeting or whatever, it's 90 more people however many active members they have.

* * *

"All right, customarily they have more people there on a regular basis than actually live in the place."

Record at 100, 109.

"They [fraternity hours] are irregular to my hours, and I think that most of the people that live in the neighborhood.

"One, I am aware of the problems created by fraternities and I'm speaking generally. I've heard the shouting and the singing most all night, many nights, have been bothered by the loud music and have even notified the campus police and asked them to do something about it. I have observed drunkenness, drunken conduct, and have heard obscenities shouted in the neighborhood. I've seen beer cans and bottles, papers, and so forth scattered throughout the area and not picked up. I've been unable at times to park in my own drive, because of the Record ...