City of East Chicago, Ind. v. Sinclair Refining Co.

Decision Date27 March 1953
Docket NumberNo. 28794,28794
PartiesCITY OF EAST CHICAGO, IND. v. SINCLAIR REFINING CO.
CourtIndiana Supreme Court

John F. Haller, City Atty., East Chicago, David Cohen, Present City Attorney, East Chicago, Loyd J. Cohen, East Chicago, Winslow Van Horne, Auburn, Willard B. Van Horne, J., East Chicago, of counsel, for appellant.

Joseph J. Wasko and Allen P. Twyman, East Chicago, Eugene M. Hines, Chicago, Ill., Donald K. McIntosh, Chicago, Ill., and Hays & Hays, Indianapolis, of counsel, for appellee.

BOBBITT, Judge.

Appellee has continously, since the year 1916, owned and operated within the limits of appellant city an industrial plant for the manufacture and refining of petroleum products. In September of 1919 appellee purchased additional land adjacent to its plant and referred to in the complaint herein as Parcel No. 1 containing 8.118 acres, and Parcel No. 2 containing 24.244 acres, for the sole and only purpose of industrial use in connection with the development and expansion of its industrial plant. The exact location of said Parcels 1 and 2 in relation to surrounding property is best shown by appellee's (plaintiff's) Exhibit 21, which is an aerial photograph of the two parcels of land and abutting and surrounding lands and buildings.

On December 26, 1929 appellant city adopted a zoning ordinance which, by its provisions, classified appellee's Parcel No. 1 for light industrial use and Parcel No. 2 for single-family dwellings. This ordinance was amended in November of 1946 and by this amendment the use classification of Parcel No. 2 was changed from one-family dwellings to two-family dwellings.

Appellee made no effort to use said land until 1945 when it requested of appellant that the restrictions on Parcel No. 2 be changed so as to permit the construction of laboratory buildings, which request was denied. Appellee now desires to erect and construct tanks for the storage of petroleum products on Parcel No. 2, and either such tanks or a railway car and equipment repair shop on Parcel No. 1.

It instituted this action for declaratory judgment to determine the force and effect, if any, of said amendatory zoning ordinance as it relates to the rights of appellee in and to the use of said two parcels of land.

Trial was by the court. Special findings of fact and conclusions of law were requested. Upon the facts specially found the trial court concluded that said ordinance 'insofar as it restricts the use' of the two parcels described in the complaint was void because it violated Art. 1 of Sec. 21 of the Constitution of Indiana, and Sec. 1 of the Fourteenth Amendment to the Constitution of the United States; that it was without regard to public health, safety, morals and general welfare insofar as it restricted the use of appellee's two parcels of land, and that said ordinance was not enacted for any of the purposes set out in the statute and was unreasonable insofar as it restricted the use of the two parcels of land to the uses therein defined because 'said lands are best suited for heavy industrial use'. Judgment was entered declaring the ordinance 'void and of no force and effect insofar as the same affects the use for other than heavy industrial purposes of the plaintiff's [appellee's] land,' as described in the complaint.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

The sole error here assigned is the overruling of appellant's motion for a new trial. This motion contains thirty-two separate specifications, the first of which is as follows:

'1. The court erred in overruling the defendant's motion for a finding filed at the close of the plaintiff's evidence, which motion was in words and figures as follows, to-wit:

"At the close of plaintiff's case, and without prejudice to the right of the defendant to offer and introduce evidence in defense thereof, the defendant moves that the court make and enter a finding for the defendant for each of the following reasons, to-wit:

"1. The plaintiff has not offered any evidence sufficient to sustain a right to a declaratory judgment;

"2. The plaintiff has not offered any evidence sufficient to establish the authority of this court to entertain this cause;

"3. The plaintiff, by its chief executive officer appearing in this cause has admitted that plaintiff seeks only a re-classification of the zoning of its property and has not proved that any petition for relief from the terms of Ordinance number 2449, as set forth in the complaint herein was filed with or presented to the Board of Zoning Appeals of the defendant city;

"4. The plaintiff has not offered sufficient evidence to sustain any allegation of general invalidity of said ordinance 2449 and has not proved that any petition for relief from the classification, zoning, and/or restrictions of said ordinance in regard to the property described in plaintiff's complaint was presented to or filed with the Board of Zoning Appeals of the defendant city; * * *."

This motion raised a question of the jurisdiction of the subject matter of the particular case, which was not waived by the subsequent presentation of evidence by appellant (defendant).

Twelve other reasons are stated in support of the motion, but in view of the conclusion which we have reached we shall confine ourselves to a consideration only of the ones quoted above.

Appellant contends that since appellee sought only to have said ordinance declared unconstitutional and void as it affected and applied to its two parcels of land, it should have pursued and exhausted the administrative remedy provided by statute and the ordinance before seeking a determination of its rights in the courts.

Appellee contends that where the factual situation discloses that there has been a violation of constitutional rights, or that the exercise of the police power is clearly unreasonable, or where it is clearly shown that there is no real relation between the ordinance and its professed object, resort may be had to the courts to test the validity of the ordinance as it applies to one or more parcels of land, without first exhausting any administrative remedies which may be available and adequate.

Appellant relies upon City of South Bend v. Marckle, 1939, 215 Ind. 74, 18 N.E.2d 764, to support its position.

That was also an action for a declaratory judgment seeking to declare a zoning ordinance of the city of South Bend, Indiana, unconstitutional insofar as it restricted or related to appellees' real estate. Appellees there sought to use certain real estate which was zoned for residential use for the purpose of building a filling station thereon or, in the alternative, to sell said property to a purchaser to be used for commercial purposes. The complaint inter alia alleged that the real estate was not suited for residential purposes and that its value for commercial use would be four to six times greater than for residential use; and that the ordinance constituted a taking of appellees' property without just compensation in violation of section 21 of article 1 of the Indiana Constitution, and the Fourteenth Amendment to the Constitution of the United States.

The overruling of appellants' demurrer in the Marckle case was assigned as an independent error. The memorandum accompanying the demurrer asserted that the complaint was bad because it failed to show that any appeal was taken to the Board of Zoning Appeals or that certiorari was requested of the Circuit Court.

This court, at pages 82, 83 of 215 Ind., at page 767 of 18 N.E.2d, said:

'Summarizing the opinions of the Appellate Court in the Ostrom 1 and O'Connor 2 cases and in the Waintrup 3 case, as herein distinguished, supra, we find that they are authority for the following rules: (1) A court will not review an exercise of the discretionary powers of a board of zoning appeals unless, of course, there is a clear abuse of discretion; (2) an appeal to the circuit court by way of certiorari is authorized when the board had acted illegally, and this is true even though the illegality arises out of a violation of the petitioner's constitutional rights, so long as it is not claimed that the entire zoning ordinance is invalid; and (3) where it is claimed that the entire zoning ordinance is void the remedy is not by resort to certiorari, but may be asserted by direct action. Applying the rules stated, it is apparent that the appellees have misconceived their remedy. They are not concerned with a modification of the terms of the ordinance as they apply to the district in which their properties are situated, so there was no occasion for them to ask an amendment thereof by the common council. They claim only that the ordinance, in its application to them, is unreasonable, in that the classification of their real estate for residential rather than commercial uses, deprives them of valuable property rights without due process or just compensation. Their properties are shown to be located at the boundary of a zone district. Their case comes within the terms of that part of section 48-2304 Burns 1933, § 11657 Baldwin's 1934, which authorizes the board of zoning appeals to adjust conditions so as to prevent unnecessary hardships. Their complaint should have been directed, in the first instance, to the board of zoning appeals, and if that did not avail, they should have asked a review in the circuit court by way of certiorari.'

We think the rules asserted by this court in City of South Bend v. Marckle, 1939, 215 Ind. 74, 18 N.E.2d 764, supra, are sound and in keeping with the recognized orderly procedure in the law of zoning.

Acts 1947, ch. 174, § 77, p. 571, § 53-778, Burns' 1951 Replacement, provides:

'The board of zoning appeals shall:

'1. Hear and determine appeals from and review any order, requirement, decision or determination made by an administrative official or board charged with the enforcement of any ordinance or regulation adopted pursuant to sections 56...

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