City of Evansville v. Reis Tire Sales, Inc.
| Decision Date | 15 September 1975 |
| Docket Number | No. 1--1274A188,1--1274A188 |
| Citation | 165 Ind.App. 638,333 N.E.2d 800 |
| Parties | CITY OF EVANSVILLE, Indiana, et al., Defendants-Appellants, v. REIS TIRE SALES, INC., et al., Plaintiffs-Appellees. |
| Court | Indiana Appellate Court |
John C. Cox, Timothy R. Dodd, Cox, Schroeder, Dodd, Mitchell, Terry & Appell, Evansville, for appellants.
Edward W. Johnson, Johnson, Carroll & Griffith, Evansville, for appellees.
The City of Evansville, defendants-appellants, appeals from the judgment of the trial court which held a portion of a City zoning ordinance unconstitutional as applied to property owned by plaintiff-appellees (Reis).
The issue upon appeal is whether sufficient evidence was presented to support the trial court's ruling that sections of the City zoning ordinance unconstitutionally restricted use of the Reis property.
We affirm for the reasons stated hereafter.
Reis, as owner of a parcel of vacant real estate located in a subdivision of Evansville, filed an application for a rezoning of the real estate from single family residential to multi-family residential. The application was considered and recommended by the Area Plan Commission but denied by the Evansville Common Council.
Reis then filed suit in superior court asking that the court issue a declaratory judgment declaring that the property may be legally used for multi-family dwellings and that the Evansville-Vanderburgh Building Commission be mandated to issue a building permit for such use. On November 5, 1973, the case was tried to the court without intervention of a jury.
Evidence was presented at trial that a portion of the real estate sought to be rezoned contains a substantial ravine that has been partially filled in over a period of years by dirt fill, waste from a rock quarry, fill from a tire sales and recapping operation and some broken pottery. Testimony was given to the effect that the site could be used for construction purposes but the nature of the terrain and fill would cause the construction costs to be more expensive than average since foundation footings would have to be set below the fill and substantial grading and earth moving would have to be done prior to the start of construction.
In light of the increased costs of developing the property, witnesses testified that it would be preferable to use the land for apartment buildings because of the increased return from rental properties as opposed to single family dwellings. These factors prompted Reis to make his application to have the property rezoned from exclusively single family to multi-family residential use.
The City introduced evidence to the effect that location of apartment buildings on the property would create a safety hazard due to increased traffic in an otherwise single-family residential area.
The court entered judgment for Reis holding that the zoning ordinance as it applied to the real estate was an unconstitutional taking of property in violation of Sections 21 and 23 of Article 1 of the Constitution of Indiana and the Fifth and Fourteenth...
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Metropolitan Development Com'n of Marion County v. I. Ching, Inc.
...in City of Anderson v. Associated Furniture & Appliances, Inc., (1981) Ind., 423 N.E.2d 293, and City of Evansville v. Reis Tire Sales, Inc., (1975) 165 Ind.App. 638, 333 N.E.2d 800. It is true that, in both of these cases, landowners were allowed to challenge zoning ordinances as unconstit......
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Taylor-Chalmers, Inc. v. Board of Com'rs of LaPorte County
...v. State ex rel. Dep't of Natural Resources (1979), 180 Ind.App. 94, 102, 387 N.E.2d 455, 461; City of Evansville v. Reis Tire Sales, Inc. (1975), 165 Ind.App. 638, 641, 333 N.E.2d 800, 802. In such cases this Court has held that a distinction must be drawn between an assertion that a parce......
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City of Anderson v. Associated Furniture & Appliances, Inc.
...ordinance was a taking of the real estate in violation of the constitution. Appellee relied upon City of Evansville v. Reis Tire Sales, Inc., (1975) 165 Ind.App. 638, 333 N.E.2d 800, 801-802 which states Zoning is a proper exercise of the police powers of the state. Town of Homecroft v. Mac......
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Vanderburgh County Bd. of Com'rs v. Rittenhouse
...burden placed upon private property by zoning ordinances constitutes a confiscation or taking." City of Evansville v. Reis Tire Sales, Inc. (1975), 165 Ind.App. 638, 641, 333 N.E.2d 800, 801 (citing Board of Zoning Appeals v. Schulte (1961), 241 Ind. 339, 172 N.E.2d 39), and so the Rittenho......
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Constitutional wish granting and the property rights genie.
...of her parcel rendered all of these uses impractical. Id. at 136, 141. Similarly, in City of Evansville v. Reis Tire Sates, Inc., 333 N.E.2d 800 (Ind. App. 1975), the enforcement of a single family residential zoning ordinance against a property owner was held to constitute a taking because......