City of South Bend v. Marckle

• Decision Date: 31 January 1939
• Docket Number: 27032.
• Citation: 18 N.E.2d 764,215 Ind. 74
• Parties: CITY OF SOUTH BEND et al. v. MARCKLE et al.
• Court: Indiana Supreme Court

18 N.E.2d 764

215 Ind. 74

CITY OF SOUTH BEND et al. v. MARCKLE et al.

No. 27032.

Supreme Court of Indiana

January 31, 1939

Appeal from Superior Court, St. Joseph County; J. Fred bingham judge.

Edwin W. Hunter and Harry S. Taylor, both of South Bend, for appellants.

Seebirt Oare & Deahl, of South Bend, for appellees.

SHAKE Judge.

The appellees instituted this proceeding under our Uniform Declaratory Judgments Act (Ch. 81, Acts 1927, § 3-1101 et seq., Burns' Ann.St.1933, Sec. 438 et seq., Baldwin's 1934). The complaint is in a single paragraph and alleges in substance that the appellees are the owners of three contiguous lots located at the southeast corner of the intersection of Diamond Avenue and Lincoln Way West in the City of South Bend, Indiana; that said city has a general zoning ordinance, which is set out in full in the complaint and which purports on its face to have been adopted pursuant to chapter 225, Acts of 1921, and the act amendatory thereof. (§ 48-2301 et seq., Burns' 1933.) It is alleged that the appellees' lots are classified for residential purposes by said ordinance; that said Lincoln Way West has approximately 9,940 feet of abutting property, 40% or more of which is classified and used for commercial purposes including drug stores, grocery stores, garages, filling stations, a brewery, and other business enterprises, and is a paved thoroughfare approximately 60 feet in width; that it carries double tracks of an electric street railway, and is a part of U.S. Highway 20, over which flows constant traffic, including heavy trucks. It is further charged that said zoning ordinance was subsequently amended so as to authorize the use of other real estate situated at said intersection for commercial purposes, although appellees' real estate continues to be restricted to residential uses; that appellees desire to unite in the mutual use of their real estate for the purpose of erecting thereon a filling station, or, in the alternative, to sell said properties to a purchaser who may wish to use them for commercial purposes; that said real estate is not suited for residential purposes, and that it would be worth from four to six times as much if open to commercial uses; that said ordinance constitutes a taking of appellees' property without just compensation, in violation of section 21 of article 1 of the State Constitution, and the Fourteenth Amendment to the Federal Constitution, U.S.C.A. The complaint also states that the appellees presented a petition to the city planning commission and the common council of said city, asking that said properties be reclassified so as to permit commercial uses; that no protest was filed by any property owner in opposition to said petition; that notwithstanding, said planning commission recommended in writing that said classification be not changed, and that the common council arbitrarily and unreasonably discriminated against the appellees and refused said requested reclassification. The complaint concludes with a prayer that said zoning ordinance be declared unconstitutional insofar as it restricts or relates to the use of the appellees' real estate, and for all other proper relief.

The appellants demurred to the complaint for want of facts. The demurrer was overruled and this is assigned as an independent error. The memorandum accompanying the demurrer asserts that the allegations as to the unconstitutionality of the ordinance are insufficient, and that the complaint is also bad because it fails to show that any appeal was taken to the board of zoning appeals, or that certiorari was requested of the circuit court.

Following the ruling on the demurrer, the cause was put at issue by an answer in general denial; there was a jury trial, resulting in a general verdict for the appellees; and the court thereupon pronounced judgment on the verdict to the effect that said zoning ordinance is unconstitutional and void, insofar as it applies to the real estate described in the complaint. This appeal followed, and we shall first consider the sufficiency of the complaint.

Section 48-2303, Burns' 1933, Sec. 11656, Baldwin's Ind.St.1934, provides that the owners of 50% or more of the frontage on any street within any zoned district may petition the common council to amend, supplement, or change the regulations prescribed for such district or part thereof. When such a petition is filed the council is required to vote thereon within 90 days. The complaint does not allege a compliance with this section. It is not shown that the petition referred to in the complaint was signed by the owners of any of the frontage on Diamond Avenue or Lincoln Way West other than the appellees, or that appellees owned 50% or more of said frontage. The allegations with reference to the appellees' petition to the city planning commission and the city council do not aid the complaint and may therefore be regarded as surplusage. $In section 48-2304, Burns' 1933, Sec. 11657, Baldwin's Ind.St.1934, it is provided, among other things, that the 'board of zoning appeals shall 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 this act, and shall permit and authorize exceptions to and variations from the district regulations in the classes of cases or in particular situations specified in such ordinance, and they shall hear and try all matters referred to them or upon which they are required to pass under any such ordinance of the common council adopted pursuant to this act'. Said section further provides that 'where there are practical difficulties or unnecessary hardship in the way of carrying out the strict letter of such ordinance, the board of zoning appeals shall have power, in passing upon appeals, or petitions for variance from district regulations to vary or modify any of the rules, regulations or provisions of such ordinance so that the spirit of the ordinance shall be observed, public welfare secured or substantial justice done'. The zoning ordinance of the city of South Bend provides that 'where there are practical difficulties or unnecessary hardships in complying strictly with the provisions of this ordinance, the Board of Zoning Appeals may, in specific cases, adjust any such condition in harmony with the general purpose and intent of this ordinance so that the public health, safety and general welfare may be secured and substantial justice done'.

There are no allegations in the complaint to the effect that appellees ever took or attempted to take any appeal to the board of zoning appeals, or that they ever sought a writ of certiorari from the circuit court. We recall that in oral argument before the bar of this court counsel for the appellees assumed the position that the statute above quoted had been so interpreted by our Appellate Court as to preclude relief to appellees by way of appeal to the board of zoning appeals. We do not so construe the cases.

In Civil City of Indianapolis v. Ostrom Realty, etc., Co., 1931, 95 Ind.App. 376, 176 N.E. 246, it was held that a board of zoning appeals had no authority to release certain lots from the building restrictions imposed by a zoning ordinance in the absence of an appeal by an administrative official or board charged with the enforcement of the ordinance, or a petition for a variance from an interested property owner. It was further held that the statutory provisions fixing the jurisdiction of boards of zoning appeals do not authorize such boards to rezone an entire city block under the guise of a variance. The opinion points out that where any considerable change is to be made in a zoning code it must be done by ordinance. The rules announced are not applicable to the case at bar.

O'Connor v. Overall Laundry, Inc., 1932, 98 Ind.App. 29, 183 N.E. 134, presented a situation where a lessee applied to a building commissioner for permission to remodel a structure. When permission was denied an appeal was taken to the board of zoning appeals. After hearing the evidence the board likewise denied the petition. An application for a writ of certiorari followed, and the superior court reviewed and set aside the decision of the board. The cause was properly reversed by the Appellate Court for the reason that the relief sought by the lessee was specifically prohibited by the terms of the zoning ordinance. The court made it clear, however, that upon a petition for certiorari a court may reverse the decision of a board of zoning appeals that is illegal or contrary to law.

Board of Zoning Appeals of the City of Indianapolis v Waintrup, 1935, 99 Ind.App. 576, 193 N.E. 701, likewise involved a situation where a property owner applied to a board of zoning appeals for a variance from the requirements of a zoning ordinance. Upon the denial of a petition there was an application for a writ of certiorari to the circuit court which heard the case and set aside the order of the board. The petition for certiorari stated three grounds for invoking the jurisdiction of the court. First: That the strict enforcement of the requirements of the zoning ordinance to the premises would result in a practical difficulty and unnecessary hardship on the appellee. Upon a consideration of this proposition the opinion of the Appellate Court correctly points out that this assignment sought a review of the exercise of a discretionary power of the board and that such discretionary action, unless illegal, is not subject to review. Second: It was charged that the action of the board in denying the appeal and application for a variance was arbitrary, capricious, unreasonable, contrary to law, and not warranted by the facts....