O'Connor v. Overall Laundry, Inc.

• Decision Date: 23 November 1932
• Docket Number: No. 14319.,14319.
• Citation: 98 Ind.App. 29,183 N.E. 134
• Parties: O'CONNOR et al. v. OVERALL LAUNDRY, Inc., et al.
• Court: Indiana Appellate Court

98 Ind.App. 29

183 N.E. 134

O'CONNOR et al.

v.OVERALL LAUNDRY, Inc., et al.

No. 14319.

Appellate Court of Indiana, in Banc.

Nov. 23, 1932.

Appeal from Superior Court, Marion County; Joseph Williams, Judge.

Certiorari proceedings by the Overall Laundry, Inc., and another, to review a decision of George T. O'Connor and others, constituting the board of zoning appeals of the city of Indianapolis. From a judgment of the superior court setting aside the decision of the board of zoning appeals, the respondents appeal.

Judgment reversed with instructions.Edward H. Knight and Claycombe & Stump, all of Indianapolis, for appellants.

Merle N. A. Walker and T. C. Batchelor, both of Indianapolis, for appellees.

KIME, P. J.

This is an appeal from the action of the Marion superior court in setting aside the ruling of the board of zoning appeals of the city of Indianapolis when the cause was brought before that court on a writ of certiorari to review the action of said board.

The error assigned here is the overruling of a motion for a new trial which set out two grounds, viz.: (1) The decision is not sustained by sufficient evidence; (2) the decision is contrary to law.

The statute provides any person aggrieved by the action of the board of zoning appeals may present to the circuit or superior court a verified petition setting forth that such decision (of the board) is illegal and specifying the grounds of such illegality. After certain notices are given, the court may direct a writ of certiorari to the board ordering a return. The return writ must be verified and concisely set forth such facts and data as may be pertinent and material to show the grounds of the decision appealed from. Then quoting the statute: “The court may decide and determine the sufficiency of the statements of illegality contained in the petition without further pleadings, and may make its determination and render its judgment with reference to the legality of the decision of the board of zoning appeals on the facts set out in the return to the writ of certiorari; or, if it shall appear to the court that testimony is necessary for the proper disposition of the matter, it may take evidence thereon to supplement the evidence and facts disclosed by the return to the writ of certiorari, but no such review shall be by trial de novo. In passing upon the legality of the decision of the board of zoning appeals the court may reverse or affirm, wholly or in part, or may modify the decision of the board of zoning appeals brought up for review.” (Our italics.) Acts 1929, c. 14, p. 29 (Burns' Ann. St. Supp. 1929, § 10376).

The appellees, after an adverse decision by the board, filed what they denominated a complaint in the Marion superior court. A writ of certiorari was issued directing appellants to make due return thereon which was done. Let us see what may be gathered from the petition and the return only.

It appears that the appellee Laura Andrews was the owner of a lot located at Tacoma avenue and 12th street-75 feet on Tacoma and 183 feet on 12th-there was located on the lot a brick building 40x70 feet housing an overall laundry, and a cement block building 40x30 feet housing in one-half a dry cleaning plant and in the other half a garage. The appellee Overall Laundry, Inc., was the lessee of this property and had been when the zoning ordinance of the city of Indianapolis was adopted in 1922. The owner had given the lessee written permission to apply for a variance as is necessary in such cases. The lessee applied to the building commissioner for permission to connect the two buildings by roofing the area of 14x30 feet and walling it in for use as an engine room. This was refused and an appeal taken to the board. The notices as required were given. There was filed with the board a statement signed by fifteen residents of the community saying they thought it would be a benefit and not a detriment. There was a petition filed by sixty resident property owners of the immediate neighborhood protesting against any action in favor of the appellees. The petition complained of smoke fumes, fire hazards, and sewer clogging, and attributed it to the laundry. After hearing a large number of persons and being fully advised in the matter, the board denied the appellees' petition or appeal. The appellees then filed what they denominated a petition for rehearing wherein they set out:

“That said connecting structure was intended to relieve and eliminate the very conditions against which said persons protested viz: excessive smoke and offensive odors. That the connecting structure was designed solely to serve the two buildings or plants already in operation upon said property with the knowledge and consent of said Board and as such did not, of itself constitute a trade, calling or commercial enterprise, or an offensive or dangerous business; that as an eliminator of the smoke and offensive odors complained of said connecting structure would aid and promote the public welfare, comfort, safety and morals. That by reason of the fact that one of the structures so sought to be connected was erected and being used for business at the time of the passage of the zoning ordinance the aforesaid described real estate is permitted to be used for business purposes or any other purpose under its classification as a non-conforming use. That the proposed cost of the work to be done on these premises does not exceed Five Hundred ($500.00) dollars whereas the assessed valuation of the two structures already erected upon said premises is Ten Thousand ($10,000) dollars; that the proposed connecting structure is not in any sense a separate building but is strictly an alteration to the building already erected. Section Ten of the zoning ordinance permits an alteration of buildings on property designated as a non-conforming use under the following condition: ‘Where the alteration does not exceed an aggregate cost of sixty per cent. (60%) of the assessed valuation of the buildings already erected thereon.’ That by reason of the matters herein alleged, the petitioner's application is not a violation or a variance of any provision of such zoning ordinance.”

There was a map filed before the board showing in detail the surrounding property and its use. The board at the next meeting denied the petition for a rehearing, the appellees failing to present any additional evidence.

Before the Marion superior court could properly review the action of the board, it must necessarily have other facts before it. From the return submitted it does not appear in what use district this property was located, neither is the ordinance or the particular sections applicable set out. These would have been proper subjects upon which to have heard additional evidence as the same does not even appear from the verified petition filed asking for the writ.

Other facts presented by the petition for the writ show that the use to which this property was being put was a nonconforming use for that particular use district, but even here is not pleaded what constitutes a nonconforming use; that there had been a zoning ordinance adopted by the city council.

That part “specifying the grounds of such illegality” (Acts of 1929) alleged that the board did not hear evidence on costs and assessed valuation. They were here attempting to qualify under section 10 of the ordinance, although the ordinance nor this section had been pleaded. Had the court decided not to hear additional evidence we are at a loss to understand how this allegation would have availed them anything. That they had shown that a practical difficulty and an unnecessary hardship was inflicted upon them and they had been given no relief by the board and that this was illegal.

From the facts before the court on the petition and the return to the writ, the court could have, no doubt, with the additional facts set out above, determined whether or not the action of the board was illegal.

Now that all the facts are before us let us see what power the board had upon a state of facts thus shown with these further facts. It appears that this was a U-1 use district or mainly dwelling house district and that sections 1, 2, 3, 10, 22, and 23 of the zoning ordinance were admitted in evidence by the reviewing superior court.

The statute (being Acts of 1921, c. 225, p. 660, § 4, as amended by the Acts of 1925, c. 125, p. 305) that is applicable is as follows: “Such 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.” Section 10375, Burns' Ann. St. 1926.

[1] From that language we hold that the board of zoning appeals has power to permit and authorize exceptions and variations from the district regulations in the class of cases or the particular situation specified in the ordinance. In the instances set out in the ordinance and in absolutely no other instance has the board any power to “vary.”

Our next inquiry is what does the ordinance provide. Section 22 says this: “Where there are practical difficulties or unnecessary hardships in the way of carrying out the strict letter of the provisions of this ordinance, the Board of Zoning Appeals shall have the power in a specific case to vary any such provision in harmony with its general purpose and intent so that the public health, safety and general welfare may be secured and substantial justice done.

“Sec. 23. District Exceptions. The Board of Zoning Appeals may in a specific case,...