Dandy Co., Inc. v. Civil City of South Bend, County-City Complex, COUNTY-CITY

• Decision Date: 27 March 1980
• Docket Number: No. 3-377A81,COUNTY-CITY,3-377A81
• Parties: DANDY CO., INC., an Indiana Corporation, D/B/A XXX Adult XXX Mini-Movie Arcade, Appellant-Defendant, v. CIVIL CITY OF SOUTH BEND,COMPLEX, Appellee-Plaintiff.
• Court: Indiana Appellate Court

Page 1380

401 N.E.2d 1380

DANDY CO., INC., an Indiana Corporation, D/B/A XXX Adult XXX Mini-Movie Arcade, Appellant-Defendant, v. CIVIL CITY OF SOUTH BEND, COUNTY-CITY COMPLEX, Appellee-Plaintiff.

No. 3-377A81.

Court of Appeals of Indiana, Third District.

March 27, 1980.

Harry Heppenheimer and Donald E. Wertheimer, South Bend, for appellant-defendant.

Thomas J. Brunner, Jr., and Sanford M. Brook, South Bend, for appellee-plaintiff.

HOFFMAN, Judge.

Defendant-appellant Dandy Co., Inc. (Dandy) appeals the issuance of a preliminary injunction enjoining it from operating an adult bookstore pending further court order or final hearing.

The evidence most favorable to the judgment discloses that the subject premises, a building located at 1524 South Miami Street in South Bend, Indiana, was owned by Kathryn Serkes at all times material to this litigation. In March of 1972, Serkes leased the premises to Edward Balanow who used it to operate an adult bookstore. On May 3, 1974, Balanow vacated the premises and the Sappenfields assumed operation of the bookstore until their lease expired in November 1974. Due to Serkes' inability to find another tenant, the premises remained unoccupied from November 1974 until December 1976 when Dandy signed a three-year lease to operate an adult bookstore.

Subsequently, South Bend, Indiana Ordinance No. 6090-76 (December 14, 1976) was enacted with its effective date set for January 1, 1977. This zoning measure restricted the establishment of controlled uses by forbidding three such controlled uses to operate within 1000 feet of each other or any one such use to be established within 500 feet of a residential area. The term "controlled uses" includes eight different kinds of establishments in addition to adult bookstores. On February 14, 1977, Dandy opened its bookstore for business. Two days later, the City of South Bend (City) instituted this action for a preliminary and permanent injunction. After a hearing, the trial court entered a preliminary injunction against Dandy.

The issues tendered for resolution on this appeal include:

(1) whether a prior nonconforming use had been abandoned;

(2) whether enforcement of the ordinance improperly divested certain rights held by Dandy;

(3) whether error was committed in denial of a motion to stay of proceedings;

(4) whether Dandy was properly held in contempt of the injunction; and

(5) whether the ordinance is constitutional.

Dandy urges that the trial court erred by rejecting its defense of prior nonconforming use. The basis for this alleged error is that the prior use was never abandoned. It is well settled that the burden of proving the existence of a nonconforming use rests with the party asserting the existence of such use. O'Banion v. State (1969), 146 Ind.App. 223, 253 N.E.2d 739. Since evidence cannot re reweighed on appeal, reversal occurs only when the evidence is uncontradicted and will support no reasonable inference in the trial court's favor. City of Beech Grove v. Schmith (1975), 164 Ind.App. 536, 329 N.E.2d 605.

The trial court found that a prior nonconforming use of the premises did not exist on January 1, 1977, the effective date of the ordinance. The court also found that the prior nonconforming use terminated in November 1974 when the Sappenfields' lease expired. From these facts, the trial court concluded that the defense of prior nonconforming use was unavailing.

Proof of a pre-existing nonconforming use constitutes a defense to an action alleging the violation of a zoning ordinance as long as such use has not been terminated under the terms of the ordinance. Ashley v. City of Bedford (1974), 160 Ind.App. 634, 312 N.E.2d 863. Generally, zoning ordinances have no retroactive effect and work no disturbance with existing use of property. Thus, premises used for business purposes prior to the enactment of an ordinance may be continued in such use although later included in a residential district where such use is prohibited. Lutz v. New Albany City Plan Comm. (1951), 230 Ind. 74, 101 N.E.2d 187.

The South Bend zoning measure is in accordance with these general rules of law. South Bend, Indiana Ordinance No. 4990-68 Section 8(A) proclaims:

"The lawful use of land existing at the time of the passage of this ordinance, although such use does not conform to the provisions hereof, may be continued, but if such non-conforming use is discontinued, any future use of said premises shall be in conformity with the provisions of this ordinance."

The question of resumption of a nonconforming use presupposes that a nonconforming use existed on the effective date of zoning and that such use was discontinued for a period of time. Lutz v. New Albany City Plan Comm., supra, defines "existing use" as:

" '(T)he utilization of the premises so that they may be known in the neighborhood as being employed for a given purpose; i e., the conduct of a business. Ordinarily an existing use for business combines two factors: (a) Construction or adaptability of a building or room for the purpose, and (b) employment of the building or room or land within the purpose.' "

101 N.E.2d 189.

It should be noted, however, that the "existence" of a nonconforming use is not necessarily the same as the "exercise" of the use. Thus, a previously established nonconforming use may be deemed to be in existence at the time of zoning even though it is not being exercised on the very day of zoning. Rathkopf, The Law of Zoning and Planning Ch. 58, Sec. 3 (4th ed. 1978); 82 Am.Jur.2d Zoning and Planning § 184 (1976); 57 A.L.R.3d 279 (1974). Consequently, a right to resume a use of premises which became nonconforming under a zoning measure, despite a period of nonexercise of the use commencing before and extending after the time of zoning, has been recognized.

For example, the active use of a barn as a stable was suspended prior to passage of the zoning ordinance in Borough of Saddle River v. Bobinski (1969), 108 N.J.Super. 6, 259 A.2d 727. It was held that where there has been a suspension of an actual use as opposed to a mere intention of future use, there is an existing use.

This view was also applied in Green v. Copeland (1970), 286 Ala. 341, 239 So.2d 770 where a restaurant owner's beer license had been suspended indefinitely prior to enactment of a zoning ordinance which prohibited the sale of beer on the premises. The owner was held to have a right to continue such nonconforming use notwithstanding the fact that beer was not being sold on the effective date of the ordinance.

Of course, if a particular use of property is discontinued before the rezoning, the right to resume it afterwards is lost since the use was not existing when the ordinance was enacted. Discontinuance, however, means more than a mere suspension of a nonconforming use. In interpreting the term "discontinuance" when used in a zoning regulation concerning the termination or resumption of a nonconforming use, the prevailing view recognizes the term as synonymous with or equivalent to "abandonment". 1 Anderson, American Law of Zoning § 6.61 (1968); See also, 57 A.L.R.3d 279.

It is well settled that abandonment of the right to continue a use not conforming to a zoning ordinance requires a voluntary act on the part of the owner that signifies both an intent to abandon and abandonment. Without this concurrence of intention and some voluntary act or failure to act evincing that the owner of the nonconforming use neither claims nor retains the right to exercise the use, there can be no abandonment. Green v. Copeland, supra ; Union Quarries, Inc. v. Board of County Com'rs (1970), 206 Kan. 268, 478 P.2d 181; Rudnik v. Mayers (1972), 387 Mich. 368, 196 N.W.2d 770; A. T. & G., Inc., v. Zoning Board of Review (1974), 113 R.I. 458, 322 A.2d 294.

Dandy urges that inability to rent the premises negates any voluntary act of abandonment. Among the circumstances which have been held to excuse a cessation of the exercise of a nonconforming use is the inability to secure a tenant for the premises. Marchese v. Norristown Borough Zon. Bd. of Adjust. (1971), 2 Pa.Cmwlth. 84, 277 A.2d 176; Wood v. District of Columbia (1944), 39 A.2d 67; Douglas v. Village of Melrose Park (1945), 389 Ill. 98, 58 N.E.2d 864; Landay v. MacWilliams (1938), 173 Md. 460, 196 A. 293.

"(W)here there is a period of non-use because of the financial inability of the owner to continue in business or to find a tenant desirous of using the premises for a purpose permissible as a non-conforming use the requisite intent to abandon is lacking, and the right to resume the non-conforming use when opportunity presents itself is not lost." (Emphasis added.) Smith v. Howard (1966), Ky., 407 S.W.2d 139, at 141-142.

Although Serkes testified that she attempted to rent the premises and placed a rent sign in the building, there was absolutely no evidence that her rental efforts during the two-year vacancy were aimed at finding a tenant to operate an adult bookstore. As the trial judge was free to weigh the evidence, he could reasonably have concluded that this omission in Dandy's case indicated that Serkes did not intend to retain a nonconforming use for the premises. This inference coupled with the two-year lapse of time supports the finding of abandonment. ¹ The burden to establish a nonconforming use rested with Dandy. It offered evidence that Serkes had attempted to lease the premises and had actually secured Dandy as a tenant to operate an adult bookstore prior to the rezoning. However, merely signing a lease and beginning clean-up work by the effective date of the ordinance would not make known to the neighborhood that the premises were being used as an adult bookstore within the meaning of the rule laid down in Lutz v. New Albany City Plan Comm., supra. There was no substantial construction or direct adaptability of the land for the intended purpose nor was there any employment of the land within the intended purpose. At best,...