Devon Civic League, Inc. v. Marion County Bd. of Zoning Appeals, 20468

• Decision Date: 15 March 1967
• Docket Number: No. 1,No. 20468,20468,1
• Citation: 224 N.E.2d 66,140 Ind.App. 519
• Parties: DEVON CIVIC LEAGUE, INC., et al., Appellants, v. MARION COUNTY BOARD OF ZONING APPEALS, Harry Bolotin, Lowell B. McCracken, James L. Kliefgen, Harold Tomlinson, and Troye R. Hallowell, As Members of The Marion County Board of Zoning Appeals, Edward D. Tillman, Executive Secretary of The Marion County Board of Zoning Appeals, Merchants National Bank & Trust Co., as Trustee, Herbert Smoots, As Agent for Merchants National Bank & Trust Co., as Trustee, Appellees
• Court: Indiana Appellate Court

Page 66

224 N.E.2d 66

140 Ind.App. 519

DEVON CIVIC LEAGUE, INC., et al., Appellants, v. MARION COUNTY BOARD OF ZONING APPEALS, Harry Bolotin, Lowell B. McCracken, James L. Kliefgen, Harold Tomlinson, and Troye R. Hallowell, As Members of The Marion County Board of Zoning Appeals, Edward D. Tillman, Executive Secretary of The Marion County Board of Zoning Appeals, Merchants National Bank & Trust Co., as Trustee, Herbert Smoots, As Agent for Merchants National Bank & Trust Co., as Trustee, Appellees.

No. 20468.

Appellate Court of Indiana, Division No. 1.

March 15, 1967.

John J. Rochford, Indianapolis, Raikos, Rochford, Melangton & Dougherty, Indianapolis, of counsel, for appellants.

Henry M. Coombs and F. Robert Lively, Indianapolis, Nick G. Ricos, Indianapolis, of counsel, for appellees.

COOPER, Chief Justice.

This matter comes to us for review of a negative decision rendered by the Superior Court of Marion County, Room 1, from a Certiorari proceeding brought by the Appellants pursuant to Section 53--974 of Burns' Indiana Statutes, against the Appellees herein.

It appears from the record now before us that the Marion County Board of Zoning Appeals granted a variance of use, height, and land area of certain real estate located in Marion County, Indiana.

The issue presented to the reviewing Court below was the legality of the variance granted by the said Board of Zoning Appeals. The averments of the Appellants' Petition for Writ of Certiorari were, in substance, that the Board conducted its hearing illegally, and in contravention of its own rules; that the Board exceeded its statutory jurisdiction in entertaining such hearing; and that the determinations, findings and decisions of the Board were illegal, arbitrary, capricious, not supported by sufficient evidence and contrary to law. The issues were closed in the usual statutory manner, by the issuance of the Writ of Certiorari, and the subsequent filing by the Marion County Board of Zoning Appeals with the reviewing Court a full, complete and certified transcript of the proceedings had before said Board.

After submission the reviewing Court made and entered the following findings of fact and conclusions of law pursuant to Rule 1--7C of the Supreme Court of Indiana:

'This matter came on to be heard on the 21 day of April, 1965, upon petitioners' verified Petition for Writ of Certiorari followed by issuance of a Writ of Certiorari to the defendant, Marion County' Board of Zoning Appeals, and the filing of a verified return thereto by said Board of Zoning Appeals, consisting of true and correct copies of all the matters of proceedings, orders, entries and papers in connection with the decision appealed from.

'And the parties having appeared by counsel and presented to the Court the duly verified return to the Writ of Certiorari and having further identified and introduced as exhibits in this cause the photographs, maps, plans, official communications and other exhibits introduced in public hearing before the administrative board below, and the Court having read and examined the return to the Writ of Certiorari, and having examined the transcript of the testimony before the administrative board below, together with the photographs, maps, plans, official communications and other exhibits introduced below, and having further heard the arguments of counsel, and being fully advised in the premises, the Court, pursuant to Rule 1--7C of the Supreme Court of Indiana, makes the following findings of fact and conclusions of law thereon:

'1. That a certain decision of the defendant, Marion County Board of Zoning Appeals was made at public hearing on the 12th day of May, 1964, wherein a variance was granted authorizing the construction of one (1)--Twenty (20) story apartment building consisting of Two Hundred (200) units upon a certain fourteen (14) acre tract of land owned by defendants, Merchants National Bank & Trust Company, Trustee, in Marion County, Indiana, and more particularly described as follows:

'Part of the Southwest Quarter of Section 9, Township 16 North, Range 4 East, in Marion County, Indiana, more particularly described as follows:

'Beginning at the Southwest corner of said Southwest Quarter of Section 9, Township 16 North, Range 4 East, thence North along the West line of same a distance of 400.0 feet to a point, thence East with a deflection angle of 89 44 Right a distance of 116.2 feet to a point, thence North with a deflecting angle of 89 44 left a distance of 814.0 feet to a point, thence East with a deflection angle of 89 44 right a distance of 789.0 feet to a point, thence southwest with a deflection angle of 134 26 right a distance of 650.4 to a point, thence South with a deflection angle of 44 54 left a distance of 180.2 to a point, thence Southeast with a deflection angle of 45 06 left a distance of 242.5 to a point in the center line of Millersville Road, thence Southwest and along said center line with a deflection angle of 71 58 right a distance of 455.0 to a point on the South line of said Southwest Quarter of Section 9, Township 16 North, Range 4 East, thence West along said South line with a deflection angle 64 40 right a distance of 427.9 to the place of beginning, containing in all 14.0 acres, more or less.

'Subject, however, to any and all legal highways or rights of way.

'2. That all of the evidence in this cause, the transcript of proceedings before the defendant administrative board, and the exhibits introduced therein and herein, disclose that there was substantial evidence of probative value authorizing the grant of the variance on the grounds that:

'(a) The grant will not be injurious to the public health, safety, morals and general welfare of the community;

'(b) The use or value of the area adjacent to the property included in the variance will not be adversely affected;

'(c) A need for the variance arises from some condition peculiar to the property and does not exist in similar property in the same zone;

'(d) The strict application of the terms of the ordinance will constitute an unusual and unnecessary hardship if applied to the property for which a variance is sought;

'(e) The grant of the variance does not interfere with the Metropolitan Comprehensive Plan adopted pursuant to Sections 31 through 37 of this Act (Ch. 283, Acts 1955); provided that, no zoning ordinance or ordinances classifying or restricting the use of or otherwise applicable to the property involved shall be considered to be a part of such Metropolitan Comprehensive plan.

'3. That the plaintiffs in this cause failed to introduced any evidence disclosing that the decision of the administrative body appealed from was arbitrary, capricious, illegal, or without foundation in law or fact.

'4. That the defendant, Marion County Board of Zoning Appeals, did make a detailed finding of fact and decision legally sufficient to justify its determination and decision.

'5. That the Defendant, Marion County Board of Zoning Appeals, does have the legal authority, independent of the Metropolitan Plan Commission of Marion County, to authorize a change in use of land within its territorial jurisdiction upon a proper showing of evidence pursuant to special finding of facts, as set forth in Paragraph 2(a), (b), (c), (d), and (e) above, which said defendant administrative board properly exercised in this cause.

'6. That the defendant, Marion County Board of Zoning Appeals, is not compelled to base its decision upon the written opinion of the administrative staff of the Metropolitan Plan Commission of Marion County, and disregarding or accepting said written opinion was not an arbitrary, capricious, or illegal act.

'7. That there was no evidence introduced which evidences that the plaintiffs in this cause are suffering a taking of their property without just compensation.

'8. That the evidence and facts in this case are with the defendants and against the plaintiffs.

'9. That the law is with the defendants and against the plaintiffs.

'WHEREFORE, IT IS ORDERED, ADJUDGED AND DECREED that the decision of the Marion County Board of Zoning Appeals appealed from is legal and proper, and it is hereby wholly confirmed, and it is further ordered and decreed that the plaintiffs pay the costs herein and that the judgment be so entered in favor of the defendants and against the plaintiffs.'

We note that within the proper time after the reviewing Court's decision, the Appellants filed their Motion for a New Trial, averring ten different specifications of alleged error. The Court overruled the Motion for New Trial and these proceedings followed.

In both oral argument before this Court and in the Appellants' Brief, it was the contention of the Appellants, in substance, that the decision of the Board of Zoning Appeals was illegal as a matter of law in the following particulars: that the decision was not supported by the evidence, was contrary to the evidence, was contrary to law as being beyond the scope of the Board's jurisdiction, and that the Board abused its discretion.

After carefully reviewing the evidence in the record now before us, we cannot as a matter of law agree with the Appellants' contentions.

The pertinent statute involved is Section 53--969, Burns' Indiana Statutes, which...