Fryer v. City of New Albany, 19943

• Decision Date: 06 December 1963
• Docket Number: No. 19943,No. 2,19943,2
• Citation: 194 N.E.2d 417,135 Ind.App. 454
• Parties: Glenn D. FRYER and Lucille S. Fryer, Appellants, v. The CITY OF NEW ALBANY, Indiana, et al., Appellees
• Court: Indiana Appellate Court

Page 417

194 N.E.2d 417

135 Ind.App. 454

Glenn D. FRYER and Lucille S. Fryer, Appellants, v. The CITY OF NEW ALBANY, Indiana, et al., Appellees.

No. 19943.

Appellate Court of Indiana, Division No. 2.

Dec. 6, 1963.

John A. Cody, Jr., New Albany, for appellants.

Basil H. Lorch, Jr., Lorch & Lorch, New Albany, for appellees.

PFAFF, Judge.

This was an action brought by the appellants against the appellees in the Floyd Circuit Court on a Petition for Writ of Certiorari, as an appeal from a decision of the Board of Zoning Appeals of the City of New Albany, Indiana. The appellee, Bonnie Sloan Post No. 28, The American Legion, Department of Indiana, was granted a variance on its petition filed with the Board of Zoning Appeal of the City of New Albany, Indiana, to change the zoning classification of its property from R-5 Residential to C-1 Commercial. The decision of the Board of Zoning Appeals was appealed from by the appellants when they filed their Petition for Writ of Certiorari in the Floyd Circuit Court.

Trial was had by the court without the intervention of a jury. Judgment was entered by the court affirming the action of the Board of Zoning Appeals in approving the application of Bonnie Sloan Post No. 28, The American Legion, Department of Indiana, for variance from the Zoning Ordinance of the City of New Albany, Indiana, to provide for the construction of an oil-gas service station at 914 East Main Street in said city.

The appellants moved for a new trial which was overruled by the trial court.

The appellants have designated as their assignment of error for this appeal that the Floyd Circuit Court erred in overruling their motion for a new trial. Such motion has five grounds. The appellants have waived specifications three, four and five of the grounds set out in their motion for new trial.

Specifications one and two constituting the assignment of error, are that the decision of the court is contrary to law, and that the decision of the court is not sustained by sufficient evidence.

The statute applicable in this case, being § 53-778, Burns' 1951 Replacement, reads as follows:

'The board of zoning appeals shall:

'1. 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 sections 56 through 65 [§§ 53-756--53-766] of this act.

'2. Permit and authorize exceptions to the district regulations only in the classes of cases or in particular situations as specified in the ordinance.

'3. Hear and decide special exceptions to the terms of the ordinance upon which the board is required to act under the ordinance.

'4. Authorize upon appeal in specific cases such variance from the terms of the ordinance as will not be contrary to the public interest, where, owing to special conditions, a literal enforcement of the provisions of the ordinance will result in unnecessary hardship, and so that the spirit of the ordinance shall be observed and substantial justice done.

'In exercising its powers, the board of zoning appeals may reverse or affirm, wholly or partly, or may modify the order, requirement, decision or determination appealed from as in its opinion ought to be done in the premises, and to that end shall have all the powers of the officer or board from whom the appeal is taken. (Acts 1947, ch. 174, § 77, p. 571.)'

The portion of the section of the Ordinance of the city of New Albany applicable in this case reads as follows:

' § 22. BOARD OF ZONING APPEALS.

'* * *

'E. The Board shall have the following powers and it shall be its duty to:

'(1) Hear and determine appeals from and review any order, requirement, decision or determination made by the Building Commissioner in the enforcement of this ordinance.

'(2) Hear and decide on permits for conditional uses, development plans or other uses upon which the Board is required to act under this ordinance.

'(3) Authorize upon appeal in specific cases such variances from the terms of this ordinance as will not be contrary to the public interest, where owing to special conditions, fully demonstrated on the basis of the facts presented, a literal enforcement of the provisions of this ordinance will result in unnecessary hardship and so that the spirit of this ordinance shall be observed and substantial justice done.

'F. In exercising its powers, the Board may reverse or affirm, wholly or partly, or may modify, the order, requirement, decision or determination appealed from as in its opinion ought to be done in the premises, and to that end shall have all the powers of the City Building Commissioner from whom the appeal is taken.

'G. Every decision of the Board shall be subject to review by certiorari.

'H. No variance in the application of the provisions of this ordinance shall be made by the Board relating to buildings, land or premises now existing or to be constructed, unless after a public hearing, the Board shall find:

'(1) That there are exceptional or extraordinary circumstances or conditions applicable to the property or to the intended use that do not apply generally to the other property or class of use in the same vicinity and district.

'(2) That such variance is necessary for the preservation and enjoyment of a substantial property right possessed by other property in the same vicinity and district but which is denied to the property in question.

'(3) That the granting of such variance will not be materially detrimental to the public welfare or injurious to the property or improvements in such vicinity and district in which the property is located.

'(4) That the granting of such variance will not alter the land use characteristics of the vicinity and district, diminish the marketable value of adjacent land and improvements or increase the conjestion in...