Hazel v. Metropolitan Development Commission of Marion County, No. 1271A282

Docket NºNo. 1271A282
Citation154 Ind.App. 94, 289 N.E.2d 308
Case DateNovember 16, 1972
CourtCourt of Appeals of Indiana

Page 308

289 N.E.2d 308
154 Ind.App. 94
Edward B. HAZEL and Martha Hazel, Defendants-Appellants.
v.
The METROPOLITAN DEVELOPMENT COMMISSION OF MARION COUNTY,
Plaintiff-Appellee.
No. 1271A282.
Court of Appeals of Indiana, Second District.
Nov. 16, 1972.

[154 Ind.App. 95] Henry M. Coombs, C. Thomas Blankenship, Indianapolis, for defendants-appellants.

Gary R. Landau, Corp. Counsel, Anthony M. Benedict, Deputy Corp. Counsel, Indianapolis, for plaintiff-appellee.

SULLIVAN, Judge.

The question before us is whether the determination of one judge has encroached upon and superceded an earlier determination by another judge whose court (albeit a different room number of the same superior court) possessed concurrent jurisdiction.

Appellants Edward B. and Martha Hazel requested a variance from the requirements of the Marion County Master Plan Permanent

Page 309

Zoning Ordinance with respect to property owned by the appellant as follows:

[154 Ind.App. 96] '69--V4--189, Edward B. Hazel, 5240 South Warman Avenue, requests variance of use to provide for the storage of repossessed automobiles, with off-street parking as per plans filed. (Zoned A--2), located at 5240 South Warman Avenue in Perry Township.'

These plans consisted of the following exhibit:

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

[154 Ind.App. 97]

Page 310

The Marion County Board of Zoning Appeals denied the requested variance by a vote of 3--2 on November 13, 1969. On July 16, 1970 upon certiorari, Marion County Superior Court #3 (Superior Three) reversed the Metropolitan Board of Zoning Appeals and in effect, purported to grant the zoning variance. Pertinent parts of the judgment are as follows:

'IT IS NOW, THEREFORE, ORDERED, ADJUDGED AND DECREED BY THE COURT: That the action of the Board of Zoning Appeals in denying plaintiff's application to provide for storage of repossessed automobiles, with off-street parking, as per plans filed on the following described real estate, said real estate being described as follows, to-wit:

Lot Number Fifteen (15) in Sunshine Gardens Addition, recorded in Plat Book 21, page 153, in the Office of the Recorder of Marion County, Indiana.

That the strict application of such ordinance, as to plaintiff's real estate and the use thereof, constitutes such impractical difficulties and unnecessary hardship in said case that said real estate necessitates a variance, and the variance from the strict letter of the zoning ordinance is now ordered so far as related to the improvement as applied for by the plaintiff.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED BY THE COURT: That the decision of the Board of Zoning Appeals in Case Number 69--V4--189, is wholly reversed.'

On April 8, 1970, prior to any decision by Superior Three, the appellee, Metropolitan Development Commission of Marion County (hereinafter referred to as 'Commission') filed a complaint in Marion County Superior Court #4 (Superior Four) for a permanent injunction against Hazel to prohibit the storing of automobiles upon the real estate in question. After the Superior Three decision, the complaint in Superior Four was amended to apply only to Tract 'B' of Lot 15. Then on March 30, 1971, Superior Four entered a judgment in favor of the Commission granting a permanent injunction against Hazels. Pertinent parts of the injunction order are as follows:

[154 Ind.App. 98] 'WHEREFORE, IT IS ORDERED, ADJUDGED AND DECREED that on and after April 1, 1971, Edward B. Hazel and Martha A. Hazel, are permanently enjoined from using the real estate herein referred to as Tract 'B' for the storage of motor vehicles.'

Hazels' Motion to Correct Errors was overruled.

Two related issues are presented to this Court on appeal:

1) Did Superior Four have 'jurisdiction'?

2) Did the Superior Four decree unlawfully limit the rights guaranteed to Hazels by a prior decision of a court of coordinate jurisdiction?

They are herein treated as one.

The Commission's complaint for a permanent injunction was based upon the Act which established the Metropolitan Planning Commission. 1 Section 53--982 of that Act is as follows:

'53--982. Injunction.--The plan commission, the metropolitan board of zoning appeals or any designated enforcement official may institute a suit for injunction in the circuit or superior court of the county to restrain an individual or a governmental unit from violating the provisions of this act ( §§ 53--901 to 53--985) or of an ordinance enacted pursuant to its terms. The plan commission or the

Page 311

metropolitan board of zoning appeals may also institute a suit for a mandatory injunction directing an individual or a governmental unit to remove a structure erected in violation of the provisions of this act or of an ordinance enacted pursuant to its terms. If the plan commission or the metropolitan board of zoning appeals is successful in its suit, the respondent shall bear the costs of the action. A change of venue from the county shall not be granted in such a case. (Acts 1955, ch. 283, § 82, p. 786; 1959, ch. 380, § 27, p. 1033; 1965, ch. 434, § 23, p. 1375.)'

However, Hazels contend that the injunction granted by Superior Four erroneously circumvented the decision of Superior[154 Ind.App. 99] Three, a court of concurrent jurisdiction. We recognize that the controlling statute establishes one superior court which consists of seven judges. See I.C.1971, 33--5--35--1, Ind.Ann.Stat. § 4--2201 (Burns 1968). Nevertheless, the principle that the court first acquiring jurisdiction retains it to the exclusion of all others of coordinate position is applicable to the various rooms and judges of the Marion County Superior Court. State v. Bridwell (1960), 241 Ind. 135, 141, 170 N.E.2d 233.

The principle which appellant argues as applicable and as...

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6 practice notes
  • Anatra v. Zoning Bd. of Appeals of Town of Madison, No. 18784.
    • United States
    • Supreme Court of Connecticut
    • February 5, 2013
    ...the public record in construing conditions attached to the granting of a variance. See Hazel v. Metropolitan Development Commission, 154 Ind.App. 94, 101–103, 289 N.E.2d 308 (1972) (examining public record, including variance petition, exhibits and plans filed, to determine portion of lot t......
  • Anatra v. Zoning Bd. of Appeals of Madison, SC 18784
    • United States
    • Supreme Court of Connecticut
    • February 5, 2013
    ...the public record in construing conditions attached to the granting of a variance. See Hazel v. Metropolitan Development Commission, 154 Ind. App. 94, 101-103, 289 N.E.2d 308 (1972) (examining public record, including variance petition, exhibits and plans filed, to determine portion of lot ......
  • Ervin v. State, No. 372A132
    • United States
    • Indiana Court of Appeals of Indiana
    • November 16, 1972
    ...regarding the defense of entrapment is ably set forth in the following decisions of our Supreme Court. Smith v. State (1972), Ind., 281 [154 Ind.App. 94] N.E.2d 803; Walker v. State (1970), Ind., 262 N.E.2d 641, 23 Ind.Dec. 104; Gray v. State (1967), 249 Ind. 629, 231 N.E.2d 793, 12 Ind.Dec......
  • Clark County Bd. of Com'rs v. Taggart Const. Co., Inc., No. 11418
    • United States
    • Nevada Supreme Court of Nevada
    • September 5, 1980
    ...construed to limit relief to the minimum variance which is sufficient to relieve the hardship. Hazel v. Metropolitan Development Comm'n, 289 N.E.2d 308, 313 (Ind.1972); Board of Adjustment v. Ruble, 193 N.W.2d 497, 503 (Iowa 1972); 3 R. Anderson, American Law of Zoning § 18.84, at 352 (2d e......
  • Request a trial to view additional results
6 cases
  • Anatra v. Zoning Bd. of Appeals of Town of Madison, No. 18784.
    • United States
    • Supreme Court of Connecticut
    • February 5, 2013
    ...the public record in construing conditions attached to the granting of a variance. See Hazel v. Metropolitan Development Commission, 154 Ind.App. 94, 101–103, 289 N.E.2d 308 (1972) (examining public record, including variance petition, exhibits and plans filed, to determine portion of lot t......
  • Anatra v. Zoning Bd. of Appeals of Madison, SC 18784
    • United States
    • Supreme Court of Connecticut
    • February 5, 2013
    ...the public record in construing conditions attached to the granting of a variance. See Hazel v. Metropolitan Development Commission, 154 Ind. App. 94, 101-103, 289 N.E.2d 308 (1972) (examining public record, including variance petition, exhibits and plans filed, to determine portion of lot ......
  • Ervin v. State, No. 372A132
    • United States
    • Indiana Court of Appeals of Indiana
    • November 16, 1972
    ...regarding the defense of entrapment is ably set forth in the following decisions of our Supreme Court. Smith v. State (1972), Ind., 281 [154 Ind.App. 94] N.E.2d 803; Walker v. State (1970), Ind., 262 N.E.2d 641, 23 Ind.Dec. 104; Gray v. State (1967), 249 Ind. 629, 231 N.E.2d 793, 12 Ind.Dec......
  • Clark County Bd. of Com'rs v. Taggart Const. Co., Inc., No. 11418
    • United States
    • Nevada Supreme Court of Nevada
    • September 5, 1980
    ...construed to limit relief to the minimum variance which is sufficient to relieve the hardship. Hazel v. Metropolitan Development Comm'n, 289 N.E.2d 308, 313 (Ind.1972); Board of Adjustment v. Ruble, 193 N.W.2d 497, 503 (Iowa 1972); 3 R. Anderson, American Law of Zoning § 18.84, at 352 (2d e......
  • Request a trial to view additional results

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