Hirschman v. Marion County Plan Commission, No. 18927

Docket NºNo. 18927
Citation146 N.E.2d 277, 128 Ind.App. 520
Case DateDecember 09, 1957
CourtCourt of Appeals of Indiana

Page 277

146 N.E.2d 277
128 Ind.App. 520
J. Clifton HIRSCHMAN et al., Appellants,
v.
MARION COUNTY PLAN COMMISSION, The Board of Commissioners of
the County of Marion, Fred Davidson, Herbert Davidson,
Samuel J. Kagan, Leo Wagman, James H. Overby, Jr. and James
A. Cluly, Sr., R. Ray Fisher, as Marion County Building
Commissioner, Appellees.
No. 18927.
Appellate Court of Indiana, In Banc.
Dec. 9, 1957.
Rehearing Denied Jan. 13, 1958.
Transfer Denied May 29, 1958.

[128 Ind.App. 521]

Page 278

Bredell, Cooper & Martin, C. Wendell Martin, Indianapolis, for appellants.

Steers, Klee, Jay & Sullivan, Indianapolis, for appellees.

KELLEY, Chief Judge.

A primary question presented by the record and briefs in this appeal is whether the Circuit Court of Marion County possessed jurisdiction over the subject matter of a petition for Writ of Certiorari against the appellee Plan Commission and to declare void an ordinance adopted by the appellee Board of County Commissioners, the adoption or enactment of which was recommended by said Plan Commission. The proceedings involved were allegedly taken under the provisions of Secs. 53-701 to 53-794, Burns' 1951 Replacement, as amended, Secs. 53-703 to 53-793, Burns' Cum. Pocket Supplement 1957. The question results from the action of the court in sustaining the demurrer of the said Plan Commission and County Commissioners to said petition upon the ground that the court had no jurisdiction over the subject matter of the action.

An original petition was filed by appellants (thirty in number) on January 12, 1955. This petition, in material substance, alleged that the petitioners (appellants) are the owners of real estate adjacent to and in the vicinity of a particularly described tract of land located generally north and east of the intersection of State Roads No. 100 and No. 431 in the community known as Nora, Washington Township, Marion County, Indiana, which described real estate is owned by the appellees, Fred Davidson and Herbert Davidson; that on November 12, 1948 the Board of County Commissioners[128 Ind.App. 522] of Marion County, pursuant to the statute above referred to, adopted a comprehensive Master Plan Zoning Ordinance which divided the unincorporated area of Marion County into 22 districts, composed of agricultural, residential, and business districts.

That on May 26, 1954 said Master Plan Zoning Ordinance was amended so as to change the classification of 45 acres of the land lying generally north and east of the said intersection of said State Roads 100 and 431, which apparently included the said particularly described tract of land, from an agricultural district to a residential district; that on November 18, 1954 said appellees, Davidson and Davidson,

Page 279

filed with the appellee, Marion County Plan Commission, a petition requesting a change of the zoning regulations of the Master Plan Zoning Ordinance as related to real estate near to but described differently from the above mentioned particularly described tract of land; that on December 16, 1954 the appellee, Plan Commission, purported to adopt, approve, and recommend a proposed ordinance for the amendment of said Master Plan Zoning Ordinance to effect a change of the classification of the real estate described in the petition of Davidson and Davidson to that of a business district 'in order to provide for the construction of a community shopping center, consisting of one commercial building with five units for retail sales and personal service shops.'

The petition does not allege that the Board of County Commissioners enacted the amending ordinance recommended by the Plan Commission but for the purposes now considered, the petition, taken as a whole, may be said, by intendment, to aver such enactment and that the ordinance bears the date of December 16, 1954. It is further averred that the appellee, Samuel J. Kagan, on December 21, 1954 issued an improvement [128 Ind.App. 523] Location Permit relating to the real estate described in the petition of said Davidsons; and that the appellees, Wagman, Overby, Jr., and Cluly, Sr., are joined as defendants because their names first appear upon the document filed in support of Davidsons' petition.

The petition avers that the decision of the Plan Commission is illegal for the certain specified reasons, including the charge that proper and sufficient notice of the public hearing on Davidsons' petition was not given as required by Secs. 53-737, 53-742, and 53-765 of the aforecited statute, that the description of the real estate in the amending ordinance finally adopted was different from that given in Davidsons' petition, that the Plan Commission abused its discretion, and that its decision deprived appellants of their property without due process of law and without just compensation. It is further alleged that the 'purported' ordinance of the Board of County...

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7 practice notes
  • Associates Inv. Co. v. Claeys, No. 71A04-8804-CV-131
    • United States
    • Indiana Court of Appeals of Indiana
    • February 8, 1989
    ...Association v. Common Council of Lebanon (1975), 167 Ind.App. 253, 338 N.E.2d 695; Hirschman v. Marion County Plan Commission (1958), 128 Ind.App. 520, 146 N.E.2d 277, trans. denied. Page 1251 * The only relevant inquiry in determining whether the court has subject matter jurisdiction is to......
  • Adoption of H.S., Matter of, No. 1-1184A296
    • United States
    • Indiana Court of Appeals of Indiana
    • October 10, 1985
    ...Association v. Common Council of Lebanon (1975), 167 Ind.App. 253, 338 N.E.2d 695; Hirschman v. Marion County Plan Commission (1958), 128 Ind.App. 520, 146 N.E.2d 277, trans. denied. The only relevant inquiry in determining whether the court has subject matter jurisdiction is to ask whether......
  • Bryant v. Lake County Trust Co., No. 272A103
    • United States
    • Indiana Court of Appeals of Indiana
    • June 29, 1972
    ...of unreasonableness and arbitrary action of the city . . ." See also Hirschman et al. v. Marion County Plan Commission et al., 128 Ind.App. 520, 146 N.E.2d 277 Although Saylor, supra, dealt with IC 1971, 18--7--2--1 et seq., Ind.Ann.Stat. §§ 53--901 et seq. (Burns 1964), which does not......
  • Largen v. Largen, No. 46A04-8803-CV-117
    • United States
    • Indiana Court of Appeals of Indiana
    • March 29, 1989
    ...Association v. Common Council of Lebanon (1975), 167 Ind.App. 253, 338 N.E.2d 695; Hirschman v. Marion County Plan Commission (1958), 128 Ind.App. 520, 146 N.E.2d 277, trans. denied. The only relevant inquiry in determining whether the court has subject matter jurisdiction is to ask whether......
  • Request a trial to view additional results
7 cases
  • Associates Inv. Co. v. Claeys, No. 71A04-8804-CV-131
    • United States
    • Indiana Court of Appeals of Indiana
    • February 8, 1989
    ...Association v. Common Council of Lebanon (1975), 167 Ind.App. 253, 338 N.E.2d 695; Hirschman v. Marion County Plan Commission (1958), 128 Ind.App. 520, 146 N.E.2d 277, trans. denied. Page 1251 * The only relevant inquiry in determining whether the court has subject matter jurisdiction is to......
  • Adoption of H.S., Matter of, No. 1-1184A296
    • United States
    • Indiana Court of Appeals of Indiana
    • October 10, 1985
    ...Association v. Common Council of Lebanon (1975), 167 Ind.App. 253, 338 N.E.2d 695; Hirschman v. Marion County Plan Commission (1958), 128 Ind.App. 520, 146 N.E.2d 277, trans. denied. The only relevant inquiry in determining whether the court has subject matter jurisdiction is to ask whether......
  • Bryant v. Lake County Trust Co., No. 272A103
    • United States
    • Indiana Court of Appeals of Indiana
    • June 29, 1972
    ...of unreasonableness and arbitrary action of the city . . ." See also Hirschman et al. v. Marion County Plan Commission et al., 128 Ind.App. 520, 146 N.E.2d 277 Although Saylor, supra, dealt with IC 1971, 18--7--2--1 et seq., Ind.Ann.Stat. §§ 53--901 et seq. (Burns 1964), which does not......
  • Largen v. Largen, No. 46A04-8803-CV-117
    • United States
    • Indiana Court of Appeals of Indiana
    • March 29, 1989
    ...Association v. Common Council of Lebanon (1975), 167 Ind.App. 253, 338 N.E.2d 695; Hirschman v. Marion County Plan Commission (1958), 128 Ind.App. 520, 146 N.E.2d 277, trans. denied. The only relevant inquiry in determining whether the court has subject matter jurisdiction is to ask whether......
  • Request a trial to view additional results

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