Jacobs v. Mishawaka Bd. of Zoning Appeals
| Decision Date | 23 October 1979 |
| Docket Number | No. 3-1277A306,3-1277A306 |
| Citation | 395 N.E.2d 834,182 Ind.App. 500 |
| Parties | Kenneth JACOBS, Martha Jacobs, Plaintiffs-Appellants, v. MISHAWAKA BOARD OF ZONING APPEALS, Defendant-Appellee. |
| Court | Indiana Appellate Court |
John D. Bodine, Mishawaka, for plaintiffs-appellants.
R. Wyatt Mick, Jr., Mishawaka, for defendant-appellee.
On July 25, 1974, the Building Commissioner of the City of Mishawaka issued an order to cease and desist operation of a used car lot on the property of appellants Kenneth and Martha Jacobs.
The property in question is presently zoned C-1 (commercial) which does not include among its permitted uses a used car business. The proper zoning for a used car business is C-4. At the time the present Mishawaka Zoning Ordinance was enacted, placing a C-1 zoning classification on the property, a service station was in existence and operating. It is uncontested that the service station, also classified as a C-4 use, was a legal non-conforming use. The property's use as a service station was discontinued for a period of time and, subsequently, the Jacobs commenced the used car business which was ordered to be closed down.
The Jacobs appealed the order to the Mishawaka Board of Zoning Appeals (Board) contending that the present use did not violate the ordinance and that the order was illegal. The Board affirmed the cease and desist order and the trial court, in turn, affirmed the decision of the Board. This appeal followed.
The issue before this court is whether the use of the property as a used car lot was a legal non-conforming use under the zoning ordinance.
The phrase "non-conforming use" is defined as a use of premises which lawfully existed prior to the enactment of a zoning ordinance and which is allowed to be maintained or continued after the effective date of the ordinance although it does not comply with the use restrictions applicable in the area. City of Beech Grove v. Schmith (1975), 164 Ind.App. 536, 329 N.E.2d 605; Ashley v. City of Bedford (1974), 160 Ind.App. 634, 312 N.E.2d 863. Zoning ordinances contain provisions exempting existing non-conforming uses from the use restrictions because the right of a municipality to enact zoning restrictions is subject to the vested property interests acquired prior to the enactment of the zoning ordinances. An ordinance prohibiting any continuation of an existing lawful use within a zoned area is unconstitutional as a taking of property without due process of law and as an unreasonable exercise of police power. Blundell v. City of West Helena (1975), 258 Ark. 123, 522 S.W.2d 661; O'Connor v. City of Moscow (1949), 69 Idaho 37, 202 P.2d 401; Sanderson v. DeKalb County Zoning Board of Appeals (1974), 24 Ill.App.3d 107, 320 N.E.2d 54; Connor v. Township of Chanhassen (1957), 249 Minn. 205, 81 N.W.2d 789; State ex rel. Capps v. Bruns (Mo.App.1962), 353 S.W.2d 829; State ex rel. Fairmount Center Co. v. Arnold (1941), 138 Ohio St. 259, 34 N.E.2d 777; State ex rel. Nealy v. Cole (Mo.App.1969), 442 S.W.2d 128; City of Akron v. Chapman (1953), 160 Ohio St. 382, 116 N.E.2d 697; Harbison v. City of Buffalo (1958), 4 N.Y.2d 553, 176 N.Y.S.2d 598, 152 N.E.2d 42. In view of the fact that the ultimate purpose of zoning regulations is to confine certain classes of uses and structures to certain areas, non-conforming uses are not generally favored since they detract from the attainment of that purpose. Thus, the policy of zoning ordinances is to secure the gradual, or eventual elimination of non-conforming uses and to restrict or diminish rather than increase such uses. Holloway Ready Mix Co. v. Monfort (Ky.App.1968), 474 S.W.2d 80; Hoffmann v. Kinealy (Mo.1965), 389 S.W.2d 745; Brown v. Gambrel (1948), 358 Mo. 192, 213 S.W.2d 931; State v. Accera (1955), 36 N.J.Super. 420, 116 A.2d 203. To that end, municipalities have employed various regulatory methods such as prohibiting the resumption of a non-conforming use after its abandonment; prohibiting the rebuilding or alteration of non-conforming structures; prohibiting or restricting a change from one non-conforming use to another or the compulsory termination of a non-conforming use at the expiration of a specified time. Hoffmann v. Kinealy, supra.
The extent to which a change in a non-conforming use is permissible depends upon the provisions of the zoning regulation, the nature of the uses in question and the facts of the particular case in question. Each case involves and requires a determination and consideration of the facts of the particular case measured against the language of the applicable ordinance or statute. City of Beech Grove v. Schmith (1975), 164 Ind.App. 536, 329 N.E.2d 605; Powers et al. v. Building Inspector of Barnstable (1973), 363 Mass. 648, 296 N.E.2d 491. "Drawing conclusions from other cases is dangerous because the zoning regulations governing nonconforming uses vary widely from jurisdiction to jurisdiction." City of Beech Grove, supra, 329 N.E.2d at 611.
The pertinent portions of the City of Mishawaka Zoning Ordinance No. 1378 reads as follows:
DEFINITIONS AND RULES OF CONSTRUCTION
Sect. 1. Definitions
(63) Non-Conforming Use.
"Any building or land lawfully occupied by a use which at the time of the passing of this Zoning Ordinance or an amendment thereto does not conform with the regulations in the district in which it is situated.
Article II. Zoning Districts
Except as hereinafter provided, no building or structure shall be erected or altered, nor shall any building or premises be used for any purpose other than a use permitted in the district in which such building or premises may be located.
Any existing structure not in conformity with the provisions of this Ordinance may be altered during its remaining economic life, and permits for additions and alterations and for constructing accessory buildings thereto shall be given by the Building Commissioner in cases where the structure will not be substantially altered thereby.
No building or premises shall be used so as to create greater height, smaller yards or less unoccupied area than is permitted under the provisions of this Ordinance; and no building shall be occupied by more families than hereinafter prescribed for such building in the district in which it is located. No lot, which is now or may be hereinafter built upon, as herein required, may be so reduced in area so that the yard and open spaces provided about any building for the purpose of complying with the provisions hereof shall be again used as a yard, court or other open spaces for any other building.
Non-Conforming Uses
Section 1. Definition and Continuation Thereof
The lawful use of land, buildings or premises, existing at the time of the adoption and passage of this Ordinance may be continued, although such use does not conform to the provisions of this Ordinance.
Section 2. Extension
The lawful non-conforming use of a building or premises existing at the time of the adoption and passage, amendment, supplement or change of this Ordinance may continue, although such use does not conform with the provisions hereof.
Section 3. Changes
A non-conforming use may not be changed to another non-conforming use of greater restriction without the permission of the Board of Zoning Appeals regardless of whether or not structural changes are made or required to be made in the building or premises.
A non-conforming use when changed to a conforming use may not thereafter be changed back to any non-conforming use without the permission of the Board of Zoning Appeals.
Section 4. Discontinuance
Discontinuance for a period of one (1) year shall constitute abandonment of a non-conforming use.
Section 5. Reconstruction and Repair of Buildings and Premises
A lawful non-conforming use of a building existing at the time of the passage of this Ordinance and which building is damaged or destroyed by fire or other than by acts of the owner or agent, may be repaired or rebuilt, but the extent of the repairs or reconstruction shall not be greater than existed previously.
Section 6. Temporary Permit
The Board of Zoning Appeals may authorize, by written permission, in any district for a determinate period, a temporary building for commercial or industrial use incidental to the construction and development in said district."
The Jacobs contend that the terms of this ordinance, specifically Art. XX Sec. 3, allow them to utilize the property for a used car business since such use is a non-conforming use of the same restriction as prevailed at the time the ordinance was enacted, to-wit: C-4.
While such a change is not explicitly provided for, it is implicit in Section 3 of Article XX that an existing non-conforming use may be changed to a non-conforming use of the same or less restriction. This section is the only part of the ordinance which deals with changes of non-conforming uses. It does not explicitly prohibit such a change, nor does any other section of the ordinance. The only restrictions placed on changes relate to changes to a greater restricted use or changes after reversion to a conforming use. If the ordinance were interpreted as prohibiting any changes of use other than to a conforming one, Sect. 3 would serve no purpose. In addition, if the enacting authority had desired to restrict changes to the same or less restrictive non-conforming use, such restrictions could easily have been set forth in this section. It would be absurd to interpret the ordinance as permitting changes in use to a greater restricted use or the resumption of a non-conforming use under certain conditions but as not permitting changes of use to the same or less restricted classifications under any conditions. We cannot presume that the enacting body expected that the ordinance would be applied in such an illogical manner. In re Marriage of Lopp (1978), Ind., 378 N.E.2d 414; City of Indianapolis v....
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