Johnson County Plan Commission v. Fayette Bldg. Corp.

• Decision Date: 28 June 1973
• Docket Number: No. 1--672A21,1--672A21
• Parties: JOHNSON COUNTY PLAN COMMISSION et al., Appellants (Respondents Below), v. FAYETTE BUILDING CORPORATION, Appellee (Petitioner Below).
• Court: Indiana Appellate Court

Page 899

297 N.E.2d 899

156 Ind.App. 557

JOHNSON COUNTY PLAN COMMISSION et al., Appellants (Respondents Below), v. FAYETTE BUILDING CORPORATION, Appellee (Petitioner Below).

No. 1--672A21.

Court of Appeals of Indiana, First District.

June 28, 1973.

Rehearing Denied July 30, 1973.

Roy L. Dickinson, James B. Young, Young & Vandivier, Franklin, for appellants.

William F. LeMond, Indianapolis, H. Harold Soshnick, Soshnick & Bate, Shelbyville, for appellee.

LYBROOK, Judge.

Fayette applied for a special exception to permit the construction of an 845 unit mobile home park. This was denied by the Johnson County Board of Zoning Appeals (Board).

Fayette filed a petition for writ of certiorari and after further proceedings the Circuit Court reversed the decision of the Board, authorizing construction of the park. This appeal follows.

Fayette is the contract purchaser of certain real property in Clark Township, Johnson County, Indiana. Clark Township is zoned primarily for agricultural uses, and development of property as a mobile home park is contemplated within the Master Plan as a 'Special Exception'.

At the April 15, 1971 meeting, the Johnson County Plan Commission went on record as opposing the development and sent their recommendation to the Board of Zoning Appeals.

On June 3, 1971, after hearing evidence, the Board denied the application, making the following findings:

'1. That there has not been sufficient evidence shown that the condition of the land is suitable for a mobile home park.

2. That the roadway network is presently insufficient and, evidence has not been presented that it can be widened to sufficiently carry the added traffic of the proposed mobile home park; and specifically, the evidence shows that the roadway width on the roads which will serve the land under consideration for a special exception are between eighteen (18) and twenty (20) feet in width, with possible future widening potential to a width of twenty-two (22) feet.

3. That insufficient evidence has been presented, and that there is a conflict in the evidence that was presented, as to the drainage of the proposed land under consideration and the drainage impact upon the existing Griffith Ditch and to the other ditches which service the area.

4. That evidence was presented and unrefuted by the petitioner that the Clark Pleasant School taxing district faced serious problems as to school tax revenue, school indebtedness and the abailability (sic) of tax monies for school construction, school bus transporation, teachers' and employees' wages, etc. James L. Martin seconded the motion and roll call of votes showed Floyd Vanlaningham, William Eastburn, Paul Wocherfeng, James L. Martin and John L. Rhoades all voting to deny the petition. Motion denied 5--0.'

Fayette then timely filed its petition for writ of certiorari, alleging, inter alia, that Fayette had introduced substantial evidence to the Board that the special exception requested was consistent with the spirit, purpose, and intent of the ordinance, would not substantially and permanently injure the appropriate use of neighboring property, and would serve the public convenience and welfare; that evidence presented before the Board in opposition to the application was of no legal significance in consideration of the total evidence presented; that the Commission and Board have, under the Master Plan, practiced systematic exclusion of mobile home parks; and that the decision of the Board is contrary to law and fact.

Following a hearing on the petition for writ of certiorari, the trial court reversed the decision of the Board and entered its Special Findings of Fact, Conclusions of Law, Judgment and Decree, ruling, inter alia:

'8. The Court further finds that substantial evidence, unrefuted, was presented to the Board that all requirements of such special exception had been or will be met.

9. The Court further finds that no evidence was introduced to indicate that the special exception would 'substantially and permanently injure the appropriate use of neighboring property'.

10. The Court further finds that said special exception is consistent with the spirit, purpose and intent of the Master Plan and will serve the public convenience and welfare.

11. The Court further finds that there has been no systematic exclusion of a type of development essential to low and moderate income families on the part of the Johnson County Board of Zoning Appeals.

12. The Court further finds that no evidence was presented to the Board to justify the refusal of an Improvement Location Permit, and that the evidence presented to the Board by the Petitioner substantially complied with all requirements for the special exception as set forth in the ordinance.

13. The Court, therefore, concludes as a matter of law on the above finding of facts, that the law is with the Petitioner, Fayette Building Corporation, and against the Respondents.

WHEREFORE, IT IS ORDERED, ADJUDGED AND DECREED that the finding and decision (sic) of the Johnson County Board of Zoning Appeals, appealed from herein, is illegal and is hereby reversed.'

Commission timely filed its Motion to Correct Errors, alleging that the court's above findings 8, 9, 10 and 12 are contrary to law and contrary to evidence. Commission appeals, presenting as the sole issue for review whether the trial court erred in overruling its Motion to Correct Errors.

In its brief Fayette presents the following cross-assignment of errors:

'1. Whether the Johnson County Plan Commission and Johnson County Board of Zoning Appeals through its Master Plan Zoning Ordinance and the administration thereof has systematically engaged in exclusionary zoning practices to prevent housing opportunities for low and moderate income citizens in contravention of Federal and State Constitutions; and,

2. Whether the Johnson County Plan Commission and Johnson County Board of Zoning Appeals in the practical administration of its zoning ordinances has systematically engaged in exclusionary zoning practices to prevent housing opportunities for low and moderate income citizens in violation of the Civil Rights Act of 1964 and the Fair Housing Act of 1968; and,

3. Whether the Johnson County Master Plan Zoning Ordinance in its application to Appellee's property is in violation of the Indiana Constitution as having no reasonable relationship to the exercise of the police power of the State in the interests of the public health, safety and general welfare of its citizens.'

Decisions of Boards of Zoning Appeals are subject to review by certiorari. The procedure is set out at I.C.1971, 18--7--5--87; Ind.Ann.Stat. § 53--783 (Burns 1964).

'Any person or persons, firm or corporation jointly or severally aggrieved by any decision of the board of zoning appeals, may present to the circuit or superior court of the county in which the premises affected is located a petition duly verified, setting forth that such decision is illegal in whole or in part, and specifying the grounds of the illegality. (Our emphasis.)

This statute has been construed as limiting the trial court's scope of review to a determination of the legality of the decision. See, Board of Zoning Appeals v. American Fletcher National Bank (1965), 139 Ind.App. 9, 205 N.E.2d 322; Fryer v. City of New Albany (1963), 135 Ind.App. 454, 194 N.E.2d 417; and Board of Zoning Appeals v. School City of Mishawaka (1957), 127...