Keeling v. Board of Zoning Appeals of City of Indianapolis

• Decision Date: 21 November 1946
• Docket Number: 17518.
• Citation: 69 N.E.2d 613,117 Ind.App. 314
• Parties: KEELING et al. v. BOARD OF ZONING APPEALS OF CITY OF INDIANAPOLIS et al.
• Court: Indiana Appellate Court

69 N.E.2d 613

117 Ind.App. 314

KEELING et al. v. BOARD OF ZONING APPEALS OF CITY OF INDIANAPOLIS et al.

No. 17518.

Appellate Court of Indiana, in Banc.

November 21, 1946

Appeal from Marion Circuit Court; Lloyd D. Claycombe, Judge.

Certiorari by Hal R. Keeling and others to review a decision of the Board of Zoning Appeals of the City of Indianapolis granting request of the Board of Trustees of the Fifty-First Street Methodist Church and the Board of Trustees of the Meridian Street Methodist Church for a permit for construction of a church in an area designated as residential by zoning ordinance. From a judgment affirming action of Board of Zoning Appeals, the petitioners appeal.

Affirmed.

Henry M. Dowling, of Indianapolis (Hartman & McManamon, of Indianapolis, of counsel), for appellant.

Arch N. Bobbitt, Corporation Counsel, Henry B. Krug, City Atty. Virgil Norris, Asst. City Atty., Albert M. Campbell, and Bobbitt, Martz & Beatty, all of Indianapolis, for appellee.

HAMILTON Chief Judge.

This was a proceeding initiated before the Board of Zoning Appeals of the City of Indianapolis by the Board of Trustees of the Meridian Street Methodist Church and the Board of Trustees of the 51st Street Methodist Church, hereinafter referred to as appellee churches, both located in the City of Indianapolis requesting a permit from the Board of Zoning Appeals of said city for the construction of a 'large Methodist Church,' combining the congregations of the Meridian Street Methodist Church and the 51st Street Methodist Church, to be located on certain lots between 54th Street and 56th Street and between Meridian and Illinois Streets in said city, with approximately 425 feet fronting in Meridian Street and approximately 246 feet fronting on Illinois Street. From an order of the board granting permission for the erection of said church under the authority granted the board under the provisions of Subsection (b) of Section 3 of the zoning ordinance of the City of Indianapolis, appellants filed their appeal to the Circuit Court of Marion County, Indiana, by way of a writ of certiorari as provided by Section 48-2305, Burns' 1933, and from a judgment of the Marion Circuit Court sustaining and affirming in whole the action of the Board of Zoning Appeals, appellants appealed to this court.

The error assigned is the overruling of appellants' motion for a new trial, which contained the specifications that: (1) The decision is not sustained by sufficient evidence; (2) the decision is contrary to law; and (3) to (16), inclusive, the court erred in excluding certain evidence.

No question is presented for our consideration relative to the rejection of evidence for the reason that in the motion for a new trial the objections made to the question, the offer to prove, if any was made, and the court's ruling thereon are not set forth. Kimmick v. Linn, 1940, 217 Ind. 485, 29 N.E.2d 207; Golden Guernsey Farms v. State, 1945, Ind.Sup., 63 N.E.2d 699.

The questions presented require a consideration of the zoning ordinance of the City of Indianapolis for the reason that the real estate involved is located within an area designated as residential by said zoning ordinance.

Pursuant to the authority granted in Section 48-2301, et seq., Burns' 1933, the common council of the City of Indianapolis duly enacted a zoning ordinance known as 'General Ordinance No. 114, as amended,' which provides in part as follows:

'Section 1. No buildings or premises shall be erected or used except in conformation with the regulations herein prescribed for the use, height and area districts in which such building or premises is located.

'Section 2. Classification of uses. For the purpose of this ordinance the various uses of buildings and premises are divided into groups, classes and subdivisions as set forth in the following classification of uses:

'Group 1. Residence Classes. Class U 1 uses. (Dwelling houses)

'(1) Dwelling.

'(2) Church, School, Public Library, Public Museum, Community Center Building, * * *.

'(3) Public Park, Public Playground, Public Recreation Building, * * *.

'Section 3. Dwelling House District: (a) In a class U 1 or dwelling house district no building or premises shall be used, and no building shall be erected which is arranged, intended or designed to be used for other than a U 1 use.

'(b) In a dwelling house district no building shall be erected which is arranged, intended or designed for a use enumerated in subdivision (2) of Class U 1 uses, unless such building is located: * * *

'(4) On a lot determined by the Board of Zoning Appeals after public notice and hearing to be so located that such building will, in the judgment of the said Board, substantially serve the public convenience and welfare, and will not substantially or permanently injure the appropriate use of neighboring property. * * *'

Under the authority granted by Section 48-2304, the Board of Zoning Appeals of said City of Indianapolis duly adopted and promulgated rules of procedure of which Article VII reads:

'Article VII. 1. In all cases where this Board may require personal notice to be given to interested parties, except as otherwise provided by law or ordinance, notice in the form prescribed by this Board shall be given by the petitioner by leaving or mailing said notice to the residence, or last known address, of the interested party, or parties, at least five (5) days before the date of hearing in such matter, and the petitioner shall file with this Board before such petition is heard an affidavit in the form prescribed by the Board to the effect that such service of notice as requested has been given.'

The application for a variance was filed by appellee churches with the Board of Zoning Appeals on August 16, 1945, and the hearing thereon was set for August 27, 1945. Notice on the prescribed forms was served upon the interested parties involved as property owners by registered mail, posted on August 22, 1945. Service of notice so served was proved by the required affidavit filed with the board.

Section 29 of the zoning ordinance provides that notice of a hearing must be published 'at least seven (7) days prior to the time fixed for such hearing.' Publication of notice of the hearing was made on August 20, 1945, and proof of such publication duly filed with the board.

It is asserted by appellants that the notice given as aforesaid was insufficient under the requirements of Section 29 of the zoning ordinance and Article VII of the rules of procedure, supra. Appellants' contention is based upon the proposition that five and seven full days of 24 hours each must elapse prior to the day of the hearing.

Section 2-4704, Burns' 1946 Repl., provides:

'The time within which an act is to be done, as hereinafter provided, shall be computed by excluding the first day and including the last.'

It has been uniformly held by both the Supreme Court and this court that notice such as was given in the instant case is sufficient under the requirements of the foregoing statute. Moag v. State, 1941, 218 Ind. 135, 31 N.E.2d 629; Mockford v. Iles, 1940, 217 Ind. 137, 26 N.E.2d 42; Klein v. Tuhey, 1895, 13 Ind.App. 74, 75, 40 N.E. 144; Sexton v. Goodwine, 1904, 33 Ind.App. 329, 330, 68 N.E. 929, 70 N.E. 999.

Furthermore, appellants appeared in person and by their attorney at the hearing held on August 27, 1945, and protested the granting of the petition of appellee churches. Such appearance amounted to a waiver of any irregularity or imperfections in the service of notice. Slinkard v. Hunter, 1936, 209 Ind. 475, 480, 199 N.E. 560; Vandever et al. v. Garshwiler et al., 1878, 63 Ind. 185, 192. Therefore, we hold that the notice which was given was sufficient.

Appellants most earnestly insist that the decision of the trial court is not sustained by sufficient evidence for the reason that the evidence in the record tending to support the decision is such proportionately meager evidence as compared to the evidence opposing the granting of the petition for the erection of a church building by the appellee churches as to justify a reversal of this cause.

The Board of Zoning Appeals is an administrative agency created by the legislature for the purpose of administering the zoning law.

In the case of Warren v. Indiana Telephone Co., 1940, 217 Ind. 93, on page 118, 26 N.E.2d 399, on page 409, the Supreme Court states the rule which governs in determining whether or not a finding of fact by an administrative agency is supported by the evidence in the following language: 'The question of the sufficiency of the evidence to support an administrative order does not depend upon whether such evidence was received in conformity with the rules applicable to proceedings in courts; nor will the reviewing tribunal weigh conflicting evidence; enter into the field of determining the credibility of the witnesses; or consider an exercise of discretion, in the absence of a showing of an abuse thereof. These matters are the peculiar responsibility of the hearing agency. In the final analysis, the finding of an administrative agency will not be disturbed when it is subjected to the scrutiny of a judicial review, upon the claim that it is not supported by the evidence, unless it is made to appear that the finding does not rest upon a substantial factual foundation. This may be determined from a re-examination of the evidence upon which the administrative agency acted, or by the original reviewing court hearing evidence, depending upon the legislative scheme under which the agency operates.'

In the case of Board of Zoning Appeals of City of Indianapolis v. Waintrup, 1935, 99 Ind.App. 576, 584, 193 N.E. 701 703, this court held: 'There is no law that requires the board of zoning...