Kelley v. Walker
| Decision Date | 30 September 1974 |
| Docket Number | No. 1--374A43,1--374A43 |
| Citation | 161 Ind.App. 591,316 N.E.2d 695 |
| Parties | John KELLEY et al., Appellants (Plaintiffs Below), v. Paul WALKER, Zoning Administrator of Shelby County, et al., Appellees(Defendants Below). |
| Court | Indiana Appellate Court |
Brunner, Brown & Brunner, Shelbyville, for appellants.
J. Lee McNeely, Shelbyville, for appellees.
Plaintiffs-appellants (Kelleys) initiated this action in equity, seeking to enjoin the enforcement of an ordinance which rezoned the property adjacent to the property owned by Kelleys. The action centers around the Shelby County Plan Commission and its recommendation to the Board of Commissioners of Shelby County that the tract in question be rezoned from A--1, Agricultural, to B--3, Commercial. Trial was had to the court, after which the court made findings of fact and conclusions of law thereon and entered judgment against Kelleys.
Kelleys, in their brief to this court, have consolidated the specifications of the motion to correct errors into two issues and we shall treat them accordingly.
The first issue in this appeal is whether the Plan Commission acted in an arbitrary and capricious manner when it recommended the adoption of the ordinance in question. Evidence was presented to the Plan Commission at a hearing on December 28, 1971, by the petitioner seeking the rezoning as well as by the objectors thereto. After the hearing the Plan Commission took the matter under advisement and postponed further action until January 25, 1972, at which time the district conservationist was to make a report regarding soil and water characteristics of the proposed site. On January 25, 1972, another public hearing was held, the report of the conservationist was heard, discussed, and considered by the Plan Commission, after which the Plan Commission recommended that the area be rezoned from A--1 to B--3.
Kelleys contend that the actions of the Plan Commission were arbitrary and capricious in that the decision by the Plan Commission was not supported by any evidence and that the Plan Commission failed to follow its own rules of procedure pertaining to rezoning. The rules of procedure in question read, in pertinent part, as follows:
'It is recognized that the following factors shall be given complete consideration in any action on all rezoning petitions.
a. Location
b. Need
c. Topography
d. Increased demands on streets and utilities
e. Effect on adjacent property
f. Relationship to general land use pattern of neighborhood and community
g. Relationship to the comprehensive zone plan, and
h. Relationship to future land use plan
i. That generally, the test is not one of size but of demonstrated community need
j. Finally, that zoning is not a tool for special privilege for use of individuals, pressure groups, or public officials.'
Kelleys argue that no evidence was presented to the Plan Commission on many of the factors hereinabove set out and that this lack of evidence establishes that the Plan Commission made the recommendation based on their own information rather than on evidence presented to them by the petitioner. Further, Kelleys point out that two of the board members who voted to approve the rezoning were not present at the first meeting of the Plan Commission and thus voted without hearing any evidence whatsoever.
Arbitrary and capricious conduct has been defined by this court as follows:
'. . . Arbitrary or capricious action on the part of an administrative board means willful and unreasonable action, without consideration and in disregard of the facts or circumstances of the case; action taken without some basis which would lead a reasonable and honest man to such action. . . .'
It must be remembered that on appeal this court must operate under the presumption that the trier of fact acted properly and not arbitrarily and capriciously. Guevara v. Inland Steel Co. (1951), 121 Ind.App. 390, 95 N.E.2d 714.
The test to be used on appeal in cases such as this was set out in the case of Kinzel v. Rettinger (1972), Ind.App., 277 N.E.2d 913, 914--915, as follows:
'. . . Appellants, having initially sought the injunction against Appellees in the trial court, had the burden of proving the allegation that Appellees acted in an arbitrary and capricious manner. The trial court denied the relief sought, and Appellants are appealing from that negative verdict. A verdict against the party with the burden of proof presents no question to this court on the grounds of insufficiency of the evidence. . . .
. . . the only issue presented here for review is whether the action of Appellees was arbitrary and capricious, in that there were no facts which would lead a reasonable and honest man to take the action taken by Appellees. Only actions of an administrative body which are found to be arbitrary and capricious will be set aside by a court. . . .
Furthermore, the law of Indiana is clear that the burden is on the party seeking to upset an administrative order to show that there are no substantial facts to support the finding or action taken. . . . In this regard this court need only determine whether there is any evidence of probative value to support the judgment of the trial court and for this purpose only the evidence and inferences most favorable to the judgment below are to be considered. . . .'
See, also, Metropolitan Board of Zoning Appeals v. Sheehan Construction Co. (1974), Ind.App., 313 N.E.2d 78.
The action in the case at bar was brought by the Kelleys, who had the burden of proving the material allegations of their complaint. Thus, Kelleys are appealing from a negative judgment and this court need only determine whether there is any evidence of probative value to support the judgment of the trial court. The evidence most favorable to the decision of the trial court indicates that evidence was presented to the Plan...
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